Fort Smith Board wants to restart talks with Feds over Clean Water Act issues

The Fort Smith Board of Directors approved a resolution during its regularly scheduled Tuesday (Oct. 7) meeting that expresses a desire to restart negotiations with the United States Department of Justice regarding compliance with the federal Clean Water Act.

The move by the Board comes after the city of Fort Smith was notified by the DoJ of impending litigation against the city prior to a previously planned negotiation session in Dallas two weeks ago. The DoJ is acting as legal representative of the Environmental Protection Agency in the case, which has spanned more than two decades with the city working to eliminate wet weather overflows during storm events.

City Administrator Ray Gosack said the city has made significant progress toward compliance, eliminating four of five overflow problems in the city since 2007 and said in spite of the Justice Department's planned lawsuit, the city would continue with projects aimed at bringing the city into compliance with federal law.

City Attorney Jerry Canfield during a special meeting Oct. 2 notifying the Board of impending legal action that he expected a lawsuit to be filed as soon as Oct. 3, though as of Tuesday's regular meeting, no such action had been filed. According to Canfield, the holdup last week was due to the Arkansas Attorney General's office seeking to speak to Fort Smith Mayor Sandy Sanders about the situation before signing the lawsuit filing.

Gosack said the attorney general's inclusion as a plaintiff in the case regularly occurs when there is federal action taken against a municipality.

"The federal government requires the state of Arkansas to take a position in the case because cities are creatures of the state, so we fall under the authority of the state government. So when the federal government is going to consider litigation against the city, the require the state to be a party to the action," he explained.

Gosack said the state has been involved in negotiations in "nearly all" sessions held between the city and the Department of Justice.

With the AG's office a plaintiff in the case and unable to provide assistance to the city, Gosack said U.S. Sens. John Boozman, R-Ark., and Mark Pryor, D-Ark., were notified Oct. 2 of the impending action of the Justice Department, as was U.S. Rep. Steve Womack, R-Rogers, who represents Fort Smith in Congress.

When asked about assistance from Fort Smith's congressional representatives in the situation, Gosack noted that Boozman has been updated throughout the process of negotiating with the federal government.

"This action started when he was a congressman and he was the first one to notify us about it. So Senator Boozman has had a particular interest in this issue in Fort Smith since it (negotiations) began nearly nine years ago. So I've kept his staff updated periodically as negotiations were proceeding."

Regarding updates for Pryor and Womack, Gosack said, "I haven't with them because they've not had the same interest that Senator Boozman has. Again, Senator Boozman's interest really began nine years ago when he was our congressman and alerted us that we were going to come under enforcement action."

During a visit to Fort Smith Monday (Oct. 6), Womack was asked whether there was any help his office could provide in the situation with Fort Smith and the Justice Department.

"Look, I'm not really commenting on that because I have just learned of the issue this week as the news broke. I've not had real intimate conversations with the city leaders about what DoJ and the city have been negotiating. And I'll just kind of reserve comment on that. Typically, when things get to the lawyers, it kind of ties the hands of members of Congress because of certain ethical considerations, undue influence. None of us want to do that.”

Womack also explained that during the transition from Boozman's holding the 3rd Congressional seat to Womack's swearing in, the topic of Fort Smith's non-compliance with the federal Clean Water Act was never discussed.

"That issue did not surface during the transition when I became the congressman and assumed the role from now-Senator Boozman. So again, it kind of caught me off guard because I was not aware that we had an issue brewing there with DoJ."

Womack said he has "a few questions for the city leaders. I want to get briefed on where they stand and the history behind it before we get too far down in the weeds on commenting."

Canfield told the Board Tuesday that he expects jurisdictional issues regarding who has authority over local water and waste water to arise after litigation is filed and added that he expects the city and the Justice Department to return to the negotiating table within months.

"Our guestimation is that in a matter of months, the parties will turn again to negotiating some method of an agreed plan of going forward. I just think we're going to be in a few months hiatus so far as negotiations are concerned. We as the administration are convinced that it's very important that the city not take a hiatus from continuing to plan to work and that we do keep our focus on the work that needs to be done for there will be a date when we have to explain what we've done in those months."