NWC submitted comments to the U.S. Army Corps of Engineers in response to its draft engineer circular (EC) 1165-2-220 to implement Section 408 of Title 33 of the U.S. Code. Section 408, which codifies section 14 of the Rivers and Harbors Act of 1899, applies to certain proposed actions at “any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States,” and certain other equipment associated with “the construction of such work under the control of the United States,” where such a work is “for the preservation and improvement of any of its navigable waters or to prevent floods, or as boundary marks, tide gauges, surveying stations, buoys, or other established marks.” The draft EC provides policy and procedural guidance for processing requests to occupy or make alterations to such works.
NWC’s comprehensive comments offer praise for elements of the draft EC which were responsive to concerns raised to the Corps about application of the new 408 process, including coordination of the 408 process with other reviews to avoid unnecessary duplication, as well as the use of categorical permissions.
The comments also express concern about the scope of the draft EC, noting that Section 408 expressly applies to “works,” whereas the EC applies to “projects,” which is beyond the scope of the statutory language. In addition, NWC offered recommendations on ways to further streamline the application process, ensure that it is applied in a timely and efficient manner, and include the involvement of the non-federal sponsor. In that regard, NWC expressed its opposition to eminent domain provisions that would allow an applicant to proceed without the assent, or even over the objection of, the non-federal sponsor.
Read the complete comments here: NWC . 408 Draft Circular . 4-6-2018 (263KB)