On Jan. 9, the Des Moines Water Works (DMWW) sent a letter to three drainage districts in Iowa providing 60 days’ notice that it intends to sue over nitrates in the water bodies that make up much of the drinking water supply for Des Moines. The threat of a lawsuit adds a new dimension to the ongoing debate about the environmental regulation of agriculture. This article takes a closer look at the issues raised.
As discussed previously, the Clean Water Act (CWA) was designed to protect, restore, and maintain the waters of the United States, mostly by prohibiting the discharge of any pollutant from a point source without a permit issued under the National Pollutant Discharge Elimination System (NPDES). In general, the NPDES system of permits restricts or limits the amount or concentration of pollutants discharged from point sources into navigable waters. (See, S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004)). Agricultural stormwater discharge and return flows from irrigation agriculture are not considered point sources and thus there is no requirement for NPDES permits for discharges. (See, Fishermen Against the Destruction of the Environment, Inc. v. Closter Farms, 300 F.3d 1294, 1297 (11th Cir. 2002)).
For CWA purposes, the potential DMWW lawsuit would test the agricultural stormwater discharge exemption for water flowing through tile drained farmland. According to the DMWW letter, drainage districts were created by law to construct, administer and maintain levees, drains, and drainage tiles. They are typically managed by a county board of supervisors and costs are covered by levying assessments on property owners within the district. Drainage tiles are below the surface and drain water out of fields into open ditches and streams.
Section 1365(a)(1) of the CWA allows any citizen to bring a lawsuit under the CWA “against any person, including the U.S. government or other governmental instrumentality for an alleged violation of an effluent standard or limitation or an order issued by EPA or a State.” (33 U.S.C. 1365(a)(1)). The person seeking to sue must give 60 days’ notice and a citizen is defined as a “person or persons having an interest which is or may be adversely effected.” (33 U.S.C. 1365(g)).
Likely the main issue raised by DMWW under the CWA is whether water carrying nitrates as it flows through drainage systems constitutes “agricultural stormwater discharge” that is exempted from permitting requirements. This appears to be an unexplored issue in the law and the following discussion is merely an initial look. It is not meant to explain how a court might rule on the lawsuit should it be litigated, nor is it intended to offer an opinion about the merit of the issues raised or the lawsuit in general.
It is clear under the statute, regulations, and court decisions that point source discharges require NPDES permits but that agricultural stormwater discharges are excluded from the definition of point source and do not require an NPDES permit. (See, 33 U.S.C. §1362(14), 40 C.F.R. 122.3, and Closter Farms, Inc., 300 F.3d at 1297). This is the key issue for any citizen’s suit under the CWA, because if the water flowing through the tile system is considered agricultural stormwater then the exemption effectively blocks any citizen lawsuit under the CWA. (See, Hiebenthal v. Meduri Farms, 242 F.Supp 2d 885, 887 (Dist. Or. 2002)). In other words, if the exemption applies, there is nothing to maintain a lawsuit because there is no discharge from a point source requiring a permit; there is no case.
In its letter, DMWW argues that the water flowing through the drainage district systems is not stormwater discharge but is “artificially drained groundwater.” Specifically, DMWW claims that the water is “conveyed by ground water, not by storm water” and that the exemption does not apply. (DMWW letter, pp. 7-8). According to EPA regulations, “storm water means storm water runoff, snow melt runoff, and surface runoff and drainage.” (40 C.F.R. 122.26(b)(13)). The section of the regulation dealing with the exclusion states that “[a]ny introduction of pollutants from nonpoint-source agriculture and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures, range lands and forest lands” does not require an NPDES permit. (40 C.F.R. 122.3(e)).
There are two areas of CWA case law that may shed some light on this discussion. The first involves how courts have treated discharges from Confined Animal Feeding Operations (CAFO). The same provisions that provide an exemption for agricultural stormwater discharge explicitly remove from that exemption any discharge from a CAFO. In other words, discharges from CAFOs are not exempt and must have an NPDES permit. The second involves return flows from irrigated agriculture which is also exempted from the definition of point source.
