HF 581 (LSB 1925YH (4) 90)

HOUSE FILE 581

BY  BAETH

A BILL FOR

An Act requiring the establishment and maintenance of riparian protection measures, providing for financing, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 161A.4, Code 2023, is amended by adding the following new subsection:
   NEW SUBSECTION.  2A.  The division, in consultation with the state soil conservation and water quality committee, and in cooperation with the commissioners of the soil and water conservation districts and the department of natural resources, shall adopt rules pursuant to chapter 17A to implement, administer, and enforce chapter 466B, subchapter V.
    Sec. 2.  Section 161A.42, subsection 4, Code 2023, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  d.  The establishment of riparian protection measures as provided in chapter 466B, subchapter V.
    Sec. 3.  Section 161A.42, subsection 9, paragraph a, Code 2023, is amended to read as follows:
   a.  (1)  “Permanent soil and water conservation practices”

“Permanent soil and water conservation practice” means planting of perennial grasses, legumes, shrubs, or trees, the establishment of grassed waterways, and or the construction of terraces, or other permanent soil and water practices approved by the committee.
   (2)  “Permanent soil and water conservation practice” includes riparian protection measures as provided in chapter 466B, subchapter V.
    Sec. 4.  Section 161A.48, subsection 1, Code 2023, is amended to read as follows:
   1.  a.  An Except as provided in paragraph “b”, the owner or occupant of agricultural land in this state is not required to establish any new permanent or temporary soil and water conservation practice unless cost-share or other public moneys have been specifically approved for that land and made available to the owner or occupant pursuant to section 161A.74.
   b.  Paragraph “a” does not apply to riparian protection measures as provided in chapter 466B, subchapter V.
    Sec. 5.  Section 161A.49, Code 2023, is amended to read as follows:
   161A.49  Petition for court order.
   1.  The Except as provided in subsection 2, the commissioners shall petition the district court for a court order requiring immediate compliance with an administrative order previously issued by the commissioners as provided in section 161A.47, if all of the following apply:
   1.  a.  The work necessary to comply with the administrative order is 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 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.  b.  Such 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 land below the limits established by the soil and water conservation district’s regulations.
   3.  c.  The person or persons to whom the administrative order is directed advise the commissioners that they do not intend to commence or complete such work.
   2.  Subsection 1 does not apply to the extent that the division proceeds against a landowner for violating a riparian protection measure as provided in chapter 466B, subchapter V.
    Sec. 6.  Section 161A.72, Code 2023, is amended by adding the following new subsection:
   NEW SUBSECTION.  1A.  The division shall provide a priority to financing the establishment of riparian protection measures as provided in chapter 466B, subchapter V.
    Sec. 7.  Section 161C.2, subsection 1, paragraph a, Code 2023, is amended to read as follows:
   a.  Each soil and water conservation district, alone and whenever practical in conjunction with other districts, shall carry out district-wide and multiple-district projects to support water protection practices in the district or districts, including projects to protect this state’s groundwater and surface water from point and nonpoint sources of contamination, including but not limited to contamination by agricultural drainage wells, sinkholes, sedimentation, or chemical pollutants.  A district acting alone or in conjunction with other districts shall provide priority to establishing riparian protection measures as provided in chapter 466B, subchapter V.
    Sec. 8.  Section 455B.171, subsection 11, Code 2023, is amended to read as follows:
   11.  “Iowa nutrient reduction strategy” means a water quality initiative developed and updated by the department of agriculture and land stewardship, the department of natural resources, and the college of agriculture and life sciences at Iowa state university of science and technology in order to assess do all of the following: 
   a.  Assess and reduce nutrients in this state’s watersheds that utilize a pragmatic, strategic, and coordinated approach with the goal of accomplishing reductions over time.
   b.  Evaluate the progress of water quality initiatives including but not limited to the programs and riparian protection measures provided in chapter 466B, subchapter V.
