Thursday, November 26, 2015

Giving Thanks

Giving Thanks, Horace Pippin (1942)

“Enough is as good as a feast.”— Sir Thomas Malory (d. 1471) 
“When you drink water, remember the mountain spring.”— of Chinese provenance
“When eating fruit, remember the one who planted the tree.”— of Vietnamese provenance

 “Gratitude” in the Stanford Encyclopedia of Philosophy.

Saturday, November 07, 2015

UCLA Resnick Program Issues New Report on Food Equity and Law Schools

The Resnick Program for Food Law & Policy at UCLA School of Law recently released an excellent report, Food Equity, Social Justice, and the Role of Law Schools:  A Call to Action, researched and written by Kim Kessler and Emily Chen. The Report was written as part of the University of California’s Global Food Initiative. This system-wide initiative "challenges campuses to develop solutions for one of the most pressing issues of our time: the 'quest to establish global food security and address related challenges of nutrition and sustainability.'"  Michael T. Roberts serves as the Director of the Resnick Program.

The report articulates the need for law schools to "more visibly and holistically address this pressing societal challenge," and it considers how law schools across the nation are currently addressing the "social, economic, and environmental injustice in our current food system." It highlights the ongoing work within the California system.  It then provides a compelling impetus for law schools to do more to confront the inequities within our food system and to integrate more food policy and food justice into the law school curriculum. We applaud the Resnick Center for putting out this "call to action."

Several law schools receive special recognition in the Report with a case study describing the school's work in this area. I was proud to have our work at the University of Arkansas as the first school acknowledged. The Report notes that "[i]n the field of food law and policy, the University of Arkansas School of Law has been foundational. For decades, the law school has been at the cutting edge of food and agricultural law and scholarship." Both the Indigenous Food and Agriculture Initiative and the Food Recovery Project were referenced as examples of our outreach and national recognition. Our overall integrated and interdisciplinary approach is recognized, as we attempt to merge issues of sustainability, food security, food system resilience, and social justice throughout our curriculum.

Four of our classes "from [our] extensive curriculum" are highlighted as excellent examples of work in promoting food equity:
  • Food Justice: Law & Policy (course created and taught by Nicole Civita);  
  • The Right to Food (course created and taught by Uche Ewelukwa); 
  • Business, Human Rights and Corporate Social Responsibility in the Food/Ag Sector (course created and taught by Uche Ewelukwa); and 
  • Legal Issues in Indigenous Food & Agriculture (course created and taught by Janie Hipp and Erin Shirl).
We are in excellent company. Beyond the opportunities presented within the University of California system, several other schools that received case study recognition:
  • The Turner Environmental Law Clinic at Emory University School of Law "has made food law and policy one of its central focuses, with projects at all levels of government;"
  • Harvard Law School is recognized as home to the "first Food Law and Policy Clinic in the Nation;"
  • The University of Michigan Law School’s Community and Economic Development Clinic, has been "working to create the legal backbone of the 'good food economy'" in Detroit; 
  • New York University School of Law's International Human Rights Clinic of the Center for Human Right and Global Justice has undertaken "numerous research and advocacy projects that focused on food and agricultural policies and on the right to food;" and,
  • An independent food justice project conducted through a Local Government class at Stanford Law School resulted in a new law in the state of California, Assembly Bill 551—the Urban Agriculture Incentive Zones Act.
The Report concludes that a lack of awareness of food equity issues and research constraints are two of the main challenges deterring law schools from additional work in this area.  It then presents a series of thoughtful recommendations going forward.
Foundational to any recommendations for mobilizing law schools to address food equity issues is the importance of developing a shared understanding of: (1) the effects of our current food system on the health and economic mobility of disadvantaged communities throughout the food chain— from production to distribution (farm to fork), and (2) the resulting social and legal issues lawyers and law schools are in a unique position to address, and which can provide essential skills training for law students. 
The report encourages schools to frame engagement in food equity issues as both an opportunity for students to engage in experiential learning and to recognize their law degree “as an empowering degree—how to use law in a rule of law society”. [citation omitted] It suggests that schools leverage existing classes, clinics, and experiential programs to capture the potential overlap with food equity and to innovate in the formation of partnerships. Practical suggestions, with best practices and implementation strategies are provided.

I hope that the Resnick Program's Call to Action will be heard far and wide. There is rewarding and challenging work to be done in this critical area.

