TO WHOM IT MAY CONCERN: The Jacksonville District, U.S. Army Corps of Engineers is considering accepting funds from the St. Johns River Water Management District (SJRWMD) to expedite the evaluation of the SJRWMD’s applications for modifications of Federal projects in accordance with Section 14 of the Rivers and Harbors Act (33 U.S.C. §408), subject to a series of limitations specified below.
AUTHORITY: Section 214 of the Water Resources Development of Act of 2000 (WRDA 2000, Public Law 106-541) as amended in 33 U.S.C. 2352, provides:
(a) PERMIT PROCESSING. The Secretary [of the Army], after public notice, may accept and expend funds contributed by a non-Federal public entity or a public-utility company, natural gas company, or railroad carrier to expedite the evaluation of a permit of that entity, company, or carrier related to a project or activity for a public purpose under the jurisdiction of the Department of the Army.
(b) EFFECT ON PERMITTING. In carrying out this section, the
Secretary shall ensure that the use of funds accepted under subsection (a) will not impact impartial decision making with respect to permits, either substantively or procedurally.
Section 14 of the Rivers and Harbors Act, 33 USC § 408, TAKING POSSESSION OF, USE OF, OR INJURY TO HARBOR OR RIVER IMPROVEMENTS provides:
It shall not be lawful for any person or persons to take possession of or make use of for any purpose, or build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, or any piece of plant, floating or otherwise, used in the construction of such work under the control of the United States, in whole or in part, for the preservation and improvement of any of its navigable waters or to prevent floods, or as boundary marks, tide gauges, surveying stations, buoys, or other established marks, nor remove for ballast or other purposes any stone or other material composing such works: Provided, That the Secretary of the Army may, on the recommendation of the Chief of Engineers, grant permission for the temporary occupation or use of any of the aforementioned public works when in his judgment such occupation or use will not be injurious to the public interest: Provided further, That the Secretary may, on the recommendation of the Chief of Engineers, grant permission for the alteration or permanent occupation or use of any of the aforementioned public works when in the judgment of the Secretary such occupation or use will not be injurious to the public interest and will not impair the usefulness of such work.
The Secretary of the Army has delegated this responsibility to the Chief of Engineers and his authorized representatives, including the Commander of the Jacksonville District, U.S. Army Corps of Engineers.
NON-FEDERAL PUBLIC ENTITY PROVIDING FUNDS: Non-Federal public entities are defined in Corps of Engineers guidance for implementing Section 214, as state and local governmental agencies and Indian tribal governments. They include, but are not limited to, local transportation agencies, port authorities, flood and storm water management agencies, and governmental economic development agencies. The St. Johns River Water Management District is a public entity of the State of Florida consistent with this definition.
HOW ACCEPTANCE OF FUNDS WOULD EXPEDITE THE PERMIT REVIEW PROCESS: Section 408 reviews may be federally funded through the Corps’ Operation and Maintenance Inspection of Completed Works (ICW) program and authorized project budgets if there is an ongoing funded project activity directly related to the 408 proposal. However, these funds are limited. The Jacksonville District does not have sufficient ICW funding in FY17 and FY18 to fully fund for the Section 408 reviews associated with the SJRWMD Taylor Creek L-73 Enhancement and C-10 Retention Area Projects. Additional funds may be received by the Jacksonville District from the SJRWMD in accordance with the provisions of Section 214 of WRDA 2000 as cited above. The Jacksonville District would establish a separate account to track receipt and expenditure of the funds in the Corps of Engineers Financial Management System. With the supplemental funding, the Jacksonville District would pay for technical support services. Corps personnel would charge their time against a specific account when working on those Section 408 permit applications that the SJRWMD has deemed a priority.
WHAT ACTIVITIES THE FUNDS WOULD BE EXPENDED ON: Funds would be expended primarily on the labor and overhead of Corps’ Civil Works personnel evaluating priority permit applications designated by the SJRWMD. Such permit processing activities would include, but not be limited to, the following: technical/engineering analyses, real estate evaluation, risk analysis, coordination activities, technical contracting, environmental evaluations, documentation preparation and review, site visits, and travel. Funds will not be used for drafting, negotiating, or issuing any necessary real estate instruments.
PROCEDURES TO ENSURE THAT THE FUNDS WOULD NOT IMPACT IMPARTIAL DECISION-MAKING: Depending on the magnitude of the impacts of the proposed modifications on the Federally authorized project, approval of the SJRWMD’s Section 408 permit applications may be granted by the Secretary of the Army to the Chief of Engineers, or further delegated to the District Commander. To ensure funds will not impact impartial decision-making, the following procedures would apply:
a. No funds received from SJRWMD under this agreement will be used by Corps management, specifically the District Commander, in making a final district level determination on the Section 408 permits included in this agreement. The funds will only be used by Corps staff for technical and policy to develop a recommendation to Corps management.
b. All final permit decisions for cases where Section 214 funds are used will be made available on the Jacksonville District web page.
c. The Corps will not eliminate any procedure or decisions that would otherwise be required for that type of project and permit application under consideration.
d. The Corps will comply with all applicable laws and regulations.
e. Section 214 funds will only be expended to provide priority review of the SJRWMD’s permit applications.
IMPACTS ON JACKSONVILLE DISTRICT’S CIVIL WORKS PROGRAM: Review of the SJRWMD’s proposed projects will not adversely affect the Jacksonville District’s Civil Works Program. Sufficient engineering and other technical resources exist within the District to accomplish the proposed reviews without impacting other Civil Works projects or programs.
CONSIDERATION OF COMMENTS: The Corps is soliciting comments from the public; Federal, state, and local agencies; Native American Tribes and other interested parties. Comments will be made part of the record and will be considered in determining whether it would be in the public interest to proceed with this action. If the Jacksonville District Commander determines after considering public comments, that the acceptance and expenditure of the funds is in compliance with Section 214 of WRDA 2000 and is not otherwise contrary to the general public interest, the Jacksonville District will sign a Memorandum of Agreement (“MOA”) prior to accepting the funds from the SJRWMD. A final public notice will be issued regarding the District Commander’s decision.
Provided that the purpose for accepting funds remains the same as that described in this notice, a new public notice will be posted in the event that the MOA is executed and then amended to extend the term of the agreement; to modify the list of priority projects identified in the MOA; or to adjust the terms of the annual advance payment contemplated under the MOA.
CONSIDERATION OF COMMENTS: Comments on implementing Section 214 of WRDA 2000 will be accepted and made part of the record, and will be considered in determining whether it would be in the best interest of the public to proceed with this administrative practice. Interested parties may submit, in writing, any comments concerning this proposal. Comments should refer to “Proposed Acceptance of Funds from the SJRWMD for Section 408 Permits” and be forwarded within 30 days from the date of this notice. Comments should be sent to:
U.S. Army Corps of Engineers
Plan Formulation Branch
ATTN: Liz Fiocchi
PO Box 4970
Jacksonville, FL 32232
Or e-mailed to: Elizabeth.C.Fiocchi@usace.army.mil
For additional information you may contact Liz Fiocchi by telephone at 904-232-1435.