[Federal Register Volume 85, Number 50 (Friday, March 13, 2020)]
[Proposed Rules]
[Pages 14622-14628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04650]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 228
[EPA-R04-OW-2020-0056; FRL-10006-07-Region 4]
Ocean Dumping: Modification of an Ocean Dredged Material Disposal
Site Offshore of Port Everglades, Florida
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a modification of the existing EPA designated ocean dredged
material disposal site (ODMDS) offshore of Port Everglades, Florida
(referred to hereafter as the existing Port Everglades ODMDS) pursuant
to the Marine Protection, Research and Sanctuaries Act, as amended
(MPRSA). The primary purpose for the site modification is to enlarge
the site to serve the long-term need for a location to dispose of
suitable material dredged from the Port Everglades Harbor and for the
disposal of suitable dredged material for persons who receive a MPRSA
permit for such disposal. The modified site will be subject to
monitoring and management to ensure continued protection of the marine
environment.
[[Page 14623]]
DATES: Written comments must be received on or before April 13, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OW-2020-0056, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments and accessing the docket and materials related to
this proposed rule.
Email: [email protected].
Mail: Wade Lehmann, U.S. Environmental Protection Agency,
Region 4, Water Division, Oceans and Estuarine Management Section, 61
Forsyth Street SW, Atlanta, Georgia 30303.
Instructions: Direct your comments to Docket ID No. EPA-R04-OW-
2020-0056. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through
www.regulations.gov or email, information that you consider to be CBI
or otherwise protected. The www.regulations.gov website is an
``anonymous access'' system, which means the EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to the EPA without
going through www.regulations.gov, your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the internet. If you
submit an electronic comment, the EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If the EPA cannot read your comment due
to technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses. For additional information about the
EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: Publicly available docket materials are available either
electronically at www.regulations.gov or in hard copy during normal
business hours from the regional library at the EPA, Region 4 Library,
9th Floor, 61 Forsyth Street SW, Atlanta, Georgia 30303. For access to
the documents at the Region 4 Library, contact the Region 4 Library
Reference Desk at (404) 562-8190, between the hours of 9:00 a.m. to
12:00 p.m., and between the hours of 1:00 p.m. to 4:00 p.m., Monday
through Friday, excluding Federal holidays, for an appointment.
FOR FURTHER INFORMATION CONTACT: Wade Lehmann, U.S. Environmental
Protection Agency, Region 4, Water Division, Oceans and Estuarine
Management Section, 61 Forsyth Street SW, Atlanta, Georgia 30303; phone
number (404) 562-8082; email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Potentially Affected Persons
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. The EPA's
proposed action would be relevant to persons, including organizations
and government bodies seeking to dispose of dredged material in ocean
waters offshore of Port Everglades, Florida. Currently, the U.S. Army
Corps of Engineers (USACE) would be most affected by this action.
Potentially affected categories and persons include:
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Examples of potentially regulated
Category persons
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Federal Government................ USACE Civil Works projects, and
other Federal agencies.
Industry and general public....... Port authorities, marinas and
harbors, shipyards and marine
repair facilities, berth owners.
State, local and tribal Governments owning and/or
governments. responsible for ports, harbors, and/
or berths, government agencies
requiring disposal of dredged
material associated with public
works projects.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding persons likely to be affected by this
proposed action. For any questions regarding the applicability of this
proposed action to a particular entity, please refer to the contact
person listed in the preceding FOR FURTHER INFORMATION CONTACT section.
II. Background
a. History of Disposal Sites Offshore of Port Everglades, Florida
There is currently one designated ODMDS off the coast of Port
Everglades, Florida. The existing Port Everglades ODMDS is located
three nautical miles offshore of Fort Lauderdale. It is currently 1.43
square nautical miles (nmi\2\) in size. The Port Everglades ODMDS
received final designation in 2005.
The USACE Port Everglades District and the EPA Region 4 have
identified a need to either designate a new ODMDS or modify the
existing Port Everglades ODMDS. The need for modifying current ocean
disposal capacity is based on future capacity requirements, historical
dredging volumes, estimates of dredging volumes for future proposed
projects, and limited capacity of upland confined disposal facilities
(CDFs) in the area.
