[Federal Register Volume 70, Number 106 (Friday, June 3, 2005)]
[Rules and Regulations]
[Pages 32498-32520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10847]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[FRL-7919-9]
Ocean Disposal; Designation of Dredged Material Disposal Sites in
Central and Western Long Island Sound, CT
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: With the publication of this final rule, EPA is designating
two open-water dredged material disposal sites, Central Long Island
Sound (CLIS) and Western Long Island Sound (WLIS), for the disposal of
dredged material from harbors and navigation channels in the Long
Island Sound vicinity in the states of Connecticut and New York. This
action is necessary to provide long-term, open-water, dredged material
disposal sites as an alternative for the possible future disposal of
such material. The basis for this action is described in a Final
Environmental Impact Statement (FEIS) published by EPA in March 2004.
The FEIS identifies designation of the CLIS and WLIS dredged material
disposal sites as the preferred alternatives from the range of options
considered. On September 12, 2003, EPA published in the Federal
Register a proposed rule and a notice of availability of a Draft EIS
(DEIS) for this action. These disposal site designations are subject to
various restrictions designed to support the goal of terminating or
reducing the disposal of dredged material into Long Island Sound, as
explained below in subsection E. 3 of the Supplementary Information
section.
EPA has conducted the disposal site designation process consistent
with the requirements of the Marine Protection, Research, and
Sanctuaries Act (MPRSA), the Clean Water Act (CWA), the National
Environmental Policy Act (NEPA), the Coastal Zone Management Act
(CZMA), and other relevant statutes and regulations. Under NEPA,
federal agencies prepare a public record of decision (ROD) at the time
of their decision on any action for which an FEIS has been prepared.
This Federal Register notice for the final rule will also serve as
EPA's ROD for the site designations.
The site designations are intended to be effective for an
indefinite period of time. EPA has agreed, however, that use of the
sites pursuant to these designations may be suspended or terminated in
accordance with the Restrictions included in the final rule.
The designation of these two disposal sites does not by itself
authorize the disposal of dredged material from any particular dredging
project at either site. The designation of the CLIS and WLIS disposal
sites simply makes those sites available for use for the dredged
material from a specific project if no environmentally preferable,
practicable alternative for managing that dredged material exists, and
if analysis of the dredged material indicates that it is suitable for
open-water disposal.
Thus, each proposed dredging project will be evaluated to determine
whether there are practicable, environmentally preferable alternatives
to open-water disposal. In addition, the dredged material from each
proposed disposal project will be subjected to MPRSA and/or CWA
sediment testing requirements to determine its suitability for possible
open-water disposal at an approved site. Alternatives to open-water
disposal that will be considered include upland disposal and beneficial
uses such as beach nourishment. If environmentally preferable,
practicable disposal alternatives exist, open-water disposal will not
be allowed. In addition, the dredged material will undergo physical,
chemical, and biological analysis to determine its suitability for
open-water disposal. EPA will not approve dredged material for open-
water disposal if it determines that the material has the potential to
cause unacceptable adverse effects to the marine environment or human
health. The review process for proposed disposal projects is discussed
in more detail below and in the FEIS.
As dredged material disposal sites designated by EPA under the
MPRSA, CLIS and WLIS also will be subject to newly developed, detailed
management and monitoring protocols to track site conditions and
prevent the occurrence of unacceptable adverse effects. These
management and monitoring protocols are described in the CLIS and WLIS
Site Management and Monitoring Plans (SMMPs), which are incorporated in
the FEIS as Appendix J. EPA is authorized to close or limit the use of
these sites to further disposal activity if their use causes
unacceptable adverse impacts to the marine environment or human health.
DATES: This final regulation is effective on July 5, 2005.
ADDRESSES: EPA has established a file supporting this action that
includes the Federal Register notice for this final rule, the FEIS and
its appendices, including the SMMPs and responses to public comments,
and other supporting documents.
1. In person. The file is available for inspection at the following
location: EPA New England Library, One Congress St., Suite 1100,
Boston, MA 02114-2023. For access to the documents, call Peg Nelson at
(617) 918-1991 between 10 a.m. and 3 p.m. Monday through Thursday,
excluding legal holidays, for an appointment.
2. Electronically. You also may review and/or obtain electronic
copies of the rule, FEIS, and various support documents from the EPA
home page at http://www.epa.gov/fedrgstr/, or on the
[[Page 32499]]
EPA Region 1 homepage at http://www.epa.gov/region1/eco/lisdreg/.
The Federal Register notice for this final rule and the responses
to public comments on the FEIS also are available for review by the
public at the following locations. The DEIS and FEIS and its
appendices, including the SMMPs and responses to public comments on the
DEIS, also were provided to most of these sources at the time of their
publication, and may still be available for review there.
1. In person. A. Cold Spring Harbor Library, Goose Hill Rd., Cold
Spring Harbor, NY. B. East Hampton Library, 159 Main St., East Hampton,
NY. C. Mamaroneck Public Library Inc., 136 Prospect Ave., Mamaroneck,
NY. D. Montauk Library, 871 Montauk Highway, Montauk, NY. E. New York
State Library, Cultural Education Center 6th Floor, Empire State
Center, Albany, NY. F. Northport Library, 151 Laurel Ave., Northport,
NY. G. Port Jefferson Free Library, 100 Thompson St., Port Jefferson,
NY. H. Port Washington Public Library, 1 Library Dr., Port Washington,
NY. I. Riverhead Free Library, 330 Court St., Riverhead, NY. J.
Bridgeport Public Library, 925 Broad St., Bridgeport, CT. K.
Connecticut State Library, Information Service Division, 231 Capital
Ave., Hartford, CT. L. Milford City Library, 57 New Haven Ave.,
Milford, CT. M. New Haven Free Public Library, 133 Elm St., New Haven,
CT. N. New London Public Library, 63 Huntington St., New London, CT. O.
Norwalk Public Library, 1 Belden Ave., Norwalk, CT. P. Acton Public
Library, 60 Old Boston Post Rd., Old Saybrook, CT. Q. Ferguson Library,
752 High Ridge Road, Stamford, CT. R. Boston Public Library, 700
Boylston St., Copley Square, Boston, MA.
FOR FURTHER INFORMATION CONTACT: Ms. Jean Brochi, U.S. Environmental
Protection Agency, One Congress St., Suite 1100 (COP), Boston, MA
02114-2023; telephone number: (617) 918-1070; fax number: (617) 918-
1505; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
A. Purpose
B. Potentially Affected Entities
C. Disposal Site Descriptions
D. Statutory and Regulatory Authorities
E. Compliance with Statutory and Regulatory Requirements
F. Public Comments
G. Action
H. Supporting Documents
A. Purpose
The two dredged material disposal sites in Long Island Sound
designated by this action are necessary to provide long-term,
environmentally acceptable disposal options for potential use by the
U.S. Army Corps of Engineers (USACE, or Corps) and other federal,
state, municipal and private entities who must dredge channels,
harbors, marinas and other aquatic areas in the Long Island Sound
vicinity in order to maintain conditions for safe navigation for the
purposes of marine commerce and recreation.
B. Potentially Affected Entities
Entities potentially affected by this action are persons,
organizations, or government bodies seeking to dispose of dredged
material in waters of Long Island Sound, subject to the requirements of
the MPRSA and/or the CWA and their implementing regulations. This final
rule is expected to be primarily of relevance to: (a) Parties seeking
permits from the USACE to transport more than 25,000 cubic yards of
dredged material for the purpose of disposal into the waters of the
central and western regions of Long Island Sound; (b) to the Corps
itself for its own dredged material disposal projects; and (c) to other
federal agencies seeking to dispose of dredged material in the central
and western regions of Long Island Sound. Potentially affected
categories and entities that may seek to use the dredged material
disposal sites and would be subject to this final rule may include:
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Examples of potentially
Category affected entities
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Federal Government..................... U.S. Army Corps of Engineers
Civil Works Projects, and
other federal agencies.
Industry and General Public............ Port authorities, harbors,
shipyards, marine repair
facilities, marinas, yacht
clubs, and berth owners.
State, local and tribal governments.... Governments owning and/or
responsible for ports,
harbors, and/or berths,
government agencies requiring
disposal of dredged material
associated with public works
projects.
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This table lists the types of entities that could potentially be
affected by this final rule. EPA notes that nothing in this final rule
alters the jurisdiction or authority of EPA or the types of entities
regulated under the MPRSA and/or CWA. Questions regarding the
applicability of this final rule to a particular entity should be
directed to the contact person listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
C. Disposal Site Descriptions
The following site descriptions are based on information in section
3.4.3 of the FEIS and supporting documents.
1. Central Long Island Sound (CLIS)
The CLIS site has been used for the disposal of dredged material
from central and western Long Island Sound since the early 1940s and
possibly earlier. An actively used site, CLIS has received close to 14
million cubic yards since 1941. Predecessors to the CLIS site in the
same general vicinity received dredged material since the late 1800s.
Between 1982 and 2001, CLIS received approximately seven million cubic
yards, with an average annual volume of 350,000 cubic yards.
In recent years, dredged material disposal at CLIS has been
conducted pursuant to either the Corps' short-term site selection
authority under section 103(b) of the MPRSA or, for small (25,000 cubic
yards or less), non-federal dredging projects, the Corps' CWA section
404 permitting authority. Prior disposal activity dating back to 1941
and possibly earlier was conducted under other applicable federal and
state legal requirements. The availability of CLIS for use by the USACE
under its most recent short-term site selection expired on February 18,
2004. Under MPRSA section 103(b), the term of the Corps site selection
may not be extended. Therefore, the CLIS site is currently available
only for disposal from non-federal projects generating 25,000 cubic
yards or less of dredged material that satisfy CWA section 404
requirements.
The CLIS disposal site is a 1.1 by 2.2 nautical mile (nmi)
rectangular area, about 2.4 square nautical miles (nmi2) in
size. It is located 5.6 nmi south of South End Point near East Haven,
Connecticut, and over 10 nmi north of Shoreham Beach, New York, in
water depths ranging from 56 to 77 feet (17 to 23.5 meters). The site
is entirely within Connecticut state waters, approximately 2.5 nmi
north of the New York state border.
This final rule designates the CLIS site with boundaries slightly
reconfigured from those of the current site. The northern boundary was
extended 700 feet (213 meters) to the north, and the eastern boundary
was extended 1,230 feet (375 meters) to the east, to encompass two
historic disposal mounds, the FVP and CS2 mounds, that lie outside the
current site boundaries. This reconfiguration will allow for management
and monitoring of these two mounds. The coordinates (North
[[Page 32500]]
American Datum 1983: NAD 83) for the CLIS site are as follows:
41[deg] 9.5' N 72[deg] 54.4' W
41[deg] 9.5' N 72[deg] 51.5' W
41[deg] 8.4' N 72[deg] 54.4' W
41[deg] 8.4' N 72[deg] 51.5' W
The sediments at the site are predominantly clayey silt, with areas
of mixed sand, clay, and silt. These sediments are typical of those
found in central Long Island Sound, which is generally a fine-grained
depositional environment. In addition to the ambient silts from this
region, the site also contains deposits of material of mixed grain
sizes dredged from harbors and navigation channels throughout the
central and western Long Island Sound region.
2. Western Long Island Sound (WLIS)
The WLIS site has been used for dredged material disposal since
1982 when it was identified by the Corps in an EIS as the preferred
alternative for a regional dredged material disposal site to serve the
dredging needs of western Long Island Sound. Between 1982 and 2001,
WLIS received 1.7 million cubic yards, with an average annual volume of
85,000 cubic yards. Prior to 1982, sites in the immediate vicinity of
WLIS, including the Eaton's Neck, Stamford, and Norwalk historical
disposal sites, served the dredging needs of the western Sound. In
recent years, the WLIS site has been used pursuant to the Corps' short-
term site selection authority under MPRSA section 103(b). Under that
authority, the site could potentially be used for an additional five
years starting with its next use for a project regulated under the
MPRSA.
The WLIS disposal site is a 1.2 by 1.3 nmi rectangular area, about
1.56 nmi\2\ in size. It is located 2.5 nmi south of Long Neck Point
near Noroton, Connecticut, and two nmi north of Lloyd Point, New York,
in water depths of 79 to 118 feet (24 to 36 meters). The site is
entirely within Connecticut state waters, approximately 200 yards north
of the New York state border.
This final rule designates the WLIS site with boundaries that have
been slightly reconfigured from its existing location. The entire site
has been shifted to the west by approximately 1,106 feet (337 meters)
and to the north by 607 feet (185 meters). This shift will move the
WLIS site out of a rapidly shoaling area in the southeast portion of
the existing site. The coordinates (North American Datum 1983: NAD 83)
for the reconfigured WLIS site are as follows:
41[deg] 00.1' N 73[deg] 29.8' W
41[deg] 00.1' N 73[deg] 28.1' W
40[deg] 58.9' N 73[deg] 29.8' W
40[deg] 58.9' N 73[deg] 28.1' W
The sediments at the site are heterogeneous, with clayey silt in
the northeast corner and a mixture of sand-silt-clay in the center and
southeast corner. These sediments are typical of those found in the
western basin of Long Island Sound, which is generally a fine-grained
depositional environment. In addition to the ambient silts from this
region, the site also contains deposits of material of mixed grain
sizes dredged from harbors and navigation channels throughout the
western Long Island Sound region.
D. Statutory and Regulatory Authorities
The dredged material disposal site designation process has been
conducted consistent with the requirements of the Marine Protection,
Research, and Sanctuaries Act (MPRSA), the Clean Water Act (CWA), the
National Environmental Policy Act (NEPA), the Coastal Zone Management
Act (CZMA), the Endangered Species Act (ESA), the Magnuson-Stevens
Fishery Conservation and Management Act (MSFCMA), and any other
applicable legal requirements.
1. Marine Protection, Research, and Sanctuaries Act (MPRSA); Clean
Water Act (CWA)
The primary statutes governing the aquatic disposal of dredged
material in the United States are the MPRSA, 33 U.S.C. 1401, et seq.,
and the CWA, 33 U.S.C. 1251, et seq. The waters of Long Island Sound
are landward of the baseline from which the territorial sea of the
United States is measured. As with other waters lying landward of the
baseline, all dredged material disposal activities in Long Island
Sound, whether from federal or non-federal projects of any size, are
subject to the requirements of section 404 of the CWA, 33 U.S.C. 1344.
The MPRSA generally only applies to dredged material disposal in waters
seaward of the baseline and would not apply to Long Island Sound but
for the 1980 amendment that added section 106(f) to the statute, 33
U.S.C. 1416(f). This provision--commonly referred to as the ``Ambro
Amendment'' after former New York Congressman Jerome Ambro--requires
that the disposal of dredged material in Long Island Sound from federal
projects (projects carried out under the USACE civil works program or
by other federal agencies) and non-federal projects involving more than
25,000 cubic yards of material, must be carried out to comply with the
requirements of both CWA section 404 and the MPRSA. This applies to
both the authorization of specific disposal sites and the assessment of
the suitability of specific dredged material for disposal. Disposal
from non-federal projects involving 25,000 cubic yards or less of
dredged material, however, is subject only to CWA section 404.
Section 102(c) of the MPRSA, as amended, 33 U.S.C. 1412(c), et
seq., gives the Administrator of EPA authority to designate sites where
ocean disposal of dredged material, among other things, may be
permitted. See also 33 U.S.C. 1413(b) and 40 CFR 228.4(e). The statute
places no specific time limit on the term for use of an EPA-designated
disposal site. Thus, an EPA site designation can be for an indefinite
term, and are generally thought of as long-term designations, but EPA
may place restrictions or limits on the use of the site based on the
site's capacity to receive dredged material or other environmental
concerns. See 33 U.S.C. 1412(c). On October 1, 1986, the Administrator
delegated authority to designate dredged material disposal sites to the
Regional Administrator of the EPA Region in which the sites are
located. The CLIS and WLIS sites are located in Connecticut waters in
Long Island Sound and, therefore, are subject to the site designation
authority of the Regional Administrator of the EPA New England Regional
Office.
