Iowa Lawsuit Challenges Ag’s Water Quality Efforts
May 3, 2015 
Customers in West Central Cooperative’s Sac County territory — here visiting at the retailer’s open house — are frustrated by the negative publicity generated by Des Moines Water Works’ lawsuit about their practices.
Nutrient problems in west-central Iowa’s water supply made national headlines in March when the Des Moines Water Works (DMWW) filed a lawsuit in federal court against 10 drainage districts, citing their responsibility for unusually high nitrate levels in the Raccoon River.
The goal of the lawsuit is to force Sac, Buena Vista and Calhoun counties to get Clean Water Act permits for alleged water pollution discharges from farm drainage tile systems. The CWA has historically granted exemption to nonpoint source discharges, including agriculture field tiles, but DMWW officials say drainage districts should not be exempted.
A press release from the utility stated that the Raccoon and Des Moines Rivers experienced extremely high nitrate concentrations in the spring and summer of 2013, fall of 2014 and winter of 2015. Recent upstream water monitoring by the water facility at 72 sample sites in Sac County has shown nitrate levels as high as 39.2 mg/L in ag stormwater discharged by drainage districts. The EPA standard for the maximum contaminate level (MCL) of nitrate in finished drinking water is 10 mg/L.
Nitrate levels above the MCL increases the cost of drinking water treatment; for instance, in 2013, DMWW facilities incurred approximately $900,000 in treatment costs and lost revenues. On December 4, 2014, the utility began operating the nitrate removal facility continuously for 96 days (unprecedented in the winter months) for a total of $540,000 in operations and additional expenses. DMWW believes record high nitrate concentrations will require future capital investments of $76 million to $183 million to remove the pollutant.
Matt Lechtenberg, water quality coordinator for the Iowa Department of Agriculture qualifies those figures: The $900,000 treatment cost would translate to approximately $1.80 per customer. The $540,000 in expenses come to about $1 per rate payer, with a single residence paying even less. And future investments are estimated to cost $152 to $366 per rate payer, spread over 20 years.
Another factor to consider is that data generated by the Iowa Soybean Association shows nitrate levels may be modestly declining in the Raccoon River based on more than 5,000 samples collected from 1999-2014.
Stakeholders Weigh In
The Fertilizer Institute (TFI) issued a statement calling the lawsuit “unfortunate” and pointed out that the action will divert resources that could help fund real solutions to the region’s nitrate issues. “The expense of responding to a legal challenge like this can be tremendous,” says Kathy Mathers, vice president, public affairs. The districts will need to bring in local legal counsel as well as attorneys very familiar with the federal statute — with a track record in court on CWA.
“I do think we can safely predict this action will take a long time to resolve. And whatever the decision of the court is, there will likely be an appeal by the party that did not win,” she says.
Mathers also notes the lawsuit has “a lot of moving parts,” with interested parties from national farm groups, commodity groups, drainage districts and others in the ag community weighing in. TFI is reaching out, figuring out who’s doing what about the suit, seeing where gaps exist and determining if it can do anything to help fill those gaps. “This has such serious implications for overall nutrient use that we know we need to be engaged,” she says.
Mathers says TFI will actually be taking a dual approach, helping to defend the drainage districts/Iowa agriculture where appropriate but also helping to protect Iowa’s waters by encouraging 4R nutrient stewardship and conservation practices.
If the drainage districts do need to get National Pollutant Discharge Elimination System (NPDES) permits, she says the cost would likely flow down to the producer level.
Chuck Gipp, director of the Iowa Department of Natural Resources, says a permitting system would be difficult to implement, especially considering there are more than 3,300 drainage districts in the state. (He would not be surprised if the litigation takes up to a decade to be resolved, possibly at the U.S. Supreme Court level.)
A permit for a field tile is not going to reduce nutrient loss, points out Jean Payne, president of the Illinois Fertilizer and Chemical Association (IFCA). “It’s just going to create a punitive environment where somebody pays for the nutrient loss. It doesn’t mean the nutrient loss is going to stop,” she says.
She does feel the DMWW lawsuit drives home the need for the ag community to take responsibility for the nutrients and crop protection products it introduces into the environment. And the specter of NPDES permitting should get the fertilizer industry thinking ahead.
