DEPARTMENT OF INTERIOR U.S. Bureau of Reclamation Buy

DEPARTMENT OF INTERIOR

U.S. Bureau of Reclamation

Buy America General Applicability Public Interest Waiver

For Rural Water Program Previously Planned Projects

1. Summary

Agency: Department of the Interior, Bureau of Reclamation

Waiver: The Department of Interior (DOI), Bureau of Reclamation (Reclamation/USBR) is

issuing this Public Interest previously planned project waiver for manufactured products

under the Build America, Buy America (BABA) Act requirements, pursuant to Section

70914(b)(1) (public interest waiver) of the Infrastructure and Jobs Act (IIJA, Section 70914)

for Reclamation’s Rural Water Program.

This waiver will apply to awards obligated or incrementally funded on or after the effective

date of the waiver for a period of one year, for the seven (7) “Rural Water Projects,”

identified below in Section 3, that were authorized prior to May 14, 2022, the statutory

effective date of the BABA requirements. This waiver will only permit the use of non-

domestic manufactured products in Reclamation’s Rural Water Projects for contracts entered

into prior to May 14, 2023, that resulted from solicitations published before May 14, 2022.

For awards and amendments that otherwise meet these criteria but were obligated prior to the

effective date of the waiver, the waiver will apply to eligible expenditures incurred on or

after the effective date of the final waiver for the period that the waiver is active. The waiver

will allow these grantees to continue previously planned infrastructure projects in which the

construction was initiated prior to enactment of the BABA, or the designs were completed

prior to the enactment of the BABA requirements as DOI transitions to full implementation

of BABA in a timely manner.

Waiver Level: General Applicability Waiver, Rural Water Projects identified in Section 3.

Waiver Justification Summary: DOI finds it is in the public interest to issue this time-limited,

targeted waiver to ensure that critical long-term water infrastructure projects, directly

impacting rural communities in the western United States, can proceed without significant

delays or cost increases. Based on stakeholder feedback, DOI identified that Reclamation’s

Rural Water Program and subject Projects are in varying stages of completion, and

Reclamation and the rural water recipients had been funding construction and design work

prior to the enactment of the BABA requirements. Imposing BABA manufactured product

requirements to these projects would necessitate design changes, cancelation of solicitations,

and termination of contracts; ultimately driving up the price of the project, as well as the

duration of the project, which would delay critical water delivery to many rural communities

throughout the western United States.

Length of the Waiver: This general applicability waiver will expire in one year from the date

of final approval. Each of the seven (7) Rural Water Projects covered by this waiver have

Approved: May 2, 2024

Expires: May 1, 2025

DOI-USBR

General Applicability Waiver

Rural Water Program

project construction ceilings that were established using designs and estimates that did not

include the domestic purchasing requirements and were incorporated into the authorizing

legislation of the projects prior to the BABA requirement in May 2022. Project completion

dates are dependent upon the availability of funds needed to reach the legislative construction

ceilings. Each of the seven projects have individually established timelines that are

dependent upon the amount of funding available each year and the potential for an indexed

adjustment.

Summary of the Projects Covered by the Waiver: DOI and Reclamation have identified the

following seven (7) Rural Water Projects to be included in this waiver request. Based upon

current funding forecasts, the seven projects’ completion dates are provided in the summary

list below:

1. Garrison Diversion Unit (Garrison Diversion Conservancy District) – CFDA 15.518

Authorizing Legislation: PL 99-294, as amended. Estimated completion date: 2029

2. Lewis & Clark Rural Water System (Lewis and Clark Rural Water System, Inc.) –

CFDA 15.520 Authorizing Legislation: PL106-246. Estimated completion date: 2030

3. Rocky Boy’s/North Central Montana Regional Water System (North Central

Montana Regional Water Authority) – CFDA 15.525 Authorizing Legislation PL

107-331, Title IX, Rocky Boy’s Rural Water System. Estimated completion date:

2030

4. Fort Peck Reservation Rural Water System (Dry Prairie Rural Water System) –

CFDA 15.516 Authorizing Legislation PL 106-382, the Fort Peck Reservation Rural

Water System Act of 2000. Estimated completion date: 2028

5. Musselshell-Judith Rural Water System (Central Montana Regional Water Authority)

– CFDA 15.076 Authorizing Legislation PL 116-220, Division FF-Other Matter, Title

XI Western Water and Indian Affairs, Sec. 1110 Clean Water for Rural Communities.

