WATER INFRASTRUCTURE FLEXIBILITY ACT; Congressional Record Vol. 163, No. 160
(Senate - October 05, 2017)

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[Pages S6373-S6374]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  WATER INFRASTRUCTURE FLEXIBILITY ACT

   Mr. McCONNELL. Mr. President, I ask unanimous consent that the 
Senate proceed to the immediate consideration of Calendar No. 109, S. 
692.
   The PRESIDING OFFICER. The clerk will report the bill by title.
   The senior assistant legislative clerk read as follows:

        A bill (S. 692) 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.

   There being no objection, the Senate proceeded to consider the bill, 
which had been reported from the Committee on Environment and Public 
Works, with an amendment to strike all after the enacting clause and 
insert in lieu thereof the following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Water Infrastructure 
     Flexibility Act''.

     SEC. 2. DEFINITION OF ADMINISTRATOR.

       In this Act, the term ``Administrator'' means the 
     Administrator of the Environmental Protection Agency.

     SEC. 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.

     SEC. 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:

     ``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

[[Page S6374]]

     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. 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.).

   Mr. McCONNELL. Mr. President, I ask unanimous consent that the 
committee-reported substitute amendment be agreed to, the bill, as 
amended, be considered read a third time and passed, and the motion to 
reconsider be considered made and laid upon the table.
   The PRESIDING OFFICER. Without objection, it is so ordered.
   The committee-reported amendment in the nature of a substitute was 
agreed to.
   The bill (S. 692), as amended, was ordered to be engrossed for a 
third reading, was read the third time, and passed.

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