August 10, 2021

Infrastructure Investment and Jobs Act: Summary of Bipartisan Infrastructure Legislation

Holland & Knight Alert
Christopher J. Armstrong | Lauri A. Hettinger | Hannah M. Coulter | Nicole M. Elliott | Jenny Busby | Reese Goldsmith | Devin Barrett | Lisa Ann Barkovic | Leslie I. Pollner | Kathleen Nicholas | Jodi A. Richardson | Meaghan A. Colligan

On August 10, 2021, the U.S. Senate voted 69-301 to pass the Infrastructure Investment and Jobs Act (H.R. 3684), bipartisan legislation to invest in the nation's infrastructure, including funding for roads and bridges, rail, transit, ports, airports, electric grid, water systems, broadband, among other priorities. The legislation provides $944 billion in total spending over five years, totaling $550 billion in new spending. It represents a significant infusion of federal funding for U.S. public works across various industries.

Senate passage of the bipartisan infrastructure package follows months of negotiations between the White House and a bipartisan cohort of senators on the infrastructure component of President Joe Biden's original American Jobs Plan.

The legislation includes several authorizing bills, including the Surface Transportation Reauthorization Act of 2021 (S. 1931), Surface Transportation Investment Act (S. 2016), Drinking Water and Wastewater Infrastructure Act (S. 914) and the Energy Infrastructure Act (S. 2377), among others. In addition, the bill provides supplemental appropriations for many of these authorized programs, both existing and new.

The bill now moves for consideration in the U.S. House of Representatives.

The following Holland & Knight alert provides a summary of key provisions in the Infrastructure Investment and Jobs Act, including:

Transportation Infrastructure

Highways

The legislation includes the Surface Transportation Reauthorization Act of 2021 (S. 1931) that the Senate Committee on Environment and Public Works voted unanimously to approve on May 26, 2021. This legislation authorizes the Federal-Aid Highway Program for five years (FY 2022-2026). Below summarizes changes to existing Federal Highway Administration (FHWA) programs and the new programs created.

Surface Transportation Block Grant Program: $72 billion

  • Adds new eligibilities to the Surface Transportation Block Grant (STBG) Program, including electric vehicle charging infrastructure and vehicle-to-grid infrastructure, installation and deployment of intelligent transportation technologies, projects that facilitate intermodal connections between emerging transportation technologies, resilience features, cybersecurity protections, waterfront infrastructure projects and projects to enhance travel and tourism.

Transportation Alternatives Program: $7.2 billion

  • Increases the amount of funding set aside within the STBG Program for the Transportation Alternatives Program (TAP); increases the minimum percentage of TAP funding that is sub-allocated on the basis of population from current 50 percent to 59 percent.

Congestion Mitigation and Air Quality Improvement Program: $13.2 billion

  • Adds eligibility for Congestion Mitigation and Air Quality Improvement Program (CMAQ) funds to be used on shared micromobility, including bike share and shared scooter systems, as well as for the purchase of medium- or heavy-duty zero emission vehicles and related charging equipment.

Railway-Highway Grade Crossings: $1.225 billion

  • Continues to set aside $245 million of the Highway Safety Improvement Program (HSIP) funding for the Railway-Highway Crossings (Section 130) Program each year. Increases the federal share for projects funded under the Section 130 program from 90 percent to 100 percent, as well as clarifies that the replacement of functionally obsolete warning devices is an eligible expense.

National Highway Freight Program: $7.15 billion

  • Increases the maximum number of highway miles a state may designate as critical rural freight corridors from 150 to 300 miles, and critical urban freight corridors from 75 to 150 miles.

Formula Carbon Reduction Program: $6.42 billion

  • Establishes a new carbon reduction program to reduce transportation emissions.
  • 65 percent of funding under this program would be sub-allocated by population.
  • Eligible projects include:
    • traffic monitoring, management and control facility or program
    • public transportation
    • on-road and off-road trail facilities for pedestrians and bicyclists
    • advanced transportation and congestion management technologies
    • deployment of infrastructure-based intelligent transportation systems (ITS) capital improvements and the installation of vehicle to infrastructure communications equipment
    • replacing street lighting and traffic control devices with energy-efficient alternatives
    • development of a carbon reduction strategy

Promoting Resilient Operations for Transformative, Efficient and Cost-saving Transportation (PROTECT) Grant Program: $7.3 billion in formula and $1.4 billion in competitive grants

  • Establishes the PROTECT Grant Program, which would provide $7.3 billion in formula funding and $1.4 billion in competitive set-aside grants (over five years) for resilience improvements at the state and municipal levels.
  • The PROTECT grants are intended to incentivize state and local communities as they seek to improve the resiliency of natural infrastructure such as wetlands, floodplains and aquatic ecosystems. Specifically, the grants would provide planning and resilience improvement funding to communities to help to assess vulnerabilities to current and future weather events or other natural disasters, and to enhance transportation assets such as ports and port infrastructure. In addition to evaluating vulnerabilities, resilience improvement grants can be utilized to relocate infrastructure out of the floodplain and restore aquatic ecosystems connected to a transportation improvement.

Transportation Infrastructure Finance and Innovation Act of 1998: $1.25 billion

  • Adds eligibility for public infrastructure located near transportation facilities to promote transit-oriented development (TOD).
  • Adds eligibility for airport-related projects.
  • Adds new criteria to the streamlined application process for public agency borrowers to increase the likelihood that the U.S. Department of Transportation (DOT) Secretary will be able to move more projects through the process expeditiously.

Nationally Significant Freight and Highway Projects (INFRA): $8 billion

  • Renames the Nationally Significant Freight and Highway Projects program (also known as the Infrastructure for Rebuilding America or INFRA grant program) to be the Nationally Significant Multimodal Freight and Highway Program.
  • Raises the cap on multimodal (rail/port) projects from 10 percent to 30 percent of the grants for each year.

Congestion Relief Program: $250 million

  • Establishes a congestion relief program to provide competitive grants to states, local governments and metropolitan planning organizations (MPO) for projects in large urbanized areas (more than 1 million people) to advance innovative, integrated and multimodal solutions to congestion relief in the most congested metropolitan areas of the United States.
  • Grant awards shall be not less than $10 million. When selecting grants, the DOT Secretary shall give priority to eligible projects located in urbanized areas that are experiencing high degrees of recurrent congestion.
  • The federal cost-share shall not exceed 80 percent of the total cost of a

Reducing Truck Emissions at Ports: $250 million

  • Establishes a program to reduce idling and emissions at port facilities.
  • Requires the DOT Secretary to:
    • Study how ports would benefit from electrification and to study emerging technologies that reduce emissions from idling trucks.
    • Coordinate and fund projects through competitive grants that reduce port-related emissions from idling trucks.
    • Submit a report to Congress detailing the status and effectiveness of the program.

