By Eldon McAfee, attorney Brick Gentry Law Firm, Des Moines, Iowa
Iowa garnered the attention of the nation’s agricultural sector in 2015 when a lawsuit was filed in U.S. District Court by the water supply entity for city of Des Moines, Des Moines Waterworks, challenging drainage from field tile lines as discharges under the federal Clean Water Act that require a National Pollution Discharge Elimination System permit.
This suit was of interest to all of agriculture and the environmental community because no court had ruled as the DMWW asked the court to do in its lawsuit. On March 17, a U.S. District Court judge for the northern district of Iowa dismissed the DMWW citizen suit that was filed in March 2015 against 10 drainage districts in Sac, Calhoun and Buena Vista counties (Drainage Districts). The federal court cited the Jan. 27 Iowa Supreme Court ruling that found the Drainage Districts were immune from the DMWW’s claims for money damages and other legal claims. The federal court ruled that because of this immunity under state law, the Drainage Districts had no power to regulate farmer nitrate use within their districts and, thus, no power to “redress” the DMWW’s alleged injuries.
The defendant Drainage Districts are authorized by the Iowa Code to establish and maintain unified drainage systems to drain farmland. Many drainage districts were established in the early 1900s to construct and maintain adequate drainage outlets and levees in areas where adequate drainage could not be achieved by individual landowners. As is the case for the Drainage Districts, a county board of supervisors often serves as the board of trustees for that district. However, that does not mean that the counties themselves were defendants. A drainage district is authorized by Iowa law to assess fees to landowners within the district for construction and maintenance of joint drainage tile and ditches.
According to the Iowa Drainage District Association, the state of Iowa maintains over 3,000 drainage districts and it is estimated that more than nine million acres, or almost 26% of the state’s land mass, are drained. Although disputed by the DMWW in this case, other than joint drainage tile and ditches, there is no express legal authority by a drainage district over the use of a farmer’s land within the districts. A key procedural type issue that had to be addressed was whether the Iowa Code provides for drainage districts to be sued to be required to comply with the CWA. The DMWW also made Iowa constitutional claims that the nitrates in the water from the Drainage Districts amount to a Taking without compensation, and violate constitutional Due Process and Equal Protection. Because these are state law issues, the federal judge referred this and other state law questions to the Iowa Supreme Court.
Beyond the procedural type issues referred to the Iowa Supreme Court, the critical issue in this lawsuit was whether discharges from field tile lines from the Drainage Districts were discharges from “point sources” without an NPDES permit under the CWA and without permits under Iowa law. Under the CWA, point sources are “discernable, confined and discrete conveyances.” Up to this point, the Environmental Protection Agency and the Department of Natural Resources, and the courts, have considered outlets such as field tile lines to be non-point sources and not regulated under the CWA. The DMWW alleged that the Drainage Districts are different than a regular farm field and qualify as “point sources.” Also at issue in the case were two CWA point-source exemptions that arguably exempt the Drainage Districts from CWA NPDES requirements.
First, is the agriculture storm water discharge exemption. The DMWW alleged the drainage district tile lines do not qualify for this exemption because the tile drainage is artificially drained groundwater, not ag storm water runoff. Second, is the exemption “return flows from irrigated agriculture.” The DMWW alleged this is not irrigated agriculture but the counter to that is that that term in the CWA is broader than the DMWW’s interpretation and applies to natural precipitation. Rather than arguing over application of crop nutrients such as fertilizer or manure, DMWW took a different approach and alleged that the prevalent corn-soybean crop rotation and lack of perennial crops in the Districts, coupled with extensive subsurface tile drainage, results in excessive nitrates in groundwater that are discharged to surface waters. The DMWW also alleged, much to the surprise of many in agriculture, that surface water runoff has fewer nitrates than tile discharges and that “the conveyance of nitrate is almost entirely by groundwater transport.”
In its Jan. 27 ruling on the procedural type state law issues, the Iowa Supreme Court ruled:
• That the Iowa legislature had created drainage districts for a very limited purpose – to drain and therefore make productive land that was otherwise unproductive.
• The Drainage Districts have no authority under state law to regulate farmer nitrate use and that lack of control means the Districts cannot be held liable for the discharges – “liability is premised on control” the Court stated.
