Thursday, July 28, 2011

City of Detroit Petitions Federal Court to End Decades-Long Oversight of DWSD

On July 25, 2011, the City of Detroit petitioned U.S. District Judge Sean Cox to dismiss the federal lawsuit originally filed in 1977 by the U.S. Environmental Protection Agency to remedy violations of the Clean Water Act by the Detroit Water and Sewerage Department.

For the past 34 years, the federal court (Judge John Feikens) has overseen the City of Detroit Water and Sewerage Department (DWSD) and enforced a series of consent judgments designed to bring the Department's waste water treatment plant (WWTP) into compliance with its NPDES discharge permit. 

On July 21, 2011, DWSD and the Michigan Department of Environmental Quality (DEQ) entered into an Administrative Consent Order, which is designed to supersede the Second Amended Consent Judgment entered by the federal court in August, 2000.

In its July 25, 2011 Motion to Dismiss and for Relief from Second Amended Consent Judgment, the City of Detroit requests that Judge Cox dismiss with prejudice the 1977 lawsuit because the Administrative Consent Order will serve the same purpose as the Second Amended Consent Judgment and the DEQ will provide for more appropriate oversight and enforcement: 
"[The Administrative Consent Order] provides a more comprehensive and current structure for addressing the compliance issues that DWSD is facing and for ensuring DWSD's long-term compliance. While the DWSD has made substantial progress under the [Second Amended Consent Judgment], ultimately the SACJ was not sufficient to sustain long-term compliance. The ACO will take DWSD through to full compliance."
No hearing date has been set for the City's motion.

Comment: The City's motion to dismiss the 1977 federal case should not come as a surprise. The City has sought for years to end federal oversight of DWSD. But it took the retirement of Judge Feikens to clear a path to the end of the case.  Shortly after Judge Cox took over the case in November, 2010, he signaled a desire to end the decades-long oversight of DWSD. In February, 2011, Judge Cox disbanded the advisory groups that had grown up around the case. Public opinion favored ending federal oversight.

As part of Mayor Bing's breakthrough agreement with Wayne, Oakland and Macomb Counties, and the February 11, 2011 Stipulated Order that led to a more autonomous Board of Water Commissioners, the Court allowed for any party to seek dismissal of the case upon a showing of substantial compliance with the Second Amended Consent Judgment. 

The City's pending motion represents that DWSD has achieved substantial compliance with the federal consent judgment and that the new Administrative Consent Order with the Michigan DEQ will see it through to full compliance. Time will tell, but now is the time to end 34 years of federal supervision. 

For more about DWSD Update, click here.

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