Section 103(b) of the MPRSA, 33 U.S.C. 1413(b), provides that any
ocean disposal of dredged material should occur at EPA-designated sites
when feasible. In the absence of an available EPA-designated site,
however, the Corps is authorized to ``select'' appropriate disposal
sites. In 1992, Congress amended MPRSA section 103(b) to place maximum
time limits on the use of Corps-selected disposal sites. Specifically,
the statute restricted the use of such sites to two separate five-year
terms. Thus, open-water disposal in Long Island Sound of dredged
material from projects subject to MPRSA requirements under section
106(f) of the statute (i.e., federal projects or private projects
involving more than 25,000 cubic yards of material) has been conducted
at sites used pursuant to the Corps' site selection authority. The CLIS
disposal site can no longer be used under this authority, however,
because the second five-year term for the site under the Corps' most
recent site selection expired on February 18, 2004. (The site can still
be used if approved under CWA section 404 for non-federal projects
involving less than 25,000 cubic yards of dredged material.) Meanwhile,
the first five-year Corps site selection for the WLIS site has expired
and use of the site under a Corps site
[[Page 32501]]
selection will be limited to five years from the date of the next such
selection.
The Ocean Dumping Regulations prescribe general and specific
criteria at 40 CFR 228.5 and 228.6, respectively, to guide the
selection of disposal sites for final designation. EPA regulations at
40 CFR 228.4(e)(1) provide, among other things, that EPA will designate
any disposal sites by promulgation in 40 CFR part 228. Ocean dumping
sites designated on a final basis are promulgated at 40 CFR 228.15.
Section 102(c) of the MPRSA and 40 CFR 228.3 also establish
requirements for EPA's ongoing management and monitoring, in
conjunction with the USACE, of the disposal sites designated by EPA to
ensure that unacceptable, adverse environmental impacts do not occur.
Examples of such management and monitoring include the following:
regulating the times, rates, and methods of disposal, as well as the
quantities and types of material that may be disposed; conducting pre-
and post-disposal monitoring of sites; conducting disposal site
evaluation and designation studies; and recommending modification of
site use and/or designation conditions and restrictions. See also 40
CFR 228.7, 228.8, 228.9.
Finally, a disposal site designation by EPA does not actually
authorize any dredged material to be disposed of at that site. It only
makes use of that site available as a possible management option if
various other conditions are met first. Authorization to use the site
for dredged material disposal must be provided by the Corps under MPRSA
section 103(b), subject to EPA review, and such disposal at the site
can only be authorized if: (1) It is determined that there is a need
for open-water disposal for that project (i.e., that there are no
practicable alternatives to such disposal that would cause less harm to
the environment); and (2) the dredged material satisfies the applicable
environmental impact criteria specified in EPA's regulations at 40 CFR
part 227. Furthermore, the authorization for disposal is also subject
to review for compliance with other applicable legal requirements,
including the ESA, the MSFCMA, the CWA (including any applicable state
water quality standards), NEPA, and the CZMA.
EPA's evaluation of CLIS and WLIS pursuant to the applicable site
evaluation criteria, and its compliance with site management and
monitoring requirements, are described below in the Compliance with
Statutory and Regulatory Requirements section.
2. National Environmental Policy Act (NEPA)
NEPA, 42 U.S.C. 4321, et seq., requires the public analysis of the
potential environmental effects of proposed federal agency actions and
reasonable alternative courses of action to ensure that these effects,
and the differences in effects among the different alternatives, are
understood in order to ensure high quality, informed decision-making
and to facilitate avoiding or minimizing any adverse effects of
proposed actions, and to help restore and enhance environmental
quality. See 40 CFR 6.100(a) and 1500.1(c) and 1500.2(d)-(f). NEPA
requires substantial public involvement throughout the decision-making
process. See 40 CFR 6.400(a) and 40 CFR part 1503 and 1501.7, 1506.6.
Section 102(c) of NEPA, 42 U.S.C. 4321, et seq., requires federal
agencies to prepare an EIS for major federal actions significantly
affecting the quality of the human environment. An EIS should assess:
(1) The environmental impact of the proposed action; (2) any adverse
environmental effects that cannot be avoided should the proposal be
implemented; (3) alternatives to the proposed action; (4) the
relationship between local short-term uses of man's environment and the
maintenance and enhancement of long-term productivity; and (5) any
irreversible and irretrievable commitments of resources that would be
involved in the proposed action should it be implemented. The required
content of an EIS is further described in regulations promulgated by
the President's Council on Environmental Quality (CEQ). See 40 CFR part
1502.
EPA disposal site designation evaluations conducted by EPA under
the MPRSA have been determined to be ``functionally equivalent'' to
NEPA reviews, so that they are not subject to NEPA analysis
requirements as a matter of law. Nevertheless, as a matter of policy,
EPA voluntarily uses NEPA procedures when evaluating the potential
designation of ocean dumping sites. See 63 FR 58045 (Notice of Policy
and Procedures for Voluntary Preparation of National Environmental
Policy Act Documents, October 29, 1998). While EPA voluntarily uses
NEPA review procedures in conducting MPRSA disposal site designation
evaluations, EPA also has explained that ``[t]he voluntary preparation
of these documents in no way legally subjects the Agency to NEPA's
requirements'' (63 FR 58046).
In this case, EPA prepared an EIS to evaluate the possibility of
designating open-water disposal sites in the central and western
regions of Long Island Sound. As part of the NEPA EIS process, federal
agencies prepare a public record of decision (ROD) at the time of their
decision on any action for which an FEIS has been prepared. In this
case, this final rule will serve as EPA's ROD for the site
designations. See 40 CFR 1505.2 and 1506.4 (the ROD may be integrated
into any other agency document prepared in carrying out its action).
EPA's use of NEPA procedures to evaluate this action is further
described in the following section, Compliance with Statutory and
Regulatory Requirements.
3. Coastal Zone Management Act (CZMA)
The CZMA, 16 U.S.C. 1451, et seq., authorizes states to establish
coastal zone management programs to develop and enforce policies to
protect their coastal resources and promote uses of those resources
that are desired by the state. Sections 307(c)(1)(A) and (C) of the
CZMA require federal agencies to provide relevant states with a
determination that each federal agency activity, whether taking place
within or outside the coastal zone, that affects any land or water use
or natural resource of the state's coastal zone, will be carried out in
a manner consistent to the maximum extent practicable with the
enforceable policies of the state's approved coastal zone management
program. EPA's compliance with the CZMA is described in the following
section, Compliance with Statutory and Regulatory Requirements.
4. Endangered Species Act (ESA)
Under section 7(a)(2) of the Endangered Species Act, 16 U.S.C.
1536(a)(2), federal agencies are required to ensure that their actions
are ``not likely to jeopardize the continued existence of any
endangered species or result in the destruction or adverse modification
of habitat of such species which is determined * * * to be critical * *
*.'' Depending on the species involved, a federal agency is required to
consult with either the U.S. Fish and Wildlife Service (USFWS) or the
National Marine Fisheries Service (NMFS) if the agency's action ``may
affect'' an endangered or threatened species or its critical habitat
(50 CFR 402.14(a)). EPA's compliance with the ESA is described in the
following section, Compliance with Statutory and Regulatory
Requirements.
[[Page 32502]]
5. Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)
The 1996 Sustainable Fisheries Act amendments to the MSFCMA, 16
U.S.C. 1801, et seq., require the designation of essential fish habitat
(EFH) for federally managed species of fish and shellfish. Pursuant to
section 305(b)(2) of the MSFCMA, federal agencies are required to
consult with the NMFS regarding any action they authorize, fund, or
undertake that may adversely affect EFH. An adverse effect has been
defined by the Act as, ``[a]ny impact which reduces the quality and/or
quantity of EFH [and] may include direct (e.g., contamination or
physical disruption), indirect (e.g., loss of prey, reduction in
species' fecundity), site-specific or habitat-wide impacts, including
individual, cumulative, or synergistic consequences of actions'' (50
CFR 600.810(a)). EPA's compliance with the MSFCMA is described in the
following section, Compliance with Statutory and Regulatory
Requirements.
E. Compliance With Statutory and Regulatory Requirements
1. Marine Protection, Research, and Sanctuaries Act (MPRSA)
EPA undertook its evaluation of whether to designate any dredged
material disposal sites in the central and western portions of Long
Island Sound pursuant to its authority under MPRSA section 102(c) in
response to several factors. These factors include the following:
The prohibition on further use of the CLIS disposal site
pursuant to the Corps' site selection authority under MPRSA section
103(b);
The five-year cap on any future use of the WLIS disposal
site pursuant to the Corps' site selection authority under MPRSA
section 103(b);
The understanding that in the absence of an EPA-designated
disposal site or sites, any necessary open-water disposal would either
be stymied or the USACE would have to undertake additional short-term
site selections, perhaps many of them, in the future;
The clear Congressional preference expressed in MPRSA
section 103(b) that any open-water disposal of dredged material take
place at EPA-designated sites, if feasible; and
EPA's policy view that it is generally environmentally
preferable to concentrate any open-water disposal at sites that have
been used historically and at fewer sites, see 40 CFR 228.5(e).
EPA's evaluation considered whether there was a need for any disposal
site designations for long-term dredged material disposal, including an
assessment of whether other dredged material management methods could
reasonably be judged to obviate the need for such designations. Having
concluded that there was a need for open-water disposal sites, EPA then
assessed whether there were sites that would satisfy the applicable
environmental criteria to support a site designation under MPRSA
section 102(c).
The MPRSA and EPA regulations promulgated thereunder impose a
number of requirements related to the designation of dredged material
disposal sites. These include procedural requirements, specification of
criteria for use in site evaluations, and the requirement that a Site
Management and Monitoring Plan (SMMP) must be developed for all
designated sites. As discussed below, EPA complied with each of these
requirements in designating the CLIS and WLIS disposal sites.
a. Procedural Requirements
MPRSA sections 102(c) and 103(b) indicate that EPA may designate
ocean disposal sites, including for dredged material. EPA regulations
at 40 CFR 228.4(e) specify that dredged material disposal sites will be
``designated by EPA promulgation in this [40 CFR] part 228 * * *.'' EPA
regulations at 40 CFR 228.6(b) direct that when an EIS is prepared
under EPA policy in order to assess the proposed designation of one or
more disposal sites, that EIS should include the results of an
environmental evaluation of the proposed disposal site(s) and the Draft
EIS (DEIS) should be presented to the public along with a proposed rule
concerning the disposal site designations. According to 40 CFR
228.6(b), a Final EIS (FEIS) should be provided at the time of final
rulemaking for the site designation.
EPA complied with all of these procedural requirements. The Agency
prepared a thorough environmental evaluation of both the sites proposed
for designation and other alternative sites and courses of action
(other than designating open-water disposal sites). This evaluation was
presented in a DEIS (and related documents) and a proposed rule for
promulgation of the disposal sites. EPA published the proposed rule (68
FR 53687) and a notice of availability of the DEIS (68 FR 53730) for
public review and comment in September 2003. In addition, EPA went
beyond the requirements of 40 CFR 228.6(b) by publishing a FEIS for
public review in April 2004, more than a year before issuance of this
final rule, thus giving the public an additional opportunity to comment
on the proposed site designations, and giving EPA further opportunity
to consider public input, before the final rulemaking for the site
designations. By this final rule, EPA is now completing the designation
of these disposal sites by promulgation in 40 CFR part 228.
Finally, MPRSA sections 102(c)(3) and (4) dictate that EPA must, in
conjunction with the USACE, develop a site management plan for each
dredged material disposal site it proposes to designate. MPRSA section
102(c)(3) also states that in the course of developing such management
plans, EPA and the Corps must provide an opportunity for public
comment. EPA and the Corps also met this obligation by publishing for
public review and comment Draft SMMPs for both the CLIS and WLIS sites.
The Draft SMMPs were published together with the Draft EIS (as
Appendices J-1 and J-2, respectively) and the proposed rule in
September 2003. After considering public comments regarding the SMMPs,
EPA and the Corps published the Final SMMPs for the two disposal sites
in April 2004 as Appendices J-1 and J-2 of the FEIS.
b. Disposal Site Selection Criteria
EPA regulations under the MPRSA identify five general criteria and
11 specific criteria for use in evaluating locations for the potential
designation of dredged material disposal sites. See 40 CFR 228.4(e),
228.5 and 228.6. The evaluation of the CLIS and WLIS disposal sites
with respect to the five general and 11 specific criteria is discussed
in detail in the FEIS and supporting documents and is summarized below.
General Criteria (40 CFR 228.5)
As described in the FEIS, and summarized below, EPA has determined
that the CLIS and WLIS disposal sites satisfy the five general criteria
specified in 40 CFR 228.5. This is discussed in Chapter 5 and
summarized in Table 5-13, ``Summary of Impacts at the Alternative
Sites,'' of the FEIS.
1. Sites must be selected to minimize interference with other
activities in the marine environment, particularly avoiding areas of
existing fisheries or shellfisheries, and regions of heavy commercial
or recreational navigation (40 CFR 228.5(a)).
EPA's evaluation demonstrated that both the CLIS and WLIS disposal
sites would cause minimal interference with the aquatic activities
identified in the criterion. The sites were selected because they are
not located in shipping
[[Page 32503]]
lanes or other major navigation areas and are expected to cause minimal
interference with fisheries, shellfisheries, and regions of commercial
or recreational navigation. EPA used Geographic Information System
(GIS) software to overlay the locations of various uses and natural
resources of the marine environment on the disposal site locations and
surrounding areas (including their bathymetry). Analysis of this data
indicated that use of each site would have minimal potential for
interfering with other existing or ongoing uses of the marine
environment in and around the site locations, including lobstering or
fishing activities. Furthermore, the locations of the two sites should
minimize any interference with navigation since they lie outside areas
of heavy commercial or recreational navigation. In addition, both the
CLIS and WLIS sites have been used for dredged material disposal for
many years and their use has not significantly interfered with the uses
identified in the criterion, and mariners in the area are accustomed to
use of the sites. Finally, time-of-year restrictions (also known as
``environmental windows'') imposed in order to protect fishery
resources will typically limit dredged material disposal activities to
the months of October through April, thus further minimizing any
possibility of interference with the various activities specified in
the criterion.
2. Sites must be situated such that temporary perturbations to
water quality or other environmental conditions during initial mixing
caused by disposal operations would be reduced to normal ambient levels
or to undetectable contaminant concentrations or effects before
reaching any beach, shoreline, marine sanctuary, or known
geographically limited fishery or shellfishery (40 CFR 228.5(b)).
EPA's analysis concluded that both the CLIS and WLIS sites satisfy
this criterion. First, both sites are significant distances from any
beach, shoreline, marine sanctuary (in fact, there are no federally-
designated marine sanctuaries designated in Long Island Sound), or
known geographically limited fishery or shellfishery. Second, the sites
will be used only for the disposal of dredged material determined to be
suitable for open-water disposal by application of the MPRSA ocean
dumping criteria. See 40 CFR part 227. These criteria include
provisions related to water quality and accounting for initial mixing.
See 40 CFR 227.4, 227.5(d), 227.6(b) and (c), 227.13(c), 227.27, and
227.29. Data evaluated during development of the EIS, including data
from monitoring conducted during and after past disposal activities,
indicates that any temporary perturbations in water quality or other
environmental conditions at the site during initial mixing from
disposal operations will be limited to the immediate area of the site
and will neither cause any significant environmental degradation nor
reach any beach, shoreline, marine sanctuary, or other important
natural resource area.
3. If site designation studies show that any interim disposal sites
do not meet the site selection criteria, use of such sites shall be
terminated as soon as an alternate site can be designated (40 CFR
228.5(c)).
