Taylor, Ronald and Joanne - Order, October 18, 2000

Order, October 18, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 15 of
the Environmental Conservation Law ("ECL") of the
State of New York by
Ronald and Joanne Taylor
52 Sherwood Trail
Saratoga Springs, New York 12866,

ORDER

DEC Case No.
R5-2311-99-01

Respondents.

WHEREAS:

1. Pursuant to a Notice of Hearing and Complaint dated March 18, 1999, an administrative enforcement hearing was held before Administrative Law Judge ("ALJ") Robert P. O'Connor. The Department of Environmental Conservation (the "Department") appeared by Christopher A. Lacombe, Esq., Region 5 Attorney in the Department's Ray Brook office. The Respondents appeared by Kevin M. Young, Esq. and David C. Brennan, Esq., of the law firm Young, Sommer ... LLC, Executive Woods, Three Atrium Drive, Albany, New York 12205.
2. Upon review of ALJ O'Connor's Hearing Report (copy attached) and the record in this proceeding, I concur with its Findings of Fact, Conclusions and Recommendations, subject to my comments below. The Report establishes that the Respondents, in May 1998, were responsible for the placement of fill materials (concrete, in the construction of a seawall) below the mean high water level of Lake George, a navigable water of the State, in contravention of the terms of the permit which had been issued for such seawall, located on Waters Edge Drive in the Rockhurst section of the Town of Queensbury, Warren County, New York. The placement of such fill materials in the lake beyond the location specified in the Respondents' permit was in violation of the provisions of Environmental Conservation Law ("ECL") §15-0505.
3. In determining the appropriate penalty for the committed violation, I have taken into account the circumstances of this case as established in the hearing record. The record establishes that the placement of concrete in the lake occurred with the knowledge and consent of the Respondents, when during the construction of a seawall, difficulties were encountered which caused Respondents to deviate from the plans approved by the Lake George Park Commission ("LGPC") in issuing the permit for the seawall and related repair of the cribwork supports for an existing dock. When obstructions prevented the placement of forms in such a manner as to allow for the construction of a new ten inch wide poured concrete seawall immediately adjacent to and flush with an existing deteriorating seawall at Respondents' property, rather than stopping the work and seeking modification of their permit, Respondents continued placement of the forms and pouring of concrete farther into the lake than allowed in the LGPC permit. As constructed, the seawall now extends into the lake two feet, two inches from the old seawall at its north end and six feet, three inches from the existing seawall at its south end.
4. The environmental consequences of this violation of ECL §15-0505 are that the productive cobble habitat of some 220+ square feet of the lakebed of Lake George has been eliminated from use by various aquatic species, but particularly as a spawning and nursery area for numerous fishes which inhabit the lake. Furthermore, Respondents' new seawall is poorly constructed and precariously situated, such that within one month of its construction, it exhibited a large crack running from the top to the bottom of the poured concrete face of the wall, and portions of the wall were observed to be leaning lakeward. If the seawall rapidly deteriorates, which is likely, due to a lack of support at its base and failure to anchor the wall to the shore, its collapse will destroy additional aquatic habitat. However, beyond these immediate and potential consequences in front of Respondents' property, other property owners in the intensely developed and heavily used southern basin of Lake George may point to Respondents' seawall as an example of the type of project which the Department and/or the LGPC will approve, and attempt the same type of construction, resulting in the consequent cumulative destruction of additional valuable aquatic habitat in the lake.
5. In view of all the foregoing, I therefore concur with ALJ O'Connor's penalty recommendation, as well as his recommendation that the entire concrete seawall be removed from the lake and that the bottom area which has been disturbed by the construction of the seawall be restored as closely as possible to its pre-existing condition.

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

1. Respondents Ronald and Joanne Taylor are found to have violated ECL Article 15 and are assessed a civil penalty in the amount of Seven Thousand Five Hundred Dollars ($7,500), which is to be due and paid in full to the Department within 30 days of service of this Order.
2. Respondents Ronald and Joanne Taylor are directed to cease the violation and to restore the affected portion of the lake bottom of Lake George in front of their property located on Waters Edge Drive in the Rockhurst section of the Town of Queensbury, Warren County, New York to its condition prior to the violations, insofar as that is possible, within a reasonable time, and under the Department's supervision. In this regard, Respondents are directed to submit to the Department Staff, within 60 days of the service of this Order, an approvable plan for the complete removal of the constructed concrete seawall and restoration of the affected lake bottom area, to include:
   1. All concrete fill materials are to be removed until the natural lake bottom is clear of all residue from the seawall construction. All removed fill materials are to be legally disposed of.
   2. The pre-existing condition of the lake bottom in the area of the violation is to be re-established.
   3. Removal of the fill material and restoration are to be completed in accordance with a schedule to be determined by the Department Staff.
   4. The Department's Region 5 Staff and LGPC Staff are to be notified in writing prior to commencement of the seawall removal and remediation work, and Respondents are to perform the work specified herein as directed by the Department Staff.
3. Such ordered remediation of the site is without prejudice to Respondents' submission of a new application for construction of a seawall in conformance to the original application, i.e. - immediately adjacent to and flush with the old deteriorating seawall, and in compliance with the terms and conditions of the permit which was issued on July 17, 1997 (which expired July 17, 1998), or, in the alternative, submission by the Respondents of an application for a modified or different project. Any new application by Respondents for seawall construction must incorporate detailed plans prepared by a contractor who is experienced in the construction of seawalls in Lake George and/or a licensed professional engineer. If a new seawall is proposed by Respondents to be constructed in conjunction with any dock work in Lake George, the application should be submitted to the LGPC. If a new seawall is proposed by Respondents to be a stand alone project, the application should be submitted to the Department's Region 5 Staff, pursuant to the terms of the Memorandum of Understanding between the Department and the LGPC. Should Respondents receive approval for a future seawall construction project at their Lake George property, they shall retain the services of a contractor who is experienced in the construction of seawalls in Lake George to undertake and complete such a project.
4. All communications between Respondents and the Department concerning this Order shall be made to the Regional Director, New York State Department of Environmental Conservation, Route 86 - P.O. Box 296, Ray Brook, New York 12977-0296.
5. The provisions, terms and conditions of this Order shall bind the Respondents, their officers, directors, partners, agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondents.

For the New York State Department
of Environmental Conservation

/s/
By: John P. Cahill, Commissioner

Albany, New York
October 18, 2000

To: Kevin M. Young, Esq.
Young, Sommer ... LLC
Executive Woods
Three Atrium Drive
Albany, New York

Christopher A. Lacombe, Esq.
Regional Attorney
Region 5, Division of Legal Affairs
New York State Department of
Environmental Conservation
Route 86 - P.O. Box 296
Ray Brook, New York 12977-0296

Michael P. White
Executive Director
Lake George Park Commission
P.O. Box 749 - Fort George Road
Lake George, New York 12845

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violations of Article 15 of
the Environmental Conservation Law ("ECL") of the
State of New York by

Ronald and Joanne Taylor
52 Sherwood Trail
Saratoga Springs, New York 12866,

REPORT
OF THE
ADMINISTRATIVE
LAW JUDGE

DEC Case No.
R5-2311-99-01

Respondents.

