IN THE SUPREME COURT OF 01110

NORTHEAST Ol-llO REGIONAL SEWERDISTRICT,

Petitioner,

vs.

BATH 1 OV^ N SHIP, OH14, et al. -

Respondent.

'....... ^ s„

CASF NO. ----------- .,:^x :.,,

Appeal from Court of Appeals for theEighth Appellate DistrictCASE NO. CA-12-098728(Consolidated with Case Nos.CA-12-098729 & CA-12-098739)

Cuyahoga County Court ofCommon Pleas,CASE NO. CV-10-714945

BRIEF OF AMICI CURIAE BROOKLYN, BROOKLYN HEIGH'TS, CUYAHOGAHEIGHTS, HIGHLAND HILLS, MAYFIELD VILLAGE, MIDDLEBURG HEIGHTS,MORELAND HILLS, NEWBURGH HEIGHTS, OLMSTED TOWNSHIP, ORANGE,

PARMA, PARMA HEIGHTS, SHAKER I-IEI(gHTS, SOU'TH EUCLID, VALLEY VIEWAND WARRENSVILLE HEIGHTS IN SUPPORT OF JURISDICTION

Yvette McGee Brown (0030642)Chad Readler (0068394)JONES DAY325 John H. McConnell Boulevard, Suite 600PO Box 165017Columbus, Ohio 43216-5017Tel: (614) 469-3919Fax: (614) 461-4198Email: rnc >br•_owiiit;'ci 1neSda .cotn

Scott Ciaussen (0074465)CITY OF BROOKLYN7619 Memphis AvenueBrooklyn, Ohio 44144Tel: (216) 635-42I6Fax: (216) 351-2133Email: Sciaussenrcr;^brooklvnohi.o^ov

Attorney for City of Brooklyn

Attorney for Village of Cuyahoga Heights,Village of Moreland I-Iills; and Orange Village

Jerome Dowling (002603 5)VILLAGE OF BROOKLYN HEIGHTS20800 Center Ridge Road, Suite 222Rocky River, Ohio 44116Tel: (440) 331-1010Fax: (440) 331-8812Email: Jdow1inO ci>cox.net

Thomas P. O'Donnell(0002462)VILLAG>H. OF IHGHLAND IIILLS3700 Northfield Road, Suite 11I-lighlandHills, Ohio 44122Tel: (216) 283-3000Fax: (216) 283-2516Email: todonnc,il%a todlaw.com

Attorney for Village of Brooklyn Heights Attorney forVillage of Highland Hills

Joseph W. Diemert, Jr. (0011573)J®SEPH DIEMERT AND ASSOCIATES1360 S.O.M. Center RoadCleveland, Ohio 44124Tel: (440) 442-6800Fax: (440) 442-0825Email: re ceationrst; t)dieznertlaw.eom

Attorney for Mayfield Village

Luke McConville (0067222)WALDHEGER COYNE CO., LPA1991 Crocker Road, Suite 550Westlake, Ohio 44145`T'el: (440) 835-0600Fax: (440) 835-1511Email: ltillce'i)healthlaw. com

Attorney for Village of Newburgh Heights

Timothy G. Dobeck (0034699)PARMA CITY HALL6611 Ridge RoadParma, Ohio 44129Tel: (440) 885-8008Fax: (440) 885-8172Email: lav,, r(i^ itY,off^oh. goy

Attorney for City of Parma

Wiliiani M. Ondrey Gruber (0005950)CITY OF SHAKER HEIGHTS3400 Lee RoadShaker Heights; Ohio 44120Tel: (21.6) 491-1445Fax: (216) 491-1447Email: yyil[iam.grubc,r(ra shakeron.liri e.coni

Peter H. I-1ul1(0003731)CITY OF MIDDLEBURG IIEIGHTS15700 Bagley RoadMiddleburg Heights; Ohio 44130Tel: (440) 234-8811Fax: (440) 234-8993Email: peteT°hull^zr% 7rnail_.com

Attorney for City of Middleburg Heights

Dale F. Pelsozy (0020653)CUYAHOCA COUNTYPROSECUTOR'S OFFICE1200Ontarlo Street, Justice Center 8"' Fl.Cleveland, Ohio 44113Tel: (216) 443-7757Fax: (216) 443-7601Email: Opelsol^^z^prosecutor.cuyaho racourtt y.t1s

Attorney for Olmsted Township

Michael Pokorny (0024792)CITY OF PARMA HEIGHTS6281 Pearl RoadParma Heights, Ohio 44130`fel: (440) 884-9600Fax: (440) 884-1802Email> Ia^vC^z)paimaheightsh.gov

Attorney for City of Parma Heights

Michael P. Lograsso (0058557)CITY OF SOUTH EUCLID1349 South Green RoadSouth Euclid, Ohio 44121Tel: (216) 381-0400Fax: (216) 381-0364Email: mlo fgrasso(&seuclid.com

Attorney for City of Shaker Heights Attorney for City of South Euclid

David Lambros, (0008654)VILLAGE OF VALLEY VIEWOne Berea Commons, Suite 216Berea, Ohio 44017Tel: (440) 816-1525Fax: (440) 816-0604Email: dalambros'a;vahoo.eoin

Attorney for Village of Valley View

Mark I. Wallach (0010949)THACKER MARTINSEK LPA2330 One Cleveland Center1375 E. 9"' StreetCleveland, Ohio 44114Tel: (216) 456-3848Fax: (216) 456-3850Email: rnwallachcu%trnl'laa,ctnn

James F. Lang (0059668)Matthevv J. Kucharson (0082388)Molly A. Drake (0083556)CALFEE, HALTER & GRISWOLD LLP1405 East Sixth StreetCleveland, Ohio 44114Tel: (216) 622-8200Fax: (216) 241-0816Email: jl.ane,@,calfee.coin

tnkucharson^u:cal fee. co n1mdrake!^4calfee.c.oln

Marlene Sundheimer (0007150)Director of LawNORTHEAST OHIO REGIONALSEWER DISTRICT3900 Euclid AvenueCleveland, Ohio 44115Tel: (216) 881-6600Fax: (216) 881-4407Email: sundheimerm;^^ ,̂:1eoiscl:gr J

Teresa Metcalf Beaslev (0061314)CALFEE, HALTER & GRISWOLD LLPThe Calfee Building1405 East Sixth StreetCleveland, Ohio 44128Tel: (216) 587-6500Fax: (216) 587-6594.Emiail: tznbeasley-c%calfee.coin

Attorney for City of Warrensville Heights

John H. Gibbon (0010986)I)irector of LawCITY OF CLEVELAND HEIGHTS40 Severance CircleCleveland Heights, Ohio 44118Tel: (216) 291-5775Fax: (216) 291-3731Email: i 7ibbc^n(^i-walterhaver.corn^----

Christopher L. Gibbon (0010983)Heather R. BaldwinVlasuk (0077459)WALTER & HAVERFIELD LLPThe Tower at Erieview1301 East Ninth Street. Suite 3500Cleveland, Ohio 44114-1821Tel: (216) 781-1212Fax: (216) 575-0911Email; cgibbonrir,walterhav.coni

hvlasuki ^L;walterlhav. com

Attorneys for City of Beachwood, City ofBedford :I-leights, City of Cleveland Heights,Village of Glenwillow, City of Independenee,City of Lyndhurst, Village of Oakwood, City ofOlmsted Falls, and City of Strongsville

Attorneys for NEORSD

Sheldon Berns (0000140)Benjamin J. Ockner (0034404)Jordan Berns (0047404)Gary F. Werner (0070591)Timothy J. Duff (0046764)BERNS, OCK.NER & GREENBERGER.,LLC3733 Park East Drive, Suite 200Boachwood, Ohio 44122Tel: (216) 831-8838Fax: (216) 464-4489Email: sberns^%;bernsockner.com

bockner(ci bet_nsockner.conljl^^rns cr'hcrnsoct.ner.comgwernerg-bernsocE<ner.corntduff^a%bernsockner. con1.__

David J. Matty (0012335)Shana A. Samson (0072871)Justin Whelann (0088085)RADEMAKER, MATTY, HENRIKSON &GREVE55 Public Square, Suite 1775Cleveland, Ohio 44113Tel: (216) 621-6570Fax: (216) 621-1127Email: dmattyi^i^̂ r.._nig1aw_.corn

ssarnson!iz^rm^law.conl------------ -^---- -----iwhel an,r(i).rmni law,corn

Attortleys for City of Brecksville

Attorneys for Noi-theast Ohio ApartmentAssociation, et al.

TASLE OF CONTENTS

Page

TI-IE EIGIII'H DISTRICT'S OPIIvT1ON THREATENS THE ABILI'IY OFNORTHEAST OHIO TO MANAGE STORiVIWATER.................................................... ...........1

IN'.CEREST OF AMICI CliRIAE ................................... .............................................................5

STATEMENT OF THE CASE AND FACTS ... ........ ..... ................... ..........................................9

ARG UIbILNT . . . . . .. . . .. . . . .... . . . . .. .. . . .. . .. .... .. ... .. .. .. . . . .. .. ... . . .. . .. .. .. .. . . . ... . .. . . . ... .... . . . .. .. .. . . . .. .. ... . . .. . .. 9

Proposition of Law: Chapter 6119 Provides the Northeast Ohio Regional SewerDistrict With Authority to 'VlanageStormwater in Member Communities .. .....................9

A. The Plain Language of Chapter 6119 Authorizes the District toManage Storrnwater...... ............................................................................ 10

B. The Statutozy Scheine Supports the District's Authority to ManageS torm water .. . . . . .. . . . .. . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. . . . . . . .. . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . ..12

C. The Legislative History of Chapter 6119 and Authorizing OrderSupports the District's Authority to Manage Stormwater .... ...................14

CONCLUSION ................... ........................................... ....................... . ......... .... . ..............16

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THE EIGIHTH DISTRICT'S OPINION THRF,ATENS THE ABILITYOF NORTHEAST OHIO TO MANAGE STORMVF'ATER

There has been a significant increase in stormwater-related problems in Northeast Ohio

over the past several decades. Yet the Eighth District's decision threatens the ability of

municipalities across Northeast Ohio to address theseintensifving problems on a regional basis.

It held that the Northeast Ohio Regional Sewer District (the "District") lacks authority with

respect to stormwater, and hence cannot implement its Regional Stormwater Management

Program (the "Program"). This decision hinders the ability of the District's fifty-six cities,

villages and townships (the "District's Member Communities" or "Member Communities"),

stretching across Cuyahoga, Summit, Lake, and Lorain counties; to manage the destruction

caused by stormwater that is too grave and too widespread to be addressed by inadequate

municipal budgets. That decision runs counter to the plain language and statutory scheme in

Chapter 6119, giving the District authority to manage "any storm water." R.C. 6119.01. By

depriving the District of such authority, the decision fundamentally changes the way in which the

State must address stormwater management, upending settled expectations of cities throughout

Northeast Ohio and providing a precedent that will harm Chapter 6119 districts throughout Ohio.

This Court's attention is thusneeded to address the scope of the District's authority with respect

to stormwater. This is a question of substantial public interest to communities and their citizens

across the State that are struggling to manage flooding of homes, erosion of streams, destruction

of private and public land and roads, and other costly harm to municipal infrastructure caused by

stormwater.

This case is of great public interest for four interrelated reasons:

F'zrst, the Eighth District's opinion eliminates the main tool of theconimunities of

Northeast Ohio to address major stormwater issues that affect more than one community.

Stormwater issues are most often regional issues, determined by the natural landscape and

ecosystem rather than government-drawn municipal borders. As a natural result of topography,

stormwater issues are often not conffned to a single municipality or township. Overflowing

lakes and strearns from one city cause flooding in another. A faulty dam or a lack of

containment at one part of a river impacts all communities downstream. Storrnwater overflow

from one city may cause problems, including erosion (and resulting structural damage), clogged

drainage systems, and polluted runoff, that are felt in a neighboring area. For instance, sediment

carried by runoff from various communities washes into sections of the Cuyahoga River, adding

to the cost of dredging required to keep the channel open for commercial shipping. Similarly,

excessive stormwater volumes flowing into the riparian corridors of the celebrated "Emerald

Necklace" results in floods, debris blockages, and costly maintenance and repairs in the

Cleveland Metroparks. Quite simply, stormwater from communities at higher elevations flows

downstream and impacts communities at lower elevations. Accordingly, neglect of stormwater

management in one higher-elevated city may result in destruction to bridges, roads, and other

essential infrastr-ucture in cities at lower elevations.

As the experts at trial demonstrated, because of topography and the lake and stream

systems throughout Northeast (?hio, the communities within the District are facing flooding,

erosion, sediment build-up, and other problems today. And the problems are only getting worse.

Increasingly intense storms dump deluges on rooftops and pavement, and because the area lacks

an efficient stormwater management system, rivers, creeks, streams, and ditches overflow and

flood nearby homes and cause property damage. The result is that stormwater infiltrates old

sanitary and combined sewers before backing up into residents' basements or overflowing to

area streams; debris and flooding blocks or undermines roads; natural ecosystems are destroyed;

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and commercial shipping is threatened. Commercial businesses and thousands of Ohio families

lose money and time dealing with these problems of increasing severity. I'hese are regional

problems that require regional approaches to resolve. Vt- ithout redress by this Court, the District

and all other Chapter 6119 regional sewer districts are deprived of all authority to provide

holistic, watershed-based solutions to Northeast Ohio's mounting stormwater problems.

S'econd, the District's Member Communities do not have independent authority to resolve

these interaommunity problems effectively. Without the Dist:rict having this authority, Member

Communities can only attempt to mitigate stormwater problems with repeated stop-gap fixes;

they cannot systematically address the originating sources of thoseproblenzs that lie in

municipalities be,yond their jurisdiction. As a matter of law, cities, villages and townships-

including ainici curiae here--do not have the authority to effectivehr resolve stormwater

problems in neighboring communities that are caused by development and other activities

outside of their municipal boundaries. Member communities may only act within the bounds of

their jurisdiction. For downstream communities, they cannot control the actions (or inaction) of

upstream municipalities that may have direct and devastating effects on their communities.

'The fifty-six Member Communities have not been able to effectively collaborate to

resolve these regional storm"rater problems through coordinated action in the absence of the

District's authority. Individual Member Communities are not equipped to implement thetype of

holistic solutions necessary to cost-effectively solve regional problems. Some municipalities, for

example the `"upstream" communities, have little incentive to address stormwater issues if the

effects are only felt beyond their own city lines. If the Eighth District's decision stands, Meinber.

Communities are left with the impossible task of mitigating stormwater problems that originate

in other cities or that are simply too big for any one community to handle on its own.

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I hircl, given the interconnectedness of stormwater issues between commzxnities

throughout northeast Ohio, it is difficult to apportion financial responsibility and it is unfair to

saddle certain eoznmunities with the full responsibility for addressing stormwater concerns. For

instance,even though a particular dam may lie within one municipality, the effects of its

disrepair may be felt by many other communities. `Ilhe finaiicial burden is logically and

equitably a shared responsibility, and orily through a regional approach may it be treated as such.

The Program requires significant costs that no city individually, or even a few combined, have

the resources to finance. Among others, it includes a $3.5 million dam rehabilitation at

Horseshoe Lake in the cities of Cleveland Heights and Shaker Heights, a$2.S million dam

rehabilitation at and dredging of Green Lake in the City of Shaker Ileights, and a$2.3 million

new retention basin along the Chevy Branch of Big Creek in the City of Parma. Such large costs

necessitate shared effort, and given the widespread impact of stormwater issues across the region,

an equitable distribution of costs is appropriate. Elimination of the District's authority to

implement the Program threatens this region-wide cost sharing.

