Iowa DNR jumps into sewage treatment lawsuit between U.S. EPA and Iowa League of Cities

Not content to watch from the sidelines, the Iowa Department of Natural Resources (IDNR) has jumped into the legal fray between the Iowa League of Cities and the U.S. Environmental Protection Agency (EPA) over so-called sewage "bypass" regulations.

Oral arguments were heard November 13 in the case before the U.S. 8th Circuit Court of Appeals in St. Louis, and both sides are awaiting a ruling by the three-judge panel. The league contends the EPA is imposing sewage bypass treatment rules – not specified in EPA regulations – on Iowa cities.

While awaiting the decision, league lawyers asked for and received a letter from the Iowa DNR which appears to strengthen the league's position. The law firm, John Hall & Associates, filed a request Dec. 21 seeking to add the letter from the Iowa DNR and a similar letter from the Kansas Department of Health and the Environment (KDHE) to the court record under consideration by the appellate court.

"Both these letters (from Iowa DNR and Kansas DHE) detail the harm to the regulated community associated with EPA's directives and how, as the result of EPA's current implementation of these mandates, the agencies are unable to issue and approve the historically allowed treatment techniques at issue," the league motion states. "For instance, the IDNR letter confirmed that EPA's new rule interpretations are 'currently limiting the wastewater facility designs considered approvable by IDNR for communities subject to enforcement orders. . .'"

Shelli Grapp, water quality bureau chief for the IDNR who wrote the letter, said the letter wasn't meant to take a position in the lawsuit, and the state was hoping for clarification of what options the EPA will permit for the handling of sewage "bypassed" from full treatment before discharging into rivers/streams.

"The IDNR is interested in the outcome of this litigation and the issues raised therein because such outcome may determine the solutions available to Iowa communities to address peak wastewater flows," Grapp said. "Current EPA positions in regard to peak flow treatment and the use of bacterial mixing zones are limiting the treatment options which the IDNR can approve for communities in Iowa.

". . . during oral argument, the league of Cities was asked whether IDNR is currently imposing through enforcement actions either of the prohibitions dictated by the EPA letters to Senator Grassley and the associated EPA guidance," Grapp said. "The letter was intended to provide a response to the question raised by the court."

"Bypassing is prohibited per state and federal law, however, information regarding acceptable treatment options in the event of extreme wet weather flows has only been provided in EPA guidance documents and discussions," Grapp said. "Iowa DNR has used this guidance to limit the options available in the design of wastewater treatment plants."

The cities of Davenport and Bettendorf currently are negotiating with the Iowa DNR on a consent order concerning peak wastewater flows and sewage bypass treatment at the Davenport sewage treatment plant (owned 20 percent by Bettendorf).

Grapp says she doesn't feel the Iowa DNR's involvement in the league court case will impact those discussions or past consent orders with other Iowa communities.

"The consent orders we issue establish compliance schedules requiring the communities to take whatever actions are necessary to stop violations but do not typically dictate the exact facility designs to be used to address the underlying violations," the water quality bureau chief said. "The impact of the EPA positions in regard to peak flow treatment and the use of mixing zones occurs during the submission of proposed designs by the communities which are under order to upgrade their systems. We expect that the decision would have more of an impact on our design review than on the consent orders requiring upgrades."

CLICK HERE to download a pdf of the Iowa League of Cities request to add supplementary information to the appellate court file.