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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT