UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10 1200 Sixth Avenue, Suite 900 Seattle, WA 98101-3140 OFFICE OF WATER AND WATERSHEDS

CERTIFIED MAIL

- RETURN RECEIPT REQUESTED

The Honorable Roy Spino Chairman, Water Control Board Confederated Tribes ofWarm Springs 

# DEC 

# 1 5 2011 P.O. BoxC Warm Springs, Oregon 97761

Re: Vessel General Permit (VGP) and Small Vessel General Permit (sVGP) Request for Clean Water Act (CWA) Section 401 Certification

Dear Chairman Spino:

The United States Environmental Protection Agency is inthe process ofreissuing the NPDES Vessel General Permit (VGP) to cover discharges incidental to the normal operation ofcommercial vessels and non-recreational vessels greater than orequal to 79 feet in length and issuing the NPDES Small Vessel General Permit (sVGP) to cover discharges incidental to the normal operation ofvessels less than 79 feet in length. Copies ofthe draft general permits and draft fact sheets are available at http://cfpub.epa.gov/npdes/vessels/vgpermit.cfm

. These draft general permits authorize discharges into the waters ofyour State or Tribal lands. Bymeans ofthis letter and the transmittal ofthe draft general permits and fact sheets onthe accompanying CD, we are requesting that the Confederated Tribes ofWarm Springs make a written determination regarding certificationunder CWA Section 401. Under the EPA's CWA Section401 certification regulations, a State orTribe is required to waive, grant, or deny certificationbased onthe 

### draft, not the final "as issued," permit; 40 CFR § 124.53(c)-(e). The EPA may not issue a permit authorizing discharges into the waters ofyour state until the Confederated Tribes ofWarm Springs has granted certification under CWA Section 401, or has waived its right to certify; 33 U.S.C. § 1341(a) (1); 40 CF.R. § 124.53(a). The EPA regulations allowthe state ortribe to have 60 days to certify unless the Regional Administrator finds that unusual circumstances require a longer time; 40 C.F.R. § 24.53(c)(3). The VGP and sVGP are unique because they not only regulate discharges ofmobile point sources, but also because oftheir broad applicability to the waters ofevery State and Tribe in the country. Given these considerations, and based on experience with the 2008 VGP, the EPA believes that unusual circumstances exist and is providing over six months for states or tribes to certify the draft permits. You will be deemed to have waived your right to certify unless thatright is exercised by June 30, 2012.

In order to facilitate discussion during this process, the EPA has arranged for a state and tribal coordination meeting in Chicago, Illinois on the 24th and 25th ofJanuary 2012. This meeting will immediately follow the public meeting onthe VGP scheduled on January 23rd• The EPA welcomes all states and tribes to attend boththe public meeting and the coordination meeting. Cindi Godsey ofmy staffwill be distributing a draft agenda ofthe meeting at a later date. In addition, the EPA has also developed an electronic tool that states and tribes can use to communicate and coordinate with each other as they develop their 401 certifications. Information regarding this tool will be made available by Cindi Godsey sometime in the near future.The certification shall be in writing and shall include the specific conditions necessaryto assure compliance withthe applicable provisions ofCWA Sections 208(e), 301, 302, 303,306, and 307, and with appropriate requirements ofstate and tribal law; 33 U.S.C. § 1341(d); 40 C.F.R. § 124.53(e) 

### (1). If youbelievethat any condition(s) more stringentthanthose contained inthe draftpermitis necessary to meetthe requirements ofeither the CWA, state, or tribal law, you should include such condition(s), and, in each case, cite the CWA, state, ortribal law reference upon which that condition(s) is based. Failure to provide such a citation waives yourrightto certify withrespect to that condition(s); 40 C.F.R. 

### § 124.53(e) (2). The EPA requests that you specify whether each condition is applicable to the VGP, sVGP, orboth. In addition, the certification mustinclude a statement ofthe extent to which each conditionofthe draftpermitcanbe made less stringent without violating the requirements ofstate or tribal law, including water quality standards. Failure to provide this statement for any condition waives the right to certify or object to any less stringent condition which may be established during the EPA permit issuance process; 40 C.F.R. 

### § 124.53(e) (3). Followingreview ofthe public commentsreceived during the public commentperiod and receipt of your certification or waiver thereof, the EPAplans to issue the general permits as final documents. Those final permits will incorporate any conditions specified inthe Confederated Tribes ofWarm Springs' certification; 33 U.S.C. 

### § 1341(d).

I would appreciate receiving your certification by June 30, 2012. Ifyouhave any questions, please contact Cindi Godsey at (907) 271-6561 orby email at godsey.cindi@epa.gov. Thank youfor your assistance and cooperation.

Enclosure: CD (referenced above)

cc: Mr. Rawlin Richardson, Confederated Tribes ofWarm Springs