Digging Into the Des Moines Water Works Lawsuit

In a decision that could lead to a precedent in an area of ag law in which there is none like it today, the board of trustees for Des Moines Water Works, the water utility for the largest city in Iowa, voted Thursday to pursue a lawsuit against the boards of supervisors for 3 northwest Iowa counties in the watershed from which Water Works derives much of the city's water supply.

The suit -- to which officials have yet to assign a dollar amount, but say will be in the "hundreds of thousands" -- alleges the board of supervisors in Sac, Buena Vista and Calhoun counties are the parties responsible for enforcing the regulation of water runoff based on the Clean Water Act and Iowa Code. Water Works officials say the waterways targeted -- some of which showed almost 4 times the nitrate concentration allowed by the Clean Water Act -- comprise "point sources" for water, putting them in the same category as factories and other facilities that use and discharge large amounts of water flowing into waterways that wind up used by municipalities. And, those waterways are alleged to be managed by drainage districts that the suit alleges fall under the authority of county boards of supervisors.

The action, says Des Moines Water Works CEO Bill Stowe, isn't one he wants to take, but it's a response to circumstances; the city is picking up a larger tab for the removal of nitrates that can be traced to the Raccoon River, the main waterway fed by drainage districts in the 3 counties targeted by the lawsuit. Despite 2 years of voluntary action by farmers, nitrate levels remain high, and that shows a lack of enforcement of regulations, Stowe says.

"Drainage districts are a source of high nitrate concentration in our water supply and the Sac County Board of Supervisors have failed to take any meaningful action to protect downstream users from unsafe levels of nitrate introduced into the Raccoon River," Stowe says. "Des Moines Water Works is taking this decisive action to underscore that the degraded condition of our state’s source waters is a very real problem, not just to Des Moines Water Works, but to the 500,000 customers we serve, as well as to Iowans generally who have a right of use and enjoyment of the water commonwealth of our State. The Iowa Nutrient Reduction Strategy is a failure. Since its announcement, we have suffered through record nitrate concentrations in both the summer of 2013 and winter of 2014. It is simply not a credible approach to protect the public health of Iowans who rely on safe drinking water every day. We can no longer rely on voluntarism, rhetoric, and speculation to protect the waters of our state."

But, there are major questions in the Water Works suit, legal experts say, making the suit a "difficult legal posture." First, there's the qualification of the targeted areas as "point source" pollution. That's long been up to question when it comes to runoff water, especially when land is tiled.

Secondly -- and a point that could make the Water Works suit a heavy lift for the prosecution -- the Water Works suit targets a set of county-level administrators that the defense could justifiably argue does not hold jurisdiction over the water districts to the extent to which they should be liable for maintenance of nitrate removal via drainage districts, of which there are 10 in the 3-county area targeted by the lawsuit. Drainage districts in Iowa are "unique statutory creations," says Iowa State University Center for Agricultural Law and Taxation staff attorney and ag law specialist Kristine Tidgren. They were created for an altogether different purpose, and Water Works' case depends on whether their jurisdiction includes the water in question.

"Iowa's law is unique in the nation. You can't point to other states, because there's no precedent. The drainage district is a unique statutory creation. The reason it was created was to make drainage conducive for land to be productive for farming," she tells Agriculture.com "It is a really interesting posture. I understand the frustration with the powers that have the authority who felt like they hadn't gotten action themselves from the groups that have the control over this. But going after the county supervisors is tough.

"It would be an attempt I guess to have a higher-level organization responsible for a permit when there's really no provsiion in Iowa law that we've had that really sets that up as a standard that waould necessarily be enforced by a court," she adds.

The 3 counties named in the suit are rich in crops and livestock, and there are nitrates associated with their production. But, not everyone in the 3 counties is directly involved in their production, nor does every farmer abide by the same rules and standards for environment-friendly output. In other words, some farmers likely don't contribute as much to nitrate runoff as others. But, the type of suit filed Thursday doesn't make distinctions like those, making it difficult to prove, Tidgren says.

"The science isn't agreed upon. There's a lot of debate on what causes these nitrates. What percentage of the burden falls on the farmer? Especially this time of the year, it's odd that a large percentage of it would be caused by farmers," she says. "Most farmers will be rooting against this lawsuit. It would seem there would have to be a more efficient and statewide process that needs to be followed to solve this problem. Going after 3 counties' supervisors is a tough one to address. Des Moines is the municipality facing this now, but it's really a statewide issue. And, to have some standards in place with science, it could be an interesting lawsuit if it moves past the initial stages."

Doing the latter will depend on whether the case remains in litigation, or if it's dismissed by the court, Tidgren says. If it's not, look for resolution to take years, she adds.

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