House File 437 - Introduced
HOUSE FILE
BY WHITAKER
Passed House, Date Passed Senate, Date
Vote: Ayes Nays Vote: Ayes Nays
Approved
A BILL FOR
1 An Act relating to confinement feeding operations, by providing
2 for the issuance of permits to construct confinement feeding
3 operation structures, and including an applicability
4 provision.
5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
6 TLSB 2420HH 82
7 da/es/88
PAG LIN
1 1 Section 1. Section 331.304A, Code 2007, is amended to read
1 2 as follows:
1 3 331.304A LIMITATIONS ON COUNTY LEGISLATION.
1 4 1. As used in this section:
1 5 a. "Aerobic structure", "animal", "animal feeding
1 6 operation", "animal feeding operation structure", "confinement
1 7 feeding operation structure," and "manure" mean the same as
1 8 defined in section 459.102.
1 9 b. "County legislation" means any ordinance, motion,
1 10 resolution, or amendment adopted by a county pursuant to
1 11 section 331.302.
1 12 2. a. A Except as provided in subsection 3, a county
1 13 shall not adopt or enforce county legislation regulating a
1 14 condition or activity occurring on land used for the
1 15 production, care, feeding, or housing of animals unless the
1 16 regulation of the production, care, feeding, or housing of
1 17 animals is expressly authorized by state law. County
1 18 legislation adopted in violation of this section is void and
1 19 unenforceable and any enforcement activity conducted in
1 20 violation of this section is void.
1 21 b. A As used in paragraph "a", a condition or activity
1 22 occurring on land used for the production, care, feeding, or
1 23 housing of animals includes but is not limited to the
1 24 construction, operation, or management of an animal feeding
1 25 operation, an animal feeding operation structure, or aerobic
1 26 structure, and to the storage, handling, or application of
1 27 manure or egg washwater.
1 28 3. A county shall participate in reviewing an application
1 29 to construct a confinement feeding operation structure to be
1 30 located in the county as provided in section 459.304.
1 31 Sec. 2. Section 459.303, subsection 2, Code 2007, is
1 32 amended by striking the subsection and inserting in lieu
1 33 thereof the following:
1 34 2. The department shall only issue a permit to construct a
1 35 confinement feeding operation structure after the review of an
2 1 application by the board of supervisors in the county where
2 2 the proposed construction is to be located and by the
2 3 department, as provided in this section and section 459.304.
2 4 Before issuance of a permit the application must be accepted
2 5 by the board and approved by the department. However, if an
2 6 applicant is not required to be issued a permit, the
2 7 department shall still review the application, and shall
2 8 either approve the application and issue the permit or
2 9 disapprove and terminate the application, all without county
2 10 review, as otherwise provided in section 459.304.
2 11 Sec. 3. Section 459.304, subsection 2, unnumbered
2 12 paragraph 1, Code 2007, is amended to read as follows:
2 13 Regardless of whether the county board of supervisors has
2 14 adopted a construction evaluation resolution, the A county
2 15 board of supervisors may provide comment comments to the
2 16 department on regarding the department's determination to
2 17 approve or disapprove an application proposing to construct a
2 18 construction permit application for a confinement feeding
2 19 operation structure in the county.
2 20 Sec. 4. Section 459.304, subsections 3 through 8, Code
2 21 2007, are amended to read as follows:
2 22 3. A county board of supervisors may shall adopt a
2 23 construction evaluation resolution ordinance relating to the
2 24 construction of a confinement feeding operation structure.
2 25 a. As part of the ordinance, the board shall establish a
2 26 construction evaluation committee and provide for its
2 27 procedures. The board shall appoint persons to serve as
2 28 committee members as follows:
2 29 (1) Five persons who shall serve as voting members for
2 30 staggered five=year terms as provided in the ordinance. The
2 31 members shall include the following: the county's
2 32 environmental health officer; a commissioner of a soil and
2 33 water conservation district located in the county as provided
2 34 in chapter 161A; a real estate broker licensed pursuant to
2 35 chapter 543B who resides in the county; a person who resides
3 1 in a city which is located in the county; and a person
3 2 actively engaged in the care and feeding of animals.
3 3 (2) One member of the board who shall serve as an ex
3 4 officio, nonvoting member for a term as provided in the
3 5 ordinance.
