33 U.S.C. § 408

Taking possession of, use of, or injury to harbor or river improvements

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(a) Prohibitions and permissions

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.

(b) Concurrent review(1) NEPA review(A) In general

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) Corps of Engineers as a cooperating agencyIf 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) Reviews by SecretaryIn 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) Contributed funds

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.

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) Preapplication meetingAt 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) Contributed funds

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).

(d) Timely review(1) Complete application

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) DecisionOn 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) Notification to Congress

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) Work Defined

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.

(Mar. 3, 1899, ch. 425, § 14, 30 Stat. 1152; July 26, 1947, ch. 343, title II, § 205(a), 61 Stat. 501; Pub. L. 99–88, title I, § 100, Aug. 15, 1985, 99 Stat. 315; Pub. L. 114–322, title I, § 1156(a), Dec. 16, 2016, 130 Stat. 1664; Pub. L. 115–270, title I, § 1165, Oct. 23, 2018, 132 Stat. 3797; Pub. L. 118–272, div. A, title I, § 1105, Jan. 4, 2025, 138 Stat. 3001.)Editorial NotesReferences in Text

The National Environmental Policy Act of 1969, referred to in subsec. (b)(1), is Pub. L. 91–190, Jan. 1, 1970, 83 Stat. 852, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

Codification

Section is from act Mar. 3, 1899, popularly known as the “Rivers and Harbors Appropriation Act of 1899”.

Prior Provisions

Section superseded act Sept. 19, 1890, ch. 907, § 9, 26 Stat. 426, which prohibited persons taking possession of or using or injuring government works in navigable waters.

Act Aug. 14, 1876, ch. 267, § 3, 19 Stat. 139, penalizing persons injuring any pier breakwater, or other work of the United States for the improvement of rivers or harbors or navigation, was probably omitted from the Code as superseded by this section.

Amendments

2025—Subsecs. (c) to (e). Pub. L. 118–272 added subsec. (c) and redesignated former subsecs. (c) and (d) as (d) and (e), respectively.

2018—Subsec. (d). Pub. L. 115–270 added subsec. (d).

2016—Pub. L. 114–322 designated existing provisions as subsec. (a), inserted heading, and added subsecs. (b) and (c).

1985—Pub. L. 99–88 inserted further proviso empowering Secretary, on recommendation of Chief of Engineers, to grant permission for alteration or permanent occupation or use of any of public works mentioned in this section when in judgment of Secretary such occupation or use will not be injurious to public interest and will not impair usefulness of such work.

Statutory Notes and Related SubsidiariesChange of Name

Department of War designated Department of the Army and title of Secretary of War changed to Secretary of the Army by section 205(a) of act July 26, 1947, ch. 343, title II, 61 Stat. 501. Section 205(a) of act July 26, 1947, was repealed by section 53 of act Aug. 10, 1956, ch. 1041, 70A Stat. 641. Section 1 of act Aug. 10, 1956, enacted “Title 10, Armed Forces” which in sections 3010 to 3013 continued Department of the Army under administrative supervision of Secretary of the Army.

Transfer of Functions

Functions, powers, and duties of Secretary of the Army and other offices and officers of Department of the Army under section 401 of this title to extent that they relate generally to location and clearances of bridges and causeways in navigable waters of United States transferred to and vested in Secretary of Transportation by Pub. L. 89–670, § 6(g)(6)(A), Oct. 15, 1966, 80 Stat. 941, which created Department of Transportation. Pub. L. 97–449 amended section 401 of this title to reflect transfer made by section 6(g)(6)(A) of Pub. L. 89–670, and repealed section 6(g)(6)(A).

Notes of Decisions

Cited in 77 cases (12 in the last 5 years), 1928–2026 · leading case: Am. River Transp. v. United States, Corp of Eng, 728 F.3d 839 (8th Cir. 2013).

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Am. River Transp. v. United States, Corp of Eng, 728 F.3d 839 (8th Cir. 2013). · cites it 10× “” This language was so sweeping the government reasonably could conclude the injunction applied to claims under 33 U.S.C. § 408 . Rather than “‘serv[ing] no purpose while unduly complicating the proceedings,’” ante at 8 (quoting United States v.”

