POINT VS. NONPOINT: In part of the lawsuit, Des Moines Water Works claimed tile lines should be defined as point sources of pollution instead of nonpoint sources, which would require farmers to get permits for potential runoff. Because the suit was dismissed, no ruling was made on this matter.

Why court dismissed Water Works lawsuit

Federal judge says water quality problems are an issue for Iowa Legislature to resolve, not courts.

After two years and hundreds of thousands of dollars, the controversial lawsuit filed by the Des Moines Water Works board against drainage districts in three northwest Iowa counties has been dismissed by a federal court. The ruling was announced March 17. Originally filed in March 2015, this case has attracted national attention.

Federal Judge Leonard Strand dismissed all of the Water Work’s claims against the drainage districts in Sac, Buena Vista and Calhoun counties, determining that Iowa’s water quality problems are an issue for the Iowa Legislature to resolve, not the court system.

“The court was required to dismiss the lawsuit after finding that, even if the Des Moines Water Works was able to prove an injury, the drainage districts would have no ability to redress or remedy that injury. In other words, the drainage districts were not the proper defendants for this Clean Water Act lawsuit,” explains Kristine Tidgren. She is a staff attorney and assistant director at the Center for Agricultural Law and Taxation at Iowa State University.

Are drainage districts ‘point sources’?
The Des Moines utility sought to have drainage districts, and indirectly farmers, regulated under the federal Clean Water Act as a “point source” of pollution, much like businesses and manufacturing plants. The lawsuit claimed these three drainage districts are funneling high levels of nitrates into the Raccoon River, a source of drinking water for 500,000 central Iowa residents.

Now that the judge has tossed the suit out of court, Bill Stowe, chief executive officer of Des Moines Water Works, says the utility is determining its next course of action. “We are disappointed in the ruling and the court’s unwillingness to recognize the profound water quality impacts that pollution from drainage districts has on Iowa waterways,” says Stowe. He adds, “Since the ruling concluded that Des Moines Water Works could not bring this lawsuit, it doesn’t address whether agricultural drainage tile is a ‘point source’ as defined by the Clean Water Act.”

Strand sided with the Iowa Supreme Court, which ruled in January that the Water Works could not collect damages from the drainage districts to reimburse the utility for the cost of removing nitrates from water. Stowe said last year the Water Works needed to invest about $80 million to upgrade its aging equipment and facility to remove nitrates to meet federal drinking water standards. The utility spent $1.5 million in 2015 to run its nitrate removal equipment a record number of days to ensure safe drinking water.

Not authorized to dictate land-use practices
Iowa law on this was clear from the beginning, says Tidgren. The Supreme Court had long held that a drainage district is “merely an area of land, not an entity subject to a judgment for tort damages.” She adds, “The law recognizes that the sole purpose of the drainage district is to facilitate the construction and maintenance of a unified tile system. The drainage district trustees have no authority to act outside of their narrow responsibilities of creating and maintaining what is in most places a 100-year-old system. Thus, the courts have allowed lawsuits against these districts only where the claims implicate a specific statutorily granted power or duty granted to the district.”

In other words, a court can compel a drainage district to fix damaged drain tile. It’s difficult to see, however, how a court could order the drainage district to cease “all discharges of nitrate not authorized by a federal or state operating permit.” Tidgren says drainage district trustees attempting to take such actions by regulating farming practices or dictating land use would be acting outside of their statutory authority.

Des Moines Water Works acknowledged the Iowa law, but argued that it was outdated. The Water Works said this was a “new day” and the court should have applied a “new rule of liability and responsibility for drainage districts concerning pollution.” The Water Works urged that “implied immunity has survived through repetition rather than critical analysis.”

But the Iowa Supreme Court disagreed, ruling in late January that Iowa drainage districts are immune from claims of damages. The court said such districts have a “limited, targeted role — to facilitate drainage of farmland in order to make it more productive.” The court declared that it is up to the Iowa Legislature, not the courts, to change that result.

Water Works has 30 days to appeal
What’s next? Des Moines Water Works has 30 days to appeal the judge’s decision. Given the grounds upon which the suit was dismissed, it seems unlikely the 8th U.S. Circuit Court of Appeals would reverse this action, says Tidgren.

This lawsuit has brought increased attention to Iowa’s water quality issues. The Iowa Water Quality Initiative implementing the Iowa Nutrient Reduction Strategy has continued to gain traction since it was created in 2013. Today, legislation being proposed and discussed in the Iowa Legislature would establish a more comprehensive framework for funding water quality projects, although budget constraints may get in the way, notes Tidgren. More than $340 million in state and federal funds were directed to water quality programs in Iowa last year. Last week, 12 state legislators introduced a bill — the Water, Infrastructure, Soil for our Economy (WISE) water quality solution, that would fund water quality efforts through an increase in the state sales tax.

Keep up with new developments on this and other legal issues by visiting calt.iastate.edu.

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