IDDA annual conference addresses water quality
Legal counsel talks D.M. Water Works lawsuit
Iowa state lawmakers are considering “novel ways” to respond to a lawsuit filed by the Des Moines Water Works against three counties in northwest Iowa, state Rep. Chip Baltimore said Friday.
Baltimore, R-Boone, said that could include changes in how a utility is allowed to file a lawsuit.
The Water Works lawsuit, and a controversial Environmental Protection Agency rule on waterways, were two legal topics discussed by Doug Struyk, legal counsel for the Iowa Drainage District Association, at the group’s annual conference in Fort Dodge.
Struyk said President-elect Donald Trump’s choice of Scott Pruitt to serve as administrator of the Environmental Protection Agency is good news, when it comes to the EPA’s Waters of the United States rule that the IDDA has opposed.
Struyk invited Baltimore and state Sen. Tim Kraayenbrink, R-Fort Dodge, to speak during his presentation.
Struyk was one of six presenters covering a range of topics from the history of drainage, to nutrient management, to classification of land during the morning event at the Best Western Starlite Village Inn & Suites.
The Des Moines Water Works lawsuit was filed in March against drainage districts in Calhoun, Buena Vista and Sac counties, seeking to hold them responsible for high nitrate levels in the Raccoon River, a primary water source for Des Moines.
“We have some ideas on dealing with it,” Baltimore said. “We’re also looking at some more novel ideas. We obviously cannot change federal law at the state level. We cannot change the federal Clean Water Act. However, the ability of municipal utilities to file lawsuits is totally within the state’s realm.
“We’re looking at some more creative ways to limit a utility’s ability to file lawsuits against other government entities or quasi-government entities. We’re trying to look at what are the appropriate uses of their money. Is filing lawsuits an appropriate use of their money or is it not?”
State leaders including U.S. Sen. Charles Grassley and Gov. Terry Branstad have criticized the suit. The IDDA has offered support to the counties, and filed a brief in their support.
The lawsuit has also elevated the discussion in the state capitol, Baltimore said.
“I think many of us are troubled by the effort and the potential impact, as remote as the possibility of success may be,” he said. “We just didn’t like the signal it sent to the most important industry in our state, which is agriculture.”
Struyk said drainage districts are immune from monetary damages, based on years of legal precedent. But the question of that immunity was one of four items a federal judged asked the state’s Supreme Court to clarify before the suit could proceed.
“There are about 100 years worth of decisions that say we do have that immunity, but now we have an opportunity sitting before the Iowa Supreme Court for the court to say we no longer have that,” Struyk said. “So swallow hard here.”
The matter was argued before the Supreme Court Sept. 15, and a decision hasn’t been released yet.
” We’re coming up on three months,” Struyk said. “We’ve been expecting a ruling ‘any day now’ for the last 30 days.”
The suit has 10 different counts, one of which seeks to regulate the nitrate from fields under the U.S. Clean Water Act, Struyk said. The Supreme Court’s decision could dismiss six of the 10 counts in the case, leaving the Clean Water Act questions for the federal court.
Water Works is seeking to require farmers to do more to prevent nutrients from getting into waterways.
Kraayenbrink has previously said farmers are working hard to reduce nitrate runoff in many ways, including use of cover crops to absorb more of the nutrients.
On Friday Kraayenbrink said before the state spends money on anything, there needs to be a clear goal and benchmarks to tell if the project is working.
“My charge is to make sure we’re spending your tax dollars wisely,” said Kraayenbrink. “From the Senate’s standpoint, we want to make sure No. 1, we’re not wasting your tax dollars on something that’s not working, and No. 2 we want to know exactly what this is going to look like when this is finished.
“I am not a proponent of spending money just to spend money, to make people happy that we’re trying to fix something that we really don’t know what the end game looks like.”
For the state to spend money, a desired outcome must be clearly defined, Kraayenbrink added.
“It seems like so many times we spend money that there’s no endgame of what it’s really supposed to look like, and then there’s no evaluation that shows if it’s working or not,” he said. “If we have an endgame where we say, this is where we’re trying to go, this is how we’re going to spend the money to get there, and do evaluations along the way to see if it’s actually working.”
The EPA’s Waters of the U.S. rule defines which waterways can be regulated under the Clean Water Act, Struyk said.
The new rule came out in June 2015, but has been stayed by a federal court, he said.
“Yesterday President-elect Trump appointed the Oklahoma Attorney General Scott Pruitt to be the next EPA director. Scott Pruitt had already filed suit against the EPA charging that the rule was an executive overreach flatly contrary to the will of Congress,” Struyk said.
Pruitt has argued that “Jurisdiction has been limited to navigable waters, a term always understood as large bodies of water serving as pathways of commerce,” Struyk said. “Wow. A guy who gets it … is going to have the reins of the EPA, and will be able to pull this rule back on his own.”
Trump has also criticized the rule, Struyk said, and called it “one of government’s most intrusive regulations.”
The new U.S. Congress as well as Trump would also have 60 days to repeal the rule through congressional review, he said. Or Trump could appeal it through the administrative rules process.
The EPA has said the new rule will not cover groundwater or tile drains, increase regulation of ditches, or affect areas previously excluded from jurisdiction.
The IDDA has maintained this assessment is incorrect, and warned that it will harm farmers and require permits for many regular farm practices.