[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2007]
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 
 
     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.