The EPA is proposing to modify, by expansion, the existing Port
Everglades ODMDS rather than designate a new site off the coast of Port
Everglades for ocean disposal of dredged material. The proposed
modification of the existing Port Everglades ODMDS for dredged material
does not mean that the USACE or the EPA has approved the use of the
existing Port Everglades ODMDS or a modified Port Everglades ODMDS for
open water disposal of dredged material from any specific project.
Before any person can ocean dump dredged material at the existing Port
Everglades ODMDS or a modified Port Everglades ODMDS, the EPA and the
USACE must evaluate the project according to the ocean dumping
regulatory criteria (40 CFR 227) and the USACE must authorize the
disposal. Under section 103 of the MPRSA, the USACE is the federal
agency that decides whether to issue a permit authorizing the ocean
disposal of dredged materials. In the case of federal navigation
projects, the USACE may implement the MPRSA directly in the USACE
projects involving ocean disposal of dredged materials. The USACE
relies on the EPA's ocean dumping criteria when evaluating permit
requests for (and implementing federal projects involving) the
transportation of dredged material for the purpose of dumping it into
ocean waters. MPRSA permits and federal projects involving ocean
dumping of dredged material are subject to the EPA's review and
concurrence in accordance with 33 U.S.C. 1413(c). The
[[Page 14624]]
EPA may concur with or without conditions or decline to concur (i.e.,
non-concur) on the permit. If the EPA concurs with conditions, the
final permit or authorization must include those conditions. If EPA the
declines to concur, the USACE cannot issue the permit for ocean dumping
of dredged material or authorize the disposal. This action is supported
by a Draft Environmental Assessment (DEA), which was provided for
public notice and comment in February 2020 and is accessible at:
https://www.epa.gov/aboutepa/about-epa-region-4-southeast#r4-public-notices.
b. Location and Configuration of the Proposed Modified Port Everglades
ODMDS
This action proposes the modification of the existing Port
Everglades ODMDS. The proposed modified ODMDS is in -587 to -761 feet
of water (-179 to -232 meters). The proposed modified ODMDS would
expand the existing Port Everglades ODMDS from a size of approximately
1.34 nmi\2\ to 3.21 nmi\2\ in size. The location of the proposed
modified ODMDS is bounded by the coordinates listed below. The proposed
coordinates for the site are in North American Datum 83 (NAD 83):
Proposed Modified Port Everglades ODMDS
(A) 26[deg]08.750' N, 80[deg]01.000' W
(B) 26[deg]08.750' N, 80[deg]02.578' W
(C) 26[deg]06.500' N, 80[deg]02.578' W
(D) 26[deg]06.500' N, 80[deg]01.000' W
The proposed modification of the existing ODMDS will allow the EPA
to adaptively manage the site to maximize its capacity, minimize the
potential for mounding and loss of fine sediments outside of the site,
and minimize the potential for any long-term adverse effects to the
marine environment.
c. Management and Monitoring of the Site
The proposed modified ODMDS is expected to receive dredged material
from the Federal navigation project at Port Everglades Harbor, Florida,
and dredged material from other applicants who obtain a permit for the
disposal of dredged material at the proposed modified ODMDS. All
persons using the site will be required to follow the Site Management
and Monitoring Plan (SMMP) for the ODMDS that is specifically developed
for the proposed modified ODMDS. A draft SMMP for the proposed modified
ODMDS was noticed for public review in January 2020 along with the DEA
and is accessible at: https://www.epa.gov/aboutepa/about-epa-region-4-southeast#r4-public-notices. The SMMP will be finalized by the EPA
Region 4 and the USACE Jacksonville District following the
consideration of comments received. The SMMP includes management and
monitoring requirements to ensure that dredged materials disposed at
the proposed modified ODMDS are suitable for disposal in the ocean and
that adverse impacts of disposal, if any, are addressed to the maximum
extent practicable. This includes provisions to avoid and minimize
potential impacts to coral reefs present near Port Everglades. The SMMP
for the proposed modified ODMDS also addresses management of the site
to ensure adverse mounding and dispersal of fine sediments does not
occur and ensures that disposal events minimize interference with other
uses of ocean waters near the proposed modified ODMDS.
