Ocean Disposal; Designation of Dredged Material Disposal Sites in Central and Western Long Island Sound, CT, 32498-32520 [05-10847]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 106 (Friday, June 3, 2005)]
[Rules and Regulations]
[Pages 32498-32520]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10847]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-7919-9]


Ocean Disposal; Designation of Dredged Material Disposal Sites in 
Central and Western Long Island Sound, CT

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: With the publication of this final rule, EPA is designating 
two open-water dredged material disposal sites, Central Long Island 
Sound (CLIS) and Western Long Island Sound (WLIS), for the disposal of 
dredged material from harbors and navigation channels in the Long 
Island Sound vicinity in the states of Connecticut and New York. This 
action is necessary to provide long-term, open-water, dredged material 
disposal sites as an alternative for the possible future disposal of 
such material. The basis for this action is described in a Final 
Environmental Impact Statement (FEIS) published by EPA in March 2004. 
The FEIS identifies designation of the CLIS and WLIS dredged material 
disposal sites as the preferred alternatives from the range of options 
considered. On September 12, 2003, EPA published in the Federal 
Register a proposed rule and a notice of availability of a Draft EIS 
(DEIS) for this action. These disposal site designations are subject to 
various restrictions designed to support the goal of terminating or 
reducing the disposal of dredged material into Long Island Sound, as 
explained below in subsection E. 3 of the Supplementary Information 
section.
    EPA has conducted the disposal site designation process consistent 
with the requirements of the Marine Protection, Research, and 
Sanctuaries Act (MPRSA), the Clean Water Act (CWA), the National 
Environmental Policy Act (NEPA), the Coastal Zone Management Act 
(CZMA), and other relevant statutes and regulations. Under NEPA, 
federal agencies prepare a public record of decision (ROD) at the time 
of their decision on any action for which an FEIS has been prepared. 
This Federal Register notice for the final rule will also serve as 
EPA's ROD for the site designations.
    The site designations are intended to be effective for an 
indefinite period of time. EPA has agreed, however, that use of the 
sites pursuant to these designations may be suspended or terminated in 
accordance with the Restrictions included in the final rule.
    The designation of these two disposal sites does not by itself 
authorize the disposal of dredged material from any particular dredging 
project at either site. The designation of the CLIS and WLIS disposal 
sites simply makes those sites available for use for the dredged 
material from a specific project if no environmentally preferable, 
practicable alternative for managing that dredged material exists, and 
if analysis of the dredged material indicates that it is suitable for 
open-water disposal.
    Thus, each proposed dredging project will be evaluated to determine 
whether there are practicable, environmentally preferable alternatives 
to open-water disposal. In addition, the dredged material from each 
proposed disposal project will be subjected to MPRSA and/or CWA 
sediment testing requirements to determine its suitability for possible 
open-water disposal at an approved site. Alternatives to open-water 
disposal that will be considered include upland disposal and beneficial 
uses such as beach nourishment. If environmentally preferable, 
practicable disposal alternatives exist, open-water disposal will not 
be allowed. In addition, the dredged material will undergo physical, 
chemical, and biological analysis to determine its suitability for 
open-water disposal. EPA will not approve dredged material for open-
water disposal if it determines that the material has the potential to 
cause unacceptable adverse effects to the marine environment or human 
health. The review process for proposed disposal projects is discussed 
in more detail below and in the FEIS.
    As dredged material disposal sites designated by EPA under the 
MPRSA, CLIS and WLIS also will be subject to newly developed, detailed 
management and monitoring protocols to track site conditions and 
prevent the occurrence of unacceptable adverse effects. These 
management and monitoring protocols are described in the CLIS and WLIS 
Site Management and Monitoring Plans (SMMPs), which are incorporated in 
the FEIS as Appendix J. EPA is authorized to close or limit the use of 
these sites to further disposal activity if their use causes 
unacceptable adverse impacts to the marine environment or human health.

DATES: This final regulation is effective on July 5, 2005.

ADDRESSES: EPA has established a file supporting this action that 
includes the Federal Register notice for this final rule, the FEIS and 
its appendices, including the SMMPs and responses to public comments, 
and other supporting documents.
    1. In person. The file is available for inspection at the following 
location: EPA New England Library, One Congress St., Suite 1100, 
Boston, MA 02114-2023. For access to the documents, call Peg Nelson at 
(617) 918-1991 between 10 a.m. and 3 p.m. Monday through Thursday, 
excluding legal holidays, for an appointment.
    2. Electronically. You also may review and/or obtain electronic 
copies of the rule, FEIS, and various support documents from the EPA 
home page at https://www.epa.gov/fedrgstr/, or on the

[[Page 32499]]

EPA Region 1 homepage at https://www.epa.gov/region1/eco/lisdreg/.
    The Federal Register notice for this final rule and the responses 
to public comments on the FEIS also are available for review by the 
public at the following locations. The DEIS and FEIS and its 
appendices, including the SMMPs and responses to public comments on the 
DEIS, also were provided to most of these sources at the time of their 
publication, and may still be available for review there.
    1. In person. A. Cold Spring Harbor Library, Goose Hill Rd., Cold 
Spring Harbor, NY. B. East Hampton Library, 159 Main St., East Hampton, 
NY. C. Mamaroneck Public Library Inc., 136 Prospect Ave., Mamaroneck, 
NY. D. Montauk Library, 871 Montauk Highway, Montauk, NY. E. New York 
State Library, Cultural Education Center 6th Floor, Empire State 
Center, Albany, NY. F. Northport Library, 151 Laurel Ave., Northport, 
NY. G. Port Jefferson Free Library, 100 Thompson St., Port Jefferson, 
NY. H. Port Washington Public Library, 1 Library Dr., Port Washington, 
NY. I. Riverhead Free Library, 330 Court St., Riverhead, NY. J. 
Bridgeport Public Library, 925 Broad St., Bridgeport, CT. K. 
Connecticut State Library, Information Service Division, 231 Capital 
Ave., Hartford, CT. L. Milford City Library, 57 New Haven Ave., 
Milford, CT. M. New Haven Free Public Library, 133 Elm St., New Haven, 
CT. N. New London Public Library, 63 Huntington St., New London, CT. O. 
Norwalk Public Library, 1 Belden Ave., Norwalk, CT. P. Acton Public 
Library, 60 Old Boston Post Rd., Old Saybrook, CT. Q. Ferguson Library, 
752 High Ridge Road, Stamford, CT. R. Boston Public Library, 700 
Boylston St., Copley Square, Boston, MA.