Monday, September 21, 2015

César Chávez & the United Farm Workers: A Basic Bibliography

My bibliography for César Chávez & the United Farm Workers is here
“Humor and kinship among veterans led members of the Rebel Chicano Air Front to adopt the ironic name of the Royal Chicano Air Force after their acronym—RCAF—was misidentified with the Canadian military. Operating out of their Sacramento, California headquarters (the Centro de Artistas Chicanos), they organized community programs, designed murals, and printed posters in support of the United Farm Workers Union. This collaborative spirit shines in Hasta La Victoria Siempre, c/s, a print by Luis (or Louie ‘the Foot’ González), based on his brother Héctor’s photograph of a United Farm Workers pro-labor rally. Interested in concrete poetry, Luis González wove the typed words long live, strike, and tomorrow into a fluid pattern.”

On Golden Rice

Around the world, between a quarter and half a million children go blind each year as a result of a deficiency in vitamin A and within twelve months, half of them die. Golden Rice was created to tackle this problem, by genetically engineering Vitamin A into the rice grain. It is golden because its vitamin A comes from beta carotene, which also puts the orange in carrots. One of the areas of the world where Golden Rice is designed to be consumed is Asia, where a high proportion of calories are derived from rice consumption, and where vitamin A deficiency is endemic. [….] The technology presents itself as a feel-good solution for politicians who’d rather not face the more profound, persistent and difficult questions of politics and distribution. There’s more than enough vitamin A to go around. Half a carrot contains the recommended dose of vitamin A. The plain fact is that the majority of children in the Global South suffer and die not because there is insufficient food, or because beta-carotene rice is nationally lacking. They are malnourished and undernourished because all their parents can afford to feed them is rice.

The best that crops such as Golden Rice can do is to provide supplement in diets where nutrients are unavailable. And when a balanced diet is unavailable, the cause has more to do with poverty than with anything that can be engineered into the crop. It is absurd to ask a crop to solve the problems of income and food distribution, of course. But since this is precisely the root cause of vitamin A deficiency, the danger of crops such as Golden Rice is not merely that they are ineffective publicity stunts. They actively prevent serious discussions of ways to tackle systemic poverty.—Raj Patel, in Stuffed and Starved: The Hidden Battle for the World Food System (Brooklyn, NY: Melville House Publishing, 2008): 136-37. 
“Few GM crops are discussed as much — and misunderstood as much — as ‘Golden Rice.’”
By Glenn Davis Stone (Professor of Anthropology and Environmental Studies at Washington University in St. Louis)
August 28, 2015

Golden Rice is modified to produce beta carotene in the endosperm, rather than only in the bran as in most rice. Beta carotene is a vitamin A precursor, and the hope was that this invention would mitigate Vitamin A Deficiency (VAD), which in extreme cases can cause blindness or death in malnourished children. After appearing on the cover as Time in 2000 as a rice that ‘could save a million kids a year,’ Golden Rice has been a nearly ubiquitous talking point in GMO arguments. As a high-flying GM superfood, it is without peer.

But the battles over Golden Rice have been particularly heated even by the usual standards of GMO bombast. Critics see it as an unproven, expensive, and misguided band aid—a Trojan Horse to open the floodgates of GM crops into the global south (Brooks 2010:76-83; RAFI 2000). Industry spokesmen, impassioned molecular biologists, and partisan journalists charge that children are being left blind by GMO critics having slowed the rice; hired activist Patrick Moore tirelessly (and cartoonishly) blames Greenpeace — which he claims to have founded — for ‘murdering’ children ( 2015).

Confusingly, other biotechnologists claim that Golden Rice is already in use and that it has ‘helped save many, many lives and improved the quality of life of those who eat it’ (Krock 2009; also see Thomson 2002:1). These claims cause considerable discomfort to the scientists who are actually doing the Golden Rice breeding (Dubock 2014:73).

All the shouting tends to cover up a crucial issue with Golden Rice: who is it for, exactly?  Proponents usually discuss it as a vitamin tablet headed for generic underfed children in ‘poor countries’ (Beachy 2003), or ‘developing countries’ (Enserink 2008), or occasionally ‘Asia’ (Dawe and Unnevehr 2007).

But here’s the problem.  Golden Rice is not just a vitamin tablet headed for malnourished kids wherever they may be.  It’s not a tablet at all; it’s rice, the most widely consumed and arguably the most culturally freighted crop in the world (e.g., Ohnuki-Tierney 1993). And it is headed specifically for the Philippines.  Golden Rice got its start in the Philippines (Enserink 2008), and it’s being bred and tested in a research institution in the Philippines, to be approved by the Philippine Bureau of Plant Industry, to be sold in Philippine markets to Philippine growers and potentially fed to Filipino children.   (Breeders and researchers in Vietnam, India, and Bangladesh are also working with Golden Rice, but release is not on the horizon in any of these countries.)  Most discussions of Golden Rice ignore this Philippine context. Even economic analyses purporting to calculate ‘The Cost of Delaying Approval of Golden Rice’ (Wesseler, et al. 2014) make no mention of the Philippines. [….]

