Why does the Northeast Ohio region’s new stormwater management program have a dozen suburbs fit to be tied? Twelve of the 61 communities served by the Northeast Ohio Regional Sewer District are suing the District, charging that it doesn’t have the authority to collect money for managing runoff from rain storms. And, while they support using a small portion—$240,000 this year—of their sanitary fees for grants to improve streams and river corridors, the 12 also are fighting on grounds that it’s a tax.

District Manager of Watershed Programs, Kyle Dreyfuss-Wells, counters they are collecting a fee for services – estimated at $40 million a year from businesses and homeowners. The fee is based on how much area a property's owners' pavement and rooftops cover, and could run a big box or large institution from tens to hundreds of thousands of dollars.

The new pot of funds will be used across the region to shore up large-scale watershed issues. For example, when a big stretch of the hillside of Doan Brook on South Park Boulevard in Shaker Heights recently collapsed, the District would have paid to restore it instead of the city. Or when an innovative idea like the daylighting and restoration of Walworth Run—a historic tributary of the Cuyahoga River scarred by defunct industry—is proposed, Cleveland could turn to the District.

“I have letters of support from the Mayor of (City of) Independence asking me to fund the West Creek Preservation Committee,” Dreyfuss-Wells explains by way of example. “Where does he think the two hundred and forty thousand dollars a year comes from? Out of your wastewater rate and in future it will be funded from the stormwater fee.”

Granted, going from $240,000 to $40 million is a significant upgrade. Put aside the millions cities pour into fixing problems on their own, and there, as they say, is the rub. Commercial developers complain, it’s a lousy time to ask businesses to pay, even while cities are talking a big game about greening their community.

Independence isn’t alone in both suing the District and supporting big watershed restoration or generic “green” projects. The city of Cleveland Heights opposes the fee and at the same time has hired a consultant to “green” its zoning code. Its mayor was quoted in the Sun Press recently encouraging residents to make projects “more ecological,” with “less pavement and more landscaping.”

Sewer District Director Julius Ciaccia promises that Cleveland Heights would see $2 million for the rehabilitation of Horseshoe Lake Dam “a significant amenity for Cleveland Heights residents” and support from the stormwater program for “other green projects and maintenance opportunities.” Many properties and parks in Cleveland Heights are built right next to and benefit from green corridors of the west and east branches of Dugway Brook.

The “Gang of 12”, as Dreyfus-Wells calls them, have been emboldened by a similar case in St. Louis, Missouri. When the metro's sewer department introduced a fee for its stormwater program, they lost in the courts. Dreyfuss-Wells dismisses any connection to Cleveland.

“In St. Louis, it was the peculiarity of their laws. We looked at other systems and to Bolt v. Lansing, a case where the judge knocked down Lansing’s program and set up specific tests. You have to have a capital plan; the fee has to go into a separate fund, and you need a credit program (all of which NEORSD has).”

The case has been delayed, possibly until spring, from going before the judge because of a massive request from the plaintiffs for discovery. Meanwhile, the District is moving ahead with setting up the program. It has another arrow in its quiver: It’s exploring the feasibility of green infrastructure (wetlands, bioswales, rain gardens, etc.) as a strategy to reduce the truck-sized pipes in its Combined Sewer Overflow replacement work.

“We’re aggressively looking for where we can minimize the use of grey with green infrastructure,” Dreyfuss-Wells says. “We’re paving a trail here. Green infrastructure is one of those ideas that sounds so good; you can’t deny how good it sounds. But when you figure out how to do it, they’re all complicated. USEPA has focused their control with grey; they’re comfortable and safe with grey. Generally within the agency this is a shift.”

The feasibility study, for which the District hired URS Corp, is looking to answer, can large scale green infrastructure “right-size the grey” to solve the region’s CSO problem?

“We hope to find out, volumetrically, can you replace a pump station with a stormwater wetland? Right now we’re focused on Train Avenue and Walworth Run. And Doan Brook. That would be next (CSO tunnel scheduled for 2014), so green infrastructure will have to be figured out. We’re also looking at Kingsbury Run and the huge vacancy there.”

Dreyfuss-Wells envisions the District designing, owning and operating a large scale wetland like Saylor Grove in Philly—a one-acre wetland constructed in a city park that, according to the city, is “designed to treat a portion of the 70 million gallons of urban stormwater generated in the storm sewershed per year before it is discharged into the Monoshone Creek”—to reduce the flooding issues in Doan Brook. But the trick is to figure out can it reduce the size of an underground pipe? “Because once you build it, you can’t bump those puppies out.”