PROPOSED REGIONAL CATEGORICAL PERMISSION PROGRAM FOR SECTION 408 REQUESTS   

AUTHORITY: 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 33 U.S.C. 408 (“Section 408”). Section 408 authorizes the Secretary of the Army, on the recommendation of the Chief of Engineers, to grant permission for the alteration or occupation or use 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. The Secretary of the Army’s authority under Section 408 has been delegated to the USACE, Chief of Engineers. The USACE Chief of Engineers has further delegated the authority to the USACE, Directorate of Civil Works, Division and District Commanders, and supervisory Division Chiefs depending upon the nature of the activity. 

INTRODUCTION: There are numerous USACE civil works projects within the boundaries of the Great Lakes and Ohio River Division (LRD). These projects have been federally authorized by the U.S. Congress and many are turned over to a nonfederal sponsor to operate and maintain. Projects may include flood risk reduction projects, ecosystem restoration projects, navigation projects, etc. Each year the Districts within LRD receive requests (in coordination with a non-federal sponsor, if applicable) from private, public, tribal, and other federal entities (requesters) to alter USACE federally authorized civil works projects (“USACE projects”) pursuant to Section 408.  When a District within LRD receives a request to alter a USACE project, the District follows a review process outlined by Engineering Circular (EC) 1165-2-220, Policy and Procedural Guidance for Processing Requests to Alter US Army Corps of Engineers Civil Works Project Pursuant to 33 USC 408 (Attachment 1). To simplify the review process, EC 1165-2-220 states that USACE districts or divisions can develop categorical permissions to cover potential alterations that are similar in nature and that have similar impacts.  Districts within LRD receive numerous Section 408 requests for minor alterations to USACE projects each year; approximately 120 requests were received in 2020, approximately 150 requests were received in 2021, and approximately 150 requests were received in 2022. The majority of these requests are for relatively minor alterations. Many of the project descriptions for proposed alterations are similar and the effects tend to be minor or negligible. However, the current review and approval process 2 is time intensive and can take months. The need for the proposed action is to increase efficiencies in the review process of Section 408 requests for minor alterations to USACE federal projects. 

ALTERNATIVES: The decision options are: 1) No Action Alternative: continue with the current process of reviewing and making decisions on Section 408 requests individually, as described in EC 1165-2-220, or 2) Preferred Alternative: approve a categorical permission to cover potential alterations that are similar in nature and have similar impacts. 

SCOPE OF THE DECISION: LRD’s area of responsibility covers a wide geographic area and includes all or portions of the following states: Alabama, Georgia, Illinois, Indiana, Kentucky, Maryland, Michigan, Minnesota, Mississippi, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin (See map in Attachment 2). The geographic scope of the decision to be made is limited to USACE federal projects within the following states in LRD’s boundaries: Illinois, Indiana, Kentucky, Michigan, New York, Ohio, Pennsylvania, Tennessee, West Virginia, and Wisconsin. The decision does not apply to civil works projects within the following states in LRD’s boundary — Alabama, Georgia, North Carolina, Maryland, Minnesota, Mississippi, and Virginia — or to any other USACE Division. The decision only applies to federally authorized levees, channel modification projects, ecosystem restoration projects, dredging projects, and navigation projects. The temporal scope of the decision to be made is for five years; after five years the decision would be reevaluated and may be renewed or revised, if appropriate. 

PROPOSED CATEGORICAL PERMISSION: The proposed categorical permission would encompass a list of potential alterations that are similar in nature and have similar and minor impacts. If an environmental assessment (EA) or environmental impact statement (EIS) is needed for the National Environmental Policy Act (NEPA) documentation of a proposed alteration, then the proposed categorical permission would not apply, and the current process described in EC 1165-2-220 would be used to evaluate the Section 408 request.  For the categorical permission to apply, a Section 408 request must incorporate standard mitigation measures and best management practices into the project plan. Projects would be required to minimize disturbance to surrounding vegetation, return disturbed areas to pre-project conditions, remove spoils, control storm water runoff and erosion, and not exceed federal de minimis levels of criteria air pollutants or precursors. 

