Ocean Disposal; Amendments to Restrictions on Use of Dredged Material Disposal Sites in the Central and Western Regions of Long Island Sound; Connecticut, 44220-44230 [2016-16147]
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(1) Areas of Alaska that are not
accessible by the Federal Aid Highway
System (FAHS).
(2) Areas of Alaska that meet all of the
following criteria:
(i) The only connection to the FAHS
is through the Alaska Marine Highway
System, or the stationary CI ICE
operation is within an isolated grid in
Alaska that is not connected to the
statewide electrical grid referred to as
the Alaska Railbelt Grid.
(ii) At least 10 percent of the power
generated by the stationary CI ICE on an
annual basis is used for residential
purposes.
(iii) The generating capacity of the
source is less than 12 megawatts, or the
stationary CI ICE is used exclusively for
backup power for renewable energy.
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[FR Doc. 2016–16045 Filed 7–6–16; 8:45 am]
BILLING CODE 6560–50–P
I. Background
II. Response to Comments
III. Changes From the Proposed Rule
IV. Compliance With Statutory and
Regulatory Requirements
V. Final Action
VI. Statutory and Executive Order Reviews
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 228
[EPA–R01–OW–2016–0068; FRL–9948–61–
Region 1]
Ocean Disposal; Amendments to
Restrictions on Use of Dredged
Material Disposal Sites in the Central
and Western Regions of Long Island
Sound; Connecticut
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) today is amending federal
regulations that designated, and placed
restrictions on the use of, the Central
Long Island Sound and Western Long
Island Sound dredged material disposal
sites, located offshore from New Haven
and Stamford, Connecticut,
respectively. The amended regulations
incorporate standards and procedures
for the use of those sites consistent with
those recommended in the Long Island
Sound Dredged Material Management
Plan, which was completed by the U.S.
Army Corps of Engineers on January 11,
2016. The Dredged Material
Management Plan identifies a wide
range of alternatives to open-water
disposal and recommends standards
and procedures for determining which
alternatives to pursue for different
dredging projects, so as to reduce or
eliminate the open-water disposal of
dredged material.
DATES: This final regulation is effective
on August 8, 2016.
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SUMMARY:
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EPA has established a
docket for this action under Docket
Identification No. EPA–R01–OW–2016–
0068. All documents in the docket are
listed on the https://www.regulations.gov
Web site. Publically available docket
materials are also available from EPA’s
Web site https://www.epa.gov/oceandumping/dredged-materialmanagement-long-island-sound.
FOR FURTHER INFORMATION CONTACT:
Stephen Perkins, U.S. Environmental
Protection Agency, New England
Regional Office, 5 Post Office Square,
Suite 100, Mail Code: OEP06–3, Boston,
MA 02109–3912, telephone (617) 918–
1501, electronic mail: perkins.stephen@
epa.gov.
SUPPLEMENTARY INFORMATION:
Organization of this document. The
following outline is provided to aid in
locating information in this preamble.
ADDRESSES:
I. Background
On February 10, 2016, EPA published
in the Federal Register (81 FR 7055) a
proposed rule (the Proposed Rule)
amending federal regulations that
designated, and placed restrictions on
the use of, the Central Long Island
Sound (CLDS) and Western Long Island
Sound (WLDS) dredged material
disposal sites, located offshore from
New Haven and Stamford, Connecticut,
respectively. The existing restrictions on
the sites were imposed when EPA
designated CLDS and WLDS (70 FR
32498) (the 2005 Rule), to ensure
appropriate use and management of the
designated disposal sites and to support
the common goal of New York and
Connecticut to reduce or eliminate the
disposal of dredged material in Long
Island Sound.
To support this goal, the restrictions
in the 2005 Rule contemplated that
there would be a regional dredged
material management plan (DMMP) for
Long Island Sound that would help to
guide the management of dredged
material from projects which occur after
completion of the DMMP. The amended
restrictions in this Final Rule
incorporate standards and procedures
for the use of those sites consistent with
those recommended in the Long Island
Sound DMMP, which was completed by
the U.S. Army Corps of Engineers
(USACE) on January 11, 2016.
The restrictions imposed on the sites
in the 2005 Rule also included
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conditions that specified that use of the
sites would be suspended if, within 120
days of completion of the DMMP, and
subject to EPA’s consideration of public
comments, EPA does not issue legally
binding final amendments adopting
such procedures and standards. Any
such suspension in the use of the sites
would be lifted if and when EPA issues
the required final rule.
II. Response to Comments
EPA received comments on the
Proposed Rule from 119 individuals,
groups or entities. Comments were
received from the Connecticut
Congressional Delegation, USACE, the
states of Connecticut and New York, a
number of municipalities,
environmental groups, harbor and
marine trade groups, and many private
citizens. Approximately eighty percent
of the commenters supported the
Proposed Rule, with some offering
suggested improvements. The remainder
expressed opposition in part or in whole
to the Proposed Rule. A document
containing copies of all of the public
comments received by EPA and a
document containing EPA’s response to
each of the comments have been placed
in the public docket and on the Web site
identified in the ADDRESSES section of
this document. There was significant
overlap among the comments received.
Below, EPA summarizes the main
points of the commenters and provides
responses.
Comment #1. A number of
commenters, including the states of
Connecticut and New York, asked that
EPA be explicit in retaining the
common goal of the 2005 Rule—to
reduce or eliminate open-water disposal
of dredged material in Long Island
Sound.
Response #1. EPA did not intend to
signal any change to the goal of the 2005
Rule. In fact, the goal was so stated in
the first paragraph of the Background
section of the Proposed Rule. EPA did
not include the goal statement in the
proposed regulations because it was
previously included in a provision
addressing development of the DMMP
and EPA deleted that provision because
the DMMP had been completed. Again,
EPA did not by this deletion intend to
signal a change in the goal. Therefore,
to address this comment, EPA has
added a sentence, restating the common
goal, in the introductory paragraph
(b)(4)(vi) in the Final Rule.
Comment #2. The states of
Connecticut and New York proposed
similar ideas for revisions to the
Proposed Rule intended to spur
increased beneficial use and result in
staged reductions in open water
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disposal of dredge material over time.
The suggested revisions include
creation of a Steering Committee,
consisting of high level representatives
from the states, EPA and USACE. The
comments propose that the charge to the
Steering Committee would be to
develop a baseline for the amount of
dredged material being placed in open
water and the amount being beneficially
used, and to establish a reasonable and
practicable series of stepped objectives
(with timeframes) for reducing the
amount of open-water placement and
increasing the amount of beneficially
used material, while also recognizing
that there will be fluctuations in annual
volumes of dredged material generated
due to the very nature of the dredging
program. The comments also call for the
stepped objectives to incorporate an
adaptive management approach toward
continuous improvement, and for the
charge to the Steering Committee also to
include developing accurate methods to
track reductions, with due consideration
for annual fluctuations in the amount of
dredging, and reporting on progress.
The comments suggest that when
tracking progress, it would be
recognized that exceptional
circumstances may result in delays in
meeting an objective. Exceptional
circumstances should be infrequent,
irregular and unforeseeable. Certain
other commenters also supported the
inclusion of a staged reduction in openwater disposal.
Response #2. EPA agrees with
Connecticut and New York that it would
be useful to formally establish the Long
Island Sound Steering Committee
(Steering Committee), consisting of high
level representatives from the two
states, EPA, USACE, and, as
appropriate, other federal and state
agencies. A Steering Committee,
consisting of the same parties, was
established previously to guide the
development of the DMMP and has
provided a useful forum for interagency
collaboration on dredged material
management in the Long Island Sound
region. Other participants could include
the National Oceanic and Atmospheric
Administration’s (NOAA) National
Marine Fisheries Service (NMFS),
which had a seat on the previous
Steering Committee, and the state of
Rhode Island, which had a seat on the
previous Long Island Sound Regional
Dredging Team (LIS RDT), and may
have more interest now that the LIS
RDT’s geographic scope includes
eastern Long Island Sound. Consistent
with the comments, the Final Rule
includes a provision establishing a
Steering Committee to provide policy-
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level direction to the LIS RDT and
facilitate high-level collaboration among
the agencies critical to accelerating the
development and use of beneficial
alternatives for dredged material.
The charge to the Steering Committee
includes: Developing a baseline for the
volume and percentage of dredged
material being placed in open water and
the volume and percentage being
beneficially used; establishing a
reasonable and practicable series of
stepped objectives (with timeframes) for
reducing the amount of dredged
material placed in open-water sites and
increasing the amount of material that is
beneficially used, while also
recognizing that there will be
fluctuations in annual volumes of
dredged material generated due to the
very nature of the dredging program;
and developing methods for accurately
tracking reductions with due
consideration for annual fluctuations.
EPA agrees, and has provided, that the
stepped objectives should incorporate
an adaptive management approach
toward continuous improvement. The
Final Rule also provides that, when
tracking progress, the Steering
Committee will recognize that
exceptional circumstances may result in
delays in meeting an objective, and that
exceptional circumstances should be
infrequent, irregular and unpredictable.
In carrying out its tasks, the Steering
Committee will guide and utilize the
LIS RDT, as appropriate.
To be clear, neither the 2005 Rule nor
the new amendments to the Rule require
or command either Connecticut or New
York (or Rhode Island) to participate on
the Steering Committee or the LIS RDT.
Participation by the states is voluntary.
That said, EPA expects that the states
will choose to participate on the
Steering Committee and the LIS RDT.
This expectation is based on several
factors: (1) Connecticut and New York
both commented in favor of constituting
a Steering Committee and LIS RDT as
discussed above; (2) the Steering
Committee and LIS RDT will provide a
dedicated venue for federal/state interagency communication and
collaboration on dredging and dredged
material disposal projects of interest and
these sorts of discussions already take
place and are often necessary due to the
legal and programmatic responsibilities
of the various agencies; and (3) New
York, Connecticut, and Rhode Island
participated on the LIS RDT created
under the 2005 Rule and New York and
Connecticut participated on the Steering
Committee associated with development
of the DMMP. Given that EPA
anticipates that Connecticut and New
York, and possibly Rhode Island, will
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voluntarily participate on the Steering
Committee and the LIS RDT, EPA also
expects that each of the agencies will
commit the necessary resources to make
that participation on the Steering
Committee and LIS RDT meaningful,
including resources needed to support
collection of data for establishing the
baseline and tracking and reporting on
the future disposition of dredged
materials.
Comment #3. Some commenters
encouraged giving increased attention to
implementation, as distinguished from
simply identification, of feasible
alternatives, and encouraged funding
demonstration/pilot programs for
alternative methods of beneficial use.
They noted the importance of the states
and all stakeholders working together to
find and promote alternative uses for
dredged material and encouraged the
states to amend regulations to facilitate
beneficial, environmentally sound use
of suitable materials upland. The states
of Connecticut and New York expressed
their commitment to working with
federal and state partners to develop
and promote the use of innovative and
practicable alternatives to open water
disposal. Activities that may facilitate
and establish a path forward include
committing to jointly implement two
pilot projects, identifying possible
resources, and removing regulatory
hurdles.
Response #3. EPA agrees with the
commenters that a concerted,
collaborative effort among state and
federal partners will be needed to spur
greater use of beneficial alternatives,
including piloting alternatives,
identifying possible resources, and
eliminating regulatory barriers, when
appropriate. EPA believes the Steering
Committee should guide these efforts,
with the support of the LIS RDT, and
has included this among the
responsibilities of the Steering
Committee and LIS RDT in the Final
Rule.
Comment #4. The states of
Connecticut and New York expressed
support for EPA’s proposal to charge the
LIS RDT to review each project and
require beneficial use of dredged
material, where practicable, utilizing the
EPA definition of practicable. They felt
it was important to note that the LIS
RDT should be consulted starting in the
early stages of project planning for
consideration of beneficial use
opportunities.
Response #4. EPA agrees that the LIS
RDT will be most effective in its role
reviewing dredging projects if it is
actively encouraging beneficial use
alternatives and if there is an
expectation that dredging project
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proponents should consult with the LIS
RDT early in the process of planning a
project to have a full view of possible
alternatives for their project. The Final
Rule contains language clarifying this
aspect of the LIS RDT review process. It
also should be noted that the LIS RDT
makes recommendations to the USACE;
the LIS RDT does not directly ‘‘require’’
that dredged material be managed in
any particular way.
In response to this comment and
Comment #5 below, the Final Rule
clarifies certain of the roles and
expectations of the LIS RDT. It
establishes the relationship between the
Steering Committee, which provides
policy-level direction to the LIS RDT,
and the LIS RDT, which has the
responsibility for execution. It also
provides additional detail on the
organization and procedures for the LIS
RDT. EPA views the charter under
which the LIS RDT has operated during
the development of the DMMP as a
useful starting point for a new charter
that encompasses the new roles,
responsibilities, and makeup of the LIS
RDT. The current LIS RDT charter will
serve as the interim guide for the LIS
RDT’s process until a new charter is
developed.
Comment #5. USACE believes the role
of the LIS RDT should be one of an
informational resource and collaborator
rather than a body charged with
providing ‘‘recommendations’’ to the
Corps. They raised concerns regarding
whether the role of the LIS RDT is in
compliance with the Federal Advisory
Committee Act (FACA) since it is
required to provide ‘‘recommendations’’
to the USACE.
Response #5. EPA notes that the 2005
Rule established the LIS RDT and
charged it with making
‘‘recommendations’’ until the
completion of the DMMP. The Proposed
Rule incorporated the same language in
providing for the LIS RDT to continue
into the future. The ‘‘recommendations’’
of the LIS RDT are not formal decisions
subject to appeal, but, rather, are advice
to the USACE as to how the LIS RDT
thinks particular dredged material
should be managed. The LIS RDT will
attempt to make consensus
recommendations to the USACE, but if
consensus cannot be achieved,
individual LIS RDT member agencies
may offer their own comments through
the standard regulatory process.
Presumably, recommendations will be
based upon whether or not the LIS RDT
(or an individual agency) believes it has
identified one or more practicable
alternatives to open-water disposal for a
particular project.
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Recommendations from the LIS RDT
or its members are not binding upon the
USACE, EPA or any other state or
federal agency. While the USACE must
fully consider the recommendations,
EPA does not intend for the LIS RDT to
in any way usurp the USACE’s authority
to make independent decisions
regarding the placement of dredged
material. At the same time, the USACE’s
decisions regarding whether to
authorize dredged material disposal
under the MPRSA continue to be subject
to EPA review and concurrence under
Section 103(c) of the MPRSA, 33 U.S.C.
1413(c), and 40 CFR 225.2. While EPA
will also consider recommendations of
the LIS RDT or its members, EPA also
does not intend for the LIS RDT to in
any way usurp EPA’s authority to make
independent decisions in its review of
USACE decisions regarding whether to
authorize the open-water disposal of
dredged material.
EPA does not intend for the LIS RDT,
in the exercise of its responsibility to
review projects, to unduly delay the
USACE’s decision-making. EPA expects
that the LIS RDT will report to the
USACE on its review of specific projects
within 30 days of receipt of project
information. If the LIS RDT fails to
report to the USACE in this timeframe,
the USACE may proceed with its permit
decision process. The Final Rule
contains language clarifying this point.
Regarding USACE’s concerns about
the FACA, EPA has carefully reviewed
the roles of the LIS RDT and Steering
Committee as contained in the Final
Rule and finds that the LIS RDT and
Steering Committee are exempt from the
FACA under 2 U.S.C. 1534(b). See also
Memorandum by the Office of
Management and Budget (OMB)
entitled, ‘‘SUBJECT: Guidelines and
Instructions for Implementing Section
204, ‘State, Local, and Tribal
Government Input,’ of Title II of P.L.
104–4’’ (Sept. 21, 1995). At the same
time, creating federal/state committees
such as the LIS RDT and Steering
Committee to share information and
advice and recommendations is also
consistent with the FACA and relevant
implementing guidance from OMB.
