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Senate Study Bill 1120 - IntroducedA Bill ForAn Act 1relating to fee programs for permittee participation
2in lieu of required compensatory mitigation of stream and
3wetland impacts and making appropriations.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. PURPOSE. The general assembly finds and declares
2that because the federal Water Pollution Control Act of 1972,
3Pub.L. No.92-500, as amended by the Water Quality Act of
41987, Pub.L. No.100-4, as published in 33 U.S.C. §1251 –
51387, as amended, provides for a permit system to regulate the
6discharge of dredge and fill materials to the waters subject
7to the jurisdiction of that Act, and because the terms of such
8federal permits may provide for the mitigation of impacts to
9aquatic resources by permitted entities, it is in the interest
10of the people of Iowa to enact provisions authorizing the
11establishment of programs for the payment of a fee in lieu of
12other compensatory mitigation actions required by the United
13States army corps of engineers.
14 Sec. 2. NEW SECTION. 456B.16 Definitions.
15As used in this subchapter, unless the context otherwise
16requires:
171. “Compensatory mitigation” means the restoration,
18establishment, enhancement, or preservation of aquatic
19resources for the purpose of offsetting unavoidable adverse
20impacts that remain after all appropriate and practicable
21avoidance and minimization have been achieved.
222. “Federal Water Pollution Control Act” means the federal
23Water Pollution Control Act of 1972, Pub.L. No.92-500, as
24amended by the Water Quality Act of 1987, Pub.L. No.100-4, as
25published in 33 U.S.C. §1251 – 1387, as amended.
263. “Geographic service area” means the geographic area
27within which impacts can be mitigated at a specific mitigation
28bank or an in-lieu fee program, as designated in the mitigation
29bank or in-lieu fee program instrument.
304. “In-lieu fee program” means a program involving the
31restoration, establishment, enhancement, or preservation
32of aquatic resources through funds paid to a governmental
33or nonprofit natural resources management entity to satisfy
34compensatory mitigation requirements for permits issued by the
35United States army corps of engineers.
-1- 15. “Mitigation bank” means a site, or suite of sites, where
2resources such as wetlands, streams, and riparian areas are
3restored, established, enhanced, or preserved for the purpose
4of providing compensatory mitigation for impacts authorized by
5permits issued by the United States army corps of engineers.
66. “Mitigation credit” means a unit of measure such
7as a functional or areal measure or other suitable metric
8representing the accrual or attainment of aquatic functions
9at a compensatory mitigation site. The measure of aquatic
10functions is based on the resources restored, established,
11enhanced, or preserved.
12 Sec. 3. NEW SECTION. 456B.17 Authorization.
131. The department may establish in-lieu fee programs
14providing for the payment of a fee to compensate for impacts
15to aquatic resources by permittees under section 404 of the
16federal Water Pollution Control Act whose activities have been
17determined by the United States army corps of engineers to
18require mitigation.
192. Any in-lieu fee program established by the department
20shall:
21a. Provide a mitigation alternative that will effectively
22replace aquatic life functions and values lost through
23permitted impacts.
24b. Provide permittees with an additional method to
25compensate for adverse impacts to aquatic resources.
26c. Achieve ecological success on a watershed basis by
27directing funds to protected natural resource types and
28functions that are appropriate to the geographic service area,
29and by integrating projects with other conservation activities
30whenever possible.
31d. Provide for the sale of mitigation credits to be
32purchased by permittees in lieu of other forms of compensatory
33mitigation.
34e. Using the proceeds from the sale of mitigation
35credits, provide funding for the restoration, establishment,
-2-1enhancement, and preservation of aquatic resources within the
2state.
33. The department may enter into agreements with entities
4for the administration of all or part of an in-lieu fee
5program, the establishment of appropriate compensation for
6such administration, and such further terms and conditions
7as necessary to fulfill the purposes of the program and the
8requirements of state and federal law.
94. If the department establishes an in-lieu fee program, it
10shall enter into agreements with the army corps of engineers as
11required for the establishment of an in-lieu fee program.
125. If a mitigation bank authorized by the army corps of
13engineers exists in a given geographic service area, the
14program shall only accept payment of fees in lieu of mitigation
15for projects in that geographic service area if the mitigation
16bank is unavailable to provide the needed credits. Payment of
17fees in lieu of mitigation made prior to the authorization of a
18mitigation bank in a geographic service area shall be expended
19as soon as practicable by the department.
206. Utilization of an in-lieu fee program shall be based upon
21market price of available mitigation bank credits and a program
22shall review the market price of mitigation banks by geographic
23service areas to establish costs for the program by geographic
24service area.
25 Sec. 4. NEW SECTION. 456B.18 Compensatory mitigation fund
26established.
