Attorney outlines what was at stake in Water Works lawsuit

Case against drainage districts was dismissed

-Messenger photo by Darcy Doughtery Maulsby
Des Moines attorney Michael Reck spoke at the Iowa Drainage District Association’s annual meeting Friday.

-Messenger photo by Darcy Doughtery Maulsby
Des Moines attorney Michael Reck spoke at the Iowa Drainage District Association’s annual meeting Friday.

Ask Michael Reck about his thoughts on the Des Moines Water Works lawsuit against 10 drainage districts in northwest Iowa, and he gets right to the point.

“These aren’t simple issues, and the stakes were exceptionally high,” Reck, an attorney with Belin McCormick, P.C. in Des Moines, said Friday at the Iowa Drainage District Association’s annual meeting at the Best Western Starlite Village Inn & Suites.

The Des Moines Water Works filed a federal lawsuit in March 2015, claiming ag drainage districts in Sac, Buena Vista and Calhoun counties were funneling high levels of nitrates into the Raccoon River, a source of drinking water for 500,000 central Iowa residents.

The Des Moines Water Works and its CEO, Bill Stowe, targeted 10 drainage districts, noted Reck, the lead attorney who represented the three counties. The lawsuit contended that drainage tiles used to make farmland more productive were short-circuiting natural conditions that otherwise keep nitrates from entering streams and rivers.

The utility sought damages and penalties for the costs it incurred removing nitrates from drinking water. It also sought to have the drainage districts regulated under the federal Clean Water Act as a point source of pollution.

“The drainage districts faced a series of extreme demands for themselves and all of agriculture,” Reck said. “The Des Moines Water Works demanded tens of millions of dollars to pay for new nitrate removal equipment.”

The potential costs to agriculture didn’t stop there.

“Dr. Nick Paulson, an associate professor in the Department of Agricultural and Consumer Economics at the University of Illinois, estimated that if drainage in just these three counties were shut off, it would cost $3.28 billion in damage,” Reck said.

Judge Leonard Strand dismissed the lawsuit in March 2017, saying Iowa’s water quality problems are an issue for the Iowa Legislature to resolve.

“Nobody wants to see nitrogen run down the river, but a solution that puts farmers out of business isn’t the answer, either,” Reck said.

It pays to review some chemistry 101, Reck said.

“Plants need nitrogen to grow” he said. ”Without nitrogen, there would not be life as we know it.”

Nitrates can be conveyed in water, Reck said. High nitrate levels in drinking water can cause blue baby syndrome, a condition that can be fatal to infants six months and younger if not treated. There has never been a case of blue baby syndrome in Des Moines, however, and Iowa hasn’t had a case since the 1950s, said Reck.

The lawsuit came as a shock to many farmers.

“Understandably, farmers in these 10 little drainage districts thought it unfair they were expected to bear the full burden for all of agriculture to defend this suit,” Reck said.

Enter the Iowa Drainage District Association, the Iowa Farm Bureau Federation and the Agricultural Legal Defense Fund, which initially provided funding to fight the lawsuit.

The Des Moines Water Works demanded that the drainage districts named in the lawsuit, and ultimately all others, get permits for nitrates traveling through ditches and tile. This meant districts must secure National Pollutant Discharge Elimination System (NPDES) permits, even though the U.S. Environmental Protection Agency and the Iowa Department of Natural Resources don’t require them.

After studying decades of legal precedent going back to 1972 and earlier, it’s clear Congress always meant to exclude agriculture from NPDES permitting and leave this issue to the states, Reck added. The Des Moines Water Works took a different approach, though.

“They argued that runoff is just what skims over the surface,” Reck said. “If it gets beneath the surface, it’s groundwater and requires a permit.”

The Des Moines Water Works also claimed that nitrate coming through drainage tiles harmed Des Moines’ water quality.

“They alleged that drainage tile is a nuisance, is a trespass and is negligent,” Reck said. “The Des Moines Water Works argued that drainage districts took their riparian rights. We responded that the Des Moines Water Works does not own the water–the state does.”

It’s important to understand drainage districts and how they function, Reck added. A drainage district is a statutory creation under Iowa Code Chapter 468 that allows landowners to join together to drain their land to make it productive.

“Drainage districts have no existence, other than to do as they are told,” Reck said. “They just do what the legislature compels them to do.”

In addition, Chapter 468 “imposes no duties on the districts to filter out nitrates,” Reck noted.

Ultimately, the Iowa Supreme Court’s ruling on the state law claims drove the federal district court’s ruling on the federal claims, Reck said.

“The district court relied on the doctrine of justiciability,” he said. ”You cannot sue someone for something not within their power. Drainage districts lack the legal power to clean water.”

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