87820 Federal Register / Vol. 81, No. 234 / Tuesday, December 6, 2016 / Rules and Regulations 

obligations under section 181(b)(2)(A) of 

the CAA and the provisions of the SIP 

Requirements Rule (40 CFR 51.1103), 

that the Pittsburgh Area attained the 

2008 ozone NAAQS by the applicable 

attainment date of July 20, 2016. This 

determination of attainment does not 

constitute a redesignation to attainment. 

Redesignations require states to meet a 

number of additional criteria, including 

EPA approval of a state plan to maintain 

the air quality standard for 10 years after 

redesignation. 

IV. Statutory and Executive Order 

Reviews 

A. General Requirements 

This rulemaking action finalizes a 

determination of attainment on the 2008 

ozone NAAQS based on air quality and 

does not impose additional 

requirements. For that reason, this 

determination of attainment: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

B. Submission to Congress and the 

Comptroller General 

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 action 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). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by February 6, 2017. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. 

This action determining that the 

Pittsburgh Area attained the 2008 ozone 

NAAQS by its July 20, 2016 attainment 

date may not be challenged later in 

proceedings to enforce its requirements. 

(See section 307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Ozone, Incorporation 

by reference, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

Dated: November 4, 2016. 

Shawn M. Garvin, 

Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart NN—Pennsylvania 

■ 2. In § 52.2056, paragraph (n) is added 

to read as follows: 

§ 52.2056 Determinations of attainment. 

* * * * * 

(n) EPA has determined based on 

2013 to 2015 ambient air quality 

monitoring data, that the PittsburghBeaver Valley, Pennsylvania marginal 

ozone nonattainment area has attained 

the 2008 8-hour ozone national ambient 

air quality standard (NAAQS) by the 

applicable attainment date of July 20, 

2016. Therefore, EPA has met the 

requirement pursuant to CAA section 

181(b)(2)(A) to determine, based on the 

area’s air quality as of the attainment 

date, whether the area attained the 2008 

8-hour ozone NAAQS. EPA also 

determined that the Pittsburgh-Beaver 

Valley, Pennsylvania marginal 

nonattainment area will not be 

reclassified for failure to attain by its 

applicable attainment date pursuant to 

section 181(b)(2)(A). 

[FR Doc. 2016–29118 Filed 12–5–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 228 

[FRL–9955–13–Region 1] 

Ocean Disposal; Designation of a 

Dredged Material Disposal Site in 

Eastern Region of Long Island Sound; 

Connecticut 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: With the publication of this 

Final Rule, the Environmental 

Protection Agency (EPA) is designating 

the Eastern Long Island Sound Disposal 

Site (ELDS), located offshore from New 

London, Connecticut, for the disposal of 

dredged material from harbors and 

navigation channels in eastern Long 

Island Sound and Little Narragansett 

Bay in the states of Connecticut, New 

York, and Rhode Island. This action is 

necessary to provide a long-term, openwater dredged material disposal site as 

an alternative for the possible future 

disposal of such material. This disposal 

site designation is subject to restrictions 

designed to support the goal of reducing 

or eliminating the disposal of dredged 

material in Long Island Sound. 

The basis for this action is described 

herein and in the Final Supplemental 

Environmental Impact Statement 

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Federal Register / Vol. 81, No. 234 / Tuesday, December 6, 2016 / Rules and Regulations 87821 

(FSEIS) released by EPA on November 

4, 2016 in conjunction with this Final 

Rule. The FSEIS identifies designation 

of the ELDS as the preferred alternative 

from the range of options considered. 

DATES: This final rule is effective on 

January 5, 2017. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R01–OW–2016– 

0239. All documents in the docket are 

listed on the http://www.regulations.gov 

Web site. Publically available docket 

materials are also available from EPA’s 

Web site https://www.epa.gov/oceandumping/dredged-materialmanagement-long-island-sound. 

FOR FURTHER INFORMATION CONTACT: Jean 

Brochi, U.S. Environmental Protection 

Agency, New England Regional Office, 5 

Post Office Square, Suite 100, Mail 

Code: OEP06–1, Boston, MA 02109– 

3912, telephone (617) 918–1536, 

electronic mail: brochi.jean@epa.gov. 

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 

IV. Potentially Affected Entities 

V. Disposal Site Description 

VI. Summary of Public Comments and EPA’s 

Responses 

VII. Changes From the Proposed Rule 

VIII. Compliance With Statutory and 

Regulatory Requirements 

A. Marine Protection, Research, and 

Sanctuaries Act and Clean Water Act 

B. National Environmental Policy Act 

C. Coastal Zone Management Act 

D. Endangered Species Act 

E. Magnuson-Stevens Fishery Conservation 

and Management Act 

IX. Restrictions 

X. Supporting Documents 

XI. Statutory and Executive Order Reviews 

I. Final Action 

EPA is publishing this Final Rule to 

designate the ELDS to provide an 

environmentally sound, open-water 

disposal option for possible use in 

managing dredged material from harbors 

and navigation channels in eastern Long 

Island Sound and its vicinity in the 

states of Connecticut, New York, and 

Rhode Island. The site designation is 

effective for an indefinite period of time. 

The use of the site is subject to 

restrictions designed to reduce or 

eliminate open-water disposal of 

dredged material in Long Island Sound, 

and to ensure protection of the 

environment if and when the site is 

used. 

The site designation process has been 

conducted consistent with the 

requirements of the Marine Protection, 

Research, and Sanctuaries Act 

(MPRSA), National Environmental 

Policy Act (NEPA), Coastal Zone 

Management Act (CZMA), and other 

applicable federal and state statutes and 

regulations. Compliance with these 

requirements is described in detail in 

Section VIII (‘‘Compliance with 

Statutory and Regulatory 

Requirements’’). The basis for this 

federal action is further described in an 

FSEIS that identifies EPA designation of 

the ELDS as the preferred alternative. 

The FSEIS was released on November 4, 

2016 on the EPA Region 1 Web site: 

https://www.epa.gov/ocean-dumping/

final-supplemental-environmentalimpact-statement-eastern-long-islandsound and is provided as a supporting 

document in the docket for this Final 

Rule. See 40 CFR 1506.10. This Final 

Rule also serves as EPA’s Record of 

Decision (ROD) for the NEPA review 

supporting the designation of this site. 

Dredged material disposal sites 

designated by EPA under the MPRSA 

are subject to detailed management and 

monitoring protocols to track site 

conditions and prevent the occurrence 

of unacceptable adverse effects. The 

management and monitoring protocols 

for the ELDS are described in the Site 

Management and Monitoring Plan 

(SMMP) that is incorporated into the 

FSEIS as Appendix I. See 33 U.S.C. 

1412(c)(3). EPA is authorized to close or 

limit the use of these sites to further 

disposal activity if their use causes 

unacceptable adverse impacts to the 

marine environment or human health. 

The designation of this disposal site 

does not constitute or imply EPA’s 

approval of open-water disposal of 

dredged material at the site from any 

specific project. Disposal of dredged 

material from federal projects, or nonfederal projects involving more than 

25,000 cubic yards (cy) of material, will 

not be allowed at the ELDS until the 

proposed disposal operation first 

receives, among other things, proper 

authorization from the U.S. Army Corps 

of Engineers (USACE) under MPRSA 

section 103. (Proposals to dispose of 

material from non-federal projects 

involving less than 25,000 cy yards of 

material are subject to regulation under 

Section 404 of the Clean Water Act.) In 

addition, any authorization by the 

USACE under MPRSA section 103 is 

subject to EPA review under MPRSA 

section 103(c), and EPA may concur, 

concur with conditions, or decline to 

concur with the authorization as a result 

of such review. In order to properly 

obtain authorization to dispose of 

dredged material at the ELDS under the 

MPRSA, the dredged material proposed 

for disposal must first satisfy the 

applicable criteria for testing and 

evaluating dredged material specified in 

EPA regulations at 40 CFR part 227, and 

it must be determined in accordance 

with EPA regulations at 40 CFR part 

227, subpart C, that there is a need for 

open-water disposal (i.e., that there is no 

practicable dredged material 

management alternative to open-water 

disposal with less adverse 

environmental impact). In addition, any 

proposal to dispose of dredged material 

under the MPRSA at the designated site 

will need to satisfy all the site 

restrictions included in the Final Rule 

as part of the site designation. See 40 

CFR 228.8 and 228.15(b)(6). 

II. Background 

On April 27, 2016, EPA published in 

the Federal Register (81 FR 24748) a 

proposed rule (the Proposed Rule) to 

designate an Eastern Long Island Sound 

Dredged Material Disposal Site (ELDS), 

located offshore from New London, 

Connecticut. EPA’s Proposed Rule also 

stated that two other alternative sites, 

the Niantic Bay and Cornfield Shoals 

disposal sites and CSDS), met the site 

selection criteria in the Ocean Dumping 

Regulations and could be designated for 

long-term use. EPA indicated that it was 

not proposing to designate those two 

alternative sites but requested public 

comment on the advisability of using 

those sites. 

On July 7, 2016, EPA published in the 

Federal Register (81 FR 44220) a final 

rule to amend the 2005 rule that 

designated the Central and Western 

Long Island Sound dredged material 

disposal sites (CLDS and WLDS, 

respectively). The rule amendments 

established new restrictions on the use 

of those sites to support the goal of 

reducing or eliminating open-water 

disposal in Long Island Sound. The 

restrictions include standards and 

procedures to promote the development 

and use of practicable alternatives to 

open-water disposal, including 

establishment of an interagency 

‘‘Steering Committee’’ and ‘‘Regional 

Dredging Team’’ that will oversee 

implementation of the rule. As 

explained in the Proposed Rule for the 

ELDS, the restrictions applicable to the 

CLDS and WLDS also will be applied to 

use of the ELDS. 

III. Purpose 

The purpose of EPA’s action is to 

provide a long-term, environmentally 

acceptable dredged material disposal 

option for potential use by the USACE 

and other federal, state, county, 

municipal, and private entities that 

must dredge channels, harbors, marinas, 

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87822 Federal Register / Vol. 81, No. 234 / Tuesday, December 6, 2016 / Rules and Regulations 

and other aquatic areas in eastern Long 

Island Sound in order to maintain 

conditions for safe navigation for marine 

commerce and recreation, and for 

military and public safety operations. 

This action is necessary because: (1) 

Periodic dredging is needed to maintain 

safe navigation and occasionally 

improve ports and harbors to maintain 

competitiveness and support a changing 

economy, and open-water dredged 

material disposal is necessary when 

practicable alternative means of 

managing the material are not available; 

(2) EPA determined that dredged 

material disposal/handling needs in the 

eastern region of Long Island Sound 

exceed the available disposal/handling 

capacity in that region; (3) the two 

currently used disposal sites in this 

region, the New London Disposal Site 

(NLDS) and CSDS, are only authorized 

for use until December 23, 2016; (4) 

there are currently no disposal sites 

designated for long-term use in the 

eastern Long Island Sound region; and 

(5) under the MPRSA, an EPA 

designation is required for any longterm open-water dredged material 

disposal site in Long Island Sound. 

In addition, the closest designated 

sites outside the eastern Long Island 

Sound region are the Central Long 

Island Sound Disposal Site (CLDS) and 

the Rhode Island Sound Disposal Site 

(RISDS), and both are too far from 

dredging centers in the eastern region of 

the Sound to be reasonable alternatives 

to the proposed site designation. For 

example, the distance from New London 

Harbor to the CLDS is 34.7 nautical 

miles (nmi) and to the RISDS is 44.5 

nmi. The Western Long Island Sound 

Disposal Site (WLDS) is approximately 

59 nmi west of New London Harbor, 

making it an even less feasible 

alternative. 

While the CLDS, WLDS, and RISDS 

have all been determined to be 

environmentally sound sites for 

receiving suitable dredged material, 

proposing to use any of them for 

suitable dredged material from the 

eastern region of Long Island Sound 

would be problematic, and EPA would 

consider them to be options of last 

resort. Using the CLDS or RISDS would 

greatly increase the transport distance 

for, and duration of, open-water 

disposal for dredging projects from the 

eastern Long Island Sound region. This, 

in turn, would greatly increase the cost 

of such projects and would likely render 

many dredging projects too expensive to 

conduct. For example, maintenance 

dredging of the U.S. Navy Submarine 

Base berths planned for 2016–2020 is 

expected to generate about 75,000 cy of 

suitable material; the estimated cost of 

disposal at the ELDS is $31/cy for a total 

cost of $2,325,000, while disposal at the 

CLDS is estimated at $64/cy for a total 

of $4,800,000. An improvement 

(deepening) project to accommodate a 

larger class of submarine planned for 

2016–2025 is expected to generate about 

350,000 cy; the estimated cost of 

disposal at the ELDS is $26/cy for a total 

cost of $9,100,000, while disposal at the 

CLDS is estimated at $57/cy for a total 

of $19,950,000 (USACE, 2016b). Thus, 

the longer haul distance more than 

doubles the cost to the public for the 

federal government to dredge the same 

project. 

Furthermore, the greater transport 

distances would be environmentally 

detrimental, in that they would entail 

greater energy use, increased air 

emissions, and increased risk of spills 

and short dumps (FSEIS, Section 2.1). 

Regarding air emissions, increased 

hauling distances might require using 

larger scows with more powerful towing 

vessels, which would use more fuel and 

cause more air pollution. Longer haul 

distances also may increase the amount 

of time necessary to complete a 

dredging project, resulting in an 

extended period of disruption to the 

areas being dredged. 

In its Long Island Sound Dredged 

Material Management Plan (DMMP), the 

USACE projected that dredging in 

eastern Long Island Sound would 

generate approximately 22.6 million 

cubic yards (mcy) of dredged material 

over the next 30 years. Of the total 

amount of 22.6 mcy, approximately 13.5 

mcy was projected to be fine-grained 

sediment that meets MPRSA and Clean 

Water Act (CWA) standards for aquatic 

disposal (i.e., ‘‘suitable’’ material), and 

9.1 mcy was projected to be coarsegrained sand that also meets MPRSA 

and CWA standards for aquatic disposal 

(i.e., also ‘‘suitable’’ material). In 

addition, the DMMP projected that 

approximately 80,900 cy of material 

from eastern Long Island Sound would 

be fine-grained sediment that does not 

meet MPRSA and CWA standards for 

aquatic disposal (i.e., ‘‘unsuitable’’ 

material). 

In response to comments asserting 

that no disposal site is needed in the 

eastern region of Long Island Sound, 

and comments urging that the size of 

any site be reduced or minimized, EPA 

asked the USACE to revisit once more 

its estimate of disposal capacity needs 

and to revise the figures, if appropriate. 

Although the values from the DMMP 

reflected substantial analysis and public 

input, the USACE agreed to reassess the 

capacity needs in coordination with 

EPA. This reassessment has resulted in 

a projected disposal capacity need of 

approximately 20 mcy, which still 

supports the conclusion that a disposal 

site is needed in the eastern region of 

the Sound. The reassessment of capacity 

needs is discussed further in Sections V 

(‘‘Disposal Site Description’’) and VI 

(‘‘Summary of Public Comments and 

EPA’s Responses’’) of this document 

and in Section 5.8 of the FSEIS. 

The detailed assessment of 

alternatives to open-water disposal in 

the USACE’s DMMP determined that, 

while the sand generated in this region 

may be able to be used beneficially to 

nourish beaches, there are not 

practicable alternatives to open-water 

disposal with sufficient capacity to 

handle the projected volume of finegrained sediment. As described in the 

Proposed Rule and in Section IX of the 

Final Rule itself, EPA has placed 

restrictions on the use of all Long Island 

Sound dredged material disposal sites 

that are designed to facilitate and 

promote the use of practicable 

alternatives to open-water disposal 

whenever available, but EPA has 

determined that one designated openwater disposal site is needed in eastern 

Long Island Sound. 

Given the need to provide an openwater disposal site as an option for 

dredged material management, EPA 

designation of a long-term dredged 

material disposal site(s) provides 

environmental benefits. First, when a 

site being used under the USACE’s 

short-term site selection authority is due 

to expire, designation by EPA is the 

only way to authorize continued use of 

that site, even if the site is 

environmentally suitable or even 

environmentally preferable to all other 

sites. With the NLDS and CSDS closing 

in December 2016, EPA’s site 

designation studies were designed to 

determine whether these or any other 

sites should be designated for continued 

long-term use. Congress has directed 

that the disposal of dredged material 

should take place at EPA-designated 

sites, rather than USACE-selected sites, 

when EPA-designated sites are available 

(see MPRSA 103(b)). Consistent with 

that Congressional intent, EPA’s policy 

is that it is generally environmentally 

preferable to concentrate any openwater disposal at sites that have been 

used historically and at fewer sites, 

rather than relying on the selection by 

the USACE of multiple sites to be used 

for a limited time, see 40 CFR 228.5(e). 

Second, MPRSA criteria for selecting 

and designating sites require EPA to 

consider previously used disposal sites, 

with active or historically used sites 

given preference in the evaluation (40 

CFR 228.5(e)). This preference will 

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Federal Register / Vol. 81, No. 234 / Tuesday, December 6, 2016 / Rules and Regulations 87823 

water disposal of dredged material to 

discrete areas that have already received 

dredged material, and avoid distributing 

any effects over a larger geographic area. 

Finally, unlike USACE-selected sites, 

EPA-designated sites require a SMMP 

that will help ensure environmentally 

sound monitoring and management of 

the sites. 

Designating an environmentally 

sound open-water disposal site to allow 

for and facilitate necessary dredging in 

the eastern region of Long Island Sound 

also will yield a number of public 

benefits. First, designating an 

environmentally sound disposal site 

will yield economic benefits. There are 

a large number of important navigationdependent businesses and industries in 

the eastern Long Island Sound region, 

ranging from shipping (especially the 

movement of petroleum fuels and the 

shipping of bulk materials), to 

recreational boating-related businesses, 

marine transportation, commercial and 

recreational fishing, interstate ferry 

operations, ship building, and military 

and public safety operations, such as 

those associated with the U.S. Naval 

Submarine Base in Groton and the U.S. 

Coast Guard facilities in New London. 

These businesses and industries 

contribute substantially to the region’s 

economic output, the gross state product 

(GSP) of the bordering states, and tax 

revenue. Continued access to navigation 

channels, 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. 

Second, preserving navigation channels, 

marinas, harbors, berthing areas, and 

other marine resources, improves the 

quality of life for residents and visitors 

to the eastern Long Island Sound region 

by facilitating recreational boating and 

associated activities, such as fishing and 

sightseeing. Finally, by facilitating 

dredging needed to support U.S. Navy 

and Coast Guard operations, designation 

of an open-water dredged material 

disposal site also supports national 

defense planning and operations as well 

as public safety. 

