Ohio Supreme Court rules in favor of Northeast Ohio stormwater program

Cleveland — The Ohio Supreme Court ruled in favor of the Northeast Ohio Regional Sewer District’s appeal concerning the Regional Stormwater Management Program. The Sewer District, under Ohio Revised Code Chapter 6119 and founding charter, is not only authorized to manage stormwater, but impose a fee for that purpose.

The Regional Stormwater Management Program is designed to address flooding, streambank erosion and water quality issues throughout much of Northeast Ohio.

“This is a great victory for the region,” said Darnell Brown, Northeast Ohio Regional Sewer District Board of Trustees President. “Stormwater is causing damage and inter-community flooding problems, and we can now tackle this growing problem with a regional solution.”

The Supreme Court was asked to hear two Propositions of Law:

Proposition of Law No. 1: “A district formed pursuant to [Ohio Revised Code] Chapter 6119 is authorized to manage stormwater which is not combined with sewage, and to impose a charge for that purpose. Such a charge is one ‘for the use or service of a water resource project or any benefit conferred thereby.’”

Proposition of Law No. 2: “When a Petition and Plan of Operations grant a [Ohio Revised Code] Chapter 6119 district the authority to operate storm water handling facilities, that District is authorized to create and implement a regional stormwater management program, including imposing appropriate charges to operate that program.”

Ruling in favor of the Sewer District were Justices Paul E. Pfeiffer, Judith Ann Lanzinger, William M. O’Neill and Chief Justice Maureen O’Connor. Justices Sharon L. Kennedy and Terrence O’Donnell dissented. Justice Judith L. French concurred in part and dissented in part.

“There are many sound policy reasons to support or oppose the creation of the Sewer District’s regional stormwater-management program and its attendant fee structure,” writes Justice Pfeiffer in the ruling. “In our view, the statute plainly indicates that ‘waste water’ comes in two forms. One is ‘any storm water.’ The other is ‘any water containing sewage or industrial waste or other pollutants or contaminants derived from the prior use of the water.’ There is no other plausible reading of the definition.”

“We are pleased with the Ohio Supreme Court’s decision and the statewide impact it has for other similarly-governed agencies across the state,” said Marlene Sundheimer, Chief Legal Officer. “The Ohio Eighth District Court of Appeals’ prior ruling jeopardized stormwater programs throughout Ohio and now, without a doubt, we can continue to address large-scale stormwater problems on a regional basis.”

The prior court’s ruling suspended the Sewer District’s program, effectively terminating construction projects and maintenance work. All billing was suspended and collected funds were placed into escrow.

Although the Sewer District will re-start the Regional Stormwater Management Program, a specific date — either for re-mobilize construction projects or resuming billing — has not yet been established.

“There is a tremendous amount of work required to resurrect this vital program,” said Frank Greenland, Director of Watershed Programs. “$20 million in fees was collected before the program was suspended and we will work diligently to prioritize projects and resolve regional flooding and erosion problems.”

Download the court’s ruling at www.supremecourt.ohio.gov/rod/docs/pdf/0/2015/2015-Ohio-3705.pdf.

Source: NEORSD blog (https://neorsd.blogspot.com)