Iowa Supreme Court hears arguments over water quality in Raccoon River

By: - December 16, 2020 1:28 pm

The Raccoon River is a major source of Des Moines drinking water. (Photo courtesy of Des Moines Water Works)

Environmental groups that want the state to regulate farm pollution running into waterways took their arguments to the Iowa Supreme Court on Wednesday.

Iowa Citizens for Community Improvement and Food & Water Action sued the state over pollution in the Raccoon River. They argued that the voluntary Nutrient Reduction Strategy the state employs to fight farm runoff is ineffective and amounts to an unconstitutional violation of Iowans’ right to clean water. The state generally exempts farms from regulations meant to reduce pollution in streams.

The state earlier asked Polk County Judge Robert Hanson to dismiss the case, but Hanson declined. The state appealed Hanson’s ruling to the Iowa Supreme Court, which held livestreamed oral arguments Wednesday morning. 

The environmental groups’ case is against the state, the Iowa Department of Natural Resources, former DNR acting Director Bruce Trautman, members of the Iowa Environmental Protection Commission, the Iowa Department of Agriculture and Land Stewardship and Agriculture Secretary Mike Naig. The plaintiffs hope a court decision would force the state to consider regulations to lessen pollution in the Raccoon. 

The environmental groups argue that the state has violated citizens’ rights by failing to adequately protect the Raccoon River from pollution, much of it from farms. The river, which feeds into the Des Moines River and eventually the Mississippi River, is a major water source for 500,000 people and a popular spot for fishing, canoeing, and kayaking.

“(CCI and Food & Water Watch) brought this action to protect their right to clean water in the Raccoon River,” the groups’ attorney, Brent Newell, told the justices.

The state asked the Supreme Court to dismiss the case. If the justices rule in favor of the environmental groups, the case will proceed through the courts.

Specifically, groups argued that the state’s program that encourages landowners to clean the waterway voluntarily violates river users’ rights under the due process clause of the Iowa Constitution and common law. They also contend the Nutrient Reduction Strategy, as the program is called, violates the public trust doctrine by failing to properly protect the river.

The parties asked for injunctive and declaratory relief, including declaring the Nutrient Reduction Strategy — the backbone of the state’s controversial, voluntary approach — unconstitutional. 

The state argues that the environmental groups lack standing to sue, haven’t raised issues the court can decide, and are asking the court to decide issues that belong in the political arena, said Iowa Solicitor General Jeffrey Thompson. 

Brent Appel is a justice on the Iowa Supreme Court. (Photo courtesy of Iowa Supreme Court)

At one point, Justice Brent Appel asked Newell if the case was too broad, akin to the U.S. Supreme Court considering cases related to who should fix the climate change problem. “Is this a peashooter problem? You want a remedy, but it’s a really complex problem caused by a lot of things,” Appel said. “You’re screaming for a solution but one that is not rifled and framed and amounts more to a statement of policy than a request for a remedy.”

Newell responded that climate change cases involve the actions of other countries, but this case centers on a single watershed under clear state jurisdiction. 

Justice Christopher McDonald asked Thompson about one element of the appeal. “Everyone agrees that at a minimum the public use prevents the alienation of rights in the river,” McDonald said. “If we agree on that, don’t they at least have standing?”

Newell said previous cases have laid out the public’s interest in navigable rivers. “Here we are alleging that the actions by the state are affecting the public’s recreational use of an uncontested navigable river, and also drinking water use that has been recognized as a public trust use in the authorities as well,” Newell said. 

Christopher McDonald is a justice on the Iowa Supreme Court. (Photo courtesy of Iowa Supreme Court)

Thompson objected to what the state sees as the plaintiffs’ characterization of the state’s voluntary approach to waterway cleanup. That approach has been supported by agricultural interests and others who feared any related regulations would be tied up in court for years and slow progress, but opposed by environmental groups and others who say it doesn’t go far enough and is ineffective. 

The Raccoon River has had some of the highest nitrate levels in the state, forcing the Des Moines Water Works to occasionally run a removal system at a cost of $10,000 a day. Nitrate has been associated with a blood condition that suffocates babies, and with several forms of cancer, at high levels. Des Moines tap water meets health standards for the pollutant.

In a previous federal lawsuit against drainage districts that also involved pollution in the Raccoon River, Des Moines Water Works alleged that the districts were point sources of pollution under the federal Clean Water Act. The federal district court threw the case out in 2017, after months of spirited debates among city and rural interests over how water quality in Iowa should be improved. 

In the case before the Iowa Supreme Court, Thompson claimed the plaintiffs have underplayed the power of the state’s voluntary water-quality approach.

“We’ve talked about Senate File 512, the voluntary policy decision, but in the context of almost as if that means we’re doing nothing and that’s the implication of the lawsuit,” Thompson told the justices. “But I just want to be clear and I think the record is clear that the nutrient reduction strategies that were embraced by Senate Bill 512 is not a do-nothing policy — it just doesn’t directly regulate nonpoint source runoff. But it’s replete with all kinds of reporting and funding incentives and economic incentives to try and address this issue and also sets specific targets.”

The court will rule on the case later.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Perry Beeman
Perry Beeman

Perry Beeman has nearly 40 years of experience in Iowa journalism and has won national awards for environmental and business writing. He has written for The Des Moines Register and the Business Record, where he also served as managing editor. He also is former editorial director of Grinnell College. He co-authored the recently published book, "The $80 Billion Gamble," which details the lottery-rigging case of Eddie Tipton.