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Stormwater legal follies: How an essential clean water program in Northeast Ohio is being frustrated in court

David Beach  |  10/30/13 @ 5:00pm  |  Posted in Clean water

Justice is supposed to be blind. But it’s a problem when it’s so blind it can’t even read the law. That seems to be what happened to the Northeast Ohio Regional Sewer District, whose vital stormwater program was recently halted by the Ohio Court of Appeals.

Doan Brook overwhelmed<br />Doan Brook is one of many urban streams that is regularly scoured out and polluted by heavy stormwater flows. This dirty water flows directly to Lake Erie. Rocky River sediment<br />The problem of stormwater washing sediment off the land can be seen at the confluence of the east and west branches of the Rocky River in this 2005 photo. The east branch on the left -- with the brown, sediment-laden water -- had more development activities and more disturbed land. Flood damage<br />Stormwater flows damage infrastructure throughout the region. A Cuyahoga River flood undercut the track of the Cuyahoga Valley Scenic Railroad.

Stormwater is the next step in water quality. Back in the 1970s, the Clean Water Act recognized that it was just as important to manage the dispersed sources of water running off the streets and rooftops and parking lots (nonpoint sources) as it was to control the effluent pipes of industry and sewage treatment plants (point sources). While the gross pollution from the pipes was addressed first, it was always assumed that eventually we would get around to dealing with stormwater.

In recent years, the U.S. EPA has been phasing in stormwater regulations. And this year the Northeast Ohio Regional Sewer District (NEORSD), which serves the City of Cleveland and 61 suburban communities, rolled out a new stormwater program.

The district’s program seeks to provide comprehensive services to reduce the flooding, erosion, and pollution problems caused by stormwater runoff. It’s funded by a small fee based on the amount of impervious surface on a property (for a medium-size residential property, the fee is about $5 per month). This is fair because the amount of water runoff is roughly proportional to the amount of hard surfaces that don’t allow water to soak into the ground. Property owners can reduce the fee by installing rain barrels, rain gardens and other techniques to capture rainwater.

For a number of reasons, it was essential for the sewer district to step up and address the stormwater issue:

  • Stormwater problems are increasing: As development has sprawled over Cuyahoga County and beyond, there are more hard surfaces, more flooding problems, and more costly damage. Climate change will likely exacerbate the problems by increasing the frequency of severe storms.
  • Previous piecemeal efforts were ineffective: It hasn’t worked to deal with stormwater runoff community by community. Watersheds cross community boundaries. So runoff must be addressed in a holistic, cost-effective manner at the regional scale, with everyone helping to pay for stormwater problems. Only NEORSD was in a position to do this.
  • The opportunity for green infrastructure was not being realized: Done right, projects to reduce stormwater problems can have many community benefits. They can include wetland restoration, greenway development, tree canopy expansion, and other techniques that make places healthier and more livable. The new stormwater program has the funding and professional staff to begin thinking about these big-picture benefits.

How the program was stopped

Despite the need, and despite NEORSD’s many efforts to reach out to all the affected communities and address concerns, the stormwater program has been controversial. It’s always hard to sell a new fee, and it was especially hard during a slow economy and when the District was simultaneously raising sewer fees to pay for a federally-mandated program to fix combined sewer overflows.

Anticipating legal challenges, NEORSD asked Cuyahoga Common Pleas Court to affirm its authority to create the stormwater program. In February 2012, the court issued an opinion in which it found that the stormwater fee was authorized under state law, was not restricted by the Sewer District’s Charter, was not an unauthorized tax, and did not violate the parties’ equal protection rights. The court also found the methodology used to calculate and impose the fee was constitutional. However, the court had concerns about some other aspects of the program, such as the amount of funding the district planned to share with local communities. The district revised its program to address the concerns, and the court issued its final approval in June 2012.

In early 2013, NEORSD began collecting fees and initiating work projects to correct a large backlog of stormwater problems. But eleven suburbs and a group of commercial property owners appealed the local court ruling in the Ohio Court of Appeals.

On September 26, Appeals Court judges overturned the local court, ruling that NEORSD does not have the authority to enact a stormwater program or fee. The 2-1 decision turned on a ridiculous interpretation of Ohio Revised Code Chapter 6119, which permits the formation of regional water and sewer districts, and a complete misreading of the NEORSD Charter, which establishes the sewer district’s mission and authority.

The absurdity of the ruling was clearly explained by the dissenting opinion of Judge Larry A. Jones. For instance, he pointed out that the NEORSD Charter clearly calls for the development of a stormwater program. It says:

"[t]he District shall develop a detailed integrated capital improvement plan for regional management of wastewater collection and storm drainage designed to identify a capital improvement program for the solution of all intercommunity drainage problems (both storm and sanitary) in the District."

You can read the full ruling here. The dissent starts at paragraph 87.

How you can help

In response to the latest court ruling, NEORSD halted the stormwater program and placed all fees collected in escrow. Many projects are on hold—maintenance and construction projects that communities throughout the district were counting on.

The next legal move will be an effort by NEORSD to get the Ohio Supreme Court to review the case. NEORSD officials believe they have a strong argument, but there’s no guarantee the high court will accept the case. There’s a danger that an important regional program for clean water will be thwarted because of a bad court decision and the obstinacy of a few community leaders and the greed of a few commercial property owners who do not want to be part of a regional solution.

