Donnelle Eller

deller@dmreg.com

The Iowa Supreme Court will weigh in on legal questions that could be crucial in deciding whether Des Moines Water Works can seek damages from drainage districts in three north Iowa counties for nitrate-laden drinking water.

Federal Judge Mark Bennett filed an order Monday sending the questions to the Iowa Supreme Court, given the case's state importance and "the novelty" of the utility's legal arguments.

"I believe that the interests of the parties and the public are best served" with rulings from the Iowa Supreme Court, Bennett wrote.

The judge said he needs the legal answers before he can rule on a request from the drainage districts in Sac, Buena Vista and Calhoun counties to dismiss part of the complaints in the Des Moines utility's lawsuit.

The order requires the state Supreme Court to weigh whether 10 drainage districts are immune from damages and cannot be forced to pay the utility's costs to remove excess nitrates.

"The Iowa Supreme Court will pretty much decide if these claims are dismissed or move forward," said Kristine Tidgren, an attorney at Iowa State University's Center for Agricultural Law and Taxation.

The Des Moines utility's lawsuit, filed nearly a year ago, alleges that the north Iowa drainage districts act as conduits that enable high levels of nitrates to move from farm fields into the Raccoon River, one of two sources of drinking water for 500,000 metro area residents.

Iowa counties: Water Works lawsuit is all wet

The utility says it spent about $1.5 million last year to remove nitrates that exceed federal drinking water standards. The utility also says it will need to build a larger nitrate removal plant over the next four years that could cost up to $184 million.

Des Moines Water Works seeks to have the drainage districts, and indirectly farmers, regulated by the federal government.

The questions sent to the state Supreme Court don't include parts of Des Moines Water Works' lawsuit that seek federal oversight of the drainage districts under the U.S. Clean Water Act, Tidgren said.

The drainage districts' attorneys argued against sending the questions to the state high court, saying the case precedent clearly says drainage districts are immune from damages.

The drainage districts, formed only to oversee drainage improvements and maintenance, "have only such limited power as the Legislature grants them," Bennett wrote about the drainage district attorneys' stand. "Therefore, they argue, the defendants are not a proper party to this suit, and this is a debate to be had with the Iowa Legislature."

Des Moines Water Works says, among its arguments, that immunity for drainage districts "is no longer good law and should be changed."

Bill Stowe, Des Moines Water Works' CEO, welcomed Bennett's order.

"What we're really happy about is that the federal judge didn't accept the defendants' argument that we have no basis … for damages under state law," he said.

"We think the idea that the drainage districts should have a free drop to downstream damages without any accountability is not consistent with state law or good public policy," Stowe said.

Bennett is slated to hear the Water Works lawsuit in August.