WATER MANAGEMENT OPTIONS
Option 1 – Surface Water Management District – proposed by Summit County Engineer’s Office The Summit County Engineer recently presented a plan to address storm water related issues. Under the Surface Water Management District proposal, townships, villages and cities within Summit County would be eligible to participate on a voluntary basis. This program would assess businesses and residents a monthly utility fee. Funds collected would be used to remediate storm water issues within that community. The fee would be based on impervious surface area on real property. Residential property owners would pay a flat utility fee of $4 per month to fund improvements for the benefit of the participating community. For commercial properties, a utility fee of $4 per 3000 square feet of impervious surface would be assessed. Commercial property owners would be eligible to receive credits against the monthly fee, based on property improvements made to minimize the impact of storm water. This could include storm water retention/detention areas or other environmentally responsible modifications that help to reduce the impact of storm water. However, no commercial property owner would pay less than 1 ERU (equivalent residential unit) per month, or $4 per month. Residential customers would all be assessed at the $4 per month level. The Surface Water Management District the county engineer has proposed would apply all funds collected within a community to storm water projects that benefit that community. The county engineer would defer to local government officials on those projects that have the highest priority for remediation. In some instances, that could mean that funds collected in Bath could be used in another community, provided the improvement would benefit storm water issues in Bath. Additionally, the district would fall under the direct authority of three separate local elected governmental entities, and not under the exclusive control of a board appointed by a conservancy judge. The county engineer’s office views the district proposal as a cost effective option for storm water management. There would be low administrative costs because existing county staff would be used to review and design storm water projects. Equally important is that the district would be accountable through elected officials in the Summit County Engineer’s Office, Summit County Council, and the Summit County Executive’s Office. For those communities that elect voluntary inclusion in the Surface Water Management District, fees collected would be used on storm water projects benefiting that particular community. Local government representatives would also have input on determining which projects have the highest priority.
Summit County Surface Water Management District FAQ 3/20/17 Q: What are the problem areas the program would address first? A: We envision the participating communities being a strong partner and decision maker on what projects would be addressed in this program. The communities know best which areas they receive the most complaints about and while a larger project may be needed, if the community desires to tackle the smaller drainage issues first, it will then be our role to develop plans and an estimate of what is needed to solve those problems. It will be up to the opt-in community to recommend what issues they would like to address first. The District will provide advice and guidance and then implementation of the decision. Q: How would neighboring communities fund their share of the project if a drainage issue crosses political boundaries? A: There are a couple ways we can coordinate with communities that are not part of the County program. With a revenue source to fund the opt-in community’s share, we will have the ability to partner with political subdivisions on projects. Where those problems extend into neighboring communities we would look to those public officials to assist us in negotiating with the neighboring community. Neighboring communities may obviously have different priorities so timing of improvements may need adjustment accordingly. Joint applications for funding can be more successful than an individual application. A funding grant can become a strong incentive for moving a project forward. Where funds are unavailable we could offer a community the opportunity to join our program, utilize the county's ditch petition assessment process, or perhaps offer that community a loan. Q: Will the District be able to work on private land? A: The Ohio Revised Code provides a process by which the District can acquire easements across private property. The establishment of the District will definitely make it easier to work on private land. The District can develop rules and regulations which require private property owners not interfere with drainage ways that touch their property. For example, we can require that no one dump leaves or debris in ditches. A person doing anything to impede the flow of water could be issued a citation and ordered to remove the blockage within a specified timeframe. If they fail to comply, county crews can remove the blockage and charge the cost to the property owner. In any situation, an appropriate process is required for the county to acquire property or easements, but the establishment of the District will provide a dedicated funding source for such acquisition. Q: Is the $4 per month fee set in stone? A: Nothing is set in stone. We are open to discussion about every part of the Ordinance. However we do caution that if the fee is too low, after billing and administrative costs, we may not be able to tackle any large projects or multiple projects. We also understand, depending on your priorities, this may be desirable. In addition the current Ordinance is written such that Council can change the fee at the request of the opt-in community should the community want more work completed. Q: Will money collected in a community really stay in that community? A: Yes. The Ordinance states it will be used “to benefit that community” because, for example, a flooding issue in Copley may only be solved if work is completed in Akron. But yes, all money will benefit the participating community. Current wording of the Ordinance is below. 942.08 DISPOSITION OF SERVICE CHARGES AND FEES. All money received from Surface Water Management Service Charges and other fees under the provisions of this Chapter shall be credited to the Surface Water Management Fund. All Surface Water Management Service Charges and other fees collected under this Chapter from Zoned Lots or Tracts within a municipality or township shall be used for: (i) administration of the District and (ii) County Ditches, Drainage Systems, Surface Water Management Facilities and/or Improvements and/or Surface Water Management Programs that benefit Developed Land or Undeveloped Land within that municipality or township. Q: How much money will it cost to administer? A: This depends on how many communities participate, so it’s hard to have an exact answer at this point. We have been reaching out to other county offices and companies that provide billing services to determine the costs. Obviously the more communities in the program, the cheaper it will be per mailing. Unfortunately, since this is a utility, we are unable to “piggyback” on another county agency’s existing mail program (and we definitely asked them first). We see this being the biggest expense of administering the utility. Developing the rules and regulations and implementing the program would all be performed by county staff. Management of the program will also be performed by county staff, so the District would only have to cover their time spent on District programs. We envision that design services and construction would all be contracted out. We hope this all keeps the administrative costs very low. Q: How much money will it generate? A: We have a very general estimate that if all 9 townships participated, it would generate $4 to $5 million per year. We have asked our GIS technician to see if he can find Fiscal Office records that would enable him to make a fairly easy calculation per township regarding revenue. Funds raised depends on the count of residential parcels and commercial parcels and the actual calculation of ERUS each commercial property would owe.
Option 2 – Yellow Creek Watershed Conservancy District – proposed by Yellow Creek Foundation “Conservancy districts are political subdivisions of the State of Ohio, provided for in the Ohio Revised Code under Chapter 6101,” Vito Sinopoli, Bath Township Administrator said. “They are formed at the initiative of local landowners or political subdivisions to solve water management problems, most often flooding.” The Yellow Creek Foundation, a nonprofit 501(c) entity, formed last year with the purpose of establishing a watershed conservancy district. A conservancy district is a statutorily created legal entity designed to address a variety of storm water issues. These include preventing floods, widening or deepening stream channels, regulating the flow of streams or diverting watercourses, etc. The Yellow Creek Foundation, based on information listed on its website, contends that a conservancy district would be able to address storm water problems resulting from increased development, new highways and an increased number of people moving into the Yellow Creek Watershed. The group also cites that storm water runoff has increased serious flooding, road washouts and erosion of stream banks and stream beds, which has caused water pollution. If created, a conservancy district would have the ability to immediately assess, for a period not to exceed two years, a .3-mill levy on properties within the watershed to cover expenses related to organization of the district, surveys and plans, appraisals, estimates of cost, land options and other incidental expenses. A petition signed by only 500 residents living in the watershed is needed preliminarily before the district proposal can be submitted to a conservancy judge for review and approval. Following a public hearing on the conservancy district issue, an assigned judge would determine whether the district meets the requirements necessary to justify formation. After a plan is developed, a conservancy district can assess additional fees to property owners in the watershed to implement the plan and make storm water improvements. “A conservancy district has the right of eminent domain and may charge user fees, levy special assessments and issue bonds,” according to Vito Sinopoli, Bath Township Administrator. Because a conservancy district, when created, essentially becomes an independent political subdivision, it operates without oversight from any local government within the watershed’s borders. Rather, a district is primarily subject to the regulatory authority of the court that approved its creation. According to a map of the proposed Yellow Creek Watershed Conservancy District, it would include portions of Bath Township, Copley Township, The City of Cuyahoga Falls, The City of Fairlawn, Richfield Township, Richfield Village, The City of Akron, Granger Township and Sharon Township.
SCE – LEGISLATION FOR PROPOSED SURFACE WATER MANAGEMENT DISTRICT

