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COA affirms Avon ordinance invalid

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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.
 

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  1. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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