[Federal Register Volume 67, Number 149 (Friday, August 2, 2002)]
[Proposed Rules]
[Pages 50540-50575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19240]
[[Page 50539]]
-----------------------------------------------------------------------
Part III
Department of Defense
-----------------------------------------------------------------------
Department of the Army, Corps of Engineers
-----------------------------------------------------------------------
33 CFR Part 385
Programmatic Regulations for the Comprehensive Everglades Restoration
Plan; Proposed Rule
Federal Register / Vol. 67, No. 149 / Friday, August 2, 2002 /
Proposed Rules
[[Page 50540]]
-----------------------------------------------------------------------
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: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Army Corps of Engineers proposes 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 within two years to ensure that the
goals and purposes of the Comprehensive Everglades Restoration Plan are
achieved. We have developed these proposed regulations in response to
that statutory requirement. The proposed regulations establish
processes and procedures that will guide the Army Corps of Engineers
and its partners in the implementation of the Comprehensive Everglades
Restoration Plan.
DATES: We will accept comments until October 1, 2002.
ADDRESSES: If you wish to comment on the proposed regulations, you may
submit your comments by any one of several methods:
1. You may submit written comments to U.S. Army Corps of Engineers,
ATTN: CESAJ-DR-R, P.O. Box 4970, Jacksonville, FL 32232-0019.
2. You may send comments by electronic mail (e-mail) to:
[email protected]. See the Public Comments Solicited section below
for file formats and other information about electronic filing.
3. You may also submit comments through the Internet by completing
a comment form on the programmatic regulations web page at: http://www.evergladesplan.org/pm/progr_regs_comment_form.shtml/.
FOR FURTHER INFORMATION CONTACT: Stu Appelbaum, Corps of Engineers,
Jacksonville District, at the above address, phone (904) 232-1877; fax
(904) 899-5001. You may also access the programmatic regulations web
page at: http://www.evergladesplan.org/pm/progr_regs.shtml/.
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 regulations implement this provision and establish
the administrative structure for carrying out the Plan. They 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.
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, operating manuals, and design documentation
reports. The more generally applicable system-wide measures include,
but are not limited to, the development of guidance memoranda, system-
wide performance measures, the Master Implementation Sequencing Plan,
interim goals, and targets for evaluating progress towards achieving
other water-related needs of the region, including water supply and
flood protection. The interim goals and 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 impacted 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
purposes. The authorized purposes 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 authorized purposes, 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 and
preserve south Florida's natural ecosystem, while enhancing water
supplies and maintaining flood protection. 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. The Plan contains 68 major components that involve creation of
approximately 217,000 acres of reservoirs and wetland-based water
treatment areas, wastewater reuse plants, seepage management, and
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 maintaining existing Central
and Southern Florida Project purposes. The Comprehensive Everglades
Restoration Plan will restore more natural flows of water, including
sheet flow; improve water quality; and establish more natural
hydroperiods in the South Florida ecosystem. Improvements to native
flora and fauna, including those that benefit threatened and endangered
species, are expected to occur as a result of the restoration of
hydrologic conditions.
In enacting section 601 of WRDA 2000, Congress approved the
Comprehensive Everglades Restoration Plan as a framework for
modifications to
[[Page 50541]]
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 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.'' This
subsection 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 of 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 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 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 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. The proposed
regulations are a specific response to the requirements of this
section.
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 level
of service for flood protection that is in existence on the date of
enactment and in accordance with applicable law.
II. Process for Developing the Proposed Regulations
The Army developed the proposed 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, we 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 draft outline. We also
consulted with the Miccosukee Tribe of Indians of Florida and the
Seminole Tribe of Florida, and sought their comments on the 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 for 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 we 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 solutions to 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.
Finally, we developed the proposed regulations 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. Major Issues Addressed in Developing the Programmatic
Regulations
A. General
As discussed, we held numerous meetings with agencies, tribes,
interest groups, and the public. The initial draft regulations released
in December 2001 prompted a number of written comments by agencies,
tribes, interest groups, and the public. The major issues identified in
those comments and how we considered the comments in developing the
proposed rule are described in the following sections.
B. References to Senate Committee Report Language
A number of comments concerned referring to the Senate Environment
and Public Works Committee Report (Senate Report No. 106-362) in the
preamble to the proposed regulations. Some commenters believed that the
Senate Report sets forth guidance for implementing the Plan and
fulfilling the assurances provisions of section 601(h) of WRDA 2000.
Others expressed the opinion that Senate Committee Report 106-362
carries no legislative weight since the bill discussed in Senate
Committee Report 106-362 differs in several critical areas from the
final version of the bill adopted by the full United States Senate. We
have referred
[[Page 50542]]
to the Senate Report in the proposed regulations, like any other part
of the history of the Plan, where we believe it may be helpful to
understanding the statute or the issues involved in interpreting or
implementing the statute.
C. Defining Restoration
Many comments concerned the value of defining restoration in the
regulation. Some commenters expressed the view that a definition is
needed in order to better define what is meant by the phrase
``restoration, preservation, and protection of the South Florida
ecosystem'' used in section 601 of WRDA 2000.
Some commenters maintained that the Plan is only a framework and
that Congress expected the implementing agencies to propose
improvements to the Plan's goal of restoration through a regular
process of adaptive management. These commenters believed that a
comprehensive definition of restoration, including environmental and
ecological recovery of the natural system, is needed to guide the
process.
While recognizing the theoretical merits of these views, other
commenters felt that this concept of restoration was too open-ended.
These commenters believed that Congress adopted a specific framework
for restoration in enacting WRDA 2000 and that framework was set forth
in the Comprehensive Everglades Restoration Plan. They maintained that
the restoration authorized by this Plan, while extensive, does not
envision restoring the Everglades to its natural condition before the
intervention of humans.
For the purposes of this regulation, we have adopted a middle
ground between these two perspectives. We have defined the term
``restoration'' to mean the level of recovery and protection described
in the plan that was approved by Congress in enacting WRDA 2000 as a
framework for hydrologic restoration, and any future Congressional
amendments to that framework. However, we have also highlighted in the
definition that the Plan is designed to deliver water to and improve
water quality in the natural system so that it once again exhibits and
sustains essential physical and ecological characteristics that defined
the pre-drainage South Florida ecosystem, including more natural
hydropatterns, and that these hydrological modifications are a
precursor to improvements to native flora and fauna, restoration of key
habitats, and promotion of a pattern of plant communities that form a
gradient from aquatic communities to uplands. Our proposed definition
also envisions using the principles of adaptive management to seek
continuous improvement of the Plan based upon new information resulting
from changed or unforeseen circumstances, new scientific or technical
information, or information developed through the adaptive assessment
principles contained in the Plan, or future authorized changes to the
Plan that are integrated into the implementation of the Plan.
In adopting this definition, we recognize that the Plan envisions
the recovery and maintenance of certain important ecological components
and patterns that are thought to have characterized the natural system.
Achievement of these attributes is expected to result in the overall
improvement of the environment of the South Florida ecosystem,
including improvements to native flora and fauna, including threatened
and endangered species; restoring the presence of key species in
historic habitats; promoting a pattern of plant communities that form a
gradient from aquatic communities to uplands; and providing habitat
within the Everglades natural system to the species that inhabit the
Everglades. These improvements are accomplished generally by increasing
water storage and water supply for the Everglades natural system;
restoring more natural flows of water, including sheet flow;
establishing more natural hydroperiods, including wet and dry season
cycles, natural recession rates, surface water depth patterns, and, in
coastal areas, salinity and mixing patterns; and protecting water
quality for the Everglades natural system as described in the Plan.
It is important to understand that the ``restored'' Everglades of
the future will be different from any version of the Everglades that
has existed in the past. While it will be significantly healthier than
the current system, it will not completely match the pre-drainage
system. The irreversible physical changes made to the ecosystem make a
complete match impossible. The restored Everglades will be smaller and
somewhat differently arranged than the historic ecosystem. However, it
will have recovered those essential hydrological and biological
characteristics that defined the original Everglades and made it unique
among the world's wetlands systems. It will evoke the wildness and
richness of the former Everglades.
D. Partnership With the State of Florida and With Others
Implementation of the Comprehensive Everglades Restoration Plan
will require an effective partnership between the Federal and State
governments. The State of Florida has established a trust fund, the
Save Our Everglades Trust Fund, to pay for a significant portion of the
non-Federal sponsor's share of implementation of the Plan and the South
Florida Water Management District will serve as the non-Federal sponsor
for implementing many of the projects of the Plan. Section 601 of WRDA
2000 recognizes the importance of this constructive relationship and
further encourages this partnership.
The proposed regulations promote the implementation of the
Comprehensive Everglades Restoration Plan by defining the processes and
procedures needed to accomplish the necessary planning, design,
construction, and operation of the projects authorized pursuant to the
Plan. In addition, the proposed regulations establish a process of
adaptive management where completed projects are monitored and assessed
and changes to the Plan, its operations, or the schedule and sequence
of projects are considered as appropriate to ensure that the goals and
purposes of the Plan are achieved. The processes and requirements
included in the proposed regulations also were developed to take into
account the interests of the South Florida Water Management District,
the State of Florida, or other non-Federal sponsors as the Plan is
implemented. The proposed regulations also recognize that the non-
Federal sponsor for some projects of the Plan will be governmental
entities other than the South Florida Water Management District.
E. Consultation
The implementation of the Comprehensive Everglades Restoration Plan
is the responsibility of the Corps of Engineers and the non-Federal
sponsor; however, successful implementation of the Comprehensive
Everglades Restoration Plan requires not just the involvement of the
implementing agencies, but also extensive involvement by other Federal,
State, local agencies, and the Tribes. The proposed regulations
envision that the implementing agencies will consult 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
[[Page 50543]]
local agencies as part of the planning and implementation process. The
consultation provisions ensure that these interested parties are
appropriately involved with the Corps of Engineers and the non-Federal
sponsor in implementing, evaluating, and adapting the Plan.
The consultation provisions contemplate a timely exchange of views
between parties. In other words, consultation is not to be used as a de
facto veto power. Similar to the considerations for setting time limits
for consulting under NEPA (40 CFR 1501.8), the regulations envision
that the Corps of Engineers and the South Florida Water Management
District may set reasonable limits on the amount of time for
consultation, giving due consideration to the 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,
the consequences of delay, and other time limits imposed on the agency
by law, regulations, or executive order.
F. Amount of Detail in the Proposed Regulations
Many comments addressed the degree of detail in the regulations.
Some believed that the programmatic regulations should be very
detailed, specific, and prescriptive. Others believed that the
programmatic regulations should be more general. Some 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
such as national parks and wildlife refuges.
The proposed regulations attempt to address these concerns and
provide guidance in implementing the Plan. We recognize that more
detailed guidance memoranda will be needed to assist the implementation
of the Plan. We have determined that the guidance memoranda should not
be included in the programmatic regulations because they will be very
technical, and are intended to provide internal guidance to the
implementing agencies, and also because they still are in development.
This decision is consistent with the view of some who felt that
including the guidance memoranda in the regulations was incompatible
with rule-making procedures because of the changing nature of the
adaptive management process. These commenters were concerned that if
guidance memoranda were included in these regulations, every revision
to them would require us to initiate a rulemaking process. We expect
that revisions may occur frequently for some of these procedures,
particularly during the early stages of implementation of the Plan.
The programmatic regulations contemplate that the guidance
memoranda be developed six months after the effective date of the final
rule published in the Federal Register or December 31, 2003, whichever
is sooner, with the concurrence of the Secretary of the Interior and
the Governor. Even though we are not including the guidance memoranda
in the regulations, we believe that the public should have an
opportunity to review and comment on them in view of its interest in
these matters. Accordingly, the programmatic regulations envision that
we will provide a notice of availability of the guidance memoranda in
the Federal Register and seek public comments before they are
completed. After they are completed, the Corps of Engineers will
consider during the next review and revision of the programmatic
regulations, whether or not a particular guidance memorandum that has
been completed, is appropriate for inclusion in the regulations.
G. Restoration Coordination and Verification (RECOVER)
Many comments focused on the role of RECOVER in implementing the
Plan. Some of the commenters expressed concerns about how best to
integrate individual projects into the Plan to ensure that the goals
and purposes of the Plan are achieved. Others articulated concerns
about the need to use the best scientific information available.
Finally, some urged that RECOVER also focus on achieving the other
water-related needs provided for in the Plan such as water supply and
flood protection, along with restoration benefits.
RECOVER is an interdisciplinary, interagency scientific and
technical team that is described in the Plan. The proposed regulations
recognize that the Restoration Coordination and Verification (RECOVER)
team already is in place and envision using RECOVER to ensure that a
system-wide perspective is applied and that the best available
scientific and technical information will be used during the
implementation, evaluation, and adaptation of the Plan. The Corps of
Engineers and the South Florida Water Management District will oversee
the activities of RECOVER. The regulations also recognize the key role
of the Department of the Interior in RECOVER because of its extensive
experience in managing the Everglades National Park, and provide an
important role for the Department in the Leadership Group of RECOVER,
along with the Miccosukee Tribe of Indians of Florida, the Seminole
Tribe of Indians, the U.S. Environmental Protection Agency, the Florida
Department of Environmental Protection, and other Federal, State and
local agencies as appropriate. While RECOVER is not a policy making
body, the regulations outline a series of specific scientific and
technical responsibilities for RECOVER that will assist the
implementing agencies (the Corps of Engineers and the South Florida
Water Management District) in achieving the goals and purposes of the
Plan, particularly restoration of the natural system.
RECOVER will be responsible for, among other things, developing
system-wide performance measures for consideration by the Corps of
Engineers and South Florida Water Management District, in evaluating
projects in achieving the system-wide goals and purposes of the Plan,
preparing Project Implementation Reports, developing and recommending
proposals for a system-wide monitoring plan, conducting assessment
activities for the adaptive management program, considering proposed
revisions to the Plan, and developing recommendations for interim
goals. The proposed regulations memorialize many of the activities
already underway by RECOVER. The proposed regulations make it clear
that RECOVER is a scientific and technical team. Documents prepared by
RECOVER are not self-executing and must be reviewed, discussed,
revised, and/or approved by responsible management officials of the
Corps of Engineers and the South Florida Water Management District, in
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 appropriate prior to implementation of
management responses based on the results and findings contained
therein.
H. Independent Scientific Review
Some commenters emphasized the need to maintain the system-wide
focus of the Plan during implementation and felt that a mechanism must
be developed to ensure that the best and
[[Page 50544]]
most current scientific information be used throughout implementation.
Other commenters also expressed the view that an independent entity
should be responsible for reviewing the science used to support the
implementation of the Plan. The regulations recognize that, as required
by Section 601(j) of WRDA 2000, an independent scientific review panel
should be established. The proposed regulations do not establish this
panel, but provide for its establishment. The regulations include
provisions for cooperating with the panel, considering the panel's
advice, and responding to the panel's recommendations.
I. Project Implementation Reports
Section 601 of WRDA 2000 establishes a new type of reporting
document called a Project Implementation Report to bridge the gap
between the conceptual level of detail in the Comprehensive Everglades
Restoration Plan and the detail needed for project design. Section
601(h)(4)(A) of WRDA 2000 specifies a number of items required to be in
a Project Implementation Report, including identification of the
appropriate quantity, timing, and distribution of water dedicated and
managed for the natural system, and the identification of the amount of
water to be reserved or allocated for the natural system.
Some comments focused on the need to create a clearly defined
process for the development of Project Implementation Reports, and, in
particular, the formulation and evaluation of individual projects of
the Plan. The report of the Senate Committee on Environment and Public
Works on the Water Resources Development Act of 2000 (Senate Report No.
106-362) defines Project Implementation Reports as follows:
The project implementation report is a new type of reporting
document, similar to a General Reevaluation Report in that it will
contain additional project formulation and evaluation. The project
implementation report also will contain General Design Memorandum
level of detail, or higher, for engineering and design. Some of the
tasks associated with the preparation of the project implementation
report will include: surveys and mapping; geotechnical analyses;
flood damage assessment; real estate analyses; and preparation of
supplemental National Environmental Policy Act documents. The
project implementation reports will bridge the gap between the
programmatic-level design contained in the Plan and the detailed
design necessary to proceed to construction. Furthermore, each
project implementation report will be accompanied by a Project
Management Plan, which will detail schedules, funding requirements,
and resource needs for final design and construction of the project.
The proposed regulations provide guidance for the development of
Project Implementation Reports. They describe the requirements of a
Project Implementation Report, including providing information required
by the State of Florida for the participation of the non-Federal
sponsor in the implementation of various components of the Plan. These
requirements are set forth in Florida Statutes sections 373.1501 and
373.470, which specify the information that must be available before
State agencies can participate in implementation of CERP projects. The
proposed regulations contemplate that the Project Implementation Report
will contain performance evaluations of alternatives in achieving the
system-wide goals and purposes of the Plan, interim goals, and targets
for progress toward other water-related needs. The Project
Implementation Report also will include evaluations designed to ensure,
to the extent practicable and consistent with the system-wide goals and
purposes of the Plan, that the project delivers benefits, including
benefits to the natural system, that would justify the project, in the
context of the then existing Central and Southern Florida Project as
modified by any CERP components that have already been implemented. The
regulations also envision the development of a guidance memorandum that
describes the major tasks necessary to develop a Project Implementation
Report and an outline for the content of the Project Implementation
Report. Finally, the regulations provide for development of a guidance
memorandum establishing procedures for the formulation and evaluation
of projects.
J. Project Cooperation Agreements
The Project Cooperation Agreement is the legal agreement between
the Department of the Army and the non-Federal sponsor that must be
executed before a project can be constructed. Section 601(h) of WRDA
2000 requires that the Secretary not execute a Project Cooperation
Agreement until the State has reserved or allocated water for the
natural system under State law as described in the Project
Implementation Report. Some commenters questioned how the reservation
or allocation would be made in accordance with the Project
Implementation Report and how the Project Cooperation Agreement would
verify this allocation of reservation had, in fact, been made. These
commenters recommended that a guidance memorandum be developed to
outline how the verification would occur. Others commenters were
concerned that the Federal government not infringe on the State's
authority under state law to make and revise reservations as necessary.
We agree that a guidance memorandum should be developed that
outlines how Project Implementation Reports will identify how the
appropriate quantity, timing and distribution of water dedicated and
managed for the natural system will be determined, and how they will
identify the amount of water that is to be reserved or allocated for
the natural system in accordance with the provisions of WRDA 2000. The
proposed regulations state that the Project Cooperation Agreement must
include a finding that the reservation or allocation has been made by
the State as required by Section 601(h) of WRDA 2000. This will provide
the assurances regarding the reservation and Project Implementation
Report that Congress intended without infringing on the State's right
to reserve or allocate water under State law. In addition, the
regulations further specify that the Project Cooperation Agreement
(PCA) include a provision that any change to the reservation or
allocation of water for the natural system made under State law shall
require an amendment to the PCA. Further, the Secretary shall verify,
in consultation with the South Florida Water Management District, the
Florida Department of Environmental Protection, the Environmental
Protection Agency, the Department of Commerce, the Seminole Tribe of
Florida, the Miccosukee Tribe of Indians of Florida, and other Federal,
State, and local agencies that the revised reservation or allocation
continues to provide for an appropriate quantity, timing and
distribution of water dedicated and managed for the natural system
after considering any changed circumstances or information since
completion of the Project Implementation Report. Finally, the proposed
regulations recognize that the Project Cooperation Agreement must
include several provisions required by the savings clause of Section
601(h)(5) of WRDA 2000. Accordingly, the Project Cooperation Agreement
includes a provision that prohibits the Corps of Engineers and the non-
Federal sponsor from eliminating or transferring existing legal sources
of water until a new source of comparable quantity and quality is
available as that available on the date of enactment of WRDA 2000.
Similarly, in satisfaction of the savings clause requirements, the
regulations specify
[[Page 50545]]
that a Project Cooperation Agreement must include a provision that
existing levels of service for flood protection: (1) On the date of
enactment of WRDA 2000; and (2) in accordance with applicable law, not
be reduced.
K. Operating Manuals
Operating Manuals provide guidance on how projects are to be
operated to ensure that the goals and purposes of the Plan are
achieved. To achieve the goals and purposes of the Plan, individual
projects must be operated as part of a system. Some commenters sought
to ensure that Operating Manuals prepared for individual projects take
into account the system-wide purposes of the Plan. Accordingly, the
proposed regulations envision the development of two kinds of Operating
Manuals. In addition to Project Operating Manuals, a System Operating
Manual will be developed to provide a system-wide plan for operating
projects and other C&SF Project features to ensure that individual
facilities are linked together in a system-wide framework.
