Dan Haug - Prairie Rivers of Iowa

Drainage “Improvements”

by Dan Haug | Jul 31, 2023

Sometimes, cutting down trees and moving earth along a stream is necessary to ensure adequate drainage for crops or prevent destructive flooding. Sometimes, it is necessary to reconnect a stream with its floodplain after centuries of hydrologic alteration, erosion and siltation. Sometimes cutting down trees and moving earth isn’t necessary at all, or could be done in a much smaller footprint. You can’t always tell which is which unless someone who knows the land goes to the trouble of reading dull engineering reports and attending dull meetings.

In 2020, a group of landowners successfully petitioned to reclaim trusteeship of their drainage district from the Clay County Board of Supervisors in order to block what they see as a “huge, costly, and environmentally destructive improvement on Pickerel Run.” I share this story, related by Steve Swan, in hopes it encourages more people to go to the trouble.

-Dan

Drone footage of Pickerel Run (source: pickerelrun.com)

By Steve Swan

Pickerel Run is a tributary of the Little Sioux River, located east of Spencer. Drainage District #37 was formed in 1917 to improve drainage by dredging, straightening and widening parts of this stream. Pickerel Run is unusual in that it has not silted in and in many places is almost twice as wide as originally constructed, and therefore is capable of carrying more water than the original design. These days, fewer farmers are grazing livestock and trees have grown up along the banks. Trees can impede drainage when they fall into the channel or when they grow too close to the normal waterline, so some need to be removed, but most are not causing problems and seem to be stabilizing the bank.

Our understanding of the situation was not reflected in the 2018 report by Bolton & Menk, which took several years to complete and cost over $100,000. Landowners were oblivious to what was going on until the report was done and a $3.6 million improvement was recommended, which would remove all trees within a 300-foot work area, level the spoil banks, and dredge the stream. The engineers were sure that 55,000 acres of land upstream could be annexed once the project was completed and be made to pay a significant portion of the bill. This proposal came at a time when cash rents in Clay County had been falling for several years.

The highlighted stretch of Pickerel Run in included in D.D. 37

In many counties, the county supervisors act as trustees for the drainage districts. Iowa code is clear that trustees are obligated to make repairs if necessary, desirable and feasible. However, Iowa’s drainage laws (Section 468) make easy for engineering firms to initiate a massive drainage project—a single signature on a petition—and very difficult for the landowners who must ultimately pay for the project to stop it once it gets rolling. The remonstrance process requires representation of 70% of the acres and 50% of the owners to vote against the project, with parcels held the government or still in the name of a deceased owner defaulting to count in favor of the project.

Once they found out what was happening, landowners began the remonstrance process, and were assured that time would be given for owners to register their opposition of the project. The supervisors called the remonstrance vote early and an initial reading of the results showed a shortfall of the votes needed to stop the project, but the spreadsheet used to calculate the remonstrance contained many errors. A lawsuit ensued.

Realizing that the supervisors were going to stay their course, landowners took advantage of the law and forced a vote to make the trusteeship of the drainage district private. There were more irregularities and another lawsuit for which our landowners had to pay both sides.

Eventually landowners won control of Pickerel Run/DD#37. After the successful privatization of our district, the “drainage industry” successfully lobbied for an amendment to Iowa Code 468 making it more difficult for other districts to follow suit.

Since the landowner trustees have taken office, a plan has been developed to keep water flowing while still maintaining some of the wonderful habitat that had developed over the past 100 years. Some trees have been cut, but many have been saved. Money is being spent, but much less than what would have been spent. The bed of the creek, which supports five species of native mussels and seventeen species of fish, has been spared a clean sweep by big earth moving equipment. The banks are still a haven to a multitude of wildlife species, including a great blue heron rookery, bald eagles, countless waterfowl, and deer in a sea of corn and soybean fields.

Iowa is a farm state and water does need to drain. Perhaps the simplest and best way to ensure that drainage projects are only done when truly needed would be to amend the threshold required for a remonstrance to stop a project.

