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Monday AM Daily | March 20, 2017
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Judge throws out Des Moines Water Works nitrate case
By Perry Beeman | Senior Staff Writer
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A federal judge on Friday dismissed Des Moines Water Works' pollution lawsuit against drainage districts in three northwest Iowa counties, saying that the Iowa Legislature is in position to decide the fate of the state's waterways — and the drainage districts don't have the power.

The decision brought an immediate flurry of news releases in which Agriculture Secretary Bill Northey and farm groups said the decision takes away a divisive distraction from the work on the voluntary measures called for by the state's Nutrient Reduction Strategy, which lays out many possible actions but sets no timetable, monitoring system or penalties if a landowner chooses not to employ them.

Water Works CEO Bill Stowe said the utility will consider what to do next, but he made it clear the ruling leaves the state with the Nutrient Reduction Strategy as its main pollution-fighting mechanism — a document he has criticized as indicative of state leaders' refusal to take serious action to stem pollution that drives up ratepayers' bills.

"We are disappointed in the ruling and the court's unwillingness to recognize the profound water quality impacts that pollution from drainage districts has on Iowa waterways," Stowe said in a statement. "Perhaps the state legislature should now spend its time addressing meaningful, long-term, sustainably-funded policy solutions to our serious water problems instead of meddling in affairs best left to local communities."

Gov. Terry Branstad, without providing details, said the state now should move on with its strategy. "I'm pleased to see an end to this costly litigation brought about by the Des Moines Water Works," Branstad said in a statement. "From the very beginning, we've attempted to work in a collaborative way with our partners in the field and our communities to improve water quality in Iowa. That's the Iowa way. Now, we can finally put this distraction behind us and focus on the full implementation of the nutrient reduction strategy."

The case was perhaps the hottest environmental argument the state has seen. It pitted an alliance of politically powerful ag groups and the likes of Des Moines City Councilwoman Christine Hensley against the brash Stowe — who has a law degree — in a debate that many tried to cast — perhaps misleadingly — as a rural vs. urban fight.

Judge Leonard Strand's ruling confirmed the suspicion of ag groups that a recent and related Iowa Supreme Court opinion that said Water Works couldn't recover damages from the drainage districts in Calhoun, Buena Vista and Sac counties most likely would soon lead to dismissal of the whole case. But Strand did not rule on the second key question Water Works raised — one that quickly brought national attention and D.C. lawyers into the fray — that the drainage districts amounted to point sources conveying polluted groundwater rather than the ag runoff that typically has been seen as exempt from regulation under the U.S. Clean Water Act.

The Iowa Legislature is considering several bills that would funnel tens of millions of dollars to address what the state's own report calls a multibillion-dollar problem. Environmentalists had feared that Water Works' losses in the case might mean lawmakers would decide to take little action to increase spending on fighting the nitrate pollution, which can cause a variety of cancers and other illnesses if not treated.

Even as Strand considered the case — which never went to trial after predictions of a decade-long fight — state lawmakers brought another controversy by considering a bill from a rural legislator that would have disbanded Water Works, ending the federal case by removing the plaintiff. That legislation is still pending, as are the bills governing how much the state pays on cost shares and other actions to control pollution.

Water Works faced strong legal precedents protecting drainage districts from damage claims and agricultural operations — in most cases — from Clean Water Act actions. But the utility said the severity of the situation — and the point-source nature of the ditches — warranted consideration by the court.

Business Record InsiderNeed a refresher? Find our primer on the case at BusinessRecord.com.

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April 21: City Wide Trash Bash
Host: Des Moines Westside Chamber of Commerce
About: The Annual City Wide Earth Day Trash Bash is on the calendar and planning is in process. We yearly clean up the Ingersoll area between MLK and 42nd Street. Great exercise, feel good environmentally and meet lots of folks along the way.
When: 1 to 4 p.m.
Where: Meet at Jesse's Embers Restaurant
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Today:
A mix of clouds and sun. High near 65. Winds NNE at 10 to 20 mph.

Tonight:
Partly cloudy early with increasing clouds overnight. Slight chance of a rain shower. Low 39. Winds NNE at 10 to 15 mph.

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Today:
3000 block of East Douglas Avenue - eastbound
4400 block of Ingersoll Avenue - westbound
2900 block of Indianola Avenue - northbound 

Tomorrow:
300 block of East McKinley Avenue- eastbound
1800 block of Fleur Drive- northbound
5300 block of Aurora Avenue - eastbound

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