UPDATE (4/28/2022): Late last week the U.S. Department of Justice filed a lawsuit, known as an enforcement action, against the city of Baytown. The lawsuit, prompted by our notice of intent to sue, identifies more than 800 sewage releases since April 2017. The lawsuit alleges that these releases were caused by the city’s failure to operate and maintain their wastewater collection and treatment system and violate the federal Clean Water Act, Texas Water Code, and state-issued permits. Today, we asked for the court’s permission to intervene and help drive these legal violations toward a resolution that focuses on the communities most affected by sewage pollution in Baytown, through a process that is transparent and accessible.
Our Legal Director and Waterkeeper Kristen Schlemmer had this to say: “This is an important first step to address well-known sewage pollution in Baytown and Galveston Bay, and we intend to stay involved. As intervenors in this process, we’ll work to give communities a real voice in shaping a just solution.”
To learn more about our investigation and notice of intent to sue that led to this enforcement action, keep reading. (News coverage: Houston Matters (23:45 mark), Houston Chronicle, Baytown Sun, Law360.)
Earlier this year, Bayou City Waterkeeper served the city of Baytown with a notice of intent to sue under the Clean Water Act. Similar to our legal action against the city of Houston that culminated last year in a consent decree requiring $2 billion in investment over the next 15 years, this notice targets problems with Baytown’s ailing sanitary sewer system. Our analysis identified more than 800 potential violations of the Clean Water Act sanitary sewer overflows—882 overflows representing more than 21 million gallons of sewage leaving Baytown’s system without treatment from 2016 to 2021. Our analysis also concluded the highest volume overflows have had a disproportionate impact on Hispanic/Latinx communities in Baytown. Learn more below.
What is a sanitary sewer overflow?
A sanitary sewer overflow (“SSO”) occurs when untreated or partially treated sewage is discharged from a wastewater collection system before it reaches the treatment facility. Overflows may take many forms. Rainstorms may overwhelm sanitary and storm sewer systems and carry hundreds of thousands, if not millions, of gallons of untreated sewage into local bayous, rivers, creeks, and bays. Raw sewage may pool in local parks and other spaces used by the public. Toilets may back up into families’ homes. SSOs may be caused by some combination of the failure to operate or maintain a system properly, equipment breaks or failures, blockages, or other deficiencies with the system. Whatever form an overflow takes, it dirties local water, harms public health, and potentially violates the Clean Water Act. Depending on when they occurred, violations trigger penalties ranging from $53,484 to $56,460 per violation, per day per violation.
In the case of Baytown, we identified 882 overflows that potentially violate the Clean Water Act. Penalties for the violations identified in this letter could exceed $47 million.
What is the legal basis for your notice of intent to sue?
Section 301(a) of the Clean Water Act prohibits the discharge of any pollutant from any point source to waters of the United States, except for discharges in compliance with a wastewater permit, which in Texas, are called TPDES permits and issued by the Texas Commission on Environmental Quality. Untreated wastewater is a pollutant that cannot be discharged without a TPDES permit under the Clean Water Act. See 33 U.S.C. § 1362(6). Baytown’s TPDES permits only authorize the city to discharge wastewater that has been treated according to the permits’ specific conditions and at the location of an authorized outfall. Baytown’s permits expressly prohibit sanitary sewer overflows and other intentional bypasses from their wastewater collection systems. Because each of the discharges individually violates Baytown’s TPDES permits, each represents a separate violation of the Clean Water Act. See 33 U.S.C. § 1365(a).
What water bodies are most affected by Baytown’s overflows?
Baytown’s four wastewater treatment plants discharge treated effluent into Cedar Bayou, Goose Creek, the San Jacinto River, and Tabbs Bay, which flow into Trinity Bay and Galveston Bay. These all have been listed as impaired for failing to meet water quality standards; Cedar Bayou in particular is impaired for high levels of bacteria.
How do Baytown’s overflows create environmental injustices?
EPA’s EJSCREEN mapping tool shows that Baytown as a whole faces disproportionately large burdens of nearly every type of pollution measured. Baytown’s low-income populations of color particularly endure a larger burden of pollution for every indicator measured compared to other communities across the United States, region, and state—including wastewater discharges. For the EPA’s wastewater discharge EJ index in particular, Baytown ranks in the 86 percentile nationwide, the 83 percentile in the region, and the 81 percentile in the state.
Our analysis confirmed these trends, particularly when assessing how high-volume overflows affect Baytown’s Hispanic/Latinx communities, as reflected in the map to the right. To learn more, look at pages 4-9 of our notice of intent to sue.
How do these overflows relate to local flood risks?
BCWK analyzed Baytown’s self-reported SSOs to understand their relationship with local flood risks. Our mapping reflects that many SSOs occurred within 100-year floodplains and are at a heightened risk for contaminating waterways.
Our notice of intent to sue is a legal requirement of the Clean Water Act. Before we may file a lawsuit, we must wait 60 days and give state and federal regulators a chance to act. In the case of the city of Houston’s sewer problems, regulators filed a federal enforcement action 59 days after we served a notice of intent to sue. If regulators do not take enforcement action against Baytown in the next 60 days, we intend to file a citizen suit under the Clean Water Act.
Statement by Kristen Schlemmer, Legal Director & Waterkeeper
Baytown’s sewer problems are among the worst we’ve seen in the greater Houston region. The city of Baytown released more than 21 million gallons of sewage over the last five years. In comparison, the city of Houston released 15 million gallons from its much larger system over a similar time period. This compounds the real environmental injustices Baytown residents face every day from living in the shadow of industry—and violates the Clean Water Act. By serving our notice of intent to sue, we’re sending a clear message that the time has come for the city of Baytown to clean up its act.
Bayou City Waterkeeper is a Houston-based organization working at the confluence of conservation and environmental justice toward cleaner water, healthy ecosystems, and just, resilient communities. Bayou City Waterkeeper’s legal action against the city of Houston targeted more than 9,000 violations of the Clean Water Act and culminated in a consent decree requiring the city to invest $2 billion in its sanitary sewer system over the next fifteen years.