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[Federal Register: April 29, 2010 (Volume 75, Number 82)]
[Rules and Regulations]               
[Page 22524-22532]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap10-11]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R10-OW-2010-0086; FRL-9143-2]

 
Ocean Dumping; Designation of Ocean Dredged Material Disposal 
Sites Offshore of the Siuslaw River, Oregon

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action finalizes the designation of the Siuslaw River 
ocean dredged material disposal sites pursuant to the Marine 
Protection, Research and Sanctuaries Act, as amended (MPRSA). The new 
sites are needed primarily to serve the long-term need for a location 
to dispose of material dredged from the Siuslaw River navigation 
channel, and to provide a location for the disposal of dredged material 
for persons who have received a permit for such disposal. The newly 
designated sites will be subject to ongoing monitoring and management 
to ensure continued protection of the marine environment.

[[Page 22525]]

DATES: Effective Date: This final rule will be effective June 1, 2010.

ADDRESSES: For more information on this final rule, Docket ID No. EPA-
R10-OW-2010-0086 use one of the following methods:
    http://www.regulations.gov: Follow the on-line 
instructions for accessing the docket and materials related to this 
final rule.
     E-mail: winkler.jessica@epa.gov.
     Mail: Jessica Winkler, U.S. Environmental Protection 
Agency, Region 10, Office of Ecosystems, Tribal and Public Affairs 
(ETPA-088), Environmental Review and Sediment Management Unit, 1200 
Sixth Avenue, Suite 900, Seattle, Washington 98101.
    Publicly available docket materials are available either 
electronically at http://www.regulations.gov or in hard copy during 
normal business hours for the regional library at the U.S. 
Environmental Protection Agency, Region 10, Library, 10th Floor, 1200 
Sixth Avenue, Suite 900, Seattle, Washington 98101. For access to the 
documents at the Region 10 Library, contact the Region 10 Library 
Reference Desk at (206) 553-1289, between the hours of 9 a.m. to 12 
p.m., and between the hours of 1 p.m. to 4 p.m., Monday through Friday, 
excluding legal holidays, for an appointment.

FOR FURTHER INFORMATION CONTACT: Jessica Winkler, U.S. Environmental 
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public 
Affairs (ETPA-088), Environmental Review and Sediment Management Unit, 
1200 Sixth Avenue, Suite 900, Seattle, Washington 98101, phone number: 
(206) 553-7369, e-mail: winkler.jessica@epa.gov.

SUPPLEMENTARY INFORMATION: On February 4, 2010, EPA published a 
proposed rule at 75 FR 5708 to designate two new ocean dredged material 
disposal sites near the mouth of the Siuslaw River, Oregon. EPA 
received three comments on the proposed rule.

1. Potentially Affected Persons

    Persons potentially affected by this action include those who seek 
or might seek permits or approval by EPA to dispose of dredged material 
into ocean waters pursuant to the Marine Protection, Research, and 
Sanctuaries Act, as amended (MPRSA), 33 U.S.C. 1401 to 1445. EPA's 
final action would be relevant to persons, including organizations and 
government bodies, seeking to dispose of dredged material in ocean 
waters offshore of the Siuslaw River, Oregon. Currently, the U.S. Army 
Corps of Engineers (Corps) would be most affected by this action. 
Potentially affected categories and persons include:

----------------------------------------------------------------------------------------------------------------
                   Category                                Examples of potentially regulated persons
----------------------------------------------------------------------------------------------------------------
Federal Government...........................  U.S. Army Corps of Engineers Civil Works Projects, and other
                                                Federal Agencies.
Industry and General Public..................  Port Authorities, Marinas and Harbors, Shipyards and Marine
                                                Repair Facilities, Berth Owners.
State, local and Tribal governments..........  Governments owning and/or responsible for ports, harbors, and/or
                                                berths, Government agencies requiring disposal of dredged
                                                material associated with public works projects.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding persons likely to be affected by this 
action. For any questions regarding the applicability of this action to 
a particular person, please refer to the contact person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

