[Federal Register Volume 65, Number 60 (Tuesday, March 28, 2000)]
[Rules and Regulations]
[Pages 16486-16503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7439]



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Part III





Department of Defense





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Department of the Army, Corps of Engineers



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33 CFR Parts 320, 326 and 331



Final Rule Establishing an Administrative Appeal Process for the 
Regulatory Program of the Corps of Engineers; Final Rule

  Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules 
and Regulations  

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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Parts 320, 326, and 331


Final Rule Establishing an Administrative Appeal Process for the 
Regulatory Program of the Corps of Engineers

AGENCY: Army Corps of Engineers, DoD.

ACTION: Final rule.

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SUMMARY: On July 19, 1995, the Army Corps of Engineers published notice 
in the Federal Register of a proposal to establish an administrative 
appeal process for the regulatory program of the Department of the 
Army. The comment period expired on September 5, 1995. The Corps 
evaluated and addressed the issues raised in comments submitted in 
response to the proposed rule. In the March 9, 1999, Federal Register, 
the Corps published a final rule establishing an administrative appeal 
process for permit denials and declined individual permits. Due to 
budget constraints, the Corps delayed publication of an administrative 
appeal process for jurisdictional determinations. On September 29, 
1999, the President signed the Corps Fiscal Year 2000 appropriations 
bill which provided funds to administer a one-step appeal process for 
jurisdictional determinations. The final rule published today 
establishes a one step administrative appeal process for jurisdictional 
determinations. In addition, minor changes have been made to clarify 
the administrative appeal process for permit denials and declined 
individual permits. These revised regulations contain the complete 
administrative appeal process for jurisdictional determinations, permit 
denials, and declined individual permits.

DATES: This rule becomes effective on March 28, 2000.

FOR 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 interagency working group to address 
concerns with Federal wetlands policy. After hearing from States, 
tribes, developers, farmers, environmental interests, members of 
Congress, and scientists, the White House Wetlands 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 the development by the Corps of an 
administrative appeal process to be implemented after public 
rulemaking. The Plan discusses an administrative appeal process for 
Section 404 geographic jurisdictional determinations (JDs) and permit 
denials. This rule is also contained in the Regulatory Plan and Unified 
Agenda of Federal Regulatory and Deregulatory Actions pursuant to 
Executive Order 12866.
    On July 19, 1995, the Corps of Engineers (Corps) published a notice 
in the Federal Register (60 FR 37280) proposing to establish an 
administrative appeal process for the Department of the Army regulatory 
program (33 CFR Parts 320-331). The comment period expired on September 
5, 1995. The Corps evaluated and addressed the comments submitted in 
response to the proposed rule. In the March 9, 1999, issue of the 
Federal Register (64 FR 11708), the Corps published a final rule 
establishing an administrative appeal process for permit denials and 
declined permits. That rule became effective on August 6, 1999. Due to 
budget constraints, the Corps delayed the establishment and 
implementation of an administrative appeal process for JDs. The final 
rule published today establishes an administrative appeal process for 
JDs. The administrative appeal process for JDs applies only to 
geographical JDs that are approved by the Corps of Engineers. In 
addition, minor edits have been made to clarify the administrative 
appeal process for permit denials and declined individual permits. That 
existing process has not been changed by this rule. Published herein is 
the consolidated 33 CFR Part 331, containing the complete 
administrative appeal process for JDs, permit denials, and declined 
individual permits. In Fiscal Years 1995 to 2000 the President's 
budgets have included money to implement an administrative appeal 
process for permit denials and JDs. From Fiscal Year (FY) 1995 through 
FY 1997 the Congressional appropriations for the Department of the Army 
regulatory program was held level at $101 million. In FY 1998 and FY 
1999 Congress appropriated $106 million each year. This funding 
increase in FY 98 and FY 99 allowed the Corps to finalize regulations 
to establish and implement an administrative appeal process for permit 
denials and declined individual permits. In FY 2000 Congress 
appropriated sufficient funds to implement the administrative appeal 
process for JDs, that we are finalizing with this consolidated rule, as 
well as the existing administrative appeal process for permit denials 
and declined individual permits. The consolidated rule for the 
administrative appeal process published today provides for the 
administrative appeal, within the Corps, of an approved JD, a denial 
with prejudice by the district engineer of a Department of the Army 
permit application, and/or a declined individual permit (i.e., an 
individual permit refused by the applicant because of objections to the 
terms or special conditions of the proffered permit). The appeal 
process allows administrative appeal of such decisions to the Corps 
under Section 404 of the Clean Water Act, Section 10 of the Rivers and 
Harbors Act, and Section 103 of the Marine Protection, Research, and 
Sanctuaries Act.
    The revised rule provides for the addition of an administrative 
appeal process for JDs. Although some minor editing of the permit 
denial appeal regulation has been done, the existing process has not 
been modified. However, we have published 33 CFR Part 331 in its 
entirety to include the administrative appeal process for approved JDs 
and to provide a Federal Register document that contains the 
administrative appeal rule in its entirety. The preamble discussion 
that follows only addresses comments relating to the administrative 
appeal process for JDs. The comments relating to the administrative 
appeal process for permit denials and declined individual permits were 
discussed in the preamble of the final regulation published in the 
March 9, 1999, Federal Register document.

II. Comments on the Proposed Rule

A. General

    Comments received on the proposed rule can be summarized under 
several broad headings: (1) The type of actions reviewed and the extent 
of the review; (2) the identity and authority of the review officer 
(RO); (3) the identity and rights of appellants; (4) the finality of 
JDs; (5) enforcement-related issues; (6) suggested procedural changes 
and clarifications; and (7) general expressions of both opposition and 
support of adoption of an administrative

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appeal process. The following discussion of comments is divided into 
these topics and additional comments on specific sections of the 
regulation are discussed later in the text.

