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DEPARTMENT OF THE ARMY EC 1165-2-220

US Army Corps of Engineers

CECW-ZB Washington, DC 20314-1000

Circular

No. 1165-2-220 10 September 2018

EXPIRES 30 SEPTEMBER 2020

Water Resource Policies and Authorities

POLICY AND PROCEDURAL GUIDANCE FOR PROCESSING REQUESTS

TO ALTER US ARMY CORPS OF ENGINEERS CIVIL WORKS PROJECTS

PURSUANT TO 33 USC 408

TABLE OF CONTENTS

Paragraph Page

1. Purpose ........................................................................................................................... 1

2. Applicability ................................................................................................................... 1

3. Distribution Statement..................................................................................................... 1

4. References ...................................................................................................................... 1

5. Authority......................................................................................................................... 1

6. Basic Definitions ............................................................................................................. 2

7. Program Governance ....................................................................................................... 3

8. Decision Authority .......................................................................................................... 8

9. Determining When Procedures in this EC Apply ........................................................... 10

10. Options for Seeking Section 408 Permission ................................................................. 14

11. Basic Requirements for a Complete Section 408 Request .............................................. 16

12. USACE Review Requirements ...................................................................................... 20

13. Overall Process ............................................................................................................. 24

14. Step 1: Completeness Determination ............................................................................. 25

15. Step 2: USACE Review and Decision .......................................................................... 26

16. Step 3: Final Decision Notification ............................................................................... 28

17. Step 4: Construction Oversight ..................................................................................... 28

18. Enforcement .................................................................................................................. 29

APPENDICES

Appendix A – References ....................................................................................................... A-1

Appendix B – 33 USC 408 ..................................................................................................... B-1

Appendix C – Categorical Permissions ................................................................................... C-1

Appendix D – Environmental and Cultural Resources Compliance ......................................... D-1

Appendix E – Dams and Levees ..............................................................................................E-1

Appendix F – Non-federal Hydropower Development at USACE Facilities ............................. F-1

Appendix G – Navigation Channels, Harbors, Locks, Jetties, Bridges, and Features ............... G-1

Appendix H – Hydrologic and Hydraulic System Analysis ..................................................... H-1

Appendix I – Funding Agreements ........................................................................................... I-1

Appendix J – Example Letters ................................................................................................. J-1

Appendix K – Standard Terms and Conditions........................................................................ K-1

Appendix L – Terms and Abbreviations ...................................................................................L-1

DEPARTMENT OF THE ARMY EC 1165-2-220

US Army Corps of Engineers

CECW-ZB Washington, DC 20314-1000

Circular

No. 1165-2-220 10 September 2018

EXPIRES 30 SEPTEMBER 2020

Water Resource Policies and Authorities

POLICY AND PROCEDURAL GUIDANCE FOR PROCESSING REQUESTS

TO ALTER US ARMY CORPS OF ENGINEERS CIVIL WORKS PROJECTS

PURSUANT TO 33 USC 408

1. Purpose. The purpose of this Engineer Circular (EC) is to provide policy and procedural

guidance for processing requests by private, public, tribal, or other federal entities to make

alterations to, or temporarily or permanently occupy or use, any US Army Corps of Engineers

(USACE) federally authorized Civil Works project under 33 USC 408 (Section 408). Proposed

alterations must not be injurious to the public interest or impair the usefulness of the USACE

project.

a. This EC contains guidance applicable to all types of USACE projects that can be tailored

to the appropriate level of detail for a specific Section 408 request. Supplemental guidance for

specific infrastructure types (i.e., dams, hydropower, levee systems, and navigation) and other

procedures can be found in the appendices.

b. This EC will serve as the most current comprehensive guidance for Section 408 reviews

until it is supplemented, replaced, or expires. This EC applies to requests for alterations received

by districts on or after the date of issuance. All requests submitted prior to the effective date of

this EC can be processed consistent with the previous policy or this EC, at the requester’s

discretion.

c. This EC contains guidance related to interaction between USACE Section 408 decisions

and other USACE processes, such as real estate decisions and permits under the USACE

Regulatory Program.

2. Applicability. This EC is applicable to all headquarters USACE elements, divisions,

districts, laboratories, and field operating activities related to USACE Civil Works projects.

3. Distribution Statement. Approved for public release; distribution is unlimited.

4. References. References for the main EC are in Appendix A. Other references are specified

in specific appendices as appropriate.

5. Authority. See Appendix B.

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6. Basic Definitions. For the purposes of this EC, the following terms are used:

a. “District” refers to a USACE district office and “division” refers to a USACE division

office.

b. “USACE project” refers to a USACE federally authorized Civil Works project, including

those operated and/or maintained by USACE and those operated and maintained by a non-

federal sponsor.

c. “Alteration” refers to any action by any entity other than USACE that builds upon, alters,

improves, moves, obstructs, or occupies an existing USACE project. Unless otherwise stated,

for ease of reference, the use of the term “alteration” in this document also includes “occupation”

and “use.”

d. “Requester” refers to an entity other than USACE that is requesting permission to alter a

USACE project. A request for Section 408 permission can originate from a non-federal sponsor

(see definition in next paragraph) or an independent requester.

e. “Non-federal sponsor” refers to a non-federal interest, as defined in the Flood Control

Act of 1970, as amended (42 USC 1962d-5b(b)), that has provided assurances or executed a

binding agreement for the provision of items of local cooperation for a USACE project,

including, as applicable, operation and maintenance.

f. “Regulatory Program” or “Regulatory” is the USACE program responsible for oversight

and implementation of permits under Section 10 of the Rivers and Harbors Act of 1899, Section

404 of the Clean Water Act, and Section 103 of the Marine Protection, Research, and Sanctuaries

Act of 1972 (Section 10/404/103).

g. “Shoreline use permit” refers to the written permission issued by USACE under Part 327

of Title 36 of the Code of Federal Regulations to authorize certain structures, facilities, and uses

in or adjacent to waters that are managed by USACE at Civil Works projects.

h. “Outgrant” refers to a real estate instrument which conveys or grants the right to use real

property and is usually in the form of a lease, license, or easement. A consent is not an outgrant.

i. “Consent” refers to a written agreement between the holder of an easement and the owner

of the underlying fee estate, that allows the owner of the underlying fee estate to use (or

authorize another to use) their land in a manner that the easement holder has determined will not

interfere with the easement holder’s rights. A consent does not grant an interest in real estate and

is not an outgrant.

j. “Real property” refers to any interest in land, including leaseholds, easements, and rights-

of-way, together with the improvements, structures, and fixtures located thereon.

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k. “Real property of the United States” refers to real property owned by the United States

that is under the administrative jurisdiction of USACE.

7. Program Governance. USACE will maintain a three-level decentralized organization to

implement this EC, comprising Headquarters USACE (HQUSACE), division, and district levels.

The Commanders at each level – HQUSACE, division, and district – have ultimate responsibility

for ensuring that Section 408 decisions comply with current policy and procedures. Each level is

required to establish and maintain personnel and procedures to implement this EC.

a. Program Oversight. HQUSACE will designate a HQUSACE proponent to oversee the

execution of this EC and monitor progress. Each fiscal year, HQUSACE will lead an audit. The

audit will be coordinated through appropriate Division and District Commanders and will result

in an audit report to be submitted to the Director of Civil Works. At a minimum, the audit report

will include a review of a sampling of district and division Section 408 decisions, an assessment

of the consistency of documentation of decisions and compliance with policy agency-wide, use

of streamlining processes (e.g., categorical exclusions, categorical permissions, and procedural

review plans), and lessons learned and corrective actions needed in order to improve the process

agency-wide. The audit will also evaluate the timeliness of decisions.

b. Section 408 Coordinator. Each District and Division Commander will designate a

Section 408 Coordinator with the appropriate professional expertise and experience to manage

and coordinate (both internally and externally to USACE) Section 408 activities. Section 408

Coordinators must have management and communication abilities and have knowledge and

experience with the Section 408 procedures. District Section 408 Coordinators will ensure

proper coordination occurs among all the necessary elements internally and externally, including

but not limited to regulatory, tribal liaisons, real estate, counsel, planning, engineering and

construction, programs and project management, and operations. Division Section 408

Coordinators will ensure proper coordination among other districts if the USACE project or

proposed alteration crosses more than one district’s area of responsibility, reference paragraph

7.h.(3), and consistency in implementation within the divisions’ areas of responsibility. In

addition, Section 408 Coordinators are responsible for data management in the Section 408

database, reference paragraph 7.d, and appropriate webpages, reference paragraph 7.e, to ensure

information and status of Section 408 requests are current. Section 408 Coordinators will ensure

budgetary information and resource needs to accomplish USACE Section 408 activities are

coordinated and submitted during the budgeting process.

c. Administrative Record. The district will be responsible for maintaining an administrative

record for each Section 408 request in their area of responsibility. The administrative record

should include all documents and materials directly or indirectly considered by the decision-

maker. It should include documents, materials, and a record of the offices and staff that are

pertinent to the merits of the decision, as well as those that are relevant to the decision-making

process. Record documents will be uploaded to the Section 408 database, reference paragraph

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7.d, as appropriate.

d. Section 408 Database. HQUSACE will establish and maintain a Section 408 database to

serve as the database system of record for all Section 408 requests. The database system will be

created in a manner to ensure information can be shared and synchronized with other USACE

database systems as appropriate. The database will adhere to standards established for the Civil

Works Business Intelligence (CWBI) and be managed under the CWBI Automated Information

System, which is part of the Civil Works information technology portfolio. Database entry and

quality control/quality assurance of entered data is the responsibility of districts and divisions. A

subset of fields from this database will be made publicly available to provide information on the

current status of Section 408 requests received.

e. Public Webpages. HQUSACE will establish and maintain a publicly available Section

408 webpage to provide basic information on Section 408, and viewable access to a subset of the

Section 408 database fields related to status of requests. Each USACE district, and division if

necessary, will ensure information on how a requester can submit a Section 408 request to the

district is available on district-specific public webpages. District webpages will include contact

information and a link to the HQUSACE Section 408 public webpage and database.

f. Funding for USACE Section 408 Responsibilities. USACE-led Section 408 activities

that require funding include those on a programmatic level (e.g., data management, program

management, coordination, generating categorical permissions, developing procedural review

plans, and creating funding agreements) and those activities related to processing Section 408

requests (e.g., reviewing requests, development of environmental and cultural resource final

documents, construction oversight, approving updates to Operation and Maintenance manuals

related to the alteration, and alteration-specific review plans).

