Sec. 4. Proposed activities under the nationwide permit
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If a permittee seeks to carry out an activity authorized under the NWP, the permittee shall— notify the Secretary of that proposed activity; and seek approval, in writing, from the Secretary that the proposed activity complies with the NWP. Not later than 14 days after the date on which the Secretary receives a written notification from a permittee under paragraph (1), the Secretary shall notify the permittee whether or not the application of the permittee is complete. If the Secretary determines that an application submitted by a permittee under paragraph
(1)is incomplete, the Secretary shall, not later than 14 days after that determination, provide to the permittee a list of information missing from that application in order for the application to be considered complete. If the Secretary determines that an application submitted by a permittee under paragraph
(1)is complete, the Secretary shall, not later than 30 days after that determination, approve or deny the proposed activity of the permittee. If the Secretary denies the proposed activity of the permittee under subparagraph (A), the Secretary shall, not later than 14 days after that denial, provide to the permittee, in writing— a list of reasons for that determination; and recommendations on how to improve the proposed activity to be in compliance with the NWP. If the Secretary does not comply with a deadline described in paragraph (2), (3), or (4), or fails to respond to an application submitted by a permittee, the proposed activity of the permittee, as described in that application, shall be deemed in compliance with the NWP. In considering mitigation-specific requirements for a proposed activity for which approval is sought under subsection (a)(1), the Secretary, acting through the applicable Division Engineer, shall have the flexibility to determine which mitigation is needed with respect to the proposed activity, on the condition that each mitigation requirement is— technically and economically feasible; and within the jurisdiction of the Secretary, acting through the applicable Division Engineer, to require. If a proposed activity for which approval is sought under subsection (a)(1) includes 1 or more activities that may likely have a significant effect on the quality of the human environment, as determined by the Secretary, the Secretary shall— consider whether mitigating the circumstances or conditions of the proposed activity is sufficient to avoid the significant effects on the quality of the human environment that may result from that circumstance or condition of that proposed activity; and if the Secretary determines under paragraph
(1)that the significant effects that may likely result from the circumstance or condition of the proposed activity can be avoided, mitigate the circumstances or conditions of the proposed activity without— denying the proposed activity; or requiring the permittee to carry out the requirements of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ) for the proposed activity (or any portion of the proposed activity). If the NWP requires a permittee to request a water quality certification from a certifying authority under section 401 of the Federal Water Pollution Control Act ( 33 U.S.C. 1341 ), the certifying authority shall, within a reasonable period of time (which shall not exceed 14 days) after the date on which the permittee submits the certification application pursuant to that section, make a determination on whether or not the application submitted by the permittee is complete. If a certifying authority fails or refuses to make a determination with respect to a certification application submitted pursuant to subparagraph
(A)within the timeframe referred to in that subparagraph, the certification shall be considered to be complete. If a certifying authority determines that an application referred to in paragraph
(1)is incomplete, the certifying authority shall, not later than 14 days after that determination, issue to the permittee a detailed list of items required in order for an application to be considered complete. If a certifying authority determines that an application referred to in paragraph
(1)is complete, the certifying authority shall, notwithstanding section 401(a)(1) of the Federal Water Pollution Control Act ( 33 U.S.C. 1341(a)(1) ), act on the application within a reasonable period of time, which may not exceed 1 year from the date on which the certifying authority determines the application is complete. If a certifying authority determines that an application submitted by a permittee is complete, the certifying agency may not require the permittee to re-file an application for the same proposed activity.
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