The regulations view Project Operating Manuals as supplements to
the System Operating Manual, presenting aspects of the project not
common to the system. The proposed regulations contemplate that a
Project Operating Manual will be developed for each project. A draft
Project Operating Manual will be included as an appendix in the Project
Implementation Report. This will connect the operation of the project
to the expected benefits of the project recommended in the Project
Implementation Report. The final Project Operating Manual is to be
prepared as soon as possible after completion of the operational
testing and monitoring phase of the project.
L. Sequencing and Scheduling of Projects
The Plan consists of 68 components that will be implemented as
approximately 45 separate projects, including pilot projects. The
``Final Integrated Feasibility Report and Programmatic Environmental
Impact Statement'' dated April 1, 1999, included a sequence and
schedule for implementation of the Plan. In July 2001, the Corps of
Engineers and the South Florida Water Management District updated the
sequence and schedule to incorporate updated information and
requirements from Congress and the Florida legislature. The sequence
and schedule of projects was the subject of many comments. Some
commenters sought to ensure that the sequencing and schedule of
projects would produce restoration benefits early in the implementation
process. Others were apprehensive of this early focus on restoration
benefits and were concerned that other water-related needs of the
region as provided for in the Plan would be postponed until late in the
implementation process. The proposed regulations establish a process
for developing a Master Implementation Sequencing Plan and specify 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 at the earliest possible time, to the extent practical
given scientific, technical, funding, contracting, and other
constraints. The Master Implementation Sequencing Plan will also
provide for sequencing and scheduling of projects to ensure, to the
extent practicable and consistent with the system-wide goals of the
Plan, that each project delivers benefits, including benefits to the
natural system, that would justify the project, in the context of the
then existing Central and Southern Florida Project as modified by any
CERP components that have already been implemented. The Master
Implementation Sequencing Plan will base the sequence and schedule of
projects on the best scientific, technical, funding, contracting, and
other information available.
The proposed regulations also envision 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.
M. Adaptive Management Program
One of the key components of the Plan is adaptive management.
Adaptive management provides the opportunity to improve the design and
performance of the Plan based on new information. The report of the
Senate Committee on Environment and Public Works on WRDA 2000 (Senate
Report No. 106-362) describes the intent of the adaptive management
program:
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.
The regulations define adaptive management as the process of
improving the understanding of the natural and human systems in the
South Florida ecosystem, specifically as these understandings pertain
to the goals and purposes of the Plan, and to ensure continuous
improvement of the Plan reflective of new information resulting from
changed or unforeseen circumstances, new scientific or technical
information, or information developed through the adaptive assessment
principles contained in the Plan, or future authorized changes to the
Plan. The opportunity for performance improvement offered by the
adaptive management program is crucial for dealing with the
uncertainties of the ecological responses that will occur as the Plan
is implemented. The proposed regulations establish an adaptive
management program to guide implementation of the Plan and recognize
the importance of assessment reports to this process.
The proposed regulations specify that the implementing agencies
will use assessment reports to seek continuous improvement in the Plan.
The proposed regulations provide that in considering how the Plan may
be improved, the Corps of Engineers and non-Federal project sponsor
specifically 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. RECOVER will be responsible for carrying out these
assessment tasks and submitting them to the Corps and the South Florida
Water Management District for review.
N. Revisions to the Plan
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 proposed regulations provide that a
Comprehensive Plan Modification Report 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
[[Page 50546]]
using a process consistent with the processes used to develop a Project
Implementation Report. The proposed regulations provide that the final
approved Comprehensive Plan Modification Report will be transmitted to
Congress.
O. Ensuring Achievement of Plan Benefits
The Plan will improve the quantity, quality, timing, and
distribution of water to the South Florida ecosystem. Section 601(f) of
WRDA 2000 specifies that the Secretary in coordination with the non-
Federal sponsor prepare Project Implementation Reports prior to
implementation of those projects. Section 601(h)(4)(A) of WRDA 2000
specifies a number of items required to be in a Project Implementation
Report, including identification of the appropriate quantity, timing,
and distribution of water dedicated and managed for the natural system,
and the identification of the amount of water to be reserved or
allocated for the natural system. The reservation or allocation of
water for the natural system will be implemented under State law and
must be made before the Army can execute a Project Cooperation
Agreement for the project. ``State law'' includes reservations or
allocations of water made by Florida's Water Management Districts under
authority of State law.
A number of commenters expressed the view that the Plan required
that water be reserved for the natural system on an 80%-20% basis.
These commenters rely on the report of the Senate Committee on
Environment and Public Works on WRDA 2000 (Senate Report No. 106-362)
that 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).
Although those percentages were appropriate as an initial estimate
for the purpose of evaluating the Plan, the regulations anticipate that
each Project Implementation Report will 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 will be
continually evaluated through adaptive management. Accordingly, the
water actually allocated to meet the needs of the natural system and
the water allocated under the Savings Clause may be greater or less
than the initial Plan estimate. Therefore, the regulations do not
contemplate that water will be strictly allocated on an 80%-20% basis,
either system-wide or on a project-by-project basis.
Many commenters questioned how water would be reserved or allocated
for the natural system. These questions focused on how the statutorily-
required identification of water reservations and allocations for the
natural system in each Project Implementation Report, would be
coordinated with the actual reservation or allocation process which is
conducted under State law.
Developing the pre-CERP baseline is of central importance to
ensuring attainment of the benefits of the Plan and to resolving this
issue. This baseline represents the conditions in the region on the
date of enactment of WRDA 2000 accounting for natural variations and
including existing legal sources of water. The baseline will establish
the amount of water that is presently delivered by the Central and
Southern Florida Project. The proposed regulations provide that the
pre-CERP baseline will be established by June 30, 2003. The proposed
regulations also provide that each Project Implementation Report will
consider the change of pre-CERP baseline water availability in
identifying the quantity, timing, and distribution of water to be made
available for the natural system by a project component; whether
improvements in water quality are needed in order to ensure that water
delivered to the natural system meets applicable water quality
standards; whether additional quantity, timing, and distribution of
water and/or improved water quality should be made available by
subsequent projects; whether to recommend preparation of a
Comprehensive Plan Modification Report; and whether to recommend that
the State of Florida and its agencies re-examine the reservation or
allocation of water needed under State law in order to meet the needs
of the natural system and such uses identified under the savings
clause.
The Comprehensive Everglades Restoration Plan was developed as an
integrated set of components or projects that are intended to work
together to successfully achieve the goals and purposes of the Plan.
Although individual projects increase the amount of water available,
the effect of an individual project extends far beyond the location of
the project. Accordingly, it is important that the identification of
water to be reserved for the natural system take into account the
synergistic and regional effect of projects. The proposed regulations
contemplate that a guidance memorandum will be developed to provide
uniform guidance for quantifying water made available by projects and
for identifying the water to be reserved for the natural system. The
proposed regulations also provide direction for the development of the
guidance memorandum.
Some agencies, interest groups, and the public were concerned about
potential variations from the predicted availability of water once
projects actually are implemented and operated. The proposed
regulations provide that development of a Comprehensive Plan
Modification Report be undertaken to determine the need for revisions
to the Plan. The regulations also provide that in the interim during
preparation of the Comprehensive Plan Modification Report, operation of
the project should be consistent with the procedures identified in the
Project Implementation Report and Project Operating Manual.
P. Savings Clause Provisions
Many commenters questioned the effects of implementation of the
Plan on existing legal sources of water and on existing levels of flood
protection. As discussed, Section 601(h)(5)(A) of WRDA 2000 contains a
savings clause provision that is designed to ensure that existing
sources of water and levels of flood protection are preserved. The
report of the Senate Committee on Environment and Public Works on WRDA
2000 (Senate Report No. 106-362) describes the intent of this savings
clause 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. 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.
Although the savings clause uses the term ``existing legal sources
of water,'' it does not define the term. Nor could we find a definition
elsewhere in Federal or State law. We have not defined the term in the
proposed regulations, leaving the definition of an ``existing legal
source''
[[Page 50547]]
of water to be determined on a case-by-case basis after consideration
of all relevant facts. We may include a definition after considering
submitted comments. Currently, the proposed regulations specify 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. 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. Existing legal sources of water
may include water currently available for agriculture, water supply,
tribal use, or elements of the natural system including the Everglades,
as well as any other existing legal sources.
The proposed regulations require a Project Implementation Report to
include an analysis of the level of service for flood protection that
was in existence on the date of enactment of the statute; and is in
accordance with applicable law. If this analysis shows that the level
of service for flood protection would be reduced by implementation of a
project, then the regulations state that the project or its
implementation plan will be modified to mitigate or eliminate the
adverse effect on flood protection.
Some commenters raised the question of 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. 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 proposed regulations
allow for the evaluation of increased levels of flood protection or the
provision of flood protection in areas where there is currently no
flood protection, provided that such flood protection is consistent
with the goals and purposes of the Plan and is in accordance with the
provisions of section 601(f)(2)(B) of WRDA 2000 and other applicable
laws.
Q. Interim Goals
Many comments focused on development of the interim goals. Section
601(h)(3)(c)(i)(III) of WRDA 2000 requires that interim goals be
established to provide a means by which the restoration success of the
Plan may be evaluated throughout the restoration process. Progress
towards meeting the interim goals is to be reported to Congress as part
of the periodic reports required by the Act. While there was widespread
agreement among agencies, tribes, interest groups, and the public that
interim goals should be established to ensure that the goals and
purposes of the Plan are achieved, there were different views about
whether these interim goals should be a part of the programmatic
regulations. Some believed that the interim goals needed to be a part
of the programmatic regulations to ensure that the goals would be met.
They also believed that goals had to be incorporated into the
regulations to enable the public to take part in the process of
establishing the goals. Others were concerned that the statute
specifically required the regulations to set up the process for
establishing interim goals rather than the goals themselves. Additional
commenters were concerned that placing the interim goals in the
programmatic regulations would make goals difficult to adopt and amend,
and that the adaptive management process authorized by section 601 of
WRDA 2000 was incompatible with the Administrative Procedures Act rule-
making process. Other commenters were concerned that incorporating the
goals into the regulations would suggest that the goals were meant to
set standards or schedules enforceable in court rather than planning
targets, and assessment and reporting tools.
In addition, during development of the proposed regulations, it was
apparent that there was not complete agreement on exactly what the
interim goals should be. Staff of the implementing agencies required
additional time to model the implementation schedule to evaluate
expected performance at specific points in the implementation process.
This modeling is an important first step in developing incremental
stages (interim goals) for achieving that performance. Moreover, the
South Florida Ecosystem Restoration Task Force and others indicated an
interest in reviewing and discussing interim goals before they were
adopted. Thus, even among those who thought that interim goals should
be included in these regulations, it was clear that more time for
modeling was needed.
The proposed regulations recognize these facts and attempt to
accommodate the views of commenters by establishing the principles that
will guide the development of the interim goals and appropriately
involve the public. The proposed regulations establish the structure
for developing and adopting the interim goals, and make it clear that
interim goals are targets for use of the agencies and Congress in
evaluating the success of the restoration effort. They are not intended
to be standards or schedules enforceable in court.
The Restoration Coordination and Verification (RECOVER) team will
use the principles set forth in the proposed regulations to develop and
recommend a set of interim goals for implementation of the Plan no
later than June 30, 2003. The regulations specify that interim goals
shall reflect the incremental accomplishment of the expected
performance level of the Plan, and will identify improvements in
quantity, timing and distribution of water in five-year increments
beginning in 2005. The interim goals will also include indicators for
water quality improvement and ecological responses, such as increases
in extent of wetlands, improvements in habitat quality, and
improvements in native plant and animal abundance. However, the
regulations also recognize that achievement of improvements in water
quality and desired ecological responses may be dependent on other
programs and activities outside the scope of CERP. The extent of this
dependence on outside programs and activities should be explicitly
assessed and described at the time goals are developed, and should be
taken into account as the CERP is subsequently evaluated relative to
the goals. The interim goals shall be predicted by appropriate models
and tools and shall provide a quantitative basis for evaluating the
restoration success of the Plan during the period of implementation.
The expected level of the Plan is generally represented by the output
of the model run of D-13R as described in the ``Final Integrated
Feasibility Report and Programmatic Environmental Impact Statement''
dated April 1, 1999, as modified by section 601 of WRDA 2000, or any
subsequent modification authorized in law.
The proposed regulations envision that RECOVER will provide its
recommendations to the Corps of Engineers and South Florida Water
Management District for review and discussion. Interim goals will be
memorialized in an agreement to be signed by the Department of the
Army, the Department of the Interior, and the State no later than
December 31, 2003. The Department of the Army, the Department of the
Interior, and the State will provide a notice of availability of the
proposed agreement to the public in the Federal Register, seek public
[[Page 50548]]
comments, and consult with Miccosukee Tribe of Indians of Florida, the
Seminole Tribe of Florida, the Environmental Protection Agency, the
Department of Commerce, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies and the South
Florida Ecosystem Restoration Task Force concerning the proposed
interim goals. Finally, the proposed regulations establish a process
for revising the interim goals in five-year increments or sooner, if
appropriate in light of new information.
Finally, some commenters believed that the interim goals should
take into account other water-related needs of the region, including
water supply and flood protection, as provided for in the Plan. Other
commenters believed that the interim goals should not evaluate other
water-related needs of the region. We felt that the interim goals
should focus solely on restoration success because section
601(h)(3)(c)(i)(III) of WRDA 2000 specifies that the interim goals are
to provide a means by which restoration success may be evaluated
throughout the implementation process. The proposed regulations reflect
this view. However, the statute recognizes that providing for other
water-related needs of the region, including water supply and flood
protection, are also objectives of the Plan. Therefore, the proposed
regulations also provide for separately monitoring progress on other
water-related needs of the region as provided for in the Plan during
the implementation process, thus ensuring that all of the goals and
purposes of the Plan will be achieved.
R. Relationship Among Restoration, Performance Measures, and Interim
Goals
In order to comprehend how the Plan will be evaluated to ensure
that its restoration objectives are achieved, it is essential to
understand the relationship among the concepts of restoration,
performance measures, and interim goals. In this regulation,
restoration is defined as the level of recovery and protection to the
South Florida ecosystem described in the Plan approved by Congress,
with such modifications that Congress may provide for in the future. As
the regulations indicate, the concept of restoration in the Plan
approved by Congress was expressed in a level of recovery assessed in
terms of performance measures, consisting chiefly of hydrologic
characteristics. The definition also recognizes that increased flows to
the natural system are expected to restore essential physical and
ecological characteristics that defined the pre-drainage ecosystem,
including more natural hydroperiods, which are a precursor to
improvements to native flora and fauna, presence of key species in
historic habitats, and patterns of plant communities that form a
gradient from aquatic communities to uplands. The regulations recognize
that the concept of restoration anticipates future improvements to the
Plan through adaptive management. The regulations also recognize that
performance measures will continue to be refined and developed
throughout the course of implementing the Plan. Interim goals will show
incremental progress towards reaching the expected performance level of
the Plan at different time intervals during implementation. The
regulations envision that the RECOVER team will provide their
recommendations about interim goals to the Corps of Engineers and South
Florida Water Management District. These recommendations will be
considered during the development of an agreement on interim goals that
is to be finalized by the Army, the Department of the Interior, and the
State of Florida by December 31, 2003. These interim goals will be used
initially to evaluate the success of the restoration effort and will be
refined periodically during the implementation of the Plan as
appropriate to ensure that the overall restoration objectives of the
Plan are achieved.
S. 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. Some commenters urged that, in addition to
the interim goals aimed at evaluating restoration success of the Plan,
the regulations also should provide incremental targets for the other
water-related needs of the region. They believe that this will ensure
that all of the goals and purposes of the Plan are achieved. Others
commented that, if these other incremental targets were included,
progress towards achieving these targets should be evaluated separately
from interim goals.
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. Therefore, we
have decided to establish in the regulations a mechanism for evaluating
progress towards providing for these other water-related needs. The
regulations provide that by June 30, 2003, RECOVER will develop
recommendations on targets to evaluate progress on achieving the other
water-related needs of the region, for consideration by the Corps of
Engineers and the South Florida Water Management District, in
consultation with others. The Corps of Engineers and the South Florida
Water Management District will also consult with the South Florida
Ecosystem Restoration Task Force in establishing targets for evaluating
progress towards achieving other water-related needs of the region
provided for in the Plan. These targets shall be established by the
Corps of Engineers and the South Florida Water Management District by
December 31, 2003. These targets are intended to facilitate inter-
agency planning, monitoring, and assessment throughout the
implementation process and are not intended to be standards or
schedules enforceable in court.
Interim goals, which are directed at restoration success of the
Plan, and targets for achieving the other water-related needs of the
region, which are not directed at restoration, are set out in two
distinct sections to make clear that they are intended to evaluate two
different types of goals of the Plan.
In recognition of the significant technical and scientific analyses
that are needed in the development of interim goals and targets,
RECOVER has already begun the work necessary in order to meet the June
30, 2003 deadline for providing recommendations on interim goals and
targets for other water-related needs to the Corps of Engineers and the
South Florida Water Management District.
T. Role of the Department of the Interior
Several commenters urged that the Department of the Interior play a
significant role in implementation of the Plan because of its
stewardship role over Federal lands and natural resources involved in
the Plan. The regulations give the Department of the Interior a special
concurring 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: (1) General format and
content of Project Implementation Reports; (2) processes for Project
Delivery Team evaluation of alternatives developed for Project
Implementation Reports, their cost effectiveness and impacts; (3)
process for system-wide evaluation of PIR alternatives by RECOVER; (4)
the general content of operating manuals; (5) general processes for the
conduct of assessment activities of RECOVER; and
[[Page 50549]]
(6) the process used in Project Implementation Reports for identifying
the appropriate quantity, timing, and distribution of water dedicated
and managed for the natural system. The regulations also give the
Secretary of the Interior and the Governor of the State of Florida a
concurring role in the Secretary of the Army's determination of the
pre-CERP baseline. They also specify that interim goals will be
established through a formal Interim Goals Agreement between the Corps
of Engineers, the State, and the Department of the Interior. Further,
the Department of the Interior is provided an important role in the
Leadership Group of RECOVER, along with several other Federal and State
agencies and the two 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 Development Teams; development of the Adaptive
Management Program; selection and revision of hydrologic models;
development of Project Management Plans and Program Management Plans;
development of Project Implementation Reports; development of Operating
Manuals; development, review and revision of changes to the Master
Implementation Sequencing Schedule; recommending and developing
Comprehensive Plan Modification Reports; and developing means for
monitoring progress towards other water-related needs of the region as
provided for in the Plan.
U. Role of South Florida Ecosystem Restoration Task Force
Several commenters suggested that the Programmatic Regulations
create a specific role for the South Florida Ecosystem Restoration Task
Force, an interagency group created by section 528(f) of the Water
Resources Development Act of 1996 (110 Stat. 3770) (hereinafter ``WRDA
96''). The legal basis for the Task Force's role in the restoration
effort is found both in Section 528 of WRDA 96 and in Section 601 of
WRDA 2000. 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
South Florida ecosystem restoration. In Section 601(j) of WRDA 2000,
the Task Force is also given 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. Some members of the Task Force and its
associated working group represent agencies involved in implementing
CERP under the programmatic regulations, such as the Jacksonville
District Corps of Engineers and the South Florida Water Management
District. As recognized by this regulation, the South Florida Water
Management District and the Jacksonville District already regularly
report to the Task Force and its working group on CERP matters. The
Task Force also has appointed the Water Resources Advisory Commission
(WRAC) of the South Florida Water Management District as an advisory
body to the Task Force. The Corps of Engineers serves on this body and
regularly briefs that body on CERP. The Department of the Army
recognizes the important role that these collaborative groups play in
discussion and resolution of CERP issues.
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. If a regular process evolves, it can be incorporated
into revisions of the Programmatic Regulations.
At recent meetings, the Task Force expressed an interest in
consultation on several subjects. Accordingly, this draft regulation
incorporates consultation with the Task Force on those subjects. They
include: interim goals; targets for other water-related needs of the
region as provided for in the Plan; certain assessment reports;
Comprehensive Plan Modification Reports; Pilot Project Technical Data
Reports; and periodic reports to Congress by the Secretary of Army and
Secretary of Interior in consultation with EPA, Department of Commerce,
and the State of Florida. The final regulation may provide for
additional subjects upon which the Task Force may consult, if deemed
appropriate after consideration of public comments.
V. NEPA Compliance
As required by regulations of the Council on Environmental Quality
(40 CFR 1505.1 and 1507.3), agencies must issue regulations identifying
classes of actions generally requiring an Environmental Impact
Statement (EIS), generally not subject to the National Environmental
Policy Act (NEPA), and actions requiring an Environmental Assessment
(EA) of whether a full NEPA EIS is required or not. The Corps of
Engineers has adopted procedures generally implementing NEPA in
Sec. 230 of this chapter. The Programmatic Regulations consider on a
system-wide basis, the kinds of actions needed to implement the Plan,
and apply the principles of Sec. 230 to those activities. The
programmatic regulations identify certain actions which generally
require preparation of a NEPA document (either an Environmental Impact
Statement or an environmental assessment), or which are categorically
excluded from NEPA. Actions, such as the development or revision of
methods or guidance memoranda, are listed as categorically excluded.