    Sec. 9.  Section 466B.5, Code 2023, is amended by adding the following new subsection:
   NEW SUBSECTION.  2A.  Riparian protection.  The department of natural resources shall provide for the assessment of regional watersheds and subwatersheds that are identified in the riparian protection inventory and map.
    Sec. 10.  Section 466B.6, Code 2023, is amended by adding the following new subsection:
   NEW SUBSECTION.  3.  Riparian protection.  A community-based subwatershed improvement plan shall provide for methods to increase compliance with riparian protection measures provided in subchapter V.
    Sec. 11.  Section 466B.7, subsection 2, Code 2023, is amended to read as follows:
   2.  Data collection and use.  Local communities in which the department of natural resources conducts subwatershed monitoring shall use the information to support subwatershed planning activities, do local data collection, and identify priority areas needing additional resources. Local communities shall also collect data regarding the effect of riparian protection measures, and data collected over time and use the data to evaluate for use in evaluating the impacts of their management efforts.
    Sec. 12.  NEW SECTION.  466B.51  Definitions.
   As used in this subchapter, unless the context otherwise requires:
   1.  “Department” means the department of natural resources.
   2.  “District” means a soil and water conservation district established in section 161A.5.
   3.  “Division” means the division of soil conservation and water quality created within the department of agriculture and land stewardship pursuant to section 159.5.
   4.  “Landowner” means a person listed on the tax assessment rolls as responsible for the payment of real estate taxes imposed on the land adjacent to a public water source.
   5.  “Normal water level” means the level evidenced by the long-term presence of surface water as indicated directly by hydrophytic plants or hydric soils or indirectly determined via hydrological models or analysis.
   6.  “Public water source” means waters of the state having definite banks and a bed.
   7.  “Riparian protection measure” means a riparian protection buffer or an alternative riparian protection practice as provided in section 466B.55.
   8.  “Waters of the state” means any stream, lake, pond, marsh, watercourse, waterway, well, spring, reservoir, aquifer, irrigation system, drainage system, and any other body or accumulation of water, surface or underground, natural or artificial, public or private, which is contained within, flows through, or borders upon the state or any portion of the state.
    Sec. 13.  NEW SECTION.  466B.52  Purposes and goals.
   1.  The purpose of this subchapter is to establish riparian protection measures for public water sources that do all of the following:
   a.  Provide protection from erosion and runoff pollution.
   b.  Stabilize soils, shores, and banks.
   c.  Protect or provide riparian corridors for public use.
   2.  In administering this subchapter, the division, in consultation with the department, shall advance all of the following goals:
   a.  Reduce soil erosion and sediment loss, including by doing any of the following:
   (1)  Stabilizing the soil or otherwise limiting sediment from being conveyed by surface water runoff.
   (2)  Filtering sediment-laden water.
   b.  Manage nutrients and reduce contributing contaminant loads to receiving public surface waters.
   c.  Provide a setback distance from an input applied to adjacent land, including pesticides as defined in section 206.2, nutrients as defined in section 455B.171, commercial fertilizers as defined in section 200.3, and manure as defined in section 459.102.
   d.  Reduce the volume or velocity of precipitation-induced surface water.
   e.  Improve stream or ditch bank stability with deep-rooted plants.
   f.  Provide an infiltration area for surface water.
   g.  Provide an uptake and denitrification zone for shallow subsurface flow.
   h.  Retire adjacent land from crop production in areas that have low productivity or are inefficient to farm.
   i.  Provide habitat for beneficial wildlife species if a corridor is sufficiently wide or the buffer connects larger habitat areas together.
    Sec. 14.  NEW SECTION.  466B.53  Administration and enforcement.
   1.  The division shall administer and enforce this chapter in consultation with the department. The division shall adopt all rules necessary or desirable to carry out this subchapter, including rules necessary or desirable to effectuate this subchapter’s purposes and goals as provided in section 466B.52.
