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 

Mr. Jim Medlen DEC 1 5 2011 

Sustainable Resources Manager, Makah Fisheries Management 

Makah Tribe of Indians 

P.O. Box 115 

Neah Bay, Washington 98357 

Re: 	 Vessel General Permit (VGP) and Small Vessel General Permit (sVGP) 

Request for Clean Water Act (CWA) Section 401 Certification 

Dear Mr. Medlen: 

The Vnited States Environmental Protection Agency is in the process of reissuing the NPDES Vessel 

General Permit (VGP) to cover discharges incidental to the normal operation of commercial vessels and 

non-recreational vessels greater than or equal to 79 feet in length and issuing the NPDES Small Vessel 

General Permit (sVGP) to cover discharges incidental to the normal operation of vessels less than 

79 feet in length. Copies of the 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 of your State or Tribal lands. 

By means of this letter and the transmittal of the draft general permits and fact sheets on the 

accompanying CD, we are requesting that the Makah Tribe of Indians make a written determination 

regarding certification under CW A Section 401. V nder the EPA' s CW A Section 401 certification 

regulations, a State or Tribe is required to waive, grant, or deny certification based on the 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 of your tribe until the Makah Tribe of Indians has granted certification under 

CWA Section 401, or has waived its right to certify; 33 V.S.c. § 1341(a) (1); 40 c.F.R. § 124.53(a). The 

EPA regulations allow the state or tribe to have 60 days to certify unless the Regional Administrator 

finds that unusual circumstances require a longer time; 40 c.F.R. § 124.53(c)(3). The VGP and sVGP 

are unique because they not only regulate discharges of mobile point sources, but also because of their 

broad applicability to the waters of every 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 that right 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 of January 2012. This meeting will 

immediately follow the public meeting on the VGP scheduled on January 23rd. The EPA welcomes all 

states and tribes to attend both the public meeting and the coordination meeting. Cindi Godsey of my 

staff will be distributing a draft agenda of the 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 necessary to assure 

compliance with the applicable provisions of CW A Sections 208(e), 301, 302, 303,306, and 307, and 

with appropriate requirements of state and tribal law; 33 U.S.C. § 1341(d); 40 C.F.R. § 124.53(e) (1). If 

you believe that any condition(s) more stringent than those contained in the draft permit is necessary to 

meet the requirements of either the CW A, state, or tribal law, you should include such condition(s), and, 

in each case, cite the CWA, state, or tribal law reference upon which that condition(s) is based. Failure 

to provide such a citation waives your right to certify with respect to that condition(s); 40 c.F.R. 

§ 124.S3(e) (2). The EPA requests that you specify whether each condition is applicable to the VGP, 

s VGP, or both. In addition, the certification must include a statement of the extent to which each 

condition of the draft permit can be made less stringent without violating the requirements of state 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). 

Following review of the public comments received during the public comment period and receipt of 

your certification or waiver thereof, the EPA plans to issue the general permits as final documents. 

Those final permits will incorporate any conditions specified in the Makah Tribe of Indians certification; 

33 U.S.c. § 1341(d). 

I would appreciate receiving your certification by June 30, 2012. If you have any questions, please 

contact Cindi Godsey at (907) 271-6561 or by email at godsey.cindi@epa.gov. Thank you for your 

assistance and cooperation. 

Sincerely, 

Michael A. Bussell, Dire'ft!.. 

Office of Water & Watersheds 

Enclosure: CD (referenced above)