Des Moines Water Works claims in a recent court filing opposing the Iowa counties and drainage districts that "…no effective measures to address nitrate pollution at its primary source have been taken for many reasons, including an erroneous, unreasoning, unsustainable, and ultimately shortsighted assumption that agricultural drainage infrastructure is, and must be, totally exempt from legal responsibility for its water pollution."
The 46-page brief from the DMWW was filed on Oct. 19, 2015, to oppose three counties and their drainage districts' Motion for Partial Summary Judgment. They filed a nine-page motion on Sept. 24, 2015, asking a court to throw DMWW's case out of court. DMWW claims the drainage districts' legal position "cannot withstand scrutiny."
It claims it obtains its raw water supply from the Raccoon and Des Moines Rivers, and further claims EPA, under the Safe Drinking Water Act, requires the finished water to meet a nitrate standard of 10 parts per million. All true, but DMWW would have you believe the only pollutant it is taking out of its intake water is nitrate. It must also remove total suspended solids or sediment; biodegradable organics; pathogens; refractory pollutants such as pesticides; heavy metals from commercial and industrial activities; and dissolved inorganics such as sodium, calcium and sulfates.
Drainage districts and counties say they are not proper parties to be named in DMWW's lawsuit. They allege they are not subject to tort claims and may be sued only for mandamus which means they can be forced to perform their statutory duties. In essence, the drainage districts claim they are not proper defendants for DMWW's common law claims and furthermore may not be sued for damages.
DMWW has sued the counties and drainage districts for private, public and statutory nuisance, trespass, negligence, taking property without just compensation in violation of the U.S. and Iowa constitutions, due process and equal protection violations, and of course, violations of the Clean Water Act and an Iowa Code chapter dealing with discharges of pollutants into water.
The massive brief filed by DMWW states obviously that the immunity claimed the drainage districts "…cannot be sustained in view of the harmful public health impacts resulting from nitrate pollution of the Raccoon River by Drainage Districts."
DMWW claims that Iowa drainage law, which has been in place since the 19th century, needs to be changed because the law protecting the drainage districts is a "…artifact of a different scientific, economic, legislative, and judicial era." (These folks apparently have not read Clean Water Act Sections 208, 319, and 502 which provide exemptions and programs for runoff which comes from agricultural operations.)
DMWW believes it is time to reexamine presumptions in Iowa law which declare the drainage districts are "…a public benefit and conducive to public health." DMWW says "It is time to reexamine that presumption as to water quality impacts…"
DMWW spends 30 pages arguing that the drainage districts cannot have unqualified immunity from lawsuits. It says the facts of this case effectively rebut the legislative presumption that drainage districts promote public health. It believes such a presumption undermines the basis for implied immunity that the defendants effectively argue.
Both the Iowa and U.S. Constitutions are used by DMWW to claim unqualified immunity of the drainage districts is unconstitutional because such immunity denies DMWW its right of equal protection under both constitutions.
The protection provided to the counties and drainage districts is irrational, according to DMWW, because if the agricultural entities have immunity, it is because "(1) [there is] a false presumption of promotion of public health; (2) a false understanding of the authority of drainage districts; (3) a failure to consider the harmful environmental consequences of unregulated drainage; (4) an allowance, indeed a promotion, of the export of negative environmental impacts downstream; (5) the treatment of other polluters, including other municipal and private entities unfavorably while protecting the largest polluters from responsibility; (6) a protection of narrow interests at the cost of perpetuating great public injury."
DMWW might want to consider the last statement as Congress and the states realize there are other values to be considered in the public interest and make its arguments to legislative bodies, not a court!
The opinions of Gary Baise are not necessarily those of Farm Futures or the Penton Farm Progress Group.