Dodgeville Chronicle Interviews Howard on Driftless Area Work

Dodgeville Chronicle

September 22, 2016

Chicago Environmental Law Group Tours Potential Power Line Routes in Iowa County

By Denise Thornton and Doug Hansmann

On Monday a busload of two dozen Chicagoans toured some of the most scenic spots in Iowa County, but these were no ordinary tourists. They were board members and staff of the Environmental Law and Policy Center (ELPC), a major Midwest public interest environmental legal advocacy and eco-business innovation organization.

Their route took them along the two proposed corridors for the American Transmission Company (ATC) high voltage power line.

ELPC’s staff of attorneys, policy advocates, finance advisors, communications experts and organizers take on issues concerning climate change, clean energy, clean air, clean water, transportation and special places of environmental interest. It is the last category that brought them to southwest Wisconsin.

Working with the Driftless Area Land Conservancy (DALC), a 15-year old Dodgeville-based land trust that has helped protect 6,000 acres of natural land from development, ELPC opposes the installation of the proposed high-voltage line that would carry electricity between Dubuque County, Iowa and Middleton, Wisconsin, adding about 500 steel towers to the landscape of southwest Wisconsin, each one standing 10 to 15 stories tall. The proposed line is slated to pass through some of Iowa County’s most fragile environments and places of great natural beauty.

The tour began at Brigham County Park looking out over the countryside beyond.

“The Driftless Area is an area where continental glaciers over the past two million years never touched the landscape,” explained David Clutter, executive director of DALC to the tour group.

ATC has proposed two possible routes for the transmission lines, which were marked in blue on the maps handed to the ELPC staff, board members and guests.

“This whole landscape is a very special place, but the transmission lines would come right through,” said Clutter, “either on the north side of Brigham Park or the south side.”

Mark Mittelstadt, a forester and DALC board member added, “We have heard a height of 150 feet for the power lines. The trees are about 75 feet tall, so the transmission towers would be standing well above the top of the woodlands.”

Howard Learner, executive director of ELPC, noted that The Nature Conservancy, a leading global conservation organization, has named the Military Ridge Prairie Heritage Area (95,000 acres of grassland landscape in Dane and Iowa counties) a priority area to protect because it provides habitat for declining species. With more than 60 prairie remnants, it is one of the highest concentrations of native grasslands left in the Midwest.



Des Moines Register: ELPC’s Mandelbaum Talks Public Health and Water Pollution


September 15, 2016

Supreme Court Case is Key to Recouping Damages from Nitrate Pollution

By Grant Rodgers

In its water quality lawsuit, Des Moines Water Works is fighting a longstanding precedent protecting drainage districts from lawsuits.

Arguments in front of the Iowa Supreme Court on Wednesday could determine whether Des Moines Water Works can win financial damages for nitrate pollution flowing into the Raccoon River.

A ruling in favor of the central Iowa utility could significantly alter a century of legal precedent. For decades, agricultural drainage districts created to turn swampy, wet ground into valuable Iowa farmland have been protected from most lawsuits.

Unlike cities or counties, these quasi-governmental entities are set up at the request of landowners to perform a very specific task: Move water out of flat Iowa fields that can’t drain themselves naturally so that farmers can plant crops. A drainage district is “merely an area of land,” so it cannot be sued in civil court for monetary damages, the Iowa Supreme Court has ruled.

That longstanding precedent could be upended by Des Moines Water Works’ controversial federal lawsuit against drainage districts in three northwest Iowa counties.

The public utility that provides drinking water to 500,000 customers filed suit last year against drainage districts overseen by Sac, Calhoun and Buena Vista counties. It alleges the drainage districts’ tiling systems dump dangerous amounts of nitrate fertilizers into the Raccoon River, one of the utility’s main sources of water.

As part of the lawsuit, Des Moines Water Works hopes to win damages that could make up for the money it has spent removing nitrates from its water, a process the utility claims it spent $1.5 million on last year alone.

Why case is an ‘uphill battle’
Given this backdrop, some legal experts predict the public utility’s attorneys could face tough odds in swaying the justices to move away from the precedent that has protected the state’s approximately 3,000 drainage districts from having to pay such damages.