My dream would be that all the groups that support quality of life in Iowa would become aware how important Iowa Code Section 468 is to life in Iowa and come together to lobby and oppose self-serving engineering firms in the drainage industry that are mainly looking for additional projects to generate revenue, regardless of damage done.

Tallgrass Prairie – A Butterfly’s View

by Dan Haug | Jul 13, 2023

The tallgrass prairie once covered 170 million acres, and at the 2023 North American Prairie Conference, I was reminded of that continental scale. Between assisting presenters with technology, I heard sessions about protecting orchids in the aspen-prairie parkland of Manitoba, time lapse photography along the Platte River in Nebraska, surveying insects in Alabama’s “Black Belt”, restoring spring wildflowers on the Kankakee Sands of Indiana, and building out the native seed supply chain in South Dakota, as well as lots of good information from friends and colleagues in Iowa. The following are a few insights I picked up from the conference, written from a butterfly’s perspective.

Hi, I’m a monarch butterfly (Danaus plexippus). Like the meadowlark, I continued to thrive in Iowa long after the prairie was broken. For me, the tipping point was when GMO soybeans and copious use of herbicides replaced “walking the beans” as a method for weed control. No more milkweed in farm fields! Like the meadowlark, I’m a strong flier and not too picky about my habitat, but I’ve got two pairs of eyes (two compound eyes and two ocelli) so my perspective is a little different!

Monarchs on meadow blazingstar, photo credit Monarch Butterfly Garden

For me, it’s all about the forbs—broad-leaved herbaceous plants. I know, you can’t have grassland without grasses, but I need milkweeds to feed my caterpillars and nectar-producing flowers to drink. I’m visit whatever flowers are blooming (I’ll even use non-native forage plants like red clover and weeds like musk thistle) but since Dr. Benedict and his students are asking, yes, I do have some favorites. In addition to milkweeds, I’m partial to plants in the sunflower family, which have heads packed with nectar-producing, short tubed flowers that make for easy sipping. At the Central College prairie, compassplant (Silphium laciniatum) is my top choice, but that’s just because you don’t have any meadow blazing star (Liatris ligulostylis). As native plant nurseries and seed producers can attest, we monarchs go nuts for that!

In some remnant prairies, we’ve seen the forbs get crowded out by aggressive grasses like big bluestem and switchgrass. It’s even worse in restored prairies that used too much grass in the seed mix—we see this with older CRP plantings. On the other hand, a seed mix without any native grasses won’t have all the functions of a prairie and won’t hold up well against invasive weeds. In an intact prairie, the big warm-season grasses are important, but they’re kept in check by a combination of fire and grazing—the fire makes the grass green up and then the bison chow down! Hemiparasitic plants like lousewort (Pedicularis lanceolata) and bastard toadflax (Commandra umbellata) also set back the grass by sending a modified root into the grass roots and sucking out their juices. Prairie isn’t just a collection of native plants, it’s a web of relationships!

Few reconstructed prairies have bison or hemiparasitic plants, so check out this NRCS publication for other ideas to increase forb diversity in grass-dominated stands.

If you’re starting from scratch, be sure to use a seed mix like CP25 or CP42 that includes plenty of native flowers. We’re happy to learn that over 600,000 acres in the Conservation Reserve Program (CRP) have been planted with these mixes.

Iowa can be an inhospitable place for an insect, but thanks in large part to the efforts of the Tallgrass Prairie Center at UNI and the Iowa DOT’s Living Roadway Trust Fund, we have a better supply of native seeds than many other states, and many miles of roadside ditches planted to prairie. Next step, find some more room for prairie plantings on farms and in cities!

NAPC field trip to Neil Smith Wildlife Refuge

This article is based on sessions presented by Laura Jackson (University of Northern Iowa), Tom Rosburg (Drake University), Russell Benedict (Central College), Justin Meissen (University of Northern Iowa), Brian Wilsey (Iowa State University), and James Cronin (USDA-NRCS).

