[Federal Register Volume 75, Number 82 (Thursday, April 29, 2010)]
[Rules and Regulations]
[Pages 22524-22532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9982]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[EPA-R10-OW-2010-0086; FRL-9143-2]
Ocean Dumping; Designation of Ocean Dredged Material Disposal
Sites Offshore of the Siuslaw River, Oregon
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This action finalizes the designation of the Siuslaw River
ocean dredged material disposal sites pursuant to the Marine
Protection, Research and Sanctuaries Act, as amended (MPRSA). The new
sites are needed primarily to serve the long-term need for a location
to dispose of material dredged from the Siuslaw River navigation
channel, and to provide a location for the disposal of dredged material
for persons who have received a permit for such disposal. The newly
designated sites will be subject to ongoing monitoring and management
to ensure continued protection of the marine environment.
[[Page 22525]]
DATES: Effective Date: This final rule will be effective June 1, 2010.
ADDRESSES: For more information on this final rule, Docket ID No. EPA-
R10-OW-2010-0086 use one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for accessing the docket and materials related to this
final rule.
E-mail: [email protected].
Mail: Jessica Winkler, U.S. Environmental Protection
Agency, Region 10, Office of Ecosystems, Tribal and Public Affairs
(ETPA-088), Environmental Review and Sediment Management Unit, 1200
Sixth Avenue, Suite 900, Seattle, Washington 98101.
Publicly available docket materials are available either
electronically at http://www.regulations.gov or in hard copy during
normal business hours for the regional library at the U.S.
Environmental Protection Agency, Region 10, Library, 10th Floor, 1200
Sixth Avenue, Suite 900, Seattle, Washington 98101. For access to the
documents at the Region 10 Library, contact the Region 10 Library
Reference Desk at (206) 553-1289, between the hours of 9 a.m. to 12
p.m., and between the hours of 1 p.m. to 4 p.m., Monday through Friday,
excluding legal holidays, for an appointment.
FOR FURTHER INFORMATION CONTACT: Jessica Winkler, U.S. Environmental
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public
Affairs (ETPA-088), Environmental Review and Sediment Management Unit,
1200 Sixth Avenue, Suite 900, Seattle, Washington 98101, phone number:
(206) 553-7369, e-mail: [email protected].
SUPPLEMENTARY INFORMATION: On February 4, 2010, EPA published a
proposed rule at 75 FR 5708 to designate two new ocean dredged material
disposal sites near the mouth of the Siuslaw River, Oregon. EPA
received three comments on the proposed rule.
1. Potentially Affected Persons
Persons potentially affected by this action include those who seek
or might seek permits or approval by EPA to dispose of dredged material
into ocean waters pursuant to the Marine Protection, Research, and
Sanctuaries Act, as amended (MPRSA), 33 U.S.C. 1401 to 1445. EPA's
final action would be relevant to persons, including organizations and
government bodies, seeking to dispose of dredged material in ocean
waters offshore of the Siuslaw River, Oregon. Currently, the U.S. Army
Corps of Engineers (Corps) would be most affected by this action.
Potentially affected categories and persons include:
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Category Examples of potentially regulated persons
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Federal Government........................... U.S. Army Corps of Engineers Civil Works Projects, and other
Federal Agencies.
Industry and General Public.................. Port Authorities, Marinas and Harbors, Shipyards and Marine
Repair Facilities, Berth Owners.
State, local and Tribal governments.......... Governments owning and/or responsible for ports, harbors, and/or
berths, Government agencies requiring disposal of dredged
material associated with public works projects.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding persons likely to be affected by this
action. For any questions regarding the applicability of this action to
a particular person, please refer to the contact person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
2. Background
a. History of Disposal Sites Offshore of the Siuslaw River, Oregon
Three ocean dredged material disposal sites, an Interim Site and
two selected sites were used by the U.S. Army Corps of Engineers
(Corps) for the disposal of sediments dredged from the Siuslaw River
navigation project. The ``Interim Site,'' former Site A, was included
in the list of approved interim ocean disposal sites for dredged
material in the Federal Register in 1977 (42 FR 2461), a status
superseded by later statutory changes to the MPRSA. Mounding at Site A
and concern over the potential for ocean currents to move sediments
from Site A back into the dredged channel resulted in a selection of
disposal Sites B and C by the Corps pursuant to Section 103 of the
MPRSA. That authority allows the Corps to select a site or sites for
disposal when a site has not been designated by EPA. The selection of
Sites B and C was intended to reduce potential hazards associated with
mounding at Site A. The selection of Sites B and C was also intended to
increase long-term disposal site capacity near the mouth of the Siuslaw
River. EPA concurred on the selection and approved the Corps' request
to continue to use Sites B and C through the end of the 2009 dredging
season. To provide for sufficient disposal capacity over the long term,
EPA proposed to designate two sites, a North Site and a South Site, for
the ocean disposal of dredged material near the Siuslaw River in the
vicinity of former Sites A, B and C. Those proposed Sites are finalized
in this action.
