I 

115TH CONGRESS 

1ST SESSION H. R. 1971 

To provide for integrated plan permits, to establish an Office of the Municipal 

Ombudsman, to promote green infrastructure, and to require the revision 

of financial capability guidance. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 6, 2017 

Mr. SMUCKER introduced the following bill; which was referred to the Committee on Transportation and Infrastructure, and in addition to the Committee on Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions 

as fall within the jurisdiction of the committee concerned 

A BILL 

To provide for integrated plan permits, to establish an Office 

of the Municipal Ombudsman, to promote green infrastructure, and to require the revision of financial capability guidance. 

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

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Water Infrastructure 

5 Flexibility Act’’. 


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1 SEC. 2. DEFINITION OF ADMINISTRATOR. 

2 In this Act, the term ‘‘Administrator’’ means the Ad3 ministrator of the Environmental Protection Agency. 

4 SEC. 3. INTEGRATED PLANS. 

5 (a) INTEGRATED PLANS.—Section 402 of the Fed6 eral Water Pollution Control Act (33 U.S.C. 1342) is 

7 amended by adding at the end the following: 

8 ‘‘(s) INTEGRATED PLAN PERMITS.— 

9 ‘‘(1) DEFINITIONS.—In this subsection: 

10 ‘‘(A) GREEN INFRASTRUCTURE.—The 

11 term ‘green infrastructure’ means the range of 

12 measures that use plant or soil systems, per13 meable pavement or other permeable surfaces 

14 or substrates, stormwater harvest and reuse, or 

15 landscaping to store, infiltrate, or evapotranspi16 rate stormwater and reduce flows to sewer sys17 tems or to surface waters. 

18 ‘‘(B) INTEGRATED PLAN.—The term ‘inte19 grated plan’ has the meaning given in Part III 

20 of the Integrated Municipal Stormwater and 

21 Wastewater Planning Approach Framework, 

22 issued by the Environmental Protection Agency 

23 and dated June 5, 2012. 

24 ‘‘(C) MUNICIPAL DISCHARGE.— 

25 ‘‘(i) IN GENERAL.—The term ‘munic26 ipal discharge’ means a discharge from a 


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1 treatment works (as defined in section 

2 212) or a discharge from a municipal 

3 storm sewer under subsection (p). 

4 ‘‘(ii) INCLUSION.—The term ‘munic5 ipal discharge’ includes a discharge of 

6 wastewater or storm water collected from 

7 multiple municipalities if the discharge is 

8 covered by the same permit issued under 

9 this section. 

10 ‘‘(2) INTEGRATED PLAN.— 

11 ‘‘(A) IN GENERAL.—The Administrator (or 

12 a State, in the case of a permit program ap13 proved under subsection (b)) shall inform a mu14 nicipal permittee or multiple municipal permit15 tees of the opportunity to develop an integrated 

16 plan. 

17 ‘‘(B) SCOPE OF PERMIT INCORPORATING

18 INTEGRATED PLAN.—A permit issued under 

19 this subsection that incorporates an integrated 

20 plan may integrate all requirements under this 

21 Act addressed in the integrated plan, including 

22 requirements relating to— 

23 ‘‘(i) a combined sewer overflow; 


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1 ‘‘(ii) a capacity, management, oper2 ation, and maintenance program for sani3 tary sewer collection systems; 

4 ‘‘(iii) a municipal stormwater dis5 charge; 

6 ‘‘(iv) a municipal wastewater dis7 charge; and 

8 ‘‘(v) a water quality-based effluent 

9 limitation to implement an applicable 

10 wasteload allocation in a total maximum 

11 daily load. 

12 ‘‘(3) COMPLIANCE SCHEDULES.— 

13 ‘‘(A) IN GENERAL.—A permit for a munic14 ipal discharge by a municipality that incor15 porates an integrated plan may include a sched16 ule of compliance, under which actions taken to 

17 meet any applicable water quality-based effluent 

18 limitation may be implemented over more than 

19 1 permit term if the compliance schedules are 

20 authorized by State water quality standards. 

21 ‘‘(B) INCLUSION.—Actions subject to a 

22 compliance schedule under subparagraph (A) 

23 may include green infrastructure if imple24 mented as part of a water quality-based effluent 

25 limitation. 


