02-19065. National Coastal Wetlands Conservation Grant Program

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

This final rule establishes the requirements for participation in the National Coastal Wetlands Conservation Grant Program authorized by the Coastal Wetlands Planning, Protection and Restoration Act (Act) and provides guidance for the Program's administration by the U.S. Fish and Wildlife Service (referred to as “Service,” “we,” and “us” within this rule). It replaces interim procedures and clarifies guidance for preparation, submission, and evaluation of proposed projects and administration of funded projects.

DATES:

This rule is effective July 30, 2002.

ADDRESSES:

The complete file for this rule is available for inspection, by appointment, during normal business hours at the Division of Fish and Wildlife Management and Habitat Restoration, Fish and Wildlife Service, U.S. Department of the Interior, Room 840, 4401 North Fairfax Drive, Arlington, Virginia 22203.

FOR FURTHER INFORMATION CONTACT:

Sally Valdes-Cogliano, Division of Fish and Wildlife Management and Habitat Restoration, by telephone [phone]; fax [phone]; e-mail<[e-mail]> or Gary Reinitz, Division of Federal Aid, by telephone [phone]; fax [phone]; e-mail:[e-mail].

SUPPLEMENTARY INFORMATION:

Background

What Is the National Coastal Wetlands Conservation Grant Program?

The Coastal Wetlands Planning, Protection and Restoration Act (16 U.S.C. 3951-3956) authorizes the Director of the Service to make matching grants to coastal States for acquisition, restoration, enhancement, management, and preservation of coastal wetlands. Grants are available annually on a competitive basis to coastal States. Funding for this Program comes from the Sport Fish Restoration Account, which is supported by excise taxes on fishing equipment, and motorboat and small engine fuels.

The primary goal of the National Coastal Wetlands Conservation Grant Program is the long-term conservation of coastal wetland ecosystems. It accomplishes this goal by helping States in their efforts to protect, restore, and enhance their coastal habitats. The Program's accomplishments are primarily on-the-ground and measured in acres.

Why Protect Coastal Wetlands?

Coastal wetlands provide essential fish and wildlife habitat. Coastal ecosystems comprise less than 10 percent of the Nation's land area, but support a much higher proportion of our living resources. Specifically, coastal areas support a high percentage of our threatened and endangered species, fishery resources, migratory songbirds, and migrating and wintering waterfowl.

In addition to wildlife benefits, wetlands provide substantial flood and storm control values and can reduce the need to construct expensive flood control structures. They make an important contribution to water quality by recharging groundwater, filtering surface runoff, and treating waste, and they provide natural areas important for recreational and aesthetic purposes. Uplands associated with wetlands provide food and cover to wildlife and buffer wetlands from soil erosion and contaminants. In the coterminous United States, more than half of the estimated original 221 million acres of American wetlands have been destroyed since European settlement. The concentration of the U.S. population in coastal areas is a continuing source of development pressure on the remaining coastal wetlands.

What Has the Program Accomplished?

Since the Service began awarding grants in 1992, we have awarded about $105 million to 25 States and 1 U.S. territory to protect and/or restore about 130,000 acres of coastal wetland ecosystems. The Program's emphasis on encouraging partnerships, supporting watershed planning, and leveraging ongoing projects has helped stretch program funds. The resource benefits of this Program have included habitat protection and restoration for migratory birds, shorebirds, waterfowl, endangered and threatened species, and fish and shellfish.

Why Do We Need This Rule?

The National Coastal Wetlands Conservation Grant Program is currently being administered using internal interim program guidance and the standard grant administration policies of our Federal Aid Program. We believe administration of the Program could be improved through regulations specifically tailored to meet the needs of the Program. Accordingly, the rule uses a plain English style, provides examples to illustrate concepts, and combines current guidance in one place. It should result in a streamlined proposal preparation, review and grant administration process.

Currently, we evaluate grant requests received from the State agencies on an annual schedule. In the last few years, the number of proposals received annually by the Service National Office has ranged from 29 to 36. A review panel consisting of Service personnel representing the coastal Regions of the Service and specific program areas (for example, the Fisheries and Habitat Conservation, Endangered Species, and Refuges Programs) reviews and ranks all proposals. Based on the rankings of the panel, recommendations are sent to the Director of the Service, who makes the final determination of which projects will receive grants. The basic schedule and procedures will not change significantly with this rule.

The criteria for selecting proposals in this final rule have been modified from the interim guidance. For example, a new criterion has been added to give credit to projects that provide benefits to migratory birds. Also, we have expanded the discussion of each criterion to clarify project scoring. The changes were based on comments provided by Service personnel who have reviewed National Coastal Wetlands Conservation Grant proposals. These criteria can be found in the rule portion of this document.

Summary of Comments and Recommendations

In the proposed rule that was published August 20, 2001 (66 FR 43555), we requested that interested parties submit any comments they might have. We particularly sought comments from the affected State agencies. The comment period was from August 20, 2001, to October 4, 2001.

We received comments from nine State government agencies. These comment letters provided suggestions and comments on a wide range of topics. We have considered all the comment letters received during the comment period and have made minor changes to improve and clarify the rule in response. Summaries of the major comments or issues follow.

Issue 1: Do we need to extend the period for the development of the grant agreement?

Response: We agree that a longer period for development of the grant agreement is appropriate. Resolving all the compliance issues that need to be addressed before a grant agreement is signed can be difficult. We are revising § 84.42 so that funds allocated for a grant will be held until December 31 of the following year.

Issue 2: What is the relationship between the goals of the National Coastal Wetlands Conservation Grant program and the Long-term and Annual Performance Goals of the Service?

Response: Long-term conservation of coastal wetlands is the primary goal of the Program. The results can be quantified in terms of acres enhanced, protected, and/or restored. (See § 84.10 for the goal statement.) When States conserve their wetlands resources using this program we all achieve benefits to habitat and wildlife. The discussion of performance measures in the rule in § 84.30(a)(2)(v) has been clarified to explain where to find the Service's Long-term and Annual Performance Goals and the relationship of these goals to the Grants Program.

Issue 3: Should the annual grant schedule be changed?

Response: The schedule in the rule reflects the current operating schedule for the Grants Program. We examined the effects of moving deadlines but have decided to maintain the current schedule.

Issue 4: Is the definition of ineligible activities too restrictive? Do we need to distinguish between planning activities for stand-alone grants, and planning as a minimal part of a grant objective?

Response: The focus of this Grant Program has always been on-the-ground accomplishments—through land acquisitions, easements, restoration and enhancement activities—and its accomplishments are measured in acres. We have modified the description of ineligible activities in § 84.20(b) to clarify that planning activities of a minimal nature and necessary to complete the project could be allowable.

Issue 5: The definition of a “substantial proposal” should include that it is consistent with State and Regional watershed plans. Consistency should be encouraged and rewarded in the grant scoring process.

Response: We agree that project proposals should take into account watershed plans. One of the ranking criteria in § 84.32 is specifically designed to give credit to proposals that demonstrate the value of the proposal in connection with wider planning efforts.

Issue 6: For the purposes of this rule, how should we define maritime forests?

Response: The current definition is not intended to include all kinds of maritime forests that might be included from a strictly biological perspective. It is, instead, focused on protection of the maritime forests characteristic of the southeastern United States. This area was considered to be, when the Coastal Wetlands Planning, Protection and Restoration Act was passed, extremely beneficial in protecting the coast and also under severe development pressure.

Issue 7: Should regionally threatened wetland types be given the same priority as nationally decreasing wetland types?

Response: The Coastal Wetlands Planning, Protection and Restoration Act states that the Director of the Service should give priority to coastal wetlands conservation projects that are consistent with the National Wetlands Priority Conservation Plan developed under Section 301 of the Emergency Wetlands Resources Act (16 U.S.C. 3921). This Conservation Plan, which was published in 1991, categorized wetland types into declining, stable, and increasing. Types that were declining nationally do need to receive priority under the National Coastal Wetlands Conservation Grant Program scoring system.

