Section 408 Applicability

General.  The sole authority to grant permission for temporary or permanent alterations is contained in Section 14 of the Rivers and Harbors Act of 1899 and codified in 33 USC 408 (Section 408).  Approval for any modifications, alterations, or occupation of public works projects is granted through the District’s Section 408 program.  The District Engineer has the authority to approve most relatively minor, low impact alterations/modifications to the public works facilities however, some requests which involve significant modifications, raisings, realignments, etc. may need to be approved at Corps Headquarters.

Applications for modifications to completed projects can be submitted from a number of sources.  Most federally-constructed public works projects are turned over to a Non-Federal project sponsor for operation and maintenance.  Anyone wishing to modify one of these facilities should first contact the Non-Federal Sponsor and work with them to prepare the permission application for submission to the Corps for review and approval.  Once the Corps approves the modification / alteration, a permission will be issued to that Non-Federal Sponsor, who in turn would issue their own permit to the Applicant.

Applications for permission to perform new construction affecting flood-control reservoirs and channels for which the Federal Government holds rights-of-way and Operations and Maintenance responsibility, are referred directly to the Corps of Engineers.  The permission would then be issued directly to the Applicant.

• Section 408 & You – an overview of Section 408 and the process of seeking a permission.
• Seven Questions for Section 408 Success – a short guide with questions for permission seekers to consider as they begin their request to the program.
• Section 408 Pre-Application Meeting Guide – a one-page guide designed to help permission seekers get the most out of a pre-application meeting with their Section 408 coordinator.
• Section 408 Process Guide – an in-depth guide to the program and the process of seeking permission to alter a Civil Works project from start to finish.

Section 408 Permissions.  This site describes the process for review and approval of all requests to modify, alter, or occupy any existing U.S. Army Corps of Engineers (USACE)-constructed public works project.  Public works projects include dams, basins, levees, channels, navigational channels, and any other local flood protection works constructed by the USACE.  In order for the USACE Los Angeles District (SPL) to approve any proposed alteration request, it must meet applicable standards and it must not be injurious to the public interest or affect the USACE project’s ability to meet its authorized purpose. Based on years of Section 408 team practice, the following steps were created to ensure a Section 408 review is completed within most effective time frame.
 

Steps to Obtain a Section 408 Permission

Step 1: Permission Inquiry:  

Requester shall reach out with the project scope, sketches, maps, plans, etc. (with flood control easements clearly shown) to determine if a Section 408 or other USACE Regulatory permit is applicable for the proposed project. To submit an inquiry, please visit https://www.spl.usace.army.mil/Missions/Permitting/

Fill out the Permitting Inquiries Checklist and email to: SPLPermitInquiries@usace.army.mil

The Requester will be notified by email if a Section 408 permission is needed. Note, a proposed project may also require a Regulatory permit. The determinations would be conducted concurrently.

Step 2: Pre-Application Meeting:

The Requester should review EC 1165-2-220  prior to requesting a pre-application meeting. This document provides a clear idea about Section 408 permission’s policies and procedural guidance that the USACE follows. After completing a review of EC-1165-2-220, please send a meeting request to: spl.408permits@usace.army.mil. Within the email meeting request, at a minimum please provide:

1. Exhibit with flood control easement lines that clearly identify the project scope within the flood control easement and project scope outside the flood control easement.
2. Project Description
3. Project Schedule (i. construction start date and ii. construction duration)
4. Proposed Meeting Agenda
5. Permit Inquiries Determination (from Step 1) for Clean Water Act Section 401 & 10/404 Permit Requirements

During the meeting, the Requester will provide a detailed project scope including the flood control easement, overall project scope, constraints, and other pertinent information. Based upon the Requester’s input, the SPL Section 408 Team will explain Section 408 process, determine potential technical (Geotech, Hydrology & Hydraulics, Structural calculation), environmental /NEPA (Cultural Resource Report, BA, EA, and others), and real estate documentation requirements for the 408 submittal package.

Step 3: Pre-Submittal Meeting:

Upon completion of the Section 408 permission package reviewed by the Requester (County, City, Non-Federal Sponsor), the Requester (not 3rd party) shall send a pre-submittal meeting request to:  spl.408permits@usace.army.mil . During the pre-submittal meeting, the SPL Section 408 team shall review the Section 408 package online via WebEx to verify that the Section 408 submittal package meets the MINIMUM requirement to issue a National Database permission number.  (Please see Application & checklists section on this Website).

