33 CFR 331.2 - Definitions.

§ 331.2 Definitions.

The terms and definitions contained in 33 CFR Parts 320 through 330 are applicable to this part. In addition, the following terms are defined for the purposes of this part:

Affected party means a permit applicant, landowner, a lease, easement or option holder (i.e., an individual who has an identifiable and substantial legal interest in the property) who has received an approved JD, permit denial, or has declined a proffered individual permit.

Agent(s) means the affected party's business partner, attorney, consultant, engineer, planner, or any individual with legal authority to represent the appellant's interests.

Appealable action means an approved JD, a permit denial, or a declined permit, as these terms are defined in this section.

Appellant means an affected party who has filed an appeal of an approved JD, a permit denial or declined permit under the criteria and procedures of this part.

Approved jurisdictional determination means a Corps document stating the presence or absence of waters of the United States on a parcel or a written statement and map identifying the limits of waters of the United States on a parcel. Approved JDs are clearly designated appealable actions and will include a basis of JD with the document.

Basis of jurisdictional determination is a summary of the indicators that support the Corps approved JD. Indicators supporting the Corps approved JD can include, but are not limited to: indicators of wetland hydrology, hydric soils, and hydrophytic plant communities; indicators of ordinary high water marks, high tide lines, or mean high water marks; indicators of adjacency to navigable or interstate waters; indicators that the wetland or waterbody is of part of a tributary system; or indicators of linkages between isolated water bodies and interstate or foreign commerce.

Declined permit means a proffered individual permit, including a letter of permission, that an applicant has refused to accept, because he has objections to the terms and special conditions therein. A declined permit can also be an individual permit that the applicant originally accepted, but where such permit was subsequently modified by the district engineer, pursuant to 33 CFR 325.7, in such a manner that the resulting permit contains terms and special conditions that lead the applicant to decline the modified permit, provided that the applicant has not started work in waters of the United States authorized by such permit. Where an applicant declines a permit (either initial or modified), the applicant does not have a valid permit to conduct regulated activities in waters of the United States, and must not begin construction of the work requiring a Corps permit unless and until the applicant receives and accepts a valid Corps permit.

Denial determination means a letter from the district engineer detailing the reasons a permit was denied with prejudice. The decision document for the project will be attached to the denial determination in all cases.

Jurisdictional determination (JD) means a written Corps determination that a wetland and/or waterbody is subject to regulatory jurisdiction under Section 404 of the Clean Water Act ( 33 U.S.C. 1344) or a written determination that a waterbody is subject to regulatory jurisdiction under Section 9 or 10 of the Rivers and Harbors Act of 1899 ( 33 U.S.C. 401et seq.). Additionally, the term includes a written reverification of expired JDs and a written reverification of JDs where new information has become available that may affect the previously written determination. For example, such geographic JDs may include, but are not limited to, one or more of the following determinations: the presence or absence of wetlands; the location(s) of the wetland boundary, ordinary high water mark, mean high water mark, and/or high tide line; interstate commerce nexus for isolated waters; and adjacency of wetlands to other waters of the United States. All JDs will be in writing and will be identified as either preliminary or approved. JDs do not include determinations that a particular activity requires a DA permit.

Notification of Appeal Process (NAP) means a fact sheet that explains the criteria and procedures of the administrative appeal process. Every approved JD, permit denial, and every proffered individual permit returned for reconsideration after review by the district engineer in accordance with § 331.6(b) will have an NAP form attached.

Notification of Applicant Options (NAO) means a fact sheet explaining an applicant's options with a proffered individual permit under the administrative appeal process.

Permit denial means a written denial with prejudice (see 33 CFR 320.4(j)) of an individual permit application as defined in 33 CFR 325.5(b).

Preliminary JDs are written indications that there may be waters of the United States on a parcel or indications of the approximate location(s) of waters of the United States on a parcel. Preliminary JDs are advisory in nature and may not be appealed. Preliminary JDs include compliance orders that have an implicit JD, but no approved JD.

Proffered permit means a permit that is sent to an applicant that is in the proper format for the applicant to sign (for a standard permit) or accept (for a letter of permission). The term “initial proffered permit” as used in this part refers to the first time a permit is sent to the applicant. The initial proffered permit is not an appealable action. However, the applicant may object to the terms or conditions of the initial proffered permit and, if so, a second reconsidered permit will be sent to the applicant. The term “proffered permit” as used in this part refers to the second permit that is sent to the applicant. Such proffered permit is an appealable action.

Request for appeal (RFA) means the affected party's official request to initiate the appeal process. The RFA must include the name of the affected party, the Corps file number of the approved JD, denied permit, or declined permit, the reason(s) for the appeal, and any supporting data and information. No new information may be submitted. A grant of right of entry for the Corps to the project site is a condition of the RFA to allow the RO to clarify elements of the record or to conduct field tests or sampling for purposes directly related to the appeal. A standard RFA form will be provided to the affected party with the NAP form. For appeals of decisions related to unauthorized activities a signed tolling agreement, as required by 33 CFR 326.3(e)(1)(v), must be included with the RFA, unless a signed tolling agreement has previously been furnished to the Corps district office. The affected party initiates the administrative appeal process by providing an acceptable RFA to the appropriate Corps of Engineers division office. An acceptable RFA contains all the required information and provides reasons for appeal that meets the criteria identified in § 331.5.

