[Federal Register: July 30, 2004 (Volume 69, Number 146)]
[Proposed Rules]
[Page 45632-45639]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jy04-39]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-7792-7]
Ocean Dumping; Proposed Designation of Sites Offshore Palm Beach
Harbor, FL and Offshore Port Everglades Harbor, FL
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA today proposes to designate two Ocean Dredged Material
Disposal Sites (ODMDSs) in the Atlantic Ocean offshore Southeast
Florida, as EPA-approved ocean dumping sites for the disposal of
suitable dredged material. One site will be located offshore Palm Beach
Harbor, Florida and the other offshore Port Everglades Harbor, Florida.
This proposed action is necessary to provide acceptable ocean disposal
sites for consideration as an option for dredged material disposal
projects in the vicinity of Palm Beach Harbor and Port Everglades
Harbor. These proposed site designations are for an indefinite period
of time, but the sites will be subject to continuing monitoring to
insure that unacceptable adverse environmental impacts do not occur.
DATES: Comments must be received on or before September 13, 2004.
ADDRESSES: Submit your comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
E-mail: mcarthur.christopher@epa.gov
Fax: (404) 562-9343
Mail: Coastal Section, EPA Region 4, 61 Forsyth Street,
SW, Atlanta, GA 30303. Attn: Christopher McArthur.
The file supporting this proposed designation is available for
public inspection at the following locations: EPA Region 4, Sam Nunn
Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303.
Department of the Army, Jacksonville District Corps of Engineers, 701
San Marco Blvd., Jacksonville, FL 32207.
FOR FURTHER INFORMATION CONTACT: Christopher J. McArthur, Ocean Dumping
Program Coordinator, U.S. Environmental Protection Agency, Region 4,
Coastal Section, 61 Forsyth Street, SW, Atlanta, GA 30303, telephone:
(404)562-9391, e-mail: mcarthur.christopher@epa.gov.
SUPPLEMENTARY INFORMATION:
A. Background
Section 102(c) of the Marine Protection, Research, and Sanctuaries
Act (MPRSA) of 1972, as amended, 33 U.S.C. 1401 et seq., gives the
Administrator of EPA the authority to designate sites where ocean
disposal may be permitted. On October 1, 1986, the Administrator
delegated the authority to designate ocean disposal sites to the
Regional Administrator of the Region in which the sites are located.
These proposed designations are being made pursuant to that authority.
The EPA Ocean Dumping Regulations promulgated under MPRSA (40 CFR
Chapter I, Subchapter H, Sec. 228.4) state that ocean dumping sites
will be designated by promulgation in this Part 228. These site
designations are being published as proposed rulemaking in accordance
with Sec. 228.4(e) of the Ocean Dumping Regulations, which permits the
designation of ocean disposal sites for dredged material. Interested
persons may participate in this proposed rulemaking by submitting
written comments within 45 days of the date of this publication to the
address given above.
B. Regulated Entities
Entities potentially affected by this action are persons,
organizations, or government bodies seeking to dispose of dredged
material into ocean waters offshore Port Everglades Harbor and Palm
Beach Harbor, Florida, under the MPRSA and its implementing
regulations. This proposed rule is expected to be primarily of
relevance to (a) parties seeking permits from the U.S. Army Corps of
Engineers (COE) to transport dredged material for the purpose of
disposal into ocean waters and (b) to the COE itself for its own
dredged material disposal projects. Potentially regulated categories
and
[[Page 45633]]
entities that may seek to use the proposed dredged material disposal
sites may include:
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Examples of potentially regulated
Category entities
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Federal Government................ U.S. Army Corps of Engineers Civil
Works Projects, U.S. Navy, and
Other Federal Agencies.
Industry and General Public....... Port Authorities, Marinas and
Harbors, Shipyards, and Marine
Repair Facilities, Berth Owners.
State, local and tribal Governments owning and/or
governments. responsible for ports, harbors, and/
or berths, Government agencies
requiring disposal of dredged
material associated with public
works projects.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action, should the proposed rule become a final rule. To determine
whether your organization is affected by this action, you should
carefully consider whether your organization is subject to the
requirement to obtain an MPRSA permit in accordance with Section 103 of
the MPRSA and the applicable regulations at 40 CFR parts 220 and 225,
and whether you wish to use the sites subject to today's proposal. EPA
notes that nothing in this proposed rule alters the jurisdiction or
authority of EPA 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.
