Text: HF02412 Text: HF02414 Text: HF02400 - HF02499 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. NEW SECTION. 456B.21 SHORT TITLE. 1 2 This subchapter shall be known and may be cited as the 1 3 "Iowa Wetlands Act". 1 4 Sec. 2. NEW SECTION. 456B.22 DEFINITIONS. 1 5 As used in this subchapter, unless the context otherwise 1 6 requires: 1 7 1. "Program" means the wetland program created pursuant to 1 8 section 456B.23. 1 9 2. "Regulated activity" means any activity conducted 1 10 within a wetland or a regulated buffer area which may decrease 1 11 wetland functions, including discharge of fill material, 1 12 bulkheading, mining, excavating, draining, and dredging. 1 13 3. "Wetland" means an area that is inundated or saturated 1 14 by surface or groundwater at a frequency and duration 1 15 sufficient to support, and that under normal circumstances do 1 16 support, a prevalence of vegetation typically adapted to live 1 17 in saturated soil conditions. "Wetland" may include a swamp, 1 18 marsh, bog, or similar area. 1 19 Sec. 3. NEW SECTION. 456B.23 WETLAND PROGRAM. 1 20 1. The department shall create and administer a wetland 1 21 program for the protection and restoration of wetlands in the 1 22 state. The program shall be carried out in cooperation with 1 23 other state agencies, federal agencies, local governments, 1 24 land trusts, private and public landowners, and other 1 25 interested organizations. 1 26 2. In carrying out the program, the department shall do 1 27 all of the following: 1 28 a. Adopt wetland maps as provided in section 456B.24. 1 29 b. Provide technical assistance and training to assist 1 30 local governments in developing wetland protection and 1 31 restoration programs and to assist local governments in 1 32 integrating wetland protection and restoration into 1 33 comprehensive land planning and management efforts, including 1 34 floodplain and stormwater management, pollution control, 1 35 source water planning, greenway, open space, and other 2 1 efforts. 2 2 c. Adopt procedures and criteria for approval of local 2 3 government wetland regulatory programs in lieu of direct state 2 4 permitting as provided in section 456B.29. 2 5 d. Encourage and provide guidance with regard to the 2 6 restoration of wetlands as provided in section 456B.30. 2 7 e. Adopt joint permit processing procedures with other 2 8 federal and state agencies and local governments with 2 9 jurisdiction over wetlands and take other measures to improve 2 10 coordination and reduce duplication between the department and 2 11 other federal and state agencies and local governments. 2 12 Sec. 4. NEW SECTION. 456B.24 MAPPING AND DELINEATION. 2 13 1. The department shall adopt wetland maps for the state. 2 14 In this effort, the department may utilize on an interim or 2 15 longer term basis national wetland inventory maps for all or a 2 16 portion of the state. The department may also use maps 2 17 prepared by other groups or organizations or undertake 2 18 independent mapping with federal or state agencies, local 2 19 governments, or other groups or organizations. The department 2 20 may separately adopt wetland maps for various regions of the 2 21 state. 2 22 2. The department shall adopt guidance documents for the 2 23 delineation of wetlands. The department may adopt the 1987 2 24 manual for the delineation of jurisdictional wetlands by the 2 25 corps of engineers or prepare another guidance document. 2 26 3. The department shall, upon the written request of a 2 27 landowner whose land may be included in a regulated wetland, 2 28 delineate more precisely the wetland boundary line on the land 2 29 applying delineation criteria. The department may request 2 30 information from the landowner or other agencies or 2 31 organizations to assist such a delineation effort. 2 32 Sec. 5. NEW SECTION. 456B.25 PERMIT APPLICATION – 2 33 PROCESS – REVOCATION. 2 34 1. A person shall not conduct or cause a regulated 2 35 activity within a wetland without a permit issued by the 3 1 department. A person proposing to conduct or cause such an 3 2 activity to be conducted shall file an application with the 3 3 department for a permit and shall, at the same time, submit a 3 4 copy of the application to the city or county in which the 3 5 wetland is located. Within ten days of filing the permit 3 6 application with the department, the applicant shall provide 3 7 written notice of the permit application to the owners of 3 8 property adjacent to the wetland and shall cause a notice of 3 9 the permit application to be published in a newspaper of 3 10 general circulation in the county or city where the wetland is 3 11 located. 