Comment #6. New York State
requested that, to provide additional
‘‘surety’’ that the goal of reducing or
eliminating open water disposal is met,
an additional provision be included in
the rule to provide that if there is an
initial failure to maintain or reduce the
amount of disposal over the next ten
years, as measured at year 10, then the
rule can be re-opened upon a petition to
EPA.
Response #6. EPA is confident that
the restrictions contained in today’s
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Final Rule will be sufficient to make
progress toward the goal of reducing or
eliminating open-water disposal.
However, if the volume of dredged
material disposed of at the sites, as
measured ten years from now, has
increased, it may be an indication that
the standards and procedures contained
in the Final Rule have not succeeded as
intended. Alternatively, it may indicate
that despite successful efforts to
maximize dredged material management
by methods other than open-water
disposal, it is even more difficult to
identify or develop such alternative
methods of dredged material
management than is currently
anticipated. In either case, EPA agrees
that it is reasonable to include an
explicit provision in the Final Rule that
provides any party with the opportunity
under these circumstances to petition
EPA to amend the regulations. EPA has
added paragraph (b)(4)(vi)(H) to the
Final Rule, to provide for this. EPA has
not, however, prejudged whether it will
find any regulatory amendments to be
appropriate. EPA will assess and decide
upon any such petition based on the
facts and law prevailing at the time of
the petition.
Comment #7. Several commenters
noted that cost should not be the
overwhelming factor in the decisionmaking process. In their view, cost
seems only assigned to beneficial use.
They believe cost and potential funding
mechanisms for greater use of
alternatives should be included.
Response #7. Cost is a very important
component of the decision-making
process. USACE is constrained by
statute, regulation, and policies that
govern what they can use federal funds
for. The Federal Base Plan for any
particular project is defined as the least
cost, environmentally acceptable
alternative for constructing the project
that is consistent with sound
engineering practices. Thus, projects are
planned, designed and constructed in a
manner that efficiently uses very limited
federal fiscal resources and that meets
applicable environmental standards.
The term Federal Standard is often used
synonymously with Federal Base Plan,
and is defined in USACE regulations as
the least costly dredged material
placement alternative identified by the
USACE that is consistent with sound
engineering practices and meets the
environmental standards established by
EPA’s Clean Water Act (CWA)
§ 404(b)(1) guidelines evaluation
process or EPA’s ocean dumping criteria
under the MPRSA. [33 CFR 335.7] See
also 33 CFR 336.1(c)(1).
If a beneficial use is selected for a
project and that beneficial use happens
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to be (or be part of) the Federal Base
Plan option for the project, the costs of
that beneficial use are assigned to the
navigational purpose of the project.
Beneficial use project costs exceeding
the cost of the Federal Base Plan
(Federal Standard) option become either
a shared federal and non-federal
responsibility, or entirely a non-federal
responsibility, depending on the type of
beneficial use and the applicability of
federal funding authority.
The DMMP makes clear the USACE’s
willingness to use the authorities
available to it to pay for what it lawfully
can. The authorities that allow USACE
to pursue alternatives beyond the Base
Plan all require some prescribed
percentage of non-federal cost-sharing.
Identifying future sources of non-federal
cost sharing is one of the important
challenges for the Steering Committee
and LIS RDT.
Beyond trying to find funding sources
for costs above the Federal Standard,
another important role for the LIS RDT
is to identify incentives and remove
barriers to beneficial use such that the
cost of alternatives becomes more
competitive with open-water disposal. It
has become clear in recent years that
sandy dredged material is a valuable
commodity, especially along New
England’s beachfronts. Thus there are
economic as well as environmental
factors that result in most suitable sandy
dredge material being used beneficially,
principally for beach and nearshore bar
nourishment. The next challenge is to
find economic and beneficial
environmental uses for suitable silty
material. As coastal resiliency becomes
an increasingly important priority, EPA
is hopeful that, and thinks that there is
a good chance that, opportunities for
beneficial uses of silty material will
emerge and expand.
Comment #8. USACE expressed
concern that the Proposed Rule could
have a significant adverse impact on
federal navigation by potentially adding
significant costs to USACE projects.
Specifically, the USACE is concerned
that a scenario could arise where a
practicable alternative is identified that
exceeds the Federal Standard and
therefore would require a non-federal
sponsor to fund the difference in cost.
If a non-federal sponsor could not do so
or refused to do so, disposal at the CLDS
or WLDS would then be prohibited and
the project could not go forward because
of the existence of a practicable
alternative to open-water disposal. As
such, this provision of the Proposed
Rule would impact the USACE’s
application of the Federal Standard and
negatively impact maintenance of
Federal Navigation Projects in Long
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Island Sound. The USACE also
expressed a related concern that the
requirement that any practicable
alternative be fully utilized for the
maximum volume of material
practicable could require USACE to
dispose of material at more than one
location, potentially adding significant
cost.
The concern about the possibility that
a project might not go forward was
echoed by the Connecticut
Congressional Delegation. In order to
effectively maintain the balance
between environmental and economic
benefits of Long Island Sound, they
urged that some certainty regarding the
potential cost of maintenance projects
must be included in the final language.
Knowing the makeup of dredged
material from each navigation project is
different, they understand that
placement alternatives need to be
examined on a case-by-case basis. They
noted that EPA itself recognizes in the
Proposed Rule that the lack of clarity on
future project costs ‘‘could result in
deferral of maintenance or improvement
projects that could impact navigation.’’
The delegation expressed hope that the
Final Rule will more clearly address this
issue.
Response #8. The term ‘‘practicable
alternative’’ is defined in 40 CFR
227.16(b) of EPA’s MPRSA regulations
as an alternative that is ‘‘available at
reasonable incremental cost and energy
expenditures, [and] which need not be
competitive with the costs of ocean
dumping, taking into account the
environmental benefits derived from
such activity, including the relative
adverse environmental impacts
associated with the use of alternatives to
ocean dumping.’’ The definition has
been part of the restrictions on the CLDS
and WLDS since the 2005 Rule
(compare (b)(4)(vi)(I)(1) and (2) in the
2005 Rule with (b)(4)(vi)(C)(1) and (2) in
the Proposed Rule). The accompanying
discussions in the preamble of the 2005
Rule and the Proposed Rule are
essentially the same. In the nearly
eleven years that the restrictions have
been in place there have been no
instances where a dredging project
could not go forward on this basis.
Furthermore, neither the 2005 Rule nor
the current amendments create a new
definition of practicable; they simply
cross-reference and rely upon the preexisting definition in EPA’s regulations
at 40 CFR 227.16(b), which was
promulgated in 1977. 42 FR 2476, 2479
(Jan. 11, 1977). Meanwhile, the USACE
defines ‘‘practicable’’ as follows:
‘‘Practicable means available and
capable of being done after taking into
consideration cost, existing technology,
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and logistics in light of overall project
purposes.’’ 33 CFR 335.7.
The possibility that EPA and USACE
might disagree whether or not an
alternative is ‘‘practicable’’ is rooted, in
part, in the fact that the two agencies
have different regulatory definitions of
the term ‘‘practicable.’’ That difference
has existed since at least 1988, when the
USACE’s current regulatory definition
was promulgated. At the same time,
although the two definitions are
different, they are similar and have
important commonalities. Under both
definitions, a practicable alternative
must be available taking cost and other
factors into consideration. As a result,
EPA expects that it would be an unusual
case in which the two definitions would
lead to different conclusions about an
alternative’s practicability. Indeed, EPA
is unaware of any project in New
England that has been stopped due to
the difference in definitions.
In any event, EPA’s definition of
‘‘practicable’’ and its application do not
directly affect the USACE’s definition of
the Federal Standard. If EPA determines
that an alternative is ‘‘practicable,’’ then
non-federal sponsors will need to be
found to pay for the incremental cost
above what the USACE can legally
participate in. One of the important
roles of the Steering Committee and LIS
RDT described earlier, is the
identification and piloting of beneficial
use alternatives, identifying possible
resources, and eliminating regulatory
barriers. EPA expects that the Steering
Committee and LIS RDT will, generally
and on a project specific basis, facilitate
the process of matching projects,
beneficial use alternatives, and the
resources necessary to implement them,
thus mitigating the risk that a project
cannot proceed.
EPA’s definition of ‘‘practicable’’
requires that the alternative be
‘‘available at reasonable incremental
cost.’’ Said differently, by definition, a
‘‘practicable alternative’’ will not
impose unreasonable incremental cost.
This would apply as well to the
consideration of multiple potential
management alternatives for dredged
material from a single project, a scenario
that the USACE in concerned might add
significant costs. Again, incremental
costs could not be unreasonable without
also rendering the alternative
impracticable. As noted in the preamble
to the Proposed Rule, the language
retained from the 2005 Rule does not
attempt to specify in advance how the
‘‘reasonable incremental cost’’ standard
will be applied in any particular case.
The regulation contemplates a balancing
test and EPA believes that the
determination is best made on a case-by-
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case basis. The language of the 2005
Rule also does not attempt to specify
who will need to pay for any reasonable
incremental costs. Rather, the share of
such costs (if any) to be borne by private
parties, state government, local
government, or the federal government
also will need to be worked out in
response to actual situations.
EPA cannot eliminate in advance the
possibility that no entity will have the
means to pay the non-federal share of an
alternative EPA has determined is
practicable, whether in Long Island
Sound or anywhere else in the country.
However, in Long Island Sound, with
the states and federal agencies working
in partnership to implement beneficial
use alternatives, EPA believes that the
likelihood of a project not going forward
because of a lack of funding for the
reasonable incremental cost of a
practicable alternative has been made as
remote as possible.
Comment #9. Many commenters
noted that dredging is necessary to
ensure recreational and commercial
access to Long Island Sound. Marinas,
boatyards, and boat clubs are the main
access for the public to get out onto the
Sound and they need to dredge
periodically to maintain sufficient depth
for safe navigation. Dredging is
necessary to ensure the existence of
commercial and recreational industries
that generate billions of dollars and
support thousands of jobs around the
Sound. An important element of state
coastal zone management programs—to
retain, promote, and enhance access to
waterways—will be harmed if the
public and marine industry cannot
access the Sound.
Response #9. EPA agrees that
dredging to provide for safe navigation
to and from Long Island Sound is a
necessary activity and acknowledges
that the marine trade industry is an
important contributor to the economy of
both states in the Long Island Sound
region. The policy goals of the Coastal
Zone Management Act are to ‘‘preserve,
protect, develop, and where possible, to
restore or enhance, the resources of the
Nation’s coastal zone.’’ This includes
achieving wise use of the land and
water resources of the coastal zone,
giving full consideration to ecological,
cultural, historic, and esthetic values as
well as the needs for compatible
economic development. EPA agrees that
providing public access to the coasts for
recreation purposes is an important goal
of coastal zone management programs.
EPA notes that the protection of natural
resources, including wetlands,
floodplains, estuaries, beaches, dunes,
barrier islands, coral reefs, and fish and
wildlife and their habitat, within the
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coastal zone is also an important goal.
EPA, USACE, NOAA, and the state
coastal zone management programs seek
to harmonize these goals.
Comment #10. Numerous commenters
believe there needs to be an open-water
placement option for dredged material.
They express concern that without an
open-water option, dredging will
become prohibitively expensive.
Response #10. EPA agrees that there
is a need for open-water disposal sites
in Central and Western Long Island
Sound as was demonstrated when EPA
designated the sites in 2005 and has
been reaffirmed by the DMMP. EPA is
retaining these sites as open-water
placement options for the long term.
However, the Final Rule also reaffirms
that the overarching goal is to reduce or
eliminate wherever practicable the
open-water disposal of dredged
material. The amendments make clear
that unsuitable material shall not be
disposed of at the sites, that sandy
material should be used beneficially in
almost all cases, and that alternatives to
open-water placement of silty material
should be thoroughly considered, and
used whenever practicable, before openwater placement is allowed.
Comment #11. Commenters had
mixed views concerning the Long Island
Sound DMMP. Some feel the DMMP
provides useful information on what
should be done with dredged material
and how these projects should be
managed. Others feel the DMMP is
insufficient and will perpetuate the
status quo and EPA cannot rely solely
on the DMMP in amending the rule.
Rather they assert that EPA must amend
the rule to establish additional
procedures and standards that will
result in clear, staged reductions in
open-water disposal of dredged material
over time.
Response #11. EPA believes the
DMMP provides very useful information
for managing toward the goal of
reducing or eliminating the open-water
disposal of dredged materials in the
Sound. The DMMP provides
recommended standards and procedures
as well as identifying potential
alternatives to open water disposal for
each of the 52 federal navigation
projects in Long Island Sound. The
Final Rule builds on the procedures
recommended in the DMMP and
provides a strong management
framework for achieving the goal of
reducing or eliminating open-water
disposal with the addition of the
Steering Committee and its
responsibilities, as described in
Response #2.
Comment #12. Some commenters
believe disposal of any dredged material
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in the Sound should not be allowed to
continue. They believe open water
disposal does not make environmental
sense, will have a negative impact on
the ecosystem of Long Island Sound,
and that toxic or contaminated sediment
should not be dumped in the Sound.
Response #12. As noted above, EPA
thinks, many commenters acknowledge,
and the DMMP helps to document, that
dredging is and will continue to be
needed to allow for safe navigation in
the harbors, marinas and channels of
Long Island Sound. This is important
for public safety, marine commerce and
recreation, and national security. In
order to handle this dredged material,
EPA believes it is neither possible nor
practical to simply end open water
disposal at this time. The goal set in
2005 and retained in the Final Rule is
to reduce or eliminate open-water
disposal. The Final Rule establishes
standards and procedures toward that
end.
EPA strongly disagrees with the
suggestion that toxic sediments might be
disposed of at the sites. EPA’s MPRSA
regulations require rigorous physical,
chemical, and biological testing and
analysis of sediments is conducted prior
to issuance of any permit to place
material at the sites. See 40 CFR part
227. As the Proposed and Final Rule
make clear, sediments that do not pass
these tests are considered ‘‘unsuitable’’
and shall not be disposed of at the sites.
The USACE’s Disposal Area
Monitoring System (DAMOS) has
gathered information on dredged
material placement sites in the Sound
since the late 1970s. The program has
generated over 200 detailed reports
addressing questions and concerns
related to placement of dredged material
in the Sound. Sequential surveys of
biological conditions at sites following
the placement of dredged material
consistently show a rapid recovery of
the benthic community to that of the
surrounding habitat outside the disposal
sites and within the sites. The USACE
and EPA monitor benthic health and
recovery and the results support the
conclusion that there is no evidence of
long-term effects on the marine
environment.
With the nearly 40-year record of
surveys, there have been multiple
opportunities to evaluate the effects of
large storms (both hurricanes and
nor’easters) on the dredged material
mounds on the seafloor. These
investigations have demonstrated longterm stability of the mounds even at the
most exposed sites.
Comment #13. Other commenters
believe dredged material can be placed
in open-water sites without significant
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harm and that the Proposed Rule
provides adequate safeguards for openwater placement. They note that
permitting for dredging and relocation
of dredged material is rigorous,
thorough, and costly, with multiple
agency reviews. They point to years of
studies and documentation
demonstrating the lack of harm and
stability of the dredged materials placed
at these sites. They believe scientific
evidence does not support the claim
that toxic material is dumped into the
Sound. They also note that without
dredging, the sediments remain in the
relative shallows of the bays and
harbors, where more fish live and where
more people swim, fish, and enjoy the
water. Storms in the relative shallows of
the bays and harbors create more
siltation, turbidity, and disturbance than
dredging.
Response #13. EPA agrees that the
permitting process for dredging projects
is rigorous and thorough and involves
coordination with multiple agencies. As
discussed in Response #12, EPA agrees
that there is a substantial body of
scientific evidence that indicates that
suitable dredged material can be
disposed of at the sites with minimal
harm to the marine environment. To the
extent the commenters are addressing
possible concerns about exposure to
materials that might be dredged in the
future, it is possible that they are
dispersed across a greater surface area
and at depths more readily resuspended by the natural forces of
winds, waves, and tides compared to
the more compact placement at the
CLDS and WLDS at depths much less
influenced by winds and waves.
