C.F.R. » Title 33 » CHAPTER II—CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF DEFENSE › PART 325—PROCESSING OF DEPARTMENT OF THE ARMY PERMITS

33 C.F.R. § 325.8

Authority to issue or deny permits

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(a) General. Except as otherwise provided in this regulation, the Secretary of the Army, subject to such conditions as he or his authorized representative may from time to time impose, has authorized the Chief of Engineers and his authorized representatives to issue or deny permits for dams or dikes in intrastate waters of the United States pursuant to section 9 of the Rivers and Harbors Act of 1899; for construction or other work in or affecting navigable waters of the United States pursuant to section 10 of the Rivers and Harbors Act of 1899; for the discharge of dredged or fill material into waters of the United States pursuant to section 404 of the Clean Water Act; or for the transportation of dredged material for the purpose of disposing of it into ocean waters pursuant to section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended. The authority to issue or deny permits in interstate navigable waters of the United States pursuant to section 9 of the Rivers and Harbors Act of March 3, 1899 has not been delegated to the Chief of Engineers or his authorized representatives.

(b) District engineer's authority. District engineers are authorized to issue or deny permits in accordance with these regulations pursuant to sections 9 and 10 of the Rivers and Harbors Act of 1899; section 404 of the Clean Water Act; and section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended, in all cases not required to be referred to higher authority (see below). It is essential to the legality of a permit that it contain the name of the district engineer as the issuing officer. However, the permit need not be signed by the district engineer in person but may be signed for and in behalf of him by whomever he designates. In cases where permits are denied for reasons other than navigation or failure to obtain required local, state, or other federal approvals or certifications, the Statement of Findings must conclusively justify a denial decision. District engineers are authorized to deny permits without issuing a public notice or taking other procedural steps where required local, state, or other federal permits for the proposed activity have been denied or where he determines that the activity will clearly interfere with navigation except in all cases required to be referred to higher authority (see below). District engineers are also authorized to add, modify, or delete special conditions in permits in accordance with § 325.4 of this part, except for those conditions which may have been imposed by higher authority, and to modify, suspend and revoke permits according to the procedures of § 325.7 of this part. District engineers will refer the following applications to the division engineer for resolution:

(1) When a referral is required by a written agreement between the head of a Federal agency and the Secretary of the Army;

(2) When the recommended decision is contrary to the written position of the Governor of the state in which the work would be performed;

(3) When there is substantial doubt as to authority, law, regulations, or policies applicable to the proposed activity;

(4) When higher authority requests the application be forwarded for decision; or

(5) When the district engineer is precluded by law or procedures required by law from taking final action on the application (e.g. section 9 of the Rivers and Harbors Act of 1899, or territorial sea baseline changes).

(c) Division engineer's authority. Division engineers will review and evaluate all permit applications referred by district engineers. Division engineers may authorize the issuance or denial of permits pursuant to section 10 of the Rivers and Harbors Act of 1899; section 404 of the Clean Water Act; and section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended; and the inclusion of conditions in accordance with § 325.4 of this part in all cases not required to be referred to the Chief of Engineers. Division engineers will refer the following applications to the Chief of Engineers for resolution:

(1) When a referral is required by a written agreement between the head of a Federal agency and the Secretary of the Army;

(2) When there is substantial doubt as to authority, law, regulations, or policies applicable to the proposed activity;

(3) When higher authority requests the application be forwarded for decision; or

(4) When the division engineer is precluded by law or procedures required by law from taking final action on the application.

Notes of Decisions
Cited in 20 cases, 1982–2014 · leading case: United States v. Louise Mango, Kenneth Austin, Kevin Dominske & Phenix Env't, Inc., 199 F.3d 85 (2d Cir. 1999).
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United States v. Louise Mango, Kenneth Austin, Kevin Dominske & Phenix Env't, Inc., 199 F.3d 85 (2d Cir. 1999). · cites it 3× “” 33 C.F.R. § 325.8 (a), (b). Although permits must contain the name of the district engineer, a lower level employee designated by the district engineer may sign the permit.”
United States v. San Juan Bay Marina, 239 F.3d 400 (1st Cir. 2001). “See 33 C.F.R. § 325.8 (b) (“permit need not be signed by the district engineer in person but may be signed for and in behalf of him by whomever he designates”).”
Nat'l Wildlife Fed'n v. Marsh, 568 F. Supp. 985 (D.D.C. 1983). · cites it 2× “See 33 C.F.R. §§ 325.8 (b); 325.8(d)(2). Following the District Engineer’s recommendation, some 83 additional comments were received into the administrative record.”
Indus. High. Corp. v. Danielson, 796 F. Supp. 121 (D.N.J. 1992). · cites it 3× “The Corps Chief of Engineers and his authorized representatives are authorized to issue permits on behalf of the Secretary of the Army under 33 C.F.R. § 325.8 (a). District engineers are specifically authorized to issue or deny CWA § 404 permits under 33 C.”
United States v. Theodore Angell, 292 F.3d 333 (2d Cir. 2002). “Army Corps regulations define “navigable waters” as “those waters that are subject to the ebb and flow of the tide and/ or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.”
United States v. Edward Lunn Tull, 769 F.2d 182 (4th Cir. 1985). “33 C.F.R. § 325.8 (1984). The Corps evaluates permit applications under guidelines developed by the Environmental Protection Agency in conjunction with the Secretary of the Army.”
City of Alma v. United States, 744 F. Supp. 1546 (S.D. Ga. 1990). “Where the Regional Administrator has notified the District Engineer under paragraph (a)(1) of this section that he is considering exercising section 404(c) authority with respect to a particular disposal site for which a permit application is pending but for which no permit has…”
Deltona Corp. v. Alexander, 682 F.2d 888 (11th Cir. 1982). · cites it 2× “33 C.F.R. § 325.8 (b). If a federal agency objects to the decision of the Division Engineer, the case may be forwarded for review by the Chief of Engineers.”
Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011 (2d Cir. 1983). · cites it 2× “See 33 C.F.R. § 325.8 (1981). 10 Following the *1022 Corps’s April 22, 1977 notice, Fisheries Service, Wildlife Service, and EPA submitted to the Corps district engineer their objections to the issuance of the permit.”
All. to Protect Nantucket Sound, Inc. v. United States Dep't of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003). “for construction or other work in or affecting navigable waters of the United States pursuant to section 10 ..”
United States v. Mango, 997 F. Supp. 264 (N.D.N.Y. 1998). · cites it 2× “2 However, it argues that this fact does not preclude the criminal prosecution of defendants for allegedly violating this permit because the Chief of Engineers and his necessary representatives are authorized to issue such permits on behalf of the Secretary pursuant to…”
Sierra Club v. Marsh, 701 F. Supp. 886 (D. Me. 1988). “See 33 C.F.R. § 325.8 . 10 . The hearing on the motion for a preliminary injunction was originally scheduled for August 18, 1988.”
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