EPA released for public comment a draft Water Infrastructure Finance and Innovation Act (WIFIA) Program Waiver related to the Build America, Buy America (BABA) Act requirements on May 9.

The proposal would waive BABA requirements for projects receiving WIFIA financing which "initiated project design planning" prior to May 14, 2022, when BABA goes into effect. The waiver can be downloaded from EPA here: Build America, Buy America (BABA) Waivers Open for Public Comment | US EPA.

"Initiated Project Design Planning" is defined as "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 states that this program waiver is necessary to support critical water projects being completed without delay, acknowledging the large lead time and costs that go into planning WIFIA projects. Without the waiver, utilities may decline federal funding and look to more costly financing sources to avoid BABA being imposed late in the process.

NACWA believes this waiver alleviates many of the concerns member utilities that have been considering WIFIA have raised regarding timing of when the requirements would go into effect, but is interested in any additional thoughts that members have.  Comments on this waiver are due to WIFIA@epa.gov by May 20th. NACWA appreciates your sharing any feedback with us – email Kristina Surfus at ksurfus@nacwa.org.

The release of this draft waiver by EPA comes on the heels of the Office of Management and Budget (OMB)’s release of BABA Implementation Guidance to federal agencies last month.

Additional guidance from EPA on BABA implementation and waivers, including for other programs such as the SRFs, will be forthcoming from EPA soon. NACWA will stay engaged with EPA and OMB and keep members updated.