44220 Federal Register / Vol. 81, No. 130 / Thursday, July 7, 2016 / Rules and Regulations 

(1) Areas of Alaska that are not 

accessible by the Federal Aid Highway 

System (FAHS). 

(2) Areas of Alaska that meet all of the 

following criteria: 

(i) The only connection to the FAHS 

is through the Alaska Marine Highway 

System, or the stationary CI ICE 

operation is within an isolated grid in 

Alaska that is not connected to the 

statewide electrical grid referred to as 

the Alaska Railbelt Grid. 

(ii) At least 10 percent of the power 

generated by the stationary CI ICE on an 

annual basis is used for residential 

purposes. 

(iii) The generating capacity of the 

source is less than 12 megawatts, or the 

stationary CI ICE is used exclusively for 

backup power for renewable energy. 

* * * * * 

[FR Doc. 2016–16045 Filed 7–6–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 228 

[EPA–R01–OW–2016–0068; FRL–9948–61– 

Region 1] 

Ocean Disposal; Amendments to 

Restrictions on Use of Dredged 

Material Disposal Sites in the Central 

and Western Regions of Long Island 

Sound; Connecticut 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) today is amending federal 

regulations that designated, and placed 

restrictions on the use of, the Central 

Long Island Sound and Western Long 

Island Sound dredged material disposal 

sites, located offshore from New Haven 

and Stamford, Connecticut, 

respectively. The amended regulations 

incorporate standards and procedures 

for the use of those sites consistent with 

those recommended in the Long Island 

Sound Dredged Material Management 

Plan, which was completed by the U.S. 

Army Corps of Engineers on January 11, 

2016. The Dredged Material 

Management Plan identifies a wide 

range of alternatives to open-water 

disposal and recommends standards 

and procedures for determining which 

alternatives to pursue for different 

dredging projects, so as to reduce or 

eliminate the open-water disposal of 

dredged material. 

DATES: This final regulation is effective 

on August 8, 2016. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R01–OW–2016– 

0068. All documents in the docket are 

listed on the 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: 

Stephen Perkins, U.S. Environmental 

Protection Agency, New England 

Regional Office, 5 Post Office Square, 

Suite 100, Mail Code: OEP06–3, Boston, 

MA 02109–3912, telephone (617) 918– 

1501, electronic mail: perkins.stephen@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Organization of this document. The 

following outline is provided to aid in 

locating information in this preamble. 

I. Background 

II. Response to Comments 

III. Changes From the Proposed Rule 

IV. Compliance With Statutory and 

Regulatory Requirements 

V. Final Action 

VI. Statutory and Executive Order Reviews 

I. Background 

On February 10, 2016, EPA published 

in the Federal Register (81 FR 7055) a 

proposed rule (the Proposed Rule) 

amending federal regulations that 

designated, and placed restrictions on 

the use of, the Central Long Island 

Sound (CLDS) and Western Long Island 

Sound (WLDS) dredged material 

disposal sites, located offshore from 

New Haven and Stamford, Connecticut, 

respectively. The existing restrictions on 

the sites were imposed when EPA 

designated CLDS and WLDS (70 FR 

32498) (the 2005 Rule), to ensure 

appropriate use and management of the 

designated disposal sites and to support 

the common goal of New York and 

Connecticut to reduce or eliminate the 

disposal of dredged material in Long 

Island Sound. 

To support this goal, the restrictions 

in the 2005 Rule contemplated that 

there would be a regional dredged 

material management plan (DMMP) for 

Long Island Sound that would help to 

guide the management of dredged 

material from projects which occur after 

completion of the DMMP. The amended 

restrictions in this Final Rule 

incorporate standards and procedures 

for the use of those sites consistent with 

those recommended in the Long Island 

Sound DMMP, which was completed by 

the U.S. Army Corps of Engineers 

(USACE) on January 11, 2016. 

The restrictions imposed on the sites 

in the 2005 Rule also included 

conditions that specified that use of the 

sites would be suspended if, within 120 

days of completion of the DMMP, and 

subject to EPA’s consideration of public 

comments, EPA does not issue legally 

binding final amendments adopting 

such procedures and standards. Any 

such suspension in the use of the sites 

would be lifted if and when EPA issues 

the required final rule. 

II. Response to Comments 

EPA received comments on the 

Proposed Rule from 119 individuals, 

groups or entities. Comments were 

received from the Connecticut 

Congressional Delegation, USACE, the 

states of Connecticut and New York, a 

number of municipalities, 

environmental groups, harbor and 

marine trade groups, and many private 

citizens. Approximately eighty percent 

of the commenters supported the 

Proposed Rule, with some offering 

suggested improvements. The remainder 

expressed opposition in part or in whole 

to the Proposed Rule. A document 

containing copies of all of the public 

comments received by EPA and a 

document containing EPA’s response to 

each of the comments have been placed 

in the public docket and on the Web site 

identified in the ADDRESSES section of 

this document. There was significant 

overlap among the comments received. 

Below, EPA summarizes the main 

points of the commenters and provides 

responses. 

Comment #1. A number of 

commenters, including the states of 

Connecticut and New York, asked that 

EPA be explicit in retaining the 

common goal of the 2005 Rule—to 

reduce or eliminate open-water disposal 

of dredged material in Long Island 

Sound. 

Response #1. EPA did not intend to 

signal any change to the goal of the 2005 

Rule. In fact, the goal was so stated in 

the first paragraph of the Background 

section of the Proposed Rule. EPA did 

not include the goal statement in the 

proposed regulations because it was 

previously included in a provision 

addressing development of the DMMP 

and EPA deleted that provision because 

the DMMP had been completed. Again, 

EPA did not by this deletion intend to 

signal a change in the goal. Therefore, 

to address this comment, EPA has 

added a sentence, restating the common 

goal, in the introductory paragraph 

(b)(4)(vi) in the Final Rule. 

Comment #2. The states of 

Connecticut and New York proposed 

similar ideas for revisions to the 

Proposed Rule intended to spur 

increased beneficial use and result in 

staged reductions in open water 


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disposal of dredge material over time. 

The suggested revisions include 

creation of a Steering Committee, 

consisting of high level representatives 

from the states, EPA and USACE. The 

comments propose that the charge to the 

Steering Committee would be to 

develop a baseline for the amount of 

dredged material being placed in open 

water and the amount being beneficially 

used, and to establish a reasonable and 

practicable series of stepped objectives 

(with timeframes) for reducing the 

amount of open-water placement and 

increasing the amount of beneficially 

used material, while also recognizing 

that there will be fluctuations in annual 

volumes of dredged material generated 

due to the very nature of the dredging 

program. The comments also call for the 

stepped objectives to incorporate an 

adaptive management approach toward 

continuous improvement, and for the 

charge to the Steering Committee also to 

include developing accurate methods to 

track reductions, with due consideration 

for annual fluctuations in the amount of 

dredging, and reporting on progress. 

