A Midwestern state is in the middle of a federal Clean Water Act lawsuit between its farmers and urban communities. The Des Moines Water Works filed lawsuit in March against the supervisors and drainage districts in three rural counties. We look into the legal aspect of the historical lawsuit and what impact it could have on farmers nationwide.
Iowa is in the middle of a clean water battle between rural versus urban, sparking a debate whether farm drainage tiles are a pollutant. It’s a type of lawsuit never touched before.
“No court has ever gone there. Congress has never gone there. The EPA has never gone there,” said Roger McEowen, an agricultural law professor at Iowa State University.
Des Moines Water Works filed a federal Clean Water Act lawsuit in March, against the supervisors and drainage districts of Buena Vista, Calhoun and Sac counties. They allege excess nitrates from farm drainage tiles and drainage districts are polluting the Des Moines and Raccoon rivers.
“We’re seeing very high levels of what we view to be a public health risk in both the Des Moines and Raccoon rivers,” said Des Moines Water Works CEO and General Manager Bill Stowe.
The Des Moines Water Works wants farmers to have state and federal permits to use drainage systems for fields, calling drainage tiles point-source pollutants. They are suing over several claims. Some of those include nuisance, trespassing and negligence.
“Like any state that we’re familiar with, if you have a business and run a pipe from your business to the waters of the state or the waters of the United States, it’s regulated. If you have a storm sewer system in a city, if you have a metal plating in a suburb, it’s regulated. Agriculture is very different,” said Stowe.
“In fact in Iowa, every acre has 10,000 pounds of available nitrogen, whether you put corn, beans or a golf course on it. It’s going to produce nitrates,” said Iowa Corn President Jerry Mohr.
McEowen said that’s why this case has never been touched, because he believes it’s hard to determine where the nitrates originate. “How a court would discern between agriculture and non-agriculture, even with specific agriculture exemptions; I’m not sure how a court would be able to do that,” he said.
In Iowa, they may soon find out; the Des Moines Water Works is suing 10 drainage districts within those three counties. There are more than 3,000 drainage districts total in Iowa. Some have been in existence for more than 100 years. “Have we found every one? Of course not. But simply because we haven’t brought 30,000 defendants into this action, does not mean the 10 drainage districts aren’t responsible,” said Stowe.
Watch the AgDay story on the Des Moines Water Works lawsuit here:
McEowen said drainage districts don’t have the authority to regulate land uses.
“Drainage districts in Iowa can’t be sued for a money judgment, and the Iowa Supreme Court has said that on many occasions. In fact, the court has said the drainage district is simply an area of land. They don’t own anything. Since a drainage district is simply area of land, this is one of the things we want to look for early on to see whether the court can toss the case because they failed to state a claim,” said McEowen.
Stowe said ultimately it’s a business decision to do what he can in an effort to clean up a prime source of drinking water.
“We feel it’s threatened, and we feel as if we can and have identified some of the polluters upstream,” said Stowe.
Mohr said farmers are just as concerned about clean water too, but permits are not the way to handle the situation.
“All the sudden if regulations come that offer no real mitigation on how you’re going to handle it, just that you’re going to be assessed for what goes on in the soil, that’s not equitable to Iowa farmers,” Mohr said.
While there’s likely to be a long process, McEowen also said that he believes there are too many hurdles in the suit. “I think there are so many flaws with this, that it will either get dismissed up front or motioned out,” he said.
But if it’s successful, McEowen worries the court's ruling could have a domino effect. “If one federal court, which is ultimately upheld perhaps all the way to the U.S. Supreme Court, says farm drainage tiles requires a federal permit, then the whole regulatory structure changes," he said. "That’s not just in Iowa, but it changes nationwide."