Ocean Disposal; Designation of an Ocean Dredged Material Disposal Site for the Southern Maine, New Hampshire, and Northern Massachusetts Coastal Region
| Published date | 18 September 2019 |
| Citation | 84 FR 49075 |
| Record Number | 2019-20127 |
| Section | Proposed rules |
| Court | Environmental Protection Agency |
Federal Register, Volume 84 Issue 181 (Wednesday, September 18, 2019)
[Federal Register Volume 84, Number 181 (Wednesday, September 18, 2019)]
[Proposed Rules]
[Pages 49075-49087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20127]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[EPA-R01-OW-2019-0521; FRL-9999-61-Region 1]
Ocean Disposal; Designation of an Ocean Dredged Material Disposal
Site for the Southern Maine, New Hampshire, and Northern Massachusetts
Coastal Region
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) today proposes to
designate one ocean dredged material disposal site (ODMDS), the Isles
of Shoals North Disposal Site (IOSN), located approximately 10.8
nautical miles (nmi) east of Portsmouth, New Hampshire, pursuant to the
Marine Protection, Research and Sanctuaries Act, as amended (MPRSA).
This action is necessary to serve the long-term need for an ODMDS for
the possible future disposal of suitable dredged material from harbors
and navigation channels in southern Maine, New Hampshire, and northern
Massachusetts.
The proposed action is described in a Draft Environmental
Assessment and Evaluation Study (DEA) also being released today for
public comment. The DEA recommends designation of the proposed IOSN
pursuant to the MPRSA as the preferred alternative from the range of
options considered. The draft Site Management and Monitoring Plan
(SMMP) is provided as Appendix G of the DEA.
DATES: Written comments must be received on or before October 18, 2019.
ADDRESSES: You may submit your comments, identified by Docket ID No.
EPA-R01-OW-2019-0521, through the Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. The EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
[[Page 49076]]
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, the full EPA public comment policy,
information about CBI or multimedia submissions, and general guidance
on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
Docket: Publicly available docket materials are available either
electronically at regulations.gov or on the EPA Region 1 Ocean Dumping
web page at https://www.epa.gov/ocean-dumping/managing-ocean-dumping-epa-region-1. They are also available in hard copy during normal
business hours at the EPA Region 1 Library, 5 Post Office Square,
Boston, MA 02109.
The supporting document for this site designation is the Draft
Environmental Assessment on the Environmental Assessment and Evaluation
Study for Designation of an Ocean Dredged Material Disposal Site for
the Southern Maine, New Hampshire, and Northern Massachusetts Coastal
Region.
FOR FURTHER INFORMATION CONTACT: Ms. Olga Guza-Pabst, U.S.
Environmental Protection Agency, Region 1, 5 Post Office Square, Suite
100, Mail Code: 06-1, Boston, MA 02109-3912, telephone: (617) 918-1542;
fax: (617) 918-0542; email address: [email protected].
SUPPLEMENTARY INFORMATION: Organization of this document. The following
outline is provided to aid in locating information in this preamble.
I. Background
II. Purpose and Need
III. Potentially Affected Entities
IV. Disposal Site Description
V. Compliance With Statutory and Regulatory Authorities
A. Marine Protection, Research, and Sanctuaries Act and Clean
Water Act
B. National Environmental Policy Act
C. Coastal Zone Management Act
D. Endangered Species Act
E. Magnuson-Stevens Fishery Conservation and Management Act
VI. Restrictions
VII. Proposed Action
VIII. Supporting Documents
IX. Statutory and Executive Order Reviews
I. Background
Section 102(c) of the Marine Protection, Research, and Sanctuaries
Act of 1972 (MPRSA), 33 U.S.C. 1412, gives EPA the authority to
designate sites where ocean disposal may be permitted. On October 1,
1986, the Administrator delegated the authority to designate ocean
dredged material disposal sites (ODMDS) to the Regional Administrator
of the Region in which the sites are located. The preferred alternative
site, IOSN, is located within the area assigned to EPA Region 1, see 40
CFR 1.7(b)(1); therefore, this designation is being proposed pursuant
to the EPA Region 1 Administrator's delegated authority.
EPA regulations (40 CFR 228.4(e)(1)) promulgated under the MPRSA
require, among other things, that EPA designate ocean disposal sites by
promulgation in 40 CFR part 228. Designated ocean disposal sites are
codified at 40 CFR 228.15. EPA-designated sites require a SMMP that
will help ensure environmentally sound monitoring and management of the
sites. Section 103(b) of the MPRSA, 33 U.S.C. 1413(b), provides that
any ocean disposal of dredged material should occur at EPA-designated
sites to the maximum extent feasible. In the absence of an available
EPA-designated ocean disposal site, however, the USACE is authorized to
``select'' appropriate ocean disposal sites under MPRSA section 103(b).
MPRSA section 103(b) restricts the use of USACE-selected sites to two
separate five-year terms. There are no EPA-designated dredged material
disposal sites off the coast of southern Maine, New Hampshire, and
northern Massachusetts. There is one USACE-selected site in this area,
the Cape Arundel Disposal Site (CADS), but it will no longer be
available after December 31, 2021, when its Congressionally-authorized
term of use expires.
Regulations implementing MPRSA are set forth at 40 CFR parts 220 to
229 (Ocean Dumping Regulations). With few exceptions, the MPRSA
prohibits the transportation of material from the United States for the
purpose of ocean dumping except as may be authorized by a permit or
authorization issued under the MPRSA. The MPRSA divides permitting
responsibility between EPA and the U.S. Army Corps of Engineers
(USACE). Under section 102 of the MPRSA, EPA has responsibility for
issuing permits for all materials other than dredged material (e.g.,
vessels, fish wastes, burial at sea).\1\ Under section 103 of the
MPRSA, the Secretary of the Army has the responsibility for issuing
permits and authorizations (in the case of USACE projects) for the
ocean dumping of dredged material. This permitting authority has been
delegated to the District Engineer of the USACE New England District.
The USACE makes determinations whether to issue permits and
authorizations for dredged material based on the application of, among
other things, EPA's ocean dumping criteria regulations. See 40 CFR
227.4, 227.5 and 227.6. MPRSA permits and federal projects involving
ocean dumping of dredged material are subject to EPA review and
concurrence in accordance with 33 U.S.C. 1413(c). EPA may concur with
or without conditions or decline to concur on the permit, i.e., non-
concur. If EPA concurs with conditions, the final permit must include
those conditions. If EPA declines to concur (non-concurs) on an ocean
dumping permit for dredged material, USACE cannot issue the permit.
---------------------------------------------------------------------------
\1\ The MPRSA also bans ocean disposal of certain types of
materials, such as, for example, chemical weapons and medical waste.
See 33 U.S.C. 1412(a).
---------------------------------------------------------------------------
This rule proposes to designate the proposed IOSN for the ocean
disposal of suitable dredged material. EPA has conducted the disposal
site designation process consistent with the requirements of the MPRSA,
the National Environmental Policy Act (NEPA), the Coastal Zone
Management Act (CZMA), and other relevant statutes and regulations. The
site designation is intended to be effective for an indefinite period
of time.
It is important to understand that the designation of an (ODMDS) by
EPA does not by itself authorize the disposal at that site of dredged
material from any particular dredging project. For example, designation
of the proposed IOSN would only make that ocean site available to
receive dredged material from a specific project if no environmentally
preferable, practicable alternative for managing that dredged material
exists, and if analysis of the dredged material indicates that it is
suitable for ocean disposal under the MPRSA. See 40 CFR 227.1(b), 227.2
and 227.3; 40 CFR part 227, subparts B and C.
Thus, each proposed dredging project will be evaluated on a case-
by-case basis to determine whether there are practicable,
environmentally preferable alternatives to ocean disposal (i.e.,
whether there is a need for ocean disposal). See 40 CFR 227.16. In
addition, the dredged material from each proposed disposal project will
be subject to MPRSA sediment testing requirements to determine its
suitability for possible ocean disposal at an approved site. See 40 CFR
227.6. Alternatives to ocean disposal that will be considered include
upland disposal and beneficial uses such as beach nourishment. If
environmentally preferable, practicable disposal alternatives exist,
ocean disposal will not be allowed. EPA also will not approve dredged
material for ocean disposal if it determines that the material has the
potential to cause unacceptable adverse effects to the marine
environment or human health.
[[Page 49077]]
See 40 CFR 227.4. The review process for proposed disposal projects is
discussed in more detail below and in the draft SMMP.
Dredged material disposal sites designated by EPA under the MPRSA
are subject to detailed management and monitoring protocols to track
site conditions and prevent the occurrence of unacceptable adverse
effects. See 33 U.S.C. 1412(c)(3)-(5). The management and monitoring
protocols for the proposed IOSN are described in the Draft SMMP. EPA is
authorized to close or limit the use of these sites to further disposal
activity if their use causes unacceptable adverse impacts to the marine
environment or human health.