FOR FURTHER INFORMATION CONTACT: Ms. Jean Brochi, U.S. Environmental 
Protection Agency, One Congress St., Suite 1100 (COP), Boston, MA 
02114-2023; telephone number: (617) 918-1070; fax number: (617) 918-
1505; e-mail address: Brochi--Jeanlis@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

A. Purpose
B. Potentially Affected Entities
C. Disposal Site Descriptions
D. Statutory and Regulatory Authorities
E. Compliance with Statutory and Regulatory Requirements
F. Public Comments
G. Action
H. Supporting Documents

A. Purpose

    The two dredged material disposal sites in Long Island Sound 
designated by this action are necessary to provide long-term, 
environmentally acceptable disposal options for potential use by the 
U.S. Army Corps of Engineers (USACE, or Corps) and other federal, 
state, municipal and private entities who must dredge channels, 
harbors, marinas and other aquatic areas in the Long Island Sound 
vicinity in order to maintain conditions for safe navigation for the 
purposes of marine commerce and recreation.

B. Potentially Affected Entities

    Entities potentially affected by this action are persons, 
organizations, or government bodies seeking to dispose of dredged 
material in waters of Long Island Sound, subject to the requirements of 
the MPRSA and/or the CWA and their implementing regulations. This final 
rule is expected to be primarily of relevance to: (a) Parties seeking 
permits from the USACE to transport more than 25,000 cubic yards of 
dredged material for the purpose of disposal into the waters of the 
central and western regions of Long Island Sound; (b) to the Corps 
itself for its own dredged material disposal projects; and (c) to other 
federal agencies seeking to dispose of dredged material in the central 
and western regions of Long Island Sound. Potentially affected 
categories and entities that may seek to use the dredged material 
disposal sites and would be subject to this final rule may include:

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                                             Examples of potentially
                Category                        affected entities
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Federal Government.....................  U.S. Army Corps of Engineers
                                          Civil Works Projects, and
                                          other federal agencies.
Industry and General Public............  Port authorities, harbors,
                                          shipyards, marine repair
                                          facilities, marinas, yacht
                                          clubs, and berth owners.
State, local and tribal governments....  Governments owning and/or
                                          responsible for ports,
                                          harbors, and/or berths,
                                          government agencies requiring
                                          disposal of dredged material
                                          associated with public works
                                          projects.
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    This table lists the types of entities that could potentially be 
affected by this final rule. EPA notes that nothing in this final rule 
alters the jurisdiction or authority of EPA or the types of entities 
regulated under the MPRSA and/or CWA. Questions regarding the 
applicability of this final rule to a particular entity should be 
directed to the contact person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

C. Disposal Site Descriptions

    The following site descriptions are based on information in section 
3.4.3 of the FEIS and supporting documents.

1. Central Long Island Sound (CLIS)

    The CLIS site has been used for the disposal of dredged material 
from central and western Long Island Sound since the early 1940s and 
possibly earlier. An actively used site, CLIS has received close to 14 
million cubic yards since 1941. Predecessors to the CLIS site in the 
same general vicinity received dredged material since the late 1800s. 
Between 1982 and 2001, CLIS received approximately seven million cubic 
yards, with an average annual volume of 350,000 cubic yards.
    In recent years, dredged material disposal at CLIS has been 
conducted pursuant to either the Corps' short-term site selection 
authority under section 103(b) of the MPRSA or, for small (25,000 cubic 
yards or less), non-federal dredging projects, the Corps' CWA section 
404 permitting authority. Prior disposal activity dating back to 1941 
and possibly earlier was conducted under other applicable federal and 
state legal requirements. The availability of CLIS for use by the USACE 
under its most recent short-term site selection expired on February 18, 
2004. Under MPRSA section 103(b), the term of the Corps site selection 
may not be extended. Therefore, the CLIS site is currently available 
only for disposal from non-federal projects generating 25,000 cubic 
yards or less of dredged material that satisfy CWA section 404 
requirements.
    The CLIS disposal site is a 1.1 by 2.2 nautical mile (nmi) 
rectangular area, about 2.4 square nautical miles (nmi2) in 
size. It is located 5.6 nmi south of South End Point near East Haven, 
Connecticut, and over 10 nmi north of Shoreham Beach, New York, in 
water depths ranging from 56 to 77 feet (17 to 23.5 meters). The site 
is entirely within Connecticut state waters, approximately 2.5 nmi 
north of the New York state border.
    This final rule designates the CLIS site with boundaries slightly 
reconfigured from those of the current site. The northern boundary was 
extended 700 feet (213 meters) to the north, and the eastern boundary 
was extended 1,230 feet (375 meters) to the east, to encompass two 
historic disposal mounds, the FVP and CS2 mounds, that lie outside the 
current site boundaries. This reconfiguration will allow for management 
and monitoring of these two mounds. The coordinates (North

[[Page 32500]]

American Datum 1983: NAD 83) for the CLIS site are as follows:

41[deg] 9.5' N 72[deg] 54.4' W
41[deg] 9.5' N 72[deg] 51.5' W
41[deg] 8.4' N 72[deg] 54.4' W
41[deg] 8.4' N 72[deg] 51.5' W

    The sediments at the site are predominantly clayey silt, with areas 
of mixed sand, clay, and silt. These sediments are typical of those 
found in central Long Island Sound, which is generally a fine-grained 
depositional environment. In addition to the ambient silts from this 
region, the site also contains deposits of material of mixed grain 
sizes dredged from harbors and navigation channels throughout the 
central and western Long Island Sound region.

2. Western Long Island Sound (WLIS)

    The WLIS site has been used for dredged material disposal since 
1982 when it was identified by the Corps in an EIS as the preferred 
alternative for a regional dredged material disposal site to serve the 
dredging needs of western Long Island Sound. Between 1982 and 2001, 
WLIS received 1.7 million cubic yards, with an average annual volume of 
85,000 cubic yards. Prior to 1982, sites in the immediate vicinity of 
WLIS, including the Eaton's Neck, Stamford, and Norwalk historical 
disposal sites, served the dredging needs of the western Sound. In 
recent years, the WLIS site has been used pursuant to the Corps' short-
term site selection authority under MPRSA section 103(b). Under that 
authority, the site could potentially be used for an additional five 
years starting with its next use for a project regulated under the 
MPRSA.
    The WLIS disposal site is a 1.2 by 1.3 nmi rectangular area, about 
1.56 nmi\2\ in size. It is located 2.5 nmi south of Long Neck Point 
near Noroton, Connecticut, and two nmi north of Lloyd Point, New York, 
in water depths of 79 to 118 feet (24 to 36 meters). The site is 
entirely within Connecticut state waters, approximately 200 yards north 
of the New York state border.
    This final rule designates the WLIS site with boundaries that have 
been slightly reconfigured from its existing location. The entire site 
has been shifted to the west by approximately 1,106 feet (337 meters) 
and to the north by 607 feet (185 meters). This shift will move the 
WLIS site out of a rapidly shoaling area in the southeast portion of 
the existing site. The coordinates (North American Datum 1983: NAD 83) 
for the reconfigured WLIS site are as follows:

41[deg] 00.1' N 73[deg] 29.8' W
41[deg] 00.1' N 73[deg] 28.1' W
40[deg] 58.9' N 73[deg] 29.8' W
40[deg] 58.9' N 73[deg] 28.1' W

    The sediments at the site are heterogeneous, with clayey silt in 
the northeast corner and a mixture of sand-silt-clay in the center and 
southeast corner. These sediments are typical of those found in the 
western basin of Long Island Sound, which is generally a fine-grained 
depositional environment. In addition to the ambient silts from this 
region, the site also contains deposits of material of mixed grain 
sizes dredged from harbors and navigation channels throughout the 
western Long Island Sound region.

