Ocean Disposal; Designation of an Ocean Dredged Material Disposal Site for the Southern Maine, New Hampshire, and Northern Massachusetts Coastal Region, 60370-60383 [2020-21006]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 85, Number 187 (Friday, September 25, 2020)]
[Rules and Regulations]
[Pages 60370-60383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21006]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R01-OW-2019-0521; FRL-10014-99-Region 1]


Ocean Disposal; Designation of an Ocean Dredged Material Disposal 
Site for the Southern Maine, New Hampshire, and Northern Massachusetts 
Coastal Region

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: With the publication of this Final Rule, the Environmental 
Protection Agency (EPA) is designating one ocean dredged material 
disposal site (ODMDS), the Isles of Shoals North Disposal Site (IOSN), 
located in the Gulf of Maine off the coast of southern Maine and New 
Hampshire, pursuant to the Marine Protection, Research, and Sanctuaries 
Act (MPRSA). This action is necessary to serve the long-term need for 
an ODMDS for the possible future disposal of suitable dredged material 
from harbors and navigation channels in southern Maine, New Hampshire, 
and northern Massachusetts. The basis for this action is described 
herein and in the Final Environmental Assessment (FEA). The FEA 
identifies designation of the IOSN as the preferred alternative from 
the range of options considered. The Site Management and Monitoring 
Plan (SMMP) is provided as Appendix G of the FEA.

DATES: The Final rule is effective on October 26, 2020.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OW-2019-0521, through the Federal 
eRulemaking Portal: https://www.regulations.gov.
    Docket: Publicly available docket materials are available either 
electronically at regulations.gov or on the EPA Region 1 Ocean Dumping 
web page at https://www.epa.gov/ocean-dumping/isles-shoals-north-disposal-site. They are also available in hard copy during normal 
business hours at the EPA Region 1 Library, 5 Post Office Square, 
Boston, MA 02109.
    The supporting document for this site designation is the Final 
Environmental Assessment for Designation of an Ocean Dredged Material 
Disposal Site for the Southern Maine, New Hampshire, and Northern 
Massachusetts Coastal Region.

FOR FURTHER INFORMATION CONTACT: Ms. Regina Lyons, U.S. Environmental 
Protection Agency, Region 1, 5 Post Office Square, Suite 100, Mail 
Code: 06-1, Boston, MA 02109-3912, telephone: (617) 918-1557; fax: 
(617) 918-0557; email address: [email protected].

SUPPLEMENTARY INFORMATION: Organization of this document. The following 
outline is provided to aid in locating information in this preamble.

I. Final Action
II. Background
III. Purpose and Need
IV. Disposal Site Description
V. Potentially Affected Entities
VI. Summary of Public Comments and EPA's Response
VII. Compliance With Statutory and Regulatory Authorities
    A. Marine Protection, Research, and Sanctuaries Act
    B. National Environmental Policy Act
    C. Coastal Zone Management Act
    D. Endangered Species Act
    E. Magnuson-Stevens Fishery Conservation and Management Act
VIII. Supporting Documents
IX. Statutory and Executive Order Reviews

I. Final Action

    EPA is publishing this Final Rule to designate the IOSN for the 
purpose of providing an ocean disposal option for possible use in 
managing dredged material from harbors and navigation channels in the 
southern Maine, New Hampshire, and northern Massachusetts coastal 
region. The site designation is effective for an indefinite period of 
time. Without designation of this ODMDS, there will not be an ocean 
disposal site available to serve this region after December 31, 2021, 
when the current Congressionally-authorized term of use for the Cape 
Arundel Disposal Site (CADS) expires. Use of the IOSN is subject to any 
restrictions and procedures included in the site designation and the 
approved SMMP. These restrictions are based on a thorough evaluation of 
the site pursuant to the Ocean Dumping Regulations, potential disposal 
activity expected at the site, and consideration of public review and 
comment. Additional restrictions may be placed on any permit or 
authorization to use the site.
    The site designation process has been conducted pursuant to the 
requirements of the MPRSA, Coastal Zone Management Act (CZMA), and 
other applicable federal and state statutes and regulations. Compliance 
with these requirements is described in detail in Section VII 
(``Compliance with Statutory and Regulatory Requirements''). The basis 
for this federal action is further

[[Page 60371]]

described in the FEA that identifies EPA designation of the IOSN as the 
preferred alternative. The FEA also is being released in conjunction 
with the publication of this Final Rule. After full consideration of 
public comments and extensive interagency coordination, EPA determined 
that the designation of IOSN will not have significant environmental 
impacts. Therefore, EPA is issuing a Finding of No Significant Impact 
(FONSI) with the FEA. The FONSI documents why the agency has concluded 
that no significant environmental impacts are expected to result from 
the action.

II. Background

    On September 18, 2019, EPA published in the Federal Register (84 FR 
49075) a proposed rule (the Proposed Rule) to designate the IOSN as an 
ODMDS off the coast of southern Maine and New Hampshire. In the same 
Federal Register document, EPA announced the availability for public 
comment of a Draft Environmental Assessment (DEA) and draft FONSI that 
provided a more detailed explanation of the various studies, 
interagency coordination, and public participation that supported the 
proposed action. The DEA included the draft SMMP as Appendix G. These 
documents were available for public comment for 30 days.
    The MPRSA directs EPA to designate ``sites . . . for [permitted] 
dumping that will mitigate adverse impact on the environment to the 
greatest extent practicable.'' 33 U.S.C. 1412(c). On October 1, 1986, 
the Administrator delegated the authority to designate ODMDS to the 
Regional Administrator of the Region in which the sites are located. 
The preferred alternative site, IOSN, is located within the area 
assigned to EPA Region 1. 40 CFR 1.7(b)(1). Therefore, this designation 
is occurring pursuant to the EPA Region 1 Administrator's delegated 
authority.
    EPA designates ODMDS by regulation. 40 CFR 228.4(e)(1), 228.15. 
There are currently no EPA-designated dredged material disposal sites 
off the coast of southern Maine, New Hampshire, or northern 
Massachusetts. See CFR 228.15. Section 103(b) of the MPRSA, 33 U.S.C. 
1413(b), provides that any ocean disposal of dredged material should 
occur at EPA-designated sites to the maximum extent feasible. In cases 
where use of an EPA-designated ocean disposal site is not feasible, the 
MPRSA authorizes the U.S. Army Corps of Engineers (USACE) to 
``select,'' with concurrence from EPA, an ``alternative site.'' 33 
U.S.C. 1413(b). An alternative site may not be used for more than two 
consecutive five-year terms. Id. In the absence of an EPA-designated 
site off the coast of southern Maine, New Hampshire, or Northern 
Massachusetts, the USACE previously selected an alternative site in 
this area: The Cape Arundel Disposal Site (CADS). USACE New England 
District website, https://www.nae.usace.army.mil/Missions/Disposal-Area-Monitoring-System-DAMOS/Disposal-Sites/Cape-Arundel/. However, 
this alternative site will no longer be available after December 31, 
2021, when its Congressionally-authorized term of use expires. See 
Public Law 115-270, Section 1312.
    Designation of an ODMDS by EPA does not by itself authorize the 
disposal at that site of dredged material from any dredging project. 
Designation of the IOSN would only make that ocean site available for 
disposal of dredged material from specific projects after they have 
been permitted or authorized by the USACE pursuant to the MPRSA. Such 
permit or authorization will only be provided if the applicable MPRSA 
regulations are satisfied, which means that no other environmentally 
preferable, practicable alternative for managing that dredged material 
exists, and that evaluation of the dredged material indicates that it 
is suitable for ocean disposal under the MPRSA. See 40 CFR 227.1(b), 
227.2 and 227.3; 40 CFR part 227, Subparts B and C.
    The Congressionally-defined purpose of the MPRSA is to ``regulate 
the dumping of all types of materials into ocean waters and to prevent 
or strictly limit the dumping into ocean waters of any material which 
would adversely affect human health, welfare, or amenities, or the 
marine environment, ecological systems, or economic potentialities.'' 
33 U.S.C. 1301. Therefore, ``no person shall transport from the United 
States . . . any material for the purpose of dumping it into ocean 
waters,'' except as authorized by permit and subject to EPA 
regulations. 33 U.S.C. 1411. EPA sets forth regulations implementing 
the MPRSA at 40 CFR parts 220-229 (Ocean Dumping Regulations). The 
relevant regulations are discussed in greater detail below, in the 
Compliance with Statutory and Regulatory Authorities section.
    Under the Ocean Dumping Regulations, EPA is responsible for the 
management of all ocean disposal sites designated under the MPRSA. See 
40 CFR 228.3(b). To help prevent the occurrence of unacceptable adverse 
impacts to public health or the environment, the MPRSA requires EPA, in 
conjunction with USACE, to develop a site management and monitoring 
plan (SMMP) for each designated ODMDS. 33 U.S.C. 1412(c)(3). As 
described above, EPA has developed a SMMP for the IOSN, which is 
included as Appendix G of the FEA. A draft of this SMMP was available 
for public comment. EPA is authorized to terminate or limit the use of 
these sites to further disposal activity if their use causes 
unacceptable adverse impacts. 40 CFR 228.11. Any such future 
terminations or limitations ``will be made through promulgation of an 
amendment to the disposal site designation set forth in . . . [40 CFR 
Part] 228. . . .'' Id.

