In February 2018, the U.S. Army Corps of Engineers (“Corps”) issued a draft Engineering Circular (“EC”) outlining proposed policies and procedures regarding how it will address third-party requests to alter civil works projects pursuant to Section 14 of the Rivers and Harbors Act (33 U.S.C. § 408), more commonly referred to as “Section 408.” The draft EC can be viewed by following this link. In general, the draft EC aims to streamline the Section 408 permitting process for alteration or occupation of a Corps facility by improving coordination between the Section 408 review process and overall project review, improving both internal and external communication regarding Section 408 requests, as well as identifying funding sources to support the processing of Section 408 requests. EC at 3-4.

Under Section 408, the Corps must grant permission for parties other than the Corps to alter or occupy civil works projects previously constructed by the Corps such as dams, levees, or flood channels. Such alterations may take the form of improvements to those civil works projects associated with the development of adjacent property, the relocation of parts of the existing projects, or the installation of utilities. Examples include modifications to existing flood control or storm water management facilities required for large-scale commercial development, the construction of pipelines, or the construction or modification of hydropower projects that necessitate modifications to existing Corps’ facilities.

Section 408 review usually occurs at the end of a broader project permitting process and requires the Corps to review engineering, environmental, legal, and safety issues associated with the requested modification. This review has the potential to delay projects, as well as provide opportunities for project opponents to concentrate challenges as part of the Section 408 approval process. A broader overview of the Corps’ administration of civil works projects and proposals to alter or use such projects, including the existing guidance documents issued by the Corps, can be viewed on the Corps’ Section 408 website.

When the Corps first issued its EC, it originally proposed a 30-day public comment period. That comment period has now been extended for an additional 30 days, and will expire on April 6, 2018. Public comments may be submitted by mail, by email, or by utilizing the comment form linked to this announcement