On Tuesday, March 10 the Des Moines Water Works board of trustees voted unanimously to file an unprecedented lawsuit that will challenge whether drainage districts are nonpoint sources of pollution under the federal Clean Water Act. Depending on how far along it gets and what the courts decide, the suit could affect drainage districts across the state and nationwide.
Two months ago, the board gave 60 days' notice to county boards of supervisors in three counties in northwest Iowa: Calhoun, Sac and Buena Vista. The "letter of intent" to sue said the Water Works planned to go to court over high levels of nitrates entering the Raccoon River. The river supplies water for the city of Des Moines and surrounding area in central Iowa -- about 500,000 customers in total.
During the 60 days, Water Works representatives met with state and local officials to see if a way could be found to avoid the lawsuit. Graham Gillette, chair of the Water Works board, says they met with Gov. Terry Branstad's staff, Iowa Ag Secretary Bill Northey, Iowa Department of Natural Resources chief Chuck Gipp, Iowa Attorney General Tom Miller, state legislators and county officials in the three targeted northwest Iowa counties where 10 drainage districts are located.
Why the Water Works board decided to go to court
Gillette says, "When we met with them we presented our case, we gave them an opportunity to ask questions." The board and Water Works CEO Bill Stowe did seek to collaborate with state, county and drainage district officials, says Gillette, if that collaboration would involve taking steps beyond the state's current Iowa Nutrient Reduction Strategy.
The nutrient reduction strategy is a voluntary program providing information and recommendations for practices farmers can put in place on the land to improve and protect water quality. The Water Works board wants a regulatory approach, not voluntary. And they want a timeline set, dates required for accomplishing the strategy's goals for nutrient reduction in streams and rivers.
Another thing the Water Works wants is "regular monitoring and testing of the waterways to allow us to pinpoint the hotspots," Gillette says. He says he hoped for collaboration but "unfortunately we did not find that common ground."
Approval to spend up to $250,000 for legal expenses
"From my perspective nothing has happened in the last 60 days to convince us that the source waters we rely on are better protected today," said Stowe, at last Tuesday's meeting. Stowe regularly calls the Iowa Nutrient Reduction Strategy a failure.
About 50 people (citizens, agribusiness, commodity group representatives, environmental activists and media) attended the special hearing at the Water Works headquarters in Des Moines. The trustees made the historic decision after about 20 people spoke in favor of the lawsuit during an hour-long public comment period.
After hearing the public comments, all supportive of the lawsuit, the board went into closed session, and then returned to an open meeting. The trustees authorized Stowe to spend up to $250,000 on legal expenses, and to request more money if needed. Water Works customers will pay the bill, although donations are being accepted. Gillette says the Water Works is already receiving some donations to support the lawsuit.
Farm groups disappointed with Water Works decision
Iowa Soybean Association CEO Kirk Leeds is disappointed in the action taken by the Water Works, saying cooperation will improve water quality much more than litigation. "The Iowa approach is to work together," says Leeds. "The time and energy all parties will spend to raise money to deal with the lawsuit could be put to better use. Still, farmers need to stay focused and continue to put conservation practices on the land, making decisions based on sound science and data that will improve water quality."
After the vote, Gillette said farmers should support the lawsuit because it levels the playing field and "we all benefit from a permit system and reasonable regulation." He says Iowa officials have dismissed the Water Works board's calls for regulation, the concerns about water quality and the cost to provide safe water to the public. "Our Water Works board has a responsibility to protect the health and financial interests of our customers," says Gillette.
The Water Works nitrate removal facility was finally shut down March 10 as nitrate levels in the river water dropped to allowable levels. The nitrate removal equipment had been operating since December 4 at an estimated cost of $4,000 to $7,000 per day. Water Works officials also claim high nitrate levels may force them to spend $80 million or more on a new system, as the current nitrate removal system is 25 years old and is wearing out.
Regulations and lawsuits can't control the weather
Water Works trustee Leslie Gearhart put the blame for high nitrates squarely on farmers. "It's hard to believe 88,000 farmers in Iowa have the right to foul the water for 3 million people in this state," she said. Leeds isn't buying it. He says farmers will continue to work for a lasting legacy of strong soil, safe water and more productivity.
Embracing and using conservation practices outlined in the voluntary Iowa Nutrient Reduction Strategy is the best way to improve water quality, not a regulatory scheme proposed by the Des Moines Water Works, says Northey. Cover crops, no-till, bioreactors, saturated buffers, grassed waterways etc., are being put to work on the land by more and more farmers each year. The Iowa Soybean Association has monitored water samples in the Raccoon River at various locations since 1999 and nitrate levels have declined over that period of years as farmers have put more conservation practices and better nutrient management in place.
Farmers and agronomists point to unusual weather the past couple years as the cause of recently high nitrates in the Raccoon River. In 2012 Iowa had its second-worst drought in history, notes Sean McMahon, executive director, Iowa Ag Water Alliance. With low yields, crops didn't take up all the fertilizer nitrogen applied. Then in 2013 Iowa had a very wet first six months, which flushed out nitrates not taken up by the crop. In 2014, June brought twice the average monthly rainfall Iowa usually gets for that month, which moved a lot of nitrate lower in the soil, below the root zone of crops. Then Iowa had a very wet August, September and October, flushing nitrates out of the system.
Water Works lawsuit is heading into uncharted waters
What are the ramifications farmers face in the three counties in northwest Iowa that are being sued? What will be the effects statewide from this lawsuit? That answer is unknown. Neil Hamilton, director of the Agricultural Law Center at Drake University in Des Moines, says this lawsuit is uncharted territory.
The federal Clean Water Act grants regulatory exemptions to nonpoint source discharges, such as field drainage systems. Tile drainage and field drainage systems are not point source, according to the Clean Water Act. However, Water Works officials contend that drainage districts and tile systems should be defined as point sources because they are designed and managed to take groundwater away from fields, which pollutes waterways in violation of federal law.
Hamilton says federal courts have not considered this issue before, and the lawsuit raises "important legal issues" concerning the interpretation and application of the Clean Water Act and of the authority and legal status of Iowa's drainage districts. "Some observers believe tile lines have always been exempt from the Clean Water Act but no federal case law or legislation supports it," he says.
Why this lawsuit is making drainage districts nervous
Drainage districts could face regulations, if the court rules tile drainage systems are point sources. Drainage districts could be required to take responsibility for the quality of water they send downstream. On the other hand, the Water Works is making a novel legal claim that might be tossed out of court. Even if the case moves forward it is the type of case that could drag on and on through the courts for many years before there is a decision.
"Clearly, this lawsuit makes people nervous because it involves untested theories, and the outcome is hard to predict," Hamilton says. "Des Moines Water Works officials are quick to point out they are not suing farmers or tile outlets. But this is disingenuous because if the court agrees that drainage districts are point sources, then the drainage districts may have to take steps to obtain permits to discharge water into streams, which could result in farm level impacts."
That's exactly what Stowe, Gillette and the rest of the Water Works board want. They say they believe all 3,000 drainage districts in Iowa covering about 9 million acres should be regulated, monitored and be required to have a permit system to discharge their water into streams and waterways.