II. Purpose and Need
The purpose of the proposed action is to designate an ocean
disposal site that will provide a long-term dredged material disposal
option for dredged material from harbors and navigation channels in
southern Maine, New Hampshire, and northern Massachusetts. This is
necessary to ensure the viability of dredging projects needed to
maintain international commerce and navigation through authorized
federal navigation projects and to ensure safe vessel passage for
public and private entities. The appropriateness of ocean disposal for
any specific, individual dredging project will be determined on a case-
by-case basis under the permit and authorization (in the case of Corps
projects) process under MPRSA.
The need for this effort derives from the following facts: (1) The
availability of an ODMDS in the vicinity of southern Maine, New
Hampshire, and northern Massachusetts is necessary to help maintain
safe navigation of authorized federal channels and permitted actions;
(2) projected dredging needs for the area were calculated to be
approximately 1.5 million cubic yards (mcy) of material over the next
20 years, which significantly exceeds the capacity of available
practicable alternatives to ocean disposal; (3) the states of Maine and
New Hampshire have expressed concern that available, practicable
dredged material disposal capacity is insufficient to meet projected
dredging needs and they requested this designation from EPA; (4) the
historically used, in the 1960s and early 1970s, former Isles of Shoals
Disposal Site (IOSH) was examined for potential designation, however,
this former site is located in an area that contains a diversity of
habitats that are not compatible with the ocean disposal of dredged
material; and (5) the possibility of expanding the existing CADS to
accommodate the region's dredging needs is infeasible, as studies
revealed that suitable areas with the capacity for an ODMDS are limited
at that site. The existing CADS is a USACE short-term selected site
under MPRSA section 103(b) and is scheduled to close on December 31,
2021.
In addition, the closest EPA-designated ODMDSs outside the ``Zone
of Siting Feasibility,'' (or ZSF, which is discussed in Section 4 of
the DEA), are the Portland Dredged Material Disposal Site (PDS) and the
Massachusetts Bay Disposal Site (MBDS). The draw area (i.e., the area
from which dredged material would come) for the proposed IOSN disposal
site would encompass any projects closer to that site than to either
the PDS or MBDS. The center of the ZSF is located about 42 miles from
the MBDS and 43 miles from the PDS.
While PDS and MBDS are environmentally sound sites for receiving
suitable dredged material, EPA does not consider them to be truly
viable options for the southern Maine, New Hampshire, and northern
Massachusetts region given their distance from the ZSF, which would
significantly increase the transport distance for, and duration of,
ocean disposal for dredging projects from that region. This, in turn,
would greatly increase the cost of such projects and would likely
render many dredging projects too expensive to conduct, thus
threatening safe navigation and interfering with marine recreation and
commerce. Furthermore, the greater transport distance would also be
environmentally detrimental because it would entail greater energy use,
increased air emissions, and increased risk of spills or disposal
outside of the prescribed ocean dumping zone (``short dumps'') (DEA,
Section 7.0). Regarding air emissions, increased hauling distances may
require using larger scows with more powerful tug boats, which would
use more fuel and cause more emission of air pollutants.
Congress has directed that the disposal of dredged material should
take place at EPA-designated sites, rather than USACE-selected sites,
when EPA-designated sites are available (see MPRSA 103(b)). With the
CADS (a USACE-selected site under MPRSA section 103 for short-term use)
nearing capacity and expiring on December 31, 2021, EPA's ocean
disposal site designation studies were designed to determine whether
this site or any other sites should be designated for continued long-
term use.
MPRSA criteria for selecting and designating sites require EPA to
consider previously used disposal sites or areas, with active or
historically used sites given preference in the evaluation assuming all
other things equal (40 CFR 228.5(e)). This preference is intended to
concentrate the effects, if any, of disposal practices to relatively
smaller, discrete areas that have already received dredged material,
and avoid distributing any effects over a larger geographic area.
Periodic dredging of harbors and channels and, therefore, dredged
material management, are essential for ensuring safe navigation and
facilitating marine commerce. This is because the natural processes of
erosion and siltation result in sediment accumulation in federal
navigation channels, harbors, port facilities, marinas, and other
important areas of our water bodies. Unsafe navigational conditions not
only threaten public health and safety, but also pose an environmental
threat from an increased risk of spills from vessels involved in
accidents.
Economic considerations also contribute to the need for dredging
(and the environmentally sound management of dredged material). There
are many important navigation-dependent businesses and industries in
the southern Maine, New Hampshire, and northern Massachusetts region,
ranging from shipping (especially the transportation of petroleum fuels
and bulk materials), to recreational boating-related businesses, marine
transportation, commercial and recreational fishing, interstate ferry
operations, and U.S. Navy and U.S. Coast Guard facilities. These
businesses and industries contribute substantially to the region's
economic output, the gross state product (GSP) of the bordering states,
and tax revenue. Continued access to harbors, berths, and mooring areas
in the ZSF is vital to ensuring the continued economic health of these
industries, and to preserving the ability of the region to import
fuels, bulk supplies, and other commodities at competitive prices and
to preserve ocean access for the commercial fishing fleet that exists
within the ZSF. In addition, preserving navigation channels, marinas,
harbors, berthing areas, and other marine resources, improves the
quality of life for residents and visitors to the southern Maine, New
Hampshire, and northern Massachusetts region by facilitating
recreational boating and associated activities, such as fishing and
sightseeing.
III. Potentially Affected Entities
Entities potentially affected by this proposed action are persons,
organizations, or government bodies seeking to dispose of dredged
material
[[Page 49078]]
in ocean waters off the coast of southern Maine, New Hampshire, and
northern Massachusetts, subject to the requirements of the MPRSA and
their implementing regulations. This proposed rule is expected to be
primarily of relevance to:
(a) Parties seeking MPRSA permits from to transport dredged
material for disposal into the ocean waters off the coast of southern
Maine, New Hampshire, and northern Massachusetts, and (b) to the USACE
itself for its own dredged material projects involving ocean disposal.
Potentially affected entities and categories of entities that may
seek to use the proposed ocean dredged material disposal site and would
be subject to the proposed rule include:
------------------------------------------------------------------------
Examples of potentially
Category affected entities
------------------------------------------------------------------------
Federal government..................... USACE (Civil Works Projects),
U.S. Navy, U.S. Coast Guard,
and other federal agencies.
State, local, and tribal governments... Governments owning and/or
responsible for ports,
harbors, and/or berths,
government agencies requiring
ocean disposal of dredged
material associated with
public works projects.
Industry and general public............ Port authorities, shipyards and
marine repair facilities,
marinas and boatyards, and
berth owners.
------------------------------------------------------------------------
This table is not intended to be comprehensive, but rather provides
a guide for readers regarding the types of entities that could
potentially be affected should the proposed rule become a final rule.
EPA notes that nothing in this proposed rule alters the jurisdiction or
authority of EPA, the USACE, or the types of entities regulated under
the MPRSA. Questions regarding the applicability of this proposed rule
to a particular entity should be directed to the contact person listed
in the preceding FOR FURTHER INFORMATION CONTACT section.
IV. Disposal Site Description
Today's proposed rule is to designate the IOSN for ocean disposal
of suitable dredged material. A DEA and draft SMMP have been prepared
for the proposed IOSN and are available for review and comment by the
public. Copies may be obtained by request from the FOR FURTHER
INFORMATION CONTACT listed in the introductory section to this proposed
rule. Use of the proposed IOSN would be subject to any restrictions
included in the site designation and the approved SMMP. These
restrictions will be based on a thorough evaluation of the proposed
site pursuant to the Ocean Dumping Regulations, potential disposal
activity expected at the site, and consideration of public review and
comment. Additional restrictions may be placed on any permit or
authorization to use the site.
The proposed IOSN is located off the coast southern Maine, New
Hampshire, and northern Massachusetts, approximately 10.8 nmi east of
Portsmouth, New Hampshire and 5.25 nmi east-northeast of the former
IOSH site. This new potential disposal site is currently defined as an
8,500-foot (2590-meter) diameter circle on the seafloor with its center
located at 70[deg] 26.995' W and 43[deg] 1.142' N. The sediments at the
site are predominately soft, fine-grained silts and clays. Water depths
at proposed IOSN vary from 255 feet to 340 feet and gradually slope
from approximately 295 feet on the western boundary to 328 feet in the
southeastern portion of the site. The area is generally flat soft-
bottom.
V. Compliance With Statutory and Regulatory Authorities
In proposing to designate the IOSN for the ocean disposal of
dredged material from harbors and navigation channels in southern
Maine, New Hampshire, and northern Massachusetts, EPA has conducted the
dredged material disposal site designation process consistent with the
requirements of the MPRSA, NEPA, CZMA, the Endangered Species Act
(ESA), the Magnuson-Stevens Fishery Conservation and Management Act
(MSFCMA), and all other applicable legal requirements.