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 
authority, issuance of cease and desist orders, special conditions, 
denial without prejudice of a permit application, delays in the 
evaluation of a permit application, JDs regarding minor incidental 
discharges associated with excavation and landclearing activities, and 
the applicability of exemptions and general permits. Those comments 
were addressed in the March 9, 1999, Federal Register document. For the 
reasons stated in the March 9, 1999, Federal Register document, the 
Corps is not including an administrative appeal process for determining 
whether or not a particular activity requires a Section 404 and/or 
Section 10 permit. It should be noted that the biggest concern of 
applicants and landowners was the geographic extent of waters of the 
United States on their property (e.g., wetlands delineation).
    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 does not 
raise new issues that were not considered in the Corps original 
evaluation of the JD and/or 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 through 
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.
    In the revised rule, we are providing an opportunity for a 
landowner or applicant to request reconsideration of an approved JD by 
the district engineer if he has new information that may affect the 
district engineer's decision concerning a particular JD. (See 33 CFR 
331.6(c).) It is essential that new information can only be accepted 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. Accepting new information concerning a JD or 
project during the appeal process would constitute a fundamental change 
of the administrative record. Such new information might have resulted 
in a different JD or permit decision had it been presented to the 
district engineer during the original decision process. Furthermore, 
allowing an applicant to withhold potentially critical information from 
the district engineer and submit it during the appeal process might 
encourage forum-shopping, if an applicant believes that a more 
favorable decision might be obtained from the division engineer than 
from the district engineer. Therefore, once a landowner or applicant 
submits a request for an appeal of an approved JD or permit denial, he 
cannot submit new information.
(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 the independence and impartiality of 
the RO, ensuring the fairness of the administrative appeal process, and 
providing the RO with the authority to change the original decision 
regarding the appealed decision. Some commenters also recommended 
authorizing the RO to unilaterally change a district engineer's permit 
decision.
    Some commenters stated 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 support for 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. Simplification and lower 
program costs were also offered by commenters as reasons for 
transferring the process to the private sector. 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 reviewed and considered these comments in the context of 
permit denials and declined individual permits, as discussed in the 
March 9, 1999, Federal Register document. Our responses to those 
comments also apply to the administrative appeal of approved JDs. 
Further, Congress in the FY 2000 appropriation for the regulatory 
program required a one step process for the administrative appeal of 
JDs.
    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 stated that 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.
    These comments were addressed in the March 9, 1999, Federal 
Register document containing the final rule for the administrative 
appeal process for the Corps regulatory program. The responses 
published in that Federal Register document also apply to the 
administrative appeal process for approved JDs. For the administrative 
appeal of JDs, the authority to make the final appeal decision for 
approved JDs can be delegated to the ROs or other appropriate 
officials.
    Another commenter suggested modifying the third sentence of 
Sec. 331.3(b)(2) to provide the RO more flexibility. This commenter 
recommended striking the phrase ``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 replacing it with ``shall provide a recommendation on the 
decision that is supported by clear and convincing evidence.'' This 
comment was addressed in the March 9, 1999, Federal Register document 
announcing the final rule for the administrative appeal process for the 
Corps regulatory program.
    A comment was received suggesting more involvement by Corps 
headquarters to ensure consistency of appealed decisions and to 
facilitate adjustments in policy, if necessary.
    This comment was addressed in the March 9, 1999, Federal Register 
document containing the final rule for the administrative appeal 
process for the Corps regulatory program.

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    Several commenters suggested that, because of its unique 
organizational structure, appeals of decisions made by the New England 
Division office should be directed to Corps headquarters rather than 
the division engineer. This comment was addressed in the March 9, 1999, 
Federal Register document containing the final rule for the 
administrative appeal process for the Corps regulatory program.
(3) The Identity and Rights of the Appellant
    A number of commenters expressed concerns that the proposed 
administrative appeal 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 Federal 
courts. Several commenters recommended broadening the definition of the 
term ``affected party'' to include adjacent landowners and the general 
public. 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.
    For permit denials and declined individual permits, these comments 
were addressed in the March 9, 1999, Federal Register document.
    In response to the question regarding who may pursue an appeal, the 
Corps has modified the definition of the term ``affected party'' to 
include the permit applicant, the landowner, or the lease, easement, or 
option holder. The affected party must have received an approved JD or 
permit denial, or declined a proffered individual permit. Expanding the 
administrative appeal process to third parties would potentially 
increase the number of appealed actions by an order of magnitude or 
more. This would simply be unworkable.
    We do not agree that third parties should be allowed to appeal JDs 
because JDs are primarily site-specific evaluations of technical 
criteria, such as tide lines or high water marks, hydric soils, 
hydrophytic vegetation, wetland hydrology, and interstate commerce 
connections. Adjacent landowners do not typically have knowledge of, or 
sufficient interest in, a property to become involved in such 
determinations. Often an adjacent landowner's interests are related to 
issues other than effects to aquatic resources. We believe that such 
interests are best addressed by local land use plans and zoning 
ordinances rather than by seeking to control potential development by 
challenging Corps JDs. In addition, broadening the definition of 
``affected party'' for JDs to include adjacent landowners and the 
general public would likely produce a tremendous workload increase for 
the Corps. The Corps annually conducts approximately 60,000 JDs. 
Consequently, we have decided not to broaden our definition of 
``affected party'' to include adjacent landowners and/or the general 
public. JDs are not subject to a public interest review or third party 
participation. JD appeals are limited to parties who have the requisite 
legal interest in the land that is under jurisdictional review. While 
the appeals regulation provides for some third party involvement, a few 
commenters have questioned whether the Corps has provided the 
appropriate level of public involvement. Consequently, the Corps will 
evaluate the first year of operation of the appeal process relative to 
third party involvement and will propose any appropriate modification 
to ensure effective public involvement in the appeal process.
(4) The Finality of Jurisdictional Determinations
    A number of comments urged that approved JDs be recognized as 
``final agency actions'' apparently under the view that JDs could 
thereby be immediately appealed in Federal court. However, even final 
agency actions must be ``ripe'' before a court can review them. In the 
past, a number of courts have held that jurisdictional determinations 
are not ripe for review until a landowner who disagrees with a JD has 
gone through the permitting process. The Federal Government believes 
this is the correct result, and nothing in today's rule is intended to 
alter this position. Ultimately, ripeness is a question that only the 
reviewing court can answer, and the Agency cannot satisfy ripeness 
concerns simply by declaring that an agency action is ``final.'' 
Furthermore, JDs are not necessarily ``final'' even as an 
administrative matter. Physical circumstances can change over time, and 
the scope of regulatory jurisdiction when a JD is initially performed 
might be different from the scope of jurisdiction when a permit 
application is reviewed or when an enforcement action is taken. 
Accordingly, we have decided not to address in this rulemaking when a 
JD should be considered a final agency action.
(5) Enforcement-Related Issues
    Many commenters questioned our proposal that, as a general rule, 
JDs made in the context of an enforcement case should not be 
administratively appealable under this rule, unless an after-the-fact 
(ATF) permit application was accepted by the Corps. In the proposed 
rule published in the July 19, 1995, Federal Register notice, the 
district engineer could accept, in exceptional circumstances, an appeal 
of a JD associated with an unauthorized activity without accepting an 
ATF permit application.
    In response to these comments, we continue to believe that normally 
it is not appropriate to provide for appeals of approved JDs associated 
with unauthorized activities, except when the Corps has accepted an ATF 
permit application and denied it. However, we recognize that there can 
be rare cases where the interests of justice, fairness and 
administrative efficiency would be served by allowing the district 
engineer to accept an appeal of an approved JD without an ATF permit 
application. Therefore, we have determined that Sec. 331.11 will be 
adopted as proposed so that the Corps ability to resolve enforcement 
actions expeditiously is preserved and so that there is not disparate 
treatment of JDs embodied in EPA and Corps administrative orders.
    One commenter suggested that under the proposed rule the ATF permit 
process should more appropriately be titled an after-the-fact 
``enforcement'' process. This comment was addressed in the March 9, 
1999, Federal Register document containing the final rule for the 
administrative appeal process for the Corps regulatory program.
    Several commenters responded to our proposal to amend 33 CFR 
326.3(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 discussed in the March 9, 1999, Federal Register 
document, we determined that it would be appropriate to limit the 
tolling agreement, and 326.3(e) was amended by adding subparagraph (v). 
This subparagraph has been revised to include approved JDs.
    Sections 326.3(e)(1)(v) and 331.11(c) state that any person alleged 
to have engaged in an unauthorized activity, who is either allowed to 
appeal an approved JD or files an ATF permit application that is 
accepted and processed by the Corps, agrees to a tolling of the Statute 
of Limitations and must sign an agreement to that effect.

