II 

113TH CONGRESS 

2D SESSION S. 2797 

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 

SEPTEMBER 11, 2014 

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 of 2014’’. 

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— 

23 ‘‘(1) an applicant that is a financially distressed 

24 community, as determined by the applicable State 

25 under subsection (c); and 


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1 ‘‘(2) an applicant that discharges into a water 

2 body, or water body segment, impaired for nutrients 

3 or related pollutant indicators. 

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

5 community is a distressed community for the purposes of 

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

7 the criteria described in section 7(b)(2)(A) of the Clean 

8 Water Affordability Act of 2014. 

9 ‘‘(d) COST-SHARING.— 

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

11 the cost of any project or activity carried out using 

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

13 be not less than 75 percent. 

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

15 share of the cost of any project or activity carried 

16 out using funds from a grant made under subsection 

17 (a) may include— 

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

19 funds and in-kind services; and 

20 ‘‘(B) notwithstanding section 603, finan21 cial assistance, including loans, from a State 

22 water pollution control revolving fund. 

23 ‘‘(e) ADMINISTRATIVE REQUIREMENTS.— 

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

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1 section (a) shall be carried out subject to the same 

2 requirements as a project that receives assistance 

3 from a State water pollution control revolving fund 

4 established pursuant to title VI. 

5 ‘‘(2) DETERMINATION OF GOVERNOR.—The re6 quirement described in paragraph (1) shall not apply 

7 to a project that receives grant assistance under 

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

9 State in which the project is located determines that 

10 a requirement described in title VI is inconsistent 

11 with the purposes of this section. 

12 ‘‘(f) ALLOCATION OF FUNDS.— 

13 ‘‘(1) FISCAL YEAR 2015.—For fiscal year 2015, 

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

15 the amounts made available to carry out this section 

16 under subsection (i)(1) to provide grants to munici17 palities and municipal entities under subsection 

18 (a)(2) in accordance with the priority criteria de19 scribed in subsection (b). 

20 ‘‘(2) FISCAL YEAR 2016 AND THEREAFTER.— 

21 For fiscal year 2016 and each fiscal year thereafter, 

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

23 the amounts appropriated to carry out this section 

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


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1 under subsection (a)(1) in accordance with a for2 mula that— 

3 ‘‘(A) shall be established by the Adminis4 trator, after providing notice and an oppor5 tunity for public comment; and 

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

7 share of the amounts based on the total needs 

8 of the State for municipal combined sewer over9 flow controls and sanitary sewer overflow con10 trols, as identified in the most recent survey— 

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

12 ‘‘(ii) included in a report required 

13 under section 516(a).’’; 

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

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

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

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

18 and inserting ‘‘2015’’; and 

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

20 ‘‘(i) FUNDING.— 

21 ‘‘(1) AUTHORIZATION OF APPROPRIATIONS.— 

22 There are authorized to be appropriated to carry out 

23 this section— 

24 ‘‘(A) $250,000,000 for fiscal year 2015; 

25 ‘‘(B) $300,000,000 for fiscal year 2016; 


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1 ‘‘(C) $350,000,000 for fiscal year 2017; 

2 ‘‘(D) $400,000,000 for fiscal year 2018; 

3 and 

4 ‘‘(E) $500,000,000 for fiscal year 2019. 

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

6 authorized to be appropriated under paragraph (1) 

7 shall remain available until expended.’’. 

8 SEC. 3. INTEGRATED PERMITTING PROCESS. 

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

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

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

12 ‘‘(6) INTEGRATED PERMITS.— 

13 ‘‘(A) DEFINITION OF PUBLICLY OWNED

14 PERMITTEE.—In this paragraph, the term ‘pub15 licly owned permittee’ means— 

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

17 section 212) that is publicly owned; and 

18 ‘‘(ii) a municipal separate storm sewer 

19 system referred to in this section. 

20 ‘‘(B) PLANNING APPROACH.—The Admin21 istrator shall establish a comprehensive and in22 tegrated planning approach to the obligations 

23 under this section of a publicly owned per24 mittee— 


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1 ‘‘(i) under which permit obligations 

2 may be implemented according to a sched3 ule that— 

4 ‘‘(I) accounts for the financial ca5 pability of the publicly owned per6 mittee; 

7 ‘‘(II) prioritizes permit obliga8 tions according to the most cost-effec9 tive and environmentally beneficial 

10 outcomes; 

11 ‘‘(III) accounts for the pre12 existing maintenance, operational, and 

13 regulatory obligations of the publicly 

14 owned permittee under this section; 

15 and 

16 ‘‘(IV) enables the publicly owned 

17 permittee to implement innovative ap18 proaches to meet those obligations; 

19 and 

20 ‘‘(ii) that accounts for changed cir21 cumstances in the obligations of the pub22 licly owned permittee, such as— 

23 ‘‘(I) new innovative treatment 

24 approaches; 


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1 ‘‘(II) new regulatory require2 ments; and 

3 ‘‘(III) changes in financial capa4 bility.’’. 