A. Marine Protection, Research, and Sanctuaries Act
Section 102(c) of the MPRSA, 33 U.S.C. 1412(c), gives the
Administrator of EPA authority to designate sites where ocean disposal
of dredged material may be permitted. See also 33 U.S.C. 1413(b) and 40
CFR 228.4(e). The statute places no specific time limit on the term for
use of an EPA-designated ocean disposal site. EPA may, however, place
various restrictions or limits on the use of a site based on the site's
capacity to accommodate dredged material or other environmental
concerns. See 33 U.S.C. 1412(c). In addition, EPA may, if appropriate,
close a previously designated dredged material disposal site. See 33
U.S.C. 1412(c)(3)(E). See also 40 CFR 228.3(a).
The Ocean Dumping Regulations, see generally 40 CFR Subchapter H,
prescribe general and specific criteria at 40 CFR 228.5 and 228.6,
respectively, to guide EPA's choice of disposal sites for final
designation. EPA regulations at 40 CFR 228.4(e)(1) provide, among other
things, that EPA will designate any disposal sites by promulgation in
40 CFR part 228. Ocean dumping sites designated on a final basis are
promulgated at 40 CFR 228.15. Section 102(c) of the MPRSA, 33 U.S.C.
1412(c), and 40 CFR 228.3 also establish requirements for EPA's ongoing
management and monitoring, in conjunction with the USACE, of dredged
material disposal sites designated by EPA to ensure that unacceptable,
adverse environmental impacts do not occur. Examples of such management
and monitoring include the following: Regulating the times, rates, and
methods of disposal, as well as the quantities and types of material
that may be disposed; conducting pre- and post-disposal monitoring of
sites; conducting disposal site evaluation and designation studies;
and, if warranted, recommending modification of site use and/or
designation conditions and restrictions. See also 40 CFR 228.7, 228.8,
228.9.
Finally, a disposal site designation by EPA does not actually
authorize any dredged material to be disposed of at that site. It only
makes that site available as a possible management option if various
other conditions are met first. Use of the site for dredged material
disposal must be authorized by the USACE under MPRSA section 103(b),
subject to EPA review and concurrence, and such disposal at the site
can only be authorized if: (1) It is determined that there is a need
for ocean disposal for that project (i.e., that there are no
practicable alternatives to such disposal that would cause less harm to
the environment); and (2) the dredged material satisfies the applicable
environmental impact criteria specified in ocean dumping regulations at
40 CFR part 227. See 40 CFR 227.1(b), 227.2, 227.4, 227.5, 227.6 and
227.16. Furthermore, the authorization for disposal also is subject to
review for compliance with other applicable legal requirements, which
may include the ESA, the MSFCMA, the CWA (including any applicable
state water quality standards), NEPA, and the CZMA. The following
describes EPA's evaluation of the proposed IOSN alternatives pursuant
to the applicable site evaluation criteria, and its compliance with
site management and monitoring requirements.
[[Page 49079]]
EPA undertook its evaluation of whether to designate any dredged
material disposal sites in the southern Maine, New Hampshire, and
northern Massachusetts region pursuant to its authority under MPRSA
section 102(c) in response to several factors. These factors include
the following:
The determination by EPA, based on the evaluation of
projected dredging needs over the 20-year planning horizon and
alternatives to open-water disposal conducted for the DEA, that the
potential alternatives to open-water disposal do not provide sufficient
capacity to accept the quantity of dredged material expected to be
generated over the next 20 years in the region;
Recognition that use of the CADS will cease after December
31, 2021, pursuant to the USACE site selection authority under MPRSA
section 103(b) and the closure date for the site as established by
Congress under Public Law 115-270, Title I, Sec 1312;
The understanding that in the absence of an EPA-designated
disposal site or sites, any necessary ocean disposal would either be
stymied, despite the importance of dredging for ensuring navigational
safety and facilitating marine commercial and recreational activities,
or the USACE would have to undertake additional short-term ocean
disposal site selections under MPRSA section 103 in the future;
The clear Congressional preference expressed in MPRSA
section 103(b) that any ocean disposal of dredged material take place
at EPA-designated sites, if feasible; and
The fact that the two closest EPA-designated ocean
disposal sites to this region, the PDS and MBDS, are 42 nmi and 43 nmi
respectively from the ZSF dredging center, which would significantly
increase transportation costs and project durations, which would likely
render some dredging projects infeasible, while also projects that went
forward would involve increased energy use, air emissions, and the risk
of spills or short-dumps.
EPA's evaluation considered whether there was a need to designate
one or more ocean disposal sites for long-term dredged material
disposal, including an assessment of whether other dredged material
management methods could reasonably be judged to obviate the need for
such designations. Having concluded that there was a need for ocean
disposal sites, EPA then assessed whether there were sites that would
satisfy the applicable environmental criteria to support a site
designation under MPRSA section 102(c). The MPRSA and EPA regulations
promulgated thereunder address the designation of dredged material
disposal sites. The law and regulations specify criteria for use in
site evaluations and indicate that a SMMP must be developed for all
designated sites. As discussed below, EPA complied with all of these
provisions of the statute and regulations in proposing to designate the
IOSN.
1. Procedural Requirements
MPRSA sections 102(c) and 103(b) indicate that EPA may designate
ocean disposal sites for dredged material. EPA regulations at 40 CFR
228.4(e) specify that dredged material disposal sites will be
``designated by EPA promulgation in this [40 CFR] part 228 . . . .''
EPA regulations at 40 CFR 228.6(b) direct that if an environmental
assessment and evaluation is prepared by EPA to assess the proposed
designation of one or more disposal sites, it should include the
results of an environmental evaluation of the proposed disposal
site(s), the environmental assessment should be presented to the public
along with a proposed rule for the proposed disposal site
designation(s), and that a Final Environmental Assessment should be
provided at the time of final rulemaking for the site designation. EPA
has complied with all procedural requirements related to the
publication of this proposed rule and associated DEA. The Agency has
prepared a thorough environmental evaluation of the recommended
alternative site being proposed for designation, other alternatives
sites, and other courses of action (including the option of not
designating open-water disposal sites). This evaluation is presented in
the DEA (and related documents) and this proposed rule.
2. Disposal Site Selection Criteria
EPA regulations under the MPRSA identify four general criteria and
11 specific criteria for evaluating locations for the potential
designation of dredged material disposal sites. See 40 CFR 228.4(e),
228.5 and 228.6. The evaluation of the proposed IOSN with respect to
the four general and 11 specific criteria is discussed in detail in the
DEA and supporting documents and is summarized below.
General Criteria (40 CFR 228.5)
As described in the DEA, and summarized below, EPA has determined
that the proposed IOSN satisfies the four general criteria specified in
40 CFR 228.5. This is discussed in more detail in Chapter 4 of the DEA.
i. Sites must be selected to minimize interference with other
activities in the marine environment, particularly avoiding areas of
existing fisheries or shellfisheries, and regions of heavy commercial
or recreational navigation (40 CFR 228.5(a)).
EPA's evaluation determined that use of the proposed IOSN would
cause minimal interference with the activities identified in the
criterion. EPA and USACE used information from a variety of sources to
determine what activities might be interfered with by the disposal of
dredged material at the proposed IOSN. EPA considered recreational
activities, commercial fishing areas, cultural or historically
significant areas, commercial and recreational navigation, and existing
scientific research activities. EPA and USACE used mapped Geographic
Information System (GIS) data to overlay the locations of various uses
and natural resources of the marine environment on the disposal site
location and surrounding areas (including their bathymetry). Analysis
of this data indicated that use of the site would have minimal
potential for interfering with other existing or ongoing uses of the
marine environment in and around the proposed IOSN, including lobster
harvesting or fishing activities. While the site is located in an area
where periodic fishing activity occurs, it is not considered a unique
fishing ground or highly significant fishery harvest area. Finally, the
site is not located in shipping lanes or any other region of heavy
commercial or recreational navigation. Furthermore, the site is located
in an area where any other vessels could easily navigate around any
disposal vessels at or near the site, and the significant water depths
at the site mean that material placed there will not interfere with
navigation by extending up too high into the water column.
ii. Sites must be situated such that temporary perturbations to
water quality or other environmental conditions during initial mixing
caused by disposal operations would be reduced to normal ambient levels
or to undetectable contaminant concentrations or effects before
reaching any beach, shoreline, marine sanctuary, or known
geographically limited fishery or shellfishery (40 CFR 228.5(b)).
EPA's analysis concludes that the proposed IOSN satisfies this
criterion. First, the site will be used only for the disposal of
dredged material determined to be suitable for ocean disposal by
application of the MPRSA's ocean dumping criteria. See 40 CFR part 227.
