In some ways, the WIFIA FCRA Criteria are so intricately bad that they’re kind of fun to write about. I’ve been able to use words and phrases that don’t usually come up in federal infrastructure finance: rabbit hole, crooks and imbeciles, jargon-filled word salad, smoking gun, poster child. Even a set of satirical images — Per Criteria Obscura, Convicta et Combusta!

But these are serious times and there are more important things to do. Congress, CBO, OMB, CWIFP and its stakeholders should not have to spend any more time on fixing the Criteria than is absolutely necessary. Even I, probably the only person on earth who found the Criteria occasionally amusing and somewhat edifying with respect to FCRA principles, would now very much rather be thinking and writing about federal infrastructure finance policy.

So, what is the quickest way to fix this issue?

Bipartisan Senate and House amendment bills have been introduced. The facts that (1) unlike past bills on WIFIA amendments, these are solely dedicated to the FCRA issue, and (2) the sponsors and their staffs, who must be incredibly busy right now, took the time to introduce them, indicate serious intent. A realistic threat, as it were, to fix the issue by main force — if necessary.

Perhaps with a bit of additional language, as described here, I think CBO could be brought round one way or another to scoring the proposed amendment correctly this time. Let’s assume that’s the case for now.

That leaves OMB. To start there, we can put aside all the criticism of the current Criteria and just characterize them as a bureaucratic mistake about a highly technical budgeting issue. Happens all the time, right? Once they are fixed, the whole thing will be permanently forgotten in a nanosecond.

I believe — and I’m pretty sure I’m right about this — that as a Federal Register Notice, the current Criteria can simply be amended by OMB and re-published. I don’t see anything in the original Congressional Directive that would prevent this. Consultation with the CWIFP section of WIFIA and CBO, as required in the original Directive, is necessary again this time anyway, for two reasons.

The first is that CBO should be given an opportunity to include something about ensuring that federal sovereign power is not being misused in cost-share situations. This may be highly unlikely to occur in actual cost-share deals, but I think it’s a theoretically valid reason to require specific due diligence with respect to FCRA classification. That standard might be handy to have in place in future if CBO is asked to score a big funding increase for CWIFP cost-share loans. It’s not unrealistic to think that program cost-share loans — which facilitate local funding and reduce federal outlays — will become a popular item in the federal infrastructure policy toolbox. So, for the avoidance of doubt.

Second, the revised Criteria will need to work for CWIFP stakeholders. If they do, the amendment bills can be withdrawn. If they don’t — well, the fight continues. In Congress. In public. At a time when bureaucratic overreach is a political meme (and a Project 2025 thing — just saying). When water sector stakeholders will be increasingly energized about threatened federal support. When extreme weather events involving droughts and floods are in the news every day. When no one has any more time to waste on this pointless issue.

I cannot — I just cannot — see why this kind of fight about so indefensible a thing is in OMB’s interest in any way. When the alternative is simply to meet quietly with other federal officials and work out something that only involves a few amendments to a Federal Register Notice? Most of the original form could be left — even most of the Background Section boilerplate jargon could be left in place as long as long as the reference to ‘assets’ was inserted in the last sentence. A few key word changes, some re-focusing of the questions — maybe half a day of drafting. Probably won’t be a work of art as a government publication — but who cares? As long as the revised Notice works for CBO and CWIFP, the issue will instantly evaporate and everyone will move on.

Looking at all this from the outside, but with some understanding of the specific issue and past-life experience in many deals, were I asked for advice, it’d be simple:

There are no fundamental disagreements about important things here. A mistake was made, which might be embarrassing to admit. But fixing it in a public forum can be done, if necessary, and that will be more embarrassing. There is a much better alternative for all concerned — amend the Criteria. The next step is straightforward — someone with standing in the matter (which I think would include Congress, CWIFP or even OMB’s new political leadership) should contact the relevant group at OMB and offer to quietly work it out.