(1) See guidance on funding for Section 408 in the current Civil Works Program

Development Guidance.

(2) Districts will ensure requesters are aware of the opportunity to use funding agreements to

expedite activities related to processing Section 408 requests, see paragraph 7.g.

(3) Enforcement activities, reference paragraph 18, associated with completed and in-place

Section 408 alterations or unapproved encroachments, will be funded from the appropriate

source associated with the inspection and oversight procedures for that specific USACE project.

(4) Regulatory Program funds can only be used for a Section 10/404/103 action, which may

include those actions with an associated Section 408 request. Regulatory staff can use

Regulatory funds to participate in joint meetings and internally coordinate portions of shared

documents when a Section 408 request also requires a Section 10/404/103 action.

g. Funding Agreements. The following are the three main authorities through which

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USACE may accept and expend funds to expedite the review and evaluation of a Section 408

request. Districts should choose the funding agreement option that is most appropriate to

provide the most efficiency. See Appendix I for detailed procedures.

(1) Section 1156(a)(2) of the Water Resources Development Act (WRDA) 2016 amended

Section 14 of the Rivers and Harbors Act of 1899 (33 USC 408) to authorize the acceptance and

expenditure of funds received from non-federal public or private entities to evaluate requests

under Section 408. This authority is the most flexible and streamlined authority for accepting

funding for Section 408 reviews.

(2) Funds may be accepted under the authority of Section 214 of WRDA 2000, as amended,

(33 USC 2352) to expedite the review and evaluation of a Section 408 request for a public

purpose. Funds may be accepted from non-federal public entities; public utility companies;

natural gas companies; or railroad carriers. This authority requires a public notice before receipt

of funds and has other limitations.

(3) Funds may be accepted under the authority of 23 USC 139(j) to expedite the review and

evaluation of a Section 408 request associated with a federal-aid transportation project. Funds

may be accepted from certain public entities that receive financial assistance from the U.S.

Department of Transportation (USDOT). This authority requires USDOT approval of the

agreement and has other restrictions and requirements. This authority may be more appropriate

for projects for which the Federal Highway Administration (FHWA) and/or Federal Transit

Administration (FTA) are the lead agency and the transportation project sponsor is seeking or

receiving financial assistance from USDOT for permitting.

(4) To accept funds from another federal agency, a specific statutory authority must be

identified that authorizes the transfer of funds for such a purpose.

h. Coordination.

(1) Effective communication and coordination, both internally and externally, is critical to

achieve efficient decision-making on Section 408 requests. Districts will ensure that internal and

external coordination is conducted as necessary to ensure timely and efficient reviews and

decision-making. In addition, districts will seek opportunities to integrate or align internal

procedures, leverage information between processes, and eliminate redundancy, while ensuring

appropriate laws and policies are being met. Early and frequent coordination between USACE,

the requester, and/or non-federal sponsor, if applicable, is strongly recommended. Coordination,

notification and subsequent tribal government-to-government consultation should occur at the

earliest stages and should be pre-decisional with interested federally recognized tribes, including

tribes whose aboriginal territories extend into the lands where the proposed activity may occur.

Coordination with tribes should happen prior to or concurrent with coordination with State

Historic Preservation Officers. The most effective way to determine whether an area has tribal

cultural, historic or spiritual significance is to work with representatives from each tribal nation

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that either resides or has ancestral ties to the area proposed for the Section 408 request.

Coordination will aid in early identification of potential issues and help to focus efforts, thereby

minimizing costs to the requester and USACE.

(2) Districts will provide a copy of this EC to non-federal sponsors of USACE projects. This

EC is not intended to replace existing coordination processes districts may have with non-federal

sponsors for efficient reviews of alterations to the USACE project. Districts are encouraged to

adapt existing coordination processes or develop new standard operating procedures to reflect

requirements in this EC and to support effective and efficient reviews.

(3) One lead district, and its’ associated division office, will be designated for any single

non-USACE project that crosses district or state boundaries (e.g., pipelines, highway projects,

electrical transmission projects) and requires either Section 10/404/103 review(s), Section 408

review(s), or a combination of both consistent with reference A.41. The lead district will be

responsible for maintaining situational awareness on the status of all Section 10/404/103 and

Section 408 reviews; serving as a primary point of contact for the requester; and coordinating

schedules and requirements to meet review and decision milestones.

(4) In cases in which a Section 408 permission (except for Section 408 decisions that must be

made by the Division Commander, per paragraph 8.c.) and a Regulatory standard individual

permit are both required for the same proposed alteration/activity, the district will conduct these

evaluations in a coordinated and concurrent manner resulting in a single decision document.

Although each mission area (between Section 408 and Regulatory) is responsible for the review

requirements specific to its respective authorities, the environmental compliance to cover both

the Section 408 permission and Regulatory permit decisions will be coordinated by a single

office. Consideration should be given to the scale and scope of the activities subject to each

authority when designating the lead office for environmental compliance. The district

Regulatory Chief and the Section 408 Coordinator will jointly decide which office will be the

lead for environmental compliance. If agreement cannot be reached, then the District

Commander will decide. The single decision document will contain documentation for the final

decisions for both the Section 408 permission and the Regulatory permit. Note that

implementing regulations and policies for the Regulatory permit require the evaluation of

proposed activities and their compatibility with the purposes of a federal project. The Section

408 analysis informs the compatibility with the purposes of a federal project for Regulatory

purposes. In addition, there will be a single transmittal letter to the requester that includes as

attachments both the Section 408 decision letter and the Regulatory permit. The District

Commander is the deciding official for the single decision document for these cases, although he

or she may further delegate these combined decisions following the same requirements as in

paragraph 8.d. As a result, in these cases, the Section 408 permission and Regulatory individual

permit will be reviewed and finalized at the same decision level and by the same deciding

official. See Appendix G for alternative procedures related to Section 10 and Section 408.

(5) In cases in which an alteration requiring a Section 408 permission and a Regulatory

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permit decision other than a standard individual permit, the district will conduct these

evaluations in a coordinated and concurrent manner to the maximum extent practicable. For

these cases, there will be a single transmittal letter to the requester that includes as attachments

both the Section 408 decision letter and the Regulatory permit. A single decision document,

single office lead for environmental compliance, or the same deciding official is not required.

However, the Section 408 decision must be finalized before or concurrent with, but not after, the

Regulatory decision. Implementing regulations and policies for the Regulatory decisions require

the evaluation of proposed activities and their compatibility with the purposes of a federal

project. The Section 408 decision informs the compatibility with the purposes of a federal

project for Regulatory purposes.

(6) In cases in which a proposed Section 408 alteration may affect the formulation,

evaluation, or selection of alternatives for a current Investigation or other USACE study, (for

example, when approval or denial of a proposed alteration would materially affect the

completeness, effectiveness, efficiency, and/or acceptability of one or more alternatives being

evaluated as part of a feasibility study), district staff reviewing the Section 408 request will

coordinate with the district study team to identify, track, and ensure vertical awareness of the

interdependencies between the Section 408 request and the USACE study. Study and

implementation risks associated with the decision (approval or denial) on the Section 408 request

will be managed and discussed with the vertical team through the study milestones.

(7) In cases in which a proposed Section 408 alteration changes how the USACE project will

meet its authorized purpose, district staff reviewing the Section 408 request will coordinate

vertically with the division to the appropriate Regional Integration Team (RIT) and Office of

Counsel to confirm that Section 408 is being appropriately applied. An example is a proposed

alteration to permanently breach a levee system for ecosystem restoration purposes and raise all

structures behind the levee to achieve the same flood risk management benefits. This USACE

project still meets the authorized flood risk management purpose but in a different manner.

