House File 416 - Introduced HOUSE FILE 416 BY ISENHART A BILL FOR An Act relating to water quality and soil conservation efforts, 1 including election requirements and powers and duties of 2 commissioners of soil and water conservation districts, and 3 related powers and duties of county boards of supervisors, 4 county treasurers, the state soil conservation committee, 5 the department of agriculture and land stewardship’s 6 division of soil and water conservation, and the attorney 7 general. 8 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 9 TLSB 1359YH (7) 87 sr/sc

H.F. 416 DIVISION I 1 ELECTIONS 2 Section 1. Section 161A.5, subsection 2, Code 2017, is 3 amended to read as follows: 4 2. The governing body of each district shall consist of 5 five commissioners elected at large on a nonpartisan basis 6 for staggered four-year terms commencing on the first day 7 of January that is not a Sunday or holiday following their 8 election. Any eligible elector residing in the district is 9 eligible to the office of commissioner , except that no more 10 than one commissioner shall at any one time be a resident 11 of any one township . A vacancy is created in the office of 12 any commissioner who changes residence into a township where 13 another commissioner then resides. If a commissioner is absent 14 for sixty or more percent of monthly meetings during any 15 twelve-month period, the other commissioners by their unanimous 16 vote may declare the member’s office vacant. A vacancy in 17 the office of commissioner shall be filled by appointment 18 of the state soil conservation committee remaining district 19 commissioners until the next succeeding general election , . 20 The new appointee shall not serve out any unexpired time of 21 term beyond the next succeeding general election, at which 22 time the balance of the unexpired term shall be filled as 23 provided by section 69.12 . Appointees to unexpired terms may 24 choose to stand for election at the next succeeding general 25 election. The state soil conservation committee shall not 26 name or otherwise have authority to approve of commissioner 27 appointments to fill unexpired terms. 28 Sec. 2. Section 161A.5, subsection 3, paragraph e, Code 29 2017, is amended by striking the paragraph. 30 DIVISION II 31 SOIL LOSS LIMITS 32 Sec. 3. Section 161A.44, unnumbered paragraph 1, Code 2017, 33 is amended to read as follows: 34 The commissioners of each soil and water conservation 35 -1- LSB 1359YH (7) 87 sr/sc 1/ 11

H.F. 416 district shall , with approval of and within time limits set by 1 administrative order of the state soil conservation committee, 2 adopt any reasonable regulations as are regulation deemed 3 necessary to establish a soil loss limit or limits for the 4 district , and provide for the implementation of the soil loss 5 limit or limits , and may subsequently amend or repeal their 6 regulations a regulation as they deem necessary. However, a 7 soil loss limit shall not exceed five tons per acre occurring 8 within any twelve-month period. The committee shall review 9 the soil loss limit regulations adopted by the soil and water 10 conservation districts commissioners at least once every five 11 years, and shall recommend changes in the regulations of a 12 soil and water conservation district which the committee deems 13 necessary to assure that the district’s soil loss limits are 14 reasonable and attainable. The adoption, amendment, or repeal 15 of a regulation shall not take effect until after a public 16 hearing on the matter is conducted pursuant to section 161A.45. 17 The commissioners may do any of the following : 18 Sec. 4. Section 161A.45, Code 2017, is amended to read as 19 follows: 20 161A.45 Submission of regulations to committee —— hearing. 21 1. Regulations A regulation, other than a regulation 22 establishing soil loss limits, which the commissioners propose 23 to adopt, amend, or repeal shall be submitted to the committee, 24 in a form prescribed by the committee, for its the committee’s 25 approval. The committee may approve the regulations any 26 regulation as submitted, or with amendments any related 27 amendment as it the committee deems necessary. 28 2. The commissioners shall, and after committee approval 29 if necessary , publish notice of a hearing on the any proposed 30 regulations, as approved, regulation under section 161A.44 in 31 a newspaper of general circulation in the district, setting a 32 date and time not less than ten nor more than thirty days after 33 the publication when a hearing on the proposed regulations 34 regulation will be held at a specified place. The notice shall 35 -2- LSB 1359YH (7) 87 sr/sc 2/ 11

