House File 2461 - Introduced HOUSE FILE 2461 BY ISENHART A BILL FOR An Act relating to water quality and soil conservation efforts, 1 including related powers and duties of commissioners of 2 soil and water conservation districts, county boards of 3 supervisors, county treasurers, the state soil conservation 4 committee, the department of agriculture and land 5 stewardship’s division of soil and water conservation, and 6 the attorney general. 7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 8 TLSB 5461YH (11) 86 da/lh

H.F. 2461 DIVISION I 1 SOIL LOSS LIMITS 2 Section 1. Section 161A.44, unnumbered paragraph 1, Code 3 2016, is amended to read as follows: 4 The commissioners of each soil and water conservation 5 district shall , with approval of and within time limits set by 6 administrative order of the state soil conservation committee, 7 adopt any reasonable regulations as are regulation deemed 8 necessary to establish a soil loss limit or limits for the 9 district , and provide for the implementation of the soil loss 10 limit or limits , and may subsequently amend or repeal their 11 regulations rescind a regulation as they deem necessary. 12 However, a soil loss limit shall not exceed five tons per acre 13 occurring within any twelve-month period. The committee shall 14 review the soil loss limit regulations adopted by the soil and 15 water conservation districts commissioners at least once every 16 five years, and shall recommend changes in the regulations of a 17 soil and water conservation district which the committee deems 18 necessary to assure that the district’s soil loss limits are 19 reasonable and attainable. The adoption, amendment, or repeal 20 of a regulation shall not take effect until after a public 21 hearing on the matter is conducted pursuant to section 161A.45. 22 The commissioners may do any of the following : 23 Sec. 2. Section 161A.45, Code 2016, is amended to read as 24 follows: 25 161A.45 Submission of regulations to committee —— hearing. 26 1. Regulations A regulation, other than a regulation 27 establishing a soil loss limit, which the commissioners propose 28 to adopt, amend, or repeal shall be submitted to the committee, 29 in a form prescribed by the committee, for its approval. The 30 committee may approve the regulations any regulation described 31 in section 161A.44 as submitted, or with amendments any related 32 amendment as it the committee deems necessary. 33 2. The commissioners shall, after any necessary committee 34 approval, publish notice of a hearing on the any proposed 35 -1- LSB 5461YH (11) 86 da/lh 1/ 11

H.F. 2461 regulations regulation , as including a regulation approved by 1 the committee , in a newspaper of general circulation in the 2 district, setting a date and time not less than ten nor more 3 than thirty days after the publication when a hearing on the 4 proposed regulations regulation will be held at a specified 5 place. The notice shall include the full text of the proposed 6 regulations regulation or shall state that the proposed 7 regulations are regulation is on file and available for review 8 at the office of the affected soil and water conservation 9 district. 10 Sec. 3. Section 161A.46, Code 2016, is amended to read as 11 follows: 12 161A.46 Conduct of hearing. 13 At the hearing, the commissioners or their designees 14 shall explain, in reasonable detail, the reasons why the 15 proposed adoption, amendment, or repeal of the regulations a 16 regulation described in section 161A.44 is deemed necessary or 17 advisable. Any landowner, or any occupant of land who would 18 be affected by the regulations proposed regulation , shall 19 be afforded an opportunity to be heard for or against the 20 proposed regulations. At the conclusion of the hearing, the 21 commissioners shall announce and enter of record their decision 22 whether to adopt or modify the proposed regulations regulation . 23 Any modification , other than establishing a soil loss limit, 24 must be approved by the committee, which may at its discretion 25 order the commissioners to republish the regulations regulation 26 and hold another hearing in the manner prescribed by this 27 chapter . 28 Sec. 4. Section 161A.47, Code 2016, is amended to read as 29 follows: 30 161A.47 Inspection of land on complaint —— administrative 31 order . 32 1. a. The commissioners shall inspect or cause to be 33 inspected any land located within the district to determine 34 find if land is being damaged by sediment, from there exists 35 -2- LSB 5461YH (11) 86 da/lh 2/ 11

