The U.S. Army Corps of Engineers (USACE) Fort Worth District has constructed numerous Civil Works projects throughout Texas. These USACE federally authorized Civil Works projects represent a diverse range of the USACE water resources mission: Flood Risk Management, Streambank Protection, Ecosystem Restoration, and Multi-purpose Lakes. This webpage describes the process for review and approval of requests to modify, alter, or occupy an existing USACE Civil Works project.
What is the Section 408 Authority?
Section 14 of the Rivers and Harbors Appropriation Act of 1899, as amended, and codified in 33 USC 408 (Section 408).
What is a Section 408 Permission?
Section 408 provides that the Secretary of the Army, upon the recommendation of the Chief of Engineers, may grant permission for the permanent or temporary alteration or use of any USACE Civil Works project, when in the judgment of such occupation or use that alteration will not be injurious to the public interest and will not impair the usefulness of such work. An alteration refers to any action by an entity, other than the USACE, that builds upon, alters, improves, moves, obstructs, occupies, or otherwise affects the usefulness, or structural or ecological integrity of an existing USACE Civil Works project.
What is a Section 408 Review?
A Section 408 review consists of a multi-disciplined engineering, environmental, real estate, and legal evaluation. The Fort Worth District Commander, or the Commander’s designee, has the authority to render decisions on Section 408 requests for alterations to USACE Civil Works projects that do not require review and decision by the USACE Southwestern Division Commander.
What Type of Section 408 Submittal Requires USACE Southwestern Division Review and Decision?
Section 408 requests that require USACE Southwestern Division Commander review and decision are:
- Proposed alterations that require a Safety Assurance Review (SAR)/Type II Independent External Peer Review (IEPR).
- Proposed alterations for the installation of hydropower facilities. Coordination and concurrence with the division Dam Safety Officer and the division Hydropower Coordinator is required prior to the final Section 408 decision.
- Proposed alterations for which the Non-Federal Sponsor for a USACE project is seeking potential credit under Section 221 of the Flood Control Act of 1970, as amended. A decision on a Section 408 request is separate from any decision on potential credit for in-kind contributions.
- Proposed alterations that affect the formulation, evaluation, or selection of alternatives for a current study under the Investigations account or other USACE study. Coordination with the division Chief of Planning is required prior to the final Section 408 decision.
- Proposed alterations that change how the USACE Civil Works project will meet its authorized purpose.
- Proposed navigation alterations for which federal assumption of operation and maintenance under Section 204(f) of Water Resources Development Act of 1986, as amended, is also being sought.
Glossary of Terms.
Requester refers to an entity, other than USACE, that is requesting permission to alter a USACE Civil Works project. A request for a Section 408 permission may originate from a Non-Federal Sponsor or an independent entity. The consultant or agent is not the Requester.
Non-Federal Sponsor refers to a non-federal interest, as defined in the Flood Control Act of 1970, as amended (42 USC 1962d-5b(b)), that has provided assurances or executed a binding agreement for the provision of items of local cooperation for a USACE project, including, as applicable, operation and maintenance.
Is there a Fee for a Section 408 Review?
No. The Section 408 review is funded through the USACE Civil Works appropriation. There are authorities available that allow outside entities to contribute funds through funding agreements, and in some cases, expedite Section 408 reviews. The authorities include Section 214 of the Water Resources Development Act (WRDA) of 2000, 23 USC 139(j) and Section 1156(a)(2) of WRDA 2016. These funding agreements are generally better suited to larger, more complex alterations, or for Requesters or Non-Federal Sponsors that will submit multiple future Section 408 requests.
What is the Timeline for a Section 408 Review?
The USACE has 30 days to determine if a Section 408 request is complete. A final decision will be provided by USACE to the Requester within 90 days from the date the completeness determination has been made by the District. This 90-day timeframe is inclusive of the time needed for USACE Southwestern Division review and decision, if required, and issuance of the final notification. Refer to Engineer Circular 1165-2-220, paragraph 15a for additional information.
How to Submit a Section 408 Request?
To initiate the Section 408 process, the Requester should first contact the Non-Federal Sponsor (or USACE lake manager, if applicable).
The Requester must submit a letter to the USACE Section 408 Coordinator, before USACE can hold a pre-application meeting, which must include the name of the USACE Civil Works project(s) impacted, a description of the proposed alteration, Requester contact information, identification of the authorized agent(s), and statement whether authorization under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899 are also necessary. The letter may be submitted electronically attached to an email from the Requester to the Section 408 Coordinator. The letter must be signed by the Requester and copied to the Non-Federal Sponsor (or USACE lake manager, if applicable). The Requester should fill out the Regulatory Division preliminary data entry sheet prior to a USACE pre-application meeting if authorization under Section 404/10 will be necessary.
A standardized national USACE Section 408 application form is being developed and will be posted to this webpage when available.
What is Required in a Section 408 Submittal?
Engineer Circular 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” provides policy and procedural guidance for processing requests by private, public, tribal, or other federal entities to make alterations to, or temporarily or permanently occupy or use, any USACE federally authorized Civil Works project under 33 USC 408 (Section 408).
In addition to requirements in Engineer Circular 1165-2-220 (see paragraph 11 for basic requirements) the following information is important in ensuring a timely review:
- Section 408 applies to the real property identified and acquired for the USACE Civil Works project
- Section 408 submittals should be concise, organized documents, containing all required information as described in EC 1165-2-220
- Section 408 submittals should include a table of contents identifying all portions of the submittal
- Section 408 submittals may include appendices or attachments for large documents, however, these appendices or attachments should be named in the table of contents
- Section 408 submittals should be as complete as possible, and submitted first to the Non-Federal Sponsor (or USACE lake manager, if applicable) prior to submission to USACE
- Section 408 submittals must have a separate Statement of No Objection letter signed by the Non-Federal Sponsor, before the USACE will review the Section 408 request
- Identification of the USACE project and a complete description of the proposed alteration(s), including necessary drawings, sketches, maps, and plans
- Provide a description of the overall project including the project purpose and need. Describe the parts of the project that would affect and impact the USACE project. If the project is part of a larger plan of development, please describe this and provide any relevant maps or figures.
- Letter signed by the entity requesting the Section 408 permission
- Cover letter should identify the agents/consultants that represent the Requester
- Real estate requirements including a description of real property required to support the proposed alteration and maps clearly depicting existing real property and additional real property, if required. Include the draft real estate easement, other instrument, or modification of existing agreements that the Non-Federal Sponsor would grant to the Requester, if applicable.
- Provide an overview figure(s) of the proposed alteration for use in a USACE public notice and for agency coordination. Figure guidelines: 1) portrait orientation, 2) aerial background, 3) inset map displaying regional location, 4) PDF format, 5) try to limit number of overview figures up to 3.
- Do not submit copies of previously approved USACE feasibility reports or National Environmental Policy Act documents unless requested by USACE (incorporate these documents by reference in the submittal)
- Official Species List from the U.S. Fish and Wildlife Service online Information for Planning and Consultation (IPaC)
- Cultural resources report, if required
- Environmental compliance documentation, if required
- Geotechnical report, if required
- Hydrology and hydraulics report, if required
- For alterations involving professional design services, the requester will be required to submit a certification that the design underwent a quality control process