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Water Lawsuit Could Last Years

When Iowa Secretary of Agriculture Bill Northey joined about 80 growers and staffers at the Crop Production Services meeting in Wall Lake, Iowa, Tuesday, he was at ground zero of what he called “this little lawsuit thing that’s out there” — the Des Moines Water Works notification that it may go to court against 10 drainage districts in Sac County, where Wall Lake is located, and Calhoun and Buena Vista counties.

The lawsuit, if it’s filed, would allege that the drainage districts are a point source of nitrate pollution for the Raccoon River, the main source of drinking water in Iowa’s capital city. Unlike runoff from farm fields, point sources require permits from EPA to discharge pollutants. 

One of the farmers who came to hear Northey said the worst thing about the potential lawsuit is the uncertainty about how it affects him.

Northey couldn’t really clear that up Tuesday, since the lawsuit hasn’t even been filed. It may not be filed even at the end of a 60-day notice of intent to sue that the Water Works directors approved on January 8. 

Northey said lawsuits and appeals could drag on for a decade, and if the Water Works succeeds in forcing regulation of drainage districts, writing rules could take another five years.

Northey said a judge is unlikely to require drainage districts to create a permitting process for every tile within the district and that some regulatory agency might be involved, the EPA or Iowa’s Department of Natural Resources. “There’s probably a series of permutations to this,” he said of the legal battle.  Northey also said he doesn’t think the Water Works lawsuit will seek damages from the drainage districts and that state law likely protects them from that kind of liability anyway.

The looming legal battle has attracted the attention of the nation, Northey said. 

“Everybody realizes it’s not about 10 drainage districts. It’s about the world of agriculture and everyplace else,” he said. Depending on the outcome of the Water Works’ litigation, “In a matter of milliseconds, there’d be lawsuits filed everyplace.”

Northey favors the state’s voluntary nutrient-management program, which allows farmers to specialize in how they reduce nutrients coming from each farm. He considers that more effective.  “A regulatory process would never get that done. It would be a mess,” he said.

Technology will ultimately work better than regulation, with new tools that will help farmers more accurately apply late-season nitrogen.

“It’s going to be the marketplace that creates it, and it’s going to be us deciding what works on our farms,” he said. 

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