Mattone, Joseph - Decision, December 29, 1994

Decision, December 29, 1994

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter of

- of -

the Applications of

JOSEPH M. MATTONE

159-18 Northern Boulevard
Flushing, Queens, New York 11358

Pursuant to Environmental Conservation Law ("ECL")
and Title 6 of the Official Compilation of Codes,
Rules and Regulations of the State of New York
("6 NYCRR") for permits to construct a steel sheet piling
bulkhead and place fill in Little Neck Bay seaward of
a deteriorating concrete seawall in front of his home
at 37-20 Regatta Place, Douglaston, Queens, New York

DEC Project Number 2-6303-00053/00001-0

DECISION

December 29, 1994

DECISION OF THE COMMISSIONER

The attached Hearing Report of Administrative Law Judge ("ALJ") Robert P. O'Connor, including its Findings of Fact, Conclusions, Discussion and Recommendation, in the matter of the application of Joseph M. Mattone (the "Applicant"), 159-18 Northern Boulevard, Flushing, New York 11358, for Tidal Wetlands and Protection of Waters Permits and a Water Quality Certification, is hereby adopted as my Decision in this matter.

The Applicant proposes to construct 250 linear feet of steel sheet piling bulkhead with associated sand backfill, to be located on the Applicant's property at 37-20 Regatta Place, Douglaston, Queens, New York. The bulkhead would be constructed in Little Neck Bay approximately 30 feet seaward of an existing deteriorating seawall and would require the placement of fill within a 4,600 to 5,500 square foot area of mapped tidal wetlands on the site. The Applicant's purpose in pursuing this project is to provide erosion control and flood protection for his property.

For a Tidal Wetlands Permit, the Applicant must demonstrate the proposed project is compatible with the policy of the Tidal Wetlands Act, ECL Article 25, to preserve and protect tidal wetlands and to prevent their despoliation and destruction such that the project will not have an undue adverse impact on the present or potential values of the affected tidal wetlands, while also taking into account the social and economic benefits of the project [6 NYCRR 661.9(a)(i)]. Additionally, the Applicant must show the proposed project is reasonable and necessary in view of reasonable alternatives and also that the project complies with the use guidelines set forth in the Tidal Wetlands Land Use Regulations [6 NYCRR 661.9(a)(1)(iii)]. For a Protection of Waters Permit, the Applicant must also demonstrate that the project is reasonable and necessary and that it will not cause unreasonable and unnecessary damage to the natural resources of the State [6 NYCRR 608.6(a)]. A Water Quality Certification may be issued only if the project complies with all other applicable statutory and regulatory criteria [see 6 NYCRR 608.7(a)].

As discussed in the Report, the proposed project is not compatible with the policy of the Tidal Wetlands Act and would have an undue adverse impact on tidal wetlands values. For an undetermined time, while the newly created tidal wetlands are becoming established, the site's tidal wetlands values would be significantly reduced. Depending on the success of the mitigating tidal wetlands, the values of the wetlands for marine food production and wildlife habitat would likely recover but, based on the best available projections, not completely. With the loss of tidal wetlands on the site, the overall capacity of the wetlands to cleanse ecosystems, absorb silt and organic material and provide flood, hurricane and storm control would be permanently diminished. The values of recreation, education and research are currently not significant and would likely be unchanged. The value of open space and aesthetic appreciation would be permanently adversely impacted by the project's protrusion into Little Neck Bay.

Although the loss of tidal wetland benefits must be considered in the context of the social and economic benefits of the project [see 6 NYCRR 661.9(b)(1)(i)], the record shows that the design of the proposed flood and erosion control structure is based upon storm condition data which are inflated beyond the point of being reasonably anticipated to occur at the project site. The proposed structure is grossly overdesigned for the level of storm protection warranted in the southern end of Little Neck Bay and a more modest project with less impact on the tidal wetland could serve the Applicant's legitimate purposes. Hence, I conclude that this project is not reasonable and necessary.

The proposed project does not meet the permit issuing standards for issuance of a Tidal Wetlands Permit and for a Protection of Waters Permit, and thus does not qualify for issuance of a Water Quality Certification, either. However, I am sensitive to the Applicant's need to protect the investment he has in his home and property from damage during extreme storms. While the requested permits are being denied, this denial is without prejudice to the resubmission of the necessary permit applications for a more modestly sized project, based upon realistic storm condition design criteria, which would still afford flood and erosion protection at the Applicant's site.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this 29th day of December, 1994.

DEPARTMENT OF ENVIRONMENTAL CONSERVATION
LANGDON MARSH, COMMISSIONER
/s/

To: Joseph M. Mattone
159-18 Northern Boulevard
Flushing, New York 11358

Christopher Todd, Esq.
Mattone, Mattone, Mattone, Mattone,
Mattone, Megna and Todd
19-02 Whitestone Expressway
Whitestone, New York 11357

Steven Goverman, Esq.
Assistant Region 2 Attorney
New York State Department of
Environmental Conservation
47-40 21st Street
Long Island City, New York 11101

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter

- of -

the Applications of

JOSEPH M. MATTONE

159-18 Northern Boulevard
Flushing, Queens, New York 11358

Pursuant to Environmental Conservation Law ("ECL")
and Title 6 of the Official Compilation of Codes,
Rules and Regulations of the State of New York ("6 NYCRR")
for permits to construct a steel sheet piling
bulkhead and place fill in Little Neck Bay seaward of
a deteriorating concrete seawall in front of his home
at 37-20 Regatta Place, Douglaston, Queens, New York

DEC Project Number 2-6303-00053/00001-0

HEARING REPORT

- by -

/s/
Robert P. O'Connor
Administrative Law Judge

PROCEEDINGS

On June 21, 1993, Joseph M. Mattone (the "Applicant") applied to the New York State Department of Environmental Conservation ( the "Department" or DEC") through the Department's Region 2 office in Long Island City, Queens, New York for various DEC permits in conjunction with his proposal (the "Project") to install approximately 250 linear feet of steel sheet piling seawall to be located in Little Neck Bay some 30 feet seaward of an existing deteriorating concrete seawall on the Applicant's property at 37-20 Regatta Place, Douglaston, Queens, New York (the "Site"). The Project would also involve the placement of fill within an approximately 4,600 to 5,500 square foot area of tidal wetlands in Little Neck Bay in the area between the existing concrete seawall and the proposed steel sheet piling. The stated purpose of the proposed Project is to provide erosion control and flood protection for the Applicant's property.

The permits applied for include a Tidal Wetlands Permit pursuant to Environmental Conservation Law ("ECL") Article 25 (Tidal Wetlands) and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 661 (Tidal Wetlands -- Land Use Regulations), a Protection of Waters Permit and a Water Quality Certification, both pursuant to ECL Article 15 (Water Resources) and 6 NYCRR Part 608 (Use and Protection of Waters). Additional permits and/or approvals for the proposed Project are required from the U.S. Army Corps of Engineers, the New York State Department of State for coastal zone consistency, and from the New York City Department of City Planning - Waterfront and Open Space Division.

