II 

110TH CONGRESS 

2D SESSION S. 3443 

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 

AUGUST 1, 2008 

Mr. VOINOVICH (for himself and Mr. BROWN) 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’’. 

4 SEC. 2. SEWER OVERFLOW CONTROL GRANTS. 

5 (a) SEWER OVERFLOW CONTROL GRANTS.—Section 

6 221 of the Federal Water Pollution Control Act (33 

7 U.S.C. 1301) is amended by striking subsections (a) 

8 through (g) and inserting the following: 

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

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

11 providing grants to a municipality or municipal enti12 ty for use in planning, designing, and constructing 

13 treatment works to intercept, transport, control, or 

14 treat municipal combined sewer overflows and sani15 tary sewer overflows; and 

16 ‘‘(2) make a grant directly to a municipality or 

17 municipal entity for the purposes described in para18 graph (1). 

19 ‘‘(b) PRIORITIZATION.—In selecting from among mu20 nicipalities applying for grants under this section, a State 

21 or the Administrator shall give priority to an applicant 

22 that is a financially distressed community, as determined 

23 by the applicable State under subsection (c). 

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

25 community is a distressed community for the purposes of 

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


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1 the criteria described in section 3(b)(2) of the Clean Water 

2 Affordability Act. 

3 ‘‘(d) COST-SHARING.— 

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

5 the cost of any project or activity carried out using 

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

7 be not less than 75 percent. 

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

9 share of the cost of any project or activity carried 

10 out using funds from a grant made under subsection 

11 (a) may include— 

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

13 funds and in-kind services; and 

14 ‘‘(B) notwithstanding section 603, finan15 cial assistance, including loans, from a State 

16 water pollution control revolving fund. 

17 ‘‘(e) ADMINISTRATIVE REQUIREMENTS.— 

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

19 project that receives grant assistance under sub20 section (a) shall be carried out subject to the same 

21 requirements as a project that receives assistance 

22 from a State water pollution control revolving fund 

23 established pursuant to title VI. 

24 ‘‘(2) DETERMINATION OF GOVERNOR.—The re25 quirement described in paragraph (1) shall not apply 


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1 to a project that receives grant assistance under 

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

3 State in which the project is located determines that 

4 a requirement described in title VI is inconsistent 

5 with the purposes of this section. 

6 ‘‘(f) FUNDING.— 

7 ‘‘(1) AUTHORIZATION OF APPROPRIATIONS.— 

8 There are authorized to be appropriated to carry out 

9 this section— 

10 ‘‘(A) $250,000,000 for fiscal year 2009; 

11 ‘‘(B) $300,000,000 for fiscal year 2010; 

12 ‘‘(C) $350,000,000 for fiscal year 2011; 

13 ‘‘(D) $400,000,000 for fiscal year 2012; 

14 and 

15 ‘‘(E) $500,000,000 for fiscal year 2013. 

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

17 authorized to be appropriated to carry out this sec18 tion under paragraph (1) shall remain available until 

19 expended. 

20 ‘‘(g) ALLOCATION OF FUNDS.— 

21 ‘‘(1) FISCAL YEAR 2009.—For fiscal year 2009, 

22 subject to subsection (h), the Administrator shall 

23 use the amounts appropriated to carry out this sec24 tion under subsection (f)(1) to provide grants to mu25 nicipalities and municipal entities under subsection 


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1 (a)(2) in accordance with the priority criteria de2 scribed in subsection (b). 

3 ‘‘(2) FISCAL YEAR 2010 AND THEREAFTER.— 

4 For fiscal year 2010 and each fiscal year thereafter, 

5 subject to subsection (h), the Administrator shall 

6 use the amounts appropriated to carry out this sec7 tion under subsection (f)(1) to provide grants to 

8 States under subsection (a)(1) in accordance with a 

9 formula that— 

10 ‘‘(A) shall be established by the Adminis11 trator, after providing notice and an oppor12 tunity for public comment; and 

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

14 share of the amounts based on the total needs 

15 of the State for municipal combined sewer over16 flow controls and sanitary sewer overflow con17 trols, as identified in the most recent survey— 

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

19 ‘‘(ii) included in a report required 

20 under section 516(a).’’. 

21 (b) REPORTS.—Section 221(i) of the Federal Water 

22 Pollution Control Act (33 U.S.C. 1301(i)) is amended in 

23 the first sentence by striking ‘‘2003’’ and inserting 

24 ‘‘2010’’. 


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1 SEC. 3. UPDATING OF GUIDANCE. 

2 (a) DEFINITIONS.—In this section: 

3 (1) ADMINISTRATOR.—The term ‘‘Adminis4 trator’’ means the Administrator of the Environ5 mental Protection Agency. 

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

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

8 measure of whether an individual customer or house9 hold can pay the bill without undue hardship or un10 reasonable sacrifice in the essential lifestyle or 

11 spending patterns of the individual or household, as 

12 determined by the Administrator. 