IV. Potentially Affected Entities 

Entities potentially affected by this 

action are persons, organizations, or 

government bodies seeking to dispose of 

dredged material in waters of eastern 

Long Island Sound, subject to the 

requirements of the MPRSA and/or the 

CWA and their implementing 

regulations. This rule is expected to be 

primarily of relevance to: (a) Private 

parties seeking permits from the USACE 

to transport more than 25,000 cubic 

yards of dredged material for the 

purpose of disposal into the waters of 

eastern Long Island Sound; (b) the 

USACE for its own dredged material 

disposal projects; and (c) other federal 

agencies seeking to dispose of dredged 

material in eastern Long Island Sound. 

Potentially affected entities and 

categories of entities that may seek to 

use the designated dredged material 

disposal site and would be subject to the 

proposed rule include: 

Category Examples of potentially affected entities 

Federal government .................................. USACE (Civil Works Projects), and other federal agencies. 

State, local, and tribal governments ......... Governments owning and/or responsible for ports, harbors, and/or berths, government agencies requiring disposal of dredged material associated with public works projects. 

Industry and general public ...................... Port authorities, shipyards and marine repair facilities, marinas and boatyards, and berth owners. 

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 this Final Rule. EPA notes 

that nothing in this rule alters the 

jurisdiction or authority of EPA, the 

USACE, or the types of entities 

regulated under the MPRSA and/or 

CWA. Questions regarding the 

applicability of this Final Rule to a 

particular entity should be directed to 

the contact person listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section. 

V. Disposal Site Description 

This rule designates the ELDS, but 

with site boundaries modified from 

those in the Proposed Rule, for openwater disposal of dredged material for 

several reasons. First, the entire ELDS is 

a containment site, which will protect 

the environment by retaining the 

dredged material within the site and, 

accordingly, will also support effective 

site management and monitoring. 

Second, the NLDS, which is 

immediately to the east of the ELDS, has 

been used for dredged material disposal 

for over 60 years, and monitoring of the 

NLDS over the past 35 years has 

determined that past and present 

management practices have been 

successful in minimizing short-term, 

long-term, and cumulative impacts to 

water quality and benthic habitat in this 

vicinity. EPA has determined that the 

ELDS also can be successfully managed. 

Third, designating the ELDS, which is 

immediately adjacent to the NLDS, 

would be consistent with USEPA’s 

ocean disposal regulations, which 

indicate a preference for designating 

disposal sites in areas that have been 

used in the past, rather than new, 

relatively undisturbed areas (40 CFR 

228.5(e)). 

Finally, in response to public 

comments, which are described further 

in Section VI (‘‘Summary of Public 

Comments and EPA’s Responses’’), EPA 

is designating an ELDS that has been 

relocated farther to the west and is 

smaller in size than the preferred 

alternative described in the Proposed 

Rule. Thus, the boundaries of the ELDS 

have been redrawn for this Final Rule. 

For the Proposed Rule, EPA proposed 

an ELDS with an estimated capacity of 

27 mcy based on an estimated need for 

disposal capacity of approximately 22.6 

mcy for material from the eastern region 

of the Sound, which in turn was based 

on the dredging needs assessment from 

the DMMP. See 81 FR 24750. EPA 

received comments stating that there 

was no need for a disposal site to be 

designated in the eastern region of Long 

Island Sound. As part of its 

consideration of, and response to, these 

comments, EPA requested the USACE 

prepare a more refined estimate of the 

dredged material disposal capacity 

needed for sediments projected to be 

dredged from the eastern region of the 

Sound. The USACE undertook this 

analysis and projected that a disposal 

capacity of approximately 20 mcy 

(based on water volume below a depth 

of 59 feet [18 meters] and slope 

calculations, with a buffer zone) would 

likely be sufficient. This estimate 

reflects a variety of factors, some of 

which involve an unavoidable degree of 

uncertainty. These factors include the 

following: Specific dredging projects 

currently projected within the region 

(including possible ‘‘improvement 

projects’’ to further deepen channels or 

berthing areas); how much of each type 

of material (e.g., sand, suitable and 

unsuitable fine-grained material) is 

estimated to be generated by each 

project; how much of this material is 

estimated to require open-water 

disposal; the possibility of increased 

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87824 Federal Register / Vol. 81, No. 234 / Tuesday, December 6, 2016 / Rules and Regulations 

dredging needs caused by larger-thannormal storms; and a ‘‘bulking factor’’ of 

approximately 10 percent. More 

specifically, the revised projected 

disposal capacity need of approximately 

20 mcy is based on the need to 

accommodate approximately 12.5 mcy 

of suitable fine-grained sediment; 2.8 

mcy from potential improvement 

(deepening) dredging projects; 1.8 mcy 

of shoal material resulting from extreme 

storm events; 1.1 mcy of sand 

(recognizing that beach nourishment 

may not be a practicable alternative for 

all 9.1 mcy of the projected sand); and 

160,000 cy for the excavation of 

Confined Aquatic Disposal cells (for 

material unsuitable for open-water 

disposal); for a total of 18,364,500 cy; 

and a bulking factor of approximately 10 

percent of the total, which brings the 

total to about 20 mcy. The ‘‘bulking 

factor’’ assumes that dredged material 

placed at a disposal site is relatively 

unconsolidated and, thus, will require 

more capacity when it is placed at a 

disposal site than it occupied when in 

it was in a consolidated state on the 

seafloor prior to dredging. EPA 

discussed this disposal capacity needs 

analysis with the USACE before, during, 

and after its development, and EPA has 

also independently assessed it. Based on 

all of this, EPA regards the disposal 

capacity needs analysis to be 

reasonable, especially in light of the 

unavoidable uncertainty associated with 

some of its elements. 

EPA also received comments 

opposing designation of the ELDS but 

expressing a willingness to accept the 

NBDS site, lying farther in Connecticut 

waters. EPA regards these comments to 

be at least suggestive of a desire to move 

the site farther from New York waters, 

while recognizing that such comments 

do not necessarily indicate an 

acceptance of an ELDS relocated to lie 

exclusively in Connecticut waters. In 

addition, EPA received comments 

supporting the ELDS but urging that its 

eastern boundary be pushed westward 

farther away from the submarine transit 

corridor in that area of the Sound. 

Finally, EPA received several comments 

opposing designation of the NBDS due 

to its proximity to the Millstone Power 

Plant. 

Taking all of these comments and the 

above dredged material disposal 

capacity needs analysis into account, 

EPA has redrawn the boundaries of the 

ELDS. The site has been moved to the 

west so that it avoids the submarine 

transit corridor. The entire site now also 

lies in Connecticut waters 

approximately 0.2 nm from New York 

waters. In addition, the northern and 

southern site boundaries were modified 

to avoid two areas of rocky outcroppings 

that might provide habitat for fish and 

other marine life that are attracted to 

‘‘structure’’ on the seafloor. EPA has 

determined that the reconfigured ELDS 

would provide approximately 20 mcy of 

disposal capacity, which will meet the 

disposal capacity need estimated by the 

USACE. 

The following site description is 

based on information in section 3.4.3 of 

the FSEIS and other support documents. 

Specifically, Figure 5.6 in the FSEIS 

show the location of the site and Table 

5–11 provides coordinates for the site 

boundaries. 

The ELDS, as described in the 

Proposed Rule, comprised 

approximately the western half of the 

existing NLDS, along with Sites NL-Wa 

and NL-Wb, which are adjacent areas 

immediately to the west of the NLDS. 

The ELDS now being designated 

excludes the NLDS entirely and 

encompasses most of former Site NL-Wa 

(excluding the northern bedrock area) 

and former Site NL-Wb (excluding the 

southern bedrock area) (see FSEIS, 

Figure 5.6). The ELDS combines these 

two areas, forming an irregularly-shaped 

polygon that is 1 x 1.5 nmi, but that 

excludes the two previously described 

bedrock areas for a total area of 

approximately 1.3 square nautical miles 

(nmi2). 

Water depths in the ELDS range from 

approximately 59 feet (18 m) in the 

north to 100 feet (30 m) in the south. 

The seafloor at the site consists of 

mostly flat, sandy areas, sloping 

gradually from north to south. However, 

there is an area of boulders and bedrock 

in the northern part of former Site NLWa that has been excluded from the 

reconfigured site boundaries due to its 

potential value as fisheries habitat. This 

boulder area may be a lag deposit of a 

glacial moraine. The water depth in 

parts of the boulder area is shallower 

than 59 feet (18 m). The southwestern 

corner of former Site NL-Wb also 

contains an area of bedrock and 

boulders, which is an extension of a 

larger area with a similar substrate 

further to the south. The reconfigured 

site boundaries also exclude this area of 

potentially high value fisheries habitat. 

The distance from the ELDS to the 

closest points of land and the state 

border are as follows: From the northern 

boundary to the Connecticut shoreline 

(specifically, Harkness Memorial State 

Park in Waterford, Connecticut, is 1.1 

nmi; from the southeastern corner to 

Fishers Island, New York, is 2.3 nmi; 

and from the southeastern corner to the 

Connecticut/New York state border is 

.19 nmi). 

VI. Summary of Public Comments and 

EPA’s Responses 

EPA received numerous comments on 

its proposed site designation as 

described in the DSEIS and Proposed 

Rule from federal and state elected 

officials in Connecticut, New York, and 

Rhode Island; the USACE; the U.S. 

Navy; the states of Connecticut and New 

York; a number of municipalities; 

environmental groups; harbor and 

marine trade groups; and many private 

citizens. EPA received comments both 

in support of and in opposition to its 

proposed action, with some offering 

suggested improvements. Documents 

containing copies of all of the public 

comments received by EPA and EPA’s 

response to each of the comments have 

been placed in the public docket and on 

the Web site identified in the ADDRESSES

section of this document. There was 

significant overlap among the comments 

received. Below, EPA summarizes the 

main points of the commenters and the 

Agency’s responses. 

Comment #1. EPA received many 

comments in support of the designation 

of ELDS from members of the 

Connecticut and Rhode Island 

Congressional delegations (including a 

separate submission from Congressman 

Joseph Courtney), the U.S. Navy, the 

Connecticut Department of Energy and 

Environmental Protection, the 

Connecticut Port Authority, the 

Connecticut Harbor Management 

Association, marina and boatyard 

operators, several local government 

officials, and private citizens. While 

many of these comments were of a 

general nature, some of the commenters 

also provided additional, specific 

comments related to the proposed 

action which are addressed in more 

detail farther below in this section. 

Response #1. EPA acknowledges the 

support provided for the Proposed Rule 

to designate the ELDS. 

Comment #2. EPA also received a 

number of nearly identical comments 

stating opposition to the DSEIS and the 

Proposed Rule to designate the ELDS, 

and dredged material disposal in Long 

Island Sound in general. These included 

comments from Congressman Lee 

Zeldin, Suffolk County Legislators Sarah 

Anker and Al Krupski, the Citizens 

Campaign for the Environment, the 

Fishers Island Conservancy, the Group 

for the East End, the East End Sailing 

Association, several local government 

officials, and private citizens. 

Some of these commenters found the 

DMMP to be inadequate, criticized the 

DMMP’s use of the Federal Standard in 

evaluating alternatives, criticized what 

they see as a lack of progress toward 

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reducing or eliminating dredged 

material disposal in Long Island Sound 

(and, conversely, a lack of progress in 

increasing beneficial use), and opposed 

the preferred alternative of designating 

the ELDS as a dredged material disposal 

site. Some of the commenters also 

provided additional, specific comments, 

which are addressed in more detail 

elsewhere in this section. 

Response #2. EPA acknowledges, but 

disagrees with, the opposition to the 

designation of the ELDS, and to the 

open-water disposal of dredged material 

in Long Island Sound in general, 

expressed by these commenters. At the 

same time, as discussed further in 

response to other comments in this 

section, EPA concludes that some 

amount of open-water disposal of 

dredged material into Long Island 

Sound will be necessary in the future 

because: (1) Dredging is essential to 

allow for safe navigation for 

recreational, commercial and military 

and public safety vessels in Long Island 

Sound, and (2) practicable alternatives 

to open-water disposal are unlikely to 

be sufficient to accommodate the 

amount of material projected to be 

dredged from the eastern region of Long 

Island Sound over the 30-year planning 

horizon. Furthermore, the ELDS is an 

environmentally appropriate disposal 

site and restrictions on the type of 

material that can be placed at the ELDS, 

coupled with regulatory requirements to 

use available practicable alternatives to 

open-water disposal, should ensure that 

any use of the disposal site is 

minimized and does not harm the 

environment. The Final Rule includes 

the same site use restrictions that were 

promulgated for the CLDS and WLDS 

and are designed to reduce or eliminate 

the disposal of dredged material into the 

waters of Long Island Sound. 

In response to concerns regarding the 

adequacy of the DMMP, EPA believes 

the DMMP provides useful information 

to help the agencies achieve the goal of 

reducing or eliminating the open-water 

disposal of dredged material in the 

Sound. To help realize this goal, the 

DMMP recommends standards and 

procedures for the agencies to use in the 

review of dredged material management 

proposals. In addition, the DMMP 

identifies and discusses a range of 

specific alternatives to open-water 

disposal for each of the 52 Federal 

Navigation Projects (FNPs) in Long 

Island Sound. The choice of which 

alternative (or alternatives) should be 

implemented for a specific dredging 

project will be made in the future based 

on the facts, law and policy that exist at 

the time of the decision. EPA has 

provided a more detailed discussion 

regarding the Federal Standard in the 

preamble to the final rule for the Central 

and Western Disposal Sites (81 FR 

44220) and in the complete Response to 

Comments document placed in the 

public docket and on the Web site 

identified in the ADDRESSES section of 

this document. 

Comment #3. Commenters provided a 

range of opinions on the need for a 

disposal site in Eastern Long Island 

Sound. Some commenters noted that 

dredging is necessary to ensure 

recreational boating and commercial 

shipping access to the waters of Long 

Island Sound. They point out that 

marinas, boatyards, and boat clubs 

provide the main access for the public 

to get out onto the Sound and these 

facilities must dredge periodically to 

maintain sufficient depth for safe 

berthing and navigation. In addition, 

they comment that dredging is vital to 

ensure the continued existence of 

commercial and recreational industries 

that generate billions of dollars of 

economic activity and support 

thousands of jobs around the Sound. 

They also note that dredging is 

important to support the function of 

national interest facilities, such as the 

Naval Submarine Base New London and 

U.S. Coast Guard facilities. These 

commenters conclude that the ELDS 

site, as proposed, will meet the dredging 

needs for the region over the next 30 

years and, therefore, there is no need to 

designate additional sites (such as the 

CSDS or NBDS). 

Other commenters conclude that the 

dredging needs in the DMMP are vastly 

overstated, and that there is no need for 

a disposal site in eastern Long Island 

Sound. In comments provided by the 

New York State Department of State 

(NYSDOS) and New York State 

Department of Environmental 

Conservation (NYSDEC), the 

departments noted that they did not 

think it was necessary to designate a site 

in the eastern region of Long Island 

Sound, but they also recognized the 

importance of providing stakeholders 

with a range of options for management 

of dredged material and recommended 

EPA designate the NBDS alternative and 

the NLDS as a ‘‘remediation site.’’ EPA 

received a letter from New York 

Governor Andrew Cuomo after the end 

of the comment period expressing 

opposition to any disposal site 

designation in eastern Long Island 

Sound. The Governor’s comments 

further state that the EPA and USACE 

are incorrectly seeking to justify an 

eastern site based on the assertion that 

there is inadequate capacity at the 

CLDS, WLDS, and Rhode Island Sound 

Disposal Site (RISDS). (Additional 

points in the Governor’s letter are 

addressed at Comment and Response #4 

below.) 

Response #3. EPA agrees that 

dredging is necessary to provide for safe 

navigation in and around Long Island 

Sound and acknowledges that the 

marine trade industry is an important 

contributor to the economies of both 

Connecticut and New York. EPA also 

agrees that dredging is necessary to 

provide recreational boating access to 

Long Island Sound. Recreational 

boating, and associated activities such 

as fishing and sightseeing, are important 

public uses of the Sound that improve 

the quality of life for residents and 

visitors alike, while also contributing to 

the local economy. EPA also notes that 

by helping to provide for safe 

navigation, not only does 

environmentally-sound dredging and 

dredged material management benefit 

commercial and recreational uses of 

Long Island Sound, but it also 

contributes to national security and 

public safety by facilitating navigation 

for U.S. Navy, U.S. Coast Guard, and 

other types of military and public safety 

vessels. 

EPA disagrees with the suggestion in 

the letter from NYSDOS and NYSDEC 

and the Governor’s letter that an eastern 

Long Island Sound disposal site is not 

needed because there is sufficient 

capacity at other already designated 

sites outside of the eastern Sound, such 

as the CLDS, WLDS, and RISDS. The 

USACE projected in the DMMP that 

dredging in Long Island Sound would 

generate approximately 52.9 mcy of 

material over the 30-year planning 

horizon, with approximately 30.3 mcy 

coming from the western and central 

regions, and 22.6 mcy from the eastern 

region. Of the 52.9 mcy, approximately 

3.3 mcy of material are projected to be 

unsuitable for open-water disposal, see 

81 FR 24750, leaving approximately 

49.6 mcy of material that could 

potentially be placed at an open-water 

disposal site, if necessary. Of this 49.6 

mcy, 15.2 mcy are projected to be sand 

that could potentially be used for 

beneficial uses, such as beach 

nourishment, while 34.4 is projected to 

be fine-grained material suitable for 

open-water disposal. Obviously, it is 

likely that beneficial uses, or some other 

upland management option, will be 

found for some amount of the sand, and 

even some amount of the fine-grained 

materials, but there is no guarantee of 

this and it is impossible to be sure in 

advance what these amounts will be. 

As noted in the DSEIS, the CLDS and 

WLDS are each estimated to have a 

disposal capacity of about 20 mcy. This 

40 mcy of capacity is not enough to take 

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the full 49.6 mcy of material that could 

require open-water disposal. The RISDS 

was designated in 2005 to serve the 

dredging needs of the Rhode Island and 

southeastern Massachusetts region. 

Furthermore, the predicted amounts 

of material to be managed are 

unavoidably imperfect estimates. The 

actual amounts of material to be 

managed could be higher (or lower) over 

the 30-year planning horizon, especially 

when unpredictable events such as large 

storms and possible improvement 

dredging needs are considered. 

Therefore, EPA deems it reasonable to 

take a conservative approach and 

designate sites to ensure adequate 

disposal capacity is available for all the 

projected material, recognizing that all 

the capacity might not end up being 

needed. Indeed, as per the site use 

restrictions, EPA will be working with 

others to try to find beneficial use 

options for dredged material to 

minimize how much disposal capacity 

is needed. 

Beyond the issue of having enough 

disposal capacity, EPA also determined 

that the CLDS, WLDS, and RISDS would 

not reasonably serve the needs of the 

eastern Long Island Sound region once 

the environmental effects, cost, 

environmental and safety risks, and 

logistical difficulties of using such 

distant sites were taken into account. 

Thus, part of the basis of EPA’s 

determination that a designated site is 

needed in eastern Long Island Sound is 

the longer transit distances from 

dredging centers in the region to the 

CLDS, WLDS, and RISDS. These longer 

trips would result in greater energy use, 

increased air emissions, increased risk 

of spills, more difficult project logistics, 

and greater cost. 

