Matching State Or Local Funds Derived From Federal Sources In The Cooperative Water Program
THIS WRD INFORMATIONAL MEMORANDUM IS BEING DISTRIBUTED ELECTRONICALLY WITH
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In Reply Refer To:
Technical Operations Program
Mail Stop 405
Sunset Date: May 2002
May 29, 2001
WATER RESOURCES DISCIPLINE INFORMATIONAL MEMORANDUM NO. 2001.05
Subject: Matching State Or Local Funds Derived From Federal Sources
In The Cooperative Water Program
State or local cooperators occasionally express concerns regarding the use
of funds derived from other Federal sources to match U.S. Geological
Survey (USGS) funds in the Cooperative Water Program. It is the position
of the USGS that State or local funds matched by USGS in this program are
funds under the control of the State or local cooperating agency that
signs the Joint Funding Agreement (JFA) with the USGS. The USGS must
ensure that the total USGS investment does not exceed 50 percent of the
total costs covered by the JFA. However, the USGS does not question the
source of the funds offered by the cooperating agency.
References that can be used to respond to such concerns include the
following.
Statutory Authority for Cooperative Agreements:
Title 43 of the United States Code (U.S.C.), Section 36c authorizes
acceptance by the USGS of contributions from public and private sources.
43 USC Sec. 36c 01/23/00
TITLE 43 - PUBLIC LANDS
CHAPTER 2 - UNITED STATES GEOLOGICAL SURVEY
Sec. 36c. Acceptance of contributions from public and private
sources; cooperation with other agencies in prosecution of
projects
In fiscal year 1987 and thereafter the United States Geological
Survey is authorized to accept lands, buildings, equipment, and
other contributions from public and private sources and to
prosecute projects in cooperation with other agencies, Federal,
State, or private.
(Pub. L. 99-500, Sec. 101(h) (title I), Oct. 18, 1986, 100 Stat.
1783-242, 1783-252, and Pub. L. 99-591, Sec. 101(h) (title I),
Oct. 30, 1986, 100 Stat. 3341-242, 3341-252; Pub. L. 102-154,
title I, Nov. 13, 1991, 105 Stat. 1000.)
Title 43 U.S.C., Section 50 provides that in carrying out water resources
investigations with any State or municipality, the share of the USGS
"shall not exceed 50 per centum of the cost thereof." The USGS has no
authority to question sources of funds used by State and local cooperators
in the Cooperative Water Program other than to ascertain that these
offerings do not include other USGS funds.
43 USC Sec. 50 01/23/00
TITLE 43 - PUBLIC LANDS
CHAPTER 2 - UNITED STATES GEOLOGICAL SURVEY
Sec. 50. Survey's share of cost of topographic mapping or water
resources investigations carried on with States
The share of the United States Geological Survey in any
topographic mapping or water resources data collection and
investigations carried on in cooperation with any State or
municipality shall not exceed 50 per centum of the cost thereof.
(Pub. L. 106-113, div. B, Sec. 1000(a)(3) (title I),
Nov. 29, 1999, 113 Stat. 1535, 1501A-145.)
Sections 36c and 50 of Title 43 can also be found at URL:
http://uscode.house.gov/usc.htm
Opinion of the Office of the Solicitor, Department of the Interior
In some instances, OMB Circular A-110 (Cost Principals for State and Local
Governments) has been erroneously referenced by cooperators as prohibiting
the USGS from matching State or local funds derived from other Federal
agencies. A 1992 response from the DOI Solicitor to the Environmental
Protection Agency (EPA) may be used to convey his opinion concerning this
issue. The EPA questioned the authority for the USGS to accept
cooperative funds from a State agency that originated as an EPA grant to
the State. The Solicitor's opinion cites the authorities above, and
provides reasons why OMB Circular
A-110 does not apply to the Cooperative Water Program.
The 1992 response from the DOI Solicitor begins on the following page.
OMB Circular A-110 is available at URL:
http://www.whitehouse.gov/OMB/circulars/a110/a110.html
Response from the Office of the Solicitor, DOI
The original response is Attachment 1 to the paper copy distribution of
this memorandum (WRD Informational Memorandum No. 2001.05). The following
is typed, verbatim, from the original.
UGS.GL.9862
Laurie Ford MAR 10 1992
Attorney-Advisor
Office of the General Counsel
Environmental Protection Agency
401 M Street SW, LE 132G
Washington, D.C. 20460
Re: Authority for the United States Geological Survey
to Act as a Subcontractor or Cooperator for the
State of California, Grantee under Grant from EPA
Dear Ms. Ford:
You have inquired by phone whether the United States
Geological Survey has the authority to perform work for
the State of California under a grant from EPA to the State.