III. Purpose and Need

    Periodic dredging of harbors and channels and, therefore, dredged 
material management, are essential for ensuring safe navigation and 
facilitating marine commerce. This is because the natural processes of 
erosion and siltation result in sediment accumulation in federal 
navigation channels, harbors, port facilities, marinas, and other 
important areas of our water bodies. Unsafe navigational conditions not 
only threaten public safety, but also pose an environmental threat from 
an increased risk of spills from vessels involved in accidents.
    Economic considerations also contribute to the need for dredging 
(and the environmentally sound management of dredged material). There 
are many important navigation-dependent businesses and industries in 
the southern Maine, New Hampshire, and northern Massachusetts coastal 
region, including shipping (especially the transportation of petroleum 
fuels and bulk materials), recreational boating-related businesses, 
marine transportation, commercial and recreational fishing, interstate 
ferry operations, and U.S. Navy and U.S. Coast Guard facilities. These 
businesses and industries contribute substantially to the region's 
economic output, the gross state product of the bordering states, and 
tax revenue. Continued access to harbors, berths, and mooring areas is 
vital to ensuring the continued economic health of these industries, 
and to preserving the ability of the region to import fuels, bulk 
supplies, and other commodities at competitive prices and to preserve 
ocean access for the commercial fishing fleet. In addition, preserving 
navigation channels, marinas, harbors, berthing areas, and other marine 
resources, improves the quality of life for residents and visitors to 
the southern Maine, New Hampshire, and northern Massachusetts region by 
facilitating recreational boating and associated activities, such as 
fishing and sightseeing.

[[Page 60372]]

    The purpose of this action is to designate an ocean disposal site 
that will provide a long-term dredged material disposal option for 
dredged material from harbors and navigation channels in southern 
Maine, New Hampshire, and northern Massachusetts. This is necessary to 
ensure the viability of dredging projects needed to maintain 
international commerce and navigation through authorized federal 
navigation projects and to ensure safe vessel passage for public and 
private entities.
    Other factors that EPA considered in determining the need for an 
ODMDS to serve this region include: (1) Projected dredging needs for 
the area were calculated to be approximately 1.5 million cubic yards 
(mcy) of material over the next 20 years, which significantly exceeds 
the capacity of available practicable alternatives to ocean disposal; 
(2) the states of Maine and New Hampshire have expressed concern that 
available, practicable dredged material disposal capacity is 
insufficient to meet projected long-term dredging needs and asked EPA 
to designate a new site; (3) the historically used (from 1964-1970, 
according to USACE records) former Isles of Shoals Disposal Site (IOSH) 
was examined for potential designation, however, this former site is 
located in an area that contains a diversity of habitats that are not 
compatible with the ocean disposal of dredged material; (4) the 
existing CADS is a USACE short-term selected site under MPRSA section 
103(b) that is scheduled to close on December 31, 2021; EPA considered 
designating an expanded CADS, but studies revealed that suitable areas 
with the capacity for an ODMDS are limited in and around CADS; and (6) 
the closest EPA-designated ODMDSs to the southern Maine, New Hampshire, 
and northern Massachusetts region are the Portland Dredged Material 
Disposal Site (PDS) and the Massachusetts Bay Disposal Site (MBDS), 
which are about 85.5 nautical miles (nmi) apart and would result in 30-
40 nmi haul distances for several dredging centers in the region, 
rendering some dredging projects infeasible.
    As one of the first steps in the site designation process, EPA, in 
coordination with other federal and state agencies, delineated a Zone 
of Siting Feasibility (ZSF). The ZSF is the geographic area from which 
reasonable and practicable ODMDS alternatives should be selected for 
evaluation. EPA's 1986 site designation guidance manual describes the 
factors that should be considered in delineating the ZSF and recommends 
locating open-water disposal sites within an economically and 
operationally feasible radius from areas where dredging occurs. EPA, 
Office of Marine and Estuarine Protection, Ocean Dumping Site 
Designation Delegation Handbook for Dredged Material (1986). This 
manual also directs EPA to consider navigational restrictions, 
political or other jurisdictional boundaries, the distance to the edge 
of the continental shelf, the feasibility of surveillance and 
monitoring, and operation and transportation costs. The ZSF described 
in Section 4 of the FEA includes the coastal waters of the southern 
Maine, New Hampshire, and northern Massachusetts region between Cape 
Porpoise, Maine, and Cape Ann, Massachusetts. These boundaries were 
chosen because the center point between them is roughly equidistant to 
the PDS to the north off Cape Elizabeth, Maine, and the MBDS to the 
south off Boston Harbor, Massachusetts. Factors involved in defining 
the ZSF include dredge cycle time, weather, and distance from harbors 
and navigation channels that require dredging. Adding a site roughly 
central to this area of the coast would result in a maximum haul 
distance of about 21 miles from any harbor to either the PDS, MBDS, or 
the new centrally located site.
    EPA does not consider the PDS and MBDS to be viable options for the 
southern Maine, New Hampshire, and northern Massachusetts region given 
their distance from the ZSF, which would significantly increase the 
transport distance for, and duration of, ocean disposal for dredging 
projects from that region. This, in turn, would greatly increase the 
cost of such projects and would likely render many dredging projects 
too expensive to conduct, thus threatening safe navigation and 
interfering with marine commerce and recreation. Furthermore, the 
greater transport distance would also be environmentally detrimental 
because it would entail greater energy use, increased air emissions, 
dredging projects of increased duration (with their own, separate, 
impacts), and increased risk of spills or disposal outside of the 
designated site (``short dumps'') (FEA, Section 7.0).
    Because the CADS is nearing capacity and its authorized use is 
expiring on December 31, 2021, EPA's ocean disposal site designation 
studies were designed to determine whether this site or any other sites 
should be designated for long-term use.

IV. Disposal Site Description

    The IOSN is located in the Gulf of Maine, approximately 10.8 nmi 
east of Portsmouth, New Hampshire, 9.55 nmi southeast of Kittery, 
Maine, and 6.04 nmi northeast of Eastern Island, the closest of the 
Isles of Shoals. As described in Section 4 of the SMMP, the site is 
delineated as an 8,530 ft diameter circle on the seafloor with its 
center located at 70[deg] 26.995' W and 43[deg] 1.142' N. Water depths 
at the IOSN range from 295 ft on the western edge of the site to 328 ft 
on the eastern edge as the seafloor gradually slopes from west to east. 
The surficial sediments at the site are predominately soft, fine-
grained silts and clays. The seafloor within the site is generally a 
smooth, soft-textured surface with topographic highs present outside 
the western, northern, and southeastern, boundaries of the site.
    Three reference areas (REF-A, REF-B, and REF-C), to be used for 
site monitoring purposes, are defined as 820 ft radius circles located 
at 70[deg] 25.165' W, 42[deg] 59.282' N; 70[deg] 28.039' W, 43[deg] 
0.257' N; and 70[deg] 27.895' W, 43[deg] 2.280' N, respectively. The 
reference areas were selected based on a review of existing data and 
confirmed through a baseline survey to represent areas of the seafloor 
with similar bathymetric characteristics as the IOSN (see SMMP, p. 12).

V. Potentially Affected Entities

    Because the IOSN is offshore and in deep water, as described in the 
previous section, it is not expected to affect near-shore entities. 
Persons potentially affected by this action include those who seek or 
might seek permits or approval to dispose of dredged material into 
ocean waters pursuant to the MPRSA, 33 U.S.C. 1401 to 1445. This Final 
Rule is expected to be primarily of relevance to: (a) Persons, 
including organizations and government bodies, seeking MPRSA permits 
from the USACE to authorize the transport of dredged material for 
disposal into the ocean waters off the coast of southern Maine, New 
Hampshire, and northern Massachusetts; and (b) to the USACE itself for 
its own dredged material projects involving ocean disposal.
    Potentially affected entities and categories of entities that may 
seek to use the IOSN and would be subject to the Final Rule include:

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           Category examples of potentially affected entities
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Federal government USACE (Civil Works Projects), U.S. Navy, U.S. Coast
 Guard, and other federal agencies.
State, local, and tribal governments Governments owning and/or
 responsible for ports, harbors, and/or berths, government agencies
 requiring ocean disposal of dredged material associated with public
 works projects.
Industry and general public Port authorities, shipyards and marine
 repair facilities, marinas and boatyards, and berth owners.
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    This table is not intended to be comprehensive, but rather provides 
a guide for readers regarding the types of entities that could 
potentially be affected by the Final Rule. EPA notes that nothing in 
this Final Rule alters the jurisdiction or authority of EPA, the USACE, 
or the types of person regulated under the MPRSA.

VI. Summary of Public Comments and EPA's Response

    On September 18, 2019, EPA published a Proposed Rule in the Federal 
Register (84 FR 49075) to notify the public of EPA's proposal to 
designate the IOSN as an ODMDS and announcing the availability of the 
DEA supporting the proposal for a 30-day public comment period under 
Docket ID EPA-R01-OW-2019-0521. On October 9, 2019, EPA and the USACE 
held a public meeting in Kittery, Maine, to present the Proposed Rule 
and DEA, and to receive public comments. That public meeting and 
another post-comment period public meeting are further described in the 
National Environmental Policy Act (NEPA) subsection of the Compliance 
with Statutory and Regulatory Authorities section of this Final Rule. 
The comment period ended on October 18, 2019.
    EPA received fifteen comments on the Proposed Rule and DEA from the 
Department of Interior (DOI); the states of Maine and Massachusetts; 
the University of New Hampshire Shoals Marine Laboratory (SML); 
representatives of the fishing industry, including fin fish and 
lobster; environmental groups; and private citizens. EPA received 
comments both in support of, and in disagreement or raising concerns 
with, its proposed action, with some offering suggested improvements. 
There was some overlap among the comments received. The most 
significant comments received by EPA are summarized below:

