Section 14 of the Rivers and Harbors Act approved March 3, 1899, (33 U.S.C. 408), provides that it is not lawful for any person to alter a project built by USACE without permission from the Army. Section 408 provides that permission to alter a project can be granted if the Secretary of the Army determines the alteration will not be injurious to the public interest and will not impair the usefulness of the project.
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’s procedures for reviewing requests for Section 408 permission is contained in Engineer Circular (EC) 1165-2-220. The corresponding internal guidance related to designating a lead district as referenced in EC 1165-2-220 can be found at this link.
To view a fact sheet with additional information about Section 408 and the revised policy, click here.
USACE reviewed and considered public comment on the draft EC 1165-2-220 to inform the final policy and procedural guidance. To view the summary of comments received, click here.