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Show 308 iowa able rivers.24 The council is authorized to establish encroachment limits in floodways and flood plains. Similar limits may be estab- lished by localities so long as they are consistent with the State standards. There is thus a combination of State regulation and con- trol with a policy of encouraging local governments to adopt their own regulations.25 Section 455A.33 provides that it shall be unlawful to permit any structure, dam, obstruction, deposit, or excavation to be erected or maintained in any floodway or flood plain which: * * * will adversely affect the efficiency of or unduly restrict the capacity of the floodway, adversely affect the control, development, protection, allocation, or utilization of the water resources of the State, or adversely affect or inter- fere with the State comprehensive plan for water resources or an approved local water resources plan * * * Such structures are declared to constitute public nuisances and can be maintained only by a permit from the council. The council has power to enjoin or abate nuisances which adversely affect flood control. Further, subparagraph 4 of section 455A.33 provides that: The Council shall have the authority to maintain an action in equity to enjoin any such person from erecting or making or suffering or permitting to be made any structure, dam, obstruction, deposit, or excavation * * * for which a permit has not been granted. The next paragraph of the same section provides that the council also has the power to remove or eliminate any such structure by a condemnation action. In the first case, Iowa Natural Resources Council v. Van Zee,26 the council brought suit for a mandatory injunction to require the defendant to remove certain levees and channel changes which he had constructed and made after 1949 on his own land, but which were partly located within the flood plain of the North Skunk River. The structures were admittedly located in the designated areas and had been constructed without a permit from the council. The majority opinion decided that a literal reading of paragraph 4 of section 455A.33 did not authorize the court to issue a mandatory injunction to abate structures already in existence at the time the statute was enacted without an additional showing that they did in fact con- stitute a public nuisance. This interpretation of the subsection quoted above might seem rather restrictive in view of the general language of the entire section. Since the case was to be remanded, the court felt constrained to consider in general the constitutionality of the Flood Plain Act. The defendant claimed that it violated the due process clause in the State constitution as well as the fifth amendment (sic) to the Federal Constitution.27 The court held that the statute constituted a valid exercise of the State's police power and that, as a consequence, pri- vate property was not taken without due process of law. The statute was construed to apply only to post-statutory structures. What is -curious about the case is that the court felt the matter should be remanded to the trial court to require the defendant to 24 A recent case raised the question whether the natural resources council's .jurisdic- tion is limited to the riverbed or includes also the shoreline and flood plain. See Simpson v. Iowa State Highway Oomm'n, 195 N.W. 2d 528, 532 (Iowa 1972). 25 See note, 55 Minn. L. Rev. 1163, 1198 (1971). 26 261 Iowa 1287. 158 N.W. 2d 111 (1968). 27 Clearly, only the 14th amendment to the Federal Constitution could be involt , |
