The term “flogging a dead horse” means to continue a particular endeavor that is a waste of time as the outcome is already decided. This term is appropriate for the recently publicized Iowa Policy Project (“IPP”) report finding that “drainage districts have the legal authority to enhance pollution control efforts.” To anyone who has even casually followed the Des Moines Water Works case this must come as a real shock.  That such a fundamentally unsound report would get as much news coverage as it did is even more shocking.

The first recommendation by IPP is that drainage districts should exercise their “existing statutory authority” to address water quality. Didn’t the writers of the report read the Iowa Supreme Court’s Des Moines Water Works decision? If they had, they would have read this statement in the majority opinion:

The defendants’ lack of statutory authority to regulate farmer nitrate use cuts against revisiting our longstanding precedent, which rests upon the limited existence and powers of drainage districts.

Oddly, the IPP report goes on to quote the dissenting opinion by Justice Cady to support IPP’s recommendation. Of course, a dissent is called a dissent because the writers did not have enough votes for their opinion to have any legal effect.

The IPP report next suggests that drainage districts can use their eminent domain authority for the “expansion of drainage systems.” Some examples provided in the IPP report for this power include wetlands restoration and construction of bioreactors at discharge points. Aside from the fact that wetlands restoration is actually the opposite of what drainage districts are mandated to do, the writers of the report overlooked the simple fact that the power of eminent domain for drainage districts is based on the Iowa Constitution. The Iowa Constitution only grants districts the power of eminent domain “to construct and maintain levees, drains, and ditches.” It would be unconstitutional for a district to condemn farmland for bioreactors, wetlands, or other treatment options.

The IPP report next suggests that state regulators use the “local expertise and outreach available from drainage districts.” This is classic ivory tower wishful thinking. It is clear that the report writers have never tried to find any of these local drainage district water quality experts because if they had they would have quickly discovered that they don’t exist. Most districts don’t even have their own trustees and none have any ability to levy taxes to pay salaries for that activity. For the most part, drainage districts exist purely as legal structures managed solely by the county board of supervisors.

What I fear is that our legislators will read the headlines and think that the IPP has stumbled onto a long-hidden solution to Iowa’s water quality issues. This IPP report will only serve to divert attention from the search for realistic efforts that can make a real improvement to Iowa’s poor water quality.

James Pray

BrownWinick Law Firm

About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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