(8) A proposed alteration may also be subject to other laws or requirements that involve

additional coordination, prioritization, and/or transparency (e.g., Title 41 of the Fixing America’s

Surface Transportation Act (FAST-41), Federal-aid highway and transit projects subject to 23

USC 139, priority projects under an existing Executive Order, etc.). Districts should be aware

of, and actively participate in, any additional coordination required for the Section 408 request,

including supporting development of schedules and updating any non-USACE databases (e.g.,

FAST-41 Coordinated Project Plans and Dashboard), if required. Districts should coordinate

vertically, through the division, to the appropriate Regional Integration Team (RIT), if upward

reporting on status is required for these Section 408 requests. Reporting for Section 408 should

be accomplished in a concurrent and coordinated manner with any other required USACE

actions for that project (e.g., pending Regulatory permit decisions or real estate decisions, etc.).

(9) Requesters seeking sensitive information about an existing USACE project to develop a

proposed alteration will submit requests for that information in writing to the district. Sensitive

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information includes information that could pose a security risk or aid those intending to do harm

to a USACE project. Examples include, but are not limited to, design analyses, as-builts or other

drawings, specifications, location of deficiencies, operational information, and contingency

plans. The district office that generated or is responsible for the information requested will

review the request in coordination with the district operational security officer to determine

whether it is sensitive. Districts should limit the distribution of sensitive information to only the

information that is necessary for the proposed alteration. Districts will advise requesters that the

information to be provided is sensitive and direct requesters to provide a list of individuals with

whom the information will be shared. Districts will advise requesters that the sensitive

information will not be shared with individuals not on the list. Reviewers should work with their

District Office of Counsel to determine if a non-disclosure statement is needed. In some cases,

districts may have to withhold sensitive information regardless of its necessity for the

development of a proposed alteration. Requests to USACE for other agency data will be referred

to the other agency for a release determination. Information provided by federally recognized

tribes during consultation may be sensitive and not publicly available. Districts must ensure

sensitive information provided by federally recognized tribes is not disclosed to the extent

allowable by law and that the administrative record pertaining to this sensitive information is

general in nature.

(10) Vertical coordination among district, division, and HQUSACE must occur when there

is any question related to the appropriate course of action; the nature of the Section 408 request

is without precedent; or the review of the Section 408 request requires deviation from policy.

8. Decision Authority. All final Section 408 decisions will comply with the following:

a. All Section 408 decision-makers must ensure accountability and consistency with federal

law and policy. Section 408 decision-makers must also ensure the appropriate and requisite

expertise has reviewed each Section 408 request.

b. A categorical permission may be created at the district, division, or HQUSACE level, but

must be approved and signed by a District Commander, Division Commander, or the Director of

Civil Works, depending upon the region in which it is applicable. Validation that a Section 408

request is consistent with the terms and conditions of a categorical permission and subsequent

authorization of the activity under the categorical permission may be delegated. The delegation

should be established through the process used to create the categorical permission. Reference

Appendix C for additional information for categorical permissions.

c. Division Review and Decision. The following are the Section 408 requests that will

require a final decision by the Division Commander and cannot be further delegated. Division

Commander decisions will consider the analysis and recommendation by the District

Commander. For Section 408 requests that require approval by the Division Commander and

uses the multi-phased review option (reference paragraph 10.c.), Division Commanders have

discretion to render a decision on any or all milestones, but must render the decision for the final

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milestone. Districts will keep divisions informed of the progress throughout the multi-phased

review process, including any issues and concerns that would be pertinent to the Division

Commander’s decision for level of involvement and rendering the final decision. The Division

Commander can delegate milestone decisions, except for the final milestone, to District

Commanders or the District Commanders’ designee.

(1) Proposed alterations that require a Safety Assurance Review (SAR), see paragraph

12.c.(4).

(2) Proposed alterations for the installation of hydropower facilities. Coordination and

concurrence with the division Dam Safety Officer and the division Hydropower Coordinator is

required prior to the final Section 408 decision.

(3) Proposed alterations for which the non-federal sponsor for a USACE project is seeking

potential credit under Section 221 of the Flood Control Act of 1970, as amended. A decision on

a Section 408 request is separate from any decision on potential credit for in-kind contributions.

See paragraph 9.g.

(4) Proposed alterations that affect the formulation, evaluation, or selection of alternatives

for a current study under the Investigations account or other USACE study. Coordination with

the division Chief of Planning is required prior to the final Section 408 decision. See paragraph

7.h.(6).

(5) Proposed alterations that change how the USACE project will meet its authorized

purpose. See paragraph 7.h.(7).

(6) Proposed navigation alterations for which federal assumption of operation and

maintenance under Section 204(f) of Water Resources Development Act of 1986, as amended, is

also being sought. See paragraph 9.f.(5).

d. District Review and Decision. All other decisions for Section 408 requests not included

in paragraphs 8.c.(1) through 8.c.(6) may be rendered by the District Commander. A District

Commander may further delegate authority for such decisions to his or her designees. The

delegation must be in writing and signed by the District Commander, with the delegation

identifying the name and title of the individual to whom authority is being delegated and what

limitations, if any, are being imposed. District Commanders may not delegate Section 408

decisions below a supervisory Division Chief level. No further re-delegation by a designee is

authorized. A copy of the delegation must be maintained in the office where the authority is

held.

e. At any time, the Director of Civil Works, Division Commanders, and District

Commanders have discretion to elevate decision-making authority for the final decision for a

specific Section 408 request based on the unique or special circumstances involved. The

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following are examples of the types of considerations for elevating a Section 408 decision level:

(1) The nature of the Section 408 request is without precedent;

(2) The review of the Section 408 request may require variation from regional or national

policy; or,

(3) A proposed alteration of a USACE project crosses more than one district’s or division’s

area of responsibility.

f. The appropriate National Environmental Policy Act (NEPA) decision document (Record

of Decision or Finding of No Significant Impact) will be signed by the USACE official making

the decision for the corresponding Section 408 request, if it is not already integrated into the

Summary of Findings document reference paragraph 15.b. Documentation of the applicability of

a categorical exclusion may be signed by the Section 408 decision-maker or other appropriate

district staff.

9. Determining When Procedures in this EC Apply. The following describes when the

procedures in this EC apply, along with exceptions. The following does not affect the

requirement for a Regulatory permit or any other applicable permits. Note, however, paragraphs

7.h.(4) and 7.h.(5) and Appendix G outline how Regulatory and Section 408 reviews must be

either consolidated or effectively aligned depending on certain circumstances.

a. Geographical Limitations.

(1) This EC must be applied to alterations proposed within the real property identified and

acquired for the USACE project, with exceptions further described in this section. An activity

affecting a USACE project not yet constructed or under construction is considered to be an

alteration, occupation, or use of a USACE project requiring permission under Section 408 if the

activity will occur on real property that the Federal Government has acquired for the USACE

project or that the non-federal sponsor has provided for the USACE project under the terms of a

Project Partnership Agreement (PPA).

(2) This EC must be applied to alterations proposed to submerged lands occupied or used by

a USACE project.

(3) This EC must be applied to alterations that cross over or under a federal navigation

channel when the alteration is also subject to either Section 9 or 10 of the Rivers and Harbors

Act of 1899.

(4) At the USACE district office’s discretion, this EC may be applied to alterations to

submerged lands proposed in the vicinity of a USACE project that occur in an area subject to the

navigation servitude, when it is determined that the alterations have the potential to impair the

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usefulness of the USACE project. Navigation servitude is defined as the dominant right of the

Government under the Commerce Clause of the U.S. Constitution (U.S. Const. art. I, sec. 8, cl.

3) to use, control, and regulate the navigable waters of the United States and the submerged lands

thereunder for various commerce-related purposes, including navigation and flood control. In

tidal areas, the servitude extends to all lands below the mean high water mark. In non-tidal

areas, the servitude extends to all lands within the beds and banks of a navigable stream that lie

below the ordinary high water mark.

(5) This EC should not be applied to proposed alterations occurring outside of the areas

specified in paragraphs 9.a.(1) to 9.a.(4). If there is a case in which a proposed alteration

occurring outside of the areas specified could impair the usefulness of a USACE project, such

cases should be coordinated vertically through the appropriate Regional Integration Team (RIT)

to determine the course of action.

b. Emergency alterations or emergency activities performed by USACE on USACE projects

under Public Law (PL) 84-99, reference A.29, do not require Section 408 permission.

Alterations by others that are considered an emergency and/or urgent, which may include interim

risk reduction measures, but not implemented under PL 84-99, may require Section 408

permission and this EC would apply. Districts will consider if the alteration meets other criteria

defined under this paragraph 9. If this EC applies, districts can reprioritize and expedite reviews

as appropriate given the urgency required for each specific situation. Reference Appendix D on

expediting environmental compliance in emergency situations.

c. Non-federal Sponsor Maintenance and Repair Activities. Maintenance and repair

activities conducted by non-federal sponsors on the USACE project for which they have

operation and maintenance responsibilities do not require Section 408 permission, but may

require coordination or concurrence from the USACE district, as further specified below.

(1) Operations and Maintenance (O&M) activities, including any floodfighting and/or other

emergency activities, specified in a USACE-issued O&M manual do not require Section 408

permission.

(2) Activities to restore the USACE project to the physical dimensions and design of the

constructed project, without any changes to the real property, existing design features, or

physical dimensions or performance of the USACE project do not require Section 408

permission. USACE districts may at any time require the non-federal sponsor to coordinate with

the district to verify the design or construction approach of such activities based on scope and

scale. USACE districts should proactively coordinate with the non-federal sponsor to identify, if

any, the types of activities that may need this verification.