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The tolling agreement would state that, in exchange for the Corps 
accepting the approved JD appeal or ATF permit application, the ATF 
permit applicant or recipient of an approved JD associated with an 
unauthorized activity has agreed that the Statute of Limitations would 
be suspended until one year after the final action has been taken on 
the approved JD appeal, ATF permit decision, or declined ATF individual 
permit.
    The tolling agreement also applies to any succeeding administrative 
appeal of an ATF permit denial or declined ATF individual permit. The 
tolling period would terminate one year after a final decision on (1) 
the appeal of an approved JD; (2) the appeal of a proffered ATF permit; 
(3) the denial of an ATF permit application; or, (4) 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 approved JD appellants 
and 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 suspended. A separate tolling agreement 
is required for each unauthorized activity.
    One commenter asked that the third sentence in Sec. 331.11 be 
revised to indicate that the Corps ``receives'' rather than ``may 
accept'' an after-the-fact permit application, because the commenter 
believes the Corps could not refuse a permit application. This comment 
was addressed in the March 9, 1999, Federal Register document 
containing the final rule for the administrative appeal process for the 
Corps regulatory program.
    Comments were received questioning the basis of the requirement 
that initial corrective measures must be completed before an appeal 
could be accepted. One commenter stated that this requirement left an 
appellant little recourse, a result that appeared to be contrary to the 
purpose of the rule. Another believed that such a requirement was 
premature because it presupposes that the appeal lacks merit. These 
comments were addressed in the March 9, 1999, Federal Register document 
containing the final rule for the administrative appeal process for the 
Corps regulatory program.
    The proposed rule published in the July 19, 1995, Federal Register 
notice, in Sec. 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. In the March 9, 1999, Federal Register document, we addressed 
the comments concerning that issue and explained why that provision was 
omitted from the final rule.
(6) Suggested Procedural Changes and Clarifications for Specific 
Sections
    Section 331.1: We have revised this section to state that approved 
JDs, in addition to permit denials with prejudice and declined 
individual permits, are subject to the administrative appeal process. 
We have also revised paragraph (b) of this section to describe the 
level of decision maker and removed paragraph (c) from this section.
    Section 331.2: In this section, we have modified some definitions 
and added new definitions. These changes are discussed below.
    Affected party: We have modified the definition of this term to 
include landowners and lease, easement, or option holders as affected 
parties. An individual who has an identifiable and substantial legal 
interest in the property is also considered an ``affected party'' for 
the purposes of this rule. We have also inserted the phrase ``approved 
JD'' into the definition since the revised rule now includes approved 
JDs as appealable actions.
    Appealable Action: We have inserted the term ``an approved JD'' 
into the definition of this term since the revised rule now includes 
approved JDs in the administrative appeal process.
    Approved jurisdictional determination: We have added a definition 
of this term to this section.
    Basis of jurisdictional determination: We added a definition of 
this term to Sec. 331.2 since the revised rule now includes approved 
JDs as appealable actions.
    Declined permit: We have inserted the word ``special'' before the 
word ``conditions'' throughout the definition of this term to clarify 
that general conditions required by Corps regulations are not 
appealable. Also, special conditions added to an individual permit are 
usually the reason why proffered individual permits are declined by 
applicants.
    Jurisdictional determination (JD): We have added a definition of 
this term to Sec. 331.2 since the revised rule now includes approved 
JDs as appealable actions.
    Several commenters said that it was not clear that ``jurisdictional 
determinations'' includes ``wetland delineation.'' We have modified the 
language in the introductory comments in the preamble and the language 
in the rule to clarify that wetland delineations and wetland 
delineation verifications are jurisdictional determinations. We believe 
the definition of the term ``jurisdictional determination'' now clearly 
includes both the finding of Corps regulatory jurisdiction (i.e. a 
determination of the presence of waters of the United States on a 
parcel of land) and the delineation of boundaries of waters of the 
United States, including wetlands, on a parcel of land.
    Several commenters noted that some sections of the proposed rule 
referred to the ``current Federal manual for identifying and 
delineating wetlands'' and the 1987 Corps of Engineers Wetlands 
Delineation Manual as if they were the same.
    We acknowledge that this can be confusing. We have changed language 
in the introductory comments in the preamble and language in the rule 
to clarify that the 1987 Corps of Engineers Wetlands Delineation Manual 
is the currently accepted Federal manual for identifying and 
delineating wetlands. Recognizing that a new Federal wetland 
delineation manual or additional guidance or criteria may be developed 
in the future, all references within the rule to a delineation manual 
are made generically as ``the current regulatory criteria for 
identifying and delineating wetlands'' to minimize the impact to this 
rule in the event of adoption of a new manual. We have also inserted 
the phrase ``and associated guidance'' to refer to the guidance that 
was issued by the Corps in 1992 to clarify the use of the 1987 Corps of 
Engineers Wetlands Delineation Manual and address any potential future 
guidance that may be issued for a new Federal wetland delineation 
manual.
    Notification of Appeal Process (NAP): We have modified the 
definition of this term by inserting the phrase ``approved JD'' into 
the list of actions that are subject to the administrative appeal 
process.
    Preliminary JDs: We have added a definition of this term to this 
section.
    Proffered Permit: We added a definition of this term to Sec. 331.2 
to clarify this term to distinguish the

