[Federal Register: November 25, 2008 (Volume 73, Number 228)]
[Proposed Rules]
[Page 71575-71583]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25no08-29]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[EPA-R10-OW-2008-0826; FRL-8744-8]
Ocean Dumping; Designation of Ocean Dredged Material Disposal
Sites Offshore of the Umpqua River, OR
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed Rule.
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SUMMARY: EPA is withdrawing an earlier proposal to designate an ocean
dredged material disposal site near the mouth of the Umpqua River,
Oregon, and is proposing to designate two new ocean dredged material
disposal sites located offshore of the Umpqua River, Oregon. EPA's
proposed rule was published at 56 FR 49858 (October 2, 1991). Changes
since that time to the single site EPA proposed, as well as changes to
the ocean dumping program, including changes to the Marine Protection,
Research, and Sanctuaries Act, as amended (MPRSA), 33 U.S.C. 1401 to
1445, give rise to EPA's decision to withdraw the October 2, 1991,
proposal and to propose two new sites near the mouth of the Umpqua
River. The new sites are needed primarily to serve the long-term need
for a location to dispose of material dredged from the Umpqua River
navigation channel, and to provide a location for the disposal of
dredged material for persons who have received a permit for such
disposal. The newly designated sites will be subject to ongoing
monitoring and management to ensure continued protection of the marine
environment.
DATES: Comments on this proposed rule must be received by December 26,
2008.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OW-2008-0826 by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: Freedman.Jonathan@epa.gov.
Mail: Jonathan Freedman, U.S. Environmental Protection
Agency, Region 10, Office of Ecosystems, Tribal and Public Affairs
(ETPA-083), Aquatic Resources Unit, 1200 Sixth Avenue, Suite 900,
Seattle, Washington 98101.
Instructions: Direct your comments to Docket ID No. EPA-R10-OW-
2008-0826. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through the Web site, http://
www.regulations.gov, or through e-mail. The http://www.regulations.gov
Web site is an ``anonymous access'' system, which means EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send an e-mail comment directly to EPA
without going through the Web site, http://www.regulations.gov, your e-
mail address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters or any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information may not be publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy during
normal business hours at the U.S. Environmental Protection Agency,
Region 10, Library, 10th Floor, 1200 Sixth Avenue, Suite 900, Seattle,
Washington 98101. For access to the documents at the Region 10 Library,
contact the Region 10 Library Reference Desk at (206) 553-1289, between
the hours of 9 a.m. and 11:30 a.m., and between the hours of 1 p.m. and
4 p.m., Monday through Friday, excluding legal holidays, for an
appointment.
FOR FURTHER INFORMATION CONTACT: Jonathan Freedman, U.S. Environmental
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public
Affairs (ETPA-083), Aquatic Resources Unit, 1200 Sixth Avenue, Suite
900, Seattle, Washington 98101, phone number: (206) 553-0266, e-mail:
freedman.jonathan@epa.gov, or contact Jessica Winkler, U.S.
Environmental Protection Agency, Region 10, Office of Ecosystems,
Tribal and Public Affairs (ETPA-183), Aquatic Resources Unit, 1200
Sixth Avenue, Suite 900, Seattle, Washington 98101, phone number: (206)
553-7369, e-mail: winkler.jessica@epa.gov.
SUPPLEMENTARY INFORMATION:
1. Potentially Affected Persons
Persons potentially affected by this proposed action include those
who seek or might seek permits or approval by EPA to dispose of dredged
material into ocean waters pursuant to the Marine Protection, Research,
and Sanctuaries Act, as amended (MPRSA), 33 U.S.C. 1401 to 1445. EPA's
action would be relevant to persons, including organizations and
government bodies seeking to dispose of dredged material in ocean
waters offshore of the Umpqua River, Oregon. Currently, the U.S. Army
Corps of Engineers (Corps) would be most affected by this proposed
action. Potentially affected categories and persons include:
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Examples of potentially
Category regulated persons
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Federal Government..................... U.S. Army Corps of Engineers
Civil Works Projects, 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.... Governments owning and/or
responsible for ports,
harbors, and/or berths,
Government agencies requiring
disposal of dredged material
associated with public works
projects.
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[[Page 71576]]
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding persons likely to be affected by this
action. For any questions regarding the applicability of this action to
a particular person, please refer to the contact person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
2. Background
a. History of Disposal Sites Offshore of the Umpqua River, Oregon
Two ocean dredged material disposal sites, an Interim Site and an
Adjusted Site, have been used by the U.S. Army Corps of Engineers
(Corps) for disposal of sediments dredged from the Umpqua River
navigation project. The Interim Site was included in the list of
approved ocean disposal sites for dredged material in the Federal
Register in 1977 (42 FR 2461). A later realignment of the approach
channel to the Umpqua River estuary placed the navigation channel over
the Interim Site. In 1991 site, the Adjusted Site was selected by the
Corps pursuant to the Corps' authority under Section 103 of the MPRSA.
