Des Moines Water Works Lawsuit Asks: Who Should Pay for Nutrient Pollution?

On March 16, 2015, Des Moines Water Works (“DMWW”) sued three drainage districts located in Sac County, Iowa (“the Districts”) seeking relief under the Clean Water Act (“CWA”), state environmental laws, and state common law, for discharging large amounts of nitrogen through drainage ditches into the Raccoon River. The Raccoon River is a key drinking water source utilized by DMWW to provide clean, affordable drinking water to 500,000 Iowans. As it currently stands, the Districts, through drainage tiles, are releasing agricultural runoff containing nitrogen pollution into the Raccoon River without a federal permit under the CWA. DMWW contends that a permit is required as the drainage tiles should be considered a point source. Conversely, the Districts maintain that drainage runoff is exempt from permitting under the Clean Water Act and its many agricultural exemptions.

The district court issued a partial stay in January, pending certification of questions of Iowa state law to the Iowa Supreme Court. Specifically, the district court has asked the Iowa Supreme Court to rule on whether Iowa law allows DMWW to pursue common law tort and constitutional claims against the Districts, and whether sovereign immunity bars all claims for equitable relief and damages, including those brought under the CWA, against the Districts.

Simultaneously, the Districts filed for summary judgment regarding the violations of the Clean Water Act and Iowa Code Chapter 455B dealing with discharges of pollutants into waters of the U.S. The Districts believe that the respective statutory language not only prohibits them from suggesting infield practices to farmers, as the complaint requests, but also exempts their drainage systems from permitting requirements.

While the level of nitrate pollution in the Raccoon River presents a real issue to those who utilize this water source for clean drinking water, the real issue this case presents is who should pay to clean it? As it currently stands, DMWW spends millions to provide Iowans with safe, affordable drinking water. But as agricultural runoff continues to pollute the water source with ever-increasing levels of nitrate, the utility simply cannot keep up with its mandate.  In 2015, DMWW ran denitrification equipment a record-setting 177 days last year, at a cost of $1.5 million.  According to a recent article, denitrification has again been switched on as of April 28, 2016.

In order to accommodate these excess levels of nitrogen in the Raccoon River and the resulting increased costs, DMWW is asking that the Districts shoulder some of the financial burden if they are unable to reduce their nitrate discharges. While DMWW is charged with cleaning the water before providing it to citizens, it should not be expected to bear the expense alone. This case and other recent events in the drinking water sector also serve as an important reminder that DMWW’s ratepayers—who expect clean drinking water—will ultimately pay, both financially and health-wise, for the costly excess nitrate removal if the Districts are not held accountable.

This case also has interesting implications for NACWA members, as the case represents a unique theory of liability for agricultural dischargers under the CWA.  NACWA will continue to follow the case and report on further developments.

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