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initial proffered permit which is not appealable from the second 
proffered permit which is an appealable action.
    Request for Appeal (RFA): We have modified the definition of this 
term by inserting the phrase ``approved JD'' into the list of actions 
that are subject to the administrative appeal process. We have also 
added the phrase ``* * * to allow the RO to conduct field tests or 
sampling for purposes directly related to the appeal * * *'' to the end 
of the third sentence to clarify the reasons necessary for the right of 
entry.
    Tolling agreement: We have added a definition of this term to this 
section.
    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.
    This comment was addressed in the March 9, 1999, Federal Register 
document containing the final rule for the administrative appeal 
process for the Corps regulatory program.
    Section 331.3(a)(2): One commenter suggested including the phrase 
``based on the merits of the appeal'' in the first sentence.
    This comment was addressed in the March 9, 1999, Federal Register 
document announcing the final rule for the administrative appeal 
process for the Corps regulatory program.
    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 subject of an administrative appeal.
    These comments were addressed in the March 9, 1999, Federal 
Register document containing the final rule for the administrative 
appeal process for the Corps regulatory program. We have added a 
sentence to this section stating that, for approved JDs, the 
notification must include an NAP fact sheet, an RFA form, and a basis 
for JD.
    Section 331.5: This section has been revised to include approved 
JDs as appealable actions. In Sec. 331.5(a)(2) we have added 
``incorrect application of the current regulatory criteria and 
associated guidance for identifying and delineating wetlands'' as a 
reason for appeal. We have also revised Sec. 331.5(b) by adding three 
more actions that are not appealable. These actions are: approved JDs 
associated with an individual permit where the permit has been accepted 
and signed by the permittee, preliminary JDs, and previously approved 
JDs that have been superceded by another approved JD.
    Section 331.5(b)(1): 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 special 
conditions of the permit. This comment was addressed in the March 9, 
1999, Federal Register document containing the final rule for the 
administrative appeal process for the Corps regulatory program.
    Section 331.6: 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 
the NAP. One commenter suggested that it would be difficult for 
appellants to provide their reasons for requesting an appeal within 60 
days unless the Corps provides a rationale as part of the JD or permit 
denial notification. Another commenter requested that information 
concerning JDs and permit decisions be made available to the public.
    For permit denials and declined individual permits, these comments 
were addressed in the March 9, 1999, Federal Register document 
containing the final rule for the administrative appeal process for the 
Corps regulatory program. We have modified and expanded Sec. 331.4 to 
clarify that for JDs, the affected party will be sent a ``basis of JD'' 
summarizing the information used by the Corps to make the approved JD.
    One commenter suggested modifying the sentence addressing ``right 
of entry'' in Sec. 331.6 of the proposed rule published in the July 19, 
1995, Federal Register notice to specify that any field tests or 
sampling by the RO be ``for purposes directly related to the appeal.'' 
In the final rule published in the March 9, 1999, Federal Register 
document, we had moved this provision from Sec. 331.6 and added it to 
the definition of ``request for appeal'' in Sec. 331.2. In the revised 
rule published today, we have added ``to allow the RO to clarify 
elements of the record or to conduct field test or sampling for 
purposes directly related to the appeal'' to the end of the third 
sentence of that definition.
    We have modified this section to include approved JDs as appealable 
actions. We have also added a sentence to Sec. 331.6(e) to require a 
recipient of a general permit authorization or individual permit to 
complete the appeal process prior to commencing work in waters of the 
United States on the project site, if he does not accept the approved 
JD associated with that general permit authorization or individual 
permit or the special conditions of the proffered individual permit.
    Section 331.7: We have revised this section to include approved JDs 
as appealable actions.
    One commenter asked what the status of a permit application would 
be during the time an appeal of the JD for the project site is being 
considered. We acknowledge that there are no provisions addressing this 
situation in the rule. We understand this concern and are planning to 
issue guidance to the districts which will allow them flexibility to 
take appropriate action on individual applications. The district 
engineer can either continue or suspend the evaluation of the permit 
application until the appeal is resolved, depending on case-specific 
considerations. For instance, it may be in the interest of the 
applicant to continue evaluation of the permit application if the 
applicant is appealing the geographic limits of waters of the United 
States or if the applicant needs to comply with other laws which 
involve extended periods of review, such as consultation under Section 
7 of the Endangered Species Act. However, in cases where the Corps must 
respond to a request for authorization within a specific time period 
(e.g., the 30-day preconstruction notification period for certain 
nationwide permit activities), the district engineer should consider 
the PCN to be incomplete until the administrative appeal process for 
the approved JD has been completed. If the appeal concerns the issue of 
jurisdiction, it may be appropriate to suspend permit evaluation until 
the appeal is resolved, since a subsequent determination of ``no 
jurisdiction'' would obviate the need to continue the permit evaluation 
process. Due to the multitude of factors that must be considered for 
this issue, we have decided not to modify the rule to address this 
issue, but retain flexibility in the regulation and provide guidance to 
Corps districts concurrent with implementation of this rule.
    Section 331.7(c) (Proposed Sec. 331.8(a)): A number of commenters 
recommended that we allow division ROs to conduct site visits on 
appeals of JDs. The JD appeal process proposed in the July 19, 1995, 
Federal Register notice was a two level process, with the first level 
appeal to the district office that conducted the original JD. The 
second level appeal would have been to the division office. The 
district RO would have been allowed to conduct site visits, but not the 
division RO. In the interests of fairness to appellants, program 
efficiency, and cost effectiveness, we

[[Page 16491]]