 Support of designating IOSN (nine commenters)
 Concerns about possible roseate tern impacts (three 
commenters)
 Concerns about possible impacts to lobsters (four commenters)
 Concerns about possible impacts to whales, particularly the 
North Atlantic right whale, and their habitat (two commenters)
 Concerns about possible impacts to herring and cod spawning 
areas (three commenters)
 Request for an economic analysis and concerns about the 
economic impact to the fishing industry (three commenters)
 Requesting notification of haul routes for input and 
notification of timing of dredging to the fishing industry (five 
commenters)
 Requesting notification of haul routes and timing of dredging 
to the Isle of Shoals communities (one commenter)
 Requesting consultation with the Isle of Shoals communities 
about the site designation (one commenter)
 Concerns about impacts to the University of New Hampshire Isle 
of Shoals Marine Lab's reverse osmosis system (one commenter)
 Concern about general environmental assessment and potential 
impacts (one commenter)
 Request for more in-depth description of site selection 
process (one commenter)
 Concern over oil spills and request for an oil spill 
contingency plan for vessels transiting to the site (two commenters)
 Request for additional information about sediment travel and 
water column impacts (two commenters)
 Request for considerations of the general health of the 
seafloor (one commenter)
 Request for the site to be moved further offshore (two 
commenter)
 Concern about vessel transit to and from the site (two 
commenters)
 Request for a monitoring plan (one commenters)

    EPA has prepared a Response to Comments document with individual 
responses to each group of similar comments which, along with copies of 
each of the public comments, have been included as Appendix J and 
Appendix I, respectively, of the FEA, which is available on the website 
identified in the ADDRESSES section of this notice.
    In addition to preparing a Response to Comments document, EPA has 
addressed some of the public comments by (1) adding some new 
information about, and enhancing some of the descriptions of, marine 
resources in the vicinity of the IOSN; (2) enhancing the description of 
the location of the IOSN; and (3) adding a new site management 
protocol.
    As described above, several commenters, including DOI and the SML, 
noted that the roseate tern, a federally-listed endangered species, was 
not included in the description of endangered species that may use the 
area in which the IOSN is located in the DEA, and that therefore its 
potential presence was not considered in assessing the impact of 
designating the IOSN. EPA has since consulted with the USFWS on the 
roseate tern, in addition to other endangered and threatened species 
potentially using the area and has added information about the roseate 
tern and its potential use of this area to the FEA. As discussed in the 
ESA subsection of the Compliance with Statutory and Regulatory 
Authorities section of this Final Rule, the USFWS concurred with EPA's 
determination that the designation of the IOSN would not likely 
adversely impact any of the endangered and threatened species that may 
use the area of the IOSN.
    A couple of commenters, including the SML, stated that the presence 
of whales, and particularly North Atlantic right whales, in the 
vicinity of the IOSN was not adequately characterized in the DEA, and 
that therefore the impact of designating the IOSN on these species was 
not adequately considered in the DEA or Proposed Rule. EPA has since 
consulted with NMFS on right whales and other endangered and threatened 
species potentially using the area and has included additional 
information and analysis about the right whale and its potential use of 
this area in the FEA. As discussed in the ESA subsection of the 
Compliance with Statutory and Regulatory Authorities section of this 
Final Rule, NMFS concurred with EPA's determination that the 
designation of the IOSN would not likely adversely impact any of the 
endangered and threatened species that may use the area of the IOSN.
    One commenter noted that the description of the location of the 
proposed IOSN in the Proposed Rule and DEA did not reflect its 
proximity to the Isles of Shoals communities, mentioning only its 
distance from Portsmouth, NH. They also noted that the concerns of 
these communities should be considered in the decision-making process. 
EPA has now revised

[[Page 60374]]

the description of the IOSN in the Final Rule and FEA to include its 
distance from Portsmouth, NH, Kittery, ME, and Eastern Island, the 
closest of the Isles of Shoals. EPA and the USACE also held a public 
meeting after the public comment period on December 5, 2019, in 
Portsmouth, NH, specifically targeted to Isles of Shoals businesses and 
residents, to present general information about dredging and dredged 
material disposal, and answer clarifying questions.
    A number of commenters, including two state fisheries agencies and 
the Massachusetts Lobstermen's Association, requested notification to 
the fishing industry of scheduled dredging and dredged material haul 
routes to avoid conflicts. EPA has included a new Special Management 
Practice (SMP) in the SMMP that includes timeframes for notifications, 
submissions of brief descriptions of operations and maps of haul 
routes, and procedures for the notice of any changes to the haul route.

VII. Compliance With Statutory and Regulatory Authorities

    In designating the IOSN for the ocean disposal of suitable dredged 
material from harbors and navigation channels in southern Maine, New 
Hampshire, and northern Massachusetts, EPA has complied with the 
requirements of the MPRSA, CZMA, the Endangered Species Act (ESA), the 
Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), the 
National Historic Preservation Act (NHPA), and all other applicable 
legal requirements, as further described below. While it has been 
determined that EPA disposal site designation evaluations conducted 
under the MPRSA are ``functionally equivalent'' to NEPA reviews and are 
not subject to NEPA analysis requirements as a matter of law, EPA 
voluntarily uses NEPA procedures when evaluating the potential 
designation of ocean dumping sites. Those procedures also are described 
below. 63 FR 58045, 58046 (Oct. 29, 1988).

A. Marine Protection, Research, and Sanctuaries Act

    The MPRSA authorizes EPA to designate sites for permitted ocean 
disposal of dredged material ``that will mitigate adverse impact on the 
environment to the greatest extent practicable.'' 33 U.S.C. 1412(c). 
EPA regulations prescribe procedures for the designation of these 
sites. 40 CFR 228.4(e). EPA regulations also prescribe substantive 
guidelines for EPA's selection and management of disposal sites. See 
generally 40 CFR part 228. The regulations enumerate general and 
specific criteria for site selection, described in greater detail 
below. 40 CFR 228.5, 228.6.
    EPA promulgates final disposal site designations at 40 CFR 228.15. 
To finalize a site designation, EPA must develop a site management plan 
which includes specific details laid out by statute. 33 U.S.C. 1412 
(c)(4). Post-designation, EPA must, with USACE, manage and monitor 
disposal sites. See 40 CFR 228.3, 228.9.
    EPA's compliance with each of these statutory and regulatory 
requirements in designating IOSN is described in greater detail below.
1. Procedural Requirements
    Site designations for dredged material are to ``be made based on 
environmental studies of each site, regions adjacent to the site, and 
on historical knowledge of the impact of dredged material disposal on 
areas similar to such sites in physical, chemical, and biological 
characteristics.'' 40 CFR 228.4. Additionally, ``the results of a 
disposal site evaluation and/or designation study . . . will be 
presented in support of the site designation promulgation as an 
environmental assessment of the impact of the use of the site for 
disposal, and will be used in preparation of environmental impact 
statement [``EIS''] for each site where such a statement is required by 
EPA policy.'' 40 CFR 228.6. EPA policy does not, however, require the 
preparation of an EIS for all MPRSA site designations. As described 
above, EPA's site designation decisions are exempt from the 
requirements of NEPA, but pursuant to EPA's Voluntary NEPA Policy, the 
Agency nevertheless prepares NEPA analyses to support site designation 
decisions. See 63 FR 58045, 58046 (Oct. 29, 1988). EPA's Voluntary NEPA 
Policy does not mandate EISs for all site designations and rather 
leaves it to the EPA office in question to decide on a case-by-case 
basis what level of NEPA analysis--and EIS or an EA/FONSI--is 
appropriate. See id. (``EPA believes that decisions on preparing EISs 
for proposed ocean disposal sites should be made on a case-by-case 
basis.'')
    EPA has complied with all procedural requirements related to the 
publication of this Final Rule and associated FEA. EPA, with 
appropriate consultation with neighboring states and other agencies, 
completed an environmental assessment of the impact of designating the 
IOSN. Furthermore, the DEA, including the draft SMMP, and Proposed Rule 
were made available for public comment on September 18, 2019, through 
publication in the Federal Register and on the EPA Region 1 web page. 
84 FR 49075 (Oct. 18, 2019); https://www.epa.gov/ocean-dumping/isles-shoals-north-disposal-site. EPA has now prepared a thorough final 
environmental evaluation of the recommended alternative site to be 
designated, other alternatives sites, and other courses of action 
(including the ``no action'' option of not designating open-water 
disposal sites). This evaluation is presented in the FEA (and related 
documents) and summarized in this Final Rule. As described in the FEA, 
EPA has made a Finding of No Significant Impact (FONSI); thus, no 
environmental impact statement is required for this site designation.
2. Disposal Site Selection Criteria
    EPA regulations under the MPRSA identify four general criteria and 
11 specific criteria for evaluating locations for the potential 
designation of dredged material disposal sites. 40 CFR 228.5, 228.6. 
The evaluation of the IOSN with respect to the four general and 11 
specific criteria is discussed in detail in the Section 4 of the FEA 
and supporting documents and is summarized below.
General Criteria (40 CFR 228.5)
    As described in greater detail in the FEA, and summarized below, 
EPA has determined that the IOSN satisfies the four general criteria 
specified in 40 CFR 228.5.
    i. Sites should be selected to minimize interference with other 
activities in the marine environment and regions of heavy commercial or 
recreational navigation, particularly avoiding areas of existing 
fisheries or shellfisheries (40 CFR 228.5(a)).
    EPA's evaluation determined that use of the IOSN would cause 
minimal interference with the activities identified in the criterion. 
EPA and the USACE used information from a variety of sources to 
determine what activities might be interfered with by the disposal of 
dredged material at the IOSN. EPA considered recreational activities, 
commercial fishing areas, cultural or historically significant areas, 
commercial and recreational navigation, and existing scientific 
research activities. EPA and the USACE used Geographic Information 
System data to overlay the locations of various uses and natural 
resources of the marine environment on the disposal site location and 
surrounding areas (including their bathymetry). Analysis of these data 
indicated that use of the site would have minimal potential for 
interfering with other ongoing uses of the marine environment in and 
around

