Rivers and Harbors Act
Section 10 Review
This is a common regulatory process, conducted by the USACE parallel to there better known wetland authorities under the Clean Water Act. This review evaluates if there will be action effects on "navigable waters of the US".
Section 408 Review
"Section 14 of the Rivers and Harbors Act of 1899, as amended, and codified in 33 USC 408 (Section 408) provides that the Secretary of the Army may, upon the recommendation of the Chief of Engineers, grant permission to other entities for the permanent or temporary alteration or use of any USACE Civil Works project" (USACE 2017). This includes levees. So any modification of a levee constructed by USACE requires section 408 review.
- In 2017 two levee modification projects to improve habitat (one in King County on the Sammamish River and one by NOSC on the Dungeness River) were unable to obtain proactive involvement from USACE staff to evaluate restoration alternatives. This requires that the project sponsor invest in design development without guidance, with a higher potential for wasted public cost.
- US Army Corps webpage
- Engineering Circular 1165-2-216 expired 30 September 2017 describing section 408 review procedures, and has been replaced by a new EC 1165-2-220
- The criteria are that a modification should 1) not be injurious to the public interest, and 2) not impair the usefulness of the federal project.
- There is a tension between the agency program needing something definite to review, and a project manager that is proposing to modify a levee needing to develop a finite scope of analysis during project design. If the project is not well defined, an agency creates risk if it makes commitments early in review. If a project manager cannot scope design, they cannot control schedule or costs, which can be injurious to project development.