271. A compensatory mitigation fund is created in the state
28treasury. Moneys received from payments of fees in lieu of
29mitigation shall be deposited into the fund. Notwithstanding
30section 8.33, any unexpended balances in the compensatory
31mitigation fund and in any accounts within the compensatory
32mitigation fund at the end of each fiscal year shall be
33retained in the fund and any respective accounts within the
34fund. Notwithstanding section 12C.7, subsection 2, interest
35or earnings on investments or time deposits of the moneys in
-3-1the compensatory mitigation fund or in any accounts within the
2compensatory mitigation fund shall be credited to the fund or
3accounts within the fund.
42. Moneys in the fund are appropriated to the department for
5the restoration, establishment, enhancement, and preservation
6of aquatic resources within the state to offset impacts to
7aquatic resources by permittees who are required to provide
8compensatory mitigation pursuant to section 404 of the federal
9Water Pollution Control Act. In establishing the amount of
10the in-lieu fee to be charged, the department shall include
11an amount for the expenses of administering the program. The
12administrative costs shall be a percentage of the fee.
13 Sec. 5. NEW SECTION. 456B.19 Rules.
14The department shall adopt rules pursuant to chapter 17A as
15necessary to carry out the purposes of this subchapter.
16 Sec. 6. CODE EDITOR DIRECTIVE. The Code editor is directed
17to divide chapter 456B into subchapters.
18EXPLANATION
19The inclusion of this explanation does not constitute agreement with
20the explanation’s substance by the members of the general assembly.
21The United States army corps of engineers may require that a
22permittee under the federal Water Pollution Control Act section
23404 permitting program provide mitigation of impacts to the
24streams and wetlands that arise from the permitted project.
25Federal rules authorize states to establish fee programs in
26lieu of requiring on-site mitigation.
27This bill authorizes the department of natural resources
28to establish in-lieu fee programs to provide for the payment
29of a fee by a permit holder in lieu of performing mitigation.
30The bill allows the department to enter into agreements with
31entities for the administration of all or part of an in-lieu
32fee program. Any in-lieu fee program must be approved by the
33army corps of engineers. Fees collected from an in-lieu fee
34program shall be deposited into a compensatory mitigation
35fund created in the state treasury. The moneys in the fund
-4-1are appropriated to the department for the restoration,
2establishment, enhancement, and preservation of aquatic
3resources within the state to offset impacts to aquatic
4resources by entities permitted under section 404 of the
5federal Water Pollution Control Act. The departments shall
6adopt rules to carry out the purpose of the bill.
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2in lieu of required compensatory mitigation of stream and
3wetland impacts and making appropriations.
4BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. PURPOSE. The general assembly finds and declares
2that because the federal Water Pollution Control Act of 1972,
3Pub.L. No.92-500, as amended by the Water Quality Act of
41987, Pub.L. No.100-4, as published in 33 U.S.C. §1251 –
51387, as amended, provides for a permit system to regulate the
6discharge of dredge and fill materials to the waters subject
7to the jurisdiction of that Act, and because the terms of such
8federal permits may provide for the mitigation of impacts to
9aquatic resources by permitted entities, it is in the interest
10of the people of Iowa to enact provisions authorizing the
11establishment of programs for the payment of a fee in lieu of
12other compensatory mitigation actions required by the United
13States army corps of engineers.
14 Sec. 2. NEW SECTION. 456B.16 Definitions.
15As used in this subchapter, unless the context otherwise
16requires:
171. “Compensatory mitigation” means the restoration,
18establishment, enhancement, or preservation of aquatic
19resources for the purpose of offsetting unavoidable adverse
20impacts that remain after all appropriate and practicable
21avoidance and minimization have been achieved.
222. “Federal Water Pollution Control Act” means the federal
23Water Pollution Control Act of 1972, Pub.L. No.92-500, as
24amended by the Water Quality Act of 1987, Pub.L. No.100-4, as
25published in 33 U.S.C. §1251 – 1387, as amended.
263. “Geographic service area” means the geographic area
27within which impacts can be mitigated at a specific mitigation
28bank or an in-lieu fee program, as designated in the mitigation
29bank or in-lieu fee program instrument.
304. “In-lieu fee program” means a program involving the
31restoration, establishment, enhancement, or preservation
32of aquatic resources through funds paid to a governmental
33or nonprofit natural resources management entity to satisfy
34compensatory mitigation requirements for permits issued by the
35United States army corps of engineers.
-1- 15. “Mitigation bank” means a site, or suite of sites, where
2resources such as wetlands, streams, and riparian areas are
3restored, established, enhanced, or preserved for the purpose
4of providing compensatory mitigation for impacts authorized by
5permits issued by the United States army corps of engineers.
66. “Mitigation credit” means a unit of measure such
7as a functional or areal measure or other suitable metric
8representing the accrual or attainment of aquatic functions
9at a compensatory mitigation site. The measure of aquatic
10functions is based on the resources restored, established,
11enhanced, or preserved.
