What would you say if someone form a town up to 10 miles away came by and said you have to have a permit from the town to continue operating your well for livestock or irrigation, and withdrawing water from the underground aquifer that feeds the well? And if you lived in between two towns, and within 10 miles of both, what would you say fi someone from both towns showed up at the barn yard gate?
That was the unbelievable but potential reality after the Indiana Supreme Court decided a case in December that involved water rights related to an underground aquifer in the Avon area in Hendricks County, notes Kent Yeager of Indiana Farm Bureau, Inc. "No one could really understand how the court came up with that ruling, not even our attorneys," he says. Nevertheless, left alone in the absence of law passed by legislators, such cases often become case law and could be used as the basis for deciding future cases.
Current law existing before this session defines water courses. The intent, Yeager firmly believes, was for waterways above ground. The language talked about water that flows. The Indiana Supreme Court's ruling in the Avon case somehow counted aquifers as watercourses, although it's unclear and difficult to determine their boundaries, and whether or not they actually flow over time.
The legislation clearly states that towns do not have this jurisdiction. Passage of the law eliminates the possibility that livestock producers and farmers several miles from town could be regulated by town officials for pulling water from underground aquifers through wells.
Besides the wrong-headedness of the idea, Yeager said it would have been difficult to determine and enforce. There are too many places in Indiana where farmers would have been covered by at least two, if not three, 10-mile limits from towns.Now that the legislation was passed and once it becomes law, Yeager does not expect further problems with this issue.