The remainder of Professor Stone’s blog post (including the sources cited) is here.

See too these blog posts by Marion Nestle: “Proponents of food biotechnology are still talking about Golden Rice? Sigh,” and “Retraction of the Golden Rice paper: an issue of ethics.” 

I have some titles germane to the discussion in two compilations: The Sullied Science & Political Economy of Hyper-Industrial Agriculture (Or: Toward Agroecology & Food Justice)—A Basic Bibliography, and The Ethics, Economics, and Politics of Global Distributive Justice: A Select Bibliography.

Saturday, September 19, 2015

Request for Article Submissions

The Journal of Food Law & Policy at the University of Arkansas School of Law is seeking submissions.

There may be space for one more article in the Fall publication, offering a quick turn around on publication. That issue will be going to the publisher in December.

Articles for the Spring publication can be submitted anytime this semester.

Over the years, the Journal student editors and staff have been proud to publish works by some of the most recognized leaders in the food law community.  Last Spring, they celebrated their tenth anniversary with a live-streamed symposium featuring Neil Hamilton, Peter Barton Hutt, Michael Roberts, and myself.

Submission can be made by direct delivery via e-mail to  Please include a brief abstract and CV or resume with each submission.  

Friday, August 14, 2015

Animal Drugs in Livestock Production: Raised without Ractopamine Labeling

NPR A Muscle Drug for Pigs Comes Out of the Shadows
This summer, an article that I wrote was published in the Duke Environmental Law Forum. Beyond the Food We Eat: Animal Drugs in Livestock Production, 25 Duke Envtl L. Forum 227 (2015).

In the article, I describe the pervasive use of pharmaceuticals in the livestock industry and raise concerns about the environmental hazards associated with more than a billion tons of animal waste containing antibiotics, hormones, and beta agonists.  I complain about lax regulation and an FDA animal drug approval process that relies almost exclusively on drug manufacturer testing.  Some of my suggestions to address these problems call for more transparency and more consumer awareness. One suggestion specifically calls for the use of labeling that identifies animals raised without specific drugs.

I am pleased to report that NPR just did a story on what appears to be the first approval of a "Produced without the use of ractopamine" label for pork.  Dan Charles, A Muscle Drug For Pigs Comes Out Of The Shadows, NPR Morning Edition, republished on The Salt, an NPR Blog (Aug. 14, 2015).

Unlike products regulated by FDA, meat labels have to be pre-approved by USDA.  As the NPR story points out, the USDA's Food Safety & Inspection Service (FSIS) initially rejected the label, but recently approved it.  Interesting story -  here it is:

Monday, July 20, 2015

John Oliver: Food Waste on Last Week Tonight

Pleased to see John Oliver take on the issue of food waste.

Friday, May 22, 2015

Walmart Announces Policies on Animal Welfare and Antibiotic Use in Livestock Production

On May 22, Walmart announced its new policy on animal welfare and antibiotic use, Walmart U.S. Announces New Animal Welfare and Antibiotics Positions:  Company Outlines Expectations for Suppliers to Walmart U.S. and Sam’s Club U.S., as Part of Commitment to Sustainable Supply Chain.

As the world's largest food retailer, Walmart often sets the standards for the supply chain. This has been cast in terms of lowering the bar for production standards as a means of lowering costs. Sometimes, however, as in this case, Walmart can also decide to raise the bar.

The announcement includes Walmart's support for the "globally recognized 'Five Freedoms' of animal welfare." For example, included in the announcement is a call to suppliers to "[f]ind and implement solutions to address animal welfare concerns in housing systems. . . "

The announcement also takes on the pervasive use of antimicrobials in livestock and poultry production. It supports the elimination of the "growth promotion uses of medically important antibiotics" and calls for "limiting antimicrobial treatment to animals that are ill or at risk."

Admittedly, "at risk" can be interpreted to allow for much of the current use of antimicrobials in the livestock and poultry industries, as low levels of antibiotics are used to "prevent" disease in crowded conditions.  It is a first step, however.

And, the announcement also calls for public reporting on "antibiotic use on an annual basis."  This would seem to indicate support for the FDA's recent proposal to gather data on antibiotic use on a species basis.  Current reporting is only available to FDA by overall industry sales, and it is generic in terms of use. Greater transparency could have a significant impact on the market.

In sharp contrast to the "ag gag" laws in some states, the notice uses the term "transparency" seven times in the one page announcement.

