WIFIA_Borrowers Guide_NOV_2022 - COE specific.pdf

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BORROWER GUIDE TO

FEDERAL REQUIREMENTS

LAST UPDATED: November 2022 i

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, including in any appendices, 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.

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VERSION HISTORY

Below documents substantive content updates to this Borrower Guide since its initial release.

November 2022:

• Added Build America, Buy America Requirements section under Latest Updates on Federal

Requirements.

• Added Suggested Contract Language for Build America, Buy America Requirements under

Appendix: WIFIA Specifications and Bid Contract Language

• Clarifications to collaborative delivery projects and wage determinations under Davis Bacon Act based on additional guidance from Department of Labor under Labor Laws and Standards

• Additional clarifications to required contract language used for Equal Employment Opportunity

(EEO) requirements in Appendix: WIFIA Specifications and Bid Contract Language

• Updated hyperlinks to outside sources.

October 2021:

• Added Table of Contents.

• Updated Environmental Authorities section, related to construction status of projects.

• Updated Economic and Miscellaneous Authorities section, related the Uniform Act and real property acquisition.

• Updated Labor Laws and Standards section, related to construction type generally used for water infrastructure projects.

• Updated hyperlinks to outside sources.

March 2021:

• Corrected hyperlinks to outside sources.

December 2020:

• Borrower Guide released.

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Table of Contents Disclaimer

Version History

Introduction

Environmental Authorit ies

Economic and Miscellaneous Authorit ies

Debarment and Suspension Prohibitions Relating to Violations of CWA and CAA with Respect to Federal Contracts, Grants, or Loans

New restrictions on Lobbying

Uniform Relocation Assistance and Real Property acquisition Policies Act

Demonstration City and Metropolitan Development Act

Drug-Free Workplace Act

Civ i l R ights , Non-Dis cr iminat ion, and E qu al E mploy ment Op p ortuni ty A uth or i t ies . 11

Age Discrimination act, Section 504 of the Rehabilitation Act, and Title VI of the Civil Rights Act of 1964 11

Section 13 of the CWA

Equal Employment Opportunity

Participation by Disadvantaged Business Enterprises in Procurement under Environmental Protection Agency (EPA) Financial Assistance Agreements

A m e r i c a n I r o n a n d S t e e l ( A I S ) R e q u i r e m e n t

Labor Laws and Standards

Latest Updates on Federal Requirements

Build America, Buy America Act (BABA)

Prohibition on Certain Telecommunication and Video Surveillance Services or Equipment

General Guidance on Compliance with Federal Requirements

Appendix: WIFIA Specif ication Package and Bid Contract Language . . . . . . . . . . . . . . . . . . . . . . . . A-1

INTRODUCTION

Borrowers of loans provided under the Water Infrastructure Financing and Innovation Act (WIFIA), 33 U.S.C. § 3901 et seq., are required to comply with all federal laws and regulations. This document highlights important social and economic federal laws, regulations, and Executive Orders specifically listed in the WIFIA regulations (40 CFR Part 35 Subpart Q) as well as any relevant updates to the federal requirements. WIFIA borrowers have the prime responsibility for ensuring their staff and contractors comply with all federal requirements for a project. The project is subject to additional review of these federal requirements by the WIFIA Program during application processing and after loan execution.1

This guide provides an overview of the following federal requirements and identifies key borrower responsibilities and additional resources that may be helpful to the borrower for implementing each requirement.

1 Although the WIFIA program provides oversight on loans issued to state infrastructure financing authorities, the program does not conduct federal requirements reviews during application processing or loan monitoring for these borrowers. These requirements are monitored and managed through the individual SRF programs.

ENVIRONMENTAL AUTHORITIES

OVERVIEW

The National Environmental Policy Act (NEPA) and various environmental crosscutting authorities fall under the Environmental Authorities listed in the WIFIA regulations at 40 CFR Part 35 Subpart Q.

