Tuesday,

March 28, 2000

Part III

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; Final

Rule

16486 Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations

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.

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

Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations 16487

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

§ 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.

16488 Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations

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

§ 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.

Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations 16489

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 postdecision 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 § 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 § 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

§ 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

§ 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 § 331.2 to

clarify this term to distinguish the

16490 Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations

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 § 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 § 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 § 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 § 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 § 331.6

and added it to the definition of

‘‘request for appeal’’ in § 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 § 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 § 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

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

§ 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

§ 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 § 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 § 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 § 331.10(a), we have clarified that

the final letter to the applicant will

include the original permit denial or

proffered permit.

In § 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 § 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-thefact permit application or an

16492 Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations

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 timeconsuming 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 § 320.1 by revising the last

five sentences of paragraph (a)(2) to read

as follows:

§ 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).

* * * * *

Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations 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 § 326.3 to revise paragraph

(e)(1)(v) to read as follows:

§ 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-thefact 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.

§ 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 § 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.

§ 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

16494 Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations

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

§ 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 § 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

§ 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.

§ 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

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this Corps official shall appoint a

qualified individual as the RO to

conduct the appeal process.

(b) General—(1) Independence. The

RO will not perform, or have been

involved with, the preparation, review,

or decision making of the action being

appealed. The RO will be independent

and impartial in reviewing any appeal,

and when assisting the division

engineer to make a decision on the

merits of the appeal.

(2) Review. The RO will conduct an

independent review of the

administrative record to address the

reasons for the appeal cited by the

applicant in the RFA. In addition, to the

extent that it is practicable and feasible,

the RO will also conduct an

independent review of the

administrative record to verify that the

record provides an adequate and

reasonable basis supporting the district

engineer’s decision, that facts or

analysis essential to the district

engineer’s decision have not been

omitted from the administrative record,

and that all relevant requirements of

law, regulations, and officially

promulgated Corps policy guidance

have been satisfied. Should the RO

require expert advice regarding any

subject, he may seek such advice from

any employee of the Corps or of another

Federal or state agency, or from any

recognized expert, so long as that person

had not been previously involved in the

action under review.

§ 331.4 Notification of appealable actions.

Affected parties will be notified in

writing of a Corps decision on 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.

§ 331.5 Criteria.

(a) Criteria for appeal—(1)

Submission of RFA. The appellant must

submit a completed RFA (as defined at

§ 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 § 331.11.

§ 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

16496 Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations

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 § 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.

§ 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 § 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

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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 § 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 § 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.

§ 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

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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

§ 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 § 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.

§ 331.9 Final appeal decision.

(a) In accordance with the authorities

contained in § 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.

§ 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.

§ 331.11 Unauthorized activities.

Approved JDs, permit denials, and

declined permits associated with afterthe-fact permit applications are

appealable actions for the purposes of

this part. If the Corps accepts an afterthe-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

§ 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-thefact 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

Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations 16499

agreement is furnished to the district

engineer.

§ 331.12 Exhaustion of administrative

remedies.

No affected party may file a legal

action in the Federal courts based on a

permit denial or 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 § 331.10.

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16500 Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations

Appendix A to Part 331—Administrative Appeal Process for Permit Denials and Proffered Permits

Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations 16501

Appendix B to Part 331—Applicant Options With Initial Proffered Permit

16502 Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations

Appendix C to Part 331—Administrative Appeal Process for Approved Jurisdictional Determinations

Federal Register / Vol. 65, No. 60 / Tuesday, March 28, 2000 / Rules and Regulations 16503

Appendix D to Part 331—Process for Unacceptable Request for Appeal

[FR Doc. 00–7439 Filed 3–27–00; 8:45 am]

BILLING CODE 3710–92–C