Fozarth; this case merits the Court's jurisdiction because it has implications beyond the

District's Member Communities in Noz-theast Ohio. Through the precedent set by the Eighth

District, the stormwater districts in other areas of Ohio are threatened. Elsewhere in Ohio,

Courts of Common Pleas have considered stormwater districts within the authority granted in

Chapter 6119. For example, in 2003, the Warreii County Court of Common Pleas approved,

under Chapter 6119, the formation of the Deerfield District to address a variety of stormwater

issues, including failed stormwater conveyance systems which caused flooding, stream bed

erosion, and water pollution. ^See Ira re of Deerfield Regional Staa-n2 Water Dist., Warren C.P.

No. 03CV61392 ((9ct. 31, 2003). Similarly, the Mahoning County Court of Common Pleas

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approved the ABC District, which was established under Chapter 6119 to address stormwater

issues in the unincorporated territory of Austintown, Boardman, and Canfield Townships in

Mahoning County. See In re o,fthe ABC Water & Storm Water Dist., Mahoning C.P. No. 09-

CV-4002 (Nov. 30, 2009). The Eighth District's precedent makes any of these districts

susceptible to legal challenge. These districts, which have been managing stormwater

collaboratively under Chapter 6119, are therefore at risk and all their work in providing

systematic solutions to stormwater problems is placed in jeopardy. Accordingly, this case merits

this Court's review to protect the public's interest in stormwater management statewide.

INTEREST OF AMICI CURIAE

Amici Curiae are sixteen of the District's suburban Member Communities that currently

feel the devastating effcctsof regional stoi-inwater problems. Amici Cziriae, as individual cities,

villages, and townships, do not have the resources and capability to resolve all of these problems,

in part because of the great economic resources required, and in part because such problems are

often caused by development and other activities in neighboring comznunitiesthat extend beyond

their boundaries. Instead, these communities rely on the District, and particularly the Progranl,

to address regional stormwater problems. The District, in their view, is best able to manage

stormwater issues from a systematic, regional perspective, and in turn helps the communities

within the District share costs of regional problems.

The trial testimony of Shaker 1-leight's Mayor Earl Leiken exemplifies the problems

facing ainici curiae. Mayor Leiken began by explaining that Shaker Heights has "considerable"

problems caused by stormwater, including breaking culverts, erosion from strearns, and flooding

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of roads and individual residences. (Tr. 1 1211-12.) In particular, Mayor Leiken focused on the

lakes that fall partially within Shaker I-leights's purview, explaining that: "[Shaker Heights has]

lakes that actually act as retention basins, to sort of keep the water and store the water before it

goes farther downstream." (Tr, 1211.) However, given increasing stormwater problems, the

"lakes have been posing major problems" because "the lakes are ... filling in with silt, which

makes them shallower, so they [are] becom[ing] less effective in performing that role." (Tr.

1211-12.) Also the dams that support the lakes are in serious disrepair. (Tr. 1212.) I'roblems

with the Iakes lead to flooding, for example in University Circle. (Tr. 1216.)

These problems, explained Mayor Leiken, are regional problems. The lakes are

geographically shared between Shaker 1-Ieights and Cleveland Heights, and owned by the City of

Cleveland. (Tr. 1213.) And the major tributaries start in other communities, including Doan

Brook which starts in Beachwood, runs through Highland Hills, trails in Shaker Heights, and

then continues into other communities, (Tr. 1214.) I-1e explained: "['1"]he problems come from

carrying silt and other materials from wherever the brook starts. Certainly from parts of

Beachwood, on into the lakes. And then the water is carried down into other communities

beyond Shaker." (Tr. 1215). Indeed, the Mayor has, on a rainy day, actiially watched the

stormwater flowing down the streets from Beachwood into Shaker IIeights.

Importantly, Mayor Leiken explained that these problems "for one community are

overwhelming." (Tr. 1217). Solutions would cost "millions of dollars," and "as a practical

matter, it's really impossible for [Shaker Heights] to do it" given its financial eircumstances, (Tr.

1217-18.) Accordingly, Mayor Leiken recognized that the District's Program would be a

iTrariscript of testimony from Earl Leiken, Mayor of Shaker Heights, November 8, 2011 (Cuyahoga C.P.No. CV-] 0-714945).

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"tremendous benefit to .. . Shaker Heights, but also a great benefit to the other communities that

are impacted by the system" of lakes, rivers, and streams throughout Northeast Ohio. As Mayor

Leiken stated, he is not alone in seeing the serious need for the District's Program. (Tr. 1218-19.)

Arnici Curiae municipalities have regional stormwater problems that they are currently

having difficulty resolving on their own and that would be addressed by the District'sProgratn.

The following is just a sampling from four Member Con-ununities:

Brooklyn Heights. The Village of Brooklyn Heights contains 4.0 miles of regional

waterways that were to be inspected, maintained, and operated by the District within the

Cuyahoga River and West Creek watersheds. The Village has flooding, erosion, and water

quality problems within these streams that it will have difficulty addressing without the Program.

District projects planned to address these problems include:

^ West Creek Erosion along Resource Drive------Project to stabilize eroding streambankswithin a Village industrial park. Estimated Construction Cost =$2,U00,000.

• West Creek Concrete Streambank Stabilization-I'roject to stabilize erodingstreambanks along Interstate 480 within the Village. Estimated Construction Cost =$2,000,000,

Additionally, master planning and routine maintenance necessary to prevent and address severe

flooding, erosion, and water quality problems will halt, The Stormwater Master Plan for the

northern portion of the Cuyahoga River watershed (a $4,000,000 plan), that would have provided

cost-effective stormwater management for the West Creek watershed, was to begin in 2015.

