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Osborne v. Iowa Natural Resources Council

Citation: 14 ELR 20038
No. No. 68766, 336 N.W.2d 745/(Iowa, 07/20/1983)

The court holds that the state Natural Resources Council may add conditions to an after-the-fact floodplain construction permit to protect the stream and associated wildlife. The lower court had held that the Council's only remedy was to seek abatement of the construction. First, the court determines that it has jurisdiction to hear the appeal. It [14 ELR 20039] rules that the Council had statutory authority to impose conditions on the approval of the appellee's after-the-fact application for a permit to construct a levee and to channel a creek. The court holds that the condition requiring relocation of a levee is reasonable because the evidence shows that the levee has caused increased backwater flood stage, flood velocity, and soil erosion. The court holds a channel-realignment condition reasonable because the existing channel has caused an abrupt transition problem in a downstream natural channel in violation of the Council's rules. The court holds that the Council has statutory authority to consider the effects of the construction on fish and wildlife. It then rules that conditioning the construction permit on the dedication of a 25-foot-wide strip of land on either side of the channel for wildlife habitat is a reasonable means to compensate for the loss of fish population.

Counsel for Appellant
Thomas J. Miller, Elizabeth M. Osenbaugh, Ass't Attorneys General
Hoover Bldg., Des Moines IA 50319
(515) 281-5164

Counsel for Appellee
Gordon K. Darling
Darling, Chickering & Darling
53 Jefferson St., Winterset IA 50273
(515) 996-2536

Considered by REYNOLDSON, C.J., and McCORMICK, SCHULTZ, CARTER, and WOLLE, JJ.