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[Source: AgriNews and Des Moines Register, 07.2016 | Keywords: Water, Water Quality, Iowa]

Over 1 1/2 years ago, Des Moines Water Works filed a lawsuit against drainage districts in three northwest Iowa counties, claiming that underground tiles are acting as conduits, funneling high levels of nitrates into the Raccoon River, a source of drinking water for 500,000 central Iowa residents.

This lawsuit may have broad ramifications for state and U.S. farmers, who environmentalists complain have been too slow to embrace meaningful conservation practices. Some say the outcome could, for the first time, indirectly require farmers to meet federal clean-water regulations that limit nutrients, such as nitrates and phosphorous that enters U.S. waterways. The federal government now considers water from farmlands as surface runoff and exempts it from oversight.

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.

Nitrates are forms of nitrogen found in natural ecosystems and are essential plant nutrients. In excessive amounts, nitrates can cause significant water quality problems. The federal government requires that nitrates in drinking water not exceed 10 milligrams per liter – a level that, without treatment, can be deadly to infants 6 months and younger. The annual median milligrams per liter of nitrates in Iowa streams were in the 1-2 range in 1905, 4 in 1940 and 9 today.

Farm leaders say that voluntary compliance is a much better solution than more rules and regulations on agriculture. They feel a costly and burdensome lawsuit won’t necessarily fix Iowa’s water-quality problems. They also say it deflects from work currently underway to reduce pollutants, such as building wetlands, terraces and buffer strips.

One of the challenges of reducing nutrients in Iowa waterways is the massive scale of agriculture in Iowa. There are 23 million row crop acres in Iowa and 88,000 farms.

Iowa activated a Nutrient Reduction Strategy in 2013 to reduce the loss of nitrates to waterways. Developed by the Iowa Department of Agriculture and Land Stewardship, the Iowa Department of Natural Resources and Iowa State University, the Nutrient Reduction Strategy includes an array of nutrient management, land use and edge-of-field practices that work to reduce overall nitrate loss to Iowa waterways.

The Iowa Nutrient Reduction Strategy is a science-based initiative developed to reduce nitrate and phosphorus loads in Iowa waterways by 45 percent. Funded by the Iowa Legislature, the Iowa Nutrient Reduction Strategy maps out the rural and urban factors contributing to Iowa’s water quality and offers solutions and practices for
Iowa’s farms, businesses and communities.

This voluntary program has been praised by the Environmental Protection Agency (EPA) and promoted as a model for the rest of the country. The collaborative approach between farmers and local organizations has led to almost $20 million being invested in the planning and implementation of conservation activities that are supported by science and appropriate for local conditions.

The Des Moines Water Works is seeking damages of more than $1.4 million it has spent for increased filtration methods to remove the nitrates, which occur naturally in the soil but are also traced to commercial fertilizers and livestock manure applied to fields. If levels remain high, Water Works officials have stated they will need a new water treatment system costing $75 to $175 million.

The potential trial of the Des Moines Water Works lawsuit against three drainage districts in Iowa over nitrates in the drinking water has been delayed until June 2017. The lawsuit is currently in the motion state.

The drainage districts are seeking a summary judgement against the utility’s claims under the Clean Water Act. The Water Works has sued the boards of supervisors for Sac, Calhoun and Buena Vista counties as trustees over drainage districts. The basis for the lawsuit is nitrate pollution in the Raccoon River, which supplies drinking water to Des Moines.

The drainage districts must demonstrate to the judge that the facts are undisputed and in their favor as a matter of law. By contrast, Des Moines Water Works needs to demonstrate that there are material facts in dispute. Those material facts would then impact how the law is applied.

If the drainage districts win the motion, the case is concluded at the district court level and is then subject to appeal. If the water system wins on the motion, the case proceeds further toward trial. The burden rests with the drainage districts.

To learn more about the lawsuit or to read pleadings, briefs and other legal materials, visit the Iowa State University Center for Agricultural Law and Taxation website at calt.iastate.edu.

Source: AgriNews and Des Moines Register