In some ways, Indiana is completely unlike Arizona or California when it comes to water. For most of the past 50 years, our focus has been water quality, not quantity. Even now, when it comes to the water question in Indiana (and much of the midwest), the issue is not one of insufficient total water available, but rather of having the right amount of water available at the right time in the right place. Most of our law, therefore, deals with people and property who have too much water rather than too little. (Think common enemy doctrine, government flooding as a taking, and issues with blocked drainage.) And while the Midwest isn’t turning into a desert tomorrow, recent projects have shown the delicate nature of groundwater rights.
For example, many have heard of the LEAP district in Boone County, Indiana. This is a public/private partnership designed to entice industrial and high tech projects like microchip manufacturers and pharmaceutical facilities to come build in Indiana. However, trouble has been brewing over the district’s proposed plan to pump water from a neighboring county. While Indiana has plenty of water, the question becomes whether a specific area has the water it needs at a particular time. Do farmers have enough water during the summer to irrigate their crops? Does a chip manufacturer have the water it needs for cooling purposes? Who “owns” the water beneath our feet?
If we could time travel back 121 years ago to French Lick, Indiana, we’d hear some of the same concerns. In Gagnon v. French Lick Springs, a man who apparently did not particularly enjoy the French Lick resort decided to start pumping out the subsurface mineral waters before the water reached the resort. There was no doubt he had a malicious intent—he took the mineral waters and pumped them directly into a stream. The goal was simply to disrupt the hotel’s business. The Indiana Supreme Court eventually issued an order halting the man’s malicious, wasteful water withdrawal. The Court said that if underground water flows in a definite channel, the same rules apply to it as apply to surface streams, and the landowner cannot use or destroy it at his pleasure. This was especially true when the landowner’s use was simply to harm another water user.
In 1983, the Supreme Court of Indiana clarified the law of subterranean water rights. Wiggins v. Brazil Coal. The defendant had pumped water out of its strip coal mines to continue mining, but in doing so, unknowingly lowered the water level in Mr. Wiggins’ lake. The court held that the mining company had dealt with water in a reasonable way for a beneficial purpose. The Supreme Court explained that groundwater belongs to the owner of the land on which the water is present. It may be put to use to the fullest extent to further enjoyment of the land, but this right does not extend to maliciously causing injury to nearby land.
Two years later, a federal court applied this rule when it considered groundwater rights when a farm drills into an aquifer to irrigate its fields. Prohosky v. Prudential. The parties agreed that Fair Oaks Farm’s use of water to irrigate fields was not malicious and that in general, irrigation was a lawful and beneficial water use. But the trial court held that when the irrigation pivots malfunctioned and sprayed water on I-65, it constituted a waste of groundwater, and so the Court barred the farm from allowing water to discharge through the end guns. On appeal the Seventh Circuit reversed the trial court’s decision because there was no evidence that the malfunction of irrigation pivots actually harmed the plaintiffs.
More recently, in Avon v. West Central Conservancy District, our Supreme Court considered whether the Town of Avon could pass an ordinance limiting the mass withdrawal of water from a subsurface aquifer. The Court concluded that the aquifer in question was a “watercourse” and that Avon was within its Home Rule powers to regulate the taking of water from its watercourses. The Court explained that the DNR’s water regulations did not preempt the local ordinance: “Local governmental units have authority over watercourses within their territorial jurisdiction, and the State retains the authority—through DNR—to engage in regional or statewide regulation as needed. But these two powers can co-exist.”
So where do these cases leave subsurface water rights in Indiana? And will legislation this year change those rights? There are multiple bills this legislation session that would regulate water withdrawals: SB 28 addresses ground water emergencies; SB 4 prohibits water pipeline construction without obtaining a certificate of public convenience and necessity from the Indiana utility regulatory commission. Indiana Farm Bureau is supporting a statewide, dedicated groundwater well monitoring network to inventory current groundwater supply. Some counties are passing water export bans. After more than 100 years of groundwater law development, it seems likely that we will see a change in groundwater rights this year. Keep an eye on the Statehouse to see what form this change takes.
