U.S. Army Corps of Engineers Issues Draft Engineer Circular on Requests to Alter Corps Civil Works Under Section 408

On February 5, 2018, the U.S. Army Corps of Engineers (“Corps”) published notice that it had issued a draft of Engineer Circular (“EC”) 1165-2-220 (the “Draft EC”), which provides guidance on how the Corps will process requests to alter Corps Civil Works projects pursuant to Section 14 of the Rivers and Harbors Act of 1899, as amended and codified in 33 U.S.C. § 408 (“Section 408”). The Draft EC proposes numerous changes to the Section 408 review and authorization process. Given that Section 408 review can be a significant hurdle for project proponents seeking Corps Regulatory permits for activities in waters of the United States, proponents should be aware of, and potentially comment on, these proposed changes. Comments on the Draft EC are due on April 6, 2018.

Background

Pursuant to Section 408, the Corps can authorize activities that alter or improve Civil Works projects, such as dams, levees, dikes, piers, navigation channels, and wetland restoration projects funded or built by the Corps. Entities may request Section 408 approval for a variety of reasons including for the construction of roads, pipelines or transmission lines, management of flood risk, or to increase recreational activities in a manner that impacts a Civil Works project. The Corps’ Section 408 review authority also extends to the issuance and renewal of Corps regulatory permits under Section 404 of the Clean Water Act (“Section 404 permits”) and Section 10 of the Rivers and Harbors Act (“Section 10 permits”). In fact, this pre-requisite also applies to renewal of extension requests—the Corps will not extend a permit pending renewal while the Section 408 review process plays out. Consequently, before an alteration can occur or a Section 404 or Section 10 permit can be issued, the Corps must evaluate the proposed activity to ensure that it “will not be injurious to the public interest” nor “impair the usefulness of” any Civil Works projects.

In 2014, the Corps issued its first comprehensive guidance, EC 1165-2-216, outlining how it evaluates proposed alterations and improvements under Section 408. Subsequently, the Corps clarified its Section 408 permitting process through interim guidance issued from 2016 to 2018. When finalized, the Draft EC will supersede Engineer Circular 1165-2-216 and these various interim guidance documents.

Prior to the issuance of EC 1165-2-216, and except for proposed in-water projects that would directly impact Civil Works projects, Section 408 review occurred behind the scenes, more or less a box that a Regulatory Project Manager would check before issuing a Section 404 or Section 10 permit. EC 1165-2-216 changed that paradigm. After the issuance of the EC, the Section 408 review process became more rigorous and time-consuming, requiring in many situations detailed data submittals and National Environmental Policy Act review. All of this is in the context of Corps District offices that in large part were unprepared for the issuance of EC 1165-2-216 and thereby lacked the staffing resources to timely complete the review process.

Moreover, while creating a more time-consuming, detailed review process, EC 1165-2-216 did little to clarify just when and how the review process is applied and the criteria to be satisfied to obtain approval. For example, the geographic scope of the review is vague, thus leaving much to the discretion of Corps staff. In addition, EC 1165-2-216 provided the Corps with practically unfettered discretion to determine which factors were relevant, and the weight afforded to each factor, when determining whether a proposed activity would be “injurious to the public interest,” or would “impair the usefulness of” a Civil Works project.

Notable Changes Proposed in the Draft EC

The Draft EC proposes a number of changes to the Corps’ Section 408 review process. Notably, the Draft EC revises the criteria the Corps will use to determine if Section 408 review and approval is required. Specifically, the proposed revisions clarify the geographical limits for when the procedures set forth in the EC apply. The Draft EC, however, provides little additional guidance as to how the Corps will determine if a proposed activity will be “injurious to the public interest” or will “impair the usefulness of” a Civil Works project.

The Draft EC also proposes numerous changes to the Section 408 authorization process. The Corps provided additional details regarding categorical permissions in the Draft EC. Also, Regulatory permit applicants will have the option of engaging in a multi-phased Section 408 review process. The Draft EC eliminates the requirement that plans and specifications be, at a minimum, 60% complete to initiate the Section 408 review process. In addition, the Corps has proposed to improve the efficiency, transparency, and consistency of its Section 408 review and approval process by creating a public tracking database, and engaging in an annual audit of its permitting decisions. Finally, the Draft EC sets forth a new 90-day timeline for the Corps to review complete applications.

More information about the Section 408 permitting process and the Draft EC are available here. Instructions for submitting comments on the Draft EC are available on the Federal eRulemaking Portal.