Iowa utility’s lawsuit takes new stab at old nutrient problems

By Annie Snider | 01/29/2015 01:20 PM EST

A potentially precedent-setting lawsuit initiated earlier this month is once again ripping open the debate over how best to stem the flow of nutrients from America’s farms and animal operations into the country’s rivers and streams.

A potentially precedent-setting lawsuit initiated earlier this month is once again ripping open the debate over how best to stem the flow of nutrients from America’s farms and animal operations into the country’s rivers and streams.

This time, the plaintiff is not an environmental group, though; it is a municipal utility struggling to bring clean drinking water to its customers.

Des Moines Water Works has long faced unsafe nitrate levels in its water supply, the Raccoon and Des Moines rivers. The Safe Drinking Water Act sets a limit of 10 milligrams per liter for nitrate, a fertilizer byproduct, in tap water. Higher levels are linked to blue baby syndrome and breathing problems.


The Raccoon and Des Moines rivers regularly exceed the nitrate limit, and levels have been particularly high over the past two years, the utility says. Last year, the Raccoon saw a record 24 milligrams per liter, the agency says.

Normal water treatment can’t remove nitrates, so the high concentrations in the rivers have forced the utility to run its expensive and aging denitrification plant. In 2013, Des Moines Water Works said it had to run the facility for 74 days for at a total cost of $900,000. Last year, after an especially rainy fall, the utility had to begin operating the plant in the winter — a highly unusual occurrence.

"This issue, for us, is public health; we’re talking about the safe drinking water for half a million people," said Bill Stowe, CEO and general manager of Des Moines Water Works.

It’s also a money matter: The utility is about to raise its rates 7 percent, nearly a third of which Stowe said is linked to running the denitrification plant.

And the outdated plant poses some risks. For instance, the system uses salt to remove nitrates from the water, and the utility nearly ran out of it this month because of weather-related transportation problems, Stowe said. Without salt, the city may not have been able to deliver clean drinking water to its customers.

Such concerns have Des Moines Water Works considering the prospect of a $100 million upgrade.

But instead of undertaking this pricey capital improvement, Stowe wants farmers upstream to face restrictions on the amount of nitrates that can flow from their operations into the rivers. He and his board of trustees sent a notice of intent to sue to the county supervisors of three heavily agricultural upstream counties earlier this month.

Bill Stowe
Bill Stowe, CEO and general manager of Des Moines Water Works, at the utility’s nitrate removal facility. Rather than undertake a $100 million upgrade to the facility, Stowe wants upstream farmers to face requirements for stanching nutrient flow from their operations. | Photo by Charlie Neibergall, courtesy of AP Images.

The move drew swift opposition from Iowa’s agricultural community and state officials, including the governor, the state agriculture commissioner and new Iowa Republican Sen. Joni Ernst. They argue that such regulation not only isn’t allowed under the Clean Water Act, but simply won’t work when nutrient problems and solutions can vary widely depending on location, hydrology and other factors.

"Des Moines has declared war on rural Iowa," Gov. Terry Branstad (R) told The Des Moines Register. "I think instead of filing a lawsuit, Des Moines should sit down with the farmers and people who want to do something about it."

City leaders responded that they have tried this approach for years, to little avail.

"They want to go down this path of voluntarily trying to find ways to reduce those pollutants and test them out and see how it works," Des Moines Mayor Franklin Cownie said. "Well, we’re seeing that it’s not working."

Field drainage

The lawsuit’s specific target is a form of subsurface drainage common in Midwest agricultural areas.

Large swaths of farmland stretching through parts of the Dakotas, Minnesota, Iowa, Illinois, Indiana and Ohio were left as soggy wetlands when glaciers from the last ice age retreated over 12,000 years ago. That process left particularly rich soils but also made farming nearly impossible. So early settlers, often with government encouragement, installed artificial drainage systems.

They were once made of porcelain or clay, but farmers today use strong plastic piping that ranges from a few inches in diameter to 3 or 4 feet across. The piping, typically placed about 4 feet below the surface, is designed to quickly shuttle water away from row crops’ roots.

