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. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

  3. A competitive bid process is ethical and appropriate especially when dealing with government agencies and large corporations, but an ethical line is crossed when court reporters in Pittsburgh start charging exorbitant fees on opposing counsel. This fee shifting isn't just financially biased, it undermines the entire justice system, giving advantages to those that can afford litigation the most. It makes no sense.

  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

  5. I have a appeals hearing for the renewal of my LPN licenses and I need an attorney, the ones I have spoke to so far want the money up front and I cant afford that. I was wondering if you could help me find one that takes payments or even a pro bono one. I live in Indiana just north of Indianapolis.

ADVERTISEMENT