Federal consent decree ‘something the city just cannot afford’ says Fort Smith city boss

Fort Smith city officials are working on a plan that will put forth an alternative to the consent decree that they can present to federal officials in hopes of seeing some relief in the amount of money the plan is costing the city – money that city officials say they do not have.

Almost 37% of the more than $684.821 million 10-year capital improvement plans for Fort Smith’s water and sewer system presented to the Fort Smith Board of Directors at a study session Tuesday (Oct. 29) is related to federal consent decree requirements, with those requirements estimated to cost $31.42 million in fiscal year 2020.

After years of failing to maintain water and sewer infrastructure to federal standards, the city entered into a federal consent decree with the U.S. Department of Justice and Environmental Protection Agency in late 2014. The consent decree requires the city to make an estimated $480 million worth of sewer upgrades over the course of 12 years. Funding for consent decree work has come in part from water and sewer bill increases, which are up 167% since 2015. Funding for water and sewer work also comes from bonds supported by sales tax revenue and revenue from wholesale water buyers.

Sewer bills now make up approximately 12.4% of the median income of the lower 25% of the population living in Fort Smith, Geffken said at the meeting, noting for many that can be disastrous.

The consent decree was originally put in place to address wet weather sanitary sewer overflow (SSO), said Lance McAvoy, interim Utility Director for the city. The city has shown that based on a two-year six-hour storm, it has addressed 95% of the wet weather SS0s, McAvoy said. However, the city still is still experiencing a high number of dry weather SSOs.

“Right now we can’t throw a lot of money to address those issues, which is ludicrous. … If you’ve got it down to a manageable amount, then you need to look at the next triage that needs to be done. But our hands are tied. As we move forward with negotiations, hopefully, we’ll have some people with common sense,” he said, noting that the city’s plants are discharging at permitted requirements and wet weather SSOs where they should be.

But the amount of money needed for the city to meet all the requirements of the consent decree makes it impossible to fund other necessary projects, McAvoy said.

“We are not able to address some of the safety issues that still make us look bad when you have sewer during the day pouring out,” he said.

Total funding for the combined 10-year plan, included in the budget presented to the board Tuesday, is comprised of three segments: $250.701 million for consent decree work; $234.995 million for non-consent wastewater work; and $199.125 million for non-consent decree water system projects. (Link here for a PDF of details of the proposed water and sewer capital improvement program.)

According to McAvoy, consent decree capital improvement plans are based the existing schedule for completion by 2026, “but does not factor in possible outcomes from the ongoing discussions with DOJ and EPA on modification of the Consent Decree.” Of the 22 consent decree projects in 2020, which have a cost estimate of $31.42 million, only $7.62 million are funded.

City Administrator Carl Geffken said it has been estimated that just to meet the terms of the consent decree could actually cost the city $600 million.

“That is something the city just cannot afford,” Geffken said.

Non-consent decree water projects proposed in the 2020 budget are estimated to cost $30.195 million, with funding determined for only $7.52 million of the work. Non-consent decree sewer-wastewater work in 2020 is estimated to cost $23.294 million, with funding set aside for $2.994 million.

City directors have asked what the city can do to modify the consent decree, so that more funds can be used for projects that will address more immediate problems.

“And say we were to say, ‘Let’s go to court, and let’s fight this out,’ I wouldn’t be willing to do that unless we were going to go to an alternative play book that addresses immediately that we are going to take those monies and put them immediately into the dry weather SSOs,” said Ward 1 Director Keith Lau. “‘(We need to say) government here is our plan. We don’t like your illogical effort. We are going to do what we think is logical.’ That’s the plan I would need.”

Geffken said city officials are working on that plan. The plan will state exactly what the city can afford; what needs to be addressed and what the city has already addressed. That plan, which will include financial information and recommendations, is expected to be completed by the first week of November, Geffken said.

The city’s budget hearing is scheduled to begin at 8:30 a.m., Nov. 22, in the Bartlett Community Room at the Police Department.