View this article online: https://www.insurancejournal.com/news/midwest/2016/09/16/426764.htm
The Iowa Supreme Court heard arguments and must now decide whether to weigh in on a federal lawsuit that pits the water supplier to 500,000 central Iowa residents against upstream farmers accused of contaminating rivers with nitrates from crop fertilizer.
The case was filed by Des Moines Water Works, which is asking the court to decide whether agriculture drainage districts have immunity from lawsuits and whether the water utility can seek monetary damages.
Water Works says it spent $1.5 million last year alone to remove nitrate from water to meet federal health standards. The utility draws water from the Raccoon and Skunk rivers, which have sometimes in recent years exceeded the 10 milligrams per liter considered safe to drink by the Environmental Protection Agency.
Water Works sued three northwest Iowa counties that oversee 10 agricultural drainage districts. The lawsuit is seeking to overturn a century of legal precedent that has protected the drainage systems from lawsuits.
But this is the first time the courts have had to consider the public health impact of pollution sent downstream by the drainage systems, said Des Moines Water Works attorney John Lande.
He said drainage districts basically exist for the good of public health and welfare. He said that is inconsistent when the water sent downstream at times carries nitrate levels four times the EPA limit.
“They don’t have to pollute in order to drain the land,” he said. “That’s the point Des Moines Water Works claims in this case.”
Justice Brent Appel acknowledged Iowa’s long history of protecting drainage systems, but he asked whether it continues to be the right approach today when views of liability have changed.
“It’s right because you told us it’s right,” said Michael Reck, an attorney representing the counties.
Reck pointed to several cases in which the court upheld legal immunity for drainage districts. He also said the Iowa Legislature could have changed laws protecting the districts but has not.
The lawsuit is filed in U.S. District Court in Des Moines. In January, Judge Mark Bennett agreed to ask the Iowa Supreme Court to clarify state law questions including drainage district immunity.
Besides seeking monetary damages, Water Works also wants the drainage districts to be forced to comply with federal Clean Water Act standards, which could require permits, monitoring of the water coming out of the drainage pipes and efforts to limit contaminants released.
Even if the state Supreme Court determines the districts cannot be sued for monetary damages, the federal regulatory portion of the lawsuit could move forward.
The lawsuit has farm groups worried. The Iowa Farm Bureau Federation and the state associations for corn and soybean growers have offered to help pay the legal bills of the three counties being sued — Buena Vista, Calhoun and Sac.
The case also has prompted the Iowa Legislature to consider funding conservation practices that could help minimize the loss of nutrients from farmland. A proposal that Gov. Terry Branstad backed last year would defer a portion of a tax that school districts use for building maintenance for water quality projects, but it failed to move forward. A plan to approve a 3/8-cent sales tax that would generate about $150 million a year for water quality initiatives also didn’t advance.
The 3/8-cent sales tax proposal could surface again this year, but passing a tax increase in a highly partisan election year will likely be difficult.
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