H.F. 2461 credible evidence of significant soil loss caused by erosion 1 occurring on neighboring that land in excess of the limits 2 established by the district’s soil erosion control regulations 3 or neighboring land . If the land is privately owned, the The 4 commissioners shall make or cause to be made the inspection , 5 upon receiving a under any of the following circumstances: 6 (1) Receipt of a written complaint signed by an owner , 7 lessee, or occupant of land claiming that the owner’s or , 8 lessee’s, or occupant’s land is being damaged by sediment 9 erosion occurring on neighboring land . If the land is subject 10 to a public interest, the commissioners shall make or cause to 11 be made the inspection upon a 12 (2) Receipt of a written complaint by any person, if the 13 complaint contains allegations or information that would cause 14 a reasonable person to conclude that significant soil loss 15 caused by erosion has occurred. 16 (3) A majority vote of commissioners at an open meeting held 17 pursuant to chapter 21 . Land is subject to a public interest 18 if the land is publicly held, subject to an easement held by 19 the public, or the subject of an improvement made at public 20 expense. 21 (4) In the manner provided in section 161A.61. 22 b. The commissioners shall establish criteria to determine 23 what constitutes credible evidence of significant soil loss 24 based on the soil loss limit established for the district 25 pursuant to section 161A.44. 26 2. If, after the inspection, the commissioners find that 27 sediment damages are occurring to land which is owned or 28 occupied by the person filing the complaint or subject to a 29 public interest, and that excess soil erosion is occurring 30 on neighboring land soil loss exceeding the soil loss limit 31 established in section 161A.44 , the commissioners shall issue 32 an administrative order . The administrative order shall 33 describe the commissioners’ findings, including the cause of 34 the significant soil loss, the extent to which the soil loss 35 -3- LSB 5461YH (11) 86 da/lh 3/ 11

H.F. 2461 exceeds the soil loss limit, the location of the erosion, and 1 whether land has been damaged by soil loss due to erosion 2 occurring on neighboring land. The administrative order 3 shall be delivered to the persons responsible for causing the 4 significant soil loss, including each landowner or landowners 5 of record, lessee of the land, and to the occupant of the land , 6 if known to the commissioners. The order shall describe the 7 land and state as nearly as possible the extent to which soil 8 erosion on the land exceeds the limits established by the 9 district’s regulations. Upon request, the commissioners shall 10 deliver a copy of the administrative order to the owner of any 11 land damaged by erosion occurring on neighboring land. The 12 administrative 13 3. The order shall be delivered either by personal service 14 or by restricted certified mail to each of the persons to whom 15 it is directed , and shall: . 16 3. The administrative order shall establish a compliance 17 period as follows: 18 a. In the case of erosion occurring on the site of any 19 a construction project or similar undertaking involving the 20 removal of all or a major portion of the vegetation or other 21 cover , and exposing bare soil directly to water or wind, state 22 a time not more than five days after service or mailing of 23 the notice of the order when work necessary to establish or 24 maintain all erosion control practices must be commenced , and a 25 time not more than thirty days after service or mailing of the 26 notice of the order when the not later than five days after the 27 administrative order has been delivered. The work is to must 28 be satisfactorily completed not later than thirty days after 29 the administrative order has been delivered . 30 b. In all other cases, state a time not more than six 31 months after service or mailing of the notice of the order, 32 by which work needed necessary to establish or maintain the 33 all necessary soil and water conservation practices or erosion 34 control measures practices must be commenced , and a time not 35 -4- LSB 5461YH (11) 86 da/lh 4/ 11

H.F. 2461 more than one year after the service or mailing of the notice 1 of the order when the work is to be satisfactorily completed 2 and satisfactorily completed not later than one year after 3 the administrative order has been delivered , unless the 4 requirements of the administrative order are superseded by the 5 provisions of section 161A.48 . 6 Sec. 5. Section 161A.48, subsection 2, Code 2016, is amended 7 to read as follows: 8 2. Evidence that an application for cost-share or other 9 public moneys, from a source or sources having authority to 10 pay a portion of the cost of work needed to comply with an 11 administrative order issued pursuant to section 161A.47 , has 12 been submitted to the proper officer or agency constitutes 13 commencement of the work within the meaning of sections 161A.43 14 through 161A.53 . The commissioners shall give preference to 15 applications which seek to comply with an administrative order 16 issued pursuant to section 161A.47. 17 Sec. 6. Section 161A.49, Code 2016, is amended to read as 18 follows: 19 161A.49 Petition for court order Administrative order —— 20 noncompliance . 21 The commissioners shall petition the district court for a 22 court order requiring immediate compliance with an Upon the 23 expiration of the compliance period for an administrative order 24 previously issued by the commissioners as provided in section 25 161A.47 , if the person to whom the order is directed shall be 26 deemed to be in noncompliance if any of the following apply : 27 1. The work necessary to comply with the administrative 28 order is has not commenced on or before the date specified 29 in such order, or in any supplementary order subsequently 30 issued as provided in section 161A.48 , unless . However, 31 this subsection does not apply if, in the judgment of the 32 commissioners , the failure to commence or complete the work 33 as required by the administrative order is due to factors 34 beyond the control of the person or persons to whom such order 35 -5- LSB 5461YH (11) 86 da/lh 5/ 11

