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DNR Change to BNSF Permit Adds More Problems to Rail Expansion Plan

May 06, 2015

On Monday, May 4, the Wisconsin Department of Natural Resources issued an amendment to the Burlington Northern Santa Fe Railway Company’s permit to expand a rail line that carries crude oil through the City of La Crosse and the ecologically sensitive La Crosse River Marsh. The DNR made the change to the wetland and waterway permit without public notice or opportunity to comment on the increased environmental impacts of the construction activities.

“The need for public notice before changing the permit for this project is important to the people of La Crosse,” said MEA Staff Attorney Sarah Williams. “Local residents care about a fair and predictable agency process. By changing permit conditions without public input, the DNR’s action excluded the opportunity for natural resources experts to call attention to the environmental impacts of rail construction at this time and in this sensitive ecosystem.”

The problems with the permit amendment include:

  • Threats to the endangered Black Tern: The Black Tern was added to Wisconsin’s endangered/threatened list in 2014 . The birds are known to nest in the La Crosse River Marsh and take cover in the area wetlands, woods and natural areas. There are only an estimated 169 pairs of birds and the declining population is likely due to shrinking wetland habitats. The DNR’s original BNSF permit included a condition to protect Black Terns, but the agency removed that condition through this permit amendment. BNSF can apply for an incidental take (permission to disturb or kill) permit for the endangered bird to continue to do construction on the rail line during the bird’s nesting period. The Army Corps of Engineers issued an incidental take permit to BNSF for Bald Eagles in the construction zone last month.
  • Threats to the endangered Northern Long-eared Bat: the DNR’s amendment also may have neglected new rules that protect another threatened species, the federally listed, Northern Long-eared Bat. The white-nose syndrome is a disease that has spread rapidly through this species and the declining numbers of the population prompted their addition to the endangered species list. The federal protections went into effect on May 4.

People in La Crosse are very engaged on the issues around the rail expansion. Citizens have a right to participate in the process of permitting projects that impact their local communities. In January, around 200 people attended a public hearing to tell the DNR about the importance of marsh habitat protection to their city as well as other environmental, health and safety concerns.

But ultimately citizens were commenting on a moving target: the permit application and project plans continued to change throughout the legally required public comment period and the DNR approved the original permit February 6, 2015. And despite all of this effort by citizens to have their voices heard in this process, the permit has once again changed; this time without an opportunity for public input on this growing list of reasons why the rail expansion will negatively impact the marsh local residents have worked for decades to protect.

There is still a chance for the public to comment to the DNR on the incidental take permit. Comments are welcome until May 16. Find more details on the DNR's website.

By issuing the amendment after the original permit is already facing a legal challenge over its inadequate environmental analysis, the DNR is sacrificing its important role of protecting our natural resources from damage. The law requires the DNR to allow for participation by the local community so they may have a voice in the process. Transparency and public involvement are critical components of environmental protection.

A summary of the legal action filed by residents who petitioned for judicial review of the original wetland and bridge permit and challenge to DNR for not complying with the Wisconsin Environmental Policy Act can be found on MEA’s website.

/ tagged: wetlands, crude oil, endangered, mississippi river