IOWA PORK PRODUCERS ASSOC. IOWA PORK CONGRESS January 27, Eldon McAfee Julie Vyskocil Erin Herbold-Swalwell Brick Gentry, PC

Transcription

1 IOWA ENVIRONMENTAL REGULATIONS & NUISANCE CASE UPDATE IOWA PORK PRODUCERS ASSOC. IOWA PORK CONGRESS January 27, 2016 Eldon McAfee Julie Vyskocil Erin Herbold-Swalwell Brick Gentry, PC

2 AG NUISANCE CASES Iowa No ag nuisance cases went to trial in Iowa in 2009, 2010, 2011, 2012, 2013 or 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

3 AG NUISANCE CASES Iowa 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

4 AG NUISANCE CASES Iowa 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

5 AG NUISANCE CASES 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

6 AG NUISANCE CASES Steps 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

7 AG NUISANCE CASES Protection 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

8 AG NUISANCE CASES Protection for producer 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

9 AG NUISANCE CASES Protection for producer Nuisance defense laws All 50 states have some type of law Most favorable court decisions to producer Indiana Missouri Supreme Court decision 4/14/ 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

10 AG NUISANCE CASES Protection for producer Animal Feeding Operations Nuisance Defense, Iowa Code section 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

11 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

12 COMPOSTING MORTALITIES 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

13 COMPOSTING MORTALITIES 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

14 COMPOSTING MORTALITIES 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 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

15 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

16 MANURE APPLICATION Frozen or snow covered ground 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

17 MANURE APPLICATION Frozen or snow covered ground 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

18 MANURE APPLICATION Frozen or snow covered ground To apply liquid manure on frozen or snow covered ground due to an emergency, a producer must: Telephone DNR field office before application 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

19 MANURE APPLICATION Frozen or snow covered ground 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

20 MANURE APPLICATION Frozen or snow covered ground 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

21 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

22 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

23 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

24 ANIMAL CAPACITY Animal unit capacity double-stocking, over-stocking, etc. 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

25 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

26 ANIMAL CAPACITY Animal unit capacity double-stocking, over-stocking, etc. 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

27 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

28 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

29 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

30 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

31 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

32 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: animal units where more than one category is kept in the same type of operation AND meet requirements on next slide 32

33 MEDIUM CAFO Manure or process wastewater is discharged: Into waters of the US through a manmade 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

34 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

35 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

36 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

37 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 manmade 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

38 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

39 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

40 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

41 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

42 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

43 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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 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

44 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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 Large open feedlot CAFOs and medium sized open feedlot AFOs, including combined AFOs and CFOs Large CAFO CFOs Medium sized CFOs 44

45 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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

46 DNR EPA WORKPLAN DNR REGULATION OF CAFOs Are on-site inspections required? 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

47 DNR EPA WORKPLAN DNR REGULATION OF CAFOs Are on-site inspections required? 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 Any others that the desktop assessment indicates an on-site inspection is needed Medium sized OFOs OFO is less than ¼ mile from and draining toward a water of the U.S. Any others that the desktop assessment indicates an on-site inspection is needed 47

48 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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

49 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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

50 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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

51 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

52 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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

53 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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

54 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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

55 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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

56 DNR EPA WORKPLAN DNR REGULATION OF CAFOs 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

57 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

58 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 the U.S. Supreme Court denied the application to appeal. 58

59 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 H 2 S or NH 3 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

60 EPA AIR EMISSIONS REPORTING 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

61 EPA AIR EMISSIONS REPORTING 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

62 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 Producer Resources; Iowa Environmental Regulations Handbook 62

63 DES MOINES WATER WORKS LAWSUIT - CLEAN 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

64 DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT 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

65 DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT 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

66 DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT 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

67 DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT 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

68 DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT 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

69 DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT 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

70 DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT 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

71 LIVESTOCK TRUCK WASHSES 2015 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, trucktractors, semitrailers, or trailers used to transport cattle, swine, horses, sheep, chickens, turkeys, or fish. 71

72 LIVESTOCK TRUCK WASHSES 2015 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