Iowa files to dismiss ICCI public trust water quality lawsuit

I am closely watching an environmental lawsuit filed on March 27, 2019, in the Polk County, Iowa district court against the State of Iowa and several officials and departments. The lawsuit was filed by Iowa Citizens for Community Improvement (ICCI) and Food & Water Watch, two environmental groups. The lawsuit alleges that the State of Iowa has 1) failed to stop pollution from impacting the Raccoon River, 2) failed to regulate animal feeding operations, and 3) failed to set numeric stream and water quality standards.

As a legal basis, the environmental plaintiffs claim first that citizens have been denied their substantive due process rights because the State failed to protect those citizens from harm, and second that those citizens are beneficiaries entitled to protection under a “public trust doctrine.” That doctrine holds that certain property rights, in this case the meandered portion of the Raccoon River, have been entrusted to the State for the benefit of its citizens.

The environmental plaintiffs also ask that the court to declare the Iowa Nutrient Reduction Strategy as null and void under the public trust doctrine and to enjoin all animal feeding operations in the Raccoon River watershed. If granted, the first request would give the green light to have judges essentially suspend both the legislature and the executive branches of government. The second request, if granted, would plunge rural Iowa into an immediate economic depression. Because the requests are so outlandish I really don’t see this lawsuit going anywhere and I wonder why the attorneys who signed on to prosecute the case bothered to get involved.

Because the case was filed against the State of Iowa, the duty of defending the State fell to Tom Miller, the Iowa Attorney General. Tom Miller has recently been under fire for joining in lawsuits on behalf of progressive causes and the legislature recently passed legislation to strip him of that authority.

Regardless, the State of Iowa recently filed a motion to dismiss the environmental groups’ lawsuit. Relying on clear U.S. Supreme Court precedent, the Attorney General’s motion to dismiss argues first that the environmental groups lack legal standing to file the lawsuit because they cannot casually link their alleged injury to the actions of the political actors that they sued. In other words, the political defendants that were sued were not the ones who are allegedly causing the pollution. Second, the Attorney General argues that the lawsuit unlawfully asks the district court to usurp the role of the legislative and executive branches of government and that the Iowa Constitution delegates those branches of government the power to enact and administer environmental laws by the Iowa Constitution and not the judiciary. Finally, the Attorney General’s motion states that the environmental groups must first exhaust their rights under Iowa’s Administrative Procedures Act if they want new regulations.

The last point is ironic in that the Iowa Environmental Council (IEC) and the Environmental Law & Policy Center (ELPC) actually worked for several years to try to get the DNR’s Environmental Protection Commission to enact strict limits for Iowa’s lakes. That effort was denied in February of 2019.

All three of these arguments in favor of a dismissal are clear winners. However, I suspect that this lawsuit is a “long play” and the first of several more challenges.

— James L. Pray

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What is the Green New Deal?

There has been a lot of confusion regarding a “Green New Deal.” The fact that people are now talking about a greenhouse gas reduction measure (regardless of what it really means) is an astounding turn-around from just two years ago when the new administration came to Washington with a pro-coal agenda. Now the winds are blowing in a distinctly different direction yet again.  But what is the Green New Deal? Politicians and pundits are quoted saying that the House Resolution 109  would ban cows, cars, trains, air travel, and pay people not to work.  I pulled up the proposed Green New Deal law (look it up by clicking the Congressional link above) and noticed several things. First, it is a resolution. As a resolution it really can’t do anything. It is just a statement. To be a law it needs to actually make something illegal, create a bureaucracy that will write rules that will make something illegal, or, conversely, make something that was illegal legal.  Here is what the proposed resolution says:

Resolved, That it is the sense of the House of Representatives that—

(1) it is the duty of the Federal Government to create a Green New Deal—

(A) to achieve net-zero greenhouse gas emissions through a fair and just transition for all communities and workers;

(B) to create millions of good, high-wage jobs and ensure prosperity and economic security for all people of the United States;

(C) to invest in the infrastructure and industry of the United States to sustainably meet the challenges of the 21st century;

(D) to secure for all people of the United States for generations to come—

(i) clean air and water;

(ii) climate and community resiliency;

(iii) healthy food;

(iv) access to nature; and

(v) a sustainable environment; and

(E) to promote justice and equity by stopping current, preventing future, and repairing historic oppression of indigenous peoples, communities of color, migrant communities, deindustrialized communities, depopulated rural communities, the poor, low-income workers, women, the elderly, the unhoused, people with disabilities, and youth (referred to in this resolution as “frontline and vulnerable communities”)

You can take a breath and know that this resolution does nothing it is claimed to do. It is about as effective as your New Year’s resolution where you said you were going to lose 40 pounds by March 1st, be able to lift 200 pounds, and run a mile in seven minutes.