2. Background

a. History of Disposal Sites Offshore of the Siuslaw River, Oregon

    Three ocean dredged material disposal sites, an Interim Site and 
two selected sites were used by the U.S. Army Corps of Engineers 
(Corps) for the disposal of sediments dredged from the Siuslaw River 
navigation project. The ``Interim Site,'' former Site A, was included 
in the list of approved interim ocean disposal sites for dredged 
material in the Federal Register in 1977 (42 FR 2461), a status 
superseded by later statutory changes to the MPRSA. Mounding at Site A 
and concern over the potential for ocean currents to move sediments 
from Site A back into the dredged channel resulted in a selection of 
disposal Sites B and C by the Corps pursuant to Section 103 of the 
MPRSA. That authority allows the Corps to select a site or sites for 
disposal when a site has not been designated by EPA. The selection of 
Sites B and C was intended to reduce potential hazards associated with 
mounding at Site A. The selection of Sites B and C was also intended to 
increase long-term disposal site capacity near the mouth of the Siuslaw 
River. EPA concurred on the selection and approved the Corps' request 
to continue to use Sites B and C through the end of the 2009 dredging 
season. To provide for sufficient disposal capacity over the long term, 
EPA proposed to designate two sites, a North Site and a South Site, for 
the ocean disposal of dredged material near the Siuslaw River in the 
vicinity of former Sites A, B and C. Those proposed Sites are finalized 
in this action.

b. Location and Configuration of Siuslaw River Ocean Dredged Material 
Disposal Sites

    This action finalizes the designation of two Siuslaw River ocean 
dredged material sites to the north and south, respectively, of the 
mouth of the Siuslaw River. The coordinates, listed below, and Figure 
1, below, show the location of the two Siuslaw River ocean dredged 
material disposal sites (Siuslaw River ODMD Sites, North and South 
Sites, or Sites). The configuration of the North Site is expected to 
allow dredged material disposed in shallower portions of the Site to 
naturally disperse into the littoral zone and augment shoreline 
building processes. This final designation of the Siuslaw River ODMD 
Sites will allow EPA to adaptively manage the Sites to avoid creating 
mounding conditions that could contribute to adverse impacts to 
navigation.
    The coordinates for the two Siuslaw River ODMD Sites are, in North 
American Datum 83 (NAD 83):

----------------------------------------------------------------------------------------------------------------
            North Siuslaw ODMD Site                                  South Siuslaw ODMD Site
----------------------------------------------------------------------------------------------------------------
44[deg] 01[min] 31.03[sec] N, 124[deg] 10[min]    44[deg] 00[min] 46.72[sec] N, 124[deg] 10[min] 26.55[sec] W
 12.92[sec] W.
44[deg] 01[min] 49.39[sec] N, 124[deg] 10[min]    44[deg] 01[min] 06.41[sec] N, 124[deg] 10[min] 24.45[sec] W
 02.85[sec] W.
44[deg] 01[min] 31.97[sec] N, 124[deg] 09[min]    44[deg] 01[min] 04.12[sec] N, 124[deg] 09[min] 43.52[sec] W
 01.86[sec] W.
44[deg] 01[min] 13.45[sec] N, 124[deg] 09[min]    44[deg] 00[min] 44.45[sec] N, 124[deg] 09[min] 45.63[sec] W
 11.41[sec] W.
----------------------------------------------------------------------------------------------------------------

[[Page 22526]]

    The two Sites are situated in approximately 30 to 125 feet of water 
located to the north and south of the entrance to the Siuslaw River on 
the southern Oregon Coast (see Figure 1). The dimensions of the Sites 
are 4,800 by 2,000 feet and 3,000 by 2,000 feet, respectively.
BILLING CODE 6560-50-P
[GRAPHIC] [TIFF OMITTED] TR29AP10.000

BILLING CODE 6560-50-C

[[Page 22527]]

c. Management and Monitoring of the Sites

    The final Siuslaw Sites are expected to receive sediments dredged 
by the Corps to maintain the Federally authorized navigation project at 
the Siuslaw River, Oregon and dredged material from other persons who 
have obtained a permit for the disposal of dredged material at the 
Sites. All persons using the Sites are required to follow the final 
Site Management and Monitoring Plan (SMMP) for the Sites. The SMMP 
finalized in this action includes management and monitoring 
requirements to ensure that dredged materials disposed at the Sites are 
suitable for disposal in the ocean and that adverse impacts of 
disposal, if any, are addressed to the maximum extent practicable. The 
final SMMP for the Siuslaw River Sites also addresses management of the 
Sites to ensure adverse mounding does not occur and to ensure that 
disposal events are timed to minimize interference with other uses of 
ocean waters in the vicinity of the proposed Sites.

