Des Moines Initiates Clean Water Act Lawsuit to Stem Farm Pollution

Des Moines Initiates Clean Water Act Lawsuit to Stem Farm Pollution

By Brett Walton – Circle of Blue
January 20, 2015

 

Iowa’s largest city will sue three upstream counties to reduce nitrate contamination.
 
Photo © Flickr/Creative Commons user w4nd3rl0st
Des Moines, the Iowa capital, sits at the confluence of the Raccoon and Des Moines rivers. The city’s water utility is suing three upstream counties for nitrate pollution in the Raccoon River. Click image to enlarge.
 
Iowa’s largest city earlier this month notified three counties upstream of a primary drinking water supply for 500,000 residents that it intends to file a federal lawsuit under the Clean Water Act to stem nitrate pollution in the Raccoon River.
 
In a challenge to contemporary farm cultivation practices that has potentially broad consequences for American agriculture, water quality, and the nation’s clean water law, the impending court action seeks to require Buena Vista, Calhoun, and Sac counties to apply the same federal permitting process to certain forms of farm pollution that industrial facilities must follow.
 
 “I don’t have confidence that we’ve made any progress in Iowa in cleaning our water,” Graham Gillette, chairman of the Des Moines Water Works board, told Circle of Blue. “I don’t think any voluntary system will work. If we had adopted a voluntary system for air in the 1960s and 1970s, New York City would still look like Beijing today. We need some basic and achievable standards.”
The three counties have influential supporters who oppose Des Moines’ action. Iowa ranks second in the nation in farm sales at $US 30 billion per year and applies enormous quantities of nitrogen fertilizer to its cropland.
 
Governor Terry Branstad, a Republican, told the Des Moines Register editorial board that the city had “declared war on rural Iowa.”
 
John Torbert, executive director of the Iowa Drainage District Association, told Circle of Blue, “We feel that voluntary methods are a better way to affect change than through regulation.”
 
The case itself could be a legal stretch said Robin Craig, a law professor at the University of Utah. Written into the Clean Water Act are two explicit exemptions for agriculture — exemptions for stormwater that runs off of fields, and for excess irrigation water, called return flows. “That’s the real question in these cases,” Craig told Circle of Blue. “Given those exemptions, how are you going to frame the argument so that it isn’t one of them?”
 
Even some green groups think that litigation is not the best option. The Environmental Defense Fund is promoting a program called Sustain that was launched in October by United Suppliers, a fertilizer wholesaler. Sustain leverages the buying power of big retailers such as Walmart to pressure farmers toward practices that reduce nutrient pollution. The market-based strategy gets results by persuading companies that buy raw materials to adopt higher production standards.
 
Drainage Districts as a Legal Strategy
 
Farms are drained by a system of tiles and pipes that resembles urban plumbing. Tiles that are buried four feet to six feet deep shunt groundwater away from fields and into pipes that are akin to city water mains and are operated by the drainage districts. Water from the pipes flows into ditches and streams. Groundwater is a rich source of nitrates in Iowa, according to the U.S. Geological Survey.
 
Des Moines’ goal of having drainage districts classified as a point source of pollution is a less groundshaking legal gambit than attempting to reclassify all farm runoff as a point source. Using this approach makes the lawsuit more likely to succeed, said Justin Pidot, an assistant law professor at the University of Denver.
 
The lawsuit’s ability to set a legal precedent depends on how it is argued and ruled, Pidot said. The action might have less influence in the Western United States where irrigation is more common and the Clean Water Act exemption for irrigation return flows would come into play.
 
John Torbert, executive director of the Iowa Drainage District Association, noted that the Des Moines lawsuit comes just two years after Iowa approved a statewide strategy for reducing nutrient pollution.
 
Indeed, Iowa is one of only two states in the Mississippi River Basin to have completed a statewide nutrient reduction plan, which was recommended by the federal government in 2008 as a way to shrink the annual fish-killing, low-oxygen dead zone in the Gulf of Mexico that is a consequence of farm runoff from 12 states.
 
The state Legislature has committed roughly $US 24 million to the plan, according to Dustin Vande Hoef, communications director for the Iowa Agriculture Department, who also said it is too early to judge the plan’s success. The money goes to conservation efforts such as cover crops, changes in cultivation practices, and installation of nitrogen-absorbing vegetation along the edges of fields.
 
Iowa’s goal is to cut nitrogen and phosphorus pollution by 45 percent. The plan, which relies on voluntary efforts, education, and financial carrots from the state, sets no deadline for achieving the goals. “The state is just two years in,” Torbert said. “It’s barely off the ground.”
“A lawsuit generates attention and pressure, but the market is also a way to work collaboratively that isn’t a fight,” EDF’s Suzy Friedman told Circle of Blue.
 
Huge Test For Clean Water Act
 
In the face of such opposition Des Moines officials say they are intent on pursuing their case in court. The Des Moines lawsuit, if it’s successful, would have enormous consequences for the reach and enforcement of the 1972 Clean Water Act, the nation’s most important statute for clearing contamination from inland and coastal waters. The 43-year-old law requires sewage plants, manufacturers, and other industrial facilities to limit contaminants in their effluent. The Clean Water Act, and its enforcement by federal courts, transformed urban waterways from cesspools into civic assets.
 
But agriculture was exempted from the Clean Water Act because farms were considered “non-point” sources of pollution — pollution that did not come from a pipe. Since the 1970s, large animal feedlots were brought under the act’s permitting requirements.
 
Other updates to the law have added new benchmarks for water quality in rivers. The benchmarks, called TMDLs, set standards for nitrate pollution that apply to agriculture as well as industry. But TMDL standards are overseen by the states and most actions for farmers are voluntary.
No state, as a result, has corralled water pollution from farms, said Justin Pidot, an assistant law professor at the University of Denver who studies the Clean Water Act.
 
