The Iowa Supreme Court heard arguments today about whether 10 drainage districts in northwest Iowa should keep their immunity from paying damages if the Des Moines Water Works is successful in a federal lawsuit over high nitrate levels in the Raccoon River.
Water Works attorney John Lande told the justices the granting drainage districts protection from liability is outdated. “This case is about responsibility for nitrate pollution in the Raccoon River,” Lande says. “The drainage districts claim they have no legal responsibility. But the physical and legal reality is that drainage districts own and operate government infrastructure that pollutes the drinking water of 500,000 central Iowans.”
Lande says the drainage districts in Sac, Calhoun and Buena Vista counties are no longer just removing water from the land, they are now posing a health concern by removing pollutants and putting them into the waterway. He says the drainage districts could make changes.
“The remedy in this case would be very similar to the remedy for a permit that drainage districts would be required to obtain. Which would involve objective metrics and measurements of their discharge of pollution and then efforts to mitigate that pollution,” Lande says.
Lande was asked what type of remedies the districts could use. “The drainage districts could change the way their ditches are structured. The could change their end of pipe infrastructure to stop water flowing during low-flow periods.There are a number of practices as a practical matter they drainage districts could implement that wouldn’t necessarily require the drainage districts to stop draining the land,” according to Lande. “Pollution does not have to be an inherent part of drainage in the same way that alteration of flow and moving water off the land has to be.”
Lande says the drainage districts could use a series of levies and assessments to pay for the changes. “And less there be any concern about subjecting drainage districts to large monetary sums — the principles of tort law that govern a case such as this would limit the exposure of any one drainage district to its percentage of contribution to the harm. And so, it’s not as though any one drainage district would be responsible for the entirety of a tort judgment, but they would be responsible for their percentage responsibility,” Lande says.
Attorney Michael Reck represents the drainage districts. He says the immunity for the districts has been upheld numerous times. “I can’t say it better than this court already did. A drainage district could not be subject to money judgment and tort under any state of facts. That’s what this court told us,” Reck says. “This is not some off-hand comment that was made once in the 75th page of some ruling.”
Justice Mark Appel questioned whether there should be a change. “You know maybe in 1900 this was right, sovereign immunity was very much alive then. Tell us why it still should prevail today,” Appel says.
Reck says one of the reasons is that lawmakers haven’t moved to make a change. “Because the legislature has left it in place. And if the legislature wanted to overturn this doctrine, they could have. Second, it needs to stay in place because this is not the proper procedure to bring up that particular question,” Reck says.
Reck says the way drainage districts work have not changed, they either increase water flow, or slow the water flow. “Theses entities — drainage districts — are merely vehicles for effectuating the will of the legislature. They don’t have power beyond what they are told to do,” according to Reck.
The Iowa Supreme Court will determine if the districts will have to pay damages if that is the outcome of the federal lawsuit. That lawsuit is expected to go to court in June of 2017.