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1 ‘‘(C) REVIEW.—A schedule of compliance 

2 may be reviewed each time the permit is re3 newed. 

4 ‘‘(4) EXISTING AUTHORITIES RETAINED.— 

5 ‘‘(A) APPLICABLE STANDARDS.—Nothing 

6 in this subsection modifies any obligation to 

7 comply with applicable technology and water 

8 quality-based effluent limitations under this 

9 Act. 

10 ‘‘(B) FLEXIBILITY.—Nothing in this sub11 section reduces or eliminates any flexibility 

12 available under this Act, including the authority 

13 of— 

14 ‘‘(i) a State to revise a water quality 

15 standard after a use attainability analysis 

16 under section 131.10(g) of title 40, Code 

17 of Federal Regulations (as in effect on the 

18 date of enactment of this subsection), sub19 ject to the approval of the Administrator 

20 under section 303(c); and 

21 ‘‘(ii) the Administrator or a State to 

22 authorize a schedule of compliance that ex23 tends beyond the date of expiration of a 

24 permit term if the schedule of compliance 

25 meets the requirements of section 122.47 


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1 of title 40, Code of Federal Regulations 

2 (as in effect on the date of enactment of 

3 this subsection). 

4 ‘‘(5) CLARIFICATION OF STATE AUTHORITY.— 

5 ‘‘(A) IN GENERAL.—Nothing in section 

6 301(b)(1)(C) precludes a State from author7 izing in the water quality standards of the 

8 State the issuance of a schedule of compliance 

9 to meet water quality-based effluent limitations 

10 in permits that incorporate provisions of an in11 tegrated plan. 

12 ‘‘(B) TRANSITION RULE.—In any case in 

13 which a discharge is subject to a judicial order 

14 or consent decree as of the date of enactment 

15 of the Water Infrastructure Flexibility Act re16 solving an enforcement action under this Act, 

17 any schedule of compliance issued pursuant to 

18 an authorization in a State water quality stand19 ard shall not revise or otherwise affect a sched20 ule of compliance in that order or decree unless 

21 the order or decree is modified by agreement of 

22 the parties and the court.’’. 

23 (b) MUNICIPAL OMBUDSMAN.— 


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1 (1) ESTABLISHMENT.—There is established 

2 within the Office of the Administrator an Office of 

3 the Municipal Ombudsman. 

4 (2) GENERAL DUTIES.—The duties of the mu5 nicipal ombudsman shall include the provision of— 

6 (A) technical assistance to municipalities 

7 seeking to comply with the Federal Water Pol8 lution Control Act (33 U.S.C. 1251 et seq.) and 

9 the Safe Drinking Water Act (42 U.S.C. 300f 

10 et seq.); and 

11 (B) information to the Administrator to 

12 help the Administrator ensure that agency poli13 cies are implemented by all offices of the Envi14 ronmental Protection Agency, including regional 

15 offices. 

16 (3) ACTIONS REQUIRED.—The municipal om17 budsman shall work with appropriate offices at the 

18 headquarters and regional offices of the Environ19 mental Protection Agency to ensure that the munici20 pality seeking assistance is provided information— 

21 (A) about available Federal financial as22 sistance for which the municipality is eligible; 

23 (B) about flexibility available under the 

24 Federal Water Pollution Control Act (33 U.S.C. 


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1 1251 et seq.) and, if applicable, the Safe Drink2 ing Water Act (42 U.S.C. 300f et seq.); and 

3 (C) regarding the opportunity to develop 

4 an integrated plan, as defined in section 

5 402(s)(1)(B) of the Federal Water Pollution 

6 Control Act (as added by subsection (a)). 

7 (4) PRIORITY.—In carrying out paragraph (3), 

8 the municipal ombudsman shall give priority to any 

9 municipality that demonstrates affordability con10 cerns relating to compliance with the Federal Water 

11 Pollution Control Act (33 U.S.C. 1251 et seq.) or 

12 the Safe Drinking Water Act (42 U.S.C. 300f et 

13 seq.). 

