Lost among the hubbub about the U.S. Supreme Court’s hearings on gay marriage, the appointment of an Emergency Manager for Detroit, and Kwame Kilpatrick being found guilty, yet again, is the fact that after almost 36 years, the Detroit Water and Sewerage Department is no longer under the supervision of a federal judge. On March 27, Judge Sean Cox entered an order closing the 1977 case.
This case started when I was in high school, when Jimmy Carter was president and gasoline was 62 cents a gallon. The EPA alleged that the department was violating the Clean Water Act by allegedly failing to treat sewage enough to meet the department’s permit limits. In short, the EPA alleged that the DSWD was discharging water to the Detroit River that was not sufficiently clean. Over the years, the case took many twists and turns and for every step forward the department took, it seemed there was a step backward.
In September 2011, the court required the appointment of a committee (the Root Cause Committee) to develop and propose a plan to fix the causes of the DWSD’s failure. The Root Cause Committee issued a plan in 2011 that recommended changes regarding DWSD governance, rates, personnel, and procurement practices, which when implemented apparently improved things enough to allow the judge to end the case.
The court ended the case based on its view that significant progress was being made because of: (1) a more empowered Water and Sewerage Board, (2) DWSD having its own functional human resources department, and (3) DWSD having a new and improved procurement policy. That progress was reflected in a 2011 Consent Order and Michigan Department of Environmental Quality’s 2013 issuance of a new permit to operate.
What’s even more interesting is what the judge didn’t do. In addition to the Root Cause Committee’s 2011 plan, it also issued a report earlier in March of this year. The 2013 report proposed dramatic and wholesale changes to the DWSD including the creation of two regional authorities, the leasing of the DWSD between those authorities and the payment to the city of Detroit of at least $50 million in lease payments funded by assessments in lieu of taxes.
The court refused to order the implementation of the Root Cause Report’s recommendations for a variety of reasons (including a nod to doing so impacting the new Emergency Manager’s job) but seemed to agree that the region should get together and discuss these concepts to lead to a system that was more efficient and economically sustainable. It has long been said that the DWSD, by virtue of its regional service, is one of Detroit’s strongest economic assets. Unlike the cultural assets (that have their own values) which the city has regionalized, this one may be a tougher nut without replacing the DWSD’s contribution to Detroit’s operating funds.
Will the “new and improved” DWSD be able to stay on the path to full compliance? Will the new board seek a regional authority including a payment to the city in order to make that happen? How will the new emergency manager factor into this? Only time will tell.