Water and Wastewater

The Energy, Telecommunications and Utilities Practice Group of Barnes & Thornburg has a water and wastewater practice that spans the entire spectrum of utility and environmental regulatory and related issues. The practice group represents all types of clients, including investor-owned utilities, municipal utilities, conservancy districts, regional water and sewer districts, industrial customers, and real estate developers. Our water and wastewater work includes:

  • rates and charges
  • service area authority
  • territorial disputes
  • mergers and acquisitions
  • zoning
  • environmental regulation and litigation
  • financings
  • condemnation
  • receivership
  • main extension agreements
  • utility service agreements
  • privatization
  • lobbying
  • local government law
  • annexation

Rate Cases
In recent years, our practice group has litigated dozens of rate cases on behalf of water or wastewater utilities before the Indiana Utility Regulatory Commission. Recent notable cases include obtaining approval for the first time in Indiana of single-tariff pricing for the state's largest water and sewer utility which will allow the company to have common rates for all of its operations throughout the state. We also litigated a series of cases resulting in establishment of the standards which the Indiana Commission will apply to determine whether to permit favorable ratemaking treatment for acquisition adjustments, such as when the fair value of the acquired utility's property exceeds its original cost or when the public interest is served by the acquisition of a troubled water utility by a stronger one. In addition, we successfully defended a challenge of excess capacity and received a precedent-setting order defining the test for including capacity increases in a utility's rate base. The practice group also obtained Indiana Commission preapproval for a wastewater utility's substantial capital improvements, a case which established the standard by which future requests for preapproval will be judged.

Municipal Utility Rates
Our practice is not limited to commission-regulated utilities. Customer appeals of rate ordinances adopted by municipalities that have withdrawn from commission jurisdiction are occurring with far greater frequency. Such appeals are tried to the local circuit or superior court, and our practice group has tried three such challenges since 2000. We have also handled other appeals which were dismissed or withdrawn prior to judgment. The most significant of the trials are those which have involved out-of-town rate surcharges. Our practice group represented the municipality at trial and on appeal in Farley Neighborhood Assoc. v. Town of Speedway, 765 N.E.2d 1226 (Ind. 2002), the seminal Indiana Supreme Court opinion on out-of-town rates.

Service Area Matters
Competition in water and wastewater services is ever-increasing, and the practice group is poised to assist its clients in meeting it. The practice group has successfully litigated the only two fully litigated territorial disputes between Indiana water utilities. We have also obtained certificates of territorial authority for wastewater utilities. We continuously advise our clients concerning their service-area rights vis-a-vis competing investor-owned utilities, municipal utilities, regional water and sewer districts, conservancy districts, and not-for-profit utilities.

Acquisitions
The practice group has also been retained in mergers and acquisitions of all sizes and types. Our lawyers have recently handled regulatory approval proceedings for four large water utility mergers and acquisitions which involved the Indiana utility subsidiaries of four national water utility holding companies. The lawyers have also handled numerous acquisitions of smaller utilities. In the past decade, our lawyers have handled at least 18 water or wastewater acquisitions. These matters have typically involved negotiation of acquisition agreements, obtaining necessary regulatory approvals, and closing the transaction.