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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

ADVERTISEMENT