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SUMMIT CITY SWMD ORDINANCE – CHAPTER 942 – REB 5-16-17

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Summit City Legal Summary of WSMD Ordinance

Legal Summary

Questions re: Chapter 942

Exemptions: Marvin Evans found that the National Park would be required to pay the utility, as would any federal, state, or locally owned property. Such entities, including nonprofits, churches, and schools are still required to pay assessments and other utility bills such as water and sewer. As a matter equal application and to avoid an immense administrative project, we recommend not expanding exemptions other than ones required by state code.

Immunity: As with any other utility, there will be limited liability. The District would not be held liable for decisions to do or not do a project; however if a project is done negligently, the District can be held liable. Township governments will not have any liability under this proposal.

Imminent Domain: Yes, the District would have the same imminent domain powers as the Department of Sanitary Sewer Services, unless a project is done under the ditch petition process, where easements would be granted and the District would only pay damages.

Opting Out:  Since the settlement with the Northeast Ohio Regional Sewer District is strictly worded, we were advised to not include an opt-out clause. The settlement agreement also says that the new program must have a steady and reliable source of funding, so putting in a fee reduction is also not advised. However; the Prosecutor’s office and Executive’s Law Department state that since County Council has the authority to alter the District (see Marvin’s code citation below), townships can petition Council to leave the District at any point.

 

Authority: From Marvin Evans:

R.C. 6117.01(B)(1) provides that the establishment of a storm water district or districts is a discretionary power of County Council.  It is proposed for SCCO Chapter 942 that any township, village, or city that wishes to have a storm water district established within its geographical territory provide County Council with a resolution supporting such action by the county.  Chapter 6117 makes no specific provision for townships to approve, disapprove or request the formation of districts.  This is in contrast to R.C. 6117.03, which allows the county to include part or all of a municipality only with the municipality’s agreement pursuant to an ordinance or resolution enacted by the municipality.

