[Senate Report 115-87]
[From the U.S. Government Publishing Office]


                                                      Calendar No. 109
115th Congress      }                                   {       Report
                                 SENATE
 1st Session        }                                   {       115-87

======================================================================



 
                  WATER INFRASTRUCTURE FLEXIBILITY ACT

                                _______
                                

                  May 25, 2017.--Ordered to be printed

                                _______
                                

   Mr. Barrasso, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 692]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred the bill (S. 692) to provide for integrated plan 
permits, to establish the Office of Municipal Ombudsman, to 
promote green infrastructure, and to require the revision of 
financial capability guidance, having considered the same, 
reports favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill, as amended, do pass.

                    General Statement and Background

    In 2012, the Environmental Protection Agency (EPA) issued 
an integrated permitting and planning policy to address the 
need for municipalities to undertake updated wastewater and 
stormwater control measures under the Clean Water Act. EPA 
established this policy in response to the challenges and cost 
implications municipalities are facing to address water quality 
and infrastructure problems. Many state and local governments 
face difficult economic challenges with limited resources and 
financial capability to meet the Clean Water Act requirements 
related to stormwater and wastewater. On average, the U.S. 
Conference of Mayors finds that municipalities spend between 6 
to 7 cents of every tax dollar on water and sewer systems, 
making water infrastructure the third-largest expense for 
cities behind education and emergency personnel.
    S. 692 would address these issues by requiring EPA to allow 
municipalities to develop plans that integrate multiple Clean 
Water Act requirements and implement those plans through the 
Act's permitting process or through enforcement tools. The bill 
also would establish an Office of the Municipal Ombudsman 
within EPA to ensure that municipalities receive assistance 
regarding compliance with the Clean Water Act and the Safe 
Drinking Water Act. The bill directs EPA to promote green 
infrastructure (measures like landscaping or permeable pavement 
that reduce storm water flows into sewer systems or surface 
waters) by conducting outreach and training through the 
agency's regional offices. Finally, the bill would direct the 
EPA to revise how it evaluates the financial capability of a 
community to make investments necessary to make water quality 
or drinking water improvements.

                     Objectives of the Legislation

    The objective of the legislation is to allow integrated 
plans, to establish the Office of Municipal Ombudsman, to 
promote green infrastructure, and to require the revision of 
financial capability guidance.

                      Section-by-Section Analysis


Sec. 1. Short title

Sec. 2. Definition

Sec. 3. Integrated plans

    Requires the Administrator to inform municipalities of the 
opportunity to prepare an integrated plan.
    Authorizes permits to incorporate integrated plans, which 
may combine requirements related to a combined sewer overflow; 
a capacity, management, operation, and maintenance program for 
sanitary sewer collection systems; a municipal stormwater 
discharge; a municipal wastewater discharge; and a water 
quality-based effluent limitation to implement an applicable 
wasteload allocation in a total maximum daily load.
    Authorizes effluent limitations to be met through the use 
of green infrastructure.
    Authorizes compliance schedules in permits incorporating an 
integrated plan for any water quality standard, if authorized 
by a State in its water quality standards regulations.
    Establishes an Office of Municipal Ombudsman.
    Directs the EPA to notify communities of the opportunity to 
prepare integrated plans in the context of consent decrees or 
administrative orders. Establishes an integrated plan as a 
basis for a request to modify an administrative order or 
consent decree.
    Requires information sharing and a report to Congress.

Sec. 4. Green infrastructure promotion

    Directs the Administrator to ensure that EPA offices 
promote the integration of green infrastructure into, 
permitting programs, planning efforts, research, technical 
assistance, and funding guidance. The Committee notes that 
green infrastructure can provide multiple environmental 
benefits, as well as economic and public health benefits.

Sec. 5. Financial capability guidance

    Defines affordability and financial capability. Prohibits 
the use of median household income as the sole indicator of 
affordability for a residential household.
    Requires EPA to update its 1997 Financial Capability 
guidance and 2014 Financial Capability Assessment Framework 
within one year of the completion of a National Academy of 
Public Administration (NAPA) study to establish a definition 
and framework for community affordability required by Senate 
Report 114-70. The Committee notes that the scope of work 
issued by EPA for that study asked NAPA for recommendations to 
supplement the 1997 Financial Capability guidance. S. 692 
requires revision and replacement of that guidance. In 
addition, the Committee encourages the Administrator to 
consider updates to the 1995 Interim Economic Guidance for 
Water Quality Standards at the same time that it updates the 
1997 guidance.
    In developing a revised guidance, EPA must consider various 
factors and consult with stakeholders. The Committee notes that 
measures to address Clean Water Act requirements include 
operation and maintenance actions as well as capital 
investments and costs or savings associated with alternative 
measures in both categories are relevant to an affordability 
analysis.

                          Legislative History

    The language similar to this bill was included last 
Congress in the Water Resources Development Act of 2016, S. 
2848. S. 2848 was reported by the Committee on June 20, 2016. 
S. 2848 passed the Senate on September 15, 2016 by a vote of 95 
to 3.
    On March 21, 2017, Senator Fischer and Senator Brown 
introduced S. 692, the ``Water Infrastructure Flexibility Act 
of 2017.'' Co-sponsors include Environment and Public Works 
committee members Senator Cardin, Senator Boozman, Senator 
Booker, and Senator Inhofe. The bill was referred to the 
Committee on Environment and Public Works. On April 5, 2017, 
the Committee considered S. 692 and the bill was ordered to be 
reported favorably by voice vote.
    On April 5, 2017, the Committee considered S. 692 and 
adopted by voice vote an amendment in the nature of a 
substitute that made technical and non-controversial changes to 
the bill. The bill, as amended, was ordered to be reported 
favorably by voice vote.