H.F. 2461 is directed and the person or persons can be relied upon to 1 commence and complete the necessary work at the earliest 2 possible time. 3 2. Such The work is not being performed with due diligence, 4 or is not satisfactorily completed by the date specified in 5 the administrative order, or when completed does not reduce 6 soil erosion from such the land below the limits soil loss 7 limit established by the soil and water conservation district’s 8 regulations in section 161A.44 . 9 3. The person or persons to whom the administrative order is 10 directed advise has advised the commissioners that they do not 11 intend to commence or complete such work. 12 Sec. 7. NEW SECTION . 161A.49A Administrative order —— 13 referral or petition to enforce. 14 1. a. Upon the expiration of the compliance period 15 described in sections 161A.47 and 161A.48, the commissioners 16 shall enforce the administrative order against a person who 17 is deemed to be in noncompliance under section 161A.49 by 18 referring the matter to any of the following: 19 (1) The board of supervisors of a county in which the land 20 causing the erosion is located. 21 (2) The attorney general pursuant to section 161A.6. 22 b. The referral shall include a copy of the administrative 23 order and other information required by the recipient. 24 2. The commissioners shall notify any person whose land 25 is damaged by erosion occurring on neighboring land that the 26 compliance period has expired. The person may petition the 27 board of supervisors of the county in which the land causing 28 the erosion is located to take action necessary to enforce 29 the administrative order. The petition shall include a copy 30 of the administrative order and other information required by 31 the board. A copy of the petition must be delivered to the 32 commissioners who issued the administrative order. 33 3. A board of supervisors receiving a referral or petition 34 under this section shall do any of the following: 35 -6- LSB 5461YH (11) 86 da/lh 6/ 11

H.F. 2461 a. Take action necessary to enforce compliance with the 1 administrative order. Upon completion of board action, 2 the board shall deliver a statement to the county treasurer 3 certifying the costs of taking the action plus a penalty equal 4 to five percent of that amount, together with a copy of the 5 administrative order. The total amount due shall be assessed 6 against the property which is the subject of the administrative 7 order, shall be placed upon the county system, and shall be 8 collected in the same manner as ordinary taxes. The amount due 9 shall be a lien on the land until paid. 10 b. Refer the matter to the attorney general. 11 Sec. 8. Section 161A.50, Code 2016, is amended to read as 12 follows: 13 161A.50 Burden —— court order Court action . 14 1. Upon the expiration of the compliance period for an 15 administrative order issued by the commissioners as provided in 16 sections 161A.47 through 161A.49, the commissioners, or either 17 a county board of supervisors or attorney general acting upon a 18 referral under section 161A.49A, shall petition the district 19 court to order a person deemed to be in noncompliance with 20 the administrative order under section 161A.49 to immediately 21 comply with the order. 22 2. In any action brought under section 161A.49 subsection 23 1 , the burden of proof shall be upon the commissioners to 24 show that soil erosion is in fact occurring in excess of the 25 applicable soil loss limits limit and that the defendant has 26 not established or maintained soil and water conservation 27 practices or erosion control practices in compliance with the 28 soil and water conservation district’s regulations regulation . 29 With respect to construction, repair, or maintenance of any 30 public street, road, or highway, evidence that the defendant 31 has met soil erosion control standards equivalent to or 32 in excess of those currently imposed by the United States 33 government on the project or like projects involving use of 34 federal funds shall create a presumption of compliance with the 35 -7- LSB 5461YH (11) 86 da/lh 7/ 11

H.F. 2461 applicable soil loss limit. 1 3. Upon receiving satisfactory proof of the defendant’s 2 noncompliance , the court shall issue an order directing 3 the landowner or landowners defendant to comply with the 4 administrative order previously issued by the commissioners. 5 The court may modify such administrative order if deemed 6 necessary. Notice of the court order shall be given either by 7 personal service or by restricted certified mail to each of the 8 persons to whom the order is directed, who may within thirty 9 days from the date of the court order appeal to the supreme 10 court. Any person who fails to comply with a court order 11 issued pursuant to this section within the time specified in 12 such order, unless the order has been stayed pending an appeal, 13 shall be deemed in contempt of court and may be punished 14 accordingly. 15 DIVISION II 16 EDUCATIONAL PROGRAM 17 Sec. 9. Section 161A.4, Code 2016, is amended by adding the 18 following new subsection: 19 NEW SUBSECTION . 9. The committee shall establish an 20 educational program for persons who first assume the office of 21 commissioner. The curriculum shall concentrate upon the duties 22 and powers of commissioners as described in this chapter, and 23 include recommended procedures and practices to best carry out 24 those powers and duties. The curriculum shall be administered 25 by the division according to rules adopted by the division in 26 consultation with the committee. 27 DIVISION III 28 WATER QUALITY INITIATIVES 29 Sec. 10. Section 161A.4, Code 2016, is amended by adding the 30 following new subsection: 31 NEW SUBSECTION . 8. The committee and division shall 32 establish policies that prioritize the allocation of moneys, 33 personnel, and technical expertise necessary to administer this 34 chapter and chapter 466B to support water quality initiatives 35 -8- LSB 5461YH (11) 86 da/lh 8/ 11

