NEIL ABERCROMBIE GOVERNOR OF HAWAI

I Mr. Jared Blumenfeld Regional Administrator, Region

9 STATE OF HAWAII DEPARTMENT
OF HEALTH P .0 .BOX 3378 HONOLULU,

HI 96801-3378 October 16, 2012 U.S. Environmental Protection Agency 75 Hawthorne Street San Francisco, California 94105 Dear Mr. Blumenfeld: Subject: Section 401 Water Quality Certification (WQC) for U.S. Environmental Protection Agency (EPA), Region

9 LOREnA

J. FUDDY, A.C

.S
.W., M
.P .H. D IRECTOR OF HEAlTH In reply, please refer tl: EMOICWB WaC832.FNL.12 Proposed Small Vessel General Permit for Discharges Incidental to the Normal Operation of Vessels Less Than 79 Feet (sVGP) into Waters of the State of Hawaii File No. WQC0832/EPA 2013 sVGP In accordance with the provisions
of the Clean Water Act, as amended (33 U.S.C. §1251 et seq.; the "CWA"); Hawaii Revised Statutes (HRS), Chapters 91, 92 and 342D; Title 40, Code of Federal Regulations (CFR), Part 121; and Hawaii Administrative Rules (HAR), Chapter 11-54; the Department
of Health (DOH) has reviewed your Section 401 wac Application. The DOH bases its Section 401 wac on the evaluation
of the "Proposed Small Vessel General Permit (sVGP) Fact Sheet," "Proposed Small Vessel General Permit (sVGP)"and "Economic Analysis"

in a CD transmitted with the December

8, 2011

I request for a Section 401 wac from Mr. David Smith, Manager of NPDES Permits Office, EPA, Region

9 and Federal Register (FR) "Notice of draft permit issuance and Notice of Public Hearing" (76 FR 76716

- 76725, dated December

8, 2011 ). This conditional Section 401 wac is required for EPA, Region 9, to issue the final sVGP to "owner" or "operator"
of any non-recreational, non-military vessel less than 79 feet in length that is operating

in a capacity as a means of transportation, and is eligible for permit coverage under Part 1.1 of the proposed sVGP
is authorized
to discharge into waters of State of Hawaii subject to the proposed sVGP in accordance with the requirements set forth in the proposed sVGP to be authorized under the provisions
of Section 402 of the CWA (33 U.S.C. 1342) and becomes effective on December 19,2013. The Director of Health (Director) attests that, when all terms, requirements, restrictions, and limitations contained

in the proposed sVGP and this conditional Section 401 wac are fully complied with, there is a reasonable assurance that the discharge activities willMr. Jared Blumenfeld October 16,2012 Page2 WQC832.FNL.12 be conducted

inamannerwhichwillnotviolate the Basic Water Quality Criteria applicable
toall watersandthe Specific Water Quality Criteria applicable
totheclassof State waterswhere the proposed discharges would take place. 1. Coverage ofthis Conditional WQC a.In issuing this conditional Section 401 WQC, the DOH has reliedonthe information contained

inthe sVGP Fact Sheet" andthe proposed sVGP inaCD transmitted withthe December

8, 2011, requestforaSection 401 WQC forthe subject proposed sVGP fromMr. David Smith, Manager of NPDES Permits Office, EPA, Region

9and Federal Register (FR) "Notice of draft permit issuance and Noticeof Public Hearing" (76FR 76716

-76725,dated December

8,2011 ). Conditions, terms, requirements, restrictions, and limitations specified

inthe proposed sVGP constitute the minimal requirements acceptable
tothe DOHin issuing this conditional Section 401 WQC. This conditional Section 401 WQC maybe modified, revoked, orrevoked and reissued should anyfuture modifications/changes

tothe proposed/final sVGP contain any requirement, condition, effluent limitation, orrestriction thatisless stringent than those specified

inthe proposed sVGP

.EPA, Region 9,shall submit the modification(s)/change(s)

tothe DOH for review and concurrence. The Directorwill determine whether the modification(s)/change(s)

