[Federal Register Volume 68, Number 218 (Wednesday, November 12, 2003)]
[Rules and Regulations]
[Pages 64200-64249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27968]



[[Page 64199]]

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Part II





Department of Defense





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 Department of the Army, Corps of Engineers



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33 CFR Part 385



Programmatic Regulations for the Comprehensive Everglades Restoration 
Plan; Final Rule

  Federal Register / Vol. 68, No. 218 / Wednesday, November 12, 2003 / 
Rules and Regulations  

[[Page 64200]]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 385

RIN 0710-AA49


Programmatic Regulations for the Comprehensive Everglades 
Restoration Plan

AGENCY: Army Corps of Engineers, DOD.

ACTION: Final rule.

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SUMMARY: The Army promulgates this final rule to establish programmatic 
regulations for the Comprehensive Everglades Restoration Plan. Congress 
approved the Comprehensive Everglades Restoration Plan in section 601 
of the Water Resources Development Act of 2000, which was enacted into 
law on December 11, 2000. The Act requires the Secretary of the Army to 
promulgate programmatic regulations to ensure that the goals and 
purposes of the Comprehensive Everglades Restoration Plan are achieved. 
We have developed this final rule in response to that statutory 
requirement. The rule establishes processes and procedures that will 
guide the Army Corps of Engineers in the implementation of the 
Comprehensive Everglades Restoration Plan.
    Today's action completes a rulemaking that began on August 2, 2002 
with the publication of proposed regulations. The final rule contain a 
number of revisions that respond to public comments on the proposed 
regulations.

DATES: This rule is effective December 12, 2003.

FOR FURTHER INFORMATION CONTACT: Stu Appelbaum, Corps of Engineers, 
Jacksonville District, at the above address by telephone (904) 232-
1877, or by fax (904) 232-1434. You may also access the programmatic 
regulations Web page at: http://www.evergladesplan.org/pm/progr_regs.cfm/.

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 601(h)(3) of the Water Resources Development Act of 2000, 
Public Law 106-541 (114 Stat. 2688) (hereinafter ``WRDA 2000'') 
requires the Secretary of the Army, after notice and opportunity for 
public comment, to promulgate regulations to ensure that the goals and 
purposes of the Comprehensive Everglades Restoration Plan (the Plan) 
are achieved. These final regulations fulfill this requirement and 
establish the administrative structure for carrying out the Plan.
    The programmatic regulations establish a process: for the 
development of Project Implementation Reports, Project Cooperation 
Agreements, and Operating Manuals that will ensure that the goals and 
the objectives of the Comprehensive Everglades Restoration Plan (CERP) 
are achieved; to ensure that new information resulting from changes or 
unforeseen circumstances, new scientific or technical information or 
information that is developed through the principles of adaptive 
management contained in the Plan, and future authorized changes to the 
Plan will be integrated into the implementation of the Plan; and, to 
ensure the protection of the natural system consistent with the goals 
and purposes of the Plan, including the establishment of interim goals 
to provide a means by which the restoration success of the Plan will be 
evaluated throughout the implementation process.
    The programmatic regulations recognize that the Everglades are a 
critical national resource in which the public has an important 
interest. Restoration of the Everglades involves many complicated 
issues involving ecosystem restoration, other water-related needs of 
the region, novel scientific and technical information and technology, 
and adaptive management. The final regulations envision a comprehensive 
process to involve the public, and the agencies that represent them, in 
important decisions involved in implementing the project.
    In general, the programmatic regulations envision that the goals 
and purposes of the Plan will be achieved through the development of 
project-specific and system-wide measures. Project specific measures 
include but are not limited to Project Implementation Reports, Project 
Cooperation Agreements, Pilot Project Technical Data Reports, and 
Operating Manuals. The more generally applicable system-wide measures 
include, but are not limited to, the development of guidance memoranda, 
the Master Implementation Sequencing Plan, interim goals for evaluating 
the restoration success of the Plan, and interim targets for evaluating 
progress towards achieving other water-related needs of the region, 
including water supply and flood protection. The interim goals for 
evaluating the restoration success of the Plan and interim targets for 
other water-related needs are of special significance. They establish 
incremental targets to evaluate progress toward the expected level of 
performance of the Plan and are used to monitor overall progress toward 
meeting the goals and purposes of the Plan. Taken together, the project 
specific and system-wide measures form the foundation of the Plan and 
are critical to the successful restoration of the South Florida 
ecosystem.
    The South Florida ecosystem is a nationally and internationally 
unique and important natural resource. It is also a resource in peril, 
having been severely affected by human activities for over a hundred 
years. The Central and Southern Florida Project extends from south of 
Orlando to the Florida Keys and is composed of a regional network of 
canals, levees, water storage areas, and water control structures. 
First authorized by Congress in 1948, the project serves multiple 
objectives. The objectives of the project include flood control, 
regional water supply for agricultural and urban areas, prevention of 
salt water intrusion, water supply to Everglades National Park, 
preservation of fish and wildlife, recreation, and navigation. While 
fulfilling these objectives, the project has had unintended adverse 
effects on the unique natural environment that constitutes the 
Everglades and South Florida ecosystem. In 1996, the Army Corps of 
Engineers was directed to develop a comprehensive plan to restore, 
preserve, and protect South Florida's natural ecosystem while providing 
for the water-related needs of the region, including flood control, the 
enhancement of water supplies, and other objectives of the Central and 
South Florida Project. The resulting plan, which was submitted to 
Congress on July 1, 1999, is called the Comprehensive Everglades 
Restoration Plan.
    The overarching goal of the Plan is the restoration, preservation, 
and protection of the South Florida ecosystem while providing for other 
water-related needs of the region, such as flood protection and water 
supply. As submitted to Congress, the Plan contained 68 major 
components that anticipated the creation of approximately 217,000 acres 
of reservoirs and wetland-based water treatment areas, wastewater reuse 
plants, seepage management, and the removal of levees and canals in 
natural areas. These components vastly increase storage and water 
supply for the natural system, as well as for urban and agricultural 
needs, while continuing to fulfill the original objectives of the 
existing Central and Southern Florida Project. The Comprehensive 
Everglades Restoration Plan will restore more natural flows of water, 
including sheet flow; improve water quality; and

[[Page 64201]]

establish more natural hydroperiods in the South Florida ecosystem. 
Improvements to fish and wildlife habitat, including those that benefit 
threatened and endangered species, are expected to occur as a result of 
the restoration of hydrologic conditions. This will promote the 
recovery of native flora and fauna, including threatened and endangered 
species.
    In enacting section 601 of WRDA 2000, Congress approved the 
Comprehensive Everglades Restoration Plan as a framework for 
modifications to the Central and Southern Florida Project. Section 601 
of WRDA 2000 contains a variety of provisions associated with 
implementation of the Comprehensive Everglades Restoration Plan, 
including an authorization for the construction of four pilot projects 
and ten initial projects of the Comprehensive Everglades Restoration 
Plan.
    Section 601(h) of WRDA 2000 states, ``the overarching objective of 
the Plan is the restoration, preservation, and protection of the South 
Florida ecosystem while providing for other water-related needs of the 
region, including water supply and flood protection.'' This section 
directs that the Plan be implemented to ensure the protection of water 
quality in, the reduction of the loss of fresh water from, and the 
improvement of the environment of the South Florida Ecosystem. 
Implementation of the Plan also seeks to achieve and maintain the 
benefits to the natural system and human environment described in the 
Plan.
    Section 601(h)(2) of WRDA 2000 requires the President and Governor 
to enter into a binding agreement ensuring that the water generated by 
the Plan will be made available to the natural system. The President 
and Governor signed this agreement on January 9, 2002. The agreement 
specifies that the State will ensure by regulation, or other 
appropriate means, that water made available by each project in the 
Plan will not be permitted for a consumptive use or otherwise made 
unavailable by the State until such time as sufficient reservations of 
water for the restoration of the natural system are made under State 
law in accordance with the Project Implementation Report for that 
project and consistent with the Plan. This agreement also specifies 
that the State will monitor and assess the continuing effectiveness of 
reservations as long as the project is authorized in order to achieve 
the goals and objectives of the Plan.
    Section 601(h)(3) of WRDA 2000 requires that the Secretary of the 
Army, after notice and opportunity for public comment, and with the 
concurrence of the Governor of Florida and the Secretary of the 
Interior, and in consultation with the Miccosukee Tribe of Indians of 
Florida, the Seminole Tribe of Florida, the Administrator of the 
Environmental Protection Agency, the Secretary of Commerce, and other 
Federal, State, and local agencies, issue programmatic regulations 
within two years of the date of enactment of WRDA 2000 to ensure that 
the goals and purposes of the Plan are achieved. This regulation is 
promulgated in furtherance of these statutory requirements.
    Section 601(h)(4) of WRDA 2000 describes the project specific 
assurance requirements for Project Implementation Reports, Project 
Cooperation Agreements, and Operating Manuals. Finally, section 
601(h)(5) contains a savings clause that provides protection for 
existing legal sources of water that will be eliminated or transferred 
due to project implementation and provides for maintenance of the 
levels of service for flood protection that were in existence on the 
date of enactment of WRDA 2000 and in accordance with applicable law.

II. Process for Developing the Programmatic Regulations

    The Department of the Army developed the programmatic regulations 
through an open and inclusive process that involved numerous meetings, 
briefings, and discussions with other Federal, State, and local 
agencies; the Miccosukee Tribe of Indians of Florida and the Seminole 
Tribe of Florida; agricultural, environmental, urban utilities, 
recreational, and urban interest groups; and the public. Briefings on 
the programmatic regulations were provided to the Governing Board of 
the South Florida Water Management District and its Water Resources 
Advisory Commission and the South Florida Ecosystem Restoration Task 
Force and its Working Group. In addition, programmatic regulations web 
pages were developed and posted on the Comprehensive Everglades 
Restoration Plan web site (www.evergladesplan.org). The web site was 
used to disseminate information about the programmatic regulations and 
to provide a place for individuals and organizations to submit comments 
electronically during the development of the programmatic regulations. 
This was designed to identify the major concerns of the agencies and 
various groups, prior to publishing the proposed regulations and 
soliciting formal public comment.
    The Army held an opening round of meetings with agencies, interest 
groups, and the public in May and June 2001. The purpose of these 
meetings was to discuss the process that would be used to develop the 
programmatic regulations and to solicit comments on the major issues 
and concerns that should be addressed in developing the regulations.
    Following this initial round of meetings, the Army developed a 
draft outline of the programmatic regulations. We then held a second 
round of meetings in September and October 2001 with agencies, interest 
groups, and the public to solicit comments on the outline. We also 
consulted with the Miccosukee Tribe of Indians of Florida and the 
Seminole Tribe of Florida, and sought their comments on the draft 
outline.
    After the second round of meetings, we developed an initial draft 
of the programmatic regulations. We distributed this initial draft to 
the public on December 28, 2001, and allowed informal public comment 
until February 15, 2002. We then held meetings with agencies, tribes, 
and interest groups, to discuss the initial draft. We also received 
written comments on the initial draft that were posted on the 
programmatic regulations web site. In addition, the Water Resources 
Advisory Commission formed a subcommittee on the programmatic 
regulations. The subcommittee met several times to discuss issues 
concerning the initial draft and potential ways of addressing these 
issues. The South Florida Ecosystem Restoration Task Force also met 
several times after the release of the initial draft to discuss the 
programmatic regulations.
    The proposed rule was published in the Federal Register on August 
2, 2002 and the public was allowed to submit comments on the 
regulations until October 1, 2002. During the comment period, we held a 
public meeting in Miami on September 10, 2002 and a public meeting in 
West Palm Beach on September 19, 2002. We also consulted with the 
Miccosukee Tribe of Indians of Florida and the Seminole Tribe of 
Florida and held a number of informal meetings with interested groups. 
The comments submitted on the proposed rule and the transcripts of the 
two public meetings were posted on the programmatic regulations web 
site after the close of the public comment period.
    On February 6, 2003, the Council for Environmental Quality hosted a 
public meeting in Washington. The purpose of the public meeting, which 
was facilitated by the Council on Environmental Quality, was to provide 
an opportunity for interested parties to clarify comments filed on the 
proposed rule. Representatives of the Department

[[Page 64202]]

of the Army, the Department of the Interior, and the State, as well as 
representatives of other Federal agencies were in attendance to listen 
to these views. Additionally, the meeting afforded attendees an 
opportunity to engage directly with each other. This open dialogue was 
especially useful in developing a thorough understanding of the 
parties' views.
    This final rule was developed after considering all of the 
information received at the meetings, as well as written comments that 
were received from agencies, interest groups, and the public.

III. Discussion of Final Rule

    We received approximately 820 comments on the proposed regulations 
issued on August 2, 2002. Of these comments, approximately 800 were 
individual or form letters from the public. In general, these letters 
requested that the proposed regulations be revised to: give the 
Department of the Interior a greater voice in approving CERP documents 
and participating in RECOVER; to strengthen the independence of the 
independent scientific review panel to ensure that its reviews are 
objective, and to incorporate the interim goals in the final 
regulations. We also received approximately 25 letters from various 
types of organizations, members of Congress, Federal, State, and local 
agencies, the Miccosukee Tribe of Indians of Florida, and the Seminole 
Tribe of Florida. These letters included detailed comments on the 
recommendations and specific proposals for revisions in a number of 
areas.
    All of the comments were generally supportive of the effort to 
issue final regulations. We have carefully considered all of these 
comments in developing today's final rule. The following paragraphs 
include a description of the significant issues raised by these 
comments and a discussion of how these issues were addressed in the 
final regulations. In reviewing these comments, we sought to reconcile 
different points of view and to find consensus solutions to common 
concerns. In a few instances this was not possible because the parties 
simply held diametrically opposing views. In these instances, our 
decisions on proposed revisions were guided by our judgment as to what 
would best fulfill Congressional intent with respect to the goals and 
purposes of CERP. The final rule remains similar to the proposed rule 
in organization and structure, but contains the substantive and 
editorial changes that were made to address the issues raised by the 
comments. The Army is confident that these final programmatic 
regulations provide an excellent framework for the implementation of 
CERP as envisioned by Congress.

IV. Discussion of Comments

A. Amount of Detail in the Proposed Regulations

    A number of commenters shared their views on the appropriate level 
of detail that should be contained in the regulations. Some commenters 
believed that the programmatic regulations should be very detailed and 
directive in terms of specific procedures and outcomes. Others believed 
that the programmatic regulations should be process-oriented and 
provide a general framework for implementing CERP. A few of these 
commenters also expressed concern that the Federal regulations not 
infringe on the sovereignty of the State of Florida or its right to 
allocate its water resources. Others sought to ensure that the 
regulations safeguard the Federal interest and investment in 
restoration, preservation, and protection of the South Florida 
ecosystem, including Federal properties within South Florida, such as 
national parks and wildlife refuges.
    The final regulations attempt to recognize these diverse views. We 
made a number of changes to the proposed rule in order to clarify the 
procedures and processes specified in the regulations to ensure that 
the goals and purposes of the Plan are achieved. As in the proposed 
rule, the final regulations also call for the development of detailed 
guidance memoranda in the future to specifically address issues of 
system-wide import. In striking a balance between process and 
specificity, we strove to address those matters that could be 
specifically dealt with now while avoiding being so prescriptive that 
we would lose the flexibility to respond to new technical and 
scientific information revealed during implementation of the Plan.

B. Guidance Memoranda

    A number of commenters raised concerns about the guidance memoranda 
described in the proposed regulations. These concerns varied but, in 
general, related to either the substantive matters addressed in the 
guidance memoranda or the process for finalizing the guidance 
memoranda. Some commenters felt that the concurrence provisions 
contained in the proposed regulations would delay finalizing the 
guidance memoranda. Others felt that the concurrence provisions in the 
proposed regulations did not give the Secretary of the Interior or the 
Governor of Florida an appropriate role in approving the guidance 
memoranda because it appeared that the Secretary of the Army could 
finalize these documents after giving good faith consideration to 
comments from the Department of the Interior and the Governor, 
notwithstanding the fact that either or both officials had concerns 
about finalizing the regulations.
    Some commenters believed that the scheduled completion dates for 
developing the guidance memoranda were unrealistic and should be 
changed. Others expressed the view that issues addressed in the 
guidance memoranda should be covered in the programmatic regulations. 
In addition, they were concerned that the guidance memoranda did not 
have the same legal status as the programmatic regulations and thus 
would not have the same legal import. These commenters stated that if 
the material intended for inclusion in the guidance memoranda was not 
included in the final rule then the guidance memoranda should be 
included in the programmatic regulations at the next revision. Several 
commenters also believed that the proposed regulations gave an 
inappropriate role to the South Florida Water Management District in 
the development of the guidance memoranda. One commenter requested that 
an additional guidance memorandum be developed to provide a procedure 
for determining if implementation of a project will cause the 
elimination or transfer of existing legal sources of water. The 
Seminole Tribe commented that ``existing legal source'' of water is a 
new concept not found in Florida statutes or regulations. The Tribe 
requested that the programmatic regulations set up a process for 
defining ``existing legal source'' of water and addressing how an 
``existing legal source'' of water would be replaced to comply with the 
savings clause.
    The comments reflected a difference of opinion with respect to 
whether certain issues should be addressed in the guidance memoranda or 
the programmatic regulations and whether the Department of the Interior 
and the Governor of Florida should have concurrence over the guidance 
memoranda, as they do with regard to the programmatic regulations. Some 
of the commenters believe that the issues that are proposed for 
discussion in the guidance memoranda should be included in the 
regulations because they cover processes and matters of system-

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wide applicability. Alternatively, they believe that if guidance 
memoranda must be developed, they should later be incorporated into the 
regulations. These commenters believe that for these reasons the 
Secretary of the Interior and the State of Florida should have a 
concurrence right in the guidance memoranda regardless of whether the 
guidance memoranda are included in the regulations. Other commenters 
expressed the view that guidance memoranda should not be included in 
the regulations because they address technical or detailed matters 
instead of the system-wide procedural matters Congress intended would 
be addressed in the programmatic regulations. These commenters believed 
that it would be inappropriate to give the Secretary of the Interior 
and the Governor of Florida a concurrence right over these documents 
because the statute authorizing CERP provides for concurrence in the 
programmatic regulations only.
    The final regulations contain revisions in response to these 
comments. In attempting to address the views of those who commented 
that the Secretary of the Interior and Governor of Florida should be 
given a greater role in the development of the guidance memoranda and 
that the South Florida Water Management District had an inappropriate 
role in developing the guidance memoranda, the final rule clarifies 
that the South Florida Water Management District and the Corps of 
Engineers work together in developing the guidance memoranda but the 
final approval is by the Secretary of the Army, after public notice and 
comment and with the concurrence of the Secretary of the Interior and 
the Governor of Florida. We believe that this change in the regulations 
assures that the South Florida Water Management District plays an 
important role in the development of the guidance memorandum, but 
preserves the ability of the Secretary of the Army to make a final 
decision on the guidance memorandum with the concurrence of the 
Secretary of the Interior and the Governor.
    The approval process for the guidance memoranda parallels the 
statutory concurrence process for the programmatic regulations. We 
deleted the language in the proposed regulations that said the Army 
would give ``good faith consideration'' to the concurrence or non-
concurrence statements of the Secretary of the Interior and the 
Governor before approving the guidance memoranda. Our intent is to 
issue guidance memoranda that have been concurred in by the Secretary 
of the Interior and the Governor. We agree that the old language in the 
proposed regulations did not communicate adequately this intent. 
Instead, it suggested that the Army simply had to fulfill a ministerial 
coordination requirement by asking the Secretary of the Interior and 
the Governor whether they concurred or non-concurred in the guidance 
memorandum. This language did not convey the Army's intent to actively 
seek the concurrence of the Secretary of the Interior and the Governor 
prior to approving the guidance memoranda. The new language gives the 
Secretary of the Interior and the Governor the same concurrence 
opportunity they have on the programmatic regulations and assures that 
they have an appropriate role in the Department of the Army's adoption 
of these important documents. While concurrence or non-concurrence on 
the six guidance memoranda in Sec.  385.5(b) is not required by law and 
will require additional time to fulfill, we believe it is appropriate 
to provide for this process because of the significance of these 
documents.
    We believe that the public should have an opportunity to review and 
comment on the guidance memoranda because of their significance. 
Accordingly, the final regulations state that the public will be 
advised by notice in the Federal Register when the guidance memoranda 
are ready for review and comment. The final rule requires that the 
guidance memoranda should be developed within a year of the effective 
date of the programmatic regulations with the concurrence of the 
Secretary of the Interior and the Governor.
    We have determined that the guidance memoranda should not be 
included in the programmatic regulations at this time for several 
reasons. First, they are still being developed, second, they will be 
very technical, and third, they will provide internal guidance to the 
agencies implementing CERP. This decision is consistent with the view 
of commenters who felt that including the guidance memoranda in the 
programmatic regulations was incompatible with structured, formal rule-
making processes. These commenters felt that rulemaking processes would 
not accommodate recurring revisions to published technical documents, 
like the guidance memoranda, which will require periodic changes to 
accommodate new information. These commenters were concerned that if 
guidance memoranda were included in these regulations, every revision 
of them would require us to initiate a rulemaking process. While we 
determined that the guidance memoranda should not be included in the 
programmatic regulations at this time, we preserve the opportunity to 
include the guidance memoranda in the programmatic regulations during 
the next review and revision of the programmatic regulations.
    The final regulations no longer contemplate that a separate 
guidance memorandum will be developed for the system-wide evaluation of 
Project Implementation Report alternatives by RECOVER. We concluded 
that this subject should be addressed in the guidance memorandum for 
the formulation and evaluation of alternatives for Project 
Implementation Reports and that a separate guidance memorandum on this 
subject was unnecessary.
    The final regulations also require the development of an additional 
guidance memorandum that will be used by agency personnel to identify 
if an elimination or transfer of ``existing legal sources of water'' 
will occur as a result of implementation of the Plan. This guidance 
memorandum will ensure the fulfillment of the savings clause 
requirements of section 601 (h)(5)(a) of WRDA 2000 that are designed to 
ensure that ``existing legal sources of water'' are preserved. There 
was general agreement among commenters that a definition is required 
for the phrase, ``existing legal sources of water'' but there was wide 
disagreement among the commenters about what the phrase actually means 
or who determines what an ``existing legal source of water'' is. The 
term is not defined in WRDA 2000 or elsewhere in Federal or Florida 
State law. Some commenters felt the term should include all water in 
the South Florida ecosystem that was not discharged to tide at the time 
WRDA 2000 was enacted. Other commenters emphasized that the term used 
in the statute, ``existing legal sources'' is a broad term which 
indicates that all water in the South Florida ecosystem should be 
covered by the requirements of the savings clause. Several commenters 
felt that the determination of what constitutes an ``existing legal 
source of water'' is not a decision for the Secretary of the Army to 
make. They argued that the Secretary of the Army should defer to the 
State of Florida on this issue because the determination of what 
constitutes an existing legal source of water involves a matter of 
state law. The new guidance memorandum contemplated in the regulations 
will establish procedures for identifying what constitutes ``an 
existing legal source of water'' and for determining

[[Page 64204]]

when an existing legal source of water has been eliminated or 
transferred.

C. Goals and Purposes of the Plan

    The comments reflected different views on the goals and purposes of 
the Plan. A number of commenters felt the proposed regulations did not 
place enough emphasis on the restoration objectives of the Plan and 
recommended that the regulations be revised to clearly state that the 
restoration objectives of the Plan are a priority. Another commenter 
believed that the language in the proposed regulations concerning the 
goals and purposes of the Plan was vague. This commenter suggested that 
the language be replaced with the description of the goals and 
objectives of the Plan contained in the April 1999 ``Final Integrated 
Feasibility Report and Programmatic Environmental Impact Statement.'' 
Finally, several commenters believed that the regulation should include 
all of the goals and purposes of the Plan, including providing for 
other water-related needs of the region.
    To respond to these comments we have included a definition of the 
goals and purposes of the Plan in the final regulations that follows 
the language of WRDA 2000. This definition specifies that the 
overarching goal of the Plan is the restoration, preservation, and 
protection of the South Florida ecosystem while providing for other 
water-related needs of the region, including water supply and flood 
protection. We believe the open and collaborative process set forth in 
these regulations for the implementation of the Plan provides the 
greatest assurance that all the goals and the purposes of the Plan will 
be achieved. This regulation emulates the successful, open and 
collaborative process that produced the Comprehensive Everglades 
Restoration Plan and we are confident that these same processes will 
ensure that the goals and purposes of the Plan are fulfilled as 
intended by Congress.
    Several commenters also expressed the view that the proposed 
regulations should not have tied performance of the Plan, and 
particularly the development of interim goals, to the model run 
identified as D-13R in the April 1999 ``Final Integrated Feasibility 
Report and Programmatic Environmental Impact Statement.'' These 
commenters maintained that implementation modeling conducted after 
completion of the feasibility report demonstrated the potential for 
improving the Plan with regard to the restoration of the ecosystem.
    We have removed the references to D-13R in the final regulations 
because we agree that it may be possible to produce ecosystem 
restoration benefits beyond those contemplated in D-13R. We will 
further evaluate the performance of the Plan in accordance with the 
adaptive management provisions of the regulations to determine whether 
it is possible to realize any improvements in the performance of the 
Plan with regard to ecosystem restoration while providing for other 
water-related needs of the region. We will make adjustments to the Plan 
to the extent these improvements can be realized consistent with the 
overall goals and purposes of the Plan. As indicated, we have deleted 
the reference to D-13R in the hope that it may be possible to improve 
the Plan's performance with respect to ecosystem restoration consistent 
with the statutory and budgetary framework approved by Congress.

