FAQs - Proposed Rule

Programmatic Regulations
Frequently Asked Questions - Proposed Rule
14 Jul 2002

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1. Q. What are Programmatic Regulations?
As required by the Water Resources Development Act of 2000, which was enacted on December 11, 2000, programmatic regulations are to be promulgated by the Secretary of the Army to ensure that the goals and purposes of the Comprehensive Everglades Restoration Plan (CERP) are achieved. Section 601(h) of the Act states that the overarching purpose of CERP 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. The Water Resources Development Act of 2000 directs that the Plan be implemented to achieve and maintain the benefits to the natural system and human environment described in the Plan.

The Act requires that the programmatic regulations be developed within two years of the date of enactment; after notice and opportunity for public comment; with the concurrence of the Governor and the Secretary of the Interior; and in consultation with the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Administrator of the Environmental Protection Agency, the Secretary of Commerce, and other Federal, State, and local agencies. The Army Corps of Engineers is leading the development of the programmatic regulations.

2. Q: What is the purpose of the Programmatic Regulations?
The Everglades Programmatic Regulations set a procedural framework to guide the implementation of the $8 billion Comprehensive Everglades Restoration Plan (CERP). The purpose of this joint Federal-State effort 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.

3. Q: How will the Programmatic Regulations ensure that the goals and purposes of the CERP are achieved?
The proposed regulations include numerous provisions designed to ensure that the goals and purposes of the CERP are achieved. Key among these are:

a process for establishing, with broad stakeholder input, interim goals that will provide hydrological, water quality, and ecological targets against which restoration progress can be measured;
a process for establishing, with broad stakeholder input, targets for assessing progress towards meeting other water related needs of the region;
a process for developing, with concurrence by the Secretary of the Interior and the Governor of Florida, procedures to guide the detailed planning and implementation of CERP projects, including establishment of a water baseline that will identify existing legal sources of water that must be protected, consistent with authorizing legislation;
the establishment of an interagency RECOVER (Restoration, Coordination and Verification) team to assess, evaluate, and integrate the projects of the CERP 2 with the overall goal of ensuring that the system-wide goals and purposes of the CERP are achieved;
the establishment of an Adaptive Management Program to assess responses of the natural system to implementation of the CERP, determine whether or not these responses match expectations, identify and implement any needed modifications to the CERP, and seek continuous improvement of the CERP based on new scientific and technical information;
the establishment of an independent scientific review panel under the auspices of the National Academy of Sciences or a similar body to review and report on the CERP’s progress in meeting its restoration goals; and
an emphasis on coordination, consultation and consensus building with all affected agencies and stakeholders throughout the planning and implementation process, including the US Dept of the Interior, the Miccosukee and Seminole Indian Tribes, the Florida Dept of Environmental Protection, the US Environmental Protection Agency, the US Dept of Commerce, the Florida Fish and Wildlife Conservation Commission, the South Florida Ecosystem Restoration Task Force, local governments, environmental groups, agricultural interests, water utilities, and other members of the public.

4. Q. Where can I get a copy of the proposed rule?
The proposed rule is available on the Comprehensive Everglades Restoration Plan web site at:
www.evergladesplan.org/pm/progr_regs_proposed_rule.aspx.

5. Q. Will there be opportunities for public comment in developing the regulations?
Yes. The development of the programmatic regulations will continue to be done in an open, inclusive way. Numerous opportunities for stakeholders and the public have been provided and will continue to be provided as part of the development process. The 60-day public comment period on the proposed rule provides an opportunity for the public to provide comments. In addition, the public will continue to have opportunities to provide comments at the meetings of the South Florida Water Management District Governing Board, the Water Resources Advisory Commission and the South Florida Ecosystem Restoration Task Force and Working Group.

6. Q. How can I comment on the proposed rule?
There are two ways to submit comments on the proposed rule:

You may submit written comments to U.S. Army Corps of Engineers, ATTN: CESAJ-DR-R, P.O. Box 4970, Jacksonville, FL 32232-0019.
You may send comments by electronic mail (e-mail) to: proregs@usace.army.mil. If submitting comments by electronic format, please submit them in ASCII file format or Word file format and avoid the use of special characters and any form of encryption. Please include your name and return email address in your e-mail message.

7. Q. What happens next?
The Corps of Engineers plans to hold public meetings on the proposed rule. Notice of the public meetings will be published in the Federal Register and will also be on the Comprehensive Everglades Restoration Plan web site at www.evergladesplan.org. Comments that are received on the proposed rule will help the Corps of Engineers prepare the final rule.

8. Q. Who’s involved in developing the Programmatic Regulations?
The Secretary of the Army is responsible for promulgating the programmatic regulations by December 11, 2002. Other Federal, State, and local agencies, the Miccosukee and Seminole Tribes, stakeholders, and the public are extensively involved in the process. The South Florida Water Management District Governing Board and its Water Resources Advisory Commission are also involved, as are the South Florida Ecosystem Restoration Task Force and its Working Group.

9. Q. What are the concurrence requirements for the Programmatic Regulations?
The Water Resources Development Act of 2000 specifies that the Secretary of the Army promulgate the programmatic regulations with the concurrence of the Governor of Florida and the Secretary of the Interior. Specifically the Governor and Secretary of the Interior are required to provide a written statement of concurrence or nonconcurrence no later than 180 days after the end of the public comment period on the draft regulations. A copy of the concurrency or nonconcurrency statement will be made a part of the administrative record and referenced in the final programmatic regulations.

