Will legislators stop the topsoil bulldozer?

After more than a year of watching a bureaucratic bulldozer driven by homebuilding interests clobber Iowa's 4-inch topsoil rule, some elected officials finally will get their hands dirty.

The Legislature's Administrative Rules Review Committee will take a look at the Environmental Protection Commission's decision to scrap a 2012 rule requiring builders to put at least 4 inches of topsoil back on finished construction sites. It would be replaced by a vague standard directing topsoil replacement 'unless infeasible.”

'‘Infeasible' shall mean not technologically possible, or not economically practicable and achievable in light of the best industry practices,” the new rule says. So, basically, you could drive an earthmover through those escape hatches.

'Preserving topsoil is not required where the intended function of a specific area of the site dictates that the topsoil be disturbed or removed,” the rule also says. That would seem to cover entire housing developments.

It's the rules committee's job to review administrative rules crafted by state agencies. Laws are the bones of state government, but administrative rules are the muscles and nerves that put those laws in motion. Ten lawmakers, five Democrats, five Republicans, from both the House and Senate play referee to make sure those rules accurately reflect the intent of those laws.

On Tuesday morning, the EPC's topsoil change is on the agenda, along with testimony from supporters and critics.

'We're getting a lot of email about it,” said Rep. Guy Vander Linden, R-Oskaloosa, a committee member. 'Frankly, I'm waiting to hear what the EPC has to say. I'm keeping an open mind about it.”

Lawmakers' power to stop a rule is limited. With seven votes, the committee can put the rule on a 'session hold,” meaning it won't take effect until after the next legislative session. That gives lawmakers time to weigh in on an issue.

'I think we're going to ask an awful lot of questions of the department. And if they don't give us satisfactory answers, we're going to delay their ability to implement a new rule,” said Sen. Mark Chelgren, R-Ottumwa, another panel member.

I hope lawmakers ask about the shoddy process that brought us to this point. The Department of Natural Resources, at the direction of the Branstad administration, packed a so-called stakeholder group reviewing the topsoil rule with homebuilders and allies intent on scrapping the standard. The group met behind closed doors, shutting out numerous other interests with a stake in topsoil.

Of course, the industry got exactly what it wanted. Lost in all the cynical backroom maneuvering was the topsoil rule's true intent, to reduce runoff with the benefits of improving water quality and mitigating flash flooding.

The Environmental Protection Commission rubber-stamped the change, sidestepping overwhelming public input opposing it, much of it from folks who have struggled with compacted clay yards left over by builders who hauled away their topsoil.

During their public deliberations, our environmental protectors didn't even ask about the rule change's potential environmental effects. Nor did they explain how, while the state is urging farmers to reduce runoff, they're letting urban builders off the hook.

Maybe legislators will ask.

'There's a lot of opposition to changing that rule,” said Sen. Tom Courtney, D-Burlington. 'There's an awful lot of folks who think that topsoil should be left on. I tend to agree with that.

'It seems to me that after it's done, that topsoil ought to go back on that lot. It should belong to the homeowner. People pay a lot of money for lots, and that includes the topsoil.”

Courtney says he thinks the votes are there to delay the rule. Sen. Wally Horn, D-Cedar Rapids and the panel's co-chair, agrees, but says party loyalty is also a factor.

'It's pretty hard if the governor's OK'd it and said it should pass. Usually the Republicans are on his side,” Horn said.

If Horn's right, and GOP members lock up, the EPC's rule takes effect. I'd like to see the committee put the rule on hold.

Then I'd like to see the General Assembly scrap the change and set up a broader and balanced stakeholder group. Homebuilders may make some valid points about the 4-inch rule's flaws, but they shouldn't be the only voices we hear.

There's a good compromise out there that makes topsoil replacement more feasible for builders and still gets at the goal of leaving functional yards that soak up runoff. Lawmakers who represent thousands of Iowans affected by these issues should dig in and make it happen. Stop the bulldozer. Listen to your constituents.

l Comments: (319) 398-8452; todd.dorman@thegazette.com