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ECOLOGICAL IMPACTS
According to the DEIS, the “proposed action has a construction footprint of 6.51± acres [and will result]
in the physical disturbance and permanent loss of 4.32± acres of high-quality Coastal Oak-Beech forest,
1.19± acres of southern successional hardwood forest, and 0.54± acre of successional shrubland (see
Table 25, as excerpted from Table 6 of the Ecological Report)” (DEIS p.130). Total removal of 5.51 acres
of upland forest, including cutting down 634 trees and the destruction of the associate wildlife habitat
is not, as described in the DEIS, “forest disturbance,” it is forest/habitat destruction.
The DEIS Scope (p.9) notes that “the forest ecosystem of the subject property, contiguous with forest
protected by the Town, is the last relatively large block of native forest supplying clean groundwater
to Mattituck Inlet that has not been converted to farmland or interrupted by residential and
commercial development, with their attendant sanitary system and stormwater impacts” (emphasis
added).
DEIS Appendix N conflates the Project “site” with the Project “Area” resulting in significant distortions
in the ecological analyses included in the DEIS.
The Ecological Condi�ons and Impact Analysis report (DEIS Appendix N) is the basis for the DEIS’ analysis
of ecological impacts resul�ng from the Project.1 According to both documents: “Ecological surveys
were conducted at the 32.96-acre Strongs Marine property” (DEIS p. 118; Appendix N p.1). The report
repeatedly and consistently refers the en�re 32.96-acre tax parcel as the “site” or “project site” (DEIS
Appendix N pp. 16, 18, 24, 33). It makes no dis�nc�on between the R-2 zoned por�on of the tax parcel,
which includes only the access road, and the much smaller 16.46-acre M-2 zoned por�on which contains
the exis�ng SYC facility and the loca�ons of the proposed yacht storage buildings. It also makes no
reference to the actual “Project Area” defined in the DEIS as follows:
“The overall land area that would be affected by the proposed ac�on is approximately
6.51± acres, which includes the upland area to be excavated and/or cleared as well as
those land areas on the exis�ng SYC facility where infrastructure improvements would
be undertaken (hereina�er, the “Project Area”).” (DEIS p.5)
None of the graphics in Appendix N delineate the boundaries of the Project Area. One graphic (TS-4)
indicates the areas from which trees will be cleared, which roughly corresponds to the limits of the
Project. “[A]pproximately 4.59 acres of material would be excavated and removed to accommodate the
proposed ac�on” (DEIS p.5).2
1 DEIS Sec�on 2.4 (DEIS pp. 118-145) is, with only some minor editorial changes, (and the changes in certain numbers discussed
below) essen�ally iden�cal to the text in DEIS Appendix N.
2 The difference between the 6.51 acres and the 4.59 acres is presumably the “land areas on the exis�ng SYC facility where
infrastructure improvements would be undertaken.”
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Although the Project Area as defined in the DEIS is 6.51 acres, all of the analyses in the ecology are based
on the premise that all of the 32.96 acres of the tax parcel within which the Project is located comprise
the “project site.” They do not. This has resulted in significant distor�ons in the ecological report’s
analyses.
For example, Table 1, and a table included as part of Figure EC-1 in the report, indicate that coastal oak-
beech forest comprises 38.2 percent of the “site”. However, the same figures clearly indicates that the
por�ons of the M-2 por�on of the “site”, (excluding the paved/pervious3 surfaces associated with the
exis�ng marina structures) where the proposed storage buildings and retaining wall will be constructed,
is composed almost en�rely of coastal oak-beech forest (COMMENT FIGURE ECO-1).
Because it conflates the Project “site” with the Project area, the ecological report mischaracterizes the
land use history of the Project area:
“Between the mid-1950s and 1984, the site consisted of agricultural fields adjacent to
Mill Road, a small tree planta�on or orchard, forests, and a marina facility, as indicated
by aerial imagery from Suffolk County . . . During this �me, cleared land associated with
the agricultural and commercial marine uses accounted for approximately 58% (19.1
acres) of the 32.96 acre property. Aerial imagery of the site from 1962 and 1984 is
provided in Figures 1 and 2. The agricultural use on the western por�on of the site
appears to have been abandoned in the late 1980s. The exis�ng ecological communi�es
now present at the site include coastal oak-beech forests; successional habitats that
have developed on the former agricultural lands ”(emphasis added) (p. 1).
In fact, those aerial photographs clearly show, the “agricultural fields adjacent to Mill Road,
[and] small tree planta�on or orchard” correspond to the R-2 por�on of the Strong’s parcel and
are west of the actual Project Area. The same photos show that, except for the area occupied by
marina structures, almost all of the Project area is forested. The “successional habitats that have
developed on the former agricultural lands” are well west of the Project Area (COMMENT
FIGURE ECO-1).
Another example of how the DEIS atempts to “dilute” the reader’s percep�on of Project impacts, by
trea�ng the en�re tax parcel on which the Project is located as the Project “site,” is through the use of
percentages.4 Table 25 (DEIS p. 134; DEIS Appendix N Table 6, p. 21) indicates that the 5.51 acres of
upland forest affected consist of 4.32 acres of coastal oak-beech forest and 1.19 acres of successional
southern hardwoods. Because both the DEIS and Appendix N treat the en�re 34-acres parcel as the
“project site” they conclude that the Project will destroy 34.3% of the former and only 25.5% of the
3 The contexts in which the word “pervious” is used throughout Appendix N suggests that it should be “impervious.”
4 A “fact sheet” posted on the Applicant’s web site, and distributed at the Ma�tuck-Laurel Library on April 25, 2023, also
atempts to minimize the Project’s impacts by confla�ng “site” with “Project Area,” and employing misleading percentage
numbers: “Approximately 73% of all trees on the property would be retained, including approx.. 66% of the large hardwood
trees (trunks greater than 12’[sic] diameter).”
