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Des Moines Water Works Will Go to Court

Two months ago, the Des Moines Water Works gave 60 days' notice to 10 drainage districts in three northern Iowa counties that it intended to go to court over high levels of nitrates entering the city’s main water supply, the Raccoon River. Tuesday, the utility’s board of trustees voted unanimously to sue, with papers likely to be filed this Friday in federal court.

In those intervening 60 days, representatives of the Water Works met with state and local officials to see if a way could be found to avoid the lawsuit and meet some of the board’s concerns, its chairman, Graham Gillette told those gathered at the meeting.

Gillette said they met with Governor Terry Branstad’s staff, the head of the Department of Natural Resources (DNR), the agriculture secretary, the attorney general, state legislators. and county officials in the three counties where the drainage districts are located — Buena Vista, Calhoun, and Sac.

“We presented our case, if you will, and allowed an opportunity to ask questions,” Gillette said. The Water Works did seek more collaboration if it involved taking steps beyond the state’s current voluntary nutrient-reduction strategy, he said.

Later, after the vote, Gillette said one thing the water works sought was “regular monitoring and testing of the waterways that allows us to pinpoint the hot spots. I think that’s a great starting point.”

Gillette said he hoped for collaboration but “unfortunately, we did not find that common ground.” 

“Frankly, they did not acknowledge the significant threats faced by those we serve in any way,” Gillette said. 

After hearing public comments, all supportive of the lawsuit, the board went into closed session then returned to an open meeting to approve $250,000 for legal expenses, authorizing Water Works CEO Bill Stowe to request more as needed.

“We’ve actually received a few small checks in the $40 to $50 range to offset our legal expenses. We’ve been contacted by others. Those who are interested in doing so will be able to make such contributions to offset our Des Moines Water Works legal expenses,” Gillette said.

After the vote, Stowe said “this case is bigger than three counties and 10 drainage districts. They just happen to be the ones that we have intensive data on and believe we can make the case that they are groundwater dischargers into the waters of the U.S. that are amenable to lawsuit under both federal and state laws.”

If the Water Works succeeds in seeking remedy from those 10, “they may take action against other districts.”

“This case is bigger than three counties and 10 drainage districts,” Stowe said.

Stowe said the water works seeks two remedies. One is to hold the drainage districts accountable for the pollutants being discharged into the Raccoon River, probably through a permitting process under the Clean Water Act. In some states, the EPA issues permits; in Iowa, it’s the DNR under EPA authority.

Stowe said the water works is also seeking monetary damages. “We believe we have significant monetary loss to our customers that we’ve already incurred.”

The waters works has spent $400,000 from early December of last year to Tuesday to remove nitrates from river water to get the level below the 10 parts per million required to meet safe drinking water standards. The removal system was turned off Tuesday, Stowe said. The water works may also be facing a cost of about $150 million to replace its aging nitrate-removal system, believed to be the largest in the U.S.

Drake University agricultural law authority Neil Hamilton told Agriculture.com Tuesday that the lawsuit will be precedent setting and potentially affects about a fourth of Iowa’s land that is tiled, when that tile runs into drainage ditches controlled by a drainage district.

The lawsuit seeks to have drainage tile treated as groundwater and a point source of pollution. It doesn’t affect nonpoint surface water or discharges from large concentrated animal feeding operations (CAFOs), which are already regulated under Clean Water Act permits. It doesn’t even affect all drainage tile.

“If you were just running your tile outlet into the Raccoon River, that’s not what’s involved here,” Hamilton said.

That won’t be much comfort to the 10 drainage districts soon to be dragged into court, however.

Colin McCullough, Sac County drainage district attorney, told Agriculture.com Tuesday that the issue of paying for the drainage district's legal defense hasn’t yet been resolved and would likely be paid by all 83 of the county’s drainage districts “because we all sink or swim together.”

“If they are successful in their litigation, it will affect every drainage district between here and New Orleans,” he said.

When asked if he thinks the litigation could last a decade, as Iowa Agriculture Secretary Bill Northey has said, he replied, “I agree with Bill.”

McCullough doesn’t believe drainage districts can be sued for damages, a legal position taken by the Iowa Supreme Court in several cases, he said.

