The final Corps decision on a permit application is the initial decision to issue or deny a permit, unless the applicant submits an RFA, and the division engineer accepts the RFA, pursuant to this Part. The final Corps decision on an appealed action is as follows:
(a) If the division engineer determines that the appeal is without merit, the final Corps decision is the district engineer's letter advising the applicant that the division engineer has decided that the appeal is without merit, confirming the district engineer's initial decision, and sending the permit denial or the proffered permit for signature to the appellant; or
(b) If the division engineer determines that the appeal has merit, the final Corps decision is the district engineer's decision made pursuant to the division engineer's remand of the appealed action. The division engineer will remand the decision to the district engineer with specific instructions to review the administrative record, and to further analyze or evaluate specific issues. If the district engineer determines that the effects of the district engineer's reconsideration of the administrative record would be narrow in scope and impact, the district engineer must provide notification only to those parties who commented or participated in the original review, and would allow 15 days for the submission of supplemental comments. For permit decisions, where the district engineer determines that the effect of the district engineer's reconsideration of the administrative record would be substantial in scope and impact, the district engineer's review process will include issuance of a new public notice, and/or preparation of a supplemental environmental analysis and decision document (see 33 CFR 325.7). Subsequently, the district engineer's decision made pursuant to the division engineer's remand of the appealed action becomes the final Corps permit decision. Nothing in this part precludes the agencies' authorities pursuant to Section 404(q) of the Clean Water Act.
Notes of Decisions
Hawkes Co. v. United States Army Corps of Engineers, 782 F.3d 994 (8th Cir. 2015).
· cites it 2× “” On December 31, 2012, the Corps nonetheless issued a Revised JD concluding, without additional information, that there is a significant nexus between the property and the Red River of the North, and advising appellants that the Revised JD was a “final Corps permit decision in…”
Belle Co. v. United States Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014).
“See 33 C.F.R. §§ 331.10 , 331.12. Furthermore, as noted above, Belle is not incurring any liability and Belle can bring a challenge in court if the Corps denies a future permit application.”
Sackett v. United States Env't Prot. Agency, 622 F.3d 1139 (9th Cir. 2010).
“See 33 C.F.R § 331.10; 5 U.S.C. § 704 . If the Sacketts were denied a permit and then took an appeal, they could challenge whether their property is subject to the jurisdiction of the CWA.”
Mehaffy v. United States, 98 Fed. Cl. 604 (Fed. Cl. 2011).
· cites it 2× “Critically, the regulations governing administrative appeals codify the ripeness doctrine’s requirement of a final agency decision, precluding federal court jurisdiction over challenges to permit denials until a final administrative appeal decision is made pursuant to 33 C.F.R.…”
Kunaknana v. United States Army Corps of Engineers, 23 F. Supp. 3d 1063 (D. Alaska 2014).
“See 33 C.F.R. § 331.10 (b) ("If [the Corps] determines that [an administrative] appeal has merit, the final Corps decision is the district engineer’s decision made pursuant to the .”
Hawkes Co. v. United States Army Corps of Engineers, 963 F. Supp. 2d 868 (D. Minnesota 2013).
“See 33 C.F.R. §§ 331.10 , 331.12. The Supreme Court held that this was not an adequate remedy for the petitioners in Sackett , because the EPA, a separate agency, had already issued a compliance order.”
New Jersey Transit Corp. v. Eugene E. Mori, 89 A.3d 237 (N.J. Super. Ct. App. Div. 2014).
“The ACOE's decision on a permit application must be appealed pursuant to the administrative procedures set forth in 33 C.F.R. § 331.10 (2014). A final ACOE permit decision is reviewable only in federal court, not state court.”
Bay-Houston Towing Co. v. United States, 58 Fed. Cl. 462 (Fed. Cl. 2003).
“See 33 C.F.R. § 331.10 (2002) ("The final Corps decision on a permit application is the initial decision to issue or deny a permit, unless the applicant submits a [request for appeal ('RFA')], and the division engineer accepts the RFA.”
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