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Take this stream and shove it

Posted on June 19th, 2021

You may have heard that another lawsuit concerning the Raccoon River was dismissed by the Iowa Supreme Court. This latest one, pink-slipped in a 4-3 decision, was filed by Iowa Citizens for Community Improvement and Food and Water Watch. They asserted that the State of Iowa had violated the public trust doctrine, meaning the citizens of Iowa conveyed stewardship of our shared natural resources to the state and the state failed to fulfill the obligation with regard to the Raccoon River. The groups asked that the state create a mandatory remedial plan that would reduce nutrient pollution and ban new CAFOs in the watershed until the plan was implemented.

I’m not an attorney and I write this not to comment on the legal merits of the decision. Rather, I thought some dot connecting might be helpful to some readers and so that is my objective here.

The watershed drains 2.3 million acres of land (approximately 6% of Iowa) lying northwest of Des Moines. More than 75% of the area is cropped and there is intense livestock production in the upper reaches of the basin. Much of the western and southern extent of the watershed traces the edge of the Wisconsin glacier, and melting ice created lakes along this edge, most notably Storm and Blackhawk Lakes, 10,000 years ago.

The southern edge of the advancing glacier bulldozed grapefruit-sized rubble to the present-day Raccoon River valley in Polk and Dallas Counties. Torrents of glacial meltwater covered the rubble with sand, creating a one-in-a-million, Goldilocks (just right) alluvial aquifer where sand-filtered river water was easily extractable from the buried rubble. Engineers constructed a clever groundwater collection system giving Des Moines perhaps the safest pre-World War II drinking water of any big city in the United States. While thousands died of cholera contracted from drinking bad water at the turn of the last century, Des Moines was left unscathed thanks to rocks and ice.

Raccoon River Watershed; Iowa map illustrates the position of Wisconsin glacier 10,000 years ago.

Yield of water from the groundwater collection system couldn’t keep up with post-war population growth, and the Des Moines water utility started drawing water directly from the river in the late 1940s. Not long after that, cropping systems all over the corn belt underwent a transformation which saw the adoption of the current all-cash-crop-all-of-the-time scheme which reduced plant diversity in the Raccoon watershed and increased the use of chemical fertilizers. This resulted in regular contamination of the river and the alluvial aquifer with nitrate. Awareness of the problem increased in the 1970s, concurrent with enactment of the Safe Drinking Water Act (1974). The utility began removing nitrate from the treated water in 1992, and a few years later received a grant from EPA to conduct monitoring and public engagement activities to raise awareness of the need for better water quality.

There’s been plenty of posturing and grandstanding over Raccoon River water quality since then, but at times there seemed to be reason for optimism. There did appear to be some pause in the increase of nitrate levels in the 2000-2010 period, but the pollution came roaring back after the 2012 drought and the worst nitrate years have occurred since then. This ominous cloud is about the only cloud hanging over Iowa during this current drought year, and there likely will be very bad news when the rains return. But despite the occasional ray of hope that happens to appear every few years or so, looking back, I have to say the watershed has probably been a lost cause for quite a while now.

In 2010, Iowa DNR received funds from the American Recovery and Reinvestment Act to develop a water quality master plan for the watershed. Stakeholder organizations sent representatives on a week-long retreat to help provide information and expertise to develop the plan. I was one of those people. A plan was developed and posted for public comment. Iowa Farm Bureau Federation commented thus: “IFBF asks the final master plan focus on implementation options that recognize (the) right of watersheds to develop a voluntary plan of action to address the agricultural nonpoint source issues, that support ongoing water monitoring and science development, and avoids numeric targets for nitrogen, phosphorus and sediment or regulatory actions affecting fertilizer applications or other farmer management decisions.”

That comment has been Mission Accomplished.