The use of the Interim Site was terminated at that time. Selection of
the Adjusted Site was intended to reduce potential hazards associated
with navigational conflicts in the channel and associated with mounding
of dredged material at the Interim Site. The selection of the Adjusted
Site was also intended to increase long-term disposal site capacity
near the mouth of the Umpqua River. EPA concurred on the selection of
the Adjusted Site and approved the Corps' request to continue to use
the site through the end of the 2008 dredging season. The Adjusted Site
is not a suitable candidate for designation by EPA pursuant to Section
102 of the MPRSA because use of the Adjusted Site resulted in mounding
that severely limited site capacity. In 1996, shoaling and breaking
waves associated with mounding at the Adjusted Site were reported.
Subsequently a site utilization study was conducted by the Corps in
1998. That study found evidence of mounding sufficient to warrant
serious concern regarding impact on the wave environment near the
Umpqua River entrance channel. To address that concern the volume of
dredged material placed at the Adjusted Site was reduced from an
average annual volume of 188,000 cubic yards (cy) prior to 1999 to an
average annual volume of 108,000 cy from 1999 to 2007. EPA determined
that alternatives to the Adjusted Site would be needed for long-term
disposal capacity near the mouth of the Umpqua River.
b. Location and Configuration of Proposed Umpqua River Ocean Dredged
Material Disposal Sites
Today, EPA withdraws the rule the Agency proposed on October 2,
1991, at 56 FR 49858, to designate an Umpqua River site, and
simultaneously proposes to designate two Umpqua River ocean dredged
material sites to the north and south, respectively, of the existing
Adjusted Site. The coordinates for the two proposed sites are listed
below. The figure below shows the location of the Umpqua River ocean
dredged material disposal sites (Umpqua River ODMD Sites or Sites) EPA
proposes to designate today. The configuration of each Site is expected
to allow dredged material disposed in shallower portions of each Site
to naturally disperse into the littoral zone without creating mounding
conditions that could contribute to adverse impacts to navigation. The
proposed configuration will allow EPA to ensure that disposal of
dredged material into the Sites will be managed so that as much
material as possible is retained in the active littoral drift area to
augment shoreline building processes.
The coordinates for the two Umpqua River ODMD Sites, as proposed
today, are, in North American Datum 83 (NAD 83):
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Proposed North Umpqua ODMD Site Proposed South Umpqua ODMD Site
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43[deg] 41' 23.09'' N, 124[deg] 14' 43[deg] 39' 32.31'' N, 124[deg] 14' 35.60'' W.
20.28'' W.
43[deg] 41' 25.86'' N, 124[deg] 12' 43[deg] 39' 35.23'' N, 124[deg] 13' 11.01'' W.
54.61'' W.
43[deg] 40' 43.62'' N, 124[deg] 14' 43[deg] 38' 53.08'' N, 124[deg] 14' 32.94'' W.
17.85'' W.
43[deg] 40' 46.37'' N, 124[deg] 12' 43[deg] 38' 55.82'' N, 124[deg] 13' 08.36'' W.
52.74'' W.
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The two proposed Sites are situated in approximately 30 to 120 feet
of water located to the north and south of the entrance to the Umpqua
River on the southern Oregon Coast (see Figure 1). The recommended
dimensions of each of the proposed ocean disposal sites are 6,300 by
4,000 feet. Each disposal site will contain a drop zone, defined by a
500-foot setback inscribed within all sides of the site boundary,
reducing the permissible disposal area to a zone 5,300 feet long by
3,000 feet wide. The drop zone will ensure that dredged material
initially stays within each Site. Limited onshore transport of material
disposed of at the proposed Sites is expected because of the nature of
the prevailing currents and wave transport in the vicinity of the
Sites. Net predicted material transport at the proposed Sites is
southward in the summer months and northward during the remainder of
the year. These transport mechanisms are expected to move material into
the active littoral drift area and to significantly decrease or
eliminate mounding as an issue for disposal of dredged material near
the mouth of the Umpqua River.
BILLING CODE 6560-50-P
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[GRAPHIC] [TIFF OMITTED] TP25NO08.000
BILLING CODE 6560-50-C
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c. Management and Monitoring of the Proposed Sites
The proposed Umpqua River ODMD Sites are expected to receive
sediments dredged by the Corps to maintain the federally authorized
navigation project at the Umpqua River, Oregon and dredged material
from other persons who have obtained a permit for the disposal of
dredged material at the Sites. There are no existing Corps permits
issued to other entities for use of the 103-Selected site (the Adjusted
Site); therefore no permit modifications are required as a result of
this action. All persons using the Sites are required to follow the
Site Management and Monitoring Plan (SMMP) for the Umpqua River ODMD
Sites. The SMMP is available as a draft document for review and comment
by the public as of today's action proposing the designation of the
Umpqua River ODMD Sites. The draft SMMP includes management and
monitoring requirements to ensure that dredged materials disposed at
the Sites are suitable for disposal, addresses management of the Sites
to ensure mounding does not occur, and addresses the timing of disposal
events to minimize interference with other uses of ocean waters in the
vicinity of the proposed Sites.
d. MPRSA Criteria
In proposing to designate the Umpqua River ODMD Sites, EPA assessed
the proposed action against the criteria of the MPRSA, with particular
emphasis on the general and specific regulatory criteria of 40 CFR Part
228, to determine if designation of the proposed sites satisfies those
criteria.