“They really do face an uphill battle of a very long, established history of Iowa case law that stands in contrast to these arguments that they’re making,” said Kristine Tidgren, an attorney at Iowa State University’s Center for Agricultural Law and Taxation.

Though the lawsuit was filed in federal court in the Northern District of Iowa, the seven justices will consider the arguments through a rare procedural move known as a “certified question” in which state supreme courts tackle questions about state law before a federal judge issues a decision. U.S. District Judge Mark Bennett asked the justices to step in after the three counties asked him to dismiss part of the lawsuit, claiming they should be immune from paying damages.

Regardless of the court’s decision, a main piece of the lawsuit asking for increased federal oversight of drainage districts will move forward. But winning monetary damages is an important part of the litigation, given the amount of money central Iowans have paid to clean dirty water that flows out of farm fields, Des Moines Water Works CEO Bill Stowe said.

“Our rate payers have paid literally tens of millions of dollars historically to clean up water that’s come through the drainage districts under the supervision of county supervisors,” said Stowe, who holds a law degree from Loyola University. “There’s a significant backward and forward looking piece to this issue. The backward-looking is the damages.”

Faced with rising nitrate levels in the early 1990s, the public utility spent $4.1 million to build the world’s largest ion exchange nitrate removal facility. Des Moines Water Works expects it will need an even bigger facility by 2020. That project could cost up to $183.5 million, the utility has alleged.

There is fear in the agricultural community that farmers will be on the hook to make payments if the Iowa Supreme Court rules that damages can be awarded, Tidgren said. When county supervisors lay new drainage tile or make repairs to districts under their control, those costs are normally assessed to the farmers. “I don’t really know why tort damages would be any different,” Tidgren said.

“‘If it did indeed prevail against all of those odds, it would be a very difficult judgment for Iowa farmers in particular to face,” she said.

Supreme Court upheld precedent in the past
The case law that gave drainage districts immunity developed at the outset of the 20th century. That was a different time when clearing water from fields was viewed by lawmakers and the court as protecting public welfare and health, Water Works and environmentalists have argued. Now the court should introduce some balance to the equation, recognizing the toll that drainage districts take on public health when nitrates run unchecked into the Raccoon River, said Josh Mandelbaum, a Des Moines staff attorney with the Environmental Law and Policy Center.

“That’s a really important issue, accounting for public health and the impact that water pollution can have on public health as part of this conversation,” he said. “That’s something that has never been before the court.”


Press Release: Environmental Groups Call For Strong Net Metering Standards in Iowa


September 1, 2016


David Jakubiak, ELPC

Katy Heggen, IEC

Utility Proposals Filed in Iowa Solar Energy Case
Environmental Groups Renew Call for Strong Net Metering Standards

On July 19, 2016, the Iowa Utilities Board issued a strong order preserving the existing net metering framework. The order also requires utilities to file pilot net metering tariffs designed to encourage renewable energy development. On Wednesday, MidAmerican Energy and Interstate Power and Light Company filed proposals with the Board.

The Iowa Environmental Council and Environmental Law & Policy Center are reviewing the utilities’ proposals. We look forward to receiving input from solar developers, customers, and other stakeholders, and continuing to work with the utilities to effectively implement the Board’s order to preserve and expand net metering and encourage more renewable energy in Iowa. In addition, we think the intent of the Board was to allow customers to net meter up to 100 percent of their annual energy usage. We are concerned that the requirement to have the cash out in January limits this. We look forward to working with all stakeholders and the Board to address this issue moving forward.

“We commend MidAmerican for proactively working with stakeholders to address concerns about the definition of 100 percent of load and allowing third party financed systems to net meter in its initial filing,” said Josh Mandelbaum, staff attorney with the Environmental Law & Policy Center. “We are disappointed that IPL did not address concerns that we shared in developing this filing, but we are hopeful that they will make improvements going forward.”

“Iowa has the potential to be a leader in solar, just as we are for wind, and growing solar energy benefits our economy and environment,” said Nathaniel Baer, energy program director at the Iowa Environmental Council. “Net metering is one of the key policies to encourage more solar, which the Board order recognizes, and we expect the utilities to implement the pilots to achieve this goal.”

