The Supreme Court Rolled Back Clean Water Protections, but Some Iowans Are Fighting Back

James Berge remembers when the water near his house used to be clean. But in recent years when the lifetime resident of rural Iowa walks down to the water, “it’s filled with algae and brown,” he says. “I wouldn’t even eat a fish out of these rivers.” An explosion of hog farms, lax regulations and a drought are behind the pollution. In short, Iowa has a water problem, and the Supreme Court’s decision last year to roll back Clean Water Act protections could make things worse. But a coalition of lawmakers and advocates hope that a new proposed state law, the Clean Water for Iowa Act, could make a difference.

Until the spring of last year, there was at least one federal law offering Iowa waterways some protection: the Clean Water Act. Passed in 1972, the law prohibited dumping pollution into a whole host of waterways that fell under the Environmental Protection Agency’s jurisdiction, including, crucially, wetlands. In Iowa, wetlands are home to wildlife, and they also help filter out nitrates and phosphorus, two toxic pollutants that come from industrial hog farms. On average, wetlands reduce nitrogen by more than 50 percent, according to the group Clean Water Iowa.

A Supreme Court decision upended that protection last year. An Idaho couple, the Sacketts, filed suit against the EPA after the federal agency threatened to fine them for backfilling the wetlands located on their property. The wetlands were connected to an intra-state lake that was “navigable,” which meant it qualified under the Clean Water Act at the time, until the Supreme Court ruled.

Though there was some disagreement on the definitions raised by the case, the Supreme Court ultimately decided in Sackett v. EPA that the agency had overstepped in its regulation. Now, the Act’s federal protections only apply to those lakes, streams, rivers and other bodies that are navigable or have a continuous surface connection to a body of water that is — significantly reducing the EPA’s jurisdiction. In simple terms, if you can’t take a boat out onto it, or it doesn’t connect to a source that you can take a boat out onto, then it’s no longer protected by the Clean Water Act.

The impact of the court’s ruling is that the vast majority of wetlands, as well as many tributaries are now no longer protected by the law. The decision was a big win for factory farms and other polluting industries, but a newly proposed state legislation in Iowa could pump the brakes on the meat sector’s wanton water pollution — that is, if the new bill passes.

Farms Housing 23 Million Pigs Pollute Iowa’s Water

In just two decades, the number of factory farms in Iowa has increased by almost fivefold. The state is now home to 10,828 of these industrial operations, according to Iowa Department of Natural Resources data. There are numerous dairies and poultry farms, but the vast majority of the facilities are hog farms. Collectively, these CAFOs — confined animal feeding operations — house more than 23 million pigs, which is over seven times the human population of the state.

“Iowa has been in a water quality crisis for a long time,” says John Aspray, campaigner for the environmental group Food and Water Watch. It’s the factory farms, says Aspray, and it’s also a failure of state regulators to curb pollution. “Iowa as a state has not devoted resources to protecting water quality,” he says, and the effect of that decision is clear. In 2022, more than half of tested bodies of water were polluted per the state’s Department of Natural Resources.

Water pollution doesn’t care about state lines either — lax policies in Iowa have an impact on the rest of the nation, and even further beyond. Polluted water in Iowa even makes its way all the way to the Gulf of Mexico, says Paul Norland, a neighbor of John Berge’s.

Charlie Tebbutt is a public interest attorney who works on water pollution cases. The future for Iowa water has looked pretty bleak for some time, he says. But now, Tebbutt fears the Supreme Court’s decision in Sackett will make things worse, as it opens up a new defense for would-be polluters.

At least one court has already applied the ruling’s looser restrictions on water pollution. In December, a Louisiana court ruled in favor of landowners in a ten-year legal battle over the development of 40 acres. The court found that under the new Sackett ruling, the property’s wetlands were not subject to the Clean Water Act.

Meat industry groups were among those eager to reap the benefits of the rollback, including The National Cattlemen’s Beef Association (NCBA). A month after Sackett was decided, the NCBA was among those that filed a lawsuit against the EPA seeking to overturn a Biden-era rule that broadly defines which waters are federally protected, relying heavily on Sackett v EPA in its arguments. The agency released amendments to the rule to comply with the decision in August, officially rolling back water protections and placing wetlands at risk.

The Supreme Court didn’t understand the science, says Tebbutt, and yet they “issued opinions that are completely ignorant of science, the law and what Congress intended.”

Iowans Fighting for Clean Water Protections

“[F]armers and ranchers…have a strong interest in clear and sensible regulation of water resources,” read a brief filed by 20 different state farm bureaus, including Iowa’s, in the Sackett case. “That is why they historically have been at the forefront of balanced and responsible efforts to protect such resources.”

James Berge doesn’t see it that way. The longtime Iowa resident and clean water advocate says, “If [farmers] are doing the best job…then how come the rivers are getting worse?” It’s a question that he poses to legislators every chance he gets, and some are listening.

Berge is among a coalition of advocates fighting for a statewide factory farm moratorium, a ban on any new factory farms, supported by 88 percent of independent rural voters in the state according to at least one 2020 poll. State representative and speaker of the house Pat Grassley (R), who represents a district with many hog producers, called the proposed ban “dead on arrival.” Now, Iowa state lawmaker Art Staed (D) is taking a different approach. Staed recently introduced the Clean Water for Iowa Act, a new piece of legislation aimed at bolstering state regulations of water pollution.

According to Food and Water Watch, one of the environmental watchdog groups that has endorsed HF2354, the proposed Act would require the facilities to monitor how much waste they release into waterways, and reduce how much they’re releasing where necessary. The regulation would also allow the state to step in when needed to protect the state’s water quality.

For now, Berge continues to advocate for the moratorium on factory farms and tackle new factory farm construction on a grassroots basis. “Last fall we got lucky, and [a CAFO] that was going to be built within a mile of my place was shut down,” he told Sentient. But that’s just one facility among many. Paul Norland, a neighbor of Berge’s, was unable to stop the construction of another factory farm closer to where he and his wife live.

My wife has some health issues, Norland explains, “and personally I just don’t want to live around it.” Norland raised pigs with his dad 50 years ago, before the explosion of industrial hog farming in the state.

There are many reasons an Iowan may not want to live near a CAFO, says Norland, including water pollution, but also animal welfare and working conditions on factory farms. “People really have learned that you don’t want to build around a CAFO,” he says. “You don’t want to put up a house.” Berge and many of their other neighbors agree. “There are so many people who have the same views as I do, and when we get together we’re a pretty good force to reckon with,” he says.

This article has been updated to correct the spelling of John Aspray’s name.