New York State Office of General Services - Decision, January 26, 1995

Decision, January 26, 1995

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

In the Matter of

the Application of the

NEW YORK STATE OFFICE OF GENERAL SERVICES

for a Section 401 - Clean Water Act Water Quality Certification (33 USC 1341)
pursuant to 6 NYCRR 608.7

DEC Project No. 2-6500-00012/00001-9

DECISION OF THE COMMISSIONER

January 26, 1995

Decision of the Commissioner

This Decision is in relation to the application of the New York State Office of General Services ( the "Applicant") for a water quality certification pursuant to 33 U.S.C. 1341 and 6 NYCRR 608.7 for a project to mine 135 million cubic yards of sand over a ten-year period from two underwater sites in the New York Harbor Lower Bay. The certification is in furtherance of a permit to dredge which is required of the U.S. Army Corps of Engineers (the "Corps") pursuant to 33 U.S.C. 1344. The project is also being reviewed under the State Environmental Quality Review Act ("SEQRA"), Environmental Conservation Law ("ECL") Article 8.

Legal and Policy Issues

The Hearing Report addresses three legal and policy issues as preliminary matters. They involve (1) the Department's authority to require another state agency to fund an environmental monitor, particularly in the case of a dredging project; (2) the legality of a condition which requires the Applicant to halt mining activities when dissolved oxygen levels fall below 3.5 milligrams per liter ("mg/l") rather than the water quality standard of 5.0 mg/l; and (3) the appropriateness of requiring a reevaluation of the project five years after the permit is issued.

The courts have affirmed the Department's authority to require that an environmental monitor be employed at an applicant's expense [C.I.D. Landfill, Inc. v. Department of Environmental Conservation, 167 A.D.2d 827, (4th Dept., 1990)]. The cited case affirms the Department's right to require environmental monitors where such a mechanism is needed to mitigate the potential risks of a project. Even though the Department has not previously required environmental monitors for a dredging project, the risks posed by each project must be evaluated on a case-by-case basis. Where justification exists, the condition can be imposed regardless of the nature of the project. I also find no distinguishing factors that would exempt a state agency applicant from such a requirement.

On the second issue, I also concur with the conclusion in the Report. The condition does not legalize any violation of the state water quality standards nor does it preclude any action on the Department's part in the event that the project is found to cause or contribute to such a violation. In effect, the condition only specifies action that the Applicant will be required to take in case a particularly severe water quality problem is shown to exist in the project area. Unlike situations where the Applicant itself is the cause of or contributing factor to the violation, the predicate for the Applicant's action under the permit condition is without regard to causation. As such, the condition does not undermine nor duplicate responses that are available in the case of a violation caused by the Applicant's activities.

On the third issue, I also agree with the ALJ that this record does not demonstrate the need for a separate reevaluation of the project five years after the permit is issued. The monitoring requirements will provide the opportunity for an on-going review and the certification conditions can always be reopened if new information comes to light [see 6 NYCRR 621.14(a)(4)].

Potential for Shoreline Erosion

The sole evidentiary issue in this case concerns the potential for shoreline erosion impacts attributable to the proposed project. It is the Applicant's burden to demonstrate that the project will not cause any significant adverse impacts or that the impacts will be adequately mitigated.

The City of New York (the "City"), the sole intervenor and opponent of the project does not maintain that significant adverse impacts are likely, rather it only claims that there is inadequate information in the record to draw any reliable conclusions about the project impacts. Therefore, the Department's options are to grant the certification based on existing information or to require that additional information concerning project impacts be developed.

The controversy revolves around whether there is an adequate understanding of the project's impacts. The Applicant relies on two reports, the Kinsman study and the Bokuniewicz study, to demonstrate that its project would not cause adverse impacts to shore erosion. These reports, which admittedly were not performed with the proposed project specifically in mind, respectively address the wave energy that can be anticipated from a harbor mining project and the affect of such wave energy on shore erosion. Intervenor New York City does not dispute the scientific value of these studies but contests that their results can be used as predictive tools for this project.

In any decisionmaking which requires predicting project impacts in a complex ecosystem, certainty can rarely be achieved and lesser degrees of reliability usually must be tolerated. Achieving certainty or anything remotely close to it would frequently require expenditures that would be totally disproportionate to the potential environmental impacts which are sought to be avoided. On the other hand, making decisions without adequate study risks taking highly imprudent actions.

Therefore, whether adequate information exists for decisionmaking purposes will generally involve striking a balance which considers the reliability of existing information and the nature of the risks posed by the proposed action. In this case, however reliable the Department views the existing information, developments that post-date the close of the hearing record now make it clear that federal permitting authorities will require additional studies before making any final decision on the project.

In particular, this Fall, the Corps notified the Department that it is engaged in the development of a comprehensive modeling, monitoring, and geographic information system for the entire New York Bight. The Corps initiative taken in cooperation with the Harbor Estuary Program is likely to include modeling which will allow for evaluations of wave impacts, beach erosion and storm surges. It is doubtful that the Corps will approve any dredging project in the Bight of this nature and magnitude unless it is evaluated by this comprehensive modeling protocol.

Given this federal modeling initiative, a decision on water quality certification at this point would not affect the timetable for the ultimate decision on the project. The modeling protocol that the Corps adopts will be able to look at actions in the Bight more comprehensively and will take advantage of dramatic advances in computer modeling capabilities which have occurred in the fifteen years since the Kinsman study was done. Since additional relevant information will become available through this federal initiative, it is sensible to await its outcome before taking final action on the water quality certification request.

Accordingly, a final decision in this matter will be deferred pending the development of the Corps' modeling protocol and the evaluation of the proposed project thereunder. When the additional analyses are completed, the proceeding may be reconvened if there are still any disputes concerning the project's compliance with the standards set forth in 6 NYCRR 608.7. In light of this conclusion, I find it unnecessary to resolve the City's appeals of the ALJ's ruling to exclude exhibits 2F and 2G from the hearing record. I also note, that any of the conditions proposed in the draft permit may need to be reevaluated based on the additional analyses that will be performed.

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 26th day of January, 1995.

For the New York State Department
of Environmental Conservation

_____________/s/_____________
By: LANGDON MARSH, COMMISSIONER

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Office of Hearings
50 Wolf Road
Albany, New York 12233-1550
Tel. 518 457-3468

In the Matter of

the Application of the New York State Office of General Services for a Section 401 - Clean Water Act Water Quality Certification (33 USC 1341) pursuant to 6 NYCRR 608.7

DEC Project No. 2-6500-00012/00001-9

HEARING REPORT

- by -

____________/s/____________
Frank Montecalvo
Administrative Law Judge

TABLE OF CONTENTS

THE PROPOSED PROJECT and PERMIT SOUGHT

SUMMARY OF PROCEEDINGS

APPEAL OF ALJ TRIAL RULINGS

ISSUES OVERVIEW

LEGAL or POLICY ISSUES

EVIDENTIARY HEARING ISSUE - EROSION

FINDINGS OF FACT

FINDING 42, CONCLUSIONS OF LAW 3 and 4,

RECOMMENDATION

DISCUSSION

RECAPITULATION OF CONCLUSIONS OF LAW AND RECOMMENDATIONS

APPENDICES:

I - Proceedings

II - Map Showing Project Site

III - Selected Ray Diagrams

IV - Table of Kinsman's Results

The Proposed Project and Permit Sought

The New York State Office of General Services, Empire State Plaza, Albany, NY 12242 (the "Applicant") seeks a Section 401 - Clean Water Act Water Quality Certification (33 USC 1341) from the Department of Environmental Conservation (the "Department" or "DEC").

The Applicant proposes to mine 135 million cubic yards of sand over a ten year period from two underwater sites (one on the "East Bank" of Ambrose Channel, the other in the Chapel Hill North Channel) in the New York Harbor Lower Bay off Coney Island and the Rockaway peninsula, New York City, NY. Trail and clamshell dredging are the proposed mining methods. Mining would actually be conducted by others who would be licensed by the Applicant following a competitive bidding process. Applicant would receive royalties from licensees for the sand that is mined. The proposed project is intended to meet the regional need for sand and construction aggregates. The mining would create an approximately 2500 acre depression in the East Bank, with a depth of 60 feet below the water's surface.

Summary of Proceedings

A detailed statement of the proceedings appears in Appendix I.

Applicant initially applied for the Water Quality Certification during April, 1984. Following submission of other documents (including a Draft Environmental Impact Statement ("DEIS")) over a period of years, DEC Region 2 Staff ("Staff") issued a Notice of Complete Application in October, 1992. The matter was referred to the DEC Office of Hearings in January, 1993.