This is the latest word from Walmart on its Commitment to a Sustainable Food System. Last October, Walmart announced this commitment, noting that food is its "biggest product category." It announced its four pillars of commitment:

1) Affordable: Continuing to reduce the “true cost” of food.

2) Accessible: Fighting hunger by providing for those in need.

3) Healthier: Making eating healthy easier.

4) Safe and Transparent: Showing consumers where food comes from.

It will be interesting to see how seriously Walmart takes these commitments, how much pressure they put on their livestock and poultry suppliers, and what timeframe they have in mind.  Currently, many suppliers are a long way from these goals.  But, they should be on notice.

Wednesday, May 20, 2015

If you're going to eat cattle...

The (edited) article below from today’s Los Angeles Times (May 20, 2015) is by Jared Stone, a television producer and author of Year of the Cow: How 420 Pounds of Beef Built a Better Life for One American Family (Flatiron Books, 2015). Although I am not an omnivore, presumably the vast majority of readers are omnivorous, in which case this should be of some interest.

If you’re going to eat cattle, let them eat grass.

“Stories about impending environmental apocalypse circulate almost daily, especially in drought-ravaged California. Many of these stories tend to blame agriculture — and specifically, beef — for gobbling up our resources. Though numbers vary widely and are hotly contested, some researchers estimate that it takes 1,800 gallons of water to produce each pound of beef. The real problem, however, isn’t cattle. It’s industrial feedlots, where more than 70% of U.S. cattle eventually live. 

In an industrial feedlot, potentially thousands of animals are packed together in an enclosure of bare, unproductive dirt. Nothing grows there. Operators have to bring in water for the cattle to drink, and for the enormous manure ponds that contain the cattle’s waste. But the majority of the water used in raising industrial cattle goes into growing their feed. These operations are tremendously resource-intensive.

If you eat beef, grass-fed cattle are a better option. Those cattle are a healthy part of a larger ecosystem. Raised where grass grows, these cattle don’t need manure ponds. While they do need a source of drinking water, a rain-fed pond suffices in most cases. In turn, the animals’ grazing improves the health of the grassland, often dramatically, and increases the ecosystem's water retention. These cattle, moreover, can graze on marginal land that doesn’t have any other agricultural worth. [….]

[R]ecent research suggests that properly managed grass-fed cattle can help capture and store carbon in grassland soil. In addition to making the soil more nutrient-rich and better able to hold water, one study found this process happening at a rate that could actually help offset the rise in atmospheric carbon dioxide. It also showed that properly managed cattle pastures had levels of soil organic matter comparable with those of native forests.

Of course, if there isn’t enough rain for very much grass, there isn’t enough rain for very many grass-fed cattle. That’s where we are now in California. [….]

According to the U. S. Department of Agriculture, Americans waste an estimated 30% of the food we produce. Reducing that percentage would greatly increase the efficient use of natural resources, including water. Faced with the harsh long-term realities of climate change and the immediacy of the California drought, the choice is clear: If we’re going to eat cattle, let them eat grass.

For the entire article, see here. The images were serendipitously located here.

In the same vein, but with a different farm animal, please see Barry Estabrook’s Pig Tales: An Omnivore’s Quest for Sustainable Meat (W.W. Norton & Co., 2015).

Friday, May 15, 2015

Right to Food, Right to Farm

Last summer, Missouri voters narrowly approved a right to farm amendment to the Missouri Constitution. It appears that the supporters' expectation is that the amendment will ban the state from putting any environmental, animal welfare, health, etc. (read: costly) restrictions on their farming practices. While the actual effect of the amendment is still unclear, supporters spent over $1 million dollars toward the passage of the right to farm. Having freedom to farm is all well and good, but what good is a right to farm without the demand for farm products?

The upturn in U.S. agriculture correlates not with any recognition of a right to farm, but rather with an international recognition of the right to food. The combination of World War I and the great depression saw a large downturn in U.S. agriculture and the subsequent creation of federal farm subsidies. On the one hand, the federal farm subsidies helped U.S. farmers continue to farm. On the other hand, these farmers were running out of buyers for their crops.

Recognizing farmers' needs for a market for their surplus crops, President Franklin D. Roosevelt included exports of surplus goods as part of his rationale for requesting funds for the war effort. In fact, on January 6, 1941, during the height of World War II, Roosevelt presented his "Four Freedoms" speech during his annual address to Congress. The Four Freedoms speech is most often remembered for Roosevelt's declaration of the four freedoms essential to a secure world - the freedom of speech and expression, the freedom of worship, the freedom from fear, and the freedom from want.

