From the March 2025 edition of The Prairie Progressive, Iowa’s oldest progressive newsletter. The PP is  funded entirely by reader subscription, available in hard copy for $15/yr.  Send check to PP, Box 1945, Iowa City 52244. Click here for archived issues.

Hog-tied, Part Two

Since its founding about nine months ago, Driftless Water Defenders, on behalf of its nearly 200 members, has initiated litigation on several fronts.

• On June 5, 2024, DWD President Chris Jones petitioned the E.P.A. Region VII, imploring that agency to take over enforcement of federal Clean Water Act laws from the Iowa Department of Natural Resources (DNR) with respect to concentrated animal feeding operations in the Driftless Area, due to the DNR’s utter neglect of its regulatory duties.

• DWD members have attended public hearings in Winneshiek County and have filed petitions in the Iowa District Court to challenge zoning changes and the issuances of permits made by the Board of Supervisors and Board of adjustment, respectively, to local farming operations to allow out-of-state investors to construct dairy-cattle manure digesters. The digesters, DWD alleges, will cause local dairy herd sizes to increase, with resulting increased amounts of nitrate-saturated residuals to be placed on the area’s fragile karst landforms and fragile soils.

• DWD is filing court documents in support of appeals made by others of a decision by the Iowa Utilities Commission, which has allowed Summit Caron Solutions to use eminent domain to benefit its private equity owners in the construction of the ill-advised CO2 pipeline.

• On December 23, 2024, DWD issued to AgriStar Meat & Poultry, LLC, located in Postville, a 60-day Notice of Violations and Intent to Sue under the Federal Clean Water Act (CWA). In that Notice, DWD has alleged that Agri Star has repeatedly violated its discharge permits issued pursuant to the CWA and that, as a result, DWD will be seeking, in the Federal District Court for Northern Iowa, in its capacity as a so-called “private attorney general,”declaratory and injunctive relief, civil penalties and other relief allowed by law.

• DWD is filing a formal complaint with the DNR, asking that agency to cancel a water use permit renewal earlier issued by it to Supreme Beef, thereby enabling a 10,000-head cattle feeding operation located in Clayton County, at the headwaters of Bloody Run Creek, one of Iowa’s purest streams to accumulate and spread manures and nitrates on farm land forming the creek’s watershed.

The complaint follows a major ruling issued by Administrative Law Judge Toby Gordon, who determined that when renewing the water use permit the DNR should have but failed to consider the impact of such a permit on the public interest and surrounding environment, as required by Iowa Code.

• DWD drafted and supports a new amendment to the Iowa Constitution (under Section 1 of Article 1) which expressly recognizes the fundamental right of Iowans to access clean water and air. In addition to protecting this fundamental right, the proposed amendment also imposes an affirmative public trust duty upon our government, under which agencies are charged with taking positive steps to protect and improve our natural resources. Three states in the United States currently have such public trust doctrines set forth in their constitutions: New York, Pennsylvania, and Montana.

Under the amendment, Iowa’s courts will be required to give strict scrutiny to any governmental action that impedes a citizen’s exercise of that fundamental right. Further,
under the amendment, the State of Iowa will have a new affirmative duty under the public trust doctrine: to protect our natural environment— including, importantly, our water
supplies—for public benefit, now, and into the future.

We are on the cusp of a new civil rights movement in Iowa—one dedicated to protecting this fundamental right. Like all civil rights movements in the past, this one, too, may well take many years and many election cycles before it becomes the law of our state. In Iowa, a constitutional amendment in identical form must be approved by the House and Senate in two consecutive legislative sessions. The amendment must then be approved by a majority of Iowa voters.

Until then, citizens of all political persuasions (cancer does not recognize political boundaries; nobody wants to drink or bathe in shit-water) would be wise to demand that their local, state, and national government officials protect public access to clean water and air.

In the yawning gap between the needs of Iowans for environmental protection and justice on the one hand, and on the other hand the lack of focus of our political leaders on these matters, Iowa citizens, acting on their own volition or working with others through citizen advocacy groups such as DWD, are encouraged to take action to support the civil rights movement that lies ahead of us. Let’s get going.

—Jim Larew practices law in Iowa City. Part One of this article appeared in the January 2025 issue of The Prairie Progressive

View Part One – theprairieprogressive.com/archive/