Resolution of lawsuit removes political case for Des Moines Water Works bill

Opponents of the legislative effort to disband the Des Moines Water Works got a boost yesterday when the water utility’s Board of Trustees voted not to appeal last month’s federal court ruling dismissing their lawsuit against three northwest Iowa counties. The Iowa Farm Bureau’s wrath over that case inspired a bill that would transfer authority over the Des Moines Water Works to three area city councils.

Agriculture committees in the Iowa House and Senate advanced versions of the Water Works bill, but neither chamber voted on the measure before a “funnel” deadline in late March. Several House and Senate Republicans representing districts with independently-managed water utilities spoke privately about opposing the bill.

Among Iowans who have been fighting this legislative overreach, one big fear has been that powerful Republicans would slip Water Works language into an appropriations bill during the final days of the session. Senate Appropriations Committee Chair Charles Schneider has pledged not to do so, but his House counterpart Pat Grassley has made no such promise. The deadline for appealing the federal court ruling was coming up on April 17, and some Water Works supporters worried that pursuing the case might strengthen the Farm Bureau’s allies at the Capitol, who are still trying to get this language to Governor Terry Branstad.

Instead, the Water Works will waive its right to appeal in exchange for the defendants agreeing not to pursue legal fees. According to Laura Sarcone, communications specialist for the water utility, the next step will be defense counsel getting the boards of supervisors of Sac, Buena Vista, and Calhoun counties to sign off on the agreement. The U.S. Department of Justice would also have to approve the resolution.

I would guess that the county supervisors will happily agree not to pursue legal fees in exchange for finalizing an end to the lawsuit. After all, the cost of defending the case didn’t come out of their budgets. As Art Cullen discussed in a Pulitzer Prize-winning series of editorials for the Storm Lake Times, secret donors, supposedly unknown even to the county supervisors themselves, paid for the first $1 million or so of the defendants’ legal expenses. The Iowa Farm Bureau and Iowa Corn Growers Association stepped in to cover the rest.

I enclose below a Water Works news release and the ruling from U.S. District Court Chief Judge Leonard Strand. In dismissing the case, he found that the Water Works “may well have suffered an injury” from pollutants entering waterways in the named counties, but the northwest Iowa drainage districts “lack the ability to redress that injury.” Almost certainly, the Water Works would not have prevailed on appeal to the Eighth Circuit. The lawsuit accomplished only one thing: making Iowa’s dirty water a more salient political issue. Even so, bills that would address the major source of the problem–agricultural runoff–have no more traction now than they ever did.

APRIL 19 UPDATE: No Water Works provisions are in the standings bill Schneider introduced this week.

April 11 press release from the Des Moines Water Works:

The Des Moines Water Works will move to resolve its Federal Clean Water case without appeal. The United States District Court for the Northern District of Iowa issued its ruling on March 17, dismissing all of Des Moines Water Works’ claims against the Boards of Supervisors in Sac County, Buena Vista County and Calhoun County.

In March 2015, Des Moines Water Works Board of Trustees filed a federal lawsuit against the Boards of Supervisors in their capacities as trustees of 10 drainage districts. The complaint alleged the named drainage districts are point source polluters as defined by the Clean Water Act and Iowa Code Chapter 455B, and called for the drainage districts take all necessary actions to comply with the Clean Water Act. In addition, Des Moines Water Works demanded damages in an amount required to compensate for the harm the drainage districts caused by their unlawful discharge of nitrate.

“As an independent water utility, the sole focus of Des Moines Water Works is to provide safe and affordable drinking water to the 500,000 Iowans we serve. Water quality is an issue that we take very seriously, and the conclusion of the lawsuit will not change that,” said Bill Stowe, CEO and General Manager, Des Moines Water Works. “While many in the agriculture community and state political leadership took issue with the lawsuit, nobody objected to the facts showing drainage districts are polluters. The risks remain and demand immediate accountability to protect our state.”

The ruling dismissing the case did not dispute the assertion that drainage districts cause water quality problems in the Raccoon River Watershed. Rather, the court indicated that Des Moines Water Works may well have suffered an injury, but the drainage districts lack the legal ability to redress that injury.

According to Stowe, “Policy and law must keep pace as public health and water quality concerns demonstrate both risk and cost to water consumers; that includes 100-year old Iowa Code dealing with drainage districts and implementation of the Iowa Nutrient Reduction Strategy.”

The Iowa Nutrient Reduction Strategy estimates that 92% of nitrate in Iowa’s water comes from unregulated sources, namely agriculture, and 8% from regulated sources, such as sewer systems. Without proper funding and water quality data to measure progress, the Nutrient Reduction Strategy cannot produce the 45% nitrogen reduction goal. The court’s ruling noted this argument, and concluded these are policy issues the Iowa Legislature should resolve.

“Central Iowa will continue to be burdened with expensive, serious and escalating water pollution problems; the lawsuit was an attempt to protect our ratepayers, whose public health and quality of life continue to be impacted by unregulated industrial agriculture,” said Stowe. “These serious problems have been placed squarely on the shoulders of our state legislators. The old, business-as-usual, voluntary-only approach will never result in the 45% nitrogen reduction. We hope that, rather than wasting valuable time and resources crafting legislation designed to punish Des Moines Water Works for filing the lawsuit, our legislators can create bold laws that address water pollution. True source water protection is vital to our customers and community.”

March 17 ruling by U.S. District Court Chief Judge Leonard Strand, dismissing the Des Moines Water Works lawsuit against three counties in their capacity as trustees for drainage districts:

  • Water games

    Still unresolved is the question of why, to extremely-roughly paraphrase Art Cullen, his newspaper can’t dump barrels of ink in the river but the big drainage outlet pipe can dump massive loads of nitrates. The question of whether a drainage outlet could and should be regulated as a point source of pollution is still a valid question.

    Speaking of the environment, I’m now hearing that the Loess Hills Alliance and the Iowa Water Trails program are also on the chopping block. Apparently some Iowa Republicans don’t feel that they even have to try to pretend to care about conservation any more, not that they ever did a convincing job of it.

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