Vessel Permit 401 certification time extension, October 1, 2012.

From: Mark 

Smith/R3/USEPA/US Thursday, June 21, 2012 03:10PM

To: Kathleen.Stiller@state.de.us, Kevin.Coyle@state.de.us, eghigearelli@mde.state.md.us, 

collin.burrell@dc.gov, Scott.G.Mandirola@wv.gov, "Davenport, Melanie (DEQ)" 

<Melanie.Davenport@deq.virginia.gov>, "Furlan, Ronald" <rfurlan@state.pa.us>, "Booser, 

John" jbooser@pa.gov

Cc: Evelyn MacKnight/R3/USEPA/US@EPA, Juhi Saxena/DC/USEPA/US@EPA, Caitlin 

Gregg/DC/USEPA/US@EPA

The United States Environmental Protection Agency (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, I 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 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).

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

questions, please contact Mark Smith at 215-814-3105. Thank you for your assistance and 

cooperation.