Des Moines Water Works trustees vote to sue three Iowa counties

Des Moines Water Works trustees vote to sue three Iowa counties

Water utility board says it will file a federal lawsuit over nitrates in water supply.

The Des Moines Water Works is proceeding with its threat and will file a federal suit against three counties in northwest Iowa over water quality concerns. The vote by the Water Works board of trustees on March 10 follows a 60-day warning that brought little promise for solving water quality concerns at the Water Works. The board voted unanimously at a special meeting Tuesday to file a lawsuit against drainage districts in Buena Vista, Calhoun and Sac counties.

FARMERS FRUSTRATED: Ag groups say they are making progress improving water quality by using practices outlined in the Iowa Nutrient Reduction Strategy. Des Moines Water Works officials dismiss the nutrient reduction strategy as ineffective, because it is a voluntary plan that has no deadlines for improvement.

The chairman of the board of trustees, Graham Gillette, said the utility on January 8 sent a letter of "intent to sue" to the county board of supervisors in those three counties within 60 days. He said the Water Works was unable to make progress with local and state leaders, including Iowa Gov. Terry Branstad and Iowa Agriculture Secretary Bill Northey. "No one responded in any substantive way to the claims we have made in the intent to sue," said Gillette. "They did not acknowledge the significant threats faced by our Water Works customers."

Water Works officials say voluntary approach isn't working
At the board meeting on Tuesday, Des Moines Water Works officials and some residents who testified were critical of the state's voluntary nutrient reduction strategy for farmers. They said the nutrient reduction strategy is insufficient for protecting Iowa waterways. The law exempts agricultural runoff.

The lawsuit says drainage tile in fields channel nitrate and other crop nutrients from fields to creeks and streams and ultimately to the Gulf of Mexico. Water Works officials say drainage districts should be regulated with special permits under the federal Clean Water Act. Northey, who is on an overseas trade mission, couldn't be reached for comment. Dustin Vande Hoef, communications director for the Iowa Department of Agriculture, says Des Moines Water Works officials seemed intent on pursuing a lawsuit in discussions following the January 9 issuing of the notice of intent to sue. Vande Hoef adds, "I don't know what we could do in 60 days that would have changed their mind."

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Northey, Branstad and other ag leaders have maintained that the best way to improve water quality is through widespread adoption of the Iowa Nutrient Reduction Strategy. The voluntary strategy, approved in 2013, has a goal of reducing by 45% the amount of nitrogen and phosphorous entering Iowa's waterways and contributing to the dead zone in the Gulf of Mexico.

Farmers are frustrated by this water quality lawsuit
Farmers who have been no-tilling and using other conservation and nitrogen management practices for decades can't understand why Des Moines Water Works officials are intent on suing the three rural Iowa counties. "We're not deliberately dumping our nitrogen into the river systems," says Calhoun county farmer Dwight Dial. "We're doing everything we can to keep nutrients in the fields for our crops to use. Lawsuits and regulations aren't going to control the weather."

Tom Oswald, president of the Iowa Soybean Association, says farmers are frustrated with the utility's announcement it will proceed with plans to sue. "I've talked to farmers in those counties and they feel attacked," says Oswald. He got a clipping in the mail of an editorial he wrote that called for cooperation on water quality efforts, and it was marked up with profanities and slurs. "I personally find this lawsuit approach to be hugely divisive. It's hard for farmers who are working on the water quality issue, trying to improve and protect water quality. They've hardly had a chance to get started."

The Water Works voted to proceed to sue the county boards of supervisors in the three northwest Iowa counties, as these county officials oversee the area's 10 drainage districts. Kristine Tidgren, staff attorney for the Center for Agricultural Law and Taxation at Iowa State University told Wallaces Farmer she thinks the lawsuit will primarily allege that the drainage districts are discharging pollutants into waters of the United States without a permit, in violation of the federal Clean Water Act.

Lawsuit is expect to face several major legal obstacles
"This lawsuit will no doubt face several major legal obstacles, including the propriety of suing the county boards of supervisors and the fact that agricultural storm water discharges are not point source discharges under the Clean Water Act," says Tidgren.

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You can read the analysis by Tidgren and her colleague, ISU ag law professor Roger McEowen, on the CALT website by clicking here. "We will update our analysis on our CALT website when the complaint is actually filed, hopefully in a few days, so we can see what's in the final complaint," she said on Tuesday, after the Water Works board voted to go ahead and file the lawsuit.

Iowa farm groups unified in opposition to Water Works lawsuit
A joint statement was released Tuesday by these Iowa agriculture groups: 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 Iowa Turkey Federation.

Statement: "The announcement by Des Moines Water Works to pursue legal action against drainage districts in three Iowa counties reveals a startling disconnect from the scope and complexity of nonpoint water issues. It risks slowing the momentum of the nationally recognized Iowa Nutrient Reduction Strategy implemented with bipartisan legislative support in 2013.

"Nitrate levels in Iowa streams and 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. 

"Merely enacting regulation will do nothing to improve water quality. We will remain focused on empowering farmers and land owners to select and use scientifically proven practices that can have a real impact on water quality, which benefits all Iowans. Today's decision undermines the strong relationship that once existed between Iowa's largest water utility and farmers upstream. However, the litigation will not distract us from collaborative efforts that bring continual improvements in water quality." 

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