In short time, Roosevelt's altruistic-sounding freedom from want took a more formal turn toward trade. In the Atlantic Charter, the U.S. and the United Kingdom jointly declared "certain common principles in the national policies of their respective countries on why they base their hopes for a better future for the world." Those principles included freedom from want...and commitment to trade. Less than one month later, the U.S. Secretary of Agriculture called from increased agricultural production to meet international food needs. The agricultural up-tick that coincided with Roosevelt's declaration of freedom from want was just beginning.

In 1942, several countries signed onto the Declaration on the United Nations: a document substantively similar to The Atlantic Charter. In 1945, 50 countries came together to draft the United Nations Charter and to commit to, among other things, promoting fundamental freedoms. That same year, what is now known as the Food and Agriculture Organization of the United Nations (FAO) was created. And, in 1948, the Universal Declaration of Human Rights officially recognized Roosevelt's freedom from want as including a right to food.

And what was happening in U.S. agriculture? According to USDA data, the period between 1945 and 1948 started the most distinctive increase in U.S. agricultural production. U.S. agricultural exports grew dramatically beginning during that period. While the overall number of farms started to decline, the overall number of acres per farm began a steady increase, as did the overall production of U.S. farms. In other words, international recognition of a freedom from want that included a right to food coincided with the notable rise in U.S. agriculture, a rise that continues even today.

So why then was so much money spent by supporters of the Missouri Right to Farm amendment? By analogy, that is like criminal defense attorneys in the 1960s spending money to advocate for a "right to be a criminal defense attorney" rather than advocating for the, ultimately successful, "right to counsel" in criminal cases. It is completely counter-intuitive. Maybe then farm supporters should learn a lesson from history and start lobbying their states for a right to food amendment.


Anna Dey is a candidate in the LL.M. Program in Agricultural and Food Law at the University of Arkansas. She received her J.D. from the Seattle University School of Law and B.A. from Cornell University. Anna is originally from rural Iowa, where she is also admitted to practice law. She will be returning to Iowa later this summer.

Thursday, May 14, 2015

The Sullied Science & Political Economy of Hyper-Industrial Agriculture (Or: ‘Toward Agroecology & Food Justice’) — A Basic Bibliography

The title of this compilation is a mouthful, but its content can be chewed with leisure and is easily digestible. I hope it also proves both nutritious and a gustatory delight.

The Sullied Science & Political Economy of Hyper-Industrial Agriculture (Or: ‘Toward Agroecology & Food Justice’) — A Basic Bibliography

Thursday, March 05, 2015

Sixteen Things to Know About the Des Moines Water Works Proposed Lawsuit

Record high nitrate levels have been found in Des Moines' water -  6 times higher than federal limits. In early February, Des Moines Water Works indicated its intention to sue several Iowa drainage districts for failing to properly regulate the pollutants that flow into its water source.

The water quality problem faced in Des Moines and the proposed lawsuit raise many challenging issues. 

The following remarks were presented by Professor Neil Hamilton at the 2015 Iowa Water Conference, March 3, 2015, in Ames, Iowa.  Professor Hamilton is the Dwight D. Opperman Chair of Law and serves as the Director of Agricultural Law Center at Drake University Law School. Appreciation is extended to Professor Hamilton for sharing his remarks with Agricultural Law. 

Sixteen Things to Know About the DMWW Proposed Drainage District Lawsuit

First lets talk about the key legal issues in the dispute. As a starting point the potential lawsuit by the Des Moines Water Works against drainage districts in Sac, Calhoun and Buena Vista Counties raises important legal issues concerning the interpretation and application of the Clean Water Act (CWA) and of the authority and legal status of Iowa’s drainage districts. Many are issues of first impression – meaning the federal courts have not considered them previously. While some may believe the idea of a lawsuit is unhelpful – the claims are not frivolous or without merit, instead they raise important questions for the courts and society to address.

1. The proposed lawsuit is a citizen suit under the Clean Water Act claiming the drainage districts are point sources which need NPDES permits from the EPA –  The Clean Water Act (CWA) is the major federal law designed to protect water and prevent pollution. It authorizes EPA – and the states which administer the law, in Iowa the DNR, to issue NPDES permits (National Pollution Discharge Elimination System) to point sources – such as pipes and ditches – to allow them within in limits and after treatment to discharge pollution into the waters of the U.S.

The CWA – and most other environmental laws – include provisions allowing interested citizens to bring lawsuits to enforce the law after notifying the authorities of their intention. Citizen suits expand the resources available to protect the environment and the notice requirements give the government the first opportunity to act. This potential suit involves a series of complex and important legal questions the federal court will be asked to resolve.

