WILMINGTON — City council approved an authorization allowing the city to file a lawsuit against the Ohio Department of Natural Resources (ODNR).
The motion was accepted after an executive session at Thursday’s Wilmington City Council meeting. Safety/Service Director Brian Shidaker told the News Journal that the potential lawsuit would be over issues that are involved with ODNR’s current lawsuit against the Army Corp of Engineers.
“Our contract is with ODNR, and ODNR’s contract is with the Army Corp of Engineers,” said Shidaker.
He noted that no lawsuit exists yet, but the motion allows the city administration to enter into one if the city later chooses to. Shidaker did not know when any potential lawsuit would be pursued.
The current lawsuit against the Army Corps of Engineers started in March 2020 when Ohio Attorney General Dave Yost sued the Army Corps to recoup what the state and city claim are improper charges.
ODNR’s ongoing battle against the U.S. Army Corps of Engineers is over what city officials called unfair and exorbitant invoices from the Corps related to Wilmington’s primary drinking water supply from Caesar Creek Lake. ODNR filed suit over those charges.
The lawsuit, filed in the U.S. Court of Federal Claims, contends that the Corps of Engineers has increased costs without providing complete, itemization to support the dramatic price increases. The itemizations that have been provided list questionable charges, according to an earlier news release from the Ohio AG’s office.
Under an agreement reached in 1970, ODNR pays the Army Corps of Engineers for maintaining and operating the reservoir, a water source for the City of Wilmington. ODNR bills the city for these same costs.
The city believes that, according to the its contract with ODNR, the maintenance and operational charges are limited to those involving flood control and water supply. However, some available receipts list charges for unrelated purposes, such as travel to a Cincinnati boat show, solar panel repairs, a washer and dryer, and a set of American flags.
ODNR’s lawsuit seeks damages to compensate for the overcharges and a judgment specifying what constitutes maintenance and operation costs under the contract. Attorneys from Yost’s Environmental Enforcement Section are representing ODNR in the case.
On the same day in 2020 that Attorney General Yost filed the lawsuit, the city received the largest annual bill ever for Corps activities at the man-made lake. The bill of $306,522.64 was received for operations and maintenance at the lake was more than $100,000 higher than the one received a year earlier.
The city-ODNR contracts call for Wilmington to pay 12.7 percent of operations and maintenance costs related to flood control and water supply at the lake. The Army Corps bills ODNR, which is responsible for paying the Army Corps. ODNR bills the city for the operation and maintenance costs. The city’s position is that is responsible under the contract for paying only actual operation and maintenance costs and not for any unrelated costs lumped into that category.
Wilmington began using water from Caesar Creek Lake in 1993. For about the first 20 years, the annual operations and maintenance charges averaged about $129,000, according to city records. But since 2015, the average bill has increased to about $223,000.
The itemized bills from the Army Corps — which include hundreds of line items — from the July 2015-June 2016 bill include: $144 for “toilet paper holder double,” $400 for “double post locking toilet paper holders,” $300 for “bird seed,” $660 for “brochure stands,” and $152 for “replacement mascot transport” among other charges that the city and ODNR are questioning.
Also during council:
• The council approved a resolution allowing an expansion on the Polaris facility at 3435 Airborne Road. The project will expand the facility by approximately 165,000 square feet beginning on April 1 and will be completed around October. The expansion is believed to help create “no less than 15 new full-time permanent job opportunities.”
• Matt Purkey was named the council’s President Pro Tem.
Reach John Hamilton at 937-382-2574