II

106TH CONGRESS

1ST SESSION S. 835

To encourage the restoration of estuary habitat through more efficient project

financing and enhanced coordination of Federal and non-Federal restoration programs, and for other purposes.

IN THE SENATE OF THE UNITED STATES

APRIL 20, 1999

Mr. CHAFEE (for himself, Mr. BREAUX, Mr. AKAKA, Mrs. BOXER, Mr. DODD,

Mr. EDWARDS, Mrs. FEINSTEIN, Mr. GRAHAM, Mr. KERRY, Ms.

LANDRIEU, Mr. LAUTENBERG, Mr. LIEBERMAN, Mr. MACK, Mr. MOYNIHAN, Mrs. MURRAY, Mr. REED, Mr. ROBB, Mr. SARBANES, and Mr.

WARNER) introduced the following bill; which was read twice and referred

to the Committee on Environment and Public Works

A BILL

To encourage the restoration of estuary habitat through more

efficient project financing and enhanced coordination of

Federal and non-Federal restoration programs, and for

other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Estuary Habitat Res5 toration Partnership Act of 1999’’.
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1 SEC. 2. FINDINGS.

2 Congress finds that—

3 (1) estuaries provide some of the most eco4 logically and economically productive habitat for an

5 extensive variety of plants, fish, wildlife, and water6 fowl;

7 (2) the estuaries and coastal regions of the

8 United States are home to one-half the population of

9 the United States and provide essential habitat for

10 75 percent of the Nation’s commercial fish catch

11 and 80 to 90 percent of its recreational fish catch;

12 (3) estuaries are gravely threatened by habitat

13 alteration and loss from pollution, development, and

14 overuse;

15 (4) successful restoration of estuaries demands

16 the coordination of Federal, State, and local estuary

17 habitat restoration programs; and

18 (5) the Federal, State, local, and private co19 operation in estuary habitat restoration activities in

20 existence on the date of enactment of this Act

21 should be strengthened and new public and public22 private estuary habitat restoration partnerships es23 tablished.

24 SEC. 3. PURPOSES.

25 The purposes of this Act are—
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1 (1) to establish a voluntary program to restore

2 1,000,000 acres of estuary habitat by 2010;

3 (2) to ensure coordination of Federal, State,

4 and community estuary habitat restoration pro5 grams, plans, and studies;

6 (3) to establish effective estuary habitat res7 toration partnerships among public agencies at all

8 levels of government and between the public and pri9 vate sectors;

10 (4) to promote efficient financing of estuary

11 habitat restoration activities; and

12 (5) to develop and enhance monitoring and re13 search capabilities to ensure that restoration efforts

14 are based on sound scientific understanding.

15 SEC. 4. DEFINITIONS.

16 In this Act:

17 (1) COLLABORATIVE COUNCIL.—The term ‘‘Col18 laborative Council’’ means the interagency council

19 established by section 5.

20 (2) DEGRADED ESTUARY HABITAT.—The term

21 ‘‘degraded estuary habitat’’ means estuary habitat

22 where natural ecological functions have been im23 paired and normal beneficial uses have been reduced.

24 (3) ESTUARY.—The term ‘‘estuary’’ means—
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1 (A) a body of water in which fresh water

2 from a river or stream meets and mixes with

3 salt water from the ocean; and

4 (B) the physical, biological, and chemical

5 elements associated with such a body of water.

6 (4) ESTUARY HABITAT.—

7 (A) IN GENERAL.—The term ‘‘estuary

8 habitat’’ means the complex of physical and hy9 drologic features and living organisms within

10 estuaries and associated ecosystems.

11 (B) INCLUSIONS.—The term ‘‘estuary

12 habitat’’ includes salt and fresh water coastal

13 marshes, coastal forested wetlands and other

14 coastal wetlands, maritime forests, coastal

15 grasslands, tidal flats, natural shoreline areas,

16 shellfish beds, sea grass meadows, kelp beds,

17 river deltas, and river and stream banks under

18 tidal influence.