No one tracks the extent of these tile drain systems, essentially farm field sewers, across the heartland, but Keith Schilling, a hydrologist at the University of Iowa, said the networks are vast.

"I don’t think there’s any way to underestimate how many tile drains there are, and we don’t know where they are," he said.

Nor are the systems’ impacts on water quality well understood.

Lori Sprague, a hydrologist with the U.S. Geological Survey who studies water quality trends, said tile drainage systems essentially short-circuit the natural filtration system that would normally allow some nitrogen to be taken up by plants or turned into harmless gas.

It’s hard to know how much of that nitrogen could still make its way into a stream through the normal path of groundwater, though. Further complicating the calculation is the fact that the Midwest regions thought to have the densest tile drainage are also those with heavy concentrations of row crop farming, making it difficult to know what role the tile drains play.

"But we have observed when there are more tile drains, if you hold everything else constant, there tends to be higher nitrate levels in streams," Sprague said.

Last year, Des Moines Water Works conducted water sampling at the points where three upstream drainage districts — quasi-governmental entities that manage the larger drainage networks in Iowa — discharged into rivers. Those samples showed nitrate levels that frequently exceeded the 10-milligram-per-liter limit.

Farm fields
Farm fields across the Midwest are underlain by vast networks of drainage tile. Those systems protect row crops, but they also short-circuit the natural infiltration system that helps cleanse water before it reaches rivers and streams. | Photo by John Cross, courtesy of AP Images.

That’s roughly on par with an independent study done by Schilling in a major upstream tributary of the Des Moines River that found nitrate levels averaging 13 milligrams per liter over a two-year period.

And the nitrate impacts don’t stop at the Des Moines Water Works intake.

Nitrogen, phosphorus and sediment washing from Midwest farm fields into the Mississippi River and its tributaries feed a massive dead zone each year in the Gulf of Mexico. USGS attributes 41 percent of the problem to farm fertilizer. Tile drains’ role in that is simply unknown, scientists say.

But stanching nitrate levels is no small feat. In a 2010 study looking at options along the Raccoon River, Schilling found it would take a major conversion of cropland to unfarmed grassland, or a steep reduction in fertilizer use, in order to achieve the reductions necessary to bring nitrate concentrations below the federal limit at the water utility’s intake.

To deal specifically with the nutrients in tile drained water, there are three main options: building artificial wetlands that the drains’ water can flow into and be cleansed by, installing bioreactors to treat the water, and designing saturated buffers that allow the drained water to spread out and filter through buffers with grasses and trees that can take up excess nitrogen.

All three have been tried in Iowa, but they are not prevalent. One major hurdle: The cost-share funding available for such projects is limited, and the price can be high for items like artificial wetlands that would require prime farmland to be taken out of production.

"Three and four million [dollars] here and there sounds like a lot of money, but that’s not enough money to even come close to addressing the problem," said Schilling. "It’s going to take $1 billion to make a dent in the problem."

Legal crux

Under the federal Clean Water Act, factories, wastewater treatment plants and other industrial facilities deemed to be "point sources" must get permits to discharge pollutants like nitrogen into rivers and streams, but most forms of agricultural flows are exempted under the 1972 law.

The law explicitly provides two exemptions for agricultural water: for rainwater washing over farm fields, called agricultural stormwater, and for excess irrigation water that flows off fields, called irrigation return flows.

For years, environmental lawyers have been batting around the idea among themselves that tile drainage systems could be argued to be point sources, not qualifying for either of the two exemptions.

Until now, though, the concept has been tried in court only once, in a case brought by a California fishermen’s association and a slate of environmental groups. The case was dismissed by a federal judge.

Vermont Law School professor Patrick Parenteau said, however, that the Des Moines Water Works case laid out in the letter sent to county supervisors appears to be much stronger.

"Their theory of why this meets the definition of a point source discharge and is not subject to the agricultural runoff exemption — which was the reason that the California case got dismissed — was intriguing," he said.

The water works’ argument hinges on the idea that rainwater that has infiltrated into the ground to become groundwater and is then artificially drained is something fundamentally different, from the Clean Water Act’s perspective, from rainwater that washes over the surface of a farm field.

