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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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”

10. 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”

11. 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

12. 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

13. 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

14. 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

15. AG NUISANCE CASES Protection for producer
Nuisance defense laws
All states have some type of law
Most favorable court decisions to producer
Indiana
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

16. 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 1996

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