The 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 issuance of a loan under the WIFIA program constitutes an action that triggers an environmental review of the project scope covered by the loan. The status of NEPA determinations for WIFIA's loans is listed on the WIFIA closed loan web page under the environmental review status column.

Prior to issuing a loan, the WIFIA program must review the environmental impacts of the project and make an independent determination under NEPA. The Council of Environmental Quality has established NEPA implementing regulations at 40 CFR part 1500 for meeting these requirements and the WIFIA program is guided by EPA’s implementing regulations at 40 CFR Part 6. The WIFIA program’s environmental review considers project impacts and mitigation measures across various environmental crosscutting authorities, 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)

• Cleans Water Act (Section 404)

• 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. §§ 1531-1599)

• Environmental Justice (Executive Order 12898)

• 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)

• 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.)

https://www.epa.gov/wifia/wifia-closed-loans

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; however, borrowers can expect to provide available environmental assessments, consultations, or other documentation to support the WIFIA program’s review of environmental impacts and mitigation measures as part of application processing.

WIFIA projects must comply with all environmental cross-cutting authorities. Compliance with cross-cutting authorities is reviewed and documented by the WIFIA program. The WIFIA program may conduct additional consultations related to federal cross-cutting authorities, as necessary for the environmental review. Compliance with the environmental cross-cutting authorities 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. 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. Based on information supplied by the WIFIA borrower and the borrower responses to the WIFIA PEA Questionnaire (included as an appendix to the WIFIA application), the WIFIA program will evaluate the applicability of the project under 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 WIFIA 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.

WHAT TO EXPECT

The WIFIA program has the responsibility to conduct an environmental review and issue a determination for the project scope covered by a WIFIA loan and to ensure any monitoring requirements are being implemented by the WIFIA borrower prior to and through construction. The WIFIA program must conduct an environmental review prior to issuance of a WIFIA loan. 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. 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 or activities that may diminish or alter the character of historic properties. Components of the WIFIA project that do not or cannot comply with environmental cross-cutting authorities may be excluded from the WIFIA project. As part of its compliance monitoring activities, the WIFIA program will conduct periodic document reviews and site walk-throughs during project construction, where applicable, to ensure specific requirements outlined in the WIFIA environmental documentation are met.

Prospective borrowers are not required to submit environmental documentation or findings when submitting their letters of interest (LOIs). However, as part of the WIFIA application, borrowers can expect to:

Identify any consultations with cross-cutting agencies that have already been completed or are ongoing.

Discuss the environmental review with the WIFIA program prior to submittal 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 PEA Questionnaire along with the relevant supporting materials.

After the application is submitted, WIFIA applicants may be asked to:

Provide additional materials relevant to the project environmental review, including project description and location, project maps, any reports, assessments, or consultations conducted for the project, NEPA determinations by other federal agencies or State Revolving Fund (SRF) programs, or other relevant documentation to support the environmental review.

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.

Verify accuracy of environmental review documents prepared by the WIFIA program and provided to the applicant at the completion of the environmental review. The signatory of the WIFIA application, or equivalent authority, must sign the Environmental Review Verification Memorandum to confirm the applicant’s concurrence with the environmental documentation.

Environmental monitoring and reporting requirements prior to and during project construction will be outlined in the environmental review documents or the loan agreement. The WIFIA program has the responsibility to conduct checks on the borrower’s environmental requirements during compliance monitoring activities.

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.

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:

• CEQ Regulations for Implementing NEPA (40 CFR part 1500)

• EPA Procedures for Implementing NEPA and Assessing Environmental Effects (40 CFR Part 6)

• PEA for the WIFIA Program

• WIFIA PEA Questionnaires for WIFIA Credit Assistance Projects and SRF Programs https://ceq.doe.gov/laws-regulations/regulations.html https://www.epa.gov/nepa/epa-compliance-national-environmental-policy-act https://www.federalregister.gov/documents/2018/04/27/2018-08865/availability-of-a-programmatic-environmental-assessment-pea-and-finding-of-no-significant-impact https://www.epa.gov/wifia/wifia-programmatic-environmental-assessment-questionnaires

ECONOMIC AND MISCELLANEOUS AUTHORITIES

The following federal requirements fall under the Economic and Miscellaneous Authorities listed in the WIFIA regulations at 40 CFR Part 35 Subpart Q.

