United States of America; State of Arkansas v. City of Fort Smith, Arkansas

United States Court of Appeals
For the Eighth Circuit
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No. 21-2127
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United States of America; State of Arkansas
lllllllllllllllllllllPlaintiffs - Appellees
v.
City of Fort Smith, Arkansas
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Ft. Smith
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Submitted: February 15, 2022
Filed: September 14, 2022
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Before SMITH, Chief Judge, BENTON and KELLY, Circuit Judges.
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SMITH, Chief Judge.
On April 6, 2015, the district court1 entered a Consent Decree between the City
of Fort Smith, Arkansas (the City), and the United States Environmental Protection
1The Honorable P. K. Holmes, III, United States District Judge for the Western
District of Arkansas.

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Agency (EPA) along with the State of Arkansas.2 The Consent Decree imposed
various sewer system improvement requirements on the City over an initial 12-year
period. The Consent Decree sought to bring the City’s sewer system into compliance
with the Clean Water Act of 1972 (CWA), 33 U.S.C. § 1251 et seq., and to prevent
untreated effluent from its sanitary sewers from overflowing into the waters of the
United States and the State of Arkansas. The Consent Decree’s requirements
generally include (1) assessing the condition of the sewer system, (2) identifying
control measures to address certain defects, and (3) developing a plan to ensure
adequate capacity in the sewer system.
The parties eventually entered a dispute resolution process to clear up certain
discrepancies in the respective parties’ interpretation of the Consent Decree’s
requirements. Unable to resolve the dispute by that process, the City filed a motion
for judicial resolution. The district court granted the City’s motion and issued two
orders on March 19, 2021, and April 30, 2021. The City now appeals those two
orders, challenging the court’s ruling that certain severe structural defects had to be
repaired by a date certain. We affirm.
I. Background
The CWA seeks “to restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Section 301 of the CWA
requires any discharge of pollutants to be in compliance with a National Pollutant
Discharge Elimination System (NPDES) permit issued by the EPA or an authorized
state. Id. §§ 1311(a), 1342. Such permits limit the amounts and types of pollutants
that may be discharged and impose certain operating, monitoring, and reporting
requirements. 33 U.S.C. § 1311 (“Effluent limitations”); 40 C.F.R. § 122.41
2The United States and the State of Arkansas are co-appellees. However, since
the State has not submitted briefing, we will refer only to the United States (the
government) when analyzing the parties’ arguments.
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(“Conditions applicable to all permits”); 40 C.F.R. § 122.25(a)(12) (making the
§ 122.41 conditions applicable to state-issued permits). The State of Arkansas is
authorized to issue NPDES permits within its borders. Approval of Arkansas’ NPDES
Program, 51 Fed. Reg. 44,518 (Dec. 10, 1986). The United States may enforce
NPDES permits issued by states through actions for injunctive relief and civil
penalties. 33 U.S.C. § 1319(b), (d).
The Consent Decree states that it “shall have the objective of causing [the City]
to achieve and maintain full compliance with the Decree, the CWA, the regulations
promulgated under the CWA, and [the] City’s NPDES Permits, including the goal of
eliminating all [sanitary sewer overflows or] SSOs.”3 R. Doc. 12, at 9. Pursuant to
these objectives, the Consent Decree imposes several requirements on the City.
First, it requires the City to conduct Sewer System Assessments (SSAs),
whereby the City inspects a portion of its sewer system every year and records any
structural defects of the sewer lines and manholes in the inspected area. The SSA
process is described in Appendix A to the Consent Decree. An SSA also rates the
defects according to a system developed by the National Association of Sewer
Service Companies (NASSCO). The NASSCO condition ratings system grades each
sewer defect on a scale from 1 to 5 in ascending order of severity. A Grade 5 pipe
segment “has failed or will likely fail within the next five years” and “requires
immediate attention.” Id. at 124. Similarly, a Grade 5 manhole is one where “[f]ailure
has already occurred or is likely to occur.” Id. at 126. A Grade 4 pipe segment “has
severe defects with the risk of failure within the next five to ten years,” id. at 124, and
a Grade 4 manhole is one where “[c]racks, deterioration, [and] visible deformities
[are] observed,” id. at 126.
