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Less Words, More Confusion – How Executive Order Number Ten Will Affect Chapter 65 CAFO Rules

Photo: Shutterstock/Leka Sergeeva

by Diane Rosenberg | Executive Director

Rules and regulations need to be clear, orderly, and in one place so they can be completely understood and followed. This is especially true of those focused on CAFOs as they impact the public health of 3.19 million Iowans and water quality of 70,297 miles of rivers and streams.

However, Chapter 65, the Iowa administrative code that regulates CAFOs, is becoming weaker, confusing, and more difficult to use under the dictates of Governor Reynolds’ Executive Order Number Ten (EO10). Rather than have all pertinent information in one place, EO10 will fragment Chapter 65’s essential information and scatter it in several locations online and in offices around the state.

EO10, dubbed “The Red Tape Review”, directs all agencies to reduce the number of words throughout the state’s entire code, eliminating language deemed unnecessary, redundant, or even too restrictive. Users will now have to search for specific Iowa statutes to completely understand and comply with CAFO rules and regulations. In the case of Chapter 65, some of the missing information will now be housed on the DNR’s website or obtained from a field office. Both environmental organizations and industry groups oppose this change.

EO10 requires a cost-benefit analysis be developed for all the rules and regulations. We have serious concerns about how the CAFO industry’s financial interests may dominate public health and the environmental protections. EO10 also stipulates no new rules can be made more stringent than what is already in the code. Most CAFO regulations are anything but stringent and should be strengthened.

The customary five-year rules review of Chapter 65 began last summer. The DNR invited all stakeholders and the public to provide initial public comments on their first redrafting of Chapter 65. The DNR incorporated selected recommendations into their next draft, which was to then proceed to a formal public comment period beginning in January 2023.

But EO10 halted that process in January, and the DNR had to revise their latest draft under

EO10 requirements. That is the version that JFAN, the Iowa Environmental Council and other environmental organizations recently reviewed and what our recent recommendations were based upon.

JFAN’s comments covered several areas, and you can read our full 19-page public comment here. JFAN also signed onto the Iowa Environmental Council’s 44-page comment that you can read here.

EO10 Reduces Usability

Chapter 65 begins with approximately 150 definitions that form the basis of understanding the rules and regulations. They are a crucial part of the administrative code and often contain detailed descriptions. We refer to them frequently when helping a community develop a strategy to oppose a CAFO.

Executive Order Number 10 will weaken CAFO regulations

The DNR opted to reduce words by deleting half of the definitions and replacing them with language that states additional definitions that can be found in “Iowa Code sections 455B.101; 455B.171; 459.102, 459A.102 and 459B.102 and in 567-Chapter 60.”

One would not know what definition was removed, if one even needs the definition to fully understand the rule, nor where to locate it in the sections above. Much time will be wasted searching for the language. A user may also assume a term has a different meaning than what is specifically defined in the statute.

JFAN recommended all missing definitions be fully returned. Understanding that was likely to be untenable, we added that, at the very least, all the terms for the deleted definitions remain and be hyperlinked to the exact statute.

There are also several places where part of a definition or rule remains in Chapter 65 and part has been removed because the exact language is also found the statute. But it’s not always clear that there is more language nor where it’s located. This particularly shows up in rules on manure application, a concerning place to eliminate important information. We recommended that in each instance, the DNR clearly states more information can be found in a specific hyperlinked statute number.

Many of the references are to Iowa Statute 455B. This is an enormous statute and difficult to navigate. Again, we recommended the DNR includes a hyperlink to the exact section in that statute.

Environment Benefits of Regulations and the EO10 Cost-Benefit Analysis

EO10 requires each agency to submit a cost-benefit analysis of the rules in the Red Tape Review Rule Template Agencies are to document the intended benefit of the rule, the costs for the public to comply, if the costs are justified, impacts on small businesses, and if there are less restrictive alternatives used by other states.

