[Federal Register Volume 70, Number 40 (Wednesday, March 2, 2005)]
[Rules and Regulations]
[Pages 10041-10057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-4002]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-7877-9]
Ocean Dumping; De-designation of Ocean Dredged Material Disposal
Sites and Designation of New Sites
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing its
proposal to de-designate four existing ocean dredged material disposal
sites located off of the mouth of the Columbia River near the states of
Oregon and Washington and to designate two new sites, the Shallow Water
site (SWS) and the Deep Water site (DWS). The new sites are needed for
long-term use by authorized Columbia River navigation projects and may
be available for use by others meeting the criteria for ocean disposal
of dredged material. EPA published its proposal to designate the two
new ocean disposal sites and to de-designate the four existing ocean
disposal sites in the Federal Register on March 11, 2003 (68 FR 11488).
The de-designation of existing sites is necessary to discontinue their
use where the impact of disposal has resulted in changed and adverse
site conditions. The newly designated sites are necessary for current
and future dredged material ocean disposal needs and will be subject to
ongoing monitoring and management to ensure continued protection of the
marine environment from adverse effects to the greatest extent
practicable.
DATES: Effective Date: This final site designation and de-designation
becomes effective on April 1, 2005.
ADDRESSES: The administrative record for this final action is available
for inspection at the Region 10 Library, 10th Floor, 1200 Sixth Avenue,
Seattle, Washington 98101. For access to the administrative record,
contact the Region 10 Library Reference Desk at (206) 553-1289, between
9 a.m. and 4 p.m., Monday through Friday, excluding legal holidays, for
an appointment. The EPA public information regulations (40 CFR part 2)
provide that a reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: John Malek, Ocean Dumping Coordinator,
U.S. Environmental Protection Agency, Region 10 (ETPA-083), 1200 Sixth
Avenue, Seattle, WA 98101-1128, telephone (206) 553-1286, e-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
1. Regulated Entities
Entities potentially affected by this 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, 33 U.S.C. 1401 to 1445, (MPRSA). The
action would be relevant to entities, including the U.S. Army Corps of
Engineers (Corps), seeking to dispose of dredged materials in ocean
waters off the mouth of the Columbia River near the states of Oregon
and Washington. Potentially affected categories and entities 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, Regulatory
Program, 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.
----------------------------------------------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. For any questions regarding the applicability of this action to
a particular entity, please consult the person listed in the section of
this action titled FOR FURTHER INFORMATION CONTACT.
2. Background
The EPA published a proposal in the Federal Register on March 11,
2003, (68 FR 11488), to de-designate four ocean dredged material
disposal sites and to designate two new ocean dredged material disposal
sites under Section 102(c) of the MPRSA and its implementing
regulations at 40 CFR subchapter H. Under the MPRSA, the Administrator
of EPA has the authority, which is delegated to the Regional
Administrator of the Region in which the sites are located, to
designate sites where ocean disposal may be permitted. The sites that
are designated in today's action and the sites that are de-designated
in today's action are located near the mouth of the Columbia River,
within Region 10. Figure 1 displays the de-designated sites. Figure 2
displays the newly designated sites. [Figures 1 and 2 are attached at
the end of this document.]
The proposed designations and de-designations were accompanied by a
joint EPA and Corps ``Integrated Feasibility Report and Environmental
Impact Statement for Channel Improvements,'' August 1999 (1999 IFR/
[[Page 10042]]
EIS), and a ``Supplemental Integrated Feasibility Report and
Environmental Impact Statement,'' January 28, 2003 (SEIS), consistent
with EPA's voluntary Environmental Impact Statement (EIS) policy (63 FR
58054, October 29, 1998). These documents incorporated a Biological
Assessment as submitted to the National Marine Fisheries Service
(NMFS), now known as NOAA Fisheries, pursuant to Section 7 of the
Endangered Species Act (ESA) (16 U.S.C. 1536). The proposal was also
accompanied by an Essential Fish Habitat (EFH) evaluation jointly
prepared by EPA and the Corps and submitted to NOAA Fisheries pursuant
to the Magnuson-Stevens Fishery Conservation and Management Act, 16
U.S.C. 1801, et seq., as amended (MSA). A draft Site Management and
Monitoring Plan (SMMP) was prepared as required by section 102(c)(3) of
the MPRSA and was made available for review and comment at the time EPA
published the proposal in the Federal Register. The draft SMMP has been
finalized. The ``Public Comment'' section of this action discusses
changes made to this document. Copies of the Final SMMP are available
from EPA and the Corps Portland District. To obtain copies contact the
individual listed in the section of this action titled FOR FURTHER
INFORMATION CONTACT.
The sites proposed for de-designation were sites A, B, E and F as
currently codified at 40 CFR 228.15(n)(6), (7), (8) and (9). Sites A, B
and F, designated in 1986, experienced adverse mounding after many
years of disposal use. In 1993 and again in 1997, EPA and the Corps
temporarily expanded the sites and changed the disposal patterns. These
efforts were intended to provide short-term capacity while studies were
conducted by the EPA and Corps to develop a long-term solution. Formal
designation of the expanded sites was considered but found not to be a
solution for the long term because of increased mounding at the sites
and the use of these sites was curtailed. The past disposal activities
at these sites place them in Impact Category II in EPA's evaluation of
disposal impacts. See 40 CFR 228.10(c)(2). These sites are de-
designated in today's action. With respect to Site E, disposal impacts
at the site indicate Site E is under-sized for the dispersive
conditions experienced at the site. Site E is de-designated in today's
action based on this assessment.
Two sites were proposed for designation in EPA's proposed action.
These sites are the Shallow Water Site (SWS), a near-shore dispersive
site, and the Deep Water Site (DWS), a deep-water, off-shore, non-
dispersive site. These sites were assessed against the statutory and
regulatory criteria for ocean site designations. EPA's evaluation of
the SWS and DWS against the designation criteria was presented in the
1999 IFR/EIS, Appendix H, and in the SEIS. Both sites meet the general
criteria for designation.
The proposed SWS and the DWS were also assessed against the
specific criteria for ocean site designations at 40 CFR 228.6. The
specific criteria include: geographical position; location relative to
breeding, spawning, nursery, feeding or passage areas for adult and
juvenile phases for living resources; location relative to beaches and
other amenity areas; types and quantities of waste to be disposed of
and proposed methods of release, feasibility of surveillance and
monitoring; dispersal, horizontal transport and vertical mixing
characteristics of the area to be designated including prevailing
current direction and velocity; existence and effects of current and
previous discharges and dumping in the area; interference with
shipping, fishing, recreation, mineral extraction, desalination, fish
and shellfish culture, areas of special scientific importance, and
other legitimate uses of the ocean; existing water quality and ecology
of the site as determined by available data or by trend assessment or
baseline survey; potentiality for the development or recruitment of
nuisance species in the disposal site; and proximity to significant
natural or cultural features of historical significance. EPA's
consideration of the specific criteria for site selection was presented
in the 1999 IFR/EIS, Appendix H, and in the SEIS. As considered against
the specific criteria, the SWS and the DWS mitigate adverse impact on
the environment to the greatest extent practicable.
Today's final action is also supported by several reports that were
finalized during or after publication of the proposed designations and
de-designations. These include: ``Environmental Studies at Proposed
Ocean Disposal Sites off the Mouth of the Columbia River,'' prepared by
MEC Analytical Systems, Inc. and Science Applications International
Corporation (SAIC), June 2003 (Biological Baseline Study); ``Mouth of
the Columbia River Shallow Water Ocean Dredged Material Disposal Site
Supplemental Evaluation of Optimized Site Utilization and Assessment of
Potential Wave-Related Impacts,'' prepared by the Corps, March 2003
(MCR Optimized Site Utilization Report); ``Estimated Entrainment of
Dungeness Crab During Maintenance Dredging of the Mouth of the Columbia
River, Summer 2002,'' prepared by Pearson and Skalski, March 2003 (Crab
Entrainment Study); and ``Comparison of the Sampling Efficiency of
Three Benthic Trawls At the Deep Water Site off the Mouth of the
Columbia River,'' (Trawl Comparison Study) prepared by MEC Analytical
Systems, Inc., Weston Solutions, Inc. and Science Applications
International Corporation, April 2004. EPA considered the data used in
the preparation of these reports. The data and the reports themselves
confirm EPA's conclusions at the time of the proposal concerning the
biology and capacity at the sites proposed.
The Ocean Dumping Regulations at 40 CFR 228.11 govern the
withdrawal of designated sites from use by promulgation of an amendment
to the disposal site designations. EPA may withdraw designated sites
from use based on an evaluation of disposal impacts or changed
circumstances concerning the use of the sites.
EPA finds that the de-designation of sites A, B, and F is necessary
based on changed circumstances at the sites. Continued disposal at the
sites could result in further formation of mounds that would eventually
contribute to adverse wave conditions and resultant navigation
concerns. The past activities at sites A, B and F placed these sites in
Category II impacts (40 CFR 228.10(c)(2)). The sites cannot be modified
or expanded without causing conflicts with marine traffic and in their
current state they are subject to adverse wave conditions.
The de-designation of site E is based on the need to modify and
reconfigure the site. Reconfiguration of the site will allow dredged
material disposed at the site to naturally disperse into the littoral
zone during the dredging season without the creation of mounding
conditions that could contribute to adverse wave conditions at the
site.
The proposed action (68 FR 11488) provided an analysis of the EPA's
compliance with the site designation criteria of Section 102 of the
MPRSA and with 40 CFR part 228. This final action promulgates, without
change from the proposal, the amendment of 40 CFR 228.15(n) to de-
designate sites A, B and F. The coordinates (North American Datum 1983;
NAD 83) of the three EPA-designated sites which this final action de-
designates are as follows:
Site A
Corner Coordinates
46[deg]13'03'' N, 124[deg]06'17'' W.
46[deg]12'50'' N, 124[deg]05'55'' W.
46[deg]12'13'' N, 124[deg]06'43'' W.
46[deg]12'26'' N, 124[deg]07'05'' W.
[[Page 10043]]
Site B
Corner Coordinates
46[deg]14'37'' N, 124[deg]10'34'' W.
46[deg]13'53'' N, 124[deg]10'01'' W.
46[deg]13'43'' N, 124[deg]10'26'' W.
46[deg]14'28'' N, 124[deg]10'59'' W.
