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Iowa Code (statutes) and Iowa Administrative Code (rules) - Water Withdrawal
Water Withdrawal is governed by Iowa Code 455B Subchapter III “Water Quality” Part 4 “Water Allocation and Use & Floodplain Control”. These laws are expressed as rules in Iowa Administrative Code 567 chapters 50, 51, 52, 53, and 54. Rules are created by government agencies to implement laws. Where agency rules do not adequately implement laws, it is the Iowa Code (laws) that expresses legislative intent. Laws trump rules.
A brief listing of applicable Iowa Code sections is given below. For a more complete discussion, please read the following document-in-preparation:
Iowa Code Sections – Water Withdrawal Permits and Floodway Protection
455B Subchapter III Part 4 Water Allocation and Use & Floodplain Control
455B.261 Definitions.
4. “Beneficial use” means the application of water to a useful purpose that inures to the benefit of the water user and subject to the user’s dominion and control but does not include the waste or pollution of water.
This facility will dispose of ~30M gallons of waste byproduct (manure), primarily on sloped ground in karst areas, at a rate of ~17,000 gallons per acre. Many of the fields have sinkholes. Manure and manure constituents running off to surface water, running into sinkholes, or infiltrating the soil into karst is pollution.
5. “Depleting use” means the storage, diversion, conveyance, or other use of a supply of water if the use may impair rights of lower or surrounding users, may impair the natural resources of the state or may injure the public welfare if not controlled.
The natural resources of the state include the designated Outstanding Iowa Water, Bloody Run Creek. This will be degraded by surface runoff from manure fields and from polluted springs feeding BRC. The public welfare in this area includes a robust tourism industry dependent upon clean water streams, and includes the right to uncontaminated drinking water from their wells.
16.“Waste” means any of the following: (a) Permitting groundwater or surface water to flow, or taking it or using it in any manner so that it is not put to its full beneficial use… (c) Permitting or causing the pollution of a water-bearing strata through any act which will cause salt water, highly mineralized water, or otherwise contaminated water to enter it.
It is a “waste” of water if the permitted use will lead to pollution of water bearing strata (the aquifer) through “any act”, such as spreading manure on HEL fields at a rate of 17,000 gallons per acre. Liquid manure (92-98% water) is water contaminated with nitrate, bacteria, pathogens, and other harmful constituents.
455B.267 Permits for beneficial use — prohibitions.
1. The director or the commission may issue a permit for beneficial use of water in a watercourse if the established average minimum water flow is preserved.
2. A use of water shall not be authorized if it will impair the effect of this chapter or any other pollution control law of this state.
This language defines a prohibition against pollution as a prohibition against violating pollution laws [statutes]. This applies beyond any narrow interpretation contained in agency rules. In your comments, please stress that the Department’s obligation must include consideration of statute requirements brought to their attention, even if not expressly delineated by rules.
3. A permit shall not be issued or continued if it will impair the navigability of any navigable watercourse.
4. A permit to divert, store or withdraw water shall not be issued or continued if it 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.
This is the language that forms the basis for most objections the public can make to the renewal of this permit. Tell your story! Did you have to dig a deeper well? At what cost? Has there been gastrointestinal or other serious illness in your family possibly linked to polluted drinking water? Does your livelihood depend upon nature tourism including clean, unpolluted trout streams? Do you simply enjoy hiking and fishing those streams? That’s “public health or welfare” in your county!
The Supreme Beef facility was built in karst terrain. Their own well borings document huge voids (caves) in the karst below parts of the site. One well onsite had to be plugged because of a huge void just 50 feet below ground level. This is sinkhole territory!
455B.281 Compensation for well interference.
1. If an investigation by the department, using information provided by the applicant or permittee and the complainant, discloses that a proposed or existing permitted use or combination of such uses is causing or will cause the delivery system to fail in a well which supplies water for a nonregulated use, the department may condition issuance or continuation of a permit upon payment by the permittee of compensation for all or a portion of the cost of a replacement water supply system or remedial measures necessitated by the interference.
This allows the well interference argument to be made BEFORE the interference occurs.
455B.275 Prohibited acts — powers of commission and executive director.
1. A person shall not permit, erect, use, or maintain a structure, dam, obstruction, deposit, or excavation in or on a floodway or floodplains, which will adversely affect the efficiency of or unduly restrict the capacity of the floodway, or adversely affect the control, development, protection, allocation, or utilization of the water resources of the state, and the same are declared to be public nuisances.
This is meant to protect floodways and the normal flow of water during flood events. The earthen basin was constructed in and obstructs a FEMA Zone A designated floodway. The damming effect of the basin and other structures will cause substantially more floodwaters to flow directly into the five sinkholes located in the NW wooded area of the property. The new floodpath may erode the NE side of the earthen basin, leading to failure.
The water permit reviewers do not need to determine the “legality” of the earthen basin, or of the cattle containment buildings, or of the nutrient management plan. Those decisions rest with other parts of the DNR. But they must consider the actual, probable, or possible pollution effects caused by those structures and the vast amount of additional manure that will be spread in the BRC watershed, and surrounding watersheds.