3 12 2. A permit application shall include, but not be limited 3 13 to, all of the following information: 3 14 a. A map of the area which will be affected by the 3 15 activity, including wetland and water boundaries for areas 3 16 affected and existing uses and structures. 3 17 b. A description of the proposed activity, including its 3 18 purpose, the location and dimensions of any structures, 3 19 grading or fills, drainage, roads, sewer and water supply, 3 20 parking lots, stormwater facilities, discharge of pollutants, 3 21 and onsite waste disposal. 3 22 c. A description of any public benefit to be derived from 3 23 the proposed project. 3 24 d. A description with a sketch map of the entire parcel 3 25 owned by the applicant and the location of the wetland on the 3 26 parcel. 3 27 e. A description of any natural hazards at the site, 3 28 including flood, erosion, and soil-bearing capacity hazards, 3 29 and how the applicant will avoid increasing hazards on 3 30 adjacent lands or avoid hazard losses associated with the 3 31 proposed activity. 3 32 f. An explanation of why the proposed activity cannot be 3 33 located at other sites and why other alternatives cannot be 3 34 used to fulfill the desired purpose of the proposed activity. 3 35 g. The names and addresses of adjacent landowners as 4 1 determined by the current tax assessment roles and a 4 2 description of adjacent uses and their distance from the 4 3 proposed activity. 4 4 h. The proposed measures to reduce the impact of the 4 5 proposed activity on wetland functions and values and to 4 6 compensate for impacts. 4 7 3. The department may require additional permit 4 8 application information when such information is needed to 4 9 determine the compliance of the proposed activity with 4 10 criteria for issuance of a permit provided in section 456B.26. 4 11 4. Upon receipt of a permit application, the department 4 12 shall notify, within ten days, other federal and state 4 13 agencies and local governments which may have jurisdiction 4 14 over the proposed activity. These entities shall have thirty 4 15 days to provide comments to the department regarding the 4 16 permit application. 4 17 5. The department shall hold a public hearing relating to 4 18 the permit application if the proposed activity may have a 4 19 significant impact upon wetland resources or the department 4 20 believes that a public hearing is otherwise necessary. 4 21 6. The department shall issue, conditionally issue, or 4 22 deny a permit application within ninety days of the receipt of 4 23 an application unless the permit applicant has failed to 4 24 supply needed information or additional information gathering 4 25 is needed to determine the compliance of the permit with 4 26 regulatory criteria. 4 27 7. In issuing a permit, the department may impose 4 28 conditions or limitations required to carry out the permit 4 29 criteria. The department may require a bond in an amount and 4 30 with surety and conditions sufficient to secure compliance 4 31 with the conditions and limitations provided in the permit. 4 32 8. The department may suspend or revoke a permit if the 4 33 department finds that the applicant has not complied with the 4 34 conditions or limitations set forth in the permit. The 4 35 department may revoke a permit for obtaining a permit by 5 1 misrepresentation or failing to disclose relevant facts. 5 2 Sec. 6. NEW SECTION. 456B.26 CRITERIA FOR PERMITS. 5 3 1. The department shall issue a proposed permit if the 5 4 department finds that the permit is in the public interest. 5 5 In determining whether a proposed activity is in the public 5 6 interest, the department shall consider the goals of this 5 7 subchapter and any more specific criteria for the permit 5 8 issuance adopted by the department. The department shall 5 9 consider the need for the proposed activity and the impact on 5 10 the landowner of permit denial. In order to issue a permit, 5 11 the department must make an affirmative finding regarding all 5 12 of the following: 5 13 a. There will be no net loss of wetland function or 5 14 acreage. 5 15 b. There are no practical alternatives to the proposed 5 16 activity. 5 17 c. The proposed activity will not be subject to flooding, 5 18 erosion, soil limitations, on-site waste disposal, or other 5 19 hazards that will threaten adjacent landowners or the public. 5 20 d. The proposed activity will not violate pollution 5 21 control standards, or violate other federal, state, or local 5 22 laws and regulations. 5 23 e. The proposed activity will not otherwise threaten 5 24 health and safety, result in fraud, cause nuisances, impair 5 25 public rights to the enjoyment and use of public waters, or 5 26 threaten a rare or endangered plant, animal, or ecosystem. 