General Criteria (40 CFR 228.5)
(1) 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 assessment of information available at the time of this
proposed rule included a review of the potential for interference with
navigation, recreation, shellfisheries, aquatic resources, commercial
fisheries, protected geologic features, and cultural and/or
historically significant areas. The proposed Sites are located away
from the approach to the Umpqua River entrance channel and are unlikely
to cause interference with navigation near the mouth of the Umpqua
River. Commercial crab and salmon fishing have the potential to take
place in the proposed Sites because of overlapping disposal and fishing
seasons, but conflicts are not anticipated based on past history of
fishing and disposal operations. Other recreational users, for example,
surfers, boarders, and divers, may use the near-shore area in the
vicinity of the proposed Sites. These recreationists are not expected
to generate heavy recreational navigation use with the potential to
conflict with disposal operations at the proposed South Site.
(2) 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 undetectable contaminant concentrations or effects before reaching
any beach, shoreline, marine sanctuary, or known geographically limited
fishery or shellfishery (40 CFR 228.5(b)).
Based on EPA's review of modeling, monitoring data, analysis of
sediment quality, and history of use, no detectable contaminant
concentrations or water quality effects, e.g., suspended solids, would
be expected to reach any beach, shoreline, or other area outside of the
proposed Sites. All dredged material proposed for disposal will be
evaluated according to 40 CFR 227.13 and only suitable material can be
disposed of at the site. Modeling work performed by the Corps
demonstrates that water column turbidity would be expected to dissipate
for an anticipated 97% of the coarser material within a few minutes of
disposal, while the remaining 3% of the material, which would be
classified as fine-grained, would be expected to dissipate within a
half hour. Over time, some of the suitable disposed material would be
expected to migrate into the littoral system, and potentially to
coastal shorelines. Bottom movement of material, based on historic
trends near the mouth of the Umpqua River, is expected to show a net
movement to the north at the depth of the disposal sites with rapid
dispersion after movement.
(3) If Site designation studies show that any interim disposal
sites do not meet the site selection criteria, use of such sites shall
be terminated as soon as any alternate site can be designated (40 CFR
228.5(c)).
Use of the Interim Site near the proposed Umpqua River Sites was
terminated upon selection of the 103-selected site, the Adjusted Site,
by the Corps. Use of the Adjusted Site terminated at the end of the
2008 dredging season. There are no selected or designated sites
remaining near the mouth of the Umpqua River. The designation of the
proposed Sites is necessary because no location for the disposal of
dredged material exists in the vicinity of the proposed Sites at this
time.
(4) 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 sized the proposed Sites to meet this criterion. The proposed
Sites tend to be moderately dispersive in the near-shore area and less
dispersive farther from shore. The Sites were designed to be large
enough to minimize the potential for adverse mounding and to allow for
a minimum twenty-year capacity. Effective monitoring of the proposed
Sites is necessary and annual bathymetric surveys are anticipated for
each Site. Those surveys are expected to be used to document the fate
of the dredged material disposed at the Sites and to provide
information for active management of the Sites.
(5) EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites where
historical disposal has occurred (40 CFR 228.5(e)).
The proposed Sites would be located near where historic disposal
has occurred with only minimal impact to the environment. Locations off
the continental shelf in the Pacific Ocean as a general rule are
inhabited by stable benthic and pelagic ecosystems on steeper gradients
that are not well adapted to the type of frequent disturbance events
that would occur if disposal of dredged material took place. Monitoring
and surveillance of a site located beyond the edge of the continental
shelf would be challenging and would present safety concerns for crew
transporting the material to be disposed and monitoring the site. In
addition, dredged material disposed at a location beyond the
continental shelf would not be available to the littoral system. The
loss of material would potentially have a negative impact the mass
balance of the system with a resulting negative impact on erosion/
accretion patterns along this limited area of coastline near the Umpqua
River.
Specific Criteria (40 CFR 228.6)
(1) Geographical Position, Depth of Water, Bottom Topography and
Distance from Coast (40 CFR 228.6(a)(1)).