H.F. 416 include the full text of the proposed regulations regulation 1 or shall state that the proposed regulations are regulation is 2 on file and available for review at the office of the affected 3 soil and water conservation district. 4 Sec. 5. Section 161A.46, Code 2017, is amended to read as 5 follows: 6 161A.46 Conduct of hearing. 7 At the hearing, the commissioners or their designees shall 8 explain, in reasonable detail, the reasons why the adoption, 9 amendment, or repeal of the regulations a regulation is 10 deemed necessary or advisable. Any landowner, or any occupant 11 of land who would be affected by the regulations proposed 12 regulation , shall be afforded an opportunity to be heard 13 for or against the proposed regulations regulation . At the 14 conclusion of the hearing, the commissioners shall announce 15 and enter of record their decision whether to adopt or modify 16 the proposed regulations regulation . Any modification , other 17 than establishing soil loss limits, must be approved by the 18 committee, which may at its discretion order the commissioners 19 to republish the regulations regulation and hold another 20 hearing in the manner prescribed by this chapter . 21 Sec. 6. Section 161A.47, Code 2017, is amended to read as 22 follows: 23 161A.47 Inspection of land on complaint —— administrative 24 order . 25 1. a. The commissioners shall inspect or cause to be 26 inspected any land located within the district to determine 27 find if land is being damaged by sediment, from there exists 28 credible evidence of significant soil loss caused by erosion 29 occurring on neighboring that land in excess of the limits 30 established by the district’s soil erosion control regulations 31 or neighboring land . If the land is privately owned, the The 32 commissioners shall make or cause to be made the inspection , 33 upon receiving a under any of the following circumstances: 34 (1) Receipt of a written complaint signed by an owner , 35 -3- LSB 1359YH (7) 87 sr/sc 3/ 11

H.F. 416 lessee, or occupant of land claiming that the owner’s or , 1 lessee’s, or occupant’s land is being damaged by sediment 2 erosion occurring on neighboring land . If the land is subject 3 to a public interest, the commissioners shall make or cause to 4 be made the inspection upon a 5 (2) Receipt of a written complaint by any person, if the 6 complaint contains allegations or information that would cause 7 a reasonable person to conclude that significant soil loss 8 caused by erosion has occurred. 9 (3) A majority vote of commissioners at an open meeting held 10 pursuant to chapter 21 . Land is subject to a public interest 11 if the land is publicly held, subject to an easement held by 12 the public, or the subject of an improvement made at public 13 expense. 14 (4) By the discretionary authority of the commissioners as 15 provided in section 161A.61. 16 b. The commissioners shall establish criteria to determine 17 what constitutes credible evidence of significant soil loss 18 based on the soil loss limits established for the district. 19 2. If, after the inspection, the commissioners find that 20 sediment damages are occurring to land which is owned or 21 occupied by the person filing the complaint or subject to a 22 public interest, and that excess soil erosion is occurring 23 on neighboring land soil loss exceeding the soil loss limits 24 for the land in question , the commissioners shall issue 25 an administrative order . The administrative order shall 26 describe the commissioners’ findings, including the cause of 27 the significant soil loss, the extent to which the soil loss 28 exceeds the soil loss limits, the location of the erosion, 29 and whether land has been damaged by soil loss due to erosion 30 occurring on neighboring land. The administrative order 31 shall be delivered to the persons responsible for causing the 32 significant soil loss, including each landowner or landowners 33 of record, lessee of the land, and to the occupant of the land , 34 if known to the commissioners. The order shall describe the 35 -4- LSB 1359YH (7) 87 sr/sc 4/ 11

