Wisconsinites ask court to block rail expansion through marsh pending legal review

The Wisconsin Gazette

La Crosse area citizens suing over a Wisconsin Department of Natural Resources permit for a Burlington Northern Santa Fe Railway rail line expansion through the La Crosse River Marsh want the court to put the permit on hold while the legal challenge is considered.

“Petitioners took this action today because the court has the power and discretion to put a hold on the permit so that citizens have their day in court before the damage to the marsh is done,” said Sarah Williams, staff attorney for the Midwest Environmental Advocates. “It is particularly important that the court grant citizens’ request for a stay as soon as possible because BNSF is now allowed to continue constructing in the marsh during the endangered black tern nesting period.” 

The challenge is not only on the direct impacts to the 7.2 acres of wetlands that railway company would fill, but also on the indirect and cumulative impacts of the project. The Wisconsin Environmental Policy Act, according to the MEA, requires the DNR to prepare an environmental analysis including indirect and cumulative impacts of the project.

The MEA said the DNR’s failure to disclose and consider numerous and significant environmental impacts that may result from the project demonstrates the 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 the project, including:

• The risk of environmental harm and threat to public safety from a train derailment carrying hazardous materials such as crude oil.

• 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 another wetland fill in the La Crosse River Marsh, which already has been reduced to half its size from previous developments.

• 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.

MEA said the DNR failed to consider these impacts in the permitting decision.

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, according to the MEA.

A hearing for the motion to stay the permit is scheduled for June 22.