Tallgrass Prairie – A Bird’s Eye View

by Dan Haug | Jul 13, 2023

The tallgrass prairie once covered 170 million acres, and at the 2023 North American Prairie Conference, I was reminded of that continental scale. Between assisting presenters with technology, I heard sessions about protecting orchids in the aspen-prairie parkland of Manitoba, time lapse photography along the Platte River in Nebraska, beetles in the prairies of Alabama’s “Black Belt”, restoring spring wildflowers on the Kankakee Sands of Indiana, and building out the native seed supply chain in South Dakota, as well as lots of good information from friends and colleagues in Iowa. The following are a few insights I picked up from the conference, written from a bird’s perspective.

Hi, I’m an eastern meadowlark (Sturnella magna). I grew up in the tallgrass prairie, but I’m not picky about the species composition of my grassland habitat. I was the most common bird in Iowa for a century after the prairie sod was broken, making a good living in hayfields and hedgerows. Things didn’t get really bad for me until the second half of the twentieth century, when most Iowa farms dropped alfalfa, hay and small grains in favor of corn and soybean production at ever larger scales. That conversion is also the root of the nitrate problems in Iowa’s rivers.

But the flip side of that is that grassland generalists like me don’t need a perfectly authentic prairie to make a comeback. A food system that included more pasture and forage crops to raise animals could make a big difference for wildlife, water, and the vitality of rural communities.

For more on this concept, see the University of Wisconsin’s “Grassland 2.0” project, which is reimagining a food system that provides the ecological functions of prairie. The new book “Tending Iowa’s Land” edited by Connie Mutel comes to the same conclusion: the book introduces Iowa’s four worst environmental crises with a combination of science and stories, explains their historical roots, and outlining visions for a more sustainable future. Laura Jackson’s presentation also provided inspiration for this article.

Notable Quotes from Sackett v. EPA

by Dan Haug | May 30, 2023

We’re almost halfway through our weekly video series “The Clean Water Act: 50 Years, 50 Facts” which tries to explain the consequential and complex environmental law in 90 second chunks accompanied by some rock and pop favorites from the ’70s and ’80s that I’ve adapted to include lyrics about environmental law. On May 25, a major decision by the Supreme Court (Sackett v. EPA) reshaped the legal landscape, so our episodes in June will focus on Section 404 of the Clean Water Act and the definition of “waters of the United States” to give you some context.

Clean Water Act 50 Years 50 Facts Playlist

I have mixed feelings about this area of law, informed by an entry-level job at Wisconsin DNR that involved documenting wetland losses and auditing wetland fill permits. In my opinion, decades of litigation and Congressional gridlock have resulted in some compromises which satisfy no-one: the system is confusing and expensive for developers and landowners but doesn’t do enough to protect aquatic ecosystems from “death by a thousand cuts.” If there was a constituency for “environmental federalism”, maybe I could see a path forward, but opposition to federal environmental regulation generally goes hand in hand with opposition to environmental protection at the local and state level. In Idaho, the Sackett’s neighborhood is one of many being built in wetlands along Priest Lake with the approval of a conservative county government. Here in Iowa, the legislature has recently considered bills that would have limited the ability of county governments and land trusts to purchase sensitive natural areas for parks, and limited the ability of cities to regulate development for the purposes of flood control.

But enough about my personal opinions, let’s talk legal opinions. While all nine justices agreed to overturn the Circuit Court’s decision in favor of the Sacketts, four justices thought the majority went too far in limiting the scope of the Clean Water Act. A few choice quotes from the concurring opinions in Sackett v. EPA (with legal citations removed for brevity) really help to illustrate what’s at stake.

From Justice Kavanaugh’s concurrence, joined by Justices Kagan, Sotomayor, and Jackson:

The Clean Water Act generally prohibits dumping dredged or fill material without a permit into the “waters of the United States.” The “waters of the United States” include wetlands that are “adjacent” to waters covered by the Act—for example, wetlands that are adjacent to covered rivers or lakes. The question in this case is whether the wetlands on the Sacketts’ residential property are adjacent to covered waters and therefore covered under the Act.