The proposed categorical permission would encompass the following types of alterations. For each category of activities, the RCP lists specific descriptions of suitable activities for both levee and non-levee USACE projects, and the full text is available in Attachment 3. 

1. Utility Line Activities: This RCP category covers the installation, replacement, maintenance, or abandonment of utility lines, such as electric lines, 3 telecommunication lines, fiber optic cables, and lines for water, sewage, and other substances, excluding oil and natural gas pipelines. Other activities in this category includes overhead and underground pipes and cables and any related appurtenances such as headwalls, pipe slip-lining, corrosion and backflow prevention devices, outfalls, intakes, and fish screens.

2. Vertical Drilling Activities: This RCP category covers installation, development, maintenance, and abandonment of vertical features such as geophysical or geotechnical investigation borings, measurement devices (i.e., monitoring wells and piezometers), and foundation work (i.e., piles, caissons, drilled shafts, and footings).

3. Development Activities: This RCP category covers the construction and modification of development activities to include buildings (shelters, sheds, and outbuildings), appurtenances (dumpster and trash areas, decks, patios, storage containers and sites), decorative, recreational or aesthetic features (including signage/billboards, lighting, pools, ponds, fire pits, sculptures, fencing, cattle crossings, and retaining walls), access structures (including stairs, ramps, walkways, gangways, landings, and pads), landscaping activities (including trees, bushes, and other vegetation, soil grading, fill, and other structural geo-forming), stormwater control features (including catch basins, energy dissipation measures, rip rap, and other BMPs), and related temporary construction activities (including staging areas, borrow areas, stockpiles, and access roads), as described and subject to the conditions included in Attachment 3.

4. Linear Transportation Activities: This RCP category covers the construction, maintenance, modification, or removal of linear transportation projects such as roads and driveways (including crossings, culverts, ditches, canals, roadway markings, guard railings, ramps, noise barriers, shoulders, sidewalks), bridges (including pedestrian, recreational, vehicular, railroad), and recreational trails (including pedestrian, bicycle, and other off-road vehicles) within the USACE Section 408 geographic jurisdiction as defined in USACE EC 1165-2-220, paragraph 9(a).

5. Water-Based Activities: This RCP category covers the installation, maintenance, replacement, modification, and removal of activities incident to water-based development, such as access structures (including piers, docks, mooring buoys and dolphins, boat hoists, boat storage), protective structures (including dolphins, fenders, and piles), aids to navigation, removal of wrecks and obstructions, maintenance dredging to previously authorized depths or controlling depths for ingress/egress, whichever is less.

6. Operations, Maintenance, and Safety Improvements to Federal Projects: This RCP category covers any proposed alterations to improve operations, maintenance, or safety at a USACE Civil Works project.

7. Activities Meeting a USACE Categorical Exclusion from NEPA: Activities meeting the following USACE-promulgated categorical exclusions from the National Environmental Policy Act (NEPA): • 33 CFR 230.9(b): Activities at completed Corps projects which carry out the authorized project purposes;  4 • 33 CFR 230.9(c): Minor maintenance dredging using existing disposal sites; • 33 CFR 325 Appendix B Paragraph 6(a)(1): Fixed or floating small private piers, small docks, boat hoists and boathouses; • 33 CFR 325 Appendix B Paragraph 6(a)(2): Minor utility distribution and collection lines including irrigation; • 33 CFR 325 Appendix B Paragraph 6(a)(4): Boat launching ramps.

8. Ecosystem Enhancement Activities: This RCP category covers research, measurement, restoration, establishment, or enhancement of the environment with activities such as habitat improvement activities (green breakwaters, fish habitat structures, bird nesting features, floating gardens, and reestablishment of aquatic vegetation) and research and monitoring purposes (including wildlife tracking equipment and observation blinds).

9. Resolution of Enforcement Actions: This RCP category covers alterations of a USACE Civil Works project remaining in place that resulted from unauthorized activities and/or alterations resulting from activities undertaken for mitigation, restoration, or environmental benefit, in compliance with the conditions set forth in non-judicial settlements or judicial settlements. 

