Many of us have seen the signs or webpages where some US Army Corps of Engineers (USACE) divisions state that it’s illegal to fly over their lands and water w/o permission.
And we’ve all seen the discussions back and forth on social media.
And I know almost all of us have heard of drone operators, both recreational and non-recreational, being stopped by USACE personnel and told they have to land or be arrested, even when flying from outside USACE lands and waters.
The trouble stems from some divisions, whether organized or not, posting a grossly abbreviated section of 36 CFR § 327.0. Specifically § 327.4(c), which states “No person shall operate any aircraft while on or above project waters or project lands in a careless, negligent or reckless manner so as to endanger any person, property or environmental feature.”
Many USACE websites and handouts simply state, “No person shall operate any aircraft while on or above project waters or project lands.” And that’s it, they completely ignore the second half of that regulation, and that changes it’s intent entirely.
It seems USACE District Commanders have either conspired to only show the first part of that regulation, or someone from USACE Command has sent down an edict commanding everyone to only use the first part of that regulation. How else could the same incorrect language be present in so many official statements?
Take a look below at this New England District’s Press Release. This is just one of many examples we’ve run across when talking with people about this. It basically mirrors the standard practice of ignoring the entirety of § 327.4(c).
The first sentence on this press release states: “The use of unmanned aircraft systems (UAS), such as drones, are prohibited on or above federal lands and waters managed by the U.S. Army Corps of Engineers, New England District. This prohibition applies regardless of the location of the operator.” “… regardless of the location of the operator“! Look here for yourself. Now granted, this is from a 2018 press release, but we see that it’s still on their website, and easily found.
And what about this handout from Sandwich Marina is Massachusetts?
Apparently the Cape Cod Canal ACE Command gave this to the marina to give to folks. And it’s still on their website. They reference 36 CFR § 327.4 as prohibiting operation “over” the lands and waters. This was brought up to them in May of 2021, but apparently it fell on deaf ears. Click the link in red here. That shows it’s still in effect.
I will give credit where credit is due, the Cape Cod Canal ACE website did get changed, although they have even taken liberties with the actual wording of § 327.4. They’ve used § 327.4 to say you can’t fly “from” lands and waters under New England USACE. That isn’t what that states at all. They’re obviously allowed to prohibit drones from lands and waters, they don’t need to misinterpret § 327.4 to do that.
So why this article at this time?
In June of this year, I had one too many people reach out to me about this. I decided it was time to be a pebble is someone’s shoe. The poor clerk for whom I was a pebble was a Chief from the Public Affairs Office of the North Atlantic Division, USACE.
I reached out and asked about some language in another press release that was given to a drone pilot who was flying in their area. You can find that one here. Again, it’s an older press release, but it was still being used today by USACE personnel. It was referenced by a USACE person telling him to land.
Once I reached out he answered me with the usual misinterpretation of § 327.4. When I pointed out to him that it was an incorrect interpretation, and when I pointed out that isn’t what it says in the very links he sent me, he decided to send my inquiry to USACE HQ, “… to ensure you [me] have the correct information”.
He sent me three subsequent emails apologizing for the delay. And the very last one, which I received 8/16/23, confirmed what I was hoping for. I wish I could give you his name, but I didn’t ask permission, and I don’t want do that without permission. Maybe he’ll read this and get my gratitude that way.
Again, the clerk was very nice about it, and was apologetic about the delay. But it took them 6 weeks to get this to me. However, it was worth the wait. Apparently I, and everyone else who has been trying to fight this, was 100% correct.
The attached letter was from:
DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS, NORTH ATLANTIC DIVISION
FORT HAMILTON MILITARY COMMUNITY
302 JOHN WARREN AVENUE
BROOKLYN, NY 11252-6700
I don’t know about you, but that letterhead certainly got my attention. And it was signed by John P. Lloyd, Colonel, EN Commanding. Yet another set of attention getting words all strung together.
The attached letter started out stating that USACE can prohibit operations under certain circumstances, including “above”. But he states that must be in coordination with the FAA. Something we’ve been arguing about since 2019. All stuff we all agree on apparently.
He even references “USACE Engineering Circular (EC) 1110-1-109” (which was very difficult to find). It also agrees, without any argument, that USACE cannot unilaterally stop overflights from outside their lands and waters. EC1110-1-109 15(b) states unequivocally “To restrict airspace above USACE project lands, the FAA must designate the airspace as a “no fly zone.”” You can find that on page 19 here.
The letter finally gives us an official answer to “Can we fly over USACE lands and waters from outside their boundaries?” And that official answer is “yes“!
So now we have an official document that states clearly and without question, that unless the FAA officially designates the airspace above USACE lands and waters as a “no fly zone”, you are most certainly allowed to fly there from outside USACE boundaries. And they cannot legally stop you. This is from the Commander of the North Atlantic Division, but it references regulation that applies to all USACE divisions. So it can be used to make your argument in other USACE divisions as well.
Now of course there are the usual caveats of maintaining FAA regs (BVLOS and OOP being the most difficult), and making sure you have, or don’t need permission from the owners of where you are flying from, but if we satisfy all of those requirements, USACE can’t stop you.
And of course, we should always fly friendly. Now is when I’ll put my usual comment about the fact that we are always Drone Ambassadors when we’re out flying, and we should act accordingly.
However, (and there always seems to be a “however”) this may not stop them from trying. If this happens to you, cooperate. Land, calmly argue your point, and show them the letter from Colonel Lloyd, the language of 36 CFR § 327.4(c), and page 19 or EC1110-1-109. If necessary, ask to speak with the District Commander. If that doesn’t work, please reach out to me, vic@dspalliance.org.
I strongly recommend each and every one of you print out the letter from Colonel Lloyd, a copy of the USACE 327.4, and page 19 of EC1110-1-109 and keep it in your Policy & Procedure Manual. It might even be worth highlighting the appropriate areas of each page.
And, as always, fly safe.
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