Dispatch Editorial - Troubled Waters: Cities Right to Sue

State law endangers their ability to prevent tainted reservoirs

Thursday September 17, 2015 5:39 AM

As five Ohio cities sue to overturn a hastily passed state law that threatens the safety of drinking water for millions, the legislature should fix its mistake rather than risk a legal rebuke.

A provision slipped into the new state budget — at the 11th hour and without proper debate — essentially allows neighbors along rivers and reservoirs to trespass, mow and alter publicly owned lands. This ill-considered permission could justify about any change on these buffer strips, some as wide as 400 feet.

Trees blocking a waterfront view? Chop ’em down. Tall grasses ruining a manicured lawn? Mow. Want easier access to the waterfront? Build steps.

Cities aren’t being unreasonable in blocking such intrusions. These dense vegetation strips filter pollutants from runoff and prevent erosion.

The strips “are integral to plaintiff’s ability to provide safe, clean, healthy and potable drinking water from drinking-water reservoirs that they own,” says a lawsuit filed last week in Franklin County Common Pleas Court.

Columbus, Westerville, Akron, Barberton and Lima ask the court to block the law from taking effect on Sept. 29.

It’s disappointing that the legislature opted to pander to homeowners who resent that their view or access to the water is blocked. They paid for waterfront property because they want to see water.

But here’s the catch: They don’t own that property. The public does. And they aren’t entitled to alter property they don’t own.

Columbus has, in fact, won a dozen lawsuits against owners who infringed on public lands.

If this law stands, what’s to stop neighbors from “fixing” other public properties?

Imagine a neighbor whose backyard faces the Whetstone Park of Roses deciding to remove park trees blocking his view of the roses, or yanking out plants drawing bees.

It’s hard to imagine how such a bad idea made its way into law, especially since barely a month had passed since Columbus had warned pregnant women and babies to avoid drinking water that, at the time, was tainted with nitrates from lawn and field runoff.

Less than a year earlier, 500,000 residents in Toledo were forced to find bottled water after a toxic algae bloom formed over its water intake pipe from Lake Erie.

Cutting down a single tree or clearing a spot of land might not seem to create a public hazard. But it becomes the proverbial “death by a thousand cuts” when hundreds clear land, allowing yard treatments and urban runoff to seep into the water supply.

Without these buffer zones, residents can look forward to more stinky water and higher bills: It is costly to test and treat affected water, and those costs are passed onto ratepayers.

This ill-thought provision is objectionable on a number of other fronts: It violates the state constitution’s single-subject rule. It is vague. And, as the lawsuit notes, it calls for an “ unconstitutional taking” of property by private landowners without a “legitimate government purpose.”

Two Columbus Democratic state representatives, David Leland and Michael Stinziano, have introduced House Bill 304 to undo this unfortunate provision. The General Assembly should quickly embrace this opportunity to protect Ohioans and spare taxpayers of five cities the cost of appealing lawmakers’ misstep.