The Flint City Council on Sunday asked a federal judge to reconsider an order forcing it to choose a long-term water source, a day before the panel was ordered to decide.
In an emergency motion Sunday, the City Council told U.S. District Judge David Lawson that if the court doesn’t dismiss or reinstate the case, the city would be “forced under duress to decide on a long-term contract” before it had an expert analysis.
“That decision could take away the Council’s vested authority to freely choose a water source,” the filing said.
The decision of a water source for the city, the council says, is “not just a 30-year contract, it is a forever contract.”
The emergency motion comes one day before the council had been ordered on Tuesday by Lawson to choose a water source after it spent more than three months refusing to make a decision. In the ruling Tuesday, Lawson took the City Council to task for failing to move on an agreement in April backed by Flint Mayor Karen Weaver, the state and the Environmental Protection Agency to keep the city on the Detroit water system under a 30-year contract with the Great Lakes Water Authority.
“The failure of leadership, in light of the past crises and manifold warnings related to the Flint water system, is breathtaking,” Lawson wrote.
On Sunday, Weaver said she wanted the council to make a decision.
“We know this is a good recommendation that was put forward,” she said. “We didn’t come to this decision quickly. City Council needs to move forward.”
The suit names the Michigan Department of Environmental Quality as a plaintiff.
Lead contaminated Flint’s water after Gov. Rick Snyder-appointed emergency managers made a temporary switch in April 2014 to the Flint River for city water in preparation for a switch to the regional Karegnondi Water Authority. The state returned to the Detroit area water system in mid-October 2015 and has since used the Great Lakes authority’s treated water on an interim basis.
The Michigan Department of Environmental Quality sued Flint officials in late June, arguing that the Flint council was endangering the public’s health by failing to approve a long-term drinking water source. The council had told Lawson it needed more time to examine the best deal.
In the latest motion, the City Council has asked that if the lawsuit is not dismissed that the court reinstate the case so that an expert, Gary Cline, can analyze three water supply options.
The council asks that once Cline is hired, he be allowed 75 days to complete his analysis, that discovery be kept open and an evidentiary hearing set before the court enters any judgment or permanent injunction.
The filing lays out several points the council said impedes its ability to honor Lawson’s ruling Tuesday or that it disagrees with:
■It says the court lacks jurisdiction to bring a lawsuit under the Safe Drinking Water Act’s “citizen suit provision”; even so, the filing says, “a mandatory 60-day notice” is required and the suit should be dismissed because it failed to satisfy the notice requirements.”
■That the court should allow the council’s expert to complete his analysis before issuing a ruling. The delay in obtaining the analysis stems from the council not having the ability to hire an expert on its own and must process the request through the city’s administrators to “retain an expert and have his or her contract approved.” Further, they ask “whether the Council’s — if he is permitted to be hired and performed the work desired — can propose alternatives to the GLWA Contract.”
■That the insolvency of the city’s water fund is not inevitable.
“... the Court found that Flint is on ‘the inevitable route to insolvency that the (Michigan Department of Environmental Quality) has charted if Flint fails to present a long-term, affordable agreement for safe drinking water,’” and that the “City Council has not pointed to a single ‘development’ that ‘may’ occur between now and next September that would forestall the probably insolvency of Flint’s water fund.”
Rather, the council said it expects collection rates will return from 49 percent to 90 percent “once water users can safely drink tap water without using a filter, and once the cost for the water returns to a legal (and reasonable) level.”
Among the council’s options for a water source are to approve the proposed contract with the Great Lakes authority or choose the Karegnondi authority. The state has said the inactive Flint water plant would need tens of millions of dollars in repairs and updates, which would take three and a half years to complete if Karegnondi were chosen.
The Great Lakes Water Authority has said it is prepared to provide Flint water. The Karegnondi authority has backed the Great Lakes contract.