Des Moines Board of Water Works Trustees Files Lawsuit
On March 16, 2015, the Des Moines Board of Water Works Trustees (DMWW) followed through on its January threat and filed a federal Clean Water Act (CWA) lawsuit against the supervisors and drainage districts of three Iowa counties. The lawsuit, which was filed in the United States District Court for the Northern District of Iowa, alleges that the supervisors, in their capacity as trustees for the drainage districts, are operating the drainage districts in an “unlawful and antisocial” manner that is contrary to the “public health and welfare.” The lawsuit, among its many demands, asks the federal court to order the drainage districts to cease "all discharges of nitrate that are not authorized by an NPDES or state operating permit."
The complaint, which is 52 pages long, begins with an overview of the “national and state nitrate problem.” It alleges that agricultural drainage is a significant contributor to hypoxia in the Gulf of Mexico and that “scientific research and technical studies show that high nitrate concentrations in the Raccoon River watershed are a direct result of nitrate discharged from agricultural drainage district facilities.”
DMWW alleges that the concentration of nitrate in the Raccoon River, which is a primary source for DMWW’s raw water supply, has steadily increased since the 1970s. It asserts that the nitrate load in the raw water supply in one week in 2013 was greater than the entire nitrate load in 2012. DMWW contends that it was forced to expend over $500,000 to treat its water in the summer of 2013 alone. It also alleges that it continuously operated its nitrate removal system from December of 2014 through March of 2015, which was the longest period of continuous winter operation in its history. The lawsuit states that the nitrate removal system costs DMWW up to $7,000 per day to operate. The suit takes aim at 13 separately-listed drainage districts in Sac, Buena Vista, and Calhoun Counties. It also states, however, that the harm to DMWW was jointly caused by the listed drainage districts and “similarly situated drainage districts,” suggesting that other districts may be pulled into this action as well. The complaint sets forth nine causes of action, each of which is summarized briefly:
Federal and State Water Quality Laws
The primary claim by DMWW is that discharges from drainage districts are “point sources” of nitrate pollution. As such, DMWW alleges that the drainage districts must comply with the federal CWA and the National Pollutant Discharge Elimination System (NPDES) permit program, which is administered by the Iowa Department of Natural Resources. The complaint asks the federal court to declare that the drainage districts have violated federal and state law and to enjoin them from all discharges of nitrate not authorized by an NPDES or state operating permit. DMWW seeks civil penalties for each continuing day of violation.
The complaint also asserts three separate nuisance claims: public, statutory, and private. The claims all assert that drainage districts—including all similarly situated districts—are public nuisances contributing to a single, indivisible harm to the public. The drainage districts, the suit contends, have created a substantial and unreasonable interference with DMWW’s property right to withdraw high quality water from the Raccoon River. DMWW asks the court to order the districts to take all actions necessary to abate the nitrate pollution and to award DMWW damages.
DMWW contends that the districts’ discharge of nitrate is a substantial physical invasion of DMWW’s use and enjoyment of its property. DMWW asks the court to declare that DMWW has created a trespass and to award DMWW damages.
DMWW alleges that the supervisors have been negligent in creating and maintaining the network of drainage facilities because harm to DMWW was a “reasonably foreseeable consequence” of the drainage districts’ “normal and intended operation.” Again, DMWW asks the court to order the districts to abate the nitrate pollution and pay damages to DMWW.
In addition to its tort claims, DMWW asserts several constitutional claims, one that the drainage districts, as “political subdivisions” of Iowa, have taken DMWW’s property without just compensation by invading it with nitrate pollution. The other is that DMWW would be deprived of due process and equal protection under the United States Constitution if the court were to enforce Iowa law declaring that drainage districts cannot be sued for money damages. DMWW thus seeks a declaration that the districts are subject to a suit at law for damages in tort and other relief.
The complaint concludes by asking the court to order the drainage districts to “take all steps reasonably necessary within a reasonable period of time to reduce the discharge of nitrate to the Raccoon River.”