19 (5) ESTUARY HABITAT RESTORATION ACTIV20 ITY.—

21 (A) IN GENERAL.—The term ‘‘estuary

22 habitat restoration activity’’ means an activity

23 that results in improving degraded estuary

24 habitat (including both physical and functional

25 restoration), with the goal of attaining a self-
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1 sustaining system integrated into the sur2 rounding landscape.

3 (B) INCLUDED ACTIVITIES.—The term

4 ‘‘estuary habitat restoration activity’’

5 includes—

6 (i) the reestablishment of physical fea7 tures and biological and hydrologic func8 tions;

9 (ii) except as provided in subpara10 graph (C)(ii), the cleanup of contamination

11 related to the restoration of estuary habi12 tat;

13 (iii) the control of non-native and

14 invasive species;

15 (iv) the reintroduction of native spe16 cies through planting or natural succes17 sion; and

18 (v) other activities that improve estu19 ary habitat.

20 (C) EXCLUDED ACTIVITIES.—The term

21 ‘‘estuary habitat restoration activity’’ does not

22 include—

23 (i) an act that constitutes mitigation

24 for the adverse effects of an activity regu-
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1 lated or otherwise governed by Federal or

2 State law; or

3 (ii) an act that constitutes restitution

4 for natural resource damages required

5 under any Federal or State law.

6 (6) ESTUARY HABITAT RESTORATION

7 PROJECT.—The term ‘‘estuary habitat restoration

8 project’’ means an estuary habitat restoration activ9 ity under consideration or selected by the Collabo10 rative Council, in accordance with this Act, to re11 ceive financial, technical, or another form of assist12 ance.

13 (7) ESTUARY HABITAT RESTORATION STRAT14 EGY.—The term ‘‘estuary habitat restoration strat15 egy’’ means the estuary habitat restoration strategy

16 developed under section 6(a).

17 (8) FEDERAL ESTUARY MANAGEMENT OR HABI18 TAT RESTORATION PLAN.—The term ‘‘Federal estu19 ary management or habitat restoration plan’’ means

20 any Federal plan for restoration of degraded estuary

21 habitat that—

22 (A) was developed by a public body with

23 the substantial participation of appropriate

24 public and private stakeholders; and
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1 (B) reflects a community-based planning

2 process.

3 (9) SECRETARY.—The term ‘‘Secretary’’ means

4 the Secretary of the Army, or a designee.

5 (10) UNDER SECRETARY.—The term ‘‘Under

6 Secretary’’ means the Under Secretary for Oceans

7 and Atmosphere of the Department of Commerce, or

8 a designee.

9 SEC. 5. ESTABLISHMENT OF COLLABORATIVE COUNCIL.

10 (a) COLLABORATIVE COUNCIL.—There is established

11 an interagency council to be known as the ‘‘Estuary Habi12 tat Restoration Collaborative Council’’.

13 (b) MEMBERSHIP.—

14 (1) IN GENERAL.—The Collaborative Council

15 shall be composed of the Secretary, the Under Sec16 retary, the Administrator of the Environmental Pro17 tection Agency, and the Secretary of the Interior

18 (acting through the Director of the United States

19 Fish and Wildlife Service), or their designees.

20 (2) CHAIRPERSON; LEAD AGENCY.—The Sec21 retary, or designee, shall chair the Collaborative

22 Council, and the Department of the Army shall

23 serve as the lead agency.

24 (c) CONVENING OF COLLABORATIVE COUNCIL.—The

25 Secretary shall—
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1 (1) convene the first meeting of the Collabo2 rative Council not later than 30 days after the date

3 of enactment of this Act; and

4 (2) convene additional meetings as often as ap5 propriate to ensure that this Act is fully carried out,

6 but not less often than quarterly.

7 (d) COLLABORATIVE COUNCIL PROCEDURES.—

8 (1) QUORUM.—Three members of the Collabo9 rative Council shall constitute a quorum.

