HF 350 (LSB 1557YH (2) 88)

HOUSE FILE 350

BY  ISENHART

A BILL FOR

An Act relating to water quality and soil conservation efforts, including election requirements and powers and duties of commissioners of soil and water conservation districts, and related powers and duties of county boards of supervisors, county treasurers, the state soil conservation committee, the department of agriculture and land stewardship’s division of soil and water conservation, and the attorney general.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

DIVISION I
ELECTIONS
    Section 1.  Section 161A.5, subsection 2, Code 2019, is amended to read as follows:
   2.  a.  The governing body of each district at large shall consist of five commissioners elected on a nonpartisan basis for staggered four-year terms commencing on the first day of January that is not a Sunday or holiday following their election.
   b.  Any eligible elector residing in the district is eligible to the office of commissioner, except that not more than two commissioners shall at any one time be a resident of any one township. A vacancy is created in the office of any commissioner who changes residence into a township where two commissioners then reside.
   c.  If a commissioner is absent for sixty or more percent of monthly meetings during any twelve-month period, the other commissioners by their unanimous vote may declare the member’s office vacant. A vacancy in the office of commissioner shall be filled by appointment of the committee remaining district commissioners until the next succeeding general election,. The new appointee shall not serve out any unexpired time of term beyond the next succeeding general election, at which time the balance of the unexpired term shall be filled as provided by section 69.12.  Appointees to unexpired terms may choose to stand for election at the next succeeding general election. The committee shall not name or otherwise have authority to approve a commissioner appointment to fill unexpired terms.
    Sec. 2.  Section 161A.5, subsection 3, paragraph e, Code 2019, is amended by striking the paragraph.
DIVISION II
SOIL LOSS LIMITS

