This Special Public Notice announces that the U.S. Army Corps of Engineers (Corps), Jacksonville District Regulatory Division is considering a proposal to accept and expend funds provided by the South Florida Water Management District (SFWMD) to expedite processing of the SFWMD’s Department of the Army (DA) permit applications, subject to a series of limitations in accordance with Section 214 of the Water Resources Development Act of 2000 (WRDA 2000), as amended.
Section 214 of the WRDA 2000 (WRDA 2000, Public Law No. 106-541), as amended and codified at 33 U.S.C. 2352, authorizes the Secretary of the Army, after public notice, to accept and expend funds contributed by non-Federal public entities, public-utility companies, natural gas companies, or railroad carriers to dedicate a resource who’s primary focus would be to manage the workload of the funding entity, company, or carrier related to a project or activity for a public purpose under the jurisdiction of the DA. The authority to accept and expend funds under Section 214 has been delegated from the Secretary of the Army to District and Division Commanders, including the Commander of the Jacksonville District, Corps.
The SFWMD is eligible to provide funds to the Corps under Section 214 as a non-Federal public entity.
Definition of non-Federal public entities: Non-Federal public entities include state and local governmental agencies or government public authorities, as well as federally-recognized Tribes. Examples of non-Federal public entities include, but are not limited to, local transportation agencies, port authorities, and flood and storm water management agencies. One or more non-Federal public entities may enter into a Section 214 funding agreement with the Corps.
Purpose for the proposed funding agreement: The Corps’ Regulatory Program is funded as a Congressionally-appropriated line item in the annual Federal budget. The Jacksonville District is unable to expedite the evaluation of the SFWMD’s DA permit applications under Section 404 Clean Water Act, Section 10 Rivers and Harbors Act of 1899, Section 103 of the Marine Protection Research and Sanctuaries Act using current resources. Funds received from the SFWMD would be used by the District to dedicate a resource who’s primary focus would be to manage the Regulatory workload of the funding entity in accordance with the provisions of Section 214 of WRDA 2000, as amended. The Jacksonville District, Regulatory Division would establish a separate account to track receipt and expenditure of the funds to ensure they would be expended for the intended purpose. District employees would charge their time against the established account when processing SFWMD’s priority permit applications and conducting other related activities as specified below (see “Activities for Which Funds Would be Expended”).
Activities for which funds would be expended: Funds would be expended primarily on the labor and overhead of Jacksonville District personnel processing SFWMD permit applications. Such permit application processing activities would include, but not be limited to, the following: pre-application meetings, application reviews, jurisdictional determinations (JDs), site visits, preparation of public notices, preparation of correspondence, meetings, coordination activities, threatened and endangered species reviews, cultural resource reviews, public interest review, distribution of public notices, analysis of alternatives, compensatory mitigation proposal reviews, preparation of environmental assessments or environmental impact statements, preparation of permit decision documents, compliance inspections, training, travel, outreach, the development of programmatic tools, the review of mitigation bank instruments, and participation in early project planning or coordination activities. Funds may also be expended to pay for support services to perform select duties, such as technical writing or review of specific technical or legal documents (e.g. biological assessments for threatened and endangered species or contracts to develop NEPA documents).
If the funds accepted by the District under a funding agreement are fully expended and are not renewed, any remaining tasks necessary to complete processing of the SFWMD’s permit applications would be handled like those of any other non-participant, subject to the availability of funds.
How funds are expected to expedite permit review process:
Since the purpose of Section 214 is to expedite the permit review process, a Section 214 funding agreement is an ideal vehicle to improve the permitting process for SFWMD projects that require a Corps authorization. The SFWMD provides funds for certain DA projects. The Corps and the SFWMD believe that a dedicated Corps project manager would be able to develop expertise in the types of projects performed by the SFWMD, which could improve the efficiency of the review process. Further, based on experience and the volume of expected SFWMD permit applications going forward, the Corps expects that using funds accepted from SFWMD to fund a full-time Corps project manager for SFWMD permit applications would result in expedited reviews for SFWMD projects. A Section 214 funding agreement would also improve the ability of the Corps and SFWMD to coordinate and prioritize the review of projects based on SFWMD project schedules and deadlines. In addition, hiring a full-time Corps project manager for SFWMD permit applications would also benefit the reviews of non-SFWMD permit applications since existing Corps project managers that would otherwise be working on SFWMD applications would have additional time to work on applications for other applicants.
