[Code of Federal Regulations]

[Title 33, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 33CFR385.10]



[Page 623-625]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

 CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 

                                 DEFENSE

 

PART 385_PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES 

RESTORATION PLAN--Table of Contents

 

              Subpart B_Program Goals and Responsibilities

 

Sec.  385.10  Implementation responsibilities, consultation, and 

coordination.



    (a) Implementing agencies. Implementation of the Plan shall be the 

responsibility of the Corps of Engineers and the non-Federal sponsors.



[[Page 624]]



    (b) Consultation--(1) Consultation with tribes. (i) In addition to 

any other applicable provision for consultation with Native American 

Tribes, including but not limited to, laws, regulations, executive 

orders, and policies the Corps of Engineers and non-Federal sponsors 

shall consult with and seek advice from the Miccosukee Tribe of Indians 

of Florida and the Seminole Tribe of Florida throughout the 

implementation process to ensure meaningful and timely input by tribal 

officials regarding programs and activities covered by this part. 

Consultation with the tribes shall be conducted on a government-to-

government basis.

    (ii) In carrying out their responsibilities under section 601 of 

WRDA 2000 with respect to the restoration of the South Florida 

ecosystem, the Secretary of the Army and the Secretary of the Interior 

shall fulfill any obligations to the Indian tribes in South Florida 

under the Indian trust doctrine as well as other applicable legal 

obligations.

    (2) Consultation with agencies. The Corps of Engineers and non-

Federal sponsors shall consult with and seek advice from the Department 

of the Interior, the Environmental Protection Agency, the Department of 

Commerce, the Florida Department of Environmental Protection, and other 

Federal, State, and local agencies throughout the implementation process 

to ensure meaningful and timely input by those agencies regarding 

programs and activities covered under this part. The time for, and 

extent of, consultation shall be appropriate for, and limited by, the 

activity involved.

    (c) Coordination. The Corps of Engineers and the non-Federal sponsor 

shall coordinate implementation activities and the preparation of 

documents with other Federal, State, and local agencies and the tribes 

to fulfill the requirements of all applicable Federal and State laws, 

including but not limited to, the Fish and Wildlife Coordination Act, 

the National Environmental Policy Act, the Clean Air Act, the Clean 

Water Act, the National Historic Preservation Act, the Coastal Zone 

Management Act, the Marine Mammal Protection Act, and the Endangered 

Species Act.

    (d) Timeliness obligations of consultation. Consultation involves 

reciprocal obligations: on the part of the Corps of Engineers and the 

non-Federal sponsor to involve agencies, tribes, and the public at an 

early stage and in such a way to ensure meaningful consultation, and on 

the part of the parties consulted to respond in a timely and meaningful 

fashion so that the implementation of the Plan is not jeopardized and so 

that delays do not result in other adverse consequences to restoration 

of the natural system, to the other goals and purposes of the Plan, or 

to the public interest generally. Prescribed time limits set by 

regulation are too inflexible for the entire consultation process. It is 

expected that the Corps of Engineers and the non-Federal sponsor will 

set reasonable time limits for consultation on specific decisions 

consistent with the purposes of this part and that the parties will 

consult in a timely and meaningful way. The Corps of Engineers and the 

non-Federal sponsor recognize that the time limits established for each 

specific decision will be proportionate to the complexity of the 

decision and will take into account the resources of the entity with 

whom the consultation is occurring in order to allow consultation to 

occur in a meaningful way. This part does not intend for a delay in 

consultation to be used as a de facto veto power. This part authorizes 

the Corps of Engineers and the non-Federal sponsor to set reasonable 

limits on the amount of time for consultation. In setting reasonable 

time limits, the agencies and tribes may consider relevant 

considerations such as sequencing of projects, planning, contracting and 

funding, and any factor listed for setting time limits for consulting 

under the National Environmental Policy Act (NEPA) (40 CFR 1501.8), 

including but not limited to, the nature and size of the proposed 

action, the degree to which relevant information is known or obtainable, 

the degree to which the action is controversial, the state of the art of 

analytical techniques, the number of persons affected, and the 

consequences of delay. In engaging in consultation, the Corps of 

Engineers and non-Federal sponsor shall inform the agencies, tribes, and



[[Page 625]]



public of the ending date for consultation. In addition, the agencies 

and tribes should adhere to all time limits imposed by law, regulations 

or executive order. In appropriate circumstances, the Corps of Engineers 

and the non-Federal sponsor may extend the time for consultation upon a 

showing that delays will not result in adverse consequences to the 

implementation of the Plan, to the restoration of the natural system, to 

the other goals and purposes of the Plan, or to the public interest and 

that relevant considerations justify a longer time. Failure of an 

agency, tribe or the public to engage in consultation with the Corps of 

Engineers and the non-Federal sponsor, or file comments in, a timely and 

meaningful way shall not be a sufficient reason for extending a 

consultation or comment period. Nothing in this part is intended to 

alter existing time limits established by statute or other regulations.

    (e) South Florida Ecosystem Restoration Task Force. The Department 

of the Army recognizes the valuable role that the South Florida 

Ecosystem Restoration Task Force (Task Force), its working group, and 

its other advisory bodies play in the discussion and resolution of 

issues related to the South Florida ecosystem. The Corps of Engineers 

and the South Florida Water Management District regularly brief the Task 

Force on the Plan and regularly serve on the working group and other 

advisory bodies. The Corps of Engineers and the South Florida Water 

Management District and other non-Federal sponsors shall continue to 

provide information to, and consult with, the South Florida Ecosystem 

Restoration Task Force, the Florida-based working group, and advisory 

bodies to the Task Force as appropriate throughout the implementation 

process for the Plan. In addition to consultation with the Task Force 

specified elsewhere in this part, the Corps of Engineers and the South 

Florida Water Management District shall consult with the South Florida 

Ecosystem Restoration Task Force, its working group, and its advisory 

bodies, on other matters related to the implementation of the Plan, as 

the Task Force from time to time may request. Pursuant to the provisions 

of WRDA 1996, the Task Force shall provide general input concerning the 

implementation of the Plan. The Task Force shall provide recommendations 

to the Secretary of the Army regarding the implementation of the Plan, 

as provided in this part. The Secretary of the Army shall notify the 

Task Force to ensure it is afforded an opportunity to review and provide 

recommendations on reports and products, including but not limited to, 

interim goals and interim targets, Project Implementation Reports, Pilot 

Project Design Reports, Pilot Project Technical Data Reports, the pre-

CERP baseline, assessment reports, guidance memoranda, Master 

Implementation Sequencing Plan, Comprehensive Plan Modification Reports, 

periodic CERP updates, and reports to Congress prepared pursuant to 

Sec.  385.40.