12 Sec. 3. NEW SECTION. 456B.17 Authorization.
131. The department may establish in-lieu fee programs
14providing for the payment of a fee to compensate for impacts
15to aquatic resources by permittees under section 404 of the
16federal Water Pollution Control Act whose activities have been
17determined by the United States army corps of engineers to
18require mitigation.
192. Any in-lieu fee program established by the department
20shall:
21a. Provide a mitigation alternative that will effectively
22replace aquatic life functions and values lost through
23permitted impacts.
24b. Provide permittees with an additional method to
25compensate for adverse impacts to aquatic resources.
26c. Achieve ecological success on a watershed basis by
27directing funds to protected natural resource types and
28functions that are appropriate to the geographic service area,
29and by integrating projects with other conservation activities
30whenever possible.
31d. Provide for the sale of mitigation credits to be
32purchased by permittees in lieu of other forms of compensatory
33mitigation.
34e. Using the proceeds from the sale of mitigation
35credits, provide funding for the restoration, establishment,
-2-1enhancement, and preservation of aquatic resources within the
2state.
33. The department may enter into agreements with entities
4for the administration of all or part of an in-lieu fee
5program, the establishment of appropriate compensation for
6such administration, and such further terms and conditions
7as necessary to fulfill the purposes of the program and the
8requirements of state and federal law.
94. If the department establishes an in-lieu fee program, it
10shall enter into agreements with the army corps of engineers as
11required for the establishment of an in-lieu fee program.
125. If a mitigation bank authorized by the army corps of
13engineers exists in a given geographic service area, the
14program shall only accept payment of fees in lieu of mitigation
15for projects in that geographic service area if the mitigation
16bank is unavailable to provide the needed credits. Payment of
17fees in lieu of mitigation made prior to the authorization of a
18mitigation bank in a geographic service area shall be expended
19as soon as practicable by the department.
206. Utilization of an in-lieu fee program shall be based upon
21market price of available mitigation bank credits and a program
22shall review the market price of mitigation banks by geographic
23service areas to establish costs for the program by geographic
24service area.
25 Sec. 4. NEW SECTION. 456B.18 Compensatory mitigation fund
26established.
271. A compensatory mitigation fund is created in the state
28treasury. Moneys received from payments of fees in lieu of
29mitigation shall be deposited into the fund. Notwithstanding
30section 8.33, any unexpended balances in the compensatory
31mitigation fund and in any accounts within the compensatory
32mitigation fund at the end of each fiscal year shall be
33retained in the fund and any respective accounts within the
34fund. Notwithstanding section 12C.7, subsection 2, interest
35or earnings on investments or time deposits of the moneys in
-3-1the compensatory mitigation fund or in any accounts within the
2compensatory mitigation fund shall be credited to the fund or
3accounts within the fund.
42. Moneys in the fund are appropriated to the department for
5the restoration, establishment, enhancement, and preservation
6of aquatic resources within the state to offset impacts to
7aquatic resources by permittees who are required to provide
8compensatory mitigation pursuant to section 404 of the federal
9Water Pollution Control Act. In establishing the amount of
10the in-lieu fee to be charged, the department shall include
11an amount for the expenses of administering the program. The
12administrative costs shall be a percentage of the fee.
13 Sec. 5. NEW SECTION. 456B.19 Rules.
14The department shall adopt rules pursuant to chapter 17A as
15necessary to carry out the purposes of this subchapter.
16 Sec. 6. CODE EDITOR DIRECTIVE. The Code editor is directed
17to divide chapter 456B into subchapters.
18EXPLANATION
19The inclusion of this explanation does not constitute agreement with
20the explanation’s substance by the members of the general assembly.
21The United States army corps of engineers may require that a
22permittee under the federal Water Pollution Control Act section
23404 permitting program provide mitigation of impacts to the
24streams and wetlands that arise from the permitted project.
25Federal rules authorize states to establish fee programs in
26lieu of requiring on-site mitigation.
27This bill authorizes the department of natural resources
28to establish in-lieu fee programs to provide for the payment
29of a fee by a permit holder in lieu of performing mitigation.
30The bill allows the department to enter into agreements with
31entities for the administration of all or part of an in-lieu
32fee program. Any in-lieu fee program must be approved by the
33army corps of engineers. Fees collected from an in-lieu fee
34program shall be deposited into a compensatory mitigation
35fund created in the state treasury. The moneys in the fund
-4-1are appropriated to the department for the restoration,
2establishment, enhancement, and preservation of aquatic
3resources within the state to offset impacts to aquatic
4resources by entities permitted under section 404 of the
5federal Water Pollution Control Act. The departments shall
6adopt rules to carry out the purpose of the bill.
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