The comments suggest that when 

tracking progress, it would be 

recognized that exceptional 

circumstances may result in delays in 

meeting an objective. Exceptional 

circumstances should be infrequent, 

irregular and unforeseeable. Certain 

other commenters also supported the 

inclusion of a staged reduction in openwater disposal. 

Response #2. EPA agrees with 

Connecticut and New York that it would 

be useful to formally establish the Long 

Island Sound Steering Committee 

(Steering Committee), consisting of high 

level representatives from the two 

states, EPA, USACE, and, as 

appropriate, other federal and state 

agencies. A Steering Committee, 

consisting of the same parties, was 

established previously to guide the 

development of the DMMP and has 

provided a useful forum for interagency 

collaboration on dredged material 

management in the Long Island Sound 

region. Other participants could include 

the National Oceanic and Atmospheric 

Administration’s (NOAA) National 

Marine Fisheries Service (NMFS), 

which had a seat on the previous 

Steering Committee, and the state of 

Rhode Island, which had a seat on the 

previous Long Island Sound Regional 

Dredging Team (LIS RDT), and may 

have more interest now that the LIS 

RDT’s geographic scope includes 

eastern Long Island Sound. Consistent 

with the comments, the Final Rule 

includes a provision establishing a 

Steering Committee to provide policylevel direction to the LIS RDT and 

facilitate high-level collaboration among 

the agencies critical to accelerating the 

development and use of beneficial 

alternatives for dredged material. 

The charge to the Steering Committee 

includes: Developing a baseline for the 

volume and percentage of dredged 

material being placed in open water and 

the volume and percentage being 

beneficially used; establishing a 

reasonable and practicable series of 

stepped objectives (with timeframes) for 

reducing the amount of dredged 

material placed in open-water sites and 

increasing the amount of material that is 

beneficially used, while also 

recognizing that there will be 

fluctuations in annual volumes of 

dredged material generated due to the 

very nature of the dredging program; 

and developing methods for accurately 

tracking reductions with due 

consideration for annual fluctuations. 

EPA agrees, and has provided, that the 

stepped objectives should incorporate 

an adaptive management approach 

toward continuous improvement. The 

Final Rule also provides that, when 

tracking progress, the Steering 

Committee will recognize that 

exceptional circumstances may result in 

delays in meeting an objective, and that 

exceptional circumstances should be 

infrequent, irregular and unpredictable. 

In carrying out its tasks, the Steering 

Committee will guide and utilize the 

LIS RDT, as appropriate. 

To be clear, neither the 2005 Rule nor 

the new amendments to the Rule require 

or command either Connecticut or New 

York (or Rhode Island) to participate on 

the Steering Committee or the LIS RDT. 

Participation by the states is voluntary. 

That said, EPA expects that the states 

will choose to participate on the 

Steering Committee and the LIS RDT. 

This expectation is based on several 

factors: (1) Connecticut and New York 

both commented in favor of constituting 

a Steering Committee and LIS RDT as 

discussed above; (2) the Steering 

Committee and LIS RDT will provide a 

dedicated venue for federal/state interagency communication and 

collaboration on dredging and dredged 

material disposal projects of interest and 

these sorts of discussions already take 

place and are often necessary due to the 

legal and programmatic responsibilities 

of the various agencies; and (3) New 

York, Connecticut, and Rhode Island 

participated on the LIS RDT created 

under the 2005 Rule and New York and 

Connecticut participated on the Steering 

Committee associated with development 

of the DMMP. Given that EPA 

anticipates that Connecticut and New 

York, and possibly Rhode Island, will 

voluntarily participate on the Steering 

Committee and the LIS RDT, EPA also 

expects that each of the agencies will 

commit the necessary resources to make 

that participation on the Steering 

Committee and LIS RDT meaningful, 

including resources needed to support 

collection of data for establishing the 

baseline and tracking and reporting on 

the future disposition of dredged 

materials. 

Comment #3. Some commenters 

encouraged giving increased attention to 

implementation, as distinguished from 

simply identification, of feasible 

alternatives, and encouraged funding 

demonstration/pilot programs for 

alternative methods of beneficial use. 

They noted the importance of the states 

and all stakeholders working together to 

find and promote alternative uses for 

dredged material and encouraged the 

states to amend regulations to facilitate 

beneficial, environmentally sound use 

of suitable materials upland. The states 

of Connecticut and New York expressed 

their commitment to working with 

federal and state partners to develop 

and promote the use of innovative and 

practicable alternatives to open water 

disposal. Activities that may facilitate 

and establish a path forward include 

committing to jointly implement two 

pilot projects, identifying possible 

resources, and removing regulatory 

hurdles. 

Response #3. EPA agrees with the 

commenters that a concerted, 

collaborative effort among state and 

federal partners will be needed to spur 

greater use of beneficial alternatives, 

including piloting alternatives, 

identifying possible resources, and 

eliminating regulatory barriers, when 

appropriate. EPA believes the Steering 

Committee should guide these efforts, 

with the support of the LIS RDT, and 

has included this among the 

responsibilities of the Steering 

Committee and LIS RDT in the Final 

Rule. 

Comment #4. The states of 

Connecticut and New York expressed 

support for EPA’s proposal to charge the 

LIS RDT to review each project and 

require beneficial use of dredged 

material, where practicable, utilizing the 

EPA definition of practicable. They felt 

it was important to note that the LIS 

RDT should be consulted starting in the 

early stages of project planning for 

consideration of beneficial use 

opportunities. 

Response #4. EPA agrees that the LIS 

RDT will be most effective in its role 

reviewing dredging projects if it is 

actively encouraging beneficial use 

alternatives and if there is an 

expectation that dredging project 


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proponents should consult with the LIS 

RDT early in the process of planning a 

project to have a full view of possible 

alternatives for their project. The Final 

Rule contains language clarifying this 

aspect of the LIS RDT review process. It 

also should be noted that the LIS RDT 

makes recommendations to the USACE; 

the LIS RDT does not directly ‘‘require’’ 

that dredged material be managed in 

any particular way. 

In response to this comment and 

Comment #5 below, the Final Rule 

clarifies certain of the roles and 

expectations of the LIS RDT. It 

establishes the relationship between the 

Steering Committee, which provides 

policy-level direction to the LIS RDT, 

and the LIS RDT, which has the 

responsibility for execution. It also 

provides additional detail on the 

organization and procedures for the LIS 

RDT. EPA views the charter under 

which the LIS RDT has operated during 

the development of the DMMP as a 

useful starting point for a new charter 

that encompasses the new roles, 

responsibilities, and makeup of the LIS 

RDT. The current LIS RDT charter will 

serve as the interim guide for the LIS 

RDT’s process until a new charter is 

developed. 