Paraphrasing Matt Damon in The Martian, the scientists are going to science the shit out of this baby (currently about 2000 scientific journal articles at least mention the watershed). The human genome may have been mapped in 13 years, but evidently that is child’s play compared to sourcing Raccoon River pollution to its origin. Various groups are going to continue monitoring the river and its tributaries, and DNR and EPC will continue ignoring the data so they can cowardly avoid establishing numeric water quality targets. Farmers continue to have license to apply as much fertilizer as they wish and in the manner that suits them, and people in the upstream watershed WILL recognize their right to develop (or not develop, as the case may be) voluntary plans of action.

I know some will hate this paragraph, but I think it needs to be said. Over the past 20 years, the ag establishment and the watershed’s farmers have made a mockery of efforts to improve the drinking water source serving 1/6th of Iowa’s people, and Iowa’s appointed and elected leaders, including supreme court justices, have for the most part endorsed this. Supported by Iowa’s economic and political establishment, the larger body of the watershed’s farmers have no intention of trying to reduce nutrient pollution, and this has always been so. I’ve seen firsthand on many occasions the hostility to change, and this was before both lawsuits. I’m not stating this as a casual observer.

I do see an upside to all this and that upside is that agriculture has, whether they like it or not, claimed the stream for their own. The people that say they hate finger-pointing have shown us their middle finger, and in doing so have told the world who’s to blame for the water in the Raccoon River.

It’s all yours boys.

___________________________________

What follows is an analysis of the recent lawsuit decision. This was written by Neil Hamilton, Professor Emeritus of Agricultural Law and former Director of the Drake Agricultural Law Center at Drake University. I’m including it here with his permission.

Iowa Supreme Court Rejects Public Trust Doctrine challenge on Raccoon River water quality

Prof. Neil D. Hamilton, June 18, 2021

In a closely decided 4-3 split ruling the Iowa Supreme Court rejected a case filed by Iowa Citizens for Community Action and Food and Water Watch alleging the state of Iowa failed to protect the interests of the public in the Raccoon River.  The case involved an appeal from the district court rejection of the state’s motion to dismiss the case.  The majority ruled the district court’s decision should be reversed and the case dismissed, concluding the plaintiffs do not have standing to bring the suit and their effort to use the public trust doctrine to establish the duty of state officials is a “nonjusticiable political question.”  The majority’s ruling and analysis generated three separate dissenting opinions, all agreeing the case should move forward, in large part because the state had conceded the plaintiffs had standing and the merits of the public trust doctrine were not in question.

A reading of the majority opinion shows it was premised on a determination by the four justices to not involve the Court in the difficult and controversial political issues involving water quality in Iowa.  This motivation was demonstrated in at least four ways:

First, the majority used a new and somewhat strained interpretation of standing, involving tests not previously applied in Iowa from a federal case neither side had argued, to find the plaintiff’s claims did not show adequate causation and were not redressable. It reached the conclusion even though the state had conceded the plaintiffs had standing

Second, the majority rendered a narrow interpretation of the scope of the public trust doctrine, focusing on river access rather than the broader and accepted inclusion of recreation, even though the state had not challenged the plaintiff’s claims how the doctrine applied in the case.

Third, at several points the majority said the merits of the plaintiff’s claims were not before the Court, but it spent over ten pages of the ruling essentially considering the merits and possible judicial outcomes, to ultimately conclude the case involved nonjusticiable political questions.  As Justice Oxley said in dissent, “That the majority has decided the merits of the public trust issue is best seen in its discussion of the political question doctrine” explaining how it was not persuaded by the plaintiff’s showing.

Fourth, the majority ruling dismissing the case was described by the dissenters as being premature.  In the words of Justice Appel, the newly discovered elements of standing were “astonishingly applied at the motion to dismiss stage of litigation to dismiss cases involving important state constitutional issues.”

Justice Mansfield made a concluding comment which may crystalize variations in judicial philosophy, writing: “In the end, we believe it would exceed our institutional role to “hold the State accountable to the public.”  Those words, used by the plaintiffs to describe what they ask of us, go beyond the accepted role of the courts and would entangle us in overseeing the political branches of government.”  Some observers might ask if it is not the role of the Iowa Supreme Court to hold the State accountable to the public then who does have that role?

