EPA Announces Build America, Buy America Guidance for Water Assistance Programs
The U.S. Environmental Protection Agency’s (USEPA) Office of Water (OW) has finalized implementation guidance for the expanded Build America, Buy America (BABA) mandates under the Agency’s water infrastructure assistance programs. Under BABA, infrastructure projects seeking federal assistance must ensure that all iron, steel, manufactured products, and construction materials are made in the U.S. to be eligible to receive funding.

Addressed to USEPA’s nine regional offices and OW directors, the guidance outlines how OW will be implementing BABA and provides explanations to project sponsors on how to assure compliance when submitting project applications. Overall, the guidance puts forward a stringent compliance environment and places responsibility of demonstrating and assuring BABA compliance on project sponsors. The guidance does address the issue of requesting project waivers under BABA and outlines a stringent request process where waiver requests must be submitted by project sponsors in most cases. Importantly, the guidance does not identify a deadline for Agency review and approval of waiver requests, only that the Agency will make a decision following a 15-day public comment period. A selected summary of the guidance’s waiver request process can be found below. Full review of the guidance can be found here.

  • Request for a “branded” or product specific waiver generally not allowed with directive for performance-based specifications that EPA will evaluate for product alternative market research
  • Limited availability waivers will be considered but only on time limited and conditional basis
  • Cost waiver (25% increase) must demonstrate increase in “overall” project costs and recommendations that such assertions begin with collection of information during design phase (administrative and tracking costs are eligible for determining costs)
  • Project delays due to supply chain or other factors must be identified and EPA notified promptly to allow for research into other options

 

Congress Returns to Washington D.C. Following Midterm Elections
While final vote tallies in a handful of House races are still being counted, Congress returned to Washington D.C. this week following the midterm elections where Democrats managed to keep control of the Senate and, as of this writing, Republicans are poised to gain control of the House by slim margins. However, real legislative work will begin in earnest on November 28 following the Thanksgiving Recess.

On November 28, lawmakers will have just one month to pass a handful of final must-pass legislative packages. Key among them are fiscal year 2023 spending bills. Lawmakers have until December 16 to pass spending bills before the Continuing Resolution, currently funding the government, expires or be forced to pass another Continuing Resolution. If the latter happens, lawmakers leave final appropriations decisions to the new Congress that convenes on January 3.