I agree with the Court’s reversal of the Ninth Circuit. In particular, I agree with the Court’s decision not to adopt the “significant nexus” test for determining whether a wetland is covered under the Act. And I agree with the Court’s bottom-line judgment that the wetlands on the Sacketts’ property are not covered by the Act and are therefore not subject to permitting requirements.

I write separately because I respectfully disagree with the Court’s new test for assessing when wetlands are covered by the Clean Water Act. The Court concludes that wetlands are covered by the Act only when the wetlands have a “continuous surface connection” to waters of the United States—that is, when the wetlands are “adjoining” covered waters…

Recall again how the 1977 Act came about. In 1975, the Army Corps concluded that the 1972 Act’s coverage of “waters of the United States” included “adjacent” wetlands. In 1977, Congress adopted a new permitting program for a category of “waters of the United States.” Congress allocated to the Federal Government exclusive authority to issue Clean Water Act permits for dumping dredged or fill material into certain “waters of the United States,” “including wetlands adjacent thereto.” … Congress’s 1977 decision was no accident. As this Court has previously recognized, “the scope of the Corps’ asserted jurisdiction over wetlands”—including the Corps’ decision to cover adjacent wetlands—“was specifically brought to Congress’ attention” in 1977, “and Congress rejected measures designed to curb the Corps’ jurisdiction.” …

The eight [presidential] administrations since 1977 have maintained dramatically different views of how to regulate the environment, including under the Clean Water Act. Some of those administrations promulgated very broad interpretations of adjacent wetlands. Others adopted far narrower interpretations. Yet all of those eight different administrations have recognized as a matter of law that the Clean Water Act’s coverage of adjacent wetlands means more than adjoining wetlands and also includes wetlands separated from covered waters by man-made dikes or barriers, natural river berms, beach dunes, or the like…

The difference between “adjacent” and “adjoining” in this context is not merely semantic or academic. The Court’s rewriting of “adjacent” to mean “adjoining” will matter a great deal in the real world. In particular, the Court’s new and overly narrow test may leave long-regulated and long accepted-to-be-regulable wetlands suddenly beyond the scope of the agencies’ regulatory authority, with negative consequences for waters of the United States. For example, the Mississippi River features an extensive levee system to prevent flooding. Under the Court’s “continuous surface connection” test, the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project…

The Court’s erroneous test not only will create real-world consequences for the waters of the United States, but also is sufficiently novel and vague (at least as a single standalone test) that it may create regulatory uncertainty for the Federal Government, the States, and regulated parties. … How does that test apply to the many kinds of wetlands that typically do not have a surface water connection to a covered water year-round—for example, wetlands and waters that are connected for much of the year but not in the summer when they dry up to some extent? How “temporary” do “interruptions in surface connection” have to be for wetlands to still be covered?

From Justice Kagan’s concurring opinion, joined by Justices Sotomayor and Jackson:

[M]ake no mistake: Congress wrote the statute it meant to. The Clean Water Act was a landmark piece of environmental legislation, designed to address a problem of “crisis proportions.” …

Vital to the Clean Water Act’s project is the protection of wetlands—both those contiguous to covered waters and others nearby. As this Court (again, formerly) recognized, wetlands “serve to filter and purify water draining into adjacent bodies of water, and to slow the flow of surface runoff into lakes, rivers, and streams.”

At the same time, wetlands play a crucial part in flood control (if anything, more needed now than when the statute was enacted). And wetlands perform those functions … not only when they are touching a covered water but also when they are separated from it by a natural or artificial barrier—say, a berm or dune or dike or levee….

Today’s majority, though, believes Congress went too far. … Congress, the majority scolds, has unleashed the EPA to regulate “swimming pools and puddles,” wreaking untold havoc on “a staggering array of landowners.” Surely something has to be done; and who else to do it but this Court? It must rescue property owners from Congress’s too-ambitious program of pollution control.

As the majority concedes, the statute “tells us that at least some wetlands must qualify as ‘waters of the United States.’” … It relies as well on a judicially manufactured clear-statement rule. When Congress (so says the majority) exercises power “over private property”—particularly, over “land and water use”—it must adopt “exceedingly clear language.” There is, in other words, a thumb on the scale for property owners—no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting. ….

