Title: Iowa Natural Resources Act
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003147/00001
 Material Information
Title: Iowa Natural Resources Act
Physical Description: Book
Language: English
Publisher: University of Michigan
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collections - Iowa Natural Resources Act
General Note: Box 12, Folder 10 ( Water Resources and The Law - 1958 ), Item 15
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003147
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



AND THE LAW 599

5956-28. If for any reason any section, provision, item,
phrase, clause, sentence, or part of any section of this act shall
be held unconstitutional, the invalidity of such section, provision,
items, phrase, clause, sentence, or part of section shall not affect
Sthe validity of the remainder of the act; but such remainder shall
be permitted to stand and the various provisions of this act are
hereby declared to be separable for that purpose.
5956-29. All acts or parts of acts inconsistent herewith are
hereby repealed.
5956-30. Except as provided in section 4 herein, this act
shall take effect and be in force from and after passage.



Iowa Natural Resources Act

Iowa Code 455A as amended by Iowa Laws 1957, c. 229:
455A. 1. Definitions. As used in this chapter, council means
"Iowa Natural Resources Council";
"Flood plains" means the area adjoining the river or stream,
which has been or may be hereafter covered by flood water;
"Floodway" means the channel of a river or stream and those
portions of the flood plains adjoining the channel, which are reason-
ably required to carry and discharge the flood water or flood flow
of any river or stream;
"Council floodway" means a floodway designated and established
by order of the council, fixing its length and landside limits;
"Person" means any natural person, firm, partnership, associ-
ation, corporation, state of Iowa, any agency of the state, munici-
pal corporation, political subdivision of the state of Iowa, legal en-
tity, drainage district, levee district, public body, or other district
or units maintained or to be constructed by assessments, or the
petitioners of a proceeding pending in any court of the state affect-
ing the subject matter of this chapter;
"Due notice" means a notice of not less than thirty days by one
publication in an official newspaper published in each county in
which the property affected is located;
"Surface water" means the water occurring on the surface of
the ground;
"Ground water" means that water occurring beneath the surface
of the ground;







WATER RESOURCES


"Diffused waters" means waters arising by precipitation and
snowmelt, and not yet a part of any watercourse or basin and shall
include capillary soil water;
"Depleting use" means the storage, diversion, conveyance, or
use of any supply of water which might impair rights of lower or
surrounding users, or might impair the natural resources of the
state or might injure the public welfare if not controlled;
"Beneficial use" means the application of water to a useful pur-
pose that inures to the benefit of the water user and subject to his
dominion and control but does not include the waste or pollution of
water;
"Nonregulated use" means the use of water for ordinary house-
hold purposes, use of water for poultry, livestock and domestic ani-
mals, any beneficial use of surface flow from rivers bordering the
state of Iowa, or use of ground water on islands or former islands
situated in such rivers, existing beneficial uses of water within the
territorial boundaries of municipal corporations on the effective date
of this Act, except that industrial users of water, having their own
water supply, within the territorial boundaries of municipal corpora-
tions, shall be regulated when such water use exceeds three (3) per-
cent more than the highest per day beneficial use prior to the ef-
fective date of this Act, and any other beneficial use of water by
any person of less than five thousand (5,000) gallons per day;
"Regulated use" means any depleting use except a use specifi-
cally designated as a nonregulated use;
"Permit" means the written authorization issued by the water
,commissioner or council to a permitted which shall be limited as
to quantity, time, place, and rate of diversion, storage or with-
drawal in accordance with the declared policies and principles of
beneficial use set forth in this chapter;
"Permittee" means the person who obtains a permit from the
council authorizing such person to take possession by diversion or
otherwise and to use and apply .an allotted quantity of water for a
designated beneficial use, and who makes actual use of the water
for such purpose;
"Waste" means (a) permitting ground water or surface water to
flow, taking it or using it in any manner so that it is not put to its
full beneficial use, (b) transporting ground water from its source to
its place of use in such a manner that there is an excessive loss
in transit, (c) permitting or causing the pollution of a water bearing
strata through any act which will cause salt water, highly mineral-
ized water, or otherwise contaminated water to enter it;
"Watercourse" means any lake, river, creek, ditch or other
body of water or channel having definite banks and bed with visible