Based on the data available at the time of this proposal, the
geographical position, including the depth of the
[[Page 71579]]
proposed Sites, bottom topography, and distance from the coastline in
the vicinity of the proposed Sites, will not cause adverse effects to
the marine environment. Based on EPA's understanding of the currents at
the proposed Sites and their influence on the movement of material in
the area, there is a high likelihood that much of the material disposed
at the Sites will be transported to the littoral system. This movement
is expected to allow for long-term disposal without creation of adverse
mounding conditions at either of the proposed Sites.
To help avoid adverse mounding at either of the proposed Sites, the
site management strategy will include placing the majority of dredged
material in shallower portions of the Sites closer to shore, where the
material can quickly return to the regional littoral sediment system.
Disposal runs will be managed to avoid multiple dumps in any location
to further minimize mounding. Management is likely to include
establishing ``cells'' along the nearshore boundary and assigning
numbers of ``dumps'' to each cell to minimize material accumulation and
avoid excessive or persistent mounding. Disposal will also be offset
between the two proposed Sites to allow for maximum dispersal of
material and minimal impact to each Site. In the shallower portion of
the Sites, it is anticipated that disposal would still lead to the
formation of temporary mounds on the bottom. Material placed in the
deeper portions of the Sites (the outer, or seaward third) is expected
to remain within Site boundaries for a longer time (a few years
depending on depth and storm events) and could form more persistent,
but still temporary, features.
(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 proposed Sites are not located in exclusive breeding, spawning,
nursery or feeding areas for adult or juvenile phases of living
resources. Many near-shore pelagic organisms are found in the water
column over the proposed Sites, but these organisms are found in the
water column off most of the Pacific coast and are not unique to the
proposed Sites. Benthic fauna common to near-shore, sandy, wave-
influenced regions that are found along the Pacific coast are also
found at the proposed Sites, and are generally well-suited to survive
in this dynamic environment and have been found to adapt well to
natural and human perturbations. Benthic communities are expected to
rapidly recolonize in the event of burying after disposal. Near the
proposed Sites, a variety of pelagic and demersal fish species, as well
as shellfish, are found. Anadromous salmonids are found at all seasons
in the near-shore area off the mouth of the Umpqua River. Seals and sea
lions also inhabit the lower Umpqua River and coastal area. Habitat in
the near-shore area and shoreline of the Umpqua River entrance channel
supports a variety of avian species. Whales and sea turtles are present
seasonally offshore of the coastline in this area, but are generally
observed further offshore than the proposed Sites. Modeling of the
water column over the proposed Sites indicates that turbidity from a
disposal event would be expected to dissipate rapidly and that
avoidance behavior by any species in the proposed Sites, or in the
surrounding area, at the time of a disposal event would be short-term.
(3) Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3)).
The proposed Sites, although located in close proximity to the
Umpqua River navigation channel, are located a sufficient distance
offshore to avoid adverse impacts to beaches and other amenity areas.
The local beaches support tourism, and recreational and commercial
fishing. Transportation of dredges or barges to and from the proposed
Sites to dispose of dredged material is expected to be coordinated so
as to avoid disturbance of other activities near the Umpqua River
entrance channel. Dredged material disposed of at the proposed Sites is
expected to disperse into the littoral system, with a possible positive
effect over time of reducing erosion of coastal beaches. The proposed
North ODMD Site is 3,100 feet from the north jetty and 3,000 feet from
the nearest beach. The proposed South ODMD Site is 2,400 feet from the
south jetty and 2,100 feet from the nearest beach. There are no rocks
or pinnacles in the vicinity of either site. The Oregon Dunes National
Recreation Area, a part of the Siuslaw National Forest, is located on
the beach adjacent to the proposed South ODMD Site, but does not extend
into the water. The dunes in the Recreation Area are used for off-
highway vehicle use, hiking, photography, fishing, canoeing, horseback
riding and camping. Use of the proposed South ODMD Site is not expected
to interfere with any of those upland uses.
The ocean area north and south of the south jetty is utilized for
wave-dependent near shore recreation, such as surfing, diving,
kayaking, boogie-boarding, skim boarding, and body surfing. It is
possible that some of these uses may overlap with the proposed Sites,
resulting in temporary usage conflict during disposal activities. The
proposed Umpqua River ODMD Sites were sized and located in order to
provide long-term capacity for the disposal of dredged material without
causing any impacts to the wave environment at, or near, the proposed
Sites. Site monitoring and adaptive management, as described the draft
SMMP, will address possible future mounding. The use of the proposed
Sites is not expected to change the wave conditions for any of the
recreational uses referenced above.
(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 228.6(a)(4)).
Dredged material found suitable for ocean disposal pursuant to the
regulatory criteria for dredged material or characterized by chemical
and biological testing and found suitable for disposal into ocean
waters will be the only material allowed to be disposed of at the
proposed Sites. No material defined as ``waste'' under the MPRSA will
be allowed to be disposed of at the proposed Sites. The dredged
material expected to be disposed of at the Sites will be predominantly
marine sand, far removed from known sources of contamination. The
physical and chemical analyses of material from the Umpqua River
Navigation Channel and boat basin access channel indicate both are
suitable for open water disposal. The material from the boat basin
access channel contains a higher percentage of fines than the material
from the navigation channel, however, the material has been found
suitable for disposal at the proposed Sites.
