Judge: DNR must consider environment, health for water permits

State regulators must consider environmental and public health effects before they grant permits to withdraw large quantities of water from the ground, according to an administrative law judge.

That is at odds with long-standing procedure at the Iowa Department of Natural Resources, which has focused on the quantity of water to be pumped from the ground and what effects it might have on existing water supplies and stream flows.

The judge's Tuesday ruling is the result of a challenge to the water use permit of Supreme Beef, a large cattle feedlot in northeast Iowa that was built near the headwaters of a coveted trout stream.

The site near Monona, which has a capacity of about 11,600 cattle, has been the subject of legal disputes for years because of its potential to pollute Bloody Run Creek and groundwater. It has a basin that can store 30 million gallons of manure.

Opponents of the facility have successfully challenged a plan in court that guided how that manure was disposed of, and they believe the judge's recent ruling about the water permit has the potential to shutter it.

"It's a thunderous change," said Jim Larew, an attorney for seven residents who challenged the permit. "If this takes hold it will have far-reaching implications."

The ruling has the potential to affect facilities beyond animal operations, including a proposed carbon dioxide pipeline system. Opponents of Summit Carbon Solutions' project have objected to water use permits the company has sought to cool the captured greenhouse gas before it is injected into the system.

It's unclear how the DNR will respond to the judge's decision. Because it was part of an administrative appeal, it can be overruled by the department's director, Kayla Lyon.

"We’re currently reviewing the decision," said Tammie Krausman, a spokesperson for the department.

The DNR has insisted that water use permits are not the appropriate way to regulate water quality.

If Lyon doesn't adopt the judge's order, Larew said his clients will take their challenge to state district court.

'Beneficial use' dispute

The DNR requires water use permits for those who withdraw at least 25,000 gallons of water per day from the ground.

Supreme Beef has two wells that go more than 600 feet into the ground that pumped an average of about 53,000 gallons per day in 2023, according to DNR documents.

Its permit was first issued in 2017 and was up for renewal in 2022, which some residents opposed. They questioned whether the permit met a "beneficial use" requirement and estimated that Supreme Beef would exceed the permit limit based on its cattle capacity. They appealed the renewal in July 2022.

The permit allows Supreme Beef to pump up to 21.9 million gallons annually. Jared Walz, a co-owner of the site, testified that the facility typically has about 8,400 cattle despite its larger capacity. And he said water meters on the wells showed that they pumped a total of 19.5 million gallons last year, or about 89 percent of the permit limit.

But Administrative Law Judge Toby Gordon concluded the DNR did not sufficiently determine that the withdrawal was a beneficial use under Iowa law.

"In order to carry out the meaning of the statute, these considerations must go beyond the evaluation of water quantity alone, meaning the water quality should also be considered," Gordon wrote.

He noted part of the law that says the department cannot issue a permit if it will impair water "quality, or otherwise adversely affect the public health or welfare."

Supreme Beef opponents argued that the facility could not operate without water from the wells, so the permitted water withdrawals are indirectly responsible for the environmental threats posed by the facility.

Witness testimony for the appeal indicated Bloody Run was once the highest-quality stream among those monitored in the state, but that it now routinely has among the highest nitrate concentrations.

Nitrate is an important nutrient for growing corn that is added to farm fields with manure and commercial fertilizers. But it can leech into streams and is harmful to aquatic life and people.

Supreme Beef distributes its manure in nearby farm fields by injecting it into the ground, DNR documents show.

The topography of the area is porous and has sinkholes that heighten the risk of groundwater contamination from the surface. There is a sinkhole within several hundred feet of one of the facility's six barns and its manure basin.

State rules require animal confinements to be at least 1,000 feet from the sinkholes, but Supreme Beef is considered an "open feedlot" because a roof doesn't cover the entire facility, and the restriction doesn't apply.

Next steps

Gordon's proposed order said the DNR needs to reconsider Supreme Beef's permit renewal with "factors beyond the mere quantity of water."

Those include public health, safety, potential groundwater impairments and the public use of land and water. Gordon did not indicate whether he thinks the facility's water permit meets the beneficial use requirement.

Larew expects a decision from the DNR about the order within the next month.

"It's impossible to believe, in my opinion, that a rational agency could allow the largest confined cattle feeding operation in the state of Iowa to be positioned at the headwaters of such a creek," he said. "I just have to believe that the evidence heavily favors the public interest here."

The department could reevaluate the renewal and approve it again with more justifications. It approved a modified manure plan last year for the facility after a district judge overruled the department's approval of the initial plan.

Those who challenged the water permit renewal include Linda Appelgate, Scott Boylen, Mary Damm, Alicia Mullarkey, Larry Stone, Tammy Thompson and Steve Veysey.

Comments: (319) 368-8541; jared.strong@thegazette.com