The public hearing commenced with a public statement session and Issues Conference on March 3, 1993 before ALJ Frank Montecalvo. DEC Staff was represented by Paul Gallay, Esq., Regional Attorney. The Applicant was represented by Robert J. Fleury, Esq. The City of New York (the "City"), which sought party status, appeared through Mary Kellogg Modig, Esq., Assistant Corporation Counsel. The City was granted party status on the agreement of Staff and Applicant. Another applicant for party status, Friends of Rockaway, Inc., did not appear and was denied party status. Following opening of the record, Applicant revised its proposal to withdraw consideration of three mining sites originally proposed to be sources of sand for State and Federal beach nourishment programs. No Draft Water Quality Certification was available from Staff at that time. Potential hearing issues were discussed to narrow them to the extent possible without the draft certification. On the agreement of the parties, the Issues Conference was adjourned to allow for information exchanges and development of a draft certification.

The Issues Conference resumed December 21, 1993. Steven Goverman, Esq., Assistant Regional Attorney, took over for Mr. Gallay and represented Staff for the balance of the proceedings. Issues rulings were made from the bench, only one of which was appealed, with the Commissioner ultimately upholding the ALJ's determination. The issues are summarized below under Issues Overview. Only one issue required an evidentiary hearing.

The evidentiary hearing commenced February 10, 1994, and continued March 7 and 8, April 5 and 7, and May 2 and 5, 1994, when it concluded. Dr. Henry J. Bokuniewicz, Mr. William Daley, and Dr. Frank Bohlen respectively testified as witnesses on behalf of the Applicant, Staff and the City.

The record closed on July 13, 1994 following receipt of closing briefs and replies.

Appeal of ALJ Trial Rulings

In its closing brief, the City appeals the ALJ's non-admission of a letter from the Army Corps of Engineers, and a letter from the Department of State, into evidence. These letters are contained within Exhibits 2F and 2G of the record as part of the public comment/response process, but were not admitted for factfinding. The City's appeal is referred to the Commissioner for disposition.

Issues Overview

At this point, four issues remain to be determined before the pending application may be processed further. Those issues are the subject of remainder of this Hearing Report. The first three are purely "Legal or Policy Issues" which involve: 1) the DEC's authority to require another state agency to fund an environmental monitor; 2) the legality of DEC's allowing mining to continue until dissolved oxygen levels fall below 3.5 mg/l when the applicable water quality standard is 5 mg/l; and 3) the appropriateness of formally subjecting the project to a de novo review after five years.

The fourth issue (the "Evidentiary Hearing Issue") is primarily factual, requiring a determination of whether or not Applicant may rely upon two particular studies, neither of which specifically addressed the Proposed Project, to conclude that the Proposed Project will not have a significant impact on erosion of the surrounding shorelines.

Legal or Policy Issues

Environmental Monitor: Should the Draft Water Quality Certification be revised to delete the requirement that Applicant provide for an Environmental Monitor?

Applicant raises this issue through a Motion to revise the Draft Water Quality Certification to delete all requirements that the Applicant pay funds to the Department for the purpose of establishing a full time environmental monitor position in the Department for the duration of the project. Specifically, Applicant seeks to delete special conditions 6a, 6b, 6c, 6d, 6e, and 6f as shown on hearing Exhibit 3F as modified by the parties' agreement at Hearing Transcript Volume 6, pages 1090, 1091).

The Applicant argues that the Department does not have statutory authority to require payment of funds in support of the establishment of a full time environmental monitor position in the Department with respect to the instant application, and that requiring same here is arbitrary and capricious. Applicant cites a report out of the legislature which reportedly states "the on-site environmental monitor program has grown beyond its original scope" and "[t]he Department must stop the use of on-site monitors and other unsupported permit conditions in the absence of explicit authority granted by the legislature." "Making Environmental Regulations Work for New York's Economy and Environment," Report on Hearings of the Senate Environmental Conservation Committee, the Legislative Commission on Toxic Substances and Hazardous Wastes, the Legislative Commission on Solid Waste Management and the Administrative Regulations Review Commission, March, 1994; pp. 17 and 22. Applicant argues that there is no express authority to require a monitor here. Applicant further notes that it and the Department are administrative agencies of the State, and as such, neither may expend funds without appropriation by the legislature; and that the Department can not constitutionally direct the legislature to appropriate funds for expenditure by the Applicant. Applicant argues that caselaw which has been cited as authority for monitor payments is not applicable to the instant situation. Applicant also argues that Staff has not followed its own Organization and Delegation Memorandum #92-10 (February 20, 1992) which pertains to environmental monitors, because none of the criteria for requiring a monitor are present and specifications for the monitor have not been set forth. Applicant alleges it has no record of non-compliance, the site is not particularly environmentally sensitive, and that any releases of dredged materials would be controlled. Applicant thus claims that the Department has made an unexplained change in position which indicates its arbitrariness. Applicant claims the monitor requirements are internally inconsistent and not in accordance with prior decisions. Applicant also notes that a requirement for Applicant to supply a vehicle would be inconsistent with state vehicle policy.

The City supports the requirement that a DEC monitor be employed full-time to oversee environmental compliance. The City argues that the monitor needs to be at the site to ensure that the private dredge operators are complying with permit restrictions on boundaries, depth configuration and turbidity controls and to see that sampling and monitoring are done correctly. The City notes DEC's responsibility for and expertise in environmental protection, and points out that Applicant does not have such a charge.

The Staff notes DEC's responsibilities regarding the certification and various court cases and statutory provisions to establish DEC's legal authority to impose the monitor requirement. Staff points out that the report cited by Applicant is not a statement of legislative intent because it contains only the commentary of the few legislators that authored it. Staff notes this project is unique due to its large scale, long duration, and proximity to recreational shoreline, and that its uniqueness requires rigorous monitoring of a number of parameters. Staff contends it is acting consistently with DEC policy which allows Staff to require an on-site environmental monitor if the proposed activity has the potential to cause environmental damage -- as this one does with regard to water quality and benthic habitat. Staff notes that it has supplied Applicant with the monitor specifications.

CONCLUSION OF LAW 1: DEC may impose the environmental monitor requirements on Applicant due to its responsibilities under both SEQRA and the Federal Water Pollution Control Act.

RECOMMENDATION 1: The Draft Water Quality Certification should not be revised to delete the requirement that Applicant provide for an Environmental Monitor.

Rationale:

DEC's Commissioner has been given broad responsibilities to protect the environment (ECL 3-0301(1)(b)), including water resources (ECL Article 17), and the agency is required to consider and minimize the adverse environmental impacts of any project subject to its approval (ECL 8-0101 et seq., "SEQRA").

Section 401 of the Federal Water Pollution Control Act ("FWPCA," 33 U.S.C. 1341) effectively requires the Applicant to obtain a certification from the Department that any discharge which may originate from Applicant's project will comply with, among other things, the effluent limitations and water quality-related effluent limitations of 6 NYCRR 754.1(a)(1), the water quality standards of 6 NYCRR Parts 701, 702 and 704; and the standards of performance for new sources set forth in 6 NYCRR 754.1(a)(2).

Because of its obligations under SEQRA, DEC has been found to have the authority to attach conditions to minimize adverse environmental impacts, as long as the conditions are reasonable. Town of Henrietta v. Department of Environmental Conservation of the State of New York, 76 A.D.2d 215, 430 N.Y.S.2d 440 (4th Dept., 1980).

A similar approach would apply to DEC's role in certifying Applicant's compliance with water quality requirements. In other words, because it is being asked to certify the quality of Applicant's future performance to the Federal government, DEC has the right to attach to its certification such conditions which will ensure that the performance standards will be met, as long as the conditions are reasonable.

Provisions for an environmental monitor are not patently unreasonable nor contrary to the Department's legal authority since the precedent for them is established. C.I.D. Landfill, Inc. v. New York State Department of Environmental Conservation, 561 N.Y.S.2d 936 (4th Dept. 1990).

Given Staff's asserted unfamiliarity with a project of this scale and potential for environmental damage, and the fact that actual dredging operations will be conducted by persons who are as yet unknown, Staff's requirement of a monitor appears to be a reasonable exercise of agency discretion. Notwithstanding Applicant's arguments, there appears to be no reason why Applicant should be treated differently from other applicants in this regard simply because it is a state agency. The fact that it is a state agency changes neither the project's potential environmental impacts nor the degree of supervision needed to adequately protect the environment. The Department is not directing the legislature to appropriate funds for expenditure by the Applicant. Rather, it is merely specifying the conditions under which it would be able to approve and certify Applicant's performance. Since the monitor requirement is patently practicable, it may be imposed as a mitigative measure under SEQRA to ensure that the identified adverse environmental effects of the project are minimized or avoided, and under FWPCA to ensure that the water quality requirements are met.

Dissolved Oxygen: Must the Water Quality Certification require mining to be halted in the event that dissolved oxygen falls below the 5.0 mg/l limitation for class SB saline surface waters contained in 6 NYCRR 703.3 for three or more days, as opposed to the 3.5 mg/l level specified in the current draft?

The City contends that Draft Water Quality Certification Special Condition 16, which requires that certain actions be taken when dissolved oxygen falls below 3.5 mg/l, is illegal because it contravenes the higher applicable water quality standard of 5.0 mg/l.

