I recently participated in a discussion where the issue of whether farmers could be penalized if the water draining from their field tile exceeded nitrogen or phosphorus was raised. Here is the background:

1. Permit holders (those with point-sourse emissions) can be penalized if they exceed their permit conditions.
2. Any person who “causes” contamination of a navigable river or “waters of the state” (which can include groundwater) can be penalized.
3. Heretofore, those spills are generally considered to be “point sources.”

But what about a non-point source that emits pollution that exceeds applicable water standards? Are the states prohibited from prosecuting those sources due to the fact that the Clean Water Act has an agricultural stormwater exemption for those sources? Are the states pre-empted from expanding enforcement beyond the Clean Water Act?

Even if states are allowed to pursue non-point source contamination, here are the next issues that would have to be addressed:

1. Many tile lines drain more than one farm. Which farmer gets sanctioned?
2. Some parts of Iowa have high background levels of nitrogen due to buried glacially-deposited trees and other ancient landscapes.
3. If a farmer applies excess fertilizer in year 1, and the contamination is discovered in year 1 and year 2, are those separate acts or just one act?
4. If the farmer applies the correct amount of fertilizer, is an exceedance of nitrogen or phosphorus (or both) still sanctionable? In other words, is the farmer subject to strict liability?
5. Records for many farm tiles are missing or poorly documented. How can the IDNR know for sure which farm is being drained by the tile?

Just some thoughts.

— James Pray