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Judge: Water lawsuit can proceed


Another high-profile water pollution case in Iowa will proceed after Polk County Judge Robert Hanson threw out the state’s motion for dismissal.

Iowa Citizens for Community Improvement has teamed up with a Washington, D.C., nonprofit and a legal team that includes Roxanne Conlin to ask the court to force the state to come up with an enforceable plan to clean the Raccoon River. The river is a major source of drinking water for 500,000 Central Iowa residents and businesses and a favorite canoeing and kayaking spot for many recreationists. They want a moratorium on animal confinements in the area, and they note high nitrate levels in the Raccoon. 

Nitrate comes in part from farm fertilizers and has been associated with cancers and other illnesses. Des Moines Water Works has one of the world’s largest nitrate-removal systems, installed under federal orders decades ago. Treating high nitrate levels increases the cost of producing tap water. 

The plaintiffs, including Food & Water Watch, argue that Iowans are being directly harmed by the state’s failure to control pollution, much of it from agricultural sources. The state argued that the plaintiffs didn’t have standing in court, should have approached the problem through Iowa Department of Natural Resources actions and have not exhausted their other remedies before going to court. 

(The state’s governor-appointed Iowa Environmental Protection Commission and the DNR’s staff have routinely blocked or opposed environmental groups’ petitions attempting to force the state to comply with the federal Clean Water Act by setting standards for, among other things, nitrogen and phosphorus, which occur naturally but often flow into waterways from farm operations.)

Judge Hanson rejected the state’s motion to dismiss and ruled the case will go on. 

In this order filed Tuesday, Hanson wrote: “Here, Plaintiffs claim standing to sue Defendants under a public trust doctrine theory. Under a public trust doctrine theory, Plaintiffs allege that the public possesses certain inviolable rights to certain natural resources. These rights, Plaintiffs claim, include access and use of Iowa public waterways. Plaintiffs allege that their members suffer directly from aesthetic and recreational injury, actual injury and fear of injury from treated water, and injury from paying  additional costs necessary to treat the water. Assuming all facts and making all inferences in favor of the non-moving party, Plaintiffs will suffer from the claimed harm should the Court not grant the declaratory and injunctive relief requested by the Plaintiffs. They will suffer injury as a result of the untreated water of the Raccoon River being too polluted to enjoy either recreationally or aesthetically. The Raccoon River is arguably in such a poor state due to the State’s inaction in enforcing the State’s pollution requirements without restriction. They are likely to be unable to use the Raccoon River in any reasonable, functional manner, without heavy water treatment.”

Hanson also took a bit of a swipe at lawmakers. “On the facts as included in the petition, the only reason administrative agencies are involved in the State’s voluntary agricultural water pollution controls for nutrients is due to the action or inaction of the legislature. The legislature was responsible for enacting the voluntary Iowa Nutrient Reduction Strategy and making it the State’s official policy for nutrients. Plaintiffs allege in their petition that the voluntary Iowa Nutrient Reduction Strategy represents the minimum of state action, but the duty of the legislature is the enactment of laws that preserve the subject of the public trust and its beneficial use in the future by citizens of the State. Plaintiffs’ theory is that it is the legislature that is ultimately beholden to enforce the public trust and has the authority to delegate that authority, not the various administrative agencies that enforce the voluntary Iowa Nutrient Reduction Strategy. Even though the Department of Natural Resources has authority over manure land application and concentrated animal feeding operations, that authority is limited and does not include the authority to limit nitrogen and phosphorus runoff.”

Hanson basically said the plaintiffs would be wasting their time looking for help from the DNR, when state lawmakers pass the laws. “State law also prohibits the DNR from imposing concentrated animal feeding operations rules that are stricter than federal regulations; so the ultimate authority runs back to the State. The pleadings, taken on their face, do appear to indicate that pursuing relief via administrative remedies would be fruitless. As such, at least for purposes of dismissal, there is no need to exhaust the administrative remedies of the Iowa Administrative Procedure Act before proceeding to suit in the district court.” 

The lawsuit, which caused tension between urban and rural interests and uncounted political fights, is perhaps the most significant in Iowa since Des Moines Water Works’ federal action against upstream drainage districts that also sought to limit agricultural pollution in the Raccoon. That suit was thrown out by a federal judge

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