H.F. 2461 sponsored by a watershed management authority as described in 1 section 466B.43. 2 Sec. 11. NEW SECTION . 466B.43 Priority allocations. 3 The state soil conservation committee established in 4 section 161A.4 and the division shall establish policies that 5 prioritize the allocation of moneys, personnel, and technical 6 expertise necessary to administer this chapter and chapter 466B 7 to support water quality initiatives sponsored by a watershed 8 management authority created by two or more soil and water 9 districts under section 466B.22. The highest priority shall 10 be given to support initiatives carried out in high-priority 11 watersheds identified by the water resources coordinating 12 council pursuant to section 466B.3. 13 EXPLANATION 14 The inclusion of this explanation does not constitute agreement with 15 the explanation’s substance by the members of the general assembly. 16 GENERAL. This bill relates to the powers and duties of 17 the five soil commissioners who govern each soil and water 18 conservation district (district) and who are elected to serve 19 four-year terms on a nonpartisan basis. It also relates to 20 the powers and duties of a number of other state and local 21 entities, including county boards of supervisors (boards), 22 county treasurers, the state soil conservation committee 23 (committee), the soil conservation division of the department 24 of agriculture and land stewardship (division), and the 25 attorney general. 26 COMMISSIONERS, BOARDS, AND THE ATTORNEY GENERAL —— 27 ESTABLISHING AND ENFORCING SOIL LOSS LIMITS. The commissioners 28 are to establish criteria for determining what constitutes 29 significant soil loss for land located within their district, 30 including soil loss caused by erosion occurring on neighboring 31 land. The commissioners are to adopt a regulation establishing 32 a soil loss limit which shall be not more than five tons during 33 any 12-month period. The regulation establishing a soil loss 34 limit is no longer required to be approved by the committee. 35 -9- LSB 5461YH (11) 86 da/lh 9/ 11

H.F. 2461 The commissioners must perform an inspection of land located 1 in their district after receipt of a written complaint or upon 2 a majority vote at an open meeting. After the inspection, the 3 commissioners must issue an administrative order against a 4 person if the commissioners find the loss of soil exceeds the 5 soil loss limit. The order must describe the commissioners’ 6 findings, be delivered to the person responsible for causing 7 the soil loss, and establish a period for compliance with 8 the order. Evidence of compliance with the order includes 9 applying for public moneys, such as cost-share financing, 10 in order to defray a portion of the costs associated with 11 complying with the order. The bill requires the commissioners 12 to give preference to applications which seek to comply with 13 an administrative order. 14 After the compliance period expires, if no work to comply 15 with the order is being performed, the commissioners must 16 enforce the order by referring the matter to the attorney 17 general or the board in the county in which the land is 18 located. A person whose land is damaged due to neighboring 19 land’s erosion may also petition the board to enforce the 20 order. If the board takes action to enforce compliance with 21 the order, the board must notify the treasurer of the costs 22 associated with taking its action. The treasurer must enter 23 an amount equal to the costs plus a 5 percent penalty on the 24 tax books, which shall be collected as ordinary taxes and 25 constitutes a lien against the property. However, the board 26 may instead refer the matter to the attorney general. The 27 commissioners, or the board or attorney general acting under 28 a referral, must petition the district court to enforce the 29 order. 30 COMMITTEE AND DIVISION —— EDUCATIONAL PROGRAM FOR NEWLY 31 ELECTED COMMISSIONERS. The committee is to establish an 32 educational program for persons who first assume the office 33 of commissioner. The curriculum must include practices 34 recommended to best carry out a commissioner’s powers and 35 -10- LSB 5461YH (11) 86 da/lh 10/ 11

H.F. 2461 duties. The program is to be administered by the division. 1 COMMITTEE AND DIVISION —— PRIORITIZING SOIL CONSERVATION 2 EFFORTS AND WATER QUALITY INITIATIVES. The committee and 3 division are to establish policies that prioritize the 4 allocation of moneys, personnel, and technical expertise 5 to support soil conservation efforts (Code chapter 161A), 6 and water quality initiatives as sponsored by a watershed 7 management authority formed by two or more districts (Code 8 section 466B.43). The highest priority is to be given to 9 support efforts in high-priority watersheds identified by the 10 water resources coordinating council (Code section 466B.3). 11 -11- LSB 5461YH (11) 86 da/lh 11/ 11