3 6 b. The board must shall submit such resolution the
3 7 construction evaluation ordinance to the department for filing
3 8 as required by the department. If the board has submitted
3 9 such resolution to the department, the board may evaluate the
3 10 construction permit application and submit an adopted
3 11 recommendation to the department to approve or disapprove a
3 12 construction permit application as provided in this
3 13 subsection.
3 14 c. The board must shall make its decision to recommend
3 15 approval or disapproval of a decision to accept or reject the
3 16 permit application as provided in this subsection. follows:
3 17 a. (1) For the expansion of a confinement feeding
3 18 operation that includes a confinement feeding operation
3 19 structure constructed prior to April 1, 2002, the board shall
3 20 not evaluate review a construction permit application for the
3 21 construction or expansion of a confinement feeding operation
3 22 structure if after the expansion of the confinement feeding
3 23 operation, its animal unit capacity is one thousand six
3 24 hundred sixty=six animal units or less.
3 25 b. (2) The board must shall make its decision to accept or
3 26 reject an application based on the results of the master
3 27 matrix.
3 28 (a) The board shall submit the application to the
3 29 committee for review. The committee shall conduct an
3 30 evaluation of the application using the master matrix as
3 31 provided in section 459.305. The board's recommendation may
3 32 be based on the master matrix or may be based on comments
3 33 under this section regardless of the results of the master
3 34 matrix. After its review, the committee shall recommend that
3 35 the board accept or reject the application in a manner
4 1 provided for by the board. The committee's recommendation
4 2 shall be based on a rating produced by using the master
4 3 matrix. The recommendation, including the completed master
4 4 matrix, must be contained in a written report submitted to the
4 5 board within thirty days after the date that the department
4 6 receives a complete application pursuant to section 459.303.
4 7 (b) The board shall consider and adopt or not adopt the
4 8 committee's recommendation. If the board does not adopt the
4 9 committee's recommendation to accept the application, the
4 10 board must conduct an independent evaluation of the
4 11 application using the master matrix. The board shall reject
4 12 an application that does not achieve a satisfactory rating.
4 13 The board shall accept an application that does achieve a
4 14 satisfactory score.
4 15 c. (c) In completing the master matrix, the board county
4 16 shall not score criteria on a selective basis. The board
4 17 county must score all criteria which is part of the master
4 18 matrix according to the terms and conditions relating to
4 19 construction as specified in the application or commitments
4 20 for manure management that are to be incorporated into a
4 21 manure management plan as provided in section 459.312.
4 22 d. The board's adopted recommendation board shall decide
4 23 to accept or reject an application pursuant to a motion and
4 24 the decision shall be submitted to the department as required
4 25 by the department. The board's decision shall include the
4 26 committee's report, any reason for not adopting the
4 27 recommendation submitted to the board by the committee, and a
4 28 statement of the board's adoption of the master matrix used by
4 29 the committee or the use of a master matrix used by the board
4 30 after conducting an independent evaluation of the application.
4 31 The decision shall also include any other specific reasons
4 32 reason and any supporting documentation for the decision to
4 33 recommend approval or disapproval of which was used by the
4 34 board to accept or reject the application.
4 35 4. The department must receive the county board of
5 1 supervisor's comments or evaluation for approval or
5 2 disapproval of an , if any, and a decision to accept or reject
5 3 an application for a construction permit to construct a
5 4 confinement feeding operation structure not later than thirty
5 5 sixty days following the applicant's delivery of the
5 6 application to the department. Regardless of whether the
5 7 department receives comments or an evaluation by a county
5 8 board of supervisors, the The department must approve or
5 9 disapprove an application for a construction permit issue the
5 10 permit or terminate the application within sixty a processing
5 11 period of ninety days following the applicant's delivery of
5 12 the application to the department. However, the applicant may
5 13 deliver a notice to the department and the board requesting a
5 14 continuance. Upon receipt of a notice, the time required for
5 15 the county or department to act upon the application shall be
5 16 suspended for the period provided in the notice, but for not
5 17 more than thirty days after the department's receipt of the
5 18 notice. The applicant may submit more than one notice.
