Eldon McAfee - Iowa Environmental Regulations & Nuisance Case Update

IOWA ENVIRONMENTALIOWA ENVIRONMENTAL
REGULATIONS & NUISANCEREGULATIONS & NUISANCE
CASE UPDATECASE UPDATE
IOWA PORK PRODUCERS ASSOC.IOWA PORK PRODUCERS ASSOC.
IOWA PORK CONGRESSIOWA PORK CONGRESS
January 27, 2016January 27, 2016
Eldon McAfeeEldon McAfee
Julie VyskocilJulie Vyskocil
Erin Herbold-SwalwellErin Herbold-Swalwell
Brick Gentry, PCBrick Gentry, PC

AG NUISANCE CASESAG NUISANCE CASES
IowaIowa
 No ag nuisance cases went to trial in Iowa in 2009,
2010, 2011, 2012, 2013 or 2014
 2008 - last 3 cases that went to trial in Iowa (2 cattle
and one hog operation) – in all 3 juries found no odor
nuisance
 One case to trial in Iowa in 2015
 Poweshiek County – 2490 hd swine finishing site –
one plaintiff - jury verdict on 2/4/15: $525,000
(comprised of $100,000 in loss of past enjoyment,
$300,000 loss of future enjoyment & $125,000 loss
in property value) – case is on appeal to Iowa
Supreme Court
2

IowaIowa
 Cases currently pending in Iowa courts
 Wapello County – swine finishing site – jury trial
begins Feb. 1
 Federal court, southern district, eastern division –
swine finishing site – Henry County – jury trial set
for Mar. 21
 Buchanan County – cattle feedyard – jury trial set
for April 20
 Poweshiek County – swine finishing – jury trial set
for May 31
 Wapello County – swine finishing – jury trial set for
Aug. 15
3

IowaIowa
 Cases currently pending in Iowa courts
 Poweshiek County – swine finishing – jury trial set
for Jan. 24, 2017
 Adair County – swine finishing – filed July 2015 –
trial not yet scheduled
 Union County – swine finishing – filed July 2015 –
trial not yet scheduled
 Davis County – swine finishing - 3 cases - filed Dec
2015 – trial not yet scheduled
 Linn County – swine finishing – filed Dec 2015 – trial
not yet scheduled
4

 Odor and flies
 Unreasonable interference with use and enjoyment of
property
 “normal person standard”
 Who was “first in time”
 Fact witnesses
 Parties to case
 Family and friends
 Independent third parties
 Expert witnesses
 Odor, including monitoring & modeling
 Livestock and site management
 Property appraisers 5

Steps to help to avoid lawsuitSteps to help to avoid lawsuit
 Location: separation distance, prevailing winds &
topography
 Tree buffers: existing trees and fast growing
trees planted with slower growing species
 Ventilation and exhaust fan management
 Management of manure storage and application
 Clean pigs and buildings
 Mortality handling
 Overall operational environmental management,
including neighbor awareness, communication
and relations
6

Protection for producerProtection for producer
 Insurance
 Standard farm liability policies normally don’t cover
– but producer should always check with their
insurance company and/or an attorney
 2013 Illinois court decision found that odor from hog
manure was not “traditional environmental pollution”
and therefore the pollution exclusion in the policy
did not exclude coverage for the producer
 2014 Wisconsin court decision found that manure
that polluted a well was a pollutant under the
insurance policy and the pollution exclusion in the
policy excluded coverage for the producer
7

 Insurance
 Environmental policies available
Coverage provided for odor nuisance claims
Coverage for legal and other costs of
defense
Insurance is a contract - carefully review the
policy terms to make sure there is coverage
for odor nuisance claims
Check with company as to experience with
nuisance cases and how the cases will be
defended
8

 Nuisance defense laws
 All 50 states have some type of law
 Most favorable court decisions to producer
 Indiana - 2014
 Missouri Supreme Court decision – 4/14/15
 2011 Missouri law that established a nuisance
defense for Missouri livestock and crop farms
limiting lawsuit damages to loss of property
value and medical costs is constitutional
 Least favorable court decisions to producer
 Iowa – 1998 and 2004 Supreme Court decisions
finding laws unconstitutional
9

