Des Moines Water Works won't appeal lawsuit

Des Moines Water Works will not appeal a federal judge's decision to dismiss the utility's lawsuit against 10 northern Iowa drainage districts over high nitrate levels in the Raccoon River.

The Water Works Board of Trustees unanimously made the decision Tuesday, ending a more-than-two-year legal battle.

“Central Iowa will continue to be burdened with expensive, serious and escalating water pollution problems," Water Works CEO Bill Stowe said in a news release. "The lawsuit was an attempt to protect our ratepayers, whose public health and quality of life continue to be impacted by unregulated industrial agriculture.”

Des Moines Water Works filed a federal lawsuit in March 2015, claiming drainage districts in Sac, Buena Vista and Calhoun counties were funneling high levels of nitrates into the Raccoon River, a source of drinking water for 500,000 central Iowa residents.

The board agreed to spend $1.35 million to pursue the lawsuit.

"The board views these resources would be better spent finding other avenues to pursue environmental protection rather than legal action, like trying to affect public policy through lobbying," Stowe said.

The lawsuit contended that drainage tiles used to make farmland more productive were short-circuiting natural conditions that otherwise keep nitrates from entering streams and rivers.

The utility sought damages and penalties for the costs it incurred removing nitrates from central Iowa drinking water. Water Works said it spent $1.2 million to operate its nitrate removal equipment in 2015.

It also sought to have the drainage districts, and indirectly farmers, regulated under the federal Clean Water Act as a "point source" of pollution, much like businesses and manufacturing plants.

"We’ll pat ourselves on the back and say people are talking about water quality … but the job is far from done. To sit here today and say I feel great about this, I would be lying to you," Water Works Board member Graham Gillette said Tuesday.

High nitrate levels in drinking water can cause blue baby syndrome, a condition that can be fatal to infants six months and younger if not treated. But some studies also have linked even moderate nitrates levels to health concerns that include birth defects, cancers and thyroid problems.

Judge Leonard Strand dismissed the lawsuit March 17, saying Iowa's water quality problems are an issue for the Iowa Legislature to resolve. Strand wrote that Des Moines Water Works "may well have suffered an injury" from the high nitrate levels, but the drainage districts had no power to address the issue.

Representatives from Iowa Citizens for Community Improvement urged the Water Works Board to appeal the lawsuit dismissal at Tuesday's meeting.

"This board needs to show tenacity to continue to be the beacon of light and champion against corporate self interests and the Farm Bureau," Cherie Mortice, president of Iowa CCI, urged the board. "Allowing business as usual will cost ratepayers even more in the future. Don’t drop the ball now."

The decision not to appeal the judge's ruling comes as a controversial bill to dismantle Des Moines Water Works appears likely to die in the Iowa Legislature.

Stowe has called the legislation retaliation for the utility's lawsuit and a "money-grab" by the city of Des Moines, which would have inherited much of the utility's assets. He chastised the Legislature on Tuesday for focusing on efforts to close the utility rather than working to improve Iowa's water quality.

"We hope that, rather than wasting valuable time and resources crafting legislation designed to punish Des Moines Water Works for filing the lawsuit, our legislators can create bold laws that address water pollution," he said.

Republican lawmakers have denied the legislation was related to the lawsuit. Rep. Jarad Klein, R-Keota, said the bill was intended to provide suburban customers with better representation over decisions involving their drinking water.

Senate President Jack Whitver, R-Ankeny, said Monday that he would like to see talks continue on regional representation for central Iowa water customers.

"I'm confident our future conversations on regionalization will move forward successfully, not because of legislative interference," Stowe said. "It's actually because Urbandale, West Des Moines and Des Moines water boards joined together to face a common foe."