II 

112TH CONGRESS 

2D SESSION S. 2094 

To amend the Federal Water Pollution Control Act to update a program 

to provide assistance for the planning, design, and construction of treatment works to intercept, transport, control, or treat municipal combined 

sewer overflows and sanitary sewer overflows, and to require the Administrator of the Environmental Protection Agency to update certain guidance used to develop and determine the financial capability of communities to implement clean water infrastructure programs. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 9, 2012 

Mr. BROWN of Ohio introduced the following bill; which was read twice and 

referred to the Committee on Environment and Public Works 

A BILL 

To amend the Federal Water Pollution Control Act to update 

a program to provide assistance for the planning, design, 

and construction of treatment works to intercept, transport, control, or treat municipal combined sewer overflows and sanitary sewer overflows, and to require the 

Administrator of the Environmental Protection Agency 

to update certain guidance used to develop and determine 

the financial capability of communities to implement 

clean water infrastructure programs. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Clean Water Afford3 ability Act of 2012’’. 

4 SEC. 2. SEWER OVERFLOW CONTROL GRANTS. 

5 Section 221 of the Federal Water Pollution Control 

6 Act (33 U.S.C. 1301) is amended— 

7 (1) by striking subsections (a) through (g) and 

8 inserting the following: 

9 ‘‘(a) GRANTS.—The Administrator may— 

10 ‘‘(1) make grants to States for the purpose of 

11 providing grants to local or regional authorities or a 

12 municipality or municipal entity for use in planning, 

13 designing, and constructing treatment works to 

14 intercept, transport, control, or treat municipal com15 bined sewer overflows and sanitary sewer overflows; 

16 and 

17 ‘‘(2) make a grant directly to a local or regional 

18 authority or municipality or municipal entity for the 

19 purposes described in paragraph (1). 

20 ‘‘(b) PRIORITIZATION.—In selecting from among mu21 nicipalities applying for grants under this section, a State 

22 or the Administrator shall give priority to an applicant 

23 that is a financially distressed community, as determined 

24 by the applicable State under subsection (c). 

25 ‘‘(c) DETERMINATION.—In determining whether a 

26 community is a distressed community for the purposes of 


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1 subsection (b), a State shall consider, among other factors, 

2 the criteria described in section 5(b)(2)(A) of the Clean 

3 Water Affordability Act. 

4 ‘‘(d) COST-SHARING.— 

5 ‘‘(1) FEDERAL SHARE.—The Federal share of 

6 the cost of any project or activity carried out using 

7 funds from a grant made under subsection (a) shall 

8 be not less than 75 percent. 

9 ‘‘(2) NON-FEDERAL SHARE.—The non-Federal 

10 share of the cost of any project or activity carried 

11 out using funds from a grant made under subsection 

12 (a) may include— 

13 ‘‘(A) in any amount, public and private 

14 funds and in-kind services; and 

15 ‘‘(B) notwithstanding section 603, finan16 cial assistance, including loans, from a State 

17 water pollution control revolving fund. 

18 ‘‘(e) ADMINISTRATIVE REQUIREMENTS.— 

19 ‘‘(1) IN GENERAL.—Subject to paragraph (2), a 

20 project that receives grant assistance under sub21 section (a) shall be carried out subject to the same 

22 requirements as a project that receives assistance 

23 from a State water pollution control revolving fund 

24 established pursuant to title VI. 


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1 ‘‘(2) DETERMINATION OF GOVERNOR.—The re2 quirement described in paragraph (1) shall not apply 

3 to a project that receives grant assistance under 

4 subsection (a) to the extent that the Governor of the 

5 State in which the project is located determines that 

6 a requirement described in title VI is inconsistent 

7 with the purposes of this section. 

8 ‘‘(f) ALLOCATION OF FUNDS.— 

9 ‘‘(1) FISCAL YEAR 2013.—For fiscal year 2013, 

10 subject to subsection (g), the Administrator shall use 

11 the amounts made available to carry out this section 

12 under subsection (i)(1) to provide grants to munici13 palities and municipal entities under subsection 

14 (a)(2) in accordance with the priority criteria de15 scribed in subsection (b). 