5 19 However, the department may provide that an application is
5 20 terminated if no action is required by the county or the
5 21 department for one year following delivery of the application
5 22 to the board. The department may grant the county a
5 23 continuance upon request by the board when the committee or
5 24 the board is considering the application. The department may
5 25 also provide for a continuance when it considers the
5 26 application. The department shall provide notice to the
5 27 applicant and the board of the continuance. The time required
5 28 for the county or the department to act upon the application
5 29 shall be suspended for the period provided in the notice, but
5 30 for not more than thirty days. However, the department shall
5 31 not grant more than one continuance to the county or provide
5 32 for more than one continuance for itself.
5 33 5. a. The department shall approve an application for a
5 34 construction permit to construct a confinement feeding
5 35 operation structure, if the board of supervisors which has
6 1 filed a county construction evaluation resolution submits an
6 2 adopted recommendation to approve the construction permit
6 3 application which may be based on a satisfactory rating
6 4 produced by the master matrix to the department submits a
6 5 decision to accept the application and the department
6 6 determines that the application meets the requirements of this
6 7 chapter. The department shall disapprove an application that
6 8 does not satisfy the requirements of this chapter regardless
6 9 of the adopted recommendation of decision submitted by the
6 10 board. The department shall consider any timely filed
6 11 comments made by the board as provided in this section to
6 12 determine if an application meets the requirements of this
6 13 chapter.
6 14 b. If The department shall not approve an application for
6 15 a permit to construct a confinement feeding operation
6 16 structure if the board submits to the department an adopted
6 17 recommendation a decision to disapprove an reject the
6 18 application. for a construction permit that is based on a
6 19 rating produced by the master matrix, the The department may
6 20 set aside an application that the board rejects until the
6 21 application is terminated at the end of the processing period.
6 22 However, at any time prior to the termination, the applicant
6 23 may contest the board's decision or the department may
6 24 petition the commission to review the board's decision. Upon
6 25 notice by the applicant contesting the board's decision of a
6 26 petition by the department to the commission of the board's
6 27 decision, the department shall first determine if the
6 28 application meets the requirements of this chapter as provided
6 29 in section 459.103. The department shall disapprove an
6 30 application that does not satisfy meet the requirements of
6 31 this chapter regardless of any result produced by using the
6 32 master matrix. If the application meets the requirements of
6 33 this chapter, the department shall conduct an independent
6 34 evaluation of the application using the master matrix. The
6 35 department shall approve the an application if it achieves a
7 1 satisfactory rating according to the department's evaluation
7 2 that does meet the requirements of this chapter, conditioned
7 3 upon the commission's resolution of all issues affecting and
7 4 approval of the application. The department shall disapprove
7 5 the application if it produces an unsatisfactory rating
7 6 regardless of whether the application satisfies the
7 7 requirements of this chapter. The department shall consider
7 8 any timely filed comments made by the board as provided in
7 9 this section to determine if an application meets the
7 10 requirements of this chapter. Upon commission request, the
7 11 department shall conduct an independent evaluation of the
7 12 application using the master matrix for consideration by the
7 13 commission during its review of the board's decision. At any
7 14 time prior to the application's termination, the applicant or
7 15 the board may contest the department's determination to
7 16 approve or disapprove the application as provided in this
7 17 section.
7 18 c. If the county board of supervisors does not submit a
7 19 construction evaluation resolution to the department, fails to
7 20 submit an adopted recommendation, submits only comments, or
7 21 fails to submit comments, the department shall approve the
7 22 application if the application meets the requirements of this
7 23 chapter as provided in section 459.103.
7 24 6. The department may conduct an inspection of the site on
7 25 which the construction is proposed after providing at a
7 26 minimum twenty=four hours' notice or upon receiving consent
7 27 from the construction permit applicant. The county board of
7 28 supervisors that has adopted a construction evaluation
7 29 resolution of the county in which the construction is
7 30 proposed, may designate a county employee to accompany a
7 31 departmental official during the site inspection. The county
7 32 employee shall have the same right to access to the site's
7 33 real estate as the departmental official conducting the
7 34 inspection during the period that the county employee
7 35 accompanies the departmental official. The departmental
8 1 official and the county employee shall comply with standard
8 2 biosecurity requirements customarily required by the
8 3 confinement feeding operation that are necessary in order to
8 4 control the spread of disease among an animal population.
