Judge says Iowa DNR must consider environment and public health when weighing water permits

Iowa regulators must consider the environmental impact on water quality and public health when required to grant permits to large water users seeking to tap into the state’s groundwater, an administrative law judge said in a proposed decision in a controversial lawsuit near an Iowa cattle feed park. pristine northeastern Iowa trout stream.

If adopted by the Iowa Department of Natural Resources, it would be a change for the agency, whose experts first evaluate whether groundwater can support the withdrawal of additional water without harming neighbors who already draw on the state’s water resources.

According to testimony in the lawsuit, the state generally does not consider the impact on the environment because it is outside the water permitting process.

But Administrative Law Judge Toby Gordon wrote in his proposed decision: “DNR relied too heavily on its lack of authority to control or regulate wastewater and air quality within the water use permit, on whether legal obligations under the water use permit were met, and whether the water use constituted a ‘beneficial use.’ meets with.”

This includes evaluating the impact of the water permit on water quality, the public’s health and interest in “lands or waters” and preventing “serious harm to persons or property,” Gordon wrote.

The proposed decision comes after some Iowa residents objected to the DNR renewing a water permit for Supreme Beef, a large cattle feedlot. The 2022 permit renewal allowed the 10,000-head operation near Monona to continue drawing up to 21.9 million gallons per year from Jordan groundwater.

More: EPA: Iowa needs to add more rivers to impaired waters list, including Des Moines

James Larew, an attorney representing Iowans objecting to water permit renewals, said the proposed ruling means the Iowa DNR should not “make water use permit decisions completely in a vacuum.”

“For decades and for tens of thousands of water use permits, DNR has failed to consider the public interest when weighing whether to approve or renew water permit applications,” Larew said.

The proposed ruling gives opponents of water permit requests a legal basis to force regulators to take their environmental concerns into account.

Iowans have fought the Supreme Beef project since it was proposed, saying it could harm the region’s water quality, given the area’s karst geology, which allows surface water along with contaminants to more quickly and easily pass through the porous limestone to and from groundwater.

From 2023: Judge says Iowa DNR should reconsider plan allowing large cattle feedlot near Trout Creek

Northeast Iowa also has a significant number of sinkholes that provide a more direct channel to groundwater, according to testimony in the lawsuit. Residents said the project threatens Bloody Run Creek, a cold-water trout stream named one of Iowa’s Exceptional Waters. Supreme Beef sits at the headwaters of the creek.

Gordon’s proposed resolution goes to Kayla Lyon, director of the Iowa Department of Natural Resources, for consideration. The Iowa DNR said this week it was reviewing the decision.

Here’s what you need to know about the decision:

Why do some Iowans oppose renewing Supreme Beef’s water permit?

Chris Jones, a former research engineer at the University of Iowa, said sensors at Bloody Run Creek have recently recorded nitrate levels around 15 to 20 milligrams per liter and higher. The federal standard for drinking water is 10 milligrams per liter.

Jones said this is a change for Bloody Run. He said the stream is the “highest quality stream” in Iowa, based on data from nearly 70 sensors in the state from 2000 to 2020.

The overall water quality of northeast Iowa’s rivers and streams has deteriorated over the past decade, Jones said. About 7,000 wells statewide are contaminated with nitrate above safe levels, he said.

Tammy Thompson, who sells goat milk on her farm near Supreme Beef, said she had to spend $60,000 to dig a 560-foot-deep well after her nearly 250-foot-deep well became contaminated with nitrates and bacteria.

Gordon wrote that DNR officials “did not dispute evidence of increased nitrates in area streams and wells, but stopped short of acknowledging any specific connection between these increases and Supreme Beef’s operations.”

How does the Iowa DNR determine whether to issue a water permit?

More: More than half of Iowa’s tested streams and lakes are damaged, DNR report shows

When issuing a permit, the DNR considers whether the applicant plans a “beneficial use” for the water, such as providing drinking water, a manufacturing process, energy production, recreation, watering livestock, or irrigating crops; how much water will be withdrawn; In his proposed resolution, Gordon wrote about how removing the water would impact surrounding landowners.

According to the decision, Iowa DNR employees said the agency takes into account how much water is allocated but does not consider environmental impacts overall. “DNR argues that wastewater and air quality are regulated elsewhere in the Iowa Code and are unrelated to the issuance of a water use/allocation permit,” Gordon wrote.

While the Iowa DNR holds public hearings to gather information during the permitting process, longtime employee Michael Anderson, a senior environmental engineer, testified that he “cannot recall a time when public comments changed the DNR’s mind.” But that doesn’t mean “the decision has already been made before public comments are heard,” Anderson said.

What did the judge say in his proposed decision?

Gordon wrote that the DNR relied too heavily on “their lack of authority to control or regulate wastewater and air quality under the water use permit, their failure to meet their legal obligations to consider whether water use meets ‘beneficial use’: water quality, public health, includes safety “and prevention of injury to persons or property.”

“These factors go beyond simply considering the amount of water extracted,” he wrote.

“This contrasts with the DNR’s historical approach to issuing water use permits, in which the agency has primarily, if not exclusively, considered the volume of water removed, the rate of water extraction, and the impact on the amount of water remaining in the water source and surrounding landowners in previous years.” water available to permit holders,” he wrote.

“The Iowa General Assembly gave the DNR clear guidance on how to make these decisions … and this agency has chosen to ignore that language that exists to protect the public,” said Larew, the attorney for Supreme Beef opponents. “

What happens next?

Gordon sent the Supreme Beef permit renewal back to the DNR for reconsideration. Lyon, the agency manager, may approve the decision, modify it, or request that it be rewritten based on existing records.

If Iowans who object to the High Beef permit renewal disagree with Lyon’s change of decision, they can appeal in district court.

They said they were encouraged by the proposed resolution, but Gordon cautioned that it was “not intended to create a regulatory plan” within the DNR. He said the decision does not revoke the renewed permit for Supreme Beef and in no way intends to direct the DNR to its final conclusion or suggest that the agency should speculate about the mere possibility of future harms.

More: Is Iowa’s water getting clean after a decade of state efforts? It depends on who you ask.

Larew said he’s not sure how the decision would affect the water permitting process if it’s allowed to proceed.

The proposed decision comes as Summit Carbon Solutions is expected to request a permit to tap into the state’s groundwater. millions of gallons of water As it prepares to build an $8 billion pipeline to transport liquefied carbon dioxide emissions from ethanol plants in Iowa and neighboring states to an underground collection point in North Dakota.

Water is needed to meet the heat resulting from the intense pressure of the liquefaction process.

Donnelle Eller covers agriculture, environment and energy for the Register. Reach him at [email protected].

This article first appeared in the Des Moines Register: Iowa DNR must consider public interest when evaluating water permits