33 U.S.C. § 2903 — Estuary habitat restoration program

Page 922 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2903 (Pub. L. 106–457, title I, § 103, Nov. 7, 2000, 114 Stat. 1958; Pub. L. 110–114, title V, § 5017(b), Nov. 8, 2007, 121 Stat. 1197.) Editorial Notes REFERENCES IN TEXT The Coastal Zone Management Act of 1972, referred to in pars. (2) and (6)(B)(iii), is title III of Pub. L. 89–454 as added by Pub. L. 92–583, Oct. 27, 1972, 86 Stat. 1280, as amended, which is classified generally to chapter 33 (§ 1451 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1451 of Title 16 and Tables. AMENDMENTS 2007—Par. (6)(A). Pub. L. 110–114 substituted ‘‘Federal, State, or regional’’ for ‘‘Federal or State’’. § 2903. Estuary habitat restoration program (a) Establishment There is established an estuary habitat res- toration program under which the Secretary may carry out estuary habitat restoration projects and provide technical assistance through the award of contracts and cooperative agreements in accordance with the requirements of this chapter. (b) Origin of projects A proposed estuary habitat restoration project shall originate from a non-Federal interest con- sistent with State or local laws. (c) Selection of projects (1) In general The Secretary shall select estuary habitat restoration projects from a list of project pro- posals submitted by the Estuary Habitat Res- toration Council under section 2904(b) of this title. (2) Required elements Each estuary habitat restoration project se- lected by the Secretary must— (A) address restoration needs identified in an estuary habitat restoration plan; (B) be consistent with the estuary habitat restoration strategy developed under section 2905 of this title; (C) include a monitoring plan that is con- sistent with standards for monitoring devel- oped under section 2906 of this title to ensure that short-term and long-term restoration goals are achieved; and (D) include satisfactory assurance from the non-Federal interests proposing the project that the non-Federal interests will have adequate personnel, funding, and au- thority to carry out items of local coopera- tion and properly maintain the project. (3) Factors for selection of projects In selecting an estuary habitat restoration project, the Secretary shall consider the fol- lowing factors: (A) Whether the project is part of an ap- proved Federal or State estuary manage- ment or habitat restoration plan. (B) The technical feasibility of the project. (C) The scientific merit of the project. (D) Whether the project will encourage in- creased coordination and cooperation among Federal, State, and local government agen- cies. (E) Whether the project fosters public-pri- vate partnerships and uses Federal resources to encourage increased private sector in- volvement, including consideration of the amount of private funds or in-kind contribu- tions for an estuary habitat restoration ac- tivity. (F) Whether the project is cost-effective. (G) Whether the State in which the non- Federal interest is proposing the project has a dedicated source of funding to acquire or restore estuary habitat, natural areas, and open spaces for the benefit of estuary habi- tat restoration or protection. (H) Other factors that the Secretary deter- mines to be reasonable and necessary for consideration. (4) Priority In selecting estuary habitat restoration projects to be carried out under this chapter, the Secretary shall give priority consideration to a project if, in addition to meriting selec- tion based on the factors under paragraph (3)— (A) the project occurs within a watershed in which there is a program being carried out that addresses sources of pollution and other activities that otherwise would re-im- pair the restored habitat; or (B) the project includes pilot testing of or a demonstration of an innovative technology or approach having the potential for im- proved cost-effectiveness in estuary habitat restoration. (d) Cost sharing (1) Federal share (A) In general Except as provided in paragraph (2) and subsection (e)(2), the Federal share of the cost of an estuary habitat restoration project (other than the cost of operation and maintenance of the project) carried out under this chapter shall not exceed 65 per- cent of such cost. (B) Monitoring (i) Costs The costs of monitoring an estuary habi- tat restoration project funded under this chapter may be included in the total cost of the estuary habitat restoration project. (ii) Goals The goals of the monitoring shall be— (I) to measure the effectiveness of the restoration project; and (II) to allow adaptive management to ensure project success. (2) Innovative technology costs The Federal share of the incremental addi- tional cost of including in a project pilot test- ing of or a demonstration of an innovative technology or approach described in sub- section (c)(4)(B) shall be 85 percent. (3) Non-Federal share The non-Federal share of the cost of an estu- ary habitat restoration project carried out Page 923 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2904 under this chapter shall include