Issues: Water

IOWA

• The proximity of animal factories to Iowa's unique underground drainage system poses a serious threat to the state's water quality, including surface water and underground drinking water supplies.
  
  
• The Iowa state legislature has virtually barred local governments from regulating animal factories and their impact on the environment.
  
  
• Iowa state law has made it extremely difficult for a citizen to bring a successful suit against an animal factory for creating nuisances like odors, air pollution or health threats. However, in September 1998, the Iowa Supreme Court overturned the "flagrantly unconstitutional" nuisance immunity for designated agricultural areas. This Supreme Court ruling will almost certainly affect the nuisance suit provisions of Iowa's livestock laws.

Iowa is the number one pork producer in the country. Iowa's 14.5 million hogs and pigs constitute almost a quarter of the nation's total swine population. Eighteen percent of Iowa's farms, or 18,000 in all, raise hogs. The state ranks sixth in the country in the number of chickens raised and seventh in cattle.¹

Iowa has an estimated 1,200 animal factories classified as CAFOs, with 1,000 animal units or more. Of these, fifteen have federal Clean Water Act permits known as NPDES permits.² (See glossary.)

Iowa has a long tradition of family farm pork production and has historically led the nation in the number of hogs produced. Iowa farmers have demonstrated that there are many ways to raise hogs profitably and protect the environment. Thousands of Iowa farmers are doing both right now. Yet, the number of farmers raising hogs has dropped from 41,000 in 1988 to 18,000 in 1997 while the number of hogs has remained relatively constant.³

Unfortunately, this shift toward concentration of livestock is due, in part, to state policies that encourage the development of factory farms while protecting them from local regulation and citizen suits. Iowa still provides forgivable loans for factory farms under the theory that it spurs economic development. In addition, the state legislature has severely curtailed the power of local governments to regulate agriculture and protect the environment.⁴ Under Iowa state law, livestock operators were presumed not to be a nuisance, thus limiting the suits that neighbors could bring against operators for such nuisances as odors, air pollution or health problems.⁵ However, nuisance suit protection for designated agricultural areas was recently overturned by the Iowa Supreme Court as "flagrantly unconstitutional."⁶ (See further explanation under "Local Control" section of this chapter.)

With its favorable regulatory climate, excellent soil, good water resources and feed production, Iowa is an attractive location for pork production. One of the companies that Iowa has attracted is DeCoster "Family" farms. The company is one of Maine's major chicken producers and has been fined for violating feedlot regulations there. While in Maine, the owner, Jack DeCoster, was fined for OSHA violations and pollution problems.⁷ DeCoster brought his large-scale poultry business to Iowa and after five years started opening large hog confinements.

In Iowa, DeCoster has been fined for multiple environmental violations. Under Iowa's law prohibiting issuance of permits to confinement owners with pending enforcement actions,⁸ DeCoster has been barred from obtaining new permits. DeCoster may have tried to avoid this limitation by selling land to his son, Peter DeCoster, who is building more confinement facilities.⁹

Pollution Problems

Spills

In the past four years there were over 51 manure spills into Iowa streams, rivers and lakes serious enough for financial penalties. Overflowing manure storage lagoons were the source of the biggest spills, while application of liquid manure onto fields caused the most frequent spills.¹⁰

More than 1.1 million fish have been killed along with countless other aquatic species as a result of these manure spills.¹¹ The state's largest fish kill was in 1996. A man who was feeding pigs for an operator tried to lower the level of a overfilled lagoon by siphoning off some of the liquid into a gully (illegally). He forgot, left the pump running for four hours and dumped 100,000 gallons of lagoon water into North Buffalo Creek. The liquid killed an estimated 586,753 fish, flowed into a wildlife area and finally into a lake. The state fined the operator $3,000 for the spill and $30,000 for fish restitution for a total financial penalty of $33,000. This is the second largest financial penalty (including fish restitution) assessed in Iowa to date. The largest feedlot fine to date is $59,000 assessed against A.J. DeCoster for multiple manure management violations and spills.¹²