We recognize that certain important wetland types can be declining regionally even if they are not declining nationally. For this reason, we included in this rule the possibility of regionally decreasing types receiving credit in the scoring system if the case for regionally declining types is well-documented (see § 84.32(a)(1)(i)).

Issue 8: How should we define long-term conservation? Should we handle restoration and acquisition differently?

Response: Long-term conservation is a requirement established by the Act for this program. This rule requires that projects provide conservation for at least 20 years. In selecting this number we looked at the requirements of other programs. For this one criterion, acquisition projects may have some advantage over restoration projects, but this is one criterion among many and we do not want to establish separate ranking criteria for acquisition and restoration.

Effective Date

This rule is effective upon publication. In accordance with 5 U.S.C. 553(d)(3), we believe that we have good cause for making this rule effective upon publication to ensure that the rule is in effect during the next funding cycle for the National Coastal Wetlands Conservation Grant Program. This rule will benefit those entities seeking grants under this Program. This rule provides helpful information to grant applicants in preparing their applications and will help ensure that the Service applies fair and consistent standards in reviewing the grant applications.

What Are the Environmental Effects of This Regulation?

This final rule is a regulation of an administrative and financial nature. Therefore, the action is categorically excluded under 516 DM 2, Appendix 1.10 from any environmental documentation pursuant to the National Environmental Policy Act (NEPA). However, subsequent actions involved with acquisition, restoration, or enhancement will require further compliance with NEPA on a case-by-case basis.

Compliance with NEPA and other environmental laws and Executive Orders such as the Endangered Species Act, Coastal Barrier Resources Act, Coastal Barrier Improvement Act, Coastal Zone Management Act, Executive Orders on Floodplains (E.O. 11988) and Wetlands (E.O. 11990), other applicable executive orders on historic/cultural resources, prime and unique farmlands, and the Clean Water Act will be satisfied before we approve grant agreements for any project.

Does This Rule Have Any Information Collection Requirements?

This rule's information collection requirements include those necessary to fulfill applicable requirements of 43 CFR part 12, and these have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et. seq.). This section of the Code of Federal Regulations provides the uniform administrative requirements for grants and cooperative agreements to States and local governments. The required forms include a grant agreement form, USFWS Form 3-1552 (OMB control number 1018-0049); an amendment to the grant agreement form, USFWS Form 3-1591 (OMB control number 1018-0049); the Federal Aid Grant Application Booklet, which was approved by OMB on January 18, 2001, (OMB control number 1018-0109); the NEPA Compliance Checklist, USFWS Form 3-2185 (OMB control number 1018-0110); and the Summary Information for Ranking National Coastal Wetlands Grant Program Proposals, USFWS Form 3-2179 (OMB Control Number 1018-0111). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

Required Determinations

Regulatory Planning and Review

In accordance with the criteria in Executive Order 12866, this rule is a significant regulatory action. OMB makes the final determination of significance under Executive Order 12866.

This rule will not have an annual effect of $100 million or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. A cost-benefit and economic analysis is not required. The entities affected by this final rule are State natural resource agencies. The primary intended effect is to augment State efforts to conserve their coastal wetland resources. The program is completely voluntary; States choose whether to submit proposals for matching grants. New funds available each year are determined as a percentage of monies received by the Sport Fish Restoration Fund. However, the total receipts for a given year for this program are limited by the Coastal Wetlands Planning, Protection and Restoration Act to $15 million. Receipts for the last few years have been in the $10 million to $13 million range. This last grant cycle included $13 million in new money and $1.5 million available as carryover from previous years.

This rule will not create inconsistencies with other agencies' actions. The Service is charged with administering the National Coastal Wetlands Conservation Program by the Coastal Wetlands Planning, Protection and Restoration Act. This Program supports and augments State efforts to conserve their resources. States voluntarily choose to participate, and no other Federal agencies have responsibilities associated with this Grant Program. Some Federal agencies have participated voluntarily on specific projects as cooperators with the State agencies.

This rule will not affect entitlements, user fees, loan programs, or the rights and obligations of their recipients. It will affect this specific grant program. The Service has been giving out matching grants to States under the National Coastal Wetlands Conservation Grant Program since 1992. If we continue to operate with interim procedures and general Federal Aid grant administration, the same amount of grant assistance will be given to coastal States. The main effect that we expect from this rulemaking is a streamlined proposal preparation and review and grant administration process.

This rule will not raise novel legal or policy issues. As stated above, the Service has been awarding grants to States and administering this Program under the authority of the Coastal Wetlands Planning, Protection and Restoration Act since 1992. However, the purpose of this new rule is to improve the process.

Regulatory Flexibility Act

This final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). By law, the only eligible recipients of this grant program are coastal State and territory government agencies. Operating with interim guidance, we have given out grants since 1992. This rule should not result in a major change to the Program. The Coastal Wetlands Planning, Protection and Restoration Act specifies an annual cap of $15 million that can be allocated to this program. An initial Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is also not required.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This final rule will not have an annual effect on the economy of $100 million or more; will not cause a major increase in costs or prices for consumers, individual industries, Federal, State or local government agencies, or geographic regions; and will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

As stated above, the maximum amount, by law, that can be directed to this Grant Program is $15 million per year. This Program is directed exclusively at State governments. This rule might provide some contracting work at a local level for restoration projects, creating a minor positive effect on the local economy. All land purchased under this Program is paid at fair market value from willing sellers. The land involved is a relatively small amount spread over the 10 to 15 States and territories that typically receive grants in a given year. All lands acquired will be put under long-term conservation protection by the States. Some of the grants are for restoration work on lands already owned by the States.

Unfunded Mandates Reform Act

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), this final rule will not significantly or uniquely affect small governments and will not produce a Federal mandate of $100 million or greater in any year, i.e., it is not a “significant regulatory action” under the Act. A Small Government Agency Plan is not required. As stated above, this rule pertains to a grant program directed at State governments. In a few cases, local governments have chosen to partner in a grant project proposed by the State. Participation in the Program is entirely voluntary. The Program income is limited to $15 million per year by the Coastal Wetlands Planning, Protection and Restoration Act.

Takings

In accordance with Executive Order 12630, this final rule does not have significant takings implications. A takings implication assessment is not required. The rule specifies that all acquisitions under this Program are from willing sellers. No private property will be taken from unwilling owners for the furtherance of this Program, and just compensation will be provided to willing owners.

Federalism

In accordance with Executive Order 13132, the final rule does not have significant Federalism effects. The rule allows eligible coastal States to make decisions regarding the selection of properties for acquisition, plan restoration projects, and take protective measures.

Civil Justice Reform

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. To the extent of our knowledge, no legal cases have ever been associated with this grant program. The rule should actually serve to reduce the possibility of litigation by establishing specific requirements for participation in the National Coastal Wetlands Conservation Grant Program and guidance for its administration by the Service. The rule will establish a clear legal standard for affected conduct.

Government-to-Government Relationship with Tribes

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and part 512, chapter 2 of the Department of the Interior Manual, we have evaluated potential effects on federally recognized Indian tribes and have determined that the effects are minimal. The Coastal Wetlands Planning, Protection and Restoration Act specifies the States that can participate in this Grant Program. The Act does not provide for grants directly to Indian tribes. Tribes have, in a few cases, participated as cooperators on projects.

Energy Supply, Distribution or Use (Executive Order 13211)

On May 18, 2001, the President issues Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this rule is a significant action under Executive Order 12866, it is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

How Does the Intergovernmental Review of Federal Programs Work?

This National Coastal Wetlands Conservation Grant Program is covered under Executive Order (Order) 12372 “Intergovernmental Review of Federal Programs” and 43 CFR Part 9 “Intergovernmental Review of Department of the Interior Programs and Activities.” Under the Order, States may design their own processes for reviewing and commenting on proposed Federal assistance under covered programs.