Estimated completion date: 2030

6. Eastern New Mexico (Eastern New Mexico Water Utility Authority) – CFDA 15.553

Authorizing Legislation PL 111-11 Omnibus Public Land Management Act of 2009,

Title IX, Sec 9103 Eastern New Mexico Rural Water System Project. Estimated

completion date: 2032

7. Jicarilla Apache Water and Sewer Project (Jicarilla Apache Utility Authority) –

CFDA 15.519 Authorizing Legislation PL 107-66 as amended by 107-117. Estimated

completion date: 2030

Summary of Waiver: Reclamation is requesting a waiver to cover non-compliant

manufactured products used in infrastructure projects funded through Reclamation’s Rural

Water program. This public interest previously planned projects waiver applies to certain

contracts within awards as described above. This waiver will help the recipients and

communities of the projects authorized under the Rural Water Program prior to the

enactment of BABA complete construction while avoiding excess costs and schedule delays.

Completion of these projects helps ensure water delivery to the rural western United States.

DOI-USBR

General Applicability Waiver

Rural Water Program

2. Background

In January 2021, President Biden issued Executive Order 14005, titled “Ensuring the Future

is Made in All of America by All of America’s Workers,” launching a whole-of-government

initiative to strengthen Made in America standards. The Executive Order states that the

United States Government “should, consistent with applicable law, use terms and conditions

of Federal financial assistance awards and Federal procurements to maximize the use of

goods, products, and materials produced in, and services offered in, the United States.” DOI

is committed to ensuring strong and effective Buy America implementation consistent with

Executive Order 14005 and has a long track record of successfully applying Made in

America standards to support American workers and businesses through its grant programs

and direct purchases.

On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act

(IIJA or the Bipartisan Infrastructure Law), Pub. L. No. 117-58, which includes the Build

America, Buy America Act (BABA). IIJA div. G §§ 70901-27. The Bipartisan Infrastructure

Law not only makes an historic investment in American infrastructure but also greatly

strengthens Made in America standards. Specifically, BABA expands the coverage and

application of Buy American preferences (used herein to refer to Executive Order (E.O.)

13788, E.O. 13858, and 2 CFR Part 200.322 Domestic preferences for procurement) in

Federal financial assistance programs for infrastructure. BABA requires that no later than

May 14, 2022—180 days after the date of enactment—the head of each covered Federal

agency shall ensure that “none of the funds made available for a Federal financial assistance

program for infrastructure … may be obligated for a project unless all of the iron, steel,

manufactured products, and construction materials used in the project are produced in the

United States.” IIJA § 70914(a).

BABA provides that the preferences under Section 70914 apply only to the extent that a

domestic content procurement preference as described in Section 70914 does not already

apply to iron, steel, manufactured products, and construction materials. IIJA § 70917(a)–(b).

This provision allows Federal agencies to preserve existing Buy America policies and

provisions that meet or exceed the standards required by BABA.

3. Description of Program

Title of the Program: Reclamation Rural Water Program.

Description of the Program: Since 1980, Congress has authorized Reclamation to develop

thirteen (13) municipal and industrial (M&I) water supply projects in rural areas and on

Tribal lands intended to deliver potable water to specific rural communities, primarily

located in North Dakota, South Dakota, Montana, and New Mexico. Of these (13) projects,

six (6) have completed construction. Prior to 2007, implementation of rural water projects

lacked a coordinated approach at Reclamation, leading to issues regarding the cost

effectiveness of options selected to ensure adequate water supply.

DOI-USBR

General Applicability Waiver

Rural Water Program

As noted in 43 CFR Part 404 Reclamations rural water program “addresses domestic,

municipal, and industrial water supply needs in rural areas of the Reclamation States.

Reclamation’s experience, technical expertise, and financial resources assist rural

communities to identify their water supply problems and needs and evaluate options for

addressing those needs. Using a regional or watershed perspective, Reclamation works in

cooperation with non-Federal project sponsors in Reclamation States on a cost-share basis to:

investigate and identify opportunities to ensure safe and adequate rural water supplies for

domestic, municipal, and industrial use in rural areas and small communities, including

Indian tribes; plan the design and construction of rural water supply projects through the

conduct of appraisal investigations and feasibility studies; and oversee, as appropriate, the

construction of rural water supply projects that the Secretary recommends to Congress,

which are subsequently authorized and funded for construction by Congress."

