News Feature | November 16, 2015

Iowa Utility Wages Legal Battle Against Nitrate Runoff

Sara Jerome

By Sara Jerome,

An Iowa water utility is pursuing a novel strategy in the battle against nitrates by taking drainage districts to court. In the latest round of legal fire, the sides disagree about whether the suit can go before a judge.

Des Moines Water Works “is suing 16 rural counties and drainage districts for contaminating one of the state's major sources of drinking water. Drainage districts were created in Iowa in the 19th century to create farmland out of wetlands and have been held immune from suits since that time as a benefit to public health and welfare,” Reuters reported.

Attorneys for the drainage districts say the utility cannot seek damages “given the districts' limited power to assess taxes against property owners,” The Des Moines Register reported.

Districts "do not have the power to direct landowners' use or management of their properties," the attorneys wrote. "Much like the builder of a highway does not control what travels over that highway, drainage districts do not control what goes through drainage tiles.”

Attorneys for Des Moines Water Works say “implied immunity” is “ripe for reconsideration.” Some highlights from its arguments: “The utility's attorneys from Dickinson, Mackaman, Tyler & Hagen in Des Moines said denying the agency damages violates its equal protection and due process rights by ‘depriving all those downstream … of any effective redress for wrongs,’” the report said.

One thing is clear to many farmers and utilities alike: Nitrate levels are up in Des Moines. “An agribusiness group said [in November] that data from more than half of 45 water monitoring sites on the Raccoon River show the highest average nitrate levels in 10 years of data collections,” The Des Moines Register reported.