Ocean Dumping; Designation of Sites Offshore Palm Beach Harbor, FL and Offshore Port Everglades Harbor, FL, 2808-2817 [05-932]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 11 (Tuesday, January 18, 2005)]
[Rules and Regulations]
[Pages 2808-2817]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-932]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-7861-7]


Ocean Dumping; Designation of Sites Offshore Palm Beach Harbor, 
FL and Offshore Port Everglades Harbor, FL

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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[[Page 2809]]

SUMMARY: EPA today designates two Ocean Dredged Material Disposal Sites 
(ODMDSs) in the Atlantic Ocean offshore Southeast Florida, as EPA-
approved ocean dumping sites for the disposal of suitable dredged 
material. One site is located offshore Palm Beach Harbor, Florida and 
the other offshore Port Everglades Harbor, Florida. This action is 
necessary to provide acceptable ocean disposal sites for consideration 
as an option for dredged material disposal projects in the vicinity of 
Palm Beach Harbor and Port Everglades Harbor. These site designations 
are for an indefinite period of time, but the sites will be subject to 
continued monitoring to insure that unacceptable adverse environmental 
impacts do not occur. The interim designated ocean disposal sites 
located offshore Palm Beach Harbor and Port Everglades Harbor are de-
designated by this rule.

DATES: This rule is effective on February 17, 2005.

ADDRESSES: The administrative record for this action is available for 
public inspection at the following location: EPA Region 4, Sam Nunn 
Atlanta Federal Center, 61 Forsyth Street, SW., Atlanta, Georgia 30303.

FOR FURTHER INFORMATION CONTACT: Christopher J. McArthur, Ocean Dumping 
Program Coordinator, U.S. Environmental Protection Agency, Region 4, 
Coastal Section, 61 Forsyth Street, SW., Atlanta, GA 30303, telephone: 
(404)562-9391, e-mail: mcarthur.christopher@epa.gov.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 102(c) of the Marine Protection, Research, and Sanctuaries 
Act (MPRSA) of 1972, as amended, 33 U.S.C. 1401 et seq., gives the 
Administrator of EPA the authority to designate sites where ocean 
disposal may be permitted. On October 1, 1986, the Administrator 
delegated the authority to designate ocean disposal sites to the 
Regional Administrator of the Region in which the sites are located. 
These designations are being made pursuant to that authority.
    A list of ``Approved Interim and Final Ocean Dumping Sites'' was 
published on January 11, 1977 (42 FR 2461 et seq.). That list 
established the Palm Beach Harbor West, Palm Beach Harbor East and Port 
Everglades Harbor, FL ODMDSs on an interim basis. Due to the proximity 
of the interim sites to shore, the potential for adverse impacts to 
nearby coral reefs and the documented impacts at the Port Everglades 
Harbor interim ODMDS, these interim sites are no longer being used, 
were not considered for final designation and are being de-designated 
by this rule. The Palm Beach Harbor and Port Everglades Harbor ODMDS 
designations are being published as final rulemaking in accordance with 
Sec.  228.4(e) of the Ocean Dumping Regulations, which permits the 
designation of ocean disposal sites for dredged material.

B. Regulated Entities

    Entities potentially affected by this action are persons, 
organizations, or government bodies seeking to dispose of dredged 
material into ocean waters offshore Port Everglades Harbor and Palm 
Beach Harbor, Florida, under the MPRSA and its implementing 
regulations. This final rule is expected to be primarily of relevance 
to (a) parties seeking permits from the COE to transport dredged 
material for the purpose of disposal into ocean waters and (b) to the 
COE itself for its own dredged material disposal projects. Potentially 
regulated categories and entities that may seek to use the proposed 
dredged material disposal sites may include:

------------------------------------------------------------------------
                                             Examples of potentially
                Category                        regulated entities
------------------------------------------------------------------------
Federal Government.....................  U.S. Army Corps of Engineers
                                          Civil Works Projects, U.S.
                                          Navy, and Other Federal
                                          Agencies.
Industry and General Public............  Port Authorities, Marinas and
                                          Harbors, Shipyards, and Marine
                                          Repair Facilities, Berth
                                          Owners.
State, local and tribal governments....  Governments owning and/or
                                          responsible for ports,
                                          harbors, and/or berths,
                                          Government agencies requiring
                                          disposal of dredged material
                                          associated with public works
                                          projects.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. To determine whether your organization is affected by this 
action, you should carefully consider whether your organization is 
subject to the requirement to obtain an MPRSA permit in accordance with 
Section 103 of the MPRSA and the applicable regulations at 40 CFR Parts 
220 and 225, and whether you wish to use the sites subject to today's 
action. EPA notes that nothing in this final rule alters the 
jurisdiction or authority of EPA or the types of entities regulated 
under the MPRSA. 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. EIS Development

    Section 102(2)(C) of the National Environmental Policy Act (NEPA) 
of 1969, as amended, 42 U.S.C. 4321 et seq., requires that federal 
agencies prepare an Environmental Impact Statement (EIS) on proposals 
for legislation and other major federal actions significantly affecting 
the quality of the human environment. The object of NEPA is to build 
into the Agency decision making process careful consideration of all 
environmental aspects of proposed actions. While NEPA does not apply to 
EPA activities of this type, EPA has voluntarily committed to prepare 
NEPA documents in connection with ocean disposal site designations.(See 
63 FR 58045 [October 29, 1998], ``Notice of Policy and Procedures for 
Voluntary Preparation of National Environmental Policy Act (NEPA) 
Documents.'').
    EPA, in cooperation with the COE, has prepared a Final EIS (FEIS) 
entitled ``Final Environmental Impact Statement for Designation of the 
Palm Beach Harbor Ocean Dredged Material Disposal Site and the Port 
Everglades Harbor Ocean Dredged Material Disposal Site.'' On August 27, 
2004, the Notice of Availability (NOA) of the FEIS was published in the 
Federal Register (69 FR 52668 [August 27,2004]). Anyone desiring a copy 
of the FEIS may obtain one from the addresses given above. The wait 
period on the FEIS closed on September 27, 2004.
    EPA received eight comment letters on the FEIS. Six letters were 
supportive of the Port Everglades Harbor ODMDS designation based on 
need for the disposal site. The remaining two letters were from the 
State of Florida (the State) and the National Marine Fisheries Service 
(NMFS). The State's comments are discussed in the following paragraph