Following submittal of the initial applications, there were numerous exchanges of correspondence, issuance of two Notices of Incomplete Application by the Staff and proposed modifications to the Project by the Applicant to address various concerns which had been raised. The most significant modification involved the Applicant's proposal to create a tidal wetlands area larger than the existing area of tidal wetlands on the Site (7,000 square feet vs. 5,500 square feet) as mitigation for the wetlands which would be filled by the Project. After an April 19, 1994 meeting with the Applicant and his representatives, on April 23, 1994, the Department's Region 2 Staff, pursuant to the provisions in 6 NYCRR 621.5(f), deemed the applications for the above noted permits complete for the purpose of commencing the review of the proposed Project.

On May 19, 1994 the Department's Region 2 Staff issued a Negative Declaration for the proposed Project. Following the review of the Applicant's proposal, on May 24, 1994 the Department's Region 2 Staff issued a denial of the requested permits on the basis that the Project as proposed does not comply with the Tidal Wetlands Land Use Regulations and does not meet the statutory and regulatory standards for permit issuance.

The Staff's denial relates solely to the Project as it is currently proposed. The Department Staff is willing to approve a project which would meet the Applicant's stated objectives, but only subject to the specific conditions noted below. On June 2, 1994, pursuant to 6 NYCRR 621.9, the Applicant requested a hearing to contest the Staff's denial of permits for the proposed Project.

On June 30, 1994, the Staff amended the Negative Declaration to be a Conditioned Negative Declaration. Based on its analysis of the application documents, the Staff determined the Project, as it is currently proposed, "will result in some significant adverse environmental impacts."

The anticipated impacts include, but are not limited to, degradation of surface water quality/quantity in Little Neck Bay, potential for increased erosion on adjacent properties, aesthetic impacts, loss of tidal wetlands significant habitat for finfish, shellfish and wildlife, contravention of local community plans and goals, precedent for neighboring landowners to request similar projects resulting in cumulative impacts and further loss of tidal wetlands. However, the Staff also determined these impacts could be mitigated if the Project is conditioned as follows.

Since the stated purpose of the Project is to protect the Applicant's property from flooding, "(T)he existing seawall could be reconstructed in place. Fill material could then be placed landward of the reconstructed seawall. Placement of any fill material seaward of the reconstructed seawall is prohibited. This would restore the previous level of protection from flooding without the loss of tidal wetlands."

Alternatively, "A new higher bulkhead could be constructed in line or within 18 inches of the existing seawall. Fill material could then be placed landward of the new seawall. Placement of any fill material seaward of the new seawall is prohibited. This would provide even greater protection from flooding than a reconstructed seawall without the loss of tidal wetlands."

A Combined Notice of Complete Application, Notice of Conditioned Negative Declaration of Significance and Notice of Public Hearing was published in the Department's Environmental Notice Bulletin on July 13, 1994 and in The Little Neck Ledger on July 14, 1994.

On August 3, 1994, Administrative Law Judge ("ALJ") Robert P. O'Connor, from the Department's Office of Hearings, conducted a legislative public statement hearing at 10:00 A.M. in the Zion Episcopal Church Hall, 243-01 Northern Boulevard, Douglaston, Queens, New York to receive comments on the proposed Project and the Applicant's request to review the Staff's permit denial. Including the Applicant and his representatives, and the Department Staff, approximately 30 to 35 persons attended the legislative hearing. Additionally, written comments were received through the August 12, 1994 deadline noted in the Hearing Notice.

The comments received both orally during the hearing and via the written submittals, by a more than two to one margin, opposed the proposed Project and supported the Staff's suggested alternatives as being the most appropriate measures for protecting the Applicant's home from flooding.

Issues Conference and Appearances

Immediately following the legislative hearing, at approximately 11:20 A.M. on August 3, 1994, a pre-adjudicatory hearing issues conference was conducted in the same location (Zion Church). Participants at the issues conference were as follows.

The Applicant was represented by the law firm of Mattone, Mattone, Mattone, Mattone, Mattone, Megna and Todd, Christopher J. Todd, Esq., of Counsel.

The Department Staff was represented by Steven Goverman, Esq., Assistant Regional Attorney, in the Department's Region 2 Office in Long Island City, Queens, New York.

Pursuant to 6 NYCRR 624.5(a) the Applicant and the assigned Department Staff are automatically full parties to the proceeding.

The State of New York Northeastern Queens Nature and Historical Preserve Commission, 49-04 Enfield Place, Bayside, Queens, New York, by a letter from Lucille Helfat, Chairperson, applied to participate at the issues conference. At the issues conference, the Commission's representative, Joan M. Vogt, Executive Director, was unable to support the Commission's request. Therefore, party status was denied to the Commission.

The Udalls Cove Preservation Committee, Inc., through its President, Ralph Kamhi, also applied for full party status. However, at the issues conference, Mr. Kamhi noted that the Committee was not prepared to present expert witnesses, but rather he would be satisfied to submit the Committee's concerns in writing for inclusion in the hearing record. On this basis, the Committee's application for full party status was denied. Mr. Kamhi's additional comments on behalf of the Committee were received by the August 12, 1994 deadline.

The issues agreed upon for adjudication had been initially identified in a May 24, 1994 letter from the Department Staff to the Applicant which denied the applications for permits. These issues were:

1. Are the proposed activities a "presumptively incompatible use" according to the policy and objectives of the Tidal Wetlands Act, ECL Article 25. [6 NYCRR 661.5(b)(27), (29) and (30)]? Is the project compatible with the preservation, protection or enhancement of present and potential tidal wetlands values at the site? [6 NYCRR 661.5(a)(3)]
2. Are the characteristics of the site's stable shoreline representative of an area of high wave energy? Is a bulkhead of the type and size proposed by the Applicant is not reasonable or necessary in this area? [6 NYCRR 661.9(b)(1)(iii)], [6 NYCRR 608.6(a)]
3. Would the proposed project alleviate the wave and flood damage from a large storm which could still overtop the structure and flood the residence? Additionally, since the immediately adjacent neighboring properties are not similarly protected, could high storm waters easily migrate from the neighboring properties and flood the Applicant's property? Would the project destroy valuable tidal wetlands without providing the sought after protection, i.e. -- without the required balancing of environmental, social and economic benefits? [6 NYCRR 661.9(b)(1)(i)]
4. Are there viable alternatives to the proposed project such as rebuilding and raising the existing seawall or constructing a new and higher bulkhead within 18 inches of the existing seawall? [6 NYCRR 661.9(b)(1)(iii)] Could a storm protection project be constructed without sacrificing existing tidal wetlands values? [6 NYCRR 661.9(b)(1)(v)]

Adjudicatory Hearing

With the identification of the above noted adjudicable issues related to the Applicant's proposal and the participation of the Applicant and Department Staff as the sole parties to the proceeding, an adjudicatory hearing was commenced, following the issues conference, at approximately 1:15 P.M. on August 3, 1994 in the same location (Zion Church). The Applicant's first witnesses were Joseph M. Mattone (the Applicant) and Mary Ann Mattone, his wife. After the opening session of the adjudicatory hearing had concluded, a site visit was conducted. Present at the site were the ALJ, the Applicant with his consultants, and several Department Staff members.

