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How do Regulatory permitting and WRDA 408 clearance requirements fit into the processing of the RE application?

Regulatory, 33 U.S.C. 408, and Real Estate clearances are 3 separate types of clearances that may apply to a request to use Government-controlled property.  Depending on the use requested, even more laws or regulations may apply.  For example, if a party seeks to place non-Federal dredged material in a Federal placement area, Section 401(c) of the Clean Water Act applies. 


Regulatory Permits control the activities of the applicant to be performed in the Waters of the United States, including Wetlands, pursuant to applicable laws and regulations, such as Section 10 of the Rivers and Harbor Act of 1899 and Section 404 of the Clean Water Act.  The Regulatory Division’s review of permit requests is LIMITED to their jurisdictional authority.  The Regulatory Division does not have authority over Government-controlled property.

To inquire as to the Regulatory permits requirements, please see the SWG-Regulatory Division web page at:

33 U.S.C. 408

33 U.S.C.408 makes it unlawful for any person or persons to build upon, alter, or deface work built by the United States to prevent floods, unless the Secretary of the Army grants permission.  For permission to be granted it must be shown that the proposed activity will a) not be injurious to the public interest, and b) not impair the usefulness of the Federal project. 

To inquire as to 33 U.S.C. 408 requirements, please see the Operations Division web page at:


It is during the Technical Review that the Operations Division will verify that Regulatory permits and 33 U.S.C. 408 clearances have been obtained, if required. Three situations can occur: 

a.       NO REGULATORY OR SECTION 408 CLEARANCE REQUIRED:  If the activity presented does not require Regulatory or Section 408 clearances, then the Operations Division will begin its Technical Review. 

b.       REGULATORY AND/OR SECTION 408  CLEARANCES REQUIRED AND COMPLETE:  If the Regulatory and Section 408 clearances are already complete, the Operations Division will not duplicate the work performed under the Regulatory and Section 408 clearance processes.  Instead, the Operations Division will incorporate the work performed through these clearances into its Technical Review.  


If Regulatory and/or Section 408 clearances are needed but not complete, then the Operations Division cannot begin its Technical Review.  Once these clearances are complete, the Operations Division will incorporate the work performed through these clearances into its Technical Review. 

NOTE:  Neither a permit from SWG-Regulatory or a 33 U.S.C. 408 clearance authorizes the applicant to access to Government-controlled property.  Only the Real Estate Division can grant access to Government real estate interests within the District area of responsibility.  Part of the Real Estate Division’s determination of whether or not to grant access is based on whether all permitting and 408 clearance requirements have been met.  A Real Estate clearance cannot be processed until all permitting and 408 clearance requirements have been met.