Tuesday
March 9, 1999
Part IV
Department of
Defense
Department of the Army, Corps of
Engineers
33 CFR Parts 320, 326, and 331
Administrative Appeal Process
Establishment for the Regulatory Program
of the Corps of Engineers; Final Rule
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Federal Register /Vol. $'4.' No! 45/Tuesday! MarcO'! 19§9/Rules' and 'Regulations
DEPARTMENT OF DEFENSE
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Department of the Army, Corps of
Engineers
33 CFR Parts 320, 326, and 331
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Final Rule Establishing an
Administrative Appeal Process for the
Regulatory Program of the Corps of
, Engineers
AGENCY: Army Corps of Engineers, DoD.
AfcTTON: Final rule.
SUMMARY: Onjuly 19, 1995, the Corps of
Engineers published notice in the
Federal Register of a proposal to
establish an administrative appeal
process for the regulatory program o'f the
Corps of Engineers, (33 CFR Parts 320-
33 1). The notice period expired on
September 5, 1995. The Corps has
evaluated and addressed the issues
raised in comments submitted in
response to the proposed rule.
Appropriate changes have been made to
clarify and enhance the administrative
appeal process for permit denials and
declined permits published herein as a
Final Rule.
: This rule becomes
effective oh August 6, 1999.
TOR FURTHER INFORMATION CONTACT: Mr.
Sam Collinson, Corps of Engineers
Regulatory Branch, (202) 761-0199.
SUPPLEMENTARY INFORMATION:
I. Background
Shortly after coming into office in
1993, the Clinton Administration
convened an tateragency working group
to address concerns with Federal
wetlands policy. After hearing from
States, tribes, developers, farmers,
environmental interests, members of
Congress, and scientists, the working
group developed a comprehensive, 40-
point plan (the Plan) to enhance
wetlands protection, while making
wetlands regulations more fair, flexible,
and effective for everyone, including
America's small landowners. The Plan
was Issued on August 24, 1993. It
emphasizes improving Federal wetlands
policy through various means, including
streamlining wetlands permitting
programs. One of several approaches
Identified in the Plan for achieving such
streamlining was through the
development by the Corps of an
administrative appeal process, to be
Implemented after public rulemaking.
The Plan provides diat the process will
be designed to allow for administrative
appeal of Section 404 geographic
jurisdictlbnai determinations and
permit denials.
Onjuly 19, 1995, the Corps of
Engineers published notice in the
Federal Register of a proposal to
establish an administrative appeal
process for the regulatory program of the
Corps of Engineers. The notice period
expired on September 5, 1995. The
Corps has evaluated and addressed die
issues raised in comments submitted in
response to die proposed rule.
Appropriate changes have been made to
clarify and enhance the administrative
appeal process for permit denials and
declined permits published herein as a
Final Rule. In Fiscal Years 1995 to 1999
the President's budgets have included
money to implement an administrative-
appeal process for permit denials and
jurisdiction determinations. Froni FY 95
diroughi FY 97 the Congressional
appropriation for .the Corps regulatory
program was held level at $101 million.
In FY 98 Congress appropriated $106
million. This funding in FY 98 allowed
die Corps to move toward finalizing
regulations for administrative appeals-of
permit denials and declined permits.
Congress held die Corps regulatory
program budget level again in FY 99 at
$106 million. The President's Budget
request for FY 00 of $117 million
includes funds necessary to implement
die appeals process for jurisdictional
determinations as well as the appeals
process for permit denials that we are
finalizing with this rule. Should
Congress provide the full request of
,$117 million in FY 00, we will proceed
to implement die appeals process for
jurisdictional determinations.
The rule adopted herein provides for
die administrative appeal widiin the
Corps of a denial with prejudice by the
district engineer of a Department of the
Army permit application, as well as die
appeal of a declined proffered
individual permit. Consistent widi the
Plan and as explained below, third
parties may participate in the appeal
process.
This rule does not establish, at diis
time, an appeal process for
jurisdictional determinations or wetland
_ delineations. We have carefully
considered die issue, and have
determined that given die resources
available to the Corps at this time, we
would be unable to administer an
appeal process for jurisdictional
determinations and wetland
delineations in a timely manner without
adversely affecting die overall
performance of the Corps regulatory
program. The employees dedicated to
these new tasks would have to be taken
from the existing district staffs, with the
result that each district would have
fewer project managers to evaluate
permit applications and administer the
,. .. , .
rest of the program. Given this situation,
we believe that our efforts should be
concentrated to the extent possible on"
maintaining and improving the overall
performance of the Corps regulatory
program. Should additional resources
become available at a later date, we will
consider expanding the appeal process
to include jurisdictional determinations
and wedand delineations.
II. Comments on the Proposed Rule
A. General
Comments received on the proposed
rule can be summarized under several
broad headings. They are: (1) The type
of actions reviewed and the extent of the
review; (2) The identity and authority of
die review officer (RO); (3) The identity ,
and rights of appellants; (4)
Enforcement-related issues; (5)
Suggested procedural changes and
clarifications; and (6) General
expressions of both opposition and
support of an administrative appeal
process. The comments concerning each
of diese topics, including those that
pertain to the appeal of permit denials
and die terms and conditions of
proffered individual permits, were
carefully considered, and are addressed
herein. Comments diat pertain solely to
die appeal of jurisdictional
determinations are not addressed in this
document. Consideration of diose
comments will be addressed at such
time as the Corps may adopt an appeal
process for jurisdictional
determinations.
B. Discussion of Specific Comments
(1) Type of Actions Reviewed and
Extent of Review
A number of comments were received
requesting that the appeal process be
expanded to include the assertion of
discretionary audiority, issuance of
cease and desist orders, special
conditions, denial without prejudice of
a permit application, and delays in the
evaluation of a permit application.
While we recognize die desire of
various individuals and interest groups
to expand the scope of the
administrative appeal process to cover
all regulatory decisions diat may impact
their respective interests, we have •
determined that there are several
reasons why it would not currendy be
prudent to do so. First, some of the
decisions diat were suggested should be
appealable are preliminary in nature. As
a result, there often is not an adequate
administrative record upon which to
base a meaningful review. For example,
the assertion of discretionary authority
to require an individual permit for an
activity is often based upon preliminary
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Federal Register /Vol.. 64, No. 45/Tuesday, March 9,. 1999/Rules and Regulations , ; 11709..
indications that the potential adverse
effects of a'particular project on the
environment, or other aspects of the
public interest, may be more than
minimal. In such cases, the individual
permit process is,needed to investigate
the probable effect of the project on the
public interest before making a final
permit decision, In addition, the
assertion of discretionary authority only .
addresses the form of authorization that
is being considered, and not whether
the proposed activity will be authorized. .
Second, we have limited resources to
implement an administrative appeal
process, and we could easily, find ,
ourselves to be overwhelmed by the
demand for administrative review of a •
broad range.of regulatory decisions.
Given our FY 1.998 appropriation from
Congress, sufficient funds are available
to implement properly an
administrative appeal process for
denied permits, and declined individual
permits only. Third, we do not wish to
encourage permit applicants to enter
, into a formal administrative appeal
process without first utilizing the
informal review process already
.available in Corps district offices. The
informal district review process,
generally based on additional
information or a new interpretation of
existing information, is the most timely
and efficient means to resolve many , *
issues, such as jurisdictional questions.
Accordingly, at this time, we are
limiting the administrative appeal
process to denied permits, and to
proffered individual permits that have
been declined by the applicant.
Several of the comments received
indicated that some parties believed that
the appeal process would allow an,
applicant to appeal the terms and
' conditions of an individual permit, and
begin work in jurisdictional areas, while
the appeal was under way. This
., interpretation of the appeal process is
"incorrect. Permit conditions are an
integral part of a permit, and cannot be
treated as independent actions. No
regulated activity would be allowed to .
begin in any jurisdictional waters of the
United States until the applicant has
accepted all the terms and conditions of
the proffered permit. In cases where an
individual permit has been accepted by
the applicant; and the terms and
conditions of such permit are
subsequently unilaterally modified by
the district engineer pursuant to 33 CFR
325.7, the permit may be declined by
the permittee and appealed under this
process, as long as no regulated
activities have taken place in waters of
the United States on the project site.
Permit conditions are designed to •--
ensure that, the authorized project will -
be constructed, operated apd .
maintained in such way that it would
not cause significant, degradation of the
•aquatic environment, or bfe 'contrary to
the pubfic interest; or .to ensure
compliance with legal requirements,
such as Section 401 State water quality
certification conditions, and the .