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later. The DEIS and Appendix H state that “[U]nder the proposed ac�on, approximately 66% of
these site’s trees greater than 12-inches in DBH will be preserved” (DEIS p.135, DEIS Appendix N
p.22). In fact, almost 100% of the trees within the “Project Area” will be destroyed.
“Edge Effects”
The destruc�on of almost six acres of forest will create new forest edges resul�ng in an “edge effect.”
DEIS Appendix N notes the nega�ve aspects of forest edges, including:
“higher ambient light levels, air and soil temperatures, and wind speed; and lower
rela�ve humidity and soil moisture . . .than forest interiors. . . These changes . . .
par�cularly increased light levels, foster prolifera�on of invasive plant species and
changes to the observed plant community due to differences in plant recruitment and
survivorship. . . [I]ncreased summer heat and drought stress to trees and vegeta�on due
to higher temperatures . . .” (Appendix N pp.34-35).5
Both the DEIS and DEIS Appendix N state that the
“new forest edge will likely result in an intensifica�on of the exis�ng edge effects at the
site, likely resul�ng in coloniza�on and increased growth of invasive plant species and
reduc�on in habitat quality for nes�ng songbirds, and increased abundance of predators
and invasive compe�tors. In addi�on, the proposed project may result in increased
numbers of invasive birds, such as European starling (Sternus vulgaris), house sparrow
(Parus domesticus), and brown-headed cowbird (Molothrus ater), as these birds thrive
in habitats created by humans and o�en nest on or in buildings “DEIS p.136, Appendix N
p.24).
Both the DEIS and Appendix N also acknowledge that “Some of the 8.28 acres of coastal oak beech
forests and 3.48 acres of successional forests that will be maintained under the proposed action will be
adversely impacted by the creation of new forest edges” (emphasis added) (DEIS p. 134, Appendix N
p.23). However, both fail to indicate that they are referring to the por�on of the Project land parcel
beyond the limits of the Project Area. In other words, they do not call out the fact that that the
negative ecological impacts associated with the edge effect will extend far beyond the limits of the
Project Area.
5 The sentence “Edge habitats in forests have higher ambient light levels, air and soil temperatures, and wind speed; and lower
rela�ve humidity and soil moisture (Chen et al, 1995; Gehlhausen et al, 2000) than forest interiors” has been edited out of the
DEIS main text.
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Impacts to the Mill Road Preserve6
The 27-acre Town -owned Mill Road Preserve abuts the southwest corner of the Project land parcel. The
Preserve and the Project parcel share an approximately 100-foot-long border. The Town of Southold paid
close to $900,000 (adjusted for infla�on) of tax-payer money to purchase the Preserve. At the �me of
purchase, the Town Board stated that “the purchase will serve to con�nue the sense of openness special
to this area of the hamlet of Ma�tuck, specifically, and the Town of Southold in general.” Clearly the
Town was making this area a priority for protec�on for the en�re Town. The Project is contrary to this
goal and undermines the purposes for which the Mill Road Preserve was created. There is no way that
the Project as proposed will not drama�cally and permanently diminish the quali�es of the landscape
and the area specifically prized and valued by the Town of Southold.
According to Appendix N (p.26), “edge effects are expected to extend approximately 195 feet into Mill
Road Preserve from the northeastern corner of Mill Road Preserve. The total area of the Mill Road
Preserve that may be poten�ally impacted by edge effects associated with the new clearing limit on the
Strong’s Yacht Center property is approximately 0.38 acres (16,419 SF)” (DEIS pp. xii, 136; Appendix N
p.26).
The DEIS ignores the fact that edge effects impac�ng the Preserve will not be limited to a small part of
the Preserve as claimed. The Project site and the Preserve form one ecosystem. The Project-induced
changes in microclimate, impac�ng flora and fauna, will permanently change the nature of the Preserve
and destroy the quali�es it was created to preserve. Wildlife iden�fied or expected in the Project Area,
as described in the DEIS and Appendix N, are also living in the Preserve. Destruc�on of the subject
property will, without a doubt, impact wildlife in the Preserve. Wildlife does not understand property
lines.
The DEIS, Appendix N, and the Applicant 7 in other venues, seek to minimize the extent of adverse
impacts to the Mill Road Preserve. Statements such as: “The area subject to new or enhanced edge
effects accounts for approximately 2% of the 18-acres of mature oak-beech forests in Mill Road
Preserve”; and “the magnitude of poten�al edge effects are expected to decrease over �me due to the
proposed landscaping comprised of na�ve deciduous and coniferous trees and shrubs” (DEIS p. 137
Appendix p.26), ignore the fact that any impacts to publicly-owned, permanently preserved land is
unacceptable.
6 Comments rela�ng to noise impacts on wildlife in and around the Mill Road Preserve are included in the atached Noise
Comments sec�on.
