(Editor’s note: articles such as this are run in the Jefferson Policy Journal because the outcome of lawsuits such as this will have an impact on Virginia since the outcome will encourage or discourage similar actions.)
The Des Moines Water Works (DMWW) federal case is coming to a close. DMWW sued Sac, Calhoun, and Buena Vista Counties in Iowa, as trustees of numerous Iowa Drainage Districts. After the complaint was filed by DMWW, the Counties sought summary judgment in federal court regarding the Clean Water Act (CWA) issues. The U.S. District Court referred the common law issues to the Iowa Supreme Court for review and decision. The CWA claims are now fully briefed.
The Drainage Districts filed their reply brief on May 31, 2016. It is a homerun. Regarding jurisdiction issues, the Drainage Districts brief destroys DMWW’s claims. First, the districts describe how there is no jurisdiction for the Court to order a drainage district to resolve an issue where it has no power to resolve that issue. Second, the Drainage Districts point out DMWW sat on its hands for 44 years and did nothing regarding permits for tile drainage discharges. The killer argument the brief makes is “…everyone including Congress, the Environmental Protection Agency…the Iowa Department of Natural Resources…and every single state in the Union with drainage tile makes [it] clear NPDES permits are not required for drainage tile.”
Notwithstanding these facts, the bloviating director of DMWW claims he knows better than everyone else “…is a majority of one.” No, really. In an answer to a question, the DMWW director responds that DMWW is a majority of one and his rate payers are a majority of one. He claims he is correct and everyone else is wrong in interpreting the CWA.
The Drainage Districts and their law firm actually demonstrate to the court that DMWW’s arguments are in conflict with 44 years of consistent interpretation. The brief actually reviews the CWA’s legislative history and cites to EPA documents which declare EPA has never required NPDES permits for drainage tile. On page 18 of the Drainage Districts’ brief, a thorough discussion begins describing how Congress placed agricultural runoff under State control in 1972.
A real surprise
In a real surprise, the Drainage Districts’ law firm cites a December 5, 1975 Federal Register which describes Congress’ understanding that agricultural runoff is considered to be “…a problem of significant magnitude, [and] Congress believed that technological solutions were not available…” The Drainage Districts’ lawyers found in old Federal Register documents with more interesting language. “Agricultural and silviculture runoff as well as runoff from city streets, frequently flows into ditches or is collected into pipes before being discharged into streams. EPA contends that most of these sources are nonpoint in nature and should not be covered by the NPDES permit program.”
Again this quote comes from a Federal Register document.
If DMWW and its attorneys had done their homework, they would know that EPA has rejected all suggestions that agricultural runoff discharged through ditches, pipes or culverts be regulated as a point source.
More astonishing is the Drainage Districts and their law firm found legislative history from the CWA amendments from 1987. Sen. Robert Dole, R, KS, articulated the argument that runoff from agricultural areas present a serious problem, but the 1987 amendments encouraged the states to manage nonpoint sources and set timetables for meeting cleanup goals. The 1987 CWA created a new state program to address nonpoint sources of agriculture pollution. The brief describes the fact that Section 319 “…allows regulatory and other control programs to be run by the state.”
Others defending agriculture in the courts have assumed Section 319 is “merely “a demonstration and grant program meant to assist farmers. Senator Dole made clear that Section 319 programs “…will target critical areas, identify nonpoint sources and set timetables for program implementation.” The Congressional Record on January 6, 1987 describes that “Congress expressly left agricultural land in the nonpoint category regulated by state programs – now Section 319.” The Drainage Districts’ brief hammers DMWW in listing EPA documents and state documents from California, Wisconsin, North Dakota, Indiana, and Minnesota which all declare with EPA approval “Agricultural activities that cause [nonpoint source] pollution include …tile drainage…”
As you can see, DMWW is attempting to overturn decades of established regulations and case law. Now you see why the farmers should win.
(This article first ran in Farm Futures on June 13, 2016.)