Federal judge approves ‘almost $800 million’ consent decree

U.S. District Court Judge Timothy Brooks has signed off on the modification of a federal consent decree requiring significant Fort Smith sewer system improvements. Brooks’ approval, granted July 23, is the final formal step with the plan negotiated by city and federal officials.

After decades of failing to adequately maintain the city sewer system, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice executed a consent decree in 2014 with the city that required improvements to the city’s sewer system. The consent decree also followed a 1982 administrative order with which the city did not fully comply.

The modification is the second granted to the city. In May 2020, the EPA and the Arkansas Department of Environmental Quality (ADEQ) agreed with the city that sewer improvement work will be “inordinately expensive” and gave the city another five years from the initial 12-year mandate to complete the work.

The order signed by Brooks notes that the city spent $136 million on consent decree requirements between 2015 and the end of 2024, with full consent decree compliance to cost “almost $800 million through 2038.” Also, the city “currently estimates that the bond proceeds, together with SUT (sales and use tax) revenues remaining after bond payment obligations, will provide sufficient funds to enable the City to complete Consent Decree capital projects and other Consent Decree requirements within the modified Consent Decree term.” (Link here for a PDF of the signed order.)

A key hurdle in obtaining a new modification was a demand by federal officials to guarantee funding for consent decree work through 2038

In May 2022, Fort Smith voters passed a 0.75% sales tax from Jan. 1, 2023, to Dec. 31, 2030, with 83.3% of the revenue going to federal consent decree work on the city’s water and sewer system and 16.7% directed to the police department. Funding for consent decree work to date also has come in part from water and sewer bill increases, which were up 167% between 2015 and 2022.

Fort Smith voters in May 2025 approved by a wide margin a sales tax reallocation plan to provide $360 million over 30 years to fund federally-mandated sewer system work.

The Fort Smith Board of Directors on March 3 approved a modification of the consent decree. Paul Calamita, an attorney with Richmond, Va.-based AquaLaw, said prior to the board vote that the modification provides “a fresh start, a complete reset,” that will give the city the time and flexibility to meet consent decree requirements. Key provisions that benefit the city, according to Calamita, include an 11.5-year extension of the original 15-year deadline that is set to expire Jan. 1, 2027. The proposed plan moves the compliance deadline to June 30, 2038.

Another change gives the city flexibility to schedule mandated work, setting a three-year average for required work instead of mandating a specific annual amount. Also, a 19% sewer rate increase that would have been required after 2031 by the two federal agencies was not included in the proposed modified plan.

Also, the DOJ and EPA agreed in the modified proposal to revise its dispute resolution process to set a time limit — “shot clock” — on the agencies to submit a statement of position should they disagree with a dispute raised by the city. This change prevents the agencies from delaying the city’s ability to take a dispute to court.

The modification also included the city continuing to increase sewer rates by 3.5% each year through 2030.

The city is in the process of hiring an engineering firm to help the city manage the many and complex sewer system projects mandated by the consent decree.

“The City is reviewing the submittals and selecting an engineering firm,” Josh Buchfink, Fort Smith director of communications, said in a statement. “The final selection should be presented to the Board by the end of August.”

Link here for more city information about the consent decree.