Endangered Species Act. In the case
where an applicant declines a proffered
individual permit because the applicant
objects to the terms and conditions of
the permit, the appeal process would
proceed as follows. Should the
applicant object to the terms and
conditions of the individual 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: (a) modify
the permit to address all of the
applicant's objections, or (b) modify the
permit to address some, but not all, of
the applicant's objections, or (c) 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
proffered individual permit to address
all of the applicant's objections, the
district engineer will issue such a
modified permit. Should the district
* engineer modify the proffered permit to
address some, but not all, of the
applicant's objections, the district
"" engineer will send the applicant such a
modified permit and the decision
document for the project. If the district
engineer does not modify the proffered
permit, the district engineer will offer
the unmodified permit to the applicant
a second time. In all cases, the second
., trahsmittal of the permit shall include a
notification of appeal (NAP) form and a
request for appeal (RFA) form (see
definitions in 33 CFR 331.2). If the
applicant subsequently declines any
modified or unmodified permit, this
declined permit may be appealed to the
division engineer upon submittal of a
completed RFA form: The completed
RFA must be received by the division
engineer within 60 days of the NAP.
There were several comments
concerning the scope of the review
process. Several-commenters
recommended that the review officer • • -,'
(RO) consider new information/
conducting, in effect, a new and
independent review. Other commenters
indicated that new information should
be accepted only if it serves to clarify
existing issues, and did not raise new
issues that were not considered in the
Corps original evaluation of the permit
application. After careful consideration.
we have decided that the review
undertaken by the RO would be limited .
to the existing administrative record;
however, the RO may seek to clarify the
record dirough consultation with the
appellant and his agent(s), the district .-''
engineer, other-Federal and state agency
personnel, or other parties, as described
in 33 CFR 331.3 and' 331.'7. ' ..' '•
Accepting new .information about the
project during the appeal process would
constitute a fundamental change of the
administrative record. Such new
information might well have resulted in
a different permit decision had it been
presented to the district engineer during
the original permit evaluation process. It
is essential that new information be
accepted only at the district level, so
that the district engineer's decision will
reflect an accurate and comprehensive
analysis of the data compiled in the •
administrative record. Furthermore,
allowing 'an applicant to withhold
potentially critical information from the
district engineer might encourage
forum-shopping, if an applicant were to
.believe that a more favorable decision .
might be obtained from the division
engineer than from the district engineer.
(2) The Identity and Authority of the
Review Officer (RO) .
Comments were received regarding
the appropriate person to serve as the
RO, and the extent of the RO's authority.
Most comments were concerned
primarily with ensuring that the RO be
independent and impartial, that the
process be efficient, and that the RO
have the authority to change the original
permit decision. Some commenters also
recommended that the RO be authorized.
to change unilaterally a district
engineer's permit denial decision.
Suggestions were also received stating
that the administrative appeal process
.should be conducted outside of the
Corps of Engineers, e.g., by contracting ,
with private consultants, utilizing
administrative law judges, or referring
the appeals to another Federal agency.
Several commenters expressed strong
supportfdr retaining the appeal process
within the Corps, while other
commenters expressed an equally strong
desire to transfer the appeal process, to '
an independent third party'in order to'
- promote impartiality, to avoid the
perception of bias, and to enhance the
credibility of the process.
We have given careful consideration
to whether the appeal process should be
;administered wholly within the Corps,
or whether it should be administered by
an independent third party. While the
perception of agency bias is a serious
concern, we believe that such ,
perceptions cannot be avoided
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Federal Register /Vol. 64, No. 45/Tuesday, March 9, 1999/Rules and Regulations
absolutely, and that the negative
connotations are far outweighed by
having the appeal process managed by
people who have the most experience
with the Corps of Engineers regulatory'
program. Nfoving the appeal process
outside the agency, either to another
Federal agency, or by contracting with
the private sector, even if a Corps
representative were part of the process,
would severely diminish the
consistency and efficiency of the appeal
process, and would raise serious legal
questions. The Corps regulatory
program is complex, and it is unlikely
that Individuals outside of the agency
would have the perspective' and long
experience with the program that would
be needed to conduct a thorough, timely
review. Also, given the evolving nature
of the policies, laws, regulations and
court decisions that have shaped the
Corps regulatory program, non-Corps
review officers would have to be trained
and updated on a regular basis in order
to stay abreast of the changes. We
believe that it would be difficult to
provide this recurring training to
individuals outside of the Corps.
Furthermore, it would be Imprudent
and inappropriate to transfer the appeal
, process to a third party, because the
Corps bears the statutory responsibility
for full Implementation of the regulatory
program. Finally, It Is noted that this
rule does not diminish the right of an
appellant to seek redress through the
Federal courts if he receives an
unfavorable decision from the Corps
upon completion of the administrative
appeal process.
Simplification and lower program ,
costs were also offered as reasons for
transferring the process to the private
sector. We are not convinced that
contracting the work would be simpler
or less costly than administering the
process Internally. Corps Involvement
In the appeal process would still be
necessary, particularly In the case where
permit denial decisions were remanded
to the district engineer for
reconsideration as the result of a
successful appeal. Further, contract
management responsibilities would
remain with the Corps, and could
constitute a substantial administrative
burden.
Efficiency was also cited by several
commenters in support of establishing
the appeal process as a single level of
review at the division level. We have
examined the issue, and agree that the
Operational efficiency of the appeal
process would be maximized by a one-
level review of the existing
administrative record.
Several commenters expressed the
view that the appeal process should "
grant authority to the division engineer
to unilaterally overturn the permit
decision of the district engineer.
Otherwise, it was argued, the best result
an appellant could hope for would be a
new, time-consuming review by the '
same regulatory project manager who
made the original permit
recommendation to the district
engineer. One commenter further stated
diat such a process is inconsistent with
the Corps own assertion that an
impartial, objective review requires the
final permit decision be made at the
division rather than district level.
We believe that the commenters failed
to appreciate the positive aspects of
limiting the review to ensure that the
requisite procedural steps have been
followed, that no material facts have
been overlooked or misinterpreted, and
that the permit decision is consistent
with established policies and official
guidance. If the division engineer
determines that the administrative
record is insufficient to support the
decision, or that the decision is
inconsistent with a requirement of law,
regulation, an Executive Order, or
officially-promulgated Corps policy or
guidance, the division engineer will
give specific instructions to the district
engineer regarding corrective actions
that must be taken in reconsidering die
permit decision. These instructions
would ensure that the district engineer's
subsequent decision would be based on
proper legal, factual, procedural, and
policy grounds. Remanding the decision
to the district engineer for corrective
action also affirms the principle that the
authority to make permit decisions rests
with the district engineer, who is the
person ultimately responsible for
implementation of the regulatory
program within his district.
Furthermore, from a workload
management perspective, Corps district
staff are better prepared than division
personnel to handle the day-to-day
requirements of the permit evaluation
process. In addition, an administrative
appeal process that required a full
public interest review would be more
time consuming than a review of
specific issues; and would in many
cases duplicate work already done at the
district level. Also, if after conducting
an appellate review, the division •
engineer has reason to believe that the
permit application should not be
• referred back to the district engineer for
a final decision, the permit application
may be elevated in accordance with 33 -
CFR 325.8(b)(4), and the division
engineer will make the permit decision-
Another commenter suggested
modifying the third sentence of Section
331.3(b) (2) to provide the RO more
flexibility. It was suggested that we
strike the wording, "shall not substitute
their judgment for that of the Corps
district (when reviewing technical
issues) unless the reviewed decision . •
was clearly erroneous or omitted a.
material fact," and replace it with,
"shall provide a recommendation on the
decision that is supported by clear and
convincing evidence." We believe that
under the original language, the RO has
sufficient flexibility under the review
process; however, we have reworded
diat section to clarify the meaning.
A comment was received suggesting
more involvement by Corps
headquarters to assure the consistency
of appealed decisions and to facilitate
adjustments in policy, as may become
necessary. We agree that there is a need
for Corps Headquarters to monitor the
appeal process, especially during die
period of initial implementation, but we
believe that routine, case-by-case
involvement is neither warranted nor
practical. Corps Headquarters will
provide training to die review officers to
ensure understanding of die policy and
procedures, and to ensure consistency
of the, process. Corps Headquarters will
also provide support on a case by case
basis in the evaluation of appealed
actions, if requested by a division
.engineer.
Permit decisions made by a division
engineer or higher authority may be
appealed to an Army official at least one
level higher than the decision-maker.
This higher Army official shall make the
decision on the merits of die appeal,. .
and may appoint a qualified individual
to act as a review officer (as defined in
Section 331.2 of this Part). References to
the division engineer in this Part shall-
be understood as also referring to
higher-level Army authority when that
authority is conducting an ;
administrative appeal.
