Here Come the Water Works: A New Legal Strategy for Confronting Agricultural Pollution in Iowa

By Mary Ignatiadis, Intern in the Food Law and Policy Clinic (Winter 2015)

*I would like to thank Professor Jerry Anderson of Drake University Law School for sharing his knowledge and insight.

In Iowa, water pollution comes primarily from two places: cornfields and hog waste. The state is blanketed in 13.6 million acres of corn and is home to 20.9 million pigs. The vast majority of farms use conventional agricultural methods: they rely on chemical fertilizers and use machinery to do the plowing, weeding, and feeding on 85% of the state’s land. A primary ingredient in corn fertilizer and hog manure is nitrate, a nutrient necessary to all living things that moves its way up the food chain from the soil. However, the large amounts of nitrate used to support conventional, industrialized agriculture wash off fields and pig pens into waterways, where high concentrations of nitrate turn rivers and lakes into toxic environments. Much of this runoff occurs during the winter months, when cornfields are left barren and are unable to transform the nitrate into living matter. The Des Moines Water Works (DMWW) became the first entity to hold local governments legally accountable for this pollution when it issued an intent to sue letter on January 8th, 2015. It is a novel, even noble, step, but the suit alone cannot change the agricultural policies and politics at the heart of Iowa’s pollution problem.

The DMWW is suing three counties whose subsurface agricultural drainage systems have been identified as point sources of nitrate pollution in the Raccoon River. Nitrate concentrations have been increasing in Iowa waterways for decades, as corn prices boomed and farmers heaped nitrate-rich fertilizer on their crops to increase yield. The number of Concentrated Animal Feeding Operations (CAFOs), which can hold tens of thousands of hogs each, has grown in Iowa has well. The lagoons and containment facilities where this waste is stored are poorly regulated and often fail, spilling nitrate-rich waste into Iowa’s waterways. Consequently, DMWW had to use $900,000 of taxpayer dollars in 2013 to filter nitrates out of the Raccoon River to protect the city’s drinking water. The filtration system itself cost $4.1 million. Without the filtration system, nitrate concentrations in the City’s drinking water would sometimes be four times what the EPA has deemed to be safe. Toddlers and infants would be at high risk for developing methemoglobinemia, a potentially fatal condition known more commonly as “blue baby syndrome.”

Challenge #1: Role of Government Agencies and Political Influence
There are two main barriers to effective management of agricultural pollution in Iowa. First, the state’s goal of promoting intensive agriculture and the state’s goal of reducing nutrient pollution are currently pursued in such a way that the goals are seemingly incompatible. The Iowa Department of Agriculture and Land Stewardship and the Iowa Department of Natural Resources have no laws regulating nonpoint source pollution, which would give them a solid base from which to establish nutrient reduction programs to unite these goals. Currently, as the Iowa Department of Agriculture and Land Stewardship is not answerable to such a regulation, it has no reason to stop incentivizing high yield, high pollution agricultural practices.

This conflict of interest is echoed at the federal level between the USDA Natural Resource Conservation Service (NRCS) and the USDA Farm Service Agency (FSA); NRCS and FSA promote different, contradictory goals at the federal level, despite being part of the same agency. This has contributed to a vicious cycle of poor land management practices. Farmers are encouraged to increase their production in order to keep up with their neighbors. Overplanting by large, heavy machinery depletes and compacts the soil. Compacted soil does not hold water and thus loses its ability to store nutrients or stay in place. So what’s a farmer to do? Apply more chemicals to offset soil loss and nutrient depletion. Or just spray nitrate-rich manure from CAFO sewage lagoons straight onto fields. As soon as it rains, the nitrate-rich waste joins the eroded soil as it gushes towards the waterways and people downstream. Parts of Iowa are losing over 50 tons of soil per acre per year, added fecal material not included.

Second, officials in many areas of Iowa state government profit from intensive agriculture, either as owners, investors, or recipients of campaign contributions. When Governor Terry Branstad called the DMWW suit “an attack on rural Iowa,” he meant that the suit was an attack on the agricultural businesses that funded his campaign. Governor Brandstad’s largest campaign donor is the president of Iowa Commodities, Inc., a company that brokers large agricultural trade deals. Agricultural trade is big business in Iowa; Iowa corn and hog farmers grossed $9.9 billion dollars in 2013, and therefore wield considerable economic and political power within the state. This is partly demonstrated by the fact that fourteen out of the fifty members in the Iowa Senate are or have been farmers or owners of farm equipment companies.