With respect to proposed methods of releasing material at the
proposed Sites, material will be released just below the surface from
hopper dredges or dump barges. The dredges will be required to be under
power and to slowly transit the disposal location during disposal. This
method of release is expected to spread material at the Sites to
minimize mounding and to minimize impacts to the benthic community and
other species in the Sites at the time of a disposal event.
(5) Feasibility of Surveillance and Monitoring (40 CFR
228.6(a)(5)).
Monitoring and surveillance at the proposed Sites are expected to
be feasible and readily performed from small surface research vessels.
The proposed Sites are accessible for bathymetric and side-scan sonar
surveys. At a minimum, it is expected that annual bathymetric surveys
will be
[[Page 71580]]
conducted at each of the proposed Sites to confirm that no unacceptable
mounding is taking place within either Site or its immediate vicinity.
Routine monitoring is expected to concentrate on examining how the
distribution of material in the near-shore portions of the Sites is
working to minimize mounding of material and to examine how the
distribution of material augments littoral processes.
(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)).
Dispersal, horizontal transport and vertical mixing characteristics
of the area at and in the vicinity of the proposed Sites indicate that
the marine sands and fluvial gravels from the Umpqua River distribute
away from the river mouth rapidly. The beaches do not show significant
accretion or loss, suggesting the system is in equilibrium and that
littoral transport is in balance. The bottom current records suggest a
bias in transport to the north. Fine grained material tends to remain
in suspension and to experience rapid offshore transport compared to
other sediment sizes. Sediment transport of sand-sized material or
coarser tends to be moved directly as bedload but is occasionally
suspended by wave action near the seafloor.
(7) Existence and Effects of Current and Previous Discharges and
Dumping in the Area (including Cumulative Effects) (40 CFR
228.6(a)(7)).
The two Sites proposed in today's action have not been used before
for any type of disposal activity. The Interim and Adjusted Sites
experienced significant adverse mounding which decreased capacity and
suitability for designation. EPA's evaluation of historical data and
modeling conducted by the Corps concluded that past disposal operations
have not resulted in unacceptable environmental degradation. Future
disposal of dredged material is not expected to result in unacceptable
environmental degradation at the proposed Sites or in the vicinity of
the proposed Sites. Although mounding is a potential effect,
bathymetric surveys will be conducted at the proposed Sites. The draft
SMMP includes requirements, including preventative steps, for managing
the proposed Sites to address any potential mounding issues.
(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)).
Designation of the proposed Sites is not expected to interfere with
shipping, fishing, recreation or other legitimate uses of the ocean.
Disposals at the new Sites will be managed according to the SMMP to
minimize interference with other legitimate uses of the ocean through
careful timing and staggering of disposals in the near-shore portion of
the proposed Sites. Commercial and recreational fishing and commercial
navigation are the primary uses for which such timing will be needed.
No plans for mineral extraction offshore of the Umpqua River are
planned or proposed for this area. Wave-dependent near-shore
recreation, such as surfing, diving, kayaking, boogie-boarding, skim
boarding, and body surfing, may possibly overlap with the proposed
Sites, resulting in temporary usage conflict during disposal
activities. The proposed Sites will be managed to minimize such
potential conflicts. The use of the proposed Sites is not expected to
change the wave conditions for any of the recreational uses referenced
above. Two wave energy projects are in the preliminary permitting
phases near the proposed Sites. One wave energy project, referred to as
the Reedsport Wave Energy Project, is proposed for installation
approximately 5 miles north of the Umpqua River. The Reedsport Wave
Energy Project is north of the proposed North Umpqua River ODMD Site
and no conflicts between that project and the use of the North site are
expected. A second project, the Douglas County Wave and Tidal Energy
Project, is proposed to be located both in the ocean waters near the
proposed Sites and on the south jetty structure at the mouth of the
Umpqua River. Final dimensions and configuration for the Douglas County
project are not yet known, therefore, it is unknown whether the
proposed project would present any usage conflicts with the proposed
Umpqua River ODMD Sites. Project proponents for both of these wave
energy projects have received a preliminary permit and filed a notice
of intent to file a license application with FERC. Fish and shellfish
culture operations are not under consideration for the area. There are
no known areas of scientific importance in the vicinity of the proposed
Site.
(9) The Existing Water Quality and Ecology of the Sites as
Determined by Available Data or Trend Assessment of Baseline Surveys
(40 CFR 228.6(a)(9)).
EPA has not identified any adverse water quality impacts from ocean
disposal of dredged material based on water and sediment quality
analyses conducted in the study area of the proposed Sites and based on
experience with past disposals near the mouth of the Umpqua River.
