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Clean Water Act Lawsuit

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Clean Water Act Lawsuit IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA WESTERN DIVISION ) BOARD OF WATER WORKS TRUSTEES ) OF THE CITY OF DES MOINES, IOWA, ) NO.: 5:15-cv-04020 Plaintiff ) ) vs. ) ) SAC COUNTY BOARD OF ) SUPERVISORS AS TRUSTEES OF ) COMPLAINT DRAINAGE DISTRICTS 32, 42, 65, 79, ) 81, 83, 86, and CALHOUN COUNTY BOARD OF SUPERVISORS and SAC ) COUNTY BOARD OF SUPERVISORS AS ) JOINT TRUSTEES OF DRAINAGE ) DISTRICTS 2 AND 51 and BUENA ) VISTA COUNTY BOARD OF ) SUPERVISORS and SAC COUNTY ) BOARD OF SUPERVISORS AS JOINT TRUSTEES OF DRAINAGE DISTRICTS ) 19 and 26 and DRAINAGE DISTRICTS 64 ) and 105. ) ) Defendants. ) ) ) Plaintiff, Board of Water Works Trustees of the City of Des Moines, Iowa submits its Complaint as follows: NATURE OF ACTION 1. This is a citizen enforcement action under 33 U.S.C. § 1365 of the Federal Water Pollution Control Act (commonly known as the “Clean Water Act” or the “CWA”) and Iowa Code § 455B.111 against Sac County Board of Supervisors as Trustees of Drainage Districts 32, 42, 65, 79, 81, 83, 86, and Calhoun County Board of Supervisors and Sac County Board of Supervisors as Joint Trustees of Drainage Districts 2 and 51 and Buena Vista County Board of Supervisors and Sac County Board of Supervisors as Joint Trustees of Drainage Districts 19 and Case 5:15-cv-04020-DEO Document 2 Filed 03/16/15 Page 1 of 52 26 and Drainage Districts 64 and 105 (collectively the “Drainage Districts”) brought on behalf of the Board of Water Works Trustees of the City of Des Moines, Iowa (“Des Moines Water Works”) for the discharge of nitrate pollution into the Raccoon River and the failure to obtain a National Pollution Discharge Elimination System (“NPDES”) permit or other state permit in violation of the Clean Water Act, 33 U.S.C. §§ 1311(a) and 1342(a), Iowa Code § 455B.186, and state and federal regulations enacted thereunder. 2. This complaint seeks a declaratory judgment that the Drainage Districts have violated the Clean Water Act and the Iowa Code by failing to comply with the effluent limitations prescribed by the Clean Water Act’s NPDES permit system and the state’s NPDES program, injunctive relief, civil penalties, and the award of costs, including attorney and expert witness fees. This is also an action for civil claims for damages and other equitable and legal relief under the United States and Iowa Constitutions, federal statutes, and Iowa statutory and common law. 3. Des Moines Water Works is a regional water utility providing drinking water to approximately half a million Iowans, both by direct service and by wholesale service to other utilities and districts, that obtains its raw water supply primarily from the Raccoon and Des Moines Rivers. 4. This case concerns the detrimental impact of the activities of the Drainage Districts on the sources of raw water from the Raccoon River relied upon by Des Moines Water Works. 5. Under the Safe Drinking Water Act, 42 U.S.C. § 300f et seq. (1996), Des Moines Water Works is obligated to meet the maximum contaminant level (“MCL”) standards set by the Environmental Protection Agency (the “EPA”) in its finished water. The MCL for nitrate is 10 2 Case 5:15-cv-04020-DEO Document 2 Filed 03/16/15 Page 2 of 52 mg/L. 6. The health risks associated with nitrate contamination include blue baby syndrome and potential endocrine disruption impacts. 7. In addition to health risks to drinking water, nitrate pollution also causes eutrophication and the development of hypoxic conditions in public waters, including the Gulf of Mexico’s “dead zone”. 8. Over the last thirty years, Des Moines Water Works has invested millions of dollars in capital infrastructure and has developed strategies to manage periodic high nitrate levels in the Raccoon River. 9. Despite the investments and efforts of Des Moines Water Works, record nitrate peaks in the Raccoon River watershed in the summer of 2013, the fall of 2014, and the winter of 2015 have threatened and continue to threaten the security of the water supply and the ability of Des Moines Water Works to deliver safe water in reliable quantities at reasonable cost. 10. A major source of nitrate pollution in the Raccoon River watershed is the artificial subsurface drainage system infrastructure, such as those created, managed, maintained, owned and operated by the Drainage Districts, consisting of pipes, ditches, and other conduits that are point sources which transport high concentrations of nitrate contained in groundwater. 