Although the development or revision of a method or guidance memorandum
itself would not require a NEPA analysis, use of the method or guidance
memorandum would be analyzed under NEPA, as appropriate, in a decision
document such as a Project Implementation Report.
In general, the NEPA documentation for a particular project will be
included in the Project Implementation Report. For this reason, other
project-specific documents such as the Design Documentation Report,
Project Cooperation Agreement, Project Management Plan, and detailed
plans and specifications for the project are listed as categorically
excluded from NEPA documentation requirements. The Corps recognizes
that these documents may address elements of the project that have a
potential to significantly affect the quality of the human environment,
and fully intends that these effects should be analyzed and considered
as required by NEPA, but believes that this analysis and consideration
can be most effectively accomplished by including one comprehensive
NEPA analysis for each project in the Project Implementation Report,
rather than having piecemeal analyses in each of the supporting
documents.
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
[[Page 50550]]
specific quantity, timing, or distribution of water for a specific
component, it was not considered to be a ``major Federal action'' under
NEPA. It is important to note that NEPA would apply to the decision
made in a PIR for a specific project applying a guidance memorandum to
that project and determining that a certain quantity, timing or
distribution of water was required for the project.
Similar comments were directed at the interim goals. Some
commenters felt that the interim goals were not ``major Federal
actions'' affecting the environment under NEPA. These commenters
regarded the interim goals as evaluation and reporting tools. Other
commenters maintained that the interim goals are planning goals and
that as such should be subject to a full NEPA analysis. In proposing
these regulations, we determined that it was not appropriate at this
time to make a programmatic decision on precisely how NEPA applied to
interim goals because the interim goals have not yet been established
and since the extent to which interim goals will be used in planning is
still under consideration. When specific interim goals are proposed for
adoption, a decision can be made on exactly how NEPA applies. Moreover,
when the Programmatic Regulations are revised for the first time, the
Corps will consider whether interim goals should be listed as
categorically excluded, generally requiring an EIS, or generally
requiring an Environmental Assessment but not necessarily an EIS.
IV. Project Implementation Reports Approved Pursuant to Transition
Rule
Section 601(h)(3)(D) of WRDA 2000 establishes a transition rule for
Project Implementation Reports approved before the date of promulgation
of the programmatic regulations. This transition rule requires that the
Project Implementation Reports be consistent with the Plan. The
transition rule also requires that the preamble of the programmatic
regulations contain a statement concerning the consistency with the
programmatic regulations of the Project Implementation Reports approved
prior to the date of promulgation of those regulations.
A number of Project Implementation Reports are underway currently,
but no Project Implementation Reports have been approved to date. The
Project Implementation Report for the Southern Golden Gates Estates
project in Collier County is scheduled to be completed prior to
promulgation of the final rule. If the final Project Implementation
Report on Southern Golden Gates Estates is approved before the date of
promulgation of the final rule, then the preamble to the final rule
will contain a statement concerning the consistency of that Project
Implementation Report with the programmatic regulations.
V. Concurrence Requirements for This Regulation
The Secretary of the Interior and the Governor are required by
Section 601(h)(3)(B) of WRDA 2000 to provide the Secretary with a
written statement of concurrence or non-concurrence on the proposed
programmatic regulations within 180 days from the end of the public
comment period. This statute specifies that a failure to provide a
written statement of concurrence or nonconcurrence within the 180-day
time frame will be deemed as meeting the concurrency requirements. A
copy of any concurrency or nonconcurrency statement shall be made a
part of the administrative record and be referred to in the final
programmatic regulations. Any nonconcurrency statements shall
specifically detail the reason or reasons for the nonconcurrence.
Throughout the process of developing the proposed regulations, we have
maintained close coordination with the Department of the Interior and
the State of Florida. The Army will give good faith consideration to
the concurrence or non-concurrence statements of the Secretary of
Interior and the Governor. The final regulations will include a
reference to these statements before making a decision to issue final
regulations.
VI. Organization of the Proposed Rule
We have organized the proposed regulations under five major
headings. The first heading, General Provisions, provides the purpose
of the regulations, the applicability of the rule, definitions
pertaining to the regulations and other general information. The second
heading, Program Goals and Responsibilities, describes the goals and
purposes of the Plan; implementation principles; and implementation
responsibilities, consultation, and coordination. The remaining
headings were designed to be consistent with the content required by
section 601(h)(3)(C). These headings are: Comprehensive Everglades
Restoration Plan Implementation Processes; Incorporating New
Information into the Plan; and Ensuring Protection of the Natural
System and Water Availability Consistent with the Goals and Purposes of
the Plan.
VII. Public Comments Solicited
We are soliciting comments and suggestions from the public,
governmental organizations, and other interested parties on the
proposed regulations.
If you wish to comment on this proposed rule, you may submit your
comments and materials by any one of several methods (see ADDRESSES
section). If submitting comments by electronic format, please submit
them in ASCII file format or Word file format and avoid the use of
special characters and any form of encryption. Please include your name
and return e-mail address in your e-mail message. Please note that your
e-mail address will not be retained at the termination of the public
comment period.
VIII. Administrative Requirements
A. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
These regulations do not impose any information collection
requirements for which OMB approval under the Paperwork Reduction Act
is required. Thus, this action is not subject to the Paperwork
Reduction Act.
B. Executive Order 12866, as Amended
Under Executive Order 12866 (58 FR 51735, October 4, 1993), as
amended, we must determine whether the regulatory action is
``significant'' and therefore subject to review by the Office of
Management and Budget (OMB) and the requirements of the Executive
Order. The Executive Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, as amended, it has
been determined that these regulations are a ``significant regulatory
action'' in light of the provisions of paragraph (4) above. As such,
this action was submitted to OMB for review. Changes made in response
to OMB suggestions or recommendations are documented in the public
record.
[[Page 50551]]
C. Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the development of an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' These
regulations do not have significant federalism implications. The
proposed regulations define the relationships between the Federal and
State partners in implementing the Comprehensive Everglades Restoration
Plan. These proposed regulations are limited to implementation of the
Comprehensive Everglades Restoration Plan. It will not have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. Thus, Executive Order 13132 does not apply to
this rule. Nonetheless, the Corps of Engineers has consulted closely
with the State and local officials in developing the proposed rule.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996) generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice-and-comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations and small
governmental jurisdictions. For purposes of assessing the impacts of
the proposed rule on small entities, a small entity is defined as: (1)
A small business based on SBA size standards; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district, or special district with a population of less than 50,000;
and (3) a small organization that is any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field. After considering the economic impacts of the proposed rule on
small entities, we certify that this action will not have a significant
economic impact on a substantial number of small entities. The proposed
regulations only establish processes and governmental relationships
that will be used for implementation of the Comprehensive Everglades
Restoration Plan.
E. Unfunded Mandates Reform Act
We have determined in accordance with the Unfunded Mandates Reform
Act (2 U.S.C. 1501 et seq.):
(a) These regulations will not ``significantly or uniquely'' affect
small governments. A Small Government Agency Plan is not required.
Small governments will only be affected to the extent that they agree
to act as a non-Federal sponsor for implementation of projects for the
Comprehensive Everglades Restoration Plan. The proposed regulations do
not establish new or different requirements for non-Federal sponsors
for implementation of projects for the Comprehensive Everglades
Restoration Plan.
(b) The proposed regulations will not produce a Federal mandate of
$100 million or greater in any year, and therefore, does not constitute
a ``significant regulatory action'' under the Unfunded Mandates Reform
Act. The regulations define processes and relationships between the
Federal and State partners in implementing the Comprehensive Everglades
Restoration Plan. The regulations do not affect the cost sharing
requirements for non-Federal sponsors in implementing the Plan and
therefore, imposes no new obligations on State or local governments.
F. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (the NTTAA), Public Law 104-113, section 12(d) (15 U.S.C.
272 note), directs us to use voluntary consensus standards in our
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs us
to provide Congress, through OMB, explanations when we decide not to
use available and applicable voluntary consensus standards. These
regulations do not involve technical standards. Therefore, we did not
consider the use of any voluntary consensus standards.
G. Executive Order 13045
Executive Order 13045, entitled ``Protection of Children From
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997), applies to any rule that: (1) Was initiated after April 21,
1997, or for which a notice of proposed rulemaking was published after
April 21, 1998; (2) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (3) concerns an environmental
health or safety risk that we have reason to believe may have a
disproportionate effect on children. If the regulatory action meets all
three criteria, we must evaluate the environmental health or safety
effects of the planned rule on children, and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives that we considered. The regulations are not
subject to Executive Order 13045 because it is not an economically
significant regulatory action as defined by Executive Order 12866. The
regulations establish processes for the implementation of the
Comprehensive Everglades Restoration Plan and define the relationships
between the Federal and State partners for implementation. Furthermore,
they do not concern an environmental health or safety risk that we have
reason to believe may have a disproportionate effect on children.
H. Executive Order 13175
Under Executive Order 13175, we may not issue a regulation that has
substantial, direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of powers and responsibilities between the Federal
government and Indian tribes, and imposes substantial direct compliance
costs on those communities, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance cost incurred by the Tribal governments, or we consult with
those governments. If we comply by consulting, Executive Order 13175
requires us to provide the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of our prior consultation with
representatives of affected Tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13175 requires us to develop
an effective process permitting
[[Page 50552]]
elected officials and other representatives of Indian Tribal
governments ``to provide meaningful and timely input in the development
of regulatory policies on matters that significantly or uniquely affect
their communities.'' The proposed regulations are required by section
601(h)(3) of WRDA 2000. Additionally, the proposed rule does not impose
significant compliance costs on any Indian Tribes. The regulations
establish processes for the implementation of the Comprehensive
Everglades Restoration Plan and define the relationships between the
implementing entities. Accordingly, the requirements of section 3(b) of
Executive Order 13175 do not apply to these regulations. However, the
Corps of Engineers recognizes that two Indian Tribes, the Miccosukee
Tribe of Indians of Florida and the Seminole Tribe of Florida, have a
significant direct interest in the implementation of the CERP and the
framework for its implementation that will be established by these
programmatic regulations. We have thus consulted extensively with these
Tribes in the development of this proposed rule, and have included
requirements for continued consultation in all significant project
implementation components, including program-wide guidance memoranda,
Project Management Plans, Program Management Plans, Project
Implementation Reports, Project Operating Manuals, the System Operating
Manual, and the Master Implementation Sequencing Plan. These Tribes are
also included in the Leadership Group of RECOVER and participate in the
Project Delivery Teams and the South Florida Ecosystem Restoration Task
Force, which has played and will continue to play a consultative role
on many aspects of CERP implementation. Finally, Sec. 385.10(b)
includes a general requirement for consultation with the Tribes
``throughout the implementation process.''
I. Executive Order 12630
In accordance with Executive Order 12630 entitled ``Governmental
Actions and Interference with Constitutionally Protected Property
Rights,'' the proposed regulations will not effect a taking of private
property or otherwise have taking implications. A takings implication
assessment is not required. The regulations establish processes to be
used in implementing the Comprehensive Everglades Restoration Plan.
J. Civil Justice Reform
In accordance with Executive Order 12988, we have determined that
the proposed regulations do not unduly burden the judicial system and
meets the requirements of sections 3(a) and 3(b)(2) of the Order. The
regulations establish processes to be used in implementing the
Comprehensive Everglades Restoration Plan and defines the relationships
between the governmental entities that will implement the Plan.
K. Executive Order 13211
On May 18, 2001, the President issued an Executive Order (E.O.
13211) that applies to regulations that significantly affect energy
supply, distribution, and use. Executive Order 13211 requires agencies
to prepare Statements of Energy Effects when undertaking certain
actions. Because the proposed regulations are not expected to
significantly affect energy supplies, distribution, or use, this action
is not a significant energy action and no Statement of Energy Effects
is required.
L. Environmental Documentation
We have determined that these proposed regulations do not
constitute a major Federal action significantly affecting the quality
of the human environment. Therefore, environmental documentation under
the National Environmental Policy Act (NEPA) is not required for these
proposed regulations. The Corps of Engineers has prepared appropriate
environmental documentation, including a Programmatic Environmental
Impact Statement, for the Comprehensive Everglades Restoration Plan.
Moreover, the proposed regulations establish requirements for the
preparation of appropriate environmental documentation as part of the
implementation process.
List of Subjects in 33 CFR Part 385
Environmental protection, Flood control, Intergovernmental
relations, Natural resources, Water resources, Water supply.
Dated: July 19, 2002.
R.L. Brownlee,
Under Secretary of the Army, Acting Assistant Secretary of the Army
(Civil Works), Department of the Army.
For the reasons set forth in the preamble, the Army Corps of
Engineers proposes to add 33 CFR part 385 as follows:
Add part 385 to read as follows:
PART 385--PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES
RESTORATION PLAN
Subpart A--General Provisions
Sec.
385.1 Purpose of the programmatic regulations.
385.2 Applicability of the programmatic regulations.
385.3 Definitions.
385.4 Limitation on applicability of programmatic regulations.
385.5 CERP guidance memoranda.
385.6 Review of programmatic regulations.
385.7 Concurrency statements.
Subpart B--Program Goals and Responsibilities
385.8 Goals and purposes of the Comprehensive Everglades
Restoration Plan.
385.9 Implementation principles.
385.10 Implementation responsibilities, consultation, and
coordination.
Subpart C--CERP Implementation Processes
385.11 Implementation process for projects.
385.12 Pilot projects.
385.13 Projects implemented under additional program authority.
385.14 Incorporation of NEPA and related considerations into the
implementation process.
385.15 Consistency with requirements of the State of Florida.
385.16 Design agreements.
385.17 Project Delivery Team.
385.18 Public outreach.
385.19 Environmental and economic equity.
385.20 Restoration Coordination and Verification (RECOVER).
385.21 Quality control.
385.22 Independent scientific review.
385.23 Dispute resolution.
385.24 Project Management Plans.
385.25 Program Management Plans.
385.26 Project Implementation Reports.
385.27 Project Cooperation Agreements.
385.28 Operating Manuals.
385.29 Other project documents.
Subpart D--Incorporating New Information Into the Plan
385.30 Master Implementation Sequencing Plan.
385.31 Adaptive Management Program.
385.32 Comprehensive Plan Modification Report.
385.33 Revisions to models and analytical tools.
385.34 Changes to the Plan.
Subpart E--Ensuring Protection of the Natural System and Water
Availability Consistent With the Goals and Purposes of the Plan
385.35 Achievement of the benefits of the Plan.
385.36 Elimination or transfer of existing legal sources of water.
385.37 Flood protection.
385.38 Interim goals.
[[Page 50553]]
385.39 Evaluating progress on achieving other water-related needs
of the region provided for in the Plan.
385.40 Reports to Congress.
Appendix A--Illustrations to Part 385
Authority: Section 601, Pub. L. 106-541, 114 Stat. 2680; 10
U.S.C. 3013(g)(3); 33 U.S.C. 1 and 701; and 5 U.S.C. 301.
Subpart A--General Provisions
Sec. 385.1 Purpose of the programmatic regulations.
(a) The regulations in this part implement the provisions of
section 601(h)(3) of the Water Resources Development Act of 2000,
Public Law 106-541, 114 Stat. 2688 (hereinafter ``WRDA 2000''), which
was enacted on December 11, 2000.
(b) The purpose of these programmatic regulations is to establish
the processes necessary for implementing the Comprehensive Everglades
Restoration Plan (the Plan) to ensure that the goals and purposes of
the Plan are achieved. Some of these processes are project specific,
including, but not limited to, development of Project Implementation
Reports, project-specific performance measures, Project Cooperation
Agreements, plans and specifications, Design Documentation Reports,
Pilot Project Technical Data Reports, and Operating Manuals. Other
processes are of more general applicability, including, but not limited
to, development of program-wide guidance memoranda, system-wide
performance measures, interim goals, targets for monitoring progress on
other goals and purposes of the Plan, and the Master Implementation
Sequencing Plan. Taken together these documents establish the process
by which the programmatic regulations ensure that the restoration
success and other goals and purposes of the Plan are achieved. These
programmatic regulations also describe the relationship among the
various Federal, State, tribal, and local governmental entities charged
with Plan implementation responsibilities.
Sec. 385.2 Applicability of the programmatic regulations.
(a) This part applies to all activities conducted to implement the
Comprehensive Everglades Restoration Plan.
(b) Nothing in this part shall be interpreted to amend, alter,
diminish, or otherwise affect:
(1) The powers and duties provided under the ``Comprehensive
Everglades Restoration Plan Assurance of Project Benefits Agreement''
dated January 9, 2002 pursuant to section 601(h)(2) of WRDA 2000; or
(2) Any existing legal water rights of the United States, the State
of Florida, the Miccosukee Tribe of Indians of Florida, or the Seminole
Tribe of Florida, including rights under the compact among the Seminole
Tribe of Florida, the State, and the South Florida Water Management
District, defining the scope and use of water rights of the Seminole
Tribe of Florida, as codified by section 7 of the Seminole Indian Land
Claims Settlement Act of 1987 (25 U.S.C. 1772e).
(c) This part is intended to aid the internal management of the
implementing agencies and are not intended to create any right or
benefit enforceable at law by a party against the implementing agencies
or their officers. Nothing in this part shall create a right or
expectation to benefits or enhancements, temporary or permanent, in
third parties that are not specifically authorized by Congress in
Section 601 of WRDA 2000.
(d) Nothing in this part is intended to, or shall be interpreted
to, reserve or allocate water or to prescribe the process for reserving
or allocating water or for water management under Florida law. Nor is
this part intended to, nor shall it be interpreted to, prescribe any
process of Florida law.
Sec. 385.3 Definitions.
The following terms are defined for the purposes of this Part 385:
Adaptive management means the process of improving understandings
of the natural and human systems in the South Florida ecosystem,
specifically as these understandings pertain to the goals and purposes
of the Plan, and to seek continuous improvement of the Plan based upon
new information resulting from changed or unforeseen circumstances, new
scientific or technical information, new or updated models, or
information developed through the assessment principles contained in
the Plan, or as future authorized changes to the Plan are integrated
into the implementation of the Plan.
Assessment means the process whereby the actual performance of
implemented projects is measured and interpreted based on analyses of
information obtained from research, monitoring and modeling or other
relevant sources.
Central and Southern Florida (C&SF) Project means the project for
Central and Southern Florida authorized under the heading ``CENTRAL AND
SOUTHERN FLORIDA'' in section 203 of the Flood Control Act of 1948 (62
Stat. 1176) and any modification authorized by any other provision of
law, including section 601 of WRDA 2000.
Component means features of the Plan that include, but are not
limited to, storage reservoirs, aquifer storage and recovery
facilities, stormwater treatment areas, water reuse facilities, canals,
levees, pumps, water control structures, and seepage management
facilities, or the removal of canals, levees, pumps, and water control
structures.
Comprehensive Everglades Restoration Plan (CERP) means the plan
contained in the ``Final Integrated Feasibility Report and Programmatic
Environmental Impact Statement,'' dated April 1, 1999, as modified by
section 601 of WRDA 2000, or any subsequent modification authorized in
law.
Comprehensive Plan Modification Report means the report prepared by
the Corps of Engineers and the South Florida Management District for
approval by Congress of major modifications to the Plan that are needed
to ensure that the goals and purposes of the Plan are achieved. The
Comprehensive Plan Modification Report describes alternative plans
considered, the recommended modifications to the Plan, and other
economic, environmental, and engineering information, and includes the
appropriate NEPA document.
Concurrence means the issuance of a written statement of
concurrence, or non-concurrence or the failure to provide such a
written statement within a time frame prescribed by law or this part.
Consultation means a process to ensure meaningful and timely input
in the development of system-wide and project-level implementation
reports, manuals, plans, and other documents from Federal, State, and
local agencies, and the Miccosukee Tribe of Indians of Florida and the
Seminole Tribe of Florida.
Coordination means the formal exchange of information and views, by
letter, report, or other prescribed means, between the Corps of
Engineers and the non-Federal sponsor and another agency or tribe,
including but not limited to, the exchange of information and views
regarding the development of Project Implementation Reports.
Coordination activities are required by and in accordance with purposes
and procedures established by Federal policy (public law, executive
order, agency regulation, memorandum of agreement, and other documents
that memorialize policy of the Corps of Engineers).
Cost effective means the least costly way of attaining a given
level of output
[[Page 50554]]
or performance consistent with the goals and purposes of the Plan and
applicable laws.
