II Calendar No. 109 115th CONGRESS 1st Session S. 692 [Report No. 115–87] IN THE SENATE OF THE UNITED STATES March 21, 2017 Mrs. Fischer (for herself, Mr. Brown , Mr. Cardin , Mr. Boozman , Mr. Portman , Mr. Blunt , Mr. Booker , Mr. Inhofe , Ms. Klobuchar , and Mr. Donnelly ) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works May 25, 2017 Reported by Mr. Barrasso , with an amendment Strike out all after the enacting clause and insert the part printed in italic 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. Short title This Act may be cited as the Water Infrastructure Flexibility Act . 2. Definition of Administrator In this Act, the term Administrator means the Administrator of the Environmental Protection Agency. 3. Integrated plans (a) Integrated plans Section 402 of the Federal Water Pollution Control Act ( 33 U.S.C. 1342 ) is amended by adding at the end the following: (s) Integrated plan permits (1) Definitions In this subsection: (A) Green infrastructure The term green infrastructure means the range of measures that use plant or soil systems, permeable pavement or other permeable surfaces or substrates, stormwater harvest and reuse, or landscaping to store, infiltrate, or evap­o­trans­pi­rate stormwater and reduce flows to sewer systems or to surface waters. (B) Integrated plan The term integrated plan has the meaning given in Part III of the Integrated Municipal Stormwater and Wastewater Planning Approach Framework, issued by the Environmental Protection Agency and dated June 5, 2012. (C) Municipal discharge (i) In general The term municipal discharge means a discharge from a treatment works (as defined in section 212) or a discharge from a municipal storm sewer under subsection (p). (ii) Inclusion The term municipal discharge includes a discharge of wastewater or storm water collected from multiple municipalities if the discharge is covered by the same permit issued under this section. (2) Integrated plan (A) In general The Administrator (or a State, in the case of a permit program approved under subsection (b)) shall inform a municipal permittee or multiple municipal permittees of the opportunity to develop an integrated plan. (B) Scope of permit incorporating integrated plan A permit issued under this subsection that incorporates an integrated plan may integrate all requirements under this Act addressed in the integrated plan, including requirements relating to— (i) a combined sewer overflow; (ii) a capacity, management, operation, and maintenance program for sanitary sewer collection systems; (iii) a municipal stormwater discharge; (iv) a municipal wastewater discharge; and (v) a water quality-based effluent limitation to implement an applicable wasteload allocation in a total maximum daily load. (3) Compliance schedules (A) In general A permit for a municipal discharge by a municipality that incorporates an integrated plan may include a schedule of compliance, under which actions taken to meet any applicable water quality-based effluent limitation may be implemented over more than 1 permit term if the compliance schedules are authorized by State water quality standards. (B) Inclusion Actions subject to a compliance schedule under subparagraph (A) may include green infrastructure if implemented as part of a water quality-based effluent limitation. (C) Review A schedule of compliance may be reviewed each time the permit is renewed. (4) Existing authorities retained (A) Applicable standards Nothing in this subsection modifies any obligation to comply with applicable technology and water quality-based effluent limitations under this Act. (B) Flexibility Nothing in this subsection reduces or eliminates any flexibility available under this Act, including the authority of— (i) a State to revise a water quality standard after a use attainability analysis under section 131.10(g) of title 40, Code of Federal Regulations (as in effect on the date of enactment of this subsection), subject to the approval of the Administrator under section 303(c); and (ii) the Administrator or a State to authorize a schedule of compliance that extends beyond the date of expiration of a permit term if the schedule of compliance meets the requirements of section 122.47 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this subsection). (5) Clarification of State authority (A) In general Nothing in section 301(b)(1)(C) precludes a State from authorizing in the water quality standards of the State the issuance of a schedule of compliance to meet water quality-based effluent limitations in permits that incorporate provisions of an integrated plan. (B) Transition rule In any case in which a discharge is subject to a judicial order or consent decree as of the date of enactment of the Water Infrastructure Flexibility Act resolving an enforcement action under this Act, any schedule of compliance issued pursuant to an authorization in a State water quality standard shall not revise or otherwise affect a schedule of compliance in that order or decree unless the order or decree is modified by agreement of the parties and the court. . (b) Municipal ombudsman (1) Establishment There is established within the Office of the Administrator an Office of the Municipal Ombudsman. (2) General duties The duties of the municipal ombudsman shall include the provision of— (A) technical assistance to municipalities seeking to comply with the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.) and the Safe Drinking Water Act ( 42 U.S.C. 300f et seq.); and (B) information to the Administrator to help the Administrator ensure that agency policies are implemented by all offices of the Environmental Protection Agency, including regional