8 5 7. Upon written request by a county resident, the county
8 6 board of supervisors shall forward to the county resident a
8 7 copy of the board's adopted recommendation decision to accept
8 8 or reject the application, the report or related documentation
8 9 used by the construction evaluation committee, any county
8 10 comments to the department on the permit application, and the
8 11 department's responses, as provided in chapter 22.
8 12 8. a. The department shall deliver a notice to the
8 13 parties as follows:
8 14 (1) To the applicant of the board's decision to accept or
8 15 reject the application or the department's determination to
8 16 approve or disapprove the application. A notice shall include
8 17 an explanation of the applicant's right to contest the board's
8 18 decision or the department's determination as provided in this
8 19 section. The department shall notify the board at the same
8 20 time. The department shall deliver the notice within three
8 21 days of the after the submission of the board's decision or
8 22 the department's determination.
8 23 (2) To the board of the department's decision petition to
8 24 the commission to review the board's decision to accept or
8 25 reject the application or the department's determination to
8 26 approve or disapprove an the application for a construction
8 27 permit. If the board of supervisors has submitted an adopted
8 28 recommendation to the department for the approval or
8 29 disapproval of a construction permit application as provided
8 30 in this section, the department shall notify the board of the
8 31 department's decision to approve or disapprove the application
8 32 A notice shall include an explanation of the board's right to
8 33 be a party in the commission's review of the board's decision
8 34 to accept or reject the application or the board's right to
8 35 contest the department's determination to approve or
9 1 disapprove the application. The department shall deliver a
9 2 copy to the applicant at the same time.
9 3 b. (1) The applicant may contest the department's
9 4 determination to disapprove an application or the board's
9 5 decision to reject the application, by requesting demanding a
9 6 hearing and may elect to have the hearing conducted before an
9 7 administrative law judge pursuant to chapter 17A or before the
9 8 commission. If the applicant and a board of supervisors are
9 9 both contesting the department's decision determination, the
9 10 applicant may request that the commission presiding officer
9 11 conduct the hearing on a consolidated basis. The commission
9 12 shall hear the case according to procedures established by
9 13 rules adopted by the department. The commission may hear the
9 14 case as a contested case proceeding under chapter 17A. The
9 15 department, upon petition by the applicant, shall deliver to
9 16 the administrative law judge or the commission a copy of the
9 17 board of supervisors' recommendation board's decision and the
9 18 committee's report together with the results produced by its
9 19 the master matrix and used by the committee, the board, and
9 20 the department; any supporting data or documents submitted
9 21 with the results,; and comments submitted by the board to the
9 22 department, and the department's evaluation of the application
9 23 including the results produced by its matrix and any
9 24 supporting data or documents. If the commission hears the
9 25 case, its decision shall be the department's final agency
9 26 action. The commission shall render a decision within
9 27 thirty=five sixty days from the date that the applicant or
9 28 board files a demand for a hearing.
9 29 (2) A county board of supervisors that has submitted an
9 30 adopted recommendation to the department The board may contest
9 31 the department's decision determination by requesting a
9 32 hearing and may elect to have the hearing conducted before an
9 33 administrative law judge pursuant to chapter 17A or before the
9 34 commission. If the applicant and a board are both contesting
9 35 the department's determination, the applicant may request that
10 1 the presiding officer conduct the hearing on a consolidated
10 2 basis. The commission shall hear the case according to
10 3 procedures established by rules adopted by the department.
10 4 The commission may hear the case as a contested case
10 5 proceeding under chapter 17A. The board may request that the
10 6 department submit a copy of the department's evaluation of the
10 7 application including the results produced by its matrix and
10 8 any supporting data or documents. The decision by the
10 9 commission shall be the department's final agency action. The
10 10 commission shall render a decision within thirty=five sixty
10 11 days from the date that the board initiates the proceeding.
10 12 (3) The department may petition the commission to review
10 13 the board's decision to reject the application by requesting a
10 14 hearing and the commission may elect to have the hearing
10 15 conducted before an administrative law judge pursuant to
10 16 chapter 17A. If the applicant is contesting the board's
10 17 decision to reject the application or the department's
10 18 determination to disapprove the application, or the board is a
10 19 party to the hearing reviewing the board's decision to accept
10 20 or reject the application, the department, board, or applicant
10 21 may request that the presiding officer consolidate all matters
10 22 as part of the same hearing. The commission shall hear the
10 23 case according to procedures established by rules adopted by
10 24 the department. The commission may hear the case as a
10 25 contested case proceeding under chapter 17A. The decision by
10 26 the commission shall be the department's final agency action.
