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MAKING PROGRESS: Iowa Supreme Court’s decision rejecting key claims in the Des Moines Water Works’ lawsuit puts momentum behind making real progress in improving water quality in Iowa, says Iowa ag leaders.

Farmers applaud water quality ruling

Iowa Supreme Court says Des Moines Water Works lawsuit can’t collect damages from drainage districts.

Iowa farm groups cheered a ruling issued by the Iowa Supreme Court in late January, which dealt a blow to the Des Moines Water Works in its lawsuit against drainage districts in three northwest Iowa counties. The lawsuit, filed in federal court, is still scheduled to go to trial in late June, but this ruling by the Iowa Supreme Court is an important one.

The lawsuit was filed by the Water Works against drainage districts in Sac, Calhoun and Buena Vista counties in 2015 in federal court in Sioux City. The suit seeks $1.4 million in financial damages due to the presence of nitrates in the Raccoon River, a source of water for 500,000 central Iowa residents.

Des Moines Water Works operates a nitrate removal facility on water it gets from the river. The utility hoped to recover damages to help pay for costs of running its nitrate removal facility. But the state Supreme Court upheld a century of precedent that drainage districts are immune to being sued for damages. The utility argues the protection relieves drainage districts of responsibility to limit farm runoff into streams and rivers.

This lawsuit isn’t over yet
Another portion of the suit is set for trial in federal court in June. The Water Works wants to force drainage districts to get permits under the federal Clean Water Act. That would increase regulation on the 3,000 districts statewide and indirectly farmers across the state and, potentially, the nation.

How did the Iowa Supreme Court become involved in a federal case? The federal court asked the state’s high court to step in after attorneys for the drainage districts in the three requested U.S. District Court Judge Mark Bennett to dismiss part of the suit, claiming drainage districts should be immune from paying damages because of precedent in Iowa law. The state Supreme Court upheld the long-standing precedent that drainage districts, which have a limited, targeted role, have been immune from damage claims for over a century. The court noted this immunity was reaffirmed in a case four years ago.

The Des Moines Water Works case now returns to federal court to decide whether to dismiss the case as requested by the drainage districts. If that request is denied, the remainder of the lawsuit is set to go to trial in June.

Farmers hope for dismissal
Iowa Farm Bureau President Craig Hill hopes the federal court will dismiss the remaining parts of the case, and that collaborative work to improve water quality and fund continued efforts can be the unified focus of all Iowans moving forward. Progress in water quality, Iowa ag leaders say, is ongoing, and farmers are making measureable improvements.

“The state Supreme Court ruling is good news,” says Hill. “We never felt lawsuits were the way to go to improve water quality. We think collaboration will work better than litigation.”

The ruling shouldn’t impact the discussion in the Iowa Legislature about increasing cost-share and other funding for water quality programs and practices. The lawsuit targets drainage districts, which were never designed to deal with water quality issues and were not intended to be liable for these types of damages, says Hill. “The lawsuit has done nothing to improve water quality and has impeded conservation progress. Iowa farmers are taking on the challenge of improving water quality, but the challenge is bigger than farmers. That’s why farmers partnered, prior to the lawsuit, in key areas of Iowa to improve water quality. That work will continue.”

Focus on collaboration
Farmers’ water quality efforts, which include collaboration and adoption of practices designed and measured by Iowa State University researchers, will sustain the land and water for all Iowans, says Hill. “With 1 in 5 jobs directly tied to ag, rural Iowa has much at stake with this lawsuit, which from the beginning had the potential to impact not just every farmer in Iowa, but agriculture throughout the United States.”

Those comments are echoed by other ag leaders, including Iowa Ag Secretary Bill Northey. “While Iowans have continued to take on the challenge of improving water quality and investing in additional conservation practices, the lawsuit has been a needless distraction from our collaborative, research-based approach. Our approach is working in rural and urban areas across the state to improve water quality,” he says.

Northey calls the recent Iowa Supreme Court decision “a significant loss for Des Moines Water Works in its effort to push its lawsuit forward. Unfortunately, the lawsuit has already cost Water Works ratepayers more than $1 million in lawyer fees that could be better spent improving the utility’s infrastructure and serving its customers.”

The Water Works board agreed to spend up to $1.35 million to pursue the lawsuit. Several ag groups have contributed about $1 million to help the three counties named in the suit defend themselves. Officials of the counties say their drainage districts add a relatively small amount of nitrates to the Raccoon River and make up less than 1% of its watershed northwest of Des Moines. Ag leaders also question the practicality of regulating drainage districts, which cover about a quarter of Iowa’s 36 million acres.

