Affidavit: CPV I am a professional ecologist and wetland specialist, and president of Hickory Creek Consulting, LLC since 2002. My office is located in the Town of Red Hook, Dutchess County, New York. During my professional career, my experience has included environmental impact assessment, numerous SEQRA reviews, habitat assessment, wetland delineation, biodiversity training, site plan and project reviews, with training in wetland delineation and functions and values assessment (U.S. Fish and Wildlife Service National Ecology Research Center), and as a biologist with the US Fish and Wildlife Service (National Ecology Research Center). I have worked with Planning Boards in more than fifteen townships in Orange, Dutchess and Ulster Counties on matters including wetland delineation and verification, habitat impact assessment, biodiversity assessment, and natural resource inventories, review of site plans, Environmental Assessment Forms and review of Draft and Final Environmental Impact Statements (“DEIS” / “FEIS”) under the New York State Environmental Quality Review Act (“SEQRA”). I’ve assisted towns and project applicants with regulatory compliance (including SEQRA). I have produced a book that documents much of my environmental impact review experience; “Connecting the Drops: A Citizens’ Guide to Protecting Water Resources” was published by Cornell University Press in July, 2015. For other publications, and additional details, please refer to the attached resume. Project History and personal knowledge I have worked with the Petitioners beginning in March, 2015, when I provided comments on a new site plan for the FEIS. I was originally contracted to work on this project as part of the Greenplan planning team. In August and September of 2007 I reviewed project files and maps; in July-August 2008 I reviewed the draft scoping document, providing comments, edits, and requesting additional information. In September 2008 I attended planning board meetings, and edited revisions to a new draft scoping document. And in April-May, 2009 I participated in two rounds of reviews and comments on the DEIS. I reviewed all written comments received by the Town of Wawayanda and prepared a summary for the planning board. The Greenplan team was replaced by the Town after the completion of the above described activities, so I did not have the opportunity to verify whether or not my recommendations regarding water, wetlands, and wildlife were in fact followed. Requested studies to be completed in June and July 2009 and later, were therefore not reviewed by Greenplan. Because some of these recommendations and information requests met with some resistance at the time, I have no reason to assume they were followed after Greenplan’s departure. I have provided affidavits for several other cases involving SEQRA reviews filed in the towns of Liberty, Ulster, and Wyoming, New York. 1 Affidavit: CPV As a result of the above-described reviews, and based on my experience and expertise, it is my professional judgment that, based on new information, certain conclusory statements in CPV’s FEIS are without evidentiary support, and are used as a surrogate for detailed data and analysis required by SEQRA, the DEC and the USFWS. It is my further professional judgment that reliance on such conclusory statements instead of data and analysis in the FEIS precluded evidence-based decision-making regarding the significance of the adverse impacts of the project on threatened and endangered species, and their habitats. New information concerning bog turtles and their habitat 1. The bog turtle (Glyptemys muhlenbergii) is listed as a state endangered, federally threatened species.While the project’s FEIS states that no bog turtle habitat is present on the project site, new evidence regarding the likely presence of bog turtles is presented in the letter from Jason Tesauro to Pramilla Mallick dated 3-27-15 . Mr. Tesauro is a well-respected Hudson Valley bog turtle survey expert, and has worked with Hudsonia at Bard College’s Environmental Field Station. His findings of bog turtle habitat on an adjacent site would alone be sufficient to require an intensive Phase 1 study (and perhaps a Phase 2 as well) of the project site. Any further studies on the project site should be conducted by a certified bog turtle expert. This letter, along with deficiencies in the FEIS bog turtle habitat review, documents the need for additional bog turtle work at the project site (see attachment). 2. This new evidence is further substantiated by deficiencies in the information contained in the FEIS. The FEIS does not contain evidence to adequately substantiate the finding of “no bog turtle habitat.” According to the Bog Turtle Recovery Plan (USFWS 2001 revised 2006) the standards for a Phase 1 Bog Turtle survey are clearly defined. These protocols have not been followed in the FEIS documentation. The Bog Turtle Habitat Evaluation Field Form included in the FEIS appendices documents only one area of wetland on the project site, and does not follow the directions put forth in the FWS protocol. For example, the standards state: • Potential bog turtle habitat is recognized by three criteria (not all of which may occur in the same portion of a particular wetland). Absence of one or more criteria does not preclude big turtle use of these areas to meet important life functions. • If these criteria are present in the wetland, then the wetland is considered potential bog turtle habitat, regardless of whether or not that portion of the wetland occurring within the project boundaries contains all three criteria. • Substrate is permanently saturated organic or mineral soils. These are often soft,mucky soils...although in degraded wetlands or summers of dry years this may be limited to areas near spring heads or drainage ditches. 2 Affidavit: CPV • Some forested wetlands are suitable given hydrology, soils and historic land use. Other wetlands used include shrub-scrub, grasses and sedges, and in disturbed areas, these areas may contain reed canary grass or purple loosestrife. • Bog turtles may thrive on and near agricultural sites (as demonstrated by populations elsewhere in the Hudson Valley). 3. USACE review of wetlands onsite is apparently based on the original site plan submitted as part of the FEIS. A revised site plan was presented by the project proponent to the Town in spring 2015. It was developed in response to DOT requests. However, that site plan has now been discarded in favor of the original site plan. In light of site plan changes, and potential unresolved DOT requirements that will result in further site plan changes, the proximity of wetland edges to project construction activities is unclear. Until a final site plan that responds to all comments from the DOT and from the US ACE is adopted as part of the FEIS it is not possible to form a professional evaluation of impacts and mitigation regarding wetlands onsite. This information is also essential for completion of a new bog turtle habitat / impacts review. 4. The site plans show construction right up to the edge of some of the federallyprotected wetlands because no buffer is required under federal law. The FEIS mentions buffers as mitigation. It is well documented that lack of a buffer puts a wetland under high risk for water quality contamination, as per DEC’s requirement of a 100 foot buffer. 5. Due to the connectivity between the wetlands on the site, and connectivity with groundwater, what mitigation is being provided for potential groundwater contamination? 6. Since all waters above and below ground on the project site are hydrologically connected, and since construction activities on land also affect water quality, any contamination or other degradation of any wetlands or groundwater onsite may also impact bog turtle habitat. This must be evaluated as part of a new bog turtle habitat review. 7. It is imperative that a new bog turtle review be conducted by a certified bog turtle expert to ensure accuracy and completeness of subsequent findings. IV Bats and their habitat: New Information 1. The northern long-eared bat (Myotis septentrionalis), a NYS listed threatened species, was listed as a threatened species by the US Fish and Wildlife Service in 2015. Because this is a new listing, information pertaining specifically to this species should be included in the SEQRA documents for this project, as part of a supplemental EIS. 2. An assessment of potential project impacts on the recently listed northern longeared bat cannot be completed without consideration of information which is not included in the FEIS. Though the northern long-eared bat shares some characteristics of the Indiana bat which was considered in the project’s FEIS, the species are not the same. They are two different listed species; as such they require distinct evaluations. 