tothe condition(s)
ofthis conditional Section 401 WQC is warranted. b. Discharges incidental
tothe normal operation ofavessel arecovered under this conditional Section 401 WQC unless theyarelistedin § 1.5ofthe sVGP. Discharges incidental
tothe normal operation
ofavessel, when operating as ameansof transportation, include, butarenotlimitedto: (1) Anti-foulant hull coating leachate. (2) Bilgewater. (3) Deck runoff. (4) Fishhold effluent. (5) Graywater. (6) Non-contact engine cooling water. (7) Packing gland effluent. (8) Underwater hull husbandry. Forthe purposesof sVGP, notallvessel discharges areconsidered incidental
to normal operation ofavessel (e.g .,industrial discharges).Mr. Jared Blumenfeld October 16, 2012 Page 3 WaC832.FNL.12 c. Vessel discharges not eligible for coverage under this conditional Section 401 wac includes

: (1) Vessel discharges not Incidental
to the normal operation of the vessel. (2) Sewage. (3) Used or Spent Oil. (4) Garbage or Trash. (5) Tetrachloroethylene (Perchloroethylene) Degreasers and other products. (6) Discharges currently or previously covered by another NPDES permit. d. Geographical Area Exclusions: Discharges from a vessel eligible for coverage under the proposed sVGP may submit an individual Application
to the Clean Water Branch (CWB), DOH for review, processing and consideration
for an individual Section 401 wac
if the proposed discharges will enter the following waterbodies: (1) (A) Natural freshwater lakes, saline lakes, and anchialine pools will be maintained

in the natural state through Hawai'i's "no discharge" policy for these waters. Waste discharge into these waters
is prohibited. (see HAR, paragraph 11-54-3 (b) (1))

.[HAR, Paragraph 11-54-5.2] (B) It is the objective of Inland Class
1 waters that these waters remain
in their natural state as nearly as possible with an absolute minimum of pollution from any human-caused source. To the extent possible, the wilderness character of these areas shall be protected. Waste discharge into these waters
is prohibited. Any conduct which results in a demonstrable increase

in levels of point or nonpoint source contamination

in class
1 waters
is prohibited. [HAR, Paragraph 11-54-3(b)(1)] "Waste" means sewage, industrial and agricultural matter, and all other liquid

,gaseous, orsolid substance, including radioactive substance, whether treated or not, which may pollute ortend to pollute the waters of the State. [HRS, §342D-1] (2) Sewage, whether commingled with graywater or not, shall be disposed
at pier side collection or treatment system or outside of estuaries or embayments

.No new treated sewage discharges shall be permitted within estuaries. [HAR, Paragraph 11-54-3(b)(2)]
No new sewage discharges will be permitted within embayments

.[HAR, Paragraph 11-54-3(c)(2)]Mr. Jared Blumenfeld October 16, 2012 Page4

WQC832. FNL.12 (3) No new industrial discharges shall be permitted within estuaries. [HAR, Paragraph
11 54 3(b)(2)] No new industrial discharges shall be permitted within embayments. [HAR, Paragraph
11 54 3(c)(2)] 2. Terms of this conditional Section 401 WQC: a. This conditional Section 401 WQC for discharges eligible for coverage under EPA proposed sVGP as listed Item No

. 1.b, above, shall become effective on December 19, 2013. b. This conditional Section 401 WQC shall expire at 11:59 p.m, December 18, 2017 or until such time as the proposed sVGP is modified, suspended, revoked or reissued or the applicable State Water Quality Standard(s)

is revised or modified whichever

is earliest.

If the applicable State Water Quality Standard(s)

is revised or modified and the discharge activities comply with the revisions or modifications, this conditional Section 401 WQC shall remain valid until 11:59 p.m, December 18, 2017. c. This conditional Section 401 WQC may be modified, revoked, or revoked and reissued when the Director finds
it is in the public interest
in accordance with HRS, Chapters 91, 92, and 342D

. d. This conditional Section 401 WQC coverage for effluent discharges from each covered vessel may be revoked when: (1) New State water quality standards (WQS) are subsequently established before this conditional Section 401 WQC expires and the vessel's effluent discharge activity
is violating or the Director determines that the vessel's discharge activity
is violating the new State WQS. The Director will notify the "owner" or "operator'' of a vessel of the violation

. The "owner" or "operator" of a vessel shall cease the violation within 180 calendar days of the date of the notice.
If the "owner'' or "operator" of a vessel fails within 180 calendar days of the date of the notice to cease the violation, the Director may revoke the vessel's Section 401 WQC coverage; or (2) The Director determines that the vessel's effluent discharge(s) activity
is violating the existing State WQS or any condition specified

in this conditional Section 401 WQC. The Director will notify the "owner" or "operator"
of a vessel of the violation

. The "owner" or "operator''
of a vessel shall cease the violation within seven (7) calendar days of the date

• of the notice.

If the "owner" or "operator"
of a vessel fails within seven (7) calendar days of the date of the notice to cease the violation, the Director may revoke the vessel's Section 401 WQC coverage.Mr. Jared Blumenfeld October 16,2012 Page5 WaC832.FNL.12 These actions shallnot preclude the DOH from taking appropriate enforcement action authorized bylaw. Written notification
bythe Director under this section
is complete upon mailing or sending

afacsimile oranemail transmission
ofthe document oractual receiptof the document bythe "owner" or "operator"
ofthe vessel. e.The "owner" or "operator"
ofavessel shall comply withall conditions and requirements specified

inthe proposed sVGP. All terms, requirements, limitations, and restrictions specified

inthis conditional Section 401WaC shall constitute asPart5ofthe proposed sVGP conditions andshallbe primarily enforced bythe EPA, Region 9, through the compliance
ofthe proposed sVGP. DOH reservesthe righttotake appropriate enforcement action authorized bylaw. 3.Validation
ofthis conditional Section 401wac coverage Vessel "owner" or "operator" must complete the "Permit Authorization and Record of Inspection Form (PARI) available

in Appendix

Aofthe sVGP and retain

it onboard their vessel. Completion
ofthisform provides written certification thatthe vessel "owner" or "operator" hasreadand understood the termsofthe sVGP, including the requirements contained

inthis conditional Section 401WaC as specified

inPart5 ofthe sVGP. PartIVofthePARI Form also provides written certification thatthe vessel "owner" or "operator" has conducted the required quarterly visual inspections foundinPart3ofthis permit. All vessels eligible for coveragewill receive coverage starting onDecember 19, 2013, provided vessel "owner" or "operator" has signed the sVGP PARI Form and maintain a copyonboard the vessel. 4."Owner" or "operator" ofthe vessel eligible for coverageunder sVGP shall conduct the required best management practices foundinPart2ofthe sVGP and comply withthe additional requirements
assetforthinParts3and4ofthe sVGP. 5.EPA Region

9should inform the "owner" or "operator" ofthe vessels eligible for coverageunder sVGP ofthis NPDES permitting requirements. 6.Pursuant
to HAR, §11-54-4(a),
all State watersshallbefree of substances attributable
tothe discharge activities authorized under this conditional Section 401 wacandthe proposed sVGP, including: a.Materials thatwill settletoform objectionable sludgeorbottom deposits. b.Floating debris, oil, grease,scum,orother floating materials.Mr. Jared Blumenfeld October 16, 2012 Page 6 WQC832.FNL.12 c. Substances

in amounts sufficient
to produce taste in the water or detectable off flavor in the flesh of fish, orin amounts sufficient to produce objectionable color, turbidity orother conditions

in the receiving waters. d. High orlow temperatures; biocides; pathogenic organisms; toxic, radioactive, corrosive, or other deleterious substances

at levels orin combinations sufficient to be toxic or harmful to human, animal, plant, or aquatic life, orin amounts sufficient to interfere with any beneficial useof the water. e. Substances
or conditions
or combinations thereof
in concentrations which produce undesirable aquatic life. f. Soil particles resulting from erosion onland involved
in earthwork, such as the construction
of public works; highways; subdivisions; recreational, commercial,
or industrial developments;

orthe cultivation and management of agricultural lands. An electronic copyof HAR, Chapter 11 54 is available at: http://hawaii.gov/health/environmental/water/cleanwater/forms/wqc-index.html