d. MPRSA Criteria

    EPA assessed the Sites against the criteria of the MPRSA, with 
particular emphasis on the general and specific regulatory criteria of 
40 CFR part 228 to determine that the final Site designations satisfied 
those criteria.
General Criteria (40 CFR 228.5)
    (1) Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or shellfisheries, and regions of heavy commercial 
or recreational navigation (40 CFR 228.5(a)).
    EPA reviewed the potential for the Sites to interfere with 
navigation, recreation, shellfisheries, aquatic resources, commercial 
fisheries, protected geologic features, and cultural and/or 
historically significant areas and found low potential for conflicts. 
The final Sites are located close to the approach to the Siuslaw River 
entrance channel but are unlikely to cause interference with navigation 
or other uses near the mouth of the Siuslaw River provided close 
communication and coordination is maintained with other users, vessel 
traffic control and the U.S. Coast Guard (USCG). Based on the past 
history of fishing and disposal operations near the mouth of the 
Siuslaw River, use conflicts are not expected to occur. There is the 
potential for other recreational users, for example, surfers, boaters, 
boarders, and divers, to use the near-shore area in the vicinity of the 
Sites, but EPA does not expect disposal operations at the Sites to 
conflict with recreationists. The final SMMP outlines site management 
objectives, including minimizing interference with other uses of the 
ocean. Should a site use conflict be identified, it is anticipated that 
site use would be modified according to the SMMP to minimize that 
conflict.
    (2) Sites must be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or undetectable contaminant concentrations or effects before reaching 
any beach, shoreline, marine sanctuary, or known geographically limited 
fishery or shellfishery (40 CFR 228.5(b)).
    Based on EPA[min]s review of modeling, monitoring data, analysis of 
sediment quality, and history of use, the primary impact of disposal 
activities on water quality is expected to be temporary turbidity 
caused by the physical movement of sediment through the water column. 
All dredged material proposed for disposal will be evaluated according 
to the ocean dumping regulations at 40 CFR 227.13 and guidance 
developed by EPA and the Corps. In general, dredged material which 
meets the criteria under 40 CFR 227.13(b) is deemed environmentally 
acceptable for ocean dumping without further testing. Dredged material 
which does not meet the criteria of 40 CFR 227.13(b) must be further 
tested as required by 40 CFR 227.13(c).
    Disposal of suitable material meeting the regulatory criteria and 
deemed environmentally acceptable for ocean dumping will be allowed at 
the Sites. Most of the dredged material to be disposed of at the Sites 
is expected to come from the entrance channel, where material is 
predominantly sand (approximately 97%), while a small amount of 
material (up to 3%) would be classified as fine-grained. Based on 
modeling work performed by the Corps, the coarser (sandy) material is 
expected to settle out of the water column within a few minutes of 
disposal while the fine-grained material is expected to settle out of 
the water column less rapidly. No increase in turbidity is expected to 
be measurable at the beach.
    (3) 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 sized the final Sites to meet this criterion. The footprints of 
the Sites are based on the presumed northerly movement of coastal 
littoral material over the course of the yearly dredging and disposal 
cycle and are needed to optimize the dispersal of material into the 
active littoral zone, limit wave effects due to mounding, and keep 
material from reentering the navigation channel to the south. Use of 
the shallower portion of the North Site will facilitate increased 
sediment transport thereby increasing long-term site capacity. 
Preferential utilization of the shallow portions of the North Site also 
meets the management goal of keeping material in the littoral system. 
However, as seen in the 1977 Interim Site, mounding could occur if too 
much material is placed too quickly in shallow water. EPA's designation 
of the two Sites with deeper areas within each Site allows site 
managers to be responsive to annual and long-term sediment transport 
patterns. Effective monitoring of the Sites is necessary and required. 
EPA requires annual bathymetric surveys to monitor each Site for 
capacity and potential mounding concerns.
    (4) EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites where 
historical disposal has occurred (40 CFR 228.5(e)).
    Disposal off the continental shelf would remove natural sediments 
from the nearshore littoral transport system, a system that functions 
with largely non-renewable quantities of sand in Oregon. Some of the 
material disposed at the Sites is expected to be available to the 
littoral system. Keeping this material in the littoral system with the 
potential to sustain a dynamic equilibrium along the Oregon coast is 
perceived as a benefit. The Sites incorporate historic disposal 
locations within the footprint of each Site, but have been expanded to 
allow more of the material to remain in the littoral system and allow 
for increased site capacity.
Specific Criteria (40 CFR 228.6)
    (1) Geographical Position, Depth of Water, Bottom Topography and 
Distance from Coast (40 CFR 228.6(a)(1)).
    The geographical position of each Site, including the depth, bottom 
topography and distance from the coastline, has been chosen to minimize 
adverse effects to the marine environment. As EPA understands the 
currents at the Sites and the influence of those currents on the 
movement of

