Governmental funding of stormwater management programs through fees continues to generate litigation regarding whether the authority to do so is available.
The Ohio Supreme Court in a September 9th decision addressed two issues related to the Northeast Ohio Regional Sewer District’s (“District”) implementation of a stormwater management program:
- Is the District’s regional stormwater management program authorized by Ohio statute and by its charter?
- Is the fee structure authorized by Ohio statute and the charter?
See Northeast Ohio Regional Sewer District v. Bath Township, et al, 2013 – Ohio – 40186.
The Ohio Supreme Court reversed the Ohio Court of Appeals and answered both questions in the affirmative.
The District is described as including member communities from all or parts of over 60 Ohio cities in and around Cuyahoga County. It had adopted a plan in 2010 to establish a regional stormwater-management program and a structure for fees to be charged to landowners within the District whose properties contain impervious surfaces.
For the District to have the statutory authority (R.C. Chapter 6119) to create a regional stormwater-management program, it must be for one of two purposes. The statute requires that either the District “supply water.” It does not.
In the alternative, the District must “provide for the collection, treatment and disposal of waste water.” Therefore, a key issue was whether the term waste water includes stormwater.
The Ohio statute defines waste water as:
… any storm water in any water containing sewage or industrial waste or other pollutants or contaminants derived from the prior use of the water.
The court held that the statute identifies two types of “waste water” one of which is “any stormwater.” As a result, the court concluded that the regional stormwater management program falls within the statutory authority of the District.
The court then considered whether the District had the authority to charge fees to pay for the program. R.C. 6119.01 provides that:
… “[a] regional and sewer district may charge, alter, and collect rentals or other charges *** for the use or services of any water resource project for any benefit confirmed thereby.”
“A water resource project” defined as:
… any wastewater facility or water management facility acquired, constructed, or operated by or leased to a regional water and sewer district or could be acquired, constructed, or operated by or leased to a regional water and sewer district under this chapter ***.
The court concluded that what it characterized as broad language in the relevant statutory provisions encompassed the assessing of fees to pay for a stormwater-management system and that the fees are therefore authorized by the charter.
Click here to download a copy of the opinion.
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