7 At the April 15, 2023 mee�ng of the Southold-Peconic Civic Associa�on, the Applicant displayed a slide saying that “poten�al
impacts to the preserve habitat will be limited to a 4/10-acre por�on or approximately 2% of the 25-acre preserve,” and
verbally stated that his consultant’s report (DEIS Appendix N) “is not saying that the trees are going to be damaged. They are
saying that the ground cover could poten�ally have a short-term impact . . . “
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The philosophy behind the acquisi�on of the property for the Mill Road Preserve makes clear that the
Town values this en�re ecosystem. This philosophy is also reflected in Southold’s Local Waterfront
Revitaliza�on Plan (LWRP), which specifically men�ons preserving areas around the inlet to ensure its
cri�cal natural environment. Degrada�on of the Preserve to construct two massive yacht storage
buildings is inconsistent with stated and specific Town mandates and goals. The nature of the Preserve
is predicated on maintaining the current ecosystem, as per the Town’s own document establishing the
area for protec�on. The change in light, forest, invasive species, created by the Project, completely
negate the investment made by the people of Southold. There is no way to mi�gate the drama�c
altera�on of the Preserve’s landscape resul�ng from the Project.
Tree Removal
According to the DEIS, during the two-week-long clearing and grubbing site prepara�on phase “one truck
with 30-yard trailer would be used to remove ground-up debris 3 to 4 �mes per day” (DEIS p. 211). This
translates to a maximum volume of 1,200 CY of vegeta�ve debris.8 Simple arithme�c and common
sense suggest that the actual volume of vegeta�ve debris associated with the removal of 634 trees, and
their stumps and roots, plus an unknown number of smaller trees, shrubs and ground vegeta�on will
generate orders of magnitude greater volumes of debris.
The average diameter of the 634 trees that will be removed is 12.8 inches. Approximately 80% of those
have an es�mated height of 80-feet, approximately 15% have an es�mated height of 50-feet, and the
remainder have an es�mated height of 30-feet (Appendix C in DEIS Appendix S). Eighty-foot-tall trees
with a diameter of 12-13 inches weigh 1.08 to 1.27 tons; 50-foot-tall trees with a diameter of 12-13
inches weigh 0.69 to 0.81 tons; and 30-foot-tall trees with a diameter of 12-13 inches weigh 0.53 to 0.50
tons.9 Almost all of these trees are hardwoods. This means the total weight of the trees being cut and
removed from the Project Area will range from approximately 2,500 to 3,000 tons.
FEMA es�mates that each ton of hardwood debris equates to 4 CY, and each ton of so�wood debris
corresponds to 6 CY.10 This means that the volume of tree debris that will be removed from the site is
approximately 10,000 CY to 12,000 CY.
According to FEMA, “Vegeta�ve debris consists of whole trees, tree stumps, tree branches, tree trunks,
and other leafy material. Depending on the size of the debris, the collec�on of vegeta�ve debris may
8 4 truckloads x 10 days x 30 CY/load = 1,200 CY
9 htps://the�mberlandinvestor.com/how-much-does-a-tree-weigh/. This data is specific to combined hardwoods only and is
based on data for New York State.
10 htps://www.fema.gov/sites/default/files/2020-07/fema_329_debris-es�ma�ng_field-guide_9-1-2010.pdf
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require the use of flat bed trucks, dump trucks, and grapple loaders. . . Vegeta�ve debris is bulky and
consumes a significant volume of landfill space if buried.”11
All of the above suggests that the DEIS has significantly underes�mated the volume of vegeta�ve debris
that will need to be removed from the Project Area, and has not evaluated the impacts associated with
removing cut trees from the Project Area. It also raises the possibility that the Applicant has not
disclosed that he intends to either sell the cut trees, or move them to the R-80 por�on of the Project
parcel.12 All of these possibili�es are associated with environmental impacts that have not been
addressed in the DEIS.
The Evergreen Wall
The Project includes the construc�on of an Evergreen Macro Gravity Retaining Wall System to stabilize
the newly created, up to 40± foot-high, slopes located north and west of the proposed yacht storage
buildings. It is an integral and essen�al part of the Project. DEIS Appendix H contains a report prepared
by the Project engineer on the Evergreen wall proposed for the Project. The report does not discuss the
plan�ng plan for the wall.13
The DEIS states that “Once in place and backfilled, seeding and use by bird species promote growth in
the trays that are built into the wall to create a “green” wall over a period of two-to-three years” (DEIS
pp. ii, 6, 290). No evidence to support this claim is included in the DEIS. “Photographs of similar walls on
Long Island and throughout the world have been included in Appendix H to document the use of the
wall and the visual appearance of this wall type” (DEIS p. 290). However, one cannot expect the
manufacturer to include examples of wall plan�ng failures. There are reports of green wall failures.14
“The proposed retaining wall features topsoil-filled plan�ng trays that will planted [sic] with na�ve
ground-vegeta�on, shrubs, and small trees” (DEIS p. xxxiv, 144). The DEIS does not men�on how many
plan�ng trays will be or the total size of the plan�ng area. A confused descrip�on of the proposed wall
plan�ngs is included in the DEIS:
Three sec�ons of the Evergreen concrete retaining wall would be filled with topsoil to
allow for seeding by wildlife. A 144±-foot long in linear distance and 124±-foot long in
linear distance topsoil-filled sec�on of the Evergreen concrete retaining wall would be
11 htps://portal.ct.gov/-/media/DEEP/forestry/icestorm/FEMAVegeta�veDebrisEligibilitypdf.pdf
12 See also the sec�on on traffic impacts in these comments.
13 The report is less than two pages long, followed by a copy of the manufacturer ’s brochure. The detailed wall specifica�ons in
the brochure never discusses plan�ngs.
