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. Leroy Deardorff Environmental Program Director 

# DEC 15 

# 2011 Lummi Indian Business Council 2616 Kwina Road Bellingham, Washington 99226

Re: Vessel General Permit (VGP) and Small Vessel General Permit (sVGP) Request for Clean Water Act (CWA) Section 401 Certification

DearMr. Deardorff:

The United States Environmental Protection Agency is in the process ofreissuing the NPDES Vessel General Permit (VGP) to cover discharges incidental to the normal operation ofcommercial vessels and non-recreational vessels greater than orequal 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 that the Lummi Indian Business Council make a written determination regarding certification under CWA Section 401. Under the EPA's CWA Section 401 certificationregulations, a State or Tribe is required to waive, grant, ordeny certificationbased on the draft, not the final "as issued," permit; 40 CFR § 124.53(c)-(e). The EPA maynot issue a permit authorizing discharges into the waters ofyour tribe until the Lummi Indian Business Council has granted certification under CWA Section 401, orhas waived its right to certify; 33 U.S.c. § 1341(a) 0); 40 C.F.R. § 124.53(a). The EPAregulations allow the state ortribe to have 60 days to certify unless the Regional Administratorfinds that unusual circumstances require a longertime; 40C.F.R. § 124.53(c)(3). The VGP and sVGP are unique because they not onlyregulate discharges ofmobile point sources, but also because oftheirbroad applicability to 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 exercisedby 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 ofJanuary 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 ofmy staffwill be distributing a draft agenda ofthe meeting at a laterdate. In addition, the EPA has also developed an electronic tool that states and tribes can use to communicate and coordinate with eachother 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 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); 40 c.F.R. § 124.53(e) (1). If you believe that any condition(s) more stringentthan those contained in the draft permitis necessary to meet the requirements ofeitherthe CWA, state, ortribal 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. § 124.53(e) (2). The EPA requests that you specify whethereach conditionis applicable to the VGP,
sVGP, orboth. In addition, the certification must include a statement ofthe extent to whicheach 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 any condition waives the right to certifyorobjectto any less stringentcondition which may be established during the EPA permitissuance process; 40 c.F.R. § 124.53(e) (3). Following review ofthe public comments received during the public commentperiod and receipt of yourcertification or waiverthereof, the EPA plans to issue the general permits as final documents. Those final permits will incorporate any conditions specified inthe Lummi Indian Business Council's certification; 33 U.S.c. § 1341(d).

I would appreciate receiving your certification by June 30, 2012. Ifyou 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.

## ~

Enclosure: CD (referenced above)

cc: Mr. JeremyFreimund, Lummi Indian Business Council Sincerely.

# ~chael A.

# Bus~/rA Office ofWater & Watersheds