Several commenters suggested that, • •
because of its unique organizational
structure, appeals arising from decisions
in the New England Division (NED)
office should be directed to Corps
headquarters rather than the division
engineer. The Corps has recently
reorganized the division offices. The
former New England Division-is now
the New England District, and reports to
the North Atlantic Division office. The
former New England Division is
consequently like the other Corps
districts, and there is no need to set up
a separate appeal process structure for
the New England regional office.
(3) The Identity and Rights of the
Appellant
. A number of commenters expressed.'
concerns that the proposed
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administrative appeaf process would
unduly restrict who may pursue an
appeal, that the scope of participation
by the appellant was ill-defined, and
- that appellants should not be required
to exhaust the administrative appeal
process before seeking relief in the
1 federal courts. . ' "
In response to the question regarding
who may pursue an appeal, the Corps
has decided that, since the appeal
process is limited at this time to the
appeal of denied permits, and to the
appeal of declined individual permits
appellants are properly limited to those
parties who have had their permit
applications denied, or to those parties
proffered an individual permit by the
district engineer. Expanding the appeal
nghts to third parties.would potentially
increase the number of appealable
actions by an order of magnitude or
more. This would simply be '
unworkable. With regard to the scope of
participation by the appellant, we
-believe that the procedures outlined in
33 CFR 331.6 and 331.7 adequately
.describe the scope of participation of '
.appellants and their agents. We'have
also added a definition of'the term
"agent(s)M to 33 CFR 331.2. With regard
to the need to exhaust the
administrative appeal process before
seeking relief in the Federal courts we
believe that the administrative appeal
process would serve to identify and
correct any procedural shortcomings of
the original permit evaluation process
and can lead to a resolution of problems
without the added burden to both
parties of an action in the Federal
courts. Furthermore, requiring an
appellant to exhaust the administrative
appeal process does not prevent the
appellant from seeking relief in the
Federal courts should the appellant not
be satisfied with the outcome of the
appeal. , ' .
In response to requests for
clarification of who may attend site
.investigations and appeal conferences to
provide support and representation for
the appellant, the rule has been written
to allow the appellant'sageht(s), as
defined in 33 CFR 331.Z, to participate
m the process. The appellant's agentifs)
may participate in the appeal
conference and in any site "
investigations, as outlined in 33 CFR
Ool./. . ' , • ,
Numerous comments were received
regarding third party involvement in the
administrative appeal process. A
number of commenters favored limiting
third party involvement to the extent
provided for in the proposed rule. Other
commenters requested expansion of
third party involvement. It was evident
from several comments that some
confusion exists regarding when third
parties may participate in the appeal
Process. In order to clarify these issues '
additional language hasijeen added to '
the rule iri'SaCFR SSL^and 33 CFR
331.10: The supplementary language is
intended to make it clear that there is no
• third party involvement in the appeal
process itself. However, we have
provided for interested parties to be
involved in those cases where the
division engineer has determined that
-the administrative record supporting a '
permit denial is inadequate, and has
remanded the decision to the district
engineer for further consideration. In
such a case, any party who commented
during the original permit review
process will be advised that the decision
is being reconsidered, and that they may
submit supplemental comments. If the
noted deficiency in the administrative
record is serious enough to merit
issuance of a new public notice; anyone
may submit comments. Under these
circumstances, the public interest
.review is starting anew, and there is no
requirement that interested parties must
have participated in the original permit
review process.
(4) Enforcement-Related Issues
One commenter suggested that under
me proposed rule the after-the-fact
(ATF) permit process should more
appropriately be titled an after-the-fact
^enforcement" process. We believe that
the existing language properly identifies
that a permit application is being
evaluated."after-the-fact" for an activity
that has already occurred. It would be
inappropriate to use the term "after-the-
fact enforcement" since a permit may be
granted as a result of the ATF review
process. In certain cases involving
alleged unauthorized activities, the
Corps will afford the responsible party
the opportunity to apply for an ATF
permit. Once any initial corrective
measures have been completed and the
activity otherwise meets the criteria in
33 CFR 326.3(e), evaluating an ATF
permit application is ah appropriate
response to an unauthorized activity If
an ATF permit is issued, such permit
will alleviate adverse effects to the
affected water of the United States
through special conditions and/or
compensatory mitigation requirements.'
The ATF process is one of several
administrative remedies available to the
Corps to resolve unauthorized activities
Several commenters responded to our
proposal to amend. 33 CFR326.3 (e) to
require a tolling agreement as a
prerequisite to filing an administrative
appeal of an adverse ATF permit
decision. Several commenters
recommended narrowing the scope of
the proposed tolling agreement. As a
.result of further consideration, we have
determined that it-would be appropriate
£>« *?^etoiling Cement, -and
Mb.6(e) has been amended by adding
subparagraph (v), B .
This new provision would mandate
that any party alleged to have engaged
f-3? unauthorized activity, who files an
ATF permit application that the Corps
processes, has thereby agreed to a
toeing of the Statute of Limitations, and
in addition; must sign an agreement to '
.that effect. Such tolling agreement
would state that, in exchange for the
Corps accepting the ATF permit
application and, if appropriate,
considering the appeal of any ATF
permit denial or declined individual
permit, the party has agreed that the
Statute of Limitations would be tolled
for one year after the final action has
been taken on'the ATF permit decision
or any succeeding administrative appeal
of an ATF permit .denial has been
finalized, whichever is later. The tolling
period would terminate one year after a
final decision on (1) the denial of an
ATF permit application; or, (2) an
appeal of such a denial decision
whichever is later..The one year post-
decision period is necessary in the event
that the United States determines that it
would be appropriate to file an action in
the Federal courts to obtain a
satisfactory remedy for the unauthorized
activity. .
The. tolling agreement would also
state that permit applicants will not
raise a Statute of Limitations defense in
any subsequent .enforcement action
brought by the United States, with
respect to the unauthorized activity for
the period of time in which the Statute
of Limitations is tolled. A party will be '
required to sign a separate tolling
agreement for each individual
unauthorized activity.
. One commenter asked that the third
sentence in Section 331.11 be revised to
read"* * * unless the Corps receives
an ATF permit* * *" because the
commenter felt the Corps could not
refuse a permit application. To the .
contrary, the Corps may refuse a permit
application when any one of four
situations exist as identified in 33 CFR
326.3(e)(1). For this reason, we believe .
that the current language is appropriate.
Another commenter recommended that
an appeal initiated in response to .the
Corps actions on unauthorized activities
should not be processed until resolution
of the alleged violation. As noted
earlier, although protection of the
environment is one of the Corps primary
goals, there are some circumstances
where allowing an appeal to proceed
before an enforcement action is
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Federal Register/Vol. 64, No.'45/Tuesday, March 9, 1999/Rules and Regulations
concluded is appropriate. Accordingly,
we are convinced that this decision
must remain subject to the discretion of
the district engineer.
• Comments were received questioning
the basis of the requirement that initial
corrective measures must be completed
before an appeal could be accepted. One
comment stated that this requirement
left an appellant little recourse; a result
that appeared to be contrary to the
purpose of these regulations. Another
believed that such a; requirement was
premature because it presupposes that
the appeal lacks merit. We disagree with
both of these arguments. First, interim
corrective measures are those actions
which the district engineer believes to
be necessary to prevent serious jeopardy
to life, property, or important public
resources. We believe that when such a
situation exists, the district engineer
must act promptly to require initial
corrective measures to ensure that any
unsafe or hazardous conditions are
corrected. Second, a determination to
require a corrective action does not
prejudice an appeal, since it does not
pass any judgment on the merits of the
overall project; it is simply intended to
eliminate or reduce unsafe conditions
while the appeal Is pending. Finally, the
appellant always has the option of
seeking relief from the Federal courts.
The proposed rule, in Section
331.11(b), concerned the calculation of
potential penalties for unauthorized
activities. That provision stated that
"(A]ny penalty imposed, as determined
In the appropriate forum by the
appropriate decision-maker, may also
Include in the calculation of penalty the
time period involving the appeal
process." This provision elicited
comments stating that it was both
ambiguous and potentially unlawful.
The Corps takes no position on the
legality of this provision. However, we '
have omitted this provision for several
reasons. First, this particular provision
was somewhat ambiguous in that it was
not clear whether the time period of the
appeal process could be used to increase
or decrease the penalties for
unauthorized activities. Second, the
Corps realizes that it cannot dictate to
a Federal court that the time period for
the appeal process must be included in
determining the penalty for
unauthorized activities. A court must
Independently weigh the facts of a
particular case in order to determine the
appropriate extent of penalties for that
case. By omitting this language, the
Corps is not waiving its right to argue
before a court that the time period for
the appeal process should be included
In the calculation of the penalty for
those unauthorized activities. This ,
explanation serves as notice to every
appellant regarding ATF permit
applications that the time it takes for an
appeal to~be resolved by the Corps may
be included in the calculation of
penalties for the unauthorized activities.
