Iowa Farmers Ponder Effects of Des Moines Water Works Lawsuit

May 9, 2015 07:00 AM
Iowa Farmers Ponder Effects of Des Moines Water Works Lawsuit

Planting season is in full swing for Brent Drey and farmers like him who raise the corn and soybeans that feed northwest Iowa and points beyond.

It's been mostly business as usual this spring, Drey said, but he and others can't help but wonder what the future holds for their industry as the effects of a lawsuit filed by a metro Des Moines utility against the water drainage districts in three northwest Iowa counties begin to take root, the Sioux City Journal reported.

"Even if it is decided five to 10 years down the road, it's going to have huge ramifications for anyone directly or indirectly involved in production agriculture," said Drey, a 22-year-old third-generation farmer who grows corn, beans and popcorn on 2,000 acres near Sac City.

In March, Des Moines Water Works sued the boards of supervisors of Buena Vista, Sac and Calhoun counties, claiming that drainage districts within their borders are violating the federal Clean Water Act by not doing enough to reduce the amount of nitrates in water that runs into the Raccoon and Des Moines rivers and their tributaries, the primary source of water for Iowa's capital city.

Because of those high nitrate levels, the utility has had to increase the use of costly filtration methods to remove the nitrates, which occur naturally in Iowa's rich soils but also are traced to commercial fertilizers and livestock manure applied to fields.

If the levels remain high, utility officials say, it will increase the need for a new water treatment system costing $75 million to $175 million. If left untreated and consumed at elevated levels, nitrates can cause serious health problems, such as leukemia and non-Hodgkin lymphoma.

Legal experts say the lawsuit, filed in U.S. District Court in Sioux City, could serve as a litmus test in the debate over whether agricultural runoff should remain exempt from federal clean water standards.

The Des Moines utility wants federal and state regulators to treat drainage districts much like sewage plants and factories that must apply for permits to discharge into public waterways.

Iowa Agriculture Secretary Bill Northey argues litigation is not a constructive way to address the state's water quality. While the suit may have a low likelihood of success, it could drag on for years, leaving producers in indefinite limbo.

"I've talked to farmers who are very nervous about the consequences of this," Northey said. "There's a huge can of worms that's been opened up from a farmers' perspective. It makes people nervous, and I don't blame them."

In the meantime, farmers will go on raising crops and using fertilizer.

It's hard to say if they will adjust practices not only in how they grow their crops, but also in how they drain their fields and what methods they add to existing steps taken to reduce nitrate runoff. Farmers also worry that government agencies might step in and place new regulations on agricultural runoff.

"I don't think it'll have a direct impact until this case is finalized," said John Torbert, executive director of the Iowa Drainage District Association, which represents organized drainage districts in Iowa. "The decision of the court could certainly impact not only drainage districts in Iowa but drainage districts across the United States."

One thing is certain, the use of nitrates and manure to fertilize fields will not end.

"If we're going to feed the world, we're going to have to use nitrogen to grow corn," said Rick Fonken, a field sales agronomist at Farmers Cooperative in Lytton.

Farmers defend the variety of conservation practices they currently employ. For example, Drey said he practices minimum- or no-till planting and contour farming, plants cover crops, has terraces, buffer and filter strips and 70-75 acres of wetlands. All those measures are taken to protect against soil erosion as well as soak up and remove nitrates from groundwater before they enter streams and rivers. Those conservation efforts will continue and likely increase, Drey said.

"This lawsuit, I don't think, has changed the mindset of farmers out here," he said. "We're already doing a lot. I'd be lying if I said every farmer employed those conservation practices. But 99 percent of farmers in Sac, Buena Vista and Calhoun counties are concerned about protecting the environment."

Tom Oswald, president of the Iowa Soybean Association and a corn and bean farmer in Cherokee County bordering Buena Vista County, noted the state's nutrient reduction strategy for agriculture is just two years old. Since the initiative was established, more than 1,600 Iowa farmers have invested $4.2 million to implement new practices on their farms to better protect water quality.

