Will Des Moines water lawsuit change farming rules?

By Donnelle Eller – Des Moines Register
January 19, 2015


(Photo: Michael Zamora/The Register)


A Des Moines utility’s plan to sue three northwest counties for polluting central Iowa’s drinking water supply may have broad ramifications for state and U.S. farmers, who environmentalists complain have been too slow to embrace meaningful conservation practices.
It’s too soon to say exactly how Des Moines Water Works’ threatened lawsuit could play out in farm fields across Iowa and the nation.
But agriculture experts and environmentalists are closely watching the case, which they say could bring to a head a decades-long national fight over who is responsible for water pollution that originates from cropland that often is hundreds of miles away.
They say the outcome could, for the first time, indirectly require farmers to meet federal clean-water regulations that limit nutrients such as nitrates and phosphorus that enter U.S. waterways.
"The ruling, however it comes down, could be precedent-setting," said Neil Hamilton, an agricultural law professor at Drake University.
The federal government now considers water from farmlands as surface runoff and exempts it from oversight.
But the Des Moines agency contends the underground tiling widely used by farmers bypasses the natural filtering soil provides, acting as "a continuous mechanism for transporting nitrates to streams."
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Bill Blubaugh, lab technician with Des Moines Water Works, heads down the riverbank of the Raccoon River Thursday to collect water samples that will be tested at the treatment plant in Des Moines.(Photo: Michael Zamora/The Register)
The utility is targeting drainage districts in Sac, Calhoun and Buena Vista counties, saying the tiles siphon groundwater laden with nitrates into the Raccoon River, a source of drinking water for central Iowa, along with the Des Moines River.
Testing since March shows nitrate levels in one drainage district were nearly four times the amount the federal government says is safe for drinking water. Infants younger than 6 months are particularly at risk with high nitrate levels, potentially becoming seriously ill without treatment.
The high levels have forced the Des Moines utility to treat the water to reach acceptable nitrate levels, a cost that approached $1 million in 2013.
The utility argues that drainage districts, and ultimately farmers, should be responsible for curbing nitrate pollution. It contends that districts should be required to obtain permits under the federal Clean Water Act, which would bring to bear limits on nutrients such as nitrogen and phosphorous.
"It’s bigger than three boards of supervisors and seven drainage districts," said Bill Stowe, CEO of Des Moines Water Works, which has announced plans to sue the counties within 60 days. "The ultimate issue is to treat drainage districts as point-source polluters that are regulated and permitted."
But agriculture leaders say a lawsuit would be costly and burdensome — and won’t necessarily fix Iowa’s water-quality problems. They also say it deflects from work currently underway that is reducing pollutants, such as building wetlands, terraces and buffer strips.
Farm leaders, along with Republican leaders such as Gov. Terry Branstad and U.S. Sen. Joni Ernst, say that voluntary compliance is a much better solution than more rules and regulations on agriculture.
"It would be a real challenge to get it right in a regulatory environment," said Bill Northey, Iowa’s secretary of agriculture, who is also a Republican.
While utility and county leaders could work out an agreement before the lawsuit is filed, an ensuing legal battle is likely to be long and expensive, with more than a dozen state and national agriculture and environmental groups joining it, say experts.
Already battle lines are being drawn. Branstad said last week that "Des Moines has declared war on rural Iowa." And the Iowa chapter of the Sierra Club and other environmental groups are interested in joining the utility’s fight.
"The fact that the governor, Farm Bureau and everyone else is up in arms means we could get somewhere" with a lawsuit, said Wally Taylor, Iowa’s Sierra Club attorney.
The danger of nitrates
Environmentalists say state and federal leaders have lacked the political muscle needed to push farmers in Iowa and elsewhere to reduce nitrogen and phosphorous pollution that contribute to drinking water problems in many cities, just like in Des Moines.
It’s a sizable problem. The federal government estimates it costs the nation $4.8 billion annually to remove nitrates from drinking water.
In Des Moines, central Iowa consumers paid $900,000 in 2013 to run the nation’s largest nitrate-removal facility. In December, it began using the plant again, at a cost of $4,000 to $7,000 daily, to clean the water to acceptable levels.
"The agricultural industry is causing a huge, multibilliondollar problem, and Des Moines is a victim of that problem," said Ann Alexander, a senior attorney for the Natural Resources Defense Council who is based in Chicago. "There’s no reason in the world why Des Moines should have to pay to fix a problem it did not cause."
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Bill Blubaugh, lab technician with Des Moines Water Works, collects water samples Thursday at multiple points along the Raccoon River in Des Moines.(Photo: Michael Zamora/The Register)
The state has embraced a voluntary plan for farmers that seeks to cut by 45 percent both nitrogen and phosphorous entering Iowa waterways.
The Environmental Protection Agency’s regional office has declined to comment on the Des Moines litigation, saying instead that it continues to support Iowa’s nutrient-reduction strategy.
Difficulty of regulation
Even if the waterworks is successful in its lawsuit, agricultural leaders say any resulting regulations may be impossible to enforce.
The state’s 3,000 drainage districts cover 9 million acres, they say, about a quarter of Iowa’s 36 million acres.
"Imagine trying to test every tile line out there, and follow around every farmer" to ensure compliance, said Northey, the state’s ag secretary.
Northey and others question whether regulations would improve water quality, since droughts, flooding and other weather events are uncontrollable, yet dramatically affect runoff.
Fixes outlined in state strategy to reduce the loss of nitrogen and phosphorous depend on most of Iowa’s nearly 90,000 farmers to adopt multiple conservation practices, said John Lawrence, an assistant dean in ISU’s College of Agriculture.
