[Federal Register Volume 64, Number 45 (Tuesday, March 9, 1999)]
[Rules and Regulations]
[Pages 11708-11721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5734]
[[Page 11707]]
_______________________________________________________________________
Part IV
Department of Defense
_______________________________________________________________________
Department of the Army, Corps of Engineers
_______________________________________________________________________
33 CFR Parts 320, 326, and 331
Administrative Appeal Process Establishment for the Regulatory Program
of the Corps of Engineers; Final Rule
Federal Register / Vol. 64, No. 45 / Tuesday, March 9, 1999 / Rules
and Regulations
[[Page 11708]]
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Parts 320, 326, and 331
Final Rule Establishing an Administrative Appeal Process for the
Regulatory Program of the Corps of Engineers
AGENCY: Army Corps of Engineers, DoD.
ACTION: Final rule.
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SUMMARY: On July 19, 1995, the Corps of Engineers published notice in
the Federal Register of a proposal to establish an administrative
appeal process for the regulatory program of the Corps of Engineers,
(33 CFR Parts 320-331). The notice period expired on September 5, 1995.
The Corps has evaluated and addressed the issues raised in comments
submitted in response to the proposed rule. Appropriate changes have
been made to clarify and enhance the administrative appeal process for
permit denials and declined permits published herein as a Final Rule.
EFFECTIVE DATE: This rule becomes effective on August 6, 1999.
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 working group developed a comprehensive,
40-point plan (the Plan) to enhance wetlands protection, while making
wetlands regulations more fair, flexible, and effective for everyone,
including America's small landowners. The Plan was issued on August 24,
1993. It emphasizes improving Federal wetlands policy through various
means, including streamlining wetlands permitting programs. One of
several approaches identified in the Plan for achieving such
streamlining was through the development by the Corps of an
administrative appeal process, to be implemented after public
rulemaking. The Plan provides that the process will be designed to
allow for administrative appeal of Section 404 geographic
jurisdictional determinations and permit denials.
On July 19, 1995, the Corps of Engineers published notice in the
Federal Register of a proposal to establish an administrative appeal
process for the regulatory program of the Corps of Engineers. The
notice period expired on September 5, 1995. The Corps has evaluated and
addressed the issues raised in comments submitted in response to the
proposed rule. Appropriate changes have been made to clarify and
enhance the administrative appeal process for permit denials and
declined permits published herein as a Final Rule. In Fiscal Years 1995
to 1999 the President's budgets have included money to implement an
administrative appeal process for permit denials and jurisdiction
determinations. From FY 95 through FY 97 the Congressional
appropriation for the Corps regulatory program was held level at $101
million. In FY 98 Congress appropriated $106 million. This funding in
FY 98 allowed the Corps to move toward finalizing regulations for
administrative appeals of permit denials and declined permits. Congress
held the Corps regulatory program budget level again in FY 99 at $106
million. The President's Budget request for FY 00 of $117 million
includes funds necessary to implement the appeals process for
jurisdictional determinations as well as the appeals process for permit
denials that we are finalizing with this rule. Should Congress provide
the full request of $117 million in FY 00, we will proceed to implement
the appeals process for jurisdictional determinations.
The rule adopted herein provides for the administrative appeal
within the Corps of a denial with prejudice by the district engineer of
a Department of the Army permit application, as well as the appeal of a
declined proffered individual permit. Consistent with the Plan and as
explained below, third parties may participate in the appeal process.
This rule does not establish, at this time, an appeal process for
jurisdictional determinations or wetland delineations. We have
carefully considered the issue, and have determined that given the
resources available to the Corps at this time, we would be unable to
administer an appeal process for jurisdictional determinations and
wetland delineations in a timely manner without adversely affecting the
overall performance of the Corps regulatory program. The employees
dedicated to these new tasks would have to be taken from the existing
district staffs, with the result that each district would have fewer
project managers to evaluate permit applications and administer the
rest of the program. Given this situation, we believe that our efforts
should be concentrated to the extent possible on maintaining and
improving the overall performance of the Corps regulatory program.
Should additional resources become available at a later date, we will
consider expanding the appeal process to include jurisdictional
determinations and wetland delineations.
II. Comments on the Proposed Rule
A. General
Comments received on the proposed rule can be summarized under
several broad headings. They are: (1) The type of actions reviewed and
the extent of the review; (2) The identity and authority of the review
officer (RO); (3) The identity and rights of appellants; (4)
Enforcement-related issues; (5) Suggested procedural changes and
clarifications; and (6) General expressions of both opposition and
support of an administrative appeal process. The comments concerning
each of these topics, including those that pertain to the appeal of
permit denials and the terms and conditions of proffered individual
permits, were carefully considered, and are addressed herein. Comments
that pertain solely to the appeal of jurisdictional determinations are
not addressed in this document. Consideration of those comments will be
addressed at such time as the Corps may adopt an appeal process for
jurisdictional determinations.
B. Discussion of Specific Comments
(1) Type of Actions Reviewed and Extent of Review
A number of comments were received requesting that the appeal
process be expanded to include the assertion of discretionary
authority, issuance of cease and desist orders, special conditions,
denial without prejudice of a permit application, and delays in the
evaluation of a permit application.
While we recognize the desire of various individuals and interest
groups to expand the scope of the administrative appeal process to
cover all regulatory decisions that may impact their respective
interests, we have determined that there are several reasons why it
would not currently be prudent to do so. First, some of the decisions
that were suggested should be appealable are preliminary in nature. As
a result, there often is not an adequate administrative record upon
which to base a meaningful review. For example, the assertion of
discretionary authority to require an individual permit for an activity
is often based upon preliminary
[[Page 11709]]
indications that the potential adverse effects of a particular project
on the environment, or other aspects of the public interest, may be
more than minimal. In such cases, the individual permit process is
needed to investigate the probable effect of the project on the public
interest before making a final permit decision. In addition, the
assertion of discretionary authority only addresses the form of
authorization that is being considered, and not whether the proposed
activity will be authorized. Second, we have limited resources to
implement an administrative appeal process, and we could easily find
ourselves to be overwhelmed by the demand for administrative review of
a broad range of regulatory decisions. Given our FY 1998 appropriation
from Congress, sufficient funds are available to implement properly an
administrative appeal process for denied permits, and declined
individual permits only. Third, we do not wish to encourage permit
applicants to enter into a formal administrative appeal process without
first utilizing the informal review process already available in Corps
district offices. The informal district review process, generally based
on additional information or a new interpretation of existing
information, is the most timely and efficient means to resolve many
issues, such as jurisdictional questions. Accordingly, at this time, we
are limiting the administrative appeal process to denied permits, and
to proffered individual permits that have been declined by the
applicant.
Several of the comments received indicated that some parties
believed that the appeal process would allow an applicant to appeal the
terms and conditions of an individual permit, and begin work in
jurisdictional areas, while the appeal was under way. This
interpretation of the appeal process is incorrect. Permit conditions
are an integral part of a permit, and cannot be treated as independent
actions. No regulated activity would be allowed to begin in any
jurisdictional waters of the United States until the applicant has
accepted all the terms and conditions of the proffered permit. In cases
where an individual permit has been accepted by the applicant, and the
terms and conditions of such permit are subsequently unilaterally
modified by the district engineer pursuant to 33 CFR 325.7, the permit
may be declined by the permittee and appealed under this process, as
long as no regulated activities have taken place in waters of the
United States on the project site. Permit conditions are designed to
ensure that the authorized project will be constructed, operated and
maintained in such way that it would not cause significant degradation
of the aquatic environment, or be contrary to the public interest; or
to ensure compliance with legal requirements, such as Section 401 State
water quality certification conditions, and the Endangered Species Act.