14 (5) INFORMATION SHARING.—The municipal 

15 ombudsman shall publish on the website of the Envi16 ronmental Protection Agency— 

17 (A) general information relating to— 

18 (i) the technical assistance referred to 

19 in paragraph (2)(A); 

20 (ii) the financial assistance referred to 

21 in paragraph (3)(A); 

22 (iii) the flexibility referred to in para23 graph 3(B); and 


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1 (iv) any resources related to inte2 grated plans developed by the Adminis3 trator; and 

4 (B) a copy of each permit, order, or judi5 cial consent decree that implements or incor6 porates an integrated plan. 

7 (c) MUNICIPAL ENFORCEMENT.—Section 309 of the 

8 Federal Water Pollution Control Act (33 U.S.C. 1319) is 

9 amended by adding at the end the following: 

10 ‘‘(h) IMPLEMENTATION OF INTEGRATED PLANS

11 THROUGH ENFORCEMENT TOOLS.— 

12 ‘‘(1) IN GENERAL.—In conjunction with an en13 forcement action under subsection (a) or (b) relating 

14 to municipal discharges, the Administrator shall in15 form a municipality of the opportunity to develop an 

16 integrated plan, as defined in section 402(s). 

17 ‘‘(2) MODIFICATION.—Any municipality under 

18 an administrative order under subsection (a) or set19 tlement agreement (including a judicial consent de20 cree) under subsection (b) that has developed an in21 tegrated plan consistent with section 402(s) may re22 quest a modification of the administrative order or 

23 settlement agreement based on that integrated 

24 plan.’’. 


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1 (d) REPORT TO CONGRESS.—Not later than 2 years 

2 after the date of enactment of this Act, the Administrator 

3 shall submit to the Committee on Environment and Public 

4 Works of the Senate and the Committee on Transpor5 tation and Infrastructure of the House of Representatives 

6 and make publicly available a report on each integrated 

7 plan developed and implemented through a permit, order, 

8 or judicial consent decree since the date of publication of 

9 the ‘‘Integrated Municipal Stormwater and Wastewater 

10 Planning Approach Framework’’ issued by the Environ11 mental Protection Agency and dated June 5, 2012, includ12 ing a description of the control measures, levels of control, 

13 estimated costs, and compliance schedules for the require14 ments implemented through an integrated plan. 

15 SEC. 4. GREEN INFRASTRUCTURE PROMOTION. 

16 Title V of the Federal Water Pollution Control Act 

17 (33 U.S.C. 1361 et seq.) is amended— 

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

19 1251 note) as section 520; and 

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

21 1377) the following: 

22 ‘‘SEC. 519. ENVIRONMENTAL PROTECTION AGENCY GREEN 

23 INFRASTRUCTURE PROMOTION. 

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

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


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1 Compliance Assurance, the Office of Research and Devel2 opment, and the Office of Policy of the Environmental 

3 Protection Agency promote the use of green infrastructure 

4 in and coordinate the integration of green infrastructure 

5 into, permitting programs, planning efforts, research, 

6 technical assistance, and funding guidance. 

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

8 the Office of Water— 

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

10 the programs of the Environmental Protection Agen11 cy; and 

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

13 green infrastructure with— 

14 ‘‘(A) other Federal departments and agen15 cies; 

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

17 and 

18 ‘‘(C) the private sector. 

19 ‘‘(c) REGIONAL GREEN INFRASTRUCTURE PRO20 MOTION.—The Administrator shall direct each regional of21 fice of the Environmental Protection Agency, as appro22 priate based on local factors, and consistent with the re23 quirements of this Act, to promote and integrate the use 

24 of green infrastructure within the region that includes— 


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1 ‘‘(1) outreach and training regarding green in2 frastructure implementation for State, tribal, and 

3 local governments, tribal communities, and the pri4 vate sector; and 

5 ‘‘(2) the incorporation of green infrastructure 

6 into permitting and other regulatory programs, 

7 codes, and ordinance development, including the re8 quirements under consent decrees and settlement 

9 agreements in enforcement actions. 

10 ‘‘(d) GREEN INFRASTRUCTURE INFORMATION SHAR11 ING.—The Administrator shall promote green infrastruc12 ture information sharing, including through an Internet 

13 website, to share information with, and provide technical 

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

15 communities, the private sector, and the public regarding 

16 green infrastructure approaches for— 

17 ‘‘(1) reducing water pollution; 

18 ‘‘(2) protecting water resources; 

19 ‘‘(3) complying with regulatory requirements; 

20 and 

21 ‘‘(4) achieving other environmental, public 

22 health, and community goals.’’. 

