PART 331--ADMINISTRATIVE APPEAL PROCESS
Sec.
331.1 Purpose and policy.
331.2 Definitions.
331.3 Review officer.
331.4 Notification of appealable actions.
331.5 Criteria.
331.6 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 Process.
Appendix B--Applicant Options with Proffered Individual Permit.
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 1413.
Sec. 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 pursue 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 sections. 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 Sec. 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.
Sec. 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 an 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 was 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 Sec. 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 CFR 325.5(b).
Request for appeal (RFA) means 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.
Sec. 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 that of the division engineer. Regardless of any
delegation of RO authority or responsibility, the 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 an 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 division engineer
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 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.
Sec. 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.
Sec. 331.5 Criteria.
(a) Criteria for Appeal. (1) Submission of RFA. The appellant must submit
a completed RFA (as defined at Sec. 331.2) to the appropriate division office in order to
appeal 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 the Section 404(b)(1) Guidelines, or use of incorrect data.
(b) Actions not appealable. An action or decision is not subject to an
administrative appeal under these 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 the permit, unless the authorized work has not started in waters of the
United States, and that issued permit is subsequently modified by the district engineer
pursuant to 33 CFR 325.7;
(2) any site specific matter that has been the subject of a final decision of the
Federal courts;
(3) a final Corps decision that has resulted from additional analysis and evaluation,
as directed by a final appeal decision;
(4) a permit denial without prejudice or a declined permit, where the controlling
factor cannot be changed by the Corps decision-maker (e.g., the requirements of a binding
statute, regulation, state Section 401 water quality certification, state Coastal Zone
Management Act disapproval, etc. (See 33 CFR 320.4(j));
(5) a permit denial case where the applicant has subsequently modified the proposed
project, because this would constitute an amended application that would require a new
public interest review, rather than an appeal of the existing record and decision; or
(6) any request for the appeal of a denied permit or a declined individual permit,
where the RFA has not been received by the division engineer within 60 days of the date of
the NAP.
Sec. 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 the NAP. A flow
chart of the appeal process is shown in Appendix A.
(b) In the case where an applicant objects to a proffered individual permit, the appeal
process proceeds as follows. To initiate the appeal process regarding the terms and
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
proffered individual permit to address all of the applicant's objections, the district
engineer will issue such modified permit, enclosing an NAP form as well. Should the
district engineer modify the proffered individual permit to address some, but not all, of
the applicant's objections, the district engineer will send the applicant such modified
permit, an NAP form, and the decision document for the project. If the district engineer
does not modify the proffered individual permit, the district engineer will offer the
unmodified permit to the applicant a second time, enclosing an NAP form and a copy of the
decision document. If the applicant still has objections, the applicant may decline such
modified or unmodified permit; this declined individual 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 a proffered individual permit is shown in Appendix B.
(c) 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 (see Secs. 331.6 (b)(ii) and 331.6(b)(iii)).
(d) Affected parties may appeal permit denials or declined individual permits where the
permit denial or the proffered individual permit occurs after March 9, 1999, but may not
appeal permit denials or declined permits where the Corps took that action before March 9,
1999. All appeals must meet the criteria set forth in Sec. 331.5 of this Part.
Sec. 331.7 Review procedures.
(a) General. The 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 the criteria for appeal (see
Sec. 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 the 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 date of the certified letter refusing the initial RFA. If the Corps
determines that the revised RFA still fails to meet the criteria for appeal, the division
engineer will notify the appellant of this determination by a certified letter within 30
days of the date of the receipt of the 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, the RO
should determine if a site investigation is needed to clarify the 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 the appellant,
provided the RO has determined that such an investigation would be of benefit in
interpreting the administrative record. The appellant and the 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 the 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 RO, the appellant, the appellant's agent(s) and
the Corps district staff are authorized participants at the site investigation. The RO may
also invite any other party the RO has determined to be appropriate, such as any technical
experts consulted by the Corps.
(d) Appeal Conference. Conferences held in accordance with this rule will be
informal, and will be chaired by the RO. The purpose of the appeal conference is to
provide a forum that allows the participants to discuss freely all relevant issues and
material facts associated with the appeal. An appeal conference will be held for every
appeal of a permit denial or a declined individual permit, unless the RO and the appellant
mutually agree to forego a conference. The conference will take place within 60 days of
receipt of an acceptable RFA, unless the RO determines that unforeseen or unusual
circumstances require scheduling the conference for a later date. The purpose of the
conference will be to allow the appellant and the Corps district representatives to
discuss supporting data and information on issues previously identified in the
administrative record, and to allow the RO the opportunity to clarify elements of the
administrative record. Presentations by the appellant and the Corps district
representatives may include interpretation, clarification, or explanation of the legal,
policy, and factual bases for their positions. The conference will be governed by the
following guidelines:
(1) Notification. The RO will set a date, time, and location for the conference.
The RO will notify the appellant and the Corps district office in writing within 30 days
of receipt of the RFA, and not less than 15 days before the 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 the proximity
of the project site. Public facilities available at no expense are preferred. If a free
facility is not available, the Corps will pay the cost for the facility.