Healthy Streets Program: $500 million

  • Establishes the Healthy Streets program to provide grants to eligible entities to deploy cool pavements and porous pavements and to expand tree cover.
  • The goals of the program are to mitigate urban heat islands, improve air quality and reduce the extent of impervious surfaces, storm water runoff and flood risks and heat impacts to infrastructure and road users.

Reconnecting Communities Pilot Program: $500 million

  • Establishes the Community Connectivity Pilot program through which eligible entities may apply for: 1) planning funds to study the feasibility and impacts of removing, retrofitting or mitigating existing transportation facilities that create barriers to mobility, access or economic development and 2) construction funds to carry out a project to remove, retrofit or mitigate an eligible facility and, if appropriate, to replace it with a new
  • An eligible facility includes a limited access highway, viaduct or any other principal arterial facility that creates a barrier to community connectivity, including barriers to mobility, access or economic development, due to high speeds, grade separations or other design factors.
  • Planning grant awards may not exceed $2 million, and the federal cost share for a project may not exceed 80 percent. Capital construction grants must be at least $5 million, and the federal cost share for a project may not exceed 50 percent.

Highway Safety Improvement Program: $15.575 billion

  • Allows flexibility for Highway Safety Improvement Program (HSIP) to be used for non-infrastructure activities and behavioral safety projects, such as educational campaigns about traffic safety and enforcement activities; and allows a state to spend up to 10 percent of its HSIP funding on such projects and Safe Routes to School non-infrastructure-related activities.
  • Adds projects eligible for HSIP funding:
    • Grade separation projects.
    • Construction or installation of features, measures and road designs to calm traffic and reduce vehicle speeds.
    • Installation or upgrades of traffic control devices for pedestrians and bicyclists, including pedestrian hybrid beacons and the addition of bicycle movement phases to traffic signals.
    • Roadway improvements that provide separation between pedestrians and motor vehicles or between bicyclists and motor vehicles, including medians, pedestrian crossing islands, protected bike lanes and protected intersection features.

Transportation Access Pilot Program

  • Establishes a Transportation Access Pilot program to develop or procure accessibility data and make it available to each eligible entity selected to participate in the pilot program to improve transportation planning.
  • The pilot will measure the level of access by surface transportation mode to important destinations, which may include jobs, healthcare facilities, child care facilities, educational and workforce training facilities, housing, food sources, points within the supply chain for freight commodities, domestic and international markets and connections between surface transportation modes.
  • The pilot will also assess the change in accessibility that would result from new transportation investments.

Stopping Threats on Pedestrians: $25 million

  • Establishes a grant program to provide assistance to state departments of transportation and local government entities for bollard installation projects designed to prevent pedestrian injuries and acts of terrorism in areas used by large numbers of pedestrians.

Study of Impacts on Roads from Self-Driving Vehicles

  • Directs the Transportation Secretary to initiate a study on the existing and future impacts of self-driving vehicles to transportation infrastructure, mobility, the environment and safety, including impacts on the Interstate System, urban roads, rural roads, corridors with heavy traffic congestion and transportation systems optimization.
  • The study shall include specific recommendations for both rural and urban communities regarding the impacts of self-driving vehicles on existing transportation system capacity.

Update to Manual on Uniform Traffic Control Devices

  • Directs the DOT to update the Manual on Uniform Traffic Control Devices and to continue to update the manual no less than every four years thereafter. The initial update shall include protection of vulnerable road users, the safe testing of automated vehicle technology and minimum retroreflectivity of traffic control devices and pavement markings. This section also adds electric vehicle charging stations to the section.

Bridge Grant Program: $3.265 billion

  • Establishes a new competitive grant program to assist state, local, federal and tribal entities in rehabilitating or replacing bridges, including culverts.
  • The minimum grant amount for a large project is not less than $50 million; the minimum grant amount for any other eligible project is $2.5 million.
  • Grant amounts, in combination with other anticipated funds, should be of a size sufficient to enable the project to proceed through completion.
  • The bridge program would include an application and evaluation process for large projects, after which the Transportation Secretary would submit an annual report to Congress on funding recommendations, based on project evaluations. Large projects will be funded with multi-year funding agreements similar to the Federal Transit Administration (FTA) Full Funding Grant Agreement (FFGA) program. At least 50 percent of program funds over five years must be used for large projects.

Rail/Safety/Freight

The bill includes the Surface Transportation Investment Act (S. 2016) that the Senate Committee on Commerce, Science, and Transportation passed on June 16, 2021. S. 2016 authorizes $78 billion over five years for rail, freight and safety programs.

Emerging Technology Research Pilot Program: $25 million

  • Establishes a pilot program to conduct emerging technology research, specifically including advanced and additive manufacturing (3-D printing) technologies; and research into activities to reduce the impact of automated driving systems and advanced driver automation systems technologies on pavement and infrastructure performance and to improve transportation infrastructure design.

Research and Technology Development and Deployment

  • Expands the objectives of the DOT Turner Fairbank Highway Research Center to support research on nonmarket ready technologies in consultation with public and private entities.
  • Establishes an open challenge and research proposal pilot program that provides grants for proposals to research needs or challenges identified or determined to be important by the Transportation Secretary.
  • Expands the Technology and Innovation Deployment Program by adding a focus on accelerated market readiness efforts, and increases funding for the program, including $100 million in new and innovative construction technologies for smarter, accelerated project delivery.
  • Reauthorizes the Accelerated Implementation and Deployment of Pavement Technologies program.
  • Modifies the Advanced Transportation Technologies and Innovative Mobility Deployment program to include intermodal connectivity and a rural set-aside of not less than 20 percent; and expands the eligibility under this program to include retrofitting dedicated short-range communications (DSRC) technology deployed as part of an existing pilot program to cellular vehicle-to-everything technology, as well as advanced transportation technologies.
  • Authorizes a new Center of Excellence on New Mobility and Automated Vehicles to research the impact of highly automated vehicles and new mobility, such as docked and dockless bicycles and electric scooters.

Workforce Development, Training and Education

  • Allows states greater flexibility to address surface transportation workforce development, training and education needs, including activities that address current workforce gaps, such as work on construction projects.
  • Permits states to obligate funds for pre-apprenticeships, apprenticeships and career opportunities for on-the-job training and vocational school support.

National Motor Vehicle Per-Mile User Fee Pilot

  • Directs the Transportation Secretary to establish a pilot program to demonstrate a national motor vehicle per-mile user fee. In carrying out the pilot program, the Secretary shall provide different methods that volunteer participants can choose from to track motor vehicle miles traveled and solicit volunteer participants from all 50 states, the District of Columbia and the Commonwealth of Puerto Rico.

Strategic Innovation for Revenue Collection

  • Reauthorizes and renames the Surface Transportation System Funding Alternatives Program, to continue to test the feasibility of a road usage fee and other user-based alternative revenue mechanisms to help maintain the long-term solvency of the Highway Trust Fund, through pilot projects at the state, local and regional level. Expands eligible applicants from state DOTs, to include local governments and MPOs.

