Section 408 Permission to Alter Army Corps Works: Developments and Congressional Considerations

April 10, 2026

Section 408 Permission to Alter Army Corps Works:

Developments and Congressional Considerations

Congress has authorized the U.S. Army Corps of Engineers

(USACE) to undertake thousands of public (civil) works

projects across the United States. The Secretary of the

Army must grant permission before an entity other than

USACE proposes altering a USACE public “work.”

Pursuant to Section 14 of the Rivers and Harbors Act of

1899 (33 U.S.C. §408), as amended, the Secretary may

grant permission if the alteration “will not be injurious to

the public interest and will not impair the usefulness of such

work.” These permissions are known as Section 408

permissions. Alteration examples include a utility line or

pipeline crossing USACE-maintained navigable channels or

USACE-constructed levees, nonfederal installation of

hydropower at USACE dams, and nonfederal sand

placement affecting USACE coastal storm damage projects.

According to USACE, on average, the agency receives

1,200 Section 408 requests per year. Roughly 3% of

projects on the federal infrastructure permitting dashboard

reference a Section 408 permission.

potential beneficial and harmful impacts. Public interest

factors considered include effects on the economy, flood

hazards and erosion, navigation, wildlife and habitat,

historical sites, and recreation. USACE’s decision is a

federal action subject to NEPA environmental review

requirements and may also require compliance with other

federal statutes. Based on its review, the agency approves

or denies permission, and can attach permission conditions.

Figure 1. Illustrative Rendering of Proposed

Alterations at USACE Projects Requiring Section 408

Permissions

New National Environmental Policy Act of 1969 (NEPA;

42 U.S.C. §§4321 et seq.) procedures may, and a proposed

rulemaking and legislation if enacted could, adjust the

agency’s Section 408 review process. Congressional

deliberations may evaluate the consequences of changes not

only for the permission requesters but also the public that

benefits from the USACE project. Congress may weigh

whether to legislate on the Section 408 authority and

process in light of the rulemakings and/or in the context of

broader federal permitting process modification efforts.

Source: Illustration by Congressional Research Service.

Section 408 Review Process

Statutory Changes Since 2016

USACE has established a review process for Section 408

permissions that assesses whether or not a requester’s

alteration undermines the structural integrity or functional

performance of a USACE work, or harms the public

interest. USACE asks for the requester’s project description

(including construction techniques, materials, and

schedule). Given that a nonfederal sponsor of a USACE

project shares many project costs and responsibilities and,

in many cases, may not be the Section 408 requester,

USACE asks for a Statement of No Objection signed by the

nonfederal sponsor. For example, the illustration in Figure

1 could represent a proposed pipeline or cable that would

cross a USACE-built levee operated by a local levee

district. USACE also asks for maps and designs showing

how USACE works would be altered, and for structural,

hydrologic, hydraulic, and geotechnical analyses that the

agency determines may be needed for its review.

To arrive at a decision, USACE assesses whether a

proposed alteration complies with the agency’s technical

standards and requirements, and considers the alteration’s

Congress has amended the Section 408 authority. In 2018

(P.L. 115-270, §1165), to clarify the relevant USACE civil

works project assets, Congress added to 33 U.S.C. §408

that “‘work’ shall not include unimproved real estate owned

or operated by the Secretary as part of a water resources

development project if the Secretary determines that

modification of such real estate would not affect the

function and usefulness of the project.’’

Congress also has legislated on the Section 408 review

process. In 2016, Congress clarified requirements for

determinations of a complete Section 408 “application”

(which USACE typically refers to as a “request”) and

timing and coordination of NEPA reviews for Section 408

requests. P.L. 114-322 (§1156) specified that the Secretary

has 30 days to determine an application’s completeness,

and 90 days after a completeness determination for a final

decision. If there is no decision within 120 days, an

explanation to congressional authorizing committees is

required. In 2025, Congress amended the review process to

https://crsreports.congress.gov

Section 408 Permission to Alter Army Corps Works: Developments and Congressional Considerations

direct the establishment of “clear, concise, and specific

guidance to be used within” USACE and by requesters for

“standardizing the review process across Districts” (P.L.

118-272, §1105). It also required that USACE provide a

preapplication meeting if asked for by the requester.

Guidance Evolution and Rulemaking

Since 2006, USACE has altered its implementation of its

Section 408 authority multiple times. Prior to the mid2000s, the Section 408 permission authority was largely

managed by USACE districts primarily through real estate

instruments (e.g., easements). Since September 2018,

USACE follows internal guidance in Engineer Circular

(EC) 1165-2-220, Policy and Procedural Guidance for

Processing Requests to Alter US Army Corps of Engineers

Civil Works Projects Pursuant to 33 USC 408. In 2020,

USACE announced efforts to develop a rule for processing

requests, and in 2022 it held Section 408 listening sessions.