Payne cites one instance when that happened, when the fertilizer/chemical industry in Illinois led the way in drawing up containment regulations some 20 years ago. The initiative cost stakeholders millions and millions of dollars, but it was the right thing to do, she says. The regulations made sense, were workable and set up an enforcement mechanism that was thoughtful and productive, not just punitive. That’s the benefit of being on the forefront of regulation.
Retailer In The Trenches
CropLife 100 retailer West Central Cooperative is a key supplier in the region affected by the DMWW lawsuit. Its Sac City location staff (in Sac County) are sharing news on the lawsuit and collecting input and questions for West Central’s partners who are representing the ag industry. And employees throughout the territory are having many more conversations about services and products that promote the 4Rs, as growers seek out actionable information.
Scott Coon, executive vice president of agronomy at West Central Cooperative, has been disappointed with the way the Des Moines Water Works has chosen to resolve the nitrate issue. He believes the idea that “you can catch more flies with honey than with vinegar” definitely applies, and points to the Cedar Rapids area watershed as a great example of all interested parties coming together to improve water quality in a voluntary approach.
Requiring permits for field tile in today’s drainage districts would be nearly impossible, Coon says.
“There is a misconception by the public that each individual drainage tile can be tied directly to one grower. We know that you can have three fields, managed by three different growers, using the exact same tile,” he explains. “If two of those three growers are doing the right thing, and one is not, how will the water at the end of that entire tile tell you what you need to know to hold someone accountable?
“We should focus the millions of dollars that would be required for a non-point source drainage district monitoring system into additional funding for our growers to utilize the right tool — nitrogen stabilizers, cover crops, buffer strips or conservation practices — on the right acre,” Coon continues.
For its part, West Central has long been a source of grower information on nitrogen management. More recently, in February the coop hosted a series of five producer meetings on the topic. Dr. Matt Helmers, science lead for Iowa’s Nutrient Reduction Strategy, walked customers through the many options available to meet the state’s goal of 40% nitrate reduction in waterways. Coon says the sessions spurred some heated conversations with customers, but in the end, demonstrated there is no one, single way to meet the area’s water quality goals.
DMWW CEO Bill Stowe doesn’t think too highly of current efforts. He says the lawsuit grew out of frustration over the current “rhetoric” by state and industry leaders about the successes of the Iowa Nutrient Reduction Strategy, despite its lack of funding, standards, timelines or measurement.
“It is simply not a sincere approach to protect the public health of Iowans who rely on safe drinking water every day,” he noted in a press release. “We can no longer rely on voluntarism, rhetoric and speculation to protect the waters of our state.”
What Efforts Look Like
Some Iowa farmers and retailers might say those are fightin’ words. Growers understand that they need to be stewards and have acted accordingly for many years, says Charlie Glass, agronomy field marketer out of West Central’s Sac City facility. “They are frustrated at the negative publicity about their practices. Several in my area have paid for waterways or buffers out of their own pockets without asking for state funding. Those are the ones who seem the most disappointed in the lawsuit.”
Funding dollars to help growers implement nutrient management strategies are now coming through the Iowa Water Quality Initiative (WQI), launched three years ago to support the state’s Nutrient Reduction Strategy. Lechtenberg says the group has seen great support in the state’s legislature and has been able to secure funds totaling $2.4 million in 2013, $4.4 million in 2014 and a possible $7.5 million in 2015 (plus a $10 million one-time allocation early on).
As of April 2015, the Initiative was overseeing 16 watershed projects that demonstrate and assist growers with a host of nutrient reduction practices. These projects are in addition to many other programs developed to help expand implementation of various nutrient reduction practices.
Iowa State University’s research and extension teams have partnered with the WQI to develop the best nutrient recommendations and to offer programs to get the message out to producers. “They’re a valuable asset for boots on the ground,” says Lechtenberg.
One area monies are needed is for application. Coon says that as practices change, West Central — and ag retailers in general — have to address the equipment needed to further adopt responsible nitrogen programs.
“Today, this region is equipped for anhydrous ammonia. Not every grower is going to be able to have a specialized starter fertilizer bar or side dressing equipment,” he says. Growers and ag retailers have to invest wisely in the equipment, storage and logistics needed for a responsible, multi-application approach.
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