C. EIS Development
Section 102(2)(C) of the National Environmental Policy Act (NEPA)
of 1969, as amended, 42 U.S.C. 4321 et seq., requires that federal
agencies prepare an Environmental Impact Statement (EIS) on proposals
for legislation and other major federal actions significantly affecting
the quality of the human environment. The object of NEPA is to build
into the Agency decision making process careful consideration of all
environmental aspects of proposed actions. While NEPA does not apply to
EPA activities of this type, EPA has voluntarily committed to prepare
NEPA documents in connection with ocean disposal site designations.
(See 63 FR 58045 [October 29, 1998], ``Notice of Policy and Procedures
for Voluntary Preparation of National Environmental Policy Act (NEPA)
Documents.'').
EPA, in cooperation with the COE, has prepared a Draft EIS (DEIS)
entitled ``Draft Environmental Impact Statement for Designation of the
Palm Beach Harbor Ocean Dredged Material Disposal Site and the Port
Everglades Harbor Ocean Dredged Material Disposal Site.'' On March 26,
2004, the Notice of Availability (NOA) of the DEIS for public review
and comment was published in the Federal Register (69 FR 15830 [March
26,2004]). Anyone desiring a copy of the DEIS may obtain one from the
addresses given above. The public comment period on the DEIS closed on
May 10, 2004.
EPA received 12 comment letters on the DEIS. There were six main
concerns expressed in those letters: (1) There is an inadequate
discussion of alternatives to ocean disposal; (2) the volume of
material to be disposed and number of projects to use the sites is
unclear; (3) the data on the benthic habitat within and near the
proposed ODMDSs is inadequate; (4) updated information on cumulative
impacts of activities in the area is needed; (5) potential adverse
impacts to essential fish habitat and in particular the habitat of the
blue-line tilefish have not been addressed; and (6) the potential of
Florida Current spin-off eddies to transport disposed dredged material
to important marine habitats has not been adequately addressed. No
objections to the ODMDS locations were received and three letters of
support for the need for the ODMDS were received. The concerns
identified above will be addressed in the Final EIS.
The DEIS also contained a Biological Assessment, prepared pursuant
to the requirements of Section 7 of the Endangered Species Act (ESA),
16 U.S.C. Section 1536, and the applicable implementing regulations.
The Assessment set forth EPA's preliminary determination that the site
designation of the Palm Beach Harbor ODMDS and Port Everglades Harbor
ODMDS will not affect any threatened or endangered species under the
purview of the National Marine Fisheries Service (NOAA Fisheries) and
the U.S. Fish and Wildlife Service (FWS). EPA sought comments from NOAA
Fisheries regarding the site designation and EPA's preliminary
determination. In a May 24, 2004 letter, NOAA Fisheries concluded that
adverse effects to whales are unlikely to occur from this project and
that no effects to the shortnose sturgeon or smalltooth sawfish are
likely to occur from the project.
In addition, the DEIS contained an assessment of the potential
impacts on Essential Fish Habitat (EFH). Pursuant to Section 305 of the
Magnuson-Stevens Fishery Conservation and Management Act 16 U.S.C.
Section 1855, EPA provided NOAA Fisheries a copy of the EFH Assessment
thereby initiating official consultation. In a May 6, 2004 letter, NOAA
Fisheries provided comments on the EFH Assessment and requested a
revised EFH Assessment prior to providing EFH conservation
recommendations. EPA will develop a revised EFH Assessment following
NOAA Fisheries recommendations and include it as an appendix to the
Final EIS.
Pursuant to an Office of Water policy memorandum dated October 23,
1989, EPA has evaluated the proposed site designations for consistency
with the State of Florida's (the State) approved coastal management
program. EPA has determined that the designation of the proposed sites
is consistent to the maximum extent practicable with the State coastal
management program, and submitted this determination to the State for
review in accordance with EPA policy. In addition, as part of the NEPA
process, EPA has consulted with the State regarding the effects of the
dumping at the proposed sites on the State's coastal zone. EPA will
take the State's comments into account in preparing the final EIS for
the sites, in determining whether the proposed sites should be
designated, and in determining whether restrictions or limitations
should be placed on the use of the sites, if they are designated.
