Supervisors Only Hear Few Comments Before Deciding
On Wednesday morning at least 100 people turned out for a Jefferson County Supervisor meeting to discuss and consider an appeal of the DNR permit for the Daniels Site, the 7497-head hog confinement proposed by Bill Huber, a partner with Agri-Way Partners. The CAFO will generate 2.3 million gallons to be spread in the Lake Darling watershed.
The Iowa DNR granted the Daniels Site a preliminary construction permit on September 10 that the supervisors could appeal within 14 days. Supervisor Lee Dimmitt wanted to waive the right to an appeal at the Monday, September 17 weekly board meeting, which would have hastened the construction of the Huber CAFO by a week. But the supervisors weren’t able to discuss or vote on the waiver since the agenda verbiage didn’t provide enough details to inform the public according to the county attorney. At JFAN’s urging, and echoed by two dozen JFAN supporters, the supervisors scheduled the special meeting for Wednesday to discuss a possible appeal.
Documented Evidence of a Watershed Threat
In preparation, JFAN President and Executive Director spoke with Wally Taylor, an environmental attorney for the Iowa Sierra Club with substantial knowledge of DNR administrative law. He said that a construction permit could be appealed on general environmental grounds, even though a board of supervisors passed the Master Matrix.Taylor was involved in such an appeal several years ago.
He also confirmed that the supervisors would not have to argue the appeal. The argument could be delegated to others, such as JFAN, but only the supervisors had the legal right to file for an appeal.
Rosenberg and Sierra Club member Diana Krystofiak worked together to prepare evidence of an environmental threat to Lake Darling and nearby residents. Krystofiak contacted the Iowa DNR to verify Lake Darling beach advisories and received data on three in 2017 and four in 2018 for either high levels of E. coli bacteria or microsystin, a toxin produced by blue-green algae. She also researched two fields in the manure management plan that had former homesteads to determine if there were unplugged wells remaining on the property. According to Jefferson County Sanitarian Dan Miller, the wells were properly closed.
Rosenberg mapped out the watershed to demonstrate that the fields receiving manure had several tributaries that connect to Honey Creek, which drains into Lake Darling. She confirmed her findings with a Ryan Stouder, a Washington DNR Field Officer who double-checked the tributaries with Google mapping. Krystofiak also confirmed the Huber CAFO was in the watershed with DNR Ambient Lake and Beach Monitoring Coordinator Dan Kendall.
Only half the 100 people who attended Wednesday’s meeting could fit into the supervisors’ office; the other half tried to hear the proceedings while standing in the lobby but that was difficult. The supervisors didn’t move the meeting into the lobby where everyone could hear as they did during a meeting in 2017 where about 80 people came out to support a moratorium resolution. While there were some supporters of the CAFO present, a good 90% present were opposing the Huber confinement.
Evidence Not Accepted
Sanquist started the meeting off saying it was not a public hearing and that public comments wouldn’t be part of the process. She then made a motion to appeal the CAFO based on the inadequacies of the road. The Daniels Site will be located on Nutmeg Avenue, which is currently a narrow, Class B dirt road that Huber will be graveling at his own $20,000 expense. Sanquist said, regardless, the narrowness of the road would pose problems for construction and feed delivery trucks and that Cerro Gordo County did a similar appeal a few years ago. There was some discussion, and when put to a vote, Supervisors Lee Dimmitt and Dick Reed voted nay.
The discussion then turned to voting on the appeal in general. Dimmitt said there were no legal grounds to appeal the construction permit. Rosenberg raised her hand to address this but Reed told her she couldn’t speak. After some additional discussion Sandquist asked if there was any new evidence for an appeal.
Rosenberg immediately stood up and shared her discussion with attorney Wally Taylor, that the supervisors could appeal on general environmental grounds, and that the CAFO posed a threat to the Lake Darling watershed given the amount of manure that would be generated. She explained that she mapped out the watershed and confirmed with the DNR that the CAFO and three fields receiving manure sat in the watershed. Rosenberg spoke of the beach advisories and attempted to give a copy of the maps she made to the supervisors that showed the drainage from those fields towards the lake.
But Sandquist stopped her and said that the watershed didn’t constitute legal grounds for an appeal, and the supervisors didn’t take the maps Rosenberg tried to give them. Rosenberg also tried to address the environmental impacts of the toxic gases that would be generated by a CAFO of this size, but again she was told that didn’t constitute appealable grounds before she had a chance to mention a vulnerable 92-year-old neighbor.
Reed made a comment that the E.coli found in Lake Darling was from geese but Krystofiak addressed that misinformation. While some of the E. coli may be from geese, she also explained that the DNR’s Dan Kendall said the water is tested at the shore and in the middle of the lake, which accounts for the link to geese. What is not tested, she said, is the water that comes from the tributaries into Lake Darling that would likely contain E. coli traced to hogs.
The supervisors didn’t allow many more comments before taking a vote against appealing the DNR’s construction permit.
Supervisors Challenged for their Understanding of the Law
There was more discussion after the vote. Dimmitt read a part of the Iowa Code that he said limited what the supervisors could do with regards to an appeal and that they needed new evidence to show why the permit should be denied. But Francis Thicke, a former member of the Environmental Protection Commission, corrected him saying that there was much more to the Iowa Code that gave them the ability to act than the slice that Dimmitt read.
Carole Simmons, Chair of the Southeast Iowa Sierra Club, read a section of Chapter 65 of the Iowa Code on appeals that said supervisors only needed to let the DNR know within 14 days and that if the county wanted to appeal, no new evidence needed to be submitted. (65.10(7), page 32)
At one point Dimmitt said that if people wanted to take it to the EPC, they should just go ahead. But Rosenberg replied, “We can’t. Youhad to file the petition for an appeal for that to happen. You didn’t do that. You closed the door on us.”
Informal comments continued after the meeting’s conclusion with many people expressing dissatisfaction. One man encouraged the supervisors to act with more vision, referencing the eventual public recognition of cigarette harm. Another spoke of getting a small group of farmers and CAFO opponents together in a mediated discussion to bridge the divide. Joe Ledger, one of the few CAFO farmers present, applauded the decision of the supervisors.
JFAN is very disappointed with the supervisors’ decision. While we knew it wouldn’t be easy to get an appeal approved, we expected at least openness to a presentation of requested evidence and a legitimate discussion of the facts rather than being closed out of the process.
Last December, Webster County supervisors filed an appeal on two hog confinements at the urging of their constituents. This is exactly what we were asking Jefferson County Supervisors do to. You can read that here.
You can view a video recording of most of the meeting here.