Summary

In this Administrative Enforcement Hearing Report, Administrative Law Judge ("ALJ") Robert P. O'Connor finds that Respondents Ronald and Joanne Taylor have violated Environmental Conservation Law ("ECL") Article 15 (Water Resources), Title 5 (Protection of water) by having placed fill (constructed a concrete seawall) below the mean high water level of Lake George, which is a navigable water of the State, in contravention of the terms of the permit which had been issued for such seawall. ALJ O'Connor recommends that the Respondents be directed to file with the Staff of the Department of Environmental Conservation ("DEC" or "Staff") an approvable plan for the restoration of the violation area in Lake George and that Respondents must implement such restoration in accordance with a Department-approved plan. ALJ O'Connor further recommends that Respondents be assessed a civil penalty in the amount of $7,500, which shall be due and payable, the seawall which is the subject of the violation shall be completely removed and the lakebed in the violation area shall be satisfactorily restored in accordance with the aforementioned Department-approved plan.

Background

On June 12, 1998, the Lake George Park Commission ("LGPC") staff referred to the Department's Region 5 office the file concerning a seawall installed in Lake George by the Respondents. The referral letter, while not specific regarding the alleged violation, speaks of the need for removal of the seawall, measures to be taken to prevent additional fill materials from entering the lake and the recommendation for a fine of between $2000 and $2500, with $1500 to $2000 of that being suspended, pending successful removal of the seawall with no further apparent violations. The referral letter contemplated the matter would be settled semi-formally by means of an Order on Consent.

The record developed in this matter indicates that Department and LGPC staff members visited the site of the alleged violation on several occasions in 1998, and that during 1998 and 1999, members of the Department Staff met with the Respondents and their representatives on at least two occasions in the course of informal discussions to attempt resolution of the matter. The Staffs' resolute stand that the underpinning of any settlement agreement was that the seawall constructed by the Respondents in May 1998 had to be removed apparently proved to be a condition which was unacceptable to the Respondents and caused the settlement negotiations to fail.

Thus, the instant formal action began with the Department Staff's service of a Notice of Hearing and a Complaint, both dated March 18, 1999, upon Respondents Ronald and Joanne Taylor. The Respondents, through their attorney, Mark Schachner, Esq., of the law firm Miller, Mannix & Pratt, P.C., submitted an Answer dated July 2, 1999, basically denying the charges and asserting four affirmative defenses. The Staff submitted its Statement of Readiness for Adjudicatory Hearing on September 16, 1999, and the hearing was scheduled to commence on November 16, 1999 in the Department's Region 5 office located at 232 Hudson Street, Warrensburg, New York.

On November 16, 1999, the presiding ALJ, the assigned Department Staff and witnesses and Respondent Ronald Taylor, with his daughter and prospective son-in-law, were present in the Department's Warrensburg office at the prescribed 1:00 P.M. starting time for the hearing. Mr. Taylor then stated that as of that morning he was no longer represented by counsel, and consequently, he requested an adjournment of the hearing in order to retain another attorney. With the concurrence, albeit reluctant, of the Department Staff, the adjournment was granted.

Subsequent to the Respondents securing another attorney to represent their interests in the instant case, discovery was completed and the administrative enforcement hearing in this matter was rescheduled. Accordingly, the adjudicatory hearing to consider the alleged violations was convened before ALJ O'Connor, of the Department's Office of Hearings and Mediation Services, on January 27, 2000, in the Department's Warrensburg office, commencing at 9:45 A.M. and concluding at 6:45 P.M. The Department Staff was represented by Christopher A. Lacombe, Esq., Region 5 Attorney in the Department's Ray Brook office (Route 86 - P.O. Box 296, Ray Brook, New York 12977-0296), and the Respondents were represented by Kevin M. Young, Esq. and David C. Brennan, Esq., Young, Sommer ... LLC, Executive Woods, Three Atrium Drive, Albany, New York 12205.

Called as witnesses for the Department Staff were Molly Gallagher, Environmental Analyst and Deputy Permit Administrator for the Lake George Park Commission; Lieutenant Joseph H. Schneider, Supervising Environmental Conservation Officer, in the Department's Division of Law Enforcement, currently assigned as the Director of Law Enforcement for the Lake George Park Commission; William B. White, Senior Aquatic Biologist, in the Region 5 Bureau of Habitat, Division of Fish and Wildlife; and Joseph C. Prall, Environmental Analyst and Deputy Permit Administrator in the Region 5 Division of Environmental Permits.

The Respondents called as witnesses Ronald J. Taylor, co-owner with his wife, Joanne Taylor, of the property on Lake George which is the subject of the instant proceeding, and Beau Milo, Mr. Taylor's prospective son-in-law.

In all, 27 Exhibits were received in evidence.

Both the Department Staff and the Respondents submitted post-hearing closing briefs which were received on March 6, 2000, following which the record of the hearing was closed.

Department Staff's Position

The Department Staff/LGPC Staff assert that on May 8, 1998 the Respondents, at property which they own on Waters Edge Drive in the Rockhurst section of the Town of Queensbury, Warren County, New York, in contravention of the terms of their permit, allegedly excavated soil below the mean high water level of Lake George, a navigable water of the State, in the course of constructing a seawall in a manner which was not permitted by said permit. Said seawall allegedly extended two feet two inches from the old existing seawall into the waters of Lake George on the western bounds of the property and six feet three inches from the old seawall into the lake on the eastern bounds of the property. During the construction of the seawall, the Respondents allegedly placed fill (concrete) and/or other material, below the mean high water level of Lake George. At the hearing and in its closing brief, the Staff recommended a $7,500 civil penalty and removal of the entire constructed seawall.

Respondents' Position

Respondents Ronald and Joanne Taylor contend that the LGPC Staff erroneously assumed jurisdiction for issuance of a permit which properly should have been under the jurisdiction of the Department Staff. Thus, the Respondents contend that they have been deprived of the benefit of having the Department Staff experience in assessing the potential impacts of seawall construction and of the Department Staff "standard activity permit process ('SAPP')," which they contend would have allowed more leeway in the construction of a seawall farther into the lake from the mean high water level than allowed by the LGPC. Further, the Respondents contend that the Department Staff failed to meet its burden of proof with regard to the elements of the Protection of Water statute in ECL §15-0505, particularly in the Staff's contention that Lake George is a navigable water of the State. The Respondents contend that the Department Staff's calculation of any penalty to be assessed is flawed, and that the requirement for removal of the entire constructed seawall is ill conceived and unnecessary. Respondents seek dismissal of the Complaint, no assessment of any penalties and that the seawall be allowed to remain in place and be completed without further intervention.