DEBARMENT AND SUSPENSION PROHIBITIONS RELATING TO

VIOLATIONS OF CWA AND CAA WITH RESPECT TO FEDERAL CONTRACTS,

GRANTS, OR LOANS

Executive Order 12549 provides for 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 LOI 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 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 LOI.

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 (see Resources below).

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

• Debarment and Suspension (EO 12549)

• Providing for administration of the Clean Air Act and the Federal Water Pollution Control Act with respect to Federal contracts, grants, or loans (EO 11738)

• OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (2 CFR Part 180)

• Non-procurement Debarment and Suspension (2 CFR part 1532)

• System for Award Management (SAM)

• Sample Contract Language in WIFIA Specifications Package

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.

https://www.archives.gov/federal-register/codification/executive-order/12549.html https://www.archives.gov/federal-register/codification/executive-order/11738.html https://www.archives.gov/federal-register/codification/executive-order/11738.html https://www.law.cornell.edu/cfr/text/2/part-180 https://www.law.cornell.edu/cfr/text/2/part-1532 http://www.sam.gov/SAM/

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

Provide completed “Certification Regarding Lobbying” (EPA Form 6600-06) form and if applicable, the “Disclosure of Lobbying Activities” (SF-LLL) form, 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 (see Resources below).

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 will check advertised bids and executed construction contracts, which are a general reporting requirement of the loan, for this type of communication to contractors.

RESOURCES

• Limitation on use of appropriated funds to influence certain Federal contracting and financial transactions (31 U.S.C 1352)

• New Restrictions on Lobbying (40 CFR part 34)

• Certification regarding lobbying (EPA Form 6600-06)

• Disclosure of Lobbying Activities (SF-LLL)

UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION

POLICIES ACT

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. If federal funds are used in any phase of the program or project, this statute applies.

The Uniform Relocation Assistance and Real Property Acquisition Policies Act (URA), 42 U.S.C 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. The URA also requires agencies to reimburse individuals for 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. 49 CFR Part 24 is the government-wide regulation that implements the URA.

https://www.law.cornell.edu/uscode/text/31/1352 https://www.law.cornell.edu/uscode/text/31/1352 https://www.law.cornell.edu/cfr/text/40/part-34 https://www.epa.gov/system/files/documents/2021-08/epa_form_6600_06.pdf https://www.epa.gov/grants/sf-lll-disclosure-lobbying-activities

The WIFIA program has the responsibility 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 LOI 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

• URA implementing regulations for Department of Transportation, incorporated by reference in

EPA regulations (49 CFR Part 24)

• Guidance on Acquisition and Appraisal: Acquiring Real Property for Federal and Federal-Aid

Programs and Projects, Federal Highway Administration Office of Real Estate Services

• Federal-Aid Essentials for Local Public Agencies: Right of Way Requirements, Federal Highway

Administration

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

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.

RESOURCES

• Intergovernmental Review of Federal Programs (Executive Order 12372)

• EPA Financial Assistance Programs Subject to Executive Order 12372 https://www.law.cornell.edu/cfr/text/49/part-24 https://www.fhwa.dot.gov/real_estate/uniform_act/acquisition/real_property.cfm https://www.fhwa.dot.gov/real_estate/uniform_act/acquisition/real_property.cfm https://www.fhwa.dot.gov/federal-aidessentials/catmod.cfm?category=rightofw https://www.archives.gov/federal-register/codification/executive-order/12372.html https://www.epa.gov/grants/epa-financial-assistance-programs-subject-executive-order-12372-and-section-204-demonstration

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 is 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

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.