In the case where an applicant declines a proffered individual permit
because the applicant objects to the terms and conditions of the
permit, the appeal process would proceed as follows. Should the
applicant object to the terms and conditions of the individual permit,
the applicant must write a letter to the district engineer explaining
his objections to the permit. The district engineer, upon evaluation of
the applicant's objections, may: (a) modify the permit to address all
of the applicant's objections, or (b) modify the permit to address
some, but not all, of the applicant's objections, or (c) not modify the
permit, having determined that the permit should be issued as
previously written. In the event that the district engineer agrees to
modify the proffered individual permit to address all of the
applicant's objections, the district engineer will issue such a
modified permit. Should the district engineer modify the proffered
permit to address some, but not all, of the applicant's objections, the
district engineer will send the applicant such a modified permit and
the decision document for the project. If the district engineer does
not modify the proffered permit, the district engineer will offer the
unmodified permit to the applicant a second time. In all cases, the
second transmittal of the permit shall include a notification of appeal
(NAP) form and a request for appeal (RFA) form (see definitions in 33
CFR 331.2). If the applicant subsequently declines any modified or
unmodified permit, this declined permit may be appealed to the division
engineer upon submittal of a completed RFA form. The completed RFA must
be received by the division engineer within 60 days of the NAP.
There were several comments concerning the scope of the review
process. Several commenters recommended that the review officer (RO)
consider new information, conducting, in effect, a new and independent
review. Other commenters indicated that new information should be
accepted only if it serves to clarify existing issues, and did not
raise new issues that were not considered in the Corps original
evaluation of the permit application. After careful consideration, we
have decided that the review undertaken by the RO would be limited to
the existing administrative record; however, the RO may seek to clarify
the record 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.
Accepting new information about the project during the appeal
process would constitute a fundamental change of the administrative
record. Such new information might well have resulted in a different
permit decision had it been presented to the district engineer during
the original permit evaluation process. It is essential that new
information be accepted only at the district level, so that the
district engineer's decision will reflect an accurate and comprehensive
analysis of the data compiled in the administrative record.
Furthermore, allowing an applicant to withhold potentially critical
information from the district engineer might encourage forum-shopping,
if an applicant were to believe that a more favorable decision might be
obtained from the division engineer than from the district engineer.
(2) The Identity and Authority of the Review Officer (RO)
Comments were received regarding the appropriate person to serve as
the RO, and the extent of the RO's authority. Most comments were
concerned primarily with ensuring that the RO be independent and
impartial, that the process be efficient, and that the RO have the
authority to change the original permit decision. Some commenters also
recommended that the RO be authorized to change unilaterally a district
engineer's permit denial decision.
Suggestions were also received stating that the administrative
appeal process should be conducted outside of the Corps of Engineers,
e.g., by contracting with private consultants, utilizing administrative
law judges, or referring the appeals to another Federal agency. Several
commenters expressed strong 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.
We have given careful consideration to whether the appeal process
should be administered wholly within the Corps, or whether it should be
administered by an independent third party. While the perception of
agency bias is a serious concern, we believe that such perceptions
cannot be avoided
[[Page 11710]]
absolutely, and that the negative connotations are far outweighed by
having the appeal process managed by people who have the most
experience with the Corps of Engineers regulatory program. Moving the
appeal process outside the agency, either to another Federal agency, or
by contracting with the private sector, even if a Corps representative
were part of the process, would severely diminish the consistency and
efficiency of the appeal process, and would raise serious legal
questions. The Corps regulatory program is complex, and it is unlikely
that individuals outside of the agency would have the perspective and
long experience with the program that would be needed to conduct a
thorough, timely review. Also, given the evolving nature of the
policies, laws, regulations and court decisions that have shaped the
Corps regulatory program, non-Corps review officers would have to be
trained and updated on a regular basis in order to stay abreast of the
changes. We believe that it would be difficult to provide this
recurring training to individuals outside of the Corps. Furthermore, it
would be imprudent and inappropriate to transfer the appeal process to
a third party, because the Corps bears the statutory responsibility for
full implementation of the regulatory program. Finally, it is noted
that this rule does not diminish the right of an appellant to seek
redress through the Federal courts if he receives an unfavorable
decision from the Corps upon completion of the administrative appeal
process.
Simplification and lower program costs were also offered as reasons
for transferring the process to the private sector. We are not
convinced that contracting the work would be simpler or less costly
than administering the process internally. Corps involvement in the
appeal process would still be necessary, particularly in the case where
permit denial decisions were remanded to the district engineer for
reconsideration as the result of a successful appeal. Further, contract
management responsibilities would remain with the Corps, and could
constitute a substantial administrative burden.
Efficiency was also cited by several commenters in support of
establishing the appeal process as a single level of review at the
division level. We have examined the issue, and agree that the
operational efficiency of the appeal process would be maximized by a
one-level review of the existing administrative record.
Several commenters expressed the view that the appeal process
should grant authority to the division engineer to unilaterally
overturn the permit decision of the district engineer. Otherwise, it
was argued, the best result an appellant could hope for would be a new,
time-consuming review by the same regulatory project manager who made
the original permit recommendation to the district engineer. One
commenter further stated 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.
We believe that the commenters failed to appreciate the positive
aspects of limiting the review to ensure that the requisite procedural
steps have been followed, that no material facts have been overlooked
or misinterpreted, and that the permit decision is consistent with
established policies and official guidance. If the division engineer
determines that the administrative record is insufficient to support
the decision, or that the decision is inconsistent with a requirement
of law, regulation, an Executive Order, or officially-promulgated Corps
policy or guidance, the division engineer will give specific
instructions to the district engineer regarding corrective actions that
must be taken in reconsidering the permit decision. These instructions
would ensure that the district engineer's subsequent decision would be
based on proper legal, factual, procedural, and policy grounds.
Remanding the decision to the district engineer for corrective action
also affirms the principle that the authority to make permit decisions
rests with the district engineer, who is the person ultimately
responsible for implementation of the regulatory program within his
district. Furthermore, from a workload management perspective, Corps
district staff are better prepared than division personnel to handle
the day-to-day requirements of the permit evaluation process. In
addition, an administrative appeal process that required a full public
interest review would be more time consuming than a review of specific
issues, and would in many cases duplicate work already done at the
district level. Also, if after conducting an appellate review, the
division engineer has reason to believe that the permit application
should not be referred back to the district engineer for a final
decision, the permit application may be elevated in accordance with 33
CFR 325.8(b)(4), and the division engineer will make the permit
decision.
Another commenter suggested modifying the third sentence of Section
331.3(b)(2) to provide the RO more flexibility. It was suggested that
we strike the wording, ``shall not substitute their judgment for that
of the Corps district (when reviewing technical issues) unless the
reviewed decision was clearly erroneous or omitted a material fact,''
and replace it with, ``shall provide a recommendation on the decision
that is supported by clear and convincing evidence.'' We believe that
under the original language, the RO has sufficient flexibility under
the review process; however, we have reworded that section to clarify
the meaning.
A comment was received suggesting more involvement by Corps
headquarters to assure the consistency of appealed decisions and to
facilitate adjustments in policy, as may become necessary. We agree
that there is a need for Corps Headquarters to monitor the appeal
process, especially during the period of initial implementation, but we
believe that routine, case-by-case involvement is neither warranted nor
practical. Corps Headquarters will provide training to the review
officers to ensure understanding of the policy and procedures, and to
ensure consistency of the process. Corps Headquarters will also provide
support on a case by case basis in the evaluation of appealed actions,
if requested by a division engineer.
Permit decisions made by a division engineer or higher authority
may be appealed to an Army official at least one level higher than the
decision-maker. This higher Army official shall make the decision on
the merits of the appeal, and may appoint a qualified individual to act
as a review officer (as defined in Section 331.2 of this Part).
References to the division engineer in this Part shall be understood as
also referring to higher-level Army authority when that authority is
conducting an administrative appeal.
