IA-Sen: Judge playing down, Hogg playing up differences on water quality

Photo of Iowa stream courtesy of InIowaWater.org, a project of the Environmental Law & Policy Center

By entering the U.S. Senate race, former Lieutenant Governor Patty Judge ensured that environmental issues would become salient for many Iowa Democrats trying to choose among the four candidates running against Senator Chuck Grassley.

During the past two weeks, Judge has sought to minimize the daylight between herself and State Senator Rob Hogg on the need to address water pollution. But Hogg, widely considered Judge's leading rival for the nomination, has made environmental concerns a big part of his pitch to Democrats.

Runoff from conventional agriculture has impaired a growing number of Iowa waterways, adding to the cost of removing nitrates from drinking water and producing toxic algae blooms that led to a record number of beach advisories last summer. After years of downplaying or ignoring such problems, Governor Terry Branstad and Iowa House Republicans put forward plans this year to fund additional water quality measures. (Iowa Senate Democrats are expected to lay out a different plan to fund water programs tomorrow.)

Judge's campaign website still has no content beyond the landing page, and she hasn't made enough public appearances for me to get a sense of her standard stump speech. Her tag line in this race is "I'm the Judge Chuck Grassley can't ignore," and her campaign has touted her support among prominent women and other key Democratic constituencies. During an April 9 event in Ottumwa, Judge spoke about the controversy surrounding the Supreme Court vacancy and various policies to raise middle-class wages and reduce higher education costs, Neal Querio reported for the Ottumwa Courier.

However, Judge chose to focus on water quality in her first Des Moines Register op-ed column as a Senate candidate. The commentary appeared on the Register's website on April 1 and in print the next day. The campaign promoted it on Judge's Facebook and Twitter feeds. Excerpt:

I believe the solution to our water quality problem has to begin with addressing soil conservation and finding ways to slow water runoff from our fields. Finding a long-term solution to these problems will require research, education, long-term structural changes, and modern farming practices. Unfortunately, there is no quick fix that will protect our resources for future generations.

Iowans have known about this problem for years. That’s why, as Iowa secretary of agriculture, I worked hard to ensure funding for cost sharing programs and grant programs that made it possible to build permanent structures on farms like ponds and terraces, restore wetlands, stabilize stream banks, and install buffer strips. Like many Iowans, I grew frustrated seeing those vital programs underfunded year after year.

That’s why I strongly supported the passage of a constitutional amendment in 2010 which created the Natural Resources and Outdoor Recreation Trust Fund. An overwhelming majority — 63 percent of voters — agreed with me because they know this is the best avenue to a sustainable solution to our water problems. [...]

Funding the trust is a simple solution that already has bipartisan support. It doesn’t cut funding from education or other critical programs in our state and it doesn’t lead to years of litigation that pits one part of our state against another.

If funded the trust could provide well over $100 million per year for the ongoing work of protecting Iowa’s natural resources. This will provide a long-term sustainable approach that we desperately need.

Most people in Iowa's environmental community agree that a dedicated new revenue stream for conservation is preferable to diverting funds that pay for school infrastructure or other public services. (Some have concerns about making Iowa's tax system even more regressive by raising the sales tax.)

I do not recall Judge being involved in the effort to pass the constitutional amendment creating the trust fund. Her campaign did not produce any press clips from that period in response to my request. In fairness, environmental advocates tried to keep that debate separate from partisan politics, so they probably did not seek active assistance from Judge or from Governor Chet Culver. The Iowa House and Senate approved this amendment with large bipartisan majorities in 2008 and in 2009. I assume Judge shared in the political consensus.

State lawmakers are close to wrapping up the sixth legislative session with no action to raise the sales tax, despite the strong public support for the trust fund Judge mentioned in her op-ed column. In fact, more Iowans (629,235) voted to adopt this constitutional amendment in the 2010 general election than voted for Branstad or against retaining three Iowa Supreme Court justices that year. Judge is smart to advocate for filling the trust fund; since the sales tax increase is going nowhere, fallout should be minimal.

Another side of Judge's environmentally friendly messaging: she is rumored to be telling potential supporters in private conversations that she and Hogg have the same position on the Des Moines Water Works lawsuit against three northwest Iowa drainage districts.

