Des Moines Water Works’ Law Suit Could Impact VA Farmers

The Iowa drainage districts, in their brief, have demonstrated clearly that agricultural drainage is a nonpoint source.

DMWW appears to lack understanding of agriculture and nonpoint source pollution (NSP). In fact, it says in its brief that even EPA seems to be “confused” on what is NSP.

EPA declares “NPS pollution is caused by diffuse sources that are not regulated as point sourcesand normally is associated with agricultural, silvacultural and urban runoff, runoff from construction activities, etc…”

Pretty simple!

DMWW’s main argument is the agricultural stormwater runoff exclusion does not apply to drainage districts with tiles. It spends pages arguing the CWA’s core command is to prohibit discharges of pollutants from point sources. It claims there has been inaction by EPA and the State of Iowa for 40 years.

DMWW further claims that by not regulating drainage district tiles there will be open neglect of public health and safe clean water. It claims “…regulatory inaction does not change the statutory landscape. The time has come to address pollution from drainage and to apply the ‘core command’ of the CWA to the drainage districts as the statute dictates.”

The only problem with this expansive statement is that it is wrong. Congress and the courts have made it clear nonpoint source runoff pollution from agriculture is exempt from the CWA’s regulation of point sources. EPA, on its webpage, describing what is a nonpoint source, declares “Nonpoint source pollution generally results from land runoff, precipitation, atmospheric deposition, drainage, seepage or hydrologic modification.”(It appears DMWW lawyers do not understand the terms drainage, seepage and hydrologic modification.)]

The DMWW brief incorporates many arguments, but the key is that it argues that agricultural stormwater does not include the discharge of groundwater. One is puzzled to figure out that stormwater does not seep into the ground and become groundwater. In fact, DMWW claims that stormwater is water that is not absorbed by the soil and only moves across the surface of the land. It claims “This does not include the groundwater that carries nitrate pollution.” DMWW would gut the agricultural stormwater discharge by saying only sheet flow on your farmland is exempted by the agricultural stormwater exemption. DMWW’s brief claims that it is undisputed that the discharge of nitrate is created by groundwater and not by stormwater.

DMWW essentially argues the drainage districts’ pipes and ditches are not nonpoint sources and do not enjoy the benefit of agriculture’s stormwater runoff exemption. DMWW argues that because agricultural stormwater is channeled through a drain, it automatically becomes a point source. This argument has been tried numerous times and has failed.

It is now up to the court, once again, to protect the agriculture stormwater runoff exemption. /p>
(This article first ran in Farm Futuresn May 9, 2016)

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