H.F. 416 land and state as nearly as possible the extent to which soil 1 erosion on the land exceeds the limits established by the 2 district’s regulations. Upon request, the commissioners shall 3 deliver a copy of the administrative order to the owner of any 4 land damaged by erosion occurring on neighboring land. The 5 administrative 6 3. The order shall be delivered either by personal service 7 or by restricted certified mail to each of the persons to whom 8 it is directed , and shall: . 9 3. The administrative order shall establish a compliance 10 period as follows: 11 a. In the case of erosion occurring on the site of any 12 a construction project or similar undertaking involving the 13 removal of all or a major portion of the vegetation or other 14 cover , and exposing bare soil directly to water or wind, state 15 a time not more than five days after service or mailing of 16 the notice of the order when work necessary to establish or 17 maintain all erosion control practices must be commenced , and a 18 time not more than thirty days after service or mailing of the 19 notice of the order when the not later than five days after the 20 administrative order has been delivered. The work is to must 21 be satisfactorily completed not later than thirty days after 22 the administrative order has been delivered . 23 b. In all other cases, state a time not more than six 24 months after service or mailing of the notice of the order, 25 by which work needed necessary to establish or maintain the 26 all necessary soil and water conservation practices or erosion 27 control measures practices must be commenced , and a time not 28 more than one year after the service or mailing of the notice 29 of the order when the work is to be satisfactorily completed 30 and satisfactorily completed not later than one year after 31 the administrative order has been delivered , unless the 32 requirements of the administrative order are superseded by the 33 provisions of section 161A.48 . 34 Sec. 7. Section 161A.48, subsection 2, Code 2017, is amended 35 -5- LSB 1359YH (7) 87 sr/sc 5/ 11

H.F. 416 to read as follows: 1 2. Evidence that an application for cost-share or other 2 public moneys, from a source or sources having authority to 3 pay a portion of the cost of work needed to comply with an 4 administrative order issued pursuant to section 161A.47 , has 5 been submitted to the proper officer or agency constitutes 6 commencement of the work within the meaning of sections 161A.43 7 through 161A.53 . The commissioners shall give preference to 8 applications that seek to comply with an administrative order 9 issued pursuant to section 161A.47. 10 Sec. 8. Section 161A.49, Code 2017, is amended to read as 11 follows: 12 161A.49 Petition for court order Administrative order —— 13 noncompliance . 14 The commissioners shall petition the district court for a 15 court order requiring immediate compliance with an Upon the 16 expiration of the compliance period for an administrative order 17 previously issued by the commissioners as provided in section 18 161A.47 , if the person to whom the order is directed shall be 19 deemed to be in noncompliance if any of the following apply : 20 1. The work necessary to comply with the administrative 21 order is has not commenced on or before the date specified 22 in such order, or in any supplementary order subsequently 23 issued as provided in section 161A.48 , unless . However, 24 this subsection does not apply if, in the judgment of the 25 commissioners , the failure to commence or complete the work 26 as required by the administrative order is due to factors 27 beyond the control of the person or persons to whom such order 28 is directed and the person or persons can be relied upon to 29 commence and complete the necessary work at the earliest 30 possible time. 31 2. Such The work is not being performed with due diligence, 32 or is not satisfactorily completed by the date specified in 33 the administrative order, or when completed does not reduce 34 soil erosion from such the land below the limits applicable 35 -6- LSB 1359YH (7) 87 sr/sc 6/ 11

H.F. 416 soil loss limits established by the soil and water conservation 1 district’s regulations. 2 3. The person or persons to whom the administrative order is 3 directed advise have advised the commissioners that they do not 4 intend to commence or complete such work. 5 Sec. 9. NEW SECTION . 161A.49A Administrative order —— 6 referral or petition to enforce. 7 1. a. Upon the expiration of the compliance period 8 described in sections 161A.47 and 161A.48, the commissioners 9 shall enforce the administrative order against a person who 10 is deemed to be in noncompliance under section 161A.49 by 11 referring the matter to any of the following: 12 (1) The board of supervisors of a county in which the land 13 causing the erosion is located. 14 (2) The attorney general pursuant to section 161A.6. 15 b. The referral shall include a copy of the administrative 16 order and other information required by the recipient. 17 2. The commissioners shall notify any person whose land 18 is damaged by erosion occurring on neighboring land that the 19 compliance period has expired. The person may petition the 20 board of supervisors of the county in which the land causing 21 the erosion is located to take action necessary to enforce 22 the administrative order. The petition shall include a copy 23 of the administrative order and other information required by 24 the board. A copy of the petition must be delivered to the 25 commissioners who issued the administrative order. 26 3. A board of supervisors receiving a referral or petition 27 under this section shall do any of the following: 28 a. Take action necessary to enforce compliance with the 29 administrative order. Upon completion of board action, 30 the board shall deliver a statement to the county treasurer 31 certifying the costs of taking the action plus a penalty equal 32 to five percent of that amount, together with a copy of the 33 administrative order. The total amount due shall be assessed 34 against the property which is the subject of the administrative 35 -7- LSB 1359YH (7) 87 sr/sc 7/ 11

