BREAKING: Regional #StormwaterProgram headed to Ohio Supreme Court

Today, the Ohio Supreme Court agreed to hear the Northeast Ohio Regional Sewer District’s appeal concerning the Regional Stormwater Management Program. The Supreme Court has accepted two Propositions of Law presented by the Sewer District.

• 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.”

“We are pleased the Ohio Supreme Court agreed to hear this case which is of great public interest, not just to our region, but to all Ohioans,” said Marlene Sundheimer, Director of Law. “We anticipate appearing before the Supreme Court for oral arguments this summer.”

The Regional Stormwater Management Program was designed to address flooding, streambank erosion and water quality issues throughout much of Northeast Ohio. In late September, the Ohio Eighth District Court of Appeals reversed a trial court’s ruling in favor of the Sewer District’s program, holding that, among other things, the Sewer District did not have the authority under Ohio Revised Code Chapter 6119 or its Charter to enact and implement the Regional Stormwater Management Program under Title V, or to collect its stormwater fee.

As a result of the appeals court ruling, the Sewer District suspended Regional Stormwater Management Program activities and the collection of stormwater fees for the program while the District pursued the appeal to the Supreme Court.

Stormwater Management Program in the courts: A timeline

January 7, 2010: The Sewer District filed the initial complaint for declaratory judgment, the same day the Sewer District’s Board of Trustees unanimously voted to adopt Title V, the section of the Sewer District’s Code of Regulations that details the Regional Stormwater Management Program. This court action asked the court to confirm the Sewer District’s authority to establish a stormwater utility.

April 21, 2011: Cuyahoga County Court of Common Pleas Judge Thomas J. Pokorny issued his first opinion in the case of Northeast Ohio Regional Sewer District vs. Bath Township, Ohio, et al. (CV-10-714945). In this decision, Judge Pokorny ruled that Chapter 6119 of the Ohio Revised Code gave the Sewer District the authority to implement most of the Regional Stormwater Management Program. He also ruled that consent of member communities to participate in the program is not required.

February 15, 2012: After a lengthy trial, Judge Pokorny issued his second opinion in the case. In this ruling, he ruled that the Sewer District’s Stormwater Management Program fee is authorized under Chapter 6119 of the Ohio Revised Code; the charges proposed are ruled a fee, and not a tax as the Defendants argued.

June 28, 2012: Judge Pokorny issued his third and final opinion in the case. This final ruling acknowledged several recommended program changes the Sewer District made – most notably an increase to the Community Cost-Share Program to benefit member communities – by recommendation of the Judge.

September 26, 2013: The Court of Appeals reversed Judge Pokorny’s decisions, finding that the agency does not have the authority under Ohio Revised Code Chapter 6119 – or its charter – to implement the Regional Stormwater Management Program under Title V or collect the associated stormwater fee.

November 12, 2013: The Sewer District asked the Supreme Court to hear the case. The Court of Appeals’ prior ruling jeopardizes stormwater programs throughout the State of Ohio.

Customers with questions about their accounts can contact the Sewer District’s Customer Service Department at  (216) 881-8247 or email Sewer District representatives at askus@neorsd.org. We also have a list of 21 common questions and answers that were common following last September’s ruling.

About the program

The Sewer District’s Regional Stormwater Management Program will address flooding, erosion and water quality problems throughout its defined service area. In addition, the Sewer District will assume responsibility for millions of dollars of necessary maintenance along streams across the region.

The average homeowner within the Sewer District’s Stormwater Service Area was charged $5.05 per month, or $60.60 per year, to pay for stormwater-related construction projects and maintenance. The Sewer District identified more than $220 million of needed construction projects, and detailed planning on some projects has already begun. These stormwater-related projects will provide relief to multiple communities within each watershed. Several emergency projects were completed in 2013 and others were actively under construction. Projects with alternative funding sources are continuing until funds are exhausted, whereas other much-needed projects were immediately suspended.