3 Background33 USC 408Provides the Secretary of the Army authority to grant permission to alter a USACE civil works project ifDoes not impair usefulness of the projectNot injurious to the public interest
4 PurposeImprove consistency in the way USACE considers, processes, and documents decisions for requests for alterations to Civil Works projects.Create a process that is applicable to all types of Civil Works projects.Be transparent on what information is required.Create a process that can be tailored by districts to the appropriate scope, scale, and complexity of a proposed alteration.
5 What does this EC apply to? All USACE Civil Works projectsAlterations within real estate interests of the USACE projectActions that build upon, alter, improve, move, occupy, or otherwise could affect the USACE project
6 What does this EC not apply to? Routine operations and maintenance activitiesShoreline Management and Master Planning ProgramsCertain Real Estate Outgrants
7 Basic Layout of the EC The main EC applies to all Section 408 requests The appendices provide supplemental guidance -Dams and Reservoirs (including Navigation Dams)Non-Federal Hydropower DevelopmentLevee, Floodwall or Flood Risk Management Channel ProjectsNavigation Channels, Harbors, Locks, Jetties, Bridges, and FeaturesAccepting funds through Section 214System Performance Analysis
8 Terminology No more “minor” versus “major” Permission (instead of permit)Alteration (instead of modification or encroachment)Requester (instead of applicant)H&H System Performance Analysis (instead of H&H Risk Analysis)Categorical Permission (similar to General Permit)
10 Basic Steps Step 1: Pre-Coordination Step 2: Written Request Step 3: Required DocumentationStep 4: District Agency Technical ReviewStep 5: Summary of FindingsStep 6: Division Review, if requiredStep 7: HQ Review, if requiredStep 8: NotificationStep 9: Post-Permission Oversight
11 Key PointsProcess is intended to be scalable, based on the scope and scale of the proposed alterationProcess is district ledCreated some ways to streamline the processCoordination throughout the process is encouraged
12 Team Members Non-federal sponsor Appropriate Regional Integration Team Applicant, if not the non-federal sponsorDistrict Section 408 CoordinatorTo ensure coordination across business linesTo provide requestors with one point of contactAppropriate Regional Integration Team
14 Sharing of Sensitive Information Information that could pose a security riskCoordination with the district operational security officeLimit information to information necessary for the proposed alterationRequesters will have limitations on sharing sensitive information providedUSACE will not release information provided to us by other agenciesInformation can be withheld
15 Real Estate Outgrants Lead is the Real Estate Contracting Officer Can follow processes for recreational and nonrecreational outgrantsReal Estate must ensure technical requirements in appendices of the EC are metReal Estate must check if HQ review and decision is need based on decision questions in EC. If HQ review is required, then considered a Section 408 and Director of CW approval will be requiredOutgrants not covered by Real Estate guidance is a Section 408
16 Role of the Non-federal Sponsor Because non-federal sponsors are cost-share partners and/or have O&M responsibilities –Section 408 requests must come from or have written concurrence of the non-federal sponsorIf there are multiple sponsors, each sponsor must provide concurrenceWritten acknowledgment and acceptance of any new O&M requirementsReminder that 33 CFR focuses on sponsors’ responsibilities. Decision to issue a Section 408 permission is a USACE responsibility. Processes for both can work together, but one does not replace the other.
17 Environmental Compliance A Section 408 decision is a federal action and NEPA and other environmental compliance is required.Scope of analysis limited to the federal project areas that would be directly or indirectly affected by proposed alteration.NEPA documentation – the requester’s proposal will be identified as the “requester’s preferred alternative.”Alternatives analysis is limited to 1) no action and 2) requester’s preferred alternative.
18 Environmental Compliance Categorical exclusions may applyLeverage existing NEPA documentationEAs will not be circulated without Division approvalEISs do not have to come up to HQ before released for public review
19 Coordination with Regulatory When a Section 408 request also requires a Section 10/404/103 decision, close coordination is requiredSection 10/404/103 decisions are separate decisions and require separate decision documentationLeverage information between the two processesNote, “injurious to the public interest” for Section 408 is not the same as “contrary to the public interest” for Section 10/404/103Section 408 decision must be made before the Section 10/404/103 decision is issued
20 Review RequirementsSection 408 review requirements are not covered in detail in Engineer Circular (review policy)Type I Independent External Peer Reviews (IEPRs) are not requiredReview requirements are determined by the district based on the scope and scale of the alterationThe requester is responsible to develop a review plan for Type II IEPRs and quality control as determined by the districtThe district is responsible to develop a review plan to cover the district’s review of the Section 408 request
21 District Review PlansCover district-led Agency Technical Review (ATR) of the Section 408 requestsATR will make three determinations –Impair the usefulness of the USACE projectInjurious to the public interestLegal and policy compliance
22 Decision LevelDelegation of authority: From ASACW to Chief of Engineers to DCWThe Division can create a regional processDCW has delegated certain Section 408 requests to the District CommandersThe required documentation is based on the alteration and should be the same regardless of decision level
23 Division/HQ ReviewQuestions in which the answer "yes" would require a Division/HQUSACE review and decisionType II IEPR?EIS?Change how authorized purpose is met?Impact study alternatives?Crediting being sought?Installation of hydropower facilities?Is ASACW approval needed under Section 204(f)?Only complete “Summary of Findings” should be submitted to Division then to HQThe Division Commander has the ability to deny the request prior to reaching HQ
24 Categorical Permission New Concept Similar to a General Permit for the Regulatory ProgramCover alterations similar in nature with similar impactsProvide public notice of the potential activitiesCreate a validation process
25 WRRDA 2014Section 1006: Policy for accepting funds under Section 214 of WRDA 2000 will be updatedSection 1007:Post process for public comment within one yearEstablish specific timelinesCreate a public database for trackingSection 1008: Provision for expedited hydropower projects
26 BottomlineProcess in the EC is not perfect, but good first step in consolidating policiesRecommendations notedTemplatesFlowcharts
27 Submit internal and external feedback on USACE Civil Works webpage at