UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 10 1200 Sixth Avenue, Suite 900 Seattle, WA 98101-3140 OFFICE OF WATERAND WATERSHEDS

CERTIFIED MAIL

- RETURN RECEIPT REQUESTED

Mr. Dave Fuller Water Resources Manager 

# DEC 15 

# 2011 Port Gamble S'Klallam Tribe 31912 Little Boston RoadNE Kingston, Washington 98346

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

Dear Mr. Fuller:

The United States Environmental ProtectionAgency 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 or equal to 79 feet in length and issuing the NPDES Small Vessel General Permit (sVGP) to cover discharges 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 or Tribal lands.
By means ofthis letter andthe transmittal ofthe draft general permits and fact sheets on the accompanying CD, we are requesting that the Port Gamble S'Klallam Tribe make a written determinationregarding certification under CW A Section 40I. Under the EPA's CWA Section401 certification regulations, a State or Tribe is required to waive, grant, or deny certificationbased onthe draft, notthe final "as issued,"permit; 40 CFR § 124.53(c)-(e). The EPA may not issue a permit authorizing discharges into the waters ofyour tribe until the Port Gamble S'Klallam Tribe has granted certificationunder CWA Section 401, or has waived its rightto certify; 33 U.S.c. § 1341(a) (I); 40 C.F.R. § 124.53(a). The EPA regulations allow the state ortribe to have 60 days to certify unless the Regional Administrator finds that unusual circumstances require a longer time; 40 C.F.R. § 24.53(c)(3). The VGP and sVGP are unique because they not only regulate discharges ofmobile point sources, but also because oftheirbroad applicability to the waters ofevery State and Tribe inthe 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 or tribes to certifythe draft permits. You will be deemed to have waived your rightto certify unless that right is exercised by June 30, 2012.

In orderto facilitate discussion during this process, the EPA has arranged for a state and tribal coordination meeting in Chicago, Illinois onthe 24th and 25th ofJanuary 2012. This meeting will immediately follow the public meeting on the VGP scheduled onJanuary 23rd• The EPA welcomes all states and tribes to attend boththe public meeting and the coordination meeting. Cindi Godsey ofmy staffwill be distributing a draft agenda ofthe meeting at a later date. In addition, the EPA has also developed an electronic tool that states and tribes can use to communicate and coordinate with each other as they develop their 401 certifications. Informationregarding this tool will be made available by Cindi Godsey sometime inthe 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 inthe draftpermit is necessary to meet the requirements ofeither the CWA, state, or tribal 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 yourright to certify with respectto that condition(s); 40 C.F.R. § 124.53(e) (2). The EPA requests that you specify whether each condition is applicable to the VGP, sVGP, orboth. In addition, the certificationmust include a statement ofthe extentto which each condition ofthe draft permit canbe made less stringent without violating the requirements ofstate or tribal law, including waterquality standards. Failure to provide this statement for any condition waives the right to certify or objectto any less stringent condition which maybe established during the EPA permit issuance process; 40 C.F.R. § 124.53(e) (3). Followingreview ofthe public commentsreceived during the public commentperiod and receipt of your certification or waiver thereof, the EPAplans to issue the general permits as final documents. Those final permits will incorporate any conditions specified inthe Port Gamble S'Klallam Tribe's certification; 33 U.S.C. § 1341(d).

I would appreciate receiving your certificationby June 30,2012. Ifyouhave any questions, please contact Cindi Godsey at (907) 271-6561 orby email at godsey.cindi@epa.gov. Thank you for your assistance and cooperation. Sincerely,

Michael A. Bussell, Office ofWater & Watersheds

Enclosure: CD (referenced above)