FINDINGS OF FACT

The Site and Requested Permit

1. Respondents Ronald and Joanne Taylor own real property located on Waters Edge Drive in the Rockhurst section of the Town of Queensbury, Warren County, New York. The Taylor property is identified on Tax Map No. 8, Section No. 16 for the Town of Queensbury as parcel 1-10, situated on west shore of Warner Bay, which is located at the extreme southeast corner of Lake George.
2. The Respondents purchased their lakefront property in approximately 1996. Due to the deteriorated condition of portions of the shorefront accouterments, Mr. Taylor, in June and July of 1997, filed application documents with the LGPC to: 1) Repair concrete retaining wall; Replace with new wall; 2) Remove existing steel boat house damaged by ice or wind and replace with wooden boat house; and 3) Re-stack cribbing under L-shaped dock. Accompanying the application form were diagrams depicting the work which Mr. Taylor proposed to do.
3. The diagram showing the "Proposed Replacement of Concrete Retaining Wall Approx 70 l.f." (the application lists the total lake frontage as 54.16 feet) shows the Respondents' proposal to install a 10 inch concrete wall flush with the waterside face of the existing crumbling concrete retaining wall on the property. The diagram provided by the Respondents does not show any space between the existing deteriorated seawall and the proposed new retaining wall. The diagram indicates that upon completion of the new seawall, various "boulders" in the lake lying several feet in front of the seawall would be relocated to immediately in front of the new seawall. The diagram, although not drawn to scale, also shows the lake water level as being several inches below the top of the proposed seawall, with a more extensive portion of the seawall being below the water level.
4. The Respondent's diagram for the "'Proposed Replacement' of Existing Boat House" shows the reconstructed boat storage structure as being built on cribbing placed on the lake bottom and depicts the structure as being attached to the retaining wall at the property shorefront. The "boathouse" referred to in this application is in actuality a metal, open frame structure, with a corrugated metal roof and some planking on one side as a walkway, under which a boat was intended to be stored.
5. A diagram entitled: "Overview: Dock, Boat Storage, Concrete Retaining Wall" on the property's waterfront shows an existing dock under which the Respondents proposed to repair the cribbing. The diagram does not show the dock being directly attached to the seawall, but rather extending over the seawall onto the upland shore area.
6. On July 17, 1997, Molly Gallagher, Environmental Analyst and Deputy Permit Administrator for the LGPC, following a site inspection, issued "Permit No. 5234-23-97 Excavation/Fill" to Mr. Taylor authorizing the "Repair and/or replacement of existing cribs and reconstruction of 54 linear feet of seawall as shown on the plans attached as Schedule A and made part of this permit." Schedule A, specifically permit pages 4 and 5 of 6, are the diagrams submitted by Mr. Taylor, respectively, for the seawall replacement, noted in Finding No. 3 above, and for the under-dock cribbing repair, noted in Finding No. 5 above. The overview diagram was altered with "Wite-Out" to eliminate the depiction of the boat storage structure referred to in Finding No. 4 above, so as to conform to the activities authorized by the permit, which did not include the replacement of the boat storage structure. The permit had an expiration date of July 17, 1998, one year from the date of issuance.
7. The LGPC regulations in 6 NYCRR §645-2.1(ak) "Mean high-water mark," and the Department's regulations for implementing ECL Article 15, Title 5 in 6 NYCRR §608.11(a) "Mean high water elevations," define the mean high water mark or elevation for Lake George, respectively, as being 320.2 feet/320.20 feet above mean sea level (1912 National Geodetic Vertical Datum). The LGPC references a United States Geological Survey ("USGS") gauge at Roger's Rock on the northwestern shore of Lake George to provide daily lake level readings. The daily lake level readings, measured in feet, are incorporated in guidelines in a LGPC-prepared document entitled "Determining the Position of the Mean Low & Mean High Water Marks," which enable a person to determine the level of the lake on any day with reference to either the mean low or mean high water marks established in the regulations. On July 17, 1997, the date on which the permit was issued, the Rogers Rock gauge reading was 3.69 feet. Using the LGPC guidelines, the reading of 3.69 feet on the Rogers Rock gauge corresponds to a measure of approximately 5.3 inches below the mean high water mark for Lake George, or expressed in another way, the mean high water mark (320.20 feet above mean sea level) on July 17, 1997 was 5.3 inches higher than that day's water level.
8. The LGPC permit was issued to Mr. Taylor pursuant to a September 9, 1992 Memorandum of Understanding ("MOU") between the Department of Environmental Conservation and the Lake George Park Commission which formalized the procedures to be followed by the Department and the LGPC in implementing the permit authority which the Department had previously delegated to the LGPC on February 21, 1989 regarding administration of ECL §15-0505 for the excavation of material or placement of fill in the waters of Lake George involving the construction of docks or boathouses subject to the jurisdiction of the LGPC under 6 NYCRR Parts 645 and 646.
9. Under "Scope of Delegated Authority," the MOU states, "The activities affected by the delegation are limited to the excavation of material and placement of fill in the waters of Lake George directly related to and necessary for the construction or repair of docks or wharves and boathouses. . . in order for the COMMISSION to address potential access problems and incorporate appropriate permit conditions in conjunction with any required approvals. Applications for all other activities such as retaining walls (not related to dock construction), waterline installations, beach work, shoreline stabilization, or dredging (not related to dock construction) will be submitted to the DEPARTMENT."