[[Page 22528]]

material in the area, there is a high likelihood that some of the 
material disposed at the Sites, especially within in the shallower 
portion of the North site, will be transported to the littoral sediment 
circulation system. Disposal at the Sites will be managed to allow for 
maximum dispersal of material and minimal impact to each Site.
    (2) Location in Relation to Breeding, Spawning, Nursery, Feeding, 
or Passage Areas of Living Resources in Adult or Juvenile Phases (40 
CFR 228.6(a)(2)).
    The Sites are not located in exclusive breeding, spawning, nursery, 
feeding or passage areas for adult or juvenile phases of living 
resources. Near the Sites, a variety of pelagic and demersal fish 
species, including salmon, as well as shellfish, are found. The benthic 
fauna at the Sites is common to nearshore, sandy, wave-influenced 
regions of the Pacific Coast in Oregon and Washington.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The Sites, although located in close proximity to the Siuslaw River 
navigation channel, and near the northern boundary of the Oregon Dunes 
National Recreation Area, are located a sufficient distance offshore to 
avoid adverse impacts to beaches and other amenity areas including two 
public recreation areas located to the north of the Siuslaw River, 
Heceta Beach Park and Harbor Vista Park. Transportation of dredges or 
barges to and from the Sites to dispose of dredged material will be 
coordinated to avoid disturbance of other activities near the Siuslaw 
River entrance channel. There are no rocks or pinnacles in the vicinity 
of either Site. The Sites are sized and located to provide long-term 
capacity for the disposal of dredged material without causing any 
impacts to the wave environment at, or near, the Sites. Site monitoring 
and adaptive management are components of the final SMMP.
    (4) Types and Quantities of Wastes Proposed to be Disposed of, and 
Proposed Methods of Release, including Methods of Packing the Waste, if 
any (40 CFR 228.6(a)(4)).
    Dredged material found suitable for ocean disposal pursuant to the 
regulatory criteria for dredged material, or characterized by chemical 
and biological testing and found suitable for disposal into ocean 
waters, will be the only material allowed to be disposed of at the 
Sites. No material defined as ``waste'' under the MPRSA will be allowed 
to be disposed of at the Sites. The dredged material to be disposed of 
at the Sites will be predominantly marine sand, far removed from known 
sources of contamination. Generally, disposal is expected to occur from 
a hopper dredge, in which case, material will be released just below 
the surface and the disposal vessel will be required to be under power 
and to slowly transit the disposal location during disposal. This 
method of release is expected to spread material at the Sites to 
minimize mounding and to minimize impacts to the benthic community and 
to species at the Sites at the time of a disposal event.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    EPA expects monitoring and surveillance at the Sites to be feasible 
and readily performed from small surface research vessels. The Sites 
are accessible for bathymetric and side-scan sonar surveys. At a 
minimum, annual bathymetric surveys will be conducted at each of the 
Sites to confirm that no unacceptable mounding is taking place within 
the Sites or in their immediate vicinity.
    (6) Dispersal, Horizontal Transport and Vertical Mixing 
Characteristics of the Area, Including Prevailing Current Direction and 
Velocity, if any (40 CFR 228.6(a)(6)).
    Dispersal, horizontal transport and vertical mixing characteristics 
of the area at and in the vicinity of the Sites indicate that the 
marine sands and fluvial gravels from the Siuslaw River distribute away 
from the river mouth rapidly. The beaches do not show significant 
accretion or loss. The bottom current records suggest a bias in 
transport to the north. Fine grained material tends to remain in 
suspension and to experience rapid offshore transport compared to other 
sediment sizes. Sediment transport of sand-sized or coarser material 
tends to move directly as bedload, but is occasionally suspended by 
wave action near the seafloor. The Sites are not expected to change 
these characteristics.
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    Portions of the two Sites were historically used for disposal 
activity. Disposal of dredged material is not expected to result in 
unacceptable environmental degradation at the Sites or in the vicinity 
of the Sites, however mounding will be closely monitored in those 
previously used portions and preferential use of the shallower portions 
of the North Site is expected. The final SMMP includes monitoring and 
adaptive management measures to address potential mounding issues.
    (8) Interference with Shipping, Fishing, Recreation, Mineral 
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special 
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR 
228.6(a)(8)).
    The Sites are not expected to interfere with shipping, fishing, 
recreation or other legitimate uses of the ocean. Disposals at the 
Sites will be managed according to the SMMP to minimize interference 
with other legitimate uses of the ocean through careful timing and 
staggering of disposals in the Sites. Commercial and recreational 
fishing and commercial navigation are the primary concerns for which 
such timing will be needed. EPA is not aware of any plans for mineral 
extraction offshore of the Siuslaw River at this time. EPA would expect 
to revise the SMMP if necessary in the event wave energy projects or 
other renewable or traditional energy projects were proposed and 
potential conflicts seemed likely. Fish and shellfish culture 
operations are not under consideration for the area. There are no known 
areas of special scientific importance in the vicinity of the Sites.
    (9) The Existing Water Quality and Ecology of the Sites as 
Determined by Available Data or Trend Assessment of Baseline Surveys 
(40 CFR 228.6(a)(9)).
    EPA did not identify any potential adverse water quality impacts 
from ocean disposal of dredged material at the Sites based on water and 
sediment quality analyses conducted in the study area of the Sites and 
based on experience with past disposals near the mouth of the Siuslaw 
River. Fisheries and benthic data show the ecology of the area to be 
that of a mobile sand community typical of the Oregon Coast.
    (10) Potentiality for the Development or Recruitment of Nuisance 
Species in the Disposal Site (40 CFR 228.6(a)(10)).
    Nuisance species, considered as any undesirable organism not 
previously existing at a location, have not been observed at, or in the 
vicinity of, the Sites. Material expected to be disposed at the Sites 
will be uncontaminated marine sands similar to the sediment present at 
the Sites. The final SMMP includes biological monitoring requirements, 
which will act to identify any nuisance species and allow EPA to direct 
special studies and/or operational changes to address the issue if it 
arises.
    (11) Existence at or in Close Proximity to the Site of any 
Significant Natural or Cultural Feature of Historical Importance (40 
CFR 228.6(a)(11)).
    No significant cultural features were identified at, or in the 
vicinity of, the Sites. EPA coordinated with Oregon's State Historic 
Preservation Officer and with Tribes in the vicinity of the Sites to 
identify any cultural features. No cultural features were identified. 
No