In a letter dated June 7, 2004, the Florida Department of State
agreed that it is unlikely that the proposed designations will affect
any archaeological or historic resources listed, or eligible for
listing, in the National Register of Historic Places, or otherwise of
significance in accordance with the National Preservation Act of 1966
(Public Law 89-6654), as amended.
The proposed action discussed in the DEIS is the permanent
designation for continuing use of ocean disposal sites offshore Palm
Beach Harbor and Port Everglades Harbor, Florida. The purpose of the
proposed action is to provide an environmentally acceptable option for
the ocean disposal of dredged material. The need for the permanent
designation
[[Page 45634]]
of the ODMDSs is based on a demonstrated COE need for ocean disposal of
maintenance dredged material from the Federal navigation projects in
the Palm Beach Harbor and Port Everglades Harbor area. The need for
ocean disposal for these and other projects, and the suitability of the
material for ocean disposal, will be determined on a case-by-case basis
as part of the COE's process of issuing permits for ocean disposal for
private/federal actions and a public review process for its own
actions. This will include an evaluation of disposal alternatives.
For the proposed ODMDSs, the COE and EPA would evaluate all federal
dredged material disposal projects pursuant to the EPA criteria set
forth in the Ocean Dumping Regulations (40 CFR 220-229) and the COE
regulations (33 CFR 209.120 and 335-338). The COE issues Marine
Protection, Research, and Sanctuaries Act (MPRSA) permits to applicants
for the transport of dredged material intended for disposal after
compliance with regulations is determined. EPA has the right to
disapprove any ocean disposal project if, in its judgment, all
provisions of MPRSA and the associated implementing regulations have
not been met.
The DEIS discusses the need for these site designations and
examines ocean disposal site alternatives to the proposed actions. Non-
ocean disposal options have also been examined in the Disposal Area
Studies for Palm Beach Harbor and Port Everglades Harbor, prepared by
the COE and included as appendices to the DEIS. Alternatives to ocean
disposal may include upland disposal within the port areas, or
utilization of dredged material for beneficial use such as beach re-
nourishment. The studies concluded that upland disposal in the
intensively developed port areas is not feasible. Undeveloped areas
within cost-effective haul distances are environmentally valuable in
their own right. Beach placement is limited to predominately sandy
material.
The following ocean disposal alternatives were evaluated in the
DEIS:
1. Alternative Sites on the Continental Shelf
In the Palm Beach Harbor and Port Everglades Harbor nearshore area,
hardgrounds supporting coral and algal communities are concentrated on
the continental shelf. Disposal operations on the shelf could adversely
impact this reef habitat. Because the shelf is narrow, the transport of
dredged materials for disposal beyond the shelf is both practical and
economically feasible. Therefore, alternative sites on the continental
shelf are not desirable.
2. Designated Interim Sites
Two interim sites were designated for Palm Beach Harbor, one of
which is located nearshore at the port entrance and the other is
located approximately 2.9 nmi (4.5 km) offshore. Following discussions
with the State of Florida, a zone of siting feasibility was
established, eliminating from consideration any areas within 3 nautical
miles of shore to avoid direct impact to natural reefs in the area. As
a result, both Palm Beach Harbor interim sites were not considered
further.
The interim site for Port Everglades is located 1.7 nmi (3.2 km)
offshore. A 1984 survey conducted by the EPA indicated that some damage
to nearby inshore, hard bottom areas may have occurred due to the
movement of fine grained material associated with disposed dredged
material. In light of the survey findings, disposal at the Port
Everglades interim site was discontinued and the site was eliminated
from further consideration.
3. Alternative Sites Beyond the Continental Shelf
Alternative sites beyond the continental shelf considered for Palm
Beach Harbor include the 3 mile site, the 4.5 mile site and the 9 mile
site. The 4.5 mile site is approximately one square mile in size and is
located within the eastern portion of the 3 mile site. The 3 mile site
is four square miles in size. The 3 mile site was dropped from further
consideration in favor of the 4.5 mile site as it was determined that a
site four square miles in size was not necessary at the depths at this
location. The 9 mile site is 4 square miles in size. The deeper depths
at the 9 mile site result in a larger disposal footprint, due to
greater dispersion, necessitating a larger 4 square mile disposal site.