14 htps://www.architectsjournal.co.uk/news/growing-pains-why-some-green-walls-die
Page | ECOLOGY - 7 Rev3c
located north and south of the western landscape schedule, respec�vely. A 370±-foot
long in linear distance topsoil-filled sec�on of the Evergreen concrete retaining wall
would be located west of the northern landscape schedule.
This descrip�on is inconsistent with the descrip�on on p. 140 of the DEIS and the landscape schedule on
the proposed landscaping plan included in DEIS Appendix C. That schedule indicates that the plan�ng
shelf on the west por�on of the retaining wall will be “±80 Lin Ft.” and the plan�ng shelf on the north
por�on of the retaining wall will be “±157 Lin Ft.”
Poten�al issues not addressed in the DEIS include the fact there is no men�on of a maintenance plan,
covering irriga�on, mulching or compos�ng. Without irriga�on and a maintenance plan, the plants will
likely die. In addi�on, there is no plan for replacement of plan�ngs should they die, and there is no
performance bond for the Evergreen wall plan�ngs. Should plan�ngs die, the dead vegeta�on also
creates a fire risk.
Inadequacies of Proposed Forest-Loss Mitigation
SEQRA requires that a proposed project “avoids or minimizes anticipated adverse impacts to the
maximum extent practicable” (SEQRA Handbook p.114, 147; 6 NYCRR 617.11d5). None of the mitigation
proposed to compensate for the Project’s adverse ecological impacts come anywhere close to meeting
this standard.
Mi�ga�on proposed in the DEIS to compensate for the loss 634 mature trees with heights up to 80-feet,
and an average diameter of 12.8-inches, plus an unknown number of smaller trees, will consist of
plan�ng 95 4–5-foot-high pitch pine trees.15 However, as shown on proposed landscape plan (DEIS
Appendix C), nine of these would be located around the newly installed propane tanks located east of
proposed yacht storage building No. 1. Fi�een would be located along the southern site boundary,
presumably to screen views from adjacent North Drive proper�es. However, all but six of these appear
to be at a much lower eleva�on than the nearby residences, and appear to be situated in a manner that
would screen only views of the propane tanks planned for this area. The remaining 71 pitch pines would
be located within a 27,333 sq � (0.63-acre) plan�ng area just beyond the top of the proposed Evergreen
retaining wall. According to the DEIS (p.250) and Appendix N (pp. 38-9) “[P]oten�al edge effects and
habitat degrada�on in the retained forests on the subject property and the Town of Southold Mill Road
Preserve will be minimized by [the 0.63-acre plan�ng area and Greenwall plan�ngs].”
Pitch pines grow at a rate of approximately one foot per year. Therefore, it would take between 50-70
years to reach the height of many of the deciduous trees that have been removed. Pitch pines seem to
15 Appendix N states that “approximately 135 trees will be established in a 27,333 SF plan�ng area along the new forest edge
(predominantly pitch pine)” (also Appendix N Table 7, p.22). This is clearly incorrect. Although DEIS Table 26 duplicates Table
7 in Appendix N, accompanying text indicates that 40 of the 135 trees consist of small trees that will be planted on the
proposed Evergreen retaining wall.
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have been selected because of their relatively rapid growth rate which will facilitate a minimal reduction
in the visual impact of the Project on surrounding properties, including the Mill Road Preserve.16 They
have not been selected because of their appropriateness for mitigating the loss of oak/beech forest.
Mature oak/beech forests and their habitats provide substantially more benefits to wildlife than newly
planted trees and shrubs. Replacing more than 600 hardwood deciduous trees, with 71 coniferous trees
is a significant qualitative as well as quantitative impact.
In the United States, including in Suffolk County, pitch pines are suffering and dying from the Southern
Pitch Pine Beetle, an invasive species considered to be one of the most destructive forest pests in the
country.17 Pitch pines are also being attacked by Pitch Canker. The possibility that these factors could
affect the viability of the proposed plantings is not considered in the DEIS. Furthermore, dead pitch pine
trees increase the risk of forest fires.
In addition to the 71 pitch pines, the 0.63 -acre planting area beyond the top of the retaining wall will
include 57 lowbush blueberry shrubs and 4,295 switchgrass plants. According to the DEIS, “Irrigation
supply is also proposed with the installation of automatic underground sprinkler systems with rain
sensors to serve new planting areas” (emphasis added) (DEIS pp. vi, 74). However, it is clear that the
“new planting areas” do not include the 0.63-acre area beyond the top of the proposed Evergreen
retaining wall, as no water source is available at the top of the retaining wall. Without irrigation, and a
maintenance plan (including replacement plantings), newly planted trees, shrubs, and grasses in this
area will likely die. The DEIS does not indicate if newly planted trees will be staked. It does not indicate if
mulching or compost, fertilization, or fencing to protect from deer browse,18 is planned. The Applicant
has not included a landscape performance bond as part of the Project.
The DEIS also states that the “Applicant will contribute 50 native trees (10-gallon container typical 1-inch
caliper, 5-6 feet tall) for installation at high-priority sites with the Town of Southold, as identified by the
Town Tree Committee, to enhance and beautify public grounds” (DEIS pp. iii, xxxiv, xxxv, 94, 43, 170,
177, 186, 310). This off-site attempt at compensatory mitigation does absolutely nothing to compensate
for the destruction of nearly 5.5 acres of forest habitat.