3 Affidavit: CPV 3. A phone conversation with Carl Herzog, biologist and bat specialist at the NYS DEC Albany office, on August 21, 2015 confirmed that: • The proper protocol for assessing habitat, determining potential project impacts on the northern long-eared bat, and developing mitigation for any impacts on this species begins with contacting the NYS Natural Heritage Program for information about the locations of any known hibernacula or summer summer colonies and roosting areas used by this species. • The NYS Natural Heritage Programs lists a greater number of known (hibernacula and roosting) sites for the northern long-eared bat than for the Indiana bat. • Without more information, actual site use by northern long-eared bats is unknown. If the project contains suitable bat roosting habitat and is located within the buffer zone for hibernacula or known roosting sites for the northern long-eared bat, a consultation with NYS DEC biologist at Region 3 in New Paltz should be initiated. This consultation will result in specific recommendations regarding the project site’s trees and potential impacts/ mitigation for this species. • Project sites within these buffer zones require more stringent habitat protection (i.e. roosting trees). Habitat is protected if bats are roosting there. It is possible that additional bat surveys for this species would be required to document presence on the project site. 4. A review of the USFWS “Northern Long-Eared Bat Interim Conference and Planning Guidance” for USFWS Regions 2-6. (Jan. 6, 2014. http://www.fws.gov/northeast/virginiafield/pdf/NLEBinterimGuidance6Jan2014.pdf) provides additional information that supports the need for a distinct habitat evaluation for the newly listed bat species. 5. The northern long-eared bat shares some basic habitat requirements with the Indiana bat (Myotis sodalis), a federal and state listed endangered species for which suitable habitat has been documented onsite. However, the current FWS guidelines (see USFWS “Northern Long-Eared Bat Interim Conference and Planning Guidance”) also provide extensive documentation on the differences between the two bat species and their habitat requirements and behavior. For example, the northern long-eared bat is generally less selective in its roost trees, using smaller trees (down to about 3” diameter) for roosting (roosting groups are smaller), as well as using cavities in dead trees (a habitat feature that is not used by the Indiana bat). • Northern long-eared bats movements between summer roost and winter hibernacula is usually between 35-55 miles, though the full range is 5-168 miles. ((USFWS ) • May use over 35 species of trees for roosts; importance of various tree species differs by region. “Although NLEB are more flexible/plastic than Indiana bats, there may be a small amount of roost selection overlap between the two species.” (USFWS) 4 Affidavit: CPV • The foraging distances used to estimate USFWS buffers for home ranges of known habitat are generally 1.5 miles from roosts or 3 miles from captures. • USFWS planning guidance recommends a set of actions for bat habitat protection in project areas that lie within five miles of known or presumed bat hibernacula. (Appendix D: Conservation Measures for the NLEB). • USFWS has developed procedural flow charts that show a recommended process for completing conference procedures for determining whether or not a project is likely to adversely affect northern long-eared bats (Appendix E: NLEB Conference Procedures Flow Charts). These procedures should be followed if the project is found to be in the vicinity of known summer roosts, captures, or hibernacula. 6. Cumulative impacts of tree removal on the northern long-eared bat as well as Indiana bat populations in the nearest known hibernacula should be considered as part of this review. 7. Tree removals in late March, 2015. The premature removal of trees on the CVP site before completion of the permitting and review process resulted in the loss of potential bat roosting trees, and occurred with no prior evaluation of long-eared bat habitat. It was also a violation of the conditional permit in place at that time. 8. Based on the new information descried above it is my professional finding that a supplemental EIS should be prepared for this project. Karen Schneller-McDonald August 24, 2015 Attachments Jason Tesauro Letter March 27, 2015 Dear Pramilla, In response to your inquiry about the potential for the state-endangered/federally-threatened Bog Turtle to occur within or proximate to the proposed CPV site, I offer the following: · While I have not been on the CPV site, I was hired by Clough Harbor Associates in 2011 to evaluate the Bog Turtle habitat suitability on a nearby site of a proposed car dealership (address: 3492 Route 6, Middletown, NY 10940), located approximately 560 meters east of the CPV site. Suitable Bog Turtle habitat was present on the site, and it was reported to Clough Harbor Associates in a brief report. (See enclosed map for suitable habitat locations.) · The report you provided me prepared by CPV's biological consultants--none of whom, from what I could tell, had extensive field experience with Bog Turtles--stated that elements of Bog Turtle habitat were present on the site but