By Mike Morris – Chron.com
Federal and state authorities sued the city of Houston over its long-running struggle to limit sewage spills on Friday, marking the beginning of the end of a years-long negotiation that could force the city to invest billions to upgrade its sprawling treatment system.
Houston’s “failure to properly operate and maintain” its 6,700 miles of sewer pipes, nearly 400 lift stations and 40 treatment plants caused thousands of “unpermitted and illegal discharges of pollutants” due to broken or blocked pipes dating back to 2005, the suit states. The city also recorded numerous incidents when its sewer plants released water with higher than allowable concentrations of waste into area waterways, the filing states.
The lawsuit by the Department of Justice on behalf of the Environmental Protection Agency and the Texas Commission on Environmental Quality wants a judge to force Houston to comply with the Clean Water Act and Texas Water Code — typical orders include upgrading pipes, ramping up maintenance and educating the public on how to avoid clogging city pipes — and to assess civil penalties that could reach $53,000 per day, depending on when each violation occurred.
As recently as two years ago, the city’s negotiations with the EPA and the Department of Justice had carried a projected $5 billion price tag, though it remains unclear how quickly Houston would be forced to make the mandated investments, and how sharply residents’ water bills could be expected to rise as a result.
Regulators also filed a motion Friday to pause the proceedings for 90 days with the aim of negotiating a settlement with the city. The “highly technical” talks had progressed well prior to Hurricane Harvey, the filing states, but were only recently resumed after a post-storm hiatus.
“The parties have consulted and believe that it would be in the best interest of each party, in the public’s interest and consistent with judicial economy, to focus on continuing and completing settlement negotiations for a short period without any competing challenges associated with litigation,” the filing states.
The filing was spurred by the intervention of a local nonprofit, Bayou City Waterkeeper, which announced in July that it planned to sue the city over the same violations and which filed its own lawsuit on Friday mirroring the EPA’s claims. It states that the city has reported more than 9,300 sewer spills in the last five years alone.
“The city’s unauthorized discharges have had a detrimental effect on, and pose an ongoing threat to, water quality and public health in the Houston area and have caused significant damage to the waters that Waterkeeper’s members use and enjoy,” the nonprofit’s filing states.
Waterkeeper’s July announcement was required by the Clean Water Act, which mandates that citizens or citizen groups planning to sue under the law give 60 days’ notice, in part to allow the EPA or its state counterparts to take their own actions.
If the EPA “has commenced and is diligently prosecuting” its own lawsuit, a Department of Justice statement noted, the nonprofit cannot pursue its own case.
“Our hope was that within these 60 days we’d hear about some definitive action from the city or the EPA or the state about how this problem was going to be resolved,” said Waterkeeper’s Kristen Schlemmer. “The EPA, by filing its own action, has signaled to us that it wants to take charge of resolving the problem.”
Still, she questioned whether seeking a stay of “at least 90 days” and promising updates to the court every 45 days amounted to “diligent prosecution,” and said her group plans to intervene in the case to oppose the motion to put the proceedings on hold.
Brent Fewell, an environmental consultant and former top official in the EPA’s water division, said the sequence of events this summer is common in the enforcement of the Clean Water Act.
“A lot of times what happens is, the environmental groups will file notice and the government will intervene in those cases to kind of head off that citizen suit because it obviously complicates things if you get two suits going on at the same time,” Fewell said. “It’s not unusual for even the defendant in a case to ask the government to file suit so it basically nullifies the opportunity for the citizen suit to be filed.”
Mayor Sylvester Turner and his aides have met with senior federal officials in both the Obama and Trump administrations about the talks, which began during former mayor Annise Parker’s tenure. Turner has said he is not opposed to improving the city’s sewer system but has pushed for the costs to spread out over two decades to avoid a spike in water bills.
In a statement issued late Friday, Turner said, “It is my administration’s intent to fully resolve this matter so another mayor and city council will not have to address it, just as we did with massive pension reform and are doing to address flooding and drainage issues.”
Houston’s sewers have lagged since the city’s first postwar boom and never have caught up.
Whatever sewage treatment plants could not handle in the 1960s was dumped into the bayous, making Houston for decades the region’s single worst water polluter.
State or federal decrees in the 1970s, 1990s and 2000s prompted enormous investments in new pipes and plants, and at times restricted Houston’s pace of development until new treatment facilities were built. The $1.2 billion Greater Houston Wastewater Program of the mid 1990s, for example, was mandated by the EPA and involved the repair and replacement of a quarter of the city’s sanitary sewer lines.
Still, Houston records hundreds of illegal sewer overflows annually, its rate of spills per miles of pipe far exceeds the national average, and 80 percent of area waterways fall short of water quality standards for fecal bacteria.
A Houston Chronicle analysis two years ago also showed the neighborhoods most likely to feel the consequences of the city’s sewer struggles were disproportionately home to low-income and minority residents.
A key question left unanswered by Friday’s court filings is how long the city will be given to improve its sewer system, which will determine how quickly water bills would rise. Some other cities, including San Antonio, will wind up doubling their rates under comparable EPA decrees.
Houston’s 1970s and 1980s sewer decrees drove rate increases, but mayoral requests for rate hikes dropped off with the advent of term limits in 1991, even as debt piled up from ongoing mandated projects.
Upon taking office in 2004, former mayor Bill White locked utility revenues into a dedicated fund, raised water rates 10 percent, tied future rates to inflation, and refinanced the debt. That was not enough to prevent the debt mountain from risking a utility credit downgrade by 2010, when former mayor Annise Parker took office, so she passed a 28 percent rate hike.
Houston’s utility debt remains significant, increasing the likelihood the city will need to fund the EPA mandate with rate hikes rather than bonds.
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