February 17, 2017
Farmers in northwest Iowa, and all over the country, breathed a sigh of relief when a court confirmed they can’t be the bankroll to pay for ongoing water litigation.
In the bigger picture, it endorses exemptions provided to the agricultural community under the Clean Water Act and solidifies legal precedent in protecting farmers – and drainage districts – from being sued by those downstream.
The Iowa Supreme Court ruled that Des Moines Water Works cannot seek monetary and injunctive relief from upstream drainage districts on claims arising from the cost to remove nitrates from drinking water.
On March 16, 2015, DMWW filed suit against three Iowa drainage districts upstream from Des Moines, and their respective county boards of supervisors as trustees. Farmers all over the country watched to see if utility companies had the power to go after what was previously considered exempt.
The suit was filed in Federal District Court as a citizen enforcement action under CWA. The lawsuit also included state law claims including common law tort claims for nuisance, trespass and negligence. The DMWW compliant also included a claim that the drainage districts took DMWW property without just compensation.
“In short, all of the claims involve nitrate levels in the Raccoon River that DMWW must remove before it supplies drinking water to Des Moines residents. DMWW alleges that the nitrates in the river constitute pollution from farming via drainage of farmland by the districts,” explains Jonathan Coppess, assistant professor at the University of Illinois in an update on the lawsuit.
The Federal court submitted or "certified" four questions to the Iowa Supreme Court on the Iowa state law issues. This is a process by which the Federal court receives guidance from the Iowa Supreme Court on matters of Iowa law where there appears to be no Iowa legal precedent that controls or determines the issues.
“The key to the majority opinion is that 100 years of precedent has not been overturned and that Iowa farmers are allowed to use their productive farmland because the drainage districts have been in existence since the late 1800s,” says Gary Baise, lawyer for OFW Law. “The Court gives a good description of the drainage districts and their limited powers, but more importantly, the Court restrains itself by reviewing its precedent setting cases and by limiting judicial relief.”
The Court stated clearly, “Our cases have consistently held that a drainage district is not susceptible to suit for money damages. It has no corporate existence for that purpose.” The only time drainage districts can be sued is “…to compel, complete, or correct the performance of a duty or the exercise of a power by those acting on behalf of a drainage district.”
Not over yet
But this court battle isn’t over yet regarding whether farmers should be held accountable as point sources under the Clean Water Act.
The Iowa Supreme Court's decision on the four questions certified to it by the Federal District Court was a “significant victory for the drainage districts and a setback for DMWW,” Coppess says. The conclusions of the court, however, only applied to the state law claims. The court explicitly emphasized that its decision did not relate to the Federal claims under the Clean Water Act.
“As such, the Iowa Supreme Court's decision was a victory for the drainage districts but not a complete one,” Coppess says. “It remains to be seen how the Federal court will decide on the CWA claims and DMWW's novel argument that the drainage infrastructure constitutes a point source, removing it from the agricultural storm water exemption in the statute.”
It is expected that the federal court will issue its ruling on the pending motion for summary judgment as to the claims under the CWA in the very near future. If summary judgment is not granted, the case will go to trial, which is currently scheduled for June 26, 2017. However, upon receiving the Iowa Supreme Court’s opinion, Judge Strand ordered the parties to file a joint status report indicating their positions as to if and how further proceedings should be scheduled.
“Because the districts have no powers to redress the injuries alleged, DMWW has no case or controversy with these defendants that will permit them to maintain this action in this court,” notes Kristine Tidgren, assistant director for the Iowa State University Center for Agricultural Law and Taxation.
Baise challenges DMWW is left without any strong legal arguments.
“We all know water quality problems occur as a result of agricultural stormwater discharges. Congress, too, recognized that fact and wrote Section 319, Nonpoint Source Management Programs, to deal with agriculture’s runoff. Congress has specifically included in the CWA an exemption for agricultural stormwater runoff. DMWW with this lawsuit cannot change that fact,” he says.
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