The Des Moines Water Works (DMWW) federal case is coming to a close. DMWW sued Sac, Calhoun, and Buena Vista Counties in Iowa, as trustees of numerous Iowa Drainage Districts. After the complaint was filed by DMWW, the Counties sought summary judgment in federal court regarding the Clean Water Act (CWA) issues. The U.S. District Court referred the common law issues to the Iowa Supreme Court for review and decision. The CWA claims are now fully briefed. The Drainage Districts filed their reply brief on May 31, 2016. It is a homerun. Regarding jurisdiction issues, the Drainage Districts brief destroys DMWW’s claims. First, the districts describe how there is no jurisdiction for the Court to order a drainage district to resolve an issue where it has no power to resolve that issue. Second, the Drainage Districts point out DMWW sat on its hands for 44 years and did nothing regarding permits for tile drainage discharges. The killer argument the brief makes is “…everyone including Congress, the Environmental Protection Agency…the Iowa Department of Natural Resources…and every single state in the Union with drainage tile makes [it] clear NPDES permits are not required for drainage tile.”
Notwithstanding these facts, the bloviating director of DMWW claims he knows better than everyone else “…is a majority of one.” No, really. In an answer to a question, the DMWW director responds that DMWW is a majority of one and his rate payers are a majority of one. He claims he is correct and everyone else is wrong in interpreting the CWA. The Drainage Districts and their law firm actually demonstrate to the court that DMWW’s arguments are in conflict with 44 years of consistent interpretation. The brief actually reviews the CWA’s legislative history and cites to EPA documents which declare EPA has never required NPDES permits for drainage tile. On page 18 of the Drainage Districts’ brief, a thorough discussion begins describing how Congress placed agricultural runoff under State control in 1972.