D. Statutory and Regulatory Authorities

    The dredged material disposal site designation process has been 
conducted consistent with the requirements of the Marine Protection, 
Research, and Sanctuaries Act (MPRSA), the Clean Water Act (CWA), the 
National Environmental Policy Act (NEPA), the Coastal Zone Management 
Act (CZMA), the Endangered Species Act (ESA), the Magnuson-Stevens 
Fishery Conservation and Management Act (MSFCMA), and any other 
applicable legal requirements.

1. Marine Protection, Research, and Sanctuaries Act (MPRSA); Clean 
Water Act (CWA)

    The primary statutes governing the aquatic disposal of dredged 
material in the United States are the MPRSA, 33 U.S.C. 1401, et seq., 
and the CWA, 33 U.S.C. 1251, et seq. The waters of Long Island Sound 
are landward of the baseline from which the territorial sea of the 
United States is measured. As with other waters lying landward of the 
baseline, all dredged material disposal activities in Long Island 
Sound, whether from federal or non-federal projects of any size, are 
subject to the requirements of section 404 of the CWA, 33 U.S.C. 1344. 
The MPRSA generally only applies to dredged material disposal in waters 
seaward of the baseline and would not apply to Long Island Sound but 
for the 1980 amendment that added section 106(f) to the statute, 33 
U.S.C. 1416(f). This provision--commonly referred to as the ``Ambro 
Amendment'' after former New York Congressman Jerome Ambro--requires 
that the disposal of dredged material in Long Island Sound from federal 
projects (projects carried out under the USACE civil works program or 
by other federal agencies) and non-federal projects involving more than 
25,000 cubic yards of material, must be carried out to comply with the 
requirements of both CWA section 404 and the MPRSA. This applies to 
both the authorization of specific disposal sites and the assessment of 
the suitability of specific dredged material for disposal. Disposal 
from non-federal projects involving 25,000 cubic yards or less of 
dredged material, however, is subject only to CWA section 404.
    Section 102(c) of the MPRSA, as amended, 33 U.S.C. 1412(c), et 
seq., gives the Administrator of EPA authority to designate sites where 
ocean disposal of dredged material, among other things, may be 
permitted. See also 33 U.S.C. 1413(b) and 40 CFR 228.4(e). The statute 
places no specific time limit on the term for use of an EPA-designated 
disposal site. Thus, an EPA site designation can be for an indefinite 
term, and are generally thought of as long-term designations, but EPA 
may place restrictions or limits on the use of the site based on the 
site's capacity to receive dredged material or other environmental 
concerns. See 33 U.S.C. 1412(c). On October 1, 1986, the Administrator 
delegated authority to designate dredged material disposal sites to the 
Regional Administrator of the EPA Region in which the sites are 
located. The CLIS and WLIS sites are located in Connecticut waters in 
Long Island Sound and, therefore, are subject to the site designation 
authority of the Regional Administrator of the EPA New England Regional 
Office.
    Section 103(b) of the MPRSA, 33 U.S.C. 1413(b), provides that any 
ocean disposal of dredged material should occur at EPA-designated sites 
when feasible. In the absence of an available EPA-designated site, 
however, the Corps is authorized to ``select'' appropriate disposal 
sites. In 1992, Congress amended MPRSA section 103(b) to place maximum 
time limits on the use of Corps-selected disposal sites. Specifically, 
the statute restricted the use of such sites to two separate five-year 
terms. Thus, open-water disposal in Long Island Sound of dredged 
material from projects subject to MPRSA requirements under section 
106(f) of the statute (i.e., federal projects or private projects 
involving more than 25,000 cubic yards of material) has been conducted 
at sites used pursuant to the Corps' site selection authority. The CLIS 
disposal site can no longer be used under this authority, however, 
because the second five-year term for the site under the Corps' most 
recent site selection expired on February 18, 2004. (The site can still 
be used if approved under CWA section 404 for non-federal projects 
involving less than 25,000 cubic yards of dredged material.) Meanwhile, 
the first five-year Corps site selection for the WLIS site has expired 
and use of the site under a Corps site

[[Page 32501]]

selection will be limited to five years from the date of the next such 
selection.
    The Ocean Dumping Regulations prescribe general and specific 
criteria at 40 CFR 228.5 and 228.6, respectively, to guide the 
selection of disposal sites for final designation. EPA regulations at 
40 CFR 228.4(e)(1) provide, among other things, that EPA will designate 
any disposal sites by promulgation in 40 CFR part 228. Ocean dumping 
sites designated on a final basis are promulgated at 40 CFR 228.15. 
Section 102(c) of the MPRSA and 40 CFR 228.3 also establish 
requirements for EPA's ongoing management and monitoring, in 
conjunction with the USACE, of the disposal sites designated by EPA to 
ensure that unacceptable, adverse environmental impacts do not occur. 
Examples of such management and monitoring include the following: 
regulating the times, rates, and methods of disposal, as well as the 
quantities and types of material that may be disposed; conducting pre- 
and post-disposal monitoring of sites; conducting disposal site 
evaluation and designation studies; and recommending modification of 
site use and/or designation conditions and restrictions. See also 40 
CFR 228.7, 228.8, 228.9.
    Finally, a disposal site designation by EPA does not actually 
authorize any dredged material to be disposed of at that site. It only 
makes use of that site available as a possible management option if 
various other conditions are met first. Authorization to use the site 
for dredged material disposal must be provided by the Corps under MPRSA 
section 103(b), subject to EPA review, and such disposal at the site 
can only be authorized if: (1) It is determined that there is a need 
for open-water disposal for that project (i.e., that there are no 
practicable alternatives to such disposal that would cause less harm to 
the environment); and (2) the dredged material satisfies the applicable 
environmental impact criteria specified in EPA's regulations at 40 CFR 
part 227. Furthermore, the authorization for disposal is also subject 
to review for compliance with other applicable legal requirements, 
including the ESA, the MSFCMA, the CWA (including any applicable state 
water quality standards), NEPA, and the CZMA.
    EPA's evaluation of CLIS and WLIS pursuant to the applicable site 
evaluation criteria, and its compliance with site management and 
monitoring requirements, are described below in the Compliance with 
Statutory and Regulatory Requirements section.