The Current Alleged Violation

10. In April 1998, Mr. Taylor made preparations to construct his seawall. As his occupation, Mr. Taylor is in the business of residential home construction and planned to install forms and use poured concrete as the material for the seawall. However, Mr. Taylor never before built a seawall. As a general contractor, Mr. Taylor regularly subcontracts with others for installation of forms and pouring of concrete, e.g. - foundation walls. He sought advise and assistance from others who were experienced in using formwork for foundation construction and from a fellow contractor who was working on a concrete pour for a bridge over the Hudson River in order to refine his plans and learn the proper procedures to prevent water pollution during such construction within a water body.
11. In approximately April 1998, Mr. Taylor also sought guidance from LGPC staff member Molly Gallagher regarding appropriate construction techniques for seawalls. He described his plans, indicating the use of forms and a need to offset the forms into the lake from the existing seawall to allow for the removal of the forms after the concrete cured. Mr. Taylor and his prospective son-in-law, Beau Milo, claim that Ms. Gallagher advised that an offset distance between the existing and new seawalls of between 18 and 24 inches would be allowable. Ms. Gallagher, while not recalling the specific meeting and conversation with Mr. Taylor, indicated that, had Mr. Taylor sought a permit modification based upon practical difficulties in constructing the seawall, that an 18 inch to 24 inch leeway in the location of the new seawall from that specified in the original plans might have been allowed.
12. On Saturday, May 2,1998, it being a cold day with the lake water still very cold, Mr. Taylor and the persons assisting him, undertook to install the new seawall. Believing that he had leeway from placing the new wall directly abutting the old seawall, Mr. Taylor and his assistants, among those being his "poured concrete foundation" subcontractor friends, initially began locating the forms 18 inches to 24 inches from the old seawall. In the course of construction, they encountered some problems in anchoring the wall, they found underwater obstructions which prevented them from placing the forms where they wanted them, and they did not have the proper forms to make corners or changes in direction to go around the obstructions. Due to these difficulties, the forms were placed farther into the lake than originally planned, such that the new concrete wall avoided the underwater obstructions. Mr. Taylor used the appropriate filter fabric to prevent siltation of the lake from the upland areas and installed a floating barrier to contain any floating debris which might enter the water. He contracted for the best concrete available for an aquatic environment, a type in which the aggregate would not settle out, and he also contracted for a second ready-mix truck, into which the water between the forms was pumped, in order to prevent contamination of the lake waters by the "gray water." Construction of the seawall was stated during the hearing to be "a five thousand dollar wall."
13. On May 8, 1998 , LGPC Staff personnel, including LT Joseph H. Schneider, Supervising Environmental Conservation Officer, Thomas Wardell, Senior Sanitary Engineer and Roger Smith, Park Ranger, in response to a call from a neighbor that illegal activities were occurring on the Respondents' property, went to the site and observed and measured the seawall which had been constructed in front of the Respondents' property. The 54 foot long concrete wall protruded into the lake a distance of two feet, two inches on its westerly end and for a distance of six feet, three inches on its easterly end, both measurements taken from the lakeward edge of the Respondents' existing seawall (Mr. Taylor measured this latter distance as five feet, ten inches to the outside of the wall). The space between the existing seawall and the landward side of the new concrete wall was filled with water. Some of the forms used to contain the concrete poured for the new wall were still present adjacent to the new seawall. LT Schneider advised Mr. Taylor that the construction of the new seawall appeared to be in violation of the terms of his LGPC permit and requested that no further construction occur on the site until the matter could be resolved. Mr. Taylor indicated at the hearing that in order to complete the new seawall, he still had to somehow tie it in to the shore, and he was going to place rip-rap between the new and old walls to help stabilize the new wall and then cover the rip-rap with sand.
14. The Rogers Rock gauge reading on May 8, 1998 was 3.85 feet, corresponding to a lake water level of approximately 3.5 inches below the mean high water mark for Lake George. As observed by the LGPC staff members on that day, the new concrete seawall installed at the Respondents' property extended below the water level of the lake.
15. After May 8, 1998, LT Schneider and Mr. Taylor had additional meetings to discuss the Respondents' liability for the alleged violation and what the processes would be to resolve the matter.
16. On June 12, 1998, LT Schneider, accompanied by William B. White, Senior Aquatic Biologist on the DEC Region 5 Fisheries Staff, went to the Respondents' property to observe the alleged violation structure. Mr. White noted that, at that time, the wall had a vertical crack approximately in the center of the 54 foot structure. The crack extended from the top all the way to the bottom of the wall, and the sections on either side of the crack were out of alignment by approximately one inch. Additionally, the easterly section of the wall appeared to be tipping lakeward. Mr. White did not observe any evidence of footings, to provide a firm foundation and tie the bottom of the wall into the substrate, having been installed beneath the wall. Mr. Taylor indicated that he had not been able to put down any footings, and had only set the forms on the lake bottom, pushed them into the substrate and then poured the concrete into the forms. Mr. Taylor intended to install turnbuckles, place rip-rap between the two seawalls and then backfill with sand which had been dumped on the upland portion of his property, but did not intend any other method of stabilizing the new concrete wall. At the time, Mr. White also observed that the new concrete wall had already started to pull away from the old existing seawall. Mr. White did not observe any method by which the new wall could be secured to the old existing wall, either by the use of "dead men" (stout timbers or logs used to anchor structures to the shore) or iron tie rods anchored into the shoreline, which would hold the new wall in place. Mr. Taylor claims that the wall was scoured underneath and the crack occurred solely due to his not being able to complete the project to stabilize the new wall.
17. Also on June 12, 1998, LT Schneider referred the case file to Christopher A. Lacombe, the DEC Region 5 Regional Attorney, for prosecution of the case. Assuming that the matter could be quickly resolved without litigation, LT Schneider recommended that the LGPC would seek a penalty of between $2,000 and $2,500, with $1,500 to $2,000 of that amount suspended upon successful completion of the project in conformance with the issued permit (to include complete removal of the new concrete seawall and reconstruction flush with the old seawall as originally proposed) and providing there were no further violations at the site. LT Schneider advised Mr. Lacombe that the new concrete wall had a large crack in it, and that any backfilling behind the wall would likely result in fill entering the lake, as the whole structure could fall over.
18. Mr. Lacombe responded to LT Schneider's letter on June 16, 1998, indicating that he would rely on the DEC Fisheries Staff and the LGPC recommendation for removal of the new concrete wall and reconstruction immediately adjacent to the old seawall, as originally permitted. Mr. Lacombe further stated that a $2,500 penalty, with a suspension of all but $1,000, was reasonable.
19. On July 22, 1998, Mr. Lacombe wrote to the Respondents, indicating the new wall had not been constructed in conformance with the LGPC permit. He indicated that to effect resolution of the matter prior to the commencement of a formal enforcement proceeding, the Department would seek to enter into a Consent Order, in which the Respondents would incur a civil penalty in the sum of $5,000, of which all but $2,000 would be suspended, on condition that the Respondents complete one of three options to remediate the site prior to October 30, 1998. The options included: 1) constructing a new retaining wall in front of and adjacent to the existing seawall, as originally proposed, and then removing the May 2, 1998 concrete wall; 2) pointing up the existing stone/masonry wall, installation of a cap on the wall, removal of the illegal wall and relocation of lake bottom boulders to the base of the repaired wall to break up the wave action; or 3) remove the illegal wall and restore the waterfront to its pre-construction condition.
20. Since July 1998, the Department Staff have held numerous meetings with the Respondents and their legal counsel in attempting to negotiate a settlement of this case. The primary reason for the failure to settle apparently stems from the Respondents' steadfast refusal to remove the new concrete wall, relying on the "18 inch to 24 inch allowable offset" from the original plans to which they believe they are entitled.
21. On November 9, 1999, Department Staff personnel Mr. Lacombe and Mr. White and LGPC personnel LT Schneider and Ms. Gallagher conducted a site inspection from the adjacent Russo property. At that time, there appeared to be additional cracks in the concrete wall and additional settling of the sections of the wall. The wall also appeared to be tipping farther toward the lake.
22. The Respondents concrete wall, as constructed, has eliminated some 220 square feet of productive aquatic bottom area, used as habitat, particularly spawning and nursery area, for numerous species of fish, including sunfish, yellow perch and black bass (Mr. Taylor calculated this area to be approximately 100 square feet). If the wall were to tip over into the lake, an additional portion of the lake's littoral zone would be similarly adversely impacted.

Statutory Provisions

ECL §15-0505 "Protection of navigable waters; excavation or fill; permit" states, in pertinent part, in paragraph 1:

"No person . . . shall excavate or place fill below the mean high water level in any of the navigable waters of the state . . . without a permit issued pursuant to subdivision 3 of this section. For the purposes of this section, fill shall include, but shall not be limited to, earth, clay, silt, sand, gravel, stone, rock, shale, concrete (whole or fragmentary), ashes, cinders slag, metal, or any similar material whether or not enclosed or contained by (1) crib work or wood, timber, logs, concrete or metal, (2) bulkheads and cofferdams of timber sheeting, bracing and piling or steel sheet piling of steel H piling, separated or in combination."