AND THE LAW


evidence of the flow or occurrence of water, except such lakes or
ponds without outlet to which only one landowner is riparian;
"Basin" means a specific subsurface water-bearing reservoir
having reasonably ascertainable boundaries;
"Established average minimum flow" means when reasonably re-
quired for the purpose of this Act, the council shall determine and
establish the average minimum flow for a given water course at a
given point thereon. The "average minimum flow" for a given water
course as used in this Act shall be determined by the following fac-
tors: (a) Average of minimum daily flows occurring during the pre-
ceding years chosen by the council as more nearly representative of
changing conditions and needs of a given drainage area at a particu-
lar time; (b) minimum daily flows shown by experience to be the
limit at which further withdrawals would be harmful to the public in-
terest in any particular drainage area; and (c) those minimum daily
flows shown by established discharge records and experiences to be
definitely harmful to the public interest. Such determination shall
be based upon available flow data, supplemented, when available
data are incomplete, by whatever evidence is available;
"Impounded or stored water" means that water captured and
stored on the land by anyone taking it pursuant to the provisions of
this chapter, and the party impounding the water shall become the
absolute owner thereof.
455A. 2 Declaration of policy. It is hereby recognized that
the protection of life and property from floods, the prevention of
damage to lands therefrom and the orderly development, wise use,
protection and conservation of the water resources of the state by
the considered and proper use thereof is of paramount importance
to the welfare and prosperity of the people of the state, and, to
realize these objectives it is hereby declared to be the policy of the
state to correlate and vest the powers of the state in a single agen-
cy, the Iowa natural resources council, with the duty and authority
to establish and enforce an appropriate comprehensive state-wide
program for the control, utilization, and protection of the surface
Sand ground-water resources of the state. It is hereby declared that
the general welfare of the people of the state of Iowa requires that
the water resources of the state be put to beneficial use to the full-
est extent of which they are capable, and that the waste or unrea-
sonable use, or unreasonable methods of use, of water be prevent-
ed, and that the conservation of such water be exercised with the
view to the reasonable and beneficial use thereof in the interest of
the people, and that the public and private funds for the promotion
and expansion of the beneficial use of water resources shall be








WATER RESOURCES


invested to the end that the best interests and welfare of the people
is served.
Water occurring in any basin or in any watercourse, or other
natural body of water of the state, is hereby declared to be public
waters and public wealth of the people of the state of Iowa and sub-
ject to use in accordance with the provisions of this Act, and the
control and development and use of water for all beneficial purposes
shall be in the state, which, in the exercise of its police powers,
shall take such measures as shall effectuate full utilization and pro-
tection of the water resources of the state of Iowa.
455A. 3 Creation. There is hereby created and established an
Iowa natural resources council. The council is established as an
agency of the state government to promote the policies set forth in
this chapter and shall represent the state of Iowa in all matters
within the scope of this chapter.
455A. 4 Appointment. The council shall consist of nine (9)
members who shall- be electors of the state of Iowa and shall be se-
lected from the state at large solely with regard to their qualifica-
tions and fitness to discharge the duties of office without regard to
their political affiliation. The members of the council shall be ap-
pointed by the governor with the approval of two-thirds of the mem-
bers of the senate in executive session and shall be appointed for
overlapping terms of six years.
The terms of three (3) members of the council shall expire on
July 1 of each odd-numbered year. Within sixty (60) days following
the organization of each biennial regular session of the general as-
sembly, appointments shall be made of successors to members of
the council whose terms of office shall expire on the first of July
next thereafter and of members to fill the unexpired portion of va-
cant terms.
Each incumbent member c. the Iowa natural resources council
serving at the time of the enactment of this Act shall continue in
office until the expiration of the term of office to which he was ap-
pointed. Short-term appointments of such additional members for
periods of less than six (6) years as is necessary to provide for
the transition from seven (7) members to nine (9) members, three
(3) of whose terms expire on July 1, of each odd-numbered year,
shall be made within thirty (30) days after the effective date of this
Act by the governor with the consent of two-thirds of the senate in
executive session, if the general assembly is then in session.
455A. 5 Vacancies. Vacancies occurring while the general as-
sembly is in session shall be filled for the unexpired portion of the