3Sanitary sewer overflow (SSO) is not defined in the CWA. Rather, it is defined
in the Consent Decree as “any spill, release, or diversion of sewage from” the City’s
sewer system. R. Doc. 12, at 18.
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By comparison, pipe segments and manholes assigned Grades 1, 2, and 3 have
less severe defects. A Grade 3 pipe segment is one with “moderate defects” and that
“may continue [to deteriorate], but not for 10 to 20 years,” while Grades 1 and 2 have
“minor defects” and are “unlikely [to fail] in the foreseeable future” or “for at least
20 years,” respectively. Id. at 124–25. With respect to both manhole and pipe defects,
Appendix A further specifies a “[l]ikely [o]utcome” for each Grade: “[r]emedial
[d]esign” for Grades 4 and 5 and “[a]dd into CMOM[4] program” for Grades 1
through 3. Id. at 124, 125, 126.
Second, the City is required to submit an annual Condition Assessment Report
to the Arkansas Department of Energy and the Environment, Division of
Environmental Quality (ADEQ), and to the EPA. This report includes the defects
uncovered in conducting its SSA and their grades according to the NASSCO ratings
system.
Third, the City is required to develop a Remedial Measures Plan (RMP) to
address some of the sewer system defects that it identified in its SSA and graded in
its Condition Assessment Report. The City must then submit each RMP to the EPA
and to the ADEQ for review and approval.
Paragraph 18 of the Consent Decree is entitled “Condition Remedial Measures
from SSA Activities Performed after Date of Lodging”5 and sets forth the RMP
process. Id. at 26 (emphasis omitted). This paragraph reads in part:
4“Capacity, Management, Operations, and Maintenance” or “CMOM” is
defined as “a program of accepted industry practices to properly manage, operate and
maintain sanitary sewer collection, transmission and treatment systems, investigate
capacity-constrained areas of these systems, and respond to SSO events.” Id. at
11–12.
5The date of lodging was January 2, 2015.
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After completing the SSA activities and following the process presented
in Appendix D for the period from the Date of Lodging through
December 31, 2015, and for every Calendar Year thereafter, [the] City
shall develop a Remedial Measures Plan for all Pipe Segments and
manholes discovered through that SSA to be rated 4 or 5 in accordance
with the NASSCO condition rating systems (as set forth in Appendix A),
and/or discovered to have other defects that have caused or significantly
contributed to previous SSOs or that are likely to cause or significantly
contribute to the future occurrence of SSOs.
Id. (emphasis omitted). Appendix D includes a decision tree titled “REMEDIATION
DETERMINATION PROCESS.” Id. at 133–34. The decision tree sets forth a process
for evaluating the relationship between defects and SSOs and for determining how
to address such defects. As relevant here, the decision tree divides sewer line and
manhole defects into two groups: (1) defects connected to known or predicted SSOs
and (2) defects connected with “[v]erified SSOs.” Id. at 134. Of the former group, it
then asks whether such defects will likely cause or contribute to a future SSO. If a
future SSO is likely, then the decision tree routes the defect into a box titled
“Remedial Measure Alternative Analysis” (RMAA). Id. If an SSO is unlikely, then
the defect is assigned to the City’s CMOM program. CMOM consists of a program
of open-ended monitoring and maintenance and acts as an alternative to full
rehabilitation by replacement or repair. The decision tree routes all defects connected
with “[v]erified SSOs” into RMAA. Id.
As described in the Appendix D decision tree, the purpose of RMAA is to
identify “the most practical solution and timeframe for eliminating [the] SSO” caused
by the defect. Id. The RMAA box lists several alternatives to addressing the defects,
including such “[s]olutions and techniques” as point repairs, rehabilitation, and
replacement. Id. One such approach—listed twice in the RMAA box, once in relation
to “Gravity Sewer Mains” and once in relation to “Manholes”—is “Monitoring or
Maintenance Analysis: performed as part of CMOM.” Id. The decision tree further
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instructs that after conducting RMAA, and on the basis thereof, the City should
“[p]repare [the] Remedial Measures Plan.” Id. The solutions and techniques selected
by the City must then be documented in the RMP and submitted to the EPA and the
ADEQ for review and approval.