Advanced Research Projects Agency-Infrastructure

  • Establishes the Advanced Research Projects Agency-Infrastructure (ARPA-I) to fund research and development on advanced transportation infrastructure technologies. ARPA-I would support novel, early stage research as well as advance conceptual research into testing and development.

National Infrastructure Project Assistance: $10 billion

  • Establishes the National Infrastructure Project Assistance Program to provide single- or multiyear grants to projects generating national or regional economic, mobility or safety.
  • Eligible projects include highway or bridge projects, freight intermodal or freight rail projects, railway-highway grade separation or elimination projects, intercity passenger rail projects and certain public transportation projects.

Local and Regional Project Assistance: $7.5 billion

  • Authorizes and renames the RAISE/BUILD program.
  • Limits the size of each grant to $25 million and provides an equal split between rural and urban areas.

National Culvert Removal, Replacement and Restoration Grant Program: $4 billion

  • Creates a National Culvert Removal, Replacement and Restoration Program to provide grants to states, local governments and tribes to address anadromous fish passage as well as provide funding for certain freshwater impacts to marine fish and shellfish species.

Amtrak National Network: $12.65 billion

Amtrak Northeast Corridor Grants: $6.57 billion

Federal-State Partnership Intercity Passenger Rail: $7.5 billion

Federal Railroad Administration (FRA) Consolidated Rail Infrastructure and Safety Improvement (CRISI): $5 billion

FRA Railroad Crossing Elimination Program: $3 billion

  • Authorizes a new competitive grant program for the elimination of hazards at railway-highway crossings.

FRA Restoration and Enhancement Grants: $250 million

Safe Streets and Roads for All Grant Program: $1 billion

  • Establishes a grant program for MPOs, local governments and tribal governments to develop and carry out comprehensive safety plans to prevent death and injury on roads and streets, commonly known as "Vision Zero" or "Toward Zero Deaths" initiatives.

Public Transit

The Senate Committee on Banking, Housing, and Urban Affairs, that oversees the Federal Transit Administration (FTA), was the only transportation authorization committee in the Senate that had not drafted its portion of the surface transportation authorization bill. The transit section was drafted during the bipartisan infrastructure negotiations; and therefore, there are not many policy changes for transit versus previous transportation authorization bills.

  • Capital Investment Grants: $15 billion
    • Increases the threshold for capital costs from $300 million to $400 million, and federal share from $100 million to $150 million for Small Starts.
    • Amends Core Capacity eligibility to use a 10- year timeframe versus 5 years to demonstrate capacity needs.
    • Establishes a process to allow multiple projects in a community to move forward simultaneously for immediate and future bundling of projects allowing sponsors to seek savings during the contracting process. This replaces the "Program of Interrelated Projects" eligibility.
  • State of Good Repair Formula Grants: $18.39 billion
  • Bus Formula Grants: $3.161 billion
  • Bus Competitive: $2.34 billion
    • Low-No Buses: $374.6 million
  • Urbanized Area Formula Grants: $33.54 billion

DOT Supplemental Appropriations for FY 2022-2026

Division J, Title VIII — Transportation, Housing and Urban Development, and Related Agencies (THUD) provides additional appropriated money from the Treasury for FY 2022-FY 2026.

  • National Infrastructure Project Assistance (created in S. 2016): $5 billion
    • This newly created program supports multimodal, multijurisdictional projects of national or regional significance.
  • Local and Regional Project Assistance (RAISE Grants): $7.5 billion
    • This funding boosts funding for the RAISE (formerly BUILD grant program).
  • Strengthening Mobility and Revolutionizing Transportation Grant Program (created in S. 2016): $500 million
  • Safe Streets for All (created in S. 2016): $5 billion
    • The Safe Streets for All program was created by President Joe Biden to fund state and local "Vision Zero" plans to reduce crashes and fatalities, especially for cyclists and pedestrians.
  • National Culvert Removal, Replacement and Restoration Grant Program (created in S. 2016): $1 billion
  • Bridge Replacement, Rehabilitation, Preservation, Protection and Construction Formula Program: $27.5 billion
    • Federal share is 100 percent
    • 75 percent distributed "by the proportion that the total cost of replacing all bridges classified in poor condition in such State bears to the sum of the total cost to replace all bridges classified in poor condition in all States; and
    • 25 percent distributed by the proportion that the total cost of rehabilitating all bridges classified in fair condition in such State bears to the sum of the total cost to rehabilitate all bridges classified in fair condition in all States."
  • Reconnecting Communities Program (created in S. 1931): $500 million
    • $100 million for planning grants
    • $400 million for capital construction grants
  • Construction of Ferry Boats and Ferry Terminal Facilities Program (existing): $342 million
  • FRA CRISI: $5 billion
  • FTA Capital Investment Grant Program: $8 billion
    • 55 percent for New Starts
    • 20 percent for Core Capacity projects
    • 15 percent for Small Starts
    • 10 percent for Expedited Project Delivery projects
  • All Stations Accessibility Program: $1.75 billion
    • Competitive grants to assist states and local governments in financing capital projects to upgrade the accessibility of legacy rail fixed guideway public transportation systems for persons with disabilities, including those who use wheelchairs.
  • FTA Transit Infrastructure Grants: $10.25 billion
    • State of Good Repair: $4.75 billion
    • Low or No Emission: $5.25 billion
    • Formula grants for the enhanced mobility of seniors and individuals with disabilities: $250 million
  • FRA Federal-State Partnership Intercity Passenger Rail: $36 billion
    • Not more than $24 billion for Northeast Corridor
  • Bridge Grant Program (created in S. 1931): $9.235 billion
    • This new program provides competitive grants for bridges.
    • Federal share is 100 percent.
  • Railroad Crossing Elimination Competitive Grant Program (created in S. 2016): $3 billion
  • Port Infrastructure Development Program: $2.25 billion
  • Infrastructure for Rebuilding America (INFRA) Grant Program: $3.2 billion
    • This funding supports an increase over baseline funding to the INFRA grant program, which supports highway and rail projects of regional and national economic significance.
  • Reduction of Truck Emissions at Port Facilities Program: $150 million
  • Surface Transportation Private Activity Bonds: $500 million
    • Increases the current cap on these bonds from $15 billion to $30 billion.

Airports

This legislation appropriates $25 billion over five years for airports.