These criteria include provisions related to water quality and account
for initial mixing. See 40 CFR 227.4, 227.5(d), 227.6(b) and (c),
227.13(c), 227.27, and
[[Page 49080]]
227.29. Data evaluated during development of the DEA, indicates that
any temporary perturbations in water quality or other environmental
conditions at the site during initial mixing from disposal operations
will be limited to the immediate area of the site and will neither
cause any significant environmental degradation at the site nor reach
any beach, shoreline, marine sanctuary, or other important natural
resource area. Second, the site is a significant distance from any
beach, shoreline, marine sanctuary, or known geographically limited
fishery or shellfishery.
iii. The sizes of disposal sites will be limited in order to
localize for identification and control any immediate adverse impacts,
and to permit the implementation of effective monitoring and
surveillance to prevent adverse long-range impacts. Size,
configuration, and location are to be determined as part of the
disposal site evaluation (40 CFR 228.5(d)).
EPA has determined, based on the information presented in the DEA,
that the proposed IOSN alternative is sufficiently limited in size to
allow for the identification and control of any immediate adverse
impacts, and to permit the implementation of effective monitoring and
surveillance to prevent adverse long-range impacts. The proposed IOSN
covers approximately 2.4 nmi\2\ of bottom, which is approximately
0.007% of the bottom surface area of the Gulf of Maine. The long
history of dredged material disposal site monitoring in New England,
and specifically at active and historic dredged material disposal sites
elsewhere in the Gulf of Maine, provides ample evidence that these
surveillance and monitoring programs are effective at determining
physical, chemical, and biological impacts at sites of the size of the
options considered in this case.
The proposed IOSN is identified by specific coordinates spelled out
in the DEA, and the use of precision navigation equipment in both
dredged material disposal operations and monitoring efforts will enable
accurate disposal operations and contribute to effective management and
monitoring of the sites. Detailed plans for the management and
monitoring of the proposed IOSN are described in the draft SMMP
(Appendix G of the DEA). Finally, as discussed herein and in the DEA,
EPA has tailored the size of the proposed IOSN based on site
characteristics, such as bottom sediment type and bottom features, so
that the area and boundaries of the sites are optimized for
environmentally sound dredged material disposal operations.
iv. EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites that have
been historically used (40 CFR 228.5(e)).
EPA has determined that designation of the proposed IOSN is
consistent with this criterion. EPA evaluated sites beyond the edge of
the continental shelf and historical disposal sites in the Gulf of
Maine as part of the alternatives analysis conducted for the DEA.
Potential disposal areas located off the continental shelf would be a
significant distance offshore, and impracticable for dredging projects
from the area under evaluation. The nearest point on the continental
shelf/slope boundary to Portsmouth Harbor is more than 230 miles south,
about 96 miles southeast of Nantucket. The distance to the slope due
east is even greater at about 270 miles. The haul distance to an off-
shelf disposal site is therefore much greater than the average
operational limit of the southern Maine, New Hampshire, and northern
Massachusetts projects, making an off-shelf site infeasible for all
projects. Additionally, the cost for evaluation and monitoring and the
uncertainty of the environmental effects of off-shelf placement makes
that option undesirable. Environmental concerns include increased risk
of encountering endangered species during transit, increased fuel
consumption and air emissions, and greater potential for accidents in
transit that could lead to dredged material being dumped in unintended
areas.
USACE dredging and disposal records do not show evidence of dredged
material ever having been placed at the area that encompasses the
proposed IOSN. The only sites within the ZSF that have been used
historically are the former IOSH which, according to USACE files, was
used in the 1960s and early 1970s, or at the CADS, a USACE-selected
MPRSA Section 103 site located off of Cape Arundel, Maine. However,
both the IOSH and the CADS are limited in their capacity to accept new
material if they were to be designated and have remaining seafloor
areas that are incompatible with dredged material disposal.
Specific Criteria (40 CFR 228.6)
In addition to the four general criteria discussed above, 40 CFR
228.6(a) lists eleven specific factors to be used in evaluating the
impact of using the site(s) for dredged material disposal under the
MPRSA. Consistency with the eleven specific criteria is discussed
below. This is also discussed in more detail in Chapter 4 of the DEA.
i. Geographical Position, Depth of Water, Bottom Topography and
Distance From Coast (40 CFR 228.6(a)(1)).
Based on analyses in the DEA, EPA has concluded that the
geographical position (i.e., location), water depth, bottom topography
(i.e., bathymetry), and distance from coastlines of the proposed IOSN
will facilitate containment of dredged material within site boundaries
and reduce the likelihood of material being transported away from the
site to adjacent seafloor areas. As described in the preceding Disposal
Sites Description section and in the above discussion of compliance
with general criteria iii and iv (40 CFR 228.5(c) and (d)), the
proposed IOSN is located far enough from shore and in deep enough water
to avoid adverse impacts to the coastline.
The proposed IOSN is a containment area, so dredged material placed
there is expected to stay in the site and not cause adverse effects to
adjacent seafloor areas. The closest point of land to the proposed IOSN
is Portsmouth, New Hampshire, which is located approximately 10.8 nmi
(20 km) to the west. The shoreward edge of the site is approximately
nine nmi from the nearest beaches in Rye, NH, and the site is located
in waters ranging from 255 to 340 feet deep. As discussed in the DEA,
the proposed IOSN is of a sufficient depth to allow the disposal of the
amount of material that is projected over the 20-year planning horizon
without exceeding any depth threshold. As a result, any short-term
impacts from dredged material disposal will be localized and this,
together with other regulatory requirements described elsewhere in this
document, will facilitate prevention of any adverse impacts at and
around the proposed IOSN.
ii. Location in Relation to Breeding, Spawning, Nursery, Feeding,
or Passage Areas of Living Resources in Adult or Juvenile Phases (40
CFR 228.6(a)(2)).
EPA considered the proposed IOSN in relation to breeding, spawning,
nursery, feeding, and passage areas for adult and juvenile phases
(i.e., life stages) of living resources in the Gulf of Maine. From this
analysis, EPA concluded that, while disposal of suitable dredged
material at the proposed IOSN would cause some short-term, localized
effects, overall it would not cause adverse effects to the habitat
functions and living resources specified in the above criterion. As
previously noted, the proposed IOSN covers approximately 2.4 nmi\2\ of
bottom, which is approximately 0.007%
[[Page 49081]]
of the bottom surface area of the Gulf of Maine.
Generally, there are three primary ways that dredged material
disposal could potentially adversely affect marine resources. First,
disposal can cause physical impacts by injuring or burying less mobile
fish, shellfish, and benthic organisms, as well as their eggs and
larvae. Second, tug and barge traffic transporting the dredged material
to a disposal site could possibly collide or otherwise interfere with
marine mammals and reptiles. Third, contaminants in the dredged
material could potentially bioaccumulate through the food chain.
However, EPA and the other federal and state agencies that regulate
dredging and dredged material disposal have responsibilities and
authorities to impose requirements that prevent or greatly limit the
potential for these types of impacts to occur.
Dredged material disposal will have some localized impacts to fish,
shellfish, and benthic organisms, such as clams and worms, that are
present at an ocean disposal site (or in the water column directly
above the site) during a disposal event. The sediment plume may entrain
and smother some fish in the water column, and may bury some fish,
shellfish, and other marine organisms on the sea floor. It also may
result in a short-term loss of forage habitat in the immediate disposal
area, but recolonization of disposal mounds by benthic infauna within
1-3 years after disposal is expected at the proposed IOSN. As discussed
in the DEA (section 7.5.2), over time, disposal mounds recover and
develop abundant and diverse biological communities that are healthy
and able to support species typically found in the ambient
surroundings. Some organisms may burrow deeply into sediments, often up
to 20 inches, and are more likely to survive a burial event.
To further reduce potential environmental impacts associated with
dredged material disposal, the dredged material from each proposed
dredging project will be subjected to the MPRSA sediment testing
requirements set forth at 40 CFR part 227 to determine its suitability
for ocean disposal. Suitability for ocean disposal is determined by
testing the proposed dredged material for toxicity and bioaccumulation
and by quantifying the risk to human health that would result from
consuming marine organisms that are exposed to the dredged material and
its associated contaminants using a risk assessment model. If it is
determined that the sediment is unsuitable for ocean disposal--that is,
that it may unreasonably degrade or endanger human health or the marine
environment--it cannot be disposed at disposal sites designated under
the MPRSA. See 40 CFR 227.6. Therefore, EPA does not anticipate
significant effects on marine organisms from dredged material disposal
at the sites under evaluation.
Regarding the potential for impacts to endangered species, EPA is
complying with the ESA by consulting with the National Marine Fisheries
Service (NMFS) and U.S. Fish and Wildlife Service (USFWS) concerning
EPA's determination that the designation of the proposed IOSN would not
likely adversely affect federally-listed species under their respective
jurisdictions or any habitat designated as critical for such species.
EPA also is coordinating with NMFS under the MSFCMA on potential
impacts to essential fish habitat (EFH). Further details on these
consultations are provided in the DEA and the sections below describing
compliance with the ESA and MSFCMA.