• Well-established Iowa court decisions favor placing liability on the party who can avoid the harm at the least cost. The Supreme Court ruled that the “least-cost avoider” for removing nitrates from drinking water may well be the DMWW, who is already required by law to provide safe drinking water to its customers.
• The DMWW is best situated to remove nitrates from drinking water stating that the DMWW “itself at times has lawfully deposited back into the Raccoon River the very nitrates it removed.”
In its March 17 ruling, the U.S. District Court cited the Iowa Supreme Court’s ruling that Iowa law does not grant the Drainage Districts control over the use of the land in the Districts and therefore the Districts cannot be held liable for the discharges. The U.S. District Court also emphasized that Iowa law does not require drainage districts to “filter out nitrates. Rather, chapter 468 simply requires drainage districts to maintain drainage systems to keep the water flowing to drain lands. ... No provision in chapter 468 authorizes drainage districts to mandate changes in farming practices to reduce fertilizer runoff or to assess farmers for the costs of removing nitrates from waters flowing through agricultural drainage systems.”
The U.S. District Court’s ruling also included two points of practical importance to all Iowa farmers, not just those in the Drainage Districts, and to policymakers.
• Although this case is specific to the defendant 10 drainage districts in these three Iowa counties, the outcome of this lawsuit would have impacted other drainage districts in Iowa and could have affected drainage systems and farmland statewide and well as nationwide. If the U.S. District Court had ruled that that the Drainage Districts are point sources and do not qualify for the “ag stormwater” and “return flows from irrigated agriculture” exemptions in the CWA, then NPDES permits could have been required for all drainage districts, a ruling that could then eventually have been extended, either by the EPA or state regulation or further court decisions, to drainage tile outlets in individual farm fields. This potential for legal and regulatory precedent beyond the 10 Drainage Districts drew the attention of all of agriculture.
The Court ruled that the DMWW may well have suffered an injury, but the Drainage Districts lack the legal ability to redress that injury. Following this ruling focused on the procedural type issues in the case, the point has been made that the court did not address the DMWW’s claim that the Drainage Districts are point sources under the CWA. The DMWW alleged that drainage districts have been overlooked as point sources but that they should qualify because they are “elaborately engineered government drainage systems”. It is correct the court did not reach this issue when it first ruled that the Drainage Districts had no authority over tile line discharges. However, it must also be noted that the DMWW specifically chose not to sue individual farmers as point sources under the CWA and instead sued the Drainage Districts. Because of this strategic approach by the DMWW in the lawsuit, and the lack of control by the Drainage Districts over tile line discharges, the U.S. District Court could not rule on the CWA point source issue.
• The Court also dismissed the DMWW’s claims that Iowa’s drainage district law violated the U.S. Constitution. In making that ruling, the Court addressed the DMWW’s criticism of the Iowa Nutrient Reduction Strategy. The DMWW argued that the Iowa Nutrient Reduction Strategy “seeks a 45% reduction of nitrate and other nutrient pollution.” The DMWW then argued that the Nutrient Reduction Strategy estimates that 8% of nitrate comes from regulated sources such as sewer systems and 92% comes from unregulated sources, namely agriculture. The DMWW concluded: “It strains rationality to believe that 8% of the problem can create 45% of the solution.” The U.S. District Court quoted these arguments by the DMWW in its ruling but noted that these are not federal Constitutional arguments. Instead, the Court stated, they are policy arguments that are best directed to the Iowa legislature.
On April 11, the DMWW board voted to not appeal the U.S. District Court’s ruling dismissing the case. As a result, the legal issues in court have been addressed and the case is concluded. But, as many have noted since the ruling came out, from a practical perspective, the issue of tile line discharges and water quality is certainly not concluded. Addressing water quality remains at the forefront for agriculture and the Iowa Nutrient Reduction Strategy and voluntary conservation programs and practices in other states take on increased importance and farmers must continue to adopt and implement proven conservation practices.
Portions of this article have been published by the Iowa Pork Producers Association, the Iowa Cattleman’s Association and the Iowa Poultry Association in their respective publications. Thank you to those organizations.