2. National Environmental Policy Act (NEPA)

    NEPA, 42 U.S.C. 4321, et seq., requires the public analysis of the 
potential environmental effects of proposed federal agency actions and 
reasonable alternative courses of action to ensure that these effects, 
and the differences in effects among the different alternatives, are 
understood in order to ensure high quality, informed decision-making 
and to facilitate avoiding or minimizing any adverse effects of 
proposed actions, and to help restore and enhance environmental 
quality. See 40 CFR 6.100(a) and 1500.1(c) and 1500.2(d)-(f). NEPA 
requires substantial public involvement throughout the decision-making 
process. See 40 CFR 6.400(a) and 40 CFR part 1503 and 1501.7, 1506.6.
    Section 102(c) of NEPA, 42 U.S.C. 4321, et seq., requires federal 
agencies to prepare an EIS for major federal actions significantly 
affecting the quality of the human environment. An EIS should assess: 
(1) The environmental impact of the proposed action; (2) any adverse 
environmental effects that cannot be avoided should the proposal be 
implemented; (3) alternatives to the proposed action; (4) the 
relationship between local short-term uses of man's environment and the 
maintenance and enhancement of long-term productivity; and (5) any 
irreversible and irretrievable commitments of resources that would be 
involved in the proposed action should it be implemented. The required 
content of an EIS is further described in regulations promulgated by 
the President's Council on Environmental Quality (CEQ). See 40 CFR part 
1502.
    EPA disposal site designation evaluations conducted by EPA under 
the MPRSA have been determined to be ``functionally equivalent'' to 
NEPA reviews, so that they are not subject to NEPA analysis 
requirements as a matter of law. Nevertheless, as a matter of policy, 
EPA voluntarily uses NEPA procedures when evaluating the potential 
designation of ocean dumping sites. See 63 FR 58045 (Notice of Policy 
and Procedures for Voluntary Preparation of National Environmental 
Policy Act Documents, October 29, 1998). While EPA voluntarily uses 
NEPA review procedures in conducting MPRSA disposal site designation 
evaluations, EPA also has explained that ``[t]he voluntary preparation 
of these documents in no way legally subjects the Agency to NEPA's 
requirements'' (63 FR 58046).
    In this case, EPA prepared an EIS to evaluate the possibility of 
designating open-water disposal sites in the central and western 
regions of Long Island Sound. As part of the NEPA EIS process, federal 
agencies prepare a public record of decision (ROD) at the time of their 
decision on any action for which an FEIS has been prepared. In this 
case, this final rule will serve as EPA's ROD for the site 
designations. See 40 CFR 1505.2 and 1506.4 (the ROD may be integrated 
into any other agency document prepared in carrying out its action). 
EPA's use of NEPA procedures to evaluate this action is further 
described in the following section, Compliance with Statutory and 
Regulatory Requirements.

3. Coastal Zone Management Act (CZMA)

    The CZMA, 16 U.S.C. 1451, et seq., authorizes states to establish 
coastal zone management programs to develop and enforce policies to 
protect their coastal resources and promote uses of those resources 
that are desired by the state. Sections 307(c)(1)(A) and (C) of the 
CZMA require federal agencies to provide relevant states with a 
determination that each federal agency activity, whether taking place 
within or outside the coastal zone, that affects any land or water use 
or natural resource of the state's coastal zone, will be carried out in 
a manner consistent to the maximum extent practicable with the 
enforceable policies of the state's approved coastal zone management 
program. EPA's compliance with the CZMA is described in the following 
section, Compliance with Statutory and Regulatory Requirements.

4. Endangered Species Act (ESA)

    Under section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 
1536(a)(2), federal agencies are required to ensure that their actions 
are ``not likely to jeopardize the continued existence of any 
endangered species or result in the destruction or adverse modification 
of habitat of such species which is determined * * * to be critical * * 
*.'' Depending on the species involved, a federal agency is required to 
consult with either the U.S. Fish and Wildlife Service (USFWS) or the 
National Marine Fisheries Service (NMFS) if the agency's action ``may 
affect'' an endangered or threatened species or its critical habitat 
(50 CFR 402.14(a)). EPA's compliance with the ESA is described in the 
following section, Compliance with Statutory and Regulatory 
Requirements.

[[Page 32502]]

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

    The 1996 Sustainable Fisheries Act amendments to the MSFCMA, 16 
U.S.C. 1801, et seq., require the designation of essential fish habitat 
(EFH) for federally managed species of fish and shellfish. Pursuant to 
section 305(b)(2) of the MSFCMA, federal agencies are required to 
consult with the NMFS regarding any action they authorize, fund, or 
undertake that may adversely affect EFH. An adverse effect has been 
defined by the Act as, ``[a]ny impact which reduces the quality and/or 
quantity of EFH [and] may include direct (e.g., contamination or 
physical disruption), indirect (e.g., loss of prey, reduction in 
species' fecundity), site-specific or habitat-wide impacts, including 
individual, cumulative, or synergistic consequences of actions'' (50 
CFR 600.810(a)). EPA's compliance with the MSFCMA is described in the 
following section, Compliance with Statutory and Regulatory 
Requirements.

E. Compliance With Statutory and Regulatory Requirements

1. Marine Protection, Research, and Sanctuaries Act (MPRSA)

    EPA undertook its evaluation of whether to designate any dredged 
material disposal sites in the central and western portions of Long 
Island Sound pursuant to its authority under MPRSA section 102(c) in 
response to several factors. These factors include the following:

     The prohibition on further use of the CLIS disposal site 
pursuant to the Corps' site selection authority under MPRSA section 
103(b);
     The five-year cap on any future use of the WLIS disposal 
site pursuant to the Corps' site selection authority under MPRSA 
section 103(b);
     The understanding that in the absence of an EPA-designated 
disposal site or sites, any necessary open-water disposal would either 
be stymied or the USACE would have to undertake additional short-term 
site selections, perhaps many of them, in the future;
     The clear Congressional preference expressed in MPRSA 
section 103(b) that any open-water disposal of dredged material take 
place at EPA-designated sites, if feasible; and
     EPA's policy view that it is generally environmentally 
preferable to concentrate any open-water disposal at sites that have 
been used historically and at fewer sites, see 40 CFR 228.5(e).

