WIFIA Federal Requirements

Projects receiving WIFIA credit assistance must adhere to all federal laws and regulations. These federal requirements cover environmental considerations for projects, domestic preference and labor laws related to construction work, and other civil and economic authorities. The WIFIA Borrower Guide to Federal Requirements is now available in the format below so the program can offer up-to-date information to prospective and current borrowers as laws, regulations, and executive orders governing the implementation of federal requirements are updated.

This borrower guide highlights important environmental, social, and economic federal laws, regulations, and Executive Orders specifically listed in the WIFIA regulations (40 CFR Part 35 Subpart Q) as well as relevant updates on new and existing federal requirements for the program. The sections below provide a brief overview of several federal requirements and identify the WIFIA program's expectations for complying with those requirements. This page will continue to be updated with additional resources as they become available to help borrowers implement each requirement effectively for their WIFIA project.

WIFIA Borrower Guide to Federal Requirements

General

Environmental Review Requirements

Materials Procurement and Land Acquisition Requirements

Labor and Other Contracting Requirements

Requirements that Do Not Apply to the WIFIA Program

Additional Considerations for Federal Requirements

Borrower Guide to Federal Requirements – Revision History

WIFIA Points of Contact for Federal Requirements
 

Disclaimer

This document is intended as a guide for WIFIA borrowers to understand their general responsibilities for complying with federal requirements and is for informational purposes only. This document discusses several federal statutory and regulatory provisions and other federal requirements, but does not itself have legal effect, and is not a substitute for those provisions and any legally binding requirements that they may impose. It does not expressly or implicitly create, expand, or limit any legal rights, obligations, responsibilities, expectations, or benefits to any person.

The information provided in this guide does not, and is not intended to, constitute legal advice. Users of this guide should not rely on this information to ensure compliance with federal requirements and should contact their legal counsel to obtain advice with respect to any legal matter, including such compliance. To the extent there is any inconsistency between this document and any legally binding federal requirements, the latter take precedence. EPA retains discretion to use or deviate from this document as appropriate.

This guide is subject to change without notice to address any new laws and regulations that impact the WIFIA program and its borrowers. The guide contains links to third-party websites. Such links are only for the convenience of the reader, and EPA does not recommend or endorse the content of the third-party sites.
 

WIFIA Specifications

For provisions to include in bids and contracts, view or download the WIFIA Specifications Packet (pdf) (873 KB)

This packet provides contract language that communicates federal requirements for WIFIA-funded projects. Note that some of the contract language in this package is required and must be included verbatim. This includes contract language for: Labor Laws and Standards (in 29 CFR 5.5) and Equal Employment Opportunity (in 41 CFR 60). The remaining federal requirements include suggested language, and you may use your own language so long as it still ensures that provisions are included to guarantee compliance with the federal requirements. There are some areas in the packet that require borrower edits.

EPA makes no claims regarding the legality of the federal language provisions with respect to state or local law.
 

Guiding Principles for Compliance

The WIFIA program has oversight responsibilities to ensure that federal requirements are being communicated to our borrowers. We provide technical assistance to facilitate borrower compliance with those requirements at all stages of our loan process, from project selection to application processing and through loan management. In addition to responding to borrower requests for assistance, the program may review a borrower’s compliance procedures and documentation to offer direct and individualized assistance where it is most needed.

The WIFIA borrower has implementation responsibilities. These implementation responsibilities may fold in multiple additional parties involved in the execution of a WIFIA project, including engineers, construction managers, general contractors, subcontractors, suppliers, and manufacturers. The WIFIA borrower ensures the federal requirements are communicated to all involved parties and that specific responsibilities are clearly laid out between parties such that the federal requirements are properly carried out and documented for the WIFIA project. Where needed, borrowers should seek support from the WIFIA program to accomplish these implementation requirements.

Below are guiding principles to support the borrower in ensuring compliance with federal requirements:

UNDERSTAND THE FEDERAL REQUIREMENTS. Reading through this borrower guide is a good first step towards understanding the federal requirements that apply to WIFIA borrowers. These requirements are very similar to those that would apply to other federal funding programs. If there is uncertainty on the WIFIA program’s expectations for compliance, seek clarification by contacting the borrower’s WIFIA point of contact (prospective borrowers can email the WIFIA program (wifia@epa.gov). Borrowers may find that developing a plan for compliance with federal requirements early in project planning can ensure that potential issues are identified and remedied early or are avoided entirely.

IDENTIFY POTENTIAL ISSUES AND COMMUNICATE EARLY. Defining lines of communications and decision-making roles is also important. WIFIA borrowers are responsible for ensuring compliance with federal requirements and should be the ultimate decision-maker for the project. As frequently noted in this guide, the WIFIA program expects borrowers to communicate federal requirements as part of bid solicitations and in executed contracts when WIFIA funding is anticipated. This is particularly beneficial for construction-related work to avoid the need to retroactively address federal requirements with contractors. Timely communication between the borrower and the WIFIA program, as well as between the borrower and its contractors and subcontractors, can help avoid issues of non-compliance. Throughout the course of the WIFIA project, borrowers should not hesitate to communicate potential compliance issues to the WIFIA program and explore available options and remedies with program staff.

MAINTAIN GOOD DOCUMENTATION. Good documentation is key to compliance. If there is no evidence that the borrower has complied with federal requirements, the WIFIA program finds it difficult to verify that the borrower is compliant. The WIFIA program does not require any specific software for borrowers to document compliance. There is no single approach to recordkeeping, and it can be as simple or complex as is appropriate for the project.

Borrowers may want to consider the following when establishing recordkeeping procedures:

  • The borrower is responsible for checking and ensuring compliance for their contractors and subcontractors. Organize documents such that they are easy to internally review against federal requirements.
  • The WIFIA program may request review of documents to ensure compliance. This may include document requests for contracts, environmental monitoring reports, AIS/Build America, Buy America Act documentation for specific items, and certified payrolls and wage determinations. Although the WIFIA program’s review may not be inclusive of all contracts and subcontracts, documents should be easy to locate during compliance monitoring activities.
  • Some federal requirements have a minimum duration for maintaining project records, including AIS and Davis-Bacon. Local and state requirements may be longer or shorter. Be aware of recordkeeping requirements to ensure recordkeeping requirements are fully met.
     

Environmental Review and the National Environmental Policy Act

The National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. § 4321, et seq. mandates that federal agencies consider the effects of their actions, including programs, regulations, policies, and grant-funded specific projects, on the quality of the human environment.

The WIFIA program’s environmental review includes the NEPA and various federal environmental cross-cutting authorities (generally referred to as cross-cutters) that are listed in the WIFIA regulations at 40 CFR Part 35 Subpart Q. The environmental review comprises both the NEPA review and federal environmental cross-cutting authorities’ review and relies on information provided by the borrower in WIFIA’s Environmental Questionnaire (included as an appendix to the WIFIA application).

Prior to obligating funds for a loan, the WIFIA program must review the environmental impacts of the project and make an independent determination under NEPA. The WIFIA program is guided by EPA Procedures for Implementing NEPA and Assessing Environmental Effects. The NEPA determinations for WIFIA's closed loans are listed at WIFIA Closed Loans under the Environmental Compliance column.

