Ag's Draining Water Fight - 1

Des Moines Water Works Clashes With Iowa Farmers; Lawsuit Creates Conflict on Clean Water

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
Connect with Todd:
Randy Souder, a farmer from Calhoun County, Iowa, is among the farmers in the Raccoon River watershed in Iowa caught up in the litigation between Des Moines Water Works and local drainage districts and counties. He's concerned about the potential regulatory risks farmers could face from the litigation. (DTN photo by Todd Neeley)

ROCKWELL CITY, Iowa (DTN) -- Iowa farmers and ag groups would much rather work things out with leaders at Des Moines Water Works over a beer and lock details in with a handshake.

Instead, the water utility's legal action, which seeks to regulate nutrient runoff from farms, likely will take years to resolve and has more farmers willing to dust off their boxing gloves.

The utility's board of directors moved in March to file a federal lawsuit against 10 drainage districts in Buena Vista, Calhoun and Sac counties, all of which are northwest of Des Moines and part of the Raccoon River watershed. The lawsuit also names county supervisors.

If successful, the legal action could lead to regulating agriculture as a pollution point source in Iowa and perhaps across the country if legal fever spreads. It could require farmers to pay for expensive permits for normal farm practices, as well as restrict the use of fertilizer or other farm chemicals.

At the center of the issue is the extensive subsurface tile drainage that helped turn the Raccoon River watershed northwest of Des Moines into one of the most productive cropping and livestock areas in the country. The tiling also allowed farm nutrients to move down stream. The lawsuit specifically declares tile drainage pipes and ditches operated by the drainage districts as "point sources which transport high concentration of nitrates contained in groundwater."

The Raccoon River drains 3,625 square miles, including some 2.3 million acres in west-central Iowa. Portions of 17 counties supply the river. Row crops including primarily corn and soybeans account for about 85% of the land area in the North Raccoon River, according to the Iowa Department of Natural Resources. Some 77% of that land is tiled-drained above Sac City. In the South Raccoon River area some 61% of the land is row crops with about 42% of it tile-drained north of Redfield.

The rich soil in the region is part of the water-quality challenge. Soil mineralization and nitrogen fertilizer contribute to at least half of the total nitrates ending up in the water. Livestock in the watershed account for anywhere from 13% to 17% of the nitrates.

Des Moines Water Works wants tighter regulations to limit runoff. Iowa's voluntary nutrient reduction strategy lacks any timeframe for reducing nutrient runoff and declines to set any standards or require certain conservation practices.

The litigation leaves farmers concerned about the regulatory risks they may face. Calhoun County Farmer Randy Souder wants to install a bioreactor in one of three counties where drainage districts and county supervisors have been sued. The bioreactor is a large pit filled with wood chips or similar material that filters tile drain waters before they enter a stream, reducing nitrate levels in the process. It is promising technology that could help solve the state's nutrients runoff problem. Now Souder questions the investment.

"Right now I'm going to put it on hold until we know a little more about what is going on," Souder said. "If we're going to go through a bunch of regulations and stuff do I want to dump 30, 40 grand into something?"

An Iowa State University study from 2012 found farmers in the Raccoon watershed region could reduce nitrate loads by 45% to 55% using the combination of nitrogen rate management and wetland restoration. Nitrogen management alone could reduce loads by 18%, according to the study.

Reaching nutrients reduction levels sufficient to make source waters safer, however, likely would require a wide adoption and variety of conservation measures. That includes edge-of-field bioreactors to filter tile lines and to keep nutrients in fields, cover crops, buffer strips and other measures.

Roger Wolf, director of environmental programs and services at the Iowa Soybean Association, said the lawsuit undermines conservation efforts.

"The reality is we all want clean water," he said. "What we've learned is just how big of a challenge addressing nutrients is. We're dealing with droughts then flooding, changing cropping systems. It's a big mountain...Citizens and various groups are going to have to invest in legal counsel on both sides. I'm not optimistic that is going to be resolved in the short-term."

Not all producers have backed off conservation.

"I'm not going to necessarily change what my focus has been because of the lawsuit," said farmer Brent Johnson, who operates in Calhoun County near Manson. "If more costs are absorbed it does nothing but pinch the Iowa farmer more yet. You can argue better managers find a way through it, but it is the small guy who will have a hard time with future fees.

"Comes back to you either confront or you collaborate -- which is the Iowa way to do things."

BEYOND IOWA

Iowa Secretary of Agriculture Bill Northey said fellow state ag secretaries know what's at stake.

"They recognize it's not just about 10 water districts, this is about the Clean Water Act and what is regulated by the Clean Water Act and EPA," he said. "It is as relevant to them as it is to us. They all seem to get this and see it has precedent-setting consequences to it."

Northey said he's continuing on with efforts to implement the state's voluntary nutrient reduction strategy.

"We could potentially end up with hoops that do nothing to address nutrients runoff," Northey said. "People would end up feeling as if it is all solved. You spend a lot of time disappointing people. It has the potential to take you off your game in engaging farmers out there."

Dean Lemke, principal author of Iowa's strategy and now nutrient management and environmental stewardship director for the Iowa Agribusiness Association, said some 80 farm families in Sac, Calhoun and Buena Vista counties at some point will be funding the defense through drainage district fees.

"It already falls heavily on the landowners," he said. "The money to defend the case will come from assessing land involved in the case."

Farm groups and other drainage districts have created a defense fund to help mount a legal defense against the utility.

Because the suit could ultimately affect all Iowa farmers, those opposed to the legal action have called on the state to intervene because of the costs expected to mount on rural areas.

Lemke is on edge. He carefully chooses his words for fear he may be dragged into court. Lemke is equally concerned about the feasibility of implementing what could eventually be a permit system for about 88,000 Iowa farmers.

"Farming doesn't fit a command-and-control approach," he said. "That's what a permit is. If the waterworks people want to go down this path, we're talking about a huge, huge scope. It inherently will become one-size-fits-all, which becomes one size fits none."

PLAYING POLITICS

Don Kass, Plymouth County supervisor and pork farmer from Remsen, Iowa, is now a board member for Iowa Partnership for Clean Water, a group formed in opposition to the lawsuit. The partnership launched a publicity campaign across Iowa aimed at informing the public on what farmers do to protect water. The group was formed primarily to counter the lawsuit and to promote environmentally friendly practices in agriculture.

County officials named in the lawsuit are not covered by county insurance and any legal exposure likely far exceeds their $100,000 bonding, he said, meaning they may have to fund their own defenses. As a result, neighboring counties have been stepping up to raise funds.

"No one is going to win in the end," Kass said. "They aren't really going to clean up water but will cost water districts more money."

Kass added, "Really the only thing I see coming out of this is more government regulation."

The next installment of this four-part will look at the details of the water utility's lawsuit and legal issues that surround it.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

(CC/GH/CZ)

Todd Neeley