Fish and Wildlife Service's Proposed Guidelines

Material Information

Fish and Wildlife Service's Proposed Guidelines
Alternate Title:
Fish and Wildlife Service's Proposed Guidelines regarding the use of nonprofit organizations to assist the Department of Interior in purchasing land
Publication Date:
Physical Description:


Subjects / Keywords:
Nonprofit organizations ( jstor )
Letters of intent ( jstor )
Wildlife ( jstor )
Spatial Coverage:
North America -- United States of America -- Florida


General Note:
Box 5, Folder 5 ( SF LAND ACQUISITION ), Item 5
Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.

Record Information

Source Institution:
University of Florida
Holding Location:
Levin College of Law, University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.


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Guidelines Offered For Land Acquisi-
The Fish and Wildlife Service (FWS)
has proposed guidelines regarding the use
of nonprofit organizations to assist the
Department of Interior in purchasing land.
The proposed guidelines resulted from an
audit conducted by the Interior
Department's Inspector General last
spring. NCA was instrumental in em-
phasizing the concerns with such land
transactions and those concerns initiated
the audit. Currently, the FWS uses non-
profit organizations to help purchase land
for the agency without any formal guide-
lines. The proposed guidelines would
affirm the benefits of using nonprofit or-
ganizations to help the Interior Department
buy land, immediately discontinue the
government's practice of reimbursing
nonprofit organizations for interest lost in
such land transactions, prevent nonprofit
organizations from making a profit on
such land transactions and require regular
reports and audits on the transactions.
NCA opposes government agency prac-
tices of using private organizations as
conduits to increase federal and state
government acquisition of private prop-
erty. Comments on the FWS proposal
were due by Dec. 21.

Refuges and Wildlife
Atlanta, Georgia 30303
4-o4/ 331- 35- 4 3

Date:,/ 3J
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United States Department of the Interior

AOOftIess ON T. V cOee
In Reply Refer To:
FWS/REV 3 1992


To: Regional Directors, Regions 1 through 7
From: u*01 director
Subject: Non-Profits, Reimbursable Costs
As stated in my memorandum of September 14, 1992, the Fish and
Wildlife Service (Service) received a Solicitor's opinion dated
July 30, 1992, (in response to the Inspector General's audit on
non-profits) that upheld Service policy of payments for overhead
and direct costs incurred on property purchases covered by
letters of intent. However, interest payments can no longer be
reimbursed to non-profit organizations.
As an interim measure, we are initiating a process to reimburse
the non-profits for reasonable documented operating costs
incurred when conducting transactions for the service.
Calculations for overhead costs specific to Government
transactions will be limited to 15 percent along with direct cost
reimbursements. The direct costs to be reimbursed would include
costs of outside appraisals, title contracts, itemized costs paid
at closings, contracted surveys, etc. These costs would be
identified at the beginning of the project and documented to the
Service prior to payment.
The 15 percent needs further analysis and verification.
Therefore, this procedure is initiated on a 6-month trial basis
during which we will evaluate actual project costs. At the end
of the 6-month period, the Service will have enough information
available to determine a fair and equitable overhead rate.
There may be some cases with little to no costs wherein this
payment rate might not be applicable. In order to identify these
cases as well as identify actual costs during the interim test
period, please forward all projects, as early as possible in the
process, to the Washington Office. The Service would then meet
with the non-profit at the national level to determine actual
costs incurred and to decide which projects should receive
exemptions to the cost reimbursement process.

11/04/02 11:34 1 RE RE REGION 4 RE 1003/003

This process should apply to all future projects as well as past
projects wherein payments are outstanding and the Service had
previously agreed to a payment of interest. This trial process,
subject to Washington Office review, will be utilized on all non-
profit acquisitions covered by letters of intent.
We continue discussions with the Department, the Solicitor's
Office, and the non-profit organizations and will keep you
advised. All other non-profit policy procedures not modified by
this memorandum shall remain in effect. Please address any
questions to Dave Olsen, Assistant Director Refuges and
Wildlife or Geoffrey L. Haskett, Chief, Division of Realty at
(703) 358-1713.

Buoa Blanchard


United States Department of the Interior ME

AOccEss ONY .r ne oMCCTOI.

