June 18, 2010

Rebecca Crist THIS LETTER & ATTACHED FIGURE SHALL NYS DEC Region 3 NOT BE MADE AVAILABLE TO THE PUBLIC 21 South Putt Corners Road VIA THE PUBLIC OFFICERS LAW (FOIL) New Paltz, New York 12561-1620

RE: Timber Rattlesnake Presence on HRVR Property – A Call for Rigorous Field Investigation to Locate Den Location(s), Basking Areas & Migratory Pathways

Dear Ms. Crist,

This report and request are provided on behalf of Save the Lakes. In it, I provide documentation I have amassed to date on timber rattlesnake presence on and near the HRVR property currently being evaluated for potential development. As you aware, the timber rattlesnake is a NYS Threatened Species afforded protection under New York State’s Endangered Species Act (ESA) which was enacted in 1972 to protect species whose continued survival is in jeopardy. The ESA was amended in 1979 and 1981 to include the addition of Threatened Species. Recent Supreme Court and Appellate Division decisions in State vs. Sour Mountain Realty, Inc. affirm New York’s ESA, recognizing that:

1) Adverse modification of habitat may jeopardize the continued existence of endangered species; 2) Disturbing, harrying or worrying in the ESA include habitat modification; 3) Habitat modification and/or degradation includes disruption and prevention of normal dispersal, movement, foraging, mating, and migration patterns; and 4) Habitat modification may constitute an illegal take of an endangered or threatened species under the ESA.

Save the Lakes is particularly concerned that, to date, adequate documentation of timber rattlesnake presence, den locations, basking areas, and migratory pathways has not occurred. I have attached a GIS map I constructed titled “Documented Timber Rattlesnake Sightings in the HRVR Development Area”. On it, there are five locations where my investigations, to date, document continued rattlesnake presence through time. These locations are numbered 1 to 5. The details of each sighting follow:

1) Two rattlesnakes (or the same snake seen twice) were observed basking on Indian Rock (UTM 576060mE, 4635373mN NAD 83) directly above the shoreline of Williams Lake in April 2006. Sightings were spaced apart by a few weeks. A guest of the Kniffen family observed the rattlesnakes – Wayne Ramsey. Mr. Ramsey may be contacted at [email protected] or at 845-658-3588. 2) A single rattlesnake was observed by Adam Watson (845-532-2999) at this location. Based on Mr. Watson’s report to me, the rattlesnake was located alongside the rail bed close to where an historic mine is present on both sides of the rail bed. Based on GIS map interpretation, this is close to UTM 576820mE 4636049mN. This sighting occurred approximately 15 years ago around 1995.

3) 4) & 5) Dr. Kurtis Burmeister reports that he saw numerous rattlesnakes present on both peninsulas that project into Fourth Lake and also along the northeast flank of Hickory Bush Hill, somewhat south of the landfill/recycling center. These sightings occurred during field work that he conducted throughout the area while mapping the bedrock geology as part of the work associated with completion of his PhD thesis. This work was conducted in or around 2003. Dr. Burmeister may be contacted at [email protected] or at 209-946-2398. While I don’t have exact coordinates of each of his rattlesnake sightings, based on the location descriptions he provided, they are approximately:

Fourth Lake southern peninsula: UTM 576461mE 4635888mN Fourth Lake northern peninsula: UTM 576547mE 4636735mN Hickory Bush Hill flank approximate, general, location: UTM 577544mE 4636208mN

While you are free to contact these individuals, they have already provided all the information they knew. This information is freely shared here.

There Must Be One Or More Undocumented Rattlesnake Den Locations

The presence of numerous timber rattlesnake sightings over time in the HRVR property area indicates that one or more undocumented den locations are nearby. This may be concluded, in part, based on the following information which I have gleaned from research HydroQuest conducted for the Sterling Forest Partnership specific to assessing preferred rattlesnake habitat and location factors in the Sterling Forge Estates Project Area in the Hudson Highlands area of New York State and from conversations with Dr. Bill Brown and Al Breisch, both respected rattlesnake experts. Furthermore, the local name of “Rattlesnake Point” for the peninsula of land that extends southward into Fourth Lake denotes the known long-term presence of timber rattlesnakes in the area (see attached map). This peninsula may host a rattlesnake hibernacula or den site.

Rattlesnake radio telemetry studies were conducted proximal to the proposed Sterling Forge development site, now part of Sterling Forest. Gordon’s Den is located south of the proposed project site and is believed to contain one of the largest timber rattlesnake populations in New York State. Telemetry studies revealed a maximum rattlesnake movement distance of 1.83 miles from Gordon’s Den. Thus, at least one rattlesnake in the area was documented as moving a distance of 1.83 miles. It is therefore likely that other rattlesnakes may also move this distance.