[[Page 2810]]

and the NMFS letter noted that the Essential Fish Habitat (EFH) 
consultation process was ongoing. No letters were critical of the FEIS.
    Pursuant to an Office of Water policy memorandum dated October 23, 
1989, EPA has evaluated the proposed site designations for consistency 
with the State's approved coastal management program. EPA has 
determined that the designation of the proposed sites is consistent to 
the maximum extent practicable with the State coastal management 
program, and submitted this determination to the State for review in 
accordance with EPA policy. In a letter dated October 22, 2004, the 
State concurred with this determination. In addition, as part of the 
NEPA process, EPA has consulted with the State regarding the effects of 
the dumping at the proposed sites on the State's coastal zone. EPA has 
taken the State's comments into account in preparing the FEIS for the 
sites, in determining whether the proposed sites should be designated, 
and in determining whether restrictions or limitations should be placed 
on the use of the sites. There were six main concerns raised by the 
State during consultation: (1) Placement of beach quality sand in the 
ODMDS; (2) the volume of material to be disposed and number of projects 
to use the sites; (3) the adequacy and recency of the data on the 
benthic habitat within and near the ODMDSs; (4) cumulative impacts of 
activities in the area; (5) potential adverse impacts to essential fish 
habitat and in particular the habitat of the blue-line tilefish; and 
(6) the potential of Florida Current spin-off eddies to transport 
disposed dredged material to important marine habitats. Concerns raised 
regarding use of suitable material for beach nourishment and other 
beneficial uses, were addressed in the FEIS. EPA concurs with the State 
regarding the use of suitable material for beach nourishment and other 
beneficial uses, in circumstances where this use is practical. The 
dredging projects currently proposed as well as potential future 
projects were discussed in more detail in the FEIS including a detailed 
discussion of anticipated project disposal volumes. Projects in excess 
of 500,000 cubic yards are not permitted at either ODMDS until 
additional capacity studies have been completed. The State was provided 
additional information on the benthic habitats within and adjacent to 
the ODMDSs including a copy of the video taken at the Port Everglades 
Harbor ODMDS and quantification of the habitat types within each ODMDS. 
A pre-disposal high resolution bathymetry requirement was added to the 
Site Management and Monitoring Plan (SMMP) to address the State's 
concerns regarding recency of data. The discussion of cumulative 
impacts was expanded in the FEIS including discussions of additional 
activities in the area as requested by the State. EFH concerns were 
addressed by EPA through the development of an EFH Assessment for each 
ODMDS. The EFH Assessments were coordinated with the NMFS and the State 
and were included as part of the FEIS. EPA concluded that the 
designations will not have a substantial individual or cumulative 
adverse impact on the EFH of managed species including tilefish. The 
State's concerns regarding the potential of Florida Current spin-off 
eddies to transport disposed dredged material to important marine 
habitats have been addressed through modeling of the disposal plumes by 
the COE. The State was involved in selecting input parameters for the 
model and in reviewing the draft results. In addition, EPA has an 
ongoing effort at the nearby Miami ODMDS to address concerns regarding 
the potential of Florida Current spin-off eddies to transport disposed 
dredged material to important near-shore marine habitats.
    In a letter dated June 7, 2004, the Florida Department of State 
agreed that it is unlikely that the proposed designations will affect 
any archaeological or historic resources listed, or eligible for 
listing, in the National Register of Historic Places, or otherwise of 
significance in accordance with the National Preservation Act of 1966 
(Pub. L. 89-6654), as amended.
    The action discussed in the FEIS is the permanent designation for 
continuing use of ocean disposal sites offshore Palm Beach Harbor and 
Port Everglades Harbor, Florida. The purpose of the action is to 
provide an environmentally acceptable option for the ocean disposal of 
dredged material. The need for the permanent designation of the ODMDSs 
is based on a demonstrated COE need for ocean disposal of maintenance 
dredged material from the Federal navigation projects in the Palm Beach 
Harbor and Port Everglades Harbor areas. The need for ocean disposal 
for these and other projects, and the suitability of the material for 
ocean disposal, will be determined on a case-by-case basis as part of 
the COE's process of issuing permits for ocean disposal and a public 
review process for its own actions. This will include an evaluation of 
disposal alternatives.
    For the ODMDSs, the COE and EPA would evaluate all federal dredged 
material disposal projects pursuant to the EPA criteria set forth in 
the Ocean Dumping Regulations (40 CFR 220-229) and the COE regulations 
(33 CFR 209.120 and 335-338). The COE issues MPRSA permits to 
applicants for the transport of dredged material intended for disposal 
after compliance with regulations is determined. EPA has the right to 
disapprove any ocean disposal project if, in its judgment, all 
provisions of MPRSA and the associated implementing regulations have 
not been met.
    The FEIS discusses the need for these site designations and 
examines ocean disposal site alternatives to the proposed actions. Non-
ocean disposal options have also been examined in the Disposal Area 
Studies for Palm Beach Harbor and Port Everglades Harbor, prepared by 
the COE and included as appendices to the FEIS. Alternatives to ocean 
disposal may include upland disposal within the port areas, or 
utilization of dredged material for beneficial use such as beach 
nourishment. The studies concluded that upland disposal in the 
intensively developed port areas is not feasible. Undeveloped areas 
within cost-effective haul distances are environmentally valuable in 
their own right. Beach placement is limited to predominately sandy 
material.
    The following ocean disposal alternatives were evaluated in the 
FEIS:

