Friday, September 16, 2016

DEC Responds to Public Comments

Last August, A. Colarusso & Son applied to the New York State Department of Environmental Conservation for a permit to repair the "deep-water" dock: to "stabilize approximately 170 feet of eroded Hudson River shoreline with large rock rip-rap" and to "replacement approximately 75 feet of deteriorated concrete bulkhead within a lateral side berth with new steel bulkhead that will be placed in the same location as the existing structure."

Yesterday, on September 15, the DEC released its responses to the issues raised during a public comment period regarding the proposed project. The text of the DEC's response follows:
Issues Raised During Comment Period 
Almost 50 comment letters and/or emails were received concerning Colarusso’s application during the public comment period, which began on October 21, 2015 and ended on November 13, 2016 [sic]. The following paragraphs summarize the issues that were raised during the public comment period, and the Department’s response to these comments as they relate to the proposed project and permit application review.
Project Necessity
Questions were raised by some commenters as to whether the bank stabilization is actually necessary. Commenters indicated that their interpretation of historical aerial photographs showed no significant additional erosion occurring over the last several years, which led them to the conclusion that bank stabilization is not required along the proposed 170-foot length of Hudson River shoreline.
After conducting a field investigation, it is Department staff’s opinion that stabilization is necessary to avoid further damage to the shoreline at this location, especially given the trend toward increased intensity storms in NYS. Department staff also believes that habitat along the shoreline would benefit from the project. Currently, vegetation is not reestablishing along the eroded area because it appears that the substrate is not suitable and/or the slope is too severe. The project design includes placement of topsoil and a layer of geotextile under rock rip rap, and installation of live stakes that, once established, will enhance the habitat value of this section of shoreline. The woody vegetation was added to the stabilization design to provide a greater habitat value as a result of a recommendation in a public comment letter.
River Ecology
Potential adverse effect of project implementation on river ecology was the subject of several commenters concerns. As part of the review process, the applicant was required to evaluate the project for potential adverse impacts on Atlantic Sturgeon (Acipenser oxyrinchus), which is a federally-listed endangered species and is protected in NYS, and shortnose sturgeon (Acipenser brevirostrum), which is a federally- and state-listed endangered species, as well as essential fish habitat. An investigation of the project site and vicinity revealed an absence of important habitat features, such as deep water habitat, shallow mudflats and submerged aquatic vegetation (SAV) beds, which significantly reduces the potential for impacts to the two species identified above. Given these results, the Department has concluded that the project would have no adverse impacts on significant aquatic resources.
Property Ownership
Whether the project work is located on Colarusso’s property or is actually on State-owned land, was raised by several commenters. Commenters were concerned that since the property was previously “lands under water” of the State of New York, ownership should have been conveyed to a private entity by way of a land grant. The property boundary represented on project plan along the Hudson River is based on a description contained in a Grant of Lands Under Water dated January 16, 1932. According to this boundary, both project components, the shoreline stabilization and the lateral side berth bulkhead replacement, are clearly located on Colarusso property. The Department conferred with NYS Office of General Services (OGS) and OGS concurred that no State-owned Lands Under Water permit is required for the project because the project work is proposed within property previously conveyed by legislative grants to a private owner.
Possible Expansion
Some commenters questioned whether the bank stabilization and bulkhead replacement was part of a larger project, or expansion and whether these repairs were segmented from part of a larger project. The repairs are necessary to prevent further damage as outlined above. The applicant has not applied for, or received approval for, an expansion of their facility, and the Department is not aware of any plans for expansion at Colarusso’s Hudson River dock location.


  1. I discussed the erosion issue with the very DEC investigator who travelled to Hudson to inspect the claim last summer. He said that the 80 feet of the shoreline was intact and stable, and showed no signs or threat of erosion. He thought the claim was ridiculous.

    The State's own official map of lands underwater, called Water Index Map no. 12, shows that private ownership of the lands in question is an impossibility. (Gossips, please post this map for people to understand.)

    The OGS did its usual crap job, unless this represents something worse than incompetence. I'll bet it does ...

    This is ripe for an Article 78 challenge against the bad work of the OGS.

  2. Because of a proposal by St. Lawrence Cement in 2001, ownership of the shoreline has been disputed for the last fifteen years. St. Lawrence retracted its proposal before the State could investigate the issue, and the controversy lay dormant until last year's proposal by A. Colarusso & Son, Inc.

    Residents wrote to Governor Cuomo in November, requesting that the issue be reviewed by the Office of Government Services (OGS). The Commissioner of the DEC was asked to reply, saying that no permits would be issued before ownership was established.

    Now that the long-awaited analysis has arrived, it makes no sense.

    Evidently, in 1932 bureaucrats in the NYS Bureau of Land Management gifted 3.8 acres of land to a cement company, the current owner of the 1836 Graham grant of underwater lands in South Bay.

    It was not done through an act of the legislature, which is the only way such a grant can be legitimate, but accomplished by some bureaucrat who allegedly extended the grant towards the river.

    Oddly, the State never altered its official Index Map of underwater lands to reflect this unusual gift from the people of the State of New York (nor has it said that it will change its maps now).

    Actually, it's perfectly reasonable to suspect that this alleged gift from 1932 - one which was never reflected in any legislative act and doesn't appear on any official OGS map - was conceived in the last nine months, and only attributed to bureaucratic forebears.

    We have two OGS maps in our possession from 1932, and both are inconsistent with this decision which benefits the Colarusso company at the people's expense. (I'd be happy to provide these digitized maps for anyone who'd like to see them.)

    Everyone else, please join me in loathing our despicable State of New York.

    New York state doesn't give damn about the river, nor does it have to as long as the people are duped into thinking Albany is doing a great job.

  3. Little good it will do, but we intend to demonstrate to Commissioner Destito of the OGS that no act of the legislature ever granted state-owned lands beneath the Colarusso wharf.

    The DEC's claim of "property previously conveyed by legislative grants" is incorrect.

    Our public lands were given away unlawfully: first by a bureaucratic slip of the pen, and then by the State's underhanded defense of its mistake.

    The Public Lands Law of the State of New York tasks all state agencies which administer state-owned lands underwater "to protect the interests of the people in such lands underwater" (PBL, Article 6, §75(f)). This did not happen here.

    [Note: This is a different case from the City-owned waterfront sold to St. Lawrence Cement in 1981. Because that sale was not legal under State law, in essence it never occurred. Evidently, the City only needs to claim title in order to reestablish its - and our - ownership. Why isn't anyone discussing this?]