 Animal Feeding Operations Nuisance Defense, Iowa
Code section 657.11
 Iowa Supreme Court in 2004 ruled this section was
unconstitutional under the Iowa Constitution as
“unduly oppressive” in this case where the hog
operation was 1,300 ft. north of neighbor who sued
and the neighbor had lived there 22 years before
the hog operation was built in 1996
10

COMPOSTING MORTALITIES
 500 ft. from a residence other than the producer’s
 Not in a wetland
 100 ft. from private well, 200 ft. from public well
 50 ft. from property lines
 100 ft. from flowing or intermittent streams, lakes or
ponds
 Minimize formation of leachate & prevent runoff into
and out of the compost facility
 Minimize ponding, any ponding that occurs must be
corrected within 48 hours
 All weather surface of compacted soil, compacted
granular aggregates, asphalt, concrete or other
relatively impermeable material
11

 Minimize odors, dust, noise, litter and vectors which
may cause nuisance conditions or health hazard
 Storage of finished compost for no more than 18
months
 Mortalities may be composted off-site at another
livestock operation without a permit – no restriction on
distance and do not have to be from the same owner
or operator
 Mortalities that died from infectious disease that can
be spread by scavengers or insects or that died from a
reportable disease must be disposed of under Iowa
Dept. of Ag requirements
12

 Transportation vehicles must be constructed to
prevent release of mortality contaminated
materials
 In transporting, the most direct haul route that
avoids biosecurity risks must be used
 Compost facilities must be designed for
average annual death loss from all sites using
the facility, raw materials, and finished
compost
 Mortalities from catastrophic death losses (fire
or power outage) cannot be composted until
DNR approves
13

 Mortalities must be in the compost within 24 hours
 To control leachate, odors and animal scavenging,
must have 12 inch bulking agent cover, 6-12 inches
between carcasses, and 12-24 inch base depending
on size and number of mortalities
 Compost cannot be removed until soft tissue is fully
decomposed
 Compost (including bones) must be applied to
cropland to minimize runoff into waters of the state
 Application of compost to other than cropland needs
DNR approval (pasture?)
 DNR policy: If mortalities are composted in manure,
the compost pile must also meet manure storage
structure requirements
14

MANURE APPLICATION
Frozen or snow covered ground
 Does not apply to:
Manure from open feedlot operations
Dry manure (can’t be pumped & doesn’t flow
under pressure) (frozen liquid manure does
not qualify as dry manure)
Liquid manure from confinement operations
using formed storage with less than 500
animal units
Liquid manure injected or incorporated on
the same date of application
15

MANURE APPLICATION
 No surface application of liquid manure from a
confinement operation on
Snow covered ground from Dec. 21 to Ap. 1
Frozen ground from Feb. 1 to April 1
except in an emergency
Frozen ground
Impermeable to soil moisture
Does not include ground frozen only in
top 2” or less
Snow covered ground
At least 1” of snow or ½” of ice
16

MANURE APPLICATION
An emergency is when there is an
immediate need to apply manure
due to unforeseen circumstances
beyond the producer’s control
Includes, but is not limited to:
natural disaster
unusual weather conditions, or
equipment or structural failure
17

MANURE APPLICATION
 To apply liquid manure on frozen or snow covered
ground due to an emergency, a producer must:
 Telephone DNR field office before application -
2010 rule: caller must give:
Owner’s name & facility ID No.
Reason for emergency app. & app. Date
Estimate of gallons to be applied & fields in
MMP to be applied on
 Apply the manure on land identified in the MMP
– either in the original MMP or the next updated
MMP submitted to DNR after the manure is
applied
 Apply the manure on land with a P Index 2 or
less
18

MANURE APPLICATION
 To apply liquid manure on frozen or snow
covered ground due to an emergency, a
producer must:
During manure application and for 2 weeks
after, block any surface tile intake on land in
the MMP & down grade
Properly manage the manure storage
structure – as of Dec. 21, 2015, must have
storage to avoid application from Dec. 21 to
April 1 – before then, could use emer. app.
procedures even though not enough storage
For structures built after July 1, 2009, have
at least 180 days of storage
19

