On July 23, 2018, Bayou City Waterkeeper (“BCW”) served a 60-day notice of intent (“NOI”) to sue to the City of Houston for more than 9,000 self-reported sewage discharge violations. These discharges were largely caused by sanitary sewage overflows.

BCW’s NOI
According to the NOI, if the City of Houston does not correct the overflow issue, BCW intends to file a citizen suit under the Federal Clean Water Act for violations of the discharge permits for the City’s wastewater treatment plants (“WWTPs”).  BCW alleges violations beginning July 2013 at nearly all WWTPs in the Houston area.

City’s Response
In response to the NOI, Mayor Sylvester Turner’s office issued a statement providing an update on improvements to the WWTPs.  The statement discussed the upgrade of the system and negotiations with EPA. The Mayor’s office explained that the City has been negotiating the details of a plan with EPA for several years; however, Hurricane Harvey temporarily delayed the negotiations and required additional coordination with FEMA. Negotiations are now resuming on a plan to address the City’s aging sewer system and the increasing needs of Houston’s rapidly-growing population. The City’s negotiations are part of a national EPA program involving numerous cities.

Will EPA Need to Sue the City to Preclude the Citizen Suit?
The citizen suit provision of the Clean Water Act gives EPA 60 days to bring and diligently prosecute its own enforcement action regarding the violations.  If EPA does not, the citizen suit can go forward.

Even if EPA does not file suit, it and the City may argue that EPA’s administrative efforts preclude the citizen suit.  BCW may challenge that position and argue the more than 9,000 violations demonstrate that any EPA effort is not diligent prosecution.

For a copy of Bayou City Waterkeeper’s Notice of Intent: http://bit.ly/bcwk_noi