This year will hear the lawsuit that could change Iowa agriculture

EDITOR'S NOTEBOOK

BY ART CULLEN

Nothing stands in the way of the Des Moines Water Works lawsuit against Buena Vista, Calhoun and Sac counties over nitrate pollution of the Raccoon River reaching a federal bench trial this June in Sioux City.

All hopes for a mediated settlement fell apart with the Democrats’ loss of a Senate majority in the November elections.

Republicans control the House and Senate by comfortable margins. Lt. Gov. Kim Reynolds has solid party support as she will take the reins sometime soon from Gov. Terry Branstad, who heads off to China as the US Ambassador. The Farm Bureau and commodity groups have pledged to cover the counties’ defense, so they have deep pockets to see them through a trial and appeal.

The water works, meanwhile, remains committed to its claim that drainage districts should be regulated under the Clean Water Act. Drainage districts, the suit alleges, governed by county boards of supervisors are dumping excessive amounts of nitrogen and phosphorous into the Raccoon River. The water works has to clean up the water to make it safe for consumption.

The Republicans say that water quality funding is their priority this session. But party leaders want no tax increase. The arithmetic is difficult to come up with a number that can buy off the water works’ claim (well over $100 million) without gutting the rest of the state budget. Water Works CEO Bille Stowe scoffs at most of the plans as political posturing — “See, we tried, but the nasty water works just wouldn’t go along with us.”

The Republicans’ other tack is to defang the water works — dissolve it, reorganize it to make the lawsuit go away, or throw in a bill preventing utilities from making such claims. The water works is committed to suing over any such bills that find their way into law. So while those lawsuits go on, the water works’ federal suit against the counties steams down Highway 20 to Sioux City.

Nothing is set up to turn the dynamic around.

Former Senate Majority Leader Mike Gronstal had called for a water quality summit after the elections. He lost. House Speaker Linda Upmeyer has not taken up where Gronstal left off. Nor has incoming Senate Majority Leader Bill Dix. The water quality summit will be in the Republican caucus rooms, and the water works and the counties are not invited.

Nobody can see how any of this leads to a settlement of the lawsuit before June. Something else must happen to change the trajectory.

There is no public pressure for it.

The Iowa Supreme Court could play a card when it rules on a side question for the federal court: Can drainage districts be sued for money damages? The high court does not have to answer the question for the federal judge. If it were to take that approach, you would think the justices would have already done so. Oral arguments were in September. No opinion yet. But the state court could alter the course of the litigation.

If it makes it to trial, the case will be heard by Judge Leonard Strand, a Grassley nominee appointed by Obama. There will be no jury.

The judge will have to decide, essentially, if drainage tiles are point sources of pollution as sewage treatment pipes are. Agriculture has been exempted from regulation as a “non-point source of pollution” under the Clean Water Act since 1972. Each side has excellent lawyers well-versed in federal law. Nobody can honestly say how it will turn out.

The judge could rule later this year that drainage districts are liable for pollution claims and must be regulated. The ruling will be appealed. It could take several more years to work through the appellate process. In the interim such a ruling would be a bombshell for Midwestern agriculture. It could reorder the ag supply chain, already under immense pressure, in ways hard to predict.

Or the judge could set the claims aside. Presumably, then, everything goes on as it has. The water works passes the costs of nutrient removal onto its customers in Des Moines and the suburbs.

The counties have refused any sort of mediation so far. They believe they can win.

So does the water works.

The two most prominent voices for mediation — US Agriculture Secretary Tom Vilsack and Gov. Terry Branstad — are out of the discussion.

Iowa is playing with fire. We are laying our state’s economic future in the hands of one judge who could change everything. The die is nearly cast.