Comment #14. Some commenters said
that EPA’s analysis should consider the
nitrogen loading associated with openwater disposal and reconcile it with
EPA’s nitrogen strategy for Long Island
Sound.
Response #14. As discussed in the
DMMP, the annual placement of
dredged material at the open-water sites
is estimated to add less than one-tenth
of one percent of the overall annual
nitrogen loading to Long Island Sound.
The dredging process scrapes a
relatively thin layer of surficial
sediment from a wide area, and aquatic
placement consolidates that volume of
sediment into a much smaller footprint.
Hence, much of the nitrogen that was
available for potential future release
from surficial sediment (due to
biological reworking or physical
disturbance in the shallower
environment) is sequestered out of
contact with the water column in
deposits that have been shown to be
stable features on the seafloor.
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Comment #15. Some commenters
believe dredged material should be used
beneficially. Others note that moving
away from open-water disposal is
feasible in the long run, but the costs
associated with these alternatives are far
greater than funding available today.
Response #15. EPA agrees that
suitable dredged material should be
used beneficially whenever and
wherever practicable. The standards and
procedures contained in the Final Rule
and the menu of alternatives contained
in the DMMP provide the structure and
means to follow a path that should
result in reducing open-water disposal
while increasing beneficial use of
dredged materials. EPA and the USACE
believe that sandy materials can be
beneficially used in many cases
currently and with even greater
frequency in the future. The next
challenge is to find economic and
beneficial environmental uses for
suitable silty material. As coastal
resiliency becomes an increasingly
important priority, EPA is hopeful and
expects that opportunities for beneficial
uses of silty material will emerge and
expand.
Comment #16. The USACE noted that
the Proposed Rule maintains the current
language of 40 CFR 228.15(b)(4)(vi)
which provides, ‘‘All references to
‘permittees’ shall be deemed to include
the U.S. Army Corps of Engineers
(USACE) when it is authorizing its own
dredged material disposal from a
USACE dredging project.’’ The USACE
explains that it does not permit its own
projects and is therefore not a permittee.
USACE requested the language be
stricken.
Response #16. As noted by USACE,
the language in question was included
in the restrictions in the 2005 Rule. The
intention of the 2005 Rule was to apply
the restrictions to all persons who may
seek to dispose of dredged material at
the sites under MPRSA. As discussed in
the preamble to the 2005 Rule, the
restrictions were intended to apply both
to all MPRSA permittees (i.e., private
parties and governmental agencies other
than the USACE), and to the USACE
itself which disposes of dredged
material pursuant to the
‘‘authorizations’’ that it grants to itself
rather than permits. See 70 FR 32511
(June 3, 2005). See also 33 U.S.C.
1413(e); 40 CFR 220.2(h); 33 CFR
336.1(a). The USACE was ‘‘deemed’’ to
be a permittee in the 2005 Rule only to
make it clear that it was subject to the
site Restrictions where the term
‘‘permittee’’ was used, but not to mean
that the Corps was actually a permittee.
Thus, the USACE was not considered to
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44225
be a permittee but would be treated like
one in this context.
EPA understands the USACE’s
comment as objecting to being
considered a ‘‘permittee,’’ rather than an
indication that the USACE is not subject
to the restrictions. Since the other
proposed revisions to the 2005 Rule
eliminated the use of the word
‘‘permittee,’’ there is no longer a need to
specifically qualify what ‘‘permittee’’
refers to. Consistent with the USACE’s
comment and EPA’s intention that the
restrictions apply to all persons who
may dispose of dredged material at the
sites, but not that the USACE would be
an actual permittee, EPA has revised the
sentence in question in 40 CFR
228.15(b)(4)(vi) to read (in pertinent
part): ‘‘The restrictions apply to the U.S.
Army Corps of Engineers (USACE)
when it is authorizing its own dredged
material disposal from a USACE
dredging project . . . .’’
Comment #17. The U.S. Department
of the Interior’s Bureau of Indian Affairs
(BIA) requested that EPA consult with
the Shinnecock Indian Nation
concerning the amendments to the 2005
Rule.
Response #17. EPA coordinated with
Tribal nations in Connecticut, Rhode
Island, and New York, including the
Shinnecock Indian Nation, throughout
the site designation process. None of the
tribes that were contacted expressed
interest in EPA consulting with them.
Upon receipt of the letter from BIA, EPA
contacted the Shinnecock Indian Nation
to gauge its interest in participating in
the formal consultation process, but the
tribe did not express an interest in
participating. EPA will continue to
coordinate with the Shinnecock Indian
Nation, as appropriate, in the future.
Comment #18. One commenter
asserted that the eastern boundary of
Long Island Sound should run from
Little Gull Island, through Bartlett’s Reef
to the Connecticut mainland. They
assert that Block Island Sound,
Gardiners Bay, the Race, Fishers Island
Sound and the New London Disposal
Site are not part of Long Island Sound.
Response #18. In 2009, after due
consideration of the issue, EPA advised
the USACE that the boundary suggested
by the commenter should not be used as
the eastern boundary of the Sound
under MPRSA Section 106(f). EPA’s
analysis concluded that the boundary,
instead, runs northeasterly from Orient
Point, through Plum Island, Great Gull
and Little Gull Islands, Fishers Island,
and Napatree Point, RI, which is
sometimes referred to as the ‘‘Old Base
Line.’’ This boundary has been used
consistently by EPA and USACE in all
discussions and documents concerning
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dredged material disposal sites in Long
Island Sound.
Comment #19: One commenter
claimed that EPA has incorrectly
concluded that the proposed action will
not have a significant economic impact
on a substantial number of small entities
under the Regulatory Flexibility Act.
Response #19: EPA disagrees with the
commenter regarding the conclusion
that the proposed action will not have
a significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act. As
EPA noted in the Proposed Rule, the
restrictions apply only to projects
subject to MPRSA (i.e., all federal
projects and non-federal projects greater
than 25,000 cubic yards). Small entities
are most likely to be involved with
projects below the 25,000 cubic yard
threshold. Therefore, they are not
subject to these restrictions and are
subject to Clean Water Act requirements
instead. If anything, EPA’s action to
amend the regulations and maintain the
CLDS and WLDS designations will
assist small entities by maintaining the
CLDS and WLDS as clear options for
open-water disposal of dredged
material, when appropriate.
III. Changes From the Proposed Rule
The Final Rule incorporates the
standards and procedures contained in
the Proposed Rule and, pursuant to the
comments discussed above, revises
them as follows.
A sentence, restating the common
goal to reduce or eliminate open water
disposal of dredged material in Long
Island Sound, has been added to the
introductory paragraph (b)(4)(vi) in the
Final Rule. Another sentence in the
same paragraph has been revised to
clarify that although the USACE is not
a permittee, the restrictions also apply
to the USACE when it is authorizing its
own dredged material disposal from a
USACE dredging project.
The Final Rule establishes a Long
Island Sound Dredging Steering
Committee consisting of high level
representatives from the states, EPA, the
USACE, and, as appropriate, other
federal and state agencies. The Steering
Committee will provide policy-level
direction to the LIS RDT and facilitate
high-level collaboration among the
agencies critical to accelerating the
development and use of alternatives to
open-water disposal of dredged
material. The charge to the Steering
Committee includes: developing a
baseline for the volume and percentage
of dredged material being placed in
open water and the amount and
percentage being beneficially used;
establishing a reasonable and
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practicable series of stepped objectives
(with timeframes) for reducing the
amount of open water placement and
increasing the amount of beneficially
used material, while also recognizing
that there will be fluctuations in annual
volumes of dredged material generated
due to the very nature of the dredging
program; and developing accurate
methods for tracking reductions with
due consideration for annual
fluctuations. The Final Rule specifies
that the stepped objectives should
incorporate an adaptive management
approach toward continuous
improvement. When tracking progress,
the Steering Committee will recognize
that exceptional circumstances may
result in delays meeting an objective.
Exceptional circumstances should be
infrequent, irregular, and unpredictable.
In carrying out its tasks, the Steering
Committee shall guide and utilize the
LIS RDT, as appropriate.
Participation of Connecticut, New
York, and Rhode Island on the Steering
Committee and LIS RDT is voluntary; it
is not legally mandated by the new
regulations. That said, EPA expects, as
discussed earlier, that Connecticut and
New York (and possibly Rhode Island)
will participate and that each of the
member agencies will commit the
necessary resources to support the work
of the Steering Committee and the LIS
RDT, including collecting the data
necessary to support the establishment
of the baseline and tracking and
reporting the future disposition of
dredged materials. EPA expects the
Steering Committee, with the support of
the LIS RDT, to guide a concerted effort
to spur greater use of beneficial use
alternatives, including piloting
alternatives, identifying possible
resources, and eliminating regulatory
barriers. The Final Rule contains
provisions establishing the Steering
Committee and setting out the
responsibilities described above.
[(b)(4)(vi)(E)]
The Final Rule clarifies certain of the
roles and responsibilities of the LIS
RDT. Again, participation by the states
on the LIS RDT is voluntary, but EPA
expects the states to participate and to
provide the resources necessary for
meaningful participation. The Final
Rule establishes the relationship
between the Steering Committee, which
provides policy-level direction for the
LIS RDT, and the LIS RDT, which has
the responsibility for execution. It more
explicitly calls for project proponents to
consult with the LIS RDT at the earliest
possible stage to expand consideration
of beneficial use alternatives. The Final
Rule sets a clear expectation that the LIS
RDT will report to USACE on its review
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of final projects within 30 days of
receipt of project information. It also
provides additional detail on the
organization and procedures for the LIS
RDT. EPA views the charter under
which the LIS RDT has operated during
the development of the DMMP as a
useful starting point for a new charter
that encompasses the revised roles,
responsibilities and makeup of the LIS
RDT. The current LIS RDT charter
should serve as the interim guide for the
LIS RDT’s process until a new charter is
developed. [(b)(4)(vi)(F)]
Lastly, the Final Rule provides the
potential for reconsidering the rule,
upon petition, if in ten years the amount
of dredged material disposed of at the
sites has not been maintained or
reduced. [(b)(4)(vi)(H)]
IV. Compliance With Statutory and
Regulatory Requirements
The preamble to the 2005 Rule
described how the dredged material
disposal site designation process that
culminated in the designation of the
CLDS and WLDS was consistent with
the requirements of the MPRSA, the
CWA, the National Environmental
Policy Act (NEPA), the Coastal Zone
Management Act (CZMA), the
Endangered Species Act (ESA), and the
Magnuson-Stevens Fishery
Conservation and Management Act
(MSFCMA). See 70 FR 32502–32508
(June 3, 2005). While the CWA does not
apply specifically to an EPA designation
of a long-term dredged material disposal
site under the MPRSA, future federal
and non-federal projects involving
dredged material disposal in Long
Island Sound will require both a section
404 permit as well as a State Water
Quality Certification pursuant to section
401 of the CWA.
In the preamble to the Proposed Rule,
EPA determined that the proposed
amendments to the 2005 Rule, and the
process by which they were developed,
also are consistent with the laws noted
above. 81 FR 7060–7061. One of the
important factors in this determination
was that the amended Rule would
provide the same or greater protection of
water quality and the marine
environment as the 2005 Rule. 81 FR
7060. EPA’s conclusions regarding
compliance with those laws has not
changed following consideration of
public comments.
As the preamble to the Proposed Rule
explained, the proposed amendments to
the 2005 Rule do not make decisions
about the suitability of any particular
dredged material for open-water
disposal or about any other type of
management of the material. Such
decisions will be made for specific
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dredging projects on the basis of projectspecific permitting evaluations. The
amendments to the regulations, instead,
provide specific standards and
procedures designed to further the goal
of reducing or eliminating open-water
disposal of dredged material at the
CLDS and WLDS. These amendments
are consistent with provisions of the
2005 Rule that called for possible
revisions to the Rule based on the
standards and procedures recommended
in the Long Island Sound Dredged
Material Management Plan (DMMP).
The preamble to the Proposed Rule also
provided additional statute-specific
discussion. 81 FR 7060–7061.
At the time of the Proposed Rule,
consultation and coordination with state
and federal agencies regarding the
CZMA, ESA, MSFCMA, respectively,
were underway. Those consultations
have been completed, as discussed
below.
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1. Marine Protection, Research, and
Sanctuaries Act (MPRSA)
In the preamble to the 2005 Rule, EPA
explained in detail how its designation
of the CLDS and WLDS complied with
the MPRSA. 70 FR 32502–32508. In the
preamble for the Proposed Rule, EPA
explained how the proposed
amendments to the 2005 Rule also
complied with the MPRSA. As part of
such compliance, EPA has finalized
updates to the Site Management and
Monitoring Plan (SMMP) for both the
CLDS and the WLDS.
2. Coastal Zone Management Act
(CZMA)
Under the CZMA, EPA, like any other
federal agency, is required to provide
relevant states with a determination that
any activity it proposes that could affect
the uses or natural resources of a state’s
coastal zone is consistent to the
maximum extent practicable with the
enforceable policies of the state’s coastal
zone management program. EPA
determined that the amendments to the
2005 Rule are consistent with the
enforceable policies of the coastal zone
management programs of both
Connecticut and New York and
provided each state with a written
determination to that effect. EPA
consulted with each state’s coastal zone
management program prior to this final
rulemaking. In a letter dated April 8,
2016, the Connecticut Department of
Energy and Environmental Protection
concurred with EPA’s determination
with regard to Connecticut’s coastal
zone management program. The New
York State Department of State (NY
DOS) provided its concurrence on April
25, 2016. NY DOS’s concurrence was
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conditioned on the Final Rule including
provisions that address NY DOS’s
comments on the Proposed Rule. EPA
believes the changes to the Proposed
Rule described above are consistent
with NY DOS’s condition(s) and, thus,
considers NY DOS to have concurred
with the Final Rule.1
3. Endangered Species Act
Since the 2005 Rule, NOAA’s
National Marine Fisheries Service
(NMFS) and the U.S. Fish and Wildlife
Service listed the Atlantic sturgeon as
an endangered species under the ESA.
Parts of Long Island Sound are among
the distinct population segments listed
as endangered by NMFS in 2012. EPA’s
analysis considered the Atlantic
sturgeon as well as sea turtles and listed
marine mammals. Consistent with the
ESA, EPA consulted with NMFS and
USFWS on this rulemaking action and
the updating of the SMMPs for the two
disposal sites. NMFS has concurred
with EPA’s determination that any
adverse effects on listed species from
this action would be insignificant or
discountable, and that this action is not
likely to adversely affect any listed
species or critical habitat of such
species under NMFS jurisdiction. EPA
sent a ‘‘no effects’’ determination for
species under USFWS jurisdiction to
the USFWS and did not receive any
response, so EPA assumed concurrence.
No additional consultation or
coordination is required.
4. Magnuson-Stevens Fishery
Conservation and Management Act
(MSFCMA)
EPA coordinated with NMFS on this
rulemaking action and the updating of
SMMPs for the two disposal sites,
consistent with the Essential Fish
Habitat provisions of the MSFCMA.
NMFS has concurred with our
determination that it is unlikely that
this action will result in adverse effects
to any essential fish habitat. Therefore,
no additional coordination is required.
1 NY DOS’s conditional concurrence stated its
conclusion that EPA’s rule would not comply with
the enforceable provisions of New York’s coastal
zone management program unless EPA adopted
provisions consistent with the conditions proposed
by NY DOS. While EPA has, indeed, adopted such
provisions that assure NY DOS’s concurrence, EPA
does not agree with NY DOS’s assessment of
proposed regulatory amendments. EPA, instead,
determined that the terms of its Proposed and Final
Rules fully comply or, in the alternative, comply to
the maximum extent practicable with the
enforceable provisions of New York’s coastal zone
management program. EPA’s assessment is
documented in the record, including, but not
limited to, its CZMA consistency determination.