EPA recognizes that dredged material disposal causes some short-
term, localized adverse effects to marine organisms in the immediate
vicinity of each disposal event. But because dredged material disposal
would be limited to suitable material (see above regarding compliance
with the general criterion at 40 CFR 228.5(d), EPA concludes that
designating proposed IOSN would not cause unacceptable or unreasonable
adverse impacts to breeding, spawning, nursery, feeding, or passage
areas of living resources in adult or juvenile phases. There is no
evidence of long-term effects on benthic processes or habitat
conditions.
iii. Location in Relation to Beaches and Other Amenity Areas (40
CFR 228.6(a)(3)).
EPA's analysis concludes that the proposed IOSN satisfies this
criterion. The proposed IOSN is located approximately 10.8 nmi (20 km)
east of Portsmouth, New Hampshire. The shoreward edge of the site is
approximately nine nautical miles off the nearest beaches in Rye, NH,
and is located in waters ranging in depth from 255 to 340 feet. The
proposed IOSN is far enough away from beaches, parks, wildlife refuges,
and other areas of special concern to prevent adverse impacts to these
amenities. Based on information presented in section 6.3 of the DEA,
and past monitoring of actual disposal activities, this distance is
beyond any expected movement of dredged material due to tidal motion or
currents. As noted above, any temporary perturbations in water quality
or other environmental conditions at the sites during initial mixing
from disposal operations will be limited to the immediate area of the
sites and will not reach any beaches, parks, wildlife refuges, or other
areas of special concern.
Thus, EPA does not anticipate that the use of the proposed IOSN
would cause any adverse impacts to beaches or other amenity areas.
iv. Types and Quantities of Wastes Proposed To Be Disposed of, and
Proposed Methods of Release, Including Methods of Packing the Waste, if
Any (40 CFR 228.6(a)(4)).
Dredged material subject to the MPRSA is not classified as a waste,
and the proposed IOSN is only being considered for the disposal of
dredged material; disposal of other types of material will not be
allowed. It also should be noted that the disposal of certain other
types of material is expressly prohibited by the MPRSA and EPA
regulations (e.g., industrial waste, sewage sludge, chemical warfare
agents, insufficiently characterized materials) (33 U.S.C. 1414b; 40
CFR 227.5).
Sites that are designated will receive dredged material transported
by either government or private contractor hopper dredges or scows.
Current hopper dredges or scows available for use have hopper
capacities ranging from 800 to 6,000 cubic yards (cy). This would be
the likely volume range of dredged material deposited in any one
dredging placement cycle.
The volume of dredged material to be removed from federal projects
in the southern Maine, New Hampshire, and northern Massachusetts region
varies greatly from year to year depending upon need and funding. The
majority of the dredged material to be disposed of in the ocean would
come from shoals in the channels, anchorages, and turning basins in
projects within the study area and would consist primarily of fine-
grained marine sediments that have been transported into the projects
by tidal currents, riverine deposition, and upland erosion. The fine-
grained material undergoes rigorous testing to confirm that the
material is suitable for unconfined ocean placement. The proposed site
has been sized to accommodate the quantity of material expected to be
placed there over the 20-year planning horizon. As previously
discussed, dredging in southern Maine, New Hampshire, and northern
Massachusetts is projected to generate approximately 1.5 million mcy of
dredged material over the next 20 years.
For all these reasons, no significant adverse impacts are expected
to be associated with the types and quantities
[[Page 49082]]
of dredged material that may be disposed at the sites.
v. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5)).
Monitoring and surveillance are expected to be feasible at the
proposed IOSN. Upon designation of a site, monitoring would be
conducted according to the most current approved SMMP. As a containment
site, the proposed IOSN is conducive to the type of monitoring most
commonly conducted at dredged material disposal sites, including side-
scan sonar, sediment profile imaging, and sediment grab sampling. The
draft SMMP for the proposed IOSN is included as Appendix G of the DEA.
vi. Dispersal, Horizontal Transport and Vertical Mixing
Characteristics of the Area, Including Prevailing Current Direction and
Velocity, if Any (40 CFR 228.6(a)(6)).
The proposed IOSN site meets this criterion. The proposed IOSN is
located in federal waters in water depths ranging from approximately
255 to 340 feet. Water circulation in the vicinity of the proposed IOSN
is strongly influenced by the counterclockwise flow, or gyre, normally
occurring in the Gulf of Maine. The circulation of the Gulf consists of
two circular gyres, one counterclockwise within the interior of the
Gulf, and the second, clockwise over Georges Bank. Maine coastal waters
are included as the western portion of the counterclockwise gyre within
the Gulf. Current patterns in the vicinity of the proposed IOSN are
typified by coastal-parallel, non-tidal southerly drift currents
generated by the overall circulation of the Gulf of Maine.
The fine-grained sediments that dominate the area of the proposed
IOSN indicate that the site is in a depositional area. Consequently,
any material placed at the proposed site would likely remain within the
site and not be significantly affected or transported away from the
site by currents.
vii. Existence and Effects of Current and Previous Discharges and
Dumping in the Area (Including Cumulative Effects) (40 CFR
228.6(a)(7)).
USACE dredging and disposal records do not show evidence of dredged
material ever having been disposed of in the area that encompasses the
proposed IOSN. Dredged material from within the ZSF was historically
disposed of at either the CADS or the former, historically used IOSH,
which was used in the 1960s and early 1970s.
In general, results from decades of monitoring of current and
historically used ocean disposal sites in the New England region
indicate that the disposal of dredged material found suitable for ocean
disposal do not significantly alter the long-term functions and values
of seafloor bottom as potential habitat for biological communities or
contribute to long-term changes in water quality or water circulation
at the disposal sites. EPA would expect this also to be the case for
the proposed IOSN.
viii. Interference with Shipping, Fishing, Recreation, Mineral
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR
228.6(a)(8)).
In evaluating whether disposal activity at the sites could
interfere with shipping, fishing, recreation, mineral extraction,
desalination, fish or shellfish culture, areas of scientific
importance, and other legitimate uses of the ocean, EPA considered both
the effects of placing dredged material on the bottom at the proposed
IOSN, and any effects from vessel traffic associated with transporting
the dredged material to the disposal site. From this evaluation, EPA
concluded there would be no unacceptable or unreasonable adverse
effects on the considerations noted in this criterion. Some of the
factors listed in this criterion have already been discussed above due
to the overlap of this criterion with aspects of certain other
criteria. Nevertheless, EPA will address each point below.
EPA does not anticipate conflicts with commercial navigation at the
proposed IOSN. The Portsmouth Pilots and the USACE discussed the
proposed IOSN disposal site location and its anticipated use with
respect to navigation transit impacts (as discussed in more detail in
section 4.4.1 of the DEA). Vessels transiting to and from Portsmouth
Harbor from the south and southeast follow a route inshore of the Isles
of Shoals which will avoid proposed IOSN Vessels approaching or
departing to and from the east and northeast (toward Maine and Canada)
do cross the general area of the proposed IOSN disposal site. The
pilots stated that conflicts between dredge disposal operations and
shipping for large and small projects can be avoided, however, by
adequate notice to mariners of disposal activities and frequent marine
communication between the disposal tugs and the Portsmouth Pilots.
Given the open-water conditions around the site and the relatively
infrequency of dredged material disposal operations, EPA concludes that
any conflicts with vessels traveling in the area of the proposed IOSN
should be easily managed in a safe, efficient manner.
EPA also carefully evaluated the potential effects of designating
the proposed IOSN on commercial and recreational fishing for both
finfish and shellfish (including lobster) and concluded that there
would be no unreasonable or unacceptable adverse effects. As discussed
above in relation to other site evaluation criteria, dredged material
disposal will only have short-term, incidental, and insignificant
effects on organisms in the disposal sites and no appreciable effects
beyond the sites. Indeed, since past dredged material disposal has been
determined to have no significant adverse effects on fishing, the
similar projected levels of future disposal activities at the
designated site are not expected to have any significant adverse
effects.
The four main reasons that EPA concluded that no unacceptable
adverse effects would occur from disposal of dredged material at the
proposed site are discussed below. First, EPA has concluded that any
contaminants in material permitted for ocean disposal--having satisfied
the dredged material criteria in the regulations that restrict any
toxicity and bioaccumulation--will not cause any significant adverse
effects to fish, shellfish, or other aquatic organisms. Because the
proposed IOSN is a containment area, dredged material disposed at the
site is expected to remain there.
Second, the disposal sites do not encompass any especially
important, sensitive, or limited habitat for the Gulf of Maine's fish
and shellfish, such as key spawning or nursery habitat for species of
finfish. Numerous studies and data reviewed by EPA and the USACE
indicate that there is low potential for any future incremental risk
from the ocean disposal of dredged sediments at the proposed IOSN,
either in the long- or short-term.
