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Perretti, John - Decision and Order, January 17, 2001

Decision and Order, January 17, 2001

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter

of

the Proposed Revocation of the tidal wetlands permit of JOHN PERRETTI pursuant to
Articles 25 and 70 of the Environmental Conservation Law and Parts 621 and 661
of Title 6 of the New York Compilation of Codes, Rules and Regulations

Decision and Order

DEC Project No.

1-4736-03583/00001

WHEREAS:

  1. Pursuant to §§ 621.14(a)(1) and (3) of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR), the staff of the Region 1 office of the New York State Department of Environmental Conservation (DEC) commenced a proceeding to revoke the tidal wetlands permit it issued to John Perretti on October 8, 1997 and modified on April 15, 1998.
  2. Upon the request of the permittee, a hearing was convened in the Region 1 offices on November 14-15, 2000 and after the receipt of the hearing transcript and corrections to that transcript, Administrative Law Judge (ALJ) Helene G. Goldberger closed the record of this proceeding on January 2, 2001.
  3. Section 621.14(a)(1) of 6 NYCRR provides that permit revocation is appropriate when the application or supporting materials submitted by an applicant contain "materially false or inaccurate" information. Section 621.14(a)(3) allows for revocation when the project has exceeded the scope of the project as described in the permit application. As the ALJ found in her report, the evidence provided at the two-day hearing does not clearly establish that the water depths submitted by the applicant Perretti in 1997 were false or inaccurate. Neither the applicant's consultant nor DEC Staff verified the depths in the field that were provided as part of the application but that does not automatically establish that the application was inaccurate. The hearing evidence did establish that the water depths in Shinnecock Bay are generally shallow and vary depending upon location and tides. In addition, the permitted construction itself was forecasted by DEC as potentially causing accretion at the site. Thus, there is no reliable manner to determine at this juncture what the depths were in 1997. I conclude as did the ALJ that based upon this record, the standards in 6 NYCRR 621.14(a)(1) for revocation have not been established.
  4. With respect to the ice pilings, it is clear that these eighteen structures did not appear on any of the plans and therefore these pilings exceed the project scope pursuant to 6 NYCRR 621.14(a)(3) and should be removed according to a schedule and protocol set by Region 1 staff. The record also indicates that the permittee will not contest this determination.
  5. I adopt the findings of ALJ Goldberger's hearing report (attached).

NOW, THEREFORE, having considered this matter, it is ORDERED that:

  1. Pursuant to 6 NYCRR 621.14(a)(3), the permittee, John Perretti is found to have exceeded the scope of the project that was authorized by the DEC permit issued to him on October 8, 1997, and modified on April 15, 1998, by having erected eighteen ice pilings as part of the construction of his fixed timber dock in Shinnecock Bay located at 18 Donellan Drive East in Hampton Bays, Long Island.
  2. The permittee must remove those eighteen ice pilings pursuant to protocol and time limitations provided to the permittee by Region 1 Department staff within sixty (60) days from the date of this order.
  3. Based upon a failure of the evidence to demonstrate that materially false or inaccurate statements were submitted by the permittee in support of its permit application, the permittee may maintain his dock as currently permitted.
  4. All communications between respondents and Department staff concerning this order shall be made to the Regional Director, Department of Environmental Conservation, Region 1, Building 40, SUNY Stony Brook, New York 11790-2356.
  5. The provisions, terms and conditions of this order shall bind the permittee, his agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of him.

State of New York
Department of Environmental Conservation
_____________/s/_____________
John Cahill, Commissioner

Dated: Albany, New York
January 17, 2001

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

In the Matter

- of the-

Proposed Revocation of the tidal wetlands permit of JOHN PERRETTI pursuant to Articles 25 and 70 of the Environmental Conservation Law and Parts 621 and 661 of Title 6 of the New York Compilation of Codes, Rules and Regulations