Cuyahoga Heights. The Southerly Wastewater Treatment Center ("Southerly WWTC")

is located in Cuyahoga I-leights and discharges treated wastewater to the Cuyahoga River,

Southerly WWTC serves over 530,000 people in 38 Member Comtnunities. During dry-weather

conditions, the treated flows average approximately 100-120 million gallons per day. During

rainfall events, however, flows arriving at Southerly WWTC increase dramatically. For example,

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on February 28, 2011, signiflcant rainfall coupled with snow melt caused the flows arriving at

the Southerly WWTC to increase to approximately 1.2 billion gallons per day, causing

widespread floodiilg; and over $1.8 million in property damage. 'rhe high flows were caused by

stormwater entering sanitary and combined sewers across the Southerly W WI'C service area.

During high Cuyahoga River levels a.fter rainfall, the ability of the Southerly WWTC to

discharge treated flows is also compromiscd. Ffighriver levels restrict the amount of flow that

can be discharged safely. A U.S. Geologic Survey gage on the Cuyahoga River indicates that

this potential for flooding during high river levels has significantly risen in the past decade, The

Southerly WWTC's operation is crucial to protecting the water quality in the Cuyahoga River,

and hence all of Lake Erie. Yet witliout the Program, these costly problems will worsen.

Oltnstecl Township. Olmsted Township contains 6.3 miles of regional waterways that

were to be inspected, maintained, and operated by the District, including the Rocky River

tributaries of Plum Creek and Minnie Creek (including Schady Ditch). The Township has

flooding, erosion, and water quality problems and will have difficulty addressing them without

the Program. I'hese problems are so bad that flooding often prevents residents from accessing

their houses, and children from going to school. The Rocky River watershed problems iziclude;

• Severe, reoccurring flooding along Schady Road resulting in road and propertyflooding. T'his would have been addressed through the Rocky River StormwaterMaster Plan in which long-term solutions would have been determined throughadvanced computer modeling. Estimated cost of cntirePlan =$2,600,000.

• Severe, reoccurring flooding along Bagley Road in fxont of the GlmstedFalls MiddleSchool which results in road closures, resident loss of ingress and egress to homes,and disrupting school activities. "I,his problem would have also been addressedthrough the Rocky River Stormwater Master Plan that has been abandoned.

Without the Program, the Township is unable to address these problems in a systematic, cost-

effective way that takes into account causes outside of the'I'ownship'slines.

-8-

Parma. 7'he City of Parma contains 19.9 miles of regional waterways that were to be

inspected, maintained, and operated by the District within the Baldwin Creek, a Rocky River

tributary, and Big Creek and West Creek watersheds, both tributaries to the Cuyahoga River,

The City has flooding, erosion, and water quality problems across these streams that they will

have difficulty addressing without the Program. District projects planned include:

Flooding and Property I?amage along Chevrolet Branch of Big Creek--The Districtcompleted the $117,932 Chevrolet Stormwater Basin Study. This study detailedspecific alternatives to address the chronic residential flooding along ChevroletBoulevard. T'he design and construction costs of these solutions are estimated at$2,300,000. This will no longer take place and theses chronic problems will not beaddressed.

• Baldwin Creek Streambank Stabilization-Erosion of Baldwin Creek threatensinfrastructure and utilities along F;ast Linden Lane. Estimated Cost = S60(},000.

In the brief time that the District's Program was in operation, District Stream Inspection and

Inventory crews identified numerous instances of severe debris blockages, streambank erosion,

and infrastructure in poor or failing condition in the City, including eight locations along Big

Creek and six locations on West Creek where the stream channel is 50% to 100% blocked with

debris that could result in property flooding.

These are only a few examples. Because the Program is integral to solving regional

stormwater problems, amici cuYiae urge the Court to accept jurisdiction.

STATEMENT OF THE CASE AND FACTS

Amici curiae adopt the statement of the case and facts from the District's brief.

ARGUMENT

Proposition of Law: Chapter 6119 Provides the Northeast Ohio Regional Se`ver DistrictWith Authority to Manage Stormwater in Member Cammunities.

The Eighth District's majority opinion disregards the plain text of Chapter 6119, which

gives the District authority over stormwater issues. See R.C. 6119.01 and 6119.011(K).

-9-

'I'hrough misconstruing the plain language, the court twisted the legislative mandate embodied in

Chapter 6119. Indeed, its opinion fails to even cite the relevant statutory language. See

Northeast Ohio Regional Sewer Dist. v. Bath 7Wp., 8th Dist. Nos. 98728 & 98729, 2013-Ohio-

4186, 44 (8th Dist.) (hereinafter, "NEORSD"). This Court should adopt the text-based analysis

of the dissent, which acknowledged that courts "`are not empowered to read into the law that

which is not there, and it is [their] duty to give effect to the plain meaning of the statute's

lailguage."' (Citation omitted) Id. at ¶ 92 (Jones, P.J., dissenting in relevant part). Even

assuming theCour-tlooks beyond the textwhich it need not do-the statutory scheme and

legislative history further support Chapter 6119's plain language reading. Accordingly, given

the great public interest and the questionable decision of a split-court, the Court should accept

jurisdiction and reverse the Eighth I)istrict.

