ENVIRONMENTAL ISSUES – LEGAL RAMIFICATIONS 2015 SWINE EDUCATION IN-SERVICE CONFERENCE Oct. 2, 2015 Eldon McAfee Brick Gentry, PC West Des Moines, IA

DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT “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

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 Expert witnesses: DMWW must designate by Nov. 2, 2015 & rebuttal by Feb. 3, 2016 DD’s must designate by Jan. 4, 2016 Court protective order for certain information exchanged between DMWW & DD’s Confidential Highly Confidential Attorneys’ Eyes Only

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

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 1992

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 Question of whether districts can be sued for compliance with Clean Water Act; money damages vs. injunctive relief

DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT Water Sampling by DMWW: March 18 until Dec. 30, 2014 Nitrates Nine different locations in the drainage districts 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

DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT Alleges discharges from field tile lines are discharges from “point sources” without an NPDES permit under the Clean Water Act Point sources are “discernable, confined and discrete conveyances” Alleges districts qualify as “point sources” due to extensive, unified, and engineered drainage systems

DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACT CWA point source exemptions: DMWW alleges not an ag storm water discharge that would be exempt under CWA because drainage is artificially drained groundwater, not ag storm water runoff DMWW alleges not “return flows from irrigated agriculture”

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”

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

AG NUISANCE CASES Steps to help to avoid lawsuit Overall operational environmental management, including neighbor awareness, communication and relations 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

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

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

AG NUISANCE CASES Protection for producer Nuisance defense laws All 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

AG NUISANCE CASES Protection for producer 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

AG NUISANCE CASES Iowa: No ag nuisance cases went to trial in Iowa in 2009 to 2014, one case went to trial in Feb. 2015 and now on appeal Cases currently pending and awaiting trial in Iowa, Illinois and Missouri courts, as well as other states