[[Page 60375]]

the IOSN, including lobster harvesting or fishing activities. While the 
site is located in an area where periodic fishing activity occurs and 
is within the vast Gulf of Maine spawning areas for cod and herring, it 
is not considered a unique fishing ground or highly significant fishery 
harvest area. Finally, the site is not located in shipping lanes or any 
other region of heavy commercial or recreational navigation. 
Furthermore, the site is located in an area where any other vessels 
could easily navigate around any disposal vessels at or near the site, 
and the significant water depths at the site mean that material 
disposed there will not interfere with navigation by extending up too 
high into the water column.
    ii. Sites should be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or to undetectable contaminant concentrations or effects before 
reaching any beach, shoreline, marine sanctuary, or known 
geographically limited fishery or shellfishery (40 CFR 228.5(b)).
    EPA's analysis concludes that the IOSN satisfies this criterion. 
First, the site will be used only for the disposal of dredged material 
determined to be suitable for ocean disposal by application of the 
MPRSA's ocean dumping criteria. See generally 33 U.S.C. 1413; 40 CFR 
part 227. These criteria include provisions related to water quality 
and account for initial mixing. See 40 CFR 227.4, 227.5(d), 227.6(b) 
and (c), 227.13(c), 227.27, and 227.29. Data evaluated during 
development of the FEA show that any temporary perturbations in water 
quality or other environmental conditions at the site during initial 
mixing from disposal operations will be limited to the immediate area 
of the site and will neither cause any significant environmental 
degradation at the site nor reach any beach, shoreline, marine 
sanctuary, or other important natural resource area. Second, the site 
is a significant distance from any beach, shoreline, marine sanctuary, 
or known geographically limited fishery or shellfishery.
    iii. The size of disposal sites should be limited in order to 
localize for identification and control any immediate adverse impacts, 
and to permit the implementation of effective monitoring and 
surveillance to prevent adverse long-range impacts. Size, 
configuration, and location are to be determined as part of the 
disposal site evaluation (40 CFR 228.5(d)).
    EPA has determined, based on the information presented in the FEA, 
that the IOSN alternative is sufficiently limited in size to allow for 
the identification and control of any immediate adverse impacts, and to 
permit the implementation of effective monitoring and surveillance to 
prevent adverse long-range impacts. The IOSN covers approximately 2.4 
nmi\2\ of seafloor, which is approximately 0.006% of the seafloor 
surface area of the Gulf of Maine. The long history of dredged material 
disposal site monitoring in New England, and specifically at active and 
historically used dredged material disposal sites elsewhere in the Gulf 
of Maine, provides ample evidence that surveillance and monitoring 
programs are effective at determining physical, chemical, and 
biological impacts at sites of a similar size to the alternative sites 
considered in this case.
    The IOSN is identified by specific coordinates spelled out in the 
Disposal Site Description section of this Final Rule and the FEA, and 
the use of precision navigation equipment in both dredged material 
disposal operations and monitoring efforts will enable accurate 
disposal operations and contribute to effective management and 
monitoring of the sites. Detailed plans for the management and 
monitoring of the IOSN are described in the SMMP (Appendix G of the 
FEA). Finally, as discussed herein and in the FEA, EPA has tailored the 
size of the IOSN based on site characteristics, such as bottom sediment 
type and bottom features, so that the area and boundaries of the sites 
are optimized for environmentally sound dredged material disposal 
operations.
    iv. EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites that have 
been historically used (40 CFR 228.5(e)).
    EPA has determined that designation of the IOSN is consistent with 
this criterion. EPA evaluated sites beyond the edge of the continental 
shelf and historical disposal sites in the Gulf of Maine as part of the 
alternative analysis conducted for the FEA. Potential disposal areas 
located off the continental shelf would be infeasible due to their very 
substantial distance offshore, which would render them impracticable 
for dredging projects from the area under evaluation (i.e., ZSF). The 
nearest point on the continental shelf/slope boundary to Portsmouth 
Harbor is more than 230 miles south, about 96 miles southeast of 
Nantucket. The distance to the slope due east is even greater at about 
270 miles. The haul distance to an off-shelf disposal site is therefore 
much greater than the average operational limit of the southern Maine, 
New Hampshire, and northern Massachusetts projects, making an off-shelf 
site infeasible for all projects. Additionally, the cost for evaluation 
and monitoring and the uncertainty of the environmental effects of off-
shelf placement makes that option impracticable and undesirable. 
Environmental concerns include increased risk of encountering 
endangered species during transit, increased fuel consumption and air 
emissions, substantially extending the duration of dredging projects 
(with their own, separate, impacts), and greater potential for 
accidents in transit that could lead to dredged material being dumped 
in unintended areas.
    USACE dredging and disposal records do not show evidence of dredged 
material ever having been placed at the area that encompasses the IOSN. 
The only sites within the ZSF that have been used historically are the 
former IOSH which, according to USACE records, was used from 1964 to 
1970, and the CADS, a USACE-selected MPRSA section 103 site located off 
Cape Arundel, Maine. However, neither the IOSH nor the CADS would meet 
the projected disposal needs because both are limited in their capacity 
to accept new material and both have seafloor areas that are 
incompatible with dredged material disposal due to the diversity of 
habitat and sediment types.
Specific Criteria (40 CFR 228.6)
    As described in greater detail in Section 4 of the FEA, and 
summarized below, EPA has determined that the IOSN satisfies the eleven 
specific criteria set out in 40 CFR 228.6.
     i. Geographical Position, Depth of Water, Bottom Topography and 
Distance From Coast (40 CFR 228.6(a)(1)).
    Based on analyses in the FEA, EPA has concluded that the geographic 
position (i.e., location), water depth, bottom topography (i.e., 
bathymetry), and distance from coastlines of the IOSN will facilitate 
containment of dredged material within site boundaries and reduce the 
likelihood of material being transported away from the site to adjacent 
seafloor areas. As described in the preceding Disposal Site Description 
section and in the above discussion of compliance with general criteria 
(iii) and (iv) (40 CFR 228.5(c) and (d)), the IOSN is located far 
enough from shore and in deep enough water to avoid adverse impacts to 
the coastline.
    The IOSN is a depositional area (i.e., an area characterized by low 
current

[[Page 60376]]

velocities so that it will tend to retain materials placed there). 
Therefore, dredged material disposed at the site is expected to stay in 
the site and not cause adverse effects to adjacent seafloor areas. The 
closest points of land to the IOSN are the Isles of Shoals, with 
Eastern Island and Appledore Islands being approximately 6.04 nmi and 
6.79 nmi respectively to the southwest of the IOSN. IOSN also is 
approximately 9.55 mni southeast of Sisters Point in Kittery, Maine and 
approximately 10.8 nmi west of Portsmouth, New Hampshire. The site is 
located in waters ranging from 295 to 328 feet deep. As discussed in 
the FEA, the IOSN is of a sufficient depth to allow the disposal of the 
amount of material that is projected over the 20-year planning horizon 
without exceeding any depth threshold for safe navigation over the 
site. As a result, any impacts from dredged material disposal will be 
short-term and localized and, assuming compliance with other regulatory 
requirements described elsewhere in this document, will not contribute 
to any significant long-term adverse impacts in and around the IOSN.
    ii. Location in Relation to Breeding, Spawning, Nursery, Feeding, 
or Passage Areas of Living Resources in Adult or Juvenile Phases (40 
CFR 228.6(a)(2)).
    EPA considered the IOSN in relation to breeding, spawning, nursery, 
feeding, and passage areas for adult and juvenile phases (i.e., life 
stages) of living resources in the Gulf of Maine. From this analysis, 
EPA concluded that, while disposal of suitable dredged material at the 
IOSN would cause some short-term, localized effects, overall, it would 
not cause adverse effects to the habitat functions and living resources 
specified in the above criterion. As previously noted, the IOSN covers 
approximately 2.4 nmi\2\ of seafloor, which is approximately 0.006% of 
the seafloor surface area of the Gulf of Maine.
    Generally, there are three primary ways that the transportation and 
disposal of dredged material could potentially adversely affect marine 
resources. First, disposal can cause physical impacts by injuring or 
burying less-mobile fish, shellfish, and benthic organisms, as well as 
the eggs and larvae of these less-mobile species. Second, tug and barge 
traffic transporting the dredged material to a disposal site could 
possibly collide or otherwise interfere with marine mammals and 
reptiles. Third, contaminants in the dredged material could potentially 
bioaccumulate through the food chain. However, EPA, the USACE, and 
other federal and state agencies that regulate dredging and dredged 
material disposal administer regulatory requirements designed to 
prevent these types of impacts from occurring. See, e.g., 40 CFR part 
227.
    Dredged material disposal will have some localized impacts to fish, 
shellfish, and benthic organisms, such as clams and worms, that are 
present at an ocean disposal site (or in the water column directly 
above the site) during a disposal event. The sediment plume may entrain 
and smother some fish in the water column, and may bury some fish, 
shellfish, and other marine organisms on the seafloor. It also may 
result in a short-term loss of forage habitat in the immediate disposal 
area, but recolonization of disposal mounds in the IOSN by benthic 
infauna is expected within one to three years after disposal, based on 
extensive monitoring at other disposal sites in New England. As 
discussed in the FEA (Section 7.5.2), over time, disposal mounds 
recover and develop abundant and diverse biological communities that 
are healthy and able to support species typically found in the ambient 
surroundings. Some organisms may burrow deeply into sediments, often up 
to 20 inches, and are more likely to survive a burial event.
    Regarding the potential for tug and barge impacts to endangered 
species, EPA complied with the ESA by consulting with the National 
Oceanic and Atmospheric Administration's (NOAA) National Marine 
Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (USFWS) 
on EPA's determinations that designation of the IOSN would not likely 
adversely affect federally-listed species under their respective 
jurisdictions or any habitat designated as critical for such species. 
EPA also coordinated with NMFS under the MSFCMA on potential impacts to 
essential fish habitat (EFH). Further details on these consultations 
are provided in the FEA and the sections below describing compliance 
with the ESA and MSFCMA.
    To further reduce potential environmental impacts associated with 
dredged material disposal, the dredged material from each proposed 
dredging project will be subjected to the MPRSA sediment testing 
requirements set forth at 40 CFR part 227 to determine its suitability 
for ocean disposal. Suitability for ocean disposal is determined by 
testing the proposed dredged material for toxicity and bioaccumulation 
to assess the potential risk to the marine environment and human 
health. If it is determined that the sediment is unsuitable for ocean 
disposal--that is, that it may unreasonably degrade the marine 
environment or endanger human health via the food chain--it cannot be 
disposed at disposal sites designated or selected under the MPRSA. See 
40 CFR 227.6. Therefore, EPA does not anticipate significant effects on 
marine organisms from the disposal of suitable dredged material at the 
IOSN.
    EPA recognizes that dredged material disposal causes some short-
term, localized adverse effects to marine organisms in the immediate 
vicinity of each disposal event. But because many organisms are likely 
to recover after any potential burial events, because dredged material 
disposal would be limited to suitable material, and because tugs and 
barges transporting dredged material take significant measures to avoid 
collisions with marine mammals, EPA concludes that designating the IOSN 
will not cause unacceptable or unreasonable adverse impacts to 
breeding, spawning, nursery, feeding, or passage areas of living 
resources in adult or juvenile phases.
    iii. Location in Relation to Beaches and Other Amenity Areas (40 
CFR 228.6(a)(3)).
    EPA's analysis concludes that the IOSN satisfies this criterion. 
The IOSN is located approximately 10.8 nmi east of Portsmouth, New 
Hampshire, 9.55 nmi southeast of Kittery, Maine and 6.04 nmi northeast 
of Eastern Island, the closest of the Isles of Shoals. The shoreward 
edge of the site is approximately 9 nmi from the nearest beaches in 
Rye, New Hampshire, and is located in waters ranging in depth from 295 
to 328 feet. The IOSN is far enough away from beaches, parks, wildlife 
refuges, and other areas of special concern to prevent adverse impacts 
to these amenities. Based on information presented in Section 6.3 of 
the FEA, and past monitoring of disposal at other ODMDS in New England, 
this distance is beyond any expected movement of dredged material due 
to tidal motion or currents. As noted above, any temporary 
perturbations in water quality or other environmental conditions at the 
site during initial mixing from disposal operations will be limited to 
the immediate area of the site and will not reach any beaches, parks, 
wildlife refuges, or other areas of special concern.
    Thus, EPA does not anticipate that the use of the IOSN would cause 
any adverse impacts to beaches or other amenity areas.
    iv. Types and Quantities of Wastes Proposed To Be Disposed of, and 
Proposed Methods of Release, Including Methods of Packing the Waste, if 
Any (40 CFR228.6(a)(4)).
    Only suitable dredged material that meets the Ocean Dumping 
Criteria in 40 CFR 220-228 and receives a permit or