b. Location and Configuration of Siuslaw River Ocean Dredged Material
Disposal Sites
This action finalizes the designation of two Siuslaw River ocean
dredged material sites to the north and south, respectively, of the
mouth of the Siuslaw River. The coordinates, listed below, and Figure
1, below, show the location of the two Siuslaw River ocean dredged
material disposal sites (Siuslaw River ODMD Sites, North and South
Sites, or Sites). The configuration of the North Site is expected to
allow dredged material disposed in shallower portions of the Site to
naturally disperse into the littoral zone and augment shoreline
building processes. This final designation of the Siuslaw River ODMD
Sites will allow EPA to adaptively manage the Sites to avoid creating
mounding conditions that could contribute to adverse impacts to
navigation.
The coordinates for the two Siuslaw River ODMD Sites are, in North
American Datum 83 (NAD 83):
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North Siuslaw ODMD Site South Siuslaw ODMD Site
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44[deg] 01[min] 31.03[sec] N, 124[deg] 10[min] 44[deg] 00[min] 46.72[sec] N, 124[deg] 10[min] 26.55[sec] W
12.92[sec] W.
44[deg] 01[min] 49.39[sec] N, 124[deg] 10[min] 44[deg] 01[min] 06.41[sec] N, 124[deg] 10[min] 24.45[sec] W
02.85[sec] W.
44[deg] 01[min] 31.97[sec] N, 124[deg] 09[min] 44[deg] 01[min] 04.12[sec] N, 124[deg] 09[min] 43.52[sec] W
01.86[sec] W.
44[deg] 01[min] 13.45[sec] N, 124[deg] 09[min] 44[deg] 00[min] 44.45[sec] N, 124[deg] 09[min] 45.63[sec] W
11.41[sec] W.
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[[Page 22526]]
The two Sites are situated in approximately 30 to 125 feet of water
located to the north and south of the entrance to the Siuslaw River on
the southern Oregon Coast (see Figure 1). The dimensions of the Sites
are 4,800 by 2,000 feet and 3,000 by 2,000 feet, respectively.
BILLING CODE 6560-50-P
[GRAPHIC] [TIFF OMITTED] TR29AP10.000
BILLING CODE 6560-50-C
[[Page 22527]]
c. Management and Monitoring of the Sites
The final Siuslaw Sites are expected to receive sediments dredged
by the Corps to maintain the Federally authorized navigation project at
the Siuslaw River, Oregon and dredged material from other persons who
have obtained a permit for the disposal of dredged material at the
Sites. All persons using the Sites are required to follow the final
Site Management and Monitoring Plan (SMMP) for the Sites. The SMMP
finalized in this action includes management and monitoring
requirements to ensure that dredged materials disposed at the Sites are
suitable for disposal in the ocean and that adverse impacts of
disposal, if any, are addressed to the maximum extent practicable. The
final SMMP for the Siuslaw River Sites also addresses management of the
Sites to ensure adverse mounding does not occur and to ensure that
disposal events are timed to minimize interference with other uses of
ocean waters in the vicinity of the proposed Sites.
d. MPRSA Criteria
EPA assessed the Sites against the criteria of the MPRSA, with
particular emphasis on the general and specific regulatory criteria of
40 CFR part 228 to determine that the final Site designations satisfied
those criteria.
General Criteria (40 CFR 228.5)
(1) Sites must be selected to minimize interference with other
activities in the marine environment, particularly avoiding areas of
existing fisheries or shellfisheries, and regions of heavy commercial
or recreational navigation (40 CFR 228.5(a)).
EPA reviewed the potential for the Sites to interfere with
navigation, recreation, shellfisheries, aquatic resources, commercial
fisheries, protected geologic features, and cultural and/or
historically significant areas and found low potential for conflicts.