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13 Responses

  1. Allen Bonini says:

    Chris – thank you for so eloquently expressing what I am feeling and have felt for years about attitudes of farmers in the Raccoon watershed, and farmers in general throughout the state. As you and Neil imply, the fate of the River, and all our state’s waters are likely now hopelessly lost to a future of ongoing and further degradation. I sometimes believe farmers and the Farm Bureau would be more than happy if all the rest of us would simply move to some other state so they could plow up the remaining acres and turn Iowa into one giant corn field. I think that is what the Governor really means when she talks about “growing Iowa.”

  2. […] Jones, a researcher at the University of Iowa, writes in detail about the […]

  3. Martin Smith says:

    Allen Bonini’s mention of the Governor wanting to bring more workers to Iowa prompted me to extrapolate on the population trend. One fifth of Iowans now served by Des Moines water supply. By 20 18 population estimates, Polk County grew by 56,000 in 8 years, so I will guess 70,000 between official Censuses. Dallas County has grown faster in proportion. Most Iowa counties have lost population in recent decades. One wonders where the Governor thinks the workers she hopes will come to Iowa are going to find jobs. Recent history suggests it will be in the larger cities or metropolitan areas.

    Pushing the extrapolation another ten years, Polk plus Dallas go from something over 600,000 to over 700,000 population, about 95 percent getting their water from the Raccoon River or its alluvial aquifer. The political clout of the Des Moines area appears likely to continue growing. If other cities align with Des Moines on water issues, the refusal of the Farm Bureau and its allies to accept any responsibility for water quality may be overcome.

    The 2018 population estimates had the majority of Iowans in ten counties. In the 2020 Census, it may even be nine. In 2030, likely 8 or, even, 7.

  4. […] note: Chris Jones analyzed the implications of this Iowa Supreme Court’s ruling at his blog. […]

  5. Allen Bonini says:

    Martin – I agree with your analysis, in theory. I had looked at population densities and trends about 10 years ago and observed that about 2/3rds of the state’s population resides in the 9 metropolitan statistical areas. That gave me the naive hope that the urban areas would soon gain the political power to overcome the strong rural/farmer/Farm Bureau dominance over our political system. However I’ve come to appreciate that there are still too many “urban” Iowans that have strong ties to the farm. In my own suburban Des Moines neighborhood many of my neighbors have parents or siblings who still farm or they have inherited the family farm along with their siblings. Still others work for the FB or Pioneer or John Deere. So they have a belief that their economic interests are still strongly tied to Iowa farming. Thus they are hesitant to support any policies they perceive as threats to those economic interests. And the FB does a powerfully effective job of maintaining that image and belief. I have come to concede that it may take another 1-2 generations before this interests are sufficiently distant from their farming roots before the irrefutable demographic statistics you observe catch up to the deeply rooted, romanticized lens through which most Iowans see farming. Remember, most Iowans naively believe the myth that Iowa farmers feed the world and make us energy independent from that evil Mideast oil. And national politicians perpetuate these two myths every four years when they parade through Iowa to tell us how important farmers and farming are. Maybe if we grew food we actually eat (or at least should be eating) like fruits and vegetables, then I could buy into the schmooze.

  6. Robin Kash says:

    Are there clean streams and waterways in the midwest? Does any state regulate fertilizer application? Does any state require cover cropping? Does any state require crop rotation. Does any state regulate manure application?
    My sense is that the answer to all such questions is NO! That said, then any hope for cleaning up streams and waterways rests with the USDA and the EPA. The present administration seems as hopeless as Trump’s. Sec. Vilsack will sometimes talk as if something needs to be done, but not say that anything will be done.
    Industrial ag is a creature of big banks and hedge funds. As long as they are in control nothing is likely to be done. No Iowa Governor, Legislature, or Court will take effective action to clean up the streams and waterways.
    Even if individual farmers wanted to improve the situation, they’re helpless to do so. So many forces are stacked against them, they’re beaten before they start. Even those who have implemented recommended measures know that their efforts count for nothing except to give the powers that be examples of efforts being made. Cynical to the core.
    The worsening situation exemplifies the heart of the current, longstanding version of capitalism. It’s about money and nothing else matters.