1. Alternative Sites on the Continental Shelf

    The continental shelf is narrow in the project area with a width of 
about 0.63 nautical mile (nmi). In the Palm Beach Harbor and Port 
Everglades Harbor nearshore area, hardgrounds supporting coral and 
algal communities are concentrated on the continental shelf. Disposal 
operations on the shelf could adversely impact this reef habitat. 
Therefore, following discussions with the State, a zone of siting 
feasibility for alternative ODMDSs was established eliminating from 
consideration any areas within 3 nmi of shore to avoid impact to 
natural reefs in the area. Consequently, no alternatives on the 
continental shelf were considered in the FEIS.

2. Designated Interim Sites

    Two interim sites were designated for Palm Beach Harbor, one of 
which is located nearshore at the port entrance and the other is 
located approximately 2.9 nmi (4.5 km) offshore. Following discussions 
with the State of Florida, a zone of siting feasibility was 
established, eliminating from consideration any areas within 3 nautical 
miles of shore to avoid direct

[[Page 2811]]

impact to natural reefs in the area. As a result, both Palm Beach 
Harbor interim sites were not considered further.
    The interim site for Port Everglades is located 1.7 nmi (3.2 km) 
offshore. A 1984 survey conducted by the EPA indicated that some damage 
to nearby inshore, hard bottom areas may have occurred due to the 
movement of fine grained material associated with disposed dredged 
material. In light of the survey findings, disposal at the Port 
Everglades interim site was discontinued and the site was eliminated 
from further consideration.

3. Alternative Sites Beyond the Continental Shelf

    Alternative sites beyond the continental shelf considered for Palm 
Beach Harbor include the 3 mile site, the 4.5 mile site and the 9 mile 
site. The 4.5 mile site is approximately one square mile in size and is 
located within the eastern portion of the 3 mile site. The 3 mile site 
is four square miles in size. The 3 mile site was dropped from further 
consideration in favor of the 4.5 mile site as it was determined that a 
site four square miles in size was not necessary at the depths at this 
location. The 9 mile site is 4 square miles in size. The deeper depths 
at the 9 mile site result in a larger disposal footprint, due to 
greater dispersion, necessitating a larger 4 square mile disposal site. 
Both the 4.5 mile site and the 9 mile site were considered in the FEIS.
    Alternative sites beyond the continental shelf considered for the 
Port Everglades Harbor include the 4 mile site and the 7 mile site. The 
4 mile site is approximately one square mile in size whereas the 7 mile 
site is two square miles in size. The deeper depths at the 7 mile site 
result in a larger disposal footprint necessitating a larger 4 square 
mile disposal site. Both the 4 mile site and the 7 mile site were 
considered in the FEIS.

4. No Action

    The No-Action Alternative would not provide acceptable EPA-
designated ocean disposal sites for use by the COE or other entities 
for the disposal of dredged material. Without final-designated disposal 
sites, the maintenance of the existing Federal Navigation Projects at 
Palm Beach Harbor and Port Everglades Harbor would be adversely 
impacted with subsequent effects upon the local and regional economies. 
Interim designated ODMDSs are not available. Alternative dredged 
material disposal methods would be required or the dredging and dredged 
material disposal discontinued. In the absence of an EPA designated 
ocean dredged material disposal site, the COE could select an 
alternative pursuant to section 103 of MPRSA. In such cases, the ocean 
site selected for disposal would be evaluated according to the criteria 
specified in section 102(a) of MPRSA and EPA's Ocean Dumping Regulation 
and Criteria 40 CFR part 228, and EPA concurrence is required. A site 
so selected can be used for five years without EPA designation, and can 
continue to be used for another five years under limited conditions. 
Accordingly, the No-Action alternative would not provide a long-term 
management option for dredged material disposal.

5. Preferred Alternative

    The site near Palm Beach Harbor selected for ODMDS designation is 
an area approximately 1 square nautical mile (nmi2) located 
east northeast of the Lake Worth Inlet and approximately 4.5 nmi 
offshore. The site at Port Everglades Harbor selected for ODMDS 
designation is an area approximately 1 nmi2 located east 
northeast of Port Everglades and approximately 4 nmi offshore. These 
sites were found to comply with the criteria for evaluation of ocean 
disposal sites established in 40 CFR Sections 228.5 and 228.6 of EPA's 
Ocean Dumping Regulations. No significant impacts to critical resource 
areas are expected to result from designation of either of these sites. 
Similar types of impacts are expected from use of these sites as 
impacts from use of the alternative sites located further offshore. 
However, use of these sites is expected to result in less area being 
impacted as a result of their shallower depth. The selected sites would 
require significantly less consumption of resources and would result in 
significantly less air emissions than the offshore sites. In addition, 
monitoring of the selected sites would be less costly to the federal 
government and less difficult than the offshore sites. Therefore, these 
sites were selected as the preferred alternatives.
    The FEIS presents the information needed to evaluate the 
suitability of ocean disposal areas for final designation use and is 
based on a series of disposal site environmental studies. The 
environmental studies and final designation are being conducted in 
accordance with the requirements of MPRSA, the Ocean Dumping 
Regulations, and other applicable Federal statutory provisions.
    This final rulemaking notice fills the same role as the Record of 
Decision required under regulations promulgated by the Council on 
Environmental Quality for agencies subject to NEPA.

