Water utility sues three Iowa counties over farm runoff

A trio of Iowa counties is suiting up for a potentia lly costly legal battle that could expand a key definition in the federal Clean Water Act. Des Moines Water Works (DMWW) is suing the boards of supervisors in upstream Buena Vista, Calhoun and Sac counties whose economies rely heavily on agriculture to have their drainage districts declared "point sources" of nitrate pollution. "It is an unprecedented suit in terms of the nature of the claims that the water works is making, and it involves several questions that haven't been liti gated before," said Neil Hamilton, who heads the Agricultural Law Center at Drake University. Point sources under the federal Clean Water Act (CWA) include indus trial drainage pipes and factory outfalls but not agricultural runoff, which is considered a non-point source and is not regulated by the law. The Board of Supervisors in the three counties serve as trustees of 10 drainage districts named in the lawsuit. In its lawsuit, the water works alleges that drainage district infrastruc ture constitutes "'discrete conveyances' of nitrate pollution under the CWA that are not exempt from regulation and are required to have an NPDES (Na tional Pollutant Discharge Elimination System) permit." The lawsuit was filed in U.S. District Court for the Northern District of Iowa on March 16. DMWW also claims it has spent millions of dollars removing nitrates from its water sources, primarily the Raccoon River, which drains the three counties being sued. DMWW antici pates spending $76 million to $183.5 million by 2020 to design and build a new nitrate removal facility, according to company officials. According to DMWW's lawsuit, health concerns associated with nitrate contamination include blue baby syndrome and potential disruption of the endocrine system. DMWW is the state's largest water utility, serving about 500,000 customers in the Des Moines area. There are more than 3,000 drain age districts in Iowa, according to the nonprofit Iowa Drainage District As sociation (IDDA), and an estimated 9 million acres 26 percent of the state's land mass is drained. The three boards of supervisors aren't comment ing in advance of filing their response, due by May 22. However, Sac County supervisors voted on March 31to set up a "special revenue fund and special expense fund" to support their defense, according to their meeting minutes. The IDDA is also soliciting donations from counties throughout the state for a defense fund. John T. Torbert, the association's executive director, expects the IDDA to play a significant role in defending the counties. "Therefore, we are not making much public comment on it," he said.

So far, at least two north-central Iowa counties Winnebago and Wright have each pledged $5,000 a year for up to three years to help Buena Vista, Calhoun and Sac super visors defend their boards.

"I think the general consensus is that we'd like to support this, said Winnebago Supervisor Terry Durby, "because we believe that it may be a starting point and is going to trickle down to affect other counties." Rick Rasmussen, a Wright County super visor, explained, "We've all got to stick together." He said his county's contribution will come from drainage district funds, not the taxpayers.

Kristi Harshberger, general coun sel for the Iowa State Association of Counties, said if the water works were to prevail "then there would be similar claims from other places. Everybody would look upstream to place blame whenever they're having problems with their water."

The lawsuit raises many unan swered questions, said added, includ ing whether supervisors can be held liable for what they do as trustees of drainage districts and whether drainage districts can even be held responsible for pollution.

Drainage districts have no control over what fertilizers farmers use, she explained. "I think it's going to be very difficult to prove that they (drainage districts) should somehow be responsible for that when I don't know how they would monitor, control or police that given the powers they currently have under the law."

Kristine Tidgren, staff attorney for the Center for Agricultural Law and Taxation at Iowa State Univer sity, said, "I think it's an uphill battle for this case to be successful for the plaintiffs for multiple reasons." If the water works wins, there's no system in place for drainage districts or farmers to request an EPA discharge permit. "But the issue is important enough to a broad enough number of stakeholders that it definitely is a case that many people are watching."