  7. dmf says:

    “would entangle us in overseeing the political branches of government’ gotta appreciate them being so explicit about this…

  8. John Norwood says:

    A frequent paddler of different stretches of the Raccoon River, I have seen first hand many of the issues that impact the river water quality. Bank erosion, to tile lines dumping into the river, etc.

    What’s missing from the discussion is the fact that nitrogen, itself, really isn’t the principle problem. Nitrogen is an indicator of other contaminants, and with it’s sister contaminant, phosphorus, usually present when sediment is moving.

    It’s the sediment movement that is a big cost driver for local road infrastructure maintenance. It’s also an indicator of soil loss on our fields which is 10X what we produce annually. Those need to be part of the public discourse and drivers why we need to reintroduce diversity to the landscape which we removed through our public financial ag policy. AKA the Farm Bill.

    The Farm Bill is a key lever for change.

    • cjones says:

      John, from the perspective of the Polk County water supply, nitrogen is the principal problem. I have to wonder just how how well you are informed about the various issues if you don’t know this by now. But, maybe like the rest of agriculture, you dont spend much time thinking about drinking water issues.

      • Zach in WI says:

        Chris, I think you are misreading The Commissioner’s comment. John is a very skilled 4D propagandist, and his reply here is another master class in the strategy. He’s mainly working the distraction angle here.

        Using The Commissioner’s reply history on your blog as primary source evidence, we can conclude that he is pretty smart and pretty well informed. It is clear that he reads your posts, thinks critically about them, and formulates a reply based on the reading and thinking.

        If this is correct, it follows logically that The Commissioner is well aware of the danger posed by nitrogen in surface water, because you have hammered that point home pretty clearly in your blogs. Something else is going on here other than being uninformed.

        Let’s take a look at how he uses words and logic to make a point and persuade. He starts out by reminding us that he is a frequent paddler on the Raccoon River. This is the same logic that farmers and the rest of Big Pollution use when they try to tell us that “we all want clean water”. I did this a lot when I was shilling for Big Pollution for wages. I was and am a big outdoorsperson, and I would often argue that my love of nature put me above reproach. John even cops to seeing bad stuff that he doesn’t like and says needs to change when he is out paddling. See he is well informed and even tuned into the destruction that is going on around us!!!

        Another distraction tactic The Commissioner uses is to bring up the phos and sediment issues. This does a couple things: 1. It makes it look like he is not actually running distraction because he is bringing up and apparently being frank about another issue that needs to be addressed. and 2. Actually does distract from the N issue which is an existential threat to the ag power structure in a way that phos and sediment are not.

        Lastly, The Commissioner brings the feds into the conversation. Another classic distraction tactic. While he may well be correct that the Farm Bill will be a part of the solution here, John is actually an elected official that actually has power to do things. The legislature at the federal level is supremely undemocratic. Working people do not have a say in what goes into the Farm Bill. Though democracy is weak everywhere in this country, on the local level some real democracy does still exist. When The Commissioner was elected in 2018 there were 207,423 votes cast in Polk County, a 66.77% turnout. For people in Iowa trying to make things better, DON’T WORRY ABOUT THE FARM BILL TOO MUCH. YOU CAN’T REALLY DO ANYTHING ABOUT IT. GO AFTER THE COMMISSIONER AND OTHER GOONS LIKE HIM IN LOCAL POLITICS. BUILD AND RECOGNIZE YOUR POWER BY WORKING COLLEVTIVELY TO TAKE DOWN THE BAD GUYS.

  9. […] this stream and shove it” [Water Quality Monitoring and Research]. “I know some will hate this paragraph, but I think it needs to be said. Over the past 20 […]

  10. […] this stream and shove it” [Water Quality Monitoring and Research]. “I know some will hate this paragraph, but I think it needs to be said. Over the past 20 years, […]

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