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Iowa on the National Stage for more than the Big Dance.

If it was a $50 fine to murder someone, we wouldn’t have a population problem anywhere. This phrase sums up why people follow the law. Either they fear the punishment (life in prison appears to be a higher deterrent) or they think the law is a good idea to begin with(most folks just wouldn’t). If the cost of non compliance is low, even a toddler knows that paying the piper is worth the fun or risk of non compliance. When no one really knows who is supposed to comply, then the rule enforcers are left with no clear line to enforce and anybody who doesn’t really want to expend effort to do anything doesn’t have to.

This principle is playing out in a case of national importance filed right here in Iowa. Currently, Iowa has a voluntary nutrient reduction system designed to combat the ever growing nitrate level in our drinking water. However, the laws on the books are unclear on who is on the hook for making sure the water stays clean. The Des Moines Board of Water Works Trustees (DMWW) has about 500,000 customers that it owes a duty to provide clean water to. It is spending a lot of money attempting to do so. Not satisfied with the lack of progress on the matter, they filed a federal Clean Water Act (CWA) lawsuit against the supervisors and drainage districts of three counties. The lawsuit alleges that the county supervisors, as trustees for the drainage districts, are operating the drainage districts in an “unlawful and antisocial” manner that is contrary to the “public health and welfare.” The DMWW seeks a court order to cease “all discharges of nitrate that are not authorized by an NPDES or state operating permit.” They specifically targeted counties that had data to support their concerns about nitrate infiltration.

What DMWW really wants is change and since they aren’t getting their way through cooperation, they are seeking it through judges rulings. Its goal is to force national and state agencies change regulations and positions they have had for years. If successful, this case could impact the entire nation industry of agriculture. Farmers will feel the impact if they have to apply for discharge permits. It could ad some depth to the current voluntary nutrient reduction strategy. If state and local governments are mandated to take actions, perhaps funding will be available to farmers to implement buffer strips and other reduction stratagems that they will be compelled to complete if DMWW gets their way. Of course, those funds have to come from somewhere, schools, roads, bridges or tax payers wallets are all candidates I would suppose.


The claim by DMWW is that drainage districts are “point sources” of nitrate pollution and therefore must comply with the federal CWA and the National Pollutant Discharge Elimination System (NPDES) permit program, which is enforced by the Iowa Department of Natural Resources. However, “point source” does not include agricultural storm water discharges and return flows from agricultural irrigation. State and federal agencies have held that discharge from farm drainage tiles to be exempt. No agency has created a permitting system for drainage districts. No agency has sought to regulate drainage tiles as point sources. Likewise, no concrete definition of what is ag storm water is ready at hand.

The DMWW is trying to create law and the only case close, in California, ruled that drain tiles are not point source solutions. DMWW wants the tile treated as point source and they want a definition of what is ag storm water. The complaint also asserts nuisance claims. DMWW claims a single, indivisible harm to them by interfering with DMWW’s property right to withdraw high quality water. DMWW also complains that the districts’ discharge of nitrate is a physical invasion of DMWW’s use and enjoyment of its property. And the DMWW alleges that the supervisors have been negligent in creating and maintaining the network of drainage facilities. These seem to be “kitchen sink claims” tossed in as supporting cast members to their main thrust. DMWW also throws in some constitutional claims, one that the drainage districts have taken DMWW’s property by government action without just compensation by invading it with nitrates. The other is that DMWW is deprived of due process and equal protection under the United States Constitution because, the Iowa Supreme Court has held that drainage districts are not subject to a lawsuit for money damages under any state of facts Iowa law. Again DMWW is attempting to create new law.

Finally, the DMWW is attempting to set the standard for the drainage districts to use their power to force change . Districts have legal powers including the power of eminent domain, taxing authority via levying of assessments, and the ability to enter onto property to construct and perform maintenance of ditches.In the end, the suit is a natural event that follows when the laws aren’t clear and when not clear, no one can be held to any sort of responsibility. Filing a law suit transfers power from the parties to a jury or a judge. Most of the time, filing a lawsuit to get your way instead of achieving a political solution creates harder lines and entrenched stances. That result rarely leads to progress in the end.

Monday, September 16, 2019
  • Patrick B. Dillon
  • Jill Dillon
Dillon Law PC
Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
Dillon Law PC
Jill Dillon focuses on family law, estate planning and IRS matters. Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill spent extensive time advocating for low income tax payers in front of the IRS and the State of Iowa Department of Revenue while at Drake.

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