We wanted to know exactly how the DNR was going to approach this analysis. During a conversation with DNR attorney Kelli Book, JFAN Executive Director Diane Rosenberg learned that actual dollar amounts were to be used to determine the cost for producers to comply and for agencies to enforce the rules. But no actual dollar amounts were to be used on the benefit of the rules on public health and water quality.

IEC and JFAN provided the DNR with cost-benefit figures for Chapter 65 's revision under Executive Order Number Ten

When asked why not, Book said the DNR didn’t know how to approach gathering that information. Rosenberg said actual costs are available from studies available through the Iowa Environmental Council (IEC), would be provided, and should be factored in.

The following summarizes figures both IEC and JFAN submitted addressing the cost-benefit analysis. IEC’s comments provide a detailed analysis with the specific studies supporting these costs.

These costs are for each year.

  • Direct medical expenses: $7.25 – 27.5 million

  • Indirect medical expenses (including economic losses from disability, IQ point losses from preterm births, premature death): $35-167.5 million

  • Public water supply treatment costs $165 million

  • Private well treatment for Iowans $4 – 7 million

These are significant costs that have a direct impact on Iowans, the vast majority of whom don’t operate CAFOs.

JFAN also cited a 2021 Travel Iowa Economic Impact Report that found tourism had a $9.4 billion impact that year with $6.1 billion in direct spending, 65,000 jobs created, and $1 billion in state and local taxes generated. Compare that to National Pork Producers Council figures for 2021: $8.48 billion impact and over 88,161 Iowa jobs. Clearly, hog production is not the only industry in Iowa, but it’s an industry that may impact tourism, and it shouldn’t be favored over other industries.

Strengthening Regulations – the LLC Loophole and More

JFAN, IEC and other groups met with Book on June 12, advocated for a wide range of improvements to the chapter, and made an argument for incorporating the environmental and public health costs IEC presented. We spent a fair amount of time on the LLC loophole – a situation where two or more adjacent CAFOs with common ownership are built under separate LLCs and regulated as two smaller individual confinements rather than one larger CAFO.

Because the DNR previously recognized the LLC as the owner of the CAFO, not the individuals with ownership of the LLC, CAFO owners were able to skirt more stringent regulations.

JFAN recommends a revision to Chapter 65 to rein in the LLC loophole

Recognizing this problem, the DNR attempted to close the loophole in 2019. They nearly succeeded by requiring CAFO owners to state whether or not they have a 10% or more interest in the adjacent CAFO LLC. But the DNR only requires a letter from each CAFO owner. That’s not a legal document and has no legal teeth. Anything could be written in a letter.

The DNR needs something better to identify common ownership, so JFAN talked with attorneys and the Secretary of State’s office to determine the best approach. Due to a lack of actual legal documentation in Iowa that states the percentage of ownership in an LLC, we recommended the DNR require an affidavit signed under oath to provide that information. While not perfect, it’s a legal document that may deter hiding common ownership because of penalties of perjury.

At the meeting we were questioned if using the LLC loophole was a rare occurrence and actually necessary to address. Rosenberg pointed out it happens quite often in Jefferson County and would provide specifics.

Our comments list 12 examples involving 22 CAFOs in Jefferson County and 4 in Clay Township in Washington County where we either knew there was common ownership or suspected there might be. That’s a full 25% of all the CAFOs in Jefferson County. It’s highly unlikely Jefferson County is an outlier in this area.

Reinstating Manure Application Guidelines

JFAN advocates for required guidelines in Chapter 65 for manure application

Chapter 65 currently includes a long list of protective guidelines for applying manure. The DNR opted to remove them from the chapter since they were just recommendations and not part of the code. We wholeheartedly disagree. With Iowa’s poor water quality – 751 polluted waterways, 1120 manure spills since 1996, and at least $4.7 million fish killed since 1995 – the guidelines should remain. It should be really clear to farmers and manure applicators alike what practices they are expected to follow.