Site F
Corner Coordinates
46[deg]12'12'' N, 124[deg]09'00'' W.
46[deg]12'00'' N, 124[deg]08'42'' W.
46[deg]11'48'' N, 124[deg]09'00'' W.
46[deg]12'00'' N, 124[deg]09'18'' W.
The coordinates (NAD 83) of Site E (original Site E) which this
final action de-designates through reconfiguration are as follows:
Site E
Corner Coordinates
46[deg]15'43'' N, 124[deg]05'21'' W.
46[deg]15'36'' N, 124[deg]05'11'' W.
46[deg]15'11'' N, 124[deg]05'53'' W.
46[deg]15'18'' N, 124[deg]06'03'' W.
This action finalizes the designation of the SWS without change
from the proposal. The SWS incorporates the footprints of the original
Site E and the Corps-selected 103 expanded Site E. It is configured so
that the new site is large enough to allow for the temporary storage of
placed material as it is naturally dispersed into the littoral zone
during the disposal season avoiding the creation of conditions that
could interfere with navigation safety. The coordinates for the newly
designated sites utilize ``decimal seconds.'' The old coordinates just
used ``seconds'' and were slightly less precise. The coordinates (NAD
83) of the newly designated SWS, consisting of a disposal site with
defined placement area and drop zone, are as follows:
Shallow Water Placement Area and Disposal Site
Corner Coordinates
46[deg]15'31.64 N, 124[deg]05'09.72 W.
46[deg]14'17.66 N, 124[deg]07'14.54 W.
46[deg]15'02.87 N, 124[deg]08'11.47 W.
46[deg]15'52.77 N, 124[deg]05'42.92 W.
Dimensions
3,100 to 5,600 feet wide by 11,500 feet long. Azimuth (long axis):
229[deg]T, Depth 45 feet to 75 feet, No Buffer.
Shallow Water Drop Zone
Corner Coordinates
46[deg]15'35.36 N, 124[deg]05'15.55 W.
46[deg]14'31.07 N, 124[deg]07'03.25 W.
46[deg]14'58.83 N, 124[deg]07'36.89 W.
46[deg]15'42.38 N, 124[deg]05'26.65 W.
Dimensions
1,054 feet wide to 3,600 feet wide by 10,000. Azimuth (long axis):
229[deg]T, Depth 45 feet to 75 feet.
This action also finalizes the designation of the DWS without
change from the proposal. The designation of this site is necessary to
provide sufficient capacity for the disposal of dredged materials to
meet current and anticipated future ocean disposal needs at the mouth
of the Columbia River. The coordinates (NAD 83) of the newly designated
DWS, consisting of a disposal site (including buffer and placement
area), are as follows:
Deep Water Disposal Site (Including Buffer)
Corner Coordinates
46[deg]11'03.03 N, 124[deg]10'01.30 W.
46[deg]13'09.78 N, 124[deg]12'39.67 W.
46[deg]10'40.88 N, 124[deg]16'46.48 W.
46[deg]08'34.22 N, 124[deg]14'08.07 W.
Dimensions
17,000 feet wide by 23,000 feet long. Depth 190 feet to 300 feet,
Buffer 3,000 feet wide.
Deep Water Placement Area
Corner Coordinates
46[deg]11'06.00 N, 124[deg]11'05.99 W.
46[deg]12'28.01 N, 124[deg]12'48.48 W.
46[deg]10'37.96 N, 124[deg]15'50.91 W.
46[deg]09'15.99 N, 124[deg]14'08.40 W.
Dimensions
11,000 feet wide by 17,000 feet long. Depth 190 feet to 290 feet.
The de-designations are shown in Figure 1. The designations are
shown in Figure 2.
3. Public Comments
In the preamble to the proposed action, EPA requested that public
comments be submitted by no later than April 25, 2003. EPA received
approximately fifteen sets of written comments on the proposed action.
While many of the comments expressed support for EPA's proposal, the
greater number raised issues concerning the proposed designations and
de-designations. In developing the final action, EPA reviewed and
considered all the written comments. This final action addresses the
most significant of the comments received and groups EPA's responses to
similar significant comments together. EPA prepared a separate
``Response to Comments'' to respond to every comment received and
copies of the complete response to all comments may be obtained by
contacting the individual listed in the section of this action titled
FOR FURTHER INFORMATION CONTACT. The following discussion in this
section summarizes and responds to the most significant comments
received on the proposed action.
Need for Ocean Dredged Material Disposal Sites under the MPRSA--One
commenter stated that EPA must ``specifically find that there are no
practicable improvements that will reduce the adverse impacts of the
dredged materials on the total environment'' before designating an
ocean dredged material disposal site. There is no requirement that EPA
make this specific finding. Site designations are governed by the MPRSA
and its implementing regulations. The general requirements for the
designation of sites are as follows: ``The Administrator shall, in a
manner consistent with the criteria established pursuant to subsection
(a) of this section, designate sites or time periods for dumping. The
Administrator shall designate sites or time periods for dumping that
will mitigate adverse impact on the environment to the greatest extent
practicable.'' 33 U.S.C. 1412(c)(1); MPRSA 102(c)(1). Sites are to be
designated in a manner consistent with the criteria for permitting
under the Act. The factors to be considered for site designation
include the need for dumping; the effects of such dumping on human
health and welfare, on fisheries resources and on marine ecosystems;
the persistence and permanence of the effects of dumping; the volumes
and concentrations of materials dumped; the appropriate locations for
such dumping, including land-based alternatives; and the effect on
alternate uses of oceans, and utilization wherever feasible of
locations beyond the continental shelf. In assessing the need for ocean
dredged material disposal sites, EPA focused on the need for ocean
dumping and looked to factors such as relative environmental risks, and
impact and cost for ocean dumping as compared to other feasible
alternatives. EPA did not find feasible alternatives for the disposal
of the millions of cubic yards of sediment dredged annually at the
Mouth of the Columbia River. There was no practicable improvement in
process technology for such sediments and there were no suitable and
reliable estuarine, upland, flow-lane or other alternatives for near-
shore disposal or storage that did not present potentially greater
adverse environmental impacts than ocean disposal.
Zone of Siting Feasibility--One commenter questioned the
justification for the non-feasibility of designating a
[[Page 10044]]
site off of the continental shelf based on a 4.5 mile operational limit
of the Mouth of the Columbia River project. The MPRSA and its
implementing regulations express a preference for designating sites
located off of the continental shelf. See Section 102(a)(I) of the
MPRSA and 40 CFR 228.5(d). Recent oceanographic research has
demonstrated fragile and complex ecosystems in these deep ocean
environments throughout the world. In the case of the Mouth of the
Columbia River, the 1999 IFR/EIS explained that disposal of dredged
materials in an off-shelf location would likely adversely impact the
thriving, densely populated benthic and pelagic ecosystems in water
depths of 600 feet or greater. Bottom gradients off-shelf are steep,
between 5 and 25 percent on the continental slope, and accumulation of
disposal materials which are unconsolidated would be likely to result
in slumping and off-site impacts. Data from NOAA Fisheries indicate
that the nearest off-shelf area, the Astoria Canyon, located 11 miles
offshore, is unique habitat. NOAA Fisheries commented to that effect
during scoping of site designation studies and again in response to the
proposal. In looking at a zone of siting feasibility (ZSF), EPA and the
Corps considered that information and those concerns and also
considered other factors. Other factors included the authorized depth
of the river channel, the availability of dredging equipment, and
operational concerns, such as adverse weather conditions and the time
needed to dredge material and haul it to disposal sites during the
dredging season. The dredging season at the Mouth of the Columbia River
is limited to the time period from June to October because of rough
seas and adverse weather conditions that are the norm from November to
May. Siting feasibility also took into account norms for the heaviest
shoaling times at the Mouth of the Columbia River (generally July) and
the need to avoid commercial fishing use areas during periods of high
use. All of these factors contributed to the identification of the area
within an arc 4.5 nautical miles seaward from river mile -1.0 as the
extent of the location in which to seek to designate a site for
disposal of dredged materials for the Mouth of the Columbia River.
Baseline--EPA received numerous comments on EPA's baseline analysis
for the site designations. EPA fully complied with the baseline
requirements for site designation set forth in 40 CFR subchapter H,
part 228 B ``Criteria for the management of disposal sites for ocean
dumping.'' 40 CFR 228.13 ``Guidelines for ocean disposal site baseline
or trend assessment surveys under section 102 of the Act,'' provides
the following pertinent statements on baseline: ``The purpose of a
baseline or trend assessment survey is to determine the physical,
chemical, geological, and biological structure of a proposed or
existing disposal at the time of the survey. A baseline or trend
assessment survey is to be regarded as a comprehensive synoptic and
representative picture of existing conditions; each survey is to be
planned as part of a continual monitoring program through which changes
in conditions at a disposal site can be documented and assessed.''
This regulation also states: ``An initial disposal site evaluation
or designation study should provide an immediate baseline appraisal of
a particular site, but it should also be regarded as the first of a
series of studies to be continued as long as the site is used for waste
disposal.''
The baseline studies at the DWS and SWS did provide a comprehensive
synoptic and representative picture of the existing conditions at the
time the sites were proposed for designation. The baseline appraisal
monitoring is an ongoing, continuous process for the life of the site.
This ongoing process is addressed through the restrictions on the use
of each site in this designation and through the site monitoring and
management plan (SMMP). Data contributing to the baseline are contained
in the appendices to 1999 IFR/EIS, 2003 SEIS, and MEC's Biological
Baseline Study and are supplemented by the Crab Entrainment Study and
Trawl Comparison Study. EPA has met baseline data requirements for
purposes of designating both the SWS and DWS. Physical, chemical,
geological, and biological baseline surveys are considered to be
complete for both the SWS and DWS. The SMMP contains a synopsis of the
available physical and biological data. For the DWS, EPA believes that
special studies may enhance EPA's understanding of the site. The types
of special studies EPA requires are described in the final SMMP.
Special studies may lead to additional management constraints on the
use of the DWS depending on the results of such special studies.
Routine monitoring as described in the final SMMP could also lead to
additional site use constraints. The final SMMP includes monitoring and
reporting to help manage conditions at designated sites through a
continuous program of assessing changes in conditions at the sites.
Annual use planning and reporting will supplement the information
collected by EPA and the Corps through the SMMP.