Both the 4.5 mile site and the 9 mile site were considered in the DEIS.
Alternative sites beyond the continental shelf considered for the
Port Everglades Harbor include the 4 mile site and the 7 mile site. The
4 mile site is approximately one square mile in size whereas the 7 mile
site is two square miles in size. The deeper depths at the 7 mile site
result in a larger disposal footprint necessitating a larger 4 square
mile disposal site. Both the 4 mile site and the 7 mile site were
considered in the DEIS.
4. No Action
The No-Action Alternative would not provide acceptable EPA-
designated ocean disposal sites for use by the COE or other entities
for the disposal of dredged material. Without final-designated disposal
sites, the maintenance of the existing Federal Navigation Projects at
Palm Beach Harbor and Port Everglades Harbor would be adversely
impacted with subsequent effects upon the local and regional economies.
Interim designated ODMDSs are not available. Alternative dredged
material disposal methods would be required or the dredging and dredged
material disposal discontinued. In the absence of an EPA designated
ocean dredged material disposal site, the COE could select an
alternative pursuant to Section 103 of MPRSA. In such cases, the ocean
site selected for disposal would be evaluated according to the criteria
specified in Section 102(a) of MPRSA and EPA's Ocean Dumping Regulation
and Criteria 40 CFR part 228, and EPA concurrence is required. A site
so selected can be used for five years without EPA designation, and can
continue to be used for another five years under limited conditions.
Accordingly, the No-Action alternative would not provide a long-term
management option for dredged material disposal.
5. Preferred Alternative
The preferred site near Palm Beach Harbor proposed for ODMDS
designation is an area approximately 1 square nautical mile (nmi \2\)
located east northeast of the Lake Worth Inlet and approximately 4.5
nmi offshore. The preferred site at Port Everglades Harbor proposed for
ODMDS designation is an area approximately 1 nmi \2\ located east
northeast of Port Everglades and approximately 4 nmi offshore. These
sites were found to comply with the criteria for evaluation of ocean
disposal sites established in 40 CFR Sections 228.5 and 228.6 of EPA's
Ocean Dumping Regulations. No significant impacts to critical resource
areas are expected to result from designation of either of these sites.
Similar types of impacts are expected from these sites as those located
further offshore. However, these sites are expected to result in less
areal impact as a result of their shallower depth. The preferred sites
would require significantly less consumption of resources and would
result in significantly less air emissions than the offshore sites. In
addition, monitoring of the preferred sites would be less costly to the
federal government and less difficult than the offshore sites.
[[Page 45635]]
Therefore, these sites were selected as the preferred alternatives.
The DEIS presents the information needed to evaluate the
suitability of ocean disposal areas for final designation use and is
based on a series of disposal site environmental studies. The
environmental studies and final designation are being conducted in
accordance with the requirements of MPRSA, the Ocean Dumping
Regulations, and other applicable Federal environmental legislation.
D. Proposed Site Designations
The proposed site for Palm Beach Harbor is located east of Palm
Beach, Florida, the western boundary being 4.3 nmi offshore. The
proposed ODMDS occupies an area of about 1 nmi\2\, in the configuration
of an approximate 1 nmi by 1 nmi square. Water depths within the area
range from 525 to 625 feet. The coordinates of the Palm Beach Harbor
ODMDS proposed for final designation are as follows:
26[deg]47'30'' N. 79[deg]57'09'' W.;
26[deg]47'30'' N. 79[deg]56'02'' W.;
26[deg]46'30'' N. 79[deg]57'09'' W.; and
26[deg]46'30'' N. 79[deg]56'02'' W.
Center coordinates are 26[deg]47'00'' N. and 79[deg]56'35'' W.
The proposed site for Port Everglades Harbor is located east of
Fort Lauderdale, Florida, the western boundary being 3.8 nmi offshore.
The proposed ODMDS occupies an area of about 1 nmi \2\, in the
configuration of an approximate 1 nmi by 1 nmi square. Water depths
within the area range from 640 to 705 feet. The coordinates of the Port
Everglades Harbor ODMDS proposed for final designation are as follows:
26[deg]07'30'' N. 80[deg]02'00'' W.;
26[deg]07'30'' N. 80[deg]01'00'' W.;
26[deg]06'30'' N. 80[deg]02'00'' W.; and
26[deg]06'30'' N. 80[deg]01'00'' W.
