Allegations from environmental groups in Iowa pressuring the Environmental Protection Agency (EPA) to take over powers of the Iowa Department of Natural Resources (DNR) to enforce the federal Clean Water Act (CWA), are simply without merit, says Des Moines legal counsel Eldon McAfee.

Back in 2007, environmental groups first petitioned EPA to take over enforcement of the Clean Water Act from the Iowa DNR for lack of enforcement activities against livestock producers for alleged violations of the Clean Water Act.

A year ago, these groups filed a notice of intent to sue EPA to revoke the Iowa DNR’s authority to regulate water quality in the state.

In July, the EPA issued a report following up on its investigations into allegations that positive environmental changes haven’t been made for concentrated animal feeding operations in the state (CAFOs).

EPA has invited public comments on DNR’s response to the EPA report. McAfee, representing the Iowa Pork Producers Association and other state agricultural groups, points out that the farm groups feel it is just as important to provide comments on EPA’s report.

“The associations are disappointed in the approach EPA has taken in its Initial Report in that EPA has failed to properly address petitioners’ allegations that misinterpreted and misrepresented Iowa law. The associations fully support environmental protection and support environmental regulation and enforcement when it is necessary to further the goal of environmental protection,” McAfee says.

But the Iowa attorney adds unjustified environmental regulation or enforcement can’t be supported. “The petition should be recognized for what it is – an attempt to pressure EPA and Iowa DNR into enforcing environmental laws as the petitioners (environmental groups) wish those laws were written, instead of how those laws are actually written.”

While McAfee agrees with EPA’s assessment that no response or action by the Iowa DNR is necessary, the associations he represents are disappointed that EPA failed to appropriately analyze many of the accusations brought by the petitioners and conclude that they were specifically without merit.

He points out that at EPA’s urging, the Iowa Legislature and the Iowa Environmental Protection Commission have taken action to make Iowa law consistent with EPA rules even though such action was not necessary to comply with the Clean Water Act.  And, he notes, Iowa’s effort to complete its rulemaking has been delayed because EPA’s rules on National Pollutant Discharge Elimination System (NPDES) permits for CAFOs have been struck down twice by federal courts because they were stricter than what is allowed under the CWA.

Moreover, EPA’s contention that compliance and enforcement of environmental issues have been resolved, including allegations that the Iowa DNR failed to investigate complaints and take enforcement actions, ignores the fact that the allegations did not have any basis, McAfee explains.

In its response, the Iowa DNR stated that a change in Iowa law requiring confinement operations to now comply with the CWA will require more DNR inspections of CAFOs, and DNR has requested more money to do those inspections.  First, McAfee disagrees with DNR’s implication that Iowa confinement operations did not previously have to comply with the CWA.  Because federal law supersedes state law, Iowa confinement operations have always had to comply with the CWA and any changes in Iowa law were to expressly reflect the supremacy of federal law.  Most importantly, there is no need to allocate additional resources to inspect confinement operations that under Iowa law can’t discharge into the waters of the state, especially given the state’s limited resources, he says.  

The Iowa DNR also stated in its response to the EPA investigation that its focus is to reduce the need for enforcement by working with producers to understand and comply with regulations to improve environmental protection.

McAfee says the ag associations support this effort and he amplifies: “The associations provide their own support to producers via individual association educational activities and through their support of the Coalition to Support Iowa’s Farmers, which provides detailed, hands-on regulatory compliance assistance to Iowa’s livestock producers. The associations urge EPA to recognize these activities in Iowa and to strive to improve its own cooperative efforts with producers to improve environmental protection.”