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EPA Opens 15-day Comment Period for Build America, Buy America Waiver for WIFIA Projects with Design Underway by 5/14/22

The public has until May 20, 2022, to provide comments to EPA on a waiver for the requirements under Build America, Buy America (BABA). The Agency is proposing to waive BABA requirements for Water Infrastructure Finance and Innovation Act (WIFIA) borrowers that initiated project design plans prior to May 14, 2022 – the day which BABA goes into effect.

From EPA’s waiver: “[I]nitiated project design planning” means efforts made by the utility owner to evaluate and identify both technologically and financially viable options for capital improvement projects. These efforts can be in various forms of technical documents describing design concepts, alternatives analyses, and long-term facility or system plans. Examples include preliminary engineering reports, master plans, basis of design reports, and technical design memorandum.

EPA is concerned that water systems may decide to not use WIFIA funds and instead opt for more expensive sources of financing if a waiver is not granted. Additionally, the Agency argues that requiring borrowers that have already begun project design to comply with BABA “may lead to significant cost and schedule increases for much needed infrastructure” and that this conflicts with the Bipartisan Infrastructure Law’s goal of “investing in the nation’s water infrastructure and initiating construction in an expeditious and efficient manner.” EPA is clear that this waiver does not change the requirements for American Iron and Steel which were already in place. Comments should be sent to WIFIA@epa.gov and include “Program Waiver Comment” in the subject line to ensure comments can be filed and reviewed.