Section 408 (33 U.S.C. section)

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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.

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.