Review officer (RO) means the Corps official responsible for assisting the division engineer or higher authority responsible for rendering the final decision on the merits of an appeal.

Tolling agreement refers to a document signed by any person who appeals an approved JD associated with an unauthorized activity or applies for an after-the-fact (ATF) permit, where the application is accepted and evaluated by the Corps. The agreement states that the affected party agrees to have the statute of limitations regarding any violation associated with that approved JD or application “tolled” or temporarily set aside until one year after the final Corps decision, as defined at § 331.10. No ATF permit application or administrative appeal associated with an unauthorized activity will be accepted until a tolling agreement is furnished to the district engineer.

This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.

This list is taken from the Parallel Table of Authorities and Rules provided by GPO [Government Printing Office].

It is not guaranteed to be accurate or up-to-date, though we do refresh the database weekly. More limitations on accuracy are described at the GPO site.

United States Code

§ 401 - Construction of bridges, causeways, dams or dikes generally; exemptions

§ 402 - Construction of bridges, etc., over Illinois and Mississippi Canal

§ 403 - Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in

§ 403a - Creation or continuance of obstruction of navigable waters

§ 403b - Lighting at docks and boat launching facilities

§ 404 - Establishment of harbor lines; conditions to grants for extension of piers, etc.

§ 405 - Establishment and modification of harbor lines on Potomac and Anacostia Rivers

§ 406 - Penalty for wrongful construction of bridges, piers, etc.; removal of structures

§ 407 - Deposit of refuse in navigable waters generally

§ 407a - Deposit of debris of mines and stamp works

§ 408 - Taking possession of, use of, or injury to harbor or river improvements

§ 409 - Obstruction of navigable waters by vessels; floating timber; marking and removal of sunken vessels

§ 410 - Exception as to floating loose timber, sack rafts, etc.; violation of regulations; penalty

§ 411 - Penalty for wrongful deposit of refuse; use of or injury to harbor improvements, and obstruction of navigable waters generally

§ 412 - Liability of masters, pilots, etc., and of vessels engaged in violations

§ 413 - Duty of United States attorneys and other Federal officers in enforcement of provisions; arrest of offenders

§ 414 - Removal by Secretary of the Army of sunken water craft generally; liability of owner, lessee, or operator

§ 415 - Summary removal of water craft obstructing navigation; liability of owner, lessee, or operator

§ 416 - Appropriations for removal of sunken water craft

§ 417 - Expenses of investigations by Department of the Army

§ 418 - Provisions for protection of New York Harbor unaffected

§ 419 - Regulation by Secretary governing transportation and dumping of dredgings, refuse, etc., into navigable waters; oyster lands; appropriations

§ 419a - Management practices to extend capacity and useful life of dredged material disposal areas

§ 420 - Piers and cribs on Mississippi and St. Croix Rivers

§ 421 - Deposit of refuse, etc., in Lake Michigan near Chicago

§ 422 - Modification and extension of harbor lines at Chicago

§ 423 - Establishment of pierhead and bulkhead lines in Wilmington Harbor, California

§ 424 - Establishment of pierhead or bulkhead lines in Newport Harbor, California

§ 424a - Modification of harbor lines in Newport Harbor, California

§ 425 - Omitted

§ 426 - Investigations concerning erosion of shores of coastal and lake waters

§ 426-1

§ 426-2

§ 426-3

§ 426a - Additional investigations concerning erosion of shores of coastal and lake waters; payment of costs; “shores” defined

§ 426b - Applicability of existing laws; projects referred to Board of Engineers for Rivers and Harbors

§ 426c - Report by Coastal Engineering Research Center

§ 426d - Payment of expenses

§ 426e - Federal aid in protection of shores

§ 426e-1

§ 426f - Reimbursements

§ 426g - Storm and hurricane restoration and impact minimization program

§ 426g-1

§ 426h - Repealed. Pub. L. 110–114, title II, § 2038(b), Nov. 8, 2007, 121 Stat. 1100

§ 426h-1

§ 426i - Shore damage prevention or mitigation

33 U.S. Code § 426i–1 - Repealed. Pub. L. 113–121, title I, § 1014(c)(2), June 10, 2014, 128 Stat. 1222

§ 426i-2

§ 426j - Repealed. Pub. L. 110–114, title II, § 2037(b)(1), Nov. 8, 2007, 121 Stat. 1096

§ 426k - Five year demonstration program to temporarily increase diversion of water from Lake Michigan at Chicago, Illinois

§ 426l - Protection of Lake Ontario

§ 426m - Collection and removal of drift and debris from publicly maintained commercial boat harbors and adjacent land and water areas

§ 426n - Technical assistance to States and local governments; cost sharing

§ 426o - Great Lakes material disposal

§ 426o-1

§ 426o-2

§ 426p - Corps of Engineers

§ 427 to 430 - Repealed. July 31, 1945, ch. 334, § 5, 59 Stat. 508

§ 1344 - Permits for dredged or fill material

§ 1413 - Dumping permit program for dredged mate­rial

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