USACE Issues Updated 408 Guidance
The U.S. Army Corps of Engineers has issued Engineer Circular 1165-2-220, updating the process and criteria used to review requests to alter civil works projects. Section 408, named for its U.S. Code citation at 33 USC 408, was enacted as section 14 of the Rivers and Harbors Act of 1899. As expressed by the Corps in the 408 background materials, the purpose of the review is to ensure that the Congressionally-authorized benefits of a USACE project are not undermined by an alteration made by others, and to ensure that the alteration is not injurious to the public interest.
Accompanying the new EC, the Corps put forth a summary of the comments received and the responses to those comments. The comments generally support the improvements to the 408 review process, including the development of categorical permissions. USACE also expressed its intention that the review process is intended to be scalable, so that smaller, more routine alterations are less burdensome and complex than larger and more complex alterations. In response to concerns about adequate staff and resources to efficiently process requests under this authority, USACE stressed its commitment to ensure training on the new EC’s intent and processes.
With respect to the role of the nonfederal sponsor when the 408 permission is sought by an independent requester, the EC sets forth various points throughout the process when coordination would be appropriate, including in some instances an initial statement of no objection. The EC also seeks to better align the 408 process with the regulatory program and environmental compliance requirements. In addition, the EC includes step-by-step procedures, with timelines integrated into the process, which can be tracked in a forthcoming database.
In response to NWC’s longstanding concern that 408 applies to “built works” or “engineered structures,” the EC seeks to clarify the geographical limitations of its applicability, but reaffirms the Corps’ policy of applying 408 to a more broadly applicable scope of “projects.” The reasoning is that alterations to any land within the project boundary have the potential to impact the ability of the project to perform its Congressionally authorized purpose. The EC does seek, however, to avoid duplication with its real estate reviews.
The updated EC, along with background information, can be viewed here: https://www.usace.army.mil/Missions/Civil-Works/Section408/
Earlier this year, NWC submitted comments in response to the Corps’ draft EC, which can be found here: NWC . 408 Draft Circular . 4-6-2018 
(263KB)