House File 350 - Introduced HOUSE FILE 350 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 1557YH (2) 88 da/rn

H.F. 350 DIVISION I 1 ELECTIONS 2 Section 1. Section 161A.5, subsection 2, Code 2019, is 3 amended to read as follows: 4 2. a. The governing body of each district at large shall 5 consist of five commissioners elected 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. 9 b. Any eligible elector residing in the district is 10 eligible to the office of commissioner , except that not more 11 than two commissioners shall at any one time be a resident of 12 any one township . A vacancy is created in the office of any 13 commissioner who changes residence into a township where two 14 commissioners then reside. 15 c. If a commissioner is absent for sixty or more percent 16 of monthly meetings during any twelve-month period, the other 17 commissioners by their unanimous vote may declare the member’s 18 office vacant. A vacancy in the office of commissioner shall 19 be filled by appointment of the committee remaining district 20 commissioners until the next succeeding general election , . The 21 new appointee shall not serve out any unexpired time of term 22 beyond the next succeeding general election, at which time the 23 balance of the unexpired term shall be filled as provided by 24 section 69.12 . Appointees to unexpired terms may choose to 25 stand for election at the next succeeding general election. 26 The committee shall not name or otherwise have authority to 27 approve a commissioner appointment to fill unexpired terms. 28 Sec. 2. Section 161A.5, subsection 3, paragraph e, Code 29 2019, is amended by striking the paragraph. 30 DIVISION II 31 SOIL LOSS LIMITS 32 Sec. 3. Section 161A.44, unnumbered paragraph 1, Code 2019, 33 is amended to read as follows: 34 The commissioners of each district shall , with approval 35 -1- LSB 1557YH (2) 88 da/rn 1/ 11

H.F. 350 of and within time limits set by administrative order of the 1 committee, adopt any reasonable regulations as are regulation 2 deemed necessary to establish a soil loss limit or limits for 3 the district and provide for the implementation of the soil 4 loss limit or limits . A district may subsequently amend or 5 repeal its regulations a regulation as it deems necessary. 6 However, a soil loss limit shall not exceed five tons per 7 acre occurring within any twelve-month period. The committee 8 shall review the soil loss limit regulations adopted by the 9 districts commissioners at least once every five years, and 10 shall recommend changes in the regulations of a district which 11 the committee deems necessary to assure that the district’s 12 soil loss limits are limit is reasonable and attainable. The 13 adoption, amendment, or repeal of a regulation shall not take 14 effect until after a public hearing on the matter is conducted 15 pursuant to section 161A.45. The commissioners may: 16 Sec. 4. Section 161A.45, Code 2019, is amended to read as 17 follows: 18 161A.45 Submission of regulations to committee —— hearing. 19 1. Regulations A regulation, other than a regulation 20 establishing soil loss limits, which the commissioners propose 21 to adopt, amend, or repeal shall be submitted to the committee, 22 in a form prescribed by the committee, for its the committee’s 23 approval. The committee may approve the regulations any 24 regulation as submitted, or with amendments any related 25 amendment as it the committee deems necessary. 26 2. The commissioners shall, and after committee approval 27 if necessary , publish notice of a hearing on the any proposed 28 regulations, as approved, regulation under section 161A.44 in 29 a newspaper of general circulation in the district, setting a 30 date and time not less than ten nor more than thirty days after 31 the publication when a hearing on the proposed regulations 32 regulation will be held at a specified place. The notice shall 33 include the full text of the proposed regulations regulation 34 or shall state that the proposed regulations are regulation is 35 -2- LSB 1557YH (2) 88 da/rn 2/ 11

H.F. 350 on file and available for review at the office of the affected 1 soil and water conservation district. 2 Sec. 5. Section 161A.46, Code 2019, is amended to read as 3 follows: 4 161A.46 Conduct of hearing. 5 At the hearing, the commissioners or their designees shall 6 explain, in reasonable detail, the reasons why the adoption, 7 amendment, or repeal of the regulations a regulation is 8 deemed necessary or advisable. Any landowner, or any occupant 9 of land who would be affected by the regulations proposed 10 regulation , shall be afforded an opportunity to be heard 11 for or against the proposed regulations regulation . At the 12 conclusion of the hearing, the commissioners shall announce 13 and enter of record their decision whether to adopt or modify 14 the proposed regulations regulation . Any modification , other 15 than establishing soil loss limits, must be approved by the 16 committee, which may at its discretion order the commissioners 17 to republish the regulations regulation and hold another 18 hearing in the manner prescribed by this chapter . 19 Sec. 6. Section 161A.47, Code 2019, is amended to read as 20 follows: 21 161A.47 Inspection of land on complaint —— administrative 22 order . 23 1. a. The commissioners shall inspect or cause to be 24 inspected any land located within the district to determine 25 find if land is being damaged by sediment, from there exists 26 credible evidence of significant soil loss caused by erosion 27 occurring on neighboring that land in excess of the limits 28 established by the district’s soil erosion control regulations 29 or neighboring land . If the land is privately owned, the The 30 commissioners shall make or cause to be made the inspection , 31 upon receiving a under any of the following circumstances: 32 (1) Receipt of a written complaint signed by an owner , 33 lessee, or occupant of land claiming that the owner’s or , 34 lessee’s, or occupant’s land is being damaged by sediment 35 -3- LSB 1557YH (2) 88 da/rn 3/ 11

