[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: 33CFR331.5]



[Page 486-487]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

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

                                 DEFENSE

 

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



[[Page 487]]



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;

    (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.