U.S. DOT Releases NEVI Formula Program Guidance

As we highlighted in our December 29, 2021 and January 19, 2021 posts, on November 15, 2021, the Bipartisan Infrastructure Law (BIL) was passed, enacted as the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58), which included the authorization of the National Electric Vehicle Infrastructure (NEVI) Formula Program. After collecting public comment, the U.S. Department of Transportation (DOT) released its guidance for the NEVI Formula Program on February 10, 2022, representing yet another stake in the ground from the federal government for the development of a national EV charging network and giving both public and private stakeholders a sense of the emerging framework for accessing these catalyzing infrastructure dollars.

Under the NEVI Formula Program in the IIJA, a total of $7.5 billion has been allocated to developing and constructing a national network of 500,000 EV charging stations by 2030. The first $5 billion of the $7.5 billion has been dedicated to funding state programs over the next five years, and each state will be required to submit an EV Infrastructure Deployment Plan (EV Plan) no later than August 1, 2022 to the Joint Office Of Energy and Transportation (the “Joint Office”) describing the state’s intended use of such funds. Thereafter, the Federal Highway Administration will approve eligible plans on a rolling basis by September 30, 2022. In addition, ten percent of the $5 billion will be set aside to provide discretionary grants to fill gaps in the national network. The remaining $2.5 billion will be allocated for a discretionary grant program targeted at bringing EV charging infrastructure to rural and underserved communities. Guidance for this discretionary funding will be released separately by the U.S. DOT later this year.

EV Plans must comply with Section 508 of the Rehabilitation Act and a recommended template will be available from the Joint Office. In preparing an EV Plan, as described in the NEVI Formula Program Guidance, states should generally adhere to the following framework:

Introduction: This section should introduce the EV Plan and summarize the topics included in the plan.
State Agency Coordination: This section should describe how the state’s department of transportation and energy or environmental department have coordinated in the development of the EV Plan.
Public Engagement: This section should describe how the state has engaged various stakeholder groups in the development of the EV Plan, including the general public, governmental entities, federally recognized Tribes, labor organizations, private sector/industry representatives, representatives of the transportation and freight logistics industries, state public transportation agencies, and urban, rural, and underserved or disadvantaged communities.
Plan Vision and Goals: This section should lay out how the state will use the funds, broken into a five-year plan, in a way that supports the NEVI Program’s objective of providing a convenient, affordable, reliable, and equitable statewide and national EV network.
Contracting: In this section, the state should describe any plans to contract with third-party entities for the construction, operation and maintenance of EV charging stations.
Existing and Future Conditions Analysis: This section should describe any state-specific considerations that may impact the development of EV charging infrastructure, including geographical and environmental conditions, industry and market conditions, public transportation needs and grid capacity.
EV Charging Infrastructure Deployment: This section should lay out the state’s strategy of infrastructure installation to meet the visions and goals of the EV Plan. This section should also identify the utilities where the EV stations are planned and should include a map of the charging infrastructure as well as usage rates and peak demand.
Implementation: In this section, states should describe planned operation, maintenance and data collection, and sharing programs.
Civil Rights: This section should outline the state’s plan to comply with State and Federal civil rights laws, including Title VI of the Civil Rights Act and accompanying U.S. DOT regulations, the American with Disabilities Act, and Section 504 of the Rehabilitation Act.
Equity Considerations: This section should describe how the state’s plan will address the Federal Government’s mission to provide equitable access to EV technologies. The plan should describe the state’s strategy to engage rural, underserved, and disadvantaged communities in the development of EV infrastructure and should focus on providing jobs for these communities, as well as ensuring access to EV stations.
Labor and Workforce Considerations: This section should explain how the state will create diversity in the workforce installing and servicing the EV stations.
Cybersecurity: This section should outline the state’s cybersecurity plan to protect EV stations and users from malicious code.
Program Evaluation: This section should outline the state’s plan for evaluating performance of the infrastructure and generally in achieving its 5-year goals and vision.
Discretionary Exceptions: States may, in limited circumstances, submit a request for an exception to the requirement that charging stations be installed every 50 miles along that State’s portion of the Interstate Highway System within 1 travel mile of the Interstate. Requests must be supported by evidence that granting the exception will further the Federal Government’s mission to provide a convenient, affordable, reliable, and equitable national EV charging network.

Funding that states receive from the EV Plan must first be directed to designated national electric vehicle charging and hydrogen, propane, and natural gas fueling corridors, as further described in 23 U.S.C. §151(a)-(e), and, once a state has built out its corridors, as certified by the Federal Highway Administration, states may use remaining allocated funds to develop EV infrastructure on any public road or in other publicly accessible locations. Corridors are considered fully built out if: (i) EV charging infrastructure is installed every 50 miles along the designated corridors; (ii) the charging stations are capable of simultaneously charging four EVs; (iii) the charging stations have a capacity at or above 600kW total or at least 150kW per port; and (iv) the corridor meets any additional considerations required by the Secretary of Transportation. However, the Secretary will not certify that any corridor has been fully built out during the first year of the NEVI Formula Program.

Given the timelines for states to submit their EV Plans, funding from the NEVI Formula Program may not materialize until late 2022, though the Guidance does leave open the possibility that some states may act faster and get their EV Plans approved ahead of the Q3 deadlines.

On February 22, 2022, the Department of Transportation and representatives from the Joint Office and others led an “Infrastructure School” discussion of the NEVI Formula and other EV funding opportunities that exist at the Federal level, moderated by Stephanie Sykes, Director of Intergovernmental Affairs, White House Infrastructure Implementation Team. The speakers noted that a total of $18.6 billion will be made available from the Federal EV funding programs, including $5B through the NEVI program, an additional $2.5B for corridor and community charging through Charging and Fueling Infrastructure Grants (part of the IIJA), $5.6B in Low or No Emission (Bus) Grants, $250M through the Electric or Low-Emitting Ferry Program, $26M through the Low or No Emission Vehicle Component Assessment Program, $200M for Electric Drive Vehicle Battery Recycling and 2^nd Life Apps, and $5B through the Clean School Bus Program.

Andrew Wishnia, Deputy Assistant Secretary for Climate Policy at the DOT, called these programs a “once in a generation opportunity to build out an EV charging network” that is safe, convenient, reliable, and accessible. The programs will be administered by some combination of the DOT, the DOE, and the EPA. Further details on all of these programs are available in the BIL Guidebook. Additional training sessions will be held by the Joint Office on some of these programs.

The Foley team will continue to monitor these developments as we remain ready to help clients navigate this new EV and related infrastructure landscape.

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