In Iowa, a lawsuit by the Des Moines Water Works (DMWW) is forcing the state to confront the question of whether agriculture should be held accountable for nitrates that leach into urban drinking water. DMWW says the answer is yes. But instead of going after individual farms, the utility has sued three county drainage districts, arguing that they need to either push farmers to pollute less or install better filtering equipment to safeguard the water released into the Raccoon River, which provides drinking water for Des Moines’ 500,000 residents.

DMWW currently spends $1 million a year to remove nitrates from the city’s water. With nitrate levels reaching record highs, the utility says it will soon be forced to invest at least $100 million to upgrade equipment and raise customer fees by an estimated 10%. Backed by the Iowa Farm Bureau, the drainage districts counter that they don’t have the authority to police farm pollution. DMWW’s critics say that farmers should be encouraged to reduce nitrogen runoff through voluntary programs, not regulation. Agriculture Secretary Tom Vilsack recently sided with those calling for voluntary efforts. At a House Appropriations subcommittee meeting on February 11, he said he is concerned that a federal judge “may create rules, regulations, and directions for [Iowa] producers that will be extremely difficult to comply with.”

FERN’s Kristina Johnson recently spoke with Neil Hamilton, director of the Agricultural Law Center at Iowa’s Drake University, to learn more about the suit. Hamilton has written extensively about the case for the Des Moines Register and AgLaw.

Johnson: Why did DMWW choose these three counties to sue?

Hamilton: Part of DMWW’s decision on who to sue was designed to get around the “goose poop and golf course” excuses, where if there are water-quality issues, well, it must be coming from somewhere else. But DMWW went out over a period of time and selected almost purely agricultural areas to use in the suit, so there isn’t any question about what’s coming into the water.

How can DMWW win this case?

First, they will have to prove the drainage districts are a point-source for pollution. [Under the Clean Water Act, a point-source is any “discernable, confined, and discrete conveyance” from which pollutants may be discharged, typically a pipe.] In the past, the EPA has said normal farming activities are exempt from the Clean Water Act because they’re not considered a point-source for pollution. Some livestock farms are, however, required to obtain permits. But the DMWW argues the drainage districts are artificially created and maintained, and so should be considered a point-source. Second, DMWW will have to show the water in question isn’t surface water, since agricultural stormwater coming off of farms is also exempt. DMWW is arguing the water flowing into the drainage ditches is actually groundwater because it’s released by underground drainage tiles a few days after it rains.

Does that tiling happen in other parts of the country?

Certainly there is tiling in other states – in Illinois, parts of Missouri, and southern Minnesota. But Iowa is extensively tiled. Roughly 10 million of our 25 million acres of crop ground have subsurface tiling installed under them. People who aren’t used to that system find it hard to believe that we’ve put plumbing into that much of our state, but we’ve been doing it for about 100 years.

If the DMWW wins, would it force a substantial change in how farmers use fertilizer?

Not necessarily. I think you’re more likely to see potential impacts on land-management practices like vegetative buffer strips, saturated buffers along streams, and nutrient-management plans. They might also look at some kind of cover-crop requirement. With the monocultures we have, we don’t have anything out there seven or eight months a year to lock up the nutrients. Cover crops offer a really promising opportunity for nitrate control.

Do the drainage districts have the authority to ask farmers to clean up pollution or plant cover crops?

That’s one of the questions that would have to be answered. Judge Bennett at the U.S. District Court recently certified several questions, including whether the drainage districts can actually be sued, and sent them back to the Iowa Supreme Court to answer before the case can proceed. The districts say they were created solely for the purposes of drainage, not to tell people what can be drained. But the DMWW says that granting the districts absolute immunity doesn’t fit within the public interest. If the districts’ argument is that they don’t have any responsibility for how the drainage is done or what the effect is, then the DMWW wants to know how that can be in the public’s interest.

Is the EPA set up to administer permits to Iowa’s drainage districts?

Actually, the Clean Water Act is administered by the state Department of Natural Resources. Just as DNR issues permits for concentrated animal feeding operations [CAFOs], they could issue permits for drainage districts if required. There are 3,000 drainage districts in Iowa, but that doesn’t mean all of them would require or need permits. You can certainly make the argument the government could never do this job, but it is an awful long way down the road before we even know what kind of job it would have to do.