A more appropriate method of estimating the scale of required mitigation for the destruction of 634
large trees, rather than the arbitrary method used in the DEIS, would be the use of a formula 19
developed by the Council of Tree and Landscape Appraisers (CTLA).
16 See DEIS pp. xx, xxi, xxxv, xxxvii, 166, 181, 187, 236, 237, 240, 245
17 htps://www.dec.ny.gov/docs/lands_forests_pdf/spbccear�cle2.pdf
18 The Project does include construc�on of a 6-� high, black vinyl-clad l chain-link fence along the Project-side of the plan�ng
area at the top of the retaining wall. This will not affect damage from deer-browse.
19 The formula is: Tree Value = Base Value x Cross-sectional Area x Species Class x Condition Class x Location Class Base Value is
the dollar amount assigned to 1 square inch of a tree's trunk cross-sectional area and is typically based on the cost of the
largest available replacement plant of the same species.
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Impacts to Avian Fauna Including Threatened and Endangered Avian Species
The revised DEIS fails to adequately consider or evaluate the immediate and long-term threats posed to
the bird population on the Project site, and the surrounding area including the adjacent Southold Town-
owned Mill Road Preserve, and Mattituck Creek. It is inaccurate incomplete and or misleading.
The DEIS states that approximately 91 bird species were observed or expected to occur on the “site”.20
This is a significant underestimate. According to Cornell’s Ornithological E Bird list compiled in January
2023, approximately 117 bird species have been observed in the neighboring Mill Road Preserve and in
the waters and along the beaches of Mattituck Creek.
The DEIS acknowledges that “Wildlife species that are most likely to be adversely impacted by the
proposed action, specifically the reduction in Coastal Oak-Beech forest habitats . . . include birds” (DEIS
p. 137). However, it then attempts to minimize this by stating that bird species that are habitat
generalists are “unlikely to be adversely impacted by the proposed action, due to their general tolerance
for human activity” (DEIS pp. xiii, 137). It is absurd to suggest that the complete destruction of nearly
five acres of mature deciduous forest, and the accompanying construction noise impacts will be
“generally tolerated.” Noise generated by Project construction can also be expected to negatively
impact bird species. As the DEIS and Appendix N acknowledge
“Poten�al noise levels during day�me construc�on hours over [during] the 12-month
construc�on period . . . slightly overlap with the range of the chronic industrial levels . . .
that have been found to impact bird breeding produc�vity and are similar to the change
in sound levels that have been found to adversely impact bird community composi�on
and abundance, foraging and nes�ng behavior, and body condi�on” (DEIS p.140,
Appendix N p.32).21
The DEIS (pp. 131, 140) and DEIS Appendix N (pp.17, 33) state that “[N]o endangered, threatened, or
rare species or significant ecological communi�es were observed during the ecological surveys
conducted”. However, both documents refer to December 1, 2020 correspondence from the NY Natural
Heritage Program (Appendix A to DEIS Appendix N) which states that piping plovers have “been
documented nesting within 0.45 mile of the project site.” Neither document mentions that the same
correspondence, in relation to the piping plover, directs the Applicant to “contact the Permits staff at
the NYSDEC Region 1 Office, Division of Environmental Permits.” Piping Plovers are also a Federally
designated endangered species and have been documented by the US Fish and Wildlife Service (USFWS)
20 There are discrepancies between the DEIS and DEIS Appendix N in regard to the number of bird species (see below).
21 This topic is treated more extensively in the atached comments rela�ng specifically to noise impacts.
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and the North Fork Audubon Society (NFAS) to be breeding, nes�ng and foraging at nearby Breakwater
Beach and at Bailie Beach. Both NFAS and the Group for the East End have monitored and documented
piping plovers on these two sites for at least five years. The USFWS has documented Ma�tuck Creek
side of Bailie Beach as a significant foraging site for adult and fledgling Piping Plovers. Roseate Terns,
another federally designated endangered species have been documented foraging at that site. The DEIS
and Appendix N acknowledge that “Federal- and New York State-protected shorebirds such as
piping plover and least tern, nest on the nearby beaches adjacent to Ma�tuck Inlet and forage in
appropriate �dal wetlands, shoals and mudflats, and estuarine waters of Ma�tuck Creek” (DEIS p.,
Appendix N p.8). However, neither document ascribes any significance to this fact, or considers how the
Project might disrupt these species.
The DEIS and DEIS Appendix N both fail to note that federally endangered peregrine falcons, are
documented on the current Ornithology eBird list compiled on Cornell’s E bird list as being observed in
the Mill Road Preserve and in the Ma�tuck Creek area.
The DEIS and DEIS Appendix N both fail to note that bald eagles, a NYS threatened species, are
documented on Cornell eBird, as being reported in the Mill Road Preserve and along Ma�tuck Creek.
Several local bird experts believe Mill Road Preserve and the subject site are suitable habitats for bald
eagle nes�ng. Eagles prefer to nest in living trees especially pines but will nest in deciduous trees which
are close to water. Bald Eagles do not migrate and start nes�ng in mid to late winter. That exactly
corresponds to proposed �me the Project plans to conduct its forest clearance and site excava�on.
Bird species observed in the Project vicinity that are listed under NYS status of Special Concern, and have
documented on the Cornell eBird list as being present in the Project vicinity include the common
nighthawk, common loon, horned lark, osprey, and sharp shinned hawk. Only the later two are
men�oned in the DEIS and Appendix N.
