The drainage districts in the Des Moines Water Works (DMWW) lawsuit have now filed their second motion for partial summary judgment. Last fall, they asked the judge to rule in their favor as a matter of law on DMWW’s state law tort claims, such as nuisance and negligence. Several questions of Iowa law raised by that motion are currently pending as certified questions before the Iowa Supreme Court.
On April 1 (one month after completing discovery), the districts filed a new motion seeking summary judgment on the two remaining claims. And these are the big ones. The districts are seeking judgment on Counts One and Two of the lawsuit. Count One asserts that the districts have been violating the Clean Water Act by discharging nitrates into Waters of the United States without a National Pollutant Discharge Elimination System (NPDES) permit. It asks the court to declare that the districts are in violation of the Clean Water Act, to order them to obtain NPDES permits, and to assess monetary penalties for each day of continuing violation. Count Two asserts similar claims under Iowa Code chapter 455B, Iowa’s counterpart to the Clean Water Act. That count additionally asks the court to direct the districts to “cease” all discharges of nitrates not authorized by an NPDES or state operating permit.
In its memorandum in support of the motion, the districts summarize the DMWW's claims as follows::
DMWW asks this Court to ignore drainage districts’ lack of ability to do anything DMWW requests, ignore congressional intent, overturn more than forty years of consistent interpretation by the agencies responsible for administering the relevant statutes that Congress never overturned, and impose permitting requirements for drainage districts.
Subject Matter Jurisdiction Lacking
The districts begin their argument by contending that the court lacks subject matter jurisdiction to hear the claims because no “case or controversy” exists if the persons being sued lack the power to redress the issue being raised. The districts argue, “Trustees who cannot control the outcome may not be sued seeking an outcome they cannot compel.” Specifically, the districts allege that the trustees of the drainage districts lack the authority to compel the changes requested by the lawsuit. Lacking that power, the districts argue, the trustees are not the parties who can provide the redress sought, and the court thus lacks subject matter jurisdiction.
Statute of Limitations Has Run
The districts also assert that the statute of limitations has run on DMWW’s claims because the Iowa Department of Natural Resources made “crystal clear” no later than January of 2009 its position that farm drain tiles were not “point sources” of pollution subject to NPDES permitting requirements. The districts thus argue that DMWW’s “gripe” is with IDNR (and not the districts) and that DMWW had, at most, no more than six years from January of 2009 to file a legal challenge to the IDNR position. Because the DMWW lawsuit was filed in March of 2015 (and it wasn't filed against IDNR, the party with the actual power to effect change), the districts argue the lawsuit is barred by the statute of limitations.
Congressional Intent is Clear
The districts then move to their substantive arguments. In support of their motion, the districts argue that for the forty-year history of the Clean Water Act, Congress, the EPA, and the Iowa DNR have all confirmed that the “agricultural drainage flows at issue in this case are nonpoint sources.” They then note that in 1987, Congress specifically exempted these discharges from the definition of a “point source” by adding the “agricultural stormwater discharges” exemption to the definition of “point source.” The districts also review legislative history to argue that Congress never intended to require permits for agricultural drainage, whether it includes surface or subsurface flows from croplands. The districts also cite two federal cases that support their arguments.[i]
"Groundwater" Argument Misses the Point
In addressing DMWW’s claim that the targeted discharges are “groundwater,” not stormwater, the districts allege that DMWW’s attempt to distinguish the two “misses the point.” The districts state, “EPA, the Iowa DNR, and other agencies responsible for administering the Clean Water Act have consistently implemented Congress’s intent that agricultural drainage flows are nonpoint source pollution beyond the scope of the NPDES program, notwithstanding that such flows could be considered groundwater under state law.” The agencies, the districts argue, have implemented clear Congressional intent to “exclude surface and subsurface agricultural runoff from NPDES permitting requirements.” The districts contend that IDNR again confirmed this finding with rulemaking issued in 2009.
Depositions of Bill Stowe
In its 45-page brief, the districts quote extensively from the deposition of Bill Stowe, the CEO of DMWW. They note that he stated it “’makes sense . . . from [the drainage districts'] vantage’ for drainage districts not to seek NPDES permits when the ‘regulator is telling them no, you don’t need them.’” They note that this concession is in direct contrast to the complaint’s assertion that the districts are required by law to obtain NPDES permits. The brief notes that Stowe also conceded that Iowa DNR would not have the personnel or the funds to implement the requested permitting requirements if indeed a court were to compel them: The brief goes on to state:
Finally, DMWW’s CEO concedes he doubts DNR has staff to police NPDES permits for the over 3,000 drainage districts in Iowa. Id. at 311:16-21 (App. p. 25). DMWW therefore must seek an order not only compelling Drainage Districts to seek NPDES permits they cannot fulfill, but also compelling Iowa’s DNR to issue them (even though it is not a party to this case), and compelling the Iowa Legislature to appropriate money for more staff to allow Iowa’s DNR to issue and enforce them.
DMWW will file their resistance to the motion in about three weeks. Their brief will no doubt seek to portray the evidence in a whole different way. We will keep you posted!
For additional filings and resources, visit our Des Moines Water Works Lawsuit Resources Page.
[i] Pac. Coast Fed’n of Fishermen’s Ass’ns v. Glaser, No. 11-cv-2980, 2013 WL 5230266, at *14 (E.D. Cal. Sept. 16, 2013) and Fishermen’s Against Destruction of Env’t, Inc. v. Closter Farms, Inc., 300 F.3d 1294, 1298 (11th Cir. 2002).
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