[[Page 60377]]

is otherwise authorized for dumping by the USACE, with which EPA 
concurs, will be disposed in the IOSN.
    Dredged material dumped at the site is anticipated to be 
transported to the IOSN by either government or private contractor 
hopper dredges or scows with capacities ranging from 800 to 6,000 cubic 
yards (cy).
    The volume of sediment to be dredged from federal navigation 
projects and non-federal marinas and boatyards in the southern Maine, 
New Hampshire, and northern Massachusetts region varies greatly from 
year to year depending upon need and funding. However, as previously 
discussed, and based on the dredging history of this region, 
maintaining and improving these navigational features is projected to 
generate approximately 1.5 million cy of dredged material over the next 
20 years. Some of the sediments will be beneficially used, like sand 
that can be used for beach nourishment, and some will be unsuitable for 
ocean disposal and need to be disposed of through alternative means, 
but the remainder of the material that is suitable for ocean disposal 
can be disposed of in the IOSN. Most of the dredged material that would 
be disposed of in the IOSN would originate from the dredging of 
navigation channels and harbors in the region and would consist 
primarily of fine-grained marine sediments that have been transported 
into these areas by tidal currents, riverine deposition, and upland 
erosion. The fine-grained material undergoes rigorous testing to 
confirm that it is suitable for unconfined ocean placement. The IOSN 
has been sized to accommodate the quantity of material expected to be 
placed there over the 20-year planning horizon. For all these reasons, 
no significant adverse impacts are expected to be associated with the 
types and quantities of dredged material that may be disposed at the 
IOSN.
    v. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5)).
    Monitoring for baseline conditions has already been conducted at 
the IOSN and adjacent areas by the USACE Disposal Area Monitoring 
System (DAMOS), and it is anticipated that monitoring and other 
surveillance activities will continue to be feasible at the IOSN in the 
future. Monitoring of EPA-designated ocean disposal sites is conducted 
according to the approved SMMP. The current approved SMMP for the IOSN 
is included as Appendix G of the FEA. EPA must schedule the SMMP for 
review and revision at least every ten years. 33 U.S.C. 1412. As a 
depositional site that will retain the dredged material placed there, 
the IOSN is conducive to the type of monitoring most commonly conducted 
at dredged material disposal sites, including side-scan sonar, sediment 
profile imaging, and sediment grab sampling.
    vi. Dispersal, Horizontal Transport and Vertical Mixing 
Characteristics of the Area, Including Prevailing Current Direction and 
Velocity, if Any (40 CFR 228.6(a)(6)).
    The IOSN site meets this criterion. The IOSN is located in open 
ocean with water depths ranging from approximately 295 to 328 feet. 
Water circulation in the vicinity of the IOSN is strongly influenced by 
the counterclockwise flow, or gyre, normally occurring in the Gulf of 
Maine. The circulation of the Gulf consists of two circular gyres, one 
counterclockwise within the interior of the Gulf, and the second, 
clockwise over Georges Bank. Maine coastal waters are included as the 
western portion of the counterclockwise gyre within the Gulf. Current 
patterns in the vicinity of the IOSN are typified by coastal-parallel, 
non-tidal southerly drift currents generated by the overall circulation 
of the Gulf of Maine.
    The fine-grained sediments that dominate the area of the IOSN 
indicate that the site is in a depositional area. Consequently, any 
material dispose of at the IOSN would likely remain within the site and 
not be significantly affected or transported away from the site by 
currents.
    vii. Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (Including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    USACE dredging and disposal records and site monitoring do not show 
any evidence of dredged material having been disposed of within the 
current site boundaries of the IOSN. Dredged material from the southern 
Maine, New Hampshire, and northern Massachusetts coastal region was 
historically disposed of at either the CADS or the former, historically 
used IOSH, which was used from 1964 to 1970.
    In general, results from decades of monitoring of current and 
historically used ODMDS in the New England region indicate that the 
disposal of dredged material found suitable for ocean disposal does not 
significantly alter the long-term functions and values of seafloor 
bottom as potential habitat for biological communities or contribute to 
long-term changes in water quality or water circulation at the disposal 
sites. EPA expects this to also be the case for the IOSN.
    viii. Interference with Shipping, Fishing, Recreation, Mineral 
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special 
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR 
228.6(a)(8)).
    In evaluating whether disposal activity at the site could interfere 
with shipping, fishing, recreation, mineral extraction, desalination, 
fish or shellfish culture, areas of scientific importance, and other 
legitimate uses of the ocean, EPA considered both the effects of 
disposing dredged material within the IOSN, and any effects from vessel 
traffic associated with transporting the dredged material to the 
disposal site. From this evaluation, EPA concluded there would be no 
unacceptable or unreasonable adverse effects on the considerations 
noted in this criterion. Some of the factors listed in this criterion 
have already been discussed above due to the overlap of this criterion 
with aspects of certain other criteria. Nevertheless, EPA will address 
each point below.
    EPA does not anticipate conflicts with commercial navigation at the 
IOSN. The Portsmouth Pilots and the USACE discussed the IOSN disposal 
site location and its anticipated use with respect to navigation 
transit impacts (as discussed in more detail in Section 4.4.1 of the 
FEA). Vessels transiting to and from Portsmouth Harbor from the south 
and southeast follow a route inshore of the Isles of Shoals, which will 
avoid the area of the IOSN. Vessels approaching or departing to and 
from the east and northeast (toward Maine and Canada) do cross the 
general area of the IOSN disposal site. The pilots stated that 
conflicts between dredged material disposal operations and shipping for 
large and small projects can be avoided, however, by adequate notice to 
mariners of disposal activities and frequent marine communication 
between the disposal tugs and the Portsmouth Pilots. Given the open-
water conditions around the IOSN and the relative infrequency of 
dredged material disposal operations, EPA concludes that any conflicts 
with vessels traveling in the vicinity of the IOSN should be easily 
managed in a safe, efficient manner.
    EPA also carefully evaluated the potential effects of designating 
the IOSN on commercial and recreational fishing for both finfish and 
shellfish (including lobster) and concluded that there would be no 
unreasonable or unacceptable adverse effects. As discussed above in 
relation to other site evaluation criteria, disposal of dredged 
material will only have short-term, incidental, and insignificant 
effects on organisms in the IOSN and no appreciable effects beyond the 
site. Because dredged material disposal at other ODMDS in New England 
has not been found to have

