Water Works: Lawsuit would offer 'reset button'

By Graham Gillette and Bill Stowe

The Des Moines Water Works board of trustees voted unanimously on Jan. 8 to pursue legal action under the citizen suit provision of the Federal Water Pollution Control Act, commonly known as the Clean Water Act. Des Moines Water Works did so only after exhausting every reasonable effort to engage in productive dialogue about the increasing presence of agricultural pollution in the water supply. It is our belief and great hope that such dialogue can still occur, and we stand ready to be a part of the solution.

For the last decade nitrate levels in both the Des Moines and Raccoon Rivers, the primary source of water for the approximately 500,000 people we serve, have been peaking at concentrations and loadings dangerous to humans. For even longer, Des Moines Water Works representatives have been engaged in discussions and have served on numerous study commissions, task forces and similar cooperative efforts with the state of Iowa, local governments, businesses, agricultural interests, academia, citizen groups and individuals to explore ways to stem this threat to Iowa and Iowans.

Efforts such as these are only successful when those who begin on opposite sides of an issue are able to put their own interests aside and acknowledge the difficulties their counterparts face. Unfortunately, Iowa's voluntary Nutrient Reduction Strategy places agriculture's interests first. Under this scheme, the people of Iowa are left to blindly trust that those upstream are taking steps to improve water quality. The state has been unwilling to put even regular monitoring and testing measures in place to show if its so-called strategy is working.

We acknowledge and honor the important role agriculture plays in Iowa. Further, we understand reducing nitrate and agriculture pollution in our waterways is a difficult issue that will not be solved in 60 months, let alone 60 days. Contrary to Gov. Terry Branstad's assertion, the lawsuit we intend to pursue is not the first shot fired in some fictitious war between Des Moines and rural Iowa. It is an effort to push a reset button on the unproductive discussions of recent years.

Des Moines Water Works is seeking agreement on a few simple facts and that entities such as agricultural drainage districts be subject to reasonable standards. If necessary, we are prepared to ask the courts to help mediate this matter, but we remain ready to seek solutions in less litigious ways.

It is important to remember that this issue is not about run-off from farm fields. Today's highly engineered and increasingly efficient drainage districts in our watershed move groundwater infused with nitrate from intensive agriculture operations directly through a complex system of pipes to the stream heads and rivers that serve as the water source for a large portion of our state. If left to its natural course, much of this groundwater would never move into rivers and streams and that which does would be filtered through a natural process that would reduce the nitrate concentration considerably.

Dumping polluted groundwater into the waterways is causing significant environmental damage and putting people downstream at risk. Des Moines Water Works is asking that drainage districts seek and receive the same permit other entities do and that the water being handled by drainage districts be required to meet reasonable standards before being dumped into the water system we all rely upon to survive.

Des Moines Water Works has been running its costly de-nitrification facility since Dec. 4 to meet safe drinking standards. Operating this facility at this time of year is unprecedented. Should the nitrate levels continue to trend upwards in the years to come, Des Moines Water Works will be forced to replace this facility to meet the Des Moines area's water needs. Current estimates show such a facility will cost between $76 million and $183 million. The lawsuit we are contemplating involves much more than dollars. However, potential costs such as these and the ones that have been incurred and are being incurred cannot be minimized.

We stand ready to engage in any effort and discussion aimed at reducing pollutants in Iowa's water system. However, we would be shirking our responsibility if we did not take action to protect the interests of those we serve.

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This entry was first published in the print edition of the Des Moines Register. 
Graham Gillette can be reached at grahamgillette@gmail.com 

Open Meeting Loudmouth Put to the Test

I have long been an advocate for open meetings having harangued many government bodies for falling short of both the intent and letter of open meeting and records laws. Public entities shirk their duty when they close the meeting room doors.

My recent work as a member of the Board of Trustees of Des Moines Water Works (DMWW) has tested my resolve.

DMWW is in the process of selecting a new CEO. Because we wanted to look far and wide for a new and competent leader, DMWW hired a recruiting firm to conduct the search, screen applicants and guide us through the process. I am glad we did. The help this firm provided has been invaluable to our small board. Last month, the search consultant provided board members with a book containing exhaustive research on the semifinalists that weighs just slightly less than a concrete block.

When the time came to pare the semifinalists to a list of finalists, some of my board colleagues felt uncomfortable doing so in open session. What if something we said harmed the reputation of one of the semifinalists? Could a board member’s comment unintentionally haunt a person? I understood this concern and Iowa law does permit a board to close a meeting should a candidate request a closed session. Only one of the semifinalists had requested his information be kept confidential, which could be interpreted as a request for a closed discussion.

The recruiter began calling the other candidates to see if they wanted a closed session. As he did so, our board agreed to refer to candidates by the tab number under which their information was filed in our heavy books and not disclose anything specific about candidates’ backgrounds. We quickly agreed two of the candidates would be finalists without any discussion. There was no need to talk about them behind closed doors. As the recruiter continued to call the others, we took a short recess so we could discuss options for moving forward with attorneys.

I needed to call my lawyer. I was uncomfortable no one had discussed the process with the candidates prior to the meeting and they were now getting this fever pitched call asking if, in effect, the board had their permission to close the meeting. That seemed backwards. The law says a board can close a meeting if a candidate asks. The action is to be initiated by the candidate, not the other way around.

I imagine some of you just rolled your eyes. You think I am splitting hairs. Perhaps, but I was not surprised when we came back into session that all of the remaining candidates had agreed to a closed session. My guess is that 99.9% of people are going to say ‘yes’ when the guy who is their contact with a potential employer asks if it is OK for the employer to close a meeting.

If the CEO application had cited the Iowa Code – a meeting of a public body may be closed to evaluate the professional competency of an individual whose appointment, hiring, performance, or discharge is being considered when necessary to prevent needless and irreparable injury to that individual’s reputation and that individual requests a closed session – and then asked ‘should you be a semifinalist/finalist for this position, do you request a closed session,’ would all of the candidates have done so? We will never know. If I am ever a part of public body conducting a search again, I will insist we ask the question that way.

I am proud of the DMWW process thus far, even though we stumbled slightly with the semifinalist meeting. DMWW conducted wide open interviews with five outstanding finalists yesterday – the board interviews were open as were the panels conducted by members of the community and employees. Next week the board will meet again in hopes of making a selection. All of the finalists have signed forms requesting a closed meeting. I voted ‘no’ to close the last session. I will vote ‘yes’ next week. The requests were made in advance of the meeting. I understand why protecting a candidate’s reputation from harm is an important consideration.

Even though the mechanics of good government can be bothersome, I remain a strong believer the public’s business should remain in full view except in the most limited of circumstances. Fortunately, I serve with board members who agree and who are willing to tolerate my calling a timeout every now and again to make sure we are doing as we should.

It’s good when a loudmouth like me has his beliefs put to the test.

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Graham Gillette can be reached at grahamgillette@gmail.com 
This entry was first published as a Des Moines Register online essay.