As part of its consideration of, and 

response to, comments asserting that no 

disposal site is needed in the eastern 

region of Long Island Sound, and 

comments urging that the size of any 

site be reduced or minimized, EPA 

asked the USACE to revisit once more 

its estimate of disposal capacity needs 

and prepare a more refined estimate of 

the dredged material disposal capacity 

needed for sediments projected to be 

dredged from the eastern region of the 

Sound. Although the values from the 

DMMP reflected substantial analysis 

and public input, the USACE agreed to 

reassess the capacity needs in 

coordination with EPA. The USACE 

undertook this analysis and projected 

that a disposal capacity of 

approximately 20 mcy would likely be 

sufficient to meet disposal needs over 

the next 30 years. 

Comment #4. EPA received a letter 

from New York Governor Andrew 

Cuomo (and undersigned by 32 federal 

and state elected officials) after the end 

of the comment period (dated August 4, 

2016). The Governor’s letter expresses 

opposition to any disposal site being 

designated in the eastern region of Long 

Island Sound and indicates his intent to 

legally challenge any EPA rule 

designating a disposal site in eastern 

Long Island Sound and seek to prevent 

any disposal pursuant to any such rule. 

The Governor states that this stance is 

consistent with the State of New York’s 

decades-long opposition to ‘‘the 

unabated dumping of dredged materials 

in Long Island Sound.’’ The letter also 

states that the designation of a site in 

eastern Long Island Sound is not 

necessary and may further impede 

progress toward reducing or eliminating 

open water disposal, a fundamental 

component of the rule. In addition, the 

letter indicates that the State of New 

York opposes the site designation based 

on comments provided by NYSDOS and 

NYSDEC in a joint letter. The letter 

further states that the EPA and USACE 

are incorrectly seeking to justify an 

eastern site based on the assertion that 

there is inadequate capacity at the 

WLDS, WLDS, and RISDS. 

Response #4. EPA is not legally 

obligated to consider and respond to the 

Governor’s comment letter in this 

rulemaking process and environmental 

review under NEPA because the letter 

was submitted after the close of the 

comment period. Nevertheless, EPA has 

reviewed and given careful 

consideration to the views presented by 

Governor Cuomo and provides a 

response here. 

EPA disagrees with the stance 

presented by the Governor’s letter. 

Without waiting to read EPA’s final 

analysis of whether an appropriate site 

can be identified, and whether there is 

a need for such a site to provide a 

dredged material disposal option to 

ensure that dredging needed to ensure 

safe navigation and suitable berthing 

areas for recreational, commercial, 

public safety and military vessels, the 

Governor expresses a plan to sue over 

any rule designating a site in the eastern 

region of Long Island Sound. 

While the Governor’s letter suggests 

that New York ‘‘has for decades 

opposed’’ dredged material disposal in 

Long Island Sound, the reality is more 

nuanced. Over the years, as with the 

Connecticut shore of the Sound, harbors 

and marinas on the New York shore of 

Long Island Sound have been dredged 

and in some cases the sediments have 

been placed at disposal sites in Long 

Island Sound, without objection from 

New York (e.g., Mamaroneck Harbor). 

At other times, NY has not objected as 

long as materials were not placed at the 

NLDS near to Fisher’s Island, NY, and 

were instead placed at the CLDS, just 

south of New Haven, Connecticut. At 

other times, when practicable 

alternatives were available, material 

dredged from New York waters has been 

managed at upland sites. The same is 

true for material dredged from 

Connecticut waters (i.e., that some 

material has been placed at open-water 

disposal sites, while other material has 

been managed at upland sites). 

Furthermore, in still other cases, the 

dredged material from particular 

projects has been analyzed and found to 

be unsuitable for open-water disposal 

and such material has been managed 

using methods other than open-water 

disposal (e.g., placement in a confined 

aquatic disposal [CAD] cell or confined 

disposal facility [CDF]). Thus, some 

suitable material from New York has 

been placed at open-water disposal 

sites, while some has been managed at 

upland locations (e.g., for beach 

nourishment) and unsuitable material 

has been managed without open-water 

disposal. EPA supports this type of 

overall approach (i.e., choosing a 

management method appropriate to the 

facts of each individual case from a 

menu of environmentally sound 

methods). 

Consistent with this more nuanced 

history, EPA believes these issues 

should be addressed based on their 

technical, factual, legal, and policy 

merits, rather than taking an across-theboard position for or against dredged 

material disposal in the waters of the 

Sound. EPA has found that the DMMP 

and the USACE’s more recent updated 

dredged material disposal capacity 

needs analysis clearly establish a need 

for a dredged material disposal site to be 

designated in the eastern region of the 

Sound. EPA’s analysis, in turn, 

establishes that the ELDS is an 

appropriate site for designation. This 

designation will provide an option for 

potential use for suitable material when 

practicable alternatives to open-water 

disposal are not available. Going 

forward, application of EPA’s sediment 

quality criteria will ensure that only 

environmentally suitable dredged 

material can be approved for open-water 

disposal. Moreover, EPA’s existing 

ocean dumping criteria concerning 

whether there is a need for open-water 

disposal, see 40 CFR 227.15 and 227.16, 

coupled with the new site use 

restrictions applicable to the WLDS, 

CLDS, and ELDS, see 40 CFR 

228.15(b)(4)–(6), will ensure that the 

open-water disposal option is used only 

when the material is found to be 

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suitable and no practicable alternatives 

to open-water disposal are available. 

EPA cannot and should not base a 

decision not to designate an 

environmentally appropriate disposal 

site on as of yet unidentified upland 

management options that might or 

might not materialize in the future for 

all the dredged material that needs to be 

managed. Such an approach would pose 

an irresponsible threat to safe navigation 

and the related recreational, 

commercial, public safety, and national 

defense activities that depend on it. If, 

upon EPA designation of the ELDS, 

there is no actual need for the site (i.e., 

practicable alternatives are available for 

every dredging project), then dredged 

material will not be placed there, as the 

practicable alternatives will be used 

instead. 

Contrary to the views in Governor 

Cuomo’s letter, the joint comment letter 

from the NYSDOS and NYSDEC 

expressed recognition of both the need 

for dredging to support water-dependent 

activities and navigation infrastructure 

and ‘‘the importance of providing 

stakeholders with a range of options for 

management of dredged material in 

LIS . . . .’’ Also contrary to the views 

expressed in the Governor’s letter, the 

NYSDOS/NYSDEC letter emphasizes 

the State of New York’s commitment to 

‘‘working with all partners to secure a 

path forward for achievable, measurable 

reductions in open water disposal over 

time . . . ,’’ and noted that the state 

had demonstrated this commitment by 

NYSDOS’s recent concurrence with 

EPA’s amended Final Rule designating 

the CLDS and WLDS, ‘‘which includes 

updated policies and procedures 

intended to meet this goal, and is 

subject to the additional restrictions 

agreed to by all Agencies involved.’’ The 

state agencies’ letter further pointed out 

that the ‘‘[t]he proposed rule for eastern 

LIS contains the same restrictions as 

those contained within the Final Rule 

for CLDS and WLDS, with the same 

ultimate goal of the reduction in open 

water disposal over time.’’ EPA agrees 

with NYSDOS and NYSDEC that the site 

use restrictions for the CLDS, WLDS, 

and ELDS are well designed to pursue 

and achieve the shared long-term goal of 

reducing or eliminating the open-water 

disposal of dredged material in Long 

Island Sound. At the same time, these 

restrictions do not obviate the need to 

designate an appropriate open-water 

disposal site in the eastern region of the 

Sound to provide an environmentally 

sound disposal option for material that 

cannot be managed in some other way. 

While the Governor states opposition 

and an intent to sue over any site being 

designated in the eastern region of the 

Sound, the NYSDOS/NYSDEC letter 

instead supports designating both the 

NBDS and the NLDS (as a ‘‘remediation 

site’’) to provide disposal options in the 

eastern Sound. EPA agrees that a 

disposal site should be designated in the 

eastern Sound, but concludes that 

designating the reconstituted ELDS is 

preferable to designating the NBDS and 

NLDS. 

With regard to the Governor’s 

concerns about the capacity at the 

CLDS, WLDS, and RISDS, see Response 

#3 above. 

Comment #5. Among those 

supporting the designation of ELDS, a 

number of commenters suggested 

revisions to the boundaries of the site 

for a variety of reasons. Some suggested 

modifying the northern boundary to 

avoid burial of rocky, hard-bottom areas 

that may provide relatively higher 

quality fish habitat, while others 

suggested moving the eastern boundary 

of the proposed ELDS to remove any 

portion of the site from the submarine 

transit corridor into the Thames River. 

Comments from NYSDOS and NYSDEC 

recommend buffer zones be established 

around bedrock and archeological areas 

and included in the Site Management 

and Monitoring Plan (SMMP) for the 

ELDS. 

Response #5. EPA agrees with the 

comments to modify the disposal site 

boundaries to avoid the bedrock and 

boulder areas and the submarine transit 

corridor. As discussed in detail above in 

Section V, EPA is designating the ELDS 

site with modifications to the 

boundaries. EPA has redrawn the 

boundaries of the ELDS to exclude both 

the rocky, hard-bottom area in the north 

central portion of the site, and another 

smaller rocky area in the southwestern 

corner of the site. Disposal in the ELDS 

near those areas will be carefully 

managed, including establishing a 100- 

meter buffer, to avoid any adverse 

impacts to these important habitat 

features. EPA also has shifted the 

eastern boundary of the ELDS to the 

west to remove it entirely from the 

submarine transit corridor. The eastern 

boundary of the ELDS site is now .367 

nmi west of the corridor. This shift of 

the site also has moved it entirely out 

of New York waters. 

Comment #6. USACE provided 

comments supporting designation of the 

Cornfield Shoals Disposal Site (CSDS). 

The USACE would like a cost-effective 

open-water alternative for the 

Connecticut River dredging center, and 

it states that the availability of the CSDS 

would help extend the useful life of the 

CLDS and ELDS by reducing reliance on 

those sites for placement of materials 

suitable for CSDS. Another commenter 

recommends designation of the CSDS to 

continue its role as a dispersal site for 

clean, sandy material in order to ‘‘take 

some pressure off’’ while supporting the 

designation of NBDS, both in lieu of 

ELDS. NYSDOS and NYSDEC opposed 

designation of CSDS because of the 

dispersive nature of the site. 

EPA received a joint letter from 

NYSDOS and NYSDEC that commented 

that there isn’t really a need for a site 

in eastern Long Island Sound based on 

historic disposal amounts and capacity 

at other existing sites like the CLDS, but 

recognized that some stakeholders in 

the region need one, so they recommend 

designation of the NBDS. They further 

recommended designation of the NLDS 

as a ‘‘remediation site.’’ EPA received 

comments from others expressing 

concern that designation of the NBDS 

would contribute to cumulative impacts 

to Niantic Bay, which is already stressed 

by the thermal discharge from the 

Millstone Nuclear Power Station. 

CTDEEP, while expressing support for 

ELDS, also indicated that NBDS, in 

combination with ELDS, is a viable 

option if adequate management 

practices are in place at the site to 

ensure containment of dredged 

materials. Another commenter 

reluctantly supported designating NBDS 

as the lesser of evils, while still other 

commenters opposed designation of the 

NLDS and wanted that site closed. EPA 

also received comments stating it 

should have given more consideration 

to designating a site outside Long Island 

Sound, including in deep open-ocean 

waters off Rhode Island and off the 

continental shelf. 

Response #6. While EPA did 

determine for the Proposed Rule that the 

CSDS meets the site selection criteria 

and could be designated in combination 

with one of the other alternatives, and 

did seek comments on that position, 

EPA ultimately decided not to designate 

the CSDS. EPA agrees that the site is 

dispersive and lies within a high energy 

area, which makes the site difficult to 

manage and monitor. Further, use of 

this site would need to be limited to 

receiving material such as sand, which 

EPA feels can and should typically be 

used for beneficial uses, instead, such as 

beach nourishment. Finally, EPA has 

concluded that designating a single site 

is preferable to designating multiple 

sites because dredged material 

placement would be concentrated in 

one area and site management and 

monitoring demands would be reduced. 

EPA also has concluded that the ELDS 

will provide an adequate open-water 

disposal option by itself, while the 

CSDS would be insufficient by itself 

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because of the restrictions for site use 

that EPA would place on it. 

Regarding the request to designate the 

NBDS, based on the dredging needs 

assessment conducted by the USACE for 

the DMMP, and the subsequent, more 

refined dredged material disposal 

capacity needs analysis by the USACE, 

EPA is confident that the ELDS is 

sufficient by itself to meet all the openwater disposal needs of the eastern Long 

Island Sound region and EPA prefers to 

designate a single site to serve the 

region. Therefore, there is no need to 

designate the NBDS, too. Moreover, 

designating a second site would entail 

additional monitoring and management 

work and expense that can be avoided. 

Finally, had EPA decided to designate 

the NBDS, it would only have 

designated the containment portion of 

the site to ensure containment of the 

dredged material, which does not 

provide enough capacity to meet the 

projected need. The question of whether 

designating the NBDS would cause 

adverse cumulative impacts on the 

ecology of Niantic Bay when viewed 

together with effects of the Millstone 

Nuclear Power Station thermal 

discharge is now moot because EPA is 

not designating the NBDS. With regard 

to consideration of sites outside of Long 

Island Sound, as discussed in Chapters 

3, 4, and 5 in the DSEIS and in the 

Proposed Rule, EPA considered a wide 

range of alternatives, including sites in 

Block Island Sound and on the 

continental shelf, before deciding to 

propose designation of the ELDS. The 

sites in Block Island Sound had a 

combination of significant marine 

habitats and strong tidal currents, and 

were relatively small or were located at 

a comparatively long distance from the 

dredging centers in the region. EPA’s 

evaluation also determined that the long 

distances and travel times between the 

dredging locations in eastern Long 

Island Sound and the continental shelf 

posed significant environmental, 

operational, safety, and financial 

concerns, rendering such options 

unreasonable. 

Finally, with regard to the suggestion 

that the NLDS be designated as a 

‘‘remediation site,’’ EPA disagrees. 

Long-term monitoring of the disposal 

mounds at the NLDS, and surveys 

conducted in 2013 at all the alternative 

sites, indicate a healthy and diverse 

benthic community and no evidence of 

levels of contamination that would 

require some sort of ‘‘remediation,’’ 

even if it could be determined what type 

of remediation would be appropriate for 

a site in relatively deep water. The 

ecological parameters and phyla data 

indicate that, overall, the NLDS has 

relatively good species diversity and is 

not dominated by just a few species. 

These data were consistent with 

observations at off-site locations outside 

of the NLDS, although the species 

richness was slightly lower at the offsite stations (FSEIS Section 4.9.3 and 

Table 4–11). Toxicity testing conducted 

in 2013 indicated no potential toxicity 

at the NLDS or other alternative sites 

(FSEIS Section 4.6.3 and (Table 4–9). 

Finally, the majority of the NLDS is 

already near capacity, with much of the 

site already at depths that would 

prevent further placement of dredged 

material. EPA is not designating the 

NLDS and that site will close by 

operation of law on December 23, 2016. 

Comment #7. NYSDOS and NYDDEC 

opined that there were deficiencies in 

the DSEIS, such as an inadequate 

alternatives analysis, the absence of 

comprehensive biological monitoring, 

and an inadequate cumulative impact 

assessment. They also suggested that 

comments they had provided earlier on 

draft sections of the DSEIS regarding 

physical oceanography and biological 

studies were not reflected in the final 

reports. They also expressed concern 

about the lack of information about the 

effectiveness of capping plans at the 

NLDS. 

Response #7. EPA finds the 

alternatives analysis, biological 

monitoring, and cumulative impact 

assessment were all more than adequate. 

The alternatives analysis included 

active and historic sites, as well as some 

other potential sites that had never been 

used before in eastern Long Island 

Sound, Block Island Sound, and off the 

continental shelf south of Long Island. 

EPA also considered use of the CLDS, 

WLDS, and/or the RISDS to serve the 

eastern region of the Sound. In addition, 

and as informed by the USACE’s 

DMMP, EPA considered beneficial use 

options and other non-open-water 

options such as confined disposal cells 

(CDFs) or facilities (CDFs). 

EPA’s cumulative impact assessment 

is based on over 40 years of monitoring 

data on chemistry, toxicity, 

bioaccumulation, benthic health, and 

bathymetry to assess physical and 

biological changes at the NLDS and 

CSDS sites. It also was based on an 

evaluation of the potential effects of 

designating the ELDS, NBDS, CSDS, or 

other site alternatives. Given that EPA 

has not found significant adverse effects 

from past disposal at the NLDS or CSDS, 

and does not anticipate significant 

adverse effects from the future 

placement of suitable material at the 

ELDS, it is not surprising that EPA did 

not find significant adverse cumulative 

impacts from the proposed action. EPA 

also considered issues such as the 

cumulative effect on bottom depths that 

would result from future disposal at the 

proposed disposal sites. 

EPA and the USACE will continue to 

manage and monitor all Long Island 

Sound disposal sites and will request 

input from the state agencies if there is 

evidence of any adverse impacts. If 

necessary, EPA and the USACE will 

modify the SMMPs for any site at which 

impacts have been identified, and 

would do so in consultation the states 

of New York and Connecticut and other 

interested parties, as appropriate. 

With respect to addressing comments 

received on various draft reports and 

documents during the development of 

the DSEIS, EPA did take all comments 

into consideration and in some cases 

modified those documents accordingly. 

In other cases, EPA may have decided 

that modifications were not warranted 

based on the comments submitted. EPA 

solicited input throughout the 

development of the DSEIS through a 

‘‘cooperating agency workgroup,’’ of 

which NYSDOS and NYSDEC were 

regular participants, and from the public 

through an extensive public 

involvement program. Agency and 

public input received during the threeand-a-half-year process was reflected in 

the DSEIS text or in the appendices or 

both. Regarding the idea of ‘‘capping’’ 

disposal mounds at the NLDS with new, 

clean dredged material, as discussed in 

Response #7 above, EPA does not see 

any reason to pursue this approach. 

Extensive long-term monitoring of the 

NLDS and surveys conducted in 2013 

for the DSEIS have documented a 

healthy benthic community at the site, 

with no toxicity in the sediment. 

Comment #8. Some of the 

commenters who support the Proposed 

Rule believe that the site use restrictions 

accompanying the site designation that 

establish, among other things, standards 

and procedures for identifying and 

utilizing alternatives to open-water 

disposal, will help achieve the goal of 

reducing or eliminating open-water 

disposal of dredged material wherever 

practicable. These commenters support 

the goal of reducing open-water 

placement of dredged material in the 

waters of Long Island Sound, but 

believe that it is not feasible or 

practicable at this time to handle all 

dredged material at upland locations or 

at already designated dredged material 

disposal sites. Some of those opposing 

the designation recommended upland 

placement and beneficial use of dredged 

material, rather than disposing of it at 

open-water sites. One commenter 

suggested ‘‘warehousing’’ material for 

future use in response to sea level rise, 

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another suggested consideration of onbarge dewatering as a tool to facilitate 

upland placement of dredged materials, 

and another commenter suggested the 

alternative of the creation of islands 

near their sources. 