Several commenters suggested that, because of its unique
organizational structure, appeals arising from decisions in the New
England Division (NED) office should be directed to Corps headquarters
rather than the division engineer. The Corps has recently reorganized
the division offices. The former New England Division is now the New
England District, and reports to the North Atlantic Division office.
The former New England Division is consequently like the other Corps
districts, and there is no need to set up a separate appeal process
structure for the New England regional office.
(3) The Identity and Rights of the Appellant
A number of commenters expressed concerns that the proposed
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administrative 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.
In response to the question regarding who may pursue an appeal, the
Corps has decided that, since the appeal process is limited at this
time to the appeal of denied permits, and to the appeal of declined
individual permits, appellants are properly limited to those parties
who have had their permit applications denied, or to those parties
proffered an individual permit by the district engineer. Expanding the
appeal rights to third parties would potentially increase the number of
appealable actions by an order of magnitude or more. This would simply
be unworkable. With regard to the scope of participation by the
appellant, we believe that the procedures outlined in 33 CFR 331.6 and
331.7 adequately describe the scope of participation of appellants and
their agents. We have also added a definition of the term ``agent(s)''
to 33 CFR 331.2. With regard to the need to exhaust the administrative
appeal process before seeking relief in the Federal courts, we believe
that the administrative appeal process would serve to identify and
correct any procedural shortcomings of the original permit evaluation
process, and can lead to a resolution of problems without the added
burden to both parties of an action in the Federal courts. Furthermore,
requiring an appellant to exhaust the administrative appeal process
does not prevent the appellant from seeking relief in the Federal
courts should the appellant not be satisfied with the outcome of the
appeal.
In response to requests for clarification of who may attend site
investigations and appeal conferences to provide support and
representation for the appellant, the rule has been written to allow
the appellant's agent(s), as defined in 33 CFR 331.2, to participate in
the process. The appellant's agent(s) may participate in the appeal
conference and in any site investigations, as outlined in 33 CFR 331.7.
Numerous comments were received regarding third party involvement
in the administrative appeal process. A number of commenters favored
limiting third party involvement to the extent provided for in the
proposed rule. Other commenters requested expansion of third party
involvement. It was evident from several comments that some confusion
exists regarding when third parties may participate in the appeal
process. In order to clarify these issues, additional language has been
added to the rule in 33 CFR 331.7 and 33 CFR 331.10. The supplementary
language is intended to make it clear that there is no third party
involvement in the appeal process itself. However, we have provided for
interested parties to be involved in those cases where the division
engineer has determined that the administrative record supporting a
permit denial is inadequate, and has remanded the decision to the
district engineer for further consideration. In such a case, any party
who commented during the original permit review process will be advised
that the decision is being reconsidered, and that they may submit
supplemental comments. If the noted deficiency in the administrative
record is serious enough to merit issuance of a new public notice,
anyone may submit comments. Under these circumstances, the public
interest review is starting anew, and there is no requirement that
interested parties must have participated in the original permit review
process.
(4) Enforcement-Related Issues
One commenter suggested that under the proposed rule the after-the-
fact (ATF) permit process should more appropriately be titled an after-
the-fact ``enforcement'' process. We believe that the existing language
properly identifies that a permit application is being evaluated
``after-the-fact'' for an activity that has already occurred. It would
be inappropriate to use the term ``after-the-fact enforcement'' since a
permit may be granted as a result of the ATF review process. In certain
cases involving alleged unauthorized activities, the Corps will afford
the responsible party the opportunity to apply for an ATF permit. Once
any initial corrective measures have been completed and the activity
otherwise meets the criteria in 33 CFR 326.3(e), evaluating an ATF
permit application is an appropriate response to an unauthorized
activity. If an ATF permit is issued, such permit will alleviate
adverse effects to the affected water of the United States through
special conditions and/or compensatory mitigation requirements. The ATF
process is one of several administrative remedies available to the
Corps to resolve unauthorized activities.
Several commenters responded to our proposal to amend 33 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 a result of further consideration, we have determined
that it would be appropriate to limit the tolling agreement, and
326.3(e) has been amended by adding subparagraph (v).
This new provision would mandate that any party alleged to have
engaged in an unauthorized activity, who files an ATF permit
application that the Corps processes, has thereby agreed to a tolling
of the Statute of Limitations, and, in addition, must sign an agreement
to that effect. Such tolling agreement would state that, in exchange
for the Corps accepting the ATF permit application and, if appropriate,
considering the appeal of any ATF permit denial or declined individual
permit, the party has agreed that the Statute of Limitations would be
tolled for one year after the final action has been taken on the ATF
permit decision, or any succeeding administrative appeal of an ATF
permit denial has been finalized, whichever is later. The tolling
period would terminate one year after a final decision on (1) the
denial of an ATF permit application; or, (2) an appeal of such a denial
decision, whichever is later. The one year post-decision period is
necessary in the event that the United States determines that it would
be appropriate to file an action in the Federal courts to obtain a
satisfactory remedy for the unauthorized activity.
The tolling agreement would also state that permit applicants will
not raise a Statute of Limitations defense in any subsequent
enforcement action brought by the United States, with respect to the
unauthorized activity for the period of time in which the Statute of
Limitations is tolled. A party will be required to sign a separate
tolling agreement for each individual unauthorized activity.
One commenter asked that the third sentence in Section 331.11 be
revised to read ``* * * unless the Corps receives an ATF permit * * *''
because the commenter felt the Corps could not refuse a permit
application. To the contrary, the Corps may refuse a permit application
when any one of four situations exist as identified in 33 CFR
326.3(e)(1). For this reason, we believe that the current language is
appropriate. Another commenter recommended that an appeal initiated in
response to the Corps actions on unauthorized activities should not be
processed until resolution of the alleged violation. As noted earlier,
although protection of the environment is one of the Corps primary
goals, there are some circumstances where allowing an appeal to proceed
before an enforcement action is
[[Page 11712]]
concluded is appropriate. Accordingly, we are convinced that this
decision must remain subject to the discretion of the district
engineer.
Comments were received questioning the basis of the requirement
that initial corrective measures must be completed before an appeal
could be accepted. One comment stated that this requirement left an
appellant little recourse; a result that appeared to be contrary to the
purpose of these regulations. Another believed that such a requirement
was premature because it presupposes that the appeal lacks merit. We
disagree with both of these arguments. First, interim corrective
measures are those actions which the district engineer believes to be
necessary to prevent serious jeopardy to life, property, or important
public resources. We believe that when such a situation exists, the
district engineer must act promptly to require initial corrective
measures to ensure that any unsafe or hazardous conditions are
corrected. Second, a determination to require a corrective action does
not prejudice an appeal, since it does not pass any judgment on the
merits of the overall project; it is simply intended to eliminate or
reduce unsafe conditions while the appeal is pending. Finally, the
appellant always has the option of seeking relief from the Federal
courts.
The proposed rule, in Section 331.11(b), concerned the calculation
of potential penalties for unauthorized activities. That provision
stated that ``[A]ny penalty imposed, as determined in the appropriate
forum by the appropriate decision-maker, may also include in the
calculation of penalty the time period involving the appeal process.''
This provision elicited comments stating that it was both ambiguous and
potentially unlawful. The Corps takes no position on the legality of
this provision. However, we have omitted this provision for several
reasons. First, this particular provision was somewhat ambiguous in
that it was not clear whether the time period of the appeal process
could be used to increase or decrease the penalties for unauthorized
activities. Second, the Corps realizes that it cannot dictate to a
Federal court that the time period for the appeal process must be
included in determining the penalty for unauthorized activities. A
court must independently weigh the facts of a particular case in order
to determine the appropriate extent of penalties for that case. By
omitting this language, the Corps is not waiving its right to argue
before a court that the time period for the appeal process should be
included in the calculation of the penalty for those unauthorized
activities. This explanation serves as notice to every appellant
regarding ATF permit applications that the time it takes for an appeal
to be resolved by the Corps may be included in the calculation of
penalties for the unauthorized activities.