A. The Plain Language of Chapter 6119 Authorizes the District to Manage Stormwater.

Following the text of the statute, including the definitions ofspecific terms set forth

therein, it is clear that Chapter 6119 gives the District authority over stormwater issues, This

Court mandates that the judiciary follow the unambiguous words of a statute. "[T ]he first rule of

statutory construction is to look at the statute's language to determine its meaning." Lancaster

Colony Corp. v. Limbach, 37 Ohio St.3d 198, 199, 524 N.E.2d 13189 (1988). Chapter 6119.01

provides that municipalities may form a "district" in order "[t]o provide for the collection,

treatment, and disposal of waste water within and without the district." Whether this grant of

authority includes stormwater depends on the definition of "waste water." Thiscase might be

complicated if the General Assembly left unaddressed the definition of "waste water,"' leaving

districts and the courts to conteniplate its meaning. 13ut here YheGeneral Assembly specifically

defined "waste water" as "cxny storm n)ater• and any water containing sewage or industrial waste

or other pollutants or contaminants derived from the prior use of such water." R.C. 6119.011(K)

-10-

(emphasis added). This def.inition unambiguously includes "storm water," and hence the General

Assembly granted districts authority over "stormwater." See id.

The Eighth District created atnbiguity in this clear definition where none exists. First, the

Eighth District failed to cite the relevant definition of "'waste water" from R.C. 6119.011(K). It

stated that instead "[u]nder R.C. 6119.011(.K), `waste water means' `any storm water containing

sewage or other pollutants. "' (Citation omitted.) NEORST3 at !; 44. But that is simply not what

the statute says. Instead, Chapter 6119 defines waste water as "any storm water and any water

containing sewage ...." R.C. 6119.011(K) (emphasis added.) By its plain language, the

definition includes two types of water: "[1] any storm water and [2] any water containing sewage

or industrial waste." Id. (emphasis added.) Indeed, the definition repeats the word "water,"

making clear that it covers both types of "water," (storm water and sewage water) and not only

water that contains both characteristics (storm water containing sewage).

There is no other plausible reading of this text. If a Chapter 6119 district does not have

authority over stormwater, then why does the definition of "waste water" refer to storinwter at

all? It could have simply said that "`waste water' meazis .., any water containing sewage or

industrial waste." Read'zng the statute in that manner fails to give meaning to the plirase "any

storm water" that is included in R.C. 6119.011(K). Tnterpretinga statute as to render parts of it

superfluous violates a cardinal rule of statutory interpretation. Rhodes v. New f'hiladelplaia, 129

Ohio St.3d 304, 2011-Ohio-3279, 951 N.E.2d 782, ¶ 23 ("We must give effect to every term in a

statute and avoid a construction that would render any provision meaningless, inoperative, or

superfluous.").

Giving meaning to the reference to stormwater, the Eighth District asserts that

C;hapter 6119 gives authority only over stormwater containing sewage or other pollutants. This

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reading too is untenable because it effectively deletes words from the statute. Essentially, the

court read the definition of waste water as follows: "any storm water andaily-w-at^= containing

sewage or industrial waste." This interpretation not only deletes the Legislature's words, but it

also leads to an absurd result. If a district had authority only over "stormwater containing

sewage," (as the Eighth District held), it would lack authority to deal with sewage in any other

type of water. That is, the sewer district would lack autho,rity to deal with human waste from

toilets. It is implausible to assume that the Legislature intended that there be separate systems

set up for stormwater containing sewage and all other water containing sewage. See NEORSD at

¶ 94 (Jones, P.J., dissenting). Indeed, that is not how any of the sewer districts created under

Chapter 6119 operate. Chapter 6119 should not be interpreted to have si7ch absurd results.

117e.clcorp, Iaac. v. Ohio Dept. of'Job & Faniily Servs., 121 Ohio St.3d 622, 2.009-Ohio-2058, 906

N.E.2d 1125,'^ 13. ("We must avoid constructions that create absu.rdities.")

The plain language of the statute, therefore, dictates that Chapter 6119 gives the district

authority to address stormwater. Given this textual reading, "`the interpretative effort is at an

end, and the statute must be applied accordingly."' (Citation omitted.) Lancaster Colony Corp.,

37 Ohio St3d at 199, 524 N.E.2d 1389. Though the Court need not go further in its analysis, the

statutory scheme and legislative history also support this textual reading.

B. The Statutor), Scheme Supports the District's Authority to Manage Stormwater.

"S'he District's authority under Chapter 6119 to manage stormwater is further illustrated

through considering the statutory context and overall statutory scheine. See D_A.B. E., .Iaiz•: v.

Toledo-Lucas Cty. Bd. of Ilealth, 96 Ohio St.3d 250, 2002-Ohio-4172,173 N.E.2d 536,41 19.

