Federal judge hears arguments on $1.6 billion Miami-Dade sewer-repairs agreement

02/10/2014 8:00 AM

02/10/2014 7:12 PM

A Miami federal judge said Monday he has some concerns about a legal settlement that would require county government to spend $1.6 billion over the next 15 years to fix its dilapidated sewer system.

Chief among them: that the penalties Miami-Dade County would be charged for failing to make the repairs are far too lenient. In some cases, the county, which has a $4.4 billion operating budget this year, would be fined $500 a day.

“These are ridiculous,” U.S. District Judge Federico Moreno said.

An attorney for the federal government said the fines are consistent with penalties imposed in other parts of the country.

The judge cannot rewrite the agreement, known as a consent decree. But since the court will have to oversee the decree’s implementation, he must accept or reject it.

The federal, state and county governments want him to enter it into the record as-is. An environmental group that has challenged the proposal in court wants him to send it back to the negotiating table to make it more stringent.

Moreno listened to about two hours of arguments Monday and said he plans to rule “quickly.”

He seemed reluctant to keep the agreement in limbo to hear more evidence, which he said might not necessarily give him new information, or to force a new round of mediation between the governments and the environmentalists, which failed once before.

Miami-Dade has been negotiating the settlement for the past year and a half, since the U.S. Department of Justice, U.S. Environmental Protection Agency and Florida Department of Environmental Protection sued the county over violations to the federal Clean Water Act.

Biscayne Bay Waterkeeper, a group of environmental activists, has opposed the proposal because the county wouldn’t be required to take into account the effects of climate change in its repairs.

The American Federation of State, County and Municipal Employees Local 121, which represents Miami-Dade water and sewer workers, has also opposed the decree, saying that a failure to maintain the sewer system has hurt working conditions.

Rachael Kamons, a Justice Department attorney, said that while climate change is of paramount importance — “quite possibly the biggest issue facing our generation” — the decree is intended to address specific pollution violations in a 15-year span that would not require sea-level rise modifications.

“It’s not appropriate,” she said. “It’s not necessary [in order] to bring the county into compliance with the Clean Water Act.”

No other consent decree elsewhere in the country has imposed climate-change measures, government lawyers said.

But Paul Schwiep, an attorney for the Waterkeeper group, countered that the sewer system is already vulnerable to climate change, and those weaknesses should be targeted for improvement in the decree.

“They’re telling you that climate impact is real” yet choosing not to include it in the agreement, he said.

Schwiep also said the decree should include a ban on transferring Water and Sewer Department funds collected from user fees to Miami-Dade’s general fund. Past administrations raided the department’s budget, though the current mayor has stopped the practice.

Assistant County Attorney Henry Gillman told the judge the decree requires the county to submit a financial analysis showing how it will pay for the repairs.

Upgrading the entire deteriorated pipe system — and not just the violations identified in the federal lawsuit — would cost Miami-Dade about $12 billion.

Of particular concern to the activists are the three wastewater treatment plants in Goulds, North Miami and Virginia Key that need the bulk of the upgrades — more than $1 billion. Maps drawn up by experts on the group’s behalf last year showed the plants could become islands, with surrounding streets flooded by rising seas, unless the county takes preventive measures.

Water and Sewer Department administrators say they plan to take sea-level rise into account in the design and engineering of the repairs. But nothing — other than direction from county commissioners — would force them to do so.

The county has already made some repairs and begun soliciting bids to hire outside contractors for the project.

But the process has been slow — so slow that John Renfrow, the department director, sent Mayor Carlos Gimenez’s office a strongly worded memo last week cautioning that the delays have “exceeded the most pessimistic projections.”

The county can no longer afford to use in-house staff without an outside project and construction manager, Renfrow wrote. A selection committee chose a firm last month in a re-do of bid rankings requested by the mayor after the first round was marred by controversy.

In a subsequent memo to the county attorney’s office, Renfrow wrote that eight of 39 repairs scheduled to begin by Monday will start late, with the final four getting under way by June 30.

While the deadlines are for the county’s tracking purposes only, they underscore the pressure on Miami-Dade to take up the costly repairs. In addition to fines, the federal government could take over the upgrades if the county fails to make them on its own.

Last year, commissioners authorized issuing $4.25 billion in bonds to pay for the fixes. They also approved the first of several expected fee hikes — rates went up 8 percent — to pay for the bonds.

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