You can help in the following ways:

If you live in one of the suburbs that is suing to stop the stormwater program (Beachwood, Bedford Heights, Brecksville, Cleveland Heights, Glenwillow, Independence, Lyndhurst, North Royalton, Oakwood Village, Olmsted Falls, and Strongsville), tell your public officials to stop wasting taxpayers’ money on stupid lawsuits and start supporting a sensible approach to managing stormwater.

If you live in other communities in the NEORSD service area, ask your public officials to join in friend of the court briefs to support the sewer district’s case.

It’s important to end this costly legal wrangling. Stormwater programs are common across the country. It’s embarrassing for Ohio and bad for our water quality to have this one tied up in court.

Update 2/19/14 The Ohio Supreme Court has agreed to hear the Northeast Ohio Regional Sewer District’s appeal concerning the Regional Stormwater Management Program. Oral arguments are expected to occur this summer.

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David Beach
3 years ago

If all the runoff is contained on the property by the pond (that is, there's no overflow drain), then it would seem that your friend should be eligible for a stormwater credit on his bill.

Mike Meyer
3 years ago

Nice policy - just try to get it. Real life experience was friend with 5 acres with pond. All roof runoff went to pond. No credit unless roof runoff went to useless "rain water gardens."
"The Sewer District's Stormwater Fee is based on the amount of impervious or hard surface on a property because that is generally agreed to be the best indicator of the amount of stormwater runoff. The Sewer District takes into account the amount of pervious surface that may be on a property through the Stormwater Fee Credit Policy. Under this Policy, for example, residential property owners with disconnected downspouts that run over their yards can receive a 25% reduction in their Stormwater Fee. In addition, before the Sewer District's program was enjoined on September 26, 2013, the District had proposed an additional Stormwater Fee Credit of 25% for agricultural properties that followed certain agricultural best management practices. Overall, property owners that can show they control stormwater runoff through the largest storm events can receive up to a 100% credit. So, in summary, the Sewer District does take into account the amount of permeable ground surface that may receive drainage from the impervious surface on a particular property, and they do that through the Stormwater Fee Credit Policy"

David Beach
3 years ago

Regarding the public outreach, the Sewer District did extensive public outreach while developing its stormwater program and prior to rolling it out. Its staff met with officials of the affected communities and conducted many public meetings throughout the area. It also worked with local media to communicate the issues related to stormwater. However, such outreach only reaches a minority of people. So a lot more education needs to be done about the benefits of addressing our stormwater problems. That's one reason why the District is supporting the Metroparks new West Creek Watershed Stewardship Center -- so there can be ongoing education.

Yumiko
3 years ago

This was a great article. I am a resident of Cleveland Heights and am quite embarrassed my community is against the storm water fee program. It's also upsetting that too often do we take certain services for granted without thinking about the costs to maintain these facilities (which are far surpassed by the benefits they offer to both us and the environment). What's also surprising to me is that it is the more "privileged" members of the communities who have the strongest opposition. That being said, I was not around during the initial implementation of the fee and I am curious as to the extent of public outreach that was involved in educating the public regarding the benefits of the program. This is of course, no easy task I'm sure given the number of people NEORSD services, but I do believe a lot of misconceptions do stem from the lack of information provided in the first place.
...it also doesn't help that the court officials seem to lack substantially in their reading comprehension skills.

David Beach
4 years ago

Here is how folks at the Northeast Ohio Regional Sewer District respond to the issue raised in the previous comment:

The Sewer District's Stormwater Fee is based on the amount of impervious or hard surface on a property because that is generally agreed to be the best indicator of the amount of stormwater runoff. The Sewer District takes into account the amount of pervious surface that may be on a property through the Stormwater Fee Credit Policy. Under this Policy, for example, residential property owners with disconnected downspouts that run over their yards can receive a 25% reduction in their Stormwater Fee. In addition, before the Sewer District's program was enjoined on September 26, 2013, the District had proposed an additional Stormwater Fee Credit of 25% for agricultural properties that followed certain agricultural best management practices. Overall, property owners that can show they control stormwater runoff through the largest storm events can receive up to a 100% credit. So, in summary, the Sewer District does take into account the amount of permeable ground surface that may receive drainage from the impervious surface on a particular property, and they do that through the Stormwater Fee Credit Policy.

correction
4 years ago

The fee that is charged is only based on impervious surface. They do not take into consideration how much permeable ground surrounds that impervious surface which is unfair when they move into farm/country areas.

David Beach
4 years ago

The NEORSD stormwater program has three levels of fees for residential customers -- small, medium and large -- based on lot size and amount of impervious surface. So you pay less for a smaller lot.

Lakewood, however, is not in the NEORSD service area, so its residents aren't affected by the stormwater program.

Concerned Taxpayer
4 years ago

So, if I live in a bungalow on a small lot in Lakewood, I pay fees that are just as much if not more than the homeowner living in an expansive ranch house on a supersized lot in sprawville? How is that fair? Am I not the more responsible individual? Were my actions the ones that contributed to this problem?

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