by Amber

Iowa: Nitrate Runoff Lawsuit

An unprecedented situation has developed in Des Moines over the past year. A water war, so to speak, in the form of a nitrate runoff lawsuit. Water Works, the city water supplier, is suing three rural county drainage districts for nitrate pollution in the Raccoon River. The cost of cleaning it out of the municipal water supply has escalated to a sum of $900,000 a year, and it must be removed to meet safe water requirements handed down by the EPA. It’s the first from several legal standpoints, raising issues that have never been brought before the federal court before. The historical case has the agricultural world in an uproar nationwide, and goes to trial in federal court this August.

What’s it all about?

Farmland takes up over 85% of Iowa, yet most people who live there are not farmers, or living on a farm. The state has been the top producer of corn, pork, and soybeans for decades. It also has a long-standing reputation for having the worst water… sort of the poster child of examples on water quality reports. Des Moines and other cities in the state have growing populations as more and more leave farming, and intensive producers take over it’s cropland. However, a huge amount of land under till in Iowa is tiled. Some 10 million acres – 40% of the state’s total cropland. Why? The soil would be otherwise unproductive if it wasn’t drained due to excessive water retention. That’s what tiling is: submerged drain pipes that take in water from the surface, and move it to a designated dumping spot. County drains manage it from there in agricultural applications.

Des Moines is it’s largest city where the water department has struggled for years to meet federal water safety requirements. Nitrate levels and the population continue to grow greater challenges annually. In the 1990s, Water Works installed one of the largest nitrate filtration systems in the world to remove the dangerous levels present in water drawn off the Raccoon River, the source of drinking water for it’s population of 500,000. Nitrate levels have soared in recent years, and the filtering plant had to be run 177 days last year, to the head of Water Works – this  translates to a phenomenal amount of system use. That 2013 cost of $900K to provide safe water for residents is chump change compared to the $80 million they need to upgrade the nitrate filtering system to keep up with supplying Des Moinians with safe water.

The civil suit pins the point source of pollution on storm runoff, tiling, and drainage ditches in 3 northern counties that are heavy agriculture areas. Water Works’ stance is that county drainage systems cannot keep channeling drainage water from drainage ditches and field tiling into the river. The city and end users should not have to pay for removing farm fertilizer waste in order to have safe water to drink, but residents are facing a 30-cents per gallon increase, because the money to cover reducing nitrate levels to the safe zone has to come from somewhere. The documents filed with the court also point out that something needs to be done to stop dumping nitrate runoff into the Gulf of Mexico. Good point.

Naturally, farmers feel blamed, but they aren’t in charge of the county drains, and they aren’t being sued. Many of these fields were tiled long ago, between the 1920s and 1940s. The farmers also do not decide how much fertilizer to apply – the people who sell them crop inputs tell them how much to use. No cover crops are used to absorb excess fertilizer, and very little use of buffer zones to stop the runoff is in place. There is a voluntary runoff reduction initiative in place, but most don’t want to deal with the added expense. Water Works is requesting permits be needed for all point sources through the Clean Water Act.

It has ag groups and farms everywhere holding their breath, and arguing that this lawsuit is frivolous. A lot of people are worried that if Water Works wins this case it will open the possibility for environmental groups and municipal water departments nationwide to jump into the fray. Re-engineering country drain systems? Profit concerns are voiced. Yet, there is an awful lot of ag chemicals and fertilizer run off in the water in the USA, and it’s all making it’s way to the sea, particularly the Gulf of Mexico via the Mississippi Watershed, which Iowa happens to be a major contributor to.

Farm Progress, the Michigan Farmer publication, calls Water Works’ suit “all wet.” And they’re not alone in voicing such opinion, but this isn’t a frivolous lawsuit, or one that will easily be tossed out of court. Water Works has down a lot of groundwork in establishing their case over the past year or two. They have been studying drainage districts and sampling runoff in the ditches. The ones drawn off of these 3 counties test excessively high in nitrates – not once, but continually.

If they were counties with more dense populations, the opposition could point their finger at golf courses, waterfowl, and residential developments. But they aren’t. Except for a few small towns in each county – it’s wall to wall farming. For all those crying foul, there are good legal points being made here that should not be translated into a case of increased costs of production. Water quality is beyond important. It is the source of life on this planet – for plants, animals, people, birds, insects, and fishy things. This lawsuit is about responsibility, and properly managing the waste of a major industry in a way that doesn’t pose a danger to the health and well being of the population and the environment.

Professor Neil Hamilton, director of the Agricultural Law Center at Iowa’s Drake University finds that both the evidence and the claims in the suit are substantial and will change the way water conservation is approached, especially in terms of the Clean Water Act and how the federal court views similar cases that arise in the future. Here’s a quote on the subject written by him:

“First lets talk about the key legal issues in the dispute. As a starting point the potential lawsuit… raises important legal issues concerning the interpretation and application of the Clean Water Act and of the authority and legal status of Iowa’s drainage districts. Many are issues of first impression – meaning the federal courts have not considered them previously. While some may believe the idea of a lawsuit is unhelpful – the claims are not frivolous or without merit, instead they raise important questions for the courts and society to address. ~~ Sixteen Things to Know About the DMWW Proposed Drainage District Lawsuit”

It’s a lengthy paper from a presentation he made at last year’s annual meeting of the American Agricultural  Law Association. That article quoted above and several supporting pieces make for interesting reading on the first link below. Hamilton says that there is only one thing that legislature or the Governor of Iowa can do here – get serious about water quality.

One thing is certain – allowing excess and leaching nitrate to runoff into waterways is not sustainable farming. It’s not even being sustainable humans, because without safe water, we will all cease to exist. Not much profit in that.

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The garden played a starring role from spring through fall in the house Amber was raised in. She has decades of experience growing plants from seeds and cuttings in the plot and pots.