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Beginning in the mid 1990s policy changes at the state level have put Iowa’s waterways second to the interests of large scale confinement feeding operations (LFO’s) which appeal more to the economic interests of the state. This change in policy was brought about by many players at the state level as well as out of state interest groups and actions by not for profit organizations. These players are using their power to overpower the balance between agro-business interests and environmental interests within the state. The highly agrarian sector in Iowa’s economy has made this issue a central struggle throughout history, and has been the rational for severe environmental dissolution. Most recently the combined pressure of these interest groups has created a situation in Iowa that is conducive to the development of LFO’s- and the waterways of Iowa are paying the price.

Terry Branstad was elected governor of the state in 1983 and served until 1999, serving the longest term of any governor in the state’s history. During his sixteen years in office Branstad was the driving force behind economic growth that helped to fund state-wide projects, especially in educational development. However, the swift economic developments credited to his administrations came at a high cost, specifically in the in the area of agricultural policy. Existing regulations on LFO’s in the state were amended, and funding to state agencies, like the DNR, that are responsible for enforcing regulations was cut.

Improving the fiscal position of the state was the central goal of the Branstad administration from its first campaign back in the early 80s. In the beginning of his term in office Branstad ruthlessly reorganized the state, reducing the number of departments and agencies, and cutting funding to standing ones. This along with other substantial structural changes allowed “the state to achieve a savings of approximately $40 million,” (Iowa) in the past governors’ first year. This economic success wavered some during Branstad’s sixteen years, but his policy regarding low levels of funding for administrative agencies did not.

Several policy changes that favored economic over environmental issues were implemented during the administration of Branstad. To attain the economic development he sought after Branstad used his influence over the state legislature and senate to pass several policies that allied with the values of his administration. The past governor recognized that in a state like Iowa, policies regulating the agrarian sector are immensely influential. Looking back, it is clear that Branstad favored economic interests of the state over the environmental issues. Branstad used the immense power attained by being governor for sixteen years to make funding changes of his own, but also to ensure the passage of several policy changes in the state legislature that would be equally as detrimental to Iowa’s waterways.

Beginning in the mid 1980’s and throughout the 1990s the State Legislature has taken the side of agribusiness economic interests by granting many freedoms to LFO’s. With a series of statutes the state legislature has effectively taken away the right of individuals to protect their own private waterways, and of the county to protect their public and private waterways. This leaves the state with almost unchallenged ability to regulate pollution in Iowa’s waterways. The goal of this change in regulation rights is very simple. The pro-agribusiness state and Terry Branstad were given the ability to weaken regulations of LFO’s. This caused economic boom in LFO’s that was welcomed by the state government.

The first action taken by the state legislature began in 1982 and was later amended in 1995. The law protects LFO’s from the nuisance lawsuits of individual property owners who’s waterways have been polluted. In 1982, the Iowa legislature passed the Right To Farm Law – Chapter 352.11 (Iowa Code), which allowed landowners to petition their County Board of Supervisors to establish agricultural areas of 300 or more acres. After a county establishes an agricultural area, livestock operations within that area are protected from nuisance actions. To win a nuisance case according to the law, a plaintiff would have to prove that the facility was operating negligently resulting in overt pollution. The law is a clear attempt to protect LFO’s from the burden and cost of nuisance lawsuits. Protecting LFO’s from being held accountable for polluting Iowa’s waterways encourages risky behavior, and outright pollution.

Later, in 1995, the Iowa legislature responded to increasing pressure from LFO pressure to further nuisance immunity. The state legislature passed House File 519 (CTF), which amended several agricultural related statutes from the original in 1982. The most controversial section, 657.11, states that an owner who has received all the necessary permits required to operate an animal feeding operation, functions under the presumption that their facility is not a nuisance. “A farm or farm operation located in an agricultural area shall not be found to be a nuisance” (Iowa Code) the law reads. This legislation further strengthens the immunity given to LFO’s in the early 1980s.