(5) Suggested Procedural Changes and
Clarifications for Specific Sections
Section 331.3(a): One commenter
suggested including "prompt" with
"fair, reasonable, and effective" in
describing the administrative appeal
process to emphasize the Corps
commitment to timely action on
appeals. We agree that timely resolution
of appeals is vital to the success of this
program, as is reflected by the inclusion
of time frames in the rule, and have
revised this section to include the word
"prompt1.
Section 331.3(a)(2): One commenter
suggested including the phrase "based
on the merits of the appeal"'in the first
sentence. We agree with this suggestion,
and have clarified the first sentence of
33 CFR 331.3(a)(2) to reflect this . .
suggestion.
Section 331.4: Several commenters •
noted that the proposed rule did not
contain a list of items that must be
present in the administrative record that
would be the s'ubject of an
administrative appeal. Because the
administrative record for individual
cases varies with the nature of each
proposal, we do not believe it is
necessary to identify items that could" be
In the administrative record. Each
administrative record typically contains
many common elements, such as a
determination of jurisdiction, the permit
application and supplemental
information provided by the applicant,
the public notice and mailing list,
comments received in response to the
notice, NEPA documentation (e.g.,
environmental assessment) and
statement of findings (or a combined .
decision document), 404(b)(l)
Guidelines evaluation, and related
documents and correspondence.
One commenter suggested that the
last three proposed words of Section
331.4 be'deleted. We have reworded the
paragraph in order to clarify that a
standard form for submission of a
Request For Appeal (RFA) will be
provided to the potential appellant,
along with the Notification of Appeal
Process (NAP) standard form.
Section 331.5: This section has been
modified to clarify the criteria for
consideration of an appeal.
Additionally, the criteria will be clearly
. outlined in the RFA form sent to the
affected party with the NAP.
Section 33L5(b)(l): One commenter -
suggested that it may not be clear to
permit applicants that endorsement of a
proffered individual permit indicates
acceptance of the permit in its entirety,
and effects a waiver of the applicant's
right to appeal the terms and conditions
of the permit. We acknowledge that the
wording of the preamble and the
proposed rule may not be clear enough.
Therefore, the wording of the final rule
has been modified to state clearly that
the acceptance of an individual,permit
results in the waiver of an applicant's
right to appeal the terms and conditions
of the permit. This provision will also
be explained in the notification of
applicant options (NAO) form attached
to the proffered individual permit sent
to an applicant.
Section 33'1.6: One commenter
suggested that we change the rule so
that the RFA must be filed within 60
days of the date that the applicant
receives the NAP, rather than within 60
days of the date of die NAP. We have
retained the wording of the proposed
rule, because it allows the 60 day time
period to be measured from a clear and
verifiable date, whereas the date of
receipt by the applicant would be
difficult to verify.
One commenter suggested that it .
would be difficult for appellants to
provide their reasons for appealing a
permit denial within 60 days unless the
Corps provides a rationale for the permit
denial as part of the denial notification.
In response to this request, die district
engineer will provide a copy of the
decision document widi the NAP where
the permit application has been denied.
In response to one commenter who
requested that permit decisions be made
available to the public, permit decisions
are currently available to die public
under standard Freedom of Information
Act procedures. ,
Section 331.7(d): Several commenters
suggested that the RO should' be
required to notify the appellant a
minimum number of days prior to the
date of the appeal conference to ensure
that the appellant has sufficient time to
schedule and attend the meeting. We
agree, and have incorporated a
requirement into die rule that provides
that the appellant be given 15 days
notification of die date of die appeal
conference (see 33 CFR 331.7(d)(l)).
One commenter suggested, that it be
made mandatory diat complete
transcripts be prepared for all
presentations and discussions occurring
during the appeal conference. We do not
agree with that suggestion, because we
believe diat the cost of doing so would
be burdensome, and diat requiring
transcripts would considerably delay
the appeal process. However, we have
required tiiat die RO prepare a
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memorandum for'the record (MFR) to
. document the appeal conference- (See'
331.7(d) (7).) We believe that this
process is adequate and;not unduly
burdensome or costly.
Section 331.7(e): One commenter
* • • i—/' v^iii^ *-i_/iiiiiit:iiLtrl
suggested, that the RO be allowed to
communicate with both the appellant
and the Corps district during the appeal
process. Another.'cornmenter concurred
with ourinitial proposal to prohibit'any
conversations between the RO and the
parties to the appeal, and also suggested
that the regulation should explicitly
prohibit any conversations regarding the
appeal between the RO and any third
party. The final rule has been revised to
allow the RO to communicate with all .
parties to the appeal, as well as outside
sources. (See Sections 331.7(d) and -
331.3(b)(2).) We anticipate that the RO
may need to question the appellant and
the Corps district staff to clarify the
administrative record, and may also
need to consult with technical experts,
, Corps Headquarters staff, Corps Office'
of Counsel, or other ROs, if the appeal
- raises technical issues, questions of
' national policy, interpretation of
regulations, or legal or programmatic ' ,
.concerns.
Section 331.8(b)i Several commenters
suggested that a specific time period be
included for soliciting comments from
agencies and interested parties
following a determination by the
division engineer to remand the permit
denial decision to the district engineer
for reconsideration." Some commenters
suggested a minimum of 15 days for
opportunity to comment. We have
provided additional information on time
•frames in this rule {see Section
33l:lO(b).) We have also clarified that
where;the reconsideration by the district
engineer may involve substantial
changes in the potential impacts of the
project, a new public notice will be
issued in accordance with the
provisions of 33 CFR Part 325.
Some commenters suggested that
there be an absolute time limit of 30 to
45 days for the district engineer to make
a final decision on a remanded permit
denial. We share the desire of the
commenters for timely decisions;
however, appealed permit denial cases
are likely to be controversial, and/or
may involve difficult issues that will
require further agency coordination and
public participation. Since we cannot
anticipate all such issues and
circumstances, wehave elected hot to
establish any deadlines for the
reconsideration of decisions remanded
to the district engineer. '
Section 331.10: Some commenters
recommended that the district engineer
not be required to re-open the public
interest review process on remand of a
permit denial decision. Another
recommended that the public interest
review process be re-opened for all
remanded permit decisions. Depending
on the issues raised in each remanded
permit decision, there may be laws,
regulations or other guidance that '
would require the re-opening of the
public interest review process,
including opportunity for comments
from the public and/or Federal and
State agencies. Therefore, we are neither
requiring nor prohibiting this practice,
but are retaining the original wording
that makes this determination subject to
the discretion of the district engineer.
One commenter suggested that the
rule be clarified regarding the 404 (q)
elevation process. The administrative
appeal regulation does not change any
authorities or requirements of Section
404(q)'of the Clean Water Act. Currently
the U.S. Army Corps of Engineers has
Memoranda of Agreement, under
Section 404(q), with EPA, FWS and
NMFS whereby policy issues and'
certain permit decisions can be elevated
to higher headquarters for a decision.
This regulation does not affect the
Section 404(q) MOA elevation process.
Specifically, policy issues can be raised
at any time and the Corps will send
Notice of Intent to Issue letters at the
end of the appeal process, for any permit'
decision that qualifies pursuant to the
Section 404(q) MO As. We have added a
statement to the end of Section
331.10(b) to clarify that nothing in this
rule precludes the agencies' authorities
pursuant to Section 404(q) of the Clean
Water Act.
the appeal process as they gain
experience. We will continually
evaluate the cost and results of our
appeal process. This evaluation may
result in future adjustments to ensure'-
that costs of the appeal process are
minimized, and that the consistency
efficiency and timeliness of our
decisions are maximized.
III. Exhaustion of Administrative
Remedies !
to Darby v.Cisneros, 113 S.Ct, 2539
(1993), the Supreme Court recently held
that persons subject to Federal agency -
regulation need not exhaust
administrative remedies before filing a
lawsuit in Federal district court, unless
a statutory or regulatory provision
requires such exhaustion. In response to
Darby v. Cisneros, the Corps is
including section 331.12 in this rule to
make it explicit that persons dissatisfied
with permit decisions must avail
themselves of the administrative appeal
process established in this rule, and
have received a final Corps decision on
the merits of the appeal, prior to seeking
redress in the Federal courts.