DEC Project No. 1-4736-03583/00001

HEARING REPORT

-by-

Helene G. Goldberger
Administrative Law Judge

PROCEEDINGS

Background

In August 1997, the permittee, John Perretti, applied to the New York State Department of Environmental Conservation (DEC or Department) for a permit pursuant to Articles 15 and 25 of the Environmental Conservation Law (ECL) to build a dock and install mooring piles in Shinnecock Bay at his home at 18 Donellan Drive East in Hampton Bays. In January 1998, this application was modified to request permission to include a wave curtain and two additional mooring piles. The Department staff approved the application and the modification in September 1997 and April 1998, respectively. As a result of a complaint regarding the dock received by Department staff, inspections were performed and the staff determined that water depths shown on the approved plans did not accurately reflect site conditions. In addition, staff assessed that the permittee had installed eighteen ice pilings that were not part of the application. Because the staff concluded that the ice pilings exceeded the scope of the project and the approved plans did not reflect the actual site conditions, staff decided that the permit should be revoked pursuant to §§ 621.14(a)(1) and (3) of Title 6 of the New York Compilation of Codes, Rules and Regulations (6 NYCRR). Staff sent a letter of intent to revoke the permit to Mr. Perretti on December 9, 1999 and on December 17, 1999, Mr. Perretti requested a hearing pursuant to 6 NYCRR § 621.14(d). After a number of adjournments, Administrative Law Judge Helene G. Goldberger convened the hearing on November 14-15, 2000 in DEC's Region 1 offices in Stony Brook, New York.

Assistant Regional Attorney Craig Elgut represented DEC staff at the hearing. The staff presented two witnesses - Mr. Charles Hamilton, the Regional Natural Resources Supervisor and Alternate Permit Administrator, and Mr. Christfried Arfsten, Marine Resource Specialist. The permittee was represented by attorney Eric Bressler of Wickham, Wickham & Bressler, P.C. of Melville, New York. Mr. Perretti and Mr. Robert E. Herrmann of En-Consultants, Inc. testified on behalf of the permittee. Thirty-five exhibits were received in evidence. The first volume of the transcript of the hearing was received by the Office of Hearings and Mediation Services on December 8, 2000 and the second and final volume was received on December 11, 2000. On December 20, 2000, I sent to the parties an errata sheet with corrections to the transcript and requested their corrections and objections to those changes be submitted by December 29, 2000. On December 27, 2000, I received Mr. Elgut's additional corrections which I incorporated into the transcript. By letter dated December 29, 2000, I received a response to the corrections made by myself and Mr. Elgut. I responded to these objections by letter dated January 2, 2001 thereby closing the record in this matter.

SUMMARY POSITIONS OF THE PARTIES

The Staff

The staff argues that based upon the application process in which En-Consultants, Inc., on behalf of Mr. Perretti, submitted several plans, descriptions and other information in response to the Department staff's notices of incomplete application, the significance of the water depths was plain. Yet, according to staff, after the permit was issued and the structure was complete, its site inspections in response to complaints from the Town of Southampton revealed water depths that did not reflect the application processed by staff, in addition to construction of the ice pilings that exceeded the scope of the permit. Staff contends that it would never have issued a permit to Mr. Perretti based upon the shallow depths that exist today because the dock would not meet the standards set forth in Part 661 of 6 NYCRR. Accordingly, the staff requests removal of this structure.

The Permittee

The permittee emphasized the amount of time that has passed since the Department issued the permit in 1997 and contends that there is no proof that the water depths were not as they were represented in the permit application at that time. Mr. Perretti sought to prove at the hearing that the water depths have changed at the site, in part due to the permitted construction of the dock. The permittee maintains that the dock was very costly to build and it would be unfair to force its removal. As part of his case, Mr. Perretti attempted to demonstrate that there were other docks in the vicinity of his that were subject to similar site conditions and thus the Department staff was not treating him fairly. Moreover, Mr. Perretti represented that the boat he keeps at this dock is specifically designed for shallow waters and will cause minimal harm to the environment. With respect to the ice pilings, although the permittee maintains that these were within the scope of the application, Mr. Perretti is willing to remove them.