It is my understanding that the maximum distance any rattlesnake has been documented as moving from a den site is roughly on the order of 4.3 miles (Al Breisch, pers. comm.). Studies of rattlesnake movement distances further support the 1.83 mile normal migration distance and this maximum travel distance. The Minnesota Department of Natural Resources (2009) cite the work of Reinert and Zappalorti (1988) and Hammerson and Lemieux (2001) who found that 2 adult males generally stay within 2.17 miles of the hibernacula and nongravid females range an average of 1.43 miles or less. Travel distances for gravid females are considerably less. Martin (1992) reported gravid female travel distances ranging from 82 feet to 0.78 miles from dens.

The Minnesota Department of Natural Resources (2009) reports a maximum range of 4.0 miles from hibernacula during the peak of the active season for foraging and loafing. Laidig and Golden (2004) monitored nine timber rattlesnakes over three field seasons (2001-2003) in the New Jersey Pinelands. The nine transmitter-equipped snakes traversed a region encompassing 1500 ha during the study period. The two largest males had the largest activity ranges, both had total travel-distances of greater than 11 km and traveled over 3 km (1.86 mi) from the hibernacula in both years when they were tracked for the entire active season. A Fact Sheet put out by the Catskill Mountaineer (2001-2010) states that in most areas that support rattlesnakes, they will be found within 1 square mile. They cite summer travel distances from 1.3 to 2.5 miles from their dens and a maximum rattlesnake travel distance of around 4.5 miles.

Clearly, there must be one or more den locations on or near to the HRVR property to support the rattlesnake population sightings we have thus far documented. Based on telemetry studies, it is reasonable to conclude that these timber rattlesnake dens are situated within 1.83 miles of each of the sighting locations documented on the attached color GIS map. If, for the sake of argument, we assume that a den location is present at location number 5 on the GIS map, or for that matter at any of the other numbered locations, we can readily see that all sightings lie roughly within a one-mile radius. This distance is well within the maximum rattlesnake movement distance of 1.83 miles documented near Gordon’s Den.

Is it possible that the timber rattlesnakes documented on the attached GIS map have simply spilled over from other known, documented, dens? The answer is no. Careful plotting of the nearest known rattlesnake den locations (based on confidential NYS DEC rattlesnake data), coupled with distance measurements made using GIS technology, reveal the following distances to the nearest dens from Williams Lake:

South-southwest 5.7 miles Southwest 14.7 miles West-northwest 12.0 miles Northwest 17.0 miles North 14.0 miles Southeast 27.0 miles (far beyond Hudson River)

Where, then, are the rattlesnakes that have been sighted throughout the HRVR property area coming from? There would appear to be only one viable answer that fits the available rattlesnake den data and the telemetry-based maximum rattlesnake movement distance of about 1.83 miles – this is that there are one or more undocumented den sites on or near the HRVR property. This or these locations need to be found.

Review of the attached GIS map reveals that there are favorable wooded forest and topographic conditions within a largely unfragmented forest tract that may comprise one of the last strongholds of the threatened timber rattlesnake within New York State. Planned development may pose a significant adverse environmental risk to this population through a combination of adverse modification of habitat, disturbance and harrying of rattlesnakes, and disruption and prevention of normal dispersal, movement, foraging, mating, and migration patterns. As such, we are concerned that appropriately detailed studies be conducted, during critical time periods, to 3 insure that an illegal take of a threatened species does not occur as a result of habitat modification. This will require documentation of the existing, resident, rattlesnake population, inclusive of radio telemetry studies to determine migratory routes between rattlesnake dens, basking areas, foraging habitat and, quite likely, through areas of planned development.

The importance of preserving intact the habitat of a threatened species and its connectivity within unfragmented forest is underscored in the restoration measures recommended in the Minnesota Department of Natural Resources’ Timber Rattlesnake Recovery Plan (2009, page 29):

“In addition to restoring den site areas, surrounding habitat is critical for nongravid and male snakes. These metapopulation dynamics are important for long-term survival of timber rattlesnakes. Additionally, surrounding habitat may be colonized, or in some cases, re-colonized, expanding the population. Each viable den should have at least one auxiliary den that provides compatible habitat and connectivity. Thus, an additional 2562 acres (rounded up to 2600 acres) of rattlesnake habitat should be restored within 3.6 km (2 mi) of a viable den. This distance is based on the longest dispersal range of male timber rattlesnakes.”