For CAFOs in general, a discharge falls under point-source pollution and is subject to an NPDES permit. The CAFO rule and NPDES permit requirements also apply to the application of wastes to land areas under control of the CAFO unless “it is an agricultural storm water discharge.” (40 C.F.R. 122.23(f)). Such “precipitation-related” discharges are considered an agricultural stormwater discharge so long as the application was done in accordance with a nutrient management plan. The U.S. Court of Appeals for the Second Circuit has looked specifically at “whether the liquid manure spreading operations fell within the ‘agricultural stormwater discharges’ exception to point source discharges” under the CWA. (Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114, 115 (2nd Cir. 1994)). It decided that the “collection of liquid manure into tankers and their discharge on fields from which the manure directly flows into navigable waters are point-source discharges.” (Id., at 119). The court was sorting out whether the particular discharges in the case were caused by precipitation or just happened to occur on rainy days. It found that it was reasonable to conclude that the discharges were “primarily caused by the over-saturation of the fields” with manure and waste and “were not the result of rain.” (Id., at 121).
Ten years later, the Second Circuit revisited the agricultural stormwater discharge issue with regards to the CAFO rule. (Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 507 (2nd Cir. 2005)). Under the CAFO rule, “precipitation-related” discharges involving land application of CAFO wastes are considered an agricultural stormwater discharge so long as the application was done in accordance with a nutrient management plan. (40 C.F.R. 122.23(f)). The court looked closely at the different treatment for land application by a CAFO (point-source discharge) compared to a precipitation-related discharge where the application had been within the nutrient management standards (nonpoint-source discharge). The court decided that EPA’s rule was a reasonable reading of the CWA provisions. (Id., at 507). According to the court, Congressional intent was to make clear the “impropriety of imposing on ‘any person’ liability for agriculture-related discharges triggered not by negligence or malfeasance, but by the weather—even when those discharges came from what would otherwise be point sources.” (Id.)
The second area that might shed some light is the exemption language that applies to return flows from irrigated agriculture. The U.S. Court of Appeals for the Eleventh Circuit has concluded that any water used in the agricultural irrigation process is classified as return flow and thus can be discharged without an NPDES permit. Fisherman Against the Destruction of the Environment, Inc. v. Closter Farms, Inc., 300 F.3d 1294, 1297-98 (11th Cir. 2002). A case recently litigated in the District Court for the Eastern District of California appears to be testing the limits of the irrigation return flow exception, specifically as it applies to a tile drainage system under farmlands in the Central Valley that drain groundwater as well as irrigation water. (See, Pacific Coast Federation of Fisherman’s Assns. v. Glaser, 2012 U.S. Dist. LEXIS 124720 at *4 (Aug. 30, 2012, E.D. CA)). In one ruling the court indicated it is willing to let the case go forward to determine whether there are discharges in the tiles that are unrelated to agricultural crop production. (See, Pacific Coast Federation of Fisherman’s Assns. v. Glaser 2013 U.S. Dist. LEXIS 132240 at *39 (Sept. 16, 2013, E.D. CA) (the exemption “covers discharges from irrigated agriculture that do not contain additional discharges unrelated to crop production.”).
The cases discussed in this article highlight the issues raised by DMWW but in no way dispose of them. Far from providing guidance or clarity, these cases indicate the challenge for courts in addressing environmental regulation of agricultural production under the CWA. The potential DMWW litigation would raise an issue as to whether the water flowing through drainage systems has arrived there due to storms and precipitation, or whether it is merely groundwater; it could question if there is even a difference. Such a lawsuit may require determining how much water in the system is due to precipitation and how much is not. At this stage it is far too early to know, but should the litigation proceed it will be watched closely.
Legal dissection of words and phrases, however, seems unsatisfactory; it obscures a bigger issue. It seems too easy—too convenient—to blame farmers for the nitrate problems in Des Moines. The farmer is putting nitrogen on the fields; nitrates are in the drinking water. The farmer, however, has no interest in putting nitrogen into the water supply; he or she has no control over the rains and lost nitrogen is also a loss to them because it doesn’t feed the growing crops. How much of this is beyond the farmer’s control? Collectively through markets and policies we are telling farmers to produce more and more corn to feed livestock and nine billion mouths, to help solve energy challenges. At the same time, it isn’t fair that the citizens of Des Moines or any other place should have pay to clean nitrogen out of their drinking water so that farmers can provide for this ever-more crowded planet. The bottom line here may well be that any such lawsuit is an indicator of failure: a failure of policies and people to find better solutions to common problems. The farmer loses when nitrogen washes into the drinking water supply, and so do the citizens who pay for cleaning that nitrate out of the water so they can safely drink it. If ever there was an issue begging for smarter policy solutions, this is it.