Coastal States and territories that have chosen to participate in the Executive Order process have established Single Points of Contact (SPOCs). Applicants from jurisdictions that do not participate do not need to take any action regarding E.O. 12372. All other applicants should alert their SPOCs early in the application process. This step will insure that applicants find out about any SPOC requirements. If you as an applicant are required to submit materials to the SPOC, indicate the date of this submittal (or the date of contact if no submittal is required) on the Standard Form 424.

List of Subjects in 50 CFR Part 84

• Coastal zone-wetlands
• Environmental protection-natural resources
• Fisheries
• Grant administration
• Grant programs-natural resources
• Intergovernmental relations
• Marine resources
• Natural resources
• Reporting and recordkeeping requirements, and Wildlife

For the reasons discussed in the supplementary information, we are amending subchapter F of chapter I, title 50 of the Code of Federal Regulations, by adding a new part 84, to read as follows:

PART 84—NATIONAL COASTAL WETLANDS CONSERVATION GRANT PROGRAM

Subpart A—General Background

84.10

What is the purpose and scope of this rule?

84.11

How does the Service define the terms used in this rule?

84.12

What are the information collection, record keeping, and reporting requirements?

Subpart B—Applying for Grants

84.20

What are the grant eligibility requirements?

84.21

How do I apply for a National Coastal Wetlands Conservation Grant?

84.22

What needs to be included in grant proposals?

Subpart C—Project Selection

84.30

How are projects selected for grants?

84.31

An overview of the ranking criteria.

84.32

What are the ranking criteria?

Subpart D—Conditions on Acceptance/Use of Federal Money

84.40

What conditions must I follow to accept Federal money?

84.41

Who prepares a grant agreement? What needs to be included?

84.42

What if a grant agreement is not signed?

84.43

How do States get the grant monies?

84.44

What is the timetable for use of grant funds?

84.45

How do I amend a proposal?

84.46

What are the cost-sharing requirements?

84.47

What are allowable costs?

84.48

What are the procedures for acquiring, maintaining, and disposing of real property?

84.49

What if the project costs more or less than originally expected?

84.50

How does a State certify compliance with Federal laws, regulations, and policies?

Authority: 16 U.S.C. 3951-3956.

Subpart A—General Background

§ 84.10

What is the purpose and scope of this rule?

The regulations in this part establish the requirements for coastal State participation in the National Coastal Wetlands Conservation Grant Program authorized by Section 305 of the Coastal Wetlands Planning, Protection and Restoration Act (Pub L. 101-646, title III; 16 U.S.C. 3954). The primary goal of the National Coastal Wetlands Conservation Grant Program is the long-term conservation of coastal wetlands ecosystems. It accomplishes this by helping States protect, restore, and enhance their coastal habitats through a competitive grants program. Results are measured in acres protected, restored, and enhanced.

§ 84.11

How does the Service define the terms used in this rule?

Terms used have the following meaning in this part:

Coastal barrier. A depositional geologic feature that is subject to wave, tidal, and wind energies; protects landward aquatic habitats from direct wave attack; and includes all associated aquatic habitats such as adjacent wetlands, marshes, estuaries, inlets, and nearshore waters. These can include islands; spits of land connected to a mainland at one end; sand bars that connect two headlands and enclose aquatic habitat; broad, sandy, dune beaches; or fringing mangroves. Coastal barriers are found on coastlines including major embayments and the Great Lakes of the United States and its territories.

Coastal Barrier Resources System. A defined set of undeveloped coastal areas, designated by the Coastal Barrier Resources Act of 1982 (Pub. L. 97-348) and the Coastal Barrier Improvement Act of 1990 (Pub. L. 101-591). Within these defined units of the System, Federal expenditures are restricted to discourage development of coastal barriers.

Coastal States. States bordering the Great Lakes (Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin); States bordering the Atlantic, Gulf (except Louisiana), and Pacific coasts (Alabama, Alaska, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Oregon, Rhode Island, South Carolina, Texas, Virginia, and Washington); and American Samoa, Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the Virgin Islands. (Louisiana is not included because it has its own wetlands conservation program authorized by the Coastal Wetlands Planning, Protection and Restoration Act and implemented by the Corps of Engineers with assistance from the State of Louisiana, the Environmental Protection Agency, and the Departments of the Interior, Agriculture, and Commerce.)

Coastal wetland ecosystems. Ecosystems that consist of multiple, interrelated coastal land features. They include wetlands in drainage basins of estuaries or coastal waters that contain saline, brackish, and nearshore waters; coastlines and adjacent lands; adjacent freshwater and intermediate wetlands that interact as an ecological unit; and river mouths and those portions of major river systems affected by tidal influence—all of which interact as an integrated ecological unit. Shorelands, dunes, nearshore islands, barrier islands and associated headlands, and freshwater wetlands within estuarine drainages are included in the definition since these interrelated features are critical to coastal fish, wildlife, and their habitats.

The definition of a coastal wetland ecosystem also applies to the Great Lakes and their watersheds, where freshwater plays a similar hydrologic role. The Great Lakes coastal wetland ecosystem is made up of multiple interrelated coastal landscape features along the Great Lakes. The Great Lakes coastal wetland ecosystem includes wetlands located adjacent to any of the Great Lakes including Lake St. Clair and connecting waters, and mouths of river or stream systems draining directly into the Great Lakes. Shorelands, dunes, offshore islands, and barrier islands and associated headlands are included in the definition since these interrelated features are critical to Great Lakes fish, wildlife, and their habitats.

Coastal Wetlands Act or Act. The Coastal Wetlands Planning, Protection and Restoration Act of 1990 (16 U.S.C. 3951-3956).

Eligible applicant. Any agency or agencies of a coastal State designated by the Governor. It is usually a State natural resource or fish and wildlife agency.

Enhancement. The manipulation of the physical, chemical, or biological characteristics of a wetland (undisturbed or degraded) site to heighten, intensify, or improve specific function(s) or to change the growth stage or composition of the vegetation present.

Fund. A fund established and used by a coastal State for acquiring coastal wetlands, other natural areas, or open spaces. The fund can be a trust fund from which the principal is not spent, or a fund derived from a dedicated recurring source of monies including, but not limited to, real estate transfer fees or taxes, cigarette taxes, tax checkoffs, or motor vehicle license plate fees.

Grant. An award of financial assistance by the Federal Government to an eligible applicant.

Long-term conservation. Protecting and restoring terrestrial and aquatic environments for at least 20 years. This includes the hydrology, water quality, and fish and wildlife that depend on these environments.

Maintenance. (These activities are ineligible under the program; the definition is included to distinguish these activities from acquisition, restoration, enhancement, and management.) Maintenance includes those activities necessary for upkeep of a facility or habitat. These activities include routine, recurring custodial maintenance such as housekeeping and minor repairs as well as the supplies, materials, and tools necessary to carry out the work. Also included is nonroutine cyclical maintenance to keep facilities or habitat improvements fully functional. Cyclical maintenance is major maintenance or renovation activities conducted at intervals normally greater than 1 year.

Management. (Includes habitat management only.) Habitat management includes vegetation manipulation and restoration of habitat to support fish and wildlife populations. Creation of wetlands where they did not previously exist is not included in the definition of management.

Maritime forest. Maritime forests are defined, for the purposes of this regulation, as broad-leaved forests that occur on barrier islands and along the mainland coast from Delaware to Texas. Examples are primarily characterized by a closed canopy of various combinations of live oak (Quercus virginiana), upland laurel oak (Quercus hemisphaerica), pignut hickory (Carya glabra), southern magnolia (Magnolia grandiflora), sugarberry (Celtis laevigata), and cabbage palm (Sabal palmetto). Shrubs and smaller trees typical of the understory include live oak, upland laurel oak, pignut hickory, red mulberry (Morus rubra), wild olive (Osmanthus americanus), American holly (Ilex opaca), yaupon (Ilex vomitoria), beautyberry (Callicarpa americana), bumelia (Sideraxylon spp.), and small-flowered pawpaw (Asimina parviflora). The herb layer is generally rich and diverse, typically including partridgeberry (Mitchella repens), coralbean (Erythrina herbacea), small-leaved milk pea (Galactia microphylla), tick trefoils (Desmodium spp.), and spikegrass (Chasmanthium sessiliflorum). Vines are represented by muscadine grape (Vitis rotundifolia), Virginia creeper (Parrhenocissus quinquefolia), and various briers (Smilax spp.).