Third, while EPA found that a small number of demersal fish (e.g.,
winter flounder), shellfish (e.g., clams and lobsters), benthic
organisms (e.g., worms), and zooplankton and phytoplankton could be
lost due to the physical effects of disposal (e.g., burial of organisms
on the seafloor by dredged material and entrainment of plankton in the
water column by dredged material upon its release from a disposal
barge), EPA also determined that these minor, temporary adverse effects
would be neither unreasonable nor unacceptable. This determination was
based on EPA's conclusion that the numbers of organisms potentially
affected represent only a minuscule percentage of those in the Gulf of
Maine, and findings from past monitoring in the region consistently
show the rapid recovery of the benthic community in an area that has
received dredged material.
[[Page 49083]]
Fourth, EPA has determined that vessel traffic associated with
dredged material disposal will not have any unreasonable or
unacceptable adverse effects on fishing. There currently are no mineral
extraction activities or desalinization facilities in the Gulf of Maine
region with which disposal activity could potentially interfere. No
finfish aquaculture currently takes place in the southeastern Gulf of
Maine. Finally, the proposed IOSN is not in an area of special
scientific importance; in fact, areas with such characteristics were
screened out very early in the alternatives screening process.
Accordingly, disposing of dredged material at the proposed IOSN will
not interfere with any of the activities described in this criterion or
other legitimate uses of this part of the Gulf of Maine.
In addition, the designation and use of the proposed IOSN site has
been determined by the EPA to be consistent with the Maine, New
Hampshire, and Massachusetts coastal zone management programs (Appendix
A of the DEA). The Maine, New Hampshire and Massachusetts coastal zone
management programs will review this consistency determination and EPA
has requested that they provide written notification of their findings.
ix. The Existing Water Quality and Ecology of the Sites as
Determined by Available Data or by Trend Assessment or Baseline Surveys
(40 CFR 228.6(a)(9)).
EPA's analysis of existing water quality and ecological conditions
at the site, which was based on available data, trend assessments, and
baseline surveys, indicates that use of the proposed IOSN will cause no
unacceptable or unreasonable adverse environmental effects.
Considerations related to water quality and various ecological factors
(e.g., sediment quality, benthic organisms, fish and shellfish) have
already been discussed above in relation to other site selection
criteria and are discussed in detail in the DEA and supporting
documents. In considering this criterion, EPA considered existing water
quality and sediment quality data collected in the Gulf of Maine,
including from the USACE's Disposal Area Monitoring System (DAMOS), as
well as water quality data from EPA's coastal nutrient criteria and
trend monitoring efforts. As discussed herein, EPA has determined that
disposal of suitable dredged material at the proposed IOSN should not
cause any significant adverse environmental effects to water quality or
to ecological conditions at the site. EPA and the USACE have prepared a
draft SMMP for the proposed IOSN to guide future monitoring of site
conditions (Appendix G of the DEA).
x. Potentiality for the Development or Recruitment of Nuisance
Species in the Disposal Sites (40 CFR 228.6(a)(10)).
Monitoring at disposal sites elsewhere in the Gulf of Maine over
the past 35 years has shown no recruitment of nuisance (invasive, non-
native) species and no such adverse effects are expected to occur at
the proposed IOSN in the future. EPA and the USACE will continue to
monitor EPA-designated sites in the Gulf of Maine under their
respective SMMPs, which include a ``management focus'' on ``changes in
composition and numbers of pelagic, demersal, or benthic biota at or
near the disposal sites'' (SMMP, Appendix G of the DEA).
In addition, source materials from projects in southern Maine, New
Hampshire, and northern Massachusetts to be dredged and transported to
the disposal site historically have been classified as marine silts and
clays, which are similar to the sediments found at the proposed IOSN
site. Any material proposed for ocean disposal at the proposed IOSN
site would be subject to sediment quality evaluation. Therefore, it is
highly unlikely that any nuisance species could be established at the
proposed disposal site since habitat (i.e., sediment type) or
contaminant levels are unlikely to change over the long-term use of the
site.
xi. Existence at or in Close Proximity to the Sites of Any
Significant Natural or Cultural Feature of Historical Importance (40
CFR 228.6(a)(11)).
There are no natural features of historical importance in the
proposed IOSN, and the cultural resources that have the greatest
potential for being impacted in this area are shipwrecks. Jeffery's
Ledge, located to the east of the proposed IOSN, is an important
feeding ground for humpback whales and right whales in the summer and
fall months and serves as a prime recreational whale watching area. No
impacts to this area are expected based on disposal of suitable dredged
material at the proposed IOSN. Procedures outlined in the draft SMMP
(Appendix G of the DEA) will be followed to further protect this
feature.
As discussed in section 6.7 of the DEA, sidescan sonar of the
proposed IOSN was conducted and no potential shipwrecks or other
cultural feature were noted. The cultural resource literature search
conducted for the proposed IOSN area did not identify any shipwrecks in
the vicinity. While undiscovered shipwrecks could occur in the area, it
is unlikely based on the results of the sidescan survey of the area.
Based on this information, it is unlikely that any significant cultural
resources will be affected from the designation and use of the disposal
site.
3. Disposal Site Management (40 CFR 228.3, 228.7, 228.8 and 228.9)
The proposed IOSN would be subject to specific management
requirements to ensure that unacceptable adverse environmental impacts
do not occur. Examples of these requirements include: (1) Restricting
use of the sites to the disposal of dredged material that has been
determined to be suitable for ocean disposal under the requirements of
the MPRSA; (2) monitoring the disposal site and associated reference
site, the latter of which is not used for dredged material disposal, to
assess potential impacts to the marine environment by providing a point
of comparison to an area unaffected by dredged material disposal; and
(3) retaining the right to limit or close these sites to further
disposal activity if monitoring or other information reveals evidence
of unacceptable adverse impacts to the marine environment. As mentioned
above, dredged material disposal will not be allowed when weather and
sea conditions could interfere with safe, effective placement of any
dredged material at a designated site.
In accordance with the requirements of MPRSA section 102(c) and 40
CFR 228.3, EPA and the USACE have developed a draft SMMP for the
proposed IOSN.
B. National Environmental Policy Act
The NEPA, 42 U.S.C. 4321 et seq., requires the public analysis of
the potential environmental effects of proposed federal agency actions
and reasonable alternative courses of action to ensure that these
effects, and the differences in effects among the different
alternatives, are understood. The goal of this analysis is to ensure
high quality, informed, and transparent decision-making, to facilitate
avoiding or minimizing any adverse effects of proposed actions, and to
help restore and enhance environmental quality. See 40 CFR 6.100(a) and
1500.1(c) and 1500.2(d) through (f). NEPA requires public involvement
throughout the decision-making process. See 40 CFR 6.400(a) and 40 CFR
1503 and 1501.7, 1506.6.
EPA disposal site designation evaluations conducted under the MPRSA
have been determined to be ``functionally equivalent'' to NEPA reviews,
so that they are not subject to NEPA analysis requirements as a matter
of law. Nevertheless, as a matter of
[[Page 49084]]
policy, EPA voluntarily uses NEPA procedures when evaluating the
potential designation of ocean dumping sites. See 63 FR 58045 (Notice
of Policy and Procedures for Voluntary Preparation of National
Environmental Policy Act Documents, October 29, 1998). While EPA
voluntarily uses NEPA review procedures in conducting MPRSA disposal
site designation evaluations, EPA also has explained that ``[t]he
voluntary preparation of these documents in no way legally subjects the
Agency to NEPA's requirements'' (63 FR 58046).
In this case, EPA and the USACE prepared a ``Draft Environmental
Assessment and Evaluation Study for Designation of an Ocean Dredged
Material Disposal Site to serve the Southern Maine, New Hampshire, and
Northern Massachusetts Region'' (DEA). If EPA decides to proceed with
this proposed action after full consideration of public comments, the
Agency will publish a final rule for the site designation. In addition,
EPA will also publish a Responses to Comments document in conjunction
with publication of a Final Environmental Assessment (FEA). The
Responses to Comments will identify and respond to comments received on
the DEA and proposed rule. If, after full consideration of public
comments, EPA and the USACE determine that the designation of the
proposed IOSN will not have significant environmental impacts, the EPA
and the USACE will issue a Finding of No Significant Impact (FONSI). A
FONSI is a document that presents the reasons why the agency has
concluded that there are no significant environmental impacts projected
to occur upon implementation of the action.
If the FEA determines that the environmental impacts of the
proposed IOSN designation will be significant, an Environmental Impact
Statement will be prepared.
1. Cooperating Agencies
The USACE was a ``cooperating agency'' in the development of the
DEA because of its knowledge concerning the region's dredging needs,
its technical expertise in monitoring dredged material disposal sites
and assessing the environmental effects of dredging and dredged
material disposal, its history in the regulation of dredged material
disposal in the Gulf of Maine and elsewhere, and its ongoing legal role
in regulating dredging, dredged material disposal, and the management
and monitoring of disposal sites. To take advantage of expertise held
by other entities, and to promote strong inter-agency communications,
EPA also consulted and/or coordinated with the USFWS; the NMFS; the
Maine Department of Environmental Protection; the Maine Department of
Marine Resources; the Maine Geological Service; the Maine SHPO; the New
Hampshire Department of Environmental Services; the New Hampshire
Department of Fish and Game; and the Massachusetts Office of Coastal
Zone Management.