                                Hearings

    On March 28, 2017, the Committee held a legislative hearing 
that included a review of this legislation.

                             Rollcall Votes

    The Committee on Environment and Public Works met to 
consider S. 692 on April 5, 2017. The bill was ordered 
favorably reported by voice vote. No rollcall votes were taken.

                      Regulatory Impact Statement

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee finds that S. 692 
does not create any additional regulatory burdens, nor will it 
cause any adverse impact on the personal privacy of 
individuals.

                          Mandates Assessment

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the Committee notes that the Congressional 
Budget Office found that S. 692 contains no intergovernmental 
or private-sector mandates as defined in the Unfunded Mandates 
Reform Act and would impose no costs on state, local, or tribal 
governments.

                          Cost of Legislation

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:

                                                    April 18, 2017.
Hon. John Barrasso,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 692, the Water 
Infrastructure Flexibility Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jon Sperl.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 692--Water Infrastructure Flexibility Act

    S. 692 would require the Environmental Protection Agency 
(EPA) to promote green infrastructure (measures like 
landscaping or permeable pavement that reduce storm water flows 
into sewer systems or surface waters) by conducting outreach 
and training through the agency's regional offices. The bill 
also would establish an Office of the Municipal Ombudsman 
within the EPA to provide technical assistance to 
municipalities seeking to comply with the Clean Water Act, to 
promote integrated planning as part of that act's permitting 
process, and to disseminate information to eligible entities 
about the availability of financial assistance. Finally, the 
bill would direct the EPA to revise the factors that 
municipalities should consider when measuring the financial 
capability of households to pay for future investments in a 
community's water infrastructure.
    Based on an analysis of information provided by the agency, 
CBO estimates that implementing S. 692 would cost about $3 
million per year for additional personnel and related 
administrative expenses to meet the bill's requirements. In 
total, CBO estimates that the EPA would spend about $15 million 
over the 2018-2022 period; that spending would be subject to 
the availability of appropriated funds.
    Enacting S. 692 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. CBO 
estimates that enacting S. 692 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    S. 692 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Jon Sperl. The 
estimate was approved by H. Samuel Papenfuss, Deputy Assistant 
Director for Budget Analysis.

                        Changes in Existing Law

    In compliance with section 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill 
as reported are shown as follows: Existing law proposed to be 
omitted is enclosed in [black brackets], new matter is printed 
in italic, existing law in which no change is proposed is shown 
in roman:

           *       *       *       *       *       *       *


                  Federal Water Pollution Control Act


TITLE III--STANDARDS AND ENFORCEMENT

           *       *       *       *       *       *       *


  Sec. 309. (a)(1) Whenever, on the basis of any information 
available to him, the Administrator finds that any person is in 
violation of any condition or limitation which implements 
section 301, 302, 306, 307, 308, 318, or 405 of this Act in a 
permit issued by a State under an approved permit program under 
section 402 or 404 of this Act, he shall proceed under his 
authority in paragraph (3) of this subsection or he shall 
notify the person in alleged violation and such State of such 
finding. If beyond the thirtieth day after the Administrator's 
notification the State has not commenced appropriate 
enforcement action, the Administrator shall issue an order 
requiring such person to comply with such condition or 
limitation or shall bring a civil action in accordance with 
subsection (b) of this section.

           *       *       *       *       *       *       *

  (g) Administrative Penalties.--
          (1) Violations.--Whenever on the basis of any 
        information available--
                  (A) * * *

           *       *       *       *       *       *       *

  (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.

TITLE IV--PERMITS AND LICENSES

           *       *       *       *       *       *       *


  Sec. 402. (a)(1) Except as provided in sections 318 and 404 
of this Act, the Administrator may, after opportunity for 
public hearing, issue a permit for the discharge of any 
pollutant, or combination of pollutants, notwithstanding 
section 301(a), upon condition that such discharge will meet 
either (A) all applicable requirements under sections 301, 302, 
306, 307, 308, and 403 of this Act, or (B) prior to the taking 
of necessary implementing actions relating to all such 
requirements, such conditions as the Administrator determines 
are necessary to carry out the provisions of this Act.
  (2) * * *

           *       *       *       *       *       *       *

  (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.

           *       *       *       *       *       *       *


TITLE V--GENERAL PROVISIONS

           *       *       *       *       *       *       *



                             administration

  Sec. 501. (a) The Administrator is authorized to prescribe 
such regulations as are necessary to carry out his functions 
under this Act.
  (b) * * *

           *       *       *       *       *       *       *


SEC. 518. INDIAN TRIBES.

  (a) Policy.--Nothing in this section shall be construed to 
affect the application of section 101(g) of this Act, and all 
of the provisions of this section shall be carried out in 
accordance with the provisions of such section 101(g). Indian 
tribes shall be treated as States for purposes of such section 
101(g).
  (b) * * *

           *       *       *       *       *       *       *


SEC. 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.
  Sec. [519] 520. This Act may be cited as the ``Federal Water 
Pollution Control Act'' (commonly referred to as the Clean 
Water Act).

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