Des Moines Water Works Nitrate Lawsuit Ends
The Des Moines Water Works has decided to resolve its clean water concerns without appealing a federal judge’s decision to dismiss the utility’s lawsuit. The Water Works board made the decision in April, ending a more than two-year legal battle. Now, voluntary efforts to improve and protect water quality get their chance.
“Iowa will continue to be burdened with expensive, serious and escalating water pollution problems,” said Water Works CEO Bill Stowe. “The lawsuit was an attempt to protect our ratepayers, our customers, whose public health and quality of life continue to be impacted by unregulated industrial agriculture.”
The Water Works filed a federal lawsuit in March 2015 against drainage districts in Sac, Buena Vista and Calhoun counties. It said the districts are funneling high levels of nitrates into the Raccoon River, a source of drinking water for 500,000 central Iowans. The suit claimed drainage tile used to make farmland more productive is bypassing natural conditions that otherwise keep nitrates from entering streams and rivers.
The Water Works sought to have drainage districts, and indirectly farmers, regulated under the federal Clean Water Act as a point source of pollution, much like factories and businesses. Judge Leonard Strand dismissed the lawsuit March 17, saying Iowa’s water quality problems are an issue for the Iowa Legislature to fix. Strand wrote that the Water Works “may well have suffered an injury” from the high nitrate levels, but drainage districts have no power to address the issue.
Focus on voluntary action
A controversial bill to dismantle the Des Moines Water Works board and replace it with a regional board died this session. Stowe called the legislation retaliation for the utility’s lawsuit. He chastised lawmakers for focusing on efforts to dismantle the Water Works board rather than work to improve Iowa’s water quality. “Rather than wasting valuable time and resources crafting legislation to punish Des Moines Water Works for filing the lawsuit, our legislators need to create bold laws that address water pollution,” he said.
Instead of appealing the judge’s decision, Water Works officials chose to wait and see if voluntary water quality initiatives by farmers and landowners reduce nitrate levels in the Raccoon River. “To farmers upstream, we understand they have to make a living,” said Stowe. “But we don’t want them pushing their costs and a public health concern downstream to us.”
Des Moines Water Works operates one of the largest nitrate removal systems in the world. In 2015, it cost $1.2 million to run the plant. Stowe said, “We say to farmers, ‘You’ve said the voluntary approach to nutrient reduction will work; now you have to walk the talk. Show us this voluntary process really can deliver measurable sustained improvements.’”
Measuring the progress
Many in the ag community are pleased the lawsuit was dismissed, relieved they no longer face the potential costs associated with being defined as a point source polluter. Iowa farm leaders believe significant soil and water protection progress can continue without the distraction of litigation. “The lawsuit dismissal means the focus should return to collaborative approaches, working together to improve water quality,” said Iowa Farm Bureau President Craig Hill.
But Stowe remains skeptical. “Realistically, we believe the voluntary approach taken by the Iowa Nutrient Reduction Strategy is a non-starter,” he said. “Counting the number of acres of cover crops, a negligible number from our view at around 620,000 acres last year, compared to 22 million tillable acres in Iowa, isn’t the measure to use. The measure should be water quality, what’s happening in the rivers.”
Announcing the board’s decision not to appeal, Stowe said: “The quality of water in Iowa’s rivers, lakes and streams is a drinking water catastrophe in waiting. We believed that two years ago embarking on the legal route to try to reprioritize environmental protection in Iowa. That’s still our conclusion. Having to stop our lawsuit challenging the federal Clean Water Act and Iowa law involving environmental protection was a hard decision for our board. But we will keep our message alive to protect environmental quality and protect Iowa surface water and groundwater from further degradation.”
Empower drainage districts
Stowe said the Water Works “looks forward to working with a number of partners in the environmental, academic and sustainable ag communities, and our political leaders to continue progress toward the goal of better protecting the health and safety of Iowans by protecting our drinking water.”
The Water Works will work to further empower drainage districts to look at water quality at the local watershed level. Stowe said the Water Works budget issues are complex, and “we had hoped the litigation process would let us collect damages to help pay for costs associated with nitrate removal. Obviously, we’re no longer able to do that and must move forward assuming clean water concerns will continue to haunt us in the foreseeable future — both nitrate and phosphorus in the Raccoon and Des Moines rivers.”
In the next year or two, the Water Works will need to invest $15 million or more to upgrade its denitrification facility. “That’s the first of several steps to take us to tens of millions of dollars in customer investment to clean up the dirty water we have in the Des Moines and Raccoon rivers,” said Stowe. “Our basic concern is the cost of production both in livestock and crop farming is being pushed from farms to our ratepayers.”
He added, “Our ratepayers have suffered through 10% rate increases in the last four years, and I’m confident we’ll see rate increases several times greater than that in the foreseeable future because of our inability to move this issue through the legal process. We will be spending tens of millions of dollars in the next two to five years, to deal with both denitrification concerns and also increasing concerns about blue-green algae and other over-nutrification in water in Iowa.”