DES MOINES, Iowa – Yesterday, the Board of Trustees of the Des Moines Water Works voted unanimously to proceed with the lawsuit it threatened 60 days ago, against three northwestern Iowa counties it says are polluting the Raccoon River without the proper EPA permit.
Since it issued its 60-day letter of intent to sue to those three counties, the Water works has met with state officials in a series of meetings to work toward resolution of the issue. However, Des Moines Water Works CEO and General Manager Bill Stowe says throughout those meetings, officials seemed to be unwilling to compromise.
“There [was] a firm opposition to any form of regulation and for us, that is not the deal-breaker,” explained Stowe, “but what we need are measurables and assurances and commitments about improvement in water quality, and frankly, we’re not getting any of that.”
After the vote, Des Moines Water Works Board of Trustees Chair Graham Gillette suggested that any possible permits or standards that could come from the lawsuit may actually be to the benefit of Iowa’s farmers.
“Right now, we rely on farmers,” explained Gillette, “and we point the fingers at farmers and say ‘You should solve this problem. You should plant more cover crops. You should do these things on your own, and at your own expense.’ I think going through this collective approach, but having permitting and standards in place, this levels the playing field and makes sure that every farmer and every county should meet the same standards… I guess what I’m saying Iowans, whether they’re farmers or not, I think that’s something that we should find agreement on.”
The lawsuit will be filed in federal district court for Iowa’s Northern District by Friday, and will mirror the original notice of intent to sue, filed under the Clean Water Act on January 9. That notice lasted for 60 days and was addressed to the Boards of Supervisors in Sac, Buena Vista, and Calhoun counties in northwestern Iowa.
Staff Attorney Kristine Tidgren at Iowa State University’s Center for Agricultural Law and Taxation questions whether the boards of supervisors are responsible.
“Bottom line: they really have no authority,” she said in January, “as far as controlling what flows through the drainage tile that is within those drainage districts, because all of the activity takes place on discrete farmland that is controlled by the owner of that land.”
According to the notice of intent to sue, the Des Moines Water Works believes that the drainage districts require a National Pollutant Discharge Elimination System permit, because the fit the Clean Water Act definition of a “point source,” which is not exempted from regulation as agricultural stormwater runoff is.
“We believe that they are clearly a point source,” Stowe explained in January, “They are a pipe; they are a channel; they look much like a municipal stormwater utility that is highly regulated. We believe that for them to equitably continue to operate, now thought has to be given, through permitting, through regulation, to water quality that they’re moving through groundwater sources, into the Raccoon and Des Moines rivers.”
Tidgren does not believe that NPDES permits apply to drainage districts.
“There’s really no good argument to make to say that those drain tiles underneath the surface, even though, perhaps they’re pipes and all that, but they fall directly within that exclusion for agricultural stormwater discharges, because that’s the whole point of their existence,” explained Tidgren. “I just think it’s a real uphill battle to try to argue that these drainage tiles which, you know, there’s just hundreds of them, are individual point-source discharges. That’s just very difficult to see that a court would go along with that.”
The Iowa Department of Agriculture is encouraging farmers to adopt recommended conservation practices under the Iowa Nutrient Reduction Strategy, in order to curb runoff into surface waterways. The strategy is part of EPA efforts in the Mississsippi River basin to reduce the “dead zone” in the Gulf of Mexico: a perennial area of low oxygen which disrupts marine life, due largely to nutrient runoff from farms. Stowe has called the Iowa Nutrient Reduction Strategy a failure, but Wright County producer Tim Smith doubts progress will happen overnight.
“You know, when new things come along, sometimes farmers want to see how they work first, before they actually try it for themselves,” he explained in January, shortly after the original vote to file a notice of intent to sue. “But there’s a lot of opportunities for farmers to try something like cover crops, on say, 40 acres or 80 acres, you know, a portion of their farm. I didn’t put all of my acres into cover crops the first year; I put about 300 acres in. but this past fall I seeded 550 acres of cover crops.”
Smith has 35 years of farming experience under his belt, but until he took part in an on-farm drainage tile water monitoring program with the Iowa Soybean Association, he had no idea how much of a nitrate load was leaving his farm. Smith says that’s a good place for any farmer to start to understand nitrates.
“The first step is finding out what is in our tile water, and then there is a responsibility,” said Smith. “I guess up until that point, we might be able to plead ignorance, but once we find out, then we realize we really do need to do something. So water sampling on a farm basis really is a good place to start, and there’s a lot of opportunity to do that through different watersheds. I know ISA has really taken the lead in that, in helping farmers find out what’s in the tile water leaving their [farms].”
To hear more about the litigation from Des Moines Water Works officials, click the audio player above this story.