(3) Participants. The RO, the appellant, the appellant's agent(s) and the 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 the Corps, adjacent property owners or Federal or state agency personnel to
clarify elements of the administrative record. The division engineer and/or the district
engineer may attend the conference at their discretion. If the appellant or his authorized
agent(s) fail to attend the appeal conference, the appeal process is terminated, unless
the RO excuses the appellant for a justifiable reason. Furthermore, should the process be
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 the conference.
The RO shall open the conference with a summary of the policies and procedures for
conducting the 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 the
administrative record, as needed, to allow the division engineer to make a final
determination on the merits of the appeal. The RO will also be responsible for documenting
the appeal conference.
(5) Appellant rights. The appellant, and/or the appellant's authorized agent(s),
will be given a reasonable opportunity to present the appellant's views regarding the
subject permit denial or declined permit.
(6) Subject matter. The purpose of the appeal conference will be to discuss the
reasons for appeal contained in the RFA. Any material in the administrative record may be
discussed during the conference, but the discussion should be focused on relevant issues
needed to address the reasons for appeal contained in the RFA. The RO may question the
appellant or the Corps representatives with respect to interpretation of particular issues
in the record, or otherwise to clarify elements of the administrative record. Issues not
identified in the administrative record by the date of the 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 Sec. 331.5(b)(5)).
(7) Documentation of the appeal conference. The appeal conference is an informal
proceeding, intended to provide clarifications and explanations of the administrative
record for the RO and the division engineer; it is not intended to supplement the
administrative record. Consequently, 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 Sec.
331.5 of this Part. Neither the appellant nor the Corps may present new information not
already contained in the administrative record, but both parties may interpret, clarify or
explain issues and information contained in the record.
(f) 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 the 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
other appeal proceeding, the Corps 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.
Sec. 331.8 Timeframes for final appeal decisions.
The Corps will make a final decision on the merits of the appeal at the earliest
practicable time, in accordance with the time limits set forth below. The administrative
appeal process is initiated by the receipt of an RFA by the division engineer. The Corps
will review the RFA to determine whether the action is appealable. If the division
engineer determines that the action is not appealable, the division engineer will notify
the appellant accordingly within 30 days of the receipt of the RFA. If the division
engineer determines that the action is appealable and the RFA is complete, the RO will
request the administrative record from the district engineer. The division engineer will
make a final decision on the merits of the appeal within 90 days of the receipt of the
complete RFA.
Sec. 331.9 Final appeal decision.
(a) In accordance with the authorities contained in Sec. 331.3(b), the division
engineer will make a decision on the merits of the appeal. While reviewing an appeal and
reaching a decision on the merits of an appeal, the division engineer can consult with or
seek information from any person, including the district engineer.
(b) The division engineer will disapprove the entirety of or any part of the district
engineer's decision only if he determines that the 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 that of the district engineer regarding a
matter of fact, so long as the district engineer's determination was supported by
substantial evidence in the administrative record, or regarding any other matter if the
district engineer's determination was reasonable and within the zone of discretion
delegated to the district engineer by Corps regulations. The division engineer may
instruct the district engineer on how to correct any procedural error that was prejudicial
to the appellant (i.e., that was not a "harmless" procedural error), or to
reconsider the decision where any essential part of the district engineer's decision was
not supported by accurate or sufficient information, or analysis, in the administrative
record. The division engineer will document his decision on the merits of the appeal in
writing, and provide a copy of this decision to the applicant (using certified mail) and
the district engineer.
(c) The final decision of the division engineer on the merits of the appeal will
conclude the administrative appeal process, and this decision will be filed in the
administrative record for the project.
Sec. 331.10 Final Corps decision.
The final Corps decision on a permit application is the initial decision to issue or
deny a permit, unless the permittee submits an RFA, and the 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 the appeal is without merit, the final
Corps decision is the district engineer's letter advising the applicant that the division
engineer has decided that the appeal is without merit, and confirming the district
engineer's initial permit decision; or
(b) If the division engineer determines that the appeal has merit, the final Corps
decision is the district engineer's decision made pursuant to the division engineer's
remand of the appealed action. The division engineer will remand the decision to the
district engineer with specific instructions to review the administrative record, and to
further analyze or evaluate specific issues. If the district engineer determines that the
effects of the district engineer's reconsideration of the administrative record would be
narrow in scope and impact, the district engineer must provide notification only to those
parties who commented or participated in the original review, and would allow 15 days for
the submission of supplemental comments. Where the district engineer determines that the
effect of the district engineer's reconsideration of the administrative record would be
substantial in scope and impact, the 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, the district engineer's
decision made pursuant to the division engineer's remand of the appealed action becomes
the final Corps action. Nothing in this rule precludes the agencies' authorities pursuant
to Section 404(q) of the Clean Water Act.
Sec. 331.11 Unauthorized activities.
Permit denials and declined individual permits associated with after-the-fact permit
applications are appealable actions for the purposes of these regulations. If the Corps
accepts 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, and the division engineer determines that the appeal has no merit, the
responsible party remains subject to any civil, 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 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(See 33 CFR 326.3(e)(1)(v).) No after-the-fact permit application or
administrative appeal will be accepted until such written tolling agreement is furnished
to the district engineer.
Sec. 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 Sec. 331.10 of this Part.
Extracted from Federal Register: March 9,l999 (Volume 64, Number 45)
[Proposed Rules] Page 37280
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