Farm and Industry Groups Challenge Iowa’s Antidegradation Rules

Today the Iowa Farm Bureau Federation, the Iowa Renewable Fuels Association, and the Iowa Water Environment Association filed a petition for judicial review and request for stay of agency action in the Polk County, Iowa district court. Defendants in the lawsuit include the Environmental Protection Commission (EPC) and the Iowa Department of Natural Resources (DNR).

This lawsuit was filed immediately after the EPA announced that it had approved Iowa’s antidegradation rules.

The lawsuit has three counts. First, the suit alleges that EPC member Carrie La Seur voted on December 21, 2009 to approve the new rules even though she had ceased being an eligible member of the EPC. Under Iowa law, EPC members must be “electors of the state.” Iowa Code section 455A.6(1). Documents attached to the petition allege that Ms. La Seur had registered to vote in Montana on August 3, 2009 and had voted in Montana elections on September 15, 2009 and November 3, 2009. Iowa law defines an “eligible elector” as a “person who possesses all of the qualifications necessary to entitle the person to be registered to vote, whether or not the person is in fact so registered. Iowa Code section 39.3(6). Iowa law prohibits voters from claiming the right to vote in more than one location. Registration in a foreign state presumes revocation of an earlier claim of residency. Iowa Code section 48A.5. The petition alleges, therefore, that Commissioner La Seur was ineligible to vote or serve.

Iowa’s Administrative Procedure Act provides that administrative action may be challenged if it is the product of a decision making undertaken by persons who were improperly constituted as a decision-making body, were motivated by improper purpose, or were subject to disqualification. Iowa Code section 17A.19. Because EPC member La Seur was not eligible to serve on the EPC when the vote was taken to approve the antidegredation rules, the lawsuit alleges that the EPC was improperly constituted.

The second count alleges that Susan Heathcote, another member of the EPC, was motivated by an improper purpose as that member was employed by an organization that supported the antidegradation rules.

The third count alleges that Iowa’s antidegradation rules are more restrictive than the federal law. Iowa Code section 455B.105(3) requires the EPC to state in the Notice of Intended Action or preamble that a rule will be more restrictive than what is required under federal law. The Iowa antidegradation rule invents a Tier 2 1/2 designation in between the federal Tier 2 and Tier 3 designation. No mention was made in the preamble or Notice of Intended Action that this change was in the offing.

The Iowa Farm Bureau has 154,000 members. The Iowa Renewable Fuels Association, and the Iowa Water Environment Association are industry groups with 100 and 600 members, respectively. All three groups have some members who will be required to obtain or renew NPDES permits that comply with antidegredation requirements.

By:
James Pray

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About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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