The final Sites are located close to the approach to the Siuslaw River
entrance channel but are unlikely to cause interference with navigation
or other uses near the mouth of the Siuslaw River provided close
communication and coordination is maintained with other users, vessel
traffic control and the U.S. Coast Guard (USCG). Based on the past
history of fishing and disposal operations near the mouth of the
Siuslaw River, use conflicts are not expected to occur. There is the
potential for other recreational users, for example, surfers, boaters,
boarders, and divers, to use the near-shore area in the vicinity of the
Sites, but EPA does not expect disposal operations at the Sites to
conflict with recreationists. The final SMMP outlines site management
objectives, including minimizing interference with other uses of the
ocean. Should a site use conflict be identified, it is anticipated that
site use would be modified according to the SMMP to minimize that
conflict.
(2) Sites must be situated such that temporary perturbations to
water quality or other environmental conditions during initial mixing
caused by disposal operations would be reduced to normal ambient levels
or undetectable contaminant concentrations or effects before reaching
any beach, shoreline, marine sanctuary, or known geographically limited
fishery or shellfishery (40 CFR 228.5(b)).
Based on EPA[min]s review of modeling, monitoring data, analysis of
sediment quality, and history of use, the primary impact of disposal
activities on water quality is expected to be temporary turbidity
caused by the physical movement of sediment through the water column.
All dredged material proposed for disposal will be evaluated according
to the ocean dumping regulations at 40 CFR 227.13 and guidance
developed by EPA and the Corps. In general, dredged material which
meets the criteria under 40 CFR 227.13(b) is deemed environmentally
acceptable for ocean dumping without further testing. Dredged material
which does not meet the criteria of 40 CFR 227.13(b) must be further
tested as required by 40 CFR 227.13(c).
Disposal of suitable material meeting the regulatory criteria and
deemed environmentally acceptable for ocean dumping will be allowed at
the Sites. Most of the dredged material to be disposed of at the Sites
is expected to come from the entrance channel, where material is
predominantly sand (approximately 97%), while a small amount of
material (up to 3%) would be classified as fine-grained. Based on
modeling work performed by the Corps, the coarser (sandy) material is
expected to settle out of the water column within a few minutes of
disposal while the fine-grained material is expected to settle out of
the water column less rapidly. No increase in turbidity is expected to
be measurable at the beach.
(3) The sizes of disposal sites will be limited in order to
localize for identification and control any immediate adverse impacts,
and to permit the implementation of effective monitoring and
surveillance to prevent adverse long-range impacts. Size,
configuration, and location are to be determined as part of the
disposal site evaluation (40 CFR 228.5(d)).
EPA sized the final Sites to meet this criterion. The footprints of
the Sites are based on the presumed northerly movement of coastal
littoral material over the course of the yearly dredging and disposal
cycle and are needed to optimize the dispersal of material into the
active littoral zone, limit wave effects due to mounding, and keep
material from reentering the navigation channel to the south. Use of
the shallower portion of the North Site will facilitate increased
sediment transport thereby increasing long-term site capacity.
Preferential utilization of the shallow portions of the North Site also
meets the management goal of keeping material in the littoral system.
However, as seen in the 1977 Interim Site, mounding could occur if too
much material is placed too quickly in shallow water. EPA's designation
of the two Sites with deeper areas within each Site allows site
managers to be responsive to annual and long-term sediment transport
patterns. Effective monitoring of the Sites is necessary and required.
EPA requires annual bathymetric surveys to monitor each Site for
capacity and potential mounding concerns.
(4) 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)).
Disposal off the continental shelf would remove natural sediments
from the nearshore littoral transport system, a system that functions
with largely non-renewable quantities of sand in Oregon. Some of the
material disposed at the Sites is expected to be available to the
littoral system. Keeping this material in the littoral system with the
potential to sustain a dynamic equilibrium along the Oregon coast is
perceived as a benefit. The Sites incorporate historic disposal
locations within the footprint of each Site, but have been expanded to
allow more of the material to remain in the littoral system and allow
for increased site capacity.
Specific Criteria (40 CFR 228.6)
(1) Geographical Position, Depth of Water, Bottom Topography and
Distance from Coast (40 CFR 228.6(a)(1)).
The geographical position of each Site, including the depth, bottom
topography and distance from the coastline, has been chosen to minimize
adverse effects to the marine environment. As EPA understands the
currents at the Sites and the influence of those currents on the
movement of
[[Page 22528]]
material in the area, there is a high likelihood that some of the
material disposed at the Sites, especially within in the shallower
portion of the North site, will be transported to the littoral sediment
circulation system. Disposal at the Sites will be managed to allow for
maximum dispersal of material and minimal impact to each Site.
(2) Location in Relation to Breeding, Spawning, Nursery, Feeding,
or Passage Areas of Living Resources in Adult or Juvenile Phases (40
CFR 228.6(a)(2)).
The Sites are not located in exclusive breeding, spawning, nursery,
feeding or passage areas for adult or juvenile phases of living
resources. Near the Sites, a variety of pelagic and demersal fish
species, including salmon, as well as shellfish, are found. The benthic
fauna at the Sites is common to nearshore, sandy, wave-influenced
regions of the Pacific Coast in Oregon and Washington.
(3) Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3)).
The Sites, although located in close proximity to the Siuslaw River
navigation channel, and near the northern boundary of the Oregon Dunes
National Recreation Area, are located a sufficient distance offshore to
avoid adverse impacts to beaches and other amenity areas including two
public recreation areas located to the north of the Siuslaw River,
Heceta Beach Park and Harbor Vista Park. Transportation of dredges or
barges to and from the Sites to dispose of dredged material will be
coordinated to avoid disturbance of other activities near the Siuslaw
River entrance channel. There are no rocks or pinnacles in the vicinity
of either Site. The Sites are sized and located to provide long-term
capacity for the disposal of dredged material without causing any
impacts to the wave environment at, or near, the Sites. Site monitoring
and adaptive management are components of the final SMMP.
(4) Types and Quantities of Wastes Proposed to be Disposed of, and
Proposed Methods of Release, including Methods of Packing the Waste, if
any (40 CFR 228.6(a)(4)).
Dredged material found suitable for ocean disposal pursuant to the
regulatory criteria for dredged material, or characterized by chemical
and biological testing and found suitable for disposal into ocean
waters, will be the only material allowed to be disposed of at the
Sites. No material defined as ``waste'' under the MPRSA will be allowed
to be disposed of at the Sites. The dredged material to be disposed of
at the Sites will be predominantly marine sand, far removed from known
sources of contamination. Generally, disposal is expected to occur from
a hopper dredge, in which case, material will be released just below
the surface and the disposal vessel will be required to be under power
and to slowly transit the disposal location during disposal. This
method of release is expected to spread material at the Sites to
minimize mounding and to minimize impacts to the benthic community and
to species at the Sites at the time of a disposal event.
(5) Feasibility of Surveillance and Monitoring (40 CFR
228.6(a)(5)).
EPA expects monitoring and surveillance at the Sites to be feasible
and readily performed from small surface research vessels. The Sites
are accessible for bathymetric and side-scan sonar surveys. At a
minimum, annual bathymetric surveys will be conducted at each of the
Sites to confirm that no unacceptable mounding is taking place within
the Sites or in their immediate vicinity.
(6) Dispersal, Horizontal Transport and Vertical Mixing
Characteristics of the Area, Including Prevailing Current Direction and
Velocity, if any (40 CFR 228.6(a)(6)).
Dispersal, horizontal transport and vertical mixing characteristics
of the area at and in the vicinity of the Sites indicate that the
marine sands and fluvial gravels from the Siuslaw River distribute away
from the river mouth rapidly. The beaches do not show significant
accretion or loss. The bottom current records suggest a bias in
transport to the north. Fine grained material tends to remain in
suspension and to experience rapid offshore transport compared to other
sediment sizes. Sediment transport of sand-sized or coarser material
tends to move directly as bedload, but is occasionally suspended by
wave action near the seafloor. The Sites are not expected to change
these characteristics.
(7) Existence and Effects of Current and Previous Discharges and
Dumping in the Area (including Cumulative Effects) (40 CFR
228.6(a)(7)).
Portions of the two Sites were historically used for disposal
activity. Disposal of dredged material is not expected to result in
unacceptable environmental degradation at the Sites or in the vicinity
of the Sites, however mounding will be closely monitored in those
previously used portions and preferential use of the shallower portions
of the North Site is expected. The final SMMP includes monitoring and
adaptive management measures to address potential mounding issues.
