In the early hours of December 10, after weeks of intense negotiations between House and Senate conferees, the Senate voted to send a final package containing Water Resources Development Act (WRDA) language to the President’s desk for signature. The enacted legislation is a broad water infrastructure package known as the Water Infrastructure Improvements for the Nation Act (WIIN Act (P.L. 114-322) and was signed by President Obama on December 16. The WIIN Act authorizes funding for a wide range of water infrastructure projects and programs, including $170 million in WRDA funds for Flint, Michigan and similarly impacted communities. The final agreement also included a provision requiring the use of specific American iron and steel (AIS) products in all WRDA Drinking Water State Revolving Fund (DWSRF) projects for Fiscal Year (FY) 2017. Federal law already applies the AIS requirement to Clean Water State Revolving Fund (CWSRF) projects on a permanent basis.

The FY 2017 DWSRF AIS language is consistent with prior iterations of this measure and requires that no funding may 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.” “Iron and steel products” are defined as specific “products made primarily of iron and steel,” including lined or unlined pipes or fittings, manhole covers and other municipal castings, hydrants, tanks, flanges, pipe clamps and restraints, valves, structural steel, reinforced pressed concrete, and construction materials.

The WIIN Act allows the U.S. Environmental Protection Agency (EPA) to waive application of the AIS requirement “in any case or category of cases” where use of U.S.-produced iron and steel products would be inconsistent with the public interest; where sufficient quantities of U.S.-produced iron and steel are not reasonably available or are of unsatisfactory quality; or where inclusion of U.S.-produced iron and steel products will increase the cost of the overall project by more than 25 percent. Since its inception in 2014, the EPA has issued certain project-specific and national waivers of the AIS requirement. In addition, the EPA has provided interpretive guidance on a variety of key issues regarding the scope of the AIS provision. The agency’s AIS information page is a critical compliance resource for water infrastructure manufacturers and suppliers.

Although the WIIN Act passed both chambers by wide margins, the bill’s AIS provision emerged as one of the more (if not the most) contentious issues threatening final passage of the legislation. At issue was whether the bill should contain either a permanent or a one-year extension of the DWSRF AIS provision. As noted above, the 2014 water resources authorization legislation (P.L. 113-121) permanently applied the AIS requirement to CWSRF projects. In contrast, the AIS requirement for DWSRF projects has been applied annually through appropriations legislation. Interestingly, the WRDA bill that passed the Senate in September by a vote of 95-3 would have permanently applied the EPA AIS requirement to DWSRF projects. The House-passed bill contained no similar AIS provision, however, and supporters of the Senate language were ultimately unsuccessful in having a permanent extension retained in the final WRDA conference agreement. The issue of the EPA AIS requirement could therefore become a potential source of disagreement between the incoming Trump Administration (which has indicated strong support for U.S. origin government procurement policies) and the Republican-controlled Congress (which has been hesitant to aggressively expand such policies in prior sessions).