Commenters expressed the opinion that the baseline biological
analysis for the DWS was flawed and that it failed to consider the DWS
as an area of importance to flatfish nurseries and crab. The commenters
contended that it's location in the shipping and ``tow lane'' makes the
DWS usable as a nursery but not as a fishery. The ``tow lane'' referred
to is the navigation route depicted on navigation charts as the route
to be used by vessels towing other vessels such as barges or ships. EPA
notes that the DWS was recommended as a potential disposal site by crab
fishermen because the site was generally not fished and was not
considered unique or special habitat as a nursery site. The biological
baseline shows that the DWS provides some nursery habitat for fish and
crab populations but establishes that the DWS is not unique or
significant nursery habitat. The biological baseline for the DWS
included a detailed assessment of living organisms and complied with
the requirement to measure the benthic biota, including a quantitative
and qualitative evaluation of benthic communities. These communities
included macroinfauna and macroepifauna, meiobenthos, and microbenthos
and an appraisal, based on existing information, of the sensitivity of
the indigenous species to the dredged sediments proposed to be disposed
at the site. In addition, trawl studies, conducted in 2003 further
assessed the fish and crab population at the DWS. Refer to the final
SMMP for the description of the baseline.
The baseline for ocean dredged material site designation as
required by the regulations is intended to present a ``snapshot'' in
time of biological conditions at the site so that changes to those
existing conditions can be monitored over time.
Site Monitoring and Management Plan (SMMP)--EPA agrees with the
recommendations from many commenters to revise the draft SMMP to
include an adaptive management strategy and further assessment of
biological impacts. The final SMMP specifies ``special studies''
intended to verify predicted material placement and mound configuration
development and biological impacts at the DWS by measuring benthic
infaunal succession, groundfish and macroinvertebrate (e.g., crab) use,
as well as assessing specific placement techniques at the mound that
will eventually be created over time at the DWS. The final SMMP has
been completed by EPA and the Corps and
[[Page 10045]]
becomes effective with this designation. The SMMP and annual use plans
will provide for periodic monitoring of the fish and crab population at
the DWS in addition to other specific information collection. The
annual use plans will be available to the public from EPA upon request.
The SMMP and annual use plans will also provide for similar management
of the SWS. The final SMMP was modified to enhance information
collection related to impact analysis, monitoring and future management
actions to sustain the aquatic environment. The information collected
will be used to re-assess the nature and severity of the impacts of
disposal at the sites and to make changes to how the sites are used, if
necessary, and to assess whether the sites need to be changed.
Some commenters expressed a preference for revising the SMMP to
change the management of the DWS to confine disposed material at the
DWS to as small an area as possible by the use of a ``pinpoint,
repetitive dump method'' with an adaptive management approach to
evaluate mound height after a single drop point at the DWS reached a
mound height of 30 to 40 feet. EPA did not revise the final SMMP to
provide for repetitive pinpoint dumping at the DWS because EPA
disagrees with the commenters on this point and favors a more minimal
impact to the ocean floor over the larger footprint of the site. EPA
does not intend to allow for a rapid creation of individual 30 to 40
foot mounds anywhere within the placement area but expects that
gradual, uniform mounding at the DWS could reach such heights over
fifty years of use or longer. Immediate mounding through repetitive
pinpoint dumping would be expected to more severely impact benthic
organisms through a rapid and dramatic change in floor height.
Spreading the disposal material more widely and causing a slow change
in ocean floor height is expected to be less disruptive to adjustment
and recolonization efforts of indigenous benthic organisms at the site.
However, the routine monitoring and special studies identified in the
final SMMP will provide more definitive information on this issue and,
if warranted, site use management will be adjusted.
With respect to monitoring the DWS, EPA expects to use the SMMP,
which addresses management and monitoring of both the SWS and the DWS,
as the basis for annual use planning and reporting by site users. As
part of the biological baseline work, four locations outside of the DWS
were identified and sampled. Under the SMMP, these locations will be
periodically revisited as part of ongoing monitoring and management of
the site. EPA expects the buffer zone at the DWS to act as a reference
site for monitoring. The four reference locations outside the DWS
boundaries provide adequate backup to the buffer. Sloughing or
spillover into the buffer is unlikely to occur until after many years
of use of the site. However, EPA has decided to include an evaluation
of the need for additional reference monitoring at any time the SMMP is
reviewed.
Columbia River Plume--EPA received several comments suggesting that
site designations near the mouth of the Columbia River would have an
impact on the Columbia River plume. The plume dynamics of the Columbia
River plume were studied during the site selection process. A
discussion in the ``Oceanographic Processes'' Sections 6 and 7 of
Exhibit B ``Physical Processes and Geological Resources'' to Appendix H
of the 1999 IFR/EIS explains that most of the dynamics of the Columbia
River plume are confined to the upper 16 feet of the water column but
can extend to a depth of 66 feet. Plume-induced currents are normally
observed at or near the plume surface and decrease with depth. In
addition to the depth-influenced limitation of the plume, there is
significant seasonal change in ocean circulation affecting the plume.
For example, the summer/fall (July to October) variation in the plume
is influenced by low discharge from the Columbia River and a southerly
circulation of the shelf waters.
Because of comments received on the proposed site designations
concerning the Columbia River plume, EPA reviewed the study by David
Jay, C. Cudaback and T. Chisholm, ``Draft Report: Evaluation of Impacts
of Maintenance Dredging at the Mouth of the Columbia River on Plume
Salinity,'' June 2004 (Plume Study). The Plume Study identified the
Columbia River Plume as a surface-advected plume and looked at the
important implications of this plume type. The Plume Study found that
``localized changes in flow depth caused by dredged material disposal
will not directly affect the plume, as long as the changes in depth
remain small relative to the total depth of the water underlying the
plume.'' Significantly, the Plume Study results suggested: ``Changes in
entrance depth [at the Mouth of the Columbia River] cannot change the
total export of freshwater to the plume. The impacts of MCR maintenance
on the plume are quite limited. Also, initial differences in the
freshwater fraction produced in the MCR area are largely preserved as
water parcels transit the plume near-field.'' Conclusions reached by
the Plume Study included the following: ``Because the plume is highly
mobile, variations in plume salinity, plume depth, and water parcel
trajectories related to changes in coastal winds and currents are far
larger than differences related to initial conditions in the MCR
region. The effects of river-flow and tidal variability are also larger
than those of MCR depth variability.'' And: ``Regardless of plume
orientation (and dredging cycle), a continuum of salinities exists
within a relatively small area between low initial plume salinities and
ocean salinities, which vary only modestly with winds and currents.''
(Plume Study)
Based on available data concerning the Columbia River plume
environment, EPA does not expect the designation and use of the DWS or
SWS to adversely impact the plume environment. Placement of dredged
material within the SWS is not expected to affect circulation of the
Columbia River plume within or outside of the site boundaries. Dredged
material in the SWS will be spread over the site and limited in height.
Dredged material placed in the SWS is expected to be dispersed within
1-3 years, depending upon the volume placed per year and the flow from
the Columbia River.
A vertical accumulation of 4-6 feet of dredged material within a
water depth of 45-65 feet will affect less than 10 percent of the water
column. This is not expected to modify currents influencing the
Columbia River plume.
The Deep Water Site is designated on the floor of the mid-
continental shelf where water depths vary between 200 and 300 feet. At
the top of the water column in the vicinity of the DWS, the surface
water from the Columbia River plume is significantly modified by
ambient coastal water. At the seafloor and at depth, these surface
influences are not experienced although bottom currents are present.
Over time, the size of the mound that may result from accumulated
dredged material disposed at the DWS (expected to be in the range of
20-40 feet high after many years of use) creates a potential for ocean
bottom currents at the DWS to be slightly affected by the deposition of
dredged material. Since some portion of the mixing zone for the plume
of the Columbia River passes over the DWS, but is expected to remain
separated vertically from the highest anticipated elevation of the DWS
by at least 100 feet at all times, any change in circulation at the DWS
is unlikely to affect the distribution of the Columbia River plume. The
plume remains an area of interest and EPA and the Corps intend
[[Page 10046]]
to continue to assess the effects, if any, of maintenance of the Mouth
of the Columbia River and lower Columbia River channel projects on the
plume dynamics.
Sediment Re-suspension and Transport--A commenter questioned
whether sediment placed at the DWS remained immobile and questioned
whether any movement of sediment might compromise use of the buffer as
a reference area. Evaluation of sediment movement in the 1999 IFR/EIS
and MCR Optimized Site Utilization Report for the MCR area provided
strong evidence that bottom sediment movement is limited on the ocean
floor at the DWS and would be unlikely to compromise the buffer as a
reference area. However, EPA agrees with the recommendation to assess
the movement of sediments at the DWS and has included this element in
the SMMP. EPA intends to use the routine site management and
monitoring, as described in the final SMMP, to assess potential
remobilization of sediments placed at the DWS. The buffer zone at the
DWS is an area within the designated boundaries to ensure that the
sediment mass remains within the designated site boundaries. Because
the buffer zone at the DWS will not be impacted immediately by the
placement of dredged material, the buffer zone is considered a suitable
reference area for monitoring potential remobilization for the
foreseeable future. If routine monitoring reveals unanticipated changes
to the sediment regime of the buffer zone, a more focused special study
could be required. As part of the biological baseline work, four
locations outside of the DWS were identified and sampled. These
locations will be periodically revisited as part of routine monitoring.
EPA expects the buffer zone at the DWS to act as a reference site for
monitoring with the four reference locations outside the DWS boundaries
providing adequate backup.
Timing on Use of Sites--Commenters suggested that the time of year
designated sites were used might be relevant to various fish life
cycles given potential turbidity increases at the time of disposal. One
commenter suggested that public notice and an opportunity for comment
be allowed prior to disposal. EPA responds that public notice is
required before sites can be used. The statute and regulations, as well
as the procedural requirements the Corps follows to meet the
substantive requirements for site use, all require public notice. EPA
anticipates that the primary user of the DWS and SWS will be the Corps.