Comment #5. USACE believes the role 

of the LIS RDT should be one of an 

informational resource and collaborator 

rather than a body charged with 

providing ‘‘recommendations’’ to the 

Corps. They raised concerns regarding 

whether the role of the LIS RDT is in 

compliance with the Federal Advisory 

Committee Act (FACA) since it is 

required to provide ‘‘recommendations’’ 

to the USACE. 

Response #5. EPA notes that the 2005 

Rule established the LIS RDT and 

charged it with making 

‘‘recommendations’’ until the 

completion of the DMMP. The Proposed 

Rule incorporated the same language in 

providing for the LIS RDT to continue 

into the future. The ‘‘recommendations’’ 

of the LIS RDT are not formal decisions 

subject to appeal, but, rather, are advice 

to the USACE as to how the LIS RDT 

thinks particular dredged material 

should be managed. The LIS RDT will 

attempt to make consensus 

recommendations to the USACE, but if 

consensus cannot be achieved, 

individual LIS RDT member agencies 

may offer their own comments through 

the standard regulatory process. 

Presumably, recommendations will be 

based upon whether or not the LIS RDT 

(or an individual agency) believes it has 

identified one or more practicable 

alternatives to open-water disposal for a 

particular project. 

Recommendations from the LIS RDT 

or its members are not binding upon the 

USACE, EPA or any other state or 

federal agency. While the USACE must 

fully consider the recommendations, 

EPA does not intend for the LIS RDT to 

in any way usurp the USACE’s authority 

to make independent decisions 

regarding the placement of dredged 

material. At the same time, the USACE’s 

decisions regarding whether to 

authorize dredged material disposal 

under the MPRSA continue to be subject 

to EPA review and concurrence under 

Section 103(c) of the MPRSA, 33 U.S.C. 

1413(c), and 40 CFR 225.2. While EPA 

will also consider recommendations of 

the LIS RDT or its members, EPA also 

does not intend for the LIS RDT to in 

any way usurp EPA’s authority to make 

independent decisions in its review of 

USACE decisions regarding whether to 

authorize the open-water disposal of 

dredged material. 

EPA does not intend for the LIS RDT, 

in the exercise of its responsibility to 

review projects, to unduly delay the 

USACE’s decision-making. EPA expects 

that the LIS RDT will report to the 

USACE on its review of specific projects 

within 30 days of receipt of project 

information. If the LIS RDT fails to 

report to the USACE in this timeframe, 

the USACE may proceed with its permit 

decision process. The Final Rule 

contains language clarifying this point. 

Regarding USACE’s concerns about 

the FACA, EPA has carefully reviewed 

the roles of the LIS RDT and Steering 

Committee as contained in the Final 

Rule and finds that the LIS RDT and 

Steering Committee are exempt from the 

FACA under 2 U.S.C. 1534(b). See also 

Memorandum by the Office of 

Management and Budget (OMB) 

entitled, ‘‘SUBJECT: Guidelines and 

Instructions for Implementing Section 

204, ‘State, Local, and Tribal 

Government Input,’ of Title II of P.L. 

104–4’’ (Sept. 21, 1995). At the same 

time, creating federal/state committees 

such as the LIS RDT and Steering 

Committee to share information and 

advice and recommendations is also 

consistent with the FACA and relevant 

implementing guidance from OMB. 

Comment #6. New York State 

requested that, to provide additional 

‘‘surety’’ that the goal of reducing or 

eliminating open water disposal is met, 

an additional provision be included in 

the rule to provide that if there is an 

initial failure to maintain or reduce the 

amount of disposal over the next ten 

years, as measured at year 10, then the 

rule can be re-opened upon a petition to 

EPA. 

Response #6. EPA is confident that 

the restrictions contained in today’s 

Final Rule will be sufficient to make 

progress toward the goal of reducing or 

eliminating open-water disposal. 

However, if the volume of dredged 

material disposed of at the sites, as 

measured ten years from now, has 

increased, it may be an indication that 

the standards and procedures contained 

in the Final Rule have not succeeded as 

intended. Alternatively, it may indicate 

that despite successful efforts to 

maximize dredged material management 

by methods other than open-water 

disposal, it is even more difficult to 

identify or develop such alternative 

methods of dredged material 

management than is currently 

anticipated. In either case, EPA agrees 

that it is reasonable to include an 

explicit provision in the Final Rule that 

provides any party with the opportunity 

under these circumstances to petition 

EPA to amend the regulations. EPA has 

added paragraph (b)(4)(vi)(H) to the 

Final Rule, to provide for this. EPA has 

not, however, prejudged whether it will 

find any regulatory amendments to be 

appropriate. EPA will assess and decide 

upon any such petition based on the 

facts and law prevailing at the time of 

the petition. 

Comment #7. Several commenters 

noted that cost should not be the 

overwhelming factor in the decisionmaking process. In their view, cost 

seems only assigned to beneficial use. 

They believe cost and potential funding 

mechanisms for greater use of 

alternatives should be included. 

Response #7. Cost is a very important 

component of the decision-making 

process. USACE is constrained by 

statute, regulation, and policies that 

govern what they can use federal funds 

for. The Federal Base Plan for any 

particular project is defined as the least 

cost, environmentally acceptable 

alternative for constructing the project 

that is consistent with sound 

engineering practices. Thus, projects are 

planned, designed and constructed in a 

manner that efficiently uses very limited 

federal fiscal resources and that meets 

applicable environmental standards. 

The term Federal Standard is often used 

synonymously with Federal Base Plan, 

and is defined in USACE regulations as 

the least costly dredged material 

placement alternative identified by the 

USACE that is consistent with sound 

engineering practices and meets the 

environmental standards established by 

EPA’s Clean Water Act (CWA) 

§ 404(b)(1) guidelines evaluation 

process or EPA’s ocean dumping criteria 

under the MPRSA. [33 CFR 335.7] See 

also 33 CFR 336.1(c)(1). 

If a beneficial use is selected for a 

project and that beneficial use happens 


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to be (or be part of) the Federal Base 

Plan option for the project, the costs of 

that beneficial use are assigned to the 

navigational purpose of the project. 

Beneficial use project costs exceeding 

the cost of the Federal Base Plan 

(Federal Standard) option become either 

a shared federal and non-federal 

responsibility, or entirely a non-federal 

responsibility, depending on the type of 

beneficial use and the applicability of 

federal funding authority. 

The DMMP makes clear the USACE’s 

willingness to use the authorities 

available to it to pay for what it lawfully 

can. The authorities that allow USACE 

to pursue alternatives beyond the Base 

Plan all require some prescribed 

percentage of non-federal cost-sharing. 