collectively did not meet suitable habitat criteria. Note that a similar conclusion had been made on the parcel that I evaluated for Clough Harbor; 5 Affidavit: CPV however, during my follow-up evaluation, the presence of suitable habitat was plainly evident. It often takes years of experience working with Bog Turtles to develop the skill-set necessary to accurately assess a wetland's potential for supporting this unique species. Moreover, habitat assessments are often insufficient at evaluating wetlands as an ecological whole, rather than what is delimited by parcel boundaries. The presence of adjacent suitable Bog Turtle puts the CPV site in a different perspective, as any proposed activities and/or onsite wetland impacts could affect offsite portions of this large state-wetland, particularly downstream portions. (See the US Fish and Wildlife Service's Bog Turtle Recovery Plan for information on Conservation Zones 1, 2, and 3 for more information on offsite impacts.) Also note that should the wetlands on CPV be unsuitable as per the conventional definition of Bog Turtle habitat, it does not preclude use by Bog Turtles. It is well-documented that Bog Turtles use variety of wetland types (e.g., swamps, ditches, swales, fields, etc) surrounding their core seepage meadow habitats. Sincerely, Jason Tesauro Jason Tesauro Consulting, LLC Karen Schneller-McDonald Resume Hickory Creek Consulting LLC ____________________________________________________________________________________ Karen Schneller-McDonald 25 Carriage Drive Red Hook, New York 12571 845 758-2369 katykill2@gmail.com www.HickoryCreekLLC.com Karen Schneller-McDonald EDUCATION North Carolina State University: B.S. Conservation of Natural Resources 1974; Colorado State University Graduate School: Plant Ecology and Plant Geography SELECTED ADDITIONAL TRAINING • • • American Writers and Artists Institute. Copywriting, e-newsletters, website content, 2012-13. Pace Land Use Law Center, Land Use Leadership Alliance Training Program. June, 2006. State University of New York College of Environmental Science and Forestry, Stormwater Management Program courses including: NYS DEC stormwater regulations, erosion and sediment control planning, design of stormwater ponds and wetlands, infiltration/filtering practices (January-June, 2005). • "Jurisdictional Delineation of Wetlands in the American West"; National Wetland Training Cooperative. • “Functional Assessment of Wetland and Riparian Ecosystems and Wetland Identification”; U.S. Fish and Wildlife Service, National Ecology Research Center. • Small Group Facilitation Processes (consensus decision making); Institute on Man and Science and Dynamac Corp. • Raptor Identification; Rocky Mountain Raptor Program. • Rare plant surveys, US Fish and Wildlife Service. 6 Affidavit: CPV SELECTED EXPERIENCE Hickory Creek Consulting, Red Hook, New York. President. 2003 to present. Recent projects include: NYS GOSR-funded bridge replacement/stream enhancement projects (in response to flood damage) in the Catskills; Saw Kill Watershed Community leadership team, water quality monitoring; analyses of the impact of wind farms on protected bird and bat species. Environmental impact assessment, evaluation and pubic outreach services to municipalities and organizations. Wetland delineation and assessment; environmental impact review and mitigation planning; watershed management and restoration planning (e.g. Lower Esopus Watershed); habitat assessment guidelines; natural resource inventories; stormwater Best Management Practices review; water resource protection laws, land trust conservation easement inspection and evaluation (Mohonk Preserve). Preparation of brochures, reports, and fact sheets; workshops; presentations, e.g. “Woodstock Wetlands and Streams: Local Protection”; “Lower Esopus Watershed Management Plan: Phase One” (Lower Esopus Watershed Partnership); “Integrating Natural Resources Protection into Land Use Decisions” (Pace Land Use Leadership Alliance Training); and “Wetlands, Watersheds and Fisheries” (Trout Unlimited). Town of Red Hook Conservation Advisory Council, 2009- present. Winnakee Land Trust. Easement evaluation committee, 2009-present. Sullivan Renaissance. Community project judge (volunteer), 2007-present. Seasonal evaluation of local Sullivan County projects emphasizing beautification, sustainability, and community-building. Presentation on incorporating habitat protection into beautification projects. Land Use, Development and Conservation Working Group, Red Hook, New York. Co-chair. 2004. Wildlife Conservation Society/Metropolitan Conservation Alliance, Rye, New York. Biodiversity Coordinator: Hudson Valley Programs. 