[[Page 22529]]

shipwrecks were observed or documented within the Sites or their 
immediate vicinity.

3. Response to Comments

    EPA received three comments on the proposed rule. All three 
comments supported the Site designations. One commenter asked whether 
the Sites could be extended to run parallel to the coastline in order 
to create a ``speedbump'' resulting in decreased wave energy and 
erosion on the beach. The final Sites include shallow areas (less than 
50 ft), where more material is expected to remain in the littoral 
system, thereby potentially decreasing potential beach erosion. The 
creation of a nearshore ``speedbump'' or berm would dissipate wave 
energy reaching the beach, but would increase the wave height at the 
berm, potentially creating an unacceptable safety risk. The same 
commenter asked whether the sandy dredged material could be used to 
restore an eroded beach rather than be disposed in the Sites. The sandy 
dredged material in the vicinity of these Sites is already found in 
abundance onshore in the nearby Oregon Dunes Recreation Area and 
onshore dune fields. No eroded beaches in the immediate vicinity of the 
Sites for which this material is needed have been identified at this 
time.

4. Environmental Statutory Review--National Environmental Policy Act 
(NEPA); Magnuson-Stevens Act (MSA); Marine Mammal Protection Act 
(MMPA); Coastal Zone Management Act (CZMA); Endangered Species Act 
(ESA); National Historic Preservation Act (NHPA)

a. NEPA

    Section 102 of the National Environmental Policy Act of 1969, as 
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to 
prepare an Environmental Impact Statement (EIS) for major Federal 
actions significantly affecting the quality of the human environment. 
NEPA does not apply to EPA designations of ocean disposal sites under 
the MPRSA because the courts have exempted EPA's actions under the 
MPRSA from the procedural requirements of NEPA through the functional 
equivalence doctrine. EPA has, by policy, determined that the 
preparation of non-EIS NEPA documents for certain EPA regulatory 
actions, including actions under the MPRSA, is appropriate. EPA's 
``Notice of Policy and Procedures for Voluntary Preparation of NEPA 
Documents,'' (Voluntary NEPA Policy), 63 FR 58045, (October 29, 1998), 
sets out both the policy and procedures EPA uses when preparing such 
environmental review documents. EPA's primary voluntary NEPA document 
for designating the Sites is the final Siuslaw River, Oregon Ocean 
Dredged Material Disposal Sites Evaluation Study and Environmental 
Assessment, April 2010 (EA), jointly prepared by EPA and the Corps. The 
final EA and its Technical Appendices, which are part of the docket for 
this action, provided the threshold environmental review for 
designation of the two Sites. The information from the EA was used 
extensively in the discussion of the ocean dumping criteria.