Fisheries and benthic data show the ecology of the area to be that of a
mobile sand community typical of the Oregon Coast.
(10) Potentiality for the Development or Recruitment of Nuisance
Species in the Disposal Site (40 CFR 228.6(a)(10)).
Nuisance species, considered as any undesirable organism not
previously existing at a location, have not been observed at, or in the
vicinity of, the proposed Sites. Material expected to be disposed at
the proposed Sites has been classified as uncontaminated marine sands
similar to the sediment present at the Sites. Some fine-grained
material, finer than natural background, may also be disposed. While
this finer-grained material could have the potential to attract
nuisance species to the proposed Sites, no such recruitment has
occurred in the past at either the Interim or the Adjusted Site. The
draft SMMP includes specific biological monitoring requirements, which
will act to identify any nuisance species, and management requirements,
allowing EPA to direct special studies and/or operational changes to
address the issue if it arises.
(11) Existence at or in Close Proximity to the Site of any
Significant Natural or Cultural Feature of Historical Importance (40
CFR 228.6(a)(11))
No significant cultural features have been identified at, or in the
vicinity of, the proposed Sites. As discussed further below, EPA
coordinated with Oregon's State Historic Preservation Officer and with
Tribes in the vicinity of the proposed Sites to identify any cultural
features. None were identified. No shipwrecks were observed or
documented within the proposed Sites or their immediate vicinity.
e. National Environmental Policy Act (NEPA); Magnuson-Stevens Act
(MSA); Marine Mammal Protection Act (MMPA); Coastal Zone Management Act
(CZMA); Endangered Species Act (ESA); National Historic Preservation
Act (NHPA)
(1) NEPA
Section 102 of the National Environmental Policy Act of 1969, as
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires that Federal agencies
prepare an Environmental Impact Statement (EIS) for major Federal
actions significantly affecting the quality of the human environment.
NEPA does not apply to EPA designations of ocean disposal sites under
the MPRSA because the courts have exempted EPA's actions under the
MPRSA from the procedural
[[Page 71581]]
requirements of NEPA through the functional equivalence doctrine. Under
that doctrine, as EPA discussed most recently in the Agency's final
rule revising the NEPA regulations, the courts reasoned that actions
under the MPRSA are functionally equivalent to the analysis required
under NEPA because such actions are undertaken with full consideration
of environmental impacts and with opportunities for public involvement.
See 72 FR 53653, September 19, 2007. EPA has, by policy, determined
that the preparation of non-EIS NEPA documents for certain EPA
regulatory actions, including actions under the MPRSA, is appropriate.
EPA's ``Notice of Policy and Procedures for Voluntary Preparation of
NEPA Documents,'' (Voluntary NEPA Policy), 63 FR 58045, (October 29,
1998), sets out both the policy and procedures EPA uses when preparing
such environmental review documents. EPA's 2007 revisions to 40 CFR
Part 6 provided the framework EPA used to prepare the voluntary NEPA
documents for this proposed action.
EPA's primary voluntary NEPA document for designating the proposed
Sites is the Draft Umpqua River, Oregon Ocean Dredged Material Disposal
Sites Evaluation Study and Environmental Assessment, 2008 (EA), jointly
prepared by EPA and the Corps. The EA and its Technical Appendices,
which are part of the docket for today's proposed action, provide the
threshold environmental review for the proposed designation of the two
Sites. The information from the EA is used extensively, above, in the
discussion of the ocean dumping criteria. Because EPA's Voluntary NEPA
Policy does not require the preparation of an EIS for this proposed
action, the EA prepared for designating the two proposed Sites is
available for public comment and a final EA will be made available at
the time of final rulemaking. Persons interested in commenting on this
EA should do so at this time. There may not be another opportunity to
comment.
(2) MSA and MMPA
In the spring of 2008, EPA initiated consultation with the National
Marine Fisheries Service (NMFS) concerning essential fish habitat and
protected marine mammals. EPA prepared an essential fish habitat (EFH)
assessment pursuant to Section 305(b), 16 U.S.C. 1855(b), of the
Magnuson-Stevens Act, as amended (MSA), 16 U.S.C. 1801 to 1891d. NMFS
is also reviewing EPA's EFH assessment and ESA Biological Assessment
for purposes of the Marine Mammal Protection Act of 1972, as amended
(MMPA), 16 U.S.C. 1361 to 1389. Consultation under both MMPA and MSA is
still underway, but is expected to conclude before EPA takes any action
to finalize today's proposed rule. Persons interested in commenting on
this issue should do so at this time. There may not be another
opportunity to comment.
