From: Claudia Hosch/R6/USEPA/US

To: drown@adeq.state.ar.us, Sanford.Phillips@LA.GOV,

Richard.powell@state.nm.us, Shellie.Chard-McClary@deq.ok.gov,

David.Galindo@tceq.texas.gov

Cc: Caitlin.Gregg@epa.gov, Saxena.Juhi@epa.gov,

Elena.Jigoulina@deq.ok.gov, peter.schaefer@tceq.texas.gov,

Waldmeier.joshua@epa.gov, Jamie.Phillippe@LA.GOV,

SHAFII@adeq.state.ar.us, Mark.Derichsweiler@deq.ok.gov,

Richard.powell@state.nm.us, Brad Crawford/R6/USEPA/US@EPA, Brent

Larsen/R6/USEPA/US@EPA, William Honker/R6/USEPA/US@EPA, Wren

Stenger/R6/USEPA/US@EPA

Date: Friday, June 29, 2012 05:49PM

Subject: CWA 401 Certification Extension for Vessel General Permit until October

1, 2012

 EPA is in the process of reissuing the NPDES Vessel General Permit (VGP) to

authorize 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 authorize 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 would authorize discharges into the waters of your state and tribal

lands.

 In December 2011, Bill Honker sent a letter, along with a compact disc of the draft

general permits and fact sheets, requesting that States/Tribes make a written

determination regarding certification under CWA section 401. Under EPA’s CWA

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. See 40 CFR

124.53(c)-(e). EPA may not issue a permit authorizing discharges into the waters of your

state until a State/Tribe has granted certification under CWA section 401, or has waived

its right to certify. 33 U.S.C. 1341(a)(1); 40 C.F.R. 124.53(a). 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). EPA provided until

June 30, 2012 for all States/Tribes to certify the permits 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. EPA also wanted to allow States/Tribes

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time to coordinate with their neighboring States/Tribes. EPA greatly appreciates the

efforts of States/Tribes who have submitted their 401 certification in advance of the

deadline, and understands that many of you completed your 401 certifications under

time pressure. However, after hearing concerns expressed by several states, we also

understand that many States/Tribes would benefit from more time to complete/reinitiate

their public comment periods, conduct other essential administrative processes, and

finalize their 401 certification conditions for these unique general permits. Therefore,

EPA believes that unusual circumstances continue to exist and is providing until October

1, 2012 for all States/Tribes to certify the draft permits. If you have already submitted a

401 certification, you need not take any additional action unless you so choose. You will

be deemed to have waived your right to certify unless that right is exercised by October

1, 2012.

 The state certification shall be in writing and shall include the specific conditions

necessary to assure compliance with the applicable provisions of CWA sections 208(e),

301, 302, 303, 306, and 307, and with appropriate requirements of State 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 CWA or State law, you should include such condition(s), and, in each case, cite the

CWA or State 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. §

124.53(e)(2). EPA requests that you specify whether each condition is applicable to the

VGP, sVGP, or both. In addition, the state 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 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, EPA plans to issue the general

permits as final documents. Those final permits will incorporate any conditions specified

in the State’s/Tribe’s certification. 33 U.S.C. § 1341(d).

 

 We would appreciate receiving your certification by October 1, 2012. If you have

any questions, please contact Joshua Waldmeier at (214) 665-8064, or by email at

Waldmeier.Joshua@EPA.gov. Thank you for your assistance and cooperation.

Claudia Hosch

Associate Director

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Water Quality Protection Division

EPA Region 6

214 665 6464

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