Impacts to the Eastern Box Turtle
Both the DEIS and Appendix N acknowledge that the Eastern Box Turtle (Terrapene carolina), a New York
State Species of Special Concern, has been observed in the Project Area and is expected to be found in
any one of the vegetated upland habitats of the project parcel, and that they “are threatened by
development of their habitat” (Appendix N p. 19).
The DEIS states that the Project will “avoid or minimize” impacts to Eastern Box turtle by
“conducting sweeps or surveys for box turtles prior to commencement of clearing,
grading, and excavation activities, and relocation of any observed turtles to on-site
areas that will not be disturbed. Silt fencing or other barriers will be installed around
work areas to prevent turtles from returning to construction areas” (Appendix N p.34).
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This statement is misleading and inaccurate. The proposed “mitigation” is actually a danger to the
Eastern Box Turtles survival. It cannot be considered mitigation for the Project’s adverse impacts.
According to Karen Testa, founder and president of Turtle Rescue of the Hamptons Inc., the Eastern Box
Turtle hibernates underground from October through May. They live in underground burrows and in
tree stumps. Every NYS species of turtle (aquatic and terrestrial) nest on land and dig their undetectable
nests approximately 6-12” underground. Eastern Box Turtles are elusive by nature and their camouflage
makes it almost impossible to find them in a natural setting. Therefore, “sweeps or surveys” will not be
effective. They should not be considered mitigation for the Project’s adverse impact to the Eastern Box
Turtle.
Fencing and other barriers will not stop the Eastern Box Turtle’s strong ins�nct to return to its nes�ng
and feeding habitat. Turtles will ins�nc�vely travel along a barrier perimeter to find a weakened spot or
small opening. If turtles cannot find an opening, they will likely dig under the proposed fencing or
worse, become entangled, leading to injury and possible death. Turtles will also follow the fencing line,
which could lead to public roadways and vehicular traffic leading to injury and possible death.
Therefore, fencing or other barriers should not be considered mi�ga�on for the Project’s adverse
impacts. The fencing proposed for top of the Project’s retaining wall will have an unevaluated impact on
the Eastern Box Turtle.
Impacts to the Endangered Northern Long-Eared Bat
In its August 10, 2020 Posi�ve Declara�on, the Planning Board noted that “the Northern long- eared bat
(Myotis septentrionalis) a listed federally-threatened species under sec�on 4(d) of the federal
Endangered Species Act of 1973 could poten�ally occur on the parcel. The clearing of 3.94 acres of
woodland habitat could result in large, adverse impacts to the protected species.” The DEIS scope (p.8)
calls for the DEIS to iden�fy “animal species listed as endangered, threatened, and special concern (or
with other protec�ve status), . . . and suitability of habitat as roos�ng or summary foraging habitat for
protected New York State and Federally-protected bat species, . . . and measures to reduce poten�al
impacts.”
The DEIS (based on informa�on in the Appendix N)22 notes that the Project site
“contains habitat that could be u�lized by the northern long-eared bat [NLEB] (Myotis
septentrionalis) during the summer months for foraging and diurnal roos�ng. The
northern long-eared bat was listed as threatened by both the USFWS and New York
State in 2016 due to popula�on declines caused by white-nose syndrome (WNS), a
disease caused by an invasive fungus that kills affected hiberna�ng bats during the
winter months. Northern long-eared bats roost during the day�me in cavi�es or crevices
22 Appendix N was prepared by Dr. William Bowman of Land Use Ecological Services Inc.
Page | ECOLOGY - 12 Rev3c
of living trees and snags (i.e., standing dead trees) or underneath loose or exfolia�ng
bark. The site has large trees with loose bark, such as red maple and white oak, and
poten�al for cavi�es in live trees or snags. Due to the northern long-eared bat’s
poten�al use of diverse upland forest types and the presence of large trees with loose
bark, this species may u�lize the site for foraging and roos�ng habitat in the summer
months” (DEIS p. 131).
The DEIS also notes that
“The project site may provide habitat for these bat species during the summer months
and migra�on periods in the spring and autumn. There is growing evidence that
northern long-eared bat also overwinter on eastern Long Island, hiberna�ng in human
structures and foraging for winter-flying moths when temperatures exceed 4°C (Hoff,
2019). During the summer months, bats are expected to forage within the site’s forest,
forest edge, and successional shrubland habitats and over the wetlands and surface
waters of Ma�tuck Creek” (DEIS pp. 129-130; Appendix N p.16).
There is more to support the presence of NLEB on the Project site in addi�on to the presence of suitable
habitat. Both NLEB maternity roosts and winter hibernacula loca�ons have been iden�fied in
Southold.23,24 In addi�on, as the DEIS notes, “[R]ecent bat monitoring conducted by the NYSDEC has
suggested that northern long-eared bats on eastern Long Island are not sensi�ve to forest patch size and
may u�lize forest patch as small as one acre (Hoff, 2019)”25 (DEIS p.129, Appendix N p.16).
DEIS Appendix N, which is the basis for the statement in the DEIS that the NLEB is threatened, is dated
October 2022. However, the DEIS and Appendix N both neglect to men�on that on March 23, 2022,
more than six months earlier, the USFWS issued a proposed regulatory change that would reclassify
(uplist) the NLEB from “threatened” to “endangered.”26 That reclassifica�on took effect on March 31,
2023.
