Retired Wisconsin Department of Natural Resources experts are raising alarms about what they say are unusually bold signs of political influence in the agency that are threatening to allow businesses to destroy wide swaths of rare and valuable wetlands.
The warnings came from inside and outside a judicial hearing where this week conservation groups are challenging a DNR permit allowing a Georgia-based land company to fill and build on 16 acres of wetlands — enough to cover 21 football fields — in Monroe County.
Meanwhile, Republicans who control the state Legislature moved last week to nullify the hearing by exempting Meteor Timber from any additional permitting requirements that could be ordered to protect the rare hardwood swamp the company wants to fill.
“This type of legislative amendment and process makes a mockery of the law and is an affront to the rights of citizens who are seeking due process under the law,” said Michael Cain, who retired in 2010 as the DNR’s principal wetland and surface water lawyer after 34 years at the department.
Cain and others said that if the Meteor permit is allowed to stand it could signal the end of meaningful protection for wetlands and rare and imperiled species like those found in about 13 acres of the 16 acres the company plans to fill so it can build a $70 million facility to process industrial sand and ship it to Texas.
The Meteor permit document was written by DNR staff in a way that exposes findings of fact that should have resulted in denial of the permit application, and that lists basic information the company should have been forced to supply before the permit was approved, Cain said.
“I’ve reviewed thousands of permits and litigated hundreds of them, and I never had one like this,” Cain said. “It was clear that DNR staff were writing a permit denial ... and then a permit was attached with conditions requiring submission of information after the fact which would have been required to reasonably assess the project.”
A recently retired DNR scientist, Pat Trochlell, testified Monday in the permit challenge that she and other staff members were directed to find ways to help Meteor submit an approvable application after they had determined it was likely impossible to meet requirements of state law.
Trochlell also detailed why it will be close to impossible for Meteor to fulfill its commitment to replace the rare white pine-red maple swamp it is filling.
A nonprofit lobbying group that includes Meteor has accused permit critics of extreme views and obstructionist behavior.
“Meteor Timber should be applauded for following the rules, being a good corporate citizen, creating jobs in a responsible manner, and making any and all attempts to include all voices in the project process,” said Nathan Conrad, a spokesman for the Natural Resources Development Association.
Conrad said the project would create 300 construction jobs and 100 other jobs.
He said Meteor Timber has an option on the land, and the land owner may clear cut 285 acres if the company can’t purchase it for the sand-processing plant.
Jim Dick, a spokesman for the state DNR, said the agency doesn’t comment on pending cases.
Cain said he became aware of the permit months ago and told conservation groups it was unlikely to withstand a legal challenge. The former DNR attorney said he decided to speak out publicly after reading a newspaper article quoting Conrad accusing the groups of being uninformed bullies.
Businesses have always enlisted legislators to pressure DNR for eased environmental standards, and principled department administrators insist on obeying the law, Cain said.
But it became more difficult after the DNR was placed under the governor’s direct political control in the 1990s, Cain and others said. When Republican Gov. Scott Walker and a GOP legislative majority took control of state government in 2011 they began an aggressive program aimed at making the department friendlier to businesses.
Last year the DNR issued the Meteor permit. It was challenged by conservation groups and this week an administrative law judge in Tomah is hearing testimony on whether it is lawful.
But on Thursday night, at Meteor’s request, the state Assembly passed a statutory provision exempting Meteor from wetland permit conditions — including any that might be ordered by the judge. The provision came as a last-minute amendment to another bill, so there was no public hearing.
A state senate committee hearing on the bill is set for 10 a.m. Wednesday. It’s unclear if members of the Senate plan to offer the Meteor amendment that passed the Assembly on its last floor session of the year.
In permit documents, Meteor has said it will create a replacement for the rare white pine-red maple swamp, but that’s never been done successfully in Wisconsin, said Joanne Kline, who retired as a DNR wetland ecologist in 2014 after 25 years reviewing plans for replacing and restoring filled wetlands. Replacement wetlands may be required under a 2012 state law.
Open water marshes are relatively easy to replace. If the water ends up a foot deeper or shallower than planned, the wetland will still attract ducks and be ringed by cattails, Kline said.
But rare plants and insects in a white pine-red maple swamp are nurtured by very specific soil structures created over thousands of years in places where there’s just enough water, with little margin for error, said Kline, who now runs a consulting firm for wetland restoration.
If there’s too little water, the rare species won’t survive. But if it’s a little too wet, the trees die and whole system is thrown out of balance.
The wetland to be filled is part of a larger area including hardwood wetlands. The permit documents the company’s offer to preserve 175 acres of wetland and convert 58 acres of cranberry beds into a natural landscape including 34 acres of white pine-red maple swamp.
But the ambitious plan had serious shortcomings, and the DNR didn’t follow its usual practice of requiring a financial guarantee, said Trochlell, the recently retired DNR scientist, in her testimony Monday.
“The problems and uncertainties with the soils and hydrology are so significant that it is unlikely that the high quality white pine-red maple swamp would become established,” said Trochlell, who worked at DNR for 37 years. “The performance standards in the plan are not rigorous enough to ensure that a similar type and quality of wetland will be replaced.”
The wetlands are under federal jurisdiction, so Meteor also obtained a permit from the U.S. Army Corps of Engineers. The federal permit can’t be issued unless the state certifies that water quality will be protected.
If Meteor can create proper conditions, it could take 30 to 40 years to replace the filled hardwoods swamp, Olson said. He said he wasn’t aware of a successful white pine-red maple swamp being created under federal jurisdiction.
The battle over the permit comes on the heels of a bill the Legislature passed this month exempting tens of thousands of state-regulated wetlands from regulations requiring developers to avoid or minimize destruction of the landscape feature that prevents flooding, purifies water and nurtures wildlife.