DRIFTLESS WATER DEFENDERS CHALLENGES DNR FINAL DECISION ON SUPREME BEEF WATER USE PERMIT
CONTACT INFORMATION
Driftless Water Defenders
James Larew
Phone: 319-541-4240
Email: Admin@driftlesswaterdefenders.com
RELEASE DATE: JANUARY 31, 2024
Driftless Water Defenders (DWD), an Iowa non-profit environmental law and advocacy organization focused on reducing farm-related water pollution and improving the state’s water quality, announced today that it will appeal the final decision of the Iowa Department of Natural Resources (DNR) in a case involving water use by one of Iowa’s largest cattle feeding operations.
DWD is challenging the DNR’s decision to renew a water use permit to Supreme Beef, LLC, which feeds thousands of cattle just a few hundred feet from the headwaters of Bloody Run Creek, located in Clayton County, one of the state’s purest cold-water streams. DWD will be filing its appeals in the Iowa District Court for Clayton County.
The action by DWD today is the latest response to DNR’s decision in 2022 to renew Supreme Beef’s permit to take nearly 22 million gallons of water annually from the Jordan aquifer in Northeast Iowa. A group of Iowa citizens, who later formed DWD, challenged the permit renewal in a contested administrative case, arguing the DNR did not take into account the effects of the withdrawal on the public interest and the environment.
After a 2-day hearing in early February 2024, Administrative Law Judge Toby Gordon decided against the DNR. Judge Gordon ruled on November 12, 2024, that the agency failed to follow express statutory language, found in Iowa Code §§ 455B.262(2), 455B.264(2), 455B.267(4) and 455B.271(2)(d), which requires the DNR to ensure that the public’s interest and the environment—and not just the interests of water use permit applicants such as Supreme Beef—must be taken into consideration.
Judge Gordon remanded Supreme Beef’s permit-application process back to the DNR for further review and consideration in alignment with his findings.
On January 9, 2025, DWD filed a complaint with the agency, supported by a petition signed by more than 80 citizens, asking the agency to cancel Supreme Beef’s water use permit, based on Judge Gordon’s legal and factual determinations.
Those determinations were made clear in Judge Gordon’s November ruling:
“It appears to the undersigned,” he wrote, “that the DNR has relied too heavily on their lack of authority to control or regulate waste water and air quality within a water use permit, to the exclusion of meeting their statutory obligation to consider whether the water use meets a “beneficial use,” which includes the statutory duty to consider such factors as the public’s health, safety, interests in lands or waters, and prevention of injury to persons or property, as spelled out in Iowa Code section 455B.271(2)(d). [Carmily] Stone [, the Supervisor of the Water Supply Engineering Section] agreed under cross examination, that these factors go beyond the consideration of the mere quantity of water being extracted. This is in contradiction to DNR’s historical approach to issuing water use permits, in which the agency has considered primarily, if not exclusively, only the volume of water extracted, the rate of water extraction, and the impact on the remaining quantity of water in the water source, and the water available to surrounding land owners and prior permittees.
Regardless of how the DNR breaks up responsibilities within their department, the obligation imposed by the statute to consider the protection of the public’s health, safety, interests in lands or waters, and prevention of injury to persons or property, as spelled out in Iowa code section 455b.271(2)(d) goes beyond the consideration of the mere amount of water being extracted.
IT IS THEREFORE ORDERED:
Because the DNR did not fully consider certain factors except through the lens of quantity of water, the 2022 water permit renewal issued to Supreme Beef in this matter should be REMANDED to the DNR to consider factors beyond the mere quantity of water, such that the DNR should articulate a reasonable and rational basis for finding a “beneficial use” exists, or does not exist, when considering the following:
1) The “effect of the water use upon the owners of any land which might be affected,” and “the interest of the people” and the “best interests and welfare of the people.” Iowa Code §§ 455B.262(2), 455B.264(2).
2) Whether the granting of the permit “will unreasonably impair the long-term availability of water from a surface or ground water source in terms of quantity or quality, or otherwise adversely affect the public health or welfare.” Iowa Code § 455B.267(4).
3) The beneficial use in the interest of the people, and that the public and private funds for the promotion and expansion of the beneficial use of water resources be invested to the end that the best interests and welfare of the people are served. Iowa Code § 455B.262(2)[.]
4) The public’s health, safety, interests in lands or waters, and prevention of injury to persons or property. Iowa Code § 455B.271(2)(d).”
On January 16 the DNR largely ignored the judge’s ruling and issued a “final agency action” to renew Supreme Beef’s water use permit. The agency’s decision opens the way for appeals by DWD under both the original permit application process and also DWD’s recently-filed citizen-supported complaint.
“The DNR’s response evades the letter and spirit of Administrative Law Judge Toby Gordon’s determination,” said Attorney James C. Larew, who represents both the original appellants in the water permit process litigation and also in the more recent complaint. “The agency violated Iowa law when it renewed the water use permit to Supreme Beef. DNR has apparently learned nothing. As a result, and if uncorrected by the Iowa District Court on appeal, the integrity of one of Iowa’s finest water bodies—Bloody Run Creek—will have been placed in great jeopardy.”
According to evidence provided by DNR witnesses at the February 2024 trial, since the 1950s’ implementation of a statute governing the DNR’s issuance of water use permits, the agency has never denied a water use permit to any applicant.
In that same time period, Iowa’s water quality has been seriously degraded. Iowa’s cancer rates have accelerated. Our citizens reside in a state with the second-highest cancer rate in the U.S., and Iowa is the only state where new cancer rates significantly increased between 2015 and 2019
Nitrate pollution in Iowa’s water is nearly entirely caused by the production of corn and soybeans, and by manure from large livestock and poultry feeding operations that runs off into state waters, degrading our lakes, streams and aquifers and threatening the safety of our drinking water.
The hearing before Judge Gordon was held nearly one year ago, during the first week of February. In the months that followed, while awaiting his decision, nitrates in Bloody Run Creek spiked to levels exceeding most of the other monitored streams and rivers in Iowa.
Attorney Larew reacted to the DNR’s action. “Context is everything,” he said. “By ignoring the law as described by Judge Gordon, DNR is permitting Supreme Beef to operate one of the largest confined cattle feeding operations in our state to be located within a couple hundred feet of sinkholes near the head waters of one of Iowa’s water treasures: Bloody Run Creek.”
Chris Jones, who testified as an expert witness in the water use permit challenge trial, and who now serves as President of DWD, said: “Iowa DNR has been charged by citizens with protecting our natural resources and overseeing the safety of our drinking water. Here they choose once again to prioritize exploitation over protection of one the last remaining streams in Iowa still clinging to a shred of its original integrity. Members of DWD have spoken clearly: they’ve had enough, and they demand better.”
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Attached: ALJ Toby Gordon Decision (November 12, 2024)
Chris Jones Declaration (August 9, 2024)
DWD Complaint (January 9, 2025)
DNR Decision (January 16, 2025)
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