Cynthia Hoye, Executive Director
AGO 2017-4
Official Opinion 2017-4
Indiana Attorney General Opinions
State of Indiana Office of the Attorney General
August 14, 2017
Cynthia
Hoye, Executive Director
Indiana
State Fair Commission
1202
East 38th Street
Indianapolis,
Indiana 46205
RE:
Deep Tunnel Easement Beneath Indiana State Fairgrounds
Dear
Ms. Hoye:
YOUR
REQUEST
I am in
receipt of an e-mail message dated July 7, 2017, from Will
Forrest, your Director of Legal Affairs at the Indiana State
Fair Commission.
FACTUAL
BACKGROUND
As Mr.
Forrest relates, Citizens Energy Group
("Citizens"), an Indianapolis utility, wishes to
begin building immediately a deep tunnel under the State
Fairgrounds[1] property. The tunnel is a massive
public works project slated to be in full operation some time
during the year 2025.[2] Penetrating down to the bedrock some
250 feet below the level of the carnival Midway and the Dairy
Barn, this tunnel will surely earn its collective nickname as
a part of the "Big Dig."
The
"Dig" moniker refers to an ambitious series of
engineering projects to be carried out over the course of the
next decade, following on the terms of Indianapolis'
execution of a consent decree with the U.S. Environmental
Protection Agency (represented in this case by its Region V
office in Chicago). According to the planning documents, 17
more tunnels are slated to follow at various locations around
the county. The goal of this enormous undertaking is to
curtail the long-time "combined sewer overflow"
problem. Common to many older cities, the combined sewer
overflow problem is caused by disintegrating pipes and an
unsophisticated century-old infrastructure design. This
witches' brew of dirty water and harmful bacteria,
conveyed through corroded, crumbling conduit, is no longer
acceptable to federal water-quality regulators. An
overwhelmed system capacity, particularly during significant
precipitation events, allows human waste to flow into the
city's rivers.
In
order to build and operate this improvement, Citizens is
seeking from the Commission a perpetual easement for a deep
sewer tunnel under the Fairgrounds in furtherance of the
City's ongoing remediation project for untreated
wastewater discharges. While the Commission is not opposed to
granting an easement for this purpose, our opinion is still
being sought in order to determine whether the Commission has
statutory authority to grant such an easement without having
to pass special legislation allowing it to do so.
BRIEF
ANSWER
The
answer to the question of whether the...