d. MPRSA Criteria
In evaluating the proposed modified ODMDS, the EPA assessed the
site according to the criteria of the MPRSA, with emphasis on the
general and specific regulatory criteria of 40 CFR part 228, to
determine whether the proposed site designation satisfies those
criteria. The EPA's DEA provides an extensive evaluation of the
criteria and other related factors for the modification of the existing
ODMDS.
General Criteria (40 CFR 228.5)
(a) Sites must be selected to minimize interference with other
activities in the marine environment, particularly avoiding areas of
existing fisheries or shellfisheries, and regions of heavy commercial
or recreational navigation (40 CFR 228.5(a)).
Historically, an interim site located approximately 1.6 nautical
miles from shore was used for ocean disposal of dredged material from
Port Everglades Harbor but was discontinued in the 1980s due to
potential impacts of sediments on nearby coral reef resources. The
existing Port Everglades Harbor ODMDS was designated in 2005 under
Section 103 of the MPRSA, as there was no nearby EPA-designated ODMDS.
The evaluation for the 2005 designation included considerations of
potential interference with other activities in the marine environment
including avoiding areas of existing critical fisheries or
shellfisheries, and regions of heavy commercial or recreational
navigation. These evaluations were reconsidered from 2010 through to
the present time as the proposed modified ODMDS continued to be
assessed.
(b) Sites must be situated such that temporary perturbations to
water quality or other environmental conditions during initial mixing
caused by disposal operations would be reduced to normal ambient levels
or undetectable contaminant concentrations or effects before reaching
any beach, shoreline, marine sanctuary, or known geographically limited
fishery or shellfishery (40 CFR 228.5(b)).
The proposed ODMDS modification area will be used for disposal of
suitable dredged material as determined by Section 103 of the MPRSA.
Based on the USACE and EPA sediment testing and evaluation procedures,
disposal of dredged maintenance material and proposed new work material
is not expected to have any long-term impact on water quality. The
existing Port Everglades ODMDS and proposed modified ODMDS are located
sufficiently far from shore and fisheries resources to allow temporary
water quality disturbances caused by disposal of dredged material to be
reduced to ambient conditions before reaching any environmentally
sensitive areas.
(c) The sizes of disposal sites will be limited in order to
localize for identification and control any immediate adverse impacts,
and to permit the implementation of effective monitoring and
surveillance to prevent adverse long-range impacts. Size,
configuration, and location are to be determined as part of the
disposal site evaluation (40 CFR 228.5(d)).
The location, size, and configuration of the proposed modified
ODMDS provides long-term capacity, while also permitting effective site
management, site monitoring, and limiting environmental impacts to the
surrounding area to the greatest extent practicable.
Based on projected new work and maintenance dredging, and permitted
dredged material disposal needs, it is estimated that the proposed
modified ODMDS should be approximately 3.21 nmi\2\ in size to meet the
anticipated long-term disposal needs of the area. This would provide
the proposed modified ODMDS with an estimated capacity of approximately
6.7 million cubic yards, which is sufficient to manage risk, account
for future unknown disposal operations from private entities, and
provide a margin of navigation safety.
By adding approximately 2.2 nmi\2\ to the existing Port Everglades
ODMDS, the total area of the proposed modified Port Everglades ODMDS
would be 3.21 nmi\2\. An ODMDS of this size and capacity will provide a
long-term ocean disposal option for the greater Port Everglades area.
[[Page 14625]]
When determining the size of the proposed site, the ability to
implement effective monitoring and surveillance programs was considered
to ensure that the environment of the site could be protected, and that
navigational safety would not be compromised by the mounding of dredged
material. An SMMP is being developed and will be implemented to
determine if disposal at the site is significantly affecting adjacent
areas and to detect the presence of adverse effects. At a minimum, the
monitoring program will consist of bathymetric surveys, sediment grain
size analysis, chemical analysis of constituents of concern in the
sediments, and an assessment of the constitution of the benthic
community.