Joint comments from NYSDOS and 

NYSDEC expressed commitment to 

‘‘working with all partners to secure a 

path forward for achievable, measurable 

reductions in open water disposal over 

time . . . ,’’ and noted that the state 

had demonstrated this commitment by 

NYSDOS’s recent concurrence with 

EPA’s amended Final Rule designating 

the Central and Western Long Island 

Sound Disposal Sites, ‘‘which includes 

updated policies and procedures 

intended to help meet this goal, and is 

subject to the additional restrictions 

agreed to by all Agencies involved.’’ The 

state departments’ letter further pointed 

out that the ‘‘[t]he proposed rule for 

eastern LIS contains the same 

restrictions as those contained within 

the Final Rule for CLDS and WLDS, 

with the same ultimate goal of the 

reduction in open water disposal over 

time.’’ 

Response #8. EPA agrees with the 

comment that the standards and 

procedures in the Final Rule will 

support the goal of eliminating or 

reducing open-water disposal. EPA also 

agrees that relying solely on upland 

management alternatives for all dredged 

material from the eastern region of the 

Sound is not feasible at this time. Such 

alternatives will, however, likely be 

feasible for some of that material. For 

example, sandy material is commonly 

used for beach and nearshore bar 

nourishment at the present time and the 

standards in the Final Rule expect that 

sandy material will continue to be used 

beneficially. In addition, it would be 

impracticable to rely on distant openwater sites outside the eastern region of 

the Sound, or on contained in-water 

disposal, for all dredged material from 

the eastern Sound. See 40 CFR 227.15 

and 227.16(b). 

Ultimately, decisions about how 

particular dredged material will be 

managed will be made in individual 

project-specific reviews under the 

MPRSA and/or the CWA, with 

additional overview and coordination 

provided by the Long Island Sound 

Steering Committee and Regional 

Dredging Team (RDT), as described in 

the site use restrictions. The Steering 

Committee and RDT have a number of 

important roles specified in the site use 

for the ELDS, including the 

identification and piloting of beneficial 

use alternatives, identifying possible 

resources to support those alternatives, 

and eliminating regulatory barriers, as 

appropriate. EPA expects that the 

Steering Committee and RDT will, 

generally and on a project specific basis, 

facilitate the process of matching 

projects, beneficial use alternatives and 

the resources necessary to implement 

them. The process of continually 

seeking new alternative uses for dredged 

material will provide the opportunity to 

evaluate approaches not yet fully 

developed, such as the ‘‘warehousing’’ 

suggestion. EPA views on-barge 

dewatering as a technique that, while 

expensive, has promise and should be 

explored and further evaluated by the 

Steering Committee and RDT. 

Ultimately, it could be become a useful 

technique for dewatering dredged 

material to prepare it for management 

using methods other than open-water 

disposal. Managing dredged material by 

using it to create islands was evaluated 

in the DMMP. The concept of creating 

islands in waters of the United States 

raises numerous issues (e.g., 

environmental, water quality, 

regulatory) and any proposal of this type 

would need to go through a very 

involved regulatory process and would 

have to meet all legal requirements. This 

is something the Steering Committee 

and the RDT can consider in the future 

if a proposal is developed. 

EPA agrees with the NY departments 

that the new site use restrictions, agreed 

upon by the interested state and federal 

agencies and inserted into the CLDS/ 

WLDS regulations, include standards 

and procedures to secure a path forward 

for achievable, measurable reductions in 

open-water disposal over time. EPA also 

agrees that these same restrictions are 

now also being applied to the ELDS. In 

EPA’s view, it makes sense to treat all 

regions of Long Island Sound the same 

in this regard. 

Comment #9. EPA received a number 

of comments concerning potential 

impacts on aquatic species including 

fish, lobsters and oysters. Some 

expressed concern that the DSEIS: (1) 

Incorrectly portrays eastern Long Island 

Sound as ‘‘a barren desert with barely 

any fish or shellfish species,’’ based in 

part on what they characterized as an 

inadequate data collection effort; (2) 

‘‘glosses over’’ the fact that parts of the 

area are federally-designated Essential 

Fish Habitat (EFH); and (3) minimizes 

the potential impacts of dredged 

material disposal on ‘‘struggling lobster 

populations.’’ Another commenter 

noted that the NLDS is adjacent to 

Fisher’s Island, NY, where oyster 

harvesting has been a way of life for 

centuries, and the threat to water quality 

posed by an expansion of open-water 

dumping at this site translates directly 

to a loss of important seafood jobs. 

Response #9. With respect to 

comments about EPA’s 

mischaracterization of eastern Long 

Island Sound in terms of biological 

productivity, there was extensive 

documentation in the DSEIS and its 

supporting technical reports supporting 

the conclusion that, while this region is 

generally a highly productive and 

diverse ecosystem, the area in which the 

ELDS is sited is less so. Compared with 

some of the hard-bottom, bedrock and 

boulder areas in other parts of the 

region, the seafloor in the ELDS is 

relatively flat and sandy, without the 

sort of structure that typically supports 

a large diversity of fish or shellfish. At 

the same time, EPA has excluded two 

areas from the ELDS that do include the 

type of hard-bottom, bedrock and 

boulder conditions that tend to provide 

relatively better marine habitat. As for 

concerns about the data on fishing 

activity, EPA made an extensive effort to 

encourage as many fisherman as 

possible to respond to the survey in 

order to provide information that was as 

accurate as possible for analysis. The 

survey was made available for 37 days 

and, as noted in the DSEIS, it was 

distributed via multiple media avenues. 

Of 440 respondents, only 229 surveys 

provided sufficient information (at least 

five questions answered), and very few 

provided location-specific information 

as to where they fished. Of the 229 

respondents, only six percent indicated 

they fished near dredged material 

disposal sites (one percent regularly and 

five percent occasionally). There is no 

shellfishing in this area, and the closest 

shellfish aquaculture operation is 

several miles west of the ELDS and 

closer to shore. 

EPA did not gloss over the existence 

of EFH in the vicinity of the ELDS. As 

required by the Magnuson-Stevens 

Fisheries Conservation and Management 

Act, EPA coordinated with the NOAA 

National Marine Fisheries Service 

(NMFS) to determine whether its 

proposal to designate the ELDS would 

cause adverse impacts to EFH. NMFS 

concurred with EPA’s determination 

that the designation of the ELDS would 

not adversely affect EFH. The 

coordination process is fully 

documented in the DSEIS. 

EPA assessed lobster abundance in 

the DSEIS and found that alternative 

sites do not contain preferred habitat for 

lobsters. Prior to 1999, lobsters were 

very abundant throughout Long Island 

Sound, and particularly in the western 

and central regions. However since the 

major lobster die-off in 1999, lobsters 

are far less abundant through the Sound, 

and found primarily in the deeper 

waters of the central basin and The 

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Race. The 1999 lobster die-off prompted 

millions of dollars in research over the 

past 16 years, the results of which have 

led scientists and resource managers to 

believe that the phenomenon was 

caused by a combination of factors, 

including increased water temperatures, 

low dissolved oxygen levels (hypoxia), 

a parasitic disease (paramoeba), and 

possibly pesticide runoff. Researchers 

have not cited dredged material disposal 

as a possible factor in the die-off. 

EPA does not agree that designating 

the ELDS will threaten oystering and the 

way-of-life of residents of Fisher’s 

Island, NY, or cause the loss of jobs in 

the seafood industry. The boundaries of 

the ELDS have been revised so that it is 

farther from Fisher’s Island, entirely 

outside of the NLDS, and entirely 

outside of New York State waters. EPA’s 

evaluation of the ELDS indicates that 

designation of the site will not cause 

significant adverse effects to water 

quality or aquatic organisms or their 

habitat. As a result, the site designation 

will not cause lost jobs in the seafood 

industry. To the contrary, designation of 

the ELDS may assist the local seafood 

industry. Fishing vessels require 

adequate navigation channels and 

berthing areas, which are maintained as 

a result of dredging. Designation of the 

ELDS should facilitate needed dredging 

by providing an open-water disposal 

option for use when practicable 

alternative management methods are not 

available. 

Comment #10. Some of those 

opposing the Proposed Rule stated that 

the dredged material is toxic and should 

not be placed in the waters of Long 

Island Sound, and requested 

remediation of such dredged material. 

Commenters questioned the use of older 

data to support the evaluation of 

dredged material for its suitability for 

open-water disposal. Some commenters 

noted concern with the introduction of 

nitrogen from dredged material into the 

system and requested that EPA estimate 

the quantity of nitrogen that would be 

added to the system from dredged 

material over the next 30 years. EPA 

also received comments regarding 

concern due to metal or organic 

contaminant concentrations in sediment 

and benthic organism tissues, elevated 

breast cancer rates in East Lyme, and 

closed shellfish harvesting areas 

following rainfall. Some commenters 

suggested that the CTDEEP Remediation 

Standard Regulations should be 

followed for disposal of dredged 

material in Long Island Sound. 

Response #10. EPA strongly disagrees 

with the suggestion that toxic sediments 

will be disposed of at the ELDS. Neither 

the existing laws and regulations nor the 

Final Rule would allow the disposal of 

toxic material at the sites. Rigorous 

physical, chemical, and biological 

testing and analysis of sediments is 

conducted prior to any authorization to 

dredge. The MPRSA and EPA’s ocean 

dumping regulations provide that 

sediments that do not pass these tests 

are considered ‘‘unsuitable’’ and shall 

not be disposed of at the site. 

EPA believes concerns about the 

disposal of toxic sediments at the NLDS 

and other Long Island Sound disposal 

sites also have been addressed by the 

USACE’s DAMOS program, which has 

collected data at these sites since the 

late 1970s. The program has generated 

over 200 detailed reports addressing 

questions and concerns related to 

placement of dredged material in the 

Sound. These reports indicate that toxic 

sediments are not being placed at openwater disposal sites. Moreover, 

sequential surveys of biological 

conditions at sites following the 

placement of dredged material 

consistently show a rapid recovery of 

the benthic community to that of the 

surrounding habitat outside the disposal 

sites. Monitoring at the NLDS has 

verified that past management practices 

have been successful in adequately 

controlling any potential adverse 

impacts to water quality and benthic 

habitat. 

Furthermore, water and sediment 

quality have improved in Long Island 

Sound as a result of improvements in 

the control of point source and nonpoint source pollutant discharges to the 

Sound and its tributaries. At the same 

time, dredging and dredged material 

management are carefully controlled by 

federal and state agencies to optimize 

environmental results using tools such 

as ‘‘environmental windows’’ that 

preclude dredging when sensitive 

aquatic organisms in the vicinity of 

dredging operations would be at an 

increased risk of being harmed, CAD 

cells or CDFs that sequester unsuitable 

dredged material, and beneficial use 

projects that avoid open-water disposal 

of dredged material that can be better 

put to an alternative use (e.g., using 

sand for beach nourishment). This 

management approach is reflected in the 

site use restrictions for ELDS that are 

intended to reduce or eliminate the 

open-water disposal of dredged material 

into Long Island Sound by promoting 

and facilitating the use of available 

practicable alternatives to such openwater disposal. 

Potential risks associated with the 

bioaccumulation of chemicals from 

sediments at the alternative sites were 

evaluated by comparing contaminant 

concentrations in tissues of test 

organisms to Federal Drug 

Administration (FDA) Action/Tolerance 

Levels for an assessment of potential 

human health impacts and to Ecological 

Effect Values for an assessment of 

ecological impacts. Ecological Effects 

Values represent tissue contaminant 

concentrations believed to be safe for 

aquatic organisms, generally derived 

from the final chronic value of USEPA 

water quality criteria. The FDA Action/ 

Tolerance Levels and Ecological Effect 

Values are commonly used by USEPA 

and USACE in the dredging program to 

assess risk. This evaluation considers 

that tissue contaminant concentrations 

that do not exceed FDA Action/ 

Tolerance Levels or Ecological Effect 

Values do not result in a potential 

human health or ecological risk. There 

is no evidence in the current literature 

or other data evaluated by EPA to 

support a causative link between any 

elevated cancer rates that may exist in 

East Lyme and dredged material 

disposal in Long Island Sound. 

Shellfish bed closures are typically a 

result of bacterial contamination from 

untreated or poorly treated sanitary 

wastewater, stormwater runoff, marine 

biotoxins, or elevated water 

temperatures. There is no evidence that 

shellfish harvesting in Long Island 

Sound, most of which is from 

aquaculture operations conducted in 

open waters off the coast, is, or will be, 

affected by dredged material disposal at 

the ELDS. 

Regarding comments about older 

studies referenced in the DSEIS, such as 

those conducted in support of the 2004 

EIS that supported the designation of 

the CLDS and WLDS, EPA used the best 

available literature during the 

development of the DSEIS. Some of this 

material was older and some was more 

recent. EPA also has included as part of 

the FSEIS relevant data from more 

recent studies (such as fisheries data) 

that were not available at the time the 

DSEIS was published. In all cases, EPA 

evaluated whether the data was relevant 

and appropriate for addressing whatever 

issue was at hand. While some 

parameters may change constantly, 

others remain consistent for long 

periods of time. Typically, older data 

were supplemented with newer data, or 

juxtaposed to newer data, to help depict 

trends and patterns in the study area. 

As to the concern about dredged 

material disposal in Long Island Sound 

contributing to nitrogen loading in these 

waters, EPA notes that nitrogen loading 

is a concern due to its potential to help 

fuel excessive algae levels, which could 

be one potential driver of hypoxia in 

western Long Island Sound. In Chapter 

5.2.1 of the DSEIS, however, EPA 

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discussed the relative insignificance of 

nitrogen loading from dredged material 

disposal. The USACE also addressed the 

issue in Section 3.5.2 of the DMMP. The 

annual placement of dredged material at 

the open-water sites is estimated to add 

less than one tenth of one percent of the 

overall annual nitrogen loading to Long 

Island Sound. 

Finally, EPA disagrees with the 

request to follow the CTDEEP 

Remediation Standard Regulations 

(RSRs). The RSRs are not applicable to 

dredged material from marine waters 

placed at open-water disposal sites. 

Rather, they ‘‘identify the technical 

standards for the remediation of 

environmental pollution at hazardous 

waste sites and other properties that 

have been subject to a spill, release or 

discharge of hazardous wastes or 

hazardous substances.’’ The MPRSA 

and Ocean Dumping Regulations limit 

the potential for adverse environmental 

impacts associated with dredged 

material disposal by requiring that the 

dredged material from each proposed 

dredging project be subject to sediment 

testing requirements. Suitability is 

determined by analyzing the sediments 

proposed for dredging for their physical 

characteristics as well as for toxicity and 

bioaccumulation. If it is determined that 

the sediment is unsuitable for openwater disposal—that is, that it may 

unreasonably degrade or endanger 

human health or the marine 

environment—it cannot be placed at 

disposal sites designated under the 

MPRSA. 

Comment #11. EPA received 

comments from the Shinnecock Tribal 

Nation noting the tribe’s longstanding 

reliance on the waters of Long Island 

Sound for ‘‘food, travel and spiritual 

renewal.’’ The Shinnecock have high 

regard for these waters and, as a steward 

for this resource, feel a shared 

responsibility to protect it and to speak 

for other life forms that rely on it but 

cannot speak for themselves. The 

Shinnecock’s comments note that work 

is beginning to investigate whether 

‘‘submerged paleo cultural landscapes’’ 

exist that would indicate that the tribe’s 

ancestors lived farther offshore than 

currently understood. The tribe 

expresses concern that dredged material 

placement at an open-water site could 

further bury any evidence of such sites. 

The tribe also expresses concern over 

how long it takes aquatic organisms to 

recover from open-water placement of 

dredged material and whether such 

placement at a designated site will 

adversely affect whales. Finally, the 

Shinnecock note that their concern over 

water pollution is related to their 

historic use of Long Island Sound as a 

travel route, which they still use for 

canoe journeys. 

Response #11. EPA acknowledges and 

respects the Shinnecock Tribal Nation’s 

stewardship, concern, and reliance 

upon the waters of Long Island Sound. 

As tasked by Congress under the CWA 

and MPRSA, EPA also is a steward of 

Long Island Sound with a mission of 

protecting its physical, chemical, and 

biological integrity, and protecting 

human and ecological health from harm 

that could result from the disposal of 

material into these waters. As a result, 

EPA believes that its goals align well 

with the environmental interests of the 

Shinnecock Tribal Nation. 

With regard to the possibility that 

dredged material disposal might further 

bury submerged evidence of settlements 

of the Shinnecock’s ancestors, EPA 

notes that it is currently unaware of any 

specific reason to believe that such 

submerged evidence may exist at the 

ELDS or the other site alternatives. In 

evaluating site alternatives, EPA 

considered the site selection criteria in 

EPA’s regulations, which include 

whether ‘‘any significant natural or 

cultural features of historical 

importance’’ may exist ‘‘at or in close 

proximity to’’ the disposal sites. See 40 

CFR 228.6(a)(11). EPA’s consideration of 

this criterion dovetailed with its 

consultation with the State Historic 

Preservation Officers of both 

Connecticut and New York, as well as 

its consultation with the Shinnecock 

Indian Nation. In addition, EPA 

conducted side-scan sonar survey work 

to look for possible historic resources in 

the area of the disposal sites and none 

of this work identified any 

archaeological or historical artifacts of 

cultural significance. If later 

investigations identify the presence of 

submerged artifacts of cultural 

importance to the Shinnecock Indian 

Nation, EPA will consult with the tribe 

regarding how to respond appropriately 

in terms of the future use and 

management of the site. 

As discussed in detail elsewhere in 

the preamble, no significant adverse 

effects will occur to water quality, 

habitat value, or marine organisms, as a 

result of using the ELDS as a dredged 

material disposal site. With regard to the 

concern expressed about possible 

impacts to whales, EPA evaluated the 

potential for the site designation to 

affect endangered species, including 

whales, and concluded that adverse 

effects to whales or their critical habitat 

were unlikely to result from the site 

designation. The National Marine 

Fisheries Service concurred with EPA’s 

conclusion. 

Finally, regarding the Shinnecock 

using the waters of Long Island Sound 

for canoe journeys, nothing about the 

designation of the ELDS should interfere 

with or preclude such journeys. First, 

the dredging (and therefore dredged 

material disposal) season is restricted to 

avoid the warmer weather months for 

ecological reasons, but this also ensures 

that dredging traffic and disposal is less 

likely to interfere with other boating 

activities that tend to be occur during 

warmer weather. Second, any dredged 

material disposal would be concentrated 

in one offshore area as a result of 

designating the ELDS. This would tend 

to minimize any conflicts with nondredging-related navigation. Finally, 

multiple types of navigational activities 

(e.g., recreational, commercial, military) 

have coexisted with dredged material 

disposal-related navigation for years in 

Long Island Sound and EPA expects 

that this will continue after designation 

of the ELDS. 

