In October, a proposed provision for the U.S. Senate’s Fiscal Year 2016 (“FY16”) spending package for the Environmental Protection Agency (“EPA”) received national attention, as Section 428 of the proposal sought to amend the Clean Water Act by prohibiting both direct and indirect combined sewer overflow (“CSO”) discharges to the Great Lakes watershed. The National Association of Clean Water Agencies (“NACWA”), a primary opponent to this proposal, found that compliance costs would likely exceed $70 billion, with the financial burden falling on ratepayers throughout the Great Lakes region. On Friday, December 18, 2015, Congress approved the FY16 spending package, which, notably, excluded the proposed Section 428 requirement to eliminate CSO discharges in the Great Lakes region. 

In place of the Section 428 proposal, the FY16 spending package establishes a standard for reporting CSO discharges to the Great Lakes, authorizes the Great Lakes Restoration Initiative with $300 million in funding for those projects addressing non-point sources of water quality impairment, and authorizes one year of funding to the Clean Water State Revolving Fund, totaling $1.393 billion from appropriators. The notification requirements, which are found in Section 425 of Division G of H.R. 2029, the Consolidated Appropriations Act of 2016, requires that the Administrator of the EPA work with those states having publicly owned treatment works that discharge to the Great Lakes region to create public notice requirements for a CSO discharge. This notice requirement must provide for: (1) the method of notice, (2) the contents of the notice, and (3) requirements for public availability of the notice. The notice, at a minimum, must include: (1) the dates and times of the applicable discharge, (2) the volume of the discharge, and (3) a description of any public access areas impacted by the discharge. The notice and publication requirements must be implemented within two years of enactment of the FY16 spending package.

By excluding the proposed Section 428 from the FY16 spending package, the national goals and standards for the reduction of CSOs will continue to be regulated under the 1994 Combined Sewer Overflow Control Policy, and will prevent ratepayers from bearing the economically infeasible compliance costs associated with the elimination of CSO discharges.