Sec. 302. Performance-based restoration authority
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In this section: The term eligible project means a habitat or ecosystem restoration, mitigation, or enhancement project or activity authorized individually or through an existing Federal program. The term eligible restoration provider means a non-Federal for-profit or nonprofit organization, company, or corporation, or a State, Tribal, or local government, that is bonded, insured, and experienced in financing and completing successful habitat and restoration, mitigation, and enhancement activities.
The term performance-based means, with respect to a contract, grant agreement, cooperative agreement, or fixed amount award, a pay-for-performance, pay-for-success, pay-for-results, or similar model by which the restoration provider agrees to finance and complete habitat or ecosystem restoration, mitigation, or enhancement activities, with payment to the restoration provider linked to delivery of verifiable and successful ecological performance, based on metrics and the timeframe established in advance by the Secretary.
The term restoration provider means a non-Federal organization that performs restoration services contracted for, agreed to, or awarded under a contract or agreement entered into under subsection (b)(1). Subject to subsection (j), in implementing existing authorities under Federal law related to habitat and ecosystem restoration, mitigation, or enhancement, the Secretary may enter into performance-based contracts, grant agreements, and cooperative agreements, including providing funding through fixed amount awards, with eligible restoration providers for the conduct of eligible projects for which ecological targets and outcomes are— clearly defined; agreed to in advance; and capable of being successfully achieved.
For purposes of paragraph (1), the Secretary may enter into performance-based contracts with eligible restoration providers experienced in financing and completing successful ecological habitat and restoration, mitigation, and enhancement activities. For purposes of paragraph (1), the Secretary— may provide funding through grant agreements and cooperative agreements, including fixed amount awards, for eligible projects; and shall allow for the use of performance-based tools in the agreements and awards described in subparagraph (A).
For purposes of paragraph (1), the Secretary— may allow funding provided to States, local governments, Indian Tribes, and nonprofit organizations to be passed through to third-party eligible restoration providers under a contract or agreement entered into under that paragraph; and shall allow for the use of performance-based tools in grant and cooperative agreements entered into with eligible restoration providers under that paragraph. The Secretary may use performance-based contracts, grant agreements, and cooperative agreements, including fixed amount awards, issued under this section for multi-year agreements, including capacity for multi-year payment schedules for professional services, subject to appropriations prior to obligation.
Not later than 1 year after the date of enactment of this Act, the Secretary shall develop programmatic guidelines for the use of performance-based contracts, grant agreements, and cooperative agreements for eligible projects authorized under subsection (b)(1). In developing the guidelines under paragraph (1), the Secretary shall consult with external organizations and other appropriate entities with experience in performance-based contracts, agreements, or awards, consistent with sections 6302 through 6305 of title 31, United States Code.
Consultation with the organizations and entities described in subparagraph
(A)shall not constitute or necessitate establishment of an advisory committee under the Federal Advisory Committee Act (5 U.S.C. App.). At a minimum, guidelines developed under paragraph
(1)shall include guidance on— appropriate proposal and evaluation criteria for eligible projects; eligibility criteria for restoration providers; criteria for defining achievable ecological outcomes; and determination of restoration provider financial assurances sufficient to ensure ecological outcomes will be successfully achieved. The Secretary shall— identify eligible projects for the use of contracts and agreements under subsection (b)(1); and issue a request for proposals from eligible restoration providers to meet the ecological requirements of habitat and ecosystem restoration, mitigation, and enhancement for the eligible projects identified under paragraph (1). After the date on which an eligible project identified under subsection (d)(1) is completed, the Secretary shall certify that the work on the eligible project was completed in accordance with the ecological requirements and outcomes defined in advance in the applicable contract or agreement. At the request of an eligible restoration provider entering into a contract or agreement with the Secretary under subsection (b)(1), the Secretary may provide to the eligible restoration provider technical assistance with respect to— conducting a study, engineering activity, or design activity related to an eligible project carried out by the eligible restoration provider under this section; and obtaining permits necessary for the eligible project. Nothing in this section authorizes the Secretary to waive— the obligations of the Secretary under— the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ); the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ); the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. ); or any other provision of Federal environmental law; or the obligations of a non-Federal party to comply with applicable Federal and State laws. The restoration provider may finance the applicable non-Federal share of an eligible project carried out under the authority provided under subsection (b)(1), on the condition that the non-Federal cost-share responsibility remains with the non-Federal party. Nothing in this section affects a cost-sharing requirement under Federal law that is applicable to an eligible project carried out under the authority provided under subsection (b)(1). Nothing in this section authorizes Federal funding to meet existing environmental mitigation or compliance obligations that are express requirements of a permit or order issued under Federal or State law, unless the requirements expressly contemplate reliance on Federal funding for the performance of the requirements. Not later than 3 years after the date of enactment of this Act, the Secretary shall— submit to the authorizing committees of Congress and make publicly available a report describing the results of activities carried out under the authority established under subsection (b)(1), including any recommendations of the Secretary on whether the authority or any component of the authorized activities should be implemented on a national basis; and except as provided in subsection (g), identify any procedural requirements that impede the use of performance-based contracts, grants, and cooperative agreements, including fixed amount awards, for the development and completion of eligible projects. Not later than 1 year after the date on which the Secretary identifies impediments, if any, under paragraph (1)(B), the Secretary shall develop and implement programmatic procedures and approaches, including recommendations to the authorizing committees of Congress on legislation, that would— to the extent practicable, address the impediments; and protect the public interest and any public investment in eligible projects carried out under this section.
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