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Section 408

Through the Civil Works program, the US Army Corps of Engineers (USACE) serves the public by providing the Nation with quality and responsive management of the Nation’s water resources.  As a result, USACE, in partnership with stakeholders, has constructed many Civil Works projects across the Nation’s landscape. Given the widespread locations of these projects, many embedded within communities, over time there may be a need for others outside of USACE to alter or occupy these projects and their associated lands.  Reasons for alterations could include improvements to the projects; relocation of part of the project; or installing utilities or other non-project features.  

In order to ensure that these projects continue to provide their intended benefits to the public, Congress mandated that any use or alteration of a Civil Works project by another party is subject to the approval of USACE.  This requirement was established in Section 14 of the Rivers and Harbors Act of 1899, which has since been amended several times and is codified at 33 USC 408 (Section 408). 

Section 408 provides that USACE may grant permission for another party to alter a Civil Works project upon a determination that the alteration proposed will not be injurious to the public interest and will not impair the usefulness of the Civil Works project.  USACE has established the following policy and procedures for implementing Section 408.   

 Below is the list of documents that contain USACE’s current policy and procedures for Section 408:

  • Engineer Circular (EC) 1165-2-216, Policy and Procedural Guidance for Processing Requests to Alter U.S. Army Corps of Engineers Civil Works Projects Pursuant to 33 USC 408, found at www.publications.usace.army.mil by searching under Engineer Circulars.

  • Memorandum, Interim Guidance on Section 408 Decision Level, 10 November 2016, found through this direct link  

  • Memorandum, Interim Guidance on Applicability of EC 1165-2-216 within Navigable Waters, 16 June 2017, found through this direct link  

  • Memorandum, Implementation Guidance for Section 1156(a)(2) of the Water Resources Development Act of 2016 (WRDA 2016), Contributed Funds, 27 June 2017, found at http://www.usace.army.mil/Missions/Civil-Works/Project-Planning/Legislative-Links/wrda2016/ under implementation guidance. 

  • Memorandum, Delegation Authority for District Commanders for Section 408, 25 August 2017, found through this direct link

  • Memorandum, Extension of EC 1165-2-216, Policy and Procedural Guidance for Processing Requests to Alter US Army Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. 408, 07 November 2017, found through this direct link

  • Director’s Policy Memorandum, Section 408 – Interim Changes for Immediate Implementation and Future Policy Revisions, 12 January 2018, found through this direct link

 

Announcements:

USACE has completed a new draft policy document (EC 1165-2-220) intended to replace the current documents above. A fact sheet with additional information can be found at this direct link. USACE is currently reviewing comments received from all interested parties during an open comment period which ended on April 6, 2018.  The draft EC can be found at this direct link and at http://www.regulations.gov (docket number COE-2018-0003).

All comments received are available on http://www.regulations.gov under docket number COE-2018-0003.  When EC 1165-2-220 is finalized, a notice will be posted to docket number COE-2018-0003 and on this website along with a copy of the final document and a summary of the comments received and corresponding revisions to the draft document.  USACE anticipates having EC 1165-2-220 finalized by summer 2018.

Please email any related questions to HQ-Section408@usace.army.mil