To be fair, the resolution adds some projects:

(2) the goals described in subparagraphs (A) through (E) of paragraph (1) (referred to in this resolution as the “Green New Deal goals”) should be accomplished through a 10-year national mobilization (referred to in this resolution as the “Green New Deal mobilization”) that will require the following goals and projects—

(A) building resiliency against climate change-related disasters, such as extreme weather, including by leveraging funding and providing investments for community-defined projects and strategies;

(B) repairing and upgrading the infrastructure in the United States, including—

(i) by eliminating pollution and greenhouse gas emissions as much as technologically feasible;

(ii) by guaranteeing universal access to clean water;

(iii) by reducing the risks posed by climate impacts; and

(iv) by ensuring that any infrastructure bill considered by Congress addresses climate change;

(C) meeting 100 percent of the power demand in the United States through clean, renewable, and zero-emission energy sources, including—

(i) by dramatically expanding and upgrading renewable power sources; and

(ii) by deploying new capacity;

(D) building or upgrading to energy-efficient, distributed, and “smart” power grids, and ensuring affordable access to electricity;

(E) upgrading all existing buildings in the United States and building new buildings to achieve maximum energy efficiency, water efficiency, safety, affordability, comfort, and durability, including through electrification;

(F) spurring massive growth in clean manufacturing in the United States and removing pollution and greenhouse gas emissions from manufacturing and industry as much as is technologically feasible, including by expanding renewable energy manufacturing and investing in existing manufacturing and industry;

(G) working collaboratively with farmers and ranchers in the United States to remove pollution and greenhouse gas emissions from the agricultural sector as much as is technologically feasible, including—

(i) by supporting family farming;

(ii) by investing in sustainable farming and land use practices that increase soil health; and

(iii) by building a more sustainable food system that ensures universal access to healthy food;

(H) overhauling transportation systems in the United States to remove pollution and greenhouse gas emissions from the transportation sector as much as is technologically feasible, including through investment in—

(i) zero-emission vehicle infrastructure and manufacturing;

(ii) clean, affordable, and accessible public transit; and

(iii) high-speed rail;

(I) mitigating and managing the long-term adverse health, economic, and other effects of pollution and climate change, including by providing funding for community-defined projects and strategies;

(J) removing greenhouse gases from the atmosphere and reducing pollution by restoring natural ecosystems through proven low-tech solutions that increase soil carbon storage, such as land preservation and afforestation;

(K) restoring and protecting threatened, endangered, and fragile ecosystems through locally appropriate and science-based projects that enhance biodiversity and support climate resiliency;

(L) cleaning up existing hazardous waste and abandoned sites, ensuring economic development and sustainability on those sites;

(M) identifying other emission and pollution sources and creating solutions to remove them; and

(N) promoting the international exchange of technology, expertise, products, funding, and services, with the aim of making the United States the international leader on climate action, and to help other countries achieve a Green New Deal

Again, these “projects” are aspirational  and certainly don’t eliminate cows, planes, automobiles or trains. In fact, many of these projects can be found in both Republican and Democratic planks.  Even if this resolution passes the house, I will wait to see what the Senate is willing to do through 2020, and I bet this goes nowhere until after the next election.

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Sioux City Wastewater Supervisor pleads guilty to hiding illegal discharges

Iowa has not see a great deal of criminal environmental enforcement at either the federal or state level.  Nationally, EPA’s civil enforcement under the current administration is down to levels never seen in recent history (by the size of penalties).  As an attorney involved in representing industry I can attest to the drop in enforcement actions during the last two years. However, yesterday’s guilty plea by Patrick Schwarte that he had conspired to manipulate waster sample test results to fake compliance with discharge limits under federal law was pursued by the Department of Justice, acting on a tip to the Iowa Department of Natural Resources.  The case also predates the 2016 election. Both Mr. Schwarte and his boss Mr. Jay Niday were fired in 2015 after the faked test results were discovered. Mr. Schwarte faces seven years in the federal prison system and a fine of up to $260,000. It is unclear if this is a holdover from the previous administration’s efforts to enforce compliance or if this case is intended to send a message from the current administration. Both municipal and industrial wastewater operators do need to make sure that their operations are strictly above-board and in compliance with the law.