10 (2) VOTING AND MEETING PROCEDURES.—The

11 Collaborative Council shall establish procedures for

12 voting and the conduct of meetings by the Council.

13 SEC. 6. DUTIES OF COLLABORATIVE COUNCIL.

14 (a) ESTUARY HABITAT RESTORATION STRATEGY.—

15 (1) IN GENERAL.—Not later than 1 year after

16 the date of enactment of this Act, the Collaborative

17 Council, in consultation with non-Federal partici18 pants, including nonprofit sectors, as appropriate,

19 shall develop an estuary habitat restoration strategy

20 designed to ensure a comprehensive approach to the

21 selection and prioritization of estuary habitat res22 toration projects and the coordination of Federal

23 and non-Federal activities related to restoration of

24 estuary habitat.
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1 (2) INTEGRATION OF PREVIOUSLY AUTHORIZED

2 ESTUARY HABITAT RESTORATION PLANS, PROGRAMS,

3 AND PARTNERSHIPS.—In developing the estuary

4 habitat restoration strategy, the Collaborative Coun5 cil shall—

6 (A) conduct a review of—

7 (i) Federal estuary management or

8 habitat restoration plans; and

9 (ii) Federal programs established

10 under other law that provide funding for

11 estuary habitat restoration activities;

12 (B) develop a set of proposals for—

13 (i) using programs established under

14 this or any other Act to maximize the in15 centives for the creation of new public-pri16 vate partnerships to carry out estuary

17 habitat restoration projects; and

18 (ii) using Federal resources to encour19 age increased private sector involvement in

20 estuary habitat restoration activities; and

21 (C) ensure that the estuary habitat res22 toration strategy is developed and will be imple23 mented in a manner that is consistent with the

24 findings and requirements of Federal estuary

25 management or habitat restoration plans.
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1 (3) ELEMENTS TO BE CONSIDERED.—Con2 sistent with the requirements of this section, the

3 Collaborative Council, in the development of the es4 tuary habitat restoration strategy, shall consider—

5 (A) the contributions of estuary habitat

6 to—

7 (i) wildlife, including endangered and

8 threatened species, migratory birds, and

9 resident species of an estuary watershed;

10 (ii) fish and shellfish, including com11 mercial and sport fisheries;

12 (iii) surface and ground water quality

13 and quantity, and flood control;

14 (iv) outdoor recreation; and

15 (v) other areas of concern that the

16 Collaborative Council determines to be ap17 propriate for consideration;

18 (B) the estimated historic losses, estimated

19 current rate of loss, and extent of the threat of

20 future loss or degradation of each type of estu21 ary habitat; and

22 (C) the most appropriate method for se23 lecting a balance of smaller and larger estuary

24 habitat restoration projects.
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1 (4) ADVICE.—The Collaborative Council shall

2 seek advice in restoration of estuary habitat from ex3 perts in the private and nonprofit sectors to assist

4 in the development of an estuary habitat restoration

5 strategy.

6 (5) PUBLIC REVIEW AND COMMENT.—Before

7 adopting a final estuary habitat restoration strategy,

8 the Collaborative Council shall publish in the Fed9 eral Register a draft of the estuary habitat restora10 tion strategy and provide an opportunity for public

11 review and comment.

12 (b) PROJECT APPLICATIONS.—

13 (1) IN GENERAL.—An application for an estu14 ary habitat restoration project shall originate from a

15 non-Federal organization and shall require, when ap16 propriate, the approval of State or local agencies.

17 (2) FACTORS TO BE TAKEN INTO ACCOUNT.—

18 In determining the eligibility of an estuary habitat

19 restoration project for financial assistance under this

20 Act, the Collaborative Council shall consider the fol21 lowing:

22 (A) Whether the proposed estuary habitat

23 restoration project meets the criteria specified

24 in the estuary habitat restoration strategy.
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1 (B) The technical merit and feasibility of

2 the proposed estuary habitat restoration

3 project.