Congress originally authorized these projects, commonly known as rural water supply

projects, for several locations throughout the West. While Reclamation is authorized to

operate in the 17 western states and does not have authority to construct rural water projects

east of the 17 western states, the Lewis & Clark Rural Water System (PL 106-246) has some

features that will deliver water in IA and MN. Many of the beneficiaries of the authorized

rural water projects are disadvantaged, making this program a key focus of Reclamation’s

efforts to advance the Biden-Harris administration’s Justice40 Initiative established in

Executive Order 14008: Tackling the Climate Crisis at Home and Abroad.

As noted by the Congressional Research Service, R46308, “from 1980 through 2009,

Congress authorized Reclamation to undertake the design and construction, and in some

cases the operations and maintenance (O&M), of specific projects intended to deliver potable

water supplies to rural communities in western Reclamation states. These projects were

largely located in North Dakota, South Dakota, Montana, and New Mexico… …Many rural

water projects are large in scope – taking water from one location and moving it long

distances to tie to existing systems. Municipal and industrial (M&I) portions of Reclamation

water supply facilities typically require 100% repayment of construction costs to the federal

treasury with interest… …Congress has funded water supply projects in rural areas for more

than four decades… …These projects have individual authorizations and generally aim to

provide water exclusively for M&I water uses in rural areas.”

Due to the project types, design schedules and current state of each individual project it is not

possible to state what materials are impacted by the addition of the BABA. Each of the

project sponsors now includes BABA requirements in new solicitations.

For each of the projects cited below, the designs began years ago, and the specifications for

equipment and materials necessary to support those designs are specialized to meet the water

quality needs of the disadvantaged communities.

Materials and equipment that are included in the design include but are not limited to: pumps

and pump material, including vertical centrifugal pumps, high service pumps and low-flow

jockey pumps; valves and fittings; flow meters and transmitters; and water treatment

equipment including membranes and filter media. Based on the research performed by the

DOI-USBR

General Applicability Waiver

Rural Water Program

Rural Water recipients some of these materials are produced domestically; however,

additional market research is needed to understand if the domestic items meet the

specifications of the previously completed designs or are they available in sufficient quantity

to meet their demands. Therefore, a limited duration previously planned project waiver for

manufactured products for this limited set of projects is appropriate and necessary to ensure

they are successfully completed in accordance with their authorizing language and

congressionally mandated ceilings.

1. Garrison Diversion Unit (Garrison Diversion Conservancy District)

 Recipient Name and Unique Entity Identifier (UEI): Garrison Diversion Conservancy

District - R36UJE93SGX8, Fort Berthold/Three Affiliated Tribes –

FFWAHTLVF2S7, Spirit Lake Tribe - SZYEAFV7UKK9, Standing Rock Sioux

Tribe – WM1NHUZASLP6

 Federal Financial Assistance Listing: 15.518 Garrison Diversion Unit

 Project Ceiling: $896,633,000

 Infrastructure Project Descriptions and Locations: The projects include Municipal,

Rural, and Industrial (MR&I) water development for the State MR&I and Tribal rural

water system construction. The State MR&I program covers the entire State of North

Dakota, and the Tribal portion includes Standing Rock, Fort Berthold, Spirit Lake,

Turtle Mountain Reservations and Trenton Indian Service Area.

2. Lewis & Clark Regional Water System (Lewis and Clark Rural Water System, Inc.)

 Recipient Name and Unique Entity Identifier (UEI): Lewis and Clark Rural Water

System, Inc. - DQAXCLT7CYL4

 Federal Financial Assistance Listing: 15.520 Lewis and Clark Rural Water System

 Project Ceiling: $451,838,000

 Infrastructure Project Descriptions and Locations: Project will address regional poor

water quality problems, groundwater contamination vulnerability, and inadequate

water supply and will serve more than 300,000 people in 20 communities and rural

water systems in southeast South Dakota, southwest Minnesota, and northwest Iowa.

3. Rocky Boy’s/North Central Montana Regional Water System (North Central Montana

Regional Water Authority)

 Recipient Name and Unique Entity Identifier (UEI): North Central Montana Regional

Water Authority/Rocky Boy’s - K8HGTDMU3HA1, Chippewa Cree Tribe of the

Rocky Boy’s Reservation – UHTLWHKJUAT9

 Federal Financial Assistance Listing: 15.525 Rocky Boy’s/North Central Montana

Regional Water System

 Project Ceiling: $362,803,000

 Infrastructure Project Descriptions and Locations: The project will provide water

from Reclamation’s Tiber Reservoir (Lake Elwell) to the Rocky Boy’s Reservation,

local communities, and rural water districts. As designed, the Project will serve an

estimated population of 43,000 once completed.

