September 15, 2016
Supreme Court Case is Key to Recouping Damages from Nitrate Pollution
By Grant Rodgers
In its water quality lawsuit, Des Moines Water Works is fighting a longstanding precedent protecting drainage districts from lawsuits.
Arguments in front of the Iowa Supreme Court on Wednesday could determine whether Des Moines Water Works can win financial damages for nitrate pollution flowing into the Raccoon River.
A ruling in favor of the central Iowa utility could significantly alter a century of legal precedent. For decades, agricultural drainage districts created to turn swampy, wet ground into valuable Iowa farmland have been protected from most lawsuits.
Unlike cities or counties, these quasi-governmental entities are set up at the request of landowners to perform a very specific task: Move water out of flat Iowa fields that can’t drain themselves naturally so that farmers can plant crops. A drainage district is “merely an area of land,” so it cannot be sued in civil court for monetary damages, the Iowa Supreme Court has ruled.
That longstanding precedent could be upended by Des Moines Water Works’ controversial federal lawsuit against drainage districts in three northwest Iowa counties.
The public utility that provides drinking water to 500,000 customers filed suit last year against drainage districts overseen by Sac, Calhoun and Buena Vista counties. It alleges the drainage districts’ tiling systems dump dangerous amounts of nitrate fertilizers into the Raccoon River, one of the utility’s main sources of water.
As part of the lawsuit, Des Moines Water Works hopes to win damages that could make up for the money it has spent removing nitrates from its water, a process the utility claims it spent $1.5 million on last year alone.
Why case is an ‘uphill battle’
Given this backdrop, some legal experts predict the public utility’s attorneys could face tough odds in swaying the justices to move away from the precedent that has protected the state’s approximately 3,000 drainage districts from having to pay such damages.
“They really do face an uphill battle of a very long, established history of Iowa case law that stands in contrast to these arguments that they’re making,” said Kristine Tidgren, an attorney at Iowa State University’s Center for Agricultural Law and Taxation.
Though the lawsuit was filed in federal court in the Northern District of Iowa, the seven justices will consider the arguments through a rare procedural move known as a “certified question” in which state supreme courts tackle questions about state law before a federal judge issues a decision. U.S. District Judge Mark Bennett asked the justices to step in after the three counties asked him to dismiss part of the lawsuit, claiming they should be immune from paying damages.
Regardless of the court’s decision, a main piece of the lawsuit asking for increased federal oversight of drainage districts will move forward. But winning monetary damages is an important part of the litigation, given the amount of money central Iowans have paid to clean dirty water that flows out of farm fields, Des Moines Water Works CEO Bill Stowe said.
“Our rate payers have paid literally tens of millions of dollars historically to clean up water that’s come through the drainage districts under the supervision of county supervisors,” said Stowe, who holds a law degree from Loyola University. “There’s a significant backward and forward looking piece to this issue. The backward-looking is the damages.”
Faced with rising nitrate levels in the early 1990s, the public utility spent $4.1 million to build the world’s largest ion exchange nitrate removal facility. Des Moines Water Works expects it will need an even bigger facility by 2020. That project could cost up to $183.5 million, the utility has alleged.
There is fear in the agricultural community that farmers will be on the hook to make payments if the Iowa Supreme Court rules that damages can be awarded, Tidgren said. When county supervisors lay new drainage tile or make repairs to districts under their control, those costs are normally assessed to the farmers. “I don’t really know why tort damages would be any different,” Tidgren said.
“‘If it did indeed prevail against all of those odds, it would be a very difficult judgment for Iowa farmers in particular to face,” she said.
Supreme Court upheld precedent in the past
The case law that gave drainage districts immunity developed at the outset of the 20th century. That was a different time when clearing water from fields was viewed by lawmakers and the court as protecting public welfare and health, Water Works and environmentalists have argued. Now the court should introduce some balance to the equation, recognizing the toll that drainage districts take on public health when nitrates run unchecked into the Raccoon River, said Josh Mandelbaum, a Des Moines staff attorney with the Environmental Law and Policy Center.
“That’s a really important issue, accounting for public health and the impact that water pollution can have on public health as part of this conversation,” he said. “That’s something that has never been before the court.”
Read More at http://www.desmoinesregister.com/story/news/crime-and-courts/2016/09/13/supreme-court-case-key-recouping-damages-nitrate-pollution/90260770/