For non-Corps use, ocean dumping cannot occur unless a permit is issued
under the MPRSA. In the case of dredged material, the decision to issue
a permit is made by the Corps Regulatory Program using EPA's
environmental criteria and subject to EPA's concurrence. While the
Civil Works and Operations Programs of the Corps do not issue
themselves ``permits,'' Section 103(c) of the MPRSA requires that Corps
projects apply the same criteria, factors to be evaluated, procedures,
and requirements that apply to the issuance of permits. The Corps
already has an established and comprehensive public involvement process
in place for its Civil Works, maintenance and regulatory programs,
including notice and an opportunity for comment. In all cases, specific
concurrence is required from EPA.
Timing at the SWS--Commenters asked that the location of the SWS
relative to feeding, spawning, and migration areas for adult and
juvenile salmonids address fish habitat and life cycle requirements and
avoid habitat degradation through appropriate timing and volume of
dumping of dredged materials. Commenters also asked that specific
timing restrictions be established at the SWS to avoid impacts to soft
shell crab. EPA does not conclude that a seasonal deadline for ending
disposal use of the SWS is warranted based on existing data for the
SWS. An August deadline for ending disposal each year at the SWS had
been agreed to by the Corps in 1998 as part of a settlement agreement
with the Columbia River Crab Fishermen Association (CRCFA). That
agreement terminated by its provisions in mid-2004. Currently, there
are no data to suggest that the August deadline bore a significant
relationship to actual crab life cycles or fishery needs. Dredging
times, and other site use conditions necessary to allow EPA to monitor
and manage the site as described in the SMMP, will be established in an
annual use plan for the site. Annual use plans will be developed by
each site user as a mechanism to implement any conditions or practices
necessary for management of the site. The dredge season for the SWS
will be based on many factors. Indirectly, a time limit on site use
already exists. The natural weather, wind, wave, current and tidal
patterns create an optimal window for use of the site. This optimal
window normally runs from the beginning of June to early October. These
natural processes impact dredge operations and ship movement
significantly.
The location of the SWS relative to breeding, spawning, nursery,
feeding, or passage areas in adult and juvenile phases was carefully
assessed. The Corps has been using designated Site E and Expanded Site
E, respectively, for the last 30 years and has disposed of
approximately 50 million cubic yards (mcy) of dredged material at those
sites within those years. The SWS is located in a highly dynamic area
where current and waves allow the sediment to rapidly disperse into the
littoral zone. Monitoring of the area over time has shown that the
bottom elevations have not been adversely altered by disposal of
dredged material. This means the water column available to adult fish
for migration into spawning grounds or to juvenile fish for migration
into the ocean environment has generally remained a constant. The
timing of disposal activities to avoid habitat degradation will be
factored into the use and management of the site.
Size of the SWS--Several commenters asked that EPA clarify the size
of the SWS. EPA provided the 1983 NAD coordinates for the SWS in
section B, above, of this designation and is finalizing the site
configuration at those coordinates. It appears from the comments that
there was confusion over the description of the SWS in the proposed
designation. The coordinates for the ``new Site E'' as presented in the
voluntary NEPA documentation became the coordinates for the Shallow
Water Drop Zone in the proposed designation. The Drop Zone occupies the
identical footprint as the Corps 103-selected Expanded Site E, which
incorporated the former Site E (de-designated in today's action). The
SWS Placement Area represents the outer boundary of the site where
dredged material, when released within the Drop Zone, will temporarily
accumulate during active disposal, and from which dredged material is
expected to erode back into the littoral system. The vertical
configuration of the SWS is a trapezoid that is wider at the seabottom
(Placement Area) and tapering inward to the surface (Drop Zone). The
site, consisting of both the Drop Zone and Placement Area, encompasses
1,198 acres or approximately 1.4 square nautical miles of seafloor. See
Figure 2. EPA and Corps monitoring of the discharged sediment behavior,
augmented by computer modeling, allowed EPA and the Corps to identify
the accumulation pattern and specify the Placement Area (see MCR
Optimized Site Utilization Report). Specification of the Drop Zone
ensures that temporarily accumulating material remains within the same
footprint affected by the use of the Expanded Site E. The Drop Zone
will allow EPA to monitor and manage the dispersion of
[[Page 10047]]
disposed material throughout the site and will enable maximum site
capacity to be used while avoiding the potential for adverse mounding.
Size of the DWS--Several commenters urged EPA to minimize the
bottom footprint of the DWS and to concentrate disposal in the smallest
area possible until maximum acceptable mound height is reached at each
pinpoint dump spot. EPA has seriously evaluated this concern. In
reviewing the site designations at the Mouth of the Columbia River it
is clear that the original sites--Sites A, B, E, and F--were each too
small to accommodate the disposal needs at the Mouth of the Columbia
River or to manage material allocations between the different sites in
an effective manner. EPA is finalizing today's designations to plan for
the long-term needs for disposal at the Mouth of the Columbia River. By
sizing the DWS as proposed, EPA will be able to manage disposal at both
the SWS and the DWS to avoid excessive mounding conditions with
resultant potential for adverse impacts. The size of the DWS also
allows the site to be managed to minimize the impact to the bottom
biological environment. Allowing for a larger, rather than smaller,
ocean floor footprint at the DWS should enable the biological
environment to have the greatest opportunity to adapt to changes to the
seafloor resulting from dredged material disposal over time. The larger
footprint should also ensure long-term capacity negating the need for
additional ocean sites for fifty years or more based on EPA and Corps
projections for ocean disposal needs. EPA is finalizing the DWS as
proposed. As part of its designation studies, EPA considered numerous
locations and configurations of sites to meet the current and long-term
needs of dredged material disposal near the MCR and surrounding locale.
One commenter stated that EPA failed to meet MPRSA requirements by
failing to justify the size of the DWS and incompletely analyzing the
economic impact of the site designation. Ocean dumping regulations
require that ocean disposal sites be sized so as to localize for
identification and to control any immediate adverse impacts and to
permit the implementation of effective monitoring and surveillance
programs to prevent adverse long-range impacts. See 40 CFR 228.5(d).
EPA has met this obligation under the regulations. The DWS is localized
for identification and control, and the NAD 83 coordinates are provided
to establish the parameters of the site. Clear identification of the
site allows for the control of any immediate adverse impacts to the
maximum extent practicable. Monitoring and site surveillance are
feasible at the DWS. Site designations under section 102 of the MPRSA
are generally intended to be long-term as compared to site selections
under section 103 of the MPRSA, which have a five-year to maximum ten-
year life span. EPA's site designations are intended to minimize
conflicts between disposal activities and other activities in the
marine environment and are to avoid areas of existing fisheries or
shellfisheries, and regions of heavy commercial or recreational
navigation where practicable. The DWS has been located and sized with
significant input from stakeholders, in particular commercial and
recreational fishermen, to avoid those areas of existing fisheries that
are most significant to those individuals, companies and organizations.
Mounding at the SWS--Some of the commenters stated that mounding
was an important issue for the proposed SWS and asked EPA to strictly
limit mound-induced wave amplification to 10 percent and to consider
the effects of large and long period swells as they interact with the
site. These commenters referred to the area as ``the path of the last
historic navigation route to the north site fishing grounds.'' EPA and
the Corps have been concerned with the potential for mound-induced wave
amplification at the SWS and have invested considerable effort in
surveying the site and in computer modeling of the site under many
scenarios to consider the effects of wind, wave (period, height,
steepness, breaking), current and swell. See MCR Optimized Site
Utilization Report.
EPA and the Corps looked at the potential change in the wind-wave
environment as it related to a change in the bathymetry (i.e. the
seabed topography) when dredged material was disposed at the SWS. The
assessment indicated that the complex interaction of forces at the site
all had the potential to contribute to wave amplification and that
mound-induced wave amplification alone could not account for total wave
amplification at the site. The assessment suggests that selective
uniform placement of dredged material at the site will eliminate
undesirable impacts to the local wave environment by eliminating or
significantly decreasing the potential to create mounds at the site.
See MCR Optimized Site Utilization Report. Careful management of the
timing and placement of dredged materials at the SWS should ensure that
adverse conditions are not created.
With respect to this area being used as an historic navigation
route to northern fishing grounds, EPA notes that the U.S. Coast Guard
considers the area near Peacock Spit to be an historically dangerous
area that should be avoided by all vessels. Vessels transiting this
area have always done so at great risk. No study or investigation of
the disposal site in this area has ever found that the site or use of
the site contributed to a hazardous situation for any mariner. The
natural conditions themselves are very hazardous and there is no
evidence to suggest that disposal in this area has increased those
risks.
Placement of the DWS--One commenter expressed general support for
placement of the DWS in the ``towlane'' at the Columbia River but
suggested that ``towlane'' coordinates should be used to ensure that
active fishing grounds currently available to the commercial fishing
fleet would be avoided. As referenced earlier, the ``tow lane''
referred to is the navigation route depicted on navigation charts as
the route to be used by vessels towing other vessels, for example,
barges or ships. EPA does not agree that ``towlane'' (or ``towboat
lane'') coordinates should be used to define the DWS. The overall
position of the DWS is generally in the towboat lane to avoid
commercial and recreational fishing areas as much as possible; however,
the offset of coordinates between the DWS and the towboat lane is
necessary to avoid direct interference with navigation lanes. The
potential for conflicts at the DWS with vessels transiting the area can
be avoided by careful management and coordination with Columbia River
bar pilots, the U.S. Coast Guard and others. Commercial and
recreational fishery conflicts can be avoided and minimized through
careful management of the site.
Impact on Benthos at the DWS and SWS--One commenter suggested that
disposal at the designated sites would have a potential permanent
effect on benthic species, particularly crab. EPA does not agree that
disposal activities will have a permanent effect on benthic species at
either the SWS or the DWS given the adaptability of the species.
Although crab are present at the SWS and the DWS, these sites do not
differ in any substantive way from the ocean floor outside of the site
boundaries available to crab and other benthic species. At the request
of fishermen and fishing organizations, EPA avoided traditionally rich
fishing grounds as the agency assessed the various alternatives in the
1999 IFR/EIS. Special studies identified in the final SMMP will assess
recolonization after disposals and (periodically) benthic populations.
Depending on the results of the special studies, a biological component
may be
[[Page 10048]]
added to the routine monitoring in the SMMP.