Comment #12. EPA received a 

number of very specific and detailed 

comments on aspects of the studies and 

findings in the DSEIS and its 

appendices. Subjects included the 

physical oceanography study in 

Appendix C, physical energy and 

hydrodynamics, sediments, and tidal 

energy projects, among others. 

Response #12. EPA’s detailed 

responses to these comments are 

contained in the Response to Comments 

document that is included in the FSEIS 

as Appendix J and placed in the public 

docket and on the Web site identified in 

the ADDRESSES section of this document. 

VII. Changes From Proposed Rule 

In response to public comment, as 

previously described, EPA has made 

certain adjustments to the boundaries of 

the ELDS as it was proposed. These 

adjustments have reduced the size of the 

ELDS from approximately 1 x 2 nm to 

approximately 1 x 1.5 nm (and an area 

of 1.3 nmi2), and the capacity of the site 

from 27 mcy to approximately 20 mcy. 

The specific boundary adjustments and 

the reasons for them have been 

discussed above and are further 

discussed below. 

EPA also has decided not to designate 

the NBDS or CSDS. In the Proposed 

Rule, EPA did not propose to designate 

either of these two sites, but did request 

public comment on whether either or 

both ought to be designated in addition 

to, or instead of, the ELDS. EPA 

received some public comments 

favoring designation of the NBDS or 

CSDS, and other comments opposing 

the designation of either site. Some 

commenters favored designation of the 

ELDS, while others commented that no 

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designated disposal site was needed in 

the eastern portion of the Sound. After 

considering all these comments, EPA 

decided to designate only the ELDS. 

This decision was based primarily on 

the Agency’s determination that one site 

is sufficient to meet the dredging needs 

of the eastern Long Island Sound region, 

and that the ELDS is the best site when 

evaluated in light of the site selection 

criteria in the Ocean Dumping 

Regulations. EPA also received public 

comments that support this decision. 

The Final Rule for the ELDS, as with 

the Proposed Rule, incorporates by 

reference the site use restrictions, 

including the standards and procedures, 

contained in the final amended site 

designation rule for the Central and 

Western Long Island Sound dredged 

material disposal sites. These 

restrictions are further described in 

Section IX (‘‘Restrictions’’). 

VIII. Compliance With Statutory and 

Regulatory Authorities 

EPA has conducted the dredged 

material disposal site designation 

process consistent with the 

requirements of the MPRSA, NEPA, 

CZMA, the Endangered Species Act 

(ESA), the Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSFCMA), and any other applicable 

legal requirements. 

A. Marine Protection, Research, and 

Sanctuaries Act 

Section 102(c) of the MPRSA, as 

amended, 33 U.S.C. 1412(c), et seq., 

gives the Administrator of EPA 

authority to designate sites where ocean 

disposal of dredged material may be 

permitted. See also 33 U.S.C. 1413(b) 

and 40 CFR 228.4(e). Neither statute nor 

regulation specifically limits how long 

an EPA-designated disposal site may be 

used. Thus, EPA site designations can 

be for an indefinite term and are 

generally thought of as long-term 

designations. EPA may, however, place 

various restrictions or limits on the use 

of a site based on the site’s capacity to 

accommodate dredged material or other 

environmental concerns. See 33 U.S.C. 

1412(c). 

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 the absence 

of an available EPA-designated site, 

however, the USACE is authorized to 

‘‘select’’ appropriate disposal sites. 

There are currently no EPA-designated 

dredged material disposal sites in the 

eastern portion of Long Island Sound. 

There are two active USACE-selected 

sites in that region, the NLDS and CSDS, 

but neither will be available after 

December 23, 2016, when their 

Congressionally-authorized term of use 

expires. 

The Ocean Dumping Regulations, see 

generally 40 CFR subchapter H, 

prescribe general and specific criteria at 

40 CFR 228.5 and 228.6, respectively, to 

guide EPA’s choice of disposal sites for 

final designation. Ocean dumping sites 

designated on a final basis are 

promulgated by EPA at 40 CFR 228.15. 

See 40 CFR 228.4(e)(1). Section 102(c) of 

the MPRSA, 33 U.S.C. 1412(c), and 40 

CFR 228.3 also establish requirements 

for EPA’s ongoing management and 

monitoring, in conjunction with the 

USACE, of disposal sites designated by 

EPA. This enables EPA to ensure that 

unacceptable, adverse environmental 

impacts do not occur from the 

placement of dredged material at 

designated sites. Examples of site 

management and monitoring measures 

employed by EPA and the USACE 

include the following: Regulating the 

times, rates, and methods of disposal, as 

well as the quantities and types of 

material that may be disposed; 

conducting pre- and post-disposal 

monitoring of sites; conducting disposal 

site evaluation studies; and, if 

warranted, recommending modification 

of site use and/or designation 

conditions and restrictions. See also 40 

CFR 228.7, 228.8, 228.9. 

A disposal site designation by EPA 

does not actually authorize the disposal 

of particular dredged material at that 

site. It only makes the site available as 

a possible management option if various 

other conditions are met first. Disposal 

of dredged material at a designated site 

must first be authorized by the USACE 

under MPRSA section 103(b), subject to 

EPA review under MPRSA 103(c). 

USACE authorization can only be 

granted if: (1) It is determined that there 

is a need for open-water disposal for 

that project (i.e., that there are no 

practicable alternatives to such disposal 

that would cause less harm to the 

environment); and (2) the dredged 

material is found suitable for openwater disposal by satisfying the 

applicable environmental criteria 

specified in EPA’s regulations at 40 CFR 

part 227. See 40 CFR 227.1(b), 227.2, 

227.3, 227.5, 227.6 and 227.16. An 

authorization for disposal also must 

satisfy other applicable legal 

requirements, such as those under the 

ESA, the MSFCMA, the CWA (including 

any applicable state water quality 

standards), NEPA, and the CZMA. The 

text below discusses EPA’s evaluation of 

the ELDS for this Final Rule using the 

applicable site selection criteria from 

EPA’s MPRSA regulations. It also 

discusses the Agency’s compliance with 

site management and monitoring 

requirements. 

EPA’s evaluation considered whether 

there was a need to designate one or 

more disposal sites for long-term 

dredged material disposal, including an 

assessment of whether other dredged 

material management methods could 

reasonably be judged to obviate the need 

for such designations. From this 

evaluation, EPA concluded that one or 

more open-water disposal sites were 

needed. EPA then assessed whether 

sites were available that would satisfy 

the applicable environmental criteria to 

support a site designation under 

MPRSA section 102(c). In deciding to 

designate the ELDS, as specified in this 

Final Rule, EPA complied with all 

applicable procedural requirements and 

substantive criteria under the MPRSA 

and EPA regulations. 

1. Procedural Requirements 

MPRSA sections 102(c) and 103(b) 

indicate that EPA may designate ocean 

disposal sites for dredged material. EPA 

regulations at 40 CFR 228.4(e) specify 

that dredged material disposal sites will 

be ‘‘designated by EPA promulgation in 

this [40 CFR] part 228 . . . .’’ EPA 

regulations at 40 CFR 228.6(b) direct 

that if an EIS is prepared by EPA to 

assess the proposed designation of one 

or more disposal sites, it should include 

the results of an environmental 

evaluation of the proposed disposal 

site(s). In addition, the Draft SEIS 

(DSEIS) should be presented to the 

public along with a proposed rule for 

the proposed disposal site 

designation(s), and a Final SEIS (FSEIS) 

should be provided at the time of final 

rulemaking for the site designation. 

EPA has complied with all procedural 

requirements. The Agency prepared a 

thorough environmental evaluation of 

the site proposed for designation and 

other alternative sites and courses of 

action (including the option of not 

designating an open-water disposal 

site). This evaluation was first presented 

in a DSEIS (and related documents) and 

a Proposed Rule for promulgation of the 

disposal sites. EPA published the 

Proposed Rule and a notice of 

availability of the DSEIS (81 FR 24748) 

for a 60-day public comment period on 

April 27, 2016, and subsequently 

extended the comment period by 21 

days (to July 18, 2016) to give the public 

additional time to comment on the 

proposed site designation. By this Final 

Rule, EPA is now completing the 

designation of the ELDS by 

promulgation in 40 CFR part 228. 

Finally, MPRSA sections 102(c)(3) 

and (4) dictate that EPA must, in 

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conjunction with the USACE, develop a 

site management plan for each dredged 

material disposal site it proposes to 

designate. MPRSA section 102(c)(3) also 

states that in the course of developing 

such management plans, EPA and the 

USACE must provide an opportunity for 

public comment. EPA and the USACE 

have met this obligation by publishing 

for public review and comment a Draft 

SMMP for the ELDS. The Draft SMMP 

was published with the DSEIS (as 

Appendix I) and the proposed rule on 

April 27, 2016. After considering public 

comments regarding the SMMP, EPA 

and the USACE are publishing the Final 

SMMP for the ELDS as Appendix I of 

the FSEIS. 

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. See 40 CFR 

228.4(e), 228.5 and 228.6. EPA’s 

evaluation of the ELDS with respect to 

the four general and 11 specific criteria 

was discussed in the DSEIS and the 

Proposed Rule and is further discussed 

in detail in the FSEIS and supporting 

documents and is summarized below. 

a. General Criteria (40 CFR 228.5) 

EPA has determined that the ELDS 

satisfies the four general criteria 

specified in 40 CFR 228.5. This is 

discussed in Chapter 5 and summarized 

in Table 5–9, ‘‘Summary of Impacts for 

Action and No Action Alternatives of 

the FSEIS.’’ 

i. Sites must be selected to minimize 

interference with other activities in the 

marine environment, particularly 

avoiding areas of existing fisheries or 

shellfisheries, and regions of heavy 

commercial or recreational navigation 

(40 CFR 228.5(a)). 

EPA’s evaluation determined that use 

of the ELDS—as modified in this Final 

Rule in response to public comments 

and further evaluation—would cause 

minimal interference with the aquatic 

activities identified in this criterion. 

The site is not located in shipping lanes 

or any other region of heavy commercial 

or recreational navigation. In addition, 

the site is not located in an area that is 

important for commercial or 

recreational fishing or shellfish 

harvesting. Analysis of this data 

indicated that use of the site would have 

minimal potential for interfering with 

other existing or ongoing uses of the 

marine environment in and around the 

ELDS, including lobster harvesting or 

fishing activities. In addition, the nearby 

NLDS has been used for dredged 

material disposal for many years; not 

only has this activity not significantly 

interfered with the uses identified in 

this criterion, but mariners in the area 

are accustomed to dealing with the 

presence of a dredged material disposal 

site. With the adjustment to the eastern 

boundary of the ELDS, EPA is even 

more confident that the site will not 

pose a hazard to navigation. Finally, 

time-of-year restrictions (also known as 

‘‘environmental windows’’) imposed to 

protect fishery resources will typically 

limit dredged material disposal 

activities to the months of October 

through April, thus further minimizing 

any possibility of interference with the 

various activities specified in this 

criterion. 

ii. Sites must be situated such that 

temporary perturbations to water quality 

or other environmental conditions 

during initial mixing caused by disposal 

operations would be reduced to normal 

ambient levels or to undetectable 

contaminant concentrations or effects 

before reaching any beach, shoreline, 

marine sanctuary, or known 

geographically limited fishery or 

shellfishery (40 CFR 228.5(b)). 

EPA’s analysis concludes that the 

ELDS, as adjusted for this Final Rule, 

satisfies this criterion. First, the site is 

a significant distance from any beach, 

shoreline, marine sanctuary (in fact, 

there are no federally-designated marine 

sanctuaries in Long Island Sound), or 

known geographically limited fishery or 

shellfishery. Second, the site will be 

used only for the disposal of dredged 

material determined to be suitable for 

open-water disposal by application of 

the MPRSA’s ocean dumping criteria. 

See 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 

FSEIS, including data from monitoring 

conducted during and after past 

disposal activities, indicates that any 

temporary perturbations in water 

quality or other environmental 

conditions at the site during initial 

mixing from disposal operations will be 

limited to the immediate area of the site 

and will neither cause any significant 

environmental degradation at the site 

nor reach any beach, shoreline, marine 

sanctuary, or other important natural 

resource area. 

iii. The sizes of disposal sites will be 

limited in order to localize for 

identification and control any 

immediate adverse impacts, and to 

permit the implementation of effective 

monitoring and surveillance to prevent 

adverse long-range impacts. Size, 

configuration, and location are to be 

determined as part of the disposal site 

evaluation (40 CFR 228.5(d)). 

EPA has determined, based on the 

information presented in the FSEIS, that 

the ELDS, in its final configuration, 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-term or cumulative 

impacts. To put things in perspective, 

the size of the ELDS is approximately 

1.3 nmi2, which is just 0.003 (0.03 

percent) of the approximately 370 nmi2

surface area of the eastern Long Island 

Sound region, and just 0.001 (less than 

one-tenth of one-percent) of the 

approximately 1300 nmi2 surface area of 

the entire Long Island Sound. The 

designation of just this one site reduces 

the overall number of active disposal 

sites in Long Island Sound from four to 

three. The long history of dredged 

material disposal site monitoring in 

New England through the USACE’s 

Disposal Area Monitoring System 

(DAMOS), and specifically at active and 

historic dredged material disposal sites 

in Long Island Sound, provides ample 

evidence that these surveillance and 

monitoring programs are effective at 

determining physical, chemical, and 

biological impacts at dredged material 

disposal sites such as the ELDS. 

The boundaries of the ELDS are 

identified by specific coordinates 

provided in Table 5–11 of the FSEIS, 

and the use of precision navigation 

equipment in both dredged material 

disposal operations and monitoring 

efforts will enable accurate disposal 

operations to be conducted, and also 

will contribute to effective management 

and monitoring of the sites. Detailed 

plans for the management and 

monitoring of the ELDS are described in 

the SMMP (Appendix I of the FSEIS). 

Finally, as discussed herein and in the 

FSEIS, EPA has tailored the boundaries 

of the ELDS, and site management 

protocols, in light of site characteristics 

such as local currents 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 evaluated sites beyond the edge 

of the continental shelf and historical 

disposal sites in Long Island Sound as 

part of the alternatives analysis 

conducted for the FSEIS. The 

continental shelf extends about 60 nmi 

seaward from Montauk Point, New 

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York, and a site located on the 

continental slope would result in a 

transit of approximately 80 nmi from 

New London. This evaluation 

determined that the long distances and 

travel times between the dredging 

locations in eastern Long Island Sound 

and the continental shelf posed 

significant environmental, operational, 

safety, and financial concerns, rendering 

such options unreasonable and not 

practicable. Environmental concerns 

include increased risk of encountering 

endangered species during transit, 

increased fuel consumption and air 

emissions, and greater potential for 

accidents in transit that could lead to 

dredged material being dumped in 

unintended areas. 

As described in Section V (‘‘Disposal 

Site Description’’), while the ELDS, as 

modified, does not include any areas 

that have been used historically for 

dredged material disposal, its eastern 

boundary is the western boundary of the 

historically used NLDS. Thus, the 

modified site is in the general vicinity 

of the historically used NLDS. To the 

extent that the ELDS boundaries have 

been adjusted from those described in 

the Proposed Rule to include only 

adjacent areas outside of the existing 

site, EPA has concluded that these 

adjustments will be environmentally 

beneficial, as discussed in the FSEIS. 

For example, rather than propose 

designation of part of the existing NLDS, 

the eastern half of which is at capacity 

and nearing depths that could lead to 

scouring of the sediment by surface 

currents and storms, EPA’s final 

designation of ELDS encompasses two 

areas (formerly NL–Wb and NL–Wa) 

immediately to the west of the NLDS. 

Moving the site to the west is consistent 

with public comments urging that the 

originally proposed ELDS be moved to 

the west, farther from the New London 

Harbor approach lane and submarine 

transit corridor in that area of the 

Sound. It is also consistent with public 

comments that favored sites that were 

further from New York state waters. 

These two adjacent areas have been 

determined to be suitable for use as 

containment areas by physical 

oceanographic modeling. Long-term 

monitoring of the adjacent NLDS has 

shown minimal adverse impacts to the 

marine environment and rapid recovery 

of the benthic community in the 

disposal mounds. Similarly, adverse 

impacts are not expected to result from 

use of the new ELDS. While there are 

other historically used disposal sites in 

eastern Long Island Sound, the analysis 

in the FSEIS and summarized herein 

concludes that the ELDS is the 

preferable location. Thus, designation of 

the ELDS would be consistent with this 

criterion. 

b. Specific Criteria (40 CFR 228.6) 

In addition to the four general criteria 

discussed above, 40 CFR 228.6(a) lists 

eleven specific factors to be used in 

evaluating the impact of using a site for 

dredged material disposal under the 

MPRSA. Compliance with the eleven 

specific criteria is discussed below. It is 

also discussed in detail in Chapter 5 and 

summarized in Table 5–13, ‘‘Summary 

of Impacts at the Alternative Sites,’’ of 

the FSEIS. 

i. Geographical Position, Depth of 

Water, Bottom Topography and 

Distance From Coast (40 CFR 

228.6(a)(1)). 

Water depths at the ELDS range from 

approximately 59 feet (18 m) in the 

north to 100 feet (30 m) in the south. As 

described above, the closest points of 

land to the site are Harkness Memorial 

State Park in Waterford, Connecticut, 

approximately 1.1 nmi to the north, and 

Fishers Island, New York, 

approximately 2.3 nmi to the east. Based 

on analyses in the FSEIS, EPA has 

concluded that the ELDS’s geographical 

position (i.e., location), water depth, 

and bottom topography (i.e., 

bathymetry), along with the absence of 

strong bottom currents at the site, will 

result in containment of dredged 

material within site boundaries. As 

described in Section V (‘‘Disposal Site 

Description’’), and in the above 

discussion of compliance with general 

criteria iii and iv (40 CFR 228.5(c) and 

(d)), the ELDS also is located far enough 

from shore and lies in deep enough 

water to avoid adverse impacts to the 

coastline. 

Because the ELDS is a containment 

area, dredged material placed there is 

expected to remain within the site and 

not affect adjacent seafloor areas. Longterm monitoring of the NLDS and other 

disposal sites in Long Island Sound 

supports that determination. Any shortterm impacts during dredged material 

placement, such as burial of benthic 

organisms or temporarily increasing the 

turbidity in the water column within the 

disposal site, will be localized at the 

site. As explained farther below in this 

analysis and in the FSEIS, although 

dredged material disposal will cause 

these localized, short-term effects, these 

effects are not expected to result in 

significant short-term or long-term 

adverse impacts to the environment. 

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 ELDS, as 

modified for this Final Rule, in relation 

to breeding, spawning, nursery, feeding, 

and passage areas for adult and juvenile 

phases (i.e., life stages) of living 

resources in Long Island Sound. From 

this analysis, EPA concluded that, while 

disposal of suitable dredged material at 

the ELDS 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. 

