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. Dean Osterman Kalispel Tribe ofIndians 

# DEC 1 5 2011 P.O. Box 39 Usk, Washington 99180

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

DearMr. Osterman:
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 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 ofthisletter and the transmittal ofthe draft general permits and fact sheets on the accompanying CD, we are requesting that the Kalispel Tribe ofIndians make a written determination regarding certification under CWA Section 401. Under the EPA's CWA Section401 certification regulations, a State orTribe is required to waive, grant, or deny certification based on the draft, not the final "as issued," permit; 40 CFR § 124.53(c)-(e). TheEPAmay not issue a permit authorizing discharges into the waters ofyour tribe until the Kalispel Tribe ofIndians has granted certification under CWA Section 401, or has waived its right tocertify; 33 U.S.C

. § 1341(a) (1); 40 C.F.R. § 124.53(a). The 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 C.F.R. § 124.53(c)(3). The VGP and sVGP
are unique because they not only regulate discharges ofmobile point sources, but also because oftheir broad applicability to the waters ofevery State and Tribe in the country. Given these considerations, and based on experience with the 2008 VGP, the EPAbelieves 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 certifyunless 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, lllinois 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 Godseyofmy 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 each other 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 bein 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); 40C.F.R. § 124.53(e) (1). If you believe that any condition(s) more stringentthan those contained in the draft permit 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 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 extentto which each 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 certify or object to any less stiingentcondition which maybe established during the EPA permitissuance process; 40 C.F.R. § 124.53(e) (3). Followingreview ofthe public comments received during the public commentperiod and receipt of your certification or waiverthereof, the EPAplans to issue the general permits as final documents. Those final permits will incorporate any conditions specified in the Kalispel Tribe ofIndians' certification; 33 U.S.c. § 1341(d).

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

# ~P: Michael A. Bussell,

# Directo~ Office ofWater & Watersheds
Enclosure: CD (referenced above)

cc: Mr. Ken Merrill, Kalispel Tribe ofIndians