(d) EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites where
historical disposal has occurred (40 CFR 228.5(e)).
The existing Port Everglades ODMDS and proposed expansion of the
ODMDS are beyond the edge of the continental shelf.
Specific Criteria (40 CFR 228.6)
(1) Geographical Position, Depth of Water, Bottom Topography and
Distance From Coast (40 CFR 228.6(a)(1))
The proposed modified ODMDS is on the Florida Continental Slope,
four nautical miles offshore of Fort Lauderdale, Florida. Water depths
range from -179 to -232 meters (-587 to -761 feet), with an average
depth of 207 meters (-678 feet). Sediments consist of sand with various
mixtures of sand and silts with scattered rubble hardbottom. The DEA
contains a map of the proposed ODMDS modification. The expansion
retains the ODMDS off the continental shelf in a range that is not
expected to allow sediments to travel to nearby shore-associated coral
reef habitat.
(2) Location in Relation to Breeding, Spawning, Nursery, Feeding, or
Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR
228.6(a)(2))
The proposed modified ODMDS has been selected to avoid the presence
of any exclusive breeding, spawning, nursery, feeding, or passage areas
for adult or juvenile phases of living resources.
(3) Location in Relation to Beaches and Other Amenity Areas (40 CFR
228.6(a)(3))
The center of the proposed modified ODMDS is several miles from any
beaches or amenity areas. No significant impacts to beaches or amenity
areas associated with the existing Port Everglades ODMDS have been
detected. The U.S. Navy has facilities south of the ODMDS and were
consulted to verify that no impediments will exist with the expanded
ODMDS.
(4) Types and Quantities of Wastes Proposed To Be Disposed of, and
Proposed Methods of Release, Including Methods of Packing the Waste, if
any (40 CFR 228.6(a)(4))
Only suitable dredged material that meets the Ocean Dumping
Criteria in 40 CFR 220-228 and receives a permit or is otherwise
authorized for dumping by the USACE will be disposed in the proposed
modified ODMDS. Dredged materials dumped in this area will be primarily
sand and rock with some fines that originate from the Port Everglades
Harbor. Average yearly disposal of dredged maintenance material into
the proposed modified ODMDS is expected to be approximately 30,000
cubic yards and variable volumes of new work dredged material up to 6.7
million cubic yards. None of the material is packaged in any manner.
Under section 103 of the MPRSA, the USACE is the federal agency
that decides whether to issue a permit authorizing the ocean disposal
of dredged materials. In the case of federal navigation projects
involving ocean disposal of dredged materials, the USACE is subject to
MPRSA, but does not require a USACE permit. The USACE relies on the
EPA's ocean dumping criteria when evaluating permit requests for (and
implementing federal projects involving) the transportation of dredged
material for the purpose of dumping it into ocean waters. MPRSA permits
and federal projects involving ocean dumping of dredged material are
subject to the EPA's review and concurrence. The EPA may concur, with
or without conditions, or decline to concur on the permit, i.e. non-
concur. If the EPA concurs with conditions, the final permit must
include those conditions. If the EPA declines to concur (non-concurs)
on an ocean dumping permit for dredged material, the USACE cannot issue
the permit.
(5) Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))
The EPA expects monitoring and surveillance at the proposed
modified ODMDS to be feasible and readily performed from ocean or
regional class research vessels. The area of the proposed modified
ODMDS has been surveyed and sampled in 2004, 2007 and 2014. The EPA
will monitor the site for physical, biological and chemical attributes
as well as for potential impacts. Bathymetric surveys will be conducted
routinely, and benthic infauna and epibenthic organisms will be
monitored, as described in the SMMP for the site.
(6) Dispersal, Horizontal Transport and Vertical Mixing Characteristics
of the Area, Including Prevailing Current Direction and Velocity, if
any (40 CFR 228.6(a)(6))
Current velocities vary throughout the water column and are subject
to wind and the Florida Current based circulations which is generally
northerly with eddies occuring that drive currents south. Currents
measured at nearby sites are predominantly to the north or south on the
order of 1-4 knots (50-200 centimeters per second).