2. Key legal issue # 1 – the drainage ditches are artificial conveyances of polluted ground - The key legal claim is the drainage districts built, manage, and maintain the system of drainage ditches which artificially collect, convey and discharge polluted groundwater into Iowa’s rivers and streams imposing costs on the DMWW and others who use the water. This makes the districts point sources under the CWA which need permits to discharge – no different than the discharge coming out of the pipe at a municipal sewage treatment plant or a private factory.

Presently EPA and the state do not treat drainage districts as point sources, but instead consider them to be an exempt nonpoint source - carrying water running off farm fields after storms. Under the CWA nonpoint sources are exempt from any permit requirements – which is why the CWA is largely a non-issue for most of agriculture – the exception being some concentrated animal feeding operations (CAFOs) are considered point sources and may be required to obtain a permit.

3. Key legal issue #2 - nitrates enter drainage ditches from groundwater – The second key legal claim is the nitrate contaminated water flowing in the drainage ditches is primarily ground water coming from tile outlets collected in the ditches and it is not surface water run-off. This issue is critical to the DMWW lawsuit because the CWA definition of exempt nonpoint sources includes “agricultural stormwater discharges.” This means the outcome of the case may hinge on whether what comes out of a tile line is considered groundwater or stormwater surface discharge.

When Congress wrote the CWA it did not define “agricultural stormwater runoff” and the federal courts have never had to answer what this means. Some observers believe tile lines have always been exempt from the CWA but no federal case law or legislation supports this. The courts have looked at “irrigation return flows” but that exemption is not applicable here. The importance of the groundwater-surface runoff distinction means the evidence of water contamination and the timing of the measurements will be critical evidentiary issues.

4. Key legal issue #3 - the lawsuit is against drainage districts not farmers – The lawsuit is not directed at individual farmers and landowners and not at tile outlets – but instead is directed at the drainage districts which under Iowa law are undeniably responsible for creating, operating, and maintaining the drainage ditches and system. Iowa has an extensive body of statutory law – over 70 pages and a constitutional amendment- on drainage districts, but a common understanding of their legal status and authority is not widely shared by lawyers, public officials, or farmers. Most Iowans including many in this room have no experience with drainage districts because they only operate in some parts of the state. The lawsuit raises important questions about the legal and jurisdictional relation between drainage districts and county governments, in part, because some districts are managed by county supervisors who also serve as trustees for the districts. That is the case for the three counties involved here - but one important legal issue will be whether the lawsuit is against the counties or against the districts?

5. Key legal point #4 - nothing will happen quickly – The citizen suit provision requires 60 days notice but it is uncertain when or even if the DMWW will actually file a lawsuit. It could happen next week or next year – or be postponed indefinitely if the board feels meaningful action is taking place. For example if the Legislature votes to raise the sales tax 3/8 cents to fund IWILL -the Natural Resources and Outdoor Trust Fund to provide steady and significant funding to share the cost of water quality actions needed by farmers and landowners – the suit may not proceed.

Even if a suit is filed it will trigger legal maneuvering: parties seeking to intervene on either side; lengthy discovery – gathering information and evidence; procedural disputes over whether the court has jurisdiction or the parties have standing to sue. Once it goes to trial and the court decides if the ditches are point sources – any ruling will likely be appealed.

The fact litigation takes time doesn’t mean it isn’t valid – and is certainly no reason for the state or farmers to stop taking action to protect Iowa’s waters.

6. The DMWW choice of drainage districts was very strategic – One of the key strengths of the DMWW litigation may be in the choice of the districts it has notified of the potential suit. The choices were not random but instead the districts were selected because they are predominantly agricultural and because the DMWW was able to obtain and verify credible and accurate readings of significant nitrate water pollution taken from publicly accessible sites, in part relying on U.S. Geological Survey testing.

The wisdom of this approach is reflected in the fact that with all the criticism of the possible lawsuit no one has challenged the claims about the high nitrate levels. This approach was in part designed to avoid the “lack of credible data” defense which some in agriculture have used in the past as a way to delay action. It also nullifies the goose poop and golf course arguments some have used to deflect responsibility

7. Implications or Possible Effects of a Ruling for DMWW are unclear – Assuming the federal court rules the drainage districts are point sources and need NPDES permits from EPA – the implications of the ruling or “what happens next” are uncertain. First, EPA and Iowa don’t consider districts a point source so there are no rules or standards for how to grant them permits to control discharges – like other point sources. EPA and Iowa would need to develop a permitting process. It could require districts to act to address water quality but EPA could also develop a “general permit” for drainage districts requiring little action on their part.