    Sec. 3.  Section 161A.44, unnumbered paragraph 1, Code 2019, is amended to read as follows:
   The commissioners of each district shall, with approval of and within time limits set by administrative order of the committee, adopt any reasonable regulations as are regulation deemed necessary to establish a soil loss limit or limits for the district and provide for the implementation of the soil loss limit or limits. A district may subsequently amend or repeal its regulations a regulation as it deems necessary.  However, a soil loss limit shall not exceed five tons per acre occurring within any twelve-month period. The committee shall review the soil loss limit regulations adopted by the districts commissioners at least once every five years, and shall recommend changes in the regulations of a district which the committee deems necessary to assure that the district’s soil loss limits are limit is reasonable and attainable.  The adoption, amendment, or repeal of a regulation shall not take effect until after a public hearing on the matter is conducted pursuant to section 161A.45. The commissioners may:
    Sec. 4.  Section 161A.45, Code 2019, is amended to read as follows:
   161A.45  Submission of regulations to committee —— hearing.
   1.  Regulations A regulation, other than a regulation establishing soil loss limits, which the commissioners propose to adopt, amend, or repeal shall be submitted to the committee, in a form prescribed by the committee, for its the committee’s approval. The committee may approve the regulations any regulation as submitted, or with amendments any related amendment as it the committee deems necessary.
   2.  The commissioners shall, and after committee approval if necessary, publish notice of a hearing on the any proposed regulations, as approved, regulation under section 161A.44 in a newspaper of general circulation in the district, setting a date and time not less than ten nor more than thirty days after the publication when a hearing on the proposed regulations regulation will be held at a specified place. The notice shall include the full text of the proposed regulations regulation or shall state that the proposed regulations are regulation is on file and available for review at the office of the affected soil and water conservation district.
    Sec. 5.  Section 161A.46, Code 2019, is amended to read as follows:
   161A.46  Conduct of hearing.
   At the hearing, the commissioners or their designees shall explain, in reasonable detail, the reasons why the adoption, amendment, or repeal of the regulations a regulation is deemed necessary or advisable. Any landowner, or any occupant of land who would be affected by the regulations proposed regulation, shall be afforded an opportunity to be heard for or against the proposed regulations regulation. At the conclusion of the hearing, the commissioners shall announce and enter of record their decision whether to adopt or modify the proposed regulations regulation. Any modification, other than establishing soil loss limits, must be approved by the committee, which may at its discretion order the commissioners to republish the regulations regulation and hold another hearing in the manner prescribed by this chapter.
    Sec. 6.  Section 161A.47, Code 2019, is amended to read as follows:
   161A.47  Inspection of land on complaint —— administrative order.
   1.  a.  The commissioners shall inspect or cause to be inspected any land located within the district to determine find if land is being damaged by sediment, from there exists credible evidence of significant soil loss caused by erosion occurring on neighboring that land in excess of the limits established by the district’s soil erosion control regulations or neighboring land. If the land is privately owned, the The commissioners shall make or cause to be made the inspection, upon receiving a under any of the following circumstances: 
   (1)  Receipt of a written complaint signed by an owner, lessee, or occupant of land claiming that the owner’s or, lessee’s, or occupant’s land is being damaged by sediment erosion occurring on neighboring land. If the land is subject to a public interest, the commissioners shall make or cause to be made the inspection upon a
   (2)  Receipt of a written complaint by any person, if the complaint contains allegations or information that would cause a reasonable person to conclude that significant soil loss caused by erosion has occurred.
   (3)  A majority vote of commissioners at an open meeting held pursuant to chapter 21. Land is subject to a public interest if the land is publicly held, subject to an easement held by the public, or the subject of an improvement made at public expense.
   (4)  By the discretionary authority of the commissioners as provided in section 161A.61.
   b.  The commissioners shall establish criteria to determine what constitutes credible evidence of significant soil loss based on the soil loss limits established for the district.
   2.  If, after the inspection, the commissioners find that sediment damages are occurring to land which is owned or occupied by the person filing the complaint or subject to a public interest, and that excess soil erosion is occurring on neighboring land soil loss exceeding the soil loss limits for the land in question, the commissioners shall issue an administrative order. The administrative order shall describe the commissioners’ findings, including the cause of the significant soil loss, the extent to which the soil loss exceeds the soil loss limits, the location of the erosion, and whether land has been damaged by soil loss due to erosion occurring on neighboring land. The administrative order shall be delivered to the persons responsible for causing the significant soil loss, including each landowner or landowners of record, lessee of the land, and to the occupant of the land, if known to the commissioners. The order shall describe the land and state as nearly as possible the extent to which soil erosion on the land exceeds the limits established by the district’s regulations.  Upon request, the commissioners shall deliver a copy of the administrative order to the owner of any land damaged by erosion occurring on neighboring land. The administrative
   3.  The order shall be delivered either by personal service or by restricted certified mail to each of the persons to whom it is directed, and shall:.
   3.  The administrative order shall establish a compliance period as follows:
   a.  In the case of erosion occurring on the site of any a construction project or similar undertaking involving the removal of all or a major portion of the vegetation or other cover, and exposing bare soil directly to water or wind, state a time not more than five days after service or mailing of the notice of the order when work necessary to establish or maintain all erosion control practices must be commenced, and a time not more than thirty days after service or mailing of the notice of the order when the not later than five days after the administrative order has been delivered. The work is to must be satisfactorily completed not later than thirty days after the administrative order has been delivered.
