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BNSF rail expansion permit challenge

— Without an environmental impact statement, petitioners say the DNR’s process to approve a permit to fill wetlands and expand rail lines carrying crude oil violated the Wisconsin Environmental Policy Act.

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On May 18, 2016, a La Crosse Circuit Court dismissed a citizen challenge against the Wisconsin Department of Natural Resources and allowed a permit for the Burlington Northern Santa Fe rail company to fill wetlands and build a bridge in the La Crosse River Marsh to expand rail lines carrying crude oil to stand. We posted more about the news on our blog.

Sarah Geers, staff attorney, said in a statement: “Crude oil derailments are too much of a risk to human life, health and safety, and are too damaging to sensitive environmental resources to remediate. From the start, petitioners – and members of the City of La Crosse – have argued that the serious impacts of this controversial project required the DNR to conduct an independent, detailed investigation to the long-term and secondary impacts of the rail expansion.”

The judge’s decision largely deferred to the agency, yet petitioners remain convinced that the DNR did not adequately review the environmental effects of the BNSF rail expansion. Petitioners believe that filling the sensitive and critical La Crosse River Marsh to expand a rail line through a densely populated city to ship greater volumes of volatile crude oil is a significant action because of its threat to public safety and environmental health. An action with significant potential impacts demands a more thorough environmental review. The DNR’s process to approve filling in wetlands and construct a rail bridge was too narrow to fully consider these threats.

Case Summary

On March 9, 2015, nine residents concerned with a proposed expansion of rail lines carrying crude oil through the Upper Mississippi River Basin filed a legal challenge to the Wisconsin Department of Natural Resources’ decision to issue a wetland fill and bridge permit to Burlington Northern Santa Fe Railway (BNSF).

Citizen petitioners say the DNR’s environmental analysis of the project didn’t comply with the law. They are asking the court to reverse the DNR’s decision to grant the permit and require the agency to prepare an environmental analysis that complies with the Wisconsin Environmental Policy Act (WEPA).

The Wisconsin Environmental Policy Act requires all state agencies to consider environmental impacts when making decisions or issuing permits that impact our environment. The scope of this analysis is broad and must include the cumulative, direct and indirect impacts of a project.

The DNR recently went through a major overhaul of its regulations that guide its compliance with WEPA in making decisions—chapter NR 150. One of the most significant changes to the rule was eliminating the Environmental Assessment process, which is how the DNR documented its environmental review and decision regarding whether to prepare a more detailed Environmental Impact Statement. The DNR now classifies many actions, such as the bridge and wetland permit at issue in this case, as “equivalent analysis” actions. According to the DNR, the permitting program for these actions provides an environmental analysis that is equivalent to that required by WEPA.

The DNR’s failure to disclose and consider numerous, significant environmental impacts that may result from the BNSF project demonstrates that this permitting program does not provide an environmental analysis equivalent to that required by WEPA. Numerous residents of La Crosse and the surrounding area raised concerns about indirect and cumulative impacts of the project including:

  • the risk of environmental harm and threat to public safety from a train derailment carrying hazardous materials such as crude oil,
  • a Bald Eagle nest within 600 feet of the railroad tracks,
  • disturbance to neighbors of the tracks from increased noise, vibration and air pollution from more and more frequent trains passing through,
  • the incremental impact of yet another wetland fill in the La Crosse River Marsh that has already been reduced to half its size from previous developments, and
  • impacts from construction and operation of the second track on the Mississippi River which is adjacent to and downstream from the La Crosse River Marsh.

The DNR failed to consider these impacts in its permitting decision.

Midwest Environmental Advocates is working with petitioners on this legal challenge because we believe that compliance with WEPA isn’t just a paper exercise or a box to check. Thorough disclosure and consideration of the full range of environmental impacts makes for better-informed DNR decisions and provides critical information to the public and other decision makers about the impacts of a project.

There are many more impacts to consider that directly result from the proposed construction of a second track including environmental, safety, and quality of life impacts from more frequent trains passing through. For the petitioners who live in the Upper Mississippi River Basin, this is of particluarly urgent concern in light of several recent Bakken oil or ethanol train derailment disasters in Gogama, Ontario; Galena, Il; Mount Carbon, WV; Timmens, Ontario; Dubuque, IA and Heimdal, ND. 

Our full statement on the legal challenge is on our blog. News coverage of the challenge included an article in the La Crosse Tribune. Television interviews with petitioners were produced by WXOW-TV ABC 19 and WKBT-TV CBS 8 out of La Crosse.

Other coverage of the issues can be found in the Capital Times, the Wisconsin Gazette, Wisconsin Public Radio, and other perspectives on how this challenge fits into a broader political view can be found on the Purple Environment and Wisconsin Democracy Campaign blogs.


On June 2, petitioners asked the court to put on hold the DNR’s permit that authorizes construction activities while the permit challenge is in court. Petitioners filed the motion for a stay because the court has the power and discretion to put a hold on the permit. Citizens have the right to have their day in court before further construction activity damages the marsh.

Citizens also raised concerns about the impacts of the project on threatened and endangered species in the marsh. Throughout the permitting process, the DNR has received numerous comments from the public about the importance of the marsh for Bald Eagles, Black Terns, Northern Long-Eared Bats and other species for which the marsh is a nesting ground, provides habitat, or serves as a stop along an international migratory path.

In spite of significant public concern and involvement regarding impacts to these sensitive species, the DNR issued an amendment to the BNSF permit that allows construction in the marsh during Black Tern nesting, which was prohibited in the original BNSF permit. The DNR made this change to the BNSF permit without a public notice and comment period.

The DNR subsequently imposed additional conditions on construction during Black Tern nesting and created a construction avoidance zone. However, the DNR’s process of amending the permit without notice and modifying permit conditions through a separate authorization creates a moving target and does not allow for meaningful public involvement. This piecemeal process might not have been necessary if the DNR had the resources and direction to conduct an adequate environmental analysis or environmental impact statement before issuing a permit to BNSF.

On May 18, 2016, a La Crosse Circuit Court dismissed a citizen challenge against the Wisconsin Department of Natural Resources and allowed a permit for the Burlington Northern Santa Fe rail company to fill wetlands and build a bridge in the La Crosse River Marsh to expand rail lines carrying crude oil to stand. Read more about why nine citizens from La Crosse filed this challenge with help from Midwest Environmental Advocates.

The judge’s decision largely deferred to the agency, yet petitioners remain convinced that the DNR did not adequately review the environmental effects of the BNSF rail expansion. Petitioners believe that filling the sensitive and critical La Crosse River Marsh to expand a rail line through a densely populated city to ship greater volumes of volatile crude oil is a significant action because of its threat to public safety and environmental health. An action with significant potential impacts demands a more thorough environmental review. The DNR’s process to approve filling in wetlands and construct a rail bridge was too narrow to fully consider these threats.