To document the completion of the NEPA environmental review, the WIFIA program will issue one of the following determinations for the loan:

  • Categorical Exclusion (CATEX): EPA’s list of actions that may be categorically excluded is available at 40 CFR 6.204. The issuance of a CATEX does not require a public comment period.
  • Finding of No Significant Impact (FONSI) under WIFIA’s Programmatic Environmental Assessment (PEA): The WIFIA program has analyzed the typical potential environmental impacts related to the issuance of credit assistance under WIFIA in the PEA and associated FONSI, related to certain WIFIA water and wastewater projects eligible under 33 U.S.C. § 3905 and described in Section 4 of the PEA. An additional 30-day public comment period is not required for projects that fall under the PEA.
  • FONSI under Environmental Assessment (EA): If the project does not qualify for a CATEX or the PEA because the environmental impacts or the significance of the impacts are unknown, the WIFIA borrower will be asked to submit an environmental information document (EID) with a scope and level of detail commensurate with the magnitude and significance of the project. If deemed sufficient and acceptable by the WIFIA program, the borrower may submit a draft EA and supporting documents in lieu of an EID, or the WIFIA program will draft an EA. A FONSI determination under an EA is subject to a 30-day public comment period before it is finalized. EPA’s NEPA implementing regulations for environmental assessments are found at 40 CFR 6.205.
  • Environmental Impact Statement (EIS): If significant impacts are anticipated for the project during the environmental assessment, the borrower will partner with the WIFIA program to assist in the preparation of an EIS describing the environmental impacts and reasonable alternatives. EPA may enter into a third-party agreement with the applicant to hire a consulting firm to prepare the EIS. A draft EIS is subject to a 45-day public comment period, and the final EIS is subject to a 30-day waiting period before it is finalized and a record of decision (ROD) is issued for the project. EPA’s NEPA implementing regulations for environmental impact statements are found at 40 CFR 6.207.

The WIFIA program will first determine whether the project scope and potential environmental impacts could fall under a CATEX or the WIFIA program’s PEA. Under the PEA, WIFIA credit assistance projects qualify for coverage when:

  • The impacts from their projects are within the scope of those considered in Section 4 of the PEA,
  • Proper supporting documentation is provided, and
  • A memorandum to the record is developed by EPA using the PEA Environmental Questionnaire.

If the project scope or the potential environmental impacts require an EA or EIS, the WIFIA program will continue to work with the borrower to complete those efforts.

The WIFIA program periodically updates the WIFIA Environmental Questionnaire to support environmental review. The Questionnaire can be found in multiple formats in the Resources section below.

What to Expect

The WIFIA program has the responsibility to conduct a NEPA review and issue a determination for the project scope covered by a WIFIA loan, prior to obligating funds for a WIFIA loan. EPA documents the NEPA determination for each loan executed by the WIFIA program. WIFIA projects must comply with all environmental cross-cutting authorities, and it is particularly important for projects where construction is already in progress or will be starting prior to loan close. Experience has shown that successful and timely completion of consultations under Section 106 of the National Historic Preservation Act and Section 7 of the Endangered Species Act can be difficult when initiated too late in the project schedule. Compliance with cross-cutting authorities is reviewed and documented by the WIFIA program.

WIFIA borrowers do not need to have a completed environmental review prior to submitting a letter of interest to the program or when applying for a WIFIA loan.

As part of the WIFIA application process, borrowers can expect to:

  • Complete the WIFIA program’s Environmental Questionnaire for all project components that will be included in the loan.
  • Identify any consultations with necessary cross-cutting agencies that have already been completed or are ongoing. The WIFIA program may conduct consultations related to federal cross-cutting authorities, as necessary for the environmental review.
  • Provide available environmental assessments, consultations, or other documentation to support the WIFIA program’s review of environmental impacts and mitigation measures. This includes project description and location information, project maps, and other environmental reviews conducted by other federal agencies or the State Revolving Fund (SRF).
  • Discuss the environmental review with the WIFIA program prior to submission of the application. If it appears that the project may not qualify for a CATEX, the WIFIA program will request that the borrower submit a completed Environmental Questionnaire along with the relevant supporting materials.
  • If an EA or EIS is required, consult with the WIFIA program to determine the scope and level of detail for the documentation, indicate any public meetings or hearings required as part of the process, and support the WIFIA program in responding to comments if the NEPA determination is subject to a public comment period.

Key borrower responsibilities for implementation include:

  • Notify the WIFIA program if the scope of activities under the existing environmental determination is modified and provide supporting documentation for the WIFIA program to initiate additional federal agency consultations, as needed, to maintain the borrower’s environmental compliance with the project.

Best Practices for WIFIA Application Environmental Review

The WIFIA program has compiled some tips related to environmental documentation and review to help borrowers prepare their WIFIA application materials for the environmental review process.

  • Fully complete the WIFIA application and Environmental Questionnaire, including permitting table, to the best of your ability, ensuring there are no blank questions, tabs or checkboxes, and any attachment in support of the Environmental Questionnaire that is referenced is attached and relevant to the WIFIA project(s). Questions may be marked as not applicable, if necessary.
  • Provide a clear, understandable project description and a location description for each identified project component. Confirm that project descriptions are not conflicting across documents.
  • Include an accurate project map showing all the project components and a GIS file of the project.
  • Indicate whether NEPA or a state NEPA-like process review has occurred for the project and include all the associated documentation. Ensure that any attachments or appendices to the documentation are provided.
  • If National Historic Preservation Act Section 106 Consultation has been completed for a project, please indicate it on the application materials and ensure that all documentation and correspondence is also provided, including letters to the State Historical Preservation Office (SHPO), response letters back from SHPO, any letters to and from Tribes, and technical reports.
  • If application materials indicate Endangered Species Act Section 7 Consultation has been completed, ensure all documentation and correspondence is also provided, including letters to the Services, response letters back from the Services, and technical reports.
  • If application materials indicate that a Clean Water Act Section 404 permit has been received, please provide a copy to the WIFIA program.
  • If application materials indicate that the project is receiving State Revolving Fund assistance or other federal funds, such as from Bureau of Reclamation, ensure that the status of those environmental reviews and the appropriate agency contact is indicated.
  • Provide documents to the WIFIA program that are clearly labeled and logically organized, so files referenced in the application can be easily located.

Resources

Environmental Cross-Cutting Authorities

The WIFIA program will confirm applicability of each federal cross-cutting authority in relation to the project scope, as some cross-cutters only apply in certain locations or specific lands. The two cross-cutters that generally apply to all WIFIA loans are the National Historic Preservation Act (NHPA) and the Endangered Species Act (ESA).

National Historic Preservation Act (NHPA)
Projects must comply with the NHPA, which requires consultation with the appropriate State Historic Preservation Office. The fundamental responsibility of federal agencies under Section 106 of the NHPA is to consider the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register of Historic Places prior to approval of the expenditure of federal funds. For information on the 106 process and how the public can become involved, see A Citizen's Guide to Section 106 Review.