(5) Suggested Procedural Changes and Clarifications for Specific
Sections
Section 331.3(a): One commenter suggested including ``prompt'' with
``fair, reasonable, and effective'' in describing the administrative
appeal process to emphasize the Corps commitment to timely action on
appeals. We agree that timely resolution of appeals is vital to the
success of this program, as is reflected by the inclusion of time
frames in the rule, and have revised this section to include the word
``prompt'.
Section 331.3(a)(2): One commenter suggested including the phrase
``based on the merits of the appeal'' in the first sentence. We agree
with this suggestion, and have clarified the first sentence of 33 CFR
331.3(a)(2) to reflect this suggestion.
Section 331.4: Several commenters noted that the proposed rule did
not contain a list of items that must be present in the administrative
record that would be the subject of an administrative appeal. Because
the administrative record for individual cases varies with the nature
of each proposal, we do not believe it is necessary to identify items
that could be in the administrative record. Each administrative record
typically contains many common elements, such as a determination of
jurisdiction, the permit application and supplemental information
provided by the applicant, the public notice and mailing list, comments
received in response to the notice, NEPA documentation (e.g.,
environmental assessment) and statement of findings (or a combined
decision document), 404(b)(1) Guidelines evaluation, and related
documents and correspondence.
One commenter suggested that the last three proposed words of
Section 331.4 be deleted. We have reworded the paragraph in order to
clarify that a standard form for submission of a Request For Appeal
(RFA) will be provided to the potential appellant, along with the
Notification of Appeal Process (NAP) standard form.
Section 331.5: This section has been modified to clarify the
criteria for consideration of an appeal. Additionally, the criteria
will be clearly outlined in the RFA form sent to the affected party
with the NAP.
Section 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 conditions of
the permit. We acknowledge that the wording of the preamble and the
proposed rule may not be clear enough. Therefore, the wording of the
final rule has been modified to state clearly that the acceptance of an
individual permit results in the waiver of an applicant's right to
appeal the terms and conditions of the permit. This provision will also
be explained in the notification of applicant options (NAO) form
attached to the proffered individual permit sent to an applicant.
Section 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. We have retained the wording of the proposed rule, because it
allows the 60 day time period to be measured from a clear and
verifiable date, whereas the date of receipt by the applicant would be
difficult to verify.
One commenter suggested that it would be difficult for appellants
to provide their reasons for appealing a permit denial within 60 days
unless the Corps provides a rationale for the permit denial as part of
the denial notification. In response to this request, the district
engineer will provide a copy of the decision document with the NAP
where the permit application has been denied. In response to one
commenter who requested that permit decisions be made available to the
public, permit decisions are currently available to the public under
standard Freedom of Information Act procedures.
Section 331.7(d): Several commenters suggested that the RO should
be required to notify the appellant a minimum number of days prior to
the date of the appeal conference to ensure that the appellant has
sufficient time to schedule and attend the meeting. We agree, and have
incorporated a requirement into the rule that provides that the
appellant be given 15 days notification of the date of the appeal
conference (see 33 CFR 331.7(d)(1)).
One commenter suggested that it be made mandatory that complete
transcripts be prepared for all presentations and discussions occurring
during the appeal conference. We do not agree with that suggestion,
because we believe that the cost of doing so would be burdensome, and
that requiring transcripts would considerably delay the appeal process.
However, we have required that the RO prepare a
[[Page 11713]]
memorandum for the record (MFR) to document the appeal conference (See
331.7(d)(7).) We believe that this process is adequate and not unduly
burdensome or costly.
Section 331.7(e): One commenter 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. The final rule has been revised to allow the RO to
communicate with all parties to the appeal, as well as outside sources.
(See Sections 331.7(d) and 331.3(b)(2).) We anticipate that the RO may
need to question the appellant and the Corps district staff to clarify
the administrative record, and may also need to consult with technical
experts, Corps Headquarters staff, Corps Office of Counsel, or other
ROs, if the appeal raises technical issues, questions of national
policy, interpretation of regulations, or legal or programmatic
concerns.
Section 331.8(b): Several commenters suggested that a specific time
period be included for soliciting comments from agencies and interested
parties following a determination by the division engineer to remand
the permit denial decision to the district engineer for
reconsideration. Some commenters suggested a minimum of 15 days for
opportunity to comment. We have provided additional information on time
frames in this rule (see Section 331.10(b).) We have also clarified
that where the reconsideration by the district engineer may involve
substantial changes in the potential impacts of the project, a new
public notice will be issued in accordance with the provisions of 33
CFR Part 325.
Some commenters suggested that there be an absolute time limit of
30 to 45 days for the district engineer to make a final decision on a
remanded permit denial. We share the desire of the commenters for
timely decisions; however, appealed permit denial cases are likely to
be controversial, and/or may involve difficult issues that will require
further agency coordination and public participation. Since we cannot
anticipate all such issues and circumstances, we have elected not to
establish any deadlines for the reconsideration of decisions remanded
to the district engineer.
Section 331.10: Some commenters recommended that the district
engineer not be required to re-open the public interest review process
on remand of a permit denial decision. Another recommended that the
public interest review process be re-opened for all remanded permit
decisions. Depending on the issues raised in each remanded permit
decision, there may be laws, regulations or other guidance that would
require the re-opening of the public interest review process, including
opportunity for comments from the public and/or Federal and State
agencies. Therefore, we are neither requiring nor prohibiting this
practice, but are retaining the original wording that makes this
determination subject to the discretion of the district engineer.
One commenter suggested that the rule be clarified regarding the
404(q) elevation process. The administrative appeal regulation does not
change any authorities or requirements of Section 404(q) of the Clean
Water Act. Currently the U.S. Army Corps of Engineers has Memoranda of
Agreement, under Section 404(q), with EPA, FWS and NMFS whereby policy
issues and certain permit decisions can be elevated to higher
headquarters for a decision. This regulation does not affect the
Section 404(q) MOA elevation process. Specifically, policy issues can
be raised at any time and the Corps will send Notice of Intent to Issue
letters at the end of the appeal process for any permit decision that
qualifies pursuant to the Section 404(q) MOAs. We have added a
statement to the end of Section 331.10(b) to clarify that nothing in
this rule precludes the agencies' authorities pursuant to Section
404(q) of the Clean Water Act.
(6) General Expressions of Opposition and Support
A number of comments were received related to the estimated costs
of administering the proposed administrative appeal process. One
commenter indicated that our estimated costs were too low. Two
commenters said that our estimated costs were too high. Though the
Corps has not had any experience with such a program, we believe that
our original cost estimates are reasonable. It is probable that, at the
start of the appeal process implementation period, there may be a
greater number of appeals than we anticipate. Consequently, the appeal
process may be slower than desired due to the workload. We anticipate
that as the appeal process matures, appellants will be less inclined to
file appeals in questionable or speculative cases, since there will be
an established record of consistent regional and national decisions,
and ROs will have become increasingly proficient in implementing the
appeal process as they gain experience. We will continually evaluate
the cost and results of our appeal process. This evaluation may result
in future adjustments to ensure that costs of the appeal process are
minimized, and that the consistency, efficiency and timeliness of our
decisions are maximized.
III. Exhaustion of Administrative Remedies
In Darby v. Cisneros, 113 S.Ct. 2539 (1993), the Supreme Court
recently held that persons subject to Federal agency regulation need
not exhaust administrative remedies before filing a lawsuit in Federal
district court, unless a statutory or regulatory provision requires
such exhaustion. In response to Darby v. Cisneros, the Corps is
including section 331.12 in this rule to make it explicit that persons
dissatisfied with permit decisions must avail themselves of the
administrative appeal process established in this rule, and have
received a final Corps decision on the merits of the appeal, prior to
seeking redress in the Federal courts.