One commenter observed that the full potential effects of dumping
various volumes at the DWS and SWS had not been sufficiently reviewed
and evaluated to include the concentration of the material at the
sites. EPA did assess the potential effects of dumping various volumes
of material at the DWS and SWS (see 1999 IFR/SEIS; see also MCR
Optimized Site Utilization). EPA and the Corps used computer modeling
to provide estimates of the potential volumes the SWS could accommodate
under numerous scenarios to ensure that use of the site would not
potentially contribute to adverse conditions similar to those
experienced at Sites A, B and F. A report was produced from these
studies. The MCR Optimized Site Utilization report concludes that while
the capacity for the SWS is much higher than originally anticipated,
the dispersive conditions are dependent on the placement of sediment at
the site. Generally there is seasonal dispersion from the site into the
littoral zone but storm conditions can impact the rate and trend of the
dispersion. The DWS is sized to handle volumes for the long-term needs
for disposal of sediments from dredging operations near the MCR and the
channel of the Columbia River. This includes capacity for those times
during dredge seasons when the SWS is not available. The full effects
have been reviewed as required for site designations. At the DWS, these
effects include the anticipated loss of benthic organisms that are
directly disposed upon but little to no impact on benthic organisms not
directly disposed on. The DWS will be managed to avoid impacting the
entire site at one time. This use of the site is expected to provide
the best opportunity for benthic organisms at the site to adapt to new
conditions and to recolonize those areas that are disposed on directly.
Cumulative Effects--Commenters stated that cumulative effects had
not been fully assessed to account for environmental and economic
effects including a consideration of the SWS and DWS, the Mouth of the
Columbia River maintenance project, the Columbia River channel
improvement project, effects of jetties, dams, wetland diking, and
other substantial human alterations to the sediment budget and
transport of the area, as well as past temporary ocean disposal by the
Corps. Cumulative effects were addressed in the 1999 IFR/EIS and 2003
SEIS. One commenter also contended cumulative sediment fate analysis
was not adequate to determine sediment movement in and around Columbia
River with any degree of certainty. Although EPA did use sediment fate
analysis in its analysis, EPA did not rely solely on sediment fate
analysis to determine sediment movement. EPA's analysis included an
assessment of oceanographic processes, including offshore regional
scale circulation, inner shelf circulation, seasonal changes in
circulation, long-period waves, offshore rotary currents and littoral
sediment supply and transport. Measured oceanographic data included
hydrographic survey data, textural characteristics of sediments,
seasonal variation of bottom sediments and measured current and seabed
change data which provided sufficient data to allow for an adequate
analysis of cumulative effects.
Safety at the SWS--Some commenters asked whether potential mounding
and wave amplification had been adequately studied at the SWS. The SWS
has been studied in detail both via surveys and modeling. Suggestions
that mariners historically used this area without any navigational
problems prior to dumping are not accurate. Studies done for EPA by the
Corps, the Coast Guard, and independent safety teams strongly agree
that the area near Peacock Spit is a naturally rough surf-zone area
generally to be avoided by vessels at all times. EPA is designating the
SWS without changes from the proposed designation but agrees that
management of disposal at the SWS needs to include placement of dredged
sediments to ensure that mounding conditions are not created that might
contribute to adverse conditions at this dynamic site. By nature, the
site is not suitable for navigation by small vessels; however, there
are no known situations where disposal at Site E or Expanded Site E
contributed to the navigational difficulties of this naturally risky
area. Recent computer modeling at the site at EPA's request resulted in
an optimized use pattern for disposal taking seasonal variation of
current and storm conditions into account. This optimized use strategy
is included in the SMMP and will be included in annual use plans
developed by site users.
Crab Impact at the SWS and DWS--Several commenters addressed the
issue of crab impacts from sediment disposal at the SWS. One commenter
suggested that past dumping activities at the SWS interfered with
fishing and depleted the crab populations. EPA disagrees and has found
no data to substantiate such an impact nor has any such data been
provided. EPA studied crab as part of the designation studies (1999
IFR/EIS, Appendix H) and biological baseline studies. The biological
baseline study using trawls and crab pots provides population
estimates, seasonal variation in crab population, and comparisons of
crab numbers at the proposed sites to the area generally. The
laboratory crab burial studies evaluated the impact of dredged material
disposal on soft-shelled crab.
The extremely dynamic SWS showed relatively constant percentages of
male crab in pots from July to September 2002. Additionally, crabs were
larger in September at the end of the molting season. No pattern of
differential site use was detected even though active placement of
dredged material was taking place at the site during the 2002 dredging
season. The trawls at the SWS exhibited an increase in the number of
males from July to October 2002 along with an increase in hard crab.
Crab were not found in the DWS in great numbers in the July 2002 survey
but were abundant during the September 2002 sampling episode. Increased
abundance of crab in the trawls and pots was observed primarily at the
shallower portion of the site in September 2002. This is consistent
with previous studies. EPA will continue to assess the need to evaluate
the crab resource at the SWS and DWS as part of its management and
monitoring activities.
Commenters asked about the crab data at the DWS. Some commenters
suggested that the data collected showed crab abundance was dense at
the DWS in the late summer with recently molted soft-shelled crabs.
Field surveys were conducted in 2002 and fish and macroinvertebrate
sampling was expanded in 2003 to include both beam trawls and
commercial sized otter trawls. Sampling a given population with
multiple methods is done to ensure that an adequate assessment of a
population structure and composition has been completed. In this case
the results obtained indicated that the DWS was typical of most inner
to middle continental shelf communities found off Oregon and Washington
and did not provide unique habitat or species. Comparing this sampling
event with over 20 years of historic data (see 1999 IFR/EIS, Appendix
H) further substantiates the conclusion that the habitat and community
structure of the DWS is typical of most ocean areas offshore of the
States of Oregon and Washington. EPA's ongoing management and
monitoring should help to ensure that any adverse effects to this
species are minimized.
Navigation Maintained--One commenter stated that the designation of
the SWS and DWS, with their combination of dispersive and non-
dispersive characteristics, met the need for proper channel maintenance
[[Page 10049]]
allowing safe passage for all vessels crossing the bar at the Mouth of
the Columbia River. This commenter also said that EPA demonstrated
responsiveness to local concerns about navigation impacts by proposing
to de-designate sites A, B and F and to address local navigation
concerns by designating the proposed SWS using material dispersal
patterns in the site design. EPA's site designations and de-
designations finalized today are intended to best meet the concerns for
navigation impacts and management of dredged material. Another
commenter stressed the importance of safety for all types and sizes of
marine vessels entering and exiting the Mouth of the Columbia River and
commented that the proposed actions would provide safe passage for
maritime use and preserve the Mouth of the Columbia River's role as a
``gateway to the world for international trade'' and a ``vital part of
the nations'' transportation system.'' EPA agrees that providing new
designated sites for dredged materials and de-designating existing
sites will contribute to safety for vessels of all types and sizes.
Monitoring at the DWS--Commenters expressed concerns about the
feasibility of monitoring the site given its size and depth. EPA
appreciates this concern and has structured the SMMP to ensure that
monitoring activities at the site will be feasible.
DWS Buffer--Several commenters questioned the need for the DWS
buffer. EPA is finalizing the DWS with the buffer. The buffer will
serve primarily as a reference location. Over time, a 40-foot-high
trapezoidal mound will likely be created through disposal activities.
EPA has conservatively assumed that the mound will at times be subject
to slippage on the edges and that some spillover, over time, must be
expected into the DWS buffer. The buffer will act to ensure that
sediments placed at the DWS will not move beyond the site boundaries.
Data collected at the DWS indicate extremely minimal bottom sediment
movement once the sediments have deposited on the bottom. Disposal
sequencing into the DWS will be conducted and evaluated to keep any
potential spillover minimal. EPA believes that disposal immediately and
over time should not impact the buffer's role as a primary reference
location. EPA expects that future and routine modeling will detect the
potential for sediment encroachment into the buffer well before it
might occur. This should allow the adaptive management process in the
SMMP to make corrections or to implement contingencies. During the
designation studies, four locations outside of the DWS were sampled.
These locations could serve as suitable references should any of the
stations within the buffer become compromised. These four locations
will be periodically re-sampled and reassessed as part of ongoing
monitoring at the DWS, either as part of a routine monitoring event or
as a special study, but it is not expected that the four stations would
be reoccupied each and every year.
DWS as a Contingency Site--Some commenters asked EPA to designate
the DWS as a contingency site to be used only when all other options
were exhausted. EPA is not designating the DWS specifically as a
contingency site. It should be clear from the 1999 IFR/EIS and 2003
SEIS that beneficial uses of the dredged material at near-shore sites
are preferred before material is placed in deep water. This preference
does not negate the need for the DWS as a necessary site to manage
dredged material at the Mouth of the Columbia River and lower Columbia
River. The few available near-shore sites do not have the capacity to
accommodate the millions of cubic yards of material dredged annually
and needing to be disposed of. The DWS provides a location for
materials that cannot be otherwise accommodated. This final designation
of the DWS will make the site available for use for dredged materials
meeting the ocean dredged material disposal requirements.
Sediment Size at the DWS--Commenters expressed concern that the
disposal of sediment at the DWS would involve coarser sediment than
occurs naturally and that benthic species at the site, especially crab,
may be unlikely to recover from burial by the coarser sediments. The
difference in sediment size between the grain size currently on the
ocean floor at the DWS was identified as a ``Potential Conflict''
during the site assessment phase of the site evaluation study (1999
IFR/EIS, Appendix H). Grain size sampling, as documented in the 1999
IFR/EIS and 2003 SEIS, has shown that the sediments being dredged are
generally in the size range of 0.12 mm at the outer shoal at the Mouth
of the Columbia River to less than 0.35 mm in the Columbia River
channel. The grain size at the DWS, pre-disposal, generally decreases
with depth. Grain size observed during the biological baseline also
fluctuated with the season. Sediments were finer during the September
2002 sampling compared to the July 2002 sampling event. Finer sediment
appears to be deposited during the calmer months and then appears to be
winnowed and redistributed during rougher sea conditions. Various
studies at the Mouth of the Columbia River found that material placed
in depths greater than 80 feet are rapidly (within 6 months to a year)
covered by ``native material.'' This has been documented for coarse
grained and fine grained dredged material placed offshore of the Mouth
of the Columbia River.
The placement of coarser grained material at the DWS is not
expected to cause an adverse impact to the environment. Grain size and
disposal impacts to the benthic community will be among the parameters
monitored at the DWS once the site is used. EPA has explained that
species will be impacted by initial burial. Part of site management
will involve spreading the sediment load to allow impacted benthic
organisms, such as crab, to unbury when possible and to allow other
species to recolonize.