Paragraph 18 of the Consent Decree further specifies that “[a]ll Remedial
Measures enumerated in each Remedial Measures Plan shall be completed as soon
as technically feasible, but no later than December 31st of the fourth Calendar Year
following the Calendar Year in which the SSA that identified the need for those
Remedial Measures was performed.” Id. at 26. More generally, all remedial work
required by the Consent Decree must be completed “no later than twelve (12) years
after the Date of Lodging,” i.e., no later than January 2, 2027. Id. at 20.
Another relevant provision of the Consent Decree instructs that “[a]ny conflict
between the language in the body of the Consent Decree and the language in an
appendix should be resolved in favor of the language in the body of the Decree.” Id.
at 114.
This case requires us to interpret the Consent Decree. Specifically, it concerns
determining what solutions the City may employ under the RMP for Grades 4 and 5
defects. The City argues that some such defects may be addressed with CMOM in
accordance with the available remediation options given in RMAA. The government
disagrees, arguing that under Paragraph 18 all Grade 4 and 5 defects must be repaired
by a date certain, which would foreclose the possibility of addressing any of them
with CMOM.
The parties brought the dispute to the district court. Upon due consideration,
the district court issued two orders resolving the case. The first order, issued March
19, 2021, identified the sewer/manhole defects that must be included in the City’s
annual RMPs. Following issuance of the decision, the City filed a “Motion Seeking
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Clarification of that Portion on the Court’s Opinion and Order Filed March 19, 2021
Regarding Interpretation of Paragraph 18 of the Consent Decree.” R. Doc. 46, at 1 (all
caps omitted). In an April 30, 2021 order, the court rejected the City’s arguments that
the Consent Decree allowed the City to monitor Grade 4 and 5 defects under its
CMOM plan and held that it must repair them within a four-year timeframe as the
government had argued. In particular, the court concluded that “Paragraph 18 requires
Grade 4 and 5 defects be added to the Remedial Measures Plan, along with lower-
graded defects required by the decision tree in Appendix D.” United States v. City of
Fort Smith, No. 2:14-cv-02266-PKH, 2021 WL 1738881, at *1 (W.D. Ark. Apr. 30,
2021). It accepted the government’s argument that the decision tree did not apply to
defects rated 4 and 5. The court further concluded:
To the extent there is any ambiguity in the terms of the Consent Decree
regarding the treatment of Grade 4 and 5 manholes and sewer lines, the
Court resolves it as follows: all Grade 4 and 5 manholes and sewer lines
must be addressed by remedial measures, which are clearly defined in
the Consent Decree as active measures to “resolv[e] condition
deficiencies and/or capacity deficiencies,” rather than just passively
monitor them.
Id. at *2 (alteration in original) (quoting R. Doc. 12, at 18). And the court
summarized its ruling: “In short, Grade 4 and 5 manholes and gravity sewer
lines—suffering from condition deficiencies by definition—must be repaired or
replaced. This interpretation complies with the Consent Decree and better furthers its
stated objective of ‘eliminating all SSOs.’” Id. (quoting R. Doc. 12, at 9).
II. Discussion
The City appeals the court’s March 19, 2021 and April 30, 2021 orders,
seeking review of one issue addressed in those orders. In particular, it challenges the
court’s conclusion that certain severe structural defects must be repaired by a date
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certain. The City contends that the Consent Decree permits defects to be addressed
with a program of open-ended monitoring and maintenance.
Before addressing the City’s arguments, we must first decide whether we have
jurisdiction to review both orders.