(7) Existence and Effects of Current and Previous Discharges and
Dumping in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7))
Previous disposal of dredged material in the existing Port
Everglades ODMDS has resulted in temporary increases in suspended
sediment concentrations during disposal operations, burial of benthic
organisms within the site, and slight changes in the abundance and
composition of benthic assemblages. Short-term, long-term, and
cumulative effects of dredged material disposal in the proposed
modified ODMDS would be similar to those for the existing Port
Everglades ODMDS, which are expected to be temporary and return to
baseline over time.
(8) Interference With Shipping, Fishing, Recreation, Mineral
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR
228.6(a)(8))
There will be minor, short-term interferences with commercial and
recreational boat traffic during the transport of dredged material to
the proposed modified ODMDS. The site has not been identified as an
area of special scientific importance. There are no aquaculture areas
near the site. There may be recreational fishing in the area. The
likelihood of direct interference with these activities is low,
provided there is close communication and coordination among users of
the ocean resources. The U.S. Navy, Fort Lauderdale Branch, Naval
Surface Warfare Center range is located south of the existing and
proposed expanded ODMDS. There will be no impact to either U.S. Navy
operations due to the expansion of the ODMDS. The SMMP for the proposed
modified ODMDS contains provisions for corrective
[[Page 14626]]
measures if impacts to potential hardbottom habitat related to dredged
material disposal are identified.
(9) The Existing Water Quality and Ecology of the Sites as Determined
by Available Data or Trend Assessment of Baseline Surveys (40 CFR
228.6(a)(9))
Water quality of the existing site is typical of the Florida coast.
Water and sediment quality analyses conducted in the vicinity of the
proposed modified ODMDS and experience with past disposals in the
existing Port Everglades ODMDS have not identified any adverse water
quality impacts from ocean disposal of dredged material. The site
supports benthic and epibenthic fauna characteristic of the region.
(10) Potentiality for the Development or Recruitment of Nuisance
Species in the Disposal Site (40 CFR 228.6(a)(10))
Nuisance species, considered as any undesirable organism not
previously existing at a location, have not been observed at, or in the
vicinity of, the proposed modified ODMDS. Disposal of dredged material,
as well as monitoring, has been ongoing for the past 14 years. Nuisance
species have not been found. The dredged material to be disposed at the
ODMDS is expected to be from similar locations to those dredged
previously; therefore, it expected that any benthic organisms
transported to the site would be relatively similar in nature to those
already present.
(11) Existence at or in Close Proximity to the Site of any Significant
Natural or Cultural Feature of Historical Importance (40 CFR
228.6(a)(11))
A maritime survey of this site was conducted in 2013 to identify
areas of potential hardbottom resources as well as any historical
artifacts. These efforts showed the presence of only two anomalies that
when investigated were not likely to be indicative of potential
historical or natural features. Wreckage from one modern sailing vessel
was potentially identified in the northeast corner of the site.
Scattered rubble hardbottom habitat was potentially identified within
the expanded footprint.
The SMMP for the ODMDS contains measures to monitor potential
identified resources.
III. Environmental Statutory Review
a. National Environmental Policy Act (NEPA)
The EPA's primary voluntary NEPA document for expanding the
existing Port Everglades ODMDS is the DEA, prepared by the EPA in
cooperation with the USACE and issued for public review and comment in
January 2020. Anyone desiring a copy of the DEA may access it at
https://www.epa.gov/aboutepa/about-epa-region-4-southeast#r4-public-notices, or obtain a copy from the address given above. The DEA issued
in January 2020 amends a DEA that was previously issued for public
review and comment in August 2013 to capture prior corresponding agency
comments. Any comments received regarding the DEA issued in January
2020 will be provided in the Final Environmental Assessment for this
proposed action. The DEA and its Appendices provide the threshold
environmental review for modification of the ODMDS. The information
from the DEA is used above in the discussion of the ocean dumping
criteria.