The utility argues that stormwater flowing across fields and into ditches or streams could not pick up nearly as much nitrate pollution as water infiltrated through Iowa’s nutrient-rich soils.

Parenteau said there is precedent for a judge requiring natural groundwater discharges to be permitted — a 9th Circuit decision on groundwater pumping from coalbed methane formations.

But Gary Baise, who served as chief of staff to the first U.S. EPA administrator and now represents agricultural interests at the law firm Olsson Frank Weeda Terman Matz PC, said courts have been reluctant to poke holes in the law’s farm exemptions.

"Agricultural stormwater runoff has been pretty sacrosanct because Congress said so," he said. "We know nonpoint runoff has nutrients in it, we know it’s there, and Congress has spoken and until Congress speaks again, this strikes me as an oddball lawsuit."

Putting aside the question of exemptions, Baise said that permitting tile drain systems would pose an enormous administrative burden. On his farm in Illinois, there are 25 to 30 tiling systems just on his property, he said.

"Do you realize how many farms there are in this country?" Baise asked. "Do you realize how many discharge points there are on a farm? There’s no way in hell you can permit that as a point source."

‘You never litigate your way to water quality’

The Des Moines Water Works lawsuit comes after several years of concerted effort on the part of the state, agricultural leaders, environmental groups, academics and others to develop a plan for reducing Iowa’s contribution to the annual Gulf of Mexico dead zone.

That document, called the Iowa Nutrient Reduction Strategy, was finalized in 2013 and was the first plan from a Mississippi River Basin state under an EPA-led effort. It lays out a path to cut the amount of nitrogen and phosphorus flowing into the state’s portion of the Mississippi River watershed by 45 percent. It also calls for a 41 percent reduction in nitrogen flowing into waterways from agricultural activities.

Critics have called it weak, since it has no timeline for implementation and all the conservation practices it lays out are voluntary for farmers. But Sean McMahon, executive director of the nonprofit Iowa Agriculture Water Alliance, said the process has built momentum among all the key players.

"The agricultural sector would definitely be the first to say that we have water quality problems in Iowa and we’re actually working very hard to address them," said McMahon, a former Nature Conservancy staffer whose new group is funded by farm industry groups with the goal of increasing adoption of agricultural conservation practices. "I would say that there’s very strong buy-in to the strategy."

The question now is what the Des Moines lawsuit does to that momentum.

Even supporters of the lawsuit acknowledge that the only real pollution solutions can come from willing agricultural partners.

Parenteau, the Vermont Law School professor, said that even if the suit moves forward and Des Moines Water Works wins, state and federal regulators could create a general permitting system that essentially perpetuates the status quo for farmers.

"I’d be the first to say that the Clean Water Act is probably not the best way to address this," he said. "You never litigate your way to water quality; you use litigation as leverage. You need a political solution to these problems."

McMahon said Des Moines’ lawsuit threatens to break down some of the collaboration that the nutrient strategy had built.

"Their actions have the potential to create an environment where farmers don’t want to implement conservation practices because they fear that regulation is coming," said McMahon.

But Suzy Friedman, director of agricultural sustainability at the Environmental Defense Fund, said she has seen some indications that the lawsuit could advance the conversation.

Friedman says there is a role for regulation in some cases but ultimately argues that market forces are the most effective driver for conservation efforts. She has worked with Wal-Mart to set environmental requirements, including fertilizer efficiency, for its suppliers like Smithfield, the world’s largest pork producer, and General Mills. And EDF is working with agribusinesses to help farmers respond to the demand signal with things like precision fertilizer techniques.

On a recent trip to Iowa to talk with farmers and agribusiness leaders about these efforts, Friedman said the Des Moines legal action was a hot topic.

"There was some pretty passionate talk about the lawsuit, but not in terms of, ‘All right, we need to fight this thing,’ or ‘We need to slam the door shut and we don’t talk to anybody,’" she said.

"It was, ‘We need to get going, we need to go faster, we need to roll this program out sooner because this is our opportunity to get ahead of this and show that we can make a difference and show that lawsuits and what comes from them isn’t the way it needs to happen.’"