Laidig and Golden (2004) discuss rattlesnake habitat protection:

“The encroachment of housing developments on critical habitat is considered one of the major present-day threats to timber rattlesnake populations throughout much of its geographical range (Brown 1993). Brown (1993) suggested that land protection (including the den and areas of habitat around the den) was critical to maintaining a viable timber rattlesnake population. A protected area of 1.5 miles (2.4 km) in radius around the den was recommended as adequate to protect most females and many of the males with the caveat that this area may not protect the whole population.”

The attached HydroQuest figure portrays potential timber rattlesnake migration/travel pathways interconnecting documented sighting locations in the Williams-Fourth Lake area. The routes were selected to 1) avoid areas of vertical and other mine openings, 2) follow graded and cleared paths (e.g., rail bed, power line), 3) follow favorable topography, and 4) connect known sighting locations. Even if these pathways are proven, based on radio telemetry study, to be somewhat different from what is depicted, they are not likely to be far off – as there must be travel routes frequented by rattlesnakes to accommodate their movement between the five locations documented to date. At this time, most of the area between the sighting locations remains unfragmented, connected, forest habitat – much like that which the Minnesota Department of Natural Resources seeks to protect to encourage restoration of rattlesnake habitat. Reference to this same figure shows that HRVR plans to construct numerous homes, cabins, and roads within these likely rattlesnake travel pathways. Thus, as addressed in the Endangered Species Act, modification of habitat and degradation of established rattlesnake movement and migration patterns is an assured consequence of site blasting, excavation for utility lines, bulldozing, cut and fill, site grading, roadway construction, opening of forest canopy, vehicular traffic, regular presence of family pets, possible removal of rattlesnake food sources, and other development- related habitat infringements. Habitat modification and development within the area of likely rattlesnake travel routes may constitute an illegal take of a threatened species under the Endangered Species Act. It is important that HRVR fully undertake a comprehensive rattlesnake study as part of their DEIS work and then, based on the results of radio telemetric tracking of rattlesnakes, modify their project design to avoid infringement into 4 critical rattlesnake habitat. We request that you require HRVR to fully address all the issues discussed in this report.

As we learn of additional rattlesnake sightings throughout the area, we will share this information with you. Because of the confidential nature of rattlesnake data discussed in this report and portrayed on the attached map, we respectfully request that it be exempt from the provisions of Sections 84-9 of Article 6 of the Public Officers Law (“FOIL”). This document is intended solely for NYS DEC, for you to share with the project applicant , and for Save the Lakes.

Here, we have freely shared our information. In return, we ask that you apprise us of the nature and status of planned or ongoing timber rattlesnake investigation work. We look forward to your response. Thank you. Sincerely yours,

Paul A. Rubin HydroQuest

References Cited

Brown, W. S., 1993, Biology, status, and management of the timber rattlesnake (Crotalus horridus): a guide for conservation. Society for the Study of Amphibians and Reptiles, Lawrence, Kansas, Herpetological Circular No. 22.

Catskill Mountaineer, 2001-2010, Fact Sheet: Timber Rattlesnakes and Copperhead Snakes. Web page: http://catskillmountaineer.com/animals-snakes.html

Hammerson, G. A. and Lemieux, R., 2001, Population status, movements, and habitat use of timber rattlesnakes (Crotalus horridus) in central Connecticut, 1998-2000: final report. Unpublished report submitted to Connecticut Department of Environmental Protection, Hartford. 88 pp.

Laidig, K. J. and Golden, D. M., 2004, Assessing timber rattlesnake movements near a residential development and locating new hibernacula in the New Jersey Pinelands. Pinelands Commission, New Lisbon, N.J. 29 pp.

Martin, W. H., 1992, Phenology of the timber rattlesnake (Crotalus horridus) in an unglaciated section of the Appalachian Mountains. Pages 259-277 in Campbell, J. A. and E. D. Brodie, Jr. Biology of the pit vipers. Selva, Tyler, Texas.

Minnesota Department of Natural Resources Division of Ecological Resources, April 2009, Timber Rattlesnake Recovery Plan (Crotalus horridus), 47 pp.

Reinert, H. K. and Zappalorti, R. T., 1988, Timber rattlesnakes (Crotalus horridus) of the Pine Barrens: their movement patterns and habitat preference. Copeia 1988: 964-978.

CC: Save the Lakes

5 Marc Gerstman, Esq. Warren Reiss, Esq.

6