(6) General Expressions of Opposition
and Support
A number of comments were received
related to the estimated costs of
administering the proposed
administrative appeal process. One
commenter indicated that our estimated
costs were too low. Two commenters
said that our estimated costs were too
high. Though the Corps has not had any
experience with such a program, we
-believe that our original cost estimates
are reasonable, It is probable that, at the
start of the appeal process
implementation period, there may be a
greater number of appeals than we
anticipate. Consequently, the appeal
process may be slower than desired due
to the workload. We anticipate that as
the appeal process matures, appellants
will be less inclined tp.flle appeals in
questionable or speculative cases; since
there will be an established record of
consistent regional and national
decisions, and ROs will have become
increasingly proficient in implementing
IV. Application of Rule to Prior
Regulatory Decisions
Affected parties may.appeal permit
denial decisions and declined permits
where the permit denial or proffered
individual permit occurs after March 9
1999. Such requests will be accepted for
administrative appeal in accordance
with this regulation. Permit denials or •
proffered permits that were transmitted
in writing to an affected party prior to
the publication date of the final
regulation will not be accepted under
thejippeal process. Additionally, if large
numbers of RFAs are received under
this provision, an RO may delay the
initiation of processing an RFA for up
to 6 months after the effective date of
these regulations, if necessary.
One commenter asked whether the
availability of an administrative appeal
process would affect in-process
litigation, initiated in response to a
permit denied with prejudice after the "
date of the publication of the final rule
in the Federal Register. That is, would
this rule render the case as not ripe for
judicial review. The appeal of permit
denials and declined individual permits
will be accepted by the Corps starting
on today's date. Therefore, applicants
must use the appeal process as of
today's date and exhaust such
administrative processes before seeking
relief in the Federal courts.
Furthermore, in it's discretion, the
United States may agree to a suspension
of on-going litigation if the litigant
wishes to seek relief through initiation
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Federal Register/Vol. 64, No. 45/Tuesday, March 9; .1999/Rules and Regulations
of an administrative appeal, and if the
government believes that such a
suspension would be appropriate. The
suspension of litigation to pursue an
administrative appeal will not be
construed as a waiver of any right to
resume litigation in the event that an
administrative remedy acceptable to the
applicant is not achieved.
V, Environmental Documentation
We have determined that this action
does not constitute a major Federal
action significantly affecting the quality
of the human environment, because the
Corps has prepared appropriate
environmental documentation.
Including an Environmental Impact
Statement (EIS) when required, for all
permit decisions. Therefore,
environmental documentation under the
National Environmental Policy Act
(NEPA) is not required for this rule.
Moreover, this proposed regulation for
administrative appeals only establishes
a one-level review for denied permits
and declined Individual permits, as
needed to ensure that applicable
regulations, policies, practices, and
procedures (Including the preparation of
appropriate environmental
documentation) have been appropriately
followed.
VI. Executive Order 12291 and the
Regulatory Flexibility Act
The Corps does not believe that this
final rule meets the definition of a major
rule under Executive Order 12291, and
we dierefore do not believe that a
regulatory Impact analysis Is required.
This final rule should reduce the burden
on the public by offering an
administrative appeal process for
certain Corps decisions,'and, in some
Instances, should allow the applicant to
avoid the more time-consuming and
costly alternative of challenging a Corps
permit decision In the Federal courts.
We also do not believe that this final
rule will have a significant Impact on a
substantial number of small entitles
pursuant to Section 605 (b) of the
Regulatory Flexibility Act of 1980,
because this final rule only creates an
optional review of certain decisions •
through an administrative appeal
process. The final rule should be less
time consuming and less costly to
permit applicants who want to appeal a
decision with which they disagree, but
currently can only seek to have the
decision reviewed through the Federal
courts. Furthermore, since the
administrative appeal would be optional
at the applicant's or landowner's
discretion, we have minimized the
potential of any increased regulatory
burden on small entities. If an applicant
or landowner chooses to forego an
appeal, the net effect of the final rule
would be zero.
Note 1: The term "he" and its derivatives
Used in these regulations' are generic and
should be considered as applying to both
male and female.
List of Subjects
33 CFR Part 320
Environmental protection,
Intergovernmental relations, Navigation,
Water pollution control, Waterways.
33 CFR Part 326 • • • '
Investigations, Intergovernmental .
relations, Law enforcement, Navigation,
Water pollution control. Waterways.
33 CFR Part 331
Administrative appeal, Navigation, .
Waterways, Environmental protection,
Water pollution control.
Dated: March 3, 1999.
Joseph W.Westphal,
Assistant Secretary of the Army (Civil Works).
Department of the Army.
Comments regarding new levels of
bureaucracy and the legality of the
proposed rule were adequately
addressed In the preamble to the
proposed rule. "As noted in the preamble
to this final rule, numerous substantive
and procedural changes have been
adopted as a result of the comments
received. Accordingly, 33 CFR Parts 320
and 326 are hereby amended-and 33
CFR Part 331 is added as follows:
PART 320—GENERAL REGULATORY
POLICIES
1. The authority citations for Part 320
continue to read as follows:
Authority: 33U.S.C. 401 etseq.; 33 U.S.C.
1344; 33 U.S.C. 1413.
2. Section 320.1 (a) (2) is amended by
revising the final sentence to read as set
forth below.
§ 320.1 Purpose and Scope.
(a) * * *
(2)* * *,A district engineers
decision on a permit denial or a
declined individual permit Is subject to
an administrative appeal by the affected
party in accordance with the procedures
and authorities contained in 33 CFR
Part 331. Such administrative appeal
must meet the criteria in 33 CFR 331.5;
otherwise, no administrative appeal of
that decision is allowed. The terms
"permit denial" and "declined permit"
"are defined at 33 CFR 331,2. There shall
be no administrative appeal of any
issued individual permit that an
applicant has accepted, 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 (see 33 CFR 331.5(b)(l)). An
applicant must exhaust any
administrative appeal available
pursuant to 33 CFR Part 331 and receive
a final Corps decision on his permit
application prior to filing a lawsuit in
the Federal courts based on a permit
denial, or the terms and conditions of a
declined permit.
PART 326—ENFORCEMENT
1. The authority citations for Part 326
continue to read as follows:
Authority: 33 U.S.C. 401 etseq.; 33 U.S.C.
1344; 33 U.S.C. 1413. ' •
2. Section 326.3 (e) is amended by
adding a new paragraph (e)(l) (v) to read
as follows:
§326.3 Unauthorized Activities.
* * * • * *
(e)
a:
* * *
(v) No after-the-fact permit
application will be accepted unless and
• until the applicant has furnished'a
signed statute of limitations tolling
agreement to the district engineer. A
separate statute of limitations tolling
agreement will be prepared for each
unauthorized activity. Any person who
applies for an after-the-fact permit,
where the application is accepted and
processed by the Corps, thereby agrees
that the statute of limitations regarding
any violation associated with that
application is tolled until onte year after
the final Corps decision, as defined at
33 CFR 331.10. Moreover, die applicant
for an after-the-fact permit must also
memorialize that agreement to toll the
statute of limitations, by signing an
agreement to that effect, in exchange for
the Corps acceptance of the after-the-
fact permit application, and/or any
administrative appeal. Such agreement
will state that, in exchange for the Corps
acceptance of any after-the-fact permit
application and/or any administrative
appeal associated with the unauthorized
activity, the responsible parry agrees
that the statute of limitations will be
tolled until one year after the final ' .
Corps decision on the after-the-fact •
permit application or, if there is an
administrative appeal, one year after the
final Corps decision as defined at 33
CFR 331.10, whichever date is later.
Part 331 Is added to read as follows:
PART 331—ADMINISTRATIVE APPEAL
PROCESS
Sec.
331.1 Purpose and policy.
331.2 Definitions.
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331:3 Review officer. .
331.4 Notification of'appealable actions.
331.5 Criteria. . •',..•
3.31.6 Filing an appeal.
331.7 Review procedures.
331.8 Timeframes for final appeal
decisions.
331.9 Final appeal decision.
331.10 Final Corps decision.
331.11 Unauthorized activities.
331.12 Exhaustion of .administrative
remedies. • ,
Appendix A—Administrative Appeal Proces.
Appendix B-r-Applicant Options with
. Proffered Individual Permit.
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C.
1344; 33 U.S.C. 1413.
§ 331.1 Purpose and policy.
(a) General. The purpose of this Part
is to establish policies and procedures
to be used for the administrative appeal
of permit applications denied with
prejudice, and for the .administrative
appeals of declined individual permits.
The appeal process will allow the
affected party to pursue1 an
administrative appeal of certain final
Corps of Engineers decisions.with
which they disagree. The basis for an
appeal, and the specific policies and
procedures of the appeal process, are
described in the following sectipns. It
. shall be the policy of the Corps of
Engineers to promote and maintain an
administrative appeal process that is
independent, objective, fair, prompt,
and efficient.
(b) This administrative appeal process
provides only for the appeal of permit
denials-or declined individual permits..
