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Looking for Ways Out of Water Lawsuit

  Des Moines Water Works' nitrate removal tanks  

A lawsuit filed by Des Moines Water Works against northern Iowa drainage districts over high nitrates in river water is just over a year from going to trial in a federal court in Sioux City. Discussions that some hope will lead to an out-of-court settlement are starting — slowly.

Any non-Iowa farmer passing through the state this summer might get a very different impression of the rural-urban divide that worries a lot of producers around the country.

A war of words over the lawsuit continues. Just last week Iowa’s governor bashed Water Works leaders for their continued criticism of agriculture’s contribution to high levels of nitrates in Des Moines’ main water source, the Raccoon River. And the local utility is preparing ratepayers for a 10% boost in their water bills after spending more than $1.5 million to remove nitrates with an aging system that may have to be replaced soon. Over the weekend, letters to the Des Moines Register urban readers were already complaining about Iowa Governor Terry Branstad for criticizing the Water Works lawsuit.

Behind the scenes, interested parties are trying to find some common ground, which no one describes yet as any kind of formal negotiation of the lawsuit. It seems to be aimed instead at trying to figure out how to pay for what will be an expensive undertaking in both cities and on farms. The Iowa Nutrient Reduction Strategy, a voluntary statewide effort aimed at reducing nutrients flowing into the Gulf of Mexico, will cost an estimated $1.5 billion over 20 years for 130 urban wastewater treatment plants and between $1.2 billion and $4 billion for practices used by farmers.

“That’s a public policy process, and clearly we don’t have a silver bullet for that one,” said Bill Stowe, CEO of the Des Moines Water Works.

“If we expect people to do it on their own dime, we’re going to end up disappointed by the aggregate resources,” Stowe told Agriculture.com in a recent interview.

The Greater Des Moines Partnership, similar to a chamber of commerce for the state’s capital city area, has begun informal discussions to look for ways to unite urban and rural interests in improving Iowa’s water quality, said Stowe. 

“We’re interested in a negotiated solution, for a lot of reasons, not the least of which is a legal process — as the other side has reminded us on many occasions — is years to a solution process,” Stowe said.  "That’s our problem with the nutrient reduction strategy. It is a years-to-improvement process, so we can no longer cling to the idea that a multiyear, decades-long process is a good one, and that includes the legal process, so negotiating something that addresses our interest is very attractive.”

Jay Byers, CEO of the partnership, confirmed that the organization is putting together working groups, including those involving agriculture and environmental groups, to look for solutions, but it’s not a formal negotiation process between the Water Works and the three northern Iowa counties whose drainage districts are targeted by the lawsuit, which seeks to have those districts treated as point-source polluters that would require environmental permits under the federal Clean Water Act.

"What we're doing here, it's a much bigger initiative than the lawsuit,” Byers told Agriculture.com. "The issue of water has been an important issue for the partnership for many years."

It began with looking at ways to reduce flooding, which hit the city’s downtown area hard in 1993, when the Raccoon and Des Moines rivers flooded enough to overtop Water Works levees, shutting down water to the city for 11 days. A higher levee protected the plant during a similar flood in 2008. 

"Iowans have a history of coming together and finding common ground and finding solutions,” Byers said.

Stowe isn’t quite ready to join hands with all of the members of the Partnership, sing Kumbaya, and drop the lawsuit yet, however. 

“We’re not going to be part of further media campaigns to promote the story, the fiction, that water quality in Iowa is the best that it’s been in 20 years,” Stowe said. “Or that we’re moving toward environmental improvement through the nutrient-reduction strategy. People who want to have that kind of tent revival, they’re going to do it without us in attendance.” 

Stowe pointed out that his plant had to remove excess nitrates from the Raccoon River from last December through early July, a record 148 days. 

Stowe acknowledged that many farmers are doing innovative things in the area of conservation that help protect water quality, but overall, it hasn’t been enough, he said.

 “The reality is there’s been no progress made toward improving nutrient loads that are going into our rivers in some time, and it’s getting worse – it’s actually
degrading,” he said. ”It’s the wrong direction. We have to reverse that,
or it’s a public health issue."

Roger Wolf, director of
environmental programs and services for the Iowa Soybean Association,
has spent a good chunk of his career working on reversing that trend,
and he has pointed out that, depending on what time frame you choose,
there is evidence that water quality in the Raccoon River has improved.

Still, Wolf doesn’t defend the status quo, either, when he speaks to farmers and other groups about the water quality and Iowa’s Nutrient Reduction Strategy.