D. Defining Restoration

    Several commenters expressed concern about the definition of 
restoration contained in the proposed regulations. Some commenters felt 
that restoration should be defined in terms of hydrologic and ecologic 
targets, not the level of performance contained in the April 1999 Final 
Integrated Feasibility Report and Programmatic Environmental Impact 
Statement'' as was contemplated in the proposed regulations. They 
believe that implementing the Plan in accordance with hydrologic and 
ecologic targets, and making adjustments as necessary through adaptive 
management, is a more effective way to ensure that system-wide 
restoration occurs. In particular, the Everglades Coalition commented 
that, ``* * * the yellow book provides only a framework for 
restoration, and does not clearly describe the essential ecological 
characteristics of a sustainable restored Everglades. * * * It is 
necessary to keep the definition of restoration * * * based on 
ecological necessity and not anticipated performance. This structure is 
necessary for the adaptive management process to be successful in 
making meaningful improvements to the plan.'' Another commenter stated 
that the definition of restoration must clearly specify that 
restoration is ``an absolute priority above all others.''
    Other commenters expressed the view that the definition of 
restoration must take into account certain relevant provisions of WRDA 
2000. These commenters point out that the purpose of the Plan was not 
to provide for the restoration of the South Florida ecosystem without 
regard to other considerations. They note that restoration is not an 
open-ended abstract term; WRDA 2000 states that the Plan must take into 
account ``the other water-related needs of the region,'' and contains a 
prohibition against eliminating or transferring ``existing legal 
sources of water'' until new sources of water of comparable quantity 
and quality are available to replace the water that is lost as a result 
of implementation of the Plan. These commenters pointed out that the 
definition of restoration must recognize that Congress authorized the 
Plan as a framework for restoring the South Florida ecosystem and that 
the restoration that actually occurs is a result of the specific 
projects that Congress later authorizes in fulfillment of the Plan.
    Other commenters believed that the definition should recognize the 
important role that ``getting the water right'' plays in restoration. 
Getting the water right involves delivering water to the ecosystem in 
the right quantity and quality at the right time and place. Another 
commenter held a somewhat similar view, believing that the definition 
should emphasize the importance of hydroperiod and water quality in 
fulfilling the restoration objective since natural system conditions 
are a result of water quality and hydroperiod conditions.
    Other commenters expressed the view that the definition of 
restoration in the proposed regulations was not scientifically 
credible. These commenters believed that to be credible from a 
scientific perspective, the definition of restoration must take into 
account other considerations that are relevant to the ecological 
condition of the South Florida ecosystem. For example, state and local 
restoration and water quality programs affect the South Florida 
ecosystem as well. Additionally, some commenters pointed out that there 
is no consensus among scientists about the specific ecological 
parameters that constitute successful ``restoration.'' As an example, 
there is no agreement on what the goal should be for the population of 
specific species of plants, fish, or birds.
    To some extent, the disagreement surrounding the definition of 
restoration reflects the underlying concern of affected parties that 
the definition of restoration will not take their interests into 
account. Certain parties are concerned that if the definition of 
restoration does not assign a proper role to science in fulfilling the 
objectives of the Plan, the implementation of the Plan will be driven 
by political compromises. These parties are concerned that as Federal 
and State governments move forward with implementation of the Plan, the 
restoration goals of the Plan

[[Page 64205]]

will be preempted by water supply and flood protection needs. In this 
regard, the Natural Resources Defense Council urged that the 
programmatic regulations must ``preclude the achievement of water 
supply and flood protection goals at the expense of restoration 
goals.'' Other commenters are concerned that the other water-related 
goals of the region will be ignored in an effort to advance an elusive 
and constantly changing vision of restoration favored by scientists, 
instead of the Plan approved by Congress. All commenters emphasized the 
importance of developing an appropriate definition of restoration so 
that CERP projects are properly sequenced and appropriations wisely 
spent.
    The final regulations contain a new definition of restoration that 
responds to these comments. The regulations define restoration as the 
recovery and protection of the South Florida ecosystem so that it once 
again achieves and sustains the essential hydrological and biological 
characteristics that defined this ecosystem in an undisturbed 
condition. This definition acknowledges that, as authorized by 
Congress, the restored South Florida ecosystem will be significantly 
healthier than the current system but will be smaller and somewhat 
differently arranged than the historic ecosystem. Also, there may be 
different degrees of restoration in different areas of the ecosystem. 
The irreversible physical changes made to the South Florida ecosystem 
make a complete return to the historic ecosystem impossible. However, 
the restored ecosystem will have recovered those essential hydrological 
and biological characteristics that defined the undisturbed South 
Florida ecosystem and made it unique among the world's wetlands 
systems.
    The new definition of restoration recognizes that the restoration 
goal of the Plan is to achieve a healthy and functioning ecosystem that 
once again exhibits the essential characteristics of the undisturbed 
South Florida ecosystem. The definition acknowledges that, as 
authorized by Congress, the restored ecosystem will be different than 
the historic ecosystem. In so doing, the definition affords flexibility 
to allow for adaptive management and the accommodation of other water-
related needs of the region, as the Plan is implemented through 
individual projects specifically authorized by Congress.
    The definition of restoration recognizes implicitly that science 
will be the foundation of restoration, but it also assumes, as noted 
throughout the programmatic regulations, that in all phases of 
implementation of the Plan both restoration and the other goals and 
purposes of the Plan should be achieved. The definition also recognizes 
that we must act within the legislative framework that has been 
approved by Congress in WRDA 2000 and later may be approved by Congress 
in future authorization acts.

E. Amount of Water Provided for Restoration

    Some commenters expressed the view that the regulations must 
include a statement that new water generated by the Plan will be 
reserved for the natural system on an 80%-20% basis. These commenters 
note that the report of the Senate Committee on Environment and Public 
Works on WRDA 2000 (Senate Report No. 106-362) states:

    The Plan contains a general outline of the quantities of water 
to be produced by each project. According to the Army Corps, 80 
percent of the water generated by the Plan is needed for the natural 
system in order to attain restoration goals, and 20 percent of the 
water generated for use in the human environment. * * * Subject to 
future authorizations by Congress, the committee fully expects that 
the water necessary for restoration, currently estimated at 80 
percent of the water generated by the Plan, will be reserved or 
allocated for the benefit of the natural system (Emphasis added).

    These commenters believed that the 80%-20% ratio should be set 
forth in the regulations as a generalized planning goal for reserving 
or allocating new water to the natural system. They are concerned that 
the 80%-20% ratio was not identified in the proposed regulations as a 
planning goal. On a different but related note, several commenters felt 
that a water budget should be developed for the South Florida ecosystem 
to ensure that the restoration goals of the Plan are achieved.
    Other commenters observed that the 80%-20% ratio was merely the 
initial estimate of the new water that would be produced by the Plan 
and therefore, could be allocated or reserved for the benefit of the 
natural system. These commenters maintain that the goal of the Plan is 
to provide whatever water is needed for restoration of the natural 
system, irrespective of the 80%-20% ratio. These commenters point out 
that individual components of the Plan may produce amounts of water 
different from this initial estimate. In fact, some commenters pointed 
out that the 80%-20% ratio was part of a scenario called D-13R4, which 
was not included in the framework Plan (D-13R) authorized by Congress.
    We understand the desire of the commenters to assure sufficient 
water will be allocated or reserved for the benefit of the natural 
system. To accomplish this result, we believe that it is necessary to 
preserve the ability to adapt to new information as the Plan is 
implemented. Therefore, the regulations do not contemplate the 
allocation of water on a rigid 80%-20% basis, either system-wide or 
project-by-project. Instead, the final regulations ensure that adequate 
water will be allocated or reserved for the benefit of the natural 
system without regard to this ratio by requiring that each Project 
Implementation Report evaluate and identify water to be reserved for 
the natural system and made available for other water-related needs of 
the region, and that the Plan itself be continually evaluated through 
adaptive management to assure that adequate water is allocated or 
reserved on a system-wide basis.
    The final rule also provides that the Corps of Engineers and the 
South Florida Water Management District will determine the total 
quantity of water that is expected to be generated by implementation of 
the Plan, including the quantity expected to be generated for the 
natural system to attain restoration goals as well as the quantity 
expected to be generated for use in the human environment, and will 
periodically update that estimate, as appropriate, based upon changed 
or unforeseen circumstances, new scientific and technical information, 
new or updated modeling, and congressionally authorized projects or 
modifications to the Plan. In addition, the final regulations envision 
that a water budget for the Plan will be developed and disseminated 
annually to the public. These regulatory provisions will ensure that 
adequate water will be reserved or allocated to the natural system as 
intended by Congress.

F. Independent Scientific Review and External Peer Review

    A number of commenters were concerned that the proposed regulations 
did not provide for the establishment of an independent scientific 
review panel. They noted that section 601(j) of WRDA 2000 requires that 
the Secretary of the Army, the Secretary of the Interior, and the 
Governor, in cooperation with the Task Force establish an independent 
scientific review panel convened by a body, such as the National 
Academy of Sciences, to review the Plan's progress toward achieving the 
natural system restoration goals of the Plan. These commenters feel 
that the panel must operate independently of the Corps of

[[Page 64206]]

Engineers, the State, and the Department of the Interior and believe 
that the programmatic regulations should address how the implementing 
agencies would work with the panel. One commenter also felt that the 
proposed regulations did not provide an appropriate role for the Task 
Force in the establishment of the independent scientific review panel.
    The Department of the Army embraces the use of independent 
scientific review and external peer review. The successful 
implementation of CERP requires that appropriate decisions be made 
about significant scientific and technical issues. These extremely 
technical, often controversial, issues will be presented in various 
reports and documents generated by numerous sources, including the 
Corps of Engineers, the South Florida Water Management District, 
Everglades National Park, the Fish and Wildlife Service, the Florida 
Fish and Wildlife Conservation Commission, and various Federal, State, 
and local agencies. Independent scientific review and external peer 
review will ensure that the decisions made in implementing CERP are 
based on appropriate data and sound science that is clearly presented 
to decision makers.
    There was some confusion evident in comments and public meetings 
regarding the panel that will be established to perform the section 
601(j) functions and other independent scientific review, particularly 
the standing panel currently used by the South Florida Ecosystem 
Restoration Task Force (Task Force). In February 1999, the Task Force 
endorsed ``the establishment of an ongoing outside scientific review 
panel * * * as an essential component to ensure an effective adaptive 
management process for South Florida Ecosystem restoration.'' In 
September 1999, in fulfillment of the Task Force's resolution, the 
Department of the Interior entered into a five-year cooperative 
agreement with the National Academy of Sciences (NAS) to establish the 
Committee on Restoration of the Greater Everglades Ecosystem (CROGEE). 
CROGEE provides scientific advice to the Task Force and its member 
agencies and that the Committee will review and make recommendations on 
the scientific and technical aspects and elements relating to the South 
Florida ecosystem.
    The section 601(j) panel will be independent of CROGEE or any other 
panel. Its only mission will be to carry out section 601(j).
    Acting on a proposal from the Department of the Army, the Secretary 
of the Army, the Secretary of the Interior, and the Governor, in 
consultation with the South Florida Ecosystem Restoration Task Force, 
agreed to designate the National Academy of Sciences to convene the 
initial independent scientific panel that will perform the tasks 
required by Section 601(j) of the Water Resources Development Act of 
2000. The final regulations contain new language that identifies the 
National Academy of Sciences as the entity that will convene the 
initial independent scientific review panel. These regulations also 
acknowledge that the South Florida Ecosystem Restoration Task Force has 
played a role in choosing the National Academy of Science as the 
initial organization to convene the panel, and the Task Force will play 
a role in the establishment of the panel. The final regulations state 
that we will enter into an agreement with the National Academy of 
Sciences to convene the independent scientific review panel. This 
agreement shall be for a period of five years with options for 
extensions in five-year increments. The final regulations include a 
statement recognizing that independent scientific review is crucial for 
ensuring that the best available science is used in the implementation 
of the Plan. The regulations recognize the continuing role of the Task 
Force to consult on decisions to exercise the option to extend the 
agreement. The regulations recognize the continuing role of the Task 
Force in designation of the organization to convene future panels and 
to consult on establishment of the panel upon expiration of the initial 
agreement.
    The final regulations state that the Secretary of the Army, the 
Secretary of the Interior, and the Governor shall finalize any 
agreements and procedures necessary to provide for the operation and 
funding of the independent scientific review panel and establish this 
panel within six months of the effective date of the programmatic 
regulations.
    The final regulations set forth the expectation that the National 
Academy of Sciences will use established practices for assuring the 
independence of members and that the review panel will include members 
reflecting a balance of the knowledge, training, and experience 
suitable to comprehensively review and assess the Plan's progress 
towards achieving restoration goals. WRDA 2000 provides very specific 
direction that the panel is ``to review the Plan's progress toward 
achieving the natural system restoration goals of the Plan.'' This 
specific requirement will be the focus of the agreement and the mission 
of the independent scientific review panel. The independent panel's 
tasks include those activities that are necessary to review the Plan's 
progress towards achieving the restoration goals of the Plan. In 
addition, in accordance with WRDA 2000, the panel will produce a 
biennial report to Congress, the Secretary of the Army, the Secretary 
of the Interior, and the Governor that includes an assessment of 
ecological indicators and other measures of progress in restoring the 
ecology of the natural system, based on the Plan.
    To further insure the independence of the panel, the regulations 
provide that the panel will not be assigned, and may not accept, other 
tasks, nor may it provide advice on other matters to any entity, public 
or private. Its sole mission is to review the Plan's progress toward 
achieving the natural system restoration goals of the Plan and to 
produce the section 601(j) report.
    The final regulations provide that the agreement with the section 
601(j) panel will specifically recognize that the agencies may provide 
for other independent scientific panels and peer review to address 
specific scientific or technical questions. The regulations provide for 
an external peer review process to review documents, reports, 
procedures, or to address specific scientific or technical questions or 
issues. Draft Pilot Project Technical Reports and draft assessment 
reports are specifically designated to be externally peer reviewed.

G. Restoration Coordination and Verification (RECOVER)

    Many comments focused on the role of RECOVER in implementing the 
Plan. Some of the commenters felt that the responsibilities of RECOVER 
were not clearly identified in the proposed regulations. They suggested 
that these responsibilities should be organized according to three 
major missions `` assessment, evaluation, and planning. Another 
commenter felt the final regulations should clearly state that RECOVER 
is not an independent body but that it is instead an interagency group 
that prepares work products for consideration by others. Some 
commenters believe that the final regulation should emphasize that 
RECOVER is composed of agency personnel with scientific expertise. 
Several commenters believed that the Department of the Interior should 
have a co-leadership role over RECOVER along with the Corps of 
Engineers and the South Florida Water Management District.

[[Page 64207]]

    RECOVER's origins trace back to the April 1999 ``Final Integrated 
Feasibility Report and Programmatic Environmental Impact Statement.'' 
RECOVER is an interdisciplinary, interagency scientific and technical 
team that was designed to perform system-wide analyses. In reviewing 
the comments on the proposed regulations, we felt that some 
misunderstanding might exist concerning the role of RECOVER. For 
example, some commenters suggested that RECOVER should be an 
independent body because independent science plays an important role in 
implementing the Plan. While RECOVER is a science-based group because 
many of its members possess scientific expertise, it is not an 
independent agency. It is an interagency group consisting of members 
from governmental entities The role of RECOVER is to promote an 
integrated view within the implementing agencies on matters relevant to 
the implementation of the Plan in order to ensure that the goals and 
purposes of the Plan are achieved. Independent scientific research will 
be used to gain perspectives on these issues from outside parties and 
will be provided by entities other than RECOVER.
    The final regulations recognize that RECOVER is an existing, 
presently functioning interagency team. The final regulations are 
consistent with the description of RECOVER in the Plan and envision 
that RECOVER will play an important role in ensuring that a system-wide 
perspective is applied and that the best available scientific and 
technical information is used during the development, implementation, 
and evaluation of the Plan. The final regulations address a number of 
issues. They recognize that the Corps of Engineers and the South 
Florida Water Management District will oversee the activities of 
RECOVER. The final regulations also identify the members of the RECOVER 
Leadership Group, which includes the program managers from the Corps of 
Engineers and the South Florida Water Management District, the 
Environmental Protection Agency, the National Oceanic and Atmospheric 
Administration, the U.S. Fish and Wildlife Service, the U.S. Geological 
Survey, Everglades National Park, the Miccosukee Tribe of Indians of 
Florida, the Seminole Tribe of Florida, the Florida Department of 
Agriculture and Consumer Services, the Florida Department of 
Environmental Protection, and the Florida Fish and Wildlife 
Conservation Commission. The diverse membership of the Leadership Group 
assures that the views of Federal agencies, State agencies, and Tribes 
are appropriately represented. The final regulations outline a series 
of specific scientific and technical duties RECOVER will perform to 
assist the Corps of Engineers and the non-Federal sponsors in achieving 
the goals and purposes of the Plan, particularly restoration of the 
natural system. We have grouped these duties under the three major 
missions of RECOVER--assessment, evaluation, and planning/integration 
activities.
    Again, the final regulations indicate that RECOVER is an 
interagency, interdisciplinary, scientific and technical team. The 
regulations state that the documents prepared by RECOVER are to be 
provided to the Corps of Engineers and the South Florida Water 
Management District for consideration as they carry out their 
responsibilities in implementing the Plan. The regulations specify that 
the Corps of Engineers and the SFWMD will consult with other Federal 
agencies, state agencies, local agencies and Tribes, as they consider 
the information that is provided by RECOVER.
    Several commenters expressed the view that RECOVER is an advisory 
body that is subject to the Federal Advisory Committee Act (FACA). We 
concluded that FACA does not apply to RECOVER. FACA contains an 
exception for meetings ``held exclusively between Federal officials and 
elected officers of State, local, and tribal governments,'' where those 
meetings ``are solely for the purposes of exchanging views, 
information, or advice relating to the management or implementation of 
Federal programs established pursuant to public law that explicitly or 
inherently share intergovernmental responsibilities or 
administration.'' Unfunded Mandates Act, Public Law 104-4, 109 Stat. 
48, 65 (1995), 2 U.S.C. 1501, 1534 et seq. RECOVER's meetings and 
activities fall within this exception. Another commenter noted that 
FACA does not apply to the South Florida Ecosystem Restoration Task 
Force, pursuant to WRDA 1996 and proposed that RECOVER be made an 
advisory committee to the South Florida Ecosystem Restoration Task 
Force to avoid the application of FACA. Because we have determined FACA 
does not apply to RECOVER's meetings and activities, we do not believe 
this action is necessary.

H. Reservation or Allocation of Water for the Natural System

    The provisions in the proposed regulations concerning the 
reservation or allocation of water for the natural system were of 
interest to a number of parties. A brief discussion of the legislative 
foundation of these provisions proves helpful in understanding these 
comments.
    The Plan authorized in WRDA 2000 is a framework plan designed to 
improve the distribution of water to the South Florida ecosystem. In 
accordance with section 601(f) of WRDA 2000, the Secretary of the Army, 
in coordination with the non-Federal sponsor, must prepare a Project 
Implementation Report before proceeding with an individual project that 
is included in the Plan. Section 601(h)(4)(A) of WRDA 2000 states that 
the Project Implementation Report must, among other items, identify the 
amount of water to be reserved or allocated for the natural system in 
order to provide for the appropriate quantity, timing, and distribution 
of water dedicated and managed for the natural system, and comply with 
applicable water quality and permitting standards. Section 
601(h)(4)(B)(2) of WRDA 2000 specifies that the reservation or 
allocation of water for the natural system will be implemented under 
State law and must be made before the Department of the Army can 
execute a Project Cooperation Agreement for a project.
    Several commenters expressed concern about the process for 
verifying that a reservation or allocation of water for the natural 
system has been made under State law. One commenter believed that the 
regulations should clarify the process for determining reservations by 
establishing a restoration target of water to be reserved or 
established for each area of the ecosystem. Another commenter requested 
that the Corps of Engineers develop procedures for verifying that the 
reservation or allocation of water identified in the Project 
Implementation Report has been executed under State law. Two commenters 
believed that the requirement to amend the Project Cooperation 
Agreement (PCA) whenever the State revises the reservation limits the 
State's discretion to make appropriate reservations under State law. 
These commenters also believe that the requirement to revise the PCA is 
unnecessary as the State is required to make reservations that are 
consistent with the requirements of the President-Governor agreement of 
January 9, 2002, and that agreement is specifically enforceable in 
court. Both the State of Florida and the South Florida Water Management 
District expressed the view that in enacting WRDA 2000, Congress had 
not preempted State water law and that the programmatic regulations 
should not impede or interfere with Florida water law. Several 
commenters

[[Page 64208]]

were concerned that under the proposed regulations, changes to 
reservations or allocations of water could be made without the same 
congressional and public involvement that occurred for the initial 
reservation. Several Senators, while recognizing that reservations may 
need to be revised, expressed the view that because Congress approves 
projects based on a quantification of water, it also has a 
responsibility to ensure that when any change to a reservation of water 
occurs, that the Project Cooperation Agreement be changed to account 
for de minimus changes or changes consistent with the purposes of the 
Plan, or that the change be authorized by Congress.
    Many commenters observed that the proposed regulations did not 
address the possibility that the actual performance of a project or 
project component might not meet the performance expected in the 
Project Implementation Report (PIR). As explained, WRDA 2000 requires 
that the Secretary not execute a Project Cooperation Agreement until a 
reservation or allocation of water for the natural system has been 
executed under State law. This raises the potential for problems under 
the provisions in WRDA 2000 that require sufficient reservations of 
water for the restoration of the natural system to be made under State 
law in accordance with the PIR for that project and provisions in the 
savings clause of WRDA 2000 that prohibit the elimination or transfer 
of existing legal sources of water. The problem arises if the actual 
performance of a project does not meet the projections of the water to 
be produced by the project or component laid out in the PIR. This led 
us to conclude that the final regulations must contain a discussion of 
what actions should be taken if a project or component does not perform 
as expected. This issue arises because the performance of a project or 
component will impact the reservation of the appropriate quantity, 
timing, and distribution of water dedicated and managed for the natural 
system, and whether a new source of water supply of comparable quantity 
and quality has been provided to replace an existing legal source, as 
required by the savings clause. The amount of water identified in the 
PIR is only a projection and the actual amount of water produced by a 
project will only be known when the project has been operated. The 
proposed regulations also were designed not to interfere in the State 
reservation process while providing, consistent with Congressional 
intent, that the reservation remain consistent with the agreements 
reached between the State and Federal government in the Project 
Cooperation Agreement.
    The proposed regulations recognized that reservations or 
allocations of water are a State responsibility. We attempted to ensure 
that the purpose of CERP reservations were met in the final regulations 
by requiring that the Project Cooperation Agreement include a finding 
that the required reservation has been made before execution of a 
Project Cooperation Agreement and by providing that the parties execute 
an amendment to the agreement if there is a change in the reservations. 
The final regulations also specify that ``State law'' includes 
reservations or allocations of water made by the South Florida Water 
Management District or the Florida Department of Environmental 
Protection under authority of Florida law. The intent was to preserve 
the State's control over its reservation and allocation process while 
also protecting the Federal interest in proceeding with the project 
only if adequate water had been reserved for the natural system.
    In order to clarify our process and provide further assurances to 
concerned parties, the final regulations include provisions which state 
that prior to the execution of the Project Cooperation Agreement, the 
District Engineer will verify that the initial reservation has been 
made by the State, and that the District Engineer's verification will 
be referred to in the Project Cooperation Agreement and made available 
to the public. This provision is consistent with the right of third 
parties to enforce the reservation provisions of the President-Governor 
agreement of January 9, 2002. The final regulations retain the 
provision in the proposed regulations that reservations or allocations 
of water are a State responsibility and that any change to the 
reservation or allocation of water for the natural system made under 
State law will require an amendment to the Project Cooperation 
Agreement. The final regulations also retain the provision in the 
proposed regulations that the District Engineer will, in consultation 
with other agencies and the Tribes, make a determination, after 
considering any changed circumstances or new information since 
completion of the PIR, that the revised reservation or allocation 
continues to provide for an appropriate quantity, timing, and 
distribution of water dedicated and managed for the natural system and 
satisfies the requirements of the project-specific assurances of CERP.
    The final regulations also provide that the Secretary of the Army 
will notify the appropriate committees of Congress if a change in 
reservation is made after approval of the PIR. The Secretary's and the 
State's reasons for changing the reservation and information about any 
new or changed circumstances will also be provided to Congress. This 
provision will assist Congressional oversight of any project, and its 
oversight of the integrity of the reservation process.
    We feel that these measures provide adequate assurances that the 
requirements of WRDA 2000 will be followed while not infringing upon 
the authority of the State of Florida. The open process also ensures 
both government and public oversight.

