DES MOINES, Iowa — The Des Moines Water Works (DMWW) board unanimously voted last week to sue three northwest Iowa counties over high levels of nitrates discharged into one of the state’s major tributaries. It has been called the nation’s first legal case of its kind and could set a national precedent if subsequently won,

“Drainage districts are a source of high nitrate concentration in our water supply, and the Sac County Board of Supervisors have failed to take any meaningful action to protect downstream users from unsafe levels of nitrate introduced into the Raccoon River,” said Bill Stowe, DMWW CEO and general manager.

As a 30.8-mile tributary of the Des Moines River in central Iowa, the Raccoon River is part of the watershed of the Mississippi River. Stowe said these drainage systems in the three counties quickly transport nitrate by groundwater to the nearest waterway, bypassing natural absorption and de-nitrification processes that would otherwise protect the watersheds. 

“Des Moines Water Works is taking this decisive action to underscore that the degraded condition of our state’s source waters is a very real problem, not just to Des Moines Water Works,” he added, “but to the 500,000 customers we serve, as well as to Iowans generally who have a right of use and enjoyment of the water commonwealth of our state.” 

The board issued a notice of intent to sue, alleging the governing authorities of 10 drainage districts – namely the Sac County Board of Supervisors, Buena Vista County Board of Supervisors and Calhoun County Board of Supervisors – are discharging pollutants into the Raccoon River without the permits required by law.

The notice of intent to sue is a 60-day notification under the citizen suit provision of the Federal Water Pollution Control Act (commonly known as the Clean Water Act) and Iowa Code Chapter 455B. 

According to the lawsuit, Des Moines-based DMWW in central Iowa uses both the Raccoon and Des Moines rivers as water sources and has experienced extremely high concentrations of nitrate in both rivers in the spring and summer of 2013 and the fall and winter of 2014. 

Under the Safe Drinking Water Act, the maximum contaminant level (MCL) for nitrate is 10 mg/L. Stowe said this standard is set by the EPA, and DMWW is legally obligated to provide clean and safe drinking water that meets this MCL standard.

Stowe said recent DMWW water monitoring at 72 sample sites in Sac County had shown nitrate levels as high as 39.2 mg/L in groundwater discharged by drainage districts, correlating with measurements by the United States Geologic Survey (USGS), a scientific agency in the U.S. government at monitoring sites along the Raccoon River. 

In 2013, when nitrate levels in the Raccoon and Des Moines rivers were at a record high, Stowe said DMWW incurred approximately $900,000 in treatment costs and lost revenues, he added.

Neil Hamilton, director of the Agricultural Law Center at Drake University, told the Des Moines Register that he’s “unaware of any precedent for this type of dispute” but said the issue has merit.

However, Iowa Agriculture Secretary Bill Northey, who will hold public meetings Jan. 20-21 to address concerns about the lawsuit, said DMWW’s action is “the wrong approach to address the important issue of improving water quality.”

“It continues the negative, antagonistic and unproductive approach by the current leadership at Des Moines Water Works,” he said in a Jan. 14 statement. “Working with farmers and investing in additional conservation practices are what is needed.”

Bill Couser, Nevada, Iowa, cattle producer, agreed. At a Jan. 8 public comment session to address the board, Couser said “we don’t need more rules and regulations. We need cooperation.”

John Torbert, executive director of the Iowa Drainage District Assoc., said DMWW’s legal action against the three counties was hypocritical because DMWW itself discharged about 13,500 pounds of nitrates into the Raccoon River in 2013 alone, according to a June Register report.

But Stowe told the Register in a Jan. 8 interview that “the practice continues because state authorities have not permitted anything else.”

“We’re still doing it today, but we’re operating under a state permit that not only allows us to do it, but insists that we do it,” he claimed.