Iowa Farmers Won a Water Pollution Lawsuit, But at What Cost?

A utility's novel attempt to force farmers to curb pollution in rivers failed. Now the utility is on the hook for millions of dollars to protect the region's drinking water.
by | May 3, 2017
A farmer carries a bag of corn seed to his planter while working a 40-acre field in Iowa. (AP/Tim Hynds/The Sioux City Journal)

A water pollution lawsuit that pit Iowa’s capital city against the state’s iconic farmers made the thorny issue one for lawmakers to address. But the legislature wrapped up its session last week without taking action.

That leaves Des Moines Water Works, the utility that filed the lawsuit, and farmers in almost exactly the same place they were before they went to court: The utility faces bigger bills to remove farming-related chemicals from the Raccoon River, its source of drinking water, and the farmers still aren't required to reduce pollution from their farms.

“The court’s ruling noted that this policy issue is left up to the Iowa legislature to resolve, but it didn’t happen this year, so we’re disappointed in that,” says Laura Sarcone, a spokeswoman for the Des Moines Water Works. “Water quality in Iowa, especially for central Iowa, will continue to be serious and escalating. The lawsuit was an attempt to protect our ratepayers [and improve] public health and quality of life.”

Now the water utility, which serves half a million people in Des Moines and its suburbs, must build a new $80 million facility that can double its capacity to filter out nitrates from the river water.

The federal government requires utilities to filter out nitrates because, in extreme cases, nitrate-rich water can be fatally toxic for babies, depriving them of oxygen. In waterways, nitrates can cause algal blooms and "dead zones" for marine life.

Nitrates are a colorless, odorless and tasteless form of nitrogen that dissolve in water and are often found in fertilizers. In Iowa, 92 percent of them are found in rivers and lakes and came from agriculture and other unregulated sources. That's why the Des Moines utility took farmers to court: in hopes of regulating farms and the runoff that they create.

Agricultural runoff is exempt from the federal Clean Water Act, but the utility argued that that exemption doesn’t apply in this case. Most of the farms in the Raccoon River watershed are actually drained wetlands, and that drainage, according to the utility, converted agricultural runoff into point-source pollution, which is regulated by the Clean Water Act. Point-source pollution is essentially pollution that can be traced to a single source, such as a drain or a pipe.

Their argument is one of several reasons the lawsuit was so novel -- as Governing previously explored -- but the Iowa Supreme Court struck it down and ruled that the tiny government agencies the utility sued are shielded from lawsuits.

The utility decided to drop the case rather than pursue an appeal, but at the time, it was fighting for its survival in the legislature. Senators had advanced a bill that would’ve broken up Des Moines Water Works and given its assets to municipalities in the area. That proposal lost steam after the lawsuit ended.

While the legislature did not break up the utility, it also did not develop a long-term strategy for reducing water pollution.

A state-developed plan calls for a 45 percent reduction in agricultural pollution, but it relies on farmers to voluntarily make that happen. Iowa won’t meet the goal without mandatory participation, says Sarcone of Water Works.

The legislature also passed measures to shut down a 30-year-old research center on sustainable agriculture at Iowa State University. The school’s Leopold Center helped develop many of the practices that the state is relying on to reduce water pollution, says Carol Brown, a communications specialist at the center. It will close in July unless the governor line-item vetoes those provisions in the budget.

No one in the legislature has claimed responsibility for the provision, and the Leopold Center previously hadn't drawn any major criticism.

Meanwhile, the two Republican-controlled chambers of the legislature couldn’t agree on how to improve water quality, even though it was a top priority for outgoing Gov. Terry Branstad, who is expected to resign shortly to become the U.S. ambassador to China. The House and Senate disagreed over the size of the overall package, whether to authorize bonding for water quality projects and how to distribute the new funds.

Lt. Gov. Kim Reynolds, who will succeed Branstad, said water quality “will continue to be a priority of mine” in next year’s legislative session.

Kirk Leeds, CEO of the Iowa Soybean Association, opposed the utility’s decision to file a lawsuit, calling it a "major distraction," but he also says the legislature’s inaction this year was “another missed opportunity to do something more significant in water quality.”

While Leeds recognizes that farmers and the state have taken steps to address the pollution problem, he says, "sooner or later, the Iowa legislature is going to have to find and dedicate long-term funding. There are investments that need to be made because farmers don’t benefit directly from edge-of-field improvements." Bioreactors, essentially underground pits filled with wood chips that use natural processes to break down nitrogen, can cost as much as $15,000 a piece, he notes.

But any new money, Leeds says, should be targeted to specific "hot spots" and based on what local actions are needed. Otherwise, limited resources will be spread too thinly.

The soybean association and the Des Moines Water Works do agree on at least one thing: the need for more data on water quality to be collected and published. Sarcone, from the utility, says the public should be able to see whether different approaches -- like the installation of biodigesters or the planting of cover crops during the winter -- have a measurable impact on the pollution levels of rivers and streams.

The utility, of course, is keeping close tabs on the level of nitrates in the Raccoon River. Its nitrate removal system was designed to be used on rare occasions, but in 2015, the pollution levels were so high, it had to run the system on 177 days.

Things have been better in the last two years. Heavy rains have diluted the nitrates, and Des Moines only used its nitrate-removal system 65 days last year. This year? Zero.

But that isn’t necessarily good news all around.

Even if the concentration is lower, the increased water flow that results could increase the total volume of nitrates flowing downstream to the Gulf of Mexico. In May 2016, the level of nitrogen in the Gulf of Mexico was 12 percent higher than the average over the previous 25 years. The "dead zone," where low oxygen levels prevent most organisms from living, was approximately the size of Connecticut.