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Show iowa 313 cause water pollution.49 The commissioner has discretion as to the duration of permits, provided that they do not exceed 10 years.50 Whether this short period inhibits private investment in the con- struction of desirable water projects is not known. Also, the com- missioner has considerable discretion in designating the amount of water which may be used and the time and rate of withdrawal. Other conditions may be included within the permit, depending upon the type of use. Periodic reports are required of the permittee. The commissioner may also suspend (but apparently cannot grant) per- mits in a time of emergency. Revocation, termination, and renewal of permits are discussed in section 3.4, infra. A distinctive feature of the Iowa system is that neither the council nor the commissioner has made any attempt to establish priorities or preferences among water uses after the permits have been issued. Although it is arguable that such authority exists, there is little in the statute which encourages this conclusion.51 B. RIPARIAN RIGHTS In view of the fact that the Iowa permit act is unclear as to its effect on existing riparian rights, it may not be inappropriate to consider briefly the Iowa cases dealing with riparian rights on a natural watercourse. The leading case on riparian rights is Gehlen Brothers v. Knorr?2 in which the court held that a riparian owner who had constructed a dam to operate a grist mill could not complain when an upper riparian decided to construct a dam which would temporarily divert some of the water from the stream in order to form a pond for harvesting ice during winter months. Here the uses of both riparians were classified as "artificial," and the "reasonable use" rule regulating the rights of riparians was applied. The upper use was held not to interfere substantially or unreasonably with the use of the water by the lower riparian. Thus, as between "artificial" uses, the out- come of the case depends to a considerable extent upon its particular facts. Whether a particular use is reasonable will depend upon "what the use is for; its extent, duration, necessity, and its application; the nature and size of the stream, and the several uses to which it is put; the extent of the injury to the one proprietor, and of the benefit to the other; and all other facts which may bear upon the reasonableness of the use." 53 Artificial uses include irrigation, con- sumptive industrial use, and municipal use. » Sec. 455A.1. 50 Sec. 455A.20. 81 Hines at 49-56 analyzes the sections of the act which mention priorities and discusses some of the problems which would arise if preferences were established in times of water shortage. «2 101 Iowa 700, 70 N.W. 757 (1897) ; of. Harp v. Iowa Falls Eleo. Co., 196 Iowa 317, 191 N.W. 520 (1923). In the Gehlen case, the lower riparian had attempted earlier to adjudicate the rights of the upper riparians under the ancient "Mill Acts." Apparently the court had found that the upper land was not flooded and therefore the riparian owner was not entitled to compensation under the condemnation provisions of the Mill Acts. Since the lands of the upper riparian were not affected, the parties in the present contro- versy stood on an equal footing so far as their common law riparian rights were concerned. The Mill Acts, which allow an operator of a dam who has a permit to condemn rights of other affected riparians, in effect sanctions a form of prior appropriation. The acts will be found in sees. 469.1 to 469.13. The permit must now be obtained from the Iowa Natural Resources Council. m 70 N.W. at 758-59. |
