Homer water sale to coal mine would be legal

HOMER — It appears the village has the legal authority to sell water to Sunrise Coal for its proposed coal mine in Vermilion County, according to Homer Mayor David Lucas.

"It looks pretty definite," said Lucas, who was basing his comments on recent discussions with Village Attorney Paul Hendren, who has reviewed the legal research of another attorney who specializes in municipal utility law. The village hired the special attorney, at the expense of Sunrise Coal, to answer several legal questions regarding whether the southeastern Champaign County village could legally sell hundreds of thousands of gallons of water a day to a coal mine planned by Sunrise, which is based in Terre Haute, Ind.

The Homer Village Board meets at 7 p.m. Monday in the village hall at 500 E. Second St., Homer, and will hear a presentation by Hendren on the special attorney's legal report.

"I'm pleased with the report," Lucas said. "I think it's very positive. It gives us a lot of good information."

Earlier this year, Sunrise Coal asked Homer to supply its proposed Bulldog mine in southwestern Vermilion County with treated water and sewer services as well as 325,000 gallons of raw water a day that would be used in the coal mining process. The raw water supply would eventually increase to 540,000 gallons a day. The village of Homer, which gets its water supply from underground wells west and north of the village near Ogden, uses 120,000 gallons a day.

The request has stirred controversy among residents in the Homer area concerned with how a high level of water extraction might affect the nearby Salt Fork River and underground aquifers that supply drinking water to private wells in the area as well as Homer. Though no specifics have been proposed, village officials have discussed meeting the Sunrise request with water discharged from the village's new sewer treatment plant, water from its underground wells north of the village and water from the Salt Fork River.

The Prairie Rivers Network, a not-for-profit clean water advocacy group that works to protect Illinois' rivers and streams, has been working with local residents who oppose the water request and the mine altogether. And in September, the Ogden Village Board delivered a letter officially notifying Homer that Ogden is opposed to the sale of water to Sunrise.

Prairie Rivers and local residents in opposition to the mine argue that selling water to the mine does pose potential legal ramifications, and they want the village to simply reject Sunrise Coal's request.

In a Sept. 24 memo to Homer officials from attorney Chad S. Beckett on behalf of Prairie Rivers and several individual Homer-area residents, Beckett writes that the sale of water may be unauthorized under Illinois law because the only specific statutes that authorize the sale of water outside a municipality's limits refer to "particular localities" and "specified areas" requesting service rather than a single, non-resident commercial entity.

The memo argues a few other legal points as well.

— Beckett writes that Homer has plenty of capacity to meet its current water needs. But the village needs to build additional infrastructure to meet the water request, which could require the sale of bonds, and a possible referendum, to finance the improvements that "would be solely for the benefit of Sunrise Coal." Beckett states that this affects the village's "ability to use its power of eminent domain to acquire property" to expand it water supply system, because "private property cannot be condemned for a purely private purpose or for a private use which benefits the public only incidentally."

— Beckett references the Illinois Water Use Act of 1983, and states that in "a nutshell, the village's water usage and removal from groundwater or surface sources must be 'reasonable'; otherwise, adjacent landowners and municipalities may have the right to sue for the effects this use has on their property."

— And Beckett states that the village risks major financial losses if Sunrise were to declare bankruptcy.

Lucas said the village had asked the utility attorney to research and respond to five separate legal questions regarding the water request, and those five include the village's statutory authority to sell water outside its municipal boundaries, liability issues and eminent domain.

He said the village board would not be making a decision Monday night on the raw water request but would be discussing the special attorney's report. However, he does anticipate asking for a straw vote on whether to proceed with a contract for the request for treated water and sewer services. He said the village already has a proposed contract from Sunrise for those two items, and he wants to poll the village trustees to see if they want the village to proceed with negotiating that contract.

Lucas said he anticipates tackling the raw-water portion of the request in December with an initial presentation of information, including some sources of well water that could be tapped.

"So we are just kind of moving steadily and with purpose toward the goal of determining if we can or want to fulfill this request. We're taking it a step at a time," he said.

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EL YATIRI wrote on November 10, 2012 at 9:11 am
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It may be legal, but it is foolish and driven by greed.  Long term the decision to sell precious ground water to a mining company will be greatly regreted.

Sid Saltfork wrote on November 10, 2012 at 3:11 pm

"What'cha gonna do when the well runs dry........."   Signs in the area indicate support against the coal mine.  The population seems divided.  Does the village board plan to put the issue on a referendum for the citizens of Homer to vote on?   If not, the citizens need to file a petition to force the matter.  Maybe, it has all been worked out.  The people of Homer handle things well by themselves.  Leaving a decision like this up to a handful of people on a village board would be wrong though.