DOI-USBR

General Applicability Waiver

Rural Water Program

4. Fort Peck Reservation Rural Water System (Dry Prairie Rural Water System)

 Recipient Name and Unique Entity Identifier (UEI): Dry Prairie Rural Water

Authority - F7QAL4LN58M2, Fort Peck & Assiniboine Sioux Tribes-

UWGWN3HB8Y66

 Federal Financial Assistance Listing: 15.516 Fort Peck Rural Water System

 Project Ceiling: $380,861,000

 Infrastructure Project Descriptions and Locations: The Project provides potable water

from the Missouri River to the Fort Peck Reservation and local communities and rural

customers, serving an estimated population of 27,500 upon completion.

5. Musselshell-Judith Rural Water System (Central Montana Regional Water Authority)

 Recipient Name and Unique Entity Identifier (UEI): Central Montana Regional Water

Authority - HU59MMFLRBG1

 Federal Financial Assistance Listing: 15.076 Musselshell-Judith Rural Water System

 Project Ceiling: $79,413,000

 Infrastructure Project Descriptions and Locations: Upon completion, the Project will

provide potable water from groundwater wells to an estimated population of 8,700

citizens in Judith Basin, Wheatland, Golden Valley, Musselshell, and portions of

Yellowstone and Fergus Counties of Montana.

6. Eastern New Mexico (Eastern New Mexico Water Utility Authority)

 Recipient Name and Unique Entity Identifier (UEI): Eastern New Mexico Water

Utility Authority - JKM8S9ZEA3Z8

 Federal Financial Assistance Listing: 15.553 Eastern New Mexico Rural Water

System

 Project Ceiling: $666,530,000

 Infrastructure Project Descriptions and Locations: this project is designed to deliver

approximately 16,500 acre-feet of water per year from the Ute Reservoir to the cities

of Clovis, Elida, Grady, Melrose, Portales, and Texico and other locations in Curry,

Roosevelt, and Quay Counties in New Mexico.

7. Jicarilla Apache Water and Sewer Project (Jicarilla Apache Utility Authority)

 Recipient Name and Unique Entity Identifier (UEI): Jicarilla Apache Nation -

GXEZDJ1RSLB4

 Federal Financial Assistance Listing: 15.519

 Project Ceiling: $89,276,000

 Infrastructure Project Descriptions and Locations: Replace and construct municipal

water and wastewater system in Dulce, New Mexico in accordance with planning

report entitled “Municipal Water and Wastewater Systems Improvement”.

4. Waiver Justification

Anticipated Impact if no Waiver is Issued: The Rural Water projects, which provide water to

remote areas of the western United States, are large multi-year projects that have been under

construction and planning for the last several decades. The recipients have identified that the

DOI-USBR

General Applicability Waiver

Rural Water Program

BABA manufactured product requirements could have a significant impact on their

schedules, costs, and their ability to complete their project without an appropriate period of

transition.

The enacted project ceilings were based on scopes, designs and costs which did not include

BABA requirements, which were not in effect at the time of Congressional authorization.

The projects’ designs were completed using the laws and regulations prior to implementation

of BABA and include many integrated components and materials that are consistent with the

already completed sections of the projects, and that were designed and specified for use in

the remaining sections of the project. In addition, many of the designs utilize parts and

products that are no longer manufactured in the United States or remain unavailable at this

time in sufficient quantity to keep the project on schedule. Under these circumstances,

application of the BABA manufactured product requirement could compel contract

terminations and cause projects to be put on hold while design changes are made, and new

contracts are issued.

Description of Efforts Made to Avoid the Need for a Waiver: Each recipient and Reclamation

have extensively reviewed the designs, project timelines and availability of domestic parts,

prior to seeking this waiver. However, due to the age of the designs, the complexity of the

systems, and limited availability of materials needed to complete these projects, it is not

possible to apply the full Buy America preference requirements at this time without

significant delay and cost impacts to the Rural Water Program projects. Therefore, DOI is

issuing a public interest waiver that is targeted to manufactured products only and limited in

scope and duration to provide a needed period of transition for recipients.

Expectations for the Agency, Award Recipients, and Industry at the Conclusion of the

Waiver: Reclamation expects to work with the Rural Water Program’s recipients to

implement the BABA manufactured product requirements at the conclusion of the waiver

period. Each recipient will continue to assess their design requirements and the availability of

domestic products with the goal of increasing use of BABA compliant components.