The proposed action discussed in the DEA is the permanent
designation of a modified ODMDS offshore Port Everglades, Florida. The
purpose of the proposed action is to provide an environmentally
acceptable option for the ocean disposal of dredged material. The need
for the proposed modified ODMDS is based on a demonstrated USACE need
for ocean disposal of dredged material from the Port Everglades Harbor
Federal Navigation Project, including the deepening and widening
portions of the Project. The need for ocean disposal for these and
other future projects, and the suitability of the material for ocean
disposal, will be determined on a case-by-case basis as part of the
USACE process for reviewing ocean disposal actions and a public review
process for its own actions to ocean dump dredged material from federal
projects. These permit/authorization evaluations will include
evaluation of disposal alternatives.
The DEA discusses the need for the proposed modified ODMDS and
examines ocean disposal site alternatives to the proposed actions. The
need for expanding the existing Port Everglades ODMDS is based on
future capacity modeling, movement of fine sediments in the Miami ODMDS
which correlate to this site, estimated dredging volumes for proposed
projects, and limited capacity of upland disposal facilities in the
area. Other options were considered nearer to the Port, but the other
options were discarded due to potential impacts to protected coral
resources. The following three ocean disposal alternatives were
considered in the DEA.
No Action Alternative
The No Action Alternative is defined as not modifying the size of
the existing Port Everglades ODMDS. Implementation of this alternative
would not address the need for an adequately sized ocean dump site to
accommodate future ocean disposal of dredging projections. As a result,
the No Action Alternative does not meet the proposed action's purpose
and need. However, the No Action Alternative was evaluated in the DEA
as a basis to compare the effects of the other alternatives considered.
Alternative 1: Modification of the Existing Port Everglades ODMDS To
Encompass a 3.21 nmi\2\ Area in a North-South Orientation (Preferred
Alternative)
Modification of the existing Port Everglades ODMDS to encompass a
3.21 nmi\2\ area as described above is the environmentally and
operationally preferred alternative and considered the most viable
option. The existing Port Everglades ODMDS is relatively small and has
a limited capacity. Modifying the existing Port Everglades ODMDS to
increase capacity would sustain the disposal needs associated with: The
federally authorized Port Everglades Harbor sand bypass and navigation
projects; authorized maintenance dredging; and potential future private
interests. It is the most feasible option based on containing dredged
material from disposal operations while impacting the least potential
hardbottom habitat. A detailed justification for this preferred
alternative is included in Section 2 in the DEA.
Alternative 2: Modification of the Existing Port Everglades ODMDS To
Encompass a 2.89 nmi\2\ Area in an East-West Orientation
In order to inform viable options for expanding the existing site,
the EPA evaluated the data and information included in the September
2013 Evaluation of Dredged Material Behavior at the Port Everglades
Harbor Federal Project Ocean Dredged Material Disposal Site. The EPA
specifically considered the option of expanding the site in an east-
west orientation. Although designating an expanded ODMDS in an east-
west orientation would provide adequate site capacity, there is the
possibility that disposal to a site within this orientation would
result in a higher level of impact to hardbottom habitat. As described
in the DEA, a site more adequately protective of potential hardbottom
areas was selected as the preferred alternative (Alternative 1).
b. Magnuson-Stevens Act
The USACE, in conjunction with EPA, submitted an Essential Fish
[[Page 14627]]
Habitat (EFH) assessment, pursuant to Section 305(b), 16 U.S.C.
1855(b)(2), of the Magnuson-Stevens Act, as amended (MSA), 16 U.S.C.
1801 to 1891d, to the National Marine Fisheries Service (NMFS). The
USACE determined that the modification of the existing Port Everglades
ODMDS will not significantly affect managed species or EFH; however,
underwater surveys are being conducted to verify conclusions.
Discussions with the NMFS are ongoing, and consultation will be
completed prior to finalization of the rule.
c. Coastal Zone Management Act
Pursuant to an Office of Water policy memorandum dated October 23,
1989, the EPA has evaluated the proposed site designations for
consistency with the State of Florida's (the State) approved coastal
zone management program. On behalf of the EPA, the USACE, Jacksonville
District determined that the proposed action is consistent with the
Florida Coastal Management Program to the maximum extent practicable.