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V. Final Action
EPA is publishing this Final Rule to
amend the restrictions on the use of the
CLDS and WLDS. This action is
consistent with, and retains a number
of, the restrictions contained in the
original designation of these sites in
2005. Certain of those restrictions
required completion of a DMMP that
would identify procedures and
standards for reducing or eliminating
the disposal of dredged material in Long
Island Sound. Since the DMMP has
been completed EPA’s Final Rule
removes the restrictions related to its
development. The 2005 restrictions
further require EPA, within 120 days of
completion of the DMMP, to issue final
amendments to the restrictions to
incorporate procedures and standards
consistent with those recommended in
the DMMP for reducing or eliminating
the disposal of dredged material in Long
Island Sound. While the Final Rule was
not issued within 120 days of
completion of the DMMP (which would
have been May 10), and use of the CLDS
and WLDS was temporarily suspended,
issuance of today’s Final Rule satisfies
that requirement such that the
suspension of the sites has been lifted
and they are now available for use. See
40 CFR 228.15(b)(4)(vi)(C) (footnote 1)
and (G).
The Final Rule incorporates the
standards and procedures recommended
in the DMMP and augments them by
establishing a Steering Committee to
provide policy guidance and direction
to the LIS RDT and to: Develop a
baseline for the volume and percentage
of dredged material being placed in
open water and the amount and
percentage being beneficially used;
establish a reasonable and practicable
series of stepped objectives (with
timeframes) for reducing the amount of
open water placement and increasing
the amount of beneficially used
material, while also recognizing that
there will be fluctuations in annual
volumes of dredged material generated
due to the very nature of the dredging
program; and develop accurate methods
for tracking reductions with due
consideration for annual fluctuations.
The stepped objectives will incorporate
an adaptive management approach
toward continuous improvement. The
Rule provides that when tracking
progress, the Steering Committee will
recognize that exceptional
circumstances may result in delays
meeting an objective. Exceptional
circumstances should be infrequent,
irregular, and unpredictable. The Final
Rule also provides that in carrying out
its tasks, the Steering Committee shall
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guide and utilize the LIS RDT, as
appropriate.
The Final Rule also expressly allows
any person to submit a petition seeking
changes to the rule if, in ten years, the
amount of dredged material disposed of
at the sites has not been maintained or
reduced.
VI. Statutory and Executive Order
Reviews
1. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action, as defined in the
Executive Order, and was therefore not
submitted to the Office of Management
and Budget (OMB) for review.
2. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
PRA because it would not require
persons to obtain, maintain, retain,
report or publicly disclose information
to or for a federal agency.
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3. Regulatory Flexibility Act (RFA)
This action will not have a significant
economic impact on a substantial
number of small entities under the
Regulatory Flexibility Act (RFA). The
amended restrictions in this rule are
only relevant for dredged material
disposal projects subject to the MPRSA.
Non-federal projects involving 25,000
cubic yards or less of material are not
subject to the MPRSA and, instead, are
regulated under CWA section 404. This
action will, therefore, have no effect on
such projects. ‘‘Small entities’’ under
the RFA are most likely to be involved
with smaller projects not covered by the
MPRSA. Therefore, EPA does not
believe a substantial number of small
entities will be affected by today’s rule.
Furthermore, the amendments to the
restrictions also will not have
significant economic impacts on a
substantial number of small entities
because they primarily will create
requirements to be followed by
regulatory agencies rather than small
entities, and will create requirements
(i.e., the standards and procedures)
intended to help ensure satisfaction of
the existing regulatory requirement that
practicable alternatives to the ocean
dumping of dredged material be utilized
(see 40 CFR 227.16).
4. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
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governments. The action imposes no
enforceable duty on any state, local or
tribal governments or the private sector.
5. Executive Order 13132: Federalism
This action does not have federalism
implications within the meaning of the
Executive Order. It will not have
substantial direct effects on the states,
on the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
6. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175 because the restrictions
will not have substantial direct effects
on Indian tribes, on the relationship
between the federal government and
Indian Tribes, or the distribution of
power and responsibilities between the
federal government and Indian Tribes.
EPA consulted with the affected Indian
tribes in making this determination.
7. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This action is not subject to Executive
Order 13045 because it is not
economically significant as defined in
Executive Order 12866, and because
EPA does not believe the environmental
health or safety risks addressed by this
action present a disproportionate risk to
children.
8. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
9. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards.
10. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
EPA believes the human health or
environmental risk addressed by this
action will not have a
disproportionately high and adverse
human health or environmental effects
on minority, low-income or indigenous
populations.
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11. Executive Order 13158: Marine
Protected Areas
Executive Order 13158 (65 FR 34909,
May 31, 2000) requires EPA to
‘‘expeditiously propose new sciencebased regulations, as necessary, to
ensure appropriate levels of protection
for the marine environment.’’ EPA may
take action to enhance or expand
protection of existing marine protected
areas and to establish or recommend, as
appropriate, new marine protected
areas. The purpose of the Executive
Order is to protect the significant
natural and cultural resources within
the marine environment, which means,
’’those areas of coastal and ocean
waters, the Great Lakes and their
connecting waters, and submerged lands
thereunder, over which the United
States exercises jurisdiction, consistent
with international law.’’
EPA expects that this rule will afford
additional protection to the waters of
Long Island Sound and organisms that
inhabit them. Building on the existing
protections of the MPRSA, the ocean
dumping regulations, the 2005 Rule, the
CWA, and other relevant statutes and
regulations, the final regulatory
amendments are designed to promote
and support reductions in open-water
disposal of dredged material in Long
Island Sound.
12. Executive Order 13547: Stewardship
of the Ocean, Our Coasts, and the Great
Lakes
Section 6(a)(i) of Executive Order
13547, (75 FR 43023, July 19, 2010)
requires, among other things, that EPA
and certain other agencies ‘‘. . . to the
fullest extent consistent with applicable
law . . . take such action as necessary
to implement the policy set forth in
section 2 of this order and the
stewardship principles and national
priority objectives as set forth in the
Final Recommendations and subsequent
guidance from the Council.’’ The
policies in section 2 of Executive Order
13547 include, among other things, the
following: ‘‘. . . it is the policy of the
United States to: (i) protect, maintain,
and restore the health and biological
diversity of ocean, coastal, and Great
Lakes ecosystems and resources; (ii)
improve the resiliency of ocean, coastal,
and Great Lakes ecosystems,
communities, and economies. . . .’’ As
with Executive Order 13158 (Marine
Protected Areas), the overall purpose of
the Executive Order is to promote
protection of ocean and coastal
environmental resources.
EPA expects that this Final Rule will
afford additional protection to the
waters of Long Island Sound and
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organisms that inhabit them. Building
on the existing protections of the
MPRSA, the ocean dumping regulations,
the 2005 Rule, the CWA and other
relevant statutes and regulations, the
regulatory amendments are designed to
promote the reduction or elimination of
open-water disposal of dredged material
in Long Island Sound.
13. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A ‘‘major rule’’
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a major rule as
defined by 5 U.S.C. 804(2). This rule
will be effective August 8, 2016.
List of Subjects in 40 CFR Part 228
Environmental protection, Water
pollution control.
Dated: June 24, 2016.
H. Curtis Spalding,
Regional Administrator, EPA Region 1-New
England.
For the reasons stated in the
preamble, title 40, Chapter I, of the Code
of Federal Regulations is amended as set
forth below.
PART 228—CRITERIA FOR THE
MANAGEMENT OF DISPOSAL SITES
FOR OCEAN DUMPING
1. The authority citation for part 228
continues to read as follows:
■
Authority: 33 U.S.C. 1412 and 1418.
2. Section 228.15 is amended by:
a. Revising paragraphs (b)(4)
introductory text and (b)(4)(i) and (v)
and (b)(4)(vi) introductory text;
■ b. Removing paragraphs (b)(4)(vi)(C)
through (F);
■ c. Adding new paragraphs (b)(4)(vi)(D)
through (F);
■ d. Revising paragraph (b)(4)(vi)(G);
■ e. Removing paragraph (b)(4)(vi)(H);
■ f. Redesignating paragraph (b)(4)(vi)(I)
as (b)(4)(vi)(C) and revising it;
■ g. Redesignating paragraph (b)(4)(vi)(J)
through (L) as (b)(4)(vi)(H) through (J),
respectively;
■ h. Removing paragraph (b)(4)(vi)(M);
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■
■
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i. Redesignating paragraph
(b)(4)(vi)(N) as (b)(4)(vi)(K); and
■ j. Revising paragraphs (b)(5)
introductory text and (b)(5)(v).
The revisions and additions read as
follows:
■
§ 228.15 Dumping sites designated on a
final basis.
*
*
*
*
*
(b) * * *
(4) Central Long Island Sound
Dredged Material Disposal Site (CLDS).
(i) Location: Corner Coordinates (NAD
1983) 41°9.5′ N., 72°54.4′ W.; 41°9.5′ N.,
72°51.5′ W.; 41°08.4′ N., 72°54.4′ W.;
41°08.4′ N., 72°51.5′ W.
*
*
*
*
*
(v) Period of use: Continuing use.
(vi) Restrictions: The designation in
this paragraph (b)(4) sets forth
conditions for the use of Central Long
Island Sound and Western Long Island
Sound Dredged Material Disposal Sites
(CLDS and WLDS, respectively). These
conditions apply to all disposal subject
to the MPRSA, namely, non-federal
projects greater than 25,000 cubic yards
and all federal projects. With regard to
federal projects, the restrictions apply to
the U.S. Army Corps of Engineers
(USACE) when it is authorizing its own
dredged material disposal from a
USACE dredging project, as well as to
federal dredged material disposal
projects that require authorization from
a permit issued by the USACE. The goal
of these conditions is to reduce or
eliminate open-water disposal of
dredged material in Long Island Sound.
The conditions for this designation are
as follows:
*
*
*
*
*
(C) Disposal of dredged material at the
designated sites pursuant to the
designation in this paragraph (b)(4) shall
be allowed if, after full consideration of
recommendations provided by the Long
Island Sound Regional Dredging Team
(LIS RDT) if the members of the LIS
RDT reach consensus, or provided by
the LIS RDT’s member agencies if no
consensus is achieved, the USACE finds
(and EPA does not object to such
finding), based on a fully documented
analysis, that for a given dredging
project:
(1) There are no practicable
alternatives (as defined in 40 CFR
227.16(b)) to open-water disposal in
Long Island Sound. Any available
practicable alternative to open-water
disposal will be fully utilized for the
maximum volume of dredged material
practicable;
(2) Determinations relating to
paragraph (b)(4)(vi)(C)(1) of this section
will recognize that, consistent with 40
CFR 227.16(b), a practicable alternative
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44229
to open-water disposal may add
reasonable incremental costs. Disposal
of dredged material at the designated
sites pursuant to this paragraph (b)(4)
shall not be allowed to the extent that
a practicable alternative is available.
(3) The following standards for
different dredged material types have
been appropriately considered:
(i) Unsuitable material. Disposal shall
be limited to dredged sediments that
comply with the Ocean Dumping
Regulations.
(ii) Suitable sandy material. Suitable
coarse-grained material, which generally
may include up to 20 percent fines
when used for direct beach placement,
or up to 40 percent fines when used for
nearshore bar/berm nourishment,
should be used for beach or nearshore
bar/berm nourishment or other
beneficial use whenever practicable. If
no other alternative is determined to be
practicable, suitable course-grained
material may be placed at the
designated sites.
(iii) Suitable fine-grained material.
This material has typically greater than
20 to 40 percent fine content and,
therefore, is not typically considered
appropriate for beach or nearshore
placement, but has been determined to
be suitable for open-water placement by
testing and analysis. Materials dredged
from upper river channels in the
Connecticut, Housatonic and Thames
Rivers should, whenever possible, be
disposed of at existing Confined Open
Water sites, on-shore, or through inriver placement. Other beneficial uses
such as marsh creation, should be
examined and used whenever
practicable. If no other alternative is
determined to be practicable, suitable
fine-grained material may be placed at
the designated sites.
(D) Source reduction. Efforts to
control sediment entering waterways
can reduce the need for maintenance
dredging of harbor features and facilities
by reducing shoaling rates. Federal,
state and local agencies tasked with
regulating discharges into the watershed
should continue to exercise their
authorities under various statues and
regulations in a continuing effort to
reduce the flow of sediments into state
waterways and harbors.
(E) There is established a Long Island
Sound Dredging Steering Committee
(Steering Committee), consisting of
high-level representatives from the
states of Connecticut and New York,
EPA, USACE, and, as appropriate, other
federal and state agencies. The Steering
Committee will provide policy-level
direction to the Long Island Sound
Regional Dredging Team (LIS RDT) and
facilitate high-level collaboration among
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the agencies critical to promoting the
development and use of beneficial
alternatives for dredged material. State
participation on the LIS RDT and
Steering Committee is voluntary. The
Steering Committee is charged with:
Establishing a baseline for the volume
and percentage of dredged material
being beneficially used and placed at
the open-water sites; establishing a
reasonable and practicable series of
stepped objectives, including
timeframes, to increase the percentage
of beneficially used material while
reducing the percentage and amount
being disposed in open water, and while
recognizing that the amounts of dredged
material generated by the dredging
program will naturally fluctuate from
year to year; and developing accurate
methods to track the placement of
dredged material, with due
consideration for annual fluctuations.
The stepped objectives should
incorporate an adaptive management
approach while aiming for continuous
improvement. When tracking progress
the Steering Committee should
recognize that exceptional
circumstances may result in delays in
meeting an objective. Exceptional
circumstances should be infrequent,
irregular, and unpredictable. It is
expected that each of the member
agencies will commit the necessary
resources to support the LIS RDT and
Steering Committee’s work, including
the collection of data necessary to
support establishing the baseline and
tracking and reporting on the future
disposition of dredged material. The
Steering Committee may utilize the LIS
RDT, as appropriate, to carry out the
tasks assigned to it. The Steering
Committee, with the support of the LIS
RDT, will guide a concerted effort to
encourage greater use of beneficial use
alternatives, including piloting
alternatives, identifying possible
resources, and eliminating regulatory
barriers, as appropriate.
(F) The goal of the Long Island Sound
Regional Dredging Team (LIS RDT),
working in cooperation with, and
support of, the Steering Committee, is to
reduce or eliminate wherever
practicable the open-water disposal of
dredged material. The LIS RDT’s
purpose, geographic scope,
membership, organization, and
procedures are provided as follows:
(1) Purpose. The LIS RDT will:
(i) Review dredging projects and make
recommendations as described in
paragraph (vi)(C) above. The LIS RDT
will report to the USACE on its review
of dredging projects within 30 days of
receipt of project information. Project
proponents should consult with the LIS
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RDT early in the development of those
projects to ensure that alternatives to
open-water placement are fully
considered.
(ii) Assist the Steering Committee in:
Establishing a baseline for the volume
and percentage of dredged material
being beneficially used and placed at
the open water sites; establishing a
reasonable and practicable series of
stepped objectives, including
timeframes, to increase the percentage
of beneficially used material while
reducing the percentage and amount
being disposed in open water,
recognizing that the volume of dredged
material generated by the dredging
program will naturally fluctuate from
year to year; and developing accurate
methods to track and report on the
placement of dredged material, with due
consideration for annual fluctuations.
(iii) In coordination with the Steering
Committee, serve as a forum for:
Continuing exploration of new
beneficial use alternatives to open-water
disposal; matching the availability of
beneficial use alternatives with dredging
projects; exploring cost-sharing
opportunities; and promoting
opportunities for beneficial use of clean,
parent marine sediments often
generated in the development of CAD
cells.
(iv) Assist the USACE and EPA in
continuing long-term efforts to monitor
dredging impacts in Long Island Sound,
including supporting the USACE’s
DAMOS (Disposal Area Monitoring
System) program and related efforts to
study the long-term effects of openwater placement of dredged material.