2001-2002. The Metropolitan Conservation Alliance (MCA) works with local communities and decision makers to create a balance between economic development and conservation of natural resources in the Hudson Valley. This biodiversity project (in 15 townships/ 5 counties) was developed in partnership with the New York State Department of Environmental Conservation and Hudsonia at Bard College. Tasks included: site selection for field surveys; contacting landowners for access permission; supervision of field survey team, coordination of survey schedule; preparation of educational presentations and reports; meetings with town supervisors, planners, environmental groups, open space committees, land trusts and others to collect information on survey sites and provide assistance with local planning efforts that affect habitat including open space plans, wetland ordinances, master plans, and land acquisition plans. Cottonwood Environmental Consulting, Hamilton, Montana and Fort Collins, Colorado. Ecologist/ Wetland Specialist. 1991-1998. Conducted wetland delineations and prepared environmental assessments, environmental impact assessments, wildlife studies, and mitigation plans for development projects in Colorado. Worked with developers, local government officials, and citizens' groups on the mitigation of impacts for various development projects. Compiled information on threatened and endangered species. . Worked with the Larimer County Planning Department and local developers to compile guidelines for developers and an Environmental Assessment Form and Information Supplement containing mitigation 7 Affidavit: CPV guidelines and criteria for determining the significance of adverse impacts. This work included studies of appropriate buffer zones for riparian areas and wetlands. Laporte Area Planning Advisory Committee, Laporte, Colorado. Member and Chair. 1994-1998. ENTRIX, Inc., Fort Collins, Colorado. Natural Resource Specialist. 1990-1991. Served as discipline manager for terrestrial and aquatic biology studies. Prepared biological assessment for oil pipeline project in southern California, advising the project proponent on compliance with numerous federal and state permits and environmental impact assessment requirements. Field surveys of habitats including species composition were conducted from the Simi Valley to the coastal areas north of Santa Barbara. Compiled literature review and analysis of information pertaining to persistence of certain pesticides in the marine environment and in animal tissue samples (Houston, Texas). Conducted habitat and wildlife surveys for protected species including gopher tortoise (Arizona utilities pipeline project, Lake Havasu), and ocelot (southwest Texas). National Ecology Research Center (U.S. Fish and Wildlife Service), Fort Collins, Colorado. Wildlife Biologist and Technical Writer/Editor, 1986-1990. Developed wetland creation and restoration data base and wetland functions and values information for research and regulatory purposes. Developed presentations of examples of creation and restoration projects and wetland values and functions in different parts of the U.S. Compiled wetlands functions and values data base and presented findings at research conferences and in research reports. Served as project officer for research on the restoration of riparian ecosystems. Compiled research data on wetland restoration for wildlife habitat on gravel-mined areas, and on the design of restored and created wetlands. Assisted with vegetative plot monitoring for riparian studies on Boulder Creek. Laboratory for Information Science in Agriculture, Colorado State University, Fort Collins, Colorado, and Washington, D.C. Researcher and Operational Analyst, 1982-1984. Compiled state-of-the-art methods of assessing cumulative environmental impacts. Conducted extensive survey of the information needs for regulatory decision making processes in pesticide registration with the U.S. Environmental Protection Agency, Office of Pesticide Programs in Washington, D.C. Dynamac Corp., Fort Collins, Colorado. Information Specialist/Technical Writer, 1981-1982. Researched and prepared document on the legal and regulatory status (including case studies) of cumulative impact assessment. Project also involved evaluating methods for assessing cumulative impacts of energy development (e.g. coal mining) on fish and wildlife resources. Activities included literature review, preparation of research reports, and planning and participation (as a facilitator) for a national workshop on the impacts of coal development on fish and wildlife, in St. Louis, Missouri. Institute on Man and Science, Rensselaerville, New York. Research Associate, 1980-1981. Activities included research, report preparation, program coordination, workshop planning and small group facilitation. Projects related to the interface between science and human values, including the scientific basis for establishing effective compensation for victims of toxic substance-induced disease. Assisted with workshop planning and small group facilitation for Visual Impact Assessment and evaluation of the impacts of power transmission lines in Eugene, Oregon. City of Syracuse, New York. Senior Planner/Environmental Specialist, 1977-1980. 