- Associated Press - Tuesday, January 12, 2016

DES MOINES, Iowa (AP) - A federal judge says the Iowa Supreme Court should settle several legal questions over whether farmland drainage districts can be held liable for downstream water pollution before a Des Moines water utility’s lawsuit can proceed.

The decades-old rules that govern drainage systems have largely been untouchable in the agriculture-heavy state. But attorneys for Des Moines Water Works say agriculture has changed dramatically in the last 100 years and the health implications of farm chemicals in water are clearer - justifying a fresh look by the courts.

The lawsuit filed last year by Des Moines Water Works alleges that three northwest Iowa counties that oversee 10 agricultural drainage districts should be required to obtain federal water pollution discharge permits because they release pollutants into rivers much like regulated factories.

The utility wanted U.S. District Judge Mark Bennett to ask the high court to clarify several things - such as immunity for drainage districts and whether the utility has a constitutional right to challenge the drainage districts. Attorneys for the agriculture drainage districts said Bennett should decide the case himself based on precedent.

Bennett, in a ruling filed Monday, said the novel legal issues presented in the case deserve the attention of the state’s highest court, citing public importance and the fact that many of the legal issues haven’t been directly decided by the state’s highest court or federal courts in Iowa.

For nearly a century, Iowa farmers have drained farmland to make it better for growing crops, often changing the landscape and sometimes sending pollutants - such as nitrates and phosphorous downstream. Nitrate in drinking water must be below 10 milligrams per liter to be considered safe by the Environmental Protection Agency. Anything above that level can be deadly to infants younger than 6 months because the chemical can reduce the amount of oxygen carried in their blood.

Citing cases from 1919 and 1940, the attorneys for the drainage districts said the high court has concluded there is nothing unconstitutional in allowing drainage systems to operate, even if they cause harm downstream.

“Because drainage districts’ existence and functions are so limited, Iowa’s Supreme Court repeatedly, for over a century, has found districts not amenable to suit for damages,” attorneys Charles Becker and Michael Reck said in court documents.

The water board attorneys argue that those cited cases were “borne of a different time, a product of a different culture, and utilized by a system far removed from today’s realities.”

Water Works is also seeking monetary damages. The utility spent $1.5 million last year to operate an expensive treatment system that removes excessive nitrate from water.

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