"I'heinclusion of "storm water" in the definition of "waste water" is not an anomaly in the

statutory scheme. For example, R.C. 6119.06(G) provides that one of the "rights, powers, and

duties" of a Chapter 6119 district includes construction and operation of "water resource

-12-

projects." In turn, "water resource projects" include, among others, "waste water facilit[ies]"

and "water management facilit[ies]," R.C. 6119.011(G), both of which directly reference

stormwater. A "waste water facilit[y]" may include "storm and sanitary sewers and other

systems ... designed to transport waste water." R.C. 6113.011(L). Similarly, a "water

management facilit[y]" means "facilities for the purpose of the development, use, and protection

of water resources" including "facilities for stream flow improvement, dams, reservoirs, [and]

stream monitoring systems;" "facilities for the stabilization of stream and river banks," and

"facilities for the treatment of streams and rivers, including, without limiting the generality of the

foregoing, facilities for the removal of oil, debris, and other solid waste from the waters of the

state and stream and river aeration facilities." R.C. 6119.011(M). Stabilization of streams and

riverbanks, treating rivexs, removing debris from streams, and other such water management are

integrally related to stormwater, and they are all parC of the Distriet's Program.

The Eighth District reasoned that Chapter 6119 could not have authorized districts to

address stormwater because other types of districts delineated within Title LXI [61] had

authority to address erosion, flooding, and other stormwater problems. Specifically, it stated that

the General Assembly "gave specific stormwater-related authority to watershed districts and

conservancy districts" finder R.C. 6105.12 (watershed districts) and R.C. 6101.04 (conservancy

districts). NEORSD at 46. The court's reading of the statutory scheme, however, is too narrow.

1:he court assumes that because one type of district has certain authority, another district must

not have it. This assumption is invalid. Indeed, the Court need only look to the main provision

regarding conservancy districts in Chapter 6101 to note that they share some of the same

authorities as water and sewer districts in Chapter 6119. Canservancy districts, for example,

may not only regulate "the flow of streams," but also may "[p]rovid[e] for the collection and

-13-

disposal of sewage and other liquid wastes produced within the district." R.C. 6101.04(E) and

6101.04(1-I). Therefore, the authority of different types of districts are not mutually exclusive.

Instead, the General Assembly has created several different types of districts that municipalities

may enter given their needs.

Instead of being mutually exclusive, it makes logical sense that the General Assembly

would allow Chapter 6119 districts focusing on sewer issues and water supply authorittir to

address stormwater as well. See R.C. 6119.01, As the trial court reasoned in granting the

District's motion for summary jud.gment on this point, stormwater and sewage were often

addressed together. It stated: "one cannot separate stormwater and wastewater treatment and

disposal so easily under the systems in existence within the District [because] historically many

of the sewer prograrns were originally constructed as 'combined systems."' The trial court,

therefore, was "not inclined to find the legislature's purpose while enacting Chapter 6119 was to

establish separate political subdivisions (bureaucracies) to address wastewater issues and

separate political subdivisions to address stormwater issues that would result in duplicative and

redundant government services." Northeast Ohio Regianal Sewer Dist. v. Bath TWR., Cuyahoga

C.P, No. CV-10-714945, 4(h'eb. 15, 2012). The General Assembly provided municipalities the

flexibility to determine, when forming districts under Chapter 6119, that it is helpful to plan

sewer management and stormwater management in tandem.

C. The Legislative History of Chapter 6119 anc1Authorizing Order Supports theDistrict's Authority to Manage Stormwater.

The legislative history of Chapter. 6119 further indicates that, as per the plain language of

the statute, the District has authority over stormwater. The July 6. 1971 legislative briefing

report regarding that year's amendments to the Chapter mentions, in its first sentences, that the

law "expands regional water and sewer district pulposes and powers, chiefly to permit a district

-14-

to undertake water resource development projects such as river-bank stabilization works, flow-

augmentation projects, and underground recharge systems." 134 v.S. 166, eff. Nov. 19, 1971.

These are the precise type of water resource development projects that are part of the Program.

Similarly, since its inception, the approved plans of the District and its actions have

involved stormwatermanagement. That is, its involvement in stormwater is not iiow a new

undertaking. The District's 1972 cotirt-approved plan included the construction of facilities for

"retaining basins" and "storm water handling facilities." District's 1972 Petition, § 5(c)(1). In

1975, the court-approved plan specifically stated that, under Chapter 6119, the "District shall

develop a detailed integrated capital improvement plan for regional management of wastewater

collection and storm drainage designed to identify a capital improvement program for the

solution of all itzteY-comniurzity drainage problems (both storm and sanitary) in the District."

District's 1975 Petition, § 5(m)(3) (emphasis added). Therefore, as early as 1975-only a few

years after the amendm.ents-systematic stormwater drainage plans were contemplated and

approved. Under this plan, the District has invested more than $12.9 million over the last thirty

years in a series of stormwater-related studies and constnzction efforts without cha.llenge. There

have been at least twenty-five stormwater-related projects started since the 1970s. This historic

use helps demonstrate that the original legislative understanding was that Chapter 611.9 districts

had authority to manage stormwater, just as the District has done with its Program.

-15-

CONCLUSION

For the above-stated reasons, amici curiae respectfu]]y request that the Court grant

jurisdiction over this appeal.