FINDINGS OF FACT

  1. John Perretti is the owner of property adjacent to and within a mapped area of tidal wetlands (New York State Tidal Wetlands Map 710-526) and the waters of Shinnecock Bay at 18 Donellan Drive East in Hampton Bays, New York. By application to DEC dated August 4,1997, En-Consultants, Inc., on behalf of Mr. Perretti, requested a permit pursuant to ECL Articles 15 and 25, to construct a fixed timber dock, 150 feet in length, and to install seven 9-inch mooring piles in Shinnecock Bay. The application notes that the water depth at low water, adjacent to the end of the pier where the boat was to be docked, was 2.5 feet.
  2. By notice of incomplete application (NOIA) dated August 14, 1997, Darlene Gerbino, of DEC's Region 1 staff, advised Mr. Perretti that there was a discrepancy with respect to the location of apparent high water (AHW) and apparent low water (ALW) on the project plan and the cross-view diagram. Staff uses this information in assessing the tidal wetland boundaries and characteristics.
  3. By letter dated August 18, 1997, Kristen K. Parris of En-Consultants, Inc. submitted a corrected workplan for Mr. Perretti to the Department staff.
  4. Ms. Gerbino sent another NOIA to the applicant dated August 25, 1997 that noted that the plans submitted did not show water depths at 10 foot intervals. Staff requires this information in order to assess the nature of the wetlands in the vicinity of the proposed project.
  5. By letter dated August 27, 1997, Ms. Parris sent to Ms. Gerbino plans that indicate water depths at 10 foot intervals and provide that the average low water indicated on the cross-section plan is closer to the landward edge of the proposed dock. The cross-section plan that was submitted with the application dated August 4, 1997 indicated ALW at approximately 80 feet seaward. The difference in the two drawings is that in the later submission 30 feet of mud flats are exposed as opposed to approximately 80 feet. The earlier submission indicates on this drawing that there is fifty feet of area above high water and the later submission indicates 17 feet above high water. Prior to submitting this information to the Department, Ms. Parris did not take water depth readings on site. Instead, she relied upon general information that she obtained indirectly from either Town of Southampton Trustee Wagner and/or other application files in the offices of En-Consultants such as that of client Helen Burgess. The depth measurements depicted on the Burgess plans are identical to those submitted by En-Consultants on behalf of Mr. Perretti. The Burgess site is located approximately 1500 feet south of Mr. Perretti property.
  6. The staff determined that the application was complete by notice dated September 9, 1997 and a permit was issued on October 8, 1997. Prior to issuance of the permit, staff did not perform any site inspections to verify whether the information provided by the applicant was correct.
  7. By letter dated September 15, 1997, Ms. Parris, on behalf of the permittee, submitted a request to the Department to expand Mr. Perretti's dock to 170', to construct a 40' wave break on the seaward end of the pier, and to reduce the number of mooring piles to four. The plans that accompany this request contained the same water depth information indicated in the permittee's submission of August 27, 1997.
  8. By letter dated February 16, 1998, Deputy Regional Permit Administrator Charles Hamilton declined the permittee's September 15, 1997 request based upon staff's determination that it did not comply with the Tidal Wetland Land Use Regulations contained in Part 661 of 6 NYCRR. Specifically, staff found that the proposed lengthening of the dock would cause adverse impacts to the benthic community by adding an additional 80 square feet of shaded area. In addition, Mr. Hamilton noted in his letter that the wave break and piles would decrease velocities in the area leading to increased sedimentation adjacent to the dock and smothering of benthic dwelling organisms. This anticipated sedimentation would reduce water depth potentially necessitating dredging in the future. Staff also found that the proposed increase in length of the dock would cause a navigational hazard. Based upon the water depth of 2.5 feet of mean low water that was indicated on the previous plans submitted by the applicant for this same structure, the staff determined there was no need for this extension.
  9. By letter dated January 22, 1998, Environmental Analyst Parris advised Ms. Gerbino that Mr. Perretti was again requesting a revision to the permitted project. This time the permittee was requesting a wave break without extending the length of the dock and permission to install two additional mooring pilings on the west side of the pier. The project description that accompanied this letter stated that the purpose of the modification was safety - the boat could be docked alongside the pier, perpendicular to shore rather than at the seaward end of the pier, parallel to the shore. And, the purpose of the wave break was described as diminishing wave energy on the boat during bad weather. While there is no explanation in this submission for this change, sheet one of these plans no longer contained a notation regarding a water depth of 2.5 feet off the seaward edge of the dock. Neither the original submissions for the permit nor the revised plans indicate a request for the construction of eighteen ice pilings as part of the dock project.
  10. By letter which appears to be dated April 15, 1998, Deputy Regional Permit Administrator Hamilton informed Mr. Perretti that his request to modify the permit was granted and he was authorized to install a 40-foot wave break on the east side of the pier and to install two additional mooring piles. The bottom of the wave break was required to be located a minimum of two feet above the bay bottom. Mr. Hamilton also notes in this approval that all other terms and conditions remain as written in the original permit.
  11. On or about November 10, 1998, Mr. Hamilton accompanied Mr. Christfried Arfsten of DEC and members of the Town of Southampton Trustees on a site visit that included an inspection of the Perretti dock. At that time, Mr. Hamilton advised Mr. Perretti that the wave break had not been constructed properly because it was located in the bay bottom and therefore was not in compliance with the permit modification issued April 15, 1998. Mr. Hamilton advised Mr. Perretti that this wave break would have to be altered accordingly.
  12. In response to Mr. Hamilton's instructions, Mr. Perretti had the wave break reconstructed so that it was in compliance with the April 15, 1998 amendment. On or about December 18, 1998, DEC staff members went to the site and verified that the wave break had been reconstructed in accordance with the amendment and Mr. Hamilton's directive. By mail, Mr. Perretti advised Mr. Hamilton of this work.