"Now they declare it a failure without giving it a chance to work," Oswald said of the Des Moines Water Works. "I think they're focused on the notion that voluntary doesn't work so we're going to throw the regulatory book at you."

While recently speaking to the Journal on his cellphone, Oswald, a no-till farmer, applied a small amount of fertilizer to a cornfield near Marcus for the third time since last fall. Multiple, smaller applications of fertilizer promote better plant uptake, reducing the potential for nitrate loss through leaching.

Despite their best efforts, he said, farmers are often at the mercy of unpredictable weather, such as heavy spring rains or drought, which can lead to elevated nitrate levels in rivers and streams.

Des Moines Water Works CEO Bill Stowe said he can appreciate the efforts that have been made, and the utility has been involved for years with commodity associations and environmental groups working to reduce nitrate levels. It hasn't been enough, he said.

"At the end of the day, we weren't seeing any real return on this," Stowe said. "We viewed litigation as really our last resort to getting something done."

In the past three years alone, Des Moines Water Works has spent hundreds of thousands of dollars removing nitrates from water, according to the lawsuit. Stowe said it's time for drainage districts to become more involved in reducing nitrate runoff.

"They're moving it off land in their district without any real thought toward downstream communities," he said. "There is a fundamental shirking of responsibility by pushing the cost and pushing the health risk downstream."

There are more than 3,000 drainage districts in Iowa, most of them in the northwest. The hundreds of miles of drainage tiles turned what once was swamps and wetlands into some of the world's most productive farmland.

Once a district is set up, it falls under the authority of the county board. But Iowa law gives county supervisors limited authority to govern drainage districts, and the county has no authority to tell farmers within the districts what types of conservation practices to employ or order them to cut nitrate use, said Kristine Tidgren, staff attorney at the Center for Agricultural Law and Taxation at Iowa State University.

The Iowa Supreme Court also has held that drainage districts can't be sued for monetary damages in certain circumstances, Tidgren said.

County board members in Buena Vista and Sac counties who were contacted said they had been advised by their attorney not to discuss the lawsuit. Chuck Becker, a Des Moines attorney hired by the three counties, did not return messages seeking comment.

Torbert, of the Iowa Drainage District Association, said it makes no sense to sue drainage districts because they have so little authority. It would make more sense, he said, for Des Moines Water Works to push for the Iowa Department of Natural Resources or U.S. Environmental Protection Agency to change existing regulations.

Stowe said those discussions have taken place with both government agencies and others, but with few results.

That's probably fine with farmers, who generally prefer the voluntary conservation methods over government regulations, Fonken said.

"In the end, we're afraid the federal government is going to make a lot of new laws and regulations, and that's going to cost farmers more," he said.

A farmer's willingness to spend money on conservation can depend on commodity prices. With corn prices drastically lower than they were two or three years ago, many producers must find that balance between profit and cost.

From a farmer's perspective, Drey said that in decades past, conservation practices may have been the first thing farmers cut back on when crop income dipped, but he believes they've become standard procedure nowadays.

"I don't think farmers today are as apt to cut out conservation practices," Drey said.

As the lawsuit winds its way through the legal system, farmers will continue to grow crops. They'll continue to apply fertilizer. And they'll continue to seek better ways to keep harmful chemicals from entering waterways. Farmers don't view the lawsuit positively, but Drey said one good thing is that it raises awareness among them that more can be done to cut nitrate runoff.

"The farmers you least expect to do these things, I think they'll take a second look at it," he said.--Nick Hytrek, Sioux City Journal; and Dave Dreeszen, Sioux City Journal

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Spell Check

Urbandale, IA
7/13/2015 02:32 PM

  Where is the data to back up the claim by the DMWW?

Roger Scott Huisenga
Sibley, IA
5/11/2015 08:44 AM

  Does De Moines dump the nitrates back in the river? Someone down stream should do the same to the Water works. Find a use for the nitrates and sell them instead of dumping them back into the river.

Paul Halferty
Ottumwa, IA
5/11/2015 12:45 PM

  I believe that no one involved with agriculture should trade with businesses in a city which bites the hand which feeds it.