Throughout the DEA development process, EPA communicated with the
cooperating federal and state agencies to keep them apprised of
progress on the project and to solicit input. EPA conducted two
interagency meetings between May 2016 and December 2018 to solicit data
sources and concerns, to review progress, and to receive feedback on
the proposed action. EPA also was in regular contact with
representatives of these agencies throughout the DEA development
process via multiple state and regional dredging taskforce team
meetings.
2. Public Participation
Consistent with the public participation provisions of the NEPA
regulations, EPA is conducting a public review process by the release
of this proposed rule and the DEA for public comment. Comments received
as a result of the public review process will be considered, addressed,
and documented in detail in an appendix of the Final Environmental
Assessment.
3. Zone of Siting Feasibility
As one of the first steps in the DEA process, EPA, in cooperation
with other federal and state agencies, delineated a ZSF. The ZSF is the
geographic area from which reasonable and practicable open-water
dredged material disposal site alternatives should be selected for
evaluation. EPA's 1986 site designation guidance manual describes the
factors that should be considered in delineating the ZSF and recommends
locating open-water disposal sites within an economically and
operationally feasible radius from areas where dredging occurs. Other
factors to be considered include navigational restrictions, political
or other jurisdictional boundaries, the distance to the edge of the
continental shelf, the feasibility of surveillance and monitoring, and
operation and transportation costs. The ZSF analyzed in this DEA
includes the coastal waters of the southern Maine, New Hampshire, and
northern Massachusetts region between Cape Porpoise, Maine and Cape
Ann, Massachusetts. These boundaries were chosen as they are the limits
of equidistant points on the coast to either the PDS to the north off
Cape Elizabeth, Maine, or the MBDS to the south off Boston Harbor,
Massachusetts. The PDS and the MBDS are the nearest EPA-designated
ocean disposal sites in the region and are located about 85.5 miles
apart.
4. Draft Environmental Assessment and Evaluation Study
The DEA evaluates whether an ODMDS should be designated to serve
the southern Maine, New Hampshire, and southern Maine coastal region.
The DEA describes the purpose and need for any such designation, and
evaluates several alternatives to this action, including the option of
``no action'' (i.e., no designation). Based on this evaluation, EPA
concludes that designation of the proposed IOSN under the MPRSA is the
preferred alternative.
As stated in the Purpose and Need section, the purpose of this
designation is to provide a long-term, open-water dredged material
disposal site as a potential option for the future disposal of such
material. The action is necessary because periodic dredging and dredged
material disposal is unavoidably necessary to maintain safe navigation
and marine commerce in ports and harbors in the southern Maine, New
Hampshire, and northern Massachusetts coastal region. As previously
noted, dredging in southern Maine, New Hampshire, and northern
Massachusetts is projected to generate approximately 1.5 mcy of dredged
material over the next 20 years.
EPA evaluated potential alternatives to open-water disposal in the
southern Maine, New Hampshire, and northern Massachusetts coastal
region but determined that none were sufficient to meet the projected
regional dredging needs. In accordance with EPA regulations, use of
alternatives to ocean disposal will be required for dredged material
management when they provide a practicable, environmentally preferable
option for the dredged material from any particular disposal project.
See 40 CFR 227.16. When no such practicable alternatives exist,
however, EPA's designation of the proposed IOSN will provide an ocean
disposal site as a potential management option for dredged material
regulated under the MPRSA that has been tested and determined to be
environmentally suitable for ocean disposal. Sediments found to be
unsuitable for ocean disposal will not be authorized for placement at a
disposal site designated by EPA under the MPRSA and will have to be
managed in other ways.
[[Page 49085]]
EPA's initial screening of alternatives, which involved input from
other federal and state agencies led to the determination that the
ocean disposal sites were the most environmentally sound, cost-
effective, and operationally feasible options for the full quantity of
dredged material expected to be found suitable for ocean disposal over
the 20-year planning horizon. Regardless of this conclusion, in
practice, each individual dredging project will be analyzed on a case-
specific basis and ocean disposal of dredged material at a designated
site would only be authorized when there is a need for such disposal
(i.e., there are no practicable, environmentally preferable
alternatives). See 40 CFR 227.2(a)(1), 227.16(b). EPA analyzed
alternatives for the management of dredged material from navigation
channels and harbors in the southern Maine, New Hampshire, and northern
Massachusetts coastal region. This analysis evaluated several different
potential alternatives, including ocean disposal sites, upland
disposal, beneficial uses, sediment treatment, and the no-action
alternative. From this analysis, EPA determined that at least one ocean
disposal site, such as the proposed IOSN, was necessary to provide
sufficient capacity to meet the long-term dredged material disposal
needs of the region in the event that practicable alternatives to ocean
disposal are not available for all the material.
C. Coastal Zone Management Act
The CZMA, 16 U.S.C. 1451, et seq., authorizes states to establish
coastal zone management programs to develop and enforce policies to
protect their coastal resources and promote uses of those resources
that are desired by the state. These coastal zone management programs
must be approved by the Department of Commerce's National Oceanic and
Atmospheric Administration (NOAA), which is responsible for
administering the CZMA. Sections 307(c)(1)(A) and (C) of the CZMA
require federal agencies to provide relevant states with a
determination that each federal agency activity, whether taking place
within or outside the coastal zone, that affects any land or water use
or natural resource of the state's coastal zone, will be carried out in
a manner consistent to the maximum extent practicable with the
enforceable policies of the state's approved coastal zone management
program. EPA's compliance with the CZMA is described below.
Based on the evaluations presented in the DEA and supporting
documents, and a review of the federally approved Maine, Massachusetts,
and New Hampshire coastal zone programs and policies, EPA has
determined that designation of the proposed IOSN for ocean dredged
material disposal under the MPRSA would be fully consistent or
consistent to the maximum extent practicable with the enforceable
policies of the coastal zone management programs of Maine,
Massachusetts, and New Hampshire. EPA will provide a written
determination to that effect to each of the three states within the
statutory and regulatory mandated timeframes.
In EPA's view, there are several broad reasons why the proposed
designation of the IOSN would be consistent with the applicable,
enforceable policies of the states' coastal zone programs. First, the
designation is not expected to cause any significant adverse impacts to
the marine environment, coastal resources, or uses of the coastal zone.
Indeed, EPA expects the designation to benefit uses involving
navigation and berthing of vessels by facilitating needed dredging, and
to benefit the environment by concentrating any open-water dredged
material disposal at a single, environmentally appropriate site
designated by EPA and subject to the previously described SMMP, rather
than at a potential proliferation of USACE-selected disposal sites.
Second, designation of the site does not actually authorize the
disposal of any dredged material at the site, since any proposal to
dispose dredged material from a particular project at a designated site
will be subject to case-specific evaluation and be allowed only if: (a)
The material satisfies the requirements of the MPRSA and Ocean Dumping
Regulations; and (b) no practicable alternative method of management
with less adverse environmental impact can be identified. Third, the
designated disposal site will be managed and monitored pursuant to a
SMMP and if adverse impacts are identified, use of the site will be
modified to reduce or eliminate those impacts. Such modification could
further restrict, or even terminate, use of the site, if appropriate.
See 40 CFR 228.3, 228.11.
D. Endangered Species Act
Under section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), federal
agencies are required to ensure that their actions are ``not likely to
jeopardize the continued existence of any endangered species or result
in the destruction or adverse modification of habitat of such species,
which is determined to be critical.'' Depending on the species
involved, a federal agency is required to consult with the NMFS and/or
USFWS if the agency's action ``may affect'' an endangered or threatened
species or its critical habitat (50 CFR 402.14(a)). Thus, the ESA
requires consultation with NMFS and/or USFWS to adequately address
potential impacts to threatened and endangered species that may occur
at the proposed dredged material disposal site from any proposal to
dispose of dredged material.
To comply with the ESA, EPA has coordinated with NMFS and USFWS and
will request consultation concurrent with the release of the DEA. EPA
has determined that the designation of a disposal site will not result
in adverse impacts to threatened or endangered species, species of
concern, marine protected areas, or essential fish habitat. In
addition, the USACE would coordinate with the NMFS and USFWS for
individual permitted projects to further ensure that impacts would not
adversely impact any threatened or endangered species.
E. Magnuson-Stevens Fishery Conservation and Management Act
The MSFCMA, 16 U.S.C. 1801 et seq., requires the designation of
essential fish habitat (EFH) for federally managed species of fish and
shellfish. The goal of these provisions is to ensure that EFH is not
adversely impacted by fishing or other human activities, including
dredged material disposal, and to further the enhancement of these
habitats, thereby protecting both ecosystem health and the fisheries
industries. Pursuant to section 305(b)(2) of the MSFCMA, federal
agencies are required to consult with NMFS regarding any action they
authorize, fund, or undertake that may adversely affect EFH. An adverse
effect has been defined by the Act as, ``[a]ny impact which reduces the
quality and/or quantity of EFH [and] may include direct (e.g.,
contamination or physical disruption), indirect (e.g., loss of prey,
reduction in species' fecundity), site-specific or habitat-wide
impacts, including individual, cumulative, or synergistic consequences
of actions'' (50 CFR 600.810(a)).
