HUDSON NORTH BAY'S DIMINUTIVE BITTERN

The Least Bittern (Ixobrachus exilis) is the Western Hemisphere's smallest heron. Roughly the size of a robin, this chestnut, black, and buff-colored bird is extremely secretive in its habits.

Listed as Threatened in New York, the species summers in three principal areas of the state. The most important breeding grounds in one of these regions is the North Bay and Stockport Flats complex, along with the Tivoli marsh.

Least Bitterns prefer marshes larger than 12 acres, where they generally nest alone. In very large marshes they're known to concentrate in loose colonies, as they do in Hudson and Greenport.

In our region, the bird's preferred freshwater tidal marshes are themselves rare. Throughout the state, "the majority of occurrences [of these marshes] are on the Hudson River, with over 75% in Greene, Columbia, and Dutchess Counties" (New York Natural Heritage Program).

In the 1980s when the NYS Department of State began in earnest to protect the state's coastal resources - including traditional uses such as hunting, fishing and recreation - the North Bay was designated a Significant Coastal Fish and Wildlife Habitat.

In 2004, as a means to draw attention to the bay's vulnerable water birds, but especially North Bay's breeding population of Least Bitterns, the National Audubon Society included the Hudson North Bay (first bay) in its "Important Bird Area Program."

Much remains unknown about this rarely encountered heron. With their long toes, bitterns make superb climbers through emergent vegetation, foraging in deeper waters than most other wading birds.

When approached, they tend to slip away unseen. To show how easily they pass between the crowded stems of cattails, flags, and arum, John James Audubon conducted the following experiment with a live bittern. "This bird was able to contract its body so as to pass between two books set an inch apart without moving them [yet] when the bird was dead its body measured two and a quarter inches in diameter" (Forbush, 1925).

Least Bitterns are feeble fliers at ground level and are almost never seen in migration. In May 2013, a single migrating individual flew at a height of 200 feet above the Hudson River while dropping into the city's South Bay. (This remains the only bittern record for the smaller and busier South Bay.)

In New York, the birds rarely arrive before May from their wintering grounds in the southern United States, the Caribbean, Mexico, and Central America. After the young are fledged, they rarely linger beyond September. Least Bitterns have never been recorded in winter in upstate New York.

On November 19, 2012, a single Least Bittern was observed in Hudson's first bay surpassing the state record previously held this far north since recording began in the 19th century (see "Kingbird"; New York State Ornithological Union, Vol. 63 No. 1, March 2013, p. 66).

Highly sensitive to human disturbance, Least Bitterns can still be found near urban environments, such as the Hudson North Bay. As quietly, they will disappear from areas subject to new development.

Among its known pressures are habitat loss, predation, exotic flora, and water pollution.

The DEC's New York Natural Heritage Program recommends the prevention of chemical contamination, siltation, eutrophication, and other forms of pollution in marsh habitats as a Least Bittern conservation strategy for the state. It cites "run-off from development" as a pressure on the bird's food source.

Population studies which require specialized surveying techniques are still being developed (in the mid-Hudson area the Canada Protocol is used for surveying). Although population and demographics are too poorly understood for purposes of federal regulation, Least Bitterns are provided special protections on a state-by-state basis.

The Least Bittern is Endangered in Maine, Massachusetts, and Pennsylvania. It is Threatened in New York, Connecticut, Rhode Island, Ohio, and Michigan, and Threatened in Canada from Manitoba to New Brunswick. (“Threatened” means that although a species is not endangered, it's likely to become endangered in the foreseeable future if steps are not taken to address the factors which threaten it.) Least Bittern is a species of Special Concern in Vermont, New Jersey and New Hampshire.

Any habitat in New York which supports Least Bitterns is a state-wide asset deserving of special attention. It should be recognized, however, that any added scrutiny favoring the conservation of these birds and their habitats is not necessarily automatic.

For this reason, Least Bittern habitat protection often depends on local knowledge and local interest.

The Shortnose Sturgeon - Hudson's own Endangered Fish

Sturgeon are among the world's most primitive fish, looking very like their Cretaceous ancestors of 100 million years ago.

In one season or another, the Shortnose Sturgeon (Acipenser brevirostrum) is found in all its life stages in the deepest waters off the City of Hudson.

North America's smallest sturgeon, this species can reach a maximum length of 4.7 feet and 50.7 pounds, though it generally doesn't exceed 3.5 feet. Females live longest, sometimes well into their 60s.

Never plentiful, in the 19th century the Shortnose Sturgeon was described as "not uncommon" in the Hudson River. In the 20th century, however, heavy fishing would take a toll on the "roundnosers" or "pinksters," so called by the rivermen. (It's likely the sturgeon's bony plates or "scutes" are preserved beneath Furgary, the North Bay site of a 19th century fish market.)