Procedures to ensure impartial decision-making: To ensure the funds would not impact impartial decision-making, the District would incorporate the following procedures into the funding agreement:
(a) All final permit decisions where funds were used for the permit review process would be reviewed and approved in writing by a Corps official that is at least one level above the typical Corps decision-maker. Funds accepted under the agreement would not be expended for review of such decisions by supervisors or other Corps officials in the decision-making chain of command. Additionally, the one-level-above reviewer would hold a position that is not partially or fully funded by SFWMD for at least one year.
(b) Instruments for mitigation banks or in-lieu fee programs proposed for review by the funding entity would be signed by the Jacksonville District Regulatory Division Chief, an equivalent, or a higher level position that is not funded by any funding agreement.
(c) All preliminary JDs and approved JDs where funds would be used to complete the JD would have documentation in the administrative record that a non-funded Corps District Regulatory Program staff member conducted a review of the determination. This review would not require a field review. For those approved JDs that require coordination with the U.S. Environmental Protection Agency, additional internal review would not be required.
(d) The Corps would not use funds accepted under this agreement to conduct enforcement activities; this includes, but is not limited to, the resolution of non-compliance issues.
(e) The Corps would comply with all applicable laws and regulations, and would not eliminate any procedures or decisions that would otherwise be required for the type of project and permit application under consideration.
(f) To ensure transparency, the Corps would ensure the funding agreement and all final permit decisions carried out using funds accepted from the SFWMD would be made available to the public on the Corps Headquarters’ public web pages at: https://permits.ops.usace.army.mil/orm-public# and https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Section-214/.
Impacts to the Regulatory Program: We expect that this funding agreement would have a net positive impact on the Corps Regulatory Program’s evaluation of other applicants’ permit applications. The Corps would use the funds to hire a full-time Corps project manager to process SFWMD’s DA permit applications. This would allow existing Corps staff that would otherwise review SFWMD applications to focus on the review of permit applications from other applicants in the District. Further, since permit process improvements that result from the funding agreement could potentially be applied to other permit applications, the Corps anticipates that this funding agreement could also result in additional permit process improvements for other applicants in the District.
Consideration of Comments: The Corps is soliciting comments on the proposal to accept and expend funds from the SFWMD from the public, Federal, State and local agencies and officials, and other interested parties. Comments will be made part of the Jacksonville District’s administrative record, and will be considered in the District’s decision of whether to enter into the proposed funding agreement. After considering public comments, if the Commander determines that the acceptance and expenditure of the funds would be beneficial and in compliance with the requirements of Section 214 of WRDA 2000, as amended, that the District would be able to preserve impartial decision-making, and that the timeframes of permit application reviews for other applicants in the District would not be adversely affected, then the Corps may execute a Memorandum of Agreement (MOA) with the SFWMD pursuant to Section 214 and accept funds from the SFWMD to expedite the review of their priority permit applications. A second informational public notice will be issued regarding the District Commander’s final decision on this matter. If a MOA is executed and later amended or extended, no new public notice would be issued, provided that the purpose of accepting funds remains the same as that described in this notice.
Submission of Comments: Interested parties may submit, in writing, any comments concerning this proposal. Comments should refer to SAJ-2023-00711 and be submitted by the comment due date of April 10, 2023. Comments must be sent to the U.S. Army Corps of Engineers, Jacksonville District, Regulatory Division, ATTN: Alisa Zarbo by email at Alisa.A.Zarbo@usace.army.mil, by cell phone at 561-308-4531, or by mailing address at 4400 PGA Boulevard, Suite 500, Palm Beach Gardens, Florida 33410.