And, in paragraph 3:

"Before granting a permit, a permit renewal or a permit modification pursuant to this section the department shall ascertain the probable effect on the use of such waters for navigation, the health, safety and welfare of the people of the state and the effect on the natural resources of the state, including soil, forests, water, fish, and aquatic resources therein, likely to result from the proposed project or work."

Navigation Law, Article 1, §2, "Definitions" states, in pertinent part, in paragraph 2:

". . . for purposes of the administration of articles three and eleven of this chapter, within the sixth park region, the boundaries of which are described in subdivision six of section 7.01 of the parks, recreation and historic preservation law, 'commissioner' shall mean the commissioner of environmental conservation."

Parks, Recreation and Historic Preservation Law, in the aforementioned subdivision six of section 7.01, states:

"The sixth region shall consist of the counties of Hamilton and Essex and those portions of the counties of Saint Lawrence, Lewis, Oneida, Clinton, Franklin, Herkimer, Fulton, Ulster, Saratoga, Warren, Washington, Greene, Delaware, and Sullivan lying within the Adirondack or Catskill parks . . ." (emphasis added).

Navigation Law, Article 1, §2, "Definitions" states, in pertinent part, in paragraph 4:

"'Navigable waters of the state' shall mean all lakes, rivers, streams and waters within the boundaries of the state and not privately owned, which are navigable in fact or upon which vessels are operated . . ."

Navigation Law, Article 1, §2, "Definitions" states, in pertinent part, in paragraph 5:

"'Navigable in fact' shall mean navigable in its natural or unimproved condition, affording a channel for useful commerce of a substantial and permanent character conducted in the customary mode of trade and travel on water." ". . . to be navigable in fact a lake or stream must have practical usefulness to the public as a highway for transportation."

Navigation Law, Article 1, §2, "Definitions" states, in pertinent part, in paragraph 6:

Navigation Law, Article 3, "Navigable Waters of the State," §31, "Excavation, fill or other modification of water course" reiterates the ECL protection of waters mandate in stating:

"No person . . . shall excavate or place fill in the navigable waters of the state without first obtaining a permit therefor in conformity with the provisions of section 15-0505 of the environmental conservation law."

Navigation Law, Article 3, "Navigable Waters of the State," specifically refers to Lake George as being included as a navigable water of the State in §§33-a, 38 and 39.

ECL §71-1107 provides for criminal liability in paragraph 1 that:

"A violation of section . . . 15-0505, shall constitute a misdemeanor, punishable by a fine of not to exceed ten thousand dollars, or by imprisonment not to exceed one year or by both such fine and imprisonment and, in addition thereto, by a civil penalty of not more than five thousand dollars.

ECL §71-1127 provides for civil liability in paragraph 1 that:

"Any person who violates any of the provisions of, or who fails to perform any duty imposed by article 15 except section 15-1713, or who violates or who fails to comply with any rule, regulation, determination or order of the department heretofore or hereafter promulgated pursuant to article 15 except section 15-1713, or any condition of a permit issued pursuant to article 15 of this chapter, . . . shall be liable for a civil penalty of not more than five hundred dollars for such violation and an additional civil penalty of not more than one hundred dollars for each day during which such violation continues, and, in addition thereto, such person may be enjoined from continuing such violation as otherwise provided in article 15 except section 15-1713."

Discussion

- Respondents' claim that LGPC erroneously assumed jurisdiction; and that DEC should have been the appropriate permitting agency

Since September 9, 1992, there has been in effect a MOU between DEC and LGPC regarding the administration of ECL §15-0505. The purpose of the MOU is to delegate to the LGPC the authority for processing and reviewing applications and issuing permits for certain activities routinely undertaken in the waters of Lake George which were previously subject to the regulatory jurisdiction of both agencies. Prior to the MOU, each agency received applications, conducted reviews and issued permits for the same activities, resulting in inefficiencies at both agencies, as well as the requirement for duplicative efforts on the part of applicants. The terms of the MOU are limited to activities requiring the excavation of material from or the placement of fill in the waters of Lake George, specifically related to and necessary for the construction or repair of docks, wharves or boathouses subject to the jurisdiction of the LGPC.

The MOU expressly identifies several activities, not related to dock construction, the processing of applications for which is retained by the Department Staff. Since applications for "retaining walls (not related to dock construction)" are to be submitted to the Department Staff, conversely, applications for retaining walls which are related to dock construction must be submitted to the LGPC. Applications for the construction of retaining walls in Lake George which are directly related to dock construction are, however, relatively few in number. In the past five years, LGPC has issued only two permits for seawalls in conjunction with dock construction. During that same time period, LGPC issued approximately 400 permits solely for the construction or reconstruction of docks.

The instant application, as proposed by Respondents, involved a lakefront improvement project for both dock repair/reconstruction, i.e. - crib work under the existing L-shaped dock and replacement of a deteriorated seawall, as well as replacement of a boat storage facility which was not included as part of the project ultimately permitted by the LGPC. Based upon a review of the application documents, as well as an on-site inspection, the LGPC Staff believed that the seawall proposal constituted a minor replacement related to dock construction, i.e. - the repair of the crib work supporting the existing dock. Accordingly, and since the Respondents had applied to undertake both parts of the project concurrently, the LGPC Staff assumed jurisdiction for the seawall part of the project. The LGPC Staff had the option of referring Respondents to the Department Staff for a DEC permit for the seawall, or seeking assistance from the Department Staff in processing the application, but based upon their assessment of the project, the LGPC Staff did not consider it necessary to request assistance from the Department Staff in this matter. Such a decision was fully in accord with the terms of the MOU.

Based upon the experience gained in many years of issuing permits pursuant to ECL Article 15, the Department Staff has developed specifications for various types of construction projects in an aquatic environment. The LGPC has adopted the DEC specifications for three different sets of conditions relating to various types of dredge/fill projects and a separate set of special conditions which are applicable to the pouring of concrete for projects which are conducted below the mean high water mark of Lake George. In the instant case, the Taylor permit contained the LGPC conditions (the DEC specifications) for both crib work and poured concrete. With respect to the appropriateness of the conditions which were imposed upon Respondents by the terms of the LGPC permit, the record indicates that the LGPC permit conditions were substantially identical to requirements which the Department Staff might have imposed, although, with respect to the basic design of the seawall, the Department Staff would have additionally required the Respondents to install footings to secure the seawall to the lake bottom and deadmen or tie rods to anchor the seawall to the shoreline.

On the basis of the information which Respondents provided to the LGPC, it was reasonable that the LGPC Staff processed the application as they did, without referral to the Department Staff. The project proposed by the Respondents was well within the jurisdiction of the LGPC.

- Respondents' claim that they were deprived of the Department Staff expertise in evaluating seawall proposals under a "standard activity permit process" ('SAPP'), which would have allowed them greater leeway in placing the seawall farther into the lake than was allowed by the LGPC Staff

The Department Staff employs a process, termed "standard activity permit process" ('SAPP'), by which several different types of generic projects have been previously analyzed for their potential impacts, and a standard set of conditions has been developed as being applicable to each of those types of projects. If a proposal fits within the parameters which have been developed by the Department Staff, an applicant receives a permit subject to the standard conditions which have been determined to be appropriate for similar such projects. Seawalls are among the types of projects for which the SAPP may be appropriate.