Endangered Species Act (ESA)
All projects applying for WIFIA funding must be evaluated for their potential impact on endangered, threatened, proposed endangered, or candidate species and critical habitat. The WIFIA program or another federal entity will make determinations for each species in the project area based on project location and construction/design plans. Under Section 7 of the ESA, actions that may affect listed species or their critical habitat must be reviewed through a consultation process between the federal entity and either the U.S. Fish and Wildlife Service, which is responsible for terrestrial and freshwater species, or the National Marine Fisheries Service, which is responsible for most marine species.

The WIFIA program’s environmental review considers and evaluates compliance with federal cross-cutters, generally including but not limited to:

  • Archaeological and Historic Preservation Act, as amended (54 U.S.C. §§ 312501-312508)
  • Archaeological Resources Protection Act (16 U.S.C. § 470AA-MM)
  • Bald and Golden Eagle Protection Act (16 U.S.C. §§ 668-668C)
  • Clean Water Act Section 404 (33 U.S.C. § 1251, et seq.)
  • Clean Air Act Conformity (42 U.S.C. § 7506(C))
  • Coastal Zone Management Act (16 U.S.C. §§ 1451-1466)
  • Coastal Barrier Resources Act (16 U.S.C. §§ 3501-3510)
  • Endangered Species Act (16 U.S.C. §§ 1531, et seq.)
  • Essential Fish Habitat Consultation Process under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. §§ 1801-1891)
  • Farmland Protection Policy Act (7 U.S.C. §§ 4201-4209)
  • Fish and Wildlife Coordination Act (16 U.S.C. § 661, et seq.)
  • Flood Plain Management (Executive Order 11988, as amended by Executive Order 12148)
  • Marine Mammal Protection Act (16 U.S.C. §§ 1361-1407)
  • Migratory Bird Treaty Act (16 U.S.C. §§ 703-712)
  • National Historic Preservation Act (NHPA), as amended (54 U.S.C. § 300101, et seq.)
  • Native American Graves Protection and Repatriation Act (25 U.S.C. § 3001, et seq.)
  • Protection of Wetlands (Executive Order 11990, as amended by Executive Order 12608)
  • Rivers and Harbors Act Section 10 (33 U.S.C. 403)
  • Safe Drinking Water Act (42 U.S.C. §§ 300F-300J-26)
  • Wild and Scenic Rivers Act (16 U.S.C. §§ 1271-1287)
  • Wilderness Act (16 U.S.C. §§ 1131, et seq.)

What to Expect

Borrowers should provide any existing environmental technical reports or consultation documentation for project components included in the WIFIA loan. Additional information may be required to complete and document compliance. Components of the WIFIA project that do not or cannot comply with environmental cross-cutting authorities may be excluded from the WIFIA project. 

Generally, the WIFIA program will lead environmental consultations, supported by information provided from the borrower, unless there is another agency leading consultations. When the WIFIA project is co-funded with other federal or state programs, the WIFIA program may work collaboratively with co-funding agencies to ensure compliance with environmental cross-cutting authorities. The program may also coordinate with permitting agencies, such as the U.S. Army Corps of Engineers, to ensure completion of cross-cutters. Borrowers may work closely with WIFIA program staff on the environmental review to ensure all relevant federal cross-cutters have been considered for the project.

Consultations for certain cross-cutters may result in post-loan close environmental requirements, such as through the execution of a Memorandum of Agreement or Programmatic Agreement pursuant to the NHPA or resulting from a Biological Opinion under the ESA. Additionally, environmental monitoring and reporting requirements prior to and during project construction may be outlined in the loan agreement. After loan closing, borrowers must remain in compliance with all applicable laws, rules, regulations and requirements, including but not limited to environmental cross-cutters.

Key borrower responsibilities for implementation include:

  • Execute the requirements outlined in the environmental review documents or specified in the loan agreement. These requirements vary based on the scope of the project and may include activities like submittal of approved environmental permits; use of construction methods to mitigate potential environmental impacts; environmental training for employees; submittal of biological assessments; or other requirements identified through consultations with other federal agencies.
  • WIFIA borrowers should clearly communicate project construction schedules to ensure the environmental compliance requirements can be or have been met prior to conducting ground-disturbing activities.
  • Notify the WIFIA program if the scope of activities under the existing environmental determination is modified and provide supporting documentation for the WIFIA program to initiate additional federal agency consultations, as needed, to maintain the borrower’s environmental compliance with the project.

Resources

American Iron and Steel Requirement

The American Iron and Steel (AIS) requirement is specified in the WIFIA statute at 33 U.S.C. § 3914 and implementation of the federal requirement mirrors Clean Water and Drinking Water SRF programs. Note that Build America, Buy America requirements are also effective starting May 14, 2022. Although there is some overlap in the products covered, both requirements apply to WIFIA loans. See the Build America, Buy America Act section below for more discussion on this requirement.

WIFIA borrowers must install iron and steel products that are produced in the U.S. for the project. Products covered under the AIS requirement include:

  • Lined or unlined pipes and fittings
  • Manhole covers and other municipal castings
  • Hydrants
  • Tanks
  • Flanges
  • Pipe clamps and restraints
  • Valves
  • Structural steel
  • Reinforced precast concrete
  • Construction materials

If the listed products are permanently incorporated into the project and are primarily iron and steel material (greater than 50 percent iron or steel, measured by material costs), then borrowers should obtain and keep records of AIS compliance for that product. If a product does not fall within one of the listed product categories, it does not need to comply with the AIS requirement.

The WIFIA statute allows EPA to grant project waivers in specific circumstances: (1) if the requirement is inconsistent with the public interest; (2) if the products are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality; or (3) if the products will increase the cost of the project by 25 percent or more. WIFIA borrowers can seek guidance from the program on waivers at any phase in project design and implementation to discuss borrower-specific circumstances and explore options to ensure compliance. See  WIFIA AIS Waiver Process – How it works (pdf) (556.01 KB)

There are also national waivers that are immediately available for borrower use and do not require additional approval. The National De Minimis Waiver for the AIS requirement is a valuable tool to facilitate compliance for borrowers. Products that are covered under the AIS requirement that meet the incidental nature and low-cost criteria (i.e., less than 1 percent by unit cost and less than 5 percent by total material costs) can be considered de minimis and exempt from AIS requirement. It is ultimately the borrower who decides which items to include under this national waiver. If there is any uncertainty on the incidental nature of a product, seek assistance from the WIFIA program.

The WIFIA program generally cannot close a loan with previously incurred construction costs that are not compliant with the AIS requirement.

What to Expect

The WIFIA program has the authority to check that its borrowers understand the AIS requirement and that the requirement is being properly implemented for the entire project. The WIFIA program may conduct periodic document reviews and site walk-throughs during project construction to check AIS implementation as part of its compliance monitoring activities. However, it is the responsibility of the borrower to comply with the AIS requirement and maintain proper documentation.

