Des Moines Water Works case casts long legal shadow on agriculture
If the Des Moines Water Works (DMWW) successfully sues drainage districts in three Iowa counties because of high levels of nitrates entering the Raccoon River, the agricultural stormwater runoff exemption shrinks under the Clean Water Act (CWA). A court ruling in favor of DMWW rips open the door to a host of lawsuits. Hyperbole aside, the gravity of the case couldn’t be heavier for agriculture because it foreshadows the upending of the CWA and the narrowing of the stormwater exemption.
The DMWW case contains a blur of moving parts but is pared down to three legal tests: the CWA, the Iowa CWA and a layering of common law claims. “The big issue here is whether the CWA’s agricultural stormwater runoff exemption is applicable to drain tiles,” says Gary Baise, Washington, D.C., attorney with Olsson Frank Weeda Terman Matz. “Whether or not nonpoint sources and agricultural runoff are exempted is what should be argued. The case must be articulated as to why the CWA was written regarding distinctions between agriculture and point sources like sewage plants. Otherwise agriculture loses.”
DMWW can’t go after drain tile or individual farms, so it’s taking a novel approach and holding counties liable. Making the counties legally responsible forces them to pass the cost to the farm level. If drainage districts are held liable, the implications would reverberate nationwide, with precedent requiring counties to obtain National Pollutant Discharge Elimination System (NPDES) permits, which would likely become more restrictive over time. In turn, the counties would seek funds to improve water quality and the bill would go to landowners.
“Interpreting original law related to stormwater runoff is where the case rests,” says Harwood Schaffer, research assistant professor at the University of Tennessee Agricultural Policy Analysis Center. “In the context of nitrate and phosphorus loss, which impose costs on downstream users of the water, either farmers get their act together or they’ll be forced to do so. The question in this case is who pays? The farmer or the downstream user and the Gulf of Mexico commercial fishing fleet? It’s in the self-interest of agriculture to prevent nutrient runoff and not just in the avoidance of federal mandates.”
Rulings from the DMWW case could be applied nationally, Schaffer notes. He says farmers paying little mind will be shocked when rules arrive. “Farmers have to give serious consideration to water and nutrient management in ways they never have before, just for their own economic survival. This is only the beginning of the pressure.”
Legal predictions range from an out of court settlement to decades of litigation, but Baise predicts the case won’t be settled and might be headed for the Supreme Court within three to four years. He believes any farmer, regardless of where they live, is making a tremendous mistake in ignoring the DMWW case. “Ultimately, environmentalists want to gain control over the application of nutrients through clean water permits. That’s how dangerous this case is and exactly where this train is headed,” he says.
Harrison Pittman, director of the National Agricultural Law Center, says the case could allow for regulation of state land use through the CWA. “This is about as high stakes as it gets because if DMWW swings and hits a home run, or even a base hit, it opens the gate for the issue to come up in states everywhere,” he says. “If they fail—and they could—it’s a totally different story.”
If DMWW succeeds, all farmers face the possibility of being impacted by the outcome. Initially, counties and drainage districts would be deemed liable, but ultimately, individual farms would likely be brought into the equation. DMWW stands to win a ruling that says drainage districts can be considered as point sources—a victory phenomenally wide in scope. That precedent would be used in other jurisdictions, Pittman notes.
“You can be virtually guaranteed new plaintiffs would pop up. Environmental groups and, as we have seen, certain law schools and others would be likely hot spots for initiating new lawsuits,” he explains.
Broadening the strategic battlefield opens the door to regulatory enforcement beyond government and toward private citizens. “The Clean Water Act already has a citizen suit provision, which basically allows a private party to step in as though they are EPA, even to the extent of calling out EPA to regulate. That’s part of the unique quality of this lawsuit. To the degree it’s successful, it opens a path to similar lawsuits in other jurisdictions,” Pittman says. “Make no mistake, this DMWW case could be an absolute game-changer for agriculture.”
How the litigation will play out is a looming question. However, one maxim of regulation always holds true: Once established, the regulatory grip of government only grows tighter over time. “This case portends the reach of EPA authority into agriculture, farm by farm,” Baise says. “Environmental groups may pull the case strings, but EPA is a willing puppeteer.”
Take Notice: The Case of Runaway Nutrients
Producers who pay little mind to the Des Moines Water Works case will be blindsided if mandated nutrient runoff regulations arrive.
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