13 (3) FINANCIAL CAPABILITY.—The term ‘‘finan14 cial capability’’ means the financial capability of a 

15 community to make investments necessary to make 

16 water quality-related improvements, taking into con17 sideration the criteria described in subsection 

18 (b)(2)(A). 

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

20 the guidance published by the Administrator entitled 

21 ‘‘Combined Sewer Overflows—Guidance for Finan22 cial Capability Assessment and Schedule Develop23 ment’’ and dated February 1997, as applicable to 

24 combined sewer overflows and sanitary sewer over25 flows. 

26 (b) UPDATING.— 


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

2 the date of enactment of this Act, the Administrator 

3 shall update the guidance to ensure that the evalua4 tions by the Administrator of financial capability as5 sessment and schedule development meet the criteria 

6 described in paragraph (2). 

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

8 paragraph are that, under the updated guidance— 

9 (A) in assessing financial capability of a 

10 community— 

11 (i) greater emphasis should be placed 

12 on local economic conditions; 

13 (ii) for regional systems, consideration 

14 should be given to the economic conditions 

15 of political jurisdictions and significant de16 mographic groups within each region; 

17 (iii) prescriptive formulas for use in 

18 calculating financial capability and thresh19 olds for expenditure should not be consid20 ered to be the only indicator of the finan21 cial capability of a community; 

22 (iv) site-specific local conditions 

23 should be taken into consideration in ana24 lyzing financial capability; 


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1 (v) a single measure of financial capa2 bility or affordability (such as median 

3 household income) should be viewed in the 

4 context of other economic measures, rather 

5 than as a threshold to be achieved; and 

6 (vi)(I) consideration should be given 

7 to the economic outlook of a community, 

8 including the potential impact of program 

9 requirements over time, in the development 

10 of implementation schedules; and 

11 (II) the assessment should take into 

12 consideration other essential community 

13 investments relating to water quality im14 provements; 

15 (B) with respect to the timing of imple16 mentation of water quality-related improve17 ments— 

18 (i) environmental improvement imple19 mentation schedules should be structured 

20 to mitigate the potential adverse impact on 

21 distressed populations resulting from the 

22 costs of the improvements; and 

23 (ii) implementation schedules should 

24 reflect local community financial conditions 

25 and economic impacts; 


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1 (C) with respect to implementation of 

2 methodologies— 

3 (i) a determination of local financial 

4 capability may be achieved through an 

5 evaluation of an array of factors the rel6 ative importance of which may vary across 

7 regions and localities; and 

8 (ii) an appropriate methodology 

9 should give consideration to such various 

10 factors as are appropriate to recognize the 

11 prevailing and projected economic concerns 

12 in a community; and 

13 (D) the residential indicator should be re14 vised to include— 

15 (i) a consideration of costs imposed 

16 upon ratepayers for essential utilities; 

17 (ii) increased consideration and quan18 tification of local community-imposed costs 

19 in regional systems; 

20 (iii) a mechanism to assess impacts on 

21 communities with disparate economic con22 ditions throughout the entire service area 

23 of a utility; 

24 (iv) a consideration of the industrial 

25 and population trends of a community; 


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1 (v) recognition that— 

2 (I) the median household income 

3 of a service area reflects a numerical 

4 median rather than the distribution of 

5 incomes within the service area; and 

6 (II) more representative methods 

7 of determining affordability, such as 

8 shelter costs, essential utility pay9 ments, and State and local tax efforts, 

10 should be considered; 

11 (vi) a consideration of low-income 

12 ratepayer percentages; and 

13 (vii) impacts relating to program de14 livery, such as water quality infrastructure 

15 market saturation and program manage16 ment. 

17 (3) IMPLEMENTATION.—The updated guidance 

18 should indicate that, in a case in which a previously19 approved long-term control plan or associated en20 forceable agreement allows for modification of the 

21 plan or terms of the agreement (including financial 

22 capability considerations), and all parties are in 

23 agreement that a change is needed or that the plan 

24 or agreement contains a reopener provision to ad25 dress changes in the economic or financial status of 


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1 the community since the effective date of the plan or 

2 agreement, reconsideration and modification of fi3 nancial capability determinations and implementa4 tion schedules based on the criteria described in 

5 paragraph (2) is appropriate. 

6 (c) PUBLICATION AND SUBMISSION.—Upon comple7 tion of the updating of guidance under subsection (b), the 

8 Administrator shall publish in the Federal Register and 

9 submit to the Committee on Environment and Public 

10 Works of the Senate and the Committee on Transpor11 tation and Infrastructure of the House of Representatives 

12 the updated guidance. 

13 (d) AUTHORIZATION OF APPROPRIATIONS.—There 

14 are authorized to be appropriated such sums as are nec15 essary to carry out this section. 

Æ 


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