8. What could the drainage districts do to protect water quality? - A second aspect of the “what happens next” issue concerns exactly what legal authority do the drainage districts have to require farmers and landowners subject to their jurisdiction to take action? Clearly the districts have significant legal powers including the power of eminent domain, taxing authority through the levying of assessments on landowners, and the ability to enter onto property to construct and perform maintenance of ditches.

While districts may not have implemented rules to protect water quality – it is not unreasonable to believe they may have the legal power to do so – such as by requiring vegetative buffers on fields adjacent to ditches – or even requiring some form of treatment for water emptying into ditches from tile outlets. For example, could the districts require farmers to create wetlands or even purchase district owned land to be used as wetlands to treat water flowing through the systems? The truth is this is a largely unexplored area of Iowa law.

Now let me share some general observations about how we got into this situation.

9. The proposed lawsuit was predictable and is understandable – The DMWW warned people over 18 months ago it faced the need to consider filling suit unless aggressive and meaningful steps were taken to address the water quality problems in the Raccoon River. This action – which the DMWW board does not take lightly or without significant costs and risks - grows out of frustration with the state’s reliance on the entirely voluntary Nutrient Reduction Strategy (NRS) and the paltry funding the state has allocated to the water quality initiative.

Why did the DMWW decide to take this action now? It is uncertain why the DMWW decided to act but key factors or tipping points in the decision probably include the Governor’s May 2014 veto of the supplemental appropriation for the NRS which showed a lack of good faith and this winter’s spike in nitrate levels in the water which illustrated the growing and serious nature of the pollution problem. Claims about progress being made with the NRS and about the need for more time for it to work may be factors. The DMWW appears to be tired of waiting.

10. The real issue is accountability and responsibility – The DMWW board is obligated under the Safe Drinking Water Act to protect the 500,000 customers it serves. The board appears frustrated others in the watershed including drainage districts and farmers are not required – under current legal interpretations – to account for their impacts on water quality. They may feel the claims of “progress” with the NRS – aren’t supported by measureable improvements – and reflect a lack of urgency. In other words - talk is cheap and actions so far have been minimal – the lawsuit seeks to share the responsibility for clean water.

11. Dispute illustrates legal ironies and conflicts in Iowa’s water debate – First, we have a local unit of government with regulatory authority created to protect soil and water quality – the soil and water conservation districts, but they are not in the case, instead the drainage districts which were not created to protect water quality are.

Second, many believe surface runoff is the cause of water pollution, but the reality is surface runoff dilutes contamination and it is more likely the later ground water discharges from tile lines cause the increases in nitrate levels – that is why the suit focuses on groundwater.

Third, many agricultural groups claim nonfarm sources are contributors to water pollution in Iowa – the goose poop and golf course argument – which is why these drainage districts were singled out – they are predominantly agricultural areas.

Fourth the anti-regulatory dogma driving much of the Iowa debate about agriculture and water quality has delayed consideration and adoption of effective and low cost regulatory steps that could have addressed the problems before now and helped avoid the litigation.

12. Reactions to the proposed lawsuit are mixed but generally positive – News of the proposed suit was greeted with many predictable reactions – ranging from the Governor’s silly comment Des Moines had declared war on rural Iowa to the suggestion by some pork producers to boycott Des Moines. But the lawsuit has also generated a perhaps surprising level of supportive comments from across rural Iowa and from other communities – which illustrate a collective concern about the quality of Iowa’s water and the deterioration in our commitment to soil conservation and natural resource protection.

The recent Iowa poll shows a majority of Iowans, both urban and rural, support the idea of the suit. The poll is a significant indicator of the public attitudes about the need for action.

Surprisingly - this threatened litigation may turn out to be one of the most important things to happen in Iowa’s natural resource debate in decades – because it is making people think and may lead people – including local and state officials, farmers, and others - to take action.

13. Inadequacy of Nutrient Reduction Strategy are at the heart of the dispute – The proposed lawsuit has brought into focus some of the perceived inadequacies of the NRS, e.g. it is entirely voluntary; it has no standards, timelines or measurements; and the lack of funding for implementation. The NRS is not really a plan because it has no funding commitments or timelines for action. At best it is a promise we will try harder and at worst it is a continuation of Iowa’s legacy of delay and denial when it comes to dealing with natural resource issues.

The NRS fails to create a funding mechanism so the many farmers taking action to protect water quality can receive support for their efforts. Groups like the Iowa Soybean Association are providing critical leadership on innovative approaches to water quality.

Funding allocated to the NRS is minimal compared to the projected costs. Some point to how quickly the state’s cost share money is claimed - less than 5 days in 2014 - as a sign of success; but more realistically doesn’t this indicate the inadequacy of state funding?

