(CN) – Agricultural drainage districts that funnel nitrate-laden water into the Raccoon River, a main source of Des Moines drinking water, cannot be forced to pay any cleanup costs, the Iowa Supreme Court ruled Friday.
The City of Des Moines’ Board of Water Works Trustees is a water utility responsible for providing safe water to half a million residents in Des Moines, Iowa.
It sued three Iowa county supervisor boards in charge of more than a dozen drainage districts that drain agricultural runoff water into the Raccoon River, one if the waterworks’ primary sources of water, to recover its cost of removing nitrates from river water.
Nitrates are a primary ingredient found in fertilizer, and can have severe health risks if ingested, including blue baby syndrome and endocrine disruption.
From 1995 to 2014, nitrate concentrations in the river exceeded the allowable limit for nitrates in drinking water – and the problem has only gotten worse in more recent years, according to court records. Removing nitrates from the water costs the utility $4,000 to $7,000 per day, and the waterworks says it will need to build a new nitrate-removal facility, at a cost of $76 to 184 million, before 2020.
These measures ensure safe drinking water for city residents, but do nothing to clean up pollution in the river, where people swim and fish.
But the Iowa Supreme Court rejected the utility’s lawsuit Friday, finding that drainage districts qualify for immunity from all damage claims.
“Iowa Code section 455E.6 expressly immunizes farmers who comply with fertilizer label instructions from liability for nitrate contamination, including money damage claims or cleanup costs. We defer to the legislature whether to reassess that policy choice,” Justice Thomas Waterman said, writing for the five-judge panel.
Waterman acknowledged that attitudes towards pollution have changed over the years, but added that environmental tort suits are nothing new.
“With that statutory immunity for nitrate costs on the books, it is difficult to argue our precedents immunizing drainage districts should be overruled,” he wrote. “Indeed, because farmers are assessed for the costs of drainage districts, one might characterize state-law nitrate-based claims against drainage districts as a way to get backdoor relief against farmers that the legislature has specifically barred through the front door.”
The judge also cited the drainage districts’ unrebutted assertion that the city’s nitrate removal process adds only one cent per day to consumers’ water bills.
“It is for the legislature to decide whether to reallocate the costs of nitrate reduction,” the 41-page opinion states.
Justice Brent Appel wrote a lengthy partial dissent, separately joined by Chief Justice Mark Cady, saying the utility should be allowed to sue the drainage districts under the nuisance statute.
“Pollution of our streams is a wrong, irrespective of its source or its cause,” Cady said.
He urged the court to allow environmental law to develop in accordance with Iowans’ values.
“This state is blessed with fertile soil, vast expanses of teeming wilderness, and an overwhelming abundance of fresh water. The role and purpose of drainage districts in Iowa is important, but no more important than this state’s enduring role of good stewardship,” Cady continued. “This lawsuit serves to reinforce the critical balance at stake and asks the rhetorical question posited years ago by one of the founders of modern conservation, ‘What good is an undrained marsh anyhow?’ We should respond when this balance has shifted too far in either direction.”
Bill Stowe, CEO of Des Moines Water Works, told the Des Moines Register, “We’re disappointed, but not surprised. The court’s ruling today does nothing to clean up Iowa’s lakes, rivers and streams.”