During application processing, WIFIA applicants may be asked to:

  • Provide evidence of communication on the AIS requirement to contractors and subcontractors. Although not statutorily required, applicants can easily achieve this by including notification in advertised bids and executed contracts. Sample contract language in the WIFIA specifications package is available for use by the borrower.
  • If a project has not yet executed contracts, provide a plan for communication on the AIS requirement to contractors and subcontractors.
  • If the project includes previously incurred costs for construction activities, provide additional documentation to help the WIFIA program check that incurred costs are compliant with this requirement. This request may include: (1) a list of iron or steel products purchased and installed; (2) a sample of AIS certifications for those items; (3) related project waivers; and/or (4) results of a third-party AIS audit.

WIFIA borrowers may be asked to submit documentation to demonstrate continued compliance with the AIS requirement. Key borrower responsibilities for implementation include:

  • Communicate the AIS requirement to contractors and ensure contractors are communicating the requirements to its subcontractors. This is generally included in advertised bids and executed contracts. If communication is not included in the contract documents, provide additional evidence that communication has taken place.
  • If requested, submit draft or executed prime construction contracts for WIFIA projects with adequate federal requirements language included. The WIFIA program does not generally request subcontracts unless there is cause for further review.
  • Identify products that must comply with the AIS requirement and determine whether they can be procured domestically. Communicate to the WIFIA program when products cannot be procured domestically to initiate the program’s independent market review and determine whether there is a need for an availability waiver. Submit additional documentation, such as technical specifications and product information, to support the WIFIA program’s waiver review and approval process, as needed.
  • Maintain up-to-date records or frequently check with prime contractors on AIS compliance documentation for products purchased and installed on the project. This can help the borrower prevent non-compliant products from being permanently incorporated into the project and triggering a non-compliance event. The WIFIA program requires AIS documentation to be maintained for three years after WIFIA project completion. The key to borrower compliance is collecting adequate AIS documentation for installed products that are covered by the requirement.
  • Report any issue with noncompliance to the WIFIA program based on the borrower’s review of purchased and installed products on contracts and subcontracts that must comply with the AIS requirement.

Resources

Build America, Buy America Act

The Build America, Buy America Act (BABA) (Title IX of PL 117-58) establishes domestic preference requirements to maximize the purchase of goods produced in the United States. The BABA requirement applies to federal financial assistance awards and includes all expenditures by a Federal agency to a non-Federal entity for an infrastructure project (Section 70912(4) of PL 117-58). The BABA requirement does not apply to for-profit organizations, but otherwise includes loans issued through the WIFIA program after the effective date of BABA (May 14, 2022).

WIFIA borrowers may be covered under the WIFIA program’s BABA planning and design waiver (pdf) (289 KB) for projects if they initiated planning design activities prior to the effective date of BABA (May 14, 2022) and should consult with the program for applicability. The program will determine if a project is covered by the WIFIA program’s BABA planning and design waiver.

The BABA requirement specifies domestic preference requirements in three product categories: iron and steel, manufactured products, and construction materials. The iron and steel product category includes products that are primarily iron and steel. Construction materials include an article, material, or supply that consists of a singular material of non-ferrous metals, plastic or polymer-based products, optical fiber, fiber optic cable, glass, lumber, engineered wood, or drywall.

All products used in water infrastructure projects will fall under one of the three product categories, except for cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives, which are specifically excluded in the BABA. Therefore, manufactured goods cover the remaining products that are not excluded or not classified in the iron and steel and construction materials product categories.

Only products permanently incorporated on a project are subject to the BABA requirement, and these products must be produced in the U.S. and have accompanying BABA compliance documentation for the products. The criteria for “produced in the U.S.” are separately defined for each product category.

All iron and steel items used in covered projects must be produced in the United States. This means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.

All manufactured products used in covered projects must be produced in the United States. This means the manufactured product was manufactured in the United States, and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product.

All construction materials used in covered projects must be manufactured in the United States. This means that all manufacturing processes for the construction material occurred in the United States.

The Office of Management and Budget’s Made in America Office (MIAO) is the lead office directing BABA implementation guidance across all federal agencies. MIAO issued final implementation guidance (OMB Guidance M24-02 (pdf) (318 KB)) and established new regulations at 2 CFR Part 184 to establish government-wide direction for BABA implementation. This guidance is supplemented by EPA’s BABA Implementation Procedures for Office of Water Financial Assistance Programs (or OW’s Build America, Buy America Implementation Procedures (pdf) (486 KB)). As new information becomes available on WIFIA-specific program implementation, separate program updates will be provided and incorporated in this borrower guide.

The Build America, Buy America Act is different from the Buy American Act. Whereas the Buy American Act applies to direct federal procurement, BABA applies to federal financial assistance.

The BABA requirement is a separate requirement from AIS, which is also required by the WIFIA program. AIS is a statutory requirement of the program. Both requirements cover domestic preference and need to be considered. Nevertheless, BABA’s manufacturing standard for predominantly (or primarily) iron and steel products are the same as for covered iron and steel products listed under AIS, except for primarily iron and steel valves and reinforced precast concrete, which is further explained in OW’s Build America, Buy America Act Implementation Procedures. Compliance documentation for covered iron and steel products under AIS will also satisfy the BABA requirement, which eases implementation for projects that are subject to both AIS and BABA requirements.

BABA allows the WIFIA program to grant waivers in specific circumstances, with similar authorities as described in the above American Iron and Steel Requirement section of this document. The WIFIA program will apply similar waiver procedures under BABA; however, additional touchpoints are required with MIAO to advance waiver requests to public comment prior to its approval. Borrowers should expect BABA waivers to take considerably more time to process than AIS waivers. See WIFIA’s BABA Waiver Process – How it Works (pdf) (561.4 KB)

There are also national waivers that are immediately available for borrower use and do not require additional approval. The EPA National De Minimis Waiver (pdf) (2.9 MB) for the BABA requirement can be used at the borrower’s discretion to waive the BABA requirement for products totaling up to 5 percent of total project costs; it is ultimately the borrower who decides which items to include under this national waiver.

As the BABA requirement and implementation are still evolving, additional national waivers are being considered across the Agency. If there is any uncertainty in the availability and applicability of a national waiver or in the need for a project-specific waiver, seek assistance from the WIFIA program.

The WIFIA program cannot close a loan that is not compliant or is not in remediation to return to compliance with this requirement.

What to Expect

Note: On June 22, 2022, the WIFIA program issued a program waiver that waives the BABA requirement for projects that can demonstrate design planning efforts were initiated prior to May 14, 2022, the effective date of BABA. The WIFIA program does not impose the BABA requirement on projects that executed a WIFIA loan prior to May 14, 2022.

WIFIA staff will evaluate and communicate the applicability of this waiver for WIFIA projects during the loan application and due diligence process. AIS requirements will still apply to these projects.

During application processing, WIFIA applicants may be asked to:

  • Provide evidence of planning and design documents for the project elements included in the WIFIA loan to further evaluate the applicability of the WIFIA Program Waiver.
  • Provide evidence of communication on the BABA requirement to contractors and subcontractors. Applicants can easily achieve this by including notification in advertised bids and executed contracts. The BABA requirement should be communicated to contractors and subcontractors for all projects subject to the requirement. However, also communicate in the contract language whether the WIFIA project is subject to the WIFIA Program Waiver so that contractors and subcontractors know if it is an approved pathway towards compliance for the project.
  • If a project has not yet executed contracts, provide a plan for communication on the BABA requirement to contractors and subcontractors.