Drainage districts are recognized in the state’s constitution and supported by state law. 

“That’s why we feel confident that what the Des Moines Water Works is up to is not founded on good law," he said.

“I think when the wheat is separated from the chaff, you’ll be able to see that the position of drainage districts is tenable, supportable, and winnable,” he said.

Stowe said he disagreed that drainage districts can’t be sued for damages, “but we’ll leave that, obviously, for the courts.”

To Iowa farmers, Stowe said that a number of farmers have done a great deal to reduce water pollution, but to those who haven’t, “we have every interest in allowing them to continue to contribute to the state and to contribute to their own self-interest but believe that accountability for the environmental impacts of those businesses has to be reconciled with downstream water users like us or those in the Mississippi Valley generally.” 

Meanwhile, voluntary efforts to clean Iowa’s water haven’t stopped. 

This week, Agriculture’s Clean Water Alliance, a group of 12 ag retailers and partners that includes the Iowa Soybean Association, announced a $713,000 demonstration project in the Elk Run Watershed in Sac, Calhoun, and Carroll counties.

ACWA has been sampling and testing water in the Raccoon River for 15 years, said Harry Ahrenholtz, the group’s chairman.

The watershed seems like an ideal location to improve water quality, he said, with an average nitrate level of 19.8 milligrams per liter (or parts per million), which is the second-highest of 64 sites. It’s 4 miles wide and 9 miles long, encompassing about 24,000 acres.

The state of Iowa is providing $354,000 in cost-sharing over three years, and the rest will come from farmers and project partners. Ahrenholtz said the project will try out both in-field and edge-of-field practices to see what’s the most effective. They’ll include no-till and reduced tillage, cover crops, bioreactors, saturated buffers, nitrification inhibitors, and drainage-water management. 

Ahrenholtz said the project has been concerned about the effect of the lawsuit.

“Any time you put a target on somebody, how willing are they to open up and participate and be transparent?” he asked. “I think we can overcome that, but, yes, that’s a concern we’ve got.”

Besides the Soybean Association, other partners in the project include the Iowa Farm Bureau Federation, Iowa Soybean Association, Iowa Corn Growers Association, Iowa Pork Producers Association, Iowa Cattlemen’s Association, Iowa Agriculture Water Alliance, Crop Production Services, Farmers Cooperative Company, West Central Cooperative, Iowa State University Extension, USDA-Natural Resource Conservation Service, Sac Soil and Water Conservation District, Carroll Soil and Water Conservation District, Calhoun Soil and Water Conservation District, and Practical Farmers of Iowa.

After the water works vote to sue, several of those groups issued a statement saying they are “unified in opposition” to the lawsuit.

“Nitrate levels in Iowa rivers are complex, fluctuating with weather and soil fertility but not significantly affected by fertilizer application rates or management. Our weather and nutrient-rich soils, which are ideal for growing plants, dominantly influence what happens in Iowa’s waters, said the group.

“Merely enacting regulation will do nothing to improve water quality. We will remain focused on empowering farmers and landowners to select and use scientifically proven practices that can have a real impact on water quality, which benefits all Iowans.”

The joint statement was issued by the Agribusiness Association of Iowa, Agriculture’s Clean Water Alliance, Iowa Agriculture Water Alliance, Iowa Cattlemen’s Association, Iowa Corn Growers Association, Iowa Farm Bureau Federation, Iowa Pork Producers Association, Iowa Poultry Association, Iowa Soybean Association, Iowa State Dairy Association, and the Iowa Turkey Federation.

The Des Moines Water Works board heard a different message from the public that attended the meeting. Kerry Bowen, a member of Iowa Citizens for Community Improvement, gave the board a box of petitions in support of the lawsuit that had been signed by 859 urban and rural Iowans.

David Hance, a retired Des Moines attorney whose parents farmed near Creston, Iowa, told Agriculture.com that the Raccoon River Watershed Association has worked with landowners to clean the watershed on a voluntary basis.

“We’ve been doing this for 15 years, and this is not something new for the watershed. It has not worked,” said Hance, who supports the lawsuit.  

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