Title 33 USC 408 authorizes the Secretary of the Army to permit others to alter and modify an existing Corps project in certain circumstances. Within the U.S. Army Corps of Engineers, the authority to approve Section 408 permissions has been delegated to the director of civil works at Corps of Engineers' headquarters. Approval for minor or routine alterations may be delegated to district engineers within the Corps. The Corps may grant permission for the alteration or permanent occupation or use of any of its public works when in its judgment such occupation or use will not be injurious to the public interest and will not impair the usefulness of the Federal works.
The provisions of Section 408 apply to works that were built by the Corps and are locally maintained, such as local flood risk management projects, or projects operated and maintained by the Corps such as locks and dams. Proposals submitted for Section 408 review and approval undergo a rigorous engineering, policy and environmental review by the Corps and, if required, independent external peer review. As a Federal action, the environmental review must meet the requirements of the National Environmental Policy Act.
Examples of modifications that might be proposed at a Corps lock or dam are hydropower generating facilities and fish management structures. Examples of modifications proposed at local flood risk management project are significant levee or floodwall alterations to address levee accreditation or changes in flood elevations. Nationwide efforts by the Federal Emergency Management Agency directed at map modernization of its floodplain designations have resulted in an increase in the number of requests for Section 408 review by non-Federal sponsors for many older flood risk management projects.
Engineering Circular 1165-2-216 provides the policy and procedural guidance for processing requests under Section 408.
Ongoing or pending Section 408 reviews for significant alterations:
• Redpath Project at Mustinka River, Minnesota. Coordination is ongoing with the Bois de Sioux Watershed District on a proposed retention project.
• City of Halstad, Minnesota. The community intends to make improvements to the levee system for FEMA accreditation.
• * Wild Rice and Marsh River at Ada, Minnesota. The 408 review at Ada requires realigning the Federal project channel on the Wild Rice River.
• *Souris River Basin between Burlington and the downstream end of Minot, North Dakota. Coordination is ongoing for a local flood risk management project that will alter the existing federally authorized project.
*Local funding provided under a Section 214 agreement
Title 33 USC 408 of the Rivers and Harbors Act of 1899, as amended.
Section 214 allows for local sponsors to provide funding to expedite Corps of Engineers' review of Section 408 alterations.