Staff argues that while the 3.5 mg/l standard incorporated in Special Condition No. 16 is lower than that contained in the regulation, it must be considered in the context of the natural condition of the waters surrounding the project (where dissolved oxygen levels naturally fall below 5.0 mg/l, especially in the summer) and Special Condition No. 4's ban on mining operations from May 15 through September 15 (designed to address the natural situation). The 3.5 mg/l limitation for the remainder of the year is based upon Staff's review of available scientific data, and is designed to assure that no negative impacts attributable to the project would affect benthic species. Staff argues that the numerical standards for dissolved oxygen were not intended to be absolute, and that they could be varied, especially if special conditions are imposed. Staff points to Special Condition Nos. 6, 8, 13, 15, 16 and 17 as addressing the concern.

Applicant contends that the certification does not have to require the halting of mining when the dissolved oxygen falls below the 5 mg/l level. Applicant points out that when deriving a water quality-based effluent limitation from a surface water standard or guidance value, the Department may take into account various factors, including but not limited to analytical detectability, treatability, natural background levels and the waste assimilative capacity of the receiving waters. Applicant argues that Staff's reasons for using the 3.5 mg/l level makes it a rational exercise of Departmental discretion.

CONCLUSION OF LAW 2: Special Condition 16 does not contravene state water quality regulations because it does not authorize Applicant to cause or contribute to a contravention of the 5 mg/l water quality standard for dissolved oxygen.

RECOMMENDATION 2: Special Condition 16 should not be changed.

Rationale:

Special Condition 16 (in Hearing Exhibit 3F) requires Applicant to establish water quality sampling stations. It states in pertinent part:

"If the level of dissolved oxygen falls below 3.5 mg/l at the mining site and is different by more than 0.5 mg/l from the nearest station on the East Bank or other control stations, daily measurements will be made. If the condition persists for three days, a grid of stations spaced approximately every kilometer across the mining area will be conducted to see if the low oxygen levels are associated with the site. This will be undertaken in one day's time. If low oxygen is associated with the site, mining will be halted until levels of dissolved oxygen exceed 3.5 mg/l."

The condition's plain language sets forth (1) when Applicant will be required to shut down operations, and (2) when Applicant will be required to heighten its monitoring activities. It contains no authorization for Applicant to cause or contribute to a contravention of the 5 mg/l water quality standard for dissolved oxygen. It also does not vary that standard.

Since violations of the dissolved oxygen standard occur now without mining, the mining-stoppage requirement is read as a prophylactic measure (along with the other Special Conditions) to ensure that the mining doesn't cause or contribute to a violation, and not a license for the mining to cause or contribute to a violation. Condition 16 surrenders no right of DEC to take action if Applicant's mining can be connected to an actual violation. If that ever happens, DEC would have to reconsider any decision to certify the activity, or consider varying the standard in accordance with applicable rules.

Regarding monitoring, Staff is essentially saying that given the non-mining conditions which violate the standard, receiving information from heightened monitoring would not be useful to Staff until the dissolved oxygen level falls to 3.5 mg/l. Since it is Staff's responsibility to review the information, Staff has the prerogative to control the information it receives by setting the number at 3.5 mg/l. Controlling the flow of information should not be construed to be an authorization for Applicant to violate the standard.

Being legal, the terms of Special Condition 16 are within the realm of Staff's discretion. Since they appear rational, there is no reason to disturb them.

Five-Year Review: Should the certification provide for formal reevaluation of the project five years after it is issued?

The City seeks to have the certification provide for a formal review after five years, contending it is warranted by the size of the project and its potential impacts to longshore transport, coastal erosion, water quality and the ecosystem of the New York Harbor.

Staff contends that a formal review after 5 years is both unnecessary and a burdensome commitment of its resources because the Draft Certificate already provides for extensive reporting by the Applicant and monitoring by the Department throughout the project's ten year term. Staff notes that if new information warrants action, it has the authority to suspend or revoke the certification at any time.

Applicant argues that repeated and multiple evaluations in addition to those required by the Certification would be unnecessarily duplicative, costly and wasteful.

RECOMMENDATION 3: The certification need not provide for formal reevaluation of the project five years after it is issued.

Rationale:

It does not appear that a formal review after 5 years would yield significantly more useful information than what will be produced by the monitoring to be performed. DEC can review the entire project at any time if new information reveals a problem. A formal review would require added effort without added benefit.

Evidentiary Hearing Issue

Erosion: With regard to shoreline erosion, do the studies which constitute part of the record enable a reasoned analysis of the potential impact of the project, and enable a reasonable conclusion that the impact of the project will not be significant or will not rise to a level such that it will require imposition of conditions on the certification or denial of the certification?

Applicant's Position:

Applicant relies on two studies to conclude that the proposed mining will not have a significant impact on shoreline erosion: (1) the "Kinsman Study," which compared the redistributions of wave energy under several mining scenarios for the East Bank; and (2) the "Bokuniewicz Study," which assumed a possible 10% increase in wave energy and concluded that such an increase would not cause any measurable increase in the frequency of erosion events. Applicant notes that Kinsman compared scenarios for mining isolated deep pits with one in which a large area was mined to a uniform depth, and concluded that while the deep pit scenarios would cause increased wave intensity along the Staten Island shore, the large uniform-depth scenario would cause a "marginal" 4.4% increase in wave energy on Coney Island while causing decreases at Staten Island of up to 20%. Applicant notes that it is not proposing isolated deep pits. Since the 4.4% increase in energy predicted by Kinsman is much less than the 10% increase that Dr. Bokuniewicz concluded would not cause any measurable increase in the frequency of erosion events, Applicant concludes that its project would not cause any measurable increase.

Applicant notes that the Draft Water Quality Certification and mining protocol contain conditions, added on the recommendation of Staff's expert, which are intended to avoid the possibility of creating significant and measurable changes in wave energy at some shoreline locations. Hence, Applicant concludes that not only has it shown that its studies support its conclusions, but that the permit conditions will avoid even the possibility of creating measurable changes in wave intensity which could cause erosion.

DEC Staff's Position:

Staff notes that its expert essentially agrees with Applicant's position, relying on Dr. Bokuniewicz' testimony that the uniform dredge scenario in Kinsman (similar to the proposed project in configuration) would cause some redistribution of wave energy along the south shoreline of Coney Island and the southeast shoreline of Staten Island, with the effect of reducing erosion in areas presently experiencing relatively higher rates of erosion. Conversely, increases in wave energy produced by this scenario were restricted to sectors presently experiencing no or slight erosion and would produce no substantive increase over that produced by natural processes, i.e., "background levels." Because of the Kinsman Study, Staff's Draft Water Quality Certification imposes Special Conditions to avoid the identified erosion impacts -- chiefly, requiring the mining to be conducted in a staged or "tiered" manner so as to avoid the creation of the deep pits which Dr. Kinsman established could generate increased wave energy at some sectors presently exhibiting higher wave energies.

The City's Position:

The City claims that Applicant's and Staff's conclusions are unsupported, pointing out that neither study evaluates the Proposed Project itself.

The City argues that the Kinsman Study used the mining scenarios only to illustrate how wave refraction analysis works, and not to be a final erosion analysis of the scenarios (let alone a complete erosion analysis of the Applicant's project).

The study cautions that specific projects should be analyzed.

Pointing to the plates that are part of the Kinsman Study, the City argues that dredging even small areas can have widespread effects on the distribution of wave energy throughout the Lower Harbor; and that without a wave ray analysis it is virtually impossible to say where wave energy associated with a particular wave will come ashore. The City contends that the Kinsman Study establishes that one cannot determine the effect of any mining scenario on wave energy without actually performing a wave refraction analysis for the particular project being considered.

The City claims that while there may be some parallels between the uniform depth scenario in the Kinsman Study and the proposed project, they are grossly dissimilar in both areal extent and depth. The large depression in the sea floor to be created by Applicant may cause variations in wave energy that cannot be predicted by observing wave ray configurations for a depression less than half the size. The City contends that due to the interactions between water depth and wave length or period, the shallower 60 foot depth proposed by Applicant will cause changes in wave direction over a wider range of common wind and wave conditions in the Lower Harbor -- making Kinsman's wave refraction analysis for 6-second waves in 90 feet of water irrelevant to the analysis of the 60-foot depth proposed by Applicant. The City argues that the evidence demonstrates that the wave ray patterns shown in the Kinsman Study for the dredging scenarios considered in that study would not be applicable to the Applicant's project. Consequently, the City concludes that the Kinsman Study cannot be used to predict variations in wave energy intensity and erosion that may occur because of the Applicant's project.

The City argues that the Kinsman Study will not support an inference that dredging to a uniform depth tends to make wave energy uniform along the shoreline because the study neither stated nor suggested such, and the study's numbers show otherwise.

The City also noted that although the Draft Certification prohibits the creation of deep isolated pits, it would not prevent the project site from being left with an uneven depth -- which could cause significantly different wave energy effects from whatever effects are produced by the even-depth proposed.

