THE WASA LTCP CONSENT DECREE

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THE WASA LTCP CONSENT DECREE

• STRATEGIES EMPLOYED TO ACHIEVE A FAIR AND
  BALANCED LONG TERM CSO CONTROL PLAN
  IMPLEMENTATION MECHANISM FOR THE DISTRICT OF
  COLUMBIA

AVIS MARIE RUSSELL GENERAL COUNSEL DISTRICT OF
COLUMBIA WATER AND SEWER AUTHORITY
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WHAT WERE THE KEY INGREDIENTS?

• A technically sound, economically feasible, and
  legally defensible long -term control plan
• Well-developed legal defenses
• An overall strategy that narrowed the case to the
  issues that WASA was prepared to litigate
• Bottom-line goals and objectives that had to
  be met in the settlement

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WHAT WERE THE KEY INCREDIENTS? (cont)

• Involvement by decision makers and respected
  neutral parties at critical stages in the
  negotiations
• Continued trial preparation throughout the
  negotiations

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WASAS LONG TERMCONTROL PLAN

• Developed in strict accordance with the CSO
  policy following an extensive stakeholder process
  
• Consists of a system of tunnels, pumping
  stations, upgrades to Blue Plains, sewer
  separation, and low impact development
• Provides for incremental CSO reductions during
  implementation with ultimate volume reductions of
  97.5 for the Anacostia, 92.5 for the Potomac,
  and 89.8 for Rock Creek during average year
  rainfall conditions

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WASAS LONG TERM CONTROL PLAN (cont)

• Provides for compliance with water quality
  standards, and, therefore, meets the
  Demonstration Approach under the CSO policy
• Planning level cost estimate - 1.265 million
  (2001 dollars)
• LTCP gave us the confidence to proceed to trial,
  if necessary
• We knew that if the case went to trial, the Court
  would not fashion its own remedy (i.e., its own
  LTCP)

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WASAS LONG TERM CONTROL PLAN (cont)

• Penalties were not a major consideration
• Penalty exposure was minor compared to the
  potential consequences of a bad consent decree.
• WASA had substantial defenses to penalties.

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LEGAL DEFENSES

• WASA was committed to implement its LTCP, and,
  therefore, accepted this as a legal obligation
• But, WASA was not prepared to agree that its CSO
  discharges violated the Clean Water Act or that a
  consent decree was the appropriate LTCP
  implementation mechanism
• WASA developed legal defenses based upon

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LEGAL DEFENSES (cont)

• Clean water act 402 (q)
• D.C. water quality standards
• WASA permit language
• These legal defenses, the LTCP, and our
  commitment to litigate, if necessary, gave us the
  leverage needed to narrow the case for trial and
  ultimately, settle the case on favorable terms

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AGREEMENTS WERE MADE TO NARROW THE CASE AS IT
PROCEEDED TOWARD TRIAL

• Issues that were resolved through partial
  settlement and stipulation
• Partial consent decree resolved nine minimum
  controls issues
• The parties stipulated that the LTCP was the
  appropriate remedy for the alleged violations
• WASA stipulated that is was legally obligated to
  implement the LTCP
• The plaintiffs agreed to waive any claims for
  penalties

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AGREEMENTS WERE MADE TO NARROW THE CASE AS IT
PROCEEDED TOWARD TRIAL (cont)

• Issues that were left for trial
• Whether, subject to post-construction monitoring,
  the LTCP would comply with water quality
  standards following implementation
• The appropriate LTCP implementation schedule

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WASA HAD SEVERAL BOTTOM LINE GOALS AND
OBJECTIVES THAT HAD TO BE MET IN ANY SETTLEMENT

• A written determination from both the District
  and EPA that, subject to post-construction
  monitoring, WASAS LTCP would comply with water
  quality standards following implementation
• An implementation schedule that met the following
  criteria
• Overall schedule that was long enough to avoid
  steep rate increases over the life of the
  schedule.

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WASA HAD SEVERAL BOTTOM LINE GOALS AND
OBJECTIVES THAT HAD TO BE MET IN ANY SETTLEMENT
(cont)

• Phased schedule that addressed the Anacostia
  first, and also
• Minimized increased costs due to excessive
  demands on available management, engineering and
  construction resources.
• Provided opportunities to achieve efficiencies
  and cost savings from lessons learned in earlier
  phases.

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WASA HAD SEVERAL BOTTOM LINE GOALS AND
OBJECTIVES THAT HAD TO BE MET IN ANY SETTLEMENT
(cont)

• Flexibility to modify the LTCP or schedule in
  response to new or unanticipated developments
  that materially changed any of the assumptions
  underlying the LTCP or LTCP schedule
• WASA wanted a 30-year schedule if there was
  little flexibility to modify it, but was prepared
  to compromise on the schedule in return for the
  flexibility to modify both the LTCP and the
  schedule
• Protection against future citizen suits

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INVOLVEMENT BY DECISION MAKERS AND RESPECTED
NEUTRAL PARTIES

• Negotiations ended in the spring of 2004 when DOJ
  and EPA refused to make a standards compliance
  determination, refused to agree to a schedule
  longer than 20 years, and would agree only to
  their standard consent decree modification
  language
• Discovery proceeded through summer of 2004 with
  over 1.5 million pages of documents processed and
  reviewed
• Catalyst to resumed negotiations in September
  2004 was involvement by top DOJ, EPA, DC, and
  WASA officials at the urging of a respected
  member of DCs environmental community

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WASA CONTINUED TRIAL PREPARATION DURING THE
RESUMED NEGOTIATIONS

• Document production, written discovery, and
  preparation of expert reports continued until it
  became apparent that the case would settle
• Depositions were postponed, but not cancelled,
  when there was agreement on a settlement
  framework
• The trial date was retained on the courts docket
  until final agreement on the consent decree

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THE FINAL PRODUCT

• Phase II permit issued containing the water
  quality standards compliance determination and
  performance standards sought by WASA
• Twenty-year phased schedule in consent decree
• Anacostia projects to be completed first, then
  Potomac projects, followed by Rock Creek projects
• Phasing has several benefits
• Most serious water quality problems addressed
  first.

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THE FINAL PRODUCT (cont)

• Allows WASA to benefit from knowledge and
  experience gained in earlier phases and move to
  modify LTCP and schedule, if necessary.
• Accommodates possible modification to Rock
  Creek projects based on experience with LID.
• Avoids over-extending available management,
  engineering and construction resources.
• Only two enforceable interim milestones for each
  project

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THE FINAL PRODUCT (cont)

• Consent decree recites that the 20-year schedule
  is based on current information, assumptions and
  financial and other projections, and permits WASA
  to move for modification of the LTCP or schedule
  based on a significant change in the current
  assumptions or projections, whether or not the
  change was anticipated
• Consent decree incorporates all of the current
  assumptions and projections that are the bases
  for the LTCP and 20-year schedule

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THE FINAL PRODUCT (cont)

• Twenty-year schedule financial assumptions do not
  include projects such as nitrogen control and
  improvements to the collection system that are
  not in the current CIP
• Administrative process for resolving disputes
  over proposed modifications with the following
  two important features
• Imposes deadlines on EPA to act
• Provides for de novo review by court of
  disputes arising out of modification requests

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THE FINAL PRODUCT (cont)

• - Consent decree contains a re-bid clause which
  allows WASA to re-bid construction contracts and
  avoid penalties for failing to meet interim
  deadlines
• Consent Decree contains language designed to help
  ensure that it will be deemed diligent
  prosecution as a defense against future citizen
  suits