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Show 304 iowa The Iowa Natural Resources Council was set up in 1949 to devise a comprehensive plan for the control and protection of the State's water resources. After an unusual drought in the early 1950's, a special legislative committee was established to study the State's water problems and to make specific recommendations to the legis- lature. A water permit statute was enacted, effective May 16, 195T.1 The council and its chief executive officer, the director, have basic administrative responsibility for the State's water program. Except for certain unregulated uses, the act requires a permit from the water commissioner for the right to divert, store, or withdraw any water within the State. Permits are of short duration, are issued only for beneficial uses, and are subject to a number of conditions specified in the act. After the State had nearly 10 years of experience with the act, a comprehensive study of the effectiveness of the legislation was assembled by Professor N. William Hiiies of the University of Iowa College of Law.2 This excellent report is required reading for any- one interested in a detailed description of the actual administration of the act during its first 10 years of life.3 Since the Hines study, the Iowa Supreme Court has had three occasions to consider parts of chapter 455A, which deals with the powers of the natural re- sources council. After a general discussion of the permit statute, two of these cases will be examined in some detail. The basic legislative policies behind the Iowa act may be a bit difficult to pull together for anyone who is unfamiliar with the Hines study. There are contradictory provisions, some rather awkward drafting, and a number of provisions which appear to be concessions to special interests. Some aspects of the act are rather innovative (e.g., the probable attitude toward existing riparian rights), some rather cautious (e.g., the short duration of water permits), and some policy problems are totally ignored (e.g., preferences among uses in times of water shortage). A lengthy preamble emphasizes that the waters of the State should be "put to beneficial use to the fullest extent of which they are capable." The act, in separate sections, spells out those water uses which are exempt from the permit requirement (nonregulated uses) and those which are regulated ("depleting" uses which are not in the nonregulated category). It may be helpful to look first at those uses which are not regulated.4 These include: (1) The use of water for ordinary household purposes and for poultry, livestock, and domestic animals.5 (2) Any beneficial use of the surface flow in border rivers. (3) Beneficial uses existing on May 16, 1957, within the terri- torial boundaries of municipal corporations. A proviso states that 1 25 Iowa Code Ann., ch. 455A (1971). The act will hereafter be cited simply by section numbers. 2 N. W. Hines, A Decade of Experience Under the Iowa Water Permit System (Agri- cultural Law Center, College of Law, Univ. of Iowa. Monograph No. 9, 1966). The report will hereafter be cited as "Hines." 3 See also J. O'Connell, Iowa's New Water Statute-The Constitutionality of Regulating Existing Uses of Water, 47 Iowa L. Rev. 549 (1962) and M. Gors, The Law of Water Distribution in Iowa and South Dakota: A Comparison of the Riparian and Appropriative Si/stems, 20 Drake L. Rev. 256 (1971). 4 Sec. 455A.1 (definitions). 5 Hines, at 15, 32, reports that the term "ordinary" has been construed by the State attorney general to modify poultry, etc., as well as household. |
