Iowa has become ground zero in whether the courts or voluntary efforts can improve water quality.

Just a few weeks ago a U.S. District Court judge in Iowa punted on the first decision regarding the Des Moines Water Works (DMWW) vs. counties and drainage districts.

The Court wrote “I would have to reject the thoughtful, creative, novel, and well-argued positions of DMWW, as unsupported by Iowa law and unlikely to be adopted by the Supreme Court, if I did not certify these questions.”

The Des Moines Water Works is making 'novel arguments' in its case against upstream rural counties regarding ag's impact on the city water supply.

The Court writes that DMWW’s state law arguments are “novel” and this case is one of first impression. (Cases go back a hundred plus years on this issue, and all reach the same result in favor of the drainage districts and farmers.) The fight is over whether the counties and drainage districts have absolute immunity from being sued.

The Court ignored the counties and drainage districts’ arguments that by certifying legal questions to the Iowa Supreme Court this would “...require the Iowa Supreme Court to revisit well-settled precedent regarding drainage district immunity in tort, not novel questions of state law.” 

Continued criticism

Earlier this year, the DMWW criticized efforts to improve water quality while U.S. Department of Agriculture rolled out a host of new efforts to help Iowa's farmers and livestock producers conserve water and soil resources and improve nutrient management practices on the state's 30 million acres of farmland.

The DMWW fired off criticism to Iowa agricultural producers on its increasing costs to operate its nitrate removal facility. In 2015, they reported that it ran for a record 177 days, eclipsing the previous record of 106 days set in 1999. Operational costs for denitrification in 2015 totaled $1.5 million for delivering drinking water to the 500,000 central Iowa customers.

DMWW filed a federal complaint in the spring of 2015 against the Boards of Supervisors of Sac County, Buena Vista County, and Calhoun County, in their capacities as trustees of 10 drainage districts, for the discharge of nitrate pollutants into the Raccoon River. The lawsuit challenges that farmers in these counties should abide by the Clean Water Act. Specifically laws require that “point sources” discharging into rivers must have permits under the National Pollutant Discharge Elimination System (NPDES) permit.

The complaint seeks to declare the named drainage districts as “point sources,” not exempt from regulation as farms currently do, and seeks to require farms in these counties to have a permit under federal and Iowa law, just as any other business that discharges in the waters of Iowa.

The Des Moines Water Works claims the increase in river nitrate levels is “attributable to upstream agricultural land uses, with the largest contribution made by application of fertilizer to row crops, intensified by unregulated discharge of nitrate into the rivers through artificial subsurface drainage systems,” the utility company said in a Jan. 4 statement.

“Iowa’s political leadership, with influence from industrial agriculture and commodity groups, continue to deny Iowa’s water quality crisis,” says Bill Stowe, chief executive officer and general manager, Des Moines Water Works. “Defending the status quo, avoiding regulation of any form, and offering the illusion of progress and collaboration places the public health of our water consumers at the mercy of upstream agriculture and continues to cost our customers millions of dollars.”

Funds rolling in for farmers

But collaboration is where federal and state funds continue to be used and expanded.

The goal in Iowa with new funds announced Jan. 5, said USDA secretary of agriculture Tom Vilsack, is to help the state replicate the totality of a watershed-based plan such as USDA's Mississippi River Basin Initiative across Iowa's major state watersheds, with a concerted, science-based approach.

Findings from a 2014USDA report show that conservation work on cropland in the Mississippi River Basin, including Iowa cropland, has reduced the amount of nitrogen and phosphorus flowing to the Gulf of Mexico by 18% and 20%, respectively.

Vilsack said USDA will make capital improvements to water and wastewater treatment facilities in small communities by expanding access to the $25 million in loans and grants currently offered to Iowa, for a $250 million investment over the next 10 years.

 “With regard to technical assistance, if our appropriations remain at the current funding level for the next decade, USDA will be able to provide $660 million in targeted assistance through USDA's Natural Resources Conservation Service,” Vilsack added.

USDA announced Jan. 5 it will expand access to USDA's signature conservation programs for Iowa producers, making available up to 85,000 additional acres for sensitive lands, equivalent to roughly a $175 million investment into the state's land resources, and better target grants and loans for technical assistance and capital improvements, while working with state partners to more closely align priorities in an improved "watershed-based strategy" for nutrient management.

USDA said it will accelerate the process of working with Iowa's government, land-grant institutions and conservation partners to develop an ecosystem market program to better coordinate the efforts between public and private sector partners focused on nutrient management. USDA also said it plans to help identify an independent body to track coordinated investments, monitor results, and report to the public and stakeholders.

Iowa itself continues to make investments in water quality improvements. In 2015, more than 1,800 farmers committed $3.5 million in cost share funds to install nutrient reduction practices in each of Iowa’s 99 counties.

In addition, 29 demonstration projects are currently located across the state to help implement and demonstrate water quality practices. This includes 16 targeted watershed projects, 4 projects focused on expanding the use and innovative delivery of water quality practices and 9 urban water quality demonstration projects. More than 100 organizations are participating in these projects. These partners will provide $16.72 million dollars to go with the $11.11 million in state funding going to these projects.