This natural community type becomes established on old coastal dunes that have been stabilized long enough to sustain forests. In time, the accumulation of humus contributes to moisture retention of soils, while the canopy minimizes temperature fluctuations by reducing soil warming during the day and heat loss at night. Because of the underlying deep sands, maritime forests are generally well-drained.

Maritime forests have become prime resort and residential property because of their relatively protected locations along the coast. Although this community type originally occurred in virtually continuous strips along the Atlantic and Gulf Coasts, residential developments and infrastructure encroachments have severely fragmented most occurrences.

National Wetlands Inventory. A Service program that produces information on the characteristics, extent, and status of the Nation's wetlands and deepwater habitat. The program's strongest mandates come from the Emergency Wetlands Resources Act of 1986 (16 U.S.C. 3901), which directs the Service to map wetlands, conduct wetlands status and trends studies, and disseminate the information produced.

National Wetlands Priority Conservation Plan. A plan developed by the Service for the U.S. Department of the Interior at the direction of Congress through the Emergency Wetlands Resources Act of 1986 (16 U.S.C. 3901). The plan provides the criteria and guidance for identifying wetlands that warrant attention for Federal and State acquisition using Land and Water Conservation Fund appropriations.

Operations. (These activities are ineligible under the program; the definition is included to distinguish these activities from acquisition, restoration, enhancement, and management.) Operations include activities necessary for the functioning of a facility or habitat to produce desired results. These include public use management and facility management.

Program. The National Coastal Wetlands Conservation Grant Program. A program administered by the Service that awards Federal grants through a competitive process to State agencies for projects to acquire, restore, manage, or enhance coastal wetlands.

Project. One or more related activities necessary to fulfill a stated objective to provide for the long-term conservation of coastal wetlands including the lands and waters, hydrology, water quality, and wetland-dependent wildlife. These activities can include acquisition, restoration, enhancement, or management of coastal wetlands.

Restoration. The manipulation of the physical, chemical, or biological characteristics of a site with the goal of returning natural/historic functions to a former or degraded wetland.

§ 84.12

What are the information collection, record keeping, and reporting requirements?

(a) Information collection requirements include:

(1) An Application for Federal Assistance (Standard Form 424);

(2) A proposal, following the guidance of OMB Circular A-102 and the Federal Aid Grant Application Booklet (OMB Control Number 1018-0109), that includes statements of need and objective(s); a description of expected results or benefits; the approach to be used, such as procedures, schedules, key personnel and cooperators, location of the proposed action, and estimated costs to accomplish the objective(s); identification of any other actions that may relate to the grant; and a description of public involvement and interagency coordination;

(3) Discussion of ranking criteria, including a completed summary information form (USFWS Form 3-2179);

(4) Assurances of compliance with all applicable Federal laws, regulations, and policies (SF 424B or SF 424D); and

(5) Documents, as appropriate, supporting the proposal; for example, environmental assessments (including the NEPA compliance checklist, USFWS Form 3-2185) and evaluations of effects on threatened and endangered species.

(6) A grant agreement form if the proposal is selected for an award (USFWS Form 3-1552); and

(7) A grant amendment form if the agreement is modified (USFWS Form 3-1591).

(b) Record-keeping requirements include the tracking of costs and accomplishments related to the grant as required by 43 CFR 12.60, monitoring and reporting program performance (43 CFR 12.80), and financial reporting (43 CFR 12.81). The project report should include information about the acres conserved, with a breakdown by conservation method (for example, acquired, restored, or both) and type of habitat (list habitat types and include the acreage of each). Are the results of the project being monitored? Is there evidence that the resources targeted in the proposal (for example, anadromous fish, threatened and endangered species, and migratory birds) have benefited?

(c) Reporting requirements include retention and access requirements as specified in 43 CFR 12.82 and authorized by OMB through the Federal Aid Grant Application Booklet (OMB Control Number 1018-0109).

Subpart B—Applying for Grants

§ 84.20

What are the grant eligibility requirements?

(a) Eligible grant activities include:

(1) Acquisition of a real property interest in coastal lands or waters from willing sellers or partners (coastal wetlands ecosystems), providing that the terms and conditions will ensure the real property will be administered for long-term conservation.

(2) The restoration, enhancement, or management of coastal wetlands ecosystems, providing restoration, enhancement, or management will be administered for long-term conservation.

(b) Ineligible activities include but are not limited to:

(1) Projects that primarily benefit navigation, irrigation, flood control, or mariculture;

(2) Acquisition, restoration, enhancement, or management of lands to mitigate recent or pending habitat losses resulting from the actions of agencies, organizations, companies, or individuals;

(3) Creation of wetlands by humans where wetlands did not previously exist;

(4) Enforcement of fish and wildlife laws and regulations, except when necessary for the accomplishment of approved project purposes;

(5) Research;

(6) Planning as a primary project focus (planning is allowable as a minimal component of project plan development);

(7) Operations and maintenance;

(8) Acquiring and/or restoring upper portions of watersheds where benefits to the coastal wetlands ecosystem are not significant and direct; and

(9) Projects providing less than 20 years of conservation benefits.

§ 84.21

How Do I Apply for a National Coastal Wetlands Conservation Grant?

(a) Eligible applicants should submit their proposals to the appropriate Regional Director of the U.S. Fish and Wildlife Service. Proposals must be complete upon submission, and must include the information outlined in § 84.22 to be complete.

(1) Service Regional Federal Aid Offices' responsibilities for administration of this grant program include: Notifying the States of the program, its requirements, and any changes that occur; determining the State agencies designated by the Governor as eligible applicants; ensuring that only eligible applicants apply for grants; coordinating with various Service programs to ensure that sound and consistent guidance is communicated to the States; determining proposal eligibility and substantiality; and determining 75 percent match eligibility and notifying the States of approved and disapproved proposals.

(2) Service Divisions of Ecological Services in the regions and field and Fisheries and Habitat Conservation in the national office provide technical assistance and work with Federal Aid to encourage State participation in this process.

(3) Send your proposals to the appropriate Regional Offices, as follows:

Coastal states by service regions	Regional contact information
American Samoa, California, Commonwealth of the Northern Mariana Islands, Guam, Hawaii, Oregon, and Washington (Region 1)	Regional Director (Attention: Federal Aid), U.S. Fish and Wildlife Service, Eastside Federal Complex, 911 NE 11th Avenue, Portland, Oregon 97232-4181, [phone].
Texas (Region 2)	Regional Director (Attention: Federal Aid), U.S. Fish and Wildlife Service, P.O. Box 1306, 500 Gold Avenue, SW, Albuquerque, New Mexico 87103, [phone].
Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin (Region 3)	Regional Director (Attention: Federal Aid), U.S. Fish and Wildlife Service, Bishop Henry Whipple Federal Building, 1 Federal Drive, Fort Snelling, Minnesota 55111-4056, [phone].
Alabama, Florida, Georgia, Mississippi, North Carolina, Puerto Rico, South Carolina, and the Virgin Islands. Louisiana is not eligible to participate under Section 305 of 16 U.S.C. 3954, because Louisiana has its own separate program. (Region 4)	Regional Director (Attention: Federal Aid), U.S. Fish and Wildlife Service, 1875 Century Boulevard, Suite 324, Atlanta, Georgia 30345, [phone].
Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Virginia (Region 5)	Regional Director (Attention: Federal Aid), U.S. Fish and Wildlife Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035-9589, [phone].
Alaska (Region 7)	Regional Director (Attention: Federal Aid), U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, Alaska 99503, [phone].

