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All homeowners want is not to worry when it rains. Is the sewer system structure getting in the way?

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Posted at 5:00 AM, Jul 27, 2020
and last updated 2020-07-27 20:36:38-04

CINCINNATI — Every time it rains in Cincinnati, Robert Buckner is filled with a flash of anxiety.

“Every time it happens, your nerves are shot really,” he said.

Buckner lives along Muddy Creek in Green Township. In the last seven years his garage, which is built under his home, has flooded several times from storm water and sewage backups. The worst time was in 2018, when he said 84 inches of sewage and storm water filled the garage. It caused more than $100,000 in damage.

More than the physical loss of property, though, it’s taken an emotional toll on him and his wife.

“My wife has final stage (COPD). I’m scared she’s going to die,” he said. “With COPD, any bacteria you can get can go airborne. And, emotionally, she sits up all night when we have big storms.”

Chronic Obstructive Pulmonary Disease affects the lungs and causes reduced airflow, making it difficult to breathe.

Every time there has been a backup or flood, Buckner has filed a claim with the Metropolitan Sewer District. And he said each time he’s received about half the value of the damage.

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A toilet overflowing at Robert Buckner's house.

More so, he said, it’s difficult to get a clear answer from anyone when there is an issue because of the structure of MSD: Hamilton County owns the utility and holds the purse strings and the City of Cincinnati employs and operates it day to day.

“They don’t work together,” he said.

The relationship between the city and the county in regard to MSD is a tired one.

Major projects have stalled because of disagreements on how to handle them. This includes the Upper Muddy Creek Interceptor, which is a consent decree project that was supposed to be completed by Dec. 31, 2019. The consent decree is a federal mandate of projects that must be done in order to comply with the Clean Water Act. Fixing an aging sewer pipe in Muddy Creek, which has been leaking millions of gallons of raw sewage into the creek annually, is part of that mandate.

The city and county disagreed on how to handle the project for more than a year.

A vote in June changed that.

After much work on both ends, project approval has passed with some compromise. It includes the city’s desire to replace the old pipe with a new 36-inch pipe. And the county’s desire to have more oversight, which includes a contingency plan in case the larger pipe causes flooding down stream.

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During that June county commission meeting, MSD Director Diana Christy noted that this could be a breaking point, helping mend the relationship.

“We have a lot more work we have to do together and hopefully this is the start of that so we can proceed with the rest of that expeditiously,” Christy said.

To that, County Commissioner Denise Driehaus said, ”Hopefully the process will look a lot different than this one did. Because this one went way too long. I want to make sure as we move through any of the (upcoming) projects, we’re continuously talking to each other.”

MSD now has regular meetings with the county commission to ensure a line of communication is open.

So, was it a breakthrough? Buckner isn't so sure.

Although the Muddy Creek project will have no impact on his situation, Buckner said movement on one major project doesn’t change what he feels is causing the biggest problem for MSD rate payers: the structure.

He said costly court battles and a lack of one sole leader prevents the sewer district from responding to issues when they arise.

“They spend more time arguing between themselves than getting stuff done and I don’t know how much money they spend suing each other and going to court," Buckner said. "But, it’s a total waste of money. They could give it to me if they want to."

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According to information WCPO requested from Hamilton County, the county has paid roughly $6.5 million since 2014 to Vorys, Sater, Seymour and Pease for advisement on MSD-related issues and work on the consent degree. That includes litigation with the City of Cincinnati.

Of that money, the county estimates between $2 and $2.5 million was specifically for litigation.

On the city side, invoices requested by WCPO show the City of Cincinnati has paid nearly $600,000 to outside counsel Taft Stettinius & Hollister over litigation with the county. It’s referred to in the invoices as the “1968 agreement,” which is an agreement entered into in 1968 that set up the current structure of MSD. It was set to expire in 2018, but a federal judge has ruled more than once that the structure will remain in place.

So are the court rulings truly a waste of money, as Buckner said? It depends who you ask.

“This conflict is wasting a lot of money,” said City Council Member Greg Landsman, who is chair of the Major Projects and Smart Government committee, which oversees MSD.

“The rates have not gone up related to any of this," Driehaus said. "Rates have been flat for the last three or four years."

