A. Review Timeframe and "Complete" Applications 



Under Section 401(a)(1) a State will be deemed to have waived certification if it 

 fails to act within "a reasonable period of time (which shaU not exceed one year) after 

 receipt of such request" Program managers should keep in mind that the federal 

 permitting or license agen^ may have regulations of its own which provide a time limit 

 for the State's certification decision. For instance. Corps regulations say that a waiver 

 "will be deemed to occur if the certifying agency £ails or refuses to act on a request for 

 certification within sixty days after receipt . . . unless the district engineer determines a 

 shorter or longer period is reasonable . . . ."^ FERC rules state that a certifying 

 agen^ "is deemed to have waived the certification requirements if ... [it] has not 

 denied or granted certification by one year after the date the certifying agency received 

 the request".'^ EPA regulations for Section 402 in non-authorized States set a limit of 

 60 days unless the Regional Administrator finds that miusual circumstances require a 

 longer time.*' 



States should coordinate closely with the appropriate federal agency on timing 

 issues. For example, Alaska negotiated joint EPA^tate procedures for coastal NPDES 

 permit review, llie agreement takes into account and coordinates EPA, Coastal Zone 

 Management, and 401 certification time frames. 



It is also advisable for the States to adopt rules which reasonably protect against 

 an unintended waiver due, for example, to insuEBcient information to make a 

 certification decision or because project plans have changed enough to warrant a 

 reevaluation of the impacts on water quality. Thus, after taking the federal agencies' 

 regulations into accoimt, the State's 401 certification regulations should link the timing 

 for review to what is considered receipt of a complete application. 



Wisconsin, for instance, requires the applicant to submit a complete application 

 for certification before the official agency review time begins. The State's regulations 

 define the major components of a complete application, including the existing physical 

 environment at the site, the size of the area affected, all enviroimiental impact 

 assessment information provided to the licensing or permitting agency, and the like. 

 The rules State that the agency will review the application for completeness within 30 

 days of its receipt and notify the applicant of any additional materials reasonably 

 necessary for review. Although the application wiU be deemed "complete" for purposes 

 of review time if the agency does not request additional materials within 40 days of 

 receipt of the application, the agency reserves the right to request additional 

 information during the review process.^ 



31 