10 27 The commission shall render a decision within thirty=five days
10 28 from the date that the department initiates the proceeding.
10 29 c. Judicial review of the decision of either the
10 30 department or the commission may be sought in accordance with
10 31 the terms of chapter 17A.
10 32 Sec. 5. Section 459.305, subsection 1, paragraph b, Code
10 33 2007, is amended to read as follows:
10 34 b. The master matrix shall be designed to produce
10 35 quantifiable results based on the scoring of all objective
11 1 criteria according to an established value scale. The
11 2 applicant shall provide an adequate response necessary to
11 3 score each criterion. Each criterion shall be assigned points
11 4 corresponding to the value scale. The master matrix shall
11 5 consider risks and factors mitigating risks if the confinement
11 6 feeding operation structure were constructed according to the
11 7 application.
11 8 Sec. 6. Section 459.305, subsection 2, unnumbered
11 9 paragraph 1, Code 2007, is amended to read as follows:
11 10 The master matrix shall include criteria valuing
11 11 environmental and community impacts for use by county boards
11 12 of supervisors and the department three categories which
11 13 measure impacts upon air quality, water quality, and
11 14 communities. The master matrix shall include definite point
11 15 selections for all criteria provided in each of the master
11 16 matrix categories. The master matrix shall provide only for
11 17 scoring of positive points and shall not provide for deduction
11 18 of points. The master matrix shall provide for require a
11 19 minimum threshold score required of seventy percent for each
11 20 of the categories and a minimum overall threshold score of
11 21 seventy percent to receive a satisfactory rating. If an
11 22 applicant fails to provide an adequate response necessary to
11 23 score the criterion, the point value for that criterion shall
11 24 be deducted from the relevant category score and overall
11 25 score. The master matrix shall be structured to ensure that
11 26 it feasibly provides for a satisfactory rating. Criteria
11 27 valuing environmental impacts shall account for animal
11 28 agriculture's relationship to quality of the environment and
11 29 the conservation of natural resources, and may include factors
11 30 that refer to all of the following:
11 31 Sec. 7. APPLICABILITY. This Act applies to applications
11 32 for the issuance of permits involving the construction,
11 33 including expansion, of confinement feeding operation
11 34 structures which have been filed with the department of
11 35 natural resources on or after the effective date of this Act.
12 1 EXPLANATION
12 2 CURRENT LAW. This bill amends several Code provisions
12 3 which provide for county participation in the approval of
12 4 permits for the construction of confinement feeding operation
12 5 structures (e.g., confinement buildings and manure storage
12 6 structures) by the department of natural resources.
12 7 Currently, counties are prohibited from adopting or enforcing
12 8 county legislation regulating a condition or activity
12 9 occurring on land used for the production, care, feeding, or
12 10 housing of animals unless the regulation is expressly
12 11 authorized by state law (Code section 331.304A). One
12 12 exception allows a county to provide comments to the
12 13 department regarding the issuance of a permit for construction
12 14 of confinement feeding operation structures under Code chapter
12 15 459 (the animal agriculture compliance Act). A second
12 16 exception allows a county to participate in the scoring of a
12 17 master matrix. The purpose of the master matrix is to provide
12 18 a comprehensive assessment mechanism in order to produce a
12 19 statistically verifiable basis for determining whether to
12 20 approve or disapprove an application for a construction
12 21 permit. A county board of supervisors may adopt a
12 22 construction evaluation resolution in order to use a master
12 23 matrix. If the board submits a resolution to the department,
12 24 the board may evaluate a construction permit application and
12 25 submit a recommendation to the department to approve or
12 26 disapprove the application. The department must approve an
12 27 application if the board submits a recommendation to approve
12 28 the application, and the department determines that the
12 29 application meets the requirements of Code chapter 459. The
12 30 department must disapprove an application that the department
12 31 determines does not satisfy the requirements of Code chapter
12 32 459 regardless of the recommendation from the board. If the
12 33 board submits a recommendation to disapprove the application,
12 34 the department must first determine if the application meets
12 35 the requirements of Code chapter 459. If the application
13 1 meets the requirements of the chapter, the department must
13 2 conduct an independent evaluation of the application using the
13 3 master matrix. The department must approve the application if
13 4 it achieves a satisfactory rating according to the
13 5 department's evaluation. The department must disapprove the
13 6 application if it produces an unsatisfactory rating regardless
13 7 of whether the application satisfies the requirements of Code
13 8 chapter 459. Both the applicant and the board may contest the
13 9 department's decision to the environmental protection
13 10 commission. The applicant may also contest the decision as a
13 11 contested case proceeding before an administrative law judge.