  13. On November 5, 1999, in response to complaints received by the Department from the Town of Southampton and a resident, Mr. Hamilton and Mr. Christfried Arftsten, a marine resource specialist with Region 1, went to the Perretti dock and took measurements of the water depths at low tide at 12:15 p.m.-13:05 p.m. Mr. Arftsten and Mr. Hamilton timed their visit to coincide with low tide conditions as indicated on a chart that staff obtained from a computer service called TideMaster. Based upon the tide chart for the month of November 1999, the highest low tide was 1.2 and the lowest low tide was -0.8 leaving the low tide for November 5 of 0.2 in the middle of the tidal range for this month. These staff members found that the depth of water adjacent to the pier was much less than what was reported in the 1997 Perretti application. For example, at a point thirty feet from the seaward end of the dock, the staff found six inches of land above water while the permittee had noted that there was a foot and a half of water. Where the August 1997 Perretti application stated there was 2.5 feet of water - at the eastern end of the pier - the staff found a water depth of two inches. Areas that the permittee had noted as below a foot and a quarter to a foot and a half of water were found to be above low water and exposed by several inches. Staff found on this date the apparent low water mark to be at a location approximately 114 feet farther off shore from the demarcation submitted in the plans to the Department by the permittee. In the areas that were 50-60 feet north and south and offshore of the dock, the staff noted similar conditions in terms of water depth, type of substrate, compaction, and organisms growing on rocks but did not record these observations or measure the water depths at these locations. It was also during this inspection that staff noted the presence of the ice pilings.
  14. Robert Herrmann, a coastal management specialist who works for En-Consultants, Inc., investigated water depths adjacent to Mr. Perretti's dock on December 11, 1998 at 8:30-8:45 in the morning. His measurements are at variance from both those submitted with the Perretti application in 1997 and those of staff taken in November 1999. Where the August 1997 application measurements indicate two feet of water at the end of the dock, in December 1998, Mr. Herrmann found a depth of one foot two inches. Where in two locations (in 1997) the permittee had indicated there was 1.5 feet of water depth, in December 1998, Mr. Herrmann found six and ten inches of water respectively. In these locations, in November 1999, staff had found six and three inches of land above water, respectively. Where the applicant had noted one foot of water (in 1997), in November 1999, the staff found zero inches of water and Mr. Herrmann found nine inches of water. On this same date in December 1998, Mr. Herrmann took water depth measurements approximately 60 feet north of and parallel to the dock in order to attempt to ascertain pre-construction water depths. Parallel to the end of the dock at this location, he found a water depth of one foot, ten inches. This is parallel to the location near the end of the dock where he found one foot two inches and where in 1997, Ms. Parris had noted a depth of two feet.
  15. There are a number of factors that influence water depth - the tides which are themselves affected by lunar phases, time of day, and weather - as well as natural and manmade structures that occur at a given site. These factors are in a state of flux. In addition, given the variability of these characteristics, different locations on a shoreline may or may not have similar water depths.
  16. Mr. Perretti has spent between forty-five and fifty thousand dollars on the construction of the dock. He had built a custom motor cruiser comprised of wood and fiberglass. The boat has a tunnel drive so that the propeller does not have contact with the bay bottom and the boat draws 1'9" of water compared to a conventional boat of this size that would draw 4'6" of water. The boat is designed for shallow waters but when docked, at times, does sit on the bottom of the bay.
  17. Shinnecock Bay is shallow with water depths of generally less than 10 feet below mean low water. It is one of three major protected, shallow, coastal bay areas on the south shore of Long Island and is one of the largest estuarine ecosystems in the State and is protected as such under the Long Island South Shore Estuary Reserve Act of 1993. It is used as over-wintering habitat for waterfowl including scaup, brant, black ducks, red-breasted mergansers, buffleheads, goldeneye and others. In addition, marine finfish, shellfish and other wildlife use this area. The bay also serves as a nursery and feeding area for bluefish, winter flounder, summer flounder, scup, weakfish, tomcod, blue claw crab, as well as a number of forage fish species. Wildlife that use the fishery resource for their own survival include harbor seals, least tern and common tern. The bay is also inhabited by hard clams, soft clams, bay scallops, and bank mussels and much of the waters including the area of the subject site are rated SA - certified for commercial shellfishing.
  18. To conserve this habitat, water quality must be safeguarded and oil spills, excessive turbidity, sedimentation and waste disposal must be minimized. Filling, dredging, sewage disposal from boats, and construction of docks, piers, bulkheads in undeveloped areas will negatively affect these resources through the loss of valuable habitat.
  19. The construction and maintenance of the Perretti dock and wave break have resulted in the buildup of an uncertain quantity of sand around the dock structure. Mr. Hamilton did not find that there were any environmental conditions that would account for the differences in water depth between the observations of staff and those that are recorded in the permit application. With respect to the jetting activity used to install the pilings, staff calculated a maximum change in depth of water would be four inches. Due to the shallow water depths just offshore of the pier, the permittee's vessel will hit the bay bottom at low tide, causing further compaction of the sediment and resulting in damage to the marine habitat in that vicinity. Vessels going to and from the dock will also damage the vegetation that is growing in this area. While the removal of any part of this dock including the ice pilings will also create a temporary disturbance to the benthic community, over time, this ecosystem will be restored. And the removal of the ice pilings would mitigate, to some degree, the sedimentation impacts associated with these structures.
  20. Other docks are located on Shinnecock Bay and at least one - the Burgess dock - is within the general vicinity of the Perretti structure - approximately 1500 feet south of the Perretti site. Although the plan contained in the Burgess dock permit application indicates water depths exactly like those at the Perretti dock, it is virtually impossible that these would be accurate given the changes in the bay bottom and the variations in vegetation.
  21. The Department has preliminarily rejected the application of Silverstein for a dock located several hundred feet south of the Perretti location based upon the low water depth of two feet that staff found 200 feet off shore. At this same location, at another time, staff found a water depth of 1'1". On different occasions, Mr. Herrmann found a water depth of two feet five inches where the end of the proposed Silverstein dock would be - 150 feet seaward.