The City contends that the Bokuniewicz Study, which related increased wave energy to the "occurrence" or "frequency" of erosion, sheds no light on the potential erosion effects of Applicant's project because there is no correlation between the "occurrence" of erosion and the amount of material added to or removed from a beach; because the study's conclusion was based on an arbitrarily chosen average wave energy increase from "unspecified mining" of the Ambrose Channel; and because the study did not consider such things as storm and site-specific conditions, wave angle of incidence and longshore sediment transport.

The City contends that an evaluation of the increased wave energy at specific locales (having different natural features, infrastructure and development) under storm conditions is critical to understanding the effects of the project on coastal erosion, and notes that such an evaluation has not been done. The City points out that DEC's coastal erosion hazard maps depict virtually all of the south shores of Staten Island and Coney Island as erosion hazard areas because they are exposed to significant open water; and that storm surges recently caused significant damage to homes, seawalls, bulkheads and other structures in these locations. In addition, the City, State, and United States Army Corps of Engineers are already conducting a costly "beach nourishment project" on Coney Island to replenish sand lost to erosion and to serve as a buffer against storm surges.

The City further contends that possible changes to wave angle of incidence and longshore sediment transport must be taken into consideration, notwithstanding the presence of groins, because in most cases groins are not sufficiently long or high enough to prevent longshore transport when wave angle of incidence substantially increases. The City contends that coastal erosion hazard maps and various photos establish that longshore transport is now occurring in the area of interest. The City notes that a five degree change in the angle of incidence will tend to increase the volume of sand transported alongshore by a factor of five. The City argues that the plates in the Kinsman Study show that changes in the angle of incidence on the order of up to 30 degrees are possible, therefore the DEC should require Applicant to evaluate the effect of wave angle of incidence on wave energy and potential erosion.

The City argues that because Applicant failed to analyze the erosion impacts of the project, there is no basis for an analysis of the effects of the project on the local waterfront revitalization plan and no basis for determining how to minimize the potential adverse erosion effects of the project.

Findings of Fact

General Concepts - Waves, Erosion, and Predictive Techniques:

1. Ocean surface waves transmit their energy (originally from the wind) from their place of beginning to the shore where the energy plays an important role in coastal erosion.
2. Waves come in different heights (the vertical distance between the wave's highest point (the crest) and lowest point (the trough)), lengths (the horizontal distance between the crests of two succeeding waves), and periods (the time it takes one complete wave length to pass a given point). They carry energy proportional to the square of their height. Wave length is proportional to wave period per the formula "L=5.12T2," where "L" is length in feet and "T" is the period of a wave, expressed in seconds.
3. Ocean waves travel along rays, which are imaginary lines representing the direction in which the wave travels and the path taken by a particular packet of wave energy.
4. The direction in which ocean waves travel across the surface is affected by the relationship between wave length and the depth of the water over which the wave passes. As a wave passes, it will be influenced by water depths down to approximately one-half its wave length. In deep water (that is, water which is deeper than one-half the wave length), a wave will pass unimpeded. In shallow water (that is, water which is less than one-half the wave length), a wave will have friction with (or "feel") the bottom and slow down. What is "deep" or "shallow" will be different for waves of different length.
5. In deep water, there is no friction with the bottom, and a wave's crest line is generally straight, with all points along the crest line moving in the same direction at the same speed. All rays are parallel. In other words, in deep water, a wave generally moves in a straight line.
6. If a wave encounters shallow water at an angle, so that part of the wave is in shallower water than the remainder, the part in shallower water will have more friction with the bottom and slow down relative to and lag behind the remainder. This causes the wave crest line to become bowed, and the wave to change its direction of travel -- i.e., the rays become bent, carrying their energy packets in a new direction. This bending of the rays and change in direction of travel is called refraction.
7. If dredging changes shallow water depths, the amount of friction on passing waves is changed, resulting in a changed degree of ray-bending, i.e., a new pattern of refraction.
8. With information on the water depths traversed, the wave length (or, equivalently, the wave period from which the wave length can be calculated) and the initial direction of wave approach, the path that a particular wave will take may be calculated -- i.e., the wave rays can be traced from their offshore positions to their final impact on the coast. Such tracing is referred to here as wave ray tracing or wave refraction analysis.
9. Through choice of a representative set of waves (in terms of initial directions and wavelengths (or periods)), the "wave energy spectrum" or reasonable assumptions about the amounts of energy such waves carry, and measurements of water depths (i.e., the submerged topography or bathymetry) for the area of interest, one may use wave ray tracing to get a sense of how changes made to seafloor depth may redistribute wave energy along a nearby coast. One would plot the "before" and "after" ray patterns and energy distribution, and compare them to each other.
10. The greater the amount of energy carried by a wave to the shore, the greater will be its ability to move materials around and cause erosion. The most significant changes to a shoreline can occur during storms, which are high-energy events.
11. Waves move materials to varying degrees both on and off the shore (on/off or shore normal) and along the shore (longshore). The amount of sand in longshore transport is sensitive to the angle at which the waves strike the shore (the angle of incidence). Differences in the angle can result in significant differences in the amount of sand being transported. For example, assuming a beach without protective structures, a change in the breaker angle from 5 to 10 can double the amount of sand being transported. Also, energy changes that produce negligible effects in the on/or offshore beach profile may produce substantial alterations in the longshore profile.
12. The shore's condition (its "erodability") also affects whether or not erosion occurs when waves hit. Different shore materials can react differently. It takes more energy to move rocks and pebbles than sand grains. The availability of materials to replenish materials moved along the beach by longshore currents is important, with erosion occurring when more materials are carried away than brought in. There may be protective structures on the shore such as groins (hard structures constructed perpendicular to the shoreline across the beach) intended to prevent erosion by maintaining the beach in place.
13. Whether or not waves actually cause erosion when they reach the shore depends upon an interplay among wave energy, wave direction, and shore condition. For example, groins are expected to maintain a beach in place because they block the longshore movement of sand much like a dam blocks water. However, during storms, when waves have high energy, sand may be carried around either end or over the groin.
14. There is no single, widely accepted method for precisely estimating shoreline erosion and accretion. Models continue to evolve, the most sophisticated of which require extensive field measurements for calibration and verification, and tolerance of substantial uncertainties.
15. The U. S. Army Corps of Engineers has advocated the use of criteria to distinguish conditions associated with beach erosion from beach accretion, for situations where waves are shore normal or near-normal. One criterion is expressed as a mathematical relationship between wave steepness (So, the ratio of wave height (Ho) to wave length, both in deepwater), the settling velocity of sand grains (W, dependant upon grain size and water temperature), wave height, wave period (T), and an empirical coefficient (M, with a recommended value of 0.00027 derived from field observations). The criterion for the "occurrence of erosion" is that So < M (Ho/WT)3. However, there is no direct correlation between the "occurrence of erosion" and the amount of material added to or removed from a beach.

The Project Site and Environs:

16. The Applicant proposes to mine sand from 2 areas located in the Lower Bay of New York Harbor: inside the Chapel Hill North Channel, and an approximately 2500 acre area on the East Bank, east of Ambrose Channel. These sites are roughly illustrated as shaded areas on record Exhibit A-1, a portion of which is reproduced here as Appendix II. (For the purposes of this Report, "Project Site" will refer below only to the mining area on the East Bank, since that is the area on which the parties focused during the evidentiary hearing.)
17. The water depths over the Project Site vary in an uneven fashion. They are generally shallow (12' to 18') in the eastern half, and deep (30' to 60') in the western half, with a less shallow (18' to 30') area near the western boundary; with an overall range of 11' to 70' at mean lower low water.
18. At its closest points, the Project Site is approximately 1,400 yards south of Coney Island's south shore, and 3,200 yards west southwest of the west end of Rockaway Peninsula, both directly across open water. Further away, but in the vicinity across open water are: to the west, the south shore of Staten Island; to the southwest, portions of the New Jersey shoreline along Raritan Bay; and to the south, Sandy Hook (also in NJ). The DEC has classified virtually all of the New York shorelines mentioned as coastal erosion hazard areas, mainly because they are exposed to open water.
19. Certain areas along the south shores of Staten Island and Coney Island are noted to have recently suffered storm damage. Oakwood Beach, on Staten Island, suffered flooding which damaged structures, including a nearby City-owned sewage treatment plant. Cedar Grove, also on Staten Island, suffered damage to homes due to storm surges. Seagate, on Coney Island, experienced damage to seawalls and bulkheads. In addition, the City and State of New York and the United States Army Corps of Engineers are conducting a beach nourishment project on Coney Island to replenish sand lost to erosion and to serve as a buffer against storm surges. That project involves the initial deposit on the order of a million cubic yards of sand on Coney Island beaches, and then periodically renourishing the beach over a period on the order of ten years or so.
20. Longshore transport of materials plays a role in shaping beach features on both Coney Island and Staten Island (both of which have groins to varying degrees at different locations). Its role is exemplified by the asymmetries in the shape of the beaches around groins, and by the Great Kills Spit on Staten Island. Both Coney Island and Staten Island also exhibit "nodal points" about which the general direction of longshore transport changes. On Coney Island, on the order of 20,000 cubic yards of material migrate longshore per year.