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

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

7 1342(b)(1)(B)) is amended by inserting before the semi8 colon at the end the following: ‘‘, except that a permit with 

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

10 may be approved if the permittee has an approved inte11 grated plan established under subsection (a)(6)’’. 

12 SEC. 4. COMBINED SEWAGE OVERFLOW LONG-TERM CON13 TROL PLAN. 

14 Section 402(q) of the Federal Water Pollution Con15 trol Act (33 U.S.C. 1342(q)) is amended by adding at the 

16 end the following: 

17 ‘‘(4) COMBINED SEWAGE OVERFLOW LONG18 TERM CONTROL PLAN.— 

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

20 shall amend the CSO control policy to allow a 

21 publicly owned treatment work that has an ap22 proved long-term control plan to modify the 

23 plan to incorporate green infrastructure and en24 ergy-efficient technologies on a showing that 

25 the use of the technologies can cost-effectively 


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1 help to meet the terms of the combined sewer 

2 overflow compliance obligations of the treat3 ment work. 

4 ‘‘(B) COMPLIANCE.—The Administrator 

5 shall allow a publicly owned treatment work 30 

6 years to meet compliance obligations under 

7 long-term control plans modified under this 

8 paragraph.’’. 

9 SEC. 5. ENVIRONMENTAL PROTECTION AGENCY GREEN IN10 FRASTRUCTURE PROMOTION. 

11 Title V of the Federal Water Pollution Control Act 

12 (33 U.S.C. 1361 et seq.) is amended— 

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

14 1251 note) as section 520; and 

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

16 1377) the following: 

17 ‘‘SEC. 519. ENVIRONMENTAL PROTECTION AGENCY GREEN 

18 INFRASTRUCTURE PROMOTION. 

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

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

21 Compliance Assurance, the Office of Research and Devel22 opment, and the Office of Policy of the Environmental 

23 Protection Agency promote the use of green infrastructure 

24 in and coordinate the integration of green infrastructure 


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1 into, permitting programs, planning efforts, research, 

2 technical assistance, and funding guidance. 

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

4 the Office of Water— 

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

6 the programs of the Environmental Protection Agen7 cy; and 

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

9 green infrastructure with— 

10 ‘‘(A) other Federal departments and agen11 cies; 

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

13 and 

14 ‘‘(C) the private sector. 

15 ‘‘(c) REGIONAL GREEN INFRASTRUCTURE PRO16 MOTION.—The Administrator shall direct each regional of17 fice of the Environmental Protection Agency, as appro18 priate based on local factors, to promote and integrate the 

19 use of green infrastructure within the region that in20 cludes— 

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

22 and designing the green infrastructure; 

23 ‘‘(2) outreach and training regarding green in24 frastructure implementation for State, tribal, and 


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1 local governments, tribal communities, and the pri2 vate sector; and 

3 ‘‘(3) the incorporation of green infrastructure 

4 into permitting and other regulatory programs, 

5 codes, and ordinance development, including the re6 quirements under consent decrees and settlement 

7 agreements in enforcement actions. 

8 ‘‘(d) GREEN INFRASTRUCTURE INFORMATION-SHAR9 ING.—The Administrator shall promote green infrastruc10 ture information-sharing, including through an Internet 

11 website, to share information with, and provide technical 

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

13 communities, the private sector, and the public regarding 

14 green infrastructure approaches for— 

15 ‘‘(1) reducing water pollution; 

16 ‘‘(2) protecting water resources; 

17 ‘‘(3) complying with regulatory requirements; 

18 and 

19 ‘‘(4) achieving other environmental, public 

20 health, and community goals. 

21 ‘‘(e) GREEN INFRASTRUCTURE PORTFOLIO STAND22 ARD.—The Administrator, in collaboration with State, 

23 tribal, and local water resource managers, shall establish 

24 voluntary measurable goals, to be known as the ‘green in25 frastructure portfolio standard’, to increase the percentage 


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1 of annual water managed by eligible entities that use 

2 green infrastructure.’’. 

3 SEC. 6. UPDATING OF GUIDANCE. 

4 (a) DEFINITIONS.—In this section: 

5 (1) ADMINISTRATOR.—The term ‘‘Adminis6 trator’’ means the Administrator of the Environ7 mental Protection Agency. 

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

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

10 measure of whether an individual customer or house11 hold can pay the bill without undue hardship or un12 reasonable sacrifice in the essential lifestyle or 

13 spending patterns of the individual or household, as 

14 determined by the Administrator. 

