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FILED: CORTLAND COUNTY CLERK 0971672015 03:22 PM INDEX NO. EF14-553
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 09/16/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CORTLAND
STATE OF NEW YORK and the NEW YORK
STATE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, AFFIDAVIT IN
SUPPORT OF MOTION
Plaintiffs, FOR PARTIAL
SUMMARY JUDGMENT
- against - ON LIABILITY
JAMES C. STEVENS, IT], Index No. EF14-553
Defendant.
County of Albany
State of New York:
MAURICIO ROMA-HERNANDEZ, being duly sworn, deposes and says:
1 Tam an Environmental Scientist 3 in the office of Eric T.
Schneiderman, Attorney General of the State of New York, attorney for the
plaintiffs (the State) in this action. I submit this affirmation in support of the
State’s motion for partial summary judgment on liability regarding Environmental
Conservation Law (ECL) Article 17, Water Pollution Control, violations and a public
nuisance at property on Ridgeview Avenue in the Town of Cortlandville (the Site)
owned by defendant James C. Stevens, III (Stevens).
2 I obtained a Bachelor of Science degree in geology from the University
of Salamanca, Spain in 1981 and a Master of Science degree in geology from the
State University of New York at Albany in 1987.
3. I have been employed as an Environmental Scientist 3 in the Office of
the Attorney General’s Environmental Protection Bureau since 2008. Prior to my
current position, I was employed as an Environmental Specialist 2, Hydrogeologist,
with the New York State Department of Transportation, Environmental Science
Bureau from 1992 to 2008. I was also an Engineering Geologist, Hydrogeologist
with the New York State Department of Environmental Conservation, Division of
Hazardous Waste Remediation from 1989 to 1992.
4 I have over twenty five years of experience in Environmental Sciences,
including over ten years of experience in Environmental Analysis utilizing
Geographic Information Systems (GIS) and the opinions expressed in this affidavit
are based upon my education, training, years of experience and my application of
fundamental principles of environmental analysis and hydrogeology to the facts as
discussed below.
5. It is my understanding that there is no dispute regarding the fact that
in July 2012, Stevens engaged in clearing, grading, excavating and related
construction activities on his undeveloped agricultural property located on
Ridgeview Avenue in Cortlantdville (the Site). It is also my understanding that
these activities altered the drainage patterns to capture as much runoff as possible
from the Site and re-direct it through a retention pond. Affidavit submitted in
support of Stevens signed by Timothy C. Buhl on December 12, 2014, 4] 16.
6 It is my further understanding that, based upon the foregoing, as well
as my review of aerial photographs from official sources, that Stevens’ activities on
the Site in July 2012 included: i) enhancing an inlet/collection channel running
north to south; ii) enhancing a pond; iii) installing a twelve inch diameter metal
outlet pipe at the pond bottom; iv) creating an outlet channel running west to east;
and v) creating a stone apron discharge point at the southeastern most corner of the
agricultural area of the Site (the Project).
7 Four aerial photographs I prepared utilizing GIS technology depict the
Site and surrounding area in 1995, 2003, 2006 and 2011 are attached as Exhibit 1.
All four photos utilize data obtained from the New York State Office of Information
Technology Services (NYSITS). The 1995 and 2003 images are color-infrared (CIR)
aerial orthophotos, rather than color aerial photographs. All four photos indicate
the location of the property line as well as the present day pond area. Based upon
my review of the four aerial photographs in Exhibit 1, it is apparent that the area
surrounding the pond/wet area was not prepared for cultivation during this period.
Based upon my review of the aerial photographs in Exhibit 1 and utilizing standard
GIS software, I have calculated that this non-cultivated, wet and/or treed area
consists of approximately 3.3 acres.
8 A United States Department of Agriculture (USDA) aerial photograph
I prepared utilizing GIS technology depicting the Site and surrounding area in 2013
with the outlet channel area and discharge point circled in red is attached as
Exhibit 2. This photograph depicts the area after construction of the Project and
shows a well-defined drainage channel east of the pond that would divert the Site’s
stormwater flow to the east.
9. Based upon my comparison of the pre-Project aerial photographs in
Exhibit 1 and the post-Project aerial photograph in Exhibit 2, and utilizing
standard GIS software, I have calculated that: i) the clearing, grading, excavating
and related construction activities regarding creation of the Project in 2012 involved
soil disturbances on more than two acres of land; and ii) the distance from the
Project inlet at the west end of the pond to the stone apron Project discharge point
is approximately 775 feet.