Design Agreement means the agreement between the Corps of Engineers
and a non-Federal sponsor concerning cost sharing for activities
related to planning, engineering, design, and other activities needed
to implement the Plan.
Design Documentation Report means the document that describes the
results of investigations, analyses, and calculations made during the
detailed design phase that provides the technical basis for the plans
and specifications.
Dispute means any disagreement between the agencies or tribes
associated with implementation of the Plan that cannot be resolved by
the members of a Project Delivery Team or RECOVER and that is elevated
to decision makers at the respective agencies or tribes.
District Engineer means the District Engineer of the Corps of
Engineers, Jacksonville District.
Division Engineer means the Division Engineer of the Corps of
Engineers, South Atlantic Division.
Drought contingency plan refers to the plan required by
Sec. 222.5(i)(5) of this chapter and described in implementing Engineer
Regulation ER 1110-2-1941 Drought Contingency Plans, and means a plan
contained within an Operating Manual that describes procedures for
dealing with drought situations that affect management decisions for
operating projects.
Environmental and economic equity means the fair treatment of all
persons regardless of race, color, creed, or national origin, including
environmental justice, and the provision of economic opportunities for
small business concerns controlled by socially and economically
disadvantaged individuals, including individuals with limited English
proficiency in the implementation of the Plan.
Environmental justice means identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of a Federal agency's programs, policies, and
activities on minority and low-income populations.
Evaluation means the process whereby the performance of plans and
designs relative to desired objectives is forecast through predictive
modeling.
Expected performance level means the projected level of benefits to
the natural system and human environment described in the Plan.
Governor means the Governor of the State of Florida.
Improved or new flood protection benefits mean an increased or new
level of service for flood protection that is identified in a Project
Implementation Report and approved as a purpose of the project.
Independent scientific review means the process established
pursuant to section 601(j) of WRDA 2000, or other process that is
independent of the Corps of Engineers, the South Florida Water
Management District, and other entities involved in the implementation
of the Plan, to review and validate the scientific and technical
processes and information developed for the Plan.
Independent Technical Review Team means the team established by the
Corps of Engineers and the non-Federal sponsor, to ensure quality
control of documents and products produced by the Project Delivery Team
through periodic technical reviews.
Indicator means an element or component of the natural or human
systems that is expected to be influenced by the Plan, and has been
selected to be monitored as representative of a class of system
responses.
Individual features of the Plan means a feature of the Plan related
to and limited to one specific project of the Plan.
Interim goal is a means by which success of restoration, as defined
for purposes of this part, may be evaluated throughout the
implementation process.
Last added increment means the evaluation of a project as the last
project to be added to a system of projects. For the purposes of the
Plan, this means analyzing a proposed project assuming that all the
other components of the Plan have been implemented.
Level of service for flood protection means the water level or flow
duration and frequency, which the Central and Southern Project and
other water management systems in the South Florida ecosystem provide
in order to prevent flooding of the related surface water basins.
Master Implementation Sequencing Plan means the document that
describes the sequencing and scheduling of the pilot projects,
individual projects, and program-level activities that comprise the
Plan.
Mediation means a non-binding dispute resolution process designed
to assist the disputing parties to resolve the dispute. In mediation,
the parties mutually select a neutral and impartial third party to
facilitate the negotiations.
Monitoring means the systematic process of collecting data designed
to show the status, trends, and relationships of elements of natural
and human systems at predetermined locations and times.
Natural system means all land and water managed by the Federal
government or the State within the South Florida ecosystem and includes
water conservation areas; sovereign submerged land; Everglades National
Park; Biscayne National Park; Big Cypress National Preserve; other
Federal or State (including a political subdivision of a State) land
that is designated and managed for conservation purposes; and any
tribal land that is designated and managed for conservation purposes,
as approved by the tribe.
Next added increment means the evaluation of a project as the next
project to be added to a system of projects already implemented.
Non-Federal sponsor means a legally constituted public body that
has full authority and capability to perform the terms of the Project
Cooperation Agreement and the ability to pay damages, if necessary, in
the event of failure to perform, pursuant to Section 221 of the Flood
Control Act of 1970, as amended (42 U.S.C. 1962d-5b).
Operating Manuals means the set of documents that describe how the
projects of the Plan and the Central and Southern Florida Project are
to be operated to ensure that the goals and purposes of the Plan are
achieved. Operating Manuals include the System Operating Manual and
Project Operating Manuals. Operating Manuals may include water control
plans, regulation schedules, and operating criteria for project and/or
system regulations as well as additional provisions to collect,
analyze, and disseminate basic data in order to operate projects to
ensure that the goals and purposes of the Plan are achieved.
Outreach means activities undertaken to inform the public about the
Plan and activities associated with implementation of the Plan and to
involve the public in the decision-making process for implementation of
the Plan.
Performance measure means an indicator and the target that has been
set for that indicator.
Pilot project means a project undertaken to better determine the
technical viability of a component in the Plan prior to full-scale
implementation of that component.
Pilot Project Technical Data Report means the report that documents
the findings and conclusions from the implementation and testing phases
of a pilot project.
Plan means the Comprehensive Everglades Restoration Plan contained
[[Page 50555]]
in the ``Final Integrated Feasibility Report and Programmatic
Environmental Impact Statement'' dated April 1, 1999, as modified by
section 601 of WRDA 2000, or any subsequent modification authorized in
law.
Plans and Specifications means the information required to bid and
construct the project detailed in the Project Implementation Report and
documented in the Design Documentation Report.
Pre-CERP baseline means the hydrologic conditions in the South
Florida ecosystem that existed on December 11, 2000, the date of
enactment of section 601 of WRDA 2000, accounting for natural
variations and including existing legal sources of water. The pre-CERP
baseline will be established through modeling using a multi-year period
of record and will take into account such things as land use,
population, water demand, and operations of the Central and Southern
Florida Project.
Program-level activity means those tasks, activities, or products
that support more than one project or that are Plan-wide in scope.
Program Management Plan means a document that defines the
activities, tasks, and responsibilities for completing program-level
activities.
Project means a component or group of components of the Plan that
are implemented together to provide functional benefits towards
achieving the goals and purposes of the Plan.
Project Cooperation Agreement (PCA) means the legal agreement
between the Department of the Army and a non-Federal sponsor that is
executed prior to project construction. The Project Cooperation
Agreement describes the financial, legal, and other responsibilities
for construction, operation, maintenance, repair, rehabilitation, and
replacement of a project.
Project Delivery Team means the inter-agency, interdisciplinary
group led by the Corps of Engineers and the non-Federal sponsor that
develops the products necessary to implement projects or program-level
activities.
Project Implementation Report (PIR) means the report prepared by
the Corps of Engineers and the non-Federal sponsor pursuant to section
601(h)(4)(A) of WRDA 2000 and described in Section 10.3 of the ``Final
Integrated Feasibility Report and Programmatic Environmental Impact
Statement,'' dated April 1, 1999.
Project Management Plan means a document that establishes the
project's scope, requirements and technical performance requirements,
including various functions and quality criteria that will be used to
produce and deliver the products that compromise the project.
Project Operating Manual means the manual that describes the
operating criteria for a project or group of projects of the Plan. The
Project Operating Manual is considered a supplement to the System
Operating Manual and presents more detailed information on the
operation of a specific project or group of projects.
Public means any individuals, organizations, or non-Federal unit of
government that might be affected by or interested in the
implementation of the Plan. The public includes regional, State, and
local government entities and officials, public and private
organizations, Native American (Indian) tribes, and individuals.
Quality control plan means the plan prepared in accordance with
applicable regulations or policies of the Corps of Engineers that
describes the procedures that will be employed to insure compliance
with all technical and policy requirements of the Corps of Engineers
and the non-Federal sponsor.
Reservation of water for the natural system means the actions taken
by the South Florida Water Management District or the Florida
Department of Environmental Protection, pursuant to Florida law, to
legally reserve water from allocation for consumptive use for the
protection of fish and wildlife.
Restoration for the purposes of this part means to bring about the
level of recovery and protection to the South Florida ecosystem
described in the Plan as approved by Congress in Section 601 of the
Water Resources Development Act of 2000, with such modifications as
Congress may provide for in the future. This is accomplished by
increasing water storage and water supply, improving water quality, and
increasing the connectivity of the natural system so that the ecosystem
once again exhibits and sustains essential physical and ecological
characteristics that defined the pre-drainage South Florida ecosystem,
including establishing more natural hydropatterns, including wet and
dry season cycles, natural recession rates, surface water depth
patterns, and, in coastal areas, salinity and mixing patterns for the
natural system. These actions are a precursor to achieving anticipated
ecological benefits, including improvements to native flora and fauna;
restoring the presence of key species in historic habitats; and
promoting patterns of plant communities that form a gradient from
aquatic communities to uplands. Restoration for the purpose of this
regulation also incorporates a process of adaptive management to seek
continuous improvement of the Plan based upon new information resulting
from changed or unforeseen circumstances, new scientific or technical
information, or information developed through the adaptive assessment
principles contained in the Plan, or future authorized changes to the
Plan integrated into the implementation of the Plan.
Restoration Coordination and Verification (RECOVER) means the
interagency and interdisciplinary scientific and technical team,
established by the Corps of Engineers and the South Florida Water
Management District to assess, evaluate, and integrate the projects of
the Plan with the overall goal of ensuring that the system-wide goals
and purposes of the Plan are achieved.
Secretary means the Secretary of the Army, unless indicated
otherwise. The Secretary of the Army acts through the Assistant
Secretary of the Army (Civil Works) with respect to the Army's civil
works program pursuant to 10 U.S.C. 3016.
South Florida ecosystem means the area consisting of the land and
water within the boundary of the South Florida Water Management
District in effect on July 1, 1999 and includes the Everglades, the
Florida Keys, and the contiguous near-shore coastal water of South
Florida.
South Florida Ecosystem Restoration Task Force means the task force
established pursuant to section 528(f) of the Water Resources
Development Act of 1996 (110 Stat. 3770), including the Florida-based
working group and any advisory bodies established by the task force.
South Florida Water Management District (SFWMD) means the public
body constituted by the State of Florida pursuant to Chapter 373.069 of
the Florida Statutes.
State means the State of Florida.
System Operating Manual means the Operating Manual that provides an
integrated system-wide framework for operating all of the implemented
projects of the Plan and the C&SF Project.
System-wide means pertaining to the Central and Southern Florida
Project or the South Florida ecosystem, as a whole.
Target means a measure of a level of output of an indicator that is
expected and desired during or following the implementation of the
Plan.
Technical review means the process that confirms the proper
selection and application of established criteria,
[[Page 50556]]
regulations, laws, codes, principles, and professional procedures to
ensure a quality product. Technical review also confirms the
constructability and effectiveness of the product and the use of
clearly justified and valid assumptions and methodologies.
Water budget means an account of all water inflows, outflows, and
changes in storage over a period of time.
Water made available means water generated pursuant to the
implementation of the components of the Plan and operation of the C&SF
Project over and above water that was available on the date of
enactment of WRDA 2000.
Without CERP condition means the conditions predicted (forecast) in
the South Florida ecosystem without implementation of any of the
projects of the Plan.
WRDA 2000 means the Water Resources Development Act of 2000, Public
Law 106-541, which was enacted on December 11, 2000.
Sec. 385.4 Limitation on applicability of programmatic regulations.
In accordance with section 601(h)(3)(c)(ii) of WRDA 2000, this part
expressly prohibits any requirement for concurrence by the Secretary of
the Interior or the Governor on Project Implementation Reports, Project
Cooperation Agreements, Operating Manuals for individual projects
undertaken in the Plan, and any other documents relating to the
development, implementation, and management of individual features of
the Plan, unless such concurrence is provided for in other Federal or
State laws.
Sec. 385.5 CERP guidance memoranda.
(a) General. (1) Technical matters and guidance for internal
management of Corps of Engineers personnel during Plan implementation
will be issued in the normal form of Engineer Regulations, Circulars,
Manuals, or Pamphlets, or other appropriate form of guidance.
(2) Guidance on the following six program-wide subjects will be
developed in accordance with paragraphs (b) and (c) of this section:
(i) General format and content of Project Implementation Reports
(Sec. 385.26(a));
(ii) Instructions for Project Delivery Team evaluation of
alternatives developed for Project Implementation Reports, their cost
effectiveness and impacts (Sec. 385.26(b));
(iii) Guidance for system-wide evaluation of Project Implementation
Report alternatives by RECOVER (Sec. 385.26(c));
(iv) General content of operating manuals (Sec. 385.28(a));
(v) General directions for the conduct of the assessment activities
of RECOVER (Sec. 385.31(b)); and
(vi) Instructions relevant to Project Implementation Reports for
identifying the appropriate quantity, timing, and distribution of water
dedicated and managed for the natural system (Sec. 385.35(b)).
(b) Special processes for development of six Program-wide guidance
memoranda. The Corps of Engineers and the South Florida Water
Management District shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole
Tribe of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, develop the six guidance
memoranda described in paragraph (a) of this section. In addition to
consultation with the South Florida Ecosystem Restoration 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 matters related to these guidance memoranda, as the Task
Force from time to time may request.
(1) Guidance memoranda shall be consistent with this part,
applicable law, and achieving the goals and purposes of the Plan.
(2) The public shall be given notice of the guidance memoranda
through the issuance of a notice of availability in the Federal
Register and be afforded an opportunity to comment on the proposed
guidance memoranda.
(3) Completed guidance memoranda shall be made available to the
public.
(4) Any guidance memorandum specifically referenced in this part
shall be developed not later than six months after the effective date
of the final rule published in the Federal Register or December 31,
2003, whichever is sooner.
(5) Concurrence by the Secretary of the Interior and the Governor
shall be required on the six guidance memoranda described in paragraph
(a) of this section. Within 180 days from the development of the
proposed guidance memorandum, or such shorter period that the Secretary
of the Interior and the Governor may agree to, the Secretary of the
Interior and the Governor may provide the Secretary with a written
statement of concurrence or nonconcurrence with the proposed guidance
memorandum. A failure to provide a written statement of concurrence or
nonconcurrence within such time frame shall be deemed as meeting the
concurrency requirements of this section. Any nonconcurrency statement
shall specifically detail the reason or reasons for the non-
concurrence. The Corps of Engineers and the South Florida Water
Management District shall give good faith consideration to any
nonconcurrency statement, and take the reason or reasons for the
nonconcurrence into account in the final decision to promulgate or
revise the guidance memoranda specified in this section. If the six
guidance memoranda described in paragraph (a) of this section create a
special procedure for any individual Project Implementation Report, a
specific Project Cooperation Agreement, an Operating Manual for a
specific project component, or any other document relating to the
development, implementation, and management of one specific individual
feature of the Plan, this section does not require concurrence on that
special procedure. In lieu of concurrence on such a special procedure,
the Corps of Engineers and the South Florida Water Management District
shall consult with the Department of the Interior and the State of
Florida.
(c) Revisions to six Program-wide guidance memoranda. The Corps of
Engineers and the South Florida Water Management District may, whenever
they believe it is necessary, and in consultation with the Department
of the Interior and the State, 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, revise
guidance memoranda that have been completed. Such revisions shall be
developed consistent with the provisions of paragraph (a) of this
section. Concurrence of the Secretary of the Interior and the Governor
shall be required for revisions to those guidance memoranda to which
initial concurrence was required.
(d) Other guidance. Nothing in this part shall be considered or
construed to preclude the ability of the Corps of Engineers, the South
Florida Water Management District, and other non-Federal sponsors from
issuing other guidance or policy to assist in implementing the Plan.
Any such guidance or policy shall be consistent with applicable law and
regulations.
[[Page 50557]]
Sec. 385.6 Review of programmatic regulations.
(a) The Secretary shall review, and if necessary revise, the
programmatic regulations in this part at least every five years from
their date of promulgation. In addition, the Secretary may review and
revise the programmatic regulations whenever the Secretary believes
that such review and revision is necessary to attain the goals and
purposes of the Plan. The Secretary shall place appropriate notice in
the Federal Register upon initiating review of the programmatic
regulations.
(b) Upon completing the review of the programmatic regulations in
this part, the Secretary shall promulgate any revisions to the
programmatic regulations after notice and opportunity for public
comment in accordance with applicable law, with the concurrence of the
Governor and the Secretary of the Interior, and in consultation with
the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of
Florida, the Administrator of the Environmental Protection Agency, the
Secretary of Commerce, and other Federal, State, and local agencies.
(c) Within 180 days from the end of the public comment period on
the proposed revisions to the programmatic regulations in this part, or
such shorter period that the Secretary of the Interior and Governor may
agree to, the Secretary of the Interior and the Governor may provide
the Secretary with a written statement of concurrence or nonconcurrence
with the proposed revisions. A failure to provide a written statement
of concurrence or nonconcurrence within such time frame shall be deemed
as meeting the concurrency requirements of paragraph (b) of this
section. A copy of any concurrency or nonconcurrency statements shall
be made a part of the administrative record and referenced in the final
revised programmatic regulations. Any nonconcurrency statement shall
specifically detail the reason or reasons for the nonconcurrence. The
Secretary shall give good faith consideration to any nonconcurrency
statement, and take the reason or reasons for the nonconcurrence into
account in the final decision to promulgate or revise the programmatic
regulations.
Sec. 385.7 Concurrency statements.
Pursuant to section 601(h)(3)(B) of WRDA 2000, a copy of any
concurrency or nonconcurrency statements by the Secretary of the
Interior or the Governor to the Secretary shall be made a part of the
administrative record for this part.
Subpart B--Program Goals and Responsibilities
Sec. 385.8 Goals and purposes of the Comprehensive Everglades
Restoration Plan.
(a) The Comprehensive Everglades Restoration Plan is a framework
for modifications and operational changes to the Central and Southern
Florida Project that are needed to restore, preserve, and protect the
South Florida ecosystem while providing for other water-related needs
of the region, including water supply and flood protection. The
overarching objective of the Plan is the restoration, preservation, and
protection of the South Florida ecosystem while providing for other
water-related needs of the region, including water supply and flood
protection.
(b) The Corps of Engineers and non-Federal sponsors shall, in
consultation with the Department of the Interior, the Environmental
Protection Agency, the Department of Commerce, the Miccosukee Tribe of
Indians of Florida, the Seminole Tribe of Florida, the Florida
Department of Environmental Protection, and other Federal, State, and
local agencies, implement the Plan to ensure the protection of water
quality in, the reduction of the loss of fresh water from, and the
improvement of the environment of the South Florida Ecosystem and to
achieve and maintain the benefits to the natural system and human
environment described in the Plan, and required pursuant to section 601
of WRDA 2000 for as long as the project is authorized.
(c) The goal of the Plan is to provide the quantity, quality,
timing, and distribution of water necessary to achieve the goals and
purposes of the Plan. The Corps of Engineers and non-Federal sponsors
shall implement the projects of the Plan with the goal of achieving the
expected performance level of the Plan and to seek continuous
improvement of the Plan based upon new information resulting from
changed or unforeseen circumstances, new scientific or technical
information, new or updated models, or information developed through
the adaptive assessment principles contained in the Plan, or future
authorized changes to the Plan integrated into the implementation of
the Plan.
Sec. 385.9 Implementation principles.
The Corps of Engineers and the South Florida Water Management
District and other non-Federal sponsors shall, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Miccosukee Tribe of Indians of Florida, the
Seminole Tribe of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, conduct
activities, including program-level activities, necessary to implement
the projects of the Plan. Such activities shall be conducted as part of
an integrated implementation program, in accordance with this part, and
based on the following principles:
(a) Individual projects shall be formulated based on their
contribution to the system-wide goals and purposes of the Plan and the
achievement of the expected performance level of the Plan, as well as
on their ability to provide benefits without regard to projects not yet
implemented.
(b) Interim goals shall be established pursuant to this part to
provide a means for evaluating restoration success at specific time
intervals during implementation. Progress on achieving other water-
related needs of the region as provided for in the Plan shall also be
evaluated at specific time intervals during implementation.
(c) Endorsement of the Plan as a restoration framework is not
intended as a constraint on innovation in its implementation through
the adaptive management process. Continuous improvement of the Plan
shall be sought to ensure that new information resulting from changed
or unforeseen circumstances, new scientific or technical information,
or information developed through the adaptive assessment principles
contained in the Plan, or future authorized changes to the Plan are
integrated into the implementation of the Plan. The adaptive management
process provides a means for analyzing performance of the Plan and
assessing progress towards meeting the goals and purposes of the Plan
as well as a basis for improving the performance of the Plan. Improving
the performance of the Plan means either enhancing the benefits of the
Plan in terms of restoration of the natural system while providing for
other water-related needs of the region, including water supply and
flood protection, or delivering Plan benefits at reduced cost.
