Des Moines Water Works still pushing hard in nitrate lawsuit

Des Moines Water Works still pushing hard in nitrate lawsuit

Utility files a legal brief objecting to drainage districts claim of no responsibility for nitrate in water.

Officials of the Des Moines Water Works announced last Friday that the utility has filed a resistance brief in its clean water lawsuit against drainage districts in three counties in northwest Iowa. The Water Works is resisting an attempt by the defendants (boards of supervisors in Calhoun, Buena Vista and Sac counties) to get a federal court to dismiss two of Des Moines Water Works’ claims in the lawsuit. The Water Works is requesting that the federal court deny the defendants’ motion and that the case proceed to trial.

WATER QUALITY LAWSUIT: Des Moines Water Works officials want farm drainage districts to be required to get pollution discharge permits under the federal Clean Water Act to help control nitrate and phosphorus from leaching into rivers and streams.

According to Kristine Tidgren, staff attorney for the Center for Agricultural Law and Taxation at Iowa State University, here’s what this latest legal development in the water quality lawsuit means: Des Moines Waterworks officials have decided to fight the legal motion from the boards of supervisors in the three counties (Buena Vista, Calhoun and Sac) to dismiss part of the utility’s lawsuit against the boards of supervisors. The Water Works claims that high nitrate levels from farm fields in northwest Iowa are entering the Raccoon River and impacting the Des Moines Water Works source of drinking water.

Lawsuit claims drainage tiles are to blame for nitrate problem
The Des Moines utility used a report from these three counties to support its argument that underground drainage tiles act as a conduit that funnel excessive nitrates into the Raccoon River, a source of drinking water for 500,000 metro area residents. The utility says the counties’ “own expert calculates that the drainage districts collectively contributed up to 0.819 milligrams per liter to the nitrate concentration at Des Moines Water Works of 11.85 milligrams per liter” or “7% of the total mass of nitrate at the Water Works’ intake on the Raccoon River on just one day” (July 4, 2014).

“The drainage districts, in conjunction with all other tile drainage that leads to the Raccoon River, are responsible for the nitrate concentrations that Des Moines Water Works experiences,” say the utility’s attorneys.

Water Works lawsuit wants federal oversight of farmers
The Water Works sued the counties’ supervisors and 10 drainage districts in 2015, seeking federal oversight of drainage districts and, indirectly, farmers who are using fertilization and other management practices on the land.

Last month, the three counties filed a motion asking the court to dismiss the lawsuit’s claims regarding the drainage districts’ contribution to nitrate levels at the Des Moines water plant. The counties say the contribution is negligible, based on expert reports.

The defendant’s motion for summary judgment filed in late March asserted that the drainage districts have no responsibility for pollution, do not contribute to Des Moines Water Works’ degraded source water or to the growing hypoxic zone in the Gulf of Mexico. Their motion said Des Moines Water Works “cannot identify even once” when all the counties and drainage districts combined have “contributed even 1/100th of the level necessary” for the utility to run its nitrate removal equipment.

Stowe says drainage districts should be required to get permits
“We continue to hear the same – industrial agriculture has no responsibility for Iowa’s continuing surface water quality disaster and Des Moines Water Works should ‘go away’,” says Bill Stowe, CEO and general manager of Des Moines Water Works.

On May 5 in response to the defendants’ motion, the Water Works filed a brief and over 2,000 pages of evidence in support of its legal argument that the defendant drainage districts are subject to Clean Water Act permitting. In its brief, the Water Works emphasized the public significance of the litigation and the fact that no federal court in the United States has ever considered these legal issues. The Water Works asserts that the text of the Clean Water Act and Congressional and regulatory history show that the defendants are required to obtain permits for the discharge of nitrate downstream. 

Des Moines Water Works filed the complaint in Federal District Court, Northern District of Iowa, March 16, 2015, against the Boards of Supervisors of Buena Vista County, Calhoun County and Sac County, in their capacities as trustees of 10 drainage districts, for the discharge of nitrate pollutants into the Raccoon River, a source of drinking water for 500,000 central Iowa customers. Water monitoring by Des Moines Water Works at 72 sample sites in Buena Vista, Calhoun and Sac counties has shown nitrate levels as high as 39.2 milligrams per liter in groundwater discharged by drainages districts, four times the federally required Safe Drinking Water regulatory limit of 10 mg/L. 

Judge delays Water Works vs. Iowa agriculture lawsuit trial
The federal case was scheduled to go to trial in August of this year; however, a hearing with the Federal District Court on May 11 will determine the schedule of the case moving forward. The defendants also filed a motion for summary judgment on the remaining eight state and constitutional law claims; however, the federal judge suspended his consideration on that motion until the Iowa Supreme Court hears the four certified questions in its next term. 

“Des Moines Water Works’ mission is to provide safe, abundant and affordable water to our customers. Des Moines Water Works is fighting for the protection of customers’ right to safe drinking water,” says Stowe. “Through this legal process, Des Moines Water Works hopes to reduce public health risks and unsustainable economic costs passed onto drinking water users by protecting our rivers, lakes and streams.”

Laws require that point sources discharging into rivers must have permits under the National Pollutant Discharge Elimination System (NPDES). “Because drainage districts transport nitrate pollution through a system of channels and pipes, they should be recognized and held accountable like every other point source contributor,” says Stowe. “NPDES permits have been successful nationwide in controlling pollution caused by industrial waste and sanitary sewer discharge.”

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