5 27 2. In evaluating the impact of the proposed permit, the 5 28 department shall consider the cumulative effects of existing 5 29 and reasonably anticipated future uses similar to the use 5 30 proposed in the permit application upon wetland resources. 5 31 The department shall consider any irreversible and 5 32 irretrievable commitment of resources that will result from 5 33 the proposed activity, and the relationship between short-term 5 34 uses of the environment and the maintenance and enhancement of 5 35 long-term productivity. The department shall consider any 6 1 proposed impact reduction and compensation measures after 6 2 determining that there are no practical alternatives to the 6 3 proposed activity. 6 4 3. If a permit applicant proposes wetland restoration, 6 5 creation, or enhancement to compensate for damage to a 6 6 wetland, the department shall consider the risk of failure of 6 7 any such impact reduction or compensation measures and may 6 8 require, if such risks are great, that the permit applicant 6 9 implement compensation measures prior to undertaking the 6 10 proposed activity. In deciding whether the compensation ratio 6 11 proposed by the permit applicant is sufficient to provide no 6 12 net loss of wetland functions or acreage, the department shall 6 13 consider all of the following: 6 14 a. The sensitivity of the wetland type. 6 15 b. The success of other efforts to restore this wetland 6 16 type. 6 17 c. The length of time it will take before a compensation 6 18 wetland will become fully functioning. 6 19 d. The degree of difficulty which will be encountered in 6 20 creating or restoring wetland hydrology in this setting. 6 21 e. The adequacy of the overall project design. 6 22 f. The threats, if any, posed to the compensation wetland 6 23 by pollution or other activities. 6 24 g. The adequacy of proposed protection and management 6 25 measures for the proposed compensation wetland. 6 26 h. The extent to which monitoring and mid-course 6 27 correction capabilities are proposed. 6 28 i. The extent to which bonds or other assurances are 6 29 provided to ensure long-term success. 6 30 j. Any other factors the department believes to be 6 31 relevant. 6 32 Sec. 7. NEW SECTION. 456B.27 APPEALS. 6 33 An action of the department relating to the issuance of a 6 34 permit under this part may be appealed to the commission by 6 35 the applicant if the appeal is taken within thirty days of the 7 1 action being appealed. The appeal shall be conducted as a 7 2 contested case pursuant to chapter 17A. A final action or 7 3 order of the commission is subject to judicial review pursuant 7 4 to chapter 17A. 7 5 Sec. 8. NEW SECTION. 456B.28 ENFORCEMENT – PENALTIES. 7 6 1. A person who violates any provision of this subchapter 7 7 shall be subject to a civil penalty not to exceed five 7 8 thousand dollars for each day of the violation. 7 9 2. In the event of a violation, the department may order 7 10 restoration of the wetland area and seek a court injunction to 7 11 compel compliance. If a violator does not restore a wetland 7 12 within a reasonable time of an order to do so, the department 7 13 may restore the wetland to its condition prior to the 7 14 violation and the violator shall be liable to the department 7 15 for the cost of restoration. 7 16 3. A monetary penalty assessed pursuant to this section, 7 17 including costs of wetland restoration, shall be recorded with 7 18 the clerk of the district court as a lien against the land and 7 19 shall not be removed until the penalty is paid in full. A 7 20 lien under this section is not effective unless the department 7 21 files a notice of lien with the clerk of the district court in 7 22 the county where the wetland is located. 7 23 4. All costs, fees, and expenses in connection with an 7 24 enforcement or restoration action shall be assessed as damages 7 25 against the violator. 7 26 Sec. 9. NEW SECTION. 456B.29 LOCAL REGULATION OF 7 27 WETLANDS – STATE AND LOCAL ROLES. 7 28 1. A city or county may adopt zoning, subdivision control, 7 29 and other wetland protection regulations to achieve the 7 30 objectives provided in this subchapter. In adopting and 7 31 administering such regulations, a city or county is encouraged 7 32 to utilize the wetland definition provided in this subchapter 7 33 and wetland delineation criteria developed by the department 7 34 pursuant to section 456B.24. 