^ luevette McGee Brown (0030642)ONES DAY

325 John H. McCorulell Boulevard, Suite 600PO Box 165017Columbus, Ohio 43216-50171'el: (614) 469-3919Fax: (614) 461-4198Email: . mc eebrowmra;jonesday.com

11.ttorney for Village of Cuyahoga Heights,Village of Moreland Hills, and Orange Village

(4-Y-A

fvj-el rome Dowling

LLAGEVILLAGE OF BROOKLYN IIE^GHTS20800 Center Ridge Road, Suite 222Rocky River, Ohio 44116Tel: (440) 331-1010Fax: (440) 331-88121-;mail j cir7vY 1iLi ,^^ ca ^ crx. ^^i t--

A.ttorney for Village of Brooklyn Heights

Respectfully submitted,

^^^^^4.^:._____-Scott ClaussenCITY OF BROOKLYN7619 Memphis Avenue13rookl.yn, Ohio 44144Tel: (216) 635-4216Fax: (216) 351-2133Email: sclaussen@brooklynohio.gov

Attorney for City of Brooklyn

Peter H. HullCITY OF MIDDLEBURG HEIGHTS15700 Bagley RoadMiddleburg Heights, Ohio 44130Tel: (440) 234-8811Fax: (440) 234-8993Email: peterhull,@^gnail.com

.Attorney for City of Middleburg I-leights

Luke McConville Dale F. PelsozyWALDHEGER COYNE CO., gAo CL7YAI-IOGA COUNTY1991 Crocker Road, Suite 550 PROSECUTOR'S OFFICEWestlake, Ohio 44145 1200 Ontario Street, Justice Center 8th Fl.Tel: (440) 835-0600 Tel: (216) 448-7757Fax: (440) 835-1511 Fax: (216) 44307601Email; luke^a>healthlaw.com Email:dpelsozy(a,prosecutor.ahgaacountv,us

Attorney for Village of Newburgh Heights Attorney for Olmsted Township

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Tf950)Timothy D beck Vv'i]Iiam iVi. Ondrey C'..rruber (0PARMA CI Y HALL t^ ^ CITY OF SHf1,KER HFIG)E-I^ ^6611 Ridge Road 3400 Lee Road ^Parma, Ohio 44129 Shaker I-feights, Ohio 44120Te1; (440) 885-8408 Tel: (216) 491-1445Fax: (440) 885-8172 Fax: (216) 491-1447Email: Ia^tjoffiarma-oll.gcrv Email: william, >r^zber'c^shal^eronline.conl

Attorney for City of Parma Attorney for City of Shaker Heights

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G ^s'Mcrc,-•e. s-+z. ,. ^,'

Thomas P. O'DonnellVILLAGE OF HIGHLAND HILI.S3700 North.field Road, Suite I IHighland 13ills, Ohio 44122Tel: (216) 283-3000Fax: (216) 283-2516Emait: todoruiell@todlaw.com

Attomev for Village of Highland Hills

Jo h W. 1emert, Jr. (0fl11573)J SEPU W. DIEMERT, JR. &ASSOCIATES, CO., LPA1360 S.O.M. Center RoadCleveland, Ohio 44124Tel: (440) 442-6800Fax: (440) 442-0825Email: receptionist@di.ezrzertlaw.corn

Attorney for Mayfield Village, Ohio

i ichael D. PokornyCITY OF PARMA HEIGHTS6281 Pearl RoadParrna Heights, Ohio 44130Te1: (440) 884-9600Fax: (440) 884-1802Einail : I aw@_,,pazmaheightsoh. gov

Attorney for City of Parma Heights

kvucnaet r, 12ograsso ^t)-^^^^'S'/)CITY OF SOUTH, F TCT:,ID1 349 South Green RoadSouth Euclid, Ohio 44121Tel: (216) 3 81-0400Fax: (216) 381-0364Ernail: i-nlograsso@seuellid.com

,Attorney for City of Soutl7 EiLiclid

D id Lalnbros, S654)XIT^ta.^(x:^ t)]F "t

OC1.,LI;Y VIEW

C?n:e Berea C"Um.mons, Stkite. 216Bez•ea, OMo 44017TeI: (440) 816-1525Fac: (440) 816-0604Lma.il: daldmbrosa;yabQo.com

Attorney for Village of Valley View

eresa Metcal 1.3easIe/( 96 14)CALFEE, HALTER & ISWC}L LLFThe Calfee Building1 405 East Sixth StreetClevelajid, Ohio 44128Tel: (216) 587-6500Fax; (216) 587-6594Emaii tmbeasleyc^,r7calfeecom

Attornev for City of Warrensville Heights

CERTIFICATE OF SERVICE

I hereby certify that on this 12 day of November, 2013, a true copy of the foregoing

amicus brief was served by regular, U.S.1v1ai1, postage prepaid, upon the following:

Mark l. WallachThacker Martinsek LPA2330 One Cleveland Center1375 E. 9th StreetCleveland, OH 44114

James F. LangMatthew J. KucharsonMolly A. DrakeCalfee, Halter & Griswold LLP1405 East Sixth StreetCleveland, OH 44114

Marlene SundheimerDirector of LawNortheast Ohio Regional Sewer District3900 Euclid. AvenueCleveland, OI-l 44115

Sheldon BernsBenjamin J. OcknerJordan BernsGary F. WernerTii-nothy J. DuffBerns, Ockner & Greenberger, LLC3733 Park East Drive, Suite 200Beachwood, OH 44122

John H. GibhonDirector of LawCity of Cleveland Heights40 Severance CircleCleveland Heights, OI-t 44118

Christopher L. GibbonHeather R. Baldwin Vla.sukWalter & flaverfield LI.PThe Tower at Erieview1301 East Ninth Street, Suite 3500Clevelatld, C)H 44114-1821

David J. MattyShana A. SamsonJtrstin WhelanRademaker, Matty, Henrikson & Greve55 Public Square, Suite 1775Cleveland, OH 44113

-^.A.....

of the Attorneys for Amici Cf'urcre