[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 reporti