The second action taken by the state legislature was passed in 1998 and interacts with the Home Rule Amendment in the state constitution. The Home Rule Amendment specifies that counties have the right to regulate and rule themselves at the county level as long as the regulations do not specifically contradict or decrease state regulations. The way the state can acquire the right to regulate the county according to the amendment is to “impliedly preempt” (Cutler) the county from acting. Implied preemption is when the state passes a law governing a certain area to such an extent that the “State Legislature is presumed to have intended to regulate the area entirely” (Cutler).

In 1998 The State Legislature attempted to establish express preemption with statue 331.304A entitled “Limitations on county legislation” (Iowa Code). The law reads “A county shall not adopt or enforce county legislation regulation a condition or activity occurring on land [owned by LFO’s]” (Iowa Code). The county is banned from both creating laws that affect the business of LFO’s and also zoning LFO’s within the county. This leaves all the implementation of policies regulating LFO’s to the Iowa DNR. If a LFO’s attains a permit from the state it is able to conduct business anywhere within the county, and not have to answer to the county government in any way. It is important to note the importance of taking away the zoning rights of counties. If even this small right were given to the counties then LFO’s could be strategically zoned by the county in a low risk area to the state’s waterways, but currently the county is entirely powerless.

The Iowa Department of Natural Resources (DNR) has been given all of the power and responsibility to regulate LFO’s within the state. One of the most prominent jobs of DNR officials regulating LFO’s is to make sure that manure lagoons are not leaking. Manure lagoons are concrete tanks designed to hold excess manure from hog confinements. These lagoons hold millions of gallons of feces from tens of thousands of animals. A study written by Iowa State University hydrogeology professor William Simpkins and hydrologist Michael Burkart of the ISU-based National Soil Tilth Laboratory found that many lagoons in Iowa do leak.

The DNR inspects the lagoons once a year. But, “the state doesn't regularly check the level of groundwater around most of them” (Simpkins). Furthermore, in many areas "DNR oversight has been nonexistent," (Simpkins) because of weak laws and a tight budget. "I don't want to blame DNR for doing a poor job. If they had the staff and the stick to look at these things, we'd be a lot better off." (Simpkins) Particularly troubling, Simpkins said, are spots in north central Iowa where lagoons sit atop leaky soil and fractured rock, and in some cases near farm-field drainage wells that could send the manure straight into groundwater. Also, many older lagoons were built in areas where groundwater sometimes surrounded the structures. That means manure seeped through the lagoons, which happens with all clay-lined structures, and contaminated ground water. In other cases, water pressure weakened the lagoon walls. In still others, floods threatened lagoons.

The Iowa DNR has not been given the resources necessary to implement the existing regulations set in place by the Iowa DNR regarding lagoon seepage, and other polluting factors like manure application to fields. The agency has only twelve staff in charge of regulating factory farms throughout the entire state (DM Register). Furthermore, the DNR has not been given the necessary funding to do sufficient tests, and collect information necessary in LFO regulation. In a state where the number of hogs outnumbers people 5 to 1, much funding and manpower is necessary to successfully implement regulations. However, the state government has tied the hands of the DNR by limiting resources.

The Iowa State Supreme Court and other Iowa courts have stood by the implied preemption of the state (331.304A), but has declared nuisance immunity (352.11 and 657.11) statutes unconstitutional. It is the job of the State Supreme Court to interpret the constitutionality of new laws, and the fair application of instated laws. The judiciary branch is an immensely important player in the battle of LFO pollution in the state, serving as a check to the political agendas’ of both Terry Branstad and the State Legislature.

The right of the individual to sue for nuisance if a LFO pollutes his or her private waterway has been reinstated by the Iowa State Supreme Court. This is a victory for water quality in Iowa, and shows that awareness of the unethical actions of the State Legislature is becoming more widespread. First in 1998 The Iowa Supreme Court ruled that Iowa Code 352.11 is unconstitutional as it represents a taking of private property in the case Bormann v. Board of Supervisors of Kossuth County 584N.W.2d 309 (Iowa 1998). Later in 2004 the State Supreme Court ruled that Iowa Code 657.11 was also unconstitutional because it allows a taking of private property without just compensation in Gacke v. Pork Xtra, L.L.C. 684 N.W.2d 168 (Iowa 2004). Both Supreme Court actions help to re-empower the individual to protect private waterways within the state.

