Iowa Admin. Code r. 567-133.6

Current through Register Vol. 47, No. 10, November 13, 2024

Rule 567-133.6 - Compensation for damages to natural resources

(1)Applicability. This rule applies to persons who, by release of a hazardous substance to the environment, cause injury to, destruction of, or loss of natural resources held in trust by the state for the public. In most cases this would involve the destruction of aquatic life or other wildlife under the ownership of the state, as provided in Iowa Code section 481A2.. This rule relates to the compensation to the state and public for the natural resource damages and is in addition to any other legal recourse for the event or action that caused the destruction or damage.

(2)Liability to the state. Persons who cause injury to, destruction of, or loss of natural resources of the state are liable to the state as provided by Iowa Code section 455B392(1)(c).. This rule establishes the methodologies and criteria for evaluating the extent and value of the damage and establishes the methods of compensation. If the person and the department cannot agree to the proper resolution of a particular case, the issues of liability, damage and compensation will be established through contested case proceedings, as provided by 567-Chapter 7.

(3)Assessment. When natural resources are destroyed or damaged by an identifiable source, the degree and value of the losses shall be assessed by collecting, compiling, and analyzing relevant information, statistics, or data through prescribed methodologies to determine damages, as set forth in this rule.

a.General. Except as specified otherwise in this rule, the definitions, methodologies, and criteria in 43 CFR 11 may be used to assess natural resource damages.

b.Fish loss. Assessment of damages for fish kills shall be in accordance with the following:

(1) Normally investigators will follow the methods prescribed by AFS to determine numbers of fish killed, by species and size.

(2) During periods of ice cover, where local conditions prevent using these methods, or in other appropriate circumstances, for example when the resources are known to have been diminished by prior incidents, investigators will utilize the best information available to determine numbers of fish killed by species and size. Information may include existing or prior data on population levels in the affected water body or nearby water bodies with similar characteristics, including any historical fish kill data.

(3) The monetary valuation of fish shall be the replacement values as published in AFS for all fish lost except the following: channel catfish, flathead catfish, blue catfish, northern pike, muskellunge, northern pike/muskellunge hybrid, rainbow trout, brown trout, brook trout, white bass, yellow bass, white bass/striped bass hybrid, largemouth bass, smallmouth bass, spotted bass, crappie, rock bass, bluegill, redear sunfish, warmouth, pumpkinseed, freshwater drum, yellow perch, walleye, sauger, and walleye/sauger hybrid. The value of these fish shall be $15 each, unless AFS establishes a higher value. Notwithstanding the above, the value of each fish classified by the department as an endangered or threatened species shall be $1,000.

(4) The value of lost services to the public shall be the number of fishing trips lost over the period of the resource loss, as determined through local creel survey information or through interpolation from the most recent statewide creel survey. Each trip shall be valued at $30.

(5) The cost of the investigation shall include salaries plus overhead for the time of staff, including support staff, involved in investigating the fish kill and performing the assessment; meals and lodging for staff while they are in the field conducting the assessment; mileage, valued at the current rate established pursuant to Iowa Code section 18.117; costs borne by the department associated with containment or cleanup operations; and any other costs directly associated with the investigation and assessment.

(4)Compensation. The department will extend to the responsible person the opportunity to reach voluntary agreement as to the amount of damages and the compensation method. If the person disputes liability or the damage amount, the department will make a demand for payment and the person may appeal and demand contested case procedures under 567-Chapter 7. The method of compensation shall be solely in the discretion of the department.

a. Direct monetary payment. Compensation will normally be by direct monetary payment to the department. The money received will be used to replace, restore or rehabilitate the lost or damaged resources. Resource enhancement projects, support of educational programs relating to resource protection or enhancement, or resource acquisition of equal or greater value also may be funded. If practical, such alternatives should provide similar services to the public and should be in the vicinity of the loss.

b.Indirect monetary payment. In appropriate cases, an equal or greater amount of compensation may be made by monetary payment to another government agency or private nonprofit group in the natural resource field for the same purposes as provided in paragraph"a."

c.Direct funding of projects. With the approval and oversight of the department, the person may be allowed to contract directly for the same purposes as provided in paragraph"a."

This rule is intended to implement Iowa Code section 455B.392.

Iowa Admin. Code r. 567-133.6

ARC 8470B, IAB 1/13/10, effective 2/17/10