By Todd Neeley
DTN Staff Reporter
OMAHA (DTN) -- Des Moines Water Works' nutrients lawsuit against 10 Iowa drainage districts may not go to bench trial as scheduled in August, as a federal judge in Iowa has submitted a list of legal questions to the state's Supreme Court that could determine the future of the lawsuit.
The lawsuit could have national ramifications on whether drainage districts are responsible for controlling nutrients runoff.
The defendants that include drainage districts and county officials in Buena Vista, Sac and Calhoun counties in the Raccoon River watershed, say in their motion filed this week the potential trial date should be delayed pending answers on a list of questions sent to the state's high court by the U.S. District Court for the District of Northern Iowa.
On Monday, the federal court certified a list of four questions submitted to the state's Supreme Court, addressing the legal responsibilities drainage may or may not have when it comes to nutrients pollution in state waters.
"The answers to these questions are critical to resolving the defendants' motion for partial summary judgment, which is currently pending before me," wrote U.S. District Judge Mark Bennett in a court document.
"Because this case may raise issues of first impression under Iowa law, that should, under the circumstances, be decided by the Iowa Supreme Court, I conclude that I should certify the following questions."
Bennett asks whether Iowa's doctrine of implied immunity of drainage districts grants those districts immunity from all damage claims and remedies coming from the allegations leveled by DMWW.
Bennett also questions whether state law allows the drainage districts to assert state constitutional protections, and whether DMWW has a property interest that may be the subject of a claim in the state's constitution -- all legal issues raised in the lawsuit.
In a brief in support of a motion to stay filed this week, the defendants said odds are the Supreme Court will not provide answers prior to the trial scheduled for Aug. 8, 2016.
"The likelihood of the court and parties receiving answers to the certified questions from the Iowa Supreme Court prior to that date is low," the defendants said. "Failure to impose a stay therefore might result in the parties trying the state law tort and equitable relief claims at the same time they are awaiting feedback from the Iowa Supreme Court regarding whether those claims are even viable."
NUTRIENTS LEVELS
DMWW has been battling elevated nutrients levels in source waters used for drinking water for some 500,000 customers. Those levels have spiked in times of heavy rains following drought conditions.
DMWW seeks monetary damages through federal law to help build new filtering technology at a price tag as high as $183 million.
Yet, even if nitrates are coming from predominantly agricultural land and running through treatment facilities, DMWW may have to climb a legal mountain to convince a court the drainage districts are liable for the runoff.
In the lawsuit, DMWW has pointed to an extensive system of drainage tiles that crisscross the drainage districts in the Raccoon River watershed and drain water and nitrogen. In part of the watersheds in the Raccoon River as much as 77% of the land is tile drained.
DMWW claims groundwater from tiles in those districts is a pollution point-source subject to the Clean Water Act.
Iowa law does not allow drainage districts to be sued for monetary damages. Districts can be sued only for not fulfilling their mission of building and maintaining drainage systems. One of the central legal questions likely to arise is whether securing water quality is part of the drainage districts' mission.
There's been only one similar case in U.S. history, according to Kristine Tidgren, staff attorney for the Center for Agricultural Law and Taxation at Iowa State University.
In 2013 a federal judge for the Eastern District of California ruled drain tiles were not point-sources for water pollution. A fishermen's association wanted a court to require a discharge permit for a grasslands bypass project. The plaintiffs argued unsuccessfully that an ag exemption for irrigation return flows didn't apply because tile runoff was coming from polluted groundwater.
Even if a court rules in Des Moines Water Works' favor, Tidgren said current law does not give drainage districts power to regulate land use, to dictate farming practices, to require buffer zones and other conservation measures, or to seek and obtain permits.
In addition, she said a successful lawsuit by the utility could require Iowa to create a whole new permitting system that currently doesn't exist for drainage districts.
Todd Neeley can be reached at todd.neeley@dtn.com
Follow him on Twitter @ToddNeeleyDTN
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