10. Light Detection and Ranging (LIDAR) is a remote sensing method that
uses light in the form of a pulsed laser to measure ranges (variable distances) to the
Earth from an airborne system. These light pulses—combined with other data
recorded by the airborne system— generate precise, three-dimensional information
about the shape of the Earth and its surface characteristics. LIDAR systems allow
scientists and mapping professionals to examine both natural and manmade
environments with accuracy, precision, and flexibility. Scientists are using LIDAR
to produce digital elevation models for use in geographic information systems in
many applications. For example, LIDAR-derived digital elevation models can be
reliably used in predicting the natural, downhill flow of surface water under
ordinary circumstances. LIDAR-derived digital elevation models can be more useful
than traditional United States Geological Survey (USGS) quadrangle topographic
maps because the data is more accurate and the models typically contain
significantly more data points. For example, the relevant USGS topographic map
provides approximate contour lines at twenty foot intervals, while a LIDAR-derived
digital elevation model available for the Site and surrounding area is more precise.
11. A digital elevation model image prepared by me utilizing LIDAR-
derived digital elevation model data obtained from NYSITS and standard GIS
software is attached as Exhibit 3. The LIDAR data was collected from April 26,
2005 to May 7, 2005 as part of a Federal Emergency Management Agency (FEMA) —
DEC collaboration on floodplain mapping. The LIDAR data was processed to
identify and remove elevation points falling on vegetation, buildings, and other
above ground structures and provides elevation data at four meter intervals on a
grid. Bare earth data points were taken from the LIDAR information and used to
make a digital elevation model from which the image attached as Exhibit 3 was
created. The digital elevation model image attached as Exhibit 3 accurately depicts
the approximate relief characteristics of the Site and surrounding area in 2005, as
well as the location and size of the Project pond in blue and the location of the stone
apron discharge point in purple.
12. The image attached as Exhibit 3 indicates stormwater on the Site
would primarily drain from the higher elevations to the north and northwest across
the Site in a south, southeasterly direction. Review of the digital elevation model
data used to create this image indicates that the stormwater on the Site would be
expected to drain toward the pond area.
13. Based upon my understanding of the undisputed facts regarding the
Project as discussed in paragraph no. 5 above, and my application of fundamental
principles of hydrogeology in interpreting the GIS data utilized in preparing
Exhibits 1, 2 and 3 to this affidavit, it is my opinion to a reasonable degree of
certainty that: i) much of the Site’s pre-Project stormwater flow drained toward the
area of the pond; and ii) construction of the Project in 2012 resulted in significant
disturbance to the original drainage patterns of the Site.
14. An aerial photograph utilizing GIS technology prepared by me
utilizing NYSITS data depicting a portion of the Site and surrounding in 2015, is
attached as Exhibit 4. Significant soil erosion immediately downslope from the
Project stone apron discharge point is readily apparent in this 2015 aerial photo,
but it is not apparent in the 2018 aerial photo attached as Exhibit 2. The area of
significant soil disturbance is circled in red.
15. The aerial photograph taken in 2015 attached as Exhibit 4 clearly
illustrates significant channel erosion at the area immediately to the east of the
discharge point where the ground slope significantly increases (see Exhibit 3). Some
of the eroded material would be expected to be deposited at the bottom of the slope
where the ground gets flatter because of a decrease of surface water velocities.
16. It is my opinion to a reasonable degree of certainty that: i) the Project
re-directed much of the Site’s natural stormwater drainage toward the stone apron
discharge point; ii) stormwater discharges from the Project adversely impacted the
area of significant soil erosion depicted in the 2015 aerial photograph attached as
Exhibit 4; iii) stormwater discharges from the Project have washed away property
on St. Mary’s Cemetery that previously contained monuments and burial vaults and
have desecrated graves by depositing soil, gravel, stones and other debris upon
them; and iv) but for Stevens’ construction of the Project, the extensive damage to
St. Mary’s Cemetery, as depicted in the Affidavit of Sc, ‘ook, sworn on
September 9, 2015, Exhibits 3 and 4, would not ive occul
[AURICIO ROMA- IRNANDEZ
ia
Subscril b d sworn to before me
SUSAN L. TAYLOR
On this | | day of September, 2015 Notary Public, State of New York
0. 0: 6020240
Qualified in Rensselaer Cou!
