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Build America, Buy America

One of the key priorities of the Bipartisan Infrastructure Law (BIL) is to create long-term opportunities for domestic manufacturers and manufacturing jobs and build resilient domestic supply chains for a wide range of products. Congress passed the Build America, Buy America (BABA) Act concurrently with BIL in November 2021, which makes sourcing a wide range of domestically manufactured products a permanent requirement across all Federal financial assistance programs for infrastructure, including the U.S. Environmental Protection Agency's Clean Water and Drinking Water State Revolving Fund (SRF) Programs. Visit EPA's BABA Act Overview website.

What is BABA?

The BABA Act expands the existing American Iron and Steel (AIS) domestic preference requirements of the CWSRF and DWSRF Programs. For typical Clean Water Fund Program (CWFP) and Safe Drinking Water Loan Program (SDWLP) projects designated as federal equivalency, the vast majority of purchased items will now be covered, including many products that have not been in the past; so almost everything but cement, concrete, stone, sand, gravel, and dirt.

The BABA Act requires recipients of federal infrastructure funding to use iron, steel, manufactured products, and construction materials that are produced in the United States. Compliance with AIS requirements will satisfy the BABA iron and steel requirements. The BABA requirements apply to any activity related to the construction, alteration, maintenance, or repair of infrastructure in the U.S., including projects for public drinking water and wastewater systems.

Covered items and products

For information about what items BABA applies to, see EPA's resources:

Projects affected by the BABA requirement

The BABA requirement applies to CWFP and SDWLP projects designated as federal equivalency. Emerging contaminants (i.e., PFAS) and lead service line projects that receive BIL funding must comply with federal equivalency requirements, including BABA.

Waivers

The BABA Act went into effect on May 14, 2022; however, there are exceptions and waivers either in place or being considered. View EPA's Build America, Buy America approved waivers and waivers open for public comment.

Adjustment Period Waiver

On November 13, 2023, EPA released their Amended Public Interest Waiver of Section 70914(q) of P.L. 117-58, BABA Act, 2021 for SRF and Water Infrastructure Projects that Initiated Design Planning prior to May 14, 2022 which amends and sunsets the original Adjustment Period Waiver of Section 70914(a) of P.L. 117-58, BABA Act, 2021 for SRF Projects that have Initiated Design Planning. The original waiver was released by the EPA on September 2, 2022.

As a result of the amendment:

  • Only State Fiscal Year (SFY) 2023 and 2024 projects that have initiated project design planning prior to May 14, 2022, can be exempted from BABA requirements. "Initiated project design planning" is defined in the waiver.
  • Effective with SFY 2025 financing, projects must comply with BABA requirements regardless of when design planning for the project was initiated, unless the project is exempted under a different waiver.

If you believe that your project meets the conditions of both the original Adjustment Period Waiver and the amended Adjustment Period Waiver, email the appropriate Program Coordinator and attach a memo indicating the reasons why you feel that your project meets the waiver requirements, along with any relevant supporting documentation. If the coordinator agrees that the conditions are met, they will concur via email.

Note: If a wastewater project that is funded in SFY 2023 or 2024 can provide evidence that a facilities plan was submitted prior to May 14, 2022, the project would qualify under the first condition of the original Adjustment Period Waiver regarding preliminary engineering report submittals. If the facilities plan was amended after May 14, 2022, it will be reviewed on a case-by-case basis by the CWFP Program Coordinator to determine if the condition of the waiver is still met.

Small Project Waiver

Small, federally funded infrastructure projects, where assistance agreements are less than $250,000, are exempted from BABA requirements. On September 26, 2022, EPA released their final Public Interest: Small Project General Applicability Waiver of Section 70914(a) of P.L. 117-58, BABA Act, 2021 for EPA Financial Assistance Awards.

De Minimis Waiver

A small value (5% or less) of products relative to the total project cost (not material cost) can be exempted from BABA requirements. The five percent threshold can be used for any products, independent of the purpose of the project. Products that qualify for a de minimis waiver cumulatively may comprise no more than a total of five percent of the total project cost. The BABA de minimis waiver is not additive with the existing AIS de minimis waiver. On October 21, 2022, EPA released their final Public Interest: De Minimis General Applicability Waiver of Section 70914 of P.L. 117-58, BABA Act, 2021 for EPA Financial Assistance Awards.

American Iron and Steel requirement

Note that the AIS requirements in the Safe Drinking Water and Clean Water Acts continue to apply to all SDWLP and CWFP projects, including non-equivalency projects and projects covered by a BABA waiver.

Complying with BABA

On November 3, 2022, EPA released the BABA Act Implementation Procedures for EPA Office of Water Federal Financial Assistance Programs memorandum that provides important information to support EPA's grantees, contractors, and manufacturers in complying with BABA. This Implementation Procedures document is organized to provide responses to questions in the following topic areas:

  • Section 1: General
  • Section 2: Product Coverage
  • Section 3: Co-funding
  • Section 4: Waivers
  • Section 5: Documenting Compliance
  • Section 6: Programs with American Iron and Steel Requirements
  • Section 7: Program-Specific Issues
  • Appendix 1: Example BABA Act Construction Contract Language
  • Appendix 2: Example BABA Act Assistance Agreement Language

In May 2023, the EPA provided these Supplemental Questions and Answers for BABA Implementation Procedures for Office of Water Federal Financial Assistance Programs to respond to new topics brought to the agency’s attention through its outreach. Because the Implementation Procedures document ended with Section 7, the supplemental questions and answers begin with Section 8.

Co-funded projects

The Wisconsin DNR Environmental Loans Section often partners with other funding agencies to ensure that municipalities get the best funding package to meet their needs. If your project is receiving other federal funding, check with that program to confirm whether or not BABA applies.

Certification form

Projects financed in part or whole by the CWFP/SDWLP are required to follow the American Iron and Steel (AIS) or BABA requirements. If you are unsure which applies, contact the DNR to confirm. The certification form for AIS and BABA requirements is a mandatory form for all projects and should be completed after a project has been bid. The form must be completed even if it is determined that your project is exempt from the AIS or BABA requirements.

If you have trouble opening the form, read the DNR Site Requirements and PDF Help for assistance.

Stay informed

Sign up for Environmental Loans E-Bulletins to get updates about BABA requirements, federal equivalency projects, BIL SRF Funding, funding opportunities for emerging contaminants (EC) and lead service line (LSL) replacements, etc.

Contact information
For information on BABA requirements, contact your regional DNR Construction Management Engineer (CME).
For information on the funding programs, contact the appropriate Program Coordinator:
Lisa Bushby, Clean Water Fund Program Coordinator
Noah Balgooyen, Safe Drinking Water Loan Program Coordinator