LAWSUIT FALLOUT: The Des Moines Water Works is now run as an independent utility, but its board of directors could be replaced with a regional board to give outlying areas and neighboring counties control, if proposed legislation becomes state law.

Bill would dismantle Des Moines Water Works

Legislation advances to replace Des Moines utility’s board of directors with a regional water authority.

There’s a new twist involving the Des Moines Water Works lawsuit against drainage districts in three northwest Iowa counties. A bill introduced in the Iowa Legislature last week, if it becomes law, would dismantle the Des Moines Water Works and replace it with a regional water authority under the control of local municipalities in central Iowa.

House File 316 would do away with the current five-member board of directors appointed by the mayor of Des Moines and replace it with a regional board appointed by Des Moines and its suburban neighbors. The new water authority would shift control of the utility’s $250 million in assets to the new board.

The bill’s sponsor is a farmer, state Rep. Jarad Klein, R-Keota, whose district is about 100 miles southeast of Des Moines. He says the Des Moines Water Works suburban customers aren’t receiving adequate representation from the current board. About 60% of the water flowing through the Water Works facilities serves customers in suburban communities. And right now, none of those communities has any say in who is appointed to the utility’s board of directors.

An attempt to stop the lawsuit?
Bill Stowe, CEO and general manager of the Water Works, says this bill is an attempt by state government to intrude on local government. “This proposed legislation is clearly retribution for our lawsuit,” Stowe says. “This is a ‘get-even’ bill that is trying to blow up our board of trustees and change who makes decisions about our litigation.”

The legislation as now proposed would eliminate the Des Moines Water Works board and move the utility and its assets under control of the Des Moines City Council, thus opening the door for formation of a regional water authority.

Stowe says, “If anything, this legislation should remind people that we are not a part of the city of Des Moines; we are our own five-member board. We think the Des Moines City Council is far weaker in their resolution to deal with water quality issues and more inclined to compromise than our current board. So we think effectively, this legislation, if passed by the Iowa Legislature and signed into law, would kill our lawsuit.”

The Water Works trial is scheduled to take place in federal court in June. Last year the utility sued drainage districts (and indirectly farmers) in three counties (Sac, Calhoun and Buena Vista) in northwest Iowa. These districts are upstream of the Water Works. They drain into the Raccoon River, a primary source of water for Des Moines Water Works and its 500,000 customers in central Iowa.

Lawsuit has national implications
The lawsuit is about excess nitrates from agricultural production. The case could redefine federal clean water regulations for farmers nationwide, unless a shift in local control weakens the Water Works’ argument. The suit claims underground drainage tile in fields in the three counties are channeling high levels of nitrates into the Raccoon River. It seeks to have tile drainage regulated by the federal Clean Water Act.

The Des Moines utility spent about $1.3 million last year operating one of the world’s largest nitrate removal facilities. Water Works officials say they will need to replace and upgrade their aging nitrate removal operation at a cost of at least $80 million in the near future. The lawsuit has prompted statewide discussion about how to address Iowa’s water quality problems, but it has also divided urban and rural residents on how to pay for the needed changes.

“Currently, the Water Works is being overseen by a group of individuals appointed by the mayor who have no accountability to anyone else once they are appointed,” says Christine Hensley, a member of the Des Moines City Council. She is also a board member of the recently formed Iowa Partnership for Clean Water, which focuses on water quality education, collaboration and conservation methods — in contrast with the Water Works’ strategy of using a lawsuit and legal methods to try to achieve improvement in Iowa’s water quality.

Farm Bureau denies it authored this bill
Some opponents believe the bill to do away with the Des Moines Water Works and establish a regional board stems from a false mandate. Opponents of the legislation introduced by Klein are accusing farm lobbyists of pushing the effort. Groups like the Iowa Farm Bureau deny any involvement. Stowe says Iowa Farm Bureau has worked aggressively to quash the utility’s challenge regarding agriculture’s responsibility for water pollution, primarily through the Iowa Partnership for Clean Water. “He [Klein] is just a surrogate for Iowa Farm Bureau,” says Stowe.

Farm Bureau had no role in the bill’s introduction, says Klein. “A majority of the lawmakers who represent the surrounding communities served by Des Moines Water Works have encouraged me to continue on this path and look at forming a regional water authority, to mediate and bring parties together to figure out what is the best solution. This is a bipartisan group of Iowa legislators who say a conversation is long overdue. And they seek flexibility moving forward.”

Klein adds, “I have a timeline built into this bill, so if the effort to form a regional water authority is falling apart a year from now, and a couple of outlying communities come back and tell me it isn’t working, and they say we need to revisit this plan, we can go back and make changes and modifications.”

As the bill moves through the Iowa Legislature during the 2017 session, Stowe and his Water Works board members have vowed to dig in for the long term. He says: “Kick us into the high weeds, if you think you can, but the message of dirty water in this state and the role that agriculture needs to take in cleaning it up is not going to go away.”

Bill’s passage could end the lawsuit
A legal expert says the bill’s passage could indeed result in the demise of the lawsuit. If Des Moines Water Works disappears, “as a matter of law, then the named plaintiff in the case also disappears, like someone dying,” says Neil Hamilton, professor at the Ag Law Center at Drake University in Des Moines. “The lawsuit could become moot,” as the bill could shut off any money to support the suit.

That’s a possibility, says Stowe. The new board “could cut off funding or dismiss the lawsuit, each of which would be in their authority. It could end the lawsuit abruptly.” Stowe plans to meet with the current Water Works board soon to discuss their options to fight the bill. The Des Moines Water Works board agreed when the lawsuit began in 2015 to spend up to $1.35 million to pursue the suit through the trial, now slated for June. It has spent just under $900,000 so far.

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