by Gary Baise
Published on: March 24, 2015
The Board of Water Works Trustees of the City of Des Moines, Iowa, filed a lawsuit in the U.S. District Court for the Northern District of Iowa last week, against three counties and several drainage districts which drain farm land.
Des Moines is attacking the very heart of the Clean Water Act, which protects agriculture. The complaint is composed of 52 pages, 290 separate paragraphs and 10 separate counts. Let’s examine the complaint.
Des Moines seeks to have Drainage Districts charged with violating the federal CWA and enjoin the Districts from ongoing violations of the CWA and assess penalties against the Drainage Districts “…for each continuing day of violation.” This could be up to $37,500 per day.
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Nine other counts are in the complaint. Count ll charges the Drainage Districts have violated Chapter 455 B, an Iowa Statute enacted to protect the quality of the waters. Under this Count, Des Moines claims the Drainage Districts “…are point sources of nitrate pollution…not exempt from regulation and required to have a permit under Iowa state law and regulation.”
This is the only count where Des Moines even identifies the exemption available to agriculture, which is the “agricultural stormwater exemption“. Des Moines claims under this count, that every discharge of a pollutant from any point source must have a CWA NPDES permit. Never once in this section or in any other count does Des Moines reflect any knowledge of the Clean Water Act which sets forth Sections 208 and 319 which deal with nonpoint sources which covers the nonpoint sources of agricultural runoff.
In Count lll the Drainage Districts are charged with creating a public nuisance. Generally a public nuisance is an unreasonable interference with a right common to the general public. A public nuisance generally does not arise merely because a large number of people are affected; rather it arises when a public right has been affected. Apparently the Des Moines board does not recognize that the United States Congress has made it clear how agricultural stormwater runoff is to be controlled under the nonpoint source sections of the CWA, as have numerous court cases.
Count IV of the complaint charges the Drainage Districts with statutory nuisance. Des Moines claims the nitrates flowing from the Drainage Districts makes the Raccoon River corrupt, unwholesome and impure in violation of Iowa Code Chapter 657.
Private nuisance?
Count V charges the Drainage Districts with creating a private nuisance. Private nuisance generally is an act that interferes with an individual’s interest in the private use and enjoyment of his or her land. Broadly, a private nuisance includes about everything that disturbs their reasonable use of a person’s property, endangers life and health and/or is offensive. Des Moines claims the Drainage Districts keep the Des Moines Water Works from withdrawing high quality water from the Raccoon River and it must therefore implement burdensome treatment processes to remove the nitrate.
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Count Vl is Trespass and charges the Drainage Districts with a substantial physical invasion of nitrate into the Des Moines Water Works. Generally trespass is an unlawful act committed to the person’s property or rights of another especially a wrongful entry onto real property.
Count Vll involves a charge of negligence by Des Moines by the Drainage Districts. Negligence generally occurs when a person has acted negligently if a person has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. Des Moines claims the Drainage Districts have a duty under Iowa law not to discharge nitrate pollution into the Raccoon River watershed that represents a threat to public health.
Des Moines gets creative in Count Vlll where it claims the Drainage Districts discharge from tile lines and its watershed “…is a permanent, physical invasion of and an impairment to Des Moines Water Works’ real estate and its right to withdraw water from the Raccoon River…” This is claimed to be a taking of property without just compensation.
The next Count, lX, claims the Drainage Districts are violating Des Moines’ substantive right to just compensation for government takings.
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The last Count X is a request for injunctive relief where Des Moines asks that the Court “…frame an injunction that permits sufficient flexibility for the Drainage Districts to comply with the injunction without undertaking an unreasonable burden. The injunction would require the Drainage Districts take all reasonable steps to lower the nitrate levels in the Raccoon River to 10 milligrams per liter or less.
This appears to be an effort by Des Moines to rewrite the Clean Water Act and rid it of the agricultural stormwater runoff exemption. Agriculture cannot allow this to happen!
The opinions of Gary Baise are not necessarily those of Farm Futures or the Penton Farm Progress Group.
