Bound Until Clean Water Act Compliance Do Us Part

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What are the following figures associated with? 

  • Atlanta –  1998-2013: $1.5 billion; 2014-2027: ~$445 million 
  • Cincinnati –  2006-2022: ~$1.5 billion 
  • St. Louis – 2011-2034:  $4.7 billion

Major League Baseball stadium construction/renovation costs?  Nope. These are expenditures made or planned pursuant to wet weather consent decrees and the figures do not even include civil penalties, expenditures made prior to entry of decrees, and the many other necessary O&M costs associated with running a utility.  

For over two decades, publicly owned clean water agencies have faced negotiations and litigation with federal and state governments regarding wet weather and sewage overflow issues. These negotiations generally require utilities to plan for, fund, and make million — and even billion — dollar investments in their wastewater infrastructure. The resulting infrastructure programs from these enforcement actions will often be the most expensive single public infrastructure project investment a municipality ever makes. 

Given the high stakes nature of such negotiations – and the significant economic and environmental impacts they will have on the community – it is in a utility’s best interest to enter them equipped with extensive knowledge about the government’s past practices and agreements with other communities as well as strategies and tools to leverage the best possible agreement. 

I became acutely aware of the enduring nature of the consent decree relationship while working for SD1 of Northern Kentucky. Shortly after entry of the District’s wet weather consent decree in 2007, I realized that negotiations were far from over and the implementation journey had just begun. Rather than a traditional Long-Term Control Plan, SD1 negotiated a first-of-its-kind approach that required submittal of four 5-year interval holistic watershed plans over the life of the decree.  Development of the first plan began in earnest and we soon encountered differences of opinion regarding interpretation of certain key provisions in our decree.  I often referred to NACWA’s original 2003 Wet Weather Consent Decree Handbook that had been originally provided to me when I worked for the Kentucky Environment Cabinet, which regulates municipal clean water agencies (referred to then as “their playbook”). While the Handbook was an incredible resource, SD1 needed to find innovative and cutting-edge examples where utilities were pushing back on the cookie-cutter approach.  SD1 did a great deal of research to find other utilities with whom we could compare notes. I longed for an easier way to gain comprehensive knowledge of the playing field and areas of potential flexibility.  

That easier way has arrived!  NACWA just released two new advocacy resources that will greatly help utilities navigate the wet weather enforcement minefield– the revised Wet Weather Consent Decree Handbook, entitled Wet Weather Consent Decrees: Negotiation Strategies to Maximize Flexibility & Environmental Benefit, and a revamped online Consent Decree e-Library. And, best of all, both are offered free of charge as a benefit of NACWA membership. 

The Handbook includes examination of key provisions from existing municipal wet weather enforcement orders and a number of new sections on the mechanics of wet weather enforcement and how to best leverage tools like integrated planning to negotiate the best enforcement order.  It provides forward-thinking information, analysis, and strategies on wet weather enforcement issues including negotiation, renegotiation, implementation, and modification of wet weather enforcement orders and decrees.

The Consent Decree e-Library website has always offered the most comprehensive online collection of full municipal wet weather consent decree and enforcement orders, but the new site now provides users with tools to search for decrees, including by EPA region, state, or search term. 

Negotiations do not cease once the decree is entered. Implementation requires continuous negotiation with regulators.  Developments like EPA’s embrace of integrated planning principles have provided even greater impetus and opportunity for communities already under a consent decree or enforcement order to seek modification based on changed economic circumstances and better/smarter ways to achieve environmental compliance.  And while many communities initially negotiate around 20 years for completion of consent decree obligations, the reality is that water quality compliance often cannot be affordably achieved within the original timeframe leading to new decrees and modifications extending the contractual relationship with the regulators. NACWA’s new revised Handbook and new e-Library can provide the counseling your utility may need to transform an unbearable union into a fruitful alliance to achieve the objectives of all parties.

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