"Part of my message is that we all have to do something,” Wolf told Agriculture.com. “We all have to recognize the importance of participating in this and the role of infrastructure for our wastewater systems, for our drinking water systems, and the investments that are going to be needed in the agriculture sector. And we need agreements that say we're serious about this and what can we accomplish with the money that we have and how can we
share in this. That's really what I'm trying to advance – kind of an
all-in strategy."

One piece of the puzzle for financing
cleaner water that’s supported by the Soybean Association and the
partnership is the state’s Natural Resources and Outdoor Recreation
Trust Fund. Iowa voters approved the fund by 63% in 2010, but the state’s legislature still hasn’t approved a 3/8-cent sales tax increase that would fund the trust, which would support Iowa parks and outdoor recreation as well as more conservation practices on farms.

Wolf said the fund could provide about $100 million a year for conservation. That’s more than 10 times the $9.6 million appropriated by the legislature last year for conservation and water quality programs.

Byers told Agriculture.com that his group hopes to have goals to present to the legislature before it convenes next January.

When Wolf was asked if he believes the legislature will support the fund this year, he wasn’t certain.

"It's hard to say. I think there is demonstrated bipartisan support in the last legislative session, but given all the issues, all of these issues compete. They passed a gas tax last session to deal with our roads and bridges, also an important infrastructure that we have to maintain. Education is a big deal, and we all read about the issues there. [Democrats and Republicans spent months working out a compromise increase in funding for schools that Branstad vetoed.] Recognizing that the legislature's got an important job to do, and the governor. We'll see. It's hard to predict."

Minnesota already has a similar fund, "so those farmers up there have a significant advantage because of the public investment in soil and water,” Wolf said.  Missouri has a similar tax, generating about $30 million a year for the past 20 years.

An organization that supports the trust fund, Iowa’s Water & Land Legacy (IWILL), is also working to get the trust fund up and running. It cites a poll taken last year showing that 81% of Iowans now think creating the trust fund was a good idea, and 66% want the legislature to fund it with a sales tax hike.

The trust fund isn’t the only way to move ahead on water quality. Wolf cites many projects already underway and says some funding is coming from USDA’s new Regional Conservation Partnership Program. And some urban wastewater treatment plants may be interested in paying for rural conservation practices that could offset some of the nutrients the treatment plants put in the state’s waterways.

"I call it offset credits,” Wolf said. “It's not a pure trading program, but it's basically giving them [treatment plants] the ability to have an approved permit that would allow investments in the watershed, to achieve the reductions."

For farmers, the program would be similar to existing state and USDA cost-sharing for conservation practices, he said.

Another approach would be a state income tax credit for edge-of-field practices such as bioreactors and saturated buffers that remove any nitrates in drainage tile water that fertilizer management and cover crops might miss.

"There are a lot of issues here,” Wolf said. “From the Water Works' standpoint, you have aging infrastructure, you've got a growing population base, you have source water that struggles to meet the standards. It comes at a cost. Ultimately for the utility, the revenue source they get is from ratepayers. How do you get a rate increase? From an agriculture standpoint, how do we articulate the scope and scale of the challenge, when farmers are doing a better job than they did 20 years ago on their soil and water, and knowing that some of these edge-of-field practices come at a direct cost? How do we get in the same space?"

For his part, Stowe seems willing to carry on conversations with local business and agribusiness leaders. Many of the key players support the Greater Des Moines Partnership — DuPont Pioneer, the Des Moines Water Works, and commodity groups, including the Soybean Association. [A spokesperson for DuPont Pioneer told Agriculture.com that the company hasn’t held meetings with the Water Works.]

Stowe said he’s been pleased with meetings he’s had so far.

“What I find positive there is that the agribusiness community, even at the highest levels in industrial agriculture, really sees sustainable agriculture as being a pretty important process moving forward. So we’re getting an audience there that is a positive development. So I think in the next year there are going to be some positive discussions that may get us to a negotiated agreement but a year is not a particularly long period of time to be able to work that through.” 

Stowe said he welcomes a forum or mediating by the Partnership or other organizations, perhaps the University of Iowa or Iowa State University.

If it fails, though, Stowe believes recent court rulings about other cases involving water quality in the Gulf Coast and Chesapeake Bay “lead us to believe that our position is becoming the norm, rather than the exception. We think The law enforcing the Clean Water Act is being shored up nationally, and we’re going to be part of that if we reach a situation where we will be litigating out our issues. The context nationally for us is positive.”  

Wolf and others, meanwhile, are looking beyond the lawsuit at practical ways to clean the state’s waters.

"If it so happens that Des Moines Water Works decides to dismiss what they're doing and pull their suit away, that would be a great outcome,” he said. “Either way, we need to be talking about solutions. Here at the Iowa Soybean Association, that's the business that we're in." 

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