How a citizen lawsuit forced the city into a 22-year, half-billion-dollar sewer overhaul
Filed by
U.S. EPA + Commonwealth of Kentucky
Violation
Clean Water Act
Signed
February 19, 2008
Original Deadline
December 31, 2026
Extended Deadline
December 31, 2030
Total Projected Cost
~$460M capital / ~$590M total
Spent (as of July 2024)
$374.5 million
Share of City Budget
22%
What Broke: The Two Sewer Systems
Lexington has two separate underground sewer systems that are supposed to stay separate:
Sanitary Sewer System
Carries wastewater from homes, businesses, and industrial sites to treatment plants. This is the water from your toilet, sink, shower, and dishwasher.
Storm Sewer System
Carries rainwater and surface runoff directly to local creeks and streams. This water is not treated — it goes straight into waterways.
The problem: For decades, the two systems had nine known interconnections — places where sanitary sewage (human waste) mixed with stormwater. During heavy rain, combined flow overwhelmed the system, causing millions of gallons of untreated raw sewage to spill directly into Lexington's creeks and streams.
Sanitary Sewer────┐├──9 interconnections──OVERFLOW during rainStorm Sewer────┘│▼Raw sewage into Town Branch, Hickman Creek,Elkhorn Creek, Cane Run, Wolf Run, Blue Springs Branch
These events are called Sanitary Sewer Overflows (SSOs). The Remedial Measures Plan ultimately identified 117 locations with recurring overflows across Fayette County.
How It Happened
The consent decree was not triggered by the EPA acting on its own. Citizens forced it.
Pre-2005Citizens
The Fayette County Neighborhood Council and environmental activists push for years about sewer overflows. The city, state, and EPA all know. Nothing moves fast enough.
~2005CitizensTHREATENED LAWSUIT
Concerned citizens threaten to sue the City of Lexington under the Clean Water Act if the EPA does not act.
Why this matters: Under the Clean Water Act, citizens have standing to sue polluters directly. The threat of a citizen-initiated lawsuit forced the EPA's hand.
Aug 2005EPA
EPA requests information from Lexington about its sewer systems.
~2006EPA
Show cause hearing held.
Nov 2006EPA + KentuckyLAWSUIT FILED
EPA and the Commonwealth of Kentucky file a Clean Water Act lawsuit against LFUCG.
Feb 19, 2008Mayor NewberryUNPRECEDENTED
Mayor delivers first-ever televised address from the Mayor's office. Council approves consent decree that afternoon.
"This evening is the first time a Mayor has addressed Lexington citizens from this office. I'm taking this unusual step because of the magnitude of the agreement."
Mayor Jim Newberry, February 19, 2008 (Clip 388)
"We must acknowledge that your Lexington-Fayette Urban County Government has failed to comply with the Clean Water Act. While I have no reason to believe anyone set out to intentionally harm the environment, many decisions have been made over the years which have resulted in our having sewer systems" that violated federal law.
Mayor Jim Newberry, February 19, 2008
The consent decree document was more than 1,900 pages long.
What the Decree Requires
Requirement
What It Means
Duration
Remedial Measures Plan (RMP)
Identify, evaluate, and fix all 117 recurring SSOs. The core engineering work.
Deadline: Dec 2030 (extended from 2026)
Eliminate 9 Interconnections
Physically separate the sanitary and storm sewer systems at all known crossing points.
Largely complete
Capacity Assurance Program (CAP)
Certify adequate sewer capacity before authorizing any new development connections. Changed how the city approves growth.
Establish a dedicated stormwater management fee within 2 years.
Established
Supplemental Environmental Projects
$2.73M in environmental projects (in lieu of higher fines). Cane Run restoration, green infrastructure, flooding assessments.
Completed / released 2021
Close Blue Sky Parkway Plant
Close a satellite sewer treatment plant and integrate flow into main system.
Complete
Flooding Improvements
$30 million for flooding assessments and improvements.
Complete
The Cost
How Estimates Grew Over Time
When
Source
Estimate
Mar 2008
DOJ Announcement
$290 million
2011
10-Year Financial Model
~$400 million
2014
RMP Contractual Projection
$426,372,400
Dec 2024
Current Projection
$460,456,990
Overall
Total mandate (CivicLex)
~$590 million
Why the gap? The $290M was a capital cost estimate for the Remedial Measures Plan only. The $590M total includes stormwater obligations, supplemental projects, CMOM operational costs, bond interest, and program management over 22+ years. The capital-only projection of $460M is actually trending below the 2014 estimate, but cost escalation risks remain.
Penalties & Fine Negotiation
Original Fine Proposed
~$4.5M
What the EPA initially sought
Negotiated Fine
$425,000
Reduced in exchange for Supplemental Environmental Projects
SEP Investment
$2.73M
Cane Run restoration, green infrastructure, flooding assessments
Grant Funds Secured
$37.8M
Kentucky Cleaner Water Program, across 9 projects
Rate Impact on Residents
"I regret that we will be unable to phase the increase in over time, but it is urgent that the work begin immediately, both to maintain our public health and safety, and to comply with the schedule set forth in the Consent Decree."
Mayor Jim Newberry, February 19, 2008
Year
Action
Impact
2008
Sewer fee increase
+48%
2009
Sewer fee increase
+30%
2010+
Annual CPI adjustment
Ongoing inflation-tied increases
2015-16
Bond interest coverage
Additional increases for $48M in bonds
Cumulative
Total rate increase since 2008
~80%+
The burden: The cost of decades of deferred maintenance landed on ratepayers in two years. Sewer fee increases were voted on just two days after the Mayor's televised address. Environmental/energy costs now represent 22% of the city's annual budget. Community Development Block Grant funding was diverted from neighborhood projects to sewer repairs.
