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Show 312 iowa to coordinate on a regional basis the functions of local governmental units in connection with soil and water resources.48 3. Surface Waters 3.1 Method of Acquiring Rights A water permit may be acquired by filing an application with the natural resources council. After a prehearing investigation by the water commissioner, the applicant is entitled to a hearing before the commissioner or one of his deputies. Kules and regulations gov- erning the hearing have been promulgated by the council. The statute requires published notice once each week for 2 consecutive weeks in the county within which the permit is sought. The applicant must prove that water is available; that he has the ability to put the water to the proposed use; that the proposed use is a beneficial one; and that the proposed diversion, storage, or withdrawal will not be detrimental to the public interest or to the interests of property owners with prior or superior rights who might be affected by the application. The water commissioner must make a final determina- tion of all applications. Any aggrieved party may appeal to the council where the issues apparently are retried. There is judicial review of council decisions by a trial de novo in the district court in the county in which the land is located. Here the council, rather than the applicant, has the burden of proof, and it must show that its actions were reasonable and necessary.46 Ultimately, an appeal lies to the State supreme court. During the 10-year period covered by the Hines study, only two applications for permits were denied, and these related to drainage water as distinguished from applica- tions to divert, store, or withdraw water.47 Section 455A.21 provides that in processing applications, "priority will be given to persons in the order applications are received." This language is similar to that commonly found in western appropriation statutes. The sentence which follows contains a curious proviso: "However, persons who have made diversion or withdrawal of water for a beneficial use prior to May 16, 1957. [effective date of the act] will be accorded priority according to the actual date of said diver- sion or withdrawal." Hines notes that the commissioner has in- terpreted this to mean that such existing water users are accorded priority only in the processing of applications as distinguished from priority in their use of water after the permits are granted. If this interpretation of the statute is correct, then the statute has no real significance at the present time. 3.2 Nature and Limit of Rights a. permits Water permits are issued only for "beneficial" uses.48 The term is boardly defined to include uses which are not wasteful or do not « See note, 56 Iowa L. Rev. 804 (1971). «• Sec. 45SA.20. « Hines at 36. *8 Sec. 455A.22. |