In permitting matters, both the LGPC Staff and the DEC Staff are empowered to use administrative discretion in their review of projects. In waterfront projects, for example, the discretion is based upon what is reasonable and necessary to complete the proposed project and still protect the shoreline and avoid damage to the natural resources of the water body. Because every project is different and presents a unique set of circumstances, there is not a "one size fits all" set of rules which determines what is reasonable and necessary.

In the case of seawalls in Lake George, the Department Staff has determined that the SAPP is appropriate for projects which do not extend farther than three feet into the lake and which, from a technical standpoint, can meet the Department's special conditions for seawalls. There are distinctions, however, between projects which must, for various reasonable and necessary technical reasons, extend up to three feet into the lake, and a blanket authorization to extend all projects up to three feet into the lake.

The LGPC Staff has, in its exercise of discretion regarding seawall proposals, determined that it may allow an 18 inch to 24 inch deviation from approved plans if circumstances dictate such an alteration is reasonable and necessary to complete the project. However, such a deviation will only be approved when an applicant comes before the LGPC with a justification for the deviation from the approved plans. This deviation from approved plans is not, as Respondents suggest, an automatic allowable leeway, margin of freedom, tolerance or variance which may be employed during the actual construction of a seawall. In the view of the LGPC Staff, when Mr. Taylor encountered difficulties in complying with the terms of his permit on that cold Saturday in early May 1998, it would have been appropriate for him to stop all work on the site and subsequently apply to the LGPC for modification of his permit due to the unanticipated obstructions which purportedly prevented him from building the new concrete seawall immediately adjacent to the old one.

It is the LGPC Staff policy that any extension of a seawall project into the lake beyond 24 inches would require a review by the Department's Region 5 Fisheries Staff to determine potential impacts on the littoral zone of the lake. A proposal to the LGPC such as the Respondents' project, as it was originally proposed and subsequently approved, did not necessitate a review by the Department's Fisheries Staff or require any special additional approvals; nor would the Department's Fisheries Staff have required anything different than the LGPC Staff based upon the drawing of the seawall submitted by the Respondents and made a part of the permit issued to them. However, the Respondents' project, as it was actually constructed, would have been subject to additional scrutiny, beyond the LGPC Staff review, by the DEC Region 5 Fisheries Staff.

Respondents attempted at the hearing to liken their LGPC-approved project to a DEC-approved Lake George project for Michael Cantanucci, located on Brayton Lane North, at the southwest end of nearby Harris Bay, Warren County. The Cantanucci project was the subject of a DEC SAPP permit for: "Construction of shoreline retaining walls or bulkheads not extending more than 3 feet lakeward of the Mean High Water Level as shown on the project plans attached to and made a part of this permit." The seawall proposed for the Cantanucci project had two foot wide footings, and the proposed wall itself varied between 18 and 24 inches wide. Joseph C. Prall, Environmental Analyst and Deputy Regional Permit Administrator in the Warrensburg office of the DEC Region 5 Division of Environmental Permits, testified at the hearing that, because the plans for the project did not indicate a lakeward placement of the new seawall of more than three feet from the existing seawall, the Cantanucci proposal fit within the parameters of the SAPP process. Under the procedures used by the Department Staff in the SAPP process, if an applicant applies for a project which fits within the Department's pre-established parameters, the project is considered "reasonable and necessary" and is approved subject to the "boilerplate" or standard conditions which have been established for the specific type of project. However, if an applicant applied for a project which did not fit within the SAPP parameters, the project would be subject to additional scrutiny by the Department Staff.

Respondents also contrasted their project with another DEC-approved SAPP project in Lake George for a Hummel family at a location on North Point Road, off Homer Point Road, in the Town of Bolton, Warren County. The Hummel permit was for: "Repair to an existing retaining wall or bulkhead with no lakeward extension beyond the existing structure as shown on the project plan attached to and made a part of this permit." The Hummel proposal fit within the pre-established parameters for the repair of a seawall or bulkhead and was approved subject to the standard conditions established for that type of project.

Mr. Prall further clarified that with respect to seawalls: "Generally what happens is, the new one (seawall) is constructed immediately in front of the other one, unless the other wall is so - - so demolished either by ice or lack of maintenance, it has to be totally reconstructed, and not - - it is not necessarily in the same footprint." "If it meets certain standards and parameters, it could go through a standard activity permit process." ("SAPP") "Basically means if it doesn't go further out into the lake than three feet and can meet the special conditioning associated with a prior approved review from a technical standpoint, then it would be given that type of situation." "And it - - it's not issued that a person could go out three feet into the lake. It's issued that a person can go out up to three feet in the lake, based on the attached sketches that have been submitted. So sketches could only show the replacement going out a foot into the lake. . ." (emphasis added).

The manner in which all the above mentioned two DEC permits are similar to Respondents' LGPC permit is that in each case, the applicant apparently received a permit for the activity originally applied for. In Respondents' case, the application for the seawall portion of the project was to "Repair concrete retaining wall; Replace with new wall." The diagram provided the LGPC by Mr. Taylor showed the replacement seawall immediately abutting the deteriorating wall, and the diagram was made part and parcel of the issued permit.

Respondents' LGPC permit also contained the following language: - Page one of permit: " By acceptance of this permit, the permittee agrees that the permit is contingent upon strict compliance with the ECL, the Navigation Law, all applicable regulations, the General Conditions specified, and any Special Conditions included as a part of this permit (see attachments)." Also included as General Condition No. 6 of the permit: "Any change or modification in any of the activities authorized by this permit is subject to prior review and approval by the Commission. Any modification of this permit granted by the Commission must be in writing and attached hereto."

Mr. Taylor, although having made inquiries of the LGPC Staff regarding the allowable leeway by which an applicant would be allowed to deviate from the approved plans, never made any attempt to seek a modification of the permit to gain the approval of his modification plans. It appears from this record also that Mr. Taylor never properly researched the design and preparation necessary to construct the seawall for which he made application to the LGPC. For example, the seawall he constructed has no footings and is not properly anchored to the shore. Furthermore, it would seem prudent to determine the existence of any underwater obstructions prior to actually commencing construction; the record in this instance indicates that the obstructions which Mr. Taylor encountered were discovered during the construction activities.

There is no evidence in the record of this proceeding that Respondents were at all prejudiced by having their application processed by the LGPC, rather than through the DEC standard activity permit process. It is likely that had the Respondents' application for a seawall been before DEC, that the Department Staff could have reviewed it pursuant to the SAPP. However, the seawall actually constructed by Respondents exceeded the parameters which would have qualified it for a SAPP permit review, and would still have subjected Respondents to an enforcement action.

- Respondents' claim that the Department Staff did not meet its burden to prove that Lake George is a navigable water of the State

During the hearing, at the Department Staff's request, I took official notice of the Navigation Law. The various sections of the Navigation Law cited above in the Statutory Provisions section unequivocally identify Lake George as a navigable water of the State. Furthermore, the Navigation Law, taken with reference to the Parks and Recreation Law, names the Commissioner of Environmental Conservation as being responsible for the administration of the Navigation Law within that portion of Warren County lying within the Adirondack Park, defined in ECL §9-0101 as including Lake George in its entirety, along with the portion of Warren County along the southeast shore of the lake.