D. Site Designations

    On July 30, 2004, EPA proposed designation of two sites for 
continuing disposal of dredged materials from Palm Beach Harbor and 
Port Everglades Harbor, Florida. The public comment period on this 
proposed action closed on September 13, 2004. Six letters of comment 
were received. All six letters were supportive of the Port Everglades 
Harbor ODMDS designation based on the need for alternatives to upland 
disposal for maintenance and construction dredged material from the 
port. No comment letters were received for the Palm Beach Harbor ODMDS.
    The ODMDS for Palm Beach Harbor is located east of Palm Beach, 
Florida, the western boundary being 4.3 nmi offshore. The ODMDS 
occupies an area of about 1 nmi\2\, in the configuration of an 
approximate 1 nmi by 1 nmi square. Water depths within the area range 
from 525 to 625 feet. The coordinates of the Palm Beach Harbor ODMDS 
are as follows:

26[deg]47'30'' N 79[deg]57'09'' W;
26[deg]47'30'' N 79[deg]56'02'' W;
26[deg]46'30'' N 79[deg]57'09'' W;
26[deg]46'30'' N 79[deg]56'02'' W;

Center coordinates are 26[deg]47'00'' N and 79[deg]56'35'' W.
    The ODMDS for Port Everglades Harbor is located east of Fort 
Lauderdale, Florida, the western boundary being 3.8 nmi offshore. The 
ODMDS occupies an area of about 1 nmi \2\, in the configuration of an 
approximate 1 nmi by 1 nmi square. Water depths within the area range 
from 640 to 705 feet. The coordinates of the Port Everglades Harbor 
ODMDS designation are as follows:

26[deg]07'30'' N 80[deg]02'00'' W;
26[deg]07'30'' N 80[deg]01'00'' W;
26[deg]06'30'' N 80[deg]01'00'' W;
26[deg]06'30'' N 80[deg]01'00'' W;

Center coordinates are 26[deg]07'00'' N and 80[deg]01'30'' W. All 
coordinates utilize the North American Datum of 1983 (NAD83).

[[Page 2812]]

E. Analysis of Criteria Pursuant to the Ocean Dumping Act Regulatory 
Requirements

    Five general criteria are used in the selection and approval for 
continuing use of ocean disposal sites. Sites are selected so as to 
minimize interference with other marine activities, to prevent any 
temporary perturbations associated with the disposal from causing 
impacts outside the disposal site, and to permit effective monitoring 
to detect any adverse impacts at an early stage. Where feasible, 
locations off the Continental Shelf and other sites that have been 
historically used are to be chosen. If, at any time, disposal 
operations at a site cause unacceptable adverse impacts, further use of 
the site can be restricted or terminated by EPA. The general criteria 
are given in Sec.  228.5 of the EPA Ocean Dumping Regulations, and 
Sec.  228.6 lists eleven specific factors used in evaluating a disposal 
site to assure that the general criteria are met. The sites, as 
discussed below under the eleven specific factors, are acceptable under 
the five general criteria.
    The characteristics of the sites are reviewed below in terms of 
these eleven criteria (the FEIS may be consulted for additional 
information).

1. Geographical Position, Depth of Water, Bottom Topography, and 
Distance From Coast (40 CFR 228.6(a)(1))

    The ODMDS for Palm Beach Harbor is located east of Palm Beach, 
Florida, the western boundary being 4.3 nmi offshore. Water depths 
within the area range from 525 to 625 feet with depth contours parallel 
to the coastline. The coordinates of the Palm Beach Harbor ODMDS are as 
follows:

26[deg]47'30'' N 79[deg]57'09'' W;
26[deg]47'30'' N 79[deg]56'02'' W;
26[deg]46'30'' N 79[deg]57'09'' W; and
26[deg]46'30'' N 79[deg]56'02'' W;

Center coordinates are 26[deg]47'00'' N and 79[deg]56'35'' W.
    The ODMDS for Port Everglades Harbor is located east of Fort 
Lauderdale, Florida, the western boundary being 3.8 nmi offshore. Water 
depths within the area range from 640 to 705 feet with depth contours 
parallel to the coastline. The coordinates of the Port Everglades 
Harbor ODMDS designation are as follows:

26[deg]07'30'' N 80[deg]02'00'' W;
26[deg]06'30'' N 80[deg]01'00'' W;
26[deg]06'30'' N 80[deg]02'00'' W; and
26[deg]06'30'' N 80[deg]01'00'' W;

    Center coordinates are 26[deg]07'00'' N and 80[deg]01'30'' W. All 
coordinates utilize the North American Datum of 1983 (NAD83).

2. Location in Relation to Breeding, Spawning, Nursery, Feeding, or 
Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR 
228.6(a)(2))