I. Interim Goals

    Many comments focused on development of the interim goals. As 
background, section 601(h)(3)(c)(i)(III) of WRDA 2000 requires that the 
``Programmatic regulations * * * establish a process * * * to ensure 
the protection of the natural system consistent with the goals and 
purposes of the Plan, including the establishment of interim goals to 
provide a means by which the restoration success of the Plan may be 
evaluated throughout the implementation process.'' Interim goals 
provide a means of tracking restoration performance and for 
periodically evaluating the accuracy of predictions of system responses 
to the effects of the Plan. Progress towards meeting the interim goals 
is to be reported to Congress as part of the periodic reports required 
by WRDA 2000.
    There was universal agreement among agencies, tribes, interest 
groups, and the public that interim goals will be useful for measuring 
the restoration success of the Plan; however, there was disagreement 
about whether the interim goals should be included in the final 
programmatic regulations. Some commenters believed that WRDA 2000 
required that the interim goals be included in the programmatic 
regulations. In contrast, other commenters maintained that WRDA 2000 
merely required that the regulations develop ``a process'' for 
establishing interim goals, and did not require that the goals 
themselves be in the regulations. Other commenters expressed views that 
did not relate to statutory considerations. Some of these commenters 
believed that it was important to include the interim goals in the 
programmatic regulations to give them appropriate visibility and to 
ensure that the interim goals are actually met. These commenters also 
believed that including the interim goals in the regulations would have 
the additional benefit of enabling the public to take part in the 
process of establishing the goals. Another group of

[[Page 64209]]

commenters realized that we could not include the interim goals in the 
regulations now but urged that they be made a part of the regulations 
at a later time. In this regard, five Senators wrote: ``We understand 
that the interim goals will not be ready to include in the regulations 
before they are finalized, but we urge the Corps to include these goals 
when they are established rather than relegating them to guidance 
documents.'' Two Congressmen commented that the final rule should 
provide for ``adoption of interim restoration goals once the 
programmatic regulations are completed.''
    Other comments maintained that interim goals should not be included 
in the programmatic regulations. Some pointed out that the Plan 
incorporates adaptive management, continuously assessing and adapting 
to new information and circumstances. They believe that incorporating 
fixed goals into regulations is inconsistent with adaptive management. 
Some commenters maintain that the rulemaking process is structured and 
cumbersome and that it is impractical to establish and amend interim 
goals through such a time-consuming process. These commenters believe 
that placing the interim goals in the programmatic regulations would 
delay the process of adopting and amending the goals, which is 
inconsistent with the concept of adaptive management. Other commenters 
were also concerned with delays but their concerns relate to 
identifying the interim goals in an Interim Goals Agreement independent 
of the regulations and making this agreement subject to the concurrence 
of the Secretary of the Interior and the Governor. These commenters 
maintain that the statute only grants the Secretary of the Interior and 
the Governor a concurrence right in the programmatic regulations and 
extending this right to the Interim Goals Agreement will simply cause 
delays.
    In reviewing the comments, it was apparent that there was 
significant disagreement on exactly what the interim goals should be. 
One commenter observed that the interim goals should not include 
ecological goals as that could subvert the hydrological basis for the 
Plan. Most commenters who maintained that interim goals must be 
included in the regulations did not give examples or provide 
descriptions of the interim goals. Even those who thought that interim 
goals should be included in the final regulations recognized that 
additional time was required to perform more modeling related to the 
interim goals. These commenters understood the importance of modeling 
in establishing interim goals that are an effective measure of the 
Plan's progress toward restoration. A number of commenters, including 
the Miccosukee Tribe of Indians of Florida, expressed a desire to 
review and comment on the interim goals before they are set forth in 
the Interim Goals Agreement.
    As a threshold matter, we think it is important to acknowledge the 
significance of the interim goals. The interim goals provide the 
yardstick that will measure the success of the restoration effort. It 
will not be possible to fairly measure the success or failure of the 
Plan without appropriate interim goals. The final regulations establish 
principles that will guide the development of the interim goals and the 
execution of the Interim Goals Agreement discussed in Sec.  385.38(a). 
These principles will appropriately involve Tribes, governmental 
interests and the public in the process. The regulations do not contain 
the specific interim goals because more time is needed to model them to 
satisfaction; therefore, the final regulations retain the concept of 
establishing the interim goals in an Interim Goals Agreement. The 
regulations provide that the public will have the opportunity to review 
and comment on the Interim Goals Agreement before the agreement is 
finalized. The regulation also makes clear that interim goals are 
targets for use by the agencies and Congress in evaluating the success 
of the restoration effort. They are not standards or schedules 
enforceable in court. The final regulations provide for the development 
and use of interim goals that include water quality and ecological 
indicators in addition to indicators characteristic of anticipated 
hydrological performance. These indicators will be helpful in making 
meaningful judgments about the performance of the Plan.
    In order to address the concern that interim goals be given 
appropriate visibility, and to clarify the relationship between the 
interim goals and the programmatic regulations, the final regulations 
also contain a new section, 385.1(c), that clarifies our interpretation 
of the statutory assurances provided for in section 601(h) of WRDA 2000 
and how the processes, tools and enforcement mechanism established in 
this section of the Act constitute an integrated framework for assuring 
that the goals and purposes of the Plan are achieved. The section 
clarifies that the programmatic regulations provide a process for 
developing tools, including Project Implementation Reports, Project 
Cooperation Agreements, Operating Manuals, interim goals, and other 
tools established in the regulations, which are used to guide the 
planning implementation and evaluation of the project. Section 601(h) 
also provides an enforcement mechanism, the Agreement between the 
President and the Governor, under which the State is to ensure, by 
regulation or other appropriate means, that water made available by 
each project in the Plan shall not be permitted for a consumptive use 
or otherwise made unavailable by the State until such time as 
sufficient reservations of water for the restoration of the natural 
system are made under State law in accordance with the project 
implementation report and consistent with the Plan. The President and 
the Governor signed this Agreement on January 9, 2002.
    The new Sec.  385.1(c) further directs the Secretary of the Army to 
ensure that the public understands the linkage between the process, 
tools, and enforcement mechanism and can monitor the effectiveness of 
this integrated framework in assuring that the goals and purposes of 
the Plan are achieved, as provided for in the programmatic regulations, 
by providing for public notice and comment in the development of the 
tools; providing notice of final action on tools; making available on 
the world-wide web or by other appropriate means final, and where 
appropriate draft, copies of all tools; and explaining through these 
regulations and by other appropriate means the process for developing 
the tools, the linkage between the process, tools and enforcement 
mechanism, and the means by which these elements constitute an 
integrated framework for assuring that the goals and purposes of the 
Plan are achieved.
    The Restoration Coordination and Verification (RECOVER) team will 
use the principles set forth in the proposed regulations to develop and 
recommend by no later than six months after the effective date of the 
programmatic regulations, a set of interim goals for implementation of 
the Plan. This date was set in recognition of the completion dates for 
the pre-CERP baseline and the Master Implementation Sequencing Plan. 
RECOVER has already begun work in order to meet the deadline.
    The final regulations specify that the interim goals will identify 
improvements in quantity, timing, and distribution of water in five-
year increments that begin in 2005, with the goals reflecting the 
results expected to be achieved by 2010 and for each five-year 
increment thereafter. As stated, the interim goals also will include 
indicators for water quality improvement and ecological responses,

[[Page 64210]]

such as increases in extent of wetlands, improvements in habitat 
quality, and improvements in native plant and animal abundance. While 
hydrologic interim goals will assess the Plan's success in restoring 
the hydrology of the region, we believe that the development and use of 
indicators for water quality improvement and ecological responses is 
necessary to assess the Plan's success in achieving the ultimate goal 
of restoration of a healthy ecosystem. The final regulations recognize 
that programs and activities that are independent of CERP may influence 
the achievement of improvements in water quality and desired ecological 
responses. The extent of the influence of these programs and activities 
should be assessed and described at the time goals are developed, and 
should be taken into account as the Plan is subsequently evaluated 
relative to its goals and purposes. In addition, the final regulations 
include specific water quality indicators for RECOVER to consider.
    The final regulations envision that RECOVER will provide its 
recommendations to the Army Corps of Engineers, the South Florida Water 
Management District, and the Department of the Interior for 
consideration. A proposed Interim Goals Agreement shall be developed by 
the Secretary of the Army, the Secretary of the Interior and the 
Governor in consultation with the Miccosukee Tribe of Indians of 
Florida, the Seminole Tribe of Florida, the Environmental Protection 
Agency, the Department of the Commerce, other Federal, State, and local 
agencies, and the South Florida Ecosystem Restoration Task Force. 
Interim goals will be memorialized in an agreement to be signed by the 
Secretary of the Army, the Secretary of the Interior, and the Governor 
of the State of Florida no later than one year after the effective date 
of the programmatic regulations. The Secretary of the Army will provide 
a notice of availability of the proposed agreement to the public in the 
Federal Register, seek public comments, and execute the final agreement 
with the Secretary of the Interior and the Governor.
    As discussed previously, the final regulations do not envision that 
interim goals will be included in the programmatic regulations 
themselves. The regulations provide that the Department of the Army 
will memorialize the Interim Goals Agreement in appropriate Corps of 
Engineers guidance. However, the regulations do establish requirements 
that are triggered if the interim goals are not achieved as 
anticipated. If the interim goals have not been met or are unlikely to 
be met, then the Corps of Engineers and the South Florida Water 
Management District must determine why the goals have not been met or 
are unlikely to be met and either initiate adaptive management actions 
to achieve the interim goals as soon as practical, consistent with the 
purposes of the Plan and consistent with the interim targets, or 
recommend changes to the interim goals.
    Finally, the final regulations establish a process for revising the 
interim goals in five-year increments or sooner, if appropriate, in 
light of new information.

J. Interim Targets for Other Water-Related Needs of the Region

    The overarching objective of the Plan is the restoration, 
preservation, and protection of the South Florida ecosystem while 
providing for other water-related needs of the region, including water 
supply and flood protection. Identifying incremental targets for the 
other water-related needs of the region will help evaluate the success 
of implementation of the Plan in achieving the non-restoration goals of 
the Plan. The proposed regulations included provisions establishing a 
process for evaluating progress on meeting the other water-related 
needs of the region.
    These provisions drew comments from several parties. One commenter 
suggested that the process for developing targets for other water-
related needs of the region should closely parallel the process for 
developing the restoration-related interim goals. Two commenters 
believed that the date specified in the proposed regulations for 
RECOVER to provide recommendations on the targets should be extended 
because the targets are influenced by information that will be 
developed in connection with the pre-CERP baseline and the Master 
Implementation Sequencing Plan. One commenter expressed the view that 
the targets for other water-related needs should not be established 
before the adoption of the restoration-related interim goals. Other 
commenters were concerned that the proposed regulations did not address 
the question of how issues would be resolved if conflicts arise between 
achieving the interim goals and the targets for other water-related 
needs.
    The final regulations provide that by not later than six months 
after the effective date of the programmatic regulations, RECOVER will 
recommend interim targets for the other water-related needs of the 
region, that are consistent with the interim goals. The Secretary of 
the Army and the Governor, in consultation with others, including the 
South Florida Ecosystem Restoration Task Force, will develop the 
interim targets. RECOVER already has begun work in order to meet the 
deadline. The final regulations specify that the Secretary of the Army 
and the Governor will establish the targets within one year of the 
effective date of the programmatic regulations, but not prior to the 
execution of the Interim Goals Agreement. Like interim goals directed 
at evaluating the restoration success of the Plan, interim targets for 
other water-related needs of the region will be incorporated into 
appropriate agency guidance.
    The final regulations retain the idea of drawing a distinction 
between interim goals, which are directed at evaluating the restoration 
success of the Plan, and interim targets for achieving the other water-
related needs of the region. In the regulations, we use the term 
``interim'' in front of the term ``targets'' to show that the interim 
targets for other water-related needs, which evaluate progress towards 
providing for these purposes, are parallel to the interim goals, which 
measure restoration success.
    Like the provisions for interim goals, the final regulations 
specify that the interim targets will identify improvements in 
quantity, timing and distribution of water in five-year increments that 
begin in 2005, with the targets reflecting the results expected to be 
achieved by 2010 and for each five-year increment thereafter. The 
interim targets will include indicators for the frequency of water 
restrictions in various areas and the frequency of meeting salt-water 
intrusion protection criteria for different areas. Again, like the 
provisions for interim goals, the final regulations do establish 
requirements that are triggered if the interim targets are not achieved 
as anticipated. If the interim targets have not been met or are 
unlikely to be met, then the Corps of Engineers and the South Florida 
Water Management District must determine why the targets have not been 
met or are unlikely to be met and either initiate adaptive management 
actions to achieve the interim targets as soon as practical, consistent 
with the purposes of the Plan and consistent with the interim goals, or 
recommend changes to the interim targets.
    Finally, the final regulations make clear that the interim targets 
are intended to facilitate inter-agency planning, monitoring, and 
assessment throughout the implementation process and are not standards 
or schedules enforceable in court.

[[Page 64211]]

K. Role of the Department of the Interior

    Several commenters recommended that the Department of the Interior 
be given a more prominent role in implementation of the Plan because it 
administers significant lands and natural resources involved in the 
Plan. These commenters felt that the concurrence provisions in the 
proposed regulations diminished the role of the Department of the 
Interior envisioned in WRDA 2000. They felt that the concurrence 
provisions in the proposed regulations did not give the Secretary of 
the Interior an appropriate role in approving the guidance memoranda 
because the Secretary of the Army could finalize these documents after 
giving good faith consideration to comments from the Secretary of the 
Interior, notwithstanding the fact that the Secretary of the Interior 
might have concerns about finalizing the regulations. In addition, 
these commenters believe that the Department of the Interior should 
have a concurrence role on other programmatic decisions such as 
Comprehensive Plan Modification Reports, the Master Implementation 
Sequencing Plan, and System Operating Manual. Other commenters noted 
that the concurrence process in WRDA 2000 only extends to the 
programmatic regulations and that section 601(h)(3)(C)(ii) expressly 
prohibits the requirement for concurrence on Project Implementation 
Reports, Project Cooperation Agreements, Operating Manuals for 
individual projects, and other documents relating to the development, 
implementation, and management of individual features of the Plan 
unless concurrence is provided for in other laws. These commenters did 
not favor giving the Department of the Interior a greater role in 
implementing the Plan.
    The final regulations give the Department of the Interior a 
concurrence role, along with the Governor of the State of Florida, in 
the development of six specific guidance memoranda related to important 
program-wide aspects of implementing the Plan. These guidance memoranda 
address the: (1) General format and content of Project Implementation 
Reports; (2) processes for evaluation of alternatives developed for 
Project Implementation Reports, their cost effectiveness and impacts; 
(3) general content of operating manuals; (4) general processes for the 
conduct of assessment activities of RECOVER; (5) process for 
identifying if an elimination or transfer of existing legal sources of 
water will occur as a result of implementation of the Plan; and (6) 
process used in Project Implementation Reports for identifying the 
appropriate quantity, timing, and distribution of water dedicated and 
managed for the natural system. In accordance with section 
601(h)(3)(c)(ii) of WRDA 2000, the regulations prohibit concurrence by 
the Secretary of the Interior and the Governor of Florida on Project 
Implementation Reports, Project Cooperation Agreements, Operating 
Manuals for individual projects, and other documents relating to 
individual features of the Plan.
    We revised the concurrence provisions in the final regulations so 
that the approval process for the guidance memoranda parallels the 
statutory concurrence process for the programmatic regulations. We 
deleted the language in the proposed regulations that said the Army 
would give ``good faith consideration'' to the concurrence or non-
concurrence statements of the Secretary of the Interior and the 
Governor before approving the guidance memoranda. This language did not 
communicate adequately our intent to obtain the concurrence of the 
Secretary of the Interior and the Governor. Instead, it suggested that 
the Army simply had to fulfill a ministerial coordination requirement 
by asking the Secretary of the Interior and the Governor whether they 
concurred or non-concurred in the guidance memorandum. We felt that 
this language did not convey the Army's intent to actively seek the 
concurrence of the Secretary of the Interior and the Governor prior to 
approving the guidance memoranda.
    The final regulations also provide that the Department of the 
Interior will play a significant role in addressing other issues 
related to the Plan. Like the proposed regulations, the final rule 
gives the Secretary of the Interior, along with the Governor of the 
State of Florida, a concurring role in the Secretary of the Army's 
determination of the pre-CERP baseline. The final regulations also 
envision that interim goals will be established through a formal 
Interim Goals Agreement among the Secretary of the Army, the Secretary 
of the Interior, and the Governor. Further, the Department of the 
Interior plays an important role in the Leadership Group of RECOVER, 
along with several other Federal and State agencies and Tribes.
    Finally, the regulations give the Department of the Interior an 
important consulting role throughout implementation of the program, 
including, among other things, participation on Project Delivery Teams; 
selection and revision of hydrologic models; development of the 
Adaptive Management Program, Project Implementation Reports, Operating 
Manuals, and Comprehensive Plan Modification Reports; development, 
review and revision of changes to the Master Implementation Sequencing 
Plan; and the development of the means for monitoring progress towards 
other water-related needs of the region as provided for in the Plan.
    Read together, we believe that these provisions give the Department 
of the Interior as well as the Governor of the State of Florida an 
important and appropriate role in implementing the Plan. This prominent 
role is consistent with Interior's natural resources stewardship and 
land management responsibilities.

L. Role of South Florida Ecosystem Restoration Task Force

    Several commenters felt that the proposed regulations did not give 
the South Florida Ecosystem Restoration Task Force (``Task Force'') an 
appropriate role in Plan implementation. The Task Force is an 
interagency group created by section 528(f) of the Water Resources 
Development Act of 1996 (110 Stat. 3770) (hereinafter ``WRDA 1996'') 
More specifically, the Miccosukee Tribe and the Seminole Tribe 
expressed the view that the Task Force could play a constructive role 
in facilitating an open discussion of issues related to implementation 
of the Plan among Federal, State, Tribal, and local interests. The 
Seminole Tribe also commented that information about alternatives 
developed for Project Implementation Reports should be shared with the 
Task Force before the completion of the draft Project Implementation 
Report.
    The responsibilities of the Task Force are found in section 528 of 
WRDA 1996 and section 601 of WRDA 2000. In general, section 528 
envisions that the Task Force will coordinate programs and research on 
ecosystem restoration, exchange information, provide assistance and 
facilitate resolution of conflicts involving the restoration of the 
South Florida ecosystem. Section 601 of WRDA 2000 gives the Task Force 
a consultation responsibility concerning the establishment of an 
independent scientific review panel to review the progress that is 
being made toward achieving the natural system restoration goals of the 
Plan.
    The final regulations recognize that the Task Force can play a 
constructive role in Plan implementation. The regulations acknowledge 
the benefits that result from sharing issues with the

[[Page 64212]]

Task Force and set forth the intention of the agencies involved in 
implementing the Plan to regularly report to the Task Force as they do 
currently. We will continue to regularly report to the Task Force and 
its working group on Plan implementation matters and we expect that the 
Task Force will continue to provide valuable input regarding 
implementation of the Plan.
    The South Florida Water Management District and the Jacksonville 
District already regularly report to the Task Force and its working 
group on CERP matters. We expect that informal coordination among the 
implementing agencies, the Task Force and its working group and its 
other advisory bodies will continue. For example, the Task Force may 
wish to have regular briefings on CERP implementation issues, on the 
Master Implementation Sequencing Plan, on Project Implementation 
Reports, or on Operating Manuals; or the Task Force may decide to have 
RECOVER provide the working group with information on work in progress. 
Further, we contemplate that the Task Force will determine, on a case-
by-case basis, the manner and extent to which it is appropriate for it 
to be involved in CERP in order to carry out its existing statutory 
responsibilities.
    The final regulations assure that the Task Force will be informed 
of certain matters of significance. They specifically state that the 
Task Force will be notified of and given an opportunity to review and 
provide comment on a variety of issues, including but not limited to, 
interim goals, Project Implementation Reports, Pilot Project Design 
Reports, Pilot Project Technical Data Reports, the pre-CERP baseline, 
assessment reports, guidance memoranda, Master Implementation 
Sequencing Plan, Comprehensive Plan Modification Reports, periodic CERP 
updates, and reports to Congress. Finally, the regulations require that 
the Task Force shall be provided with information on the alternatives 
developed and evaluated for the Project Implementation Reports before 
completion of the draft Project Implementation reports.

M. Consultation

    There was general agreement among those commenting on the proposed 
regulations that it is important for the agencies implementing the Plan 
to consult with interested parties. The Corps of Engineers and non-
Federal sponsors are responsible for implementation of the Plan. 
However, successfully implementing the Plan requires more than the 
involvement of these parties, it also requires extensive involvement by 
Tribes, Federal, State and local agencies.
    One commenter recommended that the Tribal consultation provisions 
in the proposed regulations be revised to specifically state that the 
consultation with Tribes should be conducted on a government-to-
government basis. This commenter also felt that the Federal trust 
responsibility for Tribes should not be tied to one Executive Order 
alone.
    Other commenters expressed concerns about the time that would be 
allowed for consultations. Several commenters expressed the view that 
the time allowed for consultation should reflect the complexity of the 
task or issue under review. Another commenter suggested that the 
Tribes, agencies, and public be informed of the closing dates for 
consultation.
    The final regulations contemplate that the implementing agencies 
will consult fully and openly with the Department of the Interior, the 
Environmental Protection Agency, the Department of Commerce, the 
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, 
the Florida Department of Environmental Protection, and other Federal, 
State, and local agencies as the Plan is implemented. These 
consultation provisions ensure that interested parties are 
appropriately involved in implementing, evaluating, and modifying the 
Plan when necessary. The final regulations specifically state that the 
consultation with the Tribes will be conducted on a government-to-
government basis and in compliance with applicable laws, Executive 
Orders, and regulations.
    The final regulations contemplate that the consultations on Plan 
related matters will facilitate a timely exchange of views among the 
parties. This will ensure that the consultation process is not used as 
a tool to delay or veto actions. The final regulations also envision 
that the Corps of Engineers and the non-Federal sponsor will set 
reasonable limits on the time for consultations and inform parties of 
those limits, after giving appropriate consideration to the 
significance of the proposed action, the degree to which relevant 
information is known or obtainable, the degree to which the action is 
controversial, the state of the art of analytical techniques, the 
number of persons affected, the consequences of delay, and other time 
limits imposed on the agency by law, regulations, or Executive Order.

N. Operating Manuals

    The provisions in the proposed regulations on Operating Manuals 
were of interest to a number of commenters. These manuals provide 
operational guidance that is intended to ensure that the goals and 
purposes of the Plan are achieved. Project operating manuals provide 
guidance on operational concerns relevant to individual projects. 
System Operating Manuals provide guidance on operational concerns 
related to projects in the aggregate to ensure that projects function 
in a coordinated, systematic way. Several commenters expressed concerns 
that the proposed regulations would allow unconstrained deviations from 
the approved Operating Manuals because of provisions in the regulations 
that allowed for adjustments during years when substantial deviations 
from expected rainfall and runoff occur, or when required for adaptive 
management reasons. These commenters also were concerned that the 
precise circumstances in which these temporary deviations would be 
allowed were not specified. Another commenter expressed the view that 
the final regulations should include a provision that would ensure any 
changes to Operating Manuals are consistent with the goals and purposes 
of the Plan. Finally, one commenter felt that the final regulations 
should include a provision stating that the drought contingency plans 
that are mentioned in the regulations discussing Operating Manuals 
should be consistent with the Seminole Tribe's water rights compact.
    The final regulations retain the concept of developing Project 
Operating Manuals and System Operating Manuals. They contain new 
provisions that allow for public review and comment before they are 
finalized. The regulations also specify that the System Operating 
Manual will be developed by December 31, 2005. They contemplate that a 
Project Operating Manual will be developed for each project and that a 
draft Project Operating Manual will be included as an appendix in the 
Project Implementation Report. This will ensure that the operation of 
the project is linked to the expected benefits of the project 
recommended in the Project Implementation Report. The final regulations 
state that the final Project Operating Manual will be prepared as soon 
as possible after completion of the operational testing and monitoring 
phase of the project. Additionally, a provision has been added to the 
regulations that will require modifications to operating manuals to be 
consistent with the goals and purposes of the Plan. We have deleted the 
proposed provision of concern regarding yearly adjustments and have

[[Page 64213]]

described the circumstances for allowing temporary deviations due to 
emergencies and unplanned minor deviations. The final regulations also 
require that the drought contingency plans be consistent with the 
Seminole water rights compact.

O. Master Implementation Sequencing Plan

    Several parties commented on the provisions in the proposed 
regulations concerning the Master Implementation Sequencing Plan. This 
Master Implementation Sequencing Plan, identified as the framework for 
restoration of the South Florida ecosystem, covers 68 components that 
will be implemented as approximately 45 separate projects. The proposed 
regulations establish a process for developing a Master Implementation 
Sequencing Plan and a process for specifying that projects will be 
sequenced and scheduled to maximize the achievement of the goals and 
purposes of the Plan, including the achievement of the interim goals 
and interim targets at the earliest possible time, to the extent 
practical given scientific, technical, funding, contracting, and other 
constraints. One commenter felt that the Master Implementation 
Sequencing Plan should reflect the formulation and evaluation 
provisions and the results of Plan efforts currently underway. Another 
commenter believed that the Master Implementation Sequencing Plan 
should take into account the savings clause of WRDA 2000.
    The final regulations contemplate that the Master Implementation 
Sequencing Plan will be developed within one year of the effective date 
of the programmatic regulations, following consultation with the 
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Indians, 
the U. S. Department of the Interior, the U.S. Department of Commerce, 
U.S. Environmental Protection Agency, the Florida Department of 
Environmental Protection, and other Federal, State and local agencies, 
as well as in consultation with the South Florida Ecosystem Restoration 
Task Force. They provide for sequencing and scheduling projects to 
ensure that each project delivers benefits, including benefits to the 
natural system, that justify the project, in the context of the then 
existing Central and Southern Florida Project, as modified by any Plan 
components that already have been implemented. The final regulations 
envision that the Master Implementation Sequencing Plan will base the 
sequence and schedule of projects on the best scientific, technical, 
funding, contracting, and other information available. They also state 
that the Master Implementation Sequencing Plan will be revised as 
necessary to integrate new information such as updated schedules from 
Project Management Plans, the results of pilot projects and other 
studies, updated funding information, revisions to the Plan, 
Congressional or other authorization and direction, or information from 
the adaptive management program, including achievement of the expected 
performance level of the Plan and the interim goals and targets.

