Could Environmental Groups Force Water and Sewer Systems Upgrades?

The Chattanooga (TN) Times Free Press reports that the City of Chattanooga will be forced to spend hundred of millions of dollars to upgrade its nearly 130 year old sewer system pursuant to a consent decree entered into with the EPA and DOJ.  What lead to the consent decree should be a warning to any municipality struggling with an aging water and sewer system.

The action that lead to the consent decree began in October 2010 as a private “citizen suit” under the Clean Water Act.  A copy of the complaint can be found here: TCWN v. Chattanooga Complaint.  The Tennessee Clean Water Network, who bills itself as “a citizens environmental organization,” brought the complaint against the City.  According to the complaint, Section 505(a)(1) of the Clean Water Act, authorizes citizens to bring private rights of action to enforce the Act.  In general, the Network claimed that the City’s 130 year old sewer and storm water treatment system was inadequate to treat the amount of sewer and storm water the City generated causing pollution into the local waterways and, therefore, violating the Act.  After initially rejecting the Network’s call to action, EPA and DOJ eventually intervened in the action and no doubt contributed to the breadth of the consent decree.

According to the Times Free Press, the consent decree, which is not yet public, will require the City to:

“to revamp the city’s wastewater treatment plant and hundreds of miles of underground sewer lines and alleviate system failures that have plagued the city for nearly a decade.”

Basically, the consent decree acts as a work order “directing what needs to be done to repair and improve the city’s 130-year old sewer system.”  Municipalities should note that the article mentions that similar agreements have been entered into between the EPA and other municipalities in Tennessee.  Additionally, a quick review of the EPA’s website reveals similar decrees have been entered into between the EPA and other municipalities.  Although, I am unaware if any of those decrees are as broad or costly as the Chattanooga  decree or if any of the decrees resulted from a complaint initiated by a private citizens group.

The cost to comply with the decree are staggering and it will be interesting how the City pays for it absent a massive tax increase.  Most municipalities barely have the finances to simply maintain current aging systems let alone undertake an unplanned wholesale upgrade to a system.  Municipalities should be on notice that if even if they lack the political will to make upgrades to aging water and sewer systems activist environmental groups may force them to make them.

On the flip side, should left-wing environmental groups and un-elected officials at the EPA have the power to enact what amounts to an unfunded mandate and force already cash strapped municipalities to make upgrade to systems which may run afoul of the act?

In the meantime, this may be just another reason for municipalities to stop kicking the can down the lane when it comes to water and sewer system upgrades and face the harsh reality that the upgrades will be made voluntarily or at the barrel of a gun.