Iowans are denied a fundamental right to clean water

We are on the cusp of a civil rights movement — a movement to protect citizens’ fundamental right to access clean water.

In the mid-1840s, our ancestors marveled at the “well-watered” rivers and creeks and the readily-available water supply.

But for the confluence of the abundant and clean waters of the Raccoon and Des Rivers, the city of Des Moines and nearby communities would likely never have amounted to anything. Instead, that resource allowed for the founding of a capital city and a robust economy.

Centuries ago, in English and early-American common law, natural rights were those considered universal and inalienable — they could not be taken away or surrendered.

Today, our Constitution and our laws speak of fundamental rights. Fundamental rights are the legal embodiment of natural rights. They are the rights that our governments recognize and protect within the legal system. They are the rights that assure that citizens are treated with dignity and respect.

Having access to clean water is such a natural right, a fundamental right that must be protected. Consistent with these rights our Iowa Code describes water occurring in a basin or watercourse, or other bodies of water, as “public water and public wealth of the people” and, as such, “are subject to the control by the state.” Iowa Code section 455B.262(3).

Governments — such as the Polk County Board of Supervisors — exist to protect natural rights, fundamental rights and statutory rights of the people.

The Central Iowa Source Water Research Assessment (CISWRA) study was commissioned in 2023 by the Polk County Board of Supervisors, paid-for with federal taxpayer funds.

The CISWRA panel includes some of Iowa’s and the nation’s foremost experts on water quality issues. After two years of study, they have concluded, in “Currents of Change,” that farm pollution threatens the ability of Iowans to drink clean water and to interact safely with rivers, streams and lakes in the watersheds of the Des Moines and Raccoon Rivers.

In Iowa, practices of the “industrial-agricultural-complex” directly impinge on Iowans’ fundamental right to access clean water.

Two executive agencies of Iowa state government — the Iowa Department of Natural Resources (DNR) and the Iowa Department of Agriculture and Land Stewardship (IDALS) — are responsible for monitoring and regulating Iowa farms and protecting Iowa’s water.

Although satellite photos suggest that there are thousands of Concentrated Animal Feeding Operations (CAFOs) in existence, these two agencies report only fuzzy statistics in the numbers of farms and animal feeding operations they should be regulating.

The term “regulatory capture” describes how a regulatory agency, which has been created to protect the public interest, instead advances the commercial and political concerns of the special interest groups that the agency has been tasked with regulating.

It is difficult to imagine more glaring examples of captured regulatory agencies in Iowa than DNR and IDALS. The captures have resulted in threats to public health and safety and environmental degradation: the very characteristics of the waters flowing through Polk County that the CISWRA report describes.

The present untenable situation, imposed on Iowans by a dominant industrial-agricultural power structure, is not a surprise. It is the predictable result of an unbalanced system that, on the one hand, applies very few anti-degradation mandates on farm operations to reduce the flows of nitrate pollution in our water while, on the other hand, imposes millions of dollars of mitigation costs on cities, along with mandatory use-limits caused by pollution-caused clean-water shortages.

With the CISWRA report, cracks are finally beginning to appear in that power structure.

Once one of the healthiest states, Iowa is now is saddled with the second-highest cancer rate in the nation. And Iowa is the only state where that rate is increasing. That seems to correlate with the rise of industrial-agricultural practices. Those practices include the excessive production of corn and soybeans; the overuse of manufactured nutrients; and the slathering on the land of livestock manure in amounts that are often far in excess of what can be utilized by those crops.

Having framed right to access clean water for personal, business and recreational uses as fundamental, Iowans want and deserve a moral commitment from their elected officials that this right will be protected and will not be traded away for political favors from powerful pressure groups.

This demand for moral clarity can no longer be answered by calls for “patience.” Nor can it be answered by calls for ever-expanding and expensive water treatment facilities to mitigate the poisons that are injected into water sources by agricultural operations upstream.

Throughout our state, in the past 30 years, there has been an undeclared war waged upon citizens’ fundamental right to access clean water. The effects of this war have been made more visible recently in Polk County by orders that citizens must diminish their uses of clean waters made scarce by the rural contamination of otherwise-plentiful supplies. This pollution-caused scarcity has revealed the yawning gulf between words and deeds of too many elected officials who voice general concerns about Iowa’s water quality but do nothing effectively to improve the dire situation.

The heart of the matter is that elected officials in Polk County must ask themselves: am I doing the right thing for the moral and physical health of our citizens?

Central Iowa’s water quality crisis is a national, not just a Polk County, news story. In responding favorably and adequately to the recommendations of the experts it retained to perform a thorough study of the area’s water pollution crisis, Polk County can be a leader that Iowa needs. Supervisors have the opportunity to remake Polk County before the eyes of Iowa and the rest of the nation.

If it fails to do so, if the sparks of citizen support for effective action are, instead, smothered by the false narratives in slick commercials plastered across airwaves by industrial-agriculture apologists, what will come is a radical new militancy of those who seek the recognition and protection of the fundamental right to access clean water — in our homes, businesses; and in the streams, rivers and lakes where, historically, Iowans once upon a enjoyed decent outdoor water-based recreational opportunities.

Citizens’ militancy to secure their right to access clean water, if required, will be waged in the highest tradition of Iowa freedom and thereby securing government’s power to improve the lives of our citizens.

James Larew was general counsel for Gov. Chet Culver and is an attorney from Iowa City.