Identifying future sources of non-federal 

cost sharing is one of the important 

challenges for the Steering Committee 

and LIS RDT. 

Beyond trying to find funding sources 

for costs above the Federal Standard, 

another important role for the LIS RDT 

is to identify incentives and remove 

barriers to beneficial use such that the 

cost of alternatives becomes more 

competitive with open-water disposal. It 

has become clear in recent years that 

sandy dredged material is a valuable 

commodity, especially along New 

England’s beachfronts. Thus there are 

economic as well as environmental 

factors that result in most suitable sandy 

dredge material being used beneficially, 

principally for beach and nearshore bar 

nourishment. The next challenge is to 

find economic and beneficial 

environmental uses for suitable silty 

material. As coastal resiliency becomes 

an increasingly important priority, EPA 

is hopeful that, and thinks that there is 

a good chance that, opportunities for 

beneficial uses of silty material will 

emerge and expand. 

Comment #8. USACE expressed 

concern that the Proposed Rule could 

have a significant adverse impact on 

federal navigation by potentially adding 

significant costs to USACE projects. 

Specifically, the USACE is concerned 

that a scenario could arise where a 

practicable alternative is identified that 

exceeds the Federal Standard and 

therefore would require a non-federal 

sponsor to fund the difference in cost. 

If a non-federal sponsor could not do so 

or refused to do so, disposal at the CLDS 

or WLDS would then be prohibited and 

the project could not go forward because 

of the existence of a practicable 

alternative to open-water disposal. As 

such, this provision of the Proposed 

Rule would impact the USACE’s 

application of the Federal Standard and 

negatively impact maintenance of 

Federal Navigation Projects in Long 

Island Sound. The USACE also 

expressed a related concern that the 

requirement that any practicable 

alternative be fully utilized for the 

maximum volume of material 

practicable could require USACE to 

dispose of material at more than one 

location, potentially adding significant 

cost. 

The concern about the possibility that 

a project might not go forward was 

echoed by the Connecticut 

Congressional Delegation. In order to 

effectively maintain the balance 

between environmental and economic 

benefits of Long Island Sound, they 

urged that some certainty regarding the 

potential cost of maintenance projects 

must be included in the final language. 

Knowing the makeup of dredged 

material from each navigation project is 

different, they understand that 

placement alternatives need to be 

examined on a case-by-case basis. They 

noted that EPA itself recognizes in the 

Proposed Rule that the lack of clarity on 

future project costs ‘‘could result in 

deferral of maintenance or improvement 

projects that could impact navigation.’’ 

The delegation expressed hope that the 

Final Rule will more clearly address this 

issue. 

Response #8. The term ‘‘practicable 

alternative’’ is defined in 40 CFR 

227.16(b) of EPA’s MPRSA regulations 

as an alternative that is ‘‘available at 

reasonable incremental cost and energy 

expenditures, [and] which need not be 

competitive with the costs of ocean 

dumping, taking into account the 

environmental benefits derived from 

such activity, including the relative 

adverse environmental impacts 

associated with the use of alternatives to 

ocean dumping.’’ The definition has 

been part of the restrictions on the CLDS 

and WLDS since the 2005 Rule 

(compare (b)(4)(vi)(I)(1) and (2) in the 

2005 Rule with (b)(4)(vi)(C)(1) and (2) in 

the Proposed Rule). The accompanying 

discussions in the preamble of the 2005 

Rule and the Proposed Rule are 

essentially the same. In the nearly 

eleven years that the restrictions have 

been in place there have been no 

instances where a dredging project 

could not go forward on this basis. 

Furthermore, neither the 2005 Rule nor 

the current amendments create a new 

definition of practicable; they simply 

cross-reference and rely upon the preexisting definition in EPA’s regulations 

at 40 CFR 227.16(b), which was 

promulgated in 1977. 42 FR 2476, 2479 

(Jan. 11, 1977). Meanwhile, the USACE 

defines ‘‘practicable’’ as follows: 

‘‘Practicable means available and 

capable of being done after taking into 

consideration cost, existing technology, 

and logistics in light of overall project 

purposes.’’ 33 CFR 335.7. 

The possibility that EPA and USACE 

might disagree whether or not an 

alternative is ‘‘practicable’’ is rooted, in 

part, in the fact that the two agencies 

have different regulatory definitions of 

the term ‘‘practicable.’’ That difference 

has existed since at least 1988, when the 

USACE’s current regulatory definition 

was promulgated. At the same time, 

although the two definitions are 

different, they are similar and have 

important commonalities. Under both 

definitions, a practicable alternative 

must be available taking cost and other 

factors into consideration. As a result, 

EPA expects that it would be an unusual 

case in which the two definitions would 

lead to different conclusions about an 

alternative’s practicability. Indeed, EPA 

is unaware of any project in New 

England that has been stopped due to 

the difference in definitions. 

In any event, EPA’s definition of 

‘‘practicable’’ and its application do not 

directly affect the USACE’s definition of 

the Federal Standard. If EPA determines 

that an alternative is ‘‘practicable,’’ then 

non-federal sponsors will need to be 

found to pay for the incremental cost 

above what the USACE can legally 

participate in. One of the important 

roles of the Steering Committee and LIS 

RDT described earlier, is the 

identification and piloting of beneficial 

use alternatives, identifying possible 

resources, and eliminating regulatory 

barriers. EPA expects that the Steering 

Committee and LIS RDT will, generally 

and on a project specific basis, facilitate 

the process of matching projects, 

beneficial use alternatives, and the 

resources necessary to implement them, 

thus mitigating the risk that a project 

cannot proceed. 

EPA’s definition of ‘‘practicable’’ 

requires that the alternative be 

‘‘available at reasonable incremental 

cost.’’ Said differently, by definition, a 

‘‘practicable alternative’’ will not 

impose unreasonable incremental cost. 

This would apply as well to the 

consideration of multiple potential 

management alternatives for dredged 

material from a single project, a scenario 

that the USACE in concerned might add 

significant costs. Again, incremental 

costs could not be unreasonable without 

also rendering the alternative 

impracticable. As noted in the preamble 

to the Proposed Rule, the language 

retained from the 2005 Rule does not 

attempt to specify in advance how the 

‘‘reasonable incremental cost’’ standard 

will be applied in any particular case. 

The regulation contemplates a balancing 

test and EPA believes that the 

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case basis. The language of the 2005 

Rule also does not attempt to specify 

who will need to pay for any reasonable 

incremental costs. Rather, the share of 

such costs (if any) to be borne by private 

parties, state government, local 

government, or the federal government 

also will need to be worked out in 

response to actual situations. 

EPA cannot eliminate in advance the 

possibility that no entity will have the 

means to pay the non-federal share of an 

alternative EPA has determined is 

practicable, whether in Long Island 

Sound or anywhere else in the country. 