The largest volume spill in Iowa, however, was in 1995 when a malfunctioning lagoon at SNB Farms in Webster City spilled 1.5 million gallons of manure into the South Fork of the Iowa River. The manure broke into an underground drainage pipe and flowed one and a half miles before emptying into the river. The spill killed an estimated 8,861 fish, polluted thirty miles of river and closed a primary recreation area.¹³

Iowa's largest spill of 1998 came from the Williams Finishing confinement facility and dumped 420,000 gallons of hog manure into Hamilton County's Tipton Creek.¹⁴ The number of fish killed was not that high, because the creek had been hit hard by a similar spill two years earlier that nearly wiped out the fish population.¹⁵ Tipton Creek had not recovered from the last spill, leaving fewer fish to kill. And though the most recent spill was not a total fish kill, it wiped out tens of thousands of fish.¹⁶ The frequency of spills in Iowa raises the question of whether penalties are too small to act as an effective deterrent. This is particularly true in cases such as Tipton Creek, where frequent spills into the same water body result in reduced fish populations and therefore lower penalties assessed for fish restitution.

Air Quality

Odor, which is unregulated, is a serious problem in many communities. While other industries' toxic air emissions are controlled, agribusiness is exempt from air quality controls under the state's agricultural exemption.

Agricultural Drainage Wells (ADWs)

When Iowa was first settled, much of it consisted of waterlogged marshlands. Starting in the early 1900s, farmers drilled wells in the aquifer but instead of pumping water out, they injected excess water into the well so the land could be farmed. Some of these agricultural drainage wells (ADWs) are as deep as 400 feet within the limestone aquifer from which many Iowa residents obtain their drinking water. To increase the area drained, networks of clay pipes, known as "tiles," were buried a few feet beneath the land surface in surrounding fields to collect and channel water into ADWs.¹⁷ It is not unusual for manure lagoons to be situated above this network of clay pipes, some of which empty directly into rivers or streams. In the past four years, three spills have involved manure from earthen lagoons breaking into underground lines. Iowa's largest manure spill ever, from SNB Farms into the South Fork of the Iowa River, is one example.

Agricultural drainage wells, particularly those near feedlots, are a huge threat to Iowa's water quality. ADWs are direct routes for contaminants from the land's surface to enter the aquifer. Research has shown that ADWs increase contaminant concentrations, including pesticides, fertilizer, manure, bacteria, and sediment in the receiving aquifers.¹⁸ These wells drain an estimated minimum of 40,000 acres in north-central Iowa. The aquifers that receive this drainage are the same aquifers that provide water for drinking, agriculture, and business for thousands of people.¹⁹

By the mid 1990s CAFOs were expanding in Iowa and began building their multi-million gallon earthen manure storage lagoons. Many of the largest facilities were located close to ADWs in north-central Iowa.²⁰ The close proximity of large livestock confinement facilities to ADWs presented two main concerns: 1) impact to aquifers from surface drainage contaminated by runoff after land application of manure, and 2) risk of a catastrophic spill from a manure storage basin or lagoon entering an ADW.²¹

These risks are particularly evident in Wright County where there are 46 large-scale permitted livestock facilities and 38 active ADWs.²² In Lincoln Township, just southeast of the town of Clarion, there are 12 permitted hog confinements and 28 ADWs. Including the area surrounding Lincoln Township, there are 27 ADWs within one mile of a permitted hog confinement facility. The Mississipian aquifer into which these ADWs drain is the main water supply for public and private water supplies in Wright County and much of north-central Iowa.²³

In April 1997, land application of hog manure from a DeCoster farm confinement ran down a Wright County ADW and contaminated the area's water supply aquifer. The EPA fined DeCoster $10,000 under the federal Safe Drinking Water Act for contamination of the aquifer.²⁴