AND THE LAW


term as full-term appointments are filled. Vacancies occurring
while the general assembly is not in session shall be filled by the
governor, but such appointments shall terminate at the end of thirty
days after the convening of the next general assembly.
455A. 6 Removal. The governor may, with the approval of
the senate, during a session of the general assembly, remove any
member of the council for malfeasance in office or for any cause
that renders him ineligible for membership or incapable or unfit to
discharge the duties of his office and his removal when so made
shall be final.
455A. 7 Compensation and expenses. Each member of the
council not otherwise in the full-time employment of any public body,
shall receive the sum of twenty-five dollars for each day actually
and necessarily employed in the discharge of official duties provided
such compensation shall not exceed two thousand dollars for any
fiscal year. In addition to the compensation hereinbefore described,
each member of the council shall be entitled to receive the amount
of his traveling and other necessary expenses actually incurred while
engaged in the performance of any official duties, when so author-
ized by the council. No member of the council shall have any direct
financial interest in, or profit by, any of the operations of the coun-
cil.
455A. 8 Organization, meetings and rules. The council shall
organize by the election of a chairman and shall meet at the seat of
government on the first Monday in the months of January, April,
July and October, and at such other times and places as it may
deem necessary. The chairman shall be elected annually at the
meeting of the council in July. Meetings may be called by the
chairman and shall be called by the chairman on the request of four
members of the council. The majority of the council shall consti-
tute a quorum and the concurrence of a majority of the council in
any matter within their duties shall be required for its determina-
tion. The council shall adopt such rules and regulations as it may
deem necessary to transact its business and for the administration
and exercise of its powers and duties.
455A. 9 Director. 1. The council shall choose a director who
shall not be a member of the council and shall fix the compensation
of such director, which shall be payable out of the funds appropri-
ated to the council. The director shall be qualified by training and
experience. The term of office of the director shall be during the
pleasure of the council. The director shall serve as the executive


j








604 WATER RESOURCES

officer of the council and shall have charge of the work of the coun-
cil subject to its orders and directions.
2. The council shall choose a water commissioner who shall
not be a member of the council and shall fix the compensation of
such commissioner, which shall be payable out of the funds appro-
priated to the council. The water commissioner shall be qualified
by training and experience. The term of office of the water com-
missioner shall be during the pleasure of the council. The water
commissioner shall serve in a quasi-judicial capacity as the trier
of fact questions in the processing of all applications for appropria-
tion permits. He shall conduct hearings on any applications for
permits as provided by law and the rules and regulations of the
council, and he shall perform such other duties as the council may
prescribe.
3. The council may choose one or more deputy water commis-
sioners who shall not be members of the council. The council shall
fix the compensation of such deputy commissioners, which shall be
payable out of the funds appropriated to the council. The deputy
commissioners shall be qualified by training and experience. The
term of office of the deputy commissioners shall be during the
pleasure of the council. A deputy commissioner shall have all of
the duties, responsibilities, and powers of the water commissioner
when acting in his stead. The deputy commissioners shall be as-
signed hearings on applications for permits by the water Commis-
sioner.
455A. 10 Employees. The director, with the approval of the
council is empowered to employ, discharge and fix the salaries of
such technical, clerical, stenographic and such other employees and
assistants as may be required. All of such employees shall be
paid from funds appropriated to the council.
455A. 11 Bonds. The council shall provide for the execution
of surety bonds for all members and employees who shall be eh-
trusted with funds and property and the premiums on all such surety
bonds shall be paid from the funds appropriated to the council.
455A. 12 Warrants. The comptroller is directed to draw war-
rants on the treasurer of the state for all disbursements authorized
by this chapter upon duly itemized and verified vouchers bearing the
approval of the director of the council.
455A. 13 Reports, accounting and recommendations. The coun-
cil shall make a report to the governor of its activities for the pre-
ceding biennial period, including therein an itemized statement of
all receipts and disbursements and such other information pertaining
to its work as may be of value.








