Des Moines Water Works loses contentious drinking water case to Iowan farmers
While there’s been much focus the past year on Flint, concern over clean drinking water isn’t limited to the confines of the Michigan town.
Des Moines, Iowa has its own problem with clean water due to nitrate runoff from farms, and the issue came to a head last month when an unprecedented litigation concluded that drainage basin districts, and indirectly farmers, were not responsible for drinking water costs associated with cleaning up nitrate runoff.
It all revolves around nitrate contamination in Iowa’s Raccoon River, but the details of the lawsuit demonstrate the delicate interplay between water utilities, citizens, and politics when it comes to safeguarding U.S. water.
What is the Des Moines Water Works Lawsuit?
The Des Moines Water Works lawsuit is a 2015 federal lawsuit invoking the Clean Water Act against three local Iowan counties (Calhoun County, Sac County, and Buena Vista County) and their respective Boards of Supervisors.
The plaintiff? The Des Moines Board of Water Works Trustees.
Des Moines Water Works offers water service to Des Moines, as well as the Warren County Water System, Windsor Heights, and Polk County. It was the Water Works’ assertion that the counties named in the lawsuit are ultimately responsible for farm runoff that has polluted the water, because the counties supervise the various drainage districts that appear to be at fault.
The United States Environmental Protection Agency (EPA) declares that nitrates in drinking water must not exceed 10 milligrams per liter (10 mg/L). Once that limit is exceeded, water consumption can prove hazardous, particularly to infants six months and younger.
Des Moines Water Works insisted that they spent decades attempting to align with farmers and agriculture groups to reach a solution, but that the collaborative effort has spectacularly failed. So spectacularly, in fact, that not only has the drinking water deteriorated in the last 25 years, but there has been a state-assessed 15-percent increase in health concerns, such as nutrient pollution and bacterial outbreaks, in the area in the last two years alone.
Even more startling is that Sac County testing has revealed that toxic nitrogen levels in a number of its waterways emptying into the Raccoon River are at five times the standard the EPA considers safe.
Citing the failure of voluntary conservation efforts to safeguard the area’s drinking water—and the fact the Water Works spent $1.5 million in 2015 after lengthy operation of their nitrate removal system following the record-high Raccoon River nitrogen pollution—the Water Works filed the lawsuit. General manager of the Des Moines Water Works, Bill Stowe, elaborated further on the decision recently in this Environmental Working Group video.
Landmark Implications in Des Moines
Des Moines Water Works argued within the lawsuit that the ultimate, primary source of the nitrate pollution is farm field and animal operations runoff moving from subsurface drains into various bodies of water before flowing into the Mississippi River.
The issue with this contention, of course, is the position it placed farmers in.
Iowa is a farming state. Approximately one-third of its economy is fueled by agriculture.
It’s a really delicate subject because inevitably, with an issue like water quality, a source has to be identified; the cause of the problem. But at the same time, to have the best chance of reaching a solution you have to minimize the finger pointing and do as much on a unified front where multiple interests can align, and I think that might be where we are struggling a bit in Iowa right now.
If the Water Works won the case, it would be a landmark decision, as the suit claimed that the drainage districts are point-source polluters identifiable as a result of their infrastructure acting as the conduit carrying the farm runoff. The counties supervise the districts. However, agriculture runoff is considered non-point source pollution due to difficult-to-quantify, diffuse origins. This is one contributing factor as to why many farming operations are Clean Water Act exempt.
A win for the Water Works would have meant that farmers are held accountable in the future for any polluted field runoff draining into canals and waterways. And not just in the state of Iowa, either—potentially throughout the entire United States.
It comes down to dollars and cents, too. A Water Works win would have put farmers on the hook for pollution prevention items that include biofilters, cover crops, and buffer strips. Such conservation efforts would be costly for farmers.
Fearing these consequences, farmers within the state started joining together in September, 2016 to fund legal costs to defend the drainage districts cited in the lawsuit. These include the Iowa Corn Growers Association and the Iowa Farm Bureau Federation.
Throughout the case, farmers claimed that they would not be able to shoulder the costs of losing to Water Works. To quote Cwiertny:
Farmers want clean water, but… At the same time, the state must help farmers invest in clean water improvements to ensure success. The precise mechanism for success might be a mix of regulation, financial incentives and collaboration in varying parts, but it’s the commitment by all stakeholders to see it through that matters.
Case Dismissed: A Blow to Water Works
On March 17, 2017, the Supreme Court ruled in favor of the drainage basins and dismissed the charges brought forward by Water Works. The court ruled that the drainage districts, and thus the farmers, did not have the "police powers" that state counties have. The ruling thus concludes that responsibility for managing the problem will be in the Iowan legislature. For now it would seem that Des Moines Water Works' $80 million investment for nitrate removal technologies will be on the shoulders of the utility and the consumers, raising concerns about rising water rates looking to offset the costs.
The problem remains complex. The case has environmentalists worried that accountability has just been officially passed downstream, and that it's bigger than just drinking water. Threats from nitrate run-off, like toxic blue-green algae blooms, will persist without upstream management.
A Bigger Problem Than Iowa
In November, 2016, The Mississippi River Collaborative issued a report taking to task the “weak and ineffective” efforts of the EPA to contain nitrate contamination. The report examined efforts in Wisconsin, Illinois, Missouri, Kentucky, Minnesota, Iowa, Tennessee, Mississippi, Arkansas, and Louisiana, finding that eight of those states had insufficient nutrient reduction strategies. The Mississippi River Collaborative blames the EPA for lackluster funding and unenforceable regulations.
Kris Sigford, water quality director at the Minnesota Center for Environmental Advocacy, elaborates:
The results of the EPA’s hands-off approach with the Mississippi River basin states are massive algae blooms and nitrate contamination that make our drinking water unsafe and render lakes and rivers unfit for recreation.
The EPA’s response highlights the dire challenges that remain. They contend they "cannot solve nutrient pollution by top-down federal action.”
State and nationwide resolution of the threat posed by nitrates in drinking water is clearly not on the immediate horizon, and that it will be the states, not the federal government, managing the question of accountability.
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