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Where a party other than the US Army Corps of Engineers (Corps) seeks to use or alter a Civil Works project that the Corps constructed, the proposed use or alteration is subject to the prior approval of the Corps. Some examples of such alterations by a party other than the Corps include an improvement to the project; relocation of part of the project; the introduction of hydropower generation at a Corps dam; and installing utilities or other non-project features. This requirement was established in section 14 of the Rivers and Harbors Act of 1899 and is codified at 33 U.S.C. 408 (section 408). Section 408 provides that the Corps may grant permission for another party to alter a Civil Works project upon a determination that the alteration proposed will not be injurious to the public interest and will not impair the usefulness of the Civil Works project. The Corps is proposing to replace its current guidance with a regulation.  T he program is now covered by Corps policy, last issued in September 2018 (Corps' Engineer Circular 1165-2-220, Policy and Procedural Guidance for Processing Requests to Alter US Army Corps Works Projects).

The Corps conducted six virtual listening sessions in the summer of 2022 to solicit feedback on the Section 408 program.  The feedback was helpful to understanding the challenges, best practices, and future opportunities with the Section 408 program, and will inform the development of a proposed rule.  Additional sessions would be conducted following publication of the proposed rule.