offices. (3) Actions required The municipal ombudsman shall work with appropriate offices at the headquarters and regional offices of the Environmental Protection Agency to ensure that the municipality seeking assistance is provided information— (A) about available Federal financial assistance for which the municipality is eligible; (B) about flexibility available under the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.) and, if applicable, the Safe Drinking Water Act ( 42 U.S.C. 300f et seq.); and (C) regarding the opportunity to develop an integrated plan, as defined in section 402(s)(1)(B) of the Federal Water Pollution Control Act (as added by subsection (a)). (4) Priority In carrying out paragraph (3), the municipal ombudsman shall give priority to any municipality that demonstrates affordability concerns relating to compliance with the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.) or the Safe Drinking Water Act ( 42 U.S.C. 300f et seq.). (5) Information sharing The municipal ombudsman shall publish on the website of the Environmental Protection Agency— (A) general information relating to— (i) the technical assistance referred to in paragraph (2)(A); (ii) the financial assistance referred to in paragraph (3)(A); (iii) the flexibility referred to in paragraph 3(B); and (iv) any resources related to integrated plans developed by the Administrator; and (B) a copy of each permit, order, or judicial consent decree that implements or incorporates an integrated plan. (c) Municipal enforcement Section 309 of the Federal Water Pollution Control Act ( 33 U.S.C. 1319 ) is amended by adding at the end the following: (h) Implementation of integrated plans through enforcement tools (1) In general In conjunction with an enforcement action under subsection (a) or (b) relating to municipal discharges, the Administrator shall inform a municipality of the opportunity to develop an integrated plan, as defined in section 402(s). (2) Modification Any municipality under an administrative order under subsection (a) or settlement agreement (including a judicial consent decree) under subsection (b) that has developed an integrated plan consistent with section 402(s) may request a modification of the administrative order or settlement agreement based on that integrated plan. . (d) Report to Congress Not later than 2 years after the date of enactment of this Act, the Administrator shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report on each integrated plan developed and implemented through a permit, order, or judicial consent decree since the date of publication of the Integrated Municipal Stormwater and Wastewater Planning Approach Framework issued by the Environmental Protection Agency and dated June 5, 2012, including a description of the control measures, levels of control, estimated costs, and compliance schedules for the requirements implemented through an integrated plan. 4. Green infrastructure promotion Title V of the Federal Water Pollution Control Act ( 33 U.S.C. 1361 et seq.) is amended— (1) by redesignating section 519 ( 33 U.S.C. 1251 note) as section 520; and (2) by inserting after section 518 ( 33 U.S.C. 1377 ) the following: 519. Environmental protection agency green infrastructure promotion (a) In general The Administrator shall ensure that the Office of Water, the Office of Enforcement and Compliance Assurance, the Office of Research and Development, and the Office of Policy of the Environmental Protection Agency promote the use of green infrastructure in and coordinate the integration of green infrastructure into, permitting programs, planning efforts, research, technical assistance, and funding guidance. (b) Duties The Administrator shall ensure that the Office of Water— (1) promotes the use of green infrastructure in the programs of the Environmental Protection Agency; and (2) coordinates efforts to increase the use of green infrastructure with— (A) other Federal departments and agencies; (B) State, tribal, and local governments; and (C) the private sector. (c) Regional green infrastructure promotion The Administrator shall direct each regional office of the Environmental Protection Agency, as appropriate based on local factors, and consistent with the requirements of this Act, to promote and integrate the use of green infrastructure within the region that includes— (1) outreach and training regarding green infrastructure implementation for State, tribal, and local governments, tribal communities, and the private sector; and (2) the incorporation of green infrastructure into permitting and other regulatory programs, codes, and ordinance development, including the requirements under consent decrees and settlement agreements in enforcement actions. (d) Green infrastructure information sharing The Administrator shall promote green infrastructure information sharing, including through an Internet website, to share information with, and provide technical assistance to, State, tribal, and local governments, tribal communities, the private sector, and the public regarding green infrastructure approaches for— (1) reducing water pollution; (2) protecting water resources; (3) complying with regulatory requirements; and (4) achieving other environmental, public health, and community goals. . 