AND THE LAW 605

The council in its biennial report shall make such recommenda-
tions for amendments to this chapter, or for other legislation as it
deems appropriate.
The council shall report to the governor at any time required,
the results accomplished since its last report, pending plans and
the status of any work or plans in progress.
455A. 14 Departmental co-operation. The council may request
and receive from any department, division, board, bureau, commis-
sion, public body, or agency of the state, or of any political sub-
division thereof, or from any organization, incorporated or unincor-
porated, which has for its object the control or use of any of the
water resources of the state, such assistance and data as will en-
able the council to properly carry out its activities and effectuate
its purposes hereunder. The council shall reimburse such agencies
for special expense resulting from expenditures not normally a part
of the operating expenses of any such agency.
The council, its agents and other employees may enter upon any
lands or waters in the state for the purpose of making any investi-
gation, examination, or survey contemplated by this chapter.
455A. 15 Eminent domain. The council shall have the right to
exercise the power of eminent domain. All the provisions of law
relating to condemnation of lands for public state purposes shall
apply to the provisions hereof in and so far as applicable. The ex-
ecutive council shall institute and maintain such proceedings.
The council may accept gifts, contributions, donations and
grants, and use the same for any purpose within the scope of this
chapter.
455A. 16 Title to lands and other property. The title to all
lands, easements, or other interest therein, or other property or
rights acquired by the council shall be approved by the attorney
general and taken in the name of the state of Iowa.
455A. 17 Functions and duties. The council shall establish a
comprehensive state-wide program of flood control; and a compre-
hensive state-wide program for the conservation, development and
use of the water resources of the state. The council shall admin-
ister said programs.
455A. 18 Jurisdiction. The council shall have jurisdiction
over the public and private waters in the state and the lands ad-
jacent thereto necessary for the purposes of carrying out the provi-
sions of this chapter. The council shall make a comprehensive
study and investigation of all pertinent conditions of the areas in the


i --.d








606 WATER RESOURCES

state affected by floods; determine the best method and manner of
establishing flood control; adopt and establish a comprehensive plan
for flood control for all the areas of the state subject to floods; and
determine the best and most practical method and manner of estab-
lishing and constructing the necessary flood control works. The
council may construct flood control works or any part thereof. The
council is authorized to perform such duties in co-operation with
other states or any agency thereof, or with the United States or any
a agency of the United States, or with any person as defined in this
Chapter.
The council shall procure and obtain flood control works from
ry. and through or by co-operation with the United States, or any agency
of the United States, by co-operation with and action of the cities,
towns and other subdivisions of the state, under the laws of the
state relating to flood control and water use, and by co-operation
with and action of landowners in areas affected thereby.
The council shall make surveys and investigations of the water
resources of the state and of the problems of agriculture, industry,
conservation, health, stream pollution and allied matters as they re-
late to flood control and water resources, and shall make and form-
ulate plans and recommendations for the further development, pro-
tection, utilization, and preservation of the water resources of the
state.
Upon application by any person for permission to divert, pump,
or otherwise take waters from any watercourse, underground basin
or watercourse, drainage ditch or settling basin within the state of
Iowa for any purpose other than a nonregulated use, the council
shall cause to be made an investigation of the effect of such use
upon the natural flow of such watercourse and also the effect of any
such use upon the owners of any land which might be affected by
such use and shall hold a hearing thereon.
The procedure for securing a permit to divert, store or with-
draw waters shall be as follows:
1. The application for a permit shall be made in writing to the
council and shall set forth the designated beneficial use for which
the permit is sought, the specific limits as to quantity, time, place,
and rate of diversion, storage or withdrawal of waters.
2. Upon receipt of an application for a permit, the water com-
missioner shall set a time and place for hearing. The hearing shall
be in the county where the permit is sought, but may be held at
any other place in the state unless objection is raised by the appli-
cant. The hearing shall be to the water commissioner.
3. The water commissioner shall cause notice of the hearing to
be published in a newspaper of general circulation in the county in