Commission Expires March 1, 2014
Notary Public
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FILED: CORTLAND COUNTY CLERK 0971672015 03:22 PM INDEX NO. EF14-553 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 09/16/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CORTLAND STATE OF NEW YORK and the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, AFFIDAVIT IN SUPPORT OF MOTION Plaintiffs, FOR PARTIAL SUMMARY JUDGMENT - against - ON LIABILITY JAMES C. STEVENS, IT], Index No. EF14-553 Defendant. County of Albany State of New York: MAURICIO ROMA-HERNANDEZ, being duly sworn, deposes and says: 1 Tam an Environmental Scientist 3 in the office of Eric T. Schneiderman, Attorney General of the State of New York, attorney for the plaintiffs (the State) in this action. I submit this affirmation in support of the State’s motion for partial summary judgment on liability regarding Environmental Conservation Law (ECL) Article 17, Water Pollution Control, violations and a public nuisance at property on Ridgeview Avenue in the Town of Cortlandville (the Site) owned by defendant James C. Stevens, III (Stevens). 2 I obtained a Bachelor of Science degree in geology from the University of Salamanca, Spain in 1981 and a Master of Science degree in geology from the State University of New York at Albany in 1987. 3. I have been employed as an Environmental Scientist 3 in the Office of the Attorney General’s Environmental Protection Bureau since 2008. Prior to my current position, I was employed as an Environmental Specialist 2, Hydrogeologist, with the New York State Department of Transportation, Environmental Science Bureau from 1992 to 2008. I was also an Engineering Geologist, Hydrogeologist with the New York State Department of Environmental Conservation, Division of Hazardous Waste Remediation from 1989 to 1992. 4 I have over twenty five years of experience in Environmental Sciences, including over ten years of experience in Environmental Analysis utilizing Geographic Information Systems (GIS) and the opinions expressed in this affidavit are based upon my education, training, years of experience and my application of fundamental principles of environmental analysis and hydrogeology to the facts as discussed below. 5. It is my understanding that there is no dispute regarding the fact that in July 2012, Stevens engaged in clearing, grading, excavating and related construction activities on his undeveloped agricultural property located on Ridgeview Avenue in Cortlantdville (the Site). It is also my understanding that these activities altered the drainage patterns to capture as much runoff as possible from the Site and re-direct it through a retention pond. Affidavit submitted in support of Stevens signed by Timothy C. Buhl on December 12, 2014, 4] 16. 6 It is my further understanding that, based upon the foregoing, as well as my review of aerial photographs from official sources, that Stevens’ activities on the Site in July 2012 included: i) enhancing an inlet/collection channel running north to south; ii) enhancing a pond; iii) installing a twelve inch diameter metal outlet pipe at the pond bottom; iv) creating an outlet channel running west to east; and v) creating a stone apron discharge point at the southeastern most corner of the agricultural area of the Site (the Project). 7 Four aerial photographs I prepared utilizing GIS technology depict the Site and surrounding area in 1995, 2003, 2006 and 2011 are attached as Exhibit 1. All four photos utilize data obtained from the New York State Office of Information Technology Services (NYSITS). The 1995 and 2003 images are color-infrared (CIR) aerial orthophotos, rather than color aerial photographs. All four photos indicate the location of the property line as well as the present day pond area. Based upon my review of the four aerial photographs in Exhibit 1, it is apparent that the area surrounding the pond/wet area was not prepared for cultivation during this period. Based upon my review of the aerial photographs in Exhibit 1 and utilizing standard GIS software, I have calculated that this non-cultivated, wet and/or treed area consists of approximately 3.3 acres. 8 A United States Department of Agriculture (USDA) aerial photograph I prepared utilizing GIS technology depicting the Site and surrounding area in 2013 with the outlet channel area and discharge point circled in red is attached as Exhibit 2. This photograph depicts the area after construction of the Project and shows a well-defined drainage channel east of the pond that would divert the Site’s stormwater flow to the east. 9. Based upon my comparison of the pre-Project aerial photographs in Exhibit 1 and the post-Project aerial photograph in Exhibit 2, and utilizing standard GIS software, I have calculated that: i) the clearing, grading, excavating and related construction activities regarding creation of the Project in 2012 involved soil disturbances on more than two acres of land; and ii) the distance from the Project inlet at the west end of the pond to the