There are no interim sites in central and western Long Island Sound
as defined under the Ocean Dumping Regulations (40 CFR 228.14). Neither
the CLIS nor WLIS sites have ever been subject to an interim site
designation by EPA. Therefore, this criterion is not applicable to the
present disposal site designations. While the CLIS site has been used
for dredged material disposal for many decades, it has never been an
interim designated site. Prior to the 1980 Ambro Amendment, the MPRSA
did not apply to Long Island Sound, and disposal was regulated under
the Clean Water Act and/or other applicable authorities. Since the
Ambro Amendment, both the CLIS and WLIS disposal sites have been used
pursuant to the Corps' site selection authority under MPRSA section
103(b) for federal projects and large private projects (i.e., those
involving more than 25,000 cubic yards of material). Both sites also
have been used for smaller private projects under CWA section 404
authority. Furthermore, EPA's evaluation concludes that both the CLIS
and WLIS sites satisfy the applicable site selection criteria.
Therefore, even if this criterion applied, the CLIS and WLIS sites
would satisfy it.
4. The sizes of disposal sites will be limited in order to localize
for identification and control any immediate adverse impacts, and to
permit the implementation of effective monitoring and surveillance to
prevent adverse long-range impacts. Size, configuration, and location
are to be determined as part of the disposal site evaluation (40 CFR
228.5(d)).
EPA has determined, based on the information presented in the FEIS,
that the CLIS and WLIS sites are limited in size to localize for
identification and control any immediate adverse impacts, and to permit
the implementation of effective monitoring and surveillance to prevent
adverse long-range impacts. The combined size of the two sites is
approximately 3.96 nmi2, which is just half of one-percent
of the 675 square miles that comprise the entire central and western
Long Island Sound regions that comprised the study area for the EIS. As
discussed in the FEIS, both sites are located in depositional areas,
meaning the material placed in them will tend to stay there. As a
result, any short-term impacts will be localized and this, together
with other regulatory requirements (e.g., application of sediment
testing and MPRSA criteria), will facilitate control of any such
impacts. The information presented in the FEIS indicates that
historical disposal at these sites over many years has neither resulted
in significant long-term adverse environmental effects nor had any
significant effect outside the sites themselves.
Furthermore, due to their past use for dredged material disposal,
these sites have been monitored for many years under the Corps'
Disposal Area Monitoring System (DAMOS). Thus, experience indicates
that the site configurations will enable effective short-term and long-
term monitoring. In addition, as described above in the Disposal Site
Descriptions section, the existing site boundaries of the CLIS site
have been reconfigured to include two historical disposal mounds
outside of the existing boundary so that they could be managed and
monitored along with the rest of the site. As previously described, the
WLIS site also has been reconfigured from its historical boundaries by
shifting the entire site to the northwest to exclude a rapidly shoaling
area within those prior site boundaries. Thus, EPA developed the site
configurations in conjunction with, and in response to, the substance
of the site evaluations. The sites are identified by specific
coordinates spelled out in the regulations promulgated by this
rulemaking, and the use of precision navigation equipment in both
dredged material disposal operations and monitoring efforts will enable
accurate disposal operations and contribute to effective management and
monitoring of the sites. Detailed plans for the management and
monitoring of the two sites are described in the SMMPs (Appendix J of
the FEIS).
5. EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites where
historical disposal has occurred (40 CFR 228.5(e)).
EPA evaluated sites beyond the edge of the continental shelf as
well as historical disposal sites in Long Island Sound as part of the
alternatives analysis conducted for the EIS. This evaluation determined
that the long distances and travel times between the
[[Page 32504]]
dredging locations in central and western Long Island Sound and the
continental shelf (e.g., 140 miles from Mamaroneck Harbor in
Westchester County, NY) posed significant environmental, operational,
safety, and financial concerns, rendering such options unreasonable.
Environmental concerns include increased risk of encountering
endangered species during transit, increased fuel consumption and air
emissions, and greater potential for accidents in transit that could
lead to dredged material being spilled in unintended areas. As
described in the Disposal Site Descriptions section, the CLIS and WLIS
disposal sites both encompass the footprint of historically used sites.
Long-term monitoring of these sites has shown minimal adverse impacts
to the adjacent marine environment and rapid recovery of the benthic
community in the disposal mounds. While there are also other
historically used disposal sites in the Sound, the analysis in the FEIS
concluded that the CLIS and WLIS sites were the preferable locations.
Thus, the designation of the CLIS and WLIS disposal sites is consistent
with this criterion.
Specific Criteria (40 CFR 228.6)
In addition to the five general criteria discussed above, 40 CFR
228.6(a) lists eleven specific factors to be used in evaluating the
impact of the use of the site(s) for disposal under the MPRSA.
Compliance with the criteria is described in detail in Chapter 5 and
summarized in Table 5-13, ``Summary of Impacts at the Alternative
Sites,'' of the FEIS, and is summarized below.
1. Geographical Position, Depth of Water, Bottom Topography and
Distance From Coast (40 CFR 228.6(a)(1))
Based on analyses described in the FEIS, EPA has concluded that the
geographical position (i.e., location), water depth, bottom topography
(i.e., bathymetry), and distance from coastlines of the two sites will
facilitate containment of dredged material within site boundaries, and
reduce the likelihood of material being transported to the adjacent sea
floor or any areas of special environmental concern. As described in
the preceding Disposal Sites Description section and above regarding
compliance with general criteria 3 and 4 (40 CFR 2285(c) and (d)), both
sites are located far enough from shore, are deep enough, and have
appropriate bathymetry to prevent adverse effects to the marine
environment and coastlines. The CLIS site is located 5.6 nmi south of
South End Point near East Haven, Connecticut, and more than ten nmi
north of Shoreham Beach, New York, in water depths ranging from 56 to
77 feet (17 to 23.5 meters). The WLIS site is located 2.5 nmi south of
Long Neck Point near Noroton, Connecticut, and two nmi north of Lloyd
Point, New York, in water depths of 79 to 118 feet (24 to 36 meters).
As discussed in the FEIS, long-term monitoring of disposal sites in
Long Island Sound found that creating mounds above a depth of 46 feet
(14 meters) can result in material being removed from the mounds by
currents (FEIS, p. 3-17). Both sites are of a sufficient depth to allow
the disposal of the amount of material that is projected over the 20-
year planning horizon without exceeding this depth threshold. As was
also discussed in the FEIS, both sites are located in depositional
areas, meaning the material placed in them will tend to stay there. As
a result, any short-term impacts will be localized and this, together
with other regulatory requirements described elsewhere in this
document, will facilitate control of any such impacts.
2. Location in Relation To Breeding, Spawning, Nursery, Feeding, or
Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR
228.6(a)(2))
EPA considered the proposed CLIS and WLIS disposal sites in
relation to breeding, spawning, nursery, feeding, or passage areas for
adult and juvenile phases (i.e., life stages) of living resources in
Long Island Sound. From this analysis, EPA concluded that, while
disposal of suitable dredged material at the CLIS and WLIS sites would
cause some short-term, localized adverse effects, overall it would not
cause unacceptable or unreasonable adverse effects to the habitat
functions and living resources specified in the above criterion. The
combined size of the two sites is approximately 3.96 nmi2, which is
just half of one-percent of the 675 square miles that comprise the
entire central and western Long Island Sound regions that comprised the
study area for the EIS.
Generally, there are three primary ways that dredged material
disposal can adversely affect marine resources. First, disposal can
cause physical impacts by injuring or burying less mobile fish,
shellfish, and benthic organisms, as well as their eggs and larvae.
Second, tug and barge traffic transporting the dredged material to a
disposal site may collide or otherwise interfere with marine mammals
and reptiles. Third, contaminants in the dredged material may
bioaccumulate through the food chain. However, EPA and the other
federal and state agencies involved with regulating dredging and
dredged material disposal have adopted management techniques that
greatly reduce the potential for these impacts to occur.
One such technique is the use of environmental windows, or time-of-
year restrictions, for both dredging and dredged material disposal.
This type of restriction has been a standard practice for more than a
decade in Long Island Sound, and New England generally, and is
incorporated in Corps permits or authorizations in response to
consultation with federal and state natural resource agencies (e.g.,
NMFS). Dredged material disposal in Long Island Sound is generally
limited to the period between October 1 and April 30, but dredging
windows are often shorter depending on the location of specific
dredging projects in relation to certain fish and shellfish species.
For example, dredging in nearshore areas where winter flounder spawning
occurs is generally prohibited between February 1-April 1, dredging
that may interfere with anadromous fish runs is generally prohibited
between April 1-May 15, and dredging that may adversely affect
shellfish is prohibited between June 1-September 30. These dredging
windows, in effect, serve to further restrict periods during which
dredged material would be disposed.
Another benefit of using environmental windows is that they reduce
the likelihood of dredged material disposal activities interfering with
marine mammals and reptiles. While there are several species, such as
harbor porpoises, long-finned pilot whales, seals, and sea turtles,
that either inhabit or migrate through Long Island Sound, most of them
either leave the Sound during the winter months for warmer waters to
the south or are less active and remain near the shore. There also are
many other mobile species of fish (e.g., striped bass, bluefish, scup)
and invertebrates (e.g., squid) that leave the Sound during the winter
for either deeper water or warmer waters to the south, thus avoiding
the time of year when most dredging and dredged material disposal
occurs. The use of environmental windows has been refined over time and
is now considered an effective management tool to minimize impacts to
marine resources.
There will be some localized impacts to fish, shellfish, and
benthic organisms, such as clams and worms, that are present at a
disposal site (or in the water column directly above the site) during a
disposal event. The sediment plume may entrain and smother some fish in
the water column, and may bury some fish, shellfish, and other marine
[[Page 32505]]
organisms on the sea floor. There usually is a short-term loss of
forage habitat in the immediate disposal area, but the DAMOS program
has documented the recolonization of disposal mounds by benthic infauna
within 1-3 years after disposal.
To further reduce potential environmental impacts associated with
dredged material disposal, the dredged material from each proposed
dredging project will be subjected to the MPRSA sediment testing
requirements set forth at 40 CFR part 227 to determine its suitability
for open-water disposal. Suitability for open-water disposal is
determined by testing the proposed dredged material for toxicity and
bioaccumulation and by quantifying the risk to human health from
consuming marine organisms that are exposed to dredged material and its
associated contaminants using a risk assessment model. If it is
determined that the sediment is unsuitable for open-water disposal--
that is it may unreasonably degrade or endanger human health or the
marine environment--it cannot be disposed at disposal sites designated
under the MPRSA. See 40 CFR 227.6.
EPA complied with the ESA by consulting with and receiving
concurrence from the NMFS and USFWS that the designation of WLIS and
CLIS was not likely to adversely affect federally listed species under
its jurisdiction. Additionally, EPA consulted with NMFS under the
MSFCMA on potential impacts to essential fish habitat (EFH). NMFS
determined that the use of environmental windows and the stringent
testing requirements were sufficient steps to minimize impacts to EFH
and did not offer any additional conservation recommendations. Further
details on these consultations are provided in the FEIS and the section
below describing compliance with the ESA and MSFCMA.
EPA recognizes that dredged material disposal causes some short-
term, localized adverse effects to marine organisms in the immediate
vicinity of each disposal event. But because disposal is restricted to
two small sites (see above regarding compliance with general criteria 5
(40 CFR 2285(e)) and to only several months of the year, EPA concludes
that designating WLIS and CLIS will not cause unacceptable or
unreasonable adverse impacts to breeding, spawning, nursery, feeding,
or passage areas of living resources in adult or juvenile phases.
3. Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3))
EPA's analysis concluded that both the CLIS and WLIS sites satisfy
this criterion. Both sites are far enough away from beaches, parks,
wildlife refuges, and other areas of special concern to prevent adverse
impacts to these amenities and, as previously noted, there are no
marine sanctuaries in Long Island Sound. As previously described, the
CLIS and WLIS disposal sites are 5.6 nmi and two nmi from the nearest
shore, respectively. Therefore, the closest beaches, parks, wildlife
refuges, or other areas of special concern are at least two nmi from
either of the two disposal sites. Based on modeling results that are
presented in section 5.5.3 of the FEIS, and past monitoring of actual
disposal activities, this distance is beyond any expected transport of
dredged material due to tidal motion or currents. As noted above, any
temporary perturbations in water quality or other environmental
conditions at the site during initial mixing from disposal operations
will be limited to the immediate area of the site and will not reach
any beach, parks, wildlife refuges, or other areas of special concern.
Thus, EPA does not anticipate that the continued use of the CLIS
and WLIS disposal sites will cause any adverse impacts to beaches or
other amenity areas.
4. Types and Quantities of Wastes Proposed To Be Disposed of, and
Proposed Methods of Release, Including Methods of Packing the Waste, if
Any (40 CFR 228.6(a)(4))
The typical composition of dredged material to be disposed at the
sites is expected to range from predominantly ``clay-silt'' to ``mostly
sand.'' This expectation is based on data from historical dredging
projects from the central and western regions of Long Island Sound. For
federal dredging projects and private projects generating more 25,000
cubic yards of dredged material, EPA and the USACE will conduct
suitability determinations following applicable criteria for testing
and evaluating dredged material under 40 CFR part 227 and further
guidance in the ``Regional Implementation Manual for the Evaluation of
Dredged Material Proposed for Disposal in New England Waters' (EPA,
2004), before authorizing disposal under the MPRSA. Private dredging
projects generating up to 25,000 cubic yards will continue to be
regulated under CWA section 404. The requirements under the MPRSA and
the CWA are discussed in detail in the EIS. The CLIS and WLIS sites
would receive dredged material that is transported by either government
or private contractor hopper dredges or oceangoing bottom-dump barges
towed by tugboat. Both types of equipment release the material at or
very near the surface, which is the standard operating procedure for
this activity. The disposal of this material will occur at specific
coordinates marked by buoys and will be placed so as to concentrate
material from each disposal project. This concentrated placement is
expected to help minimize bottom impacts to benthic organisms. In
addition, there are no plans to pack or package dredged material prior
to disposal.
Furthermore, it should be emphasized that the CLIS and WLIS sites
are only being designated for the disposal of dredged material;
disposal of other types of material will not be allowed at these sites.
It also should be noted that the disposal of certain other types of
material is expressly prohibited by the MPRSA and EPA regulations
(e.g., industrial waste, sewage sludge, chemical warfare agents,
inadequately characterized materials) (33 U.S.C. 1414b; 40 CFR 227.5).
For all of these reasons, no significant adverse impacts are expected
to be associated with the types and quantities of dredged material that
may be disposed at the sites.
5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))
Monitoring and surveillance are expected to be feasible at both
sites. Both sites are readily accessible for bathymetric and side-scan
sonar surveys and have been successfully monitored by the Corps over
the past 20 years under the DAMOS program. Upon designation of the
sites, monitoring will continue under the DAMOS program in accordance
with the most current approved Site Management and Monitoring Plan
(SMMP) for each site. A Draft SMMP for each site was issued for public
comment in conjunction with the DEIS and was incorporated as Appendix J
to the DEIS, while Final SMMPs were then completed and incorporated as
Appendix J to the FEIS. The SMMPs may be subject to periodic revisions
based on the results of site monitoring and other new information. Any
such revisions will be closely coordinated with other federal and state
resource management agencies and other stakeholders during the review
and approval process, and will become final only when approved by EPA
in conjunction with the USACE. See 33 U.S.C. 1413 (c)(3).