In New York, all federally endangered species that occur in the State are also afforded endangered status
under the New York Endangered Species Law and its implemen�ng regula�ons (6 CRR-NY 182).
The DEIS downplays the significance of the loss of NLEB habitat when it states that the “availability of
summer habitat is not limi�ng for northern long-eared bat. Accordingly, loss of summer habitat is not
23htps://www.fws.gov/sites/default/files/documents/508_northernlongeared_townswithmaternityroosts_1.pdf
24 htps://www.fws.gov/media/northern-long-eared-bat-winter-hibernacula-loca�ons-not-exact-loca�ons-we-recommend-least-1
25 The cited reference (Hoff 2019) is not included in the reference sec�on of either the DEIS or Appendix N.
26 The rule became final on November 29, 2022, and takes effect on March 31, 2023.
Page | ECOLOGY - 13 Rev3c
recognized as a threat to the conserva�on of this species” (USFWS, 2016). This statement is technically
correct. However, it is taken out of context. Since white-nose syndrome has led to popula�on declines
of 97-100% across most of its range, NLEB no longer occupy much of their suitable habitat. The species
is rare, and there is much more available habitat than areas actually containing this species.
Bats benefit local agriculture because they eat insects. When bats are around to eat insects, there are
fewer insect pests causing damage to crops, and farmers don't have to invest as much in pes�cides. The
loss of habitat would, at best, result in the reloca�on or reduc�on of the NLEB popula�on in the Project
vicinity with resul�ng impacts to the Ma�tuck area. According to the USFWS “[B]ecause of their
extremely low abundance due to white-nose syndrome, northern long-eared bat popula�ons can be
vulnerable to impacts from other stressors, such as forest habitat modifica�on.”27
As proposed mi�ga�on the Applicant states that “All tree clearing for the proposed ac�on will occur
during the winter months (between December 1 and February 28) in accordance with NYSDEC guidance
to avoid poten�al impacts to the New York State-threatened northern long-eared bat (Myotis
septentrionalis), as the site’s forests provide suitable summer roost habitat for this species” (DEIS pp.
xxxiv, 144-145; Appendix N p.40). However, according to the USFWS
“Winter tree clearing that removes roosts and fragments colonies could harm NLEBs by
increasing stress, reducing opportuni�es to roost in thermally suitable
microenvironments, and reducing benefits accrued from coopera�ng rearing of young.
The likelihood that any winter tree clearing project is likely to take (e.g., “harm”) a NLEB
depends on (1) the likelihood that the tree removal overlaps with an unknown NLEB
colony roos�ng area, (2) the extent of tree (roost) removal, (3) the intensity of tree
removal, (4) the availability of an alterna�ng [sic] roos�ng area known to the colony,
and (5) whether roosts are likely to be limi�ng a�er tree removal. NLEBs ability to
persist in an area from which roosts have been removed may be related to the number
of roosts used by the species, the degree of roost specializa�on, and local roost
availability. NLEBs may use many roosts within a single season” (USFWS 2023:13).28
“The poten�al for effects to NLEBs from tree removal during the unoccupied �meframe
is based on the well-documented knowledge that NLEBs exhibit strong fidelity to their
summer roos�ng areas and foraging habitat (Kurta et al. 2002; Garner and Gardner
1992; USFWS 2007). NLEBs that return to their summer roos�ng area and find it
removed must find new roost trees (Kurta and Rice 2002). This extra energy expenditure
could detract from an individual’s ability to carry out necessary func�ons a�er migra�on
27 Interim Voluntary Guidance for the Northern Long-Eared Bat: Forest Habitat Modifica�on (USFWS March 6, 2023). The
purpose of the guidance “is to assist stakeholders with non-federal ac�ons involving forest habitat modifica�on to address
concerns about compliance with the Endangered Species Act and promote conserva�on of northern long-eared bat
popula�ons.”
28 Standing Analysis and Implementation Plan – Northern Long-Eared Bat Assisted Determination Key (USFWS, March 2023).
Page | ECOLOGY - 14 Rev3c
(e.g., thermoregula�on during cool spring weather, gesta�on) or cope with other
stressors (e.g., unseasonably cold temperatures, WNS) (Kurta and Rice 2002).
Addi�onally, the removal of maternity roost trees can lead to the fragmenta�on or
break up of the maternity colony (Sparks et al. 2003, Silvis et al. 2014)” (USFWS
2023:23).
Since the Project involves impacts (e.g., forest clearance) to NLEB habitats, surveys must be conducted
to determine if the NLEB is present in the Project Area.29 Those surveys must be conducted prior to
Project approval and before any tree removal is permitted in the Project Area.30
No surveys designed to determine if Northern Long-Eared Bats are in the Project Area have been
conducted.
Other DEIS Data Discrepancies and Inadequacies
The DEIS scope calls for ecological resources studies to be “detailed and undertaken over a mul�-season
period (all four seasons) to properly assess poten�al impacts”. DEIS Appendix N indicates that ecological
surveys of the Project site took place on September 18, 2020; October 21, 2020; January 17, 2021; May
13, 2021; July 19-28; 2021; and August 24, 2021. Other than for the summer, the required four-season
study consisted of only a single day in each of the other three seasons.
The December 1, 2020 correspondence from the NY Natural Heritage Program also points out that “[F]or
most sites, comprehensive field surveys have not been conducted. We cannot provide a defini�ve
statement on the presence or absence of all rare or state-listed species or significant natural
communi�es. Depending on the nature of the project and the condi�ons at the project site, further
informa�on from on-site surveys or other resources may be required to fully assess impacts on biological
resources”. This significant qualifica�on is not included in the main DEIS text.
