Two environmental groups have announced their intention to sue the town because they believe a recently approved industrial site development would harm endangered Karner Blue butterflies.
The Sierra Club and Save the Pine Bush sent letters to state and federal agencies Sept. 21 saying they plan to file a lawsuit under the Federal Endangered Species Act in U.S. District Court if the town and the developer don’t show that Karner blues won’t be harmed on an Ushers Road property that is being prepared for a future industrial site.
The Clifton Park Planning Board approved the project’s site plan Sept. 25, allowing developer DCG Development Co. to do preliminary work clearing trees and brush and grading the 16-acre property so it will be ready if someone wants to come in and build.
That future project would be required to get Planning Board approval as well, but the environmental groups believe the harm will already be done to the butterflies, which require a specific habitat that supports the fragile blue lupine plant, the food source for Karner Blue caterpillars.
While DCG is required to set aside 1.85 acres of habitat for the butterflies to live, the two environmental groups say there’s no evidence that’s enough land to support a Karner Blue population.
“I don’t feel that that’s been taken seriously or addressed in a definite way,” said William Engleman, a town resident concerned about the Karner Blue.
A DCG-hired consultant recommended that amount of land, but the town did not get the opinion of an independent consultant, Engleman said.
Pete Sheehan, chairman of The Sierra Club Hudson-Mohawk Group, and Lynn Jackson, secretary of Save the Pine Bush, sent the letter to the U.S. Fish and Wildlife Service and DEC, which Sheehan said may address the issue.
Both agencies confirmed they have received the letter and are reviewing it. A spokeswoman for Fish and Wildlife said the service does not comment on pending litigation.
Sending the notice to file a lawsuit is the first step in the legal process, Sheehan explained. The groups can file suit 60 days after the letter is sent.
DCG’s habitat management plan requires the company to reintroduce the butterflies to the property if it’s found that they’re not there anymore. Karner Blue butterflies have not been seen on the property for several years but were there in large numbers previously, Sheehan said.
“At one point, there were a lot of Karner Blue butterflies on that site,” he said.
This is the second DCG project of this kind that the Planning Board has approved. The Sierra Club and Save the Pine Bush also filed legal action in the first case, on an adjacent property on Wood Road, taking an Article 78 case to the state Supreme Court in Saratoga County alleging that the town did not properly follow state environmental review standards.
The court shot down the challenge, saying the two groups didn’t have standing to bring the complaint before the court.
Sheehan hopes the outcome will be different in the federal case, since it falls under the Endangered Species Act.
Town Attorney Thomas McCarthy believes the federal court would throw out a lawsuit again on the basis that the two groups don’t have the authority to challenge it.
“I think that’s still the case. I think it’s a ‘standing’ issue.”
The U.S. Fish and Wildlife Service doesn’t have jurisdiction over private land, and DEC reviews plans to make sure stormwater regulations are followed, but it also lacks jurisdiction over the issue the parties allege, McCarthy said.
A representative from DCG did not return calls for comment.