Therefore, JFAN and the Iowa Environmental Council, recommended not only should these guidelines be returned, but that they be made required practices of the code.

The DNR also deleted some important language on applying manure to snow-covered or frozen ground. They removed language requiring identification of land in a manure management plan that could be used for an emergency application along with several details to determine whether it’s even a suitable field. Applying manure on snow-covered or frozen ground is a terrible practice to begin with, but at the very least, language should remain that helps to prevent additional water pollution from taking place.

JFAN’s comments included more recommendations, agreed with a few DNR changes, and reiterated the consideration of our 2022 public comments.

Meeting with Governor’s Office

On July 18, JFAN, the Iowa Environmental Council, and several other organizations met with Nate Ristow, Governor’s Office administrative rules coordinator for EO10, and Lillie Brady, agricultural advisor to the governor. Our discussion focused on the cost-benefit analysis of Chapter 65 and the chapter’s usability issues. IEC attorney Mike Schmidt gave a concise presentation on the costs associated with public health, drinking and recreational water, and tourism driving the need for strong regulations.

Ristow indicated it was helpful data to assist the DNR in justifying whether a rule should remain or be rescinded. But Rosenberg said it was unknown if the DNR would use the data we presented and asked if the Governor’s Office would refer to it in their eventual review. Ristow repeated it was useful information, but said it was ultimately the DNR and the Environmental Protection Commission with the rulemaking authority. He did say the Governor’s Office would push back if the cost of a rule couldn’t be justified.

Ristow also addressed our usability concerns, and reiterated that the agriculture industry was also deeply opposed to chopping up the code. He argued that statutes can change each legislative session and code chapters aren't always updated and become inaccurate. Ristow said some agencies haven’t updated their administrative codes in many years.

Rosenberg pointed out that there has been very little legislative change impacting Chapter 65 over the last couple of years and that the DNR does periodically update the administrative code to reflect changes. (Note - the most recent version was posted on 1-15-20.) It’s JFAN’s opinion that one of the primary goals of EO10 is political – it gives the governor an opportunity to claim that the word count and restrictiveness of the state’s administrative code was reduced. In fact, the Red Tape Rule Report Template asks for agencies to report the total number of rules repealed, the proposed reduced word count, and the proposed number of restrictive terms eliminated.

What’s Next

In early September, the DNR will provide another opportunity for public comments on the next draft of Chapter 65 that will incorporate selected recommendations made in June's comment period. It also opens up public comments for the Regulatory Analysis Form, which also includes the cost-benefit analysis.

Public comments needed on Chapter 65 and Executive Order Number 10

This will be a critical time to make a case for the public health and environmental benefits of environmental regulations. The DNR will then incorporate selected comments into another draft to be submitted to the governor’s office by the end of October.

The governor’s office will have until the end of November to review and approve Chapter 65 and its accompanying documents, along with chapters from a quarter of the state’s other agencies. If Chapter 65 is approved, the Environmental Protection Commission will vote during their December meeting to start the formal rule making process. The DNR said it was unclear how they will proceed if the chapter doesn’t clear the governor’s office.

The formal comment period will begin in January. It’s unknown whether all the agencies undergoing EO10 reviews this year will have public comments open simultaneously in January or if they will be staggered monthly throughout the first part of the year.

From our observations, Executive Order Number Ten weakens Chapter 65. The Regulatory Analysis Form puts a lot of emphasis on the impact of rules to small businesses but little to public health, Iowans’ well-being and water quality.

In September, public comments in support of more stringent regulations and a more cohesive chapter can help to offset those coming in from the pork industry who stand to benefit from weaker regulations. JFAN will continue to collaborate with the Iowa Environmental Council and other environmental organizations to work towards stronger CAFO regulations. Saving words and supporting CAFO developers should not come at the expense of public health and water quality.

Stay tuned for announcements of the next public comment period.


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