(b) The Program operates on an annual cycle. Regional Federal Aid Offices request proposals from the States in early April. Proposals must be received by the Regional Director on or before a due date set in early June in order to be considered for funding in the following fiscal year. Check with your Regional Office each year for the exact due dates. Regions review proposals for eligibility and substantiality. Regions may rank eligible and substantial proposals and submit them to the national office of the Service in Washington, DC, by a date set in late June. A Review Panel coordinated by the Service's National Office of Fisheries and Habitat Conservation reviews and ranks proposals in early August using the criteria established in this rule. The Director selects the proposals and announces the grant recipients at the beginning of the new fiscal year (October 1).

(c) More than one agency in a State may submit proposals to the Service if the Governor determines that more than one agency has responsibility for coastal wetlands.

(d) A project proposal that includes several separate and distinct phases may be submitted in phases, but any succeeding phases must compete against other proposals in the year submitted. Obtaining money for one phase of a project will not be contingent upon acquiring money for another phase of that same project.

(e) The Federal (Program) share will not exceed $1 million per project.

(f) The percentage of non-Federal match (cash or in-kind) must not be less than 25 percent of the total costs if the State has a designated fund or not less than 50 percent without a fund.

§ 84.22

What needs to be included in grant proposals?

Proposals must include the following:

(a) Application for Federal Assistance (Standard Form 424);

(b) A Statement of Assurances of compliance with applicable Federal laws, regulations, and policies (either Standard Form 424B or 424D); and

(c) A project statement that identifies and describes:

(1) The need within the purposes of the Act;

(2) Discrete, quantifiable, and verifiable objective(s) to be accomplished during a specified time period;

(3) Expected results or benefits, in terms of coastal lands and waters, the hydrology, water quality, or fish and wildlife dependent on the wetlands;

(4) The approach to be used in meeting the objectives, including specific procedures, schedules, key personnel, and cooperators;

(5) A project location, including two maps: A map of the State showing the general location of the proposal, and a map of the project site;

(6) Estimated costs to attain the objective(s) (the various activities or components of each project should be broken down by cost and by cooperator);

(7) If the request is more than $100,000 (Federal share), the applicant must submit a Form DI-2010, certifying that the grant money will not be used for lobbying activities;

(8) A concise statement, with documentation, of how the proposal addresses each of the 13 numeric criteria including a summary using FWS Form No. 3-2179 (see § 84.32);

(9) A description of the State trust fund that supports a request for a 75 percent Federal share in sufficient detail for the Service to make an eligibility determination, or a statement that eligibility has been previously approved and no change has occurred in the fund;

(10) A list of other current coastal acquisition, restoration, enhancement, and management actions; agency(ies) involved; relationship to the proposed grant; and how the proposal fits into comprehensive natural resource plans for the area, if any; and

(11) Public involvement or interagency coordination on coastal wetlands conservation projects that has occurred or is planned that relates to this proposal (Specify the organizations or agencies involved and dates of involvement.).

Subpart C—Project Selection

§ 84.30

How are projects selected for grants?

Project selection is a three-step process: proposal acceptance, proposal ranking, and proposal selection.

(a) Proposal acceptance. (1) The Regional Federal Aid Offices decide whether a proposal should be accepted for consideration by determining if the proposal is complete, substantial, and contains activities that are eligible. Proposals that do not qualify are immediately returned to the State. Revision and resubmission of returned proposals is allowable during this period, which is in June (check with your Regional Office for the exact dates each year). If any of the factors of completeness, substantiality, or eligibility are not met, the Regions should not forward the proposal to the Washington Office.

(2) To be considered for acceptance, the proposal must be substantial in character and design. A substantial proposal is one that:

(i) Identifies and describes a need within the purposes of the Act;

(ii) Identifies the objective to be accomplished based on the stated need;

(iii) Uses accepted principles, sound design, and appropriate procedures;

(iv) Provides public conservation benefits that are cost effective and long-term, i.e., at least 20 years; and

(v) Identifies obtainable, quantified performance measures (acres enhanced, restored, or protected) that help achieve the management goals and objectives of the National Coastal Wetlands Conservation Grant Program. Through this program, the States' efforts and leadership will help the Service meet its Long-Term and Annual Performance Goals as expressed in the Service's Annual Performance Plan.^[1]

(3) The grant limit is $1 million. Proposals requesting Program awards that exceed $1 million will be returned to the appropriate State. Similarly, individual projects that have clearly been divided into multiple proposals for submission in one grant cycle to avoid this limit will be returned to the appropriate State. The State can revise and resubmit the proposal so that the request does not exceed the $1 million limit.

(b) Proposal ranking. Once a proposal is accepted by the Region, the Regional Federal Aid Office sends the proposal to the National Federal Aid Office, which works with the National Office of the Fish and Wildlife Management and Habitat Restoration Program for distribution to a Review Panel. The Review Panel includes representation from our coastal Regions and from other Service Programs, for example, the Endangered Species Program. The Fisheries and Habitat Conservation Program is responsible for coordinating the review and ranking of proposals according to the established criteria, a process that usually involves a national meeting.

(c) Proposal selection. The Review Panel's recommendations are forwarded to the Director of the Service for a final review and project selection. The Director announces the selection by October 1.

§ 84.31

An overview of the ranking criteria.

(a) The primary objective of the proposal will be to acquire, restore, enhance, or manage coastal wetlands to benefit coastal wetlands and the hydrology, water quality, and fish and wildlife dependent upon them. The Program will not provide grants, for example, for construction or repair of boat ramps or docks for recreational purposes and construction or support of research facilities or activities. The purpose of the ranking criteria is to provide a means for selecting the best projects—those that produce the maximum benefits to coastal wetlands and the fish and wildlife that depend on them.

(b) Proposal ranking factors. (1) Ranking criteria. As explained in § 84.32, we will evaluate proposals according to 13 ranking criteria. These criteria have varying point values. Proposals must address each of these 13 criteria.

(2) Additional considerations. Even though the criteria provide the primary evaluation of proposals, we may factor additional considerations into the ranking decision at the national level. In case of a tie, we will use these additional considerations to rank proposals having identical scores.

(c) The criteria in § 84.32 are not listed in priority order.

(d) Points are assigned on the basis of a completed project, rather than current conditions, e.g., count 50 acres of estuarine emergent wetlands if 50 acres of that habitat type will be restored when the project is completed.

(e) A range of points rather than a set point value allows the reviewer to distinguish between, for example, a proposal that provides some foraging habitat for a threatened species versus one that provides critical nesting habitat of several endangered species. Scoring guidance is included with the individual criteria.

(f) A total of 64 points is possible under the scoring system.

(g) If a grant proposal is not selected, the State may resubmit it for reconsideration in subsequent fiscal years. Resubmission of a grant proposal is the responsibility of the applicant.

§ 84.32

What are the ranking criteria?

(a) The U.S. Fish and Wildlife Service will rank proposals using the 13 criteria listed below. In the following list, a description of each criterion is followed by examples and the points they would receive for that criterion.

(1) Wetlands conservation. Will the project reverse coastal wetland loss or habitat degradation in decreasing or stable coastal wetland types? Will it conserve wetlands to prevent losses of decreasing or stable wetland types? (Maximum: 7 points)

(i) The majority of the project area (over 50 percent) is nationally decreasing coastal wetland types,^[2] or the majority is regionally decreasing wetlands types in which the case for regionally decreasing is well-documented (Up to 7 points). The nationally decreasing types are estuarine intertidal emergent; estuarine intertidal forested; estuarine intertidal scrub-shrub; marine intertidal; palustrine emergent; palustrine forested; and palustrine scrub-shrub. Describe the wetlands using terms listed above. Include a breakdown showing the percentage of the proposal's total and wetland acreage in decreasing types. Provide National Wetlands Inventory codes/information if available. Information about these can be found on the National Wetland Inventory's web site at http://wetlands.fws.gov.

(ii) The majority of the project area (over 50 percent) is nationally stable coastal wetlands types ² (Up to 5 points). The nationally stable types are estuarine intertidal non-vegetated and estuarine subtidal. Describe the wetlands using the terms listed above. Include a breakdown showing the percentage of the proposal's total and wetland acreage in stable types. Provide National Wetlands Inventory codes/information if available.