[[Page 60378]]

significant adverse effects on fishing, the similar projected levels of 
future disposal activities at the IOSN are not expected to have any 
significant adverse effects.
    The four main reasons that EPA concluded that no unacceptable 
adverse effects would occur from disposal of dredged material at the 
proposed site are discussed below. First, EPA has concluded that any 
contaminants in material permitted for ocean disposal--having satisfied 
the dredged material criteria in the regulations that restrict any 
toxicity and bioaccumulation--will not cause any significant adverse 
effects to fish, shellfish, or other aquatic organisms. Because the 
IOSN is a depositional site, dredged material disposed within the site 
is expected to remain there.
    Second, the IOSN does not encompass any especially important, 
sensitive, or limited habitat for the Gulf of Maine's fish and 
shellfish. While the site is within the greater Gulf of Maine cod and 
herring spawning habitat, as previously stated, the IOSN only covers 
approximately 2.4 nmi\2\ of seafloor, which is approximately 0.006% of 
the total seafloor surface area of the Gulf of Maine. Numerous studies 
and data reviewed by EPA and the USACE indicate that there is low 
potential for any future incremental risk from the ocean disposal of 
dredged sediments at the IOSN in either the long- or short-term.
    Third, while EPA found that a small number of demersal fish (e.g., 
winter flounder), shellfish (e.g., clams and lobsters), benthic 
organisms (e.g., worms), and zooplankton and phytoplankton could be 
lost due to the physical effects of disposal (e.g., burial of organisms 
on the seafloor by dredged material and entrainment of plankton in the 
water column by dredged material upon its release from a disposal 
barge), EPA also determined that these minor, temporary adverse effects 
would be neither unreasonable nor unacceptable. This determination was 
based on EPA's conclusion that the numbers of organisms potentially 
affected represent only a minuscule percentage of those in the Gulf of 
Maine, and findings from past monitoring in the region consistently 
show the rapid recovery of the benthic community in dredged material 
disposal sites.
    Fourth, EPA has determined that vessel traffic associated with 
dredged material disposal will not have any unreasonable or 
unacceptable adverse effects on fishing. The USACE has agreed to notify 
state fisheries management agencies within a prescribed timeframe 
before the commencement of dredging and disposal activities at the 
IOSN. An SMP in this regard has been incorporated into the SMMP. The 
SMP includes timeframes for notifications, submissions of brief 
descriptions of operations and maps of haul routes, and procedures for 
the notice of any changes to the haul route. The USACE will include 
these conditions in individual permits or authorizations on a project-
by-project basis.
    There currently are no mineral extraction activities or 
desalinization facilities in the Gulf of Maine region with which 
disposal activity could potentially interfere. No finfish aquaculture 
currently takes place in the southeastern Gulf of Maine. Finally, the 
IOSN is not in an area of special scientific importance. Accordingly, 
disposing of dredged material at the IOSN will not interfere with any 
of the activities described in this criterion or other legitimate uses 
of this part of the Gulf of Maine.
    In addition, the designation of the IOSN site has been determined 
by the EPA to be consistent with the Maine, New Hampshire, and 
Massachusetts coastal zone management programs, as discussed in the 
CZMA section below (see also Appendix H of the FEA). The Maine, New 
Hampshire and Massachusetts coastal zone management programs have 
concurred with EPA's determinations.
    ix. The Existing Water Quality and Ecology of the Sites as 
Determined by Available Data or by Trend Assessment or Baseline Surveys 
(40 CFR 228.6(a)(9)).
    EPA's analysis of existing water quality and ecological conditions 
at the site, which was based on available data, trend assessments, and 
baseline surveys, indicates that use of the IOSN will cause no 
unacceptable or unreasonable adverse environmental effects. 
Considerations related to water quality and various ecological factors 
(e.g., sediment quality, benthic organisms, fish and shellfish) have 
already been discussed above in relation to other site selection 
criteria and are discussed in detail in the FEA and supporting 
documents. In considering this criterion, EPA considered existing water 
quality and sediment quality data collected in the Gulf of Maine, 
including from the USACE's Disposal Area Monitoring System (DAMOS), as 
well as water quality data from EPA's coastal nutrient criteria and 
trend monitoring efforts. As discussed herein, EPA has determined that 
disposal of suitable dredged material at the IOSN should not cause any 
significant adverse environmental effects to water quality or to 
ecological conditions at the site. EPA and the USACE have prepared an 
SMMP for the IOSN to guide future management and monitoring of the 
site.
    x. Potentiality for the Development or Recruitment of Nuisance 
Species in the Disposal Sites (40 CFR 228.6(a)(10)).
    Monitoring at disposal sites elsewhere in the Gulf of Maine over 
the past 35 years has shown no recruitment of nuisance (invasive, non-
native) species and no such adverse effects are expected to occur at 
the IOSN in the future. EPA and the USACE will continue to monitor EPA-
designated sites in the Gulf of Maine under their respective SMMPs, 
which include a ``management focus'' on ``changes in composition and 
numbers of pelagic, demersal, or benthic biota at or near the disposal 
sites'' (SMMP, Appendix G of the FEA).
    In addition, source materials from projects in southern Maine, New 
Hampshire, and northern Massachusetts to be dredged and transported to 
the disposal site historically have been classified as marine silts and 
clays, which are similar to the sediments found at the IOSN site. As 
previously discussed, any material proposed for ocean disposal at the 
IOSN site would be subject to an evaluation of sediment quality. 
Therefore, it is highly unlikely that any nuisance species could be 
established at the proposed disposal site since habitat (i.e., sediment 
type) or contaminant levels are unlikely to change over the long-term 
use of the site.
    xi. Existence at or in Close Proximity to the Sites of Any 
Significant Natural or Cultural Feature of Historical Importance (40 
CFR 228.6(a)(11)).
    There are no natural features of historical importance within the 
boundaries of the IOSN, and the cultural resources that would have the 
greatest potential for being impacted in this area would be shipwrecks. 
As discussed in Section 6.7 of the FEA, side-scan sonar of the IOSN was 
conducted and no potential shipwrecks or other cultural feature were 
noted within its boundaries. The cultural resource literature search 
conducted for the proposed IOSN area did not identify any shipwrecks in 
the vicinity. While undiscovered shipwrecks could occur in the area, it 
is unlikely based on the results of the side-scan survey of the area. 
As discussed in the NHPA section below, EPA consulted with the state 
historic preservation offices (SHPO) for Maine and New Hampshire and 
they confirmed these findings. Based on this information, it is 
unlikely that any significant cultural resources will be affected from 
the designation and use of the disposal site.

[[Page 60379]]

    In addition, Jeffery's Ledge, located to the east of the IOSN, is 
an important feeding ground for humpback whales and North Atlantic 
right whales in the summer and fall months and serves as a prime 
recreational whale watching area. No impacts to this area are expected 
based on disposal of suitable dredged material at the IOSN. However, 
procedures outlined in the SMMP will be followed to ensure whales are 
protected.
3. Disposal Site Management and Monitoring (40 CFR 228.3, 228.7, 228.8 
and 228.9)
    In accordance with Section 102(c)(3) of the MPRSA, EPA, in 
conjunction with the USACE, has developed a site management and 
monitoring plan for the IOSN (the ``SMMP'') which includes a baseline 
assessment of conditions at the site, a monitoring program for the 
site, special management conditions necessary to protect the 
environment, consideration of the quantity and quality of material to 
be disposed at the site, consideration of the long-term plan for the 
site (including closure), and a schedule for review and revision of the 
plan. 33 U.S.C. 1412(c). EPA Region 1 is responsible for managing the 
IOSN pursuant to this plan and works with the USACE New England 
Division to do so. See 40 CFR 228.3.
    The monitoring program ``may include baseline or trend assessment 
surveys by EPA'' or other entities. 40 CFR 228.9. It may also 
incorporate ``data collected from the use of automatic sampling buoys, 
satellites or in situ platforms, and from experimental programs.'' Id. 
Further, ``EPA will require the full participation of permittees, and 
encourage the full participation of other Federal and State and local 
agencies in the development and implementation of disposal site 
monitoring programs.'' Id. EPA may limit the ``times or rates'' of 
dumping ``so that the limits for the site as specified in the site 
designation are not exceeded.'' 40 CFR 228.8. See also 33 U.S.C. 
1412(c)(1) and (2).
    In accordance with these statutory and regulatory requirements, EPA 
and the USACE have developed an SMMP for the IOSN that includes 
provisions that will be included in USACE permit and authorizations to 
ensure site management practices are protective of the marine 
environment and public health. The SMMP, available at Appendix G to the 
FEA, describes disposal site management practices that are generally 
applicable to all EPA-designated ODMDS, as well as site-specific 
Special Management Practices. It describes the tiered monitoring 
approach that is used for all ODMDS in New England that assesses 
whether disposal activities are occurring in compliance with permit and 
site restrictions; supports evaluation of short- and long-term fate of 
material based on MPRSA site impact evaluation criteria; and supports 
assessment of potential significant adverse environmental impacts from 
dredged material disposal at the site.