23 SEC. 5. FINANCIAL CAPABILITY GUIDANCE. 

24 (a) DEFINITIONS.—In this section: 


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1 (1) AFFORDABILITY.—The term ‘‘affordability’’ 

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

3 measure of whether an individual customer or house4 hold can pay the bill without undue hardship or un5 reasonable sacrifice in the essential lifestyle or 

6 spending patterns of the individual or household, as 

7 determined by the Administrator. 

8 (2) FINANCIAL CAPABILITY.—The term ‘‘finan9 cial capability’’ means the financial capability of a 

10 community to make investments necessary to make 

11 water quality or drinking water improvements. 

12 (3) GUIDANCE.—The term ‘‘guidance’’ means 

13 the guidance published by the Administrator entitled 

14 ‘‘Combined Sewer Overflows—Guidance for Finan15 cial Capability Assessment and Schedule Develop16 ment’’ and dated February 1997, as applicable to 

17 the combined sewer overflows and sanitary sewer 

18 overflows guidance published by the Administrator 

19 entitled ‘‘Financial Capability Assessment Frame20 work’’ and dated November 24, 2014. 

21 (b) USE OF MEDIAN HOUSEHOLD INCOME.—The 

22 Administrator shall not use median household income as 

23 the sole indicator of affordability for a residential house24 hold. 

25 (c) REVISED GUIDANCE.— 


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

2 the date of completion of the National Academy of 

3 Public Administration study to establish a definition 

4 and framework for community affordability required 

5 by Senate Report 114–70, accompanying S. 1645 

6 (114th Congress), the Administrator shall revise the 

7 guidance described in subsection (a)(3). 

8 (2) USE OF GUIDANCE.—Beginning on the date 

9 on which the revised guidance referred to in para10 graph (1) is finalized, the Administrator shall use 

11 the revised guidance in lieu of the guidance de12 scribed in subsection (a)(3). 

13 (d) CONSIDERATION AND CONSULTATION.— 

14 (1) CONSIDERATION.—In revising the guidance, 

15 the Administrator shall consider— 

16 (A) the recommendations of the study re17 ferred to in subsection (c) and any other rel18 evant study, as determined by the Adminis19 trator; 

20 (B) local economic conditions, including 

21 site-specific local conditions that should be 

22 taken into consideration in analyzing financial 

23 capability; 

24 (C) other essential community investments; 


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1 (D) potential adverse impacts on distressed 

2 populations, including the percentage of low-in3 come ratepayers within the service area of a 

4 utility and impacts in communities with dis5 parate economic conditions throughout the en6 tire service area of a utility; 

7 (E) the degree to which rates of low-in8 come consumers would be affected by water in9 frastructure investments and the use of rate 

10 structures to address the rates of low-income 

11 consumers; 

12 (F) an evaluation of an array of factors, 

13 the relative importance of which may vary 

14 across regions and localities; and 

15 (G) the appropriate weight for economic, 

16 public health, and environmental benefits asso17 ciated with improved water quality. 

18 (2) CONSULTATION.—Any revised guidance 

19 issued to replace the guidance shall be developed in 

20 consultation with stakeholders. 

21 (e) PUBLICATION AND SUBMISSION.— 

22 (1) IN GENERAL.—On completion of the revi23 sion of the guidance, the Administrator shall publish 

24 in the Federal Register and submit to the Com25 mittee on Environment and Public Works of the 


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1 Senate and the Committee on Transportation and 

2 Infrastructure of the House of Representatives the 

3 revised guidance. 

4 (2) EXPLANATION.—If the Administrator 

5 makes a determination not to follow one or more 

6 recommendations of the study referred to in sub7 section (c)(1), the Administrator shall include in the 

8 publication and submission under paragraph (1) an 

9 explanation of that decision. 

10 (f) EFFECT.—Nothing in this section preempts or 

11 interferes with any obligation to comply with any Federal 

12 law, including the Federal Water Pollution Control Act 

13 (33 U.S.C. 1251 et seq.). 

Æ 


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