Farmers and other landowners in Iowa continue to watch with interest the activities unfolding in the pending lawsuit filed earlier this year by the Des Moines Water Works. The utility is suing the county boards of supervisors in three northwest Iowa counties—Buena Vista, Calhoun, Sac—over high levels of nitrates coming off farm fields. The supervisors oversee the drainage districts in the counties, and farmers farm in the districts. So indirectly, farmers are being sued.

Related: Fishing for a solution to Iowa water quality lawsuit

The lawsuit claims the districts and farmers aren't doing enough to keep nitrates from entering streams and eventually the Raccoon River. The utility is seeking federal regulation of drainage districts and indirectly, stricter regulation of farmers. The Water Works wants the government to regulate water coming out of field drainage tile, similar to how point-source discharge of water from factories is regulated. The Water Works lawsuit also seeks monetary damages.

Iowa Partnership for Clean Water may get a $40,000 bill
The Water Works claims the drainage districts act as conduits, funneling nitrates from farm fields into the Raccoon River, which eventually flows through Des Moines and is a source of drinking water for the City of Des Moines and 500,000 residents in central Iowa. The Water Works operates a nitrate removal facility, and says it spent more than $1.5 million over the past year to remove nitrates from the water. And it says it faces the need to build a larger nitrate removal facility, costing as much as $180 million because of high contaminant concentrations in the river water.

The Iowa Partnership for Clean Water opposes the lawsuit. The group is encouraging other alternatives such as installing and using more conservation practices on the land rather than creating increased regulation. The IPCW is trying to pull together more information to help solve the water quality issue.

The IPCW issued a press release Nov. 5 saying Des Moines Water Works wants IPCW to pay an unprecedented $40,000 for access to water quality records and other information the utility has already gathered to prepare for the lawsuit. IPCW wants the info because "it could help provide a resolution toward resolving the pending lawsuit."

Water Works says IPCW is making a "voluminous request" for records
The Des Moines Water Works said in a statement it is unable to make a precise estimate because of the "costs of locating, selecting, reviewing and reproducing the records cannot be known in advance of actually completing the effort." Water Works officials say they have provided IPCW a good-faith estimate of $40,000 which "we believe is a fair representation of the extensive effort that would be required to gather and provide the information. Certainly, the Iowa Partnership for Clean Water would be responsible only for the actual costs, which may be lower or higher than our estimate."

Previously, Des Moines Water Works pushed to have court documents sealed, pertaining to the lawsuit. The IPCW says many of the documents have already been prepared for the lawsuit and some of those records have been sealed. The IPCW, led by Cedar Rapids mayor Ron Corbett, and Patty Judge, the state's former lieutenant governor, say they believe the Water Works "has something to hide" and that's the reason the utility isn't being cooperative in releasing the requested information.

Farmers and IPCW members are frustrated with Water Works
In another development, the Water Works has increased ratepayer funding of the lawsuit to $700,000. Water Works customers will pay for the cost of the lawsuit, as the money comes from monthly water bills homeowners and businesses pay.

"We are frustrated. We've requested the documents and we don't understand why the Water Works hasn't provided the information," says Don Kass, a farmer who is a Plymouth County supervisor and an IPCW board member. "We'd like to review the information the Water Works has, so we can identify alternatives to this harmful lawsuit. The lawsuit would be costly and it won't solve water quality issues."

Related: Des Moines Water Works lawsuit heats up

Farm organization leaders point out that farmers are adding conservation practices such as cover crops, saturated buffers and bioreactors that help reduce nitrogen leaching. The say that the solutions require time to get into place.

IPCW strongly believes a lawsuit is not the right path forward
IPCW is interested in evaluating the extent of the problem that Des Moines Water Works alleges, especially given the recently announced 10% rate hike and nearly $500,000 retention bonus planned for Water Works CEO Bill Stowe in 2020.

"It is disappointing to see the Water Works dedicating huge sums of money to a CEO bonus at this time," says Christine Hensley, a Des Moines City Councilwoman and IPCW board member. "Especially after announcing a 10% rate increase, it would be nice to see investments in new infrastructure, which would make real progress toward the improvement of water quality."

"It is in the best interest of all Iowans to identify and examine alternative solutions," she adds, "including a plan for a regional water system and collaborating with rural and urban Iowans to improve water quality."

Water Works officials say they are frustrated with IPCW
Des Moines Water Works officials counter this criticism, saying they are working to respond, "generally within days, to each inquiry that is made." So far, IPCW has made seven separate attempts to get information, some dating back to information the Water Works has that is 41 years old. There are a number of practical and logistical problems to be addressed before the Des Moines Water Works can provide the records, say Water Works officials.

More: Des Moines Water Works updates

Water Works officials say they've offered to "provide non-confidential documents as produced in the litigation. We estimate the cost of this effort to be much less, around $5,000 or so." The IPWC claims the utility is purposely delaying meeting the records request. The utility has "pushed to seal court documents as pertaining to the case and unilaterally increased ratepayer funding of the lawsuit to $700,000."

Another new twist: counties say lawsuit can't seek damages
On October 28 attorneys for the drainage districts in northwest Iowa issued a statement that the Des Moines Water Works can't seek damages from the districts, given the districts' have only limited power to assess taxes against property owners. However, attorneys for the Water Works say the drainage districts' "implied immunity" will need to be determined by the court.

Attorneys at Belin McCormick, a Des Moines law firm representing the three northwest Iowa counties, want the federal court to dismiss the Water Works request for damages, saying that "neither the county board of supervisors nor the drainage districts has power to impose a general tax." And, "drainage districts do not have the power to direct landowners' use or management of their property. Much like the builder of a highway doesn't control what travels over the highway, drainage districts do not control what goes through drainage tiles."

However, attorneys at Dickinson, Mackaman, Tyler & Hagen, representing the Water Works, say denying the utility damages violates its equal protection and due process rights by "depriving all those downstream, of any effective redress for wrongs."

For more information visit www.iowapartnershipforcleanwater.org.