In 1997, Iowa passed new legislation to address potential pollution through the highest-risk ADWs.²⁵ Now, all ADWs that are within a drainage area that includes a permitted earthen manure storage structure must be closed by December 31, 1999. This includes about 20 ADWs in Wright County. New construction or expansion of an earthen manure storage structure within an area that is drained by an ADW is now prohibited.²⁶ However, some 270 ADWs still remain in operation in the state, notes Susan Heathcote of the Iowa Environmental Council. They are located in farm areas where there is a risk of contamination from spills of other types of manure storage, such as concrete pits, and from the application of manure on fields.

Regulatory Climate

In 1995 Iowa enacted a law that required some operations to prepare a manure management plan providing information about the timing and method of manure application, other factors related to application, and proof that there is sufficient land available for manure disposal.²⁷ Manure may not be applied within 200 feet of certain "designated areas" (defined as sinkholes, cisterns, abandoned wells, agricultural drainage wells, water wells, lakes and farm ponds), unless the manure is injected or incorporated into the soil within twenty-four hours after application, or if permanent vegetative cover exists around the designated area for at least fifty feet (and manure may not be applied on this fifty foot area) and there are certain restrictions on aerial spraying of manure. The law also created a complex system of setback distances for manure application and manure storage. While the state has recommended phosphorus application rates, operators may ignore those recommendations since the plans are required to be based on nitrogen rates only.²⁸ Nitrogen breaks down in the soil while phosphorus accumulates and thus requires less area for the safe application of manure. Manure management plans are kept on site unless the operator is a habitual violator, so they are not available to the public. They are only submitted to the Department when an operation applies for a contruction permit.²⁹

According to the Animal Agriculture Consulting Organization, a state advisory group, in their recommendations to the Iowa Department of Natural Resources ( DNR), "The DNR is required to inspect a habitual violator's facilities regularly. In the past DNR staffing levels were such that investigative inspections occurred only in response to complaints or field staff observations."³⁰ Iowa does not require a construction permit for swine operations that are small animal feeding operations (less than 200,000 pounds of hogs). Iowa does require confinement operations with more than 200,000 pounds of hogs (500 sows, 1,333 market hogs or 105 farrow-to-finish sows -- ten pigs per litter) to obtain construction permits if they use a lagoon or earthen manure storage structure.³¹ All swine confinement feeding operations with over 625,000 pounds of hogs must get a construction permit if they begin new construction.³² The requirements for a construction permit include a separation of four feet between the bottom of an earthen manure storage facility and the groundwater table. If the distance is less than two feet, a synthetic liner must be used. Construction permits may not be issued to facilities with enforcement actions pending before the Department of Natural Resources.³³

The Department of Natural Resources is responsible for enforcing the laws. From January 1992 to September 1997, there were sixty-seven enforcement actions related to manure spills, against pork producers that resulted in fines and fish restitution ranging from $100 to $59,000.³⁴ Violations of manure management requirements usually result in civil, rather than criminal penalties. In Iowa there is reluctance to file criminal charges against CAFO owners. The Department has inadequate staff to properly enforce the law,³⁵ although in recent years the number of inspectors has risen from eight or nine to nineteen full-time equivalent positions. Even under the 1998 bill, annual inspections are only required for operations with earthen manure storage structures.³⁶ For facilities using other types of storage, such as concrete pits or metal tanks, inspections are driven either by citizen complaints or by self-reporting.

