Accordingly, 33 CFR Parts 320 and 326 are proposed to be amended and 33 CFR Part 331 is proposed to be added as follows:
1. The authority citation for Part 320 continues to read as follows:
Authority: 33 U.S.C. 401 et seq.; 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.
Sec. 320.1 Purpose and scope.
* * * * *
(a)(2) * * * A district engineer decision to deny a permit or a
Corps jurisdictional determination is subject to an administrative
appeal by the landowner or permit applicant 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
there is no administrative appeal of that decision. An applicant or
landowner must exhaust any administrative appeal available pursuant to
the 33 CFR Part 331 and receive a final agency decision prior to filing
suit in Federal District Court.
1. The authority citation for Part 326 continues to read as follows:
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 1413.
2. Section 326.3(e) is amended by adding a new paragraph (e)(1)(v) to read as follows:
Sec. 326.3 Unauthorized activities.
* * * * *
(e) * * *
(1) * * *
(v) No permit application will be accepted unless and until the
applicant has furnished a signed statute of limitations tolling
agreement to the district engineer. A single statute of limitations
tolling agreement will be prepared for each unauthorized activity. 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 party agrees
that the statute of limitations will be tolled until one year after the
final after-the-fact permit decision or, if there is an administrative
appeal, one year after the final agency decision as defined at 33 CFR
331.9, which ever is later.
Part 331 is added to read as follows:
Sec.
331.1 Purpose and policy.
331.2 Definitions.
331.3 Review officers.
331.4 Notification of appealable actions.
331.5 Criteria.
331.6 Filing appeals.
331.7 Review procedures.
331.8 Timeframes for appeals decisions.
331.9 Final appeals decisions.
331.10 Final agency decisions.
331.11 Unauthorized activities.
331.12 Exhaustion of administrative remedies.
Authority: 33 U.S.C. 401 et seq., 1344, and 1413.
Sec. 331.1 Purpose and policy.
(a) General. The purpose of this regulation is to establish administrative appeals policies and procedures for final Corps of Engineers geographic jurisdictional determinations and permit denials with prejudice. The appeals process will allow landowners and permit applicants to pursue an administrative appeal of a final Corps of Engineers decision or determination with which they disagree. The basis for an appeal and the specific policies and procedures of the appeals process are described in the following sections. It shall be the policy of the Corps of Engineers to promote and maintain an administrative appeals process that is independent and objective, fair and equitable, and efficient and cost-effective.
(b) Jurisdictional determinations. Under the Corps of Engineers regulatory program, landowners and permit applicants may request, and/ or receive, final Corps jurisdictional determinations to determine the presence and extent of wetlands, scope and extent of other waters of the United States, and whether the property or waterbody is subject to Department of the Army jurisdiction. Therefore, such geographic jurisdictional determinations are vitally important decisions to landowners and permit applicants. These decisions affect whether or not the Corps has regulatory jurisdiction, and whether a permit is required for work involving regulated discharges and activities. The administrative appeal process shall apply to these decisions.
(c) Permit denials. Permit decisions that result in denial with prejudice may be appealed under the administrative appeal process.
Sec. 331.2 Definitions.
The terms and definitions found in 33 CFR Parts 320 through 330 are applicable to this regulation. In addition, the following terms are defined for the purposes of this Part:
(a) Jurisdictional determination means a written Corps determination that a wetland (as determined and defined by a wetland delineation) and/or waterbody is subject to regulatory jurisdiction under section 404 of the Clean Water Act or a written Corps determination that a waterbody is subject to regulatory jurisdiction under sections 9 and 10 of the Rivers and Harbors Act of 1899. Additionally, the term includes a written reverification of expired jurisdictional determinations and a written reverification of jurisdictional determinations where new information has become available that may affect the previous written determination. For example, such geographic jurisdictional determinations may include, but are not limited to, one or more of the following determinations: presence/absence of wetlands, wetland/upland boundary, ordinary high water mark, mean high water mark, high tide line, interstate commerce nexus for isolated waters, and adjacency of wetlands to a waterbody. All jurisdictional determinations will be in writing and will be identified as either preliminary or final jurisdictional determinations. Some office, or preliminary, jurisdictional determinations are provided to applicants or landowners, generally to indicate the presence or absence of wetlands or waterbodies. They are advisory in nature and may not be appealed. Final jurisdictional determinations will be provided in writing and will be certified as a final jurisdictional determination and may be appealed.
