I 

112TH CONGRESS 

1ST SESSION H. R. 3544 

To amend the Federal Water Pollution Control Act to limit citizens suits 

against publicly owned treatment works, to provide for defenses, to extend the period of a permit, to limit attorneys fees, and for other 

purposes. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 1, 2011 

Mr. MCCLINTOCK introduced the following bill; which was referred to the 

Committee on Transportation and Infrastructure 

A BILL 

To amend the Federal Water Pollution Control Act to limit 

citizens suits against publicly owned treatment works, 

to provide for defenses, to extend the period of a permit, 

to limit attorneys fees, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. LIMITATION ON CITIZEN SUIT PROVISION. 

4 Section 505 of the Federal Water Pollution Control 

5 Act (33 U.S.C. 1365) is amended— 

6 (1) in subsection (a) by striking ‘‘subsection 

7 (b)’’ and inserting ‘‘subsections (b) and (i)’’; and 

8 (2) by adding at the end the following: 


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1 ‘‘(i) LIMITATION FOR POTW SUITS.— 

2 ‘‘(1) IN GENERAL.—No action may be com3 menced under subsection (a)(1) by a citizen with re4 spect to a publicly owned treatment works to enforce 

5 an effluent standard or limitation under this Act or 

6 an order issued by the Administrator or a State with 

7 respect to such a standard or limitation unless the 

8 publicly owned treatment works is in significant non9 compliance, as defined in the Environmental Protec10 tion Agency’s December 12, 1996, guidance docu11 ment entitled ‘A General Design for SNC Redefini12 tion Enhancement in PCS’. 

13 ‘‘(2) EXCEPTION.—Notwithstanding paragraph 

14 (1), no action may be commenced under subsection 

15 (a)(1) with respect to a publicly owned treatment 

16 works that is in significant non-compliance based on 

17 a manual designation, as defined in the Environ18 mental Protection Agency’s December 12, 1996, 

19 guidance document entitled ‘A General Design for 

20 SNC Redefinition Enhancement in PCS’.’’. 

21 SEC. 2. AFFIRMATIVE DEFENSES. 

22 Section 309 of the Federal Water Pollution Control 

23 Act (33 U.S.C. 1319) is amended by adding at the end 

24 the following: 

25 ‘‘(h) AFFIRMATIVE DEFENSES.— 


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1 ‘‘(1) IN GENERAL.—There shall be no liability 

2 under this Act for a person otherwise liable for the 

3 unlawful discharge of a pollutant from a publicly 

4 owned treatment works who can establish by a pre5 ponderance of the evidence that the immediate cause 

6 of the unlawful discharge and any damages was— 

7 ‘‘(A) an act of God; 

8 ‘‘(B) an act of war; 

9 ‘‘(C) an act or omission of a third party 

10 other than an employee or agent of the defend11 ant, or than one whose act or omission occurs 

12 in connection with a contractual relationship, 

13 existing directly or indirectly, with the defend14 ant, if the defendant establishes by a prepon15 derance of the evidence that— 

16 ‘‘(i) he exercised due care in light of 

17 all relevant facts and circumstances; and 

18 ‘‘(ii) he took precautions against fore19 seeable acts or omissions of any such third 

20 party and the consequences that could 

21 foreseeably result from such acts or omis22 sions; or 

23 ‘‘(D) any combination of the foregoing 

24 subparagraphs. 


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1 ‘‘(2) ADDITIONAL DEFENSES.—All general de2 fenses, affirmative defenses, and bars to prosecution 

3 that may apply with respect to other Federal crimi4 nal offenses may apply under this Act and shall be 

5 determined by the courts of the United States ac6 cording to the principles of common law as they may 

7 be interpreted in the light of reason and experience. 

8 Concepts of justification and excuse applicable under 

9 this section may be developed in the light of reason 

10 and experience.’’. 

11 SEC. 3. WAITING PERIOD. 

12 In implementing the Federal Water Pollution Control 

13 Act, the Administrator of the Environmental Protection 

14 Agency or a State, as the case may be, shall provide a 

15 60-day waiting period between the notice of a violation of 

16 the Act by a publicly owned treatment works and the 

17 issuance of a civil penalty. If within such 60-day period 

18 the publicly owned treatment works submits a viable plan 

19 for correcting the non-compliance that is the subject of 

20 the notice and thereafter diligently implements such plan, 

21 the Administrator shall not assess a civil penalty for the 

22 notice of violation. 

23 SEC. 4. PERMIT LENGTH. 

24 (a) IN GENERAL.—Notwithstanding any other law, 

25 any permit issued to the owner or operator of a publicly 


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1 owned treatment works by the Administrator of the Envi2 ronmental Protection Agency or a State, as the case may 

3 be, to discharge a pollutant under the Federal Water Pol4 lution Control Act shall have a 15-year term. 

5 (b) CONFORMING AMENDMENT.—Section 

6 402(b)(1)(B) of the Federal Water Pollution Control Act 

7 is amended by striking ‘‘five years’’ and inserting ‘‘5 

8 years, or, in the case of a publicly owned treatment works, 

9 15 years’’. 

10 SEC. 5. ATTORNEY’S FEES. 

11 Section 505(d) of the Federal Water Pollution Con12 trol Act (33 U.S.C. 1365(d)) is amended by inserting after 

13 the first sentence the following: ‘‘With respect to an action 

14 involving a publicly owned treatment works, the court, in 

15 determining whether the costs of litigation (including at16 torney and expert witness fees) are reasonable, shall con17 sider the prevailing rate of such fees in the community 

18 where the publicly owned treatment works is located.’’. 

19 SEC. 6. COST BENEFIT ANALYSIS. 

20 Notwithstanding any other law, any new or increased 

21 treatment requirement associated with a permit issued to 

22 the owner or operator of a publicly owned treatment works 

23 by the Administrator of the Environmental Protection 

24 Agency or a State, as the case may be, to discharge a 

25 pollutant under the Federal Water Pollution Control Act 


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1 shall be subject to a cost-benefit analysis performed by 

2 the Administrator or the State to ensure that the costs 

3 imposed on such owner or operator to comply with such 

4 new or increased requirement are outweighed by the ben5 efit to the public of the new or increased requirement. 

Æ 


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