P. Adaptive Management Program

    Several commenters thought that it was important to modify the 
proposed regulation's provisions concerning adaptive management in 
order to reinforce the importance of this management concept in 
implementing the Plan. Adaptive management is a crucial element of the 
Everglades Restoration Plan. It involves refining the Plan during its 
implementation to respond to new information or technologies to ensure 
that the goals and purposes of the Plan are fulfilled. The report of 
the Senate Committee on Environment and Public Works on WRDA 2000 
(Senate Report No. 106-362) contains a discussion of that committee's 
expectations with respect to adaptive management:

    The committee does not expect rigid adherence to the Plan as it 
was submitted to Congress. This result would be inconsistent with 
the adaptive management principles in the Plan. Restoration of the 
Everglades is the goal, not adherence to the modeling on which the 
April 1999 Plan was based. Instead, the committee expects that the 
agencies responsible for project implementation report formulation 
and Plan implementation will seek continuous improvement of the Plan 
based upon new information, improved modeling, new technology and 
changed circumstances.

    One commenter suggested that the definition of adaptive management 
be revised to clarify its meaning. Another commenter pointed out that 
the Corps of Engineers and the South Florida Water Management District 
currently are in the process of updating the Plan to ensure that it is 
based on the latest available information and modeling. This commenter 
recommended that a direction to complete this update be included in the 
final regulations since the Plan is based on information and 
projections that are approximately five years old.
    The final regulations contain a new definition of adaptive 
management. The regulations define adaptive management to mean:

    The continuous process of seeking a better understanding of the 
natural system and human environment in the South Florida ecosystem, 
and seeking continuous refinements in and improvements to the Plan 
to respond to new information resulting from changed or unforeseen 
circumstances, new scientific and technical information, new or 
updated modeling; information developed through the assessment 
principles contained in the Plan; and future authorized changes to 
the Plan in order to ensure that the goals and purposes of the Plan 
are fulfilled.

    The final regulations also provide for the establishment of an 
adaptive management program that will guide the implementation of the 
Plan. This program will be used to assess the responses of the South 
Florida ecosystem to the Plan and to determine whether these responses 
match expectations, including anticipated performance levels. If the 
interim goals or targets are not achieved as anticipated, the Corps of 
Engineers and the South Florida Water Management District must 
determine why not, followed by either adaptive management actions to 
achieve the goals or targets as soon as practicable, or revisions to 
the goals or targets as appropriate.
    The final regulations envision that the Corps of Engineers and the 
South Florida Water Management District, based on technical information 
developed by RECOVER, will prepare periodic assessment reports as part 
of this adaptive management program. These reports will be externally 
peer reviewed and used by the implementing agencies in consultation 
with others to evaluate whether the goals and purposes of the Plan are 
being achieved and to determine whether improvements to the Plan are 
warranted. The reports should prove invaluable in gaining an 
understanding of the Plan's effectiveness and in ensuring that its 
goals and purposes are fulfilled. The regulations also provide that in 
considering how the Plan may be improved, the Corps of Engineers and 
non-Federal project sponsor specifically shall consider modifying the 
design or operational plan for a project of the Plan not yet 
implemented; modifying the sequence or schedule for implementation of 
the Plan; adding new components to the Plan or deleting components not 
yet implemented; removing or modifying a component of the Plan already 
in place; or a combination of any of these actions.
    The final regulations also specify that periodic CERP updates shall 
be performed, beginning within six months of the effective date of the 
programmatic regulations and whenever necessary to ensure that the 
goals and purposes of

[[Page 64214]]

the Plan are achieved, but not any less often than every five years. 
The periodic CERP updates will be accomplished by the Corps of 
Engineers and the South Florida Water Management District, in 
consultation with Tribes, Federal, State, and local agencies, to 
conduct an evaluation of the Plan using new or updated modeling that 
includes the latest scientific, technical, and planning information. 
The periodic CERP updates will provide a basis for determining if 
management actions are necessary to seek improvements in the Plan based 
upon new information resulting from changed or unforeseen 
circumstances, new scientific and technical information, new or updated 
modeling; information developed through the assessment principles 
contained in the Plan; and future authorized changes to the Plan. The 
final regulations direct that as part of the periodic CERP update, the 
Corps of Engineers and the South Florida Water Management District will 
determine the total quantity of water that is expected to be generated 
by implementation of the Plan, including the quantity needed for the 
natural system and human environment.
    The consultation provisions of the proposed regulations have been 
expanded to provide that the Corps of Engineers and the South Florida 
Water Management District also shall consult with the South Florida 
Restoration Task Force in conducting the evaluation of the Plan. The 
final regulations no longer provide for review of the assessment report 
by the independent science review panel. The independent science review 
panel will prepare its own report to Congress with its independent 
assessment of ecological indicators. It was deemed appropriate to keep 
these reports separate in order to provide for a truly comprehensive 
review of Plan performance and to ensure the independence of the 
science review panel by insulating it from any other aspect of Plan 
implementation or assessment beyond its statutory mission.

Q. Comprehensive Plan Modification Reports

    We anticipate that the Plan will need to be revised periodically as 
part of the adaptive management program to reflect new information and 
to improve performance. The final regulations provide that a 
Comprehensive Plan Modification Report shall be prepared whenever 
significant revisions to the Plan are necessary to ensure that the 
goals and purposes of the Plan are achieved. The Comprehensive Plan 
Modification Report will be prepared using a process that parallels the 
process for developing a Project Implementation Report. The final 
regulations provide that the final approved Comprehensive Plan 
Modification Report shall be transmitted to Congress. The final 
regulations also provide that the Comprehensive Plan Modification 
Report will include updated water budget information for the Plan, 
including the total quantity of water that is expected to be generated 
by implementation of the Plan, the quantity needed for the natural 
system in order to attain restoration goals, and the quantity generated 
for use in the human environment. In general, Plan modifications should 
be consistent with achieving the interim goals and targets. In some 
cases, the process of developing a Comprehensive Plan Modification 
Report (which includes consultation with Federal, State, and local 
agencies and public notice and comment) could identify necessary 
changes to the interim goals or targets. In this case, the goals or 
targets would be revised accordingly, as provided for in the final 
regulations.
    We did not receive any comments on the proposed regulations 
provisions concerning Comprehensive Plan Modification Reports. We did 
make several changes in the proposed regulations to conform to the 
general comments made on other sections and to provide more detailed 
information related to these reports. For example, the final 
regulations state that the Comprehensive Plan Modification Report will 
be initiated at the discretion of the Corps of Engineers and South 
Florida Water Management District, in consultation with Federal, State, 
and local agencies and the Tribes. The regulations also set forth a 
series of general requirements related to the preparation of these 
reports.

R. Pre-CERP Baseline

    The provisions in the proposed regulations concerning the pre-CERP 
baseline were of interest to a number of parties. Developing the pre-
CERP baseline is an important step in ensuring that the goals and 
purposes of the Plan are fulfilled in accordance with WRDA 2000. This 
baseline is a tool for estimating hydrological conditions in the South 
Florida ecosystem on the date of enactment of WRDA 2000. It will be 
used to aid in the determination if existing legal sources of water 
will be eliminated or transferred as a result of project implementation 
and for determining the water made available by the Plan.
    A number of commenters expressed concerns about the concurrence 
provisions for the pre-CERP baseline. These commenters pointed out that 
WRDA 2000 only granted concurrence rights to the Secretary of the 
Interior and the Governor on the programmatic regulations. They believe 
that extending this concurrence process to the pre-CERP baseline was 
unnecessary and would cause delays in developing the baseline. Two 
commenters believed that the pre-CERP baseline should include all 
existing legal sources of water and also should include the levels of 
service for flood protection. One commenter observed that the 
requirement in the proposed rule that the pre-CERP baseline was to be 
consistent with the guidance memorandum for identifying the appropriate 
quantity, timing, and distribution of water to be dedicated and managed 
for the natural system might not be developed before the pre-CERP 
baseline is determined.
    The final regulations provide guidance on developing the pre-CERP 
baseline. They envision that the pre-CERP baseline will include 
information on the quantity, timing, distribution, and quality of water 
in the South Florida ecosystem on the date of enactment of WRDA 2000. 
The regulations state that the pre-CERP baseline will be supported by 
appropriate documentation and will include a description of the 
assumptions on which it is based. Additional work performed by the 
Corps and the South Florida Water Management District with regard to 
the pre-CERP baseline indicates that the pre-CERP baseline does not 
need to be tied to the methodology for identification of water to be 
reserved for the natural system as these are two separate analyses. The 
final regulations require that the recommended project be compared to 
the pre-CERP baseline and other appropriate information to determine if 
an elimination or transfer of legal sources of water will be caused by 
implementation of the project. Therefore, the final regulations do not 
contain the provision from the proposed regulations that require the 
Corps of Engineers and South Florida Water Management District, when 
determining the pre-CERP baseline, to use a method consistent with the 
guidance memorandum that contains instructions for identifying the 
appropriate quantity, timing, and distribution of water dedicated and 
managed for the natural system.
    The final regulations provide that within six months of the 
effective date of the programmatic regulations, the Corps of Engineers 
and the South Florida Water Management District shall, in consultation 
with Tribes, Federal, State, and local agencies develop the pre-CERP 
baseline and

[[Page 64215]]

present it to the Secretary of the Army for consideration, memorialized 
in an appropriate document. The regulations state that the pre-CERP 
baseline shall be developed with the concurrence of the Secretary of 
the Interior and the Governor. The language gives the Secretary of the 
Interior and the Governor the same concurrence opportunity they had on 
the programmatic regulations. While this concurrence process is not 
required by law and will require additional time to fulfill, we believe 
it is appropriate to provide for this process because of the 
significance of the pre-CERP baseline.
    Additionally, the final regulations specify that pre-CERP baseline 
water availability is one of the factors that will be assessed in each 
Project Implementation Report when determining the water that needs to 
be reserved for the natural system. In order to ensure that the levels 
of service for flood protection are not reduced, we have added a 
provision that requires each Project Implementation Report to include 
an analysis that considers the operational conditions included in the 
pre-CERP baseline.

S. Shortfall in Performance by a Project

    Several commenters noted that the proposed regulations did not 
provide guidance on what actions should be taken when the amount of 
water generated by a project is less than the amount estimated when the 
Project Implementation Report was prepared. These commenters believe 
that such a shortfall in performance should be shared in an equitable 
manner among project purposes. One commenter proposed that, if a 
component does not produce the water expected, the shortfall should be 
shared equally. Another commenter proposed that if the actual 
operations of a component do not produce the amount of water expected 
for the natural system and other water-related needs of the region, 
``the shortfall be shared between all anticipated uses on a pro rata 
basis of what the project was expected to produce for each use.'' Other 
commenters want to ensure that the needs of the natural system and the 
savings clause requirements are provided first, before additional water 
for agricultural and urban needs is provided.
    The proposed regulations did not address the shortfall question. 
Since the framework Plan includes 68 components that have different 
functions, we do not consider one general rule concerning shortfalls in 
performance to be appropriate. One unvarying rule for all projects 
might also create problems under the savings clause. The final 
regulations provide that the Project Implementation Report (PIR) will 
include a plan for interim operations of the project in the event that 
the project fails to provide the quantity, timing, or distribution of 
water described in the PIR. The plan will take into account the 
specific purposes of the specific project component addressed in the 
PIR and the overall goals and purposes of the Plan. Under the final 
regulations, management actions must be taken as part of the adaptive 
management program to make permanent adjustments for shortfalls in 
performance on a system-wide basis.

T. Elimination or Transfer of Existing Legal Sources of Water

    Several commenters noted that the proposed regulations did not 
contain a definition of the term ``existing legal sources of water.'' 
Section 601(h)(5)(A) of WRDA 2000 contains a savings clause provision 
that is designed to ensure that an existing legal source of water is 
not eliminated or transferred until a replacement source of water of 
comparable quantity and quality as was available on the date of 
enactment of WRDA 2000 is available. The statute states that ``the 
Secretary and the non-Federal sponsor shall not eliminate or transfer 
existing legal sources of water, including those for--(i) agricultural 
or urban water supply; (ii) allocation or entitlement to the Seminole 
Indian Tribe of Florida * * * (iii) the Miccosukee Tribe of Indians of 
Florida; (iv) water supply for Everglades National Park; (v) water 
supply for fish and wildlife.''
    The report of the Senate Committee on Environment and Public Works 
on WRDA 2000 (Senate Report No. 106-362) describes the intent of the 
prohibition against the elimination or transfer of legal sources of 
water as follows:

    Elimination of existing sources of water supply is barred until 
new sources of comparable quantity and quality of water are 
available; existing authorized levels of flood protection are 
maintained; and the water compact among the Seminole Tribe of 
Florida, the State, and the South Florida Water Management District 
is specifically preserved.

    Although WRDA 2000 uses the term ``existing legal sources of 
water,'' it does not define the term; nor could we find a definition of 
this term elsewhere in Federal or State law. Several commenters 
believed that the term should include all sources of water. According 
to this view, a legal source of water that was available on the date of 
enactment of WRDA 2000 would include water that was accessible and 
could have been used on that date, as well as water that actually was 
used or permitted to be used on that date. These commenters pointed out 
that the statute refers to existing legal ``sources'' not existing 
legal ``uses.'' Other commenters believed that existing legal sources 
of water should be limited to water permitted for consumptive use. 
Still others believed that the term was further limited to consumptive 
uses that not only were permitted, but also were actually used, on the 
date of enactment. One commenter suggested that a guidance memorandum 
be developed that defines an existing legal source of water and 
provides guidance for determining if the implementation of a project 
will cause an elimination or transfer of an existing legal source of 
water.
    The final regulations provide for the development of a guidance 
memorandum that will define ``existing legal sources of water.'' This 
guidance memorandum also will describe the process for determining if 
existing legal sources of water are to be eliminated or transferred and 
for determining if a new source of water of comparable quantity and 
quality as that available on the date of enactment of WRDA 2000 is 
available to replace the water to be lost as a result of implementation 
of the Plan.
    The final regulations also state that the Project Implementation 
Report will include an analysis to determine if the project will cause 
an elimination or transfer of existing legal sources of water. The 
final regulations also state that the recommended project will be 
compared to the pre-CERP baseline and other appropriate information to 
determine if an elimination or transfer of legal sources of water will 
be caused by implementation of the project. If the project will cause 
an elimination or transfer of a source of water, then the Project 
Implementation report will include measures to ensure that such 
elimination or transfer will not take place until a new source of water 
of comparable quantity or quality is available to replace the water 
that would be lost as a result of implementation of the Plan.
    In accordance with WRDA 2000, the regulations make clear that the 
Secretary of the Army and the non-Federal sponsor will not eliminate 
existing legal sources of water, including those for agricultural or 
urban water supply, an allocation or entitlement of the Seminole Tribe 
of Florida, the Miccosukee Tribe of Indians of Florida, water supply 
for Everglades National Park, and water supply for fish and wildlife. 
Some commenters wanted the

[[Page 64216]]

regulation to include a definition for urban water supply. We have not 
included a definition of urban water supply because we believe that 
such a definition should be more appropriately developed with the 
definition of existing legal sources of water that will be defined in 
the required guidance memorandum.

U. Flood Protection

    The WRDA 2000 provisions concerning the maintenance of flood 
protection were of interest to several commenters. Section 601(h)(5)(B) 
of WRDA 2000 contains a savings clause provision that is designed to 
ensure that levels of service for flood protection are not reduced by 
implementation of a project. This provision specifically states 
``implementation of the Plan shall not reduce levels of service for 
flood protection that are `` (i) in existence on the date of enactment 
of this Act; and (ii) in accordance with applicable law.''
    The report of the Senate Committee on Environment and Public Works 
on WRDA 2000 (Senate Report No. 106-362) describes the intent of the 
flood protection savings clause as follows:

    With respect to flood control, the committee intends that 
implementation of the Plan will not result in significant adverse 
impact to any person with an existing, legally recognized right to a 
level of protection against flooding. The committee does not intend 
that, consistent with benefits included in the Plan, this bill 
create any new rights to a level of protection against flooding that 
is not currently recognized under applicable Federal or State law.

    Several commenters felt that the final regulations should contain 
additional guidance on how to interpret the provisions providing for 
the maintenance of flood protection. One commenter believed that the 
savings clause provisions for flood protection also should be extended 
to the natural system and should be interpreted to prevent the transfer 
of excessive water to the natural system. This commenter also felt that 
the final regulations should define the term ``in accordance with 
applicable law.'' Some commenters questioned how the Plan would address 
opportunities for increased levels of flood protection or the provision 
of flood protection in locations where there currently is no flood 
protection. These commenters felt that the regulation should specify 
that during the implementation of the Plan, the Project Delivery Teams 
will consider opportunities for providing additional flood protection.
    We have concluded that the existing levels of service for flood 
protection for a particular area should be determined on a project-by-
project basis. Accordingly, the final regulations specify that Project 
Implementation Reports will include an appropriate analysis and 
consider the operational conditions included in the pre-CERP baseline 
to demonstrate that the levels of service for flood protection that 
were in existence on the date of enactment of WRDA 2000 and is in 
accordance with applicable law will not be reduced by the project. The 
Project Implementation Report process provides numerous opportunities 
for the Project Delivery Team, the public, and the South Florida 
Ecosystem Restoration Task Force, to examine the levels of service of 
flood protection provided by previous projects and any law applicable 
to the specific area affected by the Project Implementation Report. 
Finally, the regulations acknowledge that the overarching objective of 
the Plan is the restoration, preservation, and protection of the South 
Florida ecosystem while providing for other water-related needs of the 
region, including water supply and flood protection. Accordingly, the 
final regulations provide for the evaluation of additional flood 
protection, provided that such flood protection is consistent with the 
other goals and purposes of the Plan.

V. NEPA Compliance

    The Council on Environmental Quality regulations that implement the 
National Environmental Policy Act (NEPA) (40 CFR 1505.1 and 1507.3), 
specify that agencies must issue regulations identifying typical 
classes of actions that normally require environmental impact 
statements, that normally do not require either an environmental impact 
statement or an environmental assessment (categorical exclusions), or 
that normally require environmental assessments but not necessarily 
environmental impact statements. The Corps of Engineers has adopted 
procedures fulfilling this requirement in 33 CFR 230. The final 
regulations consider the actions needed to implement the Plan on a 
system-wide basis and apply the principles of 33 CFR 230 to those 
actions to ensure that the provisions of NEPA are fulfilled. The 
regulations identify certain actions that generally require preparation 
of a NEPA document (either an Environmental Impact Statement or an 
environmental assessment) or that do not require the preparation of a 
NEPA document because they are subject to a categorical exclusion under 
NEPA.
    The final regulations envision that ordinarily the NEPA 
documentation for a particular project will accompany the Project 
Implementation Report. For this reason, other project-specific 
documents such as the Project Cooperation Agreement, Project Management 
Plan, and plans and specifications for the project are listed as 
categorically excluded from NEPA documentation requirements. It is 
important to note that identifying a document as being categorically 
excluded from NEPA does not mean that the environmental effects of the 
action covered by that document will not be analyzed as required under 
NEPA. The Corps of Engineers will fully analyze and consider these 
effects at an appropriate time as required by NEPA. This analysis will 
be accomplished at the time the Corps of Engineers develops its 
specific project proposal in the Project Implementation Report. This 
process accords with NEPA's provisions on timing (40 CFR 1502.5 and 
1508.23) and its admonishment to avoid duplication (Sec.  1500.4) and 
improper segmentation of Federal actions (Sec.  1502.4).
    Some commenters expressed the view that the guidance memorandum for 
determining the quantity, timing and distribution of water dedicated 
and managed for the natural system in a Project Implementation Report 
(PIR) should be analyzed in an Environmental Impact Statement (EIS). 
Since the guidance memorandum is procedural and does not affect the 
environment, recommend legislation, or determine a specific quantity, 
timing, or distribution of water for a specific component, it is not 
considered a ``major Federal action'' under NEPA. As noted, the 
specific project proposal, which is governed by the guidance 
memorandum, will be subject to a full NEPA analysis in the Project 
Implementation Report.
    Similar comments were directed at the interim goals. Some 
commenters felt that the interim goals were not ``major Federal 
actions'' affecting the environment under NEPA. These commenters 
regarded the interim goals as evaluation and reporting tools. Other 
commenters maintained that the interim goals are planning goals and 
that as such should be subject to a full NEPA analysis. We have 
determined that the interim goals and interim targets do not require 
separate NEPA analysis. Interim goals are means by which the 
restoration success of the Plan may be evaluated; interim targets are 
means by which progress towards other water-related needs of the region 
may be evaluated. The Plan itself has undergone NEPA analysis. Future 
decisions about the environment that involve interim goals and interim 
targets will be analyzed in other NEPA documents. Projects implementing 
the Plan will be analyzed under NEPA in Project

[[Page 64217]]

Implementation Reports. This will include an analysis of how the 
project contributes to the goals and purposes of the Plan, including 
the interim goals and interim targets. The effect of sequencing on the 
achievement of interim goals and interim targets will be analyzed under 
NEPA through the Master Implementation Sequencing Plan. The effect of 
changes to CERP on the achievement of interim goals and interim targets 
will also be analyzed under NEPA through the Comprehensive Plan 
Modification Report. For this reason, we have listed interim goals and 
interim targets as categorically excluded from NEPA. This is consistent 
with the NEPA implementing regulations, which specify the NEPA analyses 
should be structured to avoid duplication and improper segmentation of 
Federal actions.
    Some commenters felt that Project Cooperation Agreements, Project 
Management Plans and Program Management Plans should not be 
categorically excluded from NEPA. The Project Cooperation Agreement is 
a written agreement between the non-Federal sponsor and the Federal 
government setting forth the Federal and non-Federal responsibilities 
for implementing the project. The Project Cooperation Agreement does 
not select among project alternatives, it merely sets forth the 
parties' contractual understandings with regard to a project proposal 
that previously has been selected in the Project Implementation Report. 
For this reason, we continue to believe that it is appropriate to 
extend a categorical exclusion to Project Cooperation Agreements; 
however, the Corps of Engineers will not conclude a Project Cooperation 
Agreement for a project before the environmental consequences of that 
project have been considered fully in an appropriate NEPA document 
accompanying a Project Implementation Report. Project Management Plans 
and Program Management Plans are administrative documents setting 
schedules and assigning tasks between the local sponsor and the Federal 
government. Accordingly, those items continue to be listed as 
categorically excluded in the final rule.

W. Outreach

    Several commenters suggested that the outreach provisions in the 
proposed regulations be revised. A number of commenters requested 
inclusion of their community-based group as a specific entity with 
which to consult. Several commenters believed that the proposal did not 
make clear the need for effective outreach throughout the 
implementation process, not just during the planning phase. In 
addition, several commenters believed that specific measurement tools 
were needed to monitor the effectiveness of the outreach effort and the 
minority contracting provisions. One commenter suggested that the 
regulations ensure that information is provided to socially and 
economically disadvantaged individuals and communities about potential 
or anticipated contracting opportunities. One commenter suggested that 
the regulations specify that meetings with the public should be 
scheduled at times and locations that are convenient to the public.
    In the final regulations, we have broadened the definition of 
public to include community-based organizations. The regulations 
clarify that the public outreach provisions apply throughout the entire 
process of implementing the plan. The regulations also add a provision 
that public meetings and workshops will be held at times and locations 
that facilitate participation by the public. The final regulations also 
contain a provision to provide additional information to socially and 
economically disadvantaged individuals and communities about potential 
contracting opportunities, noting that the means chosen must be 
consistent with the outreach provisions of CERP and with other 
applicable provisions of Federal law. The intent of this provision is 
to share information with the public in a way that is allowable and 
consistent with the Federal Acquisition Regulations, the Competition in 
Contracting Act, and other applicable provisions of law and 
regulations.