SAND THE LAW


which the permit is sought. Said notice shall be published once
each week for two consecutive weeks, with the date of last publica-
tion not less than ten (10) nor more thati thirty (30) days prior to
the date of hearing and, said notice shall be on a form provided by
the council which shall specify the date, time and place .of hearing
and shall include a concise statement of the designated beneficial
purposes for which diversion is sought, the specific limits as to .
quality, time, place, and rate of diversion, storage or withdrawajn.t
of waters, the name of the applicant and the description of the
upon which waters are to be diverted, stored or withdrawn. 'Iu'
Edition to'the foregoing, the water commissioner shall cause a
of the notice to be sent to the director of the conservation com
sion, commissioner of public health, the secretary of the soil coRw-.
servation committee, secretary of agriculture, director of the Iowa4"
geological survey, the director of the Iowa. development commissatn,
and to any other person who has filed a written request for a noti-f
fiction of any hearings affecting a designated area, by ordinary
mail, prior to the date of last publication.
4. Any interested person may appear and present evidence at
the hearing, and may be represented by counsel,, who shall have the
right to question others who present evidence.
5. The applicant for a permit shall pay a fee to the council in
the amount of ten ($10.00) dollars at the time of filing his applica-
tion which fee shall include the cost of publishing notice and which
publication shall then be paid for by the council.
6. The council shall prescribe the rules of procedure for the
conduct of the hearings.
7. The determination of the water commissioner on any appli-
cation before him shall be in writing, filed with the council and
shall set forth his findings. A copy of the determination shall be
mailed to the applicant and to any person appearing who in writing
requests a copy of the determination.
8. Any party aggrieved by the determination of the water com-
missioner may, within thirty (30) days from the date such determi-
nation is filed, appeal therefrom to the council setting forth in gen-
eral terms the determination appealed from, and the grounds of the
appeal. The director shall set a time and place for hearing before
the council and shall then send a notice by ordinary mail to all per-
sons who appeared at the hearing before the water commissioner.
9. The council shall adopt rules and regulations for the conduct
of the hearing on appeal and shall file a determination in writing,
setting forth findings. A copy of the determination shall be mailed
to the applicant or to any person appearing who in writing requests
a copy of the determination.



I i i I l H ~ l i i i i








WATER RESOURCES


10. The water commissioner or the council at any hearing or
other proceeding authorized by this Act, shall have the power to ad-
minister oaths; take testimony; issue subpoenas and compel the at-
tendance of witnesses, the subpoenas shall be served in the same
manner as subpoenas issued by the courts of the state; and to order
the taking of depositions in the same manner as depositions are
taken under the Iowa Rules of Civil Procedure.
If the water commissioner at the first hearing or the council at
the hearing on appeal shall determine after due investigation that
such diversion, storage or withdrawal will not be detrimental to the
public interests, including drainage and levee districts, or to the
interests of property owners with prior or superior rights who might
be affected, the water commissioner following the first hearing, or
the council following the hearing on appeal shall grant a permit for
such diversion, storage or withdrawal. Any person or public body
aggrieved by the granting of such permit may appeal as provided by
/ section four hundred fifty-five A point twenty-three (455A. 23)._.p.
mits may aj pr anvy erid nf tima ,, ,...r ten
years. Permits may be granted which press diver-
sion, age, or withdrawal of waters than set forth in the applica-
tion. Permits may be extended by the water commissioner beyond
the period for which granted without hearing if no objection is raised,
but if written objection is filed by any aggrieved person shown to
have an interest, a hearing shall be held thereon. Any permit
granted shall remain as an appurtenance of the land described in the
application unless disposed of otherwise.
In the consideration of applications for permits, priority will be
given to persons in the order applications are received. However,
persons who have made diversion or withdrawal of water for a bene-
ficial use prior to the effective date of this Act will be accorded
priority according to the actual date of said diversion or withdrawal.
The water commissioner or the council on appeal shall exercise
their judgment on the quantity of water for which a permit may be
granted. The use of water for ordinary household purposes, for
poultry, livestock and domestic animals shall have priority over
other uses. Any person with an existing irrigation system in use
prior to the effective date of this Act shall be issued a permit to
continue, unless by the use thereof some other riparian user is
damaged. In the consideration of applications for permits by regu-
lated users, the declared policies and principles of beneficial use,
as set forth in this chapter, shall be the standard for the determi-
nation of the disposition of the applications for said permits. Nothing
in this chapter shall impair the vested right of any person. Prior
orders of the council shall not be invalidated by the provisions of
this Act.