(b) Wetland delineation means a Corps of Engineers (Corps) delineation, or verification of a delineation submitted by an applicant or consultant, indicating the size and boundaries of a subject property that is a wetland in accordance with the current Federal manual for identifying and delineating wetlands (FDM). Additionally, the term includes reverification of expired wetland delineations and reverification of wetland delineations where new information has become available that may affect the final delineation.
(c) Permit denial means a written Corps denial with prejudice (see 33 CFR 320.4(j)) of an individual standard permit as defined in 33 CFR 325.5(b). Permit denials also include cases where a proffered individual permit is refused by the applicant in writing because the applicant objects to the terms or special conditions of the proffered permit and the permit is subsequently denied with prejudice by the District Engineer. If the applicant refuses a proffered general permit, the District Engineer will not deny a permit for the proposed project based on that refusal. The applicant must apply for an individual permit. If that individual permit is subsequently denied with prejudice, then the applicant may request an appeal of that denial.
(d) Appealable action means a written final jurisdictional determination or permit denial as those terms are defined in paragraphs (a) and (c) of this section.
(e) Affected party means a permit applicant or landowner (i.e., an individual who has an identifiable and substantial legal interest in the property) that has received a final jurisdictional determination, or permit denial as those terms are defined in paragraphs (a) and (c) of this section.
(f) Appellant means an affected party who has filed an appeal under the criteria and procedures of these regulations.
(g) Review officer (RO) means the Corps of Engineers agency official responsible for the review and final decision on the merits of an appeal or review and recommendation to the Corps agency official making the final decision on the merits of an appeal. The RO, and/or the appeals decision-maker, is the District Engineer, or the Division Engineer as appropriate, or their designee(s).
(h) Notification of appeals process (NAP) means the information fact sheet which explains the administrative appeals process, criteria, and procedures. The NAP will accompany all final wetland delineations, jurisdictional determinations, and permit denials, as these terms are defined herein.
(i) Request for appeal (RFA) means the affected party's official request to appeal an appealable action with which he disagrees. The RFA will include required information to identify the affected party, proposed project, reason(s) for the appeal, and any supporting data and information. The format and required information of the RFA will be provided to the affected party at the time of notification of appeals process. The affected party initiates the administrative appeals process by completing and returning the RFA to the appropriate Corps of Engineers office.
Sec. 331.3 Review officers.
(a) Authority. The District Engineer, or the Division Engineer as
appropriate, has the authority and responsibility for administering a
fair, reasonable, and effective administrative appeal process. The
District Engineer, or the Division Engineer as appropriate, may act as
the 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 District Engineer, or the Division Engineer as
appropriate, may not delegate any authority or responsibility described
in this Part as that of the District Engineer, or the Division
Engineer, respectively. Regardless of any delegation of RO authority or
responsibility, the District Engineer or the Division Engineer as
appropriate, retains overall responsibility for the administrative
appeal process.
(1) Jurisdiction determinations. The District and Division ROs have
the authority to make a decision on the merits of the appeal.
Furthermore, the District RO has the discretion to make a new
jurisdiction determination.
(2) Permits denials. The RO will prepare an analysis and
recommendation for the Division Engineer. The Division Engineer has the
authority to make the final decision on the merits of the appeal. Under
the appeal process, neither the RO nor the Division Engineer has the
authority to make a final decision to issue or deny any particular
permit. The authority to issue or deny permits remains with the
District Engineer. However, the Division Engineer may exercise the
authority at Sec. 325.8(c) to elevate the permit case and then may make
the final permit decision.