  • Airport Infrastructure Grants: $15 billion over five years/$3 billion annually
    • Funding can be used for any Passenger Facility Charge (PFC) eligible projects except debt service payments.
    • Local match mirrors Airport Improvement Program (AIP).
    • $2.48 billion annually for primary airports.
    • $500 million annual for general aviation and non-primary airports.
    • $20 million annually for competitive grants to construct, rehabilitate or relocate airport-owned contract towers. No local match. Federal Aviation Administration (FAA) will prioritize projects that enhance aviation safety and improve air traffic efficiency.
  • New Airport Terminal Competitive Grant Program: $5 billion over five years/$1 billion annually
    • 55 percent of the grants are required to be distributed to large hub airports, 20 percent for small hubs, 15 percent for medium hubs and 10 percent for non-primary airports.
    • Eligible projects include terminal development projects and projects for relocating, reconstructing, repairing or improving air traffic control towers and on-airport rail projects.
    • 80 percent federal share for medium and large hubs and a 95 percent federal share for small airports.
  • FAA Facilities and Equipment: $5 billion over five years/$1 billion annually
    • Eligible uses for these funds include replacing terminal and Air Traffic Control (ATC) facilities, fuel storage tank replacement, electrical power system support, and hazardous materials management and environmental cleanup.
    • $200 million reserved for airports that participate in the FAA Contract Tower Program to upgrade aging FAA-owned ATC facilities.
  • TIFIA
    • Allows airports to access low-interest loans and loan guarantees under the TIFIA program for PFC-eligible projects.

Electric Vehicles (EVs)

President Joe Biden has committed to deploying a national network of 500,000 charging stations, in support of his broader commitment to reduce economy-wide emissions by 50 percent by 2030. The legislation invests $7.5 billion to initiate the build out of this network of chargers. The bill provides funding for deployment of EV chargers along highway corridors to facilitate long-distance travel and within communities.

Charging and Refueling Grant Program ($2.5 billion): Authorizes $2.5 billion over five years to establish a grant program at DOT for Alternative Fuel Corridors as proposed in the Senate Committee on Environment and Public Works surface transportation reauthorization bill (S. 1931). The grant program would include a set-aside for Community Grants, under the surface transportation reauthorization. The program is designed to strategically deploy publicly accessible alternative fuel vehicle charging infrastructure along designated alternative fuel corridors or in certain other locations that will be accessible to all drivers of alternative fuel vehicles.

  • Eligibility: Eligible entities are state and local governments, MPOs and other public-sector entities.
  • Use of Funds: Grants are to be used to contract with a private entity for acquisition and installation of publicly accessible alternative fuel vehicle charging and fueling infrastructure that is directly related to the charging or fueling of a vehicle. Eligible entities may use a portion of grant funds to provide a private entity operating assistance for the first five years of operations after infrastructure installation.
  • Community Grant Set-Aside: 50 percent of the total program funds will be made available each fiscal year for Community Grants, to install charging infrastructure in locations on public roads, schools, parks, and in publicly accessible parking facilities. These grants will be prioritized for rural areas, low- and moderate income neighborhoods and communities with low ratios of private parking or high ratios of multiunit dwellings.
  • Cost-Share: The federal cost share for a project may not exceed 80 percent. Further, as a condition of contracting with an eligible entity, a private entity must agree to pay the non-federal share of project costs.

EV Charging Formula Program ($5 billion): To complement the $2.5 billion for the Charging and Refueling Grant program at DOT, the legislation appropriates $1 billion per year for five years ($5 billion total) to establish a National Electric Vehicle Formula Program at DOT to provide additional funding to states to deploy EV charging infrastructure.

  • Eligible Use of Funds: 1) Acquisition and installation of EV infrastructure to serve as a catalyst for the deployment of such infrastructure and to connect it to a network to facilitate data collection, access and reliability; 2) operation and maintenance; and 3) data sharing about EV infrastructure.
    • Charging stations must be located along a designated Alternative Fuel Corridor.
  • Cost Share: The federal cost-share for a project may not exceed 80 percent. Private entity may pay the non-federal share of the cost of the project.
  • State Proposals: Directs DOT to establish a deadline for states to provide a plan describing how the state plans to use the funding. Requires DOT and the U.S. Department of Energy (DOE) to develop, in concert, guidance for states and localities to strategically deploy EV charging infrastructure.
  • Contract with Private Entity: Grants may be used to contract with a private entity for acquisition and installation of publicly accessible alternative fuel vehicle charging and fueling infrastructure that is directly related to the charging or fueling of a vehicle.
  • Establishes Joint Office of Energy and Transportation: Establishes a Joint Office of Energy and Transportation at DOT and DOE to coordinate work on EV infrastructure, which would include new installation and interoperability standards.

Clean School Bus Program ($5 billion): Appropriates $1 billion per year for five years ($5 billion total) to implement a school bus change out program at the EPA to reduce greenhouse gas (GHG) emissions and improve air quality.

  • Eligibility: State and local governments, eligible contractors and nonprofit school transportation associations.
  • Funding breakdown: 50 percent of the funds are for zero-emission and low-emission alternative fuels buses.
  • Funding prioritization: Funds may be prioritized for rural or low-income communities and entities that have matching funds available. The U.S. Environmental Protection Agency Administrator is authorized to provide funds to cover up to 100 percent of the costs for the replacement of the buses

Electric or Low-Emitting Ferry Pilot Program: Appropriates $250 million over five years ($50 million per year) for a new DOT low-emission ferries and rural ferry systems grant program.

Water Infrastructure

The legislation includes the Senate Drinking Water and Wastewater Infrastructure Act (S. 914) passed by the Senate in April 29, 2021. The bill reauthorizes $35 billion in existing programs and creates new programs to support drinking water and wastewater infrastructure projects. A majority of this funding is allocated to the existing Drinking Water State Revolving Fund (SRF) and the Clean Water State Revolving Fund SRF, both administered by the U.S. Environmental Protection Agency (EPA).

