FORT SMITH -- City directors toyed with letting the government take Fort Smith to court over violations of the Clean Water Act before voting to approve a consent decree to fix and maintain its sewer system.
Directors Kevin Settle and Mike Lorenz voted against a resolution Tuesday authorizing execution of a consent decree with the federal Environmental Protection Agency, the Department of Justice and the state of Arkansas. Other directors said they were reluctant to vote to approve the decree but felt that not approving it would bring worse consequences against Fort Smith citizens.
Director Andre Good said he was voting for the consent decree because not approving it would risk more citizens' tax dollars than necessary.
"I do not like this decision being forced on us," he said.
Under the decree, the city agrees to eliminate sanitary sewer overflows and maintain the sewer collection and treatment system to comply with the act, which the government says the city has been violating for decades. The decree puts the city on a schedule to complete the improvements and provides financial penalties for missing deadlines.
The decree will become effective when the government files the document in U.S. District Court in Fort Smith, City Attorney Jerry Canfield has told directors. He said the government wants to file the decree by the end of the month.
Filing will start the 12-year clock for the city to draw up and implement plans that city staff estimates will cost $480 million over the life of the decree. They say residents' monthly utility bills will triple in annual rate hikes from an average of $40 to $120 to pay for the improvements.
Lorenz said Tuesday he didn't like the fact that the government was forcing the city to take such expensive measures so quickly, even through Fort Smith has spent more than $200 million over the past 10 years to make improvements to the system.
The decree, he said, "puts too much of a burden on citizens too quickly."
After saying he studied the 200-page decree, Settle accused the federal government of overreaching in its demands on the city. He pointed to the requirement that Fort Smith's Utilities Department draw up an inventory system but wondered how that related to the illegal discharge of wastewater into the waters of the United States that the Clean Water Act forbids.
He said he thought the directors were being forced to act too quickly to put this decree into action and wanted more time to study it.
"We are making decisions that affect people for the next 20 to 30 years," he said.
Responding to questions from directors, Canfield said if the city directors allowed the government to take Fort Smith to court, it would not change the city's requirements to repair and maintain the sewer system to comply with the Clean Water Act. But a judge could order the city to make improvements quicker than what is required under the decree.
Also, he said he believed the city could spend an estimated $1.5 million a year in legal fees fighting the government in court but probably would wind up facing the same requirements that are set down in the consent decree.
However, he and City Administrator Ray Gosack said the litigation probably would result in far greater penalties and fines than the city is facing currently.
City officials told directors earlier this month that the government wanted to fine the city $800,000. In Dallas last month, they said, the city's negotiating team persuaded the government to reduce the fine to $500,000 and to allow the city to pay the government $300,000 and use the remaining $200,000 of the fine, plus another $200,000 in local money, to help the city's low-income residents pay for required repairs to their defective sewer service lines.
Canfield said few cities around the country facing problems like Fort Smith's have opted to take the government to court. Those that have, he said, have ended up dropping litigation and signing consent decrees. He knew of no city that has gone to trial with the government over Clean Water Act violations involving sewer systems.
City staff made presentations to the directors earlier this month that show capital costs to make the required improvements to the sewer system could cost $375 million over 12 years. The necessary changes to the city's operations and maintenance of the system could cost an estimated $104 million over the life of the decree.
Most of the operations and maintenance cost will go to enacting a Capacity Management, Operations and Maintenance program.
It will consist of setting up sewer line assessment and cleaning programs, pump station assessment and maintenance, sanitary sewer overflow reporting and response programs, information management system, comprehensive employee training program and inventory management system.
A big part of the program will be implementing a program to rid sewer lines of fats, oils, grease and roots that block pipes and are a major cause of the sanitary sewer overflows the government is wanting the city to eliminate.
The decree also will require homeowners and businesses to repair and maintain at their own cost the sewer service lines that run from the city's main lines to their homes or businesses.
NW News on 12/18/2014