MANURE APPLICATION
 Other considerations:
 Remember Iowa law requirement that manure
must be applied so as to not cause water
pollution
 Does it comply with EQIP requirements?
 Will it impact federal NPDES permit
requirements?
 If the operation has a master matrix and took
points for injection or incorporation of manure
(item 26(e)), to surface apply because of an
emergency producer must obtain written
approval for a waiver from a DNR field office
 Contact DNR as soon as possible for
assistance, even if not required by law
 Community and neighbor relations
20

ANIMAL CAPACITY Animal weight
capacity (AWC) and animal unit capacity (AUC)
 If the CFO was constructed before 3/1/03 and
not expanded since, use animal weight capacity
(AWC) for DNR regulations
 If the CFO was constructed before 3/1/03 and
expanded since, use AWC for separation
distances but AUC for other DNR regs
 AWC: the maximum number of animals confined
at any time in a confinement operation multiplied
by the average weight during a production cycle
21

ANIMAL CAPACITY
Animal weight capacity and animal unit capacity
 If the CFO was constructed after 3/1/03, use
animal unit capacity (AUC) for DNR
regulations
 AUC: maximum number of animals maintained
at any one time in a confinement operation
multiplied by the animal unit factor
Swine animal unit factor
.4 – swine weighing more than 55 pounds
.1 – swine weighing between 15 & 55
22

ANIMAL CAPACITY Animal unit capacity
– double-stocking, over-stocking, etc.
Example: 2,400 hd wean-to-finish site
(960 AUC) double stocked with weaned
pigs with 2,400 hd moved off-site for
finishing
AUC:
Nursery phase: 4,800 x .1 = 480
Finishing phase: 2,400 x .4 =
960
AUC for site is 960
23

 Must double or over-stocked pigs be moved
before any pigs reach 55 pounds? Or before the
average weight of the pigs on-site is 55 pounds?
 Neither because the AUC calculation is based
on the number of pigs weighing more than 55
pounds and the no. weighing 55 pounds or less
 Safest approach to ensure compliance may be
to remove all overstock pigs before any reach
55 pounds, HOWEVER, AUC law allows some
of the pigs to weigh more than 55 pounds if
some weigh 55 pounds or less
24

ANIMAL CAPACITY
Animal unit capacity – double-stocking, etc.
 AUC calculation:
 2,400 hd wean-to-finish site (960 AUC)double-stocked
 No more than 1,600 can weigh more than 55 pounds
before the double-stocked one-half must be moved
off site (1,600 x .4 = 640 au’s & 3,200 x .1 = 320 au’s
for a total of 960 au’s)
 Works out to a factor of .333 (i.e., to determine the
maximum number of head that can weigh more than
55 pounds before reaching AUC, multiply the total
number on-site while double stocked by a factor of .
333)
 Triple stocked factor is .111
 Producers must account for the additional manure from
additional stocking of weaned pigs in their MMP
25

 Options (other than reducing capacities) if exceeding animal
weight or unit capacity:
 If built below 500 AUC, and now more than 500 AUC but less
than 1,000 AUC:
 Get MMP and CDS and meet required separation
distances
 To have CDS, must meet DNR concrete standards
 If built above 500 AUC but below 1,000 AUC, and now more
than 1,000 AUC:
 Get construction permit (already have CDS) – must meet
matrix if county requires matrix and meet required
increased separation distances
 If have construction permit but exceeding permit capacities:
 Get new construction permit with increased capacity –
must meet matrix if county requires matrix and meet
required separation distances
26

CONFINEMENT OPERATIONS
One or two?
 To determine if a permit or manure management
plan is required, and if concrete standards apply:
 Two CFO’s are one operation when:
 At least one of the two is constructed after
5/21/98
 There is common ownership or management,
and
 They are adjacent; or
Utilize a common area or system for manure
application
 Adjacent – CFO’s within:
1,250 feet if the combined AUC is <1,000
2,500 feet if the combined AUC is >1,000
27