The work would consist of using data already collected, and
collecting and analyzing additional data with regard to the
water drainage system of the upper Klamath River. This
information is essential to the proposed study of
California water resources under the EPA grant.
We find two statutes which are applicable to this matter,
and which furnish authority for USGS to enter into the
proposed agreement. Under 43 U.S.C. 36c, the USGS is
authorized to accept contributions from public and private
sources, and to prosecute projects in cooperation with
other agencies, Federal, State, or private. In our
opinion, this statue authorizes the State of California
to contribute funds to the USGS for the work it performs.
OMB Circular A-110, Cost Principles for State and Local
Governments, could not furnish flow down cost principles
to another Government agency, and would not apply to the
agreement between the State and USGS. Rather, the State
and USGS would be free to draft whatever provisions they
desire in the agreement they enter into. The United States
has authority to adopt any contract provisions it may
consider to be in its best interests, which is not
prohibited by law. See, Arizona v. California, 373 U.S.C.
546 (1963), and cases cited in Nash and Cibinic, Federal
Procurement Law, 1977 ed.; p. 11.
The fact that no OMB guidance or OMB Circular is applicable
to this transaction does not cancel or diminish the authority
of the USGS to make agreements to perform work under the
authority of 43 U.S.C. 36c. The proposed agreement with the
State would be no different than any agreement which has been
performed over a period of years under the same provision,
when it was included in the annual appropriation acts.
The seconds {second} statute which may be used as authority
is 43 U.S.C. 50 provides that in carrying out water resources
investigations with any State of {or} municipality, the share
of the Geological Survey shall not exceed 50 per centum of
the cost thereof. This statute is also applicable as
authority for the proposed agreement, because the work to be
performed will be part of an investigation of water resources.
OMB Circular A-110 would not apply.
Sincerely yours,
(signed)
E. Edward Wiles
Attorney-Advisor
Branch of Procurement
and Patents
Division of General Law
cc: Assistant Director, Intergovernmental Programs,
U.S. Geological Survey
Geological Survey Manual (SM) policies:
SM 500.1 (Policy of USGS in Cooperative Work with States, Counties,
Municipalities, and Other Political Subdivisions) defines the cooperators
eligible for inclusion in the Cooperative Program and
criteria for such agreements. There is no stipulation as to where the
Cooperators obtain their funds. This SM Chapter is provided as Attachment
2, and is also available at URL:
http://www.usgs.gov/usgs-manual/500/500-1.html
Water Resources Discipline Policies:
WRD Policy Memorandum No. 2000.08 provides guidance on preparation of
JFA's for work performed in the Cooperative Water Program. It states,
"When signing an agreement with a State or local agency, we consider the
source of the matching funds to be that of the cooperating agency.
Therefore, [Joint Funding] agreements cannot state that the cooperator's
matching funds have been provided by another Federal agency." The
prohibition of referencing other Federal funds in a JFA is based on the
fact that agreements between the USGS and other Federal agencies are
conducted under a different authority than the Cooperative Water Program,
and require an agreement with the other Federal agency using instruments
other than the Cooperative JFA. Attachment 3, Survey Manual Chapter
500.3, provides information on the "Policy on Work for Other Federal
Agencies."
This SM Chapter is also available at URL:
http://www.usgs.gov/usgs-manual/500/500-3.html
General Principals of the Cooperative Water Program:
Investigations conducted by the USGS in this program are considered to be
the result of a full partnership with the cooperating agency. The JFA's
are not "contracts" binding either party to specific contractual
procedures. The USGS has no authority to audit or question the
cooperating agency's source of funds. A fundamental assumption of the JFA
is that, in execution of this agreement between equal partners, the USGS
is conforming to all applicable Federal regulations and the cooperating
agency is conforming to all applicable State and local regulations.
/signed/
Stephen F. Blanchard
Acting Chief, Office of Information
2 Attachments (email)
3 Attachments (paper copy)
Attach2
Attach3
Distribution: A, B, DC, AO
This memorandum supersedes no other WRD Memorandum.
This memorandum is distributed via email and paper copy.
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Steve Blanchard
Acting Chief, Office of Information
U.S. Geological Survey Phone: 703-648-5629
440 National Center Fax: 703-648-5644
Reston, VA 20192
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