[[Page 32506]]
6. Dispersal, Horizontal Transport and Vertical Mixing Characteristics
of the Area, Including Prevailing Current Direction and Velocity, if
Any (40 CFR 228.6(a)(6))
Although the interactions of bathymetry, wind-generated waves, and
river and ocean currents in Long Island Sound are complex, the CLIS and
WLIS sites are located in areas that are generally calm except during
storms, when dredging and dredged material disposal would not be
occurring anyway. Past monitoring of disposal activity at these two
sites has revealed minimal drift of sediment out of the disposal site
as it passed through the water column, and disposal site monitoring has
confirmed that peak wave-induced bottom current velocities are not
sufficient to cause significant erosion of dredged material placed at
either of the two sites. Monitoring has indicated that the CLIS and
WLIS sites are depositional locations that collect, rather than
disperse, sediment. For these reasons, EPA has determined that the
dispersal, horizontal transport, and vertical mixing characteristics,
as well as the current velocities and directions at the CLIS and WLIS
sites are appropriate to support their designation as dredged material
disposal sites.
7. Existence and Effects of Current and Previous Discharges and Dumping
in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7))
As previously described in the Disposal Sites Descriptions section,
the CLIS site has received close to 14 million cubic yards of dredged
material since 1941, and predecessors to the CLIS site in the same
general vicinity received dredged material since the late 1800s (with
no reliable records of volumes disposed). The WLIS site has been used
for dredged material disposal since 1982, receiving 1.7 million cubic
yards since then. Prior to 1982, sites in the immediate vicinity of
WLIS, including the Eaton's Neck, Stamford, and Norwalk historical
disposal sites, served the dredging needs of the western Sound.
Until the passage of the CWA in 1972, dredged material disposal was
not a heavily regulated activity. Since 1972, open-water disposal in
Long Island Sound has been subject to the sediment testing and
alternatives analysis provisions of section 404 of the CWA. With
passage of the first Ambro Amendment in 1980, dredged material disposal
from all federal projects and non-federal projects generating more than
25,000 cubic yards of material became subject to the requirements of
both CWA section 404 and the MPRSA. The result of these increasingly
stringent regulatory requirements for dredged material disposal is that
there has been a steady, measurable improvement in the quality of
material that has been placed at the CLIS and WLIS disposal site over
the past 33 years.
The CLIS and WLIS disposal sites have both been used on a
consistent basis since the early 1980s pursuant to the Corps' short-
term site selection authority under section 103(b) of the MPRSA (33
U.S.C. 1413(b)). Since then, disposal operations at these sites have
been carefully managed and the material disposed there has been
monitored. Past use of these sites generally makes them preferable to
more pristine sites that have either not been used or have been used in
the more distant past. See 40 CFR 228.5(e). Beyond this, however, EPA's
evaluation of data and modeling results indicates that these past
disposal operations have not resulted in unacceptable or unreasonable
environmental degradation, and that there should be no such adverse
effects in the future from the projected use of the CLIS and WLIS
disposal sites. As part of this conclusion, discussed in detail in the
FEIS, EPA found that there should be no significant adverse cumulative
environmental effects from continuing to use these sites on a long-term
basis for dredged material disposal in compliance with all applicable
regulatory requirements regarding sediment quality and site usage.
8. Interference With Shipping, Fishing, Recreation, Mineral Extraction,
Desalination, Fish and Shellfish Culture, Areas of Special Scientific
Importance and Other Legitimate Uses of the Ocean (40 CFR 228.6(a)(8))
In evaluating whether disposal activity at the sites could
interfere with shipping, fishing, recreation, mineral extraction,
desalination, fish or shellfish culture, areas of scientific importance
and other legitimate uses of the ocean, EPA considered both the effects
of placing dredged material on the bottom of the Sound at the CLIS and
WLIS sites and any effects from vessel traffic associated with
transporting the dredged material to the disposal sites. From this
evaluation, EPA concluded there would be no unacceptable or
unreasonable adverse effects on the considerations noted in this
criterion. Some of the factors listed in this criterion have already
been discussed above due to its overlap with aspects of certain other
criteria. Nevertheless, EPA will address each point below.
The disposal sites are not located in shipping lanes, and the
vessel traffic generated by disposal activity is expected to be similar
to that which has occurred over the past 20 years without interfering
with other shipping activity. Moreover, research by EPA and the USACE
concluded that after disposal at the sites, resulting water depths will
be sufficient to permit navigation in the area without interference.
(And by providing an open-water disposal alternative for use in the
absence of environmentally preferable practicable alternatives, the
sites are likely to facilitate navigation in many of the harbors, bays,
rivers and channels around the Sound.) A U.S. Coast Guard (USCG)
lightering area currently overlaps the northeast corner of the CLIS
site, which could have resulted in anchors disturbing disposal mounds
and causing sediment resuspension, but the USCG has agreed to shift the
designated lightering area boundary to ensure that existing mounds and
future disposed dredged material will not be disturbed. This shift is
also not expected to have any adverse effect on local navigation.
Moreover, as discussed above, dredged material disposal at the site
will only occur in a limited number of months during each year to due
to environmental windows that restrict when dredging and related
disposal may occur.
EPA carefully evaluated the potential effects on commercial and
recreational fishing for both finfish and shellfish (including lobster)
of designating the CLIS and WLIS sites for dredged material disposal
and concluded that there would be no unreasonable or unacceptable
adverse effects. As discussed above in relation to other site
evaluation criteria, dredged material disposal will only have
incidental, insignificant effects on organisms in the disposal sites
and no appreciable effects beyond the sites. Indeed, since past dredged
material disposal has been determined to have no significant adverse
effects on fishing, the similar projected levels of future disposal
activities at the designated sites also are not expected to have any
significant adverse effects. The following are the four main reasons
why EPA came to the conclusion of no unacceptable adverse effects.
First, as discussed above, EPA has concluded that any contaminants
in material permitted for disposal--having satisfied the dredged
material criteria in the regulations that restrict any toxicity and
bioaccumulation--will not cause any significant adverse effects on
fish, shellfish, or other aquatic organisms. Furthermore, because both
the CLIS and
[[Page 32507]]
WLIS sites are depositional, dredged material disposed at the sites is
expected to remain there. Second, as also discussed above, the disposal
sites do not encompass any especially important, sensitive, or limited
habitat for the Sound's fish and shellfish, such as key spawning or
nursery habitat for species of finfish. Furthermore, while some
commenters in the EIS process expressed the concern that dredged
material disposal has caused or contributed to the recent ``die-off''
of lobster in the western region of the Sound, or recent increases in
the incidence of shell disease in the eastern portion of the Sound, EPA
explained in detail in the EIS and Responses to Comments why dredged
material disposal is not regarded to have caused or contributed
significantly to either problem.
Third, while EPA found that a small number of demersal fish (e.g.,
winter flounder), shellfish (e.g., clams and lobsters), benthic
organisms (e.g., worms), and zooplankton and phytoplankton could be
lost due to the physical effects of disposal (e.g., burial of organisms
on the bottom by dredged material and entrainment of plankton in the
water column by dredged material upon its release from a disposal
barge), EPA also determined that these minor adverse effects would be
neither unreasonable nor unacceptable. This determination was based on
EPA's conclusion that the numbers of organisms potentially affected
represent only a minuscule percentage of those in the central and
western regions of the Sound, and the Corps' disposal site monitoring
showing the rapid recovery of the benthic community in an area covered
with dredged material. In addition, any physical effects will be
limited by the relatively few months in which disposal is permitted by
the ``environmental window'' restrictions.
Fourth, EPA has determined that vessel traffic associated with
dredged material disposal will not have any unreasonable or
unacceptable adverse effects on fishing. As explained above,
environmental window restrictions will limit any disposal to the period
between October 1 and April 30, and often fewer months depending on
species-specific dredging windows for each dredging project, each year.
Moreover, there is generally far less vessel traffic in the months when
disposal would occur due to the seasonal nature of recreational and
commercial boating.
There currently are no mineral extraction activities or
desalinization facilities in the central and western Long Island Sound
region with which disposal activity could potentially interfere. Energy
transmission pipelines and cables are located near the sites, but none
are within their boundaries. While at the time of this evaluation only
three pipelines were in place, development of several new pipelines is
anticipated in the future and will be prohibited from traversing the
sites.
No fish farming currently takes place in Long Island Sound, and the
only form of shellfish culture in the area, oyster production, occurs
in nearshore locations far enough away from the two designated disposal
sites that it should not be impacted in any manner by this action.
Finally, neither site is in an area of special scientific importance;
in fact, areas with such characteristics were screened out very early
in the alternatives screening process.
Accordingly, depositing dredged material at the sites will not
interfere with any of the activities described in this criterion or
other legitimate uses of Long Island Sound.
9. The Existing Water Quality and Ecology of the Sites as Determined by
Available Data or by Trend Assessment or Baseline Surveys (40 CFR
228.6(a)(9))
EPA's analysis of existing water quality and ecological conditions
at the site in light of available data, trend assessments and baseline
surveys indicates that use of the designated disposal sites will cause
no unacceptable or unreasonable adverse environmental effects.
Considerations related to water quality and various ecological factors
(e.g., sediment quality, benthic organisms, fish and shellfish) have
already been discussed above in relation to other site selection
criteria, and are discussed in detail in the FEIS and supporting
documents. In considering this criterion, EPA took into account
existing water quality and sediment quality data collected at the
disposal sites, including from the Corps' DAMOS site monitoring
program. Furthermore, EPA and the Corps have, following solicitation of
public comments, prepared Final SMMPs for both the CLIS and WLIS sites
to guide future monitoring of site conditions.
10. Potentiality for the Development or Recruitment of Nuisance Species
in the Disposal Sites (40 CFR 228.6(a)(10))
Monitoring at disposal sites in Long Island Sound over the past 20
years has shown no recruitment of nuisance species capable of harming
human health or the marine ecosystem and no such adverse effects are
expected to occur at the CLIS and WLIS sites in the future. EPA and the
USACE will continue to monitor the sites under the SMMPs, which include
a ``management focus'' on ``changes in composition in numbers of
pelagic, demersal, or benthic biota at or near the disposal sites''
(see section 6.1.5 of the SMMPs, Appendix J of the FEIS).
11. Existence at or in Close Proximity to the Sites of Any Significant
Natural or Cultural Feature of Historical Importance (40 CFR
228.6(a)(11))
Due to the location of the two sites in the waters of central and
western Long Island Sound, the cultural resources that have the
greatest potential for being impacted are shipwrecks. A review of the
current NOAA and Warren C. Reiss Marine Shipwrecks databases revealed a
total of 39 shipwrecks throughout the Sound, but none are located
within the disposal site boundaries, a fact confirmed by the
Connecticut State Historic Preservation Office. While none of the known
shipwrecks of historic significance are located within the sites, the
central and western regions of Long Island Sound are known to have at
least 12 and four shipwrecks, respectively. It is possible that there
are other as yet undiscovered shipwrecks in the area. As additional
side-scan sonar surveys are conducted at the disposal sites in the
future under the SMMPs, and if potential shipwrecks are identified, EPA
will take appropriate action in cooperation with federal and state
historic preservation officials in response to any significant cultural
resources.
The Connecticut State Historic Preservation Office also determined
that there are no known aboriginal artifacts at the CLIS and WLIS
disposal sites. Two of the region's Indian tribes (the Eastern Pequot
Indians of Connecticut and Narragansett Indian Tribe) participated as
cooperating agencies during the development of the EIS, and neither of
them identified any natural nor cultural features of historical
significance at either site.
c. Disposal Site Management (40 CFR 228.3, 228.7, 228.8 and 228.9)
The CLIS and WLIS disposal sites will be subject to specific
management requirements to ensure that unacceptable adverse
environmental impacts do not occur. Examples of these requirements
include: Restricting the use of the sites to the disposal of dredged
material that has been determined to be suitable for ocean disposal
following MPRSA and/or CWA requirements in accordance with the
provisions of MPRSA section 106(f); monitoring the disposal sites and
their associated reference sites, which are not used for dredged
material disposal, to assess potential impacts to the marine
[[Page 32508]]
environment by providing a point of comparison to an area unaffected by
dredged material disposal; and retaining the right to limit or close
these sites to further disposal activity if monitoring or other
information reveals evidence of unacceptable adverse impacts to the
marine environment. In addition, although not technically a site
management requirement, disposal activity at the sites will generally
be limited to the period between October 1 and April 30, but often less
depending on dredging windows to protect certain species, as described
above. EPA and the Corps have managed and monitored dredged material
disposal activities at the CLIS and WLIS sites since the early 1980s.
Site monitoring has been conducted under the Corps' DAMOS disposal site
monitoring program.
In accordance with the requirements of MPRSA section 102(c) and 40
CFR 228.3, EPA and the Corps developed Site Management and Monitoring
Plans (SMMPs) for both the CLIS and WLIS sites. Draft SMMPs for both
sites were issued for public review and comment in conjunction with the
DEIS and incorporated in the DEIS as Appendix J. After considering
public comment, the agencies issued the Final SMMPs in conjunction with
the FEIS and incorporated them in the FEIS as Appendix J. The SMMPs
describe in detail the specific management and monitoring requirements
for both sites. With respect to site monitoring, the SMMPs build on the
Corps' existing DAMOS monitoring program, which will continue to
provide the backbone of the site monitoring effort.
2. National Environmental Policy Act (NEPA)
Public Involvement
Consistent with its voluntary NEPA policy, as described and
referenced above, EPA has followed the NEPA process and undertaken NEPA
analyses as part of its decision-making process for the disposal site
designations. EPA published a Notice of Intent to prepare an EIS, held
public meetings regarding the scope of issues to be addressed by the
EIS, published a Draft EIS for public review and comment in September
2003, and published a Final EIS in March 2004, including responses to
public comments on the Draft EIS. The FEIS, entitled, ``Final
Environmental Impact Statement for the Designation of Dredged Material
Disposal Sites in Central and Western Long Island Sound, Connecticut
and New York,'' assesses and compares the effects, including the
environmental effects, of designating dredged material disposal sites
in central and western Long Island Sound, and of various alternative
approaches to managing dredging needs, including the ``no action''
alternative (i.e., the alternative of not designating any open-water
disposal sites). See 40 CFR 1502.14.
EPA is the agency authorized by the MPRSA to designate dredged
material disposal sites and was responsible for the EIS. The U.S. Army
Corps of Engineers (USACE, or Corps) was a cooperating agency in the
development of the EIS, see 40 CFR. 1508.5, because of its knowledge
concerning the region's dredging needs, its technical expertise in
monitoring and assessing the environmental effects of dredging and
dredged material disposal, its history in the regulation of dredged
material disposal in Long Island Sound and elsewhere, and its legal
role in regulating dredged material disposal and managing and
monitoring disposal sites. See MPRSA sections 102(c) and 103 and 40 CFR
part 225 and 40 CFR 228.4(e). The Corps also brought significant
financial and human resources to bear on this large and complex
project. To take advantage of expertise held by other entities, and to
ensure compliance with all applicable legal requirements, EPA also
worked in close coordination with other federal agencies, including
NMFS and USFWS, state environmental and coastal zone management
agencies, local governments, and Indian Tribal governments. The NMFS,
Connecticut Department of Environmental Protection (CT DEP), New York
Department of Environmental Conservation (NY DEC), Eastern Pequot
Indians of Connecticut, and Narragansett Indian Tribe participated as
``cooperating agencies'' in preparation of the EIS.
Consistent with the public participation provisions of the NEPA
regulations, EPA and the Corps conducted an extensive public
involvement program throughout the development of the FEIS. The
agencies formed a ``working group'' comprising stakeholders from the
Long Island Sound region and held numerous public meetings and
workshops to provide the public with information on the EIS process and
the results of studies conducted in support of the EIS, and to give the
public ample opportunity to provide input to the NEPA review effort.
The following discussion summarizes the extensive public participation
program conducted by EPA and the Corps; detailed descriptions are
provided in Chapter 7 and Appendix A of the FEIS.