Center coordinates are 26[deg]07'00'' N. and 80[deg]01'30'' W. All
coordinates utilize the North American Datum of 1983 (NAD83).
E. Analysis of Criteria Pursuant to the Ocean Dumping Act Regulatory
Requirements
Pursuant to the Ocean Dumping Regulations, 40 CFR 228.5, five
general criteria are used in the selection and approval for continuing
use of ocean disposal sites. Sites are selected so as to minimize
interference with other marine activities, to prevent any temporary
perturbations associated with the disposal from causing impacts outside
the disposal site, and to permit effective monitoring to detect any
adverse impacts at an early stage. Where feasible, locations off the
Continental Shelf and other sites that have been historically used are
to be chosen. If, at any time, disposal operations at a site cause
unacceptable adverse impacts, further use of the site can be restricted
or terminated by EPA. The proposed sites conform to the five general
criteria.
In addition to these general criteria in Sec. Sec. 228.5 and 228.6
lists the eleven specific criteria used in evaluating a proposed
disposal site to assure that the general criteria are met. Application
of these eleven criteria constitutes an environmental assessment of the
impact of disposal at the site. The characteristics of the proposed
sites are reviewed below in terms of these eleven criteria (the DEIS
may be consulted for additional information).
1. Geographical Position, Depth of Water, Bottom Topography, and
Distance From Coast (40 CFR 228.6(a)(1))
The boundary, center coordinates, water depth and distance from
coast of the proposed sites are given above.
2. 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))
The most active breeding and nursery areas are located in inshore
waters, along adjacent beaches, or in nearshore reef areas. While
breeding, spawning, and feeding activities may take place near the
proposed ODMDSs, these activities are not believed to be confined to,
or concentrated in, these areas. While many marine species may pass
through the proposed ODMDSs, passage is not geographically restricted
to these areas.
3. Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3))
The proposed disposal sites for Palm Beach Harbor and Port
Everglades are located approximately 4.5 nmi and 4.0 nmi offshore,
respectively. The nearest beaches are located on the shorelines west of
the sites. Because of the distance of the proposed sites from the
shoreline and the expected localized effects at the disposal sites, it
is unlikely that dredged material disposal at either of the proposed
sites would adversely affect coastal beaches. Amenity areas in the
vicinity of the proposed sites include artificial and natural reefs.
The proposed disposal sites for Palm Beach Harbor and Port Everglades
are located approximately 2.6 nmi and 3.0 nmi from the outer reef,
respectively. Both proposed sites are located at least 2.3 nmi from the
nearest artificial reef. Currents in the vicinity trend alongshore in a
general north-south orientation. Modeling performed by the COE
indicates that disposed material will not impact these natural areas.
4. 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(a)(4))
The only material to be placed at the proposed ODMDSs will be
dredged material that meets the EPA Ocean Dumping Criteria in 40 CFR
parts 220 through 229. No beach quality material is proposed to be
transported to the proposed ODMDSs. The proposed sites are expected to
be used for routine maintenance of the respective Harbor Projects.
Annual average disposal volumes of 50,000 cubic yards of material are
expected at each site. Dredged material from Port Everglades Harbor is
expected to have a solids content of 60 to 70 percent solids by weight
with a grain size of 38 to 5 percent of the grains finer than sand by
weight. Dredged material from Palm Beach Harbor is expected to have
solids content of 80 to 85 percent solids by weight with a grain size
of 6 percent finer than sand. It has been demonstrated by the COE that
the most cost effective method of dredging is clamshell/barge dredging
for Palm Beach Harbor and hopper dredging for Port Everglades Harbor.
Additional foreseen use of the Port Everglades Harbor site could be the
Federal Port Everglades Deepening Project or use by the U.S. Navy in
Port Everglades. The Deepening Project has not yet been authorized and
the Navy project has not yet been permitted. The disposal of dredge
material at the proposed sites will be conducted using a near
instantaneous dumping type barge or scow.
5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))
Surveillance and monitoring of the proposed sites is feasible.
