Eagle query delays boat landing decision

DAVID HULSE
Posted 5/10/17

ELDRED, NY — Attorney Martin Miller brought the decision-making aspect to a halt at the May 3 public hearing for a special zoning use permit to allow commercial boating access at the Spring …

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Eagle query delays boat landing decision

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ELDRED, NY — Attorney Martin Miller brought the decision-making aspect to a halt at the May 3 public hearing for a special zoning use permit to allow commercial boating access at the Spring House beach on River Road.

The permit is being sought by boat livery operator Rick Lander and property owner Kathleen Datys, and is vigorously opposed by neighbors protecting the values of increasingly upscale riverfront properties.

Miller, representing several objecting nearby property owners, argued that there had been “a serious problem with the environmental review,” in that federally protected bald eagles have nested across the river within a 660-foot radius of the beach and “there are eggs in the nest.”

“Federal law would seem to preclude this activity [within that radius], and the county and the board were not aware of this,” Miller said.“[The eagles] have been observed by residents and are within sight of the landing area,” Miller said.

Miller said that this is “new and particularly important” information that he only received on May 1. He argued that the standard short-form environmental review is inadequate to address it, and particulars of a permit should not be discussed until it is addressed.

Planning board chair Berry Hafkin said the board “will have to research the impacts.”

Harry Datys, representing Spring House owner Kathleen Datys, said, “If you’re submitting this, you have to submit proof. If it’s an environmental issue, I’m asking you to submit proof to us and the county.”

Lander asked for a National Park Service position. “The NPS knows where all the eagle’s nests are,” he said.

Miller said he would be “happy to comply” with Datys’ request.

Hafkin agreed that Miller’s submission “has to be documented somehow and go to the county also. We have to have guidance.”

It will also need to go to the Upper Delaware Council. Hafkin apologized earlier for his oversight in failing to forward the permit application to UDC for its review.

“Submit whatever you want,” planning board attorney Michael Davidoff told Miller.

Several of the neighbors testified about the “chaos” two years ago, when several hundred girls from a summer camp overshot the Spring House beach and alit all along properties on the road. Others complained about the livery drivers speeding and cursing, which Lander denied.

They raised issues including allegations of repeated police calls to the property, unpaid taxes, illegal fencing and violations of the River Management Plan.

“Community objections are not part of this process,” Hafkin said in response, adding that the board would not be bound by the scenic river guidelines. “I’m well aware of the River Management Plan. I’m bound by the town code. I’m not bound by the River Management Plan.”

The hearing finally was continued, apparently to continue in June.

[Editor’s note: The Town of Highland’s 2012 Comprehensive Plan includes as one of its strategies in its “Goals” section on page 39, “Ensure that the Town’s land use regulations continue to be in substantial conformance with the Land and Water Use Guidelines in the River Management Plan for land within the Congressionally-designated Upper Delaware Scenic and Recreational River Corridor.”]

About the law

The Bald and Golden Eagle Protection Act of 1940 defines various “disturbances” of bald eagles, one of which is causing “a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior.” As violations of law, each disturbance is punishable by $100,000 fine and one year’s imprisonment on a first offense.

The U.S. Fish and Wildlife Service has issued the 23-page National Bald Eagle Guidelines, which are specific in some areas and ambiguous in others. It recommends a 660-foot buffer radius from breeding eagles in open areas where the activity is visible from the nest or “as close as existing tolerated activity of similar scope.”

However, for “non-motorized recreation [including] hiking, camping, fishing, hunting, birdwatching, kayaking, canoeing…  If the activity will be visible or highly audible from the nest, maintain a 330-foot buffer during the breeding season, particularly where eagles are unaccustomed to such activity.”

The greatest variable is the birds themselves, according to the guidelines. “However, not all bald eagle pairs react to human activities in the same way. Some pairs nest successfully just dozens of yards from human activity, while others abandon nest sites in response to activities much farther away.”

The New York Department of Environmental Conservation (NYSDEC) follows the federal lead in most instances. It recommends that “activities, such as hiking, hunting, bird-watching, camping, fishing, photography and paddling, should all take place outside a minimum 330-foot buffer zone unless birds have demonstrated a tolerance for these activities. In some cases, the NYSDEC may recommend a 660-foot buffer or larger.”

 The nest in question is in PA, and Commonwealth has the largest recommended buffer. According to its Bald Eagle Nest Etiquette web page, “The Pennsylvania Game Commission encourages eagle watchers to stay at least 1,000 feet from bald eagle nests to reduce stress on the nesting eagles. Before visiting an eagle nest, please review bald eagle nest etiquette… Flushing eagles from a roost site or a feeding ground causes unnecessary stress and may expose the eagle to additional predators. So please keep your distance from eagle nests and roosts.”

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