(iii) Wetlands benefited are less than 50 percent of the project area. (Up to 3 points)

(iv) If the project would benefit wetlands in the upper portion of the coastal watershed, but does not demonstrate significant and direct benefits to coastal wetlands, the proposal will not receive any points. (0 points)

(v) We will award a full 7 points to proposals that document that over 50 percent of their project area would be, upon project completion, decreasing coastal wetland types. A combination of decreasing and stable types that is over 50 percent of the project area could receive an intermediate score of 4, 5, or 6 points, depending on the balance between decreasing and stable types. If wetlands are 50 percent or less of the project area, use the following guide for allocating points: 25 to 50 percent of the project area is decreasing or stable wetlands, 2, 3, or 4 points; 5 to 24 percent, 1 or 2 points; and less than 5 percent, 0 points.

(2) Maritime forests on coastal barriers. Will the proposal significantly benefit maritime forests on coastal barriers? The coastal barrier does not need to be a unit of the Coastal Barrier Resources System. (Maximum: 7 points)

(i) The proposal documents significant benefit to maritime forests on a coastal barrier. Describe the forest in sufficient detail so reviewers can determine whether it meets the definition of “maritime forest.” (Up to 7 points)

(ii) The proposal does not benefit maritime forests on a coastal barrier. (0 points)

(iii) For this criterion most scores should be either 0 or 7. If questions arise about the significance of the benefit or whether the forests meet the strict definition, an intermediate score could be given.

(3) Long-term conservation. Does the project ensure long-term conservation of coastal wetland functions? The project must provide at least 20 years of conservation benefits to be eligible. (Maximum: 7 points)

(i) Once the project is complete, the project will provide continuing coastal wetlands benefits in perpetuity (100 years or longer). (7 points)

(ii) Once the project is complete, the project will provide continuing coastal wetland benefits for 50-99 years. (3 to 6 points)

(iii) Once the project is complete, the proposal will provide continuing coastal wetlands benefits for 20-49 years. (1 to 3 points)

(iv) The proposal should show how the project will be maintained and the benefits sustained over time. Proposals must include adequate documentation of long-term conservation of coastal wetland values, such as a 25-year easement, to receive points for this criterion. If part of the project's benefits will be perpetual (owned in fee title, for example) and part is estimated to last 20 years, reviewers should weigh the different elements of the project and give an intermediate score.

(4) Coastal watershed management. Would the completed project help accomplish the natural resource goals and objectives of one or more formal, ongoing coastal ecosystem or coastal watershed management plan(s) or effort(s)? Describe the management plan or effort(s). (Maximum: 3 points)

(i) The project supports the natural resource goals of identified formal, ongoing coastal ecosystem or coastal watershed management plans or efforts. Describe the management plan(s) and/or effort(s) and explain how this project relates to its objectives. A plan that very specifically identifies the site will receive more points than a plan containing many generic references. (Up to 3 points)

(ii) The project does not support the natural resource goals and objectives of a formal, ongoing coastal ecosystem or coastal watershed management effort. If the proposal benefits the upper portions of coastal watersheds, but provides no significant and direct benefits to the coastal wetlands ecosystems, the proposal will not receive points. (0 points)

(5) Conservation of threatened and endangered species. Will the project benefit any federally listed endangered or threatened species, species proposed for Federal listing, recently delisted species, or designated or proposed critical habitat in coastal wetlands? Will it benefit State-listed threatened and endangered species? (Maximum: 5 points)

(i) The project will provide, restore, or enhance important habitat (e.g., nesting, breeding, feeding, nursery areas) for federally listed or proposed endangered or threatened species that use the coastal area project site for at least part of their life cycle. The project will benefit recently delisted species and habitat conservation plans developed under the auspices of the Endangered Species Act. List the species and their status (e.g., threatened or endangered) and provide documentation (e.g., cite recovery plan, attach letter from species expert) of current or recent species occurrence in the coastal area project site. Describe the importance of the habitat. (Up to 5 points)

(ii) The project will provide, restore, or enhance important habitat for State-listed threatened and endangered species. (Up to 2 points)

(iii) The project will not provide, restore, or enhance important habitat for federally or State-listed or proposed endangered or threatened species in the coastal area project site for any part of their life cycle. If the proposal provides benefits to threatened and endangered species in the upper portion of the coastal watershed, but provides no significant and direct benefits to threatened and endangered species using coastal wetlands ecosystem habitat, the proposal will not receive any points. (0 points)

(iv) The combined scores of subparagraphs (a)(5)(i) and (a)(5)(ii) of this section cannot exceed the 5-point maximum.

(6) Benefits to fish. Will the project provide, restore, or enhance important fisheries habitat? (Maximum: 5 points)

(i) The project will provide, restore, or enhance important habitat (i.e., spawning, nursery, juvenile, or foraging habitat) for specific species that use the coastal area project site for at least part of their life cycle. These species may include anadromous, interjurisdictional, or other important species. List species, habitat types, and benefits to each species. (Up to 5 points)

(ii) The project does not document current or future benefits to fish species and their habitat. (0 points)

(iii) The more specific the information is on the use of the area and the importance of the habitat, the greater the points. An area specifically identified as critical for conservation in a fisheries management plan will, for example, receive more points than one which is not.

(7) Benefits to coastal-dependent or migratory birds. Will the project provide, restore, or enhance important habitat for coastal-dependent or migratory birds?

(i) The project will provide, restore, or enhance important habitat (i.e., breeding, staging, foraging, wintering/summering habitat) benefits for at least part of the life cycle of coastal dependent or migratory birds. List the species and habitat types, and describe the benefits to each. (Up to 5 points)

(ii) The project will not significantly benefit coastal-dependent or migratory birds. (0 points)

(iii) We will give maximum points to projects that benefit coastal-dependent species identified in the North American Waterfowl Plan or listed as species of management concern.^[3] Proposals should also include information that demonstrates how the project will contribute to the regional goals developed under the U.S. Shorebird Conservation Plan, the North American Waterbird Conservation Plan, Partners in Flight, the North American Waterfowl Management Plan, or other bird conservation initiatives. Proposals that fail to do so will not receive maximum points. Indicate if the proposed area has been specifically identified by any program or agency for its migratory bird values.

(8) Prevent or reduce contamination. Will the project prevent or reduce input of contaminants to the coastal wetlands and associated coastal waters, or restore coastal wetlands and other associated coastal waters that are already contaminated? (Maximum: 5 points)

(i) The project will prevent significant inputs of contaminants or will provide significant improvements to the quality of the coastal wetland and associated waters through protection from contaminants or restoration, including assimilation of nutrients and nonpersistent toxic substances. Describe the types and sources of possible or current impairment to the coastal wetland and other associated coastal waters (e.g., to water quality, sediments, flora, or fauna). Describe how contaminant inputs or residues will be prevented, reduced, or eliminated. Preventing contaminants by precluding residential development through acquisition will not normally warrant full points unless the applicant can be shown that significant contamination would have occurred otherwise. (Up to 5 points)

(ii) The proposal will not significantly prevent impairment or improve the quality of the coastal wetland and associated coastal waters. If the proposal provides positive water quality benefits in the upper portions of watersheds, but provides no significant and direct positive water quality benefits to coastal wetland ecosystems, the proposal will not receive points. (0 points)

(iii) Show direct links between contamination and wildlife and aquatic habitats. To receive full points, you should provide documentation of the linkage. Reviewers may consider the extent of contaminants prevention/reduction when assigning points. Proposals having the potential to produce an attractive nuisance (e.g., acquiring and/or restoring a wetland that will be attractive to wildlife and that also has the potential to accumulate high levels of persistent toxic metals or hydrocarbon compounds) will not receive points.