16 ‘‘(2) FISCAL YEAR 2014 AND THEREAFTER.— 

17 For fiscal year 2014 and each fiscal year thereafter, 

18 subject to subsection (g), the Administrator shall use 

19 the amounts appropriated to carry out this section 

20 under subsection (i)(1) to provide grants to States 

21 under subsection (a)(1) in accordance with a for22 mula that— 

23 ‘‘(A) shall be established by the Adminis24 trator, after providing notice and an oppor25 tunity for public comment; and 


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1 ‘‘(B) allocates to each State a proportional 

2 share of the amounts based on the total needs 

3 of the State for municipal combined sewer over4 flow controls and sanitary sewer overflow con5 trols, as identified in the most recent survey— 

6 ‘‘(i) conducted under section 210; and 

7 ‘‘(ii) included in a report required 

8 under section 516(a).’’; 

9 (2) by redesignating subsections (h) and (i) as 

10 subsections (g) and (h), respectively; 

11 (3) in the first sentence of subsection (h) (as 

12 redesignated by paragraph (2)), by striking ‘‘2003’’ 

13 and inserting ‘‘2013’’; and 

14 (4) by adding at the end the following: 

15 ‘‘(i) FUNDING.— 

16 ‘‘(1) AUTHORIZATION OF APPROPRIATIONS.— 

17 There are authorized to be appropriated to carry out 

18 this section— 

19 ‘‘(A) $250,000,000 for fiscal year 2013; 

20 ‘‘(B) $300,000,000 for fiscal year 2014; 

21 ‘‘(C) $350,000,000 for fiscal year 2015; 

22 ‘‘(D) $400,000,000 for fiscal year 2016; 

23 and 

24 ‘‘(E) $500,000,000 for fiscal year 2017. 


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1 ‘‘(2) AVAILABILITY OF AMOUNTS.—Amounts 

2 authorized to be appropriated under paragraph (1) 

3 shall remain available until expended.’’. 

4 SEC. 3. INTEGRATED PERMITTING PROCESS. 

5 (a) IN GENERAL.—Section 402(a) of the Federal 

6 Water Pollution Control Act (33 U.S.C. 1342(a)) is 

7 amended by inserting after paragraph (5) the following: 

8 ‘‘(6) INTEGRATED PERMITS.— 

9 ‘‘(A) DEFINITION OF PUBLICLY OWNED

10 PERMITTEE.—In this paragraph, the term ‘pub11 licly owned permittee’ means— 

12 ‘‘(i) a treatment works (as defined in 

13 section 212) that is publicly owned; and 

14 ‘‘(ii) a municipal separate storm sewer 

15 system referred to in this section. 

16 ‘‘(B) PLANNING APPROACH.—The Admin17 istrator shall establish a comprehensive and in18 tegrated planning approach to the obligations 

19 under this section of a publicly owned per20 mittee— 

21 ‘‘(i) under which permit obligations 

22 may be implemented according to a sched23 ule that— 


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1 ‘‘(I) accounts for the financial ca2 pability of the publicly owned per3 mittee; 

4 ‘‘(II) prioritizes permit obliga5 tions according to the most cost-effec6 tive and environmentally beneficial 

7 outcomes; 

8 ‘‘(III) accounts for the pre9 existing maintenance, operational, and 

10 regulatory obligations of the publicly 

11 owned permittee under this section; 

12 and 

13 ‘‘(IV) enables the publicly owned 

14 permittee to implement innovative ap15 proaches to meet those obligations; 

16 and 

17 ‘‘(ii) that accounts for changed cir18 cumstances in the obligations of the pub19 licly owned permittee, such as— 

20 ‘‘(I) new innovative treatment 

21 approaches; 

22 ‘‘(II) new regulatory require23 ments; and 

24 ‘‘(III) changes in financial capa25 bility.’’. 


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1 (b) DURATION OF PERMITS.—Section 402(b)(1)(B) 

2 of the Federal Water Pollution Control Act (33 U.S.C. 

3 1342(b)(1)(B)) is amended by inserting before the semi4 colon at the end the following: ‘‘, except that a permit with 

5 a term of more than 5 years but not more than 25 years 

6 may be approved if the permittee has an approved inte7 grated plan established under subsection (a)(6)’’. 

8 SEC. 4. COMBINED SEWAGE OVERFLOW LONG-TERM CON9 TROL PLAN. 

10 Section 402(q) of the Federal Water Pollution Con11 trol Act (33 U.S.C. 1342(q)) is amended by adding at the 

12 end the following: 

13 ‘‘(4) COMBINED SEWAGE OVERFLOW LONG14 TERM CONTROL PLAN.— 

15 ‘‘(A) IN GENERAL.—The Administrator 

16 shall amend the CSO control policy to allow a 

17 publicly owned treatment work that has an ap18 proved long-term control plan to modify the 

19 plan to incorporate green infrastructure and en20 ergy-efficient technologies on a showing that 

21 the use of the technologies can cost-effectively 

22 help to meet the terms of the combined sewer 

23 overflow compliance obligations of the treat24 ment work. 


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1 ‘‘(B) COMPLIANCE.—The Administrator 

2 shall allow for 30 years to meet compliance obli3 gations under long-term control plans modified 

4 under this paragraph.’’. 

5 SEC. 5. ENVIRONMENTAL PROTECTION AGENCY GREEN IN6 FRASTRUCTURE PROMOTION. 

7 Title V of the Federal Water Pollution Control Act 

8 (33 U.S.C. 1361 et seq.) is amended— 

9 (1) by redesignating section 519 (33 U.S.C. 

