House File 2281 - Introduced HOUSE FILE 2281 BY STAED , CROKEN , AMOS JR. , LEVIN , KURTH , STECKMAN , MADISON , KRESSIG , BROWN-POWERS , GAINES , ABDUL-SAMAD , and JACOBY A BILL FOR An Act providing that an animal feeding operation constitutes a 1 per se interference with the comfortable use and enjoyment 2 of life or property of a person residing in proximity to the 3 animal feeding operation. 4 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 5 TLSB 5945YH (4) 90 da/ns

H.F. 2281 Section 1. Section 657.11, subsection 2, Code 2024, is 1 amended to read as follows: 2 2. a. An animal feeding operation, as defined in section 3 459.102 , shall not be found to be a public or private nuisance 4 under this chapter or under principles of common law, and the 5 animal feeding operation shall not be found to interfere with 6 another person’s comfortable use and enjoyment of the person’s 7 life or property under any other cause of action brought by a 8 person . 9 b. However, this section shall not apply if the person 10 bringing the cause of action proves that any of the following: 11 (1) That an injury to the person or damage to the person’s 12 property is proximately caused by either of the following: 13 a. (a) The failure to comply with a federal statute or 14 regulation or a state statute or rule which applies to the 15 animal feeding operation. 16 b. (b) Both of the following: 17 (1) (i) The animal feeding operation unreasonably and 18 for substantial periods of time interferes with the person’s 19 comfortable use and enjoyment of the person’s life or property. 20 (2) (ii) The animal feeding operation failed to use 21 existing prudent generally accepted management practices 22 reasonable for the operation. 23 (2) The animal feeding operation constitutes a per se 24 interference with the comfortable use and enjoyment of life or 25 property of the person bringing the cause of action as provided 26 in section 657.12. 27 Sec. 2. Section 657.11A, subsection 5, Code 2024, is amended 28 to read as follows: 29 5. This section shall not apply if the under any of the 30 following circumstances: 31 a. The person bringing the action proves that the public 32 or private nuisance or interference with another the person’s 33 comfortable use and enjoyment of the person’s life or property 34 under any other cause of action is proximately caused by any 35 -1- LSB 5945YH (4) 90 da/ns 1/ 4

H.F. 2281 of the following: 1 a. (1) The failure to comply with a federal statute or 2 regulation or a state statute or rule which applies to the 3 animal feeding operation. 4 b. (2) The failure to use existing prudent generally 5 utilized management practices reasonable for the animal feeding 6 operation. 7 b. The animal feeding operation constitutes a per se 8 interference with the comfortable use and enjoyment of life or 9 property of the person bringing the cause of action as provided 10 in section 657.12. 11 Sec. 3. NEW SECTION . 657.12 Animal agriculture —— promotion 12 of responsible animal feeding operations —— per se interference. 13 1. An animal feeding operation constitutes a per se 14 interference with the comfortable use and enjoyment of life 15 or property of a person residing within one mile of an animal 16 feeding operation as defined in section 459.102, if all of the 17 following apply: 18 a. It is more likely than not that the animal feeding 19 operation is the source of the odor. 20 b. An odor measurement is taken by an official of the 21 department of natural resources who has successfully completed 22 a department-sponsored odor certification course and has 23 demonstrated the ability to distinguish various odor samples 24 and concentrations. The departmental official shall use a 25 properly maintained scentometer, an odor panel, or another 26 instrument or method approved by the department. The odor 27 measurement must comply with ASTM E679-04 standards and shall 28 be taken at a location within fifty feet the person’s residence 29 closest to the animal feeding operation. 30 c. The departmental official measures seven odor 31 concentration units or higher when conducting an odor 32 measurement on five different days during normal conditions in 33 a two-month period from May 1 to September 30. 34 d. The departmental official certifies the results of the 35 -2- LSB 5945YH (4) 90 da/ns 2/ 4

H.F. 2281 odor measurement. 1 2. The department shall not conduct an odor measurement on 2 the same property more than ten times in any twenty-four-month 3 period. 4 3. All distances shall be measured from their closest 5 points. 6 4. The department shall report the finding and results of 7 any odor measurement to the person residing at the residence 8 and the owner or operator of the animal feeding operation. The 9 owner or operator may contest the certification as a contested 10 case proceeding under chapter 17A. The department shall report 11 any certification on its internet site. 12 EXPLANATION 13 The inclusion of this explanation does not constitute agreement with 14 the explanation’s substance by the members of the general assembly. 15 BACKGROUND. This bill provides for a cause of action against 16 an animal feeding operation (AFO) based on odor originating 17 from the operation. An animal feeding operation refers to a 18 place where agricultural animals (e.g., horses, cattle, swine, 19 sheep, goats, turkeys, poultry, and fish) are confined, fed, 20 and maintained for 45 days or more in any 12-month period 21 without supporting vegetation and includes confinement feeding 22 operations (Code chapter 459) and open feedlot operations 23 (Code chapter 459A). The doctrine of nuisance has been 24 developed by the common law but in Iowa is also set forth by 25 general statute (Code chapter 657). Under both sources of 26 law, a cause of action may be brought by a plaintiff based 27 on an allegation that the defendant is interfering with the 28 plaintiff’s comfortable use and enjoyment of life or property. 29 The Code chapter includes two special provisions applicable to 30 that cause of action involving an AFO. Generally, in order to 31 proceed with a cause of action in that case, the plaintiff must 32 prove that that owner or operator of the AFO either violated 33 applicable federal or state law or failed to use existing 34 prudent, generally accepted management practices reasonable for 35 -3- LSB 5945YH (4) 90 da/ns 3/ 4

H.F. 2281 the operation (Code section 657.11). In addition, compensatory 1 damages in such an action are limited to (1) the diminution 2 in the fair market value of a person’s real property; (2) the 3 adverse effect on a person’s past, present, and future health 4 condition based on objective and documented medical evidence; 5 and (3) special damages such as annoyance and the loss of the 6 comfortable use and enjoyment of real property not to exceed 7 one and one-half times the damages awarded for the diminution 8 of the fair market value of the person’s real property and the 9 person’s adverse health condition (Code section 657.11A). 10 BILL’S PROVISIONS. The bill carves out an exception from 11 those statutory protections afforded to an AFO when the cause 12 of action is based on odor. The bill provides that in such a 13 case, an AFO constitutes a per se nuisance if the plaintiff 14 proves four elements. First, the plaintiff’s residence must 15 be located within one mile of the AFO. Second, it must be more 16 likely than not that the AFO is the source of odor. Third, 17 an official from the department of natural resources (DNR) 18 must take an odor measurement using standardized equipment 19 and procedures at a specific location near the plaintiff’s 20 residence at a point closest to the AFO. Finally, the DNR 21 official must measure seven concentration units or higher of 22 the odor on five different occasions during normal seasonal 23 conditions during a 2-month period from May 1 until September 24 30. 25 The DNR cannot conduct an odor measurement at the same 26 property more than 10 times in any 24-month period. The DNR 27 must report the finding and results of any odor measurement 28 to the person residing at the residence and the owner or 29 operator of the AFO. The owner or operator may contest the 30 certification as a contested case proceeding under Code chapter 31 17A. 32 -4- LSB 5945YH (4) 90 da/ns 4/ 4