have modified the JD appeal process to a one level appeal to the 
division engineer. Consequently, the division RO will conduct site 
visits, if necessary, for the purpose of clarifying the administrative 
record.
    Another commenter indicated that we should be required to obtain 
the landowner's permission before conducting a site inspection and that 
the landowner and his consultants be allowed to attend.
    We believe that if a landowner wishes to request a review of a JD, 
he must make the site available to the district regulatory staff 
because a site visit is, under most circumstances, essential to 
adequately review a particular JD. The RFA is conditioned to grant the 
Corps right of entry to the project site. Section 331.7(c) requires the 
RO to notify the appellant and the appellant's authorized agents at 
least 15 days prior to the site investigation, to provide the appellant 
and his authorized agents the opportunity to attend the site 
investigation.
    We received many comments concerning the deadlines proposed for 
appeals of approved JDs. Only one commenter strongly opposed the 
proposed deadlines; that commenter wanted all decisions reached within 
120 days. Most of the commenters acknowledged that there may be 
seasonal constraints involved in making wetland determinations, unique 
site conditions, or other circumstances that may affect the timeliness 
of such decisions. One commenter wanted even greater flexibility than 
the proposed 12 month time period when there are extenuating 
circumstances, but another commenter was concerned that Corps districts 
may request an extension of time due to a ``wet'' season to gain 
additional time and delay their decisions. Two commenters suggested we 
follow the same time deadlines as NRCS.
    After considering these comments and our proposed deadlines, we 
believe the time periods are reasonable, and we have retained them in 
the final rule. We will monitor the JD appeals program and if 
significant delays are occurring, we will revisit this issue. We have 
also added text to this section that explains how extenuating 
circumstances concerning site visits, such as seasonal hydrology, 
winter weather, or disturbed site conditions, should be addressed.
    Section 331.7(d) (Proposed as Sec. 331.7(d)(1)): Several commenters 
requested clarification of the purpose, location, and notification 
requirements for the approved JD appeal meeting. These comments, 
sometimes contradictory, suggested that the meetings should be: (1) 
informal; (2) more structured; (3) limited to clarification of the 
administrative record; (4) open to the oral presentation of the 
appellant's case; and (5) limited to the district staff asking 
questions rather than providing an opportunity to discuss settlement. 
One commenter suggested that approved JD appeal meetings should be held 
in the Corps office.
    The language of this section has been modified to clarify that 
these meetings will be scheduled by the RO to review and discuss issues 
directly related to the approved JD under appeal. Additionally, we have 
revised this section to state that that the approved JD meeting should 
be held at a location of reasonable convenience to the appellant and 
near the parcel subject to the approved JD, since the site may be a 
considerable distance from the Corps office. Consequently, we 
anticipate that the RO may have to travel frequently and have included 
this factor in our estimate of the cost of the appeal process.
    Section 331.7(e)(1) (Formerly Sec. 331.7(d)(1)): 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 addressed this comment in the March 9, 1999, Federal Register 
document announcing the final rule for the administrative appeal 
process for the Corps regulatory program.
    One commenter suggested that it be made mandatory that complete 
transcripts be prepared for all presentations and discussions occurring 
during the appeal conference.
    This comment was addressed in the March 9, 1999, Federal Register 
document containing the final rule for the administrative appeal 
process for the Corps regulatory program.
    Section 331.7(f) (Formerly Sec. 331.7(e)): One commenter suggested 
that the RO be allowed to communicate with both the appellant and the 
Corps district during the appeal process. Another commenter concurred 
with our initial 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.
    We addressed these comments in the March 9, 1999, Federal Register 
document containing the final rule for the administrative appeal 
process for the Corps regulatory program. Those responses also apply to 
the administrative appeal process for approved JDs.
    Section 331.7(g) (Formerly Sec. 331.7(f)): We have revised this 
section to include approved JDs.
    Section 331.10: We have made a few minor revisions to this section 
to clarify that this section applies to Corps permit decisions and not 
to approved JDs.
    In Sec. 331.10(a), we have clarified that the final letter to the 
applicant will include the original permit denial or proffered permit.
    In Sec. 331.10(b), the fourth sentence has been revised by adding 
the phrase ``permit decisions'' to clarify that the requirements listed 
in that sentence apply only to permit denials or declined individual 
permits.
    One commenter observed that this section was silent with respect to 
the roles of the EPA and the NRCS in final agency decisions regarding 
JDs. This commenter argued that JDs are not only the responsibility of 
the Corps and that the appeals process should address other authorities 
in this regard. This rule is promulgated under authority of the Corps 
of Engineers and thus addresses only Corps approved jurisdictional 
determinations. Whether or not appeals are available for jurisdictional 
determinations by other agencies and the process for such appeals lies 
within the respective authorities of NRCS and EPA. Thus, this rule does 
not provide for appeal of such jurisdictional determinations, and 
nothing in this rule is intended to alter or abridge the authority of 
any other federal agency with respect to jurisdictional determinations 
for which they are responsible. To further clarify this issue the 
definition for ``Approved Jurisdictional Determination'' provides that 
such JDs, which are the only JDs that can be appealed, are ``Corps'' 
determinations.
    Section 331.11: We have revised this section to include approved 
JDs associated with permit denials and declined individual permits 
attendant with after-the-fact permit applications. We have also adopted 
the language in the July 19, 1995, proposed regulation indicating that 
normally approved JDs associated with unauthorized activities are not 
appealable except where an after the fact permit application has been 
accepted by the Corps and denied, unless the Corps determines that 
extraordinary circumstances warranted such an appeal.
    In the last sentence of Sec. 331.11(c), we have also replaced the 
word ``written'' with ``signed'' to clarify that a signed tolling 
agreement must be submitted to the district engineer before an after-
the-fact permit application or an

[[Page 16492]]

administrative appeal associated with an unauthorized activity will be 
accepted by the district engineer.
    Section 331.12: We have revised the last sentence of this section 
to clarify that this section only applies to permit denials or 
proffered permits.
(7) General Expressions of Opposition and Support
    A number of comments addressed 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.
    We addressed these comments in the March 9, 1999, Federal Register 
document containing the final rule for the administrative appeal 
process for the Corps regulatory program.

III. Application of Rule to Prior Regulatory Decisions

    Affected parties may appeal approved JDs for those determinations 
occurring on or after March 28, 2000. Such requests will be accepted 
for administrative appeal in accordance with this regulation. Approved 
JDs completed prior to the publication date of the final regulation 
will not be accepted under the appeal process. During the initial 
implementation period of these regulations, the RO may delay the 
processing an RFA for up to 60 days after March 28, 2000.
    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 comment was 
addressed in the March 9, 1999, Federal Register document containing 
the final rule for the administrative appeal process for the Corps 
regulatory program.

IV. 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 prepares appropriate environmental 
documentation, including Environmental Impact Statements when required, 
for all permit decisions. Therefore, environmental documentation under 
the National Environmental Policy Act (NEPA) is not required for the 
revision of this rule. Furthermore, JDs do not authorize an applicant 
or landowner to conduct work in waters of the United States if a 
Section 404 and/or Section 10 permit is required. JDs only describe 
presence and extent of waters of the United States based on standard 
technical criteria. Therefore, environmental documentation under the 
NEPA is not required for these actions. Moreover, this regulation for 
administrative appeal only establishes a one-level review for approved 
JDs, 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.

V. Executive Order 12291 and the Regulatory Flexibility Act

    We do not believe that this revision of the final rule meets the 
definition of a major rule under Executive Order 12291, and therefore 
we do not believe that a regulatory impact analysis is required. The 
revised final rule should reduce the burden on the public by offering 
an administrative appeal process for certain Corps decisions, and, in 
many 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 revision of the final rule will 
have a significant impact on a substantial number of small entities 
pursuant to Section 605(b) of the Regulatory Flexibility Act of 1980, 
because the revised final rule only creates an optional review of 
jurisdictional determinations 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 
prior to March 9, 1999, could only seek to have the decision reviewed 
through the Federal courts. In addition, this rule establishes an 
opportunity for affected parties to appeal approved JDs, which was not 
available in the past. Furthermore, since the administrative appeal 
process is optional (i.e., 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: 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

    Administrative practice and procedure, Dams, Environmental 
protection, Intergovernmental relations, Navigation (water), Water 
pollution control, Waterways.

33 CFR Part 326

    Administrative practice and procedure, Intergovernmental relations, 
Investigations, Law enforcement, Navigation (water), Penalties, Water 
pollution control, Waterways.

33 CFR Part 331

    Administrative practice and procedure, Environmental protection, 
Navigation (water), Water pollution control, Waterways.

    Dated: March 22, 2000.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works), Department of the Army.

    Accordingly, 33 CFR, Chapter II is amended as follows:

PART 320--GENERAL REGULATORY POLICIES

    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. Amend Sec. 320.1 by revising the last five sentences of 
paragraph (a)(2) to read as follows:


Sec. 320.1  Purpose and scope.

