I • I 

AUG 

S1ATf OF WASt-II NGTON 

DEPARTMENT O F ECOLO GY 

1'0 Box 47600 • 0/; mpi.l, WA 'JUi04·7W IJ • 3fi0-40i·60()1J 

~~ G~ON~I-~ 

Omet Of WA":C:A AND WATEASHeoS 

711 for WoJ.;hin,qtoo RC'I<~y Scrvic(' • Pt.•nom with ,, !>pccch dis.Jbi/ity Cd rl c. .1JI 1177-fi.H -(>.J-11 

August 28,201 2 

Mr. Michael Bussell, Director 

Office of Water and Watersheds 

US EPA Region I 0 

1200 Sixth Avenue, Suite 900 

Seattle, W A 981 01 

RE: Request for final certification of the National Pollutant Discharge Elimination 

System Vessel and Small Vessel General Permits for discharges incidental to 

the normal operation to waters of the U.S. in the state of Washington 

Dear Mr. Bussell: 

On December 15, 2011 , the United States Environmental Protection Agency (EPA) requested 

the Washington State Department of Ecology (Ecology) either grant or deny certification under 

40 CFR § 124.55, or waive its right to certify EPA's draft Vessel General Permit (VGP), and 

EPA's draft Smal1 Vessel General Permit (sVGP) for Discharges Incidental to the Normal 

Operation of vessels to waters ofthe United States located within the state of Washington. 

AUTHORITIES: 

In exercising authority under 33 U.S.C. § 1341, RCW 90.48.120, and RCW 90.48.260, Ecology 

has examined this application pursuant to the following: 

I. Conformance with applicable water quality-based, technology-based, and toxic or 

pretreatment effluent limitations as provided under 33 U .S.C. § 131 1, 1312, 1313, 1316, 

and 131 7 (FWPCA § 301 , 302, 303 ,306, and 307); 

2. Conformance with the state water quality standards contained in Chapter l73-20IA 

WAC and authorized by 33 U.S.C. §1313 and by Chapter 90.48 RCW, and with other 

applicable state laws; and 

3. Conformance with the provision of using all known, available, and reasonable methods to 

prevent and control pollution of state waters as required by RCW 90.48 .010. 

Ecology objects to EPA's request to certify draft permits that have not been revised to reflect 

responses made to public comments. Despite our objections, we are conditionally certifying the 

draft VGPs. 
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I '11 1-;Jic;~lJ3,ussell · f'A"ugust !8, ~012 1 .·-

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t_ '·· ~~ers~r)Qit~PA intends to incorporate state-specific conditions into the VGPs via the 

certification process. EPA has requested Ecology certify the VGP under Section 40l(a)(l) of the 

federal Clean Water Act. However, state certifying agencies, including Ecology, must follow 

state-specific procedures for developing these conditions; and once they are developed, states 

will be responsible for defending any legal challenges to those conditions. We are faced with the 

awkward and tmrcasonable demand from EPA that we base our certification on the draft VGP. 

Contrary to the requirements outlined in the federal Clean Water Act, we have been asked to 

certify the draft VGP rather than the proposed final VGP. By requiring certification of the draft 

permit, Ecology is not provided the opportunity to review and evaluate any changes to the draft 

VGP that EPA makes as a result of public comment. This places the state in the impossible 

position of not knowing exactly what the State is certifying. The suggestion that states include 

all relevant conditions in their certification is not reasonable since it means effectively writing a 

VGP in our state-certification. EPA issued the draft VGPs in November 2011 and plans to issue 

the final permits in November 2012. However, the new permits will not go into effect until the 

existing permits expire in December 2013. This provides ample time for EPA to make the 

necessary permit revisions, as a result of public comment, and provide the final draft permits to 

the states to certify. In addition, we would like to highlight the need to develop effective hullcleaning practices for the control of invasive species. 

Despite our objections, as you have requested, Ecology is conditionally certifying the 

November 30, 2011 draft VGP. Ecology's certification conditions for both permits are identical 

and enclosed with this letter. As stated, Ecology is certifying the terms and conditions 

contained in the draft VGPs. H EPA issues a final VGP that contains any changes from the 

draft VGP, Ecology is denying state-certification of the final VGP pending Ecology review 

of the fmal permit. Ecology's final certification conditions may be appealed by following the 

procedures descri~d on the last page of that document. 

If you have any questions or would like to discuss these matters further, please contact 

Bill Moore at bill. maare461@ccy. wa.gov, or (360) 407-6460; or Randal} Marshall at 

randaH.marshaH46l@ecy.wa.gov, or (360}467- 6445. 

Sincerely, 

K y Susewind P.E., P.G. 

Water Quality Program Manager 

Enclosure 

cc: Bill Moore 

Randall Marshall 

By Certified Mail 7010 0780 0002 3523 6095- RETURN RECEIPT REQUESTED 
WASHINGTON STATE 401 CERTIFICATION CONDITIONS 

fot the Vessel General .Permits 

The Washington State Department of Ecology (Ecology) certifies that the activity as proposed 

and conditioned will be conducted in a manner that will meet the applicable water quality 

standards and other appropriate requirements of state law. In view of the foregoing and in 

accordance with 33 U.S.C. § 1341, RCW 90.48.120, RCW 90.48.260, Chapter 173-200 WAC, 

and Chapter 173-201A WAC, water quality certification is granted to EPA for the draft Vessel 

General Permit (VGP) and the draft Small Vessel General Permit (sVGP) as reviewed and 

conditioned by the state of Washington. Until the final permit has been reviewed and approved 

by the state, water quality certification does not extend to the final VGP and sVGP if they have 

been changed in any way from the draft permits. 

Certification of this proposal does not authorize the Applicant to exceed applicable state water 

quality standards (Chapter 173-20IA WAC), ground water standards (Chapter 173-200 WAC) or 

sediment quroh.)l standards (Chapter 173-1{}4 WAC). Furtherm{)fe, nothing in this certification 

shall absolve the Applicant from liability for contamination and any subsequent cleanup of 

surface waters, ground waters, or sediments occurring as a result of vessel operations. 

A. Conditions Related to Washington State Geography 

1. The conditions and requirements of the Vessel General Permit (V GP) and the Small 

Vessel General Permit (sVGP) shall extend to all surface waters of the state. 

(Authority - Article XXIV ofthe Washington State Constitu tion and 43 USC § 1312.) 

2. Many ofthe instructions in the VGP and the sVGP involve using onshore disposal if 

available. Proper interpretation of these instructions requires knowledge on pumpout 

facility locations. Ecology's VGP/sVGP webpage contains links to information 

showing where pumpout fac.iJities are available and providing guidance on other 

vessel-related environmental issues. 

B. Conditions Related to State Law 

1. Except for frrefighting foam discharged during an emergency, maintenance, or 

training, discharges to state waters are prohibited which would cause a sheen, film, 

sludge. foam, turbidity, color, or odor. (authority RCW 90.48.020, RCW 90.48.080, 

and WAC 173-201A-260(2)(b)) 

2. Based upon experience in Washington State with vessel discharges violating RCW 

90.48.080 and requirements that the Department of Ecology has routinely imposed 

since before issuance of the original VGP or sVGP, the discharge offish hold effluent 

while at a dock, pier, or mooring is prohibited. · 

3. The release to state waters of a harmful animal or plant species meets the state's 

definition of pollution in RCW 90.48.020 and would be a violation ofRCW 

90.48.080, WAC 173-201A-260(2)(a), and the sVGP. sVGP Part 2.6(f) requires 

vessel operators to periodically inspect and clean vessel hulls if necessary to prevent 

the spread or dispersal of invasive species. sVGP Part 2.6(g) requires vessel 

operators to minimize the transport of visible living organisms from one waterbody 

Washington State 401 Certification Conditions for the Vessel General Permits Page 11 
to another. sVGP Part 3.2 requires quarterly inspection of the visible portions of 

the hull. Regular cleaning of hulls and niche areas is the only routinely available 

nontoxic method for minimizing transport of attached living organisms. 

The release of nonnative aquatic animal species from in-water cleaning of vessel 

hulls, niche areas, and running gear without approval from the Washington 

Department of Fish and Wildlife (WDFW) is forbidden by RCW 77.15.253. The 

state VGP/sVGP webpage described in Condition F. contains contact information and 

instructions for seeking WDFW approval. 

Allowing biofouling to accumulate and mature without hull cleaning can also be 

interpreted as an illegal release. Operators of vessels with hulls which have not been 

cleaned for months or that are involved in extended unmanned periods or other layups should conduct a hull inspection. A hull inspection under these circumstances is 

especially needed before leaving on a voyage to Washington State waters or a voyage 

between COTP zones within the state. In accordance with paragraphs 2.6(f) and 

2.6(g) of the sVGP, vessel operators must periodically conduct hull inspections and 

perform hull cleaning if needed. 

C. Notification Condition 

The following incidents must be reported as soon as possible but no more than 24 hours after 

first becoming aware of their occurrence to the Washington State Department of Health 

(WDOH) at 360-236-3330 or 360-789-8962 (after hours). Information provided should 

include the discharge location (latitude and longitude), discharge volume, discharge type, 

date and time, and duration of discharge. WDOH need not be notified of any incident not 

occtrrring in state waters. (Authority - RCW 69.30.130.) 

• A discharge of graywater in violation of sVGP Part 2.7. 

• Any vessel discharge containing sewage ifthe discharge exceeds the bacterial or 

suspended solids standards in 40 CFR § 140.3(d). 

• Any upset in a disinfection system. 

D. State Inspection Authority 

1. In accordance with RCW 90.48.090, Department of Ecology inspectors shall have 

access to the ship at reasonable times and locations for the purpose of sampling 

discharges covered by the sVGP, interviewing crew members, and inspecting log 

books and other relevant records. 

2. In accordance with WAC 220-150-03 3, WDFW inspectors shall have access at any 

time to any vessel carrying or capable of carrying ballast water in order to provide 

technical assistance, assess compliance, and enforce the requirements of Chapter 220-

150 WAC. 

Washington State 401 Ce,rtification Conditions for the Vessel General .Permits Page 12 
E. Reopener 

The Water Quality Certification may be revoked if information becomes available that the 

sVGP is not protective of state water quality. Certification conditions may be withdrawn, 

added, or modified if necessary to protect water quality or improve implementation and 

enforcement. The Department of Ecology will provide public notice of any proposed 

changes to the certification or conditions. 

F. State VGPI~VGP Webpag~ 

In order to assist the public and shipping industry with sVGP requirements and related 

information, the Department of Ecology maintains a VGP/sVGP webpage at: 

http://www.ecy.wa.gov/programslwg/pcrmitsNGP/index.html. The webpage describes the 

legal history of the vessel permits and provides links to important state and federal 

documents. 1'he webpage has gu}dance fm gtaywater dischatges, ()}\y.. watet sepatat()t 

discharges, and in-water load line painting. Hull cleaning guidance will be developed and 

added. Information will be added on no discharge zones when they are granted. Guidance 

on pumpout facilities will be included. 

G~ Timiug Re.quirc.ments: 

This Certification/Consistency Determination shall remain in effect until December 18, 2017 

or until the State invokes Condition E. to withdraw or modify this Certification. 

YOUR RIGHT TO APPF.AL 

You have a right to appeal this Certification/Consistency Determination to the Pollution Control 

Hearings Board (PCHB) within 30 days of the date of receipt of this Certification/Consistency 

Determination. The appeal process is governed by Chapter 43.21B RCW and Chapter 371 -08 

WAC. "Date of receipt" is defined in RCW 43.2 1B.001(2). 

To appeal you must do all of the following within 30 days of the date of receipt of this 

Certification/Consistency Determination: 

• File your appeal and a copy of this Certification/Consistency Determination with the 

PCHB (see addresses below). Filing means actual receipt by the PCl-IB during regular 

business hours. 

• Serve a copy of your appeal and this Certification/Consistency Determination on Ecology 

in paper form - by mail or in person. (See addresses below.) Email is not accepted. 

You must also comply with other applicable requirements in Chapter 43.21B RCW and 

Chapter 371·08 WAC. 

Washington State 401 Certification Conditions for the Vessel General Permits Page 13 
Street Addresses ' 

Department of Ecology 

Attn: Appeals Processing Desk 

300 Desmond Drive SE 

Lacey, W A 98503 

Pollution Control Hearings Board 

1111 Israel RD SW, Suite 301 

Tumwater, W A 98501 

DATED this 28th day of August, 2012 

usewind, P.E., P.O. 

/} 

I 

I 

W er Quality Program Manager 

Washington State Department of Ecology 

Mailing Addresses , __ 

Department of Ecology 

Attn: Appeals Processing Desk 

PO Box 47608 

Olympia, W A 98504-7608 

Pollution Control Hearings Board 

PO Box 40903 

Olympia, W A 98504-0903 

Washington State 401 Certification Conditions for the Vessel General Permits Page 14