Last week, the Iowa Supreme Court issued a decision in a case concerning drainage from farmland upstream that allegedly increased nitrates in the Raccoon River beyond the acceptable drinking water level, causing the water supplier to incur costs of treatment. In answering four state law questions certified to it, the Iowa Supreme Court sided with the drainage districts. [Read full opinion here.]
The Board of Water Works Trustees for the City of Des Moines Iowa (aka Des Moines Water Works and “DMWW”) is a municipal waterworks that provides drinking water to Central Iowa residents. Their water primarily comes from the Racoon and Des Moines Rivers. In providing water, they must comply with certain EPA standards, including a limit for nitrate of 10 mg/L.
Upstream along the Racoon river is farmland. Much of the land if flat and requires drainage in order to be farmed. Thus, Iowa created several drainage districts to assist in helping manage drainage from farm fields. In many of the upstream districts, subsurface tiles are used to convey water to other subsurface tiles and into pipes, subsurface ditches, and channels that eventually transport the water from the fields into the Raccoon River.
DMWW filed suit against several upstream drainage districts, claiming that the release of nitrates from farm fields into the Raccoon River upstream resulted in a nitrate level in the Racoon River that was over the 10 mg/L limit about 1/4 of the time between 1995-2014. Due to the excessive nitrates in the water, DMWW has been forced to use a variety of treatment and blending techniques to reduce nitrates to the approved level. They estimate the need to build new, updated treatment facilities in the near future due to the increased amount of nitrogen in the river. They set forth 10 causes of action including a violation of the Clean Water Act, nuisance, trespass, negligence, takings, and various other constitutional claims.
The lawsuit was filed in federal court. During the proceedings, the federal court sent four certified questions to the Iowa Supreme Court. Essentially, a certified question is the federal court asking to Iowa Supreme Court to make a ruling on Iowa-specific law that will impact the ultimate decision on the federal issues in the case. Last week, the Iowa Supreme Court answered each of the four certified questions in favor of the drainage districts.
Iowa Supreme Court Decision
The Iowa Supreme Court held as follows:
(1) The Iowa drainage districts are immune from suits for monetary damages. Under Iowa law, they are created for a very limited purpose and have been granted immunity for over 100 years. Similarly, districts are immune from equitable relief (such as a claim for an injunction). Instead, the proper remedy if one feels the district is violating their duties is to seek mandamus–essentially an order by a court compelling a government agency to take a certain action. The Supreme Court gave an example of a past case where mandamus relief was granted when a drain had been completed but was not adequately maintained or repaired.
(2) With regard to the constitutional claims against the drainage districts, such as violation of due process, equal protection, and takings, the court found that these clauses are designed to protect citizens–not other government agencies–from over-reaching governmental action. Here, the DMWW is one subdivision of the state and the drainage districts are another, so the constitutional protections simply do not apply. “It makes sense to limit litigation between public entities because the people of Iowa foot the bill for both sides.”
(3) Even if the constitutional protections did apply to DMWW, the court noted that DMWW’s increased need to treat nitrates in the river water would not constitute a constitutional violation and there was no property interest being taken. The DMWW was not denied access to the river, it simply must spend more money on nitrate removal. No cases were cited that allowed presence of nitrates in water to support a takings claim.
There were two additional opinions filed concurring in part and dissenting in part to the majority opinion. These Justices would have allowed suits for monetary damages and equitable relief against the drainage districts, would have permitted a Constitutional taking claim but not any of the other Constitutional claims, and would have required further factual development to determine if a property right existed to support a takings claim.
Why Do We Care?
Honestly, the decisions by the Iowa Supreme Court interpreting Iowa law are likely not hugely important on those of us in other states. Although if similar issues were to arise in other states, this decision could be persuasive authority.
However, extremely important is an issue not addressed by the Iowa Supreme Court, are the drainage districts committing a violation of the Clean Water Act? This federal issue remains at play in the lawsuit and could have major ramifications on landowners across the country. DMWW claims that the drainage should be considered a point source pollutant that is regulated by the Clean Water Act. The drainage districts, on the other hand, argue that the water falls under the agricultural stormwater exception to the Clean Water Act, and, therefore, federal jurisdiction does not exist. [Read more about the basics of the Clean Water Act here.]
The federal court will likely address a number of issues related to the Clean Water Act. Are nitrates resulting from application of nitrogen fertilizer considered “pollutant?” Is the tile drainage system a “point source?” Is the water removed “agricultural stormwater runoff?” And, last but not least, what about the fact that the water removed from the fields is not surface water governed by the Clean Water Act, but actually groundwater, to which the Act does not apply?
A decision on this case could have nation-wide impacts with regard to the application and interpretation of the Clean Water Act and agriculture. Currently, trial on this issue is slated to occur in June.