IV. Application of Rule to Prior Regulatory Decisions
Affected parties may appeal permit denial decisions and declined
permits where the permit denial or proffered individual permit occurs
after March 9, 1999. Such requests will be accepted for administrative
appeal in accordance with this regulation. Permit denials or proffered
permits that were transmitted in writing to an affected party prior to
the publication date of the final regulation will not be accepted under
the appeal process. Additionally, if large numbers of RFAs are received
under this provision, an RO may delay the initiation of processing an
RFA for up to 6 months after the effective date of these regulations,
if necessary.
One commenter asked whether the availability of an administrative
appeal process would affect in-process litigation, initiated in
response to a permit denied with prejudice after the date of the
publication of the final rule in the Federal Register. That is, would
this rule render the case as not ripe for judicial review. The appeal
of permit denials and declined individual permits will be accepted by
the Corps starting on today's date. Therefore, applicants must use the
appeal process as of today's date and exhaust such administrative
processes before seeking relief in the Federal courts. Furthermore, in
it's discretion, the United States may agree to a suspension of on-
going litigation if the litigant wishes to seek relief through
initiation
[[Page 11714]]
of an administrative appeal, and if the government believes that such a
suspension would be appropriate. The suspension of litigation to pursue
an administrative appeal will not be construed as a waiver of any right
to resume litigation in the event that an administrative remedy
acceptable to the applicant is not achieved.
V. Environmental Documentation
We have determined that this action does not constitute a major
Federal action significantly affecting the quality of the human
environment, because the Corps has prepared appropriate environmental
documentation, including an Environmental Impact Statement (EIS) when
required, for all permit decisions. Therefore, environmental
documentation under the National Environmental Policy Act (NEPA) is not
required for this rule. Moreover, this proposed regulation for
administrative appeals only establishes a one-level review for denied
permits and declined individual permits, as needed to ensure that
applicable regulations, policies, practices, and procedures (including
the preparation of appropriate environmental documentation) have been
appropriately followed.
VI. Executive Order 12291 and the Regulatory Flexibility Act
The Corps does not believe that this final rule meets the
definition of a major rule under Executive Order 12291, and we
therefore do not believe that a regulatory impact analysis is required.
This final rule should reduce the burden on the public by offering an
administrative appeal process for certain Corps decisions, and, in some
instances, should allow the applicant to avoid the more time-consuming
and costly alternative of challenging a Corps permit decision in the
Federal courts.
We also do not believe that this final rule will have a significant
impact on a substantial number of small entities pursuant to Section
605(b) of the Regulatory Flexibility Act of 1980, because this final
rule only creates an optional review of certain decisions through an
administrative appeal process. The final rule should be less time
consuming and less costly to permit applicants who want to appeal a
decision with which they disagree, but currently can only seek to have
the decision reviewed through the Federal courts. Furthermore, since
the administrative appeal would be optional at the applicant's or
landowner's discretion, we have minimized the potential of any
increased regulatory burden on small entities. If an applicant or
landowner chooses to forego an appeal, the net effect of the final rule
would be zero.
Note 1: The term ``he'' and its derivatives used in these
regulations are generic and should be considered as applying to both
male and female.
List of Subjects
33 CFR Part 320
Environmental protection, Intergovernmental relations, Navigation,
Water pollution control, Waterways.
33 CFR Part 326
Investigations, Intergovernmental relations, Law enforcement,
Navigation, Water pollution control, Waterways.
33 CFR Part 331
Administrative appeal, Navigation, Waterways, Environmental
protection, Water pollution control.
Dated: March 3, 1999.
Joseph W. Westphal,
Assistant Secretary of the Army (Civil Works), Department of the Army.
Comments regarding new levels of bureaucracy and the legality of
the proposed rule were adequately addressed in the preamble to the
proposed rule. As noted in the preamble to this final rule, numerous
substantive and procedural changes have been adopted as a result of the
comments received. Accordingly, 33 CFR Parts 320 and 326 are hereby
amended and 33 CFR Part 331 is added as follows:
PART 320--GENERAL REGULATORY POLICIES
1. The authority citations for Part 320 continue to read as
follows:
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C.
1413.
2. Section 320.1(a)(2) is amended by revising the final sentence to
read as set forth below.
Sec. 320.1 Purpose and Scope.
(a) * * *
(2) * * * A district engineer's decision on a permit denial or a
declined individual permit is subject to an administrative appeal by
the affected party in accordance with the procedures and authorities
contained in 33 CFR Part 331. Such administrative appeal must meet the
criteria in 33 CFR 331.5; otherwise, no administrative appeal of that
decision is allowed. The terms ``permit denial'' and ``declined
permit'' are defined at 33 CFR 331.2. There shall be no administrative
appeal of any issued individual permit that an applicant has accepted,
unless the authorized work has not started in waters of the United
States, and that issued permit is subsequently modified by the district
engineer pursuant to 33 CFR 325.7 (see 33 CFR 331.5(b)(1)). An
applicant must exhaust any administrative appeal available pursuant to
33 CFR Part 331 and receive a final Corps decision on his permit
application prior to filing a lawsuit in the Federal courts based on a
permit denial, or the terms and conditions of a declined permit.
PART 326--ENFORCEMENT
1. The authority citations for Part 326 continue to read as
follows:
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C.
1413.
2. Section 326.3(e) is amended by adding a new paragraph (e)(1)(v)
to read as follows:
Sec. 326.3 Unauthorized Activities.
* * * * *
(e) * * *
(1) * * *
(v) No after-the-fact permit application will be accepted unless
and until the applicant has furnished a signed statute of limitations
tolling agreement to the district engineer. A separate statute of
limitations tolling agreement will be prepared for each unauthorized
activity. Any person who applies for an after-the-fact permit, where
the application is accepted and processed by the Corps, thereby agrees
that the statute of limitations regarding any violation associated with
that application is tolled until one year after the final Corps
decision, as defined at 33 CFR 331.10. Moreover, the applicant for an
after-the-fact permit must also memorialize that agreement to toll the
statute of limitations, by signing an agreement to that effect, in
exchange for the Corps acceptance of the after-the-fact permit
application, and/or any administrative appeal. Such agreement will
state that, in exchange for the Corps acceptance of any after-the-fact
permit application and/or any administrative appeal associated with the
unauthorized activity, the responsible party agrees that the statute of
limitations will be tolled until one year after the final Corps
decision on the after-the-fact permit application or, if there is an
administrative appeal, one year after the final Corps decision as
defined at 33 CFR 331.10, whichever date is later.
Part 331 is added to read as follows:
PART 331--ADMINISTRATIVE APPEAL PROCESS
Sec.
331.1 Purpose and policy.
331.2 Definitions.
[[Page 11715]]
331.3 Review officer.
331.4 Notification of appealable actions.
331.5 Criteria.
331.6 Filing an appeal.
331.7 Review procedures.
331.8 Timeframes for final appeal decisions.
331.9 Final appeal decision.
331.10 Final Corps decision.
331.11 Unauthorized activities.
331.12 Exhaustion of administrative remedies.
Appendix A--Administrative Appeal Proces.
Appendix B--Applicant Options with Proffered Individual Permit.
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 1413.
Sec. 331.1 Purpose and policy.
(a) General. The purpose of this Part is to establish policies and
procedures to be used for the administrative appeal of permit
applications denied with prejudice, and for the administrative appeals
of declined individual permits. The appeal process will allow the
affected party to pursue an administrative appeal of certain final
Corps of Engineers decisions with which they disagree. The basis for an
appeal, and the specific policies and procedures of the appeal process,
are described in the following sections. It shall be the policy of the
Corps of Engineers to promote and maintain an administrative appeal
process that is independent, objective, fair, prompt, and efficient.
(b) This administrative appeal process provides only for the appeal
of permit denials or declined individual permits.