(2) Geographic scope. The geographic
scope of the LIS RDT includes all of
Long Island Sound and adjacent waters
landward of the seaward boundary of
the territorial sea (three-mile limit) or,
in other words, from Throgs Neck to a
line three miles seaward of the baseline
across western Block Island Sound.
(3) Membership. The LIS RDT shall be
comprised of representatives from the
states of Connecticut and New York,
EPA, USACE, and, as appropriate, other
federal and state agencies. As previously
noted, state participation on the LIS
RDT is voluntary.
(4) Organization and procedures.
Specific details regarding structure (e.g.,
chair, committees, working groups) and
process shall be determined by the LIS
RDT and may be revised as necessary to
best accomplish the team’s purpose.
(G) If the volume of open-water
disposal of dredged material, as
measured in 2026, has not declined or
been maintained over the prior ten
years, then any party may petition EPA
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to conduct a rulemaking to amend the
restrictions on the use of the sites.
*
*
*
*
*
(5) Western Long Island Sound
Dredged Material Disposal Site (WLDS).
*
*
*
*
*
(v) Period of use: Continuing use.
*
*
*
*
*
[FR Doc. 2016–16147 Filed 7–6–16; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
46 CFR Parts 1, 10, 11, 12, 13, 14, and
15
[Docket No. USCG–2016–0611]
Policy for Credentialing Officers of
Towing Vessels
Coast Guard, DHS.
Notice of availability.
AGENCY:
ACTION:
The Coast Guard announces
the availability of Navigation and Vessel
Inspection Circular (NVIC) 03–16,
Guidelines for Credentialing Officers of
Towing Vessels. This NVIC provides
guidance to mariners concerning
regulations governing endorsements to
Merchant Mariner Credentials for
service on towing vessels.
DATES: The policy announced in NVIC
03–16 is effective on July 7, 2016.
FOR FURTHER INFORMATION CONTACT: If
you have questions about NVIC 03–16,
call or email Luke B. Harden, Mariner
Credentialing Program Policy Division
(CG–CVC–4), U.S. Coast Guard;
telephone 202–372–2357, or
MMCPolicy@uscg.mil.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Viewing Documents
Navigation and Vessel Inspection
Circular (NVIC) 03–16, Guidelines for
Credentialing Officers of Towing
Vessels is available in the docket for this
notice of availability and can also be
viewed by going to https://www.uscg.mil/
nmc and clicking on ‘‘STCW,’’ then
click on ‘‘2014 NVIC Updates.’’ To view
NVIC 03–16 in the docket, go to https://
www.regulations.gov, type USCG–2016–
0611 in the ‘‘Search’’ box and click
‘‘Search.’’
Discussion
On December 24, 2014, the Coast
Guard published a final rule in the
Federal Register (78 FR 77796)
amending Title 46, Code of Federal
Regulations, to implement the
International Convention on Standards
E:\FR\FM\07JYR1.SGM
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Agencies
[Federal Register Volume 81, Number 130 (Thursday, July 7, 2016)]
[Rules and Regulations]
[Pages 44220-44230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16147]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[EPA-R01-OW-2016-0068; FRL-9948-61-Region 1]
Ocean Disposal; Amendments to Restrictions on Use of Dredged
Material Disposal Sites in the Central and Western Regions of Long
Island Sound; Connecticut
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) today is amending
federal regulations that designated, and placed restrictions on the use
of, the Central Long Island Sound and Western Long Island Sound dredged
material disposal sites, located offshore from New Haven and Stamford,
Connecticut, respectively. The amended regulations incorporate
standards and procedures for the use of those sites consistent with
those recommended in the Long Island Sound Dredged Material Management
Plan, which was completed by the U.S. Army Corps of Engineers on
January 11, 2016. The Dredged Material Management Plan identifies a
wide range of alternatives to open-water disposal and recommends
standards and procedures for determining which alternatives to pursue
for different dredging projects, so as to reduce or eliminate the open-
water disposal of dredged material.
DATES: This final regulation is effective on August 8, 2016.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R01-OW-2016-0068. All documents in the docket
are listed on the https://www.regulations.gov Web site. Publically
available docket materials are also available from EPA's Web site
https://www.epa.gov/ocean-dumping/dredged-material-management-long-island-sound.
FOR FURTHER INFORMATION CONTACT: Stephen Perkins, U.S. Environmental
Protection Agency, New England Regional Office, 5 Post Office Square,
Suite 100, Mail Code: OEP06-3, Boston, MA 02109-3912, telephone (617)
918-1501, electronic mail: perkins.stephen@epa.gov.
SUPPLEMENTARY INFORMATION: Organization of this document. The following
outline is provided to aid in locating information in this preamble.
I. Background
II. Response to Comments
III. Changes From the Proposed Rule
IV. Compliance With Statutory and Regulatory Requirements
V. Final Action
VI. Statutory and Executive Order Reviews
I. Background
On February 10, 2016, EPA published in the Federal Register (81 FR
7055) a proposed rule (the Proposed Rule) amending federal regulations
that designated, and placed restrictions on the use of, the Central
Long Island Sound (CLDS) and Western Long Island Sound (WLDS) dredged
material disposal sites, located offshore from New Haven and Stamford,
Connecticut, respectively. The existing restrictions on the sites were
imposed when EPA designated CLDS and WLDS (70 FR 32498) (the 2005
Rule), to ensure appropriate use and management of the designated
disposal sites and to support the common goal of New York and
Connecticut to reduce or eliminate the disposal of dredged material in
Long Island Sound.
To support this goal, the restrictions in the 2005 Rule
contemplated that there would be a regional dredged material management
plan (DMMP) for Long Island Sound that would help to guide the
management of dredged material from projects which occur after
completion of the DMMP. The amended restrictions in this Final Rule
incorporate standards and procedures for the use of those sites
consistent with those recommended in the Long Island Sound DMMP, which
was completed by the U.S. Army Corps of Engineers (USACE) on January
11, 2016.
The restrictions imposed on the sites in the 2005 Rule also
included conditions that specified that use of the sites would be
suspended if, within 120 days of completion of the DMMP, and subject to
EPA's consideration of public comments, EPA does not issue legally
binding final amendments adopting such procedures and standards. Any
such suspension in the use of the sites would be lifted if and when EPA
issues the required final rule.
II. Response to Comments
EPA received comments on the Proposed Rule from 119 individuals,
groups or entities. Comments were received from the Connecticut
Congressional Delegation, USACE, the states of Connecticut and New
York, a number of municipalities, environmental groups, harbor and
marine trade groups, and many private citizens. Approximately eighty
percent of the commenters supported the Proposed Rule, with some
offering suggested improvements. The remainder expressed opposition in
part or in whole to the Proposed Rule. A document containing copies of
all of the public comments received by EPA and a document containing
EPA's response to each of the comments have been placed in the public
docket and on the Web site identified in the ADDRESSES section of this
document. There was significant overlap among the comments received.
Below, EPA summarizes the main points of the commenters and provides
responses.
Comment #1. A number of commenters, including the states of
Connecticut and New York, asked that EPA be explicit in retaining the
common goal of the 2005 Rule--to reduce or eliminate open-water
disposal of dredged material in Long Island Sound.
Response #1. EPA did not intend to signal any change to the goal of
the 2005 Rule. In fact, the goal was so stated in the first paragraph
of the Background section of the Proposed Rule. EPA did not include the
goal statement in the proposed regulations because it was previously
included in a provision addressing development of the DMMP and EPA
deleted that provision because the DMMP had been completed. Again, EPA
did not by this deletion intend to signal a change in the goal.
Therefore, to address this comment, EPA has added a sentence, restating
the common goal, in the introductory paragraph (b)(4)(vi) in the Final
Rule.
Comment #2. The states of Connecticut and New York proposed similar
ideas for revisions to the Proposed Rule intended to spur increased
beneficial use and result in staged reductions in open water
[[Page 44221]]
disposal of dredge material over time. The suggested revisions include
creation of a Steering Committee, consisting of high level
representatives from the states, EPA and USACE. The comments propose
that the charge to the Steering Committee would be to develop a
baseline for the amount of dredged material being placed in open water
and the amount being beneficially used, and to establish a reasonable
and practicable series of stepped objectives (with timeframes) for
reducing the amount of open-water placement and increasing the amount
of beneficially used material, while also recognizing that there will
be fluctuations in annual volumes of dredged material generated due to
the very nature of the dredging program. The comments also call for the
stepped objectives to incorporate an adaptive management approach
toward continuous improvement, and for the charge to the Steering
Committee also to include developing accurate methods to track
reductions, with due consideration for annual fluctuations in the
amount of dredging, and reporting on progress. The comments suggest
that when tracking progress, it would be recognized that exceptional
circumstances may result in delays in meeting an objective. Exceptional
circumstances should be infrequent, irregular and unforeseeable.
Certain other commenters also supported the inclusion of a staged
reduction in open-water disposal.
Response #2. EPA agrees with Connecticut and New York that it would
be useful to formally establish the Long Island Sound Steering
Committee (Steering Committee), consisting of high level
representatives from the two states, EPA, USACE, and, as appropriate,
other federal and state agencies. A Steering Committee, consisting of
the same parties, was established previously to guide the development
of the DMMP and has provided a useful forum for interagency
collaboration on dredged material management in the Long Island Sound
region. Other participants could include the National Oceanic and
Atmospheric Administration's (NOAA) National Marine Fisheries Service
(NMFS), which had a seat on the previous Steering Committee, and the
state of Rhode Island, which had a seat on the previous Long Island
Sound Regional Dredging Team (LIS RDT), and may have more interest now
that the LIS RDT's geographic scope includes eastern Long Island Sound.
Consistent with the comments, the Final Rule includes a provision
establishing a Steering Committee to provide policy-level direction to
the LIS RDT and facilitate high-level collaboration among the agencies
critical to accelerating the development and use of beneficial
alternatives for dredged material.
The charge to the Steering Committee includes: Developing a
baseline for the volume and percentage of dredged material being placed
in open water and the volume and percentage being beneficially used;
establishing a reasonable and practicable series of stepped objectives
(with timeframes) for reducing the amount of dredged material placed in
open-water sites and increasing the amount of material that is
beneficially used, while also recognizing that there will be
fluctuations in annual volumes of dredged material generated due to the
very nature of the dredging program; and developing methods for
accurately tracking reductions with due consideration for annual
fluctuations. EPA agrees, and has provided, that the stepped objectives
should incorporate an adaptive management approach toward continuous
improvement. The Final Rule also provides that, when tracking progress,
the Steering Committee will recognize that exceptional circumstances
may result in delays in meeting an objective, and that exceptional
circumstances should be infrequent, irregular and unpredictable. In
carrying out its tasks, the Steering Committee will guide and utilize
the LIS RDT, as appropriate.
To be clear, neither the 2005 Rule nor the new amendments to the
Rule require or command either Connecticut or New York (or Rhode
Island) to participate on the Steering Committee or the LIS RDT.
Participation by the states is voluntary. That said, EPA expects that
the states will choose to participate on the Steering Committee and the
LIS RDT. This expectation is based on several factors: (1) Connecticut
and New York both commented in favor of constituting a Steering
Committee and LIS RDT as discussed above; (2) the Steering Committee
and LIS RDT will provide a dedicated venue for federal/state inter-
agency communication and collaboration on dredging and dredged material
disposal projects of interest and these sorts of discussions already
take place and are often necessary due to the legal and programmatic
responsibilities of the various agencies; and (3) New York,
Connecticut, and Rhode Island participated on the LIS RDT created under
the 2005 Rule and New York and Connecticut participated on the Steering
Committee associated with development of the DMMP. Given that EPA
anticipates that Connecticut and New York, and possibly Rhode Island,
will voluntarily participate on the Steering Committee and the LIS RDT,
EPA also expects that each of the agencies will commit the necessary
resources to make that participation on the Steering Committee and LIS
RDT meaningful, including resources needed to support collection of
data for establishing the baseline and tracking and reporting on the
future disposition of dredged materials.
Comment #3. Some commenters encouraged giving increased attention
to implementation, as distinguished from simply identification, of
feasible alternatives, and encouraged funding demonstration/pilot
programs for alternative methods of beneficial use. They noted the
importance of the states and all stakeholders working together to find
and promote alternative uses for dredged material and encouraged the
states to amend regulations to facilitate beneficial, environmentally
sound use of suitable materials upland. The states of Connecticut and
New York expressed their commitment to working with federal and state
partners to develop and promote the use of innovative and practicable
alternatives to open water disposal. Activities that may facilitate and
establish a path forward include committing to jointly implement two
pilot projects, identifying possible resources, and removing regulatory
hurdles.
Response #3. EPA agrees with the commenters that a concerted,
collaborative effort among state and federal partners will be needed to
spur greater use of beneficial alternatives, including piloting
alternatives, identifying possible resources, and eliminating
regulatory barriers, when appropriate. EPA believes the Steering
Committee should guide these efforts, with the support of the LIS RDT,
and has included this among the responsibilities of the Steering
Committee and LIS RDT in the Final Rule.
Comment #4. The states of Connecticut and New York expressed
support for EPA's proposal to charge the LIS RDT to review each project
and require beneficial use of dredged material, where practicable,
utilizing the EPA definition of practicable. They felt it was important
to note that the LIS RDT should be consulted starting in the early
stages of project planning for consideration of beneficial use
opportunities.
Response #4. EPA agrees that the LIS RDT will be most effective in
its role reviewing dredging projects if it is actively encouraging
beneficial use alternatives and if there is an expectation that
dredging project
[[Page 44222]]
proponents should consult with the LIS RDT early in the process of
planning a project to have a full view of possible alternatives for
their project. The Final Rule contains language clarifying this aspect
of the LIS RDT review process. It also should be noted that the LIS RDT
makes recommendations to the USACE; the LIS RDT does not directly
``require'' that dredged material be managed in any particular way.
In response to this comment and Comment #5 below, the Final Rule
clarifies certain of the roles and expectations of the LIS RDT. It
establishes the relationship between the Steering Committee, which
provides policy-level direction to the LIS RDT, and the LIS RDT, which
has the responsibility for execution. It also provides additional
detail on the organization and procedures for the LIS RDT. EPA views
the charter under which the LIS RDT has operated during the development
of the DMMP as a useful starting point for a new charter that
encompasses the new roles, responsibilities, and makeup of the LIS RDT.
The current LIS RDT charter will serve as the interim guide for the LIS
RDT's process until a new charter is developed.
Comment #5. USACE believes the role of the LIS RDT should be one of
an informational resource and collaborator rather than a body charged
with providing ``recommendations'' to the Corps. They raised concerns
regarding whether the role of the LIS RDT is in compliance with the
Federal Advisory Committee Act (FACA) since it is required to provide
``recommendations'' to the USACE.
Response #5. EPA notes that the 2005 Rule established the LIS RDT
and charged it with making ``recommendations'' until the completion of
the DMMP. The Proposed Rule incorporated the same language in providing
for the LIS RDT to continue into the future. The ``recommendations'' of
the LIS RDT are not formal decisions subject to appeal, but, rather,
are advice to the USACE as to how the LIS RDT thinks particular dredged
material should be managed. The LIS RDT will attempt to make consensus
recommendations to the USACE, but if consensus cannot be achieved,
individual LIS RDT member agencies may offer their own comments through
the standard regulatory process. Presumably, recommendations will be
based upon whether or not the LIS RDT (or an individual agency)
believes it has identified one or more practicable alternatives to
open-water disposal for a particular project.
Recommendations from the LIS RDT or its members are not binding
upon the USACE, EPA or any other state or federal agency. While the
USACE must fully consider the recommendations, EPA does not intend for
the LIS RDT to in any way usurp the USACE's authority to make
independent decisions regarding the placement of dredged material. At
the same time, the USACE's decisions regarding whether to authorize
dredged material disposal under the MPRSA continue to be subject to EPA
review and concurrence under Section 103(c) of the MPRSA, 33 U.S.C.