(8) Interference with Shipping, Fishing, Recreation, Mineral
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR
228.6(a)(8)).
The Sites are not expected to interfere with shipping, fishing,
recreation or other legitimate uses of the ocean. Disposals at the
Sites will be managed according to the SMMP to minimize interference
with other legitimate uses of the ocean through careful timing and
staggering of disposals in the Sites. Commercial and recreational
fishing and commercial navigation are the primary concerns for which
such timing will be needed. EPA is not aware of any plans for mineral
extraction offshore of the Siuslaw River at this time. EPA would expect
to revise the SMMP if necessary in the event wave energy projects or
other renewable or traditional energy projects were proposed and
potential conflicts seemed likely. Fish and shellfish culture
operations are not under consideration for the area. There are no known
areas of special scientific importance in the vicinity of the Sites.
(9) The Existing Water Quality and Ecology of the Sites as
Determined by Available Data or Trend Assessment of Baseline Surveys
(40 CFR 228.6(a)(9)).
EPA did not identify any potential adverse water quality impacts
from ocean disposal of dredged material at the Sites based on water and
sediment quality analyses conducted in the study area of the Sites and
based on experience with past disposals near the mouth of the Siuslaw
River. Fisheries and benthic data show the ecology of the area to be
that of a mobile sand community typical of the Oregon Coast.
(10) Potentiality for the Development or Recruitment of Nuisance
Species in the Disposal Site (40 CFR 228.6(a)(10)).
Nuisance species, considered as any undesirable organism not
previously existing at a location, have not been observed at, or in the
vicinity of, the Sites. Material expected to be disposed at the Sites
will be uncontaminated marine sands similar to the sediment present at
the Sites. The final SMMP includes biological monitoring requirements,
which will act to identify any nuisance species and allow EPA to direct
special studies and/or operational changes to address the issue if it
arises.
(11) Existence at or in Close Proximity to the Site of any
Significant Natural or Cultural Feature of Historical Importance (40
CFR 228.6(a)(11)).
No significant cultural features were identified at, or in the
vicinity of, the Sites. EPA coordinated with Oregon's State Historic
Preservation Officer and with Tribes in the vicinity of the Sites to
identify any cultural features. No cultural features were identified.
No
[[Page 22529]]
shipwrecks were observed or documented within the Sites or their
immediate vicinity.
3. Response to Comments
EPA received three comments on the proposed rule. All three
comments supported the Site designations. One commenter asked whether
the Sites could be extended to run parallel to the coastline in order
to create a ``speedbump'' resulting in decreased wave energy and
erosion on the beach. The final Sites include shallow areas (less than
50 ft), where more material is expected to remain in the littoral
system, thereby potentially decreasing potential beach erosion. The
creation of a nearshore ``speedbump'' or berm would dissipate wave
energy reaching the beach, but would increase the wave height at the
berm, potentially creating an unacceptable safety risk. The same
commenter asked whether the sandy dredged material could be used to
restore an eroded beach rather than be disposed in the Sites. The sandy
dredged material in the vicinity of these Sites is already found in
abundance onshore in the nearby Oregon Dunes Recreation Area and
onshore dune fields. No eroded beaches in the immediate vicinity of the
Sites for which this material is needed have been identified at this
time.
4. Environmental Statutory Review--National Environmental Policy Act
(NEPA); Magnuson-Stevens Act (MSA); Marine Mammal Protection Act
(MMPA); Coastal Zone Management Act (CZMA); Endangered Species Act
(ESA); National Historic Preservation Act (NHPA)
a. NEPA
Section 102 of the National Environmental Policy Act of 1969, as
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to
prepare an Environmental Impact Statement (EIS) for major Federal
actions significantly affecting the quality of the human environment.