(b) General. (1) Independence. The ROs shall be located in the
Corps Division and District regulatory offices, unless specifically
appointed as described in paragraphs (b), (c) and (d) of this section.
The ROs will not perform or have been involved with the preparation,
review, or decision making of the action being appealed. During the
appeal process, the ROs shall maintain independence and objectivity in
their review of an appeal case and when determining the merits of the appeal.
(2) Review. The RO will conduct an independent analysis of the
existing administrative record to ensure that the district's decision
complies with legal, regulatory, and policy requirements, that
omissions of material facts have not occurred, and that the record is
sufficient to support conclusions and the ultimate decision. The
District RO has the discretion to gather additional information when
deemed necessary. When reviewing technical issues, Division RO's shall
not substitute their judgment for that of the Corps district unless the
reviewed decision was clearly erroneous or omitted a material fact. An
RO who lacks specific expertise with regard to a specific appealed
issue will obtain the assistance of another RO or other recognized
expert from an office outside the Regulatory Branch or from a District
other than the District where the appeal was initiated.
(c) Jurisdictional determinations. (1) District RO. The Corps
district RO shall be, or have the support of, a recognized expert with
extensive experience in conducting and reviewing wetland delineations
and performing and reviewing jurisdictional determinations. The
district RO shall report directly to the Regulatory Branch Chief. This
arrangement will insure that the district RO is removed from day-to-day
involvement in routine jurisdictional determinations made by Regulatory
Branch project managers, unit chiefs, and section chiefs. For any case
where the jurisdictional determination was made by the Regulatory
Branch Chief or higher authority, or the individual(s) who normally
acts as the district RO has participated in the decision or otherwise
advised the decision-maker, or at the District Engineer's discretion,
the District Engineer or a Corps official at least one level higher
than the decision-maker shall appoint a qualified independent RO to
conduct the appeal process.
(2) Division RO. The division RO responsible for appeals of a
district RO's decision shall generally be the same RO(s) that is
responsible for appeals of permit denials described in paragraph (d) of
the section.
(d) Permit denials. The ROs responsible for appeals involving permit denials shall be officials in Division regulatory offices with extensive knowledge of all aspects of the Corps regulatory program. For any case where the permit decision was made by the Division Engineer or higher authority, an agency official at least one level higher than the decision-maker shall appoint a qualified independent RO to conduct the appeal process.
Sec. 331.4 Notification of appealable actions.
Every final jurisdictional determination and permit denial must be provided in writing to the affected party. For permit denials, the notification will also include a copy of the decision document. Additionally, an affected party has the right to review and obtain copies of the administrative record. Each notification letter will include a NAP and an RFA.
Sec. 331.5 Criteria.
(a) Criteria for appeal. The reason(s) or basis(es) for requesting the appeal must be specifically stated and must be more than a simple request for appeal because the affected party did not like the decision. Examples of reasons or bases for appeals include, but are not limited to, the following: a procedural error, an incorrect application of policy or regulations, omission of material fact, incorrect application of Federal Wetland delineation manual, lack of interstate commerce nexus, incorrect application of 404(b)(1) Guidelines under the Clean Water Act, 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) a jurisdictional determination associated with an individual
permit (including an individual permit with special conditions), or the
permit itself, where the permit has been accepted and signed by the
permittee;
(2) any site specific matter that has been the subject of a final
judicial decision; or
(3) a final agency decision that has resulted from additional
analysis and evaluation, as directed by a final appeal decision.
(4) any matter than can not be controlled or changed by the Corps
decision-maker (e.g., The requirement of a binding statute, regulation,
state Section 401 water quality certification, etc.)
Sec. 331.6 Filing appeals.
An affected party must file an RFA that is received by the Corps within 60 days from the date of the letter notifying the affected party of the appealable action. In any case where work is authorized to commence prior to the end of this 60 day period, either by general or individual permit, and the permittee wishes to request an appeal, the appeal must be received by the Corps and the appeal process concluded prior to the commencement of any work in the area identified as waters of the United States, and prior to any work that could alter the hydrology of waters of the United States. Additionally, the affected party must grant a right of entry to the RO to inspect the property and to conduct appropriate field tests and sampling that the RO determines may be necessary.
