Director's Order No. 98

Subject: Procedures and Contractual Instruments for Habitat Development Projects on Private Lands or Under the North American Programs

Sec. 1 Purpose. This Order establishes Servicewide policy for the choice of methods and contractual instruments for habitat development projects on private lands or in association with the North American Program. The methods and instruments are based on Office of the Solicitor opinions. It also defines terms, including several related to the North American Program.

Sec. 2 Background. The Federal Grant and Cooperative Agreement Act of 1977 (31 U.S.C. 6301 et seq.) formally distinguishes acquisition from assistance relationships, i.e., the different purposes and characteristics of acquisition contracts, grants, and cooperative agreements, and the proper uses of each by executive agencies. Although the Act's guidelines are Governmentwide in scope, the North American Program has certain statutory exemptions as defined and described in this Order. With regard to that program, the Department of the Interior's Office of the Solicitor has determined that:
 

Insofar as implementing projects under the North American Wetlands Conservation Act (NAWCA), the general rules under the Grant and Cooperative Agreement Act, 31 U.S.C. 6301 et seq., for determining whether to utilize a contract, grant or cooperative agreement, do not apply. A grant or cooperative agreement may be utilized for such projects, rather than a contract, without regard to the direct benefit versus public purpose analysis generally required under the Grant and Cooperative Agreement Act, so long as the proposed project is to be carried out on a cost-sharing basis. .... We also note that the above provision applies not only to projects under the NAWCA, but also to projects carried out pursuant to the North American Waterfowl Management Plan.
 

Sec. 4 Definitions. For the purposes of this Order, the following definitions shall apply:

a. "Habitat development" means the physical manipulation of lands or waters to create, restore, enhance, or manage fish and wildlife habitats.

b. "Construction," "contract," "public building or public work." The Service shall apply the Department of Labor definitions for "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction," as contained in the latest edition of title 29, subpart 5.2 of the Code of Federal Regulations. (See Exhibit 1 for the current edition's definitions.)

c. "North American Waterfowl Management Plan (NAWMP) Project" means any project identified as a part of the North American Waterfowl Management Plan, a Joint Venture Implementation Plan, a State Action Plan, or a Focus Area Action Plan, which is prepared pursuant to the NAWMP and addresses the objectives and implementation strategies of the NAWMP as expressed in the NAWMP itself (1986, updated 1994; 1998 update in progress). A NAWMP Project shall be carried out through partners associated with the NAWMP or a Joint Venture of the NAWMP. By virtue of Federal leadership responsibility for the NAWMP, the Fish and Wildlife Service is considered a partner in every Joint Venture and it may contribute to overall NAWMP objectives outside of Joint Ventures. A NAWMP Project shall be carried out on a cost-sharing basis among project partners, which may include the Fish and Wildlife Service.

d. "North American Wetlands Conservation Act (NAWCA) Project" means any project funded under the terms of the North American Wetlands Conservation Act of 1989 (16 U.S.C. 4401 et seq.). A NAWCA Project shall be carried out on a cost-sharing basis among project partners in accordance with the terms of the Act. (See section 6b of this Order for more guidance on the cost sharing requirements.)

e. "Procurement" or "acquisition" means obtaining goods, property or services by purchase, lease or barter for the direct benefit or use of the Federal Government.

f. "Assistance" is legally distinguished from procurement or acquisition and is carried out using either cooperative agreements or grants. See the following definitions.

g. "Cooperative agreement" means the legal instrument reflecting a relationship between the Federal Government and a State, local government or other recipient whenever: (a) the principal purpose of the relationship is the transfer of money, property (real or personal), services, or anything of value to the recipient to accomplish a public purpose of support or stimulation authorized by Federal statute; and (b) substantial involvement between parties is anticipated during performance of the project.

h. "Grant" means the legal instrument reflecting a relationship between the Federal Government and a State, local government or other recipient whenever: (a) the principal purpose of the relationship is the transfer of money, property (real or personal), services, or anything of value to the recipient to accomplish a public purpose of support or stimulation authorized by Federal statute; and (b) no substantial involvement between parties is anticipated during performance of the project.

i. "Volunteer services." The Service shall apply the definition given at 40 U.S.C. 276d-1 to determine what are "volunteer services" for purposes of waiving the Davis-Bacon minimum wage requirements and related labor standards on Federally authorized and financed construction projects of public buildings, property, and works. (See Exhibit 1.)

Sec. 5 Policies.

a. Construction of habitat development projects on Federal lands and waters.
General Rule: Generally, construction projects on Federal lands and waters are deemed to be for the direct benefit or use of the Federal government and projects are performed either by Fish and Wildlife Service employees, by volunteers, or by contractors hired in accordance with the Federal Acquisition Regulations. NAWCA and NAWMP Projects are an exception to this general rule and may be accomplished on Federal lands and waters (and elsewhere) by using either acquisition contracts or assistance agreements.

b. Construction of habitat development projects on private lands.
General Rule: The Fish and Wildlife Service has broad authority under the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) and the Fish and Wildlife Act of 1956 (16 U.S.C. 742a - j), as amended, to enter into assistance agreements and acquisition contracts to develop the habitat of Federal trust species on private lands, provided that all of the following conditions are fulfilled and documented in every project (including NAWCA and NAWMP Projects):

(1) The developments made on private lands must be for a legitimate objective of, and for the principal benefit of, the Federal Government. The objective would be to develop the habitat of Federal trust species.

(2) The costs of the proposed developments must be reasonable, i.e., the value of what is to be achieved by the project must be at least equal to (and preferably greater than) the Federal expenditures for the developments.