(3) Geotechnical exploration drilling by the non-federal sponsor associated with activities

described in paragraphs 9.c.(1) and (2) does not require Section 408 permission. However,

drilling in embankment dams and levees must comply with requirements in reference A.31,

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including a drilling plan. Districts will coordinate with non-federal sponsors to develop the

drilling plan.

d. Improvements, excavations, construction, or changes to local flood protection works

referenced in 33 Code of Federal Regulations (CFR) 208.10(a)(4) and (5) do not negate nor

replace the requirement for approval from USACE under Section 408 as specified for such

activities in this EC.

e. When a proposed alteration will be carried out entirely within the boundaries of real

property of the United States or reservoirs managed by USACE, a separate evaluation under the

procedures in this EC is not required, so long as the alteration is either consistent with an

approved project master plan developed according to references A.34 and A.39, or subject to a

Report and Determination of Availability under chapter 8 of reference A.28. In such cases, the

project master planning process or the procedure for preparing the Report and Determination of

Availability satisfies the requirements for Section 408 for the proposed alteration. No separate

Section 408 permission is required to support issuance of the associated shoreline use permit or

outgrant. Note, in these instances, Regulatory can render a permit decision before USACE

issues the shoreline use permits or outgrants, as long as Regulatory has received the

Determination of Availability or confirmation of consistency with the approved project master

plan, whichever is applicable to the proposed alteration.

(1) When a federal agency other than USACE is responsible for issuing the permit or

outgrant authorizing a proposed alteration that will be carried out within the boundaries of real

property of the United States or reservoirs managed by the USACE (e.g., pipeline rights-of-way

issued by the Bureau of Land Management under 30 USC 185, or hydropower licenses issued by

the Federal Energy Regulatory Commission (FERC) under the Federal Power Act), a separate

Section 408 permission is not required if USACE provides the other federal agency with a

Report and Determination of Availability or confirmation of consistency with the approved

project master plan prior to the other federal agency’s issuance of the permit or outgrant. In

cases where a Report or Determination of Availability is not required by chapter 8 of reference

A.28, and the proposed alteration has not been evaluated during the project master planning

process, a Section 408 permission is required prior and in addition to, the permit or outgrant

issued by the other federal agency. In all cases, USACE will advise the other agency of any

special conditions that must be incorporated into the permit or outgrant issued by the other

federal agency.

(2) If a proposed alteration requires use of both real property of the United States and real

property owned by other entities or non-federal sponsors, then the processes in this EC will

apply. In these cases, USACE will incorporate the decisions associated with the USACE

required shoreline use permit, outgrant, or consent as part of the comprehensive Section 408

evaluation and decision.

(3) In cases in which a USACE real estate decision and Section 408 decision are both

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needed, the district will conduct these evaluations in a coordinated and concurrent manner to the

maximum extent practicable. Although reviews for both Section 408 and the real estate

decisions can be conducted concurrently, final decision-making requires that the Section 408

decision be rendered before or concurrent with, but not after, the USACE real estate decisions.

Implementing regulations and policies for the real estate decisions require the evaluation of

proposed activities and their compatibility with the purposes of a federal project. The Section

408 decision informs this element of the evaluation for shoreline use permits, outgrants, and

consents. The required shoreline use permit, outgrant, or consent must still be issued before the

alteration can be carried out on real property of the United States.

(4) Fees for administrative processing of outgrants issued by USACE will be determined by

applicable regulations and policy promulgated under the authority of 10 USC 2695 and 30 USC

185(l). Evaluation of a USACE project alteration requiring the issuance of a permit or outgrant

by another federal agency will be funded using Operation and Maintenance funds provided for

the USACE project or appropriate funding associated for coordination for non-federal

hydropower development, if applicable. If a Section 408 permission is required refer to

paragraph 7.f. for funding related to Section 408 reviews.

f. Non-Federal Construction of a Water Resources Development Project.

(1) Section 204 of WRDA 1986, as amended, authorizes non-federal interests to undertake

construction of certain water resources development projects, or separable elements, with

potential credit or reimbursement of the federal share of that construction, subject to several

requirements, including obtaining all necessary permits. If the proposed work under Section 204

would alter an existing USACE project, then the non-federal interest must obtain Section 408

permission under this EC, unless the proposed work has been authorized for construction by

Congress, or the USACE real estate policies and process applies (reference paragraph 9.e).

Further guidance on Section 204 of WRDA 1986 is included in reference A.38.

(2) If a Section 408 permission is needed to implement work under Section 204, conducted

consistent with a feasibility study, the procedures and process in reference A.38 will be followed

in lieu of the review and decision process in this EC, and the district report that is required for

approval for construction will also serve as the documentation and basis for the Section 408

permission decision. The Section 204 report will specifically address any impacts to the

usefulness of the existing USACE project and the public interest.

(3) Districts should ensure that, to the maximum extent practicable, information from the

feasibility study, including technical analyses, NEPA documentation, National Historic

Preservation Act (NHPA) documentation, and other environmental and cultural resources

compliance is used for the Section 204 report. Districts must determine whether physical or

environmental circumstances have changed since the feasibility study was completed and

supplement those analyses if necessary.

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(4) If the Section 204 report is approved by the Assistant Secretary of the Army for Civil

Works (ASA(CW)), this approval will also constitute approval of the Section 408 permission.

The District Commander will document that the Section 408 permission is granted and reference

the Section 204 report approval.

(5) For alterations for which the non-federal interest is seeking federal assumption of

maintenance under Section 204(f) of WRDA 1986, as amended, Section 408 permission will be

required unless the modification to the USACE navigation project has already been specifically

authorized by Congress. In order to avoid duplication of documentation for these two

authorities, districts should ensure that requirements for both are coordinated and leveraged to

the maximum extent practicable. Reference A.37 for the approval process and requirements for

a Section 204(f) request. In general, the Section 204(f) report will not be submitted to the

ASA(CW) for approval unless and until the Section 408 permission and any Section 10/404/103

permits have been approved.

g. In-kind Contribution Credit under Section 221 of the Flood Control Act of 1970, as

amended (Section 221). There may be cases in which a non-federal sponsor wishes to undertake

alterations to an existing USACE project for which there is an ongoing USACE feasibility study

and the non-federal sponsor seeks credit eligibility for those alterations toward its cost share for

the USACE project that is not yet authorized for construction. In such cases, any proposed

alteration for which the non-federal sponsor is seeking credit cannot be initiated until the draft

feasibility report is released for public review, an in-kind Memorandum of Understanding

(MOU) for the work is executed, and Section 408 permission is issued.

(1) In those cases where a non-federal sponsor is undertaking work as an in-kind contribution

on an authorized USACE project per an executed project partnership agreement that provides

credit for such work, Section 408 permission is not required.

(2) Detailed guidance on crediting can be found in reference A.36.

h. Actions conducted under the Comprehensive Environmental Response, Compensation,

and Liability Act (CERCLA). The portions of any removal or remedial action conducted

entirely onsite (as that term is used in CERCLA) in a manner consistent with CERCLA and the

National Contingency Plan (40 CFR Part 300) are not subject to the procedural requirements in

this EC. USACE will work with the United States Environmental Protection Agency (EPA) or

other federal agency undertaking or overseeing the CERCLA response during the investigation

and during the process of developing the removal or remedial action to ensure that the remedy

implemented does not impair the usefulness of the USACE project and is not injurious to the

public interest.

10. Options for Seeking Section 408 Permission. Early coordination between USACE, the

requester, and/or non-federal sponsor, if applicable, is recommended in order to determine the

optimal option below. All information must be submitted in writing to USACE.

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a. Categorical Permission. The district, division, and/or HQUSACE have the ability to

create a “categorical permission” in order to expedite and streamline the review and decisions of

Section 408 requests that are similar in nature and that have similar impacts to the USACE

project and environment. An assessment of impacts to the usefulness of the USACE project,

environmental compliance, and a public interest determination is conducted ahead of time for a

common category of activities. For those individual Section 408 requests that are consistent with

the terms and conditions of an established categorical permission, the Section 408 request can be

granted with a simplified validation process. See Appendix C for details.

b. Single-Phased Review. Requesters may submit all information needed for a Section 408

request, reference paragraph 11, at one time for USACE to review and render a decision.

c. Multi-Phased Review. This option provides a formalized process for requesters to pursue

Section 408 permission in milestones. In other words, there is a proposed alteration in which

interim reviews are conducted as the level of detail of the information is progressively

developed. However, the multi-phased review approach cannot be used to piecemeal the

evaluation of effects of the proposed alteration. Assessing effects to the environment, public

interest, and the USACE project must consider the proposed alteration as a whole. This

approach will require the district, the requester, and non-federal sponsor, if applicable, to

establish pre-determined milestones at which the requester will submit specified information to

the district. The district will review the information at each milestone to identify any concerns.

Based on the information provided at each milestone, the district will provide a written response

providing feedback and a determination as to whether or not the requester can proceed to the

next milestone. This approval to the next milestone means that USACE has not identified any

critical items that would preclude the eventual approval of the Section 408 based on the

information reviewed, but does not guarantee an approval of the final Section 408 request.