    (a) * * *
    (2) * * * A district engineer's decision on an approved 
jurisdictional determination, 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 ``approved jurisdictional determination,'' ``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)(1)). An affected party must exhaust any administrative appeal 
available pursuant to 33 CFR Part 331 and receive a final Corps 
decision on the appealed action prior to filing a lawsuit in the 
Federal courts (see 33 CFR 331.12).
* * * * *

[[Page 16493]]

PART 326--ENFORCEMENT

    3. 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; 33 U.S.C. 2101.


    4. Amend Sec. 326.3 to revise paragraph (e)(1)(v) to read as 
follows:


Sec. 326.3  Unauthorized activities.

* * * * *
    (e) * * *
    (1) * * *
    (v) No appeal of an approved jurisdictional determination (JD) 
associated with an unauthorized activity or 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 appeals 
an approved JD associated with an unauthorized activity or applies for 
an after-the-fact permit, where the application is accepted and 
evaluated by the Corps, thereby agrees that the statute of limitations 
regarding any violation associated with that application is suspended 
until one year after the final Corps decision, as defined at 33 CFR 
331.10. Moreover, the recipient of an approved JD associated with an 
unauthorized activity or an application 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 party agrees that the statute of limitations will be 
suspended (i.e., 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.
* * * * *

    5. Revise part 331 to read as follows:

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 to Part 331--Administrative Appeal Process for Permit 
Denials and Proffered Permits
Appendix B to Part 331--Applicant Options With Initial Proffered 
Permit
Appendix C to Part 331--Administrative Appeal Process for Approved 
Jurisdictional Determinations
Appendix D to Part 331--Process for Unacceptable Request for Appeal

    Authority: 33 U.S.C. 401 et seq., 1344, 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 approved 
jurisdictional determinations (JDs), permit applications denied with 
prejudice, and declined permits. The appeal process will allow the 
affected party to pursue an administrative appeal of certain 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) Level of decision maker. Appealable actions decided 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). References to the division engineer in this 
Part shall be understood as also referring to a higher level Army 
official when such official 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 part. In addition, the following terms are 
defined for the purposes of this part:
    Affected party means a permit applicant, landowner, a lease, 
easement or option holder (i.e., an individual who has an identifiable 
and substantial legal interest in the property) who has received an 
approved JD, permit denial, or 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 an approved JD, a permit denial, or a 
declined permit, as these terms are defined in this section.
    Appellant means an affected party who has filed an appeal of an 
approved JD, a permit denial or declined permit under the criteria and 
procedures of this part.
    Approved jurisdictional determination means a Corps document 
stating the presence or absence of waters of the United States on a 
parcel or a written statement and map identifying the limits of waters 
of the United States on a parcel. Approved JDs are clearly designated 
appealable actions and will include a basis of JD with the document.
    Basis of Jurisdictional determination is a summary of the 
indicators that support the Corps approved JD. Indicators supporting 
the Corps approved JD can include, but are not limited to: indicators 
of wetland hydrology, hydric soils, and hydrophytic plant communities; 
indicators of ordinary high water marks, high tide lines, or mean high 
water marks; indicators of adjacency to navigable or interstate waters; 
indicators that the wetland or waterbody is of part of a tributary 
system; or indicators of linkages between isolated water bodies and 
interstate or foreign commerce.
    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 special 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 special 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

[[Page 16494]]

the project will be attached to the denial determination in all cases.
    Jurisdictional determination (JD) means a written Corps 
determination that a wetland and/or waterbody is subject to regulatory 
jurisdiction under Section 404 of the Clean Water Act (33 U.S.C. 1344) 
or a written determination that a waterbody is subject to regulatory 
jurisdiction under Section 9 or 10 of the Rivers and Harbors Act of 
1899 (33 U.S.C. 401 et seq.). Additionally, the term includes a written 
reverification of expired JDs and a written reverification of JDs where 
new information has become available that may affect the previously 
written determination. For example, such geographic JDs may include, 
but are not limited to, one or more of the following determinations: 
the presence or absence of wetlands; the location(s) of the wetland 
boundary, ordinary high water mark, mean high water mark, and/or high 
tide line; interstate commerce nexus for isolated waters; and adjacency 
of wetlands to other waters of the United States. All JDs will be in 
writing and will be identified as either preliminary or approved. JDs 
do not include determinations that a particular activity requires a DA 
permit.
    Notification of Appeal Process (NAP) means a fact sheet that 
explains the criteria and procedures of the administrative appeal 
process. Every approved JD, permit denial, and every proffered 
individual permit returned for reconsideration after review by the 
district engineer in accordance with Sec. 331.6(b) will have an NAP 
form attached.
    Notification of Applicant Options (NAO) means a fact sheet 
explaining an applicant's options with a proffered individual permit 
under the administrative appeal process.
    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).
    Preliminary JDs are written indications that there may be waters of 
the United States on a parcel or indications of the approximate 
location(s) of waters of the United States on a parcel. Preliminary JDs 
are advisory in nature and may not be appealed. Preliminary JDs include 
compliance orders that have an implicit JD, but no approved JD.
    Proffered permit means a permit that is sent to an applicant that 
is in the proper format for the applicant to sign (for a standard 
permit) or accept (for a letter of permission). The term ``initial 
proffered permit'' as used in this part refers to the first time a 
permit is sent to the applicant. The initial proffered permit is not an 
appealable action. However, the applicant may object to the terms or 
conditions of the initial proffered permit and, if so, a second 
reconsidered permit will be sent to the applicant. The term ``proffered 
permit'' as used in this part refers to the second permit that is sent 
to the applicant. Such proffered permit is an appealable action.
    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 approved JD, denied 
permit, or declined permit, the reason(s) for the appeal, and any 
supporting data and information. No new information may be submitted. A 
grant of right of entry for the Corps to the project site is a 
condition of the RFA to allow the RO to clarify elements of the record 
or to conduct field tests or sampling for purposes directly related to 
the appeal. A standard RFA form will be provided to the affected party 
with the NAP form. For appeals of decisions related to unauthorized 
activities a signed tolling agreement, as required by 33 CFR 
326.3(e)(1)(v), must be included with the RFA, unless a signed tolling 
agreement has previously been furnished to the Corps district office. 
The affected party initiates the administrative appeal process by 
providing an acceptable RFA to the appropriate Corps of Engineers 
division office. An acceptable RFA contains all the required 
information and provides reasons for appeal that meets the criteria 
identified in Sec. 331.5.
    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.
    Tolling agreement refers to a document signed by any person who 
appeals an approved JD associated with an unauthorized activity or 
applies for an after-the-fact (ATF) permit, where the application is 
accepted and evaluated by the Corps. The agreement states that the 
affected party agrees to have the statute of limitations regarding any 
violation associated with that approved JD or application ``tolled'' or 
temporarily set aside until one year after the final Corps decision, as 
defined at Sec. 331.10. No ATF permit application or administrative 
appeal associated with an unauthorized activity will be accepted until 
a tolling agreement is furnished to the district engineer.