5. Financial capability guidance (a) Definitions In this section: (1) Affordability The term affordability means, with respect to payment of a utility bill, a measure of whether an individual customer or household can pay the bill without undue hardship or unreasonable sacrifice in the essential lifestyle or spending patterns of the individual or household, as determined by the Administrator. (2) Financial capability The term financial capability means the financial capability of a community to make investments necessary to make water quality or drinking water improvements. (3) Guidance The term guidance means the guidance published by the Administrator entitled Combined Sewer Overflows—Guidance for Financial Capability Assessment and Schedule Development and dated February 1997, as applicable to the combined sewer overflows and sanitary sewer overflows guidance published by the Administrator entitled Financial Capability Assessment Framework and dated November 24, 2014. (b) Use of median household income The Administrator shall not use median household income as the sole indicator of affordability for a residential household. (c) Revised guidance (1) In general Not later than 1 year after the date of completion of the National Academy of Public Administration study to establish a definition and framework for community affordability required by Senate Report 114–70, accompanying S. 1645 (114th Congress), the Administrator shall revise the guidance described in subsection (a)(3). (2) Use of guidance Beginning on the date on which the revised guidance referred to in paragraph (1) is finalized, the Administrator shall use the revised guidance in lieu of the guidance described in subsection (a)(3). (d) Consideration and consultation (1) Consideration In revising the guidance, the Administrator shall consider— (A) the recommendations of the study referred to in subsection (c) and any other relevant study, as determined by the Administrator; (B) local economic conditions, including site-specific local conditions that should be taken into consideration in analyzing financial capability; (C) other essential community investments; (D) potential adverse impacts on distressed populations, including the percentage of low-income ratepayers within the service area of a utility and impacts in communities with disparate economic conditions throughout the entire service area of a utility; (E) the degree to which rates of low-income consumers would be affected by water infrastructure investments and the use of rate structures to address the rates of low-income consumers; (F) an evaluation of an array of factors, the relative importance of which may vary across regions and localities; and (G) the appropriate weight for economic, public health, and environmental benefits associated with improved water quality. (2) Consultation Any revised guidance issued to replace the guidance shall be developed in consultation with stakeholders. (e) Publication and submission (1) In general On completion of the revision of the guidance, the Administrator shall publish in the Federal Register and submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives the revised guidance. (2) Explanation If the Administrator makes a determination not to follow one or more recommendations of the study referred to in subsection (c)(1), the Administrator shall include in the publication and submission under paragraph (1) an explanation of that decision. (f) Effect Nothing in this section preempts or interferes with any obligation to comply with any Federal law, including the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.). 1. Short title This Act may be cited as the Water Infrastructure Flexibility Act . 2. Definition of Administrator In this Act, the term Administrator means the Administrator of the Environmental Protection Agency. 3. Integrated plans (a) Integrated plans Section 402 of the Federal Water Pollution Control Act ( 33 U.S.C. 1342 ) is amended by adding at the end the following: (s) Integrated plan permits (1) Definitions In this subsection: (A) Green infrastructure The term green infrastructure means the range of measures that use plant or soil systems, permeable pavement or other permeable surfaces or substrates, stormwater harvest and reuse, or landscaping to store, infiltrate, or evap­o­trans­pi­rate stormwater and reduce flows to sewer systems or to surface waters. (B) Integrated plan The term integrated plan has the meaning given in Part III of the Integrated Municipal Stormwater and Wastewater Planning Approach Framework, issued by the Environmental Protection Agency and dated June 5, 2012. (C) Municipal discharge (i) In general The term municipal discharge means a discharge from a treatment works (as defined in section 212) or a discharge from a municipal storm sewer under subsection (p). (ii) Inclusion The term municipal discharge includes a discharge of wastewater or storm water collected from multiple municipalities if the discharge is covered by the same permit issued under this section. (2) Integrated plan (A) In general The Administrator (or a State, in the case of a permit program approved under subsection (b)) shall inform a municipal permittee or multiple municipal permittees of the opportunity to develop an integrated plan. (B) Scope of permit incorporating integrated plan A permit issued under this subsection that incorporates an integrated plan may integrate all requirements under this Act addressed in the integrated plan, including requirements relating to— (i) a combined sewer overflow; (ii) a capacity, management, operation, and maintenance program for sanitary sewer collection systems; (iii) a municipal stormwater discharge; (iv) a municipal wastewater discharge; and (v) a water quality-based effluent limitation to implement an applicable wasteload allocation in a total maximum daily load. (3) Compliance schedules (A) In general A permit for a municipal discharge by a municipality that incorporates an integrated plan may include a schedule of compliance, under which actions taken to meet any applicable water