(9) Catalyst for future conservation. Is the project proposal designed to leverage other ongoing coastal wetlands protection projects in the area, such as acquisition of areas to add to already acquired coastal lands, or provide impetus for additional restoration? (Maximum: 4 points)

(i) The project will be essential (e.g., key to completion or implementation of a greater conservation plan) to further advance or promote other coastal projects under way. Explain why. (Up to 4 points)

(ii) The project proposal does not demonstrate a positive impact on other coastal projects. (0 points)

(iii) To receive the maximum number of points, the proposal should be essential to the initiation or completion of a larger project. Examples may include acquisition of key in-holdings within a larger protected area, funds necessary to acquire fee simple interest in properties where a conservation easement has already been secured, and funds necessary to complete restoration activities to a protected area.

(10) Partners in conservation. Will the proposal receive financial support, including in-kind match, from private, local, or other Federal interests? (Maximum: 4 points)

(i) The proposal includes the State applicant plus one or more non-State financial partners. (Up to 4 points)

(ii) The proposal includes only financial support from the State applicant. (0 points)

(iii) A written description of commitment of funds or in-kind match from the partners must accompany the proposal. (This requirement is in addition to signing the Assurances Form.) The purpose of this criterion is to promote partnerships with private, local, or other Federal agencies rather than to increase the dollar amount of the matching share. Therefore, no specific minimum amount is indicated here. At least two partners, in addition to the State applicant, should have committed money to the project to receive maximum points.

(11) Federal share reduced. Does the proposal significantly reduce the Federal share by providing more than the required match amount? In the case of a Territory or Commonwealth that does not require match funds, does the proposal include financial support from sources other than the Territory or Commonwealth? (Maximum: 5 points)

(i) The State, territory, or commonwealth applicant must have a non-Federal funding source (in-kind match does not count for this criterion) that reduces the Federal share. (Up to 5 points)

(ii) The maximum Federal share is requested by the proposal. (0 points)

(iii) The purpose of this criterion is to increase the amount of money from non-Federal sources. This increase decreases the need for Federal match dollars, so that Federal dollars can help more projects. Documentation of each partner's financial commitment must accompany the proposal to receive points. If the State itself provides the excess match, the State should receive credit for reducing the Federal share. Each 5 percent above the required State match would be approximately equal to 1 point. The following two examples, using both a 50 and 75 percent Federal match share, define a 10 percent increase in a State's match amount.

(A) Example 1-50—Percent Federal Match

If the total project costs are $100,000, then the required State match share is $50,000.

If the State or a partner provides an additional cash contribution equal to 10 percent of the $50,000, $5,000. This is defined as a 10 percent increase in the State match.^[4]

(B) Example 2-75—Percent Federal Match

If the total project costs are $100,000, then the required State match share is $25,000.

If the State or a partner provides an additional cash contribution equal to 10 percent of the $25,000, $2,500. This is defined as a 10 percent increase in the State match.⁴

(12) Education/outreach program or wildlife-oriented recreation. Is the project designed to increase environmental awareness and develop support for coastal wetlands conservation? Does it provide recreational opportunities that are consistent with the conservation goals of the site? (Maximum: 3 points)

(i) The proposal includes a site-specific, substantive education/outreach or wildlife-oriented recreation program. (Up to 3 points)

(ii) The proposal does not include a substantive education/outreach or wildlife-oriented recreation program. (0 points)

(iii) The proposal must describe what makes this program substantive and link it closely with the specific site to receive full points. Programs supported by activities or funds from partners should be encouraged over use of project dollars. Project proposals may include substantive education/outreach components necessary for the completion of the project. However, these should be activities that complement or support the primary goal of the project.

(13) Other factors. Do any other factors, not covered in the previous criteria, make this project or site particularly unique and valuable? Does the project offer important benefits that are not reflected in the other criteria? The following list includes examples of projects that provide benefits not reflected in other criteria. (Maximum: 4 points)

(i) The project might provide significant benefits to, for example: rare or threatened habitat types; biodiverse habitats; rare and declining species; and the local community.

(ii) The project would be particularly cost-effective, providing very significant resource benefits for the cost.

(iii) The project would assist in the prevention or control of invasive species.

(iv) The project would provide important cultural or historical resource benefits.

(v) The project would provide other benefits.

(vi) Reviewers should not assign points to resource values covered by other criteria. The proposal should provide a short narrative to support claims to Other Factors points.

(b) Additional considerations. We will factor the following considerations into the ranking process if two or more proposals have the same point totals. The tie-breaking factors are as follows:

(1) The project would prevent the destruction or degradation of habitat from pending sale of property, from adverse effects of current activities such as draining of wetlands, or from natural processes such as erosion at excessive rates;

(2) The project would protect unique and significant biological diversity;

(3) The project has lower costs per acre conserved; and

(4) In the project proposal the State or third party provides lands as opposed to using lands already owned by the State or third party as part of the State matching share.

(c) All proposals must include the information described in paragraphs (b) (1)-(4) of this section. If a tie occurs between two or more proposals, the reviewers need to have this information available immediately to decide which proposal or proposals should be recommended for selection.

Subpart D—Conditions on Acceptance/Use of Federal Money

§ 84.40

What conditions must I follow to accept Federal grant money?

(a) The audit requirements for State and local governments (43 CFR part 12), and

(b) The uniform administrative requirements for grants and cooperative agreements with State and local governments (43 CFR part 12).

§ 84.41

Who prepares a grant agreement? What needs to be included?

The coastal State and the Fish and Wildlife Service work together to develop a Grant Agreement (Form 3-1552) upon completion of the review by the Regional Director to determine compliance with applicable Federal laws and regulations. The Grant Agreement includes the grant title, the grant cost distribution, the agreement period, other grant provisions, and special grant conditions. If a Coastal Barrier Unit is affected, the Service must conduct internal consultations pursuant to Section 6 of the Coastal Barrier Resources Act, as amended by the Coastal Barrier Improvement Act, prior to providing any grant monies to that State.

§ 84.42

What if a grant agreement is not signed?

Monies that have been allocated for a grant will be held until December 31 of the following year. If a grant agreement has not been signed by the State and the Service and, therefore, the money has not been obligated for the approved grant by that date, the funds automatically are returned to the Program account in Washington.

§ 84.43

How do States get the grant monies?

Funding to States is provided on a reimbursable basis. See § 84.47 for information on what costs can be reimbursed. The Service may reimburse the State for projects completed, or make payments as the project progresses. For construction work and labor, the Service and the State may jointly determine, on a case-by-case basis, that payments may be made in advance. We will minimize the time elapsing between the transfer to the State and the State's need for the funds, and the time period will be subject to a specific determined need for the funds in advance. Except for extenuating circumstances, a reasonable time period to advance funds to a State is up to 3 days. OMB Circular A-102, Parts II and III, 43 CFR part 12, and 31 CFR part 205 provide specific information on methods and procedures for transferring funds.

§ 84.44

What is the timetable for the use of grant money?

Once money is granted to the coastal States, the money is available to those States for the time designated in the grant agreement. If a State needs more time, the State must apply for an extension of time by amending the grant agreement. If the Service does not extend the time, the unobligated monies return to the Service for expenditure on future grants. Also, if a State cannot spend the money on the approved project, the State must notify the appropriate Regional Director as soon as possible so that the money can revert back to the Service for future grants.

§ 84.45

How do I amend a proposal?

Following procedures in 43 CFR 12.70, you must submit a signed original and two copies of the revised SF 424, the revised portion of the project statement if appropriate, and an explanation of the reason for the revision to the Regional Director (Federal Aid).

§ 84.46

What are the cost-sharing requirements?

(a) Except for certain insular areas, the Federal share of an approved grant will not exceed 50 percent of approved costs incurred. However, the Federal share may be increased to 75 percent for coastal States that have established and are using a fund as defined in § 84.11. The Regions must certify the eligibility of the fund in order for the State to qualify for the 75 percent matching share.

(b) The following insular areas: American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the U.S. Virgin Islands, have been exempted from the matching share, as provided in Pub. L. 95-134, amended by Pub. L. 95-348, Pub. L. 96-205, Pub. L. 98-213, and Pub. L. 98-454 (48 U.S.C. 1469a). Puerto Rico is not exempt from the match requirements of this Program.