Information submitted for a specific milestone is not required to meet all of the basic

requirements for a complete Section 408 request; however, information for each milestone will

be cumulative and result in a complete Section 408 request with the information submitted for

the final milestone. The following are additional considerations for this multi-phased review

approach:

(1) Submittal for the initial milestone must contain enough information at a conceptual or

master plan level for USACE to understand the scope and scale of the complete Section 408

alteration. The initial submittal must also have the Statement of No Objection, if one is required,

reference paragraph 11.a.

(2) For the multi-phased review approach, the district must develop an alteration-specific

review plan for the complete alteration, reference paragraph 12.c., and is encouraged to initiate

development of the review plan, as soon as possible, including determining if a SAR is required.

Milestones will be managed, monitored, and adapted, if necessary, in the district review plan. If

a SAR is required, there may be additional review milestones required for design and

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construction activities.

d. If there is a situation that involves a long-term or large-scale plan, such as a watershed-

based master plan, comprised of the construction of multiple alterations occurring over time, this

case should be coordinated vertically through the appropriate RIT to the HQUSACE Section 408

proponent to determine the most efficient process to manage such a request.

11. Basic Requirements for a Complete Section 408 Request. All costs associated with

information required for obtaining a Section 408 permission, constructing the alteration if

approved, and complying with any conditions associated with the Section 408 permission is at

100 percent cost to the requester. This does not include costs for USACE to conduct the review

of the request. Costs associated with USACE review is addressed paragraph 7.f. If submitting

information for a categorical permission, reference the process in Appendix C. If the multi-

phased review approach is used, then the information needed for a complete Section 408 request

may be provided at different milestones for review. Because proposed alterations vary in size,

level of complexity, and potential impacts, the procedures and required information to make such

a determination are intended to be scalable. Requirements for data, analyses, and documentation

may be subject to change as additional information about the Section 408 proposal is developed

and reviewed. Determination for the required information for each Section 408 submittal is led

by the district. Supplemental information specific to dams, levees, hydropower, and navigation

can be found in the appendix appropriate to the type of infrastructure (Appendices E-G). Note,

identification of whether or not the proposed alteration also requires Section 10/103/404

authorization should be done up front, and districts should encourage requesters to submit any

required Section 10/103/404 request in a manner to facilitate concurrent and efficient reviews

with the Section 408 permission request, to the maximum extent practicable. Basic requirements

for a complete Section 408 request include the following:

a. Statement of No Objection. For USACE projects with a non-federal sponsor, a written

“Statement of No Objection” from the non-federal sponsor is required if the requester is not the

non-federal sponsor. Non-federal sponsors typically have operation and maintenance

responsibilities; have a cost-share investment in the USACE project; and/or hold the real

property for the USACE project. The purpose of the Statement of No Objection is to document

that the non-federal sponsor is aware of the scope of the Section 408 request and does not object

to the request being submitted to USACE to initiate the evaluation of the request. Districts must

coordinate with non-federal sponsors throughout the review process and ensure feedback from

non-federal sponsors is considered prior to USACE rendering a final decision on the Section 408

request. Requesters can ask the USACE district office to facilitate coordination with, and seek to

obtain the Statement of No Objection from, the non-federal sponsor. If a Statement of No

Objection cannot be obtained, the district will not proceed with the Section 408 review with the

following exceptions:

(1) A Statement of No Objection is not required if the requester is the non-federal sponsor.

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(2) A Statement of No Objection is not required when USACE has all operation and

maintenance responsibilities for the portion of the USACE project proposed to be altered.

(3) If a USACE project has multiple non-federal sponsors and potential impacts of the

proposed alteration are limited to the location of the alteration, Statements of No Objection are

required only from the non-federal sponsors associated with the locations with potential impacts.

However, if the proposed alteration may impact the usefulness of the USACE project as a whole,

Statements of No Objection must be obtained from all non-federal sponsors.

(4) A Statement of No Objection from the non-federal sponsor is not required if the requester

could obtain the real property necessary to undertake the alteration through eminent domain

without the consent of the non-federal sponsor, and the alteration will not be integral to the

functioning of the USACE project. An alteration would be considered integral to the USACE

project if the alteration must be complete, functional, and in-place in order for the USACE

project to function and meet its authorized purpose. In cases in which the alteration is not

considered integral to the USACE project, if the requester makes reasonable efforts, but is unable

to obtain a Statement of No Objection from the non-federal sponsor, the requester may submit a

Section 408 request with a written statement documenting the efforts to obtain a Statement of No

Objection, and cite the authority and process through which the requester will have the sufficient

authority to condemn all real property required for the alteration in the event the Section 408

request is approved by USACE. For these cases, USACE will independently seek input from the

non-federal sponsor on the potential impacts of the proposed alteration relative to the non-federal

sponsor’s responsibilities, and will take that input into consideration in making the Section 408

decision. Within 30 days of notification by USACE, the non-federal sponsor must provide its

input or may propose a timeline for providing feedback commensurate with the complexity of

the proposed alteration. If the non-federal sponsor provides no response within 30 days of

USACE’s notification, USACE may proceed with the review of the alteration request without

such input. Throughout the USACE review phase, USACE will continue to provide the non-

federal sponsor opportunities to provide input on the Section 408 request up until and just before

USACE renders a final decision. For these subsequent opportunities for input, districts can use

judgment as to the appropriate time in which to provide non-federal sponsors to respond.

Approval of the Section 408 under these circumstances does not negate the process the requester

must follow in order to obtain the real property needed to construct the alteration, nor provides

the requester with eminent domain authority.

(5) A Statement of No Objection is not required if, after a good faith effort, neither the

requester nor USACE can locate the non-federal sponsor or the non-federal sponsor’s successor.

If a requester is able to secure the necessary real property to execute the alteration but cannot

identify the non-federal sponsor or successor, the requester should document the measures taken

to locate the non-federal sponsor or successor and request that USACE determine if there is a

viable non-federal sponsor or successor. USACE should document their efforts and decision for

the administrative record and notify the requester.

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b. USACE Project and Alteration Description. Basic requirements for a complete Section

408 submittal include the identification of the USACE project and a complete description of the

proposed alteration(s), including necessary drawings, sketches, maps, and plans.

c. Technical Analysis and Design.

(1) The requester is responsible for ensuring a proposed alteration meets current USACE

design and construction standards. However, a requester is not required to bring those portions

or features of the existing USACE project that are not impacted by the alteration up to current

USACE design standards. The district will work closely with the requester to determine the

applicable USACE standards to be applied and the specific level of detail necessary to be

provided in order for USACE to make a decision for a particular alteration request. The district

determination of the appropriate level of detail will be risk-informed and documented in the

USACE review plan.

(2) Districts will inform the requester if a hydrologic and hydraulic system analysis is

required. The purpose of a hydrologic and hydraulics system analysis is to determine the

potential hydrologic and hydraulic changes of proposed alterations. Districts will determine if

such an analysis is needed and, if so, the appropriate scope of analysis based on the complexity

of the proposed alteration. See Appendix H for more details regarding the requirements of a

hydrologic and hydraulics system analysis.

(3) For alterations involving professional design services, the requester will be required to

submit a certification that the design underwent a quality control process.

(4) If the district determines a SAR is required, a SAR review plan must be developed by the

requester and the requester will be required to cover the costs of the SAR. A SAR is required for

design and construction activities where potential hazards pose a significant threat to life safety.

Districts will work with requesters to coordinate the development of the SAR review plan. See

paragraph 12.c.(4).

d. Environmental and Cultural Resources Compliance. A decision on a Section 408 request

is a federal action subject to NEPA and other federal environmental and cultural resources

compliance requirements, such as Section 7 of the Endangered Species Act (ESA), Section 106

of the NHPA, essential fish habitat (EFH) consultation, tribal consultation, etc. When

applicable, government-to-government tribal consultation is inherently a federal obligation and

must be conducted in a meaningful, collaborative and effective communication process working

toward mutual consensus, to the extent practicable and permitted by law, and begins at the

earliest planning stages. Ensuring and conducting environmental and cultural resources

compliance for a Section 408 request is the responsibility of USACE. However, the requester is

responsible for providing all supporting information and documentation that the district identifies

as necessary to assess compliance, such as species surveys, habitat assessments, and/or cultural

resource surveys. Requesters may, but are not required to, draft the NEPA environmental

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assessment or fund a contractor to prepare an environmental impact statement for a Section 408

request consistent with 40 CFR 1506.5. However, the district must ensure that any NEPA

documentation drafted by a requester or contractor is accurate and compliant with USACE and

Council on Environmental Quality (CEQ) requirements prior to accepting it for use with the

Section 408 request. A final Section 408 request cannot be rendered until the requester has

provided all information necessary for the district to complete its assessment for environmental

and cultural resources compliance. The district will work with the requester to determine the

requirements for the information the requester is required to submit to constitute a complete

request. The information required of the requester to facilitate the completion of environmental

compliance will be scaled to be commensurate with the degree of potential environmental effects

of the activity within the scope of the Section 408 analysis. Environmental and cultural

resources compliance for Section 408 requests will typically not require the same level of

detailed analysis as needed for feasibility reports or other planning studies. See Appendix D for

further information.

(1) Alterations that are expected to not result in significant effects to the environment, both

individually and cumulatively, should be evaluated for applicability with the approved

categorical exclusions at 33 CFR 230.9. However, activities that qualify for a NEPA categorical

exclusion must still satisfy compliance requirements under other statutes such as NHPA and

ESA, and must fulfill consultation obligations with federally recognized tribes. Documentation

of applicability of a categorical exclusion may be signed by the Section 408 decision-maker or

other appropriate district staff.