10 1251 note) as section 520; and 

11 (2) by inserting after section 518 (33 U.S.C. 

12 1377) the following: 

13 ‘‘SEC. 519. ENVIRONMENTAL PROTECTION AGENCY GREEN 

14 INFRASTRUCTURE PROMOTION. 

15 ‘‘(a) IN GENERAL.—The Administrator shall ensure 

16 that the Office of Water, the Office of Enforcement and 

17 Compliance Assurance, the Office of Research and Devel18 opment, and the Office of Policy of the Environmental 

19 Protection Agency promote the use of green infrastructure 

20 in and coordinate the integration of green infrastructure 

21 into permitting programs, planning efforts, research, tech22 nical assistance, and funding guidance. 

23 ‘‘(b) DUTIES.—The Administrator shall ensure that 

24 the Office of Water— 


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1 ‘‘(1) promotes the use of green infrastructure in 

2 the programs of the Environmental Protection Agen3 cy; and 

4 ‘‘(2) coordinates efforts to increase the use of 

5 green infrastructure with— 

6 ‘‘(A) other Federal departments and agen7 cies; 

8 ‘‘(B) State, tribal, and local governments; 

9 and 

10 ‘‘(C) the private sector. 

11 ‘‘(c) REGIONAL GREEN INFRASTRUCTURE PRO12 MOTION.—The Administrator shall direct each regional of13 fice of the Environmental Protection Agency, as appro14 priate based on local factors, to promote and integrate the 

15 use of green infrastructure within the region that in16 cludes— 

17 ‘‘(1) a plan for monitoring, financing, mapping, 

18 and designing the green infrastructure; 

19 ‘‘(2) outreach and training regarding green in20 frastructure implementation for State, tribal, and 

21 local governments, tribal communities, and the pri22 vate sector; and 

23 ‘‘(3) the incorporation of green infrastructure 

24 into permitting and other regulatory programs, 

25 codes, and ordinance development, including the reVerDate Mar 15 2010 05:27 Feb 10, 2012 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2094.IS S2094

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1 quirements under consent decrees and settlement 

2 agreements in enforcement actions. 

3 ‘‘(d) GREEN INFRASTRUCTURE INFORMATION-SHAR4 ING.—The Administrator shall promote green infrastruc5 ture information-sharing, including through an Internet 

6 website, to share information with, and provide technical 

7 assistance to, State, tribal, and local governments, tribal 

8 communities, the private sector, and the public regarding 

9 green infrastructure approaches for— 

10 ‘‘(1) reducing water pollution; 

11 ‘‘(2) protecting water resources; 

12 ‘‘(3) complying with regulatory requirements; 

13 and 

14 ‘‘(4) achieving other environmental, public 

15 health, and community goals. 

16 ‘‘(e) GREEN INFRASTRUCTURE PORTFOLIO STAND17 ARD.—The Administrator, in collaboration with State, 

18 tribal, and local water resource managers, shall establish 

19 voluntary measurable goals, to be known as the ‘green in20 frastructure portfolio standard’, to increase the percentage 

21 of annual water managed by eligible entities that use 

22 green infrastructure.’’. 


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1 SEC. 6. WATER POLLUTION CONTROL REVOLVING LOAN 

2 FUNDS. 

3 (a) EXTENDED REPAYMENT PERIOD.—Section 

4 603(d)(1) of the Federal Water Pollution Control Act (33 

5 U.S.C. 1383(d)(1)) is amended— 

6 (1) in subparagraph (A), by striking ‘‘20 years’’ 

7 and inserting ‘‘the lesser of 30 years or the design 

8 life of the project to be financed with the proceeds 

9 of the loan’’; and 

10 (2) in subparagraph (B), by striking ‘‘not later 

11 than 20 years after project completion’’ and insert12 ing ‘‘upon the expiration of the term of the loan’’. 

13 SEC. 7. UPDATING OF GUIDANCE. 

14 (a) DEFINITIONS.—In this section: 

15 (1) ADMINISTRATOR.—The term ‘‘Adminis16 trator’’ means the Administrator of the Environ17 mental Protection Agency. 

18 (2) AFFORDABILITY.—The term ‘‘affordability’’ 

19 means, with respect to payment of a utility bill, a 

20 measure of whether an individual customer or house21 hold can pay the bill without undue hardship or un22 reasonable sacrifice in the essential lifestyle or 

23 spending patterns of the individual or household, as 

24 determined by the Administrator. 

25 (3) FINANCIAL CAPABILITY.—The term ‘‘finan26 cial capability’’ means the financial capability of a 


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1 community to make investments necessary to make 

2 water quality-related improvements, taking into con3 sideration the criteria described in subsection 

4 (b)(2)(A). 

