[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: 33CFR331.5]

[Page 477-478]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 331--ADMINISTRATIVE APPEAL PROCESS--Table of Contents
 
Sec. 331.5  Criteria.

    (a) Criteria for appeal--(1) Submission of RFA. The appellant must 
submit a completed RFA (as defined at Sec. 331.2) to the appropriate 
division office in order to appeal an approved JD, a permit denial, or a 
declined permit. An individual permit that has been signed by the 
applicant, and subsequently unilaterally modified by the district 
engineer pursuant to 33 CFR 325.7, may be appealed under this process, 
provided that the applicant has not started work in waters of the United 
States authorized by the permit. The RFA must be received by the 
division engineer within 60 days of the date of the NAP.
    (2) Reasons for appeal. The reason(s) for requesting an appeal of an 
approved JD, a permit denial, or a declined permit must be specifically 
stated in the RFA and must be more than a simple request for appeal 
because the affected party did not like the approved JD, permit 
decision, or the permit conditions. Examples of reasons for appeals 
include, but are not limited to, the following: A procedural error; an 
incorrect application of law, regulation or officially promulgated 
policy; omission of material fact; incorrect application of the current 
regulatory criteria and associated guidance for identifying and 
delineating wetlands; incorrect application of the Section 404(b)(1) 
Guidelines (see 40 CFR Part 230); or use of incorrect data. The reasons 
for appealing a permit denial or a declined permit may include 
jurisdiction issues, whether or not a previous approved JD was appealed.
    (b) Actions not appealable. An action or decision is not subject to 
an administrative appeal under this part if it falls into one or more of 
the following categories:
    (1) An individual permit decision (including a letter of permission 
or a standard permit with special conditions), where the permit has been 
accepted and signed by the permittee. By signing the permit, the 
applicant waives all rights to appeal the terms and conditions of the 
permit, unless the authorized work has not started in waters of the 
United States and that issued permit is subsequently modified by the 
district engineer pursuant to 33 CFR 325.7;
    (2) Any site-specific matter that has been the subject of a final 
decision of the Federal courts;
    (3) A final Corps decision that has resulted from additional 
analysis and evaluation, as directed by a final appeal decision;

[[Page 478]]

    (4) A permit denial without prejudice or a declined permit, where 
the controlling factor cannot be changed by the Corps decision maker 
(e.g., the requirements of a binding statute, regulation, state Section 
401 water quality certification, state coastal zone management 
disapproval, etc. (See 33 CFR 320.4(j));
    (5) A permit denial case where the applicant has subsequently 
modified the proposed project, because this would constitute an amended 
application that would require a new public interest review, rather than 
an appeal of the existing record and decision;
    (6) Any request for the appeal of an approved JD, a denied permit, 
or a declined permit where the RFA has not been received by the division 
engineer within 60 days of the date of the NAP;
    (7) A previously approved JD that has been superceded by another 
approved JD based on new information or data submitted by the applicant. 
The new approved JD is an appealable action;
    (8) An approved JD associated with an individual permit where the 
permit has been accepted and signed by the permittee;
    (9) A preliminary JD; or
    (10) A JD associated with unauthorized activities except as provided 
in Sec. 331.11.