X. Formulation and Evaluation of Alternatives

    The final regulations explain that the Project Implementation 
Report is a document that provides information on plan formulation and 
evaluation, engineering and design, estimated benefits and costs, 
environmental effects, and the additional information that is necessary 
for the Secretary of the Army to approve the project for 
implementation, or for Congress to authorize the project for 
implementation. Several commenters felt that changes should be made to 
the provisions in the proposed regulations concerning the formulation 
and evaluation of alternatives for Project Implementation Reports. Some 
commenters believe that alternatives should be formulated, evaluated, 
and justified on their ability to provide system-wide benefits. One 
commenter felt that the language in the proposed regulations, which 
requires system formulation and evaluation to compare ``total benefits 
and costs of the alternative under both the with-CERP and without-CERP 
condition,'' is vague. The same commenter stated that the proposed 
regulation's inclusion of the evaluation of a selected alternative as 
the last-added increment of the Plan was superfluous, because the 
proposed regulations already require proposed alternatives to be 
evaluated on the basis they contribute to the achievement of the goals 
and purposes of the Plan. One commenter believed that constraining plan 
formulation within the funding target for the project established by 
the April 1999 ``Final Integrated Feasibility Report and Programmatic 
Environmental Impact Statement'' was not appropriate and would inhibit 
full consideration of alternatives. Another commenter believed that the 
proposed regulations envisioned an overly narrow definition of cost 
effectiveness. Some comments cautioned that the formulation and 
evaluation of alternatives should not mimic traditional Corps of 
Engineers planning principles because in their view, traditional Corps 
of Engineers planning has focused on the quantification of benefits at 
customary civil works projects, rather than achieving the unique goal 
of restoring an entire ecosystem. There was general agreement that the 
formulation and evaluation of alternatives should not elevate the goal 
of fulfilling the other water-related needs of the region over the goal 
of fulfilling the ecological needs of the South Florida ecosystem 
simply because the benefits of fulfilling the other water-related needs 
are readily quantifiable and the benefits of fulfilling the ecological 
needs are not. This is consistent with section 601(h) of WRDA 2000 
which 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; and with section 
601(f)(2), which states that the Secretary of the Army may determine 
that an activity under CERP is justified by the environmental benefits 
to be derived by the South Florida ecosystem, with no further economic 
justification required, provided the activity is cost-effective.
    The final regulations remove the provision that constrains plan 
formulation to stay within the funding target for the project 
established in the April 1999 ``Final Integrated Feasibility Report and 
Programmatic

[[Page 64218]]

Environmental Impact Statement.'' Instead, the final regulations 
require that the Project Implementation Report include a discussion of 
any significant changes in cost or scope of the project from that 
presented in the April 1999 Report. They also require that in preparing 
Project Implementation Reports, the Corps of Engineers and the non-
Federal sponsor will formulate and evaluate alternative plans in order 
to optimize the project's contributions toward achieving the goals and 
purposes of the Plan on a system-wide basis in the most cost-effective 
manner, while also ensuring that the selected option provides benefits 
that justify costs on a next-added increment basis. The final 
regulations call for the development of a guidance memorandum that will 
describe the processes to be used to formulate and evaluate alternative 
plans and their associated monetary and non-monetary benefits and costs 
and the basis for justifying and selecting an alternative to be 
recommended for implementation. To aid the formulation and evaluation 
process, the final regulations also include definitions for the terms 
``alternative plan,'' ``justified,'' and ``optimize.'' The definition 
of ``justified'' makes clear, consistent with section 601(f)(2) of WRDA 
2000 that restoration benefits need not be quantified or monetized to 
justify costs, provided that the activity is justified by the 
environmental benefits derived by the South Florida ecosystem and is 
cost-effective. The regulations make clear that the project described 
in the April 1999 ``Final Integrated Feasibility Report and 
Programmatic Environmental Impact Statement,'' will be one of the 
alternative plans that will be evaluated. They also specify that the 
selected alternative plan will be the plan that maximizes net benefits 
while still being justified as the next-added increment. Under the 
final regulations, alternative plans that are not justified on a next-
added increment basis will not be selected. Finally, we have revised 
figure 2 in Appendix A to better describe the formulation and 
evaluation activities conducted during the development of the Project 
Implementation Report.
    In publishing these final regulations, we emphasize that the 
discussion in the regulations on plan formulation and evaluation should 
not be construed to elevate water supply and flood control benefits, 
which historically have been easier to quantify and place a monetary 
value on, over environmental restoration benefits, which are more 
difficult to quantify.

Y. References to Senate Committee Report Language

    One commenter was concerned about references to the Senate 
Environment and Public Works Committee Report (Senate Report No. 106-
362) in the preamble of the proposed regulations. This commenter 
expressed the view 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 agree that the final 
statute differed in several areas from the bill discussed in the report 
and must be read with this limitation in mind. We have referred to the 
Senate Report in the preamble to the final regulations only where it 
provides relevant and reliable information to aid the understanding of 
issues involved in implementing the Plan.

V. 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 Project Implementation Reports that were 
approved prior to the date of issuance of the final regulations. 
Accordingly, this preamble specifically states that no Project 
Implementation Reports have been approved before the date of issuance 
of the final programmatic regulations.

VI. Concurrence Process 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 of the Army 
with a written statement of concurrence or non-concurrence on the final 
programmatic regulations. The Secretary of Interior and the Governor 
shall provide concurrence or non-concurrence within 180 days of being 
provided with a copy of the final regulations.
    The Department of the Army has sought to communicate openly and 
fully with the Department of the Interior and the State of Florida 
during the course of developing these regulations. We believe that this 
communication has improved the content of the regulations and led to a 
full understanding of the views of these parties. The concurrency 
statements of the Department of the Interior and the State of Florida 
are included as an appendix to this document.

VII. Organization of the Final Regulations

    We have organized the final regulations in five subparts. The first 
subpart, ``General Provisions,'' sets forth the purpose of the 
regulations, the applicability of the regulations, definitions 
pertaining to the regulations and other general information. The second 
subpart, ``Program Goals and Responsibilities,'' describes the goals 
and purposes of the Plan, implementation principles, implementation 
responsibilities, and consultation and coordination expectations. The 
remaining subparts were designed to be consistent with the content 
required by section 601(h)(3)(C). These subparts 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.''

VIII. Administrative Requirements

A. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    The final regulations do not impose any information collection 
requirements for which Office of Management and Budget (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 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,

[[Page 64219]]

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 the final 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.

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.'' Although the 
final regulations define the relationships between the Federal and 
State partners, it is 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, within the 
meaning of Executive Order 13132. Nevertheless, the Corps of Engineers 
has consulted closely with the State and local officials in developing 
the final regulations.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended (5 U.S.C. 601 et 
seq.) 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. We certify that this action will not have a significant economic 
impact on a substantial number of small entities. The final 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) The final 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 final 
regulations do not establish new or different requirements for non-
Federal sponsors for implementation of projects for the Comprehensive 
Everglades Restoration Plan. The Savings Clause ensures that small 
governments, including public water utilities, will not be impacted by 
the loss of an existing legal source of water, or existing levels of 
service for flood protection that were in effect on the date of 
enactment of WRDA 2000, and in accordance with applicable law.
    (b) The final regulations will not produce a Federal mandate of 
$100 million or greater in any year, and therefore, do not constitute a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The final 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, impose 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, as amended, 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 were considered. The final 
regulations are not subject to Executive Order 13045 because it is not 
an economically significant regulatory action as defined by Executive 
Order 12866. The final 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, the regulations 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

[[Page 64220]]

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 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 final 
regulations are required by section 601(h)(3) of WRDA 2000. 
Additionally, the final regulations do 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 final 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 the regulations, 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 
also are 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 final regulations will not effect a taking of private 
property or otherwise have taking implications. Therefore, a takings 
implication assessment is not required. The final regulations establish 
processes to be used in implementing the Comprehensive Everglades 
Restoration Plan and in and of itself does not address property needs.

J. Civil Justice Reform

    In accordance with Executive Order 12988, we have determined that 
the final regulations do not unduly burden the judicial system and meet 
the requirements of sections 3(a) and 3(b)(2) of the Executive Order. 
The final regulations establish processes to be used in implementing 
the Comprehensive Everglades Restoration Plan and define 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 final 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. Executive Order 13272

    On August 13, 2002, the President issued an Executive Order (E.O. 
13272) that requires that agencies review draft rules to assess and 
take appropriate account of the potential impact on small businesses, 
small governmental jurisdictions, and small organizations, as provided 
for in the Regulatory Flexibility Act, as amended (5 U.S.C. 601 et 
seq.) We have determined that this action will not have a significant 
economic impact on a substantial number of small entities. The final 
regulations only establish processes and governmental relationships 
that will be used for implementation of the Comprehensive Everglades 
Restoration Plan.

M. Environmental Documentation

    As required by the National Environmental Policy Act (NEPA), the 
Department of the Army prepares appropriate environmental documentation 
for its activities affecting the quality of the human environment. We 
have determined that the final 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 the final 
regulations. One commenter expressed the view that an Environmental 
Impact Statement was necessary for the regulations. The Corps of 
Engineers has prepared appropriate environmental documentation, 
including a Programmatic Environmental Impact Statement, for the 
Comprehensive Everglades Restoration Plan. Today's final regulations do 
not implement any of the features of the Plan. Rather, the final 
regulations identify the processes to be followed in implementing 
features of the Plan. Moreover, the final regulations establish 
requirements for the preparation of appropriate environmental 
documentation as part of the implementation process. Accordingly, we 
continue to believe that an EIS is not warranted.

List of Subjects in 33 CFR Part 385

    Environmental protection, Flood control, Intergovernmental 
relations, Natural resources, Water resources, Water supply.

    Dated: October 30, 2003.
John Paul Woodley, Jr.,
Assistant Secretary of the Army (Civil Works), Department of the Army.

0
Accordingly, as set forth in the preamble, the Army Corps of Engineers 
adds 33 CFR part 385 as follows:
0
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 Guidance memoranda.
385.6 Review of programmatic regulations.
385.7 Concurrency statements.
Subpart B--Program Goals and Responsibilities
Sec.
385.8 Goals and purposes of the Comprehensive Everglades Restoration 
Plan.
385.9 Implementation principles.

[[Page 64221]]

385.10 Implementation responsibilities, consultation, and 
coordination.
Subpart C--CERP Implementation Processes
Sec.
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 and external peer 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
Sec.
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
Sec.
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.
385.39 Evaluating progress towards 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 programmatic regulations of 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 the programmatic regulations of this part is to 
ensure that the goals and purposes of the Comprehensive Everglades 
Restoration Plan (the Plan) are achieved and to establish the processes 
necessary for implementing the Plan. Some of these processes are 
project specific, including, but not limited to, development of Project 
Implementation Reports, Project Cooperation Agreements, plans and 
specifications, 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, 
interim goals, interim targets, and the Master Implementation 
Sequencing Plan. Taken together, these processes will ensure that the 
restoration purposes and other goals of the Plan are achieved. The 
regulations of this part also describe the relationship among the 
various entities responsible for implementation of the Plan.
    (c) Section 601(h) of WRDA 2000 establishes an integrated framework 
for assuring that the goals and purposes of the Plan are achieved. This 
framework includes tools for planning, implementation, and evaluation; 
a process for developing these tools in an open public process, with 
input from other Federal, State, and local agencies; and an enforcement 
mechanism to ensure that the requirements of the statute are carried 
out.
    (1) Tools.
    (i) The specific planning tool established by section 601(h) is the 
Project Implementation Report.
    (ii) The specific implementation tools established by section 
601(h) are Project Cooperation Agreements and Operating Manuals.
    (iii) The specific evaluation tool established by section 601(h) is 
the interim goals for evaluating the restoration success of the Plan.
    (iv) In addition to the specific planning, implementation, and 
evaluation tools established by section 601(h), the regulations of this 
part establish additional tools, including but not limited to, Project 
Management Plans, Program Management Plans, Comprehensive Plan 
Modification Reports, the Master Implementation Sequencing Plan, and 
interim targets for evaluating progress towards achieving the other 
water related needs of the region.
    (2) Processes. The regulations of this part establish the processes 
for developing these tools. Consistent with section 601(h), these 
regulations have been developed, after notice and opportunity for 
public content, with the concurrence of the Secretary of the Interior 
and the Governor, 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, the 
Florida Department of Environmental Protection, and other Federal, 
State, and local agencies.
    (3) Enforcement mechanism. The specific enforcement mechanism 
established by Section 601(h) is the ``Comprehensive Everglades 
Restoration Plan Assurance of Project Benefits Agreement,'' dated 
January 9, 2002, between the President and the Governor, under which 
the State shall ensure, by regulation or other appropriate means, that 
water made available by each project in the Plan shall not be permitted 
for a consumptive use or otherwise made unavailable by the State until 
such time as sufficient reservations of water for the restoration of 
the natural system are made under State law in accordance with the 
project implementation report and consistent with the Plan.
    (4) Public information. The Secretary of the Army shall ensure that 
the public understands the linkage between the processes, tools, and 
enforcement mechanism and can monitor the effectiveness of this 
integrated framework in assuring that the goals and purposes of the 
Plan are achieved, as provided for in the regulations of this part, by:
    (i) Providing for public notice and comment in the development of 
planning, implementation, and evaluation tools;
    (ii) Providing notice of final action on planning, evaluation, and 
implementation tools;
    (iii) Making available to the public on a web site or by other 
appropriate means final, and where appropriate draft, copies of all 
planning, evaluation, and implementation tools; and
    (iv) Explaining through the regulations of this part and by other 
appropriate means the process for developing the tools, the linkage 
between the process, tools, and enforcement mechanism, and the means by 
which these elements constitute an integrated framework for assuring 
that the goals and purposes of the Plan are achieved.


Sec.  385.2  Applicability of the programmatic regulations.

    (a) This part applies to all activities conducted to implement the

[[Page 64222]]

Comprehensive Everglades Restoration Plan.
    (b) As used in this part, the Secretary of the Army acts through 
the Assistant Secretary of the Army for Civil Works with respect to the 
Army's civil works program pursuant to 10 U.S.C. 3016.
    (c) Nothing in this part shall be interpreted to amend, alter, 
diminish, or otherwise affect:
    (1) The rights, 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).
    (d) This part is intended to aid the internal management of the 
implementing agencies and is 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.
    (e) 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.

    For the purposes of this part, the following terms are defined:
    Adaptive management means the continuous process of seeking a 
better understanding of the natural system and human environment in the 
South Florida ecosystem, and seeking continuous refinements in and 
improvements to the Plan to respond to new information resulting from 
changed or unforeseen circumstances, new scientific and technical 
information, new or updated modeling; information developed through the 
assessment principles contained in the Plan; and future authorized 
changes to the Plan in order to ensure that the goals and purposes of 
the Plan are fulfilled.
    Alternative plan means a plan that consists of a system of 
structural and/or nonstructural measures, strategies, or programs 
formulated to achieve, fully or partially, the goals and purposes of 
the Plan, as further defined in section 1.6.1 of the Water Resources 
Council's ``Economic and Environmental Guidelines for Water and Related 
Land Resources Implementation Studies,'' dated March 10, 1983.
    Assessment means the process whereby the actual performance of 
implemented projects is measured and interpreted based on analyses of 
information obtained from research, monitoring, 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; the removal of canals, levees, pumps, and water control 
structures; and operational changes.
    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, and any subsequent modification authorized in 
law.
    Comprehensive Plan Modification Report means the report prepared 
for approval by Congress of major changes to the Plan that are 
necessary to ensure that the goals and purposes of the Plan are 
achieved. The Comprehensive Plan Modification Report describes the 
formulation and evaluation of alternatives, 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 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 program and project activities, reports, manuals, 
plans, and other documents from Federal, State, and local agencies, 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, Operating 
Manuals, and Comprehensive Plan Modification 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 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.
    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 means 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, national origin, or economic 
status, including environmental justice, and the provision of economic 
opportunities for small business concerns controlled by socially and 
economically disadvantaged individuals, including individuals with

[[Page 64223]]

limited English proficiency, in the implementation of the Plan.
    Environmental justice means identifying and addressing, 
disproportionately high and adverse human health or environmental 
effects of a Federal agency's programs, policies, and activities on 
minority and low-income populations, in accordance with applicable 
laws, regulations, and Executive Orders.
    Evaluation means the process whereby the performance of plans and 
designs relative to desired objectives is forecast through predictive 
modeling and other tools.
    Expected performance level means the projected level of benefits to 
the natural system and human environment described in the Plan.
    External peer review means a process to review and validate the 
scientific and technical processes and information developed for 
implementation of the Plan that is independent of the agencies involved 
in the implementation of the Plan.
    Goals and purposes of the Plan means 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.
    Governor means the Governor of the State of Florida.
    Guidance memorandum means the specific procedure, process, or other 
guidance specified in Sec.  385.5(b) that is developed and approved by 
the Secretary of the Army with the concurrence of the Secretary of the 
Interior and the Governor.
    Improved or new flood protection benefits means increased or new 
levels of service for flood protection that are 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 to review the Plan's progress 
toward achieving the natural system restoration goals of the Plan.
    Individual feature of the Plan means a component or group of 
components of the Plan related to and limited to one specific project 
of the Plan.
    Interim goal is a means by which restoration success of the Plan 
may be evaluated throughout the implementation process. Interim goals 
provide a means of tracking restoration performance, as well as a basis 
for reporting on the progress made at specified intervals of time 
towards restoration of the South Florida ecosystem, and for 
periodically evaluating the accuracy of predictions of system responses 
to the effects of the Plan.
    Interim target is a means by which the success of the Plan in 
providing for other water-related needs of the region, including water 
supply and flood protection, may be evaluated throughout the 
implementation process. Interim targets provide a means of tracking 
Plan performance, as well as a basis for reporting on progress made at 
specified intervals of time towards providing for other water-related 
needs of the region, and for periodically evaluating the accuracy of 
predictions of system responses to the effects of the Plan.
    Justified has the same meaning as in section 601(f)(2) of WRDA 2000 
which states that the Secretary of the Army, in carrying out any 
activity to restore, preserve, or protect the South Florida ecosystem, 
may determine that an activity is justified by the environmental 
benefits derived by the South Florida ecosystem and no further economic 
justification for the activity is required, if the Secretary determines 
that the activity is cost-effective.
    Levels of service for flood protection means the expected 
performance of the Central and Southern Project and other water 
management systems in the South Florida ecosystem, consistent with 
applicable law, for a specific area or region.
    Master Implementation Sequencing Plan means the document that 
describes the sequencing and scheduling for the projects of the Plan.
    Mediation means a non-binding dispute resolution process designed 
to assist the disputing parties to resolve a disagreement. 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 the 
natural system and human environment at specific locations and times.
    Natural system means all land and water managed by the Federal 
government or the State within the South Florida ecosystem including, 
but not limited to, 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; 
the contiguous near-shore coastal water of South Florida; and, any 
tribal land that is designated and managed for conservation purposes, 
as approved by the tribe.
    Next-added increment means the evaluation of an alternative as the 
next project to be added to a system of projects already implemented. 
For the purposes of this part, this means analyzing an alternative as 
the next project to be added to a system of projects that includes only 
those projects that have been approved according to general provision 
of law or specific authorization of Congress and are likely to have 
been implemented by the time the project being evaluated is completed.
    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 contain water control 
plans, regulation schedules, and operating criteria for project and/or 
system regulations as well as additional information necessary to 
operate projects to ensure that the goals and purposes of the Plan are 
achieved.
    Optimize means to follow a reasonable and practical process for 
developing a plan that returns the greatest excess of benefits, both 
monetary and non-monetary, over costs.
    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 implementing the 
Plan.
    Performance measure means an element or component of the natural 
system or human environment that is expected to be influenced by the 
Plan that has been selected to be evaluated or monitored as 
representative of a class of responses to implementation of the Plan 
and compared with a level of output that is expected and desired during 
or following the implementation of the Plan.
    Periodic CERP update means the evaluation of the Plan that is 
conducted periodically with new or updated modeling that includes the 
latest available scientific, technical, and planning information.

[[Page 64224]]

    Pilot project means a project undertaken to address uncertainties 
associated with certain components of the Plan such as aquifer storage 
and recovery, in-ground reservoir technology, seepage management, and 
wastewater reuse. The purpose of pilot projects is to develop 
information necessary to better determine the technical feasibility of 
these components prior to development of a Project Implementation 
Report.
    Pilot Project Design Report means the report that contains the 
technical information necessary to implement a pilot project.
    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 
in the ``Final Integrated Feasibility Report and Programmatic 
Environmental Impact Statement,'' dated April 1, 1999, as modified by 
section 601 of WRDA 2000, and any subsequent modification authorized in 
law.
    Plans and specifications means the information required to bid and 
construct the recommended project described in the Project 
Implementation Report.
    Pre-CERP baseline means the hydrologic conditions in the South 
Florida ecosystem on the date of enactment of WRDA 2000, as modeled by 
using a multi-year period of record based on assumptions such as land 
use, population, water demand, water quality, and assumed 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 system-wide in scope.
    Program Management Plan means the document that describes the 
activities, tasks, and responsibilities that will be used to produce 
and deliver the products that comprise a program-level activity.
    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 
team led by the Corps of Engineers and the non-Federal sponsor that 
develops the technical products necessary to implement a project.
    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 the document that describes the 
activities, tasks, and responsibilities that will be used to produce 
and deliver the products necessary to implement a 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, including community-based organizations, Native American 
(Indian) tribes, and individuals.
    Quality control plan means the plan prepared in accordance with 
applicable regulations and 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 means the recovery and protection of the South Florida 
ecosystem so that it once again achieves and sustains those essential 
hydrological and biological characteristics that defined the 
undisturbed South Florida ecosystem. As authorized by Congress, the 
restored South Florida ecosystem will be significantly healthier than 
the current system; however it will not completely replicate the 
undisturbed South Florida ecosystem.
    Restoration Coordination and Verification (RECOVER) means the 
interagency and interdisciplinary scientific and technical team 
described in the ``Final Integrated Feasibility Report and Programmatic 
Environmental Impact Statement,'' dated April 1, 1999 and established 
by the Corps of Engineers and the South Florida Water Management 
District to: ensure that a system-wide perspective is maintained; 
ensure the highest quality scientific and technical information is 
applied throughout the implementation process; and to assess, evaluate, 
and integrate the projects of the Plan with the overall goal of 
ensuring that the goals and purposes of the Plan are achieved.
    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, including but not limited to, the 
Everglades, the Florida Keys, and the contiguous near-shore coastal 
water of South Florida.
    South Florida Ecosystem Restoration Task Force (Task Force) means 
the task force established pursuant to section 528(f) of WRDA 1996 (110 
Stat. 3770).
    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 Central and Southern Florida Project.
    System-wide means pertaining to the Central and Southern Florida 
Project or the South Florida ecosystem, as a whole.
    Technical review means the process that confirms that the 
engineering, economic, environmental, and other aspects of project 
formulation and design are in accord with appropriate Federal, State, 
and Corps of Engineers established standards and criteria, regulations, 
laws, codes, principles, and professional procedures that are necessary 
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.
    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

[[Page 64225]]

Delivery Team through periodic technical reviews of the technical 
aspects of projects.
    Water budget means an account of all water inflows, outflows, and 
changes in storage over a period of time.
    Water dedicated and managed for the natural system means the water 
to be reserved or allocated for the natural system under State law as 
identified in a Project Implementation Report.
    Water made available means the water expected to be generated 
pursuant to the implementation of a project of the Plan in accordance 
with the Project Implementation Report for that project.
    Without CERP condition means the conditions predicted (forecast) in 
the South Florida ecosystem without implementation of any of the 
projects of the Plan.
    WRDA 1996 means the Water Resources Development Act of 1996, Public 
Law 104-303, which was enacted on October 12, 1996.
    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 ``the 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  Guidance memoranda.

    (a) General. (1) Technical guidance for internal management of 
Corps of Engineers personnel during Plan implementation will be 
normally issued in the form of Engineer Regulations, Circulars, 
Manuals, or Pamphlets, or other appropriate form of guidance.
    (2) Guidance on the following six program-wide subjects shall be 
promulgated 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 formulation and evaluation of alternatives 
developed for Project Implementation Reports, their cost effectiveness 
and impacts (Sec.  385.26(b));
    (iii) General content of operating manuals (Sec.  385.28(a));
    (iv) General directions for the conduct of the assessment 
activities of RECOVER (Sec.  385.31(b));
    (v) Instructions relevant to Project Implementation Reports for 
identifying the appropriate quantity, timing, and distribution of water 
to be dedicated and managed for the natural system (Sec.  385.35(b)); 
and
    (vi) Instructions relevant to Project Implementation Reports for 
identifying if an elimination or transfer of existing legal sources of 
water will occur as a result of implementation of the Plan (Sec.  
385.36(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 for approval by 
the Secretary of the Army. The Corps of Engineers and the South Florida 
Water Management District shall also consult with the South Florida 
Ecosystem Restoration Task Force in the development of these guidance 
memoranda. The following procedures shall apply to the specific 
guidance memoranda described in paragraph (a) of this section:
    (1) Guidance memoranda shall be consistent with this part, 
applicable law, and achieving the goals and purposes of the Plan.
    (2) The Secretary of the Army shall afford the public an 
opportunity to comment on each guidance memorandum prior to approval 
through the issuance of a notice of availability in the Federal 
Register.
    (3) Approved guidance memoranda shall be made available to the 
public.
    (4) The guidance memoranda specifically referenced in this part 
shall be developed by December 13, 2004.
    (5) The six guidance memoranda described in paragraph (a) of this 
section shall be developed with the concurrence of the Secretary of the 
Interior and the Governor. Within 180 days after being provided with 
the final 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 shall provide the Secretary of the 
Army with a written statement of concurrence or non-concurrence with 
the proposed guidance memorandum. A failure to provide a written 
statement of concurrence or non-concurrence within such time frame 
shall be deemed as meeting the concurrency requirements 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 
guidance memorandum. Any nonconcurrency statement shall specifically 
detail the reason or reasons for the non-concurrence. 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 or non-
concurrence on that special procedure. In lieu of concurrence or non-
concurrence on such a special procedure, the Secretary of the Army 
shall consult with the Secretary of the Interior and the Governor.
    (6) The Secretary of the Army shall consider incorporating into the 
regulations of this part the guidance memoranda specifically referenced 
in this section during future reviews and revisions of the regulations 
of this part.
    (c) Revisions to six Program-wide guidance memoranda. The Secretary 
of the Army may, whenever the Secretary believes it is necessary, and 
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 South Florida 
Water Management District, the Florida Department of Environmental 
Protection, other Federal, State, and local agencies, and the public, 
revise guidance memoranda that have been completed. Such revisions 
shall be developed and approved consistent with the provisions of 
paragraph (b) of this section. Revisions to the six guidance memoranda 
described in paragraph (a) of this section shall be made following the 
same concurrence process as in paragraph (b)(5) of this section.
    (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

[[Page 64226]]

with applicable law, policy, and regulations.