stone apron Project discharge point is approximately 775 feet. 10. Light Detection and Ranging (LIDAR) is a remote sensing method that uses light in the form of a pulsed laser to measure ranges (variable distances) to the Earth from an airborne system. These light pulses—combined with other data recorded by the airborne system— generate precise, three-dimensional information about the shape of the Earth and its surface characteristics. LIDAR systems allow scientists and mapping professionals to examine both natural and manmade environments with accuracy, precision, and flexibility. Scientists are using LIDAR to produce digital elevation models for use in geographic information systems in many applications. For example, LIDAR-derived digital elevation models can be reliably used in predicting the natural, downhill flow of surface water under ordinary circumstances. LIDAR-derived digital elevation models can be more useful than traditional United States Geological Survey (USGS) quadrangle topographic maps because the data is more accurate and the models typically contain significantly more data points. For example, the relevant USGS topographic map provides approximate contour lines at twenty foot intervals, while a LIDAR-derived digital elevation model available for the Site and surrounding area is more precise. 11. A digital elevation model image prepared by me utilizing LIDAR- derived digital elevation model data obtained from NYSITS and standard GIS software is attached as Exhibit 3. The LIDAR data was collected from April 26, 2005 to May 7, 2005 as part of a Federal Emergency Management Agency (FEMA) — DEC collaboration on floodplain mapping. The LIDAR data was processed to identify and remove elevation points falling on vegetation, buildings, and other above ground structures and provides elevation data at four meter intervals on a grid. Bare earth data points were taken from the LIDAR information and used to make a digital elevation model from which the image attached as Exhibit 3 was created. The digital elevation model image attached as Exhibit 3 accurately depicts the approximate relief characteristics of the Site and surrounding area in 2005, as well as the location and size of the Project pond in blue and the location of the stone apron discharge point in purple. 12. The image attached as Exhibit 3 indicates stormwater on the Site would primarily drain from the higher elevations to the north and northwest across the Site in a south, southeasterly direction. Review of the digital elevation model data used to create this image indicates that the stormwater on the Site would be expected to drain toward the pond area. 13. Based upon my understanding of the undisputed facts regarding the Project as discussed in paragraph no. 5 above, and my application of fundamental principles of hydrogeology in interpreting the GIS data utilized in preparing Exhibits 1, 2 and 3 to this affidavit, it is my opinion to a reasonable degree of certainty that: i) much of the Site’s pre-Project stormwater flow drained toward the area of the pond; and ii) construction of the Project in 2012 resulted in significant disturbance to the original drainage patterns of the Site. 14. An aerial photograph utilizing GIS technology prepared by me utilizing NYSITS data depicting a portion of the Site and surrounding in 2015, is attached as Exhibit 4. Significant soil erosion immediately downslope from the Project stone apron discharge point is readily apparent in this 2015 aerial photo, but it is not apparent in the 2018 aerial photo attached as Exhibit 2. The area of significant soil disturbance is circled in red. 15. The aerial photograph taken in 2015 attached as Exhibit 4 clearly illustrates significant channel erosion at the area immediately to the east of the discharge point where the ground slope significantly increases (see Exhibit 3). Some of the eroded material would be expected to be deposited at the bottom of the slope where the ground gets flatter because of a decrease of surface water velocities. 16. It is my opinion to a reasonable degree of certainty that: i) the Project re-directed much of the Site’s natural stormwater drainage toward the stone apron discharge point; ii) stormwater discharges from the Project adversely impacted the area of significant soil erosion depicted in the 2015 aerial photograph attached as Exhibit 4; iii) stormwater discharges from the Project have washed away property on St. Mary’s Cemetery that previously contained monuments and burial vaults and have desecrated graves by depositing soil, gravel, stones and other debris upon them; and iv) but for Stevens’ construction of the Project, the extensive damage to St. Mary’s Cemetery, as depicted in the Affidavit of Sc, ‘ook, sworn on September 9, 2015, Exhibits 3 and 4, would not ive occul [AURICIO ROMA- IRNANDEZ ia Subscril b d sworn to before me SUSAN L. TAYLOR On this | | day of September, 2015 Notary Public, State of New York 0. 0: 6020240 Qualified in Rensselaer Cou! Commission Expires March 1, 2014 Notary Public