1413(c), and 40 CFR 225.2. While EPA will also consider recommendations
of the LIS RDT or its members, EPA also does not intend for the LIS RDT
to in any way usurp EPA's authority to make independent decisions in
its review of USACE decisions regarding whether to authorize the open-
water disposal of dredged material.
EPA does not intend for the LIS RDT, in the exercise of its
responsibility to review projects, to unduly delay the USACE's
decision-making. EPA expects that the LIS RDT will report to the USACE
on its review of specific projects within 30 days of receipt of project
information. If the LIS RDT fails to report to the USACE in this
timeframe, the USACE may proceed with its permit decision process. The
Final Rule contains language clarifying this point.
Regarding USACE's concerns about the FACA, EPA has carefully
reviewed the roles of the LIS RDT and Steering Committee as contained
in the Final Rule and finds that the LIS RDT and Steering Committee are
exempt from the FACA under 2 U.S.C. 1534(b). See also Memorandum by the
Office of Management and Budget (OMB) entitled, ``SUBJECT: Guidelines
and Instructions for Implementing Section 204, `State, Local, and
Tribal Government Input,' of Title II of P.L. 104-4'' (Sept. 21, 1995).
At the same time, creating federal/state committees such as the LIS RDT
and Steering Committee to share information and advice and
recommendations is also consistent with the FACA and relevant
implementing guidance from OMB.
Comment #6. New York State requested that, to provide additional
``surety'' that the goal of reducing or eliminating open water disposal
is met, an additional provision be included in the rule to provide that
if there is an initial failure to maintain or reduce the amount of
disposal over the next ten years, as measured at year 10, then the rule
can be re-opened upon a petition to EPA.
Response #6. EPA is confident that the restrictions contained in
today's Final Rule will be sufficient to make progress toward the goal
of reducing or eliminating open-water disposal. However, if the volume
of dredged material disposed of at the sites, as measured ten years
from now, has increased, it may be an indication that the standards and
procedures contained in the Final Rule have not succeeded as intended.
Alternatively, it may indicate that despite successful efforts to
maximize dredged material management by methods other than open-water
disposal, it is even more difficult to identify or develop such
alternative methods of dredged material management than is currently
anticipated. In either case, EPA agrees that it is reasonable to
include an explicit provision in the Final Rule that provides any party
with the opportunity under these circumstances to petition EPA to amend
the regulations. EPA has added paragraph (b)(4)(vi)(H) to the Final
Rule, to provide for this. EPA has not, however, prejudged whether it
will find any regulatory amendments to be appropriate. EPA will assess
and decide upon any such petition based on the facts and law prevailing
at the time of the petition.
Comment #7. Several commenters noted that cost should not be the
overwhelming factor in the decision-making process. In their view, cost
seems only assigned to beneficial use. They believe cost and potential
funding mechanisms for greater use of alternatives should be included.
Response #7. Cost is a very important component of the decision-
making process. USACE is constrained by statute, regulation, and
policies that govern what they can use federal funds for. The Federal
Base Plan for any particular project is defined as the least cost,
environmentally acceptable alternative for constructing the project
that is consistent with sound engineering practices. Thus, projects are
planned, designed and constructed in a manner that efficiently uses
very limited federal fiscal resources and that meets applicable
environmental standards. The term Federal Standard is often used
synonymously with Federal Base Plan, and is defined in USACE
regulations as the least costly dredged material placement alternative
identified by the USACE that is consistent with sound engineering
practices and meets the environmental standards established by EPA's
Clean Water Act (CWA) Sec. 404(b)(1) guidelines evaluation process or
EPA's ocean dumping criteria under the MPRSA. [33 CFR 335.7] See also
33 CFR 336.1(c)(1).
If a beneficial use is selected for a project and that beneficial
use happens
[[Page 44223]]
to be (or be part of) the Federal Base Plan option for the project, the
costs of that beneficial use are assigned to the navigational purpose
of the project. Beneficial use project costs exceeding the cost of the
Federal Base Plan (Federal Standard) option become either a shared
federal and non-federal responsibility, or entirely a non-federal
responsibility, depending on the type of beneficial use and the
applicability of federal funding authority.
The DMMP makes clear the USACE's willingness to use the authorities
available to it to pay for what it lawfully can. The authorities that
allow USACE to pursue alternatives beyond the Base Plan all require
some prescribed percentage of non-federal cost-sharing. Identifying
future sources of non-federal cost sharing is one of the important
challenges for the Steering Committee and LIS RDT.
Beyond trying to find funding sources for costs above the Federal
Standard, another important role for the LIS RDT is to identify
incentives and remove barriers to beneficial use such that the cost of
alternatives becomes more competitive with open-water disposal. It has
become clear in recent years that sandy dredged material is a valuable
commodity, especially along New England's beachfronts. Thus there are
economic as well as environmental factors that result in most suitable
sandy dredge material being used beneficially, principally for beach
and nearshore bar nourishment. The next challenge is to find economic
and beneficial environmental uses for suitable silty material. As
coastal resiliency becomes an increasingly important priority, EPA is
hopeful that, and thinks that there is a good chance that,
opportunities for beneficial uses of silty material will emerge and
expand.
Comment #8. USACE expressed concern that the Proposed Rule could
have a significant adverse impact on federal navigation by potentially
adding significant costs to USACE projects. Specifically, the USACE is
concerned that a scenario could arise where a practicable alternative
is identified that exceeds the Federal Standard and therefore would
require a non-federal sponsor to fund the difference in cost. If a non-
federal sponsor could not do so or refused to do so, disposal at the
CLDS or WLDS would then be prohibited and the project could not go
forward because of the existence of a practicable alternative to open-
water disposal. As such, this provision of the Proposed Rule would
impact the USACE's application of the Federal Standard and negatively
impact maintenance of Federal Navigation Projects in Long Island Sound.
The USACE also expressed a related concern that the requirement that
any practicable alternative be fully utilized for the maximum volume of
material practicable could require USACE to dispose of material at more
than one location, potentially adding significant cost.
The concern about the possibility that a project might not go
forward was echoed by the Connecticut Congressional Delegation. In
order to effectively maintain the balance between environmental and
economic benefits of Long Island Sound, they urged that some certainty
regarding the potential cost of maintenance projects must be included
in the final language. Knowing the makeup of dredged material from each
navigation project is different, they understand that placement
alternatives need to be examined on a case-by-case basis. They noted
that EPA itself recognizes in the Proposed Rule that the lack of
clarity on future project costs ``could result in deferral of
maintenance or improvement projects that could impact navigation.'' The
delegation expressed hope that the Final Rule will more clearly address
this issue.
Response #8. The term ``practicable alternative'' is defined in 40
CFR 227.16(b) of EPA's MPRSA regulations as an alternative that is
``available at reasonable incremental cost and energy expenditures,
[and] which need not be competitive with the costs of ocean dumping,
taking into account the environmental benefits derived from such
activity, including the relative adverse environmental impacts
associated with the use of alternatives to ocean dumping.'' The
definition has been part of the restrictions on the CLDS and WLDS since
the 2005 Rule (compare (b)(4)(vi)(I)(1) and (2) in the 2005 Rule with
(b)(4)(vi)(C)(1) and (2) in the Proposed Rule). The accompanying
discussions in the preamble of the 2005 Rule and the Proposed Rule are
essentially the same. In the nearly eleven years that the restrictions
have been in place there have been no instances where a dredging
project could not go forward on this basis. Furthermore, neither the
2005 Rule nor the current amendments create a new definition of
practicable; they simply cross-reference and rely upon the pre-existing
definition in EPA's regulations at 40 CFR 227.16(b), which was
promulgated in 1977. 42 FR 2476, 2479 (Jan. 11, 1977). Meanwhile, the
USACE defines ``practicable'' as follows: ``Practicable means available
and capable of being done after taking into consideration cost,
existing technology, and logistics in light of overall project
purposes.'' 33 CFR 335.7.
The possibility that EPA and USACE might disagree whether or not an
alternative is ``practicable'' is rooted, in part, in the fact that the
two agencies have different regulatory definitions of the term
``practicable.'' That difference has existed since at least 1988, when
the USACE's current regulatory definition was promulgated. At the same
time, although the two definitions are different, they are similar and
have important commonalities. Under both definitions, a practicable
alternative must be available taking cost and other factors into
consideration. As a result, EPA expects that it would be an unusual
case in which the two definitions would lead to different conclusions
about an alternative's practicability. Indeed, EPA is unaware of any
project in New England that has been stopped due to the difference in
definitions.
In any event, EPA's definition of ``practicable'' and its
application do not directly affect the USACE's definition of the
Federal Standard. If EPA determines that an alternative is
``practicable,'' then non-federal sponsors will need to be found to pay
for the incremental cost above what the USACE can legally participate
in. One of the important roles of the Steering Committee and LIS RDT
described earlier, is the identification and piloting of beneficial use
alternatives, identifying possible resources, and eliminating
regulatory barriers. EPA expects that the Steering Committee and LIS
RDT will, generally and on a project specific basis, facilitate the
process of matching projects, beneficial use alternatives, and the
resources necessary to implement them, thus mitigating the risk that a
project cannot proceed.
EPA's definition of ``practicable'' requires that the alternative
be ``available at reasonable incremental cost.'' Said differently, by
definition, a ``practicable alternative'' will not impose unreasonable
incremental cost. This would apply as well to the consideration of
multiple potential management alternatives for dredged material from a
single project, a scenario that the USACE in concerned might add
significant costs. Again, incremental costs could not be unreasonable
without also rendering the alternative impracticable. As noted in the
preamble to the Proposed Rule, the language retained from the 2005 Rule
does not attempt to specify in advance how the ``reasonable incremental
cost'' standard will be applied in any particular case. The regulation
contemplates a balancing test and EPA believes that the determination
is best made on a case-by-
[[Page 44224]]
case basis. The language of the 2005 Rule also does not attempt to
specify who will need to pay for any reasonable incremental costs.
Rather, the share of such costs (if any) to be borne by private
parties, state government, local government, or the federal government
also will need to be worked out in response to actual situations.
EPA cannot eliminate in advance the possibility that no entity will
have the means to pay the non-federal share of an alternative EPA has
determined is practicable, whether in Long Island Sound or anywhere
else in the country. However, in Long Island Sound, with the states and
federal agencies working in partnership to implement beneficial use
alternatives, EPA believes that the likelihood of a project not going
forward because of a lack of funding for the reasonable incremental
cost of a practicable alternative has been made as remote as possible.
Comment #9. Many commenters noted that dredging is necessary to
ensure recreational and commercial access to Long Island Sound.
Marinas, boatyards, and boat clubs are the main access for the public
to get out onto the Sound and they need to dredge periodically to
maintain sufficient depth for safe navigation. Dredging is necessary to
ensure the existence of commercial and recreational industries that
generate billions of dollars and support thousands of jobs around the
Sound. An important element of state coastal zone management programs--
to retain, promote, and enhance access to waterways--will be harmed if
the public and marine industry cannot access the Sound.
Response #9. EPA agrees that dredging to provide for safe
navigation to and from Long Island Sound is a necessary activity and
acknowledges that the marine trade industry is an important contributor
to the economy of both states in the Long Island Sound region. The
policy goals of the Coastal Zone Management Act are to ``preserve,
protect, develop, and where possible, to restore or enhance, the
resources of the Nation's coastal zone.'' This includes achieving wise
use of the land and water resources of the coastal zone, giving full
consideration to ecological, cultural, historic, and esthetic values as
well as the needs for compatible economic development. EPA agrees that
providing public access to the coasts for recreation purposes is an
important goal of coastal zone management programs. EPA notes that the
protection of natural resources, including wetlands, floodplains,
estuaries, beaches, dunes, barrier islands, coral reefs, and fish and
wildlife and their habitat, within the coastal zone is also an
important goal. EPA, USACE, NOAA, and the state coastal zone management
programs seek to harmonize these goals.
Comment #10. Numerous commenters believe there needs to be an open-
water placement option for dredged material. They express concern that
without an open-water option, dredging will become prohibitively
expensive.
Response #10. EPA agrees that there is a need for open-water
disposal sites in Central and Western Long Island Sound as was
demonstrated when EPA designated the sites in 2005 and has been
reaffirmed by the DMMP. EPA is retaining these sites as open-water
placement options for the long term. However, the Final Rule also
reaffirms that the overarching goal is to reduce or eliminate wherever
practicable the open-water disposal of dredged material. The amendments
make clear that unsuitable material shall not be disposed of at the
sites, that sandy material should be used beneficially in almost all
cases, and that alternatives to open-water placement of silty material
should be thoroughly considered, and used whenever practicable, before
open-water placement is allowed.
Comment #11. Commenters had mixed views concerning the Long Island
Sound DMMP. Some feel the DMMP provides useful information on what
should be done with dredged material and how these projects should be
managed. Others feel the DMMP is insufficient and will perpetuate the
status quo and EPA cannot rely solely on the DMMP in amending the rule.
Rather they assert that EPA must amend the rule to establish additional
procedures and standards that will result in clear, staged reductions
in open-water disposal of dredged material over time.
Response #11. EPA believes the DMMP provides very useful
information for managing toward the goal of reducing or eliminating the
open-water disposal of dredged materials in the Sound. The DMMP
provides recommended standards and procedures as well as identifying
potential alternatives to open water disposal for each of the 52
federal navigation projects in Long Island Sound. The Final Rule builds
on the procedures recommended in the DMMP and provides a strong
management framework for achieving the goal of reducing or eliminating
open-water disposal with the addition of the Steering Committee and its
responsibilities, as described in Response #2.
Comment #12. Some commenters believe disposal of any dredged
material in the Sound should not be allowed to continue. They believe
open water disposal does not make environmental sense, will have a
negative impact on the ecosystem of Long Island Sound, and that toxic
or contaminated sediment should not be dumped in the Sound.
Response #12. As noted above, EPA thinks, many commenters
acknowledge, and the DMMP helps to document, that dredging is and will
continue to be needed to allow for safe navigation in the harbors,
marinas and channels of Long Island Sound. This is important for public
safety, marine commerce and recreation, and national security. In order
to handle this dredged material, EPA believes it is neither possible
nor practical to simply end open water disposal at this time. The goal
set in 2005 and retained in the Final Rule is to reduce or eliminate
open-water disposal. The Final Rule establishes standards and
procedures toward that end.
EPA strongly disagrees with the suggestion that toxic sediments
might be disposed of at the sites. EPA's MPRSA regulations require
rigorous physical, chemical, and biological testing and analysis of
sediments is conducted prior to issuance of any permit to place
material at the sites. See 40 CFR part 227. As the Proposed and Final
Rule make clear, sediments that do not pass these tests are considered
``unsuitable'' and shall not be disposed of at the sites.
The USACE's Disposal Area Monitoring System (DAMOS) has gathered
information on dredged material placement sites in the Sound since the
late 1970s. The program has generated over 200 detailed reports
addressing questions and concerns related to placement of dredged
material in the Sound. Sequential surveys of biological conditions at
sites following the placement of dredged material consistently show a
rapid recovery of the benthic community to that of the surrounding
habitat outside the disposal sites and within the sites. The USACE and
EPA monitor benthic health and recovery and the results support the
conclusion that there is no evidence of long-term effects on the marine
environment.
With the nearly 40-year record of surveys, there have been multiple
opportunities to evaluate the effects of large storms (both hurricanes
and nor'easters) on the dredged material mounds on the seafloor. These
investigations have demonstrated long-term stability of the mounds even
at the most exposed sites.