The adjudicatory hearing continued and concluded on Tuesday, August 9, 1994 with testimony from the Applicant's son, Carl Mattone, and his expert witnesses, Anthony M. DePasquale, P.E., an engineer with Charles F. Vachris, P.E., Consulting Engineers and Charles W. Bowman, President of Land Use Environmental Corporation. The Department presented only one witness, James J. Gilmore, Jr., Natural Resources Supervisor in the Department's Region 2 Office.

The stenographic transcripts of the August 3, 1994 proceedings were received in the Office of Hearings on August 18, 1994, with the August 9, 1994 transcript arriving at the Office of Hearings on August 22, 1994. By prior agreement of the parties and the ALJ, the due date for initial briefs was September 9, 1994. Because of a delay in the delivery of transcripts of the proceedings to the Department's Region 2 Office, with the Applicant's concurrence, I granted the Staff's request for an extension of the briefing date to September 23, 1994.

Included with the Staff's September 23, 1994 initial brief was an affidavit prepared by William W. Daley, P.E., Chief of the Department's Coastal Erosion Management Section. The Applicant's "revised Vachris Report" entitled "Flooding and Erosion Control Case Studies/Structural Alternatives for Mattone Residence, 37-20 Regatta Place, Douglaston, New York" and dated July 1994 was only submitted to the Department Staff during the August 9, 1994 hearing session. The Staff, therefore, sought leave to have a Staff engineer review and provide comments on any new information in the revised report. The Applicant concurred with the Staff's request on the condition he would have the opportunity to respond to questions of fact. I thus allowed the Department Staff submission of such an affidavit.

The Applicant sought leave to respond to the Daley affidavit, and I granted his request. Then with the concurrence of the Department Staff, I granted the Applicant's additional request for an extension of his response brief due date to October 21, 1994. The Applicant's response brief was received in the Office of Hearings on October 21, 1994, and the hearing record was closed on that date. The Staff submitted a reply brief, as well. The Applicant objected to this submission on the grounds that no provision had been made for the Staff to submit a reply brief. On October 26, 1994, I ruled that the Staff's reply brief should be disregarded.

Subsequent to the closing of the record, the Department Staff, on October 25, 1994, requested the opportunity to respond to motions included in the Applicant's closing brief. I granted the Staff's request, imposing a submission date of October, 31, 1994. Following receipt of the Staff's response on that date, I issued a Ruling on the Motions on November 7, 1994. In my Ruling, I did reject several of the paragraphs in the Daley affidavit, although I did not strike the entire document as requested by the Applicant.

FINDINGS OF FACT

Background

1. The Applicant, Joseph M. Mattone, has owned property and resided at 37-20 Regatta Place, Douglaston, Queens County, New York for approximately 24 or 25 years. The location of the property is at the most seaward point of land on the southeasterly shore of Little Neck Bay, approximately three-tenths of a mile northeast of the juncture of Alley Creek with the Bay. The property's shorefront is bounded by a stone and cement seawall, referred to by the Department Staff as a "gravity seawall," i.e. -- one built without lateral support. The existing seawall dates to the early part of this century, and its condition has, over time, deteriorated, such that the wall has crumbled and in places collapsed. The original height of the seawall was approximately 8.5 feet above mean sea level ("+8.5' msl"), also referred to at the hearing as National Geodetic Vertical Datum ("NGVD").
2. A unique characteristic of the Applicant's property, among the neighboring properties, is that the Applicant obtained rights to the adjoining lands under water, i.e. -- seaward of the seawall, as successor in interest to the Ellen Robbins Parsons grant in an area which was previously known as Parsons Point. Thus, the Applicant is the riparian or, more correctly, the littoral owner of the seabed extending out 400 feet into Little Neck Bay. The Applicant has paid taxes on the pro rata area of the grant, i.e. -- the underwater lands, for some 25 years.
3. The Applicant's residence at this location is a large two story brick structure, with an attached deck and sunroom on the first floor level which face Little Neck Bay. The basement of the house contains the home's mechanical equipment and is also finished for additional living/recreation space. The basement features walkout access through multiple sliding glass doors to patio areas at grade level which front the Bay. The basement floor elevation is at +12.2' msl.
4. The residence was constructed in accordance with the applicable codes, rules and regulations which were in effect in the early 1970's. The home is located approximately 30 - 35 feet from the existing seawall. It is very unusual and atypical for a house on the north shore of Long Island to be located so close to the water.
5. In the early 1970's, shortly after moving to the Regatta Place residence, the Applicant experienced a storm event which caused him to believe the existing seawall would not protect his home to the degree which he felt was adequate. He applied to the Department in 1973 for a permit to fill in the land within the grant to afford him more protection from storm events. The Applicant then learned none of his neighbors had perfected title to the underwater lands seaward of their respective properties. Thus, knowing that none of his neighbors would be able to place fill in the Bay, the Applicant abandoned his plans at the time. Rather, the Applicant decided to repair and reinforce the existing seawall.
6. The Applicant experienced at least one other major storm event between the early 1970's and Hurricane Hugo on September 22, 1989. However, the effects of Hugo were severe enough that the Applicant's seawall was cracked and weakened. Again, the Applicant reinforced the seawall. Additionally, following Hugo the Applicant, using steel reinforcing rods, concrete block and poured concrete, elevated the height of the seawall approximately 2.5 feet above its original height, to a total height of approximately +11' msl. At the time of this reconstruction, numerous pieces of statuary approximately three feet in height were affixed to the top of the seawall. Thus, the tops of the statues' heads were at approximately elevation +14' msl.

Nor'easter of December 1992

7. In mid-December 1992, an exceptionally severe "nor'easter" struck the northeastern United States and caused widespread shorefront damage. The Applicant's seawall suffered extensive damage during this storm, with an approximately 60 foot section of the wall completely collapsing into the Bay.
8. The seawall was overtopped by the storm waters in Little Neck Bay, and the yard between the house and the seawall was flooded. A best estimate by one of the Applicant's sons who was present during the storm was that the water at times, e.g. -- at the peak of the storm when the waves were cresting over the tops of the statues' heads, was approximately three feet above the top of the seawall or at approximately +14' msl.
9. As the Bay waters approached the house, members of the Applicant's family undertook procedures to protect the residence from the forces of the storm. They placed plywood sheets against the sliding glass doors and laid sand bags at the base of the plywood. Even though waves one to two feet high were breaking against the basement level of the house, the protective measures were effective in preventing breakage of the glass in the sliding glass doors.
10. Although the protective measures prevented any structural damage to the house from the force of the waves, the height of the water against the basement exterior of the house was approximately one to two feet or +13.2' to +14.2' msl. This resulted in approximately two feet of water in the basement, where the flooding caused interior damage. The high water deposited a layer of silt on the Applicant's brick patio and caused upheaval of some of the patio bricks. The force of the flood waters moved "river rock", i.e. -- fist-sized drainage stone, from its location next to the seawall up onto the Applicant's lawn and patio areas.
11. The home immediately to the south of the Applicant's is the Santora residence. The seawall in front of the Applicant's property extends south to front the Santora property as well. At some time in the past the Santora's seawall was extended upward approximately three feet with a brick and mortar structure. The raised brick wall surrounds an at grade deck with built-in swimming pool. The Santora's brick wall was cracked from the force of the storm waters. Their property was also flooded during the December 1992 nor'easter, although not to the extent experienced at the Applicant's property.
12. The home immediately to the east of the Applicant's is the Gargano residence. The seawall in front of the Applicant's property also appears to extend east to front the Gargano property as well. The extent of storm and flood damage to the Gargano property is unknown, although the Applicant characterized it as "some damage," with the implication being that since the Gargano property is farther to the east and away from the Applicant's point of land the Gargano property does not receive the brunt of the wave action during storm events and any damage the Gargano property received was less than that experienced by the Applicant.