During the hearing, Kevin M. Young, one of the Respondents' attorneys, stated on the record, "I don't think we can prove that Lake George is not a navigable water. I mean, it would be - - O.J. would hire me if I could do that, I suppose." Later, on the record, Mr. Taylor stated: "Technically, yes we're in the lake, so I guess it's navigable waters."

It is clear that the Department Staff met its burden of proof that Lake George is a navigable water of the State. To claim otherwise, particularly in light of Respondents' statements on the record of the instant proceeding, is truly disingenuous.

- Respondents' claim that the Department Staff's penalty calculation is flawed and that the requirement for removal of the entire constructed seawall is ill conceived and unnecessary

The Department Staff provided, as an exhibit in the instant proceeding, a document entitled "Civil Penalty Recommendation." (Although the ECL, in §71-1107, provides for criminal liability for violations of §15-0505, the Department Staff is not pursuing criminal charges in the instant case.) In the Civil Penalty Recommendation, the Department Staff noted that ECL §71-1127 provides for a $500 civil penalty for an initial violation of Article 15, as well as a $100 civil penalty for each day of continuing violation.

On the basis of the initial alleged violation at Respondents' property, and the 630+ days ensuing from May 8, 1998, when the alleged violation was discovered, until January 27, 2000, when the hearing was held, the Staff calculated that Respondents could potentially be liable for a civil penalty of in excess of $64,000. However, by using the guidelines provided in the Department's Civil Penalty Policy of June 20, 1990, the Staff calculated a civil penalty based upon the economic benefit which the area of the alleged violation provides to the Respondents and the gravity of the alleged violation with respect to the damage done to the natural resources of the State. Using these factors, the Staff recommended a civil penalty in the amount of $7,500.

In arriving at the sum of $7,500, the Department Staff has calculated the accrued economic benefit as an amount of $4,500 for the proportional increase in real property value Respondents have gained through the potential addition of land area fronting the lake if the constructed seawall were to remain in place.

Respondents argued that such a factor is inappropriate because they are entitled to an offset distance from the original seawall and because the factor includes the thickness of the wall. Here, Respondents' arguments are unavailing; they applied to undertake a specific project and were approved for exactly that project. Without seeking any amendments to their permit, Respondents constructed a project for which they were not permitted. Moreover, as well documented in the record of this proceeding, Respondents have steadfastly refused to consider the removal of the constructed seawall, so the Department Staff factor for potential increased lot size is appropriate.

In checking the calculations of the Department Staff, however, I have found that due to Staff's use of an error in the measurement of the longer extension (taking 26 inches from the total length of six feet, three inches leaves a remaining 49 inches, not 59 inches, which should be used in the formula for calculating the area of a right triangle), the area of the alleged violation is 227 square feet, as opposed to the Staff's calculation of 250 square feet. Factoring this change into the calculations for increased assessed valuation due to additional land area, changed the Staff's amount of approximately $4,500 downward to $4,120.

The Department Staff also calculated the amount of $3,000 as the gravity component of the alleged violation, based upon $1,500 for the loss of habitat and impact on aquatic life for the duration of the violation until the date of the hearing, and $1,500 due to the culpability of Respondents based upon their intension and desire to increase the area of lawn between their cottage and the waters of the lake.

Respondents argue again that the areal calculation for impacted habitat suffers from the same error as noted in their argument regarding the economic benefit component of the proposed civil penalty. Again, I do not concur, but factoring in the reduction in actual impacted area from that which was calculated by the Department Staff, proportionally, the loss of habitat factor in the gravity component should be $1,362 versus the requested $1,500.

Respondents also argue that there is no proof in the record of any intention to increase the area of lawn in front of their cottage, and, therefore, the culpability factor used by the Department Staff in the penalty calculation is faulty and inapplicable. I agree; the record of the instant proceeding is devoid of any proof that Respondents intentionally set out to increase the size of the lawn area in front of their cottage through the construction of a seawall farther out into the waters of the lake than was authorized by their permit. Therefore, it is not appropriate to include the culpability factor in the gravity component.

Thus, totaling the adjusted economic benefit component ($4,120) and the adjusted gravity component ($1,362), the amount of civil penalty based upon only these two components is $5,482.

However, the Department's Civil Penalty Policy states in pertinent part, in Section II - Penalty Policy Purposes:

Later in the document, in the section regarding Penalty Adjustments - Violator Cooperation:

"The cooperation of the violator in remedying the violation may be an appropriate factor to consider in adjusting the penalty. . . ."

In this case, the Respondents were afforded the opportunity to resolve this matter by voluntarily entering into a consent order, with a substantially lower payable penalty than the Department Staff is presently seeking. While Respondents have been courteous, polite and non-confrontational, in the year and one half between the time the alleged violation, they have made no move to even attempt to remediate the site as required by the DEC and LGPC Staffs. Staff members from the DEC and LGPC have visited the site of Respondents' alleged violation on at least four different occasions. The Staff has twice met at the Respondents' (former) attorney's office to discuss settlement of the case. In each instance, the Staff clearly conveyed the Department's policy that the alleged illegally constructed seawall had to be removed as part of the settlement. Respondents have refused to consider such a removal. Finally, Respondents caused great inconvenience to the DEC and LGPC Staff members and to me, by arriving at the originally scheduled hearing in November 1999, only to seek an adjournment, because only an hour or two before the scheduled hearing time, they had a "falling out" with their attorney, and were no longer represented by counsel. Succinctly, Respondents have exhibited a distinct lack of cooperation in correcting the alleged violation.

With respect to Respondents' argument that complete removal of the constructed seawall is unnecessary and inappropriate, the LGPC has a long record of requiring the removal of structures in the lake which are not in compliance with the applicable permits and/or the LGPC regulations. The purpose of such a requirement is to attempt to return the violator to the point they would have been before the violation was committed, so that whatever gain they might have realized from the offending structure has to be removed, and further, a removal requirement serves as a deterrent to other land owners on Lake George who might seek to place unauthorized structures in the lake. Likewise, it is the DEC policy that enforcement for violations of the ECL is necessary to abate and remediate damage and to restore natural resources. Remediation of violations in the southern basin of Lake George is particularly important, given the intensity of development and use of the resource. If left unchecked, each violation, although seemingly minor, incrementally exacts its toll on the natural resources of the State. In this case, without removal of the constructed seawall, the previous productive habitat for aquatic species, of particular value as spawning and nursery habitat, will be irretrievably lost.

What the Respondents seemingly fail to recognize in the instant matter is that the seawall which was constructed is not only not in conformance with the application submitted and for the project permitted, but the end result of the project is an ill-conceived and poorly constructed seawall. Even if the after-the-fact improvements to the seawall which were proposed by Mr. Taylor, if he was allowed to "complete" the project, had been done, the seawall, as inspected only a month after it was installed, was pulling away from the existing seawall, leaning towards the lake, exhibiting a large vertical crack from top to bottom in the longitudinal (lakeward) face of the seawall and was lacking the proper footings and deadmen or tie rods to anchor the seawall to the lake bottom and the shore, respectively. Moreover, with the likely deterioration of the seawall over time, these problems can only be expected to become more serious, resulting in inevitable subsequent damage to the lake's resources beyond the current bounds of the constructed seawall, with additional valuable aquatic habitat being adversely impacted and potentially lost.

