Citizen’s Group Challenges Wisconsin Department of Natural Resource’s Permit to Burlington Northern Santa Fe Railway Allowing Railway Expansion

A BNSF Railway freight train loaded with crude oil burns near the Illinois Wisconsin border last week near Galena, Illinois.

As crude oil trains rumble through Wisconsin, the Wisconsin Department of Natural Resources (DNR), responsible for issuing permits for bridges over navigable water, has been challenged by “Citizens Acting for Rail Safety” for its recently permitted rail expansion in the La Crosse River marsh.

Following a fiery train derailment last week in Galena, Illinois, near the Wisconsin border, the Department of Natural Resources is facing a legal challenge over its permit to allow wetland filling and building a bridge to facilitate more crude oil shipments through the state.

With help from the nonprofit Midwest Environmental Advocates, members of the group Citizens Acting for Rail Safety filed a petition for judicial review in La Crosse County Circuit Court asking a judge to block a wetland permit and to require the DNR to complete a more thorough environmental review of the project.

The DNR last month granted BNSF a permit to fill 7.2 acres of the marsh and build a bridge over the river as part of a plans to add about four miles of new tracks through the city of La Crosse between Farnam and Gillette streets.

At the root of their concerns are the growing number of trains hauling highly explosive crude oil from North Dakota, such as the 105-car train that derailed last Thursday near Galena, Ill., causing at least five cars to burst into flames.

That fire continued to burn until Sunday morning, according to the Environmental Protection Agency, which is overseeing the response and monitoring the nearby Galena and Mississippi rivers for potential contamination.

“The marsh project being considered is one of a series of projects intended to facilitate even more traffic flow,” said Ralph Knudson, one of the petitioners. “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.”

DNR water management specialist Carrie Olson previously said the department decided against a full EIS because her two-month review of BNSF’s permit application covered most of the same ground.

But Sarah Williams, staff attorney for Midwest Environmental Advocates, said that does not comply with the state’s Environmental Policy Act.

The petition says the agency did not take into account the environmental and public safety risks associated with the derailment of a train carrying hazardous materials, the disturbance to neighbors from increased train traffic and the incremental impact of continuing to fill in the marsh, which has been reduced over the years to about half its original size.

It also questions the transparency of the review process.

Knudson wondered whether anyone would have known about a Jan. 7 public hearing — attended by more than 150 people — had the citizens groups not publicized it, according to a report by Chris Hubbuch of the Lacrosse Tribune.

While the DNR posted a legal notice of the meeting, the agency did not send out a press release.

“Our strategy here is just to really have our public service agencies — in this case the DNR — be as accountable as possible for what their mission is, and to be as open as possible about their process,” he said.

BNSF’s La Crosse project is one of 13 planned upgrades the railroad is making to its route along the Mississippi River between the Twin Cities and the Illinois border.

BNSF says the La Crosse upgrade will ease delays at each end of what is the area’s only section of single track. Opponents say it will lead to increased train traffic, a position supported by the railroad’s permit applications.

The marsh project is still awaiting a permit from the U.S. Army Corps of Engineers, which is still considering BNSF’s application. State and federal lawmakers have joined the call for a comprehensive study known as an Environmental Impact Statement.

The citizens also petitioned the DNR for an internal review of the permitting process. In each case, the DNR and BNSF will now have an opportunity to respond before any ruling.

The suit says the DNR did not conduct a full environmental impact statement when it granted the permit to Burlington Northern Santa Fe Railway (BNSF) for a second set of tracks through the La Crosse River Marsh.

More than 40 oil trains now rumble through the state each week from North Dakota, many with more than 100 tank cars, some passing through Sauk, Columbia and Jefferson counties.

Petitioners are asking the La Crosse County Circuit Court to reverse a permit granted last month and force the DNR to do a more thorough analysis under the Wisconsin Environmental Policy Act (WEPA), a 1972 law that required sound decision-making by state agencies.

“As we have seen with recent derailments like the one that happened in Galena, last Thursday, today’s rail traffic is much riskier than a few years ago,” said Ralph Knudson of Citizens Acting for Rail Safety in a statement. “The marsh project being considered is one of a series of projects intended to facilitate even more traffic flow.”

Changes to NR Chapter 150 in 2014 now allow the state to meet requirements of WEPA without doing an environmental assessment. This change in state law allowed the bridge and wetland permit to go forward with a minimum amount of public review, according to the Madison offices of Midwest Environmental Advocates, which is assisting the citizen’s group.

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

The lawsuit notes a series of risks with the expansion of rail traffic through the La Crosse marsh.

They include:

• the threat of a more train derailments with increased shipments of hazardous materials

• impact on nesting bald eagles

• noise and air pollution for neighbors living near the tracks

• filling of the La Crosse River Marsh, which has already been reduced to half its original size by previous developments.

Meanwhile, Sen. Tammy Baldwin (D-Wis) and Rep. Ron Kind (D-Wis) on Monday issued a joint statement calling for the Obama Administration to take immediate action to address oil train safety. The U.S. Department of Transportation was to have finalized new rules to address oil tank car safety but has missed a Jan. 15 deadline.

The statement noted that just a few years ago it was rare to see an oil train in Wisconsin but today more than 40 oil trains a week pass through the state, many with 100 or more tank cars.

“The danger facing Wisconsin communities located near rail lanes has materialized quickly,” the statement said. “It is clear that the increase in oil moving on the rails has corresponded with an uptick in oil train derailments.”