Sec. 331.7 Review procedures.
(a) General. (1) Jurisdiction determinations. The administrative
appeals process for jurisdiction determinations is a two level appeal
process. The first level appeal is to a specialist review officer in a
Corps district office. The landowner will be able to present
information to the RO, or the RO may obtain information, for the
administrative record. The second level appeal is to an RO in a Corps
Division office. This review will be limited to the administrative
record developed during the first level appeal, which would include any
information provided by the landowner as part of that record.
(2) Permit denials. The administrative appeals process for permit
denials is a one level appeal process to the Division Engineer. The
appeals process will be conducted by a RO in the Division office. The
division RO will prepare the record, an analysis, and a recommendation
for the Division Engineer. The Division Engineer may participate in the
appeals process as the Division Engineer deems appropriate. The
Division Engineer will make the decision on the merits of the appeal.
(b) Acceptance of the request for appeal. Within 30 days after receipt of the RFA, the RO shall review the appellant's RFA and the administrative record. If, within this 30 day period, the RO determines that the RFA does not meet the criteria for appeal (see Sec. 331.5), the RO will notify the appellant in writing by certified mail of this determination and the reason(s) why the appeal failed to meet applicable criteria. No further administrative appeal is available, unless within 30 days from his receipt of the letter refusing his appeal, the appellant can refute the reason(s) for failing the criteria for appeal. The appellant may submit a revised RFA, if the reason(s) for failing applicable criteria have been remedied and the revised RFA is received by the Corps within 30 days from the date the appellant received notification that the original RFA failed to meet the criteria for appeal. If the RO determines that the revised RFA still does not meet the criteria for appeal, the RO will notify the appellant in writing of that fact by certified mail within 30 days advising the appellant that the matter can not be appealed.
(c) Site visits. If within 30 days from receipt of the RFA the RO determines that additional field data and sampling are necessary, or if the appellant requests a site visit, the RO will conduct a site visit. The RO has the discretion to conduct a site visit, except when the applicant requests one, in which case a site visit shall be conducted. The appellant, or the appellant's authorized agent, must participate in the site visit if he has requested that one be conducted. If a site visit is conducted, the RO will schedule the completion of the site visit at the earliest practicable time. When practicable the site visit should be scheduled in conjunction with the review conference or meeting, if one is held. Site visits will not be conducted by Division ROs for appeals of District RO decisions on jurisdiction determinations.
(d) Meetings and conferences--(1) Jurisdictional determinations
meetings. The District RO may schedule a meeting with the appellant,
his or her authorized agent, or both, and appropriate Corps regulatory
personnel to review and discuss issues directly related to the appeal.
Additionally, the appellant may request that such a review meeting be
held. However, the final decision on whether to conduct a review
meeting shall be at the discretion of the District RO. If a meeting is
held, the appellant will bear his or her own costs associated with
necessary arrangements, exhibits, travel, and representatives. The
Division RO will not conduct any jurisdictional determination meetings
or discussions with any party, including the District RO.
(2) Permit denial conferences. An appeal review conference
(conference) will be held for every permit denial appeal, unless the RO
and the appellant mutually agree to forego a conference. When held, 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 conference will
be governed by the following:
(i) Notification. The RO will set a date, time, and location for
the conference and notify in writing the appellant and the Corps
District regulatory office within 30 days of receipt of the RFA.
(ii) 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. Where public
facilities are available at no expense, these facilities are preferred.
If a free facility is not available, the charges for the facility will
be borne by the Corps District regulatory office.
(iii) Participants. The RO, appellant, the appellant's authorized
agent or consultant, and the Corps District staff are authorized
participants in the conference. The Division Engineer and/or the
District Engineer may choose to attend or not to attend at their
discretion. If the appellant does not attend the conference, the
appeals process is terminated with prejudice, unless the RO excuses the
appellant for a justifiable reason. Furthermore, should the process be
terminated with prejudice, the original permit denial decision shall be
sustained.