The Kinsman Study:

21. The "Kinsman Study" is a paper dated July 1979 by Blair Kinsman, J. R. Schubel, George E. Carroll, and Mary Glackin-Sundell (collectively called "Kinsman") entitled "A Suggestion for Anticipating Alterations in Wave Action on Shores Consequent Upon Changes in Water Depths in Harbors and Coastal Waters."
22. The purpose of the Kinsman Study was to advocate the use of wave ray tracing as a tool for decisionmakers to predict the effect that dredging would have on the distribution of wave energy. Kinsman noted that although the method for constructing ray patterns had been known for many years (such being the foundation of Newton's "Optics") the months of tedious labor involved made it impractical for decisionmakers until the advent of the high-speed computer. Kinsman noted that the computer can store the data on regional bathymetry and wave characteristics, and compute the resulting ray patterns to show points of impact on the coast. To determine the effects of dredging, the bathymetry stored in the computer's memory would be altered to conform to the depths of the proposed dredging, and the computer could recompute the ray patterns which would then be compared with the previous results.
23. To illustrate "Obviously, it would be unwise to make any decision about the Lower Bay on the basis of our illustrative calculations." See "Kinsman Study" [Exhibit A-3] at page 24. how wave ray tracing could aid decisionmaking, Kinsman compared three mining scenarios on the East Bank with each other and with the "no dredging" condition and a "no refraction" hypothetical. None of these scenarios is the Proposed Project, but they all involved portions of the Project Site. The mining area considered by Kinsman (the "Kinsman Area") appears on Appendix II as that portion of the Project Site to the left of the dark line (i.e., approximately the western half of the Project Site). The Kinsman Area was divided into 18 sectors. At its closest points, the Kinsman Area is almost 1,900 yards southwest of Coney Island and approximately 4,500 yards west southwest of the Rockaway Peninsula. The Kinsman Area covers generally the deep (30 to 60') and less shallow (18 to 30') portions of the Project Site, and has an overall range of depths from 13' to 70'. The three mining scenarios Kinsman considered were: 1) mining 4 of the 18 sectors to a depth of 45 feet below sea level; 2) mining the same 4 sectors to a depth of 90 feet; and 3) mining the entire Kinsman Area to 90 feet.
24. In carrying out the task of determining the distribution of wave energy along the coast of the Lower Bay, Kinsman had to make several initial choices: 1) the area of bathymetry to digitize and store in computer memory (the entire Lower Bay was chosen); 2) the spacing of the grid points to be digitized (0.1 nautical mile was used); 3) the number, location and lengths that the coastline of the Lower Bay would be divided into for comparison (11 "impact strips" at specified locations with varying length were used); and 4) the waves to be used in terms of period and direction (six combinations of period and direction were chosen using 2, 6 and 10 second periods, with directions of 270 and 297). Why Kinsman made the particular selections was discussed in the Study.
25. From the information listed above, Kinsman had his computer generate a diagram for each wave showing the paths that 25 equally-spaced rays on the wave would take from the point where the wave enters the mouth of the Lower Bay to final impact on the coast. The process was repeated for each mining scenario, the "no dredging" situation, and the "no refraction" hypothetical. (See Appendix III for examples of the ray diagrams with the coastline and an outline of the Kinsman Area superimposed.)
26. For the 2-second (20 ft. wave length) waves, under the "no dredging" condition and in all mining scenarios, Kinsman's ray diagrams show almost no refraction from the mouth of the Lower Bay until they begin their run-up in the shoaling water fronting the shore. The rays are all essentially straight lines. (See Appendix III(a).) This is due to the fact that almost all areas within the Lower Bay are more than 10 feet (half the wave length) deep. Where rays are refracted (bent), depths are at 5 or 7 feet. Since the 2-second waves are not refracted while passing over the Kinsman Area under the "no dredging" condition, further deepening of the water would not be expected to affect them. This was verified by the duplicate ray diagrams produced under the mining scenarios.
27. The patterns generated for the 6-second (180 ft. wave length) and 10-second (500 ft. wave length) waves differ strikingly from the patterns for 2-second waves produced under the same conditions, in that their rays are not straight, but bend in many places. (See Appendices III(b) through (e) for examples). This is owing to the fact that at the wave lengths corresponding to the 6 and 10 second waves, most of the waters in the Lower Bay are "shallow," thus the waves would be subject to friction and refraction by the uneven bathymetry being crossed.
28. The patterns generated for the 6-second and 10-second waves under the same conditions differ from each other as well, indicating that waves of different length will be refracted differently by the same bathymetry.
29. The Kinsman Study's plates demonstrate that refracted rays, more often than not, hit far wide of the coastal points at which they were initially aimed. Following individual ray paths, it would be very difficult, if not impossible, without wave ray tracing to say where wave energy associated with a particular wave period and initial direction will come ashore.
30. Comparison of the patterns generated under the mining scenarios with those generated under "no dredging" conditions reveals that when refraction occurs under "no dredging" conditions (i.e., for the 6 and 10 second waves, but not 2-second waves), the rays which encounter a deepened area often follow a path that is different from the path under "no dredging" conditions.
31. Comparison of the patterns generated under the mining "selected areas" scenarios with each other reveal that the paths can be different when the identical areas are mined to different depths.
32. Kinsman assigned 1, 8 or 6 "Arbitrary Energy Units" to each ray associated with, respectively, the 2, 6 and 10 second period waves based on what experience suggested to him would be appropriate values to use in his illustrative calculation. He advised, "If the energy spectra are known, the energy ratio will, of course, be taken from them."
33. To put the information from the wave diagrams into a form that would be useful for managers and planners, Kinsman: a) counted the number of rays coming ashore on each impact strip from each of the 6 representative waves; b) multiplied the number of rays from each type of wave by the appropriate number of "Arbitrary Energy Units"; c) totalled the number of arbitrary energy units hitting each impact strip; and d) divided the strip energy totals by the number of meters in length of each strip to produce numbers representing the "Total Energy per Meter of Shoreline" for each impact strip. Kinsman produced such numbers for the "no dredging" condition, the "no refraction" hypothetical, and each of the three mining scenarios, and tabulated them so that the results could be compared. Kinsman's table has been reproduced below as Appendix IV, with the addition of percentages (rounded to the nearest percent) representing the degree of change over the "no dredging" condition. Appendix IV is incorporated into this Finding as Kinsman's results.

The Bokuniewicz Study:

34. The "Bokuniewicz Study" is a paper dated February, 1991 by Henry J. Bokuniewicz entitled "Notes on sediment transport associated with subaqueous sand mining in the Lower Bay of New York Harbor."
35. The purpose of the Bokuniewicz Study was to consider two issues related to a proposal to deepen part of Ambrose channel, and the possibility that mining of the East Bank shoal and elsewhere in New York waters would be licensed. Those issues were: 1) the adjustment of the channel floor over the pipeline crossing that might occur in response to deepening the channel on either side, and 2) the potential for changes in shoreline erosion or accretion along the Staten Island beaches.
36. In addressing the second issue, Bokuniewicz employed the U. S. Army Corps of Engineers procedures for distinguishing between those conditions that cause beach erosion and those that cause accretion. He selected average sand grain size, and mean water temperature based on available data; and used a distribution of wave heights and periods for the ocean entrance to the Lower Bay which had been calculated by another person from observed weather conditions over a 20 year period. Bokuniewicz determined that under existing conditions, 16.25% of the cases (the occurrences of particular combinations of wave heights and periods) would have produced erosion.
37. To see how the frequency for erosion (i.e., the 16.25% figure) would change due to sand mining, Bokuniewicz changed the input wave characteristics to reflect a 10% increase in wave energy (i.e., he used the 10% energy increase to calculate a 5% wave height increase given the mathematical relationship between energy and height). In selecting the 10% number, he said that the Kinsman Study showed, for the mining scenarios examined, that changes to wave energy reaching the Staten Island shore ranged from increases of 20% to decreases of 6%, and that 10% was considered to be a reasonable estimate of the magnitude of change for unspecified mining in the Bay.
38. Bokuniewicz determined that a 10% increase in wave energy would increase the number of cases that would produce erosion from 16.25% to 18.36%. In his study, Bokuniewicz opined that erosion modeling for specific mining activity would be difficult to justify in light of his calculation which suggested to him that "the change in occurrence of erosion would be very small and unlikely to have a demonstrable effect on the existing conditions." "Bokuniewicz Study" at page 6.