The Tidal Wetlands/Protection of Waters Permit Application

13. As a result of the property damage caused by the December 1992 nor'easter, in July 1993 the Applicant applied to the Department Staff for a permits to build a storm and flood protection/erosion control structure in front of the existing seawall to afford more protection to his home during storm events. The Applicant's proposal was to install approximately 277 feet of steel sheet piling across the lateral expanse of his underwater property approximately 25 to 30 feet seaward of the existing seawall and backfill the area between the old seawall and the new bulkhead with sand.
14. In February 1994, the Department Staff advised the Applicant that, pursuant to the tidal wetlands use guidelines in 6 NYCRR 661.5, the proposed project was a presumptively incompatible use. The Staff also stated that the project as proposed did not comply with the standards for the issuance of tidal wetlands permits in 6 NYCRR 661.9. Therefore, unless the project was modified to place the new bulkhead within 18 inches of the existing seawall, the Staff would oppose permit issuance.
15. In response to the Staff's opposition, the Applicant submitted a revised proposal that kept the bulkhead and fill portion of the project in essentially the same location, but provided for mitigation of the adverse impacts of filling tidal wetlands by creating an enhanced tidal wetlands area seaward of the steel sheet piling bulkhead.
16. Following a meeting between the Department Staff and the Applicant and his representatives and the exchange of much correspondence, including an engineering report which considered alternatives to the proposed project, the Department Staff denied the permit applications. The Staff cited the following reasons as the basis for denial: that the filling and construction in a tidal wetland, even with the Applicant's mitigation plans, would result in a net loss of tidal wetland habitat; that the project is incompatible with the preservation of existing tidal wetland values at the site; that the project is not reasonable and necessary to dissipate high energy waves; that the project would not alleviate the flood damage potential to the Applicant's property posed by a large storm; and that a viable alternative exists in reconstructing a new and higher bulkhead within 18 inches of the existing seawall.
17. The Applicant contends that he is entitled to a reasonable protection for his home; that he owns and pays taxes on the land upon which the construction would occur; that he would spend $250,000 to accomplish the project, none of which is covered by any form of insurance; and that the mitigation plan to relocate existing and plant new tidal wetlands vegetation would enhance wetlands values in an area which is currently unproductive.
18. The current application, then, is to install some 250 linear feet of steel sheet piling bulkhead with a top elevation of +12.75' msl and backfill with approximately 2,000 cubic yards of sand between the new bulkhead and the existing seawall. A graphic depiction of the proposal is attached as Appendix "A" to this Report. The Applicant proposes to mitigate the loss of tidal wetlands which would be filled by transplanting existing tidal wetlands vegetation and planting new tidal wetlands vegetation to enhance biological productivity of an area of the site which currently does not support wetlands vegetation.

