Source: http://www.governing.com, June 2015
By: Daniel C. Vock

The White House finalized a rule last week to strengthen the Clean Water Act. But it doesn’t resolve the fights going on between urban and rural interests in Iowa and elsewhere over how to clean up.

Des Moines has a water problem. The source of the drinking water that’s processed by the city’s utility, which serves half a million people, routinely has dangerous levels of nitrate, a colorless, odorless and tasteless form of nitrogen. In extreme cases, nitrate-rich water can be fatally toxic for babies, depriving them of oxygen. So for the past several years, Des Moines has been spending hundreds of thousands of dollars annually to filter nitrate from the Raccoon River, where it gets its drinking water. The situation has grown so dire that the utility says it will soon need to build a new facility to comply with federal pollution laws, at a cost of somewhere between $76 million and $184 million.
But to hear Bill Stowe tell it, the dirty water isn’t really Des Moines’ problem at all — it’s the problem of outlying rural counties, where farmers apply nitrogen-heavy fertilizers to boost crop production. Stowe, the CEO of the area’s water utility, says he’s tired of waiting for farmers to voluntarily reduce the amounts of nitrate they allow to seep into groundwater, and he’s tired of waiting for someone to police the farmers.
So he’s suing them.
“Our stormwater systems, our sanitary sewers, our water systems are paying for pollution caused upstream by agricultural producers,” Stowe says. “That’s not a situation we’re going to allow to continue to go unchecked.”
The lawsuit technically pits the Des Moines Water Works against 13 obscure agencies in three agricultural counties more than 100 miles upstream from the city. But it carries great symbolic significance — it challenges fundamental farming practices in a state whose identity and reputation are linked inextricably with agriculture. It also exposes an urban-rural rift. “Des Moines has declared war on rural Iowa,”  Gov. Terry Branstad, a Republican in his sixth term, said as the utility geared up for the court battle this winter. “Instead of filing a lawsuit, Des Moines should sit down with the farmers and people who want to do something about it.”
Stowe dismisses the idea of a regional conflict. “Clean water is no less necessary on farms and in small towns than it is in cities and suburbs,” he says. “The issue is more starkly industrial agriculture versus the rest of Iowa. The endgame here is agricultural accountability for water quality in this state. There’s not another business that could put … a pipe into a water of the state and not be regulated.”
The suit claims that water polluted by fertilizer should be regulated under the same federal rules that govern water discharged from factories and sewage treatment plants. It’s forcing Iowans to confront the long-neglected and sometimes painful problem of how to clean up their rivers without choking off the lifeblood of the state’s economy. It’s part of a bigger discussion about Iowa’s farming history and what the state wants to be in the future.
Similar conversations are taking place in other states as well. This spring, Ohio lawmakers cracked down on farming practices (such as spreading manure on frozen fields) that harm waterways, after a Lake Erie algae bloom shut down Toledo’s water supply for two days last August. In Maryland and other Mid-Atlantic states, efforts to clean up the Chesapeake Bay have increasingly focused on stormwater runoff in communities far upstream from the bay.
In Iowa, the lawsuit takes issue with the technology that makes much of the state farmable to begin with. Iowa today has some of the nation’s most fertile farmland, and, with some plots going for more than $10,000 an acre, some of the most valuable. But it wasn’t always so. A century ago, much of Iowa was marshy swampland.
The first white settlers in the “prairie pothole” region north of Des Moines, where the Raccoon River originates, thought the vast expanses of flat land were worthless; they settled along streams or on drier ground instead. But soon area residents discovered that by adding drainage pipes four to five feet underground, the swampland could be made incredibly fertile.
So they installed underground plumbing systems to carry water away, and their farms flourished. As the practice became more popular, farmers needed a way to move the drained water off their property and into streams and rivers. In 1908, voters amended the Iowa Constitution to specifically allow farmers to band together and create “drainage districts” to build those ditches and drains. Heavy machinery made installing drainage systems easier, and farmers continue to install drains even today. They are used extensively for corn and soybean fields in the Raccoon River watershed, and are common on 40 percent of the farmland in Midwestern states between Iowa and Ohio.
“Sac County would be a mosquito haven but for drainage districts, because there’d be standing water everywhere,” says Colin McCullough, an attorney who, like his father before him, focuses on drainage issues. McCullough is representing Sac County’s supervisors, who were sued by the Des Moines utility in their capacity as trustees for drainage districts in the area. Just defending the case could put a huge financial strain on the resources of the county, which has only 10,000 residents. In fact, all the defendants will likely have to hire lawyers from Des Moines and Washington, D.C., but Sac County’s insurance company so far has refused to cover the costs of the suit.