Pursuant to R.C. 302.13(M), County Council may “By ordinance or resolution make any rule, or act in any matter not specifically prohibited by general law; provided that, in the case of conflict between the exercise of powers pursuant to this division and the exercise of powers by a municipality or township, the exercise of power by the municipality or township shall prevail, and further provided that the board may levy only taxes authorized by general law.”  With respect to townships and the establishment of storm water districts, there are two questions: 1) can the county impose by rule a condition that a township provide a resolution of support or make an application relative to the creation of a storm water district, and 2) do the township trustees have authority to make such a resolution or application?

 

 

Pursuant to R.C. 302.13(M), it appears clear that the county can make a rule that conditions the creation of a storm water district within a particular political subdivision on the support or application of the legislative authority of that subdivision.  By enacting such a rule, it is not contemplated that the township would control the actions of County Council, rather Council would make the final decision as to whether the district was created under R.C. 6117.01.  There is no provision of law that prohibits such a rule.  There is no inherent conflict with the exercise of any powers of the townships since Council has the absolute right under R.C. 6117.01 to create districts in the unincorporated areas of the county.

 

It is a longstanding rule in Ohio that township trustees are a creature of statute and therefore possess only those powers expressly conferred by statute or necessarily inferred therefrom. See Ohio Atty. Gen. Op. No. 2015-006, citing In re Petition for Incorp. of the Vill. of Holiday City, 70 Ohio St. 3d 365, 370, 639 N.E.2d 42 (1994) (recognizing that “absent a specific directive from the General Assembly, township trustees are powerless to” act); Trs. of New London Twp. v. Miner, 26 Ohio St. 452, 456 (1875) (“[township] trustees can exercise only those powers conferred by statute, or such others as are necessarily to be implied from those granted”); 1982 Op. Att'y Gen. No. 82-012, at 2-42 (“[s]ince townships are creatures of statute, township trustees may exercise only those powers conferred by statute or such others as are necessarily to be implied from those granted, in order to enable them to perform their duties”).  R.C. 505.705 allows township trustees to commit township general revenue funds through grants or loans for the construction and administration of storm water drainage projects in conjunction with any other political subdivision with authority to perform such projects.  The township may make such commitment of funds upon terms that the trustees deem appropriate.  It appears consistent with this authority to address drainage issues that a township has discretion to ask the county to exercise its authority under R.C. 6117.01 to administer drainage projects within the township.  Inherent in the authority to commit funds is an authority to agree that projects will be undertaken by the other political subdivision, or to request of the other political subdivision that it exercise its authority to undertake projects.  In this circumstance, discretion to establish the district and undertake projects remains with the county.  Chapter 942 would just set out a process by which the county authorizes the townships can make the request to the county to perform a needed function that the township is not authorized to perform.

 

With respect to Sagamore Hills Twp, and the other four municipalities that are NEORSD members, in order to address the restrictions placed on them by the

NEORSD settlement agreement related to an opt-out provision in a county program, the county may need to prohibit opting out of districts by the relevant political subdivision.  Chapter 6117 does not address this issue in terms of political subdivisions opting out.  Rather, R.C. 6117.01(B)(1) allows County Council to modify districts and their boundaries at Council’s discretion.  Appropriate language may need to be included in the legislation as to those five communities, or generally.  This is an issue that may need to be negotiated with NEORSD in order to avoid litigation.  Whether or not this is an issue will depend on whether those five communities all agree to be a part of the county program.  This should not change the initial district creation process.

Ballot issues: On a closely related matter that was questioned, Chapter 6117 makes no provision for putting the creation of a district to the voters.  Furthermore, we can find no provision in the Revised Code that authorizes a township to place such an issue on the ballot.  In this respect the axiom that townships are creatures of statute applied.  In effect, such a vote would be advisory in nature and could not be binding upon County Council.  R.C. 505.705 places any decisions about intergovernmental cooperation on storm water issues within the authority of the trustees.  Direct voter approval is not contemplated.  As such, townships are without authority to place the question of district creation on the ballot.

For your reference, here is R.C. 505.705.

 

A board of township trustees may agree to appropriate township general revenue fund moneys to, and may agree to grant or lend moneys from the township general revenue fund to, any political subdivision with authority to provide water, sanitary sewerage, or storm water drainage within the township, for the purpose of providing moneys to the political subdivision to pay for the planning of or actual costs, fees, debt retirement, or any other expense, including, but not limited to, administrative and professional fees, incurred in supplying one or more of these purposes within the township, or the planning of or actual construction, maintenance, repair, or operation of water, sanitary sewerage, or storm water drainage within the township. A board of township trustees that grants or lends moneys to a political subdivision for this purpose shall expressly state the terms of the grant or loan agreement in a written memorandum.

 

Option 3 – Northeast Ohio Regional Sewer District (NEORSD)

The Northeast Ohio Regional Sewer District is another option for storm water management which would involve community participation in a regional sewer district. NEORSD, based in Cuyahoga County maintains authority into portions of Summit County and is looking to expand its coverage area.

 

If a community consents to participation, residents and commercial property owners within the NEORSD area would be assessed a monthly fee, based on impervious surface area, ranging from $3-$9/ month for residential properties. Twenty five percent of the fees collected would be returned to the community for use on storm water improvements.

Their approach however is to address storm water projects on a regional basis, and not necessarily in a localized area.

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