   2.  The division shall assist the department and the water resources coordinating council established in section 466B.3, including in the completion of a statewide regional watershed assessment, prioritization, and planning process described in section 466B.5.
   3.  a.  The commissioners of a district shall consult with department field office staff in assisting the division in the administration and enforcement of this subchapter.
   b.  The commissioners of a district shall assist landowners in establishing and maintaining riparian protection measures. The assistance may be in the form of planning, technical support, and tracking progress toward compliance with the requirements of this subchapter.
   4.  The division, acting on its own or on behalf of the commissioners of a district, may obtain an administrative search warrant to determine compliance with this subchapter as provided in section 808.14.
    Sec. 15.  NEW SECTION.  466B.54  Riparian protection inventory and map.
   1.  The department shall prepare, revise, and publish a riparian protection inventory and map for each county which shall be used as the basis of designating public water sources that require riparian protection from nonpoint sources of pollution as provided in this subchapter.
   2.  In preparing and revising a riparian protection inventory and map, the department shall provide priority to a public water source classified as any of the following:
   a.  Part of a subwatershed that drains into a water body or water segment placed on the department’s section 303(d) list as defined in section 455B.171, regardless of whether a total maximum daily load for that water body or water segment has been developed.
   b.  A high-quality water resource as defined in section 459.102.
   c.  The Mississippi river basin as part of the Mississippi river basin initiative as provided in chapter 161G.
   3.  Each tract of land where each riparian protection measure is to be established shall be identified according to a system of parcels identified by a property identification number according to uniform criteria developed by the department.
   4.  The division, and a board governing a drainage or levee district as provided in chapter 468, shall provide all cooperation requested by the department in order to prepare and revise a riparian protection inventory and map.
    Sec. 16.  NEW SECTION.  466B.55  Riparian protection measures.
   1.  A landowner shall establish and maintain riparian protection measures as provided in this section.
   2.  a.  A landowner of property adjacent to a public water source identified as part of a riparian protection inventory and map shall maintain a continuous riparian protection buffer as follows:
   (1)  The riparian protection buffer must consist of perennial vegetation, excluding invasive plants and weeds declared noxious pursuant to section 317.1A, if the area is adjacent to a public water source.
   (2)  (a)  Except as provided in subparagraph division (b), the riparian protection buffer shall have a fifty-foot average width and a thirty-foot minimum width.
   (b)  A landowner shall comply with subparagraph division (a) twelve months after the land is identified in a riparian protection inventory and map published under section 466B.54. The commissioners of a district may grant a landowner a one-time waiver of this requirement for not more than one year.
   (3)  (a)  For a ditch, tile drain, watercourse, or settling basin established as part of a drainage or levee district governed under chapter 468, the buffer shall have a sixteen and one-half foot minimum width.
   (b)  A landowner shall comply with subparagraph division (a) twenty-four months after the land is identified as part of a riparian protection inventory and map published under section 466B.54. The commissioners of a district may grant a landowner a one-time waiver of this requirement for not more than one year.
   b.  The width of a riparian protection buffer shall be measured from the crown of the bank. Where there is no defined bank, the measurement shall be from the edge of the normal water level. The division may provide a different measurement method for a ditch, tile drain, watercourse, or settling basin established as part of a drainage or levee district governed under chapter 468.
   3.  a.  A landowner of property adjacent to a public water source identified as part of a riparian protection inventory and map may meet the requirements described in subsection 1 by adopting an alternative riparian protection practice alone or in combination with a modified riparian protection buffer. The alternative riparian protection practice as established alone or in combination with a riparian protection buffer shall provide water quality protection comparable to the riparian protection described in subsection 2.
   b.  A landowner shall comply with paragraph “a” twelve months after the land is identified as part of a riparian protection inventory and map published under section 466B.54. The commissioners of a district may grant a one-time waiver of this requirement for not more than one year.
