History: 

EPA Notification of Extension to Provide State/Tribe 401 Certification of the 

DRAFT Vessel General Permits 

Jose Font to: PedroNieves 

Cc: RobertoAyala, Sergio Bosques, Juhi Saxena, Caitlin Gregg, Teresita 

Rodriguez, Jose Soto, Jeff Gratz 

This message has been forwarded. 

07/05/2012 05:01 PM 

Jose Font EPA Notification of Extension to Provide Stateffribe 401 Certification of the 

Dear Pedro: 

This message is to inform you of EPA's extension ofthe 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 SmalJ 

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 40 l. 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 134l(a)(l); 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 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 CW A sections 208( e), 301, 302, 

303, 306, and 307, and with appropriate requirements of State law. 33 USC 134l(d); 40 CFR 

124.53(e)(l). 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 Mr. Sergio Bosques at (787) 977-5838. Thank you for your assistance and 

cooperation. 

Sincerely, 

Jose C. Font 

Acting Division Director, R2- CEPD