Rulemakings

Effort Toward a Section 408 Rule

In February 2026, the Assistant Secretary for the Army for

Civil Works (ASACW) directed USACE to promulgate

regulations for the procedures for Section 408 requests and

develop nationwide Section 408 categorical permissions.

USACE currently does not have national categorical

permissions for Section 408. Various USACE districts and

divisions, like the South Pacific Division, have developed

regional categorical permissions for alterations similar in

nature and with similar effects on a USACE work and the

environment. In P.L. 118-272 (§1244(c)), Congress directed

the Government Accountability Office to evaluate

USACE’s Section 408 program, including its permission

tracking website and ways to expedite the review process,

including through “categorical permissions or the

establishment of a single office” to review requests.

During the 119th Congress, lawmakers may assess whether

to alter the Section 408 authority (e.g., clarify the scope and

use of categorical permissions). Congress also might

evaluate its support for USACE proceeding with a rule or

less formal guidance (as raised by a waterway stakeholder

group). Congress could augment its direction on the Section

408 review process (e.g., clarify public comment

opportunities), and specify the materials provided to

prospective requesters (e.g., require the development of a

publicly accessible GIS database of USACE works, a

standardized Section 408 request form, or an appeal

process). Some but not all USACE districts, such as Fort

Worth District, maintain lists of USACE projects within

their boundaries and guides for permission request

submittals. Congress could also assess (1) USACE’s efforts

at monitoring and enforcement of its Section 408 authority;

(2) potential effects of establishing fees for cost recovery

and monetary penalties; and (3) whether to require regular

reporting to Congress on the request process (including

timeliness of decisions).

NEPA Rule for USACE’s Regulatory Program

A Section 408 permission may be one of a number of

authorizations from various federal agencies required for a

proposed project. For example, Congress has tasked

USACE with administering regulations (i.e., issuing

permits) related to protecting navigation (e.g., §10 of the

Rivers and Harbors Act of 1899 permits) and discharging

dredged or fill material into navigable waters (§404 of the

Clean Water Act permits). These regulatory responsibilities

are not tied to the presence of a USACE work, unlike the

Section 408 permission authority. On July 3, 2025, USACE

published an interim final rule (IFR) for NEPA procedures

for its regulatory program and Section 408 permissions (33

C.F.R. §333). The IFR went into immediate effect. Prior to

this, granting a Section 408 permission fell under NEPA

procedures for USACE civil works projects, not its

regulatory program.

Some stakeholders commenting on the IFR raised concerns

with USACE formally incorporating Section 408 NEPA

processes into the IFR as a binding rulemaking, whereas

others expressed support for integrating the NEPA

regulation of the agency’s regulatory program and Section

408 permissions. Others have raised concerns about the

IFR’s publication without public comment, and that the IFR

alters public comment opportunities for certain

environmental reviews. Congress may choose to not weigh

in on USACE implementation of the IFR and development

of a final rule. Alternatively, Congress could direct USACE

to maintain the Section 408 program within its civil works

project activities. Congress also could legislate on the

agency’s NEPA processes (e.g., require public comment).

Legislative Proposals

The 119th Congress is considering whether to alter federal

permitting processes through legislation, which, if enacted,

may alter administration of Section 408 permissions. For

example, the House-passed H.R. 4776, which according to

its sponsors is intended to shorten permitting timelines and

reduce the frequency of litigation, among other things,

would add deadlines for agency decisions. For example, it

would require a final agency action not later than 30 days

after a complete NEPA review. The current timing

requirements for USACE’s Section 408 decisions reference

a complete application (including the technical analyses)

rather than a complete NEPA review. For a discussion of

H.R. 4776, see CRS In Focus IF13180, H.R. 4776,

Standardizing Permitting and Expediting Economic

Development Act (SPEED Act), as Passed by the House.

Proposed bills in recent Congresses would have addressed

Section 408 permissions in the context of energy

infrastructure. For example, S. 879 (118th Congress) would

have required the Secretary of the Army to act on all

USACE authorizations (including Section 408 permissions)

within one year of receiving an application for natural gas

transmission pipelines. Other bills in the 118th Congress,

H.R. 6708/S. 3433, would have directed changes altering

the Section 408 review process for certain nonfederal and

federal dredging. A consideration for Congress is how

proposed legislation, if enacted, may affect USACE’s

reviews of a third party altering USACE works, in addition

to effects on federal permitting timelines.

Nicole T. Carter, Specialist in Natural Resources Policy

https://crsreports.congress.gov

IF13202

Section 408 Permission to Alter Army Corps Works: Developments and Congressional Considerations

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