Is there legislative support for tackling water quality?

In 2010, 63% of voters voted to amend the state constitution to create a protected natural resource trust fund called IWILL [Iowa’s Water, Land Legacy]. The next ⅜-cent increase in sales tax was supposed to be dedicated to the fund, but of course the legislature hasn’t been willing to raise the tax. IWILL could generate somewhere north of $150 million a year, over half of which would be dedicated to water quality, soil conservation, and agricultural uses — about 10 times the amount of state money we’re putting into it now. But the state isn’t using it. I don’t think DMWW would have filed the suit if the state had passed the sales tax, or if there was any indication state leaders were serious about addressing water-quality issues.

What do you think of voluntary efforts like Iowa’s Nutrient Reduction Strategy, which is designed to help farmers curb nitrate runoff?

Even the Nutrient Reduction Strategy the governor and everyone loves to talk about estimates the cost to clean our water could exceed $1 billion a year. But yes, voluntary efforts have to play a part, and many producers are adopting practices like cover crops. Still, there’s no reason to think a purely voluntary approach would work. Speed limits aren’t voluntary. Alcohol limits for drivers aren’t voluntary. We use regulations as a major part of how we structure society. How about a regulation that says you’re responsible for the quality of water that leaves your farm?

How could you argue against that?

People fear regulations because they see them as a restraint on their freedom. I think some farmers would say the cost of monitoring is too high, or that some water pollution is the price of cheap food. They might fall back on an excuse about weather, too. You had Senator [Charles] Grassley in the newspaper a couple of months ago essentially saying “God” was responsible for water quality problems because of all the big rains we’ve been having. You can say God is responsible or you can say we need to have to a system that is resilient enough to deal with big rains.

Where do the state’s big commodity-crop organizations, like the Iowa Soybean Association, stand on this debate?

You’re seeing a fairly significant division within agriculture here. The Iowa Soybean Association has been a long-time supporter in improving water quality. Most of the commodity groups are in support of IWILL, the tax increase. That doesn’t mean they’re happy with the lawsuit, but they know there’s a problem. The Iowa Farm Bureau remains the biggest obstacle. They’re funding a negative campaign with a front group, Iowa Partnership for Clean Water. They’ve spent nearly a million dollars trying to demonize Bill Stowe, the CEO of DMWW, by talking about how the lawsuit is a waste of money and time and a threat to farmers in the state. But the polling shows the lawsuit is supported in both urban and rural areas.

Do farmers in Iowa feel responsible for nitrate pollution?

One of the arguments you always hear people make is: “Oh my gosh, I’m not putting on any more fertilizer than I need. Why would I waste it? It costs so much already.” But I always ask my students if they read the instructions on the backs of shampoo bottles. The bottles always say apply, rinse and wash again. Why would they put that? It’s a great way to get you to use more shampoo. I think the same kind of thing may happen with fertilizers. Many observers believe ag retailers need to be more engaged in the water quality debate. If you look at polls of where farmers get their advice on nutrient use, it’s coming from retailers.

What does this lawsuit mean for the rest of the country?

The actual lawsuit is fairly specifically tied to our system of drainage districts and our method of subsurface drainage of tiling, which isn’t particularly common across agriculture. But this case is important because it involves a broader conversation about agriculture’s impact on water quality. It shows there are other innovative legal arguments people can make to protect their water sources. Three or four years ago, the idea of suing the drainage districts would have seemed crazy.

Does it matter if the DMWW loses?

Whether or not DMWW wins isn’t necessarily important to whether the case has meaning. This case has already changed the discussion around water quality and agriculture and what the state’s going to do about it. There’s no question Iowa has a water-quality issue, and that it’s getting worse. I think people were very happy to kick the issue down the road with relatively minor levels of state funding and pilot projects that make it look like they’re putting in their best efforts. This litigation has been a catalyst to bring the matter to a head.

Written by Kristina Johnson for FERN's Ag Insider.