    The most active breeding and nursery areas are located in inshore 
waters, along adjacent beaches, or in nearshore reef areas. While 
breeding, spawning, and feeding activities may take place near the 
ODMDSs, these activities are not believed to be confined to, or 
concentrated in, these areas. While many marine species may pass 
through the ODMDSs, passage is not geographically restricted to these 
areas.
    EPA initially coordinated with the National Marine Fisheries 
Service (NMFS) regarding the Endangered Species Act (ESA) on March 24, 
2004. At that time, EPA sent NMFS a copy of the Draft EIS, which 
included two Appendices, each entitled Biological Assessment. Those 
Assessments evaluated the potential impacts from the site designations 
to Federally listed threatened and endangered species. In its letter, 
EPA referenced the Assessments, which concluded that the site 
designations ``will not adversely affect'' any listed species or 
critical habitat. While the letter stated that EPA concluded the action 
``will not affect'' any listed species, EPA informally consulted with 
NMFS and sought comments from the NMFS on the proposed site 
designations with the March 2004 letter. In a May 24, 2004 letter of 
response, NMFS concluded that adverse effects on whales are unlikely to 
occur from this project and no effects to the shortnose sturgeon or 
smalltooth sawfish are likely to occur from this project.
    On March 24, 2004, EPA also consulted with NMFS pursuant to Section 
305 of the Magnuson-Stevens Fishery Conservation and Management Act 
(MSFCMA) 16 U.S.C. 1855, and the applicable implementing regulations. 
At that time, EPA sent NMFS a copy of the Draft EIS which included an 
Essential Fish Habitat (EFH) Assessment within the body of the 
document. In a May 6, 2004 letter of response, NMFS requested a stand 
alone EFH Assessment that specifically addressed potential impacts to 
deepwater habitats, such as black corals and Oculina, and potential 
impacts to deepwater managed species including tilefish. The EFH 
Assessments were provided to NMFS on July 15, 2004 and included as 
appendices to the FEIS. Based on comments received from NMFS, EPA 
revised the EFH Assessments. Revised EFH Assessments for designation of 
the Palm Beach Harbor ODMDS and the Port Everglades Harbor ODMDS were 
provided to NMFS on September 22, 2004 and October 12, 2004, 
respectively. The Assessments set forth EPA's determination that the 
site designation of the Palm Beach Harbor ODMDS and Port Everglades 
Harbor ODMDS will not have a substantial individual or cumulative 
adverse impact on the EFH of managed species. In letters dated October 
19, 2004 and October 20, 2004, NMFS concluded that the fishery 
conservation requirements of the MSFCMA were completed for the Palm 
Beach Harbor ODMDS and the Port Everglades Harbor ODMDS, respectively.

3. Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3))

    The disposal sites for Palm Beach Harbor and Port Everglades Harbor 
are located approximately 4.5 nmi and 4.0 nmi offshore, respectively. 
The nearest beaches are located on the shorelines west of the sites. 
Because of the distance of the sites from the shoreline, the 
predominate northerly directed current, and the expected localized 
effects at the disposal sites, it is unlikely that dredged material 
disposal at either of the sites would adversely affect coastal beaches. 
Amenity areas in the vicinity of the sites include artificial and 
natural reefs. Both sites are located at least 2.3 nmi from the nearest 
artificial reef. From West Palm Beach to the Florida Keys, there are 
generally three separate series of reefs or hard bottoms. The disposal 
sites for Palm Beach Harbor and Port Everglades Harbor are located 
approximately 2.6 nmi and 3.0 nmi from the outer of these reef series, 
respectively. In addition, colonies of the deepwater coral Oculina 
varicosa extend north from Palm Beach Harbor and parallel the break 
between the edge of the continental shelf and the Florida-Hatteras 
slope. The Palm Beach Harbor ODMDS is located approximately 1.7 nmi 
east of the nearest observed deepwater corals. Currents in the vicinity 
trend alongshore in a general north-south orientation. Modeling 
performed by the COE indicates that disposed material will not impact 
these natural areas.

4. Types and Quantities of Wastes Proposed To Be Disposed of, and 
Proposed Methods of Release, Including Methods of Packing the Waste, if 
Any (40 CFR 228(a)(4))

    The only material to be placed at the ODMDSs will be dredged 
material that meets the EPA Ocean Dumping Criteria in 40 CFR Parts 220 
through 229. The sites are expected to be used for routine maintenance 
of the respective harbor projects. Annual average disposal

[[Page 2813]]

volumes of 30,000 cubic yards of material are expected at each site 
with disposal occurring every three years. Dredged material from Port 
Everglades Harbor is expected to have a solids content of 60 to 70 
percent solids by weight with a grain size of 38 to 5 percent of the 
grains finer than sand by weight. Dredged material from Palm Beach 
Harbor is expected to have solids content of 80 to 85 percent solids by 
weight with a grain size of 6 percent finer than sand. It has been 
demonstrated by the COE that the most cost effective method of dredging 
is clamshell/barge dredging for Palm Beach Harbor and hopper dredging 
for Port Everglades Harbor. Additional foreseen use of the Port 
Everglades Harbor site could be the Federal Port Everglades Deepening 
Project or use by the U.S. Navy in Port Everglades. The Deepening 
Project has not yet been authorized and there are no currently planned 
Navy projects. The disposal of dredge material at the proposed sites 
will be conducted using a near instantaneous dumping type barge or 
scow.

5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))

    Surveillance and monitoring of the proposed sites is feasible. 
Survey vessels, aircraft overflights, or automated Geographic 
Positioning Systems (GPS) surveillance systems are feasible 
surveillance methods. The depths at these sites make conventional ODMDS 
monitoring techniques difficult to utilize. A draft Site Management and 
Monitoring Plan (SMMP) for each ODMDS was developed and included in an 
appendix in the FEIS. The SMMPs were finalized by EPA and the COE in 
November, 2004. The SMMPs establish a sequence of monitoring surveys to 
be undertaken to determine any impacts resulting from disposal 
activities. The SMMPs may be reviewed and revised by EPA.

6. Dispersal, Horizontal Transport and Vertical Mixing Characteristics 
of the Area Including Prevailing Current Direction and Velocity, if Any 
(40 CFR 228.6(a)(6))

    Prevailing currents parallel the coast and are generally oriented 
along a north-south axis. Northerly flow predominates. Mean surface 
currents range from 10 to 100 cm/sec depending on direction with 
maximum velocities up to 530 cm/sec. Current speeds are lower and 
current reversals more common in near-bottom waters. Mean velocities of 
20 cm/sec and maximum velocities of 130 cm/sec have been measured for 
near-bottom waters in the area. Dredged material dispersion studies 
conducted by the COE for both short (hours) and long-term (months) 
transport of material disposed at the Palm Beach Harbor and Port 
Everglades Harbor sites indicate little possibility of disposed 
material affecting near-shore reefs or other amenities in the areas of 
the disposal sites.