(c) Permit decisions made by a
division-.engineer or higher authority
may be appealed to an Army official at
least one.level higher than the decision-
maker. This higher Army official shall
make the decision on the merits of the
appeal, and may appoint a qualified
individual to act as a review officer (as
defined in §331.2 of .this Part).
References to the division engineer in
this Part shall be understood as also
referring to higher-level Army authority
when that authority is conducting an
administrative appeal.
§331.2 Definitions.
The terms and definitions contained
in 33 CFR Parts 320 through 330 are
applicable to this regulation. In
addition, the following terms are
defined for the. purposes of Part 331:
Affected party means a permit
applicant who has received a permit
denial, or who has declined a proffered
•individual permit. ' '
Agent(s) means the affected party's
business partner, attorney, consultant,
engineer, planner, or any individual
with legal authority to represent the
appellant's interests. -• •
Appealable action, means a permit
denial, or a declined individual permit,
as these terms are.defined below.
Appellant means an affected party
who has filed an appeal of a permit
denial or declined individual permit
under the criteria and procedures of
these regulations.
Declined permit means a proffered
individual permit, including a letter of
permission, that an applicant has
refused to accept, because he has
objections to the terms and conditions „
therein. A declined permit can also be
an individual permit that the applicant ,
originally accepted, but where such
permit was subsequently modified by
the district engineer, pursuant to 33 CFR
325.7, in such a manner that the
resulting permit contains' terms and
conditions that lead the applicant to
decline the modified permit, provided
that the'applicant has not started work
in waters of the United States
authorized by such permit. Where ah
applicant declines a permit (either
initial or modified), the applicant does
not have a valid permit to conduct
regulated activities in waters of the
United States, and must not begin
construction of the work requiring a
Corps permit unless and'until the
applicant receives and accepts a valid -
Corps permit. .,...- :
Denial determination means a letter
from the district engineer detailing the
reasons a permit w,as denied with :
prejudice. The decision document for .
the project will be attached to the denial
determination in all cases.
Notification of Applicant Options •
(NAO) means a fact sheet explaining an
applicant's options'with a proffered
individual permit under the
administrative appeal process,
Notification of Appeal Process (NAP)
means a fact sheet that explains the
criteria and procedures of the
administrative appeal process. Every
permit denial, and every proffered ,
individual permit returned to the
applicant for reconsideration after
review by the district engineer in
accordance with § 331.6(b), will have an
NAP form attached.
Permit denial means a written denial
with prejudice (see 33 CFR 320.4(j)) of
an individual permit application as
defined in 33 GFR 325.5(b).
Request for appeal (RFA) mearis the
affected party's official request to
initiate the appeal process. The RFA
must include the name of the affected
.party, the Corps file number of the
denied or declined individual permit
application, the reason(s) for the appeal,
and any supporting data and
information. A grant of right of entry for
the Corps to the project site is a .
condition of the RFA. A standard RFA
form will be provided to the affected ' •
party with the NAP form. The affected •
party initiates the administrative appeal
process by completing the RFA and
returning it to the appropriate Corps of
Engineers division office.
Review officer (RO) means the Corps,
official responsible for assisting the
division engineer or higher authority
responsible for rendering the final
decision on the merits of an appeal.
§331.3 Review officer.
(a) Authority. (1) The division
engineer has the authority and
responsibility for administering a fair,
reasonable, prompt, and'effective
.administrative appeal process. The
division engineer may act as-the review
officer (RO), or may delegate, either
generically or on a case-by-case basis,
any authority or responsibility
described in this Part as that of the RO.
However, the division engineer may not
delegate any authority or responsibility
described in this Part as thatof the
division engineer. Regardless of any
delegation of RO authority or.
responsibility, trie division engineer,
retains overall responsibility for the
administrative appeal process. "
(2) The RO will assist the division
engineer in reaching and documenting
the division engineer's decision on the ,
merits of ah appeal, if the division
engineer has delegated this "
' responsibility as explained above. The
division engineer has the authority to
make the final decision on the merits of
the appeal. Neither the RO nor the
divisionengineer.has the authority to
make a final decision to issue or deny .
any particular-permit, pursuant to the
administrative appeal process
established by this Part. The authority to
issue or deny permits remains with the
district-engineer. However, the division
engineer may exercise the authority at.
33 CFR 325.8(c) to elevate any permit
application, and subsequently to make
the final permit decision. In such a case,
any appeal process of the district
engineer's initial decision is terminated.
If a particular permit application is
elevated to the division engineer
pursuant to 33 CFR. 325.8(c), and the
division engineer's decision on the ' ,
permit application is a permit denial, or
results in a declined permit, that permit
denial or declined permit would be
subject to an administrative appeal to
the Chief of Engineers.
. (3) Qualifications. The RO will be a
Corps employee with extensive
knowledge of the Corps regulatory
program. Where the permit decision
"being appealed was made by the
division engineer or higher authority, a
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Corps official at least one level higher
than the decision-maker shall make the
decision on the merits of the RFA, and
this Corps official shall appoint a
qualified individual as the RO to
conduct the appeal .process.
(b) General. (1) Independence. The
RO will not perform; or have been
involved'with, the preparation, review,
or decision-making of the action being
appealed. The RO will be independent
and impartial in reviewing any appeal,
and when assisting the division
engineer to make a decision on the
merits of the appeal.
(2) Review. The RO will conduct an
independent review of the
administrative record to address the
reasons for the appeal cited by the
applicant in the RFA. In addition, to the
extent that it is practicable and feasible,
the RO will also conduct an
independent review of the
administrative record to verify that the
record provides an adequate and
reasonable basis supporting the district
engineer's decision, that facts or
analysis essential to the district'
engineer's decision have not been
omitted from the administrative record,
and that all relevant requirements of.
law. regulations, and officially-
promulgated Corps policy guidance
have been satisfied. Should the RO
require expert advice regarding any
subject, he may seek such advice from
any employee of the Corps or of another
Federal or state agency, or from any
recognized expert, so long as that person
had not been previously involved in the
action under review.
§ 331.4 Notification of appealable actions.
Affected parties will be notified in
writing of a Corps decision on an
appealable action. For permit denials,
the notification must Include a copy of
the decision document for the permit
application, an NAP fact sheet and an
RFA form. For proffered individual
permits, when the Initial proffered
permit is sent to the applicant, the
notification must Include an NAO fact
sheet. For declined permits (i.e.,
proffered individual permits that the
applicant refuses to accept and sends
back to the Corps), the notification' must
Include an NAP fact sheet and an RFA
form. Additionally, an affected party has
the right to obtain a copy of the
administrative record.
§331.5 Criteria.
(a) Criteria for Appeal. (I)" Submission
of RFA. The appellant must submit a
completed RFA (as defined at § 331.2) to
the appropriate division office In order
to appeal a permit denial, or a declined
individual 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 a permit
denial, or a declined Individual 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 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 die Section 404(b)(l)
Guidelines, or use of incorrect data.
(b) Actions not appealable. An action
or decision is not subject to an
administrative appeal under diese
regulations if it falls into one or more of
the following categories:
(1) an individual permit decision
(including a letter of permission or an
individual, permit with special
conditions), where the permit has been.
accepted and signed by the permittee.
By signing the permit, the applicant
waives all right to appeal the terms and
conditions of die permit, unless die
authorized work has not started in
waters of the United States, and that
issued permit is subsequently modified
by die district engineer pursuant to 33
CFR 325.7;
(2) any site specific matter that has
been die subject of a final decision, of
die 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 die
controlling factor cannot -be changed by
die Corps decision-maker (e.g'.,-the
requirements, of a binding statute,
regulation, state Section 401 water
quality certification, state Coastal Zone
Management Act disapproval, etc. (See
33 CFR 320.4(0);
(5) a permit denial case where die
applicant has subsequently modified die
proposed project, because this would
constitute an amended application that
would require a new public Interest
review, ratiier dian an appeal of die
existing record and decision; or
(6) any request for the appeal of a
denied permit or a declined individual
permit, where die RFA has not been
received by the division engineer within
60 days of the date of the NAP.
§ 331 .6 Filing an appeal.
(a) An affected party appealing a
permit denial or declined permit must
submit an RFA that is received by the
division engineer within 60 days' of the
date of die NAP. A flow chart of the
appeal process is shown in Appendix A.
(b) In die case where an applicant
objects to a proffered individual permit,
die appeal process proceeds as follows.
To initiate the appeal process regarding
die terms and conditions of the permit,
die applicant must write a letter to die
district engineer explaining his
objections to die permit. The district
engineer, upon evaluation of the
applicant's objections, may: modify die
permit to address all of the applicant's
objections, or modify die.permit to - •
address some, but not all, of die
applicant's objections, or not modify die
permit, having determined that die
permit should be issued as previously
written. In die event that die district
engineer agrees to modify die proffered
individual permit to address all of die
•applicant's objections, die district >
engineer will issue such modified
permit, enclosing an NAP form as well.