H.F. 350 erosion occurring on neighboring land . If the land is subject 1 to a public interest, the commissioners shall make or cause to 2 be made the inspection upon a 3 (2) Receipt of a written complaint by any person, if the 4 complaint contains allegations or information that would cause 5 a reasonable person to conclude that significant soil loss 6 caused by erosion has occurred. 7 (3) A majority vote of commissioners at an open meeting held 8 pursuant to chapter 21 . Land is subject to a public interest 9 if the land is publicly held, subject to an easement held by 10 the public, or the subject of an improvement made at public 11 expense. 12 (4) By the discretionary authority of the commissioners as 13 provided in section 161A.61. 14 b. The commissioners shall establish criteria to determine 15 what constitutes credible evidence of significant soil loss 16 based on the soil loss limits established for the district. 17 2. If, after the inspection, the commissioners find that 18 sediment damages are occurring to land which is owned or 19 occupied by the person filing the complaint or subject to a 20 public interest, and that excess soil erosion is occurring 21 on neighboring land soil loss exceeding the soil loss limits 22 for the land in question , the commissioners shall issue 23 an administrative order . The administrative order shall 24 describe the commissioners’ findings, including the cause of 25 the significant soil loss, the extent to which the soil loss 26 exceeds the soil loss limits, the location of the erosion, 27 and whether land has been damaged by soil loss due to erosion 28 occurring on neighboring land. The administrative order 29 shall be delivered to the persons responsible for causing the 30 significant soil loss, including each landowner or landowners 31 of record, lessee of the land, and to the occupant of the land , 32 if known to the commissioners. The order shall describe the 33 land and state as nearly as possible the extent to which soil 34 erosion on the land exceeds the limits established by the 35 -4- LSB 1557YH (2) 88 da/rn 4/ 11

H.F. 350 district’s regulations. Upon request, the commissioners shall 1 deliver a copy of the administrative order to the owner of any 2 land damaged by erosion occurring on neighboring land. The 3 administrative 4 3. The order shall be delivered either by personal service 5 or by restricted certified mail to each of the persons to whom 6 it is directed , and shall: . 7 3. The administrative order shall establish a compliance 8 period as follows: 9 a. In the case of erosion occurring on the site of any 10 a construction project or similar undertaking involving the 11 removal of all or a major portion of the vegetation or other 12 cover , and exposing bare soil directly to water or wind, state 13 a time not more than five days after service or mailing of 14 the notice of the order when work necessary to establish or 15 maintain all erosion control practices must be commenced , and a 16 time not more than thirty days after service or mailing of the 17 notice of the order when the not later than five days after the 18 administrative order has been delivered. The work is to must 19 be satisfactorily completed not later than thirty days after 20 the administrative order has been delivered . 21 b. In all other cases, state a time not more than six 22 months after service or mailing of the notice of the order, 23 by which work needed necessary to establish or maintain the 24 all necessary soil and water conservation practices or erosion 25 control measures practices must be commenced , and a time not 26 more than one year after the service or mailing of the notice 27 of the order when the work is to be satisfactorily completed 28 and satisfactorily completed not later than one year after 29 the administrative order has been delivered , unless the 30 requirements of the administrative order are superseded by the 31 provisions of section 161A.48 . 32 Sec. 7. Section 161A.48, subsection 2, Code 2019, is amended 33 to read as follows: 34 2. Evidence that an application for cost-share or other 35 -5- LSB 1557YH (2) 88 da/rn 5/ 11

