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NACWA met with the U.S. Environmental Protection Agency (EPA) last week to discuss the Buy American requirements included in the Fiscal Year (FY) 2014 spending bill passed by Congress in January. In the bill, Congress stipulated that State Revolving Fund (SRF) projects must comply with Buy American provisions, requiring that products consisting “primarily of iron and steel” be American-made. 

EPA Acting Administrator for Water, Nancy Stoner, issued a memo  last week to the EPA Regional Offices titled “Application of Buy American Requirements to Fiscal Year 2014 Clean Water State Revolving Fund Assistance Agreements”. The memo details the requirements that apply to SRF funds and notes that EPA plans to offer further information in the form of guidance as soon as possible. In line with EPA’s short timetable for the guidance, NACWA has been asked by the Agency to seek its members’ views on how EPA should interpret some of the language in a manner that can help ensure the certification and waiver processes are the least onerous for the Nation’s clean water agencies.

Below are a number of areas where there are opportunities for input from NACWA members. Please send any comments to Claire Moser at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by this Friday, February 14.

Buy American Provisions

The Consolidated Appropriations Act of 2014 (the FY 2014 spending bill passed by Congress - see January 17 Clean Water Current) includes language   adding the Buy American requirement to both Clean Water and Drinking Water SRF loan programs. In short, no SRF funds “shall be used for a project for the construction, alteration, maintenance, or repair of a public water system or treatment works unless all of the iron and steel products used in the project are produced in the United States.”

This language is less stringent than the previous Buy American provisions contained in the American Recovery and Reinvestment Act (ARRA) which included the much broader term “Iron, steel, or relevant manufactured goods.”

The new provisions define “iron and steel products” as made “primarily” of iron or steel. There is no definition of “primarily” included in the legislative language, however, and it can be interpreted in a number of ways, including but not limited to a percentage, such as more than 50%.

To further clarify “primarily”, the language lists some specific iron and steel products, including “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, and construction materials.” 

EPA is exploring how to define “primarily” for purposes of its guidance, including whether to use the dictionary definition of more than 50%, another significant percentage or even some type of industry standard that can be defined by a more flexible, narrative approach. 

EPA is also seeking input on the accuracy of the list of products that are primarily made of “iron and steel” and, specifically, what items should be included under the term “construction materials.” At the stakeholder meeting with EPA last week, NACWA, along with other stakeholders, discussed whether Congress could possibly have intended small “construction materials” such as nuts and bolts to be included under the Buy American provisions. Utility input on this is critical. 

Waiver Process

The language includes the same waiver process included in the ARRA. Waivers can be issued for a specific case or a category of cases where it would be “inconsistent with the public interest,” where products produced in the United States are not “in sufficient and reasonably available quantities and of satisfactory quality,” or where inclusion of these products will “increase the cost of the overall project by more than 25 percent.” 

EPA is specifically interested in ways to streamline the waiver process and opportunities to improve the waiver process put in place as part of ARRA.

EPA is also looking at what threshold, if any, they should use for the de minimis waiver and whether it should be a percentage or a dollar value per unit. As part of ARRA, Buy American requirements covered de minimis incidental components in any ARRA funded projects where such components made up no more than 5 percent of the total cost of the materials used in and incorporated into a project.

Certification of Compliance with Buy American Provisions

Finally, EPA is seeking the most efficient ways to document compliance with these provisions. In general, EPA would accept a letter provided by the utility from the manufacturers stating that the products comply with Buy American provisions. The Agency is considering creating sample letters along these lines as well as contract language available to ensure that municipalities are able to easily comply with the requirements.  Any concerns or input NACWA members have relative to the waiver process and how to make it as efficient as possible would be appreciated.

Application of Buy American Requirements

Application of the Buy American Requirements extend not only to assistance agreements funded with FY 2014 appropriations, but to all assistance agreements executed on or after January 17, 2014 and prior to October 1, 2014, whether the source of funding is prior year’s appropriations, state match, bond proceeds, interest earnings, principal repayments, or any other source of funding so long as the project is financed by an SRF assistance agreement. If a project began construction prior to January 17, 2014, but is financed or refinanced through an assistance agreement executed on or after January 17, 2014, and prior to October 1, 2014, Buy American requirements will apply to all construction that occurs on or after January 17, 2014, through completion of construction, unless, as is likely, engineering plans and specifications were approved by a State agency prior to enactment of the Appropriations Act.

Again, please send any comments on the language and definitions discussed above or any other concerns you may have with the language to Claire Moser at This e-mail address is being protected from spambots. You need JavaScript enabled to view it by this Friday, February 14.