On its face, the claim sounds preposterous. Hogg is a longtime champion of environmental causes and a past winner of the Sierra Club Iowa chapter's Public Service Award. Judge is a past winner of the Iowa Farm Bureau's Distinguished Service to Agriculture award. Soon after the Des Moines Water Works filed its lawsuit last year, she became a board member and media surrogate for the so-called Iowa Partnership for Clean Water, funded by the Farm Bureau and other groups that have opposed various efforts to reduce water pollution.

Nevertheless, Judge's campaign has managed to insert an equivalency narrative into some accounts of the Senate race. Kathie Obradovich's April 2 column for the Des Moines Register noted, "Both Judge and Hogg have said they believe people have the right to sue under the Clean Water Act but that the lawsuit would be costly in terms of money and lingering resentment."

When I sought comment on whether Judge is telling Democrats that she and Hogg agree on the Water Works lawsuit, campaign manager Sam Roecker responded by e-mail,

Patty has always believed we need a real and sustainable solution to Iowa’s water quality problem - the lawsuit route would take years, be very costly, and not provide the needed long-term funds to solve this problem. I believe Sen. Hogg has also expressed concerns about solving this issue through litigation.

Long-term and sustainable funding to address protecting our natural resources in why Iowans, including Patty, overwhelmingly supported the Natural Resources and Outdoor Recreation Trust Fund. She believes that this is the best route forward. I don’t have a record of all her public remarks from 2010, but I can assure you she was supportive of this. My guess is that most of the press coverage on Patty from 2010 focused on her reelection. I would note that the administration approved the amendment before it was even on the ballot in 2010.

Patty stepped down from the Iowa Partnership for Clean Water about a month ago.

Better late than never, I suppose. Judge left the organization only once she decided to run for Senate--not when the board approved spending six figures on tv ads that were a hatchet job on Water Works CEO Bill Stowe. And while I'm skeptical the lawsuit will change the way Iowa drainage districts operate, the case has forced policy-makers to acknowledge that nitrogen runoff is a problem demanding public action. Whether Branstad or Iowa House Republicans would have proposed any new water quality funding in the absence of the Water Works lawsuit is an open question.

I asked Hogg if he perceives any differences between himself and Judge on the lawsuit and received the following by e-mail:

My advocacy for clean water is one of the most significant differences between Lt. Gov. Judge and myself. I am a champion for clean water and have been during my entire public life. While I believe there are more efficient solutions than the lawsuit, I have helped educate the public about the real problems confronting the Des Moines Water Works and its need to provide safe drinking water to its 500,000 customers. Unlike Lt. Gov. Judge, I would never support an organization that conducted what the Des Moines Register called a "smear campaign" against the Water Works and its leaders. We need to unite our state and our country to solve our water quality problems.

Hogg made similar points in an interview with Obradovich, which she covered in that April 2 column:

Hogg also points to his environmental record as setting him apart. “I have a lot of Iowa Democrats who are really excited about having a champion for the environment in the United States Senate,” he said, citing his work on behalf of watershed management, passing a tax credit for solar energy and dealing with global climate change.

“There have been some times when she hasn’t been a champion for clean water,” he said of Judge. He cited her membership in Iowa Partnership for Clean Water. The non-profit organization opposes the Des Moines Water Works’ lawsuit against three rural counties over nitrate pollution. It ran TV ads in 2015 that The Des Moines Register editorial board called a “smear campaign.”

“That doesn’t show leadership for clean water. That shows tearing down, kind of, one side of the equation,” Hogg said.

The Register's Paige Godden covered a Hogg event on March 29, at which he praised some of Judge's work as lieutenant governor before adding,

“I believe in a vibrant, full-employment economy that works for all Americans, and that includes working people who are in labor unions. Her record is not so hot on that,” Hogg said. “The other big difference is I have been an advocate for cleaning up water.”

Hogg said Judge’s support of ads smearing Des Moines Water Work’s general manager Bill Stowe — who is not an elected leader — wasn’t right.

“You’re not going to hear me yelling angry comments about big polluters,” Hogg said. “Because I want to find a way to move our country together.”

When contacted by Godden regarding Hogg's remarks, the Judge campaign referenced her call for state lawmakers and the governor "to act before this session winds down" to fund the Natural Resources and Outdoor Recreation Trust Fund "create a long-term sustainable program to address this [water quality] problem."

