by Gary Baise
Drainage districts say Des Moines Water Works has no facts or law supporting its case.
Published on: April 19, 2016
On April Fool’s Day Iowa drainage districts and counties filed in U.S. District Court a Motion and Memorandum of Law which shows the foolish nature of the Des Moines Water Works (DMWW) lawsuit against the drainage districts and farmers. The 44-page Memorandum of Law eviscerates DMWW arguments.
Related: Des Moines Water Work files lawsuit
The drainage districts and farmers conclude, “The text to the Clean Water Act, its legislative history, court decisions,…all show agricultural drainage flows, whether collected or channeled through the tile drains and ditches to a navigable water and whether they contain groundwater, are nonpoint sources of pollution that do not require [CWA] NPDES permits.”
DMWW’s case is so weak the drainage district and counties believe that a “…serious question exists whether DMWW has standing to bring a citizen suit…” The drainage districts claim the evidence shows DMWW “…never had to run its nitrate treatment equipment because of anything any drainage district did and it has not offered evidence that anything even detectable reaches Des Moines from any drainage district.”
This evidence is shocking in light of the adverse publicity aimed toward the agriculture community.
Depositions taken of DMWW CEO and staff show that the case is not about Des Moines’ residents drinking unsafe water. The case appears to be about who pays for the cost of treatment. EPA, under the Safe Drinking Water Act, requires that nitrates in drinking water not exceed 10 ppm per liter (This number is questionable according to the University of Nebraska and others.)
DMWW’s CEO William Stowe cannot identify “any day when more than .1 milligrams per liter of nitrate in the water that made it to Des Moines Water Works was attributable to all of the drainage districts, Des Moines Water Works sued combined[.]”
Apparently, “…DMWW cannot identify even once when all Defendants combined contributed even 1/100th of the level necessary for DMWW to treat for nitrate.” The districts also state in their filing with the court that there is not a single day that DMWW can point to where it had to treat water for nitrate coming from the drainage districts and farmers.
Deposition testimony also demonstrated that nitrate levels were higher in the Raccoon River above one county than below its discharge point. The deposition testimony also showed that in recent years there has been a declining trend of nitrate in the waters DMWW complains about.
One expert report asserts “…there is no evidence nitrate from any of these Drainage Districts could reach the surface water intake at the Des Moines Water Works at a concentration above the detection limit used by approved standard USEPA analytical methods.”
The evidence set forth by the counties shows the unprecedented nature of Des Moines’ claims. Iowa and USEPA have for over 40 years not required NPDES permits for farmers’ drainage tiles. The environmental agencies have made it perfectly clear these permits are not required and yet DMWW charges that the expert agencies in charge of nonpoint runoff from farmers’ fields have been wrong for over 40 years and Congress has sat on its hands doing nothing. Des Moines, according to the Memorandum filed in Court, cannot identify any other state that has ever required an NPDES permit for a drainage tile.
Notwithstanding the facts, DMWW’s CEO Stowe “…admits the claims in this lawsuit are at odds with not only expert regulatory agencies’ interpretation of the Clean water Act but arguably those of his prior self.” Apparently Stowe in an earlier Iowa proceeding had admitted drainage districts were not required to obtain NPDES permits.
The drainage districts and counties make a powerful case that DMWW and its CEO have no facts or law supporting their position, and this is nothing more than a feeble attempt to change the longstanding legal framework of the Clean Water Act.
Related: Judge rules in Des Moines Water Works case
Under the Federal Rules of Civil Procedure, a lawyer has the obligation to present information that he certifies to the best of his knowledge and information formed after an inquiry that the information is not being presented for any improper purpose, such as to harass, and needlessly increase the cost of litigation. The claims and legal contentions must be warranted by existing law and by non-frivolous arguments. The factual contentions must have evidentiary support or likely have evidentiary support after a reasonable opportunity for investigation.
Based on the assertions made by the Iowa counties and drainage districts, it appears DMWW and its CEO have none of this support in what they have filed against the farmers.