10. Q: What is the role of the Department of the Interior in CERP planning and implementation?
The proposed regulations recognize the unique expertise and experience of the Department of the Interior resulting from its role as steward of the Everglades National Park, the nation’s fish and wildlife resources, and the Federal government’s trust responsibilities with respect to Indian Tribes. The proposed regulations thus provide a strong role for the Department in every aspect of CERP planning and implementation. Specifically, concurrence by the Department is required on the detailed planning and implementation guidance memorandum and the establishment of the pre-CERP water baseline (as well as on the regulations themselves, as provided for by statute), the interim goals will be established by a formal agreement between the Department, the Corps of Engineers, and the Governor of Florida, the Department will sit on the Leadership Group of RECOVER, the Department, the Corps and the State will together establish the independent scientific review panel, and consultation with the Department is required in all other aspects of planning and implementation.

11. Q: What is the structure and function of RECOVER?
RECOVER will be managed and coordinated by two program managers, appointed by the Corps and Engineers and the South Florida Water Management District, with the assistance of a Leadership Group that will include the Dept of the Interior, Miccosukee and Seminole Indian Tribes, Environmental Protection Agency, and 4 Florida Dept of Environmental Protection, as well as other Federal, State, and local agencies as appropriate. Recover will provide scientific and technical advice and recommendations on all aspects of project development, implementation and evaluation. It is also specifically charged with developing recommendations for both interim goals and targets for assessing progress towards achieving other water related needs of the region by June 30, 2003.

12. Q: How is the authority of the State of Florida over reservation and allocation of water resources within its boundaries recognized in the proposed regulations ?
The proposed regulations state that reservations or allocations of water are a State responsibility, and include a requirement that before construction of a project can begin, the State and the Corps of Engineers must enter into a Project Cooperation Agreement which includes a finding by the Corps that the appropriate reservation of water for the natural system has been executed under State law. Any subsequent revisions to that reservation require an amendment to the Agreement.

13. Q: Will the regulations ensure protection of existing sources of water and levels of flood protection?
The regulations require that each project be analyzed to determine if the project will cause the elimination or transfer of an existing legal source of water, and if it will, require an implementation plan to ensure that the elimination or transfer does not occur until a new source of water of comparable quantity and quality is available. They also require a demonstration that existing levels of flood protection will not be reduced.

14. Q: What is the process for establishing interim goals and ensuring that they are achieved?
The regulations provide a process for establishing interim goals in three categories, hydrological (e.g., quantity and timing of water deliveries to the natural system), water quality (e.g., nutrient levels in the water) and ecological (e.g., habitat restoration, species recovery). RECOVER will provide recommendations for interim goals by June 30, 2003, and an initial set of goals will be established through an Interim Goals Agreement between the Corps, the Department of the Interior, and the State of Florida by December 31, 2003. The goals will consist of quantitative targets to be achieved in five-year intervals, beginning in 2005. If a goal is not achieved on schedule then the Corps and the State must document why not, develop an action plan for achieving it as soon as practicable, and implement the plan. The regulations also provide a process for reviewing the interim goals and revising them as appropriate, at least every five years. Interim goals are not included in the regulations because: 1) there is not time to perform the detailed scientific and technical analyses needed to support meaningful goals in the limited time frame provided under the Statute for promulgation of the regulations, and 2) the important process of on-going evaluation and adaptive management would be inhibited if a new rule making was required every time a revision was needed.

15. Q. What content is required in the Programmatic Regulations?
The Water Resources Development Act of 2000 requires that the content of the programmatic regulations establish a process:

for the development of Project Implementation Reports, Project Cooperation Agreements, and operating manuals to ensure that the goals and objectives of CERP are achieved;
to ensure that new scientific, technical, or other information such as that developed through adaptive assessment is integrated into the implementation of CERP ; and
to ensure that the protection of the natural system, including the establishment of interim goals to provide a means by which the restoration success of CERP may be evaluated throughout the implementation process.

16. Q. What is a proposed rule?
The programmatic regulations are being developed in accordance with the provisions of the Administrative Procedures Act, which governs how Federal rulemaking is accomplished. Accordingly, the Corps of Engineers developed draft programmatic regulations that will be published in the Federal Register as a proposed rule. A 60-day public comment period will begin when the draft regulations appear in the Federal Register. Following analysis of the comments received on the proposed rule, the Corps of Engineers will develop the final programmatic regulations and publish them as a final rule in the Federal Register.

17. Q. How was the proposed rule developed?
The Corps of Engineers developed the proposed rule based on information and suggestions we received from agencies, the tribes, stakeholders, and the public at numerous meetings we held with these interests over the past six months. The South Florida Water Management District’s Water Resources Advisory Commission and the South Florida Ecosystem Restoration Working Group were also extensively involved in providing information and suggestions to the Corps of Engineers. In December 2001, the Corps of Engineers published an initial draft of the programmatic regulations. The initial draft was a “first cut” of the regulation and was circulated to agencies, the Miccosukee and Seminole tribes, stakeholders, and the public and was intended to provide a starting point for further discussions that helped the Corps of Engineers prepare the proposed rule. As required by Executive Order 12866, as amended, a draft of the proposed rule was submitted to the Office of Management and Budget on April 17, 2002 for review.

Dated: July 24, 2002

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