b. MSA and MMPA

    EPA prepared an essential fish habitat (EFH) assessment pursuant to 
Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-Stevens Act, as 
amended (MSA), 16 U.S.C. 1801 to 1891d, and submitted that assessment 
to the National Marine Fisheries Service in July, 2009. NMFS reviewed 
EPA's EFH assessment and an Endangered Species Act (ESA) Biological 
Assessment and addendum thereto for purposes of the Marine Mammal 
Protection Act of 1972, as amended (MMPA), 16 U.S.C. 1361 to 1389. NMFS 
found that all potential adverse effects to ESA-listed marine mammals 
from EPA's action to designate the Siuslaw Sites are discountable or 
insignificant. Those findings are documented in the Biological Opinion 
issued by NMFS to EPA on April 16, 2010. With respect to EFH, NMFS 
concluded that disposal of dredged material will affect turbidity and 
sedimentation levels and temporarily decrease prey and nursery 
resources for pelagic organisms within the Sites during disposal 
events. However, these effects are avoidable or can be offset or 
mitigated through further evaluation of the effects and further study 
of seasonal distribution, abundance and habitat use. These findings are 
documented in the ``Magnuson-Stevens Fishery Conservation and 
Management Act'' section of the Biological Opinion. NMFS included two 
``conservation recommendations'' which encouraged an effects evaluation 
and a study on distribution, abundance and habitat use. EPA will 
respond in a separate written response to the NMFS recommendations.

c. CZMA

    The Coastal Zone Management Act, as amended (CZMA), 16 U.S.C. 1451 
to 1465, requires Federal agencies to determine whether their actions 
will be consistent with the enforceable policies of approved State 
programs. EPA prepared a consistency determination for the Oregon Ocean 
and Coastal Management Program (OCMP), the approved State program in 
Oregon, to meet the requirements of the CZMA and submitted that 
determination to the Oregon Department of Land Conservation and 
Development (DLCD) for review on January 19, 2010. On April 14, 2010, 
DLCD concurred in writing with EPA that the Site designations were 
consistent to the maximum extent practicable with the enforceable 
policies of the OCMP.

d. ESA

    The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to 
1544, requires Federal agencies to consult with NMFS and the U.S. Fish 
and Wildlife Service (USFWS) to ensure that any action authorized, 
funded, or carried out by the Federal agency is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of any critical habitat. EPA prepared a Biological Assessment (BA) to 
assess the potential effects of designating the two Siuslaw River Sites 
on aquatic and wildlife species and submitted that BA to the NMFS and 
USFWS in July, 2009. Subsequent to preparation of the BA, EPA prepared 
an addendum to the BA, which was submitted in December, 2009. EPA found 
that site designation does not have a direct impact on any of the 
identified ESA species but also found that indirect impacts associated 
with reasonably foreseeable future disposal activities had to be 
considered. These indirect impacts included a short-term increase in 
suspended solids and turbidity in the water column when dredged 
material was disposed at the new Sites and an accumulation of material 
on the ocean floor when material was disposed at the Sites. EPA 
concluded that while its action may affect ESA-listed species, the 
action would not be likely to adversely affect ESA-listed species or 
critical habitat. On August 24, 2009, the USFWS concurred in writing 
with EPA's finding that the Site designations would not likely 
adversely affect ESA-listed species or critical habitat.
    NMFS issued a Biological Opinion (BO) on April 21, 2010. NMFS 
concluded that EPA's action is not likely to jeopardize the continued 
existence of Oregon Coast (OC) coho salmon or southern green sturgeon 
(Acipenser medirostris), or to destroy or adversely modify critical 
habitat designated for green sturgeon. NMFS