However, in Long Island Sound, with 

the states and federal agencies working 

in partnership to implement beneficial 

use alternatives, EPA believes that the 

likelihood of a project not going forward 

because of a lack of funding for the 

reasonable incremental cost of a 

practicable alternative has been made as 

remote as possible. 

Comment #9. Many commenters 

noted that dredging is necessary to 

ensure recreational and commercial 

access to Long Island Sound. Marinas, 

boatyards, and boat clubs are the main 

access for the public to get out onto the 

Sound and they need to dredge 

periodically to maintain sufficient depth 

for safe navigation. Dredging is 

necessary to ensure the existence of 

commercial and recreational industries 

that generate billions of dollars and 

support thousands of jobs around the 

Sound. An important element of state 

coastal zone management programs—to 

retain, promote, and enhance access to 

waterways—will be harmed if the 

public and marine industry cannot 

access the Sound. 

Response #9. EPA agrees that 

dredging to provide for safe navigation 

to and from Long Island Sound is a 

necessary activity and acknowledges 

that the marine trade industry is an 

important contributor to the economy of 

both states in the Long Island Sound 

region. The policy goals of the Coastal 

Zone Management Act are to ‘‘preserve, 

protect, develop, and where possible, to 

restore or enhance, the resources of the 

Nation’s coastal zone.’’ This includes 

achieving wise use of the land and 

water resources of the coastal zone, 

giving full consideration to ecological, 

cultural, historic, and esthetic values as 

well as the needs for compatible 

economic development. EPA agrees that 

providing public access to the coasts for 

recreation purposes is an important goal 

of coastal zone management programs. 

EPA notes that the protection of natural 

resources, including wetlands, 

floodplains, estuaries, beaches, dunes, 

barrier islands, coral reefs, and fish and 

wildlife and their habitat, within the 

coastal zone is also an important goal. 

EPA, USACE, NOAA, and the state 

coastal zone management programs seek 

to harmonize these goals. 

Comment #10. Numerous commenters 

believe there needs to be an open-water 

placement option for dredged material. 

They express concern that without an 

open-water option, dredging will 

become prohibitively expensive. 

Response #10. EPA agrees that there 

is a need for open-water disposal sites 

in Central and Western Long Island 

Sound as was demonstrated when EPA 

designated the sites in 2005 and has 

been reaffirmed by the DMMP. EPA is 

retaining these sites as open-water 

placement options for the long term. 

However, the Final Rule also reaffirms 

that the overarching goal is to reduce or 

eliminate wherever practicable the 

open-water disposal of dredged 

material. The amendments make clear 

that unsuitable material shall not be 

disposed of at the sites, that sandy 

material should be used beneficially in 

almost all cases, and that alternatives to 

open-water placement of silty material 

should be thoroughly considered, and 

used whenever practicable, before openwater placement is allowed. 

Comment #11. Commenters had 

mixed views concerning the Long Island 

Sound DMMP. Some feel the DMMP 

provides useful information on what 

should be done with dredged material 

and how these projects should be 

managed. Others feel the DMMP is 

insufficient and will perpetuate the 

status quo and EPA cannot rely solely 

on the DMMP in amending the rule. 

Rather they assert that EPA must amend 

the rule to establish additional 

procedures and standards that will 

result in clear, staged reductions in 

open-water disposal of dredged material 

over time. 

Response #11. EPA believes the 

DMMP provides very useful information 

for managing toward the goal of 

reducing or eliminating the open-water 

disposal of dredged materials in the 

Sound. The DMMP provides 

recommended standards and procedures 

as well as identifying potential 

alternatives to open water disposal for 

each of the 52 federal navigation 

projects in Long Island Sound. The 

Final Rule builds on the procedures 

recommended in the DMMP and 

provides a strong management 

framework for achieving the goal of 

reducing or eliminating open-water 

disposal with the addition of the 

Steering Committee and its 

responsibilities, as described in 

Response #2. 

Comment #12. Some commenters 

believe disposal of any dredged material 

in the Sound should not be allowed to 

continue. They believe open water 

disposal does not make environmental 

sense, will have a negative impact on 

the ecosystem of Long Island Sound, 

and that toxic or contaminated sediment 

should not be dumped in the Sound. 

Response #12. As noted above, EPA 

thinks, many commenters acknowledge, 

and the DMMP helps to document, that 

dredging is and will continue to be 

needed to allow for safe navigation in 

the harbors, marinas and channels of 

Long Island Sound. This is important 

for public safety, marine commerce and 

recreation, and national security. In 

order to handle this dredged material, 

EPA believes it is neither possible nor 

practical to simply end open water 

disposal at this time. The goal set in 

2005 and retained in the Final Rule is 

to reduce or eliminate open-water 

disposal. The Final Rule establishes 

standards and procedures toward that 

end. 

EPA strongly disagrees with the 

suggestion that toxic sediments might be 

disposed of at the sites. EPA’s MPRSA 

regulations require rigorous physical, 

chemical, and biological testing and 

analysis of sediments is conducted prior 

to issuance of any permit to place 

material at the sites. See 40 CFR part 

227. As the Proposed and Final Rule 

make clear, sediments that do not pass 

these tests are considered ‘‘unsuitable’’ 

and shall not be disposed of at the sites. 

The USACE’s Disposal Area 

Monitoring System (DAMOS) has 

gathered information on dredged 

material placement sites in the Sound 

since the late 1970s. The program has 

generated over 200 detailed reports 

addressing questions and concerns 

related to placement of dredged material 

in the Sound. Sequential surveys of 

biological conditions at sites following 

the placement of dredged material 

consistently show a rapid recovery of 

the benthic community to that of the 

surrounding habitat outside the disposal 

sites and within the sites. The USACE 

and EPA monitor benthic health and 

recovery and the results support the 

conclusion that there is no evidence of 

long-term effects on the marine 

environment. 

With the nearly 40-year record of 

surveys, there have been multiple 

opportunities to evaluate the effects of 

large storms (both hurricanes and 

nor’easters) on the dredged material 

mounds on the seafloor. These 

investigations have demonstrated longterm stability of the mounds even at the 

most exposed sites. 

Comment #13. Other commenters 

believe dredged material can be placed 

in open-water sites without significant 


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harm and that the Proposed Rule 

provides adequate safeguards for openwater placement. They note that 

permitting for dredging and relocation 

of dredged material is rigorous, 

thorough, and costly, with multiple 

agency reviews. They point to years of 

studies and documentation 

demonstrating the lack of harm and 

stability of the dredged materials placed 

at these sites. They believe scientific 

evidence does not support the claim 

that toxic material is dumped into the 

Sound. They also note that without 

dredging, the sediments remain in the 

relative shallows of the bays and 

harbors, where more fish live and where 

more people swim, fish, and enjoy the 

water. Storms in the relative shallows of 

the bays and harbors create more 

siltation, turbidity, and disturbance than 

dredging. 

