In a big win for the agricultural community, the Iowa Supreme Court recently ruled against Des Moines Water Works (DMWW) in its state law claims against upstream drainage districts for nitrate pollution in the Raccoon River. See Bd. of Water Works Trs. of Des Moines v. SAC Cty. Bd. of Supervisors, No. 16-0076, 2017 WL 382402 (Iowa Jan. 27, 2017). The ruling instructs the federal court to dismiss DMWW’s state law claims (leaving only DMWW’s federal claims, which concern whether the districts should be regarded as ‘point sources’ under the Clean Water Act (CWA)). The ruling means that even if DMWW wins on its federal claims, DMWW—and thus the citizens who consume DMWW water—will have to foot the bill for any future nitrate processing.

Although there have been lawsuits in other states by private citizens against drainage districts,[1] this is a unique case by a public utility against multiple drainage districts. DMWW brought the case against the districts in federal court seeking money damages and equitable relief under theories including nuisance, negligence, and trespassing. DMWW alleges that the drainage districts are responsible for the increased nitrate levels in the river. DMWW sought to recover costs from the districts.

DMWW provides drinking water to an estimated half-million Iowans using water from the Raccoon River. The drainage districts, created by the Iowa Constitution, are tasked with maintaining farmland drainage systems that discharge nitrogen-laden runoff into the Raccoon River. Under the Safe Drinking Water Act (SDWA), DMWW must keep nitrate levels below the EPA-promulgated level. However, DMWW alleges that farmland runoff has consistently caused the nitrate levels to exceed the EPA level, requiring DMWW to process the water to comply with the SDWA. The processing required DMWW to use a special facility continuously for 96 days, which cost $4,000–$7,000 per day. DMWW also alleges it will need to construct a new processing facility at a cost of $76–183.5 million before 2020.

The drainage districts filed a motion for summary judgment on the state law claims, arguing immunity under Iowa law. The Iowa Supreme Court answered several certified questions relating to the state law claims, including whether Iowa law grants the districts immunity from the damages and equitable relief claims, and whether DMWW can assert constitutional claims.

The Iowa Supreme Court found that the cases in other states have consistently held that drainage districts cannot be sued for money damages because districts are entities with limited powers. The court held that districts are also immune from equitable relief other than a court order to perform their statutory duty to maintain their drainage systems. Finally, the court noted that political subdivisions, including public utilities, cannot bring constitutional challenges.

The court found for the drainage districts on every certified question, leaving DMWW to proceed with only its CWA claim. While the federal court may still find that the districts are a “point source” under the CWA, DMWW will not be able to recover its costs associated with processing out excess nitrates in the water.

The chief justice (who concurred in part and dissented in part) left open the possibility of revisiting the immunity issue, noting that while agriculture is important, so is the state’s role as a good environmental steward. Still, the majority holding represents a protection for agriculture and could encourage other agriculturally focused states to similarly place the responsibility for water quality on the public utility rather than on drainage districts.

[1] See, e.g., Roark v. Macoupin Creek Drainage Dist., 738 N.E.2d 574, 579–80 (Ill. App. Ct. 2000); Gerbers, Ltd. v. Wells Cty. Drainage Bd., 608 N.E.2d 997, 998, 1000 (Ind. Ct. App. 1993); Dougan v. Rossville Drainage Dist., 757 P.2d 272, 279 (Kan. 1988); Lezina v. Fourth Jefferson Drainage Dist., 190 So. 2d 97, 100 (La. Ct. App. 1966); Landview Landscaping, Inc. v. Minnehaha Creek Watershed Dist., 569 N.W.2d 237, 240 (Minn. Ct. App. 1997); Parriott v. Drainage Dist. No. 6, 410 N.W.2d 97, 99–100 (Neb. 1987); Kilburn v. Fort Bend Cty. Drainage Dist., 411 S.W.3d 33, 36–37 (Tex. App. 2013).