[[Page 22530]]

also concluded that EPA's action would not likely adversely affect 
southern green sturgeon, euchalon, eastern Stellar sea lions, blue 
whales, fin whales, humpback whales, Southern Resident Killer whales, 
marine turtle species, or critical habitat designated for southern 
green sturgeon or proposed for green leatherback turtles. NMFS 
concluded that dredging activities were not interrelated to EPA's 
action. However, NMFS did make a finding that disposal of dredged 
material at the Sites by the Corps, the anticipated primary user of the 
Sites, was interrelated to EPA's action.
    NMFS then focused its effects analysis on the effects of disposal 
at the Sites. Looking solely to the effects of disposal of dredged 
material at the Sites by the Corps from the Corps' Siuslaw River 
Navigation project, NMFS estimated 19 juvenile OC coho salmon per year 
were likely to be injured or killed by Corps activities. NMFS 
acknowledged that EPA's action does not authorize or compel site use 
and will not itself result in disposal of dredged material. NMFS found 
that all incidental take will occur at the project-specific level. 
Based on this finding, NMFS did not find a basis to provide a take 
authorization in the current BO. NMFS stated that all take 
authorization will occur in subsequent site-specific consultations.
    Finally NMFS included two discretionary conservation 
recommendations in the BO. The first recommendation suggested 
collaborating with NMFS and the Corps on a methodology to evaluate the 
effects of dredging and disposal on ESA-listed species. The second 
recommendation suggested undertaking a study to determine seasonal 
distribution, abundance, and habitat use of salmon, sturgeon, and 
marine turtles in the nearshore within and near the contour of 
designated ocean dredged material disposal sites. Such recommendations 
are purely advisory in nature. EPA appreciates that collaboration on a 
methodology could be helpful and supports NMFS and Corps efforts in 
such an endeavor. EPA also appreciates that the study recommended by 
NMFS could contribute to the scientific knowledge base but believes 
that NMFS, the expert Federal agency on seasonal distribution, 
abundance and habitat use would be better suited than EPA to carry out 
such a study.

e. NHPA

    EPA initiated consultation with the State of Oregon's Historic 
Preservation Officer (SHPO) on November 24, 2009, to address the 
National Historic Preservation Act, as amended (NHPA), 16 U.S.C. 470 to 
470a-2, which requires Federal agencies to take into account the effect 
of their actions on districts, sites, buildings, structures, or 
objects, included in, or eligible for inclusion in the National 
Register. EPA determined that no historic properties were affected, or 
would be affected, by designation of the Sites. EPA did not find any 
historic properties within the geographic area of the Sites. This 
determination was based on an extensive review of the National Register 
of Historic Districts in Oregon, the Oregon National Register list and 
an assessment of cultural resources near the Sites. The SHPO concurred 
by letter on December 10, 2009, that the project would have no affect 
on any known cultural resources.

4. Statutory and Executive Order Reviews

    This rule finalizes the designation of two ocean dredged material 
disposal sites pursuant to Section 102 of the MPRSA. This action 
complies with applicable executive orders and statutory provisions as 
follows:

a. Executive Order 12866

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

b. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., 
because this rule does not establish or modify any information or 
recordkeeping requirements for the regulated community.

c. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires Federal 
agencies to prepare a regulatory flexibility analysis of any rule 
subject to notice and comment rulemaking requirements under the 
Administrative Procedure Act or any other statute unless the agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities. Small entities include small 
businesses, small organizations, and small governmental jurisdictions. 
For purposes of assessing the impacts of this rule on small entities, 
small entity is defined as: (1) A small business defined by the Small 
Business Administration's size regulations at 13 CFR 121.201; (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district, or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field. EPA determined that this action will not have a 
significant economic impact on small entities because the final rule 
will only have the effect of regulating the location of sites to be 
used for the disposal of dredged material in ocean waters. After 
considering the economic impacts of this final rule, I certify that 
this action will not have a significant economic impact on a 
substantial number of small entities.

d. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 
1531 to 1538, for State, local, or Tribal governments or the private 
sector. This action imposes no new enforceable duty on any State, local 
or Tribal governments or the private sector. Therefore, this action is 
not subject to the requirements of sections 202 or 205 of the UMRA. 
This action is also not subject to the requirements of section 203 of 
the UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small government entities. Those 
entities are already subject to existing permitting requirements for 
the disposal of dredged material in ocean waters.

e. Executive Order 13132: Federalism

    This action does not have federalism implications. It does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among various levels of government, as specified 
in Executive Order 13132. Thus, Executive Order 13132 does not apply to 
this action.

f. 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 designation of the two ocean dredged 
material disposal Sites will not have a direct effect on Indian Tribes, 
on the relationship between the Federal government and Indian Tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian Tribes. Thus, Executive Order 13175 does 
not apply to this action. Although Executive Order 13175 does not apply 
to this action EPA consulted with Tribal