(3) The transactions must comply with all applicable environmental laws, such as the National Environmental Policy Act and the Endangered Species Act, as well as other statutes which protect historic and cultural resources.

(4) The agreement or contract must include a mechanism for the recovery of Federal funds if the terms and conditions of the projects are breached by the landowner(s). The following clause satisfying this requirement shall be included in each agreement.
 

This agreement starts when fully signed and it continues for ____ years. [This first sentence may be separated from the remainder of the clause.] This agreement may be modified at any time by the mutual written consent of the parties. It may be terminated by either party upon 30 days advance written notice to the other party. However, if the Cooperator(s) terminates the agreement before its expiration, or if they should materially default on these commitments, then the Cooperator(s) agrees to reimburse the U.S. Fish and Wildlife Service prior to final termination for the pro-rated cost to the United States of all habitat improvements placed on the land through this agreement. For these purposes, the total cost to the United States is agreed to be $______.

Exhibit 3 is a sample findings and determination form for ensuring that mandatory certifications of compliance regarding conditions 1 through 3 have been met. Other documentation methods that provide the same information as this recommended form are also acceptable.

Exhibit 4 is a cooperative agreement form recommended for use in habitat development projects with private landowners. Detailed instructions for completing the agreement form are provided in the handbook on agreements, a draft edition of which has been distributed to all CGS Divisions. Regions are requested to use the title of this agreement form as the preferred name for such agreements in order to provide some needed consistency within the Service.

c. Various methods for accomplishing habitat improvement projects on private lands.

(1) Using Federal employee labor. General Rule: A cooperative agreement (Exhibit 4), plus the forms in Exhibits 2 and 3, or comparable supporting documentation, should be used to document the agreement with the landowner(s). Exception: NAWCA and NAWMP Projects may use either assistance or acquisition instruments for these types of projects.

(2) Using Federal contractors. General Rule: The Fish and Wildlife Service shall award Federal acquisition contracts to contractors for the work. Exception: NAWCA and NAWMP Projects may use either Federal assistance or Federal acquisition instruments for these types of projects. The agreement with the landowner should be documented with an assistance agreement form like Exhibit 4, plus the forms in Exhibits 2 or 3 or comparable supporting documentation.

(3) Using intermediary service organizations. General Rule: Other Federal, state, or local government agencies or private organizations may act as intermediaries for the Fish and Wildlife Service in arranging and carrying out habitat development projects with private landowners. To obtain such services from intermediaries, Federal assistance agreements shall be used, except that interagency agreements under the Economy Act (31 U.S.C. 1535) shall be used with other Federal agencies. Exception: NAWCA and NAWMP Projects may use either assistance or acquisition methods with intermediaries. Intermediaries shall be required to use the Fish and Wildlife Service planning and agreement forms when completing agreements with landowners, including the clause identified in section 5b(4) of this Order or one essentially the same, and to provide originals of all such completed forms to the Fish and Wildlife Service.

(4) Using landowner labor and/or contracts. General Rule: Federal assistance agreements like Exhibit 4, plus the forms in Exhibits 2 and 3 or comparable supporting documentation, shall be used when landowners will either do the restoration work themselves (with some guidance from Fish and Wildlife Service employees) or will hire their own contractors. Exception: NAWCA and NAWMP Projects may use either assistance or acquisition instruments for these types of projects.

In each of the four situations above, any landowner cost-sharing requirements may be met with funds, labor, materials, or other valuable contributions.

Sec. 6 Special Procedures for NAWCA and NAWMP Projects.

a. In accomplishing any of the projects described in Section 5 of this Order when the project is to be completed under the authority of NAWCA and/or NAWMP, project managers shall certify on the accompanying funding or acquisition request form that the proposed project falls under the definitions of NAWCA or NAWMP Projects as defined in this Order. Once this Order's definitions of NAWCA and NAWMP Projects are incorporated in the Fish and Wildlife Service Manual at 661 FW 1 - 4, that shall be cited on the accompanying funding or acquisition request form. Project managers may choose to implement the project through assistance awards to Fish and Wildlife Service partners (who will award the actual construction contracts) instead of using Federal acquisition contracts. However, such assistance awards may only be used if the project is carried out on a cost-sharing basis among project partners as indicated in the definitions of NAWCA and NAWMP Projects. Acquisition contracts shall be used if the cost-sharing requirements are not met.

b. Although section 4407(b) of the NAWCA allows projects on Federal lands and waters to be paid for entirely with Federal funds, a policy of the North American Wetlands Conservation Council requires non-Federal matching for all projects regardless of ownership. Therefore, the cost-sharing condition for using assistance awards will almost always be met even when the projects are on Federal lands or waters. The Council remains open, however, to receiving proposals that cannot achieve a 1:1 match due to very special circumstances and in priority areas (such as the Prairie Pothole Joint Venture). If a project on Federal lands or waters should be approved without a cost-share partner(s), then Federal Acquisition Regulation procedures and instruments apply.

c. The Davis-Bacon Act wage rates and related Department of Labor regulations including reporting, withholding, and certifying requirements apply to any Federal acquisition contract awards made under the NAWCA/NAWMP programs, but not to assistance awards under those programs. The same principle, i.e., no Davis-Bacon Act requirements for true assistance awards, applies to all Fish and Wildlife Service assistance programs at this time.

Sec. 7 Effective date. This Order is effective immediately. Its provisions will remain in effect until incorporated in the Fish and Wildlife Service Manual, or until it is amended, superseded or revoked. However, in the absence of any of the foregoing actions, the provisions of this Order will terminate and be considered obsolete on December 31, 1998.
 
 

Date: November 25, 1997