1. An application – signed by the Executive duly authorized to bind the agency.  
2. No objection Letter (if applicable) – signed by the Applicant.  
3. Checklists – Completed checklists with required plans, calculations, reports, deed, and any other documents to support proposed alteration.
4. Cultural Resource report (For template see Resources section of this Website)  
5. Draft copy of Section 401 & 404 permit applications

If the Section 408 team determines that the package is acceptable, then a DOD SAFE link will be provided to the requester to upload the complete Section 408 packages.

Step 4: Application Completeness Determination:

The Requester is responsible for ensuring a proposed alteration meets current USACE design and construction standards. SPL will work closely with the requester to determine the applicable USACE standards and the specific level of detail necessary for USACE to make a decision for a particular alteration request.

This process may involve the Requester providing information to SPL in one or more submittals in order to satisfy all the basic requirements of a complete Section 408 request as indicated in paragraph 11 of EC 1165-2-220.  When a Requester submits information to a district office, districts are expected to provide a written completeness determination within 30 days of receipt.  If the district determines a submittal is not complete, the district will provide the requester a written notification within 30 days of receipt, providing a description of what information is required in order for the submittal to be complete.  The 30-day timeline for a completeness determination is then restarted upon any subsequent submittal of information.  Once a submittal is determined complete, the 90-day Evaluation and Decision step is initiated.

Step 5: Application Evaluation & Decision Step:

Once sufficient information is provided, it is the responsibility of the Corps’ Section 408 Coordinator supported by the Team technical staff (Civil Design, Hydrology & Hydraulics, Geotech, Geology, Structural, Reservoir regulation, Dam & Levee Safety, Operations, Construction), NEPA compliance staff (Archeologist, Biologist, Environmental coordinator), Real Estate staff (RE officer, Surveyor and RE Clerk) to evaluate the proposed alteration.  The proposal will be evaluated for impacts to flood conveyance, structural integrity, operation and maintenance, NEPA requirements, and flood fighting capabilities as well as meeting Corps policy and criteria. 

Step 6: Final Decision:

Upon Completion of the evaluation process, a Summary of Finding, Permission Instrument, NEPA compliance documents, Certification by the District Chief of Real Estate Division, and Certificate of Legal sufficiency By Office of Counsel will be prepared. A complete package will be submitted to the Section 408 Decision maker to approve or deny the 408 requests. A decision will be issued within 90 days following the conclusion of completeness determination (Step 4).

Step 7: Post‐Permission Oversight:  

Construction shall begin 24 months of an approved section 408 Permission. Once the District approves the proposed alterations and issues the 408 Permission, the permittee is then responsible for the Post‐Permission oversight, which includes the following;

(a) Construction oversight.  The Section 408 permittee shall oversee the conduct of the work and ensure construction is in accordance with the issued Section 408 permit and the approved plans and specifications.

(b) As‐builts.  Drawings showing alterations as finally constructed will be furnished by the Section 408 permittee to the district after completion of the work.  As‐builts must be provided within 180 days of construction completion.

(c) Operations and Maintenance (O&M) Manual Updates.  The Section 408 permittee and/or non‐federal sponsor is required to provide an update/supplemental appendix for the O&M manual.  At a minimum, the update should include a description of the new features, reference to the Section 408 approvals, as‐builts, and instructions regarding O&M of any new features not included in the existing manual.  

(d) Post Construction Closeout.  Upon construction completion, the Requester shall notify the USACE in writing that all construction is complete.  The Requester shall also provide electronic copies of the as‐built plans to the USACE, as well as any of the other required documents as required by the Section 408 approval.

How to Submit Files with your Application

Upon completion of a Section 408 permission package review, the package should be submitted online through Department of Defense (DoD) Secure Access File Exchange (SAFE), a web-based file transfer service.  

In order for the Requester to access DoD SAFE to create a drop-off, they must first receive a drop-off request by emailing spl.408permits@usace.army.mil. Permit applicants will then receive email instructions and a code. Each code will correspond to a single drop-off. Please specify in the request how many codes will be needed to complete the drop-off. Each drop-off request is valid for 14 days. Permit applicants can send up to 25 files per package, up to 8 GB. Files greater than 8 GB can be compressed (zip, 7z, tar.gz, etc.) to reduce the size of the file. It is suggested that the permit applicant compress each of the 5 folders separately (a-General, b-Technical, c-O&M, d-RE, e-Environmental). Please make sure to notify the 408 permit coordinator after any drop-offs have been made as they will have 7 days to access the files.

For more information regarding SAFE, visit https://public.cyber.mil/dcs