In the last month, the U.S. and Ohio Environmental Protection Agencies, along with the U.S. Department of Justice, entered into consent decrees with two Northeast Ohio communities, mandating cities make modernizing repairs to their sewer systems.
The consent decrees address sewer overflows into Lake Erie and Rocky River in Lakewood, and the Black River in Elyria, and intend to bring both cities sewer systems into compliance with the Clean Water Act.
A consent decree is a judicially enforceable contract for settlement between a regulatory agency, such as the EPA and the Department of Justice, and a regulated entity, like a city or sewer district, environmental attorney Lou McMahon, a partner with McMahon DeGulis in Cleveland, said.
“They’re products of long negotiation between both those cities and [the Department of Justice] to get something that is a very substantial investment by those communities,” he said, “basically renewing their infrastructure for the 21st century, but trying to do so under a schedule that's affordable for the residents who are going to pay for that.”
Consent decrees can be used in a variety of circumstances, including for environmental issues. Wet weather consent decrees are specific to sewer system repairs and are fairly common in the region, McMahon said.
“I think we have something like 100 different communities that have combined sewer overflows,” he said. “I think maybe half of those or more are under consent decrees, at least half of them. A number of those are federal consent decrees, generally larger city cities that are about 50,000 population or more.”
Cities with a population less than 50,000 are still subject to consent decrees enforced by the state, McMahon said.
Combined sewer overflow systems, or CSOs, are common in Northeast Ohio, said Frank Greenland, the director of watershed programs with the Northeast Ohio Regional Sewer District. The NEORSD is bound by a 25-year consent decree to implement its $3 billion Project Clean Lake program. The consent decree took effect in 2011.
CSOs combine sewage and wastewater with stormwater runoff from streets, roofs and driveways into one pipe that carries it to a treatment plant. During heavy rain storms, the systems can overflow, causing sewage and stormwater to spill into Lake Erie and other waterways in the region.
Combined sewer overflows are some of the oldest sewer systems in the country, Greenland said, with many built before World War II. Because of this, they require consistent maintenance, and may lead to state or federal intervention if the amount of sewage entering the waterways falls out of line with requirements set by the Clean Water Act.
“This is not a unique situation,” Greenland said. “Not every community will have a consent decree, but every community is bound to these requirements.”
When outlining requirements for regulated entities to adhere to, consent decrees can vary in specificity, McMahon said.
Lakewood’s consent decree enforces the city’s $85 million Integrated Wet Weather Improvement Plan, which Lakewood City Council approved and began implementing in 2019. During heavy rain storms, the city’s sewer system has dumped untreated sewage and wastewater into Lake Erie and the Rocky River on nearly 2,000 occasions since January 2016, according the document.
The Integrated Wet Weather Improvement Plan, now enforced under the consent decree, highlights overflow points in the city’s sewer system. Though the project will take decades to complete, Mayor Meghan George said the city plans to address the largest overflows first.
“This is the case where we've partnered and worked together and we've explained to the regulators, Lakewood knows what we're doing and they've agreed,” George said. “That's why they've essentially adopted our Integrated Weather Improvement Plan, or IWWIP, into the consent decree.”
Lakewood has addressed two of the largest sewer overflows into the Rocky River, and will next begin working on the third overflow into the river.
In Elyria’s consent decree, the city agreed to implement nearly $250 million in improvements to its sewer system that will increase the amount of wastewater that is treated, and limit the amount that overflows into the Black River. The city must also make repairs to its East Side Relief Sewer and increase the capacity of Elyria’s treatment plant. The project is scheduled to be completed by 2044.
Akron has been under a consent decree since 2009 and is working on completing its own billion-dollar sewer repair project.
Consent decrees can be beneficial to all parties involved, McMahon said, in that they ensure the work will be completed even as leadership changes overtime. The regulated entity has a clear schedule and list of what repairs need to be made, and the regulatory agency has a way to enforce penalties if the work isn’t completed.
Regardless of legal intervention, Greenland said the consent decrees are a good thing, and shows that positive work is being done that will benefit Northeast Ohio’s waterways.
“You don't change stuff overnight. So, I mean, this is a good step,” he said. “There's agreement apparently between them and the federal government and a program is going to move forward, and I think that's good.”
