A draft U.S. Army Corps of Engineers (USACE) directive would encourage the agency to concurrently process two related permitting reviews when a project needs them—Section 408 permissions under the Rivers and Harbors Act (RHA) and Clean Water Act (CWA) Section 404 dredge and fill permits—a priority among a number of AGC’s environmental review and permitting reform recommendations. RHA Section 408 requires USACE to evaluate and grant permission for any construction projects that alter existing USACE infrastructure—e.g., bridge/road construction project over, or by, a USACE-built levee, port construction on, or in, a USACE-dredged harbor. Where a construction project needs both a Section 408 permission and Section 404 permit, USACE does not currently begin the Section 404 permitting review process until it completes the Section 408 permission process, which further delays construction projects.
AGC noted in its comments on the draft guidance that it appreciated USACE’s effort to concurrently process these regulatory items as a means of reducing permitting delays. In addition, AGC called on the agency to go further in final guidance by: (1) maintaining agency accountability through recording data and identifying specific staff responsibility for coordinating concurrent processing of the Section 408 permissions with Section 404 permits; and (2) narrowing the need for a 408 permission to a new construction project that directly alters USACE-infrastructure, and does not merely traverse unimproved USACE real property.
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