The ELDS does not encompass or 

infringe upon any breeding, spawning, 

nursery, feeding or passage area of 

particular or heightened importance for 

juvenile or adult living resources. That 

said, EPA has noted that in the northcentral area of the ELDS as delineated 

in the Proposed Rule, there is a hardbottom area with rocky outcroppings 

that appears likely to constitute high 

quality habitat for fish and other aquatic 

organisms, and there is a similar hard 

bottom area in the extreme 

southwestern corner of the ELDS. As a 

result, EPA has redrawn the northern 

and southern boundaries of the ELDS to 

avoid these particular areas. 

Generally, there are three primary 

ways that dredged material disposal 

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 their eggs 

and larvae. 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, if 

contaminants in the dredged material 

are taken in by aquatic organisms, these 

contaminants could potentially 

bioaccumulate through the food chain. 

However, EPA and the other federal and 

state agencies that regulate dredging and 

dredged material disposal impose 

requirements that prevent or greatly 

limit the potential for these types of 

impacts to occur. 

For example, the agencies impose 

‘‘environmental windows,’’ or time-ofyear restrictions, for both dredging and 

dredged material disposal. This type of 

restriction has been a standard practice 

for more than a decade in Long Island 

Sound, and New England generally, and 

is incorporated in USACE permits and 

authorizations in response to 

consultation with federal and state 

natural resource agencies (e.g., the 

National Marine Fisheries Service 

(NMFS)). Dredging, and corresponding 

dredged material disposal in Long 

Island Sound, is generally limited to the 

period between October 1 and April 30 

to avoid time periods of possibly 

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heightened threat to aquatic organisms. 

Indeed, environmental windows are 

often set depending on the location of 

specific dredging projects in relation to 

certain fish and shellfish species. For 

example, dredging in nearshore areas 

where winter flounder spawning occurs 

is generally prohibited between 

February 1 and April 1; dredging that 

may interfere with anadromous fish 

runs is generally prohibited between 

April 1 and May 15; and dredging that 

may adversely affect shellfish is 

prohibited between June 1 and 

September 30. These environmental 

windows limiting when dredging can 

occur also, in effect, restrict periods 

when dredged material disposal could 

occur. 

Another benefit of using 

environmental windows is that they 

reduce the likelihood of dredged 

material disposal activities interfering 

with marine mammals and reptiles. 

There are several species of marine 

mammal or reptile, such as harbor 

porpoises, long-finned pilot whales, 

seals, and sea turtles that either inhabit 

or migrate through Long Island Sound. 

During the winter months, however, 

most of these species either leave the 

Sound for warmer waters to the south or 

are less active and remain near the 

shore. There also are many species of 

fish (e.g., striped bass, bluefish, and 

scup) and invertebrates (e.g., squid) that 

leave the Sound during the winter for 

either deeper water or warmer waters to 

the south, thus avoiding the time of year 

when most dredging and dredged 

material disposal occurs. The use of 

environmental windows has been 

refined over time and is considered an 

effective management tool to minimize 

impacts to marine resources. 

Dredged material disposal will, 

however, have some short-term, 

localized impacts to fish, shellfish, and 

benthic organisms, such as clams and 

worms, that are present at a disposal site 

(or in the water column directly above 

the site) during a disposal event. The 

sediment plume may entrain and 

smother some fish in the water column, 

and may bury some fish, shellfish, and 

other marine organisms on the sea floor. 

It also may result in a short-term loss of 

forage habitat in the immediate disposal 

area, but the DAMOS program has 

documented the recolonization of 

disposal mounds by benthic infauna 

within 1–3 years after disposal, and this 

pattern would be expected at the sites 

evaluated in the FSEIS. As discussed in 

the FSEIS (section 5.2.2), 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. 

The MPRSA regulations further limit 

the potential for adverse environmental 

impacts associated with dredged 

material disposal by requiring that the 

dredged material from each proposed 

dredging project be subject to the 

MPRSA sediment testing requirements, 

set forth at 40 CFR 227.6, to determine 

the material’s suitability for open-water 

disposal. Such suitability is determined 

by analyzing the sediments proposed for 

dredging for their physical 

characteristics as well as for toxicity and 

bioaccumulation. In addition, the 

regulatory agencies quantify the risk to 

human health that would result from 

consuming marine organisms exposed 

to the dredged material and its 

associated contaminants using a risk 

assessment model. If it is determined 

that the sediment is unsuitable for openwater disposal—that is, that it may 

unreasonably degrade or endanger 

human health or the marine 

environment—it cannot be placed at 

disposal sites designated under the 

MPRSA. See 40 CFR 227.6. In light of 

these strict controls, EPA does not 

anticipate significant effects on marine 

organisms from dredged material 

disposal at the sites under evaluation. 

EPA recognizes that dredged material 

disposal causes some short-term, 

localized adverse effects to marine 

organisms in the immediate vicinity of 

each disposal event. Dredged material 

disposal would be limited, however, to 

suitable material at the one site (see 

above regarding compliance with 

general criteria (40 CFR 228.5(e)), and 

only during the several colder-weather 

months of the year. As a result, EPA 

concludes that designating the ELDS 

would not cause significant, 

unacceptable or unreasonable adverse 

impacts to breeding, spawning, nursery, 

feeding, or passage areas of living 

resources in adult or juvenile phases. 

Moreover, there is no evidence that 

designating the ELDS would have 

significant long-term effects on benthic 

processes or habitat conditions. 

iii. Location in Relation to Beaches 

and Other Amenity Areas (40 CFR 

228.6(a)(3)). 

EPA’s analysis concludes that the 

ELDS satisfies this criterion. The ELDS 

is far enough away from beaches, parks, 

wildlife refuges, and other areas of 

special concern to prevent adverse 

impacts to these amenities. Also, as 

previously noted, there are no marine 

sanctuaries in Long Island Sound. The 

ELDS is approximately 2.3 nmi from the 

closest public beach in New York, on 

the western shore of Fishers Island, and 

approximately 1.1 nmi from the beach at 

Harkness Memorial State Park in 

Waterford, Connecticut. Given that the 

ELDS is a containment site, no material 

placed at the site would be expected to 

move from the site to these amenity 

areas. As noted above, any temporary 

perturbations in water quality or other 

environmental conditions at the site 

during initial mixing from disposal 

operations will be limited to the 

immediate area of the site and will not 

reach any beach, parks, wildlife refuges, 

or other areas of special concern. 

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 CFR 228.6(a)(4)). 

The ELDS is being designated to 

receive only suitable dredged material; 

disposal of other types of material will 

not be allowed. The MPRSA and EPA 

regulations expressly prohibit open 

water disposal of certain other types of 

material (e.g., industrial waste, sewage 

sludge, chemical warfare agents, and 

insufficiently characterized materials) 

(33 U.S.C. 1414b; 40 CFR 227.5). 

The typical composition of dredged 

material to be disposed at the sites is 

expected to range from predominantly 

‘‘clay-silt’’ to ‘‘mostly sand.’’ This 

expectation is based on historical data 

from dredging projects in the eastern 

region of Long Island Sound. For federal 

dredging projects and private projects 

generating more 25,000 cubic yards of 

dredged material, EPA and the USACE 

will conduct sediment suitability 

determinations applying the criteria for 

testing and evaluating dredged material 

under 40 CFR part 227, and further 

guidance in the ‘‘Regional 

Implementation Manual for the 

Evaluation of Dredged Material 

Proposed for Disposal in New England 

Waters’’ (EPA, 2004). Dredged material 

must satisfy these suitability criteria 

before it can be authorized for disposal 

under the MPRSA. In accordance with 

MPRSA § 106(f), private dredging 

projects generating up to 25,000 cubic 

yards will continue to be regulated 

under CWA section 404. 

Dredged material to be placed at the 

ELDS would be transported by either 

government or private contractor hopper 

dredges or oceangoing bottom-dump 

barges (‘‘scows’’) towed by a towing 

vessel (e.g., tugboat). Both types of 

equipment release the material at or 

very near the surface, which is the 

standard operating procedure for this 

activity. The disposal of this material 

will occur at specific coordinates 

marked by buoys, and will be placed so 

as to concentrate material from each 

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disposal project. This concentrated 

placement is expected to help minimize 

bottom impacts to benthic organisms. In 

addition, there are no plans to pack or 

package dredged material prior to 

disposal. 

As previously discussed, the USACE’s 

DMMP projected that dredging in 

eastern Long Island Sound will generate 

approximately 22.6 million cubic yards 

(mcy) of dredged material over the next 

30 years, including 17.9 mcy from 

Connecticut ports and harbors and 4.7 

mcy from ports and harbors in New 

York. Of the total amount of 22.6 mcy, 

approximately 13.5 mcy are projected to 

be fine-grained sediment that meets 

MPRSA and CWA standards for aquatic 

disposal (i.e., ‘‘suitable’’ material), and 

9.1 mcy are projected to be coursegrained sand that also meets MPRSA 

and CWA standards for aquatic disposal 

(i.e., also ‘‘suitable’’ material). 

As discussed above in Section VI 

(‘‘Summary of Public Comments and 

EPA’s Responses’’), EPA asked the 

USACE to conduct another analysis to 

further refine the actual disposal 

capacity needed as compared with the 

original dredging needs estimate, taking 

into consideration EPA’s designation of 

only one site, past dredging experience, 

and other factors, such as the potential 

for future improvement dredging 

projects and extreme storm events, and 

accounting for consolidation of dredged 

material in the disposal site. The 

USACE’s disposal capacity analysis 

determined that the necessary capacity 

was approximately 20 mcy, which will 

be just met by the capacity of the ELDS. 

For all of these reasons, no significant 

adverse impacts are expected to be 

associated with the types and quantities 

of dredged material that may be 

disposed at the sites. 

v. Feasibility of Surveillance and 

Monitoring (40 CFR 228.6(a)(5)). 

Monitoring and surveillance will be 

feasible at the ELDS. The site is 

conducive to monitoring because it is a 

containment site and material placed at 

the site is expected to stay there. The 

ELDS is readily accessible for sediment 

grab, bathymetric, and side-scan sonar 

surveys. The nearby NLDS has been 

successfully monitored by the USACE 

over the past 35 years under the 

DAMOS program. Monitoring of the 

ELDS would be carried out under the 

DAMOS program in accordance with 

the current approved Site Management 

and Monitoring Plan (SMMP) for the 

site. In conjunction with the Proposed 

Rule, EPA and the USACE developed a 

draft SMMP and published it for public 

review and comment. The agencies have 

now developed a final SMMP in 

connection with this Final Rule. The 

final SMMP for the ELDS is included as 

Appendix I of the FSEIS. 

The SMMP is subject to review and 

updating at least once every ten years, 

if necessary, and may be subject to 

additional revisions based on the results 

of site monitoring and other new 

information. Any such revisions will be 

closely coordinated with other federal 

and state resource management agencies 

and stakeholders during the review and 

approval process and will become final 

only when approved by EPA, in 

conjunction with the USACE. See 33 

U.S.C. 1413 (c)(3). 

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)). 

Although the interactions of 

bathymetry, wind-generated waves, and 

river and ocean currents in Long Island 

Sound are complex, EPA has conducted 

a rigorous assessment of bottom stress, 

hydrodynamic processes, and stormdriven wave action at the ELDS. The 

assessment included data collection and 

modeling of disposal of dredged 

material under a variety of conditions. 

The assessment concluded that the area 

that encompasses both the ELDS and 

NLDS has the least amount of bottom 

stress compared with the other sites in 

the eastern Long Island Sound region 

that were assessed. This supports EPA’s 

conclusion that the ELDS provides for 

the greatest stability of disposal mounds 

and is the optimal location for a 

containment site. See e.g., 40 CFR 

228.15(b)(4)(vi)(L)). Consistent with 

this, past monitoring during disposal 

operations at the NLDS (in the vicinity 

of the ELDS) revealed minimal drift of 

sediment out of the disposal site area as 

it passed through the water column. 

EPA expects the same result at the 

ELDS. 

Disposal site monitoring has 

confirmed that peak wave-induced 

bottom current velocities are not 

sufficient to cause significant erosion of 

dredged material placed at the ELDS. As 

noted above, physical oceanographic 

monitoring and modeling has indicated 

that the ELDS is a depositional location 

that collects, rather than disperses, 

sediment. As a result, EPA has 

determined that the dispersal, 

horizontal transport, and vertical mixing 

characteristics, as well as the current 

velocities and directions at the ELDS, all 

support designating it as a long-term 

dredged material disposal site. 

vii. Existence and Effects of Current 

and Previous Discharges and Dumping 

in the Area (Including Cumulative 

Effects) (40 CFR 228.6(a)(7)). 

As previously described in Section V 

(‘‘Disposal Site Description’’), the ELDS 

is west of, and adjacent to, the NLDS, 

which has received approximately 8.9 

mcy (6.7 million m3) of dredged 

material since 1955. The NLDS was 

used regularly until the early 2000s and 

is still an active site, but it has not been 

used frequently in recent years and it 

will no longer be available for use after 

December 23, 2016. 

Until the passage of the CWA in 1972, 

dredged material disposal was not a 

heavily regulated activity. Since 1972, 

open-water disposal in Long Island 

Sound has been subject to the sediment 

testing and alternatives analysis 

provisions of section 404 of the CWA. 

With passage of the Ambro Amendment 

in 1980 (which was further amended in 

1990), 33 U.S.C. 1416(f), dredged 

material disposal from all federal 

projects and non-federal projects 

generating more than 25,000 cubic yards 

of material became subject to the 

requirements of the MPRSA in addition 

to CWA section 404. These increasingly 

stringent regulatory requirements for 

dredged material disposal, combined 

with other CWA requirements that have 

reduced the level of pollutants being 

discharged into the Nation’s waterways, 

have contributed to a steady, 

measurable improvement in the quality 

of material that has been allowed to be 

placed at the NLDS over the past 40 

years. 

The NLDS has been used since the 

early 1980s pursuant to the USACE’s 

short-term site selection authority under 

section 103(b) of the MPRSA (33 U.S.C. 

1413(b)). In EPA’s view, the close 

proximity of the NLDS to the ELDS, 

coupled with past use of the NLDS, 

generally makes the ELDS preferable for 

designation, as compared to more 

pristine sites that have either not been 

used or were used in the more distant 

past. See 40 CFR 228.5(e). Using a site 

in the vicinity of an existing site, rather 

than using sites in areas completely 

unaffected by dredged material in the 

past, will help to concentrate, rather 

than spread, the footprint of dredged 

material disposal on the seafloor of Long 

Island Sound. 

While the effects of placing suitable 

dredged material at a disposal site are 

primarily limited to short-term physical 

effects, such as burying benthic 

organisms in the location where the 

material is placed, EPA regards it to be 

preferable to concentrate such effects in 

particular areas and leave other areas 

untouched as much as possible. 

That said, EPA’s evaluation of data 

and modeling results indicates that past 

disposal operations at the NLDS have 

not resulted in unacceptable or 

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unreasonable environmental 

degradation, and that there should be no 

such adverse effects in the future from 

the projected use of the ELDS. As part 

of this conclusion, discussed in detail in 

Section 5.7 of the FSEIS, EPA found that 

there should be no significant adverse 

cumulative environmental effects from 

using the ELDS on a long-term basis for 

dredged material disposal in 

compliance with all applicable 

regulatory requirements regarding 

sediment quality and site usage. 

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 

any of the uses described above, EPA 

considered both the effects of placing 

dredged material on the bottom of the 

Sound at the ELDS 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. 

As previously discussed, and in 

response to public comment, the eastern 

boundary of the ELDS has been shifted 

westward to move it further from the 

submarine transit corridor into the 

Thames River. The eastern boundary of 

the ELDS is 0.467 nmi west of the 

western boundary of the New London 

Harbor approach lane and submarine 

transit corridor, which will further 

reduce any potential for conflicts 

between use of the disposal site and 

submarine and deep draft commercial 

marine traffic. Vessel traffic generated 

by disposal activity is expected to be 

similar to that which has occurred over 

the past 20–30 years, which has not 

interfered with other shipping activity. 

Moreover, research by EPA and the 

USACE concluded that after disposal at 

the ELDS, resulting water depths will be 

sufficient to permit navigation in the 

area without interference. By providing 

an open-water alternative for dredged 

material disposal in the absence of 

environmentally preferable, practicable 

alternatives, the sites are likely to 

improve and facilitate navigation in 

many of the harbors, bays, rivers and 

channels around eastern Long Island 

Sound. 

EPA also carefully evaluated the 

potential effects on commercial and 

recreational fishing for both finfish and 

shellfish (including lobster) of 

designating the ELDS for dredged 

material disposal, and concluded that 

there would be no unreasonable or 

unacceptable adverse effects. As 

discussed above in relation to other site 

evaluation criteria, dredged material 

disposal will have only short-term, 

incidental, and insignificant effects on 

organisms in the disposal sites and no 

appreciable effects beyond the sites. 

Indeed, since past dredged material 

disposal, including at the nearby NLDS, 

has been determined to have no 

significant adverse effects on fishing, 

the similar projected levels of future 

disposal activities at the designated site 

also are not expected to have any 

significant adverse effects. 

There are four main reasons that EPA 

concluded that no unacceptable adverse 

effects would occur from placing 

dredged material at the ELDS. First, as 

discussed above, any contaminants in 

material permitted for disposal—having 

satisfied the dredged material criteria in 

the regulations that restrict any toxicity 

and bioaccumulation—will not have 

any significant adverse effects on fish, 

shellfish, or other aquatic organisms. 

Moreover, because the ELDS is a 

containment area, dredged material 

disposed at the site is expected to 

remain there. 

Second, as also discussed above, the 

disposal site does not encompass any 

especially important, sensitive, or 

limited habitat for the Sound’s fish and 

shellfish, such as key spawning or 

nursery habitat for species of finfish. 

That said, as explained farther above, 

EPA has redrawn the boundary of the 

ELDS to avoid a rocky area that could 

provide particularly good habitat for 

fish, even though it is not an area that 

has received any special designation for 

such purposes. 

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 

eastern Long Island Sound, and on 

DAMOS monitoring that consistently 

documents the rapid recovery of the 

benthic community in an area that has 

received dredged material. In addition, 

any physical effects will be further 

limited by the relatively few months in 

which disposal activities could be 

permitted by the environmental window 

(or time-of-year) restrictions. 

Fourth, EPA has determined that 

vessel traffic associated with dredged 

material disposal will not have any 

unreasonable or unacceptable adverse 

effects on fishing. As explained above, 

environmental window restrictions will 

limit any disposal to the period between 

October 1 and April 30, and often to 

fewer months depending on speciesspecific restrictions for each dredging 

project, each year. Moreover, due to the 

seasonal nature of recreational boating 

and commercial shipping, there is 

generally far less vessel traffic in the 

colder-weather months when disposal 

would occur. 