EPA's evaluation considered whether there was a need for any disposal 
site designations for long-term dredged material disposal, including an 
assessment of whether other dredged material management methods could 
reasonably be judged to obviate the need for such designations. Having 
concluded that there was a need for open-water disposal sites, EPA then 
assessed whether there were sites that would satisfy the applicable 
environmental criteria to support a site designation under MPRSA 
section 102(c).
    The MPRSA and EPA regulations promulgated thereunder impose a 
number of requirements related to the designation of dredged material 
disposal sites. These include procedural requirements, specification of 
criteria for use in site evaluations, and the requirement that a Site 
Management and Monitoring Plan (SMMP) must be developed for all 
designated sites. As discussed below, EPA complied with each of these 
requirements in designating the CLIS and WLIS disposal sites.
a. Procedural Requirements
    MPRSA sections 102(c) and 103(b) indicate that EPA may designate 
ocean disposal sites, including for dredged material. EPA regulations 
at 40 CFR 228.4(e) specify that dredged material disposal sites will be 
``designated by EPA promulgation in this [40 CFR] part 228 * * *.'' EPA 
regulations at 40 CFR 228.6(b) direct that when an EIS is prepared 
under EPA policy in order to assess the proposed designation of one or 
more disposal sites, that EIS should include the results of an 
environmental evaluation of the proposed disposal site(s) and the Draft 
EIS (DEIS) should be presented to the public along with a proposed rule 
concerning the disposal site designations. According to 40 CFR 
228.6(b), a Final EIS (FEIS) should be provided at the time of final 
rulemaking for the site designation.
    EPA complied with all of these procedural requirements. The Agency 
prepared a thorough environmental evaluation of both the sites proposed 
for designation and other alternative sites and courses of action 
(other than designating open-water disposal sites). This evaluation was 
presented in a DEIS (and related documents) and a proposed rule for 
promulgation of the disposal sites. EPA published the proposed rule (68 
FR 53687) and a notice of availability of the DEIS (68 FR 53730) for 
public review and comment in September 2003. In addition, EPA went 
beyond the requirements of 40 CFR 228.6(b) by publishing a FEIS for 
public review in April 2004, more than a year before issuance of this 
final rule, thus giving the public an additional opportunity to comment 
on the proposed site designations, and giving EPA further opportunity 
to consider public input, before the final rulemaking for the site 
designations. By this final rule, EPA is now completing the designation 
of these disposal sites by promulgation in 40 CFR part 228.
    Finally, MPRSA sections 102(c)(3) and (4) dictate that EPA must, in 
conjunction with the USACE, develop a site management plan for each 
dredged material disposal site it proposes to designate. MPRSA section 
102(c)(3) also states that in the course of developing such management 
plans, EPA and the Corps must provide an opportunity for public 
comment. EPA and the Corps also met this obligation by publishing for 
public review and comment Draft SMMPs for both the CLIS and WLIS sites. 
The Draft SMMPs were published together with the Draft EIS (as 
Appendices J-1 and J-2, respectively) and the proposed rule in 
September 2003. After considering public comments regarding the SMMPs, 
EPA and the Corps published the Final SMMPs for the two disposal sites 
in April 2004 as Appendices J-1 and J-2 of the FEIS.
b. Disposal Site Selection Criteria
    EPA regulations under the MPRSA identify five general criteria and 
11 specific criteria for use in evaluating locations for the potential 
designation of dredged material disposal sites. See 40 CFR 228.4(e), 
228.5 and 228.6. The evaluation of the CLIS and WLIS disposal sites 
with respect to the five general and 11 specific criteria is discussed 
in detail in the FEIS and supporting documents and is summarized below.
General Criteria (40 CFR 228.5)
    As described in the FEIS, and summarized below, EPA has determined 
that the CLIS and WLIS disposal sites satisfy the five general criteria 
specified in 40 CFR 228.5. This is discussed in Chapter 5 and 
summarized in Table 5-13, ``Summary of Impacts at the Alternative 
Sites,'' of the FEIS.
    1. Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or shellfisheries, and regions of heavy commercial 
or recreational navigation (40 CFR 228.5(a)).
    EPA's evaluation demonstrated that both the CLIS and WLIS disposal 
sites would cause minimal interference with the aquatic activities 
identified in the criterion. The sites were selected because they are 
not located in shipping

[[Page 32503]]

lanes or other major navigation areas and are expected to cause minimal 
interference with fisheries, shellfisheries, and regions of commercial 
or recreational navigation. EPA used Geographic Information System 
(GIS) software to overlay the locations of various uses and natural 
resources of the marine environment on the disposal site locations and 
surrounding areas (including their bathymetry). Analysis of this data 
indicated that use of each site would have minimal potential for 
interfering with other existing or ongoing uses of the marine 
environment in and around the site locations, including lobstering or 
fishing activities. Furthermore, the locations of the two sites should 
minimize any interference with navigation since they lie outside areas 
of heavy commercial or recreational navigation. In addition, both the 
CLIS and WLIS sites have been used for dredged material disposal for 
many years and their use has not significantly interfered with the uses 
identified in the criterion, and mariners in the area are accustomed to 
use of the sites. Finally, time-of-year restrictions (also known as 
``environmental windows'') imposed in order to protect fishery 
resources will typically limit dredged material disposal activities to 
the months of October through April, thus further minimizing any 
possibility of interference with the various activities specified in 
the criterion.
    2. Sites must be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or to undetectable contaminant concentrations or effects before 
reaching any beach, shoreline, marine sanctuary, or known 
geographically limited fishery or shellfishery (40 CFR 228.5(b)).
    EPA's analysis concluded that both the CLIS and WLIS sites satisfy 
this criterion. First, both sites are significant distances from any 
beach, shoreline, marine sanctuary (in fact, there are no federally-
designated marine sanctuaries designated in Long Island Sound), or 
known geographically limited fishery or shellfishery. Second, the sites 
will be used only for the disposal of dredged material determined to be 
suitable for open-water disposal by application of the MPRSA ocean 
dumping criteria. See 40 CFR part 227. These criteria include 
provisions related to water quality and accounting for initial mixing. 
See 40 CFR 227.4, 227.5(d), 227.6(b) and (c), 227.13(c), 227.27, and 
227.29. Data evaluated during development of the EIS, including data 
from monitoring conducted during and after past disposal activities, 
indicates that any temporary perturbations in water quality or other 
environmental conditions at the site during initial mixing from 
disposal operations will be limited to the immediate area of the site 
and will neither cause any significant environmental degradation nor 
reach any beach, shoreline, marine sanctuary, or other important 
natural resource area.
    3. If site designation studies show that any interim disposal sites 
do not meet the site selection criteria, use of such sites shall be 
terminated as soon as an alternate site can be designated (40 CFR 
228.5(c)).
    There are no interim sites in central and western Long Island Sound 
as defined under the Ocean Dumping Regulations (40 CFR 228.14). Neither 
the CLIS nor WLIS sites have ever been subject to an interim site 
designation by EPA. Therefore, this criterion is not applicable to the 
present disposal site designations. While the CLIS site has been used 
for dredged material disposal for many decades, it has never been an 
interim designated site. Prior to the 1980 Ambro Amendment, the MPRSA 
did not apply to Long Island Sound, and disposal was regulated under 
the Clean Water Act and/or other applicable authorities. Since the 
Ambro Amendment, both the CLIS and WLIS disposal sites have been used 
pursuant to the Corps' site selection authority under MPRSA section 
103(b) for federal projects and large private projects (i.e., those 
involving more than 25,000 cubic yards of material). Both sites also 
have been used for smaller private projects under CWA section 404 
authority. Furthermore, EPA's evaluation concludes that both the CLIS 
and WLIS sites satisfy the applicable site selection criteria. 
Therefore, even if this criterion applied, the CLIS and WLIS sites 
would satisfy it.
    4. The sizes of disposal sites will be limited in order to localize 
for identification and control any immediate adverse impacts, and to 
permit the implementation of effective monitoring and surveillance to 
prevent adverse long-range impacts. Size, configuration, and location 
are to be determined as part of the disposal site evaluation (40 CFR 
228.5(d)).
    EPA has determined, based on the information presented in the FEIS, 
that the CLIS and WLIS sites are limited in size to localize for 
identification and control any immediate adverse impacts, and to permit 
the implementation of effective monitoring and surveillance to prevent 
adverse long-range impacts. The combined size of the two sites is 
approximately 3.96 nmi2, which is just half of one-percent 
of the 675 square miles that comprise the entire central and western 
Long Island Sound regions that comprised the study area for the EIS. As 
discussed in the FEIS, both sites are located in depositional areas, 
meaning the material placed in them will tend to stay there. As a 
result, any short-term impacts will be localized and this, together 
with other regulatory requirements (e.g., application of sediment 
testing and MPRSA criteria), will facilitate control of any such 
impacts. The information presented in the FEIS indicates that 
historical disposal at these sites over many years has neither resulted 
in significant long-term adverse environmental effects nor had any 
significant effect outside the sites themselves.
    Furthermore, due to their past use for dredged material disposal, 
these sites have been monitored for many years under the Corps' 
Disposal Area Monitoring System (DAMOS). Thus, experience indicates 
that the site configurations will enable effective short-term and long-
term monitoring. In addition, as described above in the Disposal Site 
Descriptions section, the existing site boundaries of the CLIS site 
have been reconfigured to include two historical disposal mounds 
outside of the existing boundary so that they could be managed and 
monitored along with the rest of the site. As previously described, the 
WLIS site also has been reconfigured from its historical boundaries by 
shifting the entire site to the northwest to exclude a rapidly shoaling 
area within those prior site boundaries. Thus, EPA developed the site 
configurations in conjunction with, and in response to, the substance 
of the site evaluations. The sites are identified by specific 
coordinates spelled out in the regulations promulgated by this 
rulemaking, and the use of precision navigation equipment in both 
dredged material disposal operations and monitoring efforts will enable 
accurate disposal operations and contribute to effective management and 
monitoring of the sites. Detailed plans for the management and 
monitoring of the two sites are described in the SMMPs (Appendix J of 
the FEIS).
    5. EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites where 
historical disposal has occurred (40 CFR 228.5(e)).
    EPA evaluated sites beyond the edge of the continental shelf as 
well as historical disposal sites in Long Island Sound as part of the 
alternatives analysis conducted for the EIS. This evaluation determined 
that the long distances and travel times between the