15 (3) FINANCIAL CAPABILITY.—The term ‘‘finan16 cial capability’’ means the financial capability of a 

17 community to make investments necessary to make 

18 water quality-related improvements, taking into con19 sideration the criteria described in subsection 

20 (b)(2)(A). 

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

22 the guidance published by the Administrator entitled 

23 ‘‘Combined Sewer Overflows—Guidance for Finan24 cial Capability Assessment and Schedule Develop25 ment’’ and dated February 1997, as applicable to 


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1 combined sewer overflows and sanitary sewer over2 flows. 

3 (b) UPDATING.— 

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

5 the date of enactment of this Act, the Administrator 

6 shall update the guidance to ensure that the evalua7 tions by the Administrator of financial capability as8 sessment and schedule development meet the criteria 

9 described in paragraph (2). 

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

11 paragraph are that, under the updated guidance— 

12 (A) in assessing financial capability of a 

13 community— 

14 (i) greater emphasis should be placed 

15 on local economic conditions; 

16 (ii) for regional systems, consideration 

17 should be given to the economic conditions 

18 of political jurisdictions and significant de19 mographic groups within each region; 

20 (iii) prescriptive formulas for use in 

21 calculating financial capability and thresh22 olds for expenditure should not be consid23 ered to be the only indicator of the finan24 cial capability of a community; 


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1 (iv) site-specific local conditions 

2 should be taken into consideration in ana3 lyzing financial capability; 

4 (v) a single measure of financial capa5 bility or affordability (such as median 

6 household income) should be viewed in the 

7 context of other economic measures, rather 

8 than as a threshold to be achieved; and 

9 (vi)(I) consideration should be given 

10 to the economic outlook of a community, 

11 including the potential impact of program 

12 requirements over time, in the development 

13 of implementation schedules; and 

14 (II) the assessment should take into 

15 consideration other essential community 

16 investments relating to water quality im17 provements; 

18 (B) with respect to the timing of imple19 mentation of water quality-related improve20 ments— 

21 (i) environmental improvement imple22 mentation schedules should be structured 

23 to mitigate the potential adverse impact on 

24 distressed populations resulting from the 

25 costs of the improvements; and 


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1 (ii) implementation schedules should 

2 reflect local community financial conditions 

3 and economic impacts; 

4 (C) with respect to implementation of 

5 methodologies— 

6 (i) a determination of local financial 

7 capability may be achieved through an 

8 evaluation of an array of factors the rel9 ative importance of which may vary across 

10 regions and localities; and 

11 (ii) an appropriate methodology 

12 should give consideration to such various 

13 factors as are appropriate to recognize the 

14 prevailing and projected economic concerns 

15 in a community; and 

16 (D) the residential indicator should be re17 vised to include— 

18 (i) a consideration of costs imposed 

19 upon ratepayers for essential utilities; 

20 (ii) increased consideration and quan21 tification of local community-imposed costs 

22 in regional systems; 

23 (iii) a mechanism to assess impacts on 

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1 ditions throughout the entire service area 

2 of a utility; 

3 (iv) a consideration of the industrial 

4 and population trends of a community; 

5 (v) recognition that— 

6 (I) the median household income 

7 of a service area reflects a numerical 

8 median rather than the distribution of 

9 incomes within the service area; and 

10 (II) more representative methods 

11 of determining affordability, such as 

12 shelter costs, essential utility pay13 ments, and State and local tax efforts, 

14 should be considered; 

15 (vi) cash-flow forecasting rather than 

16 forecasting based on a snapshot evaluation 

17 of community financial capability; 

18 (vii) a consideration of low-income 

19 ratepayer percentages; and 

20 (viii) impacts relating to program de21 livery, such as water quality infrastructure 

22 market saturation and program manage23 ment. 

24 (3) IMPLEMENTATION.—The updated guidance 

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


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1 approved long-term control plan or associated en2 forceable agreement allows for modification of the 

3 plan or terms of the agreement (including financial 

4 capability considerations), and all parties are in 

5 agreement that a change is needed or that the plan 

6 or agreement contains a reopener provision to ad7 dress changes in the economic or financial status of 

8 the community since the effective date of the plan or 

9 agreement, reconsideration and modification of fi10 nancial capability determinations and implementa11 tion schedules based on the criteria described in 

12 paragraph (2) are appropriate. 

13 (c) PUBLICATION AND SUBMISSION.—Upon comple14 tion of the updating of guidance under subsection (b), the 

15 Administrator shall publish in the Federal Register and 

16 submit to the Committee on Environment and Public 

17 Works of the Senate and the Committee on Transpor18 tation and Infrastructure of the House of Representatives 

19 the updated guidance. 

20 (d) AUTHORIZATION OF APPROPRIATIONS.—There 

21 are authorized to be appropriated such sums as are nec22 essary to carry out this section. 

Æ 


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