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. With the exception of JDs, as described in this 
paragraph (a)(1), the division engineer may not delegate any authority 
or responsibility described in this part as that of the division 
engineer. For approved JDs only, the division engineer may delegate any 
authority or responsibility described in this part as that of the 
division engineer, including the final appeal decision. In such cases, 
any delegated authority must be granted to an official that is at the 
same or higher grade level than the grade level of the official that 
signed the approved JD. Regardless of any delegation of authority or 
responsibility for ROs or for final appeal decisions for approved JDs, 
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 in paragraph (a)(1) of this section. 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 nor to 
make an approved JD, 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 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

[[Page 16495]]

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 
those activities that are eligible for an appeal. For approved JDs, the 
notification must include an NAP fact sheet, an RFA form, and a basis 
of JD. 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 an approved JD, a permit denial, or 
a declined permit. An individual permit that has been signed by the 
applicant, and subsequently unilaterally modified by the district 
engineer pursuant to 33 CFR 325.7, may be appealed under this process, 
provided that the applicant has not started work in waters of the 
United States authorized by the permit. The RFA must be received by the 
division engineer within 60 days of the date of the NAP.
    (2) Reasons for appeal. The reason(s) for requesting an appeal of 
an approved JD, a permit denial, or a declined permit must be 
specifically stated in the RFA and must be more than a simple request 
for appeal because the affected party did not like the approved JD, 
permit decision, or the permit conditions. Examples of reasons for 
appeals include, but are not limited to, the following: A procedural 
error; an incorrect application of law, regulation or officially 
promulgated policy; omission of material fact; incorrect application of 
the current regulatory criteria and associated guidance for identifying 
and delineating wetlands; incorrect application of the Section 
404(b)(1) Guidelines (see 40 CFR Part 230); or use of incorrect data. 
The reasons for appealing a permit denial or a declined permit may 
include jurisdiction issues, whether or not a previous approved JD was 
appealed.
    (b) Actions not appealable. An action or decision is not subject to 
an administrative appeal under this part if it falls into one or more 
of the following categories:
    (1) An individual permit decision (including a letter of permission 
or a standard permit with special conditions), where the permit has 
been accepted and signed by the permittee. By signing the permit, the 
applicant waives all rights to appeal the terms and conditions of the 
permit, unless the authorized work has not started in waters of the 
United States and that issued permit is subsequently modified by the 
district engineer pursuant to 33 CFR 325.7;
    (2) Any site-specific matter that has been the subject of a final 
decision of the Federal courts;
    (3) A final Corps decision that has resulted from additional 
analysis and evaluation, as directed by a final appeal decision;
    (4) A permit denial without prejudice or a declined permit, where 
the controlling factor cannot be changed by the Corps decision maker 
(e.g., the requirements of a binding statute, regulation, state Section 
401 water quality certification, state coastal zone management 
disapproval, etc. (See 33 CFR 320.4(j));
    (5) A permit denial case where the applicant has subsequently 
modified the proposed project, because this would constitute an amended 
application that would require a new public interest review, rather 
than an appeal of the existing record and decision;
    (6) Any request for the appeal of an approved JD, a denied permit, 
or a declined permit where the RFA has not been received by the 
division engineer within 60 days of the date of the NAP;
    (7) A previously approved JD that has been superceded by another 
approved JD based on new information or data submitted by the 
applicant. The new approved JD is an appealable action;
    (8) An approved JD associated with an individual permit where the 
permit has been accepted and signed by the permittee;
    (9) A preliminary JD; or
    (10) A JD associated with unauthorized activities except as 
provided in Sec. 331.11.


Sec. 331.6  Filing an appeal.

    (a) An affected party appealing an approved JD, permit denial or 
declined permit must submit an RFA that is received by the division 
engineer within 60 days of the date of the NAP. Flow charts 
illustrating the appeal process are in the Appendices of this part.
    (b) In the case where an applicant objects to an initial proffered 
individual permit, the appeal process proceeds as follows. To initiate 
the appeal process regarding the terms and special conditions of the 
permit, the applicant must write a letter to the district engineer 
explaining his objections to the permit. The district engineer, upon 
evaluation of the applicant's objections, may: Modify the permit to 
address all of the applicant's objections or modify the permit to 
address some, but not all, of the applicant's objections, or not modify 
the permit, having determined that the permit should be issued as 
previously written. In the event that the district engineer agrees to 
modify the initial proffered individual permit to address all of the 
applicant's objections, the district engineer will proffer such 
modified permit to the applicant, enclosing an NAP fact sheet and an 
RFA form as well. Should the district engineer modify the initial 
proffered individual permit to address some, but not all, of the 
applicant's objections, the district engineer will proffer such 
modified permit to the applicant, enclosing an NAP fact sheet, RFA 
form, and a copy of the decision document for the project. If the 
district engineer does not modify the initial proffered individual 
permit, the district engineer will proffer the unmodified permit to

[[Page 16496]]

the applicant a second time, enclosing an NAP fact sheet, an RFA form, 
and a copy of the decision document. If the applicant still has 
objections, after receiving the second proffered permit (modified or 
unmodified), the applicant may decline such proffered permit; this 
declined permit may be appealed to the division engineer upon submittal 
of a complete RFA form. The completed RFA must be received by the 
division engineer within 60 days of the NAP. A flow chart of an 
applicant's options for an initial proffered individual permit is shown 
in Appendix B of this part. A flow chart of the appeal process for a 
permit denial or a declined permit (i.e., a proffered permit declined 
after the Corps decision on the applicant's objections to the initial 
proffered permit) is shown in Appendix A of this part. A flow chart of 
the appeal process for an approved jurisdictional determination is 
shown in Appendix C of this part. A flow chart of the process for when 
an unacceptable request for appeal is returned to an applicant is shown 
in Appendix D of this part.
    (c) An approved JD will be reconsidered by the district engineer if 
the affected party submits new information or data to the district 
engineer within 60 days of the date of the NAP. (An RFA that contains 
new information will either be returned to the district engineer for 
reconsideration or the appeal will be processed if the applicant 
withdraws the new information.) The district engineer has 60 days from 
the receipt of such new information or data to review the new 
information or data, consider whether or not that information changes 
the previously approved JD, and, reissue the approved JD or issue a new 
approved JD. The reconsideration of an approved JD by the district 
engineer does not commence the administrative appeal process. The 
affected party may appeal the district engineer's reissued or new 
approved JD.
    (d) The district engineer may not delegate his signature authority 
to deny the permit with prejudice or to return an individual permit to 
the applicant with unresolved objections. The district engineer may 
delegate signature authority for JDs, including approved JDs.
    (e) Affected parties may appeal approved JDs where the 
determination was dated after March 28, 2000, but may not appeal 
approved JDs dated on or before March 28, 2000. The Corps will begin 
processing JD appeals no later than May 30, 2000. All appeals must meet 
the criteria set forth in Sec. 331.5. If work is authorized by either 
general or individual permit, and the affected party wishes to request 
an appeal of the JD associated with the general permit authorization or 
individual permit or the special conditions of the proffered individual 
permit, the appeal must be received by the Corps and the appeal process 
concluded prior to the commencement of any work in waters of the United 
States and prior to any work that could alter the hydrology of waters 
of the United States.