CONFINEMENT OPERATIONS
One or two?
 To determine required separation distances:
 Two CFO’s are considered to be one operation when:
 At least one of the two is constructed after 3/21/96
 There is common ownership or management, and
 They are adjacent
 Adjacent – CFO’s within:
 1,250 feet if the combined AUC is <3,000 for finishing
or nursery (<1,250 AUC for farrow-gest. or <2,700
AUC for farrow to fin.)
 1,500 ft. if the combined AUC is >3,000 but <5,000 for
finishing or nursery (>1,250 but <2,000 AUC for
farrow-gest. or >2,700 but <5,400 AUC for farrow to
fin.)
 2,500 feet if the combined AUC is >5,000 for finishing
or nursery (>2,000 AUC for farrow-gest. or >5,400
AUC for farrow to fin.)
28

AFO - IOWA LAW
 Confinement Feeding Operation (CFO)
An AFO in which animals are confined to
areas which are totally roofed
 Open Feedlot Operation (OFO)
Unroofed or partially roofed AFO (outside
area must be at least 10% of inside area) if
crop, vegetation, or forage growth or
residue cover is not maintained as part of
the AFO while the animals are confined
 CFO cannot discharge under Iowa law
29

CAFO
 CAFO - Three types:
Large CAFO, Medium CAFO
Designated CAFO
 CAFO must obtain a federal discharge permit
(NPDES) if the CAFO discharges pollutants to
a water of the US
 Without an NPDES permit, can be no
discharge – with an NPDES permit, can
discharge from greater than 25-year, 24 hour
storm event – unless a CFO under Iowa law
30

LARGE CAFO
 More than the number of animals in any one of the
following categories:
 2,500 swine weighing 55 pounds or more
 10,000 swine weighing less than 55 pounds
 125,000 chickens other than laying hens OR
82,000 laying hens (other than liquid manure)
 30,000 laying hens or broilers (liquid manure)
 700 mature dairy cows
 1,000 cattle
 500 horses, 10,000 sheep, 55,000 turkeys
 DNR rules: 1,000 animal units where more than
one category is kept in the same type of operation
31

MEDIUM CAFO
 The number of animals in any one of the
following categories:
 750 to 2,499 swine weighing 55 pounds or
more
 3,000 to 9,999 swine weighing less than 55
pounds
 Other categories for horses, sheep, turkeys,
dairy cattle, cattle and poultry
 DNR rules: 300-999 animal units where more
than one category is kept in the same type of
operation
 AND meet requirements on next slide 32

MEDIUM CAFO
Manure or process wastewater is
discharged:
Into waters of the US through a man-
made ditch, flushing system, or other
similar man-made device; or
Directly into waters of the US which
originate outside of and pass over,
across or through the facility or
otherwise come into direct contact with
animals in the AFO.
33

CAFO - COMBINE CFO/OFO
EPA rules have never distinguished
between OFO’s and CFO’s
EPA rules require OFO & CFO animals
in same category to be added together
Iowa law has always kept OFO & CFO’s
separate for purposes of Iowa law
CAFO/NPDES permit requirements:
OFO & CFO animals in same category
at an AFO are added together
34

EPA CAFO RULE
COMBINE CFO/OFO
 Mixed animal CAFOs
 Do not add animal numbers from different
categories to determine if CAFO threshold is
triggered, as long as all animal numbers are
below the threshold and different types of AFO
under Iowa law (CFO & OFO)
 Once the CAFO number threshold is met for one
category, all manure generated by the AFO is
subject to NPDES requirements
Example, hog CFO with more than 2,500 head
on the same site as cattle OFO with less than
1,000 head – cattle OFO cannot discharge or
must have NPDES permit
35

DESIGNATED CAFO
 DNR may designate any AFO that is not a
Large or Medium CAFO as a CAFO if after an
on-site inspection DNR determines it is a
significant contributor of manure to waters of
the US using the following factors:
AFO size & amount of manure discharged
AFO location near waters of US
Means of conveyance to waters of US
Slope, vegetation, rainfall, and other factors
36

DESIGNATED CAFO
 DNR cannot designate a CAFO with less than
the Medium CAFO animal numbers unless:
Manure or process wastewater is
discharged:
Into waters of the US through a man-
made ditch, flushing system, or other
similar man-made device; or
Directly into waters of the US which
originate outside of and pass over, across
or through the facility or otherwise come
into direct contact with animals in the
AFO. 37

