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DAVID KRUSE

By Staff | Oct 23, 2015

By SAM HARPER

Pro-Crop farm management

By know you may have read something about the Des Moines Water Works lawsuit versus three northwest Iowa drainage districts in the Raccoon River watershed.

DMWW strategically selected these rural drainage districts in northwest Iowa specifically because of their remote location in relation to the more urban areas of the watershed closer to central Iowa.

The small number, around 100 families, located in these drainage districts probably were considered to have few resources to be able to wage an expensive defense against DMWW or the Environmental Protection Agency.

Comparatively, the DMWW has more than 500,000 rate-paying customers that use water from this same Raccoon River watershed as one of its sources of drinking water.

DMWW can charge fees to their ratepayers to cover legal expenses of law suits they bring. That may be cheaper than increasing regulations.

This is a citizen suit under the Clean Water Act that claims the drainage districts are point sources of pollution and need National Pollutant Discharge Elimination System permits from the EPA.

The NPDES permit program controls water pollution by regulating point sources that discharge pollutants into U.S. surface waters. Point sources are discrete conveyances such as pipes or man-made ditches.

DMWW has been monitoring the rivers using U.S. Geological Survey data for a long period now. These districts were also selected because they are least likely to have other sources of run-off that would raise nitrate levels than areas closer to Des Moines.

The lawsuit is a huge test for CWA and EPA definitions relating to storm water discharge and whether the court will consider farm tile drainage as point source pollution.

I think this is a big burden for the plaintiffs to prove.

There is more to this battle than the actual lawsuit. The Court of Public Opinion is in session, too.

This lawsuit is aimed at one pollutant only – nitrates. Farmers have been tiling and farming Iowa soils for more than 100 years.

The issue of nitrates in our water was there before these field draining practices began and will continue regardless of best conservation practices; and this doesn’t mean we don’t want to mitigate the levels by implementing good conservation strategies.

I think DMWW arguments for regulation are based more on economics for the DMWW, not solely about concerns for water quality.

The costs for nitrate removal are part of all water treatment facilities and DMWW needs to replace their aged system. DMWW’s service area has grown significantly over time.

Bill Stowe, DMWW’s chief executive officer, is using the nitrate removal angle, but the reality is the growth in DMWW service area is testing the capacity of DMWW.

Their system is old. The rate payers should have to cover this expense, not the land owners of the three counties in the lawsuit.

The scale of the DMWW lawsuit is huge. DMWW considers tile outlets a point source for pollution.

If so, they should be required to be permitted as point sources of pollution. Consider this – today there are 16,000 permitted point sources in the 50 states.

In Iowa there are 88,000 or so farmers and about 3,000 drainage districts. There are 500,000 to 1 million estimated tile lines on the approximately 480,000 land units.

Additionally, the criteria set to monitor the nitrates would be difficult. Iowa’s rich soils naturally contain high levels of organic nitrogen. Farmers supplement this with nitrogen that is more plant available. When harvested, farmers have removed more nitrogen from the system than they applied.

Seasonal harvest is one reason we see spikes in nitrates in tile water though. Planting cover crops has been scientifically proven to help absorb nitrates when the corn or soybeans are done growing.

Will regulators be able to find large-scale methods to determine if the nitrates escaping the soils are from farm applications, or naturally occurring nitrogen?

When the DMWW filed intent to sue earlier this year, it gave the districts 60 days to negotiate a suitable course of action.

Of course no such agreement was, or ever was going to be, reached with DMWW. It claims that agriculture wouldn’t comprise.

The reality was DMWW was only going to agree if permits and regulation were agreed to. Stowe and his board’s heels are dug in. They stand on their platform firmly that the state of Iowa has done nothing to help improve water quality so far and without regulation it will stay this way and possibly get worse.

Litigation and regulation is the solution to pollution. If this gets to trial this case may end up costing more than $10 million, according to several projections. It may end up going through several appeals and eventually the U.S. Supreme Court may see it before a final settlement is reached.

Our ancestors discovered how productive Iowa was. They came up with a plan to drain the farm land so our grandparents and parents could farm it.

Now it’s our turn. In some cases that means updating tile or drainage districts that are 70 years old.

In other cases it means taking measures to protect our waters with buffer strips and erosion control measures. Preventing field runoff with better tile drainage and buffer strips reduces surface flow of harmful nutrients like nitrogen and phosphorus.

The costs for the practices are spread over time and generally paid for out of the pocket of land owners.

Someday it will be the next generation’s turn to do the same.

David Kruse is president of CommStock Investments Inc., author and producer of The CommStock Report, an ag commentary and market analysis available daily by radio and by subscription on DTN/FarmDayta and the Internet.

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