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Show iowa 309 file with the council an application for a permit to maintain the structure. Then and only then, according to the court, could there be a determination of whether the council's decision to abate the structure was reasonable, that is, whether there was a proper exer- cise of the police power or whether condemnation would be required: The reasonableness of the restrictions as disclosed by such an application * * * conceivably might determine whether there is a proper exercise of police power. On the other hand, it might appear there is a taking which is com- pensable under eminent domain.** The dissenting opinion emphasized the dilemma in the majority's position: It appears that although plaintiff acted illegally in erecting a post-statutory structure in a floodway or flood plain, the majority now proposes to legalize such conduct by requiring the formality of filing an after-the-fact "proper application" * * * Pursuing this theory to a logical conclusion, if plaintiff now files an applica- tion and the council refuses him a permit, he may appeal to the district court. But, even though the court, on appeal, agrees with such decision of the council, the offending structure remains * * *29 An identical fact situation was presented a short time later in Iowa Natural Resources Council v. Mapes.so The council again con- tended that it was entitled to a mandatory injunction simply by showing that the post-statutory structure was built without a permit. Again the court held that there could be no abatement without a showing that the structure in fact constituted a public nuisance. In a criminal prosecution for maintaining a public nuisance, presumably such a showing would also have to be made by the prosecution.81 There is no reason to assume that these cases will have any special impact so far as the permit statute is concerned, but they are im- portant in that they indicate that the permit statute would be upheld as a valid exercise of the State's police power. In the case of an unlawful diversion, storage, or withdrawal of water without a per- mit, the council's power seems to be restricted to an investigation and an order of discontinuance.32 Criminal prosecution may result.33 It is not clear whether the council could bring suit to enjoin the unlaw- ful diversion. Other constitutional questions are likely to be raised in connection with the permit act. These include questions of delegation of legis- lative power, the sufficiency of the published notice provisions, and the application of the act to preexisting riparian rights.84 2.2 Resolution of Water Use Conflicts There are no statutory procedures provided in Iowa for the express purpose of resolving water use disputes and conflicts. The permit system discussed in section 2.1 supra only involves an administrative determination of the availability of unallocated water to satisfy a new permit, but there are no procedures provided for the adjudica- as 158 N.W. 2d at 119. 29 158 N.W. 2d at 124. so 164 N.W. 2d 177 (Iowa 1969). « Of. State v. Kuluvar, 266 Minn. 408,123 N.W. 2d 699 (1963). sa Sec. 455A.18. 33 Sec. 455A.39. »* Hines at 73-96. |
