A Call to Action: Potential Impacts of Section 408 Reform

February 23, 2018

For many of our clients, particularly those in the pipeline or hydro businesses, “Section 408” decisions by the U.S. Army Corps of Engineers (Corps) can be major hurdles. The application of Section 408 varies by district across the nation and is not governed by clear guidance and rules. Normally, Section 408 decisions come at the end of the regulatory process and often become the “catch all” for all interests that are against the project.

On January 23rd, the Corps issued a Draft Engineering Circular (Draft EC) that provides new guidance for the application of the Section 408 process. According to the Federal Register notice, comments on this draft are due to the Corps on March 7th, although there are some indications, not yet official, that the comment period could be extended to April 6th.

Because the Section 408 process is so important to our clients and friends, we are sending this correspondence to be sure that you are aware of the opportunity presented by this Draft EC. Below are links to two documents that we believe will be of assistance to you as you review this Draft EC.

The first document presents some of the highlights of the Draft EC that we believe might be particularly important to our clients and friends. The second document is a side-by-side chart that compares the Draft EC to the legislative provision on Section 408 that was developed by our firm’s Corps Reform Working Group and the legislative provisions on Section 408 that are contained in the President’s “infrastructure legislative outline”. The legislative provisions, including particularly the President’s recommended provisions on Section 408, suggest that there may be room for the Corps to consider improvements to the Draft EC to at least bring its provisions in line with the legislative recommendations of the Administration.

Click here to view the Alert, "Corps Issues Draft Guidance on Section 408 Permission Requests, Solicits Comments" on our website.

Click here for a side-by-side analysis of potential reforms.

We encourage you to take advantage of this opportunity to bring clarity and improvements to the Section 408 process. The firm is available to help any of our clients and friends both with analysis of the Draft EC and with comments to be filed with the Corps.

To discuss the Draft EC further with a Van Ness Feldman professional, please don’t hesitate to contact any of the following professionals in our Washington, DC and Seattle offices: Brent Carson, John Clements, Jenna Mandell-Rice, Herman Gesser, III, or Bob Szabo.        

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