13 12 PROPOSED CHANGES == REVIEW PROCESS. The bill amends Code
13 13 section 331.304A to specifically require that a county must
13 14 participate in reviewing an application to construct a
13 15 confinement feeding operation structure to be located in the
13 16 county. The bill amends Code sections 459.303 relating to the
13 17 issuance of permits and 459.304 providing for county
13 18 participation, by providing that the department shall only
13 19 issue a permit to construct a confinement feeding operation
13 20 structure after the review of an application by the board of
13 21 supervisors in the county where the proposed construction is
13 22 to be located. In lieu of a county evaluation resolution, the
13 23 board of supervisors must adopt a county evaluation ordinance.
13 24 As part of the ordinance, the board must establish a
13 25 construction evaluation committee. The committee is composed
13 26 of five persons including the county's environmental health
13 27 officer (sanitarian), a commissioner of a soil and water
13 28 conservation district located in the county, a real estate
13 29 broker, a person who resides in a city, and a person actively
13 30 engaged in the care and feeding of animals. The committee
13 31 must also include one member of the board who serves as a
13 32 nonvoting, ex officio member. The committee must recommend
13 33 that the board accept or reject the application based on the
13 34 rating produced by using the master matrix. The board must
13 35 either adopt or not adopt the committee's recommendation. If
14 1 the board does not adopt the committee's recommendation, the
14 2 board must conduct an independent evaluation of the
14 3 application using the master matrix.
14 4 The department must receive the board's comments or
14 5 decision to accept or reject an application within 60, instead
14 6 of 30, days following the applicant's delivery of the
14 7 application to the department, and must issue or not issue the
14 8 permit within 90, instead of 60, days following the
14 9 applicant's delivery of the application to the department.
14 10 The department shall not approve an application for a
14 11 permit to construct a confinement feeding operation structure
14 12 if the county rejects the application, unless the applicant
14 13 contests the board's decision or the department petitions the
14 14 commission to review the board's decision. In that case, the
14 15 department must conduct an evaluation of the application to
14 16 determine if it complies with the requirements of Code chapter
14 17 459. The department must disapprove the application or
14 18 approve the application pending the outcome of the
14 19 commission's resolution of the matter. The commission may
14 20 also request that the department conduct an independent
14 21 evaluation of the application using the master matrix.
14 22 PROPOSED CHANGES == SCORING. The purpose of the master
14 23 matrix is to provide a comprehensive assessment mechanism in
14 24 order to produce a statistically verifiable basis for
14 25 determining whether to approve or disapprove an application
14 26 (Code section 459.305). According to departmental rules, the
14 27 master matrix includes categories (referred to as
14 28 subcategories) for air, water, and community impacts. An
14 29 applicant must score a positive threshold number in each of
14 30 the categories and a positive overall threshold number (see
14 31 567 IAC 65, appendix C). The bill requires an applicant to
14 32 provide an adequate response necessary to complete each
14 33 criterion in the master matrix. The bill provides for the
14 34 deduction of points. It provides that the master matrix must
14 35 be comprised of three categories which measure impacts upon
15 1 air quality, water quality, and communities, and that an
15 2 applicant must achieve a threshold score of 70 percent in each
15 3 of the categories and a threshold overall score of 70 percent
15 4 as is provided for by department rule in order to receive a
15 5 satisfactory rating under the master matrix. The bill
15 6 provides that a failure to provide an adequate response
15 7 necessary to score the criterion results in the deduction of
15 8 points for that criterion.
15 9 The bill applies to applications for the issuance of
15 10 permits which have been filed with the department on or after
15 11 the effective date of the bill.
15 12 LSB 2420HH 82
15 13 da:rj/es/88.2