Sec.  385.6  Review of programmatic regulations.

    (a) The Secretary of the Army shall review, and if necessary 
revise, the regulations of this part at least every five years. In 
addition, the Secretary of the Army may review and revise the 
regulations of this part whenever the Secretary believes that such 
review and revision is necessary to attain the goals and purposes of 
the Plan. The Secretary of the Army shall place appropriate notice in 
the Federal Register upon initiating review of the regulations of this 
part.
    (b) Upon completing the review of the regulations of this part, the 
Secretary shall promulgate any revisions to the regulations after 
notice and opportunity for public comment in accordance with applicable 
law, with the concurrence of the Secretary of the Interior and the 
Governor, 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 after being provided with the final revisions 
to the programmatic regulations of 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 shall provide the Secretary 
of the Army with a written statement of concurrence or non-concurrence 
with the revisions. A failure to provide a written statement of 
concurrence or non-concurrence within such time frame shall be deemed 
as meeting the concurrency process 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 non-concurrency statement shall 
specifically detail the reason or reasons for the non-concurrence.


Sec.  385.7  Concurrency statements.

    The administrative record of the programmatic regulations in this 
part contains a copy of the concurrency statements by the Secretary of 
the Interior and the Governor to the Secretary of the Army. The 
concurrency statements can be obtained from the Army Corps of 
Engineers, Jacksonville District, 701 San Marco Blvd., Jacksonville, 
Florida 32207, or by accessing the programmatic regulations Web page 
at: http://www.evergladesplan.org/pm/progr_regs_final_rule.cfm.

Subpart B--Program Goals and Responsibilities


Sec.  385.8  Goals and purposes of the Comprehensive Everglades 
Restoration Plan.

    (a) The Comprehensive Everglades Restoration Plan (CERP) is a 
framework for modifications and operational changes to the Central and 
Southern Florida Project. 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, 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, implement the 
Plan, as authorized by Congress, 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 restore, preserve, and protect the 
South Florida ecosystem while providing for other water-related needs 
of the region. The Plan is designed to accomplish this by providing the 
quantity, quality, timing, and distribution of water necessary to 
achieve and sustain those essential hydrological and biological 
characteristics that defined the undisturbed South Florida ecosystem. 
As authorized by Congress, the restored South Florida ecosystem will be 
significantly healthier than the current system; however it will not 
completely replicate the undisturbed South Florida ecosystem and some 
areas may more closely replicate the undisturbed ecosystem than others. 
Initial modeling showed that most of the water generated by the Plan 
would go to the natural system in order to attain restoration goals, 
and the remainder of the water would go for use in the human 
environment. The Corps of Engineers, the South Florida Water Management 
District, and other non-Federal sponsors shall ensure that Project 
Implementation Reports identify the appropriate quantity, timing, and 
distribution of water to be dedicated and managed for the natural 
system that is necessary to meet the restoration goals of the Plan. In 
accordance with the ``Comprehensive Everglades Restoration Plan 
Assurance of Project Benefits Agreement,'' dated January 9, 2002 
pursuant to section 601(h)(2) of WRDA 2000, the South Florida Water 
Management District or the Florida Department of Environmental 
Protection shall make sufficient reservations of water for the natural 
system under State law in accordance with the Project Implementation 
Report for that project and consistent with the Plan before water made 
available by a project is permitted for a consumptive use or otherwise 
made unavailable.
    (d) The Corps of Engineers and non-Federal sponsors shall implement 
the Plan in a manner to continuously improve the expected performance 
level of the Plan based upon new information resulting from changed or 
unforeseen circumstances, new scientific and technical information, new 
or updated modeling; information developed through the adaptive 
assessment principles contained in the Plan; and 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 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, evaluated, and 
justified based on their ability to contribute to the goals and 
purposes of the Plan and on their ability to provide benefits that 
justify costs on a next-added increment basis.
    (b) Interim goals shall be established in accordance with Sec.  
385.38 to provide a means for evaluating restoration success of the 
Plan at specific time intervals during implementation. Interim targets 
to evaluate progress on

[[Page 64227]]

providing for other water-related needs of the region provided for in 
the Plan shall be established in accordance with Sec.  385.39. Interim 
goals and interim targets shall be consistent with each other.
    (c) Endorsement of the Plan as a restoration framework is not 
intended as a constraint on innovation during 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 and technical information, 
new or updated modeling; information developed through the assessment 
principles contained in the Plan; and future authorized changes to the 
Plan are integrated into the implementation of the Plan. The adaptive 
management process provides a means for analyzing the 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 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.


Sec.  385.10  Implementation responsibilities, consultation, and 
coordination.

    (a) Implementing agencies. Implementation of the Plan shall be the 
responsibility of the Corps of Engineers and the non-Federal sponsors.
    (b) Consultation. (1) Consultation with tribes. (i) In addition to 
any other applicable provision for consultation with Native American 
Tribes, including but not limited to, laws, regulations, executive 
orders, and policies the Corps of Engineers and non-Federal sponsors 
shall consult with and seek advice from the Miccosukee Tribe of Indians 
of Florida and the Seminole Tribe of Florida throughout the 
implementation process to ensure meaningful and timely input by tribal 
officials regarding programs and activities covered by this part. 
Consultation with the tribes shall be conducted on a government-to-
government basis.
    (ii) In carrying out their responsibilities under section 601 of 
WRDA 2000 with respect to the restoration of the South Florida 
ecosystem, the Secretary of the Army and the Secretary of the Interior 
shall fulfill any obligations to the Indian tribes in South Florida 
under the Indian trust doctrine as well as other applicable legal 
obligations.
    (2) Consultation with agencies. The Corps of Engineers and non-
Federal sponsors shall consult with and seek advice from the Department 
of the Interior, the Environmental Protection Agency, the Department of 
Commerce, the Florida Department of Environmental Protection, and other 
Federal, State, and local agencies throughout the implementation 
process to ensure meaningful and timely input by those agencies 
regarding programs and activities covered under this part. The time 
for, and extent of, consultation shall be appropriate for, and limited 
by, the activity involved.
    (c) Coordination. The Corps of Engineers and the non-Federal 
sponsor shall coordinate implementation activities and the preparation 
of documents with other Federal, State, and local agencies and the 
tribes to fulfill the requirements of all applicable Federal and State 
laws, including but not limited to, the Fish and Wildlife Coordination 
Act, the National Environmental Policy Act, the Clean Air Act, the 
Clean Water Act, the National Historic Preservation Act, the Coastal 
Zone Management Act, the Marine Mammal Protection Act, and the 
Endangered Species Act.
    (d) Timeliness obligations of consultation. Consultation involves 
reciprocal obligations: on the part of the Corps of Engineers and the 
non-Federal sponsor to involve agencies, tribes, and the public at an 
early stage and in such a way to ensure meaningful consultation, and on 
the part of the parties consulted to respond in a timely and meaningful 
fashion so that the implementation of the Plan is not jeopardized and 
so that delays do not result in other adverse consequences to 
restoration of the natural system, to the other goals and purposes of 
the Plan, or to the public interest generally. Prescribed time limits 
set by regulation are too inflexible for the entire consultation 
process. It is expected that the Corps of Engineers and the non-Federal 
sponsor will set reasonable time limits for consultation on specific 
decisions consistent with the purposes of this part and that the 
parties will consult in a timely and meaningful way. The Corps of 
Engineers and the non-Federal sponsor recognize that the time limits 
established for each specific decision will be proportionate to the 
complexity of the decision and will take into account the resources of 
the entity with whom the consultation is occurring in order to allow 
consultation to occur in a meaningful way. This part does not intend 
for a delay in consultation to be used as a de facto veto power. This 
part authorizes the Corps of Engineers and the non-Federal sponsor to 
set reasonable limits on the amount of time for consultation. In 
setting reasonable time limits, the agencies and tribes may consider 
relevant considerations such as sequencing of projects, planning, 
contracting and funding, and any factor listed for setting time limits 
for consulting under the National Environmental Policy Act (NEPA) (40 
CFR 1501.8), including but not limited to, the nature and size of the 
proposed action, the degree to which relevant information is known or 
obtainable, the degree to which the action is controversial, the state 
of the art of analytical techniques, the number of persons affected, 
and the consequences of delay. In engaging in consultation, the Corps 
of Engineers and non-Federal sponsor shall inform the agencies, tribes, 
and public of the ending date for consultation. In addition, the 
agencies and tribes should adhere to all time limits imposed by law, 
regulations or executive order. In appropriate circumstances, the Corps 
of Engineers and the non-Federal sponsor may extend the time for 
consultation upon a showing that delays will not result in adverse 
consequences to the implementation of the Plan, to the restoration of 
the natural system, to the other goals and purposes of the Plan, or to 
the public interest and that relevant considerations justify a longer 
time. Failure of an agency, tribe or the public to engage in 
consultation with the Corps of Engineers and the non-Federal sponsor, 
or file comments in, a timely and meaningful way shall not be a 
sufficient reason for extending a consultation or comment period. 
Nothing in this part is intended to alter existing time limits 
established by statute or other regulations.
    (e) South Florida Ecosystem Restoration Task Force. The Department 
of the Army recognizes the valuable role that the South Florida 
Ecosystem Restoration Task Force (Task Force), its working group, and 
its other advisory bodies play in the discussion and resolution of 
issues related to the South Florida ecosystem. The Corps of Engineers 
and the South Florida Water Management District regularly brief the 
Task Force on the Plan and regularly serve on the working group and 
other advisory bodies. The Corps of Engineers and the South Florida 
Water Management District and other non-Federal sponsors shall continue 
to provide information to, and consult with, the South Florida 
Ecosystem Restoration Task Force, the Florida-based working group, and 
advisory

[[Page 64228]]

bodies to the Task Force as appropriate throughout the implementation 
process for the Plan. In addition to consultation with the Task Force 
specified elsewhere in this part, the Corps of Engineers and the South 
Florida Water Management District shall consult with the South Florida 
Ecosystem Restoration Task Force, its working group, and its advisory 
bodies, on other matters related to the implementation of the Plan, as 
the Task Force from time to time may request. Pursuant to the 
provisions of WRDA 1996, the Task Force shall provide general input 
concerning the implementation of the Plan. The Task Force shall provide 
recommendations to the Secretary of the Army regarding the 
implementation of the Plan, as provided in this part. The Secretary of 
the Army shall notify the Task Force to ensure it is afforded an 
opportunity to review and provide recommendations on reports and 
products, including but not limited to, interim goals and interim 
targets, Project Implementation Reports, Pilot Project Design Reports, 
Pilot Project Technical Data Reports, the pre-CERP baseline, assessment 
reports, guidance memoranda, Master Implementation Sequencing Plan, 
Comprehensive Plan Modification Reports, periodic CERP updates, and 
reports to Congress prepared pursuant to Sec.  385.40.

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 the process that is 
shown in figure 1 in Appendix A of this part. Typical steps in this 
process involve:
    (a) Project Management Plan. The Project Management Plan describes 
the activities, tasks, and responsibilities that will be used to 
produce and deliver the products necessary to implement the project.
    (b) Project Implementation Report. The Project Implementation 
Report provides information on plan formulation and evaluation, 
engineering and design, estimated benefits and costs, and environmental 
effects to bridge the gap between the conceptual design included in the 
Plan and the detailed design necessary to proceed to construction. The 
Project Implementation Reports will also set forth additional 
information and analyses necessary for the Secretary of the Army or 
Congress to approve the project for implementation.
    (c) Plans and specifications. During this phase, final design of 
the project is completed and plans and specifications are prepared. 
Plans and specifications contain the information necessary to bid and 
construct the project.
    (d) Real estate acquisition. The lands, easements, and rights-of 
way, and relocations necessary for the project are acquired prior to 
construction.
    (e) Construction. This phase is the actual construction of a 
project's components and includes an interim operation and monitoring 
period to ensure that the project operates as designed.
    (f) Operation. After construction of the project has been 
completed, it is operated in accordance with the System Operating 
Manual and the Project Operating Manual.
    (g) Monitoring and assessment. After the project has been 
constructed, monitoring is conducted as necessary to assess the 
effectiveness of the project and to provide information that will be 
used for the adaptive management program.


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 better determine the technical feasibility 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 implementing a pilot project, 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 documentation.
    (2) The Pilot Project Design Report shall include a detailed 
operational testing and monitoring plan necessary to develop 
information to assist in better determining the technical feasibility 
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 operational testing and monitoring of the 
pilot project. The purpose of the Pilot Project Technical Data Report 
is to help assess the viability of technology and to assist in the 
development of the full-scale 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) In accordance with Sec.  385.22(b), the draft Pilot Project 
Technical Data Report shall be externally peer reviewed.
    (2) In accordance with Sec.  385.18, the public shall be provided 
with opportunities to review and comment on the draft Pilot Project 
Technical Data Report.
    (3) The final Pilot Project Technical Data Report shall be made 
available to the public.


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.

[[Page 64229]]

Sec.  385.14  Incorporation of NEPA and related considerations into the 
implementation process.

    (a) General. (1) In implementing the Plan, the Corps of Engineers 
shall comply with the requirements of NEPA (42 U.S.C. 4371, et seq.) 
and applicable implementing regulations, including determining whether 
a specific action, when considered individually and cumulatively, will 
have a significant impact on the human environment.
    (2) As appropriate, other agencies shall be invited to be 
cooperating agencies in the preparation of NEPA documentation pursuant 
to Sec.  230.16 of this chapter.
    (3) 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 
implementation of the plan shall follow the NEPA procedures established 
in part 230 of this chapter.
    (b) Actions normally requiring an Environmental Impact Statement 
(EIS). (1) In addition to the actions listed in Sec.  230.6 of this 
chapter, actions normally requiring an EIS are:
    (i) Comprehensive Plan Modification Reports;
    (ii) System Operating Manual or significant changes to the System 
Operating Manual;
    (iii) Project Implementation Reports, including the draft Project 
Operating Manual when included in the Project Implementation Report;
    (iv) Pilot Project Design Reports, including the detailed 
operational testing and monitoring plan; and
    (v) Project Operating Manuals for any project where a Project 
Implementation Report is not prepared, or significant changes to 
Project Operating Manuals.
    (2) The District Engineer may consider the use of an environmental 
assessment (EA) on the types of actions described in this paragraph 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.
    (c) Actions normally requiring an EA, but not necessarily an EIS. 
In addition to the actions listed in Sec.  230.7 of this chapter, 
actions normally requiring an EA, but not necessarily an EIS, are 
modifications to Project Operating Manuals or the System Operating 
Manual, that do not provide for significant change in operation and/or 
maintenance.
    (d) Categorical exclusions. In addition to the activities listed in 
Sec.  230.9 of this chapter, the following actions do not require 
separate NEPA documentation, either because, when considered 
individually and cumulatively, they do not have significant effects on 
the quality of the human environment or because any such effects will 
already have been considered in NEPA documentation prepared in 
accordance with paragraphs (b) and (c) of this section. However, the 
District Engineer should be alert for extraordinary circumstances that 
may dictate the need to prepare an EA or an EIS. 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, the Coastal Zone Management Act, and the 
Marine Mammal Protection Act.
    (1) Project Cooperation Agreements;
    (2) Project Management Plans;
    (3) Program Management Plans;
    (4) Plans and specifications for projects;
    (5) Pilot Project Technical Data Reports;
    (6) Assessment reports prepared for the adaptive management 
program;
    (7) Interim goals and interim targets;
    (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 flood protection, and 
similar guidance memoranda or methods; and
    (9) Deviations from Operating Manuals for emergencies and unplanned 
minor deviations when, considered individually and cumulatively, they 
do not have significant effects on the quality of the human 
environment, 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.''


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 
projects of the Plan. Project Implementation Reports shall include such 
information and analyses, consistent with this part, as are necessary 
to facilitate review and approval of projects by the South Florida 
Water Management District 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 for 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) In accordance with the procedures of the Corps of Engineers 
business process described in Engineer Regulation ER 5-1-11 ``US Army 
Corps of Engineers Business process,'' the Corps of Engineers and the 
non-Federal sponsor shall form a Project Delivery Team to develop the 
products necessary to implement each project.
    (b) The Corps of Engineers shall assign, and the non-Federal 
sponsor may assign, a project manager to lead the Project Delivery 
Team.
    (c) The Corps of Engineers and the South Florida Water Management 
District shall 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 use their 
expertise to ensure that information developed by the Project Delivery 
Team is shared with agencies, tribes, and the public 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 and the National Marine Fisheries 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

[[Page 64230]]

be considered or construed to be a substitute for consultation, 
coordination, or other activities required by applicable law or this 
part.
    (d) Documents and work products prepared or developed by the 
Project Delivery Team shall not be self-executing, but shall be 
provided as information for consideration by 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.


Sec.  385.18  Public outreach.

    (a) Goals. (1) The goal of public outreach is to open and maintain 
channels of communication with the public throughout the implementation 
process for the Plan in order to:
    (i) Provide information about proposed activities;
    (ii) Make the public's desires, needs, and concerns known to 
decision-makers before decisions are reached; and
    (iii) Consider and respond to the public's views in reaching 
decisions.
    (2) In carrying out implementation activities for the Plan, the 
Corps of Engineers and non-Federal sponsors 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 and involve 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 or consensus on solutions to emerging issues.
    (b) General requirements. (1) The Corps of Engineers and non-
Federal sponsors shall provide a transparent, publicly accessible 
process through which scientific and technical information is used in 
the development of policy decisions throughout the implementation 
process for the Plan.
    (2) The Corps of Engineers and non-Federal sponsors shall develop 
and conduct outreach activities for project or program-level activities 
in order to provide information to the public and to provide 
opportunities for involvement by the public.
    (3) The Corps of Engineers and non-Federal sponsors shall monitor 
the effectiveness of outreach activities throughout the implementation 
process.
    (4) Project Management Plans and Program Management Plans shall 
include information concerning any outreach activities to be undertaken 
during the implementation of the project or activity.
    (5) 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 provided with an 
opportunity to comment at such meetings.
    (6) Public meetings and workshops shall be held at such times and 
locations as to facilitate participation by the public.
    (7) The Corps of Engineers and non-Federal sponsors shall provide 
opportunities for the public to review and comment on draft documents.
    (c) Outreach to socially and economically disadvantaged individuals 
and communities.
    (1) The Corps of Engineers and non-Federal sponsors shall develop 
and conduct public outreach activities to ensure that socially and 
economically disadvantaged individuals, including individuals with 
limited English proficiency, and communities are provided opportunities 
to review and comment during implementation of the Plan.
    (2) The Corps of Engineers and non-Federal sponsors shall monitor 
the effectiveness of outreach activities conducted to ensure that 
socially and economically disadvantaged individuals and communities, 
including individuals with limited English proficiency, are provided 
opportunities to review and comment during implementation of the Plan.
    (3) Project Management Plans and Program Management Plans shall 
include information, concerning any outreach activities to be 
undertaken during the implementation of the project or activity, to 
socially and economically disadvantaged individuals and communities, 
including individuals of limited English proficiency.
    (4) The Corps of Engineers and non-Federal sponsors shall make 
project and program information available in languages other than 
English where a significant number of individuals in the area affected 
by the project or program activity are expected to have limited English 
proficiency.
    (5) The Corps of Engineers and non-Federal sponsors 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 any 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 non-Federal sponsors shall consider and evaluate 
environmental justice issues and concerns in the implementation of 
projects.
    (c) During the implementation of the Plan, through appropriate 
means, consistent with section 601(k) of WRDA 2000 and other provisions 
of Federal law, the Corps of Engineers and non-Federal sponsors shall 
provide information to socially and economically disadvantaged 
individuals and communities, including individuals with limited English 
proficiency, about potential or anticipated contracting opportunities 
that are expected to result from implementation of the Plan.
    (d) 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)) throughout the 
implementation process. The District Engineer shall track the amount of 
contracts awarded to small business concerns owned and controlled by 
socially and economically disadvantaged individuals in order to ensure 
that they are provided such opportunities.


Sec.  385.20  Restoration Coordination and Verification (RECOVER).

    (a) RECOVER (Restoration Coordination and Verification) is an 
interagency and interdisciplinary scientific and technical team 
described 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 conduct assessment, evaluation, and planning and 
integration activities using the best available science that support 
implementation of the Plan with the overall goal of ensuring that the 
goals

[[Page 64231]]

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 teams that accomplish activities such as: 
developing system-wide performance measures; developing and 
implementing the monitoring and assessment program; evaluating 
alternatives developed by Project Delivery Teams to achieve the goals 
and purposes of the Plan; conducting system-wide water quality 
analyses; developing, refining, and applying system-wide models and 
tools; and evaluating modifications to the Plan. RECOVER is not a 
policy making body, but has technical and scientific responsibilities 
that support implementation of the Plan.
    (b) Documents or work products prepared or developed by RECOVER 
shall not be self-executing, but shall be provided as information for 
consideration 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 Miccosukee Tribe of Indians of Florida, the Seminole 
Tribe of Florida, the Florida Department of Environmental Protection, 
and other Federal, State, and local agencies. Technical information 
developed by RECOVER shall be available to the public.
    (c) The Corps of Engineers and the South Florida Water Management 
District shall 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, to use their expertise, to ensure 
that information developed by RECOVER is shared at the earliest 
possible time with agencies, tribes, and the public, 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 Oceanic and Atmospheric Administration of 
the Department of Commerce, the Florida Fish and Wildlife Conservation 
Commission, 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, the 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, 
coordination, or other activities required by applicable law, policy, 
or regulation.
    (d) The Corps of Engineers and the South Florida Water Management 
District shall:
    (1) Assign program managers from the Corps of Engineers and the 
South Florida Water Management District to be responsible for carrying 
out the activities of RECOVER; and
    (2) Establish a RECOVER Leadership Group to 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. In addition to the program 
managers, the RECOVER Leadership Group shall, consist of one member 
appointed by each of the following:
    (i) Environmental Protection Agency;
    (ii) National Oceanic and Atmospheric Administration;
    (iii) U.S. Fish and Wildlife Service;
    (iv) U.S. Geological Survey;
    (v) National Park Service;
    (vi) Miccosukee Tribe of Indians of Florida;
    (vii) Seminole Tribe of Florida;
    (viii) Florida Department of Agriculture and Consumer Services;
    (ix) Florida Department of Environmental Protection; and
    (x) Florida Fish and Wildlife Conservation Commission.
    (3) As necessary to assist the program managers, the Corps of 
Engineers and the South Florida Water Management District may add 
additional members to the RECOVER Leadership Group.
    (e) RECOVER shall perform assessment, evaluation, and planning and 
integration activities as described in this paragraph.
    (1) Assessment activities. In accordance with Sec.  385.31, RECOVER 
shall conduct credible scientific assessments of hydrological, water 
quality, biological, ecological, water supply, and other responses to 
the Plan. The Corps of Engineers and the South Florida Water Management 
District will ensure that these assessments incorporate the best 
available science and that the results are provided for external peer 
review, as appropriate, and are made fully available for public review 
and comment. RECOVER shall conduct assessment activities, including, 
but not limited to:
    (i) Developing proposed assessment performance measures for 
assessing progress towards the goals and purposes of the Plan;
    (ii) Developing a proposed monitoring plan to support the adaptive 
management program;
    (iii) Conducting monitoring and assessment activities as part of 
the adaptive management program to assess the actual performance of the 
Plan;
    (iv) Developing recommendations for interim goals in accordance 
with Sec.  385.38;
    (v) Assessing progress towards achieving the interim goals 
established pursuant to Sec.  385.38;
    (vi) Developing recommendations for interim targets in accordance 
with Sec.  385.39;
    (vii) Assessing progress towards achieving the interim targets 
established pursuant to Sec.  385.39; and
    (viii) Cooperating with the independent scientific review panel and 
external peer review in accordance with Sec.  385.22.
    (2) Evaluation activities. In accordance with Sec.  385.26(c) and 
Sec.  385.32, RECOVER shall assist Project Delivery Teams in ensuring 
that project design and performance is fully linked to the goals and 
purposes of the Plan and incorporating, as appropriate, information 
developed for Project Implementation Reports into the Plan. RECOVER 
shall conduct evaluation activities, including, but not limited to:
    (i) Developing proposed evaluation performance measures for 
evaluating alternative plans developed for the Project Implementation 
Report;
    (ii) Conducting evaluations of alternative plans developed for 
Project Implementation Reports and Comprehensive Plan Modification 
Reports; and
    (iii) Supporting development and refinement of predictive models 
and tools used in the evaluation of alternate plans developed by the 
Project Delivery Teams.
    (3) Planning and integration activities. RECOVER shall conduct 
planning and integration activities, in accordance

[[Page 64232]]

with Sec.  385.31, in support of the adaptive management program as a 
basis for identifying opportunities for improving the performance of 
the Plan and other appropriate planning and integration activities 
associated with implementation of the Plan. RECOVER shall conduct 
planning and integration activities, including, but not limited to:
    (i) Developing and refining conceptual and predictive models and 
tools in support of the integration of new science into the adaptive 
management program;
    (ii) Reviewing and synthesizing new information and science that 
could have an effect on the Plan;
    (iii) Developing proposed refinements and improvements in the 
design or operation of the Plan during all phases of implementation;
    (iv) Preparing technical information to be used in the development 
of the periodic reports to Congress prepared pursuant to Sec.  385.40; 
and
    (v) Analyzing proposed revisions to the Master Implementation 
Sequencing Plan.
    (f) In carrying out the functions described in this section, 
RECOVER shall consider the effects of activities and projects that are 
not part of the Plan, but which could affect the ability of the Plan to 
achieve its goals and purposes.
    (g) As appropriate, the Corps of Engineers and the South Florida 
Water Management District shall seek external peer review of RECOVER 
activities in accordance with Sec.  385.22(b).