Sec. 385.10 Implementation responsibilities, consultation, and
coordination.
(a) Implementing agencies. Implementation of the projects of the
Plan shall be the responsibility of the Corps of Engineers and the non-
Federal sponsors as the implementing agencies for projects or program-
level activities.
(b) Consultation. (1) Consultation with Indian Tribes. (i) In
addition to the provision for consultation with Native
[[Page 50558]]
American Tribes provided for by Executive Order, the Corps of Engineers
and non-Federal sponsors shall consult with and seek advise 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.
(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 Federal and State laws, such as
the Fish and Wildlife Coordination Act, the National Environmental
Policy Act, the Clean Air Act, the Clean Water Act, the National
Historic Preservation 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. 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
consulted will consult in a timely and 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 may
consider relevant considerations such as sequencing of projects,
planning, contracting and funding, and any factor listed for setting
time limits for consulting under NEPA (40 CFR Sec. 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 addition, the agencies 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 to consult with, 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, its working group, and its other
advisory bodies play in the discussion and resolution of issues related
to the South Florida ecosystem. The Department of the Army and the
South Florida Water Management District regularly brief the Task Force
on CERP issues and regularly serve on the working group and other
advisory bodies. It is the intent of the Department of the Army that
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 requested 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. Providing information to, or
consulting with, the Task Force usually will occur on a case-by-case
basis.
Subpart C--CERP Implementation Processes
Sec. 385.11 Implementation process for projects.
Generally, the Corps of Engineers and non-Federal sponsors shall
develop and implement projects in accordance with a process that is
shown in figure 1 in Appendix A of this part. This process covers
planning, design, construction and operation of the projects. Typical
steps in this process involve:
(a) Project Management Plan. The purpose of the Project Management
Plan is to establish the project's initial scope, schedule, costs,
funding requirements, and technical performance requirements, including
the various functional areas performance and quality criteria that
shall be used to produce and deliver the products that comprise the
project.
(b) Project Implementation Report. The Project Implementation
Report provides information on plan formulation and evaluation,
engineering and design, economic benefits and estimated costs, and
environmental effects to bridge the gap between the conceptual design
included in the Plan and the detailed design necessary to ready a
project for construction.
(c) Design Documentation Report. The Design Documentation Report
describes the results of investigations, analyses and calculations made
during the detailed design phase and provides the technical basis for
the plans and specifications.
(d) Plans and Specifications. Plans and Specifications contain
information required to bid and construct the projects detailed in the
Project Implementation Report and documented in the Design
Documentation Report.
(e) Real estate acquisition. The non-Federal sponsor is primarily
responsible for acquisition of lands, easements, and rights-of-way
needed for the project.
(f) Construction. This phase is the actual construction of a
project's components and includes an interim
[[Page 50559]]
operation and monitoring period to ensure that the project operates as
designed.
(g) Operation and monitoring. After the project has been
constructed, it is operated in accordance with the Operating Manuals.
Monitoring is also conducted to determine the effectiveness of the
project and to provide information that will be used in adaptive
management.
Sec. 385.12 Pilot projects.
(a) The Plan includes pilot projects to address uncertainties
associated with certain components such as aquifer storage and
recovery, in-ground reservoir technology, seepage management, and
wastewater reuse. The purpose of the pilot projects is to develop
information necessary to determine the technical viability of these
components prior to development of a Project Implementation Report.
(b) Prior to initiating activities on a pilot project, the Corps of
Engineers and the non-Federal sponsor shall develop a Project
Management Plan as described in Sec. 385.24.
(c) Project Implementation Reports shall not be necessary for pilot
projects. Prior to proceeding with implementation, the Corps of
Engineers and the non-Federal sponsor shall prepare a Pilot Project
Design Report.
(1) The Pilot Project Design Report shall contain the technical
information necessary to construct the pilot project including
engineering and design, cost estimates, real estate analyses, and
appropriate NEPA analyses.
(2) The Pilot Project Design Report shall include a detailed
operational testing and monitoring plan to develop information to
assist in determining the technical viability of certain components
prior to development of a Project Implementation Report.
(3) In accordance with Sec. 385.18, the Corps of Engineers and the
non-Federal sponsor shall provide the public with opportunities to
review and comment on the draft Pilot Project Design Report.
(4) The Corps of Engineers and the non-Federal sponsor shall
approve the final Pilot Project Design Report in accordance with
applicable law.
(d) Upon completion of operational testing and monitoring, the
Corps of Engineers and the non-Federal sponsor shall, in consultation
with the Department of the Interior, the Environmental Protection
Agency, the Department of Commerce, the Miccosukee Tribe of Indians of
Florida, the Seminole Tribe of Florida, the Florida Department of
Environmental Protection, and other Federal, State, and local agencies,
prepare a Pilot Project Technical Data Report, documenting the findings
and conclusions from the implementation and testing of the pilot
project. The Corps of Engineers and the non-Federal sponsor shall also
consult with the South Florida Ecosystem Restoration Task Force in
preparing the report.
(1) As appropriate, RECOVER shall conduct activities to support the
preparation of the Pilot Project Technical Data Report.
(2) The independent scientific review panel established pursuant to
Sec. 385.22 shall be given the opportunity to review the draft Pilot
Project Technical Data Report.
(3) In accordance with Sec. 385.18, the Corps of Engineers and the
non-Federal sponsor shall provide the public with opportunities to
review and comment on the draft Pilot Project Technical Data Report.
(4) The Corps of Engineers and the non-Federal sponsor shall
prepare and make public the final Pilot Project Technical Data Report.
Sec. 385.13 Projects implemented under additional program authority.
(a) To expedite implementation of the Plan, the Corps of Engineers
and non-Federal sponsors may implement projects under the authority of
section 601(c) of WRDA 2000 that are described in the Plan and that
will produce a substantial benefit to the restoration, preservation and
protection of the South Florida ecosystem.
(b) Each project implemented under the authority of section 601(c)
of WRDA 2000 shall:
(1) In general follow the process described in Sec. 385.11;
(2) Not be implemented until a Project Implementation Report is
prepared and approved in accordance with Sec. 385.26; and
(3) Not exceed a total cost of $25,000,000.
(c) The total aggregate cost of all projects implemented under the
additional program authority shall not exceed $206,000,000.
Sec. 385.14 Incorporation of NEPA and related considerations into the
implementation process.
(a) In implementing the CERP the Corps of Engineers shall comply
with the requirements of NEPA (42 U.S.C. 4371, et seq.) and applicable
implementing regulations.
(b) Actions normally requiring an Environmental Impact Statement
(EIS). In addition to the actions listed in Sec. 230.6 of this chapter,
actions normally requiring an EIS are:
(1) Comprehensive Plan Modification Report;
(2) System Operating Manual or significant changes to the System
Operating Manual;
(3) Project Implementation Reports, including the draft Project
Operating Manual when included in the Project Implementation Report;
(4) Pilot Project Design Report, including the detailed operational
testing and monitoring plan;
(5) Proposed major changes in operation and/or maintenance of
completed projects; and
(6) Project Operating Manuals for any project where a Project
Implementation Report is not prepared.
(c) The District Engineer may consider the use of an environmental
assessment (EA) on the types of actions described in paragraph (b) of
this section if early studies and coordination show that a particular
action, considered individually and cumulatively, is not likely to have
a significant impact on the quality of the human environment.
(d) Actions normally requiring an EA. In addition to the actions
listed in Sec. 230.7 of this chapter, actions normally requiring an EA,
but not necessarily an EIS, are:
(1) Modifications to Project Operating Manuals for projects or
groups of projects, not expected to be a major change in operation and/
or maintenance; and
(2) Changes in the System Operating Manual not expected to be a
major change in operation and/or maintenance.
(e) Categorical exclusions. In addition to the activities listed in
Sec. 230.9 of this chapter, the following actions, when considered
individually and cumulatively, do not have significant effects on the
quality of the human environment and are categorically excluded from
NEPA documentation.
(1) Design Documentation Reports;
(2) Project Cooperation Agreements;
(3) Project Management Plans;
(4) Plans and Specifications for projects;
(5) Pilot Project Technical Data Reports;
(6) Assessment reports prepared for the adaptive management
program;
(7) Minor technical changes to the System Operating Manual or
Project Operating Manuals, not significant enough to warrant notice and
opportunity for public comment under section 601(h)(4)(B)(ii) of WRDA
2000;
(8) Development or revision of guidance memoranda or methods such
as adaptive management, monitoring, plan formulation and evaluation,
quantification of water needed for the natural system or protection of
existing uses, methods of determining levels of
[[Page 50560]]
flood protection, and similar guidance memoranda or methods; and
(9) Deviations from Operating Manuals for emergencies and unplanned
minor deviations as described in applicable Corps of Engineers
regulations, including Sec. 222.5(f)(4) and Sec. 222.5(i)(5) of this
chapter, and Engineer Regulation ER 1110-2-8156 ``Preparation of Water
Control Manuals.''
(f) Even though an EA or EIS is not indicated for a Federal action
because of a ``categorical exclusion,'' that fact does not exempt the
action from compliance with any other applicable Federal, State, or
Tribal law, including but not limited to, the Endangered Species Act,
the Fish and Wildlife Coordination Act, the National Historic
Preservation Act, the Clean Water Act, Clean Air Act, and the Marine
Mammal Protection Act.
Sec. 385.15 Consistency with requirements of the State of Florida.
The State of Florida has established procedures, requirements, and
approvals that are needed before the State or the South Florida Water
Management District can participate as the non-Federal sponsor for
Comprehensive Everglades Restoration Plan projects. Project
Implementation Reports shall include such information and analyses as
are necessary to facilitate review and approval of projects by the non-
Federal sponsor and the State pursuant to the requirements of Florida
law.
Sec. 385.16 Design agreements.
(a) The Corps of Engineers shall execute a design agreement with
each non-Federal sponsor of the projects of the Plan prior to
initiation of design activities with that non-Federal sponsor.
(b) Any procedures, guidance, or documents developed by the Corps
of Engineers and the non-Federal sponsor pursuant to a design agreement
shall be consistent with this part.
Sec. 385.17 Project Delivery Team.
(a) The Corps of Engineers and the non-Federal sponsor shall assign
individual project managers to be responsible for the successful
implementation of projects, and to ensure that projects are planned,
designed, and constructed consistent with the design agreement, Project
Management Plan, and achieving the goals and purposes of the Plan.
(b) The Corps of Engineers and the non-Federal sponsor shall form a
Project Delivery Team to develop the products necessary to implement
the project. Project Delivery Teams shall be interdisciplinary in
composition.
(c) It shall be the intent of the Corps of Engineers and the South
Florida Water Management District to encourage the participation of
other Federal, State, and local agencies and the Miccosukee Tribe of
Indians of Florida and the Seminole Tribe of Florida on Project
Delivery Teams, and to use the expertise of other agencies on Project
Delivery Teams to ensure that information developed by the Project
Delivery Team is shared at the earliest possible time in the
implementation process. In forming the Project Delivery Team, the Corps
of Engineers and the non-Federal sponsor shall request that the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Miccosukee Tribe of Indians of Florida, the
Seminole Tribe of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies participate on
the Project Delivery Team.
(1) In general, participation on the Project Delivery Team shall be
the financial responsibility of the participating agency or tribe.
However, the Corps of Engineers shall provide funding for the U.S. Fish
and Wildlife Service to prepare Fish and Wildlife Coordination Act
Reports, as required by applicable law, regulation, or agency
procedures.
(2) Participation by an agency or tribe on the Project Delivery
Team shall not be considered or construed to be a substitute for
consultation or coordination required by applicable law or this part.
(d) Documents, work products, or recommendations prepared by the
Project Delivery Team shall not be self-executing, but shall be
provided to the Corps of Engineers and the non-Federal sponsor for
review, discussion, revision, and/or approval, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Seminole Tribe of Florida, the Miccosukee
Tribe of Indians of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies.
Sec. 385.18 Public outreach.
(a) Goals. (1) The goal of public outreach is to open and maintain
channels of communication with the public in order to:
(i) Provide information about proposed activities to the public;
(ii) Make the public's desires, needs, and concerns known to
decision-makers before decisions are reached; and
(iii) Consider the public's views in reaching decisions.
(2) In carrying out implementation activities for the Plan, the
Corps of Engineers and the non-Federal sponsor shall undertake outreach
activities to:
(i) Increase general public awareness for the Plan;
(ii) Involve interested groups and interested communities in the
decision-making process and incorporate public values into decisions;
(iii) Better serve minority communities and traditionally under
served communities, persons with limited English proficiency, and
socially and economically disadvantaged individuals;
(iv) Improve the substantive quality of decisions as a result of
public participation; and
(v) Reduce conflict among interested and affected parties by
building agreement on solutions to emerging issues.
(b) General Requirements. (1) The Corps of Engineers and the non-
Federal sponsors shall provide a transparent, publicly accessible
process through which scientific and technical information is used in
the development of policy decisions.
(2) The Corps of Engineers and the non-Federal sponsor shall
develop and conduct outreach activities for each project or program-
level activity in order to provide information to the public and to
provide opportunities for involvement by the public.
(3) Project Management Plans and Program Management Plans shall
include information concerning outreach activities to be undertaken
during the implementation of the project or activity.
(4) In general, Project Delivery Team meetings and RECOVER meetings
shall be open to attendance by the public. The public shall be notified
in advance of these meetings through e-mail, posting on a web site, or
other appropriate means. The public shall be given the opportunity to
comment at such meetings.
(5) The Corps of Engineers and the non-Federal sponsor shall
provide opportunities for the public to review and comment on draft
documents.
(c) Outreach to socially and economically disadvantaged
communities.
(1) The Corps of Engineers and the non-Federal sponsor shall
develop and conduct public outreach activities to ensure that socially
and economically disadvantaged individuals, including individuals with
limited English proficiency, are provided opportunities to review and
comment during implementation of the Plan.
[[Page 50561]]
(2) Project Management Plans and Program Management Plans shall
include information concerning outreach activities to socially and
economically disadvantaged communities, including individuals of
limited English proficiency to be undertaken during the implementation
of the project or activity.
(3) The Corps of Engineers and the non-Federal sponsor shall make
project and program information available in languages other than
English for individuals of limited English proficiency.
(4) The Corps of Engineers and the non-Federal sponsor shall
provide translators or similar services at public meetings where a
significant number of participants are expected to have limited English
proficiency.
Sec. 385.19 Environmental and economic equity.
(a) Project Management Plans and Program Management Plans shall
include information concerning environmental and economic equity
activities to be undertaken during the implementation of the project or
activity.
(b) As required by applicable laws and policies, the Corps of
Engineers and the non-Federal sponsor shall consider and evaluate
environmental justice issues and concerns in the implementation of
projects.
(c) The District Engineer shall ensure that small business concerns
owned and controlled by socially and economically disadvantaged
individuals are provided opportunities to participate under section
15(g) of the Small Business Act (15 U.S.C. 644(g)).
Sec. 385.20 Restoration Coordination and Verification (RECOVER).
(a) RECOVER (Restoration Coordination and Verification) is an
interagency and interdisciplinary scientific and technical team,
outlined in the ``Final Integrated Feasibility Report and Programmatic
Environmental Impact Statement'' dated April 1, 1999. RECOVER was
established by the Corps of Engineers and the South Florida Water
Management District to assess, evaluate, and integrate the projects of
the Plan with the overall goal of ensuring that the system-wide goals
and purposes of the Plan are achieved. RECOVER has been organized into
a Leadership Group that provides management and coordination for the
activities of RECOVER and a number of teams that accomplish activities
such as: developing performance measures; conducting the monitoring and
assessment program; evaluating projects and components developed by
Project Delivery Teams in achieving the system-wide goals and purposes
of the Plan; conducting system-wide water quality analyses; developing,
refining, and applying system-wide models and tools; and considering
modifications to the Plan. RECOVER is not a policy making body, but has
technical and scientific responsibilities that assist the Corps of
Engineers and the South Florida Water Management District in achieving
the goals and purposes of the Plan.
(b) Any documents, reports, or recommendations, including
performance measures or evaluations of alternatives developed for the
Project Implementation Report, prepared or developed by RECOVER shall
not be self-executing, but shall be provided to the Corps of Engineers
and the South Florida Water Management District for review, discussion,
revision, and/or approval, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole
Tribe of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies.
(c) It shall be the intent of the Corps of Engineers and the South
Florida Water Management District to encourage the participation of
other Federal, State, and local agencies and the Miccosukee Tribe of
Indians of Florida and the Seminole Tribe of Florida on RECOVER and to
use the expertise of other agencies and the tribes on RECOVER, to
ensure that information developed by RECOVER is shared at the earliest
possible time, and to ensure that matters of concern are addressed as
early as possible. The Corps of Engineers and the South Florida Water
Management District recognize the special role of the National Marine
Fisheries Service of the Department of Commerce and the Florida Fish
and Wildlife Conservation Commission in marine system issues. The Corps
of Engineers and the South Florida Water Management District recognize
the special role of the Department of the Interior and the Florida Fish
and Wildlife Conservation Commission as stewards of the natural system
and for their technical and scientific activities in support of
restoration. The Corps of Engineers and the South Florida Water
Management District recognize the special role of the Environmental
Protection Agency and the Florida Department of Environmental
Protection in water quality issues. Accordingly, the Corps of Engineers
and the South Florida Water Management District have used and will
continue to use the Department of the Interior, Department of Commerce,
the Florida Fish and Wildlife Conservation Commission, the
Environmental Protection Agency, and the Florida Department of
Environmental Protection as co-chairs along with the Corps of Engineers
and the South Florida Water Management District on the appropriate
technical teams that have been established to date as part of RECOVER.
(1) In general, participation on RECOVER shall be the financial
responsibility of the participating agency or tribe.
(2) Participation by an agency or tribe on RECOVER shall not be
considered or construed to be a substitute for consultation or
coordination required by applicable law or this part.
(d) The Corps of Engineers and the South Florida Water Management
District shall:
(1) Assign program managers to be responsible for carrying out the
activities of RECOVER;
(2) Establish a RECOVER Leadership Group that shall assist the
program managers in coordinating and managing the activities of
RECOVER, including the establishment of sub-teams or other entities,
and in reporting on the activities of RECOVER;
(3) Determine the structure and functions of the RECOVER Leadership
Group, but membership shall include the Department of the Interior, the
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Indians,
the U.S. Environmental Protection Agency, the Florida Department of
Environmental Protection, and may include other Federal, State, and
local agencies; and
(e) RECOVER shall perform functions, including, but not limited to:
(1) Developing performance measures for achieving the system-wide
goals and purposes of the Plan;
(2) Conducting evaluations of alternatives developed for the
Project Implementation Report in achieving the system-wide goals and
purposes of the Plan;
(3) Developing and implementing a monitoring plan to support the
adaptive management program;
(4) Conducting assessment activities as part of the adaptive
management program to assess the actual performance of the Plan;
(5) Conducting analyses associated with preparation of the Master
Implementation Sequencing Plan;
(6) Developing refinements and improvements in the design or
operation of the Plan during all phases of implementation;
[[Page 50562]]
(7) Developing and refining system-wide models and tools;
(8) Conducting activities associated with the preparation of Pilot
Project Technical Reports;
(9) Conducting activities associated with preparation of
Comprehensive Plan Modification Reports;
(10) Conducting activities associated with the preparation of
Operating Manuals;
(11) Developing recommendations for interim goals pursuant to
Sec. 385.38;
(12) Assessing progress towards meeting the interim goals
established pursuant to Sec. 385.38;
(13) Developing recommendations for targets for evaluating progress
in achieving other water-related needs of the region as provided for in
the Plan pursuant to Sec. 385.39;
(14) Assessing progress towards achieving other water-related needs
of the region as provided for in the Plan pursuant to Sec. 385.39;
(15) Cooperating with the independent scientific review panel
constituted pursuant to Sec. 385.22;
(16) Evaluating new information and science that could have an
effect on the Plan; and
(17) Preparing technical information to be used in the development
of the periodic reports to Congress prepared in accordance with
Sec. 385.40.
(f) RECOVER shall assist Project Delivery Teams in ensuring that
project design and performance is fully linked to the system-wide goals
and purposes of the Plan and to incorporate, as appropriate,
information developed for Project Implementation Reports into the Plan.
(g) In carrying out its responsibilities, RECOVER shall consider
projects that are not part of the Plan, but could affect the ability of
the Plan to achieve its goals and purposes.
(h) As appropriate, the Corps of Engineers and the South Florida
Water Management District shall consider seeking independent scientific
review or other similar assistance to RECOVER in carrying out its
responsibilities, including review of documents developed by RECOVER.
Sec. 385.21 Quality control.
