White pine-red maple swamp

The state wants to allow Meteor Timber to fill about 13 acres of a rare white pine-red maple swamp in western Wisconsin. Above, springs and seepages provide important habitats used by rare plants and animals in a hardwood swamp in the Black River State Forest in Jackson County.

After a nearly yearlong review, the Wisconsin Department of Natural Resources has declined to reinstate a wetland permit for a controversial Monroe County frac sand operation.

In a decision signed Tuesday, DNR Secretary Preston Cole closed his department’s review without taking any action on a decision by Administrative Law Judge Eric Defort to revoke a permit allowing Meteor Timber to fill 16.25 acres of wetlands.

The decision leaves the Georgia company without the permit it says it needed to complete the $75 million processing and loading facility that would serve two nearby mines on land the company acquired when it purchased nearly 50,000 acres of Wisconsin forest.

Cole said the issue would be best resolved by mutual agreement or in the courts, where a parallel case is currently on hold.

Despite finding that the project would result in “permanent and irreversible” impacts and the loss of 13.4 acres of “exceptional quality” imperiled habitat, the DNR granted the Georgia company a permit in May 2017 that included dozens of conditions and questions. The agency issued a final permit five months later with some of those questions unanswered.

Clean Wisconsin and the Ho-Chunk Nation challenged the permit, which they said would open the door to the destruction of more rare wetlands.

Defort revoked the permit in May 2018 after a weeklong hearing, ruling that the DNR didn’t have all the information required by state law.

On May 24, former DNR Secretary Dan Meyer, who was appointed by Gov. Scott Walker, agreed to Meteor’s request to review the judge’s decision.

The company also challenged Defort’s ruling in court, but a Monroe County judge put that case on hold pending the DNR review.

Clean Wisconsin and the Ho-Chunk sued, claiming the agency did not have the authority to review itself, but a Monroe County judge dismissed that case.

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“We thought any appeals of the ALJ’s ruling should have gone to the courts,” said Evan Feinauer, a staff attorney with Clean Wisconsin. “We’re where we thought we should be, just a little bit later.”

Carolyn Garnett, legislative attorney for the Ho-Chunk Nation, praised Cole’s decision.

“The permanent destruction of these rare wetlands would have a profound impact on the Nation’s people, land and cultural heritage,” Garnett said in a news release.

Meteor attorney John Behling said the company is reviewing the decision.

DNR spokeswoman Sarah Hoye did not respond to questions about the reasons behind Cole’s decision, the timing, or whether the DNR would defend the permit in court.

“We are open to discussions with all of the parties on the next steps toward resolution of this matter,” Hoye wrote. “That said, because the matter remains pending in litigation, we will not comment further.”

The case has spanned several years, multiple courts and two administrations as well as a boom-and-bust cycle for Wisconsin’s frac sand industry, which supplies silica used to extract oil and gas from deep rock formations.

Twice last spring Republican lawmakers in the state Assembly passed legislation that would have allowed Meteor to proceed with the project even while the appeal was pending. Both bills died when the Senate declined to take them up.

As part of its permit application, Meteor proposed to restore and preserve more than 640 acres of other lands near the 752-acre site. However, the DNR determined those mitigation efforts “are not likely to fully compensate” for the lost wetlands.

Meteor said the project was the only way to prevent the forest being cut down by the current landowner, who needs money to pay off fines for previous wetland violations.

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