| OCR Text |
Show iowa 307 and this required the formulation of the imaginative concept re- ferred to as the summation flow. In practice, sharing agreements among users have been encouraged. These have quite effectively dealt with situations in which the flow is above the protected level but is diminishing during late summer. A final feature of the act which is quite unusual is its rather ambivalent attitude toward riparian rights existing at the date of the act. Most regulatory statutes have preserved these common law rights or privileges sometimes for constitutional reasons, although a growing number of courts have held that unused riparian rights may be abolished.17 Nowhere in the Iowa statute are riparian claims expressly preserved. Moreover, existing rights are referred to only obliquely in a few sections. Thus, in connection with an application for a permit, the council must investigate "the effect of any such use * * *"18 Another section states that the permittee's use must not be detrimental "* * * to the interests of property owners with prior or superior rights who might be affected * * * 19 Also, irrigators may obtain permits "* * * unless by the use thereof some other riparian user is damaged."20 The same section provides that "noth- ing in this chapter shall impair the vested right of any person." Hines points out that the State water commissioner has in fact adopted a policy of requiring that all preexisting users obtain a permit if they fall within the category of regulated uses.21 Others have argued that the statute probably abolishes used as well as unused riparian rights on the effective date of the act.22 The con- stitutionality of this interpretation may never be challenged because after several years of administering the act, the commissioner ap- parently never has discovered a riparian owner who could prove that he had used a definite amount of water at the time the act was passed. The Iowa Supreme Court has considered the powers of the natural resources council in three recent decisions. It will be remembered that the council was set up in 1949. The present chapter 455A of the Iowa statutes entitled "Iowa Natural Resources Council" con- tains sections dealing with the organization and powers of the council as well as seven sections which constitute the Iowa Flood Plain Management Act, also enacted in 1949.23 The permit act of 1957 was inserted by the statutory revisors in the middle of the chapter. The definitions at the beginning of the chapter apply to all three areas. The recent cases have considered only the constitu- tionality of the Flood Plain Management Act. They offer some indi- cation, however, of the probable attitude of the court toward the permit act. Flood plain legislation attempts to minimize flood damage by controlling land use in the floodways and flood plains of unmanage- 17 See e.g., Texas Water Rights Comm'n v. Wright, 464 S.W. 2d 642 (Texas Sup. Ct. 18 Sec. 455A.18. 19 Sec. 455A.20. 20 Sec. 455A.21, a Hines at 28. 82 J. O'Connell, note 3 supra, at 581; but see note, 8 Drake L. Eev. 59. 65 (1959). 23 Sees. 455A.33 to 455A.39. 499-242-73------21 |