[[Page 32504]]

dredging locations in central and western Long Island Sound and the 
continental shelf (e.g., 140 miles from Mamaroneck Harbor in 
Westchester County, NY) posed significant environmental, operational, 
safety, and financial concerns, rendering such options unreasonable. 
Environmental concerns include increased risk of encountering 
endangered species during transit, increased fuel consumption and air 
emissions, and greater potential for accidents in transit that could 
lead to dredged material being spilled in unintended areas. As 
described in the Disposal Site Descriptions section, the CLIS and WLIS 
disposal sites both encompass the footprint of historically used sites. 
Long-term monitoring of these sites has shown minimal adverse impacts 
to the adjacent marine environment and rapid recovery of the benthic 
community in the disposal mounds. While there are also other 
historically used disposal sites in the Sound, the analysis in the FEIS 
concluded that the CLIS and WLIS sites were the preferable locations. 
Thus, the designation of the CLIS and WLIS disposal sites is consistent 
with this criterion.
Specific Criteria (40 CFR 228.6)
    In addition to the five general criteria discussed above, 40 CFR 
228.6(a) lists eleven specific factors to be used in evaluating the 
impact of the use of the site(s) for disposal under the MPRSA. 
Compliance with the criteria is described in detail in Chapter 5 and 
summarized in Table 5-13, ``Summary of Impacts at the Alternative 
Sites,'' of the FEIS, and is summarized below.
1. Geographical Position, Depth of Water, Bottom Topography and 
Distance From Coast (40 CFR 228.6(a)(1))
    Based on analyses described in the FEIS, EPA has concluded that the 
geographical position (i.e., location), water depth, bottom topography 
(i.e., bathymetry), and distance from coastlines of the two sites will 
facilitate containment of dredged material within site boundaries, and 
reduce the likelihood of material being transported to the adjacent sea 
floor or any areas of special environmental concern. As described in 
the preceding Disposal Sites Description section and above regarding 
compliance with general criteria 3 and 4 (40 CFR 2285(c) and (d)), both 
sites are located far enough from shore, are deep enough, and have 
appropriate bathymetry to prevent adverse effects to the marine 
environment and coastlines. The CLIS site is located 5.6 nmi south of 
South End Point near East Haven, Connecticut, and more than ten nmi 
north of Shoreham Beach, New York, in water depths ranging from 56 to 
77 feet (17 to 23.5 meters). The WLIS site is located 2.5 nmi south of 
Long Neck Point near Noroton, Connecticut, and two nmi north of Lloyd 
Point, New York, in water depths of 79 to 118 feet (24 to 36 meters). 
As discussed in the FEIS, long-term monitoring of disposal sites in 
Long Island Sound found that creating mounds above a depth of 46 feet 
(14 meters) can result in material being removed from the mounds by 
currents (FEIS, p. 3-17). Both sites are of a sufficient depth to allow 
the disposal of the amount of material that is projected over the 20-
year planning horizon without exceeding this depth threshold. As was 
also discussed in the FEIS, both sites are located in depositional 
areas, meaning the material placed in them will tend to stay there. As 
a result, any short-term impacts will be localized and this, together 
with other regulatory requirements described elsewhere in this 
document, will facilitate control of any such impacts.
2. Location in Relation To Breeding, Spawning, Nursery, Feeding, or 
Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR 
228.6(a)(2))
    EPA considered the proposed CLIS and WLIS disposal sites in 
relation to breeding, spawning, nursery, feeding, or passage areas for 
adult and juvenile phases (i.e., life stages) of living resources in 
Long Island Sound. From this analysis, EPA concluded that, while 
disposal of suitable dredged material at the CLIS and WLIS sites would 
cause some short-term, localized adverse effects, overall it would not 
cause unacceptable or unreasonable adverse effects to the habitat 
functions and living resources specified in the above criterion. The 
combined size of the two sites is approximately 3.96 nmi2, which is 
just half of one-percent of the 675 square miles that comprise the 
entire central and western Long Island Sound regions that comprised the 
study area for the EIS.
    Generally, there are three primary ways that dredged material 
disposal can adversely affect marine resources. First, disposal can 
cause physical impacts by injuring or burying less mobile fish, 
shellfish, and benthic organisms, as well as their eggs and larvae. 
Second, tug and barge traffic transporting the dredged material to a 
disposal site may collide or otherwise interfere with marine mammals 
and reptiles. Third, contaminants in the dredged material may 
bioaccumulate through the food chain. However, EPA and the other 
federal and state agencies involved with regulating dredging and 
dredged material disposal have adopted management techniques that 
greatly reduce the potential for these impacts to occur.
    One such technique is the use of environmental windows, or time-of-
year restrictions, for both dredging and dredged material disposal. 
This type of restriction has been a standard practice for more than a 
decade in Long Island Sound, and New England generally, and is 
incorporated in Corps permits or authorizations in response to 
consultation with federal and state natural resource agencies (e.g., 
NMFS). Dredged material disposal in Long Island Sound is generally 
limited to the period between October 1 and April 30, but dredging 
windows are often shorter depending on the location of specific 
dredging projects in relation to certain fish and shellfish species. 
For example, dredging in nearshore areas where winter flounder spawning 
occurs is generally prohibited between February 1-April 1, dredging 
that may interfere with anadromous fish runs is generally prohibited 
between April 1-May 15, and dredging that may adversely affect 
shellfish is prohibited between June 1-September 30. These dredging 
windows, in effect, serve to further restrict periods during which 
dredged material would be disposed.
    Another benefit of using environmental windows is that they reduce 
the likelihood of dredged material disposal activities interfering with 
marine mammals and reptiles. While there are several species, such as 
harbor porpoises, long-finned pilot whales, seals, and sea turtles, 
that either inhabit or migrate through Long Island Sound, most of them 
either leave the Sound during the winter months for warmer waters to 
the south or are less active and remain near the shore. There also are 
many other mobile species of fish (e.g., striped bass, bluefish, scup) 
and invertebrates (e.g., squid) that leave the Sound during the winter 
for either deeper water or warmer waters to the south, thus avoiding 
the time of year when most dredging and dredged material disposal 
occurs. The use of environmental windows has been refined over time and 
is now considered an effective management tool to minimize impacts to 
marine resources.
    There will be some localized impacts to fish, shellfish, and 
benthic organisms, such as clams and worms, that are present at a 
disposal site (or in the water column directly above the site) during a 
disposal event. The sediment plume may entrain and smother some fish in 
the water column, and may bury some fish, shellfish, and other marine