On June 3, 1999, EPA published a Notice of Intent in the Federal
Register (64 FR 29865) and mailed the notice to approximately 7000
interested individuals and organizations registered in the Long Island
Sound EIS mailing list. The notice stated EPA's intent to prepare an
EIS to, ``consider the potential designation of one or more dredged
material disposal sites in Long Island Sound,'' pursuant to MPRSA and
CWA requirements. It further stated that the EIS would evaluate the
four existing dredged material disposal sites that were active at the
time (CLIS, WLIS, Cornfield Shoals, and New London), ``as well as
additional alternatives including other open-water disposal sites,
other types of dredged material disposal and management, and the no-
action alternative.'' It also announced three public scoping meetings
to be held later that month to explain the EIS process and solicit
public input.
Accordingly, in June 1999, EPA and the USACE held three public
scoping meetings in Connecticut and New York to: (1) To inform the
public about the project; (2) explain the respective roles of EPA and
the Corps and the other cooperating or coordinating federal, state and
tribal agencies, and the public, and (3) request comments on the draft
scope of work for the EIS and related studies (detailed in Appendix A
of the FEIS). The scoping meetings also served to identify and record
public views regarding issues and environmental considerations for
potential examination and analysis in the EIS. A total of approximately
130 people attended the three public scoping meetings.
EPA and the Corps also conducted two series of public workshops in
October 1999 and April 2000 in Connecticut and New York to discuss, and
seek public input concerning, the development of the EIS. Topics
covered at the workshops included: Identification of dredged material
management alternatives; the process for screening and evaluating all
the alternatives; and a review of existing data and data collection
needs. A total of approximately 200 people attended the four public
workshops.
In 2000, EPA and the Corps established a volunteer public ``working
group'' comprising individuals representing marine industries, boaters,
environmental groups, fishing interests, and local governments to
provide guidance in the development of the EIS. Five working group
meetings were held between July 2000 and November 2002; attendance at
these meetings ranged from 27 to 44 individuals, including agency staff
and contractors. Topics addressed by the working group sessions
included: Potential environmental impacts to be assessed in
[[Page 32509]]
the EIS; the results of field studies for lobster, fish, and benthic
resources; fishing activities; upland disposal alternatives; dredging
needs; economic analyses; and Geographic Information System (GIS) meta-
databases.
Throughout the EIS development process, EPA and the Corps also met
with other federal and state agencies to keep them apprized of progress
on the project and to solicit input. Other agencies that participated
regularly throughout the process include the NMFS, USFWS, CT DEP, NY
DEC, and the New York Department of State (NY DOS). Ten interagency
meetings and teleconferences were held between March 1999 and January
2003 to review progress and get feedback, and EPA and the Corps were in
regular contact with representatives of these agencies throughout the
EIS process.
As one of the first steps in the EIS process, EPA and the Corps, in
cooperation with other federal and state agencies delineated a ``Zone
of Siting Feasibility'' (ZSF). The ZSF is the geographic area from
which reasonable and practicable open-water dredged material disposal
site alternatives should be selected for evaluation. EPA's 1986 site
designation guidance manual describes the factors that should be
considered in delineating the ZSF, and recommends locating open-water
disposal sites within an economically and operationally feasible radius
from areas where dredging occurs. Other factors to be considered
include navigational restrictions, political or other jurisdictional
boundaries, distance to the edge of the continental shelf, the
feasibility of surveillance and monitoring, and operation and
transportation costs. Consistent with the guidance, in 1999, EPA, in
cooperation with the other agencies, established the ZSF to include the
entire Long Island Sound, from Throgs Neck at the western end to a line
from Montauk Point to Block Island and a line from Block Island due
north to the Rhode Island shoreline on the eastern end.
In March 2002, however, EPA published an Environmental News Notice
announcing its intent to modify the ZSF and the scope of the EIS in
order to assess the need for open-water disposal sites in Long Island
Sound in two phases, with the first EIS to address the central and
western regions of the Sound and a later Supplemental EIS to address
the eastern region of the Sound. The ZSF boundaries were then modified
to address only the central and western regions of Long Island Sound,
with boundaries on the western end that extend from the confluence of
the East and Harlem rivers at Hell's Gate and boundaries on the eastern
end that extend from Mulberry Point in Guilford, CT, to Mattituck Point
in Mattituck, NY.
The primary reasons for this modification in the scope of the EIS
were: (1) The need to assess in a timely manner the appropriateness of
maintaining continued use of a site in the central Long Island Sound
region, given the February 2004 termination date for use of the CLIS
disposal site pursuant to the Corps' site selection authority; (2) the
geographical and environmental independence of the dredging and
disposal needs, and alternatives for meeting those needs, of the
central and western regions of Long Island Sound from those of eastern
Long Island Sound; and (3) the fact that the change in scope would not
preclude consideration of a comprehensive range of disposal
alternatives, or otherwise predetermine the conclusions, for either the
current EIS or for a future supplemental EIS to address eastern Long
Island Sound.
EPA completed the ``Draft Environmental Impact Statement for the
Designation of Dredged Material Disposal Sites in Central and Western
Long Island Sound, Connecticut and New York'' (DEIS) in early September
2003. The DEIS identified the designation of CLIS and WLIS as long-term
dredged material disposal sites under the MPRSA as EPA's preferred
alternative. On September 12, 2003, EPA published in the Federal
Register the proposed rule to designate the CLIS and WLIS disposal
sites (68 FR 53687), together with a notice of availability of the DEIS
and Draft SMMPs (68 FR 53730).
EPA provided for a 45-day public review and comment period, until
October 27, 2003. EPA also posted these documents on the EPA New
England web site, and mailed notices and copies of the DEIS and
supporting material to a large mailing list of agencies, tribes,
organizations, members of Congress, and individual members of the
public. The Federal Register notice also announced that EPA would hold
four public hearings--afternoon and evening sessions on September 30,
2003 in Stony Brook, NY, and on October 1, 2003 in Stamford, CT--to
present information on the DEIS and solicit oral and written comments.
On October 9, 2003, in response to several requests from the public
to extend the comment period and hold another public hearing, EPA
published a notice extending the public comment period by 21 days, to
November 17, 2003 (68 FR 58296), and held another public hearing on
November 13, 2003 in Stamford, CT. On November 28, 2003 in response to
requests from two members of Congress to extend the comment period and
hold additional public hearings, EPA published a notice extending the
public comment period by another 28 days, to December 15, 2003 (68 FR
66825). EPA also held another public hearing on December 10, 2003 in
Stony Brook, NY.
The comment period closed on December 15, 2003. In addition to the
oral testimony transcribed at the public hearings, EPA received written
comments concerning the DEIS from approximately 350 individuals and
organizations. EPA carefully considered the comments concerning the
DEIS and responded to them in Appendix L of the FEIS. EPA also made
certain revisions to its NEPA analysis, including improvements to the
explanations of the purpose and need for the site designations and the
alternatives analysis, based on the comments and information provided
during the public comment period.
On April 9, 2004, EPA published a notice of availability of the
FEIS in the Federal Register for a 30-day public review and comment
period, ending on May 10, 2004 (69 FR 18898). EPA then published an
amended notice extending the comment period to May 17, 2004 (69 FR
26818). EPA also issued a press release announcing the availability of
the FEIS for public comment, posted the FEIS on the EPA New England web
site, and mailed notices and/or copies of the FEIS and supporting
material to a large mailing list of agencies, tribes, organizations,
elected officials, and individual members of the public. EPA and the
Corps also held two public information meetings, on May 4, 2004, in
Islandia, NY, and May 5, 2004, in Stamford, CT, to explain how comments
on the DEIS were addressed in the FEIS, and to answer questions about
the decision. Although federal agencies are not required to solicit
comment on a FEIS, EPA nonetheless did so to provide the public with
further opportunity to comment on the decision and to ensure that the
agency had every opportunity to consider the views of the public.
In response to requests from the public, EPA announced at the two
public information meetings, and through a press release issued on May
4, 2004, that it was extending the comment period by 15 days, to June
1, 2004. EPA also sent letters to members of the New York and
Connecticut congressional delegations informing them of the extension
because of the interest in the timing of the comment period expressed
by certain members of those delegations.
[[Page 32510]]
The comment period for the FEIS closed on June 1, 2004. EPA
received written comments from approximately 2900 individuals and
organizations. EPA has given careful consideration to these comments,
as well as to concerns raised by the NY DOS and other agencies, in
reaching a final decision to designate the proposed CLIS and WLIS
dredged material disposal sites. EPA responded to comments it received
concerning the FEIS in a publicly available ``Response to Comments''
document, as described below in the Public Comments section.
Environmental Impact Statement
The FEIS evaluates whether--and, if so, which--open-water dredged
material disposal sites should be designated in the central and western
regions of Long Island Sound. The FEIS describes the purpose and need
for any such designations, evaluates several alternatives to this
action, including the option of ``no action'' (i.e., no designation),
and concludes that EPA designation of the CLIS and WLIS disposal sites
under the MPRSA is the preferred alternative. The purpose of these
designations is to provide long-term, open-water dredged material
disposal sites as potential options for the future disposal of such
material. The action is necessary because periodic dredging and dredged
material disposal is unavoidably necessary to maintain safe navigation
and marine commerce in Long Island Sound.
As previously noted, dredging in the central and western regions of
Long Island Sound is projected to generate approximately 20 million
cubic yards of dredged material over the next 20 years. EPA evaluated
potential alternatives to open-water disposal in Long Island Sound but
determined that they were insufficient to meet the regional dredging
needs. In accordance with EPA regulations, see 40 CFR 227.16, use of
alternatives to open-water disposal will be required when they provide
a practicable, environmentally preferable option for the dredged
material from any particular disposal project. EPA's designation of the
CLIS and WLIS disposal sites, however, will provide open-water disposal
sites as potential options for dredged material regulated under the
MPRSA that has been tested and determined to be environmentally
suitable for open-water disposal. Sediments found to be unsuitable for
open-water disposal will be required to seek alternatives other than
the CLIS and WLIS disposal sites.
EPA's initial screening of alternatives, which involved input from
other federal and state agencies, local governments, and the public,
led to the determination that the open-water disposal sites were the
most environmentally sound, cost-effective, and operationally feasible
options for the large amount of dredged material expected to be found
suitable for open-water disposal over the 20-year planning horizon.
EPA's analysis of alternatives for disposing of dredged material from
navigation channels and harbors in central and western Long Island
Sound evaluated several different potential alternatives, including
open-water disposal sites, upland disposal, beneficial uses, sediment
treatment, and the no-action alternative. From this analysis, EPA
determined that open-water disposal sites, such as CLIS and WLIS, were
the only alternatives that would provide sufficient practicable
disposal capacity to meet long-term regional dredged material disposal
needs. Again, this analysis also acknowledged that options for dredged
material management other than open-water disposal might be identified
and required for specific dredged material disposal projects in the
future.
EPA also evaluated several open-water disposal site alternatives
other than the CLIS and WLIS sites. This evaluation considered multiple
factors, such as reasonable distances to transport dredged material,
the potential for adverse effects on important natural resources, and
other measures indicating incompatibility for use as a disposal site.
Specific factors evaluated included the sensitivity and value of
natural resources, geographically limited habitats, fisheries and
shellfisheries, shipping and navigation lanes, physical and
environmental parameters, and economic and operational feasibility. The
analysis was carried out in a tiered process. The final tier involved a
detailed analysis of the no-action alternative and the following four
open-water alternative sites: CLIS, Milford, Bridgeport, and WLIS.
Based on this analysis, the CLIS and WLIS sites were identified as the
preferred alternatives for designation as open-water dredged material
disposal sites. Management and monitoring strategies were developed for
each site and are described in the SMMPs.
As stated above, for this action, this final rule and preamble also
serve as EPA's record of decision under NEPA.
3. Coastal Zone Management Act (CZMA)
Based on the evaluations presented in the FEIS and supporting
documents, and a review of the federally approved Connecticut and New
York coastal zone programs and policies, EPA has determined that
designation of the CLIS and WLIS sites for open-water dredged material
disposal under the MPRSA is consistent with the enforceable policies of
the coastal zone management programs of Connecticut and New York. EPA
provided a written determination to this effect to each state. Thus,
EPA has satisfied the CZMA's requirement that federal agencies provide
relevant state(s) with a determination that each federal agency
activity affecting the uses or natural resources of a state's coastal
zone is consistent to the maximum extent practicable with the
enforceable policies of the state's coastal zone management program.
In the EPA's view, there are several broad reasons why the disposal
site designations are consistent with the applicable, enforceable
policies of both states' coastal zone programs. First, the designations
are not expected to cause any significant adverse impacts to the marine
environment, coastal resources, or uses of the coastal zone. Indeed,
EPA expects the designations to benefit uses involving navigation and
berthing of vessels by facilitating needed dredging, and to benefit the
environment by concentrating any open-water dredged material disposal
at a small number of environmentally appropriate sites designated by
EPA and subject to the previously described SMMPs. Second, designation
of the sites does not actually authorize the disposal of any dredged
material at the sites, since any proposal to dispose dredged material
from a particular project at a designated site will only be allowed if:
(a) The material satisfies the sediment quality requirements of the
MPRSA and the CWA; (b) no practicable alternative method of management
with less adverse environmental impact can be identified; and (c) the
disposal complies with the site restrictions set forth in today's final
rule. Third, the designated disposal sites will be managed and
monitored pursuant to an SMMP and, if adverse impacts are identified,
use of the sites will be modified to reduce or eliminate those impacts.
Such modification could further restrict, or even terminate, use of the
sites, if appropriate. See 40 CFR 228.3, 228.11.
On January 22, 2004, EPA submitted its coastal zone consistency
determination to the CT DEP Office of Long Island Sound Programs, which
administers the state's coastal zone management program. CT DEP
concurred with EPA's determination in a letter dated April 5, 2004.
On March 8, 2004, EPA submitted a coastal zone consistency
determination to the Division of Coastal Resources in the New York
Department of State (NY DOS). On June 3, 2004, EPA received a
[[Page 32511]]
letter from the NY DOS objecting to EPA's designation of the CLIS and
WLIS disposal sites on the basis of its view that either EPA had
provided insufficient information to support a CZMA consistency
determination or, based on the information provided, the action was
inconsistent with the enforceable policies of New York's Coastal
Management Program (CMP).
EPA gave careful consideration to the issues raised by NY DOS and,
after consultation with NY DOS and CT DEP, agreed to include certain
additional Restrictions on the use of the sites that respond to the NY
DOS's objections under the CZMA. These additional restrictions have
enabled NY DOS to withdraw its CZMA objection to the disposal site
designations, by letter dated May 13, 2005. EPA continues to hold the
view that the site designations without the additional restrictions
would still be consistent with the enforceable policies of New York's
CMP. Nevertheless, EPA agrees that the additional site Restrictions
place reasonable conditions on when the disposal sites may be used that
provide enhanced assurance that the requirements of the CZMA, the
MPRSA, and NEPA are met.
Moreover, adding these site use Restrictions represents a
reasonable course of action lying between the alternatives of not
designating any disposal sites at all, and designating sites for an
indefinite term without the Restrictions. Both these alternatives, and
others, were evaluated in the EIS supporting this action. Furthermore,
the added site use Restrictions arise out of comments submitted by NY
DOS and other parties and are consistent with EPA's environmental
analysis and proposed action.
Summary of Restrictions
There is a total of fourteen paragraphs of Restrictions in the
final rule. These Restrictions apply to all disposal subject to the
MPRSA at the designated sites pursuant to this final rule. Thus, the
Restrictions apply to all federal projects, and non-federal projects
generating more than 25,000 cubic yards of dredged material. They do
not apply to smaller non-federal projects since, as a matter of law,
such projects are not subject to MPRSA requirements. Rather, any such
disposal will be subject to whatever restrictions are imposed on a case
by case basis through permits issued under Clean Water Act section 404.
