Feds not providing Fort Smith consent decree relief

The feds aren’t giving the city of Fort Smith a break on the estimated $480 million consent decree despite the impact of historic flooding in 2019 and the ongoing COVID-19 pandemic. The lack of a shelter-in-place order by Gov. Asa Hutchinson didn’t help the city’s case.

City Administrator Carl Geffken told the Fort Smith Board of Directors at the regular meeting Tuesday night (April 21) that the U.S. Environmental Protection Agency and the U.S. Department of Justice decided to not provide the city consent decree relief.

After years of failing to maintain water and sewer infrastructure to federal standards, the city entered into a federal consent decree with the EPA and DOJ 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 Director Lavon Morton on Tuesday asked Geffken if the city would get any relief on the timing of the consent decree because of the two major events beyond the control of the city in the past 12 months. Geffken said, no.

“We have put in the force majeure letter saying that the flood and COVID-19 is beyond our control. … We have been told that since the governor of Arkansas, Gov. (Asa) Hutchinson, did not declare a shelter in place that we are not eligible to receive any break,” Geffken said.

Morton was clear he is not happy with the federal decision.

“I’m sure all the other directors and the citizens of Fort Smith agree with me that it is absolutely shocking that we could go through the flood and COVID-19 and that a federal agency would not give us more time because you know we have lost a significant amount of time as a result of those two events,” Morton said Tuesday night.

The city’s attorney Jerry Canfield and Paul Calamita, with Richmond, Va.-based AquaLaw, with which the city has a contract for work specifically dedicated to the consent decree, filed a motion with the federal court in Fort Smith for a status conference, Geffken said. The attorney general’s office and the U.S. Department of Justice recommended to Federal District Judge P.K. Holmes III that the conference not be granted, Geffken said.

“Granted it is not in the language of the consent decree, but since we have been working on this for three and a half years and presented more information than any other city that our attorney, Paul Calamita, has provided in his 28 years of service, and given the push with the current administration to right-size regulations, we have not been one to have been the recipient of that goal of the current federal administration,” Geffken said. “This is yet another area where we are not receiving any assistance despite paying close to $350 million since before the consent decree (on the issue.)”

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.)”

Calamita told Fort Smith city directors during a Jan. 28 presentation 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.