Arkansas AG working to avoid federal lawsuit against Fort Smith

A lawsuit expected to be filed earlier this month by the Department of Justice against the city of Fort Smith over Clean Water Act violations has not yet been filed thanks to an effort by Arkansas Attorney General Dustin McDaniel to resolve the issue outside the court.

On Oct. 2, Fort Smith officials held a press conference to announce the sudden end of negotiations between the city and the federal Environmental Protection Agency and the Department of Justice. City officials were notified Sept. 24 by the DOJ that negotiations were over and they were “considering” a lawsuit.

Negotiations, which have lasted more than eight years, center on the city’s wet weather water and sewer system. The city was placed under an administrative order in 1993 for violations of the federal Clean Water Act. Since that time, city officials say they have invested more than $201.2 million improving the city's wet weather system, and another $150 million or more could be poured into improvements before the city atones for violations of the federal Clean Water Act – bringing the grand total for compliance with the law to $351.2 million.

Federal legal action would likely have required McDaniel to sign on as a plaintiff against the city.

Aaron Sadler, spokesman for McDaniel, confirmed Oct. 10 that the AG is working to avoid litigation.

“The Attorney General's Office is working closely with all parties to attempt to resolve this matter. Because of the sensitivity of the issue, the AG doesn't have any comment,” Sadler noted.

Fort Smith officials also declined on Oct. 13 to comment on why nothing has been filed on a lawsuit they expected to be filed earlier this month.

On Tuesday (Oct. 14), Sadler said McDaniel is hoping to “bring the parties back to the negotiating table,” and there is no timeline on the process.

Gosack said in early October that the lawsuit would likely be the result of federal officials wanting the city to do more work in a shorter time period.

"We think the federal government was concerned on a couple of points. One is the amount of work that was going to be done by the city of Fort Smith. And our concern was the affordability issue and the community's ability to pay."

The city has said more than 70% of the chronic problems have been addressed and only nine wet weather issues were noted in the previous year. The city also said it has reduced overflows during wet weather situations by 79% from 2007 to 2013.

To pay for more necessary work, the city has said it may have to raise rates on more than 30,500 sewer customers, with those increases possible in 2015.