Diane Rosenberg is executive director of Jefferson County Farmers & Neighbors, where this commentary first appeared.

Jefferson County Farmers & Neighbors and several other environmental organizations recently met with Kelli Book, legal counsel for the Iowa Department of Natural Resources (DNR), to learn how the agency is revising Chapter 65 of Iowa’s administrative code, dealing with animal feeding operations.

We came away with many concerns about how the DNR is approaching the “Red Tape Review,” required by Governor Kim Reynolds’ Executive Order Number Ten.

Currently, the administrative code is a self-contained document. Much of the new version will be spread piecemeal over the DNR’s website or on the state’s online legislative database. That will reduce transparency and make the rules harder to use.

Although Book said the revised Chapter 65 will not affect enforcement of CAFO regulations, we question how the revision will influence which rules and regulations remain and how enforceable they will be.

Reynolds signed Executive Order Number Ten in January. The order requires each state agency to review and conduct a cost-benefit analysis of every rule and regulation in the Iowa Administrative Code, remove any duplicate or “unnecessary” rules and regulations, eliminate restrictive language, and rewrite the code from scratch. Reynolds’ goal is to reduce the page length of the administrative code and foster the growth of the private sector.

JFAN, the Iowa Environmental Council, Sierra Club Iowa chapter, Iowa Citizens for Community Improvement, Environmental Law and Policy Center, and others met with Book for more than an hour. She outlined the DNR’s revision process and answered our many questions.

IMPORTANT CONTEXT WILL BE REMOVED

The DNR had a head start with Chapter 65, because last summer, it was removing duplicative language as part of a rules review that occurs every five years. To fulfill the executive order’s dictates, the DNR is now eliminating language that appears in a rule’s corresponding statute (the formal wording of the law). In place of that language, the revised rules will contain a reference to the code section.

The administrative code exists to interpret and implement the various statutes that are written in somewhat more complex legal language. Now the public will be responsible for searching out the statute on the state’s legislative database to locate the deleted information. That will include 75 percent of frequently-used definitions, which form the basis for understanding the rest of the administrative code’s rules and regulations.

When hearing our concerns about this approach, Book said the industry groups also were dissatisfied.

Complicating matters, Book said she didn’t know whether the revised administrative code would contain a hyperlink to the statute. The nonpartisan Legislative Agency Service (LSA) will be responsible for posting the code online. Among its many duties, the LSA drafts and processes bills and administers the legislative databases. Removing the language in and of itself will reduce the administrative code’s usefulness, but if the statute is not linked, it will make using the code difficult and locating the statute time-consuming.

THE COST-BENEFIT ANALYSIS FAVORS LIVESTOCK PRODUCERS

The DNR will conduct a cost-benefit analysis of each rule by calculating how much it would cost producers to apply the rules for CAFO construction and manure management. According to the state’s Red Tape Rule Report, the agency must also submit costs agencies incur to implement and enforce a rule, if the costs justify the achieved benefits, and if there are less restrictive alternatives to accomplish the benefit.

In theory, those costs will be weighed against the environmental benefits of the rules and regulations—but the environmental benefits won’t be quantified in a dollar amount. During a recent phone call, Book told JFAN Executive Director Diane Rosenberg that the DNR didn’t know how to approach developing those costs. Rosenberg told Book that environmental costs could be provided and referred to Iowa Environmental Council (IEC) data, which the organization is compiling for Book.

It’s hard to imagine how environmental benefits can be properly valued if there are no associated costs attached. In 2017, Iowa’s Nutrient Reduction Strategy estimated it could take $4 billion in initial investment to clean up Iowa’s severely polluted waterways. A 2015 Des Moines Register study found one-third of Iowa’s municipalities were at high risk for nitrate pollution. However, properly removing nitrates involves building and operating denitrification plants, which cost millions of dollars and are prohibitive for most municipalities.

Iowans relying on private wells are at high risk of bacterial contamination. A 2019 analysis by the Iowa Environmental Council found 40 percent of tested wells contained coliform bacteria. Iowans with contaminated wells must either chemically treat their wells to remove bacteria, drill new wells, or forgo wells entirely and hook up to rural water systems—all at their own expense. That doesn’t even address the associated health costs of drinking water that is high in nitrates.

The DNR is also required to conduct a retrospective analysis to compare Iowa’s CAFO rules to those of neighboring states. The Executive Order asks for an analysis of less restrictive alternatives to accomplish the same benefit and to explain why other states may have less restrictive rules.

The cost-benefit and retrospective analyses will be submitted to the governor’s office along with the revised Chapter 65. Book said those two analyses are not influencing the language of the revised chapter at present, but it’s unclear how they may influence the final version. The DNR is one of the first agencies to go through the new rules process, and Book admitted that much is not yet known about how it will proceed.

IMPORTANT APPENDIX INFORMATION WILL BE REMOVED

The 106-page Appendix of the DNR’s administrative code contains lists of all the state’s lakes, rivers, and streams deemed major water sources, as well as other essential tables for developing manure management plans, information on feedlot management, and more. That Appendix will be removed and housed on the DNR website.

Book said she doubted the LSA would provide a direct link to those lists, since that data is not part of a statute. The location of major water sources is crucial to properly siting CAFOs. Again, it will be the public’s job to search out that information.

THE CHAPTER 65 TIMETABLE

The DNR is currently undergoing an internal review, revising the chapter to comply with the executive order’s requirements, and preparing a draft for initial public comment. That first comment period will take place from May 15 to July 1. That is similar to the early stakeholder comment period last summer, during which JFAN, the Iowa Environmental Council, and other organizations, including industry groups, submitted comments.

From July 1 to July 31, the DNR will finalize Chapter 65 based on the comments it receives and prepare pre-clearance documents to submit to the governor’s office by September 1. Given the submission of the accompanying cost-benefit and retrospective analyses, it’s unknown how the governor’s office will work with the submitted chapter.

The governor’s office will then submit their pre-cleared draft to the Environmental Protection Commission (EPC) for its December meeting. The EPC will move to begin the formal public comment period, which will take place in early 2024. Book said at least two public meetings will be held around the state during the formal public comment period, but was open to suggestions of having one at each of the DNR’s six field offices, as well as a virtual session.

Once the public meetings are concluded, the DNR will incorporate additional changes based on the public comments, and the EPC will vote on the final chapter revision during a meeting in 2024.

ENVIRONMENTAL GROUPS PREPARE TO RESPOND

Needless to say, we are extremely concerned about the end product of Chapter 65 and how it will impact factory farm regulation and enforcement. The factory farming industry poses real and significant threats to public health and water quality, and these rules and regulations are in place to protect Iowans. It’s going to be essential for the public to speak out during all phases of the revision process in order to prevent any further weakening of the rules.

There has been little media coverage about Reynolds’ executive order, and the governor’s office has been less than transparent in their execution. For example, the review dates for each agency are listed on the Iowa Department of Management’s website, but the timeline is nothing but a set of numbers with no identifying agency. [Editor’s note from Laura Belin: The agency and administrative rule sections are listed here, but it’s tedious to cross-check those with this document.]

JFAN is working with the Iowa Environmental Council and other organizations on a strategy. We will review the new draft when it’s released on May 15, and with that in hand, work together to map out a plan of action.

Part of the challenge is that the process is new and much remains unknown. We will continue to monitor how the Executive Order revision of Chapter 65 unfolds. Stay in touch with JFAN and the Iowa Environmental Council for continued updates.

Top image of shredded paper by Dario Sabljak, available via Shutterstock.