ENVIRONMENTAL IMPACTS OF PROPOSED ACTION:  LRD proposes to implement a categorical permission that, in accordance with EC 1165-2-220, would simplify the review process for Section 408 requests for certain categories of minor alterations to USACE projects within the geographical limits described in Attachment 3. LRD has prepared a programmatic EA in compliance with NEPA (Attachment 2). As the implementation of the categorical permission would not involve any on-the-ground work, there are no anticipated direct effects to environmental resources resulting from the programmatic decision at hand. Although the categorical permission would be for a variety of alteration types that individually could result in impacts to resources, it is important to note that the decision to be made on the categorical permission would not authorize any specific Section 408 requests or any on-the-ground work. If the proposed categorical permission is approved, future Section 408 requests would be individually reviewed to determine if they fit under the categorical permission.  Under the proposed categorical permission each individual Section 408 request would be evaluated on a case-by-case basis for compliance with all applicable environmental laws. Additionally, adequacy of the existing NEPA documentation (a programmatic EA for the categorical permission) would be verified for each individual Section 408 request. If the existing NEPA documentation is not adequate, a separate NEPA analysis would be conducted. Section 408 requests for alterations that are not described in the categorical permission (see descriptions above) or that do not adhere to the standard mitigation measures would be evaluated using the current review process for an individual request as described in EC 1165-2-220.  Although the decision on whether or not to implement the proposed categorical permission would not have direct impacts on resources, the types of alterations described under the proposed categorical permission have the potential to impact a 5 number of different resources. Resources that could potentially be affected by these types of alterations include aesthetics, air quality, cultural resources, fish and wildlife, floodplains, invasive species, noise, physiography/soils, recreation, threatened and endangered species, transportation/traffic, vegetation, water quality, and wetlands. It is expected that the effects associated with the types of alterations covered by the categorical permission described above would be minor or negligible. If a proposed alteration is determined to involve more than minor impacts or would not meet the parameters identified in the project description, the categorical permission would not apply and a categorical exclusion, EA or EIS would be prepared, as appropriate.  Under the proposed categorical permission, the Districts within LRD would continue to individually evaluate each Section 408 request on a case-by-case basis for potential effects to threatened and endangered species (and their designated critical habitat) listed under the federal Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq.) and, as appropriate, conduct consultation pursuant to Section 7 of the ESA with the U.S. Fish and Wildlife Service (USFWS).  Under the proposed categorical permission the Districts within LRD would continue to individually evaluate each Section 408 request on a case-by-case basis for the potential to affect cultural resources and, for any potential effects, conduct consultation with the appropriate State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) pursuant to Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended (54 U.S.C. 306108 et seq.). When a proposed alteration has the potential to affect cultural resources, the Districts within LRD would coordinate, and consult as appropriate, with potentially interested Native American tribes. 

PUBLIC INVOLVEMENT: The purpose of this notice is to solicit comments from the public; federal, state, and local agencies and officials; tribes; and other interested parties regarding the proposed Regional Section 408 Categorical Permission described herein as well as the associated programmatic EA. Comments received within 30 days of publication of this notice will be used in the evaluation of the potential impacts of the proposed action on important resources.  PUBLIC HEARING: Any person may request in writing, within the comment period specified in this notice, that a public hearing be held to gather additional input regarding this proposed categorical permission and programmatic EA. Requests for public hearing shall state with particularity the reasons for holding a public hearing. A request for a hearing may be denied if substantive reasons for holding a hearing are not provided or if there is otherwise no valid interest to be served. 

SUBMITTING COMMENTS: Written comments, referencing “Section 408 Categorical Permission” must be submitted to the email address listed below on or before August 4, 2023.   

Email: CELRD-408@usace.army.mil

To learn more and to access the attachments referenced, visit: https://www.lrd.usace.army.mil/Missions/Civil-Works/Section-408/Regional-Categorical-Permission-Program/