H.F. 350 public moneys, from a source or sources having authority to 1 pay a portion of the cost of work needed to comply with an 2 administrative order issued pursuant to section 161A.47 , has 3 been submitted to the proper officer or agency constitutes 4 commencement of the work within the meaning of sections 161A.43 5 through 161A.53 . The commissioners shall give preference to 6 applications that seek to comply with an administrative order 7 issued pursuant to section 161A.47. 8 Sec. 8. Section 161A.49, Code 2019, is amended to read as 9 follows: 10 161A.49 Petition for court order Administrative order —— 11 noncompliance . 12 The commissioners shall petition the district court for a 13 court order requiring immediate compliance with an Upon the 14 expiration of the compliance period for an administrative order 15 previously issued by the commissioners as provided in section 16 161A.47 , if the person to whom the order is directed shall be 17 deemed to be in noncompliance if any of the following apply : 18 1. The work necessary to comply with the administrative 19 order is has not commenced on or before the date specified 20 in such order, or in any supplementary order subsequently 21 issued as provided in section 161A.48 , unless . However, 22 this subsection does not apply if, in the judgment of the 23 commissioners , the failure to commence or complete the work 24 as required by the administrative order is due to factors 25 beyond the control of the person or persons to whom such order 26 is directed and the person or persons can be relied upon to 27 commence and complete the necessary work at the earliest 28 possible time. 29 2. Such The work is not being performed with due diligence, 30 or is not satisfactorily completed by the date specified in 31 the administrative order, or when completed does not reduce 32 soil erosion from such the land below the applicable soil 33 loss limits established by the soil and water conservation 34 district’s regulations. 35 -6- LSB 1557YH (2) 88 da/rn 6/ 11

H.F. 350 3. The person or persons to whom the administrative order is 1 directed advise have advised the commissioners that they do not 2 intend to commence or complete such work. 3 Sec. 9. NEW SECTION . 161A.49A Administrative order —— 4 referral or petition to enforce. 5 1. a. Upon the expiration of the compliance period 6 described in sections 161A.47 and 161A.48, the commissioners 7 shall enforce the administrative order against a person who 8 is deemed to be in noncompliance under section 161A.49 by 9 referring the matter to any of the following: 10 (1) The board of supervisors of a county in which the land 11 causing the erosion is located. 12 (2) The attorney general pursuant to section 161A.6. 13 b. The referral shall include a copy of the administrative 14 order and other information required by the recipient. 15 2. The commissioners shall notify any person whose land 16 is damaged by erosion occurring on neighboring land that the 17 compliance period has expired. The person may petition the 18 board of supervisors of the county in which the land causing 19 the erosion is located to take action necessary to enforce 20 the administrative order. The petition shall include a copy 21 of the administrative order and other information required by 22 the board. A copy of the petition must be delivered to the 23 commissioners who issued the administrative order. 24 3. A board of supervisors receiving a referral or petition 25 under this section shall do any of the following: 26 a. Take action necessary to enforce compliance with the 27 administrative order. Upon completion of board action, 28 the board shall deliver a statement to the county treasurer 29 certifying the costs of taking the action plus a penalty equal 30 to five percent of that amount, together with a copy of the 31 administrative order. The total amount due shall be assessed 32 against the property which is the subject of the administrative 33 order, shall be placed upon the county system, and shall be 34 collected in the same manner as ordinary taxes. The amount due 35 -7- LSB 1557YH (2) 88 da/rn 7/ 11

H.F. 350 shall be a lien on the land until paid. 1 b. Refer the matter to the attorney general. 2 Sec. 10. Section 161A.50, Code 2019, is amended to read as 3 follows: 4 161A.50 Burden —— court order Court action . 5 1. Upon the expiration of the compliance period for an 6 administrative order issued by the commissioners as provided in 7 sections 161A.47 through 161A.49, the commissioners, or either 8 a county board of supervisors or attorney general acting upon a 9 referral under section 161A.49A, shall petition the district 10 court to order a person deemed to be in noncompliance with 11 the administrative order under section 161A.49 to immediately 12 comply with the order. 13 2. In any action brought under section 161A.49 subsection 14 1 , the burden of proof shall be upon the commissioners to 15 show that soil erosion is in fact occurring in excess of the 16 applicable soil loss limits and that the defendant has not 17 established or maintained soil and water conservation practices 18 or erosion control practices in compliance with the soil and 19 water conservation district’s regulations. With respect to 20 construction, repair, or maintenance of any public street, 21 road, or highway, evidence that the defendant has met soil 22 erosion control standards equivalent to or in excess of those 23 currently imposed by the United States government on the 24 project or like projects involving use of federal funds shall 25 create a presumption of compliance with the applicable soil 26 loss limit. 27 3. Upon receiving satisfactory proof of the defendant’s 28 noncompliance , the court shall issue an order directing 29 the landowner or landowners defendant to comply with the 30 administrative order previously issued by the commissioners. 31 The court may modify such administrative order if deemed 32 necessary. Notice of the court order shall be given either by 33 personal service or by restricted certified mail to each of the 34 persons to whom the order is directed, who may within thirty 35 -8- LSB 1557YH (2) 88 da/rn 8/ 11