(c) Permit decisions made by a division engineer or higher
authority may be appealed to an Army official at least one level higher
than the decision-maker. This higher Army official shall make the
decision on the merits of the appeal, and may appoint a qualified
individual to act as a review officer (as defined in Sec. 331.2 of this
Part). References to the division engineer in this Part shall be
understood as also referring to higher-level Army authority when that
authority is conducting an administrative appeal.
Sec. 331.2 Definitions.
The terms and definitions contained in 33 CFR Parts 320 through 330
are applicable to this regulation. In addition, the following terms are
defined for the purposes of Part 331:
Affected party means a permit applicant who has received a permit
denial, or who has declined a proffered individual permit.
Agent(s) means the affected party's business partner, attorney,
consultant, engineer, planner, or any individual with legal authority
to represent the appellant's interests.
Appealable action means a permit denial, or a declined individual
permit, as these terms are defined below.
Appellant means an affected party who has filed an appeal of a
permit denial or declined individual permit under the criteria and
procedures of these regulations.
Declined permit means a proffered individual permit, including a
letter of permission, that an applicant has refused to accept, because
he has objections to the terms and conditions therein. A declined
permit can also be an individual permit that the applicant originally
accepted, but where such permit was subsequently modified by the
district engineer, pursuant to 33 CFR 325.7, in such a manner that the
resulting permit contains terms and conditions that lead the applicant
to decline the modified permit, provided that the applicant has not
started work in waters of the United States authorized by such permit.
Where an applicant declines a permit (either initial or modified), the
applicant does not have a valid permit to conduct regulated activities
in waters of the United States, and must not begin construction of the
work requiring a Corps permit unless and until the applicant receives
and accepts a valid Corps permit.
Denial determination means a letter from the district engineer
detailing the reasons a permit was denied with prejudice. The decision
document for the project will be attached to the denial determination
in all cases.
Notification of Applicant Options (NAO) means a fact sheet
explaining an applicant's options with a proffered individual permit
under the administrative appeal process.
Notification of Appeal Process (NAP) means a fact sheet that
explains the criteria and procedures of the administrative appeal
process. Every permit denial, and every proffered individual permit
returned to the applicant for reconsideration after review by the
district engineer in accordance with Sec. 331.6(b), will have an NAP
form attached.
Permit denial means a written denial with prejudice (see 33 CFR
320.4(j)) of an individual permit application as defined in 33 CFR
325.5(b).
Request for appeal (RFA) means the affected party's official
request to initiate the appeal process. The RFA must include the name
of the affected party, the Corps file number of the denied or declined
individual permit application, the reason(s) for the appeal, and any
supporting data and information. A grant of right of entry for the
Corps to the project site is a condition of the RFA. A standard RFA
form will be provided to the affected party with the NAP form. The
affected party initiates the administrative appeal process by
completing the RFA and returning it to the appropriate Corps of
Engineers division office.
Review officer (RO) means the Corps official responsible for
assisting the division engineer or higher authority responsible for
rendering the final decision on the merits of an appeal.
Sec. 331.3 Review officer.
(a) Authority. (1) The division engineer has the authority and
responsibility for administering a fair, reasonable, prompt, and
effective administrative appeal process. The division engineer may act
as the review officer (RO), or may delegate, either generically or on a
case-by-case basis, any authority or responsibility described in this
Part as that of the RO. However, the division engineer may not delegate
any authority or responsibility described in this Part as that of the
division engineer. Regardless of any delegation of RO authority or
responsibility, the division engineer retains overall responsibility
for the administrative appeal process.
(2) The RO will assist the division engineer in reaching and
documenting the division engineer's decision on the merits of an
appeal, if the division engineer has delegated this responsibility as
explained above. The division engineer has the authority to make the
final decision on the merits of the appeal. Neither the RO nor the
division engineer has the authority to make a final decision to issue
or deny any particular permit, pursuant to the administrative appeal
process established by this Part. The authority to issue or deny
permits remains with the district engineer. However, the division
engineer may exercise the authority at 33 CFR 325.8(c) to elevate any
permit application, and subsequently to make the final permit decision.
In such a case, any appeal process of the district engineer's initial
decision is terminated. If a particular permit application is elevated
to the division engineer pursuant to 33 CFR 325.8(c), and the division
engineer's decision on the permit application is a permit denial, or
results in a declined permit, that permit denial or declined permit
would be subject to an administrative appeal to the Chief of Engineers.
(3) Qualifications. The RO will be a Corps employee with extensive
knowledge of the Corps regulatory program. Where the permit decision
being appealed was made by the division engineer or higher authority, a
[[Page 11716]]
Corps official at least one level higher than the decision-maker shall
make the decision on the merits of the RFA, and this Corps official
shall appoint a qualified individual as the RO to conduct the appeal
process.
(b) General. (1) Independence. The RO will not perform, or have
been involved with, the preparation, review, or decision-making of the
action being appealed. The RO will be independent and impartial in
reviewing any appeal, and when assisting the division engineer to make
a decision on the merits of the appeal.
(2) Review. The RO will conduct an independent review of the
administrative record to address the reasons for the appeal cited by
the applicant in the RFA. In addition, to the extent that it is
practicable and feasible, the RO will also conduct an independent
review of the administrative record to verify that the record provides
an adequate and reasonable basis supporting the district engineer's
decision, that facts or analysis essential to the district engineer's
decision have not been omitted from the administrative record, and that
all relevant requirements of law, regulations, and officially-
promulgated Corps policy guidance have been satisfied. Should the RO
require expert advice regarding any subject, he may seek such advice
from any employee of the Corps or of another Federal or state agency,
or from any recognized expert, so long as that person had not been
previously involved in the action under review.
Sec. 331.4 Notification of appealable actions.
Affected parties will be notified in writing of a Corps decision on
an appealable action. For permit denials, the notification must include
a copy of the decision document for the permit application, an NAP fact
sheet and an RFA form. For proffered individual permits, when the
initial proffered permit is sent to the applicant, the notification
must include an NAO fact sheet. For declined permits (i.e., proffered
individual permits that the applicant refuses to accept and sends back
to the Corps), the notification must include an NAP fact sheet and an
RFA form. Additionally, an affected party has the right to obtain a
copy of the administrative record.
Sec. 331.5 Criteria.
(a) Criteria for Appeal. (1) Submission of RFA. The appellant must
submit a completed RFA (as defined at Sec. 331.2) to the appropriate
division office in order to appeal a permit denial, or a declined
individual permit. An individual permit that has been signed by the
applicant, and subsequently unilaterally modified by the district
engineer pursuant to 33 CFR 325.7, may be appealed under this process,
provided that the applicant has not started work in waters of the
United States authorized by the permit. The RFA must be received by the
division engineer within 60 days of the date of the NAP.
(2) Reasons for appeal. The reason(s) for requesting an appeal of a
permit denial, or a declined individual permit, must be specifically
stated in the RFA, and must be more than a simple request for appeal
because the affected party did not like the permit decision, or the
permit conditions. Examples of reasons for appeals include, but are not
limited to, the following: a procedural error, an incorrect application
of law, regulation or officially-promulgated policy, omission of
material fact, incorrect application of the Section 404(b)(1)
Guidelines, or use of incorrect data.
(b) Actions not appealable. An action or decision is not subject to
an administrative appeal under these regulations if it falls into one
or more of the following categories:
(1) an individual permit decision (including a letter of permission
or an individual permit with special conditions), where the permit has
been accepted and signed by the permittee. By signing the permit, the
applicant waives all right to appeal the terms and conditions of the
permit, unless the authorized work has not started in waters of the
United States, and that issued permit is subsequently modified by the
district engineer pursuant to 33 CFR 325.7;
(2) any site specific matter that has been the subject of a final
decision of the Federal courts;
(3) a final Corps decision that has resulted from additional
analysis and evaluation, as directed by a final appeal decision;
(4) a permit denial without prejudice or a declined permit, where
the controlling factor cannot be changed by the Corps decision-maker
(e.g., the requirements of a binding statute, regulation, state Section
401 water quality certification, state Coastal Zone Management Act
disapproval, etc. (See 33 CFR 320.4(j));
(5) a permit denial case where the applicant has subsequently
modified the proposed project, because this would constitute an amended
application that would require a new public interest review, rather
than an appeal of the existing record and decision; or
(6) any request for the appeal of a denied permit or a declined
individual permit, where the RFA has not been received by the division
engineer within 60 days of the date of the NAP.
