Bd. of Water Works Trs. of Des Moines v. Sac Cnty. Bd. of Supervisors

• Citation: 890 N.W.2d 50
• Decision Date: 27 January 2017
• Docket Number: No. 16-0076,16-0076
• Parties: BOARD OF WATER WORKS TRUSTEES OF the CITY OF DES MOINES, Iowa, Appellant, v. SAC COUNTY BOARD OF SUPERVISORS, as Trustee of Drainage Districts 32, 42, 65, 79, 81, 83, 86, and Calhoun County Board of Supervisors and Sac County Board of Supervisors as Joint Trustees of Drainage Districts 2 and 51 and Buena Vista County Board of Supervisors and Sac County Board of Supervisors as Joint Trustees of Drainage Districts 19 and 26 and Drainage Districts 64 and 105, Appellees.
• Court: United States State Supreme Court of Iowa

890 N.W.2d 50

BOARD OF WATER WORKS TRUSTEES OF the CITY OF DES MOINES, Iowa, Appellant,

v.SAC COUNTY BOARD OF SUPERVISORS, as Trustee of Drainage Districts 32, 42, 65, 79, 81, 83, 86, and Calhoun County Board of Supervisors and Sac County Board of Supervisors as Joint Trustees of Drainage Districts 2 and 51 and Buena Vista County Board of Supervisors and Sac County Board of Supervisors as Joint Trustees of Drainage Districts 19 and 26 and Drainage Districts 64 and 105, Appellees.

No. 16-0076

Supreme Court of Iowa.

Filed January 27, 2017

John E. Lande, Richard A. Malm, and Colleen MacRae (until withdrawal) of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellant.

Michael R. Reck, Charles F. Becker, and Stephen H. Locher of Belin McCormick, P.C., Des Moines, and David Y. Chung of Crowell & Moring LLP, Washington, D.C., for appellees.

James W. Carney of Carney & Appleby, PLC, Des Moines, for amicus curiae Iowa Drainage District Association.

Joshua T. Mandelbaum of Environmental Law & Policy Center, Des Moines, for amicus curiae Environmental Law & Policy Center.

WATERMAN, Justice.

This high-profile litigation pits one political subdivision of the State of Iowa against several other political subdivisions. The plaintiff is a municipal waterworks; the defendants are upstream drainage districts and their trustees. The plaintiff provides drinking water to central Iowans and is suing for money damages and other remedies to recover its costs to remove nitrates from Raccoon River water. The case was brought in federal court. Our role is simply to answer the following questions of Iowa law certified by that court.

Question 1: As a matter of Iowa law, does the doctrine of implied immunity of drainage districts as applied in cases such as Fisher v. Dallas County , 369 N.W.2d 426 (Iowa 1985), grant drainage districts unqualified immunity from all of the damage claims set forth in the complaint (docket no. 2)?

Answer: Yes. As explained below, drainage districts have a limited, targeted role—to facilitate the drainage of farmland in order to make it more productive. Accordingly, Iowa law has immunized drainage districts from damages claims for over a century. This immunity was reaffirmed unanimously by our court just over four years ago.

Question 2: As a matter of Iowa law, does the doctrine of implied immunity grant drainage districts unqualified immunity from equitable remedies and claims other than mandamus?

Answer: Yes. Again, Iowa precedent, reaffirmed unanimously by our court just four years ago, recognizes that drainage districts are immune from injunctive relief claims other than mandamus.

Question 3: As a matter of Iowa law, can the plaintiff assert protections afforded by the Iowa Constitution's inalienable rights, due process, equal protection, and takings clauses against drainage districts as alleged in the complaint?

Answer: No. Although these constitutional clauses are fundamental to our freedom in Iowa, they exist to protect citizens against overreaching government. Generally, one subdivision of state government cannot sue another subdivision of state government under these clauses. And even if they could, an increased need to treat nitrates drawn from river water to meet standards for kitchen tap water would not amount to a constitutional violation.

Question 4: As a matter of Iowa law, does the plaintiff have a property interest that may be the subject of a claim under the Iowa Constitution's takings clause as alleged in the complaint?

Answer: No, for the reasons discussed in the answer to Question 3.

In the balance of this opinion, we will explain our reasoning behind these answers. We emphasize that our decision does not relate to other matters raised in the federal court litigation, including claims brought under federal law.

I. Background Facts and Proceedings.

To provide context for the certified questions, we adopt this discussion from the federal court's certification order. See Foley v. Argosy Gaming Co., 688 N.W.2d 244, 246 (Iowa 2004) ("We restrict our discussion to the facts provided with the certified questions.").¹

A. The Des Moines Water Works. Plaintiff, the Board of Water Works Trustees of the City of Des Moines, Iowa, also known as the Des Moines Water Works (DMWW), is a municipal water utility under Iowa Code chapter 388 (2015)² that provides drinking water to an estimated half-million Iowans in the Des Moines area, both by direct service and wholesale service to other utilities and districts. DMWW obtains its water primarily from the Raccoon and Des Moines Rivers. The Raccoon River drains about 2.3 million acres from portions of seventeen Iowa counties, including Buena Vista, Sac, and Calhoun. It flows approximately 186 miles from its origin in Buena Vista County to its confluence with the Des Moines River, south of downtown Des Moines.