A. Jurisdiction
The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1345 because
the dispute arose under the CWA, 33 U.S.C. §§ 1251 et seq., and the United States
is a plaintiff. Moreover, the Consent Decree provides that the district court retained
jurisdiction to resolve disputes as to its construction. R. Doc. 12, at 110; cf. Picon v.
Morris, 933 F.2d 660, 662 (8th Cir. 1991) (“Ordinarily, a district court retains the
inherent authority to modify or enforce a consent decree. This is true even without a
provision in the decree which provides for continuing jurisdiction.” (citations
omitted)).
A district court’s order interpreting the obligations of parties to a consent
decree is final. United States v. Knote, 29 F.3d 1297, 1299 (8th Cir. 1994). Thus, both
the March 19 and April 30 orders are final and appealable. The City’s notice of
appeal designates only the April 30 order for appeal. R. Doc. 51, at 1. Under Federal
Rule of Appellate Procedure 3(c)(1)(B), a party must “designate the judgment—or the
appealable order—from which the appeal is taken” in the notice of appeal.
Although we liberally construe notices of appeal, we cannot waive the
jurisdictional requirements of Rule 3, and “a notice which manifests an
appeal from a specific district court order or decision precludes an
appellant from challenging an order or decision that he or she failed to
identify in the notice.”
Stephens v. Jessup, 793 F.3d 941, 943 (8th Cir. 2015) (quoting Parkhill v. Minn. Mut.
Life Ins. Co., 286 F.3d 1051, 1058 (8th Cir. 2002)).
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However, even if a notice of appeal is “technically at variance with the letter
of a procedural rule, a court may nonetheless find that the litigant has complied with
the rule if the litigant’s action is the functional equivalent of what the rule requires.”
Torres v. Oakland Scavenger Co., 487 U.S. 312, 316–17 (1988). “The Eighth Circuit
traditionally construes notices of appeal liberally, but the intent to appeal the
judgment in question must be apparent and there must be no prejudice to the adverse
party.” Burgess v. Suzuki Motor Co., 71 F.3d 304, 307 (8th Cir. 1995).
The City’s notice of appeal states that the City appeals the April 30 order,
which denied the City’s “Motion . . . Seeking Clarification of that Portion of the
Court’s Opinion and Order Filed March 19, 2021 Regarding Interpretation of
Paragraph 18 of the Consent Decree.” R. Doc. 51, at 1. Thus, the intent to appeal the
first order, as the City’s brief states, is readily apparent from the notice of appeal.6 See
Appellant’s Br. at 1 (“The City . . . appeals two orders . . . construing the [p]arties’
Consent Decree.”). Further, the government concedes in its opening brief that it
would not be prejudiced by our review of the first order. Appellee’s Br. at 4–5; cf.
Burgess, 71 F.3d at 307 (adverse party must prove prejudice). The City timely
appealed the April 30 order. See Fed. R. App. P. 4(a)(1)(B)(i). Hence, we have
jurisdiction to review both orders.
B. Consent Decree Interpretation
“When, as here, a district court’s interpretation of a consent decree is based
solely on the written document, we review the court’s interpretation de novo.” White
v. Nat’l Football League, 585 F.3d 1129, 1141 (8th Cir. 2009). “Because the content
of a consent decree is generally a product of negotiations between the parties, decrees
are construed for enforcement purposes as contracts.” Id. (cleaned up). Therefore,
“[i]n reviewing a district court’s interpretation of a consent decree, we . . . look to
6This is also evident from the procedural history of the case. See McAninch v.
Traders Nat’l Bank of Kan. City, 779 F.2d 466, 467 n.2 (8th Cir. 1985).