Bleeding Heartland has previously discussed why Judge is not popular in the environmental community. Without retreading that ground, I want to add one more point.

The Iowa Farm Bureau Federation has opposed almost every attempt in recent memory to reduce water pollution through law or administrative rule. The group didn't even support the constitutional amendment creating the trust fund for natural resources.

While Judge was still lieutenant governor, the Farm Bureau and allied groups filed suit to block an antidegradation rule issued by the Iowa Department of Natural Resources. The rule represented one step toward protecting high-quality Iowa waterways and bringing our state into compliance with the Clean Water Act nearly 40 years after that federal law went into effect. A coalition of non-profit groups had worked for years to compel the DNR to act.

Not only did the Iowa Farm Bureau and other polluting interests attempt to nullify the antidegradation rule, the group tried to use the discovery process to compel the Iowa Environmental Council to hand over massive amounts of internal documents. A Polk County District Court judge rejected that motion, and a different District Court judge later declared all of the plaintiffs' legal arguments to be without merit. On appeal, a divided Iowa Supreme Court eventually dismissed the lawsuit, allowing the water quality rule to remain in effect.

For a well-funded interest group with a large staff like the Farm Bureau, legal action against one administrative rule was probably just a minor distraction. But for the Iowa Environmental Council, with which I've long been involved, defending that lawsuit created a huge drain on staff time and energy that could have been spent fighting other battles.

If the state Supreme Court ruling had gone the other way, the consequences for Iowa waterways would have been immense. No antidegradation rule with teeth could have been approved by the current Environmental Protection Commission, filled with industry-friendly Branstad appointees. Getting Branstad's DNR to enforce the antidegradation rule has been a headache in itself. A District Court ruled last month that the agency erred in allowing the city of Clarion to choose the least expensive option for a new wastewater treatment plant without considering the hidden environmental costs. (Scroll to the end of this post for more background on that case, which Orlan Love covered for the Cedar Rapids Gazette.) Though the latest lawsuit concerned a municipal plant, not pollution from agricultural sources, it underscores how much the Farm Bureau's litigation against the antidegradation rule could have harmed rivers and streams.

While some people in the environmental community were fighting to save and enforce the most important water quality policy enacted during Judge's tenure as lieutenant governor, Judge continued to align herself with the Farm Bureau. She accepted the group's highest honor and volunteered to assist their bogus "clean water" partnership as a board member and media surrogate.

Judge's stands on a wide range of other domestic policies make her a much better choice than Grassley, but in a Democratic primary, I can't look past her close cooperation with the Farm Bureau--especially when another candidate has an environmental record as strong as Hogg's. His commitment to these issues goes beyond raising the sales tax to pay for conservation programs. He literally wrote a book on climate change. In an April 8 e-mail to Democrats, he promised to be a leader who will "defend the EPA's Clean Power Plan and work to unite Americans for climate action and clean, renewable energy solutions. I will defend the Clean Water Act and work to unite Americans for clean water and for the protection and enhancement of our natural resources."

I appreciate that Judge has found her voice on conservation spending, but supporting the natural resources trust fund doesn't cancel out choices she made before she considered running for Senate.

Any comments about the race are welcome in this thread.

P.S. - A quick word on the other two Democratic candidates in this field. Tom Fiegen mentions water quality on the issues page of his campaign website:

My biggest concerns for Iowa and the country are: the need to address childhood hunger (One in five of our children in America is food insecure); the need to democratize and decentralize our food production in order to grow, process and market more healthy local fresh food (and revitalize local economies); and to clean up our water, by reducing and ultimately banning ag poisons like Roundup and Enlist herbicides. The number of cancer deaths in Iowa has increased over the last 40 years, despite tremendous medical advances, in large part because of the ag poisons in our drinking water.

Water quality is not among the key issues for Bob Krause.

UPDATE: Forgot to mention that the Farm Bureau played a major role in drafting Iowa's nutrient reduction strategy, originally proposed in 2012. Although the U.S. Environmental Protection Agency and others warned that an all-voluntary policy with no numeric standards was doomed to fail, the Farm Bureau continued to argue against any regulation or numeric targets that would help show whether Iowa was reducing water pollution from nitrogen or phosphorus.