Recipients will be expected to transition to utilizing domestically sourced products moving

forward, while keeping the projects within their legislative ceilings and on schedule to

provide critical water sources to the western United States. Reclamation will maintain close

contact with each of the recipients throughout the course of the projects to re-assess

opportunities to incorporate domestic components and materials consistent with the BABA

requirements.

5. Assessment of Cost Advantage of a Foreign-Sourced Product

Under OMB M-24-02, agencies are expected to assess “whether a significant portion of any

cost advantage of a foreign-sourced product is the result of the use of dumped steel, iron, or

manufactured products or the use of injuriously subsidized steel, iron, or manufactured

products” as appropriate before granting a public interest waiver. DOI’s analysis has

concluded that this assessment is not applicable to this waiver, as these projects were

designed and competed prior to implementation of the BABA requirements and the need is

not based on the costs of foreign-sourced products.

DOI-USBR

General Applicability Waiver

Rural Water Program

6. Solicitation of Comments

Waiver: This notice was posted on February 20, 2024, to satisfy the requirement under

section 70914 of BABA to publish any proposed BABA waiver and provide the public with a

reasonable period of time for notice and comment. The Department of the Interior sought

public and industry comment from all interested parties and received a total of seven (7)

public comments in response to the proposed waiver. This notice closed for comments on

March 5, 2024. All of the public comments received were submitted either by waiver

recipients, or their public entity stakeholders. A summary of the public comments received,

and the Department’s responses are as follows:

- All seven (7) entities expressed support for the waiver and requested DOI extend the

waiver to a greater than one year term. One entity requested a waiver length of five (5)

years, and six (6) entities requested extension “through the completion of the project”.

- Four (4) entities requested the Department of the Interior (DOI) formulate a simpler

waiver process for funding recipient(s); and (1) entity requested clarification in guidance

and documentation issued for BABA Compliance.

- One (1) entity requested DOI expand the waiver’s coverage beyond manufactured

products to include raw materials.

- One (1) entity requested acknowledgement of the unique challenges confronting rural

water projects, and requested issuing a total project waiver, in support of safeguarding the

health, welfare, and economic resilience of these rural areas.

- One (1) entity noted that project(s) have been working toward completion under one set of

rules for decades… (and that) upending construction schedules and timelines to change the

rules in the middle of the game… would be a disservice to taxpayers.

- One (1) entity expressed a final decision on the waiver be made prior to March 14, 2024.

In response the Department noted that the requested "decision” date was not feasible.

- One (1) entity requested the inclusion of specific provisions addressing special

considerations for Tribes and P.L. 93-638 agreements beyond the scope of the "Seven Rural

Water Projects." The same entity requested the waiver be updated to highlight the impact of

material and electrical component shortages, which has significantly contributed to project

delays in recent years (and that) prevalent high overall project costs and overruns (are)

especially pronounced in tribal areas with inherent disadvantages. In response, the

Department noted that all Tribal infrastructure projects funded through federal financial

assistance are currently covered under the DOI’s Tribal Consultation Waiver that is in effect

through September 1, 2024.

- In response to all seven (7) comments, the Department acknowledged the significant pre-

planning required for these projects. However, DOI is unable to expand the waiver beyond

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General Applicability Waiver

Rural Water Program

manufactured products or beyond the projects identified for coverage by this waiver, nor

can we extend the waiver for longer than the one (1) year transition period, to ensure the

waiver is appropriately targeted and time-limited.

- In response to all seven (7) comments, the Department stated that the waiver promotes a

phased implementation of the Buy America preference for seven (7) water infrastructure

projects in communities under the Rural Water Program for one year from the date the

waiver is approved.

- In response to (5) comments regarding the BABA waiver process and timelines, the

Department stated we must adhere to the legal framework that governs and guides the use

of its permissive authority to waive the requirements of the Buy America preference when it

finds that certain circumstances are present, including the procedures promulgated in 2 CFR

Part 184.

- In response to one (1) comment, the Department acknowledged the unique challenges

confronting the USBR rural water projects aimed at helping disadvantaged Justice 40

communities noting that DOI is committed to improving the delivery of federal financial

assistance serving disadvantaged communities.

After reviewing and responding to these comments, DOI determines the waiver remains in the

public interest, and is issuing the waiver without substantive changes from the version that was

proposed, to ensure the waiver is appropriately targeted and conditional. DOI will review the

waiver as often as necessary to evaluate its continued need.

For more information on the Buy America preference, please reference