Should die district engineer modify die
proffered individual permit to address
some, but hot all, of the applicant's -
objections, die district engineer will
send die applicant such modified
permit, an NAP form, and the decision
document for die project. If die district
engineer does not modify die proffered
individual permit, die district engineer
will offer die unmodified permit to die .
applicant a second time, enclosing an
NAP form and a copy of die decision
document. If die applicant still has
objections, die applicant may decline
such modified or unmodified permit;"
this declined individual permit may be
appealed to die division engineer upon .
submittal of a complete RFA. form. The
completed RFA must be received by die
division engineer widiin 60 days of die
NAP. A flow chart of an applicant's
options for a proffered individual
permit is shown in Appendix B.
(c) The district engineer may not
delegate his signature authority to deny
die permit widi prejudice, or to return •
an individual permit to die applicant
widi unresolved objections (see §§ 331.6
(d) Affected parties may appeal
permit denials or declined Individual •
permits where die permit denial or die
proffered individual permit occurs after
March 9, 1999, but may not appeal
permit denials or declined permits
where die Cbrps took that action before
March 9, 1999. All appeals must meet
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the criteria set 'forth in § 331.5 of-this
Part.
§331.7 Review procedures.
(a) General.Jhe administrative appeal
. process for permit denials and declined
individual permits is a one level appeal,
normally to the division engineer. The
appeal process will normally be
conducted by the RO. The RO will
document the appeal process, and assist'
the division engineer to make a decision
on the merits of the appeal. The division
engineer may participate in the appeal
process as the division engineer deems
appropriate. The division engineer will-
make the decision on the merits of the
appeal, and provide any instructions as
appropriate, to the district engineer.
(b) Requests for the appeal of permit
denials or declined individual permits •
Upon receipt of an RFA, the Corps shall
review the RFA and the administrative
record to determine whether the request
meets the criteria for appeal-. If the RFA
meets the criteria for appeal, the RO will
so notify the appellant in writing within
. 30 days of the receipt of the RFA. If the
RO believes that the RFA does not meet
toe criteria for appeal (see § 331.5), the
RO will make a recommendation on the
RFA to the division engineer. If the
division engineer determines that the
RFA is not acceptable, the division
engineer will notify the appellant of this
.determination by a certified letter
detailing the reason(s) why the appeal
failed to meet the criteria for appeal. No
further administrative appeal is
available, unless the appellant revises
toe RFA to correct the deficiencies
noted in the division engineer's letter.
The revised RFA must be received by
the division engineer within 30 days of
the datie of the certified letter refusing
the initial RFA. If the Corps determines
that the revised RFA still fails to meet
the criteria for appeal, toe division .
engineer will notify toe appellant of this
determination by a certified letter
within 30 days of toe date of toe receipt
of toe revised RFA, and will advise the
appellant that the matter is not eligible
for appeal. No further RFAs will be
accepted after this point
(c) Site Investigations, Within 30 days
of receipt of a complete RFA, toe RO
should determine if a site investigation
is needed to clarify toe administrative
record. The RO should conduct any
such site investigation within 60 days of
receipt of a complete RFA. The RO may
also conduct a site, investigation at the
request of toe appellant, provided toe
RO has determined that such an
investigation would be of benefit in
interpreting the administrative record.
The appellant and toe appellant's
authorized agent(s) must be provided an
opportunity to participate in any site
, investigation, and will be given 15 days
notice of any site investigation. The RO
will attempt to schedule the site
. investigation at toe earliest practicable -
time acceptable to both the RO and the
appellant. The site investigation should
be scheduled in conjunction with the
appeal review conference, where
practicable. The R07 toe appellant, toe
appellant's agent(s) and the Corps
district staff are authorized participants
at toe site investigation. The RO may
also -invite any other party toe RO has
determined to be appropriate, such as
any technical experts consulted fay toe
.Corps. *
(d) Appeal Conference. Conferences -
held in accordance with this rule will be
informal, and -will be chaired by toe RO.
The purpose of toe appeal conference is
to provide a forum that allows the
participants to discuss freely all relevant
issues and material facts associated with
toe appeal. An appeal conference will
be held for every appeal of a permit
denial or a declined individual permit'
unless toe RO and toe appellant
mutually agree to forego a conference.
The conference will take place within
60 days of receipt of an acceptable RFA
unless toe RO determines that
unforeseen or unusual circumstances
require scheduling toe conference for a
later date. The purpose of the
conference will be to allow the
appellant and toe Corps district
representatives to discuss supporting'
data and information on issues
previously identified in toe
administrative record, and to allow the
RO toe opportunity to clarify elements
of toe administrative record.
Presentations by the appellant and the
Corps district representatives may
include interpretation, clarification, or
explanation of toe legal, policy, and
factual bases for their positions. The
conference will be governed by toe
following guidelines;
(1) Notification. The- RO will set a
date, time, and location for toe
conference. The RO will notify toe
appellant and toe Corps district office in
writing within 30 days of receipt of the
RFA, and not less than 15 days before
toe date of the conference.
(2) Facilities. The conference will be
held at a location that has suitable
facilities and that is reasonably
convenient to the appellant, preferably
in toe proximity of toe project site.
Public facilities available at no expense
are preferred. If a free facility is not
available, toe Corps will pay the cost for
toe facility. •
(3) Participants. The RO, toe
appellant, the appellant's agent(s) and
toe Corps district staff are authorized
participants in the conference. The RO
may also invite any other party the RO
has determined to be appropriate, such
as any technical experts consulted by
toe.Corps, adjacent property owners or
federal or state agency personnel to
clarify elements of toe administrative
record. The division engineer and/or toe
district engineer may attend the
conference at their discretion. If toe
appellant or his authorized agent(s) fail
to attend toe appeal conference, toe
appeal process is terminated, unless toe
RO excuses the appellant for a
justifiable reason. Furthermore, should
toe process he terminated in such a
manner, the district engineer's original
• decision on the appealed action will be
sustained.
(4) The role of the RO.The RO shall
be in charge of conducting toe
conference. The RO shall open toe •
conference with a summary of toe
policies and procedures for conducting
toe conference. The RO will conduct a
fair and impartial conference, hear and,
fully consider all relevant issues and
facts, and seek clarification of any issues
of-toe administrative record, as needed,
to allow toe division engineer to make
a final determination on the merits of
toe appeal. The RO will also be
responsible for documenting toe appeal
conference.
(5) Appellant rights. The appellant,
and/or toe appellant's authorized
agent(s), will be given a reasonable
opportunity to present toe appellant's
views regarding the subject permit
denial or declined permit.
(6) Subject matter. The purpose of toe
appeal conference will be to discuss toe
reasons for appeal contained in the
RFA. Any material to toe administrative
record may be discussed during toe
conference, but toe discussion should
be focused on relevant issues needed to .
address toe reasons for appeal contained
in toe RFA. The RO may question toe
appellant orthei Corps representatives
with respect to interpretation of
particular issues in toe record, or
otherwise to clarify elements of toe
administrative record. Issues not
identified to toe administrative record
by the date of toe NAP for the
application may not be raised or
discussed, because substantive new
information or project modifications
would be treated as a new permit
application (see§331.5(b)(5)).
(7) Documentation of the appeal
conference. The appeal conference is an
informal proceeding, intended to
provide clarifications and explanations
of toe; administrative record for the RO
and toe division, engineer; it is not '
intended to supplement the '
administrative record. Consequently,
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Federal Register/Vol. 64, No. 45/Tuesday, March .9, 1999,/Rules and Regulations
the proceedings of the conference will
not be recorded verbatim by the Corps
or any other party attending the
conference, and no verbatim transcripts
of the conference will be made.
However, after the conference, the RO
will write a memorandum for the record
(MFR) summarizing the presentations
made at the conference, and will
provide a copy of that MFR to the
division engineer-, the appellant, and the
district engineer.
(8) Appellant costs. The appellant
will be responsible for his own expenses
for attending the appeal conference.
(e) Basis of decision and
communication with the RO. The appeal-
of a permit denial or a declined
individual permit.is limited to the
Information contained in administrative
record by the date of the NAP for the
application, the proceedings of the
appeal conference, and any relevant
Information gathered by the RO as
described in §331.5 of this Part. Neither
the appellant nor die Corps may present
new Information not already contained
In the administrative record, but botii
parties may interpret, clarify or explain
issues and information contained in the
record.
(Q Applicability of appeal decisions.
Because a decision to deny or condition
a permit depends on the facts, '
circumstances, and physical conditions
particular to the specific project and site
being evaluated, appeal decisions would
be of little or no precedential utility.
