Transcript Environmental Issues - National Pork Board

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
 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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DES MOINES WATER WORKS LAWSUIT CLEAN WATER ACT
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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; pretrial 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
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DES MOINES WATER WORKS LAWSUIT CLEAN WATER ACT
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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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DES MOINES WATER WORKS LAWSUIT CLEAN WATER ACT
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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
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DES MOINES WATER WORKS LAWSUIT CLEAN WATER ACT
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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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DES MOINES WATER WORKS LAWSUIT CLEAN WATER ACT
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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
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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
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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”
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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”
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AG NUISANCE CASES
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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 CASES
Steps to help to avoid lawsuit
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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 CASES
Protection for producer
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Insurance
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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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AG NUISANCE CASES
Protection for producer
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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
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AG NUISANCE CASES
Protection for producer
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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
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AG NUISANCE CASES
Protection for producer
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Animal Feeding Operations Nuisance Defense, Iowa
Code section 657.11
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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 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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