   b.  In all other cases, state a time not more than six months after service or mailing of the notice of the order, by which work needed necessary to establish or maintain the all necessary soil and water conservation practices or erosion control measures practices must be commenced, and a time not more than one year after the service or mailing of the notice of the order when the work is to be satisfactorily completed and satisfactorily completed not later than one year after the administrative order has been delivered, unless the requirements of the administrative order are superseded by the provisions of section 161A.48.
    Sec. 7.  Section 161A.48, subsection 2, Code 2019, is amended to read as follows:
   2.  Evidence that an application for cost-share or other public moneys, from a source or sources having authority to pay a portion of the cost of work needed to comply with an administrative order issued pursuant to section 161A.47, has been submitted to the proper officer or agency constitutes commencement of the work within the meaning of sections 161A.43 through 161A.53.  The commissioners shall give preference to applications that seek to comply with an administrative order issued pursuant to section 161A.47.
    Sec. 8.  Section 161A.49, Code 2019, is amended to read as follows:
   161A.49  Petition for court order Administrative order —— noncompliance.
   The commissioners shall petition the district court for a court order requiring immediate compliance with an Upon the expiration of the compliance period for an administrative order previously issued by the commissioners as provided in section 161A.47, if the person to whom the order is directed shall be deemed to be in noncompliance if any of the following apply:
   1.  The work necessary to comply with the administrative order is has not commenced on or before the date specified in such order, or in any supplementary order subsequently issued as provided in section 161A.48, unless. However, this subsection does not apply if, in the judgment of the commissioners, the failure to commence or complete the work as required by the administrative order is due to factors beyond the control of the person or persons to whom such order is directed and the person or persons can be relied upon to commence and complete the necessary work at the earliest possible time.
   2.  Such The work is not being performed with due diligence, or is not satisfactorily completed by the date specified in the administrative order, or when completed does not reduce soil erosion from such the land below the applicable soil loss limits established by the soil and water conservation district’s regulations.
   3.  The person or persons to whom the administrative order is directed advise have advised the commissioners that they do not intend to commence or complete such work.
    Sec. 9.  NEW SECTION.  161A.49A  Administrative order —— referral or petition to enforce.
   1.  a.  Upon the expiration of the compliance period described in sections 161A.47 and 161A.48, the commissioners shall enforce the administrative order against a person who is deemed to be in noncompliance under section 161A.49 by referring the matter to any of the following:
   (1)  The board of supervisors of a county in which the land causing the erosion is located.
   (2)  The attorney general pursuant to section 161A.6.
   b.  The referral shall include a copy of the administrative order and other information required by the recipient.
   2.  The commissioners shall notify any person whose land is damaged by erosion occurring on neighboring land that the compliance period has expired. The person may petition the board of supervisors of the county in which the land causing the erosion is located to take action necessary to enforce the administrative order. The petition shall include a copy of the administrative order and other information required by the board. A copy of the petition must be delivered to the commissioners who issued the administrative order.
   3.  A board of supervisors receiving a referral or petition under this section shall do any of the following:
   a.  Take action necessary to enforce compliance with the administrative order. Upon completion of board action, the board shall deliver a statement to the county treasurer certifying the costs of taking the action plus a penalty equal to five percent of that amount, together with a copy of the administrative order. The total amount due shall be assessed against the property which is the subject of the administrative order, shall be placed upon the county system, and shall be collected in the same manner as ordinary taxes. The amount due shall be a lien on the land until paid.
   b.  Refer the matter to the attorney general.
    Sec. 10.  Section 161A.50, Code 2019, is amended to read as follows:
   161A.50  Burden —— court order Court action.
   1.  Upon the expiration of the compliance period for an administrative order issued by the commissioners as provided in sections 161A.47 through 161A.49, the commissioners, or either a county board of supervisors or attorney general acting upon a referral under section 161A.49A, shall petition the district court to order a person deemed to be in noncompliance with the administrative order under section 161A.49 to immediately comply with the order.
   2.  In any action brought under section 161A.49 subsection 1, the burden of proof shall be upon the commissioners to show that soil erosion is in fact occurring in excess of the applicable soil loss limits and that the defendant has not established or maintained soil and water conservation practices or erosion control practices in compliance with the soil and water conservation district’s regulations. With respect to construction, repair, or maintenance of any public street, road, or highway, evidence that the defendant has met soil erosion control standards equivalent to or in excess of those currently imposed by the United States government on the project or like projects involving use of federal funds shall create a presumption of compliance with the applicable soil loss limit.
   3.  Upon receiving satisfactory proof of the defendant’s noncompliance, the court shall issue an order directing the landowner or landowners defendant to comply with the administrative order previously issued by the commissioners. The court may modify such administrative order if deemed necessary. Notice of the court order shall be given either by personal service or by restricted certified mail to each of the persons to whom the order is directed, who may within thirty days from the date of the court order appeal to the supreme court. Any person who fails to comply with a court order issued pursuant to this section within the time specified in such order, unless the order has been stayed pending an appeal, shall be deemed in contempt of court and may be punished accordingly.
DIVISION III
WATER QUALITY INITIATIVES

