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

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 implementation plans. This Note 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. P RE -C LEAN W ATER A CT R EGULATIONS .................................. 1218 B. C LEAN W ATER A CT ’ S E NACTMENT ......................................... 1220 C. S TATE -F EDERAL E NFORCEMENT B ALANCE ............................... 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. A GRICULTURAL W ATER P OLLUTANTS .................................... 1227 B. P ROBLEMS WITH I MPLEMENTATION ....................................... 1230 IV. SOLUTIONS FOR AGRICULTURAL INTERESTS AND THE CLEAN WATER ACT ................................................................................. 1234 A. T HE C OURT S HOULD D ETERMINE D RAINAGE D ISTRICTS ARE P OINT S OURCES AND T HEREFORE F ALL U NDER THE NPDES P ERMIT R EQUIREMENT .......................................................... 1235 B. P ERMITTING P LAN FOR D RAINAGE D ISTRICTS ......................... 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 sides 3 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. 2018] SUCCESSFUL AGRICULTURE AND CLEAN WATER 1215 court avoided significant downstream effects by its narrowed decision, a new ruling on the Clean Water Act’s (“CWA” or “Act”) authority to regulate drainage districts could still dramatically alter the current landscape. 5 To understand the Des Moines Water Works CWA claim, one must first understand what a drainage district is, who manages drainage districts, and Des Moines Water Works’ motivation for its past suit against these three particular drainage districts. The term “drainage district” refers to the system of pipes and ditches that carry excess water from croplands to larger water systems. 6 Iowa’s agricultural communities rely on these drainage districts to keep their fields suitable for farming, even during periods of significant moisture. 7 In specific areas with high water tables, such as in northwest Iowa, farmers would be unable to use their land without some type of drainage infrastructure. 8 In other areas, like the three counties implicated in the Des Moines Water Works case, farmers use drainage tile—a type of plastic tubing run below the crops’ root level—to collect moisture when soil saturation is too great for crop production. Drainage tile directs the excess water into drainage districts. 9 Frequently, the term “drainage district” is not used to define the specific type of land, but to refer to those in charge of overseeing the land. In the Des Moines Water Works case, the media, courts, and public generally used the term “drainage district” to refer to the Board of Supervisors who oversee the drainage sites. 10 The Board of Supervisors—made up of county politicians and farmers—create and control these drainage districts with a thorough understanding of the water runoff patterns, the strength of the water’s flow, and the potential for pollution. 11 In the Des Moines Water Works lawsuit, the reason the water utility sued three counties is because counties oversee the Board of Supervisors, and the Board of Supervisors oversee drainage districts. 12 5. Mark Ryan, The Clean Water Act’s Agricultural Exemptions , ADVOCATE, June–July 2016, at 48, 49–50. 6. EVERYTHING YOU WANTED TO KNOW ABOUT DRAINAGE DISTRICTS IN IOWA, http://www. boonecounty.iowa.gov/home/showdocument?id=186 (last visited Dec. 9, 2017). 7 . Id. 8 . Id. 9 . Id. See generally Jerry Wright & Gary Sands, Planning an Agricultural Subsurface Drainage System , U. MINN. EXTENSION, http://www.extension.umn.edu/agriculture/water/planning-asubsurface-drainage-system (last visited Dec. 9, 2017) (providing farmers with a detailed roadmap for installing their own drainage infrastructure). 10. EVERYTHING YOU WANTED TO KNOW ABOUT DRAINAGE DISTRICTS IN IOWA, supra note 6. 11 . Id. 12 . See IOWA CODE § 468.230 (2012). The Board of Supervisors can tax, construct, improve, and maintain drainage projects. Repairs occur infrequently and are generally done by the county or a private contract. Farmers have to pay for any work done in the drainage district even though the work may not be done on the farmer’s specific property. 1216 IOWA LAW REVIEW [Vol. 103:1213 Des Moines Water Works sued the three counties/drainage districts because the utility believed the districts’ drainage tile systems were responsible for a drastic increase in water pollution. The utility believed nitrates from excess crop runoff were flowing through the drainage districts and into the Raccoon River. The high concentration of nitrates was then flowing downstream and damaging the water quality of the Des Moines watershed. 13 In support, Des Moines Water Works cited independent water measurements that suggested the nitrate levels in Des Moines’ water were at record highs. 14 Furthermore, the utility argued it had no choice but to filter out these pollutants because the high level of water pollutants would continue, and federal law would continue to require the utility to have nitrates below a specific level before supplying water to a community. 15 As a result, Des Moines Water Works filed a legal claim on CWA grounds, which ultimately was avoided, in an effort to hold the drainage districts accountable for the water’s high nitrate levels. 16 The Des Moines Water Works CWA claim was thought to have hinged on the notion that drainage districts with drainage tile discharge are “point sources” 17 within the meaning of the CWA. Farmers and environmentalists alike believed the claim would force the court to interpret complex regulatory language within the Act while also confronting significant public policy concerns...