Survey vessels, aircraft overflights, or automated Geographic
Positioning Systems (GPS) surveillance systems are feasible
surveillance methods. The depths at these sites make conventional ODMDS
monitoring techniques difficult to utilize. A draft Site Management and
Monitoring Plan (SMMP) for each ODMDS has been developed and was
included in an appendix in the DEIS. The SMMPs establish a sequence of
monitoring surveys to be undertaken to determine any impacts resulting
from disposal activities. The SMMPs may be modified for cause by EPA.
[[Page 45636]]
6. Dispersal, Horizontal Transport and Vertical Mixing Characteristics
of the Area Including Prevailing Current Direction and Velocity, if Any
(40 CFR 228.6(a)(6))
Prevailing currents parallel the coast and are generally oriented
along a north-south axis. Northerly flow predominates. Mean surface
currents range from 10 to 100 cm/sec depending on direction with
maximum velocities up to 530 cm/sec. Current speeds are lower and
current reversals more common in near-bottom waters. Mean velocities of
20 cm/sec and maximum velocities of 130 cm/sec have been measured for
near-bottom waters in the area. Dredged material dispersion studies
conducted by the COE for both short (hours) and long-term (months)
transport of material disposed at the proposed Palm Beach Harbor and
Port Everglades Harbor sites indicate little possibility of disposed
material affecting near-shore reefs in the areas of the disposal sites.
7. Existence and Effects of Current and Previous Discharges and Dumping
in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7))
There are no current or previous discharges within the proposed
ODMDSs. There are two formerly designated interim-designated ODMDSs
near Palm Beach Harbor. Use of these sites was discontinued by the
implementation of the Water Resources Development Act of 1992. The
disposal of 5.2 million cubic yards of dredged material from Palm Beach
Harbor occurred between 1950 and 1983 in the interim sites. The
characteristics of the dredged material were poorly graded sand with
traces of shell fragments. The existing EPA interim-designated ODMDS at
Port Everglades Harbor is located approximately 2.5 nmi west-southwest
of the proposed site. The disposal of 220,000 cubic yards of dredged
material occurred in this site between 1952 and 1982. The
characteristics of the disposed dredged material were organic silt with
some clay. A 1984 survey conducted by EPA indicated that some damage to
nearby inshore, hard bottom areas may have occurred because of the
movement of fine material associated with the disposal of dredged
material at the site. In light of the survey findings, disposal at the
Port Everglades interim site was discontinued.
There are two wastewater ocean outfall discharges in the vicinity
of each proposed ODMDS. The nearest outfall to either of the proposed
sites is 11 miles. The effluent from wastewater outfalls has undergone
secondary treatment and chlorination. Significant adverse impacts to
the marine environment have not been documented in association with
either of these offshore wastewater outfalls. Any effects from these
discharges would be local and predominately in a north-south direction
due to prevailing currents. Therefore, these discharges should not have
any effect within the proposed sites.
8. 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))
The infrequent use of the proposed sites should not significantly
disrupt either commercial shipping or recreational boating. Commercial
and recreational fishing activities are concentrated in inshore and
nearshore waters. No mineral extraction, desalination, or mariculture
activities occur in the immediate area. Scientific resources present
near the Port Everglades Harbor site include the South Florida Ocean
Measurement Center (SFOMC, formerly the South Florida Testing
Facility). The SFOMC is located 1.5 nmi south of the proposed site.
Interference with activities at the SFOMC is not expected.
9. The Existing Water Quality and Ecology of the Site as Determined by
Available Data or by Trend Assessment or Baseline Surveys (40 CFR
228.6(a)(9))
Baseline surveys conducted for the Palm Beach Harbor and the Port
Everglades Harbor ODMDSs show the water quality and other environmental
characteristics of the proposed ODMDSs to be typical of the Atlantic
Ocean. Salinity, dissolved oxygen, and transmissivity (water clarity)
data indicated water masses over the sites were similar to water masses
in open ocean waters and deviated little between sites. Macroinfaunal
samples were dominated in numbers by annelids and arthropods. Water
quality at the proposed ODMDSs is variable and is influenced by
frequent Florida Current intrusions of offshore oceanic waters, and
periodic upwelling of deep ocean waters. The proposed disposal sites
lie on the continental slope in an area traversed by the western edge
of the Florida Current. The location of the western edge of the current
determines to a large extent whether waters at the site are
predominantly coastal or oceanic. Frequent intrusions or eddies of the
Florida Current transport oceanic waters over the continental shelf in
the vicinity of the proposed ODMDSs. Periodic upwelling/downwelling
events associated with wind stress also influence waters in the area.
