The Fat Lady has Laryngitis
A rare win against the livestock industry at Bloody Run Creek?
There’s a little ol’ proverb that goes like this: “It’s not over until the fat lady sings.” Maybe you’ve heard of it. It was coined not by Yogi Berra, as many suspect, but by some Texas sportswriter named Dan Cook who evidently was too nervous and uncertain to predict a win by the home team toward the end of a close and operatic basketball game.
The opera performance taking place at the headwaters of Clayton County’s Bloody Run Creek has been ongoing since 2017, when construction of a 8,000-12,000 head (depending on the month) beef feedlot or confinement (depending on what section of the law the operators were trying to avoid) began. First it was called Walz Energy because there was going to be biogas capture from a manure digester; now it’s called Supreme Beef because as it turns out the digester idea turned out to be just a little gas and not the real thing.
As you might imagine, a steer drinks (and passes) a lot of water, about 1 gallon per day per every 100 pounds of weight; thus a full grown steer drinks 12-14 gallons per day. Iowa DNR issued Walz/Supreme the required water use permit in 2017 enabling them to water their cattle. Any withdrawal of water exceeding 25,000 gallons per day requires a permit in Iowa. Two wells were subsequently drilled in the Prairie du Chien aquifer of northeast Iowa to supply the facility. Groundwater is abundant in this area but vulnerable to contamination due to the fractured bedrock and thin top soils characteristic of the 4-state Paleozoic Plateau, commonly referred to as the Driftless Area.
Water Use permits are valid for 5 years, after which the holder must apply for a renewal, which Supreme Beef did in 2022. Two fellows contested the renewal: Larry Stone of Elkader and Steve Veysey of Ames. Their reasoning: the existence of the water use permit threatened nearby wells and furthermore, water withdrawn from the aquifer, after passing through the cattle’s bodies, became a pollution threat to surface and groundwater resources in the area.
An administrative law judge heard arguments in the case on February 1-2, 2024. I testified at the hearing as an expert for the plaintiffs. The judge finally issued a decision today:
A finding for the plaintiffs, with the water use permit remanded back to DNR with the proposal that they consider the effects on water quality that may result from the issuance of the water use permit.
It would be dumb to spike the football here, and I won’t. This may not change much in the long haul, especially if DNR can successfully argue that the shit from 11,000 cattle poses no threat to one of 34 Outstanding Iowa Waters (according to them) and one of our few streams that support the reproduction of trout. Of course any reasonable person would conclude that these cattle and the 30 million-gallon lagoon, perched a mere eight feet above porous bedrock at the headwaters of this stream, is a dumb idea. Monumentally dumb. A catastrophic failure due to negligence or natural forces will kill the entire stream.
While I was at the hearing, the DNR lawyer admitted multiple times that the facility probably should not be there, given the unique environmental sensitivities of the area, but that the agency had no authority to deny the water use permit based on the pollution that might result from the decision. If you read through the document included at the end of this essay, you might note that a recurring theme is DNR staff all but saying. time after time, ‘yeah we know this operation is a dumb idea but did you really think we have the stones to get in front of this?’ This agency is NOT REGULATING. They’re endorsing things they know can potentially harm the public. And the staff knows it.
With his ruling, the judge is helping DNR brass notice that Iowa Code (455B.267(4) prohibits DNR from issuing a water use permit if the use “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. (Emphasis added by the judge). The judge further noted that the DNR must consider the “effect of the use upon the owners of any land which might be affected,” and the “best interests and welfare of the people.”
If you’re not saying holy shit right now, you should be.
Although the judge stated his ruling is specific to this one permit and should not be broadly interpreted as a new regulatory framework, it’s hard not to think this potentially has consequences for the 40,000 existing water use permits across the state of Iowa. Remember—we have some 8000 confined animal feeding operations that required a construction permit and many if not most of these have a water use permit that will need renewal within the next five years. Also remember that Summit Carbon Solutions will need more than a few water use permits to get the water they need to transport carbon dioxide (CO2) generated from ethanol production from Iowa to North Dakota. Could the Bloody Run case provide a template for future opposition? Time well tell. Meanwhile, the Fat Lady is resting her voice.
I attached the judge’s decision below. While reviewing it before writing this, I highlighted a few things and I left those highlights there. Most are in the second half of the document.
Finally, a hat tip to Larry Stone and Steve Veysey, the plaintiffs in the case. The two have volunteered countless hours taking water samples and researching geology, CAFO rules, attending meetings, and god knows what else because they think their fellow Iowans deserve better from the agriculture.
To see the people like me that are part of the Iowa Writers’ Collaborative, click on the link below. These folks are great writers and well worth your time.
Thanks! And we can't forget our attorney, Jim Larew, who pursued and persevered with the water permit suit. And other fellow plaintiffs Tammy Thompson, Mary Damm, Scott Boylen, Alicia Mullarkey, and Linda Applegate. And of course Sierra Club attorney Wally Taylor, who's been on board since 2017. But, indeed, it ain't over . . .
I hope Larry Stone and Steve Veysey take a short moment to celebrate such a rare positive moment, great work gentlemen!
Now that this template exists and the potential chink in the armor has been exposed, what will the upcoming legislative session do to close the gap before another group with standing attempts the same approach? The use of nuisance law in Pennsylvania in Corbin Addison’s “Wasteland” comes to mind.