DNR EVALUATION
 DNR may evaluate an AFO and order
remedial action if:
Manure is discharged into a water of the
state
Manure is causing or may reasonably be
expected to cause pollution of a water of the
state
Manure is causing or may reasonably be
expected to cause a violation of state water
quality standards
38

CAFO
A discharge also includes
discharges from land application
However, ag stormwater discharges
do not require an NPDES permit
An ag stormwater discharge –
CAFO must apply manure in
compliance with a site specific
nutrient management plan
39

CAFO
Is NPDES permit needed for an
“accidental discharge”?
If the cause of an accidental discharge
that has occurred in the past has been
changed or corrected, the CAFO
would not be considered to discharge
and an NPDES permit would not be
required due to the accidental
discharge
40

CAFO - NPDES PERMITS -
DISCHARGES
Proof of a discharge?
Inspections
Visual observation – photos
Samples
Evidence of “flowpaths”?
Computer modeling? – No, 2009
federal administrative law decision
– but EPA may be revisiting this
approach
Flyovers? EPA 41

DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
Internet search: “EPA/DNR work plan
materials”
DNR adopted NPDES permit rules for
CFO’s that discharge
Note: Under Iowa law these rules
could not be more strict than federal
rules
DNR revised rules on manure
application setbacks for CAFOs with
NPDES permits to mirror EPA rules
Standard operating procedures for
CAFO discharge inspections 42

DNR must conduct desktop assessments
and on-site NPDES inspections at all large
CAFOs and desktop assessments and, if
necessary, on-site inspections at medium
CAFOs within 5 years (Sep. 2018 –
approx. 20% each year)
DNR does desktop assessments based
on publicly available information, including
DNR files and AFO database –
Producers, particularly those with
medium-sized CFOs, should now make
sure that info is correct before DNR does
desktop assessment
43

DNR must prioritize assessments in the
following order:
AFOs with spills, significant releases,
or legally sufficient complaints
involving discharges to waters of the
U.S. since Aug. 2008.
Large open feedlot CAFOs and
medium sized open feedlot AFOs,
including combined AFOs and CFOs
Large CAFO CFOs
Medium sized CFOs
44

 Are on-site inspections required?
Large CAFOs
On-site inspections required
In conjunction with MMP, earthen basin,
or other routine DNR inspections or
reviews.
Not necessary if there has been a DNR
on-site inspection after Nov. 1, 2011 &
DNR determines facility does not
discharge to water of the U.S. The
inspection must be functionally equivalent
to NPDES on-site inspections, including
having written documentation of findings.
45

Medium-sized CFOs
Discharge to water of U.S. in last 5 years
Significant release within last 5 years and
the release presented a substantial threat
of discharging pollutants to waters of the
U.S.
CFO is less than ¼ mile from and
draining toward a water of the U.S. and
uses uncovered manure or litter storage
Any others that the desktop assessment
indicates an on-site inspection is needed
46

 Combined (OFO & CFO) medium sized AFOs
OFO portion is less than ¼ mile from and
draining toward a water of the U.S. and the
OFO portion has more than 300 animal
units
 Medium sized OFOs
OFO is less than ¼ mile from and draining
toward a water of the U.S.
47

DNR on-site inspections of CFOs for
discharges requiring an NPDES permit
CFOs that have previously had an
accidental discharge to a water of the
U.S.
Note: No NPDES required if the
conditions that caused the
discharge have changed or been
corrected
48

DNR on-site inspections of CFOs for
discharges requiring an NPDES permit
DNR must contact producer 1 – 3
days before inspection
Producer to have MMP and other
facility records available
DNR will not enter confinement
buildings
DNR must follow producer’s standard
bio-security policy, if none, must
follow DNR bio-security protocol
49

Because a DNR inspection will cover
DNR rule compliance in addition to
NPDES permit requirements, before
any NPDES inspection by DNR
producers should:
Conduct a complete environmental
review (env. self-audit under Iowa
law) with consultant, advisor,
attorney, etc.
Follow DNR self-audit rules to report
any violations discovered
50

IOWA ENVIRONMENTAL
SELF AUDITS
 Initiated by business owner to determine
environmental compliance
 Benefits:
 Immunity from penalties if a violation discovered
during audit and promptly reported to DNR,
before DNR investigates
 Confidentiality of audit report
 No immunity from penalties if:
 DNR not properly notified
 Violations are intentional or result in injury to
persons, property or environment
 Substantial economic benefit giving violator a
clear economic advantage over competitors
51