7 35 2. A city or county with wetland regulations which are as 8 1 restrictive or more restrictive than those of the state may 8 2 apply to the department for permission to issue all or a 8 3 portion of the wetland permits within the city's or county's 8 4 jurisdiction in lieu of the permitting procedure provided in 8 5 this subchapter. The department may authorize a local 8 6 government to issue all or a portion of the wetland permits 8 7 within the city's or county's jurisdiction in lieu of the 8 8 permitting procedure if the department finds that the local 8 9 government has wetland regulations which are as restrictive or 8 10 more restrictive than those of the state and the local 8 11 government has adequate administration and enforcement 8 12 mechanisms. The department shall continue to review permit 8 13 applications for activities which may affect wetlands of more 8 14 than one city or county. The department may withdraw approval 8 15 for local issuance of wetland permits if the department finds 8 16 the local government has failed to administer or enforce 8 17 regulations as restrictive or more restrictive than those of 8 18 the state. 8 19 Sec. 10. NEW SECTION. 456B.30 RESTORATION AND CREATION 8 20 – USE OF MITIGATION BANKS. 8 21 1. The department shall encourage private landowners, 8 22 local governments, other state agencies, land trusts, and any 8 23 other persons to restore wetlands in order to achieve the 8 24 long-term goal of net gain in wetland resources. The 8 25 department shall provide technical assistance to a private 8 26 landowner, local government, other state agency, land trust, 8 27 or other person planning and carrying out a restoration 8 28 project. The department shall identify possible restoration 8 29 sites in cooperation with other entities. The department 8 30 shall adopt guidelines and educational materials for 8 31 restoration projects and may carry out restoration research 8 32 and demonstration projects. 8 33 2. The department may authorize, in appropriate 8 34 circumstances, applicants for permits under this subchapter to 8 35 utilize wetland mitigation banks to compensate for loss of 9 1 wetland functions where there is not a practical onsite 9 2 alternative and use of a wetland mitigation bank will provide 9 3 a net benefit in wetland functions or acreage. However, 9 4 permit applicants shall not be permitted to use a wetland 9 5 mitigation bank if such use will result in increased water 9 6 pollution, flooding, increased erosion, or other nuisances or 9 7 hazards at the permit application site. A permit applicant 9 8 shall not use a wetland mitigation bank if a landowner or the 9 9 ecosystem near the permit application site will suffer 9 10 significant losses in wetland function. The department may 9 11 permit some combination of onsite impact reduction and 9 12 compensation measures and the use of an offsite mitigation 9 13 bank to avoid losses or problems. 9 14 Sec. 11. NEW SECTION. 456B.31 RULES. 9 15 The commission shall adopt rules pursuant to chapter 17A 9 16 necessary to implement this subchapter. 9 17 Sec. 12. Section 427.1, subsection 23, unnumbered 9 18 paragraph 1, Code Supplement 2001, is amended to read as 9 19 follows: 9 20 Land designated as native prairie or land designated as a 9 21 protected wetland by the department of natural resources 9 22 pursuant tosection 456B.12chapter 456B, subchapter 2. 9 23 Application for the exemption shall be made on forms provided 9 24 by the department of revenue and finance. Land designated as 9 25 a protected wetland shall be assessed at a value equal to the 9 26 average value of the land where the wetland is located and 9 27 which is owned by the person granted the exemption. The 9 28 application forms shall be filed with the assessing authority 9 29 not later than the first of February of the year for which the 9 30 exemption is requested. The application must be accompanied 9 31 by an affidavit signed by the applicant that if the exemption 9 32 is granted, the property will not be used for economic gain 9 33 during the assessment year in which the exemption is granted. 9 34 If the property is used for economic gain during the 9 35 assessment year in which the exemption is granted, the 10 1 property shall lose its tax exemption and shall be taxed at 10 2 the rate levied by the county for the fiscal year beginning in 10 3 that assessment year. The first annual application shall be 10 4 accompanied by a certificate from the department of natural 10 5 resources stating that the land is native prairie or protected 10 6 wetland. The department of natural resources shall issue a 10 7 certificate for the native prairie exemption if the department 10 8 finds that the land has never been cultivated, is unimproved, 10 9 is primarily a mixture of warm season grasses interspersed 10 10 with flowering plants, and meets the other criteria 10 11 established by the natural resource commission for native 10 12 prairie. The department of natural resources shall issue a 10 13 certificate for the wetland exemption if the department finds 10 14 the land is a protected wetland, as defined under section 10 15 456B.1, or if the wetland was previously drained and cropped 10 16 but has been restored under a nonpermanent restoration 10 17 agreement with the department or other county, state, or 10 18 federal agency or private conservation group. A taxpayer may 10 19 seek judicial review of a decision of the department according 10 20 to chapter 17A. The natural resource commission shall adopt 10 21 rules to implement this subsection. 