In order to make alterations to, or temporarily or permanently occupy or use, any U.S. Army Corps of Engineers federally authorized civil works project (e.g., federal levee) a Section 408 request must be submitted to the Omaha District for technical and policy compliance. Section 408 assures that proposed alterations are not injurious to the public interest and will not impair the usefulness of the project. Alterations proposed within a federally-constructed flood risk reduction project (FRRP) right-of-way (ROW) are subject to Section 408.
AUTHORITY & GUIDANCE
The authority to grant permission for the alteration or use of a USACE Civil Works project is contained in Section 14 of the Rivers and Harbors Act of 1899 and codified in 33 U.S.C. § 408. Engineering Circular (EC) 1165-2-220, “Policy and Procedural Guidance for Processing Requests to Alter US Army Corps of Engineers Civil Works Projects Pursuant to 33 U.S.C. § 408” was published 10 September 2018. The submittal requirements detailed in the EC are scalable to the size and complexity of the proposed alteration. Additional policy guidance may be found at the HQUSACE website:
Section 408 requests must come from or have a written Statement of No Objection from the non-federal sponsor(s) prior to USACE review. The engineer of record (EOR) for the proposed alteration must demonstrate and state that the proposed alteration does not adversely affect the operation or integrity of the FRRP. Programmatic Environmental Assessments (PEA) have been developed to address the potential environmental impacts of specific alterations to FRRPs. The PEAs may be used as applicable for National Environmental Policy Act (NEPA) compliance documentation and are available at the Omaha District Section 408 Website.
Generally, three (3) complete printed sets and one digital PDF of all documents should be provided. A pre-submittal meeting may be held upon request to discuss design features and USACE criteria. The EOR is responsible for coordinating with other agencies or offices within USACE if other reviews, approvals, or permits are required (e.g., Section 404 Regulatory permits).
Pursuant to Part 208.10 of Title 33 of the Code of Federal Regulation, sponsors have the responsibility and the right to do repair, replacement, and rehabilitation actions to the original design without USACE review or approval. Technical Assistance is provided upon request to sponsors who are planning repairs, upgrades, or other improvements to a FRRP. Section 408 requests often follow Technical Assistance requests.
Most O&M Manuals contain language defining the local sponsor’s responsibility to submit Technical Reviews for alterations proposed outside the ROW but within the critical area defined as 300 feet riverward and 500 feet landward of the centerline. Comments are provided as recommendations to the sponsor.