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  • Posts by David McGimpsey
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    Dave is Chair of the Utilities and Environmental Practice Group. He counsels clients on regulatory and transactional matters involving businesses, real estate, utilities and energy. He advises clients on a broad range of issues ...

A recent order of the Indiana Utility Regulatory Commission (“IURC”) sheds lights on the validity of municipal ordinances purporting to require utilities to pay the costs of utility relocations. The IURC voided a municipal ordinance that attempted to require utilities to pay relocation costs as being unreasonable and inconsistent with Ind. Code 8-1-2. In the Matter of the Complaint of Duke Energy, Cause No. 44804 (Ind.U.R.C. Jan. 23, 2019) (“Decision”).

Are rural water associations that provide both sewer and water services but only receive a federal loan pertaining to one of those services protected under federal statute from encroachment by other utilities? After the Supreme Court of the United States (“SCOTUS”) declined to take a case that would have resolved a Circuit split on this issue, the law remains unclear in most of the country, including Indiana.

A recent Indiana Court of Appeals decision provides valuable practice pointers for municipalities considering the sale of their utilities. Municipalities that do not comply exactly with statute when selling a utility do not necessarily doom the sale. The Court of Appeals’ ruling in NOW!, Inc. v. Indiana-American Water Company, Inc., __ N.E.3d __, 2018 WL 6837732 (Ind. Ct. App. Dec. 31, 2018)[1], affirmed the Indiana Utility Regulatory Commission’s (“IURC”) order approving the sale of the City of Charlestown’s (“City” or “Charlestown”) water utility to a private utility.

The United States Court of Appeals for the Seventh Circuit (the “Seventh Circuit”) recently decided the case of Naperville Smart Meter Awareness v. City of Naperville, 900 F.3d 521 (7th Cir. 2018). The suit brought by Naperville Smart Meter Awareness (“NSMA”) alleged that the collection of smart meter energy-consumption data by the City of Naperville, Illinois, (the “City”) constituted an unreasonable search under the Fourth Amendment of the U.S. Constitution and should be prohibited.[1] The Seventh Circuit made two important holdings in the case. First, it held that the collection of smart meter data is, in fact, a search under the Fourth Amendment. Second, it held that under the specific facts of the case, the City’s smart meter program constitutes a reasonable search and thus does not violate customers’ Fourth Amendment rights.

[1] NSMA also brought state constitutional claims under the Illinois constitution that are not addressed here.

Jenny Kehl, Associate Professor and Director of the Center for Water Policy at the University of Wisconsin-Milwaukee and the Lynde B. Uilhein Endowed Chair at the WATER Institute, discusses virtual water and all it entails.

Scott Miller of Umbaugh discusses municipal water rates. In this long-awaited segment, Scott delves into what elements of cost make up municipal rates. Scott also addresses some common issues encountered during the municipal rate-setting process, whether the utility is in a regulated or unregulated jurisdiction.

John Williams, Chairman and CEO of Impact Infrastructure, Inc., joins The Water Values Podcast and discusses economic assessment of infrastructure projects.

Recently, I was fortunate enough to moderate a panel discussion at the opening plenary session of the American Water Resources Association’s 2016 Annual Conference, which took place in Orlando, Florida.

Posted in Government

Thank you for being a part of the authoritative policy discussions on issues impacting life and business in Indiana during the 25th Annual BGD Legislative Conference at the Indiana Convention Center on December 14.

What a terrific year 2016 has been – thank you for making it so! Without you, the listeners and readers, I wouldn’t have been able to pull of a third year of The Water Values, so a heartfelt thank you to each of you.

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