10 22 Sec. 13. Section 654A.16, Code 2001, is amended to read as 10 23 follows: 10 24 654A.16 WETLAND DESIGNATION. 10 25 The farm mediation service shall provide for mediation 10 26 between the department of natural resources and a landowner 10 27 affected by the preliminary wetland designation provided in 10 28section 456B.12chapter 456B, subchapter 2. The department 10 29 shall cease actions relating to inventorying or designating 10 30 affected land until a mediation release is issued by the farm 10 31 mediation service. The mediation process shall be conducted 10 32 according to rules adopted by the attorney general after 10 33 consultation with the farm mediation service. The rules shall 10 34 to the extent practical be based on mediation provided under 10 35 this chapter for borrowers and lenders. 11 1 Sec. 14. Sections 456B.12, 456B.13, and 456B.14, Code 11 2 2001, are repealed. 11 3 EXPLANATION 11 4 This bill repeals current statutes relating to the 11 5 inventory and protection of wetlands, makes conforming 11 6 amendments, and replaces them with a more comprehensive 11 7 wetland program. 11 8 The bill requires the department of natural resources to 11 9 create and administer a wetland program. The bill provides 11 10 that, in carrying out the program, the department shall adopt 11 11 wetland maps; provide technical assistance and training to 11 12 assist local governments in developing wetland protection and 11 13 restoration programs and to assist local governments in 11 14 integrating wetland protection and restoration into 11 15 comprehensive land planning and management efforts including 11 16 floodplain and stormwater management, pollution control, 11 17 source water planning, greenway, open space, and other 11 18 efforts; adopt procedures and criteria for approval of local 11 19 government wetland regulatory programs in lieu of direct state 11 20 permitting; encourage and provide guidance with regard to the 11 21 restoration of wetlands; and adopt joint permit processing 11 22 procedures with other federal and state agencies and local 11 23 governments with jurisdiction over wetlands and take other 11 24 measures to improve coordination and reduce duplication 11 25 between the department and other federal and state agencies 11 26 and local governments. 11 27 The bill provides that the department shall adopt wetland 11 28 maps for the state. The bill provides that the department 11 29 shall adopt guidance documents for delineation of wetlands and 11 30 that the department may adopt the 1987 manual for the 11 31 delineation of jurisdictional wetlands by the corps of 11 32 engineers or prepare another guidance document. The bill 11 33 provides that the department shall, upon the written request 11 34 of a landowner whose land may be included in a regulated 11 35 wetland, delineate more precisely the wetland boundary line on 12 1 the land applying delineation criteria. 12 2 The bill provides that a person shall not conduct or cause 12 3 a regulated activity to be conducted within a wetland without 12 4 a permit issued by the department. The bill provides for 12 5 procedures that must be followed during the permit application 12 6 process, including providing public notice, notification of 12 7 federal, state, and local governmental entities, and holding a 12 8 public hearing. The bill provides that the department shall 12 9 issue, conditionally issue, or deny a permit application 12 10 within 90 days of the receipt of an application unless the 12 11 permit application has failed to supply needed information or 12 12 additional information gathering is needed to determine the 12 13 compliance of the permit with regulatory criteria. The bill 12 14 provides that, in issuing a permit, the department may impose 12 15 conditions or limitations required to carry out the permit 12 16 criteria. The bill provides that the department may require a 12 17 bond in an amount and with surety and conditions sufficient to 12 18 secure compliance with the conditions and limitations provided 12 19 in the permit. The bill provides that the department may 12 20 suspend or revoke a permit if the department finds that the 12 21 applicant has not complied with the conditions or limitations 12 22 set forth in the permit. The department may also revoke a 12 23 permit for obtaining a permit by misrepresentation or failing 12 24 to disclose relevant facts. 