Becker's Iowa Environmental Law Update : Iowa Environmental Lawyer & Attorney : Charles Becker : Belin McCormick P.C. Law Firm : IA Regulatory Compliance, Site Cleanups

Iowa, like so many other states having a large agricultural-based economy, has water quality problems.  With the amount of fertilizer used for crops and the quantity of manure created by animals, it isn't hard to understand why one top official at the Iowa Department of Natural Resources recently said that that there is a "fight between agriculture and water quality."

Despite this disadvantage, EPA has to regulate Iowa (and the other ag-based economies) just like all of the other states.  To that end, EPA just concluded its review of Iowa's designated use changes to its Water Quality Standards and has, not surprisingly, found them wanting.  Of the 127 use designations considered,  EPA disapproved the proposed water changes for 57 water bodies while approving 69 water bodies. 

In commenting on those sites that were disapproved, EPA explained:

EPA's review of many of Iowa's UAAs identified the following six recurring situations associated with the data submitted for the assessed water body segments: 1) instances where the depth data did not support removing the Class Al primary contact recreational use or depth data is discounted due to perceived "elevated flow"; 2) instances where a public comment indicated a Class Al primary contact recreational use is attainable, yet the state removed the Class Al use; 3) instances where there was no data to support a change in designated use; 4) instances where data collected outside the recreational season do not support removing the Class A 1 primary contact recreational use; 5) instances where the UAAs and/or supporting data contains significant errors making it difficult to review the recommendation; and 6) instances where a general use, rather than an aquatic life use, is recommended despite the presence of water. For these situations, the data and information provided in the submission were not adequate to provide the necessary scientific and technical rationale to support changing the designated use from Class Al to Class A2 or to remove an aquatic life use. Therefore, EPA must disapprove changing the designated use from Class Al to Class A2 for the waters listed in Tables EPA 3 -5.

The errors noted seem to be of the type that a little money could solve. Problem is, there's no money.  Every Iowa DNR Director has lamented this fact for years. And with a newly elected Republican governor, operating in a farm state, with few funds, it will be interesting to see what a new DNR Director can do in the new year.   

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Storm water runoff from agricultural property has long been a problem for water quality, primarily because there is virtually no regulation of that runoff. That might be changing.

In a new report issued by the Environmental Law and Policy Center and the Mississippi River Collaborative, there is a discussion of agricultural runoff and a review of the regulatory programs in California, Delaware, Iowa, Kentucky, Maryland, Oregon and Wisconsin. Among other things, the report emphasizes something that is frequently espoused by clean water advocates. That is:

Nonpoint source pollution is the greatest threat to water quality in the United States, yet neither states nor the federal government has taken adequate steps to diffuse that threat. Nonpoint source pollution is one of the most pervasive forms of water pollution and is not directly regulated the Clean Water Act. (Page 3).

According to the Report, since agricultural runoff is a large contributor to water pollution,

Current approaches to protect water quality will not succeed in controlling nitrogen and phosphorus pollution. The Clean Water Act explicitly exempts agricultural storm water runoff and irrigation return flows from regulatory requirements under the Act and its National Pollution Discharge Elimination System (NPDES) program. Discharges from Concentrated Animal Feeding Operations (CAFOs) are covered by the NPDES permit program, but under U.S. EPA CAFO rules, many CAFOs may not seek NPDES coverage because they do not “propose to discharge.” In practice, this means that manure from these facilities is supplied to land, where storm water runoff is exempt from regulation. Consequently, the largest contributors of nitrogen and phosphorus are scarcely regulated at the federal level and pollution problems continue to worsen. (Page 2).

The Report goes on to examine the limited regulation found in the seven reviewed states and then analyzes the various practices that could be used by the states to control nonpoint pollution. Those five practices are:

• Vegetative buffer requirements
• Land application setbacks
• Winter manure application prohibitions
• Livestock exclusion requirements
• Fall fertilizer restrictions

According to the Report, these are “basic, common-sense practices that should be followed by all agricultural operations.” So why aren’t they?

There are any number of possibilities, but the most obvious is that states that rely heavily on agriculture for their economies are not going to impose expensive restrictions on farming practices. This is certainly a valid consideration and, historically, there have been enough of those states to prevent a change on the federal level and with regard to the individual states, there are enough state legislators that are concerned about rural economies that it is difficult to make radical changes on the state level.  There are some indications that the sacredness of these cows may be changing.

The ELPC Report appears to be making a big splash and it comes at a fortuitous time -- the interest in the environment seems to be increasing and will likely continue for at least the next three years.

Also, in the Iowa Environmental Protection Commission’s Annual Report and Recommendations, issued on January 19, 2010, the EPC issued its recommendations for future legislative action saying:

New legislation to address non-point source pollution from agriculture and urban runoff is needed. Non-point sources of pollution are the major contributor to nutrient and bacterial impairment of Iowa’s water and these sources must be controlled to achieve Iowa’s clean water goals.

(It should be noted that the EPC’s admonition was ignored in that the Iowa legislature ended its 2010 session yesterday without passing any new environmental laws).

Finally, the Des Moines Register immediately reported on the ELPC Report and noted that Wayne Gieselman, Iowa Department of Natural Resource’s Administrator of Environmental Services, said that the requirement of no-crop zones along streams together with voluntary buffer-stripped programs, “could gain traction in Iowa if the federal government put up enough cash for rental payments to farmers.”

This is all to say that it may be that there is a new found willingness to consider what used to be off limits. But as with everything political, it will take time -- and, undoubtedly, money. 
 

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