§ 408 — Taking Possession Of, Use Of, Or Injury To Harbor Or River Improvements

(a) It shall not be lawful for any person or persons to take possession of or make use of for any purpose, or build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, or any piece of plant, floating or otherwise, used in the construction of such work under the control of the United States, in whole or in part, for the preservation and improvement of any of its navigable waters or to prevent floods, or as boundary marks, tide gauges, surveying stations, buoys, or other established marks, nor remove for ballast or other purposes any stone or other material composing such works: Provided, That the Secretary of the Army may, on the recommendation of the Chief of Engineers, grant permission for the temporary occupation or use of any of the aforementioned public works when in his judgment such occupation or use will not be injurious to the public interest: Provided further, That the Secretary may, on the recommendation of the Chief of Engineers, grant permission for the alteration or permanent occupation or use of any of the aforementioned public works when in the judgment of the Secretary such occupation or use will not be injurious to the public interest and will not impair the usefulness of such work. (A) In any case in which an activity subject to this section requires a review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), review and approval of the activity under this section shall, to the maximum extent practicable, occur concurrently with any review and decisions made under that Act. (B) If the Corps of Engineers is not the lead Federal agency for an environmental review described in subparagraph (A), the Corps of Engineers shall, to the maximum extent practicable and consistent with Federal laws— (i) participate in the review as a cooperating agency (unless the Corps of Engineers does not intend to submit comments on the project); and (ii) adopt and use any environmental document prepared under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) by the lead agency to the same extent that a Federal agency could adopt or use a document prepared by another Federal agency under— (I) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and (II) parts 1500 through 1508 of title 40, Code of Federal Regulations (or successor regulations). (2) In any case in which the Secretary must approve an action under this section and under another authority, including sections 401 and 403 of this title, section 1344 of this title, and section 1413 of this title, the Secretary shall— (A) coordinate applicable reviews and, to the maximum extent practicable, carry out the reviews concurrently; and (B) adopt and use any document prepared by the Corps of Engineers for the purpose of complying with the same law and that addresses the same types of impacts in the same geographic area if such document, as determined by the Secretary, is current and applicable. (3) The Secretary may accept and expend funds received from non-Federal public or private entities to evaluate under this section an alteration or permanent occupation or use of a work built by the United States. (1) The Secretary shall establish clear, concise, and specific guidance to be used within the Corps of Engineers and by non-Federal entities developing applications for permission standardizing the review process across Districts. (2) At the request of a non-Federal entity that is planning on submitting an application for permission pursuant to subsection (a), the Secretary shall meet with the non-Federal entity to— (A) provide clear, concise, and specific design standards that the non-Federal entity must use in the development of the application; (B) recommend, based on coordination with the non-Federal entity, the appropriate number of design packages for submission for the proposed action, and the stage of development at which such packages should be submitted; and (C) identify potential concerns or conflicts with such proposed actions. (3) The Secretary may use funds accepted from a non-Federal entity under subsection (b)(3) for purposes of conducting a meeting described in paragraph (2). (1) On or before the date that is 30 days after the date on which the Secretary receives an application for permission to take action affecting public projects pursuant to subsection (a), the Secretary shall inform the applicant whether the application is complete and, if it is not, what items are needed for the application to be complete. (2) On or before the date that is 90 days after the date on which the Secretary receives a complete application for permission under subsection (a), the Secretary shall— (A) make a decision on the application; or (B) provide a schedule to the applicant identifying when the Secretary will make a decision on the application. (3) In any case in which a schedule provided under paragraph (2)(B) extends beyond 120 days from the date of receipt of a complete application, the Secretary shall provide to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an explanation justifying the extended timeframe for review. (e) For the purposes of this section, the term “work” shall not include unimproved real estate owned or operated by the Secretary as part of a water resources development project if the Secretary determines that modification of such real estate would not affect the function and usefulness of the project.