Sec. 331.6 Filing an appeal.
(a) An affected party appealing a permit denial or declined permit
must submit an RFA that is received by the division engineer within 60
days of the date of the NAP. A flow chart of the appeal process is
shown in Appendix A.
(b) In the case where an applicant objects to a proffered
individual permit, the appeal process proceeds as follows. To initiate
the appeal process regarding the terms and conditions of the permit,
the applicant must write a letter to the district engineer explaining
his objections to the permit. The district engineer, upon evaluation of
the applicant's objections, may: modify the permit to address all of
the applicant's objections, or modify the permit to address some, but
not all, of the applicant's objections, or not modify the permit,
having determined that the permit should be issued as previously
written. In the event that the district engineer agrees to modify the
proffered individual permit to address all of the applicant's
objections, the district engineer will issue such modified permit,
enclosing an NAP form as well. Should the district engineer modify the
proffered individual permit to address some, but not all, of the
applicant's objections, the district engineer will send the applicant
such modified permit, an NAP form, and the decision document for the
project. If the district engineer does not modify the proffered
individual permit, the district engineer will offer the unmodified
permit to the applicant a second time, enclosing an NAP form and a copy
of the decision document. If the applicant still has objections, the
applicant may decline such modified or unmodified permit; this declined
individual permit may be appealed to the division engineer upon
submittal of a complete RFA form. The completed RFA must be received by
the division engineer within 60 days of the NAP. A flow chart of an
applicant's options for a proffered individual permit is shown in
Appendix B.
(c) The district engineer may not delegate his signature authority
to deny the permit with prejudice, or to return an individual permit to
the applicant with unresolved objections (see Secs. 331.6 (b)(ii) and
331.6(b)(iii)).
(d) Affected parties may appeal permit denials or declined
individual permits where the permit denial or the proffered individual
permit occurs after March 9, 1999, but may not appeal permit denials or
declined permits where the Corps took that action before March 9, 1999.
All appeals must meet
[[Page 11717]]
the criteria set forth in Sec. 331.5 of this Part.
Sec. 331.7 Review procedures.
(a) General. The administrative appeal process for permit denials
and declined individual permits is a one level appeal, normally to the
division engineer. The appeal process will normally be conducted by the
RO. The RO will document the appeal process, and assist the division
engineer to make a decision on the merits of the appeal. The division
engineer may participate in the appeal process as the division engineer
deems appropriate. The division engineer will make the decision on the
merits of the appeal, and provide any instructions, as appropriate, to
the district engineer.
(b) Requests for the appeal of permit denials or declined
individual permits. Upon receipt of an RFA, the Corps shall review the
RFA and the administrative record to determine whether the request
meets the criteria for appeal. If the RFA meets the criteria for
appeal, the RO will so notify the appellant in writing within 30 days
of the receipt of the RFA. If the RO believes that the RFA does not
meet the criteria for appeal (see Sec. 331.5), the RO will make a
recommendation on the RFA to the division engineer. If the division
engineer determines that the RFA is not acceptable, the division
engineer will notify the appellant of this determination by a certified
letter detailing the reason(s) why the appeal failed to meet the
criteria for appeal. No further administrative appeal is available,
unless the appellant revises the RFA to correct the deficiencies noted
in the division engineer's letter. The revised RFA must be received by
the division engineer within 30 days of the date of the certified
letter refusing the initial RFA. If the Corps determines that the
revised RFA still fails to meet the criteria for appeal, the division
engineer will notify the appellant of this determination by a certified
letter within 30 days of the date of the receipt of the revised RFA,
and will advise the appellant that the matter is not eligible for
appeal. No further RFAs will be accepted after this point.
(c) Site Investigations. Within 30 days of receipt of a complete
RFA, the RO should determine if a site investigation is needed to
clarify the administrative record. The RO should conduct any such site
investigation within 60 days of receipt of a complete RFA. The RO may
also conduct a site investigation at the request of the appellant,
provided the RO has determined that such an investigation would be of
benefit in interpreting the administrative record. The appellant and
the appellant's authorized agent(s) must be provided an opportunity to
participate in any site investigation, and will be given 15 days notice
of any site investigation. The RO will attempt to schedule the site
investigation at the earliest practicable time acceptable to both the
RO and the appellant. The site investigation should be scheduled in
conjunction with the appeal review conference, where practicable. The
RO, the appellant, the appellant's agent(s) and the Corps district
staff are authorized participants at the site investigation. The RO may
also invite any other party the RO has determined to be appropriate,
such as any technical experts consulted by the Corps.
(d) Appeal Conference. Conferences held in accordance with this
rule will be informal, and will be chaired by the RO. The purpose of
the appeal conference is to provide a forum that allows the
participants to discuss freely all relevant issues and material facts
associated with the appeal. An appeal conference will be held for every
appeal of a permit denial or a declined individual permit, unless the
RO and the appellant mutually agree to forego a conference. The
conference will take place within 60 days of receipt of an acceptable
RFA, unless the RO determines that unforeseen or unusual circumstances
require scheduling the conference for a later date. The purpose of the
conference will be to allow the appellant and the Corps district
representatives to discuss supporting data and information on issues
previously identified in the administrative record, and to allow the RO
the opportunity to clarify elements of the administrative record.
Presentations by the appellant and the Corps district representatives
may include interpretation, clarification, or explanation of the legal,
policy, and factual bases for their positions. The conference will be
governed by the following guidelines:
(1) Notification. The RO will set a date, time, and location for
the conference. The RO will notify the appellant and the Corps district
office in writing within 30 days of receipt of the RFA, and not less
than 15 days before the date of the conference.
(2) Facilities. The conference will be held at a location that has
suitable facilities and that is reasonably convenient to the appellant,
preferably in the proximity of the project site. Public facilities
available at no expense are preferred. If a free facility is not
available, the Corps will pay the cost for the facility.
(3) Participants. The RO, the appellant, the appellant's agent(s)
and the Corps district staff are authorized participants in the
conference. The RO may also invite any other party the RO has
determined to be appropriate, such as any technical experts consulted
by the Corps, adjacent property owners or Federal or state agency
personnel to clarify elements of the administrative record. The
division engineer and/or the district engineer may attend the
conference at their discretion. If the appellant or his authorized
agent(s) fail to attend the appeal conference, the appeal process is
terminated, unless the RO excuses the appellant for a justifiable
reason. Furthermore, should the process be terminated in such a manner,
the district engineer's original decision on the appealed action will
be sustained.
(4) The role of the RO. The RO shall be in charge of conducting the
conference. The RO shall open the conference with a summary of the
policies and procedures for conducting the conference. The RO will
conduct a fair and impartial conference, hear and fully consider all
relevant issues and facts, and seek clarification of any issues of the
administrative record, as needed, to allow the division engineer to
make a final determination on the merits of the appeal. The RO will
also be responsible for documenting the appeal conference.
(5) Appellant rights. The appellant, and/or the appellant's
authorized agent(s), will be given a reasonable opportunity to present
the appellant's views regarding the subject permit denial or declined
permit.
(6) Subject matter. The purpose of the appeal conference will be to
discuss the reasons for appeal contained in the RFA. Any material in
the administrative record may be discussed during the conference, but
the discussion should be focused on relevant issues needed to address
the reasons for appeal contained in the RFA. The RO may question the
appellant or the Corps representatives with respect to interpretation
of particular issues in the record, or otherwise to clarify elements of
the administrative record. Issues not identified in the administrative
record by the date of the NAP for the application may not be raised or
discussed, because substantive new information or project modifications
would be treated as a new permit application (see Sec. 331.5(b)(5)).