4 (C) Whether the non-Federal persons pro5 posing the estuary habitat restoration project

6 provide satisfactory assurances that they will

7 have adequate personnel, funding, and author8 ity to carry out and properly maintain the estu9 ary habitat restoration project.

10 (D) Whether, in the State in which a pro11 posed estuary habitat restoration project is to

12 be carried out, there is a State dedicated source

13 of funding for programs to acquire or restore

14 estuary habitat, natural areas, and open spaces.

15 (E) Whether the proposed estuary habitat

16 restoration project will encourage the increased

17 coordination and cooperation of Federal, State,

18 and local government agencies.

19 (F) The amount of private funds or in20 kind contributions for the estuary habitat res21 toration project.

22 (G) Whether the proposed habitat restora23 tion project includes a monitoring plan to en24 sure that short-term and long-term restoration

25 goals are achieved.
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1 (H) Other factors that the Collaborative

2 Council determines to be reasonable and nec3 essary for consideration.

4 (3) PRIORITY ESTUARY HABITAT RESTORATION

5 PROJECTS.—An estuary habitat restoration project

6 shall be given a higher priority in receipt of funding

7 under this Act if, in addition to meeting the selec8 tion criteria specified in this section—

9 (A) the estuary habitat restoration project

10 is part of an approved Federal estuary manage11 ment or habitat restoration plan;

12 (B) the non-Federal share with respect to

13 the estuary habitat restoration project exceeds

14 50 percent; or

15 (C) there is a program within the water16 shed of the estuary habitat restoration project

17 that addresses sources of water pollution that

18 would otherwise re-impair the restored habitat.

19 (c) INTERIM ACTIONS.—

20 (1) IN GENERAL.—Pending completion of the

21 estuary habitat restoration strategy developed under

22 subsection (a), the Collaborative Council may pay

23 the Federal share of the cost of an interim action to

24 carry out an estuary habitat restoration activity.
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1 (2) FEDERAL SHARE.—The Federal share shall

2 not exceed 25 percent.

3 (d) COOPERATION OF NON-FEDERAL PARTNERS.—

4 (1) IN GENERAL.—The Collaborative Council

5 shall not select an estuary habitat restoration project

6 until a non-Federal interest has entered into a writ7 ten agreement with the Secretary in which it agrees

8 to provide the required non-Federal cooperation for

9 the project.

10 (2) NONPROFIT ENTITIES.—Notwithstanding

11 section 221 of the Flood Control Act of 1970 (42

12 U.S.C. 1962d–5b(b)), for any project undertaken

13 under this section, the Secretary may, after coordi14 nation with the official responsible for the political

15 jurisdiction in which a project would occur, allow a

16 nonprofit entity to serve as the non-Federal interest.

17 (3) MAINTENANCE AND MONITORING.—A co18 operation agreement entered into under paragraph

19 (1) shall provide for maintenance and monitoring of

20 the estuary habitat restoration project to the extent

21 determined necessary by the Collaborative Council.

22 (e) LEAD COLLABORATIVE COUNCIL MEMBER.—The

23 Collaborative Council shall designate a lead Collaborative

24 Council member for each proposed estuary habitat res25 toration project. The lead Collaborative Council member
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1 shall have primary responsibility for overseeing and assist2 ing others in implementing the proposed project.

3 (f) AGENCY CONSULTATION AND COORDINATION.—

4 In carrying out this section, the Collaborative Council

5 shall, as the Collaborative Council determines it to be nec6 essary, consult with, cooperate with, and coordinate its ac7 tivities with the activities of other appropriate Federal

8 agencies.

9 (g) BENEFITS AND COSTS OF ESTUARY HABITAT

10 RESTORATION PROJECTS.—The Collaborative Council

11 shall evaluate the benefits and costs of estuary habitat res12 toration projects in accordance with section 907 of the

13 Water Resources Development Act of 1986 (33 U.S.C.

14 2284).

15 (h) AUTHORIZATION OF APPROPRIATIONS.—There is

16 authorized to be appropriated to the Department of the

17 Army for the administration and operation of the Collabo18 rative Council $4,000,000 for each of fiscal years 2000

19 through 2004.

20 SEC. 7. COST SHARING OF ESTUARY HABITAT RESTORA21 TION PROJECTS.

22 (a) IN GENERAL.—No financial assistance in car23 rying out an estuary habitat restoration project shall be

24 available under this Act from any Federal agency unless
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1 the non-Federal applicant for assistance demonstrates

2 that the estuary habitat restoration project meets—

3 (1) the requirements of this Act; and

4 (2) any criteria established by the Collaborative

5 Council under this Act.

6 (b) FEDERAL SHARE.—The Federal share of the cost

7 of an estuary habitat restoration and protection project

8 assisted under this Act shall be not more than 65 percent.

9 (c) NON-FEDERAL SHARE.—The non-Federal share

10 of the cost of an estuary habitat restoration project may

11 be provided in the form of land, easements, rights-of-way,

12 services, or any other form of in-kind contribution deter13 mined by the Collaborative Council to be an appropriate

14 contribution equivalent to the monetary amount required

15 for the non-Federal share of the estuary habitat restora16 tion project.

17 (d) ALLOCATION OF FUNDS BY STATES TO POLIT18 ICAL SUBDIVISIONS.—With the approval of the Secretary,

19 a State may allocate to any local government, area-wide

20 agency designated under section 204 of the Demonstration

21 Cities and Metropolitan Development Act of 1966 (42

22 U.S.C. 3334), regional agency, or interstate agency, a por23 tion of any funds disbursed in accordance with this Act

24 for the purpose of carrying out an estuary habitat restora25 tion project.
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1 SEC. 8. MONITORING AND MAINTENANCE OF ESTUARY

2 HABITAT RESTORATION PROJECTS.

3 (a) DATABASE OF RESTORATION PROJECT INFORMA4 TION.—The Under Secretary shall maintain an appro5 priate database of information concerning estuary habitat

6 restoration projects funded under this Act, including infor7 mation on project techniques, project completion, moni8 toring data, and other relevant information.

9 (b) REPORT.—

10 (1) IN GENERAL.—The Collaborative Council

11 shall biennially submit a report to the Committee on

12 Environment and Public Works of the Senate and

13 the Committee on Transportation and Infrastructure

14 of the House of Representatives on the results of ac15 tivities carried out under this Act.

16 (2) CONTENTS OF REPORT.—A report under

17 paragraph (1) shall include—

18 (A) data on the number of acres of estuary

19 habitat restored under this Act, including the

20 number of projects approved and completed

21 that comprise those acres;

22 (B) the percentage of restored estuary

23 habitat monitored under a plan to ensure that

24 short-term and long-term restoration goals are

25 achieved;
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1 (C) an estimate of the long-term success of

2 varying restoration techniques used in carrying

3 out estuary habitat restoration projects;

4 (D) a review of how the information de5 scribed in subparagraphs (A) through (C) has

6 been incorporated in the selection and imple7 mentation of estuary habitat restoration

8 projects;

9 (E) a review of efforts made to maintain

10 an appropriate database of restoration projects

11 funded under this Act; and

12 (F) a review of the measures taken to pro13 vide the information described in subparagraphs

14 (A) through (C) to persons with responsibility

15 for assisting in the restoration of estuary habi16 tat.

17 SEC. 9. COOPERATIVE AGREEMENTS; MEMORANDA OF UN18 DERSTANDING.

19 In carrying out this Act, the Collaborative Council

20 may—

21 (1) enter into cooperative agreements with Fed22 eral, State, and local government agencies and other

23 persons and entities; and

24 (2) execute such memoranda of understanding

25 as are necessary to reflect the agreements.
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1 SEC. 10. DISTRIBUTION OF APPROPRIATIONS FOR ESTU2 ARY HABITAT RESTORATION ACTIVITIES.

3 The Secretary shall allocate funds made available to

4 carry out this Act based on the need for the funds and

5 such other factors as are determined to be appropriate to

6 carry out this Act.

7 SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

8 (a) AUTHORIZATION OF APPROPRIATIONS UNDER

9 OTHER LAW.—Funds authorized to be appropriated

10 under section 908 of the Water Resources Development

11 Act of 1986 (33 U.S.C. 2285) and section 206 of the

12 Water Resources Development Act of 1996 (33 U.S.C.

13 2330) may be used by the Secretary in accordance with

14 this Act to assist States and other non-Federal persons

15 in carrying out estuary habitat restoration projects or in16 terim actions under section 6(c).

17 (b) AUTHORIZATION OF APPROPRIATIONS.—There

18 are authorized to be appropriated to the Secretary to carry

19 out estuary habitat restoration activities—

20 (1) $40,000,000 for fiscal year 2000;

21 (2) $50,000,000 for fiscal year 2001; and

22 (3) $75,000,000 for each of fiscal years 2002

23 through 2004.

24 SEC. 12. NATIONAL ESTUARY PROGRAM.

25 (a) GRANTS FOR COMPREHENSIVE CONSERVATION

26 AND MANAGEMENT PLANS.—Section 320(g)(2) of the
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1 Federal Water Pollution Control Act (33 U.S.C.

2 1330(g)(2)) is amended by inserting ‘‘and implementa3 tion’’ after ‘‘development’’.

4 (b) AUTHORIZATION OF APPROPRIATIONS.—Section

5 320(i) of the Federal Water Pollution Control Act (33

6 U.S.C. 1330(i)) is amended by striking ‘‘1987’’ and all

7 that follows through ‘‘1991’’ and inserting the following:

8 ‘‘1987 through 1991, such sums as may be necessary for

9 fiscal years 1992 through 1999, and $25,000,000 for each

10 of fiscal years 2000 and 2001’’.

11 SEC. 13. GENERAL PROVISIONS.

12 (a) ADDITIONAL AUTHORITY FOR ARMY CORPS OF

13 ENGINEERS.—The Secretary—

14 (1) may carry out estuary habitat restoration

15 projects in accordance with this Act; and

16 (2) shall give estuary habitat restoration

17 projects the same consideration as projects relating

18 to irrigation, navigation, or flood control.

19 (b) INAPPLICABILITY OF CERTAIN LAW.—Sections

20 203, 204, and 205 of the Water Resources Development

21 Act of 1986 (33 U.S.C. 2231, 2232, 2233) shall not apply

22 to an estuary habitat restoration project selected in ac23 cordance with this Act.
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1 (c) ESTUARY HABITAT RESTORATION MISSION.—

2 The Secretary shall establish restoration of estuary habi3 tat as a primary mission of the Army Corps of Engineers.

4 (d) FEDERAL AGENCY FACILITIES AND PER5 SONNEL.—

6 (1) IN GENERAL.—Federal agencies may co7 operate in carrying out scientific and other programs

8 necessary to carry out this Act, and may provide fa9 cilities and personnel, for the purpose of assisting

10 the Collaborative Council in carrying out its duties

11 under this Act.

12 (2) REIMBURSEMENT FROM COLLABORATIVE

13 COUNCIL.—Federal agencies may accept reimburse14 ment from the Collaborative Council for providing

15 services, facilities, and personnel under paragraph

16 (1).

17 (e) ADMINISTRATIVE EXPENSES AND STAFFING.—

18 Not later than 180 days after the date of enactment of

19 this Act, the Comptroller General of the United States

20 shall submit to Congress and the Secretary an analysis

21 of the extent to which the Collaborative Council needs ad22 ditional personnel and administrative resources to fully

23 carry out its duties under this Act. The analysis shall in-
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1 clude recommendations regarding necessary additional

2 funding.

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