(c) The State may provide materials (e.g., heavy equipment) or other services as a noncash match for portions of the State's matching share. The State may also provide the value of land, including the land proposed for restoration, enhancement, or management as a noncash match, provided that the land is necessary and reasonable for completing the project. For example, if a State proposes to manage a contiguous wetland of 100 acres, and already owns 10 of the 100 acres, the State can apply the current value of the 10 acres, provided that the 10 acres are necessary to manage the entire 100 acres. If the 10-acre wetland were not contiguous and no connection could be made that the 10 acres were needed to manage the proposed wetland, the State could not use the 10 acres as a noncash match. Review 43 CFR 12.64 for determining the value of in-kind contributions.

(d) The requirements in 43 CFR 12.64 and Service Manual Part 522 FW 1.13 ^[5] apply to in-kind matches or cost-sharing involving third parties. Third party in-kind contributions must represent the current market value of noncash contributions furnished as part of the grant by another public agency, private organization, or individual. In-kind matches must be necessary and reasonable to accomplish grant objectives.

(e) Coastal States must commit to their matching share of the total costs by signing the Application for Federal Assistance (SF 424), the Assurances (SF 424B or SF 424D), and the Grant Agreement (Form 3-1552).

(f) No Federal monies, non-Federal monies, in-kind contributions, or National Fish and Wildlife Foundation grant program monies that will be or have been previously used to satisfy the matching requirement of another Federal grant can be used as part of the coastal State's matching share.

(g) The coastal State is responsible for ensuring the full amount of that State's matching requirement, either with State funds or from contributions toward the proposal from other agencies, groups, or individuals. Sources other than State applicant funds must be documented and approved as eligible.

(h) Total Federal contributions (including all Federal sources outside of the Program) may not exceed the maximum eligible Federal share under the Program. This includes monies provided to the State by other Federal programs. If the amount of Federal money available to the project is more than the maximum allowed, we will reduce the Program contribution by the amount in excess.

(i) Natural Resource Damage Assessment funds that are managed by a non-Federal trustee are considered to be non-Federal, even if these monies were once deposited in the Department of the Interior's Natural Resource Damage Assessment and Restoration Fund, provided the following criteria are met:

(1) The monies were deposited pursuant to a joint and indivisible recovery by the Department of the Interior and non-Federal trustees under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) or the Oil Pollution Act (OPA);

(2) The non-Federal trustee has joint and binding control over the funds;

(3) The co-trustees agree that monies from the fund should be available to the non-Federal trustee and can be used as a non-Federal match to support a project consistent with the settlement agreement, CERCLA, and OPA; and

(4) The monies have been transferred to the non-Federal trustee.

§ 84.47

What are allowable costs?

(a) Allowable grant costs are limited to costs necessary and reasonable to achieve approved grant objectives and meet the applicable Federal cost principles in 43 CFR 12.62 (b).

(b) If a project or facility is designed to include purposes other than those eligible under the Act, the costs must be prorated among the various purposes.

(c) If you incur costs before the effective date of the grant, they cannot be reimbursed, with the exception that we can allow preliminary costs, but only with the approval of the appropriate Regional Director. Preliminary costs may include costs necessary for preparing the grant proposal, such as feasibility surveys, engineering design, biological reconnaissance, appraisals, or preparation of grant documents such as environmental assessments for compliance with the National Environmental Policy Act.

§ 84.48

What are the procedures for acquiring, maintaining, and disposing of real property?

(a) Acquisition, maintenance, and disposal of real property must follow the rules established in 43 CFR 12.71 and 50 CFR 80.14.

(1) Title to real property acquired under a grant or subgrant must be vested in the State or subgrantee, including local governments and nonprofit organizations. States must submit documentation (e.g., appraisals and appraisal reviews) to the Regional Director who must approve it before the State becomes legally obligated for the purchase. States will provide title vesting evidence and summary of land costs upon completion of the acquisition. The grant agreement and any deed to third parties (e.g., conservation easement or other lien on a third-party property) must include appropriate language to ensure that the lands and/or interests would revert back to the State or Federal Government if the conditions of the grant were no longer being implemented.

(2) In cases where the interest obtained is less than fee simple title, the interest must be sufficient for long-term conservation of the specified wetlands resources.

(3) Real property acquired with National Coastal Wetlands Conservation Grant funds must continue to serve the purpose for which it was acquired. If acquired property is used for reasons inconsistent with the purpose(s) for which acquired, such activities must cease and any adverse effects on the property must be corrected by the State or subgrantee with non-Federal monies in accordance with 50 CFR 80.14.

(4) The State or subgrantee may not dispose of or encumber its title or other interest in real property without prior approval of the appropriate Regional Director of the Service. Real property includes, but is not limited to, lands, buildings, minerals, energy resources, timber, grazing, and animal products. If real property is sold, the State or subgrantee must compensate the Service in accordance with 43 CFR 12.71(c)(2).

(5) If rights or interests obtained with the acquisition of coastal wetlands generate revenue during the Grant Agreement period, the State will treat the revenue as program income and use it to manage the acquired properties. If the State sells or leases real property, the State must treat the proceeds as program income and return the money to the Federal Aid program regardless of the grant period.

(6) Inconsistent use that is not corrected can be grounds for denying a State future grants under this Program.

(b) A coastal State is responsible for design, supervision, and inspection of all major construction projects in accordance with accepted engineering standards.

(1) The coastal State must have adequate rights to lands or waters where restoration or enhancement projects are planned to ensure protection and use of the facilities or structures throughout their useful life.

(2) The construction, enlargement, or rehabilitation of dams are subject to Federal standards for dam design. If requested, the State must provide to the Regional Office written certification that any proposed changes to a dam meet Federal standards.

(3) The coastal State must operate and maintain facilities, structures, or related assets to ensure their use for the stated project purpose and that they are adequately protected.

(c) Acquisition, property records, maintenance, and disposal of equipment must be made in accordance with 43 CFR 12.72.

§ 84.49

What if the project costs more or less than originally expected?

All requests for additional monies for approved coastal wetland grants will be subject to the entire review process along with new grants. Any monies left over after the project is complete, or if the project is not completed, should be returned to the Washington Office for use in following years. If a State has lands it wishes to acquire, restore, or enhance in close proximity to the original project, and the Region deems that spending project monies in these areas would provide similar benefits, the Region may use unspent balances to pay for these projects with prior approval from the Washington Office. States must provide adequate justification and documentation to the Regions that the lands acquired, restored, or enhanced are similar to those in the original proposal and provide similar benefits to fish and wildlife.

§ 84.50

How does a State certify compliance with Federal laws, regulations, and policies?

(a) In accepting Federal money, coastal State representatives must agree to and certify compliance with all applicable Federal laws, regulations, and policies. The applicant will need to submit a Statement of Assurances (either SF 424B or SF 424D) signed and dated by an authorized agency representative as part of the proposal.

(b) Compliance with environmental and other laws, as defined in the Service Manual 523 FW Chapter 1,^[6] may require additional documentation. Consult with Regional Offices for how this applies to a specific project.

Dated: March 29, 2002.

Paul Hoffman,

Acting Assistant Secretary for Fish and Wildlife and Parks.

Footnotes

1.  The Service's Annual Performance Plan can be found on the Service's homepage at http://www/​/.fws.gov/​r9gpra. For more information you might also contact the Budget Office at 202-208-4596 or the Planning and Evaluation Staff at 202-208-2549.

2.  These designations are based on the National Wetlands Priority Conservation Plan. For more information about the plan, or to receive a copy of the document, refer to the contact information provided in § 84.21.

3.  For more information about species of management concern, visit the website migratorybirds.fws.gov or contact the Division of Migratory Bird Management at 703-358-1714.

4.  From sources other than Federal agencies. Natural Resource Damage Assessment funds may in some cases be defined as “non-Federal.” See discussion under § 84.46 on What are the cost-sharing requirements?

5.  From the Fish and Wildlife Service Manual, available on-line at http://www.fws.gov/​directives/​index.html.

6.  The Fish and Wildlife Service Manual, see footnote 3 for availability.