(7) Documentation of the appeal conference. The appeal conference
is an informal proceeding, intended to provide clarifications and
explanations of the administrative record for the RO and the division
engineer; it is not intended to supplement the administrative record.
Consequently,
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the proceedings of the conference will not be recorded verbatim by the
Corps or any other party attending the conference, and no verbatim
transcripts of the conference will be made. However, after the
conference, the RO will write a memorandum for the record (MFR)
summarizing the presentations made at the conference, and will provide
a copy of that MFR to the division engineer, the appellant, and the
district engineer.
(8) Appellant costs. The appellant will be responsible for his own
expenses for attending the appeal conference.
(e) Basis of decision and communication with the RO. The appeal of
a permit denial or a declined individual permit is limited to the
information contained in administrative record by the date of the NAP
for the application, the proceedings of the appeal conference, and any
relevant information gathered by the RO as described in Sec. 331.5 of
this Part. Neither the appellant nor the Corps may present new
information not already contained in the administrative record, but
both parties may interpret, clarify or explain issues and information
contained in the record.
(f) Applicability of appeal decisions. Because a decision to deny
or condition a permit depends on the facts, circumstances, and physical
conditions particular to the specific project and site being evaluated,
appeal decisions would be of little or no precedential utility.
Therefore, an appeal decision of the division engineer is applicable
only to the instant appeal, and has no other precedential effect. Such
a decision may not be cited in any other administrative appeal, and may
not be used as precedent for the evaluation of any other permit
application. While administrative appeal decisions lack precedential
value and may not be cited by an appellant or a district engineer in
any other appeal proceeding, the Corps goal is to have the Corps
regulatory program operate as consistently as possible, particularly
with respect to interpretations of law, regulation, an Executive Order,
and officially-promulgated policy. Therefore, a copy of each appeal
decision will be forwarded to Corps Headquarters; those decisions will
be periodically reviewed at the headquarters level for consistency with
law, Executive Orders and policy. Additional official guidance will be
issued as necessary to maintain or improve the consistency of the
Corps' appellate and permit decisions.
Sec. 331.8 Timeframes for final appeal decisions.
The Corps will make a final decision on the merits of the appeal at
the earliest practicable time, in accordance with the time limits set
forth below. The administrative appeal process is initiated by the
receipt of an RFA by the division engineer. The Corps will review the
RFA to determine whether the action is appealable. If the division
engineer determines that the action is not appealable, the division
engineer will notify the appellant accordingly within 30 days of the
receipt of the RFA. If the division engineer determines that the action
is appealable and the RFA is complete, the RO will request the
administrative record from the district engineer. The division engineer
will make a final decision on the merits of the appeal within 90 days
of the receipt of the complete RFA.
Sec. 331.9 Final appeal decision.
(a) In accordance with the authorities contained in Sec. 331.3(b),
the division engineer will make a decision on the merits of the appeal.
While reviewing an appeal and reaching a decision on the merits of an
appeal, the division engineer can consult with or seek information from
any person, including the district engineer.
(b) The division engineer will disapprove the entirety of or any
part of the district engineer's decision only if he determines that the
decision on some relevant matter was arbitrary, capricious, an abuse of
discretion, not supported by substantial evidence in the administrative
record, or plainly contrary to a requirement of law, regulation, an
Executive Order, or officially-promulgated Corps policy guidance. The
division engineer will not attempt to substitute his judgment for that
of the district engineer regarding a matter of fact, so long as the
district engineer's determination was supported by substantial evidence
in the administrative record, or regarding any other matter if the
district engineer's determination was reasonable and within the zone of
discretion delegated to the district engineer by Corps regulations. The
division engineer may instruct the district engineer on how to correct
any procedural error that was prejudicial to the appellant (i.e., that
was not a ``harmless'' procedural error), or to reconsider the decision
where any essential part of the district engineer's decision was not
supported by accurate or sufficient information, or analysis, in the
administrative record. The division engineer will document his decision
on the merits of the appeal in writing, and provide a copy of this
decision to the applicant (using certified mail) and the district
engineer.
(c) The final decision of the division engineer on the merits of
the appeal will conclude the administrative appeal process, and this
decision will be filed in the administrative record for the project.
Sec. 331.10 Final Corps decision.
The final Corps decision on a permit application is the initial
decision to issue or deny a permit, unless the permittee submits an
RFA, and the division engineer accepts the RFA, pursuant to this Part.
The final Corps decision on an appealed action is as follows:
(a) If the division engineer determines that the appeal is without
merit, the final Corps decision is the district engineer's letter
advising the applicant that the division engineer has decided that the
appeal is without merit, and confirming the district engineer's initial
permit decision; or
(b) If the division engineer determines that the appeal has merit,
the final Corps decision is the district engineer's decision made
pursuant to the division engineer's remand of the appealed action. The
division engineer will remand the decision to the district engineer
with specific instructions to review the administrative record, and to
further analyze or evaluate specific issues. If the district engineer
determines that the effects of the district engineer's reconsideration
of the administrative record would be narrow in scope and impact, the
district engineer must provide notification only to those parties who
commented or participated in the original review, and would allow 15
days for the submission of supplemental comments. Where the district
engineer determines that the effect of the district engineer's
reconsideration of the administrative record would be substantial in
scope and impact, the district engineer's review process will include
issuance of a new public notice, and/or preparation of a supplemental
environmental analysis and decision document (see 33 CFR 325.7).
Subsequently, the district engineer's decision made pursuant to the
division engineer's remand of the appealed action becomes the final
Corps action. Nothing in this rule precludes the agencies' authorities
pursuant to Section 404(q) of the Clean Water Act.
Sec. 331.11 Unauthorized activities.
Permit denials and declined individual permits associated with
after-the-fact permit applications are appealable actions for the
purposes of these regulations. If the Corps accepts
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an after-the-fact permit application, an administrative appeal of a
permit denial or declined individual permit may be filed and processed
in accordance with these regulations subject to the provisions of
paragraphs (a), (b), and (c) of this section.
(a) Initial Corrective Measures. If the district engineer
determines that initial corrective measures are necessary pursuant to
33 CFR 326.3(d), an RFA for an appealable action will not be accepted
by the Corps, until the initial corrective measures have been completed
to the satisfaction of the district engineer.
(b) Penalties. If an affected party requests, under this Section,
an administrative appeal of an appealable action prior to the
resolution of the unauthorized activity, and the division engineer
determines that the appeal has no merit, the responsible party remains
subject to any civil, criminal, and administrative penalties as
provided by law.
(c) Tolling of Statute of Limitations. Any person who applies for
an after-the-fact permit, where the application is accepted and
processed by the Corps, thereby agrees that the statute of limitations
regarding any violation associated with that application is tolled
until one year after the final Corps decision, as defined at 33 CFR
331.10. Moreover, the applicant for an after-the-fact permit must also
memorialize that agreement to toll the statute of limitations, by
signing an agreement to that effect, in exchange for the Corps
acceptance of the after-the-fact permit application, and/or any
administrative appeal(See 33 CFR 326.3(e)(1)(v).) No after-the-fact
permit application or administrative appeal will be accepted until such
written tolling agreement is furnished to the district engineer.
Sec. 331.12 Exhaustion of administrative remedies.
No affected party may file a legal action in the Federal courts
based on a permit denial or declined individual permit until after a
final Corps decision has been made and the appellant has exhausted all
applicable administrative remedies under this Part. The appellant is
considered to have exhausted all administrative remedies when a final
Corps decision is made in accordance with Sec. 331.10 of this Part.
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[FR Doc. 99-5734 Filed 38-99; 8:45 am]
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