Yesterday the U.S. Environmental Protection Agency formally approved the new "antidegradation" rules adopted by the Iowa Department of Natural Resources to protect high quality Iowa waters. The Iowa Farm Bureau Federation and two industry groups immediately filed a lawsuit challenging the legality of the state Environmental Protection Commission's vote to adopt the antidegradation rules. The EPC and the DNR are named as defendants.
A Farm Bureau press release charged that two members of the EPC should not have been able to vote on the rule. Carrie LaSeur, president of the non-profit organization Plains Justice, "was already living and voting in Montana when she cast her vote on the Iowa antidegradation rule," the lawsuit contends. "That is a clear violation of the residency laws governing the EPC, which require members to be registered Iowa voters." The lawsuit further claims EPC member Susan Heathcote had a conflict of interest because she works for the Iowa Environmental Council, a non-profit that advocated adoption of antidegradation standards. Environmental attorney James Pray posted a link to the petition on his blog and summarized a third angle to the lawsuit:
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.
The EPC has nine commissioners and needs at least five yes votes to adopt a rule. The antidegradation rule passed on December 15, 2009 by a vote of six to two with one abstention (pdf). In other words, it would have passed without LaSeur voting, or without Heathcote, but not without both of them.
I am not an attorney and don't know Iowa case law relating to residency and LaSeur's eligilibity to serve on a state commission.
Heathcote declined my request for comment today, not having had a chance to read the legal petition. She had served on the EPC for more than two years before the antidegradation rule passed, but this is the first lawsuit challenging her ability to vote on commission matters related to environmental regulation.
The EPA noted yesterday that the federal Clean Water Act requires Iowa "to develop and adopt a statewide antidegradation policy and to identify procedures for implementing the policy." I thought Iowa's many years of non-compliance were over once opponents failed to stop the water quality rules in the Iowa legislature's Administrative Rules Review Committee in February. The Farm Bureau's lawsuit means at least a delay and perhaps the demise of rules designed to "maintain and protect high quality waters and existing water quality in other waters from unnecessary pollution."