ENVIRONMENTAL ISSUES – LEGAL RAMIFICATIONS 2015 SWINE EDUCATION IN-SERVICE CONFERENCE Oct. 2, 2015...

ENVIRONMENTAL ISSUES – ENVIRONMENTAL ISSUES – LEGAL RAMIFICATIONSLEGAL RAMIFICATIONS

2015 SWINE EDUCATION 2015 SWINE EDUCATION IN-SERVICE CONFERENCE IN-SERVICE CONFERENCE

Oct. 2, 2015 Oct. 2, 2015

Eldon McAfee Eldon McAfee Brick Gentry, PCBrick Gentry, PC

West Des Moines, IAWest Des Moines, IA

ENVIRONMENTAL ISSUES – ENVIRONMENTAL ISSUES – LEGAL RAMIFICATIONSLEGAL RAMIFICATIONS

2015 SWINE EDUCATION 2015 SWINE EDUCATION IN-SERVICE CONFERENCE IN-SERVICE CONFERENCE

Oct. 2, 2015 Oct. 2, 2015

Eldon McAfee Eldon McAfee Brick Gentry, PCBrick Gentry, PC

West Des Moines, IAWest Des Moines, IA

DES MOINES WATER WORKS LAWSUIT - DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACTCLEAN WATER ACTDES MOINES WATER WORKS LAWSUIT - DES MOINES WATER WORKS LAWSUIT - CLEAN WATER ACTCLEAN WATER ACT

LAWSUIT“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

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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

ConfidentialHighly Confidential Attorneys’ Eyes Only

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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

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DMWW:Independently owned & operated

public utilityAuthorized under Iowa Code, but

cannot levy taxesOwned and funded by customersBoard appointed by mayor of Des

MoinesInstalled nitrate removal facility 1992

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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

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Water Sampling by DMWW:March 18 until Dec. 30, 2014NitratesNine different locations in the drainage

districtsDMWW states that all samples have

been taken in public road right-of-waySome evidence that some sampling has

been on farmland within drainage districts

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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

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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”

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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”

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AG NUISANCE CASESAG NUISANCE CASESAG NUISANCE CASESAG 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

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AG NUISANCE CASESAG NUISANCE CASESSteps to help to avoid lawsuit Steps to help to avoid lawsuit

AG NUISANCE CASESAG NUISANCE CASESSteps to help to avoid lawsuit 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

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AG NUISANCE CASESAG NUISANCE CASESProtection for producerProtection 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

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Insurance Environmental policies available

Coverage provided for odor nuisance claims Coverage for legal and other costs of defenseInsurance 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

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Nuisance defense laws All states have some type of law Most favorable court decisions to producer

Indiana - 2014Missouri 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

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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

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AG NUISANCE CASESAG NUISANCE CASESAG NUISANCE CASESAG 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

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ENVIRONMENTAL ISSUES – LEGAL RAMIFICATIONS 2015 SWINE EDUCATION IN-SERVICE CONFERENCE Oct. 2, 2015...

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