Agency or authority

Section 408

The authority to grant permission for temporary or permanent use, occupation, or alteration of any U.S. Army Corps of Engineers (USACE) Civil Works project is contained in Section 14 of the Rivers and Harbors Act of 1899, as amended, codified at Title 33 of the United States Code (USC) § 408 (“Section 408”).

Section 408 authorizes the Secretary of the Army, on the recommendation of the USACE Chief of Engineers, to grant permission for the use, occupation, or alteration of a USACE project if the Secretary determines that the activity will not be injurious to the public interest and will not impair the usefulness of the project.

There are numerous USACE federally authorized Civil Works projects (USACE projects) within the boundaries of the South Pacific Division (SPD). These projects have been federally authorized by the U.S. Congress and, for projects with a non-federal sponsor, then turned over to a non-federal sponsor to operate and maintain.

Each year the districts within the SPD receive requests through the non-federal sponsors from private, public, tribal, and other federal entities (requesters) to alter USACE projects pursuant to Section 408. If a proposed alteration is considered normal operations and maintenance, as described in the operations and maintenance manual for the USACE federal project, no Section 408 permission is necessary.

What this permitting pathway provides

The purpose of the RCP is to expedite and streamline qualifying reviews under this RCP by eliminating the need for alteration-specific public notices and review plans, and by programmatically making certain findings under NEPA.

Consultation under Section 106 of the National Historical Preservation Act and Section 7 of the Endangered Species Act (ESA) continue to be required for all 408 Permissions.

Consider using a Programmatic Biological Opinion (PBO) from USFWS or NMFS for Section 7 of the ESA if your project is eligible.

Eligibility

For an alteration to be approved under this RCP, the proposed project must align with the predefined alteration descriptions (see “List of Alterations”), have no disqualifying circumstances (see “Disqualifying Circumstances”), and comply with standard engineering and environmental conditions as applicable (see “Conditions”) starting on page 22 of the RCP.

Applicable locations

USACE South Pacific Division (SPD), which includes all of California, and includes the Klamath River watershed in Oregon.

Permit documents

Expires on

March 2030. RCPs apply for 5 years after being approved. After 5 years, the RCP may be renewed or revised, as appropriate. Nothing precludes the Army Corps from reevaluation sooner than 5 years if conditions warrant.

How to apply

The process for reviewing individual alteration requests, as stated on page 28 of the RCP:
1) Alteration Request:
a) The requester must provide justification for the RCP.
b) The USACE district will review and verify the alteration is covered under the RCP and identify additional information required to process the request.
c) The USACE district will notify non-federal sponsors if an application from a private developer or other entity is received for a project managed by a non-federal sponsor. A signed statement of no objection is required from the non-federal sponsor.

2) Technical and Environmental Reviews:
a) The USACE district will complete all necessary and applicable reviews.
b) This includes initiating any required consultations.

3) Validation
a) The 408 Coordinator will complete the Section 408 Validation of Categorical Permission Memorandum, including supporting technical review memoranda as needed.
b) If approved, the decision-making authority will sign the Section 408 Validation Memorandum and the Decision Letter for the individual alteration request.
c) Requirements resulting from Section 7 of the Endangered Species Act, Essential Fish Habitat or National Historic Preservation Act consultations, or other consultations required under applicable federal law, will be included to the validation of this categorical permission.

May be used with:

Activities covered

A proposed project may combine multiple categories of alterations based on the project description and still be eligible. Within the overall project, each individual alteration type must adhere to the size limitations for that specific type and the project’s total area must not exceed the size limit of the largest alteration.

The RCP includes 26 types of alterations.

9. Environmental Restoration

The RCP covers a variety of restoration activities, including placement of spawning gravels in active stream channels and adjacent floodways, planting of native vegetation (forbs, grasses, shrubs, or trees), and restoration and enhancement of ponds, stream channels, and wetlands. Stream and wetland restoration activities may include installation, modification, or replacement of small, non-federal water control structures (e.g., dikes and berms); modification of stream beds or banks; and other activities. Any plantings on or near a levee must meet the standards outlined in Engineer Technical Letter 1110-2-583, Guidelines for Landscape Planting and Vegetation Management at Levees, Floodwalls, Embankment Dams, and Appurtenant Structures. The total area must not exceed 500 acres for non-channel restoration activities or 5,000 linear feet for channel restoration activities.

Exclusions

DISQUALIFYING CIRCUMSTANCES

Use of this RCP is disqualified by any of the following conditions:

  • The alteration could not be decided at the USACE district level.
  • The alteration is controversial or known to have considerable public or tribal interest.
  • The alteration would result in a direct or indirect cause for jeopardy to a species that is listed or proposed for listing.
  • The alteration would result in a loss of sensitive habitat or a net loss in riparian habitat.
  • The alteration would exceed federal de minimis air quality standards.
  • The alteration would construct a new structure for human inhabitation.
  • The alteration would adversely impact a public use facility.
  • The alteration proposes development in the floodplain.

Projects must also comply with standard engineering and environmental conditions as applicable (see “Conditions”) starting on page 22 of the RCP.

Application Tips and Resources

Requesters are encouraged to engage in pre-application meetings with their USACE District, non-federal sponsors, and any other stakeholders that may have an interest in the proposed alteration. All Section 408 RCPs require a statement of no objection and review by the non-federal sponsor prior to submitting the request to USACE.

Section 408 Program page for the Sacramento District

Section 408 Permitting Information from the Los Angeles District

USACE has produced the following guidance documents about Section 408: