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. JimMedlen 

# DEC 1

# 5 2011 Sustainable Resources Manager, Makah Fisheries Management Makah Tribe ofIndians 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

DearMr. Medlen:
The Vnited States Environmental Protection Agency is in the process ofreissuing the NPDES Vessel General Permit (VGP) to coverdischarges incidental to the normal operation ofcommercial vessels and non-recreational vessels greater than or equal to 79 feet in length and issuing the NPDES Small Vessel General Permit (sVGP) to coverdischarges 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 orTribal lands. Bymeans ofthis letter and the transmittal ofthe draft general permits and fact sheets on the accompanying CD, we are requesting thatthe Makah Tribe ofIndians make a written determination regarding certification under CWA Section 401. 

### Vnder the EPA's CWA Section 401 certification regulations, a State orTribe is required to waive, grant, or deny certificationbased 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 ofyour tribe until the Makah Tribe ofIndians has granted certification under CWA Section 401, orhas 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 ortribe 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 ofmobile point sources, but also because oftheir broad applicabilityto 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 ortribes to certify the draft permits. You will be deemed to have waived your right to certify unless that right is exercised byJune 30, 2012.

In orderto 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 23 rd

. The EPA welcomes all states and tribes to attend both the public meeting and the coordination meeting. Cindi Godsey ofmy staffwill be distributing a draft agenda ofthe meeting at alater 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 their401 certifications. Information regarding this tool will be made available by Cindi Godsey sometime in the near future.The certification shallbe in writing and shall include the specific conditions necessaryto assure compliance with the 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); 40C.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 ofeitherthe 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 your right to certify with respect to that condition(s); 40 c.F.R. § 124.S3(e) (2). The EPA requests that you specify whethereach condition is applicable to the VGP,
sVGP, orboth. In addition, the certification must include a statement ofthe extent to which each condition ofthe draft permit can be made less stringent without violating the requirements ofstate or tribal law, including water quality standards. Failure to provide this statement for anycondition waives the right to certifyorobject to any less stringentcondition which maybe established during the EPA permit issuance process; 40c.F.R. § 124.53(e) (3). Following review ofthe public comments received during the public commentperiod and receipt of your certification or waiverthereof, the EPA plans to issue the general permits as final documents. Those final permits will incorporate any conditions specified in the Makah Tribe ofIndians certification; 33 U.S.c. § 1341(d).

I would appreciate receiving yourcertification by June 30, 2012. Ifyou have any questions, please contact Cindi Godsey at (907) 271-6561 orbyemail at godsey.cindi@epa.gov. Thank you for your assistance and cooperation.


### Sincerely,

Michael A. 

### Bussell, Dire'ft!.. Office ofWater & Watersheds
Enclosure: CD (referenced above)