NEPA does not apply to EPA designations of ocean disposal sites under
the MPRSA because the courts have exempted EPA's actions under the
MPRSA from the procedural requirements of NEPA through the functional
equivalence doctrine. EPA has, by policy, determined that the
preparation of non-EIS NEPA documents for certain EPA regulatory
actions, including actions under the MPRSA, is appropriate. EPA's
``Notice of Policy and Procedures for Voluntary Preparation of NEPA
Documents,'' (Voluntary NEPA Policy), 63 FR 58045, (October 29, 1998),
sets out both the policy and procedures EPA uses when preparing such
environmental review documents. EPA's primary voluntary NEPA document
for designating the Sites is the final Siuslaw River, Oregon Ocean
Dredged Material Disposal Sites Evaluation Study and Environmental
Assessment, April 2010 (EA), jointly prepared by EPA and the Corps. The
final EA and its Technical Appendices, which are part of the docket for
this action, provided the threshold environmental review for
designation of the two Sites. The information from the EA was used
extensively in the discussion of the ocean dumping criteria.
b. MSA and MMPA
EPA prepared an essential fish habitat (EFH) assessment pursuant to
Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-Stevens Act, as
amended (MSA), 16 U.S.C. 1801 to 1891d, and submitted that assessment
to the National Marine Fisheries Service in July, 2009. NMFS reviewed
EPA's EFH assessment and an Endangered Species Act (ESA) Biological
Assessment and addendum thereto for purposes of the Marine Mammal
Protection Act of 1972, as amended (MMPA), 16 U.S.C. 1361 to 1389. NMFS
found that all potential adverse effects to ESA-listed marine mammals
from EPA's action to designate the Siuslaw Sites are discountable or
insignificant. Those findings are documented in the Biological Opinion
issued by NMFS to EPA on April 16, 2010. With respect to EFH, NMFS
concluded that disposal of dredged material will affect turbidity and
sedimentation levels and temporarily decrease prey and nursery
resources for pelagic organisms within the Sites during disposal
events. However, these effects are avoidable or can be offset or
mitigated through further evaluation of the effects and further study
of seasonal distribution, abundance and habitat use. These findings are
documented in the ``Magnuson-Stevens Fishery Conservation and
Management Act'' section of the Biological Opinion. NMFS included two
``conservation recommendations'' which encouraged an effects evaluation
and a study on distribution, abundance and habitat use. EPA will
respond in a separate written response to the NMFS recommendations.
c. CZMA
The Coastal Zone Management Act, as amended (CZMA), 16 U.S.C. 1451
to 1465, requires Federal agencies to determine whether their actions
will be consistent with the enforceable policies of approved State
programs. EPA prepared a consistency determination for the Oregon Ocean
and Coastal Management Program (OCMP), the approved State program in
Oregon, to meet the requirements of the CZMA and submitted that
determination to the Oregon Department of Land Conservation and
Development (DLCD) for review on January 19, 2010. On April 14, 2010,
DLCD concurred in writing with EPA that the Site designations were
consistent to the maximum extent practicable with the enforceable
policies of the OCMP.
d. ESA
The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to
1544, requires Federal agencies to consult with NMFS and the U.S. Fish
and Wildlife Service (USFWS) to ensure that any action authorized,
funded, or carried out by the Federal agency is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of any critical habitat. EPA prepared a Biological Assessment (BA) to
assess the potential effects of designating the two Siuslaw River Sites
on aquatic and wildlife species and submitted that BA to the NMFS and
USFWS in July, 2009. Subsequent to preparation of the BA, EPA prepared
an addendum to the BA, which was submitted in December, 2009. EPA found
that site designation does not have a direct impact on any of the
identified ESA species but also found that indirect impacts associated
with reasonably foreseeable future disposal activities had to be
considered. These indirect impacts included a short-term increase in
suspended solids and turbidity in the water column when dredged
material was disposed at the new Sites and an accumulation of material
on the ocean floor when material was disposed at the Sites. EPA
concluded that while its action may affect ESA-listed species, the
action would not be likely to adversely affect ESA-listed species or
critical habitat. On August 24, 2009, the USFWS concurred in writing
with EPA's finding that the Site designations would not likely
adversely affect ESA-listed species or critical habitat.
NMFS issued a Biological Opinion (BO) on April 21, 2010. NMFS
concluded that EPA's action is not likely to jeopardize the continued
existence of Oregon Coast (OC) coho salmon or southern green sturgeon
(Acipenser medirostris), or to destroy or adversely modify critical
habitat designated for green sturgeon. NMFS
[[Page 22530]]
also concluded that EPA's action would not likely adversely affect
southern green sturgeon, euchalon, eastern Stellar sea lions, blue
whales, fin whales, humpback whales, Southern Resident Killer whales,
marine turtle species, or critical habitat designated for southern
green sturgeon or proposed for green leatherback turtles. NMFS
concluded that dredging activities were not interrelated to EPA's
action. However, NMFS did make a finding that disposal of dredged
material at the Sites by the Corps, the anticipated primary user of the
Sites, was interrelated to EPA's action.