The Restrictions apply both to all MPRSA permittees (i.e., private
parties and governmental agencies other than the USACE), and to the
USACE itself which disposes of dredged material pursuant to
authorizations rather than permits. The USACE is ``deemed'' to be a
permittee by today's rule so as to make it subject to the site
Restrictions. The intention of the final rule is to apply the
Restrictions to all persons who may seek to dispose of dredged material
at the sites under MPRSA.
The Restrictions in paragraph 1 are the same as in the proposed
rule. They limit disposal to dredged material from Long Island Sound
and vicinity. Dredged material will be considered to have come from
Long Island Sound and vicinity so long as it come from harbors and
navigation channels either on or near Long Island Sound.
The Restrictions in paragraph 2 require compliance with the Site
Management and Monitoring Plans (SMMPs) that have been developed for
the two sites. These SMMPs are set out as Appendix J to the FEIS--they
have not changed since the time that the FEIS was published. These
SMMPs may be changed in the future, as provided in MPRSA section
102(c)(3). Proposed changes will be subject to public comment
consistent with MPRSA section 102(c)(3). The EPA will utilize the
section 102(c)(3) procedures, rather than proposing changes to this
designation rule every time there is a change to an SMMP.
The Restrictions in paragraphs 3-14 were added by the EPA (in
response to comments) in order to enhance compliance with the MPRSA,
and to address the issues raised by New York under the CZMA. The EPA
consulted with both affected states, and the conditions have been
agreed to by both the NY DOS and the CT DEP. They are designed to
support the common goal of New York and Connecticut to reduce or
eliminate the disposal of dredged material in Long Island Sound. To
support this goal, the Restrictions contemplate that there will be a
regional dredged material management plan (DMMP) for Long Island Sound
that will guide the use of dredged material for projects which occur
after the DMMP is completed. DMMPs are comprehensive studies carried
out by the USACE, in consultation with the EPA and the affected states,
to help manage dredged material in a cost-effective and environmentally
acceptable manner. The Governors of New York and Connecticut have
jointly requested the USACE to develop a DMMP for Long Island Sound.
Consistent with the two states' requests, today's rule contemplates
that the DMMP for Long Island Sound will include the identification of
alternatives to open-water disposal and the development of procedures
and standards for the use of practicable alternatives to open-water
disposal, so as to reduce wherever practicable the open-water disposal
of dredged material. The DMMP also may contain recommendations
regarding the use of the sites themselves. In addition, the final rule
contemplates that a Regional Dredging Team will be established to
identify practicable alternatives to open-water disposal and recommend
their use to the extent practicable, for projects proposed while the
DMMP is being prepared (other than three already permitted and
authorized projects).
In order to ensure that long-term disposal does not occur at the
sites pursuant to today's designation absent restrictions to be
developed by the DMMP, the final rule specifies that the use of the
sites must be suspended or terminated under certain circumstances.
First, paragraph 3 provides that, except as provided in paragraphs 4
and 5, the disposal of dredged material may not occur at the sites
beginning eight years after the effective date of today's designations,
unless a DMMP has been completed by the USACE. This eight-year deadline
is subject to extension under paragraph 4 by agreement of various
parties expected to participate in the development of the DMMP, namely
the USACE, the EPA, the state of Connecticut and the state of New York.
This deadline also is subject to extension by the EPA under paragraph
5, without agreement from other parties, if the EPA determines that the
parties participating in the development of the DMMP have attempted in
good faith to meet the deadline, but that the deadline has not been met
due to factors beyond the parties' control (including funding). Such an
extension may occur in addition to any extensions granted under
paragraph 4, but may be only for one additional year. For example, if
all parties agree to a one year extension, and the EPA later grants a
one year extension, then the DMMP process could take a total of ten
years (without the use of the sites being suspended or terminated).
If the final deadline set pursuant to paragraphs 3, 4 and 5 is
missed, use of the sites will be prohibited for a year. If at the end
of that year, a DMMP still has not been completed, use of the sites
pursuant to today's designation will terminate.
Paragraph 3 of the final rule also specifies that use of the sites
will be suspended or terminated if following the completion of the DMMP
within the eight-year (plus extensions) time frame, the EPA does not
thereafter amend today's rule to incorporate procedures
[[Page 32512]]
and standards that are consistent with those recommended in the DMMP.
Paragraph 7 gives the EPA 120 days from the completion of the DMMP to
adopt such procedures and standards. If the EPA misses the deadline
specified in paragraph 7, use of the sites will be suspended until the
EPA issues a final amended rule. If the EPA makes a final determination
and adopts procedures and standards consistent with the DMMP's
recommendations, then use of the sites will continue (but will be
restricted in accordance with the adopted DMMP recommendations). If the
EPA makes a final determination not to adopt procedures and standards
consistent with the DMMP recommendations, then use of the sites
pursuant to today's rule will be terminated. The EPA notes that it
hopes to be able to support the DMMP recommendations. However, the EPA
cannot commit in advance to do so, but rather must preserve its
discretion, in response to public comments, not to adopt the DMMP
recommendations.
The amended EPA rule need not be identical to the DMMP
recommendations. If the amended EPA rule is not identical to the DMMP
recommendations, but the EPA has adopted substantially all of the
procedures and standards for the use of the sites and the use of
practicable alternatives to open-water disposal recommended in the
DMMP, the use of the sites will not terminate. In addition, the amended
EPA rule will be considered ``consistent'' even if the EPA has not
adopted a recommendation (or recommendations) of the DMMP that are not
consistent with applicable law. Of course, the amended EPA rule will be
considered ``consistent'' even if the EPA goes beyond the
recommendations of the DMMP and adopts stricter standards.
In addition, it is not the intention of today's final rule to have
use of the sites terminate simply because of a good faith error by the
EPA. Thus, if a party believes that EPA's final amended rule does not
contain substantially all procedures and standards recommended in the
DMMP, that party will have the obligation to first petition the EPA
prior to filing any court action, so as to give the EPA the opportunity
to correct any inadvertent omission or to reaffirm its determination
that it has adopted substantially all procedures and standards in the
DMMP. A party will be able to go directly to court to seek termination
of the use of the sites only if it can show that the EPA, in amending
the rule, did not make a good faith attempt to adopt procedures and
standards that were consistent with those recommended in the DMMP.
The final rule contemplates that the USACE will develop through the
DMMP process procedures and standards to reduce or eliminate disposal
of dredged material in Long Island Sound to the greatest extent
practicable. If any party is not satisfied that the final DMMP
recommends such procedures and standards, then paragraph 7 of the
Restrictions in today's rule specifies that any person may petition the
EPA to do a rulemaking to amend these designations to establish
different or additional standards.\1\ The EPA also may initiate such a
rulemaking on its own initiative. While the use of the sites will not
automatically terminate if it is the view of NY DOS or others that the
DMMP does not recommend sufficient measures, the EPA recognizes that
such a conclusion by the NY DOS or others could lead to a revival of
the past objections by the NY DOS and others to the continued use of
these sites. At minimum, any failure to recommend sufficient measures
could have the unfortunate effect of creating the need to revisit
issues in a petition process. Thus, the EPA will work with the USACE,
and the states of New York and Connecticut, to try to ensure that this
does not occur.
---------------------------------------------------------------------------
\1\ The EPA must act on any petition within 120 days, by either
granting the petition (and proposing a rule change) or denying the
petition. Disposal may continue while a petition is pending, but any
disposal occurring after a rule change adopted in response to a
petition will be subject to any additional requirements imposed
pursuant to the granting of the petition and any resulting rule
change.
---------------------------------------------------------------------------
While any DMMP will be carried out by the USACE, active support and
cooperation will be needed from other parties, including the states of
Connecticut and New York. EPA believes that there has been such support
and cooperation and fully expects that this will continue. However, to
help ensure that any DMMP process moves forward expeditiously,
paragraph 6 of the Restrictions specifies that the EPA will conduct an
annual review of progress in developing the DMMP. If the EPA finds that
the DMMP is being unreasonably delayed by one or more parties,
paragraph 6 specifies that the EPA may as appropriate: (i) Suspend use
of the sites (through a rulemaking amending today's site designations)
even prior to the deadlines established in paragraphs 3-5 of the
Restrictions, or (ii) exercise (again through rulemaking) its statutory
and regulatory authorities regarding designation of ocean disposal
sites (which could include new site designations without including the
requirement that there be a DMMP). Of course, EPA expects all parties
to continue to cooperate in fostering a DMMP, so that use of the above
measures by the EPA may never be necessary.
The final rule contemplates that there will be a three staged
process for supporting the goal of reducing or eliminating the disposal
of dredged material in Long Island Sound. At all times, site use will
be limited by the need to comply with all applicable statutory and
regulatory requirements, including the prohibition on open-water
disposal if there is a ``practicable alternative'' under 40 CFR 227.16.
However, over time, compliance with 40 CFR 227.16 and today's final
rule will be achieved in three different ways. First, pursuant to
paragraph 8 of the Restrictions, disposal from three enumerated
projects that already have been authorized or permitted will be allowed
without having to follow any additional particular procedures or
standards. Such disposal must meet all applicable statutory and
regulatory requirements.\2\ Second, for projects initiated other than
those projects but before completion of the DMMP, the requirements of
paragraph 9 will apply. In particular, each project will be subject to
review by a Regional Dredging Team, which will work to identify
practicable land-based alternatives and to ensure their use to the
maximum extent practicable. Third, for projects initiated after
completion of the DMMP, the requirements of paragraph 7 will apply. As
discussed above, the final rule contemplates that the DMMP will develop
and the EPA will adopt (subject to consideration of public comments)
procedures and standards for the use of practicable alternatives to
open-water disposal. The EPA hopes that the combined efforts of the
Regional Dredging Team and the parties participating in the DMMP will
lead to a continual reduction in the use of the sites over time.
---------------------------------------------------------------------------
\2\ All phases of these projects are to be initiated within four
years of today's designations. For the Norwalk project, dredged
material management measures required by the Connecticut state
certification are not considered to be a separate phase but rather
will be part of the second phase.
---------------------------------------------------------------------------
It should be noted that even after the EPA adopts procedures and
standards consistent with the DMMP recommendations, the decision
regarding whether there is a ``practicable alternative'' will continue
to be made on a case by case basis, in connection with the permitting
process. However, any case-by-case determinations will at a minimum
need
[[Page 32513]]
to comply with any procedures and standards included in the site
designations restrictions.
Paragraph 9 also emphasizes two points, consistently with the way
in which the EPA interprets 40 CFR 227.16. First, ``practicable
alternatives'' (as defined in 40 CFR 227.16) must be used for the
maximum volume of dredged material practicable. That is, even if a
practicable alternative is not available for all of the dredged
material from a project, if a practicable alternative is available for
a portion of the dredged material, it must be used for disposal of that
portion of the material in order to at least reduce the use of the
sites being designated today.
Second, the final rule recognizes that use of practicable
alternatives may mean that there will be additional costs (in
comparison to open-water disposal). Paragraph 9 incorporates by
reference 40 CFR 227.16(b) of the EPA's ocean disposal regulations,
which defines ``practicable alternative'' as an alternative which is,
``available at reasonable incremental cost and energy expenditures,
which need not be competitive with the costs of ocean dumping, taking
into account the environmental benefits derived from such activity,
including the relative adverse environmental impacts associated with
the use of alternatives to ocean dumping.'' Thus the final rule
emphasizes that the designated sites may not be used whenever a
``practicable alternative'' is available even when this means added
reasonable incremental costs. Under paragraph 9 and the general ocean
dumping regulations, the USACE (the permitting agency) must make the
initial determination of whether this test has been met, but the USACE
decision is subject to review and possible objection by the EPA. Also,
paragraph 9 is a restriction in an EPA site designation. Therefore, if
the EPA objects to any USACE determination, use of the designated sites
will be prohibited unless and until the EPA objection is resolved. This
EPA oversight established by today's rule is in addition to the EPA's
statutory and regulatory authority to review and object to USACE
permits.
By definition, the requirement that projects use ``practicable
alternatives'' will not impose unreasonably higher costs. Also, if an
alternative does not have less adverse environmental impact or
potential risk to other parts of the environment than use of the Sound,
today's rule will not require that it be used. However, the EPA
recognizes that even where use of Long Island Sound has been determined
to be environmentally acceptable, there may be alternatives (e.g.,
those involving beneficial use) that are environmentally preferable to
use of the Sound. When such preferable alternatives are identified,
they will need to be used if they are available at ``reasonable
incremental cost.''
Today's final rule does not attempt to specify in advance how the
``reasonable incremental cost'' standard will be applied in any
particular case. The regulation contemplates a balancing test, and the
EPA believes that the determination is best made on a case-by-case
basis. The final rule also does not attempt to specify who will need to
pay for any reasonable incremental costs. Rather, the share of such
costs (if any) to be borne by private parties, state government, local
government, or the federal government also will need to be worked out
in response to actual situations. It should be understood, however,
that if the use of a practicable alternative is required in the future
pursuant to today's rule (and 40 CFR 227.16), and no entity is willing
to pay the reasonable incremental costs, then use of the sites will be
prohibited for such projects even when this means that planned projects
must be stopped.
Paragraph 10 of the Restrictions simply repeats the statutory and
regulatory requirement that disposal at these sites will be limited to
dredged sediments that comply with the Ocean Dumping Regulations. Under
33 U.S.C. 1413(d), the USACE may request and the EPA may grant a waiver
allowing otherwise unsuitable materials to be disposed at open-water
disposal sites. The EPA notes that no dredged material has ever been
disposed under such a waiver at any open-water disposal site. However,
paragraph 11 of the Restrictions provides for advance notice to the
Governors of Connecticut and New York, in the unlikely event that there
is a future request for such a waiver at these sites.
Paragraph 12 restricts use of the sites during severe weather
conditions, in order to reduce the risk of spillage.
Paragraphs 13 and 14 of the Restrictions list various legal
restrictions on what the EPA may agree to in a rule. These legal
restrictions would apply even if they were not stated in today's final
rule. First, as noted in paragraph 13, the parties participating in the
DMMP will need to seek additional federal and state funding in order to
develop the DMMP. The EPA cannot guarantee that federal funds will be
made available to the USACE. Paragraph 13 also specifies that the sole
remedy for any failure to meet the conditions specified in today's
final rule shall be restriction of the authority to dispose of dredged
material at these sites pursuant to today's designations. Thus, for
example, if funding is not provided, neither the EPA nor the USACE nor
any other party may be sued for failing to carry out the DMMP. Rather,
the remedy if a DMMP is not developed is that the use of the sites
pursuant to today's final rule will be terminated.
Paragraph 14 specifies that nothing in today's final rule precludes
the EPA from designating other ocean disposal sites, not subject to the
restrictions in this final rule, or taking any subsequent action to
modify today's site designations, provided that the EPA makes any such
designations or takes such subsequent action through a separate
rulemaking in accordance with all applicable legal requirements. Under
the MPRSA, the EPA cannot agree in advance that it will never (under
any circumstances) designate other ocean disposal sites or that it will
never change today's final rule. Notwithstanding this statement of
legal rights, the EPA emphasizes that it is fully committed to
development of a DMMP for Long Island Sound, and believes that the best
environmental result will be to have the DMMP develop recommendations
for the management of dredged material subject to the MPRSA throughout
Long Island Sound. The EPA also recognizes that if it takes a
subsequent action to designate an ocean disposal site in Long Island
Sound not subject to the Restrictions set forth in today's final rule,
the NY DOS (or others) could renew their past objections and challenge
such an action.
Paragraph 14 also provides that this final rule shall not be
interpreted to restrict the EPA's authorities under the MPRSA or the
implementing regulations, or to amend the implementing regulations. The
statute and regulations establish minimum requirements with which the
EPA and others must comply. While this final rule contains additional
provisions designed to address issues raised under the CZMA, and
enhance compliance with the MPRSA, these provisions do not excuse any
non-compliance with the general ongoing requirements of the MPRSA. In
addition, while the final rule contains provisions designed to better
implement regulatory requirements (such as the ``practicable
alternatives'' requirement), it does not amend any existing regulatory
requirement.