RESOURCES

• Drug-free workplace programs, Substance Abuse and Mental Health Services Administration

• Governmentwide requirements for Drug-free Workplace (2 CFR Part 182) https://www.samhsa.gov/workplace/legal/federal-laws/contractors-grantees https://www.law.cornell.edu/cfr/text/2/part-182

CIVIL RIGHTS, NON-DISCRIMINATION, AND EQUAL

EMPLOYMENT OPPORTUNITY AUTHORITIES

The following federal requirements fall under the Civil Rights, Nondiscrimination, and Equal Employment Opportunity Authorities listed in the WIFIA regulations at 40 CFR Part 35 Subpart Q.

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, 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, 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.

WHAT TO EXPECT

The WIFIA program has the responsibility 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), which is included in the WIFIA Application, and if requested, additional information on any outstanding civil actions against the applicant.

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. Although no specific contract language is required, sample contract language in the WIFIA specifications package is available for use by the applicant (see Resources below).

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 will 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.

RESOURCES

• Civil Rights Pre-Award Compliance Review Report (EPA Form 4700-4)

• Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal

Financial Assistance (40 CFR Part 5)

• Nondiscrimination in Programs or Activities Receiving Federal Assistance from the Environmental

Protection Agency (40 CFR Part 7)

SECTION 13 OF THE CWA

As codified in 42 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 Age Discrimination Act, Section 504 of the Rehabilitation Act, and Title VI of the Civil Rights Act of 1964 for implementing CWA Section 13.

RESOURCES

• Nondiscrimination in Programs or Activities Receiving Federal Assistance from the Environmental

Protection Agency (40 CFR Part 7)

EQUAL EMPLOYMENT OPPORTUNITY

Through a series of Executive Orders, and a decision by the Equal Employment Opportunity Commission, the federal government established a national policy related to discrimination based on race, color, sex, religion, and national origin to enhance hiring, training, and promotion opportunities for minorities and women in construction programs financed, in part, by federal dollars.

Chief among these directives is Executive Order 11246, which requires all federal contracting agencies to include certain nondiscrimination and "affirmative action" provisions in all contracts and to require the recipients of federal contracts to include these provisions in subcontracts. The provisions apply to WIFIA borrowers, contractors and subcontractors who receive more than $10,000 in federal dollars a year and https://www.epa.gov/sites/default/files/2014-09/documents/epa_form_4700_4.pdf https://www.law.cornell.edu/cfr/text/40/part-5 https://www.law.cornell.edu/cfr/text/40/part-5 https://www.law.cornell.edu/cfr/text/40/part-7 https://www.law.cornell.edu/cfr/text/40/part-7 https://www.law.cornell.edu/cfr/text/40/part-7 https://www.law.cornell.edu/cfr/text/40/part-7 commit these entities to maintaining a policy of non-discrimination in the treatment of employees, to make this policy known to employees, and to recruit, hire, and train employees without regard to race, color, sex, religion, or national origin.

Section 301 of Executive Order 11246 requires that WIFIA borrowers undertake and agree to incorporate into contracts and subcontracts specific language outlining the eight principals and directives found in Section 202 of the Executive Order.

Implementing guidelines can be found in the Department of Labor’s regulations at 41 CFR Part 60.

Compliance with Executive order 11246 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 responsibility 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:

Provide executed construction contracts (active and completed) that include specified EEO language. EEO law require specific language from Section 202 of Executive Order 11246 be included in bid documents and contracts. The specific language is included in the WIFIA specifications package, which is available for use by the borrower (see Resources below).

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.

Prominently post “Equal Opportunity is the Law” posters where it is accessible to all applicants for employment, employees, contractors, and subcontractors.

Notify the Department of Labor’s Office of Federal Contract Compliance Programs within 10 working days of award of a construction contract or subcontract in excess of $10,000.

