Houston has a sewage problem. In the last five years, the city has self-reported more than 9,300 instances of untreated sewage overflowing from its sewer systems. The foul, bacteria-laden mixture often ends up in the city’s bayous and other waterways, where it increases the risk of illness for humans who come in contact and has toxic effects on aquatic life.
The leaks, which disproportionately occur in poor and minority communities, are nothing new: In the last 30 years, taxpayers have pumped $3 billion into upgrading Houston’s wastewater infrastructure, according to city officials. In 2005, the city reached an agreement with the Texas Commission on Environmental Quality (TCEQ) to prevent the unauthorized discharge of sewage. As part of the agreement, the city spent $755 million on replacing and upgrading sewer lines over the next decade.
Now, two lawsuits filed against the city of Houston — one by a local environmental group and another by the state and federal government — are seeking a solution. However, some environmental activists and legal experts say the state/federal lawsuit appears to be coming to the city’s aid and may ultimately delay finding a fix to the problem.
On Friday, the Bayou City Waterkeeper, a nonprofit environmental group, filed its lawsuit against the city of Houston, arguing that sewage overflows are “continuous and ongoing,” past changes were inadequate and the city is in violation of the Clean Water Act. The group asked the court to promptly force the city to “correct” its “recurring, unauthorized discharges” of untreated sewage.
“The status quo isn’t working because we’ve had these high numbers of clean water violations for years,” said Kristen Schlemmer, an attorney for Bayou City Waterkeeper. “In order to resolve the problem, something different needs to be done, whether that’s under the close supervision of the court or something else.”
But the day before the Houston nonprofit filed its lawsuit, the Department of Justice (DOJ) and the Texas Attorney General filed their own suit against the city on behalf of the EPA and TCEQ. The agencies claim that the city violated its wastewater permits by discharging pollutants into the state’s rivers and streams. In the filings, which reference a 60-day intent to sue issued in July by the nonprofit group, attorneys for the DOJ and state of Texas request that the court issue a stay of “all litigation activity” for 90 days to allow the EPA, TCEQ and the city “to complete ongoing settlement negotiations.”
“These discussions have stretched over several years because Houston operates one of the largest sewer systems in the nation,” the suit reads. “Recently, the parties resumed negotiations [since Hurricane Harvey] and have continued to make good progress toward an agreement.”
If a court grants the stay, it could delay, or even scuttle, the Bayou City Waterkeeper lawsuit. Schlemmer is wary of the request and worries it might lead to a settlement similar to the city’s 2005 order with TCEQ that didn’t take population growth and climate change into consideration.
“It’s very concerning that their first step after filing [the lawsuit] is asking for a stay,” she said.
Tracy Hester, a professor of environmental law at the University of Houston, concurred that the timing of the government’s lawsuit was “an unusual move.” It “almost certainly reflects a desire by the federal and state governments to retain closer control over the settlement negotiations and eventual consent decree,” Hester told the Observer.
Environmental advocates want an imminent solution: In Houston, 96 of 100 freshwater sites tested had unsafe levels on at least one day in 2017, according to a report released last month by Environment Texas. Nine of the 10 ZIP codes with the highest number of sewage overflows in Houston were in communities that are below the local poverty rate, an analysis from the Houston Chronicle found in 2016.
Schlemmer said she’s hopeful that the Bayou City Waterkeeper’s intervention in the federal lawsuit will dissuade the court from issuing a stay and “make sure that the court understands that we can’t just keep delaying this problem.”