DMWW seeks money damages, costs, attorney fees, and other relief “deemed just, equitable and proper.”
Is Drainage Tile a Point Source
The DMWW complaint is asking the court to do what no other court or state or federal agency has done: declare farm drainage tile to be a “point source” subject to CWA regulation. Only “point source” discharges are subject to NPDES permit requirements. The CWA exempts from the definition of “point source” agricultural storm water discharges and return flows from agricultural irrigation. State and federal agencies have long considered discharge from farm drainage tiles to fall under these exemptions. No agency has created a permitting system for drainage districts. No agency has sought to regulate drainage tiles as point sources.
DMWW seeks to get around the agricultural stormwater exemption by claiming that the drainage from the tile system comprises groundwater, not stormwater runoff. The only federal court to address a similar claim, however, disagreed. In 2013, the Federal District Court for the Eastern District of California ruled that farm drainage tiles were not point sources of pollution. The plaintiff, a fishermen’s association, sought to require the administrators of grasslands’ bypass project to obtain a permit to discharge pollutants into a river. The plaintiffs argued that although much of the land at issue was irrigated cropland, the “return flows from irrigated agriculture” exception did not apply to prevent the land’s drainage tiles from being point sources. Specifically, the plaintiff argued that the exception did not apply because the water tables were high without the irrigation and the tiles were not draining irrigation outflows, but “polluted groundwater.” The court dismissed the action, finding that Congress intended to “exempt drainage from farms practicing crop-production agriculture facilitated by irrigation, rather than focusing on what the components of a particular flow are on any given day.”
The same could be argued for the agricultural stormwater exception: Congress intended to exempt drainage from farms practicing crop-production agriculture from the permitting requirements of the CWA. There is an inseparable interconnection between stormwater and the groundwater into which it seeps. It is difficult to see how a court could possibly separate the two in analyzing whether the agricultural exemption applies to a particular system of farm drainage tile.
Are the Drainage Districts Amenable to Suit?
Another big issue raised by this case is the propriety of filing suit against the drainage districts. The Iowa Supreme Court has held that drainage districts are not subject to a lawsuit for money damages under any state of facts. DMWW acknowledges this law, but argues that enforcing it would violate DMWW’s constitutional rights.
The reason for the law, however, is the “special and limited powers and duties conferred by the Iowa Constitution.” The Iowa Supreme Court has stated, “A drainage district is merely an area of land, not an entity subject to a judgment for tort damages.” This is not statutorily-granted immunity to a municipality. Instead, it is recognition that the sole purpose and function of the drainage district is to facilitate the construction and maintenance of a unified drainage tile system. The trustees have no authority to act outside of their narrow responsibilities of creating and maintaining what is in most places a 100-year-old system. Therefore, the courts have allowed lawsuits against these districts only where the claims implicate a specific statutorily granted power or duty granted to the district. In other words, a court can compel a drainage district to fix damaged drainage tile. It is difficult to see, however, how a court could compel the drainage district to cease “all discharges of nitrate that are not authorized by an NPDES or state operating permit.” Drainage district trustees attempting to take such actions by regulating farming practices or dictating land use would be acting outside of their statutory authority.
DMWW appears to have filed this lawsuit because it believes that the Environmental Protection Agency and the Iowa Department of Natural Resources have not done enough to regulate farm drainage tile. DMWW has been very vocal in stating that the voluntary Iowa Nutrient Reduction Strategy will not be effective. Three county boards of supervisors are the first direct targets of this advocacy. What DMWW seeks, however, is to change agricultural practices nationwide. It seeks a declaration that farm drainage tile is a public nuisance in its “normal and intended operation.” It seeks to compel federal and state agencies to rewrite their regulations and change their enforcement practices. This is a case of national significance. Even if the court dismisses the claims, the case will likely drag on for months, generating unfortunate animosity and costing thousands of dollars that could be spent implementing clean water solutions. The counties will likely file their answer in April. We’ll keep you updated.
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