Challenge #2: Interpretation of the Clean Water Act
The Clean Water Act (CWA) regulates only point sources of pollution, and specifically exempts agricultural stormwater. Yet the subsurface drainages in question (commonly called “tile drainages”) should not be confused with the superficial runoff the CWA intended to exempt as agricultural stormwater. Tile drainages collect water below agricultural fields and drain Iowa’s naturally marsh-like terrain. According to Iowa Code 468.1, county governments are responsible for the construction and upkeep of these drainage systems, as they flow continuously beneath different farms. The nutrient-laden water is concentrated through acres of pipes until it is dumped into the Raccoon River. The Raccoon River is currently a Class Five “impaired waterway” according to the Environmental Protection Agency, meaning that Iowa’s state government is responsible for alleviating the nutrient burden in the river. However, Iowa’s Nutrient Reduction Plan falls short of attaining this goal, as it relies on voluntary farmer participation and is costly. If the court in this case finds the tile drainages to be a point source of pollution, it would establish a precedent for targeting concentrated agricultural runoff from drainage systems.

Challenge #3: Focus of DMWW Suit
DMWW does not have the funds or the power to take on this industry directly. The CEO of DMWW, Bill Stowe, made this distinction when he told the press, “We are not seeking to change agriculture methods, but rather challenging government to better manage and control drainage infrastructure.” What Stowe does not mention is that trying to curb nitrate pollution with better drainage pipes is like trying to cure the flu with a Kleenex.

However, the suit may set a powerful precedent for holding local governments accountable for regulating others’ agricultural pollution. DMWW’s case will ultimately depend on how Iowa’s district court categorizes discharge from subsurface drainage systems.

Common Sense Solutions
The DMWW lawsuit might limit pollution from three of Iowa’s ninety-nine counties, but large and systematic changes in agricultural practices are needed to break this cycle of environmental devastation. These changes could be simple. Nitrogen-fixing cover crops (such as rye) could replace the barren mud flats that form outside of the corn-growing season; currently this practice is used on only 2% of Iowa’s fields. Scientists at Iowa State University and the Environmental Working Group found that converting 10% of land from production to prairie can decrease soil loss up to 95%, nutrient loss to 80-90%, and water pollution up to 44%. Effective conservation measures also include planting trees and grasses along field edges and reducing or omitting field tilling. Alternately, farmers could grow biofuels such as switchgrass, which do not require as much nitrate as corn and therefore would need less nitrate-rich fertilizer. Policies that would promote such practices include: nitrogen fertilizer taxation; developing an active role in the commodity market for nitrogen-fixing crops; and increasing oversight of manure storage and application.

Championing these age-old techniques are groups such as the Practical Farmers of Iowa, whose efforts to preserve the integrity of their land, and their profession, are chronicled in Farming for Us All: Practical Agriculture and the Cultivation of Sustainability. The book explores the sociological, economic, and political reasons that sensible agricultural methods that ensure long-term productivity are not widely employed in the Midwest today. One reason is the lopsided structure of financial incentives for Corn Belt farmers, who, between 1997 and 2009, received $51.2 billion in agricultural subsidies to increase production, while the government programs that help farmers to implement soil conservation practices provided only $7 billion. This disparity is not surprising, considering that agricultural companies spent well over $50 million lobbying Congress in 2013 alone. The 2014 Farm Bill improves upon this by offering $4 billion in funding for conservation over the next five years, but may in effect be decreased by appropriation committees in the House and Senate.

Finding the Power to Drive Policy
Litigation on the grounds of environmental pollution is aimed only at the symptoms, rather than the causes, of irresponsible agriculture. The conventional farmer of today believes in the power of technology to overcome the natural limits of their land’s productivity. This mentality fueled the farmers and government policies which created the Dust Bowl of the 1930’s. In fact, dust bowls have occurred in the Midwest at least once every decade since. Polluted water is just one of many environmental disasters brought on by conventional farming methods, and yet the culture among farmers of over-farming has not changed, nor have the government policies which support it. Public support for groups such as the Practical Farmers of Iowa will be more influential in reducing water pollution in the Corn Belt than litigation. State and federal officials must be incentivized by constituent support to codify smart farming policies.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.