H.F. 416 order, shall be placed upon the county system, and shall be 1 collected in the same manner as ordinary taxes. The amount due 2 shall be a lien on the land until paid. 3 b. Refer the matter to the attorney general. 4 Sec. 10. Section 161A.50, Code 2017, is amended to read as 5 follows: 6 161A.50 Burden —— court order Court action . 7 1. Upon the expiration of the compliance period for an 8 administrative order issued by the commissioners as provided in 9 sections 161A.47 through 161A.49, the commissioners, or either 10 a county board of supervisors or attorney general acting upon a 11 referral under section 161A.49A, shall petition the district 12 court to order a person deemed to be in noncompliance with 13 the administrative order under section 161A.49 to immediately 14 comply with the order. 15 2. In any action brought under section 161A.49 subsection 16 1 , the burden of proof shall be upon the commissioners to 17 show that soil erosion is in fact occurring in excess of the 18 applicable soil loss limits and that the defendant has not 19 established or maintained soil and water conservation practices 20 or erosion control practices in compliance with the soil and 21 water conservation district’s regulations. With respect to 22 construction, repair, or maintenance of any public street, 23 road, or highway, evidence that the defendant has met soil 24 erosion control standards equivalent to or in excess of those 25 currently imposed by the United States government on the 26 project or like projects involving use of federal funds shall 27 create a presumption of compliance with the applicable soil 28 loss limit. 29 3. Upon receiving satisfactory proof of the defendant’s 30 noncompliance , the court shall issue an order directing 31 the landowner or landowners defendant to comply with the 32 administrative order previously issued by the commissioners. 33 The court may modify such administrative order if deemed 34 necessary. Notice of the court order shall be given either by 35 -8- LSB 1359YH (7) 87 sr/sc 8/ 11

H.F. 416 personal service or by restricted certified mail to each of the 1 persons to whom the order is directed, who may within thirty 2 days from the date of the court order appeal to the supreme 3 court. Any person who fails to comply with a court order 4 issued pursuant to this section within the time specified in 5 such order, unless the order has been stayed pending an appeal, 6 shall be deemed in contempt of court and may be punished 7 accordingly. 8 DIVISION III 9 WATER QUALITY INITIATIVES 10 Sec. 11. Section 161A.4, Code 2017, is amended by adding the 11 following new subsection: 12 NEW SUBSECTION . 8. The committee and division shall 13 establish policies that prioritize the allocation of moneys, 14 personnel, and technical expertise necessary to administer this 15 chapter and chapter 466B to support water quality initiatives 16 sponsored by a watershed management authority as described in 17 section 466B.43. 18 Sec. 12. NEW SECTION . 466B.43 Priority allocations. 19 The state soil conservation committee established in 20 section 161A.4 and the division shall establish policies that 21 prioritize the allocation of moneys, personnel, and technical 22 expertise necessary to administer this chapter and chapter 161A 23 to support water quality initiatives sponsored by a watershed 24 management authority created by two or more soil and water 25 conservation districts under section 466B.22. The highest 26 priority shall be given to support initiatives carried out in 27 high-priority watersheds identified by the water resources 28 coordinating council pursuant to section 466B.3. 29 EXPLANATION 30 The inclusion of this explanation does not constitute agreement with 31 the explanation’s substance by the members of the general assembly. 32 GENERAL. This bill relates to the powers and duties of 33 the five soil commissioners who govern each soil and water 34 conservation district (district) and who are elected to serve 35 -9- LSB 1359YH (7) 87 sr/sc 9/ 11

