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The U.S. Army Corps of Engineers (USACE) issued a new engineering circular (EC 1165-2-216) to provide policy and guidance for processing requests to alter USACE civil works projects pursuant to 33 U.S.C. section 408. This new circular collects existing guidance from several informal documents, codifies USACE practice from some USACE Districts that process many 408 requests, and expands the guidance to cover other objectives beyond flood risk reduction, such as water supply, hydroelectric, and ecosystem restoration. Section 408 (33 U.S.C. section) is a decades old provision of Federal law that prohibits a non-Federal interest from altering a Federally authorized water resources development project without advance permission from the Secretary of the Army. That authority has been delegated to the Assistant Secretary of the Army, then to the Chief of Engineers, and then to the Director of Civil Works.  This new Engineering Circular provides the rules associated with that delegation.

Non-Federal interests around the country will have different reactions to the Engineering Circular depending upon the content.  For those non-Federal interests that have been processing complex flood damage reduction projects within the South Pacific Division, the Engineering Circular does not hold many changes. But for those non-Federal interests seeking to process changes of medium complexity, or those seeking to promote significant projects in some other division, the Engineering Circular includes new, more complicated processes that may add approval time and cost to the project.

Consistent with the statute, the Engineering Circular still requires that USACE determine whether the alteration will be injurious to the public interest and whether it will be impair the usefulness of the Federal project.  Alteration is defined as any action by any entity other than USCE that builds upon, alters, improves, moves, occupies, or otherwise affects the usefulness, or the structural or ecological integrity, of a USACE project, including encroachments approved pursuant to 33 C.F.R. section 208.10.

Here are a few highlights (or lowlights) from the new Engineering Circular:

  • The EC only applies within the lands and real property interests identified and acquired for the USACE project, where previously the guidance could have been interpreted as affected nearby work which might affect the Federal project.
  • Where a non-Federal sponsor cost shared the project but USACE maintains the Federal project, USACE will obtain written concurrence from each non-Federal sponsor.
  • No granting of permission is allowed under Section 408 for a proposed alteration that would have an effect of deauthorizing a project or eliminating an authorized project purpose.
  • A proposed alteration pursuant to Section 408 must meet 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.
  • As a general rule, proposed alterations that will result in substantial adverse changes in water surface profiles will not be approved.
  • The district, division, and/or HQUSACE have the ability to create a categorical permission for Section 408 that would cover potential alterations that are similar in nature and that have similar impacts.
  • Approvals can be made at the District level unless one of the following is true, in which case approval must be made at USACE HQ:
    • The alteration requires a Type II IEPR under EC 1165-2-214;
    • An EIS is required;
    • The alteration changes how the USACE project will meet its authorized purpose;
    • The alteration precludes or negatively impacts alternatives for a current Federal study;
    • The non-Federal sponsor is seeking credit under Section 221 of the Flood Control Act of 1970;
    • The alteration is for installation of hydropower; or
    • There is a desire for USACE to assume O&M of the proposed navigation alteration.

The Engineering Circular provides detailed directions of process, NEPA compliance necessary H&H analysis, real estate, plan review, Agency Technical Review, documentation, and funding requirements.


Photo of Scott L. Shapiro Scott L. Shapiro

Scott Shapiro is known for his expertise in flood protection improvement projects throughout California’s Central Valley. He is helping clients with more than a billion dollars in projects in California’s Central Valley and issues involving the Federal Emergency Management Agency (FEMA) and the…

Scott Shapiro is known for his expertise in flood protection improvement projects throughout California’s Central Valley. He is helping clients with more than a billion dollars in projects in California’s Central Valley and issues involving the Federal Emergency Management Agency (FEMA) and the U.S. Army Corps of Engineers (USACE) throughout the Western United States.

With a special focus on massive flood protection improvement projects, Scott advises clients through regulatory, contractual, financing, and legislative challenges. Acting as general or special counsel, he regularly interacts with senior management at USACE (Headquarters, South Pacific Division, and Sacramento District), the California Department of Water Resources, and the Central Valley Flood Protection Board. He was named to the National Section 408 Task Force and has been invited to give testimony to the National Academies. Scott was instrumental in helping the first regional flood improvement agency that took a basin threatened by flood risk from less than 30-year level of protection to a level of protection approaching 200-year.

Having worked with FEMA on issues of floodplain mapping and levee accreditation for many years, Scott has developed collaborative environments in which he fosters win-win solutions for his clients. He is also currently serving as the lead counsel on a flood insurance rate map (FIRM) appeal and has drafted Federal legislation to modify the National Flood Insurance Program (NFIP) several times.

Scott is known throughout the region for his extensive litigation experience focusing on cases arising from levee failures. He has litigated levee failures resulting from underseepage, failed encroachments, and rodent burrows as well as briefing levee overtopping cases at the appellate level. Scott is one of the few attorneys with experience litigating flood cases on behalf of plaintiffs as well as defendant government entities.