March 25 press release from the Iowa Environmental Council and the Environmental Law & Policy Center (I am an active supporter of the ELPC but play no role in shaping their legal strategy):

Iowa Court Sides with Environmental Groups on Implementation of Clean Water
Anti-degradation Standards

ELPC and IEC win legal challenge to protect Iowa waterways

Des Moines – An Iowa District Court late last week found the Iowa Department of Natural Resources (DNR) failed to appropriately enforce the state’s clean water anti-degradation standards when it approved a wastewater treatment project that would increase pollution in the Des Moines River Watershed. The ruling is the first legal case addressing the enforcement of the anti-degradation standards since the Iowa Supreme Court upheld the standards in 2014.

In 2014, the City of Clarion submitted a project design to expand its wastewater treatment plant to DNR. Iowa’s anti-degradation standards require pollution permittees to consider alternative treatments that reduce pollution and implement those treatments where appropriate. However, while there was an alternative design that would reduce pollution – which Clarion’s own analysis deemed both practical and affordable – it was eliminated in favor of a less-expensive design based on costs alone. Despite its responsibility to enforce Iowa’s anti-degradation standards, DNR allowed Clarion to choose the least expensive option without fully considering the environmental improvement from the alternative, pollution-reducing design.

Following DNR’s approval of the Clarion project, the Environmental Law & Policy Center filed a petition for judicial review in state District Court on the Council’s behalf.

The Court found that under Iowa’s anti-degradation standards, a higher cost project design could be implemented if it would have a substantial environmental benefit. The ruling reverses DNR’s decision and requires the agency to revisit the analysis and appropriately account for environmental benefits of less polluting project designs.

“[E]conomic efficiency involves a comparison between costs and environmental benefit, [and] no such analysis appears in the final alternative analysis at even a rudimentary level,” stated Judge Michael Huppert in his opinion.

“We are pleased that the Court protected the integrity of Iowa’s clean water anti-degradation standards,” said Ralph Rosenberg, executive director of the Iowa Environmental Council.

“This ruling confirms that consideration of environmental benefits is not optional, and they need to be considered as part of the anti-degradation process,” explains Environmental Law & Policy Center Attorney Josh Mandelbaum. “The court’s ruling sends a strong message to DNR that they can’t skirt the consideration of environmental benefits simply by relying on cost.”

The Iowa Environmental Council has regularly filed public comments and met with DNR officials about the proper consideration of Iowa’s anti-degradation standards on an ongoing basis since 2013. These comments and concerns were disregarded, leaving no option but to seek a legal resolution.

“Iowa needed solid anti-degradation standards, and we worked hard to get strong but reasonable rules. DNR was omitting important aspects of those standards. With this new guidance from the Court, we look forward to working with DNR in the future to effectively implement the anti-degradation rules to protect some of Iowa’s most important lakes, rivers and streams,” added Rosenberg.

Adopted in 2010, Iowa’s anti-degradation standards are an important part of the Clean Water Act and are designed to prevent unnecessary new or increased water pollution.

LATE UPDATE: During her interview with the Des Moines Register's editorial board on May 10, Judge made some surprising comments about the U.S. Environmental Protection Agency's Waters of the U.S. rule. From Jason Noble's write-up:

“I think they’re probably on target,” Judge said of the measures contained in the Clean Water Rule. “I know a lot of my agricultural friends don’t agree with me on that but again, we are at a point where we’re going to have be serious about improving water quality.” [...]

Finalized in May, 2015, WOTUS defines what waterways and bodies of water are subject to the Clean Water Act. Critics – particularly in agriculture – call those new definitions overly broad and say they could subject property owners to government regulation of even tiny and temporary bodies of water.

Grassley and fellow Iowa U.S. Sen. Joni Ernst, have issued dozens of statements opposing the rule, and late last year advanced legislation seeking to invalidate it. [...]

Judge emphasized that she’s open to revisiting WOTUS, but said federal environmental authorities must have a role in improving water quality.

“As we discuss the farm bill, we are going to have to have that discussion about navigable waters, what the waters of the United States means, how do we regulate that, how much is too much or how much is necessary,” Judge told Register reporters and editors. “I don’t think we’re going to be able to have the luxury in the future of ignoring that. We’re at a crisis point and the EPA is going to have to be part of the solution.”

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