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‘Secrecy Provision’ Prevented Public Input On Houston’s $2 Billion Deal To Fix Sewers

Councilmember Dwight Boykins told News 88.7 he plans to delay the vote for one week, so advocates have an opportunity to view the agreement. 

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UPDATE (July 17, 2019): Mayor Sylvester Turner delayed the vote by one week to give the public an opportunity to review the agreement. According to the Mayor’s Office, the $1,000 fine for disclosing information from the document was in accordance with state law.

After years of negotiation, Houston is finalizing an agreement with the EPA to curb sewage spills that violate the federal Clean Water Act.

City Council is expected to vote on the deal on Wednesday. If approved, the consent decree would be filed in court followed by a 30-day public comment period. It would then go to a judge for approval.

According to local officials, Houston will spend $2 billion over 15 years to stop sewer overflows. The city reported more than 9,000 of those discharges over a five-year period, according to the local advocacy group Bayou City Waterkeeper.

Houston will also pay $4.6 million for sewage violations going back to 2005.

It's unclear how the upgrades will affect water bills, but Mayor Sylvester Turner said rates would be expected to remain below the EPA's affordability threshold, which means the rate could not exceed 2% of median household income.

The city announced the agreement last week, but details were kept confidential about which infrastructure projects would get top priority or when they would be completed.

After public pressure from advocates, Mayor Sylvester Turner's office agreed on Tuesday to make the consent decree public ahead of the City Council meeting.

Following the release of the consent decree, Councilmember Dwight Boykins told News 88.7 he plans to delay the vote for one week, so advocates have an opportunity to view the agreement prior to the Council vote.

(You can read the consent decree, here, on the City Council agenda.)

At-large Councilmember Jack Christie confirmed he and his colleagues had faced a penalty for disclosing information to the public, prior to the release of the decree Tuesday.

"I think maybe a $1,000 fine or something," Christie said. "But that doesn't bother me.”

He said he couldn’t recall seeing another confidentiality penalty in his eight years on city council.

"But this is a major settlement with the federal government and the EPA. So again it doesn't bother me to have the information but not give it out until after it's voted on," Christie said.

Tracy Hester, an environmental law professor at the University of Houston Law Center, said the penalty wasn’t business as usual for EPA agreements.

"I haven't heard of that before. I'm unaware of any other prior consent decree on a major environmental enforcement action that's had a similar type of secrecy provision," Hester said.

City Attorney Ron Lewis presented the consent decree before a council committee meeting last week. District J Councilmember Mike Laster asked Lewis if the document was confidential because it contained controversial plans. Lewis responded, "We're trying to work with our regulatory bodies in a way that is consistent with our collective belief about what's in the best interest of the public."

Other councilmembers raised questions about whether confidentiality would impact public participation, though Lewis dismissed those concerns.

"Once the decree is lodged and there's an opportunity for public comment you may hear from the public about whether they agree with the technical assessments about what the system really needs," Lewis said. "But I don't anticipate that the long-term improvement of the system can be a function of such a process."

Jordan Macha, the executive director of Bayou City Waterkeeper, argued the consent decree should be made public before the vote.

“It is our understanding that there is no legal barrier for this to become public to the citizens of Houston today,” Macha said. “This is a choice made by the EPA and the city of Houston, and if City Council and the city wanted to make this public they could. And we would very much welcome the opportunity to review this consent decree.”

Hester said after City Council approves a decree, the public comment period is a narrow opportunity to make changes in the agreement.

"Once the decree has been lodged at the court, to be honest it's hard to get changes made to it fairly readily," Hester said. "The court typically gives it a fairly lax standard of review. It's not going to be a close, probing scrutiny. It's going to be just making sure that the agreement is fair, legal, and meets the requirements."

According to Hester, it’s typical that the public has only a limited role in this type of negotiation, though the stakes are high for the terms of the $2 billion deal.

"You want to make sure the consent decree is written in a way that it puts the most important work first, and make sure that the money available for that work gets allocated, and that there are some actual binding commitments that it gets done in a way that actually makes a difference," he said. “It’s also important that if the consent decree prioritizes what work gets done where, that there’s attention paid to environmental justice concerns, and that neighborhoods that are perhaps not as wealthy or have communities of color are receiving the protection that they deserve. All of those need to have transparency and input from the public.”

Hester said a city typically isn’t required to keep the document confidential under the terms of the agreement.

"If the city chooses to, they could certainly normally share that information. That's what makes the penalty provision here such an interesting twist,” he said.

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