  • Drinking Water SRF: Authorizes funding through FY 2026 for the Drinking Water SRF, which provides capitalization grants to states for loans supporting water infrastructure projects. It would authorize: $2.4 billion for FY 2022; $2.75 billion for FY 2023; $3 billion for FY 2024; and $3.25 billion for each of FY 2025 and FY 2026.
  • Clean Water SRF: Authorizes funding through FY 2026 for the Clean Water SRF, which provides capitalization grants to states for loans supporting water quality improvement projects. It would authorize: $2.4 billion for FY 2022; $2.75 billion for FY 2023; $3 billion for FY 2024; and $3.25 billion for each of FY 2025 and FY 2026.
  • Drinking Water Assistance for Small and Disadvantaged Communities: Authorizes funding for the Assistance for Small and Disadvantaged Communities Drinking Water Grant Program, which helps public water systems in underserved and disadvantaged communities meet Safe Drinking Water Act requirements, in the amounts of: $70 million for FY 2022; $80 million for FY 2023; $100 million for FY 2024; $120 million for FY 2025 and $140 million for FY 2026.
  • Addressing Lead in Drinking Water: Authorizes funding to address lead in school drinking water systems in the amounts of: $30 million for FY 2022; $35 million for FY 2023; $40 million for FY 2024; $45 million for FY 2025 and $50 million for FY 2026.
  • Resiliency and Sustainability Grants: Authorizes $50 million annually for the Drinking Water System Infrastructure Resilience and Sustainability grant program and creates a corresponding $25 million per year Clean Water Infrastructure Resiliency and Sustainability Program, both of which would provide financing for resiliency projects, including conservation and supply augmentation projects.
  • Addressing Sanitary Sewer Overflows and Stormwater Reuse: Authorizes funding for the Sanitary Sewer Overflow and Stormwater Reuse municipal grants at $280 million annually for FY 2022 through FY 2026, with requirements to allocate at least 25 percent of such funds toward systems serving rural or otherwise disadvantaged communities.
  • Reauthorization and/or Creation of Additional Grant and Loan Programs: Authorizes and funds a number of other specific grant and loan programs, including:
    • $50 million annually through FY 2026 for the existing Water Infrastructure Finance and Innovation Act (WIFIA) loan program, which provides low-cost loans for a variety of water infrastructure projects.
    • $35 million annually through FY 2026 for technical assistance funding and emergency grants to public water systems, with an additional $15 million annually for technical assistance to small public water systems.
    • $20 million annually through FY 2026 to create the Wastewater Efficiency Grant Pilot Program for projects by publicly owned treatments works (POTWs) that seek to improve waste-to-energy systems, with individual grants capped at $4 million.
    • $25 million annually through FY 2026 to reauthorize an existing pilot program for alternative water source projects, including water potable reuse, wastewater and stormwater capture and treatment, and groundwater recharge projects.
  • Research into Water Infrastructure Technologies and Community Needs: Requires EPA to study safe drinking water technologies and community needs in the year following bill enactment. Provides $75 million annually through FY 2026 for research, investigations, training and informational grants authorized under Section 104 of the Clean Water Act.
  • Information Sharing:Requires EPA to facilitate sharing of information between stakeholders by creating a water data sharing pilot program and directing EPA to create a Water Reuse Interagency Working Group.
  • Low Income Water Assistance Pilot Program: Directs EPA to launch a pilot grant program to address water affordability. The pilot program will award grants to eligible entities to develop and implement programs to assist qualifying households with maintaining access to drinking water and wastewater treatment. Assistance could include discounted rates or direct financial support to households or debt relief to water system owners or operators.

EPA Water Infrastructure Supplemental Appropriations for FY 2022-2026

Division J, Title VI — Department of the Interior, Environment, and Related Agencies provides additional appropriated money from the Treasury for FY 2022-FY 2026.

  • Clean Water State Revolving Fund (SRF): $11.713 billion
    • 49 percent of the funds shall be used by the state to provide subsidy with 100 percent forgiveness of principal or grants (or any combination of these).
  • Drinking Water SRF: $11.73 billion
    • 49 percent of the funds shall be used by the state to provide subsidy with 100 percent forgiveness of principal or grants (or any combination of these).
  • Drinking Water SRF Lead Funding: $11.73 billion
    • Lead service line placement projects and associated activities directly connected to the identification, planning, design and replacement of lead service lines.
    • 49 percent of the funds shall be used by the state to provide subsidy with 100 percent forgiveness of principal or grants (or any combination of these).
  • Per- and Polyfluoroalkyl Substances (PFAS) Contamination: $10 billion
    • $1 billion through the Clean Water SRF
    • $4 billion through the Drinking Water SRF
    • $5 billion though the small and disadvantaged community grant program; and $3.5 billion for the Indian Health

Energy/Western Water Infrastructure

The legislation includes the Energy Infrastructure Act (S. 2377), sponsored by Senate Energy and Natural Resources Committee Chairman Joe Manchin (D-W.V.) that authorizes funding and programs across a host of fuel sources and technologies, as well as funding for Western Water infrastructure.

As a whole, the legislation includes funding to invest in the reliability and resilience of the electric grid and expand transmission capabilities, demonstrate critical energy technologies and build out domestic supply chains for clean energy technologies.

Grid Infrastructure and Resiliency

The bill contains numerous provisions aimed at hardening and enhancing the nation's electric grid infrastructure, spending approximately $65 billion in total. These programs include:

  • Preventing Outages and Enhancing the Resilience of the Electric Grid: Provides $5 billion in grants to states and Indian tribes, grid operators, fuel suppliers and other eligible entities to supplement efforts to harden the electric grid against disruptive extreme weather events.
  • Electric Grid Reliability and Resilience Research, Development and Demonstration: Provides $5 billion for a newly established "Program Upgrading Out Electric Grid Reliability and Resiliency." States, tribes and local governments would collaborate with electric sector owners and operators to develop demonstration innovative projects aimed at hardening and enhancing grid resilience on a cost-share basis.
  • Transmission Facilitation Program: Provides $2.5 billion to establish a revolving loan fund to facilitate the construction of new or replacement power transmission lines. The DOE may enter into contracts of up to 50 percent of planned capacity, which it may sell after determining the project has reached sufficient financial viability. The DOE may also enter into public-private partnerships for eligible projects.
  • Deployment of Technologies to Enhance Grid Flexibility: Provides $3 billion for the Smart Grid Investment Matching Grant Program, adding eligibility for the deployment of technologies that would allow for increased flexibility in responding to natural disasters, fluctuating demand and other events necessitating a quick rebalance of the grid system.
  • State Energy Program: Provides $500 million for the State Energy Program. State Energy Conservation Plans would be required to participate in activities supporting transmission and distribution planning, and allow such plans to include programs reducing carbon emissions in the transportation sector by 2050.

Energy Cybersecurity

The bill also includes a number of provisions aimed at promoting and incentivizing enhanced physical and cybersecurity of the electric grid. The bill would establish voluntary programs, provide grants to utilities to respond to threats and promote the use of advanced technologies. Specifically, these provisions include the following:

  • Enhancing Grid Security Through Public-Private Partnerships: The Secretary of Energy, the Secretary of Homeland Security, and other stakeholders deemed appropriate, would establish a new program to promote the voluntary adoption of physical and cybersecurity support and best practices for the electric grid.
  • Energy Cyber Sense Program: Establishes a voluntary program to test cybersecurity products and technologies intended for use in the bulk-power system.
  • Incentives for Advanced Cybersecurity Technology Investment: Directs the Federal Energy Regulatory Commission (FERC) to promulgate a rule incentivizing investments in cybersecurity technologies and threat information sharing.
  • Rural and Municipal Utility Advanced Cybersecurity Grant and Technical Assistance Program: Establishes a new Rural and Municipal Utility Advanced Cybersecurity Grant and Technical Assistance Program at DOE that would give grants to eligible entities to protect against, respond to and recover from threats. This new grant program is funded at $250 million.
  • Enhanced Grid Security: Establishes a $250 million research and development (R&D) program for the energy sector to develop advanced cybersecurity applications and technologies. Also establishes a $50 million program aimed at enhancing emergency response and preservation of the grid.