(3) CZMA
EPA initiated consultation with the state of Oregon on coastal zone
management issues in June and July of 2008. EPA prepared a consistency
determination for the Oregon Ocean and Coastal Management Program
(OCMP) to meet the requirements of the Coastal Zone Management Act, as
amended, (CZMA), 16 U.S.C. 1451 to 1465, and will submit that
determination formally to the Oregon Department of Land Conservation
and Development (DLCD) for review.
(4) ESA
EPA initiated informal consultation with NMFS and the U.S. Fish and
Wildlife Service on its action to designate the Umpqua River ODMD Sites
beginning in the spring of 2008. EPA prepared a Biological Assessment
to assess the potential effects of designating the two Umpqua River
Sites on aquatic and wildlife species to determine whether or not its
action might adversely affect species listed as endangered or
threatened and/or adversely modify or destroy their designated critical
habitat. EPA found that its action would not be likely to adversely
affect aquatic or wildlife species listed pursuant to the Endangered
Species Act, as amended (ESA), 16 U.S.C. 1531 to 1544, or the critical
habitat of such species. EPA found that site designation does not have
a direct impact on any of the identified ESA species but also found
that indirect impacts associated with reasonably foreseeable future
disposal activities had to be considered. These indirect impacts
included a short-term increase in suspended solids and turbidity in the
water column when dredged material was disposed at the new Sites and an
accumulation of material on the ocean floor when material was disposed
at the Sites. EPA concluded that while its action may affect ESA-listed
species, the action would not be likely to adversely affect ESA-listed
species or critical habitat.
The U.S. Fish and Wildlife Service (USFWS) concurred with EPA's
finding that EPA's action to designate the proposed Umpqua River ODMD
Sites would not likely adversely affect listed species or critical
habitat. Consultation with the USFWS for this proposed action is
complete. The National Marine Fisheries Service (NMFS) is still
reviewing the proposed action, but consultation with NMFS is expected
to be completed before EPA takes any action to finalize today's
proposed rule. EPA specifically requests that any comments concerning
ESA be made at this time. This may be the only opportunity for
interested persons to comment on this issue.
(5) NHPA
EPA initiated consultation with the State of Oregon's Historic
Preservation Officer (SHPO) to address National Historic Preservation
Act, as amended (NHPA), 16 U.S.C. 470 to 470a-2, which requires Federal
agencies to take into account the effect of their actions on districts,
sites, buildings, structures, or objects, included in, or eligible for
inclusion in the National Register. EPA determined that no historic
properties were affected, or would be affected, by the proposed
designation of the Sites. EPA did not find any historic properties
within the geographic area of the proposed Sites. This determination
was based on an extensive review of the National Register of Historic
Districts in Oregon, the Oregon National Register list and an
assessment of cultural resources near the proposed Sites. Side scan
sonar of the proposed Sites did not reveal the presence of any
shipwrecks or other cultural or historic properties. This consultation
is expected to be completed before EPA takes any action to finalize
today's proposed rule. EPA specifically requests that any comments
concerning NHPA be made at this time. This may be the only opportunity
for interested persons to comment on this issue.
3. Statutory and Executive Order Reviews
This rule proposes to designate two ocean dredged material disposal
sites pursuant to Section 102 of the MPRSA. This rule complies with
applicable executive orders and statutory provisions as follows:
(1) Executive Order 12866
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 Executive Order defines ``significant regulatory
action'' as one that is likely to result in a rule that may: (1) 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,
[[Page 71582]]
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities; (2)
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs, or the
rights and obligations of recipients thereof; or (4) 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 rule is not a ``significant regulatory
action'' under the terms of Executive Order 12866 and is therefore not
subject to OMB review.
(2) Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., because this proposed rule does not establish or modify
any information or recordkeeping requirements for the regulated
community and only seeks to authorize the pre-existing requirements
under State law and imposes no additional requirements beyond those
imposed by State law.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing, and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in Title 40 of the CFR are listed in 40 CFR Part 9.
(3) Regulatory Flexibility
The Regulatory Flexibility Act (RFA), generally requires Federal
agencies 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. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business defined by
the Small Business Administration's size regulations at 13 CFR 121.201;
(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 economic impact on small entities because the
proposed rule will only have the effect of regulating the location of
sites to be used for the disposal of dredged material in ocean waters.
After considering the economic impacts of today's rule, I certify that
this action will not have a significant economic impact on a
substantial number of small entities. EPA continues to be interested in
the potential impacts of the proposed rule on small entities and
welcomes comments on issues related to such impacts.
(4) Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C.
1531 to 1538, for state, local, or tribal governments or the private
sector. This action imposes no new enforceable duty on any State,
local, or tribal governments or the private sector. Therefore, this
action is not subject to the requirements of sections 202 or 205 of the
UMRA. This action is also not subject to the requirements of section
203 of the UMRA because it contains no regulatory requirements that
might significantly or uniquely affect small government entities. Those
entities are already subject to existing permitting requirements for
the disposal of dredged material in ocean waters.
