Location
Rock Island District
Description
The Section 14 of the Rivers and Harbors Act of 1899 and codified in 33 USC 408 (commonly referred to as “Section 408”) authorizes the Secretary of the Army, on the recommendation of the Chief of Engineers of the US Army Corps of Engineers (Corps), to grant permission for the alteration or occupation or use of a civil works project provided the Secretary determines that the activity will not be injurious to the public interest and will not impair the usefulness of the project.
Background
On September 10, 2018, USACE issued an Engineer Circular (EC), 1165-2-220, Policy and Procedural Guidance for Processing Requests to Alter U.S. Army Corps of Engineers Civil Works Projects Pursuant to 33 USC 408. The EC provides the policies and procedural guidance for an overall review process that can be tailored to the scope, scale, and complexity of individual proposed alternations, and provides infrastructure specific considerations for dams, levees, floodwalls, flood risk management channels and navigation projects.
The EC provides clarification on the applicability of Section 408, reduces the number of activities that require Section 408 permission, and improves the overall decision process. The EC allows: delegation of Section 408 decisions to either the Division or District Commander; requires one agency decisions for cases when a proposed activity requires both a Section 408 and a USACE Regulatory (Section 404/10) decision; elimination of the 60% minimum design requirement for Section 408 decisions; and improved delivery through timelines for reviews and notifications in accordance with the Water Resources Development Act of 2016. Upon receipt of a Section 408 request, USACE has 30-days to make a completeness determination and 90-days to issue a final decision (120-max day max timeline).
It is important to note that all approved alterations must be designed and constructed to applicable Corps design standards. In many cases Corps design standards exceed other federal, state, and local requirements. In addition, issuing a Section 408 permission is considered a federal action which requires each proposal to comply with all federal laws including, but not limited to, the National Historic Preservation Act, Endangered Species Act and National Environmental Protection Act.
Actions that do not require permission under Section 408 include routine operation and maintenance activities as allowed by the operation and maintenance manual of non-federal sponsors. Also, actions outside of the lands and real property interests identified and acquired for the Corps civil works projects, or available to the Corps under navigational servitude.
Categorical Permissions
On December 20, 2023, the Rock Island District renewed MVR categorical permissions for similar and reoccurring Section 408 requests within the district’s boundaries. A full list of these permissions is located on the District’s Section 408 website. The development of these permissions has improved the overall delivery of Section 408 decisions by completing the necessary technical, environmental, and public interest reviews for these similar types of actions. Since 2019 over 80% of all the district’s 408 requests have been processed under a Categorical Permission.
Status
Section 408 requests range in complexity and the amount of coordination necessary to issue a permission. In addition to on-going reviews and coordination activities, this District receives approximately 50 new requests annually. In 2023, 41 Section 408 permissions were granted, and 64 new requests were submitted. The District also provided technical guidance to many potential applicants which helped avoid or minimize the impacts to a federally authorized project. The program is on pace thus far in 2024 to process the same amount of requests and consultations. Through the Section 408 program and with ongoing cooperation of our local and state partners the district continues to help ensure that the federally constructed civil works projects will continue to operate as designed.
The Risk Management Center funds Districts on a monthly basis to deliver the Section 408 Program. Historically, the Rock Island District has required between $400,000 and $600,000 to deliver the District’s Section 408 program.
Additional Information
Authority
SI - Special Interest
33 USC 408
Summarized Project Costs
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Estimated Federal Cost
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N/A
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Estimated Non-Federal Cost
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N/A
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Estimated Total Project Cost
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N/A
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Allocations Prior to FY 2024
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N/A
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FY 2024 Allocation (Estimate)
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$600,000
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FY 2025 President’s Budget
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TBD
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FY 2025 Total Capability
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$600,000
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Major Work Item Current Year
FY 2024: During FY 2024, the District has processed and awarded 28 different Sec 408 permissions and performed pre-submittal coordination with another 30 projects. The District initiated an internal Sec 408 program review. The District also renewed Section 408 Categorical Permissions on December 20th, 2023.
Major Work Item Next Fiscal Year
FY 2025: If funded, the District will continue to receive, review, and coordinate new Section 408 requests. It is anticipated that the Corps' Section 408 policy will be going through the rule making process to codify the program by the end of CY 2024. The District will actively coordinate and communicate the status of this effort with the public to ensure they are aware of this on-going process and their ability to participate.