WIFIA borrowers may be asked to submit documentation to demonstrate continued compliance with the BABA requirement. Key borrower responsibilities for implementation include:

  • Communicate the BABA requirement to contractors and ensure contractors are communicating the requirements to its subcontractors. This is generally included in advertised bids and executed contracts that are a general reporting requirement of the loan and checked by the WIFIA program. If communication is not included in the contract documents, provide additional evidence that communication has taken place.
  • If requested, submit draft or executed prime construction contracts for WIFIA program review to ensure that adequate compliance language is included. The WIFIA program does not generally review subcontracts unless there is cause for further review.
  • Procure domestic products that will be permanently incorporated in the project. Communicate to the WIFIA program when products cannot be procured domestically to initiate the program’s independent market review and determine whether there is a need for an availability waiver. Submit additional documentation, such as technical specifications and product information, to support the WIFIA program’s review and approval process, as needed.
  • Communicate to the WIFIA program if implementation of the BABA requirement results in project impacts for which a public interest waiver or cost waiver may be needed and provide supporting documentation demonstrating the need.
  • Maintain up-to-date records or frequently check with prime contractors on BABA compliance documentation for products purchased and installed on the project. This can help the borrower prevent non- compliant products from being permanently incorporated into the project and triggering a non- compliance event. The key to borrower compliance is collecting adequate BABA documentation for installed products that are covered by the requirement.
  • Report any issue with noncompliance to the WIFIA program based on the borrower’s review of purchased and installed products on contracts and subcontracts that must comply with the BABA requirement.

Resources

Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment

In August 2018, the federal government enacted the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Public Law, PL 115-232). Section 889(b)(1) of PL 115-232 prohibits an executive agency from obligating or expending loan or grant funds to procure or obtain or to enter into, extend, or renew a contract to procure or obtain “covered telecommunications equipment or services” that are substantial or essential to any system, or as critical technology to any system. Federal loan and grant programs are required to implement this requirement within two years of enactment.

“Covered telecommunications equipment or services” (PL 115-232, Section 889(f)(3)) include:

  • Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
  • For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities).
  • Telecommunications or video surveillance services provided by such entities or using such equipment.
  • Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

The prohibition does not apply to:

  • Procuring with an entity to provide a service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements.
  • Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.

Effective August 13, 2020, borrowers cannot submit these costs for WIFIA disbursement as they are no longer eligible costs and the WIFIA program, as a federal loan program, is prohibited from reimbursing for telecommunications equipment and services covered under this law.

What to Expect

To ensure compliance with this requirement, borrowers are asked to:

  • Maintain evidence of borrower communication to contractors and subcontractors of the need to comply with the prohibition. This is generally provided in bid advertisements and executed contracts.
  • Avoid procurement of “covered telecommunications equipment, services, and systems” on contracts that involve the use of federal funds. Access System for Award Management (SAM) to verify that entities providing telecommunications equipment, services, and systems on the WIFIA project are not listed on the exclusion list.
     

Uniform Relocation Assistance and Real Property Acquisitions Policies Act

The Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA), 42 U.S.C Part 61, establishes a uniform policy for just compensation of acquired real property and for fair and equitable treatment of persons who are displaced from their homes, farms, or businesses to make way for federal or federally assisted projects. It provides basic guidelines for negotiating the acquisition of real property by the federal government. EPA’s implementing regulations reference the Department of Transportation’s regulations at 49 CFR Part 24. 

This authority applies to WIFIA borrowers who have acquired or will acquire real property, whether temporary or permanent, for the purpose of completing the WIFIA project. The acquisition itself does not need to be federally funded; however, if federal funds are used in any phase of the program or project, this statute applies. 

WIFIA borrowers are required to provide assurances to the WIFIA program that (1) the land acquisition is guided by state law and the land acquisition policies of the URA (42 USC §4651 and 49 CFR §24.102), and (2) property owners or occupants are paid or reimbursed for expenses related to the acquisition of the property, as well as  actual and reasonable expenses incident to relocation, such as moving costs, direct loss of tangible personal property associated with moving or discontinuing a business, and expenses involved in searching for a replacement home or business site. 

Appraisals are required before negotiations can take place with the property owner for land acquisition. Appraisals should be completed by a qualified professional and follow criteria established in 49 CFR §24.103. Using the Uniform Appraisal Standards for Federal Land Acquisition (UASFLA), or the “Yellow Book”, is acceptable but not required. A separate and independent appraisal review should also be conducted to approve or recommend the approval before negotiations take place (49 CFR §24.104). 

There are also circumstances that do not warrant an appraisal of the property. An appraisal may not be required for donations of property by the owner if the owner waives the need for an appraisal; or if the valuation of property, as documented by the WIFIA borrower, has a low fair market value (less than $15,000). Land acquisition can occur before the WIFIA program makes a NEPA determination on the project. The program will review the land purchase under NEPA as part of the environmental review process.

What to Expect

The WIFIA program has the authority to check that its borrowers comply with the requirements of the URA if land acquisition is relevant to the project.

During application processing and once the WIFIA loan is executed, WIFIA borrowers are asked to:

Disclose to the WIFIA program if land acquisition has occurred or will occur.

Certify that the acquisition complies with or will comply with the URA. This disclosure is completed as part of the certification submitted with the letter of interest and loan application and as part of disbursement requests to the WIFIA program.

Provide evidence that URA requirements are met, if requested, which may include initial notification to the landowner, appraisal and appraisal reviews, and offer of just compensation related to the acquisition.

Resources

Labor Laws and Standards

This requirement is included in the WIFIA statute at 33 U.S.C. § 3909(e) by reference to Section 513 of the Federal Water Pollution Control Act (33 U.S.C. § 1372) and primarily covers requirements under the Davis- Bacon and Related Acts and the Contract Work Hours Safety Standards Act (29 CFR Part 5).

The Davis Bacon regulations in 29 CFR Parts 1, 3, and 5 were updated in August 2023 to clarify implementation of these requirements, which are incorporated in the “What to Expect” section below. The updates clarified use of wage determinations in certain federal and federally assisted contracts, clarified applicability and coverage of entities and activities, and provided revisions to the contract provisions found in 29 CFR Section 5.5.

For all prime construction contracts above the $2,000 threshold, borrowers must enclose specific Davis-Bacon language into the prime contracts and ensure the prime contractor includes the same language in all associated subcontracts. Contracted laborers and mechanics are subject to wages at a rate no less than those determined by the U.S. Department of Labor (DOL), also termed federal prevailing wages.

Borrowers must obtain the wage determination for the locality in which a covered activity will take place prior to issuing requests for bids, proposals, quotes, or other methods for soliciting contracts for activities subject to Davis-Bacon. The wage determinations for water infrastructure projects generally fall under the “Heavy” construction type, although the “Building” construction type may also apply. The wage determinations shall be incorporated into solicitations and subsequent contracts. Prime contracts must contain a provision requiring that subcontractors follow the wage determinations incorporated into the prime contract. If the labor classifications in the federal wage determination does not cover certain activities on the construction contract, a wage conformance is needed. See the WIFIA program’s instructions for how to initiate a wage conformance request (coming soon).