B. National Environmental Policy Act

    NEPA requires the public analysis of the potential environmental 
effects of proposed federal agency actions and reasonable alternative 
courses of action to ensure that these effects, and the differences in 
effects among the different alternatives, are understood. See generally 
42 U.S.C. 4321 et seq. The goal of this analysis is to ensure high 
quality, informed, and transparent decision-making, to facilitate 
avoiding or minimizing any adverse effects of proposed actions, and to 
help restore and enhance environmental quality. See generally 40 CFR 
6.100(a), 1500.1(c) and 1500.2(d)-(f). NEPA requires coordination with 
other federal and state agencies and public involvement throughout the 
decision-making process. See 40 CFR 6.400(a), 1503, 1501.7, and 1506.6.
    EPA disposal site designation evaluations conducted under the MPRSA 
have been determined to be ``functionally equivalent'' to NEPA reviews, 
so that they are not subject to NEPA analysis requirements as a matter 
of law. Nevertheless, as a matter of policy, EPA voluntarily uses NEPA 
procedures when evaluating the potential designation of ocean dumping 
sites. 63 FR 58045, 58046 (October 29, 1998) (``EPA voluntarily will 
follow NEPA procedures in ocean disposal site designations under MPRSA 
and these procedures provide for consultation with the states'' and EPA 
``believes that decisions on preparing EISs for proposed ocean disposal 
sites should be made on a case-by-case basis.'') Furthermore, EPA has 
clarified that ``[t]he voluntary preparation of [NEPA] documents in no 
way legally subjects the Agency to NEPA's requirements.'' Id.
    Consistent with its voluntary NEPA policy, EPA has undertaken a 
NEPA analysis to support its decision-making process for the 
designation of the IOSN. In this case, EPA decided to prepare an 
Environmental Assessment, which is done for proposed actions when the 
significance of the environmental impact is not clearly established. 
Upon completion of the FEA, EPA also made a Finding of No Significant 
Impact, described below.
1. Final Environmental Assessment and Finding of No Significant Impact
    The FEA evaluates whether an ODMDS should be designated to serve 
the southern Maine, New Hampshire, and southern Maine coastal region. 
The FEA describes the purpose and need for any such designation, and 
evaluates several alternatives to this action, including the option of 
``no action'' (i.e., no designation). Based on this evaluation, EPA 
concludes that designation of the IOSN under the MPRSA is the preferred 
alternative. EPA also is issuing a FONSI with the FEA that presents the 
reasons why the agency projects that no significant environmental 
impacts will occur from implementation of the action.
    As stated in the Purpose and Need section, the purpose of this 
designation is to provide a long-term, ODMDS as a potential option for 
the future disposal of suitable dredged material. The action is 
necessary because periodic dredging and dredged material disposal is 
unavoidably necessary to maintain safe navigation and marine commerce 
in ports and harbors in the southern Maine, New Hampshire, and northern 
Massachusetts coastal region. As previously noted, dredging in southern 
Maine, New Hampshire, and northern Massachusetts is projected to 
generate approximately 1.5 mcy of dredged material over the next 20 
years.
    EPA evaluated potential alternatives to ocean disposal in the 
southern Maine, New Hampshire, and northern Massachusetts coastal 
region but determined that none were sufficient to meet the projected 
regional dredging needs. In accordance with EPA regulations, use of 
alternatives to ocean disposal will be required for dredged material 
management when they provide a practicable, environmentally preferable 
option for the dredged material from any particular disposal project. 
40 CFR 227.16. When no such practicable alternatives exist, however, 
EPA's designation of the IOSN will provide an ocean disposal site as a 
potential management option for dredged material regulated under the 
MPRSA that has been tested and determined to be environmentally 
suitable for ocean disposal. Sediments found to be unsuitable for ocean 
disposal will not be authorized for placement at a disposal site 
designated by EPA under the MPRSA and will have to be managed in other 
ways.

[[Page 60380]]

2. Alternatives Analysis
    EPA analyzed alternatives for the management of dredged material 
from navigation channels and harbors in the southern Maine, New 
Hampshire, and northern Massachusetts coastal region. This analysis 
evaluated several different potential alternatives, including ocean 
disposal sites in the ZSF (described in the Purpose and Need section), 
upland disposal, beneficial uses, and the no-action alternative. From 
this analysis, EPA determined that at least one ocean disposal site, 
the IOSN, was necessary to provide sufficient capacity to meet the 
long-term dredged material disposal needs of the region in the event 
that, as expected, practicable alternatives to ocean disposal are not 
available for all the material.
    EPA's initial screening of alternatives, which involved input from 
other federal and state agencies, led to the determination that the 
ocean disposal sites were the most environmentally sound, cost-
effective, and operationally feasible options for the full quantity of 
dredged material expected to be found suitable for ocean disposal over 
the 20-year planning horizon. Regardless of this conclusion, in 
practice, each individual dredging project will be analyzed on a case-
specific basis and ocean disposal of dredged material at a designated 
site would only be permitted or authorized when there is a need for 
such disposal (i.e., there are no practicable, environmentally 
preferable alternatives). See 40 CFR 227.2(a)(1), 227.16(b).
3. Public Involvement
    EPA released the DEA, titled ``Draft Environmental Assessment and 
Evaluation Study for Designation of an Ocean Dredged Material Disposal 
Site to serve the Southern Maine, New Hampshire, and Northern 
Massachusetts Region,'' on September 18, 2019, for a 30-day public 
comment period. 84 FR 49075 (Sep. 18, 2019). EPA held one public 
meeting during the public comment period on October 9, at 6 p.m. in 
Kittery, Maine, at which EPA and the USACE made a presentation on the 
Proposed Rule and DEA and received public comments. EPA also received 
subsequent written comments both in support of and expressing concerns 
about EPA's proposed action as described in the DEA and Proposed Rule. 
Many commenters also asked questions or offered suggestions. EPA made 
clarifying statements during the public meeting but did not 
substantively respond to public comments at that time.
    EPA and the USACE also held a public meeting after the public 
comment period on December 5, 2019, in Portsmouth, New Hampshire, to 
present general information about dredging and dredged material 
disposal and answer clarifying questions, but again did not 
substantively respond to specific comments about the IOSN. EPA did not 
receive any new comments on the Proposed Rule and DEA at this meeting. 
Appendix I of the FEA includes the public comments EPA received on the 
DEA and Proposed Rule. Appendix J of the FEA provides a summary of 
those comments and EPA's responses to those comments. EPA also has 
summarized the more significant comments in Section VI of the preamble 
to this Final Rule.
4. Interagency Coordination
    EPA coordinated with a wide range of federal and state agencies 
throughout the development of the Final Rule and FEA. EPA worked 
closely with the USACE because of its knowledge concerning the region's 
dredging needs, its technical expertise in monitoring dredged material 
disposal sites and assessing the environmental effects of dredging and 
dredged material disposal, and its history in the permitting of 
dredging and dredged material disposal in the Gulf of Maine and 
elsewhere. To take advantage of additional expertise held by other 
entities, and to promote strong inter-agency communications, EPA also 
consulted and/or coordinated with the USFWS; the NOAA NMFS; the New 
Hampshire Department of Environmental Services (NH DES); the New 
Hampshire Department of Fish and Game; the Maine Department of 
Environmental Protection; the Maine Department of Marine Resources (ME 
DMR); the Maine Geological Service; the Massachusetts Division of 
Marine Fisheries; and the Massachusetts Office of Coastal Zone 
Management (MCZM).
    EPA communicated with the cooperating federal and state agencies 
throughout the site designation process to keep them apprised of 
progress on the project and to solicit input. EPA conducted two IOSN 
interagency meetings, in May 2016 and December 2018, to solicit data 
sources and concerns, to review progress, and to receive feedback on 
the proposed action. The proposed action also was discussed with 
federal and state agencies at New England Regional Dredging Team 
meetings in February 2019, June 2019, September 2019, February 2020, 
and June 2020, and at Federal Mid-Level Managers meetings (EPA, USACE, 
NOAA, and USFWS) in June 2018, December 2018, November 2019, and May 
2020. Lastly, it has consistently been an agenda item at the Maine, New 
Hampshire and Massachusetts state dredging team meetings since 2016. 
EPA provided the Proposed Rule and DEA for formal comment by 
cooperating agencies and EPA has since been in regular contact with 
representatives of these agencies throughout the development of the 
Final Rule and FEA.
5. Tribal Consultation
    On July 5, 2019, EPA sent letters to all federally-recognized 
tribes in Maine offering to consult with them on the proposed 
designation of the IOSN. The Houlton Band of Maliseet Indians responded 
with a request for government-to-government consultation, which 
occurred via teleconference on August 13, 2019. EPA also presented the 
project on an EPA Regional Tribal Operations Committee teleconference, 
which includes New England Tribal environmental directors, on August 
14, 2019. Comments provided during the consultation and RTOC 
teleconference were incorporated in the Proposed Rule and DEA prior to 
their release for public comment on September 18, 2020.

C. Coastal Zone Management Act

    The CZMA, 16 U.S.C. 1451, et seq., authorizes states to establish 
coastal zone management programs to develop and enforce policies to 
protect their coastal resources and promote uses of those resources 
that are desired by the state. These coastal zone management programs 
must be approved by the NOAA Office of Coastal Resources Management, 
which is responsible for administering the CZMA. Federal agencies must 
provide relevant states with a determination that each federal agency 
activity, whether taking place within or outside the coastal zone, that 
affects any land or water use or natural resource of the state's 
coastal zone, will be carried out in a manner consistent to the maximum 
extent practicable with the enforceable policies of the state's 
approved coastal zone management program. 16 U.S.C. 1456. EPA's 
compliance with the CZMA is described below.
    Based on the evaluations presented in the FEA and supporting 
documents, and a review of the federally approved New Hampshire, Maine, 
and Massachusetts coastal zone programs and policies, EPA determined 
that designation of the IOSN for ocean dredged material disposal under 
the MPRSA is fully consistent or consistent to the maximum extent 
practicable with the enforceable policies of the coastal zone 
management

[[Page 60381]]

programs of New Hampshire, Maine, and Massachusetts. EPA provided a 
written determination to that effect to the NH DES Coastal Program, the 
ME DMR Coastal Program, and MCZM within the statutory and regulatory 
mandated timeframes. All three state coastal zone management programs 
concurred with EPA's determination that the designation of the IOSN is 
consistent with the states' enforceable program policies (Appendix H of 
the FEA).
    In EPA's view, there are several broad reasons why designation of 
the IOSN is consistent with the applicable, enforceable policies of the 
states' coastal zone programs. First, the designation is not expected 
to cause any significant adverse impacts to the marine environment, 
coastal resources, or uses of the coastal zone. Indeed, EPA expects the 
designation to benefit uses involving navigation and berthing of 
vessels by facilitating needed dredging, and to benefit the environment 
by concentrating any ocean disposal of dredged material at a single, 
environmentally appropriate site designated by EPA and subject to the 
previously described SMMP. Second, designation of the site does not 
actually authorize the disposal of any dredged material at the site, 
because any proposal to dispose dredged material from a particular 
project at a designated site will be subject to a case-specific 
evaluation, including CZMA review, and be allowed only if: (a) The 
material satisfies the requirements of the MPRSA, Ocean Dumping 
Regulations, and other legal requirements, such as those under the 
CZMA; and (b) no practicable alternative method of management with less 
adverse environmental impact can be identified. Third, the designated 
disposal site will be managed and monitored pursuant to an SMMP and if 
adverse impacts are identified, use of the site will be modified to 
reduce or eliminate those impacts. Such modification could further 
restrict, or even terminate, use of the site, if appropriate. See 40 
CFR 228.3, 228.11. In addition, the IOSN is located outside the coastal 
zone of all three states, so disposal of dredged material at the site 
will not directly affect the coastal zone of any of the three states. 
That said, designation of the IOSN could indirectly affect the states' 
coastal zones because it could facilitate dredging projects within 
these coastal zones and result in vessel trips through these coastal 
zones to take dredged material out to the site. Nevertheless, these 
indirect impacts should not be problematic because dredging projects 
themselves will have to satisfy federal and state permitting 
requirements, including CZMA review, and preventing such dredging 
projects could harm public use of the coastal zone for vessel 
navigation and berthing. Moreover, as discussed in the record for this 
decision, vessels taking dredged material to the IOSN should be able to 
safely navigate to the site. Indeed, without the IOSN, vessels would 
still have to haul dredged material to other sites, or dredging 
projects would be cancelled, which would, itself, result in reduced 
navigational safety and the risk of accidents.

