Petition Filed With State Dec Seeks Ruling On 1994 Protection Agreement For Karner Blue In Clifton Park

CLIFTON PARK: A petition for a Declaratory Ruling under the State Administrative Procedure Act was submitted in January to the NYS Department of Environmental Conservation by the environmental preservation group, Save the Pine Bush together with 22 Capital Region residents asking the DEC to rule on a 1994 habitat protection agreement meant to save the endangered Karner blue butterfly and its associated ecosystem near Wood Road in the Town of Clifton Park.

The petition, dated January 23, was filed on behalf of the signers by attorney Peter Henner of Clarksville, and is addressed to the Department of Environmental Conservation General Counsel, James Ferreira. (Last week, Henner filed papers in State Supreme Court suing the City of Albany on behalf of Save the Pine Bush over the City’s plans to expand its landfill onto lands dedicated for preservation in the Pine Bush. Because of the lawsuit, the next day, Mayor Gerald Jennings of the City of Albany reversed his plan to expand the landfill at that location.)

The petition Henner has filed about the Clifton Park Karner blue habitats describes a July 1994 agreement meant to save the butterfly’s habitat that was signed by the DEC’s Endangered Species Unit, the Saratoga Land Conservancy and by local landowners DCG Development Company and Bobrick Washroom Equipment.

The agreement was created pursuant to a condition of the Clifton Park Planning Board’s 1994 site plan approval of the Bobrick Washroom Equipment facility near Northway Exit 10 on lands south of Ushers Road that contained Karner blue habitat. Other habitat areas on nearby lands along Wood Road also owned by DCG were also included in the agreement. The petition claims the Wood Road butterfly habitats have never been protected despite the terms of the agreement.

The petition states that the DEC Endangered Species Unit and DCG never agreed on the necessary protective area as called for under the 1994 management agreement, that a conservation easement supposed to protect the area was not dedicated to Saratoga Land Conservancy as the contract required, and that promised management to be done by the owner there until the easement was granted never took place. The petition says a different easement offered in December 1994 was refused by Saratoga Land Conservancy since it did not reflect a negotiated outcome and was deemed too small an area to provide meaningful protection for the endangered butterfly’s habitat.

The petition seeks a ruling on the rights and obligations of the parties, particularly the DEC, and on the enforceability of the 1994 agreement. It also presents the viewpoint of the petitioners that the agreement is enforceable by the Department of Environmental Conservation and that DEC’s failure to do so would violate a section of the New York State Constitution. Also presented are excerpts from a series of letters dating from 1997 in which the DEC ESU personnel were denied monitoring access to the Wood Road butterfly site after they found several additional patches of wild blue lupine there. A native wildflower, wild lupine is the essential food source used by the Karner blue butterfly’s larval, or caterpillar stage.

“This petition is important not only for the Wood Road habitat site, but for all agreements created to help protect and recover Karner blues and preserve and manage their habitat in New York State,” said Save the Pine Bush Secretary, Lynne Jackson of Albany, who also signed the petition. “We need land that supports the Karner blue to be saved not only in the Pine Bush but at its Saratoga County sites, in order to help keep this endangered species from eventually going extinct in both places. Saratoga County contains most of the Karner blues in New York State, and we want to make sure that all protective agreements for those sites are followed through and honored.”

“The Clifton Park Karner blue populations may be very important connecting links between the Karner blues in the Pine Bush and Karner blues at other places in Saratoga County,” Jackson continued. “It’s really a scandal that no agency has enforced this agreement in many years, so we’re asking the State DEC as a signer of this agreement to review the history and to take urgent action to make sure the 1994 agreement for Wood Road is fulfilled as was intended.”

The 22 individuals named include a majority residing in Clifton Park, Ballston Lake and Rexford. Citizens from the Cities of Saratoga Springs, Albany and Troy and of the Towns of Niskayuna and Stillwater are also named on the petition.

“Residents of the Clifton Park area and beyond who care about open space and wildlife are noticing the way this agreement has been ignored” said Clifton Park resident William Engleman, speaking on behalf of the individual signers listed in the petition. “More and more citizens are concerned that letting endangered wildlife go unprotected and their habitat be destroyed, whether by direct harm or because of neglect, is just plain wrong.”

“All the signers of this request for a declaratory ruling appreciate the hard work done by the DEC Endangered Species Unit staff to save the Wood Road Karner blue habitat over the years,” Engleman said. “We don’t want the butterfly to go extinct there, its habitats to be lost or the Endangered Species Unit’s efforts and expertise to be wasted, due to official indifference, inaction and forgetfulness be it by the Town, State or other agencies,” he added.

Speakers from Save the Pine Bush, along with Engleman and other petition signers, addressed the Clifton Park Town Board several times in 2005 calling on the Town to remove endangered species habitats from the Town’s light industrial zoning district, uphold the 1994 agreement and take other protective steps to halt and reverse the feared slide towards local extinction of the Karner blue and diminishment of other at-risk fauna and flora species and habitat areas in Clifton Park.

In 2004, Save the Pine Bush and Engleman sued the Town of Clifton Park Planning Board seeking reversal of a soil disturbance permit on one side of Wood Road that the Board granted without requiring an Environmental Impact Study. The suit was withdrawn after the site clearing got underway and a judge refused the plaintiffs’ request for a temporary restraining order blocking the clearing activity.

See related news articles.

Printed in the March/April 06 newsletter