ILNews

Supreme Court rules town can regulate aquifer's water use

Back to TopCommentsE-mailPrintBookmark and Share

Underground aquifers are “watercourses” as defined by state law and as a result the Indiana Supreme Court says community officials have the ability to reasonably regulate how that water is taken out and used by other local governments.

The justices issued a decision Tuesday in Town of Avon v. West Central Conservancy District, Washington Township, et. al., No. 32S05-1104-PL-217, ruling on a water control case involving an aquifer located in Avon from which a township and conservancy district want to withdraw water.

Avon passed an ordinance in 2008 that exercised the town’s power to “establish, maintain, control, and regulate the taking of water, or causing or permitting water to escape, from a watercourse both inside and within 10 miles of the municipal limits.” The ordinance prohibited anyone from taking water for retail, wholesale or other mass distribution unless done by or on behalf of Avon. Within that definition of “watercourse,” the town included lakes, rivers, aquifers, groundwater and other water bodies above or below ground. Washington Township and the WCCD started exploring in 2005 the possibility of drilling wells into the underground water source known as the White Luck Creek Aquifer and then withdrawing and selling water to third parties. The two entities opposed Avon’s ordinance.

The township and conservancy district argued that Avon’s ordinance is invalid because it conflicts with state statutes that do not include aquifers in the definition of a “watercourse.” Both also contended that Indiana’s Home Rule Act and other state regulations pre-empt the town’s ordinance and that they have the common law right to withdraw the groundwater from the Avon aquifer.

Hendricks Superior Judge Mark Smith denied summary judgment for Avon and found in favor of Washington Township and WCCD, and last year the Indiana Court of Appeals affirmed that judgment. But the Supreme Court disagreed, reversing the trial court’s findings and holding that the Home Rule Act does permit Avon to regulate another political unit’s attempt to withdraw water from an aquifer that is a “watercourse.”

Chief Justice Randall T. Shepard authored the 15-page unanimous ruling, which looked at the critical question of whether an aquifer is a “watercourse.” Indiana Code 36-9-1-10 defines that term as including "lakes, rivers, streams, and any other body of water.”

Shepard wrote that the statutory phrase “any other body water” refers to anything that satisfies the common law definition of a watercourse – specifically a water body that has defined banks, bottom and channel. The court also looked at the fact-specific nature of the particular water source, such as its design, flow and history.

“While we stop short of declaring a bright-line rule that all aquifers are watercourses, we must reject the demand for a bright-line rule to the contrary,” Shepard wrote, saying that the White Lick Creek Aquifer is a watercourse under Indiana law.

Avon argued it has the authority to enact a generally applicable regulation about the aquifer and impose duties through that ordinance on other political subdivisions, and the justices agreed the state’s Home Rule Act doesn’t prevent that. Other state law, known as the Park Resources Statutes, seems to conflict but the justices read them together in order to harmonize the effects of both.

As a result, the township retains the power to sell, lease or enter into a royalty contract with respect to the aquifer as long as it has Avon’s approval, Shepard wrote. Avon has not yet established its permitting process so the court can’t determine whether any additional regulations are reasonable and logically consistent with the rest of the state statutes.

The court also found that state agencies and departments can engage in regional or statewide regulation of water bodies at the same time as local government units have authority over watercourses in their own jurisdictions.

 

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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

ADVERTISEMENT