4. Endangered Species Act (ESA)
During the EIS development process, EPA consulted under the federal
Endangered Species Act (ESA) with the
[[Page 32514]]
NMFS and the USFWS regarding the potential for the designation and use
of any of the alternative open-water disposal sites to jeopardize the
continued existence of any federally listed threatened or endangered
species, or result in the adverse modification of any critical habitat
of such species. EPA initiated consultations regarding the proposed
CLIS and WLIS disposal sites with both the NMFS and the USFWS on
February 13, 2003. This consultation process is fully documented in the
FEIS. EPA provided the NMFS and the USFWS with EPA's conclusion that
the proposed disposal site designations for the CLIS and WLIS sites
were not likely to adversely affect any federally listed endangered or
threatened species or designated critical habitat of any such species.
On February 5, 2004, NMFS sent a letter concurring with EPA's
proposed action, stating that the designation of CLIS and WLIS, ``is
not likely to adversely affect listed species under the jurisdiction of
NOAA Fisheries.'' NMFS also noted that, ``no further consultation
pursuant to section 7 of the ESA is required.''
On February 12, 2004, USFWS also concurred with the findings of the
EIS that designation of the disposal sites was not likely to adversely
affect any federally listed species under its jurisdiction. The letter
further stated that ``no habitat in the project impact areas is
currently designated or proposed critical habitat under provisions of
the [ESA]'' (87 Stat. 884 as amended; 16 U.S.C. 1531 et seq.). Copies
of these letters are provided in Appendices K and L of the FEIS.
5. Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)
On February 13, 2003, EPA initiated consultation with the NMFS
under the Essential Fish Habitat (EFH) provisions of the Magnuson-
Stevens Fishery Conservation and Management Act. This consultation
addressed the potential for the designation of any of the alternative
ocean disposal sites being evaluated to adversely affect EFH. In a
letter dated January 28, 2004, NMFS concurred with EPA's determination
that the designation of the CLIS and WLIS disposal sites would not
adversely affect EFH. This consultation process is fully documented in
the FEIS.
F. Public Comments
Dredging and dredged material disposal in Long Island Sound has
long presented controversial and complex issues. Considering that fact,
it is not surprising that EPA received many comments both supporting
and opposing the designation of long-term, open-water dredged material
disposal sites in the Sound.
As discussed above, EPA issued a Draft EIS and a Proposed Rule for
the disposal site designations in September 2003. See 68 FR 53687
(Sept. 12, 2003) (Proposed Rule); 68 FR 53730 (Sept. 12, 2003) (Notice
of Availability of the Draft EIS and Draft SMMPs for Public Review).
EPA received numerous comments addressing the DEIS, but none
specifically directed at the proposed rule. These public comments were
submitted both in writing and in oral testimony at the six public
hearings held by EPA and the Corps concerning the DEIS and the proposed
disposal site designations. EPA considered all these comments, as
required by NEPA, responded to them in Appendix L to the Final EIS
issued by the Agency in April 2004. See 69 FR 18898 (April 9, 2004)
(Notice of Availability of the FEIS for public review). EPA will not
repeat those comments and responses here and, instead, urge interested
readers to review Appendix L of the FEIS.
Although not required to do so by NEPA, see 40 CFR 1503.1(b), EPA
opened a comment period on the FEIS and requested any comments from the
public. Numerous public comments were submitted regarding the FEIS. In
reaching its final decisions regarding the present action, as presented
in this final rule, which also constitutes the record of decision (ROD)
for NEPA purposes, EPA reviewed and considered all the written comments
as well as the oral comments received at various public meetings held
concerning the FEIS. Although NEPA does not require that federal
agencies provide responses to public comments concerning a Final EIS,
EPA has in this instance produced a separate Response to Comments
document addressing the public comments on the FEIS. These responses to
comments will not be repeated here, but the Response to Comments
document is available on EPA's Web site at http://www.epa.gov/region1/eco/lisdreg/ and EPA mailed copies of the document to elected
officials, federal and state agencies, libraries, and other
repositories in Connecticut and New York. EPA also mailed a ``letter of
availability'' with instructions on how to access the Response to
Comments document to a mailing list of approximately 2800 addresses. As
explained in the Responses to Comments, EPA believes that its final
action, as presented in this final rule, properly addresses the issues
raised in the public comments.
G. Action
EPA is publishing this final rule designating the Central Long
Island Sound (CLIS) and Western Long Island Sound (WLIS) open-water
dredged material disposal sites for the purpose of providing
environmentally sound open-water disposal options for possible use in
managing dredged material from harbors and navigation channels in Long
Island Sound and its vicinity in the states of Connecticut and New
York. Without these dredged material disposal site designations, there
is presently no open-water disposal site available in the central
region of Long Island Sound, while the existing disposal site in the
western region of the Sound would only be available for five more years
of use pursuant to the Corps' site selection authority under MPRSA
section 103(b).
The site designation process has been conducted consistent with the
requirements of the MPRSA, CWA, NEPA, CZMA, and other applicable
federal and state statutes and regulations. The basis for this federal
action is further described in an FEIS published by EPA in April 2004
that identifies EPA designation of the CLIS and WLIS disposal sites as
the preferred alternatives. This rule also serves as EPA's ROD in the
NEPA review supporting the designation of these sites. The sites are
subject to management and monitoring protocols to prevent the
occurrence of unacceptable adverse environmental impacts. These
protocols are spelled out in Site Management and Monitoring Plans
(SMMPs) for each site. The two SMMPs are included as Appendix J to the
FEIS. Under 40 CFR 228.3(b), the Regional Administrator of EPA Region 1
is responsible for the overall management of these sites.
As previously explained, the designation of these disposal sites
does not constitute or imply EPA's approval of open-water disposal at
either site of dredged material from any specific project. Any proposal
to dispose of dredged material at one of the sites must first receive
proper authorization from the USACE under MPRSA section 103. In
addition, any such authorization by the Corps is subject to EPA review
under MPRSA section 103(c), and EPA may condition or ``veto'' the
authorization as a result of such review in accordance with MPRSA
section 103(c). In order to properly obtain authorization to dispose of
dredged material at either the CLIS or WLIS disposal sites under the
MPRSA, the dredged material proposed for disposal must first satisfy
the applicable criteria for testing and evaluating dredged
[[Page 32515]]
material specified in EPA regulations at 40 CFR part 227, and it must
be determined in accordance with EPA regulations at 40 CFR part 227,
subpart C, that there is no practicable alternative to open-water
disposal with less adverse environmental impact. In addition, any
proposal to dispose of dredged material under the MPRSA at the
designated sites will need to satisfy all the site Restrictions
included in this final rule as part of the site designations. See 40
CFR 228.8 and 228.15(b)(3) and (4).
H. Supporting Documents
1. CT DEP. 1998. Long Island Sound Dredged Material Management
Approach. A study report prepared by SAIC for the State of Connecticut,
Department of Environmental Protection, Office of Long Island Sound
Programs, Hartford, CT. August 1998.
2. EPA Region 1/USACE NAE. 2005. Response to Comments on the Final
Environmental Impact Statement for the Designation of Dredged Material
Disposal Sites in Central and Western Long Island Sound, Connecticut
and New York. U.S. Environmental Protection Agency, Region 1, Boston,
MA. and U.S. Army Corps of Engineers, New England District, Concord,
MA. April 2005.
3. EPA Region 1. 2005. Memorandum to the File Responding to the
Letter from the New York Department of State Objecting to EPA's Federal
Consistency Determination for the Dredged Material Disposal Site
Designations. U.S. Environmental Protection Agency, Region 1, Boston,
MA. May 2005.
4. EPA Region 1/USACE NAE. 2004. Final Environmental Impact
Statement for the Designation of Dredged Material Disposal Sites in
Central and Western Long Island Sound, Connecticut and New York. U.S.
Environmental Protection Agency, Region 1, Boston, MA and U.S. Army
Corps of Engineers, New England District, Concord, MA. March 2004.
5. EPA Region 1/USACE NAE. 2004. Regional Implementation Manual for
the Evaluation of Dredged Material Proposed for Disposal in New England
Waters. U.S. Environmental Protection Agency, Region 1, Boston, MA. and
U.S. Army Corps of Engineers, New England District, Concord, MA. April
2004.
6. EPA Region 2/USACE NAN. 1992. Guidance for Performing Tests on
Dredged Material Proposed for Ocean Disposal. U.S. Environmental
Protection Agency, Region 2, New York, NY and U.S. Army Corps of
Engineers, New York District, New York, NY. Draft Release. December
1992.
7. EPA/USACE. 1991. Evaluation of Dredged Material Proposed for
Ocean Disposal-Testing Manual. U.S. Environmental Protection Agency,
Washington, DC, and U.S. Army Corps of Engineers, Washington, DC. EPA-
503/8-91/001. February 1991.
8. EPA Region 1/USACE NAE. 1991. Guidance for Performing Tests on
Dredged Material Proposed for Ocean Disposal. U.S. Army Corps of
Engineers, New England District and U.S. Environmental Protection
Agency, Region 1, Boston, MA. Draft Release. December 1991.
9. Long Island Sound Study. 1994. Comprehensive Conservation and
Management Plan for Long Island Sound. Long Island Sound Management
Conference. September 1994.
10. NY DEC and CT DEP. 2000. A total maximum daily load analysis to
achieve water quality standards for dissolved oxygen in Long Island
Sound. Prepared in conformance with section 303(d) of the Clean Water
Act and the Long Island Sound Study. New York State Department of
Environmental Conservation, Albany, NY and Connecticut Department of
Environmental Protection, Hartford, CT. December 2000.
J. Statutory and Executive Order Reviews
1. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the
Agency must determine whether its regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(A) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local or tribal governments or communities;
(B) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(C) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(D) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this proposed action is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is therefore not subject to OMB review.
2. Paperwork Reduction Act (PRA)
Revised in 1995, the PRA is managed by the Office of Management and
Budget through its approval of Information Collection Requests (ICRs)
submitted by federal agencies. The statute was written and revised to
reduce the information collection burden on the public.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a request for the collection
of information; search data sources; complete and review the collection
of information; and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a request for the collection of information unless it
displays a currently valid OMB control number. The OMB control numbers
for EPA's regulations are listed in 40 CFR part 9.
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,
et seq.) because it would not require persons to obtain, maintain,
retain, report, or publicly disclose information to or for a federal
agency.
3. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act, or any
other statute, unless the agency certifies that the rule will not have
a significant economic impact on a substantial number of small
entities. For the purposes of assessing the impacts of today's rule on
small entities, a small entity is defined as: (1) A small business
based on the Small Business Administration's (SBA) size standards; (2)
a small governmental jurisdiction that is the government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any
[[Page 32516]]
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field. Examples of the types of small entities
that could be subject to today's rule include small marinas and small
municipal governments that might be responsible for conducting dredging
and dredged material disposal (see section B, Potentially Affected
Entities, above).
EPA has determined that this action will not have a significant
impact on a substantial number of small entities. These dredged
material disposal site designations under the MPRSA are only relevant
for dredged material disposal projects subject to the MPRSA. Non-
federal projects involving 25,000 cubic yards or less of material are
not subject to the MPRSA and, instead, are regulated under CWA section
404. This action will, therefore, have no effect on such projects,
other than perhaps to reduce expenses for such entities by providing a
wealth of environmental data for use in determining whether disposing
of dredged material from particular small, non-federal projects would
be appropriate at the CLIS or WLIS disposal sites. ``Small entities''
under the RFA, as amended by SBREFA, are most likely to be involved
with smaller projects not covered by the MPRSA. Therefore, EPA does not
believe a substantial number of small entities will be affected by
today's rule.
EPA also does not expect this action to have a significant effect
on any small entities that are affected by the rule (i.e., small, non-
federal entities that propose to dispose of more than 25,000 cubic
yards of material). These disposal site designations have the effect of
providing long-term, environmentally acceptable open-water disposal
options for dredged material subject to the MPRSA. These disposal
options can only be utilized, however, by projects whose material meets
the MPRSA sediment testing criteria and for which there is no
practicable alternative means of management with less adverse
environmental effects. See 40 CFR part 227, subparts A, B and C.
While dredged material disposal has been carried out under these
requirements in the past in Long Island Sound, it has occurred at sites
selected for short-term use by the Corps under its MPRSA section 103(b)
site selection authority, rather than at sites designated for long-term
use by EPA. Use of the Corps-selected site in the central region of the
Sound has presently expired, and use of the site in western region of
the Sound may only continue for five more years. In other words,
without these designations, there would be no presently authorized
open-water disposal site in the central region of the Sound and the
sole site in the western region would only be available for five more
years of use. Thus, if anything, designating these sites is likely to
reduce expenses for small entities by providing cost-effective dredged
material disposal options for appropriate projects, as well as by
reducing expenses by providing current environmental information that
can contribute to the environmental evaluation of future projects.
EPA recognizes that the Corps, the states, and EPA have agreed to
try to develop a dredged material management plan (DMMP) for Long
Island Sound and that EPA has placed restrictions on the use of the
disposal sites for MPRSA projects, including termination of site use,
if the DMMP is not completed in a timely way. EPA also recognizes that
a goal of the DMMP will be to try to identify practicable alternatives
to open-water disposal that may have less adverse environmental
impacts, provided that they do not add an unreasonable amount of cost.
EPA also recognizes that there will be interim procedures for
identifying and utilizing practicable alternatives to ocean disposal,
which will apply while the DMMP is being developed. Taking the site
restrictions into account, EPA still does not believe this action will
have a significant effect on a substantial number of small entities for
four reasons. First, as explained above, EPA has concluded that this
rule will not have a significant impact on a substantial number of
small entities. Second, without these site designations there are no
open-water sites at all authorized for long-term use under the MPRSA.
Therefore, the designations do not impose adverse impact to the
situation without the designation, but rather provide additional
dredged material management options. Third, EPA expects that the DMMP
will take into account reasonable incremental costs for small entities
in developing any procedures and standards related to the assessment
and use of alternative management methods and will not, therefore,
result in significant economic effects to them. In this regard, it must
also be remembered that the existing MPRSA regulations already require
that alternatives to open-water disposal be utilized if there are
practicable alternatives with less adverse environmental effects.
Alternatives are defined to be practicable when they involve
``reasonable incremental cost and energy expenditures, which need not
be competitive with the costs of ocean dumping, taking into account the
environmental benefits derived from such activity * * * (40 CFR
227.16(b)). Fourth, before amending the site restrictions to reflect
the DMMP, EPA will consider any public comments, including on whether
there is continuing compliance with the RFA at that time.
Therefore, EPA certifies that this action will not have a
significant economic impact on a substantial number of small entities.
4. The Unfunded Mandates Reform Act and Executive Order 12875
Title II of the Unfunded Mandates Reform Act (UMRA), Public Law
104-4, establishes requirements for federal agencies to assess the
financial burden of complying with their regulatory actions on state,
local, and tribal governments and the private sector. Under section 202
of the UMRA, EPA generally must prepare a written statement, including
a cost-benefit analysis, for proposed and final rules with ``Federal
Mandates'' that may result in expenditures to state, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires EPA to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the final
rule an explanation of why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this action contains no federal mandates
(under the regulatory provisions of Title II of the UMRA) for state,
local and tribal governments or the private sector. It imposes no new
enforceable duty on
[[Page 32517]]
any state, local or tribal governments or the private sector. Moreover,
it will not result in expenditures by state, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Rather, this action makes presently
unavailable long-term disposal sites available as potential options for
future use if certain conditions are met. Similarly, EPA also has
determined that this action contains no regulatory requirements that
might significantly or uniquely affect small government entities. Thus,
the requirements of sections 203 and 205 of the UMRA do not apply to
this rule.
5. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' are defined in the
Executive Order to include regulations that have ``substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.''
The final rule does not have federalism implications within the
meaning of the Executive Order. It will not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. This final rule designates open-water sites
in Long Island Sound for the potential disposal of dredged material and
sets certain conditions on such use. This proposed action neither
creates new obligations for, nor alters existing authorizations of, any
state, local, or other governmental entities. Thus, Executive Order
13132 does not apply to this rule.
Although section 6 of the Executive Order 13132 does not apply to
this final rule, EPA did extensively consult with representatives of
state and local governments in developing this rule. In addition, and
consistent with Executive Order 13132 and EPA policy to promote
communications between EPA and state and local governments, EPA
specifically solicited comments on the proposed rule from state and
local officials and met with such officials on many occasions. The
nature of these communications is discussed elsewhere in this preamble
and in EPA's FEIS and supporting administrative record.
6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 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.'' ``Policies that have Tribal
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian Tribes, on the relationship between the federal government and
the Indian Tribes, or on the distribution of power and responsibilities
between the federal government and Indian Tribes.''
The final rule does not have Tribal implications, as specified in
Executive Order 13175. The designation of these disposal sites will not
have substantial direct effects on Indian Tribes, on the relationship
between the federal government and Indian Tribes, or on the
distribution of power and responsibilities between the federal
government and Indian Tribes, as specified in Executive Order 13175.
This final rule designates open-water dredged material disposal sites
and does not establish any regulatory policy with tribal implications.
Thus, Executive Order 13175 does not apply to this rule.
Although Executive Order 13175 does not apply to this rule, EPA
consulted with tribal officials in developing this rule, particularly
as it relates to potential impacts to historic or cultural resources.
EPA specifically solicited additional comment on the proposed rule from
tribal officials and invited tribes in the area around Long Island
Sound to consider participating as ``cooperating agencies'' in
development of the EIS. The Eastern Pequots and Narragansetts decided
to participate in that role.
7. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe might have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health and
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This final rule is not subject to this Executive Order because it
is not economically significant as defined in Executive Order 12866,
and because EPA does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate effect on children. The designation of open-water,
dredged material disposal sites in Long Island Sound does not authorize
the disposal of any such material. Such authorizations are granted on a
project-specific basis, and material that is determined to be
unsuitable for ocean disposal--that is, it may cause unacceptable,
adverse environmental impacts--would not be allowed to be disposed at
these sites. Long-term monitoring of these sites, which have been used
under short-term site selections since the early 1980s, has documented
minimal adverse impacts to the marine environment, and by extension,
public health. Therefore, it is not subject to Executive Order 13045.
8. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This final rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866. Although
Executive Order 13211 does not apply to this rule, the designation of
dredged material disposal sites will facilitate shipping of energy-
related products by providing an environmentally acceptable, cost-
effective option for the disposal of material dredged from navigation
channels and harbors in the central and western regions of Long Island
Sound. Furthermore, by providing a potential dredged material
management option in the central and western regions of the Sound,
energy expenditures for hauling dredged material for disposal or reuse
over water or land will be minimized.
9. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note), directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g.,
[[Page 32518]]
materials specifications, test methods, sampling procedures, and
business practices) that are developed or adopted by voluntary
consensus bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards. This final rule does not
involve the development of technical standards. Therefore, EPA did not
consider the use of any voluntary consensus standards and the Executive
Order does not apply to this action.
10. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each federal agency must conduct its programs,
policies, and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin.
No action from this final rule will have a disproportionately high
and adverse human health and environmental effect on any particular
segment of the population. In addition, this rule does not impose
substantial direct compliance costs on those communities. Accordingly,
the requirements of Executive Order 12898 do not apply.
11. 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 rule 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 rule 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 rule will be effective July 5, 2005.
12. Plain Language Directive
Executive Order 12866 requires each agency to write all rules in
plain language. EPA has written this final rule in plain language to
make this final rule easier to understand.
13. Executive Order 13158: Marine Protected Areas
Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of the Executive Order is to
protect the significant natural and cultural resources within the
marine environment, which means, ``those areas of coastal and ocean
waters, the Great Lakes and their connecting waters, and submerged
lands thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
EPA expects that this final rule will afford additional protection
of aquatic organisms at individual, population, community, or ecosystem
levels of ecological structures. Only suitable material under MPRSA
requirements, and for which there is no other practicable alternative
with less adverse environmental effects, will be allowed to be disposed
at the designated sites. Also, these sites will be monitored and
managed according to the SMMPs (Appendix J of the FEIS) and, as
discussed in the FEIS, use of the sites should not impact any marine
protected areas. In addition, EPA, the Corps, and other relevant
federal and state resource management agencies will meet annually to
discuss the management of these sites. Therefore, EPA expects today's
final rule will advance the objective of the Executive Order to protect
marine areas.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Dated: May 19, 2005.
Robert W. Varney,
Regional Administrator, EPA New England.
0
In consideration of the foregoing, EPA is amending part 228, chapter I
of title 40 of the Code of Federal Regulations as follows:
PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN
DUMPING
0
1. The authority citation for part 228 continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
0
2. Section 228.15 is amended by adding paragraphs (b)(4) and (b)(5) to
read as follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(b) * * *
(4) Central Long Island Sound Dredged Material Disposal Site
(CLIS).
(i) Location: Corner Coordinates (NAD 1983) 41[deg]9.5' N.,
72[deg]54.4' W.; 41[deg]9.5' N., 72[deg]51.5' W.; 41[deg]08.4' N.,
72[deg]54.4' W.; 41[deg]08.4' N., 72[deg]51.5' W.
(ii) Size: A 1.1 by 2.2 nautical mile rectangular area, about 2.42
square nautical miles in size.
(iii) Depth: Ranges from 56 to 77 feet (17 to 23.5 meters).
(iv) Primary use: Dredged material disposal.
(v) Period of use: Continuing use, except as provided in paragraph
(b)(4)(vi) of this section.
(vi) Restrictions: The designation in this paragraph (b)(4) sets
forth conditions for the use of Central Long Island Sound (CLIS) and
Western Long Island Sound (WLIS) Dredged Material Disposal Sites. These
conditions apply to all disposal subject to the MPRSA, namely all
federal projects and non-federal projects greater than 25,000 cubic
yards. All references to ``permittees'' shall be deemed to include the
Army Corps of Engineers (USACE) when it is authorizing its own dredged
material disposal from a USACE dredging project. The conditions for
this designation are as follows:
(A) Disposal shall be limited to dredged material from Long Island
Sound and vicinity.
(B) Disposal shall comply with conditions set forth in the most
recent approved Site Management and Monitoring Plan.
(C) Except as provided in paragraphs (b)(4)(vi)(D) and (E) of this
section, the disposal of dredged material at the CLIS and WLIS sites
pursuant to this designation shall not be allowed beginning eight (8)
years after July 5, 2005 unless a regional dredged material management
plan (DMMP) for Long Island Sound has been completed by the North
Atlantic Division of the USACE, in consultation with the State of New
York, State of Connecticut and EPA, with a goal of reducing or
eliminating the disposal of dredged material in Long
[[Page 32519]]
Island Sound, and the EPA thereafter amends this site designation to
incorporate procedures and standards that are consistent with those
recommended in the DMMP.\1\ Completion of the DMMP means finishing the
items listed in the work plan (except for any ongoing long-term
studies), including the identification of alternatives to open-water
disposal, and the development of procedures and standards for the use
of practicable alternatives to open-water disposal. If the completion
of the DMMP does not occur within eight years of July 5, 2005 (plus any
extensions under paragraphs (b)(4)(vi)(D) and (E) of this section), use
of the sites shall be prohibited. However, if the DMMP is thereafter
completed within one year, disposal of dredged material at the sites
may resume.
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\1\ If the EPA has acted in good faith to adopt substantially
all procedures and standards for the use of the sites and the use of
practicable alternatives to open-water disposal recommended in the
DMMP, termination of the use of the sites based on the EPA not
adopting all procedures and standards shall not occur unless a party
first files a petition with the EPA pursuant to item 7 setting forth
in detail each procedure or standard that the party believes the EPA
must adopt in order to be consistent with the DMMP, and the EPA has
an opportunity to act on the petition. Termination of the use of the
sites shall not occur if in response to a petition the EPA
determines that it has adopted substantially all procedures and
standards for the use of the sites and the use of practicable
alternatives to open-water disposal recommended in the DMMP, unless
and until otherwise directed by a court. Termination of the use of
the sites shall not occur based on not adopting a DMMP provision if
the DMMP provision is not consistent with applicable law.
Termination of the use of the sites shall not occur based on the EPA
not meeting the 60 and 120 day rulemaking deadlines set forth in
item 7, but use of the sites shall be suspended if the EPA misses
either deadline, until the EPA issues a final rule. Termination of
the use of the sites shall not occur based on the EPA adopting
procedures and standards which are stricter than the recommendations
of the DMMP.
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(D) The EPA may extend the eight-year deadline in paragraph
(b)(4)(vi)(C) of this section for any reasonable period (on one or more
occasions) if it obtains the written agreement of the USACE, the State
of Connecticut (Department of Environmental Protection) and the State
of New York (Department of State).
(E) The EPA may extend the eight-year deadline in paragraph
(b)(4)(vi)(C) of this section by up to one year (on one occasion only)
if it determines in writing that the parties participating in the
development of the DMMP have attempted in good faith to meet the
deadline, but that the deadline has not been met due to factors beyond
the parties' control (including funding). Such an extension may be in
addition to any extension(s) granted under paragraph (b)(4)(vi)(D) of
this section.
(F) The EPA will conduct an annual review of progress in developing
the DMMP. If the EPA finds that the DMMP is being unreasonably delayed
by one or more parties, the EPA reserves the right to take the
following actions as appropriate: (1) Suspend use of the sites even
prior to the deadlines established in paragraphs (b)(4)(vi)(C) through
(E) of this section through an amended rulemaking or (2) Exercise
through rulemaking its statutory and regulatory authorities regarding
designation of ocean disposal sites.
(G) Upon completion of the DMMP, disposal of dredged material at
the designated sites pursuant to the designation in this paragraph
(b)(4) shall be allowed only from permittees that comply with
procedures and standards consistent with the recommendations of the
DMMP, and consistent with applicable law, for the use of the sites and
for the use of practicable alternatives to open-water disposal, so as
to reduce or eliminate the disposal of dredged material in Long Island
Sound. Upon the completion of the DMMP, the EPA will within 60 days
propose and within 120 days (subject to consideration of public
comments) issue a legally binding amendment to the designation in this
paragraph (b)(4) describing all such procedures and standards and
specifying that they must be complied with as part of this
designation.\2\ If any party (or the EPA on its own initiative) is not
satisfied that the final DMMP recommends sufficient procedures and
standards to reduce or eliminate disposal of dredged material in Long
Island Sound to the greatest extent practicable, or if any party is not
satisfied with the EPA's amendment adopting such procedures and
standards, the party may petition the EPA to do a rulemaking to amend
the designation to establish different or additional standards. The EPA
will act on any such petition within 120 days.
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\2\ The EPA must preserve its discretion, in response to public
comments, not to adopt such an amendment to this designation. The
EPA understands that the State of New York has reserved its rights
to revive its objection to this designation if the DMMP procedures
and standards are not adopted.
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(H) Disposal not subject to the restrictions in paragraphs
(b)(4)(vi)(C) through (G) or (b)(4)(vi)(I) of this section shall be
permitted only for materials resulting from currently authorized or
permitted dredging projects at Norwalk, Rye and New Rochelle. Such
disposal must meet all applicable statutory and regulatory
requirements. All phases of any of these project must be initiated
within four (4) years from the date of the designation, or the project
will become subject to paragraph (b)(4)(vi)(I) of this section.
(I) Except for the projects covered by paragraph (b)(4)(vi)(H) of
this section and until completion of the DMMP, disposal of dredged
material at the designated sites pursuant to the designation in this
paragraph (b)(4) shall be allowed only if, after full consideration of
recommendations provided by an established Regional Dredging Team \3\
(RDT), the USACE finds (and the EPA does not object to such finding),
based on a fully documented analysis, that for a given dredging
project:
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\3\ A Regional Dredging Team (RDT) comprised of regulatory and
coastal policy specialists from state and federal agencies will be
formed.
---------------------------------------------------------------------------
(1) There are no practicable alternatives (as defined in 40 CFR
227.16(b)) to open-water disposal in Long Island Sound and that any
available practicable alternative to open-water disposal will be fully
utilized for the maximum volume of dredged material practicable;
(2) Determinations relating to paragraph (b)(4)(vi)(I)(1) of this
section will recognize that any alternative to open-water disposal may
add additional costs. Disposal of dredged material at the designated
sites pursuant to this paragraph (b)(4) shall not be allowed if a
practicable alternative is available. Any project subject to this
restriction must be permitted or authorized prior to the completion of
the DMMP and completed within two years after the completion of the
DMMP.
(J) Disposal shall be limited to dredged sediments that comply with
the Ocean Dumping Regulations.
(K) Disposal of dredged material at the designated sites pursuant
to the designation in this paragraph (b)(4) shall not be allowed for
any materials subject to a waiver under 33 U.S.C. 1413(d) unless, for
any project where a waiver is sought, the New England or New York
District of the USACE provides notification, by certified mail at least
thirty (30) days before making the waiver request, to the Governors of
the states of Connecticut and New York and the North Atlantic Division
of the USACE that it will be requesting a waiver.
(L) Transportation of dredged material to the sites shall only be
allowed when weather and sea conditions will not interfere with safe
transportation and will not create risk of spillage, leak or other loss
of dredged material in transit. No disposal trips shall be initiated
when the National Weather Service has issued a gale warning for local
waters during
[[Page 32520]]
the time period necessary to complete dumping operations.
(M) The parties participating in the DMMP will need to seek
additional funding in order to develop the DMMP. Nothing in the
designation in this paragraph (b)(4) or elsewhere guarantees that any
agency will be able to obtain funding for the DMMP. This designation
shall not be interpreted as or constitute a commitment that the United
States will obligate or expend funds in contravention of the Anti-
Deficiency Act, 31 U.S.C. 1341. Rather, the sole remedy for any failure
to meet the conditions specified in this paragraph (b)(4)(vi) shall be
the restriction of the authority to dispose of dredged material, as
provided in this paragraph (b)(4).
(N) Nothing in the designation in this paragraph (b)(4) or
elsewhere precludes the EPA from exercising its statutory authority to
designate other ocean disposal sites, not subject to the restrictions
in paragraph (b)(4)(vi), or taking any subsequent action to modify the
site designation in paragraph (b)(4), provided that the EPA makes any
such designation or takes such subsequent action through a separate
rulemaking in accordance with all applicable legal requirements.
Nothing in this designation shall be interpreted to restrict the EPA's
authorities under the MPRSA or the implementing regulations or to amend
the implementing regulations.
(5) Western Long Island Sound Dredged Material Disposal Site
(WLIS).
(i) Location: Corner Coordinates (NAD 1983) 41[deg]00.1' N.,
73[deg]29.8' W.; 41[deg]00.1' N., 73[deg]28.1' W.; 40[deg]58.9' N.,
73[deg]29.8' W.; 40[deg]58.9' N., 73[deg]28.1' W.
(ii) Size: A 1.2 by 1.3 nautical mile rectangular area, about 1.56
square nautical miles in size.
(iii) Depth: Ranges from 79 to 118 feet (24 to 36 meters).
(iv) Primary use: Dredged material disposal.
(v) Period of use: Continuing use except as provided in paragraph
(b)(5)(vi) of this section.
(vi) Restrictions: See 40 CFR 228.15(b)(4)(vi).
* * * * *
[FR Doc. 05-10847 Filed 6-2-05; 8:45 am]
BILLING CODE 6560-50-P