Supply Chains for Clean Energy Technologies

The infrastructure bill supports the supply chain for clean energy technologies, echoing findings from the June 2021 Biden Administration supply chain report acknowledging the need to bolster the U.S. supply chains, specifically for large-capacity batteries and critical materials. Key provisions include:

  • Provides $140 million for DOE to establish a rare earth demonstration facility that will include a full-scale integrated rare earth element extraction and separation facility and refinery.
  • Supports critical minerals supply chains by giving agencies direction to evaluate and adhere to permitting timelines for critical mineral projects.
  • Provides $3 billion to establish a Battery Material Processing Grant program to be administered by DOE's Office of Fossil Energy and Carbon Management (FECM).The eligibility for and structure of these grants are outlined in subsection 40207(b). Another $3 billion is included for Battery Manufacturing and Recycling Grants to be administered by DOE's Office of Energy Efficiency and Renewable Energy (EERE). The eligibility for and structure of these grants are outlined in subsection 40207(c).
  • Provides $200 million for an electric drive vehicle battery recycling and second-life applications program to bolster the recycling supply chain.
  • Provides $750 million for an advanced energy manufacturing and recycling grant program benefiting manufacturing firms with gross annual sales of $100 million or less, and with less than 500 employees.
  • Provides $100 million for critical minerals mining and recycling research, with a $10 million cap on individual awards.

Fuels and Technology Infrastructure Investments

The bill supports the development of fuel and technology sources, including carbon capture, utilization and storage (CCUS) and hydrogen. Funding in support of these activities include:

CCUS

  • Provides more than $310 million in grant funding for states, local governments and public utilities to procure or use products derived from captured carbon oxides.
  • Provides $100 million for a front-end engineering and design program at the DOE for infrastructure to transport carbon dioxide necessary to the deployment of CCUS technologies.
  • Creates a CO2 Infrastructure Finance and Innovation Act (CIFIA) program to provide low-interest loans to eligible entities for carbon dioxide transportation projects over $100 million. The program would also provide grants to pay part of the cost of initial excess capacity at a new facility. The CIFIA program is funded at $600 million per year for FY 2022 and FY 2023 and $300 million for FY 2024-2026.
  • Provides $2.5 billion to expand the DOE's Carbon Storage Validation and Testing program to include a large-scale carbon storage commercialization program.
  • Provides $75 million for the EPA to award grants to states to establish their own permitting programs.
  • Provides $3.5 billion toward direct air capture projects to support the establishment of four regional hubs.

Hydrogen

  • $8 billion to establish at least four regional clean hydrogen hubs that "demonstrate the production, processing, delivery, storage, and end-use of clean hydrogen."
  • $500 million for advanced clean hydrogen manufacturing and recycling research and development.
  • $1 billion toward R&D, demonstration, commercialization and deployment of clean hydrogen from electrolyzers.

Office of Clean Energy Demonstrations

Establishes a new Office of Clean Energy Demonstrations (OCED) within the DOE to oversee and manage demonstration projects funded by the Energy Division of this bill as well as the Energy Act of 2020. The OCED would support DOE's efforts to commercialize clean energy technologies, reduce costs and address barriers to widespread deployment. OCED is funded at $21.456 billion.

Efficiency and Building Infrastructure

The bill authorizes numerous programs to encourage and fund energy efficiency upgrades to various types of building infrastructure. These programs include:

  • Residential and Commercial: Provides $250 million to establish the Energy Efficiency Revolving Loan Fund Capitalization Grant program under the State Energy Program for states to conduct commercial or residential energy audits or upgrades and retrofits. States are required to use the grants to leverage private capital to the greatest extent practicable. The bill also authorizes $40 million to states to train individuals to conduct commercial or residential energy audits.
  • Cost-Effective Codes Implementation for Efficiency and Resilience: Provides $225 million toward a competitive grants program through DOE's Building Technologies Office for states or regional partnerships to implement updated building energy codes, including through training and data collection.
  • Building, Training and Assessment Centers; Career Skills Training: Provides $10 million in grants to institutions of higher education to establish centers to train engineers and other qualified individuals in energy-efficient design and operations. An additional $10 million would go toward the federal cost share of nonprofit partnerships between public employers, industry and labor for career skills training programs.
  • Future of Industry Program and Industrial Research and Assessment Centers: Provides $550 million to fund institutions of higher education-based centers that provide assessments of small- and medium-sized manufacturers to optimize their energy efficiency and environmental performance. These centers would also promote emerging technologies and R&D for alternative energy sources for energy-intensive industries.
  • Weatherization Assistance Program: Provides $3.5 billion for the existing Weatherization Assistance Program (WAP), which reduces household energy use through installation of cost-effective energy savings programs.
  • Energy Efficiency and Conservation Block Grant: Provides $550 million for the Energy Efficiency and Conservation Block Grant Program (EECBG), a block grant program to provide grants to state and local governments for energy efficiency and conservation projects. The legislation amends the program to allow EECBG funding to be used to finance energy efficiency and other clean energy investments, projects, loan programs and performance contracting programs.
  • AFFECT Grants: Provides $250 million for the Assisting Federal Facilities with Energy Conservation Technologies (AFFECT) grant program, administered by the Federal Emergency Management Program (FEMP) to provide grants to federal agencies to leverage private capital to make energy and water efficiency upgrades to federal buildings.

Loan Programs

The DOE Loan Programs Office (LPO) has seen an increase in activity with the change of Administrations. LPO aims to reduce greenhouse gas emissions through investment in U.S. projects. The legislation provides for improved energy infrastructure investment through federally backed debt capital. Specifically, the legislation makes the following changes within LPO:

  • Clarifies reasonable prospect of repayment criteria for both the Title XVII Innovative Energy Loan Guarantee (Title XVII) Program and the Advanced Technology Vehicle Manufacturing (ATVM) Program.
  • Expands eligibility for the Title XVII Program to include projects that increase the domestic supply of critical minerals through production, processing, manufacturing, recycling or fabrication of mineral alternatives.
  • Expands eligibility for the ATVM program to include medium- and heavy-duty vehicles, trains, aircraft, marine transportation and hyperloop technology.

Western Water Infrastructure

Authorizes and appropriates $8.3 billion for FY 2022-2026 for Bureau of Reclamation western water infrastructure:

  • Aging infrastructure: $3.2 billion for rehabilitation and replacement activities; $100 million for reserved or transferred works that have suffered a critical failure and $100 million for dam rehabilitation, reconstruction or replacement.
  • Water Storage, Groundwater Storage and Conveyance Projects: $1.15 billion in grants to plan and construct small surface water and groundwater storage projects, which includes $100 million for small water storage.
  • Water Recycling and Reuse Projects: $1 billion, including $450 million for large water recycling projects.
  • Desalination: $250 million
  • Rural Water Projects: $1 billion
  • Dam Safety: $500 million
  • Drought Contingency Plan: $300 million, including $50 million for Upper Basin states
  • WaterSMART Water and Energy Efficiency Grants: $400 million, including $100 million for natural or nature-based features
  • Cooperative Watershed Management Program: $100 million
  • Aquatic Ecosystem Restoration Program: $250 million
  • Multi-Benefit Watershed Projects: $100 million
  • Colorado River Fish Species Recovery Programs: $50 million

DOE Supplemental Appropriations for FY 2022-2026

Division J, Title III - Energy and Water Development and Related Agencies provides additional appropriated money from the Department of Energy (DOE) for five years, FY 2022-FY 2026, which funds a majority of the programs outlined above.2 Funding is as follows:

