Do the Des Moines Water Works Claims Hold Water?
On January 8, 2015, the Des Moines Board of Water Works Trustees (DMWW) voted unanimously to send a notice of intent to file a Clean Water Act citizen lawsuit against the county supervisors of Sac, Buena Vista, and Calhoun Counties in Iowa. The notice alleges that the supervisors, in their role as trustees for 10 Iowa drainage districts, are violating the Clean Water Act (CWA) by discharging pollutants into the Raccoon River through various point sources without proper permits. The notice alleges that if the drainage districts do not cease discharging pollutants without permits or act within 60 days to correct the violations, DMWW will file their federal lawsuit. The notice also threatens state law claims of nuisance, trespass, and negligence.
DMWW contends that it is without other recourse to avert high nitrate levels in its water, which flows from the Raccoon and Des Moines Rivers and supplies approximately 500,000 consumers. DMWW alleges spending thousands of dollars for a denitrification process required during certain days to ensure safe drinking water. DMWW states that it must pay more than $7,000 for each day the process is operated. Nonetheless, DMWW asserts that the lawsuit is not about the money, but about meeting a “public safety need.”
Is There a Point Source?
The threatened action is truly unprecedented. Drainage districts are unique creatures of Iowa law, which grants county supervisors the authority to create drainage districts for the purpose of straightening, widening, deepening, or changing any natural watercourse whenever the same will be of “public utility or conducive to the public health, convenience or welfare.” [i] The law specifically states that “the drainage of surface waters from agricultural lands and all other lands or the protection of such lands from overflow shall be presumed to be a public benefit and conducive to the public health, convenience and welfare.”[ii] In other words, drainage districts exist to retain the productivity of farmland by ensuring that surface waters (which generally comprise rainwater) are not allowed to flood the land and take it out of production.
This premise, however, must be challenged by DMWW for its suit to survive initial scrutiny. Under the CWA, a point source does not include agricultural stormwater discharges and return flows from irrigated agriculture.[iii] Congress specifically excluded agricultural stormwater discharges from CWA permitting requirements. Instead, this type of discharge is considered nonpoint source discharge, which is “widely understood to be the type of pollution that arises from many dispersed activities over large areas, and is not traceable to any single discrete source.” Because it arises in such a diffuse way, nonpoint source discharge is very difficult to regulate through individual permits. Thus, to pursue its CWA litigation, DMWW must prevail in its novel argument that the drainage districts manage point source discharges, rather than nonpoint source discharges. To make this argument, DMWW contends that the discharge at issue is not agricultural stormwater, but artificially drained groundwater. Thus, DMWW’s notice contends that the discharge is a point source subject to CWA permitting requirements.
Relevant Federal Case
The only federal case to address a similar claim suggests that DMWW’s claims will likely falter. In 2013, the Federal District Court for the Eastern District of California ruled that farm drain tiles were not point sources of pollution.[iv] The plaintiff, a fishermen’s association, sought to require the administrators of a 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 that portion of 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 applied to a particular system of farm drainage tile.
If a complaint is filed, an Iowa federal court will most likely have the opportunity to decide this question. Even if the suit is ultimately dismissed at an early stage, it is probable that DMWW and the counties at issue will invest thousands to convince the court of the legitimacy of their differing positions.
Can DMWW Sue the County Supervisors?
That is, if the suit gets that far. Another issue raised by this case is the propriety of filing suit against the county supervisors acting on behalf of the drainage districts. The Iowa Supreme Court has held that drainage districts are not subject to a money judgment in tort under any state of facts.[v] The reason for this is the “special and limited powers and duties conferred by the Iowa Constitution” and the fact that the “statutes do not include tort liability for money damages.”[vi] “A drainage district is merely an area of land, not an entity subject to a judgment for tort damages.” The Iowa court has also ruled that neither the county nor the board of supervisors can be vicariously liable for a money judgment against a drainage district. This law clearly undermines at least some of the claims alleged by DMWW. Although the notice threatens that DMWW will seek “damages,” the extent of these claims will not be known until a complaint is actually filed. Iowa courts have allowed claims against drainage districts to compel the proper maintenance of a drainage district's drainage system.[vii] These cases, however, have noted the limited nature of a drainage district’s existence. These suits have been allowed against districts only where the claims implicate a specific statutorily granted power or duty granted to the district.
It is impossible to see what relief the county supervisors could provide to DMWW. The county has no authority over the use of the land at issue. The drainage districts exist solely to assess landowners so that a unified drainage system can be established. DMWW alleges that the nitrates flowing through these tiles stem from the farming practices of the landowners or tenants. There is no link between these individual farming practices and the drainage districts. Establishing the legitimacy of a CWA suit against the county supervisors (on behalf of their drainage districts) will no doubt be another early issue litigated by the parties if DMWW proceeds with its action.
Where Would the Blame End?
If the litigation were to cross the above hurdles, where would the blame end? Would these defendants be forced to implead all other landowners within the watersheds feeding the DMWW water supply? Would DMWW be sued by downstream plaintiffs claiming DMWW must do more to avoid sending the nitrates it removes from its drinking water back down the river? It is difficult to see how a court could sort out the contributing cause issues implicated by DMWW's proposed lawsuit. It is also difficult to see how this lawsuit would be an appropriate forum to remedy Iowa's clean water issues.
Shortly after the DMWW notice was issued, United States Secretary of Agriculture Tom Vilsack announced that the State of Iowa would receive $3.5 million as part of the Regional Conservation Partnership Program designed to, among other things, “cut down on fertilizer runoff” in an attempt to “improve water quality throughout the country.”
Since 2013, Iowa leaders and landowners have sought to improve the quality of Iowa water through the Iowa Nutrient Reduction Strategy, a voluntary program established to assess and reduce the delivery of nutrients into Iowa waterways (and ultimately the Gulf of Mexico). The program specifically includes “nonpoint sources, including farm fields.”
We will be watching to see what transpires during the next 60 days, and will bring you updates if DMWW ultimately files its complaint.
[i] Iowa Code § 468.1.
[ii] Iowa Code § 468.2(1).
[iii] 33 U.S.C. § 1362(14).
[iv] Pacific Coast Federation of Fishermen’s Associations, et al. v. Glaser, et al., No. CIV S-2:11-2980-KJM-CKD, 2013 U.S. Dist. LEXIS 132240 (E.D. Cal. Sept. 16, 2013).
[v] Fisher v. Dallas County, 369 N.W.2d 426 (Iowa 1985).
[vii] See, e.g., Wise v. Board of Supervisors, 48 N.W.2d 247 (Iowa 1951).
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