(iv) The role of the RO. The RO shall be in charge of conducting
the conference. He shall open the conference with a summary of the
policies and procedures for conducting the conference as described in
these regulations. The RO's responsibilities are to conduct a fair and
impartial conference, to hear and fully consider all relevant issues
and facts, and to clarify any matters necessary to make a final
determination on the merits of the appeal.
(v) Appellant rights. The appellant, or the appellant's authorized
agent, will be given a reasonable opportunity to present the
appellant's views regarding the subject permit denial.
(vi) Subject matter. The conference will be limited to matters
contained within the existing administrative record. The RO may ask the
Corps District representatives or the appellant to respond regarding
particular matters of the relevant record, regarding the appellant's
assertions or exhibits, or to clarify elements in the administrative
record. New issues may not be raised or discussed.
(vii) Testimony and transcripts. There will be no sworn testimony
and no cross examination during the conference. The RO may tape-record
and/or have a transcript prepared of the conference. The tape and/or
transcript is for use by the RO to review the proceeding of the
conference and to assist in the preparation of the RO's findings. A
tape-recording or transcript is optional, at the RO's discretion.
However, if none is planned or requested by the RO, the appellant may
contract and bear the expense for such a record if so desired. Any tape
or transcript would become part of the administrative record of the
appeal process and must be made available to all parties upon request.
(viii) Appellant costs. The appellant will bear his own costs
associated with necessary arrangements, exhibits, travel, and
consultants.
(e) The appeal of a District jurisdictional determination to the Division office will be limited to the administrative record. The RFA will be accepted upon receipt by the appropriate Division office. The Division RO will base the appeal decision on the administrative record provided by the District office. Therefore, the appellant must provide to the District office all relevant information to be entered into the administrative record during the District jurisdictional determination appeal. The Division RO will not meet or have conversations with any interested party, including the District RO or Corps District personnel, the appellant or the appellant's agent, regarding this matter.
Sec. 331.8 Timeframes for final appeals 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 in the following paragraphs.
(a) Jurisdictional determination appeals.
(1) District level appeal.
(i) Normal timeframe. If the RFA meets the criteria for appeal and
the District RO determines that a site visit is not necessary, the
District RO, or designated Corps official, will make a final decision
on the merits of the appeal within 60 days from receipt of the RFA, or
the revised RFA, except as provided in paragraphs (a)(1)(ii) and
(a)(1)(iii) of this section.
(ii) Extenuating circumstances. If extenuating circumstances are
present at the site that preclude the appellant and/or the District RO
from conducting the site visit or gathering necessary information, the
District RO may grant a time extension. Examples of extenuating
circumstances may include seasonal hydrology conditions, winter
weather, or disturbed site conditions. However, in no case shall the
data collection or site visit period extend the total appeals review
process beyond twelve months from the date of receipt of the RFA. If a
time extension is granted for information and data gathering, the
District RO will notify the appellant in writing. The District RO will
complete the appeals review and make a final decision within 30 days of
the site visit or data collection time extension period.
(iii) New information. During the course of the appeals review, the
appellant may present new information not available at the time the
appeal was submitted. The District RO, at the District RO's discretion, may extend the time period for making the
final decision to 30 days beyond the date of receipt of additional
information submitted by the appellant, unless conditions as described
in paragraph (a)(1)(ii) of this section exist.
(2) Division level appeal. The Division RO, or designated Corps
official, will make a final decision on the merits of the appeal within
60 days of receipt of the RFA.
(b) Permit denials. The Division Engineer will make a final decision on the merits of the appeal within 90 days of receipt of the RFA, or the revised RFA.
Sec. 331.9 Final appeals decisions.
(a) In accordance with the authorities contained in Sec. 331.3(b),
the Corps appeal decision will either:
(1) determine that the appeal has no merit;
(2) determine that the appeal has merit; or
(3) for jurisdictional determinations only, at the District level
the RO, or designated Corps official, may determine that the appeal has
merit and revise the jurisdictional determination.
