The U.S. Environmental Protection Agency (EPA) has updated the federal requirements for the Water Infrastructure Finance and Innovation Act (WIFIA) Program through more than a dozen changes to the WIFIA Borrower Guide to Federal Requirements (Borrower Guide) and the WIFIA Specification Package and Bid Contract Language (Bid Contract Language). While some changes are minor, others will likely have major impacts on project owners and developers.
Guidance for Collaborative Delivery Projects
The EPA added a new section, "Collaborative Delivery Projects," to the Borrower Guide, which focuses on WIFIA compliance for alternative delivery projects such as design-build, progressive design-build, construction manager at risk, and construction manager/general contractor. The new section makes clear that, for alternative delivery projects, it is the responsibility of the WIFIA borrower, not the project delivery firm, to ensure proper communication regarding compliance with WIFIA Program requirements to the entities developing the project and to define the roles and responsibilities between those entities for compliance documentation and reviews.
Equal Employment Opportunity Requirements
In January of this year, President Trump signed Executive Order 14173 (EO 14173) revoking Executive Order 11246 (EO 11246). However, the language required by EO 11246 has not been eliminated because it is also required by the U.S. Department of Labor's (DOL) regulations in 41 CFR Part 60. The DOL has proposed a rule to remove the EO 11246 implementing regulations, but until the DOL adopts the proposed rule, the requirements of 41 CFR Part 60 will continue to apply. The comment period for the DOL's proposed rule ends on September 2, 2025.
To provide additional guidance for WIFIA borrowers, the EPA included explanatory paragraphs both in the Borrower Guide and in the Bid Contract Language to address the state of the regulations and the required language of 41 CFR Part 60-4. In sum, the DOL regulations still apply, and the equal employment opportunity clauses must be included in contracts as they are now, but any mention of EO 11246 may be removed.
Removal of Disadvantaged Business Enterprise Requirement
The Disadvantaged Business Enterprise (DBE) Program is no longer required under the WIFIA Program. However, the requirement has not been removed from the WIFIA regulations at 40 CFR 35.10025(c)(6). The Borrower Guide states that the DBE Program requirement does not apply to the WIFIA Program because it is a federal loan program and that the EPA will not conduct compliance monitoring activities after loan execution. Currently, it is not clear whether the EPA will enter rulemaking to make this change part of its regulations or continue only with the Borrower Guide clarification.
Davis-Bacon Contract Language Changes
The EPA also added implementation guidance to reflect the updates to the Davis-Bacon regulations from 2023. The updates clarify the use of wage determinations, the applicability to certain entities, coverage of certain activities, as well as revisions to the contract provisions. The EPA also revised the Davis-Bacon Bid Contract Language to reflect current regulations. (For more on the 2023 Davis-Bacon changes, please see our Infra Insight Blog post: Major Changes Coming for the Davis-Bacon Act.)
Guidance for and Listing of Environmental Cross-Cutting Authorities
The EPA also added information about environmental cross-cutting authorities to the Borrower Guide. The "Environmental Cross-Cutting Authorities" section now has information on the National Historic Preservation Act, which generally applies to WIFIA projects and requires consultation with the appropriate State Historic Preservation Office to consider the effects on districts, sites, buildings, structures, and other objects that are or may be eligible for inclusion in the National Register of Historic Places. The section also includes information on the Endangered Species Act, which also generally applies to WIFIA projects and requires evaluation of the "potential impact on endangered, threatened, proposed endangered, or candidate species and critical habitat" for WIFIA projects. Lastly, the new section contains a list of cross-cutting authorities that the WIFIA Program environmental review will evaluate for compliance. It is worth noting, however, that this list is not an exclusive list of all potential cross-cutting environmental laws a project may have to comply with.
Other Changes
Among various other changes to the Borrower Guide and Bid Contract Language, such as reorganization and updates to references, the EPA's new guidance includes information on overlapping federal and state laws and regulations, land acquisition requirements under the Uniform Relocation Assistance and Real Property Acquisitions Policies Act, and instructional content for the Buy America laws.
Although WIFIA itself has not changed significantly, the WIFIA Program, like many other federal government infrastructure programs, is currently undergoing changes, with more likely to come.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