There currently are no mineral 

extraction activities or desalinization 

facilities in the eastern Long Island 

Sound region with which disposal 

activity could potentially interfere. 

Energy transmission pipelines and 

cables are located near the site, but none 

are within the boundaries of the ELDS. 

No finfish aquaculture currently takes 

place in Long Island Sound, and the 

only form of shellfish culture in the 

area, oyster production, occurs in 

nearshore locations far enough away 

from the ELDS that it should not be 

impacted in any manner by this 

proposed action. 

Finally, the ELDS is not in an area of 

special scientific importance; in fact, 

areas with such characteristics were 

screened out very early in the 

alternatives screening process. 

Accordingly, depositing dredged 

material at the ELDS will not interfere 

with any of the activities described in 

this criterion or other legitimate uses of 

Long Island Sound. 

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 

ELDS in light of available data, trend 

assessments and baseline surveys 

indicates that disposal at the site will 

not cause 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 

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detail in the FSEIS and supporting 

documents. In considering this 

criterion, EPA took into account existing 

water quality and sediment quality data 

collected at the disposal sites, including 

from the USACE’s DAMOS site 

monitoring program, as well as water 

quality data from the Connecticut 

Department of Energy and 

Environmental Protection’s (CTDEEP) 

Long Island Sound Water Quality 

Monitoring Program. As discussed 

herein, EPA has determined that 

placement of suitable dredged material 

at the ELDS should not cause any 

significant adverse environmental 

effects to water quality or to ecological 

conditions at the disposal sites. EPA 

and the USACE have prepared a SMMP 

for the ELDS to guide future monitoring 

of site conditions (FSEIS Appendix I). 

x. Potentiality for the Development or 

Recruitment of Nuisance Species in the 

Disposal Sites (40 CFR 228.6(a)(10)). 

Monitoring at disposal sites in Long 

Island Sound over the past 35 years has 

shown no recruitment of nuisance 

(invasive, non-native) species that are 

attributable to dredged material 

disposal. There is no reason to expect 

this to change, but monitoring will 

continue to look for any such impacts. 

EPA and the USACE will continue to 

monitor the ELDS and other EPAdesignated sites 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’’ 

(Section 6.1.5 of the SMMP, Appendix 

I of the FSEIS). 

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 or cultural 

features of historical importance located 

within or in close proximity to the 

ELDS. There is, however, one shipwreck 

located within the ELDS near the 

southeastern corner the site, just inside 

its eastern boundary. As discussed in 

the FSEIS, a review of submerged vessel 

reports in the NOAA and Connecticut 

State Historic Preservation Office (CT 

SHPO) shipwreck databases indicates 

that there is one charted shipwreck 

located within the ELDS, near its 

eastern boundary. This wreck also was 

identified by EPA’s side-scan sonar 

survey. This shipwreck is not, however, 

considered to be of historical 

importance. 

EPA coordinated with Indian tribes in 

Connecticut, Rhode Island, and New 

York throughout the development of the 

FSEIS, and the tribes did not identify 

any important natural, cultural, 

spiritual, or historical features or areas 

within the ELDS. At the same time, the 

Shinnecock Indian Nation commented 

to EPA that investigations are underway 

to determine whether ‘‘submerged paleo 

cultural landscapes’’ might exist that 

would indicate that the tribe’s ancestors 

lived farther offshore than currently 

understood. In this regard, the tribe 

expresses concern that dredged material 

placement at an open-water site could 

further bury any evidence of such sites. 

As discussed above and in the FSEIS, 

EPA is currently not aware of any 

evidence suggesting that such 

submerged artifacts may exist at the 

ELDS. If such evidence emerges in the 

future, EPA will further consult with the 

Shinnecock Indian Nation about 

whether any adjustments to the site 

boundaries, site management 

requirements, or site use restrictions 

would be appropriate. 

In summary, one shipwreck is located 

just inside the eastern boundary of the 

ELDS, but the wreck is not considered 

to be of historical significance. 

Nevertheless, any impacts to that wreck 

from dredged material disposal will be 

minimized by establishing a 164-foot 

(50 m) avoidance buffer surrounding the 

shipwreck as well as appropriate site 

management, which accommodates both 

the minimum buffer of 30 m 

recommended by the CT SHPO, and the 

40–50 m minimum buffer applied by the 

NY OPRHP. 

3. Disposal Site Management (40 CFR 

228.3, 228.7, 228.8 and 228.9) 

The ELDS will be subject to specific 

management requirements to ensure 

that unacceptable adverse 

environmental impacts do not occur. 

Examples of these requirements include: 

(1) Restricting the use of the sites to the 

disposal of dredged material that has 

been determined to be suitable for ocean 

disposal following MPRSA and/or CWA 

requirements in accordance with the 

provisions of MPRSA section 106(f), as 

well as to material from waters in the 

vicinity of the disposal sites; (2) 

monitoring the disposal sites and their 

associated reference sites, which are not 

used for dredged material disposal, to 

assess potential impacts to the marine 

environment by providing a point of 

comparison to an area unaffected by 

dredged material disposal; and (3) 

retaining the right to limit or close these 

sites to further disposal activity if 

monitoring or other information reveals 

evidence of unacceptable adverse 

impacts to the marine environment. As 

mentioned above, dredged material 

disposal will not be allowed when 

weather and sea conditions could 

interfere with safe, effective placement 

of any dredged material at a designated 

site. In addition, although not 

technically a site management 

requirement, disposal activity at the 

sites will generally be limited to the 

period between October 1 and April 30, 

but often less, depending on 

environmental windows, to protect 

certain species, as described above. 

EPA and the USACE have managed 

and monitored dredged material 

disposal activities at disposal sites in 

Long Island Sound since the early 

1980s. Site monitoring has been 

conducted under the USACE’s DAMOS 

disposal site monitoring program. In 

accordance with the requirements of 

MPRSA section 102(c) and 40 CFR 

228.3, EPA and the USACE have 

developed a SMMP for the ELDS, which 

is incorporated as Appendix I of the 

FSEIS. The SMMP describes in detail 

the specific management and 

monitoring requirements for the ELDS. 

B. National Environmental Policy Act 

As EPA explained in the preamble to 

the Proposed Rule, 81 FR 24760 (April 

27, 2016), EPA disposal site designation 

evaluations conducted under the 

MPRSA have been determined to be 

‘‘functionally equivalent’’ to NEPA 

reviews and, as a result, are not subject 

to NEPA analysis requirements as a 

matter of law. Nevertheless, as a matter 

of policy, EPA voluntarily uses NEPA 

procedures when evaluating the 

potential designation of ocean dumping 

sites. See 63 FR 58045 (Notice of Policy 

and Procedures for Voluntary 

Preparation of National Environmental 

Policy Act Documents, October 29, 

1998). 

EPA is the agency authorized by the 

MPRSA to designate dredged material 

disposal sites and is responsible for the 

site designation decision and the NEPA 

analysis supporting it. As discussed in 

detail in the preamble to the Proposed 

Rule, 81 FR 24761, EPA used a thirdparty contracting approach so that 

funding from the state of Connecticut 

could be applied to the support the site 

designation studies and the 

development of the FSEIS. See 40 CFR 

1506.5. Because EPA is ultimately 

responsible for the FSEIS, the Agency 

worked closely with the state of 

Connecticut to select the contractors 

and then maintained close involvement 

with production of the SEIS and control 

over its analyses and conclusions. The 

U.S. Navy also contributed to the site 

designation process by funding 

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biological and other environmental 

studies in support of the FSEIS. The 

Navy, with extensive input from EPA 

and CTDEEP, used its contractor Tetra 

Tech based on its expertise in biological 

resources studies and risk assessment. 

The USACE was a ‘‘cooperating 

agency’’ in the development of the 

FSEIS 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, 

its history in the regulation of dredged 

material disposal in Long Island Sound 

and elsewhere, and its ongoing legal 

role in regulating dredging, dredged 

material disposal, and the management 

and monitoring of disposal sites. Other 

cooperating agencies were NMFS, 

CTDEEP, CT DOT, New York 

Department of State (NYSDOS), New 

York Department of Environmental 

Conservation (NYSDEC), and Rhode 

Island Coastal Resources Management 

Council (RICRMC). To take advantage of 

expertise of other entities, and to 

promote strong inter-agency 

communications, EPA also coordinated 

with the U.S. Fish and Wildlife Service; 

the Mashantucket (Western) Pequot 

Tribal Nation, Mohegan Tribe, Eastern 

Pequot Tribal Nation, and Paucatuck 

Eastern Pequot Indians (in Connecticut); 

the Narragansett Indian Tribe (in Rhode 

Island); the Shinnecock Indian Nation 

(in New York); and, as previously 

discussed, the CT SHPO and NY 

OPRHP. Throughout the SEIS 

development process, EPA 

communicated with the cooperating 

federal and state agencies and tribes to 

keep them apprised of progress on the 

project and to solicit input. 

Consistent with its voluntary NEPA 

policy, EPA has undertaken NEPA 

analyses as part of its decision-making 

process for the designation of the ELDS. 

EPA published a Notice of Intent to 

prepare an EIS on October 16, 2012, 

invited other federal and state agencies 

to participate as cooperating or 

coordinating agencies, defined a ‘‘Zone 

of Siting Feasibility’’ in cooperation 

with the cooperating agencies, held 

public meetings regarding the scope of 

issues to be addressed by the SEIS, and 

published a DSEIS for public review 

and comment. The DSEIS, entitled, 

‘‘Draft Supplemental Environmental 

Impact Statement for the Designation of 

Dredged Material Disposal Site(s) in 

Eastern Long Island Sound, Connecticut 

and New York,’’ assesses and compares 

the effects of designating alternative 

dredged material disposal sites in 

eastern Long Island Sound. EPA’s SEIS 

also evaluated various alternative 

approaches to managing dredging needs, 

including the ‘‘no action’’ alternative 

(i.e., the alternative of not designating 

any open-water disposal sites). See 40 

CFR 1502.14. The DSEIS was 

considered supplemental because it 

updated and built upon the analyses 

that were conducted for the 2005 Long 

Island Sound Environmental Impact 

Statement that supported the 

designation of the Central and Western 

Long Island Sound disposal sites. 

EPA released the DSEIS for a 60-day 

public comment period on April 27, 

2016, and subsequently extended the 

comment period for 21 days, until July 

18, 2016. EPA held four public hearings 

during the comment period: Two 

(afternoon and evening) on May 24 in 

Riverhead and Mattituck, NY, and two 

on May 25 in Groton, CT. As previously 

noted, EPA received extensive public 

comment, both in support of, and in 

opposition to, EPA’s proposed action as 

described in the DSEIS and proposed 

rule. 

After considering the public 

comments received, EPA conducted 

additional analysis and has now 

published an FSEIS in conjunction 

with, and as part of the support for, 

publication of this Final Rule 

designating the ELDS. EPA’s FSEIS 

includes additional discussion and 

analysis pertaining to EPA’s final site 

designation, including discussion and 

analysis supporting EPA’s decision to 

adjust the boundaries of the ELDS as 

they were delineated in the Proposed 

Rule. Appendix J of the FSEIS includes 

all the public comments EPA received 

on the DSEIS and Proposed Rule, and 

provides a summary of those comments 

and EPA responses to those comments. 

EPA also has summarized the more 

significant comments and EPA’s 

responses to them in Section VI of the 

preamble to this Final Rule. 

C. Coastal Zone Management Act 

Based on the evaluations presented in 

the FSEIS and supporting documents, 

and a review of the federally approved 

coastal zone programs and policies of 

Connecticut, New York, and Rhode 

Island, EPA determined that designation 

of the ELDS for open-water dredged 

material disposal under the MPRSA will 

be fully consistent with, or consistent to 

the maximum extent practicable with, 

the enforceable policies of the approved 

coastal zone management programs of 

the three states. EPA provided a written 

determination to that effect to the 

NYSDOS (on July 20, 2016), to CTDEEP 

(on July 29, 2016), and to the RICRMC 

(on July 28, 2016), respectively. 

The specific policies of each state’s 

coastal zone management program are 

discussed in detail in the 

determinations noted above, but in a 

general sense, there are several broad 

reasons why designation of the ELDS is 

consistent with the applicable, 

enforceable policies of the three 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 

coastal uses involving navigation and 

berthing of vessels by facilitating 

needed dredging, and to benefit the 

environment by limiting any open-water 

dredged material disposal to a small 

number of environmentally appropriate 

sites designated by EPA, rather than at 

a potential proliferation of USACEselected sites. Second, designation of 

the site does not actually authorize the 

disposal of any dredged material at the 

sites. Any proposal to dispose dredged 

material from a particular project at a 

designated site will be subject to casespecific evaluation and be allowed only 

if: (a) The material satisfies the sediment 

quality requirements of the MPRSA and 

the CWA; (b) no practicable alternative 

method of management with less 

adverse environmental impact is 

available; and (c) the disposal complies 

with the site restrictions for the site. 

These restrictions are described and 

discussed in the next section of the 

preamble and are designed to reduce or 

eliminate dredged material disposal in 

Long Island Sound. Third, the 

designated disposal site will be 

managed and monitored pursuant to a 

SMMP and if adverse impacts are 

identified, use of the sites will be 

modified to reduce or eliminate those 

impacts. Such modification could 

further restrict, or even terminate, use of 

the sites, if appropriate. See 40 CFR 

228.3, 228.11. 

On August 9, 2016, the RICRMC sent 

EPA a letter concurring with EPA’s 

CZMA determination for Rhode Island. 

Similarly, on September 26, 2016, 

CTDEEP, which administers 

Connecticut’s coastal zone management 

program, sent EPA a letter concurring 

with EPA’s CZMA determination for 

Connecticut. 

On October 3, 2016, EPA received a 

letter from the NYSDOS objecting to 

EPA’s designation of the ELDS on the 

basis of its view that either EPA had 

provided insufficient information to 

support a CZMA consistency 

determination or, based on the 

information provided, the action was 

inconsistent with the enforceable 

policies of New York’s Coastal 

Management Program (CMP). 

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After giving careful consideration to 

the issues raised by NYSDOS, EPA 

continues to hold the view that 

designation of the ELDS, as specified 

herein, is consistent to the maximum 

extent practicable with the enforceable 

policies of New York’s CMP. EPA also 

believes that the site use restrictions 

that have been made applicable to the 

ELDS provide enhanced assurance of 

such consistency. 

D. Endangered Species Act 

The ESA requires consultation with 

NMFS and/or USFWS to adequately 

address potential impacts to threatened 

and endangered species that may occur 

at the proposed dredged material 

disposal site from any proposal to 

dispose dredged material. EPA initiated 

consultations regarding the proposed 

ELDS with both the NMFS and USFWS, 

concurrent with the public comment 

period for the DSEIS. This consultation 

process is fully documented in the 

FSEIS. EPA provided the NMFS and 

USFWS with its conclusion that the 

proposed designation of the ELDS was 

not likely to adversely affect any 

federally listed endangered or 

threatened species, or designated 

critical habitat of any such species. 

On August 11, 2016, USFWS sent an 

email message concurring with EPA’s 

proposed action, stating that the 

designation of the ELDS, ‘‘will have no 

effect on federally listed species under 

the jurisdiction of the U.S. Fish and 

Wildlife Service and that any effects 

from activities associated with the 

disposal of dredged material at this 

location will be consulted individually 

under section 7 of the ESA,’’ and that, 

‘‘(f)urther consultation . . . is not 

necessary unless there is new 

information relative to listed species 

presence or there are changes to the 

project.’’ 

On August 12, 2016, NMFS also 

concurred with EPA’s ‘‘conclusion that 

the proposed action is not likely to 

adversely affect the ESA-listed species 

under our jurisdiction and will have no 

effect on critical habitat since the action 

does not overlap with any proposed/ 

designation (sic) critical habitat under 

our jurisdiction,’’ and that, ‘‘. . . no 

further consultation . . . is required.’’ 

Copies of all consultation and 

coordination correspondence are 

provided in Appendices A–11 of the 

FSEIS. 

E. Magnuson-Stevens Fishery 

Conservation and Management Act 

The MSFCMA requires federal 

agencies to coordinate with NMFS 

regarding any action they authorize, 

fund, or undertake that may adversely 

affect essential fish habitat (EFH). EPA 

initiated coordination with NMFS on 

June 30, 2016, by submitting an EFH 

assessment in compliance with the Act. 

This coordination addressed the 

potential for the designation of any of 

the alternative disposal sites being 

evaluated to adversely affect EFH. In a 

letter dated August 12, 2016, NMFS 

concurred with EPA’s determination 

that the designation of the ELDS would 

not adversely affect EFH. The letter 

stated, in part, ‘‘We concur with your 

determination that by excluding the 

boulder areas located in the south and 

northwest corners of the proposed 

disposal site, and with the incorporation 

of your specific management practices 

that include a 200-foot buffer zone from 

the boulder areas, the proposed 

designation will result in no more than 

minimal adverse impacts to designated 

EFH.’’ The coordination process is fully 

documented in the FSEIS. 

IX. Restrictions 

As described in the Proposed Rule, 

EPA is restricting the use of the ELDS 

in the same manner that it has restricted 

use of the CLDS and WLDS. On July 7, 

2016, EPA published in the Federal 

Register (81 FR 44220) a final rule to 

amend the 2005 rule that designated the 

CLDS and WLDS, to establish new 

restrictions on the use of those sites to 

support the goal of reducing or 

eliminating open-water disposal in Long 

Island Sound. The restrictions include 

standards and procedures to promote 

the development and use of practicable 

alternatives to open-water disposal, 

including establishment of an 

interagency ‘‘Steering Committee’’ and 

‘‘Regional Dredging Team’’ that will 

play important roles in implementation 

of the rule. The site use restrictions for 

the CLDS are detailed in 40 CFR 

228.15(b)(4)(vi) and are incorporated for 

the WLDS by the cross-references in 40 

CFR 228.15(b)(4)(vi) and (b)(5)(vi). 

Similarly, EPA is applying to the ELDS 

the same restrictions as are applied to 

the CLDS and WLDS by including 

simple cross-references to those 

restrictions in the new ELDS regulations 

at 40 CFR 228.15(b)(4) and (b)(6)(vi). 

The restrictions incorporate standards 

and procedures for the use of the 

Eastern, Central and Western disposal 

sites consistent with the 

recommendations of the Long Island 

Sound DMMP. The DMMP identifies a 

wide range of alternatives to open-water 

disposal and recommends standards 

and procedures to help determine 

whether and which of these alternatives 

should be pursued for particular 

dredging projects. The DMMP addresses 

dredging and dredged material 

management issues for the entire Long 

Island Sound region, including the 

eastern portion of the Sound. Therefore, 

EPA concludes that it makes sense to 

apply site use restrictions based on the 

DMMP to the ELDS as well as to the 

CLDS and WLDS. EPA also received 

public comments in support of applying 

the site use restrictions to all Long 

Island Sound disposal sites. 