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 a Technical Review Team to conduct reviews to ensure that 
products are consistent with established criteria, guidance, 
procedures, and policy. The members of the 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) Technical review is intended to be a continuous process 
throughout project implementation. The 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 and external peer review.

    (a) The independent scientific review panel required by section 
601(j). (1) Section 601(j) of WRDA 2000 requires that the Secretary of 
the Army, the Secretary of the Interior, and the Governor, in 
consultation with the South Florida Ecosystem Restoration Task Force, 
establish an independent scientific review panel, convened by a body, 
such as the National Academy of Sciences, to review the Plan's progress 
toward achieving the natural system restoration goals of the Plan. 
Section 601(j) also directs that this panel produce a biennial report 
to Congress, the Secretary of the Army, the Secretary of the Interior, 
and the Governor that includes an assessment of ecological indicators 
and other measures of progress in restoring the ecology of the natural 
system, based on the Plan.
    (2) To carry out section 601(j), the Department of the Army, the 
Department of the Interior, and the State shall establish an 
independent scientific review panel to conduct on-going review of the 
progress achieved by the implementation of the Plan in achieving the 
restoration goals of the Plan and shall provide the panel with the 
resources and cooperation necessary to ensure that the panel is able to 
function effectively.
    (3) Not later than June 14, 2004, the Secretary of the Army, the 
Secretary of the Interior, and the Governor, in consultation with the 
South Florida Ecosystem Restoration Task Force, shall enter into a 
five-year agreement, with options for extensions in five-year 
increments, with the National Academy of Sciences to convene this 
panel.
    (4) The Department of the Army, the Department of the Interior, and 
the State expect that the National Academy of Sciences will use 
established practices for assuring the independence of members and that 
the review panel will include members reflecting a balance of the 
knowledge, training, and experience suitable to comprehensively review 
and assess progress towards achieving natural system restoration goals 
of the Plan.
    (5) To ensure the independence of the section 601(j) panel, its 
sole mission shall be to review the Plan's progress toward achieving 
the natural system restoration goals of the Plan and to produce a 
biennial report to Congress, the Secretary of the Army, the Secretary 
of the Interior, and the Governor that includes an assessment of 
ecological indicators and other measures of progress in restoring the 
ecology of the natural system, based on the Plan. The Secretary of the 
Army, the Secretary of the Interior, the Governor, and the South 
Florida Ecosystem Restoration Task Force and its members, shall not 
attempt to influence the panel's review or assign this panel any other 
tasks, nor request any advice on any other matter, nor shall this panel 
accept any other tasks nor provide advice on any other matter, to any 
entity, whether Federal, State or local, whether public or private.
    (6) Before final establishment of the panel, the Department of the 
Army, the Department of the Interior, and the State, in consultation 
with the South Florida Ecosystem Restoration Task Force, shall be 
afforded the opportunity to review the list of panel members convened 
by the National Academy of Sciences.
    (7) The agreement shall recognize that the Department of the Army, 
the Department of the Interior, and the State retain the right and 
ability to establish other independent scientific review panels or 
external peer reviews when deemed necessary by those agencies for 
conducting specific scientific and technical reviews.
    (8) The Department of the Army, the Department of the Interior, and 
the State of Florida shall share the panel's costs. The Department of 
the Army and the Department of the Interior shall enter into a separate 
Memorandum of Agreement that will specify how the Federal agencies will 
pay the Federal share of these costs. The State's fifty percent share 
shall be accounted for in the design agreement between the Corps of 
Engineers and the South Florida Water Management District.
    (9) The panel shall produce a biennial report to Congress, the 
Secretary of the Army, the Secretary of the Interior, and the Governor, 
pursuant to section 601(j) of 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.
    (10) The Corps of Engineers and the South Florida Water Management 
District and other non-Federal sponsors shall cooperate with the 
independent scientific review panel, including responding to reasonable 
requests for information concerning the implementation of the Plan.
    (11) The Secretary of the Army, the Secretary of the Interior, and 
the Governor shall consult with the South

[[Page 64233]]

Florida Ecosystem Restoration Task Force in their decision to exercise 
each five-year option to extend the agreement with the National Academy 
of Sciences. Upon expiration of the agreement, the Secretary of the 
Army, the Secretary of the Interior, and the Governor shall consult the 
South Florida Ecosystem Restoration Task Force in selection of another 
body to convene the independent scientific review panel required by 
section 601(j) of WRDA 2000.
    (b) External peer review. (1) The Department of the Army, the 
Department of the Interior, the South Florida Water Management 
District, and other Federal, State, and local agencies, the Miccosukee 
Tribe of Indians of Florida and the Seminole Tribe of Florida may 
initiate an external peer review process to review documents, reports, 
procedures, or to address specific scientific or technical questions or 
issues relating to their jurisdiction.
    (2) In accordance with Sec.  385.12(d), draft Pilot Project 
Technical Reports shall be externally peer reviewed.
    (3) In accordance with Sec.  385.31(b), draft assessment reports 
prepared for the adaptive management program shall be externally peer 
reviewed.


Sec.  385.23  Dispute resolution.

    (a) Disputes with the non-Federal sponsor concerning a Project 
Cooperation Agreement shall be resolved under the specific dispute 
resolution procedures of that Project Cooperation Agreement.
    (b) Disputes with the non-Federal sponsor concerning design 
activities shall be resolved under the specific dispute resolution 
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 executed on September 9, 2002 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 appropriate, the subordinate tasks, as well as the assignment of 
responsibility for completing products and activities such as Project 
Implementation Reports, Pilot Project Design Reports, plans and 
specifications, real estate acquisition, construction contracts and 
construction, Comprehensive Plan Modification Reports, and other 
activities necessary to support implementation of the Plan.
    (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) Revisions 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, or Plans and Specifications. 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 Project Management Plan.


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 a program-level activity.
    (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) Revisions 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. 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 Program Management Plan.


Sec.  385.26  Project Implementation Reports.

    (a) General requirements. (1) The Project Implementation Report is 
a document that provides information on plan formulation and 
evaluation, engineering and design, estimated benefits and costs, 
environmental effects, and the additional information and analysis 
necessary for the Secretary of the Army to approve the project for 
implementation, or for Congress to authorize the project for 
implementation. 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,'' dated April 1, 1999 and the detailed design necessary to 
prepare plans and specifications required to proceed to

[[Page 64234]]

construction. Prior to requesting approval or authorization for the 
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's justification in accordance with section 
601(f)(2) of WRDA 2000, 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) Before completion of the draft Project Implementation Report, 
the Corps of Engineers and the non-Federal sponsor shall provide the 
South Florida Ecosystem Restoration Task Force with information about 
the alternative plans developed and evaluated for the Project 
Implementation Report.
    (3) The Project Implementation Report shall:
    (i) Be consistent with the Plan and applicable law, policy, and 
regulation, including the Principles and Guidelines of the Water 
Resources Council, as modified by section 601(f)(2)(A) of WRDA 2000;
    (ii) Be based on the best available science;
    (iii) Comply with all applicable Federal, State, and Tribal laws;
    (iv) Contain sufficient information for proceeding to final design 
of the project, such as: additional plan formulation and evaluation, 
environmental and/or economic benefits, engineering and design, costs, 
environmental impacts, real estate requirements, and the preparation of 
the appropriate National Environmental Policy Act documentation;
    (v) Contain the information necessary to determine that the 
activity is justified by the environmental benefits derived by the 
South Florida ecosystem in accordance with section 601(f)(2)(A) and/or 
that the benefits of the project are commensurate with costs, and that 
the project is cost-effective;
    (vi) Comply, in accordance with section 601(b)(2)(A)(ii) of WRDA 
2000, with applicable water quality standards and applicable water 
quality permitting requirements;
    (vii) Identify, in accordance with Sec.  385.35, the appropriate 
quantity, timing, and distribution of water dedicated and managed for 
the natural system;
    (viii) Identify, in accordance with Sec.  385.35, the amount of 
water to be reserved or allocated for the natural system under State 
law necessary to implement the provisions in paragraphs (a)(3)(vi) and 
(vii) of this section;
    (ix) Identify the quantity, timing, and distribution of water made 
available for other water-related needs of the region;
    (x) Determine, in accordance with Sec.  385.36, if existing legal 
sources of water are to be eliminated or transferred;
    (xi) Determine, in accordance with Sec.  385.37(b) that 
implementation of the selected alternative will not reduce levels of 
service for flood protection that:
    (A) Were in existence on the date of enactment of section 601 of 
WRDA 2000; and
    (B) Are in accordance with applicable law; and consider, as 
appropriate, in accordance with Sec.  385.37(c), opportunities to 
provide additional flood protection;
    (xii) Include an assessment of the monetary and non-monetary 
benefits and costs, optimization and justification, cost-effectiveness, 
and engineering feasibility of the project;
    (xiii) Include a discussion of any significant changes in cost or 
scope of the project from that presented in the ``Final Integrated 
Feasibility Report and Programmatic Environmental Impact Statement,'' 
dated April 1, 1999;
    (xiv) Include an analysis, prepared by RECOVER as described in 
paragraph (c) of this section, of the project's contributions towards 
achieving the goals and purposes of the Plan, including, as 
appropriate, suggestions for improving the performance of the 
alternative plans;
    (xv) Describe how the project contributes to the achievement of 
interim goals established pursuant to Sec.  385.38 and the interim 
targets established pursuant to Sec.  385.39;
    (xvi) Include, in accordance with Sec.  385.28(c), a draft Project 
Operating Manual as an appendix; and
    (xvii) 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.
    (4) 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.
    (5) The Corps of Engineers and the South Florida Water Management 
District shall develop a guidance memorandum in accordance with Sec.  
385.5 for approval by the Secretary of the Army, with the concurrence 
of the Secretary of the Interior and the Governor, that describes the 
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. In preparing a Project 
Implementation Report, the Corps of Engineers and the non-Federal 
sponsor shall formulate and evaluate alternative plans to optimize the 
project's contributions towards achieving the goals and purposes of the 
Plan, and to develop justified and cost-effective ways to achieve the 
benefits of the Plan.
    (1) General. The Corps of Engineers and the South Florida Water 
Management District shall develop a guidance memorandum in accordance 
with Sec.  385.5 for approval by the Secretary of the Army, with the 
concurrence of the Secretary of the Interior and the Governor, that 
describes the processes to be used to formulate and evaluate 
alternative plans and their associated monetary and non-monetary 
benefits and costs, determine cost-effectiveness and optimize the 
project's contribution towards achieving the goals and purposes of the 
Plan, and the basis for justifying and selecting an alternative to be 
recommended for implementation. The guidance memorandum shall also 
provide a process for evaluating projects that are outside the boundary 
of regional computer models or projects whose effects cannot be 
captured in regional computer models. Project Implementation Reports 
approved by the Secretary of the Army before December 12, 2003 or 
before the development of the guidance memorandum may use whatever 
method that, in the Secretary of the Army's discretion, is deemed 
appropriate and is consistent with applicable law, policy, and 
regulations.
    (2) Project formulation and evaluation. The guidance memorandum 
shall describe the process for formulating and evaluating alternative 
plans for their ability to optimize contributions for achieving the 
goals and purposes of the Plan. The guidance memorandum shall describe 
the process for including each alternative plan with all of the other 
components of the Plan and evaluating the total monetary and non-
monetary benefits and costs of the resulting comprehensive plan when 
compared to the without CERP

[[Page 64235]]

condition. In formulating alternative plans to be evaluated, the 
project as described in the ``Final Integrated Feasibility Report and 
Programmatic Environmental Impact Statement,'' dated April 1, 1999 
shall be included as one of the alternative plans that is evaluated. 
For the selected plan, the guidance memorandum shall also describe the 
process for evaluating that plan as the next-added increment of the 
Plan.
    (3) Identification of selected alternative plan. The guidance 
memorandum shall also include a process for identification of a 
selected alternative plan, based on the analyses conducted in paragraph 
(b)(2) of this section. The alternative plan to be selected should be 
the plan that maximizes net benefits, both monetary and non-monetary, 
on a system-wide basis, provided that this plan is justified on a next-
added increment basis. Alternative plans that are not justified on a 
next-added increment basis shall not be selected. The guidance 
memorandum shall describe an iterative process for evaluating and/or 
combining alternative options until an alternative is identified that 
maximizes net benefits while still providing benefits that justify 
costs on a next-added increment basis.
    (c) RECOVER performance evaluation of alternative plans. (1) Prior 
to the identification of a selected alternative plan, RECOVER shall 
evaluate the performance of alternative plans towards achieving the 
goals and purposes of the Plan.
    (2) RECOVER shall prepare information for the Project Delivery Team 
describing the results of the evaluations of alternative plans 
developed for the Project Implementation Report towards achieving the 
goals and purposes of the Plan, including, as appropriate, suggestions 
for improving the performance of the alternative plans.
    (d) NEPA documentation for Project Implementation Reports. (1) The 
Corps of Engineers and the non-Federal sponsor shall prepare the 
appropriate NEPA document to accompany the Project Implementation 
Report. The NEPA document shall contain an analysis of the effects of 
the alternatives formulated for 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) 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 
activities to be conducted for compliance with the Fish and Wildlife 
Coordination Act and other applicable laws.
    (3) Consistent with applicable law, policy, and regulations, 
coordination shall include preparation of the following documents as 
shown in figure 2 in Appendix A of this part:
    (i) Planning Aid Letter that describes issues and opportunities 
related to the conservation and enhancement of fish and wildlife 
resources; and
    (ii) Draft and final Fish and Wildlife Coordination Act Reports 
that provide the formal views and recommendations of the U.S. Fish and 
Wildlife Service or 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 the public to review and comment on the draft Project 
Implementation Report and NEPA document, in accordance with Sec.  
385.18 and applicable law and Corps of Engineers policy.
    (2) The Project Implementation Report shall contain an appropriate 
letter of intent from the non-Federal sponsor indicating concurrence 
with the recommendations of the Project Implementation Report.
    (3) Upon the completion of the Project Implementation Report and 
NEPA document, the District Engineer shall submit the report and NEPA 
document to the Division Engineer.
    (4) Upon receipt and approval of the Project Implementation Report 
the Division Engineer shall issue a public notice announcing completion 
of the Project Implementation Report based upon:
    (i) The Division Engineer's endorsement of the findings and 
recommendations of the District Engineer; and
    (ii) The Division Engineer's assessment that the project has been 
developed and the report prepared in accordance with current law and 
policy. The notice shall indicate that the report has been submitted to 
Corps of Engineers Headquarters for review.
    (5) Headquarters, U.S. Army Corps of Engineers shall conduct a 
review in accordance with applicable policies and regulations of the 
Corps of Engineers. Headquarters, U.S. Army Corps of Engineers shall 
administer the 30-day state and agency review of the Project 
Implementation Report, and as appropriate, file the Environmental 
Impact Statement with the Environmental Protection Agency.
    (6) After completion of the review and other requirements of law 
and policy, the Chief of Engineers shall submit the Project 
Implementation Report and the Chief of Engineers' recommendations on 
the project to the Assistant Secretary of the Army for Civil Works.
    (7) The Assistant Secretary of the Army for Civil Works shall 
review all Project Implementation Reports, and shall, prior to either 
approving them or submitting the Assistant Secretary's recommendations 
to Congress, coordinate the project and proposed recommendations with 
the Office of Management and Budget.
    (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 review the 
Project Implementation Report prior to submitting the Assistant 
Secretary's recommendations 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 review the Project Implementation Report prior to 
submitting the Assistant Secretary's recommendations regarding 
authorization to Congress.


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.

[[Page 64236]]

    (b) Verification of water reservations. The Project Cooperation 
Agreement shall include a finding that the South Florida Water 
Management District or the Florida Department of Environmental 
Protection has executed under State law the reservation or allocation 
of water for the natural system as identified in the Project 
Implementation Report. Prior to execution of the Project Cooperation 
Agreement, the District Engineer shall verify in writing that the South 
Florida Water Management District or the Florida Department of 
Environmental Protection has executed under State law the reservation 
or allocation of water for the natural system as identified in the 
Project Implementation Report. The District Engineer's verification 
shall provide the basis for the finding in the Project Cooperation 
Agreement and be made available to the public.
    (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.
    (1) The District Engineer shall, 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, verify in writing 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.
    (2) The Secretary of the Army shall notify the appropriate 
committees of Congress whenever a change to the reservation or 
allocation of water for the natural system executed under State law as 
described in the Project Implementation Report has been made. Such 
notification shall include the Secretary's and the State's reasons for 
determining 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. The Secretary of the Army's notification 
to the appropriate committees of Congress shall be made available to 
the public.
    (d) Savings clause provisions. The Project Cooperation Agreement 
shall ensure that the Corps of Engineers and the non-Federal sponsor 
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 shall consist of a System Operating Manual 
and Project Operating Manuals. In general, the System Operating Manual 
provides a system-wide operating plan for the operation of the projects 
of the Plan and other C&SF Project features and the Project Operating 
Manuals provide the details necessary for integrating the operation of 
the individual projects with the system operation described in the 
System Operating Manual.
    (3) In accordance with Sec.  385.18, the public shall have the 
opportunity to review and comment on draft Operating Manuals.
    (4) The Division Engineer and the non-Federal sponsor shall approve 
completed Operating Manuals.
    (5) The Corps of Engineers and the South Florida Water Management 
District shall develop a guidance memorandum in accordance with Sec.  
385.5 for approval by the Secretary of the Army, with the concurrence 
of the Secretary of the Interior and the Governor, that describes the 
content of Operating Manuals and the tasks necessary to develop 
Operating Manuals.
    (6) Operating Manuals shall:
    (i) Be consistent with the goals and purposes of the Plan;
    (ii) Comply with NEPA, in accordance with Sec.  385.14.
    (iii) Describe regulation schedules, water control, and operating 
criteria for a project, group of projects, or the entire system;
    (iv) 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;
    (v) Be consistent with applicable water quality standards and 
applicable water quality permitting requirements;
    (vi) Be consistent with the reservation or allocation of water 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 and 
reflect the operational criteria used in the identification of the 
appropriate quantity, timing, and distribution of water dedicated and 
managed for the natural system;
    (vii) Include a drought contingency plan as required by Sec.  
222.5(i)(5) of this chapter and Engineer Regulation ER 1110-2-1941 
``Drought Contingency Plans'' that is consistent with the Water Rights 
Compact Among the Seminole Tribe of Florida, the State of Florida, and 
the South Florida Water Management District and Florida Administrative 
Code Section 40E-21 (Water Shortage Plan) and Florida Administrative 
Code Section 40E-22 (Regional Water Shortage Plan); and
    (viii) Include provisions authorizing temporary short-term 
deviations from the Operating Manual for emergencies and unplanned 
circumstances, 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.
    (A) Emergency deviations. Examples of some emergencies that can be 
expected to occur at a project are: drowning and other accidents, 
failure of the operation facilities, chemical spills, treatment plant 
failures and other temporary pollution problems. Water control actions 
necessary to abate the problem are taken immediately unless such action 
would create equal or worse conditions.
    (B) Unplanned circumstances. There are unplanned circumstances that 
create

[[Page 64237]]

a temporary need for minor deviations from the Operating Manual, 
although they are not considered emergencies. Deviations are sometimes 
necessary to carry out maintenance and inspection of facilities. 
Requests for deviations for unplanned circumstances generally involve 
time periods ranging from a few hours to a few days. Approval of these 
changes shall be obtained from the Division Engineer.
    (7) 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) Not later than December 31, 2005, 
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 Central and Southern Florida 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 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 for the 
Central and Southern Florida Project shall remain in effect until 
approval of the System Operating Manual.
    (3) The System Operating Manual shall be revised 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, believe it is necessary to ensure that the goals and 
purposes of the Plan are achieved.
    (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.
    (5) The Corps of Engineers and the South Florida Water Management 
District shall provide notice and opportunity for public comment for 
any significant modification to the System Operating Manual.
    (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 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 appropriate, the draft Project Operating Manual shall be 
revised for the project construction phase and the operational 
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.
    (6) The Corps of Engineers and the non-Federal sponsor shall 
provide notice and opportunity for public comment for any significant 
modification to the Project Operating Manual.


Sec.  385.29  Other project documents.

    (a) As appropriate, the Corps of Engineers and the non-Federal 
sponsor may prepare design documents to provide additional design 
information needed for projects. 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 
projects. 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 appropriate during the real estate acquisition and 
construction phases for projects. 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) Not later than December 13, 2004 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 sequencing and 
scheduling 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. 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 Master Implementation 
Sequencing Plan.
    (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, consistent with the 
requirement that each project be justified on a next-added increment 
basis, including the achievement of the interim goals established 
pursuant to Sec.  385.38 and the interim targets established pursuant 
Sec.  385.39, consistent with Sec.  385.36 and Sec.  385.37(b), and to 
the extent practical given funding, engineering, and other constraints. 
The sequencing and scheduling of projects shall be based on considering 
factors, including, but not limited to:
    (i) Technical dependencies and constraints;
    (ii) Benefits to be provided by the project;
    (iii) Availability of lands required for the project; and
    (iv) Avoiding elimination or transfers of existing legal sources of 
water until

[[Page 64238]]

an alternate source of comparable quantity and quality is available, in 
accordance with Sec.  385.36.
    (2) The Master Implementation Sequencing Plan shall include 
appropriate discussion of the logic, constraints, and other parameters 
used in developing the sequencing and scheduling of projects.
    (3) In accordance with Sec.  385.18, the Corps of Engineers and the 
South Florida Water Management District shall provide opportunities for 
the public to review and comment on the Master Implementation 
Sequencing Plan.
    (b) Whenever necessary to ensure that the goals and purposes of the 
Plan are achieved, but at least every five years, 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 
appropriate, consistent with the goals and purposes of the Plan, and 
consistent with Sec.  385.36 and Sec.  385.37(b), to incorporate new 
information including, but not limited to:
    (i) Updated schedules from Project Management Plans;
    (ii) Information obtained from pilot projects;
    (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) Information regarding progress towards achieving the interim 
goals established pursuant to Sec.  385.38 and the interim targets 
established pursuant to Sec.  385.39.
    (2) Proposed revisions to the Master Implementation Sequencing Plan 
shall be analyzed by RECOVER for effects on achieving the goals and 
purposes of the Plan and the interim goals and targets.
    (3) The revised Master Implementation Sequencing Plan shall include 
information about the reasons for the changes to the sequencing and 
scheduling of individual projects.
    (4) In accordance with Sec.  385.18, the Corps of Engineers and the 
South Florida Water Management District 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 South Florida ecosystem 
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 interim targets 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 net benefits, or to 
improve cost effectiveness; and to seek continuous improvement of the 
Plan based upon new information resulting from changed or unforeseen 
circumstances, new scientific and technical information, new or updated 
modeling; information developed through the assessment principles 
contained in the Plan; and future authorized changes to the Plan 
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 develop an assessment 
program to assess responses of the system to implementation of the 
Plan. The Corps of Engineers and the South Florida Water Management 
District shall develop a guidance memorandum in accordance with Sec.  
385.5 for approval by the Secretary of the Army, with the concurrence 
of the Secretary of the Interior and the Governor, that describes the 
processes to be used to conduct these assessments.
    (2) RECOVER shall develop a monitoring program that is designed to 
measure status and trends towards achieving the goals and purposes of 
the Plan throughout the South Florida ecosystem.
    (3) RECOVER shall conduct monitoring activities and 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 desirable and are 
achieving the interim goals and the interim targets 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 reports on the monitoring program.
    (4) Whenever it is deemed necessary, but at least every five years, 
RECOVER shall prepare a technical report that presents an assessment of 
whether the goals and purposes of the Plan are being achieved, 
including whether the interim goals and interim targets are being 
achieved or are likely to be achieved. The technical report shall be 
provided to the Corps of Engineers and the South Florida Water 
Management District for use in preparing the assessment report. The 
technical report prepared by RECOVER shall also be made available to 
the public.
    (i) The Corps of Engineers and the South Florida Water Management 
District shall consult 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 in the development of the assessment report. 
The Corps of Engineers and the South Florida Water Management District 
shall also consult with the South Florida Ecosystem Restoration Task 
Force in developing the assessment report.
    (ii) In accordance with Sec.  385.22(b), the draft assessment 
report shall be externally peer reviewed.
    (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.
    (iv) The Corps of Engineers and the South Florida Water Management 
District shall transmit the final assessment report to the Secretary of 
the Army, the Secretary of the Interior, and the Governor.
    (v) The Secretary of the Army shall make the final assessment 
report available to the public.
    (c) Periodic CERP updates. Not later than June 14, 2004 and 
whenever necessary to ensure that the goals and purposes of the Plan 
are achieved, but not any less often than every five years, the Corps 
of Engineers and the South

[[Page 64239]]

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, conduct an 
evaluation of the Plan using new or updated modeling that includes the 
latest scientific, technical, and planning information. As part of the 
evaluation of the Plan, the Corps of Engineers and the South Florida 
Water Management District shall determine the total quantity of water 
that is expected to be generated by implementation of the Plan, 
including the quantity expected to be generated for the natural system 
to attain restoration goals as well as the quantity expected to be 
generated for use in the human environment. The Corps of Engineers and 
the South Florida Water Management District shall also consult with the 
South Florida Ecosystem Restoration Task Force in conducting the 
evaluation of the Plan. As appropriate, the results of the evaluation 
of the Plan may be used to initiate management actions in accordance 
with paragraph (d) of this section that are necessary to seek 
continuous improvement of the Plan based upon new information resulting 
from changed or unforeseen circumstances, new scientific and technical 
information, new or updated modeling; information developed through the 
assessment principles contained in the Plan; and future authorized 
changes to the Plan integrated into the implementation of the Plan. In 
addition, and as appropriate, the results of the evaluation of the Plan 
may be used to consider changes to the interim goals in accordance with 
Sec.  385.38 and changes to the interim targets in accordance with 
Sec.  385.39.
    (d) Management actions. (1) In seeking continuous improvement of 
the Plan based upon new information resulting from changed or 
unforeseen circumstances, new scientific and technical information, new 
or updated modeling; information developed through the assessment 
principles contained in the Plan; and future authorized changes to the 
Plan integrated into the implementation of the Plan, 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 Seminole Tribe of Florida, the Miccosukee Tribe of 
Indians of Florida, the Florida Department of Environmental Protection, 
and other Federal, State, and local agencies, use the assessment report 
prepared in accordance with paragraph (b) of this section, information 
resulting from independent scientific review and external peer review 
in accordance with Sec.  385.22, or other appropriate information 
including progress towards achievement of the interim goals established 
pursuant to Sec.  385.38 and the interim targets established pursuant 
to Sec.  385.39 to determine if the activities described in paragraph 
(d)(2) of this section should be undertaken to ensure that the goals 
and purposes of the Plan are achieved. 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) Such actions should be implemented through revisions to 
Operating Manuals in accordance with Sec.  385.28, revisions to the 
Master Implementation Sequencing Plan in accordance with Sec.  385.30, 
a Comprehensive Plan Modification Report in accordance with Sec.  
385.32, or other appropriate mechanisms.