   4.  The terms and conditions of a riparian protection measure shall be set forth in a parcel-specific riparian protection compliance plan approved by the commissioners of the district where the land is located and filed by the commissioners with the division which shall be published on the division’s internet site. The riparian protection plan may be part of a financing agreement entered into by the landowner and the division or commissioners of a district as provided in chapter 161A.
   5.  The establishment and maintenance of a riparian protection measure shall at least comply with all requirements of soil and water conservation practices or erosion control practices as described in chapter 161A, unless otherwise provided by the division and agreed to by the commissioners. A riparian protection measure qualifies for water quality agriculture infrastructure programs created in section 466B.43 and the water quality urban infrastructure program as provided in section 466B.44. A riparian protection measure shall be inspected and certified by the commissioners of the district where the land is located as required by the division.
   6.  This section does not prevent a landowner from using land established for riparian protection in any manner that does not interfere with the requirements of this subchapter, including a riparian protection compliance plan. The division shall upon request of a landowner issue a declaratory order regarding the use as provided in section 17A.9.
    Sec. 17.  NEW SECTION.  466B.56  Exemptions.
   1.  A landowner is not required to comply with the requirements in section 466B.55 if any of the following apply:
   a.  The public water source is located adjacent to land where only one landowner is riparian.
   b.  A person’s contribution of a pollutant to a public water source is regulated by the department under chapter 455B or pursuant to a permit related to the administration of the national pollutant discharge elimination system permit program pursuant to the federal Water Pollution Control Act, 33 U.S.C. ch. 26, as amended, and 40 C.F.R. pt. 124. However, this paragraph does not apply to the discharge or application of manure or other nutrients under chapter 459, 459A, or 459B.
   c.  The land where riparian protection measures are otherwise required pursuant to section 466B.55 is any of the following:
   (1)  Enrolled in the federal conservation reserve program as described in 7 C.F.R. pt. 1410.
   (2)  A wetland that could qualify under the conservation reserve enhancement program as provided in section 466.5.
   (3)  Subject to a conservation easement as provided in chapter 457A.
   (4)  Covered by a road, trail, building, or other structure.
   (5)  Subject to a crop approved by the division, including alfalfa or other perennial crop or part of a water-inundation cropping system.
   (6)  Part of a prairie, forest area, other biologically significant area, or that contains significant archaeological, historical, or cultural value.
   (7)  Contains geological characteristics which are unsuitable for vegetation.
   (8)  In a temporary nonvegetated condition due to drainage tile installation and maintenance, plant seeding, or the construction of a conservation project authorized by the federal government, the state, or a political subdivision thereof.
   2.  The division may excuse a landowner from complying with the requirements of section 466B.55 if the division determines that compliance would not significantly further the purposes and goals of this chapter as described in section 466B.52. The exemption may be based on but is not limited to any of the following:
   a.  The normal water level, which may exclude periods of drought or flooding.
   b.  The average water flow, which may exclude periods of drought or flooding.
   c.  The total drainage area, which may exclude periods of drought or flooding.
    Sec. 18.  NEW SECTION.  466B.57  Corrective action —— compliance order.
   1.  The division shall take enforcement action against a landowner who violates a term or condition of a riparian protection compliance plan as provided in section 466B.55. The division, in cooperation with the department and commissioners of a district where the land is located, shall issue a compliance order that includes a list of corrective actions that the landowner must correct. The compliance order shall include a practical period for the landowner to complete the corrective actions and for the commissioners to inspect the land and approve the corrective actions. A corrective action must be approved by the commissioners within one year after the division issues the compliance order, unless the commissioners grant an extension.
   2.  If the landowner is in violation of a protection compliance plan as provided in section 466B.55 and an administrative order is issued by the commissioners under chapter 161A, subchapter V, part 1, to the landowner, the division may waive its right to take an enforcement action under this chapter.
    Sec. 19.  NEW SECTION.  466B.58  Removal or degradation.