Force Account laborers and mechanics employed by a governmental agency or political subdivision are not covered under this Act.

Under the Contract Work Hours Safety Standards Act, borrowers must ensure contractors are receiving overtime pay for work in excess of forty hours for all contracts above the $100,000 threshold. To ensure proper wages are paid, borrowers must collect certified payrolls from contractors and periodically conduct personnel interviews to verify proper wages are being paid under a contract.

Many states also have their own prevailing wage laws; however, state prevailing wage laws are not a substitute for federal prevailing wage laws. Requirements for both laws must be met and the greater of the two wages should be applied to the contracts (where equivalent state labor categories can be discerned). Where contracts include incorrect wage determinations, the borrower must take steps to reissue or amend the contract to retroactively incorporate the proper wage determination to the beginning of the contract and compensate for any increases in wages resulting from the wage determination correction.

There are no waivers available for requirements under the Davis- Bacon and Related Acts outside of wage conformance requests for addition of prevailing wages for labor classifications that are not listed or that do not fall under existing classifications in the relevant federal wage determination. The WIFIA program cannot close a loan that is not compliant or is not in remediation to return to compliance with this requirement.

What to Expect

The WIFIA program has the authority to check that its borrowers understand the Davis-Bacon requirements and that those requirements are being properly implemented for the entire project. The WIFIA program may conduct periodic document reviews and site walk-throughs during project construction to check for implementation of Davis-Bacon requirements as part of its compliance monitoring activities.

During application processing, WIFIA applicants may be asked to:

  • Provide executed construction contracts (active and completed) that include specified Davis- Bacon contract language. DOL regulations require specific language and relevant wage determinations be included in bid documents and contracts.
  • Provide executed construction contracts (active and completed) that include relevant wage determinations. DOL publishes wage determinations that specify the prevailing wage (including fringe benefits) for a given construction type, labor category, and locality in which the work is conducted. These wages are different from the minimum wage laws and are updated regularly on SAM. If state prevailing wages also apply, show evidence that a comparison of labor wage rates and labor classifications have been conducted and that the higher of the wages apply to the contract. The WIFIA applicant is responsible for directing use of proper wages for the contract.
  • If a project has not yet executed contracts, provide sample front-end documents that will be used in all relevant bids and contracts issued for the project.
  • If the project includes previously incurred costs for construction activities, provide additional documentation or verification to help the WIFIA program check that incurred costs are compliant with this requirement. This request may include: (1) results of a third-party Davis-Bacon audit of the project or specific contract(s); (2) a random sample of certified payroll reports and personnel interviews collected for the contract(s); and/or (3) other borrower evidence of compliance checks for reporting and paid wages (including fringe benefits).

As a WIFIA program check on compliance after loan execution, WIFIA borrowers may be asked to submit documentation to demonstrate continued compliance with the labor laws and standards. Key borrower responsibilities for implementation include:

  • Communicate Davis-Bacon requirements to contractors and ensure contractors are relaying the requirements to their subcontractors. Statutorily, this communication is required in advertised bids and executed contracts that are a general reporting requirement of the loan and checked by WIFIA. While the WIFIA program may check borrower’s prime contracts for this language, the onus is on borrowers and prime contractors to verify the same contract language is applied to all relevant subcontracts and that the subcontracts also comply with this requirement.
  • Identify the proper wage rates to apply in advertised bids and subsequently in executed contracts. During advertisement, borrowers should monitor and update the bid with the latest applicable version of DOL’s published wage determinations. Borrowers must award contracts within 90 days of bid close to “lock” the wage determinations included in the advertisement. Otherwise, an updated wage determination is required. Seek assistance from the WIFIA program on selecting proper wage determinations, as needed.
  • For collaborative delivery contracts (e.g., Design-Build, Progressive Design-Build, Construction Management at Risk), DOL has interpreted each guaranteed maximum price (GMP) package as an additional obligation to the original contract agreement which is substantial enough to require an updated wage determination. According to DOL’s AAM157 guidance on ‘Application of DBA to Contracts with Options,’ if there is “substantial and segregable amount[s] of construction work” that can be exercised using amendments or addenda to the contracts, these types of contracts should include a current wage determination at the time an amendment - with the purpose of initiating construction on a package or phase of a project - is exercised. See DOL’s AAM157 guidance on ‘Application of DBA to Contracts with Options’ below. This was also clarified in the 2023 regulatory updates.
  • If requested, submit draft or executed prime construction contracts for WIFIA program review to ensure that adequate compliance language and the appropriate federal wage rates are included. The WIFIA program does not generally review subcontracts unless there is cause for further review.
  • If a borrower encounters a unique situation at a site that presents uncertainties regarding Davis- Bacon applicability, the borrower must discuss the situation with EPA before authorizing work on that site. This includes any borrower requests for wage conformances for labor classifications that may not exist in the wage determinations. A conformance request must be initiated by the borrower, submitted by EPA, and approved by DOL.
  • If state prevailing wages also apply, ensure that the certified payrolls reflect paid wages that are also, at a minimum, equal to the corresponding federal prevailing wage rates for the contract.
  • Post proper Davis-Bacon posters and make readily available the applicable prevailing wage determinations at the construction site(s).
  • Maintain up-to-date records for at least three years after project completion. Records should include:
    • Certified payrolls. Borrowers must collect certified payrolls from contractors weekly and check that payroll reports are accurate and paid wages are consistent with the contract’s wage determination and overtime requirements.
    • Personnel interviews. Borrowers must conduct periodic interviews of workers to ensure proper wages are being paid and document the interviews by completing SF-1445: Labor Standards Interview. Although the WIFIA program does not require a specific number and frequency, interviews should occur throughout the course of construction and include a sufficient sample of job classifications represented on the job, as well as across various contracts. A common recommendation is to conduct interviews within two weeks of the start of a contract and two weeks prior to the completion of the contract, although more interviews may be required.
    • Apprenticeship and trainee programs. Borrowers must confirm apprentice and trainee program registrations and check that ratio requirements under the approved program(s) are met. DOL’s contract provisions clarify that ratios of journeyman to apprentice for any labor classification should not exceed the program ratio designated for the registered program.

Resources

Debarment and Suspension

Executive Order 12549 provides a governmentwide system for debarment and suspension. A person or business who is debarred or suspended is excluded from activities in which grants, cooperative agreements, contracts of assistance, loans, and loan guarantees are being used to fund the activity. Borrowers must ensure their contractors and subcontractors are not suspended or debarred prior to issuing contracts.

  • For prime contractors, registration under the governmentwide System for Award Management (SAM) is required and borrowers must check their registration under SAM.
  • For lower tier contracts (i.e., subcontracts), OMB guidance under 2 CFR Part 180 Subpart C allows the borrower to verify whether subcontractors are debarred or suspended from government-funded activities using one of three options:
    1. check subcontractor status on SAM;
    2. collect a certification from the subcontractor; or
    3. add a clause or condition to the covered transaction with the subcontractor.