[[Page 22531]]

officials in the development of this action, particularly as the action 
related to potential impacts to historic or cultural resources.

g. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885) as applying only 
to those regulatory actions that concern health or safety risks, such 
that the analysis required under section 5-501 of the Executive Order 
has the potential to influence the regulation. This action is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks. The 
action concerns the designation of two ocean dredged material disposal 
Sites and only has the effect of providing designated locations to use 
for ocean disposal of dredged material pursuant to Section 102(c) of 
the MPRSA.

h. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355) because it is not a ``significant 
regulatory action'' as defined under Executive Order 12866.

i. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272), 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency decides not to use available 
and applicable voluntary consensus standards. This action includes 
environmental monitoring and measurement as described in EPA's SMMP. 
EPA will not require the use of specific, prescribed analytic methods 
for monitoring and managing the designated Sites. The Agency plans to 
allow the use of any method, whether it constitutes a voluntary 
consensus standard or not, that meets the monitoring and measurement 
criteria discussed in the SMMP.

j. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low Income Populations

    Executive Order 12898 (59 FR 7629) establishes Federal executive 
policy on environmental justice. Its main provision directs Federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. EPA determined that this rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. EPA assessed the overall protectiveness of designating the 
disposal Sites against the criteria established pursuant to the MPRSA 
to ensure that any adverse impact to the environment will be mitigated 
to the greatest extent practicable.

k. Congressional Review Act

    The Congressional Review Act (CRA), 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 the 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 June 1, 2010.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Authority: This action is issued under the authority of Section 
102 of the Marine Protection, Research, and Sanctuaries Act, as 
amended, 33 U.S.C. 1401, 1411, 1412.

    Dated: April 21, 2010.
Dennis J. McLerran,
Regional Administrator, Region 10.

0
For the reasons set out in the preamble, EPA amends chapter I, title 40 
of the Code of Federal Regulations as follows:

PART 228--[AMENDED]

0
1. The authority citation for Part 228 continues to read as follows:

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

0
2. Section 228.15 is amended by adding paragraph (n)(14) to read as 
follows:

Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (n) * * *
    (14) Siuslaw River, OR--North and South Dredged Material Disposal 
Sites
    (i) North Siuslaw River Site
(A) Location:

44[deg]01[min]31.03[sec] N, 124[deg]10[min]12.92[sec] W,
44[deg]01[min]49.39[sec] N, 124[deg]10[min]02.85[sec] W,
44[deg]01[min]31.97[sec] N, 124[deg]09[min]01.86[sec] W,
44[deg]01[min]13.45[sec] N, 124[deg]09[min]11.41[sec] W.

    (B) Size: Approximately 1.5 kilometers long and 0.6 kilometers 
wide.
    (C) Depth: Ranges from approximately 9 to 35 meters.
    (D) Primary Use: Dredged material.
    (E) Period of Use: Continuing Use.
    (F) Restrictions: (1) Disposal shall be limited to dredged material 
determined to be suitable for ocean disposal according to 40 CFR 227.13 
from the Siuslaw River navigation channel and adjacent areas;
    (2) Disposal shall be managed by the restrictions and requirements 
contained in the currently-approved Site Management and Monitoring Plan 
(SMMP);
    (3) Monitoring, as specified in the SMMP, is required.
    (ii) South Siuslaw River Site
    (A) Location:

44[deg]00[min]46.72[sec] N, 124[deg]10[min]26.55[sec] W,
44[deg]01[min]06.41[sec] N, 124[deg]10[min]24.45[sec] W,
44[deg]01[min]04.12[sec] N, 124[deg]09[min]43.52[sec] W,
44[deg]00[min]44.45[sec] N, 124[deg]09[min]45.63[sec] W.

    (B) Size: Approximately 0.9 kilometers long and 0.6 kilometers 
wide.
    (C) Depth: Ranges from approximately 24 to 38 meters.
    (D) Primary Use: Dredged material.
    (E) Period of Use: Continuing Use.
    (F) Restrictions: (1) Disposal shall be limited to dredged material 
determined to be suitable for ocean disposal according to 40 CFR 
227.13, from the Siuslaw River navigation channel and adjacent areas;
    (2) Disposal shall be managed by the restrictions and requirements 
contained in the currently-approved Site Management and Monitoring Plan 
(SMMP);

[[Page 22532]]

    (3) Monitoring, as specified in the SMMP, is required.
* * * * *
[FR Doc. 2010-9982 Filed 4-28-10; 8:45 am]
BILLING CODE 6560-50-P
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