Today the Shortnose Sturgeon is a federally Endangered species; harming or harassing them is punishable by a $20,000 fine.

Toxins in the river inevitably find their way to the benthos, the deepest-lying community in which all sturgeon are found. With their long life-spans, sturgeon are predisposed to long-term contaminant exposure.

As with other Hudson River species, sturgeon are contaminated with PCBs, with the highest concentrations in the brain and gonadal tissues. Other contaminants such as toxic metals lead to growth retardation, reproductive impairment, and lesions. The Shortnose Sturgeon is particularly susceptible to fin rot.

Early life stages are generally more susceptible to pollutant stresses than older ones. A 1993 study found that byproducts of the 19th century coal distillation and gasification process are particularly toxic to Shortnose Sturgeon embryos and larvae. When considering the cumulative negative impacts on sturgeon from the City of Hudson, the coal tars which continue to seep from sediments at the city's waterfront are significant.

Like many Hudson River fish, the Shortnose Sturgeon is migratory, using the entire estuary during its life cycle. Spawning takes place between Coxsackie and the Troy dam in the last two weeks of April and the first two weeks of May.

Eggs take 10-13 days to hatch, and in another 8-12 days the larval sturgeon absorb their yolk sacs. At this point, larvae increasingly drift with the strong current in the deepest river channel and disperse downstream through summer.

Consistent with this pattern, a 1979 population study by W.L. Dovel captured larval Shortnose Sturgeon off the City of Hudson and older first-year young off Germantown.

Figuring the river's progress on its way to the ocean, dates to expect large numbers of larvae in Hudson from spawning grounds to the north range from late-May to July.

When the larvae reach Hudson, they sink down into the first sustained stretch of deep water on their southward journey, 47 feet deep in the channel off Hudson. This crucial deep-water nursery begins at the mouth of the city's North Bay and stretches nearly uninterrupted to the mouth of the Roeliff Jansen Kill in Livingston.

Hudson North Bay's Diminutive Heron

Testimony by the South Bay Task Force to the City of Hudson Common Council 

Regarding Likely Adverse Environmental Impacts from the Proposed Storm Sewer Separation Project

May 19, 2015 

Good evening. My name is Timothy O’Connor and I am here tonight on behalf of the South Bay Task Force, a five-year-old conservation organization dedicated to preserving the fragile ecosystem of Hudson’s unique South Bay. We have had to expand our purview in this last year to include Hudson’s equally fragile North Bay because of the City’s proposed Storm Sewer Separation Project. 

Our research suggests that this project, as proposed, represents a major environmental setback for Hudson and will, when fully functional, release hundreds of millions of gallons of untreated runoff water from our streets into the recovering North Bay estuary and to the river itself. 

I would like to briefly summarize our findings and invite the Council to review the documents that are part of this testimony at their leisure [in progress]. 

1. First, where Combined Sewers are at issue, all but the wealthiest municipalities must look for improvements among the least harmful of compromises. When considering a sewer separation, communities like Hudson must decide where to put the noxious streetsewer effluent which will no longer be entering the treatment plant. Before separation, Hudson's infrequent spills of combined waste-waters into the surrounding environment have benefited from some level of treatment. The effectiveness of capture in the treatment plant and the consequent dilution of spilled waste in excess of capacity are the subjects of a First Flush Evaluation. This study was already conducted at the site of today's proposed sewer separation project and approved by the state in 1984. 

2. Second, though the First Flush evaluation was approved, much has changed since 1984, including our pollution measuring abilities. As acknowledged by the City, the immediate sewer proposal will serve as the backbone for all subsequent sewer separations in the City's north-side drainages. Using the weighted average curve number technique, as approved by Columbia County Office of Soil and Water, the South Bay Task Force estimates that the combined total of street water runoff volume for the affected basins (e.g. the North Bay and other contiguous “publicly owned or operated parkland, recreation area or designated open space”) will be upwards of 242 million gallons annually. This number, which couldn't include the 5th Ward, although it should have, is larger than the total volume of oil spilled into the Gulf of Mexico during the Deepwater Horizon disaster of 2010. 

3. Third, according to the State Environmental Quality Review Act (known as SEQRA) the project sponsor - the City of Hudson - must consider the cumulative consequences of the sewer separation project. To our knowledge the City has not done that. 

4. Fourth, as another cumulative issue, SEQRA requires that all known stresses to human and natural systems be taken into account. But to our knowledge that has not been done. Significantly, a former refrigeration plant on North 2nd Street, Foster’s Refrigeration, which was partially demolished in 2010 but never remediated, currently harbors PCBs, Lead, Barium, Arsenic and Asbestos, any of which may already pollute the North Bay and Hudson River. 