Questions still remain
Kurt Hora, Iowa Corn Growers Association president, says the high court’s ruling is “good news for farmers,” but remaining questions in the lawsuit still threaten agriculture. “The legal issues in this suit could restrict our ability to farm, both practically and economically,” says Hora, a southeast Iowa farmer. “A favorable outcome in the lawsuit will allow us to continue to try new ways of improving soil and water conservation.”

ICGA will continue to invest in and support both public and private partnerships to accelerate the adoption of water quality practices outlined in the Iowa Nutrient Reduction Strategy, Hora says, as developed by ISU and the Iowa Department of Agriculture and Land Stewardship. This statewide strategy is a voluntary effort to cut nitrogen and phosphorus losses from urban and rural areas by 45% by using recommended management practices.

The Iowa Supreme Court’s decision to not allow damages to be collected by the utility “renews hope that the federal district judge will dismiss the case, and Des Moines Water Works will abandon its expensive and divisive litigation,” says Roland Schnell, Iowa Soybean Association president who farms in central Iowa. “It also renews our optimism that the utility will re-engage in a cooperative approach with rural Iowa to make real and long-standing improvements in water quality.”

Schnell says “Iowa farmers remain focused on advancing real solutions to better water. Those include watershed planning, reducing tillage, increasing cover crop plantings, and targeting installation of conservation practices where they have the most impact on the quality of our rivers, lakes and streams.” These efforts advanced by ISA, other organizations, and farmers and landowners, he says, are generating results:
• Cover crop use will likely grow to 750,000 acres this year, an increase from about 500,000 acres in 2015 and 10,000 acres in 2010.
• ISA tile water monitoring conducted last year documented a 29% nitrate concentration reduction in fields with cover crops.
• Monitoring of bioreactors has shown a 20% to 50% reduction in nitrate concentration; Iowa is increasing the number of bioreactors deployed statewide, as well as installation of saturated buffers.

Hora and Schnell believe data-driven, science-based solutions are key to achieving water quality improvement. They emphasize that Iowa as a whole has just begun this important collaborative work, and farmers are energized about the results achieved and the role farmers and landowners will play in putting more conservation and water quality practices on more acres.

Pushing for regulation
Bill Stowe, Des Moines Water Works CEO and general manager, says “We’re disappointed, but not surprised” with the Iowa Supreme Court’s ruling prohibiting the utility from seeking damages from drainage districts. “However, several unresolved questions of permitting and, ultimately, regulation are not addressed yet and remain at the heart of the federal case.”


LAWSUIT CONTINUES: “While we are disappointed in the decision of the Iowa Supreme Court, we respect the court’s opinion,” says Bill Stowe, CEO of Des Moines Water Works. “Unresolved questions of permitting and ultimately regulation of farm drainage remain to be decided in federal court.”

While the opinion of the Iowa Supreme Court is important, it’s just one step in a process. “The federal court will have the last word on the lawsuit,” notes Stowe. “Our Water Works board remains committed to protecting Iowa’s surface waters from unregulated agricultural water pollution. We are moving forward through the legal process to benefit our ratepayers and, ultimately, all Iowans from public health risks and economic costs passed downstream.”

Drainage districts, currently classified as nonpoint sources, should be reclassified as point source polluters, says Stowe, same as city sewage treatment plants and industrial facilities. Agriculture has always been exempt from point source status.

He says water monitoring at 72 sample sites in Sac, Calhoun and Buena Vista counties has shown nitrate levels as high as 39.2 parts per million in groundwater, discharged by drainage districts — four times the federally required Safe Drinking Water nitrate regulatory limit of 10 ppm. “Laws require that point sources discharging into rivers must have permits under the National Pollutant Discharge Elimination System,” Stowe notes.

Because drainage districts transport nitrate pollution through a system of channels and pipes, he says “they should be recognized and held accountable like every other point source contributor. NPDES permits have been successful nationwide in controlling pollution caused by industrial waste and sanitary sewer discharge.”

Stowe strongly criticizes the Iowa Nutrient Reduction Strategy, now in its fourth year. He says it is a failure and hasn’t done enough to improve water quality. Stowe says the strategy will never work, because it is a voluntary program and has no timeline to accomplish its goals.

 

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