Lawsuit threat stirs up national clean water debate

Farm Forum

When lawmakers wrote the Clean Water Act, they specifically exempted agricultural runoff from federal permitting requirements. However, several new legal cases aim to narrow or repeal that exemption in what some agricultural advocates say is stirring the national debate over whether or not farmers are voluntarily doing enough to protect water quality.

One of the most recent is a pending lawsuit from the Des Moines Water Works against three Iowa counties. Bill Stowe, CEO and general manager of the Des Moines Water Works, gave notice that he intends to sue Sac, Buena Vista and Calhoun counties because they manage 10 drainage districts that are allegedly contributing to high nitrate levels in the Des Moines and Raccoon rivers. These waterways serve as primary sources for the Des Moines water supply.

Nitrates are naturally occurring in many soils, but at high levels, they have been linked to so-called “blue-baby” syndrome, which deprives an infant of oxygen and can result in suffocation.

Stowe said the Water Works is “taking this decisive action to underscore that the degraded condition of our state’s source waters is a very real problem, not just to Des Moines Water Works, but to the 500,000 customers we serve…..”

Stowe claims this lawsuit is not directed at individual farmers. Yet, farmers and agribusinesses have invested millions of dollars to protect water quality under the Iowa Nutrient Reduction Strategy, which Stowe said was a failure.

“Since its announcement, we have suffered through record nitrate concentrations in both the summer of 2013 and winter of 2014.” Stowe also says the Des Moines Water Works has continuously run its denitrification treatment facilities since Dec. 4.

In 2013, Des Moines Water Works incurred approximately $900,000 in treatment costs and lost revenues. However, what he did not mention is that the same treatment center did not run at all for the previous five years – during a time of record corn and soybean production.

Little wonder then, that farm groups came out swinging. Iowa Soybean Association President Tom Oswald said Stowe’s comments about the Nutrient Reduction Strategy revealed “a startling disconnect from the scope and complexity of non-point water quality issues.”

“Claims by Des Moines Water Works that we have a water quality crisis in Iowa is sensationalistic at best and, at worst, dishonest,” Oswald said, citing state and federal data that found nitrate concentrations decreased by nearly 25 percent due to refinements of cropping systems.

“There is no evidence that the regulatory scheme ultimately sought by Des Moines Water Works will improve water quality as it relates to non-point source issues,” Oswald added. “There is, however, ample evidence that conservation practices tailored to specific farms and watersheds do. Just last year, 2,400 farmers and land owners invested $22.5 million on conservation practices to prevent soil erosion and improve water quality, of which $13 million came out of farmers’ own pockets.”

Several sources who asked not to be identified said they were somewhat mystified by Stowe’s motives – especially when you consider that, after removing nitrates, the facility dumps them back into the water supply for other downstream municipalities to deal with.

“Symbolically, it’s a troublesome issue for me,” Stowe said when first questioned by the Des Moines Register about nitrate-dumping practices. “Frankly, we’re saying to the single farmer, ‘Please don’t do this,’ and yet we’re imitating the behavior we’re trying to avoid,” the Register reported in June of 2014.

A closer look at the 17-page “Notice of Intent to Sue” indicates that the Water Works may be attempting to find a court willing to find that high nitrate effluent from artificial drainage systems should be subject to federal National Pollutant Discharge Elimination System (NPDDES) permits, “for the simple reason that the effluent is not a stormwater discharge, but rather is composed of artificially drained groundwater.”

However, in 2013, the U.S. District Court for the Eastern District of California, ruled in Pacific Coast Federation of Fishermen’s Associations v. Glaser that tile drains are not a point source of pollution- even if the outflow contains possibly polluted groundwater. The court stated that “Congress used the broad term ‘return flows from irrigated agriculture’ because it intended to exempt drainage from farms practicing crop-producing agriculture facilitated by irrigation, rather than focusing on what the components of a particular flow are on any given day,” according to an American Bar Association review of the case.

AFBF’s Senior Director of Regulatory Relations Don Parrish says Congress was very explicit in stating that agricultural stormwater is exempt. “Along those lines, we don’t see they have a legal leg to stand on,” he explained about the Water Works case. Instead, Parrish suggested that the litigation will be focused on trying to narrow the definition of what waters can be exempt rather than actually trying to limit nitrates in the water supply.

“Does he really think a permit is going to fix this?” Parrish asks about Stowe’s legal action. “The answer is ‘no.’”