Guidance

As many in the industry have learned recently, the FY 17 budget only included approximately $3 million nationwide for processing 33 U.S.C. Section 408 review. This is the Section under which the U.S. Army Corps of Engineers (USACE) claims jurisdiction to review and approve any alterations or encroachments to Federally authorized water resources facilities such as levees and channels. As a result, in the last few weeks the funds were all expended and, even after a $500,000 reprogramming, the USACE has only been able to fund a limited number of 408 reviews nationwide. In order to address this issue, and keep review moving, USACE just issued new guidance for a simpler form of funding USACE’s review.

Until now, USACE has recommended that non-Federal interests use Section 214 agreements to fund review. This mechanism, however, was very awkward. First, only public entities were able to use section 214 agreements. Second, even for the public agencies, the agreements were very restrictive (being for a broader range of actions than just Section 408 review) and modifications to the agreements were very hard to obtain. In response, USACE has provided guidance on a simpler form of agreement. The guidance dated June 27 makes clear that it applies to pubic and private entities alike.  It also makes clear that the form of agreement can be amended through negotiation with the Detract or Division, without a need to go to Headquarters.

Upon our first read, we were concerned about paragraph 5(a) which states: “In order to preserve impartial decision making, the funds cannot be used by the final decision maker for his or her review, recommendations, or decision concerning a Section 408 request.” As we read this, it seemed that while funds were available for review, they were not available for approval. However, after consulting with USACE staff, the staff confirmed that this provision only reconfirms USACE’s existing rules that a non-Federal interest can’t buy a decision. In the case of the final 408 decision, the funding for that would be using existing USACE funding sources.

[Please note that as of the writing of this blog, USACE had only posted the Implementation Memo, and the Template Agreement had not yet been posted. We have been assured it will be posted soon.]