Three ways to help save an important rule for Iowa water and soil

The next few weeks will be critically important for deciding whether Iowa keeps a statewide rule designed to preserve topsoil and reduce stormwater runoff, which carries pollution to our waterways. Bleeding Heartland discussed the 4-inch topsoil rule here and here. Todd Dorman has been on the case with several good columns for the Cedar Rapids Gazette, most recently here.

Follow me after the jump for background on the issue and details on how to weigh in. Submitting a comment takes only a few minutes, or Iowans may attend public hearings in Cedar Rapids tonight, Davenport on March 25, or Des Moines on March 27 (scroll down for times and locations).

I’m active with several environmental groups that are mobilizing support for a state rule adopted in 2012, which requires developers to replace 4 inches of topsoil on new construction lots. The Sierra Club’s Iowa chapter posted some background on the issue here. A March 17 action alert from 1000 Friends of Iowa explains the current state of play:

HISTORY:  In January [2015] the Environmental Protection Commission (EPC) heard citizen and expert input on the importance of leaving 4″ of topsoil on development sites. Unfortunately, the EPC has given notice of intended action to amend Chapter 64, revising General Permit No. 2 . The new changes leave a loophole for developers that 1000 Friends of Iowa wants to see closed. The EPC will hold three public hearings March 18 (Cedar Rapids), 25 (Davenport), and 27 (Des Moines) in three cities to discuss the proposed changes to General Permit No. 2.  

The proposed change to the topsoil rule requires builders to replace topsoil “unless infeasible”. The proposed change is vague and would leave it to builders to decide how much, if any, topsoil to replace.  With the current discussion about impaired waters, run-off, erosion, a nutrient reduction strategy and nitrates in our drinking water – the EPC needs to hear Iowans expect better.

If this rule is rendered ineffective or the EPC gets rid of the 4″ rule, individual cities may adopt a version of the rule.  But Iowa needs uniform laws across the state to ensure our environment and natural resources are protected.

To establish healthy landscapes, improve on-site storm water retention, lessen runoff and soil erosion, and improve water quality – we need to retain four inches of healthy soil. The opposition is well-funded and vocal. Make your voice heard! We need every Iowan to contact the EPC and legislators and tell them you support the 4″ topsoil requirement.

ACTION #1:  Attend the public hearings

The public hearings are scheduled as follows:

March 18 , 2015 – 6 p.m.

City Services Center

Five Seasons Conference Room

500 15th Avenue SW

Cedar Rapids

March 25, 2015 – 6 p.m.

Easter Ave. Branch Library

Room A

6000 Eastern Avenue


March 27, 2015 – 1 p.m.

Wallace Building Auditorium

502 E. 9th Street

Des Moines

ACTION #2:  or submit your comments to the DNR

If you are unable to attend one of the public hearings, comments may be submitted to the Storm Water Coordinator by mail, orally, fax or email between March 10 and April 1, 2015. At the March 6th Administrative Rules Review Committee the Topsoil Rule was on the agenda.  The DNR was only allowed to answer questions and wasn’t requested to make a presentation except to briefly describe the rule.  When writing comments to the DNR it is worthwhile to ask basic questions the DNR can answer, so the information gets published in the public record.  Examples of questions may be:  “How is topsoil important to water quality?”   “Will this proposed rule enable cities to enforce topsoil retention on building lots?   “Does the Nutrient Reduction Strategy expect cities (as well as agriculture) to practice good land stewardship?” and “Will the proposed rule aid cities in urban conservation practices?”  Ask those burning questions and offer your opinion on the importance of keeping the rule in place.

Storm Water Coordinator

Iowa Department of Natural Resources

502 E. 9th Street

Des Moines, IA 50319

Phone: 515-725-8417

Fax: 515-725-8202


Additional information:

Administrative Rules Review Committee

EPC Notice of Intended Action

Additional background on the issue, including public comments, from the DNR

ACTION #3:  Contact your legislator and members of the Administrative Rules Review Committee

Once the EPC holds hearings and makes their final rule, the rule will advance to the legislature’s Administrative Rules Review Committee.  They will make the final ruling on the rule.  Take the opportunity to contact your legislator – even if she/he is not on the Administrative Rules Review Committee – now while the legislature is in session!  Tell your legislator about the impending rule and what you want to see happen – a uniform rule across Iowa requiring developers to leave 4 inches of topsoil on development sites.

Legislative Administrative Rules Review Committee

Senate Members

Wally E. Horn (D, District 35), Vice Chair –

Mark Chelgren (R, District 41) –

Mark Costello (R, District 12) –

Thomas G. Courtney (D, District 44) –

Pam Jochum (D, District 50) –

House Members

Dawn E. Pettengill (R, District 75), Chair –

Lisa Heddens (D, District 46) –

Megan Jones (R, District 2) –

Rick Olson (D, District 31) –

Guy Vander Linden (R, District 79) –

A March 17 Iowa Rivers Revival action alert included more good talking points:

The Iowa DNR is holding public hearings regarding topsoil preservation rules for new construction sites.  The construction industry is asking to amend the rule that requires 4″ of topsoil be maintained or replaced on new construction sites — they are asking for no limits.  

