C.F.R. » Title 33 » CHAPTER II—CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF DEFENSE › PART 331—ADMINISTRATIVE APPEAL PROCESS

33 C.F.R. § 331.9

Final appeal decision

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(a) In accordance with the authorities contained in § 331.3(a), the division engineer will make a decision on the merits of the appeal. While reviewing an appeal and reaching a decision on the merits of an appeal, the division engineer can consult with or seek information from any person, including the district engineer.

(b) The division engineer will disapprove the entirety of or any part of the district engineer's decision only if he determines that the decision on some relevant matter was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence in the administrative record, or plainly contrary to a requirement of law, regulation, an Executive Order, or officially promulgated Corps policy guidance. The division engineer will not attempt to substitute his judgment for that of the district engineer regarding a matter of fact, so long as the district engineer's determination was supported by substantial evidence in the administrative record, or regarding any other matter if the district engineer's determination was reasonable and within the zone of discretion delegated to the district engineer by Corps regulations. The division engineer may instruct the district engineer on how to correct any procedural error that was prejudicial to the appellant (i.e., that was not a “harmless” procedural error), or to reconsider the decision where any essential part of the district engineer's decision was not supported by accurate or sufficient information, or analysis, in the administrative record. The division engineer will document his decision on the merits of the appeal in writing, and provide a copy of this decision to the applicant (using certified mail) and the district engineer.

(c) The final decision of the division engineer on the merits of the appeal will conclude the administrative appeal process, and this decision will be filed in the administrative record for the project.

Notes of Decisions
Cited in 3 cases, 2008–2014 · leading case: Belle Co. v. United States Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014).
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Belle Co. v. United States Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014). · cites it 2× “See 33 C.F.R. § 331.9 . Corps regulations further *390 state that “the public can rely on that determination as a Corps final agency action.”
Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (9th Cir. 2008). “See 33 C.F.R. § 331.9 . 5 At that point, the approved jurisdictional determination is deemed to be “final Corps agency action” and a “final Corps decision” for administrative purposes.”
Kunaknana v. United States Army Corps of Engineers, 23 F. Supp. 3d 1063 (D. Alaska 2014). “7379 (4/2/10 Request for Appeal) (quoting 33 C.F.R. § 331.9 (b)). . A.R. 7379 (4/2/10 Request for Appeal).”
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