Drainage districts are essentially agreements among neighbors to build, maintain or upgrade infrastructure to move water away from the fields. Residents decide whether to start one, and the costs are paid for entirely by landowners in the district. A supermajority of those landowners can block projects entirely. In fact, drainage districts themselves cannot do much but build drainage facilities. They don’t have the authority, for example, to adopt conservation measures. While county supervisors are caretakers of the drainage districts, they actually have little say in what those districts do and rarely spend much time overseeing them.
There are 3,000 drainage districts across the Iowa prairie; as governments go, they are tiny. But the drainage districts are the key to Des Moines Water Works’ unique claim that water coming from farmlands can be regulated under the federal Clean Water Act, which focuses most of its enforcement on “point source” pollution, typically liquid flowing out of a pipe into a body of water. The law specifically exempts “agricultural runoff” from regulation. While it is a clear concession to a powerful lobby in Congress, the agricultural exemption also makes some regulatory sense. It’s not hard to imagine the complexities of regulators trying to pinpoint pollution to specific corn or soybean fields.
A central question in the Des Moines lawsuit is whether the water carried by the drainage districts is actually “agricultural runoff.” The utility says no, because it’s not surface water. It isn’t rainwater that rolls downhill into a stream; it is water that trickles through the soil before the drains siphon it off. The Des Moines Water Works considers it contaminated groundwater that, when it enters streams and rivers, should be treated as point source pollution.
It’s the drains, in the Des Moines utility’s view, that are responsible for the high nitrate levels. Nitrogen is naturally filtered through soil and taken up by plants. That is, of course, why farmers apply nitrogen-heavy fertilizers in the first place. But the drainage pipes short-circuit that process, says Stowe, the utility’s CEO. The pipes, he says, “falsely interrupt the groundwater system and bring it to a higher quantity and lower quality.”
At its heart, the lawsuit raises a novel legal claim. “The surprising thing is that this issue has never been litigated,” says Drake University professor Neil Hamilton, who heads the Des Moines school’s Agricultural Law Center.
It is also clear, Hamilton says, that the Des Moines utility strategically selected its defendants so the focus of the suit would be squarely on agriculture. All of the drainage districts it sued are in sparsely populated areas, where farms are the only plausible source of nitrate pollution and public data show high levels of nitrates in the water. That rules out other sources of nitrate contamination that are more common in urban and suburban areas. The move “nullifies the goose poop and golf course arguments” that have sometimes been used to deflect responsibility from agriculture’s role in producing the pollutants, Hamilton says.
The drainage districts have plenty of legal defenses. There’s a threshold question of whether they can be held liable under Iowa law at all. The Iowa Supreme Court ruled three years ago that drainage districts cannot be sued for money damages; they can only be sued to compel them to keep up their systems. The districts also will point to legislative history purporting to show that Congress meant to include drainage districts under the agriculture protections in the Clean Water Act.
The free pass that the agriculture industry gets under federal environmental laws can breed resentment even in a farm state like Iowa. While ignoring the nitrogen and phosphorus that wash off farm fields and into rivers, federal regulators keep close watch on the water flowing from city sewer pipes or water treatment plants into those same rivers. In fact, the Environmental Protection Agency has been tightening the screws on municipal water systems under the Clean Water Act, often requiring improvements costing billions of dollars.
In many areas, though, farm runoff is harming the environment more than city waste. For example, the chemicals responsible for creating the Gulf of Mexico “dead zone,” where most marine life cannot survive, come largely from agricultural sources. Midwest corn and soybean fields, such as those upstream from Des Moines, account for a quarter of the phosphorus and more than half of the nitrogen that enters the Gulf. By comparison, urban areas contribute 12 percent of the phosphorus and 9 percent of the nitrogen that runs into it.
It is particularly frustrating, says Pat Sinicropi of the National Association of Clean Water Agencies, because reducing a pollutant such as nitrogen or phosphorus is much cheaper in the field than in a treatment plant. In the Chesapeake Bay watershed, for example, one study found that it would cost farmers $1.50 to $22 per pound to reduce nitrogen in the water. For wastewater utilities, the cost would be $15.80 to $47 per pound of nitrogen removed. For stormwater cleanup, the cost would be more than $200 a pound.