Water Quality Monitoring

The state is doing a poor job of monitoring the extent of water pollution produced by animal factories. The state tests water quality in only a few locations and is not testing for every contaminant. "We could have a sharp decline in water quality and we would never know it because the state's water quality data is so sparse," former state legislator David Osterberg charged in the Cedar Rapids Gazette.³⁷

John Olson, a water quality specialist for the Department of Natural Resources, told the Gazette that the state's monitoring network is not useful in documenting the impact of confined animal feedlots on water quality. "We are spread too thin to capture that type of information," he said.³⁸

Local Control

Various Iowa laws make it difficult to assert local and individual control. A 1946 law prevents counties from zoning land or buildings used for agriculture. In a long string of cases interpreting the statute, courts have said that counties have no zoning authority over hog confinements regardless of their size or nature. In 1996 Humboldt County adopted four ordinances not designed to "zone" but to protect public health. These ordinances required operations with more than 300,000 pounds of animal weight to obtain county construction permits that included a public hearing process, financial assurance, and restrictions on manure applications. While the district court upheld the ordinances, the Supreme Court overturned them.³⁹ During the 1998 session, the legislature passed a bill that preempted counties from making any local decisions regarding animal feeding operations. The bill did allow counties to appeal DNR permit decisions, but only on matters of law and not due to community opposition.⁴⁰

Nuisance Suit Protection

Under a 1995 law, livestock producers received an almost absolute guarantee that no nuisance suit could be brought against them, even if an operation moved in next to someone living there first. The law said that there had to be clear and convincing evidence that the operation unreasonably and continuously interfered with a person's enjoyment of life or property and the nuisance was caused by the negligent operation of the facility.⁴¹ A 1998 law somewhat relaxed the nuisance suit protection, including changing the clear and convincing standard of proof to an easier standard -- a preponderance of evidence.⁴² Also, an exemption from nuisance suit protection for operations found in violation of state environmental laws (which was so strict that it was only applied to DeCoster, with multiple environmental violations) was expanded to include operators who did not use prudent, generally accepted management practices.⁴³

In a unanimous September 23, 1998 decision, the Iowa Supreme Court struck down a state law giving immunity from nuisance lawsuits (such as for odor from large-scale hog confinement lagoons) to farms operating in designated agricultural areas.

The Justices concluded that "the challenged statutory scheme amounts to a commandeering of valuable property rights without compensating the owners, and sacrificing those rights for the economic advantages of a few... (and) is plainly we think flagrantly unconstitutional.^"44 While the ruling dealt specifically with a 1982 law governing "agricultural areas," it will undoubtedly affect subsequent laws written to shield livestock confinement operations from neighbors' lawsuits.⁴⁵

Primary interviewees for this chapter:

Br. Dave Andrews
National Catholic Rural Life Conference
4625 Beaver Avenue
Des Moines, IA 50310-2199
Phone: 515-270-2634
Fax: 515-270-9447
e-mail: NCRLC@aol.com

Susan Heathcote
Iowa Environmental Council
7031 Douglas Avenue
Des Moines, IA 50322
Phone: 515-237-5321
Fax: 515-237-5376
e-mail: heathcote@earthweshare.org

Notes

1. U.S. Department of Agriculture and Iowa Farm Bureau, 1998 Iowa Agricultural Statistics (August 1998), pp. 77, 78, 106.

2. "Iowa Data," Fact Sheet citing AFO and CAFO information by the Natural Resources Conservation Service and Iowa Department of Natural Resources (Spring 1998), source unknown.

3. U.S. Department of Agriculture and Iowa Farm Bureau, 1998 Iowa Agricultural Statistics (August 1998), pp. 77, 78, 106.

4. In 1998, the state legislature reduced the burden of proof for plaintiffs suing feedlots but reiterated that local communities would be severely restricted in regulating animal factories; House File 2494. "In return (for making it a little easier for a neighbor to sue a livestock operator), counties are preempted from making any local decisions regarding animal feeding operations... Counties are... allowed to appeal DNR permit decisions, but only on matters of law and not because neighbors oppose the project." House Democratic Research staff, "Livestock Regulations, House File 2494," End of Session, 1998.

5. Iowa State University, University Extension, Swine Manure Management and Iowa's Manure Law (January 1997); House File 2494 maintained, but reduced the nuisance suit protection provisions; House Democratic Research staff, "Livestock Regulations, House File 2494," End of Session, 1998.