The Engineering Basis for the Proposed Project and Alternatives

19. The Applicant's engineer produced a report on "Flooding and Erosion Control Case Studies/ Structural Alternatives," originally submitted in May 1994, revised in July 1994 and resubmitted to the Department Staff at the August 9, 1994 hearing session.
20. The Applicant's site is within an area of Little Neck Bay which is normally a tranquil area with low wave energy. The site is not within a Department designated coastal hazard area. During storm events, the site can experience periods of higher wave energy. Storms with northerly wind components can cause especially severe storm surge and wave conditions at the site.
21. Areas of high wave energy, e.g. -- ocean front properties, typically have hardened structures and steel sheet piling bulkheads as shore stabilization structures. In areas of low energy, much less elaborate and massive structures suffice to stabilize the shore. A gravity seawall is a common shore stabilization structure in areas of low wave energy. In the instant case, the gravity seawall fronting the Applicant's property functioned well in stabilizing the shoreline for the past approximately 70 to 80 years. In the areas where the wall has not collapsed, it is still serving that purpose.
22. The Applicant seeks to not only stabilize his shoreline, but to eliminate the onslaught of waves against his house foundation during major storm events and to alleviate the flooding associated with such storms.
23. The Applicant's engineer has designed the proposed storm control/erosion control structure on the basis of various assumptions which he used as inputs to the Automated Coastal Engineering System ("ACES") computer program which was developed by the U.S. Army Corps of Engineers. Several alternative structures and the case studies upon which the Applicant's preferred alternative was based were analyzed using this computer program.
24. The Department Staff has criticized the inputs utilized by the Applicant's engineer as being "exaggeratedly conservative" and "decidedly uncharacteristic of the area under study." The Department Staff supports the use of a conservative approach to the engineering design of coastal structures, but the input data values must be realistic and on the order of values which could be reasonably expected to occur.
25. The Applicant's engineer listed the following typical characteristics of the site for the purposes of his report: tide range, wind fetch, wind fetch direction, average water depth and maximum sustained wind speed. He later corrected the term "typical characteristics" to actually mean exceptional conditions, as would be experienced during a severe storm event.
26. Tide range in the May report was listed as 7.3 feet; in the revised July report as 8.3 feet. The Department Staff noted the tide range, i.e. -- difference in elevation between annual mean low and mean high tides, at the nearest official Tide Gauge at Willets Point at the mouth of Little Neck Bay, approximately 1.87 nautical miles from the Applicant's site, is reported by the National Oceanic and Atmospheric Administration ("NOAA") to be 7.1 feet.
27. The maximum wind fetch at the project site is listed in the May report as 5 miles and in the revised July report as 7 miles. The Department Staff noted there is virtually no geographical point which would provide an unimpeded wind fetch of 7 miles to the project site. On the direct southerly course, i.e. -- wind from due north towards the Applicant's point of land, of the 7 mile fetch proposed by the Applicant's engineer, no consideration was given to the geographical impediments to wind fetch caused by the land masses of Kings Point and Willets Point and by Stepping Stone shoal in the western entrance to Long Island Sound. Additionally, the Staff noted that a very small variation in the wind direction, i.e. -- direction of fetch, in this constricted area of western Long Island Sound and Little Neck Bay would significantly reduce the length of fetch. The Department Staff recommends the use of the "Restricted Fetch" subroutine for the ACES software in this instance. This subroutine was not used by the Applicant's engineer.
28. While the Department Staff believes even the 5 mile fetch is exaggerated, it noted that in the computer runs where the Applicant's engineer used the 7 mile fetch, the additional 2 miles of fetch purportedly increases the average fetch depth by five feet. These inputs cause significantly greater wave height and wave period outputs from the ACES model than result from the 5 mile fetch distance.
29. The average water depth is listed in the May report as 10 feet and in the revised July report as 23 feet. The Department Staff noted the 100 year base flood elevation for the project location, as determined by the Federal Emergency Management Agency ("FEMA") for the National Flood Insurance Program, is +14' NGVD, or for purposes of this Hearing Report, equivalent to msl. This latter elevation was based upon the hurricane of September 1938, which is the storm of record for the western end of Long Island Sound.
30. The Applicant's engineer, in his case studies and evaluation of alternatives, added the elevation of the highest observed tide and the entire wave height, i.e. -- the height of the wave from trough to crest, to calculate the total height of water at the site associated with various storm events including the hurricane of September 1938 and the December 1992 Nor'easter. However, when wave height is superimposed on tide elevation, accepted oceanographic practice is to even out the difference in elevations between the trough of a wave and its crest. In order to accomplish this, it is appropriate to add only one-half the wave height to the tidal elevation to calculate the total height of the water at the site.
31. The maximum sustained wind speed is listed in the May report as 70 miles per hour ("mph") and in the revised July report as 60 mph. In Case Study I in the reports, meant to simulate the conditions in the September 1938 hurricane, the Applicant's engineer used a wind speed of 70 mph sustained for three hours. The Department Staff noted that while a maximum wind gust of 70 mph was registered in Central Park during the 1938 hurricane, a sustained wind speed of 70 mph has never been recorded at Willets Point or at LaGuardia Airport, the nearest location with a permanent long-term anemometer. In Case Study II, meant to simulate the conditions in the December 1992 Nor'easter, he used a wind speed of 60 mph sustained for five hours. With respect to this input, the Staff noted that during the December 1992 Nor'easter, the maximum 5 hour sustained wind speed at LaGuardia Airport was 40 mph.
32. In the revised July report, the Applicant's engineer utilized inputs for exceptional conditions at the site which were not only conservative assumptions, but which in most instances were worst case or more severe than the inputs in the May report. The Staff's evaluation of the Applicant's engineer's reports is that the result of using a variety of inflated and unrealistic values as inputs to the ACES program generates output data regarding the waves and conditions at the project site which is not believable and unrelated to the actual conditions which can be anticipated at the site. The Staff contends the design of flood and storm control structures based on these exaggerated data has resulted in the over-engineering of all the studied alternatives.
33. The physical description of the Applicant's selected alternative has been sufficiently discussed above. The proposed project, located approximately 30 feet seaward of the existing seawall and at a height of +12.75' msl, would allow storm waves to still overtop the structure, but then dissipate in an approximately 50 foot run-up towards the Applicant's house. This design would leave a 10 foot buffer distance between the wave run-up area and the foundation of the house. The design of the proposed project would not, however, alleviate flooding of the Applicant's basement by a condition referred to at the hearing as "flanking". Under circumstances of a storm surge, water could still flow around the northern and southern edges of the Applicant's proposed storm control/erosion control structure, i.e. -- from the Gargano and Santora properties, and flood the basement of the Applicant's home.
34. The Applicant's engineer also considered the construction of a stone revetment, the apex or crest of which would be located over the existing seawall. The required height of the revetment would be between approximately +18' msl and +24' msl, thus approaching or being above the first floor (not basement) elevation of the Applicant's house at +20.9' msl. This alternative was rejected because it would require construction on adjacent property, and the base of the revetment would encompass the entire area of the existing intertidal marsh on the site, as well as approach to within a few feet of the residential structure.
35. A third studied and rejected alternative was an offshore rubble mound breakwater, the crest of which would be located some 50 feet seaward of the existing seawall. This alternative would also require construction on adjacent property. The required height would be approximately +13' msl, and the base would cover a large area of the shoal mudflats and a portion of the intertidal marsh on the site. The breakwater would also be a hazard to navigation.
36. The fourth alternative, considered in the revised July report, was to construct a new higher seawall within eighteen inches of the existing seawall. Based upon the computer calculations described above, in order to provide the same level of protection from potential wave damage to the Applicant's residence as the preferred alternative, the height of the new seawall would have to be at approximately elevation +22' msl or above the first floor elevation of the house. A steel sheet piling bulkhead constructed to this height would require backfill for support and/or tiebacks to the foundation of the Applicant's home. The Applicant's yard area, let alone his view of the Bay, would be obliterated by such a seawall. Such a seawall would be an anomaly. No one at the hearing could recall ever seeing such a shore protection structure anywhere along the coastal shore of New York State.

The Tidal Wetland and Proposed Mitigation

37. The area of the site in northeastern Queens County and the southern portion of Little Neck Bay are shown on the official Department Tidal Wetlands Map No. 604-512. On the map, a portion of the area in which the project would be located is classified as "IM" or intertidal marsh, with the remainder of the project area being classified as "LZ" or littoral zone.
38. The tidal wetlands conditions on the project site have changed somewhat since the aerial photographs for the wetlands maps were taken in late summer 1974. Both the Applicant's and Department Staff's witnesses agreed that the area immediately seaward of the existing seawall, and remnants thereof, is an intertidal marsh. This is the vegetated tidal wetland zone lying generally between the average high and low tidal elevations. There is a total of approximately 8,700 to 9,600 square feet of wetlands vegetation existing within the property lines of the site. On the Applicant's site the intertidal marsh is the most productive of the tidal wetlands zones and appears to be accreting or increasing in size.
39. The dominant vegetative species in the intertidal marsh area on the site is a vigorous stand of Spartina alterniflora, low marsh cordgrass. The area also provides habitat for numerous fiddler crabs, ribbed mussels and killifish. Various sea birds, such as snowy egrets, also frequent the area. The Staff noted that the rocks at the base of the existing seawall provides a healthy rocky intertidal community with evidence of Fucus spp., rockweed, along with barnacles and many forms of epiphytic algae. Rocky substrate providing excellent benthic habitat also occurs at the seaward edge of the intertidal marsh.
40. The Applicant proposes to transplant the existing Spartina alterniflora from an area of approximately 4,600 to 5,500 square feet of intertidal marsh to a new location seaward of the proposed steel sheet piling bulkhead prior to filling the intertidal marsh area. The filling activities proposed for the project would then eliminate this area of intertidal marsh. Approximately 4,100 square feet of existing intertidal marsh would remain undisturbed on the site.
41. In front of the Santora property, between the intertidal marsh and the seawall, generally within ten feet of the seawall is a small area of high marsh, which is the normal uppermost tidal wetland zone. This area is vegetated by patches of Spartina patens, salt meadow grass and Limonium carolinianum, seaside lavender. If the Applicant's westerly portion of seawall had not collapsed into the Bay, the high marsh area would probably be present along the Applicant's westerly boundary, as well.
42. Seaward of the intertidal marsh, in an area marked as littoral zone on the Tidal Wetlands Map, the site exhibits the characteristics of an area of coastal shoals, bars and flats, or as referred to at the hearing, "shoal mudflats". This tidal wetlands zone is covered by water at high tide and at low tide is exposed or covered by water to a maximum depth of approximately one foot.
43. This type of tidal wetlands area is typically not vegetated with low marsh cordgrass. The Bay bottom in this area consists of approximately six inches of very fine black silt layered over pale gray sand. The shoal mudflats area on the site does not exhibit high biological productivity in relation to the adjacent intertidal marsh area. However, these shoal mudflats do have the potential to become more biologically productive in the future.
44. As mitigation for the filling of intertidal marsh on the Applicant's property, an area of shoal mudflats as much as 90 feet seaward of the proposed steel sheet piling bulkhead would be prepared for the introduction of Spartina alterniflora, to be both the healthy and vigorous specimens transplanted from the existing intertidal marsh on the site and also new plants from nursery stock derived from the Applicant's consultant's cultivated beds. The area proposed for this transplanting/ planting operation is currently too deep for Spartina alterniflora to survive. In order to locate the Spartina alterniflora at an elevation where it could be viable, i.e. -- at an elevation between mean high water and mean low water, additional fill would have to be placed in the shoal mudflats area. This fill would be stabilized by the installation of approximately 400 linear feet of 3' x 3' stone filled gabion baskets lying on bed of filter fabric. Portions of this gabion/fill/transplant procedure would occur on lands outside the boundaries of the Applicant's property at both the northeast and southwest limits of the proposed project. A cross-sectional depiction of the Applicant's mitigation plan is attached as Appendix "B" to this Report.
45. The Applicant's mitigation proposal is to establish a new area of intertidal marsh seaward of the new bulkhead and remaining undisturbed intertidal marsh. If successful, the transplanted/new wetlands vegetation in this area would enhance the biological productivity of the area fronting the bulkhead, i.e. -- replacing relatively low productivity shoal mudflats with eventual high productivity intertidal marsh. The initial plantings could be 85% to 90% successful. The Applicant's contractor would return in successive growing seasons to replace those specimens which did not survive. It could take up to two years for the new and transplanted Spartina alterniflora to become well established and potentially much longer before the marsh could fully perform the functions of a viable intertidal marsh.
46. The Applicant's wetlands consultant/contractor has performed similar tidal wetlands relocation/reestablishment projects at other locations in the marine district of New York State and all such projects have been successful. In the experience of the Department Staff, particularly in the Marine District in Region 2, up to fifty percent of manmade tidal wetlands projects may fail.
47. Approximately 200 feet seaward of the shoal mudflats area is the area of true littoral zone. The littoral zone includes all lands under tidal waters not more than six feet deep at mean low water. The proposed project would not directly impact the functional littoral zone in the southern portion of Little Neck Bay.