Sec. 331.7  Review procedures.

    (a) General. The administrative appeal process for approved JDs, 
permit denials, and declined 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 in making 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 approved JDs, permit denials, or 
declined permits. Upon receipt of an RFA, the RO shall review the RFA 
to determine whether the RFA is acceptable (i.e., complete and meets 
the criteria for appeal). If the RFA is acceptable, the RO will so 
notify the appellant in writing within 30 days of the receipt of the 
acceptable RFA. If the RO determines that the RFA is not complete the 
RO will so notify the appellant in writing within 30 days of the 
receipt of the RFA detailing the reason(s) why the RFA is not complete. 
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 
or the RO's letter. The revised RFA must be received by the division 
engineer within 30 days of the date of the Corps letter indicating that 
the initial RFA is not acceptable. If the RO determines that the 
revised RFA is still not complete, the RO will again so notify the 
appellant in writing within 30 days of the receipt of the RFA detailing 
the reason(s) why the RFA is not complete. If the division engineer 
determines that the revised RFA is still not acceptable, 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 an acceptable 
RFA, the RO should determine if a site investigation is needed to 
clarify the administrative record. The RO should normally conduct any 
such site investigation within 60 days of receipt of an acceptable 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 any site investigation at the earliest practicable time 
acceptable to both the RO and the appellant. The RO, the appellant, the 
appellant's agent(s) and the Corps district staff are authorized 
participants at any 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. For permit denials and 
declined permit appeals, any site investigation should be scheduled in 
conjunction with the appeal review conference, where practicable. If 
extenuating circumstances occur at the site that preclude the appellant 
and/or the RO from conducting any required site visit within 60 days, 
the RO may extend the time period for review. Examples of extenuating 
circumstances may include seasonal hydrologic conditions, winter 
weather, or disturbed site conditions. The site visit must be conducted 
as soon as practicable as allowed by the extenuating circumstances, 
however, in no case shall any site visit extend the total appeals 
process beyond twelve months from the date of receipt of the RFA. If 
any site visit delay is necessary, the RO will notify the appellant in 
writing.
    (d) Approved JD appeal meeting. The RO may schedule an informal 
meeting moderated by the RO or conference call with the appellant, his 
authorized agent, or both, and appropriate Corps regulatory personnel 
to review and discuss issues directly related to the appeal for the 
purpose of clarifying the administrative record. If a meeting is held, 
the appellant will bear his own

[[Page 16497]]

costs associated with necessary arrangements, exhibits, travel, and 
representatives. The approved JD appeal meeting should be held at a 
location of reasonable convenience to the appellant and near the site 
where the approved JD was conducted.
    (e) Permit denials and declined permits appeal conference. 
Conferences held in accordance with this part 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 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.
    (f) Basis of decision and communication with the RO. The appeal of 
an approved JD, a permit denial, or a declined permit is limited to the 
information contained in the administrative record by the date of the 
NAP for the application or approved JD, the proceedings of the appeal 
conference, and any relevant information gathered by the RO as 
described in Sec. 331.5. 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.
    (g) Applicability of appeal decisions. Because a decision to 
determine geographic jurisdiction, deny a permit, or condition a permit 
depends on the facts, circumstances, and physical conditions particular 
to the specific project and/or 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 jurisdictional determination 
or 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 Division Engineer will make a final decision on the merits of 
the appeal at the earliest practicable time, in accordance with the 
following time limits. The administrative appeal process is initiated 
by the receipt of an RFA by the division engineer. The

[[Page 16498]]

Corps will review the RFA to determine whether the RFA is acceptable. 
The Corps will notify the appellant accordingly within 30 days of the 
receipt of the RFA in accordance with Sec. 331.7(b). If the Corps 
determines that the RFA is acceptable, the RO will immediately request 
the administrative record from the district engineer. The division 
engineer will normally make a final decision on the merits of the 
appeal within 90 days of the receipt of an acceptable RFA unless any 
site visit is delayed pursuant to Sec. 331.7(c). In such case, the RO 
will complete the appeal review and the division engineer will make a 
final appeal decision within 30 days of the site visit. In no case will 
a site visit delay extend the total appeal process beyond twelve months 
from the date of receipt of an acceptable RFA.


Sec. 331.9  Final appeal decision.

    (a) In accordance with the authorities contained in Sec. 331.3(a), 
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 applicant 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, confirming the district engineer's initial 
decision, and sending the permit denial or the proffered permit for 
signature to the appellant; 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. For permit decisions, 
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 permit decision. Nothing in this part precludes the agencies' 
authorities pursuant to Section 404(q) of the Clean Water Act.


Sec. 331.11  Unauthorized activities.

    Approved JDs, permit denials, and declined permits associated with 
after-the-fact permit applications are appealable actions for the 
purposes of this part. If the Corps accepts an after-the-fact permit 
application, an administrative appeal of an approved JD, permit denial, 
or declined permit 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 an approved JD 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 an approved JD, if 
the district engineer determines that the interests of justice, 
fairness, and administrative efficiency would be served thereby. 
Furthermore, no such appeal will be accepted if the unauthorized 
activity is the subject of a referral to the Department of Justice or 
the EPA, or for which the EPA has the lead enforcement authority or has 
requested lead enforcement authority.
    (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 appeals an 
approved JD associated with an unauthorized activity or 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 approved JD or application is tolled 
until one year after the final Corps decision, as defined at 
Sec. 331.10. Moreover, the recipient of an approved JD associated with 
an unauthorized activity or 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 administrative 
appeal associated with an unauthorized activity or after-the-fact 
permit application will be accepted until such signed tolling

[[Page 16499]]

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 a proffered 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 permit decision is made in accordance with Sec. 331.10.

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[[Page 16500]]

Appendix A to Part 331--Administrative Appeal Process for Permit 
Denials and Proffered Permits
[GRAPHIC] [TIFF OMITTED] TR28MR00.000


[[Page 16501]]



Appendix B to Part 331--Applicant Options With Initial Proffered 
Permit
[GRAPHIC] [TIFF OMITTED] TR28MR00.001


[[Page 16502]]



Appendix C to Part 331--Administrative Appeal Process for Approved 
Jurisdictional Determinations
[GRAPHIC] [TIFF OMITTED] TR28MR00.002


[[Page 16503]]



Appendix D to Part 331--Process for Unacceptable Request for Appeal
[GRAPHIC] [TIFF OMITTED] TR28MR00.003

[FR Doc. 00-7439 Filed 3-27-00; 8:45 am]
BILLING CODE 3710-92-C