The Department of Natural Resources must consider impacts to water quality when issuing water use permits, a judge ruled in a case pertaining to Bloody Run Creek. (Photo from Google Maps)
An administrative law judge ruled recently that the Iowa Department of Natural Resources should consider water quality, as well as quantity, in the renewal of a water-use permit for a cattle operation near Bloody Run Creek.
The proposed decision is the latest development in a series of battles between water conservationists and the DNR over Supreme Beef, a 10,000-head cattle operation in Clayton County.
The issue centers on the DNR’s renewal of Supreme Beef’s water-use permit in 2022. The renewed permit would last five years and allow the livestock facility to withdraw water from two Clayton County wells at specified volumes and rates.
In July 2022, Tammy Thompson, Scott Boylen, Alicia Mullarkey, Linda Appelgate, Larry Stone, Mary Damm and Steve Veysey filed an appeal after the DNR approved the permit’s renewal. The dispute resulted in a February 2024 hearing within the state’s administrative law division, which handles disputes between citizens and government agencies.
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In his proposed decision, Administrative Law Judge Toby Gordon referenced the testimony of Christopher Jones, the head of Driftless Water Defenders, a non-profit water advocacy group. Jones’ testimony at the hearing detailed the topography of the driftless region and the “environmental changes” he had observed since Supreme Beef commenced its cattle feeding operation.
Bloody Run Creek is on Iowa’s list of “Outstanding Waters” and supports wild brown trout and stocked rainbow trout, which are very sensitive to water contamination.
The protection of this creek, and concerns around groundwater from the porous bedrock of the “driftless” region of northeast Iowa are central to arguments against the large cattle operation, which sits near the top of the creek.
According to the summary of his testimony, Jones took measurements from sections of the creek downstream from Supreme Beef that registered nitrate concentrations between 15 and 20 milligrams per liter. The U.S. Environmental Protection Agency’s maximum concentration level of nitrates to protect drinking water from health hazards is 10 milligrams per liter.
Jones said Bloody Run Creek and “all of the streams in northeast Iowa” have declined in water quality at “alarming” rates over the past 10-15 years. He argued levels in Bloody Run Creek rose because of manure runoff from the nearby feedlot.
Several citizen groups, including some of the appellants in the case and the Sierra Club Iowa Chapter, sued the DNR for its approval of Supreme Beef’s manure management plan, and won in district court in spring 2023. Supreme Beef was allowed to continue operating.
In his evaluation of the DNR’s testimony on the water-permit issue, Gordon found that the department’s position was that it “is strictly limited” to considering the amount being withdrawn, how the water levels might impact surrounding landowners and whether the water used serves a “beneficial use.”
Opponents agreed that Supreme Beef’s withdrawal of water for livestock is not an environmental concern, but said the permit allows the feedlot to operate and thus produce “large amounts of cattle manure.” The manure, they argue, is detrimental to the public because of its potential to pollute streams and groundwater.
According to the summary of the case, DNR took the position that consideration of a water-use permit isn’t supposed to include the impact on the environment because water and air quality are regulated under other sections of the Code of Iowa.
In his ruling, Gordon agreed, but said the DNR had relied “too heavily” on this division to the “exclusion of meeting their statutory obligation” of determining whether the water use was beneficial.
The DNR staff testified at the hearing that they were only aware of one prior occasion where a permit had been denied, and said they could not recall any instances where public comment influenced the decision of the DNR in issuing a permit.
The state agency also argued that watering livestock was listed as a prioritized beneficial use of water in the Code of Iowa, a position Gordon rejected, saying the list was “clearly intended to be implemented in times of drought or other emergency, which did not occur here.”
The administrative law judge also cited a section of the Code of Iowa that says a permit cannot be granted under “beneficial use” if the water will “unreasonably impair the long-term availability of water from a surface or groundwater source in terms of quantity or quality, or otherwise adversely affect the public health or welfare.”
Gordon ruled the DNR’s evaluations when approving a water permit renewal must include the quality, as well as the quantity, of the water. He ordered that Supreme Beef’s water-permit renewal be remanded to the DNR so the agency can consider “factors beyond the quantity of water” including the “public’s health, safety (and) interests in lands or waters.”
Gordon’s proposed decision will be reviewed by DNR Director Kayla Lyon, who can choose to adopt, modify, or reverse the decision.
James Larew, the appellants’ attorney, said the decision, if adopted by Lyon, would create a new kind of scrutiny in water-use permitting. “It will transform the area by requiring – for the first time in DNR’s history – the DNR’s consideration of the public’s interest,” Larew said.
Tammie Krausman, public information officer for the DNR, said “the department is reviewing the decision.”
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