I wrote earlier this year that the lawyers for the Iowa counties and Drainage Districts have a powerful factual case in the Des Moines lawsuit. They have an even stronger set of legal arguments. The Des Moines Water Works (DMWW) is seeking to compel EPA and the Iowa Environmental Agency to change the 44 years of Clean Water Act interpretation of what is a nonpoint source under the Clean Water Act (CWA).
Related: Des Moines Water Works files lawsuit
The CWA has a clear demarcation in its sections between what is a point source and nonpoint source. For example, in Section 318 deals with aquaculture and there must be a permit to discharge a pollutant. Next is Section 319 (nonpoint source) and it requires no federal (NPDES) permit but clearly gives a state authority to issue a permit if it determines a permit is necessary to meet water quality standards.
Section 319 of the CWA requires each state to submit to EPA an initial report, and subsequent reports on an annual basis, which identify programs to control nonpoint source pollution generators. The section is a roadmap on how a state implements best management practices (BMPs) by category with a schedule of achievement and a requirement the Attorney General of the state certify there is adequate state regulatory authority to implement programs to control nonpoint source pollution.
The Iowa Drainage Districts do not focus on this aspect of the CWA in their brief, but make it abundantly clear that CWA permits are not required for agricultural stormwater discharged through agricultural drainage tiles.
It is also clear that Congress never had the intent to regulate agricultural drainage because it is nonpoint source pollution.
The Drainage Districts’ brief quotes EPA describing nonpoint source pollution as “Nonpoint source pollution generally results from land runoff, precipitation, atmospheric deposition, drainage seepage or hydrologic modification. Nonpoint source (NPS) pollution, unlike pollution from industrial and sewage treatment plants, comes from many diffuse sources. NPS pollution is caused by rainfall or snowmelt moving over and through the ground. As the [rainfall] runoff moves, it picks up and carries away natural and human-made pollutants, finally depositing them into lakes, rivers, wetlands,…and groundwaters.” This is powerful language and supports the fact that neither EPA nor Iowa’s Department of Natural Resources have never required CWA permits for subsurface tile lines or drainage districts.
The Drainage Districts’ brief cites several Midwestern states’ documents which address nonpoint source agricultural runoff being conveyed through tile drains and not being required to have a CWA permit. Indiana’s nonpoint source plan is cited as declaring “…that even though a tile drainage system delivers stream discharge through a series of pipes any pollutants carried by the discharge would still be considered nonpoint source.”
The Iowa counties and drainage districts assert Congress never intended drainage district tile lines to have a federal permit, and they write “…Congress’ intent [is] that drainage districts not be required to secure NPDES permits. Typically such interpretations stand unless clearly irrational, illogical or wholly unjustifiable.”
No legal arguments
EPA and states are not wrong after all these years. DMWW has no legal arguments. DMWW is simply trying to claim agricultural stormwater and groundwater are different.
EPA has not defined the term “agricultural stormwater,” but it has defined what are industrial and municipal stormwater discharges. EPA has been careful not to address the definition of agricultural stormwater discharges except for CAFOs.
We all know water quality problems occur as a result of agricultural stormwater discharges. Congress, too, recognized that fact and wrote Section 319, Nonpoint Source Management Programs, to deal with agriculture’s runoff. Congress has specifically included in the CWA an exemption for agricultural stormwater runoff. DMWW with this lawsuit cannot change that fact.
Court cases also support the Iowa drainage districts on this issue as well. The conclusion of the drainage district legal brief sums up this matter perfectly. “The text of the Clean Water Act, its legislative history, court decisions, and various decision documents from several agencies responsible for administering the Act all show agricultural drainage flows, whether collected and channeled through tile drains and ditches to a navigable water and whether they contain groundwater, are [agricultural] nonpoint sources of pollution that do not require [CWA] NPDES permits. Thus, DMWW’s Clean Water Act claim fails as a matter of law.”
The opinions of the author are not necessarily those of Farm Futures or Penton Agriculture.