The standards included in the 

restrictions are described in the 

Proposed Rule and address the 

disposition of sandy material, suitable 

fine-grained material and unsuitable 

fine-grained materials. See 81 FR 24764. 

See also 81 FR 44229 (40 CFR 

228.15(b)(4)(vi)(C)(3)(i)–(iii)). Also 

included are expectations of continued 

federal, state and local efforts at source 

reduction (i.e., reducing sediment 

entering waterways). EPA did not 

receive any comments on the standards 

and has not modified them in the Final 

Rule. 

The restrictions augment the 

recommended procedures in the DMMP, 

and in the Proposed Rule, by 

establishing a Long Island Sound 

Dredging Steering Committee (Steering 

Committee), consisting of high-level 

representatives from the states of 

Connecticut and New York, EPA, 

USACE, and, as appropriate other 

federal and state agencies. Such other 

parties could include the National 

Oceanic and Atmospheric 

Administration’s (NOAA) National 

Marine Fisheries Service (NMFS), 

which had a seat on the previous 

Steering Committee, and the state of 

Rhode Island, which had a seat on the 

previous Long Island Sound Regional 

Dredging Team (LIS RDT), and may 

have more interest now that the LIS 

RDT’s geographic scope includes 

eastern Long Island Sound. The Steering 

Committee will provide policy-level 

direction to the Long Island Sound 

Regional Dredging Team (RDT). The 

Steering Committee is charged with: 

Establishing a baseline for the volume 

and percentage of dredged material 

being beneficially used and placed at 

the open-water sites; establishing a 

reasonable and practicable series of 

stepped objectives, including 

timeframes, to increase the percentage 

of beneficially used material while 

reducing the percentage and amount 

being disposed in open water, and while 

recognizing that the amounts of dredged 

material generated by the dredging 

program will naturally fluctuate from 

year to year; and develop accurate 

methods to track the placement of 

dredged material, with due 

consideration for annual fluctuations. 

The stepped objectives should 

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Federal Register / Vol. 81, No. 234 / Tuesday, December 6, 2016 / Rules and Regulations 87841 

incorporate an adaptive management 

approach while striving for continuous 

improvement. 

The restrictions provide that when 

tracking progress, the Steering 

Committee should recognize that 

exceptional circumstances may result in 

delays meeting an objective. Exceptional 

circumstances should be infrequent, 

irregular and unpredictable. It is 

expected that each of the member 

agencies will commit the necessary 

resources to support the Long Island 

Sound RDT and Steering Committee’s 

work, including the collection of data 

necessary to support establishing the 

baseline and tracking and reporting on 

the future disposition of dredged 

material. 

The restrictions also provide that the 

Steering Committee may utilize the 

RDT, as appropriate, to carry out the 

tasks assigned to it. The Steering 

Committee, with the support of the 

RDT, will guide a concerted effort to 

encourage greater use of beneficial use 

alternatives, including piloting 

alternatives, identifying possible 

resources and eliminating regulatory 

barriers as appropriate. 

As described in the Proposed Rule, 

see 81 FR 24765, the restrictions 

establish the Long Island Sound RDT. 

See also 81 FR 44229–44230 (40 CFR 

228.15(b)(4)(vi)(E) and (F)). The purpose 

of the RDT reflects its role and 

relationship to the Steering Committee. 

The purpose of the RDT is to: (1) Review 

dredging projects and report to USACE 

on its review within 30 days of receipt 

of project information; (2) assist the 

Steering Committee in the tasks 

described above; (3) serve as a forum for 

continuing exploration of new 

beneficial use alternatives, matching 

available beneficial use alternatives 

with dredging projects; (4) exploring 

cost-sharing opportunities and 

promoting opportunities for beneficial 

use of clean, parent marine sediments 

(that underlie surficial sediments and 

are not exposed to pollution) often 

generated in the development of 

Confined Aquatic Disposal cells; and (5) 

assist the USACE and EPA in 

continuing long-term efforts to monitor 

dredging impacts in Long Island Sound. 

The membership of the RDT will 

comprise representatives from the states 

of Connecticut and New York, EPA, 

USACE, and, as appropriate, other 

federal and state agencies. State 

participation on the RDT is voluntary. 

The geographic scope of the RDT, as 

well as details for the structure and 

process of the RDT, are unchanged from 

the Proposed Rule. 

Finally, the restrictions provide that if 

the volume of open-water disposal of 

dredged material, as measured in 2026, 

has not declined or been maintained 

over the prior ten years, then any party 

may petition EPA to conduct a 

rulemaking to amend the restrictions of 

the use of the sites. 

X. Supporting Documents 

1. EPA Region 1/USACE NAE. 2005. 

Response to Comments on the Final 

Environmental Impact Statement for the 

Designation of Dredged Material Disposal 

Sites in Central and Western Long Island 

Sound, Connecticut and New York. U.S. 

Environmental Protection Agency, Region 1, 

Boston, MA and U.S. Army Corps of 

Engineers, New England District, Concord, 

MA. April 2005. 

2. EPA Region 1. 2005. Memorandum to 

the File Responding to the Letter from the 

New York Department of State Objecting to 

EPA’s Federal Consistency Determination for 

the Dredged Material Disposal Site 

Designations. U.S. Environmental Protection 

Agency, Region 1, Boston, MA. May 2005. 

3. EPA Region 1/USACE NAE. 2004. Final 

Environmental Impact Statement for the 

Designation of Dredged Material Disposal 

Sites in Central and Western Long Island 

Sound, Connecticut and New York. U.S. 

Environmental Protection Agency, Region 1, 

Boston, MA and U.S. Army Corps of 

Engineers, New England District, Concord, 

MA. March 2004. 

4. 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. 

5. EPA Region 2/USACE NAN. 1992. 

Guidance for Performing Tests on Dredged 

Material Proposed for Ocean Disposal. U.S. 

Environmental Protection Agency, Region 2, 

New York, NY and U.S. Army Corps of 

Engineers, New York District, New York, NY. 

Draft Release. December 1992. 

6. 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. 

7. Long Island Sound Study. 2015. 

Comprehensive Conservation and 

Management Plan for Long Island Sound. 

Long Island Sound Management Conference. 

September 2015. 

8. NYSDEC and CTDEP. 2000. A total 

maximum daily load analysis to achieve 

water quality standards for dissolved oxygen 

in Long Island Sound. Prepared in 

conformance with section 303(d) of the Clean 

Water Act and the Long Island Sound Study. 

New York State Department of 

Environmental Conservation, Albany, NY 

and Connecticut Department of 

Environmental Protection, Hartford, CT. 

December 2000. 

9. USACE NAE. 2016. Final Long Island 

Sound Dredged Material Management Plan 

and Final Programmatic Environmental 

Impact Statement—Connecticut, Rhode 

Island and New York. U.S. Army Corps of 

Engineers, New England District. December 

2015. 

10. EPA Region 1. 2016. Draft 

Supplemental Environmental Impact 

Statement for the Designation of Dredged 

Material Disposal Site(s) in Eastern Long 

Island Sound, Connecticut and New York. 

U.S. Environmental Protection Agency, 

Region 1, Boston, MA. April 2016. 

11. USACE NAE. 2016a. Memorandum 

from USACE New England District to EPA 

Region 1 with updated dredging and disposal 

capacity needs for Eastern Long Island 

Sound. U.S. Army Corps of Engineers, New 

England District. September 2016. 

12. USACE NAE. 2016b. Memorandum 

from USACE New England District to EPA 

Region 1 with detailed cost estimates for 

dredged material disposal at different 

disposal sites in Long Island Sound. U.S. 

Army Corps of Engineers, New England 

District. September 2016. 

XI. 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 therefore was not 

submitted to the Office of Management 

and Budget (OMB) for review. 

2. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA because it would not require 

persons to obtain, maintain, retain, 

report or publicly disclose information 

to or for a federal agency. 

3. Regulatory Flexibility Act (RFA) 

This action will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (RFA). The 

amended restrictions in this rule are 

only relevant for dredged material 

disposal projects subject to the MPRSA. 

Non-federal projects involving 25,000 

cubic yards or less of material are not 

subject to the MPRSA and, instead, are 

regulated under CWA section 404. This 

action will, therefore, have no effect on 

such projects. ‘‘Small entities’’ under 

the RFA are most likely to be involved 

with smaller projects not covered by the 

MPRSA. Therefore, EPA does not 

believe a substantial number of small 

entities will be affected by today’s rule. 

Furthermore, the amendments to the 

restrictions also will not have 

significant economic impacts on a 

substantial number of small entities 

because they will primarily create 

requirements to be followed by 

regulatory agencies rather than small 

entities, and will create requirements 

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87842 Federal Register / Vol. 81, No. 234 / Tuesday, December 6, 2016 / Rules and Regulations 

(i.e., the standards and procedures) 

intended to help ensure satisfaction of 

the existing regulatory requirement (see 

40 CFR 227.16) that practicable 

alternatives to the ocean dumping of 

dredged material be utilized. 

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 national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Through the 

Steering Committee and RDT process, 

however, this action will provide a 

vehicle for facilitating the interaction 

and communication of interested federal 

and state agencies concerned with 

regulating dredged material disposal in 

Long Island Sound. 

6. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175 because the proposed 

restrictions will not have substantial 

direct effects on Indian tribes, on the 

relationship between the federal 

government and Indian tribes, or the 

distribution of power and 

responsibilities between the federal 

government and Indian tribes. EPA 

coordinated with all Indian Tribal 

Governments in the vicinity of the 

proposed action and consulted with the 

Shinnecock Tribal Nation 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 

EPA does not believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. 

8. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

9. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 

10. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA concludes that this action 

will not have a disproportionate adverse 

human health or environmental effect 

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 sciencebased regulations, as necessary, to 

ensure appropriate levels of protection 

for the marine environment.’’ EPA may 

take action to enhance or expand 

protection of existing marine protected 

areas and to establish or recommend, as 

appropriate, new marine protected 

areas. The purpose of the Executive 

Order is to protect the significant 

natural and cultural resources within 

the marine environment, which means, 

‘‘those areas of coastal and ocean 

waters, the Great Lakes and their 

connecting waters, and submerged lands 

thereunder, over which the United 

States exercises jurisdiction, consistent 

with international law.’’ 

The EPA expects that this Final Rule 

will afford additional protection to the 

waters of Long Island Sound and 

organisms that inhabit them. Building 

on the existing protections of the 

MPRSA and the ocean dumping 

regulations, the rule is designed to 

promote the reduction or elimination of 

open-water disposal of dredged material 

in Long Island Sound, and, at the same 

time, to ensure that any such disposal 

that occurs will be conducted in an 

environmentally sound manner. 

12. Executive Order 13547: Stewardship 

of the Ocean, Our Coasts, and the Great 

Lakes 

Section 6(a)(i) of Executive Order 

13547, (75 FR 43023, July 19, 2010) 

requires, among other things, EPA and 

certain other agencies ‘‘. . . to the 

fullest extent consistent with applicable 

law [to] . . . take such action as 

necessary to implement the policy set 

forth in section 2 of this order and the 

stewardship principles and national 

priority objectives as set forth in the 

Final Recommendations and subsequent 

guidance from the Council.’’ The 

policies in section 2 of Executive Order 

13547 include, among other things, the 

following: ‘‘. . . it is the policy of the 

United States to: (i) Protect, maintain, 

and restore the health and biological 

diversity of ocean, coastal, and Great 

Lakes ecosystems and resources; [and] 

(ii) improve the resiliency of ocean, 

coastal, and Great Lakes ecosystems, 

communities, and economies . . . .’’ As 

with Executive Order 13158 (Marine 

Protected Areas), the overall purpose of 

the Executive Order is to promote 

protection of ocean and coastal 

environmental resources. 

The EPA expects that this Final Rule 

will afford additional protection to the 

waters of Long Island Sound and the 

organisms that inhabit them. Building 

on the existing protections of the 

MPRSA and the ocean dumping 

regulations, the rule is designed to 

promote the reduction or elimination of 

open-water disposal of dredged material 

in Long Island Sound even as it 

facilitates necessary dredging. 

13. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A ‘‘major rule’’ 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a major rule as 

defined by 5 U.S.C. 804(2). This rule 

will be effective 30 days after date of 

publication. 

List of Subjects in 40 CFR Part 228 

Environmental protection, Water 

pollution control. 

Dated: November 4, 2016. 

H. Curtis Spalding, 

Regional Administrator, EPA Region 1—New 

England. 

For the reasons stated in the 

preamble, title 40, chapter I, of the Code 

of Federal Regulations is amended as set 

forth below. 

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Federal Register / Vol. 81, No. 234 / Tuesday, December 6, 2016 / Rules and Regulations 87843 

PART 228—CRITERIA FOR THE 

MANAGEMENT OF DISPOSAL SITES 

FOR OCEAN DUMPING 

■ 1. The authority citation for part 228 

continues to read as follows: 

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

■ 2. Section 228.15 is amended by 

revising paragraph (b)(4)(vi) 

introductory text and adding paragraph 

(b)(6) to read as follows: 

§ 228.15 Dumping sites designated on a 

final basis. 

* * * * * 

(b) * * * 

(4) * * * 

(vi) Restrictions: The designation in 

this paragraph (b)(4) sets forth 

conditions for the use of the Central 

Long Island Sound (CLDS), Western 

Long Island Sound (WLDS) and Eastern 

Long Island Sound (ELDS) Dredged 

Material Disposal Sites. These 

conditions apply to all disposal subject 

to the MPRSA, namely, all federal 

projects and nonfederal projects greater 

than 25,000 cubic yards. All references 

to ‘‘permittees’’ shall be deemed to 

include the U.S. Army Corps of 

Engineers (USACE) when it is 

authorizing its own dredged material 

disposal from a USACE dredging 

project. The conditions for this 

designation are as follows: 

* * * * * 

(6) Eastern Long Island Sound 

Dredged Material Disposal Site (ELDS). 

(i) Location: Corner Coordinates 

(NAD83) 41°15.81′ N., 72°05.23′ W.; 

41°16.81′ N., 72°05.23′ W.; 41°16.81′ N., 

72°07.22′ W.; 41°15.97′ N., 72°07.22′ W.; 

41°15.81′ N., 72°06.58′ W. 

(ii) Size: A 1 x 1.5 nautical mile 

irregularly-shaped polygon, with an area 

of 1.3 square nautical miles (nmi2) due 

to the exclusion of bedrock areas. Northcentral bedrock area corner coordinates 

(NAD83) are: 41°16.34′ N., 72°05.89′ W.; 

41°16.81′ N., 72°05.89′ W.; 41°16.81′ N., 

72°06.44′ W.; 41°16.22′ N., 72°06.11′ W. 

(iii) Depth: Ranges from 59 to 100 feet 

(18 m to 30 m). 

(iv) Primary use: Dredged material 

disposal. 

(v) Period of use: Continuing use. 

(vi) Restrictions: See paragraphs 

(b)(4)(vi)(A) through (N) of this section. 

* * * * * 

[FR Doc. 2016–27546 Filed 12–5–16; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Part 1302 

RIN 0970–AC63 

Head Start Program 

AGENCY: Office of Head Start (OHS), 

Administration for Children and 

Families (ACF), Department of Health 

and Human Services (HHS). 

ACTION: Final rule; delay of compliance 

date. 

SUMMARY: The Office of Head Start will 

delay the compliance date for 

background checks procedures 

described in the Head Start Program 

Performance Standards final rule that 

was published in the Federal Register 

on September 6, 2016. We are taking 

this action to afford programs more time 

to implement systems that meet the 

background checks procedures and to 

align with deadlines for states 

complying with background check 

requirements found in the Child Care 

and Development Block Grant (CCDBG) 

Act of 2014. 

DATES: The compliance date for the 

background checks procedures 

described in 45 CFR 1302.90(b) is 

delayed until September 30, 2017. 

FOR FURTHER INFORMATION CONTACT: 

Colleen Rathgeb, Division Director of 

Early Childhood Policy and Budget, 

Office of Early Childhood Development, 

OHS_NPRM@acf.hhs.gov, (202) 358– 

3263 (not a toll-free call). Deaf and 

hearing impaired individuals may call 

the Federal Dual Party Relay Service at 

1–800–877–8339 between 8 a.m. and 7 

p.m. Eastern Standard Time. 

SUPPLEMENTARY INFORMATION: The Head 

Start program provides grants to local 

public and private non-profit and forprofit agencies to provide 

comprehensive child development 

services to economically disadvantaged 

children and families and to help 

preschoolers develop the skills they 

need to be successful in school. We 

amended our Head Start program 

performance standards in a final rule 

that published in the Federal Register 

on September 6, 2016. 

Head Start Program Performance 

Standards are the foundation for Head 

Start’s mission to deliver 

comprehensive, high-quality 

individualized services to support 

children from low-income families 

prepare for school. They outline 

requirements grantees and delegate 

agencies must implement to operate 

high quality Head Start or Early Head 

Start programs and provide a structure 

to monitor and enforce quality 

standards. 

Our performance standards highlight 

child safety as a top priority. We 

strengthen our criminal background 

checks process at 45 CFR 1302.90(b), in 

the final rule, to reflect changes in the 

Improving Head Start for School 

Readiness Act of 2007 (Act), 42 U.S.C. 

9801 et seq., and to complement 

background check requirements in the 

Child Care and Development Block 

Grant (CCDBG) Act of 2014, 20 U.S.C. 

1431 et seq., 20. 

In the SUPPLEMENTARY INFORMATION

section of the final rule, we provided a 

table, Table 1: Compliance Table that 

lists dates by which programs must 

implement specific standards. We list 

August 1, 2017 as the date by which 

programs must comply with background 

checks performance standards at 45 CFR 

1302.90(b)(2), (4), and (5) in the final 

rule. 

Generally, before a person is hired, we 

require programs to conduct a sex 

offender registry check and obtain either 

a state or tribal criminal history records, 

including fingerprint checks, or a 

Federal Bureau of Investigation (FBI) 

criminal history records, including 

fingerprint checks, before a person is 

hired. This performance standard under 

section 1302.90(b)(1) became effective 

the date the final rule was published. 

Programs were to have systems in place, 

by August 1, 2017, to accommodate this 

part of the background checks process. 

In sections 1302.90 (b)(2), (4), and (5), 

we afford programs 90 days to obtain 

which ever check they could not obtain 

before the person was hired, as well as 

child abuse and neglect state registry 

check, if available; we require programs 

to have systems in place that ensure 

these newly hired employees do not 

have unsupervised access to children 

until their background process is 

complete; and we require programs to 

conduct complete background checks 

that consist of a sex offender registry 

check, state or tribal history records, 

including fingerprint checks and an FBI 

criminal history records, including 

fingerprint check, as well as a child 

abuse and neglect state registry check, if 

available, for each employee at least 

once every five years. 

We believe programs will need more 

time to implement systems to complete 

the backgrounds checks process listed at 

sections 1302.90(b)(2), (4), and (5) in our 

final rule. Also, we recognize most 

states will have systems that can 

accommodate our programs’ background 

checks requests by September 30, 2017. 

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