Developing a Financially Sustainable Capital Program to Meet Consent Decree Requirements

The 1972 Clean Water Act (CWA) explicitly addressed the need to consider economic constraints in defining wastewater system investment requirements. In addition, limitations of communities' financial capabilities have been acknowledged (nominally) as a basis for granting schedule relief in CWA enforcement actions. However, EPA's existing financial capability assessment guidance is flawed, and utilities facing CWA enforcement actions must work proactively to ensure that Consent Decree requirements provide for financially sustainable capital programs. This paper will review, in brief, the problematic aspects of EPA's financial capability assessment guidance,1 how strategic financial plans may be used to define capital funding capacity and thereby appropriate negotiation (or litigation) positions in prospective enforcement procedures, and how financially sustainable capital program investments may be defined through effective prioritization and planning techniques,.