“I don’t know of any state model that has been tremendously successful,” Pidot told Circle of Blue. “State and federal government haven’t been able to get a handle on this problem. Wherever you have agriculture, you usually have water pollution problems.”
 
Agriculture accounts for 90 percent of Iowa’s nitrate pollution, according to state figures. The Des Moines lawsuit is aimed at drainage districts, which are overseen by county boards of supervisors, and use a system of tiles and pipes to clear excess water that would hamper farm productivity. Des Moines is located in a particularly soggy wedge of Iowa where drainage districts are common. Roughly one quarter of the state is drained, according to the Iowa Drainage District Association, a trade group, and many of the districts are located northwest and upstream of Des Moines.
 
In their function and design, Des Moines argues, drainage districts are no different than urban utilities that channel stormwater into streams. Des Moines contends that drainage districts should be regulated like a wastewater treatment utility. It does not argue that all farm runoff should be classified as a point source — only the piped subsurface drainage, which is common in the Corn Belt states of Illinois, Indiana, Ohio, and southern Minnesota.
 
Condition of Des Moines’ Water Worsens
 
Des Moines officials say they had to do something to deal with nitrates in the city’s drinking water. The Raccoon River in central Iowa is one of the city’s primary sources of drinking water. Measurements of nitrates, a common ingredient in commercial fertilizers, are typically highest in the growing season — in late spring and early summer after farmers seed the fields and feed nutrients to the plants.
Map © Kaye LaFond / Circle of Blue
Des Moines, the Iowa capital, sits at the confluence of the Raccoon and Des Moines rivers. The city’s water utility is suing three upstream counties for nitrate pollution in the Raccoon River. Click image to enlarge.
 
In recent months the Des Moines Water Works noticed an unusual wintertime spike in the city’s water supply. Nitrates, which cause blood disorders and can be fatal to infants, were well above the federal government’s 10 parts-per-million standard for drinking water. The nitrate surge forced the utility to switch on equipment for removing the pollutant, at a cost of $US 4,000 per day. The machinery has been running constantly for nearly seven weeks.
 
“It’s unprecedented for this time of year,” Graham Gillette told Circle of Blue.
 
If the high nitrate levels were an aberration, they might be ignored. But the record-breaking swell is emblematic of a deeper, more pervasive problem that afflicts not only the Iowa capital but the Mississippi River Basin, the Gulf of Mexico, the Great Lakes, and farm regions and water bodies across the United States. More than four decades after the Clean Water Act was enacted, water pollution in many communities downstream of intensive agriculture is getting worse.
 
Nitrate pollution in the Mississippi River Basin, which includes Iowa, grew by 14 percent between 1980 and 2010, according to the U.S. Geological Survey, leading to rising utility costs and aquatic dead zones in the Gulf of Mexico the size of New England states. In Lake Erie in August, a toxic algal bloom, pumped up by phosphorus and nitrogen from upstream farms, prompted Toledo officials to shut down the public water system for three days. In rural California, groundwater, often a relatively pure source, is undrinkable without treatment for millions of people because of decades of nitrate poisoning.
 
Using Retail Muscle to Change Practices
 
The Environmental Defense Fund is working with Walmart, the world’s largest retailer, and United Suppliers, a large wholesaler of fertilizer, among other businesses to use market pressure to create demand for sustainable products and reduce nutrient pollution from farms.
 
United Suppliers’ program, called Sustain, was launched in October. It will train farmers to use precision techniques that prevent excessive fertilizer use.
 
Walmart set a goal of reducing greenhouse gas emissions in its supply chain by 20 million metric tons by 2015. Internal analysis found that fertilizer use accounted for the biggest share of emissions for more than half its best-selling products. United Suppliers, for its part, sees a business opportunity by aligning itself with the retail giant.
 
“Farmers can choose not to improve their practices but they’ll put their market relationships at risk,” said Suzy Friedman, director of EDF’s sustainable sourcing initiative. “Interest from the business arena wasn’t in place before. Now there’s a big push behind it.”
 
Friedman said that the partnership is still working out how to verify improvements in fertilizer use.
Des Moines’ water supply is not an icky green muck, à la Erie. But the utility is tired of waiting for better days. Without changes in the status quo, dealing with the nitrate problem could become even more expensive for Des Moines.
 
Des Moines built its $US 4 million nitrate-removal facility in 1992, the year that the U.S. Environmental Protection Agency restricted nitrates in tap water to 10 parts per million. Gillette said that the utility has contemplated building a second denitrification facility, to expand treatment capacity. That project would cost urban ratepayers between $US 80 million and $US 180 million, he said.
 
Lawsuit Forthcoming
 
The investments will nibble at the problem, but Gillette feels that without a bigger regulatory bite, the Raccoon River, the state of Iowa, and the entire Mississippi River Basin will continue on the path of failure.
 
According to the law, there is a 60-day waiting period between notifying parties of the intent to sue and filing the lawsuit. The interim period allows the two sides to seek resolution outside of court. Asked on Monday if he foresaw any circumstance in which the utility would not follow through with legal action, Gillette said no.
 
“I think we can make significant progress,” Gillette said. “The problem isn’t so dire that it’s hopeless. We just need to have a serious conversation about it.”
 

http://www.circleofblue.org/waternews/2015/world/des-moines-initiates-clean-water-act-lawsuit-to-stem-farm-

2017-01-17T09:21:55+00:00 January 22nd, 2015|News|Comments Off on Des Moines Initiates Clean Water Act Lawsuit to Stem Farm Pollution