Impacts on the Tidal Wetlands

47. The filling operation would totally eliminate approximately 4,600 to 5,500 square feet of flourishing intertidal marsh. The resulting filled area would become upland and would effectively double the size of the Applicant's lawn and yard area between his home and the Bay. The Applicant did not express any desire or intention to further develop this area once the flood control/erosion control project is completed.
48. The work necessary to prepare the shoal mudflats area for transplanting/planting Spartina alterniflora would fill and eliminate some 6,500 to 7,000 square feet of shoal mudflats.
49. In addition to the approximately 4,100 square feet of intertidal marsh which would remain undisturbed, approximately 6,500 to 7,000 square feet of intertidal wetland would be relocated/created by the proposed project. Upon completion, then, the total intertidal marsh on the site would encompass approximately 10,600 to 11,100 square feet, for a net increase in intertidal marsh of 1,500 to 1,900 square feet. For an undetermined period of time, however, the intertidal marsh would not be well enough established to provide the range of tidal wetlands values and benefits normally expected of an intertidal marsh.
50. Seaward of the existing seawall, as mentioned above, the site contains a variety of habitats which collectively contribute to the tidal wetlands benefits which are present in the area. The intertidal marsh is extremely valuable in terms of marine food production. It is the most important area on the site in terms of providing wildlife habitat. It provides an area which can contain storm waters in minor storm events, but the primary flood protection in the vicinity of the site is provided by the seawall around the Parsons Point shoreline. Likewise, it provides an area where waterborne silt and organic material can be absorbed and where pollutants can be removed from the water column, thereby contributing to cleansing the ecosystems of the area. By providing habitats for a diversity of marine species, the intertidal marsh has potential for recreational values. There are no known educational or research activities occurring within the intertidal marsh on the site. The intertidal marsh is valuable for its contribution to open space and aesthetic appreciation in the southern portion of Little Neck Bay.
51. The area in the vicinity of the Applicant's collapsed section of seawall which has the potential for supporting an area of high marsh is so small as to be virtually negligible in its present contribution to tidal wetlands values. Its location at the base of the seawall would make it relatively less valuable as high marsh as compared to other high marsh areas. It is an area, however, which could add to the diversity of the site's environment, and therefore, could be important for marine food production and wildlife habitat.
52. The shoal mudflats on the site provide many of the same values as the intertidal marsh, but generally to a lesser extent. Compared to the highly productive intertidal marsh, the shoal mudflats have a relatively low biological productivity, and therefore, do not have a high marine food production value. The habitat in the shoal mudflats area is much less diverse than in the intertidal marsh. Most of the wildlife in the shoal mudflats is transient, migrating with the tides. However, as the intertidal marsh expands into the shoal mudflats, areas of the shoal mudflats are becoming more productive and more diverse for wildlife habitat. The shoal mudflats have a minor contribution to the tidal wetlands values of flood and storm control, absorption of silt and organic material and cleansing ecosystems. They do not provide any known current values for education and research, but do contribute to open space and aesthetic appreciation. They have a slight potential for providing recreational values.
53. The most adverse impacts of the project would be to totally eliminate all those present and potential tidal wetlands values in the section of intertidal marsh which will be filled. The values of the filled area of shoal mudflats would be lost, but would be replaced initially with some of the values of the intertidal marsh. Some of those intertidal marsh values and benefits would be regained upon the successful transplanting and new planting of Spartina alterniflora into the area of current shoal mudflats, although the length of time necessary for the new intertidal marsh to attain its full potential values cannot be determined at present. Aesthetically, the Applicant's point of land will protrude some 30 feet farther into Little Neck Bay, and around the perimeter of the transplanted/newly planted intertidal marsh area, the gabion retainment structures will be visible at low tide.
54. Construction techniques used on the proposed project would be of particular concern, especially as related to minimizing sedimentation within the wetlands areas. Any construction done in the water would inevitably create significant sedimentation problems, which if unchecked could smother the tidal wetlands on and around the site. Therefore, construction activities would have to be strictly controlled and possibly monitored to assure sedimentation is minimized. Controls could relate to the requirement for the Applicant to post bonds to guarantee the work was done properly, the employment of silt screens on the site, the time of the day during which work could be done and the allowable tide levels for construction work, among other potential restrictions.
55. Some of the construction of the new wetlands area seaward of the proposed steel sheet piling bulkhead would occur beyond the boundaries of the Applicant's property lines. It is unknown if permission from the neighbors has been or even can be secured regarding the proposed construction. Additionally, access to the construction area would necessitate traversing the narrow area between the Applicant's house and the Santora house to the south. The movement of heavy equipment through this narrow access corridor would adversely impact the yard areas of both families and would require permission from the Santora family. It is unknown if the Santora's would grant permission for such access.
56. The Staff has already received inquiries from neighbors desiring to pursue similar projects to the Applicant's in the event the Applicant receives the requested permits. If the Applicant's project is approved, the Staff anticipates great pressure from other landowners having riparian (littoral) rights or able to obtain riparian (littoral) rights to approve similar types of projects in the Marine District of New York State. Any approval of similar projects could result in cumulative impacts from the filling of multiple acres of tidal wetlands in Little Neck Bay.

