Fort Smith city administration draws ‘red line’ over federal consent decree

The city of Fort Smith has drawn a “red line” on the federal consent decree, according to a new statement from City Administrator Carl Geffken, who said the city is finished “raising residents’ sewer rates any higher, and by their own guidelines, the EPA should not force us to.”

Geffken said he delivered that message along with Utility Department Director Jerry Walters and City Attorney Jerry Canfield at an in-person meeting on Friday (Aug. 10) from Environmental Protection Agency (EPA) Region 6 headquarters in Dallas.

The meeting was to discuss city-requested modifications to the 2015-enacted consent decree for years-long violations of the federal Clean Water Act. Also representing the city were Paul Calamita, outside counsel, from Aqualaw; Robert Roddy from Burns & McDonnell, former Interim Utilities Director for the city prior to Walters’ hiring; and John J. Pruss, also from Burns & McDonnell.

Key modifications requested by the city include the following:
• Cap sewer rates at no higher than 1.9% of median household income (MHI) for the remaining term of the decree. The city argues it is a “significant financial commitment that would generate another $100-$156 million between 2019 and 2026 for additional consent decree-mandated projects and activities.”

• End the Consent Decree in 2026, then transfer any further regulatory oversight to the Arkansas Department of Environmental Quality (ADEQ).

• Delay hydraulic modeling, capacity assessment, and capacity remediation until the sewers have been cleaned. Currently, all four actions are required to be undertaken concurrently.

• Stipulated penalties would only be assessed if there is an overflow due to the City’s negligence and not for overflows that are beyond the city’s control. “Ratepayers’ funds should go to pay for fixes, not fines,” the city release stated.

“Our residents have seen their water and sewer bills rise 167% since 2015,” Geffken said in a statement issued Friday. “That’s about 2% of median household income, which EPA’s own affordability guidelines say is the maximum that can be expected of ratepayers. Based on the City’s proposals, $200 to $256 million will be spent over the course of the Consent Decree, 2015 to 2026. The City has spent $100 million from 2015 to date and will spend $100 to $156 million over the next eight years. This is the lion’s share of the work completed by the Consent Decree. Whatever work remains will be more localized sewer improvements which can be more than adequately addressed with ADEQ.”

The city’s news release also expressed hope “the Trump Administration will recognize the significant investments the City has made to address the major issues that triggered the Consent Decree and that the Administration will work with us to ensure that sewer rates remain affordable over the remaining term of the Consent Decree. Finally, consistent with the President’s direction to implement cooperative federalism, we hope that EPA will agree to pass the modest remaining program oversight to ADEQ following our completion of Consent Decree requirements through 2026.”

Talk Business & Politics spoke to Cynthia Fanning, a spokesperson for the Region 6 Dallas office on Friday (Aug. 17). Fanning said there were no minutes or recordings of the “enforcement action” meeting, but said she would respond early next week with answers to two questions: what is the next step forward and what, if any, requests would the EPA be open to? An update to this story will be forthcoming.