Oil Spill Requirements.Section 311 of the Act, 33 U.S.C. 1321, prohibits the discharge of oil and hazardous materials in harmful quantities. Discharges authorized under the Beaufort and Chukchi general permits are excluded from the provisions of CWA Section 311, 33 U.S.C. 1321. However, the Beaufort and Chukchi general permits will not preclude the institution of legal action, or relieve the permittees from any responsibilities, liabilities, or penalties for other unauthorized discharges of oil and hazardous materials, which are covered by Section 311.
Endangered Species Act.Section 7 of the Endangered Species Act (ESA), 16 U.S.C. 1531-1544, requires federal agencies to consult with the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) if their actions have the potential to either beneficially or adversely affect any threatened or endangered species, or designated critical habitat. On March 30, 2012 and April 11, 2012, EPA received concurrences from USFWS and NMFS, respectively, that exploration discharges authorized by the general permits are not likely to adversely affect endangered, threatened, and candidate and proposed species and designated critical habitat areas.
Essential Fish Habitat.The Magnuson-Stevens Fishery Conservation and Management Act requires EPA to consult with NMFS when a proposed discharge has the potential to adversely affect an Essential Fish Habitat (EFH). EPA's EFH assessments conclude that the discharges authorized by the Beaufort and Chukchi general permits will not adversely affect EFH or those species regulated under a Federal Fisheries Management Plan.
Coastal Zone Management Act.As of July 1, 2011, there is no longer a Coastal Zone Management Act (CZMA) program in Alaska. Consequently, federal agencies are no longer required to provide the State of Alaska with CZMA consistency determinations.
Paperwork Reduction Act.The information collection requirements of the Beaufort and Chukchi general permits are consistent with the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.
Regulatory Flexibility Act.5 U.S.C. 601 et seq., requires that EPA prepare a regulatory flexibility analysis on rules subject to the requirements of 5 U.S.C. 553(b) that have a significant impact on a substantial number of small entities. However, NPDES general permits are not “rules” and are therefore not subject to the Regulatory Flexibility Act (RFA).
Unfunded Mandates Reform Act.Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, generally requires federal agencies to assess the effects of their “regulatory actions” (defined to be the same as “rules” subject to the RFA) on tribal, state, and local governments and the private sector. However, the Beaufort and Chukchi general permits are not “rules” subject to the RFA, and are therefore not subject to the UMRA.
Appeal of Permit.Any interested person may appeal the Beaufort and Chukchi general permits in the Federal Court of Appeals in accordance with section 509(b)(1) of the Clean Water Act, 33 U.S.C. 1369(b)(1). This appeal must be filed within 120 days of the permit issuance date. Persons affected by the permit may not challenge the conditions of the permit in further EPA proceedings (see 40 CFR 124.19). Instead, they may either challenge the permits in court or apply for an individual NPDES permit.
This action is taken under the authority of Section 402 of the Clean Water Act, 33 U.S.C. 1342. I hereby provide public notice of the final permit action in accordance with 40 CFR 124.15(b).
Dated: October 23, 2012.
Associate Director, Office of Water and Watersheds, Region 10.