Comment #13. Other commenters believe dredged material can be
placed in open-water sites without significant
[[Page 44225]]
harm and that the Proposed Rule provides adequate safeguards for open-
water placement. They note that permitting for dredging and relocation
of dredged material is rigorous, thorough, and costly, with multiple
agency reviews. They point to years of studies and documentation
demonstrating the lack of harm and stability of the dredged materials
placed at these sites. They believe scientific evidence does not
support the claim that toxic material is dumped into the Sound. They
also note that without dredging, the sediments remain in the relative
shallows of the bays and harbors, where more fish live and where more
people swim, fish, and enjoy the water. Storms in the relative shallows
of the bays and harbors create more siltation, turbidity, and
disturbance than dredging.
Response #13. EPA agrees that the permitting process for dredging
projects is rigorous and thorough and involves coordination with
multiple agencies. As discussed in Response #12, EPA agrees that there
is a substantial body of scientific evidence that indicates that
suitable dredged material can be disposed of at the sites with minimal
harm to the marine environment. To the extent the commenters are
addressing possible concerns about exposure to materials that might be
dredged in the future, it is possible that they are dispersed across a
greater surface area and at depths more readily re-suspended by the
natural forces of winds, waves, and tides compared to the more compact
placement at the CLDS and WLDS at depths much less influenced by winds
and waves.
Comment #14. Some commenters said that EPA's analysis should
consider the nitrogen loading associated with open-water disposal and
reconcile it with EPA's nitrogen strategy for Long Island Sound.
Response #14. As discussed in the DMMP, the annual placement of
dredged material at the open-water sites is estimated to add less than
one-tenth of one percent of the overall annual nitrogen loading to Long
Island Sound. The dredging process scrapes a relatively thin layer of
surficial sediment from a wide area, and aquatic placement consolidates
that volume of sediment into a much smaller footprint. Hence, much of
the nitrogen that was available for potential future release from
surficial sediment (due to biological reworking or physical disturbance
in the shallower environment) is sequestered out of contact with the
water column in deposits that have been shown to be stable features on
the seafloor.
Comment #15. Some commenters believe dredged material should be
used beneficially. Others note that moving away from open-water
disposal is feasible in the long run, but the costs associated with
these alternatives are far greater than funding available today.
Response #15. EPA agrees that suitable dredged material should be
used beneficially whenever and wherever practicable. The standards and
procedures contained in the Final Rule and the menu of alternatives
contained in the DMMP provide the structure and means to follow a path
that should result in reducing open-water disposal while increasing
beneficial use of dredged materials. EPA and the USACE believe that
sandy materials can be beneficially used in many cases currently and
with even greater frequency in the future. The next challenge is to
find economic and beneficial environmental uses for suitable silty
material. As coastal resiliency becomes an increasingly important
priority, EPA is hopeful and expects that opportunities for beneficial
uses of silty material will emerge and expand.
Comment #16. The USACE noted that the Proposed Rule maintains the
current language of 40 CFR 228.15(b)(4)(vi) which provides, ``All
references to `permittees' shall be deemed to include the U.S. Army
Corps of Engineers (USACE) when it is authorizing its own dredged
material disposal from a USACE dredging project.'' The USACE explains
that it does not permit its own projects and is therefore not a
permittee. USACE requested the language be stricken.
Response #16. As noted by USACE, the language in question was
included in the restrictions in the 2005 Rule. The intention of the
2005 Rule was to apply the restrictions to all persons who may seek to
dispose of dredged material at the sites under MPRSA. As discussed in
the preamble to the 2005 Rule, the restrictions were intended to apply
both to all MPRSA permittees (i.e., private parties and governmental
agencies other than the USACE), and to the USACE itself which disposes
of dredged material pursuant to the ``authorizations'' that it grants
to itself rather than permits. See 70 FR 32511 (June 3, 2005). See also
33 U.S.C. 1413(e); 40 CFR 220.2(h); 33 CFR 336.1(a). The USACE was
``deemed'' to be a permittee in the 2005 Rule only to make it clear
that it was subject to the site Restrictions where the term
``permittee'' was used, but not to mean that the Corps was actually a
permittee. Thus, the USACE was not considered to be a permittee but
would be treated like one in this context.
EPA understands the USACE's comment as objecting to being
considered a ``permittee,'' rather than an indication that the USACE is
not subject to the restrictions. Since the other proposed revisions to
the 2005 Rule eliminated the use of the word ``permittee,'' there is no
longer a need to specifically qualify what ``permittee'' refers to.
Consistent with the USACE's comment and EPA's intention that the
restrictions apply to all persons who may dispose of dredged material
at the sites, but not that the USACE would be an actual permittee, EPA
has revised the sentence in question in 40 CFR 228.15(b)(4)(vi) to read
(in pertinent part): ``The restrictions apply to the U.S. Army Corps of
Engineers (USACE) when it is authorizing its own dredged material
disposal from a USACE dredging project . . . .''
Comment #17. The U.S. Department of the Interior's Bureau of Indian
Affairs (BIA) requested that EPA consult with the Shinnecock Indian
Nation concerning the amendments to the 2005 Rule.
Response #17. EPA coordinated with Tribal nations in Connecticut,
Rhode Island, and New York, including the Shinnecock Indian Nation,
throughout the site designation process. None of the tribes that were
contacted expressed interest in EPA consulting with them. Upon receipt
of the letter from BIA, EPA contacted the Shinnecock Indian Nation to
gauge its interest in participating in the formal consultation process,
but the tribe did not express an interest in participating. EPA will
continue to coordinate with the Shinnecock Indian Nation, as
appropriate, in the future.
Comment #18. One commenter asserted that the eastern boundary of
Long Island Sound should run from Little Gull Island, through
Bartlett's Reef to the Connecticut mainland. They assert that Block
Island Sound, Gardiners Bay, the Race, Fishers Island Sound and the New
London Disposal Site are not part of Long Island Sound.
Response #18. In 2009, after due consideration of the issue, EPA
advised the USACE that the boundary suggested by the commenter should
not be used as the eastern boundary of the Sound under MPRSA Section
106(f). EPA's analysis concluded that the boundary, instead, runs
northeasterly from Orient Point, through Plum Island, Great Gull and
Little Gull Islands, Fishers Island, and Napatree Point, RI, which is
sometimes referred to as the ``Old Base Line.'' This boundary has been
used consistently by EPA and USACE in all discussions and documents
concerning
[[Page 44226]]
dredged material disposal sites in Long Island Sound.
Comment #19: One commenter claimed that EPA has incorrectly
concluded that the proposed action will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act.
Response #19: EPA disagrees with the commenter regarding the
conclusion that the proposed action will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act. As EPA noted in the Proposed Rule, the
restrictions apply only to projects subject to MPRSA (i.e., all federal
projects and non-federal projects greater than 25,000 cubic yards).
Small entities are most likely to be involved with projects below the
25,000 cubic yard threshold. Therefore, they are not subject to these
restrictions and are subject to Clean Water Act requirements instead.
If anything, EPA's action to amend the regulations and maintain the
CLDS and WLDS designations will assist small entities by maintaining
the CLDS and WLDS as clear options for open-water disposal of dredged
material, when appropriate.
III. Changes From the Proposed Rule
The Final Rule incorporates the standards and procedures contained
in the Proposed Rule and, pursuant to the comments discussed above,
revises them as follows.
A sentence, restating the common goal to reduce or eliminate open
water disposal of dredged material in Long Island Sound, has been added
to the introductory paragraph (b)(4)(vi) in the Final Rule. Another
sentence in the same paragraph has been revised to clarify that
although the USACE is not a permittee, the restrictions also apply to
the USACE when it is authorizing its own dredged material disposal from
a USACE dredging project.
The Final Rule establishes a Long Island Sound Dredging Steering
Committee consisting of high level representatives from the states,
EPA, the USACE, and, as appropriate, other federal and state agencies.
The Steering Committee will provide policy-level direction to the LIS
RDT and facilitate high-level collaboration among the agencies critical
to accelerating the development and use of alternatives to open-water
disposal of dredged material. The charge to the Steering Committee
includes: developing a baseline for the volume and percentage of
dredged material being placed in open water and the amount and
percentage being beneficially used; establishing a reasonable and
practicable series of stepped objectives (with timeframes) for reducing
the amount of open water placement and increasing the amount of
beneficially used material, while also recognizing that there will be
fluctuations in annual volumes of dredged material generated due to the
very nature of the dredging program; and developing accurate methods
for tracking reductions with due consideration for annual fluctuations.
The Final Rule specifies that the stepped objectives should incorporate
an adaptive management approach toward continuous improvement. When
tracking progress, the Steering Committee will recognize that
exceptional circumstances may result in delays meeting an objective.
Exceptional circumstances should be infrequent, irregular, and
unpredictable. In carrying out its tasks, the Steering Committee shall
guide and utilize the LIS RDT, as appropriate.
Participation of Connecticut, New York, and Rhode Island on the
Steering Committee and LIS RDT is voluntary; it is not legally mandated
by the new regulations. That said, EPA expects, as discussed earlier,
that Connecticut and New York (and possibly Rhode Island) will
participate and that each of the member agencies will commit the
necessary resources to support the work of the Steering Committee and
the LIS RDT, including collecting the data necessary to support the
establishment of the baseline and tracking and reporting the future
disposition of dredged materials. EPA expects the Steering Committee,
with the support of the LIS RDT, to guide a concerted effort to spur
greater use of beneficial use alternatives, including piloting
alternatives, identifying possible resources, and eliminating
regulatory barriers. The Final Rule contains provisions establishing
the Steering Committee and setting out the responsibilities described
above. [(b)(4)(vi)(E)]
The Final Rule clarifies certain of the roles and responsibilities
of the LIS RDT. Again, participation by the states on the LIS RDT is
voluntary, but EPA expects the states to participate and to provide the
resources necessary for meaningful participation. The Final Rule
establishes the relationship between the Steering Committee, which
provides policy-level direction for the LIS RDT, and the LIS RDT, which
has the responsibility for execution. It more explicitly calls for
project proponents to consult with the LIS RDT at the earliest possible
stage to expand consideration of beneficial use alternatives. The Final
Rule sets a clear expectation that the LIS RDT will report to USACE on
its review of final projects within 30 days of receipt of project
information. It also provides additional detail on the organization and
procedures for the LIS RDT. EPA views the charter under which the LIS
RDT has operated during the development of the DMMP as a useful
starting point for a new charter that encompasses the revised roles,
responsibilities and makeup of the LIS RDT. The current LIS RDT charter
should serve as the interim guide for the LIS RDT's process until a new
charter is developed. [(b)(4)(vi)(F)]
Lastly, the Final Rule provides the potential for reconsidering the
rule, upon petition, if in ten years the amount of dredged material
disposed of at the sites has not been maintained or reduced.
[(b)(4)(vi)(H)]
IV. Compliance With Statutory and Regulatory Requirements
The preamble to the 2005 Rule described how the dredged material
disposal site designation process that culminated in the designation of
the CLDS and WLDS was consistent with the requirements of the MPRSA,
the CWA, the National Environmental Policy Act (NEPA), the Coastal Zone
Management Act (CZMA), the Endangered Species Act (ESA), and the
Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA). See
70 FR 32502-32508 (June 3, 2005). While the CWA does not apply
specifically to an EPA designation of a long-term dredged material
disposal site under the MPRSA, future federal and non-federal projects
involving dredged material disposal in Long Island Sound will require
both a section 404 permit as well as a State Water Quality
Certification pursuant to section 401 of the CWA.
In the preamble to the Proposed Rule, EPA determined that the
proposed amendments to the 2005 Rule, and the process by which they
were developed, also are consistent with the laws noted above. 81 FR
7060-7061. One of the important factors in this determination was that
the amended Rule would provide the same or greater protection of water
quality and the marine environment as the 2005 Rule. 81 FR 7060. EPA's
conclusions regarding compliance with those laws has not changed
following consideration of public comments.
As the preamble to the Proposed Rule explained, the proposed
amendments to the 2005 Rule do not make decisions about the suitability
of any particular dredged material for open-water disposal or about any
other type of management of the material. Such decisions will be made
for specific
[[Page 44227]]
dredging projects on the basis of project-specific permitting
evaluations. The amendments to the regulations, instead, provide
specific standards and procedures designed to further the goal of
reducing or eliminating open-water disposal of dredged material at the
CLDS and WLDS. These amendments are consistent with provisions of the
2005 Rule that called for possible revisions to the Rule based on the
standards and procedures recommended in the Long Island Sound Dredged
Material Management Plan (DMMP). The preamble to the Proposed Rule also
provided additional statute-specific discussion. 81 FR 7060-7061.
At the time of the Proposed Rule, consultation and coordination
with state and federal agencies regarding the CZMA, ESA, MSFCMA,
respectively, were underway. Those consultations have been completed,
as discussed below.
1. Marine Protection, Research, and Sanctuaries Act (MPRSA)
In the preamble to the 2005 Rule, EPA explained in detail how its
designation of the CLDS and WLDS complied with the MPRSA. 70 FR 32502-
32508. In the preamble for the Proposed Rule, EPA explained how the
proposed amendments to the 2005 Rule also complied with the MPRSA. As
part of such compliance, EPA has finalized updates to the Site
Management and Monitoring Plan (SMMP) for both the CLDS and the WLDS.
2. Coastal Zone Management Act (CZMA)
Under the CZMA, EPA, like any other federal agency, is required to
provide relevant states with a determination that any activity it
proposes that could affect the uses or natural resources of a state's
coastal zone is consistent to the maximum extent practicable with the
enforceable policies of the state's coastal zone management program.
EPA determined that the amendments to the 2005 Rule are consistent with
the enforceable policies of the coastal zone management programs of
both Connecticut and New York and provided each state with a written
determination to that effect. EPA consulted with each state's coastal
zone management program prior to this final rulemaking. In a letter
dated April 8, 2016, the Connecticut Department of Energy and
Environmental Protection concurred with EPA's determination with regard
to Connecticut's coastal zone management program. The New York State
Department of State (NY DOS) provided its concurrence on April 25,
2016. NY DOS's concurrence was conditioned on the Final Rule including
provisions that address NY DOS's comments on the Proposed Rule. EPA
believes the changes to the Proposed Rule described above are
consistent with NY DOS's condition(s) and, thus, considers NY DOS to
have concurred with the Final Rule.\1\
---------------------------------------------------------------------------
\1\ NY DOS's conditional concurrence stated its conclusion that
EPA's rule would not comply with the enforceable provisions of New
York's coastal zone management program unless EPA adopted provisions
consistent with the conditions proposed by NY DOS. While EPA has,
indeed, adopted such provisions that assure NY DOS's concurrence,
EPA does not agree with NY DOS's assessment of proposed regulatory
amendments. EPA, instead, determined that the terms of its Proposed
and Final Rules fully comply or, in the alternative, comply to the
maximum extent practicable with the enforceable provisions of New
York's coastal zone management program. EPA's assessment is
documented in the record, including, but not limited to, its CZMA
consistency determination.
---------------------------------------------------------------------------
3. Endangered Species Act
Since the 2005 Rule, NOAA's National Marine Fisheries Service
(NMFS) and the U.S. Fish and Wildlife Service listed the Atlantic
sturgeon as an endangered species under the ESA. Parts of Long Island
Sound are among the distinct population segments listed as endangered
by NMFS in 2012. EPA's analysis considered the Atlantic sturgeon as
well as sea turtles and listed marine mammals. Consistent with the ESA,
EPA consulted with NMFS and USFWS on this rulemaking action and the
updating of the SMMPs for the two disposal sites. NMFS has concurred
with EPA's determination that any adverse effects on listed species
from this action would be insignificant or discountable, and that this
action is not likely to adversely affect any listed species or critical
habitat of such species under NMFS jurisdiction. EPA sent a ``no
effects'' determination for species under USFWS jurisdiction to the
USFWS and did not receive any response, so EPA assumed concurrence. No
additional consultation or coordination is required.
4. Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)
EPA coordinated with NMFS on this rulemaking action and the
updating of SMMPs for the two disposal sites, consistent with the
Essential Fish Habitat provisions of the MSFCMA. NMFS has concurred
with our determination that it is unlikely that this action will result
in adverse effects to any essential fish habitat. Therefore, no
additional coordination is required.
