Monday, November 26, 2007

More On The Franklin Wetlands' Fiasco: The Resource Loses Twice, Attorney Says

A few days ago I posted an item about a settlement that allowed a Franklin shopping center owner to proceed with a wetlands filling that the Wisconsin Department of Natural Resources (DNR) could and should have halted.

How do these things happen, you ask?

Peter McKeever, a statewide conservancy specialist who was involved in the case through one of the parties - - the Milwaukee County Conservation Coalition (MC3) - - sent me a "rest of the story" explanation that provides the shocking answer:

The Resource Loses Twice, by Peter McKeever:

It was bad enough that developer Mark Cartstenson got approval from the DNR, the Department of Commerce, and the City of Franklin to tear out 200 year-old oak trees and fill two small wetlands with his unimaginative and insensitive commercial development.

Had he done a good practicable alternative analysis, the agencies would have understood that there were less harmful ways to do his site plan.

And it was bad enough that when the DNR interpreted its decision on the wetlands to be applicable only to the direct impacts to the wetlands and not to the secondary impacts.

And it was bad enough that Franklin and the DNR allowed construction…er, read destruction…to continue after the decision was appealed.

But it was after the local citizens appealed that the agency really blew it.

The DNR issued its water quality certification on June 12. The local citizens met the 30 day deadline for appealing by filing their petition for a hearing on the 29th day, July 11.

Under the rules, the DNR has twenty days to decide whether or not to grant a hearing. If the hearing is not granted within those twenty days, it is deemed denied as a matter of law.

So what did DNR do? Staff prepared a letter approving the petition and granting the hearing request on July 27, well within the 20 days. So far, so good.

But the letter did not get signed by the Secretary and mailed until August 2….two days late.

Result: no right to a hearing, simply because the agency missed the mailing deadline. No opportunity for local citizens to have a hearing, present evidence, make their case, and argue that the permit should never have been granted. Ugly.

Its true the developer settled by agreeing to pay $46,000, to be used to purchase other wetlands in the area and that the DNR agreed not to allow developers to continue construction that adversely affects wetlands while the water quality permits are being challenged. Those are both good outcomes.

But the oak trees and the wetlands lost. They are gone, never to be seen again. They lost when the permits were granted, when construction was not stopped, and when local citizens could not challenge the decisions because of a missed deadline.

That’s bad.

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