Allocating a few thousand dollars to each county should be seen an embarrassment not a sign of commitment – or the basis to claim significant progress.

If we are serious about addressing water quality – and protecting soil – we should pass the IWILL legislation to increase the sales tax 3/8 cent so the Natural Resources and Outdoors Trust Fund has the cost sharing funds needed to help farmers. We now have a bill S.F. 357 introduced March 2nd by Senators Johnson and Dearden.

14. We Need a Regulatory Reality Check – Much support for the NRS as the “solution” to Iowa’s water problems is really an effort to prevent any consideration or use of regulatory approaches. Consider how often you hear leaders talk about how “one-size fits all” regulations are not the answer and no regulation will improve water quality. The “anti-regulation” dogma - championed by the Farm Bureau and others - is uninformed and shows a basic misunderstanding for how law works and for how the state and nation have historically made progress addressing soil conservation.

First, regulations are key to the legal system, they are how law is delivered - such as signing up for ARC or PLC payments as many of you will do at FSA offices this month. Regulations establish objective processes and responsibilities or duties for all individuals in society. Second, regulations operate by being uniform - one size fits all – the same rules apply to all citizens – you don’t get to make your own rules. If you want to buy crop insurance you follow the RMA rules.

Consider two examples – speed limits and blood alcohol limits. You can’t drive 60 in a school zone and then tell the officer its OK because you are really careful – or blow a .16 and explain it is all good because you can handle your liquor! The rules are the same for all of us. You comply with rules mainly because you accept the responsibility to act to protect the public – not because you fear the fines. The point is regulations don’t prevent people who want to comply from doing so – but they do require actions by those who would otherwise refuse to act.

Third, regulations establish responsibilities for people or they face risks. Consider how the 1985 conservation title – with sodbuster, highly erodible land, conservation compliance, and swampbuster provisions– was the key for making real progress in reducing soil losses in Iowa and across the nation. These are regulations - they were voluntary only if you wanted to operate without farm programs – and still are today - if you don’t want crop insurance. But rules like conservation compliance let you choose how to comply, they don’t require only one practice.

15. Iowa’s water will not be clean until rules require individual responsibility – The range of entirely unregulated farming actions that can impact Iowa’s water quality – such as unrestricted tiling and farming next to stream banks - means there is a key role for regulatory approaches. Iowa law already establishes a duty on all landowners to protect the soil and meet soil loss limits set by county soil districts. We need a similar rule for water quality. But any rules adopted will not need to be onerous, overly restrictive or costly. For example, here are two regulations that would be effective, relatively easy to adopt and have limited costs.

First, Iowa could require people farming next to rivers, streams and ditches to plant vegetative buffer strips of a minimum width. Second Iowa could require anyone applying fertilizer to develop a nutrient management plan to inform their decisions. How you comply with either requirement would be up to the farmer and landowner but everyone would need to comply. If you don’t think these rules are possible think again – Minnesota requires stream-side buffers and Ohio has recently adopted the nutrient planning rules. Adopting both measures would help protect Iowa’s water and share the responsibility, ideas most Iowans embrace.

In 1979 the Iowa Supreme Court faced a constitutional challenge to the law requiring landowners comply with soil loss limits. In Woodbury County Soil Conservation District v. Ortner the Court upheld the law, noting:

It should take no extended discussion to demonstrate agriculture is important to the welfare and prosperity of this state. It has been judicially recognized as our leading industry. The state has a vital interest in protecting its soil as the greatest of its natural resources, and it has the right to do so.

This means the state has the legal authority to impose a duty to protect water quality – if we choose to do so.

16. There are risks and uncertainties for farmers with the lawsuit – Clearly the lawsuit makes people nervous because it involves untested theories – and the outcome is hard to predict. DMWW officials are quick to point out they are not suing farmers or tile outlets – but this is a bit disingenuous because if the court agrees drainage districts are point sources they may have to take steps to obtain permits – which could result in farm level impacts. The DMWW suit may require actions by farmers living in drainage districts – we just don’t yet know what they might be. This is one more reason for farmers and all of us to protect water quality.

Conclusion - What is next? – The lawsuit can’t be wished away and there is little the legislature or Governor can do to influence what the DMWW decides – other than getting serious about water quality. DMWW faces significant economic costs – perhaps as much as $100 million if forced to build a new nitrate removal plant. Doing so would make the water safe to drink but do nothing to help Iowa find long-term solutions to a serious matter. The real answer is for all of us to collaborate and support innovative efforts to protect our water – and soil – and support profitable, sustainable farming.