Fort Smith extends agreement with law firm in effort to amend federal consent decree

The Fort Smith Board of Directors approved a resolution at its regular board meeting Tuesday (March 17) authorizing an agreement with AquaLaw in the amount of $100,000 as part of the city’s effort to renegotiate a federal consent decree.

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.

In August 2016, Richmond, Va.-based AquaLaw was hired to aid the city with consent decree renegotiations with the Department of Justice (DOJ), the United States Environmental Protection Agency (EPA), Arkansas Attorney General (AAG), and Arkansas Division of Environmental Quality (ADEQ). At that time the board agreed to pay the firm $100,000.

“That money has now run out,” said Lance McAvoy, Fort Smith director of utilities.

AquaLaw was chosen in 2016 because their entire practice is built on consent decrees and their high success rate in helping cities much like Fort Smith navigate the legal system, McAvoy said in requesting approval of a resolution to continue funding for AquaLaw’s assistance.

“AquaLaw has been instrumental in dealing with DOJ and EPA. Paul Calamita’s, chairman of AquaLaw, advice in how to work with ADEQ and if needed, AAG, has allowed staff to focus more on the day-today operations while being effective in meeting the needs set forth by the Consent Decree,” McAvoy said in the memo.

McAvoy noted that the previous $100,000 was spent over a number of years and this new agreement of $100,000 should carry the city far in negotiations for relief from the consent decree. Fort Smith City Attorney Jerry Canfield told the board that in the event the matter did go to court, $100,000 would go “pretty quickly.”

Fort Smith City Administrator Carl Geffken met Jan. 29 with Region 6 EPA Administrator Ken McQueen in Dallas to argue the city’s case for federal consent decree relief. Geffken said that meeting, in which he pled the city’s case, “went well” and McQueen “seemed sympathetic” to the city’s situation. In arguments for relief, Geffken referenced that Fort Smith has a 25% poverty rate and 25% of the children in Fort Smith schools suffer food insecurity.

“Our median household income is not $40,000, or we have not seen results of that. If it is that, it would be a 9.5% jump in one year,” Geffken said. “We are at or near 2% guideline level set by the government (regarding the amount of the medium income that can be dedicated to water and sewer bills.)”

Geffken said Tuesday night he had not heard from the EPA since his meeting in January. He said Calamita had reached out to the EPA, but he also has not received a response.

“But courts are closing everywhere right now (because of COVID-19 concerns). Even if we asked for a meeting, it would probably be July before we could get one,” Geffken said.

Calamita told Fort Smith city directors during a presentation Jan. 28 that the city has made a “tremendous commitment” toward fixing sewer system issues mandated by a federal consent decree and it may be time to ask a federal court for relief. The city has spent at least $135 million on sewer system improvements since 2015 because of the federal mandate.