Response #13. EPA agrees that the 

permitting process for dredging projects 

is rigorous and thorough and involves 

coordination with multiple agencies. As 

discussed in Response #12, EPA agrees 

that there is a substantial body of 

scientific evidence that indicates that 

suitable dredged material can be 

disposed of at the sites with minimal 

harm to the marine environment. To the 

extent the commenters are addressing 

possible concerns about exposure to 

materials that might be dredged in the 

future, it is possible that they are 

dispersed across a greater surface area 

and at depths more readily resuspended by the natural forces of 

winds, waves, and tides compared to 

the more compact placement at the 

CLDS and WLDS at depths much less 

influenced by winds and waves. 

Comment #14. Some commenters said 

that EPA’s analysis should consider the 

nitrogen loading associated with openwater disposal and reconcile it with 

EPA’s nitrogen strategy for Long Island 

Sound. 

Response #14. As discussed in the 

DMMP, the annual placement of 

dredged material at the open-water sites 

is estimated to add less than one-tenth 

of one percent of the overall annual 

nitrogen loading to Long Island Sound. 

The dredging process scrapes a 

relatively thin layer of surficial 

sediment from a wide area, and aquatic 

placement consolidates that volume of 

sediment into a much smaller footprint. 

Hence, much of the nitrogen that was 

available for potential future release 

from surficial sediment (due to 

biological reworking or physical 

disturbance in the shallower 

environment) is sequestered out of 

contact with the water column in 

deposits that have been shown to be 

stable features on the seafloor. 

Comment #15. Some commenters 

believe dredged material should be used 

beneficially. Others note that moving 

away from open-water disposal is 

feasible in the long run, but the costs 

associated with these alternatives are far 

greater than funding available today. 

Response #15. EPA agrees that 

suitable dredged material should be 

used beneficially whenever and 

wherever practicable. The standards and 

procedures contained in the Final Rule 

and the menu of alternatives contained 

in the DMMP provide the structure and 

means to follow a path that should 

result in reducing open-water disposal 

while increasing beneficial use of 

dredged materials. EPA and the USACE 

believe that sandy materials can be 

beneficially used in many cases 

currently and with even greater 

frequency in the future. The next 

challenge is to find economic and 

beneficial environmental uses for 

suitable silty material. As coastal 

resiliency becomes an increasingly 

important priority, EPA is hopeful and 

expects that opportunities for beneficial 

uses of silty material will emerge and 

expand. 

Comment #16. The USACE noted that 

the Proposed Rule maintains the current 

language of 40 CFR 228.15(b)(4)(vi) 

which provides, ‘‘All references to 

‘permittees’ shall be deemed to include 

the U.S. Army Corps of Engineers 

(USACE) when it is authorizing its own 

dredged material disposal from a 

USACE dredging project.’’ The USACE 

explains that it does not permit its own 

projects and is therefore not a permittee. 

USACE requested the language be 

stricken. 

Response #16. As noted by USACE, 

the language in question was included 

in the restrictions in the 2005 Rule. The 

intention of the 2005 Rule was to apply 

the restrictions to all persons who may 

seek to dispose of dredged material at 

the sites under MPRSA. As discussed in 

the preamble to the 2005 Rule, the 

restrictions were intended to apply both 

to all MPRSA permittees (i.e., private 

parties and governmental agencies other 

than the USACE), and to the USACE 

itself which disposes of dredged 

material pursuant to the 

‘‘authorizations’’ that it grants to itself 

rather than permits. See 70 FR 32511 

(June 3, 2005). See also 33 U.S.C. 

1413(e); 40 CFR 220.2(h); 33 CFR 

336.1(a). The USACE was ‘‘deemed’’ to 

be a permittee in the 2005 Rule only to 

make it clear that it was subject to the 

site Restrictions where the term 

‘‘permittee’’ was used, but not to mean 

that the Corps was actually a permittee. 

Thus, the USACE was not considered to 

be a permittee but would be treated like 

one in this context. 

EPA understands the USACE’s 

comment as objecting to being 

considered a ‘‘permittee,’’ rather than an 

indication that the USACE is not subject 

to the restrictions. Since the other 

proposed revisions to the 2005 Rule 

eliminated the use of the word 

‘‘permittee,’’ there is no longer a need to 

specifically qualify what ‘‘permittee’’ 

refers to. Consistent with the USACE’s 

comment and EPA’s intention that the 

restrictions apply to all persons who 

may dispose of dredged material at the 

sites, but not that the USACE would be 

an actual permittee, EPA has revised the 

sentence in question in 40 CFR 

228.15(b)(4)(vi) to read (in pertinent 

part): ‘‘The restrictions apply to the U.S. 

Army Corps of Engineers (USACE) 

when it is authorizing its own dredged 

material disposal from a USACE 

dredging project . . . .’’ 

Comment #17. The U.S. Department 

of the Interior’s Bureau of Indian Affairs 

(BIA) requested that EPA consult with 

the Shinnecock Indian Nation 

concerning the amendments to the 2005 

Rule. 

Response #17. EPA coordinated with 

Tribal nations in Connecticut, Rhode 

Island, and New York, including the 

Shinnecock Indian Nation, throughout 

the site designation process. None of the 

tribes that were contacted expressed 

interest in EPA consulting with them. 

Upon receipt of the letter from BIA, EPA 

contacted the Shinnecock Indian Nation 

to gauge its interest in participating in 

the formal consultation process, but the 

tribe did not express an interest in 

participating. EPA will continue to 

coordinate with the Shinnecock Indian 

Nation, as appropriate, in the future. 

Comment #18. One commenter 

asserted that the eastern boundary of 

Long Island Sound should run from 

Little Gull Island, through Bartlett’s Reef 

to the Connecticut mainland. They 

assert that Block Island Sound, 

Gardiners Bay, the Race, Fishers Island 

Sound and the New London Disposal 

Site are not part of Long Island Sound. 

Response #18. In 2009, after due 

consideration of the issue, EPA advised 

the USACE that the boundary suggested 

by the commenter should not be used as 

the eastern boundary of the Sound 

under MPRSA Section 106(f). EPA’s 

analysis concluded that the boundary, 

instead, runs northeasterly from Orient 

Point, through Plum Island, Great Gull 

and Little Gull Islands, Fishers Island, 

and Napatree Point, RI, which is 

sometimes referred to as the ‘‘Old Base 

Line.’’ This boundary has been used 

consistently by EPA and USACE in all 

discussions and documents concerning 


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dredged material disposal sites in Long 

Island Sound. 

Comment #19: One commenter 

claimed that EPA has incorrectly 

concluded that the proposed action will 

not have a significant economic impact 

on a substantial number of small entities 

under the Regulatory Flexibility Act. 