[[Page 32505]]

organisms on the sea floor. There usually is a short-term loss of 
forage habitat in the immediate disposal area, but the DAMOS program 
has documented the recolonization of disposal mounds by benthic infauna 
within 1-3 years after disposal.
    To further reduce potential environmental impacts associated with 
dredged material disposal, the dredged material from each proposed 
dredging project will be subjected to the MPRSA sediment testing 
requirements set forth at 40 CFR part 227 to determine its suitability 
for open-water disposal. Suitability for open-water disposal is 
determined by testing the proposed dredged material for toxicity and 
bioaccumulation and by quantifying the risk to human health from 
consuming marine organisms that are exposed to dredged material and its 
associated contaminants using a risk assessment model. If it is 
determined that the sediment is unsuitable for open-water disposal--
that is it may unreasonably degrade or endanger human health or the 
marine environment--it cannot be disposed at disposal sites designated 
under the MPRSA. See 40 CFR 227.6.
    EPA complied with the ESA by consulting with and receiving 
concurrence from the NMFS and USFWS that the designation of WLIS and 
CLIS was not likely to adversely affect federally listed species under 
its jurisdiction. Additionally, EPA consulted with NMFS under the 
MSFCMA on potential impacts to essential fish habitat (EFH). NMFS 
determined that the use of environmental windows and the stringent 
testing requirements were sufficient steps to minimize impacts to EFH 
and did not offer any additional conservation recommendations. Further 
details on these consultations are provided in the FEIS and the section 
below describing compliance with the ESA and MSFCMA.
    EPA recognizes that dredged material disposal causes some short-
term, localized adverse effects to marine organisms in the immediate 
vicinity of each disposal event. But because disposal is restricted to 
two small sites (see above regarding compliance with general criteria 5 
(40 CFR 2285(e)) and to only several months of the year, EPA concludes 
that designating WLIS and CLIS will not cause unacceptable or 
unreasonable adverse impacts to breeding, spawning, nursery, feeding, 
or passage areas of living resources in adult or juvenile phases.
3. Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3))
    EPA's analysis concluded that both the CLIS and WLIS sites satisfy 
this criterion. Both sites are far enough away from beaches, parks, 
wildlife refuges, and other areas of special concern to prevent adverse 
impacts to these amenities and, as previously noted, there are no 
marine sanctuaries in Long Island Sound. As previously described, the 
CLIS and WLIS disposal sites are 5.6 nmi and two nmi from the nearest 
shore, respectively. Therefore, the closest beaches, parks, wildlife 
refuges, or other areas of special concern are at least two nmi from 
either of the two disposal sites. Based on modeling results that are 
presented in section 5.5.3 of the FEIS, and past monitoring of actual 
disposal activities, this distance is beyond any expected transport of 
dredged material due to tidal motion or currents. As noted above, any 
temporary perturbations in water quality or other environmental 
conditions at the site during initial mixing from disposal operations 
will be limited to the immediate area of the site and will not reach 
any beach, parks, wildlife refuges, or other areas of special concern.
    Thus, EPA does not anticipate that the continued use of the CLIS 
and WLIS disposal sites will cause any adverse impacts to beaches or 
other amenity areas.
4. Types and Quantities of Wastes Proposed To Be Disposed of, and 
Proposed Methods of Release, Including Methods of Packing the Waste, if 
Any (40 CFR 228.6(a)(4))
    The typical composition of dredged material to be disposed at the 
sites is expected to range from predominantly ``clay-silt'' to ``mostly 
sand.'' This expectation is based on data from historical dredging 
projects from the central and western regions of Long Island Sound. For 
federal dredging projects and private projects generating more 25,000 
cubic yards of dredged material, EPA and the USACE will conduct 
suitability determinations following applicable criteria for testing 
and evaluating dredged material under 40 CFR part 227 and further 
guidance in the ``Regional Implementation Manual for the Evaluation of 
Dredged Material Proposed for Disposal in New England Waters' (EPA, 
2004), before authorizing disposal under the MPRSA. Private dredging 
projects generating up to 25,000 cubic yards will continue to be 
regulated under CWA section 404. The requirements under the MPRSA and 
the CWA are discussed in detail in the EIS. The CLIS and WLIS sites 
would receive dredged material that is transported by either government 
or private contractor hopper dredges or oceangoing bottom-dump barges 
towed by tugboat. Both types of equipment release the material at or 
very near the surface, which is the standard operating procedure for 
this activity. The disposal of this material will occur at specific 
coordinates marked by buoys and will be placed so as to concentrate 
material from each disposal project. This concentrated placement is 
expected to help minimize bottom impacts to benthic organisms. In 
addition, there are no plans to pack or package dredged material prior 
to disposal.
    Furthermore, it should be emphasized that the CLIS and WLIS sites 
are only being designated for the disposal of dredged material; 
disposal of other types of material will not be allowed at these sites. 
It also should be noted that the disposal of certain other types of 
material is expressly prohibited by the MPRSA and EPA regulations 
(e.g., industrial waste, sewage sludge, chemical warfare agents, 
inadequately characterized materials) (33 U.S.C. 1414b; 40 CFR 227.5). 
For all of these reasons, no significant adverse impacts are expected 
to be associated with the types and quantities of dredged material that 
may be disposed at the sites.
5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))
    Monitoring and surveillance are expected to be feasible at both 
sites. Both sites are readily accessible for bathymetric and side-scan 
sonar surveys and have been successfully monitored by the Corps over 
the past 20 years under the DAMOS program. Upon designation of the 
sites, monitoring will continue under the DAMOS program in accordance 
with the most current approved Site Management and Monitoring Plan 
(SMMP) for each site. A Draft SMMP for each site was issued for public 
comment in conjunction with the DEIS and was incorporated as Appendix J 
to the DEIS, while Final SMMPs were then completed and incorporated as 
Appendix J to the FEIS. The SMMPs may be subject to periodic revisions 
based on the results of site monitoring and other new information. Any 
such revisions will be closely coordinated with other federal and state 
resource management agencies and other stakeholders during the review 
and approval process, and will become final only when approved by EPA 
in conjunction with the USACE. See 33 U.S.C. 1413 (c)(3).

