On October 15, the Great Lakes Dredging Team hosted a webinar on “Working with the U.S. Army Corps of Engineers on Sec. 408 projects.” The Corps Section 408 policy, starting September 10, 2018, established the process and criteria the Corps uses to review requests to alter Corps Civil Works projects, including those involved in dredging and dredged material management.
Natalie Mills and Colin Smalley from the Corps Chicago District discussed how Corps Great Lakes districts are implementing the September 2018 Section 408 policy for work in Corps projects, such as work in harbors and navigation channels, particularly when a Corps regulatory permit is already required. Their presentations also provided background on the Corps review process and how the Corps is working to review these requests to increase efficiency in permitting.
Mills is a project manager and coordinator for the Chicago District Section 408 program. She began with an overview of the Section 408 program, its authorities, benefits and requirements. First and foremost, for the Corps to grant permission to alter a federal project, it cannot impair the usefulness of the project. One of the biggest benefits of Section 408 is changes can be made to a project without going back to Congress. A technical team can ensure Civil Works projects continue to be delivered as intended, with no negative impacts, but it also allows for improvements based on new technology or changes in infrastructure.
Any entity external to the Corps, who wants to alter a Corps Civil Works project can request a Section 408 permission, including other federal agencies, private companies or individuals, local government, tribes or project sponsors.
Mills also described the basic requirements and what the Corps needs for a complete Section 408 request. To ensure the project sponsor is aware of the Section 408 request and does not object, the application needs a Statement of No Objection. The technical analysis and design detail must meet Corps standards. Specific technical reviews may be required. Environmental compliance is required, and NEPA documentation or an environmental assessment or final environmental impact statement must be drafted in order for the Section 408 request to be complete.
Once all the basic requirements have been satisfied, the Section 408 request is considered complete and a 90-day timeline for review and decision-making begins.
“Once the package is complete, that starts the 90-day timeline to approve the package. During this time, if we have questions or need additional information, your package is considered incomplete and a new timeline will start once we receive another complete package,” Mills said.
As a new part of the process, Mills said all Section 408 requests now require a public notice. “In Chicago, we let regulatory take the lead, but you’ll need to work with your district,” Mills said. The Corps review process must follow a review plan and will summarize the rationale and determinations regarding whether the alternation would cause any public harm or impact the usefulness of the project.
The timelines reflect the requirements identified in Section 1156 of the Water Resources Development Act of 2016. Some changes have been made since then – the purpose of which is to emphasize timely review and responsiveness to the requesters. A Completeness Determination will be issued within 30 days for any Section 408 request. The review and decision process happens in 90 days after the completeness determination. The Corps will provide written notification if the 90 days deadline can’t be met, and the dates will be tracked in the Section 408 database. The majority of decisions on Section 408 requests are decided at the district level. In some cases, the district commanders can delegate decision to a district division chief.
Regulatory Action: When is it Required?
Colin Smalley, regulatory program manager, Corps Chicago District, also outlined when a regulatory action might be required, under two different authorities in the Great Lakes – Section 10 of Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. Permits are required for certain actions in navigable waters of the United States and waters of the United States.
Section 404 waters are defined differently in different states, but all definitions include the Great Lakes and its tributaries. “Section 10 waters are listed by the Corps districts. Those lists are on the Crops website by district,” Smalley said.
For regulatory permits, Smalley outlined the three different types: individual permits, which involve the highest level of project specific analysis; letters of permission for minor or non-controversial projects; and general permits, which must fit a specific class of activities.
“There are nationwide permits that address dredging activities,” Smalley said. He also said individual Corps districts can identify which project might qualify for a letter of permission.
Revamping the regulatory process to ensure more timely projects requires the Corps to synchronize the Section 408 process and regulatory authorization.
“We were directed, by Corps headquarters, to do a few things: there’s the concept of One Door to the Corps. The concept is what you would expect. As an applicant, you can reach out to one person or office and expect all these authorities to be considered, and the process will be undertaken based on that one contact. You won’t be required to coordinate these Corps reviews with different offices at different times. And you will receive one document through that same contact,” Smalley said. He said the Corps is expected to do some consolidated reviews and needs to coordinate internally, so as not to overlap on reviews.
Each district was also directed to develop a standard operating procedure, to ensure the One Door policy. In the Great Lakes for a dredging project, Smalley said to contact the regulatory district to start the process, and it will interface with the Section 408 district. “If there’s a different point of contact, we will let you know. We hope to simplify that complexity for you,” Smalley said.
To track and follow up on authorizations, two databases track both regulatory permits and Section 408 permissions. Both databases can be found here. Smalley said the best source is the respective Corps districts, but the database is a good place to start.