“It’s on to court,” according to an attorney for opponents of a rural Center Point 4,160-head hog confinement operation.
The Iowa Environmental Protection Commission Monday unanimously approved the application from Matt Ditch, doing business as CP3 Farms LLC, despite concerns raised by the Linn County Board of Supervisors and Ditch’s neighbors.
Despite that approval, Wallace Taylor said his client will appeal to district court whether or not the supervisors join them.
His application is a “scheme concocted” to prevent the Linn County Supervisors from reviewing his proposal and an attempt “to wrongfully circumvent” rules regulating expansion of existing facilities, according to Wallace Taylor, an attorney representing neighbors.
In another case, the commission approved a permit for the expansion of a hog confinement facility in northern Winneshiek County despite opposition from the Board of Supervisors.
Millenium Agriculture LLC, owned by Brad Herman of Waukon, sought approval for expanding his confinement animal feeding operation in Highland Township from three to five buildings, an increase from roughly 2,700 hogs to 4,165.
Supervisor Dean Thompson said the “cost and consequences” of more hogs and more manure on the karst topography outweighed the benefits of the expansion. He told commissioners that more than $1 million of tax money has been invested in protecting and enhancing the Bear Creek watershed, which in 2011 attracted more than 59,000 anglers. Degradation of the stream also would result in loss of tourism revenue and diminish the area quality of life, Thompson said.
Although Taylor’s clients, who are neighbors of Ditch, were not directly involved in the agenda item before commissioners, they joined Linn County Assistant County Attorney Bob Hruska in asking that the DNR’s approval of a draft permit for Ditch to proceed be overturned.
Hruska raised several issues including whether material submitted by Ditch was factual and whether air rights should be seen in the same way as property rights.
He also questioned whether the supervisors were being granted due process because there is nothing in the process that allowed anyone other than Ditch to present evidentiary material. There was no opportunity for depositions or interrogatories.
“That is not meaningful due process,” he said.
Taylor and attorney Walter McNamara raised a number of legal issues, many dealing with whether Ditch qualified for an exemption for the expansion of existing facilities. Ditch, they said, was trying to use his parents’ hog nursery, which they transferred to him without transferring title to the land it sits on, as the basis for the exemption.
Ditch’s attorney, Eldon McAfee, countered that the law does not require a permit applicant to own the land or the facility, but that the facility exists.
“In hog productions, it’s not unusual to have someone own the building and manure pit, but not the land,” according to McAfee, who represents many pork producers.
After hearing from Department of Natural Resources personnel that the department had concluded Ditch’s application satisfied the rules and statutory requirements for the existing facility exemption, the commission voted to approve the permit.
According to Ditch’s proposal, he will expand from a 300-head nursery for pigs averaging 35 pounds to a 4,160 finishing operation for hogs averaging 150 pounds.
The application was Ditch’s second. He reduced the size of his earlier proposed “confined feeding operation” so it no longer needed to pass the DNR’s “master matrix evaluation” — a score card of environmental and safety issues.
Regina Behmlander of Center Point was among those who opposed the hog operation because they feel it will drive down property values, harm the safety of those living around it and harm the environment, as hog waste is applied to fields and then washes into streams and creeks.
Taylor estimated it could take a year to get a district court decision. If Ditch proceeds with construction and the court should rule against him he could be ordered to tear down the new building, Taylor said.