D. Endangered Species Act

    Under section 7(a)(2) of the ESA, 16 U.S.C. 1536(a)(2), federal 
agencies are required to ensure that their actions are ``not likely to 
jeopardize the continued existence of any endangered species or result 
in the destruction or adverse modification of habitat of such species, 
which is determined to be critical.'' Depending on the species 
involved, a federal agency is required to consult with NMFS and/or 
USFWS if the agency's action ``may affect'' an endangered or threatened 
species or its critical habitat. 50 CFR 402.14(a). Thus, the ESA 
requires consultation with NMFS and/or USFWS to address potential 
impacts to threatened and endangered species that may occur at the 
dredged material disposal site from dredged material disposal there.
    To comply with the ESA, EPA coordinated and consulted with NMFS and 
USFWS (Appendix H of the FEA). EPA determined that the designation of 
the IOSN is not likely to result in adverse impacts to threatened or 
endangered species, species of concern, or designated critical habitat. 
In addition, the USACE will, as appropriate, consult with the NMFS and 
USFWS for individual permitted projects and federal navigation projects 
to further ensure that they will satisfy the ESA.
    Based on its knowledge, expertise and EPA's effects analysis, NMFS 
concurred with EPA's determination that the site designation is not 
likely to adversely affect any NMFS ESA-listed species or designated 
critical habitat and therefore no further consultation pursuant to 
Section 7 of the ESA is required. USFWS also concurred with EPA's 
determination that the designation of IOSN is not likely to adversely 
affect USFWS ESA-listed species, specifically the roseate tern. Its 
concurrence was based on that fact that: (1) Disposal effects from 
turbidity, sedimentation and changes in water quality will be of short 
duration and limited to a negligible portion of the roseate tern's 
foraging habitat in the vicinity of Seavey Island; (2) disposal events 
would happen infrequently and the likelihood of disposal operations 
coinciding with roseate tern presence is discountable; and (3) EPA's 
designation of IOSN does not authorize any specific disposal events and 
such specific disposal events, and their associated effects, would be 
addressed through permitting by the USACE (Appendix H of FEA).

E. Magnuson-Stevens Fishery Conservation and Management Act

    The MSFCMA, 16 U.S.C. 1801 et seq., requires the designation of 
essential fish habitat (EFH) for federally managed species of fish and 
shellfish. The goal of these provisions is to ensure that EFH is not 
adversely impacted by fishing or other human activities, including 
dredged material disposal, and to further the enhancement of these 
habitats, thereby protecting both ecosystem health and the fisheries 
industries. Pursuant to section 305(b)(2) of the MSFCMA, federal 
agencies are required to consult with NMFS regarding any action they 
authorize, fund, or undertake that may adversely affect EFH. An adverse 
effect has been defined by the Act as, ``[a]ny impact which reduces the 
quality and/or quantity of EFH [and] may include direct (e.g., 
contamination or physical disruption), indirect (e.g., loss of prey, 
reduction in species' fecundity), site-specific or habitat-wide 
impacts, including individual, cumulative, or synergistic consequences 
of actions.'' 50 CFR 600.810(a).
    EPA has consulted with NMFS to ensure compliance with the EFH 
provisions of the MSFCMA and has prepared an essential fish habitat 
assessment in compliance with the Act. NMFS concurred with EPA's 
assessment, determined that adverse effects to federally-managed 
species and EFH will be minimal and therefore had no conservation 
recommendations to provide (Appendix H of the FEA).

F. National Historic Preservation Act

    The NHPA, 54 U.S.C. 300101 et seq (formerly 16 U.S.C. 470 to 470a-
2), requires federal agencies to take into account the effect of their 
actions on districts, sites, buildings, structures, or objects, 
included in, or eligible for inclusion in, the National Register of 
Historical Places. EPA submitted a consultation letter to the New 
Hampshire and Maine State Historic Preservation Offices (SHPO) on July 
27, 2020. Both the Maine and New Hampshire SHPOs provided a letter of 
concurrence with EPA's determination

[[Page 60382]]

that no historic properties (architectural or archaeological) will be 
affected by this site designation (Appendix H of FEA).

VIII. Supporting Documents

1. EPA Region 1/USACE NAE. 2020. Final Environmental Assessment and 
Evaluation Study for Designation of an Ocean Dredged Material 
Disposal Site for the Southern Maine, New Hampshire, and Northern 
Massachusetts Coastal Region. U.S. Environmental Protection Agency, 
Region 1, Boston, MA and U.S. Army Corps of Engineers, New England 
District, Concord, MA. September 2020.
2. EPA Region 1/USACE NAE. 2004. Regional Implementation Manual for 
the Evaluation of Dredged Material Proposed for Disposal in New 
England Waters. U.S. Environmental Protection Agency, Region 1, 
Boston, MA, and U.S. Army Corps of Engineers, New England District, 
Concord, MA. April 2004.
3. EPA/USACE. 1991. Evaluation of Dredged Material Proposed for 
Ocean Disposal-Testing Manual. U.S. Environmental Protection Agency, 
Washington, DC, and U.S. Army Corps of Engineers, Washington, DC. 
EPA-503/8-91/001. February 1991.
4. EPA/USACE. 1984. General Approach to Designation Studies for 
Ocean Dredged Material Disposal Sites. U.S. Environmental Protection 
Agency and U.S. Army Corps of Engineers, Washington, DC. 1984.
5. EPA. 1986. Ocean Dumping Site Designation Delegation Handbook for 
Dredged Material. U.S. Environmental Protection Agency, Office of 
Marine and Estuarine Protection, Washington, DC. Sept. 30, 1986.

IX. 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). Rather, this action would provide a cost-effective, 
environmentally acceptable alternative for the disposal of dredged 
material for many small marina and boat yard operators in the region.

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. It will not have 
substantial direct effects on the states, on the relationship between 
the federal 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 it 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. As 
described in the Tribal Consultation subsection of the Compliance with 
Statutory and Regulatory Authorities section, EPA consulted with the 
potentially 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 the environmental health or safety risks addressed by this 
action do not 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

    The 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.''
    The EPA expects that this action will have no significant adverse 
impacts on the ocean and coastal waters off southern Maine, New 
Hampshire, and northern Massachusetts or the organisms that inhabit 
them.

12. Executive Order 13840: Regarding the Ocean Policy To Advance the 
Economic, Security, and Environmental Interests of the United States

    The policies in section 2 of Executive Order 13840 (83 FR 29341, 
June 19, 2019) include, among others, the following: ``It shall be the 
policy of the United States to: (a) Coordinate the activities of 
executive departments and agencies (agencies) regarding ocean-related 
matters to ensure effective management of ocean, coastal, and Great 
Lakes waters and to provide economic, security, and environmental 
benefits for present and future generations; [. . . and] (d) facilitate 
the economic growth of coastal communities and promote ocean 
industries, which employ millions of Americans, advance ocean science 
and technology, feed the American people, transport American goods, 
expand recreational opportunities, and enhance America's energy 
security. . . .'' EPA, in developing this Final Rule, coordinated 
extensively with other federal and state

[[Page 60383]]

agencies, and potentially affected stakeholders, to ensure effective 
management of dredging and dredged material by providing a cost-
effective, environmentally acceptable alternative for the disposal of 
such material. The availability of such an ocean disposal site supports 
the economic growth of coastal communities and ocean industries, which 
will be able to maintain safe and efficient navigation through the 
ports and channels in a cost-effective manner.

13. Executive Order 13771: Reducing Regulation and Controlling 
Regulatory Costs

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 3, 1993) and is, 
therefore, not subject to review under Executive Order 13771. See OMB, 
``Guidance Implementing Executive Order 13771, Titled ``Reducing 
Regulation and Controlling Regulatory Costs'' (M-17-21) (April 5, 
2017), p. 3 (``An `E.O. 13771 Regulatory Action' is: (i) A significant 
regulatory action as defined in section 3(f) of E.O. 12866 that has 
been finalized and that imposes total costs greater than zero. . . 
.'').

14. 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 30 days after date of publication.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: September 18, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.

    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. Amend Sec.  228.15 by adding paragraph (b)(7) to read as follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (b) * * *
    (7) Isles of Shoals North Dredged Material Disposal Site (IOSN).
    (i) Location: A 8,530-foot (2,600-meter) diameter circle on the 
seafloor with its center located at 70[deg] 26.995' W and 43[deg] 
1.142' N.
    (ii) Size: 1,312 acres (57,150,000 square feet).
    (iii) Depth: Ranges from 295 to 328 feet (90 to 100 m).
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
that meets the requirements of the MPRSA and its implementing 
regulations at 40 CFR parts 220 through 228.

[FR Doc. 2020-21006 Filed 9-24-20; 8:45 am]
BILLING CODE 6560-50-P