ILNews

COA affirms Avon ordinance invalid

Back to TopCommentsE-mailPrintBookmark and Share

The Town of Avon’s attempt to regulate by ordinance a township and conservancy district’s ability to remove and sell groundwater located in a park failed because the ordinance violated Indiana law, the Indiana Court of Appeals held today.

The West Central Conservancy District was in the process of studying and attempting to provide a water supply based on the discovery of water aquifers under Washington Township’s Community Park when Avon enacted an ordinance to control and regulate taking of water from a watercourse. The ordinance gave Avon the exclusive right to control and regulate water within 10 miles of the town’s municipal limits and only the town could sell and distribute water. The ordinance defined watercourses, but the statute the ordinance relies on doesn’t mention groundwater, aquifers, or any water that is below ground.

The WCCD and township sued claiming the ordinance violated the Home Rule Act because only state agencies can regulate surface and groundwater. The trial court granted summary judgment in favor of WCCD and the township.

Avon can regulate watercourses, but its regulation in the instant case hinges on whether an aquifer is a “watercourse” under Indiana law. In Town of Avon v. West Central Conservancy District, et al., No. 32A05-1003-PL-149, the Court of Appeals upheld the lower court’s decision, finding aquifers are not considered a “watercourse” under Indiana Code Section 36-5-2-10.

“More particularly, the Park’s aquifers and groundwater are not lakes, rivers, or streams, and the definition of ‘watercourse' in Indiana Code section 36-9-1-10 necessarily includes only bodies of water like lakes, rivers, and streams. Indeed, the General Assembly would have simply used the term ‘water’ or even ‘aquifers’ or ‘groundwater’ in the Watercourse Statutes if it intended such a broad sweep,” wrote Chief Judge John Baker.

Because an aquifer is not a watercourse, Avon has no authority to restrict what the WCCD and township choose to do with the groundwater in the aquifers.

In addition, the appellate court held the Home Rule act doesn’t grant Avon the authority to regulate in accordance with its inherent police powers and the town lacks the authority to review, regulate, or impose duties on the WCCD or township’s exercise of power to sell the groundwater under the Park Resource Statute. Avon can’t interfere with WCCD and the township’s common law right to use the groundwater in its aquifers as it sees fits, wrote the chief judge.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. The is an unsigned editorial masquerading as a news story. Almost everyone quoted was biased in favor of letting all illegal immigrants remain in the U.S. (Ignoring that Obama deported 3.5 million in 8 years). For some reason Obama enforcing part of the immigration laws was O.K. but Trump enforcing additional parts is terrible. I have listed to press conferences and explanations of the Homeland Security memos and I gather from them that less than 1 million will be targeted for deportation, the "dreamers" will be left alone and illegals arriving in the last two years -- especially those arriving very recently -- will be subject to deportation but after the criminals. This will not substantially affect the GDP negatively, especially as it will take place over a number of years. I personally think this is a rational approach to the illegal immigration problem. It may cause Congress to finally pass new immigration laws rationalizing the whole immigration situation.

  2. Mr. Straw, I hope you prevail in the fight. Please show us fellow American's that there is a way to fight the corrupted justice system and make them an example that you and others will not be treated unfairly. I hope you the best and good luck....

  3. @ President Snow - Nah, why try to fix something that ain't broken??? You do make an excellent point. I am sure some Mickey or Minnie Mouse will take Ruckers seat, I wonder how his retirement planning is coming along???

  4. Can someone please explain why Judge Barnes, Judge Mathias and Chief Judge Vaidik thought it was OK to re weigh the evidence blatantly knowing that by doing so was against the rules and went ahead and voted in favor of the father? I would love to ask them WHY??? I would also like to ask the three Supreme Justices why they thought it was OK too.

  5. How nice, on the day of my car accident on the way to work at the Indiana Supreme Court. Unlike the others, I did not steal any money or do ANYTHING unethical whatsoever. I am suing the Indiana Supreme Court and appealed the failure of the district court in SDIN to protect me. I am suing the federal judge because she failed to protect me and her abandonment of jurisdiction leaves her open to lawsuits because she stripped herself of immunity. I am a candidate for Indiana Supreme Court justice, and they imposed just enough sanction so that I am made ineligible. I am asking the 7th Circuit to remove all of them and appoint me as the new Chief Justice of Indiana. That's what they get for dishonoring my sacrifice and and violating the ADA in about 50 different ways.

ADVERTISEMENT