  • Office of Energy Efficiency and Renewable Energy (EERE): $16.264 billion
  • Office of Electricity: $8.1 billion
  • Office of Clean Energy Demonstrations (OCED): $21.456 billion
  • Nuclear Energy: $6 billion
  • Office Fossil Energy Carbon Management: $7.497 billion
  • Carbon Dioxide Transportation Infrastructure Finance and Innovation Program Account: $2.1 billion
  • Energy Cybersecurity: $550 million

Broadband Infrastructure

The infrastructure package provides a significant infusion of federal funding for broadband infrastructure, as the COVID-19 pandemic demonstrated the need for broadband investments to ensure that Americans have access to affordable, reliable internet. The legislation includes $65 billion in funding for broadband infrastructure and implements several programs for the following broadband initiatives:

Broadband Equity, Access and Deployment Program ($42.45 billion): The bill provides formula-based grants to states to competitively award grants for qualifying broadband infrastructure, mapping and adoption projects. The program would be administered by the National Telecommunications and Information Administration (NTIA), and funds would be available until expended. The U.S. Department of Commerce must provide a detailed spending plan to Congress 90 days after enactment.

States would receive a minimum of $100 million; the remaining funding would be allocated in accordance with a formula that considers the number of unserved and high-cost locations in the state, on a comparative basis. The funding includes a 10 percent set-aside for high-cost areas. All projects would have to meet a minimum download/upload build standard of 100/20 megabits per second. To increase affordability, all funding recipients have an obligation to offer a low-cost plan as a condition of receiving funding.

The bill requires local coordination on the part of the state. Specifically, the bill requires the state to submit a "5-year-action plan" as part of its proposal, which "shall be informed by collaboration with local and regional entities."

States may use funds to competitively award sub-grants for:

  • Unserved service projects (defined as an area that lacks access or access to 25/3 speed and latency sufficient to support real-time, interactive applications) and underserved service projects (defined as an area that lacks access to 25/100 speed and a latency sufficient to support real-time, interactive applications).
  • Connecting eligible community anchor institutions, which is defined as an entity such as a school, library, health clinic, health center, hospital or other medical provider; public safety entity; institution of higher education; public housing organization or community support organization that facilitates greater use of broadband service by vulnerable populations, including low-income individuals, unemployed individuals and aged individuals.
  • Data collection, broadband mapping and planning.
  • Installing broadband infrastructure or providing reduced-cost services within a multifamily residential building, with priority given to a building that has a "substantial share" of unserved households or in a designated poverty area.
  • Broadband adoption.

Enabling Middle Mile Broadband Infrastructure ($1 billion): Establishes a grant program at NTIA for the construction, improvement or acquisition of middle-mile infrastructure, which is defined as "any infrastructure that does not connect directly to an end-user location, including an anchor institution." The bill directs NTIA to make grants on a competitive basis to eligible entities for the construction, improvement or acquisition of middle-mile infrastructure. Eligible entities include: telecommunication companies, technology companies, electric utilities and utility cooperatives. The grant program is authorized for five years, from FY 2022 through 2026.

  • $1 billion is appropriated to remain available until September 30, 2026, for competitive grants. The Secretary of Commerce shall issue a Notice of Funding Opportunity (NOFO) not later than 180 days after the date of enactment of this bill. The Commerce Secretary shall make awards not later than 270 days after issuing the NOFO.

Digital Equity Act Competitive Grant Programs ($2.75 billion): The legislation includes the Digital Equity Act of 2021 (H.R. 1841, sponsored by Rep. Jerry McNerney (D-Calif.) / S. 2018, sponsored by Sen. Patty Murray (D-Wash.)), which creates two grant programs for promoting digital equity, support digital inclusion activities and building capacity at the state-level for increased broadband adoption.

The Commerce Secretary shall issue a NOFO not later than 180 days after the funds are made available, and the Secretary shall make awards not later than 270 days after issuing the NOFO.

  • State Digital Equity Capacity Grant Program: Appropriates $60 million for planning grants to states to develop State Equity Plans; $240 million for FY 2022 and $300 million per year for FY 2023 to 2026, funding years to support implementation and digital inclusion initiatives. Makes distributions to states based on their populations, demographics, and availability and adoption of broadband.
  • Digital Equity Competitive Grant Program: Appropriates $250 million per year for competitive grants to public and nonprofit entities for a range of digital inclusion and broadband adoption activities.

Broadband Affordability:

  • Modifies Emergency Broadband Benefit and Makes Renamed Program Permanent ($14.2 billion): Makes the Emergency Broadband Benefit program at the Federal Communications Commission (FCC)3 permanent, renaming it to the Affordable Connectivity Program. The program provides a $30 per month voucher for low-income families to use toward any internet service plan of their choosing. It builds on the Emergency Broadband Benefit, making the benefit permanent and expanding eligibility to help more low-income households.
  • Consumer Broadband Labels: Requires the display of "consumer broadband labels." Consumer broadband labels were proposed by the FCC in 2016 in an effort to help consumers better understand what they are receiving in terms of pricing, performance levels and data caps.
  • Digital Discrimination: Requires the FCC to adopt rules within two years to address digital discrimination. It also directs the FCC to develop "model policies and best practices" for states and localities to prevent digital discrimination.

Resiliency

Resiliency: Army Corps of Engineers Funding

There is a total of $17 billion in supplemental appropriations "to remain available until expended" for the U.S. Army Corps of Engineers. Within 60 days of bill enactment, for each of the accounts below, the Army Corps is required to submit to Congress a "detailed spending plan" (similar to the annual appropriations Work Plans) with the projects/studies that will be funded with the appropriations.

Investigations: $150 million

Construction: $11.615 billion

  • $1.5 billion for major rehabilitation, construction and related activities for rivers and harbors
  • $200 million be for water-related environmental infrastructure assistance
  • $2.5 billion for inland waterways projects
  • $465 million for Continuing Authorities Program (CAP):
    • Section 14: Streambank and shoreline erosion protection of public works and nonprofit public services
    • Section 103: Beach erosion and hurricane and storm damage reduction
    • Section 107: Navigation improvements
    • Section 204: Beneficial uses of dredged material
    • Section 205: Flood control
    • Section 206: Aquatic ecosystem restoration
    • Section 1135: Project modifications for improvement of the environment
  • $1.9 billion shall be for aquatic ecosystem restoration projects
  • $2.55 billion for coastal storm risk management, hurricane and storm damage reduction projects, and related activities for states that have been impacted by federally declared disasters over the last six years
    • $200 million for shore protection projects
  • $2.5 billion for inland flood risk management projects

Mississippi River: $808 million

Operation and Maintenance: $4 billion

Water Infrastructure Finance and Innovation Act (WIFIA): $75 million

  • $64 million for the cost of direct loans and for the cost of guaranteed loans, for safety projects to maintain, upgrade and repair dams identified in the National Inventory of Dams with a primary owner type of state, local government, public utility or private.

