DAKOTA CITY — The Humboldt County Board of Supervisors may appeal to Iowa District Court over a hog confinement supervisors say shouldn’t be built northwest of Thor.

The supervisors challenged the new site’s permit at a hearing before the Iowa Environmental Protection Commission Tuesday. That commission ultimately took no action, said Jerah Sheets, board administrator for the Commission.

This means that the Iowa Department of Natural Resources’s approval of the site still stands, Sheets said.

In response to the Humboldt supervisors’ actions, an attorney for the livestock facility said the county should lose its privilege to evaluate construction permits, and the DNR should ignore any further recommendations from it until the county can submit a new construction evaluation resolution.

Also at the hearing, the EPC was not allowed to consider the hog site’s proximity to a business because that information wasn’t known by the supervisors during the original permitting process, said Humboldt County Supervisor David Lee.

The DNR had approved the site on Dec. 28, 2017, after receiving objections from the supervisors. The DNR said the site passed the requirements of the state’s master matrix, which is the formula used to determine where livestock confinements can be built.

Lee said the board would decide at Monday’s meeting whether or not to file the appeal.

“If it was up to me, yes I would take it to district court,” he said.

The Texas Finisher Farm, proposed by Barn Owl Farms LLC, is slated for construction at 240th Street and Texas Avenue and is affiliated with Iowa Select Farms.

The supervisors said they were concerned about a large county drainage intake near the site, and about the fact that the manure management plan includes a field that abuts the town of Thor and the Unkies restaurant in Thor.

“If you’re hungry, stop at Unkies over there. They have the best prime rib and food around,” Lee said. “They’re a fantastic restaurant, they have a business that pulls people in from all over.

“And they’re going to spread this manure right up within 850 feet of the restaurant. This field goes right up to the edge of town.”

Attorney Amy Johnson, of the Brown Winick firm in Des Moines, writing on behalf of Barn Owl Farms, said separation distance is measured to where the manure will be applied, not to the edge of the field. The closest point of potential manure application is actually 1,778 feet from Unkies, she said.

“Regardless, the manure from the Texas Finisher will be injected into the soil on the same day as application, meaning there is no separation distance requirement applicable,” Johnson wrote to the EPC.

The DNR’s written response to the EPC also said the site will inject manure. It further said that the facility meets all separation distance requirements.

Humboldt County was a swamp in the 1900s, Lee said, and once had more than 200 ag drainage wells — which sent water from farm tile back into the underground aquifer. The state has been working with all counties to get these closed and rely on surface waters and drainage districts instead to protect drinking water.

There are 11 of them left in Humboldt County, Lee said. Some are currently in the process of being closed.

“We’re closing them, what are we doing with them? We close the well, we tile out to the nearest river, stream or wherever we can dump it, and it all ends up in the Des Moines River heading south,” Lee said.

Less than 300 feet from the confinement site, there is a county intake in the road ditch, he said.

“If they have a spill or a leak or anything, that’s going to run right down to that tile,” said Lee. “That whole field is downhill.”

The county had the same situation in the western part of the county, Lee said. In that case the DNR didn’t allow the site to be built because it was within certain feet from a waterway.

The DNR’s response said the supervisors were asking the site to meet separation distance for a “major waterway.” That means a lake, reservoir or stream that is capable of floating a vessel that could hold a person, the DNR said, not a drainage ditch.

Johnson wrote, “Per Iowa law, confinement feeding operations in Iowa must retain all manure; therefore, there will be no draining of runoff from the Texas Finisher.”

Numerous people stood up and spoke opposing the hog confinement on Tuesday, Lee said — including the nearest neighbor.

“They’re within a half mile. She said they run a home business out of there, which we did not know,” Lee said.

When it was their turn to speak, “We told them, she’s running a business, therefore the 2,100 feet separation between her house and the site would fall where they would not get points for it in the matrix,” Lee said. “They would lose 30 points, which would put them under what they need for the master matrix.”

The EPC attorney said the commission can only use the information that was available before, not any new evidence, Lee said.

One of the nine commission members said the decision should be postponed, but that motion didn’t get enough votes to pass, Lee said.

Then another motioned to approve the site. Again there were not enough votes for the motion to pass. After that, the attorney wasn’t sure what would happen next, Lee said.

“Yesterday I got an email,” he said. “I guess when they don’t get enough votes to deny it or to pass it, either way, the motion drops, it reverts back to the DNR’s decision. So we lost it.”

Iowa code calls for the DNR to disregard any adopted recommendations from a county board if that board fails to comply with the evaluation requirements, Johnson wrote in the farm’s response.

The law states the county board must then submit a new construction evaluation resolution, she said.

The Humboldt board has applied the matrix “so arbitrarily and recklessly” that it failed to follow Iowa Administrative Code, Johnson wrote.

“The master matrix is not meant to be used as a tool to prohibit livestock producers who have complied with the applicable state laws from constructing and expanding their operations,” Johnson wrote. “Further, the master matrix is not meant to be used as a deterrent to livestock producers who must deal with frivolous complaints that are not based in law or fact such as the complaint levied by Humboldt County in the present manner.

“For those reasons, in addition to asking that the EPC uphold DNR’s decision to issue the permit, we also ask that the EPC send a clear message to counties that attempt to subvert the master matrix and disregard any further demands (i.e. recommendations) from Humboldt County until Humboldt County timely submits a new construction evaluation resolution.”

The EPC did not discuss this or vote on it Tuesday, Lee said.

Sheets said the time frame for counties to submit a construction evaluation resolution is in January.

Lee said he’s in favor of hog producers in general.

“We’re inundated with these hog buildings,” he said. “I’m not against the hogs. I eat more pork than I do chicken or beef. The hog industry has to make a living also. We understand that.

“In the 10 years I’ve been on the Board of Adjustment, we have taken three cases to the commission down there,” he added. “Right now we have five that the buildings are under construction or almost completed throughout the county. … We didn’t fight them. The majority of them we don’t fight. It’s just when they put them in the wrong place.”