As noted above, the DEIS text and Appendix N are almost iden�cal. However, there are some significant
discrepancies and inconsistencies between the DEIS and Appendix N. The November 2021 version of
29 Acous�c surveying for bats is a technique involving the listening and/or recording of ultrasound produced by bats. In 2022
USFWS issued guidance on how NLEB surveys should be conducted.
htps://www.fws.gov/sites/default/files/documents/USFWS_Range-wide_IBat_%26_NLEB_Survey_Guidelines_2022.03.29.pdf
30 As reported on December 7, 2022 in the Albany Times Union, (Northern long-eared bats now on endangered species list: Their
fate was at issue when trees were clear-cut for Costco site), a 2020 proposal to construct a COSTCO discount warehouse in
Albany County raised concerns because tree cu�ng in advance of the project site would destroy NLEB habitat. Even though
the SEQRA process had not been completed, the developer cleared the project site in order to do the clearing during the
winter htps://www.�mesunion.com/news/ar�cle/Northern-long-earred-bats-are-now-on-the-17635149.php.
This is par�cularly relevant to the Planning Board’s considera�on of this project. Southold code enforcement officers have
previously issued stop work orders to the Applicant for improperly clearing tress from the Project site (see accompanying
comments on visual impacts which include detailed informa�on and photographs).
Page | ECOLOGY - 15 Rev3c
Appendix N, which accompanied the December 2021 version of the DEIS included the following
statement in its introduc�on to exis�ng condi�ons:
“A total of 122 vascular plant species were observed, including 53 woody plants, 64
herbaceous plants, and three ferns (Table 2). Addi�onally, 91 birds, 20 mammals and
three herpe�les were observed or are expected to occur on the site.”
However, the October 2022 version of Appendix N, which accompanies the revised November 2022
DEIS, has replaced that statement with:
A total of 105 vascular plant species were observed, including 49 woody plants, 53
herbaceous plants, and three ferns (Table 2). Addi�onally, 84 birds, 20 mammals and
three herpe�les were observed or are expected to occur on the site.”
No explana�on of this change, which would seemingly reduce the magnitude of the Project’s impact on
flora and fauna, is provided. The revised DEIS failed to make the corresponding change. This is yet
another example of the carelessness with which the DEIS has been prepared.31
A tree survey of all site trees greater than 6-inches in diameter (Appendix B to the DEIS Appendix N)
indicates that the loss of these forest areas will result in the clearing/removal of approximately 634
trees (Table 7). However, the referenced appendix contains only a single relevant figure (TS-4). That
figure shows the loca�ons of all large trees on the tax parcel associated with the Project. The
accompanying key, purports to iden�fy each tree by specie. It is completely unreadable. It lists 31
species (by code) and depicts them all in various shades of indis�nguishable green. A detailed table,
lis�ng all of the trees to be cut within the Project Area, by specie, diameter, and es�mated height can be
found in Appendix C to DEIS Appendix S—the DEIS’ air quality analysis. The absence of a reference key
to this very detailed and relevant informa�on in the both the DEIS, and its accompanying ecological
report (Appendix N), hampers a reader’s ability to evaluate this informa�on. A reader of the DEIS
concerned with ecological impacts is unlikely to come across this data, which is best described as
“buried,” in an appendix to an appendix dealing with an unrelated topic.32
Appendix N also contain discrepancies in its descrip�ons of noise impacts, significantly underes�ma�ng
the poten�al impact of Project-generated noise on wildlife:
31 Another egregious example is the unexplained change in numbers in the noise analyses which accompanied the original and
revised versions of the EIS. It must be remembered that the preparers of the original version of the DEIS could not predict
that the Planning Board would reject it as inadequate. Had the Planning Board not done so, the preparers would not have
had an opportunity to make the unexplained changes, and the Planning Board would have had to rely on inaccurate
Applicant-provided informa�on when considering the Project’s environmental impacts.
32 Presumably the tree survey data is included in the air quality sec�on because it was used in an analysis of carbon
sequestra�on. That does not explain why Appendix N and the DEIS never make reference to it. The data was presumably
collected by William Bowman of Land Use Ecological Services, the preparer of the Appendix N.
Page | ECOLOGY - 16 Rev3c
Analysis of poten�al noise levels at nearby residen�al sites (such as 5106 West Mill
Road, 800 North Drive, and 805 North Drive) indicate that noise levels in the property’s
natural areas may increase temporarily during project construc�on to 66 dBA during
tree removal/grubbing (in December), 76 dBA during excava�on phases (between
December to June), and 71 dbA during building and drainage construc�on phases
(between June to November). Under the proposed build condi�ons, noise levels are
expected to increase slightly by 0-4 dbA to 44-48 dbA.
However, according to table in the Project Acous�c Report (DEIS Appendix R), noise levels on North
Drive during construc�on will be as high as 74 dBA—not 66 dBA-- during tree removal/grubbing; 89
dBA—not 76 dBA during excava�on phases; and 84 dBA—not 71 dBA during building and drainage
construc�on phases.
Together, the discrepancies noted here, are sufficient reason to challenge the validity of the ecological
analyses conducted for the Project.
Page | ECOLOGY - 17 Rev3c
COMMENT FIGURE ECO-1
Modified to show the boundary between the M-II and R-80 zones