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I'm Planning a Project that Crosses a Levee. Will I Need a 408 Permit?

Owners or engineers who have a project that is near, approaching or crossing a levee often ask, “Do I need a 408 permit?”

What Is the Section 408 Permit?

The Section 408 permit is a requirement for altering a U.S. Army Corps of Engineers (USACE) civil works project. We all generate questions and concerns when we encounter a structure that may be owned or regulated by USACE. The engineering and construction industry often associates Section 408 permits with levees, because this section of the United States Code was brought to the forefront after Hurricane Katrina. The Rivers and Harbor Act of 1899 authorized water resource policies and authorities, and Section 408 comes under this authorization. The policy and procedural guidance for processing requests to alter USACE civil works projects pursuant to Section 408 applies to any “Federal Project” associated with water resources. The terms “alter” or “alteration” refer to any action by any entity other than the USACE that builds upon, alters, improves, moves, occupies or otherwise affects the usefulness or the structural/ecological integrity. Alterations also include actions approved as “encroachments” pursuant to 33 CFR 208.10.

Do I Need a 408 Permit?

The question arises: If my project encounters or crosses a levee, are we required to obtain a USACE Section 408 permit? If the levee is a federal project, a 408 permit may be required. A civil works project (levee in our discussion) constructed by the USACE and then transferred to a local sponsor for operation and maintenance is a federal project. However, not all activities associated with a federal levee, such as maintenance, require a 408 permit. The local levee sponsor or responsible party should be able to tell you whether the USACE, in addition to the levee owner or sponsor, has jurisdiction over a particular levee system. If you are unable to locate or determine who the local levee sponsor is, contact the USACE district office where the levee is located.

What About Certain Programs?

If a levee was constructed by a local entity but participates in the Public Law 84-99 program administered by the USACE that provides reimbursement for specific damages to levees that result from high-water events, that levee is not a USACE civil works project and would not be required to obtain a Section 408 permit for specific alterations. However, construction projects impacting or encroaching on the levee may require a permit issued by the levee sponsor, who then communicates the anticipated alteration to USACE in accordance with 84-99 guidelines.

We Can Help

Communication with the local levee sponsor and with the USACE can help you determine whether USACE will be involved with your project, or whether the local sponsor has specific requirements for your project. If your project will not alter a USACE Civil Works Project, that determination may be made quickly and easily. Section 408 regulations can be found by doing a web search for 33 USC 408.

Lastly, Freese and Nichols is here to help you navigate the USACE requirements and meet design needs, if required. Contact Mike Shiflett at mms@freese.com, Michael Votaw at mpv@freese.com or Kalli Clark-Egan at kalli.clark-egan@freese.com if you have questions.

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