Power Magazine: Huge New Wind Farm Commended By ELPC

Image result for power magazine logo

August 29, 2016

Huge Iowa Wind Farm Gets Go-Ahead 

By Thomas Overton

MidAmerican Energy’s Wind XI project in Iowa, which will comprise up to 2 GW of total generation, has received approval from state regulators to proceed with construction, the company said.

The $3.6 billion project will place 1,000 turbines at several sites still to be finalized. Plans were announced in April 2016, and the Iowa Utilities Board on Aug. 29 gave approval to proceed. The company is not asking for a rate increase or assistance from the state to pay for it.

State and local environmental groups hailed the decision.

“The economic, environmental and community benefits derived from wind energy are clear and compelling in Iowa,” said Josh Mandelbaum, staff attorney with the Environmental Law & Policy Center. “We look forward to working with MidAmerican and the Utilities Board to help the state fully realize those benefits as the project gets underway, and to helping advance other wind, solar and energy efficiency projects that will accelerate Iowa’s transition to clean energy.”



News: ELPC, Iowa Environmental Council Commend Approval of Wind XI

August 29, 2016


David Jakubiak

Environmental Groups Commend Approval of Nation’s Largest Wind Project
Wind XI Extends Iowa’s National Clean Energy Lead

The Iowa Environmental Council joined the Environmental Law & Policy Center on Monday in commending the Iowa Utilities Board (IUB) for approving Wind XI, a 2,000 MW wind energy proposal announced by MidAmerican Energy this April.

“We applaud MidAmerican for its continued wind energy leadership, and commend the IUB for issuing the approval order a full month before MidAmerican’s requested decision date,” said Nathaniel Baer, energy program director with the Council. “The early approval helps ensure MidAmerican can take full advantage of the recently extended federal wind production tax credit – a policy we support.”

According to the utility, once completed, Wind XI will be the largest wind energy project in the US, powering approximately 800,000 homes.

“The economic, environmental and community benefits derived from wind energy are clear and compelling in Iowa,” said Josh Mandelbaum, staff attorney with the Environmental Law & Policy Center. “We look forward to working with MidAmerican and the Utilities Board to help the state fully realize those benefits as the project gets underway, and to helping advance other wind, solar and energy efficiency projects that will accelerate Iowa’s transition to clean energy.”

Wind XI is slated for completion by the end of 2019, and will increase the amount of installed wind in Iowa – 6,212 MW at the end of 2015 according to the American Wind Energy Association – by nearly one-third. This project, along with other wind energy projects currently under construction and development, will be a significant boon to Iowa wind energy economy.

The groups have indicated strong support for the project, jointly intervened in the Wind XI docket, reviewed hundreds of pages of filings, and submitted testimony in support of MidAmerican’s proposal.

Wind XI and other significant clean energy projects currently before the IUB for consideration – including a 500 MW project proposal announced by Alliant Energy last month – position Iowa to reach several key clean energy milestones. Wind XI puts Iowa on a path to exceed 40% wind energy and 10,000 MW of installed wind by 2020. According to several Department of Energy studies, Iowa could reach 20,000 MW by 2030.

Wind energy currently provides more than $17 million in land lease payments to landowners annually, supports between 6,000 and 7,000 jobs in Iowa, and is a leading source of property taxes in counties with significant wind development. Wind is also a low cost energy resource and one of Iowa’s leading options for cleaner air.

Both MidAmerican Energy and Alliant Energy’s announcements position the utilities to comply with the Clean Power Plan, which aims to reduce carbon pollution 32 percent nation-wide by 2030. Our analysis indicates that continued energy efficiency programs along with wind additions ranging from 1,500 MW to 2,500 MW will be enough for Iowa to meet its modest carbon pollution reduction target by 2030.

Press Release: Iowa Enviro Groups Alarmed by Vote to Change Clean Water Standards

August 10, 2016

Contact:  Judith Nemes, (312) 795-3706,

Iowa Enviro Groups Alarmed by Vote to Change Clean Water Standards
Rushed rule-making process significantly weakens water quality protections

DES MOINES – Two of Iowa’s leading environmental groups warn today’s Iowa Environmental Protection Commission unanimous vote to adopt changes to – and weaken — the state’s clean water anti-degradation standards will likely lead to more pollution and undermine the Iowa Nutrient Reduction Strategy.

In an unusual move, Iowa’s Department of Natural Resources recommended emergency implementation of the rule change. The amended guidelines are slated to go into effect on Friday, August 12.

Representatives from the Environmental Law & Policy Center (ELPC) and Iowa Environmental Council (IEC) attended the Wednesday meeting to reiterate concerns that the proposed changes would represent a big step backward in the state’s clean water efforts. The groups previously spoke against the proposed changes at the Administrative Rules Review Committee meeting in July, the public hearing in June and the EPC meeting in May, and submitted written comments outlining concerns. The groups have suggested a stakeholder process to develop further guidance to address other stakeholder concerns without weakening existing clean water protections.

“DNR has made no effort to bring stakeholders together to address these changes, and as a result, the final rules have significant problems,” said Josh Mandelbaum, a staff attorney in ELPC’s Des Moines office.

“Iowa’s anti-degradation standards were developed over the course of nearly two years with input from environmental, business, industry and utility groups,” said IEC Executive Director Ralph Rosenberg. “As a result, the standards were strong, but reasonable, and balanced economic and environmental concerns. That balance has shifted.”

In March, a district court judge sided with the IEC and ELPC in a case that compels DNR to appropriately enforce Iowa’s anti-degradation standards – a pillar of the Clean Water Act designed to prevent unnecessary new pollution.

Per the ruling, DNR must ensure that projects seeking permits to add new pollution to a waterway have considered and appropriately accounted for the environmental benefits of less polluting alternatives, and that less polluting alternatives cannot be eliminated based on cost alone.

In response, the Iowa Association of Business and Industry, Iowa Association of Municipal Utilities and Iowa League of Cities filed a petition for rulemaking, and DNR recommended changes based on the petition to the EPC in May. The amendment removes the provision requiring consideration of environmental benefits before eliminating less polluting alternatives, replacing the existing case-by-case approach with a one-size-fits-all approach based on cost alone. The change opens the door for Environmental Protection Agency intervention.

ELPC and IEC were instrumental in shaping Iowa’s strong but reasonable anti-degradation standards. Both groups have regularly filed public comments and met with DNR officials about the proper consideration of Iowa’s anti-degradation standards since 2013. DNR’s lack of action on these concerns led to the Council’s decision to have ELPC file a petition for judicial review on its behalf in the state District Court. That victory was the first legal case addressing the enforcement of Iowa’s anti-degradation standards since the Iowa Supreme Court upheld the standards in 2014.

The EPC’s vote in favor of the petition for rule change will head to the Administrative Rules Review Committee of the Iowa Legislature for approval. EPA will also need to approve these rule changes.


Cedar Rapids Gazette Editorial: Agreement with ELPC’s Mandelbaum Assertion that Process for Rule Change to Weaken Water Quality Standards Moving too Quickly

Cedar Rapids Gazette

Put the brakes on changes to clean water rules in Iowa

Staff Editorial
Aug 9, 2016

Iowa’s Environmental Protection Commission is poised to make an important decision this week with blinding speed and too little input from the public and stakeholders.

The commission is scheduled Wednesday to take up a major change in Iowa’s anti-degradation rules, which are designed to protect our waterways from new, unnecessary pollution from point sources such as factories and wastewater facilities.

Iowa’s robust standards call for a three-part analysis of construction proposals that would increase pollution to Iowa waterways, including a cost-benefit analysis of alternative, polution-reducing designs.

In March, a District Court judge ruled that the Iowa Department of Natural Resources had failed to enforce that standard, a victory for environmental groups but a defeat for businesses and municipalities who contend the cost-benefit analysis is too difficult and expensive to calculate without clear methodology or process from the state.

The DNR contends those costs are tough to figure. Members of the Iowa Environmental Council who met with our editorial board last week say they are more than willing to sit down with DNR, cities and others to find a reasonable path forward. Instead, the EPC is moving to simply strike the cost-benefit analysis from the rules, limiting the cost of new antipollution measures at treatment plants to 115 percent of their base control costs. Left out of the equation is the cost of dirty water, or the value of reducing pollution.

The EPC is attempting to adopt the rule change on an “emergency” basis. So if it’s approved Wednesday, the new rule takes effect on Friday. The DNR did allow a public comment period in June and early July, but this still seems like an unwarranted summertime rush job.

“This is the fastest I’ve seen rule-making move,” Josh Mandelbaum, a staff attorney with the Environmental Law and Policy Center told us last week.