or http :1/gen .doh. hawaii. gov/sites/har/ad mrules/default. aspx. 7. Ballast water discharges from "Qualifying Vessels" shall also comply with the provisions
of HAR, Chapter 13-76. The term "Qualifying Vessels," as defined
in HAR, Section 13-76-12, means all vessels, United States or foreign flagged, carrying ballast water into state marine waters after operating outside the EEZ. The term "EEZ," as defined
in HAR, Section 13-76-12, means the United States exclusive economic zone established
by Presidential Proclamation No. 5030, dated March 10, 1983, which extends from the baseline of the territorial seaof the United States seaward 200 nautical miles, substantially
as defined
in federal law 33 CFR 151.2025, dated July 1, 2005. 8. Discharges from "Commercial Passenger Vessels" shall comply with requirements specified

in HRS, Sections 342D 102, 342D 103, 342D 104, 342D 105 and 342 106 of PART VI of HRS, Chapter 3420 titled "DISCHARGES FROM COMMERCIAL PASSENGER VESSELS."Mr. Jared Blumenfeld October 16, 2012 Page 7

WQC832

.FNL.12 "Commercial passenger vessel," as defined
in HRS, Section 342D-1 01, means
a vessel that carries passengers for hire. The term does not include

a vessel: (1) Authorized
to carry fewer than fifty passengers; (2) That does not provide overnight accommodations
for at least fifty passengers for hire, determined with reference
to the number of lower berths and based onan average of two persons per cabin; or (3) Operated by the United States ora foreign government. 9. There shall be nonet increase
in loadings of pollutant of concerns (POC) attributable to vessel's effluent discharges into water quality-limited segments as listed by the DOH under CWA,

§ 303(d). POC information for each water body is included
in 2008/2010 State of Hawaii Water Quality Monitoring and Assessment Report which canbe located at: http://hawaii.gov/health/environmental/water/cleanwater/integrated/index

.html. 10. Pursuant to HRS, Section 342D-8, the DOH-CWB may conduct routine inspection of vessel covered under this conditional Section 401 WQC, taking color photographs, and to sample any effluent discharges. 11. The discharge incidental to normal operation of commercial vessels and commercial fishing vessels permitted under the authorization

of proposed sVGP shall not interfere with or become injurious to any assigned uses made of (designated uses, as defined
in HAR, Section 11-54-1, and specified

in HAR, Section 11-54-3), or presently
in (existing uses, as defined
in HAR, Section 11-54-1, and specified

in HAR, Subsection 11-54-1.1

), those waters. 12.1t shall constitute

a violation under HRS, Chapter 342D; HAR

,Chapter 11-54; and this WQC
if any discharges resulting from the activities authorized under the EPA sVGP, resulting

in any noncompliance

to terms, requirements, restrictions,
or limitations as specified
in this WQC. The DOH reserves the right to take enforcement actions authorized
by law. The DOH has published

a "Notice of Proposed Section 401 Water Quality Certification" in Honolulu Star-Advertiser, Maui News, Garden Island Newspaper, West Hawaii Today

,and Hawaii Tribune Herald on September 14, 2012 (Doc. No. 12-CW-WQC-06). After consideration

of the expressed views of all interested persons and agencies and pertinent State statutes and rules, the DOH hereby issues this conditional Section 401 WQC to EPA, Region 9, for the proposed sVGP.Mr. Jared Blumenfeld October 16, 2012 Page 8

WQC832

.FNL.12 Should you have any questions, please contact Mr
.Alec Wong, Branch Chief, or have your staff contact Mr. Edward Chen of the Engineering Section, CWB, at (808) 586-4309. Sincerely, **~~** LORETTA

J. FUDDY, A.C.S.W., M.P.H. Director of Health c: Pacific Islands Contact Office (PICO), U.S. EPA, Region

9 U.S. Fish and Wildlife Service U.S. National Marine Fisheries Service CZM Program, Office of Planning, DBEDT Division of Aquatic Resources, DLNR Division of Boating and Ocean Recreation, DLNR Harbors Division, DOT DHO, Hawaii (Hilo) DHO, Hawaii (Kona) DHO, Maui DHO, Kauai EHS, Molokai/Lanai (Route file copy) Mr. David Smith, EPA, Region

9 (via e-mail only] Mr. Eugene Bromley, EPA, Region

9 [via e-mail only)) Ms. Deborah Nagle, EPA, Head Quarter [via e-mail only) Ms. Wendy Wiltse, PI CO, EPA, Region

9 [via e-mail only] Ms

.Caitlyn Stewart, The American Waterways Operators