RESOURCES

• Equal Employment Opportunity posters

• Executive Order 11246 and amendments

• DOL Construction Contract Technical Assistance Guide

• DOL Construction Contract Award Notification https://www.dol.gov/ofccp/regs/compliance/posters/ofccpost.htm https://www.dol.gov/ofccp/regs/compliance/ca_11246.htm https://www.dol.gov/sites/dolgov/files/ofccp/Construction/files/ConstructionTAG.pdf https://www.dol.gov/agencies/ofccp/contract-award-notifications

PARTICIPATION BY DISADVANTAGED BUSINESS ENTERPRISES IN

PROCUREMENT UNDER ENVIRONMENTAL PROTECTION AGENCY (EPA)

FINANCIAL ASSISTANCE AGREEMENTS

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.

WIFIA borrowers are required to seek and encouraged to use small, minority and women-owned businesses for their procurement needs using EPA’s six good faith efforts when contracting. The borrower must also ensure that its prime contractor(s) follow the same rules when subcontracting. The six good faith efforts include:

1. Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities. For Indian Tribal, State, and Local Government recipients, this will include placing DBEs on solicitation lists and soliciting them whenever they are potential sources.

2. Make information on forthcoming opportunities available to DBEs, arrange time frames for contracts, and establish delivery schedules, where the requirements permit, in a way that encourages and facilitates participation by DBEs in the competitive process. This includes, whenever possible, posting solicitations for bids or proposals for a minimum of 30 calendar days before the bid or proposal closing date.

3. Consider in the contracting process whether firms competing for large contracts could subcontract with DBEs. For Indian Tribal, State, and Local Government recipients, this will include dividing total requirements when economically feasible into smaller tasks or quantities to permit maximum participation by DBEs in the competitive process.

4. Encourage contracting with a consortium of DBEs when a contract is too large for one of these firms to handle individually.

5. Use the services and assistance of the SBA and the Minority Business Development Agency of the Department of Commerce.

6. If the prime contractor awards subcontracts, require the prime contractor to take the steps in items 1 through 5.

There are no specific requirements for implementing each of the efforts as long as the effort is shown.

Aside from these efforts, WIFIA borrowers do not have other administrative or reporting requirements of the DBE program under a WIFIA loan.

WHAT TO EXPECT

In implementing EPA’s DBE program, WIFIA borrowers are asked to:

Apply the six good faith efforts when in the process of seeking a prime contractor and ensure that its prime contractors apply the six good faith efforts when in the process of seeking subcontractors.

Maintain proper records demonstrating that the six good faith efforts were applied during contract procurement.

RESOURCES

• DBE Implementing regulations (40 CFR part 33)

• DBE Program resources and fact sheets

• Sample Contract Language in WIFIA Specifications Package https://www.ecfr.gov/cgi-bin/text-idx?node=pt40.1.33&rgn=div5 https://www.epa.gov/grants/disadvantaged-business-enterprise-program-under-epa-assistance-agreements-dbe-program

AMERICAN IRON AND STEEL (AIS) REQUIREMENT

OVERVIEW

This 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. See the Latest Updates on Federal Requirements section of this document for Build America, Buy America requirements that are effective starting May 14, 2022.

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, then borrowers should obtain and keep record of the manufacturer’s certification 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 requirements.

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% 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.

Product availability waiver requests are most common because not all items covered under the AIS requirement may be produced in the U.S. Borrowers should notify the WIFIA program when product availability issues are identified and prior to product procurement and installation to ensure that the project maintains compliance with the AIS requirement. Although not required, identifying products during project design can help the borrower assess market availability and initiate a timely waiver process, where needed. The waiver process involves:

1. Independent product research. Before availability waivers are considered, the WIFIA program will conduct independent market review based on the borrower’s technical specifications of the product.

2. Borrower assessment. The WIFIA program will notify the borrower of the results and confirm unavailability of the products or identify additional domestically available options for the borrower to assess against their project requirements. If there are feasible options, no further steps are taken.

