Iowa Environmental Council urges stronger protection of Iowa’s waters from livestock manure spills

Update (November 2, 2012):  The Iowa Environmental Council received feedback from the Iowa Department of Natural Resources that prompted the Council to exclude 26 spill incidents from its analysis of spills reaching water in Iowa over the last decade.  Statistics in this post have been updated to reflect that change.  The post was also updated to indicate the fact that the public comment period on this issue has now ended.

This post is the first in a series.  Monitor this site for updates.

On July 12, 2012, following a lawsuit by Iowa Citizens for Community Improvement, Sierra Club, and the Environmental Integrity Project, the U.S. Environmental Protection Agency (EPA) issued a report asking the Iowa Department of Natural Resources (DNR) to address several shortcomings with its enforcement of the Clean Water Act related to animal feeding operations. DNR has issued its initial response to EPA explaining how it plans to address those shortcomings. (Visit the EPA Region 7 website to download additional documents related to this case.)  The EPA requested comments from the public on DNR’s response, and the public comment period ended October 31.

The Iowa Environmental Council has reviewed EPA’s report and DNR’s response, and has identified several areas of concern regarding DNR’s treatment of large animal feeding operations.

Inadequate Permitting and inspections

Under Iowa law, livestock confinements are prohibited from discharging manure into waters of the state.  The state requires that these confinements be built according to design and construction standards meant to ensure that such a discharge will not occur.

In its response to EPA, DNR argues that this statutory prohibition on discharges and the mandatory design and construction standards are adequate to exempt confinement facilities from permitting and periodic inspection under the Clean Water Act.

However, whether a facility is designed not to discharge manure into water is different from whether, in practice, it actually does.  The DNR does not devote adequate resources to inspecting the operation of these facilities to determine whether they are operating as designed.

The Iowa Environmental Council has compiled data on manure spills in Iowa from several state-managed databases.  Analysis of this data indicates that between 2001 and 2011, 262 manure spills were documented to have reached a river, stream or lake. Of these 262 spills, 45% involved a confinement facility, and about 30%  took place at the confinement site itself.[1] These confinement spills occurred despite design and construction standards that supposedly prevent manure discharges.

In practice, DNR’s assumption that confinement facilities do not discharge pollutants to Iowa waterways is not correct.  DNR should establish a fair and responsible method to regularly inspect large confinement facilities to ensure that the way they are managed over time is adequate to protect Iowa’s waters from damaging manure spills.

Inadequate staff levels inside DNR

Over time, reductions in state funding for the DNR have significantly reduced the number of staff responsible for overseeing animal feeding operations.  The part of this group inside DNR that is responsible for inspecting livestock confinements has been particularly hard hit, according to DNR data:

Fiscal year	’07	’08	’09	’10	’11	’12	Change
Confinement inspection staff (FTE)	23	19	19	11.5	8.75	9	-14

It will be impossible for DNR to complete necessary inspections at confinement operations if the agency does not receive funding for additional staff.  In its response to EPA, DNR recognized this, and signaled its intent to seek funding for 13 additional staff members from the legislature.  Such a staff increase would roughly restore DNR animal feeding operations staff to 2007 levels.

In its response to EPA, DNR did not provide specific detail about how it will use the additional staff and what the additional staff will be able to accomplish.  The agency should provide this detail.  Without significant additional clarification from DNR, there is little reason to believe 13 additional staff members will allow the agency to adequately meet its responsibilities.

Weak enforcement

DNR has a longstanding policy to “coach for compliance” when interacting with livestock producers.  This practice, which devotes significant resources to maintaining a positive relationship between DNR and the regulated community, plays an important role in helping producers understand and comply with regulatory requirements.

Unfortunately, because the agency is operating with limited resources, DNR often inspects and enforces regulations concerning livestock facilities only after a self-reported spill or a citizen complaint takes place.  The agency then works with the livestock operation to address the cause of the incident.

Operating this way, DNR does not take a sufficiently proactive approach to monitor livestock facilities for potential problems and intercede before a spill takes place.  An adequate inspection and enforcement strategy would focus on “coaching for compliance” before a manure spill occurs, not after.

With an adequate inspection plan and additional resources, DNR policy should be to seek penalties for all pollutant discharges to water and for failure to address operational violations likely to result in such discharges.  This type of proactive enforcement, and the deterrent effect it creates, is the best way to prevent the high impact spills that currently comprise the bulk of DNR’s enforcement actions.

Insufficient penalties

In its initial report, EPA correctly found that often, DNR fines and penalties assessed are inadequate to serve as a proper deterrent for putting waterways at risk.  DNR should ensure fines and penalties are strong enough so that operators will not consider installing adequate safeguards to be a less attractive option than simply accepting DNR’s fine should an incident occur.

In fact, an Iowa Environmental Council Analysis of manure spills between 2001 and 2011 revealed that no fine or penalty was issued in 42 percent of documented spills where manure reached water.[2]

In addition to adding staff for inspections, DNR should consider adding legal staff who can manage violations that do occur.   DNR should refer violations to the State Attorney General’s office for prosecution if its own resources are inadequate to handle enforcement cases.

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[1] As opposed to when the manure was being transported or applied to the land, or a spill site was not available.

[2] In 153 of 262 documented spills for that time period (2001-2011).  Enforcement actions for some spills may still be pending, but these numbers reflect information available to the Iowa Environmental Council through October 5, 2012 and have been revised based on comments received from the DNR October 30 and 31, 2012.  In addition, DNR staff noted in some cases, enforcement is not possible because a responsible party could not be identified.  The Council reviewed its tabulation of spills and identified 30 cases of 262 in which no responsible party was named.