Judges and juries have since given mixed awards in nuisance lawsuits. Some major examples include in Blass v. Iowa Select Farms (Sac County, October 2002) eight plaintiffs awarded $106 million in compensatory damages, plus $32 million in punitive damages for defendants recklessly locating a 30,000 hog facility. This huge landmark case has shown the individual is not entirely defenseless. However, not all rulings have been in favor of the plaintiff. In Kleemeirs v. Pork and Innovation and Beazly Group (Calhoun County, January 2002) the plaintiff was awarded nothing for nuisance damages, inspite of a fifteen percent reduction for each of four property owners totaling $76,409. Public sentiment reflects that so far nuisance lawsuits have been carried out with ethical results. The overturning of nuisance immunity is only a limited success for water health within the state, as the power of nuisance immunity is greatly overshadowed by state power derived from implied preemption in 331.304

The same success has not been realized regarding the states implied preemption to the Home Rule Amendment (331.304A). Several cases have been brought forth to the Iowa Supreme Court that have challenged 331.304A. Worth County attempted to enacted county health ordinances in 2001 called the “Rural Health and Family Farm Protection Ordinance.” The ordinance required livestock operations to “install underground water monitoring well to monitor for contaminants according to Environmental Protection Agency standards” (Supreme Court of Iowa) as well as several other air quality measures. A month after the ordinance was passed the Worth County Farm Bureau filed a petition to take the county to court. The basis of the counties argument was that the health ordinances are clearly in contradiction to statute 331.304A, but that the statute itself is unconstitutional and should be overturned. The court agreed that “article III, section 39A [of 331.304 A] “was adopted to change the balance of power between state and county governments” (Supreme Court of Iowa) but upheld the statute and overturned the Worth County ordinances.

The Worth County Case is the most prominent example of an attempt to overturn 331.304A. However, the Supreme Court of Iowa upheld the statute maintaining the implied preemption of the state. So at this time, the only way the policy that governs LFO’s can be changed is if that change comes from the State Legislature. “Basically, the [LFO] industry, with the help of farm groups, have convinced the legislature that [LFO’s] are a good thing for the State of Iowa, and some favorable laws have been passed favoring [LFO’s]” (Cutler). For instance, the first couple of lines in 657.11 clearly show that the legislature felt that CFO’s were good for the state of Iowa.

Non-governmental organizations are an important player in the LFO battle in Iowa. These organizations take opposing sides on the issue, and help to do things like participated in legislative oversight, and fund studies that ally with their respective interests. Pro-agribusiness organizations like, The Worth County Friends of Agriculture, have helped to convince the State Legislature that LFO’s are good for the state, and have also, and brought unsatisfactory laws to trial, as was done by Worth County Friends of Agriculture vs. Worth county. The agrarian culture of Iowa is conducive to fewer environmental non-governmental organizations than agricultural ones. However, there are still pro-environment organizations within the state that have been important in the LFO battle. The Sierra Club is one of the most prevalent. This California based organization has paired with the Iowa Farmers Union, a family farmer advocacy group, to represent the destructive effects of LFO’s in Iowa.

However, the reader should not that there are very few non—governmental organizations that are going to have extensive information regarding the specifics of the LFO debate in Iowa. Often a non—governmental organization is created simply to bring a LFO to court, or to protest the building of a single LFO, then it is quickly dissolved after the issue is solved. These organizations rarely have websites or much public information available. Other topics of study that are more general tend to have better non-governmental organizations in support of their causes.

Iowa is largely defined by its proud and rich agricultural economy. Over the last twenty years the subject of LFO’s has become increasingly prevalent, corresponding to and increase in the number of confinement operations in Iowa. Many different players have influenced the change from family to factory farms in Iowa. Currently in the state, 3% of the hog farmers are making over 50% of the incomes of this multi-billion dollar industry (Sierra Club). Barriers have been set by the state to protect LFO’s from being held responsible for polluting the state’s waterways. As a result, University scientists have found that over one third of manure lagoons leak and other risky behaviors cause manure spills. Immense pollution from hog manure “impairs water quality, reduces fish populations, closes beaches and generally ruins the aesthetic beauty of Iowa’s waterways” (Sierra Club). Something must be done to protect the water quality of this state.