12 25 The bill provides that the department shall issue a 12 26 proposed permit if the department finds that the permit is in 12 27 the public interest. The bill provides that, in order to 12 28 issue a permit, the department must make an affirmative 12 29 finding that there will be no net loss of wetland function and 12 30 acreage; there are no practical alternatives to the proposed 12 31 activity; the proposed activity will not be subject to hazards 12 32 that will threaten adjacent landowners or the public; the 12 33 proposed activity will not violate pollution control standards 12 34 or other laws and regulations; and the proposed activity will 12 35 not otherwise threaten health and safety, result in fraud, 13 1 cause nuisances, impair public rights to the enjoyment and use 13 2 of public waters, or threaten a rare or endangered plant, 13 3 animal, or ecosystem. The bill provides that if a permit 13 4 applicant proposes wetland restoration, creation, or 13 5 enhancement to compensate for damage to a wetland, the 13 6 department shall consider the risk of failure of any such 13 7 impact reduction or compensation measures and may require, if 13 8 such risks are great, that the permit applicant implement 13 9 compensation measures prior to undertaking the proposed 13 10 activity. 13 11 The bill provides that an action of the department relating 13 12 to the issuance of a permit under the bill may be appealed to 13 13 the natural resource commission by the applicant if the appeal 13 14 is taken within 30 days of the action being appealed. The 13 15 bill provides that an appeal shall be conducted as a contested 13 16 case pursuant to Code chapter 17A and that a final action or 13 17 order of the commission is subject to judicial review pursuant 13 18 to Code chapter 17A. 13 19 The bill provides that a person who violates any provision 13 20 of the bill shall be subject to a civil penalty not to exceed 13 21 $5,000 for each day of the violation. The bill provides that, 13 22 in the event of a violation, the department may order 13 23 restoration of the wetland area and seek a court injunction to 13 24 compel compliance. The bill provides that any monetary 13 25 penalty assessed, including costs of wetland restoration, 13 26 shall be recorded with the clerk of the district court as a 13 27 lien against the land and shall not be removed until the 13 28 penalty is paid in full. The bill provides that all costs, 13 29 fees, and expenses in connection with an enforcement or 13 30 restoration action shall be assessed as damages against the 13 31 violator. 13 32 The bill provides that a city or county may adopt zoning, 13 33 subdivision control, and other wetland protection regulations 13 34 to achieve the objectives of the bill. The bill provides that 13 35 a city or county with wetland regulations which are as 14 1 restrictive or more restrictive than those of the state may 14 2 apply to the department for permission to issue all or a 14 3 portion of the wetland permits within the city's or county's 14 4 jurisdiction in lieu of the permitting procedure of the 14 5 department. The bill provides that the department may 14 6 withdraw approval for local issuance of wetland permits if the 14 7 department finds the local government has failed to administer 14 8 or enforce regulations as restrictive or more restrictive than 14 9 those of the state. 14 10 The bill provides that the department shall encourage 14 11 private landowners, local governments, other state agencies, 14 12 land trusts, and any other persons to restore wetlands in 14 13 order to achieve the long-term goal of net gain in wetland 14 14 resources. The bill provides that the department shall 14 15 provide technical assistance to a private landowner, local 14 16 government, other state agency, land trust, or other person 14 17 planning and carrying out a restoration project. The bill 14 18 provides that the department shall identify possible 14 19 restoration sites in cooperation with other entities. The 14 20 bill provides that the department shall adopt guidelines and 14 21 educational materials for restoration projects and may carry 14 22 out restoration research and demonstration projects. The bill 14 23 provides that the department may authorize, in appropriate 14 24 circumstances, permit applicants to utilize wetland mitigation 14 25 banks to compensate for loss of wetland functions where there 14 26 is not a practical onsite alternative and use of a wetland 14 27 mitigation bank will provide a net benefit in wetland 14 28 functions and acreage. 14 29 LSB 5674HH 79 14 30 tm/cf/24.1
Text: HF02412 Text: HF02414 Text: HF02400 - HF02499 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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