CONCLUSIONS

1. Among his neighbors, the Applicant is in the unique position of actually owning the lands underwater inside the boundaries of 400 foot extensions of his property lines into Little Neck Bay. None of the Applicant's neighbors in the Parsons Point area of Douglaston, Queens have the littoral rights of ownership of the seabed fronting their respective properties.
2. The southern portion of Little Neck Bay is a normally tranquil area with low wave energy, accounting for the viability of a healthy intertidal marsh just seaward of the Applicant's existing seawall. For approximately three-quarters of a century, the existing gravity stone and masonry seawall has sufficed to protect and stabilize the shorefront of the Applicant's property. The same seawall, extending both east and south along the neighboring properties, has been effective providing similar protection and shore stabilization for those properties.
3. During major storm events, as in the instance of Hurricane Hugo in September 1989 and the December 1992 Nor'easter, the nature of the southern end of Little Neck Bay can change dramatically. The character of the Bay changes from being low in wave energy to becoming an area of relatively higher wave energy. The storm surge and wave height associated with these two storms, among others, overtopped the seawall surrounding Parsons Point and caused flooding damage to many of the shorefront properties in the area.
4. In the Applicant's instance, during the December 1992 Nor'easter, waves were breaking against the basement level of his house, and flooding within the basement reached approximately two feet above the basement floor, causing serious associated damage. The storm waters also caused an approximately 60 foot section of the seawall to collapse into the Bay.
5. The Applicant's proposed design for a flood control/ erosion control structure to protect his property from flooding and erosion caused by excessive wind and wave action is based on a series of assumptions. The Applicant's engineer utilized, in most instances, the worst possible case assumptions to input the ACES computer program. In several instances, these assumptions bear little relation to the actual conditions which could be reasonably expected to occur at the site even under extremely severe storm conditions. The assumptions utilized for tide range, wind fetch, water depth, and particularly wind speed and duration are all inflated and unrealistic values.
6. The use of one conservative, i.e. -- worst case, assumption in the computer program would likely lead to a conservative output value, if all other input values were realistic. However, the use of a worst case assumption for every input value to the computer program multiplies the conservatism in the computation and skews the output values to the point where their reliability as design indicators is seriously compromised. In the instant case, the resulting outputs from the U.S. Army Corps of Engineers developed program are a series of assumed wave conditions at the site which are simply not believable and are so conservative that they could virtually never occur in nature.
7. As a result of the exaggerated design conditions at the site, the alternatives analyzed by the Applicant's engineer are overdesigned to the point where they might be appropriate for flood and erosion control in high wave energy areas such as ocean front property. They are certainly more massive than necessary to protect the Applicant's home from damage in even severe storm events. The fill/bulkhead design preferred by the Applicant, the stone revetment and the offshore rubble mound breakwater all would adversely impact the tidal wetlands on the site. The proposed design of a steel sheet piling bulkhead constructed within 18 inches of the existing seawall could only be considered an anomaly. Nothing even remotely like it exists in the Marine District of New York State.
8. If the Applicant's preferred alternative were to be constructed, it would likely alleviate the probability of waves breaking against the basement walls. However, it would not protect the Applicant's home from the potential of extremely high flood waters in the Bay which exceeded the height of the steel sheet piling bulkhead or from flood waters which could encroach upon the Applicant's property from the Gargano property to the east or the Santora property to the south, in an action referred to at the hearing as "flanking". The Applicant, in fact, has acknowledged that, even with the project in place, water could reach his property from the adjacent properties.
9. The fill necessary to construct the flood control/ erosion control structure alternative preferred by the Applicant would destroy an area of thriving intertidal marsh which is vegetated by a healthy growth of Spartina alterniflora. The tidal wetlands vegetation located in the area proposed to be filled would be transplanted into an area of mapped littoral zone which is functioning as shoal mudflats. Additional nursery stock Spartina alterniflora would be planted in the shoal mudflats area to increase the density of vegetation and create a new seaward extension of the intertidal marsh on the site. The success of the transplanted/newly planted area of intertidal marsh could not be assured for up to two years. Even then, it could take an indeterminate length of additional time for the new area of intertidal to become well enough established to fully function with all the values and benefits of the existing intertidal marsh on the site.
10. The shoal mudflats area seaward of the Applicant's proposed new bulkhead would itself have to be filled and raised in elevation in order to provide a environment in which the Spartina alterniflora would be viable. While there would be a modest net increase in the total square footage of intertidal marsh, the net loss of tidal wetlands on the site, through filling the shoal mudflats, is substantial. The relative value of the shoal mudflats which would be filled is less than the value of the intertidal marsh which would replace it. However, the tidal wetlands on the site have to be considered not as a group of discrete ecological zones, but rather as a cohesive integrated community which provides a variety of functions to a diverse population of plants and animals, including humans, during the twice-daily tidal cycles.
11. In the instant case, it is not clear that the modifications proposed by the Applicant, even with an areal increase in the most productive intertidal marsh, will enhance the overall tidal wetlands values on the site. Certainly, for the period when the transplanted/newly planted intertidal marsh is becoming established, the site's tidal wetlands values will be significantly reduced. The values of the marsh for marine food production and wildlife habitat will not be optimized until the introduced vegetation is fully established. The overall capacity of the wetlands to cleanse ecosystems, absorb silt and organic material and provide flood, hurricane and storm control will be permanently diminished. The values of recreation, education and research will probably be relatively unchanged. The value of open space and aesthetic appreciation will be permanently adversely impacted if only for the visible protrusion of the proposed bulkhead/fill project farther into the Bay than the existing seawall and surrounding shoreline.
12. An approval of the Applicant's proposal and issuance of the requested permits could potentially result in an increased number of similar applications from the shorefront property owners in the southern portion of Little Neck Bay, and perhaps elsewhere on the north shore of Long Island. Any approval of the Applicant's request could set the precedent for approval of other similar requests, although it is unknown how many other persons own the littoral rights to the seabed fronting their respective properties. It is conceivable that the approval of multiple projects along the shore of Little Neck Bay could result in the filling of multiple acres of tidal wetlands in the Bay. The potential cumulative impact of additional projects could severely diminish the quality, value and benefits derived from these tidal wetlands.

DISCUSSION

The Tidal Wetlands Land Use Regulations in 6 NYCRR Part 661 provide that dredging and placement of fill within any category of tidal wetland is presumptively incompatible with the preservation, protection or enhancement of the present and potential values of the tidal wetland [661.5(a)(3) and (b)(27) and (30)]. Likewise, construction of bulkheads within tidal wetlands designated as intertidal marsh is presumptively incompatible [661.5(b)(29)].

The standards for tidal wetlands permit issuance [661.9(b)(1)] require an applicant to demonstrate, among other provisions, that the proposed project: (i) is in conformance with the policy of the Tidal Wetlands Act - ECL Article 25, to preserve and protect tidal wetlands, (iii) is reasonable and necessary, in view of reasonable alternatives, and (v) complies with the use guidelines in 661.5. If the proposed activity is a presumptively incompatible use, the applicant has the burden of overcoming the presumption and demonstrating that the activities will be compatible with the area involved and with the preservation, protection and enhancement of the present and potential values of tidal wetlands.