Response #19: EPA disagrees with the 

commenter regarding the conclusion 

that the proposed action will not have 

a significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act. As 

EPA noted in the Proposed Rule, the 

restrictions apply only to projects 

subject to MPRSA (i.e., all federal 

projects and non-federal projects greater 

than 25,000 cubic yards). Small entities 

are most likely to be involved with 

projects below the 25,000 cubic yard 

threshold. Therefore, they are not 

subject to these restrictions and are 

subject to Clean Water Act requirements 

instead. If anything, EPA’s action to 

amend the regulations and maintain the 

CLDS and WLDS designations will 

assist small entities by maintaining the 

CLDS and WLDS as clear options for 

open-water disposal of dredged 

material, when appropriate. 

III. Changes From the Proposed Rule 

The Final Rule incorporates the 

standards and procedures contained in 

the Proposed Rule and, pursuant to the 

comments discussed above, revises 

them as follows. 

A sentence, restating the common 

goal to reduce or eliminate open water 

disposal of dredged material in Long 

Island Sound, has been added to the 

introductory paragraph (b)(4)(vi) in the 

Final Rule. Another sentence in the 

same paragraph has been revised to 

clarify that although the USACE is not 

a permittee, the restrictions also apply 

to the USACE when it is authorizing its 

own dredged material disposal from a 

USACE dredging project. 

The Final Rule establishes a Long 

Island Sound Dredging Steering 

Committee consisting of high level 

representatives from the states, EPA, the 

USACE, and, as appropriate, other 

federal and state agencies. The Steering 

Committee will provide policy-level 

direction to the LIS RDT and facilitate 

high-level collaboration among the 

agencies critical to accelerating the 

development and use of alternatives to 

open-water disposal of dredged 

material. The charge to the Steering 

Committee includes: developing a 

baseline for the volume and percentage 

of dredged material being placed in 

open water and the amount and 

percentage being beneficially used; 

establishing a reasonable and 

practicable series of stepped objectives 

(with timeframes) for reducing the 

amount of open water placement and 

increasing the amount of beneficially 

used material, while also recognizing 

that there will be fluctuations in annual 

volumes of dredged material generated 

due to the very nature of the dredging 

program; and developing accurate 

methods for tracking reductions with 

due consideration for annual 

fluctuations. The Final Rule specifies 

that the stepped objectives should 

incorporate an adaptive management 

approach toward continuous 

improvement. When tracking progress, 

the Steering Committee will recognize 

that exceptional circumstances may 

result in delays meeting an objective. 

Exceptional circumstances should be 

infrequent, irregular, and unpredictable. 

In carrying out its tasks, the Steering 

Committee shall guide and utilize the 

LIS RDT, as appropriate. 

Participation of Connecticut, New 

York, and Rhode Island on the Steering 

Committee and LIS RDT is voluntary; it 

is not legally mandated by the new 

regulations. That said, EPA expects, as 

discussed earlier, that Connecticut and 

New York (and possibly Rhode Island) 

will participate and that each of the 

member agencies will commit the 

necessary resources to support the work 

of the Steering Committee and the LIS 

RDT, including collecting the data 

necessary to support the establishment 

of the baseline and tracking and 

reporting the future disposition of 

dredged materials. EPA expects the 

Steering Committee, with the support of 

the LIS RDT, to guide a concerted effort 

to spur greater use of beneficial use 

alternatives, including piloting 

alternatives, identifying possible 

resources, and eliminating regulatory 

barriers. The Final Rule contains 

provisions establishing the Steering 

Committee and setting out the 

responsibilities described above. 

[(b)(4)(vi)(E)] 

The Final Rule clarifies certain of the 

roles and responsibilities of the LIS 

RDT. Again, participation by the states 

on the LIS RDT is voluntary, but EPA 

expects the states to participate and to 

provide the resources necessary for 

meaningful participation. The Final 

Rule establishes the relationship 

between the Steering Committee, which 

provides policy-level direction for the 

LIS RDT, and the LIS RDT, which has 

the responsibility for execution. It more 

explicitly calls for project proponents to 

consult with the LIS RDT at the earliest 

possible stage to expand consideration 

of beneficial use alternatives. The Final 

Rule sets a clear expectation that the LIS 

RDT will report to USACE on its review 

of final projects within 30 days of 

receipt of project information. It also 

provides additional detail on the 

organization and procedures for the LIS 

RDT. EPA views the charter under 

which the LIS RDT has operated during 

the development of the DMMP as a 

useful starting point for a new charter 

that encompasses the revised roles, 

responsibilities and makeup of the LIS 

RDT. The current LIS RDT charter 

should serve as the interim guide for the 

LIS RDT’s process until a new charter is 

developed. [(b)(4)(vi)(F)] 

Lastly, the Final Rule provides the 

potential for reconsidering the rule, 

upon petition, if in ten years the amount 

of dredged material disposed of at the 

sites has not been maintained or 

reduced. [(b)(4)(vi)(H)] 

IV. Compliance With Statutory and 

Regulatory Requirements 

The preamble to the 2005 Rule 

described how the dredged material 

disposal site designation process that 

culminated in the designation of the 

CLDS and WLDS was consistent with 

the requirements of the MPRSA, the 

CWA, the National Environmental 

Policy Act (NEPA), the Coastal Zone 

Management Act (CZMA), the 

Endangered Species Act (ESA), and the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSFCMA). See 70 FR 32502–32508 

(June 3, 2005). While the CWA does not 

apply specifically to an EPA designation 

of a long-term dredged material disposal 

site under the MPRSA, future federal 

and non-federal projects involving 

dredged material disposal in Long 

Island Sound will require both a section 

404 permit as well as a State Water 

Quality Certification pursuant to section 

401 of the CWA. 

In the preamble to the Proposed Rule, 

EPA determined that the proposed 

amendments to the 2005 Rule, and the 

process by which they were developed, 

also are consistent with the laws noted 

above. 81 FR 7060–7061. One of the 

important factors in this determination 

was that the amended Rule would 

provide the same or greater protection of 

water quality and the marine 

environment as the 2005 Rule. 81 FR 

7060. EPA’s conclusions regarding 

compliance with those laws has not 

changed following consideration of 

public comments. 