Source:

https://siouxcityjournal.com/news/local/crime-and-courts/ex-worker-pleads-guilty-to-sample-tampering-at-sioux-city/article_90ff387a-99d9-571f-8721-707c0c469067.html

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EPA and Army Corps Propose New Definition of “Waters of the United States.”

ditchOn December 11, 2018, the Environmental Protection Agency and the United States Army Corps of Engineers proposed a new definition of “waters of the United States” (WOTUS) and will soon publish the new definition in the Federal Register for a 60 day comment period. This is step two of the multi-step process that the Trump Administration has been following to reverse the Obama Administration’s efforts to come up with a new WOTUS rule.

What changed?  Here is a short summary of the most obvious changes based on the EPA’s own description:

  1. Ephemeral Streams are no longer jurisdictional. The 2015 and pre-2015 rules definitely included ephemeral streams as jurisdictional even though they do not meet the statutory definition of a navigable water.
  2. Ditches with ephemeral flows are not jurisdictional. Ditches constructed in upland are not jurisdictional.
  3. Non-navigable lakes and ponds may not always be jurisdictional.
  4. Wetlands that do not abut jurisdictional waters or are separated by a berm, and lack a direct hydrological surface connection to jurisdictional waters in a “typical year” are not jurisdictional.
  5. Groundwater is not WOTUS and this change will delete the “nexus” that typically linked separate wetlands.

Are these material and important changes? Yes. Regardless of whether you are for or against an expansive view of WOTUS, these are real changes and definitely farmer-friendly. Given the current makeup of the United States Supreme Court I predict that the regulations will be easily upheld.

A copy of the pre-publication version of the rule is available here: https://www.epa.gov/sites/production/files/2018-12/documents/wotus_2040-af75_nprm_frn_2018-12-11_prepublication2_1.pdf

James L. Pray

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November 15th is the deadline for Farmers to report Ammonia and Hydrogen Sulfide Releases from Animal Waste.

The EPA’s December 18, 2008 final rule exempted most farms from many reporting requirements in CERCLA and EPCRA. Exemptions were created under both EPCRA and CERCLA for emissions from animal waste for CERCLA and for smaller than CAFO-sized facilities under EPCRA.

Waterkeeper Alliance and a number of other citizen groups challenged the final rule in court and on April 11, 2017 the U.S. Court of Appeals for the District of Columbia Circuit struck down the rule. Waterkeepers Allilance v. EPA, 853 F.3d 527 (D.C. Cir. 2017)   Barring some last-minute reprieve, the court’s ruling takes effect on November 15, 2017.

As summarized by the EPA: “Starting on this date, farms releasing hazardous substances to air from animal wastes, equal to or greater than their reportable quantities, within any 24-hour period, must notify the NRC. For farms with continuous releases, this means that the initial continuous release notification needs to be made as of the effective date of the Court action (currently November 15, 2017).”

The reason behind the exemption in the first place is that the EPA admits that “there is no generally accepted methodology for estimating emission quantities at this time.”  Thus, farmers with operations of any size are in a quandary. Fail to guess correctly and they can be subject to massive fines, penalties and possible imprisonment. The EPA suggests that “farmers may need to report their releases in broad ranges that reflect the high degree of uncertainty and variability of these releases.”  Of course, the point of the reports under EPCRA are to alert the local population of a potential hazard. Given the lack of any accepted methodology, the mandated reporting is likely to be fairly useless and time consuming.

 

 

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THE IOWA POLICY PROJECT’S DRAINAGE DISTRICT RECOMMENDATION — Flogging a Dead Horse

The term “flogging a dead horse” means to continue a particular endeavor that is a waste of time as the outcome is already decided. This term is appropriate for the recently publicized Iowa Policy Project (“IPP”) report finding that “drainage districts have the legal authority to enhance pollution control efforts.” To anyone who has even casually followed the Des Moines Water Works case this must come as a real shock.  That such a fundamentally unsound report would get as much news coverage as it did is even more shocking.

The first recommendation by IPP is that drainage districts should exercise their “existing statutory authority” to address water quality. Didn’t the writers of the report read the Iowa Supreme Court’s Des Moines Water Works decision? If they had, they would have read this statement in the majority opinion:

The defendants’ lack of statutory authority to regulate farmer nitrate use cuts against revisiting our longstanding precedent, which rests upon the limited existence and powers of drainage districts.

Oddly, the IPP report goes on to quote the dissenting opinion by Justice Cady to support IPP’s recommendation. Of course, a dissent is called a dissent because the writers did not have enough votes for their opinion to have any legal effect.