Resiliency: Federal Emergency Management Agency (FEMA) Funding

Building Resilient Infrastructure and Communities (BRIC) Program: Provides $1 billion over five years ($200 million per year) for the Building Resilient Infrastructure and Communities (BRIC) Program, which supports pre-disaster and hazard mitigation activities undertaken by states, U.S. territories, Indian tribal governments and local communities.

FEMA Flood Mitigation Assistance Program: Provides $3.5 billion over five years ($700,000 million per year) for the Flood Mitigation Assistance program, which helps provide financial and technical assistance to states and communities to reduce the risk of flood damage to homes and businesses through buyouts, elevation and other activities.

Resiliency: Cybersecurity

As part of the broader aim to reinvigorate infrastructure resiliency, the legislation includes several cybersecurity-related initiatives as more American critical infrastructure migrates online.

State and Local Cybersecurity Grant Program ($1 billion): Establishes a grant program at the U.S. Department of Homeland Security (DHS) to provide funding to state and local governments to address cybersecurity risks and threats.

  • Cybersecurity Plans: In order to submit an application for this grant, eligible entities must submit a cybersecurity plan that incorporates plans to protect against cybersecurity risks and threats, and describes plans to enhance cybersecurity.
  • Eligible Use of Funds: Funding recipients can use funding to implement a Cybersecurity Plan; develop or revise a Cybersecurity Plan; pay expenses related to grant administration; and assist with activities that address imminent cybersecurity threats, on a flexible basis.

The bill appropriates $1 billion for the grant program, under Division J, Title V (Department of Homeland Security). Specifically, the bill appropriates $200 million for FY 2022, $400 million for FY 2023, $300 million for FY 2024 and $100 million for FY 2025.

This section includes language from the State and Local Cybersecurity Improvement Act (H.R. 3138), sponsored by Rep. Yvette Clarke (D-N.Y.), which passed the House on July 20, 2021.

Cyber Response and Recovery Fund ($100 million): Appropriates $100 million ($20 million per year for five years; unused funds will remain available until expended with program ending on September 30, 2028) to establish the Cyber Response and Recovery Fund, a fund for federal, state, local and tribal entities as well as private entities to seek reimbursement and technical assistance following significant cyber incidents. The program would be administered by the Cybersecurity and Infrastructure Security Agency (CISA).

The legislation would authorize the National Cyber Director, in consultation with the Homeland Security Secretary, to declare a significant cybersecurity incident. It would define a significant cybersecurity incident as one that results in harm to national security interests, foreign relations, or the U.S. economy; or the public confidence, civil liberties or the public health and safety of the U.S.

This provision includes language from the Cyber Response and Recovery Act (S. 1316) sponsored by Senate Homeland Security and Governmental Affairs Chairman Gary Peters (D-Mich.) and ranking member Rob Portman (R-Ohio).

Office of the National Cyber Director ($21 million): Appropriates $21 million to fund the Office of the National Cyber Director through September 30, 2022, under Division J - Title IV (Financial Services and General Government)

The National Cyber Director was created by the FY 2021 National Defense Authorization Act (NDAA), and is intended to serve as a coordinating mechanism for cybersecurity policy between federal agencies, Congress and the White House. Despite the Office of the National Cyber Director being a marquee recommendation of the congressionally chartered Cyberspace Solarium Commission (CSC), Congress has not appropriated money for the National Cyber Director to date.

Environmental Remediation

  • Hazardous Substance Superfund Remediation Account ($3.5 billion): Provides $3.5 billion to the Superfund remedial account for five years, allowing U.S. Environmental Protection Agency (EPA) to continue to invest in the remediation of properties contaminated with legacy releases of hazardous substances, i.e., Superfund sites. It also waives the state cost-share requirements and encourages the EPA Administrator to consider the unique needs of tribal communities with Superfund sites, without changing the process for prioritizing Superfund clean-up sites.
  • Competitive Brownfields Grants ($1.2 billion): Provides $1.2 billion over five years to the EPA's Brownfields program.

Pay-Fors

  • Reinstatement of Superfund Tax: $14.45 billion. The Superfund Tax, originally enacted in 1980 and expired in 1995, was an excise tax on the sale, use or import of 42 listed chemical or a taxable substance made from such listed chemical. The legislation reinstates fees on certain Superfund fees on chemicals for a period of 10 years, beginning on July 1, 2022, and sunsetting on December 31, 2031. The legislation adjusts the determination of taxable substances from a baseline of 50 percent to 20 percent to protect domestic manufacturers. It increases the rate on taxable substances where the importer does not furnish information to the U.S. Department of the Treasury Secretary at 10 percent.
  • Information Reporting Cryptocurrency: $27.97 billion. The legislation imposes new IRS reporting requirements on brokers of cryptocurrency, defined as "any person who (for consideration) is responsible for regularly providing any service effectuating transfers of digital assets on behalf of another person." The BIFF also imposes penalties for the failure to report.
  • Early Termination of Employment Retention Credit: $8.22 billion. The Employee Retention Credit (ERC) was first revitalized as a response to the COVID-19 pandemic in Coronavirus Aid, Relief, and Economic Security Act (CARES Act) in March 2020. The refundable tax credit for employers impacted by the pandemic was set to expire at the end to 2021. The BIFF eliminates the credit for all employers except those classified as start-up recovery businesses early – it is now only available for wages paid through October 1, 2021.
  • Extension of Pension Interest Rate Stabilization: $2.87 billion. Building off the provisions in the American Rescue Plan, BIFF further extends stabilization for an additional five years and modifies percentages of funding requirements.
  • Custom User Fees: Awaiting score

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.


Notes

1 Nineteen Republican senators joined Senate Democrats in voting "yes" on the bill: Sens. Roy Blunt (R-Mo.), Richard Burr (R-N.C.), Shelley Moore Capito (R-W.Va.), Bill Cassidy (R-La.), Susan Collins (R-Maine), Kevin Cramer (D-N.D.), Mike Crapo (R-Idaho), Deb Fischer (R-Neb.), Lindsey Graham (R-S.C.), Chuck Grassley (R-Iowa), John Hoeven (D-N.D.), Mitch McConnell (R-Ky), Lisa Murkowski (R-Alaska), Rob Portman (R-Ohio), James Risch (R-Idaho), Mitt Romney (R-Utah), Dan Sullivan (R-Alaska), Thom Tillis (R-N.C.) and Roger Wicker (R-Miss.)

2 For further details on appropriations in the Energy infrastructure division of this bill, contact either Partner Taite McDonald or Senior Policy Advisor Beth Viola.

3 The Emergency Broadband Benefit Program was established by the Consolidated Appropriations Act, 2021 (P.L. 116-260). The program provides eligible households with discounts of up to $50 per month for broadband service, and up to $75 per month of the household is on tribal lands. It also provides a one-time discount of up to $100 on a computer or tablet for eligible households.

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