The Iowa Supreme Court will be weighing in on legal questions that could be critical in deciding the Des Moines Water Works lawsuit against drainage districts in three northwest Iowa counties. Federal Judge Mark Bennett filed an order on January 11 to send four key questions to the Iowa Supreme Court. Bennett says he needs legal answers from the high court before he can rule on the request from attorney’s representing drainage districts in Sac, Buena Vista and Calhoun counties. The attorneys want him to dismiss part of the complaints in the lawsuit. Bennet is scheduled to hear the Water Works lawsuit this coming August.

WATER WOES: The Des Moines Water Works is suing drainage districts in three counties in northwest Iowa over high levels of nitrates in the Raccoon River. The lawsuit says field tiles are funneling nitrates from farm fields into the river, and the drainage districts should be liable for damages. The Iowa Supreme Court is being asked to help decide.

Can drainage districts be held liable for high nitrates in water?
The order filed by Bennett requires the state Supreme Court to determine whether the 10 drainage districts in the three northwest Iowa counties are immune from damages and can’t be forced to pay the utility’s costs to remove excess nitrates from Des Moines’ drinking water supply. Bennett wrote in his request, “I believe the interests of the parties and the public are best served” with rulings from the Iowa Supreme Court.

The Des Moines Water Works lawsuit was filed nearly a year ago. It alleges the drainage districts in the three northwest Iowa counties act as conduits that enable high levels of nitrates to move from farm fields into the Raccoon River, a major source of drinking water for 500,000 Des Moines metro area residents. Lawyers representing the drainage districts in the counties named in the lawsuit say the districts are immune from being sued for damages. County boards of supervisors oversee drainage districts in counties in Iowa, so it is the county supervisors who are actually being sued.

What does this request for a Supreme Court ruling mean?
“The Iowa Supreme Court will pretty much decide if these claims are dismissed or moved forward,” says Kristine Tidgren, staff attorney at the Center for Agricultural Law and Taxation at Iowa State University. She is a contributing author for Wallaces Farmer, writing an article on legal topics each month in the magazine. The Supreme Court’s ruling could decide if the Des Moines Water Works can seek damages, says Tidgren.

Bill Stowe, general manager of the Des Moines Water Works, says the utility spent about $1.5 million last year to remove nitrates from the water supply that exceed federal drinking water standards. He also says the utility will need to build a larger nitrate removal facility over the next four years which could cost up to $184 million. As part of the lawsuit, Des Moines Water Works is seeking to have the drainage districts, and indirectly farmers, regulated by the federal government. The questions sent to the Iowa Supreme Court by Bennett don’t include the parts of the lawsuit that seek federal oversight of the drainage districts under the U.S. Clean Water Act, says Tidgren.

~~~PAGE_BREAK_HERE~~~

Drainage districts say they are immune from damages
Attorneys for the drainage districts argue against sending the questions to the state Supreme Court, saying the precedent in such legal cases clearly says drainage districts are immune from damages. The drainage districts were originally formed only to oversee drainage improvements and maintenance. The districts have “only such limited power as the Legislature grants them,” Bennett wrote in regard to the district attorneys’ stand. “Therefore, they argue the defendants aren’t a proper party to this lawsuit, and this is a debate that needs to be had with the Iowa Legislature.”

Among its arguments, Des Moines Water Works says immunity for drainage districts “is no longer good law and should be changed.” Water Works general manager Bill Stowe supports Bennett sending the order to the Iowa Supreme Court. Stowe thinks it’s a good idea to get the Supreme Court to rule on these key questions. “What we’re most happy about,” says Stowe, “is the federal judge didn’t accept the defendants’ argument that we have no basis for damages under state law.” Stowe adds, “We think the idea that drainage districts should be free from responsibility for downstream damages without any accountability is not consistent with state law, nor is it good public policy.”

Task force recommendations on how to improve water quality
In another significant development last week, a task force designated to find solutions to Iowa’s water quality problems issued its report on Friday, January 15. The Greater Des Moines Partnership’s water quality task force says the state should offer low interest loans or grants to farmers and landowners, and tie those incentives to conservation practices that would help clean up the state’s streams and rivers.

That recommendation is one of several released in the report by the task force of business, farm and environmental leaders. “These recommendations will put Iowa in the needed direction for improving water quality,” says Ralph Rosenberg, executive director of the Iowa Environmental Council and a member of the task force. Other key recommendations from the Greater Des Moines Partnership’s water quality task force call for creating:

* Watershed management authorities that would develop plans in local areas across the state for improving Iowa’s water quality, controlling erosion and improving soil health. Members of these authorities could include farmers, landowners, drainage districts, cities, counties and other groups.

* A deadline of 2030 to meet the goals of the Iowa Nutrient Reduction Strategy. The statewide nutrient reduction strategy is a voluntary plan that’s only been in effect for a little over two years now. It is designed to reduce the amount of nitrogen and phosphorus in streams and rivers, the two nutrients which are contributing to the “dead zone” in the Gulf of Mexico. The Iowa Nutrient Reduction Strategy is often criticized by environmental groups and by Water Works officials because it is voluntary, and because it fails to have a deadline for achieving its goals for water quality improvement. The nutrient reduction strategy seeks to reduce the amount of these two nutrients in Iowa’s lakes, streams and rivers by 45%, coming from both rural and urban sources.

~~~PAGE_BREAK_HERE~~~

Fund water quality efforts from growth in tax revenue?
The task force recommendations come on the heels of an announcement by Iowa Gov. Terry Branstad earlier this month, as he released his controversial legislative proposal to boost water quality efforts. Branstad wants to increase the amount of state cost-share and water quality program money available for farmers and landowners, as an incentive to get them to plant more Iowa acres to cover crops, and install more grass waterways, stream buffers and expensive edge of field practices such as bioreactors.

Branstad’s plan would start in 2017 and by the year 2049 would pump as much as $4.7 billion into water quality efforts and cost-sharing with farmers, he says. He would find the money to do this by extending for another 20 years a 1-cent sales tax that currently funds infrastructure improvements for K through 12 public schools. The 1-cent sales tax is set to expire in 2029. His plan would extend it to 2049 and would divert some of the revenue to water quality efforts. Schools would be guaranteed the money they currently receive from the tax, plus a $10 million annual increase in funding, says Branstad. Any revenue growth exceeding that $10 million per year would go to water quality projects.

This plan assumes a 2.85% annual growth in sales tax revenue, which Branstad says the state has had between 2009 and 2016. But Democrats in the legislature and environmental leaders are worried the proposal would pit two worthy priorities, education and water quality, against each other. Branstad takes issue with the notion that his plan would divert money away from schools. “I can’t see how you can call it a diversion when schools are going to get $10 million more guaranteed every year, plus a 20-year extension,” he says. “The schools would be sharing a portion of the growth.”

Other proposals will also be considered by Iowa Legislature
Several other proposals have also emerged for discussion in the 2016 Iowa Legislature on how to increase funding for the water quality protection strategies outlined in the statewide Iowa Nutrient Reduction Plan. For example, some environmental groups support establishing a three-eighths of a cent sales tax in Iowa that would support the state’s Natural Resources and Outdoor Recreation Trust Fund. The Iowa Legislature passed a measure several years ago allowing this trust fund to be established, but has never provided the funding for it.

To read the Greater Des Moines Partnership task force’s complete list of recommendations released January 15 for improving Iowa’s water quality, click on Download the Iowa Soil and Water Future Task Force Recommendations.