From: John Nagle/R1/USEPA/US

To: Juhi Saxena/DC/USEPA/US@EPA, Robin Danesi/DC/USEPA/US@EPA,

Caitlin Gregg/DC/USEPA/US@EPA, Ryan Albert/DC/USEPA/US@EPA

Date: Tuesday, June 26, 2012 05:46PM

Subject: Fw: 401 Certification Extension for VGP and sVGP - Region 1 States

FYI.

----- Forwarded by John Nagle/R1/USEPA/US on 06/26/2012 05:41 PM -----

From: David Webster/R1/USEPA/US

To: harry.stewart@des.nh.gov, "Mullen, Mike" <Mike.Mullen@maine.gov>,

angelo.liberti@dem.ri.gov, David.Ferris@state.ma.us, pete.laflamme@state.vt.us,

"Thompson, Brian" <Brian.Thompson@ct.gov>

Cc: "Andrews, Jeff" <Jeffrey.Andrews@des.nh.gov>, "Parker, Pamela D"

<Pamela.D.Parker@maine.gov>, terry.walsh@dem.ri.gov, "Firmin, Bryant (DEP)"

<bryant.firmin@state.ma.us>, "Borg, Mary" <Mary.Borg@state.vt.us>, "Lambert,

DeAva" <DeAva.Lambert@ct.gov>, John Nagle/R1/USEPA/US@EPA, Thelma

Murphy/R1/USEPA/US@EPA, Oswald.Inglese@ct.gov, Brian.W.Kavanah@maine.gov

Date: 06/26/2012 05:09 PM

Subject: 401 Certification Extension for VGP and sVGP Section

To: harry.stewart@des.nh.gov, "Mullen, Mike" <Mike.Mullen@maine.gov>,

angelo.liberti@dem.ri.gov, David.Ferris@state.ma.us, pete.laflamme@state.vt.us,

"Thompson, Brian" <Brian.Thompson@ct.gov>

From: David M. Webster, Water Permits Branch Chief

cc: "Andrews, Jeff" <Jeffrey.Andrews@des.nh.gov>, "Parker, Pamela D"

<Pamela.D.Parker@maine.gov>, terry.walsh@dem.ri.gov, "Firmin, Bryant (DEP)"

<bryant.firmin@state.ma.us>, "Borg, Mary" <Mary.Borg@state.vt.us>, "Lambert,

DeAva" <DeAva.Lambert@ct.gov>

The United States Environmental Protection Agency (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

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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.

In December 2011, I sent a letter, along with a compact disc of the draft general permits

and fact sheets, requesting that States make a written determination regarding

certification under CWA section 401. Under EPA’s CWA section 401 certification

regulations, a State/Tribe is required to waive, grant, or deny certification based on the

draft, not the final “as issued,” permit. See 40 CFR 124.53(c)-(e). EPA may not issue a

permit authorizing discharges into the waters of your state until a State has granted

certification under CWA section 401, or has waived its right to certify. 33 U.S.C.

1341(a)(1); 40 C.F.R. 124.53(a). EPA regulations allow the State/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). EPA provided until June 30, 2012 for all

States/Tribes to certify the permits because they 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 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 pressure. However, after

hearing concerns expressed by several states, we also understand that many

States/Tribes would benefit from more time to complete/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 so choose. You will be

deemed to have waived your right to certify unless that right is exercised by October 1,

2012.

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 U.S.C. §

1341(d); 40 C.F.R. § 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 C.F.R. §

124.53(e)(2). EPA requests that you specify whether each condition is applicable to the

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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 C.F.R. § 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. Those final permits will incorporate any conditions specified

in the State’s/Tribe’s certification. 33 U.S.C. § 1341(d).

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

questions, please contact John Nagle at (617) 918-1054. Thank you for your assistance

and cooperation.

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