EPA is coordinating with NMFS to ensure compliance with the EFH
provisions of the MSFCMA and has prepared an essential fish habitat
assessment in compliance with the Act. EPA will incorporate any
conservation recommendations from NMFS or explain why it has not done
so in its final action.
VI. Restrictions
Disposal shall be limited to dredged material suitable for ocean
disposal.
[[Page 49086]]
VII. Proposed Action
EPA is proposing this rule to designate the IOSN for the purpose of
providing an environmentally sound, ocean disposal option for possible
use in managing dredged material from harbors and navigation channels
in the southern Maine, New Hampshire, and northern Massachusetts
coastal region. Without this ocean dredged material disposal site
designation, there will not be a cost-effective ocean disposal site
available to serve this region after December 31, 2021, when the
current Congressionally-authorized term of use for the CADS expires. In
developing the DEA, described previously in several sections, the USACE
and EPA conducted a ``dredging needs'' assessment that estimated that a
total volume of 1.5 mcy of dredged material that would come from
southern Maine, New Hampshire, and northern Massachusetts over the 20-
year planning horizon.
The site designation process has been conducted consistent with the
requirements of the MPRSA, NEPA, CZMA, and other applicable federal and
state statutes and regulations. The basis for this federal action is
further described in the DEA that identifies EPA designation of the
proposed IOSN as the preferred alternative. The DEA also is being
released for public comment in conjunction with the publication of this
proposed rule. Upon completion of the public comment period and EPA's
consideration of all comments received, EPA will publish a Responses to
Comments document in conjunction with publication of a FEA and final
rule. The Responses to Comments will identify and respond to comments
received on the DEA and proposed rule. If, after full consideration of
public comments, EPA and the USACE determine that the designation of
the proposed IOSN will not have significant environmental impacts, the
EPA and the USACE will issue a FONSI with the FEA. A FONSI is a
document that presents the reasons why the agency has concluded that
there are no significant environmental impacts projected to occur upon
implementation of the action.
If the FEA determines that the environmental impacts of the
proposed IOSN designation will be significant, an Environmental Impact
Statement will be prepared.
If designated, the proposed IOSN is subject to management and
monitoring protocols to prevent the occurrence of unacceptable adverse
environmental impacts. These protocols are spelled out in a draft SMMP
for the site. The SMMP is included as Appendix G to the DEA. Under 40
CFR 228.3(b), the Regional Administrator of EPA Region 1 is responsible
for the overall management of this site. As previously explained, the
designation of a disposal site does not constitute or imply EPA's
approval of ocean disposal at that site of dredged material from any
specific project. Disposal of dredged material will not be allowed at
the proposed IOSN until the proposed disposal operation first receives
proper authorization from the USACE under MPRSA section 103. All MPRSA
permits and federal projects involving ocean disposal of dredged
material are subject to EPA review and concurrence under MPRSA section
103(c). EPA may concur (with or without conditions) or decline to
concur on the MPRSA permit/authorization) in accordance with MPRSA
section 103(c). If EPA concurs with conditions, the final permit/
authorization must include those conditions. If EPA declines to concur
(i.e., non-concurs), the USACE cannot issue the permit/authorize itself
to implement the MPRSA directly in USACE project involving ocean
dumping. In order to properly obtain authorization to dispose of
dredged material at the proposed IOSN disposal site under the MPRSA,
the dredged material proposed for disposal must first satisfy the
applicable criteria for testing and evaluating dredged material
specified in EPA regulations at 40 CFR part 227, and it must be
determined in accordance with EPA regulations at 40 CFR part 227,
subpart C, that there is a need for ocean disposal (i.e., that there is
no practicable dredged material management alternative to ocean
disposal with less adverse environmental impact).
VIII. Supporting Documents
1. EPA Region 1/USACE NAE. 2019. Draft Environmental Assessment and
Evaluation Study for Designation of an Ocean Dredged Material Disposal
Site for the Southern Maine, New Hampshire, and Northern Massachusetts
Coastal Region. U.S. Environmental Protection Agency, Region 1, Boston,
MA and U.S. Army Corps of Engineers, New England District, Concord, MA.
August 2019.
2. EPA Region 1/USACE NAE. 2004. Regional Implementation Manual for the
Evaluation of Dredged Material Proposed for Disposal in New England
Waters. U.S. Environmental Protection Agency, Region 1, Boston, MA, and
U.S. Army Corps of Engineers, New England District, Concord, MA. April
2004. EPA/USACE. 1991.
3. Evaluation of Dredged Material Proposed for Ocean Disposal-Testing
Manual. U.S. Environmental Protection Agency, Washington, DC, and U.S.
Army Corps of Engineers, Washington, DC. EPA--503/8-91/001. February
1991.
IX. Statutory and Executive Order Reviews
1. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action, as defined in
the Executive Order, and was therefore not submitted to the Office of
Management and Budget (OMB) for review.
2. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because it would not require persons to obtain, maintain,
retain, report, or publicly disclose information to or for a federal
agency.
3. Regulatory Flexibility Act (RFA)
This action will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (RFA). Rather, this action would provide a cost-effective,
environmentally acceptable alternative for the disposal of dredged
material for many small marina and boat yard operators in the region.
4. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or tribal governments or the private sector.
5. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the federal government and the states, or on the distribution of power
and responsibilities among the various levels of government.
6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175 because the proposed restrictions will not have
substantial direct effects on Indian tribes, on the relationship
between the federal
[[Page 49087]]
government and Indian Tribes, or the distribution of power and
responsibilities between the federal government and Indian Tribes. EPA
consulted with the potentially affected Indian tribes in making this
determination.
7. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the environmental health or safety risks addressed by this
action do not present a disproportionate risk to children.
8. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
9. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
10. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes the human health or environmental risk addressed
by this action will not have a disproportionately high and adverse
human health or environmental effects on minority, low-income, or
indigenous populations.
11. Executive Order 13158: Marine Protected Areas
Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of the Executive Order is to
protect the significant natural and cultural resources within the
marine environment, which means, ``those areas of coastal and ocean
waters, the Great Lakes and their connecting waters, and submerged
lands thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
The EPA expects that this proposed rule will have no significant
adverse impacts on the ocean and coastal waters off southern Maine, New
Hampshire, and northern Massachusetts or the organisms that inhabit
them.
12. Executive Order 13840: Regarding the Ocean Policy To Advance the
Economic, Security, and Environmental Interests of the United States
The policies in section 2 of Executive Order 13840 (83 FR 29341,
June 19, 2019) include, among others, the following: ``It shall be the
policy of the United States to: (a) Coordinate the activities of
executive departments and agencies (agencies) regarding ocean-related
matters to ensure effective management of ocean, coastal, and Great
Lakes waters and to provide economic, security, and environmental
benefits for present and future generations; [. . . and] (d) facilitate
the economic growth of coastal communities and promote ocean
industries, which employ millions of Americans, advance ocean science
and technology, feed the American people, transport American goods,
expand recreational opportunities, and enhance America's energy
security. . . .'' EPA, in developing this proposed rule, coordinated
extensively with other federal and state agencies, and potentially
affected stakeholders, to ensure effective management of dredging and
dredged material by providing a cost-effective, environmentally
acceptable alternative for the disposal of such material. The
availability of such an ocean disposal site supports the economic
growth of coastal communities and ocean industries, which will be able
to maintain safe and efficient navigation through the ports and
channels in a cost-effective manner.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Dated: August 29, 2019.
Deborah A. Szaro,
Acting Regional Administrator, EPA Region 1.
For the reasons stated in the preamble, title 40, Chapter I, of the
Code of Federal Regulations is proposed to be amended as set forth
below.
PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN
DUMPING
0
1. The authority citation for part 228 continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
0
2. In Sec. 228.15 add paragraph (b)(7) to read as follows:
Sec. 228.15 Dumping sites designated on a final basis.
(b) * * *
(7) Isles of Shoals North Dredged Material Disposal Site (IOSN).
(i) Location: A 8,500-foot (2590-meter) diameter circle on the
seafloor with its center located at 70[deg] 26.995' W and 43[deg]
1.142' N.
(ii) Size: 1,311 acres (57,142,000 square feet).
(iii) Depth: Ranges from 255 to 340 feet (78 to 104 m).
(iv) Primary use: Dredged material disposal.
(v) Period of use: Continuing use.
(vi) Restrictions: Limited to disposal of dredged material suitable
for ocean disposal.
[FR Doc. 2019-20127 Filed 9-17-19; 8:45 am]
BILLING CODE 6560-50-P
