1990 WL 182454 decided August 2, 1990  

State Of New York Department Of Environmental Conservation

In the Matter of the Alleged Violation of the Environmental Decision and Conservation Law ("ECL") 624-0701
ORDER #3-1769/8909 by E SPECTRUM ASSOCIATES, L.P.
Case Respondent-1

WHEREAS:

Pursuant to a Notice of Hearing and Complaint dated June 28, 1989, an administrative enforcement hearing was held before Administrative Law judge ("AJL") Andrew S. Pearlstein on November 9, 1989, in the New Paltz Town Hall, Route 32, New Paltz, New York. The Region 3 staff of the Department of Environmental conservation (the "Department Staff") was represented by Marc S. Gerstman, Esq., General Counsel (Jonah Triebwasser, Esq., Senior Attorney. Region 3, of counsel). Spectrum Associates, L.P., the Respondent, was represented by Benjamin Ostrer, Esq., Chester, New York.

Upon a careful review of the ALJ's Hearing Report (the "Report", copy attached), I concur with its Findings of Fact, Conclusions and Recommendation, subject to my comments below.

The first issue presented here, whether the Respondent's shale road was located within a regulated freshwater wetland or adjacent area, requires considering the legal effect of duly promulgated final freshwater wetlands maps on potentially affected landowners. The difficulty stems from the practical necessity, recognized by the legislature in the Freshwater Wetlands Act, promulgating statewide official wetlands maps which can only show the approximate wetland boundaries Where the boundaries shown on the maps are only approximations, there will always be some degree of uncertainty in the immediate vicinity of mapped wetland boundaries with regard to whether lands apparently on the boundaries are in fact intended to be regulated wetlands. The statute providing for Staff field delineation's of wetland boundaries upon a landowner's request, ECL S24-0301(7), is designed to addresses this problem.

Where the official maps have been duly promulgated, as in this case involving a site in the Town of Chester in Orange County, the land3wner is entitled to reasonably rely on the map. Whether the map affords a landowner reasonable notice that his land may be regulated wetland is an issue of fact to be determined by particular circumstances, including the exact location involved as shown on the official map, and any other relevant factors such as past course of conduct or indications of actual notice. If a particular property or site of a proposed activity is clearly outside a mapped wetland boundary, the landowner is:' "afforded reasonable notice that it may be regulated wetland. In this situation, the site is not regulated wetland although it may in fact contain wetland vegetation or wetland characteristics which would cause a Department Staff expect to designate it " ' regulated wetland- The field delineation Procedure is designed to precisely define wetland boundaries bur lay nor be used to extend or alter the officially mapped wetland boundaries. That may only be done according to the authorized procedures for map amendments and adjustments in, 6 NYCRR S664.7(')(2)-

In this case I concur with the finding of the ALJ that the Respondent was not provided with reasonable notice that the location of the shale road may be regulated freshwater wetland. The department Staff's own chief witness placed its location over 100 feet from the wetland boundary. This was consistent with Respondent's previous survey. The Respondent clearly did not hive actual notice that the site may be regulated wetland, as indicated by the fact that he had obtained field wetland boundary delineation's from Staff on other nearby properties in this same wetland. but not for this particular site. This is essentially : similar to the situation contemplated by the' regulations governing amendments to the wetlands maps in which an activity in an area proposed to be added to the map is not subject to regulation if the activity is initiated prior to notice of the proposed amendment (see 6 NYCRR S664.7[al[21[i]) In this case, although no formal amendment or adjustment process has yet commenced, it appears that the mapped extent of wetland WB-18 may be too restrictive and should be reviewed by Staff. In these circumstances. the shale road was not located in a regulated freshwater wetland. and no permit was required for Respondent's activity with respect to that road.

I further concur that the Department Staff did not sustain its burden of proving that Respondent conducted a regulated activity with respect to the shale roe recent activity preponderance of the evidence indicates that the complained of by Staff was only resurfacing of a pre-existing road. Resurfacing an existing road is maintenance and repair which is an exempt activity not requiring a permit(see 6 NYCRR S633.4[d][10]).

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

I. The charge that Respondent conducted a regulated activity in a freshwater wetland in violation of ECL 324-0701 is hereby dismissed.

NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION
THOMAS C. JORLING, COMMISSIONER

Dated: August 2, 1990
Albany, New York

To: Benjamin Ostrer, Esq.
28 Main Street
Chester, NY 10918

Jonah Triebwasser, Esq.
NYSDEC Region 3
21 South putt Corners Road
Albany, NY 12561