The 117 Projects
The Remedial Measures Plan identified 117 locations with recurring sanitary sewer overflows. Each requires engineering study, design, easement acquisition, construction, and verification.
Project Status (December 2024)
Category
Total
Complete
Active
Pending
Collection & Conveyance
80
53
16
11
Treatment Plants
37
23
8
6
TOTAL
117
76
24
17
Capital Projects: 65% Complete
76 of 117
SSOs Abated: 74% (86 of 117)
86 of 117
Target: 90% of SSOs abated by December 2026
105 needed by Dec 2026
Major Active Projects (December 2024)
Project
Cost
Notes
East Hickman Force Main
$20.2M
6.5 miles of 36" pipe, rerouted around Overbrook Farm
Armstrong Mill Trunk
$12.0M
Bid price
Delong Road Pump Station
$9.5M
Grant funded; designed to look like a barn
Wolf Run Trunk F
$6.3M
West Hickman Wet Weather Storage
$15.8M
18 MG tank added to existing 22 MG tank (KIA loan)
The Overbrook Farm Detour
The original RMP planned to route the East Hickman sanitary sewer through Overbrook Farm, one of Lexington's historic horse farms. When it became clear that mixing heavy construction with a working horse farm was unrealistic, the Division of Water Quality rerouted the project around the farm.
The detour required 6.5 miles of 36-inch-diameter pipe, re-aligned into six separate RMP projects. It actually saved $3 million versus the original route.
The Delong Road Pump Station was designed to look like a barn for aesthetic compatibility with the surrounding horse country.
A detail that could only happen in Lexington.
Progress Dashboard
Financial Status (as of July 2024)
Total Projected Expenses
$460M
Current capital cost projection
Actual Expenses to Date
$374.5M
81% of projected total spent
Remaining
~$86M
Hardest, most expensive projects still ahead
Trending vs. 2014 Projection
Below
But cost escalation risks remain
"The total project cost is trending below, but I do worry about cost escalation."
Charlie Martin, Director of Water Quality, December 2024
"Fifteen plus years later, we've turned most of those dots from red to green, green meaning that's good. We still have some pockets."
Charlie Martin, Stormwater Advisory Committee, December 6, 2024
Full Timeline
Pre-2005DECADES
Deferred sewer maintenance accumulates. Millions of gallons of raw sewage overflow into creeks during storms. Citizens push for action.
Aug 2005EPA
EPA requests information after citizens threaten to sue.
Second sewer fee increase: +30%. Future increases tied to CPI.
Jan 2011Court
Consent decree formally finalized with the court.
Aug 2011Council
Special Committee of the Whole: 10-year financial model and RMP capital improvement plan presented.
2013Planning
Capacity Assurance Program (CAP) adopted. Planning Commission amends Land Subdivision Regulations to require sewer capacity certification.
2021EPARELEASED
Stormwater and supplemental project obligations completed and released by EPA.
2022Construction
West Hickman Wet Weather Storage: 18 MG tank added ($15.8M KIA loan). ~80% of projects complete, but pandemic disrupting timelines.
Sep 2024EPAEXTENSION
Schedule modification approved: deadline extended from 12/31/2026 to 12/31/2030. Scope expanded. Reporting reduced from quarterly to semi-annual.
Dec 2024Water Quality
76 of 117 projects complete. 86 of 117 SSOs abated. $374.5M spent of $460M projected.
Dec 2026TARGET
90% of recurring SSOs to be abated (amended schedule milestone).
Dec 2030DEADLINE
Full compliance with all RMP requirements. CMOM obligations continue indefinitely after.
Impact on Development: The Capacity Assurance Program
Capacity Assurance Program (CAP)
Before the consent decree, the city did not have to certify sewer capacity before approving new development connections. Now it does. Every new subdivision, building, or sewer connection must be evaluated against the existing system's capacity.
The CAP was adopted into the Land Subdivision Regulations through the Planning Commission in 2013 and has been reviewed and audited periodically since.
Why this matters for growth: The CAP directly affects where and how fast Lexington can develop. A developer cannot build in an area where sewer capacity is inadequate until the city fixes the system. This has been a recurring friction point in Urban Service Boundary expansion debates and infill development discussions.
The Parallel Crisis: Water Mains from the 1880s
At the same Stormwater Advisory Committee meeting where Charlie Martin discussed sewer progress (June 2022), Kentucky American Water presented a parallel infrastructure crisis.
Oldest Mains
1880s
Cast-iron water mains still in the system
Share of Breaks
60%+
Cast-iron mains cause most breaks but are only ~15% of mileage
Replacement at Current Pace
377 years
To replace the entire system
QIP Target
25 years
Accelerated replacement via monthly surcharge
The result: In some Lexington neighborhoods, both the water mains and the sewer lines are being replaced simultaneously. Residents experience years of orange cones, torn-up streets, and rising utility bills as the city rebuilds underground infrastructure that was neglected for generations.
Key People
Person
Role
Significance
Mayor Jim Newberry
Mayor (2008)
Delivered unprecedented televised address. Pushed through sewer fee increases.
Charlie Martin, P.E.
Director, Division of Water Quality
Career LFUCG employee. Led technical implementation from 2008 to present. The "red dots to green" map.
Commissioner Taylor
EQPW Commissioner
Assigned overall responsibility for consent decree implementation.
Nancy Albright
Commissioner, EQPW (current)
Current-era oversight of consent decree projects.
Citizen activists
Fayette County Neighborhood Council
Threatened to sue the city under the Clean Water Act, triggering EPA action.
Tetra Tech, Inc.
Program management contractor
Annual program management for consent decree implementation and MS4 compliance.