29 March 2013

Editorial: Judge's leadership moved Detroit Water and Sewerage Department out of federal control

Story originally appeared on Freep.

The problems at the Detroit Water and Sewerage Department were never a mystery.

In 1977, when the U.S. Environmental Protection Agency’s first alleged that the department’s Wastewater Treatment Plant was discharging unlawful amounts of “effluent,” no one disputed its claims; the department readily acknowledged the EPA’s finding that the plant had too few workers, trained those it did hire inadequately, and purchased critical equipment and supplies too slowly.

DWSD and the federal government settled the lawsuit with a consent decree designed to remedy the flaws in the system and bring the department into compliance with federal sewage treatment standards.

But that didn’t happen. The problems documented in the EPA lawsuit — and in six reports commissioned during the tenure of U.S. District Judge John Feikens, who oversaw the case from its inception until his 2010 retirement — weren’t fixable within the parameters of the Detroit City Charter and local ordinances.

This week U.S. District Judge Sean Cox, to whom the case was assigned after Feikens left the bench, declared the system largely in compliance with state and federal guidelines, and — more crucially — that it is expected to remain in compliance, because of changes to the way DWSD is run.

From the time Cox took up the consent decree, he made it clear that DWSD would not be his life’s work. (Feikens, in contrast, earned the nickname “sludge judge” for his lengthy oversight of the department.)

Feikens tried to make the system work more efficiently with “non-intrusive” measures, Cox wrote, including appointing successive mayors of Detroit “special administrators” of the water system, but he was ultimately unsuccessful.

(It’s worth noting that during Feikens’ oversight of the department, consultants were paid $4.4 million between 2002 and 2010, according to Oakland County court filings, and that one firm paid to vet DWSD contracts apparently was unable to identify the wide-ranging bid-rigging scheme of which former Detroit Mayor Kwame Kilpatrick and crony Bobby Ferguson were recently convicted.)

After the case landed on Cox’s docket, the judge ordered the city and the Board of Water Commissioners to develop recommendations to address the “root causes” of the system’s inability to operate within federal and state guidelines; in developing this report, Cox ordered, the city and the water commissioners need not be constrained by the Detroit City Charter, ordinances or any existing contracts.

And this, it seems, was the tipping point.

Three years later, DWSD has its own human resources department, and its purchasing is controlled by the Michigan Department of Environmental Quality. The system has had a permanent director since 2012, a post that had been vacant since 2008, and has a COO/Chief Compliance Officer.

While Cox freed the committee from the confines of the charter, ordinances and contracts, he also cautioned that changes that would override state or local laws should be “narrowly tailored,” and implemented only when local solutions don’t work.

As of Wednesday, Cox, at least, was satisfied that working outside the system had been the key to creating the ability for the system to reach, and sustain, compliance with federal requirements.

It’s an instructive model for the city of Detroit.

Much like DWSD, Detroit’s problems aren’t mysterious, documented in report after report: Too much debt, too much bureaucracy, outdated systems, a charter that makes streamlining all but impossible. Working within that system makes it difficult to effect permanent change. But like DWSD, the city now has an appointed official, in Emergency Manager Kevyn Orr, who is empowered to go outside local law to make necessary changes.

As evidenced by Cox’s ruling, the application of non-traditional solutions, when used judiciously, can bring about positive change.

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