DISCUSSION

Essentially, the staff's proposed revocation of John Perretti's permit is based upon its view that he has exceeded the scope of the issued permit and that the information contained in his application was "materially false or inaccurate" and therefore, the permit was improperly issued. Section 621.14(a) of 6 NYCRR provides the grounds for modification, suspension or revocation, inter alia, as "materially false or inaccurate statements in the permit application or supporting papers;" and "exceeding the scope of the project as described in the permit application."

With respect to the eighteen ice pilings, these structures do not appear on any of the plans submitted in support of Mr. Perretti's application. While Mr. Bressler attempted to establish that the cross-section drawing of the pier plans could represent three pilings, there is no indication on the plans that these structures are proposed. And, because sheet 2 of the plans is identified as a "section through proposed fixed dock," logic would dictate that one is viewing one side of the proposed structure and that therefore, each piling drawn actually represents two. These additional structures cover littoral zone wetlands thus affecting the benthic community. They also contribute to a decrease in the wave velocities and increased sedimentation. Mr. Perretti stated his agreement to remove the ice pilings and given that they are not within the scope of the permitted project, such action should be taken.

With respect to the dock itself, while it is apparent that Ms. Parris did not submit field- obtained data to the Department as part of the application for this dock, there is no means by which staff, the permittee, or I can glean what the water depths were at the time of the submissions.(1) In 1999, staff found the water depths to be much shallower than what Mr. Perretti submitted in the 1997 application. However, that was based upon only one investigation apparently at a time when water depths were particularly low. Mr. Herrmann, who made a credible witness, found water depths in 1998 that differed from both the submissions of Mr. Perretti and those found by staff. Mr. Herrmann discovered water depths sixty feet north of the dock that were deeper than those he found at the dock perhaps indicating pre-construction conditions. At the hearing, Mr. Perretti reported that water depths did get very low at his dock twice a year.(2) Mr. Hamilton represented that there was no way that the difference in depths noted by staff could be explained by accretion. To support this argument, he calculated that approximately four inches of sand would accumulate based upon the driving of the pilings for the dock. Assuming these figures were correct, they do not take into account the accumulation of sand caused by the maintenance of the structure as predicted by Mr. Hamilton in his February 16, 1998 letter. And, as repeatedly pointed out by Mr. Bressler, Mr. Hamilton denied Mr. Perretti's first amendment to his permit precisely due to the potential for increased sedimentation that would reduce water depth and require future dredging.

