By Todd Neeley
DTN Staff Reporter
OMAHA (DTN) -- In asking an Iowa judge to issue a legal ruling in a controversial water quality case before it ever goes to trial, attorneys for 10 Iowa drainage districts used Des Moines Water Works General Manager Bill Stowe's own words against him, according to court documents.
Stowe spearheaded a first-of-its-kind lawsuit that claims nutrient runoff from agriculture in the Raccoon River watershed pollutes the water the utility uses to supply drinking water to customers -- although ag drainage has always been exempt from federal law.
Attorneys for the utility have been given until May 5 by the U.S. District Court for the Northern District of Iowa in Sioux City to file a response on the drainage districts' motion for summary judgment. Such a motion is a request to dispose of a case without trial and is often filed when there is no dispute as to the facts of a case.
In this particular case, attorneys for the drainage districts say Stowe and the defendants are in agreement on a number of issues, centered on the power of Iowa drainage districts to regulate nutrient runoff and that the utility has no direct proof that the nutrient runoff came from the 10 drainage districts in question.
During a deposition of Stowe taken as part of the ongoing case set for trial in August, he agreed with defense attorneys that Iowa drainage districts do not have the power to require farmers and others to have permits for discharging nutrients into waters, according to court documents, because such discharges are exempt from federal law.
The federal lawsuit was filed against drainage districts in Buena Vista, Calhoun and Sac counties, all of which are northwest of Des Moines and part of the Raccoon River watershed. The lawsuit also names county supervisors.
If successful, it is believed the legal action could lead to regulating agriculture as a pollution point source in Iowa and perhaps across the country if legal fever spreads. It could require farmers to pay for expensive permits for normal farm practices, as well as restrict the use of fertilizer or other farm chemicals.
At the center of the issue is the extensive subsurface tile drainage that helped turn the Raccoon River watershed northwest of Des Moines into one of the most productive cropping and livestock areas in the country. The tiling also allowed farm nutrients to move downstream. The lawsuit specifically declares tile drainage pipes and ditches operated by the drainage districts as "point sources which transport a high concentration of nitrates contained in groundwater."
The Raccoon River drains 3,625 square miles, including some 2.3 million acres in west-central Iowa.
"DMWW asks this court to ignore drainage districts' lack of ability to do anything DMWW requests, ignore congressional intent, overturn more than 40 years of consistent interpretation by the agencies responsible for administering the relevant statutes that Congress never overturned, and impose permitting requirements for drainage districts," the new motion said.
"... This case has received extraordinary media attention. Unfortunately, DMWW's nearly constant statements to the press tend to distract from the real issues before this court. The facts of this case are actually straightforward and resolution of this matter turns on the purely legal task of statutory interpretation."
Drainage districts were formed to allow wetlands to be turned into agricultural lands, the motion said.
Landowners in the districts are allowed to overrule any improvements proposed by supervisors and others who oversee the districts.
"DMWW CEO Stowe acknowledged he knows of no improvement landowners cannot stop," the motion said.
"There is no claim any drainage district in this case exceeded its authority in any way."
In his deposition, Stowe acknowledged Iowa's drainage districts perform the duties as directed by state law.
"DMWW's CEO Bill Stowe concedes this case is not about whether Des Moines residents 'are getting unsafe drinking water,' but rather, who pays the cost of treatment," court documents said.
Conversely, defense attorneys said the Safe Drinking Water Act directs DMWW and similar utilities to ensure nitrate in drinking water does not exceed 10 milligrams per liter of water.
"Congress chose to place the burden to clean river water on drinking water utilities wishing to use river water, not those who convey nitrate to rivers," the defendants said in their motion.
"Although DMWW may disapprove, Iowa's leaders chose to address nitrate issues through its EPA-approved and award-winning nutrient reduction strategy ... DMWW asks that this legislative decision be reversed judicially."
What's more, the defendants' attorneys said the utility is unable to prove nutrients flowing from the counties in question have been a burden.
"DMWW cannot identify any day when more than 0.1 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," according to court documents.
"In other words, DMWW cannot identify even once when all defendants combined contributed even one/100th of the level necessary for DMWW to treat for nitrate. Nor can DMWW identify a single 'day all the drainage districts Des Moines Water Works sued combined caused Des Moines Water Works to have to treat water for nitrate.'"
DMWW has asked the court to order the drainage districts to require landowners to implement in-field practices such as installing bioreactors, buffer strips and other measures to cut back on nutrient runoff, although, "Infield practices are well beyond a drainage district's control ... Simply put, no change DMWW proposes is within a drainage district's trustee's power ...
"DMWW's attempts to fundamentally alter the longstanding legal framework are curious given its CEO's concession that drainage districts have no power to compel any of the things DMWW seeks to further reduce nitrate beyond natural denitrification that already occurs in the Districts' ditches," the defendants' attorneys said.
Todd Neeley can be reached at firstname.lastname@example.org
Follow him on Twitter @ToddNeeleyDTN
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