Therefore, an appeal decision of the
division engineer is applicable.only to
die Instant appeal, and has no other
precedential effect. Such a decision may
not be cited in any other administrative
appeal, and may not be used as
precedent for the evaluation of any
other permit application. While
administrative appeal decisions lack
precedential value and may not be cited
by an appellant or a district engineer in
any odier appeal proceeding, the Gorps
goal is to have the Corps regulatory
program operate as consistently as
possible, particularly with respect to
Interpretations of law, regulation, an
Executive Order, and officially-
promulgated policy. Therefore, a copy
of each appeal decision will be
forwarded to Corps Headquarters; those
decisions will be periodically reviewed
at the headquarters level for consistency
with law. Executive Orders and policy.
Additional official guidance will be
issued as necessary to maintain or
Improve the consistency of the Corps'
appellate and permit decisions.
§331.8 Timefrattles for final appeal
decisions.
The Corps will make a final decision
on the merits of die appeal at the
earliest practicable time, in accordance
widi the time limits set forth below. The
administrative appeal process is
initiated by die receipt of an RFA by the
division engineer. The Corps will
review die RFA to determine whedier
the action is appealable. If die division
engineer determines that the action is
not appealable, die division engineer
will notify the appellant accordingly
widiin 30 days of die receipt of die RFA.
If the division engineer determines diat
die action is appealable and the RFA is
complete, die RO will request die
administrative record from the district
engineer. The division engineer will
make a final decision on the merits of
the appeal within190 days of the receipt
of die complete RFA.
§ 331.9 Final appeal decision.
(a) In accordance with die authorities
Contained in § 331.3 (b),' die division •
engineer will make a decision on die
merits of die appeal. While reviewing an
appeal and reaching a decision on the
merits of an appeal, the division
engineer can consult widi or seek
information from any person, including
die district engineer.
(b) The division engineer will
disapprove the entirety of or any part of
die district engineer's decision only if
he determines diat die decision on some
relevant matter was arbitrary,
capricious, an abuse of discretion, not
supported by substantial evidence in the
administrative record, or plainly
contrary to a requirement of-law,
regulation, an Executive Order, or
officially-promulgated Corps policy
guidance. The division engineer will not
attempt to substitute his judgment for
diat of die district engineer regarding a
matter of fact, so long as die district
engineer's determination was supported
by substantial evidence in die
administrative record, or regarding any
odier matter if die district engineer's
determination was reasonable and
widiin die zone of discretion delegated
to die district engineer by Corps
regulations. The division engineer may
instruct die district engineer on how to
correct any procedural error diat was
prejudicial to the appellant (i.e.,. diat
was not a "harmless" procedural error),
or to reconsider die decision where any
essential part of die district engineer's
decision was not supported by accurate
or'sufflcient information, or analysis, in
die administrative record. The division
engineer will document his decision on'
the merits of the appeal In writing, and
provide a copy of diis decision to die
applicant (using certified mail) and the
district engineer. >' '
(c) The final decision of the division
engineer on the merits of the appeal will
conclude die administrative appeal
process, and this decision will be filed
in the administrative record for the
project.
§331.10 Final Corps decision,
The final Corps decision on a permit
application is the initial decision to
issue or deny a permit, unless die
permittee submits an RFA, and die
division engineer accepts the RFA,
pursuant to this Part. The final Corps
decision on an appealed action is as
follows:
(a) If the division engineer determines
that die appeal is without merit, the
final Corps decision is the district
engineer's letter advising the applicant
diat die division engineer has decided
that the appeal is without merit, and
confirming the district engineer's initial
permit decision; or
(b) If die division engineer determines
diat die appeal has merit, die final
Corps decision is the district engineer's
decision made pursuant to die division
engineer's remand of die appealed
action. The division engineer will
remand die decision to die district
engineer widi specific instructions to
review the administrative record, and to*
further analyze or evaluate specific
issues. If die district engineer
determines diat die effects of the district
engineer's reconsideration of die
administrative record would be narrow
in scope and impact, the district
engineer must provide notification only
to diose parties who commented or
participated in die original review, and'
would allow 15 days for die submission
of supplemental comments. Where die
district engineer determines diat die
, effect of die district engineer's
reconsideration of die administrative
record would be substantial in scope
and impact, die district engineer's
review process will include Issuance of
a new public notice, and/or preparation
of a supplemental environmental
analysis and decision document,(see 33
CFR 325.7). Subsequently, die district
engineer's decision made' pursuant to
the division engineer's remand of die
appealed action becomes die final Corps
action. Nodiing in tills rule precludes
die agencies^ authorities pursuant to
Section 404(q) of die Clean Water Act.
§331.11 Unauthorized activities.
Permit denials and declined
individual permits associated with.after-
die-fact permit applications are
appealable actions for die purposes of
these regulations. If die Corps accepts
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Federal Register/Vol. 64! No. 45/Tuesday, March'9, 1999/Rules and Regulations ' . 11719
an after-the-fact permit application, an
administrative appeal of a permit denial
or declined individual permit may be
filed and processed in accordance with
these regulations subject to the
provisions of paragraphs (a), (b)," and (c)
of this section.
(a) Initial Corrective Measures, If the
district engineer determines that initial
corrective measures are necessary
pursuant to 33 CFR 326.3(d), an RFA for.
an appealable action will not be
accepted by the Corps, until the initial
corrective measures have been
completed to the satisfaction of the
district engineer.
(b) Penalties. If an affected party
requests.-under this Section, an
administrative appeal of an appealable
action prior to the resolution of the
unauthorized activity, an4 the division
engineer determines that the appeal has
no merit, the responsible party remains
•subject to' any c;ivil, criminal, and
administrative penalties as provided by
law. . •
(c) Tolling of Statute of Limitations.
Any person who applies for an after-the-
fact permit, where the application is
accepted and processed by the Corps,
thereby agrees that the statute of
limitations regarding any violation .
associated with that application is tolled
until one year after the final Corps
decision, as defined, at 33 CFR 331.10.
Moreover, the applicant for an after-the-
fact permit must also memdrialize that
agreement to toll the statute of
limitations, by signing an agreement to
that effect, in exchange for the Corps
acceptance of the after-the-fact permit
application, and/or any administrative
appeal (See 33 CFR 326.3(e)(l)(v).) No "
after-the-fact permit application or
administrative appeal will be accepted
until such written tolling agreement is
furnished to the district engineer.
§ 331.12 Exhaustion of administrative
remedies.
. No affected party may file a legal
action in the Federal courts based on a .
permit denial or declined individual
permit until after a final Corps decision
has been made and the appellant has
exhausted all applicable administrative
remedies under this Part. The appellant
is considered to have exhausted all
administrative remedies when a final
Corps decision is made in accordance
with § 33 i. 10 of this Part.
BILLING CODE 3710-92-P
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Federal Register/Vol. 64. No. 45/Tuesday, March 9, 1999/Rules and Regulations
Administrative Appeal Process
Applicant decides to appeal denied
permit or declined Individual permit.
Applicant submits RFA to division
engineer within 60 days of NAP.
Corps reviews, RFA, and
notifies appellant within
30 days of receipt.
Division engineer.returns
RFA to appellant for
revisions. Division engineer
must receive revised
RFA within 30 days. •
Appeal conference field within 60
days of acceptance of RFA, unless
appellant and RO mutually agree to
forego the conference;
RO reviews record, and the division
engineer renders a decision on the
merits of the appeal within 90 days
of acceptance of RFA.
Max. 90
days
Yes
Division engineer remands
decision to district engineer,
with specific instructions, for
reconsideration; appeal
process completed.
Does the
appeal have
merit?
District engineer's decision
is upheld; appeal process
completed.
Appendix A
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Federal' Register/Vol. 64, tyo. 457Tuesday, March 9,. 1999/Rules and,Regulations .11721
Applicant Options with Proffered Individual Permit
Applicant/Corps
sign permit, the
project is authorized.
Applicant/Corps
sign permit, the
project is authorized.
Appendix B
District engineer
issues Individual
permit to applicant.
Does
applicant accept all
terms and conditions of the
proffered permit?
Applicant sends letter with specific
objections to district engineer. "The district
engineer can modify the permit to remove
all objectionable conditions, remove some
of the objectionable conditions, or not modify
the permit The permit is returned to the
applicant for reconsideration with an NAP
and an RFAform.
Does the
applicant accept the
terms and conditions of
the permit?
Applicant declines the permit The
declined Individual permit Is appealed by
submitting a RFA to the division
engineer within 60 days of the
NAP (see Appendix A).
[ER Doc. 99-5734 Filed 38-99; 8:45 am].
BILLING CODE 3710-92-C •
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