Successful Agriculture and Clean Water?: A Workable Path Forward for Regulating Drainage Districts as Point Sources Under the Clean Water Act

Author:Eric M. Dirth
Position:J.D. Candidate, The University of Iowa College of Law, 2018
Pages:1213-1243
SUMMARY

This Note addresses drainage district regulation under the Clean Water Act in the midst of a continued agricultural and environmental battle over water quality. One recent lawsuit, Des Moines Water Works v. Sac, Calhoun, and Buena Vista Counties, exemplifies the complexities of current perspectives on drainage district regulation and implementation. In the lawsuit, an Iowa water utility company... (see full summary)

 
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Successful Agriculture and Clean Water?:
A Workable Path Forward for Regulating
Drainage Districts as Point Sources Under
the Clean Water Act
Eric M. Dirth*
ABSTRACT: This Note addresses drainage district regulation under the
Clean Water Act in the midst of a continued agricultural and environmental
battle over water quality. One recent lawsuit, Des Moines Water Works v.
Sac, Calhoun, and Buena Vista Counties, exemplifies the complexities of
current perspectives on drainage district regulation and implementation. In
the lawsuit, an Iowa water utility company sued three upstream counties’
drainage districts for allegedly discharging excess nitrates into the river that
the utility relied on for supplying water to its customers. This Note places the
Water Works lawsuit within a larger context to contend that drainage districts
with drainage tile should fall under the point source definition of the Clean
Water Act and thus be subjected to more stringent observation and control.
This Note next recommends how Iowa’s Department of Natural Resources
should undertake the permitting process to avoid the pitfalls that have
hindered other states’ water discharge permit implementatio n pl ans . Th is Not e
concludes by expressing how two seemingly incompatible ideas, successful
agriculture and clean water, can result from this necessary regulation.
I.INTRODUCTION ........................................................................... 1214
II.WATER QUALITY REGULATION HISTORY, DEVELOPMENTS,
AND IMPLEMENTATION STRATEGIES ............................................ 1218
A.PRE-CLEAN WATER ACT REGULATIONS .................................. 1218
B.CLEAN WATER ACTS ENACTMENT ......................................... 1220
C.STATE-FEDERAL ENFORCEMENT BALANCE ............................... 1223
*
J.D. Candidate, The University of Iowa College of Law, 2018; M.A. in Environmental
Communication and Advocacy, James Madison University, 2015; B.A. in Communication
Management, Saint Leo University, 2013.
1214 IOWA LAW REVIEW [Vol. 103:1213
III.REGULATING DRAINAGE DISTRICTS UNDER THE CLEAN
WATER ACT ................................................................................. 1226
A.AGRICULTURAL WATER POLLUTANTS .................................... 1227
B.PROBLEMS WITH IMPLEMENTATION ....................................... 1230
IV.SOLUTIONS FOR AGRICULTURAL INTERESTS AND THE CLEAN
WATER ACT ................................................................................. 1234
A.THE COURT SHOULD DETERMINE DRAINAGE DISTRICTS ARE
POINT SOURCES AND THEREFORE FALL UNDER THE NPDES
PERMIT REQUIREMENT .......................................................... 1235
B.PERMITTING PLAN FOR DRAINAGE DISTRICTS ......................... 1239
1.Using General Permits ................................................ 1239
2.Defining Point Source Drainage Districts ................. 1240
3.Building Community Support .................................... 1242
V.CONCLUSION .............................................................................. 1243
I. INTRODUCTION
In its complaint against Sac, Calhoun, and Buena Vista Counties, Des
Moines Water Works, the largest water utility in the State of Iowa, claimed that
“drainage districts can be, should be, and are required by law to be regulated
as ‘point sources’ under the Clean Water Act.”1 This legal claim was one of
many from the latest clash between public utilities and agricultural interests
in a battle over water quality.2 Those caught up in this contentious issue
picked sides3 as the case progressed slowly through the federal court system,
but the court eventually punted on the issue.4 Because the federal district
1. Complaint at 9, Bd. of Water Works Trs. of Des Moines v. Sac Cty. Bd. of Supervisors,
890 N.W.2d 50 (N.D. Iowa 2017) (No. 5:15-cv-04020), 2017 WL 1191173.
2. See Bourree Lam, Finding the Right Price for Water, ATLANTIC (Mar. 24, 2015), http://www.
theatlantic.com/business/archive/2015/03/finding-the-right-price-for-water/388246 (demonstrating
how water’s increased demand and scarcity continue to pit agricultural and water utility interests against
each other).
3. Even Raygun, a popular Midwestern apparel brand, weighed in on the issue. On Raygun’s
website, a person could buy either a fictional novel about a reporter covering a case about poisonous
water in Iowa or an America Needs Clean Water sticker. Water, RAYGUN (May 12, 2016), https://www.
raygunsite.com/blogs/news/94221702-water; Clean Water Die-Cut Sticker, RAYGUN, https://www.
raygunsite.com/products/clean-water-stickers-round (last visited Dec. 9, 2017). On the other side, the
Iowa Partnership for Clean Water developed political-style television commercials aimed at persuading
the public to oppose the Des Moines lawsuit. Marcus McIntosh, New TV Ad Takes Aim at Water Works
Drinking Water Lawsuit, KCCI, http://www.kcci.com/news/new-tv-ad-takes-aim-at-water-works-drinking-
water-lawsuit/33007014 (last updated May 13, 2015, 6:01 PM).
4. See Memorandum Opinion and Order on Defendant’s Motions for Summary Judgment
at *5, Bd. of Water Works Trs. of Des Moines v. Sac Cty. Bd. of Supervisors, 890 N.W.2d 50 (N.D.
Iowa 2017) (No. C15-4020-LTS), 2017 WL 1042072. Common law claims on public nuisance
and trespass, in addition to the Clean Water Act claim, were under review. See id. at *1.

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