Des Moines Water Works sues County for Agricultural Runoff

Written by on April 12, 2017. Posted in Environmental litigation and enforcement, Water

The Storm Lake Times, a small family-run Iowa newspaper, won a 2017 Pulitzer Price award for its coverage of issues associated with farm pollution from local agricultural companies and the failure of the County to control the agricultural runoff in the area.

The Storm Lake Times covered how the counties in the area allow too much nitrogen to be released through farm drainage systems into the river that provides a drinking water source for the community.

The Des Moines Water Works sued the counties, and the Storm Lake Times revealed that their defence of the lawsuit was funded by the Farm Bureau and other agricultural groups. The Des Moines Water Works sued three counties – Calhoun, Buena Vista and Sac counties (“Drainage Districts”) – for the high nitrite levels found in the Raccoon River, a primary water source for Des Moines. The claim, filed on March 17, 2015, seeks a declaratory judgment that the Drainage Districts have violated the Clean Water Act and Iowa Code by failing to comply with the effluent limitations prescribed by the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permit system and the state’s NPDES program.

The Des Moines Water Works system is a regional water utility providing drinking water to approximately ½ a million Iowans. The health risks associated with nitrate contamination include blue baby syndrome and potential endocrine disruption impacts and other health risks associated with increased cancer rates. The environmental risks result in the eutrophication and development of hypoxic conditions in public water, including the Gulf of Mexico.

The major source of nitrate pollution in the Raccoon River watershed is the subsurface drainage system infrastructure created, managed, maintained, owned and operated by the Drainage Districts and consist of pipes, ditches, and other conduits that are point sources that transport high concentrations of nitrate contained in groundwater.

On March 18, 2017 the federal court dismissed the action brought by Des Moines Water Works in its entirety without considering the merits of the case. The court was procedurally required to dismiss the case after finding that if Des Moines Water Works could prove an injury, the Drainage Districts would have no ability to remedy the harm.

The Iowa Supreme Court ruled that Iowa drainage ditches are immune from claims for damages or injunctive relief. On this issue, the court affirmed that such districts have a “limited, targeted role – to facilitate the drainage of farmland in order to make it more productive.”  If a claim cannot be remedied, meaning that the party against whom the claim is brought cannot provide a remedy, the federal court has no jurisdiction to hear the case.

The Des Moines Water Works will have thirty (30) days to decide whether or not the appeal the judge’s order.  The claim as reported by Storm Lake Times has certainly brought increased attention to Iowa’s water quality issue. The Water Quality Initiative implements the Iowa Nutrient Reduction Strategy. There is also pending legislation to establish a more comprehensive framework for funding water quality projects. In 2016 over $340 million in state and federal funding was directed towards Iowa water quality programs.

In Ontario, agricultural runoff and nutrient spreading is heavily regulated and can be governed by the Drainage Act, Ontario Water Resources Act and Nutrient Management Act.