(2) For categorical permissions, the district will inform the requester if additional

documentation is necessary to complete environmental compliance.

(3) Districts are strongly encouraged to adopt and/or incorporate by reference any NEPA

documentation that may already exist for the USACE project.

(4) For those alterations in which another federal agency is the NEPA lead agency (e.g. such

as when FERC is the lead agency for private hydropower licensing, reference Appendix F),

districts will participate in the NEPA review as a cooperating agency to the maximum extent

practicable. Districts will typically adopt or incorporate by reference that federal agency’s

Environmental Impact Statement (EIS) or Environmental Assessment (EA) and consider it to be

adequate for NEPA compliance for a Section 408 permission, unless the district finds substantial

doubt as to the technical or procedural adequacy or omission of factors important to the Section

408 permission decision. Districts also have discretion to adopt/use another lead federal

agency’s environmental compliance documentation (ESA, NHPA, EFH, etc.) as allowable and

appropriate for the Section 408 permission decision. Districts should ensure that the lead agency

is informed of all needs to determine technical adequacy and environmental and cultural

resources compliance for the purposes of Section 408 early in the process.

(5) Districts have discretion and are encouraged to develop new or use existing

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programmatic NEPA documents (consistent with 40 CFR Part 1500.4(i)) and/or programmatic

environmental consultations for Section 408 requests, when appropriate.

(6) Clean Water Act, Section 401 Water Quality Certification. If the requirement for a state

water quality certification (33 USC 1341) applies to the alteration that is subject to a Section 408

review, as determined by USACE, then Section 408 authorization cannot be granted until the

certification has been obtained or waived, as provided for by statute.

(7) Per USACE tribal consultation policy, federally recognized tribes have the right to

request government-to-government consultation with the district. All requests by a tribe for

government-to-government consultation with USACE will be honored.

e. Real Estate Requirements. A description of the real property required to support the

proposed alteration must be provided. Non-federal sponsors issuing permits, outgrants, or

consents for alterations undertaken by others will ensure that the terms of the instrument or

agreement are consistent with the terms and conditions of the Section 408 permission, if

applicable. If additional real property is required for an alteration that will be integral to the

functioning of the USACE project, the district must follow the normal procedures to request

approval of any non-standard estates under the guidance in chapter 12 of reference A.28. Maps

clearly depicting both existing real property and the additional real property required must also

be provided.

f. Operation, Maintenance, Repair, Replacement, and Rehabilitation (OMRR&R).

Requesters must identify any projected requirements for OMRR&R needed throughout the life of

the proposed alteration and the responsible entity. For instances when there may be a desire for

USACE to assume or incorporate operations and maintenance of the proposed alteration as part

of its responsibilities for the USACE project being modified, a justification must be provided.

See paragraph 9.f.(5) for federal assumption of maintenance associated with navigation features.

If operation and maintenance of the USACE project is affected by the alteration, the requester, if

not the non-federal sponsor, must provide written documentation that the non-federal sponsor

agrees to assume responsibility for the changed OMRR&R of the USACE project at no cost to

the federal government. This written documentation must be received prior to USACE issuing

the Section 408 decision. If the Section 408 request is approved and an update to the USACE

issued O&M manual is needed as the result of the alteration, the requester will be required to

provide the district with sufficient information to update the portion of the O&M manual related

to the approved alteration. As part of this update, as-builts may be required. See paragraph 17.

g. If applicable, a written statement regarding whether credit under Section 221 of the Flood

Control Act of 1970, as amended, or other law or whether approval under Section 204 of WRDA

1986, as amended is being or will be sought must be provided.

12. USACE Review Requirements. In general, each Section 408 request will be reviewed by

USACE consistent with the following:

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a. Main Determinations.

(1) Impacts to the Usefulness of the USACE Project. The objective of this determination is

to ensure that the proposed alteration will not limit the ability of the USACE project to function

as authorized and will not compromise or change any authorized project conditions, purposes or

outputs. All appropriate technical analyses including geotechnical, structural, hydraulic and

hydrologic, real estate, construction, and operations and maintenance requirements, must be

conducted, and the technical adequacy of the design must be reviewed. In addition, the district

will determine whether or not the alteration is an integral component of the USACE project and

therefore, will be treated as a federal component of the USACE project once constructed,

including for purposes of the USACE Rehabilitation Program, reference A.29. An alteration

would be considered integral to the USACE project if the alteration must be complete,

functional, and in-place in order for the USACE project function and meet its authorized

purpose. If at any time it is concluded that the usefulness of the authorized project will be

negatively impacted, any further evaluation should be terminated and the requester notified.

Section 408 permission will not be granted for a proposed alteration that would have an effect of

deauthorizing a USACE project or eliminating an authorized project purpose.

(2) Injurious to the Public Interest. Proposed alterations will be reviewed to determine the

probable impacts, including cumulative impacts, on the public interest. Evaluation of the

probable impacts that the proposed alteration to the USACE project may have on the public

interest requires a careful weighing of all those factors that are relevant in each particular case.

The benefits that reasonably may be expected to accrue from the proposal must be compared

against its reasonably foreseeable detriments. The decision whether to approve an alteration will

be determined by the consideration of whether benefits are commensurate with risks. If the

potential detriments are found to outweigh the potential benefits, then it may be determined that

the proposed alteration is injurious to the public interest. Factors that may be relevant to the

public interest depend upon the type of USACE project being altered and may include, but are

not limited to, such things as conservation, economic development, historic properties, cultural

resources, environmental impacts, water supply, water quality, flood hazards, floodplains,

residual risk, induced damages, navigation, shore erosion or accretion, and recreation. This

evaluation should consider information received from key stakeholders, interested parties, tribes,

agencies, and the public. As a general rule, proposed alterations that will result in substantial

adverse changes in water surface profiles will not be approved. The Regulatory Program also

conducts a public interest review and cannot authorize activities that are “contrary to the public

interest.” When an activity requires both a Regulatory review and Section 408 review,

Regulatory and the office conducting the Section 408 review should closely coordinate and

leverage any information to inform their respective analyses to ensure efficiency and

consistency, to the extent appropriate.

(3) Legal and Policy Compliance. A determination will be made by the appropriate Office of

Counsel as to whether the request meets all legal and policy requirements.

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b. Public Notice. Districts must make diligent efforts to solicit public input as part of the

decision-making process for a Section 408 request. Except for requests that meet an established

categorical permission (where a public notice is issued as part of the establishment of the

categorical permission), districts should issue a public notice for all Section 408 requests

advising interested parties of the proposed alteration for which permission is sought and

soliciting information necessary to inform USACE's evaluation and review. At a minimum,

public notices should contain the requester, a description of the alteration being proposed, and

the location of the alteration. As such, this public notice must be circulated to the public by

methods deemed appropriate by the district (e.g., websites, email, social media, or media outlets)

as early in the evaluation of a proposed alteration as possible to generate meaningful public and

agency input to inform the evaluation and decision-making processes. Because input solicited

through the public notice process can inform various aspects of the Section 408 review, such as

the public interest determination, environmental compliance, Executive Order 11988, informing

navigation stakeholders of alterations located in inland and intracoastal waterways, Section 214

funding agreements, and corresponding Regulatory standard individual permit applications, all

effort should be made to ensure the public notice is developed and coordinated in a manner that

helps maximize the value and use of the input received, and reduces the potential for issuing

multiple public notices for different purposes. Likewise, for those Section 408 requests in which

another federal agency is the lead federal agency, districts should coordinate with the lead

agency to issue concurrent or joint public notices, when feasible and appropriate. The comment

period associated with the public notice should generally be no more than 30 calendar days, but

the comment period may deviate from this guideline in order to satisfy multiple purposes (i.e.,

60-day comment period for a draft EIS) or to facilitate a joint public notice with another federal

agency. Section 408 requests for which an environmental assessment (EA) is prepared or a

categorical exclusion is used, draft NEPA compliance documents should not be circulated for

public comment, except in rare circumstances. Instead, this public notice soliciting input will

serve as the method of involving the public in the NEPA process that is required by 40 CFR

1501.4(e)(1). Environmental compliance may require other consultation and public engagement

activities beyond a basic public notice. See Appendix D for more information on environmental

compliance.

c. USACE Review Plan. The review of each Section 408 request will be conducted in

conjunction with a review plan. Districts should ensure requesters understand the review

requirements as early in the process as possible. A review plan will define the USACE resource

requirements and procedures of how the review and decision for the Section 408 request will be

conducted and rendered, respectively. The USACE review team will be subject matter experts

based on expertise, experience, and skills, from multiple disciplines as necessary to ensure a

comprehensive review. If the requester is not the non-federal sponsor, the review plan must also

include opportunities for the non-federal sponsor to provide input on potential impacts to their

responsibilities throughout the review process. Districts are encouraged to review information

submitted by requesters as the review plan is being finalized, but no final Section 408 decision

will be rendered without an approved review plan in place. Section 408 review plans do not

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have to be posted on the internet. If a SAR is required, districts and divisions may use discretion

to post the SAR report on the district or division website. If the decision is made to post the

SAR report, districts and/or divisions will ensure appropriate protection of sensitive or security

related information when posting the SAR report.

