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Citizens concerned with DNR process to permit rail expansion file legal challenge

Mar 09, 2015

Today, 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).

“As we have seen with recent derailments like the one that happened in Galena, IL last Thursday, today’s rail traffic is much riskier than a few years ago,” said one of the petitioners, Ralph Knudson. “The marsh project being considered is one of a series of projects intended to facilitate even more traffic flow. An environmental impact statement would compel a thorough look at all aspects of construction and operation of rail lines for opportunities to minimize risk and protect the marsh environment and public assets.”

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 public notification and involvement was not easily accessed as the permit application process proceeded,” said Knudson. “We are concerned that a number of important factors that should have been considered with this process were not addressed either publicly or internally at the DNR. We are committed to improving the DNR’s public accountability.”

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.

“Compliance with WEPA isn’t just a paper exercise or a box to check,” said Midwest Environmental Advocates staff attorney Sarah Williams. “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.

“As we see with this proposal to expand rail lines for crude oil transport, the destruction of more of the La Crosse River Marsh is just the tip of the iceberg. There are many more impacts to consider that directly result from the construction of a second track including environmental, safety, and quality of life impacts from more frequent trains passing through.”

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 Political Environment and Wisconsin Democracy Campaign blogs.

Keep up to date on this litigation on our action page.

/ tagged: water, government, wetlands, mississippi river, crude oil, rail safety