The Proposed Project and Conclusions from Studies:

39. The Proposed Project will involve dredging the entire Project Site to a depth of 60 feet in three phases: 30', 45', then 60'.
40. For all waves that are currently refracted by the existing bathymetry, each phase of the Proposed Project will result in different patterns of refraction and, ultimately, different distributions of energy among the surrounding shores, from any of the scenarios in the Kinsman Study. This is expected because each phase will result in a bottom configuration unlike any of the scenarios used to illustrate the Kinsman Study -- different in areal extent, boundary configurations, depths and/or spatial relationships to surrounding coastlines and incoming waves. The different configurations mean incoming wave rays will be generally exposed to different degrees of friction, at different locations and over different distances than any of the scenarios in the Kinsman Study.
41. The Proposed Project will result in a greater quantity of energy being redistributed among the shores than any of the scenarios illustrated in the Kinsman Study. The additional energy will come from two differences between the Proposed Project and the Kinsman scenarios: 1) the Proposed Project's much larger area and 2) the generally shallower depths that will be deepened. The larger area (more than double the Kinsman Area) makes a larger "target" that will intercept more wave rays and, consequently, more energy than the Kinsman Area, exposing such waves and their energy to a new bathymetry and redirection following Project completion. The generally shallower depths in the eastern portion of the Site currently refract a greater portion of the total wave energy spectrum than the depths of the Kinsman Area. These additional wavelengths now being refracted will experience a different degree of refraction when the shallow areas are deepened. In other words, those waves with wave lengths which are too short to "feel the bottom" of the Kinsman Area but long enough to feel the shallower areas of the Project Site will experience a different degree of friction (and refraction) when those shallow areas are deepened.
42. The Kinsman and Bokuniewicz Studies do not enable a reasoned analysis of the potential impact of the Proposed Project for the reasons discussed below.

CONCLUSION 3: With regard to shoreline erosion, the Kinsman and Bokuniewicz Studies do not enable a reasonable conclusion that the impact of the project will not be significant or will not rise to a level such that it will require imposition of conditions on the certification or denial of the certification.

CONCLUSION 4: DEC is unable to issue the written findings specified by 6 NYCRR 617.9 (c)(3) and (c)(4) regarding avoidance and minimization of adverse environmental effects, because the effects of the proposed project on shoreline erosion are unknown. Consequently, DEC is unable to approve of the action by issuing a water quality certification.

RECOMMENDATION 4: The application should be denied until such time that Applicant submits additional information that is sufficient to enable a determination of the effect of the project on shoreline erosion, and/or the development of mitigative measures which will ensure that any significant adverse effects of the project on erosion are avoided or minimized to the maximum extent practicable.

Discussion

This Discussion explains why the Kinsman and Bokuniewicz Studies do not enable a reasoned analysis of the potential impact of the Proposed Project, and summarizes how that finding leads to the legal conclusions above.

It is necessary to understand how the studies have been used before their value for decisionmaking can be assessed.

Of the Kinsman Study, Applicant focuses on the illustration portion. Applicant's Draft Environmental Impact Statement (DEIS), states, at page 124:

" . . . we anticipate a possible increase in wave energy along portions of the Coney Island shoreline. The wave model does not predict erosion since there are numerous other processes such as longshore currents, shore erodability and tidal range which affect the shoreline. The interactions between these numerous processes are complex and there is no unambiguous way to accurately predict the magnitude of shoreline changes due to changing conditions. 'Spotty' dredging of isolated deep pits which increased the wave intensity in parts of Staten Island will not be done and, while the reduction in depth over large areas did increase the wave activity on Coney Island, the increase was very marginal (4.4 percent) and, at the same time, there were reductions of up to 20 percent on the Staten Island shore."

The numbers and locations mentioned come from Kinsman's "uniform depth" scenario. The "isolated deep pits" mentioned refers to Kinsman's "selected areas" scenarios. It should be noted that the Kinsman Study did not use the "isolated deep pits" terminology. Essentially, Kinsman's "uniform depth" scenario numbers are used to suggest what Applicant's project would do to wave energy levels at particular places (i.e., cause up to 20% decrease in energy at Staten Island, and only a 4.4% increase at Coney Island). As indicated above and by testimony and briefs, Applicant infers from the differences between Kinsman's "uniform depth" and "selected areas" scenarios' numbers that dredging to a uniform depth would generally result in a "more uniform" i.e., lowering the "highs" and raising the "lows," see Tr. 91 distribution of wave energy. Staff made a similar inference, which provided the basis for the conditions in the draft certification that are intended to prevent the creation of "isolated deep pits."

Since the Kinsman Study did not deal with erosion, but, rather, with redistribution of wave energy, the Bokuniewicz Study is used to put Kinsman in perspective -- to show that the typical energy increases found by Kinsman would result in very small and undemonstrable changes in the occurrence (frequency) of erosion. This fact is the underpinning of Applicant's ultimate conclusion that the Proposed Project will not significantly impact shoreline erosion, as well as the justification for the position that no specific modelling of the Proposed Project is needed.

The wrong conclusions have been drawn from these studies.

A major obstacle to reliance on both the Kinsman and Bokuniewicz Studies (the latter because it purportedly relies on Kinsman's numbers) is Kinsman's warning that "Obviously, it would be unwise to make any decision about the Lower Bay on the basis of our illustrative calculations." Emphasis added. See the "Kinsman Study" [Exhibit A-3] at page 24 and Findings 21, 22 and 23. The Kinsman Study was only intended to advocate the use of wave ray tracing as a tool for decisionmakers. The mining scenarios and calculations were basically instruction on the tool's use. Kinsman was not trying to advise decisionmakers on which of the particular scenarios to implement; nor was he trying to establish generalizations about "uniform depth" vs. "deep pits"; nor was he trying to generally show the magnitude of energy changes that could be expected from unspecified mining on the East Bank. The latter two are inferences that project advocates want the decisionmaker to draw from Kinsman's work in order to support a favorable decision on the Proposed Project. However, by the quotation above, Kinsman could not more plainly state that his calculations should not be relied upon for making "any decision ..." -- a repudiation by the author of their value for such inferences. Attempts to characterize the warning differently are speculative. It must be taken at face value. It is unreasonable to ignore this warning.

For the purpose of evaluating the Bokuniewicz Study, it is presumed that the "frequency of erosion" concept used in that study is the proper thing for the decisionmaker to focus on when drawing conclusions on the Proposed Project's impact. The usefulness of this concept is not clear, however. The lack of a direct correlation between frequency and intensity of erosion implies that the frequency number will not alert the decisionmaker to potentially significant changes in erosion intensity if they exist. using "significant" to mean changes of a magnitude that would warrant project modification or denial. Dr. Bokuniewicz made clear in testimony that he was not opining that there would be no undetectable change to erosion, but, rather, he expressly confined his opinion to erosion frequency. Tr. 185-186.

Assuming that it was proper to use Kinsman's results, and that all the assumptions underlying his own calculation apply (including that Kinsman's results represent the energy changes that could follow unspecified mining of the East Bank), Bokuniewicz' use of a "typical" Tr. p. 223 10% increase in wave energy presents another major obstacle to drawing a conclusion about the Proposed Project. Using such, the calculation is expected to result in a "typical" change to erosion frequency. However, using a typical increase avoids examination of the larger increases that Kinsman showed could occur under various scenarios (e.g., 18%, 39%, 44%, 51% and 100% Most of these percentages pertained to "low" energy areas (relative to each other) outside the Bokuniewicz Study's place of interest (Staten Island, Finding 35). However, the "39%" was for a "high" energy area on Staten Island (see Finding 33, Appendix IV). This number is beyond the range reported by the Bokuniewicz Study (see Finding 37, Exhibit 2-H p. 6); and was disregarded without an adequate explanation (Tr. 217-8). ). Selecting a "typical" increase does not take into account or expose spatial variations in surface wave energies which may cause shoreline changes at particular locations. If significant changes to erosion frequency are possible, the larger values would be the ones most likely to cause them. Thus, the potential for change to shoreline erosion frequency is not revealed by the study's calculation based on 10%. Kinsman's numbers, even when confined to the "uniform depth" scenario, indicate that 10% will be exceeded. This makes the calculated frequency unreliable for assessing the potential impact of the Proposed Project.

The unreliability of the Bokuniewicz Study's calculated frequency for evaluating the Proposed Project is exacerbated by certain assumptions that were made. The calculation employed a formula which assumes no significant longshore transport. Energy changes that produce negligible effects in the on/or offshore beach profile can produce substantial alterations in the longshore profile (Finding 11). Here, the underlying assumption that there is no significant longshore transport conflicts with actual conditions locally around the Lower Bay. Whatever its percentage of the total transport, the longshore component is significant enough on Coney and Staten Islands to produce visible features (Finding 20). This indicates that the calculated erosion frequency may not alert the decisionmaker to potentially significant changes, even assuming that the 10% figure was a proper one to use.

Another problematic assumption implicit in the Bokuniewicz Study is that Kinsman's results somehow represent the range of what unspecified mining of the East Bank could do. The basis for the assumption is unknown.