IRR Executive Director, Roz Lehman, attended one of the initial hearings last spring in support of maintaining the current rule.  During the hearing, one of the contractors made the comment, “why should I care what happens downstream…?”  Additionally, when several contractors were asked what they would consider a reasonable compromise?  All of them responded there should be no limit.  If you disagree, help us preserve this rule – submit comments or attend a public meeting.

This is our opportunity to preserve a rule to protect our rivers and other waterways.  Right now the stakeholders group charged with making rule recommendations to the EPC are stacked with 4 contractors and 2 other non-contractors -so far the vote is 4 to 2 to recommend the EPC eliminate the regulation that builders must return 4″ of topsoil to yards after construction.

• Just a few inches of topsoil in your yard can absorb over 70% of the rainfall that we get in Eastern Iowa in a year. Without that soil much of the rainfall runs off into rivers carrying nutrients, sediment and other pollutants as well as causing flash flooding in some areas. A lawn with healthy soil also needs less water and fertilizer to grow reducing the cost and impact on the environment.

• Healthy lawns and landscapes are not the primary reason for this rule but the builders argue that the cost of that 4″ of topsoil is too high. They have said that homeowners do not know or care that they are left with compacted clay yards that are unsuitable to growing anything. Is it fair that they can repeal this rule based on cost then leave homeowners to pay the costs for the rest of the life of that home and taxpayers to pick up the bill for managing polluted waters and flooding?

Todd Dorman has been connecting the dots back to Governor Terry Branstad, who has long been committed to giving business interests more influence over state policy. From Dorman’s January 25 column in the Cedar Rapids Gazette:

“I just ask you to vote for the new rule as the governor has written it,” Chip Classon of Jerry’s Homes told the Iowa Environmental Protection Commission on Wednesday. Classon was among homebuilding interests who dominated a “stakeholder” group picked by Gov. Terry Branstad’s office. The group urged the EPC to scrap a current rule requiring builders to replace 4 inches of topsoil on finished sites.

The EPC voted 8-0 with little discussion to file a notice of intended action kicking off a process that could erase the rule and replace it with new language favored by homebuilders. […]

It’s curious, but entirely fitting, to suggest the governor wrote the new rule. It was Gov. Terry Branstad who signed Executive Order 80, allowing the appointment of stakeholder groups to rewrite state regulations. His office did pick this stakeholder group and made sure homebuilding interests controlled the majority. And his staff signed off on the revised rule.

To say he wrote the bill is perhaps a stretch. But he let the writers borrow his pen, and his clout. And Pat Sauer, who leads the Iowa Stormwater Education Program and served as a stakeholder, says whoever wrote the proposed language, it wasn’t what stakeholders voted on last summer.

Sauer, who supports the current rule, offered a good compromise Wednesday that would require builders to file a soil management plan outlining how they intended to handle disturbed topsoil. Seems reasonable. But when the process is stacked in homebuilders’ favor, why compromise? They’ve got votes.

Dorman’s March 12 column is a must-read too. Excerpts:

My own question for the EPC is simple. Why has it abandoned all sense of balance and fairness on this issue? […]

If Iowa homeowners get a dysfunctional yard that grows only if it’s drenched with water and fertilizer, that’s their problem. If somebody downstream has to deal with the consequences of dirty water and flashy stream flows, too bad.

What the EPC should be doing, instead of endorsing a sham regulatory end around, is putting together a real, balanced stakeholder group to come up with a regulation that has a positive effect on runoff while seeking to mitigate the concerns of builders. It’s entirely possible, and good proposals already have been offered.

Branstad’s administration is adamant that it cares about water quality, and that cooperation and collaboration are the best ways to get it done. And yet, it’s created a process in this case that allowed no give and take. Instead, it’s been all take for the governor’s homebuilding friends.

If the EPC fails to solve a manageable issue where good solutions are well within its grasp, how can we ever expect it to do the right thing on much larger, more difficult issues? The answer, if the commission rubber-stamps this rule change, is that we can’t.

Please share any relevant comments in this thread, but more important, share those comments with state policy-makers who can stop this speeding train.  

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  • So does this mean...

    Des Moines Water Works can extend/expand its lawsuit against farmers to include the EPC/DNR if they get rid of the 4″ topsoil requirement?  Does elimination of the requirement protect home builders, developers, and municipalities from being included in future DMWW suits?

    In fact, the whole DMWW lawsuit is the answer to the unnamed contractor’s question “why should I care what happens downstream…?”

    I mean, aside from the obvious answer, which is “because you live downstream of someone else and need water to drink, too”.