(1) For categorical permissions, the review and validation process is established and

documented as part of the creation of the categorical permission; therefore, no separate review

plan is needed. Reference Appendix C for additional information for categorical permissions.

(2) Districts have the option to develop an overarching review plan, called a Procedural

Review Plan, that establishes the review procedures to be used for Section 408 requests similar

in nature and that have similar impacts and do not require a Safety Assurance Review (SAR),

reference paragraph 12.c.(4). Procedural Review Plans are approved by the Division

Commander; however, the Division Commander may delegate signature authority for the

Procedural Review Plan to either the Division Regional Programs Director or the Division

Regional Business Director. Districts must review and update approved Procedural Review

Plans on an annual basis. The division must reapprove the Procedural Review Plans if there are

any significant changes in scope or process.

(3) Districts must develop alteration-specific review plans for Section 408 requests that are

not covered by a categorical permission or Procedural Review Plan. Section 408 requests using

the multi-phased review approach, reference paragraph 10.c., or requiring a SAR, must have an

alteration-specific review plan. If the multi-phased review approach is being used,

documentation of established milestones will be managed in the district’s review plan for the

Section 408 request. Milestones can be adjusted as part of the process for updating the review

plan. The decision-maker for the Section 408 request, reference paragraph 8, will be the

approver of alteration-specific review plans. For example, if the decision-maker is the Division

Commander, the Division Commander or the Division Commander’s designee must approve the

review plan. The Division Commander may delegate signature authority for the review plan to

either the Division Programs Director or the Division Regional Business Director. If the Section

408 is to be approved by the District Commander, the District Commander must approve the

review plan and so on. The division may choose to approve alteration-specific review plans that

could be approved at the district level. Approved alteration-specific review plans must be

updated as needed; however, if there are any significant changes in scope or process of the

review, then the review plan must be reapproved at the appropriate approval level. The Review

Management Organization (RMO) responsibilities can be at the level in which the Section 408

decision is made, with the exception of Section 408 requests that require a SAR, reference

paragraph 12.c.(4). See reference A.40 for RMO responsibilities.

(4) The district Chief of Engineering will refer to reference A.40, or subsequent policy, to

determine if a SAR is required for a proposed alteration. For alterations involving a levee or

dam, this decision will be made in consultation with the district Dam Safety Officer or Levee

Safety Officer when they are not the same person as the Chief of Engineering. If the district

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determines a SAR is required, an alteration-specific review plan must be developed and the Risk

Management Center (RMC) will be assigned as the RMO for the entire Section 408 review

including the SAR. The final alteration-specific review plan and SAR review plan must be

endorsed by the RMC and approved by the Division Commander or the Division Commander’s

designee. The Division Commander may delegate signature authority for the review plan to

either the Division Regional Programs Director or the Division Regional Business Director. The

district will work with the requester in the development of the review plan for the SAR. The

district will include the requester’s SAR review plan as an appendix to the USACE alteration-

specific review plan.

13. Overall Process. The overall USACE review process for Section 408 requests involves four

main steps: completeness determination (reference paragraph 14); review and decision

(reference paragraph 15); final decision notification (reference paragraph 16); and construction

oversight (reference paragraph 17). All information submitted by the requesters should be

transmitted to the appropriate USACE district office having jurisdiction over the USACE project

being altered.

a. The first submittal of information to the USACE district office should have a cover letter

signed by the entity requesting the Section 408 permission.

b. Submittals may be accepted electronically (such as by email or file transfer) or by hard

copy. When the initial submittal is received, the district will create a database entry for that

request, including the assignment of a unique identifier (to be automatically generated by the

Section 408 database). The unique identifier will be used for tracking purposes throughout the

entire Section 408 request process and will be referenced in all correspondence with the

requester.

c. USACE will provide timely responses to requesters regardless of the type of Section 408

request or the stage of the review. Districts and divisions should prioritize work in a manner to

support timely responses and decisions (and within the timelines specified in paragraphs 14 and

15) to the maximum extent practicable.

d. Written notifications by districts to requesters can be provided by the district

electronically or by hardcopy, depending on the preference of the requester. Districts will tailor

content of the written notifications to each given situation. See Appendix J for example letters to

requesters.

e. At any time in the process, a requester may choose to withdraw their Section 408 request

in writing. In this case, the district will record the date of withdrawal in the Section 408

database.

f. For Section 408 requests involving funding agreements, the time required to develop and

execute funding agreements, reference paragraph 7.g., themselves will not be subject to the

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notification timelines referenced in paragraphs 14 and 15. The districts will ensure timely

responses and engagement in developing and executing funding agreements.

g. The written notifications to requesters may be issued and signed by the Section 408

Coordinator or other signatory designated by the District Commander, except for final decision

notifications. Final decision notifications for validation of categorical permissions, single-

phased decisions, or multi-phased review decisions will follow appropriate decision processes as

specified in paragraph 8.

14. Step 1: Completeness Determination. This first part of the process involves the requester

providing information to the district in one or more submittals in order to satisfy all the basic

requirements of a complete Section 408 request as indicated in paragraph 11. When a requester

submits information to a district office, districts are expected to provide a written completeness

determination within 30 days of receipt. If the district determines a submittal is not complete,

the district will provide the requester a written notification within 30 days of receipt, providing a

description of what information is required in order for the submittal to be complete. The 30 day

timeline for a completeness determination is then restarted upon any subsequent submittals of

information. A submittal will be determined complete and therefore initiating the 90-day review

and decision step (reference paragraph 15) when it meets one of the following scenarios:

a. For categorical permissions, information submitted by the requester will be considered

complete when the information provided demonstrates the proposed alteration appears to meet

the conditions of an established categorical permission. If the district can validate the use of the

categorical permission based on the information in the submittal of information within 30 days of

receipt, then the district can proceed and grant permission under the categorical permission and

notify the requester in lieu of providing a completeness determination letter. If not, then the 90-

day review and decision step will be initiated with the district providing a written notification

that the submittal seeking authorization under a categorical permission is complete.

b. For requests using the multi-phased review approach, a completeness determination will

be done on each milestone submittal. The requirements to determine what information is

required for each milestone should be pre-determined and planned by agreement between the

district and requester. When a district issues a written notification that a milestone is complete,

that will initiate the 90-day review and decision step for that milestone.

c. For requests intended for a single-phased review, a submittal will be determined

complete when all the basic requirements, reference paragraph 11, has been submitted. When a

district issues a written notification that all basic requirements have been submitted, that will

initiate the 90-day review and decision step for that Section 408 request.

d. If after evaluating the information provided by a requester the district determines that

processes in this EC do not apply, the district will provide the requester a written notification

within 30 days of receipt of the information with a description of why this EC would not apply

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and any other recommendations for the requester’s next course of action, if needed.

15. Step 2: USACE Review and Decision. During this step, USACE will evaluate the

information provided for the completeness determination following the review requirements in

paragraph 12. This second step of the process results in USACE providing a final decision for

either validating use of a categorical permission; a specific milestone; or a complete Section 408

request. Approval of the use of a categorical permission or a complete single-phase Section 408

request means that the requester can proceed to construction of the alteration, subject to specified

conditions. Approval of a specific milestone results in the requester proceeding to the next

milestone, unless the submittal is the final milestone. Approval of the final milestone constitutes

approval of the entire Section 408 request; must be render by the appropriate Section 408

decision-maker (reference paragraph 8); and results in the requester being able to proceed to

construction of the alteration, subject to specified conditions. Approved alterations for

construction must result in a fully functional element once construction is complete.

a. Timeline for Review and Final Decision. A final decision will be provided by USACE to

the requester within 90 days from the date the completeness determination was made by the

district, unless one of the following stipulations apply. This 90-day timeframe is inclusive of the

time needed for division review and decision, if required, and issuance of the final notification

(reference paragraph 16).

(1) If a final decision cannot be made within 90 days, the district will provide a written

notification to the requester with an estimated decision date. If the decision date extends beyond

120 days from a completeness determination, the district will send a memorandum through the

Division Commander to the Director of Civil Works with a description of the Section 408

request and a justification for the decision extending beyond 120 days. HQUSACE will provide

this information to the Committee on Environment and Public Works of the Senate and the

Committee on Transportation and Infrastructure of the House of Representatives.

(2) There may be cases during the USACE review and decision phase in which it is

identified that more information is needed to render a final decision. If the additional

information is needed to support or clarify the pending Section 408 request, the coordination for

obtaining the additional information can be done informally between the district and requester.