NOV l gC

In Reply Refer To:


To: Regional Directors, Regions 1, 2, 3, 4, 5, 6, and 7

From Oeputv Director

Subject: Policy and Operating Procedure for Cooperative Land
Acquisition Projects Involving Nonprofit Conservation
Organizations (NCO) *

By memorandum dated August 7, 3990, a procedure was set out
regarding how the Service would- proceed wvih letters of intent
with NCOs within the budget process. This memorandum-indicated
4 that any revisions to the procedures would be transmitted in
draft for review and comment. By memorandum dated September 17,
1990, a copy of the final draft was sent to all Regions for
review and comment.

Comments were received from several Regions. One Region's
comments involved discussion about the fair market value and the
desire to have the latitude to reimburse the NCO at the purchase
price even though it is higher than the fair market value. The
final policy has not been changed to allow for a payment in
excess of the fair market value.

Attached is a copy of the final policy and procedures for
cooperating with Non-Profit Conservation Organizations on land
acquisition projects. This policy will supersede memoranda dated
September 14, 1989, Letters of Commitment and August 7, 1990,
Letters of Intent with Non-Profit Conservation Organizations.
The content of these memoranda have been incorporated into the
final policy. The final policy will be incorporated into the
Realty Manual.

- -- ------ ---- -

Please feel free to address any comments to the Assistant
Director for Refuges and Wildlife or to Clyde Schnack, Chief,
( ranch of Acquisition Management, Division of Realty at
FTS 921-1816.


8. -- 1


The cooperative relationships between nonprofit conservation
organizations (nonprofits) and the Fish and Wildlife Service
(Service) has resulted in the acquisition of lands and waters of
national ecological significance. In the many years that this
relationship has prospered, thousands of acres of valuable
wildlife habitat have been acquired by nonprofits on behalf of
the Service. Working in the private real estate market,
nonprofits have the ability to react quickly to imminent threat
to protect these important resources and hold them during the
Service's lengthy appropriation process.

This guidance has been developed to encourage the continuation of
these productive relationships, but at the same time assure that
cooperation with nonprofits is consistent Service wide, that
transactions are conducted in a fiscally responsible manner and
hat lands acquired are based on Service priorities.

Service cooperative land acquisition using nonprofits will a
to the "Basic Principa ed in the Department of the
*a Federal Register Volume 418, No

These principals are summa a

Nonprofits are in no manner agents of the Service.

-- Land acquired by nonprofits for transfer to this agency
must be in accord with Service acquisition priorities.

-- A signed Letter of Intent is the instrument that establishes
the cooperative relationship between the Service and

-- Full disclosure of the specifics of the nonprofits' purchase
must be made before the Service can accept transfer of the
land and reimburse the nonprofit.

In the spirit of cooperation, the entities should get together
early in the planning/acquisition process, as a team, to work out
an understanding of the Service and nonprofit roles and
responsibilities. As a result of this cooperative effort, a
brief document, one paragraph to one to three pages, should be
written to confirm the agreed upon actions. This document will
become a part of the letter of intent.



To be considered a Service sponsored COOP the following two
requirements must be satisfied:

1) Lands considered for acquisition must be included in the
Service's land acquisition priority system as evidenced by an
approved Preliminary Project Proposal (PPP).

2) There must be a Letter of Intent signed by the Director
containing the "basic elements" described in Section II.

A COOP may be established at any stage in the acquisition process
up to transfer and payment for the lands involved. The
participants, however, are encouraged to establish the COOP as
soon as enough detail is known to satisfy the "basic element"
requirements of a Letter of Intent. Prompt submittal may allow
the project to be considered in an earlier budget cycle, saving a
ear's worth of holding costs.

n general, COOPs created outside of this procedure will not be
supported by the Service for a o ions or payment of
nonprofit overhead costs. An s rcedure can be
made for proW

e Letter of Intent).


Letters of Intent signed by the Director will officially
establish a Service COOP with a nonprofit. Requests for Letters
of Intent will normally come from the involved Regional office.
All requests must be accompanied by a full justification and
draft letter. Due to the limited amount of funds available in
the MBCF and LWCF accounts, you are encouraged to spread the
Service's commitment for funding of larger areas (over $2-3
million) into multi-year increments. No particular form is
required but, at a minimum, six basic elements must be expressed
in Letters of Intent.

1) The Service will reimburse the nonprofits purchase price for
land up to the approved fair market value (include the purchase
price or best estimate, if available).

2) Reimbursement will be dependent on appropriations approved by


3) Acreage and description of the lands to be acquired, the
Interest to be acquired, and any anticipated reservations.