AND THE LAW


The water commissioner and the council shall have the authori-
ty to issue a permit for beneficial use of water in a watercourse
provided the established average minimum flow is preserved.
No use of water shall be authorized that will impair the effect
of pollution control laws of this state.
No permit shall be issued or continued that will impair the navi-
gability of any navigable watercourse.
For the purpose of administering this Act, a permit as herein
provided shall be required for the following:
1. Any municipal corporation or person supplying a municipal
corporation which increases its water use in excess of one hundred
thousand (100,000) gallons, or three percent (3%),, whichever is the
greater, per day more than its highest per day beneficial use prior
to the effective date of this Act. Such corporation or person shall-
make reasonable provisions for the storage of water at such time
or times when the daily use of such water by such corporation or
person Is less than the amount specified herein.
2. Except for a ndnregulated use, any person using in excess
of five thousand (5,000) gallons of water per day, diverted, "stored,
or withdrawn from any source of supply except a municipal water
system or any other source specifically exempted under the provi-
sions of this Act.
3. Any person who diverts water or any material from the sur-
face directly into any underground watercourse or basin. Provided,
however, that any diversion of water or material from the surface
directly into any underground watercourse or basin existing upon-the
effective date of this Act shall not require a permit if said diver-
sion does not create waste or pollution.
4. Industrial users of water having their own water supply,
within the territorial boundaries of municipal corporations, shall be
regulated when such water use exceeds three percent (3%) more
than the highest per day beneficial use prior to the .effective date of
this Act.
No person shall take water from any natural watercourse, under-
ground basin or watercourse, drainage ditch, or settling basin with-
in the state of Iowa for any purpose other than a nonregulated use
except upon compliance with the provisions of this Act, provided
that existing uses may be continued during the period of the pend-
ency of an application for a permit.
Nothing in this Act shall operate to deprive any person of the
right to use diffused waters, or to drain land by use of tile, open
ditch or surface drainage, or to construct an impoundment on said
person's property or across a stream that originates on said per-
son's property so long as provision is made for safe construction








WATER RESOURCES


and for continued established average minimum flow, if and when
such flow is required to protect the rights of water users below.
Every permit issued hereunder shall be irrevocable for the term
therefore, and for any extension of such term except as follows:
1. A permit may be'modified or cancelled by the water com-
missioner with the consent of the permitted.
S2. Subject to appeal in the manner provided by section nine (9),
subsection eight (8), of this Act, a permit may be modified or can-
celled by the water commissioner in case of any breach of the
terms or conditions thereof or in case of any violation of the law
pertaining thereto by the permitted, his agents or servants, in case
of non-use as provided hereinafter, or in case the water commis-
sioner finds such modification or cancellation necessary to protect
the. public health or safety or to protect the public interests in lands
or waters, or to prevent substantial injury to persons or property
in any manner, upon at least thirty (30) days written notice mailed
to the permitted at his last known address, stating the grounds of
the proposed modification or cancellation and giving the permitted
an opportunity to be heard thereon.
3. By written order to the permitted, the water commissioner
may forthwith suspend operations under a permit if he finds it nec-
essary in an emergency to protect the public health or safety or to
protect the public interests in lands or waters against imminent
danger of substantial injury in any manner or to any extent not ex-
pressly authorized by the permit, or to protect persons or property
against such danger, may require the permitted to take any meas-
ures necessary to prevent or remedy such injury; provided, that no
such order shall be in effect for more than thirty (30) days from
the date thereof, without giving the permitted at least ten (10) days
written notice of such order and an opportunity to be heard thereon.
The right of the permitted and his successors to the use of
water shall terminate when he ceases for three (3) consecutive years
to use it for the specific beneficial purpose authorized in his permit
and the permitted has been notified by the water commission that
unless written application as set forth as follows, that the permit
will cease; provided, however, that upon his written application
prior to the expiration of said three-year period for extension of
said permit, the council may grant such extension without loss of
priority.
A permitted may sell, transfer, or assign his permit by con-
veying, leasing, or otherwise transferring the ownership of the land
described in the permit, but such permit shall not constitute owner-
ship or absolute rights of use of such waters, but such waters shall
remain subject to the principle of beneficial use and the orders of
the council.








