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Tuesday, November 22, 2011

Ind. Decisions - Supreme Court issues 2nd opinion today

In Town of Avon v. West Central Conservancy District, Washington Township, and Ronnie Austin, in his capacity as Trustee and Park Governor, a 15-page opinion, Chief Justice Shepard writes:

We consider here whether the White Lick Creek Aquifer is a "watercourse" under Indiana law and, if so, whether the Home Rule Act permits the Town of Avon to regulate another political unit‘s attempt to withdraw water from the aquifer. We answer both questions in the affirmative, and further conclude that the Town of Avon‘s proposed regulation is not preempted by statutes authorizing the Department of Natural Resources to regulate aquifers. * * *

[I. Is the White Lick Creek Aquifer a “Watercourse”?]

As we discussed above, our state‘s common-law definition of watercourse has consistently held that whether a body of water has defined banks, bottom, and channel is not conclusive in determining if that body of water is a watercourse. We hold that the phrase "any other body of water" in Indiana Code § 36-9-1-10 refers to any other body of water satisfying our common-law definition of a watercourse. While that body of water‘s similarity to a lake, stream, or river would be informative, it would not be dispositive. This interpretation reflects the fact-specific nature of the inquiry and comports with our presumption that when the Legislature appears to modify the common law by statute, "it is aware of the common law and that its intention is to not change the common law beyond what the express terms of its enactments and fair implications allow." Midtown Chiropractic v. Ill. Farmers Ins. Co., 847 N.E.2d 942, 947 (Ind. 2006). * * *

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 contrary8 Given the evidence presented, we conclude that the facts demonstrate that the White Lick Creek Aquifer is a watercourse under Indiana law. * * *

[II. The Home Rule Act]

In City of Crown Point * * * [we] held that the language "express statutory authority" permits a unit to enforce against another political subdivision "those regulations of general applicability which are specifically authorized by statute."

Avon contends that its authority to regulate the taking of water from a watercourse under the Watercourse Statutes is just such a specific statutory authorization. Therefore, Avon argues, it has authorization to enact a regulation of general applicability (the ordinance), and to impose duties under that ordinance on other political subdivisions. Because we conclude that the Aquifer is a watercourse under the Watercourse Statutes, we agree. * * *

[III. Conflict With, or Preemption by, State Regulations]

The Township and WCCD further argue that the ordinance is invalid because it regulates conduct that is already regulated by Indiana‘s Department of Natural Resources. The argument is two-fold: first, that the Home Rule Act prohibits the regulation of conduct that is already regulated by DNR except as expressly granted by statute, and second, that DNR has exclusive jurisdiction over underground water resources in the State of Indiana. * * *

While DNR‘s statutory authority is extensive, however, it by no means occupies the field with respect to the regulation of groundwater withdrawal. * * *

[IV. Common Law of Groundwater]

Finally, Appellees argue that Avon‘s ordinance interferes with their common-law right to use their groundwater as they wish. This contention, however, rests on the notion that the Aquifer is not a watercourse. * * *

[Conclusion] We reverse the trial court‘s denial of Avon‘s motion for summary judgment and remand.

Posted by Marcia Oddi on November 22, 2011 02:53 PM
Posted to Ind. Sup.Ct. Decisions