After much anticipation and NACWA engagement with the White House Office of Management and Budget (OMB) and EPA, the Biden Administration released guidance on April 18^th for how federal agencies – including EPA – should implement new Build America, Buy America (BABA) requirements set to take effect on May 15th. 

BABA is a significant policy change made through the Bipartisan Infrastructure Law (BIL) that expands Buy America requirements to cover construction materials and manufactured goods and applies them to all federal infrastructure financing programs moving forward – including water, transportation, energy, and many other areas receiving federal government investment. 

Specifically, the document directs federal agencies to work with OMB’s Made in America Office (MIAO), which was created at the start of the Biden Administration to advance BABA goals, on how to maintain consistency among the agencies and methods for resolving problems that may stem from supply chain issues, access to materials, or other related constraints.  

According to the guidance, agency heads will need to ensure that funds issued by a federal agency for infrastructure projects after May 15 meet these requirements. In the event a project or beneficiary of infrastructure funds is unable to meet these obligations, the document details the steps that should be taken when considering a waiver.  

To be able to request a review for whether a waiver is appropriate, an agency head will seek approval from the MIAO, which will lead the effort in assessing the need across the whole of the federal government. Among the principles agencies should rely upon when seeking a waiver are for the waiver to be time-limited, targeted to specific items or materials and have specific conditions that support the overall goal of promoting the use of American made products and materials.  

In order to approve a waiver, agencies will need to analyze a host of market conditions – including product availability, the amount of funding a project has received, and anticipated impact on manufacturing, suppliers, and the project if a waiver is not issued – as well as seek seeking public comment. 

Now that the OMB guidance has been released, EPA is charged with applying the requirements to all of its water funding programs, including the Clean Water State Revolving Fund (CWSRF) and the Water Infrastructure Finance and Innovation Act (WIFIA) program, to ensure conformity with this guidance and consistent with how other federal agencies interpret its implementation. EPA is expected to issue additional guidance for its specific funding programs soon, although the exact schedule for the guidance to be released is unclear.

NACWA will continue to keep members updated on developments, including release of the EPA guidance when available. Contact Kristina Surfus, NACWA’s Managing Director of Government Affairs, with questions or to discuss further.