(a) The Corps of Engineers and the non-Federal sponsor shall
prepare a quality control plan, in accordance with applicable Corps of
Engineers regulations, for each product that will be produced by a
Project Delivery Team. The quality control plan shall be included in
the Project Management Plan and shall describe the procedures to be
used to ensure compliance with technical and policy requirements during
implementation.
(b) During development of the Project Management Plan for each
project, the Corps of Engineers and the non-Federal sponsor shall
establish an Independent Technical Review Team to conduct reviews to
ensure that products are consistent with established criteria,
guidance, procedures, and policy. The members of the Independent
Technical Review Team shall be independent of the Project Delivery Team
and the project being reviewed, and should be knowledgeable of design
criteria established for the Plan.
(c) Independent technical review is intended to be a continuous
process throughout project implementation. Project managers shall
coordinate accomplishment of technical reviews. The Independent
Technical Review Team shall document its actions and recommendations
and provide reports to the Project Delivery Team at designated points
during the implementation process that shall be described in the
quality control plan.
Sec. 385.22 Independent scientific review.
(a) The Secretary, the Secretary of the Interior, and the Governor,
in consultation with the South Florida Ecosystem Restoration Task
Force, shall 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 pursuant to section 601(j) WRDA 2000.
(1) The Secretary, the Secretary of the Interior, and the Governor
shall prepare agreements, procedures, and guidance as necessary to
establish the panel and to provide for its operation in accordance with
section 601(j) of WRDA 2000.
(2) Completed reports, documents, or other materials prepared by
the panel shall be provided to the Secretary, the Secretary of the
Interior, the Governor and the South Florida Ecosystem Restoration Task
Force and shall also be made available to the public.
(3) The panel shall produce a biennial report to Congress, the
Secretary, the Secretary of the Interior, and the Governor, pursuant to
section 601(j) WRDA 2000, that includes an assessment of ecological
indicators and other measures of progress in restoring the ecology of
the natural system, based on the Plan.
(b) The Corps of Engineers and the South Florida Water Management
District and other non-Federal sponsors shall cooperate with the
independent scientific review panel constituted pursuant to Section 601
(j) of WRDA 2000, including responding to reasonable requests for
information concerning the implementation of the Plan, and shall
consider and respond to recommendations made by such panel.
(c) Notwithstanding the provisions of Section 601(j) of WRDA 2000,
the Corps of Engineers, the State, or the non-Federal sponsor may
establish other independent scientific review panels or peer reviews as
necessary to provide assistance in implementation of the Plan.
Sec. 385.23 Dispute resolution.
(a) Disputes with the non-Federal sponsor concerning a Project
Cooperation Agreement shall be resolved under the specific procedures
of the Project Cooperation Agreement.
(b) Disputes with the non-Federal sponsor concerning design
activities shall be resolved under the specific procedures of the
design agreement.
(c) All other unresolved issues with the non-Federal sponsor and
disputes with the State associated with the implementation of the Plan
shall be resolved according to the terms of the Dispute Resolution
Agreement developed by the Secretary and the Governor pursuant to
section 601(i) of WRDA 2000.
(d) For disputes with parties not covered by the provisions of
paragraphs (a), (b), or (c) of this section, the Corps of Engineers
shall attempt to resolve the dispute in accordance with applicable
statutory requirements and/or the following procedures:
(1) The parties will attempt to resolve disputes at the lowest
organizational level before seeking to elevate a dispute.
(2) Any disputed matter shall first be elevated to the District
Engineer and the equivalent official of the other agency, or their
designees. The parties may decide to continue to elevate the dispute to
higher levels within each agency.
(3) The parties to a dispute may agree to participate in mediation.
(4) When a dispute is resolved the parties shall memorialize the
resolution in writing.
Sec. 385.24 Project Management Plans.
(a) General requirements. (1) The Corps of Engineers and the non-
Federal sponsor shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, develop a Project
Management Plan prior to initiating activities on a project.
(2) The Project Management Plan shall define the activities, and
where
[[Page 50563]]
appropriate, the subordinate tasks, as well as the assignment of
responsibility for completing products such as Project Implementation
Reports, Pilot Project Design Reports, Design Documentation Reports,
plans and specifications, real estate acquisition, construction
contracts and construction, Comprehensive Plan Modification Reports,
and other activities necessary to support the delivery of projects.
(3) The Project Management Plan shall include a quality control
plan, as described in Sec. 385.21.
(4) As appropriate, the Project Management Plan shall include
activities to be conducted to meet the requirements of the Fish and
Wildlife Coordination Act, as described in Sec. 385.26(e).
(5) The Project Management Plan shall provide schedule and funding
information for the project.
(6) In accordance with Sec. 385.18, Corps of Engineers and the non-
Federal sponsor shall provide opportunities for the public to review
and comment on the Project Management Plan.
(b) Changes to Project Management Plans. The Corps of Engineers and
the non-Federal sponsor may, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, revise the Project
Management Plan whenever necessary, including after completion of the
Project Implementation Report, Design Documentation Report, or Plans
and Specifications.
Sec. 385.25 Program Management Plans.
(a) General requirements. (1) The Corps of Engineers and the non-
Federal sponsor shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, develop a Program
Management Plan prior to initiating program-level activities.
(2) The Program Management Plan shall define the activities, and
where appropriate, the subordinate tasks, as well as the assignment of
responsibility for completing products developed in support to program-
level activities.
(3) In accordance with Sec. 385.18, Corps of Engineers and the non-
Federal sponsor shall provide opportunities for the public to review
and comment on the Program Management Plan.
(b) Changes to Program Management Plans. The Corps of Engineers and
the non-Federal sponsor may, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, revise the Program
Management Plan whenever necessary to incorporate new or changed
information that affects the scope, schedule, or budget of the
activities described in the Program Management Plan.
Sec. 385.26 Project Implementation Reports.
(a) General requirements. (1) The Project Implementation Report is
a document containing additional project formulation and evaluation as
well as more detailed engineering and design. The Project
Implementation Report bridges the gap between the conceptual level of
detail contained in the ``Final Integrated Feasibility Report and
Programmatic Environmental Impact Statement'' and the detailed design
necessary to proceed to construction. Prior to implementation of a
project, the Corps of Engineers and the non-Federal sponsor shall, in
consultation with the Department of the Interior, the Environmental
Protection Agency, the Department of Commerce, the Seminole Tribe of
Florida, the Miccosukee Tribe of Indians of Florida, the Florida
Department of Environmental Protection, and other Federal, State, and
local agencies, complete a Project Implementation Report addressing the
project component's economic and environmental benefits, engineering
feasibility, and other factors required by section 601(h)(4)(A) of WRDA
2000. To eliminate duplication with State and local procedures, the
Project Implementation Report shall also address the factors of
relevant State laws including sections 373.1501 and 373.470 of the
Florida Statutes.
(2) The Project Implementation Report shall:
(i) Be consistent with the Plan and this part;
(ii) Be based on the best available science;
(iii) Comply with all applicable Federal, State, or Tribal laws;
(iv) Contain sufficient information for proceeding to final design
of the project, such as: additional plan formulation and evaluation,
engineering and design, economics, environmental analyses, flood damage
assessment, real estate analyses, and the preparation of supplemental
National Environmental Policy Act documents;
(v) In accordance with section 601(b)(2)(A)(ii) of WRDA 2000,
comply with applicable water quality standards and applicable water
quality permitting requirements;
(vi) Identify, pursuant to Sec. 385.35, the appropriate quantity,
timing, and distribution of water dedicated and managed for the natural
system;
(vii) Identify the amount of water to be reserved or allocated for
the natural system under State law necessary to implement the
provisions in paragraphs (a)(2)(v) and (vi) of this section;
(viii) Identify the quantity, timing, and distribution of water
made available for other water-related needs of the region;
(ix) Determine, pursuant to Sec. 385.36, if existing legal sources
of water are to be transferred or eliminated;
(x) Determine, pursuant to Sec. 385.37(b) if a proposed
implementation of the Plan would reduce levels of service for flood
protection:
(A) In existence on the date of enactment of section 601 of WRDA
2000; and
(B) In accordance with applicable law and consider, as appropriate,
pursuant to Sec. 385.37(c), opportunities to provide additional flood
protection;
(xi) Include an analysis concerning costs and benefits, cost-
effectiveness, and engineering feasibility of the project;
(xii) Include an analysis, prepared by RECOVER as described in
paragraph (c)(2) of this section, of the project's effect on achieving
the system-wide goals and purposes of the Plan, and recommendations, if
necessary, concerning modifications to the Plan to ensure that the
goals and purposes of the Plan are achieved and a response, as
appropriate, to the analysis and recommendations prepared by RECOVER;
and
(xiii) To eliminate duplication with State and local procedures,
include, as appropriate, information necessary for the non-Federal
sponsor to address the requirements of Chapter 373 of the Florida
Statutes, and other applicable planning and reporting requirements of
Florida law.
(3) The Corps of Engineers and the non-Federal sponsor shall
develop the Project Implementation Report generally in accordance with
the process shown in figure 2 in Appendix A of this part.
(4) The Corps of Engineers and the South Florida Water Management
District shall, with the concurrence of the Secretary of the Interior
and the Governor, develop a guidance
[[Page 50564]]
memorandum in accordance with Sec. 385.5 that describes the major tasks
that are generally needed to prepare a Project Implementation Report
and the format and content of a Project Implementation Report.
(b) Formulation and evaluation.
(1) In preparing a Project Implementation Report, the Corps of
Engineers and the non-Federal sponsor shall formulate and evaluate
alternatives to better define and refine project plan components to
optimize the project's contributions towards the system-wide goals and
purposes of the Plan. In designing individual project components,
Project Delivery Teams shall attempt to stay within the funding target
for the project established in the ``Final Integrated Feasibility
Report and Programmatic Environmental Impact Statement,'' dated April
1, 1999, adjusted for inflation. In cases where it is not feasible to
accomplish the project goals and purposes without exceeding this
target, or where the project ratio of benefits to costs can be
significantly improved by exceeding the target, the PIR shall document
deviations from the funding target in the ``Final Integrated
Feasibility Report and Programmatic Environmental Impact Statement,''
dated April 1, 1999 and explain the need for such deviations.
(i) General. The Corps of Engineers and the South Florida Water
Management District shall, with the concurrence of the Secretary of the
Interior and the Governor, develop a guidance memorandum in accordance
with Sec. 385.5 that describes the processes to be used to formulate
and evaluate alternatives, their costs and benefits, both monetary and
non-monetary, and their cost effectiveness, and the basis for scoping
and selecting the features which comprise the selected alternative.
Project Implementation Reports approved before the date of promulgation
of these regulations or the development of a guidance memorandum may
use whatever method that, in the District Engineer's discretion, and in
cooperation with the non-Federal sponsor, is deemed appropriate and is
consistent with applicable law and the Programmatic Regulations in this
part.
(ii) System formulation and evaluation. The guidance memorandum
shall describe the process for formulating alternatives to optimize
contributions to the system-wide goals and purposes of the Plan by
including each alternative with all of the other components of the Plan
and comparing total benefits and costs of the alternative under both
the with-CERP and the without CERP condition.
(iii) Interim project assessment. The guidance memorandum shall
also include a process for evaluation of each alternative as the next
added increment of the Plan for the purposes of impact assessment,
evaluating the project's contribution toward achieving the interim
goals and targets for other water related needs, determining
appropriate sequencing of the project and determining if the benefits
of the alternative justify its costs without regard to projects not yet
implemented.
(iv) Identification of selected alternative. The guidance
memorandum shall also include a process for identification of the
selected alternative, based on the analyses conducted in paragraphs
(b)(1)(ii) and (iii) of this section. This alternative should be
justified based on the project's contributions to both the system-wide
goals and purposes of the Plan and the interim goals and targets. If
the alternative cannot be justified on a next added basis, it should be
justified based on sequencing factors, dependency of other CERP
projects on its completion, and/or operational considerations. The
Guidance Memorandum shall also include an evaluation of the selected
alternative as the last added increment of the Plan to determine the
incremental benefits and costs of the project in terms of how it
contributes to achievement of the system-wide goals and purposes of the
Plan. This analysis should also identify the extent to which benefits
are dependent on other components of the Plan, and note any benefits
that will also be included in the last added increment analysis for
other projects. The PIR should also include an identification of the
water to be reserved for the natural system, based on the next added
increment analysis.
(c) RECOVER Performance Evaluation of Alternatives for a Project
Implementation Report. (1) The Corps of Engineers and the South Florida
Water Management District shall, with the concurrence of the Secretary
of the Interior and the Governor, develop a guidance memorandum in
accordance with Sec. 385.5 that describes the process to be used by
RECOVER for the evaluation of alternatives developed for the Project
Implementation Report in achieving the goals and purposes of the Plan.
(2) RECOVER shall evaluate the performance of alternatives
developed for the Project Implementation Report towards achieving the
goals and purposes of the Plan using appropriate performance measures.
(3) RECOVER shall prepare information for the Project Delivery Team
describing the results of the evaluations of alternatives developed for
the Project Implementation Report towards achieving the goals and
purposes of the Plan, including, as appropriate, recommendations and
suggestions for improving the performance of the alternatives.
(d) National Environmental Policy Act Documentation. (1) The Corps
of Engineers and the non-Federal sponsor shall prepare the appropriate
NEPA document for inclusion in the Project Implementation Report. The
NEPA document for the Project Implementation Report shall use the
Programmatic Environmental Impact Statement included in the ``Final
Integrated Feasibility Report and Programmatic Environmental Impact
Statement'' dated April 1, 1999 as appropriate for the purpose of
tiering as described in Sec. 230.14(c) of this chapter.
(2) Whenever possible, the NEPA document shall be integrated into
the Project Implementation Report.
(3) As appropriate, other agencies shall be invited to be
cooperating agencies in the preparation of the NEPA document pursuant
to Sec. 230.16 of this chapter.
(4) The District Engineer is the NEPA official responsible for
compliance with NEPA for actions conducted to implement the Plan.
Unless otherwise provided for by this part, NEPA coordination for CERP
implementation shall follow the NEPA procedures established in part 230
of this chapter.
(5) The District Engineer shall prepare the Record of Decision for
Project Implementation Reports. Review and signature of the Record of
Decision shall follow the same procedures as for review and approval of
feasibility reports in Sec. 230.14 of this chapter and other applicable
Corps of Engineers regulations.
(e) Fish and Wildlife Coordination Act Requirements. (1) The Corps
of Engineers and the non-Federal sponsor shall coordinate with the U.S.
Fish and Wildlife Service, the National Marine Fisheries Service, the
Florida Fish and Wildlife Conservation Commission, and other
appropriate agencies in the preparation of a Project Implementation
Report, as required by applicable law.
(2) The Project Management Plan shall include a discussion of any
activities to be conducted for compliance with the Fish and Wildlife
Coordination Act and other applicable laws.
(3) As appropriate, coordination shall include preparation of the
following as shown in figure 2 in Appendix A of this part:
(i) Planning Aid Letter that describes the fish and wildlife
resources in the
[[Page 50565]]
project area and any recommendations to assist the planning process;
(ii) Fish and Wildlife Issues and Recommendations on effects,
concerns, and issues about alternative plans; and
(iii) Draft and final Coordination Act Reports that provide the
formal views of the U.S. Fish and Wildlife Service, the National Marine
Fisheries Service, and the Florida Fish and Wildlife Conservation
Commission on alternative plans.
(f) Project Implementation Report review and approval process.
(1) The Corps of Engineers and the non-Federal sponsor shall
provide opportunities for review and comment by the public on the draft
Project Implementation Report and NEPA document, in accordance with
applicable law.
(2) Upon approval of the Project Implementation Report by the
Division Engineer and the non-Federal sponsor, the Division Engineer
shall issue a public notice announcing completion of the Project
Implementation Report based upon:
(i) His/her endorsement of the findings and recommendations of the
District Engineer and the non-Federal sponsor; and
(ii) His/her assessment that the report is in accord with current
policy. The notice shall indicate that the report has been submitted
for Washington level review.
(3) Headquarters, US Army Corps of Engineers shall coordinate the
Washington level review in accordance with applicable policies and
regulations of the Corps of Engineers. Headquarters, US Army Corps of
Engineers shall administer the 30-day state and agency review of the
Project Implementation Report as required by law.
(4) After completion of the policy review, the Chief of Engineers
shall transmit the Chief of Engineers Report to the Assistant Secretary
of the Army for Civil Works for review.
(5) The Assistant Secretary of the Army for Civil Works shall
review all Project Implementation Reports.
(i) For projects authorized by section 601(c) of WRDA 2000, the
Assistant Secretary of the Army for Civil Works shall review and
approve the Project Implementation Report prior to implementation of
the project.
(ii) For projects authorized by section 601(b)(2)(C) of WRDA 2000,
the Assistant Secretary of the Army for Civil Works shall transmit the
Project Implementation Report to the Committee on Transportation and
Infrastructure of the House of Representatives and the Committee on
Environment and Public Works of the Senate for approval.
(iii) For all other projects, the Assistant Secretary of the Army
for Civil Works shall transmit the Project Implementation Report to
Congress for authorization.
(6) The non-Federal sponsor may use the Project Implementation
Report as the basis for obtaining approval under applicable Florida
law.
Sec. 385.27 Project Cooperation Agreements.
(a) General. Prior to initiating construction or implementation of
a project, the Corps of Engineers shall execute a Project Cooperation
Agreement with the non-Federal sponsor in accordance with applicable
law.
(b) Verification of water reservations. The Project Cooperation
Agreement shall include a finding that a reservation or allocation of
water for the natural system as identified in the Project
Implementation Report has been executed under State law.
(c) Changes to water reservations. Reservations or allocations of
water are a State responsibility. Any change to the reservation or
allocation of water for the natural system made under State law shall
require an amendment to the Project Cooperation Agreement. The
Secretary shall verify, in consultation with the South Florida Water
Management District, the Florida Department of Environmental
Protection, the Department of the Interior, the Environmental
Protection Agency, the Department of Commerce, the Seminole Tribe of
Florida, the Miccosukee Tribe of Indians of Florida, and other Federal,
State, and local agencies that the revised reservation or allocation
continues to provide for an appropriate quantity, timing and
distribution of water dedicated and managed for the natural system
after considering any changed circumstances or new information since
completion of the Project Implementation Report. In accordance with
applicable State law, the non-Federal sponsor shall provide
opportunities for the public to review and comment on any proposed
changes in the water reservation made by the State.
(d) Savings clause provisions. The Project Cooperation Agreement
shall include a provision that the Corps of Engineers and the non-
Federal sponsor shall not:
(1) Eliminate or transfer existing legal sources of water until a
new source of comparable quantity and quality as that available on the
date of enactment of WRDA 2000 is available to replace the water to be
lost as a result of implementation of the Plan; and
(2) Reduce levels of service for flood protection that are:
(i) In existence on the date of enactment of WRDA 2000; and
(ii) In accordance with applicable law.
Sec. 385.28 Operating Manuals.
(a) General provisions. (1) The Corps of Engineers and the non-
Federal sponsor shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, develop Operating Manuals
to ensure that the goals and purposes of the Plan are achieved.
(2) Operating Manuals for the Plan shall consist of a System
Operating Manual and Project Operating Manuals. In general, the System
Operating Manual shall provide a system-wide operating plan for the
operation of the projects of the Plan and other C&SF Project features.
The Project Operating Manuals shall provide the details necessary for
integrating the operation of the individual projects with the system
operation described in the System Operating Manual.
(3) The Division Engineer and the non-Federal sponsor shall approve
Operating Manuals prior to their development or revision.
(4) In accordance with applicable law the Corps of Engineers and
the non-Federal sponsor shall only carry out any significant
modifications to Operating Manuals after notice and opportunity for
public comment.
(5) The Corps of Engineers and the South Florida Water Management
District shall, with the concurrence of the Secretary of the Interior
and the Governor, develop a guidance memorandum in accordance with
Sec. 385.5 that describes the content of Operating Manuals and the
tasks necessary to develop Operating Manuals.
(6) Operating Manuals shall:
(i) Describe regulation schedules, water control, and operating
criteria for a project, group of projects, or the entire system;
(ii) Make provisions for the natural fluctuation of water made
available in any given year and fluctuations necessary for the natural
system as described in the Plan;
(iii) Be consistent with the identification of the appropriate
quantity, timing, and distribution of water for the natural system;
[[Page 50566]]
(iv) Be consistent with applicable water quality standards and
applicable water quality permitting requirements;
(v) Be consistent with the water reservation or allocation for the
natural system and the savings clause provisions described in the
Project Implementation Report and the Project Cooperation Agreement and
the provisions of Sec. 385.35(b), Sec. 385.36 and Sec. 385.37;
(vi) Include a drought contingency plan as required by
Sec. 222.5(i)(5) of this chapter and Engineer Regulation ER 1110-2-
1941;
(vii) Include NEPA documentation, as appropriate;
(viii) Allow for adjustments during the year when substantial
departures from expected rainfall and runoff occur, or are necessary
based on adaptive management; and
(ix) Include provisions authorizing temporary deviations from all
applicable regulations for emergencies and unplanned minor deviations
as described in applicable Corps of Engineers regulations, including
Sec. 222.5(f)(4) and Sec. 222.5(i)(5) of this chapter, and Engineer
Regulation ER 1110-2-8156 ``Preparation of Water Control Manuals.''