Both Driehaus and Landsman agree the work done to compromise on and pass the Muddy Creek project was a major step. And shows the two sides can work together.

“I think we’ve made progress,” Landsman said. “Commissioner Driehaus and I, and the folks at MSD, got together and we worked through a very complicated project in Muddy Creek. I think we figured out how to build more trust, communicate more effectively, and so I do think that is a positive step and will help in the long run.”

But, they also agree structural change needs to happen.

“The structural issue still is outstanding,” Driehaus said. “We did have the judge weigh in and reiterate that the county owns, the city runs. The city has to act as an agent of the county and abide by the policy directives, so that was good news. But, in the meantime we still have to come up with a structure that gets rid of the dysfunction that’s built into the structure right now.”

Back in May, Judge Michael Barrett issued an order that slapped both governments on the wrist for their bickering, which he wrote was “a waste of precious time and rate-payers’ money.” He ordered the two sides to work together and return to mediation.

Driehaus said the county has been working internally to come up with a proposal for a new structure for MSD.

“I don’t want to go in front of the judge (for mediation) with nothing,” she said. “That’s not a good approach; that’s not efficient. So we are working on a model that we think will work for both the county and the city. We’re not there yet, but we’re getting there.”

The city and county have come close to a structural change for MSD on at least two separate occasions.

In 2018, the city and county agreed to bring all operations under the county, if those employees still were able to contribute to the city’s pension system. That was rejected by the state. A second proposal by the county to bring top MSD employees under the county and leave the remainder under the city was rejected by Mayor John Cranley.

“We know what the city’s priority is," Driehaus said. "It’s their employee base and their retirement system. I, too, don’t want to implode the city retirement system. Our priority is keeping rates as low as possible and accomplishing these consent decree items and asset management. So we need to marry those things.”

How to “marry” those things still isn’t clear.

“I think it’s important to have clear leadership and accountability,” Landsman said. “MSD and the staff, they lead the work day in and day out. And then the county has to approve the budgets and the projects, so that causes tension and conflict and stagnation. Things that just don’t get done. I think you have to have a single leader and somebody in charge. Whether it’s the city or the county, we tried the county. That plan didn’t work. So I do think we have to look at what it looks like to have the city run it from top to bottom.”

All this is to say, both sides think their recent work on the Muddy Creek project has helped ease tensions and move work along.

And, yes, both sides say structural change still needs to happen.

But when that change could actually come to fruition is anyone’s guess.

Driehaus said that the dysfunction plays no role in what most rate payers deal with when it comes to day-to-day issues: sewer backups.

“The lack of cooperation regarding the structure is not impacting the sewer back up program,” she said.

That’s what helps pay for claims and cleanups for people who experience backups, like Buckner.

For 2020, the county allocated about $10 million to the sewer backup program. Through the end of May, MSD records show about $4.6 million has been spent on claims, cleaning, prevention and more. Driehaus noted that money will always be allocated for those who need it. And that the county continues to pledge support in giving any dollar amount necessary for that fund to ensure rate payers are being taken care of.

That answer isn’t good enough for people like Buckner.

“They could’ve bought all of these houses out for the money they spent arguing,” Buckner said. “Why don’t I live in your house for awhile, and you come over here and live here in the next storm and then you see it and then you tell me how you feel about it. Because they don’t experience it.”

He’d like to see the county take over the system entirely.

And through his work with Communities United for Action, which advocates for sewer reform in Hamilton County and Cincinnati, he’s pushing for a citizen oversight committee to oversee the consent decree, as well as a countywide system ensuring plans for any new development or storm water projects don’t adversely impact surrounding communities.

“Rates have been flat for the last three or four years," Driehaus said. "We are doing projects, we are moving things forward, we’re complying with the consent decree. We need to get this structure in a place where we are all comfortable with it."

In a statement provided to WCPO Monday afternoon, MSD director Diana Christy wrote:

“MSD is working with the owners of about 30 homes along Muddy Creek Road to voluntarily purchase and remove those properties. Mr. Buckner owns one of those properties. These homes have experienced recurring sewer backups and flooding over the years. The purchases would be funded through a FEMA/OEMA grant, which is expected to be awarded later this year.”