The 90-day timeframe for the final decision is not paused during this informal coordination. If

this coordination causes the USACE review and decision timeframe to extend beyond 90 days,

follow procedures in paragraph 15.a.(1). If the need for additional information is triggered by a

change in the scope or scale of the alteration to the extent that it would require significant new

information, such as new technical analyses, development of supplemental/re-initiation of

environmental compliance, and/or additional real estate review, the USACE review should stop

and the request should be withdrawn. This action will cease the 90-day review and decision

timeline. The district then must provide written notification to the requester that a new request

should be submitted to reflect the change in scope of the alteration. When the requester submits

all of the required information, a new completeness determination will be made (subject to the

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30-day timeline in paragraph 14) and the 90-day timeline will be restarted from the date of the

new completeness determination.

b. Summary of Findings. The district will create a Summary of Findings (content and

format scalable to the request) to serve as the decision document to summarize the administrative

record, including the review findings and the basis for the final Section 408 decision. A

Summary of Findings does not have to be developed for each individual milestone for the multi-

phased review approach, but is required when the final milestone is reviewed and must

summarize the entire Section 408 decision collectively. The Summary of Findings must include

the following, as a minimum:

(1) USACE project description and authorization;

(2) Brief description of the request;

(3) Description and reference to the review plan process followed, including SAR

determination;

(4) Summary of rationale and conclusions for recommending approval or denial, including

determinations for the impact to the usefulness of the USACE project; whether or not the

alteration is considered integral to the USACE project; and impacts to the public interest;

(5) Certification of legal sufficiency by Office of Counsel;

(6) Certification by the District Chief of Real Estate Division that all real property required

for the proposed alteration has been identified; the identified real property is sufficient to support

the alteration; and the proposed alteration will not adversely affect the USACE project’s real

property. If the proposed alteration will be integral to the functioning of the USACE project, the

District Chief of Real Estate Division must also certify that standard estates are being used for

the acquisition of any new real property that will become or may become a part of the USACE

project, or that the requester is seeking approval to use non-standard estates (see paragraph

11.e.);

(7) Description of any related, ongoing USACE studies (if applicable), including how the

proposed alteration may impact those studies;

(8) Summary of input from the non-federal sponsor, if the non-federal sponsor is not the

requester demonstrating that the district provided opportunity for the non-federal sponsor to

review and evaluate the proposed alteration along with the technical analysis and design,

environmental effects, real estate requirements, and potential O&M effects and that the district

sought to incorporate the non-federal sponsors feedback and concerns into the decision-making

process;

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(9) Summary of any changes to the O&M manual;

(10) If the district has determined that USACE would assume O&M responsibilities as part

of its responsibilities for the USACE project, include the rationale and any anticipated increase

in USACE O&M costs or if changes to O&M requirements would have to be implemented by

the non-federal sponsor, documentation that the non-federal sponsor has agreed to those changes

to their responsibilities;

(11) The NEPA Finding of No Significant Impact or Record of Decision, if the NEPA

decision has not already been documented (such as applicability of a categorical exclusion,

validation of a categorical permission, or an EIS led by another federal agency); and,

(12) Any additional final conclusions or information, including any associated controversial

issues.

16. Step 3: Final Decision Notification. The district is responsible for providing a written

decision signed by the USACE deciding official to the requester for all final Section 408

decisions, regardless of the decision level. This written decision must be issued within the 90-

day review and decision timeline.

a. For those requests in which the non-federal sponsor is not the requester, USACE will

coordinate the final decision with the non-federal sponsor.

b. If the final decision is to deny the request, the requester will be advised in writing as to

the reason(s) for denial.

c. If the final decision is to approve the Section 408 request, the district will provide a

written approval document. For cases involving a categorical permission, the written approval

will be validation that the categorical permission is applicable.

d. In situations in which the district is evaluating a Regulatory standard individual permit

application and Section 408 combined, reference paragraph 7.h.(4) and 7.h.(5), the district will

ensure the final Section 408 decision letter and associated conditions be part of the single

transmittal letter with the Regulatory permit.

e. Standard Terms and Conditions. At a minimum, the standard terms and conditions in

Appendix K, except where noted as optional, must be included in all Section 408 approval

notifications, including validation of use of a categorical permission. Districts and divisions may

include any necessary special conditions as requirements for approval.

17. Step 4: Construction Oversight. District costs for construction oversight and closeout should

be incorporated as part of review costs for the Section 408 request.

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a. Construction oversight. The district should develop procedures for monitoring

construction activities, including reviewing construction documentation at different phases if

necessary, for the approved Section 408 request scaled to the complexity of the alteration to

ensure the alteration is constructed in a manner consistent with the permission conditions. If a

SAR was required, there may be SAR activities that carry through during construction. Any

concerns regarding construction should be directed to the Section 408 requester (and the non-

federal sponsor if applicable) for resolution.

b. As-builts. Plans and specifications with amendments during construction showing

alterations as finally constructed will be furnished by the Section 408 requester after completion

of the work if required by the district. As-builts must be provided to the district and the non-

federal sponsor (if the requester is not the non-federal sponsor) within 180 days of construction

completion.

c. O&M Manual Updates. The Section 408 requester is required to provide the district with

sufficient information to update the portions of the USACE issued O&M manual to reflect

changes as a result of the constructed alteration if necessary. If the requester was not the non-

federal sponsor, the non-federal sponsor must be given must an opportunity to review all

proposed changes to the O&M manual. O&M manual updates may range from simple removal

and replacement of paragraphs or entirely new manuals depending on the scope and complexity

of the alteration. The district is responsible for reviewing and approving any updates needed to

the O&M manual as a result of the alteration. At a minimum, the update should include a

description of the new features, reference to the Section 408 approvals, as-builts, and instructions

regarding O&M of any new features not included in the existing manual. Reference A.32 and

A.34 for information on O&M manuals.

d. Post Construction Closeout. District may need to conduct a post construction on-site

inspection of the completed alteration to document final condition of the USACE project.

18. Enforcement.

a. Inspection and monitoring of approved and in-place alterations will be incorporated into

the inspection and oversight procedures for that specific USACE project.

b. The policy of USACE is to pursue enforcement and correction of unauthorized

alterations. If an unauthorized alteration is discovered, the district, after consulting with the

Offices of Counsel and Real Estate, will take the appropriate steps to remedy the unauthorized

alteration. Coordination with the district Regulatory office should also occur so it can be

determined if any action should be taken with respect to Section 10/404/103. Regulatory funds

cannot be used for enforcement and correction of unauthorized alterations. Specific enforcement

steps the district takes will depend on the particular nature of the unauthorized alteration and

whether the unauthorized alteration is located on project boundaries where a non-federal sponsor

holds the land rights for operations and maintenance. Non-federal sponsors with operations and

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A-1

APPENDIX A

References*

*Other appendices in this EC have additional references listed.

A.1. Rivers and Harbors Act of 1899, https://www.gpo.gov

A.2. Federal Power Act of 1920, https://www.gpo.gov

A.3. Section 106 of the National Historic Preservation Act of 1966, https://www.gpo.gov

A.4. Flood Control Act of 1970, as amended, https://www.gpo.gov

A.5. National Environmental Policy Act of 1970, https://www.gpo.gov

A.6. Section 103 of the Marine Protection, Research, and Sanctuaries Act,

https://www.gpo.gov

A.7. Section 404 of the Clean Water Act of 1972, https://www.gpo.gov

A.8. Section 7 of the Endangered Species Act of 1973, https://www.gpo.gov

A.9. Section 204 of Water Resources Development Act of 1986, as amended,

https://www.gpo.gov

A.10. Section 214 of Water Resources Development Act of 2000, as amended,

https://www.gpo.gov

A.11. Section 2036 of Water Resources Development Act of 2007, https://www.gpo.gov

A.12. Section 1005(b) of Water Resources Reform and Development Act of 2014,

https://www.gpo.gov

A.13. Title 41 of the Fixing America’s Surface Transportation Act (FAST-41),

https://www.gpo.gov

A.14. Section 1156(a)(2) of Water Resources Development Act of 2016, https://www.gpo.gov

A.15. 10 USC 2695 - Acceptance of funds to cover administrative expenses relating to certain

real property transactions, https://www.gpo.gov

A.16. 23 USC 139 - Efficient environmental reviews for project decision making,

https://www.gpo.gov

A.17. 30 USC 185 - Rights-of-way for pipelines through federal lands, https://www.gpo.gov

A.18. 33 USC 408 - Taking possession of, use of, or injury to harbor or river improvements,

https://www.gpo.gov

A.19. 33 CFR 208.10 - Local Flood Protection Works; Maintenance and Operation of

Structures and Facilities, https://www.gpo.gov

A.20. 33 CFR 230 - Procedures for Implementing NEPA, https://www.gpo.gov

A.21. 33 CFR 329 - Definition of Navigable Waters of the United States, https://www.gpo.gov

A.22. 36 CFR 327 - Rules and Regulations Governing Public Use of Water Resources

Development Projects Administered by the Chief of Engineers, https://www.gpo.gov

A.23. 36 CFR 800 - Protection of Historic Properties, https://www.gpo.gov

A.24. 40 CFR 1500-1508 - CEQ Regulations for Implementing the Procedural Provisions of

NEPA, https://www.gpo.gov

A.25. 50 CFR 402 - Interagency Cooperation - Endangered Species Act of 1973, as amended,

https://www.gpo.gov

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A-2

A.26. Executive Order 11988 - Floodplain management, https://www.archives.gov

A.27. AR 405-80, Management of Title and Granting Use of Real Property,

http://www.aschq.army.mil

A.28. ER 405-1-12, Real Estate Handbook, https://www.publications.usace.army.mil

A.29. ER 500-1-1, Emergency Employment of Army and Other Resources - Civil Emergency

Management Program, https://www.publications.usace.army.mil

A.30. ER 1105-2-100, Planning Guidance Notebook, https://www.publications.usace.army.mil

A.31. ER 1110-1-1807, Drilling in Earth Embankment Dams and Levees,