The IPP report next suggests that drainage districts can use their eminent domain authority for the “expansion of drainage systems.” Some examples provided in the IPP report for this power include wetlands restoration and construction of bioreactors at discharge points. Aside from the fact that wetlands restoration is actually the opposite of what drainage districts are mandated to do, the writers of the report overlooked the simple fact that the power of eminent domain for drainage districts is based on the Iowa Constitution. The Iowa Constitution only grants districts the power of eminent domain “to construct and maintain levees, drains, and ditches.” It would be unconstitutional for a district to condemn farmland for bioreactors, wetlands, or other treatment options.

The IPP report next suggests that state regulators use the “local expertise and outreach available from drainage districts.” This is classic ivory tower wishful thinking. It is clear that the report writers have never tried to find any of these local drainage district water quality experts because if they had they would have quickly discovered that they don’t exist. Most districts don’t even have their own trustees and none have any ability to levy taxes to pay salaries for that activity. For the most part, drainage districts exist purely as legal structures managed solely by the county board of supervisors.

What I fear is that our legislators will read the headlines and think that the IPP has stumbled onto a long-hidden solution to Iowa’s water quality issues. This IPP report will only serve to divert attention from the search for realistic efforts that can make a real improvement to Iowa’s poor water quality.

James Pray

BrownWinick Law Firm

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Don’t step in that Puddle! The U.S. Army Corps of Engineers Adopts new Iowa Stream Mitigation Rules

Don’t walk in the rows during a rainstorm

Before someone decides to remove or alter “Waters of the United States” (“WOTUS”) through construction, plowing, grading or other similarly activities a 404(b) permit must be obtained. Part of the permitting process involves proving that the  “Least Damaging Practicable Alternative” has been chosen and also mitigating any loss of WOTUS.

On June 22, 2017, the U.S. Army Corps of Engineers adopted the “Iowa Stream Mitigation Method” to govern its review of 404(b) permits and to guide engineers, biologists, and environmental consultants on how to best mitigate destruction or damage to WOTUS.   This Iowa Method was approved despite the litigation surrounding the 2015 WOTUS rule. We must now apparently include stepping in puddles during rainstorms as an activity that may trigger felony arrest by the FBI (I’m stretching the argument just a bit to make my point).

There are both good and bad aspects to the rule.  A good aspect of the Method is that  it at least sets forth a clearer path that can be used to calculate mitigation efforts.  The bad aspect of the Method is that it adopts definitions that are currently stayed by a Federal Appeals Court. The 2015 regulation at 33 CFR section 328.3 defines WOTUS as “characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.” However, that definition has been stayed by a Federal Court in In re EPA, 803 F.3d 804 (6th Cir. 2015). In addition, the Trump Administration has proposed to abolish the new 2015 rule altogether. The old rule as enacted in 1986 is therefore in effect pending either abolition of the 2015 rule or further court action. That 1986 version of the rule does not contain the “bed and bank” language in the 2015 version and has a narrower definition of WOTUS streams, at least as it pertains to ephemeral streams.

What does this mean? Because the Iowa Mitigation Method adopts (see page 1) the stayed 2015 version of the regulation, it pushes federal jurisdiction past the currently enforceable limit to include any ephemeral stream with a defined bed and bank.  The 2015 rule that has been stayed further defines an ephemeral stream as any place where water runoff from precipitation occurs, even it that water is only visible in response to rainfall, the “streambed” is located above the water table year-round, there is no groundwater source, and there are no aquatic organisms.

Contrast this with the currently enforceable definition at 33 CFR section 328.3 from 1986:

For the purpose of this regulation these terms are defined as follows:

(a) The term waters of the United States means

(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(2) All interstate waters including interstate wetlands;

(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:

(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or

(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(iii) Which are used or could be used for industrial purpose by industries in interstate commerce;

33 CFR section 328.3 First, an ephemeral stream has none of the attributes listed at 33 CFR section 328.3(a)(3)(i)-(iii) (1986). An ephemeral stream has no recreational purpose, unless you count splashing in puddles recreational. Those types of streams have no fish or shellfish that can be taken and sold in interstate or foreign commerce, and they have no industrial purpose. In fact, the 1986 definition mentions only “intermittent streams” when expanding the definition, which certainly suggests that ephemeral streams were not intended to be covered in the 1986 version of WOTUS. Otherwise, the regulation would include both “intermittent and ephemeral streams.” By insisting on referencing the stayed 2015 rule, if a farm field has water running on it while it rains and there is a defined bed and bank, the U.S. Army Corps of Engineers may well deem that water to be jurisdictional and that any disturbance of the soil on that farm (by farming or development) will trigger penalties and potential criminal action if any disturbance of that water takes place without a 404(b) permit in hand. The U.S. Army Corps of Engineers has already implemented this interpretation and threats of enforcement action have been issued.

James Pray

BrownWinick Law Firm

 

 

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