[Code of Federal Regulations]

[Title 33, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 33CFR325.8]



[Page 436-437]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

 CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 

                                 DEFENSE

 

PART 325_PROCESSING OF DEPARTMENT OF THE ARMY PERMITS--Table of Contents

 

Sec.  325.8  Authority to issue or deny permits.



    (a) General. Except as otherwise provided in this regulation, the 

Secretary of the Army, subject to such conditions as he or his 

authorized representative may from time to time impose, has authorized 

the Chief of Engineers and his authorized representatives to issue or 

deny permits for dams or dikes in intrastate waters of the United States 

pursuant to section 9 of the Rivers and Harbors Act of 1899; for 

construction or other work in or affecting navigable waters of the 

United States pursuant to section 10 of the Rivers and Harbors Act of 

1899; for the discharge of dredged or fill material into waters of the 

United States pursuant to section 404 of the Clean Water Act; or for the 

transportation of dredged material for the purpose of disposing of it 

into ocean waters pursuant to section 103 of the Marine Protection, 

Research and Sanctuaries Act of 1972, as amended. The authority to issue 

or deny permits in interstate navigable waters of the United States 

pursuant to section 9 of the Rivers and Harbors Act of March 3, 1899 has 

not been delegated to the Chief of Engineers or his authorized 

representatives.

    (b) District engineer's authority. District engineers are authorized 

to issue or deny permits in accordance with these regulations pursuant 

to sections 9 and 10 of the Rivers and Harbors Act of 1899; section 404 

of the Clean Water Act; and section 103 of the Marine Protection, 

Research and Sanctuaries Act of 1972, as amended, in all cases not 

required to be referred to higher authority (see below). It is essential 

to the legality of a permit that it contain the name of the district 

engineer as the issuing officer. However, the permit need not be signed 

by the district engineer in person but may be signed for and in behalf 

of him by whomever he designates. In cases where permits are denied for 

reasons other than navigation or failure to obtain required local, 

state, or other federal approvals or certifications, the Statement of 

Findings must conclusively justify a denial decision. District engineers 

are authorized to deny permits without issuing a public notice or taking 

other procedural steps where required local, state, or



[[Page 437]]



other federal permits for the proposed activity have been denied or 

where he determines that the activity will clearly interfere with 

navigation except in all cases required to be referred to higher 

authority (see below). District engineers are also authorized to add, 

modify, or delete special conditions in permits in accordance with Sec.  

325.4 of this part, except for those conditions which may have been 

imposed by higher authority, and to modify, suspend and revoke permits 

according to the procedures of Sec.  325.7 of this part. District 

engineers will refer the following applications to the division engineer 

for resolution:

    (1) When a referral is required by a written agreement between the 

head of a Federal agency and the Secretary of the Army;

    (2) When the recommended decision is contrary to the written 

position of the Governor of the state in which the work would be 

performed;

    (3) When there is substantial doubt as to authority, law, 

regulations, or policies applicable to the proposed activity;

    (4) When higher authority requests the application be forwarded for 

decision; or

    (5) When the district engineer is precluded by law or procedures 

required by law from taking final action on the application (e.g. 

section 9 of the Rivers and Harbors Act of 1899, or territorial sea 

baseline changes).

    (c) Division engineer's authority. Division engineers will review 

and evaluate all permit applications referred by district engineers. 

Division engineers may authorize the issuance or denial of permits 

pursuant to section 10 of the Rivers and Harbors Act of 1899; section 

404 of the Clean Water Act; and section 103 of the Marine Protection, 

Research and Sanctuaries Act of 1972, as amended; and the inclusion of 

conditions in accordance with Sec.  325.4 of this part in all cases not 

required to be referred to the Chief of Engineers. Division engineers 

will refer the following applications to the Chief of Engineers for 

resolution:

    (1) When a referral is required by a written agreement between the 

head of a Federal agency and the Secretary of the Army;

    (2) When there is substantial doubt as to authority, law, 

regulations, or policies applicable to the proposed activity;

    (3) When higher authority requests the application be forwarded for 

decision; or

    (4) When the division engineer is precluded by law or procedures 

required by law from taking final action on the application.