Efforts by three environmental and activist groups threatening to sue the EPA on grounds that Iowa is not in compliance with the Clean Water Act are without merit, according to an Iowa attorney representing the Iowa Pork Producers Association (IPPA).
Des Moines legal counsel Eldon McAfee says the EPA should not move forward on a petition urging the revocation of the Iowa Department of Natural Resources’ (DNR) authority to regulate water quality in the state. The EPA was notified of the threat of legal action on Aug. 18 by the Environmental Integrity Project, the Iowa Citizens for Community Improvement and the Iowa Chapter of the Sierra Club.
“I believe that the Iowa DNR is correctly implementing and enforcing the Clean Water Act as required by both federal and state law,” says McAfee, with Beving, Swanson & Forrest, P.C.
Iowa law prohibits any discharge of livestock manure from a confinement operation, which is stricter than federal law. “And so, if you can’t discharge under Iowa law, why would the state require a discharge permit as the three groups suggest should be required?” he asks.
McAfee says that’s the central issue in this case.
“When this petition was first filed in 2007, Iowa law did not expressly provide a procedure for a confinement operation to get a National Pollutant Discharge Elimination System (NPDES) permit, which was a point the groups raised. What is required by federal law of course applies to Iowa, no matter what is in state law. To be safe, the Iowa Legislature made changes in the state law in 2008, again in 2010, to address any areas of the Iowa Code that could be interpreted as less strict than federal law.
“In 2010, the Iowa Code was changed to expressly provide for NPDES permits for confinement operations. But the law also states that any state rules can’t be stricter than federal law,” McAfee points out.
The petition also alleges and EPA supports the contention that Iowa’s Environmental Protection Commission — the rulemaking body that makes final decisions on NPDES permits if there is any conflict with the Iowa DNR — is biased because, by law, three of its members are comprised of livestock and grain farmers. “To us, there is no conflict of interest, provided that individual commissioners don’t review an NPDES permit that they have an interest in. But to be absolutely safe, the law was amended in 2010 to state that any appeal of NPDES permits will go to an administrative law judge and not to the Environmental Protection Commission,” McAfee clarifies.
Also, the environmental activist petition argues that inspections and enforcement of Iowa’s concentrated animal feeding operations (CAFOs) are lax. Again, McAfee reinforces that the state of Iowa meets federal requirements.
“It appears the petitioners just don’t feel that the penalties are high enough and that officials aren’t inspecting livestock operations often enough,” he explains. “I represent a lot of producers individually who would strongly disagree that enforcement is not adequate, after they’ve been penalized for a violation. I believe DNR’s actions in enforcement are adequate to protect water quality, and Iowa is in compliance with the Clean Water Act.”
In regard to petitioners’ claims of numerous manure spills in Iowa caused by livestock operations, McAfee notes that accidental spills occur, and accidents are what they are — unintended occurrences.
“But even if it’s an accident, penalties are generally imposed if the discharge affected water quality. But if the producer corrects what caused the accident, then under federal law producers are not required to have an NPDES permit due to the accidental discharge,” he says.
McAfee summarizes: “To argue that Iowa is not in line with the Clean Water Act for NPDES permits for confinement operations would be, in my opinion, just arguing that federal law is not strong enough. Iowa’s legal obligation under the Clean Water Act is to not be less strict than federal law. As long as Iowa is in step with the federal environmental regulations, then we are in compliance.”