[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: 33CFR330.5]



[Page 479-481]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

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

                                 DEFENSE

 

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



[[Page 480]]



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 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



[[Page 481]]



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.

    (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.