Judge Dismisses Des Moines Water Works Lawsuit03/21/2017
A federal judge has dismissed Des Moines Water Works’ lawsuit against drainage districts in three northern Iowa counties the utility claimed are funneling high levels of nitrates into the Raccoon River, a source of drinking water for 500,000 central Iowa residents.
Federal Judge Leonard Strand dismissed all of Water Works’ claims against drainage districts in Sac, Buena Vista and Calhoun counties, determining that Iowa’s water quality problems are an issue for the Iowa legislature to resolve.
In dismissing part of the lawsuit, Strand wrote Des Moines Water Works “may well have suffered an injury,” but the drainage districts have no power to address them.
The Des Moines utility sought to have the drainage districts, and indirectly farmers, regulated under the federal Clean Water Act as a “point source” of pollution, much like businesses and manufacturing plants.
Bill Stowe, CEO of Des Moines Water Works said Friday the utility was determining its course of action: “We are disappointed in the ruling and the court’s unwillingness to recognize the profound water quality impacts that pollution from drainage districts has on Iowa waterways.”
The Des Moines utility said “since the ruling concluded Des Moines Water Works could not bring this lawsuit,” it doesn’t address whether “agricultural drainage tile is a ‘point source’ as defined by the Clean Water Act.”
High nitrate levels in drinking water can cause blue baby syndrome, a condition that can be fatal to infants 6 months and younger if not treated. But some studies also have linked even moderate nitrates levels to health concerns that include birth defects, cancers and thyroid problems.
The utility said last year it needed to invest about $80 million to remove nitrates to meet federal drinking water standards. It spent $1.5 million in 2015 to run its nitrate removal equipment a record number of days to ensure safe drinking water.
Read Judge Leonard Strand’s ruling here.
Strand sided with the Iowa Supreme Court, which ruled in January that Des Moines Water Works could not obtain damages from north Iowa drainage districts to reimburse the utility for the cost of cleaning excess nitrates from the water.
Through a rare procedural move known as a “certified question,” state Supreme Court justices were asked to tackle questions about state law before the federal judge issued a decision.
“Drainage districts lack the broad police powers exercised by counties and other political subdivisions,” Strand wrote, citing the Supreme Court.
It removed support for a large chunk of the lawsuit.
“The drainage districts have not unconstitutionally deprived the Des Moines Water Works of any property. The Raccoon River is owned by the state of Iowa in trust for the public,” Strand wrote, pointing to the Supreme Court ruling.
Strand said the utility promoted a “policy argument, not a constitutional one,” that is best directed to the Iowa Legislature.
Gov. Terry Branstad hailed the ruling: “I’m pleased to see an end to this costly litigation brought about by the Des Moines Water Works. From the very beginning, we’ve attempted to work in a collaborative way with our partners in the field and our communities to improve water quality in Iowa.”
Lt. Gov. Kim Reynolds said the lawsuit was “not only the wrong approach, but would hinder the positive progress we’ve made by working collaboratively in addressing water quality through the nutrient reduction strategy.”
Bill Northey, Iowa’s agriculture secretary, applauded the ruling, saying the costly lawsuit has diverted attention from conservation practices, such as cover crops, buffer strips or terraces, that farmers could use on their farms to reduce nitrogen and phosphorus losses.
“It took a lot of dollars and it took a lot of focus from what folks could do in the field,” said Northey, a Spirit Lake farmer. “They were concerned about what the lawsuit would mean for them legally and financially.”
Stowe suggested that in light of the judge’s ruling that the “state Legislature should now spend its time addressing meaningful, long-term, sustainably funded policy solutions to our serious water problems, instead of meddling in affairs best left to local communities.”
He was referring to pending legislation that would dismantle Des Moines Water Works and other independent water utilities, shifting the operations and assets under local city councils. Some Des Moines and area leaders have said the move would enable them to explore a regional operation.
Ralph Rosenberg, director of the Iowa Environmental Council, agreed the state — from lawmakers to Gov. Terry Branstad — faces more pressure to “step up” and address water quality challenges.
“We’re back to square one on who’s responsible” for cleaning Iowa’s lakes, rivers and streams, Rosenberg said, adding that the lawsuit would have helped provide clarity.
Stowe said the ruling, as it stands, makes it clear that “the Iowa Nutrient Reduction Strategy is the full path forward” to clean water and public health.
He has been highly critical of that strategy, adopted in 2013 to cut by 45 percent the nitrogen and phosphorus levels leaving the state and contributing to the dead zone in the Gulf of Mexico. It’s an area the size of Connecticut that’s unable to support aquatic life each summer.
The strategy lacks a deadline for achieving its goals, critics say, and lacks substantial funding to reduce nutrient losses. It also relies on voluntary compliance by farmers.
Northey said Iowa farmers and cities are working together on projects across the state to improve water quality. The agency announced 12 urban-rural new water projects this week that will join work in 22 watersheds.
“There’s a lot of work that’s quietly been done that might get more attention now that the Des Moines Water Works lawsuit isn’t sucking up all the oxygen and attention,” Northey said.
Northey said he’s hopeful lawmakers would push forward with one of several legislative funding proposals that boost water quality spending.
Reynolds said the governor’s office would work with lawmakers “to finalize a plan that will continue to grow our water quality efforts.”
Environmental and ag groups have pushed for the state to raise the sales tax three-eighths of 1 cent and dedicate that money to improving Iowa’s natural resources, including water quality.
With 23 million acres of corn and soybeans in Iowa, experts have said the state’s water quality challenge is massive, potentially costing up to $1.2 billion annually for several years.
Rolland Schnell, president of the Iowa Soybean Association, said the lawsuit has been divisive.
“We encourage the utility to re-engage in a cooperative approach to make real and long-lasting improvements in water quality,” Schnell said.
Some environmental groups said the ruling won’t change their concern about nutrient losses.
“We will continue organizing and mobilizing thousands of everyday Iowans all over the state to rein in the power of corporate agriculture and clean up the water pollution caused by livestock factory farms,” said Hugh Espey, director of Iowa Citizens for Community Improvement.
Stowe said the utility’s board would review its options, given the ruling.
Source: The Des Moines Register