However, deviations shall be minimized by including planning for
flooding events caused by rainfall and hurricane events, as well as by
including a drought contingency plan.
(7) As appropriate, RECOVER shall conduct activities associated
with the preparation of Operating Manuals as described in Sec. 385.20.
(8) Except as provided in this part, operating manuals generally
shall follow the procedures for water control plans in Sec. 222.5 of
this chapter and applicable Corps of Engineers regulations for
preparation of water control manuals and regulation schedules,
including Engineer Regulation ER 1110-2-8156.
(b) System Operating Manual. (1) The Corps of Engineers and the
South Florida Water Management District shall, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Seminole Tribe of Florida, the Miccosukee
Tribe of Indians of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, develop a
System Operating Manual that provides a system-wide operating plan for
the operation of implemented projects of the Plan and other C&SF
Project features to ensure that the goals and purposes of the Plan are
achieved.
(2) The System Operating Manual shall initially be based on the
existing completed Central and Southern Florida Project features and
shall be initially developed by the Corps of Engineers as provided in
Sec. 222.5(g) of this chapter and by the South Florida Water Management
District as its laws and regulations require. Existing water control
plans, regulation schedules, and Master Water Control Plans shall
remain in effect until development of the System Operating Manual.
(3) The System Operating Manual shall be revised whenever the Corps
of Engineers and the non-Federal Sponsor, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Seminole Tribe of Florida, the Miccosukee
Tribe of Indians of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, believe it is
necessary due to making operational changes that have system-wide
effects or prior to the completion of new projects that are expected to
have system-wide effects.
(4) Except as provided in this part, the System Operating Manual
shall follow the procedures for preparation of water control manuals,
regulation schedules and Master Water Control Manuals in Sec. 222.5 of
this chapter and applicable Corps of Engineers regulations.
(c) Project Operating Manuals. (1) The Corps of Engineers and the
non-federal sponsor shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, develop a Project
Operating Manual for each project of the Plan that is implemented.
(2) Project Operating Manuals shall be considered as supplements to
the System Operating Manual, and present aspects of the projects not
common to the system as a whole.
(3) Each Project Implementation Report shall, as appropriate,
include a draft Project Operating Manual as an appendix to the Project
Implementation Report.
(4) As necessary, the draft Project Operating Manual shall be
revised for project construction phase and the monitoring and testing
phase after completion of project construction.
(5) The final Project Operating Manual shall be completed as soon
as practicable after completion of the operational testing and
monitoring phase of the project. The completed project shall continue
to be operated in accordance with the approved draft Project Operating
Manual until the final Project Operating Manual is approved.
Sec. 385.29 Other project documents.
(a) Whenever necessary, the Corps of Engineers and the non-Federal
sponsor shall prepare a Design Documentation Report to provide
additional design details needed for the preparation of Plans and
Specifications for the project. Such documents shall be approved in
accordance with applicable policies of the Corps of Engineers and the
non-Federal sponsor.
(b) The Corps of Engineers and the non-Federal sponsor shall
prepare Plans and Specifications necessary for construction of the
project. Such documents shall be approved in accordance with applicable
policies of the Corps of Engineers and the non-Federal sponsor.
(c) The Corps of Engineers and the non-Federal sponsor may prepare
other documents as necessary during the real estate acquisition and
construction phases of the project. Such documents shall be approved in
accordance with applicable policies of the Corps of Engineers and the
non-Federal sponsor.
Subpart D--Incorporating New Information Into the Plan
Sec. 385.30 Master Implementation Sequencing Plan.
(a) The Corps of Engineers and the South Florida Water Management
District shall, in consultation with the Department of the Interior,
the Environmental Protection Agency, the Department of Commerce, the
Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida,
the Florida Department of Environmental Protection, and other Federal,
State, and local agencies, develop a Master Implementation Sequencing
Plan that includes the sequence and schedule for implementation of all
of the projects of the Plan, including pilot projects and operational
elements, based on the best scientific, technical, funding,
contracting, and other information available.
(1) Projects shall be sequenced and scheduled to maximize the
achievement of the goals and purposes of the Plan at the earliest
possible time and in the most cost-effective way, including the
achievement of the interim goals established pursuant to Sec. 385.38
and the targets for achieving progress towards other water-related
needs of the region provided for in the Plan established pursuant
Sec. 385.39, to the extent
[[Page 50567]]
practical given funding, engineering, and other constraints.
(2) The Master Implementation Sequencing Plan shall include
appropriate discussion of the logic, constraints, and other parameters
used in developing the sequence and schedule of projects.
(3) In accordance with Sec. 385.18, Corps of Engineers and the non-
Federal sponsor shall provide opportunities for the public to review
and comment on the Master Implementation Sequencing Plan.
(4) The existing sequence and schedule developed by the Corps of
Engineers and the South Florida Water Management District shall remain
in effect until the Master Implementation Sequencing Plan is developed.
(b) At least annually, the Corps of Engineers and the South Florida
Water Management District shall, in consultation with the Department of
the Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, review the Master
Implementation Sequencing Plan.
(1) The Master Implementation Sequencing Plan may be revised as
necessary, and consistent with the goals and purposes of the Plan, to
incorporate new information such as:
(i) Updated schedules from Project Management Plans;
(ii) The results of pilot projects and other studies;
(iii) Updated funding information;
(iv) Approved revisions to the Plan;
(v) Congressional or other authorization or direction;
(vi) Information resulting from the adaptive management program
including new information on costs and benefits; or
(vii) Progress towards achieving the interim goals established
pursuant to Sec. 385.38 and the targets for achieving progress towards
other water-related needs of the region provided for in the Plan
established pursuant to Sec. 385.39.
(2) As appropriate, proposed revisions to the Master Implementation
Sequencing Plan shall be evaluated by RECOVER for effects on plan
performance.
(3) The revised Master Implementation Sequencing Plan shall include
information about the reasons for the changes to the sequence and
schedule of individual projects.
(4) In accordance with Sec. 385.18 the Corps of Engineers and the
non-Federal sponsor shall provide opportunities for the public to
review and comment on revisions to the Master Implementation Sequencing
Plan.
Sec. 385.31 Adaptive Management Program.
(a) General. The Corps of Engineers and the South Florida Water
Management District shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, establish an adaptive
management program to assess responses of the system to implementation
of the Plan; to determine whether or not these responses match
expectations, including the achievement of the expected performance
level of the Plan, the interim goals established pursuant to
Sec. 385.38, and the targets for achieving progress towards other
water-related needs of the region provided for in the Plan established
pursuant Sec. 385.39; to determine if the Plan, system or project
operations, or the sequence and schedule of projects should be modified
to achieve the goals and purposes of the Plan or to increase benefits
or improve cost effectiveness; and to seek continuous improvement of
the Plan based upon new information resulting from changed or
unforeseen circumstances, new scientific or technical information, new
or updated models, or information developed through the adaptive
assessment principles contained in the Plan, or future authorized
changes to the Plan integrated into the implementation of the Plan.
Endorsement of the Plan as a restoration framework is not intended as
an artificial constraint on innovation in its implementation.
(b) Assessment activities. (1) RECOVER shall design an assessment
program to assess responses of the system to implementation of the
Plan, and the Corps of Engineers and the South Florida Water Management
District shall, with the concurrence of the Secretary of the Interior
and the Governor, develop a guidance memorandum, in accordance with
Sec. 385.5, that describes the processes to be used to conduct these
assessments.
(2) RECOVER shall develop and implement a monitoring plan that is
designed to measure status and trends towards achieving the system-wide
goals and purposes of the Plan.
(3) RECOVER shall use the information collected and analyzed
through the monitoring program as a basis for conducting assessment
tasks, which may include, but are not limited to, the following:
(i) Determining if measured responses are undesirable or are
falling short of achieving interim goals or the expected performance
level of the Plan;
(ii) Evaluating if corrective actions to improve performance or
improve cost-effectiveness should be considered; and
(iii) Preparing annual reports on the monitoring program.
(4) Whenever it is deemed necessary, but at least every five years,
RECOVER shall prepare an assessment report for approval by the Corps of
Engineers and the South Florida Water Management District, in
consultation with the Department of the Interior, the Environmental
Protection Agency, the Department of Commerce, the Seminole Tribe of
Florida, the Miccosukee Tribe of Indians of Florida, the Florida
Department of Environmental Protection, and other Federal, State, and
local agencies, that presents an assessment of whether the goals and
purposes of the Plan are being achieved, including whether interim
goals and targets for evaluating progress on achieving other water-
related needs of the region are being achieved or are likely to be
achieved.
(i) The Corps of Engineers and the South Florida Water Management
District shall also consult with the South Florida Ecosystem
Restoration Task Force in preparing the report.
(ii) The independent scientific review panel established pursuant
to Sec. 385.22 shall be provided an opportunity to review the draft
assessment report.
(iii) In accordance with Sec. 385.18, Corps of Engineers and the
South Florida Water Management District shall provide opportunities for
the public to review and comment on the draft assessment report.
(c) Management actions. (1) General. In seeking continuous
improvement of the Plan based upon new information resulting from
changed or unforeseen circumstances, new scientific or technical
information, new or updated models, or information developed through
the adaptive assessment principles contained in the Plan, or future
authorized changes to the Plan integrated into the implementation of
the Plan, the Corps of Engineers and the South Florida Water Management
District and other non-Federal sponsors, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Seminole Tribe of Florida, the Miccosukee
Tribe of Indians of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, shall
[[Page 50568]]
use the assessment reports prepared by RECOVER, information resulting
from the activities of the independent scientific review panel pursuant
to Sec. 385.22, or other appropriate information including progress
towards achievement of the interim goals established pursuant
toSec. 385.38 and the targets for achieving progress towards other
water-related needs of the region provided for in the Plan established
pursuant to Sec. 385.39. In developing improvements to the Plan, the
Corps of Engineers and the South Florida Water Management District
shall, in consultation with the Department of the Interior, the
Environmental Protection Agency, the Department of Commerce, the
Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida,
the Florida Department of Environmental Protection, and other Federal,
State, and local agencies, consider the following actions:
(i) Modifying current operations of the Plan;
(ii) Modifying the design or operational plan for a project of the
Plan not yet implemented;
(iii) Modifying the sequence or schedule for implementation of the
Plan;
(iv) Adding new components to the Plan or deleting components not
yet implemented;
(v) Removing or modifying a component of the Plan already in place;
or
(vi) A combination of these.
(2) Operational changes. Whenever the Corps of Engineers and the
South Florida Water Management District, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Seminole Tribe of Florida, the Miccosukee
Tribe of Indians of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, determine
that changes to operations are necessary to ensure that the goals and
purposes of the Plan are achieved or that they are achieved cost-
effectively, including achievement of the interim goals established
pursuant to Sec. 385.38 and the targets for achieving progress towards
other water-related needs of the region provided for in the Plan
established pursuant to Sec. 385.39, the Corps of Engineers and the
South Florida Water Management District shall, in consultation with the
Department of the Interior, the Environmental Protection Agency, the
Department of Commerce, the Seminole Tribe of Florida, the Miccosukee
Tribe of Indians of Florida, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, prepare
revisions to the Operating Manuals in accordance with the provisions of
Sec. 385.28.
(3) Sequence and schedule changes. Whenever the Corps of Engineers
and the South Florida Water Management District, in consultation with
the Department of the Interior, the Environmental Protection Agency,
the Department of Commerce, the Seminole Tribe of Florida, the
Miccosukee Tribe of Indians of Florida, the Florida Department of
Environmental Protection, and other Federal, State, and local agencies,
determine that changes to the sequence and schedule for implementation
of the Plan are necessary to ensure that the goals and purposes of the
Plan are achieved or that they are achieved cost-effectively, including
achievement of the interim goals established pursuant to Sec. 385.38
and the targets for achieving progress towards other water-related
needs of the region provided for in the Plan established pursuant to
Sec. 385.39, the Corps of Engineers and the South Florida Water
Management District shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, prepare revisions to the
Master Implementation Sequencing Plan in accordance with the provisions
of Sec. 385.30.
(4) Plan changes. Whenever the Corps of Engineers and the South
Florida Water Management District, in consultation with the Department
of the Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, determine that changes to
the Plan are necessary to ensure that the goals and purposes of the
Plan are achieved or that they are achieved cost-effectively, including
achievement of the interim goals established pursuant to Sec. 385.38
and the targets for achieving progress towards other water-related
needs of the region provided for in the Plan established pursuant to
Sec. 385.39, the Corps of Engineers and the South Florida Water
Management District shall, in consultation with the Department of the
Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, prepare a Comprehensive
Plan Modification Report in accordance with Sec. 385.32.
Sec. 385.32 Comprehensive Plan Modification Report.
Whenever, the Corps of Engineers and the South Florida Water
Management District determine, in consultation with the Department of
the Interior, the Environmental Protection Agency, the Department of
Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of
Indians of Florida, the Florida Department of Environmental Protection,
and other Federal, State, and local agencies, that changes to the Plan
are necessary to ensure that the goals and purposes of the Plan are
achieved or that they are achieved cost-effectively, the Corps of
Engineers and the South Florida Water Management District shall, in
consultation with the Department of the Interior, the Environmental
Protection Agency, the Department of Commerce, the Seminole Tribe of
Florida, the Miccosukee Tribe of Indians of Florida, the Florida
Department of Environmental Protection, and other Federal, State, and
local agencies, prepare a Comprehensive Plan Modification Report using
a process that is consistent with the provisions of Sec. 385.10,
Sec. 385.18, and Sec. 385.19. The Corps of Engineers and the South
Florida Water Management District shall also consult with the South
Florida Ecosystem Restoration Task Force in preparing the report.
(a) General requirements. The Comprehensive Plan Modification
Report shall:
(1) Be initiated at the discretion of the Corps of Engineers and
the South Florida Water Management District after consideration of the
recommendations of RECOVER, requests from the Department of the
Interior or the State, or other appropriate information;
(2) Comply with all applicable Federal and State laws, including
the National Environmental Policy Act, the Endangered Species Act, the
Fish and Wildlife Coordination Act, the National Historic Preservation
Act, the Clean Water Act, the Safe Drinking Water Act, the Clean Air
Act, and any other applicable law;
(3) Contain information such as: plan formulation and evaluation,
engineering and design, economics, environmental analyses, flood damage
assessment, and real estate analyses;
(4) Include appropriate analyses conducted by RECOVER;
[[Page 50569]]
(5) Contain appropriate NEPA documentation to supplement the
Programmatic Environmental Impact Statement included in the ``Final
Integrated Feasibility Report and Programmatic Environmental Impact
Statement'' dated April 1, 1999; and
(6) Include coordination with the U.S. Fish and Wildlife Service,
the National Marine Fisheries Service, the Florida Fish and Wildlife
Coordination Commission, and other appropriate agencies in the
preparation of the Comprehensive Plan Modification Report, as required
by applicable law.
(b) Review and approval of Comprehensive Plan Modification Report.
(1) The Corps of Engineers and the South Florida Water Management
District shall provide opportunities for review and comment by the
public on the draft Comprehensive Plan Modification Report and NEPA
document, in accordance with applicable law.
(2) Upon approval of the Comprehensive Plan Modification Report by
the Division Engineer and the non-Federal sponsor, the Division
Engineer shall issue a public notice announcing completion of the
Comprehensive Plan Modification Report based upon:
(i) His/her endorsement of the findings and recommendations of the
District Engineer and the non-Federal sponsor; and
(ii) His/her assessment that the report is in accord with current
policy. The notice shall indicate that the report has been submitted
for Washington level review.
(3) Headquarters, US Army Corps of Engineers shall coordinate the
Washington level review in accordance with applicable policies and
regulations of the Corps of Engineers. Headquarters, US Army Corps of
Engineers shall administer the 30-day state and agency review of the
Comprehensive Plan Modification Report as required by law.
(4) After completion of the policy review, The Chief of Engineers
shall transmit the Chief of Engineers Report to the Assistant Secretary
of the Army for Civil Works for review.
(5) Upon approval, the Assistant Secretary of the Army for Civil
Works shall transmit the Comprehensive Plan Modification Report to
Congress.
(6) As appropriate, the non-Federal sponsor may use the
Comprehensive Plan Modification Report as the basis for obtaining
approval under applicable Florida law.
(c) Minor changes to the Plan. The Plan requires a process for
adaptive management and incorporation of new information into the Plan.
As a result of this process, each Project Implementation Report may
make minor adjustments in the Plan. It is not the intent of this
section to require a continual cycle of report writing for minor
changes. Instead, the intent of this section is to develop a
Comprehensive Plan Modification Report for major changes to the Plan
comparable to those that would require a supplement to the programmatic
Environmental Impact Statement. The Corps of Engineers and South
Florida Water Management District may, in their discretion, elect to
prepare a Comprehensive Plan Modification Report for other changes.
Sec. 385.33 Revisions to models and analytical tools.
(a) In carrying out their responsibilities for implementing the
Comprehensive Everglades Restoration Plan and this part, the Corps of
Engineers, the South Florida Water Management District, and other non-
Federal sponsors shall rely on the best available science including
models and other analytical tools for conducting analyses for the
planning, design, construction, operation, and assessment of projects.
The selection of models and analytical tools shall be done in
consultation with the Department of the Interior, the Miccosukee Tribe
of Indians of Florida, the Seminole Tribe of Florida, the Environmental
Protection Agency, the Department of Commerce, the Florida Department
of Environmental Protection, and other Federal, State, and local
agencies.
(b) The Corps of Engineers, the South Florida Water Management
District, and other non-Federal sponsors may, in consultation with the
Department of the Interior, the Miccosukee Tribe of Indians of Florida,
the Seminole Tribe of Florida, the Environmental Protection Agency, the
Department of Commerce, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, periodically
revise models and analytical tools or develop new models and analytical
tools as needed. As necessary, RECOVER shall review the adequacy of
system-wide simulation models and analytical tools used in the
evaluation and assessment of projects, and shall make recommendations
for improvements in models and analytical tools required for the
evaluation and assessment tasks.
(c) The Corps of Engineers and the South Florida Water Management
District shall determine on a case-by-case basis what documentation is
appropriate for revisions to models and analytic tools, depending on
the significance of the changes and their impacts to the Plan. Such
changes may be treated as Minor Changes to the Plan, in accordance with
Sec. 385.32(c) where appropriate.
Sec. 385.34 Changes to the Plan.
(a) The Plan shall be updated to incorporate approved changes to
the Plan resulting from:
(1) Approval by the Secretary of a project to be implemented
pursuant to Sec. 385.13;
(2) Authorization of projects by Congress;
(3) Comprehensive Plan Modification Reports approved by Congress;
or
(4) Other changes authorized by Congress.
(b) The Corps of Engineers and the South Florida Water Management
District shall periodically prepare a document for dissemination to the
public that describes:
(1) The components of the Plan including any approved changes to
the Plan;
(2) The estimated cost of the Plan including any approved changes
to the Plan;
(3) A water budget for the Plan; and
(4) The water that has been reserved or allocated for the natural
system under State law for the Plan.
(c) The Corps of Engineers shall provide annually to the Office of
Management and Budget an updated estimate of total CERP cost, the costs
of individual project components, and an explanation of any changes in
these estimates from the initial estimates contained in the ``Final
Integrated Feasibility Report and Programmatic Environmental Impact
Statement,'' dated April 1, 1999.
Subpart E--Ensuring Protection of the Natural System and Water
Availability Consistent With the Goals and Purposes of the Plan
Sec. 385.35 Achievement of the benefits of the Plan.
(a) Pre-CERP baseline water availability. (1) Not later than June
30, 2003, the Corps of Engineers and the South Florida Water Management
District shall, in consultation with the Department of the Interior,
the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of
Florida, the Environmental Protection Agency, the Department of
Commerce, the Florida Department of Environmental Protection, and other
Federal, State, and local agencies, develop the pre-CERP baseline to
determine the quantity, quality, timing, and distribution of water
delivered by the existing Central
[[Page 50570]]
and Southern Florida Project prior to the date of enactment of section
601 of WRDA 2000. In developing the pre-CERP baseline, the Corps of
Engineers and the South Florida Water Management District shall use a
method that is consistent with the guidance memorandum approved in
accordance with paragraph (b)(2) of this section.
