[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: 33CFR331.6]

[Page 478-479]
 
                TITLE 33--NAVIGATION AND NAVIGABLE WATERS
 
         CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
 
PART 331--ADMINISTRATIVE APPEAL PROCESS--Table of Contents
 
Sec. 331.6  Filing an appeal.

    (a) An affected party appealing an approved JD, permit denial or 
declined permit must submit an RFA that is received by the division 
engineer within 60 days of the date of the NAP. Flow charts illustrating 
the appeal process are in the Appendices of this part.
    (b) In the case where an applicant objects to an initial proffered 
individual permit, the appeal process proceeds as follows. To initiate 
the appeal process regarding the terms and special conditions of the 
permit, the applicant must write a letter to the district engineer 
explaining his objections to the permit. The district engineer, upon 
evaluation of the applicant's objections, may: Modify the permit to 
address all of the applicant's objections or modify the permit to 
address some, but not all, of the applicant's objections, or not modify 
the permit, having determined that the permit should be issued as 
previously written. In the event that the district engineer agrees to 
modify the initial proffered individual permit to address all of the 
applicant's objections, the district engineer will proffer such modified 
permit to the applicant, enclosing an NAP fact sheet and an RFA form as 
well. Should the district engineer modify the initial proffered 
individual permit to address some, but not all, of the applicant's 
objections, the district engineer will proffer such modified permit to 
the applicant, enclosing an NAP fact sheet, RFA form, and a copy of the 
decision document for the project. If the district engineer does not 
modify the initial proffered individual permit, the district engineer 
will proffer the unmodified permit to the applicant a second time, 
enclosing an NAP fact sheet, an RFA form, and a copy of the decision 
document. If the applicant still has objections, after receiving the 
second proffered permit (modified or unmodified), the applicant may 
decline such proffered permit; this declined permit may be appealed to 
the division engineer upon submittal of a complete RFA form. The 
completed RFA must be received by the division engineer within 60 days 
of the NAP. A flow chart of an applicant's options for an initial 
proffered individual permit is shown in appendix B of this part. A flow 
chart of the appeal process for a permit denial or a declined permit 
(i.e., a proffered permit declined after the Corps decision on the 
applicant's objections to the initial proffered permit) is shown in 
appendix A of this part. A flow chart of the appeal process for an 
approved jurisdictional determination is shown in appendix C of this 
part. A flow chart of the process for when an unacceptable request for 
appeal is returned to an applicant is shown in appendix D of this part.
    (c) An approved JD will be reconsidered by the district engineer if 
the affected party submits new information or data to the district 
engineer within 60 days of the date of the NAP. (An RFA that contains 
new information will either be returned to the district engineer for 
reconsideration or the appeal will be processed if the applicant 
withdraws the new information.) The district engineer has 60 days from 
the receipt of such new information or data

[[Page 479]]

to review the new information or data, consider whether or not that 
information changes the previously approved JD, and, reissue the 
approved JD or issue a new approved JD. The reconsideration of an 
approved JD by the district engineer does not commence the 
administrative appeal process. The affected party may appeal the 
district engineer's reissued or new approved JD.
    (d) The district engineer may not delegate his signature authority 
to deny the permit with prejudice or to return an individual permit to 
the applicant with unresolved objections. The district engineer may 
delegate signature authority for JDs, including approved JDs.
    (e) Affected parties may appeal approved JDs where the determination 
was dated after March 28, 2000, but may not appeal approved JDs dated on 
or before March 28, 2000. The Corps will begin processing JD appeals no 
later than May 30, 2000. All appeals must meet the criteria set forth in 
Sec. 331.5. If work is authorized by either general or individual 
permit, and the affected party wishes to request an appeal of the JD 
associated with the general permit authorization or individual permit or 
the special conditions of the proffered individual permit, the appeal 
must be received by the Corps and the appeal process concluded prior to 
the commencement of any work in waters of the United States and prior to 
any work that could alter the hydrology of waters of the United States.