6. Borman v. Board of Supervisors, No. 192/96-2276 (Iowa , September 12, 1998).

7. Joann Alumbaugh, "Habitual Headache, Jack DeCoster and Others Keep Industry in the Spotlight, but Some Members of the Audiences are Booing," Wallace Farmer (November 1997); "OSHA Socks DeCoster," Iowa Globe-Gazette (July 13, 1996);

8. Iowa State University, University Extension, Swine Manure Management and Iowa's Manure Law, Livestock Industry Facilities & Environment, Pm-1700 (January 1997).

9. The new 1998 law specifically prohibits the transfer of land from family members if there is a pending enforcement action against the operator; House Democratic Research Staff, "Livestock Regulations, House File 2494," End of Session, 1998; Joann Alumbaugh, "Habitual Headache, Jack DeCoster and Others keep Industry in the Spotlight, but Some Members of the Audiences are Booing," Wallace Farmer (November 1997).

10. Department of Natural Resources Database, Iowa Department of Natural Resources, "Prohibited Discharges At Iowa Livestock Operations Resulting in Monetary Penalties and/or Restitution for Fish Kill Bening Proposed, Collected, or Pending -- 1992 To Present" (November 24, 1997).

11. Iowa Environmental Council, Iowa Environmental Journal (Spring 1998), p. 4.

12. Department of Natural Resources Database, Iowa Department of Natural Resources, "Prohibited Discharges At Iowa Livestock Operations Resulting in Monetary Penalties and/or Restitution for Fish Kill Being Proposed, Collected, or Pending -- 1992 To Present" (November 24, 1997); Mike Glover, "Judge Fines DeCoster $59,000," Times Republican (March 4, 1997).

13. Department of Natural Resources Database, Iowa Department of Natural Resources, "Prohibited Discharges At Iowa Livestock Operations Resulting in Monetary Penalties and/or Restitution for Fish Kill Being Proposed, Collected, or Pending -- 1992 To Present" (November 24, 1997).

14. "Pipeline of Poison," Des Moines Sunday Register, The Register's Editorials (July 26, 1998).

15. Lindsey Henry, "Spill's Toll is Limited by Earlier Fish Kill," Des Moines Register (July, 21 1998).

16. Lindsey Henry, "Sewage Spews into Creek," Des Moines Register (July, 20 1998).

17. Lynette Seigley, Deborah Quade and Susan Heathcote, "Agricultural Drainage Wells in Wright County," Geological Society of Iowa, Guidebook 65, Stop 6, Part 1 Geologic Setting, Figure 1 and Part II, Agricultural Drainage Well Policy (April 26, 1998).

18. Lynette Seigley, Deborah Quade and Susan Heathcote, "Agricultural Drainage Wells in Wright County," Geological Society of Iowa, Guidebook 65, Stop 6, Part 1 Geologic Setting, Figure 1 and Part II, Agricultural Drainage Well Policy (April 26, 1998).

19. Lynette Seigley, Deborah Quade and Susan Heathcote, "Agricultural Drainage Wells in Wright County," Geological Society of Iowa, Guidebook 65, Stop 6, Part 1 Geologic Setting, Figure 1 and Part II, Agricultural Drainage Well Policy, (April 26, 1998).

20. Lynette Seigley and Deborah Quade, "An Introduction to Hogs in Iowa," Geological Society of Iowa Guidebook 65, Figure 2 (April 26, 1998), p. 49; Frank L. Moore, Water Protection Fund Project Final Report, Floyd County Groundwater Protection Project, WPF-034-1, 1991-1996, Appendix D, Agriculture Drainage Well Inventory Map (1996).

21. Lynette Seigley, Deborah Quade and Susan Heathcote, "Agricultural Drainage Wells in Wright County," Geological Society of Iowa, Guidebook 65, Stop 6, Part 1 Geologic Setting, Figure 1 and Part II, Agricultural Drainage Well Policy (April 26, 1998).

