[Federal Register: November 12, 2003 (Volume 68, Number 218)]
[Rules and Regulations]
[Page 64199-64249]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12no03-11]
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Part II
Department of Defense
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Department of the Army, Corps of Engineers
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33 CFR Part 385
Programmatic Regulations for the Comprehensive Everglades Restoration
Plan; Final Rule
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 385
RIN 0710-AA49
Programmatic Regulations for the Comprehensive Everglades
Restoration Plan
AGENCY: Army Corps of Engineers, DOD.
ACTION: Final rule.
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SUMMARY: The Army promulgates this final rule to establish programmatic
regulations for the Comprehensive Everglades Restoration Plan. Congress
approved the Comprehensive Everglades Restoration Plan in section 601
of the Water Resources Development Act of 2000, which was enacted into
law on December 11, 2000. The Act requires the Secretary of the Army to
promulgate programmatic regulations to ensure that the goals and
purposes of the Comprehensive Everglades Restoration Plan are achieved.
We have developed this final rule in response to that statutory
requirement. The rule establishes processes and procedures that will
guide the Army Corps of Engineers in the implementation of the
Comprehensive Everglades Restoration Plan.
Today's action completes a rulemaking that began on August 2, 2002
with the publication of proposed regulations. The final rule contain a
number of revisions that respond to public comments on the proposed
regulations.
DATES: This rule is effective December 12, 2003.
FOR FURTHER INFORMATION CONTACT: Stu Appelbaum, Corps of Engineers,
Jacksonville District, at the above address by telephone (904) 232-
1877, or by fax (904) 232-1434. You may also access the programmatic
regulations Web page at: http://www.evergladesplan.org/pm/progr_regs.cfm/
.
SUPPLEMENTARY INFORMATION:
I. Background
Section 601(h)(3) of the Water Resources Development Act of 2000,
Public Law 106-541 (114 Stat. 2688) (hereinafter ``WRDA 2000'')
requires the Secretary of the Army, after notice and opportunity for
public comment, to promulgate regulations to ensure that the goals and
purposes of the Comprehensive Everglades Restoration Plan (the Plan)
are achieved. These final regulations fulfill this requirement and
establish the administrative structure for carrying out the Plan.
The programmatic regulations establish a process: for the
development of Project Implementation Reports, Project Cooperation
Agreements, and Operating Manuals that will ensure that the goals and
the objectives of the Comprehensive Everglades Restoration Plan (CERP)
are achieved; to ensure that new information resulting from changes or
unforeseen circumstances, new scientific or technical information or
information that is developed through the principles of adaptive
management contained in the Plan, and future authorized changes to the
Plan will be integrated into the implementation of the Plan; and, to
ensure the protection of the natural system consistent with the goals
and purposes of the Plan, including the establishment of interim goals
to provide a means by which the restoration success of the Plan will be
evaluated throughout the implementation process.
The programmatic regulations recognize that the Everglades are a
critical national resource in which the public has an important
interest. Restoration of the Everglades involves many complicated
issues involving ecosystem restoration, other water-related needs of
the region, novel scientific and technical information and technology,
and adaptive management. The final regulations envision a comprehensive
process to involve the public, and the agencies that represent them, in
important decisions involved in implementing the project.
In general, the programmatic regulations envision that the goals
and purposes of the Plan will be achieved through the development of
project-specific and system-wide measures. Project specific measures
include but are not limited to Project Implementation Reports, Project
Cooperation Agreements, Pilot Project Technical Data Reports, and
Operating Manuals. The more generally applicable system-wide measures
include, but are not limited to, the development of guidance memoranda,
the Master Implementation Sequencing Plan, interim goals for evaluating
the restoration success of the Plan, and interim targets for evaluating
progress towards achieving other water-related needs of the region,
including water supply and flood protection. The interim goals for
evaluating the restoration success of the Plan and interim targets for
other water-related needs are of special significance. They establish
incremental targets to evaluate progress toward the expected level of
performance of the Plan and are used to monitor overall progress toward
meeting the goals and purposes of the Plan. Taken together, the project
specific and system-wide measures form the foundation of the Plan and
are critical to the successful restoration of the South Florida
ecosystem.
The South Florida ecosystem is a nationally and internationally
unique and important natural resource. It is also a resource in peril,
having been severely affected by human activities for over a hundred
years. The Central and Southern Florida Project extends from south of
Orlando to the Florida Keys and is composed of a regional network of
canals, levees, water storage areas, and water control structures.
First authorized by Congress in 1948, the project serves multiple
objectives. The objectives of the project include flood control,
regional water supply for agricultural and urban areas, prevention of
salt water intrusion, water supply to Everglades National Park,
preservation of fish and wildlife, recreation, and navigation. While
fulfilling these objectives, the project has had unintended adverse
effects on the unique natural environment that constitutes the
Everglades and South Florida ecosystem. In 1996, the Army Corps of
Engineers was directed to develop a comprehensive plan to restore,
preserve, and protect South Florida's natural ecosystem while providing
for the water-related needs of the region, including flood control, the
enhancement of water supplies, and other objectives of the Central and
South Florida Project. The resulting plan, which was submitted to
Congress on July 1, 1999, is called the Comprehensive Everglades
Restoration Plan.
The overarching goal of the Plan is the restoration, preservation,
and protection of the South Florida ecosystem while providing for other
water-related needs of the region, such as flood protection and water
supply. As submitted to Congress, the Plan contained 68 major
components that anticipated the creation of approximately 217,000 acres
of reservoirs and wetland-based water treatment areas, wastewater reuse
plants, seepage management, and the removal of levees and canals in
natural areas. These components vastly increase storage and water
supply for the natural system, as well as for urban and agricultural
needs, while continuing to fulfill the original objectives of the
existing Central and Southern Florida Project. The Comprehensive
Everglades Restoration Plan will restore more natural flows of water,
including sheet flow; improve water quality; and
[[Page 64201]]
establish more natural hydroperiods in the South Florida ecosystem.
Improvements to fish and wildlife habitat, including those that benefit
threatened and endangered species, are expected to occur as a result of
the restoration of hydrologic conditions. This will promote the
recovery of native flora and fauna, including threatened and endangered
species.
In enacting section 601 of WRDA 2000, Congress approved the
Comprehensive Everglades Restoration Plan as a framework for
modifications to the Central and Southern Florida Project. Section 601
of WRDA 2000 contains a variety of provisions associated with
implementation of the Comprehensive Everglades Restoration Plan,
including an authorization for the construction of four pilot projects
and ten initial projects of the Comprehensive Everglades Restoration
Plan.
Section 601(h) of WRDA 2000 states, ``the overarching objective of
the Plan is the restoration, preservation, and protection of the South
Florida ecosystem while providing for other water-related needs of the
region, including water supply and flood protection.'' This section
directs that the Plan be implemented to ensure the protection of water
quality in, the reduction of the loss of fresh water from, and the
improvement of the environment of the South Florida Ecosystem.
Implementation of the Plan also seeks to achieve and maintain the
benefits to the natural system and human environment described in the
Plan.
Section 601(h)(2) of WRDA 2000 requires the President and Governor
to enter into a binding agreement ensuring that the water generated by
the Plan will be made available to the natural system. The President
and Governor signed this agreement on January 9, 2002. The agreement
specifies that the State will ensure by regulation, or other
appropriate means, that water made available by each project in the
Plan will not be permitted for a consumptive use or otherwise made
unavailable by the State until such time as sufficient reservations of
water for the restoration of the natural system are made under State
law in accordance with the Project Implementation Report for that
project and consistent with the Plan. This agreement also specifies
that the State will monitor and assess the continuing effectiveness of
reservations as long as the project is authorized in order to achieve
the goals and objectives of the Plan.
Section 601(h)(3) of WRDA 2000 requires that the Secretary of the
Army, after notice and opportunity for public comment, and with the
concurrence of the Governor of Florida and the Secretary of the
Interior, and in consultation with the Miccosukee Tribe of Indians of
Florida, the Seminole Tribe of Florida, the Administrator of the
Environmental Protection Agency, the Secretary of Commerce, and other
Federal, State, and local agencies, issue programmatic regulations
within two years of the date of enactment of WRDA 2000 to ensure that
the goals and purposes of the Plan are achieved. This regulation is
promulgated in furtherance of these statutory requirements.
Section 601(h)(4) of WRDA 2000 describes the project specific
assurance requirements for Project Implementation Reports, Project
Cooperation Agreements, and Operating Manuals. Finally, section
601(h)(5) contains a savings clause that provides protection for
existing legal sources of water that will be eliminated or transferred
due to project implementation and provides for maintenance of the
levels of service for flood protection that were in existence on the
date of enactment of WRDA 2000 and in accordance with applicable law.
II. Process for Developing the Programmatic Regulations
The Department of the Army developed the programmatic regulations
through an open and inclusive process that involved numerous meetings,
briefings, and discussions with other Federal, State, and local
agencies; the Miccosukee Tribe of Indians of Florida and the Seminole
Tribe of Florida; agricultural, environmental, urban utilities,
recreational, and urban interest groups; and the public. Briefings on
the programmatic regulations were provided to the Governing Board of
the South Florida Water Management District and its Water Resources
Advisory Commission and the South Florida Ecosystem Restoration Task
Force and its Working Group. In addition, programmatic regulations web
pages were developed and posted on the Comprehensive Everglades
Restoration Plan web site (http://www.evergladesplan.org). The web site was
used to disseminate information about the programmatic regulations and
to provide a place for individuals and organizations to submit comments
electronically during the development of the programmatic regulations.
This was designed to identify the major concerns of the agencies and
various groups, prior to publishing the proposed regulations and
soliciting formal public comment.
The Army held an opening round of meetings with agencies, interest
groups, and the public in May and June 2001. The purpose of these
meetings was to discuss the process that would be used to develop the
programmatic regulations and to solicit comments on the major issues
and concerns that should be addressed in developing the regulations.
Following this initial round of meetings, the Army developed a
draft outline of the programmatic regulations. We then held a second
round of meetings in September and October 2001 with agencies, interest
groups, and the public to solicit comments on the outline. We also
consulted with the Miccosukee Tribe of Indians of Florida and the
Seminole Tribe of Florida, and sought their comments on the draft
outline.
After the second round of meetings, we developed an initial draft
of the programmatic regulations. We distributed this initial draft to
the public on December 28, 2001, and allowed informal public comment
until February 15, 2002. We then held meetings with agencies, tribes,
and interest groups, to discuss the initial draft. We also received
written comments on the initial draft that were posted on the
programmatic regulations web site. In addition, the Water Resources
Advisory Commission formed a subcommittee on the programmatic
regulations. The subcommittee met several times to discuss issues
concerning the initial draft and potential ways of addressing these
issues. The South Florida Ecosystem Restoration Task Force also met
several times after the release of the initial draft to discuss the
programmatic regulations.
The proposed rule was published in the Federal Register on August
2, 2002 and the public was allowed to submit comments on the
regulations until October 1, 2002. During the comment period, we held a
public meeting in Miami on September 10, 2002 and a public meeting in
West Palm Beach on September 19, 2002. We also consulted with the
Miccosukee Tribe of Indians of Florida and the Seminole Tribe of
Florida and held a number of informal meetings with interested groups.
The comments submitted on the proposed rule and the transcripts of the
two public meetings were posted on the programmatic regulations web
site after the close of the public comment period.
On February 6, 2003, the Council for Environmental Quality hosted a
public meeting in Washington. The purpose of the public meeting, which
was facilitated by the Council on Environmental Quality, was to provide
an opportunity for interested parties to clarify comments filed on the
proposed rule. Representatives of the Department
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of the Army, the Department of the Interior, and the State, as well as
representatives of other Federal agencies were in attendance to listen
to these views. Additionally, the meeting afforded attendees an
opportunity to engage directly with each other. This open dialogue was
especially useful in developing a thorough understanding of the
parties' views.
This final rule was developed after considering all of the
information received at the meetings, as well as written comments that
were received from agencies, interest groups, and the public.
III. Discussion of Final Rule
We received approximately 820 comments on the proposed regulations
issued on August 2, 2002. Of these comments, approximately 800 were
individual or form letters from the public. In general, these letters
requested that the proposed regulations be revised to: give the
Department of the Interior a greater voice in approving CERP documents
and participating in RECOVER; to strengthen the independence of the
independent scientific review panel to ensure that its reviews are
objective, and to incorporate the interim goals in the final
regulations. We also received approximately 25 letters from various
types of organizations, members of Congress, Federal, State, and local
agencies, the Miccosukee Tribe of Indians of Florida, and the Seminole
Tribe of Florida. These letters included detailed comments on the
recommendations and specific proposals for revisions in a number of
areas.
All of the comments were generally supportive of the effort to
issue final regulations. We have carefully considered all of these
comments in developing today's final rule. The following paragraphs
include a description of the significant issues raised by these
comments and a discussion of how these issues were addressed in the
final regulations. In reviewing these comments, we sought to reconcile
different points of view and to find consensus solutions to common
concerns. In a few instances this was not possible because the parties
simply held diametrically opposing views. In these instances, our
decisions on proposed revisions were guided by our judgment as to what
would best fulfill Congressional intent with respect to the goals and
purposes of CERP. The final rule remains similar to the proposed rule
in organization and structure, but contains the substantive and
editorial changes that were made to address the issues raised by the
comments. The Army is confident that these final programmatic
regulations provide an excellent framework for the implementation of
CERP as envisioned by Congress.
IV. Discussion of Comments
A. Amount of Detail in the Proposed Regulations
A number of commenters shared their views on the appropriate level
of detail that should be contained in the regulations. Some commenters
believed that the programmatic regulations should be very detailed and
directive in terms of specific procedures and outcomes. Others believed
that the programmatic regulations should be process-oriented and
provide a general framework for implementing CERP. A few of these
commenters also expressed concern that the Federal regulations not
infringe on the sovereignty of the State of Florida or its right to
allocate its water resources. Others sought to ensure that the
regulations safeguard the Federal interest and investment in
restoration, preservation, and protection of the South Florida
ecosystem, including Federal properties within South Florida, such as
national parks and wildlife refuges.
The final regulations attempt to recognize these diverse views. We
made a number of changes to the proposed rule in order to clarify the
procedures and processes specified in the regulations to ensure that
the goals and purposes of the Plan are achieved. As in the proposed
rule, the final regulations also call for the development of detailed
guidance memoranda in the future to specifically address issues of
system-wide import. In striking a balance between process and
specificity, we strove to address those matters that could be
specifically dealt with now while avoiding being so prescriptive that
we would lose the flexibility to respond to new technical and
scientific information revealed during implementation of the Plan.
B. Guidance Memoranda
A number of commenters raised concerns about the guidance memoranda
described in the proposed regulations. These concerns varied but, in
general, related to either the substantive matters addressed in the
guidance memoranda or the process for finalizing the guidance
memoranda. Some commenters felt that the concurrence provisions
contained in the proposed regulations would delay finalizing the
guidance memoranda. Others felt that the concurrence provisions in the
proposed regulations did not give the Secretary of the Interior or the
Governor of Florida an appropriate role in approving the guidance
memoranda because it appeared that the Secretary of the Army could
finalize these documents after giving good faith consideration to
comments from the Department of the Interior and the Governor,
notwithstanding the fact that either or both officials had concerns
about finalizing the regulations.
Some commenters believed that the scheduled completion dates for
developing the guidance memoranda were unrealistic and should be
changed. Others expressed the view that issues addressed in the
guidance memoranda should be covered in the programmatic regulations.
In addition, they were concerned that the guidance memoranda did not
have the same legal status as the programmatic regulations and thus
would not have the same legal import. These commenters stated that if
the material intended for inclusion in the guidance memoranda was not
included in the final rule then the guidance memoranda should be
included in the programmatic regulations at the next revision. Several
commenters also believed that the proposed regulations gave an
inappropriate role to the South Florida Water Management District in
the development of the guidance memoranda. One commenter requested that
an additional guidance memorandum be developed to provide a procedure
for determining if implementation of a project will cause the
elimination or transfer of existing legal sources of water. The
Seminole Tribe commented that ``existing legal source'' of water is a
new concept not found in Florida statutes or regulations. The Tribe
requested that the programmatic regulations set up a process for
defining ``existing legal source'' of water and addressing how an
``existing legal source'' of water would be replaced to comply with the
savings clause.
The comments reflected a difference of opinion with respect to
whether certain issues should be addressed in the guidance memoranda or
the programmatic regulations and whether the Department of the Interior
and the Governor of Florida should have concurrence over the guidance
memoranda, as they do with regard to the programmatic regulations. Some
of the commenters believe that the issues that are proposed for
discussion in the guidance memoranda should be included in the
regulations because they cover processes and matters of system-
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wide applicability. Alternatively, they believe that if guidance
memoranda must be developed, they should later be incorporated into the
regulations. These commenters believe that for these reasons the
Secretary of the Interior and the State of Florida should have a
concurrence right in the guidance memoranda regardless of whether the
guidance memoranda are included in the regulations. Other commenters
expressed the view that guidance memoranda should not be included in
the regulations because they address technical or detailed matters
instead of the system-wide procedural matters Congress intended would
be addressed in the programmatic regulations. These commenters believed
that it would be inappropriate to give the Secretary of the Interior
and the Governor of Florida a concurrence right over these documents
because the statute authorizing CERP provides for concurrence in the
programmatic regulations only.
The final regulations contain revisions in response to these
comments. In attempting to address the views of those who commented
that the Secretary of the Interior and Governor of Florida should be
given a greater role in the development of the guidance memoranda and
that the South Florida Water Management District had an inappropriate
role in developing the guidance memoranda, the final rule clarifies
that the South Florida Water Management District and the Corps of
Engineers work together in developing the guidance memoranda but the
final approval is by the Secretary of the Army, after public notice and
comment and with the concurrence of the Secretary of the Interior and
the Governor of Florida. We believe that this change in the regulations
assures that the South Florida Water Management District plays an
important role in the development of the guidance memorandum, but
preserves the ability of the Secretary of the Army to make a final
decision on the guidance memorandum with the concurrence of the
Secretary of the Interior and the Governor.
The approval process for the guidance memoranda parallels the
statutory concurrence process for the programmatic regulations. We
deleted the language in the proposed regulations that said the Army
would give ``good faith consideration'' to the concurrence or non-
concurrence statements of the Secretary of the Interior and the
Governor before approving the guidance memoranda. Our intent is to
issue guidance memoranda that have been concurred in by the Secretary
of the Interior and the Governor. We agree that the old language in the
proposed regulations did not communicate adequately this intent.
Instead, it suggested that the Army simply had to fulfill a ministerial
coordination requirement by asking the Secretary of the Interior and
the Governor whether they concurred or non-concurred in the guidance
memorandum. This language did not convey the Army's intent to actively
seek the concurrence of the Secretary of the Interior and the Governor
prior to approving the guidance memoranda. The new language gives the
Secretary of the Interior and the Governor the same concurrence
opportunity they have on the programmatic regulations and assures that
they have an appropriate role in the Department of the Army's adoption
of these important documents. While concurrence or non-concurrence on
the six guidance memoranda in Sec. 385.5(b) is not required by law and
will require additional time to fulfill, we believe it is appropriate
to provide for this process because of the significance of these
documents.
We believe that the public should have an opportunity to review and
comment on the guidance memoranda because of their significance.
Accordingly, the final regulations state that the public will be
advised by notice in the Federal Register when the guidance memoranda
are ready for review and comment. The final rule requires that the
guidance memoranda should be developed within a year of the effective
date of the programmatic regulations with the concurrence of the
Secretary of the Interior and the Governor.
We have determined that the guidance memoranda should not be
included in the programmatic regulations at this time for several
reasons. First, they are still being developed, second, they will be
very technical, and third, they will provide internal guidance to the
agencies implementing CERP. This decision is consistent with the view
of commenters who felt that including the guidance memoranda in the
programmatic regulations was incompatible with structured, formal rule-
making processes. These commenters felt that rulemaking processes would
not accommodate recurring revisions to published technical documents,
like the guidance memoranda, which will require periodic changes to
accommodate new information. These commenters were concerned that if
guidance memoranda were included in these regulations, every revision
of them would require us to initiate a rulemaking process. While we
determined that the guidance memoranda should not be included in the
programmatic regulations at this time, we preserve the opportunity to
include the guidance memoranda in the programmatic regulations during
the next review and revision of the programmatic regulations.
The final regulations no longer contemplate that a separate
guidance memorandum will be developed for the system-wide evaluation of
Project Implementation Report alternatives by RECOVER. We concluded
that this subject should be addressed in the guidance memorandum for
the formulation and evaluation of alternatives for Project
Implementation Reports and that a separate guidance memorandum on this
subject was unnecessary.
The final regulations also require the development of an additional
guidance memorandum that will be used by agency personnel to identify
if an elimination or transfer of ``existing legal sources of water''
will occur as a result of implementation of the Plan. This guidance
memorandum will ensure the fulfillment of the savings clause
requirements of section 601 (h)(5)(a) of WRDA 2000 that are designed to
ensure that ``existing legal sources of water'' are preserved. There
was general agreement among commenters that a definition is required
for the phrase, ``existing legal sources of water'' but there was wide
disagreement among the commenters about what the phrase actually means
or who determines what an ``existing legal source of water'' is. The
term is not defined in WRDA 2000 or elsewhere in Federal or Florida
State law. Some commenters felt the term should include all water in
the South Florida ecosystem that was not discharged to tide at the time
WRDA 2000 was enacted. Other commenters emphasized that the term used
in the statute, ``existing legal sources'' is a broad term which
indicates that all water in the South Florida ecosystem should be
covered by the requirements of the savings clause. Several commenters
felt that the determination of what constitutes an ``existing legal
source of water'' is not a decision for the Secretary of the Army to
make. They argued that the Secretary of the Army should defer to the
State of Florida on this issue because the determination of what
constitutes an existing legal source of water involves a matter of
state law. The new guidance memorandum contemplated in the regulations
will establish procedures for identifying what constitutes ``an
existing legal source of water'' and for determining
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when an existing legal source of water has been eliminated or
transferred.
C. Goals and Purposes of the Plan
The comments reflected different views on the goals and purposes of
the Plan. A number of commenters felt the proposed regulations did not
place enough emphasis on the restoration objectives of the Plan and
recommended that the regulations be revised to clearly state that the
restoration objectives of the Plan are a priority. Another commenter
believed that the language in the proposed regulations concerning the
goals and purposes of the Plan was vague. This commenter suggested that
the language be replaced with the description of the goals and
objectives of the Plan contained in the April 1999 ``Final Integrated
Feasibility Report and Programmatic Environmental Impact Statement.''
Finally, several commenters believed that the regulation should include
all of the goals and purposes of the Plan, including providing for
other water-related needs of the region.
To respond to these comments we have included a definition of the
goals and purposes of the Plan in the final regulations that follows
the language of WRDA 2000. This definition specifies that the
overarching goal of the Plan is the restoration, preservation, and
protection of the South Florida ecosystem while providing for other
water-related needs of the region, including water supply and flood
protection. We believe the open and collaborative process set forth in
these regulations for the implementation of the Plan provides the
greatest assurance that all the goals and the purposes of the Plan will
be achieved. This regulation emulates the successful, open and
collaborative process that produced the Comprehensive Everglades
Restoration Plan and we are confident that these same processes will
ensure that the goals and purposes of the Plan are fulfilled as
intended by Congress.
Several commenters also expressed the view that the proposed
regulations should not have tied performance of the Plan, and
particularly the development of interim goals, to the model run
identified as D-13R in the April 1999 ``Final Integrated Feasibility
Report and Programmatic Environmental Impact Statement.'' These
commenters maintained that implementation modeling conducted after
completion of the feasibility report demonstrated the potential for
improving the Plan with regard to the restoration of the ecosystem.
We have removed the references to D-13R in the final regulations
because we agree that it may be possible to produce ecosystem
restoration benefits beyond those contemplated in D-13R. We will
further evaluate the performance of the Plan in accordance with the
adaptive management provisions of the regulations to determine whether
it is possible to realize any improvements in the performance of the
Plan with regard to ecosystem restoration while providing for other
water-related needs of the region. We will make adjustments to the Plan
to the extent these improvements can be realized consistent with the
overall goals and purposes of the Plan. As indicated, we have deleted
the reference to D-13R in the hope that it may be possible to improve
the Plan's performance with respect to ecosystem restoration consistent
with the statutory and budgetary framework approved by Congress.
D. Defining Restoration
Several commenters expressed concern about the definition of
restoration contained in the proposed regulations. Some commenters felt
that restoration should be defined in terms of hydrologic and ecologic
targets, not the level of performance contained in the April 1999 Final
Integrated Feasibility Report and Programmatic Environmental Impact
Statement'' as was contemplated in the proposed regulations. They
believe that implementing the Plan in accordance with hydrologic and
ecologic targets, and making adjustments as necessary through adaptive
management, is a more effective way to ensure that system-wide
restoration occurs. In particular, the Everglades Coalition commented
that, ``* * * the yellow book provides only a framework for
restoration, and does not clearly describe the essential ecological
characteristics of a sustainable restored Everglades. * * * It is
necessary to keep the definition of restoration * * * based on
ecological necessity and not anticipated performance. This structure is
necessary for the adaptive management process to be successful in
making meaningful improvements to the plan.'' Another commenter stated
that the definition of restoration must clearly specify that
restoration is ``an absolute priority above all others.''
Other commenters expressed the view that the definition of
restoration must take into account certain relevant provisions of WRDA
2000. These commenters point out that the purpose of the Plan was not
to provide for the restoration of the South Florida ecosystem without
regard to other considerations. They note that restoration is not an
open-ended abstract term; WRDA 2000 states that the Plan must take into
account ``the other water-related needs of the region,'' and contains a
prohibition against eliminating or transferring ``existing legal
sources of water'' until new sources of water of comparable quantity
and quality are available to replace the water that is lost as a result
of implementation of the Plan. These commenters pointed out that the
definition of restoration must recognize that Congress authorized the
Plan as a framework for restoring the South Florida ecosystem and that
the restoration that actually occurs is a result of the specific
projects that Congress later authorizes in fulfillment of the Plan.
Other commenters believed that the definition should recognize the
important role that ``getting the water right'' plays in restoration.
Getting the water right involves delivering water to the ecosystem in
the right quantity and quality at the right time and place. Another
commenter held a somewhat similar view, believing that the definition
should emphasize the importance of hydroperiod and water quality in
fulfilling the restoration objective since natural system conditions
are a result of water quality and hydroperiod conditions.
Other commenters expressed the view that the definition of
restoration in the proposed regulations was not scientifically
credible. These commenters believed that to be credible from a
scientific perspective, the definition of restoration must take into
account other considerations that are relevant to the ecological
condition of the South Florida ecosystem. For example, state and local
restoration and water quality programs affect the South Florida
ecosystem as well. Additionally, some commenters pointed out that there
is no consensus among scientists about the specific ecological
parameters that constitute successful ``restoration.'' As an example,
there is no agreement on what the goal should be for the population of
specific species of plants, fish, or birds.
To some extent, the disagreement surrounding the definition of
restoration reflects the underlying concern of affected parties that
the definition of restoration will not take their interests into
account. Certain parties are concerned that if the definition of
restoration does not assign a proper role to science in fulfilling the
objectives of the Plan, the implementation of the Plan will be driven
by political compromises. These parties are concerned that as Federal
and State governments move forward with implementation of the Plan, the
restoration goals of the Plan
[[Page 64205]]
will be preempted by water supply and flood protection needs. In this
regard, the Natural Resources Defense Council urged that the
programmatic regulations must ``preclude the achievement of water
supply and flood protection goals at the expense of restoration
goals.'' Other commenters are concerned that the other water-related
goals of the region will be ignored in an effort to advance an elusive
and constantly changing vision of restoration favored by scientists,
instead of the Plan approved by Congress. All commenters emphasized the
importance of developing an appropriate definition of restoration so
that CERP projects are properly sequenced and appropriations wisely
spent.
The final regulations contain a new definition of restoration that
responds to these comments. The regulations define restoration as the
recovery and protection of the South Florida ecosystem so that it once
again achieves and sustains the essential hydrological and biological
characteristics that defined this ecosystem in an undisturbed
condition. This definition acknowledges that, as authorized by
Congress, the restored South Florida ecosystem will be significantly
healthier than the current system but will be smaller and somewhat
differently arranged than the historic ecosystem. Also, there may be
different degrees of restoration in different areas of the ecosystem.
The irreversible physical changes made to the South Florida ecosystem
make a complete return to the historic ecosystem impossible. However,
the restored ecosystem will have recovered those essential hydrological
and biological characteristics that defined the undisturbed South
Florida ecosystem and made it unique among the world's wetlands
systems.
The new definition of restoration recognizes that the restoration
goal of the Plan is to achieve a healthy and functioning ecosystem that
once again exhibits the essential characteristics of the undisturbed
South Florida ecosystem. The definition acknowledges that, as
authorized by Congress, the restored ecosystem will be different than
the historic ecosystem. In so doing, the definition affords flexibility
to allow for adaptive management and the accommodation of other water-
related needs of the region, as the Plan is implemented through
individual projects specifically authorized by Congress.
The definition of restoration recognizes implicitly that science
will be the foundation of restoration, but it also assumes, as noted
throughout the programmatic regulations, that in all phases of
implementation of the Plan both restoration and the other goals and
purposes of the Plan should be achieved. The definition also recognizes
that we must act within the legislative framework that has been
approved by Congress in WRDA 2000 and later may be approved by Congress
in future authorization acts.
E. Amount of Water Provided for Restoration
Some commenters expressed the view that the regulations must
include a statement that new water generated by the Plan will be
reserved for the natural system on an 80%-20% basis. These commenters
note that the report of the Senate Committee on Environment and Public
Works on WRDA 2000 (Senate Report No. 106-362) states:
The Plan contains a general outline of the quantities of water
to be produced by each project. According to the Army Corps, 80
percent of the water generated by the Plan is needed for the natural
system in order to attain restoration goals, and 20 percent of the
water generated for use in the human environment. * * * Subject to
future authorizations by Congress, the committee fully expects that
the water necessary for restoration, currently estimated at 80
percent of the water generated by the Plan, will be reserved or
allocated for the benefit of the natural system (Emphasis added).
These commenters believed that the 80%-20% ratio should be set
forth in the regulations as a generalized planning goal for reserving
or allocating new water to the natural system. They are concerned that
the 80%-20% ratio was not identified in the proposed regulations as a
planning goal. On a different but related note, several commenters felt
that a water budget should be developed for the South Florida ecosystem
to ensure that the restoration goals of the Plan are achieved.
Other commenters observed that the 80%-20% ratio was merely the
initial estimate of the new water that would be produced by the Plan
and therefore, could be allocated or reserved for the benefit of the
natural system. These commenters maintain that the goal of the Plan is
to provide whatever water is needed for restoration of the natural
system, irrespective of the 80%-20% ratio. These commenters point out
that individual components of the Plan may produce amounts of water
different from this initial estimate. In fact, some commenters pointed
out that the 80%-20% ratio was part of a scenario called D-13R4, which
was not included in the framework Plan (D-13R) authorized by Congress.
We understand the desire of the commenters to assure sufficient
water will be allocated or reserved for the benefit of the natural
system. To accomplish this result, we believe that it is necessary to
preserve the ability to adapt to new information as the Plan is
implemented. Therefore, the regulations do not contemplate the
allocation of water on a rigid 80%-20% basis, either system-wide or
project-by-project. Instead, the final regulations ensure that adequate
water will be allocated or reserved for the benefit of the natural
system without regard to this ratio by requiring that each Project
Implementation Report evaluate and identify water to be reserved for
the natural system and made available for other water-related needs of
the region, and that the Plan itself be continually evaluated through
adaptive management to assure that adequate water is allocated or
reserved on a system-wide basis.
The final rule also provides that the Corps of Engineers and the
South Florida Water Management District will determine the total
quantity of water that is expected to be generated by implementation of
the Plan, including the quantity expected to be generated for the
natural system to attain restoration goals as well as the quantity
expected to be generated for use in the human environment, and will
periodically update that estimate, as appropriate, based upon changed
or unforeseen circumstances, new scientific and technical information,
new or updated modeling, and congressionally authorized projects or
modifications to the Plan. In addition, the final regulations envision
that a water budget for the Plan will be developed and disseminated
annually to the public. These regulatory provisions will ensure that
adequate water will be reserved or allocated to the natural system as
intended by Congress.
F. Independent Scientific Review and External Peer Review
A number of commenters were concerned that the proposed regulations
did not provide for the establishment of an independent scientific
review panel. They noted that section 601(j) of WRDA 2000 requires that
the Secretary of the Army, the Secretary of the Interior, and the
Governor, in cooperation with the Task Force establish an independent
scientific review panel convened by a body, such as the National
Academy of Sciences, to review the Plan's progress toward achieving the
natural system restoration goals of the Plan. These commenters feel
that the panel must operate independently of the Corps of
[[Page 64206]]
Engineers, the State, and the Department of the Interior and believe
that the programmatic regulations should address how the implementing
agencies would work with the panel. One commenter also felt that the
proposed regulations did not provide an appropriate role for the Task
Force in the establishment of the independent scientific review panel.
The Department of the Army embraces the use of independent
scientific review and external peer review. The successful
implementation of CERP requires that appropriate decisions be made
about significant scientific and technical issues. These extremely
technical, often controversial, issues will be presented in various
reports and documents generated by numerous sources, including the
Corps of Engineers, the South Florida Water Management District,
Everglades National Park, the Fish and Wildlife Service, the Florida
Fish and Wildlife Conservation Commission, and various Federal, State,
and local agencies. Independent scientific review and external peer
review will ensure that the decisions made in implementing CERP are
based on appropriate data and sound science that is clearly presented
to decision makers.
There was some confusion evident in comments and public meetings
regarding the panel that will be established to perform the section
601(j) functions and other independent scientific review, particularly
the standing panel currently used by the South Florida Ecosystem
Restoration Task Force (Task Force). In February 1999, the Task Force
endorsed ``the establishment of an ongoing outside scientific review
panel * * * as an essential component to ensure an effective adaptive
management process for South Florida Ecosystem restoration.'' In
September 1999, in fulfillment of the Task Force's resolution, the
Department of the Interior entered into a five-year cooperative
agreement with the National Academy of Sciences (NAS) to establish the
Committee on Restoration of the Greater Everglades Ecosystem (CROGEE).
CROGEE provides scientific advice to the Task Force and its member
agencies and that the Committee will review and make recommendations on
the scientific and technical aspects and elements relating to the South
Florida ecosystem.
The section 601(j) panel will be independent of CROGEE or any other
panel. Its only mission will be to carry out section 601(j).
Acting on a proposal from the Department of the Army, the Secretary
of the Army, the Secretary of the Interior, and the Governor, in
consultation with the South Florida Ecosystem Restoration Task Force,
agreed to designate the National Academy of Sciences to convene the
initial independent scientific panel that will perform the tasks
required by Section 601(j) of the Water Resources Development Act of
2000. The final regulations contain new language that identifies the
National Academy of Sciences as the entity that will convene the
initial independent scientific review panel. These regulations also
acknowledge that the South Florida Ecosystem Restoration Task Force has
played a role in choosing the National Academy of Science as the
initial organization to convene the panel, and the Task Force will play
a role in the establishment of the panel. The final regulations state
that we will enter into an agreement with the National Academy of
Sciences to convene the independent scientific review panel. This
agreement shall be for a period of five years with options for
extensions in five-year increments. The final regulations include a
statement recognizing that independent scientific review is crucial for
ensuring that the best available science is used in the implementation
of the Plan. The regulations recognize the continuing role of the Task
Force to consult on decisions to exercise the option to extend the
agreement. The regulations recognize the continuing role of the Task
Force in designation of the organization to convene future panels and
to consult on establishment of the panel upon expiration of the initial
agreement.
The final regulations state that the Secretary of the Army, the
Secretary of the Interior, and the Governor shall finalize any
agreements and procedures necessary to provide for the operation and
funding of the independent scientific review panel and establish this
panel within six months of the effective date of the programmatic
regulations.
The final regulations set forth the expectation that the National
Academy of Sciences will use established practices for assuring the
independence of members and that the review panel will include members
reflecting a balance of the knowledge, training, and experience
suitable to comprehensively review and assess the Plan's progress
towards achieving restoration goals. WRDA 2000 provides very specific
direction that the panel is ``to review the Plan's progress toward
achieving the natural system restoration goals of the Plan.'' This
specific requirement will be the focus of the agreement and the mission
of the independent scientific review panel. The independent panel's
tasks include those activities that are necessary to review the Plan's
progress towards achieving the restoration goals of the Plan. In
addition, in accordance with WRDA 2000, the panel will produce a
biennial report to Congress, the Secretary of the Army, the Secretary
of the Interior, and the Governor that includes an assessment of
ecological indicators and other measures of progress in restoring the
ecology of the natural system, based on the Plan.
To further insure the independence of the panel, the regulations
provide that the panel will not be assigned, and may not accept, other
tasks, nor may it provide advice on other matters to any entity, public
or private. Its sole mission is to review the Plan's progress toward
achieving the natural system restoration goals of the Plan and to
produce the section 601(j) report.
The final regulations provide that the agreement with the section
601(j) panel will specifically recognize that the agencies may provide
for other independent scientific panels and peer review to address
specific scientific or technical questions. The regulations provide for
an external peer review process to review documents, reports,
procedures, or to address specific scientific or technical questions or
issues. Draft Pilot Project Technical Reports and draft assessment
reports are specifically designated to be externally peer reviewed.
G. Restoration Coordination and Verification (RECOVER)
Many comments focused on the role of RECOVER in implementing the
Plan. Some of the commenters felt that the responsibilities of RECOVER
were not clearly identified in the proposed regulations. They suggested
that these responsibilities should be organized according to three
major missions `` assessment, evaluation, and planning. Another
commenter felt the final regulations should clearly state that RECOVER
is not an independent body but that it is instead an interagency group
that prepares work products for consideration by others. Some
commenters believe that the final regulation should emphasize that
RECOVER is composed of agency personnel with scientific expertise.
Several commenters believed that the Department of the Interior should
have a co-leadership role over RECOVER along with the Corps of
Engineers and the South Florida Water Management District.
[[Page 64207]]
RECOVER's origins trace back to the April 1999 ``Final Integrated
Feasibility Report and Programmatic Environmental Impact Statement.''
RECOVER is an interdisciplinary, interagency scientific and technical
team that was designed to perform system-wide analyses. In reviewing
the comments on the proposed regulations, we felt that some
misunderstanding might exist concerning the role of RECOVER. For
example, some commenters suggested that RECOVER should be an
independent body because independent science plays an important role in
implementing the Plan. While RECOVER is a science-based group because
many of its members possess scientific expertise, it is not an
independent agency. It is an interagency group consisting of members
from governmental entities The role of RECOVER is to promote an
integrated view within the implementing agencies on matters relevant to
the implementation of the Plan in order to ensure that the goals and
purposes of the Plan are achieved. Independent scientific research will
be used to gain perspectives on these issues from outside parties and
will be provided by entities other than RECOVER.
The final regulations recognize that RECOVER is an existing,
presently functioning interagency team. The final regulations are
consistent with the description of RECOVER in the Plan and envision
that RECOVER will play an important role in ensuring that a system-wide
perspective is applied and that the best available scientific and
technical information is used during the development, implementation,
and evaluation of the Plan. The final regulations address a number of
issues. They recognize that the Corps of Engineers and the South
Florida Water Management District will oversee the activities of
RECOVER. The final regulations also identify the members of the RECOVER
Leadership Group, which includes the program managers from the Corps of
Engineers and the South Florida Water Management District, the
Environmental Protection Agency, the National Oceanic and Atmospheric
Administration, the U.S. Fish and Wildlife Service, the U.S. Geological
Survey, Everglades National Park, the Miccosukee Tribe of Indians of
Florida, the Seminole Tribe of Florida, the Florida Department of
Agriculture and Consumer Services, the Florida Department of
Environmental Protection, and the Florida Fish and Wildlife
Conservation Commission. The diverse membership of the Leadership Group
assures that the views of Federal agencies, State agencies, and Tribes
are appropriately represented. The final regulations outline a series
of specific scientific and technical duties RECOVER will perform to
assist the Corps of Engineers and the non-Federal sponsors in achieving
the goals and purposes of the Plan, particularly restoration of the
natural system. We have grouped these duties under the three major
missions of RECOVER--assessment, evaluation, and planning/integration
activities.
Again, the final regulations indicate that RECOVER is an
interagency, interdisciplinary, scientific and technical team. The
regulations state that the documents prepared by RECOVER are to be
provided to the Corps of Engineers and the South Florida Water
Management District for consideration as they carry out their
responsibilities in implementing the Plan. The regulations specify that
the Corps of Engineers and the SFWMD will consult with other Federal
agencies, state agencies, local agencies and Tribes, as they consider
the information that is provided by RECOVER.
Several commenters expressed the view that RECOVER is an advisory
body that is subject to the Federal Advisory Committee Act (FACA). We
concluded that FACA does not apply to RECOVER. FACA contains an
exception for meetings ``held exclusively between Federal officials and
elected officers of State, local, and tribal governments,'' where those
meetings ``are solely for the purposes of exchanging views,
information, or advice relating to the management or implementation of
Federal programs established pursuant to public law that explicitly or
inherently share intergovernmental responsibilities or
administration.'' Unfunded Mandates Act, Public Law 104-4, 109 Stat.
48, 65 (1995), 2 U.S.C. 1501, 1534 et seq. RECOVER's meetings and
activities fall within this exception. Another commenter noted that
FACA does not apply to the South Florida Ecosystem Restoration Task
Force, pursuant to WRDA 1996 and proposed that RECOVER be made an
advisory committee to the South Florida Ecosystem Restoration Task
Force to avoid the application of FACA. Because we have determined FACA
does not apply to RECOVER's meetings and activities, we do not believe
this action is necessary.
H. Reservation or Allocation of Water for the Natural System
The provisions in the proposed regulations concerning the
reservation or allocation of water for the natural system were of
interest to a number of parties. A brief discussion of the legislative
foundation of these provisions proves helpful in understanding these
comments.
The Plan authorized in WRDA 2000 is a framework plan designed to
improve the distribution of water to the South Florida ecosystem. In
accordance with section 601(f) of WRDA 2000, the Secretary of the Army,
in coordination with the non-Federal sponsor, must prepare a Project
Implementation Report before proceeding with an individual project that
is included in the Plan. Section 601(h)(4)(A) of WRDA 2000 states that
the Project Implementation Report must, among other items, identify the
amount of water to be reserved or allocated for the natural system in
order to provide for the appropriate quantity, timing, and distribution
of water dedicated and managed for the natural system, and comply with
applicable water quality and permitting standards. Section
601(h)(4)(B)(2) of WRDA 2000 specifies that the reservation or
allocation of water for the natural system will be implemented under
State law and must be made before the Department of the Army can
execute a Project Cooperation Agreement for a project.
Several commenters expressed concern about the process for
verifying that a reservation or allocation of water for the natural
system has been made under State law. One commenter believed that the
regulations should clarify the process for determining reservations by
establishing a restoration target of water to be reserved or
established for each area of the ecosystem. Another commenter requested
that the Corps of Engineers develop procedures for verifying that the
reservation or allocation of water identified in the Project
Implementation Report has been executed under State law. Two commenters
believed that the requirement to amend the Project Cooperation
Agreement (PCA) whenever the State revises the reservation limits the
State's discretion to make appropriate reservations under State law.
These commenters also believe that the requirement to revise the PCA is
unnecessary as the State is required to make reservations that are
consistent with the requirements of the President-Governor agreement of
January 9, 2002, and that agreement is specifically enforceable in
court. Both the State of Florida and the South Florida Water Management
District expressed the view that in enacting WRDA 2000, Congress had
not preempted State water law and that the programmatic regulations
should not impede or interfere with Florida water law. Several
commenters
[[Page 64208]]
were concerned that under the proposed regulations, changes to
reservations or allocations of water could be made without the same
congressional and public involvement that occurred for the initial
reservation. Several Senators, while recognizing that reservations may
need to be revised, expressed the view that because Congress approves
projects based on a quantification of water, it also has a
responsibility to ensure that when any change to a reservation of water
occurs, that the Project Cooperation Agreement be changed to account
for de minimus changes or changes consistent with the purposes of the
Plan, or that the change be authorized by Congress.
Many commenters observed that the proposed regulations did not
address the possibility that the actual performance of a project or
project component might not meet the performance expected in the
Project Implementation Report (PIR). As explained, WRDA 2000 requires
that the Secretary not execute a Project Cooperation Agreement until a
reservation or allocation of water for the natural system has been
executed under State law. This raises the potential for problems under
the provisions in WRDA 2000 that require sufficient reservations of
water for the restoration of the natural system to be made under State
law in accordance with the PIR for that project and provisions in the
savings clause of WRDA 2000 that prohibit the elimination or transfer
of existing legal sources of water. The problem arises if the actual
performance of a project does not meet the projections of the water to
be produced by the project or component laid out in the PIR. This led
us to conclude that the final regulations must contain a discussion of
what actions should be taken if a project or component does not perform
as expected. This issue arises because the performance of a project or
component will impact the reservation of the appropriate quantity,
timing, and distribution of water dedicated and managed for the natural
system, and whether a new source of water supply of comparable quantity
and quality has been provided to replace an existing legal source, as
required by the savings clause. The amount of water identified in the
PIR is only a projection and the actual amount of water produced by a
project will only be known when the project has been operated. The
proposed regulations also were designed not to interfere in the State
reservation process while providing, consistent with Congressional
intent, that the reservation remain consistent with the agreements
reached between the State and Federal government in the Project
Cooperation Agreement.
The proposed regulations recognized that reservations or
allocations of water are a State responsibility. We attempted to ensure
that the purpose of CERP reservations were met in the final regulations
by requiring that the Project Cooperation Agreement include a finding
that the required reservation has been made before execution of a
Project Cooperation Agreement and by providing that the parties execute
an amendment to the agreement if there is a change in the reservations.
The final regulations also specify that ``State law'' includes
reservations or allocations of water made by the South Florida Water
Management District or the Florida Department of Environmental
Protection under authority of Florida law. The intent was to preserve
the State's control over its reservation and allocation process while
also protecting the Federal interest in proceeding with the project
only if adequate water had been reserved for the natural system.
In order to clarify our process and provide further assurances to
concerned parties, the final regulations include provisions which state
that prior to the execution of the Project Cooperation Agreement, the
District Engineer will verify that the initial reservation has been
made by the State, and that the District Engineer's verification will
be referred to in the Project Cooperation Agreement and made available
to the public. This provision is consistent with the right of third
parties to enforce the reservation provisions of the President-Governor
agreement of January 9, 2002. The final regulations retain the
provision in the proposed regulations that reservations or allocations
of water are a State responsibility and that any change to the
reservation or allocation of water for the natural system made under
State law will require an amendment to the Project Cooperation
Agreement. The final regulations also retain the provision in the
proposed regulations that the District Engineer will, in consultation
with other agencies and the Tribes, make a determination, after
considering any changed circumstances or new information since
completion of the PIR, that the revised reservation or allocation
continues to provide for an appropriate quantity, timing, and
distribution of water dedicated and managed for the natural system and
satisfies the requirements of the project-specific assurances of CERP.
The final regulations also provide that the Secretary of the Army
will notify the appropriate committees of Congress if a change in
reservation is made after approval of the PIR. The Secretary's and the
State's reasons for changing the reservation and information about any
new or changed circumstances will also be provided to Congress. This
provision will assist Congressional oversight of any project, and its
oversight of the integrity of the reservation process.
We feel that these measures provide adequate assurances that the
requirements of WRDA 2000 will be followed while not infringing upon
the authority of the State of Florida. The open process also ensures
both government and public oversight.
I. Interim Goals
Many comments focused on development of the interim goals. As
background, section 601(h)(3)(c)(i)(III) of WRDA 2000 requires that the
``Programmatic regulations * * * establish a process * * * to ensure
the protection of the natural system consistent with the goals and
purposes of the Plan, including the establishment of interim goals to
provide a means by which the restoration success of the Plan may be
evaluated throughout the implementation process.'' Interim goals
provide a means of tracking restoration performance and for
periodically evaluating the accuracy of predictions of system responses
to the effects of the Plan. Progress towards meeting the interim goals
is to be reported to Congress as part of the periodic reports required
by WRDA 2000.
There was universal agreement among agencies, tribes, interest
groups, and the public that interim goals will be useful for measuring
the restoration success of the Plan; however, there was disagreement
about whether the interim goals should be included in the final
programmatic regulations. Some commenters believed that WRDA 2000
required that the interim goals be included in the programmatic
regulations. In contrast, other commenters maintained that WRDA 2000
merely required that the regulations develop ``a process'' for
establishing interim goals, and did not require that the goals
themselves be in the regulations. Other commenters expressed views that
did not relate to statutory considerations. Some of these commenters
believed that it was important to include the interim goals in the
programmatic regulations to give them appropriate visibility and to
ensure that the interim goals are actually met. These commenters also
believed that including the interim goals in the regulations would have
the additional benefit of enabling the public to take part in the
process of establishing the goals. Another group of
[[Page 64209]]
commenters realized that we could not include the interim goals in the
regulations now but urged that they be made a part of the regulations
at a later time. In this regard, five Senators wrote: ``We understand
that the interim goals will not be ready to include in the regulations
before they are finalized, but we urge the Corps to include these goals
when they are established rather than relegating them to guidance
documents.'' Two Congressmen commented that the final rule should
provide for ``adoption of interim restoration goals once the
programmatic regulations are completed.''
Other comments maintained that interim goals should not be included
in the programmatic regulations. Some pointed out that the Plan
incorporates adaptive management, continuously assessing and adapting
to new information and circumstances. They believe that incorporating
fixed goals into regulations is inconsistent with adaptive management.
Some commenters maintain that the rulemaking process is structured and
cumbersome and that it is impractical to establish and amend interim
goals through such a time-consuming process. These commenters believe
that placing the interim goals in the programmatic regulations would
delay the process of adopting and amending the goals, which is
inconsistent with the concept of adaptive management. Other commenters
were also concerned with delays but their concerns relate to
identifying the interim goals in an Interim Goals Agreement independent
of the regulations and making this agreement subject to the concurrence
of the Secretary of the Interior and the Governor. These commenters
maintain that the statute only grants the Secretary of the Interior and
the Governor a concurrence right in the programmatic regulations and
extending this right to the Interim Goals Agreement will simply cause
delays.
In reviewing the comments, it was apparent that there was
significant disagreement on exactly what the interim goals should be.
One commenter observed that the interim goals should not include
ecological goals as that could subvert the hydrological basis for the
Plan. Most commenters who maintained that interim goals must be
included in the regulations did not give examples or provide
descriptions of the interim goals. Even those who thought that interim
goals should be included in the final regulations recognized that
additional time was required to perform more modeling related to the
interim goals. These commenters understood the importance of modeling
in establishing interim goals that are an effective measure of the
Plan's progress toward restoration. A number of commenters, including
the Miccosukee Tribe of Indians of Florida, expressed a desire to
review and comment on the interim goals before they are set forth in
the Interim Goals Agreement.
As a threshold matter, we think it is important to acknowledge the
significance of the interim goals. The interim goals provide the
yardstick that will measure the success of the restoration effort. It
will not be possible to fairly measure the success or failure of the
Plan without appropriate interim goals. The final regulations establish
principles that will guide the development of the interim goals and the
execution of the Interim Goals Agreement discussed in Sec. 385.38(a).
These principles will appropriately involve Tribes, governmental
interests and the public in the process. The regulations do not contain
the specific interim goals because more time is needed to model them to
satisfaction; therefore, the final regulations retain the concept of
establishing the interim goals in an Interim Goals Agreement. The
regulations provide that the public will have the opportunity to review
and comment on the Interim Goals Agreement before the agreement is
finalized. The regulation also makes clear that interim goals are
targets for use by the agencies and Congress in evaluating the success
of the restoration effort. They are not standards or schedules
enforceable in court. The final regulations provide for the development
and use of interim goals that include water quality and ecological
indicators in addition to indicators characteristic of anticipated
hydrological performance. These indicators will be helpful in making
meaningful judgments about the performance of the Plan.
In order to address the concern that interim goals be given
appropriate visibility, and to clarify the relationship between the
interim goals and the programmatic regulations, the final regulations
also contain a new section, 385.1(c), that clarifies our interpretation
of the statutory assurances provided for in section 601(h) of WRDA 2000
and how the processes, tools and enforcement mechanism established in
this section of the Act constitute an integrated framework for assuring
that the goals and purposes of the Plan are achieved. The section
clarifies that the programmatic regulations provide a process for
developing tools, including Project Implementation Reports, Project
Cooperation Agreements, Operating Manuals, interim goals, and other
tools established in the regulations, which are used to guide the
planning implementation and evaluation of the project. Section 601(h)
also provides an enforcement mechanism, the Agreement between the
President and the Governor, under which the State is to ensure, by
regulation or other appropriate means, that water made available by
each project in the Plan shall not be permitted for a consumptive use
or otherwise made unavailable by the State until such time as
sufficient reservations of water for the restoration of the natural
system are made under State law in accordance with the project
implementation report and consistent with the Plan. The President and
the Governor signed this Agreement on January 9, 2002.
The new Sec. 385.1(c) further directs the Secretary of the Army to
ensure that the public understands the linkage between the process,
tools, and enforcement mechanism and can monitor the effectiveness of
this integrated framework in assuring that the goals and purposes of
the Plan are achieved, as provided for in the programmatic regulations,
by providing for public notice and comment in the development of the
tools; providing notice of final action on tools; making available on
the world-wide web or by other appropriate means final, and where
appropriate draft, copies of all tools; and explaining through these
regulations and by other appropriate means the process for developing
the tools, the linkage between the process, tools and enforcement
mechanism, and the means by which these elements constitute an
integrated framework for assuring that the goals and purposes of the
Plan are achieved.
The Restoration Coordination and Verification (RECOVER) team will
use the principles set forth in the proposed regulations to develop and
recommend by no later than six months after the effective date of the
programmatic regulations, a set of interim goals for implementation of
the Plan. This date was set in recognition of the completion dates for
the pre-CERP baseline and the Master Implementation Sequencing Plan.
RECOVER has already begun work in order to meet the deadline.
The final regulations specify that the interim goals will identify
improvements in quantity, timing, and distribution of water in five-
year increments that begin in 2005, with the goals reflecting the
results expected to be achieved by 2010 and for each five-year
increment thereafter. As stated, the interim goals also will include
indicators for water quality improvement and ecological responses,
[[Page 64210]]
such as increases in extent of wetlands, improvements in habitat
quality, and improvements in native plant and animal abundance. While
hydrologic interim goals will assess the Plan's success in restoring
the hydrology of the region, we believe that the development and use of
indicators for water quality improvement and ecological responses is
necessary to assess the Plan's success in achieving the ultimate goal
of restoration of a healthy ecosystem. The final regulations recognize
that programs and activities that are independent of CERP may influence
the achievement of improvements in water quality and desired ecological
responses. The extent of the influence of these programs and activities
should be assessed and described at the time goals are developed, and
should be taken into account as the Plan is subsequently evaluated
relative to its goals and purposes. In addition, the final regulations
include specific water quality indicators for RECOVER to consider.
The final regulations envision that RECOVER will provide its
recommendations to the Army Corps of Engineers, the South Florida Water
Management District, and the Department of the Interior for
consideration. A proposed Interim Goals Agreement shall be developed by
the Secretary of the Army, the Secretary of the Interior and the
Governor in consultation with the Miccosukee Tribe of Indians of
Florida, the Seminole Tribe of Florida, the Environmental Protection
Agency, the Department of the Commerce, other Federal, State, and local
agencies, and the South Florida Ecosystem Restoration Task Force.
Interim goals will be memorialized in an agreement to be signed by the
Secretary of the Army, the Secretary of the Interior, and the Governor
of the State of Florida no later than one year after the effective date
of the programmatic regulations. The Secretary of the Army will provide
a notice of availability of the proposed agreement to the public in the
Federal Register, seek public comments, and execute the final agreement
with the Secretary of the Interior and the Governor.
As discussed previously, the final regulations do not envision that
interim goals will be included in the programmatic regulations
themselves. The regulations provide that the Department of the Army
will memorialize the Interim Goals Agreement in appropriate Corps of
Engineers guidance. However, the regulations do establish requirements
that are triggered if the interim goals are not achieved as
anticipated. If the interim goals have not been met or are unlikely to
be met, then the Corps of Engineers and the South Florida Water
Management District must determine why the goals have not been met or
are unlikely to be met and either initiate adaptive management actions
to achieve the interim goals as soon as practical, consistent with the
purposes of the Plan and consistent with the interim targets, or
recommend changes to the interim goals.
Finally, the final regulations establish a process for revising the
interim goals in five-year increments or sooner, if appropriate, in
light of new information.
J. Interim Targets for Other Water-Related Needs of the Region
The overarching objective of the Plan is the restoration,
preservation, and protection of the South Florida ecosystem while
providing for other water-related needs of the region, including water
supply and flood protection. Identifying incremental targets for the
other water-related needs of the region will help evaluate the success
of implementation of the Plan in achieving the non-restoration goals of
the Plan. The proposed regulations included provisions establishing a
process for evaluating progress on meeting the other water-related
needs of the region.
These provisions drew comments from several parties. One commenter
suggested that the process for developing targets for other water-
related needs of the region should closely parallel the process for
developing the restoration-related interim goals. Two commenters
believed that the date specified in the proposed regulations for
RECOVER to provide recommendations on the targets should be extended
because the targets are influenced by information that will be
developed in connection with the pre-CERP baseline and the Master
Implementation Sequencing Plan. One commenter expressed the view that
the targets for other water-related needs should not be established
before the adoption of the restoration-related interim goals. Other
commenters were concerned that the proposed regulations did not address
the question of how issues would be resolved if conflicts arise between
achieving the interim goals and the targets for other water-related
needs.
The final regulations provide that by not later than six months
after the effective date of the programmatic regulations, RECOVER will
recommend interim targets for the other water-related needs of the
region, that are consistent with the interim goals. The Secretary of
the Army and the Governor, in consultation with others, including the
South Florida Ecosystem Restoration Task Force, will develop the
interim targets. RECOVER already has begun work in order to meet the
deadline. The final regulations specify that the Secretary of the Army
and the Governor will establish the targets within one year of the
effective date of the programmatic regulations, but not prior to the
execution of the Interim Goals Agreement. Like interim goals directed
at evaluating the restoration success of the Plan, interim targets for
other water-related needs of the region will be incorporated into
appropriate agency guidance.
The final regulations retain the idea of drawing a distinction
between interim goals, which are directed at evaluating the restoration
success of the Plan, and interim targets for achieving the other water-
related needs of the region. In the regulations, we use the term
``interim'' in front of the term ``targets'' to show that the interim
targets for other water-related needs, which evaluate progress towards
providing for these purposes, are parallel to the interim goals, which
measure restoration success.
Like the provisions for interim goals, the final regulations
specify that the interim targets will identify improvements in
quantity, timing and distribution of water in five-year increments that
begin in 2005, with the targets reflecting the results expected to be
achieved by 2010 and for each five-year increment thereafter. The
interim targets will include indicators for the frequency of water
restrictions in various areas and the frequency of meeting salt-water
intrusion protection criteria for different areas. Again, like the
provisions for interim goals, the final regulations do establish
requirements that are triggered if the interim targets are not achieved
as anticipated. If the interim targets have not been met or are
unlikely to be met, then the Corps of Engineers and the South Florida
Water Management District must determine why the targets have not been
met or are unlikely to be met and either initiate adaptive management
actions to achieve the interim targets as soon as practical, consistent
with the purposes of the Plan and consistent with the interim goals, or
recommend changes to the interim targets.
Finally, the final regulations make clear that the interim targets
are intended to facilitate inter-agency planning, monitoring, and
assessment throughout the implementation process and are not standards
or schedules enforceable in court.
[[Page 64211]]
K. Role of the Department of the Interior
Several commenters recommended that the Department of the Interior
be given a more prominent role in implementation of the Plan because it
administers significant lands and natural resources involved in the
Plan. These commenters felt that the concurrence provisions in the
proposed regulations diminished the role of the Department of the
Interior envisioned in WRDA 2000. They felt that the concurrence
provisions in the proposed regulations did not give the Secretary of
the Interior an appropriate role in approving the guidance memoranda
because the Secretary of the Army could finalize these documents after
giving good faith consideration to comments from the Secretary of the
Interior, notwithstanding the fact that the Secretary of the Interior
might have concerns about finalizing the regulations. In addition,
these commenters believe that the Department of the Interior should
have a concurrence role on other programmatic decisions such as
Comprehensive Plan Modification Reports, the Master Implementation
Sequencing Plan, and System Operating Manual. Other commenters noted
that the concurrence process in WRDA 2000 only extends to the
programmatic regulations and that section 601(h)(3)(C)(ii) expressly
prohibits the requirement for concurrence on Project Implementation
Reports, Project Cooperation Agreements, Operating Manuals for
individual projects, and other documents relating to the development,
implementation, and management of individual features of the Plan
unless concurrence is provided for in other laws. These commenters did
not favor giving the Department of the Interior a greater role in
implementing the Plan.
The final regulations give the Department of the Interior a
concurrence role, along with the Governor of the State of Florida, in
the development of six specific guidance memoranda related to important
program-wide aspects of implementing the Plan. These guidance memoranda
address the: (1) General format and content of Project Implementation
Reports; (2) processes for evaluation of alternatives developed for
Project Implementation Reports, their cost effectiveness and impacts;
(3) general content of operating manuals; (4) general processes for the
conduct of assessment activities of RECOVER; (5) process for
identifying if an elimination or transfer of existing legal sources of
water will occur as a result of implementation of the Plan; and (6)
process used in Project Implementation Reports for identifying the
appropriate quantity, timing, and distribution of water dedicated and
managed for the natural system. In accordance with section
601(h)(3)(c)(ii) of WRDA 2000, the regulations prohibit concurrence by
the Secretary of the Interior and the Governor of Florida on Project
Implementation Reports, Project Cooperation Agreements, Operating
Manuals for individual projects, and other documents relating to
individual features of the Plan.
We revised the concurrence provisions in the final regulations so
that the approval process for the guidance memoranda parallels the
statutory concurrence process for the programmatic regulations. We
deleted the language in the proposed regulations that said the Army
would give ``good faith consideration'' to the concurrence or non-
concurrence statements of the Secretary of the Interior and the
Governor before approving the guidance memoranda. This language did not
communicate adequately our intent to obtain the concurrence of the
Secretary of the Interior and the Governor. Instead, it suggested that
the Army simply had to fulfill a ministerial coordination requirement
by asking the Secretary of the Interior and the Governor whether they
concurred or non-concurred in the guidance memorandum. We felt that
this language did not convey the Army's intent to actively seek the
concurrence of the Secretary of the Interior and the Governor prior to
approving the guidance memoranda.
The final regulations also provide that the Department of the
Interior will play a significant role in addressing other issues
related to the Plan. Like the proposed regulations, the final rule
gives the Secretary of the Interior, along with the Governor of the
State of Florida, a concurring role in the Secretary of the Army's
determination of the pre-CERP baseline. The final regulations also
envision that interim goals will be established through a formal
Interim Goals Agreement among the Secretary of the Army, the Secretary
of the Interior, and the Governor. Further, the Department of the
Interior plays an important role in the Leadership Group of RECOVER,
along with several other Federal and State agencies and Tribes.
Finally, the regulations give the Department of the Interior an
important consulting role throughout implementation of the program,
including, among other things, participation on Project Delivery Teams;
selection and revision of hydrologic models; development of the
Adaptive Management Program, Project Implementation Reports, Operating
Manuals, and Comprehensive Plan Modification Reports; development,
review and revision of changes to the Master Implementation Sequencing
Plan; and the development of the means for monitoring progress towards
other water-related needs of the region as provided for in the Plan.
Read together, we believe that these provisions give the Department
of the Interior as well as the Governor of the State of Florida an
important and appropriate role in implementing the Plan. This prominent
role is consistent with Interior's natural resources stewardship and
land management responsibilities.
L. Role of South Florida Ecosystem Restoration Task Force
Several commenters felt that the proposed regulations did not give
the South Florida Ecosystem Restoration Task Force (``Task Force'') an
appropriate role in Plan implementation. The Task Force is an
interagency group created by section 528(f) of the Water Resources
Development Act of 1996 (110 Stat. 3770) (hereinafter ``WRDA 1996'')
More specifically, the Miccosukee Tribe and the Seminole Tribe
expressed the view that the Task Force could play a constructive role
in facilitating an open discussion of issues related to implementation
of the Plan among Federal, State, Tribal, and local interests. The
Seminole Tribe also commented that information about alternatives
developed for Project Implementation Reports should be shared with the
Task Force before the completion of the draft Project Implementation
Report.
The responsibilities of the Task Force are found in section 528 of
WRDA 1996 and section 601 of WRDA 2000. In general, section 528
envisions that the Task Force will coordinate programs and research on
ecosystem restoration, exchange information, provide assistance and
facilitate resolution of conflicts involving the restoration of the
South Florida ecosystem. Section 601 of WRDA 2000 gives the Task Force
a consultation responsibility concerning the establishment of an
independent scientific review panel to review the progress that is
being made toward achieving the natural system restoration goals of the
Plan.
The final regulations recognize that the Task Force can play a
constructive role in Plan implementation. The regulations acknowledge
the benefits that result from sharing issues with the
[[Page 64212]]
Task Force and set forth the intention of the agencies involved in
implementing the Plan to regularly report to the Task Force as they do
currently. We will continue to regularly report to the Task Force and
its working group on Plan implementation matters and we expect that the
Task Force will continue to provide valuable input regarding
implementation of the Plan.
The South Florida Water Management District and the Jacksonville
District already regularly report to the Task Force and its working
group on CERP matters. We expect that informal coordination among the
implementing agencies, the Task Force and its working group and its
other advisory bodies will continue. For example, the Task Force may
wish to have regular briefings on CERP implementation issues, on the
Master Implementation Sequencing Plan, on Project Implementation
Reports, or on Operating Manuals; or the Task Force may decide to have
RECOVER provide the working group with information on work in progress.
Further, we contemplate that the Task Force will determine, on a case-
by-case basis, the manner and extent to which it is appropriate for it
to be involved in CERP in order to carry out its existing statutory
responsibilities.
The final regulations assure that the Task Force will be informed
of certain matters of significance. They specifically state that the
Task Force will be notified of and given an opportunity to review and
provide comment on a variety of issues, including but not limited to,
interim goals, Project Implementation Reports, Pilot Project Design
Reports, Pilot Project Technical Data Reports, the pre-CERP baseline,
assessment reports, guidance memoranda, Master Implementation
Sequencing Plan, Comprehensive Plan Modification Reports, periodic CERP
updates, and reports to Congress. Finally, the regulations require that
the Task Force shall be provided with information on the alternatives
developed and evaluated for the Project Implementation Reports before
completion of the draft Project Implementation reports.
M. Consultation
There was general agreement among those commenting on the proposed
regulations that it is important for the agencies implementing the Plan
to consult with interested parties. The Corps of Engineers and non-
Federal sponsors are responsible for implementation of the Plan.
However, successfully implementing the Plan requires more than the
involvement of these parties, it also requires extensive involvement by
Tribes, Federal, State and local agencies.
One commenter recommended that the Tribal consultation provisions
in the proposed regulations be revised to specifically state that the
consultation with Tribes should be conducted on a government-to-
government basis. This commenter also felt that the Federal trust
responsibility for Tribes should not be tied to one Executive Order
alone.
Other commenters expressed concerns about the time that would be
allowed for consultations. Several commenters expressed the view that
the time allowed for consultation should reflect the complexity of the
task or issue under review. Another commenter suggested that the
Tribes, agencies, and public be informed of the closing dates for
consultation.
The final regulations contemplate that the implementing agencies
will consult fully and openly with the Department of the Interior, the
Environmental Protection Agency, the Department of Commerce, the
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida,
the Florida Department of Environmental Protection, and other Federal,
State, and local agencies as the Plan is implemented. These
consultation provisions ensure that interested parties are
appropriately involved in implementing, evaluating, and modifying the
Plan when necessary. The final regulations specifically state that the
consultation with the Tribes will be conducted on a government-to-
government basis and in compliance with applicable laws, Executive
Orders, and regulations.
The final regulations contemplate that the consultations on Plan
related matters will facilitate a timely exchange of views among the
parties. This will ensure that the consultation process is not used as
a tool to delay or veto actions. The final regulations also envision
that the Corps of Engineers and the non-Federal sponsor will set
reasonable limits on the time for consultations and inform parties of
those limits, after giving appropriate consideration to the
significance of the proposed action, the degree to which relevant
information is known or obtainable, the degree to which the action is
controversial, the state of the art of analytical techniques, the
number of persons affected, the consequences of delay, and other time
limits imposed on the agency by law, regulations, or Executive Order.
N. Operating Manuals
The provisions in the proposed regulations on Operating Manuals
were of interest to a number of commenters. These manuals provide
operational guidance that is intended to ensure that the goals and
purposes of the Plan are achieved. Project operating manuals provide
guidance on operational concerns relevant to individual projects.
System Operating Manuals provide guidance on operational concerns
related to projects in the aggregate to ensure that projects function
in a coordinated, systematic way. Several commenters expressed concerns
that the proposed regulations would allow unconstrained deviations from
the approved Operating Manuals because of provisions in the regulations
that allowed for adjustments during years when substantial deviations
from expected rainfall and runoff occur, or when required for adaptive
management reasons. These commenters also were concerned that the
precise circumstances in which these temporary deviations would be
allowed were not specified. Another commenter expressed the view that
the final regulations should include a provision that would ensure any
changes to Operating Manuals are consistent with the goals and purposes
of the Plan. Finally, one commenter felt that the final regulations
should include a provision stating that the drought contingency plans
that are mentioned in the regulations discussing Operating Manuals
should be consistent with the Seminole Tribe's water rights compact.
The final regulations retain the concept of developing Project
Operating Manuals and System Operating Manuals. They contain new
provisions that allow for public review and comment before they are
finalized. The regulations also specify that the System Operating
Manual will be developed by December 31, 2005. They contemplate that a
Project Operating Manual will be developed for each project and that a
draft Project Operating Manual will be included as an appendix in the
Project Implementation Report. This will ensure that the operation of
the project is linked to the expected benefits of the project
recommended in the Project Implementation Report. The final regulations
state that the final Project Operating Manual will be prepared as soon
as possible after completion of the operational testing and monitoring
phase of the project. Additionally, a provision has been added to the
regulations that will require modifications to operating manuals to be
consistent with the goals and purposes of the Plan. We have deleted the
proposed provision of concern regarding yearly adjustments and have
[[Page 64213]]
described the circumstances for allowing temporary deviations due to
emergencies and unplanned minor deviations. The final regulations also
require that the drought contingency plans be consistent with the
Seminole water rights compact.
O. Master Implementation Sequencing Plan
Several parties commented on the provisions in the proposed
regulations concerning the Master Implementation Sequencing Plan. This
Master Implementation Sequencing Plan, identified as the framework for
restoration of the South Florida ecosystem, covers 68 components that
will be implemented as approximately 45 separate projects. The proposed
regulations establish a process for developing a Master Implementation
Sequencing Plan and a process for specifying that projects will be
sequenced and scheduled to maximize the achievement of the goals and
purposes of the Plan, including the achievement of the interim goals
and interim targets at the earliest possible time, to the extent
practical given scientific, technical, funding, contracting, and other
constraints. One commenter felt that the Master Implementation
Sequencing Plan should reflect the formulation and evaluation
provisions and the results of Plan efforts currently underway. Another
commenter believed that the Master Implementation Sequencing Plan
should take into account the savings clause of WRDA 2000.
The final regulations contemplate that the Master Implementation
Sequencing Plan will be developed within one year of the effective date
of the programmatic regulations, following consultation with the
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Indians,
the U. S. Department of the Interior, the U.S. Department of Commerce,
U.S. Environmental Protection Agency, the Florida Department of
Environmental Protection, and other Federal, State and local agencies,
as well as in consultation with the South Florida Ecosystem Restoration
Task Force. They provide for sequencing and scheduling projects to
ensure that each project delivers benefits, including benefits to the
natural system, that justify the project, in the context of the then
existing Central and Southern Florida Project, as modified by any Plan
components that already have been implemented. The final regulations
envision that the Master Implementation Sequencing Plan will base the
sequence and schedule of projects on the best scientific, technical,
funding, contracting, and other information available. They also state
that the Master Implementation Sequencing Plan will be revised as
necessary to integrate new information such as updated schedules from
Project Management Plans, the results of pilot projects and other
studies, updated funding information, revisions to the Plan,
Congressional or other authorization and direction, or information from
the adaptive management program, including achievement of the expected
performance level of the Plan and the interim goals and targets.
P. Adaptive Management Program
Several commenters thought that it was important to modify the
proposed regulation's provisions concerning adaptive management in
order to reinforce the importance of this management concept in
implementing the Plan. Adaptive management is a crucial element of the
Everglades Restoration Plan. It involves refining the Plan during its
implementation to respond to new information or technologies to ensure
that the goals and purposes of the Plan are fulfilled. The report of
the Senate Committee on Environment and Public Works on WRDA 2000
(Senate Report No. 106-362) contains a discussion of that committee's
expectations with respect to adaptive management:
The committee does not expect rigid adherence to the Plan as it
was submitted to Congress. This result would be inconsistent with
the adaptive management principles in the Plan. Restoration of the
Everglades is the goal, not adherence to the modeling on which the
April 1999 Plan was based. Instead, the committee expects that the
agencies responsible for project implementation report formulation
and Plan implementation will seek continuous improvement of the Plan
based upon new information, improved modeling, new technology and
changed circumstances.
One commenter suggested that the definition of adaptive management
be revised to clarify its meaning. Another commenter pointed out that
the Corps of Engineers and the South Florida Water Management District
currently are in the process of updating the Plan to ensure that it is
based on the latest available information and modeling. This commenter
recommended that a direction to complete this update be included in the
final regulations since the Plan is based on information and
projections that are approximately five years old.
The final regulations contain a new definition of adaptive
management. The regulations define adaptive management to mean:
The continuous process of seeking a better understanding of the
natural system and human environment in the South Florida ecosystem,
and seeking continuous refinements in and improvements to the Plan
to respond to new information resulting from changed or unforeseen
circumstances, new scientific and technical information, new or
updated modeling; information developed through the assessment
principles contained in the Plan; and future authorized changes to
the Plan in order to ensure that the goals and purposes of the Plan
are fulfilled.
The final regulations also provide for the establishment of an
adaptive management program that will guide the implementation of the
Plan. This program will be used to assess the responses of the South
Florida ecosystem to the Plan and to determine whether these responses
match expectations, including anticipated performance levels. If the
interim goals or targets are not achieved as anticipated, the Corps of
Engineers and the South Florida Water Management District must
determine why not, followed by either adaptive management actions to
achieve the goals or targets as soon as practicable, or revisions to
the goals or targets as appropriate.
The final regulations envision that the Corps of Engineers and the
South Florida Water Management District, based on technical information
developed by RECOVER, will prepare periodic assessment reports as part
of this adaptive management program. These reports will be externally
peer reviewed and used by the implementing agencies in consultation
with others to evaluate whether the goals and purposes of the Plan are
being achieved and to determine whether improvements to the Plan are
warranted. The reports should prove invaluable in gaining an
understanding of the Plan's effectiveness and in ensuring that its
goals and purposes are fulfilled. The regulations also provide that in
considering how the Plan may be improved, the Corps of Engineers and
non-Federal project sponsor specifically shall consider modifying the
design or operational plan for a project of the Plan not yet
implemented; modifying the sequence or schedule for implementation of
the Plan; adding new components to the Plan or deleting components not
yet implemented; removing or modifying a component of the Plan already
in place; or a combination of any of these actions.
The final regulations also specify that periodic CERP updates shall
be performed, beginning within six months of the effective date of the
programmatic regulations and whenever necessary to ensure that the
goals and purposes of
[[Page 64214]]
the Plan are achieved, but not any less often than every five years.
The periodic CERP updates will be accomplished by the Corps of
Engineers and the South Florida Water Management District, in
consultation with Tribes, Federal, State, and local agencies, to
conduct an evaluation of the Plan using new or updated modeling that
includes the latest scientific, technical, and planning information.
The periodic CERP updates will provide a basis for determining if
management actions are necessary to seek improvements in the Plan based
upon new information resulting from changed or unforeseen
circumstances, new scientific and technical information, new or updated
modeling; information developed through the assessment principles
contained in the Plan; and future authorized changes to the Plan. The
final regulations direct that as part of the periodic CERP update, the
Corps of Engineers and the South Florida Water Management District will
determine the total quantity of water that is expected to be generated
by implementation of the Plan, including the quantity needed for the
natural system and human environment.
The consultation provisions of the proposed regulations have been
expanded to provide that the Corps of Engineers and the South Florida
Water Management District also shall consult with the South Florida
Restoration Task Force in conducting the evaluation of the Plan. The
final regulations no longer provide for review of the assessment report
by the independent science review panel. The independent science review
panel will prepare its own report to Congress with its independent
assessment of ecological indicators. It was deemed appropriate to keep
these reports separate in order to provide for a truly comprehensive
review of Plan performance and to ensure the independence of the
science review panel by insulating it from any other aspect of Plan
implementation or assessment beyond its statutory mission.
Q. Comprehensive Plan Modification Reports
We anticipate that the Plan will need to be revised periodically as
part of the adaptive management program to reflect new information and
to improve performance. The final regulations provide that a
Comprehensive Plan Modification Report shall be prepared whenever
significant revisions to the Plan are necessary to ensure that the
goals and purposes of the Plan are achieved. The Comprehensive Plan
Modification Report will be prepared using a process that parallels the
process for developing a Project Implementation Report. The final
regulations provide that the final approved Comprehensive Plan
Modification Report shall be transmitted to Congress. The final
regulations also provide that the Comprehensive Plan Modification
Report will include updated water budget information for the Plan,
including the total quantity of water that is expected to be generated
by implementation of the Plan, the quantity needed for the natural
system in order to attain restoration goals, and the quantity generated
for use in the human environment. In general, Plan modifications should
be consistent with achieving the interim goals and targets. In some
cases, the process of developing a Comprehensive Plan Modification
Report (which includes consultation with Federal, State, and local
agencies and public notice and comment) could identify necessary
changes to the interim goals or targets. In this case, the goals or
targets would be revised accordingly, as provided for in the final
regulations.
We did not receive any comments on the proposed regulations
provisions concerning Comprehensive Plan Modification Reports. We did
make several changes in the proposed regulations to conform to the
general comments made on other sections and to provide more detailed
information related to these reports. For example, the final
regulations state that the Comprehensive Plan Modification Report will
be initiated at the discretion of the Corps of Engineers and South
Florida Water Management District, in consultation with Federal, State,
and local agencies and the Tribes. The regulations also set forth a
series of general requirements related to the preparation of these
reports.
R. Pre-CERP Baseline
The provisions in the proposed regulations concerning the pre-CERP
baseline were of interest to a number of parties. Developing the pre-
CERP baseline is an important step in ensuring that the goals and
purposes of the Plan are fulfilled in accordance with WRDA 2000. This
baseline is a tool for estimating hydrological conditions in the South
Florida ecosystem on the date of enactment of WRDA 2000. It will be
used to aid in the determination if existing legal sources of water
will be eliminated or transferred as a result of project implementation
and for determining the water made available by the Plan.
A number of commenters expressed concerns about the concurrence
provisions for the pre-CERP baseline. These commenters pointed out that
WRDA 2000 only granted concurrence rights to the Secretary of the
Interior and the Governor on the programmatic regulations. They believe
that extending this concurrence process to the pre-CERP baseline was
unnecessary and would cause delays in developing the baseline. Two
commenters believed that the pre-CERP baseline should include all
existing legal sources of water and also should include the levels of
service for flood protection. One commenter observed that the
requirement in the proposed rule that the pre-CERP baseline was to be
consistent with the guidance memorandum for identifying the appropriate
quantity, timing, and distribution of water to be dedicated and managed
for the natural system might not be developed before the pre-CERP
baseline is determined.
The final regulations provide guidance on developing the pre-CERP
baseline. They envision that the pre-CERP baseline will include
information on the quantity, timing, distribution, and quality of water
in the South Florida ecosystem on the date of enactment of WRDA 2000.
The regulations state that the pre-CERP baseline will be supported by
appropriate documentation and will include a description of the
assumptions on which it is based. Additional work performed by the
Corps and the South Florida Water Management District with regard to
the pre-CERP baseline indicates that the pre-CERP baseline does not
need to be tied to the methodology for identification of water to be
reserved for the natural system as these are two separate analyses. The
final regulations require that the recommended project be compared to
the pre-CERP baseline and other appropriate information to determine if
an elimination or transfer of legal sources of water will be caused by
implementation of the project. Therefore, the final regulations do not
contain the provision from the proposed regulations that require the
Corps of Engineers and South Florida Water Management District, when
determining the pre-CERP baseline, to use a method consistent with the
guidance memorandum that contains instructions for identifying the
appropriate quantity, timing, and distribution of water dedicated and
managed for the natural system.
The final regulations provide that within six months of the
effective date of the programmatic regulations, the Corps of Engineers
and the South Florida Water Management District shall, in consultation
with Tribes, Federal, State, and local agencies develop the pre-CERP
baseline and
[[Page 64215]]
present it to the Secretary of the Army for consideration, memorialized
in an appropriate document. The regulations state that the pre-CERP
baseline shall be developed with the concurrence of the Secretary of
the Interior and the Governor. The language gives the Secretary of the
Interior and the Governor the same concurrence opportunity they had on
the programmatic regulations. While this concurrence process is not
required by law and will require additional time to fulfill, we believe
it is appropriate to provide for this process because of the
significance of the pre-CERP baseline.
Additionally, the final regulations specify that pre-CERP baseline
water availability is one of the factors that will be assessed in each
Project Implementation Report when determining the water that needs to
be reserved for the natural system. In order to ensure that the levels
of service for flood protection are not reduced, we have added a
provision that requires each Project Implementation Report to include
an analysis that considers the operational conditions included in the
pre-CERP baseline.
S. Shortfall in Performance by a Project
Several commenters noted that the proposed regulations did not
provide guidance on what actions should be taken when the amount of
water generated by a project is less than the amount estimated when the
Project Implementation Report was prepared. These commenters believe
that such a shortfall in performance should be shared in an equitable
manner among project purposes. One commenter proposed that, if a
component does not produce the water expected, the shortfall should be
shared equally. Another commenter proposed that if the actual
operations of a component do not produce the amount of water expected
for the natural system and other water-related needs of the region,
``the shortfall be shared between all anticipated uses on a pro rata
basis of what the project was expected to produce for each use.'' Other
commenters want to ensure that the needs of the natural system and the
savings clause requirements are provided first, before additional water
for agricultural and urban needs is provided.
The proposed regulations did not address the shortfall question.
Since the framework Plan includes 68 components that have different
functions, we do not consider one general rule concerning shortfalls in
performance to be appropriate. One unvarying rule for all projects
might also create problems under the savings clause. The final
regulations provide that the Project Implementation Report (PIR) will
include a plan for interim operations of the project in the event that
the project fails to provide the quantity, timing, or distribution of
water described in the PIR. The plan will take into account the
specific purposes of the specific project component addressed in the
PIR and the overall goals and purposes of the Plan. Under the final
regulations, management actions must be taken as part of the adaptive
management program to make permanent adjustments for shortfalls in
performance on a system-wide basis.
T. Elimination or Transfer of Existing Legal Sources of Water
Several commenters noted that the proposed regulations did not
contain a definition of the term ``existing legal sources of water.''
Section 601(h)(5)(A) of WRDA 2000 contains a savings clause provision
that is designed to ensure that an existing legal source of water is
not eliminated or transferred until a replacement source of water of
comparable quantity and quality as was available on the date of
enactment of WRDA 2000 is available. The statute states that ``the
Secretary and the non-Federal sponsor shall not eliminate or transfer
existing legal sources of water, including those for--(i) agricultural
or urban water supply; (ii) allocation or entitlement to the Seminole
Indian Tribe of Florida * * * (iii) the Miccosukee Tribe of Indians of
Florida; (iv) water supply for Everglades National Park; (v) water
supply for fish and wildlife.''
The report of the Senate Committee on Environment and Public Works
on WRDA 2000 (Senate Report No. 106-362) describes the intent of the
prohibition against the elimination or transfer of legal sources of
water as follows:
Elimination of existing sources of water supply is barred until
new sources of comparable quantity and quality of water are
available; existing authorized levels of flood protection are
maintained; and the water compact among the Seminole Tribe of
Florida, the State, and the South Florida Water Management District
is specifically preserved.
Although WRDA 2000 uses the term ``existing legal sources of
water,'' it does not define the term; nor could we find a definition of
this term elsewhere in Federal or State law. Several commenters
believed that the term should include all sources of water. According
to this view, a legal source of water that was available on the date of
enactment of WRDA 2000 would include water that was accessible and
could have been used on that date, as well as water that actually was
used or permitted to be used on that date. These commenters pointed out
that the statute refers to existing legal ``sources'' not existing
legal ``uses.'' Other commenters believed that existing legal sources
of water should be limited to water permitted for consumptive use.
Still others believed that the term was further limited to consumptive
uses that not only were permitted, but also were actually used, on the
date of enactment. One commenter suggested that a guidance memorandum
be developed that defines an existing legal source of water and
provides guidance for determining if the implementation of a project
will cause an elimination or transfer of an existing legal source of
water.
The final regulations provide for the development of a guidance
memorandum that will define ``existing legal sources of water.'' This
guidance memorandum also will describe the process for determining if
existing legal sources of water are to be eliminated or transferred and
for determining if a new source of water of comparable quantity and
quality as that available on the date of enactment of WRDA 2000 is
available to replace the water to be lost as a result of implementation
of the Plan.
The final regulations also state that the Project Implementation
Report will include an analysis to determine if the project will cause
an elimination or transfer of existing legal sources of water. The
final regulations also state that the recommended project will be
compared to the pre-CERP baseline and other appropriate information to
determine if an elimination or transfer of legal sources of water will
be caused by implementation of the project. If the project will cause
an elimination or transfer of a source of water, then the Project
Implementation report will include measures to ensure that such
elimination or transfer will not take place until a new source of water
of comparable quantity or quality is available to replace the water
that would be lost as a result of implementation of the Plan.
In accordance with WRDA 2000, the regulations make clear that the
Secretary of the Army and the non-Federal sponsor will not eliminate
existing legal sources of water, including those for agricultural or
urban water supply, an allocation or entitlement of the Seminole Tribe
of Florida, the Miccosukee Tribe of Indians of Florida, water supply
for Everglades National Park, and water supply for fish and wildlife.
Some commenters wanted the
[[Page 64216]]
regulation to include a definition for urban water supply. We have not
included a definition of urban water supply because we believe that
such a definition should be more appropriately developed with the
definition of existing legal sources of water that will be defined in
the required guidance memorandum.
U. Flood Protection
The WRDA 2000 provisions concerning the maintenance of flood
protection were of interest to several commenters. Section 601(h)(5)(B)
of WRDA 2000 contains a savings clause provision that is designed to
ensure that levels of service for flood protection are not reduced by
implementation of a project. This provision specifically states
``implementation of the Plan shall not reduce levels of service for
flood protection that are `` (i) in existence on the date of enactment
of this Act; and (ii) in accordance with applicable law.''
The report of the Senate Committee on Environment and Public Works
on WRDA 2000 (Senate Report No. 106-362) describes the intent of the
flood protection savings clause as follows:
With respect to flood control, the committee intends that
implementation of the Plan will not result in significant adverse
impact to any person with an existing, legally recognized right to a
level of protection against flooding. The committee does not intend
that, consistent with benefits included in the Plan, this bill
create any new rights to a level of protection against flooding that
is not currently recognized under applicable Federal or State law.
Several commenters felt that the final regulations should contain
additional guidance on how to interpret the provisions providing for
the maintenance of flood protection. One commenter believed that the
savings clause provisions for flood protection also should be extended
to the natural system and should be interpreted to prevent the transfer
of excessive water to the natural system. This commenter also felt that
the final regulations should define the term ``in accordance with
applicable law.'' Some commenters questioned how the Plan would address
opportunities for increased levels of flood protection or the provision
of flood protection in locations where there currently is no flood
protection. These commenters felt that the regulation should specify
that during the implementation of the Plan, the Project Delivery Teams
will consider opportunities for providing additional flood protection.
We have concluded that the existing levels of service for flood
protection for a particular area should be determined on a project-by-
project basis. Accordingly, the final regulations specify that Project
Implementation Reports will include an appropriate analysis and
consider the operational conditions included in the pre-CERP baseline
to demonstrate that the levels of service for flood protection that
were in existence on the date of enactment of WRDA 2000 and is in
accordance with applicable law will not be reduced by the project. The
Project Implementation Report process provides numerous opportunities
for the Project Delivery Team, the public, and the South Florida
Ecosystem Restoration Task Force, to examine the levels of service of
flood protection provided by previous projects and any law applicable
to the specific area affected by the Project Implementation Report.
Finally, the regulations acknowledge that the overarching objective of
the Plan is the restoration, preservation, and protection of the South
Florida ecosystem while providing for other water-related needs of the
region, including water supply and flood protection. Accordingly, the
final regulations provide for the evaluation of additional flood
protection, provided that such flood protection is consistent with the
other goals and purposes of the Plan.
V. NEPA Compliance
The Council on Environmental Quality regulations that implement the
National Environmental Policy Act (NEPA) (40 CFR 1505.1 and 1507.3),
specify that agencies must issue regulations identifying typical
classes of actions that normally require environmental impact
statements, that normally do not require either an environmental impact
statement or an environmental assessment (categorical exclusions), or
that normally require environmental assessments but not necessarily
environmental impact statements. The Corps of Engineers has adopted
procedures fulfilling this requirement in 33 CFR 230. The final
regulations consider the actions needed to implement the Plan on a
system-wide basis and apply the principles of 33 CFR 230 to those
actions to ensure that the provisions of NEPA are fulfilled. The
regulations identify certain actions that generally require preparation
of a NEPA document (either an Environmental Impact Statement or an
environmental assessment) or that do not require the preparation of a
NEPA document because they are subject to a categorical exclusion under
NEPA.
The final regulations envision that ordinarily the NEPA
documentation for a particular project will accompany the Project
Implementation Report. For this reason, other project-specific
documents such as the Project Cooperation Agreement, Project Management
Plan, and plans and specifications for the project are listed as
categorically excluded from NEPA documentation requirements. It is
important to note that identifying a document as being categorically
excluded from NEPA does not mean that the environmental effects of the
action covered by that document will not be analyzed as required under
NEPA. The Corps of Engineers will fully analyze and consider these
effects at an appropriate time as required by NEPA. This analysis will
be accomplished at the time the Corps of Engineers develops its
specific project proposal in the Project Implementation Report. This
process accords with NEPA's provisions on timing (40 CFR 1502.5 and
1508.23) and its admonishment to avoid duplication (Sec. 1500.4) and
improper segmentation of Federal actions (Sec. 1502.4).
Some commenters expressed the view that the guidance memorandum for
determining the quantity, timing and distribution of water dedicated
and managed for the natural system in a Project Implementation Report
(PIR) should be analyzed in an Environmental Impact Statement (EIS).
Since the guidance memorandum is procedural and does not affect the
environment, recommend legislation, or determine a specific quantity,
timing, or distribution of water for a specific component, it is not
considered a ``major Federal action'' under NEPA. As noted, the
specific project proposal, which is governed by the guidance
memorandum, will be subject to a full NEPA analysis in the Project
Implementation Report.
Similar comments were directed at the interim goals. Some
commenters felt that the interim goals were not ``major Federal
actions'' affecting the environment under NEPA. These commenters
regarded the interim goals as evaluation and reporting tools. Other
commenters maintained that the interim goals are planning goals and
that as such should be subject to a full NEPA analysis. We have
determined that the interim goals and interim targets do not require
separate NEPA analysis. Interim goals are means by which the
restoration success of the Plan may be evaluated; interim targets are
means by which progress towards other water-related needs of the region
may be evaluated. The Plan itself has undergone NEPA analysis. Future
decisions about the environment that involve interim goals and interim
targets will be analyzed in other NEPA documents. Projects implementing
the Plan will be analyzed under NEPA in Project
[[Page 64217]]
Implementation Reports. This will include an analysis of how the
project contributes to the goals and purposes of the Plan, including
the interim goals and interim targets. The effect of sequencing on the
achievement of interim goals and interim targets will be analyzed under
NEPA through the Master Implementation Sequencing Plan. The effect of
changes to CERP on the achievement of interim goals and interim targets
will also be analyzed under NEPA through the Comprehensive Plan
Modification Report. For this reason, we have listed interim goals and
interim targets as categorically excluded from NEPA. This is consistent
with the NEPA implementing regulations, which specify the NEPA analyses
should be structured to avoid duplication and improper segmentation of
Federal actions.
Some commenters felt that Project Cooperation Agreements, Project
Management Plans and Program Management Plans should not be
categorically excluded from NEPA. The Project Cooperation Agreement is
a written agreement between the non-Federal sponsor and the Federal
government setting forth the Federal and non-Federal responsibilities
for implementing the project. The Project Cooperation Agreement does
not select among project alternatives, it merely sets forth the
parties' contractual understandings with regard to a project proposal
that previously has been selected in the Project Implementation Report.
For this reason, we continue to believe that it is appropriate to
extend a categorical exclusion to Project Cooperation Agreements;
however, the Corps of Engineers will not conclude a Project Cooperation
Agreement for a project before the environmental consequences of that
project have been considered fully in an appropriate NEPA document
accompanying a Project Implementation Report. Project Management Plans
and Program Management Plans are administrative documents setting
schedules and assigning tasks between the local sponsor and the Federal
government. Accordingly, those items continue to be listed as
categorically excluded in the final rule.
W. Outreach
Several commenters suggested that the outreach provisions in the
proposed regulations be revised. A number of commenters requested
inclusion of their community-based group as a specific entity with
which to consult. Several commenters believed that the proposal did not
make clear the need for effective outreach throughout the
implementation process, not just during the planning phase. In
addition, several commenters believed that specific measurement tools
were needed to monitor the effectiveness of the outreach effort and the
minority contracting provisions. One commenter suggested that the
regulations ensure that information is provided to socially and
economically disadvantaged individuals and communities about potential
or anticipated contracting opportunities. One commenter suggested that
the regulations specify that meetings with the public should be
scheduled at times and locations that are convenient to the public.
In the final regulations, we have broadened the definition of
public to include community-based organizations. The regulations
clarify that the public outreach provisions apply throughout the entire
process of implementing the plan. The regulations also add a provision
that public meetings and workshops will be held at times and locations
that facilitate participation by the public. The final regulations also
contain a provision to provide additional information to socially and
economically disadvantaged individuals and communities about potential
contracting opportunities, noting that the means chosen must be
consistent with the outreach provisions of CERP and with other
applicable provisions of Federal law. The intent of this provision is
to share information with the public in a way that is allowable and
consistent with the Federal Acquisition Regulations, the Competition in
Contracting Act, and other applicable provisions of law and
regulations.
X. Formulation and Evaluation of Alternatives
The final regulations explain that the Project Implementation
Report is a document that provides information on plan formulation and
evaluation, engineering and design, estimated benefits and costs,
environmental effects, and the additional information that is necessary
for the Secretary of the Army to approve the project for
implementation, or for Congress to authorize the project for
implementation. Several commenters felt that changes should be made to
the provisions in the proposed regulations concerning the formulation
and evaluation of alternatives for Project Implementation Reports. Some
commenters believe that alternatives should be formulated, evaluated,
and justified on their ability to provide system-wide benefits. One
commenter felt that the language in the proposed regulations, which
requires system formulation and evaluation to compare ``total benefits
and costs of the alternative under both the with-CERP and without-CERP
condition,'' is vague. The same commenter stated that the proposed
regulation's inclusion of the evaluation of a selected alternative as
the last-added increment of the Plan was superfluous, because the
proposed regulations already require proposed alternatives to be
evaluated on the basis they contribute to the achievement of the goals
and purposes of the Plan. One commenter believed that constraining plan
formulation within the funding target for the project established by
the April 1999 ``Final Integrated Feasibility Report and Programmatic
Environmental Impact Statement'' was not appropriate and would inhibit
full consideration of alternatives. Another commenter believed that the
proposed regulations envisioned an overly narrow definition of cost
effectiveness. Some comments cautioned that the formulation and
evaluation of alternatives should not mimic traditional Corps of
Engineers planning principles because in their view, traditional Corps
of Engineers planning has focused on the quantification of benefits at
customary civil works projects, rather than achieving the unique goal
of restoring an entire ecosystem. There was general agreement that the
formulation and evaluation of alternatives should not elevate the goal
of fulfilling the other water-related needs of the region over the goal
of fulfilling the ecological needs of the South Florida ecosystem
simply because the benefits of fulfilling the other water-related needs
are readily quantifiable and the benefits of fulfilling the ecological
needs are not. This is consistent with section 601(h) of WRDA 2000
which states that the overarching objective of the Plan is the
restoration, preservation, and protection of the South Florida
ecosystem while providing for other water-related needs of the region,
including water supply and flood protection; and with section
601(f)(2), which states that the Secretary of the Army may determine
that an activity under CERP is justified by the environmental benefits
to be derived by the South Florida ecosystem, with no further economic
justification required, provided the activity is cost-effective.
The final regulations remove the provision that constrains plan
formulation to stay within the funding target for the project
established in the April 1999 ``Final Integrated Feasibility Report and
Programmatic
[[Page 64218]]
Environmental Impact Statement.'' Instead, the final regulations
require that the Project Implementation Report include a discussion of
any significant changes in cost or scope of the project from that
presented in the April 1999 Report. They also require that in preparing
Project Implementation Reports, the Corps of Engineers and the non-
Federal sponsor will formulate and evaluate alternative plans in order
to optimize the project's contributions toward achieving the goals and
purposes of the Plan on a system-wide basis in the most cost-effective
manner, while also ensuring that the selected option provides benefits
that justify costs on a next-added increment basis. The final
regulations call for the development of a guidance memorandum that will
describe the processes to be used to formulate and evaluate alternative
plans and their associated monetary and non-monetary benefits and costs
and the basis for justifying and selecting an alternative to be
recommended for implementation. To aid the formulation and evaluation
process, the final regulations also include definitions for the terms
``alternative plan,'' ``justified,'' and ``optimize.'' The definition
of ``justified'' makes clear, consistent with section 601(f)(2) of WRDA
2000 that restoration benefits need not be quantified or monetized to
justify costs, provided that the activity is justified by the
environmental benefits derived by the South Florida ecosystem and is
cost-effective. The regulations make clear that the project described
in the April 1999 ``Final Integrated Feasibility Report and
Programmatic Environmental Impact Statement,'' will be one of the
alternative plans that will be evaluated. They also specify that the
selected alternative plan will be the plan that maximizes net benefits
while still being justified as the next-added increment. Under the
final regulations, alternative plans that are not justified on a next-
added increment basis will not be selected. Finally, we have revised
figure 2 in Appendix A to better describe the formulation and
evaluation activities conducted during the development of the Project
Implementation Report.
In publishing these final regulations, we emphasize that the
discussion in the regulations on plan formulation and evaluation should
not be construed to elevate water supply and flood control benefits,
which historically have been easier to quantify and place a monetary
value on, over environmental restoration benefits, which are more
difficult to quantify.
Y. References to Senate Committee Report Language
One commenter was concerned about references to the Senate
Environment and Public Works Committee Report (Senate Report No. 106-
362) in the preamble of the proposed regulations. This commenter
expressed the view that Senate Committee Report 106-362 carries no
legislative weight since the bill discussed in Senate Committee Report
106-362 differs in several critical areas from the final version of the
bill adopted by the full United States Senate. We agree that the final
statute differed in several areas from the bill discussed in the report
and must be read with this limitation in mind. We have referred to the
Senate Report in the preamble to the final regulations only where it
provides relevant and reliable information to aid the understanding of
issues involved in implementing the Plan.
V. Project Implementation Reports Approved Pursuant to Transition Rule
Section 601(h)(3)(D) of WRDA 2000 establishes a transition rule for
Project Implementation Reports approved before the date of promulgation
of the programmatic regulations. This transition rule requires that the
Project Implementation Reports be consistent with the Plan. The
transition rule also requires that the preamble of the programmatic
regulations contain a statement concerning the consistency with the
programmatic regulations of Project Implementation Reports that were
approved prior to the date of issuance of the final regulations.
Accordingly, this preamble specifically states that no Project
Implementation Reports have been approved before the date of issuance
of the final programmatic regulations.
VI. Concurrence Process for This Regulation
The Secretary of the Interior and the Governor are required by
section 601(h)(3)(B) of WRDA 2000 to provide the Secretary of the Army
with a written statement of concurrence or non-concurrence on the final
programmatic regulations. The Secretary of Interior and the Governor
shall provide concurrence or non-concurrence within 180 days of being
provided with a copy of the final regulations.
The Department of the Army has sought to communicate openly and
fully with the Department of the Interior and the State of Florida
during the course of developing these regulations. We believe that this
communication has improved the content of the regulations and led to a
full understanding of the views of these parties. The concurrency
statements of the Department of the Interior and the State of Florida
are included as an appendix to this document.
VII. Organization of the Final Regulations
We have organized the final regulations in five subparts. The first
subpart, ``General Provisions,'' sets forth the purpose of the
regulations, the applicability of the regulations, definitions
pertaining to the regulations and other general information. The second
subpart, ``Program Goals and Responsibilities,'' describes the goals
and purposes of the Plan, implementation principles, implementation
responsibilities, and consultation and coordination expectations. The
remaining subparts were designed to be consistent with the content
required by section 601(h)(3)(C). These subparts are: ``Comprehensive
Everglades Restoration Plan Implementation Processes,'' ``Incorporating
New Information into the Plan,'' and ``Ensuring Protection of the
Natural System and Water Availability Consistent with the Goals and
Purposes of the Plan.''
VIII. Administrative Requirements
A. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
The final regulations do not impose any information collection
requirements for which Office of Management and Budget (OMB) approval
under the Paperwork Reduction Act is required. Thus, this action is not
subject to the Paperwork Reduction Act.
B. Executive Order 12866, as Amended
Under Executive Order 12866 (58 FR 51735, October 4, 1993), as
amended, we must determine whether the regulatory action is
``significant'' and therefore subject to review by the Office of
Management and Budget and the requirements of the Executive Order. The
Executive Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees,
[[Page 64219]]
or loan programs or the rights and obligations of recipients thereof;
or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, as amended, it has
been determined that the final regulations are a ``significant
regulatory action'' in light of the provisions of paragraph (4) above.
As such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations are documented in the
public record.
C. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the development of an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Although the
final regulations define the relationships between the Federal and
State partners, it is limited to implementation of the Comprehensive
Everglades Restoration Plan. It will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, within the
meaning of Executive Order 13132. Nevertheless, the Corps of Engineers
has consulted closely with the State and local officials in developing
the final regulations.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended (5 U.S.C. 601 et
seq.) generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice-and-comment rulemaking
requirements under the Administrative Procedure Act or any other
statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations and small
governmental jurisdictions. For purposes of assessing the impacts of
the proposed rule on small entities, a small entity is defined as: (1)
A small business based on SBA size standards; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district, or special district with a population of less than 50,000;
and (3) a small organization that is any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field. We certify that this action will not have a significant economic
impact on a substantial number of small entities. The final regulations
only establish processes and governmental relationships that will be
used for implementation of the Comprehensive Everglades Restoration
Plan.
E. Unfunded Mandates Reform Act
We have determined in accordance with the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.):
(a) The final regulations will not ``significantly or uniquely''
affect small governments. A Small Government Agency Plan is not
required. Small governments will only be affected to the extent that
they agree to act as a non-Federal sponsor for implementation of
projects for the Comprehensive Everglades Restoration Plan. The final
regulations do not establish new or different requirements for non-
Federal sponsors for implementation of projects for the Comprehensive
Everglades Restoration Plan. The Savings Clause ensures that small
governments, including public water utilities, will not be impacted by
the loss of an existing legal source of water, or existing levels of
service for flood protection that were in effect on the date of
enactment of WRDA 2000, and in accordance with applicable law.
(b) The final regulations will not produce a Federal mandate of
$100 million or greater in any year, and therefore, do not constitute a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The final regulations define processes and relationships between
the Federal and State partners in implementing the Comprehensive
Everglades Restoration Plan. The regulations do not affect the cost
sharing requirements for non-Federal sponsors in implementing the Plan
and therefore, impose no new obligations on State or local governments.
F. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (the NTTAA), Public Law 104-113, section 12(d) (15 U.S.C.
272 note), directs us to use voluntary consensus standards in our
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs us
to provide Congress, through OMB, explanations when we decide not to
use available and applicable voluntary consensus standards. These
regulations do not involve technical standards. Therefore, we did not
consider the use of any voluntary consensus standards.
G. Executive Order 13045
Executive Order 13045, as amended, entitled ``Protection of
Children From Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), applies to any rule that: (1) Was initiated
after April 21, 1997, or for which a notice of proposed rulemaking was
published after April 21, 1998; (2) is determined to be ``economically
significant'' as defined under Executive Order 12866, and (3) concerns
an environmental health or safety risk that we have reason to believe
may have a disproportionate effect on children. If the regulatory
action meets all three criteria, we must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives that were considered. The final
regulations are not subject to Executive Order 13045 because it is not
an economically significant regulatory action as defined by Executive
Order 12866. The final regulations establish processes for the
implementation of the Comprehensive Everglades Restoration Plan and
define the relationships between the Federal and State partners for
implementation. Furthermore, the regulations do not concern an
environmental health or safety risk that we have reason to believe may
have a disproportionate effect on children.
H. Executive Order 13175
Under Executive Order 13175, we may not issue a regulation that has
substantial, direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of powers and responsibilities between the Federal
government and Indian tribes, and imposes substantial direct compliance
costs on those communities, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
[[Page 64220]]
compliance cost incurred by the Tribal governments, or we consult with
those governments. If we comply by consulting, Executive Order 13175
requires us to provide the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of our prior consultation with
representatives of affected Tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13175 requires us to develop
an effective process permitting elected officials and other
representatives of Indian Tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.'' The final
regulations are required by section 601(h)(3) of WRDA 2000.
Additionally, the final regulations do not impose significant
compliance costs on any Indian Tribes. The regulations establish
processes for the implementation of the Comprehensive Everglades
Restoration Plan and define the relationships between the implementing
entities. Accordingly, the requirements of section 3(b) of Executive
Order 13175 do not apply to these final regulations. However, the Corps
of Engineers recognizes that two Indian Tribes, the Miccosukee Tribe of
Indians of Florida and the Seminole Tribe of Florida, have a
significant direct interest in the implementation of the CERP and the
framework for its implementation that will be established by these
programmatic regulations. We have thus consulted extensively with these
Tribes in the development of the regulations, and have included
requirements for continued consultation in all significant project
implementation components, including program-wide guidance memoranda,
Project Management Plans, Program Management Plans, Project
Implementation Reports, Project Operating Manuals, the System Operating
Manual, and the Master Implementation Sequencing Plan. These Tribes
also are included in the Leadership Group of RECOVER and participate in
the Project Delivery Teams and the South Florida Ecosystem Restoration
Task Force, which has played and will continue to play a consultative
role on many aspects of CERP implementation. Finally, Sec. 385.10(b)
includes a general requirement for consultation with the Tribes
``throughout the implementation process.''
I. Executive Order 12630
In accordance with Executive Order 12630 entitled ``Governmental
Actions and Interference with Constitutionally Protected Property
Rights,'' the final regulations will not effect a taking of private
property or otherwise have taking implications. Therefore, a takings
implication assessment is not required. The final regulations establish
processes to be used in implementing the Comprehensive Everglades
Restoration Plan and in and of itself does not address property needs.
J. Civil Justice Reform
In accordance with Executive Order 12988, we have determined that
the final regulations do not unduly burden the judicial system and meet
the requirements of sections 3(a) and 3(b)(2) of the Executive Order.
The final regulations establish processes to be used in implementing
the Comprehensive Everglades Restoration Plan and define the
relationships between the governmental entities that will implement the
Plan.
K. Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) that applies to regulations that significantly affect energy
supply, distribution, and use. Executive Order 13211 requires agencies
to prepare Statements of Energy Effects when undertaking certain
actions. Because the final regulations are not expected to
significantly affect energy supplies, distribution, or use, this action
is not a significant energy action and no Statement of Energy Effects
is required.
L. Executive Order 13272
On August 13, 2002, the President issued an Executive Order (E.O.
13272) that requires that agencies review draft rules to assess and
take appropriate account of the potential impact on small businesses,
small governmental jurisdictions, and small organizations, as provided
for in the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et
seq.) We have determined that this action will not have a significant
economic impact on a substantial number of small entities. The final
regulations only establish processes and governmental relationships
that will be used for implementation of the Comprehensive Everglades
Restoration Plan.
M. Environmental Documentation
As required by the National Environmental Policy Act (NEPA), the
Department of the Army prepares appropriate environmental documentation
for its activities affecting the quality of the human environment. We
have determined that the final regulations do not constitute a major
Federal action significantly affecting the quality of the human
environment. Therefore, environmental documentation under the National
Environmental Policy Act (NEPA) is not required for the final
regulations. One commenter expressed the view that an Environmental
Impact Statement was necessary for the regulations. The Corps of
Engineers has prepared appropriate environmental documentation,
including a Programmatic Environmental Impact Statement, for the
Comprehensive Everglades Restoration Plan. Today's final regulations do
not implement any of the features of the Plan. Rather, the final
regulations identify the processes to be followed in implementing
features of the Plan. Moreover, the final regulations establish
requirements for the preparation of appropriate environmental
documentation as part of the implementation process. Accordingly, we
continue to believe that an EIS is not warranted.
List of Subjects in 33 CFR Part 385
Environmental protection, Flood control, Intergovernmental
relations, Natural resources, Water resources, Water supply.
Dated: October 30, 2003.
John Paul Woodley, Jr.,
Assistant Secretary of the Army (Civil Works), Department of the Army.
0
Accordingly, as set forth in the preamble, the Army Corps of Engineers
adds 33 CFR part 385 as follows:
0
Add part 385 to read as follows:
PART 385--PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES
RESTORATION PLAN
Subpart A--General Provisions
Sec.
385.1 Purpose of the programmatic regulations.
385.2 Applicability of the programmatic regulations.
385.3 Definitions.
385.4 Limitation on applicability of programmatic regulations.
385.5 Guidance memoranda.
385.6 Review of programmatic regulations.
385.7 Concurrency statements.
Subpart B--Program Goals and Responsibilities
Sec.
385.8 Goals and purposes of the Comprehensive Everglades Restoration
Plan.
385.9 Implementation principles.
[[Page 64221]]
385.10 Implementation responsibilities, consultation, and
coordination.
Subpart C--CERP Implementation Processes
Sec.
385.11 Implementation process for projects.
385.12 Pilot projects.
385.13 Projects implemented under additional program authority.
385.14 Incorporation of NEPA and related considerations into the
implementation process.
385.15 Consistency with requirements of the State of Florida.
385.16 Design agreements.
385.17 Project Delivery Team.
385.18 Public outreach.
385.19 Environmental and economic equity.
385.20 Restoration Coordination and Verification (RECOVER).
385.21 Quality control.
385.22 Independent scientific review and external peer review.
385.23 Dispute resolution.
385.24 Project Management Plans.
385.25 Program Management Plans.
385.26 Project Implementation Reports.
385.27 Project Cooperation Agreements.
385.28 Operating Manuals.
385.29 Other project documents.
Subpart D--Incorporating New Information into the Plan
Sec.
385.30 Master Implementation Sequencing Plan.
385.31 Adaptive management program.
385.32 Comprehensive Plan Modification Report.
385.33 Revisions to models and analytical tools.
385.34 Changes to the Plan.
Subpart E--Ensuring Protection of the Natural System and Water
Availability Consistent with the Goals and Purposes of the Plan
Sec.
385.35 Achievement of the benefits of the Plan.
385.36 Elimination or transfer of existing legal sources of water.
385.37 Flood protection.
385.38 Interim goals.
385.39 Evaluating progress towards other water-related needs of the
region provided for in the Plan.
385.40 Reports to Congress.
Appendix A--Illustrations to Part 385
Authority: Section 601, Pub. L. 106-541, 114 Stat. 2680; 10
U.S.C. 3013(g)(3); 33 U.S.C. 1 and 701; and 5 U.S.C. 301.
Subpart A--General Provisions
Sec. 385.1 Purpose of the programmatic regulations.
(a) The programmatic regulations of this part implement the
provisions of section 601(h)(3) of the Water Resources Development Act
of 2000, Public Law 106-541, 114 Stat. 2688 (hereinafter ``WRDA
2000''), which was enacted on December 11, 2000.
(b) The purpose of the programmatic regulations of this part is to
ensure that the goals and purposes of the Comprehensive Everglades
Restoration Plan (the Plan) are achieved and to establish the processes
necessary for implementing the Plan. Some of these processes are
project specific, including, but not limited to, development of Project
Implementation Reports, Project Cooperation Agreements, plans and
specifications, Pilot Project Technical Data Reports, and Operating
Manuals. Other processes are of more general applicability, including,
but not limited to, development of program-wide guidance memoranda,
interim goals, interim targets, and the Master Implementation
Sequencing Plan. Taken together, these processes will ensure that the
restoration purposes and other goals of the Plan are achieved. The
regulations of this part also describe the relationship among the
various entities responsible for implementation of the Plan.
(c) Section 601(h) of WRDA 2000 establishes an integrated framework
for assuring that the goals and purposes of the Plan are achieved. This
framework includes tools for planning, implementation, and evaluation;
a process for developing these tools in an open public process, with
input from other Federal, State, and local agencies; and an enforcement
mechanism to ensure that the requirements of the statute are carried
out.
(1) Tools.
(i) The specific planning tool established by section 601(h) is the
Project Implementation Report.
(ii) The specific implementation tools established by section
601(h) are Project Cooperation Agreements and Operating Manuals.
(iii) The specific evaluation tool established by section 601(h) is
the interim goals for evaluating the restoration success of the Plan.
(iv) In addition to the specific planning, implementation, and
evaluation tools established by section 601(h), the regulations of this
part establish additional tools, including but not limited to, Project
Management Plans, Program Management Plans, Comprehensive Plan
Modification Reports, the Master Implementation Sequencing Plan, and
interim targets for evaluating progress towards achieving the other
water related needs of the region.
(2) Processes. The regulations of this part establish the processes
for developing these tools. Consistent with section 601(h), these
regulations have been developed, after notice and opportunity for
public content, with the concurrence of the Secretary of the Interior
and the Governor, and in consultation with the Seminole Tribe of
Florida, the Miccosukee Tribe of Indians of Florida, the Administrator
of the Environmental Protection Agency, the Secretary of Commerce, the
Florida Department of Environmental Protection, and other Federal,
State, and local agencies.
(3) Enforcement mechanism. The specific enforcement mechanism
established by Section 601(h) is the ``Comprehensive Everglades
Restoration Plan Assurance of Project Benefits Agreement,'' dated
January 9, 2002, between the President and the Governor, under which
the State shall ensure, by regulation or other appropriate means, that
water made available by each project in the Plan shall not be permitted
for a consumptive use or otherwise made unavailable by the State until
such time as sufficient reservations of water for the restoration of
the natural system are made under State law in accordance with the
project implementation report and consistent with the Plan.
(4) Public information. The Secretary of the Army shall ensure that
the public understands the linkage between the processes, tools, and
enforcement mechanism and can monitor the effectiveness of this
integrated framework in assuring that the goals and purposes of the
Plan are achieved, as provided for in the regulations of this part, by:
(i) Providing for public notice and comment in the development of
planning, implementation, and evaluation tools;
(ii) Providing notice of final action on planning, evaluation, and
implementation tools;
(iii) Making available to the public on a web site or by other
appropriate means final, and where appropriate draft, copies of all
planning, evaluation, and implementation tools; and
(iv) Explaining through the regulations of this part and by other
appropriate means the process for developing the tools, the linkage
between the process, tools, and enforcement mechanism, and the means by
which these elements constitute an integrated framework for assuring
that the goals and purposes of the Plan are achieved.
Sec. 385.2 Applicability of the programmatic regulations.
(a) This part applies to all activities conducted to implement the
[[Page 64222]]
Comprehensive Everglades Restoration Plan.
(b) As used in this part, the Secretary of the Army acts through
the Assistant Secretary of the Army for Civil Works with respect to the
Army's civil works program pursuant to 10 U.S.C. 3016.
(c) Nothing in this part shall be interpreted to amend, alter,
diminish, or otherwise affect:
(1) The rights, powers and duties provided under the
``Comprehensive Everglades Restoration Plan Assurance of Project
Benefits Agreement,'' dated January 9, 2002 pursuant to section
601(h)(2) of WRDA 2000; or
(2) Any existing legal water rights of the United States, the State
of Florida, the Miccosukee Tribe of Indians of Florida, or the Seminole
Tribe of Florida, including rights under the compact among the Seminole
Tribe of Florida, the State, and the South Florida Water Management
District, defining the scope and use of water rights of the Seminole
Tribe of Florida, as codified by section 7 of the Seminole Indian Land
Claims Settlement Act of 1987 (25 U.S.C. 1772e).
(d) This part is intended to aid the internal management of the
implementing agencies and is not intended to create any right or
benefit enforceable at law by a party against the implementing agencies
or their officers. Nothing in this part shall create a right or
expectation to benefits or enhancements, temporary or permanent, in
third parties that are not specifically authorized by Congress in
section 601 of WRDA 2000.
(e) Nothing in this part is intended to, or shall be interpreted
to, reserve or allocate water or to prescribe the process for reserving
or allocating water or for water management under Florida law. Nor is
this part intended to, nor shall it be interpreted to, prescribe any
process of Florida law.
Sec. 385.3 Definitions.
For the purposes of this part, the following terms are defined:
Adaptive management means the continuous process of seeking a
better understanding of the natural system and human environment in the
South Florida ecosystem, and seeking continuous refinements in and
improvements to the Plan to respond to new information resulting from
changed or unforeseen circumstances, new scientific and technical
information, new or updated modeling; information developed through the
assessment principles contained in the Plan; and future authorized
changes to the Plan in order to ensure that the goals and purposes of
the Plan are fulfilled.
Alternative plan means a plan that consists of a system of
structural and/or nonstructural measures, strategies, or programs
formulated to achieve, fully or partially, the goals and purposes of
the Plan, as further defined in section 1.6.1 of the Water Resources
Council's ``Economic and Environmental Guidelines for Water and Related
Land Resources Implementation Studies,'' dated March 10, 1983.
Assessment means the process whereby the actual performance of
implemented projects is measured and interpreted based on analyses of
information obtained from research, monitoring, modeling, or other
relevant sources.
Central and Southern Florida (C&SF) Project means the project for
Central and Southern Florida authorized under the heading ``CENTRAL AND
SOUTHERN FLORIDA'' in section 203 of the Flood Control Act of 1948 (62
Stat. 1176) and any modification authorized by any other provision of
law, including section 601 of WRDA 2000.
Component means features of the Plan that include, but are not
limited to, storage reservoirs, aquifer storage and recovery
facilities, stormwater treatment areas, water reuse facilities, canals,
levees, pumps, water control structures, and seepage management
facilities; the removal of canals, levees, pumps, and water control
structures; and operational changes.
Comprehensive Everglades Restoration Plan (CERP) means the plan
contained in the ``Final Integrated Feasibility Report and Programmatic
Environmental Impact Statement,'' dated April 1, 1999, as modified by
section 601 of WRDA 2000, and any subsequent modification authorized in
law.
Comprehensive Plan Modification Report means the report prepared
for approval by Congress of major changes to the Plan that are
necessary to ensure that the goals and purposes of the Plan are
achieved. The Comprehensive Plan Modification Report describes the
formulation and evaluation of alternatives, recommended modifications
to the Plan, and other economic, environmental, and engineering
information, and includes the appropriate NEPA document.
Concurrence means the issuance of a written statement of
concurrence or the failure to provide such a written statement within a
time frame prescribed by law or this part.
Consultation means a process to ensure meaningful and timely input
in the development of program and project activities, reports, manuals,
plans, and other documents from Federal, State, and local agencies, the
Miccosukee Tribe of Indians of Florida, and the Seminole Tribe of
Florida.
Coordination means the formal exchange of information and views, by
letter, report, or other prescribed means, between the Corps of
Engineers and the non-Federal sponsor and another agency or tribe,
including but not limited to, the exchange of information and views
regarding the development of Project Implementation Reports, Operating
Manuals, and Comprehensive Plan Modification Reports. Coordination
activities are required by and in accordance with purposes and
procedures established by Federal policy (public law, executive order,
agency regulation, memorandum of agreement, and other documents that
memorialize policy of the Corps of Engineers).
Cost-effective means the least costly way of attaining a given
level of output or performance, consistent with the goals and purposes
of the Plan and applicable laws.
Design Agreement means the agreement between the Corps of Engineers
and a non-Federal sponsor concerning cost sharing for activities
related to planning, engineering, design, and other activities needed
to implement the Plan.
Dispute means any disagreement between the agencies or tribes
associated with implementation of the Plan that cannot be resolved by
the members of a Project Delivery Team or RECOVER and that is elevated
to decision makers at the respective agencies or tribes.
District Engineer means the District Engineer of the Corps of
Engineers, Jacksonville District.
Division Engineer means the Division Engineer of the Corps of
Engineers, South Atlantic Division.
Drought contingency plan means the plan required by Sec.
222.5(i)(5) of this chapter and described in implementing Engineer
Regulation ER 1110-2-1941 ``Drought Contingency Plans,'' and means a
plan contained within an Operating Manual that describes procedures for
dealing with drought situations that affect management decisions for
operating projects.
Environmental and economic equity means the fair treatment of all
persons regardless of race, color, creed, national origin, or economic
status, including environmental justice, and the provision of economic
opportunities for small business concerns controlled by socially and
economically disadvantaged individuals, including individuals with
[[Page 64223]]
limited English proficiency, in the implementation of the Plan.
Environmental justice means identifying and addressing,
disproportionately high and adverse human health or environmental
effects of a Federal agency's programs, policies, and activities on
minority and low-income populations, in accordance with applicable
laws, regulations, and Executive Orders.
Evaluation means the process whereby the performance of plans and
designs relative to desired objectives is forecast through predictive
modeling and other tools.
Expected performance level means the projected level of benefits to
the natural system and human environment described in the Plan.
External peer review means a process to review and validate the
scientific and technical processes and information developed for
implementation of the Plan that is independent of the agencies involved
in the implementation of the Plan.
Goals and purposes of the Plan means the restoration, preservation,
and protection of the South Florida ecosystem while providing for other
water-related needs of the region, including water supply and flood
protection.
Governor means the Governor of the State of Florida.
Guidance memorandum means the specific procedure, process, or other
guidance specified in Sec. 385.5(b) that is developed and approved by
the Secretary of the Army with the concurrence of the Secretary of the
Interior and the Governor.
Improved or new flood protection benefits means increased or new
levels of service for flood protection that are identified in a Project
Implementation Report and approved as a purpose of the project.
Independent scientific review means the process established
pursuant to section 601(j) of WRDA 2000 to review the Plan's progress
toward achieving the natural system restoration goals of the Plan.
Individual feature of the Plan means a component or group of
components of the Plan related to and limited to one specific project
of the Plan.
Interim goal is a means by which restoration success of the Plan
may be evaluated throughout the implementation process. Interim goals
provide a means of tracking restoration performance, as well as a basis
for reporting on the progress made at specified intervals of time
towards restoration of the South Florida ecosystem, and for
periodically evaluating the accuracy of predictions of system responses
to the effects of the Plan.
Interim target is a means by which the success of the Plan in
providing for other water-related needs of the region, including water
supply and flood protection, may be evaluated throughout the
implementation process. Interim targets provide a means of tracking
Plan performance, as well as a basis for reporting on progress made at
specified intervals of time towards providing for other water-related
needs of the region, and for periodically evaluating the accuracy of
predictions of system responses to the effects of the Plan.
Justified has the same meaning as in section 601(f)(2) of WRDA 2000
which states that the Secretary of the Army, in carrying out any
activity to restore, preserve, or protect the South Florida ecosystem,
may determine that an activity is justified by the environmental
benefits derived by the South Florida ecosystem and no further economic
justification for the activity is required, if the Secretary determines
that the activity is cost-effective.
Levels of service for flood protection means the expected
performance of the Central and Southern Project and other water
management systems in the South Florida ecosystem, consistent with
applicable law, for a specific area or region.
Master Implementation Sequencing Plan means the document that
describes the sequencing and scheduling for the projects of the Plan.
Mediation means a non-binding dispute resolution process designed
to assist the disputing parties to resolve a disagreement. In
mediation, the parties mutually select a neutral and impartial third
party to facilitate the negotiations.
Monitoring means the systematic process of collecting data designed
to show the status, trends, and relationships of elements of the
natural system and human environment at specific locations and times.
Natural system means all land and water managed by the Federal
government or the State within the South Florida ecosystem including,
but not limited to, water conservation areas; sovereign submerged land;
Everglades National Park; Biscayne National Park; Big Cypress National
Preserve; other Federal or State (including a political subdivision of
a State) land that is designated and managed for conservation purposes;
the contiguous near-shore coastal water of South Florida; and, any
tribal land that is designated and managed for conservation purposes,
as approved by the tribe.
Next-added increment means the evaluation of an alternative as the
next project to be added to a system of projects already implemented.
For the purposes of this part, this means analyzing an alternative as
the next project to be added to a system of projects that includes only
those projects that have been approved according to general provision
of law or specific authorization of Congress and are likely to have
been implemented by the time the project being evaluated is completed.
Non-Federal sponsor means a legally constituted public body that
has full authority and capability to perform the terms of the Project
Cooperation Agreement and the ability to pay damages, if necessary, in
the event of failure to perform, pursuant to section 221 of the Flood
Control Act of 1970, as amended (42 U.S.C. 1962d-5b).
Operating Manuals means the set of documents that describe how the
projects of the Plan and the Central and Southern Florida Project are
to be operated to ensure that the goals and purposes of the Plan are
achieved. Operating Manuals include the System Operating Manual and
Project Operating Manuals. Operating Manuals contain water control
plans, regulation schedules, and operating criteria for project and/or
system regulations as well as additional information necessary to
operate projects to ensure that the goals and purposes of the Plan are
achieved.
Optimize means to follow a reasonable and practical process for
developing a plan that returns the greatest excess of benefits, both
monetary and non-monetary, over costs.
Outreach means activities undertaken to inform the public about the
Plan and activities associated with implementation of the Plan, and to
involve the public in the decision-making process for implementing the
Plan.
Performance measure means an element or component of the natural
system or human environment that is expected to be influenced by the
Plan that has been selected to be evaluated or monitored as
representative of a class of responses to implementation of the Plan
and compared with a level of output that is expected and desired during
or following the implementation of the Plan.
Periodic CERP update means the evaluation of the Plan that is
conducted periodically with new or updated modeling that includes the
latest available scientific, technical, and planning information.
[[Page 64224]]
Pilot project means a project undertaken to address uncertainties
associated with certain components of the Plan such as aquifer storage
and recovery, in-ground reservoir technology, seepage management, and
wastewater reuse. The purpose of pilot projects is to develop
information necessary to better determine the technical feasibility of
these components prior to development of a Project Implementation
Report.
Pilot Project Design Report means the report that contains the
technical information necessary to implement a pilot project.
Pilot Project Technical Data Report means the report that documents
the findings and conclusions from the implementation and testing phases
of a pilot project.
Plan means the Comprehensive Everglades Restoration Plan contained
in the ``Final Integrated Feasibility Report and Programmatic
Environmental Impact Statement,'' dated April 1, 1999, as modified by
section 601 of WRDA 2000, and any subsequent modification authorized in
law.
Plans and specifications means the information required to bid and
construct the recommended project described in the Project
Implementation Report.
Pre-CERP baseline means the hydrologic conditions in the South
Florida ecosystem on the date of enactment of WRDA 2000, as modeled by
using a multi-year period of record based on assumptions such as land
use, population, water demand, water quality, and assumed operations of
the Central and Southern Florida Project.
Program-level activity means those tasks, activities, or products
that support more than one project or that are system-wide in scope.
Program Management Plan means the document that describes the
activities, tasks, and responsibilities that will be used to produce
and deliver the products that comprise a program-level activity.
Project means a component or group of components of the Plan that
are implemented together to provide functional benefits towards
achieving the goals and purposes of the Plan.
Project Cooperation Agreement (PCA) means the legal agreement
between the Department of the Army and a non-Federal sponsor that is
executed prior to project construction. The Project Cooperation
Agreement describes the financial, legal, and other responsibilities
for construction, operation, maintenance, repair, rehabilitation, and
replacement of a project.
Project Delivery Team means the inter-agency, interdisciplinary
team led by the Corps of Engineers and the non-Federal sponsor that
develops the technical products necessary to implement a project.
Project Implementation Report (PIR) means the report prepared by
the Corps of Engineers and the non-Federal sponsor pursuant to section
601(h)(4)(A) of WRDA 2000 and described in section 10.3 of the ``Final
Integrated Feasibility Report and Programmatic Environmental Impact
Statement,'' dated April 1, 1999.
Project Management Plan means the document that describes the
activities, tasks, and responsibilities that will be used to produce
and deliver the products necessary to implement a project.
Project Operating Manual means the manual that describes the
operating criteria for a project or group of projects of the Plan. The
Project Operating Manual is considered a supplement to the System
Operating Manual and presents more detailed information on the
operation of a specific project or group of projects.
Public means any individuals, organizations, or non-Federal unit of
government that might be affected by or interested in the
implementation of the Plan. The public includes regional, State, and
local government entities and officials, public and private
organizations, including community-based organizations, Native American
(Indian) tribes, and individuals.
Quality control plan means the plan prepared in accordance with
applicable regulations and policies of the Corps of Engineers that
describes the procedures that will be employed to insure compliance
with all technical and policy requirements of the Corps of Engineers
and the non-Federal sponsor.
Reservation of water for the natural system means the actions taken
by the South Florida Water Management District or the Florida
Department of Environmental Protection, pursuant to Florida law, to
legally reserve water from allocation for consumptive use for the
protection of fish and wildlife.
Restoration means the recovery and protection of the South Florida
ecosystem so that it once again achieves and sustains those essential
hydrological and biological characteristics that defined the
undisturbed South Florida ecosystem. As authorized by Congress, the
restored South Florida ecosystem will be significantly healthier than
the current system; however it will not completely replicate the
undisturbed South Florida ecosystem.
Restoration Coordination and Verification (RECOVER) means the
interagency and interdisciplinary scientific and technical team
described in the ``Final Integrated Feasibility Report and Programmatic
Environmental Impact Statement,'' dated April 1, 1999 and established
by the Corps of Engineers and the South Florida Water Management
District to: ensure that a system-wide perspective is maintained;
ensure the highest quality scientific and technical information is
applied throughout the implementation process; and to assess, evaluate,
and integrate the projects of the Plan with the overall goal of
ensuring that the goals and purposes of the Plan are achieved.
South Florida ecosystem means the area consisting of the land and
water within the boundary of the South Florida Water Management
District in effect on July 1, 1999, including but not limited to, the
Everglades, the Florida Keys, and the contiguous near-shore coastal
water of South Florida.
South Florida Ecosystem Restoration Task Force (Task Force) means
the task force established pursuant to section 528(f) of WRDA 1996 (110
Stat. 3770).
South Florida Water Management District (SFWMD) means the public
body constituted by the State of Florida pursuant to Chapter 373.069 of
the Florida Statutes.
State means the State of Florida.
System Operating Manual means the Operating Manual that provides an
integrated system-wide framework for operating all of the implemented
projects of the Plan and the Central and Southern Florida Project.
System-wide means pertaining to the Central and Southern Florida
Project or the South Florida ecosystem, as a whole.
Technical review means the process that confirms that the
engineering, economic, environmental, and other aspects of project
formulation and design are in accord with appropriate Federal, State,
and Corps of Engineers established standards and criteria, regulations,
laws, codes, principles, and professional procedures that are necessary
to ensure a quality product. Technical review also confirms the
constructability and effectiveness of the product and the use of
clearly justified and valid assumptions and methodologies.
Technical Review Team means the team established by the Corps of
Engineers and the non-Federal sponsor to ensure quality control of
documents and products produced by the Project
[[Page 64225]]
Delivery Team through periodic technical reviews of the technical
aspects of projects.
Water budget means an account of all water inflows, outflows, and
changes in storage over a period of time.
Water dedicated and managed for the natural system means the water
to be reserved or allocated for the natural system under State law as
identified in a Project Implementation Report.
Water made available means the water expected to be generated
pursuant to the implementation of a project of the Plan in accordance
with the Project Implementation Report for that project.
Without CERP condition means the conditions predicted (forecast) in
the South Florida ecosystem without implementation of any of the
projects of the Plan.
WRDA 1996 means the Water Resources Development Act of 1996, Public
Law 104-303, which was enacted on October 12, 1996.
WRDA 2000 means the Water Resources Development Act of 2000, Public
Law 106-541, which was enacted on December 11, 2000.
Sec. 385.4 Limitation on applicability of programmatic regulations.
In accordance with section 601(h)(3)(c)(ii) of WRDA 2000, this
part expressly prohibits ``the requirement for concurrence by the
Secretary of the Interior or the Governor on Project Implementation
Reports, Project Cooperation Agreements, Operating Manuals for
individual projects undertaken in the Plan, and any other documents
relating to the development, implementation, and management of
individual features of the Plan, unless such concurrence is provided
for in other Federal or State laws.''
Sec. 385.5 Guidance memoranda.
(a) General. (1) Technical guidance for internal management of
Corps of Engineers personnel during Plan implementation will be
normally issued in the form of Engineer Regulations, Circulars,
Manuals, or Pamphlets, or other appropriate form of guidance.
(2) Guidance on the following six program-wide subjects shall be
promulgated in accordance with paragraphs (b) and (c) of this section:
(i) General format and content of Project Implementation Reports
(Sec. 385.26(a));
(ii) Instructions for formulation and evaluation of alternatives
developed for Project Implementation Reports, their cost effectiveness
and impacts (Sec. 385.26(b));
(iii) General content of operating manuals (Sec. 385.28(a));
(iv) General directions for the conduct of the assessment
activities of RECOVER (Sec. 385.31(b));
(v) Instructions relevant to Project Implementation Reports for
identifying the appropriate quantity, timing, and distribution of water
to be dedicated and managed for the natural system (Sec. 385.35(b));
and
(vi) Instructions relevant to Project Implementation Reports for
identifying if an elimination or transfer of existing legal sources of
water will occur as a result of implementation of the Plan (Sec.
385.36(b)).
(b) Special processes for development of six program-wide guidance
memoranda. The Corps of Engineers and the South Florida Water
Management District shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole
Tribe of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, develop the six guidance
memoranda described in paragraph (a) of this section for approval by
the Secretary of the Army. The Corps of Engineers and the South Florida
Water Management District shall also consult with the South Florida
Ecosystem Restoration Task Force in the development of these guidance
memoranda. The following procedures shall apply to the specific
guidance memoranda described in paragraph (a) of this section:
(1) Guidance memoranda shall be consistent with this part,
applicable law, and achieving the goals and purposes of the Plan.
(2) The Secretary of the Army shall afford the public an
opportunity to comment on each guidance memorandum prior to approval
through the issuance of a notice of availability in the Federal
Register.
(3) Approved guidance memoranda shall be made available to the
public.
(4) The guidance memoranda specifically referenced in this part
shall be developed by December 13, 2004.
(5) The six guidance memoranda described in paragraph (a) of this
section shall be developed with the concurrence of the Secretary of the
Interior and the Governor. Within 180 days after being provided with
the final guidance memorandum, or such shorter period that the
Secretary of the Interior and the Governor may agree to, the Secretary
of the Interior and the Governor shall provide the Secretary of the
Army with a written statement of concurrence or non-concurrence with
the proposed guidance memorandum. A failure to provide a written
statement of concurrence or non-concurrence within such time frame
shall be deemed as meeting the concurrency requirements of this
section. A copy of any concurrency or nonconcurrency statements shall
be made a part of the administrative record and referenced in the final
guidance memorandum. Any nonconcurrency statement shall specifically
detail the reason or reasons for the non-concurrence. If the six
guidance memoranda described in paragraph (a) of this section create a
special procedure for any individual Project Implementation Report, a
specific Project Cooperation Agreement, an Operating Manual for a
specific project component, or any other document relating to the
development, implementation, and management of one specific individual
feature of the Plan, this section does not require concurrence or non-
concurrence on that special procedure. In lieu of concurrence or non-
concurrence on such a special procedure, the Secretary of the Army
shall consult with the Secretary of the Interior and the Governor.
(6) The Secretary of the Army shall consider incorporating into the
regulations of this part the guidance memoranda specifically referenced
in this section during future reviews and revisions of the regulations
of this part.
(c) Revisions to six Program-wide guidance memoranda. The Secretary
of the Army may, whenever the Secretary believes it is necessary, and
in consultation with the Department of the Interior, the Environmental
Protection Agency, the Department of Commerce, the Miccosukee Tribe of
Indians of Florida, the Seminole Tribe of Florida, the South Florida
Water Management District, the Florida Department of Environmental
Protection, other Federal, State, and local agencies, and the public,
revise guidance memoranda that have been completed. Such revisions
shall be developed and approved consistent with the provisions of
paragraph (b) of this section. Revisions to the six guidance memoranda
described in paragraph (a) of this section shall be made following the
same concurrence process as in paragraph (b)(5) of this section.
(d) Other guidance. Nothing in this part shall be considered or
construed to preclude the ability of the Corps of Engineers, the South
Florida Water Management District, and other non-Federal sponsors from
issuing other guidance or policy to assist in implementing the Plan.
Any such guidance or policy shall be consistent
[[Page 64226]]
with applicable law, policy, and regulations.
Sec. 385.6 Review of programmatic regulations.
(a) The Secretary of the Army shall review, and if necessary
revise, the regulations of this part at least every five years. In
addition, the Secretary of the Army may review and revise the
regulations of this part whenever the Secretary believes that such
review and revision is necessary to attain the goals and purposes of
the Plan. The Secretary of the Army shall place appropriate notice in
the Federal Register upon initiating review of the regulations of this
part.
(b) Upon completing the review of the regulations of this part, the
Secretary shall promulgate any revisions to the regulations after
notice and opportunity for public comment in accordance with applicable
law, with the concurrence of the Secretary of the Interior and the
Governor, and in consultation with the Seminole Tribe of Florida, the
Miccosukee Tribe of Indians of Florida, the Administrator of the
Environmental Protection Agency, the Secretary of Commerce, and other
Federal, State, and local agencies.
(c) Within 180 days after being provided with the final revisions
to the programmatic regulations of this part, or such shorter period
that the Secretary of the Interior and Governor may agree to, the
Secretary of the Interior and the Governor shall provide the Secretary
of the Army with a written statement of concurrence or non-concurrence
with the revisions. A failure to provide a written statement of
concurrence or non-concurrence within such time frame shall be deemed
as meeting the concurrency process of paragraph (b) of this section. A
copy of any concurrency or nonconcurrency statements shall be made a
part of the administrative record and referenced in the final revised
programmatic regulations. Any non-concurrency statement shall
specifically detail the reason or reasons for the non-concurrence.
Sec. 385.7 Concurrency statements.
The administrative record of the programmatic regulations in this
part contains a copy of the concurrency statements by the Secretary of
the Interior and the Governor to the Secretary of the Army. The
concurrency statements can be obtained from the Army Corps of
Engineers, Jacksonville District, 701 San Marco Blvd., Jacksonville,
Florida 32207, or by accessing the programmatic regulations Web page
at: http://www.evergladesplan.org/pm/progr_regs_final_rule.cfm.
Subpart B--Program Goals and Responsibilities
Sec. 385.8 Goals and purposes of the Comprehensive Everglades
Restoration Plan.
(a) The Comprehensive Everglades Restoration Plan (CERP) is a
framework for modifications and operational changes to the Central and
Southern Florida Project. The overarching objective of the Plan is the
restoration, preservation, and protection of the South Florida
ecosystem while providing for other water-related needs of the region,
including water supply and flood protection.
(b) The Corps of Engineers, the South Florida Water Management
District, and other non-Federal sponsors shall, in consultation with
the Department of the Interior, the Environmental Protection Agency,
the Department of Commerce, the Miccosukee Tribe of Indians of Florida,
the Seminole Tribe of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, implement the
Plan, as authorized by Congress, to ensure the protection of water
quality in, the reduction of the loss of fresh water from, and the
improvement of the environment of the South Florida ecosystem and to
achieve and maintain the benefits to the natural system and human
environment described in the Plan, and required pursuant to section 601
of WRDA 2000, for as long as the project is authorized.
(c) The goal of the Plan is to restore, preserve, and protect the
South Florida ecosystem while providing for other water-related needs
of the region. The Plan is designed to accomplish this by providing the
quantity, quality, timing, and distribution of water necessary to
achieve and sustain those essential hydrological and biological
characteristics that defined the undisturbed South Florida ecosystem.
As authorized by Congress, the restored South Florida ecosystem will be
significantly healthier than the current system; however it will not
completely replicate the undisturbed South Florida ecosystem and some
areas may more closely replicate the undisturbed ecosystem than others.
Initial modeling showed that most of the water generated by the Plan
would go to the natural system in order to attain restoration goals,
and the remainder of the water would go for use in the human
environment. The Corps of Engineers, the South Florida Water Management
District, and other non-Federal sponsors shall ensure that Project
Implementation Reports identify the appropriate quantity, timing, and
distribution of water to be dedicated and managed for the natural
system that is necessary to meet the restoration goals of the Plan. In
accordance with the ``Comprehensive Everglades Restoration Plan
Assurance of Project Benefits Agreement,'' dated January 9, 2002
pursuant to section 601(h)(2) of WRDA 2000, the South Florida Water
Management District or the Florida Department of Environmental
Protection shall make sufficient reservations of water for the natural
system under State law in accordance with the Project Implementation
Report for that project and consistent with the Plan before water made
available by a project is permitted for a consumptive use or otherwise
made unavailable.
(d) The Corps of Engineers and non-Federal sponsors shall implement
the Plan in a manner to continuously improve the expected performance
level of the Plan based upon new information resulting from changed or
unforeseen circumstances, new scientific and technical information, new
or updated modeling; information developed through the adaptive
assessment principles contained in the Plan; and future authorized
changes to the Plan integrated into the implementation of the Plan.
Sec. 385.9 Implementation principles.
The Corps of Engineers and the South Florida Water Management
District and other non-Federal sponsors shall, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Miccosukee Tribe of Indians of Florida, the
Seminole Tribe of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, conduct
activities, including program-level activities, necessary to implement
the Plan. Such activities shall be conducted as part of an integrated
implementation program, in accordance with this part, and based on the
following principles:
(a) Individual projects shall be formulated, evaluated, and
justified based on their ability to contribute to the goals and
purposes of the Plan and on their ability to provide benefits that
justify costs on a next-added increment basis.
(b) Interim goals shall be established in accordance with Sec.
385.38 to provide a means for evaluating restoration success of the
Plan at specific time intervals during implementation. Interim targets
to evaluate progress on
[[Page 64227]]
providing for other water-related needs of the region provided for in
the Plan shall be established in accordance with Sec. 385.39. Interim
goals and interim targets shall be consistent with each other.
(c) Endorsement of the Plan as a restoration framework is not
intended as a constraint on innovation during implementation through
the adaptive management process. Continuous improvement of the Plan
shall be sought to ensure that new information resulting from changed
or unforeseen circumstances, new scientific and technical information,
new or updated modeling; information developed through the assessment
principles contained in the Plan; and future authorized changes to the
Plan are integrated into the implementation of the Plan. The adaptive
management process provides a means for analyzing the performance of
the Plan and assessing progress towards meeting the goals and purposes
of the Plan as well as a basis for improving the performance of the
Plan. Improving the performance of the Plan means enhancing the
benefits of the Plan in terms of restoration of the natural system
while providing for other water-related needs of the region, including
water supply and flood protection.
Sec. 385.10 Implementation responsibilities, consultation, and
coordination.
(a) Implementing agencies. Implementation of the Plan shall be the
responsibility of the Corps of Engineers and the non-Federal sponsors.
(b) Consultation. (1) Consultation with tribes. (i) In addition to
any other applicable provision for consultation with Native American
Tribes, including but not limited to, laws, regulations, executive
orders, and policies the Corps of Engineers and non-Federal sponsors
shall consult with and seek advice from the Miccosukee Tribe of Indians
of Florida and the Seminole Tribe of Florida throughout the
implementation process to ensure meaningful and timely input by tribal
officials regarding programs and activities covered by this part.
Consultation with the tribes shall be conducted on a government-to-
government basis.
(ii) In carrying out their responsibilities under section 601 of
WRDA 2000 with respect to the restoration of the South Florida
ecosystem, the Secretary of the Army and the Secretary of the Interior
shall fulfill any obligations to the Indian tribes in South Florida
under the Indian trust doctrine as well as other applicable legal
obligations.
(2) Consultation with agencies. The Corps of Engineers and non-
Federal sponsors shall consult with and seek advice from the Department
of the Interior, the Environmental Protection Agency, the Department of
Commerce, the Florida Department of Environmental Protection, and other
Federal, State, and local agencies throughout the implementation
process to ensure meaningful and timely input by those agencies
regarding programs and activities covered under this part. The time
for, and extent of, consultation shall be appropriate for, and limited
by, the activity involved.
(c) Coordination. The Corps of Engineers and the non-Federal
sponsor shall coordinate implementation activities and the preparation
of documents with other Federal, State, and local agencies and the
tribes to fulfill the requirements of all applicable Federal and State
laws, including but not limited to, the Fish and Wildlife Coordination
Act, the National Environmental Policy Act, the Clean Air Act, the
Clean Water Act, the National Historic Preservation Act, the Coastal
Zone Management Act, the Marine Mammal Protection Act, and the
Endangered Species Act.
(d) Timeliness obligations of consultation. Consultation involves
reciprocal obligations: on the part of the Corps of Engineers and the
non-Federal sponsor to involve agencies, tribes, and the public at an
early stage and in such a way to ensure meaningful consultation, and on
the part of the parties consulted to respond in a timely and meaningful
fashion so that the implementation of the Plan is not jeopardized and
so that delays do not result in other adverse consequences to
restoration of the natural system, to the other goals and purposes of
the Plan, or to the public interest generally. Prescribed time limits
set by regulation are too inflexible for the entire consultation
process. It is expected that the Corps of Engineers and the non-Federal
sponsor will set reasonable time limits for consultation on specific
decisions consistent with the purposes of this part and that the
parties will consult in a timely and meaningful way. The Corps of
Engineers and the non-Federal sponsor recognize that the time limits
established for each specific decision will be proportionate to the
complexity of the decision and will take into account the resources of
the entity with whom the consultation is occurring in order to allow
consultation to occur in a meaningful way. This part does not intend
for a delay in consultation to be used as a de facto veto power. This
part authorizes the Corps of Engineers and the non-Federal sponsor to
set reasonable limits on the amount of time for consultation. In
setting reasonable time limits, the agencies and tribes may consider
relevant considerations such as sequencing of projects, planning,
contracting and funding, and any factor listed for setting time limits
for consulting under the National Environmental Policy Act (NEPA) (40
CFR 1501.8), including but not limited to, the nature and size of the
proposed action, the degree to which relevant information is known or
obtainable, the degree to which the action is controversial, the state
of the art of analytical techniques, the number of persons affected,
and the consequences of delay. In engaging in consultation, the Corps
of Engineers and non-Federal sponsor shall inform the agencies, tribes,
and public of the ending date for consultation. In addition, the
agencies and tribes should adhere to all time limits imposed by law,
regulations or executive order. In appropriate circumstances, the Corps
of Engineers and the non-Federal sponsor may extend the time for
consultation upon a showing that delays will not result in adverse
consequences to the implementation of the Plan, to the restoration of
the natural system, to the other goals and purposes of the Plan, or to
the public interest and that relevant considerations justify a longer
time. Failure of an agency, tribe or the public to engage in
consultation with the Corps of Engineers and the non-Federal sponsor,
or file comments in, a timely and meaningful way shall not be a
sufficient reason for extending a consultation or comment period.
Nothing in this part is intended to alter existing time limits
established by statute or other regulations.
(e) South Florida Ecosystem Restoration Task Force. The Department
of the Army recognizes the valuable role that the South Florida
Ecosystem Restoration Task Force (Task Force), its working group, and
its other advisory bodies play in the discussion and resolution of
issues related to the South Florida ecosystem. The Corps of Engineers
and the South Florida Water Management District regularly brief the
Task Force on the Plan and regularly serve on the working group and
other advisory bodies. The Corps of Engineers and the South Florida
Water Management District and other non-Federal sponsors shall continue
to provide information to, and consult with, the South Florida
Ecosystem Restoration Task Force, the Florida-based working group, and
advisory
[[Page 64228]]
bodies to the Task Force as appropriate throughout the implementation
process for the Plan. In addition to consultation with the Task Force
specified elsewhere in this part, the Corps of Engineers and the South
Florida Water Management District shall consult with the South Florida
Ecosystem Restoration Task Force, its working group, and its advisory
bodies, on other matters related to the implementation of the Plan, as
the Task Force from time to time may request. Pursuant to the
provisions of WRDA 1996, the Task Force shall provide general input
concerning the implementation of the Plan. The Task Force shall provide
recommendations to the Secretary of the Army regarding the
implementation of the Plan, as provided in this part. The Secretary of
the Army shall notify the Task Force to ensure it is afforded an
opportunity to review and provide recommendations on reports and
products, including but not limited to, interim goals and interim
targets, Project Implementation Reports, Pilot Project Design Reports,
Pilot Project Technical Data Reports, the pre-CERP baseline, assessment
reports, guidance memoranda, Master Implementation Sequencing Plan,
Comprehensive Plan Modification Reports, periodic CERP updates, and
reports to Congress prepared pursuant to Sec. 385.40.
Subpart C--CERP Implementation Processes
Sec. 385.11 Implementation process for projects.
Generally, the Corps of Engineers and non-Federal sponsors shall
develop and implement projects in accordance with the process that is
shown in figure 1 in Appendix A of this part. Typical steps in this
process involve:
(a) Project Management Plan. The Project Management Plan describes
the activities, tasks, and responsibilities that will be used to
produce and deliver the products necessary to implement the project.
(b) Project Implementation Report. The Project Implementation
Report provides information on plan formulation and evaluation,
engineering and design, estimated benefits and costs, and environmental
effects to bridge the gap between the conceptual design included in the
Plan and the detailed design necessary to proceed to construction. The
Project Implementation Reports will also set forth additional
information and analyses necessary for the Secretary of the Army or
Congress to approve the project for implementation.
(c) Plans and specifications. During this phase, final design of
the project is completed and plans and specifications are prepared.
Plans and specifications contain the information necessary to bid and
construct the project.
(d) Real estate acquisition. The lands, easements, and rights-of
way, and relocations necessary for the project are acquired prior to
construction.
(e) Construction. This phase is the actual construction of a
project's components and includes an interim operation and monitoring
period to ensure that the project operates as designed.
(f) Operation. After construction of the project has been
completed, it is operated in accordance with the System Operating
Manual and the Project Operating Manual.
(g) Monitoring and assessment. After the project has been
constructed, monitoring is conducted as necessary to assess the
effectiveness of the project and to provide information that will be
used for the adaptive management program.
Sec. 385.12 Pilot projects.
(a) The Plan includes pilot projects to address uncertainties
associated with certain components such as aquifer storage and
recovery, in-ground reservoir technology, seepage management, and
wastewater reuse. The purpose of the pilot projects is to develop
information necessary to better determine the technical feasibility of
these components prior to development of a Project Implementation
Report.
(b) Prior to initiating activities on a pilot project, the Corps of
Engineers and the non-Federal sponsor shall develop a Project
Management Plan as described in Sec. 385.24.
(c) Project Implementation Reports shall not be necessary for pilot
projects. Prior to implementing a pilot project, the Corps of Engineers
and the non-Federal sponsor shall prepare a Pilot Project Design
Report.
(1) The Pilot Project Design Report shall contain the technical
information necessary to construct the pilot project including
engineering and design, cost estimates, real estate analyses, and
appropriate NEPA documentation.
(2) The Pilot Project Design Report shall include a detailed
operational testing and monitoring plan necessary to develop
information to assist in better determining the technical feasibility
of certain components prior to development of a Project Implementation
Report.
(3) In accordance with Sec. 385.18, the Corps of Engineers and the
non-Federal sponsor shall provide the public with opportunities to
review and comment on the draft Pilot Project Design Report.
(4) The Corps of Engineers and the non-Federal sponsor shall
approve the final Pilot Project Design Report in accordance with
applicable law.
(d) Upon completion of operational testing and monitoring, the
Corps of Engineers and the non-Federal sponsor shall, in consultation
with the Department of the Interior, the Environmental Protection
Agency, the Department of Commerce, the Miccosukee Tribe of Indians of
Florida, the Seminole Tribe of Florida, the Florida Department of
Environmental Protection, and other Federal, State, and local agencies,
prepare a Pilot Project Technical Data Report, documenting the findings
and conclusions from the operational testing and monitoring of the
pilot project. The purpose of the Pilot Project Technical Data Report
is to help assess the viability of technology and to assist in the
development of the full-scale project. The Corps of Engineers and the
non-Federal sponsor shall also consult with the South Florida Ecosystem
Restoration Task Force in preparing the report.
(1) In accordance with Sec. 385.22(b), the draft Pilot Project
Technical Data Report shall be externally peer reviewed.
(2) In accordance with Sec. 385.18, the public shall be provided
with opportunities to review and comment on the draft Pilot Project
Technical Data Report.
(3) The final Pilot Project Technical Data Report shall be made
available to the public.
Sec. 385.13 Projects implemented under additional program authority.
(a) To expedite implementation of the Plan, the Corps of Engineers
and non-Federal sponsors may implement projects under the authority of
section 601(c) of WRDA 2000 that are described in the Plan and that
will produce a substantial benefit to the restoration, preservation,
and protection of the South Florida ecosystem.
(b) Each project implemented under the authority of section 601(c)
of WRDA 2000 shall:
(1) In general, follow the process described in Sec. 385.11;
(2) Not be implemented until a Project Implementation Report is
prepared and approved in accordance with Sec. 385.26; and
(3) Not exceed a total cost of $25,000,000.
(c) The total aggregate cost of all projects implemented under the
additional program authority shall not exceed $206,000,000.
[[Page 64229]]
Sec. 385.14 Incorporation of NEPA and related considerations into the
implementation process.
(a) General. (1) In implementing the Plan, the Corps of Engineers
shall comply with the requirements of NEPA (42 U.S.C. 4371, et seq.)
and applicable implementing regulations, including determining whether
a specific action, when considered individually and cumulatively, will
have a significant impact on the human environment.
(2) As appropriate, other agencies shall be invited to be
cooperating agencies in the preparation of NEPA documentation pursuant
to Sec. 230.16 of this chapter.
(3) The District Engineer is the NEPA official responsible for
compliance with NEPA for actions conducted to implement the Plan.
Unless otherwise provided for by this part, NEPA coordination for
implementation of the plan shall follow the NEPA procedures established
in part 230 of this chapter.
(b) Actions normally requiring an Environmental Impact Statement
(EIS). (1) In addition to the actions listed in Sec. 230.6 of this
chapter, actions normally requiring an EIS are:
(i) Comprehensive Plan Modification Reports;
(ii) System Operating Manual or significant changes to the System
Operating Manual;
(iii) Project Implementation Reports, including the draft Project
Operating Manual when included in the Project Implementation Report;
(iv) Pilot Project Design Reports, including the detailed
operational testing and monitoring plan; and
(v) Project Operating Manuals for any project where a Project
Implementation Report is not prepared, or significant changes to
Project Operating Manuals.
(2) The District Engineer may consider the use of an environmental
assessment (EA) on the types of actions described in this paragraph if
early studies and coordination show that a particular action,
considered individually and cumulatively, is not likely to have a
significant impact on the quality of the human environment.
(c) Actions normally requiring an EA, but not necessarily an EIS.
In addition to the actions listed in Sec. 230.7 of this chapter,
actions normally requiring an EA, but not necessarily an EIS, are
modifications to Project Operating Manuals or the System Operating
Manual, that do not provide for significant change in operation and/or
maintenance.
(d) Categorical exclusions. In addition to the activities listed in
Sec. 230.9 of this chapter, the following actions do not require
separate NEPA documentation, either because, when considered
individually and cumulatively, they do not have significant effects on
the quality of the human environment or because any such effects will
already have been considered in NEPA documentation prepared in
accordance with paragraphs (b) and (c) of this section. However, the
District Engineer should be alert for extraordinary circumstances that
may dictate the need to prepare an EA or an EIS. Even though an EA or
EIS is not indicated for a Federal action because of a ``categorical
exclusion,'' that fact does not exempt the action from compliance with
any other applicable Federal, State, or Tribal law, including but not
limited to, the Endangered Species Act, the Fish and Wildlife
Coordination Act, the National Historic Preservation Act, the Clean
Water Act, Clean Air Act, the Coastal Zone Management Act, and the
Marine Mammal Protection Act.
(1) Project Cooperation Agreements;
(2) Project Management Plans;
(3) Program Management Plans;
(4) Plans and specifications for projects;
(5) Pilot Project Technical Data Reports;
(6) Assessment reports prepared for the adaptive management
program;
(7) Interim goals and interim targets;
(8) Development or revision of guidance memoranda or methods such
as adaptive management, monitoring, plan formulation and evaluation,
quantification of water needed for the natural system or protection of
existing uses, methods of determining levels of flood protection, and
similar guidance memoranda or methods; and
(9) Deviations from Operating Manuals for emergencies and unplanned
minor deviations when, considered individually and cumulatively, they
do not have significant effects on the quality of the human
environment, as described in applicable Corps of Engineers regulations,
including Sec. 222.5(f)(4) and Sec. 222.5(i)(5) of this chapter, and
Engineer Regulation ER 1110-2-8156 ``Preparation of Water Control
Manuals.''
Sec. 385.15 Consistency with requirements of the State of Florida.
The State of Florida has established procedures, requirements, and
approvals that are needed before the State or the South Florida Water
Management District can participate as the non-Federal sponsor for
projects of the Plan. Project Implementation Reports shall include such
information and analyses, consistent with this part, as are necessary
to facilitate review and approval of projects by the South Florida
Water Management District and the State pursuant to the requirements of
Florida law.
Sec. 385.16 Design agreements.
(a) The Corps of Engineers shall execute a design agreement with
each non-Federal sponsor for the projects of the Plan prior to
initiation of design activities with that non-Federal sponsor.
(b) Any procedures, guidance, or documents developed by the Corps
of Engineers and the non-Federal sponsor pursuant to a design agreement
shall be consistent with this part.
Sec. 385.17 Project Delivery Team.
(a) In accordance with the procedures of the Corps of Engineers
business process described in Engineer Regulation ER 5-1-11 ``US Army
Corps of Engineers Business process,'' the Corps of Engineers and the
non-Federal sponsor shall form a Project Delivery Team to develop the
products necessary to implement each project.
(b) The Corps of Engineers shall assign, and the non-Federal
sponsor may assign, a project manager to lead the Project Delivery
Team.
(c) The Corps of Engineers and the South Florida Water Management
District shall encourage the participation of other Federal, State, and
local agencies and the Miccosukee Tribe of Indians of Florida and the
Seminole Tribe of Florida on Project Delivery Teams, and use their
expertise to ensure that information developed by the Project Delivery
Team is shared with agencies, tribes, and the public at the earliest
possible time in the implementation process. In forming the Project
Delivery Team, the Corps of Engineers and the non-Federal sponsor shall
request that the Department of the Interior, the Environmental
Protection Agency, the Department of Commerce, the Miccosukee Tribe of
Indians of Florida, the Seminole Tribe of Florida, the Florida
Department of Environmental Protection, and other Federal, State, and
local agencies participate on the Project Delivery Team.
(1) In general, participation on the Project Delivery Team shall be
the financial responsibility of the participating agency or tribe.
However, the Corps of Engineers shall provide funding for the U.S. Fish
and Wildlife Service and the National Marine Fisheries Service to
prepare Fish and Wildlife Coordination Act Reports, as required by
applicable law, regulation, or agency procedures.
(2) Participation by an agency or tribe on the Project Delivery
Team shall not
[[Page 64230]]
be considered or construed to be a substitute for consultation,
coordination, or other activities required by applicable law or this
part.
(d) Documents and work products prepared or developed by the
Project Delivery Team shall not be self-executing, but shall be
provided as information for consideration by the Corps of Engineers and
the non-Federal sponsor, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies.
Sec. 385.18 Public outreach.
(a) Goals. (1) The goal of public outreach is to open and maintain
channels of communication with the public throughout the implementation
process for the Plan in order to:
(i) Provide information about proposed activities;
(ii) Make the public's desires, needs, and concerns known to
decision-makers before decisions are reached; and
(iii) Consider and respond to the public's views in reaching
decisions.
(2) In carrying out implementation activities for the Plan, the
Corps of Engineers and non-Federal sponsors shall undertake outreach
activities to:
(i) Increase general public awareness for the Plan;
(ii) Involve interested groups and interested communities in the
decision-making process and incorporate public values into decisions;
(iii) Better serve and involve minority communities and
traditionally under served communities, persons with limited English
proficiency, and socially and economically disadvantaged individuals;
(iv) Improve the substantive quality of decisions as a result of
public participation; and
(v) Reduce conflict among interested and affected parties by
building agreement or consensus on solutions to emerging issues.
(b) General requirements. (1) The Corps of Engineers and non-
Federal sponsors shall provide a transparent, publicly accessible
process through which scientific and technical information is used in
the development of policy decisions throughout the implementation
process for the Plan.
(2) The Corps of Engineers and non-Federal sponsors shall develop
and conduct outreach activities for project or program-level activities
in order to provide information to the public and to provide
opportunities for involvement by the public.
(3) The Corps of Engineers and non-Federal sponsors shall monitor
the effectiveness of outreach activities throughout the implementation
process.
(4) Project Management Plans and Program Management Plans shall
include information concerning any outreach activities to be undertaken
during the implementation of the project or activity.
(5) Project Delivery Team meetings and RECOVER meetings shall be
open to attendance by the public. The public shall be notified in
advance of these meetings through e-mail, posting on a web site, or
other appropriate means. The public shall be provided with an
opportunity to comment at such meetings.
(6) Public meetings and workshops shall be held at such times and
locations as to facilitate participation by the public.
(7) The Corps of Engineers and non-Federal sponsors shall provide
opportunities for the public to review and comment on draft documents.
(c) Outreach to socially and economically disadvantaged individuals
and communities.
(1) The Corps of Engineers and non-Federal sponsors shall develop
and conduct public outreach activities to ensure that socially and
economically disadvantaged individuals, including individuals with
limited English proficiency, and communities are provided opportunities
to review and comment during implementation of the Plan.
(2) The Corps of Engineers and non-Federal sponsors shall monitor
the effectiveness of outreach activities conducted to ensure that
socially and economically disadvantaged individuals and communities,
including individuals with limited English proficiency, are provided
opportunities to review and comment during implementation of the Plan.
(3) Project Management Plans and Program Management Plans shall
include information, concerning any outreach activities to be
undertaken during the implementation of the project or activity, to
socially and economically disadvantaged individuals and communities,
including individuals of limited English proficiency.
(4) The Corps of Engineers and non-Federal sponsors shall make
project and program information available in languages other than
English where a significant number of individuals in the area affected
by the project or program activity are expected to have limited English
proficiency.
(5) The Corps of Engineers and non-Federal sponsors shall provide
translators or similar services at public meetings where a significant
number of participants are expected to have limited English
proficiency.
Sec. 385.19 Environmental and economic equity.
(a) Project Management Plans and Program Management Plans shall
include information concerning any environmental and economic equity
activities to be undertaken during the implementation of the project or
activity.
(b) As required by applicable laws and policies, the Corps of
Engineers and non-Federal sponsors shall consider and evaluate
environmental justice issues and concerns in the implementation of
projects.
(c) During the implementation of the Plan, through appropriate
means, consistent with section 601(k) of WRDA 2000 and other provisions
of Federal law, the Corps of Engineers and non-Federal sponsors shall
provide information to socially and economically disadvantaged
individuals and communities, including individuals with limited English
proficiency, about potential or anticipated contracting opportunities
that are expected to result from implementation of the Plan.
(d) The District Engineer shall ensure that small business concerns
owned and controlled by socially and economically disadvantaged
individuals are provided opportunities to participate under section
15(g) of the Small Business Act (15 U.S.C. 644(g)) throughout the
implementation process. The District Engineer shall track the amount of
contracts awarded to small business concerns owned and controlled by
socially and economically disadvantaged individuals in order to ensure
that they are provided such opportunities.
Sec. 385.20 Restoration Coordination and Verification (RECOVER).
(a) RECOVER (Restoration Coordination and Verification) is an
interagency and interdisciplinary scientific and technical team
described in the ``Final Integrated Feasibility Report and Programmatic
Environmental Impact Statement,'' dated April 1, 1999. RECOVER was
established by the Corps of Engineers and the South Florida Water
Management District to conduct assessment, evaluation, and planning and
integration activities using the best available science that support
implementation of the Plan with the overall goal of ensuring that the
goals
[[Page 64231]]
and purposes of the Plan are achieved. RECOVER has been organized into
a Leadership Group that provides management and coordination for the
activities of RECOVER and teams that accomplish activities such as:
developing system-wide performance measures; developing and
implementing the monitoring and assessment program; evaluating
alternatives developed by Project Delivery Teams to achieve the goals
and purposes of the Plan; conducting system-wide water quality
analyses; developing, refining, and applying system-wide models and
tools; and evaluating modifications to the Plan. RECOVER is not a
policy making body, but has technical and scientific responsibilities
that support implementation of the Plan.
(b) Documents or work products prepared or developed by RECOVER
shall not be self-executing, but shall be provided as information for
consideration by the Corps of Engineers and the South Florida Water
Management District, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole
Tribe of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies. Technical information
developed by RECOVER shall be available to the public.
(c) The Corps of Engineers and the South Florida Water Management
District shall encourage the participation of other Federal, State, and
local agencies and the Miccosukee Tribe of Indians of Florida and the
Seminole Tribe of Florida on RECOVER, to use their expertise, to ensure
that information developed by RECOVER is shared at the earliest
possible time with agencies, tribes, and the public, and to ensure that
matters of concern are addressed as early as possible. The Corps of
Engineers and the South Florida Water Management District recognize the
special role of the National Oceanic and Atmospheric Administration of
the Department of Commerce, the Florida Fish and Wildlife Conservation
Commission, the Department of the Interior and the Florida Fish and
Wildlife Conservation Commission as stewards of the natural system and
for their technical and scientific activities in support of
restoration. The Corps of Engineers and the South Florida Water
Management District recognize the special role of the Environmental
Protection Agency and the Florida Department of Environmental
Protection in water quality issues. Accordingly, the Corps of Engineers
and the South Florida Water Management District have used and will
continue to use the Department of the Interior, the Department of
Commerce, the Florida Fish and Wildlife Conservation Commission, the
Environmental Protection Agency, and the Florida Department of
Environmental Protection as co-chairs along with the Corps of Engineers
and the South Florida Water Management District on the appropriate
technical teams that have been established to date as part of RECOVER.
(1) In general, participation on RECOVER shall be the financial
responsibility of the participating agency or tribe.
(2) Participation by an agency or tribe on RECOVER shall not be
considered or construed to be a substitute for consultation,
coordination, or other activities required by applicable law, policy,
or regulation.
(d) The Corps of Engineers and the South Florida Water Management
District shall:
(1) Assign program managers from the Corps of Engineers and the
South Florida Water Management District to be responsible for carrying
out the activities of RECOVER; and
(2) Establish a RECOVER Leadership Group to assist the program
managers in coordinating and managing the activities of RECOVER,
including the establishment of sub-teams or other entities, and in
reporting on the activities of RECOVER. In addition to the program
managers, the RECOVER Leadership Group shall, consist of one member
appointed by each of the following:
(i) Environmental Protection Agency;
(ii) National Oceanic and Atmospheric Administration;
(iii) U.S. Fish and Wildlife Service;
(iv) U.S. Geological Survey;
(v) National Park Service;
(vi) Miccosukee Tribe of Indians of Florida;
(vii) Seminole Tribe of Florida;
(viii) Florida Department of Agriculture and Consumer Services;
(ix) Florida Department of Environmental Protection; and
(x) Florida Fish and Wildlife Conservation Commission.
(3) As necessary to assist the program managers, the Corps of
Engineers and the South Florida Water Management District may add
additional members to the RECOVER Leadership Group.
(e) RECOVER shall perform assessment, evaluation, and planning and
integration activities as described in this paragraph.
(1) Assessment activities. In accordance with Sec. 385.31, RECOVER
shall conduct credible scientific assessments of hydrological, water
quality, biological, ecological, water supply, and other responses to
the Plan. The Corps of Engineers and the South Florida Water Management
District will ensure that these assessments incorporate the best
available science and that the results are provided for external peer
review, as appropriate, and are made fully available for public review
and comment. RECOVER shall conduct assessment activities, including,
but not limited to:
(i) Developing proposed assessment performance measures for
assessing progress towards the goals and purposes of the Plan;
(ii) Developing a proposed monitoring plan to support the adaptive
management program;
(iii) Conducting monitoring and assessment activities as part of
the adaptive management program to assess the actual performance of the
Plan;
(iv) Developing recommendations for interim goals in accordance
with Sec. 385.38;
(v) Assessing progress towards achieving the interim goals
established pursuant to Sec. 385.38;
(vi) Developing recommendations for interim targets in accordance
with Sec. 385.39;
(vii) Assessing progress towards achieving the interim targets
established pursuant to Sec. 385.39; and
(viii) Cooperating with the independent scientific review panel and
external peer review in accordance with Sec. 385.22.
(2) Evaluation activities. In accordance with Sec. 385.26(c) and
Sec. 385.32, RECOVER shall assist Project Delivery Teams in ensuring
that project design and performance is fully linked to the goals and
purposes of the Plan and incorporating, as appropriate, information
developed for Project Implementation Reports into the Plan. RECOVER
shall conduct evaluation activities, including, but not limited to:
(i) Developing proposed evaluation performance measures for
evaluating alternative plans developed for the Project Implementation
Report;
(ii) Conducting evaluations of alternative plans developed for
Project Implementation Reports and Comprehensive Plan Modification
Reports; and
(iii) Supporting development and refinement of predictive models
and tools used in the evaluation of alternate plans developed by the
Project Delivery Teams.
(3) Planning and integration activities. RECOVER shall conduct
planning and integration activities, in accordance
[[Page 64232]]
with Sec. 385.31, in support of the adaptive management program as a
basis for identifying opportunities for improving the performance of
the Plan and other appropriate planning and integration activities
associated with implementation of the Plan. RECOVER shall conduct
planning and integration activities, including, but not limited to:
(i) Developing and refining conceptual and predictive models and
tools in support of the integration of new science into the adaptive
management program;
(ii) Reviewing and synthesizing new information and science that
could have an effect on the Plan;
(iii) Developing proposed refinements and improvements in the
design or operation of the Plan during all phases of implementation;
(iv) Preparing technical information to be used in the development
of the periodic reports to Congress prepared pursuant to Sec. 385.40;
and
(v) Analyzing proposed revisions to the Master Implementation
Sequencing Plan.
(f) In carrying out the functions described in this section,
RECOVER shall consider the effects of activities and projects that are
not part of the Plan, but which could affect the ability of the Plan to
achieve its goals and purposes.
(g) As appropriate, the Corps of Engineers and the South Florida
Water Management District shall seek external peer review of RECOVER
activities in accordance with Sec. 385.22(b).
Sec. 385.21 Quality control.
(a) The Corps of Engineers and the non-Federal sponsor shall
prepare a quality control plan, in accordance with applicable Corps of
Engineers regulations, for each product that will be produced by a
Project Delivery Team. The quality control plan shall be included in
the Project Management Plan and shall describe the procedures to be
used to ensure compliance with technical and policy requirements during
implementation.
(b) During development of the Project Management Plan for each
project, the Corps of Engineers and the non-Federal sponsor shall
establish a Technical Review Team to conduct reviews to ensure that
products are consistent with established criteria, guidance,
procedures, and policy. The members of the Technical Review Team shall
be independent of the Project Delivery Team and the project being
reviewed, and should be knowledgeable of design criteria established
for the Plan.
(c) Technical review is intended to be a continuous process
throughout project implementation. The Technical Review Team shall
document its actions and recommendations and provide reports to the
Project Delivery Team at designated points during the implementation
process that shall be described in the quality control plan.
Sec. 385.22 Independent scientific review and external peer review.
(a) The independent scientific review panel required by section
601(j). (1) Section 601(j) of WRDA 2000 requires that the Secretary of
the Army, the Secretary of the Interior, and the Governor, in
consultation with the South Florida Ecosystem Restoration Task Force,
establish an independent scientific review panel, convened by a body,
such as the National Academy of Sciences, to review the Plan's progress
toward achieving the natural system restoration goals of the Plan.
Section 601(j) also directs that this panel produce a biennial report
to Congress, the Secretary of the Army, the Secretary of the Interior,
and the Governor that includes an assessment of ecological indicators
and other measures of progress in restoring the ecology of the natural
system, based on the Plan.
(2) To carry out section 601(j), the Department of the Army, the
Department of the Interior, and the State shall establish an
independent scientific review panel to conduct on-going review of the
progress achieved by the implementation of the Plan in achieving the
restoration goals of the Plan and shall provide the panel with the
resources and cooperation necessary to ensure that the panel is able to
function effectively.
(3) Not later than June 14, 2004, the Secretary of the Army, the
Secretary of the Interior, and the Governor, in consultation with the
South Florida Ecosystem Restoration Task Force, shall enter into a
five-year agreement, with options for extensions in five-year
increments, with the National Academy of Sciences to convene this
panel.
(4) The Department of the Army, the Department of the Interior, and
the State expect that the National Academy of Sciences will use
established practices for assuring the independence of members and that
the review panel will include members reflecting a balance of the
knowledge, training, and experience suitable to comprehensively review
and assess progress towards achieving natural system restoration goals
of the Plan.
(5) To ensure the independence of the section 601(j) panel, its
sole mission shall be to review the Plan's progress toward achieving
the natural system restoration goals of the Plan and to produce a
biennial report to Congress, the Secretary of the Army, the Secretary
of the Interior, and the Governor that includes an assessment of
ecological indicators and other measures of progress in restoring the
ecology of the natural system, based on the Plan. The Secretary of the
Army, the Secretary of the Interior, the Governor, and the South
Florida Ecosystem Restoration Task Force and its members, shall not
attempt to influence the panel's review or assign this panel any other
tasks, nor request any advice on any other matter, nor shall this panel
accept any other tasks nor provide advice on any other matter, to any
entity, whether Federal, State or local, whether public or private.
(6) Before final establishment of the panel, the Department of the
Army, the Department of the Interior, and the State, in consultation
with the South Florida Ecosystem Restoration Task Force, shall be
afforded the opportunity to review the list of panel members convened
by the National Academy of Sciences.
(7) The agreement shall recognize that the Department of the Army,
the Department of the Interior, and the State retain the right and
ability to establish other independent scientific review panels or
external peer reviews when deemed necessary by those agencies for
conducting specific scientific and technical reviews.
(8) The Department of the Army, the Department of the Interior, and
the State of Florida shall share the panel's costs. The Department of
the Army and the Department of the Interior shall enter into a separate
Memorandum of Agreement that will specify how the Federal agencies will
pay the Federal share of these costs. The State's fifty percent share
shall be accounted for in the design agreement between the Corps of
Engineers and the South Florida Water Management District.
(9) The panel shall produce a biennial report to Congress, the
Secretary of the Army, the Secretary of the Interior, and the Governor,
pursuant to section 601(j) of WRDA 2000, that includes an assessment of
ecological indicators and other measures of progress in restoring the
ecology of the natural system, based on the Plan.
(10) The Corps of Engineers and the South Florida Water Management
District and other non-Federal sponsors shall cooperate with the
independent scientific review panel, including responding to reasonable
requests for information concerning the implementation of the Plan.
(11) The Secretary of the Army, the Secretary of the Interior, and
the Governor shall consult with the South
[[Page 64233]]
Florida Ecosystem Restoration Task Force in their decision to exercise
each five-year option to extend the agreement with the National Academy
of Sciences. Upon expiration of the agreement, the Secretary of the
Army, the Secretary of the Interior, and the Governor shall consult the
South Florida Ecosystem Restoration Task Force in selection of another
body to convene the independent scientific review panel required by
section 601(j) of WRDA 2000.
(b) External peer review. (1) The Department of the Army, the
Department of the Interior, the South Florida Water Management
District, and other Federal, State, and local agencies, the Miccosukee
Tribe of Indians of Florida and the Seminole Tribe of Florida may
initiate an external peer review process to review documents, reports,
procedures, or to address specific scientific or technical questions or
issues relating to their jurisdiction.
(2) In accordance with Sec. 385.12(d), draft Pilot Project
Technical Reports shall be externally peer reviewed.
(3) In accordance with Sec. 385.31(b), draft assessment reports
prepared for the adaptive management program shall be externally peer
reviewed.
Sec. 385.23 Dispute resolution.
(a) Disputes with the non-Federal sponsor concerning a Project
Cooperation Agreement shall be resolved under the specific dispute
resolution procedures of that Project Cooperation Agreement.
(b) Disputes with the non-Federal sponsor concerning design
activities shall be resolved under the specific dispute resolution
procedures of the design agreement.
(c) All other unresolved issues with the non-Federal sponsor and
disputes with the State associated with the implementation of the Plan
shall be resolved according to the terms of the Dispute Resolution
Agreement executed on September 9, 2002 pursuant to section 601(i) of
WRDA 2000.
(d) For disputes with parties not covered by the provisions of
paragraphs (a), (b), or (c) of this section, the Corps of Engineers
shall attempt to resolve the dispute in accordance with applicable
statutory requirements and/or the following procedures:
(1) The parties will attempt to resolve disputes at the lowest
organizational level before seeking to elevate a dispute.
(2) Any disputed matter shall first be elevated to the District
Engineer and the equivalent official of the other agency, or their
designees. The parties may decide to continue to elevate the dispute to
higher levels within each agency.
(3) The parties to a dispute may agree to participate in mediation.
(4) When a dispute is resolved the parties shall memorialize the
resolution in writing.
Sec. 385.24 Project Management Plans.
(a) General requirements. (1) The Corps of Engineers and the non-
Federal sponsor shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, develop a Project
Management Plan prior to initiating activities on a project.
(2) The Project Management Plan shall define the activities, and
where appropriate, the subordinate tasks, as well as the assignment of
responsibility for completing products and activities such as Project
Implementation Reports, Pilot Project Design Reports, plans and
specifications, real estate acquisition, construction contracts and
construction, Comprehensive Plan Modification Reports, and other
activities necessary to support implementation of the Plan.
(3) The Project Management Plan shall include a quality control
plan, as described in Sec. 385.21.
(4) As appropriate, the Project Management Plan shall include
activities to be conducted to meet the requirements of the Fish and
Wildlife Coordination Act, as described in Sec. 385.26(e).
(5) The Project Management Plan shall provide schedule and funding
information for the project.
(6) In accordance with Sec. 385.18, Corps of Engineers and the
non-Federal sponsor shall provide opportunities for the public to
review and comment on the Project Management Plan.
(b) Revisions to Project Management Plans. The Corps of Engineers
and the non-Federal sponsor may, in consultation with the Department of
the Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, revise the Project
Management Plan whenever necessary, including after completion of the
Project Implementation Report, or Plans and Specifications. In
accordance with Sec. 385.18, the Corps of Engineers and the non-
Federal sponsor shall provide opportunities for the public to review
and comment on revisions to the Project Management Plan.
Sec. 385.25 Program Management Plans.
(a) General requirements. (1) The Corps of Engineers and the non-
Federal sponsor shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, develop a Program
Management Plan prior to initiating a program-level activity.
(2) The Program Management Plan shall define the activities, and
where appropriate, the subordinate tasks, as well as the assignment of
responsibility for completing products developed in support to program-
level activities.
(3) In accordance with Sec. 385.18, Corps of Engineers and the
non-Federal sponsor shall provide opportunities for the public to
review and comment on the Program Management Plan.
(b) Revisions to Program Management Plans. The Corps of Engineers
and the non-Federal sponsor may, in consultation with the Department of
the Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, revise the Program
Management Plan whenever necessary to incorporate new or changed
information that affects the scope, schedule, or budget of the
activities described in the Program Management Plan. In accordance with
Sec. 385.18, the Corps of Engineers and the non-Federal sponsor shall
provide opportunities for the public to review and comment on revisions
to the Program Management Plan.
Sec. 385.26 Project Implementation Reports.
(a) General requirements. (1) The Project Implementation Report is
a document that provides information on plan formulation and
evaluation, engineering and design, estimated benefits and costs,
environmental effects, and the additional information and analysis
necessary for the Secretary of the Army to approve the project for
implementation, or for Congress to authorize the project for
implementation. The Project Implementation Report bridges the gap
between the conceptual level of detail contained in the ``Final
Integrated Feasibility Report and Programmatic Environmental Impact
Statement,'' dated April 1, 1999 and the detailed design necessary to
prepare plans and specifications required to proceed to
[[Page 64234]]
construction. Prior to requesting approval or authorization for the
implementation of a project, the Corps of Engineers and the non-Federal
sponsor shall, in consultation with the Department of the Interior, the
Environmental Protection Agency, the Department of Commerce, the
Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida,
the Florida Department of Environmental Protection, and other Federal,
State, and local agencies, complete a Project Implementation Report
addressing the project's justification in accordance with section
601(f)(2) of WRDA 2000, and other factors required by section
601(h)(4)(A) of WRDA 2000. To eliminate duplication with State and
local procedures, the Project Implementation Report shall also address
the factors of relevant State laws, including sections 373.1501 and
373.470 of the Florida Statutes.
(2) Before completion of the draft Project Implementation Report,
the Corps of Engineers and the non-Federal sponsor shall provide the
South Florida Ecosystem Restoration Task Force with information about
the alternative plans developed and evaluated for the Project
Implementation Report.
(3) The Project Implementation Report shall:
(i) Be consistent with the Plan and applicable law, policy, and
regulation, including the Principles and Guidelines of the Water
Resources Council, as modified by section 601(f)(2)(A) of WRDA 2000;
(ii) Be based on the best available science;
(iii) Comply with all applicable Federal, State, and Tribal laws;
(iv) Contain sufficient information for proceeding to final design
of the project, such as: additional plan formulation and evaluation,
environmental and/or economic benefits, engineering and design, costs,
environmental impacts, real estate requirements, and the preparation of
the appropriate National Environmental Policy Act documentation;
(v) Contain the information necessary to determine that the
activity is justified by the environmental benefits derived by the
South Florida ecosystem in accordance with section 601(f)(2)(A) and/or
that the benefits of the project are commensurate with costs, and that
the project is cost-effective;
(vi) Comply, in accordance with section 601(b)(2)(A)(ii) of WRDA
2000, with applicable water quality standards and applicable water
quality permitting requirements;
(vii) Identify, in accordance with Sec. 385.35, the appropriate
quantity, timing, and distribution of water dedicated and managed for
the natural system;
(viii) Identify, in accordance with Sec. 385.35, the amount of
water to be reserved or allocated for the natural system under State
law necessary to implement the provisions in paragraphs (a)(3)(vi) and
(vii) of this section;
(ix) Identify the quantity, timing, and distribution of water made
available for other water-related needs of the region;
(x) Determine, in accordance with Sec. 385.36, if existing legal
sources of water are to be eliminated or transferred;
(xi) Determine, in accordance with Sec. 385.37(b) that
implementation of the selected alternative will not reduce levels of
service for flood protection that:
(A) Were in existence on the date of enactment of section 601 of
WRDA 2000; and
(B) Are in accordance with applicable law; and consider, as
appropriate, in accordance with Sec. 385.37(c), opportunities to
provide additional flood protection;
(xii) Include an assessment of the monetary and non-monetary
benefits and costs, optimization and justification, cost-effectiveness,
and engineering feasibility of the project;
(xiii) Include a discussion of any significant changes in cost or
scope of the project from that presented in the ``Final Integrated
Feasibility Report and Programmatic Environmental Impact Statement,''
dated April 1, 1999;
(xiv) Include an analysis, prepared by RECOVER as described in
paragraph (c) of this section, of the project's contributions towards
achieving the goals and purposes of the Plan, including, as
appropriate, suggestions for improving the performance of the
alternative plans;
(xv) Describe how the project contributes to the achievement of
interim goals established pursuant to Sec. 385.38 and the interim
targets established pursuant to Sec. 385.39;
(xvi) Include, in accordance with Sec. 385.28(c), a draft Project
Operating Manual as an appendix; and
(xvii) Include, as appropriate, information necessary for the non-
Federal sponsor to address the requirements of Chapter 373 of the
Florida Statutes, and other applicable planning and reporting
requirements of Florida law.
(4) The Corps of Engineers and the non-Federal sponsor shall
develop the Project Implementation Report generally in accordance with
the process shown in figure 2 in Appendix A of this part.
(5) The Corps of Engineers and the South Florida Water Management
District shall develop a guidance memorandum in accordance with Sec.
385.5 for approval by the Secretary of the Army, with the concurrence
of the Secretary of the Interior and the Governor, that describes the
major tasks that are generally needed to prepare a Project
Implementation Report and the format and content of a Project
Implementation Report.
(b) Formulation and evaluation. In preparing a Project
Implementation Report, the Corps of Engineers and the non-Federal
sponsor shall formulate and evaluate alternative plans to optimize the
project's contributions towards achieving the goals and purposes of the
Plan, and to develop justified and cost-effective ways to achieve the
benefits of the Plan.
(1) General. The Corps of Engineers and the South Florida Water
Management District shall develop a guidance memorandum in accordance
with Sec. 385.5 for approval by the Secretary of the Army, with the
concurrence of the Secretary of the Interior and the Governor, that
describes the processes to be used to formulate and evaluate
alternative plans and their associated monetary and non-monetary
benefits and costs, determine cost-effectiveness and optimize the
project's contribution towards achieving the goals and purposes of the
Plan, and the basis for justifying and selecting an alternative to be
recommended for implementation. The guidance memorandum shall also
provide a process for evaluating projects that are outside the boundary
of regional computer models or projects whose effects cannot be
captured in regional computer models. Project Implementation Reports
approved by the Secretary of the Army before December 12, 2003 or
before the development of the guidance memorandum may use whatever
method that, in the Secretary of the Army's discretion, is deemed
appropriate and is consistent with applicable law, policy, and
regulations.
(2) Project formulation and evaluation. The guidance memorandum
shall describe the process for formulating and evaluating alternative
plans for their ability to optimize contributions for achieving the
goals and purposes of the Plan. The guidance memorandum shall describe
the process for including each alternative plan with all of the other
components of the Plan and evaluating the total monetary and non-
monetary benefits and costs of the resulting comprehensive plan when
compared to the without CERP
[[Page 64235]]
condition. In formulating alternative plans to be evaluated, the
project as described in the ``Final Integrated Feasibility Report and
Programmatic Environmental Impact Statement,'' dated April 1, 1999
shall be included as one of the alternative plans that is evaluated.
For the selected plan, the guidance memorandum shall also describe the
process for evaluating that plan as the next-added increment of the
Plan.
(3) Identification of selected alternative plan. The guidance
memorandum shall also include a process for identification of a
selected alternative plan, based on the analyses conducted in paragraph
(b)(2) of this section. The alternative plan to be selected should be
the plan that maximizes net benefits, both monetary and non-monetary,
on a system-wide basis, provided that this plan is justified on a next-
added increment basis. Alternative plans that are not justified on a
next-added increment basis shall not be selected. The guidance
memorandum shall describe an iterative process for evaluating and/or
combining alternative options until an alternative is identified that
maximizes net benefits while still providing benefits that justify
costs on a next-added increment basis.
(c) RECOVER performance evaluation of alternative plans. (1) Prior
to the identification of a selected alternative plan, RECOVER shall
evaluate the performance of alternative plans towards achieving the
goals and purposes of the Plan.
(2) RECOVER shall prepare information for the Project Delivery Team
describing the results of the evaluations of alternative plans
developed for the Project Implementation Report towards achieving the
goals and purposes of the Plan, including, as appropriate, suggestions
for improving the performance of the alternative plans.
(d) NEPA documentation for Project Implementation Reports. (1) The
Corps of Engineers and the non-Federal sponsor shall prepare the
appropriate NEPA document to accompany the Project Implementation
Report. The NEPA document shall contain an analysis of the effects of
the alternatives formulated for the Project Implementation Report. The
NEPA document for the Project Implementation Report shall use the
Programmatic Environmental Impact Statement included in the ``Final
Integrated Feasibility Report and Programmatic Environmental Impact
Statement,'' dated April 1, 1999, as appropriate, for the purpose of
tiering as described in Sec. 230.14(c) of this chapter.
(2) The District Engineer shall prepare the Record of Decision for
Project Implementation Reports. Review and signature of the Record of
Decision shall follow the same procedures as for review and approval of
feasibility reports in Sec. 230.14 of this chapter and other
applicable Corps of Engineers regulations.
(e) Fish and Wildlife Coordination Act Requirements. (1) The Corps
of Engineers and the non-Federal sponsor shall coordinate with the U.S.
Fish and Wildlife Service, the National Marine Fisheries Service, the
Florida Fish and Wildlife Conservation Commission, and other
appropriate agencies in the preparation of a Project Implementation
Report, as required by applicable law.
(2) The Project Management Plan shall include a discussion of
activities to be conducted for compliance with the Fish and Wildlife
Coordination Act and other applicable laws.
(3) Consistent with applicable law, policy, and regulations,
coordination shall include preparation of the following documents as
shown in figure 2 in Appendix A of this part:
(i) Planning Aid Letter that describes issues and opportunities
related to the conservation and enhancement of fish and wildlife
resources; and
(ii) Draft and final Fish and Wildlife Coordination Act Reports
that provide the formal views and recommendations of the U.S. Fish and
Wildlife Service or the National Marine Fisheries Service, and the
Florida Fish and Wildlife Conservation Commission on alternative plans.
(f) Project Implementation Report review and approval process. (1)
The Corps of Engineers and the non-Federal sponsor shall provide
opportunities for the public to review and comment on the draft Project
Implementation Report and NEPA document, in accordance with Sec.
385.18 and applicable law and Corps of Engineers policy.
(2) The Project Implementation Report shall contain an appropriate
letter of intent from the non-Federal sponsor indicating concurrence
with the recommendations of the Project Implementation Report.
(3) Upon the completion of the Project Implementation Report and
NEPA document, the District Engineer shall submit the report and NEPA
document to the Division Engineer.
(4) Upon receipt and approval of the Project Implementation Report
the Division Engineer shall issue a public notice announcing completion
of the Project Implementation Report based upon:
(i) The Division Engineer's endorsement of the findings and
recommendations of the District Engineer; and
(ii) The Division Engineer's assessment that the project has been
developed and the report prepared in accordance with current law and
policy. The notice shall indicate that the report has been submitted to
Corps of Engineers Headquarters for review.
(5) Headquarters, U.S. Army Corps of Engineers shall conduct a
review in accordance with applicable policies and regulations of the
Corps of Engineers. Headquarters, U.S. Army Corps of Engineers shall
administer the 30-day state and agency review of the Project
Implementation Report, and as appropriate, file the Environmental
Impact Statement with the Environmental Protection Agency.
(6) After completion of the review and other requirements of law
and policy, the Chief of Engineers shall submit the Project
Implementation Report and the Chief of Engineers' recommendations on
the project to the Assistant Secretary of the Army for Civil Works.
(7) The Assistant Secretary of the Army for Civil Works shall
review all Project Implementation Reports, and shall, prior to either
approving them or submitting the Assistant Secretary's recommendations
to Congress, coordinate the project and proposed recommendations with
the Office of Management and Budget.
(i) For projects authorized by section 601(c) of WRDA 2000, the
Assistant Secretary of the Army for Civil Works shall review and
approve the Project Implementation Report prior to implementation of
the project.
(ii) For projects authorized by section 601(b)(2)(C) of WRDA 2000,
the Assistant Secretary of the Army for Civil Works shall review the
Project Implementation Report prior to submitting the Assistant
Secretary's recommendations to the Committee on Transportation and
Infrastructure of the House of Representatives and the Committee on
Environment and Public Works of the Senate for approval.
(iii) For all other projects, the Assistant Secretary of the Army
for Civil Works shall review the Project Implementation Report prior to
submitting the Assistant Secretary's recommendations regarding
authorization to Congress.
Sec. 385.27 Project Cooperation Agreements.
(a) General. Prior to initiating construction or implementation of
a project, the Corps of Engineers shall execute a Project Cooperation
Agreement with the non-Federal sponsor in accordance with applicable
law.
[[Page 64236]]
(b) Verification of water reservations. The Project Cooperation
Agreement shall include a finding that the South Florida Water
Management District or the Florida Department of Environmental
Protection has executed under State law the reservation or allocation
of water for the natural system as identified in the Project
Implementation Report. Prior to execution of the Project Cooperation
Agreement, the District Engineer shall verify in writing that the South
Florida Water Management District or the Florida Department of
Environmental Protection has executed under State law the reservation
or allocation of water for the natural system as identified in the
Project Implementation Report. The District Engineer's verification
shall provide the basis for the finding in the Project Cooperation
Agreement and be made available to the public.
(c) Changes to water reservations. Reservations or allocations of
water are a State responsibility. Any change to the reservation or
allocation of water for the natural system made under State law shall
require an amendment to the Project Cooperation Agreement.
(1) The District Engineer shall, in consultation with the South
Florida Water Management District, the Florida Department of
Environmental Protection, the Department of the Interior, the
Environmental Protection Agency, the Department of Commerce, the
Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida,
and other Federal, State, and local agencies, verify in writing that
the revised reservation or allocation continues to provide for an
appropriate quantity, timing, and distribution of water dedicated and
managed for the natural system after considering any changed
circumstances or new information since completion of the Project
Implementation Report. In accordance with applicable State law, the
non-Federal sponsor shall provide opportunities for the public to
review and comment on any proposed changes in the water reservation
made by the State.
(2) The Secretary of the Army shall notify the appropriate
committees of Congress whenever a change to the reservation or
allocation of water for the natural system executed under State law as
described in the Project Implementation Report has been made. Such
notification shall include the Secretary's and the State's reasons for
determining that the revised reservation or allocation continues to
provide for an appropriate quantity, timing, and distribution of water
dedicated and managed for the natural system after considering any
changed circumstances or new information since completion of the
Project Implementation Report. The Secretary of the Army's notification
to the appropriate committees of Congress shall be made available to
the public.
(d) Savings clause provisions. The Project Cooperation Agreement
shall ensure that the Corps of Engineers and the non-Federal sponsor
not:
(1) Eliminate or transfer existing legal sources of water until a
new source of comparable quantity and quality as that available on the
date of enactment of WRDA 2000 is available to replace the water to be
lost as a result of implementation of the Plan; and
(2) Reduce levels of service for flood protection that are:
(i) In existence on the date of enactment of WRDA 2000; and
(ii) In accordance with applicable law.
Sec. 385.28 Operating Manuals.
(a) General provisions. (1) The Corps of Engineers and the non-
Federal sponsor shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, develop Operating Manuals
to ensure that the goals and purposes of the Plan are achieved.
(2) Operating Manuals shall consist of a System Operating Manual
and Project Operating Manuals. In general, the System Operating Manual
provides a system-wide operating plan for the operation of the projects
of the Plan and other C&SF Project features and the Project Operating
Manuals provide the details necessary for integrating the operation of
the individual projects with the system operation described in the
System Operating Manual.
(3) In accordance with Sec. 385.18, the public shall have the
opportunity to review and comment on draft Operating Manuals.
(4) The Division Engineer and the non-Federal sponsor shall approve
completed Operating Manuals.
(5) The Corps of Engineers and the South Florida Water Management
District shall develop a guidance memorandum in accordance with Sec.
385.5 for approval by the Secretary of the Army, with the concurrence
of the Secretary of the Interior and the Governor, that describes the
content of Operating Manuals and the tasks necessary to develop
Operating Manuals.
(6) Operating Manuals shall:
(i) Be consistent with the goals and purposes of the Plan;
(ii) Comply with NEPA, in accordance with Sec. 385.14.
(iii) Describe regulation schedules, water control, and operating
criteria for a project, group of projects, or the entire system;
(iv) Make provisions for the natural fluctuation of water made
available in any given year and fluctuations necessary for the natural
system as described in the Plan;
(v) Be consistent with applicable water quality standards and
applicable water quality permitting requirements;
(vi) Be consistent with the reservation or allocation of water for
the natural system and the savings clause provisions described in the
Project Implementation Report and the Project Cooperation Agreement and
the provisions of Sec. 385.35(b), Sec. 385.36, and Sec. 385.37 and
reflect the operational criteria used in the identification of the
appropriate quantity, timing, and distribution of water dedicated and
managed for the natural system;
(vii) Include a drought contingency plan as required by Sec.
222.5(i)(5) of this chapter and Engineer Regulation ER 1110-2-1941
``Drought Contingency Plans'' that is consistent with the Water Rights
Compact Among the Seminole Tribe of Florida, the State of Florida, and
the South Florida Water Management District and Florida Administrative
Code Section 40E-21 (Water Shortage Plan) and Florida Administrative
Code Section 40E-22 (Regional Water Shortage Plan); and
(viii) Include provisions authorizing temporary short-term
deviations from the Operating Manual for emergencies and unplanned
circumstances, as described in applicable Corps of Engineers
regulations, including Sec. 222.5(f)(4) and Sec. 222.5(i)(5) of this
chapter, and Engineer Regulation ER 1110-2-8156 ``Preparation of Water
Control Manuals.'' However, deviations shall be minimized by including
planning for flooding events caused by rainfall and hurricane events,
as well as by including a drought contingency plan.
(A) Emergency deviations. Examples of some emergencies that can be
expected to occur at a project are: drowning and other accidents,
failure of the operation facilities, chemical spills, treatment plant
failures and other temporary pollution problems. Water control actions
necessary to abate the problem are taken immediately unless such action
would create equal or worse conditions.
(B) Unplanned circumstances. There are unplanned circumstances that
create
[[Page 64237]]
a temporary need for minor deviations from the Operating Manual,
although they are not considered emergencies. Deviations are sometimes
necessary to carry out maintenance and inspection of facilities.
Requests for deviations for unplanned circumstances generally involve
time periods ranging from a few hours to a few days. Approval of these
changes shall be obtained from the Division Engineer.
(7) Except as provided in this part, operating manuals generally
shall follow the procedures for water control plans in Sec. 222.5 of
this chapter and applicable Corps of Engineers regulations for
preparation of water control manuals and regulation schedules,
including Engineer Regulation ER 1110-2-8156.
(b) System Operating Manual. (1) Not later than December 31, 2005,
the Corps of Engineers and the South Florida Water Management District
shall, in consultation with the Department of the Interior, the
Environmental Protection Agency, the Department of Commerce, the
Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida,
the Florida Department of Environmental Protection, and other Federal,
State, and local agencies, develop a System Operating Manual that
provides a system-wide operating plan for the operation of implemented
projects of the Plan and other Central and Southern Florida Project
features to ensure that the goals and purposes of the Plan are
achieved.
(2) The System Operating Manual shall initially be based on the
existing completed Central and Southern Florida Project features and
shall be developed by the Corps of Engineers as provided in Sec.
222.5(g) of this chapter and by the South Florida Water Management
District as its laws and regulations require. Existing water control
plans, regulation schedules, and Master Water Control Plans for the
Central and Southern Florida Project shall remain in effect until
approval of the System Operating Manual.
(3) The System Operating Manual shall be revised whenever the Corps
of Engineers and the South Florida Water Management District, in
consultation with the Department of the Interior, the Environmental
Protection Agency, the Department of Commerce, the Seminole Tribe of
Florida, the Miccosukee Tribe of Indians of Florida, the Florida
Department of Environmental Protection, and other Federal, State, and
local agencies, believe it is necessary to ensure that the goals and
purposes of the Plan are achieved.
(4) Except as provided in this part, the System Operating Manual
shall follow the procedures for preparation of water control manuals,
regulation schedules and Master Water Control Manuals in Sec. 222.5 of
this chapter and applicable Corps of Engineers regulations.
(5) The Corps of Engineers and the South Florida Water Management
District shall provide notice and opportunity for public comment for
any significant modification to the System Operating Manual.
(c) Project Operating Manuals. (1) The Corps of Engineers and the
non-Federal sponsor shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, develop a Project
Operating Manual for each project of the Plan that is implemented.
(2) Project Operating Manuals shall be considered supplements to
the System Operating Manual, and present aspects of the projects not
common to the system as a whole.
(3) Each Project Implementation Report shall, as appropriate,
include a draft Project Operating Manual as an appendix to the Project
Implementation Report.
(4) As appropriate, the draft Project Operating Manual shall be
revised for the project construction phase and the operational
monitoring and testing phase after completion of project construction.
(5) The final Project Operating Manual shall be completed as soon
as practicable after completion of the operational testing and
monitoring phase of the project. The completed project shall continue
to be operated in accordance with the approved draft Project Operating
Manual until the final Project Operating Manual is approved.
(6) The Corps of Engineers and the non-Federal sponsor shall
provide notice and opportunity for public comment for any significant
modification to the Project Operating Manual.
Sec. 385.29 Other project documents.
(a) As appropriate, the Corps of Engineers and the non-Federal
sponsor may prepare design documents to provide additional design
information needed for projects. Such documents shall be approved in
accordance with applicable policies of the Corps of Engineers and the
non-Federal sponsor.
(b) The Corps of Engineers and the non-Federal sponsor shall
prepare plans and specifications necessary for construction of
projects. Such documents shall be approved in accordance with
applicable policies of the Corps of Engineers and the non-Federal
sponsor.
(c) The Corps of Engineers and the non-Federal sponsor may prepare
other documents as appropriate during the real estate acquisition and
construction phases for projects. Such documents shall be approved in
accordance with applicable policies of the Corps of Engineers and the
non-Federal sponsor.
Subpart D--Incorporating New Information Into the Plan
Sec. 385.30 Master Implementation Sequencing Plan.
(a) Not later than December 13, 2004 the Corps of Engineers and the
South Florida Water Management District shall, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Seminole Tribe of Florida, the Miccosukee
Tribe of Indians of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, develop a
Master Implementation Sequencing Plan that includes the sequencing and
scheduling for implementation of all of the projects of the Plan,
including pilot projects and operational elements, based on the best
scientific, technical, funding, contracting, and other information
available. The Corps of Engineers and the South Florida Water
Management District shall also consult with the South Florida Ecosystem
Restoration Task Force in preparing the Master Implementation
Sequencing Plan.
(1) Projects shall be sequenced and scheduled to maximize the
achievement of the goals and purposes of the Plan at the earliest
possible time and in the most cost-effective way, consistent with the
requirement that each project be justified on a next-added increment
basis, including the achievement of the interim goals established
pursuant to Sec. 385.38 and the interim targets established pursuant
Sec. 385.39, consistent with Sec. 385.36 and Sec. 385.37(b), and to
the extent practical given funding, engineering, and other constraints.
The sequencing and scheduling of projects shall be based on considering
factors, including, but not limited to:
(i) Technical dependencies and constraints;
(ii) Benefits to be provided by the project;
(iii) Availability of lands required for the project; and
(iv) Avoiding elimination or transfers of existing legal sources of
water until
[[Page 64238]]
an alternate source of comparable quantity and quality is available, in
accordance with Sec. 385.36.
(2) The Master Implementation Sequencing Plan shall include
appropriate discussion of the logic, constraints, and other parameters
used in developing the sequencing and scheduling of projects.
(3) In accordance with Sec. 385.18, the Corps of Engineers and the
South Florida Water Management District shall provide opportunities for
the public to review and comment on the Master Implementation
Sequencing Plan.
(b) Whenever necessary to ensure that the goals and purposes of the
Plan are achieved, but at least every five years, the Corps of
Engineers and the South Florida Water Management District shall, in
consultation with the Department of the Interior, the Environmental
Protection Agency, the Department of Commerce, the Seminole Tribe of
Florida, the Miccosukee Tribe of Indians of Florida, the Florida
Department of Environmental Protection, and other Federal, State, and
local agencies, review the Master Implementation Sequencing Plan.
(1) The Master Implementation Sequencing Plan may be revised as
appropriate, consistent with the goals and purposes of the Plan, and
consistent with Sec. 385.36 and Sec. 385.37(b), to incorporate new
information including, but not limited to:
(i) Updated schedules from Project Management Plans;
(ii) Information obtained from pilot projects;
(iii) Updated funding information;
(iv) Approved revisions to the Plan;
(v) Congressional or other authorization or direction;
(vi) Information resulting from the adaptive management program,
including new information on costs and benefits; or
(vii) Information regarding progress towards achieving the interim
goals established pursuant to Sec. 385.38 and the interim targets
established pursuant to Sec. 385.39.
(2) Proposed revisions to the Master Implementation Sequencing Plan
shall be analyzed by RECOVER for effects on achieving the goals and
purposes of the Plan and the interim goals and targets.
(3) The revised Master Implementation Sequencing Plan shall include
information about the reasons for the changes to the sequencing and
scheduling of individual projects.
(4) In accordance with Sec. 385.18, the Corps of Engineers and the
South Florida Water Management District shall provide opportunities for
the public to review and comment on revisions to the Master
Implementation Sequencing Plan.
Sec. 385.31 Adaptive management program.
(a) General. The Corps of Engineers and the South Florida Water
Management District shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, establish an adaptive
management program to assess responses of the South Florida ecosystem
to implementation of the Plan; to determine whether or not these
responses match expectations, including the achievement of the expected
performance level of the Plan, the interim goals established pursuant
to Sec. 385.38, and the interim targets established pursuant Sec.
385.39; to determine if the Plan, system or project operations, or the
sequence and schedule of projects should be modified to achieve the
goals and purposes of the Plan, or to increase net benefits, or to
improve cost effectiveness; and to seek continuous improvement of the
Plan based upon new information resulting from changed or unforeseen
circumstances, new scientific and technical information, new or updated
modeling; information developed through the assessment principles
contained in the Plan; and future authorized changes to the Plan
integrated into the implementation of the Plan. Endorsement of the Plan
as a restoration framework is not intended as an artificial constraint
on innovation in its implementation.
(b) Assessment activities. (1) RECOVER shall develop an assessment
program to assess responses of the system to implementation of the
Plan. The Corps of Engineers and the South Florida Water Management
District shall develop a guidance memorandum in accordance with Sec.
385.5 for approval by the Secretary of the Army, with the concurrence
of the Secretary of the Interior and the Governor, that describes the
processes to be used to conduct these assessments.
(2) RECOVER shall develop a monitoring program that is designed to
measure status and trends towards achieving the goals and purposes of
the Plan throughout the South Florida ecosystem.
(3) RECOVER shall conduct monitoring activities and use the
information collected and analyzed through the monitoring program as a
basis for conducting assessment tasks, which may include, but are not
limited to, the following:
(i) Determining if measured responses are desirable and are
achieving the interim goals and the interim targets or the expected
performance level of the Plan;
(ii) Evaluating if corrective actions to improve performance or
improve cost-effectiveness should be considered; and
(iii) Preparing reports on the monitoring program.
(4) Whenever it is deemed necessary, but at least every five years,
RECOVER shall prepare a technical report that presents an assessment of
whether the goals and purposes of the Plan are being achieved,
including whether the interim goals and interim targets are being
achieved or are likely to be achieved. The technical report shall be
provided to the Corps of Engineers and the South Florida Water
Management District for use in preparing the assessment report. The
technical report prepared by RECOVER shall also be made available to
the public.
(i) The Corps of Engineers and the South Florida Water Management
District shall consult with the Department of the Interior, the
Environmental Protection Agency, the Department of Commerce, the
Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida,
the Florida Department of Environmental Protection, and other Federal,
State, and local agencies in the development of the assessment report.
The Corps of Engineers and the South Florida Water Management District
shall also consult with the South Florida Ecosystem Restoration Task
Force in developing the assessment report.
(ii) In accordance with Sec. 385.22(b), the draft assessment
report shall be externally peer reviewed.
(iii) In accordance with Sec. 385.18, Corps of Engineers and the
South Florida Water Management District shall provide opportunities for
the public to review and comment on the draft assessment report.
(iv) The Corps of Engineers and the South Florida Water Management
District shall transmit the final assessment report to the Secretary of
the Army, the Secretary of the Interior, and the Governor.
(v) The Secretary of the Army shall make the final assessment
report available to the public.
(c) Periodic CERP updates. Not later than June 14, 2004 and
whenever necessary to ensure that the goals and purposes of the Plan
are achieved, but not any less often than every five years, the Corps
of Engineers and the South
[[Page 64239]]
Florida Water Management District shall, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Seminole Tribe of Florida, the Miccosukee
Tribe of Indians of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, conduct an
evaluation of the Plan using new or updated modeling that includes the
latest scientific, technical, and planning information. As part of the
evaluation of the Plan, the Corps of Engineers and the South Florida
Water Management District shall determine the total quantity of water
that is expected to be generated by implementation of the Plan,
including the quantity expected to be generated for the natural system
to attain restoration goals as well as the quantity expected to be
generated for use in the human environment. The Corps of Engineers and
the South Florida Water Management District shall also consult with the
South Florida Ecosystem Restoration Task Force in conducting the
evaluation of the Plan. As appropriate, the results of the evaluation
of the Plan may be used to initiate management actions in accordance
with paragraph (d) of this section that are necessary to seek
continuous improvement of the Plan based upon new information resulting
from changed or unforeseen circumstances, new scientific and technical
information, new or updated modeling; information developed through the
assessment principles contained in the Plan; and future authorized
changes to the Plan integrated into the implementation of the Plan. In
addition, and as appropriate, the results of the evaluation of the Plan
may be used to consider changes to the interim goals in accordance with
Sec. 385.38 and changes to the interim targets in accordance with
Sec. 385.39.
(d) Management actions. (1) In seeking continuous improvement of
the Plan based upon new information resulting from changed or
unforeseen circumstances, new scientific and technical information, new
or updated modeling; information developed through the assessment
principles contained in the Plan; and future authorized changes to the
Plan integrated into the implementation of the Plan, the Corps of
Engineers and the South Florida Water Management District and other
non-Federal sponsors shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, use the assessment report
prepared in accordance with paragraph (b) of this section, information
resulting from independent scientific review and external peer review
in accordance with Sec. 385.22, or other appropriate information
including progress towards achievement of the interim goals established
pursuant to Sec. 385.38 and the interim targets established pursuant
to Sec. 385.39 to determine if the activities described in paragraph
(d)(2) of this section should be undertaken to ensure that the goals
and purposes of the Plan are achieved. The Corps of Engineers and the
South Florida Water Management District shall, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Seminole Tribe of Florida, the Miccosukee
Tribe of Indians of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, consider the
following actions:
(i) Modifying current operations of the Plan;
(ii) Modifying the design or operational plan for a project of the
Plan not yet implemented;
(iii) Modifying the sequence or schedule for implementation of the
Plan;
(iv) Adding new components to the Plan or deleting components not
yet implemented;
(v) Removing or modifying a component of the Plan already in place;
or
(vi) A combination of these.
(2) Such actions should be implemented through revisions to
Operating Manuals in accordance with Sec. 385.28, revisions to the
Master Implementation Sequencing Plan in accordance with Sec. 385.30,
a Comprehensive Plan Modification Report in accordance with Sec.
385.32, or other appropriate mechanisms.
Sec. 385.32 Comprehensive Plan Modification Report
Whenever the Corps of Engineers and the South Florida Water
Management District, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, determine that changes to
the Plan are necessary to ensure that the goals and purposes of the
Plan are achieved or that they are achieved cost-effectively, or to
ensure that each project of the Plan is justified on a next-added
increment basis, the Corps of Engineers and the South Florida Water
Management District shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, prepare a Comprehensive
Plan Modification Report using a process that is consistent with the
provisions of Sec. 385.10, Sec. 385.14, Sec. 385.18, and Sec.
385.19. The Corps of Engineers and the South Florida Water Management
District shall also consult with the South Florida Ecosystem
Restoration Task Force in preparing the Comprehensive Plan Modification
Report.
(a) General requirements. The Comprehensive Plan Modification
Report shall:
(1) Be initiated at the discretion of the Corps of Engineers and
the South Florida Water Management District in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Seminole Tribe of Florida, the Miccosukee
Tribe of Indians of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, after
consideration of the assessment report prepared in accordance with
Sec. 385.31(b), requests from the Department of the Interior or the
State, or other appropriate information;
(2) Comply with all applicable Federal and State laws, including
the National Environmental Policy Act, the Endangered Species Act, the
Fish and Wildlife Coordination Act, the National Historic Preservation
Act, the Clean Water Act, the Safe Drinking Water Act, the Clean Air
Act, the Coastal Zone Management Act, the Marine Mammal Protection Act,
and any other applicable law;
(3) Contain information such as: Plan formulation and evaluation,
engineering and design, estimated benefits and costs, and environmental
effects,;
(4) Include appropriate analyses of alternatives evaluated by
RECOVER;
(5) Include updated water budget information for the Plan,
including the total quantity of water that is expected to be generated
by implementation of the Plan, and the quantity expected to be
generated for the natural system to attain restoration goals as well as
the
[[Page 64240]]
quantity expected to be generated for use in the human environment;
(6) Contain appropriate NEPA documentation to supplement the
Programmatic Environmental Impact Statement included in the ``Final
Integrated Feasibility Report and Programmatic Environmental Impact
Statement,'' dated April 1, 1999; and
(7) Include coordination with the U.S. Fish and Wildlife Service,
the National Marine Fisheries Service, the Florida Fish and Wildlife
Coordination Commission, and other appropriate agencies in the
preparation of the Comprehensive Plan Modification Report, as required
by applicable law.
(b) Review and approval of Comprehensive Plan Modification Report.
(1) The Corps of Engineers and the South Florida Water Management
District shall provide opportunities for the public to review and
comment on the draft Comprehensive Plan Modification Report and NEPA
document, in accordance with Sec. 385.18 and applicable law and Corps
of Engineers policy.
(2) The Comprehensive Plan Modification Report shall contain an
appropriate letter of intent from the South Florida Water Management
District indicating concurrence with the recommendations of the
Comprehensive Plan Modification Report.
(3) Upon the completion of the Comprehensive Plan Modification
Report and NEPA document, the District Engineer shall submit the report
and NEPA document to the Division Engineer.
(4) Upon receipt and approval of the Comprehensive Plan
Modification Report, the Division Engineer shall issue a public notice
announcing completion of the Comprehensive Plan Modification Report
based upon:
(i) The Division Engineer's endorsement of the findings and
recommendations of the District Engineer; and
(ii) The Division Engineer's assessment that the report has been
prepared in accordance with current law and policy. The notice shall
indicate that the report has been submitted to Corps of Engineers
Headquarters for review.
(5) Headquarters, U.S. Army Corps of Engineers shall conduct a
review in accordance with applicable policies and regulations of the
Corps of Engineers. Headquarters, U.S. Army Corps of Engineers shall
administer the 30-day state and agency review of the Comprehensive Plan
Modification Report, and, as appropriate, file the Environmental Impact
Statement with the Environmental Protection Agency.
(6) After completion of the policy review and other requirements of
law and policy, the Chief of Engineers shall submit the Comprehensive
Plan Modification Report and the Chief of Engineers' recommendations to
the Assistant Secretary of the Army for Civil Works.
(7) The Assistant Secretary of the Army for Civil Works shall
review the Comprehensive Plan Modification Report and shall, prior to
submitting the Assistant Secretary's recommendations to Congress,
coordinate the proposed recommendations with the Office of Management
and Budget.
(c) Minor changes to the Plan. The Plan requires a process for
adaptive management and incorporation of new information. As a result
of this process, minor adjustments in the Plan may be made through
Project Implementation Reports. It is not the intent of this section to
require a continual cycle of report writing for minor changes. Instead,
the intent of this section is to develop a Comprehensive Plan
Modification Report for changes to the Plan that would require a
supplement to the programmatic Environmental Impact Statement. The
Corps of Engineers and the South Florida Water Management District may,
in their discretion, elect to prepare a Comprehensive Plan Modification
Report for other changes.
Sec. 385.33 Revisions to models and analytical tools.
(a) In carrying out their responsibilities for implementing the
Plan, the Corps of Engineers, the South Florida Water Management
District, and other non-Federal sponsors shall rely on the best
available science including models and other analytical tools for
conducting analyses for the planning, design, construction, operation,
and assessment of projects. The selection of models and analytical
tools shall be done in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole
Tribe of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies.
(b) The Corps of Engineers, the South Florida Water Management
District, and other non-Federal sponsors may, in consultation with the
Department of the Interior, the Miccosukee Tribe of Indians of Florida,
the Seminole Tribe of Florida, the Environmental Protection Agency, the
Department of Commerce, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, periodically
revise models and analytical tools or develop new models and analytical
tools as needed. As appropriate, RECOVER shall review the adequacy of
system-wide simulation models and analytical tools used in the
evaluation and assessment of projects, and shall propose improvements
in system-wide models and analytical tools required for the evaluation
and assessment tasks.
(c) The Corps of Engineers and the South Florida Water Management
District shall determine on a case-by-case basis what documentation is
appropriate for revisions to models and analytic tools, depending on
the significance of the changes and their impacts to the Plan. Such
changes may be treated as Minor Changes to the Plan, in accordance with
Sec. 385.32(c) where appropriate.
Sec. 385.34 Changes to the Plan.
(a) The Plan shall be updated to incorporate approved changes to
the Plan resulting from:
(1) Approval by the Secretary of the Army of a project to be
implemented pursuant to Sec. 385.13;
(2) Authorization of projects by Congress;
(3) Comprehensive Plan Modification Reports approved by Congress;
or
(4) Other changes authorized by Congress.
(b) The Corps of Engineers and the South Florida Water Management
District shall annually prepare a document for dissemination to the
public that describes:
(1) The components of the Plan, including any approved changes to
the Plan;
(2) The estimated cost of the Plan, including any approved changes
to the Plan;
(3) A water budget for the Plan; and
(4) The water that has been reserved or allocated for the natural
system under State law for the Plan.
(c) The Corps of Engineers shall annually provide to the Office of
Management and Budget an updated estimate of total cost of the Plan,
the costs of individual project components, and an explanation of any
changes in these estimates from the initial estimates contained in the
``Final Integrated Feasibility Report and Programmatic Environmental
Impact Statement,'' dated April 1, 1999.
[[Page 64241]]
Subpart E--Ensuring Protection of the Natural System and Water
Availability Consistent With the Goals and Purpose of the Plan
Sec. 385.35 Achievement of the benefits of the Plan.
(a) Pre-CERP baseline water availability and quality. (1) Not later
than June 14, 2004 the Corps of Engineers and the South Florida Water
Management District shall, in consultation with the Department of the
Interior, the Miccosukee Tribe of Indians of Florida, the Seminole
Tribe of Florida, the Environmental Protection Agency, the Department
of Commerce, the Florida Department of Environmental Protection, and
other Federal, State, and local agencies, develop for approval by the
Secretary of the Army, the pre-CERP baseline to be used to aid the
Corps of Engineers and the South Florida Water Management District in
determining if existing legal sources of water will be eliminated or
transferred as a result of project implementation as described in Sec.
385.36 and memorialize the pre-CERP baseline in an appropriate
document. The Corps of Engineers and the South Florida Water Management
District shall consult with the South Florida Ecosystem Restoration
Task Force in the development of the pre-CERP baseline.
(i) The pre-CERP baseline may express the quantity, timing, and
distribution of water in stage duration curves; exceedance frequency
curves; quantities available in average, wet, and dry years; or any
other method which is based on the best available science.
(ii) The pre-CERP baseline shall include appropriate documentation
that includes a description of the assumptions used to develop the pre-
CERP baseline.
(iii) In addition to the development of the pre-CERP baseline, the
Corps of Engineers and the South Florida Water Management District
shall conduct other analyses that they deem necessary to determine if
an existing legal source of water has been eliminated or transferred or
if a new source of water is of comparable quality to that which has
been eliminated or transferred in accordance with Sec. 385.36.
(2) In accordance with Sec. 385.18, the Corps of Engineers and the
South Florida Water Management District shall provide opportunities for
the public to review and comment on the pre-CERP baseline.
(3) The pre-CERP baseline shall be developed with the concurrence
of the Secretary of the Interior and the Governor. Within 180 days of
being provided the pre-CERP baseline, or such shorter period that the
Secretary of the Interior and the Governor may agree to, the Secretary
of the Interior and the Governor shall provide the Secretary of the
Army with a written statement of concurrence or non-concurrence with
the pre-CERP baseline. A failure to provide a written statement of
concurrence or non-concurrence within such time frame shall be deemed
as meeting the concurrency process of this section. A copy of any
concurrency or non-concurrency statements shall be made a part of the
administrative record and referenced in the final determination of the
pre-CERP baseline. Any non-concurrency statement shall specifically
detail the reason or reasons for the non-concurrence.
(4) Nothing in this paragraph is intended to, or shall it be
interpreted to, reserve or allocate water or to prescribe the process
for reserving or allocating water or for water management under Florida
law. Nothing in this section is intended to, nor shall it be
interpreted to, prescribe any process of Florida law.
(b) Identification of water made available and water to be reserved
or allocated for the natural system. (1) Initial modeling showed that
most of the water generated by the Plan would go to the natural system
in order to attain restoration goals, and the remainder of the water
would go for use in the human environment. The Corps of Engineers, the
South Florida Water Management District, and other non-Federal sponsors
shall ensure that Project Implementation Reports identify the
appropriate quantity, timing, and distribution of water to be dedicated
and managed for the natural system that is necessary to meet the
restoration goals of the Plan. In accordance with the ``Comprehensive
Everglades Restoration Plan Assurance of Project Benefits Agreement,''
dated January 9, 2002 pursuant to section 601(h)(2) of WRDA 2000, the
South Florida Water Management District or the Florida Department of
Environmental Protection shall make sufficient reservations of water
for the natural system under State law in accordance with the Project
Implementation Report for that project and consistent with the Plan
before water made available by a project is permitted for a consumptive
use or otherwise made unavailable. In accordance with Sec. 385.31(c),
the Corps of Engineers and the South Florida Water Management District
shall, in consultation with the Department of the Interior, the
Environmental Protection Agency, the Department of Commerce, the
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida,
the Florida Department of Environmental Protection, and other Federal,
State, and local agencies, determine the total quantity of water that
is expected to be generated by implementation of the Plan, including
the quantity expected to be generated for the natural system to attain
restoration goals as well as the quantity expected to be generated for
use in the human environment, and shall periodically update that
estimate, as appropriate, based on new information resulting from
changed or unforeseen circumstances, new scientific or technical
information, new or updated models, or information developed through
the adaptive assessment principles contained in the Plan, or future
authorized changes to the Plan integrated into the implementation of
the Plan.
(2) Each Project Implementation Report shall take into account the
availability of pre-CERP baseline water and previously reserved water
as well as the estimated total quantity of water that is necessary for
restoration for the natural system and the quantity of water
anticipated to be made available from future projects in identifying
the appropriate quantity, timing, and distribution of water dedicated
and managed for the natural system, determining whether improvements in
water quality are necessary to ensure that water delivered to the
natural system meets applicable water quality standards; and
identifying the amount of water for the natural system necessary to
implement, under State law, the provisions of section
601(h)(4)(A)(iii)(V) of WRDA 2000.
(3) Section 601(h)(3)(C)(i)(I) of WRDA 2000 requires the
regulations of this part to establish a process for development of
Project Implementation Reports, Project Cooperation Agreements, and
Operating Manuals that ensure that the goals and objectives of the Plan
are achieved. Section 601(h)(4)(A)(iii)(IV) of WRDA 2000 provides that
Project Implementation Reports shall identify the appropriate quantity,
timing, and distribution of water dedicated and managed for the natural
system. Section 601(h)(4)(A)(iii)(V) of WRDA 2000 provides that Project
Implementation Reports shall identify the amount of water to be
reserved or allocated for the natural system necessary to implement,
under State law, the provisions of section 601(h)(4)(A)(iii)(IV) and
(VI) of WRDA 2000. To implement these provisions and Sec. 385.5, the
Corps of Engineers and the South Florida Water Management District
shall develop a guidance memorandum in accordance with Sec. 385.5 for
approval by the Secretary of the Army, with the
[[Page 64242]]
concurrence of the Secretary of the Interior and the Governor. The
guidance memorandum shall provide a process to be used in the
preparation of Project Implementation Reports for identifying the
appropriate quantity, timing, and distribution of water dedicated and
managed for the natural system; determining the quantity, timing and
distribution of water made available for other water-related needs of
the region; determining whether improvements in water quality are
necessary to ensure that water delivered by the Plan meets applicable
water quality standards; and identifying the amount of water for the
natural system necessary to implement, under State law, the provisions
of section 601(h)(4)(A)(iii) of WRDA 2000.
(i) The guidance memorandum shall generally be based on using a
system-wide analysis of the water made available and may express the
quantity, timing and distribution of water in stage duration curves;
exceedance frequency curves; quantities available in average, wet, and
dry years; or any other method which is based on the best available
science. The guidance memorandum shall also provide for projects that
are hydrologically separate from the rest of the system. The guidance
memorandum also shall address procedures for determining whether
improvements in water quality are necessary to ensure that water
delivered to the natural system meets applicable water quality
standards. These procedures shall ensure that any features to improve
water quality are implemented in a manner consistent with the cost
sharing provisions of WRDA 1996 and WRDA 2000.
(ii) The guidance memorandum shall generally take into account the
natural fluctuation of water made available in any given year based on
an appropriate period of record; the objective of restoration of the
natural system; the need for protection of existing uses transferred to
new sources; contingencies for drought protection; the need to identify
the additional quantity, timing, and distribution of water made
available by a new project component while maintaining a system-wide
perspective on the amount of water made available by the Plan; and the
need to determine whether improvements in water quality are necessary
to ensure that water delivered by the Plan meets applicable water
quality standards.
(iii) Project Implementation Reports approved before December 12,
2003 or before the development of the guidance memorandum may use
whatever method that the Corps of Engineers and the non-Federal sponsor
deem is reasonable and consistent with the provisions of section 601 of
WRDA 2000.
(iv) Nothing in this paragraph is intended to, or shall it be
interpreted to, reserve or allocate water or to prescribe the process
for reserving or allocating water or for water management under Florida
law. Nothing in this section is intended to, nor shall it be
interpreted to, prescribe any process of Florida law.
(c) Procedures in event that the project does not perform as
expected. The Project Implementation Report shall include a plan for
operations of the project in the event that the project fails to
provide the quantity, timing, or distribution of water described in the
Project Implementation Report. Such plan shall take into account the
specific authorized purposes of the project and the goals and purposes
of the Plan and shall also provide for undertaking management actions
in accordance with Sec. 385.31(d).
Sec. 385.36 Elimination or transfer of existing legal sources of
water.
(a) Pursuant to the provisions of section 601(h)(5)(A) of WRDA
2000, Project Implementation Reports shall include analyses to
determine if existing legal sources of water are to be eliminated or
transferred as a result of project implementation. If implementation of
the project shall cause an elimination or transfer of existing legal
sources of water, then the Project Implementation Report shall include
an implementation plan that ensures that such elimination or transfer
shall not occur until a new source of water of comparable quantity and
quality is available to replace the water to be lost as a result of
implementation of the Plan. The Corps of Engineers and the non-Federal
sponsor shall determine if implementation of the project will cause an
elimination or transfer of existing legal sources of water by comparing
the availability of water with the recommended project with the pre-
CERP baseline developed in accordance with Sec. 385.35(a), by using
the water quality and other analyses developed in Sec.
385.35(a)(1)(iii), and by using other appropriate information.
(b) The Corps of Engineers and the South Florida Water Management
District shall develop a guidance memorandum in accordance with Sec.
385.5 for approval by the Secretary of the Army, with the concurrence
of the Secretary of the Interior and the Governor, that describes the
process for determining if existing legal sources of water are to be
eliminated or transferred and for determining how and when a new source
of water of comparable quantity and quality as that available on the
date of enactment of WRDA 2000 is available to replace the water to be
lost as a result of implementation of the Plan. The guidance memorandum
shall also describe the process for comparing the recommended project
with the pre-CERP baseline to determine if existing legal sources of
water are to be transferred or eliminated as a result of project
implementation. The guidance memorandum shall include a definition for
existing legal sources of water for the purposes of determining if
existing legal sources of water are to be eliminated or transferred.
Existing legal sources of water shall include those for:
(1) An agricultural or urban water supply;
(2) Allocation or entitlement to the Seminole Indian Tribe of
Florida under section 7 of the Seminole Indian Land Claims Settlement
Act of 1987 (25 U.S.C. 1772e);
(3) The Miccosukee Tribe of Indians of Florida;
(4) Water supply for Everglades National Park; and
(5) Water supply for fish and wildlife.
(c) Until guidance is issued, issues involving existing legal
sources of water should be resolved on a case-by-case basis considering
all factors that can be identified as relevant to decisions under the
savings clause.
Sec. 385.37 Flood protection.
(a) General. In accordance with section 601 of WRDA 2000, flood
protection, consistent with restoration, preservation, and protection
of the natural system, is a purpose of the Plan.
(b) Existing flood protection. Each Project Implementation Report
shall include appropriate analyses, and consider the operational
conditions included in the pre-CERP baseline developed pursuant to
Sec. 385.35(a), to demonstrate that the levels of service for flood
protection that:
(1) Were in existence on the date of enactment of section 601 of
WRDA 2000; and
(2) Are in accordance with applicable law, will not be reduced by
implementation of the project.
(c) Improved and new flood protection. The overarching objective of
the Plan is the restoration, preservation, and protection of the South
Florida Ecosystem while providing for other water-related needs of the
region, including water supply and flood protection. As appropriate,
the Corps of Engineers and the non-Federal sponsor shall consider
opportunities to provide additional flood protection, consistent with
restoration of the natural system, and the provisions of section
[[Page 64243]]
601(f)(2)(B) of WRDA 2000 and other applicable laws.
Sec. 385.38 Interim goals.
(a) Agreement. (1) The Secretary of the Army, the Secretary of the
Interior, and the Governor shall, not later than December 13, 2004, and
in consultation with the Environmental Protection Agency, the
Department of Commerce, the Miccosukee Tribe of Indians of Florida, the
Seminole Tribe of Florida, and other Federal, State, and local
agencies, and the South Florida Ecosystem Restoration Task Force,
execute an Interim Goals Agreement establishing interim goals to
facilitate inter-agency planning, monitoring, and assessment so as to
achieve the overarching objectives of the Plan and to provide a means
by which the restoration success of the Plan may be evaluated, and
ultimately reported to Congress in accordance with Sec. 385.40
throughout the implementation process.
(2) After execution of the Interim Goals Agreement, the Department
of the Army shall memorialize the agreement in appropriate Corps of
Engineers guidance.
(b) Purpose. (1) Interim goals are a means by which the restoration
success of the Plan may be evaluated at specific points by agency
managers, the State, and Congress throughout the overall planning and
implementation process. In addition, interim goals will facilitate
adaptive management and allow the Corps of Engineers and its non-
Federal sponsors opportunities to make adjustments if actual project
performance is less than anticipated, including recommending changes to
the Plan. Interim goals are not standards or schedules enforceable in
court.
(2) The interim goals shall:
(i) Facilitate inter-agency planning, monitoring and assessment;
(ii) Be provided to the independent scientific review panel
established in accordance with Sec. 385.22(a);
(iii) Be considered in developing the Master Implementation
Sequencing Plan, Project Implementation Reports, and Comprehensive Plan
Modification Reports; and
(iv) Be considered in making budgetary decisions concerning
implementation of the Plan.
(3) To ensure flexibility in implementing the Plan over the next
several decades, and to ensure that interim goals may reflect changed
circumstances or new information resulting from adaptive management,
the interim goals may be modified, consistent with the processes set
forth in paragraph (d) of this section, to reflect new information
resulting from changed or unforeseen circumstances, new scientific and
technical information, new or updated modeling; information developed
through the assessment principles contained in the Plan; and future
authorized changes to the Plan integrated into the implementation of
the Plan.
(4) The Corps of Engineers and the South Florida Water Management
District shall sequence and schedule projects as appropriate to achieve
the interim goals and the interim targets established pursuant to Sec.
385.39 to the extent practical given funding, technical, or other
constraints.
(5) If the interim goals have not been met or are unlikely to be
met, then the Corps of Engineers and the South Florida Water Management
District shall determine why the interim goals have not been met or are
unlikely to be met and either:
(i) Initiate adaptive management actions pursuant to Sec.
385.31(d) to achieve the interim goals as soon as practical, consistent
with the purposes of the Plan and consistent with the interim targets
established pursuant to Sec. 385.39; or
(ii) Recommend changes to the interim goals in accordance with
paragraph (b)(3) of this section.
(c) Principles for developing interim goals. (1) RECOVER, using
best available science and information, shall recommend a set of
interim goals for implementation of the Plan, consisting of regional
hydrologic performance targets, improvements in water quality, and
anticipated ecological responses for areas such as, Lake Okeechobee,
the Kissimmee River Region, the Water Conservation Areas, the Lower
East Coast, the Upper East Coast, the Everglades Agricultural Area, and
the Caloosahatchee River, Everglades National Park, Big Cypress
National Preserve, Biscayne Bay, Florida Bay, and other estuaries and
nearshore areas. These interim goals shall reflect the incremental
accomplishment of the expected performance level of the Plan, and will
identify improvements in quantity, quality, timing, and distribution of
water for the natural system provided by the Plan in five-year
increments that begin in 2005, with the goals reflecting the results
expected to be achieved by 2010 and for each five-year increment
thereafter. The interim goals shall be developed through the use of
appropriate models and tools and shall provide a quantitative basis for
evaluating the restoration success of the Plan during the period of
implementation. In developing the interim goals for the five-year
increments, RECOVER shall use the Master Implementation Sequencing Plan
as the basis for predicting performance at a given time. RECOVER may
recommend additional interim goals in addition to those initially
developed and may propose revisions to the initial set of interim goals
as new information is gained through adaptive management. Interim goals
shall include incremental improvements in the quantity, quality,
timing, and distribution of water anticipated to be required to meet
long-term hydrological and ecological restoration goals, based on best
available science. These goals may be modified, based on best available
science and the adaptive assessment principles contained in the Plan,
in accordance with paragraph (d) of this section.
(2) In developing its recommendations for interim goals, RECOVER
shall consider indicators including, but not limited to:
(i) Hydrologic indicators, including:
(A) The amount of water, in addition to the pre-CERP baseline and
assumptions regarding without project conditions, which will be
available to the natural system;
(B) Hydroperiod targets in designated sample areas throughout the
Everglades;
(C) The changes in the seasonal and annual overland flow volumes in
the Everglades that will be available to the natural system;
(D) The frequency of extreme high and low water levels in Lake
Okeechobee; and
(E) The frequency of meeting salinity envelopes in estuaries such
as the St. Lucie, Caloosahatchee, Biscayne Bay, and Florida Bay and
nearshore areas.
(ii) Improvement in water quality; including:
(A) Total phosphorus concentrations in the Everglades; and
(B) Lake Okeechobee phosphorus concentrations.
(iii) Ecological responses, including:
(A) Increases in total spatial extent of restored wetlands;
(B) Improvement in habitat quality; and
(C) Improvement in native plant and animal abundance.
(3) In developing the interim goals based upon water quality and
expected ecological responses, the Corps of Engineers, The Department
of the Interior, and the South Florida Water Management District shall
take into consideration the extent to which actions undertaken by
Federal, State, tribal, and other entities under programs not within
the scope of this part may affect achievement of the goals.
(d) Process for establishing interim goals. (1) The recommendations
of RECOVER shall be provided to the
[[Page 64244]]
Corps of Engineers, the Department of the Interior, and the South
Florida Water Management District. These recommendations shall be
provided no later than June 14, 2004. The proposed Interim Goals
Agreement shall be developed by the Secretary of the Army, the
Secretary of the Interior and the Governor in consultation with the
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida,
the Environmental Protection Agency, the Department of the Commerce,
other Federal, State, and local agencies, and the South Florida
Ecosystem Restoration Task Force. In considering the interim goals to
be included in the Interim Goals Agreement, the Secretary of the Army,
the Secretary of the Interior, and the Governor, shall be provided
with, and consider, the technical recommendations of RECOVER and any
modifications to those recommendations by the Corps of Engineers, the
Department of Interior, or the South Florida Water Management District.
The Secretary of the Army shall provide a notice of availability of the
proposed agreement to the public in the Federal Register and seek
public comments. After considering comments of the public on the
proposed agreement, and incorporating any suggestions that are
appropriate and consistent with the goals and purposes of the Plan, the
Secretary of the Army, the Secretary of the Interior, and the Governor,
shall execute the final agreement, and the Secretary of the Army shall
provide a notice of availability to the public in the Federal Register
by no later than December 13 2004.
(2) In developing its recommendations for interim goals, RECOVER
shall use the principles in paragraph (c) of this section.
(3) The Secretary of the Army, the Secretary of the Interior, and
the Governor shall review the Interim Goals Agreement at a minimum of
every five years after the date of the Interim Goals Agreement, to
determine if the interim goals should be revised. Thereafter, the
Secretary of the Army, the Secretary of the Interior, and the Governor
shall revise the interim goals and execute a new agreement as
appropriate. However, the Secretary of the Army, the Secretary of the
Interior, and the Governor may review and revise the interim goals
whenever appropriate as new information becomes available. Any
revisions to the interim goals shall be consistent with the process
established in this section.
Sec. 385.39 Evaluating progress towards other water-related needs of
the region provided for in the Plan.
(a) Purpose. (1) The overarching objective of the Plan is the
restoration, preservation, and protection of the South Florida
ecosystem while providing for other water-related needs of the region,
including water supply and flood protection. Progress towards providing
for these other water-related needs shall also be evaluated.
(2) As provided for in paragraph (c) of this section, the Secretary
of the Army and the Governor shall establish interim targets for
evaluating progress towards other water-related needs of the region
provided for in the Plan throughout the implementation process. The
interim targets and interim goals shall be consistent with each other.
(3) The Department of the Army shall include these interim targets
in appropriate Corps of Engineers guidance.
(4) To ensure flexibility in implementing the Plan over the next
several decades, and to ensure that interim targets may reflect changed
circumstances or new information resulting from adaptive management,
the interim targets may be modified, consistent with the processes set
forth in paragraph (c) of this section, to reflect new information
resulting from changed or unforeseen circumstances, new scientific and
technical information, new or updated modeling; information developed
through the assessment principles contained in the Plan; and future
authorized changes to the Plan integrated into the implementation of
the Plan.
(5) The Corps of Engineers and the South Florida Water Management
District shall sequence and schedule projects as appropriate to achieve
the interim goals and interim targets for other water-related needs of
the region provided for in the Plan, to the extent practical given
funding, technical, or other constraints.
(6) If the interim targets have not been met or are unlikely to be
met, then the Corps of Engineers and the South Florida Water Management
District shall determine why the interim targets have not been met or
are unlikely to be met and either:
(i) Initiate adaptive management actions pursuant to Sec.
385.31(d) to achieve the interim targets as soon as practicable,
consistent with the purposes of the Plan and consistent with the
interim goals established pursuant to Sec. 385.38; or
(ii) Recommend changes to the interim targets in accordance with
paragraph (a)(4) of this section.
(b) Principles for developing interim targets. (1) RECOVER, using
best available science and information, shall recommend a set of
interim targets for evaluating progress towards other water-related
needs of the region provided for in the Plan. These interim targets
shall reflect the incremental accomplishment of the expected
performance level of the Plan, and will identify improvements in
quantity, quality, timing and distribution of water in five-year
increments that begin in 2005, with the targets reflecting the results
expected to be achieved by 2010 and for each five-year increment
thereafter. The interim targets shall be developed through the use of
appropriate models and tools and shall provide a quantitative basis for
evaluating progress towards other water-related needs of the region
provided for in the Plan during the period of implementation. In
developing the interim targets for the five-year increments, RECOVER
shall use the Master Implementation Sequencing Plan as the basis for
predicting the performance at a given time. RECOVER may recommend
additional interim targets for implementation of CERP in addition to
those initially developed and may propose revisions to the initial set
of interim targets as new information is gained through adaptive
management.
(2) In developing its recommendations for interim targets, RECOVER
shall consider indicators including, but not limited to:
(i) The frequency of water restrictions in the Lower East Coast
Service Areas at each time increment;
(ii) The frequency of water restrictions in the Lake Okeechobee
Service Areas at each time increment;
(iii) The frequency of meeting salt-water intrusion protection
criteria for the Lower East Coast Service Area at each time increment;
and
(iv) The frequency of water shortage restrictions on lands covered
under the Water Rights Compact Among the Seminole Tribe of Florida, the
State of Florida, and the South Florida Water Management District at
each time increment.
(c) Process for establishing interim targets. (1) The
recommendations of RECOVER shall be provided to the Corps of Engineers
and the South Florida Water Management District. These recommendations
shall be provided no later than June 14, 2004. The proposed interim
targets shall be developed by the Secretary of the Army and the
Governor, in consultation with the Department of the Interior, the
Environmental Protection Agency, the Department of Commerce, the
Miccosukee Tribe of Indians of Florida,
[[Page 64245]]
the Seminole Tribe of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, and the South
Florida Ecosystem Restoration Task Force. In considering the interim
targets, the Secretary of the Army and the Governor, shall be provided
with, and consider, the technical recommendations of RECOVER and any
modifications to those recommendations by the Corps of Engineers or the
South Florida Water Management District. The Secretary of the Army
shall provide a notice of availability of the proposed interim targets
to the public in the Federal Register and seek public comments. After
considering comments of the public on the proposed interim targets, and
incorporating any suggestions that are appropriate and consistent with
the goals and purposes of the Plan, the Secretary of the Army and the
Governor, shall establish the final interim targets, and the Secretary
of the Army shall provide a notice of availability to the public in the
Federal Register by no later than December 13, 2004, but not prior to
the execution of the Interim Goals Agreement pursuant to Sec. 385.38.
Interim targets are intended to facilitate inter-agency planning,
monitoring, and assessment throughout the implementation process and
are not standards or schedules enforceable in court.
(2) In developing its recommendations for interim targets, RECOVER
shall use the principles in paragraph (b) of this section.
(3) The Secretary of the Army and the Governor shall review the
interim targets at a minimum every five years beginning five years
after the establishment of the interim targets to determine if they
should be revised and to determine what those revisions should be. The
public shall also be provided with an opportunity to comment on the
proposed revisions. The Secretary of the Army and the Governor may also
revise the interim targets whenever appropriate as new information
becomes available. Any revisions to the interim targets shall be
established consistent with the process described in this section.
Sec. 385.40 Reports to Congress.
(a) Beginning on October 1, 2005 and periodically thereafter until
October 1, 2036, the Secretary of the Army and the Secretary of the
Interior shall jointly submit to Congress a report on the
implementation of the Plan as required by section 601(l) of WRDA 2000.
Such reports shall be completed not less often than every five years.
(b) This report shall be prepared in consultation with the
Environmental Protection Agency, the Department of Commerce, the
Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida,
the Florida Department of Environmental Protection, the South Florida
Water Management District, and other Federal, State, and local agencies
and the South Florida Ecosystem Restoration Task Force.
(c) Such reports shall include a description of planning, design,
and construction work completed, the amount of funds expended during
the period covered by the report, including a detailed analysis of the
funds expended for adaptive management, and the work anticipated over
the next five-year period and updated estimates of total cost of the
Plan and individual component costs and an explanation of any changes
from the initial estimates contained in the ``Final Integrated
Feasibility Report and Programmatic Environmental Impact Statement,''
dated April 1, 1999.
(d) In addition, each report shall include:
(1) The determination of each Secretary, and the Administrator of
the Environmental Protection Agency, concerning the benefits to the
natural system and the human environment achieved as of the date of the
report and whether the completed projects of the Plan are being
operated in a manner that is consistent with the requirements of
section 601(h) of WRDA 2000;
(2) Progress towards the interim goals established in accordance
with Sec. 385.38 for assessing progress towards achieving the benefits
to the natural system;
(3) Progress towards interim targets for other water-related needs
of the region provided for in the Plan established pursuant Sec.
385.39 for assessing progress towards achieving the benefits to the
human environment; and
(4) A review of the activities performed by the Secretary pursuant
to section 601(k) of WRDA 2000 and Sec. 385.18 and Sec. 385.19 as
they relate to socially and economically disadvantaged individuals and
individuals with limited English proficiency.
(e) The discussion on interim goals in the periodic reports shall
include:
(1) A discussion of the performance that was projected to be
achieved in the last periodic report to Congress;
(2) A discussion of the steps taken to achieve the interim goals
since the last periodic Report to Congress and the actual performance
of the Plan during this period;
(3) If performance did not meet the interim goals, a discussion of
the reasons for such shortfall;
(4) Recommendations for improving performance; and
(5) The interim goals to be achieved in the next five years,
including any revisions to the interim goals, reflecting the work to be
accomplished during the next five years, along with a discussion of
steps to be undertaken to achieve the interim goals.
(f) The discussion on interim targets in the periodic reports shall
include:
(1) A discussion of the expected and actual performance of the Plan
in achieving interim targets since the last periodic Report to
Congress, including the reasons for any deviations from expected
performance; and
(2) A discussion of the interim targets expected to be achieved
during the next five years, including specific activities to achieve
them and any recommendations for improving performance.
(g) In preparing the report to Congress required pursuant to this
section, the Corps of Engineers and the Department of the Interior
shall provide an opportunity for public review and comment, in
accordance with Sec. 385.18.
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Appendix A to Part 385--Illustrations to Part 385
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[The following concurrency statements are an appendix to this
Federal Register document and will not appear in the Code of Federal
Regulations.]
[[Page 64248]]
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[FR Doc. 03-27968 Filed 11-10-03; 8:45 am]
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