Programmatic Regulations
Questions and Answers

Q: What are Programmatic Regulations?

A: As required by the Water Resources Development Act of 2000 (WRDA 2000), programmatic regulations are required 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. The programmatic regulations set the procedural framework to guide implementation of CERP.

Q: Why are the Programmatic Regulations important?

A: The Programmatic Regulations are required as part of the Assurances section of WRDA 2000. The regulations will establish the process for developing various project design documents and operating manuals to ensure the goals of the plan are achieved; to ensure that new information is incorporated into the implementation of the plan; and to ensure the protection of the natural system.

Q: How are assurances required by WRDA 2000 addressed in the Programmatic Regulations?

A: Along with the binding assurances agreement between the President of the United States and the Governor of Florida, the programmatic regulations lay a strong foundation to ensure achievement of the environmental benefits of the $8 billion CERP Plan. Additional checks and balances, required by WRDA 2000, have also been placed in the programmatic regulations. They include development of a pre-CERP baseline and appropriate federal involvement to ensure that state reservations of water are sufficient to meet the federal statutory requirement for the restoration of the natural system.

The programmatic regulations include six guidance memoranda (formerly protocols) that are related to common methods, general procedures and guidance of the Comprehensive Everglades Restoration Plan. These include: general format and content of the Project Implementation Reports (PIR); instructions for Project Delivery Team evaluation of alternatives developed for PIR=s, their cost effectiveness and impacts; instructions relevant to PIR=s for identifying if an elimination or transfer of existing legal sources of water will occur as a result of implementation of the Plan; general content of operating manuals, general directions for the conduct of the assessment activities of RECOVER; and instructions relevant to PIR=s for identifying the appropriate quantity, timing, and distribution of water dedicated and managed for the natural system. The regulations, through these guidance memoranda, attempt to safeguard the Federal interest and investment in restoration, preservation, and protection of the South Florida ecosystem, including Federal properties such as national parks and wildlife refuges. While it is recognized that more detailed guidance memoranda will be needed to assist the implementation of the Plan, these guidance memoranda will be developed subsequent to the initial promulgation of the regulations. It was decided not to include more technical guidance memoranda because they are intended to provide internal guidance to the implementing agencies, and are still being developed.

Q: What type of role does the Secretary of the Interior have?

A: The regulations provide a strong role for the Department in every aspect of CERP planning and implementation. Specifically, concurrence by the Department is required on the six detailed planning and implementation guidance memoranda and the establishment of the pre-CERP 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 Secretary of the Interior, the Secretary of the Army, and the Governor of Florida; the Department will be on the leadership team of RECOVER; the Department, the Corps and the South Florida Water Management District will together make recommendations on interim goals; and consultation with the Department is required in all other aspects of planning and implementation.

Q: Why do the regulations include a requirement to develop a pre-CERP base line?

A: WRDA 2000 includes a Savings Clause that is generally designed to protect legal sources of water and levels of flood protection that existed on the date of enactment of the law. The pre-CERP base line will specify the hydrology that will serve as the basis for enforcing the Savings Clause, as well as the benchmark for calculating project benefits.

Q: What type of role does the Interior have with respect to RECOVER?

A: Interior will continue to play an important role in RECOVER through its membership on the RECOVER leadership teams and it's current status as co-chair of three of the RECOVER sub-teams. As a result, Interior's technical expertise will be fully integrated into the RECOVER teams. In addition, Interior will also have a full consultation role on documents, reports, recommendations, performance measures and other RECOVER responsibilities.

Q: If the Department of the Interior is not an official co-partner in RECOVER, how will the Secretary ensure that Interior's science drives the decision-making verses the other competing interests?

A: The Department of the Interior plays a substantial and strong leadership role in RECOVER now, and will continue to play such a key leadership role when the programmatic regulations have been implemented. Representatives of Interior agencies are on the leadership team and are or have been co-chairs of four of the six RECOVER sub-teams that have been established to date. These include the model development refinement team, operations planning team, adaptive assessment team, and regional evaluation team. The Department is also co-chair of the task team that is developing the first suite of interim goals.

Q: Do the Programmatic Regulations sufficiently protect the integrity of the scientific process?

A: Yes, we believe that new provisions in the Programmatic Regulations strengthen and protect scientific integrity. First, and pursuant to WRDA 2000, an independent scientific review panel will be established to review the Plan's progress toward achieving the natural system restoration goals. The regulations provide for independent scientific review whenever necessary to assist the agencies in project implementation. Secondly, RECOVER, will continue to assess, evaluate, and integrate the projects of the Plan with the overall goal of ensuring that the system-wide goals and purposes of the plan are achieved.

Q: How are interim restoration goals addressed?

A: The regulations establish a means by which the restoration success of the Plan may be evaluated by requiring joint development and adaptation through an agreement among Interior, the State of Florida and the Army. DOI serves as a co-chair of the RECOVER task-team, comprised of interagency scientists, that recently released a set of draft interim goals. The proposed process to develop the interim goals in the regulations will ensure that they are based on sound science and input through public notice and comment.

Q: Why do the regulations not contain specific interim goals?

A: The programmatic regulations do not include specific interim goals but rather provide a process by which the Department of the Interior, the Corps of Engineers and the State of Florida will jointly establish interim goals through a tri-party agreement. Specific interim goals were not included in the programmatic regulations because there was not sufficient time ensure the best available science was being used and that the appropriate goals were being developed. In fact, the RECOVER task-team, comprised of interagency scientists and co-chaired by the Department of the Interior, recently released a set of draft interim goals. These interim goals, which are still being revised, include both hydrologic measures and ecological responses. They address increased flows, responses to ecosystem habitat improvements and water quality improvements.

Q: What is the Role of the South Florida Ecosystem Task Force?

A: The Task Force is an important forum for inter-agency collaboration and will have a consultation role on several subjects. They include: interim goals; targets for other water related needs of the region as provided for in the Plan; certain assessment reports; Comprehensive Plan Modification Reports; Pilot Projects Technical Data Reports; and periodic reports to Congress by the Secretary of the Army and the Secretary of the Interior in consultation with EPA, Department of Commerce, and the State of Florida. The Task Force will also be able to comment on any element of the implementation of the Plan and become involved at any stage where they believe their expertise is needed. Additionally, it is expected that the informal coordination among the implementing agencies, the Task Force, and its working group and other advisory bodies will continue.

Q: How is the authority of the State of Florida over reservation and allocation of water resources within its boundaries recognized in the final regulations?

A: The regulations state that reservations or allocations of water are a state responsibility, and require 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 and verification that the revised reservation continues to provide for an appropriate quantity, timing, and distribution of water for the natural system.

Q: Will the regulations ensure protection of existing sources of water and levels of flood protection?

A: The regulations require that each project is analyzed to determine if the project will cause the elimination or transfer of an existing legal source of water, and if it will, the regulation requires 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. A demonstration that existing levels of flood protection will not be reduced is also required.