NMFS then focused its effects analysis on the effects of disposal
at the Sites. Looking solely to the effects of disposal of dredged
material at the Sites by the Corps from the Corps' Siuslaw River
Navigation project, NMFS estimated 19 juvenile OC coho salmon per year
were likely to be injured or killed by Corps activities. NMFS
acknowledged that EPA's action does not authorize or compel site use
and will not itself result in disposal of dredged material. NMFS found
that all incidental take will occur at the project-specific level.
Based on this finding, NMFS did not find a basis to provide a take
authorization in the current BO. NMFS stated that all take
authorization will occur in subsequent site-specific consultations.
Finally NMFS included two discretionary conservation
recommendations in the BO. The first recommendation suggested
collaborating with NMFS and the Corps on a methodology to evaluate the
effects of dredging and disposal on ESA-listed species. The second
recommendation suggested undertaking a study to determine seasonal
distribution, abundance, and habitat use of salmon, sturgeon, and
marine turtles in the nearshore within and near the contour of
designated ocean dredged material disposal sites. Such recommendations
are purely advisory in nature. EPA appreciates that collaboration on a
methodology could be helpful and supports NMFS and Corps efforts in
such an endeavor. EPA also appreciates that the study recommended by
NMFS could contribute to the scientific knowledge base but believes
that NMFS, the expert Federal agency on seasonal distribution,
abundance and habitat use would be better suited than EPA to carry out
such a study.
e. NHPA
EPA initiated consultation with the State of Oregon's Historic
Preservation Officer (SHPO) on November 24, 2009, to address the
National Historic Preservation Act, as amended (NHPA), 16 U.S.C. 470 to
470a-2, which requires Federal agencies to take into account the effect
of their actions on districts, sites, buildings, structures, or
objects, included in, or eligible for inclusion in the National
Register. EPA determined that no historic properties were affected, or
would be affected, by designation of the Sites. EPA did not find any
historic properties within the geographic area of the Sites. This
determination was based on an extensive review of the National Register
of Historic Districts in Oregon, the Oregon National Register list and
an assessment of cultural resources near the Sites. The SHPO concurred
by letter on December 10, 2009, that the project would have no affect
on any known cultural resources.
4. Statutory and Executive Order Reviews
This rule finalizes the designation of two ocean dredged material
disposal sites pursuant to Section 102 of the MPRSA. This action
complies with applicable executive orders and statutory provisions as
follows:
a. Executive Order 12866
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
b. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.,
because this rule does not establish or modify any information or
recordkeeping requirements for the regulated community.
c. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires Federal
agencies to prepare a regulatory flexibility analysis of any rule
subject to notice and comment rulemaking requirements under the
Administrative Procedure Act or any other statute unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. Small entities include small
businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this rule on small entities,
small entity is defined as: (1) A small business defined by the Small
Business Administration's size regulations at 13 CFR 121.201; (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district, or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. EPA determined that this action will not have a
significant economic impact on small entities because the final rule
will only have the effect of regulating the location of sites to be
used for the disposal of dredged material in ocean waters. After
considering the economic impacts of this final rule, I certify that
this action will not have a significant economic impact on a
substantial number of small entities.
d. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C.
1531 to 1538, for State, local, or Tribal governments or the private
sector. This action imposes no new enforceable duty on any State, local
or Tribal governments or the private sector. Therefore, this action is
not subject to the requirements of sections 202 or 205 of the UMRA.
This action is also not subject to the requirements of section 203 of
the UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small government entities. Those
entities are already subject to existing permitting requirements for
the disposal of dredged material in ocean waters.
e. Executive Order 13132: Federalism
This action does not have federalism implications. It does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among various levels of government, as specified
in Executive Order 13132. Thus, Executive Order 13132 does not apply to
this action.
f. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175 because the designation of the two ocean dredged
material disposal Sites will not have a direct effect on Indian Tribes,
on the relationship between the Federal government and Indian Tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian Tribes. Thus, Executive Order 13175 does
not apply to this action. Although Executive Order 13175 does not apply
to this action EPA consulted with Tribal
[[Page 22531]]
officials in the development of this action, particularly as the action
related to potential impacts to historic or cultural resources.
g. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885) as applying only
to those regulatory actions that concern health or safety risks, such
that the analysis required under section 5-501 of the Executive Order
has the potential to influence the regulation. This action is not
subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks. The
action concerns the designation of two ocean dredged material disposal
Sites and only has the effect of providing designated locations to use
for ocean disposal of dredged material pursuant to Section 102(c) of
the MPRSA.
h. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not subject to Executive Order 13211, ``Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355) because it is not a ``significant
regulatory action'' as defined under Executive Order 12866.
i. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272),
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus bodies. The NTTAA directs EPA to provide Congress,
through OMB, explanations when the Agency decides not to use available
and applicable voluntary consensus standards. This action includes
environmental monitoring and measurement as described in EPA's SMMP.
EPA will not require the use of specific, prescribed analytic methods
for monitoring and managing the designated Sites. The Agency plans to
allow the use of any method, whether it constitutes a voluntary
consensus standard or not, that meets the monitoring and measurement
criteria discussed in the SMMP.
j. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low Income Populations
Executive Order 12898 (59 FR 7629) establishes Federal executive
policy on environmental justice. Its main provision directs Federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States. EPA determined that this rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. EPA assessed the overall protectiveness of designating the
disposal Sites against the criteria established pursuant to the MPRSA
to ensure that any adverse impact to the environment will be mitigated
to the greatest extent practicable.
k. Congressional Review Act
The Congressional Review Act (CRA), 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 the 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 June 1, 2010.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Authority: This action is issued under the authority of Section
102 of the Marine Protection, Research, and Sanctuaries Act, as
amended, 33 U.S.C. 1401, 1411, 1412.
Dated: April 21, 2010.
Dennis J. McLerran,
Regional Administrator, Region 10.
0
For the reasons set out in the preamble, EPA amends chapter I, title 40
of the Code of Federal Regulations as follows:
PART 228--[AMENDED]
0
1. The authority citation for Part 228 continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
0
2. Section 228.15 is amended by adding paragraph (n)(14) to read as
follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(n) * * *
(14) Siuslaw River, OR--North and South Dredged Material Disposal
Sites
(i) North Siuslaw River Site
(A) Location:
44[deg]01[min]31.03[sec] N, 124[deg]10[min]12.92[sec] W,
44[deg]01[min]49.39[sec] N, 124[deg]10[min]02.85[sec] W,
44[deg]01[min]31.97[sec] N, 124[deg]09[min]01.86[sec] W,
44[deg]01[min]13.45[sec] N, 124[deg]09[min]11.41[sec] W.
(B) Size: Approximately 1.5 kilometers long and 0.6 kilometers
wide.
(C) Depth: Ranges from approximately 9 to 35 meters.
(D) Primary Use: Dredged material.
(E) Period of Use: Continuing Use.
(F) Restrictions: (1) Disposal shall be limited to dredged material
determined to be suitable for ocean disposal according to 40 CFR 227.13
from the Siuslaw River navigation channel and adjacent areas;
(2) Disposal shall be managed by the restrictions and requirements
contained in the currently-approved Site Management and Monitoring Plan
(SMMP);
(3) Monitoring, as specified in the SMMP, is required.
(ii) South Siuslaw River Site
(A) Location:
44[deg]00[min]46.72[sec] N, 124[deg]10[min]26.55[sec] W,
44[deg]01[min]06.41[sec] N, 124[deg]10[min]24.45[sec] W,
44[deg]01[min]04.12[sec] N, 124[deg]09[min]43.52[sec] W,
44[deg]00[min]44.45[sec] N, 124[deg]09[min]45.63[sec] W.
(B) Size: Approximately 0.9 kilometers long and 0.6 kilometers
wide.
(C) Depth: Ranges from approximately 24 to 38 meters.
(D) Primary Use: Dredged material.
(E) Period of Use: Continuing Use.
(F) Restrictions: (1) Disposal shall be limited to dredged material
determined to be suitable for ocean disposal according to 40 CFR
227.13, from the Siuslaw River navigation channel and adjacent areas;
(2) Disposal shall be managed by the restrictions and requirements
contained in the currently-approved Site Management and Monitoring Plan
(SMMP);
[[Page 22532]]
(3) Monitoring, as specified in the SMMP, is required.
* * * * *
[FR Doc. 2010-9982 Filed 4-28-10; 8:45 am]
BILLING CODE 6560-50-P