Rep. Gary Worthan, Iowa legislator, says "Managers of the Des Moines Water Works have insulted every family farmer in northwest Iowa by threatening to sue three counties over nitrate pollution in the Raccoon River." It flows into the Des Moines River the city's drinking water supply.
The Des Moines Water Works claims that drainage districts which cover more than 9 million acres, or 26% of all Iowa farms, are creating large nitrate concentrations in the Des Moines River water supply.
Nitrate is a naturally occurring oxide of nitrogen. Nitrate occurs naturally in surface and groundwater in concentrations up to 2 ppm. EPA has set the Safe Drinking Water Standard at 10 ppm or 10 mg/L. EPA believes this drinking water standard is necessary to protect the health of infants.
In the Notice of Intent to Sue Jan. 9, 2015, DMWW claims that 98% of the nitrate loss from farms does not come from storm water runoff but that the nitrate loss from farm fields ends up in groundwater rather than surface water.
The January letter claims, "In the Midwest, export of nitrate is among the highest in the United States with as much as 35% of the total nitrogen load delivered to the Gulf of Mexico from Iowa and Illinois alone." (Illinois farmers pay attention!)
The letter further claims, "The role of agricultural drainage as a direct pipeline of nitrate pollution into our streams and rivers and the harm it has caused our state and nation is measurable and significant."
The DMWW is giving EPA and the Iowa Department of Natural Resources 60 days in which to allegedly correct the ongoing violations of the Clean Water Act by the farmers and drainage districts. This means DMWW wants EPA and IDNR to sue the districts.
DMWW wants the drainage districts to cease discharging pollutants into the rivers within 60 days and apply for a CWA permit.
The CWA allows citizens or entities such as DMWW to bring a legal action in federal court against the districts if EPA and the Iowa DNR do not take legal action.
The letter, on page eight, declares there are two other causes of action DMWW will be bringing against the Iowa drainage districts and their farmer members.
The Iowa Code states, "a pollutant shall not be disposed of by dumping, depositing, or discharging such pollutant into any water of the state." Iowa's Code further claims that any citizen who is adversely affected may bring a legal action against any other citizen or entity who is discharging a pollutant into any Iowa stream or river.
Read literally this means any runoff from any farm field apparently violates the Iowa Code. In fact, DMWW says that the counties and the drainage districts intentionally are diverting groundwater and discharging the nitrates from the farms into Iowa rivers.
The letter does recognize that farmers have an agricultural storm water discharge exemption because pollutants coming from non-point source farm fields are storm water runoff and do not need a permit.
DMWW claims the drainage districts "…simply cannot qualify as non-point agricultural sources, nor can they meet the test of storm water runoff…"
DMWW claims that the drainage districts with their tile are point source dischargers. It further claims that "The transport of nitrate by artificial drainage [tile] is waste that alters the biological integrity of water." It claims the runoff from the tile is not agricultural storm water runoff but is a point source discharge requiring a CWA permit similar to any industry discharging water into a water of the United States.
The most dangerous claim in the January 9 letter has received little or no notice in the newspaper stories and reports on this case. DMWW claims that the nitrate concentrations caused by the drainage districts create state common law and statutory claims of nuisance, trespass, and negligence.
Rep. Worthan said in an interview DMWW should reel in their legal beagles and put them back on the leash. This is unlikely to happen.
Gary H. Baise is a principal at OFW Law (Olsson Frank Weeda Terman Matz P.C.). This article first appeared in Farm Futures magazine. The opinions presented here are expressly those of the author. For more information, go to www.OFWlaw.com.