U.S. District Judge Mark Bennett today asked the Iowa Supreme Court to rule on four key questions in Des Moines Water Works’ lawsuit against three northwest Iowa counties regarding nitrate pollution in the Raccoon River. 

It remains unclear how much, if at all, the action may delay the case, which will remain in the Northern District of Iowa in Sioux City. The trial date, at this point, remains set for Aug. 8.

After asking the two sides to compose questions about state law that were appropriate for the Iowa Supreme Court to decide, to clarify state law, Bennett noted in the order that there were good reasons for him to consider the counties’ contention that the questions already have answers from the court. The question was whether to “certify” questions for the state court.

“Although I agree with the defendants that the seven factor test I outlined (Hagan) probably weighs against certification (of the questions) in this case, I am going to certify it anyway. I would have to reject the thoughtful, creative, novel and well-argued positions of (Water Works), as unsupported by Iowa law and unlikely to be adopted by the Iowa Supreme Court, if I did not certify these questions,” Bennett wrote in a 26-page order issued Jan. 11. 

Bennett added that if he didn’t ask the Iowa Supreme Court to rule on the four questions, he would be be substituting his judgment for that of the Supreme Court.

“In light of the novelty of (Water Works’) state law arguments, the fact that this case is one of first impression, for either this court or the Iowa Supreme Court, and the public importance of this case, I believe that the interests of the parties and the public are best served by a definitive adjudication of these state law issues by the ultimate authority on them — the Iowa Supreme Court,” Bennett wrote. “Given the importance of these questions, I find no serious prejudice to the defendants by certifying these questions to the Iowa Supreme Court, despite their forceful resistance to certification.”

Water Works contends that Sac, Calhoun and Buena Vista counties — which run drainage districts in heavily agricultural areas — should be subject to federal clean water permit regulations and pay damages for heavy nitrate pollution in the Raccoon River. That stream is a key source of Central Iowa’s drinking water, and the utility has run a nitrate-removal system at the expense of ratepayers to deal with them. 

The four questions to be submitted to the Iowa Supreme Court are:

– “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?”

– “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?”

– “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?”

– “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?”