No critical habitat or unique ecological communities have been
identified within or adjacent to the proposed sites.
10. Potentiality for the Development or Recruitment of Nuisance Species
in the Disposal Site (40 CFR 228.6(a)(10))
The disposal of dredged materials should not attract or promote the
development of nuisance species. No nuisance species have been reported
to occur at previously utilized disposal sites in the vicinity of
either proposed sites.
11. Existence at or in Close Proximity to the Site of Any Significant
Natural or Cultural Features of Historical Importance (40 CFR
228.6(a)(11))
Due to the proximity of proposed sites to entrance channels, the
cultural resource that has the greatest potential for impact would be
shipwrecks. Sidescan sonar surveys of the proposed sites were conducted
which should have identified any potential shipwrecks. No such features
were noted in sidescan sonar or video surveys of the proposed disposal
sites. No natural or cultural features of historical importance have
been identified at either site proposed for designation in this rule.
The Florida Department of State Division of Historical Resources was
consulted and they determined that it is unlikely that designation of
the ODMDSs would affect archaeological or historical resources eligible
for listing in the National Register of Historic Places, or otherwise
of significance.
F. Site Management
Site management of the proposed ODMDSs is the responsibility of EPA
in cooperation with the COE. The COE issues permits to private
applicants for ocean disposal; however, EPA Region 4 assumes overall
responsibility for site management. Development of Site Management
Plans is required by the MPRSA prior to final designation. Draft Site
Management and Monitoring Plans (SMMPs) for the proposed ODMDS were
developed as a part of the process of completing the DEIS. The plans
provide procedures for both site management and for the monitoring of
effects of disposal activities. The SMMPs are intended to be flexible
and may be modified by the EPA for cause.
G. Proposed Action
The DEIS concludes that the proposed sites may appropriately be
designated
[[Page 45637]]
for use. The proposed sites are consistent with the 11 specific and 5
general criteria used for site evaluation.
The designation of the Palm Beach Harbor and Port Everglades Harbor
sites as EPA-approved ODMDSs is being published as Proposed Rulemaking.
Overall management of this site is the responsibility of the Regional
Administrator of EPA Region 4.
It should be emphasized that, if an ODMDS is designated, such a
site designation does not constitute EPA's approval of actual disposal
of material at sea. Before ocean disposal of dredged material at the
site may commence, the COE must evaluate a permit application according
to EPA's Ocean Dumping Criteria (40 CFR part 227) and authorize
disposal. EPA has the right to disapprove the actual disposal if it
determines that environmental concerns under MPRSA have not been met.
H. Statutory and Executive Order Reviews
1. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(A) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(B) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(C) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(D) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA has determined that this proposed action does not meet the
definition of a ``significant regulatory action'' under E.O. 12866 as
described above and is therefore not subject to OMB review.
2. Paperwork Reduction Act
This proposed rule would not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501, et seq.) 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), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute, unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. For the purposes of assessing the impacts of today's proposed
rule on small entities, a small entity is defined as: (1) A small
business based on the Small Business Administration's (SBA) size
standards; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field. EPA has determined that this action
will not have a significant adverse economic impact on small entities
because the proposed ocean disposal site designation does not regulate
small entities. The site designations will only have the effect of
providing a long term, environmentally acceptable disposal option for
dredged material. This action will help to facilitate the maintenance
of safe navigation on a continuing basis.
4. The Unfunded Mandates Reform Act and Executive Order 12875
Title II of the Unfunded Mandates Reform Act (UMRA), Public Law
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal Mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments to have
meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising small governments on compliance with
the regulatory requirements.
EPA has determined that this proposed action contains no Federal
mandates (under the regulatory provisions of Title II of the UMRA) for
State, local and tribal governments or the private sector. It imposes
no new enforceable duty on any State, local or tribal governments or
the private sector. Thus, the requirements of section 202 and section
205 of the UMRA do not apply to this proposed rule. Similarly, EPA has
also determined that this proposed action contains no regulatory
requirements that might significantly or uniquely affect small
government entities. Thus, the requirements of section 203 of the UMRA
do not apply to this proposed rule.
5. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This proposed rule addresses the
designation of two
[[Page 45638]]
ocean disposal sites for the potential disposal of dredged materials.
This proposed action neither creates new obligations nor alters
existing authorizations of any State, local or governmental entities.
Thus, Executive Order 13132 does not apply to this rule. However, EPA
did consult with State and local government representatives in the
development of the DEIS and through solicitation of comments on the
DEIS. In addition, and consistent with Executive Order 13132 and EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' ``Policies that have Tribal
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian Tribes, on the relationship between the Federal government and
the Indian Tribes, or on the distribution of power and responsibilities
between the Federal government and Indian Tribes.''
The proposed action does not have Tribal implications. If
finalized, the proposed action would not have substantial direct
effects on Tribal governments, on the relationship between the Federal
government and Indian Tribes, or on the distribution of power and
responsibilities between the Federal government and Indian Tribes, as
specified in Executive Order 13175. This proposed rule designates ocean
dredged material disposal sites and does not establish any regulatory
policy with tribal implications. EPA specifically solicits additional
comment on this proposed rule from tribal officials. Thus, Executive
Order 13175 does not apply to this rule.
7. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe might have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health and
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This
proposed rule is not an economically significant rule as defined under
Executive Order 12866 and does not concern an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. Therefore, it is not subject to Executive Order
13045.
8. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866.
9. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless doing so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This proposed
rule does not involve technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards.
10. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each Federal agency must conduct its programs,
policies, and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
No action from this proposed rule would have a disproportionately
high and adverse human health and environmental effect on any
particular segment of the population. In addition, this rule does not
impose substantial direct compliance costs on those communities.
Accordingly, the requirements of Executive Order 12898 do not apply.
List of Subjects in 40 CFR Part 228
Environmental Protection, Water Pollution Control.
Dated: July 12, 2004.
J.I. Palmer, Jr.,
Regional Administrator for Region 4.
In consideration of the foregoing, Subchapter H of chapter I of
title 40 is proposed to be amended as set forth below:
PART 228--[AMENDED]
1. The authority citation for Part 228 continues to read as
follows:
Authority: 33 U.S.C. 1412 and 1418.
2. Section 228.14 is amended by removing and reserving paragraphs
(h)(3), (h)(4), and (h)(5).
3. Section 228.15 is amended by adding paragraphs (h)(21) and
(h)(22) to read as follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(h) * * *
(21) Palm Beach Harbor, FL Ocean Dredged Material Disposal Site.
(i) Location (NAD83): 26[deg]47'30''N., 79[deg]57'09''W.;
26[deg]47'30''N., 79[deg]56'02''W.; 26[deg]46'30''N., 79[deg]57'09''W.;
26[deg]46'30''N., 79[deg]56'02''W. Center coordinates are
26[deg]47'00''N and 79[deg]56'35''W.
(ii) Size: Approximately 1 square nautical mile.
(iii) Depth: Ranges from 525 to 625 feet.
(iv) Primary use: Dredged material.
(v) Period of use: Continuing use.
(vi) Restriction: Disposal shall be limited to suitable dredged
material. Disposal shall comply with conditions set forth in the most
recent approved Site Management and Monitoring Plan.
(22) Port Everglades Harbor, FL Ocean Dredged Material Disposal
Site.
[[Page 45639]]
(i) Location (NAD83): 26[deg]07'30''N., 80[deg]02'00''W.;
26[deg]07'30''N., 80[deg]01'00''W.; 26[deg]06'30''N., 80[deg]02'00''W.;
26[deg]06'30''N., 80[deg]01'00''W. Center coordinates are
26[deg]07'00''N and 80[deg]01'30''W.
(ii) Size: Approximately 1 square nautical mile.
(iii) Depth: Ranges from 640 to 705 feet.
(iv) Primary use: Dredged material.
(v) Period of use: Continuing use.
(vi) Restriction: Disposal shall be limited to suitable dredged
material. Disposal shall comply with conditions set forth in the most
recent approved Site Management and Monitoring Plan.
* * * * *
[FR Doc. 04-17375 Filed 7-29-04; 8:45 am]
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