There is no basis to assume that the Kinsman's Study's results (the "uniform depth" scenario results in particular) suggest the effects of Proposed Project on wave energy levels, even assuming that the selections Kinsman made to set up the model (such as wind directions, wave energy spectrum, and the configuration of impact strips -- see Finding 24) are appropriate selections for analyzing the Proposed Project. It should be noted that Kinsman indicated some of the factors to be considered in making appropriate selections and gave explanations for some of the selections he made. The record does not reflect the existence of a reasoned consideration of factors that would provide a basis to assume that Kinsman's selections to illustrate a technique are also appropriate to determine the effects of the Proposed Project on coastal erosion. As noted in Finding 29, it's very difficult without wave ray tracing to say where wave energy associated with a particular wave period and initial direction will come ashore. As indicated by Finding 40, the Proposed Project will result in an energy distribution pattern unlike that of Kinsman's "uniform depth" scenario, owing to its larger area, different final depth, different boundary configurations, and different spatial relationship to surrounding coastlines and incoming waves. Whether or not the distribution will be "significantly" different was not analyzed. However, the "significant" differences among Kinsman's scenarios (i.e., with changes up to orders of magnitude [-100% -- +100%]) suggest that it could be. All Kinsman's scenarios were located within the confines of the uniform depth scenario. Here, most of the Proposed Project will be conducted in entirely new territory having shallower depths. This and the fact that more wave energy will be affected by the Proposed Project (Finding 41) suggests that Kinsman's results may not even represent the range of potential changes. It appears that without a project-specific wave refraction analysis, it's anyone's guess where the wave energy intercepted by the Proposed Project will wind up. Simply, the Proposed Project appears to be too different from Kinsman's uniform depth scenario to rationally equate the two.

The Kinsman Study does not support Applicant's generalization that uniform depths will result in a "more uniform" distribution of wave energy about the Lower Bay. Conclusions reached by contrasting Kinsman's "uniform depth" scenario with the "selected areas" scenarios in this regard must be confined to those scenarios themselves. See Tr. pp 101-108, particularly 105. Applicant's witness referred to a specific scenario when answering questions designed to elicit a generalization. It's noted that Kinsman's "uniform depth" scenario numbers show a 4.4% energy increase at Coney Island which is already an area of higher energy -- thus, not a "more uniform" distribution as defined by Applicant's witness. Assuming the "uniform depth" scenario did produce a "more uniform" distribution of wave energy, this one example would not rationally support a generalization absent provision of a clear underlying theory of why it should be so -- it could have just happened that way by chance. No such explanation was provided.

Staff's inferences regarding Kinsman's scenarios are refuted by them. In explaining how Staff viewed Kinsman's results, Staff's witness indicated that if the entire Lower Harbor were uniformly dredged to a deeper depth, "probably the distribution of wave energy around the harbor would not change dramatically." Tr. 567. The principles of wave refraction, examination of the Kinsman Study's plates, and consideration of the Kinsman results for "no refraction" dispel this idea. Were there no refraction, all wave rays would continue to travel in the direction they start with -- parallel to each other. Whatever coastal area they point to initially will be the coastal area at which they come ashore. This would be close to what is illustrated by Kinsman's plates for 2-second waves (see example in Appendix III(a)) because the corresponding wavelength is too short to be refracted (i.e., most places in the Bay are too deep for these waves to "feel bottom"). In a "no refraction" hypothetical, all wavelengths would exhibit such a pattern. What this means in terms of numbers is in Kinsman's "no refraction" numbers (Appendix IV). The current distribution of wave energy about the Lower Bay is the result of its uneven bathymetry -- friction with the uneven bottom breaks waves up sending rays, initially all travelling in the same direction, into different directions. While the 2-second waves are too short to be affected, the 6 and 10-second waves exhibit complicated patterns (Appendix III(b) and (c)). If the entire Lower Bay bottom were dredged to a uniform deeper depth, the wave rays for the 6 and 10 second waves would straighten out and become like those of the 2-second waves, because the uneven bottom would be made smooth. In other words, "no refraction" would be achieved for all wave lengths because no part of a wave would be in shallower water than another part (see Finding 6). One only needs to look at the plate for the 2-second waves to realize that if refraction of the 6 and 10-second waves were eliminated, the shore of Staten Island would suffer significantly increased attack. In terms of numbers Kinsman's "no refraction" numbers show, e.g., Impact Strip III going from 7.3 to 109.5 arbitrary energy units, and Strip V (already a "high energy" area in comparison with other strips) going from 270.0 to 650.9. Contrary to Staff's witness' assertion, these would be "dramatic" changes of orders of magnitude. This also clearly would not be a "more uniform" distribution of wave energy, dispelling Applicant's generalization that "uniform depth" creates a "more uniform" distribution.

Even if the Kinsman and Bokuniewicz Studies can be used, they are insufficient to support a rational conclusion about the Proposed Project's erosion impacts. This is not a matter of simply desiring more information to be sure of the determination being made. Rather, basic information necessary to the determination is missing. As noted in Finding 13, it is the interplay of wave energy, wave direction, and shore condition that determines whether or not erosion will occur. The two studies essentially dealt with energy -- neither accounted for the other factors to arrive at conclusions about the consequences to erosion itself.

What the lack of basic information means is that the decisionmaker will be unable know the answer to basic questions about erosion impacts. For example, we know that the most significant changes to shorelines can occur during storms, because that's when waves have higher energy (Finding 10). It's established that Coney Island shores have experienced storm damage (Finding 19), and that those shores exhibit features from longshore transport (Finding 20). Even though the shores are groined (Finding 20), the effectiveness of shoreline protective structures can be overcome during storms (see Finding 13). Even small changes in energy or angle of incidence can make great changes in the amount of material in longshore transport (Finding 11). Knowing all this raises a concern over whether or not the noted 4.4% increase in wave energy at Coney Island could make a significant difference to erosion effects on those shores under storm conditions, and be a difference that warrants some type of response. The lack of analysis of the interplay of the various factors (energy, direction, and shore condition) in the studies and DEIS prevents the question from being answered.

The potential of the Proposed Project to cause shoreline erosion is essentially unknown. No "hard look" has been taken on the Project's impact to shoreline erosion as required by SEQRA. (See H.O.M.E.S. v. N.Y.S. Urban Development Corporation, 69 AD2d 222, 418 NYS2d 827 (4th Dept., 1979); Aldrich v Pattison 107 AD2d 258, 486 NYS2d 23 (2nd Dept., 1985)). At this point, about all that is known is that wave energy will be intercepted and redistributed. Where the energy will wind up, and what it has the potential to do when it gets there, is unanalyzed.

Since the impact is unknown, the Department has no way of knowing whether or not the impact would warrant denial of the certification or the imposition of significant conditions. The Department clearly has no basis upon which to issue the findings that are required under SEQRA and the implementing regulations.

Recapitulation of Conclusions and Recommendations

DEC may impose the environmental monitor requirements on Applicant due to its responsibilities under both SEQRA and the Federal Water Pollution Control Act. Draft Special Condition 16 does not have to be changed because it does not contravene state water quality regulations. DEC is unable to issue the required findings under SEQRA regarding avoidance and minimization of adverse environmental effects, because the effects of the proposed project on shoreline erosion are unknown. Consequently, DEC is unable to approve of the action by issuing a water quality certification.

The environmental monitor provisions should not be deleted from the certification. The changes requested by the City with regard to Draft Special Condition 16 and formal reevaluation after five years should not be considered further. The application should be denied until such time that the Applicant submits additional information that is sufficient to enable a determination of the effect of the project on shoreline erosion, and/or the development of mitigative measures which will ensure that any significant adverse effects of the project on erosion are avoided or minimized to the maximum extent practicable.

Appendices:

I - Proceedings

II - Map Showing Project Site

III - Selected Ray Diagrams

IV - Table of Kinsman's Results

Appendix I - Proceedings

Statutory and regulatory provisions applicable to proceedings on this type of application are: Environmental Conservation Law ("ECL") Article 3, Title 3 (General Functions); Article 70 (Uniform Procedures); and Article 8 (Environmental Quality Review). Also applicable are Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Part 621 (Uniform Procedures); Part 624 (Permit Hearing Procedures); 6 NYCRR Part 608.7 (Water Quality Certifications); and Part 617 (SEQR).

Applicant initially applied for the Water Quality Certification during April, 1984. Following Applicant's submission of other documents (including a Draft Environmental Impact Statement ("DEIS")) over a period of years, DEC Region 2 Staff ("Staff") issued a Notice of Complete Application ("NOCA") for the Proposed Project which was published on October 7, 1992 in the Department's Environmental Notice Bulletin ("ENB") and October 9, 1992 in the New York Post.

On January 6, 1993 the DEC Office of Hearings received from Staff copies of the application documents, and the written comments that had been filed in response to the NOCA, for the purpose of scheduling a public hearing. On January 7, 1993, Frank Montecalvo was assigned to be the Administrative Law Judge (the "ALJ") who would hear the matter.

