Fort Smith weighs four options to ease U.S. decree burden
Requirements in consent agreement over sewer system called too onerous
FORT SMITH — An attorney presented four options Tuesday — including litigation — for the Board of Directors to consider as the city tries to resolve how to meet a series of mandates to repair and upgrade the city’s sewer system.
Paul Calamita, chairman of the Richmond, Va., law firm AquaLaw, updated officials on the city’s renegotiation efforts on a consent decree.
The options are:
■ Getting together with federal agencies and determining, out of the remaining requirements, what makes sense for the city to do through the life of the consent decree, which is the end of 2027.
■ Acquiring more time to complete all the requirements of the consent decree.
■ Taking additional time to implement some revised requirements instead of doing everything in the decree as written.
■ Going to federal court to consider a request for modifications if the agencies will not agree to changes.
“We fear nobody,” Calamita told the board Tuesday. “Normally, no community wants to dance with the Department of Justice, but when you’re poor and you have a Mount Everest financial hill to climb, you lose fear pretty quickly, and quite frankly, if you’re going to have to fund the consent decree on its current terms by the end of 2027, my advice would be make sure you can tell your citizens that you left no stone unturned.”
Fort Smith officials signed a consent decree in 2015 with the U.S. Environmental Protection Agency, the Department of Justice and the state agreeing to make an estimated $480 million in repairs and upgrades to the city’s wastewater system over the course of 12 years to clear up chronic violations of the federal Clean Water Act.
City Administrator Carl Geffken said the city hired Calamita in 2016. In a memo to Geffken, city Utility Director Lance McAvoy said Calamita’s entire practice focuses on working with municipalities that face or are currently under federal consent decrees.
Calamita explained that a federal consent decree is a contract that is enforceable through the federal courts.
In the case of Fort Smith, he said the city “jumped right in, “raising sewer rates in an unprecedented manner.
“I’ve done this 30 years,” Calamita said. “I’ve never seen a community raise their sewer rates 167% after three years [2015-17]. I know of nothing close. … So that was a tremendous commitment by your board and the citizens of Fort Smith to fulfill their consent decree requirements, and you should never lose sight of that commitment.”
Since 2015, Calamita said the city has spent some of the revenue that was raised by increasing sewer rates to fulfill requirements of the consent decree. The city also issued $40 million in wastewater bonds in 2018. Of that amount, $10 million has already been spent, with the remainder to be expended during this year and 2021.
However, Calamita said that despite spending about $135 million, the city has hundreds of millions of dollars more to go in order to meet its obligations. He described this from his perspective as “a financial mountain ahead of us,” that is going to take more time and resources to climb.
“We also have realized that further dollars are precious,” Calamita said. “They’re not going to be as many as we’d like, and so we need to make sure we’re spending them wisely.”
“And so that has caused us to look at the consent decree and say what makes sense, what doesn’t make sense and push back on the agencies on things that don’t make sense, particularly things that other communities similarly situated have not been asked to do, or if they’ve been asked to do them, instead of in 12 years, maybe they got 40.”
The city has been asking the Department of Justice to make changes to the contract since 2016, Calamita said, with the latter consistently responding in the negative. Calamita also proposed a 2% annual sewer rate increase through 2027 to give the city the moral high ground by demonstrating to the agencies that it is still “climbing the hill.”
Geffken said he would be in Dallas today to meet with Ken McQueen, EPA regional administrator for Region 6, about Fort Smith’s consent decree. The EPA website states that Region 6 serves Arkansas, Louisiana, New Mexico, Oklahoma and Texas.