4) The estimated fiscal year in which the Service intends to
acquire the property.

5) A provision that if the Service cannot purchase the property
within a reasonable period of time, the nonprofit can sell the
property on the open market, without liability to the Service, if
no conservation purchaser can be found.

6) An attachment to the letter to provide the agreed upon roles,
responsibilities and conditions of the purchase by the nonprofit
and sale to the Service. Some of the items to be covered
include, but are not limited to, the following:

a) What the estimated reasonable acquisition related
expenses would be, such as, the direct expenses and/or
operating expenses of the nonprofit (see Section IV).

b) A request for a complete disclosure statement from the
nonprofit before reimbursement and transfer can be made by
the Region. Disclosure statements include the following:

(1) Figures on the actual purchase and or option

(2) An itemized list of expenses specifically
associated with the tract to be transferred.

(3) If NCO has an appraisal supporting value, it must
be provided to the FWS with sufficient time to
insure an adequate technical review before the
property can be purchased by the government.

c) A justification statement on why operating expenses in
addition to reasonable direct expenses should be paid by the
Service to the nonprofit.

d) A copy of the purchase agreement and/or Deed between the
nonprofit and the landowner.

e) A statement of need for an acceptable contaminant report
by the Service (or nonprofit but approved by the Service)
before the property can be transferred.

f) The NCO should identify if there are any third parties
that may have an interest in the property.



All projects with signed Letters of Intent will be identified by
the Regions in the 5-year plan as their highest priority
projects. This will include COOPs within the Administration's
budget for land acquisition and assures that commitments are
fulfilled for established Service COOPs. No Letters of Intent
can be signed by the Director for the program year after the
Service's budget has been forwarded to the Department (usually
late July-early August). This is not an attempt to limit in any
way regional land acquisition programs, but a direct approach to
including regional needs within the budget process. Letters of
Intent signed after the budget estimate has been forwarded to the
Department will cite payment in the next year or years.

Land and Water Conservation Funds for the program year (current
year+2) and years +3 and +4 will be monitored to assure all
Service Letters of Intent are included.

The 5-year Land Acquisition Schedules within the Land Acquisition
System (LAPS) will be used to develop the above 5-year plan


Three categories of reimbursement to nonprofits may be considered
at the time the property is to be transferred to the Service;
(1) the purchase price of the land, (2) the nonprofit's
reasonable direct expenses associated with the specific purchase,
and (3) an operating expense attributed to the costs of
maintaining that portion of the nonprofits organization devoted
to COOPs.

Reasonable expenses incurred by nonprofits in managing COOPs are
considered compensable under provisions of general land
acquisition authorities that allow the Service to pay for land
acquisition related costs.

While the Letter of Intent may have included estimates for these
items, the required disclosure statement discussed in section II
should contain the exact amounts to be reimbursed.


The Service may reimburse the nonprofit for the purchase price of
the land up to the approved fair market value. If the property
was purchased at less than market value, the participants are
encouraged to transfer the property at the reduced price plus
reasonable direct expenses. This enables the savings to be
applied to other Service high priority acquisitions.


S* S

Transfers of property to the Service at less than Fair Market
Value are voluntary on the part of the nonprofit.


The Service can reimburse the nonprofit for reasonable direct
expenses associated with a COOP purchase, including but not
limited to the cost of borrowed money, title reports, appraisal
reports, surveys, and related travel. These expenses must be
itemized on the disclosure statement before payment can be made.


There may be an organizational cost to the nonprofit in addition
to reasonable direct expenses related to the complexity of the
acquisition. The need to pay this cost must be justified in the
nonprofits disclosure statement. Many COOP transfers that are
not complex will not warrant reimbursement of this expense.

This expense should be paid based on the following formula or a
mutually agreed to cost which is reasonable and prudent:

3% on any amount up to $500,000
2% on the amount over $500,000 but under $1,000,000; and
1% on any amount over $1,000,000


Nonprofits are also entitled reimbursement for expenses
authorized by Public Law 91-646 (Uniform Relocation Act), as
amended; however, such payments will be very rare in that
nonprofit related expenses are to be paid under provision of
section IV (duplication of payments are not allowed under the
Act). Tenants and other authorized parties are eligible for
certain benefits under the Uniform Relocation Act but only if
they have not sold or moved prior to the purchase by the United
States. This should be discussed prior to letter of intent as
per Section II.6.f. Please refer to the Act for specific details
on eligibility.

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