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Expect water works case to reach the U.S. Supreme Court

Sometimes I read numerous articles and ignore them, but there are those few that make me pause and wonder what if...

The following article was on the AGProfessional website.  I thought it is important for many people to know about this case.  Just like WOTUS, this can have a major impact on farming as we know it - rather you can be the judge of it!

About 100 million acres of tile-drained farmland in the U.S. will be affected by the ultimate decision of a lawsuit filed by the Des Moines Water Works board of directors against three counties' drainage districts and their directors in northern Iowa.

On March 16, the Des Moines Water Works board filed suit against the drainage district directors of Sac, Calhoun and Buena Vista counties, which are within the U.S. District Court for Northern Iowa. And the lawsuit claims drainage tile water ultimately flowing into the Raccoon River with high nitrate levels results in the Des Moines Water Works having to pay a huge sum to bring water within legal nitrate levels for use by the 500,000 customers of the water treatment facility. The claim is that the drainage tile water nitrate levels violate provisions of the Clean Water Act and farmers should be required to have National Pollutant Discharge
Elimination System (NPDES) permits to allow discharge of tile water into public waterways.

Des Moines Water Works contends it has had to spend $1 ½ million in the last two years because of nitrate discharge into the Raccoon River from which the treatment facility gets much of its water. It contends those expenses are the fault of the tile drainage. Third-party testing of drainage tile discharged water has shown nitrate levels higher than allowed by the Clean Water Act is being used to support the lawsuit.

Bill Stowe, CEO of the Des Moines Water Works, did his homework to file the lawsuit at a selected best timing and also being able to get his choice of judge to hear the lawsuit. "He has spent a long time developing this lawsuit, and the whole purpose of this lawsuit—and I've had long conversations with him long in advance of this—is because he wants agriculture to be regulated. He wants production agriculture regulated like any other industry in this country," said Doug Gross, corporate council for the Agribusiness Association of Iowa, during a presentation at the Agricultural Retailers Association regional meeting in Fort Madison, Iowa, earlier this summer.

Mark Bennett is the judge hearing the lawsuit, and he has a reputation for being fairly liberal; he is the judge that Stowe wanted to hear the case, according to Gross.

Gross is a primary in the BrownWinick Law Firm and one of the leads in assisting the drainage district directors fight the lawsuit. This lawsuit has the potential to change the way agricultural production occurs in the U.S., he says. He contends everyone in agriculture from the production side and from the retail and service side need to understand the implications of this lawsuit.

"This Des Moines Water Works suit is probably one of the strongest, loudest warning shots over the bow of agriculture that we've had, at least in my lifetime," Gross said.

The trial is scheduled to begin Aug. 8, 2016. "That is remarkably fast. Most of these Clean Water Act suits take years just for discovery of data and information. For this one, Judge Bennett set a very aggressive schedule for hearing this case. For example, the experts for the defendants have to be identified and designated by Dec. 1. You've got to have a lot of information and know a lot about your case before you can designate an expert. … We've got a lot of work to do to make sure that we can meet this type of deadline. Motions have to be filed by the first of April," Gross noted.

Motions for summary judgments a lot of times can dispose of parts of cases where there are not facts in question. But the defendants in the suit and all of agriculture must expect this case to be tried and not dismissed.

"I suspect this case will go all the way to the United States Supreme Court. Judge Bennett will make a decision, it will go to the 8th Circuit Court of St. Louis regardless of the outcome and likely go to the U.S. Supreme Court to make a determination. It can take years to do that and take millions of dollars to defend a case that goes all the way to the Supreme Court," Gross said.

Environmental groups from the U.S. and even world are expected to be financing the lawsuit for the Water Works. As for defending the drainage district directors, a tax exempt defense fund has been established with defense fund directors reflective of the Agribusiness Association of Iowa.

Gross provided a detailed explanation about what is at stake. The lawsuit is contending that farmer tiles are point source pollutants and should require farmers to have NPDES permits.

"The point source is what is required to have the NPDES permit but does not include agricultural storm water discharge return flows from irrigated agriculture. There is an exemption in the Clean Water Act for agricultural storm water discharges and return flows from irrigated agriculture. There has been litigation in California on the issue of irrigated agriculture that frankly turned out well for agriculture. But we have not had litigation over the issue of what is agricultural storm water discharge. This is a case of first impression nationwide." Gross said.

"The exemption in regard to agricultural storm water discharge has always been interpreted by agriculture that the discharge from drainage tiles are exempted from the Clean Water Act—specifically exempted by Congress from the Clean Water Act. Des Moines Water Works is suggesting that since the water is conveyed by a pipe and that the pipe happens to be underground it is not storm water discharge instead it is groundwater. They are saying it is not storm water it is groundwater. So, at the end of the day, the question is what is groundwater and what is storm water," he explained.

Gross concluded the explanation by saying, "Obviously our argument is that agricultural storm water includes water that is precipitated from the air and infiltrates through the ground and is then discharged by the drainage tiles regardless of where that drainage tile is placed. So, that is where this case is going to come down to. How the court will determine what is groundwater."

Could the court suggest that storm water depends on where the drainage tile is placed—above or below what is determined to be the groundwater level?

The original article can be found here.


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