AND THE LAW


The state of Iowa, any subdivision thereof, or municipal cor-
poration, for the purpose of carrying out any permission granted,
as hereinafter provided, shall have and exercise the power of emi-
nent domain.
455A. 19 Unlawful acts-powers of council. It shall be unlaw-
ful to suffer or permit any structure, dam, obstruction, deposit or
excavation to be erected, used, or maintained in or on any flood-
way, which will adversely affect the efficiency of or unduly re-
strict the capacity of the floodway, and the same are declared to
be and to constitute public nuisances, provided, however, that this
provision shall not apply to dams constructed and operated under
the authority of chapter 469 as amended.
The council shall have the power to commence, maintain and
prosecute any appropriate action to enjoin or abate a nuisance, in-
cluding any of the foregoing nuisances and any other nuisance which
adversely affects flood control.
In the event any person desires to erect or make, or to suffer
or permit, a structure, dam, obstruction, deposit or excavation
other than a dam, constructed and operated under the authority of
chapter 469 as amended, to be erected, made, used or maintained
in or on any floodway, such person shall file a verified written ap-
plication with the council setting forth the material facts, and the
council on hearing shall enter an order, determining the fact and
permitting or prohibiting the same.
The council shall have the authority to maintain an action in
equity to enjoin any such person from erecting or making or suffer-
ing or permitting to be made any structure, dam, obstruction, de-
posit, or excavation other than a dam constructed and operated under
the authority of chapter four hundred sixty-nine (469) of the Code,
for which a permit has not been granted.
The council shall have the power to remove or eliminate any
structure, dam, obstruction, deposit or excavation in any floodway
which adversely affects the efficiency of or unduly restricts the
capacity of the floodway, by an action in condemnation, and in as-
sessing the damages in such proceeding, the appraisers and the
court shall take into consideration whether the structure, dam, ob-
struction, deposit or excavation is lawfully in or on the floodway.
455A. 20 Additional powers-licensing of dams. After April 17,
1949 the term "council," as used in chapter 469, shall be construed
to refer to the IoWa natural resources council unless specifically
otherwise provided.
455A. 21 Council floodway. The council may by order estab-
lish a floodway as a council floodway and alter, change, or revoke