Des Moines Register Op-Ed: ELPC’s Mandelbaum Calls for Balance in Iowa Water Safety Standards

Clean water requires balanced approach

By Clare Kernek and Josh Mandelbaum
August 5, 2016

For nearly 45 years, the Clean Water Act has provided critical protections for the nation’s waters. Anti-degradation standards are a pillar of the act and are meant to keep clean water clean by preventing unnecessary new or increased pollution.

Iowa’s anti-degradation standards were carefully designed to ensure economic and environmental considerations are balanced. The anti-degradation review process, which is only triggered when a facility applies for a permit to increase pollution, requires applicants to consider and appropriately account for the costs and environmental benefits of alternative treatments that reduce pollution. This analysis, known as economic efficiency, determines if the option is cost-effective, essentially evaluating the “bang for the buck.”

Unfortunately, the economic efficiency analysis in Iowa’s anti-degradation standards has not been properly implemented, prompting the Iowa Environmental Council to request a review by the courts.

This spring, an Iowa District Court judge sided with the council in a ruling that compels DNR to appropriately enforce Iowa’s anti-degradation standards. The ruling confirms that facilities seeking permits to increase water pollution must appropriately account for the environmental benefits of affordable alternatives that would decrease pollution.

Now, three groups — the Iowa Association of Business and Industry, the Iowa Association of Municipal Utilities, and the Iowa League of Cities — have petitioned DNR to change Iowa’s anti-degradation standards. If adopted, the changes would allow facilities to arbitrarily eliminate affordable, less polluting options based on cost alone without any consideration of environmental benefits. This would significantly weaken existing water quality protections and undercut current clean water efforts.


Progress IL: Enviros rally & testify on clean energy justice issues in Chicago

Environmentalists from across the country were in Chicago Wednesday to testify before the U.S. Environmental Protection Agency about its proposed Clean Energy Incentive Program (CEIP).

CEIP is an optional component of the Clean Power Plan, which seeks to slash carbon emissions from existing U.S. power plants. The voluntary incentive program is meant to jump-start action to curb carbon pollution and help states comply with the Clean Power Plan.

CEIP seeks to reward early investment in energy efficiency and solar projects in low-income communities as well as zero-emitting renewable energy projects — including wind, solar, geothermal and hydropower — in all communities.

Participating states could use the emission allowances or emission rate credits distributed through the program to comply with the Clean Power Plan when it takes effect in 2022. The EPA, which released its updated CEIP plan in June, is proposing that the matching pool of allowances or emission rate credits be split evenly between low-income community projects and renewable energy projects.

Emma Lockridge, a leader with Michigan United and the People’s Action Institute, was among dozens of speakers from across the country who testified this morning in support of making CEIP mandatory and more comprehensive.

Lockridge and many other hearing attendees described themselves as living in frontline, environmental justice communities.

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Des Moines Register: Rate Agreement Moves MidAmerican Closer to $3.6 Billion Wind Project


By Donnelle Eller

MidAmerican Energy, environmental groups and large tech companies reached a rate agreement over the Des Moines-based utility’s plan to invest $3.6 billion in wind energy.

The settlement, which goes to the Iowa Utilities Board for consideration, lowers from 11.5 percent to 11 percent the return MidAmerican would receive from its investment in 2,000 megawatts of wind energy generation.

Among other changes in the settlement, MidAmerican Energy agreed to not sell to other states, utilities or businesses renewable energy credits from the large project when customers choose to claim green energy use.

That’s important to companies like Google, Microsoft and Facebook, all of which have large data centers in Iowa that are large energy users. Environmentalists have pushed big social media, software and internet search companies to reduce their reliance on power generated from fossil fuels.

“We are pleased that all of MidAmerican’s customers will benefit from this settlement,” said Doug Gross, a Des Moines attorney representing Google, Facebook and Microsoft. “We look forward to continuing to work with MidAmerican to ensure that customers have a voice in decisions that affect Iowa’s energy future.”

The project, MidAmerican said, “will bring significant environmental and economic benefits to our customers and the state of Iowa without the need to ask for a rate increase.”

Iowa Environmental Council and Environmental Law & Policy Center, also involved in settlement discussions, applauded the agreement as well.

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