   1.  A landowner shall not engage in any work to remove or degrade a riparian protection measure, in whole or in part, unless the person has obtained a signed statement from the commissioners of the district where the land is located granting authorization to engage in the work as required by the division.
   2.  A person other than a landowner shall not engage in any work to remove or degrade a riparian protection measure, in whole or in part, unless the person has obtained a signed statement from the landowner granting authorization to engage in the work subject to the requirements in subsection 1.
    Sec. 20.  NEW SECTION.  466B.59  Civil penalty.
   1.  Except as provided in subsection 2, a landowner who does not complete a corrective action within the period stated in the compliance order under section 466B.57 is subject to a civil penalty as follows:
   a.  One hundred dollars per parcel as described in the riparian protection compliance plan which shall be assessed, imposed, and collected on a thirty-day basis for a one-hundred-eighty-day period.
   b.  After the period described in paragraph “a”, five hundred dollars per parcel as described in the riparian protection compliance plan which shall be assessed, imposed, and collected on a thirty-day basis.
   2.  A person who is in violation of section 466B.56 is subject to a civil penalty of five hundred dollars per parcel as described in the riparian protection compliance plan which shall be assessed, imposed, and collected by the division on a thirty-day basis.
   3.  Civil penalties collected pursuant to this section shall be credited to the general fund of the state.
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 amends Code chapter 466B, which provides for a number of programs to protect surface water and provide for flood mitigation and watershed management. The bill creates a new Code subchapter which requires a landowner having an interest in property adjoining a public water source (e.g., a watercourse such as a river, stream, or drainage ditch; or body of water such as a pond, lake, or reservoir) to establish and maintain a riparian protection measure (measure) in compliance with a riparian protection compliance plan (plan). The plan is derived from a riparian protection inventory and map developed by the department of natural resources (DNR).
   ADMINISTRATION. The plan must be prepared by the landowner and approved by the division of soil conservation and water quality (division) created within the department of agriculture and land stewardship. The division must act in partnership with commissioners of soil and water conservation districts (commissioners), and in cooperation with a number of other government entities, including the state soil conservation and water quality committee, the water resources coordinating council, and DNR.
   REQUIREMENTS. Under an approved plan, a landowner must establish and maintain a measure which is either a riparian protection buffer consisting of perennial vegetation, or an alternative riparian protection practice (e.g., erosion control practice or soil and water conservation practice) alone or in combination with a modified riparian protection buffer. The landowner must establish and maintain the measure after the division completes a riparian protection inventory and map which identifies the land subject to riparian protection. A landowner may apply for financial assistance to establish a measure under a number of programs, including cost-share moneys awarded under the authority of the division.
   EXCEPTIONS. The bill creates a number of exceptions that excuse compliance, including if (1) there is only one riparian landowner; (2) other regulations apply, including storm water outlets regulated by DNR, or a conservation program regulated by the federal or state government; (3) the land is covered by another object or structure; (4) the land is used to produce a designated crop; (5) the land is part of an environmentally designated area (e.g., a forest); (6) the land contains unique geological characteristics; or (7) the land is subject to construction. The division may also create other exceptions if it determines that the exception would not interfere with the bill’s purposes.
   ENFORCEMENT. The division is to take enforcement action against a landowner who violates a term or condition of a plan, unless the division allows the commissioners to take an enforcement action in court for the landowner’s violation of the terms of an administrative order (e.g., for violating the terms of a cost-share agreement). If the division enforces the plan, if must first issue a compliance order listing items that the landowner must complete within a specified time but not more than one year after the compliance order has been issued. The bill also prohibits a landowner or another person from engaging in any work to remove or degrade a riparian protection measure, unless the person has obtained authorization. The bill provides a range of civil penalties based on the number of parcels included in the plan and the period that the violation continues after the compliance order was delivered. The amounts of the civil penalties range from $100 to $500 per parcel.