[[Page 32506]]

6. Dispersal, Horizontal Transport and Vertical Mixing Characteristics 
of the Area, Including Prevailing Current Direction and Velocity, if 
Any (40 CFR 228.6(a)(6))
    Although the interactions of bathymetry, wind-generated waves, and 
river and ocean currents in Long Island Sound are complex, the CLIS and 
WLIS sites are located in areas that are generally calm except during 
storms, when dredging and dredged material disposal would not be 
occurring anyway. Past monitoring of disposal activity at these two 
sites has revealed minimal drift of sediment out of the disposal site 
as it passed through the water column, and disposal site monitoring has 
confirmed that peak wave-induced bottom current velocities are not 
sufficient to cause significant erosion of dredged material placed at 
either of the two sites. Monitoring has indicated that the CLIS and 
WLIS sites are depositional locations that collect, rather than 
disperse, sediment. For these reasons, EPA has determined that the 
dispersal, horizontal transport, and vertical mixing characteristics, 
as well as the current velocities and directions at the CLIS and WLIS 
sites are appropriate to support their designation as dredged material 
disposal sites.
7. Existence and Effects of Current and Previous Discharges and Dumping 
in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7))
    As previously described in the Disposal Sites Descriptions section, 
the CLIS site has received close to 14 million cubic yards of dredged 
material since 1941, and predecessors to the CLIS site in the same 
general vicinity received dredged material since the late 1800s (with 
no reliable records of volumes disposed). The WLIS site has been used 
for dredged material disposal since 1982, receiving 1.7 million cubic 
yards since then. Prior to 1982, sites in the immediate vicinity of 
WLIS, including the Eaton's Neck, Stamford, and Norwalk historical 
disposal sites, served the dredging needs of the western Sound.
    Until the passage of the CWA in 1972, dredged material disposal was 
not a heavily regulated activity. Since 1972, open-water disposal in 
Long Island Sound has been subject to the sediment testing and 
alternatives analysis provisions of section 404 of the CWA. With 
passage of the first Ambro Amendment in 1980, dredged material disposal 
from all federal projects and non-federal projects generating more than 
25,000 cubic yards of material became subject to the requirements of 
both CWA section 404 and the MPRSA. The result of these increasingly 
stringent regulatory requirements for dredged material disposal is that 
there has been a steady, measurable improvement in the quality of 
material that has been placed at the CLIS and WLIS disposal site over 
the past 33 years.
    The CLIS and WLIS disposal sites have both been used on a 
consistent basis since the early 1980s pursuant to the Corps' short-
term site selection authority under section 103(b) of the MPRSA (33 
U.S.C. 1413(b)). Since then, disposal operations at these sites have 
been carefully managed and the material disposed there has been 
monitored. Past use of these sites generally makes them preferable to 
more pristine sites that have either not been used or have been used in 
the more distant past. See 40 CFR 228.5(e). Beyond this, however, EPA's 
evaluation of data and modeling results indicates that these past 
disposal operations have not resulted in unacceptable or unreasonable 
environmental degradation, and that there should be no such adverse 
effects in the future from the projected use of the CLIS and WLIS 
disposal sites. As part of this conclusion, discussed in detail in the 
FEIS, EPA found that there should be no significant adverse cumulative 
environmental effects from continuing to use these sites on a long-term 
basis for dredged material disposal in compliance with all applicable 
regulatory requirements regarding sediment quality and site usage.
8. Interference With Shipping, Fishing, Recreation, Mineral Extraction, 
Desalination, Fish and Shellfish Culture, Areas of Special Scientific 
Importance and Other Legitimate Uses of the Ocean (40 CFR 228.6(a)(8))
    In evaluating whether disposal activity at the sites could 
interfere with shipping, fishing, recreation, mineral extraction, 
desalination, fish or shellfish culture, areas of scientific importance 
and other legitimate uses of the ocean, EPA considered both the effects 
of placing dredged material on the bottom of the Sound at the CLIS and 
WLIS sites and any effects from vessel traffic associated with 
transporting the dredged material to the disposal sites. From this 
evaluation, EPA concluded there would be no unacceptable or 
unreasonable adverse effects on the considerations noted in this 
criterion. Some of the factors listed in this criterion have already 
been discussed above due to its overlap with aspects of certain other 
criteria. Nevertheless, EPA will address each point below.
    The disposal sites are not located in shipping lanes, and the 
vessel traffic generated by disposal activity is expected to be similar 
to that which has occurred over the past 20 years without interfering 
with other shipping activity. Moreover, research by EPA and the USACE 
concluded that after disposal at the sites, resulting water depths will 
be sufficient to permit navigation in the area without interference. 
(And by providing an open-water disposal alternative for use in the 
absence of environmentally preferable practicable alternatives, the 
sites are likely to facilitate navigation in many of the harbors, bays, 
rivers and channels around the Sound.) A U.S. Coast Guard (USCG) 
lightering area currently overlaps the northeast corner of the CLIS 
site, which could have resulted in anchors disturbing disposal mounds 
and causing sediment resuspension, but the USCG has agreed to shift the 
designated lightering area boundary to ensure that existing mounds and 
future disposed dredged material will not be disturbed. This shift is 
also not expected to have any adverse effect on local navigation. 
Moreover, as discussed above, dredged material disposal at the site 
will only occur in a limited number of months during each year to due 
to environmental windows that restrict when dredging and related 
disposal may occur.
    EPA carefully evaluated the potential effects on commercial and 
recreational fishing for both finfish and shellfish (including lobster) 
of designating the CLIS and WLIS sites for dredged material disposal 
and concluded that there would be no unreasonable or unacceptable 
adverse effects. As discussed above in relation to other site 
evaluation criteria,