From: Joan Matthews/R2/USEPA/US

To: jjfergus@gw.dec.state.ny.us, jill.lipoti@dep.state.nj.us,

alicia.barnes@dpnr.gov.vi, ken.jock@srmt-nsn.gov

Cc: Juhi Saxena/DC/USEPA/US@EPA, Caitlin Gregg/DC/USEPA/US@EPA,

Michelle Josilo/R2/USEPA/US@EPA

Date: Friday, June 29, 2012 10:39AM

Subject: EPA Notification of Extension to Provide State/Tribe 401 Certification of

the DRAFT Vessel General Permits

Greetings:

This message is to inform you of EPA's extension of the State certification deadline for

States to certify the draft vessel general permits under section 401 of the Clean Water

Act. The new deadline for providing 401 certification on the draft permits is October 1,

2012.

As you know, 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 permits and fact sheets, requesting that States/Tribes make a written

determination regarding certification under CWA section 401. Under 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. 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

USC 1341(a)(1); 40 CFR 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 CFR 124.53(c)(3). As indicated in our letter, EPA provided

until June 30, 2012 for all States/Tribes to certify the vessel permits because the permits

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

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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 constraints. However, after hearing concerns expressed by

several States, we also understand that many States/Tribes would benefit from more time

to complete or 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 choose to do so. You will be deemed to have waived your right to certify

unless that right is exercised by October 1, 2012.

As a reminder, 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 USC 1341(d); 40 CFR 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

CFR 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 CFR 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 in November 2012. Those final permits will incorporate any

conditions specified in the State’s/Tribe’s certification. 33 USC 1341(d).

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

questions, please contact Ms. Sieglinde Mueller at (212) 637-4133. Thank you for your

assistance and cooperation.

Sincerely,

Joan Leary Matthews

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Deputy Director

Division of Environmental Planning & Protection

USEPA Region 2

290 Broadway, 25th Floor

New York, NY 10007-1866

212-637-3724

as of July 1, 2012

Director

Clean Water Division

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