One commenter said that EPA failed to adequately characterize the
sediments to be disposed at the DWS. EPA did fully characterize the
sediments and water quality of dredging and dredged material disposal
sites. This information is located in Exhibit C, ``Sediment and Water
Quality'' to Appendix H of the 1999 IFR/EIS, 2003 SEIS, Exhibit N,
Attachments A, B and C, and the Biological Baseline study. These
documents presented sediment data collected from the Mouth of the
Columbia River, the Columbia River navigation projects, and the Zone of
Siting Feasibility. Periodic reassessment of dredged material will
occur. Permitted dredged material and dredged material to be disposed
by the Corps needs to be fully tested under the regulations and
applicable guidance.
De-designation of Sites A, B, and F--Some commenters recommended
against the de-designation of sites A, B, E and F based on a belief
that the sites had some capacity to allow for minimal use and that such
minimal use would allow EPA to avoid designating a site for deep water
disposal which, in turn, would make material available for beach
nourishment and beneficial use projects. EPA is finalizing these site
de-designations because there is no available capacity at sites A, B or
F given the potential for interference with navigation for vessels of
all sizes. It is expected that any additional material disposed at
these sites would aggravate potentially adverse conditions. Mounding is
a concern for small vessels trying to navigate the Mouth of the
Columbia River because they are vulnerable to any adverse wave
conditions created by the shallower bottom. Larger vessels are at risk
for grounding on the shallower bottom in addition to being exposed to
the steeper
[[Page 10050]]
and earlier breaking waves. Site E, based on disposal impacts, is de-
designated so that the old site can be incorporated into the footprint
of the SWS. The SWS will allow for increased management options to
ensure that materials can be disposed so as not to create the potential
for adverse conditions. EPA agrees with commenters that navigation
safety is a primary consideration.
Coastal Zone Management Act (CZMA)--Two commenters questioned EPA's
consistency analysis under the Coastal Zone Management Act (CZMA) at
the time of the proposed designations and de-designations. Subsequent
to the publication of the proposed action, EPA provided the states of
Oregon and Washington with negative determinations of coastal effects
for EPA's proposal to designate and de-designate ocean dredged material
disposal sites near the Mouth of the Columbia River near the coastal
states of Oregon and Washington, under Section 102 of the MPRSA. EPA
notes that it received no adverse comments from the relevant state
coastal zone management program offices. In making a negative
determination, EPA clarified that the determination was based primarily
on a distinction, for purposes of the CZMA, between site designation
and site use. Designation of sites, as well as de-designation, provides
the public and potential users with locations for allowable disposal of
dredged material, but, unlike a lease or sale does not grant
conditional property rights of any nature to potential users of the
sites. Consequently, no coastal effect is possible merely through the
provision of such a location. However, use of an ocean disposal site
has the potential to have a coastal effect. Designated sites may not be
used until applicants for site use have been granted permission through
a permitting process or, in the case of the Corps, have met the
substantive permitting process. EPA would expect a CZMA analysis
discussing those potential effects to be undertaken by any person
desiring to use a disposal site.
EPA, in the alternative, also finds that the ocean site
designations and de-designations are consistent to the maximum extent
practicable with any enforceable policy of a state's approved coastal
zone management program. EPA did not receive any adverse comment from
either the State of Oregon or the State of Washington on EPA's negative
determinations for the site designations and de-designations. EPA did
not receive adverse comment from either State on EPA's interpretation
of the enforceable policies of each State's approved coastal zone
management program. EPA's negative determinations were limited to EPA's
assessment of coastal effects on the designation of the SWS and the DWS
and the de-designation of Sites A, B, E, and F. The negative
determinations were further limited to EPA's assessment that the
applicable enforceable policies of the approved CZMA programs in Oregon
and Washington did not apply to the SWS or the DWS. Finally, EPA agrees
with the commenters that greater coordination on CZMA issues would be
beneficial for the states, EPA and the Corps.
National Environmental Policy Act (NEPA)--Two commenters stated
that the proposed action did not comply with NEPA because the 1999 IFR/
1999 IFR/EIS covered channel deepening and did not adequately analyze
ocean disposal options. The Agency met its voluntary NEPA obligations
(63 FR 58045, ``Notice of Policy and Procedures for Voluntary
Preparation of National Environmental Policy Act (NEPA) Documents,''
October 29, 1998) by jointly preparing the 1999 IFR/EIS and the 2003
SEIS with the Corps. ``Appendix H, Volume I: Ocean Dredged Material
Disposal Sites Main Report and Technical Exhibits'' of the 1999 IFR/EIS
provided a comprehensive discussion of the ocean disposal options and
considered 10 candidate sites as possible alternatives for ocean
disposal. Although four of the 10 candidate sites were eliminated from
detailed consideration in the draft EIS, the remaining six candidate
sites were retained. Discussions and negotiations among stakeholders,
EPA and the Corps after the draft EIS was published and before
publication of the 1999 IFR/EIS led to a further reduction of candidate
sites. This sequence of events is fully documented in Appendix H to the
1999 IFR/EIS. EPA discussed the alternatives considered, the available
alternatives, including the alternatives available to other permitting
agencies, and identified the preferred alternative. EPA also analyzed
the preferred alternative against the ocean dumping criteria. The
analysis of candidate sites against the mandatory ocean dumping site
criteria led to the selection of the SWS and DWS as the preferred
sites. The NEPA process leads to a preferred alternative which is
advanced for consideration after the consequences of the reasonable
alternatives have been comprehensively evaluated. This is the process
EPA followed to reach the proposed designation of the SWS and DWS. EPA
remains hopeful that the numerous stakeholders interested in
alternatives to ocean disposal can use the stakeholders forums
(particularly the Regional Sediment Management Initiative) created
under the Regional Dredging Team (RDT) sponsorship.
Endangered Species Act (ESA)--One commenter commented that the
proposed DWS designation did not comply with the Endangered Species Act
(ESA) and requested that use of the proposed DWS be delayed until
current consultation and close coordination with NOAA Fisheries was
completed and conservation measures established. EPA responded to this
comment by taking the opportunity to re-examine its ``Determination of
No Effect with Respect to the Requirements of the Endangered Species
Act for De-Designation of Existing and Designation of New Ocean Dumping
Sites Offshore of the Mouth of the Columbia River, OR & WA, for Listed
and Candidate Species' (August 3, 1999). EPA re-initiated informal
consultation with NOAA Fisheries and with the USFWS for this purpose.
Species lists were revisited and updated and EPA prepared an updated
determination which concluded that its action was not likely to
adversely affect ESA-listed, proposed, or candidate species or their
critical habitat.
EPA received letters from the U.S. Fish and Wildlife Service (dated
December 27, 2004) and NOAA-Fisheries (dated January 6, 2005)
concurring with EPA's determination that the de-designations and
designations ``may affect, but were not likely to adversely effect''
ESA-listed and proposed species. The U.S. Fish and Wildlife Service
concurred, based on the information provided by EPA, with EPA's ``may
affect, but not likely to adversely effect'' determinations for brown
pelicans, marbled murrelets and short-tailed albatross. The U.S. Fish
and Wildlife Service concluded that the requirements under section
7(a)(2) and 7(c) of the ESA were met, concluding the consultation
process.
NOAA Fisheries concurred with EPA's determination that EPA's
proposed action is ``not likely to adversely effect'' the listed or
proposed wildlife species, including Stellar sea lion, loggerhead sea
turtle, leatherback sea turtle, green sea turtle, olive (Pacific)
Ridley turtle, blue whale, sei whale, humpback whale, sperm whale,
Puget Sound killer whale (proposed for listing as threatened on
December 16, 2004), or the following salmonid species: Snake River
steelhead, Upper Columbia River steelhead, Middle Columbia River
steelhead, Upper Willamette River steelhead, Lower Columbia River
steelhead, Snake River spring/summer-run Chinook salmon, Snake River
fall-
[[Page 10051]]
run Chinook salmon, Upper Columbia River spring-run Chinook salmon,
Upper Willamette River Chinook salmon, Lower Columbia River Chinook
salmon, Columbia River chum salmon, Snake River sockeye salmon, and
Lower Columbia River coho salmon. This concurrence was based on the
following rationale: ``(1) While turbidity will be generated from the
disposal, project-related turbidity concentrations are well below known
salmonid impact levels; (2) for the DWS in particular, it is unlikely
that the area currently provides any unique feeding or resting habitat
for ESA-listed salmonids or ESA-listed wildlife species; (3) the
designation and use of the DWS is unlikely to affect the plume
environment; (4) impacts to prey of ESA-listed wildlife species are
likely to be limited to the footprint of the DWS site; and (5) habitat
at the SWS has already been degraded through use, so continued use is
not going to further degrade it beyond its present condition.'' NOAA
Fisheries encouraged EPA to share the results of EPA's monitoring plan
to allow for a joint evaluation of impacts from disposal. NOAA
Fisheries further concurred that none of the disposal sites are located
within proposed or designated critical habitat.
Essential Fish Habitat--One comment concerned the evaluation of
essential fish habitat (EFH) under the Magnuson-Stevens Fishery
Conservation and Management Act (MSA) and the potential impacts on EFH
from the use of the DWS. EPA had concluded that designating the SWS and
DWS would not significantly affect EFH for any of the managed species
under the MSA, but that use of the sites could result in the potential
to impact EFH for some of the ground fish and coastal pelagic species,
as well as salmon species. The impact to habitat for all species was
expected to be very small relative to the total EFH identified for any
of the species evaluated. In no instance did data indicate that the
habitat provided by the SWS or the DWS was unique or particularly
critical for any EFH species. No species was expected to be
significantly adversely affected. EPA and NOAA Fisheries worked through
an EFH consultation process and NOAA Fisheries provided EPA with
limited conservation recommendations to implement. EPA agreed to
implement the conservation recommendations made by NOAA Fisheries.
These recommendations included further analysis of the DWS, a revision
of the draft SMMP to assess biological impacts of disposal at the DWS,
and expanding the monitoring area to assess remobilization of sediments
placed at the DWS. EPA's response to the conservation recommendations
is included in the administrative record for this action. EPA agreed to
additional sampling and analysis at the DWS and collected additional
information in 2003. EPA revised the draft SMMP to include reference
site monitoring and management of the DWS as well as monitoring of the
eventual mound that will be created over time and to add routine site
monitoring and management for the DWS.