7. Existence and Effects of Current and Previous Discharges and Dumping 
in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7))

    There are no current or previous discharges within the ODMDSs. 
There are two interim-designated ODMDSs near Palm Beach Harbor. The 
disposal of 5.2 million cubic yards of dredged material from Palm Beach 
Harbor occurred between 1950 and 1983 in the interim sites. The 
characteristics of the dredged material were poorly graded sand with 
traces of shell fragments.
    An interim-designated ODMDS at Port Everglades Harbor is located 
approximately 2.5 nmi west-southwest of the Port Everglades Harbor 
ODMDS. The disposal of 220,000 cubic yards of dredged material occurred 
in this interim ODMDS between 1952 and 1982. The characteristics of the 
disposed dredged material were organic silt with some clay. A 1984 
survey conducted by EPA indicated that some damage to nearby inshore, 
hard bottom areas may have occurred because of the movement of fine 
material associated with the disposal of dredged material at the site. 
In light of the survey findings, disposal at the Port Everglades 
interim site was discontinued after 1984.
    There are two wastewater ocean outfall discharges in the vicinity 
of each proposed ODMDS. The nearest outfall to either of the proposed 
sites is 11 miles. The effluent from wastewater outfalls has undergone 
secondary treatment and chlorination. Significant adverse impacts to 
the marine environment have not been documented in association with 
either of these offshore wastewater outfalls. Any effects from these 
discharges would be local and predominately in a north-south direction 
due to prevailing currents. Therefore, these discharges should not have 
any effect within the sites.

8. Interference With Shipping, Fishing, Recreation, Mineral Extraction, 
Desalination, Fish and Shellfish Culture, Areas of Special Scientific 
Importance and Other Legitimate Uses of the Ocean (40 CFR 228.6(a)(8))

    The infrequent use of the proposed sites should not significantly 
disrupt either commercial shipping or recreational boating. Commercial 
and recreational fishing activities are concentrated in inshore and 
nearshore waters. No mineral extraction, desalination, or mariculture 
activities occur in the immediate area. Scientific resources present 
near the Port Everglades Harbor site include the South Florida Ocean 
Measurement Center (SFOMC, formerly the South Florida Testing 
Facility). The SFOMC is located 1.5 nmi south of the ODMDS. 
Interference with activities at the SFOMC is not expected.

9. The Existing Water Quality and Ecology of the Site as Determined by 
Available Data or by Trend Assessment or Baseline Surveys (40 CFR 
228.6(a)(9))

    Baseline surveys conducted for the Palm Beach Harbor and the Port 
Everglades Harbor ODMDSs show the water quality and other environmental 
characteristics of the proposed ODMDSs to be typical of the Atlantic 
Ocean. Salinity, dissolved oxygen, and transmissivity (water clarity) 
data indicated water masses over the sites were similar to water masses 
in open ocean waters and deviated little between sites. Macroinfaunal 
samples were dominated in numbers by annelids and arthropods. Water 
quality at the proposed ODMDSs is variable and is influenced by 
frequent Florida Current intrusions of offshore oceanic waters, and 
periodic up welling of deep ocean waters. The proposed disposal sites 
lie on the continental slope in an area traversed by the western edge 
of the Florida Current. The location of the western edge of the current 
determines to a large extent whether waters at the site are 
predominantly coastal or oceanic. Frequent intrusions or eddies of the 
Florida Current transport oceanic waters over the continental shelf in 
the vicinity of the ODMDSs. Periodic up welling/down welling events 
associated with wind stress also influence waters in the area.
    No critical habitat or unique ecological communities have been 
identified within or adjacent to the ODMDSs.

10. Potentiality for the Development or Recruitment of Nuisance Species 
in the Disposal Site (40 CFR 228.6(a)(10)).

    The disposal of dredged materials should not attract or promote the 
development of nuisance species. No nuisance species have been reported 
to occur at previously utilized disposal sites in the vicinity of 
either ODMDSs.

[[Page 2814]]

11. Existence at or in Close Proximity to the Site of Any Significant 
Natural or Cultural Features of Historical Importance (40 CFR 
228.6(a)(11))

    Due to the proximity of ODMDSs to entrance channels, the cultural 
resource that has the greatest potential for impact would be 
shipwrecks. Sidescan sonar surveys of the sites were conducted which 
should have identified any potential shipwrecks. No such features were 
noted within the disposal sites in the sidescan sonar surveys of the 
disposal sites. No natural or cultural features of historical 
importance have been identified at either site. The Florida Department 
of State Division of Historical Resources was consulted and they 
determined that it is unlikely that designation of the ODMDSs would 
affect archaeological or historical resources eligible for listing in 
the National Register of Historic Places, or otherwise of significance.

F. Site Management

    Site management of the ODMDSs is the responsibility of EPA in 
cooperation with the COE. The COE issues permits to private applicants 
for ocean disposal; however, EPA Region 4 assumes overall 
responsibility for site management. Development of Site Management 
Plans is required by the MPRSA prior to final designation. A Site 
Management and Monitoring Plan (SMMP) for each ODMDS was developed as a 
part of the process of completing the FEIS. The SMMPs were finalized by 
EPA and the COE in November, 2004. The plans provide procedures for 
both site management and for the monitoring of effects of disposal 
activities. The SMMPs are intended to be flexible and may be reviewed 
and revised by the EPA.

G. Action

    The FEIS concludes that the sites may appropriately be designated 
for use. The sites are also consistent with the five general criteria 
and eleven specific factors in the Ocean Dumping Regulations used for 
site evaluation.
    The designation of the Palm Beach Harbor and Port Everglades Harbor 
sites as EPA-approved ODMDSs is being published as final rulemaking. 
Overall management of these sites is the responsibility of the Regional 
Administrator of EPA Region 4.
    It should be emphasized that, if an ODMDS is designated, such a 
site designation does not constitute EPA's approval of actual disposal 
of material at sea. Before ocean disposal of dredged material at the 
site may commence, the COE must evaluate a permit application according 
to EPA's Ocean Dumping Criteria (40 CFR part 227) and authorize 
disposal. EPA has the right to disapprove the actual disposal if it 
determines that environmental concerns under MPRSA have not been met.