I conclude from the evidence that while overall the bay is shallow, the water depths fluctuate due to a number of factors cited above. I cannot therefore conclude that the one set of measurements taken by staff are typical of the water depths at the dock. Nor is it clear that the water depths at this location at the time Mr. Perretti's application was submitted were not significantly greater than what they are today. Therefore, I cannot find that materially false or inaccurate information was submitted to staff in support of this application that would provide grounds for a revocation of the permit.(3)

Staff vigorously urged the removal of the dock citing in addition to the criteria in Part 621 the requirements in Part 661 and Article 25 of the ECL. Staff has recently denied a permit application for a dock in Shinnecock Bay specifically due to shallow water depths and the potential for harm to vegetation and benthic habitat. In Matter of the Application of Carol and Richard Liebner, Commissioner's Decision, March 16, 2000, Commissioner Cahill cited to the criteria in Part 661 in denying a permit application with respect to a proposed dock (and in doing so reversed the ALJ's ruling) based upon shallow waters. In his letter of February 16, 1998, in which he declined Mr. Perretti's application to amend his permit to extend it twenty feet and add the wave break, Mr. Hamilton stated that the wave break would "cause a decrease in the current velocities . . .which will lead to increased sedimentation adjacent to the dock which will cause smothering of benthic organisms. The sedimentation will also reduce . . . effective water depth which may require you to dredge. . .thereby impacting additional benthic habitat." Given the shallow water depths in this area, I am convinced that the dock, wave break, and Mr. Perretti's boat will cause harm to the benthic environment and the vegetation in this shallow area.(4) However, these matters should have been addressed prior to staff's approval of the permit application and the construction of the dock. While the State cannot be estopped from carrying out its statutory duties, where the permittee went through the permit process and gave the staff the opportunity to scrutinize the project, there is not a basis at this time to revoke the permit based upon the evidence in this record. The very impacts Mr. Hamilton predicted would occur have likely occurred thus contributing to the shallower water depths.

CONCLUSION

Because the eighteen ice pilings exceed the scope of the Perretti permit application, I recommend that these should be removed as soon as possible in accordance with protocol and a schedule devised by staff. I recommend that the dock, however, may remain because there is not clear evidence that the water depths provided in the original application did not reflect those in existence at the time. Therefore, there is not a sufficient basis for revocation of this permit.

Dated: Albany, New York
January 5, 2001

1 The permittee testified that he observed Town of Southampton Trustee Warner take measurements where his dock is now located indicating depths of about 2.5 feet. He also testified that he also took measurements "exactly [in] the same location" and duplicated this result. Transcript, p. 424. I did not find Mr. Perretti's testimony persuasive as there was no production of any contemporaneous record of these measurements, Trustee Warner did not testify, and it is self-serving.

2 I have not relied upon the information presented in the exhibits relating to other docks to determine what the depths are and were at the Perretti site - given the potential for variability of water depths based upon site specific conditions, conditions 1500 feet away for example are irrelevant. However, evidence submitted by the parties with respect to the Silverstein dock application is indicative of variation of measurements at the same location depending upon when and who takes them. See, e.g., Exs. 40 and 41.

3 In coming to this conclusion, I have not relied upon Mr. Bressler's argument that because the plan annexed to the January 22, 1998 submission of the permittee for an amendment to the permit no longer contained the 2.5 feet water depth indication, Mr. Perretti was no longer bound to that representation. I agree with staff that DEC issued a permit to Mr. Perretti based upon the data that was submitted prior to the September 1997 approval and that to the extent amendments were requested, staff was bound only to review specifically those requests and not re-visit the data that been previously submitted. If Mr. Perretti was also attempting to alter that data based upon a change in conditions, he should have brought that to the staff's attention.

4 And in coming to my conclusions, I am not considering evidence that other docks have been constructed on Shinnecock Bay. As noted by the Commissioner in Liebner, "[t]he existence of other docks . . . is not dispositive . . ." "Permit issuance determinations are fact-specific decisions . . ." "Moreover, the cumulative impact of permitting decisions for structures like this one . . . is a reasonable factor for Staff to consider." Clearly, if the Perretti dock is to stay, the staff will have to seriously consider cumulative effects prior to any future permitting in this area.

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