Additionally, Section 306 of the Clean Air Act (CAA) and section 508 of the Clean Water Act (CWA), as implemented by Executive Order 11738 (1973), prohibit performance of Federal assistance agreements at facilities disqualified due to certain violations of the CAA or CWA. As described in the respective CAA and CWA sections, a person or entity who has been convicted of a criminal offense or has a serious pattern of civil violations may be barred from receiving Federal government contracts, loans, and grants. Statutory debarments occur by operation of law following criminal conviction under CWA (Section 508) or CAA (Section 306). The ineligibility lasts until the Debarring Official certifies that the condition giving rise to conviction has been corrected.

What to Expect

The WIFIA program has the responsibility to check that its borrowers are not debarred or suspended from receiving federal funds.

In its letter of interest submittal, WIFIA prospective borrowers are asked to:

  • Disclose to EPA if they are currently debarred or suspended; proposed for debarment or suspension; or indicted, convicted, or had a civil judgment rendered against it for any of the offenses listed in the regulations governing debarment and suspension at 2 CFR Part 180 and 2 CFR Part 1532; or declared ineligible or excluded from participating in federal contracts or contracts paid for with federal funds. This disclosure is completed as part of the certification submitted with the letter of interest.

During application processing, WIFIA applicants are asked to:

  • Disclose their debarment and suspension status as part of the WIFIA application and prior to loan closing.

For all contracts used on the project, WIFIA borrowers are expected to:

  • Communicate to potential contractors the requirement to certify that the contractor is not debarred or suspended and to require their subcontractors to similarly certify. This is generally provided in bid advertisements and executed contracts. Although no specific contract language is required, sample contract language in the WIFIA specifications package is available for use by the borrower.
  • Verify that the contractor and its subcontractors are not debarred or suspended. For prime contractors, access SAM to verify the awarded prime contractor is not disqualified or excluded. For lower tier contracts, ensure the prime contractor has verified their subcontractors are not suspended or debarred either by (1) checking exclusions in SAM, (2) collecting a signed certification from the subcontractor, or (3) including a clause or condition for the covered transaction with the subcontractor.

Resources

New Restrictions on Lobbying

Recipients of federal grants, cooperative agreements, contracts, and loans are prohibited by 31 U.S.C. § 1352 from using federal funds to pay any person for influencing or attempting to influence any officer or employee of an agency, a member of Congress, an officer or employee of Congress, or an employee of a member of Congress with respect to the award, continuation, renewal, amendment, or modification of any of these instruments. This requirement also applies to the WIFIA program, which follows the EPA implementing regulations on lobbying restrictions prescribed at 40 CFR part 34.

WIFIA borrowers are required to certify that (1) they have not made, and will not make, such a prohibited payment, (2) they will be responsible for reporting the use of non-federal funds for such purposes, and (3) they will include these requirements in subsequent contracts and subcontracts that exceed $100,000 and obtain necessary certifications from those entities.

What to Expect

The WIFIA program has the responsibility to check that its borrowers are not making prohibited payments related to lobbying using federal funds.

During application processing and prior to issuing a loan, WIFIA applicants are asked to:

  • Provide completed "Certification Regarding Lobbying" Form (EPA Form 6600-06) (pdf) (586 KB) and if applicable, the "Disclosure of Lobbying Activities" Form (SF-LLL), which are included in the WIFIA Application. Use the WIFIA Loan ID as the EPA Project Control Number.
  • Provide evidence of borrower communication to contractors and subcontractors of the need to also comply with restrictions on lobbying. This is generally provided in bid advertisements and executed contracts. Although no specific contract language is required, sample contract language in the WIFIA specifications package is available for use by the borrower.

Once a WIFIA loan is executed, key borrower responsibilities for implementation include:

  • Continue to comply with and communicate to contractors and subcontractors of the need to comply with restrictions on lobbying. The WIFIA program may check advertised bids and executed construction contracts, which may be a reporting requirement of the loan, for this type of communication to contractors.

Resources

Age Discrimination Act, Section 504 of the Rehabilitation Act, and Title VI of the Civil Rights Act of 1964

Three important laws prohibit discrimination in the provision of services or benefits, on the basis of race, color, national origin, sex, handicap or age, in programs or activities receiving federal financial assistance. These laws are:

  • Title VI of the Civil Rights Act of 1964 (pdf) (261 KB), 42 U.S.C. § 2000d et seq., as amended, states that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
  • Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., as amended and supplemented by Executive Orders 11914 and 11250, states that “(n)o otherwise qualified individual with a disability in the United States…shall, solely by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance…,” and
  • The Age Discrimination Act of 1975 (pdf) (135 KB), 42 U.S.C. § 6101 et seq., as amended, states that “(n)o person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving financial assistance…”

Borrower compliance with these laws is not limited to the project funded by the WIFIA program. These laws apply to the WIFIA borrower and its operations in its entirety. EPA’s implementing regulations for programs and activities receiving federal assistance are covered under 40 CFR Part 7. 

What to Expect

The WIFIA program has the authority to check that its borrowers are complying with civil rights laws and are developing projects, programs, and activities on a non-discriminatory basis.

During application processing and prior to issuing a loan, WIFIA applicants are asked to:

  • Provide a completed “Pre-Award Compliance Review Report” (EPA Form 4700-4) (pdf) (887 KB), which is included in the WIFIA Application, and if requested, additional information on any outstanding civil actions against the applicant.
  • If requested, provide evidence of communication to contractors and subcontractors of the need to also comply with civil rights laws. This is generally provided in bid advertisements and executed contracts.

Once a WIFIA loan is executed, key borrower responsibilities for implementation include:

  • Continue to comply with and communicate to contractors and subcontractors of the need to comply with civil rights laws and regulations. The WIFIA program may check advertised bids and executed construction contracts, which are a general reporting requirement of the loan, for this type of communication to contractors.
  • Notify the WIFIA program of new civil suits that have been filed against the borrower that may have material adverse effect.
     

Section 13 of the Clean Water Act

As codified in 33 U.S.C. § 1251, Section 13 provides that “No person in the United States shall on the ground of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…” EPA implementing regulations for this provision of the CWA is prescribed in 40 CFR Part 7 and enforced similarly to those already established for racial and other discrimination under Title VI of the Civil Rights Act of 1964.

What to Expect

The WIFIA program has similar borrower expectations outlined in the above Age Discrimination Act, Section 504 of the Rehabilitation Act, and Title VI of the Civil Rights Act of 1964 section for implementing CWA Section 13.
 

Equal Employment Opportunity

Executive Order 14173, Ending Illegal Discrimination and Restoring Merit-Based Opportunity, revokes Executive Order 11246, Equal Employment Opportunity. However, the Department of Labor (DOL) issued regulations implementing certain sections of the EO 11246 at 41 CFR Part 60. Until DOL revokes these regulations, they remain effective law and compliance is required. 

Implementing guidelines can be found in DOL’s regulations at 41 CFR Part 60. Compliance is based on implementation of the Equal Opportunity Clause, and specific affirmative action obligations required by the Standard Federal Equal Employment Opportunity Construction Contract Specifications, as set forth in 41 CFR Part 60-4.