V. Final Action
EPA is publishing this Final Rule to amend the restrictions on the
use of the CLDS and WLDS. This action is consistent with, and retains a
number of, the restrictions contained in the original designation of
these sites in 2005. Certain of those restrictions required completion
of a DMMP that would identify procedures and standards for reducing or
eliminating the disposal of dredged material in Long Island Sound.
Since the DMMP has been completed EPA's Final Rule removes the
restrictions related to its development. The 2005 restrictions further
require EPA, within 120 days of completion of the DMMP, to issue final
amendments to the restrictions to incorporate procedures and standards
consistent with those recommended in the DMMP for reducing or
eliminating the disposal of dredged material in Long Island Sound.
While the Final Rule was not issued within 120 days of completion of
the DMMP (which would have been May 10), and use of the CLDS and WLDS
was temporarily suspended, issuance of today's Final Rule satisfies
that requirement such that the suspension of the sites has been lifted
and they are now available for use. See 40 CFR 228.15(b)(4)(vi)(C)
(footnote 1) and (G).
The Final Rule incorporates the standards and procedures
recommended in the DMMP and augments them by establishing a Steering
Committee to provide policy guidance and direction to the LIS RDT and
to: Develop a baseline for the volume and percentage of dredged
material being placed in open water and the amount and percentage being
beneficially used; establish a reasonable and practicable series of
stepped objectives (with timeframes) for reducing the amount of open
water placement and increasing the amount of beneficially used
material, while also recognizing that there will be fluctuations in
annual volumes of dredged material generated due to the very nature of
the dredging program; and develop accurate methods for tracking
reductions with due consideration for annual fluctuations. The stepped
objectives will incorporate an adaptive management approach toward
continuous improvement. The Rule provides that when tracking progress,
the Steering Committee will recognize that exceptional circumstances
may result in delays meeting an objective. Exceptional circumstances
should be infrequent, irregular, and unpredictable. The Final Rule also
provides that in carrying out its tasks, the Steering Committee shall
[[Page 44228]]
guide and utilize the LIS RDT, as appropriate.
The Final Rule also expressly allows any person to submit a
petition seeking changes to the rule if, in ten years, the amount of
dredged material disposed of at the sites has not been maintained or
reduced.
VI. Statutory and Executive Order Reviews
1. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action, as defined in
the Executive Order, and was therefore not submitted to the Office of
Management and Budget (OMB) for review.
2. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the PRA because it would not require persons to obtain, maintain,
retain, report or publicly disclose information to or for a federal
agency.
3. Regulatory Flexibility Act (RFA)
This action will not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (RFA). The amended restrictions in this rule are only relevant for
dredged material disposal projects subject to the MPRSA. Non-federal
projects involving 25,000 cubic yards or less of material are not
subject to the MPRSA and, instead, are regulated under CWA section 404.
This action will, therefore, have no effect on such projects. ``Small
entities'' under the RFA are most likely to be involved with smaller
projects not covered by the MPRSA. Therefore, EPA does not believe a
substantial number of small entities will be affected by today's rule.
Furthermore, the amendments to the restrictions also will not have
significant economic impacts on a substantial number of small entities
because they primarily will create requirements to be followed by
regulatory agencies rather than small entities, and will create
requirements (i.e., the standards and procedures) intended to help
ensure satisfaction of the existing regulatory requirement that
practicable alternatives to the ocean dumping of dredged material be
utilized (see 40 CFR 227.16).
4. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
5. Executive Order 13132: Federalism
This action does not have federalism implications within the
meaning of the Executive Order. It will not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.
6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175 because the restrictions will not have
substantial direct effects on Indian tribes, on the relationship
between the federal government and Indian Tribes, or the distribution
of power and responsibilities between the federal government and Indian
Tribes. EPA consulted with the affected Indian tribes in making this
determination.
7. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because EPA does not believe the environmental health or safety risks
addressed by this action present a disproportionate risk to children.
8. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
9. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
10. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes the human health or environmental risk addressed by
this action will not have a disproportionately high and adverse human
health or environmental effects on minority, low-income or indigenous
populations.
11. Executive Order 13158: Marine Protected Areas
Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to
``expeditiously propose new science-based regulations, as necessary, to
ensure appropriate levels of protection for the marine environment.''
EPA may take action to enhance or expand protection of existing marine
protected areas and to establish or recommend, as appropriate, new
marine protected areas. The purpose of the Executive Order is to
protect the significant natural and cultural resources within the
marine environment, which means, ''those areas of coastal and ocean
waters, the Great Lakes and their connecting waters, and submerged
lands thereunder, over which the United States exercises jurisdiction,
consistent with international law.''
EPA expects that this rule will afford additional protection to the
waters of Long Island Sound and organisms that inhabit them. Building
on the existing protections of the MPRSA, the ocean dumping
regulations, the 2005 Rule, the CWA, and other relevant statutes and
regulations, the final regulatory amendments are designed to promote
and support reductions in open-water disposal of dredged material in
Long Island Sound.
12. Executive Order 13547: Stewardship of the Ocean, Our Coasts, and
the Great Lakes
Section 6(a)(i) of Executive Order 13547, (75 FR 43023, July 19,
2010) requires, among other things, that EPA and certain other agencies
``. . . to the fullest extent consistent with applicable law . . . take
such action as necessary to implement the policy set forth in section 2
of this order and the stewardship principles and national priority
objectives as set forth in the Final Recommendations and subsequent
guidance from the Council.'' The policies in section 2 of Executive
Order 13547 include, among other things, the following: ``. . . it is
the policy of the United States to: (i) protect, maintain, and restore
the health and biological diversity of ocean, coastal, and Great Lakes
ecosystems and resources; (ii) improve the resiliency of ocean,
coastal, and Great Lakes ecosystems, communities, and economies. . .
.'' As with Executive Order 13158 (Marine Protected Areas), the overall
purpose of the Executive Order is to promote protection of ocean and
coastal environmental resources.
EPA expects that this Final Rule will afford additional protection
to the waters of Long Island Sound and
[[Page 44229]]
organisms that inhabit them. Building on the existing protections of
the MPRSA, the ocean dumping regulations, the 2005 Rule, the CWA and
other relevant statutes and regulations, the regulatory amendments are
designed to promote the reduction or elimination of open-water disposal
of dredged material in Long Island Sound.
13. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A ``major rule''
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a major rule as defined by 5 U.S.C.
804(2). This rule will be effective August 8, 2016.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Dated: June 24, 2016.
H. Curtis Spalding,
Regional Administrator, EPA Region 1-New England.
For the reasons stated in the preamble, title 40, Chapter I, of the
Code of Federal Regulations is amended as set forth below.
PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN
DUMPING
0
1. The authority citation for part 228 continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
0
2. Section 228.15 is amended by:
0
a. Revising paragraphs (b)(4) introductory text and (b)(4)(i) and (v)
and (b)(4)(vi) introductory text;
0
b. Removing paragraphs (b)(4)(vi)(C) through (F);
0
c. Adding new paragraphs (b)(4)(vi)(D) through (F);
0
d. Revising paragraph (b)(4)(vi)(G);
0
e. Removing paragraph (b)(4)(vi)(H);
0
f. Redesignating paragraph (b)(4)(vi)(I) as (b)(4)(vi)(C) and revising
it;
0
g. Redesignating paragraph (b)(4)(vi)(J) through (L) as (b)(4)(vi)(H)
through (J), respectively;
0
h. Removing paragraph (b)(4)(vi)(M);
0
i. Redesignating paragraph (b)(4)(vi)(N) as (b)(4)(vi)(K); and
0
j. Revising paragraphs (b)(5) introductory text and (b)(5)(v).
The revisions and additions read as follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(b) * * *
(4) Central Long Island Sound Dredged Material Disposal Site
(CLDS).
(i) Location: Corner Coordinates (NAD 1983) 41[deg]9.5' N.,
72[deg]54.4' W.; 41[deg]9.5' N., 72[deg]51.5' W.; 41[deg]08.4' N.,
72[deg]54.4' W.; 41[deg]08.4' N., 72[deg]51.5' W.
* * * * *
(v) Period of use: Continuing use.
(vi) Restrictions: The designation in this paragraph (b)(4) sets
forth conditions for the use of Central Long Island Sound and Western
Long Island Sound Dredged Material Disposal Sites (CLDS and WLDS,
respectively). These conditions apply to all disposal subject to the
MPRSA, namely, non-federal projects greater than 25,000 cubic yards and
all federal projects. With regard to federal projects, the restrictions
apply to the U.S. Army Corps of Engineers (USACE) when it is
authorizing its own dredged material disposal from a USACE dredging
project, as well as to federal dredged material disposal projects that
require authorization from a permit issued by the USACE. The goal of
these conditions is to reduce or eliminate open-water disposal of
dredged material in Long Island Sound. The conditions for this
designation are as follows:
* * * * *
(C) Disposal of dredged material at the designated sites pursuant
to the designation in this paragraph (b)(4) shall be allowed if, after
full consideration of recommendations provided by the Long Island Sound
Regional Dredging Team (LIS RDT) if the members of the LIS RDT reach
consensus, or provided by the LIS RDT's member agencies if no consensus
is achieved, the USACE finds (and EPA does not object to such finding),
based on a fully documented analysis, that for a given dredging
project:
(1) There are no practicable alternatives (as defined in 40 CFR
227.16(b)) to open-water disposal in Long Island Sound. Any available
practicable alternative to open-water disposal will be fully utilized
for the maximum volume of dredged material practicable;
(2) Determinations relating to paragraph (b)(4)(vi)(C)(1) of this
section will recognize that, consistent with 40 CFR 227.16(b), a
practicable alternative to open-water disposal may add reasonable
incremental costs. Disposal of dredged material at the designated sites
pursuant to this paragraph (b)(4) shall not be allowed to the extent
that a practicable alternative is available.
(3) The following standards for different dredged material types
have been appropriately considered:
(i) Unsuitable material. Disposal shall be limited to dredged
sediments that comply with the Ocean Dumping Regulations.
(ii) Suitable sandy material. Suitable coarse-grained material,
which generally may include up to 20 percent fines when used for direct
beach placement, or up to 40 percent fines when used for nearshore bar/
berm nourishment, should be used for beach or nearshore bar/berm
nourishment or other beneficial use whenever practicable. If no other
alternative is determined to be practicable, suitable course-grained
material may be placed at the designated sites.
(iii) Suitable fine-grained material. This material has typically
greater than 20 to 40 percent fine content and, therefore, is not
typically considered appropriate for beach or nearshore placement, but
has been determined to be suitable for open-water placement by testing
and analysis. Materials dredged from upper river channels in the
Connecticut, Housatonic and Thames Rivers should, whenever possible, be
disposed of at existing Confined Open Water sites, on-shore, or through
in-river placement. Other beneficial uses such as marsh creation,
should be examined and used whenever practicable. If no other
alternative is determined to be practicable, suitable fine-grained
material may be placed at the designated sites.
(D) Source reduction. Efforts to control sediment entering
waterways can reduce the need for maintenance dredging of harbor
features and facilities by reducing shoaling rates. Federal, state and
local agencies tasked with regulating discharges into the watershed
should continue to exercise their authorities under various statues and
regulations in a continuing effort to reduce the flow of sediments into
state waterways and harbors.
(E) There is established a Long Island Sound Dredging Steering
Committee (Steering Committee), consisting of high-level
representatives from the states of Connecticut and New York, EPA,
USACE, and, as appropriate, other federal and state agencies. The
Steering Committee will provide policy-level direction to the Long
Island Sound Regional Dredging Team (LIS RDT) and facilitate high-level
collaboration among
[[Page 44230]]
the agencies critical to promoting the development and use of
beneficial alternatives for dredged material. State participation on
the LIS RDT and Steering Committee is voluntary. The Steering Committee
is charged with: Establishing a baseline for the volume and percentage
of dredged material being beneficially used and placed at the open-
water sites; establishing a reasonable and practicable series of
stepped objectives, including timeframes, to increase the percentage of
beneficially used material while reducing the percentage and amount
being disposed in open water, and while recognizing that the amounts of
dredged material generated by the dredging program will naturally
fluctuate from year to year; and developing accurate methods to track
the placement of dredged material, with due consideration for annual
fluctuations. The stepped objectives should incorporate an adaptive
management approach while aiming for continuous improvement. When
tracking progress the Steering Committee should recognize that
exceptional circumstances may result in delays in meeting an objective.
Exceptional circumstances should be infrequent, irregular, and
unpredictable. It is expected that each of the member agencies will
commit the necessary resources to support the LIS RDT and Steering
Committee's work, including the collection of data necessary to support
establishing the baseline and tracking and reporting on the future
disposition of dredged material. The Steering Committee may utilize the
LIS RDT, as appropriate, to carry out the tasks assigned to it. The
Steering Committee, with the support of the LIS RDT, will guide a
concerted effort to encourage greater use of beneficial use
alternatives, including piloting alternatives, identifying possible
resources, and eliminating regulatory barriers, as appropriate.
(F) The goal of the Long Island Sound Regional Dredging Team (LIS
RDT), working in cooperation with, and support of, the Steering
Committee, is to reduce or eliminate wherever practicable the open-
water disposal of dredged material. The LIS RDT's purpose, geographic
scope, membership, organization, and procedures are provided as
follows:
(1) Purpose. The LIS RDT will:
(i) Review dredging projects and make recommendations as described
in paragraph (vi)(C) above. The LIS RDT will report to the USACE on its
review of dredging projects within 30 days of receipt of project
information. Project proponents should consult with the LIS RDT early
in the development of those projects to ensure that alternatives to
open-water placement are fully considered.
(ii) Assist the Steering Committee in: Establishing a baseline for
the volume and percentage of dredged material being beneficially used
and placed at the open water sites; establishing a reasonable and
practicable series of stepped objectives, including timeframes, to
increase the percentage of beneficially used material while reducing
the percentage and amount being disposed in open water, recognizing
that the volume of dredged material generated by the dredging program
will naturally fluctuate from year to year; and developing accurate
methods to track and report on the placement of dredged material, with
due consideration for annual fluctuations.
(iii) In coordination with the Steering Committee, serve as a forum
for: Continuing exploration of new beneficial use alternatives to open-
water disposal; matching the availability of beneficial use
alternatives with dredging projects; exploring cost-sharing
opportunities; and promoting opportunities for beneficial use of clean,
parent marine sediments often generated in the development of CAD
cells.
(iv) Assist the USACE and EPA in continuing long-term efforts to
monitor dredging impacts in Long Island Sound, including supporting the
USACE's DAMOS (Disposal Area Monitoring System) program and related
efforts to study the long-term effects of open-water placement of
dredged material.
(2) Geographic scope. The geographic scope of the LIS RDT includes
all of Long Island Sound and adjacent waters landward of the seaward
boundary of the territorial sea (three-mile limit) or, in other words,
from Throgs Neck to a line three miles seaward of the baseline across
western Block Island Sound.
(3) Membership. The LIS RDT shall be comprised of representatives
from the states of Connecticut and New York, EPA, USACE, and, as
appropriate, other federal and state agencies. As previously noted,
state participation on the LIS RDT is voluntary.
(4) Organization and procedures. Specific details regarding
structure (e.g., chair, committees, working groups) and process shall
be determined by the LIS RDT and may be revised as necessary to best
accomplish the team's purpose.
(G) If the volume of open-water disposal of dredged material, as
measured in 2026, has not declined or been maintained over the prior
ten years, then any party may petition EPA to conduct a rulemaking to
amend the restrictions on the use of the sites.
* * * * *
(5) Western Long Island Sound Dredged Material Disposal Site
(WLDS).
* * * * *
(v) Period of use: Continuing use.
* * * * *
[FR Doc. 2016-16147 Filed 7-6-16; 8:45 am]
BILLING CODE 6560-50-P