Federal consent decree relief strategies presented to Fort Smith Board

Members of the Fort Smith Board of Directors were told Tuesday (Jan. 28) the city has made a “tremendous commitment” toward fixing sewer system issues mandated by a federal consent decree, but it may be time to ask a federal court for relief.

Paul Calamita, with Richmond, Va.-based AquaLaw, presented to the board during Tuesday’s study session his strategy ideas seeking some measure of relief from a federal mandate that has seen the city spend at least $135 million on sewer system improvements since 2015.

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.

City Administrator Carl Geffken is set to meet Wednesday in Dallas with Region 6 EPA Administrator Ken McQueen to argue the city’s case for consent decree relief. McQueen, appointed Aug. 5, 2019, is a presidential appointee who came to the job from the energy industry. He most recently worked as the New Mexico Cabinet Secretary for the Energy, Minerals, and Natural Resources Depart from 2016 to 2018.

Calamita, who is working with six other cities on consent decree relief, said he is “cautiously optimistic” the city will obtain relief because it has a recent history of “good faith” in meeting obligations of the decree. Based on what he sees with other cities operating under consent decrees, Calamita said Fort Smith has done more than enough to prove a commitment to the consent decree to now seek a “right-size” modification going forward.

“We have a financial mountain ahead of us,” Calamita said. “And we didn’t just look at it and say, ‘Oh my gosh that’s Mt. Everest and I can’t even think about starting to climb it.’ You guys have run up. You have run up to base camp that you thought was the financial summit, and you realize now that ‘No, there’s another peak beyond that that’s going to take us more time to climb, and quite frankly, more resources.'”

There also are examples of how the situation has changed that are part of the case for seeking relief. One example is an initial estimate of $107 million over 12 years for the “find and fix” portion of the consent decree has more than doubled. Also, the early estimate of 27.6% of sewer lines with defects has ballooned to closer to 50%.

Calamita outlined four options he advised the board to consider pursuing. The first is to ask the EPA and DOJ to “declare victory,” provide some relief and turn the enforcement over to the Arkansas Department of Environmental Quality. If that fails, the city should seek “a doubling or a tripling” of time to be able to afford system improvements without creating more of a hardship on water and sewer system customers. The next option is to ask the EPA for more time to implement certain consent decree items; essentially a modification to the existing consent decree.

If those three options fail, Calamita said the city should then take its case to U.S. Western District Judge P.K. Holmes III to ask for modifications. Calamita said Judge Holmes may assign the case to Federal Magistrate Mark Ford to get the sides to mediate. If mediation fails, the case would then come before Judge Holmes.

“I think we will do well in the courts because I think we have a very reasonable position and you have anteed up,” Calamita told the board.

He also said Fort Smith officials and citizens should not fear taking an aggressive approach with the agencies or courts to seek relief.

“We fear nobody,” he said. “Normally, no community wants to dance with the Department of Justice, but when you’re poor and you have a Mt. Everest financial hill to climb, you lose fear pretty quickly.”

While confident the city will be able to find a workable solution with the EPA within the next few months, Calamita said it could take up to 100 days to reach the court option. If mediation fails and the case goes before Judge Holmes, that could take “another three to four months,” which means it could be August or later before a court-required settlement is reached – or not.

A disadvantage in seeking relief is the city’s history prior to 2015 with respect to addressing water and sewer system problems. Calamita said the “poor” history has come up in calls he has had with the EPA about Fort Smith.

“The agency’s view of your history is poor. Their view is of neglect, of state orders that they don’t think the city was all in on and complied with,” Calamita said. “They look at the time it took to negotiate the consent decree, and they put all of that on you, even though the record is very clear that they went away for a few years. … But their view, which they carp on in almost every conversation we have, is that you’re making up for past sins – sins of your parents.”

The city has a $200,000 contract with AquaLaw, and has to date spent $122,627, according to Geffken.