The National Electric Vehicle Infrastructure Program (“NEVI Program”), one of the key pieces of the 2021 Bipartisan Infrastructure Law, set aside $5 billion in federal funding to spur the nationwide development of electric vehicle charging infrastructure. The Federal Highway Administration administers the funds, of which NDOT has been allotted $30 million (to be made available by NDOT to successful applicants in installments over the next 5 years, with the first such installment being $17 million in aggregate).

Under the NEVI Program, that funding can be used to finance up to 80% of EV charging station project costs, with the remaining portion funded by private or state sources. Nebraska’s delay in opening its application portal was a product of several state law updates needed to align Nebraska laws with the NEVI Program’s requirements (set forth in the National Electric Vehicle Infrastructure Standards and Requirements Final Rule promulgated on February 23, 2023 in 23 CFR Part 680 (“Final Rule”)). As indicated in NDOT’s June 14 press release, those necessary updates were included in the recently passed Nebraska Legislative Bill 1317, paving the way for the funding application portal to open. Those updates included:

(1) amending NRS 70-1001.01 to clarify that the term “Electric supplier or supplier of electricity” excludes operators of commercial EV charging stations, provided these operators are private individuals or owned by private partnerships, corporations, or businesses;

(2) amending NRS 70-1002.02 to permit EV charging station operators to bill customers based on $/kWh used; and

(3) amending NRS 70-1002.02 to mandate that EV charging stations receiving state or federal funding must be installed by professionals certified by the Electric Vehicle Infrastructure Training Program.

These amendments align Nebraska’s state law with the requirements of 23 CFR Part 680, specifically 23 CFR 680.106(j)(1) (which requires that states receiving NEVI Program funds “ensure that the workforce installing, maintaining, and operating chargers have appropriate licenses, certifications and training” and that “all electricians installing, operating, or maintaining [electric vehicle supply equipment]” either have received a certificate from the Electric Vehicle Infrastructure Training Program or have graduated or received a continuing education certificate from a registered apprenticeship program for electricians that includes charger-specific training and is developed as a part of a national guideline standard approved by the Department of Labor in consultation with the Department of Transportation), and 23 CFR 680.116(a) (which requires that “price for charging…be displayed prior to initiating a charging transaction and be based on the price of electricity to charge in $/kWh”).

This last amendment is especially important as, prior to the passage of LB 1317, only electric utility providers were allowed to utilize the $/kWH metric.

Although NDOT anticipates issuing a Request for Proposals (“RFP”) to solicit NEVI Program funding applications, the details of that RFP, and potential funding agreement terms and conditions, remain unclear; however, understanding the minimum standards and requirements set forth in the Final Rule will be advantageous for applicants, as final contracts with NDOT will necessitate adherence to these requirements (including aiding in NDOT’s reporting duties to the FHWA under 23 CFR 680.112 (which reporting covers data and information that will likely only be available to commercial electric vehicle charging operators, such as tracking kWh dispensed per charging session, time logs, error codes, and outage durations)).

Whether Nebraska will set more rigorous standards or requirements for awardees than what the Final Rule requires is uncertain; however, applicants should be aware that, as set forth in the Statutory Authority for NEVI Formula Program Minimum Standards and Requirements in the Final Rule, “nothing in this final rule is intended to be construed to prevent States…from establishing more stringent EV charging infrastructure requirements.” Nevertheless, NDOT’s anticipated opening of its applicant portal for NEVI Program funding will come as welcome news to both EV charging station developers and operators, and also to EV drivers traversing Interstate 80.

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