Under the Safe Drinking Water Act (SDWA) as amended in 1996, 42 U.S.C. §§ 300f –300j (2012), DMWW is obligated to meet the maximum contaminant level standards set by the Environmental Protection Agency (EPA) in the water it serves to consumers. The SDWA is the key federal law for protecting public water supplies from harmful contaminants. Section 300g–1, as amended in 1996, directs the EPA to select contaminants for regulatory consideration based on occurrence, health effects, and meaningful opportunity for health risk reduction. 42 U.S.C. § 300g–1(b). For each contaminant that the EPA determines requires regulation, the EPA must set a nonenforceable maximum contaminant level goal at a level that avoids known or anticipated adverse health effects and that allows an adequate margin of safety. Id. § 300g–1(b)(4)(A). The EPA must then set an enforceable standard, a maximum contaminant level (MCL), as close to the goal as is feasible, using the best technology, treatment techniques, or other means available and taking costs into consideration. Id. § 300g–1(b)(4)(B). The maximum contaminant level for nitrate, promulgated in 2012 and currently in force, is 10 mg/L, close to the equivalent of ten parts per million. See EPA, Table of Regulated Drinking Water Contaminants, http://www.epa.gov/ground-water-and-drinking-water/table-regulated-drinking-water-contaminants (last visited Jan. 12, 2017). Nitrate is a soluble ion of nitrogen, found in soil, which only leaves the soil when drawn out by the flow of water. See id. The health risks associated with nitrate contamination in drinking water include blue baby syndrome and potential endocrine disruption impacts. Id.

In its complaint filed in federal court, DMWW states that from 1995 to 2014, nitrate concentrations in the Raccoon River at the DMWW intake points exceeded the 10 mg/L standard for drinking water at least 1636 days, or twenty-four percent of the time. In 2013 and 2014, the average nitrate concentration in the Des Moines and Raccoon Rivers was 11.98 mg/L, the third highest average in the last forty years. Similarly, in September, October, November, and December 2014, the average nitrate concentration was 11.89 mg/L, 13.23 mg/L, 13.43 mg/L, and 12.56 mg/L, respectively.

DMWW states that it utilizes three water treatment plants to process source water into drinking water. These three treatment plants, the McMullen Plant, the Saylorville Plant, and the Fleur Plant, all draw water from the Raccoon River. DMWW has managed excess nitrates in the source water it processes in several ways. At the Fleur Plant, a fraction of the water undergoes an ion exchange process to remove nitrates and then is blended with filtered water to stay below the EPA's 10 mg/L standard. In addition to drawing water from the Raccoon River, the McMullen Plant draws water from Crystal Lake, a river-influenced surface water source managed to provide reduced-nitrogen water through natural biologic processes. DMWW also can blend the water from the McMullen Plant with nitrate-free water drawn from a reservoir used as an emergency backup water source. The Saylorville Plant is the only plant operated by DMWW that has a limited capacity to remove nitrates.

Additionally, DMWW has an ion exchange nitrate-removal facility that it operates as needed at a cost of approximately $4000–$7000 per day.³ DMWW utilized its nitrate removal continuously due to excessive nitrate levels until March 10, 2015. The continuous operation for a total of ninety-six days is the longest in the history of the facility's operation during the winter season. DMWW states that, due to the age and limited capacity of the existing nitrate-removal facility, it will need to design and construct a new nitrate-removal facility with a fifty-million-gallon-per-day capacity at a cost of between $76 million and $183.5 million before 2020. Operation and maintenance costs will be in addition to the initial estimated capital cost.

B. The Drainage Districts. Drainage districts were instituted in Iowa to allow wetlands to be turned into productive farmland. The purpose of drainage districts in Iowa can be traced back to the late 1800s and early 1900s. See Swamp Land Act of 1850, ch. 84, 9 Stat. 519 (codified at 43 U.S.C. §§ 982 –984 (2012) ); Hatch, Holbrook & Co. v. Pottawattamie County , 43 Iowa 442 (1876) ; Iowa Const. art. I, § 18 (as amended in 1908). Vast areas of flatland could not be farmed due to inadequate drainage. Iowa Code chapter 468 and Iowa Constitution article I, section 18 govern drainage districts. Drainage districts enable property owners to jointly fund drainage improvements. See Fisher , 369 N.W.2d at 428–29.

The right of a landowner to place tiles in swales or ditches to carry the water from ponds upon and onto lower lands ... is necessary ... in order that low and swampy lands may be reclaimed, and a denial thereof would be productive of incalculable mischief.

Dorr v. Simmerson , 127 Iowa 551, 553, 103 N.W. 806, 807 (1905). To establish a drainage district, at least two landowners must petition for its creation. Iowa Code § 468.6. The affairs of the drainage district are then...