Sec.  385.32  Comprehensive Plan Modification Report

    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, or to 
ensure that each project of the Plan is justified on a next-added 
increment basis, 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.  385.14, 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 Comprehensive Plan Modification 
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 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, after 
consideration of the assessment report prepared in accordance with 
Sec.  385.31(b), 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, the Coastal Zone Management Act, the Marine Mammal Protection Act, 
and any other applicable law;
    (3) Contain information such as: Plan formulation and evaluation, 
engineering and design, estimated benefits and costs, and environmental 
effects,;
    (4) Include appropriate analyses of alternatives evaluated by 
RECOVER;
    (5) Include updated water budget information for the Plan, 
including the total quantity of water that is expected to be generated 
by implementation of the Plan, and the quantity expected to be 
generated for the natural system to attain restoration goals as well as 
the

[[Page 64240]]

quantity expected to be generated for use in the human environment;
    (6) 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
    (7) 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 the public to review and 
comment on the draft Comprehensive Plan Modification Report and NEPA 
document, in accordance with Sec.  385.18 and applicable law and Corps 
of Engineers policy.
    (2) The Comprehensive Plan Modification Report shall contain an 
appropriate letter of intent from the South Florida Water Management 
District indicating concurrence with the recommendations of the 
Comprehensive Plan Modification Report.
    (3) Upon the completion of the Comprehensive Plan Modification 
Report and NEPA document, the District Engineer shall submit the report 
and NEPA document to the Division Engineer.
    (4) Upon receipt and approval of the Comprehensive Plan 
Modification Report, the Division Engineer shall issue a public notice 
announcing completion of the Comprehensive Plan Modification Report 
based upon:
    (i) The Division Engineer's endorsement of the findings and 
recommendations of the District Engineer; and
    (ii) The Division Engineer's assessment that the report has been 
prepared in accordance with current law and policy. The notice shall 
indicate that the report has been submitted to Corps of Engineers 
Headquarters for review.
    (5) Headquarters, U.S. Army Corps of Engineers shall conduct a 
review in accordance with applicable policies and regulations of the 
Corps of Engineers. Headquarters, U.S. Army Corps of Engineers shall 
administer the 30-day state and agency review of the Comprehensive Plan 
Modification Report, and, as appropriate, file the Environmental Impact 
Statement with the Environmental Protection Agency.
    (6) After completion of the policy review and other requirements of 
law and policy, the Chief of Engineers shall submit the Comprehensive 
Plan Modification Report and the Chief of Engineers' recommendations to 
the Assistant Secretary of the Army for Civil Works.
    (7) The Assistant Secretary of the Army for Civil Works shall 
review the Comprehensive Plan Modification Report and shall, prior to 
submitting the Assistant Secretary's recommendations to Congress, 
coordinate the proposed recommendations with the Office of Management 
and Budget.
    (c) Minor changes to the Plan. The Plan requires a process for 
adaptive management and incorporation of new information. As a result 
of this process, minor adjustments in the Plan may be made through 
Project Implementation Reports. 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 changes to the Plan that would require a 
supplement to the programmatic Environmental Impact Statement. The 
Corps of Engineers and the 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 
Plan, 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 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.
    (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 appropriate, RECOVER shall review the adequacy of 
system-wide simulation models and analytical tools used in the 
evaluation and assessment of projects, and shall propose improvements 
in system-wide 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 the Army 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 annually 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 annually provide to the Office of 
Management and Budget an updated estimate of total cost of the Plan, 
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.

[[Page 64241]]

Subpart E--Ensuring Protection of the Natural System and Water 
Availability Consistent With the Goals and Purpose of the Plan


Sec.  385.35  Achievement of the benefits of the Plan.

    (a) Pre-CERP baseline water availability and quality. (1) Not later 
than June 14, 2004 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 for approval by the 
Secretary of the Army, the pre-CERP baseline to be used to aid the 
Corps of Engineers and the South Florida Water Management District in 
determining if existing legal sources of water will be eliminated or 
transferred as a result of project implementation as described in Sec.  
385.36 and memorialize the pre-CERP baseline in an appropriate 
document. The Corps of Engineers and the South Florida Water Management 
District shall consult with the South Florida Ecosystem Restoration 
Task Force in the development of the pre-CERP baseline.
    (i) The pre-CERP baseline 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.
    (ii) The pre-CERP baseline shall include appropriate documentation 
that includes a description of the assumptions used to develop the pre-
CERP baseline.
    (iii) In addition to the development of the pre-CERP baseline, the 
Corps of Engineers and the South Florida Water Management District 
shall conduct other analyses that they deem necessary to determine if 
an existing legal source of water has been eliminated or transferred or 
if a new source of water is of comparable quality to that which has 
been eliminated or transferred in accordance with Sec.  385.36.
    (2) In accordance with Sec.  385.18, the Corps of Engineers and the 
South Florida Water Management District shall provide opportunities for 
the public to review and comment on the pre-CERP baseline.
    (3) The pre-CERP baseline shall be developed with the concurrence 
of the Secretary of the Interior and the Governor. Within 180 days of 
being provided the pre-CERP baseline, or such shorter period that the 
Secretary of the Interior and the Governor may agree to, the Secretary 
of the Interior and the Governor shall provide the Secretary of the 
Army with a written statement of concurrence or non-concurrence with 
the pre-CERP baseline. A failure to provide a written statement of 
concurrence or non-concurrence within such time frame shall be deemed 
as meeting the concurrency process of this section. A copy of any 
concurrency or non-concurrency statements shall be made a part of the 
administrative record and referenced in the final determination of the 
pre-CERP baseline. Any non-concurrency statement shall specifically 
detail the reason or reasons for the non-concurrence.
    (4) Nothing in this paragraph 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.
    (b) Identification of water made available and water to be reserved 
or allocated for the natural system. (1) Initial modeling showed that 
most of the water generated by the Plan would go to the natural system 
in order to attain restoration goals, and the remainder of the water 
would go for use in the human environment. The Corps of Engineers, the 
South Florida Water Management District, and other non-Federal sponsors 
shall ensure that Project Implementation Reports identify the 
appropriate quantity, timing, and distribution of water to be dedicated 
and managed for the natural system that is necessary to meet the 
restoration goals of the Plan. In accordance with the ``Comprehensive 
Everglades Restoration Plan Assurance of Project Benefits Agreement,'' 
dated January 9, 2002 pursuant to section 601(h)(2) of WRDA 2000, the 
South Florida Water Management District or the Florida Department of 
Environmental Protection shall make sufficient reservations of water 
for the natural system under State law in accordance with the Project 
Implementation Report for that project and consistent with the Plan 
before water made available by a project is permitted for a consumptive 
use or otherwise made unavailable. In accordance with Sec.  385.31(c), 
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, determine the total quantity of water that 
is expected to be generated by implementation of the Plan, including 
the quantity expected to be generated for the natural system to attain 
restoration goals as well as the quantity expected to be generated for 
use in the human environment, and shall periodically update that 
estimate, as appropriate, based on 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.
    (2) Each Project Implementation Report shall take into account the 
availability of pre-CERP baseline water and previously reserved water 
as well as the estimated total quantity of water that is necessary for 
restoration for the natural system and the quantity of water 
anticipated to be made available from future projects 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.
    (3) Section 601(h)(3)(C)(i)(I) of WRDA 2000 requires the 
regulations of 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 develop a guidance memorandum in accordance with Sec.  385.5 for 
approval by the Secretary of the Army, with the

[[Page 64242]]

concurrence of the Secretary of the Interior and the Governor. 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 the quantity, timing and 
distribution of water made available for other water-related needs of 
the region; determining whether improvements in water quality are 
necessary to ensure that water delivered by the Plan 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 using a 
system-wide analysis of the water made available 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 WRDA 1996 and WRDA 2000.
    (ii) The guidance memorandum shall generally take into account the 
natural fluctuation of water made available in any given year based on 
an appropriate period of record; 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 by the Plan meets applicable water 
quality standards.
    (iii) Project Implementation Reports approved before December 12, 
2003 or before 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 paragraph 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.
    (c) Procedures in event that the project does not perform as 
expected. The Project Implementation Report shall include a plan for 
operations of the project in the event that the project fails to 
provide the quantity, timing, or distribution of water described in the 
Project Implementation Report. Such plan shall take into account the 
specific authorized purposes of the project and the goals and purposes 
of the Plan and shall also provide for undertaking management actions 
in accordance with Sec.  385.31(d).


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 eliminated or 
transferred as a result of project implementation. If implementation of 
the project shall cause an elimination or transfer of existing legal 
sources of water, then the Project Implementation Report shall include 
an implementation plan that ensures that such elimination or transfer 
shall not occur until a new source of water of comparable quantity and 
quality is available to replace the water to be lost as a result of 
implementation of the Plan. The Corps of Engineers and the non-Federal 
sponsor shall determine if implementation of the project will cause an 
elimination or transfer of existing legal sources of water by comparing 
the availability of water with the recommended project with the pre-
CERP baseline developed in accordance with Sec.  385.35(a), by using 
the water quality and other analyses developed in Sec.  
385.35(a)(1)(iii), and by using other appropriate information.
    (b) The Corps of Engineers and the South Florida Water Management 
District shall develop a guidance memorandum in accordance with Sec.  
385.5 for approval by the Secretary of the Army, with the concurrence 
of the Secretary of the Interior and the Governor, that describes the 
process for determining if existing legal sources of water are to be 
eliminated or transferred and for determining how and when a new source 
of water of comparable quantity and quality as that available on the 
date of enactment of WRDA 2000 is available to replace the water to be 
lost as a result of implementation of the Plan. The guidance memorandum 
shall also describe the process for comparing the recommended project 
with the pre-CERP baseline to determine if existing legal sources of 
water are to be transferred or eliminated as a result of project 
implementation. The guidance memorandum shall include a definition for 
existing legal sources of water for the purposes of determining if 
existing legal sources of water are to be eliminated or transferred. 
Existing legal sources of water shall include those for:
    (1) An agricultural or urban water supply;
    (2) Allocation or entitlement to the Seminole Indian Tribe of 
Florida under section 7 of the Seminole Indian Land Claims Settlement 
Act of 1987 (25 U.S.C. 1772e);
    (3) The Miccosukee Tribe of Indians of Florida;
    (4) Water supply for Everglades National Park; and
    (5) Water supply for fish and wildlife.
    (c) Until guidance is issued, issues involving existing legal 
sources of water should be resolved on a case-by-case basis considering 
all factors that can be identified as relevant to decisions under the 
savings clause.


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) Existing flood protection. Each Project Implementation Report 
shall include appropriate analyses, and consider the operational 
conditions included in the pre-CERP baseline developed pursuant to 
Sec.  385.35(a), to demonstrate that the levels of service for flood 
protection that:
    (1) Were in existence on the date of enactment of section 601 of 
WRDA 2000; and
    (2) Are in accordance with applicable law, will not be reduced by 
implementation of the project.
    (c) Improved and new 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. As appropriate, 
the Corps of Engineers and the non-Federal sponsor shall consider 
opportunities to provide additional flood protection, consistent with 
restoration of the natural system, and the provisions of section

[[Page 64243]]

601(f)(2)(B) of WRDA 2000 and other applicable laws.


Sec.  385.38  Interim goals.

    (a) Agreement. (1) The Secretary of the Army, the Secretary of the 
Interior, and the Governor shall, not later than December 13, 2004, and 
in consultation with the Environmental Protection Agency, the 
Department of Commerce, the Miccosukee Tribe of Indians of Florida, the 
Seminole Tribe of Florida, 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 Plan and to provide a means 
by which the restoration success of the Plan may be evaluated, and 
ultimately reported to Congress in accordance with Sec.  385.40 
throughout the implementation process.
    (2) After execution of the Interim Goals Agreement, the Department 
of the Army shall memorialize the agreement in appropriate Corps of 
Engineers guidance.
    (b) Purpose. (1) Interim goals are a means 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 changes to 
the Plan. Interim goals are not standards or schedules enforceable in 
court.
    (2) The interim goals shall:
    (i) Facilitate inter-agency planning, monitoring and assessment;
    (ii) Be provided to the independent scientific review panel 
established in accordance with Sec.  385.22(a);
    (iii) Be considered in developing the Master Implementation 
Sequencing Plan, Project Implementation Reports, and Comprehensive Plan 
Modification Reports; and
    (iv) Be considered in making budgetary decisions concerning 
implementation of the Plan.
    (3) 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 (d) of this section, to reflect new information 
resulting from changed or unforeseen circumstances, new scientific and 
technical information, new or updated modeling; information developed 
through the assessment principles contained in the Plan; and future 
authorized changes to the Plan integrated into the implementation of 
the Plan.
    (4) The Corps of Engineers and the South Florida Water Management 
District shall sequence and schedule projects as appropriate to achieve 
the interim goals and the interim targets established pursuant to Sec.  
385.39 to the extent practical given funding, technical, or other 
constraints.
    (5) 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 determine why the interim goals have not been met or are 
unlikely to be met and either:
    (i) Initiate adaptive management actions pursuant to Sec.  
385.31(d) to achieve the interim goals as soon as practical, consistent 
with the purposes of the Plan and consistent with the interim targets 
established pursuant to Sec.  385.39; or
    (ii) Recommend changes to the interim goals in accordance with 
paragraph (b)(3) of this section.
    (c) Principles for developing interim goals. (1) RECOVER, using 
best available science and information, shall recommend a set of 
interim goals for implementation of the Plan, 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, Biscayne Bay, Florida Bay, and other estuaries and 
nearshore areas. 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 for the natural system provided by the Plan in five-year 
increments that begin in 2005, with the goals reflecting the results 
expected to be achieved by 2010 and for each five-year increment 
thereafter. The interim goals shall be developed through the use of 
appropriate models and tools and shall provide a quantitative basis for 
evaluating the restoration success of the Plan during the period of 
implementation. In developing the interim goals for the five-year 
increments, RECOVER shall use the Master Implementation Sequencing Plan 
as the basis for predicting performance at a given time. RECOVER may 
recommend additional interim goals in addition to those initially 
developed and may propose revisions to the initial set of interim goals 
as new information is gained through adaptive management. Interim goals 
shall include incremental improvements in the quantity, quality, 
timing, and distribution of water anticipated to be required to meet 
long-term hydrological and ecological restoration goals, based on best 
available science. These goals may be modified, based on best available 
science and the adaptive assessment principles contained in the Plan, 
in accordance with paragraph (d) of this section.
    (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 that will be available to the natural system;
    (D) The frequency of extreme high and low water levels in Lake 
Okeechobee; and
    (E) The frequency of meeting salinity envelopes in estuaries such 
as the St. Lucie, Caloosahatchee, Biscayne Bay, and Florida Bay and 
nearshore areas.
    (ii) Improvement in water quality; including:
    (A) Total phosphorus concentrations in the Everglades; and
    (B) Lake Okeechobee phosphorus concentrations.
    (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 Corps of Engineers, The Department 
of the Interior, and the South Florida Water Management District 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 affect achievement of the goals.
    (d) Process for establishing interim goals. (1) The recommendations 
of RECOVER shall be provided to the

[[Page 64244]]

Corps of Engineers, the Department of the Interior, and the South 
Florida Water Management District. These recommendations shall be 
provided no later than June 14, 2004. The proposed Interim Goals 
Agreement shall be developed by the Secretary of the Army, the 
Secretary of the Interior and the Governor in consultation with the 
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, 
the Environmental Protection Agency, the Department of the Commerce, 
other Federal, State, and local agencies, and the South Florida 
Ecosystem Restoration Task Force. In considering the interim goals to 
be included in the Interim Goals Agreement, the Secretary of the Army, 
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, the 
Department of Interior, or the South Florida Water Management District. 
The Secretary of the Army shall provide a notice of availability of the 
proposed agreement to the public in the Federal Register and seek 
public comments. After considering comments of the public on the 
proposed agreement, and incorporating any suggestions that are 
appropriate and consistent with the goals and purposes of the Plan, the 
Secretary of the Army, the Secretary of the Interior, and the Governor, 
shall execute the final agreement, and the Secretary of the Army shall 
provide a notice of availability to the public in the Federal Register 
by no later than December 13 2004.
    (2) In developing its recommendations for interim goals, RECOVER 
shall use the principles in paragraph (c) of this section.
    (3) The Secretary of the Army, the Secretary of the Interior, and 
the Governor shall review the Interim Goals Agreement at a minimum of 
every five years after the date of the Interim Goals Agreement, to 
determine if the interim goals should be revised. Thereafter, the 
Secretary of the Army, the Secretary of the Interior, and the Governor 
shall revise the interim goals and execute a new agreement as 
appropriate. However, the Secretary of the Army, the Secretary of the 
Interior, and the Governor may review and revise the interim goals 
whenever appropriate as new information becomes available. Any 
revisions to the interim goals shall be consistent with the process 
established in this section.


Sec.  385.39  Evaluating progress towards 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 (c) of this section, the Secretary 
of the Army and the Governor shall establish interim targets for 
evaluating progress towards other water-related needs of the region 
provided for in the Plan throughout the implementation process. The 
interim targets and interim goals shall be consistent with each other.
    (3) The Department of the Army shall include these interim targets 
in appropriate Corps of Engineers guidance.
    (4) To ensure flexibility in implementing the Plan over the next 
several decades, and to ensure that interim targets may reflect changed 
circumstances or new information resulting from adaptive management, 
the interim targets 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 and 
technical information, new or updated modeling; information developed 
through the assessment principles contained in the Plan; and future 
authorized changes to the Plan integrated into the implementation of 
the Plan.
    (5) The Corps of Engineers and the South Florida Water Management 
District shall sequence and schedule projects as appropriate to achieve 
the interim goals and interim targets for other water-related needs of 
the region provided for in the Plan, to the extent practical given 
funding, technical, or other constraints.
    (6) If the interim targets have not been met or are unlikely to be 
met, then the Corps of Engineers and the South Florida Water Management 
District shall determine why the interim targets have not been met or 
are unlikely to be met and either:
    (i) Initiate adaptive management actions pursuant to Sec.  
385.31(d) to achieve the interim targets as soon as practicable, 
consistent with the purposes of the Plan and consistent with the 
interim goals established pursuant to Sec.  385.38; or
    (ii) Recommend changes to the interim targets in accordance with 
paragraph (a)(4) of this section.
    (b) Principles for developing interim targets. (1) RECOVER, using 
best available science and information, shall recommend a set of 
interim targets for evaluating progress towards other water-related 
needs of the region provided for in the Plan. These interim 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 that begin in 2005, with the targets reflecting the results 
expected to be achieved by 2010 and for each five-year increment 
thereafter. The interim targets shall be developed through the use of 
appropriate models and tools and shall provide a quantitative basis for 
evaluating progress towards other water-related needs of the region 
provided for in the Plan during the period of implementation. In 
developing the interim targets for the five-year increments, RECOVER 
shall use the Master Implementation Sequencing Plan as the basis for 
predicting the performance at a given time. RECOVER may recommend 
additional interim targets for implementation of CERP in addition to 
those initially developed and may propose revisions to the initial set 
of interim targets as new information is gained through adaptive 
management.
    (2) In developing its recommendations for interim targets, RECOVER 
shall consider indicators including, 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; 
and
    (iv) The frequency of water shortage restrictions on lands covered 
under the Water Rights Compact Among the Seminole Tribe of Florida, the 
State of Florida, and the South Florida Water Management District at 
each time increment.
    (c) Process for establishing interim targets. (1) The 
recommendations of RECOVER shall be provided to the Corps of Engineers 
and the South Florida Water Management District. These recommendations 
shall be provided no later than June 14, 2004. The proposed interim 
targets shall be developed by the Secretary of the Army and the 
Governor, in consultation with the Department of the Interior, the 
Environmental Protection Agency, the Department of Commerce, the 
Miccosukee Tribe of Indians of Florida,

[[Page 64245]]

the Seminole Tribe of Florida, the Florida Department of Environmental 
Protection, and other Federal, State, and local agencies, and the South 
Florida Ecosystem Restoration Task Force. In considering the interim 
targets, the Secretary of the Army 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. The Secretary of the Army 
shall provide a notice of availability of the proposed interim targets 
to the public in the Federal Register and seek public comments. After 
considering comments of the public on the proposed interim targets, and 
incorporating any suggestions that are appropriate and consistent with 
the goals and purposes of the Plan, the Secretary of the Army and the 
Governor, shall establish the final interim targets, and the Secretary 
of the Army shall provide a notice of availability to the public in the 
Federal Register by no later than December 13, 2004, but not prior to 
the execution of the Interim Goals Agreement pursuant to Sec.  385.38. 
Interim targets are intended to facilitate inter-agency planning, 
monitoring, and assessment throughout the implementation process and 
are not standards or schedules enforceable in court.
    (2) In developing its recommendations for interim targets, RECOVER 
shall use the principles in paragraph (b) of this section.
    (3) The Secretary of the Army and the Governor shall review the 
interim targets at a minimum every five years beginning five years 
after the establishment of the interim targets to determine if they 
should be revised and to determine what those revisions should be. The 
public shall also be provided with an opportunity to comment on the 
proposed revisions. The Secretary of the Army and the Governor may also 
revise the interim targets whenever appropriate as new information 
becomes available. Any revisions to the interim targets shall be 
established consistent with the process described in this section.


Sec.  385.40  Reports to Congress.

    (a) Beginning on October 1, 2005 and periodically thereafter until 
October 1, 2036, the Secretary of the Army 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 five 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 five-year period and updated estimates of total cost of the 
Plan 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 for assessing progress towards achieving the benefits 
to the natural system;
    (3) Progress towards interim targets for other water-related needs 
of the region provided for in the Plan established pursuant Sec.  
385.39 for assessing progress towards achieving the benefits to the 
human environment; 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) The discussion on interim targets in the periodic reports shall 
include:
    (1) A discussion of the expected and actual performance of the Plan 
in achieving interim targets since the last periodic Report to 
Congress, including the reasons for any deviations from expected 
performance; and
    (2) A discussion of the interim targets expected to be achieved 
during the next five years, including specific activities to achieve 
them and any recommendations for improving performance.
    (g) 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.
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Appendix A to Part 385--Illustrations to Part 385
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[The following concurrency statements are an appendix to this 
Federal Register document and will not appear in the Code of Federal 
Regulations.]

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[FR Doc. 03-27968 Filed 11-10-03; 8:45 am]
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