Mitigation--Several commenters raised the issue of mitigation.
Although they did not define the term, their comments suggested that
they generally considered ``mitigation'' to mean monetary compensation.
Some commented that mitigation is required under NEPA and the CZMA for
ongoing and increased impacts to ocean resources. The MPRSA, NEPA and
the CZMA do not provide for monetary compensation as a way to mitigate
the affects of a Federal action. Mitigation, in particular as that term
is used in the MPRSA, means to lessen or moderate the ``adverse impact
on the environment to the greatest extent practicable.'' See Section
102(c)(1) of the MPRSA. EPA's obligation to lessen or moderate the
impact of the action is by avoidance measures and minimization of
potential impacts through careful designation of ocean dredged material
disposal sites and through the development of a monitoring and
management program for the sites as described in EPA's final SMMP.
Loss of Coastal Property--Some commenters expressed the concern
that dredging and disposal activities were directly resulting in the
loss of coastal property along the Southwest Washington coast. Other
commenters recognized that management of dredged material disposal
sites could be an essential component in limiting coastal erosion along
the Southwest Washington coast. The issue of coastal erosion is not
unique to this area of coastline but is a natural dynamic in any
coastal environment. All coastal systems are influenced to some extent
by wind, wave, current and storm conditions as well as by sediment
contribution from inland and ocean sources. No single factor is
accountable for coastal erosion in any coastal system. The complexity
of this particular coastal system renders it very unlikely that
specific dredging and disposal activities could cause the direct loss
of coastal property along the southwest Washington coast. No study has
suggested that loss of coastal property along the southwest Washington
coast would occur as a result of dredging and disposal activities
related to projects currently undertaken by the Corps.
Littoral Zone--Several commenters questioned whether disposing of
dredged materials at the SWS actually contributed to the littoral zone
as discussed by EPA in the proposed designation. The Corps' and EPA's
studies at the SWS indicate that the site has the potential for great
capacity and for contributing sediment back to the littoral zone. In
waters less than 60 feet deep along the Washington and Oregon Coasts,
wind- and wave-induced currents dominate the transport of sediment
along the seabed. This area is called the littoral (or nearshore) zone.
The zone is characterized by abundant dissolved oxygen, sunlight,
nutrients, generally high wave energies and water motion. The SWS is
located within the littoral zone. No study indicates that disposal into
the SWS will directly feed sediment back onto Washington beaches but
feeding the littoral zone from the SWS is predicted to be beneficial
for overall sediment enrichment of the system. EPA's designation and
management of the SWS is directly responsive to the desire and historic
requests to use dredged material beneficially by enriching the littoral
zone near the southern coast of Washington. All of the available data,
computer modeling, and physical surveys show that material placed at
the SWS disperses out of the site and into the littoral zone. Enriching
the littoral zone is unlikely to directly replenish a particular beach
because the processes are too complex. However, the potential benefit,
in terms of sediment loading augmenting the littoral system, is that it
is likelier that the sediment enriched load will be carried in the
direction of prevailing wave and current activity, which in this
instance is toward Peacock Spit. This is the reason EPA found that
placement of dredged material at the SWS is a beneficial use of dredged
material. EPA intends, through its monitoring and management program,
as explained in the Final SMMP, to preferentially manage material
dredged at the Mouth of the Columbia River and dredged from other lower
Columbia River projects so that the dredged material will be considered
for placement at the SWS before being considered for placement at the
DWS.
Beneficial Use and Land Based Options--Many commenters commented on
the proposed action to express support for using the Benson Beach site,
North Jetty site, and SWS before using the DWS and for practices that
retain sediments in the littoral zone
[[Page 10052]]
for the beneficial uses they provide. They also urged EPA to consider
land-based alternatives and beneficial use of dredged sediments before
disposal into the DWS. Such evaluations were conducted as part of the
designation process, and will be revisited as appropriate, during
future permitting, site management, and efforts addressing regional
sediment issues. EPA intends to continue to explore options through the
RDT and will seek additional opportunities to retain sediments in the
near-shore zone. The DWS is a necessary option for dredged material
management at the Mouth of the Columbia River. EPA is supportive of
keeping dredged material in the near-shore littoral zone but, without
other immediately available sites on-shore or in the near-shore to
accept dredged sediment from this area, finds that designation of the
DWS is necessary. EPA does not expect that the need for ocean disposal
sites will entirely disappear near the Mouth of the Columbia River
given the annual volume of material that must be moved to maintain
navigation. Beneficial uses and land-based options, to date, have been
controversial, prohibitively expensive and not continuously available.
Some commenters urged EPA to forego designating the proposed 102
sites in favor of 103 Corps-selected temporary sites and to move
forward with Benson Beach on-shore beach nourishment. EPA intends to
designate 102 sites because there is clear need for long-term sites at
the Mouth of the Columbia River. As was shown during the Corps' Mouth
of the Columbia River maintenance dredging for 2003, when the local
government of Pacific County did not allow on-shore placement of
dredged sand at Benson Beach, land-based options can be subject to high
degrees of uncertainty.
One commenter stated that land-based alternatives were preferred
over ocean dumping and asserted that there was a mandatory preference
against ocean dumping of any materials. While it is true that under the
regulations such alternatives are to be considered, including ``the
probable impact of requiring use of such alternate locations or methods
upon considerations affecting the public interest,'' the statutory
preference is for designating sites wherever feasible beyond the edge
of the Continental Shelf. Section 102(a)(I) of the MPRSA, 33 U.S.C.
1412(a)(I). EPA, as cooperating agency with the Corps, rejected off-
shelf locations because of the unique habitat of the Continental Shelf
in this vicinity, but did consider numerous alternatives to possible
ocean dumping sites as part of the joint 1999 IFR/EIS and 2003 SEIS.
EPA did examine potential estuarine disposal sites and upland disposal
sites as well as the continuing use of Benson Beach as an on-shore
disposal site. These alternatives were not found to be viable for
purposes of this designation given the lack of approvals by state
authorities and the public sentiment against using estuarine and upland
disposal sites.
Stakeholder Forum--Most commenters expressed a desire for a
stakeholder forum to allow for continued information exchange on
disposal activities involving disposal on the ocean floor off the
Columbia River and for regional sediment management. EPA agrees and
intends to focus such a forum through the Regional Sediment Management
initiative, sponsored by the recently created RDT. EPA expects that
parties heavily involved in this designation process will continue to
be involved in discussions of regional dredged material management
issues. EPA does not expect that such a forum would be a decision-
making body but expects that input from a diverse group of stakeholders
will allow significant issues to be addressed. The RDT will provide a
focus for a comprehensive Region-wide discussion of management options
that could lead to management solutions. EPA supports the use of the
RDT as a forum to explore beneficial use opportunities for dredged
material disposal. EPA's support for the RDT does not change today's
action finalizing the site designations and de-designations.
In a related comment, one commenter stated that there was an
``acute disposal crisis'' in 2003 without the DWS. EPA believes that
the 2003 dredging and disposal season, as well as the 2004 dredging and
disposal, showed the need for 102 ocean dredged material site
designations to ensure that sites with capacity are available for the
long-term. For the 2003 dredge and disposal season, the Corps used the
Corps-selected 103 Site E and the North Jetty site for disposal. The
Corps-selected 103 deep water site was available if needed but was not
used for the 2003 season, although it was used for the 2004 season. The
commenter also stated that EPA was in part responsible for a ``crisis''
because of its handling of the ocean disposal taskforce. With respect
to the ocean disposal taskforce, EPA decided that this forum needed to
be changed to include the broader perspective of the Columbia River
watershed. The planned stakeholder forum under the sponsorship of the
RDT is intended to provide the broader perspective clearly desired by
so many to consider long-term sand management needs, land-based
disposal alternatives, and maintenance of fisheries in the area along
the lower Columbia River and in coastal communities near the Mouth of
the Columbia River. Stakeholder input has been of tremendous value in
the designation process.
Historical Use Established--One commenter asserted that designation
of the DWS would ``constitute ex post facto establishment of historical
use, and would thereby unfairly influence the ultimate designation
process.'' EPA does not agree. The regulatory criteria express a
preference for designating sites that have historically been used but
were, or are, not yet designated. See 40 CFR 228.5(e).
Economic Protection of the Coastal Community--One commenter asked
whether EPA had considered the economic protection of the coastal
community. EPA did consider this issue and is interested in the needs
of coastal communities, including the protection of their economic base
and cultural heritage. However, EPA does not have any evidence to
indicate that designating and de-designating sites near the Columbia
River will adversely impact the economic base or cultural heritage of
any coastal community. EPA's action regulates the location of sites to
be used for the disposal of dredged materials in ocean waters. The
action does not regulate fishing or activities related to fishing and
the associated coastal communities.
Public Trust Doctrine--A commenter stated that basic public trust
guidelines must be followed in dredging and disposal to avoid, minimize
and mitigate environmental damage and interference with the public's
use of the water. The Public Trust Doctrine to which the commenter
alludes is a common law legal principal, a doctrine that ``provides
that submerged and submersible lands are preserved for public use in
navigation, fishing, and recreation.'' See Black's Law Dictionary. The
doctrine is carried out through a balancing of interests. EPA has
followed the public trust doctrine in its very public, multi-year
process, balancing interests in navigation, fishing, recreation, and
environmental protection to reach the point of today's final action in
designating the DWS and SWS and de-designating sites A, B, E and F. EPA
considered the concerns of federal agencies, states and local
governments, and private parties and organizations in reviewing
alternatives for ocean site designation to avoid, minimize and mitigate
environmental damage and to avoid as far as
[[Page 10053]]
practicable interfering in the public's use of mouth of the Columbia
River. EPA collected and analyzed data on possible ocean disposal
sites, including alternatives to ocean disposal; weighed the data and
comments received in the preparation of the voluntary NEPA documents
and the comments received on the proposed designations and de-
designations; and examined the concerns voiced by the interested
parties. EPA is locating new sites where environmental damage will be
avoided, minimized and mitigated and where the public's use of the
ocean waters will not be unduly impinged upon.