Florida Department of Environmental Protection (FLDEP) issued Coastal
Zone Consistency for the Port Everglades ODMDS on April 29, 2011. The
EPA is communicating with the State of Florida to determine appropriate
next steps to ensure consistency with the Coastal Zone Management Act.
d. Endangered Species Act
The Endangered Species Act (ESA), as amended, 16 U.S.C. 1531 to
1544, requires federal agencies to consult with NMFS and the U.S. Fish
and Wildlife Service to ensure that any action authorized, funded, or
carried out by the federal agency is not likely to jeopardize the
continued existence of any endangered species or threatened species or
result in the destruction or adverse modification of any critical
habitat. The EPA is opting to address consultation pursuant to ESA
Section 7(d) due to the expected publication of an updated Biological
Opinion for the South Atlantic District of the U.S. Army Corps of
Engineers, which is expected to address the species to which this
action may apply.
e. National Historic Preservation Act
The National Historic Preservation Act (NHPA), 16 U.S.C. 470 to
470a-2, requires federal agencies to consider the effect of their
actions on districts, sites, buildings, structures, or objects,
included in, or eligible for inclusion in the National Register of
Historic Places (NRHP). The depths of the ODMDS (greater than 700 feet
depth) exclude potential habitation or resources related to human
settlements. In a letter dated February 4, 2013, the Florida Department
of State concurred with the determination that no historic properties
would be affected by the expansion of the ODMDS. The EPA is in
communication with the State of Florida to determine whether any
additional information has become available that may warrant changes to
their 2013 determination.
IV. Statutory and Executive Order Reviews
This rule proposes to modify the Port Everglades ODMDS pursuant to
Section 102 of the MPRSA. This proposed action complies with applicable
executive orders and statutory provisions as follows:
a. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is not a ``significant regulatory action''
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011).
b. Executive Order 13089: Coral Reef Protection
This proposed action considers Executive Order 13089 on Coral Reef
Protection ``to preserve and protect the biodiversity, health,
heritage, and social and economic value of U.S. coral reef ecosystems
and the marine environment.'' Conditions are present in the SMMP which
are designed to reduce potential impacts from sediments during transit
to the ODMDS.
c. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. Burden is defined at 5 CFR 1320.3(b). This proposed site
designation, does not require persons to obtain, maintain, retain,
report, or publicly disclose information to or for a federal agency.
d. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires federal agencies
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions. For purposes
of assessing the impacts of this rule on small entities, small entity
is defined as: (1) A small business defined by the Small Business
Administration's size regulations at 13 CFR 121.201; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district, or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. The EPA determined that this proposed action
will not have a significant economic impact on small entities because
the proposed rule will only have the effect of regulating the location
of site to be used for the disposal of dredged material in ocean
waters. After considering the economic impacts of this proposed rule,
the EPA certifies that this proposed action will not have a significant
economic impact on a substantial number of small entities.
e. Unfunded Mandates Reform Act
This proposed action contains no federal mandates under the
provisions of Title II of the Unfunded Mandates Reform Act (UMRA) of
1995, 2 U.S.C. 1531 to 1538, for State, local, or tribal governments or
the private sector. This proposed action imposes no new enforceable
duty on any State, local or tribal governments or the private sector.
Therefore, this proposed action is not subject to the requirements of
sections 202 or 205 of the UMRA. This proposed action is also not
subject to the requirements of section 203 of the UMRA because it
contains no regulatory requirements that might significantly or
uniquely affect small government entities. Those entities are already
subject to existing permitting requirements for the disposal of dredged
material in ocean waters.
f. Executive Order 13132: Federalism
This proposed action does not have federalism implications. It does
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among various levels of government, as
specified in Executive Order 13132. Thus, Executive Order 13132 does
not apply to this proposed action. In the spirit of Executive Order
13132, and consistent with the EPA policy to promote communications
between the EPA and State and local governments, the EPA specifically
solicited comments on this proposed action from State and local
officials.