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rules of contract interpretation.” Knote, 29 F.3d at 1299. “[G]uided by principles of
contract interpretation,” we will, “where possible, . . . discern the parties’ intent from
the unambiguous terms of the written consent decree, read as a whole.” Pure Country,
Inc. v. Sigma Chi Fraternity, 312 F.3d 952, 958 (8th Cir. 2002),
“However, even when interpreting the meaning of a consent decree ‘as written,’
we are not to ignore the context in which the parties were operating, nor the
circumstances surrounding the order.” Knote, 29 F.3d at 1300. But where, as here,
“the district court that interpreted the consent decree is the same court that originally
entered the consent decree,” that “inclines us further to adopt the district court’s
interpretation of the . . . Consent Decree.” Sigma Chi, 312 F.3d at 959 (citing Knote,
29 F.3d at 1300).
The City argues that, under Paragraph 18 and Appendix D, it may place certain
Grade 4 and 5 structural defects, which in its assessment have little risk of causing
SSOs in the near future, in its CMOM program and accordingly monitor them for an
open-ended period of time. The City avers that remedial actions undertaken elsewhere
in the system have alleviated the capacity burdens upon certain severe defects.
Therefore, the City argues that some admittedly severe defects are not likely to
contribute to a near-future SSO. The City desires to defer repair of such defects,
allowing it to reduce costs in the near term and to focus its attention on repairing the
most pressing issues with its sewage system. The City argues that the inclusion of
CMOM as an option within RMAA permits the City to delay repair of some of these
defects and simply monitor them indefinitely. If correct, the City’s interpretation
would effectively erase Paragraph 18’s requirement that all such defects be remedied
by a date certain.
The government for its part contends that all Grade 4 or 5 defects must be
repaired within four years of discovery as per the requirements of Paragraph 18. The
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government argues, and the district court found, that the Appendix D decision tree
does not apply to Grade 4 or 5 defects at all but only to Grades 1 to 3.
Nothing in the Consent Decree or in Appendix D explicitly indicates that the
decision tree only applies to defects with Grades 1 to 3 and not to Grades 4 and 5. But
assuming arguendo that it applies to all defects identified in the City’s SSA
irrespective of grade, Appendix D conflicts with Paragraph 18. Paragraph 18 provides
that all Grade 4 and 5 defects must be included in the RMP. It further requires that
“[a]ll Remedial Measures enumerated in each Remedial Measures Plan shall be
completed . . . no later than December 31st of the fourth Calendar Year following the
Calendar Year in which the SSA that identified the need for those Remedial Measures
was performed.” R. Doc. 12, at 26. Requiring completion by a date certain
presupposes that all Remedial Measures can be completed. CMOM consists of open-
ended monitoring and maintenance. On the other hand, Remedial Measures, as the
district court observed, “are clearly defined in the Consent Decree as active measures
to ‘resolv[e] condition deficiencies and/or capacity deficiencies,’ rather than just
passively monitor them.” City of Fort Smith, 2021 WL 1738881, at *2 (alteration in
original) (citing R. Doc. 12, at 18). A conflict therefore exists between the
requirements of Paragraph 18 of the Consent Decree requiring all Remedial Measures
to be completed by a date certain and what Appendix D apparently allows, that some
Remedial Measures may continue past such date.
The Consent Decree provides that “[a]ny conflict between the language in the
body of the Consent Decree and the language in an appendix should be resolved in
favor of the language in the body of the Decree.” R. Doc. 12, at 114. Paragraph 18’s
requirements therefore supersede those of Appendix D. So, even if we accept the
City’s argument that the Appendix D decision tree applies to defects of every grade,
CMOM would still not be a permissible manner of addressing Grade 4 or 5 defects,
all of which must be remedied within four years of the calendar year in which they
were discovered according to Paragraph 18. While we normally aim to avoid
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constructions that render language in an agreement “mere surplusage,” Harris v. The
Epoch Grp. L.C., 357 F.3d 822, 825 (8th Cir. 2004), here, the Consent Decree itself
provides the proper course when confronted with such a prospect, and we must give
effect to its unambiguous terms, see Sigma Chi, 312 F.3d at 958. We affirm the
conclusion of the district court that “[t]he Consent Decree requires the City to resolve
the defects in Grade 4 and 5 manholes and sewer lines, and this cannot be
accomplished solely by monitoring and maintenance analysis.” City of Fort Smith,
2021 WL 1738881, at *2.
III. Conclusion
Accordingly, we affirm the district court.
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