Dead Zones & Drinking Water: an Update on the DMWW Lawsuit

The potential trial on the Des Moines Water Works (DMWW) lawsuit against three drainage districts in Iowa over nitrates in the drinking water has been delayed until June 2017. The lawsuit is currently in the motion stage. The Drainage Districts are seeking summary judgment against DMWW's claims under the Clean Water Act. This article continues the series on water quality issues for farming with a review of the arguments for and against summary judgment. The motion asks for a decision by the judge as a matter of law. It requires demonstrating that there are no real or genuine disputes of material facts in the case. The Drainage Districts must demonstrate to the judge that the facts are undisputed and in their favor as a matter of law. By contrast, DMWW merely needs to demonstrate that there are material facts that are in dispute. Those material facts would then impact how the law is applied. If the Drainage Districts win on the motion, the case is concluded at the district court level and is then subject to appeal. If DMWW wins on the motion, the case proceeds further towards trial. The burden rests with the Drainage Districts. DMWW appears to be making a novel interpretation of the agricultural storm water discharges exclusion in the Clean Water Act. The Drainage Districts argue that the exclusion applies broadly to include discharges made through the drainage system because they are all related to weather and precipitation. As such, the court should rule in its favor as a matter of law. DMWW argues that the water coming out of the Drainage District infrastructure is not storm water but rather groundwater that picks up pollutants as it passes through the soil and that the Drainage Districts are not engaged in agricultural activities. DMWW contends that these are facts which are in dispute and material to any decision by a court, thus the case cannot be decided at this early stage on summary judgment.