"It’s a pretty tall hill to climb," Lawrence said. "If it were easy, we would be further along."
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Bill Blubaugh, lab technician with Des Moines Water Works, lowers a collection bottle off the Riley Trail bridge Thursday as he takes water samples at multiple points along the Raccoon River in Des Moines. The waterworks plans to sue three counties for polluting central Iowa’s drinking-water supply.(Photo: Michael Zamora/Register photos)
Iowa State University estimates it could cost up to $1.2 billion annually over five decades to reach the nutrient-reduction goals, which should result in major improvements in water quality across the state.
Stowe calls the state’s current approach a failure, as evidenced by Des Moines Water Works’ repeated need for nitrate filtering.
But farm groups say the efforts, just 18 months old, are gaining support with farmers and already showing results.
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Bill Blubaugh, lab technician with Des Moines Water Works, collects water samples Thursday at multiple points along the Raccoon River in Des Moines.(Photo: Michael Zamora/The Register)
The Iowa Soybean Association says its analysis shows nitrate concentrations in the Raccoon River watershed have fallen because of farming efforts such as conservation tillage, high-tech fertilizer applications and added conservation practices such as cover crops.
Northey said farmers, along with the state and federal governments, are spending "tens of millions" of dollars annually to better hold nutrients on their farmland. Last week, Iowa and Cedar Rapids won nearly $6 million in federal grants for water-quality projects that will be matched by $9 million from farmers, agribusinesses and state government.
Heavy investment
Stowe, the utility’s CEO, discounts the ag group’s contention that runoff is improving.
"We have to deliver water within the safe drinking water requirements on a daily basis," he said. "It’s costing our customers a lot of money, and it’s putting us in a position where we have to plan to build more of those plants to keep up with the numbers that we’re seeing."
Stowe said the utility faces investing $100 million or more to handle the high nitrate levels. The current facility is more than 20 years old, and a new plant would have technology that would avoid returning part of the nitrates removed from the water back into the river.
The agency has been heavily criticized for the action by farm groups, but Stowe has said officials have no other option, since the resulting nitrate slurry generated by the plant can’t be applied to land. "Our ratepayers face investing X number of dollars in a suit … or investing $100 million-plus in construction," he said, adding that the utility doesn’t have an estimate on the legal expense. "It was a pretty easy answer for my board to answer. We’re not looking at $100 million in litigation costs."
Public meetings
Iowa Agriculture Secretary Bill Northey plans community meetings in the three northwest Iowa counties targeted for a lawsuit by Des Moines Water Works.
·         Calhoun County: 2 p.m. Tuesday, Expo Building, Rockwell City.
·         Sac County: 4 p.m. Tuesday, Conservation Center, Sac City.
·         Buena Vista County: 8 a.m. Wednesday, King’s Pointe Resort, Storm Lake.
Surface water vs. groundwater
The Environmental Protection Agency long has exempted farmland runoff from federal regulation.
But Des Moines Water Works argues that water captured in drainage tile, buried 3- to 4-feet deep, is groundwater, not surface water, and therefore is not exempt from federal clean-water regulations.
Its proposed litigation contends that "these elaborately engineered government drainage systems consist of pipes and conduits that have been overlooked as point sources" under the federal Clean Water Act. "But they transport high concentrations of nitrate and are the main source of pollution" in the Raccoon and Des Moines rivers, the sources of drinking water for 500,000 residents in central Iowa, the utility wrote in its notice to sue Sac, Calhoun and Buena Vista counties.
The utility argues that the drainage districts, which fall under the jurisdiction of county supervisors, should be required to obtain permits under the federal Clean Water Act, action that could bring with them limits on nutrients such as nitrogen and phosphorous.
The federal government has exempted runoff from nonpoint sources because of the difficulty in determining where contaminants are coming from as water moves over or through the ground.
Bill Northey, the state’s ag secretary, said the lawsuit could force rural counties to become municipal water-treatment facilities.
"The districts aren’t designed to produce treatment plant-quality water," he said.
And, Northey said, the lawsuit could result in more Iowa cities being required to meet clean water requirements for urban stormwater runoff. About 40 cities in Iowa now follow federal regulations on stormwater runoff.
"A pipe is a pipe," Northey said.
The state has 3,000 drainage districts that cover about 9 million acres, or a quarter of the state. The districts fall under the jurisdiction of the state’s 99 county boards of supervisors.
Nitrogen fertilizer use in U.S. agriculture
Fertilizer use across the nation has more than quadrupled in the past 50 years. During the same time, corn production has tripled to 12.3 billion bushels and the nation has added 12.5 million acres of farmland.


Source: Economic Research Service, U.S. Department of Agriculture
The dead zone
The problem of fertilizer runoff has cropped up around the United States.
Farm fertilizers have been blamed for the Gulf of Mexico’s infamous dead zone, where nitrogen and phosphorus runoff ignite algae blooms that deplete the gulf of oxygen. Those same fertilizers are being cited for contributing to a toxic algae bloom last summer that left 500,000 people in the Toledo, Ohio, region without water for two days.
The federal government estimates that agriculture in the Midwest is responsible for 71 percent of the nitrogen and 80 percent of the phosphorous contributing to the Gulf of Mexico’s dead zone. The rest comes from cities — sewage treatment plants, fertilizer from golf courses and city yards — and other sources.
Iowa, the nation’s leading corn producer, is among a dozen states that the U.S. Environmental Protection Agency is pushing to reduce nutrients that contribute to the dead zone, which last summer was about the size of Connecticut.