[[Page 14628]]
g. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action does not have tribal implications, as
specified in Executive Order 13175 because the modification of the
existing Port Everglades ODMDS will not have a direct effect on Indian
Tribes, on the relationship between the federal government and Indian
Tribes, or on the distribution of power and responsibilities between
the federal government and Indian Tribes. In addition, the depths of
the ODMDS (greater than 700 feet depth) exclude potential habitation or
resources related to human settlements. Thus, Executive Order 13175
does not apply to this action. However, the EPA specifically welcomes
comments on this proposed action from tribal officials and any comments
related to this Executive Order.
h. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks, such that the
analysis required under Section 5-501 of the Executive Order has the
potential to influence the regulation. This proposed action is not
subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks.
However, the EPA welcomes comments on this proposed action related to
this Executive Order.
i. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed action is not subject to Executive Order 13211,
``Actions Concerning Regulations that Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355) because it is not a
``significant regulatory action'' as defined under Executive Order
12866. However, we welcome comments on this proposed action related to
this Executive Order.
j. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272), directs
the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus bodies. The NTTAA directs the EPA to provide
Congress, through Office of Management and Budget, explanations when
the Agency decides not to use available and applicable voluntary
consensus standards. This proposed action includes environmental
monitoring and measurement as described in the EPA's proposed SMMP. The
EPA will not require the use of specific, prescribed analytic methods
for monitoring and managing the proposed modified ODMDS. The Agency
plans to allow the use of any method, whether it constitutes a
voluntary consensus standard or not, that meets the monitoring and
measurement criteria discussed in the SMMP. The EPA welcomes comments
on this aspect of the proposed rulemaking and, specifically, invites
the public to identify potentially applicable voluntary consensus
standards and to explain why such standards should be used in this
proposed action.
k. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629) establishes federal executive
policy on environmental justice. Its main provision directs federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States. The EPA determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. The EPA has assessed the overall protectiveness of
modifying the existing Port Everglades ODMDS against the criteria
established pursuant to the MPRSA to ensure that any adverse impact to
the environment will be mitigated to the greatest extent practicable.
The EPA welcomes comments on this proposed action related to this
Executive Order.
List of Subjects in 40 CFR Part 228
Environmental protection, Water pollution control.
Authority: This action is issued under the authority of Section
102 of the Marine Protection, Research, and Sanctuaries Act, as
amended, 33 U.S.C. 1401, 1411, 1412.
Dated: February 18, 2020.
Mary S. Walker,
Regional Administrator, EPA Region 4.
For the reasons set out in the preamble, the EPA proposes to amend
chapter I, title 40 of the Code of Federal Register as follows:
PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN
DUMPING
0
1. The authority citation for part 228 continues to read as follows:
Authority: 33 U.S.C. 1412 and 1418.
0
2. Section 228.15 is amended by revising paragraphs (h)(14)(i) through
(iii) and (vi) to read as follows:
Sec. 228.15 Dumping sites designated on a final basis.
* * * * *
(h) * * *
(14) * * *
(i) Location: Corner Coordinates (NAD 1983) 26[deg] 06.500',
80[deg] 01.000'; 26[deg] 06.500', 80[deg] 02.578'; 26[deg] 08.750,
80[deg] 02.578'; 26[deg] 08.750', 80[deg] 01.000'.
(ii) Size: Approximately 2.31 square nautical miles in size.
(iii) Depth: Ranges from approximately 587 to 761 feet (179 to 232
meters).
* * * * *
(vi) Restrictions: (A) Disposal shall be limited to dredged
material from the Port Everglades, Florida area;
(B) Disposal shall be limited to dredged material determined to be
suitable for ocean disposal according to 40 CFR 220-228;
(C) Disposal shall be managed by the restrictions and requirements
contained in the currently approved Site Management and Monitoring Plan
(SMMP);
(D) Monitoring, as specified in the currently approved SMMP, is
required.
* * * * *
[FR Doc. 2020-04650 Filed 3-12-20; 8:45 am]
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