COUNTY AUTHORITY TO REGULATE CAFOs David VestalGeneral CounselISACMay 3, 2002
How does county home rule work generally? County home rule generally means that a county is free to regulate in an area in the absence of state prohibition on doing so. So counties can do whatever they wish, as long as the state has not told them not to.
So has the state told the counties not to regulate CAFOs?Generally yes. Under Iowa Code section 331.304A, a county shall not“adopt or enforce county legislation regulating a condition or activity occurring on land used for the production, care, feeding, or housing of animals unless the regulation of the production, care, feeding, or housing of animals is expressly authorized by state law.
Are county CAFO moratoriums prohibited by Iowa Code section 331.304A? Under 331.304A, county regulation of CAFOs is only valid if it is “expressly authorized by state law.” So is county regulation of CAFOs “expressly authorized” in the Iowa Code? No.
The closest thing is that, under Iowa Code Chapter 137, counties have very broad authority to make and enforce regulations “as may be necessary for the protection and improvement of the public health.” Chapter 137 may “authorize” regulation of CAFOs, but it does not “expressly authorize” such regulation. So although the issue has not been decided in a court of law, it would appear that CAFO moratoriums are prohibited by 331.304A.
What else does a county need to consider? Even if 331.304A does not preclude county regulation of CAFOs, that is not the end of the analysis. A CAFO might have the authority to operate in a given county under existing state law, but would be prohibited from operating because of a county moratorium. This would be the same problem that led the Court to strike down the Humboldt County ordinances.
Letter from Assistant Attorney General David Sheridan • To Ken Sharp Department of Public Health • Dated May 9, 2002 • Not a formal opinion of the Attorney General • Addresses authority of counties to regulate CAFOs
Discusses SF 2293 - nothing in new law addresses this issue • Discusses 331.304A - Legislature must “expressly authorize” CAFO regulation by counties
Concludes: “County boards of health have general authority to make and enforce regulations which are “necessary for the protection and improvement of the public health.” There is, however, no express mention of CAFOs in chapter 137, and no other provision of Iowa law contains express authority for county boards of health to regulate CAFOs.”
So how would a board of health go about passing a moratorium? • The first step in passing a regulation imposing a CAFO moratorium would be for the board of health to vote on holding a public hearing on the proposed regulation; • The next step is to publish a notice of the time and place of the hearing • Notice of the hearing must also be given to the communications media in the county.
Any “citizen” may appear and be heard at the hearing • At any point after the hearing the board of health votes to approve the moratorium • The moratorium must then be approved by the board of supervisors • The moratorium regulation becomes effective upon publication in a newspaper having general circulation in the county
Is there anything else a county should remember in tackling this issue? Yes. Any discussion of this issue has to be a three-way discussion between the board of health, the board of supervisors and the county attorney. Leaving out any of the three is not advisable.