Editor's Note: This story has been updated to correct the spelling of the last name of John Torbert.

CEDAR RAPIDS – Suggestions that drainage districts could be on the front line of efforts to mitigate nitrate pollution overstate their authority and likely would spur legal battles, according to the Iowa Drainage District Association.

Under Iowa law, drainage district funds only can be used for “the benefit of the district,” according to the association’s Executive Director John Torbert. The term is not defined in law, making a case that nitrate mitigation benefits the district would be a stretch “and would be open to legal challenge.”

Torbert was responding to a report earlier this week from the Iowa Policy Project that drainage districts “probably have the power and the obligation” to address ag-sourced nitrate pollution that threatens Iowa waters and is the primary cause for the hypoxic zone, or “Dead Zone,” at the mouth of the Mississippi River. Mitigating nitrate pollution would be a “public good,” according to the think tank’s researchers.

“If we’re going to start somewhere, we might as well start somewhere where we have the infrastructure in place to do something about it,” said IPP researcher Sarah Garvin. “We’re past the tipping point.”

However, Torbert believes drainage district trustees only have the authority spelled in state law and if statutes are silent on an issue – nitrate mitigation, for example, trustees cannot assume legal authority to act.

“This was specifically spelled out in the recent court decisions on the Des Moines Waterworks lawsuit” as well as U.S. District Court decisions that drainage districts do not have statutory authority to mandate water quality measures outlined in Iowa’s Nutrient Reduction Strategy, Torbert said.

The Iowa Supreme Court dismissed the case the Water Works brought against three northwest Iowa county boards of supervisors for nitrate contamination in the Raccoon and Des Moines Rivers.

Iowa Policy Project researchers believe that in his dissent in that case, Chief Justice Mark Cady seemed to suggest that drainage districts may have an existing responsibility to address water quality for the public good.

If drainage district law had been developed “with the thought that a drainage district could be a polluter,” Cady wrote, “I am convinced our law would have developed in a way that would have recognized a clear remedy.”

Torbert suggested the think tank researchers don’t understand drainage law. Drainage districts can assess costs back to landowners and can use eminent domain to complete projects, property owners’ assessments only can be spent for the “benefit of the district.” However, he added, drainage districts’ “sole purpose of existing is to drain excess water from the land.”

“So it is a legal stretch to assume that monies could be directed toward conservation projects (because) such projects would not ‘benefit the district’ in terms of its ability to drain water,” Torbert said.

Even if trustees can get past that legal hurdle, Torbert said landowners who question the projects – specifically the cost, could stop the projects through what is known as “remonstrance.”

Landowners are assessed based on the benefit they receive from being a part of a drainage district, Torbert explained. If it is determined a landowner is going to get 10 percent of the benefit of the district being formed, that landowner will be assessed 10 percent of the costs of repairs and improvements.

Remonstrance usually is used to stop projects that landowners perceive as being too expensive, he said.

In its legislative priorities, the drainage district association said it supports the state’s Nutrient Reduction Strategy and voluntary efforts to improve water quality.

It’s also supports “significant, consistent, and dependable funding,” such as the Iowa Water Land Legacy Fund that would capture three-eighths of a cent from the next state sales tax increase to fund water quality and outdoor recreation efforts. It’s estimated to raise $180 million a year.


Statehouse reporter for The Courier

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