5 (4) GUIDANCE.—The term ‘‘guidance’’ means 

6 the guidance published by the Administrator entitled 

7 ‘‘Combined Sewer Overflows—Guidance for Finan8 cial Capability Assessment and Schedule Develop9 ment’’ and dated February 1997, as applicable to 

10 combined sewer overflows and sanitary sewer over11 flows. 

12 (b) UPDATING.— 

13 (1) IN GENERAL.—Not later than 1 year after 

14 the date of enactment of this Act, the Administrator 

15 shall update the guidance to ensure that the evalua16 tions by the Administrator of financial capability as17 sessment and schedule development meet the criteria 

18 described in paragraph (2). 

19 (2) CRITERIA.—The criteria described in this 

20 paragraph are that, under the updated guidance— 

21 (A) in assessing financial capability of a 

22 community— 

23 (i) greater emphasis should be placed 

24 on local economic conditions; 


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1 (ii) for regional systems, consideration 

2 should be given to the economic conditions 

3 of political jurisdictions and significant de4 mographic groups within each region; 

5 (iii) prescriptive formulas for use in 

6 calculating financial capability and thresh7 olds for expenditure should not be consid8 ered to be the only indicator of the finan9 cial capability of a community; 

10 (iv) site-specific local conditions 

11 should be taken into consideration in ana12 lyzing financial capability; 

13 (v) a single measure of financial capa14 bility or affordability (such as median 

15 household income) should be viewed in the 

16 context of other economic measures, rather 

17 than as a threshold to be achieved; and 

18 (vi)(I) consideration should be given 

19 to the economic outlook of a community, 

20 including the potential impact of program 

21 requirements over time, in the development 

22 of implementation schedules; and 

23 (II) the assessment should take into 

24 consideration other essential community 


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1 investments relating to water quality im2 provements; 

3 (B) with respect to the timing of imple4 mentation of water quality-related improve5 ments— 

6 (i) environmental improvement imple7 mentation schedules should be structured 

8 to mitigate the potential adverse impact on 

9 distressed populations resulting from the 

10 costs of the improvements; and 

11 (ii) implementation schedules should 

12 reflect local community financial conditions 

13 and economic impacts; 

14 (C) with respect to implementation of 

15 methodologies— 

16 (i) a determination of local financial 

17 capability may be achieved through an 

18 evaluation of an array of factors the rel19 ative importance of which may vary across 

20 regions and localities; and 

21 (ii) an appropriate methodology 

22 should give consideration to such various 

23 factors as are appropriate to recognize the 

24 prevailing and projected economic concerns 

25 in a community; and 


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1 (D) the residential indicator should be re2 vised to include— 

3 (i) a consideration of costs imposed 

4 upon ratepayers for essential utilities; 

5 (ii) increased consideration and quan6 tification of local community-imposed costs 

7 in regional systems; 

8 (iii) a mechanism to assess impacts on 

9 communities with disparate economic con10 ditions throughout the entire service area 

11 of a utility; 

12 (iv) a consideration of the industrial 

13 and population trends of a community; 

14 (v) recognition that— 

15 (I) the median household income 

16 of a service area reflects a numerical 

17 median rather than the distribution of 

18 incomes within the service area; and 

19 (II) more representative methods 

20 of determining affordability, such as 

21 shelter costs, essential utility pay22 ments, and State and local tax efforts, 

23 should be considered; 

24 (vi) a consideration of low-income 

25 ratepayer percentages; and 


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1 (vii) impacts relating to program de2 livery, such as water quality infrastructure 

3 market saturation and program manage4 ment. 

5 (3) IMPLEMENTATION.—The updated guidance 

6 should indicate that, in a case in which a previously 

7 approved long-term control plan or associated en8 forceable agreement allows for modification of the 

9 plan or terms of the agreement (including financial 

10 capability considerations), and all parties are in 

11 agreement that a change is needed or that the plan 

12 or agreement contains a reopener provision to ad13 dress changes in the economic or financial status of 

14 the community since the effective date of the plan or 

15 agreement, reconsideration and modification of fi16 nancial capability determinations and implementa17 tion schedules based on the criteria described in 

18 paragraph (2) are appropriate. 

19 (c) PUBLICATION AND SUBMISSION.—Upon comple20 tion of the updating of guidance under subsection (b), the 

21 Administrator shall publish in the Federal Register and 

22 submit to the Committee on Environment and Public 

23 Works of the Senate and the Committee on Transpor24 tation and Infrastructure of the House of Representatives 

25 the updated guidance. 


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1 (d) AUTHORIZATION OF APPROPRIATIONS.—There 

2 are authorized to be appropriated such sums as are nec3 essary to carry out this section. 

Æ 


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