DOJ order details third-party role over Jackson water, feds file new complaint
The U.S. Department of Justice announced Tuesday that it filed the interim proposal for overseeing Jackson's water system, which the city council approved on Nov. 17, making the agreement available to the public.
The parties await a federal court's approval before the agreement, which is set to last a year, takes effect. The DOJ also filed a new complaint against the city for its inability to comply with previous enforcement from the Environmental Protection Agency.
The order names Ted Henifin as Jackson's interim third-party manager. Henifin, a senior fellow at the nonprofit U.S. Water Alliance, managed the Hampton Roads Sanitation District in Virginia Beach from 2006 until 2022, overseeing the city's sewer system.
The goal of the interim agreement, according to the order, is to stabilize Jackson's water system while the city and federal government look at long-term solutions, through litigation or a consent decree.
Henifin's job, as the order lays out, will be to "operate, maintain, and control" the water system in compliance with the Safe Drinking Water Act, as well as to make capital improvements, including specific projects prioritized in the order. The order also gives the third-party team authority over Jackson city employees and contractors to carry out those projects.
The order gives the third-party leadership broader spending authority than what the city would normally have. For instance, under the order, the management team won't have to comply with state laws regulating how a governing body procures contracts. The order writes instead that the third-party team "will use best efforts to have the procurement process be competitive, transparent, and efficient." The order requires that the manager consult with the city attorney over any contracts longer than a year.
The document also gives Henifin and his team power to make rate changes for Jackson water customers.
Within 60 days, Henifin will have to make a funding strategy, which will include a short-, medium- and long-term — over 5 years — spending plan and schedule for the water system. In that plan, Henifin can propose rate changes as well as governing alternatives.
If the plan does include a rate change for customers, the order requires the mayor to put the change before the city council. But even if the city council doesn't approve the rate change, the order gives the third-party manager the authority to change the rates anyway, as long as it's been more than a year since the last rate adjustment. City officials last raised rates in December 2021.
Under the order, the third-party manager does not have the authority to consolidate, or regionalize, Jackson's water system, or allow another governing body to operate the system.
The agreement also stipulates that documents in the third-party manager's possession are not subject to public records laws because it is not a federal, state or local agency. The order does require the manager to make a website to inform the public with status reports, requests for proposals, and quarterly updates.
The federal court, after approving this order, would have authority over how Henifin's team is complying with the agreement to manage Jackson's water system.
The order lists 13 projects as priorities for the management team to facilitate:
- Operations and management contract
- Winterization of both treatment plants
- Corrosion control
- Implement an alternative water source plan
- Distribution system study, analysis and implementation, including replacing water lines, prioritizing any lead lines found
- System stabilization plan, including a sustainable revenue model
- SCADA system improvements, including sensors, actuators
- Assess and repair chemical systems at plants and wells
- Chlorine system improvements at O.B. Curtis
- Intake structure repairs
- Restore redundancy at treatment facilities, including pumps
- Sludge assessment and removal at water storage facilities
- Assess power vulnerability
The agreement gives Henifin's team a $2.98 million budget for a 12-month period. That total includes $400,000 for Henifin's salary, travel and living expenses; $1.1 million for staff pay and expenses; $1.4 million for contractor and consultant support; and $66,000 for other expenses, such as phones, computers, and insurance.
The order states that the budget won't be funded by customers' water bills. The city will pay for the budget with money from the EPA and other grants.
Gov. Tate Reeves applauded the news, saying in a statement that it's "excellent news" that "Mayor (Chokwe Antar Lumumba) will no longer be overseeing the city's water system."
Reeves also announced that he authorized MEMA to commit $240,000 from the state's Disaster Mitigation Fund "as a bridge" to help during the transition of control over the water system.
Read the full order here.
The DOJ also filed a new complaint against Jackson on Tuesday requesting a court-ordered injunction to require the city to comply with federal drinking water laws.
The complaint notes the city's inability to comply with previous enforcement actions issued by the Environmental Protection Agency, including an Administrative Order issued in July, 2021.
The filing details various violations of that order:
- Staffing shortages: in just four months of operation this year, J.H. Fewell didn't have a certified Class A operator in at least 15 instances, according to the complaint.
- Not implementing an alternative water source plan during boil water notices.
- Turbidity in the water.
- Not beginning the process to rehabilitate filters at J.H. Fewell on time.
- Not implementing the city's corrosion control plan at J.H. Fewell.
The complaint also notes that, because of the system's defficiencies, contaminants are either present or likely to enter the system.
"State and local actions have been insufficient to prevent the threat of additional failures," the complaint says. "Such failures are likely to continue to occur, whether under normal working conditions or in extreme weather events."
Read the full complaint here.
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