MSD Stormwater Fee Gets Supreme Legal Test

By Tomich, Jeffrey | St Louis Post-Dispatch (MO), May 19, 2013 | Go to article overview

MSD Stormwater Fee Gets Supreme Legal Test


Tomich, Jeffrey, St Louis Post-Dispatch (MO)


BALLWIN * It's seven steps from Ron Cox's patio door to the back of his lot, abutting Fishpot Creek.

The walk used to be longer. That was before erosion washed away a third of his back yard, trees and a fence. Left behind was a 25- foot cliff overlooking the creek a cliff that inched closer to his back door every time the creek swelled from heavy rain.

Luckily for Cox, the Metropolitan St. Louis Sewer District spent $1 million to rebuild the creek bank and stabilize it with tons of rock to prevent further erosion. The initial work was completed in 2008 just before the remnants of Hurricane Ike turned Fishpot Creek into a raging river.

MSD officials point to Fishpot Creek as an example of the kind of project needed to address stormwater runoff across its 525-square- mile service area. But it's also the kind of project it can no longer afford, particularly west of Interstate 270, after a circuit court ruling in 2010 stripped it of its ability to charge a stormwater fee based on the amount of impervious area on properties.

The so-called impervious fee was initially set at 12 cents per 100 square feet of rooftop, driveway, patio or other impervious area on each parcel, or about $3 a month for the typical residential customer. The fee would be gradually increased over seven years to 29 cents, or $7.25 a month.

But only months after it was implemented, the stormwater charge was challenged in a lawsuit by William Zweig, a doctor from Chesterfield. Two other residents later joined as plaintiffs.

The court agreed with their argument that the fee was actually a tax and that it violated the Hancock Amendment to Missouri's constitution because MSD didn't get voter approval. An appellate court upheld the ruling 2-1 last year but agreed with the lower court that MSD didn't have to refund $90 million it had already collected.

MSD goes back to court the state's highest court on Tuesday in a last-ditch effort to save the stormwater fee, which it says is critical to address a growing backlog of erosion, flooding and water- quality problems.

"MSD is willing, it's in our charter, to be responsible for these issues," said Brian Hoelscher, MSD's executive director. "But you can't be responsible unless you get the funding to be responsible."

Richard Hardcastle, Zweig's attorney, said MSD was simply arguing its case to the wrong party. The issue, he said, isn't whether there are stormwater problems to be addressed, or how much money is needed to solve them. It is how the money is raised.

"MSD may very well have stormwater needs," he said. "But make that case to the voters and have them approve it instead of making the case to the judge."

A TOUGH SELL

If MSD loses again, it will have to do just that.

"It would mean we'd need to vote and we would be going back to our stakeholders and back to our rate commission setting up a way to vote on this," Hoelscher said.

No tax is popular. But a stormwater tax in particular would be a tough sell given the stagnant economy and sharp increases in sewer rates required to fund $4.7 billion in sewer improvements over the next two decades, he said.

The nature of stormwater problems also makes it challenging to get a tax passed. Though everyone contributes to runoff, few are seriously affected.

While it might not be obvious to everyone, stormwater runoff, or urban runoff, contributes to a laundry list of problems. Eroding creek banks eat away backyards; the lack of storm sewers or other infrastructure in areas such as Cool Valley and Lemay contribute to flooded streets, yards and basements.

Rainwater and melting snow also carry sediment, pet waste and chemicals from roads, parking lots and lawns into streams, creeks and ditches.

"Stormwater is a huge problem, and it impacts water quality in a huge way," said Karla Wilson, manager of the Deer Creek Watershed Alliance, an initiative organized to help clean up the central county watershed. …

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