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Iowa Nutrients Lawsuit Filed, Again

Iowa Nutrients Lawsuit Filed, Again

OMAHA (DTN) — Confined animal feeding operations and other farming operations in the Raccoon River watershed in west-central Iowa would be required to implement numerical nutrient runoff standards, the state would have to implement a plan to restore the watershed, and CAFO construction or expansion would be halted if a lawsuit filed in a district court in Polk County this week is successful.

The lawsuit was filed by environmental groups Iowa Citizens for Community Improvement and Food and Water Watch.

Nutrients runoff in Iowa has been the center of heated debate and legal action for the past decade. Most recently, a similar lawsuit filed by Des Moines Water Works was thrown out by a federal court.

The state implemented a voluntary nutrients-reduction strategy in an attempt to begin to cut runoff that finds its way into public drinking water systems and the Gulf of Mexico. But the state has acknowledged in recent progress reports on the strategy that, to this point, it has done little to reduce runoff.

In a statement to DTN on Thursday, the Iowa Corn Growers Association expressed disappointment in the latest lawsuit.

“This lawsuit comes as a disappointment to Iowa farmers, as it will be costly and cause scarce resources to be reallocated from current water quality projects without any guarantee of improving our waters,” the group said.

ICGA President and Logan farmer Curt Mether said the lawsuit couldn’t have come at a worse time for Iowa farmers.

“At a time farmers are struggling financially and also from historic flooding, this lawsuit is a low blow to farmers,” he said. “It will divert resources from implementing conservation practices and helping our farmers recover from the latest natural disaster.”

The ICGA said it has partnered with farmers and agricultural stakeholders, including the National Corn Growers Association’s Soil Health Partnership and Iowa Agriculture Water Alliance, on projects to improve water quality.

In March 2015, the Des Moines Water Works’ Board of Trustees filed a federal lawsuit against the Sac County Board of Supervisors, Buena Vista County Board of Supervisors and Calhoun County Board of Supervisors, in their capacities as trustees of 10 drainage districts. The suit alleged drainage districts were point-source polluters as defined by the Clean Water Act.

Coming as a big relief to Iowa farmers, a federal court dismissed all of DMWW’s claims in March 2017, ruling the Iowa General Assembly is the appropriate body to address the state’s water quality issues and not the court.

Iowa Soybean Association CEO Kirk Leeds said his group agrees with the previous federal court ruling that water quality issues are best solved by state lawmakers.

“At the end of the day, ICCI and their partners suggest a legislative argument in legal proceedings,” Leeds said. “Trying to use the court system when this is, in fact, a legislative issue. The water works lawsuit showed us this is best handled in the political arena, not legal. Asking for a legal remedy on a clearly political argument is not effective.”

Leeds said the ISA and its 11,000 family farms across the state are “very much committed” to the voluntary approach in reducing nutrients runoff.

“Despite what ICCI’s lawsuit might say, this is not a corporate-agriculture problem,” he said. “Family farmers are trying to improve management practices while at the same time battling profitability issues. Farmers have installed cover crops among several other conservation strategies at a time when profit is marginal to non-existent.”

THE LAWSUIT

The complaint filed in the new lawsuit alleges members of the two environmental groups “recreate on the Raccoon River between the confluence of the Des Moines River and the Polk/Dallas county line (the meandered section of the Raccoon River).”

They claim group members “suffer aesthetic injury and injury to their recreational use and enjoyment” of that section of the river as a result of “nitrogen and phosphorus pollution from agricultural sources.”

The lawsuit also alleges their members “suffer injury and fear of injury from drinking water provided by Des Moines Water Works that contains nitrates and cyanotoxins, and suffer injury” by paying the costs incurred by Des Moines Water Works to treat the water.

The lawsuit is seeking a jury trial and has asked the court to declare the public has a property interest in the river.

The Raccoon River drains 3,625 square miles, or 2.3 million acres, in west-central Iowa. About 73% of those acres are planted with corn and soybeans, and about half of the acres have tile drains. The state currently classifies the meandering section of the river as impaired.

The Iowa Department of Natural Resources established a cleanup plan for the Raccoon River, including a total maximum daily load, or TMDL, for the river. The state determined that agricultural uses contribute about 85% of the nonpoint-source nitrate loads near Van Meter, Iowa.

The TMDL calls for a 48% reduction of nutrients from nonpoint sources to meet the state’s Class C drinking water standard.

“But TMDLs are pollution budgets rather than regulations with the force and effect of law,” the groups argue in the lawsuit. “The Raccoon River TMDL does not require agricultural sources to limit nitrates or implement best management practices.”

NUTRIENTS STRATEGY

The state released a draft of the nutrient-reduction strategy in November 2012. The plan was adopted in May 2013, followed by revisions in 2014, 2016 and 2017. The goal was to reduce nitrogen and phosphorus by 45%, using voluntary, incentive-based programs for nonpoint sources.

The lawsuit said the strategy, by the state’s own admission, has not lived up to its billing. The state released a progress report on March 7, 2019.

“The report acknowledges that adoption of the strategy’s agricultural best-management practices was not making sufficient progress towards its nonpoint source nutrient reduction goal,” the lawsuit said.

“‘While annual progress continues in the implementation of these practices, early NRS efforts only scratch the surface of what is needed across the state to meet the nonpoint source nutrient reduction,” Iowa’s progress report stated, according to the lawsuit. “‘Progress has occurred, but not at the scale that would impact statewide water quality measures. Statewide improvements affected by conservation practices will require a much greater degree of implementation than has occurred so far.'”

CAFO PERMITS FALL SHORT

In July 2012, the EPA issued a preliminary investigative report into Iowa’s Clean Water Act permit program for CAFOs. EPA found the state did not issue permits to CAFOs when required, was not issuing adequate penalties for violations and had not been conducting adequate inspections.

In 2013, EPA and the state entered into a work plan agreement to address the issues.

“Through implementation of the work plan requirements, Iowa DNR discovered more than 5,000 potential animal feeding operations that were missing from the agency’s database altogether,” the lawsuit said. “These so-called ‘unknowns’ have seemingly escaped all applicable regulations and manure management plan requirements.”

The Iowa Department of Natural Resources animal feeding operations database lists more than 9,000 such operations in the state.

“Despite numerous documented manure spills and EPA’s findings that Iowa has not issued permits when appropriate, at the time of this petition’s filing, Iowa DNR has still not issued a single Clean Water Act NPDES (National Pollutant Discharge Elimination System) permit to a hog confinement animal feeding operation anywhere in Iowa,” the lawsuit said.

“The Iowa DNR has allowed animal feeding operations to discharge manure to non-navigable tributaries to navigable waters and to navigable waters themselves by authorizing application of manure on frozen, snow-covered ground. In 2019, the Iowa DNR authorized more than 100 animal feeding operations to apply manure to frozen, snow-covered ground.”

The lawsuit said the Iowa legislature has appropriated “insufficient funds for Iowa DNR to implement and enforce water quality protections” at animal feeding operations.

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