3. Preparation and submission of waiver request package. If there are no feasible options, borrowers will prepare a waiver request package. The WIFIA program reviews the request for adequacy and submits the package for review and approval on the borrower’s behalf.

4. Public comment period. Waiver requests are subject to a 15-day comment period and will be posted on the AIS webpage under Waiver Requests Received by EPA.

5. Approval and notification. Once all comments have been addressed, an approval package will be routed for review and approval through the Office of Water management team. The WIFIA program will post the approved waiver on the AIS webpage under Approved Project Waivers and notify the borrower.

Waivers should only be sought when all avenues of procuring AIS-compliant products have been exhausted. In many cases, a borrower may find that an availability waiver is not needed.

Public interest and cost waivers are less common. Borrowers should initiate further discussions with the WIFIA program if they believe their project could qualify for a public interest or cost waiver. The waiver process is the same for these waivers except product research and assessment (Steps 1 and 2) do not apply.

There are also national waivers that are immediately available for borrower use and do not require additional approval. The National De Minimis Waiver can be used at the borrower’s discretion for incidental and low-cost items; it is ultimately the borrower who decides which items to include under this national waiver. If there is any uncertainty, seek assistance from the WIFIA program.

WIFIA 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 responsibility to check that its borrowers understand the AIS requirements and that those requirements are being properly implemented for the entire project. WIFIA will conduct periodic document reviews and site walk-throughs during project construction to check AIS implementation as part of its compliance monitoring activities.

During application processing, WIFIA applicants may be asked to:

Provide evidence of communication on AIS requirements 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 (see Resources below).

If a project has not yet executed contracts, provide a plan for communication on AIS requirements 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 https://www.epa.gov/cwsrf/american-iron-and-steel-requirement-waiver-requests-received-epa https://www.epa.gov/cwsrf/american-iron-and-steel-requirement-approved-project-waivers a third-party AIS audit.

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

Communicate AIS requirements 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 WIFIA. If communication is not included in the contract documents, provide additional evidence that communication has taken place.

Submit draft or executed prime construction contracts for WIFIA review to ensure that adequate compliance language is included. The WIFIA program does not generally review subcontracts unless there is cause for further review.

Identify products that must comply with AIS requirements 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 review and approval process, as needed.

Maintain up-to-date records or frequently check with prime contractors on AIS certifications 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 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

• AIS Implementation Memoranda (four documents)

• National Waivers, including National De Minimis Waiver. See also AIS Online Webinar on De

Minimis, June 2020

• Project Waiver Request Checklist

• Sample Contract Language in WIFIA Specifications Package

• Sample Certification Letter (available in the AIS Implementation Memorandum, dated March

2014). See also AIS Online Webinar on AIS Certification Letters, July 2020.

https://www.epa.gov/cwsrf/american-iron-and-steel-requirement-guidance-and-questions-and-answers https://www.epa.gov/cwsrf/american-iron-and-steel-requirement-approved-national-waivers-0 https://www.epa.gov/cwsrf/de-minimis-waiver-pursuant-section-436-pl-113-76-consolidated-appropriations-act https://www.epa.gov/cwsrf/state-revolving-fund-american-iron-and-steel-ais-requirement https://www.epa.gov/cwsrf/state-revolving-fund-american-iron-and-steel-ais-requirement https://www.epa.gov/cwsrf/ais-waiver-request-checklist-assistance-recipients https://www.epa.gov/cwsrf/state-revolving-fund-american-iron-and-steel-ais-requirement

LABOR LAWS AND STANDARDS

OVERVIEW

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. Implementation of the federal requirements under these Acts are consistent with guidance provided to Clean Water and Drinking Water State Revolving Loan Programs.

Borrowers must comply with federal prevailing wage laws, commonly referred to as Davis-Bacon. While the Davis-Bacon Act itself only requires compliance for federal contracting, WIFIA falls under “related acts” that are also subject to Davis-Bacon requirements. For all prime 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).

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…