Therefore, it is not only appropriate and in concert with all applicable DEC and LGPC policies that the violation site be properly remediated by removal of the seawall, it is absolutely essential to prevent future additional damage to the natural resources of the State. Such removal should be without prejudice to the construction of a new seawall in conformance to the original application and in compliance with the permit which was issued on July 17, 1997 (which expired July 17, 1998), subject to the inclusion of detailed plans prepared by a contractor who is experienced in the construction of seawalls in Lake George and/or a licensed professional engineer, or, in the alternative, submission by the Respondents of an application for a modified or new, entirely different project, again, with detailed plans prepared by experienced people.

Lastly, when Respondents allegedly encountered obstructions which arguably prevented the construction of their new seawall in conformance with the LGPC permit which they had been issued, they had the option of ceasing construction and seeking an amendment to the permit. Instead, they intentionally continued their construction activities which ultimately resulted in an unsupported concrete structure being placed up to six feet, three inches into the lake, far in excess of the ten inch seawall for which they had applied and were approved, and far beyond even those other DEC-permitted projects on Lake George which they chose to highlight as comparisons.

In view of all the foregoing, the Department Staff's request for a $7,500 penalty, plus complete removal of the constructed seawall and restoration of the lake bottom at the site, is fully supportable, is not excessive in view of the total amount of penalty authorized by the ECL and is not "shocking to the conscience."

Conclusions

1. Pursuant to the Navigation Law, Lake George is a navigable water of the state.
2. The Respondents proposed a 10 inch concrete retaining wall to be constructed flush with the old deteriorated seawall. Ms. Gallagher believed, based upon the drawings which Mr. Taylor submitted with his application and as a result of an on site inspection on the date the permit was issued, that the dock was attached/connected directly to the seawall and/or that the seawall was supporting the shoreward end of the dock, and that as such, the seawall portion of the project was a minor replacement related to dock construction, i.e. - repairing the underwater crib supports for the dock. Moreover, the intent which Respondents conveyed to Ms. Gallagher lead her to believe that both parts of the project for which they sought permits were related and would be undertaken at the same time. Under these circumstances, Ms. Gallagher was correct in processing the application on behalf of the LGPC in accordance with the MOU.
3. Mr. Taylor is experienced at building single family homes. He had never before designed or constructed a seawall. He had not properly examined the old deteriorated seawall and near shore lake bottom to determine the location of any obstructions or impediments to his seawall construction plan. Mr. Taylor did not retain an experienced seawall contractor to design and/or construct his seawall. Mr. Taylor used the personnel who usually construct foundations for his homes to set up the forms and coordinate the concrete pour for the seawall on May 2, 1998. Purportedly, they had the wrong equipment to complete the job properly when obstructions were encountered. Rather than ceasing work on the seawall construction, and seeking a modification of their permit, Respondents pressed on with the project, without any plan, but in a hurry to complete the in-lake work due to the frigid temperatures that day, as well as due to the availability of all the equipment and manpower which had been marshalled for the project that day. The result is a seawall, a) which is poorly constructed, without any footings to anchor it to the lake bottom or deadmen/tie rods to anchor it to the shore, b) which was failing as soon as one month after it was constructed, being cracked and leaning lakeward, and which continues to fail as of the date of the hearing, and c) which is not in conformance with the proposal for which the LGPC permit was issued and the conditions of the permit which were applicable to the project.
4. The seawall, as constructed, has eliminated some 220+ square feet of productive aquatic habitat. This feature of the near shore area of Lake George in the vicinity of Respondents' property is a rugged cobble bottom which provides an important spawning and nursery area for a variety of aquatic species, including numerous panfish and sport fish which provide extensive recreational opportunities in the lake. With the current failing and unstable condition of the seawall, further deterioration is all but assured. If the seawall tips into the lake, additional aquatic habitat will be adversely impacted or destroyed.
5. The act of depositing fill, in this case concrete, below the mean high water level in any of the navigable waters of the State, including Lake George, is a regulated activity for which specific authorization from the Department or the LGPC is required. While Respondents received such authorization in the form of a permit for a specific project, they did not comply with the terms and conditions of such permit.
6. After encountering practical difficulties in complying with the terms and conditions of their permit, Respondents never applied to the LGPC for a permit modification which might have authorized them to extend the seawall project from 18 inches to 24 inches into the lake from the face of the existing seawall. Instead, Respondents constructed an unauthorized seawall which extends from a minimum of 26 inches (two feet, two inches) to as much as 75 inches (six feet, three inches) from the face of the existing seawall. Even if considered under the Department Staff's Standard Activity Permit Process ("SAPP"), as Respondents erroneously argued would have been appropriate, which process customarily allows an offset from the shoreline of up to 36 inches (three feet) if a project is reasonable and necessary and meets the criteria for the SAPP review, Respondents' seawall far exceeds anything which the Department Staff would have permitted for the site.
7. In view of the above Conclusions, I further conclude that the Department Staff met its burden of proof with respect to each of the elements of ECL §15-0505, to wit, a) Respondents placed fill (concrete), b) below the mean high water level, c) of Lake George, a navigable water of the State, d) without a permit to do so, by not conforming to the terms and conditions of the permit issued for their seawall project. Respondents have not offered any mitigating circumstances.
8. The Respondents' actions, as described above and on the previous pages, constitute a violation of ECL §15-0505.

Potential Further Violation

On July 12, 2000, Mr. Lacombe advised me and Mr. Young that Respondents had backfilled behind the new concrete seawall. Mr. Young responded that Respondents did, indeed, backfill behind the seawall, purportedly to remedy an unsafe condition created by the open area between the old seawall and the new concrete wall. This information was received following the closing of the record in the instant matter, and therefore, it is inappropriate for me to consider this information in the preparation of the instant Hearing Report and/or for inclusion in the Commissioner's Decision and Order. However, Respondents' actions in this regard may subject them to further enforcement proceedings by the Department Staff.

Recommendation

In consideration of the above Findings of Fact, Conclusions and Discussion factors, I recommend that the Commissioner issue an Order finding Respondents Ronald and Joanne Taylor have violated ECL §15-0505, and directing the named Respondents: to submit, within 60 days of the issuance of the Commissioner's Order, an approvable plan for complete removal of the illegal seawall and restoration of the subject bottom area of Lake George in front of their property, providing that all the removed concrete fill is legally disposed of, and that the named Respondents will fully and completely restore the violation site in accordance with a plan approved by the Department Staff.

I further recommend that the monetary penalty proposed by the Department Staff be assessed Respondents for their violation of ECL §15-0505 and that the Commissioner's Order require Respondents pay a civil penalty in the amount of $7,500.

/s/
Robert P. O'Connor
Administrative Law Judge
Office of Hearings and Mediation Services
New York State Department
of Environmental Conservation

Albany, New York

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