lands, ease- ments, rights-of-way, and relocations and may include services (including monitoring), or any other form of in-kind contribution determined by the Secretary to be an appropriate con- tribution equivalent to the monetary amount required for the non-Federal share of the ac- tivity. (4) Operation and maintenance The non-Federal interests shall be respon- sible for all costs associated with operating, maintaining, replacing, repairing, and reha- bilitating all projects carried out under this section. (e) Interim actions (1) In general Pending completion of the estuary habitat restoration strategy to be developed under section 2905 of this title, the Secretary may take interim actions to carry out an estuary habitat restoration activity. (2) Federal share The Federal share of the cost of an estuary habitat restoration activity before the com- pletion of the estuary habitat restoration strategy shall not exceed 25 percent of such cost. (f) Cooperation of non-Federal interests (1) In general The Secretary may not carry out an estuary habitat restoration project until a non-Fed- eral interest has entered into a written agree- ment with the Secretary in which the non- Federal interest agrees to— (A) provide all lands, easements, rights-of- way, and relocations and any other elements the Secretary determines appropriate under subsection (d)(3); and (B) provide for long-term maintenance and monitoring of the project. (2) Nongovernmental organizations Notwithstanding section 1962d–5b(b) of title 42, for any project to be undertaken under this chapter, the Secretary, in consultation and co- ordination with appropriate State and local governmental agencies and Indian tribes, may allow a nongovernmental organization to serve as the non-Federal interest for the project. (3) Project agreements For a project carried out under this chapter, the requirements of section 2213(j)(1) of this title may be fulfilled by a nongovernmental organization serving as the non-Federal inter- est for the project pursuant to paragraph (2). (g) Delegation of project implementation (1) In general In carrying out this chapter, the Secretary may delegate project implementation to an- other Federal department or agency on a re- imbursable basis if the Secretary, upon the recommendation of the Council, determines such delegation is appropriate. (2) Small projects (A) Small project defined In this paragraph, the term ‘‘small project’’ means a project carried out under this chapter with an estimated Federal cost of less than $1,000,000. (B) Delegation of project implementation In carrying out this section, the Secretary, on recommendation of the Council, may del- egate implementation of a small project to— (i) the Secretary of the Interior (acting through the Director of the United States Fish and Wildlife Service); (ii) the Under Secretary for Oceans and Atmosphere of the Department of Com- merce; (iii) the Administrator of the Environ- mental Protection Agency; or (iv) the Secretary of Agriculture. (C) Funding A small project delegated to the head of a Federal department or agency under this paragraph may be carried out using funds appropriated to the department or agency under section 2908(a)(1) of this title or other funds available to the department or agency. (D) Agreements The head of a Federal department or agen- cy to which a small project is delegated under this paragraph shall enter into an agreement with the non-Federal interest for the project generally in conformance with the criteria in subsections (d) and (e). Coop- erative agreements may be used for any del- egated project to allow the non-Federal in- terest to carry out the project on behalf of the Federal agency. (Pub. L. 106–457, title I, § 104, Nov. 7, 2000, 114 Stat. 1960; Pub. L. 110–114, title V, § 5017(c), Nov. 8, 2007, 121 Stat. 1197; Pub. L. 114–322, title IV, § 5013(a), Dec. 16, 2016, 130 Stat. 1903.) Editorial Notes AMENDMENTS 2016—Subsec. (f)(3). Pub. L. 114–322 added par. (3). 2007—Subsec. (a). Pub. L. 110–114, § 5017(c)(1), inserted ‘‘through the award of contracts and cooperative agree- ments’’ after ‘‘assistance’’. Subsec. (c)(3)(A). Pub. L. 110–114, § 5017(c)(2)(A), in- serted ‘‘or State’’ after ‘‘Federal’’. Subsec. (c)(4)(B). Pub. L. 110–114, § 5017(c)(2)(B), in- serted ‘‘or approach’’ after ‘‘technology’’. Subsec. (d)(1). Pub. L. 110–114, § 5017(c)(3)(A), des- ignated existing provisions as subpar. (A), inserted heading, and added subpar. (B). Subsec. (d)(2). Pub. L. 110–114, § 5017(c)(3)(B), inserted ‘‘or approach’’ after ‘‘technology’’. Subsec. (d)(3). Pub. L. 110–114, § 5017(c)(3)(C), inserted ‘‘(including monitoring)’’ after ‘‘services’’. Subsec. (f)(1)(B). Pub. L. 110–114, § 5017(c)(4), inserted ‘‘long-term’’ before ‘‘maintenance’’. Subsec. (g). Pub. L. 110–114, § 5017(c)(5), designated ex- isting provisions as par. (1), inserted heading, and added par. (2). § 2904. Establishment of Estuary Habitat Restora- tion Council (a) Council There is established a council to be known as the ‘‘Estuary Habitat Restoration Council’’. (b) Duties The Council shall be responsible for—