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. Carl Merkle, Acting Program Manager 

# DEC 1 5 2011 Department ofNatural Resources Environmental Planning and Rights Protection Confederated Tribes ofthe UmatillaIndian Reservation P.O. Box 638 Pendleton, Oregon 97801

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

DearMr. Merkle:

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 greaterthan 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.
Bymeans ofthis letter and the transmittal ofthe draft general permits and fact sheets on the accompanying CD, we are requesting that the Confederated Tribes ofthe UmatillaIndian Reservation make a written determinationregarding certification under CWA Section 401. Underthe EPA's CWA Section 401 certificationregulations, a State or Tribe is required to waive, grant, or deny certification based onthe 

### draft, not the final "as issued," permit; 40 CFR § 124.53(c)-(e). The EPAmay not issue a permit authorizing discharges into the waters ofyourtribe until the Confederated Tribes ofthe Umatilla Indian Reservation has granted certification under CWA Section401, orhas waived its right to certify; 33 U.S.C. § 1341(a) (1); 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 of mobile point sources, but also because oftheirbroad applicability to the waters ofevery State and Tribe inthe country. Given these considerations, and based on experience withthe 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 exercised byJune 30, 2012.

In orderto 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 onthe VGP scheduled onJanuary 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 later date. In addition, the EPA has also developed an electronic tool that states and tribes can use to communicate and coordinate witheach

### other as they develop their 401 certifications. Informationregarding 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 necessary to 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 youbelieve that any condition(s) more stringent than those contained in the draftpermit is necessary to meetthe 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 whichthat condition(s) is based. Failure to provide such a citation waives your right to certify withrespectto 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 certification must include a statement ofthe extent to which each condition ofthe draftpermit canbe made less stringentwithout violating the requirements ofstate or tribal law, including water quality standards. Failure to provide this statement for any condition waives the right to certify or objectto any less stringent condition which may be established during the EPA permit issuance process; 40 C.F.R. 

### § 124.53(e) (3). Following review ofthe public comments received during the public commentperiod and receipt of your certification or waiver thereof, the EPA plans to issue the general permits as final documents. Those final permits will incorporate any conditions specified in the Confederated Tribes ofthe Umatilla Indian Reservation's certification; 33 U.S.C. 

### § 1341(d).

I would appreciate receiving your certificationby June 30, 2012. Ifyou have any questions, please contact Cindi Godsey at (907) 271-6561 orbyemail at godsey.cindi@epa.gov. Thankyou for your assistance and cooperation.

Enclosure: CD (referenced above)

cc: Ms. Robin Harris, Confederated Tribes ofthe Umatilla Indian Reservation