WATER RESOURCES


and terminate the same. In the order establishing the council flood-
way, the council shall fix the length thereof at any practical dis-
tance, and fix the width or the landside limits thereof, so as to in-
clude portions of the flood plains adjoining the channel, which with
the channel, are reasonably required to efficiently carry and dis-
charge the flood waters or flood flow of such river or stream. No
order establishing a council floodway shall be issued until due no-
tice of the proposed establishment of such floodway shall have been
given and public hearings afforded, and opportunity given for the
presentation of all protests against the establishment of such flood-
way. In establishing any council floodway the council shall avoid
to the greatest possible degree the evacuation of persons residing
in the area of any floodway and the removal of any residential
structures occupied by such persons in the area of any floodway.
All of the area within a council floodway shall be the floodway for
all purposes of this chapter.
455A. 22 Flood control works co-ordinated. All works of any
nature for flood control in the state, which are hereafter estab-
lished and constructed, shall be co-ordinated in design, construc-
tion and operation, according to sound and accepted engineering
practices so as to effect the best flood control obtainable through-
out the state. No' person shall construct or install any works of
any nature for flood control unless and until the proposed works
and the plans and specifications therefore are approved by the coun-
cil. The interested persons shall file a verified written applica-
tion with the council therefore, and the council on hearing shall con-
sider all the pertinent facts relating to the proposed works which
will affect flood control in the state and shall determine whether
the proposed works in the plans and specifications will be in aid of
and acceptable as part of, or will adversely affect and interfere
with flood control in the state, and shall enter an order approving
or disapproving the application, plans and specifications. In the
event of disapproval, the order shall set forth the objectionable
features so that the proposed works and the plans and specifications
therefore may be corrected or adjusted to obtain the approval of the
council.
The provisions. of .this section shall apply to all drainage dis-
tricts, soil conservation districts, projects undertaken by the state
conservation commission, all public agencies including counties,
cities, towns and all political subdivisions of the state and to all
privately undertaken projects relating to or affecting flood control.
455A. 23 Appeal. Any person aggrieved by any of the acts
or orders of the council shall have the right to appeal therefrom







AND THE LAW 613

to the district court at the seat of government or to the district
court of any county in which the property affected is located, by fil-
ing with the council a notice of such appeal within thirty days from
the date of such action or order. The notice of appeal shall state
the grounds of appeal. When an appeal is taken, the council shall
forthwith cause to be made a certified transcript of all proceedings
had and all orders made and shall file the same with the clerk of
the district court where the appeal is pending.
Upon such appeal being perfected, it shall be brought on for
trial at any time by either party upon ten days notice to the other,
and shall be tried by the court de novo. At such trial the burden
of proof that any acts and orders of the council from which appeal
is taken are reasonable and necessary shall be upon the council. If
the court shall determine that the order appealed from is reason-
able and necessary, it shall be affirmed. If the court finds that
the drder appealed from is unjust, unreasonable or not supported by
the evidence it shall make such order to take the place of the order
appealed from as is justified by the record before it.
Any person aggrieved may appeal to the supreme court from
the judgment of the district court made therein as in a civil action.
The pendency of any such appeal shall not stay the operation of
the order of the council but the district court or the supreme court
in their discretion may suspend the operation of the council order
pending determination of the appeal, provided, the appellant shall
file an appropriate bond approved by the court.
455A. 24 Executive prerogatives. The council shall have no
executive prerogatives outside of its own duties and functions as set
out by this chapter and shall not disturb the work, functions or
authority of any of the several state or local agencies and institu-
tions, provided the powers conferred upon the council by this chapter
shall not be exercised by any other of the agencies or institutions.
455A. 25 Unauthorized depleting uses. In the event that any
person shall file a complaint with the council that any other person
is making a depleting use of water not expressly exempted as a non-
regulated use under the provisions of this chapter and without a
permit to do so, the council shall cause an investigation to be made
and if the facts stated in the complaint are verified the council
shall order the discontinuance of the use.
455A. 26 Penalties. Whoever is convicted of erecting, caus-
ing or continuing a common or public nuisance, as provided in this
chapter, or whoever diverts or withdraws water in violation of the
provisions of this chapter, upon conviction, shall be fined not







614

exceeding one hundred dollars or be imprisoned in the county jail
not exceeding thirty days.
If any provision of this chapter or the application of such pro-
vision to any person or circumstance shall be held invalid, the re-
mainder of,this Act or the application of such provision to persons
or circumstances other than those to which it is held invalid, shall
not be affected thereby.
This Act being deemed of immediate importance shall be in full
force and effect immediately upon its publication in the Davis County
Republican, a newspaper published in Bloomfield, Iowa, and the
Britt News-Tribune, a newspaper published in Britt, Iowa.


_ _


J da"' ^460




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs