[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: 33CFR385.36]



[Page 650-651]

 

                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 E_Ensuring Protection of the Natural System and Water 

     Availability Consistent With the Goals and Purpose of the Plan

 

Sec.  385.36  Elimination or transfer of existing legal sources of water.



    (a) Pursuant to the provisions of section 601(h)(5)(A) of WRDA 2000, 

Project Implementation Reports shall include



[[Page 651]]



analyses to determine if existing legal sources of water are to be 

eliminated or transferred as a result of project implementation. If 

implementation of the project shall cause an elimination or transfer of 

existing legal sources of water, then the Project Implementation Report 

shall include an implementation plan that ensures that such elimination 

or transfer shall not occur until a new source of water of comparable 

quantity and quality is available to replace the water to be lost as a 

result of implementation of the Plan. The Corps of Engineers and the 

non-Federal sponsor shall determine if implementation of the project 

will cause an elimination or transfer of existing legal sources of water 

by comparing the availability of water with the recommended project with 

the pre-CERP baseline developed in accordance with Sec.  385.35(a), by 

using the water quality and other analyses developed in Sec.  

385.35(a)(1)(iii), and by using other appropriate information.

    (b) The Corps of Engineers and the South Florida Water Management 

District shall develop a guidance memorandum in accordance with Sec.  

385.5 for approval by the Secretary of the Army, with the concurrence of 

the Secretary of the Interior and the Governor, that describes the 

process for determining if existing legal sources of water are to be 

eliminated or transferred and for determining how and when a new source 

of water of comparable quantity and quality as that available on the 

date of enactment of WRDA 2000 is available to replace the water to be 

lost as a result of implementation of the Plan. The guidance memorandum 

shall also describe the process for comparing the recommended project 

with the pre-CERP baseline to determine if existing legal sources of 

water are to be transferred or eliminated as a result of project 

implementation. The guidance memorandum shall include a definition for 

existing legal sources of water for the purposes of determining if 

existing legal sources of water are to be eliminated or transferred. 

Existing legal sources of water shall include those for:

    (1) An agricultural or urban water supply;

    (2) Allocation or entitlement to the Seminole Indian Tribe of 

Florida under section 7 of the Seminole Indian Land Claims Settlement 

Act of 1987 (25 U.S.C. 1772e);

    (3) The Miccosukee Tribe of Indians of Florida;

    (4) Water supply for Everglades National Park; and

    (5) Water supply for fish and wildlife.

    (c) Until guidance is issued, issues involving existing legal 

sources of water should be resolved on a case-by-case basis considering 

all factors that can be identified as relevant to decisions under the 

savings clause.