8 Affidavit: CPV Community Development Block Grant program. Conducted and attended neighborhood meetings and planning advisory board meetings as part of the city’s Community Development Block Grant program. Prepared and reviewed Environmental Impact Statements and assessments, conducted environmental reviews, implemented historic preservation procedures pertaining to National Register properties. Prepared testimony for public hearings, provided technical assistance to City of Syracuse, conducted and compiled citywide Urban Natural Resources Inventory and directed field work for open space and wetland inventories. Sharpe Environmental Education Center, Fishkill, New York. Teacher/Naturalist, 1975-1976. Organized a new nature center including freshwater biology lab, library, wildlife observation center, and public exhibits. Developed and taught environmental education programs for students and adults. Organized teacher workshops and lesson plans, led nature hikes, and taught classes in freshwater biology and ecology. Supervised resident and non-resident school groups (up to 200 students). SELECTED PUBLICATIONS AND REPORTS • • • • • • • • • • • • • • • • 9 Schneller-McDonald, K. 2015. Connecting the drops: A citizen’s guide for protecting water resources. Cornell University Press, Ithaca, NY. Schneller-McDonald, K. 2012. Habitat assessment, ecosystems, and a new approach for evaluating development impacts. Northeast Natural History Conference, Syracuse, New York. Schneller-McDonald, K. 2012. Water resources protection: development of local laws. Environmental Conservation Commission, Gardiner, New York. Schneller-McDonald, K. 2012. Woodstock wetlands and streams: local protection. Town of Woodstock, NY. Schneller-McDonald, K. 2012. Habitat assessment, ecosystems, and a new approach for evaluating development impacts. Northeast Natural History Conference, Syracuse, New York. Schneller-McDonald, K. 2012. Water resources protection: development of local laws. Powerpoint presentation for the Town of Gardiner Environmental Conservation Commission, Gardiner, New York. Schneller-McDonald, K. 2012. Lower Esopus watershed management plan: phase 1. Lower Esopus Watershed Partnership, Kingston, New York. Kiviat, E. and K. Schneller-McDonald. 2011. Fracking and biodiversity: unaddressed issues in the New York debate. News from Hudsonia 25:1&2. Kiviat, E. and K. Schneller-McDonald. 2011. Framework for assessing biodiversity impacts of hydrauli fracturing in the Marcellus Shale. 2011 Northeast Natural History Conference, Albany, NY. Schneller-McDonald, K. 2009. Natural Resources Inventory for the Towns of Montgomery and Wallkill, N.Y. Schneller-McDonald, K. 2008. “Habitat Assessment Guidelines for Wetland Habitat Protection” presented at the National Symposium: Wetlands 2008: Wetlands and Global Climate Change, Portland, Oregon. Schneller-McDonald, K. 2008. “Effective Watershed and Wetland Protection: Development of Local Laws” presented at the National Symposium: Wetlands 2008: Wetlands and Global Climate Change, Portland, Oregon. Schneller-McDonald, K. 2005. Wallkill River Corridor Study: Town of Montgomery, Orange County. Hickory Creek Consulting LLC., Red Hook, N.Y. Schneller-McDonald, K., S. Buff, F. Margiotta, L. Kingman. 2005. Habitat Assessment Guidelines: Town of Milan. Town of Milan Planning Board. Milan, New York. Schneller-McDonald, K. 1992-1995. Cottonwood Consulting. Reports include: • Spring Creek/Drake Road Crossing: Habitat Assessment and Stream Reconstruction Recommendations • Environmental Assessment Forms and Supplement for Larimer County, Colorado Schneller-McDonald, K., L.S. Ischinger and G.T. Auble. 1990. Wetland creation and restoration: description and summary of the literature. U.S. Fish and Wildlife Service Biological Report. 198 pp. Affidavit: CPV • • 10 Schneller-McDonald, K. 1987. Wetland creation/restoration data base. Pages 352-354 in: J. Zelazny and J.S. Feierabend, eds. Increasing our wetland resources conference. National Wildlife Federation, Washington, D.C. Schneller-McDonald, K. and G.C. Horak. 1986. Cumulative impact assessment: legal and regulatory status. U.S. Fish and Wildlife Service. Fort Collins, CO. 62 pp.