(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'' is 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 various levels of government.'' This 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 various levels of government, as specified in
Executive Order 13132. This rule proposes to designate two sites for
the disposal of dredged material in ocean waters. Thus, Executive Order
13132 does not apply to this rule. In the spirit of Executive Order
13132, and consistent with 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
This proposed rule does not have tribal implications, as specified
in Executive Order 13175 because the designation of the two dredged
material disposal Sites will not have a direct effect on Indian Tribes,
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. Thus, Executive Order 13175 does
not apply to this rule. Although Executive Order 13175 does not apply
to this proposed rule, EPA consulted with tribal officials in the
development of this rule, particularly as the proposed rule relates to
potential impacts to historic or cultural resources. EPA specifically
solicits additional comment on this proposed rule from tribal
officials.
(7) Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks. The proposed action concerns the designation of two Sites
and would only have the effect of providing designated locations to use
for ocean disposal of
[[Page 71583]]
dredged material pursuant to section 102(c) of the MPRSA.
(8) Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action 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'' as defined under Executive Order
12866.
(9) National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do 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. The proposed
action includes environmental monitoring and measurement as described
in EPA's draft SMMP. EPA will not require the use of specific,
prescribed analytic methods for monitoring and managing the proposed
Sites once designated. Rather, the Agency plans to allow the use of any
method, whether it constitutes a voluntary consensus standard or not,
that meets the monitoring and measurement criteria discussed in the
SMMP. EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
(10) Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. EPA has determined that this proposed
rule will not have disproportionately high and adverse human health or
environmental effects on minority or low-income populations because it
does not affect the level of protection provided to human health or the
environment. EPA has assessed the overall protectiveness of designating
the proposed disposal Sites against the criteria established pursuant
to the MPRSA to ensure that any adverse impact on the environment will
be mitigated to the greatest extent practicable.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Authority: This action is issued under the authority of Section
102 of the Marine Protection, Research, and Sanctuaries Act, as
amended, 33 U.S.C. 1401, 1411, 1412.
Dated: November 14, 2008.
Elin D. Miller,
Regional Administrator, Region 10.
PART 228--[AMENDED]
For the reasons set out in the preamble, Chapter I of title 40 is
proposed to be amended as set forth below:
1. The authority citation for part 228 continues to read as
follows:
Authority: 33 U.S.C. 1412 and 1418
2. Section 228.15 is amended by adding paragraph (n)(7) to read as
follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(n) * * *
(7) Umpqua River, OR--North and South Dredged Material Disposal
Sites.
(i) North Umpqua River Site.
(A) Location: 43[deg]41'23.09'' N, 124[deg]14''20.28'' W;
43[deg]41'25.86'' N, 124[deg]12'54.61'' W; 43[deg]40'43.62'' N,
124[deg]14'17.85'' W; 43[deg]40'46.37'' N, 124[deg]12'52.74'' W.
(B) Size: Approximately 1.92 kilometers long and 1.22 kilometers
wide, with a drop zone which is defined as a 500-foot setback inscribed
within all sides of the site boundary, reducing the permissible
disposal area to a zone 5,300 feet long by 3,000 feet wide.
(C) Depth: Ranges from approximately 9 to 37 meters
(D) Primary Use: Dredged material
(E) Period of Use: Continuing Use
(F) Restrictions: (1) Disposal shall be limited to dredged material
determined to be suitable for ocean disposal according to 40 CFR
227.13, from the Umpqua River navigation channel and adjacent areas;
(2) Disposal shall be managed by the restrictions and requirements
contained in the currently-approved Site Management and Monitoring Plan
(SMMP);
(3) Monitoring, as specified in the SMMP, is required.
(ii) South Umpqua River Site
(A) Location: 43[deg]39'32.31'' N, 124[deg]14'35.60'' W;
43[deg]39'35.23'' N, 124[deg]13'11.01'' W; 43[deg]38'53.08'' N,
124[deg]14'32.94'' W; 43[deg]38'55.82'' N, 124[deg]13'08.36'' W.
(B) Size: Approximately 1.92 kilometers long and 1.22 kilometers
wide, with a drop zone which is defined as a 500-foot setback inscribed
within all sides of the site boundary, reducing the permissible
disposal area to a zone 5,300 feet long by 3,000 feet wide.
(C) Depth: Ranges from approximately 9 to 37 meters
(D) Primary Use: Dredged material
(E) Period of Use: Continuing Use
(F) Restrictions: (1) Disposal shall be limited to dredged material
determined to be suitable for ocean disposal according to 40 CFR
227.13, from the Umpqua River navigation channel and adjacent areas;
(2) Disposal shall be managed by the restrictions and requirements
contained in the currently-approved Site Management and Monitoring Plan
(SMMP);
(3) Monitoring, as specified in the SMMP, is required.
* * * * *
[FR Doc. E8-27967 Filed 11-24-08; 8:45 am]
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