Case dismissed

BY ART CULLEN

Federal District Court Judge Leonard Strand’s dismissal Friday of the Des Moines Water Works lawsuit against Buena Vista, Calhoun and Sac counties means the status quo will prevail. Agriculture will not be regulated under the Clean Water Act — specifically, drainage tiles will not be treated as point sources of pollution subject to regulatory permitting. Agriculture will continue to operate as it has. Drainage tiles will deliver tons of nitrates and phosphorous to the Raccoon River. The drinking water customers in and around Des Moines will continue to pay to clean it up. Des Moines will continue to dump salt and nitrate back into the river, where the pollutants will find their way to the Gulf of Mexico. The dead zone in the gulf, about the size of Connecticut, will continue to grow. Coastal marshes and reefs at the mouth of the Mississippi River will continue their rapid decline, threatening the entire coastal economy.

The judge dismissed the case essentially over standing, that the water works did not have the authority to sue. The water works board and attorneys knew this would be the problem a year before they filed their lawsuit. DMWW CEO Bill Stowe told us, and we reported, in 2014 that the utility knew it would have problems. It was having a hard time figuring out whom to sue. The problem always would be one government agency suing another. Drainage districts were the worst defendants because they have almost no authority under Iowa law, and certainly no express authority in remediating pollution claims. The Iowa Supreme Court said so. Strike one. Judge Strand said so. Strike two. If the water works were to appeal a summary judgment to the Eighth Circuit in St. Louis, we can hear strike three sizzling over the outside corner. If the water works survives that long. The Iowa Legislature may dissolve it in the next few weeks.

No doubt the Buena Vista County Board of Supervisors is relieved. It never picked this fight, but it enjoined it with gusto. The supervisors said they could not negotiate with the water works as we urged from the gitgo because they lacked the authority under the law. Strand took their side. Their legal expenses were funded largely by the agri-industrial complex. We argued from the start that the taxpayers of Buena Vista County deserve to know who was writing the checks and calling the shots. The supervisors ended their illegal, secret funding relationship with the Agribusiness Association of Iowa after The Storm Lake Times and the Iowa Freedom of Information Council demanded transparency. We asserted that the counties should communicate and try to negotiate with their adversary to avoid an unfavorable judgment for the county from a single federal judge. The counties bet on their case and won. The names of the donors remain secret. Farm Bureau made a pledge that it has not backed up to pay for the counties’ legal defense. The Belin Law Firm has not submitted bills to the county since July. They could be in the hundreds of thousands of dollars. We still would like to know who will pay those bills and how. We think it remains the public’s business.

Nitrate pollution exists. Those are uncontroverted facts from the court documents. The corn growers admit it. The soybean growers admit it. Everybody knows it.

What do we do about it going forward?

Not that much.

If people did not want to get paid $357 per acre for a filter strip from the government when the lawsuit was alive, what would compel them to put in that filter strip tomorrow? The Trump Administration and a hostile House promise to cut agricultural conservation and research funding substantially. That filter strip rent is not going up. Farm Bureau argues that Conservation Reserve Program rents are so high that they are keeping young farmers out of business. The federal government will not expand conservation programs in the near term.

The state will continue to cheer farmers to mess around with cover crops, bioereactors and the like. But there is nothing in the basic composition of Iowa that will drive the legislature to address agricultural pollution of our surface water. We will continue to practice a voluntary nutrient reduction program that has seen nutrient overloads in our rivers grow, not lessen. The dead zone in the gulf has grown every year of the nutrient reduction strategy. That is not Iowa’s concern. At least, not when corn is near or below the break-even point. A farmer paying $300 cash rent needs every acre he can plant when corn is stuck at $3, which is where it will be stuck for the foreseeable future.

Look along the Varina road. They were plowing through the ditches before and during the lawsuit, and they still are. There is seldom a blade of grass allowed to pop up along the ditch we know as the Cedar River. All our problems would be solved if we left just a strip of grass along every waterbody. But we grow beans on the banks of Pickerel Lake, owned and managed by the Iowa Department of Natural Resources.

That’s the Iowa way. It always has been. The water works tried to turn things around but was swept out of court summarily. The court is right: This is an issue for the legislature to decide. It is not for a judge to decide by himself in chambers how Iowa shall conduct itself. The legislature may well just eliminate the water works entirely. The legislature could live with that, along with a polluted Raccoon River.