Wetlands bill skips public, attorney says

Former DNR lawyer argues against permit exemption

The state Department of Natural Resource’s former top lawyer on water issues will tell lawmakers Wednesday that a late-night measure passed by the Assembly favoring a planned industrial facility would likely create environmental problems and “trample” on the right of citizens to challenge agency decisions involving wetlands.

A Republican amendment added a few hours before an Assembly vote Thursday night on a wetlands bill calls for a special exemption for a $70 million sand processing development in western Wisconsin, now under challenge by environmental groups.

That project is the subject of an administrative hearing this week in Tomah in which environmental groups are

challenging the DNR’s approval of a wetlands permit.

The Assembly measure gets a hearing before a Senate committee Wednesday.

Atlanta-based Meteor Timber is seeking approval to build a sand processing plant and rail spur that would supply the frac sand industry but destroy 16.25 acres of wetlands near I-94 in Monroe County. Frac sand is used in the process known as fracking to increase oil production.

The case is being closely watched as Clean Wisconsin and Midwest Environmental Advocates challenge the loss of a rare type of wetlands. Also, documents made public last week show that a former wetlands expert of the agency will testify that DNR staff opposed the Meteor project but were overruled by higher-ups at the agency,

But supporters tout the economic benefits of the plant and rail spur, including a workforce of 100 employees. Also, the Natural Resource Development Association, which is representing the interests of Meteor, says the company is going to great lengths to make up for the wetlands loss. It complains environmental groups have refused to work on a compromise.

The problem, in the view of former DNR lawyer Michael Cain, is that the project could still go ahead if the courts agree with the environmental groups that the DNR did not follow protections in state law in granting a permit to destroy wetlands. The Assembly amendment exempts the project from needing the permit, if certain conservation practices are put into place, Cain said. The Senate would have to approve the same exemption, potentially tacking it on to a wetlands bill like lawmakers in the Assembly did.

“This amendment would really trample on the due process rights of citizens,” Cain said. That will be his message to members of the Senate Committee on Natural Resources and Energy on Wednesday, he said.

Cain retired from the DNR in 2010 after 34 years at the agency, including 32 years in water law.

Cain read through the permit the DNR approved that allowed Meteor to destroy wetlands, including more than 13 acres of a rare woodland swamp if certain conservation steps are taken.

“I have read hundreds of these permits and it was clear that it was drafted as a denial,” Cain said.

That would buttress the testimony of a retired DNR wetlands expert who worked on the project. Her testimony was released by Clean Wisconsin in advance of this week’s administrative hearing, and it indicates she and others at the agency were directed to approve the project by administrators.

Pat Trochlell, a 37year-employee of the DNR, expressed doubt a plan to restore the woodland swamp would ever work. “The plan proposes to restore a high-quality wetlands plant community that to my knowledge has not ever been restored,” Trochlell said in written testimony.

A DNR spokesman said the agency would not comment because the case is in litigation.

State law generally calls for wetlands to be avoided because of their ecological value for wildlife habitat, flood control and maintaining water quality.

Nathan Conrad, communications director of the Natural Resource Development Association, said environmental groups are ignoring other factors.

If the sand plant isn’t built, he said, the current owner of the land said he would clear cut at least 285 acres; Meteor has pledged to create habitat for an endangered butterfly; and that the company would upgrade land at a ratio of 40 to 1 over wetlands that are lost.