[Code of Federal Regulations]
[Title 33, Volume 3]
[Revised as of July 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 33CFR330.5]

[Page 470-472]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 330--NATIONWIDE PERMIT PROGRAM--Table of Contents
 
Sec. 330.5  Issuing, modifying, suspending, or revoking nationwide permits and authorizations.

    (a) General. This section sets forth the procedures for issuing and 
reissuing NWPs and for modifying, suspending, or revoking NWPs and 
authorizations under NWPs.
    (b) Chief of Engineers. (1) Anyone may, at any time, suggest to the 
Chief of Engineers, (ATTN: CECW-OR), any new NWPs or conditions for 
issuance, or changes to existing NWPs, which he believes to be 
appropriate for consideration. From time-to-time new NWPs and 
revocations of or modifications to existing NWPs will be evaluated by 
the Chief of Engineers following the procedures specified in this 
section. Within five years of issuance of the NWPs, the Chief of 
Engineers will review the NWPs and propose modification, revocation, or 
reissuance.
    (2) Public notice. (i) Upon proposed issuance of new NWPs or 
modification, suspension, revocation, or reissuance of existing NWPs, 
the Chief of Engineers will publish a document seeking public comments, 
including the opportunity to request a public hearing. This document 
will also state that the information supporting the Corps' provisional 
determination that proposed activities comply with the requirements for 
issuance under general permit authority is available at the Office of 
the Chief of Engineers and at all district offices. The Chief of 
Engineers will prepare this information which will be supplemented, if 
appropriate, by division engineers.
    (ii) Concurrent with the Chief of Engineers' notification of 
proposed, modified, reissued, or revoked NWPs, DEs will notify the known 
interested public by a notice issued at the district level. The notice 
will include proposed regional conditions or proposed revocations of NWP 
authorizations for specific geographic areas, classes of activities, or 
classes of waters, if any, developed by the division engineer.
    (3) Documentation. The Chief of Engineers will prepare appropriate 
NEPA documents and, if applicable, section 404(b)(1) Guidelines 
compliance analyses for proposed NWPs. Documentation for existing NWPs 
will be modified to reflect any changes in these permits and to reflect 
the Chief of Engineers' evaluation of the use of the permit since the 
last issuance. Copies of all comments received on the document will be 
included in the administrative record. The Chief of Engineers will 
consider these comments in making his decision on the NWPs, and will 
prepare a statement of findings outlining his views regarding each NWP 
and discussing how substantive comments were considered. The Chief of 
Engineers will also determine the need to

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hold a public hearing for the proposed NWPs.
    (4) Effective dates. The Chief of Engineers will advise the public 
of the effective date of any issuance, modification, or revocation of an 
NWP.
    (c) Division Engineer. (1) A division engineer may use his 
discretionary authority to modify, suspend, or revoke NWP authorizations 
for any specific geographic area, class of activities, or class of 
waters within his division, including on a statewide basis, by issuing a 
public notice or notifying the individuals involved. The notice will 
state his concerns regarding the environment or the other relevant 
factors of the public interest. Before using his discretionary authority 
to modify or revoke such NWP authorizations, division engineers will:
    (i) Give an opportunity for interested parties to express their 
views on the proposed action (the DE will publish and circulate a notice 
to the known interested public to solicit comments and provide the 
opportunity to request a public hearing);
    (ii) Consider fully the views of affected parties;
    (iii) Prepare supplemental documentation for any modifications or 
revocations that may result through assertion of discretionary 
authority. Such documentation will include comments received on the 
district public notices and a statement of findings showing how 
substantive comments were considered;
    (iv) Provide, if appropriate, a grandfathering period as specified 
in Sec. 330.6(b) for those who have commenced work or are under contract 
to commence in reliance on the NWP authorization; and
    (v) Notify affected parties of the modification, suspension, or 
revocation, including the effective date (the DE will publish and 
circulate a notice to the known interested public and to anyone who 
commented on the proposed action).
    (2) The modification, suspension, or revocation of authorizations 
under an NWP by the division engineer will become effective by issuance 
of public notice or a notification to the individuals involved.
    (3) A copy of all regional conditions imposed by division engineers 
on activities authorized by NWPs will be forwarded to the Office of the 
Chief of Engineers, ATTN: CECW-OR.
    (d) District Engineer. (1) When deciding whether to exercise his 
discretionary authority to modify, suspend, or revoke a case specific 
activity's authorization under an NWP, the DE should consider to the 
extent relevant and appropriate: Changes in circumstances relating to 
the authorized activity since the NWP itself was issued or since the DE 
confirmed authorization under the NWP by written verification; the 
continuing need for, or adequacy of, the specific conditions of the 
authorization; any significant objections to the authorization not 
previously considered; progress inspections of individual activities 
occurring under an NWP; cumulative adverse environmental effects 
resulting from activities occurring under the NWP; the extent of the 
permittee's compliance with the terms and conditions of the NWPs; 
revisions to applicable statutory or regulatory authorities; and, the 
extent to which asserting discretionary authority would adversely affect 
plans, investments, and actions the permittee has made or taken in 
reliance on the permit; and, other concerns for the environment, 
including the aquatic environment under the section 404(b)(1) 
Guidelines, and other relevant factors of the public interest.
    (2) Procedures. (i) When considering whether to modify or revoke a 
specific authorization under an NWP, whenever practicable, the DE will 
initially hold informal consultations with the permittee to determine 
whether special conditions to modify the authorization would be mutually 
agreeable or to allow the permittee to furnish information which 
satisfies the DE's concerns. If a mutual agreement is reached, the DE 
will give the permittee written verification of the authorization, 
including the special conditions. If the permittee furnishes information 
which satisfies the DE's concerns, the permittee may proceed. If 
appropriate, the DE may suspend the NWP authorization while holding 
informal consultations with the permittee.

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    (ii) If the DE's concerns remain after the informal consultation, 
the DE may suspend a specific authorization under an NWP by notifying 
the permittee in writing by the most expeditious means available that 
the authorization has been suspended, stating the reasons for the 
suspension, and ordering the permittee to stop any activities being done 
in reliance upon the authorization under the NWP. The permittee will be 
advised that a decision will be made either to reinstate or revoke the 
authorization under the NWP; or, if appropriate, that the authorization 
under the NWP may be modified by mutual agreement. The permittee will 
also be advised that within 10 days of receipt of the notice of 
suspension, he may request a meeting with the DE, or his designated 
representative, to present information in this matter. After completion 
of the meeting (or within a reasonable period of time after suspending 
the authorization if no meeting is requested), the DE will take action 
to reinstate, modify, or revoke the authorization.
    (iii) Following completion of the suspension procedures, if the DE 
determines that sufficient concerns for the environment, including the 
aquatic environment under the section 404(b)(1) Guidelines, or other 
relevant factors of the public interest so require, he will revoke 
authorization under the NWP. The DE will provide the permittee a written 
final decision and instruct him on the procedures to seek authorization 
under a regional general permit or an individual permit.
    (3) The DE need not issue a public notice when asserting 
discretionary authority over a specific activity. The modification, 
suspension, or revocation will become effective by notification to the 
prospective permittee.