In determining the compatibility of an action with tidal wetlands values, the regulations in 661.9(e) provide an opportunity for an applicant to enhance existing wetlands values or to create and sustain new wetlands values in the vicinity of the site. When the Department Staff reviews any project which involves the elimination of existing tidal wetlands and creation of new wetlands as mitigation, the Staff typically requires at least a 2:1 ratio of newly created wetlands to destroyed wetlands. The rational for a 2:1 ratio is the historical failure rate of newly created wetlands, due to poor planning, design and workmanship on the part of marine contractors and the establishment of improper elevations with respect to tidal ebb and flow which do not assure the viability of tidal wetlands vegetation.

It should be further noted that the concept of a 2:1 replacement for filled tidal wetlands relates to creation of new mitigating wetlands from areas which presently do not exhibit any tidal wetlands values. In the instant case, the Applicant proposes to enhance the tidal wetlands values in an area which already has value as a tidal wetlands, albeit at a lower level than the intertidal marsh proposed for relocation.

Here, also, the Applicant is not proposing a 2:1 replacement for the filled area of intertidal marsh. While the Applicant's contractor noted his firm's success in establishing tidal wetlands mitigation areas, the Department Staff have a broader view and have observed that up to fifty percent of manmade tidal wetlands may fail.

Despite the mitigation proposed, there is no assurance that there will be a net increase of tidal wetlands values on the site. If the Applicant's mitigation proposal were to be one hundred percent successful, the tidal wetlands values established over an unknown period of time could equal or even exceed the aggregate values of the tidal wetlands to be filled. However, at the success rate which has been experienced by the Staff with manmade tidal wetlands in Region 2, the mitigation proposed by the Applicant would result in an overall reduction of tidal wetlands values on the site.

The intertidal marsh to be created by the proposal is slightly larger than the area of intertidal marsh proposed to be filled, but when considered as a tidal wetlands community, the values of the tidal wetlands would be diminished by the loss of the shoal mudflats proposed to be filled for creation of the intertidal marsh. Additionally, while the eventual enhancement of the values of the mitigating intertidal marsh are potentially greater than the values of the shoal mudflats area which they would replace, it may take a long time for the tidal wetlands to realize their potential values. During that undetermined time, the values provided by the mitigation intertidal marsh will be less than the present values of the intertidal marsh to be filled.

The potential loss or enhancement of tidal wetlands values on the site must be further considered with respect to the design parameters utilized by the Applicant's engineer. A flood control/erosion control structure designed with reasonably expected storm data would be of a smaller size and would have relatively less adverse impact on the tidal wetlands on the site.

In sum, and certainly for the immediate future, the mitigation proposed does not outweigh the loss of the very significant existing values provided by that portion of the thriving, healthy intertidal marsh proposed to be filled, together with the tidal wetlands values of the shoal mudflats on the site which are to be filled.

As additional standards for permit issuance, both the Use and Protection of Waters regulations in 6 NYCRR 608.6(a) and, as noted above, the Tidal Wetlands Land Use Regulations in 6 NYCRR 661.9(b)(iii) require that a project be determined to be reasonable and necessary before a protection of waters permit or a tidal wetlands permit, respectively, can be issued by the Department. In this instance, it is apparent that some sort of flood control/ erosion control structure might be reasonable and necessary to afford protection to the Applicant's home from flooding and erosion caused by excessive wind and wave action. However, the overdesigned proposal submitted by the Applicant for consideration in this proceeding is not reasonable and necessary.

Additionally, the permit issuance standards in the Use and Protection of Waters regulations in 6 NYCRR 608.6(c), require a demonstration that the proposal will not cause unreasonable, uncontrolled or unnecessary damage to the natural resources of the State. Here, the Applicant has failed to demonstrate that the proposed project will not cause unreasonable or unnecessary damage to the natural resources of the State, since construction of the proposed project will cause a net loss of tidal wetlands and marine aquatic environment.

Environmental Conservation Law Article 3, Department of Environmental Conservation: General Functions, Powers, Duties and Jurisdiction, requires the department to take into account the cumulative impact on the natural resources of the state which might be induced by the issuance of any permits. In this case, approval of a flood control/storm control structure of the size and nature proposed by the Applicant could create a precedent which could lead to a potential cumulative depletion of the tidal wetlands and their associated values within, at the least, the confines of Little Neck Bay. It is unknown, however, how many other landowners have or could obtain the riparian (littoral) rights which might lead them to apply for similar projects. As such, potential cumulative impact, in and of itself, is not a basis for denial of the instant project.

As noted in the Proceedings section of this Report, the Applicant has also applied for a Water Quality Certification, as a consequence of his application to construct a project which may result in a discharge into navigable waters. The standards for issuance of a Water Quality Certification, pursuant to 401 of the Federal Water Pollution Control Act (33 USC 1341), and further, 6 NYCRR 608.7(a)(6), require an applicant to demonstrate compliance with the State statutes, regulations and criteria otherwise applicable to the proposed activities. The Applicant's proposal in this proceeding does not comply with the above noted standards for issuance of either a tidal wetlands permit or a protection of waters permit. Therefore, a Water Quality Certification for the proposed project may not be issued.

In the instant case, then, the requested permits may not be issued. I do note, however, that the standards for the issuance of a tidal wetlands permit in 661.9(b)(1)(i) require a balancing of the impacts of a regulated activity on tidal wetlands values with the social and economic benefits which may be derived from the proposed activity. When the Applicant's home was constructed some 25 years ago, it complied with all applicable regulations. Today, it is unlikely that the residence would be permitted in its present location. Nevertheless, the Applicant has presented a legitimate concern regarding the safety and protection of his property.

The record of this proceeding shows that the criteria utilized in the design of the Applicant's current proposed project are exaggerated and unrealistic. Thus, the conditions predicted from the design storm event could not be reasonably expected to occur at the site. The result is a project which is overdesigned and which, because of the overdesign, would cause unnecessary and unreasonable adverse impacts to the tidal wetlands/natural resources of the State at the site.

Equally apparent from the record before me is the fact that more realistic design criteria would result in a scaled back project which could provide a reasonable level of protection for the Applicant's home and property. The actual impacts of the December 1992 Nor'easter on the Applicant's home, as documented in the Applicant's photographs, bear this out. Whether such a project could be a new seawall constructed to a higher elevation, as suggested by the Department Staff, or whether it could be a bulkhead and fill project with a much less significant incursion into the intertidal marsh on the site, or some other alternative, is not clear. However, a reevaluation of the Applicant's needs in terms of realistic storm data is warranted, and reapplication for a smaller project should be considered.

RECOMMENDATIONS

In view of the above sections of this Hearing Report, I recommend the Applicant's request for a Tidal Wetlands Permit, a Protection of Waters Permit and a Water Quality Certification be denied. Such a denial should be without prejudice to the resubmission of the appropriate applications for a project of reduced size and scope which could still afford a reasonable level of flood and erosion protection for the Applicant's property and residence while significantly reducing the adverse impacts on the tidal wetlands in Little Neck Bay.

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