Fish Tumors--One commenter suggested that bioaccumulation pathways
of contaminants in the lower Columbia River and near the mouth of the
river, as evidenced by tumors on bottom fish collected at the DWS, were
indicative of carcinogenic uptake at the sediment-water interface and
need to be studied. The biological baseline study did identify
epidermal tumors in Rex Sole at the DWS and English Sole at the SWS.
The tumors identified were consistent with tumors observed throughout
fish populations along the northeastern Pacific coast. Statistically,
at the DWS and SWS, the fish presenting with tumors represented less
than 10 percent of the Rex and English Sole collected at those sites as
part of the biological baseline study. Two classes of tumors were
identified. The first were epidermal papillomas, which are fairly
common among Pleuronectids in the northeastern Pacific. These tumors
have not been linked to anthropogenic inputs. The second class of
tumors was similar to dark colored invasive tumors indicating an
invasive squamous cell carcinoma. The cause of these tumors is unknown.
Future studies should be directed to better determine the incident rate
and intensity of these tumors along the Oregon and Washington coast.
Although this is an issue that is not localized to the SWS or the DWS
but is occurring all along the Oregon and Washington coasts, additional
study of the incidence of fish tumors at the designated sites is an
element included in groundfish surveys or studies conducted (see final
SMMP).
Gear Removal--One commenter asked for greater coordination to allow
for gear removal before disposal into designated sites occurred. While
this issue is not specifically addressed in the final SMMP, EPA expects
site users to plan their activities to allow for gear removal when site
users seek permission to use the designated sites. EPA will review site
use plans to insure that coordination with local fishermen associations
is addressed.
Risk of Oil Spills--A commenter observed that the risk of oil
spills at the Mouth of the Columbia River from dredging and dumping had
not been assessed. This risk was addressed in the 1999 IFR/EIS and the
2003 SEIS. The risk, which is the possibility of oil spills from vessel
groundings and navigation conflicts, is directly related to dredging
and dumping operations and channel navigation use and is not a risk
inherent to designating or de-designating an ocean dredged material
disposal site. Maintenance of adequate navigation depths and aids at
the MCR and throughout the Columbia River navigation system helps to
reduce risk of oil spills from large vessel groundings and conflicts.
Preparation and adherence to annual use plans for the dredging and
disposals at EPA-designated sites will further help to avoid or
minimize conflicts between the dredge(s) and incoming and outbound
vessel traffic.
4. Statutory and Executive Order Reviews
a. 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 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, 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.
This action, which simultaneously de-designates certain sites and
designates the SWS and DWS, is not a significant regulatory action
under Executive Order 12866.
b. Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is intended
to minimize the reporting and record-keeping burden on the regulated
community, as well as to minimize the cost of Federal information
collection and dissemination. In general, the Act requires that
information requests and record-keeping requirements affecting ten or
more non-Federal respondents be approved by OPM. Since this action does
not establish or modify any information or record-keeping requirements,
it is not subject to the provisions of the Paperwork Reduction Act.
c. Regulatory Flexibility
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et.
seq., generally requires federal agencies to prepare a final regulatory
flexibility analysis whenever the agency promulgates a final rule
subject to notice and comment rulemaking requirements under 5 U.S.C.
553 after being required by that section (or by any other statute) to
publish a general notice of proposed rulemaking. Section 605(b)
provides an exception to this requirement if the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. The proposed action was certified as an
action that would not have a significant economic impact on a
substantial number of small entities and, therefore, the Agency did not
prepare a regulatory flexibility analysis.
For purposes of assessing the impacts of today's action on small
entities, the RFA provides default definitions for each type of small
entity directly regulated by the rule. Small entities are defined as:
(1) A small business as defined by the Small Business Administration's
(SBA) 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 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 received comments from the Columbia River Deepening Opposition
Group (CDOG) and the Columbia River Crab Fisherman Association (CRCFA)
on the RFA certification. EPA did not receive any adverse comments from
small businesses or other entities that today's action regulates
directly or indirectly. The comments received by EPA discussed impacts
to small businesses such as crab fishers, ground fisheries and other
fisheries, and coastal
[[Page 10054]]
communities involved in fishing. These entities are not directly
regulated by this action. EPA's action regulates the location of sites
to be used for the disposal of dredged materials in ocean waters. The
action does not regulate fishing or activities related to fishing and
the associated coastal communities. The action may have economic
impacts in many sectors of the environment but the RFA does not require
EPA to assess the impacts on all of the nation's small businesses
indirectly affected by the action.
After considering the economic impacts of today's final action on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities directly regulated by
this action.
d. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (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
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 why
the 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, enabling
officials of 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.
This action contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local or tribal
governments or the private sector. It imposes no new enforceable duty
on any State, local or tribal governments or the private sector.
Similarly, EPA has also determined that this 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 action.
e. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801, et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
action and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to publication of the action in the Federal Register. A
Major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2). This action will be effective April 1, 2005.
f. 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 various levels of government.''
This action 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 action addresses the designation and de-
designation of sites near the Columbia River suitable for disposal of
dredged materials. Once designated, persons seeking to use the sites
must obtain a permit, or, as with the Corps, meet the substantive
permit requirements. Thus, Executive Order 13132 does not apply to this
action. Although Section 6 of the Executive Order 13132 does not apply
to this action, EPA did consult with representatives of State and local
governments in developing this action.
g. 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 9, 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.'' One commenter asserted that
EPA had not consulted with Indian Tribal Governments during the
development of this action and that there were tribal implications
because of the potential to affect Columbia River salmon and other
resources. The ocean dredged material disposal site designations and
de-designations do not have substantial direct effects on one or more
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 action.
h. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045 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 may have a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or 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 action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866 and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. The action concerns the designation
and de-designation of ocean disposal sites and
[[Page 10055]]
would only have the effect of providing designated locations to use for
ocean disposal of dredged material pursuant to section 102 (c) of the
MPRSA.
i. 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.
j. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 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 to
Congress, through OMB, explanations when the Agency decides to use
``government-unique'' standards in lieu of available and applicable
voluntary consensus standards.
Although EPA stated that the proposed action did not directly
involve technical standards, the proposed action and today's final
action include environmental monitoring and measurement as described in
EPA's Final Site Monitoring and Management Plan (SMMP). EPA will not
require the use of specific, prescribed analytic methods for monitoring
and managing the designated sites. 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 final SMMP.
k. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low Income Populations
To the greatest extent practicable and permitted by law, and
consistent with the principles set forth in the report on the National
Performance Review, each Federal agency must make achieving
environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health and environmental effects of its programs, policies, and
activities on minority populations and low-income populations in the
United States and its territories and possessions, the District of
Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the
Mariana Islands. Because this action addresses ocean disposal site
designations (away from inhabited land areas), no significant adverse
human health or environmental effects are anticipated. The action is
not subject to Executive Order 12898 because no adverse effects are
expected for minority and low-income populations.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Dated: February 18, 2005.
Ronald A. Kreizenbeck,
Acting Regional Administrator, Region 10.
0
For the reasons set out in the preamble, chapter I of title 40 is
amended as set forth below:
PART 228--[AMENDED]
0
1. The authority citation for part 228 continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
0
2. Section 228.15 is amended by removing and reserving paragraphs
(n)(6) and (n)(7), removing paragraph (n)(9), by revising paragraph
(n)(8) and by adding a new paragraph (n)(9) to read as follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(n) * * *
(6) [Reserved]
(7) [Reserved]
(8) Mouth of the Columbia River, OR/WA Dredged Material Shallow
Water site.
(i) Location: Overall Site Coordinates: 46[deg]15'31.64'' N,
124[deg]05'09.72'' W; 46[deg]14'17.66'' N, 124[deg]07'14.54'' W;
46[deg]10'40.88'' N, 124[deg]16'46.48'' W and 46[deg]15'52.77'' N,
124[deg]05'42.92'' W. Drop Zone: 46[deg]15'35.36'' N,
124[deg]05'15.55'' W; 46[deg]14'31.07'' N, 124[deg]07'03.25'' W;
46[deg]14'58.83'' N, 124[deg]07'36.89'' W and 46[deg]15'42.38'' N,
124[deg]05'26.65'' W (All NAD 83).
(ii) Size: 3.05 kilometers long and 0.32 to 1.10 kilometers wide or
1.4 square nautical mile.
(iii) Depth: Ranges from 14 to 23 meters.
(iv) Primary Use: Dredged Material determined to be suitable for
ocean disposal.
(v) Period of Use: Continuing Use.
(vi) Restriction: Disposal shall be limited to dredged material
determined to be suitable for unconfined disposal; Site use shall be
consistent with the ability of the site to disperse disposed material
into the littoral zone.
(9) Mouth of the Columbia River, OR/WA Dredged Material Deep Water
site.
(i) Location: Overall Site Coordinates: 46[deg]11'03.03'' N,
124[deg]10'01.30'' W; 46[deg]13'09.78'' N, 124[deg]12'39.67'' W;
46[deg]10'40.88'' N, 124[deg]16'46.48'' W; 46[deg]08'34.22'' N,
124[deg]14'08.07'' W (which includes a 3,000-foot buffer); Site
Placement Area: 46[deg]11'06.00'' N, 124[deg]11'05.99'' W;
46[deg]12'28.01'' N, 124[deg]12'48.48'' W; 46[deg]10'37.96'' N,
124[deg]15'50.91'' W; 46[deg]09'15.99'' N, 124[deg]14'08.40'' W (All
NAD, 83).
(ii) Size: 7.01 kilometers long by 5.18 kilometers wide or 10.5
square nautical mile.
(iii) Depth: Ranges from 58 to 91 meters.
(iv) Primary Use: Dredged material determined to be suitable for
ocean disposal.
(v) Period of Use: Continuing Use or until placed material has
mounded to an average height of 40 feet within the placement area (see
restriction 4 below).
(vi) Restrictions: Disposal shall be limited to dredged material
determined to be suitable for unconfined disposal; Site use shall be
consistent with the ability of the site to retain disposed material on-
site; Direct disposal of dredged material into the identified buffer
zone is prohibited; and The Corps and/or EPA shall undertake specific
re-evaluation of site capacity once the site is used and an average
mound height of 30 feet has accumulated throughout the placement area.
This evaluation will either confirm the original 40-foot height
restriction, or recommend a more technically appropriate one.
* * * * *
Note: The following Figures will not appear in the Code of
Federal Regulations.
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[FR Doc. 05-4002 Filed 3-1-05; 8:45 am]
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