When notified of inspection,
producers should:
Ask for copy of desktop
assessment before on-site
inspection
Discuss with DNR whether
previous on-site inspection
qualifies for NPDES inspection
Inform DNR of bio-security policy
Contact consultant, engineer, etc.
52

 During inspections DNR is to:
Review MMP and other records
Ask about maximum number of head
confined at one time over last 12 months
Inspect (documentation will include photos):
Manure storage structures
Manure stockpiles
Perimeter tile – inspection port or outlet
Feed storage
Mortality handling areas and composting
Areas downhill of CFO
Discharges? Photos & samples
53

 DNR on-site inspections of CFOs for
discharges requiring an NPDES permit - after
the inspection DNR is to:
Complete inspection report within 2 weeks
Document whether operation was
discharging to a water of the U.S.
Include requirements (violations of rules, if
any, and time frames for correction) and
recommendations (suggested items that are
not violations but suggestions to improve
environmental performance)
Send letter, inspection report and regulatory
status form
54

DNR must enforce penalties “to
create a stronger deterrence to
noncompliance”. DNR was
required to:
Revise penalty calculations,
including method to properly
calculate economic benefit for
noncompliance
Develop checklists for
enforcement actions
55

DNR must provide progress
updates
Quarterly reports to EPA and
post on DNR website
Submit annual reports.
If DNR hasn’t completed 20% of
the NPDES inspections each
year, they must propose
modifications to EPA to meet
the 5 year requirement
56

OPEN BURNING
 DNR rules prohibit open burning of combustible
materials unless:
 DNR grants a variance
 Exemptions include:
 Trees and tree trimmings & landscape waste
 Recreational fires
 Residential waste
 Paper or plastic pesticide containers and seed
corn bags. Must be ¼ mile someone else’s
building, livestock area, wildlife area or water
source. Cannot exceed one day’s accumulation
or 50 pounds. If causes a nuisance, DNR may
order relocation of burning.
 Effect of rule: “Burn barrels” at livestock buildings are
prohibited.
57

EPA AIR EMISSIONS REGULATION
 Zook v. EPA
 Environmental plaintiffs alleged EPA was required
to list emissions from animal feeding operations as
“criteria pollutants” and set standards for those
pollutants under the Clean Air Act
 The federal District Court for the District of
Columbia dismissed the case ruling that EPA could
not be required by the courts to take the action
demanded by the plaintiffs. On appeal the federal
appeals court for the DC Circuit upheld the
dismissal.
 In Nov. 2015 the U.S. Supreme Court denied the
application to appeal.
58

EPA AIR EMISSIONS REPORTING
 Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) &
Emergency Planning and Community Right-to-Know
Act (EPCRA) air release reporting requirements:
 Qualifying Releases must be reported: more
than 100 pounds of H2S or NH3 per 24 hour period
 Not required at this time if farm was signed up
under EPA Air Compliance Consent Agreement –
reporting may be required for these farms once
the monitoring study is completed
 Exemptions
59

 EPA Rule – issued 12/18/08, effective 1/20/09:
Exemption to CERCLA & EPCRA air release
notification requirements:
 CERCLA – Any release of a hazardous substance
from animal waste from farms.
 EPCRA - Any release of a hazardous substance
from animal waste from farms that have fewer than
the number of animals in any of the following
categories:
 700 mature dairy cows
 1,000 veal calves
 1,000 cattle (other than above)
 2,500 swine – 55 pounds or more
 10,000 swine – less than 55 pounds
 Also includes horses, sheep, turkeys, chickens,
and ducks
60

3 Step Process
 Telephone DNR & Local Emer. Response
Committee
 Initial written report within 30 days
 Follow-up written reports:
If significant increase
Increase in emission levels above the
reported normal range of the continuous
release
Status report
Filed within 30 days of the one year
anniversary of the initial written report
61

Iowa Environmental Regulations Handbook
In depth discussion and analysis of
environmental regulations, with practical
points for analysis and compliance
DNR Construction Requirements
DNR Manure Management
Requirements
Example separation distance waivers &
manure agreement
www.iowapork.org; Producer Resources;
Iowa Environmental Regulations Handbook
62

