I 
113TH CONGRESS 
1ST SESSION 
H. R. 202 
To amend the Federal Water Pollution Control Act to limit citizens suits 
against publicly owned treatment works, to provide for defenses, to ex-
tend the period of a permit, to limit attorneys fees, and for other 
purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JANUARY 4, 2013 
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. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. LIMITATION ON CITIZEN SUIT PROVISION. 
Section 505 of the Federal Water Pollution Control 
Act (33 U.S.C. 1365) is amended— 
(1) in subsection (a) by striking ‘‘subsection 
(b)’’ and inserting ‘‘subsections (b) and (i)’’; and 
(2) by adding at the end the following: 
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‘‘(i) LIMITATION FOR POTW SUITS.— 
‘‘(1) IN
GENERAL.—No action may be com-
menced under subsection (a)(1) by a citizen with re-
spect to a publicly owned treatment works to enforce 
an effluent standard or limitation under this Act or 
an order issued by the Administrator or a State with 
respect to such a standard or limitation unless the 
publicly owned treatment works is in significant non- 
compliance, as defined in the Environmental Protec-
tion Agency’s December 12, 1996, guidance docu-
ment entitled ‘A General Design for SNC Redefini-
tion Enhancement in PCS’. 
‘‘(2) EXCEPTION.—Notwithstanding paragraph 
(1), no action may be commenced under subsection 
(a)(1) with respect to a publicly owned treatment 
works that is in significant non-compliance based on 
a manual designation, as defined in the Environ-
mental Protection Agency’s December 12, 1996, 
guidance document entitled ‘A General Design for 
SNC Redefinition Enhancement in PCS’.’’. 
SEC. 2. AFFIRMATIVE DEFENSES. 
Section 309 of the Federal Water Pollution Control 
Act (33 U.S.C. 1319) is amended by adding at the end 
the following: 
‘‘(h) AFFIRMATIVE DEFENSES.— 
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‘‘(1) IN GENERAL.—There shall be no liability 
under this Act for a person otherwise liable for the 
unlawful discharge of a pollutant from a publicly 
owned treatment works who can establish by a pre-
ponderance of the evidence that the immediate cause 
of the unlawful discharge and any damages was— 
‘‘(A) an act of God; 
‘‘(B) an act of war; 
‘‘(C) an act or omission of a third party 
other than an employee or agent of the defend-
ant, or than one whose act or omission occurs 
in connection with a contractual relationship, 
existing directly or indirectly, with the defend-
ant, if the defendant establishes by a prepon-
derance of the evidence that— 
‘‘(i) he exercised due care in light of 
all relevant facts and circumstances; and 
‘‘(ii) he took precautions against fore-
seeable acts or omissions of any such third 
party and the consequences that could 
foreseeably result from such acts or omis-
sions; or 
‘‘(D) any combination of the foregoing 
subparagraphs. 
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‘‘(2) ADDITIONAL DEFENSES.—All general de-
fenses, affirmative defenses, and bars to prosecution 
that may apply with respect to other Federal crimi-
nal offenses may apply under this Act and shall be 
determined by the courts of the United States ac-
cording to the principles of common law as they may 
be interpreted in the light of reason and experience. 
Concepts of justification and excuse applicable under 
this section may be developed in the light of reason 
and experience.’’. 
SEC. 3. WAITING PERIOD. 
In implementing the Federal Water Pollution Control 
Act, the Administrator of the Environmental Protection 
Agency or a State, as the case may be, shall provide a 
60-day waiting period between the notice of a violation of 
the Act by a publicly owned treatment works and the 
issuance of a civil penalty. If within such 60-day period 
the publicly owned treatment works submits a viable plan 
for correcting the non-compliance that is the subject of 
the notice and thereafter diligently implements such plan, 
the Administrator shall not assess a civil penalty for the 
notice of violation. 
SEC. 4. PERMIT LENGTH. 
(a) IN GENERAL.—Notwithstanding any other law, 
any permit issued to the owner or operator of a publicly 
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owned treatment works by the Administrator of the Envi-
ronmental Protection Agency or a State, as the case may 
be, to discharge a pollutant under the Federal Water Pol-
lution Control Act shall have a 15-year term. 
(b) 
CONFORMING
AMENDMENT.—Section 
402(b)(1)(B) of the Federal Water Pollution Control Act 
is amended by striking ‘‘five years’’ and inserting ‘‘5 
years, or, in the case of a publicly owned treatment works, 
15 years’’. 
SEC. 5. ATTORNEY’S FEES. 
Section 505(d) of the Federal Water Pollution Con-
trol Act (33 U.S.C. 1365(d)) is amended by inserting after 
the first sentence the following: ‘‘With respect to an action 
involving a publicly owned treatment works, the court, in 
determining whether the costs of litigation (including at-
torney and expert witness fees) are reasonable, shall con-
sider the prevailing rate of such fees in the community 
where the publicly owned treatment works is located.’’. 
SEC. 6. COST BENEFIT ANALYSIS. 
Notwithstanding any other law, any new or increased 
treatment requirement associated with a permit issued to 
the owner or operator of a publicly owned treatment works 
by the Administrator of the Environmental Protection 
Agency or a State, as the case may be, to discharge a 
pollutant under the Federal Water Pollution Control Act 
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shall be subject to a cost-benefit analysis performed by 
the Administrator or the State to ensure that the costs 
imposed on such owner or operator to comply with such 
new or increased requirement are outweighed by the ben-
efit to the public of the new or increased requirement. 
Æ 
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