    Sec. 11.  Section 161A.4, Code 2019, is amended by adding the following new subsection:
   NEW SUBSECTION.  8.  The committee and division shall establish policies that prioritize the allocation of moneys, personnel, and technical expertise necessary to administer this chapter and chapter 466B to support water quality initiatives sponsored by a watershed management authority as described in section 466B.43.
    Sec. 12.  NEW SECTION.  466B.42A  Priority allocations.
   The state soil conservation committee established in section 161A.4 and the division shall establish policies that prioritize the allocation of moneys, personnel, and technical expertise necessary to administer this chapter and chapter 161A to support water quality initiatives sponsored by a watershed management authority created by two or more soil and water conservation districts under section 466B.22. The highest priority shall be given to support initiatives carried out in high-priority watersheds identified by the water resources coordinating council pursuant to section 466B.3.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   GENERAL. This bill relates to the powers and duties of the five soil commissioners who govern each soil and water conservation district (district) and who are elected to serve four-year terms on a nonpartisan basis. The bill also relates to the powers and duties of a number of other state and local entities, including county boards of supervisors (boards), county treasurers, the state soil conservation committee (committee), the soil conservation division of the department of agriculture and land stewardship (division), and the attorney general.
   ELECTION OF COMMISSIONERS. The bill removes the prohibition against more than one commissioner residing in the same township, requiring only residence within the district to be eligible for election at large to the office of commissioner. Provisions relating to appointments for vacancies in the office of commissioner are changed to allow for appointments to be made by the remaining commissioners, not the state soil conservation committee. The bill specifies that the person appointed does not serve out the full remaining term, but only for the time until the next succeeding general election. Appointed commissioners are then able to stand for election if they so choose.
   COMMISSIONERS, BOARDS, AND THE ATTORNEY GENERAL —— ESTABLISHING AND ENFORCING SOIL LOSS LIMITS. The commissioners are to establish criteria for determining what constitutes significant soil loss for land located within the district, including soil loss caused by erosion occurring on neighboring land. The commissioners are to adopt a regulation establishing soil loss limits which shall be not more than five tons per acre during any 12-month period. The regulations establishing soil loss limits are no longer required to be approved by the committee.
   The commissioners must perform an inspection of land located in their district after receipt of a written complaint or upon a majority vote at an open meeting. After the inspection, the commissioners must issue an administrative order against a person if the commissioners find the loss of soil exceeds the soil loss limit for the land in question. The order must describe the commissioners’ findings, be delivered to the person responsible for causing the soil loss, and establish a period for compliance with the order. Evidence of compliance with the order includes applying for public moneys, such as cost-share financing, in order to defray a portion of the costs associated with complying with the order. The bill requires the commissioners to give preference to applications which seek to comply with an administrative order.
   After the compliance period expires, if work to comply with the order is not being performed, the commissioners must enforce the order by referring the matter to the attorney general or the board of supervisors in the county in which the land is located. A person whose land is damaged due to neighboring land’s erosion may also petition the board of supervisors to enforce the order. If the board takes action to enforce compliance with the order, the board must notify the county treasurer of the costs associated with taking its action. The treasurer must enter an amount equal to the costs plus a 5 percent penalty on the tax books, which shall be collected as ordinary taxes and constitutes a lien against the property. However, the board of supervisors may instead refer the matter to the attorney general. The commissioners, or the board or attorney general acting under a referral, must petition the district court to enforce the order.
   COMMITTEE AND DIVISION —— PRIORITIZING SOIL CONSERVATION EFFORTS AND WATER QUALITY INITIATIVES. The committee and division are to establish policies that prioritize the allocation of moneys, personnel, and technical expertise to support soil conservation efforts (Code chapter 161A), and water quality initiatives as sponsored by a watershed management authority formed by two or more districts (Code section 466B.22). The highest priority is to be given to support efforts in high-priority watersheds identified by the water resources coordinating council (Code section 466B.3).