DES MOINES WATER WORKS LAWSUIT -DES MOINES WATER WORKS LAWSUIT -
CLEAN WATER ACTCLEAN WATER ACT
Lawsuit
“Citizen suit” in U.S. District Court,
Northern District of Iowa, Western
Division, Judge Mark W. Bennett
Legal precedent? No previous
court decisions supporting
DMWW’s claim that field tile lines
are point sources
63

 Petition filed by DMWW on Mar. 16, 2015; against 10
Drainage Districts (DD’s) in Buena Vista, Sac, and Calhoun
counties
 Trial date, Aug. 8, 2016; estimated 2 week trial; pre-trial
motions due by April 1, 2016
 On Jan. 11 the federal judge certified the following questions
to the Iowa Supreme Court for a ruling after briefing and
argument by the parties:
 Do the DD’s have unqualified immunity from DMWW’s
claims for money damages & that the DD’s be required
to get NPDES permits?
 Is Iowa law on DD’s unconstitutional and does the
DMWW have a property interest that qualifies for a claim
of a Taking under the Iowa Constitution?
64

 Allegations by DMWW:
 Clean Water Act: Alleges discharges from field
tile lines are discharges from “point sources”
without an NPDES permit under the Clean
Water Act
 Iowa Code 455B: Alleges discharges from field
tile lines are discharges from “point sources”
without a permit under Iowa law
 Public, Statutory and Private Nuisance
 Trespass, Negligence, Taking without
compensation, and Due Process & Equal
Protection
65

DMWW:
Independently owned & operated
public utility
Authorized under Iowa Code, but
cannot levy taxes
Owned and funded by customers
Board appointed by mayor of Des
Moines
Installed nitrate removal facility 1992
66

 Drainage Districts:
Authorized by Iowa Code to establish and
maintain unified drainage systems to drain
farmland
Assess fees to landowners for joint drainage
tile and ditches
Other than joint drainage tile and ditches, no
legal authority over use of farmer’s land
within the districts
67

Water Sampling by DMWW:
March 18 until Dec. 30, 2014
Nitrates
Nine different locations in the DD’s
DMWW states that all samples have
been taken in public road right-of-way
Some evidence that some sampling
has been on farmland within drainage
districts
68

Alleges discharges from DD field tile
lines are discharges from “point
sources” without an NPDES permit
under the Clean Water Act
CWA: Point sources are “discernable,
confined and discrete conveyances”
Alleges DD’s qualify as “point sources”
due to extensive, unified, and
engineered drainage systems
69

Alleges corn - soybean crop rotation &
lack of perennial crops coupled with
extensive subsurface tile drainage
results in excessive nitrates in
groundwater that are discharged to
surface waters
Alleges surface water runoff has fewer
nitrates than tile discharges – “the
conveyance of nitrate is almost entirely
by groundwater transport”
70

LIVESTOCK TRUCK WASHSESLIVESTOCK TRUCK WASHSES
2015 Legislation2015 Legislation
 HF 58 moves DNR construction and operation
requirements for livestock truck wash facilities
from the industrial permitting division of DNR to
the animal feeding division
 Establishes a regulatory category for “animal
truck wash facilities” which are operations
engaged in washing single-unit trucks, truck-
tractors, semitrailers, or trailers used to
transport cattle, swine, horses, sheep,
chickens, turkeys, or fish.
71

LIVESTOCK TRUCK WASHSESLIVESTOCK TRUCK WASHSES
2015 Legislation2015 Legislation
 Allows effluent from a truck wash to be stored in the
same structure as manure from a CFO or OFO
 Small animal truck washes:
 Only trucks or trailers owned by the owner of the
truck wash and the average total per day volume of
wash water used isn’t more than 2,000 gallons as
calculated on a monthly basis.
 Not required to have a DNR construction permit
 If use formed storage (concrete, etc.) for the truck
wash effluent are not required to meet separation
distances to residences, businesses, churches,
schools, public use areas or road rights-of-way.
72

Eldon McAfee - Iowa Environmental Regulations & Nuisance Case Update

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