quality-based effluent limitation may be implemented over more than 1 permit term if the compliance schedules are authorized by State water quality standards. (B) Inclusion Actions subject to a compliance schedule under subparagraph (A) may include green infrastructure if implemented as part of a water quality-based effluent limitation. (C) Review A schedule of compliance may be reviewed each time the permit is renewed. (4) Existing authorities retained (A) Applicable standards Nothing in this subsection modifies any obligation to comply with applicable technology and water quality-based effluent limitations under this Act. (B) Flexibility Nothing in this subsection reduces or eliminates any flexibility available under this Act, including the authority of— (i) a State to revise a water quality standard after a use attainability analysis under section 131.10(g) of title 40, Code of Federal Regulations (or a successor regulation), subject to the approval of the Administrator under section 303(c); and (ii) the Administrator or a State to authorize a schedule of compliance that extends beyond the date of expiration of a permit term if the schedule of compliance meets the requirements of section 122.47 of title 40, Code of Federal Regulations (as in effect on the date of enactment of this subsection). (5) Clarification of State authority (A) In general Nothing in section 301(b)(1)(C) precludes a State from authorizing in the water quality standards of the State the issuance of a schedule of compliance to meet water quality-based effluent limitations in permits that incorporate provisions of an integrated plan. (B) Transition rule In any case in which a discharge is subject to a judicial order or consent decree as of the date of enactment of the Water Infrastructure Flexibility Act resolving an enforcement action under this Act, any schedule of compliance issued pursuant to an authorization in a State water quality standard shall not revise a schedule of compliance in that order or decree unless the order or decree is modified by agreement of the parties and the court. . (b) Municipal ombudsman (1) Establishment There is established within the Office of the Administrator an Office of the Municipal Ombudsman. (2) General duties The duties of the municipal ombudsman shall include the provision of— (A) technical assistance to municipalities seeking to comply with the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.) and the Safe Drinking Water Act ( 42 U.S.C. 300f et seq.); and (B) information to the Administrator to help the Administrator ensure that agency policies are implemented by all offices of the Environmental Protection Agency, including regional offices. (3) Actions required The municipal ombudsman shall work with appropriate offices at the headquarters and regional offices of the Environmental Protection Agency to ensure that the municipality seeking assistance is provided information— (A) about available Federal financial assistance for which the municipality is eligible; (B) about flexibility available under the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.) and, if applicable, the Safe Drinking Water Act ( 42 U.S.C. 300f et seq.); and (C) regarding the opportunity to develop an integrated plan, as defined in section 402(s)(1)(B) of the Federal Water Pollution Control Act (as added by subsection (a)). (4) Information sharing The municipal ombudsman shall publish on the website of the Environmental Protection Agency— (A) general information relating to— (i) the technical assistance referred to in paragraph (2)(A); (ii) the financial assistance referred to in paragraph (3)(A); (iii) the flexibility referred to in paragraph 3(B); and (iv) any resources related to integrated plans developed by the Administrator; and (B) a copy of each permit, order, or judicial consent decree that implements or incorporates an integrated plan. (c) Municipal enforcement Section 309 of the Federal Water Pollution Control Act ( 33 U.S.C. 1319 ) is amended by adding at the end the following: (h) Implementation of integrated plans through enforcement tools (1) In general In conjunction with an enforcement action under subsection (a) or (b) relating to municipal discharges, the Administrator shall inform a municipality of the opportunity to develop an integrated plan, as defined in section 402(s). (2) Modification Any municipality under an administrative order under subsection (a) or settlement agreement (including a judicial consent decree) under subsection (b) that has developed an integrated plan consistent with section 402(s) may request a modification of the administrative order or settlement agreement based on that integrated plan. . (d) Report to Congress Not later than 2 years after the date of enactment of this Act, the Administrator shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives and make publicly available a report on each integrated plan developed and implemented through a permit, order, or judicial consent decree since the date of publication of the Integrated Municipal Stormwater and Wastewater Planning Approach Framework issued by the Environmental Protection Agency and dated June 5, 2012, including a description of the control measures, levels of control, estimated costs, and compliance schedules for the requirements implemented through an integrated plan. 4. Green infrastructure promotion Title V of the Federal Water Pollution Control Act ( 33 U.S.C. 1361 et seq.) is amended— (1) by redesignating section 519 ( 33 U.S.C. 1251 note) as section 520; and (2) by inserting after section 518 ( 33 U.S.C. 1377 ) the following: 519. Environmental protection agency green infrastructure promotion (a) In general The Administrator shall ensure that the Office of Water, the Office of Enforcement and Compliance Assurance, the Office of Research and Development, and the Office of Policy of the Environmental Protection Agency promote the use of green infrastructure in and coordinate the integration of green infrastructure into, permitting programs, planning efforts, research, technical assistance, and funding guidance. (b) Duties The Administrator shall ensure that the Office of Water— (1) promotes the use of green infrastructure in the programs of the Environmental Protection Agency; and (2) coordinates efforts to increase the use of green infrastructure with— (A) other Federal departments and agencies; (B) State, tribal, and local governments; and (C) the private sector. (c) Regional green infrastructure promotion The Administrator shall direct each regional office of the Environmental Protection Agency, as appropriate based on local factors, and consistent with the requirements of this Act, to promote and integrate the use of green infrastructure within the region that includes— (1) outreach and training regarding green infrastructure implementation for State, tribal, and local governments, tribal communities, and the private sector; and (2) the incorporation of green infrastructure into permitting and other regulatory programs, codes, and ordinance development, including the requirements under consent decrees and settlement agreements in enforcement actions. (d) Green infrastructure information sharing The Administrator shall promote green infrastructure information sharing, including through an Internet website, to share information with, and provide technical assistance to, State, tribal, and local governments, tribal communities, the private sector, and the public regarding green infrastructure approaches for— (1) reducing water pollution; (2) protecting water resources; (3) complying with regulatory requirements; and (4) achieving other environmental, public health, and community goals. . 5. Financial capability guidance (a) Definitions In this section: (1) Affordability The term affordability means, with respect to payment of a utility bill, a measure of whether an individual customer or household can pay the bill without undue hardship or unreasonable sacrifice in the essential lifestyle or spending patterns of the individual or household, as determined by the Administrator. (2) Financial capability The term financial capability means the financial capability of a community to make investments necessary to make water quality or drinking water improvements. (3) Guidance The term guidance means the guidance published by the Administrator entitled Combined Sewer Overflows—Guidance for Financial Capability Assessment and Schedule Development and dated February 1997, as applicable to the combined sewer overflows and sanitary sewer overflows guidance published by the Administrator entitled Financial Capability Assessment Framework and dated November 24, 2014. (b) Use of median household income The Administrator shall not use median household income as the sole indicator of affordability for a residential household. (c) Revised guidance (1) In general Not later than 1 year after the date of completion of the National Academy of Public Administration study to establish a definition and framework for community affordability required by Senate Report 114–70, accompanying S. 1645 (114th Congress), the Administrator shall revise the guidance described in subsection (a)(3). (2) Use of guidance Beginning on the date on which the revised guidance referred to in paragraph (1) is finalized, the Administrator shall use the revised guidance in lieu of the guidance described in subsection (a)(3). (d) Consideration and consultation (1) Consideration In revising the guidance, the Administrator shall consider— (A) the recommendations of the study referred to in subsection (c) and any other relevant study, as determined by the Administrator; (B) local economic conditions, including site-specific local conditions that should be taken into consideration in analyzing financial capability; (C) other essential community investments; (D) potential adverse impacts on distressed populations, including the percentage of low-income ratepayers within the service area of a utility and impacts in communities with disparate economic conditions throughout the entire service area of a utility; (E) the degree to which rates of low-income consumers would be affected by water infrastructure investments, the use of rate structures, and customer assistance programs to address the rates of low-income consumers; (F) an evaluation of an array of factors, the relative importance of which may vary across regions and localities; and (G) the appropriate weight for economic, public health, and environmental benefits. (2) Consultation Any revised guidance issued to replace the guidance shall be developed in consultation with stakeholders. (e) Publication and submission (1) In general On completion of the revision of the guidance, the Administrator shall publish in the Federal Register and submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives the revised guidance. (2) Explanation If the Administrator makes a determination not to follow one or more recommendations of the study referred to in subsection (c)(1), the Administrator shall include in the publication and submission under paragraph (1) an explanation of that decision. (f) Effect Nothing in this section preempts or interferes with any obligation to comply with any Federal law, including the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq.).

May 25, 2017 Reported with an amendment