[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: 33CFR331.6]



[Page 487-488]

 

                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.  331.6  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



[[Page 488]]



(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 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.