Chotin Transp., Inc., Cross-Appellee v. United States of Am., Cross-Appellant, 819 F.2d 1342 (6th Cir. 1987). · cites it 9× “The third-party in rem action was initiated pursuant to the Rivers and Harbors Act, 33 U.S.C. §§ 408 and 412. The parties stipulated their respective monetary damages.”

Chotin Transp., Inc., Cross-Appellee v. United States of Am., Cross-Appellant, 784 F.2d 206 (6th Cir. 1986). · cites it 12× “The government responded with a third-party complaint in rem against all three vessels of the Chotin barge train under the River and Harbors Act 33 U.S.C. §§ 408 , 412 for damages to the upstream miter gate.”

Standing Rock Sioux Tribe v. United States Army Corps of Engineers, 255 F. Supp. 3d 101 (D.D.C. 2017). · cites it 2× “” 33 U.S.C. § 408 (a). The Corps “may,” however, permit the alteration, permanent occupation, or use of such public works when, in its judgment, such activity (1) “will not impair the usefulness of such work” and (2) “will not be injurious to the public interest.”

Cangemi v. United States, 13 F.4th 115 (2d Cir. 2021). “, 33 U.S.C. § 408 . Moreover, at trial, a USACE representative testified that “maintenance responsibilities for the federal project [at Lake Montauk Harbor] are 100 percent federal,” App’x at 3589, and several Town witnesses testified to the same.”

United States v. Ohio Valley Co., Inc., in Personam, & M/v John Fitzgerald, Her Engines, Tackle, Appurtenances, Etc., in Rem, 510 F.2d 1184 (7th Cir. 1975). · cites it 7× “The primary issue on appeal is whether the defendant-vessel is strictly liable for all of the damage it caused to property of the United States pursuant to sections 14 and 16, Rivers and Harbors Act of 1899, 33 U.S.C. §§ 408 , 412/ and *1185 is thereby precluded from limiting…”

In Re the Complaint of Oswego Barge Corp., 439 F. Supp. 312 (N.D.N.Y. 1977). · cites it 6× “33 U.S.C. § 408 . 3 The opinions in both cases make it clear that the basis for refusing to apply the limitation of 46 U.”

Am. River Transp. v. United States, Corp of Eng, 800 F.3d 428 (8th Cir. 2015). · cites it 4× “Before the time for filing claims had expired, the government filed a motion to dismiss Artco’s complaint, arguing that the government’s claim alleging a violation of the Rivers and Harbors Act (RHA), 33 U.S.C. § 408 , was not subject to limited liability and therefore need not…”

United States v. Capital Sand Co., Inc., 466 F.3d 655 (8th Cir. 2006). · cites it 4× “See 33 U.S.C. § 408 . The district court1 awarded damages to the United States, and the appellants appeal, disputing only the amount of damages awarded to the Army Corps of Engineers (Corps) for overhead expenses.”

United States v. Cent. Soya, Inc., & Canton Towing Co., Inc., in Personam, & Barge Ad-609b, 697 F.2d 165 (7th Cir. 1982). · cites it 3× “The second count, specifically directed against the in-rem defendant Barge AD-609B, was brought under the authority of the Rivers and Harbors Act, 33 U.S.C. §§ 408 , 412. This count sought damages of $131,408.”

United States v. Stand. Oil Co., 384 U.S. 224 (1966). · cites it 2× “1152 , 33 U. S. C. § 408 (1964 ed.). [3] Rivers and Harbors Act of 1899, § 12, 30 Stat.”

Protect Our Parks, Inc. v. Pete Buttigieg, 97 F.4th 1077 (7th Cir. 2024). · cites it 2× “22-3190 of Engineers of the City’s requests for a section 408 permit, see 33 U.S.C. § 408 , and a permit to ﬁll less than an acre of navi- gable waters temporarily, see 33 U.”

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