11. Although this problem has been scientifically studied and documented for decades there has been no adequate or effective response to nitrate pollution from drainage systems. 12. In order for Des Moines Water Works to continue to provide clean and safe water at reasonable cost, and to protect the State of Iowa and the United States from a further environmental and health crisis, the discharge of nitrate from drainage district infrastructure must be addressed. 3 Case 5:15-cv-04020-DEO Document 2 Filed 03/16/15 Page 3 of 52 13. As explained more fully below, the discharge of nitrate by the Drainage Districts is pollution by a point source in violation of the CWA and Iowa Code § 455B.186(1) and an NPDES permit or other permit is required for the ongoing discharges by the Drainage Districts. 14. Alternatively, in addition to relief under the CWA and Iowa Code Chapter 455B, 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 Des Moines Water Works by the constitution and laws of the United States and the State of Iowa, and a deprivation of rights under color of law. JURISDICTION AND VENUE 15. This Court has jurisdiction in accordance with 33 U.S.C. § 1365(a) (action arises under the CWA’s citizen suit provision), 28 U.S.C. § 1331 (action raises a federal question under the laws of the United States); and 28 U.S.C. §§ 2201, 2202 (action requests declaratory and injunctive relief in a case of actual controversy), 28 U.S.C. § 1343(a) (action for the vindication of civil rights); 28 U.S.C. § 1367 (supplemental jurisdiction over claims that are part of the same case or controversy under Article III of the United States Constitution), 28 U.S.C. § 1651 (authorizing the district court to issue all writs necessary in aid of its jurisdiction); and 42 U.S.C. §§ 1981, 1983 (action for the vindication of civil rights). 16. Venue is proper in the United States District Court for the Northern District of Iowa, Western Division, pursuant to 28 U.S.C. § 1391 because all of the defendants are residents of the state where the district is located, and a substantial part of the events giving rise to the claims occurred there. 17. Filing in the Western Division of the Northern District is proper under 28 U.S.C. § 95 because Buena Vista and Sac counties are within the Western Division and a substantial 4 Case 5:15-cv-04020-DEO Document 2 Filed 03/16/15 Page 4 of 52 part of the events giving rise to the claims occurred there. 18. The unlawful discharge of pollutants by the Drainage Districts occurred in the United States District Court judicial district for the Northern District of Iowa and therefore venue is proper under the CWA, 33 U.S.C. §1365(c)(1). 19. Des Moines Water Works has provided the Drainage Districts with a Notice of the Intent to Sue (the “Notice”) for the violations alleged in this Complaint as required under 33 U.S.C. § 1365(b)(1)(A) and by Iowa Code § 455B.111(2). A copy of the Notice is attached as Exhibit 1. This Notice was sent to each of the Chairs of the Boards of Supervisors in Sac County, Calhoun County, and Buena Vista County, Iowa on January 9, 2015. Copies of the Notice were also mailed to the Administrator and Regional Administrator of the EPA and to the Iowa Department of Natural Resources. 20. More than sixty days have passed since the Notice was postmarked and mailed and based on information and belief the violations outlined in the Notice and alleged in this Complaint continue unabated and the Drainage Districts remain in violation of the CWA and Iowa Code Chapter 455B. 21. Neither the United States nor the State of Iowa has commenced or is diligently prosecuting a civil or criminal enforcement action to redress the asserted violations of 33 U.S.C. § 1365(b)(1)(B) and Iowa Code § 455B.111. 22. Des Moines Water Works has standing to assert the claims made herein in that it has a direct and pecuniary interest in the quality and purity of its source waters and it is directly injured by source water polluted by high levels of nitrate. PARTIES 23. Des Moines Water Works is a municipal water utility in Des Moines, Iowa 5 Case 5:15-cv-04020-DEO Document 2 Filed 03/16/15 Page 5 of 52 organized and acting under Iowa Code Chapter 388, which provides water service regionally in the Des Moines area. It is located at 2201 George Flagg Parkway, Des Moines, IA 50321. 24. Des Moines Water Works has the statutory power to be a party to a legal action under Iowa Code § 388.4. 25. Drainage Districts 32, 42, 65, 79, 81, 83, 86, and 2-51, 19-26, 64-105 are managed or jointly managed by the Sac County Board of Supervisors, Buena Vista County Board of Supervisors, and Calhoun County Board of Supervisors as trustees under Iowa Code Chapter 468.
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