H.F. 416 four-year terms on a nonpartisan basis. The bill also relates 1 to the powers and duties of a number of other state and local 2 entities, including county boards of supervisors (boards), 3 county treasurers, the state soil conservation committee 4 (committee), the soil conservation division of the department 5 of agriculture and land stewardship (division), and the 6 attorney general. 7 ELECTION OF COMMISSIONERS. The bill removes the prohibition 8 against more than one commissioner residing in the same 9 township, requiring only residence within the district to be 10 eligible for election at large to the office of commissioner. 11 Provisions relating to appointments for vacancies in the 12 office of commissioner are changed to allow for appointments 13 to be made by the remaining commissioners, not the state soil 14 conservation committee. The bill specifies that the person 15 appointed does not serve out the full remaining term, but 16 only for the time until the next succeeding general election. 17 Appointed commissioners are then able to stand for election if 18 they so choose. 19 COMMISSIONERS, BOARDS, AND THE ATTORNEY GENERAL —— 20 ESTABLISHING AND ENFORCING SOIL LOSS LIMITS. The commissioners 21 are to establish criteria for determining what constitutes 22 significant soil loss for land located within the district, 23 including soil loss caused by erosion occurring on neighboring 24 land. The commissioners are to adopt a regulation establishing 25 soil loss limits which shall be not more than five tons per 26 acre during any 12-month period. The regulations establishing 27 soil loss limits are no longer required to be approved by the 28 committee. 29 The commissioners must perform an inspection of land located 30 in their district after receipt of a written complaint or upon 31 a majority vote at an open meeting. After the inspection, 32 the commissioners must issue an administrative order against 33 a person if the commissioners find the loss of soil exceeds 34 the soil loss limit for the land in question. The order must 35 -10- LSB 1359YH (7) 87 sr/sc 10/ 11

H.F. 416 describe the commissioners’ findings, be delivered to the 1 person responsible for causing the soil loss, and establish a 2 period for compliance with the order. Evidence of compliance 3 with the order includes applying for public moneys, such as 4 cost-share financing, in order to defray a portion of the costs 5 associated with complying with the order. The bill requires 6 the commissioners to give preference to applications which seek 7 to comply with an administrative order. 8 After the compliance period expires, if work to comply 9 with the order is not being performed, the commissioners must 10 enforce the order by referring the matter to the attorney 11 general or the board of supervisors in the county in which 12 the land is located. A person whose land is damaged due to 13 neighboring land’s erosion may also petition the board of 14 supervisors to enforce the order. If the board takes action 15 to enforce compliance with the order, the board must notify 16 the county treasurer of the costs associated with taking its 17 action. The treasurer must enter an amount equal to the costs 18 plus a 5 percent penalty on the tax books, which shall be 19 collected as ordinary taxes and constitutes a lien against 20 the property. However, the board of supervisors may instead 21 refer the matter to the attorney general. The commissioners, 22 or the board or attorney general acting under a referral, must 23 petition the district court to enforce the order. 24 COMMITTEE AND DIVISION —— PRIORITIZING SOIL CONSERVATION 25 EFFORTS AND WATER QUALITY INITIATIVES. The committee and 26 division are to establish policies that prioritize the 27 allocation of moneys, personnel, and technical expertise 28 to support soil conservation efforts (Code chapter 161A), 29 and water quality initiatives as sponsored by a watershed 30 management authority formed by two or more districts (Code 31 section 466B.43). The highest priority is to be given to 32 support efforts in high-priority watersheds identified by the 33 water resources coordinating council (Code section 466B.3). 34 -11- LSB 1359YH (7) 87 sr/sc 11/ 11