H.F. 350 days from the date of the court order appeal to the supreme 1 court. Any person who fails to comply with a court order 2 issued pursuant to this section within the time specified in 3 such order, unless the order has been stayed pending an appeal, 4 shall be deemed in contempt of court and may be punished 5 accordingly. 6 DIVISION III 7 WATER QUALITY INITIATIVES 8 Sec. 11. Section 161A.4, Code 2019, is amended by adding the 9 following new subsection: 10 NEW SUBSECTION . 8. The committee and division shall 11 establish policies that prioritize the allocation of moneys, 12 personnel, and technical expertise necessary to administer this 13 chapter and chapter 466B to support water quality initiatives 14 sponsored by a watershed management authority as described in 15 section 466B.43. 16 Sec. 12. NEW SECTION . 466B.42A Priority allocations. 17 The state soil conservation committee established in 18 section 161A.4 and the division shall establish policies that 19 prioritize the allocation of moneys, personnel, and technical 20 expertise necessary to administer this chapter and chapter 161A 21 to support water quality initiatives sponsored by a watershed 22 management authority created by two or more soil and water 23 conservation districts under section 466B.22. The highest 24 priority shall be given to support initiatives carried out in 25 high-priority watersheds identified by the water resources 26 coordinating council pursuant to section 466B.3. 27 EXPLANATION 28 The inclusion of this explanation does not constitute agreement with 29 the explanation’s substance by the members of the general assembly. 30 GENERAL. This bill relates to the powers and duties of 31 the five soil commissioners who govern each soil and water 32 conservation district (district) and who are elected to serve 33 four-year terms on a nonpartisan basis. The bill also relates 34 to the powers and duties of a number of other state and local 35 -9- LSB 1557YH (2) 88 da/rn 9/ 11

H.F. 350 entities, including county boards of supervisors (boards), 1 county treasurers, the state soil conservation committee 2 (committee), the soil conservation division of the department 3 of agriculture and land stewardship (division), and the 4 attorney general. 5 ELECTION OF COMMISSIONERS. The bill removes the prohibition 6 against more than one commissioner residing in the same 7 township, requiring only residence within the district to be 8 eligible for election at large to the office of commissioner. 9 Provisions relating to appointments for vacancies in the 10 office of commissioner are changed to allow for appointments 11 to be made by the remaining commissioners, not the state soil 12 conservation committee. The bill specifies that the person 13 appointed does not serve out the full remaining term, but 14 only for the time until the next succeeding general election. 15 Appointed commissioners are then able to stand for election if 16 they so choose. 17 COMMISSIONERS, BOARDS, AND THE ATTORNEY GENERAL —— 18 ESTABLISHING AND ENFORCING SOIL LOSS LIMITS. The commissioners 19 are to establish criteria for determining what constitutes 20 significant soil loss for land located within the district, 21 including soil loss caused by erosion occurring on neighboring 22 land. The commissioners are to adopt a regulation establishing 23 soil loss limits which shall be not more than five tons per 24 acre during any 12-month period. The regulations establishing 25 soil loss limits are no longer required to be approved by the 26 committee. 27 The commissioners must perform an inspection of land located 28 in their district after receipt of a written complaint or upon 29 a majority vote at an open meeting. After the inspection, 30 the commissioners must issue an administrative order against 31 a person if the commissioners find the loss of soil exceeds 32 the soil loss limit for the land in question. The order must 33 describe the commissioners’ findings, be delivered to the 34 person responsible for causing the soil loss, and establish a 35 -10- LSB 1557YH (2) 88 da/rn 10/ 11

H.F. 350 period for compliance with the order. Evidence of compliance 1 with the order includes applying for public moneys, such as 2 cost-share financing, in order to defray a portion of the costs 3 associated with complying with the order. The bill requires 4 the commissioners to give preference to applications which seek 5 to comply with an administrative order. 6 After the compliance period expires, if work to comply 7 with the order is not being performed, the commissioners must 8 enforce the order by referring the matter to the attorney 9 general or the board of supervisors in the county in which 10 the land is located. A person whose land is damaged due to 11 neighboring land’s erosion may also petition the board of 12 supervisors to enforce the order. If the board takes action 13 to enforce compliance with the order, the board must notify 14 the county treasurer of the costs associated with taking its 15 action. The treasurer must enter an amount equal to the costs 16 plus a 5 percent penalty on the tax books, which shall be 17 collected as ordinary taxes and constitutes a lien against 18 the property. However, the board of supervisors may instead 19 refer the matter to the attorney general. The commissioners, 20 or the board or attorney general acting under a referral, must 21 petition the district court to enforce the order. 22 COMMITTEE AND DIVISION —— PRIORITIZING SOIL CONSERVATION 23 EFFORTS AND WATER QUALITY INITIATIVES. The committee and 24 division are to establish policies that prioritize the 25 allocation of moneys, personnel, and technical expertise 26 to support soil conservation efforts (Code chapter 161A), 27 and water quality initiatives as sponsored by a watershed 28 management authority formed by two or more districts (Code 29 section 466B.22). The highest priority is to be given to 30 support efforts in high-priority watersheds identified by the 31 water resources coordinating council (Code section 466B.3). 32 -11- LSB 1557YH (2) 88 da/rn 11/ 11