The Des Moines Water Works (DMWW) recently filed suit against several Iowa drainage districts for discharging excess nitrate pollution through groundwater in subsurface agricultural drainage systems into the Raccoon River, which DMWW relies upon to provide drinking water for approximately 500,000 Iowans.

As previously reported here, the lawsuit seeks to hold these drainage districts liable for discharging nitrate pollution without complying with permitting requirements under the Clean Water Act and other analogous Iowa law.  Alternatively, the complaint alleges that “the discharge of nitrate pollution into the Raccoon River by the Drainage Districts constitutes a nuisance, a trespass, negligence, an unconstitutional taking of rights secured to [DMWW] by the constitution and laws of the Unites States and the State of Iowa, and a deprivation of rights under color of law.”  The complaint notes perceived inadequacies in the Iowa Nutrient Reduction Strategy, which seeks to address agricultural pollution through voluntary measures, and cites to groundwater sampling collected in these drainage districts over an 8-month period to bolster its claims that these drainage districts should be subject to regulation.

Although the lawsuit does not name individual farmers, drainage districts could potentially require farmers to adopt additional water quality controls if the litigation is successful.  Not surprisingly, the case has drawn criticism from the Iowa Farm Bureau and the Iowa Partnership for Clean Water, a recently-formed non-profit organization that has launched an advertising campaign in opposition to the litigation.

Squire Patton Boggs will continue to monitor these developments as this litigation proceeds.