U.S. Army Corps of Engineers - Section 408 Authorization (7-FD-u)
Section 14 of the Rivers and Harbors Act of 1899, 33 USC 408, (commonly referred to as “Section 408”) authorizes the U.S. Army Corps of Engineers (USACE) to grant permission for the alteration, occupation or use of a USACE project if certain requirements are met. USACE EC 1165-2-216. USACE may grant permission for the temporary occupation or use of any public works if it determines that the occupation or use will not be injurious to the public interest. USACE may grant permission for the alteration or permanent occupation or use of any of the public works if it determines that such occupation or use will not be injurious to the public interest and will not impair the usefulness of the work. 33 USC 408.
U.S. Army Corps of Engineers - Section 408 Authorization Process
7-FD-u.1 – Request for 408 Permission
The developer must submit a written request for Section 408 permission to use or alter a project to the applicable district office (“District”). EC 1165-2-216, page 8. The written request must include the following:
- A complete description of the proposed alteration or use including necessary drawings, sketches, maps, and plans that are sufficient for the district to make a preliminary determination as to the location, purpose and need, anticipated construction schedule, and level of technical documentation needed to inform USACE’s evaluation;
- A written statement regarding whether the developer is also pursuing authorization pursuant to Sections 10/404/103 and, if so, the date or anticipated date of application/pre-construction notification submittal;
- Information regarding whether credit under Section 221 of the Flood Control Act of 1970, as amended, or other law or whether approval under Section 204(f) of WRDA 1986 is being or will be sought;
- A written statement of whether the developer will require the use of federally-owned real property or property owned by the non-federal sponsor; and
- A written statement from the non-federal sponsor endorsing the proposed alternation, if applicable.
7-FD-u.2 – Confirm Compliance with FERC and NEPA Requirements
USACE must confirm that the developer has a valid preliminary permit or license from the Federal Energy Regulatory Commission (FERC) to investigate the potential for adding hydroelectric power facilities to the civil works project. EC 1165-2-216, page C-2. A decision on a Section 408 request is considered a ‘federal action,’ and thus is subject to the National Environmental Policy Act (NEPA). USACE must confirm that the developer has complied with all NEPA requirements. EC 1165-2-216, page 10.
7-FD-u.3 to 7-FD-u.4 – Review Application Materials for Completeness
USACE will review the application materials to ensure that all required elements are present. USACE may request additional information from the developer. EC 1165-2-216, page 13.
7-FD-u.5 – Conduct Pre-Coordination (Optional)
Early coordination between USACE and the developer is strongly recommended because it will aid in identifying potential issues, focusing efforts, minimizing costs, and protecting sensitive information. EC 1165-2-216, page 8.
7-FD-u.6 – Designate a District Section 408 Coordinator
The District Commander will designate a Section 408 Coordinator responsible for ensuring the necessary procedures are followed and to ensure proper coordination between the necessary district elements. EC 1165-2-216, page 7.
7-FD-u.7 – Conduct Technical Review of Request
The District must conduct a technical review of the request. The technical review consists of the following:
- Impair the usefulness of the project determination: This determination is used to ensure that the proposed alteration will not limit the ability of the project to function as authorized and will not compromise or change any authorized project conditions, purposes or outputs.
- Injurious to the public interest determination: Any proposed alteration to the project must be reviewed to determine the probable impacts, including cumulative impacts, on the public interest.
- Legal and policy compliance determination: This determination is used to ensure that the proposal meets all legal and policy requirements.
7-FD-u.8 – Summary of Findings
USACE will issue a Summary of Findings outlining the District’s rationale and conclusions for recommending approval or denial. The Summary of Findings contains the following, if applicable:
- Summary of rationale and conclusions for recommending approval or denial;
- Written request;
- A physical and functional description of the existing project, including a map;
- Project history and authorization;
- Impact to the usefulness of the USACE project determination;
- Injurious to the public interest determination;
- Policy compliance certification;
- Certification of Legal Sufficiency from District Office of Counsel;
- Certification by the Chief of the District Real Estate Division that the real estate documentation is adequate;
- A description of any related, ongoing USACE studies (if applicable), including how the proposed alteration may impact those studies;
- Summary of any changes to the O&M manual;
- Summary of any changes to a project partnership agreement or local cooperation agreement (if any);
- Applicable environmental compliance documentation including but not limited to NEPA documentation, Endangered Species Act (ESA) documentation, and other necessary documentation;
- Finding of No Significant Impact (FONSI) or Record of Decision (ROD);
- Summary of the acceptance and use of funds pursuant to Section 214 if applicable; and
- Any additional final conclusions or information, including any associated controversial issues.
7-FD-u.9 to 7-FD-u.11 – Does the District Recommend Approval?
The District may recommend that the request be approved or denied. If the District determines that the request should be approved, then they will forward the Summary of Findings to the appropriate division office for review (“Division”). EC 1165-2-216, page 14. If the District determines that the request should be denied, then they will notify the developer of denial.
7-FD-u.12 – Conduct Review of Summary of Findings and Provide Comments
The Division must review the Summary of Findings and provide comments within 30 days. The Division reviews the Summary of Findings for the following:
- Policy compliance and legal sufficiency;
- Quality assurance and completeness;
- Identification of conflicts with ongoing studies; and
- Confirmation of the need for HQ review and decision.
7-FD-u.13 – Does the Division Recommend Approval?
The Division may recommend that the request be approved or denied.
7-FD-u.14 – Notify District of Decision to Deny the Request
If the Division determines that the request should be denied, then it will forward that decision to the District. The District is responsible for providing the developer with a written Notice of Denial. The Notice of Denial includes the reasons for denial. EC 1165-2-216, page 16.
7-FD-u.15 – Address Division Comments
The District is responsible for addressing Division comments on the Summary of Findings and decision. EC 1165-2-216, page 15.
7-FD-u.16 – Forward Summary of Findings and Recommendation
If the Division recommends approval, then it must forward an electronic copy of the Summary of Findings and the Division’s recommendation to the appropriate Headquarters Regional Integration Team (RIT). EC 1165-2-216, page 16.
7-FD-u.17 – Review Documents and Provide Comments
The RIT reviews the Summary of Findings and recommendation, and forward the information to the Office of Water Project Review for a policy compliance review. USACE Headquarters (HQ) reviews and provides comments within 30 days. EC 1165-2-216, page 16.
7-FD-u.18 – Address Comments
The District must address HQ comments or coordinate with the developer for comment resolution. EC 1165-2-216, page 16.
7-FD-u.19 – Does HQ Approve the Request?
HQ may approve or deny a request for 408 authorization.
7-FD-u.20 to 7-FD-u.21 – Notify District of Decision to Deny the Request
If the HQ determines that the request should be denied, then it will forward that decision to the District. The District is responsible for providing the developer with a written Notice of Denial. The Notice of Denial includes the reasons for denial. EC 1165-2-216, page 16.
7-FD-u.22 – Approval Document
If HQ determines that the request should be granted, then the District must develop a written Approval Document.
7-FD-u.23 to 7-FD-u.25 - Is the Developer Seeking to Obtain a FERC Hydropower License?
When the developer obtains a Section 408 permit, USACE will impose mandatory conditions on the FERC issued license under FPA Section 4(e) (see 16 U.S.C. § 797(e)). USACE will exercise its authority to approve the final design with regard to impact on navigation under FPA Section 4(e) (2011 MOU Section VII(A)(2)). In addition, USACE may submit recommendations under FPA Section 10(a) to ensure the project is constructed in the public interest and in conformance with its other responsibilities such as those to flood management control (33 CFR 221.1(g)).
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