What to Expect

The WIFIA program has the authority to check that its borrowers are complying with laws and regulations related to Equal Employment Opportunity.

During application processing and once the WIFIA loan is executed, WIFIA borrowers are asked to:

  • If requested, provide executed construction contracts (active and completed) that include specified EEO language.
  • In bid solicitations, provide an additional “Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity” as described at 41 CFR Part 60-4. The specific language is included in the WIFIA specifications package. As of February 2025, the locality participation goals have been taken offline. Please use any information you may have from your previously executed contracts or from state and local goals and document your efforts in the project file.
  • Prominently display “Know Your Rights” poster where it is accessible to all applicants for employment, employees, contractors, and subcontractors.
  • Notify DOL’s Office of Federal Contract Compliance Programs within 10 working days of award of a construction contract or subcontract in excess of $10,000. As of February 2025, the OFCCP reporting system has been taken offline. Please document the attempt to report in your project file and check back with OFCCP at a later time.
     

Disadvantaged Business Enterprise

The Disadvantaged Business Enterprise (DBE) Program is an EPA outreach, education, and goal program designed to increase and encourage the utilization and participation of DBEs in procurements funded by EPA assistance programs (73 FR 15904). The implementing regulations can be found at 40 CFR Part 33.

What to Expect

Although listed in WIFIA’s regulations at 40 CFR Part 35 Subpart Q, the WIFIA program is a federal loan program and therefore, is not covered by this requirement. 

The WIFIA program does not conduct compliance monitoring activities related to this Act after loan execution.
 

Demonstration City and Metropolitan Development Act

Executive Order 12372 and Section 204 of the Demonstration Cities and Metropolitan Development Act, 42 U.S.C 3301 et seq., aim to foster an intergovernmental partnership between federal, state, tribal, and local governments. The executive order encourages federal coordination with local officials on the planning and construction of public facilities within their jurisdiction.

What to Expect

Although listed in WIFIA’s regulations at 40 CFR Part 35 Subpart Q, the WIFIA program is not identified as a program requiring intergovernmental review under this Executive Order.

The WIFIA program does not conduct compliance monitoring activities related to this Act after loan execution.
 

Drug-Free Workplace Act

Under the Drug-free Workplace Act of 1988, 41 U.S.C. § 8101 et seq., federal contractors or any program receiving federal grants are required to establish a drug-free workplace policy. Governmentwide implementation of the Act is prescribed at 2 CFR Part 182, Subparts A through F.

What to Expect

Although listed in WIFIA’s regulations at 40 CFR Part 35 Subpart Q, the WIFIA program is a federal loan program and therefore is not covered by this Act.

The WIFIA program does not conduct compliance monitoring activities related to this Act after loan execution.
 

Co-Funding with Other Federal and State Programs

As a supplementary financing program, WIFIA borrowers may also receive funds from other federally financed programs such as the Clean Water and Drinking Water State Revolving Fund Programs (i.e., SRF programs), Bureau of Reclamation Title XVI Grant Program, and Federal Emergency Management Agency (FEMA) Disaster Relief Funds. 

Some of these programs may have overlapping federal requirements; however, each program may have a separate responsibility (and monitoring procedures) to ensure their borrowers comply with the federal requirements outlined for that program. To the extent possible and reasonable, the WIFIA program will work with other federal programs that are co-funding with WIFIA borrowers to share information on federal compliance activities that may be relevant across the programs.

For example, WIFIA borrowers may also receive funding from their SRF program for a project. To help gain efficiencies for both programs, the WIFIA program might coordinate environmental reviews where there are overlapping elements with the state environmental review process. The WIFIA program might also work collaboratively with the state SRF on AIS-related matters or with other federal agencies on Build America, Buy America -related matters to coordinate waiver processes or compliance oversight responsibilities.

On the other hand, some of these federally financed programs may have similar but different requirements. WIFIA borrowers should evaluate these separate requirements in their entirety such that implementation will satisfy both sets of requirements. For example, WIFIA borrowers may also receive financing from the Department of Transportation, which may trigger Buy American requirements. AIS and Buy American requirements are separate and distinct. One does not replace the other. WIFIA borrowers will have to satisfy both requirements.
 

Overlapping Federal and State Laws and Regulations

Federal and state laws and regulations do not replace one another. WIFIA borrowers should evaluate federal and state requirements in their entirety such that implementation will satisfy both sets of requirements. For example, the Davis-Bacon Act requires that laborers and mechanics are paid at least the federal prevailing wage laws. If the state prevailing wage law provides higher wages than the federal prevailing wage for the locality and for an equivalent labor category, then the use of the state prevailing wage for that locality and equivalent labor category can satisfy both federal and state prevailing wage law requirements for paid wages. However, the use of higher state wage rates does not preclude the WIFIA borrower from having to comply with other requirements under the Davis-Bacon Act.

Further, federal requirements do not replace other federal requirements, unless explicitly stated. The WIFIA program includes two domestic preference requirements: AIS and Build America, Buy America. Although the WIFIA program has made efforts to develop implementation procedures to overlap between these requirements, both requirements need to be considered to ensure compliance with each. For example, the listed products under AIS should also consider the incidental nature of the listed product when considering use of the de minimis list.
   

Requirements for Professional Service Contracts vs Construction Contracts

Many federal requirements are specific to the construction activities and do not apply to professional services contracts. Contract language for AIS requirements, Build America, Buy America requirements, Davis Bacon and Related Acts, and Equal Employment Opportunity do not apply to professional services contracts. On the other hand, professional services contracts do require reference to the economic and miscellaneous authorities listed in this document (such as Debarment and Suspension, Lobbying Restrictions, and Uniform Act).

All contracts must abide by the civil rights and non-discrimination laws and regulations, whether they are referenced in contracts or not.
 

Collaborative Delivery Projects

In addition to traditional design-bid-build projects, the WIFIA program funds many projects that use collaborative delivery methods such as design-build (DB), progressive design-build (PDB), construction management at-risk (CMAR), and construction management/general contractor (CMGC). In such agreements between the WIFIA borrower and the project delivery firm, the WIFIA borrower should ensure the proper communications have been conveyed to all relevant parties implementing the project, and that roles and responsibilities for compliance documentation and reviews have been clearly delineated between parties. This may require communication and updates to relevant compliance documents (such as wage determinations) as part of the collaborative delivery agreement and/or for each individual package that is issued under the agreement.
 

Borrower Guide to Federal Requirements – Revision History

See  Revision History of the WIFIA Borrower Guide (pdf) (568.99 KB)
 

WIFIA Program Points of Contact for Federal Requirements

In any case of uncertainty with implementation, the WIFIA borrower should seek timely clarification and assistance. 

For general inquiries on federal requirements for the WIFIA program or for borrowers processing their loan applications, email the WIFIA Program (wifia@epa.gov).

For borrowers with executed loans, email your portfolio manager or the General WIFIA Portfolio Email Box (wifia_portfolio@epa.gov).

Water Infrastructure Finance and Innovation Act (WIFIA)

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Last updated on June 30, 2025