2020 Environmental Real Estate IssuesOn September 20, 2018, the United States and the State of Texas (the Governments) sued the City of Houston for alleged violations of the Clean Water Act (CWA) due to the City’s wastewater discharges.  One day after the Governments sued, Bayou City Waterkeeper (BCW) filed a separate “citizen” suit against the City, also alleging CWA violations.  On November 19, 2018, BCW was allowed to intervene in the case filed by the Governments.  On the same day, the City requested dismissal of BCW’s citizen suit.

BCW’s Notice Letter and Citizen Suit
On July 23, 2018, BCW sent a letter to the City giving notice that BCW intended to file a CWA citizen suit due to the City’s ongoing CWA violations.  The CWA requires sixty days’ notice prior to filing a citizen suit and further provides that the citizen suit cannot be brought if a state or the United States has filed suit prior to the end of the sixty-day period and is diligently prosecuting it.  On the 59th day, the Governments filed their suit against the City.

Due to the Governments’ suit filed prior to the end of the sixty-day notice period, the City has requested a dismissal of BCW’s citizen suit.

Governments Sued but also Requested a Stay
Along with the September 20, 2018 suit, the Governments requested an immediate stay of proceedings, to allow the Governments and the City to complete ongoing settlement negotiations.  The judge in the Governments’ case stayed proceedings pending settlement negotiations on September 24, 2018.

Court documents indicate ongoing settlement issues include: 1) development of a sanitary sewer overflow plan; 2) corrective measures to eliminate non-compliant discharges from the City’s wastewater treatment plants; 3) identification of certain “early action projects” to minimize violations; 4) assessment of the City’s wastewater collection and transmission system; 5) analysis of the City’s wet weather flow facilities; 6) development of a capacity management operation and maintenance program; and 7) installation of advanced sewer system monitoring devices.

The next negotiation session is scheduled for December 13-14 in Houston.

Determining BCW’s Ongoing Role
The Governments conceded BCW had a right to intervene but argued the judge should delay enforcing that right, pending settlement negotiations.  On November 19, 2018, the judge allowed BCW to intervene in the case filed by the Governments, effectively rejecting the Governments’ arguments.

While BCW is now a party intervenor in the Governments case, the stay order precludes BCW from conducting discovery.

BCW will probably oppose the request to dismiss its citizen suit, citing the stay as indication the Governments are not diligently prosecuting their suit.  A ruling on the City’s motion to dismiss will be no earlier than December 11, 2018.