Environmental Groups, Frac Sand Company Continue To Battle Over Wetland Ruling

An environmental law firm is asking the head of the state Department of Natural Resources not to overturn a judge’s recent ruling that halted a frac sand operation in Monroe County.

On May 4 administrative law Judge Eric Defort ruled that the DNR didn’t have enough information to grant a permit for Atlanta-based Meteor Timber to fill 16 acres of wetlands the agency describes as high quality, including 13 acres of rare white pine-red maple swamp. The company announced it would appeal the judge’s ruling by petitioning the DNR to review his decision. Now, DNR secretary Dan Meyer has until May 24 to either approve or deny Meteor’s request.

Environmental law firms Clean Wisconsin and Midwest Environmental Advocates along with the Ho-Chunk Nation opposed Meteor’s planned frac sand mine and processing facility. In a letter to Meyer, they urged him to deny Meteor’s requested review of the judge’s decision claiming that doing so would be an illegal interpretation of state statute NR2.20, which regulates reviews of contested permits.

From the letter:

“The relief requested goes beyond the Secretary’s authority; undermines the integrity of the contested case hearing process; ignores the role of the administrative law judge as an independent decision maker; and invokes a reading of NR 2.20 that would render it an illegal rule.”

In an interview with WPR, Clean Wisconsin attorney Evan Feinauer said having the DNR overrule a judgment against itself would be of “dubious legality.”

“We don’t think that, as it’s being interpreted by the company in this instance, the secretary can just come in and toss out the judges decision, which he arrived at after five days of hearings from hours and hours of expert witnesses,” Feinauer said. “We think that reading of the rule would be impermissible.”

Meteor Timber project manager Chris Mathis disagreed. He said Meyer absolutely can review the administrative law judge’s decision, which Meteor Timber said was plagued with legal errors and was arrived at without consideration of any witness testimony provided by the company.

“The secretary of the DNR has a legal right, which has been used in the past, to review permit decisions and make the sure the (administrative law judge) got it right,” Mathis said in a statement. “We think this case is so complex, that the agency best positioned to make permit decisions, should review the … decision and be allowed to come to their own conclusion.”

A statement from Meteor Timber lobbyist Nathan Conrad of the Natural Resources Development Association concurred with Mathis’s view that a DNR review is warranted and needed for an important economic development to move forward.

“This project and the $75 million in investment attached to it have been unanimously approved by the local community,” said Conrad. “It is high time for this project to move forward, and the legal and well used appeal process will move Meteor Timber one step closer to that happening.”

David Strifling is the Director of the Water, Law and policy Initiative at Marquette University. In an interview with WPR he said state statute is clear on the matter. He said any party who doesn’t like an administrative law judge’s decision has the right to ask for a review.

“I know it seems odd to have the secretary of the DNR reviewing a decision that involved the DNR but you still have the appeal to circuit court after that,” said Strifling

Strifling said no matter what Meyer decides, the case could wind up in circuit court.