2020 Environmental Real Estate IssuesAt a status conference in federal court on February 22, 2019, the United States, the State of Texas, and the City of Houston told the judge a comprehensive consent order has been agreed, except for the amount of fine the City will pay, in a Clean Water Act (CWA) enforcement case.  The governmental parties indicated they expect to reach agreement on the fine amount within two weeks.  Bayou City Waterkeeper is an intervenor in the case.

Federal, State Enforcement Action to Head Off Citizen Suit
The case stems from alleged CWA violations due to discharges from the City’s wastewater treatment and collection systems.  The United States and the State of Texas filed their suit fifty-nine days after Bayou City Waterkeeper sent a notice letter that it intended to file a CWA citizen suit against the City due to these violations.  The CWA requires sixty days’ notice prior to filing a citizen suit and further provides 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. (See these prior Alerts: Environmental Group Serves City of Houston with Intent to Sue Over Sewage Discharges; Environmental Group Allowed to Intervene in CWA Enforcement Case Against City of Houston)

Negotiations Need Not Include Bayou City Waterkeeper
At the status conference, the judge allowed the governmental parties to negotiate the fine without involving Bayou City Waterkeeper.  The intervenor had acknowledged it has nothing to contribute regarding the fine amount.

Separate Citizen Suit Still Pending
Bayou City Waterkeeper’s separate case is still pending; the judge in that case has yet to rule on the City’s request to dismiss it.  The City has also requested a stay of discovery in the separate case, claiming the settlement with the United States and the State of Texas is imminent.  In support of the stay, which Bayou City Waterkeeper opposes, the City argues Bayou City Waterkeeper’s claims are derivative of the claims of the United States, so that a resolution with the United States will also resolve the claims in the separate case.

Settlements Involving Governments Are Never Final until Formal Approval
The judge’s status conference minutes state the governmental parties represented the settlement as “fully agreed” except for the amount of fine.  However, less than three weeks before the conference, lawyers for the governmental parties reminded the Court that any final written settlement was subject to approval of Houston’s Mayor and governing body, as well as appropriate officials of the United States and the State of Texas.