(b) The Corps will document the appeal decision, addressing the conclusions reached on the merits of the appellant's appeal. If the Corps determines that the appeal has merit (paragraph (b)(2) above), the RO will notify the district of further analysis and evaluation needed before the district can make a final agency decision. The RO will notify the appellant and the appropriate Corps office of the final appeal decision on the merits of the appeal in writing. The appellant will be notified by certified mail.
(c) The final appeal decision of the Division RO, the designated Corps official, or the Division Engineer, as appropriate, concludes the administrative appeal process and will be included in the administrative records. There is no further administrative appeal of the appealable action.
Sec. 331.10 Final agency decisions.
(a) Jurisdictional Determinations. The final agency decision on a
jurisdictional determination that has been appealed will be made by one
of the following methods:
(1) If the Division RO, or designated Corps official, determines
that the appeal has no merit, then the final agency decision is the
original jurisdiction determination or a District RO, or designated
Corps official, corrected jurisdiction determination, as appropriate;
or
(2) If the Division RO, or designated Corps official, determines
that the appeal has merit, the Division RO, or designated Corps
official, will provide direction to the original decision-maker or the
District RO, as appropriate, to complete the administrative record and/
or further analyze or evaluate specific issues. Subsequently, the final
agency decision is the final jurisdictional determination made pursuant
to the Division RO's, or designated Corps official's appeal decision;
or
(3) If the appellant accepts the agency decision based on the
District RO's, or designated Corps official's appeal decision (see
Sec. 331.9) or does not appeal to the Division Engineer, then that
decision becomes the final agency decision. However, in such cases, the
appellant has acted without exhausting all the administrative remedies
under this rule. (See Sec. 331.12).
(b) Permit denials. The final agency decision on a permit denial
that has been appealed will be made by one of the following methods:
(1) If the Division Engineer determines that the appeal has no
merit, the final agency decision is the District Engineer's denial
decision; or
(2) If the Division Engineer determines that the appeal has merit,
the Division Engineer will provide direction to the District Engineer
to complete the administrative record and/or further analyze or
evaluate specific issues. Subsequently, the final agency decision is
the District Engineer's final decision made pursuant to the Division
Engineer's appeal decision.
Sec. 331.11 Unauthorized activities.
Jurisdictional determinations and permit denials 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 jurisdictional determination and/or a permit denial may be filed and processed in accordance with these regulations subject to the provisions of paragraphs (a), (b), and (c) of this section. An appeal of jurisdictional determinations associated with unauthorized activities will normally not be accepted unless the Corps accepts an after-the- fact permit application. However, in rare cases, the District Engineer may accept an appeal of such a jurisdictional determination, if the District Engineer determines that the interests of justice, fairness, and administrative efficiency would be served thereby.
(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.
(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 RO determines that the appeal has no merit, the responsible party remains subject to any civil, criminal, and administrative penalties as provided by law. Any 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.
(c) Tolling of statute of limitations. The RFA associated with unauthorized activities must include a signed statute of limitations tolling agreement. (See 33 CFR 326.3(e)(1)(v).) No administrative appeal will be accepted until such agreement is furnished to the district engineer.
Sec. 331.12 Exhaustion of administrative remedies.
Applicants or landowners may not file a legal action in Federal District Court challenging a jurisdiction determination or a permit denial until after a final agency decision has been made on the permit application (i.e., permit issuance or denial) and the appellant has exhausted all applicable administrative remedies under this Part. If an appellant is challenging a permit denial, the appellant exhausts all administrative remedies when a final agency decision is made in accordance with Sec. 331.10(b).
Extracted from Federal Register: July 19, 1995 (Volume 60, Number 138)
[Proposed Rules] Page 37280
Top of Page I Previous Page I Front Page
Environmental Technical Services Co., 834 Castle Ridge Rd., Austin, TX 78746
January 12, 1998 URL= http://www.wetlands.com/coe/f19ju95b.htm