A court may, on occasion, apply a clear-statement rule to deal with statutory vagueness or ambiguity. But a court may not rewrite Congress’s plain instructions because they go further than preferred. That is what the majority does today in finding that the Clean Water Act excludes many wetlands (clearly) “adjacent” to covered waters. …

And still more fundamentally, why ever have a thumb on the scale against the Clean Water Act’s protections? … Today’s pop-up clear-statement rule is explicable only as a reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation. It is an effort to cabin the anti-pollution actions Congress thought appropriate. … And that, too, recalls last Term, when I remarked on special canons “magically appearing as get-out-of-text-free cards” to stop the EPA from taking the measures Congress told it to. There, the majority’s non-textualism barred the EPA from addressing climate change by curbing power plant emissions in the most effective way. Here, that method prevents the EPA from keeping our country’s waters clean by regulating adjacent wetlands. The vice in both instances is the same: the Court’s appointment of itself as the national decision-maker on environmental policy….

Because that is not how I think our Government should work—more, because it is not how the Constitution thinks our Government should work—I respectfully concur in the judgment only.

What’s next for water monitoring in Iowa?

by Dan Haug | May 27, 2023

The Kopecky family helped with water testing for our spring snapshot.

As you may know, Prairie Rivers of Iowa has been working for several years on the outreach and data analysis for a local water monitoring program that includes volunteers led by Story County Conservation and lab-testing by the City of Ames. However, we’re not the only organization partnering with volunteers and local governments in Iowa to monitor streams and educate the public! In the coming year we have an opportunity to get to know one another, learn from each other, and do more in partnership. Actually, it’s already started.

In late May, Prairie Rivers organized a volunteer “snapshot” event to do same-day testing of sites throughout the Ioway Creek watershed. On that same day, Polk County Conservation tested over 100 sites as part of their spring snapshot. By coordinating our schedules, we can see how water quality compares across a broader swath of Iowa. Check out the Izaak Walton League’s nationwide Nitrate Watch map, which includes some of our results!

In mid-May, I added some extra stops to my route and was able to track down the main source of fecal bacteria affecting the lower part of West Indian Creek—it looks like the new wastewater treatment plant being built in Nevada will make a big difference for water quality. In our other creeks, the sources and solutions for E. coli are uncertain, so we’re anxious to hear what Partners of Scott County Watersheds is learning from its microbial source tracking projects in the Davenport area.

In early May, Prairie Rivers released a report analyzing the data that volunteers with Story County Conservation and the lab at the City of Ames have been collecting, including some good news! We’re learning a lot about waters in Story County, but we’re also learning how to work with data from national and statewide databases, account for the influence of streamflow, and make pretty graphs. The computer code, the skills, and the lessons learned are transferable, we just haven’t had an opportunity to apply them outside Story County… until now.

Our 2022 report included an analysis of nitrate trends in the South Skunk River.

Prairie Rivers applied for a grant from the Mosaic Foundation, which reached out to the Water Foundation to fund our project! Both these foundations have an interest in “movement infrastructure”–building the capacity of the environmental movement to do more by working together. Between now and next April, we’ll be building a network of organizations in Iowa with an interest in water monitoring, developing some tools and guidance to help us make sense of our data, and translating data into action. The planning team includes Prairie Rivers and three other Resource Conservation and Development councils (RC&Ds), Partners of Scott County Watersheds, Polk County Conservation, Iowa Environmental Council, and the Izaak Walton League of America.

While we’re excited to see the growth of volunteer initiatives like Nitrate Watch, bimonthly monitoring with semi-quantitative test strips is not a substitute for equipment that can precisely measure nitrate in a stream every 15 minutes and immediately publish the data to the internet. In April and May we learned that the latest state budget included targeted cuts to University of Iowa’s nitrate sensor network. The decision has raised more than a few eyebrows, giving the impression that some legislators would rather the public not know how polluted our lakes and streams really are, or whether conservation efforts are working as expected. Let’s keep our leaders honest and Iowans well-informed!

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