The federal government also keeps a close eye on drinking water agencies, many of which, like the Des Moines Water Works, use rivers as their supply. Those utilities must comply with regulations under the federal Safe Drinking Water Act. That scrutiny is what spurred the Des Moines utility to build a special $4.1 million treatment unit to remove nitrates in 1991. Nitrates dissolve in water and are difficult to remove. The process Des Moines uses to do so is messy, because it creates a corrosive salt slurry. It’s expensive, costing $7,000 a day. And it’s outdated, because better processes have been developed in the quarter-century since Des Moines built its existing facility.
But Des Moines is using the nitrate-removal process more and more often. In the first decade after the treatment unit was built, the city used it, on average, about 50 days a year. Recently, though, nitrate levels in the incoming water have been so high that Des Moines has been breaking its own records for consecutive days with the unit operating. Due in part to extreme weather, the Des Moines Water Works took in more nitrate in a single week in the summer of 2013 than it had the entire previous year, which cost the agency more than $500,000. Since then, nitrate levels have remained stubbornly high. This winter, the water agency had to keep its unit running for 96 days, the longest ever for that season.
When Branstad, Iowa’s governor, said Des Moines should work more closely with farmers to reduce pollution, he probably imagined something like what Cedar Rapids is doing.
In the same week that Des Moines filed its lawsuit, Cedar Rapids, Iowa’s second-largest city, announced that it had received $2 million in federal money to work with 15 local groups to encourage farmers to find ways of curbing pollution. It’s a collaboration among some of the biggest players in Iowa agriculture, including state and county soil and conservation districts, Iowa State University, and trade associations for pork, corn and soybean farmers.
That’s how Steve Hershner, who is in charge of the drinking water, wastewater and trash collection in Cedar Rapids, ended up on a bus tour of farms with 80 other people in March. The group explored several new ways to break down nitrate on their own farms using natural processes. Farmers can plant winter-hardy plants during the offseason, ones that will continue to break down nitrate after the main crops are harvested. They are also spreading water along the grassy banks of streams, rather than piping it straight into the stream itself, so the grasses can process the nitrates.
One promising technology, known as “biodigesters,” can help too. Biodigesters are essentially underground concrete chambers filled with wood chips that mimic the work done by wetlands to convert nitrates into nitrogen gas, a harmless substance that makes up most of the world’s atmosphere. Water from pipes passes through the biodigesters, each of which is about the size of a small basement. Microbes in the wood chips break down the nitrates before the water moves through.
But there are drawbacks. “Innovations like this are really expensive to construct and install, and they take some management,” Hershner says. “It’s not that you put it in and never think about it again.”
Then there is the problem of scale. The federal grant will pay for demonstration projects, but that doesn’t go very far. Roger Wolf, who runs the environmental programs at the Iowa Soybean Association, says stemming the flow of nitrates downstream would take somewhere around 180,000 biodigesters in Iowa; the soybean association, viewed as a leader in the area, currently helps run 26.
Many activists believe farmers could reduce pollution by either using less fertilizer or using it in a more environmentally friendly way, but Wolf says that won’t be nearly enough to solve the problem. “You’re not going to reach these goals by tweaking fertilizer management,” he says. “I think that’s difficult for people to understand.” A full solution of the nitrate problem would require financial resources that neither the federal nor the state government seems ready to provide, plus coordination among the state’s 90,000 farmers, 300,000 landlords and 3,000 drainage districts.
The collaborative approach pioneered by Cedar Rapids may also be too late for Des Moines. Because of differences in its geography, economy and water supply, Cedar Rapids can afford to be patient. In fact, Cedar Rapids has no system for filtering nitrates from its drinking water, because it hasn’t ever needed one. Its goal in working with farmers is to make sure it won’t ever have to build one.
But statewide, Des Moines’ aggressive approach is winning in the court of public opinion. A February poll by The Des Moines Register found 63 percent of Iowans backed the utility as it prepared its lawsuit. Support was strongest among urban residents, but even in rural areas, residents were evenly split.
Hamilton, the Drake law professor, says the lawsuit highlights the public’s growing frustration over water quality. “People are saying this isn’t a new issue,” he says. “We’ve been dealing with water quality issues in Iowa for generations. I think it’s fair to say the public is growing weary of claims that all we need is more time and voluntary measures will get us there, because there’s no evidence to support that.”