(2) Concurrence by the Secretary of the Interior and the Governor
shall be required on the proposed pre-CERP baseline. Within 180 days
from the development of the pre-CERP baseline, or December 31, 2003,
whichever is sooner, or such shorter period that the Secretary of the
Interior and the Governor may agree to, the Secretary of the Interior
and the Governor may provide the Secretary with a written statement of
concurrence or nonconcurrence with the proposed pre-CERP baseline. A
failure to provide a written statement of concurrence or nonconcurrence
within such time frame shall be deemed as meeting the concurrency
requirements of this section. Any nonconcurrency statement shall
specifically detail the reason or reasons for the non-concurrence. The
Corps of Engineers and the South Florida Water Management District
shall give good faith consideration to any nonconcurrency statement,
and take the reason or reasons for the nonconcurrence into account in
the final decision to determine the pre-CERP baseline.
(3) In preparing a Project Implementation Report, the Corps of
Engineers and the South Florida Water Management District shall
determine whether the pre-CERP baseline quantity of water of comparable
quality is still available. The Corps of Engineers and the non-Federal
sponsor shall consider any change in availability of pre-CERP baseline
water and previously reserved water in identifying the quantity,
timing, and distribution of water to be made available for the natural
system by a project component in preparing the Project Implementation
Report. The Project Implementation Report shall consider: whether
additional quantity, timing, and distribution of water should be made
available by subsequent projects; whether improvements in water quality
are needed in order to ensure that water delivered to the natural
system meets applicable water quality standards; whether to recommend
preparation of a Comprehensive Plan Modification Report as described in
Sec. 385.32; and whether to recommend that the State of Florida and its
agencies re-examine the reservation or allocation of water made
pursuant to State law in order to provide for restoration of the
natural system consistent with the Plan. In preparing a Project
Implementation Report, the concurrence provisions of paragraph (a)(2)
of this section shall not apply to a determination of whether the pre-
CERP baseline is still available.
(b) Identification of water to be reserved or allocated for the
natural system in the Project Implementation Report. (1) Each Project
Implementation Report shall take into account the pre-CERP baseline
water and previously reserved water in identifying the appropriate
quantity, timing, and distribution of water dedicated and managed for
the natural system, determining whether improvements in water quality
are necessary to ensure that water delivered to the natural system
meets applicable water quality standards; and identifying the amount of
water for the natural system necessary to implement, under State law,
the provisions of section 601(h)(4)(A)(iii)(V) of WRDA 2000.
(2) Section 601(h)(3)(C)(i)(I) of WRDA 2000 requires the
programmatic regulations in this part to establish a process for
development of Project Implementation Reports, Project Cooperation
Agreements, and Operating Manuals that ensure that the goals and
objectives of the Plan are achieved. Section 601(h)(4)(A)(iii)(IV) of
WRDA 2000 provides that Project Implementation Reports shall identify
the appropriate quantity, timing, and distribution of water dedicated
and managed for the natural system. Section 601(h)(4)(A)(iii)(V) of
WRDA 2000 provides that Project Implementation Reports shall identify
the amount of water to be reserved or allocated for the natural system
necessary to implement, under State law, the provisions of section
601(h)(4)(A)(iii)(IV) and (VI) of WRDA 2000. To implement these
provisions and Sec. 385.5, the Corps of Engineers and the South Florida
Water Management District shall, with the concurrence of the Secretary
of the Interior and the Governor, develop a guidance memorandum for use
of the Corps of Engineers and the non-federal sponsor. The guidance
memorandum shall provide a process to be used in the preparation of
Project Implementation Reports for identifying the appropriate
quantity, timing, and distribution of water dedicated and managed for
the natural system; determining whether improvements in water quality
are necessary to ensure that water delivered to the natural system
meets applicable water quality standards; and identifying the amount of
water for the natural system necessary to implement, under State law,
the provisions of section 601(h)(4)(A)(iii) of WRDA 2000.
(i) The guidance memorandum shall generally be based on a system-
wide analysis that adds the project recommended in the Project
Implementation Report to the projects of the Plan for which Project
Implementation Reports have already been implemented and may express
the quantity, timing and distribution of water in stage duration
curves; exceedance frequency curves; quantities available in average,
wet, and dry years; or any other method which is based on the best
available science. The guidance memorandum shall also provide for
projects that are hydrologically separate from the rest of the system.
The guidance memorandum also shall address procedures for determining
whether improvements in water quality are necessary to ensure that
water delivered to the natural system meets applicable water quality
standards. These procedures shall ensure that any features to improve
water quality are implemented in a manner consistent with the cost
sharing provisions of the Water Resources Development Acts of 1996 and
2000.
(ii) The guidance memorandum shall generally take into account the
natural fluctuation of water made available in any given year; the
objective of restoration of the natural system; the need for protection
of existing uses transferred to new sources; contingencies for drought
protection; the need to identify the additional quantity, timing, and
distribution of water made available by a new project component while
maintaining a system-wide perspective on the amount of water made
available by the Plan; and the need to determine whether improvements
in water quality are necessary to ensure that water delivered to the
natural system meets applicable water quality standards.
(iii) Project Implementation Reports approved before the date of
promulgation of these regulations or the development of the guidance
memorandum may use whatever method that the Corps of Engineers and the
non-Federal sponsor deem is reasonable and consistent with the
provisions of section 601 of WRDA 2000.
(iv) Nothing in this section is intended to, or shall it be
interpreted to, reserve or allocate water or to prescribe the process
for reserving or allocating water or for water management under Florida
law. Nothing in this section is intended to, nor shall it be
interpreted to, prescribe any process of Florida law.
[[Page 50571]]
Sec. 385.36 Elimination or transfer of existing legal sources of
water.
(a) Pursuant to the provisions of section 601(h)(5)(A) of WRDA
2000, Project Implementation Reports shall include analyses to
determine if existing legal sources of water are to be transferred or
eliminated as a result of project implementation. If implementation of
the project shall cause a transfer or elimination of existing legal
sources of water, then the Project Implementation Report shall include
an implementation plan that ensures that such transfer or elimination
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.
(b) In determining if implementation of a project shall cause an
elimination or transfer of existing legal sources of water, the Corps
of Engineers and the non-Federal sponsor 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; or
(5) Water supply for fish and wildlife.
Sec. 385.37 Flood protection.
(a) General. In accordance with section 601 of WRDA 2000, flood
protection, consistent with restoration, preservation, and protection
of the natural system, is a purpose of the Plan.
(b) Level of service. (1) For each Project Implementation Report,
the level of service for flood protection that:
(i) Was in existence on the date of enactment of section 601 of
WRDA 2000; and
(ii) Is in accordance with applicable law, shall be determined for
the area affected by the project.
(2) The Project Implementation Report shall include analyses to
demonstrate that the level of service for flood protection in paragraph
(b)(1) of this section will not be reduced by implementation of the
project.
(c) Improved and new flood protection benefits. 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. In
preparing the Project Implementation Report, the Corps of Engineers and
the non-Federal sponsor may consider opportunities to provide
additional flood protection consistent with restoration of the natural
system, and the provisions of section 601(f)(2)(B) of WRDA 2000 and
other applicable laws.
Sec. 385.38 Interim goals.
(a) Agreement. The Secretary, the Secretary of the Interior, and
the Governor shall, by December 31, 2003, and in consultation with the
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida,
the Environmental Protection Agency, the Department of Commerce, the
Florida Department of Environmental Protection, and other Federal,
State, and local agencies, and the South Florida Ecosystem Restoration
Task Force, execute an Interim Goals Agreement establishing interim
goals to facilitate inter-agency planning, monitoring and assessment so
as to achieve the overarching objectives of the Comprehensive
Everglades Restoration Plan and to ensure the means by which the
restoration success of the Plan may be evaluated, and ultimately
reported to the Congress pursuant to Sec. 385.40 throughout the
implementation process.
(b) Purpose. (1) Interim goals are targets by which the restoration
success of the Plan may be evaluated at specific points by agency
managers, the State, and Congress throughout the overall planning and
implementation process. In addition, interim goals will facilitate
adaptive management and allow the Corps of Engineers and its non-
federal sponsors opportunities to make adjustments if actual project
performance is less than anticipated, including recommending any
changes to the Plan. Interim goals are not intended to be standards or
schedules enforceable in court.
(2) To ensure flexibility in implementing the Plan over the next
several decades, and to ensure that interim goals may reflect changed
circumstances or new information resulting from adaptive management,
the interim goals may be modified, consistent with the processes set
forth in paragraph (c) of this section, to reflect new information
resulting from changed or unforeseen circumstances, new scientific or
technical information, new or updated models, or information developed
through the adaptive assessment principles contained in the Plan, or
future authorized changes to the Plan.
(3) The Corps of Engineers and the South Florida Water Management
District and other non-Federal sponsors shall sequence and schedule
projects as necessary to achieve the interim goals and the targets for
achieving progress towards other water-related needs of the region
provided for in the Plan, to the extent practical given funding,
technical, or other constraints.
(4) If the interim goals have not been met or are unlikely to be
met, then the Corps of Engineers and the South Florida Water Management
District shall:
(i) Document why the interim goals have not been met or are
unlikely to be met and either
(ii) Develop a plan of action that achieves the interim goals as
soon as practical consistent with the other objectives of the Plan, and
initiate adaptive management actions pursuant to Sec. 385.31(c) based
on the plan of action; or
(iii) Recommend changes to the interim goals in accordance with
paragraph (b)(2) of this section.
(c) Process for establishing interim goals. (1) In developing
proposed goals for inclusion in the Interim Goals Agreement, the
Secretary, the Secretary of the Interior, and the Governor, shall be
provided with, and consider, the technical recommendations of RECOVER
and any modifications to those recommendations by the Corps of
Engineers or the South Florida Water Management District. These
recommendations shall be provided no later than June 30, 2003.
Thereafter, the Secretary, the Secretary of the Interior, and the
Governor shall provide a notice of availability of the proposed
agreement to the public in the Federal Register, seek public comments,
and consult with the Miccosukee Tribe of Indians of Florida, the
Seminole Tribe of Florida, the Environmental Protection Agency, the
Department of the Commerce, the Florida Department of Environmental
Protection, and other Federal, State, and local agencies, and the South
Florida Ecosystem Restoration Task Force. After considering comments of
the public and consulted agencies on the proposed agreement, and
incorporating any suggestions that are appropriate and consistent with
the goals and purposes of the Plan, the Secretary, the Secretary of the
Interior, and the Governor, shall execute the final agreement, and
provide a notice of availability to the public in the Federal Register
by no later than December 31, 2003.
(2) In developing its recommendations for interim goals, RECOVER
shall use the principles in paragraph (d) of this section.
(3) The Secretary, Secretary of the Interior, and the Governor
shall review the proposed interim goals agreement at
[[Page 50572]]
a minimum every five years beginning October 1, 2005, to determine if
the Interim Goals should be revised. Thereafter, the Secretary, the
Secretary of the Interior, and the Governor shall revise the interim
goals as appropriate and execute a new agreement every five years.
However, they may revise interim goals whenever appropriate as new
information becomes available. Any revisions to interim goals shall be
adopted consistent with the process established pursuant to this part.
(d) Principles for developing interim goals. (1) RECOVER, using
best available science and information, shall recommend a set of
interim goals for implementation of CERP, consisting of regional
hydrologic performance targets, improvements in water quality, and
anticipated ecological responses for areas such as, Lake Okeechobee,
the Kissimmee River Region, the Water Conservation Areas, the Lower
East Coast, the Upper East Coast, the Everglades Agricultural Area, and
the Caloosahatchee River, Everglades National Park, Big Cypress
National Preserve, and the estuaries. These interim goals shall reflect
the incremental accomplishment of the expected performance level of the
Plan, and will identify improvements in quantity, quality, timing and
distribution of water in five-year increments beginning in 2005. The
interim goals shall be predicted by appropriate models and tools and
shall provide a quantitative basis for evaluating the restoration
success of the Plan during the period of implementation. The expected
performance level of the Plan is generally represented by the output of
the model run of D-13R as described in the ``Final Integrated
Feasibility Report and Programmatic Environmental Impact Statement''
dated April 1, 1999, as modified by section 601 of WRDA 2000, or any
subsequent modification authorized in law. In developing the interim
goals for the five-year increments, RECOVER shall use the Master
Implementation Sequencing Plan as the basis for predicting the
increments. RECOVER may recommend additional interim goals for
implementation of CERP in addition to those initially developed and may
propose revisions to the initial set of hydrologic interim goals as new
information is gained through adaptive management.
(2) In developing its recommendations for interim goals, RECOVER
shall consider indicators including, but not limited to:
(i) Hydrologic indicators, including:
(A) The amount of water, in addition to the pre-CERP baseline and
assumptions regarding without project conditions, which will be
available to the natural system;
(B) Hydroperiod targets in designated sample areas throughout the
Everglades;
(C) The changes in the seasonal and annual overland flow volumes in
the Everglades which will be available to the natural system;
(D) The frequency of extreme high and low water levels in Lake
Okeechobee;
(E) The frequency of meeting salinity envelopes for the St. Lucie
and Caloosahatchee estuaries; and
(ii) Improvement in water quality; and
(iii) Ecological responses, including:
(A) Increases in total spatial extent of restored wetlands;
(B) Improvement in habitat quality; and
(C) Improvement in native plant and animal abundance.
(3) In developing the interim goals based upon water quality and
expected ecological responses, the Secretary of the Army, the Secretary
of the Interior, and the Governor shall take into consideration the
extent to which actions undertaken by federal, state, tribal, and other
entities under programs not within the scope of this part may effect
achievement of the goals.
Sec. 385.39 Evaluating Progress on achieving other water-related needs
of the region Provided for in the Plan.
(a) Purpose. (1) The overarching objective of the Plan is the
restoration, preservation, and protection of the South Florida
ecosystem while providing for other water-related needs of the region,
including water supply and flood protection. Progress towards providing
for these other water-related needs shall also be evaluated.
(2) As provided for in paragraph (b) of this section, the Corps of
Engineers and the South Florida Water Management District shall
establish targets for evaluating progress towards achieving other
water-related needs of the region, including water supply and flood
protection, throughout the implementation process.
(3) The Corps of Engineers and the South Florida Water Management
District and other non-Federal sponsors shall sequence and schedule
projects as necessary to achieve the targets for other water-related
needs of the region provided for in the Plan, consistent with the
interim goals established pursuant to Sec. 385.38, to the extent
practical given funding, technical, or other constraints.
(4) If the targets for evaluating progress towards achieving other
water-related needs of the region have not been met or are unlikely to
be met, then the Corps of Engineers and the South Florida Water
Management District shall:
(i) Document why the targets have not been met or are unlikely to
be met; and either
(ii) Develop a plan of action that achieves the targets as soon as
practical consistent with the purposes of the Plan and initiate
adaptive management actions pursuant to Sec. 385.31(c) based on the
plan of action; or
(iii) Adopt changes to the targets in accordance with paragraph
(b)(3) of this section.
(b) Process for establishing targets. (1) Not later than June 30,
2003 RECOVER shall develop recommendations on targets to evaluate
progress on achieving the other water-related needs of the region, for
consideration by the Corps of Engineers and the South Florida Water
Management District, in consultation with the Department of the
Interior, the Miccosukee Tribe of Indians of Florida, the Seminole
Tribe of Florida, the Environmental Protection Agency, the Department
of Commerce, the Florida Department of Environmental Protection, and
other Federal, State, and local agencies. The Corps of Engineers and
the South Florida Water Management District shall also consult with the
South Florida Ecosystem Restoration Task Force in establishing targets
for evaluating progress towards achieving other water-related needs of
the region provided for in the Plan. These targets shall be established
by the Corps of Engineers and the South Florida Water Management
District by December 30, 2003. Targets for evaluating progress towards
achieving other water-related needs of the region provided for in the
Plan are intended to facilitate inter-agency planning, monitoring, and
assessment throughout the implementation process and are not intended
to be standards or schedules enforceable in court.
(2) In accordance with Sec. 385.18, the Corps of Engineers and the
South Florida Water Management District shall provide the public with
opportunities to review and comment on proposed targets.
(3) The Corps of Engineers and the South Florida Water Management
District shall review the targets for evaluating progress towards
achieving the other water-related needs of the region under the Plan at
a minimum every five years beginning in 2005, to determine if they
should be revised, and revise them as appropriate. However, they may
revise the targets for achieving the other water-related needs of the
[[Page 50573]]
region whenever appropriate as new information becomes available.
(c) Principles for evaluating progress. (1) RECOVER, using best
available science and information, shall recommend a set of targets for
evaluating progress on achieving other water-related needs of the
region provided for in the Plan. These targets shall reflect the
incremental accomplishment of the expected performance level of the
Plan, and will identify improvements in quantity, quality, timing and
distribution of water in five-year increments beginning in 2005. The
targets shall be predicted by appropriate models and tools and shall
provide a quantitative basis for evaluating progress on achieving other
water-related needs of the region provided for in the Plan during the
period of implementation. The expected performance level of the Plan is
generally represented by the output of the model run of D-13R as
described in the ``Final Integrated Feasibility Report and Programmatic
Environmental Impact Statement'' dated April 1, 1999, as modified by
section 601 of WRDA 2000, or any subsequent modification authorized in
law. In developing the targets for the five-year increments, RECOVER
shall use the Master Implementation Sequencing Plan as the basis for
predicting the increments. RECOVER may recommend additional targets for
implementation of CERP in addition to those initially developed and may
propose revisions to the initial set of hydrologic targets as new
information is gained through adaptive management.
(2) In developing its recommendations for targets, RECOVER shall
consider the following indicators, but not limited to:
(i) The frequency of water restrictions in the Lower East Coast
Service Areas at each time increment.
(ii) The frequency of water restrictions in the Lake Okeechobee
Service Areas at each time increment.
(iii) The frequency of meeting salt-water intrusion protection
criteria for the Lower East Coast Service Area at each time increment.
Sec. 385.40 Reports to Congress.
(a) Beginning on October 1, 2005 and periodically thereafter until
October 1, 2036, the Secretary and the Secretary of the Interior shall
jointly submit to Congress a report on the implementation of the Plan
as required by section 601(l) of WRDA 2000. Such reports shall be
completed not less often than every 5 years.
(b) This report shall be prepared in consultation with the
Environmental Protection Agency, the Department of Commerce, the
Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida,
the Florida Department of Environmental Protection, the South Florida
Water Management District, and other Federal, State, and local agencies
and the South Florida Ecosystem Restoration Task Force.
(c) Such reports shall include a description of planning, design,
and construction work completed, the amount of funds expended during
the period covered by the report, including a detailed analysis of the
funds expended for adaptive management, and the work anticipated over
the next 5-year period and updated estimates of total CERP cost and
individual component costs and an explanation of any changes from the
initial estimates contained in the ``Final Integrated Feasibility
Report and Programmatic Environmental Impact Statement,'' dated April
1, 1999.
(d) In addition, each report shall include:
(1) The determination of each Secretary, and the Administrator of
the Environmental Protection Agency, concerning the benefits to the
natural system and the human environment achieved as of the date of the
report and whether the completed projects of the Plan are being
operated in a manner that is consistent with the requirements of
section 601(h) of WRDA 2000;
(2) Progress towards the interim goals established in accordance
with Sec. 385.38;
(3) Progress towards achieving targets for other water-related
needs of the region provided for in the Plan established pursuant
Sec. 385.39; and
(4) A review of the activities performed by the Secretary pursuant
to section 601(k) of WRDA 2000 and Sec. 385.18 and Sec. 385.19 as they
relate to socially and economically disadvantaged individuals and
individuals with limited English proficiency.
(e) The discussion on interim goals in the periodic reports shall
include:
(1) A discussion of the performance that was projected to be
achieved in the last periodic report to Congress;
(2) A discussion of the steps taken to achieve the interim goals
since the last periodic Report to Congress and the actual performance
of the Plan during this period;
(3) If performance did not meet the interim goals, a discussion of
the reasons for such shortfall;
(4) Recommendations for improving performance; and
(5) The interim goals to be achieved in the next five years,
including any revisions to the interim goals, reflecting the work to be
accomplished during the next five years, along with a discussion of
steps to be undertaken to achieve the interim goals.
(f) In preparing the report to Congress required pursuant to this
section, the Corps of Engineers and the Department of the Interior
shall provide an opportunity for public review and comment, in
accordance with Sec. 385.18.
Appendix A to Part 385--Illustrations to Part 385
BILLING CODE 3710-92-P
[[Page 50574]]
[GRAPHIC] [TIFF OMITTED] TP02AU02.000
[[Page 50575]]
[GRAPHIC] [TIFF OMITTED] TP02AU02.001
[FR Doc. 02-19240 Filed 8-1-02; 8:45 am]
BILLING CODE 3710-92-C