Yesterday, May 18th, the Department of Environmental Commissions’ Division of Environmental Remediation updated its online database to reflect the structure's 2010 demolition. The site has now been flagged by the DEC for any action, including the proposed sewer separation, which effects anything within a 2000 foot radius of the site. Much of the critical sewer separation work is just 900 feet from the former Foster’s plant. 

5. Fifth, it is a well-established fact that ”freshwater tidal marshes" are considered a globally rare habitat. In New York state, the majority of occurrences are found along the Hudson River, with 75% of those located in Columbia, Greene and Dutchess Counties (New York Natural Heritage Program). According to the DEC, tidal wetlands are among the most important habitats on the Hudson River. 

Part 664.6(e)(1) of the state's Environmental Conservation Law describes the City of Hudson as having "urbanized area" wetlands which this same section describes as "rare." For the purpose of wetlands protection, this part of the state's conservation law specifies the City's North and South Bays. 

The North Bay was long known to be a particularly productive system with high species diversity. In 1987, the North Bay was designated a Significant Coastal Fish and Wildlife Habitat (SCFWH), part of the greater Stockport Creek and Flats SCFWH under the State of New York Department of State. 

As for the North Bay's multiple listed species, these include the federally Endangered Shortnose Sturgeon; the state-Threatened Least Bittern, which nests inside City limits; the state-Threatened Northern Harrier, which overwinters here; the state-Threatened Bald Eagle, a Hudson resident which feeds on the Bay's tidal flats (an eagle nest is located 1500 feet from the mouth of the Bay); both species of the anadromous river herring, which were listed in 2006 as Species of Special Concern by the National Marine Fisheries Service; two species of freshwater pearly mussels, the Eastern Elliptio and Eastern Floater, protected in New York under a separate state law, ECL §11-0107; and two state-Threatened plants both within City limits, the Smooth Bur-marigold and the Spongy Arrowhead. 

The dangers of street water runoff were emphasized in a 2008 memorandum by the National Oceanic and Atmospheric Administration, titled "Impacts to Marine Fisheries Habitat from Nonfishing Activities in the Northeast United States," warning of storm water runoff hazards to fish "from roadways and other developed portions of the coastal landscape" (NOAA Technical Memorandum NMFS-NE-209). 

6. Sixth, as a consequence of the South Bay Task Force research, 416 citizens signed a petition asking the Common Council to conduct an environmental assessment of the planned project. That petition was presented to the Council on April 21, 2015. 

7. Seventh, the first step, and potentially the last step, of any environmental review is an Environmental Assessment Form, or EAF. On April 21st, the Common Council agreed to conduct a short EAF for the sewer separation project, the minimal environmental review for any proposed action under SEQRA.

Concurrently, however, the council also sought an opinion on the possible exemption of the same project from any environmental consideration. This is significant because the City's June 2014 application for a federal block grant to pay for the sewer separation stated that the project was SEQRA-exempt based on a 2007-2008 “Order on Consent.” The project was never a requirement of any Consent Order, however, and in March 2015 the City dropped the very claim which had won it the block grant. 

Compounding the City’s problem, last month the Council sent a package of documents to Saratoga Associates without mentioning the Consent Order change, thus skewing Saratoga's opinion about the sewer separation project. 

Additionally, neither the City nor Saratoga has considered SEQRA at part 617.4 (b)(10), which flags for environmental review any action “occurring wholly or partially within or substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space." 

8. Eighth, for the short EAF, the DEC prefers project sponsors to use the state's automated eMapper. This service makes a rapid search through state databases for anything which should alert a project sponsor. 

On May 6th, the public learned that the short EAF would be conducted by Delaware Engineering, despite a perceived conflict of interest which was brought to the Common Council's attention at the April 21 meeting. 

Not surprisingly, Delaware's EAF discovered no environmental impacts from a project area it limited to the excavation footprint of a single new sewer pipe. As is clear from the above, the affected area in fact includes hundreds of acres of fragile North Bay wetlands, as reflected in eMapper's record search.

Even for the artificially limited project footprint claimed by Delaware Engineering, the state's automated eMapper checks Yes for three questions to which Delaware answered No. (The state's opposite replies which cannot be altered related to "wetlands," species that are "threatened or endangered," and "remediation.")

In conclusion, because this project stands to reverse nearly 50 years of progress in cleaning up Hudson's waterfront, we respectfully request that the Council consider a thorough environmental review of its sewer separation project, including an EAF that is conducted by a disinterested party who knows how to use the DEC's recommended eMapper software. 

Thank you.