22. Lynette Seigley, Deborah Quade and Susan Heathcote, "Agricultural Drainage Wells in Wright County," Geological Society of Iowa, Guidebook 65, Stop 6, Part 1 Geologic Setting, Figure 1 and Part II, Agricultural Drainage Well Policy (April 26, 1998).

23. Lynette Seigley, Deborah Quade and Susan Heathcote, "Agricultural Drainage Wells in Wright County," Geological Society of Iowa, Guidebook 65, Stop 6, Part 1 Geologic Setting, Figure 1 and Part II, Agricultural Drainage Well Policy (April 26, 1998).

24. "DeCoster Hit With $10,000 EPA Fine, Waterloo-Cedar Falls Courier (October 5, 1997).

25. 1997 Iowa Acts, Senate File 473.

26. Lynette Seigley, Deborah Quade and Susan Heathcote, "Agricultural Drainage Wells in Wright County," Geological Society of Iowa, Guidebook 65, Stop 6, Part 1 Geologic Setting, Figure 1 and Part II, Agricultural Drainage Well Policy (April 26, 1998).

27. Iowa State University, University Extension, Swine Manure Management and Iowa's Manure Law, Livestock Industry Facilities & Environment, Pm-1700 (January 1997).

28. Iowa State University, University Extension, Swine Manure Management and Iowa's Manure Law, Livestock Industry Facilities & Environment, Pm-1700 (January 1997).

29. Iowa State University, University Extension, Swine Manure Management and Iowa's Manure Law, Livestock Industry Facilities & Environment, Pm-1700 (January 1997).

30. Animal Agriculture Consulting Organization, Recommendations to Iowa Department of Natural Resources (February 28, 1997), p. 19.

31. Iowa State University, University Extension, Swine Manure Management and Iowa's Manure Law, Livestock Industry Facilities & Environment, Pm-1700 (January 1997).

32. Iowa State University, University Extension, Swine Manure Management and Iowa's Manure Law, Livestock Industry Facilities & Environment, Pm-1700 (January 1997).

33. Iowa State University, University Extension, Swine Manure Management and Iowa's Manure Law, Livestock Industry Facilities & Environment, Pm-1700 (January 1997).

34. Department of Natural Resources Database, Iowa Department of Natural Resources, "Prohibited Discharges At Iowa Livestock Operations Resulting in Monetary Penalties and/or Restitution for Fish Kill Being Proposed, Collected, or Pending -- 1992 To Present" (November 24, 1997).

35. Animal Agriculture Consulting Organization, Recommendations to Iowa Department of Natural Resources (February 28, 1997),

36. House Democratic Research Staff, "Livestock Regulations, House File 2494," End of Session (1998).

37. Orlan Love, "Water Quality Mostly a Mystery," The Gazette (March 6, 1998).

38. Orlan Love, "DNR Says Lack of Funding for Water Quality Among Chief Concerns,"The Gazette (March 6, 1998).

39. Frank Santiago,"County Hog-Lot Rules Voided," Des Moines Register (March 6, 1998); Borman v. Board of Supervisors, No. 192/96-2276 (Iowa, September 23, 1998).

40. House Democratic Research Staff, "Livestock Regulations, House File 2494," End of Session, 1998.

41. Iowa State University, University Extension, Swine Manure Management and Iowa's Manure Law, Livestock Industry Facilities & Environment, Pm-1700 (January 1997).

42. House Democratic Research Staff, "Livestock Regulations, House File 2494," End of Session (1998).

43. House Democratic Research Staff, "Livestock Regulations, House File 2494," End of Session (1998).

44. Borman v. Board of Supervisors, No. 192/96-2276 (Iowa, September 23, 1998).

45. Frank Santiago, "Hog Lots Lose Lawsuit Protection," The Des Moines Register (September 24, 1998), p. 1A.