Drainage Districts Fire Back at Lawsuit From Downstream

Apr 15, 2016  | Ep4134

Spring field work began in earnest this week across the Corn Belt.

According to USDA, Corn planting is only 4 percent complete, which is in step with the 5-year average.

While those seeds go into the ground, legal proceedings in one Midwestern watershed continue to germinate across both rural and urban areas.  Josh Buettner explains…

Last year the Des Moines Water Works sued 10 drainage districts in 3 northwest Iowa counties in federal court - claiming the region’s extensive farm drain tile system increases nitrate runoff – and is polluting the primary drinking water supply for over half a million central Iowans.

Bill Stowe/CEO and General Manager – Des Moines Water Works: “Ultimately we think this is an externality from corn and soybean and agricultural production upstream that is being pushed to our customers.”

Bill Stowe, who heads up Des Moines Water Works, has drawn the ire of many in Iowa’s agricultural community.  However, local media polls show consistent public support for the utility’s attempt to revisit longstanding environmental law.

Bill Stowe/CEO and General Manager – Des Moines Water Works: “Basically there are two categories of claims here.  One of them is our federal claims under the Clean Water Act, the drainage districts are point source polluters, and that is a federal claim that really looks forward to regulation in the future.  Then we have a number of claims that are based on damages and many of those come under Iowa law.”

Attorneys for the accused drainage districts in Sac, Calhoun and Buena Vista counties say districts are able to renovate tiling systems incrementally to help boost agricultural performance, but are immune from legal challenges under Iowa law.

David Wollenzein/Calhoun County, Iowa Drainage District Attorney: “The landowners within the district are the ones who determine whether an improvement will be made.  The trustees don’t have the authority to do anything on their own.  They can’t mandate cover crops, they can’t mandate biofilters, they can’t mandate filter strips, they can’t mandate waterways…”

State government has proposed several ways to throw money at water quality during the current legislative session, but so far nothing has stuck.  Critics counter voluntary efforts, like the state’s 2013 Nutrient Reduction Strategy, lacks accountability and is too little, too late. 

But states have held higher standards than those coming down from Washington, D.C., like California’s past guidelines on emissions.

Gary Armstrong/Buena Vista County, Iowa Drainage District Attorney: “This has been the law for 40 years, but neither Congress or the Iowa legislature has seen fit to do the very thing you suggest.”

Colin McCullough/Sac County, Iowa Drainage District Attorney: “And there’s a reason for that.  The system works as it is right now.”

The districts’ lawyers further claim the lawsuit puts them in the precarious position of litigating laws which aren’t on the books. 

Back in January, the original federal judge sent some of Water Works’ legal assertions to the Iowa Supreme Court for clarification.  And while the state’s high court has yet to respond, the defense team recently filed a memorandum which could dismiss the remaining federal counts.

Colin McCullough/Sac County, Iowa Drainage District Attorney: “Farmers don’t have to ask permission to put in a drain tile and they certainly don’t all the time.  And in the past it’s my experience that no map was ever kept of the location, the depth, or the size of the tile.”

Officials with Des Moines Water Works contend defendants, currently considered non-point source polluters, foul groundwater, and should be treated as if they were industrial point-source polluters. 

David Wollenzein/Calhoun County, Iowa Drainage District Attorney: “Every landowner inside a drainage district has a right to hook onto the district facilities.  So potentially every few hundred feet, every one of these tile lines that’s shown on this county plat has private tile hooked to it.”

Corn Belt water treatment facilities have dealt with high nitrates for decades.  And Iowa’s capitol city took steps to comply with federal guidelines long before Stowe’s tenure by constructing a $4.1 million nitrate removal facility in 1990.

In 2015, the utility ran the plant for a record 177 days and spent $1.5 million removing nitrates from surface waters it captures from the nearby Raccoon River.

Bill Stowe/CEO and General Manager – Des Moines Water Works: “Our larger concern isn’t the operating cost, it’s the fact that we have to run it that often.  We’re essentially running it into the ground, literally.”

Des Moines Water Works has long held the necessary federal permit to dispose of the nitrates it removes for customers back into local waterways – a bone of contention among some members of the farming community.

Bill Stowe/CEO and General Manager – Des Moines Water Works: “The board that I work for has made very clear that we want to be leaders in environmental protection, not simply living by the letter of the law, to go beyond that.  For many years folks have gotten caught up on the idea that we put nitrates back into the river.” 

Next downstream, Ottumwa Water & Hydro draws on the river for hydroelectric power and drinking water.  Water is pumped to a reservoir when nitrate levels are low to dilute supplies when contaminants spike.  General Manager Michael Heffernan says nitrates are a growing concern, but the watershed is the culprit.

Michael Heffernan/General Manager – Ottumwa Water Works (water & hydro?): “Some people were questioning how the impact of them dumping the nitrates back in the river affected us, which is virtually none because they’re just returning the nitrates they removed and not adding to the nitrate problem.”

Heffernan says Ottumwa’s nitrate readings often come in low compared to Des Moines.  He attributes the difference to natural denitrification processes, where nutrients are released into the atmosphere, completing the complicated nitrogen cycle.

Gary Armstrong/Buena Vista County, Iowa Drainage District Attorney: “That’s four-tenths of one percent.”

Citing a Tuft’s University hydrologist, members of the defense team believe a similar theory holds true upstream.  They maintain the 150-plus river miles that separate them from their accuser allows for multiple dilution and denitrification opportunities, along with urban runoff.     

Colin McCullough/Sac County, Iowa Drainage District Attorney: “There is less than four tenths of one percent of Sac County nitrates that get to Des Moines.  We have an expert that so testifies, and Des Moines Water Works has no evidence to contradict that.”

If legal wrangling doesn’t dismiss or delay the unprecedented case, trial is set for August in Sioux City.  For Market to Market, I’m Josh Buettner.

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