Following receipt and confirmation of the information to be published, the Notice of Public Hearing (the "Notice") was issued January 29, 1993, and was published in the ENB on February 3, 1993, and in the New York Post on February 5, 1993. Notice was also directly mailed by the Office of Hearings on February 1, 1993 to the clerk or chief executive officer of New York City and Queens County, as well as to other persons deemed interested in this proceeding. On February 4, 1993, Staff also directly mailed the Notice to other persons deemed interested in this proceeding.

The public hearing commenced on Wednesday, March 3, 1993, at the First Floor Meeting Rooms 1 and 2, 80 Centre Street, New York, NY, with a public statement session beginning at 11:00 AM. DEC Staff was represented by Paul Gallay, Esq., Regional Attorney. The Applicant was represented by Robert J. Fleury, Esq. Members of the general public were invited to make unsworn statements on the Proposed Project and DEIS. Statements were taken from 7 persons, including one each from Applicant and Staff, and 2 on behalf of New York City. The ALJ also received written statements pursuant to the Notice. Eight written comments had been submitted through March 17, 1993, which were subsequently transmitted to the Applicant. The oral and written statements, as well as eleven written comments that had previously been filed with Staff in response to the NOCA (including one from Staff), were made part of the record. Applicant filed responses to all these comments as of late May 1993.

At the public statement session, Applicant announced that the Proposed Project described in the Notice had been changed to eliminate three sites which had originally been proposed to be mined as sources of beach nourishment sand for State and Federal coastal hazard protection programs.

The Issues Conference was convened following the public statement session to determine Party Status (and manner of participation) for persons who had requested it, and to define which Issues required adjudication, if any. On opening the issues conference, certain documents were marked as exhibits for identification. These exhibits related to (1) the Notice of Hearing, (2) the Application and Applicant's position, (3) Staff's position, (4) Public Comments and (5) requests for Party Status.

Two requests for Party Status had been filed on or before the February 26, 1993 deadline: one from the Friends of Rockaway, Inc. (Bernard J. Blum, President), and one from The City of New York. The Friends of Rockaway, Inc., did not appear at the Issues Conference. Since they were not present to support their request for Party Status, it was denied. Their request was deemed to be a public comment requiring a response from Applicant before close of the official record.

The City of New York (the "City") appeared through Mary Kellogg Modig, Esq., Assistant Corporation Counsel with the City Law Department, Environmental Law Division. The City was granted Party Status upon the agreement of Applicant and Staff. The City's Party Status request was deemed to also be a public comment, to ensure that concerns which did not become issues for adjudication would be responded to in writing by Applicant before the close of the record.

Both Staff and Applicant indicated that the project was not permittable at that time because a certification of consistency with the State's Coastal Zone policy had not been made, which certification is a prerequisite to the Department's issuance of Findings under SEQRA. The ALJ requested Staff to file the SEQRA Positive Declaration and DEIS Scoping document.

No Draft Water Quality Certification was available from Staff at the commencement of the Issues Conference. Applicant was not prepared to agree at the Issues Conference to Staff's desire for "dredging windows" (constraints on the time of year that dredging would be permitted for the purpose of protecting aquatic life). Staff indicated it had inadequate information to determine whether or not the "windows" were necessary, but was seeking same.

The concerns expressed in the City's filing for Party Status were discussed to focus potential issues. Applicant agreed to an adjournment of the Issues Conference without date to allow for development of a monitoring program, and agreed to undertake further discussions with Staff on the necessity for baseline data in excess of that already in existence. The parties agreed on a schedule for Staff to develop a Draft Water Quality Certification, for Applicant to respond to the Draft Water Quality Certification and any additional public comments, and for the City and Staff to respond to the foregoing. The Issues Conference was adjourned without date pending receipt of the submissions.

By motion dated March 9, 1993, Applicant moved to dismiss the application for Party Status by the Friends of Rockaway, Inc. The Friends of Rockaway responded to the motion March 12, 1993. The ALJ responded by letter dated May 11, 1993 which noted that the motion was moot because the application for party status had already been denied at the Issues Conference.

In a March 16, 1993 letter, Applicant requested that a February 1991 study entitled "Notes on sediment transport associated with subaqueous sand mining in the Lower Bay of New York Harbor" by Henry J. Bokuniewicz, be included in the record to support Applicant's assertion that the proposed project will not have any appreciable adverse effect on shoreline erosion. No one objected to this request. By letter dated May 11, 1993, the ALJ noted the document's addition to the record.

A Draft Water Quality Certification was received from Staff May 18, 1993. The parties subsequently exchanged responses.

By letter of June 2, 1993, Staff requested that prior to resumption of the hearing, notice of the Draft Water Quality Certification's existence be published in the ENB, be distributed to persons who submitted written comments on the DEIS, and that a written comment period be provided. The City supported the request. Applicant, however, requested that publication be delayed until Staff decided whether or not it would revise the Draft Water Quality Certification after considering the parties' responses. By letter of June 11, 1994, the ALJ indicated that publication should be postponed until Staff decided on the need for revisions.

By letter of June 25, 1993, Staff indicated that it would meet jointly with the other parties to resolve matters related to the Draft Water Quality Certification, and that the Draft Water Quality Certification should be made available to the public after this occurred. In an August 18, 1993 letter, Staff advised that it would revise the Draft Water Quality Certification, and that Applicant would provide a proposed "mining protocol." Staff submitted a revised Draft Water Quality Certification on or about October 7, 1993. Applicant submitted a proposed mining protocol on or about November 2, 1993. On November 3, 1993 in a conference call and telecopied memorandum, the ALJ directed the parties to file statements summarizing what appeared to be the issues remaining to be resolved, and scheduled the Issues Conference to reconvene on December 21, 1993. The statements were received on or about November 12, 1993.

A notice advising the public that the project had been revised, that a Draft Water Quality Certification and other documents were newly available for review and comment, that the public comment period had been extended, and that the Issues Conference would reconvene, was mailed by Staff to interested persons on November 23 and published in the ENB on November 24, 1993. Persons were advised to file comments with the ALJ by December 20, 1994. Several comments were filed.

The Issues Conference resumed on December 21, 1993. Steven Goverman, Esq. appeared on behalf of Staff (and represented Staff for the balance of the proceedings). With certain exceptions noted below, the parties were in substantial agreement on what were and were not issues requiring adjudication. The parties agreed that the matter identified under "Evidentiary Hearing Issue" in the Report, above, required an evidentiary hearing to be resolved. The City disagreed with the ALJ's rulings that "aspect ratio," testing methodology for contaminants in sediments, and turbidity controls were not issues requiring a hearing. However, the City indicated some of these concerns might be resolved by expected agreement on added changes to the Draft Water Quality Certification. The parties agreed that other areas of disagreement did not warrant an evidentiary hearing, would also likely be resolved by agreement before proceedings were over, and, if not so resolved, would appropriately be dealt with via briefs at the end of the proceedings. The ALJ scheduled the adjudicatory hearing to commence January 27, 1994, and set the deadline for appeals of the issues rulings at one week after receipt of the conference transcript.

On January 14, 1994, the parties agreed on more revisions to the Draft Water Quality Certification.

The City appealed the ALJ's ruling that there was no issue regarding testing methodology for contaminants in sediments. By Interim Decision dated February 17, 1994, the Commissioner determined the City had raised no issue.

On January 18, 1994, the ALJ transmitted to the Applicant the public comments received between March 17, 1993 and the December 20, 1993 close of the public comment period. Applicant's responses to these comments were received April 25, 1994 and made part of the record.

At the request of the City and with the agreement of the other parties, commencement of the adjudicatory hearing was postponed until February 10, 1994. The hearing took place February 10, March 7 and 8, April 5 and 7, and May 2 and 5, 1994, when it concluded. The hearing dates were agreed upon by the parties to accommodate each other's schedules and those of their expert witnesses. Dr. Henry J. Bokuniewicz, Mr. William Daley, and Dr. Frank Bohlen testified as witnesses on behalf of the Applicant, Staff and the City respectively.

During the hearing on April 5, 1994, Staff indicated it had changed its position regarding certain provisions of the Draft Water Quality Certification, and that its position was reflected in a February 2, 1994 Draft Water Quality Certification (Exhibit 3F). Applicant objected to the changes being placed on the record at that time, noting that they were still the subject of negotiation between the parties. Since the City's expert witness was testifying with regard to certain of these provisions, since other witnesses apparently had done the same, and since Staff stated the changes reflected Staff's then current position, the changes were placed on the record. However, Applicant's rights to move for appropriate relief addressing the mid-hearing changes were reserved upon in the event the parties did not reach an apparently expected agreement on the provisions.

In response to a motion from Applicant and following responses from the other parties, a ruling was made by letter dated May 31, 1994 concerning the admission of certain testimony relative to "cumulative impacts," which had previously been objected to at the hearing and reserved upon.

Simultaneous closing briefs and replies were exchanged on the "Evidentiary Hearing Issue," and on certain "Legal or Policy Issues" which had originally been broached at the Issues Conference (see Report, above).

The record closed on July 13, 1994 on receipt of the last of the reply briefs.

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