H. Statutory and Executive Order Reviews

1. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (A) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (B) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (C) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (D) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    EPA has determined that this action does not meet the definition of 
a ``significant regulatory action'' under E.O. 12866 as described above 
and is therefore not subject to OMB review.

2. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is intended 
to minimize the reporting and record-keeping burden on the regulated 
community, as well as to minimize the collection and dissemination. In 
general, the Act requires that information requests and record-keeping 
requirements affecting ten or more non-Federal respondents be approved 
by OPM. Since this rule does not establish or modify any information or 
record-keeping requirements, it is not subject to the provisions of the 
Paperwork Reduction Act.

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 a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field. EPA has determined that this action will not 
have a significant economic impact on small entities. The ocean 
disposal site designations will only have the effect of providing a 
long term, environmentally acceptable disposal option for dredged 
material. This action will help to facilitate the maintenance of safe 
navigation on a continuing basis. After considering the economic 
impacts of today's final action on small entities, I certify that this 
action will not have a significant impact on a substantial number of 
small entities.

4. The Unfunded Mandates Reform Act and Executive Order 12875

    Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal Mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA

[[Page 2815]]

establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed under section 203 of the UMRA a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    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 any State, local or tribal governments or the 
private sector. Thus, the requirements of section 202 and section 205 
of the UMRA do not apply to this final rule. Similarly, EPA has also 
determined that this action contains no regulatory requirements that 
might significantly or uniquely affect small government entities. Thus, 
the requirements of section 203 of the UMRA do not apply to this final 
rule.

5. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This final rule addresses the 
designation and de-designation of ocean disposal sites for the 
potential disposal of dredged materials. This action neither creates 
new obligations nor alters existing authorizations of any State, local 
or other governmental entities. Thus, Executive Order 13132 does not 
apply to this rule. However, EPA did consult with State and local 
government representatives in the development of the FEIS and through 
solicitation of comments on the Draft and Final EIS. In addition, in 
the spirit of Executive Order 13132, and EPA policy to promote 
communications between EPA and State and local governments, EPA 
specifically solicited comment on the proposed rule from State and 
local officials.

6. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' ``Policies that have Tribal 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian Tribes, on the relationship between the Federal government and 
the Indian Tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian Tribes.''
    This action does not have Tribal implications. This action will not 
have substantial direct effects on Tribal governments, on the 
relationship between the Federal government and Indian Tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian Tribes, as specified in Executive Order 13175. 
This final rule designates ocean dredged material disposal sites and 
does not establish any regulatory policy with tribal implications. 
Thus, Executive Order 13175 does not apply to this rule.

7. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe might have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health and 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This final 
rule is not an economically significant rule as defined under Executive 
Order 12866 and does not concern an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children. Therefore, it is not subject to Executive Order 13045.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This 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.

9. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless doing so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This final rule 
does not involve technical standards. Therefore, EPA did not consider 
the use of any voluntary consensus standards.
    Although EPA stated that the proposed action did not directly 
involve technical standards, the proposed action and today's final 
action include environmental monitoring and measurement as described in 
EPA's SMMPs. EPA will not require the use of specific, prescribed 
analytic methods for monitoring and managing the designated sites. 
Rather, the Agency plans to allow the use of any method, whether it 
constitutes a voluntary consensus standard or not, that meets the 
monitoring and measurement criteria discussed in the SMMP.

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

[[Page 2816]]

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.
    Because this action addresses ocean disposal site designations 
(away from inhabited land areas), no significant adverse human health 
or environmental effects are anticipated. Therefore, no action from 
this final rule would have a disproportionately high and adverse human 
health and environmental effect on any particular segment of the 
population. In addition, this rule does not impose substantial direct 
compliance costs on those communities. Accordingly, the requirements of 
Executive Order 12898 do not apply.

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 as 
defined in 5 U.S.C. 804(2) 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 February 17, 
2005.

12. The Endangered Species Act

    Under section 7(a)(2) of the Endangered Species Act (ESA), 16 
U.S.C. 1536(a)(2), federal agencies are required to ``insure that any 
action authorized, funded, or carried on by such agency * * * is not 
likely to jeopardize the continued existence of any endangered or 
threatened species or result in the destruction or adverse modification 
of habitat of such species * * *.'' Under regulations implementing the 
ESA, a Federal agency is required to consult with either the FWS or the 
NMFS (depending on the species involved) if the agency's action ``may 
affect'' endangered or threatened species or their critical habitat. 
See, 50 CFR 402.14(a).
    EPA initially coordinated with the National Marine Fisheries 
Service (NMFS) regarding the Endangered Species Act (ESA) on March 24, 
2004. At that time, EPA sent NMFS a copy of the Draft EIS, which 
included two Appendices, each entitled Biological Assessment. Those 
Assessments evaluated the potential impacts from the site designations 
to federally listed threatened and endangered species. In its letter, 
EPA referenced the Assessments, which concluded that the site 
designations ``will not adversely affect'' any listed species or 
critical habitat. While the letter stated that EPA concluded the action 
``will not affect'' any listed species, EPA informally consulted with 
NMFS and sought comments from the NMFS on the proposed site 
designations with the March 2004 letter. In a May 24, 2004 letter of 
response, NMFS concluded that adverse effects on whales are unlikely to 
occur from this project and no effects to the shortnose sturgeon or 
smalltooth sawfish are likely to occur from this project.

13. Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)

    The 1996 Sustainable Fisheries Act amendments to the MSFCMA require 
the designation of 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 follows: ``Any impact 
which reduces the quality and/or quantity of EFH. Adverse effects 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.''
    On March 24, 2004, EPA consulted with NMFS pursuant to Section 305 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(MSFCMA) 16 U.S.C. 1855, and the applicable implementing regulations. 
At that time, EPA sent NMFS a copy of the Draft EIS which included an 
EFH Assessment within the body of the document. In a May 6, 2004 letter 
of response, NMFS requested a stand alone EFH Assessment that 
specifically addressed potential impacts to deepwater habitats, such as 
black corals and Oculina, and potential impacts to deepwater managed 
species including tilefish. The EFH Assessments were provided to NMFS 
on July 15, 2004 and included as appendices to the FEIS. Based on 
comments received from NMFS, EPA revised the EFH Assessments. Revised 
EFH Assessments for designation of the Palm Beach Harbor ODMDS and the 
Port Everglades Harbor ODMDS were provided to NMFS on September 22, 
2004 and October 12, 2004, respectively. The Assessments set forth 
EPA's determination that the site designation of the Palm Beach Harbor 
ODMDS and Port Everglades Harbor ODMDS will not have a substantial 
individual or cumulative adverse impact on the EFH of managed species. 
In letters dated October 19, 2004 and October 20, 2004, NMFS concluded 
that the fishery conservation requirements of the MSFCMA were completed 
for the Palm Beach Harbor ODMDS and the Port Everglades Harbor ODMDS, 
respectively.

14. Executive Order 13089: Coral Reef Protection

    Executive Order 13089 (63 FR 32701, June 16, 1998) on Coral Reef 
Protection recognizes the significant ecological, social, and economic 
values provided by the Nation's coral reefs and the critical need to 
ensure that Federal agencies are implementing their authorities to 
protect these valuable ecosystems. Executive Order 13089 directs 
Federal agencies, including EPA and the COE whose actions may affect 
U.S. coral reef ecosystems, to take the following steps: 1. Identify 
their actions that may affect U.S. coral reef ecosystems; 2. Utilize 
their programs and authorities to protect and enhance the conditions of 
such ecosystems; and 3. To the extent permitted by law, ensure that any 
actions they authorize, fund, or carry out will not degrade the 
conditions of such ecosystems. It is the policy of EPA and the COE to 
apply their authorities under the MPRSA to avoid adverse impacts on 
coral reefs. Protection of coral reefs has been carefully addressed 
through the application the site designation criteria which require 
consideration of the potential site's location in relation to breeding, 
spawning, nursery, feeding, and passage areas of living marine 
resources and amenity areas, interference with recreation and areas of 
special scientific importance, and existence of any significant natural 
or cultural features at or in close proximity to the site (see E. 
Analysis of Criteria Pursuant to the Ocean Dumping Act Regulatory 
Requirements). Based on application of these criteria, the

[[Page 2817]]

proposed disposal sites should not have adverse effects on coral reefs.

15. Executive Order 13158: Marine Protected Areas

    Executive Order 13158 (65 FR 34909, May 31, 2000) requires that 
each Federal agency whose actions affect the natural or cultural 
resources that are protected by an Marine Protected Area (MPA) shall 
identify such actions and shall avoid harm to the natural and cultural 
resources that are protected by an MPA. 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 has reviewed the Marine Managed Areas Inventory maintained by 
the National Oceanic and Atmospheric Administration and the U.S. 
Department of Commerce. The nearest MPA to either ODMDS is Biscayne 
National Park which is located greater than 20 nmi from the Port 
Everglades Harbor ODMDS and greater than 40 nmi from the Palm Beach 
Harbor ODMDS. Therefore, EPA has determined that no MPAs will be 
affected by this action.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: January 4, 2005.
J.I. Palmer, Jr.,
Regional Administrator for Region 4.

0
In consideration of the foregoing, subchapter H of chapter I of title 
40 is amended as set forth below:

PART 228--[AMENDED]

0
1. The authority citation for part 228 continues to read as follows:

    Authority: 33 U.S.C. 1412 and 1418.


Sec.  228.14  [Amended]

0
2. Section 228.14 is amended by removing and reserving paragraphs 
(h)(3), (h)(4), and (h)(5).

0
3. Section 228.15 is amended by adding paragraphs (h)(21) and (h)(22) 
to read as follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (21) Palm Beach Harbor, FL Ocean Dredged Material Disposal Site.
    (i) Location (NAD83): 26[deg]47'30'' N., 79[deg]57'09'' W.; 
26[deg]47'30'' N., 79[deg]56'02'' W.; 26[deg]46'30'' N., 79[deg]57'09'' 
W.; 26[deg]46'30'' N., 79[deg]56'02'' W. Center coordinates are 
26[deg]47'00'' N and 79[deg]56'35'' W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 525 to 625 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material. Disposal shall comply with conditions set forth in the most 
recent approved Site Management and Monitoring Plan.
    (22) Port Everglades Harbor, FL Ocean Dredged Material Disposal 
Site.
    (i) Location (NAD83): 26[deg]07'30'' N., 80[deg]02'00'' W.; 
26[deg]07'30'' N., 80[deg]01'00'' W.; 26[deg]06'30'' N., 80[deg]02'00'' 
W.; 26[deg]06'30'' N., 80[deg]01'00'' W. Center coordinates are 
26[deg]07'00'' N and 80[deg]01'30'' W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 640 to 705 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material. Disposal shall comply with conditions set forth in the most 
recent approved Site Management and Monitoring Plan.
* * * * *
[FR Doc. 05-932 Filed 1-14-05; 8:45 am]
BILLING CODE 6560-50-P