With $4 million more in consent decree spending, Fort Smith Vice-Mayor reemphasizes pushback against EPA

The Fort Smith Board of Directors approved an additional $4 million in consent decree-related items Tuesday night (March 14) at its second regular meeting in two weeks, pushing consent decree contracts to more than $9 million in the two-week period.

The main project pertains to Phase A Sub-Basin P007 and consists of the replacement and rehabilitation of approximately 32,200 linear feet of sewer main ranging in size from six- to 18-inch in diameter, associated manholes, and other appurtenances. It is designed to reduce sanitary sewer overflows (SSOs) by reducing ground water infiltration.

The low bid for the project came from Goodwin & Goodwin, Inc., in the amount of $3.952 million. The bid was initially rejected due to non-compliance with the experience requirements for performing the pipe bursting portion of the contract (17% of the overall price tag). After the city notified Goodwin & Goodwin, the company resubmitted those qualifications, and all bidders were notified. Forsgren, Inc., was the No. 2 bidder at $4.053 million.

Funding for the project comes from 2015 Revenue Bonds. In a related project, the Board approved a $293,995 contract with RJN Group, Inc., for rehab and replacement of 32,200 linear feet of sewer main ranging from six- to 24-inch in diameter, associated manholes, and other appurtenances. Last week, RJN received a sewer system assessments (SSAs) contract for gravity sewer lines and manholes in the amount of $1.746 million.

And while Forsgren may have lost out on the larger contract Tuesday, it was previously awarded a $2.994 million replacement/rehabilitation project for 23,800 linear feet of sewer main, associated manholes, and other appurtenances.

The sizable expenditures prompted Vice-Mayor Kevin Settle to call for a review of the consent decree now that President Donald Trump has called for a heavy reduction in the size of government. At a previous meeting, Settle said the spending reminded him of Dec. 16, 2014, when the Board signed off on the decree rather than fight it in court.

“In those discussions, I brought up the Waters of the United States (WOTUS) law. It is very broad, and the consent decree is very laced into that. During those discussions, I thought we should have gone to court, where we would have had the chance to make our case and give ourselves more time, just in case the law got changed, which brings me to what happened this past week,” Settle said, referring to President Trump’s signing of an executive order on Feb. 28 instructing a review of the regulation, which was issued during the Obama administration.

Settle reiterated that statement on Tuesday night. When Director George Catsavis asked “when” the city should pursue, Settle said “just as soon as the new definition (of WOTUS) is complete.”

Fort Smith City Administrator Carl Geffken has already started some pushback against the EPA, filing a dispute resolution in late February.

When signing the Feb. 28 order, President Trump called WOTUS “one of the worst examples of federal regulation,” adding the Clean Water Act “says that the EPA can regulate navigable waters, meaning waters that truly affect interstate commerce. But a few years ago, the EPA decided that navigable waters can mean nearly every puddle or every ditch on a farmer’s land or anyplace else that they decide. … It was a massive power grab.”