As the preamble to the Proposed Rule 

explained, the proposed amendments to 

the 2005 Rule do not make decisions 

about the suitability of any particular 

dredged material for open-water 

disposal or about any other type of 

management of the material. Such 

decisions will be made for specific 


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1NY DOS’s conditional concurrence stated its 

conclusion that EPA’s rule would not comply with 

the enforceable provisions of New York’s coastal 

zone management program unless EPA adopted 

provisions consistent with the conditions proposed 

by NY DOS. While EPA has, indeed, adopted such 

provisions that assure NY DOS’s concurrence, EPA 

does not agree with NY DOS’s assessment of 

proposed regulatory amendments. EPA, instead, 

determined that the terms of its Proposed and Final 

Rules fully comply or, in the alternative, comply to 

the maximum extent practicable with the 

enforceable provisions of New York’s coastal zone 

management program. EPA’s assessment is 

documented in the record, including, but not 

limited to, its CZMA consistency determination. 

dredging projects on the basis of projectspecific permitting evaluations. The 

amendments to the regulations, instead, 

provide specific standards and 

procedures designed to further the goal 

of reducing or eliminating open-water 

disposal of dredged material at the 

CLDS and WLDS. These amendments 

are consistent with provisions of the 

2005 Rule that called for possible 

revisions to the Rule based on the 

standards and procedures recommended 

in the Long Island Sound Dredged 

Material Management Plan (DMMP). 

The preamble to the Proposed Rule also 

provided additional statute-specific 

discussion. 81 FR 7060–7061. 

At the time of the Proposed Rule, 

consultation and coordination with state 

and federal agencies regarding the 

CZMA, ESA, MSFCMA, respectively, 

were underway. Those consultations 

have been completed, as discussed 

below. 

1. Marine Protection, Research, and 

Sanctuaries Act (MPRSA) 

In the preamble to the 2005 Rule, EPA 

explained in detail how its designation 

of the CLDS and WLDS complied with 

the MPRSA. 70 FR 32502–32508. In the 

preamble for the Proposed Rule, EPA 

explained how the proposed 

amendments to the 2005 Rule also 

complied with the MPRSA. As part of 

such compliance, EPA has finalized 

updates to the Site Management and 

Monitoring Plan (SMMP) for both the 

CLDS and the WLDS. 

2. Coastal Zone Management Act 

(CZMA) 

Under the CZMA, EPA, like any other 

federal agency, is required to provide 

relevant states with a determination that 

any activity it proposes that could affect 

the uses or natural resources of a state’s 

coastal zone is consistent to the 

maximum extent practicable with the 

enforceable policies of the state’s coastal 

zone management program. EPA 

determined that the amendments to the 

2005 Rule are consistent with the 

enforceable policies of the coastal zone 

management programs of both 

Connecticut and New York and 

provided each state with a written 

determination to that effect. EPA 

consulted with each state’s coastal zone 

management program prior to this final 

rulemaking. In a letter dated April 8, 

2016, the Connecticut Department of 

Energy and Environmental Protection 

concurred with EPA’s determination 

with regard to Connecticut’s coastal 

zone management program. The New 

York State Department of State (NY 

DOS) provided its concurrence on April 

25, 2016. NY DOS’s concurrence was 

conditioned on the Final Rule including 

provisions that address NY DOS’s 

comments on the Proposed Rule. EPA 

believes the changes to the Proposed 

Rule described above are consistent 

with NY DOS’s condition(s) and, thus, 

considers NY DOS to have concurred 

with the Final Rule.1

3. Endangered Species Act 

Since the 2005 Rule, NOAA’s 

National Marine Fisheries Service 

(NMFS) and the U.S. Fish and Wildlife 

Service listed the Atlantic sturgeon as 

an endangered species under the ESA. 

Parts of Long Island Sound are among 

the distinct population segments listed 

as endangered by NMFS in 2012. EPA’s 

analysis considered the Atlantic 

sturgeon as well as sea turtles and listed 

marine mammals. Consistent with the 

ESA, EPA consulted with NMFS and 

USFWS on this rulemaking action and 

the updating of the SMMPs for the two 

disposal sites. NMFS has concurred 

with EPA’s determination that any 

adverse effects on listed species from 

this action would be insignificant or 

discountable, and that this action is not 

likely to adversely affect any listed 

species or critical habitat of such 

species under NMFS jurisdiction. EPA 

sent a ‘‘no effects’’ determination for 

species under USFWS jurisdiction to 

the USFWS and did not receive any 

response, so EPA assumed concurrence. 

No additional consultation or 

coordination is required. 

4. Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSFCMA) 

EPA coordinated with NMFS on this 

rulemaking action and the updating of 

SMMPs for the two disposal sites, 

consistent with the Essential Fish 

Habitat provisions of the MSFCMA. 

NMFS has concurred with our 

determination that it is unlikely that 

this action will result in adverse effects 

to any essential fish habitat. Therefore, 

no additional coordination is required. 

V. Final Action 

EPA is publishing this Final Rule to 

amend the restrictions on the use of the 

CLDS and WLDS. This action is 

consistent with, and retains a number 

of, the restrictions contained in the 

original designation of these sites in 

2005. Certain of those restrictions 

required completion of a DMMP that 

would identify procedures and 

standards for reducing or eliminating 

the disposal of dredged material in Long 

Island Sound. Since the DMMP has 

been completed EPA’s Final Rule 

removes the restrictions related to its 

development. The 2005 restrictions 

further require EPA, within 120 days of 

completion of the DMMP, to issue final 

amendments to the restrictions to 

incorporate procedures and standards 

consistent with those recommended in 

the DMMP for reducing or eliminating 

the disposal of dredged material in Long 

Island Sound. While the Final Rule was 

not issued within 120 days of 

completion of the DMMP (which would 

have been May 10), and use of the CLDS 

and WLDS was temporarily suspended, 

issuance of today’s Final Rule satisfies 

that requirement such that the 

suspension of the sites has been lifted 

and they are now available for use. See 

40 CFR 228.15(b)(4)(vi)(C) (footnote 1) 

and (G). 

The Final Rule incorporates the 

standards and procedures recommended 

in the DMMP and augments them by 

establishing a Steering Committee to 

provide policy guidance and direction 

to the LIS RDT and to: Develop a 

baseline for the volume and percentage 

of dredged material being placed in 

open water and the amount and 

percentage being beneficially used; 

establish a reasonable and practicable 

series of stepped objectives (with 

timeframes) for reducing the amount of 

open water placement and increasing 

the amount of beneficially used 

material, while also recognizing that 

there will be fluctuations in annual 

volumes of dredged material generated 

due to the very nature of the dredging 

program; and develop accurate methods 

for tracking reductions with due 

consideration for annual fluctuations. 

The stepped objectives will incorporate 

an adaptive management approach 

toward continuous improvement. The 

Rule provides that when tracking 

progress, the Steering Committee will 

recognize that exceptional 

circumstances may result in delays 

meeting an objective. Exceptional 

circumstances should be infrequent, 

irregular, and unpredictable. The Final 

Rule also provides that in carrying out 

its tasks, the Steering Committee shall 


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guide and utilize the LIS RDT, as 

appropriate. 

The Final Rule also expressly allows 

any person to submit a petition seeking 

changes to the rule if, in ten years, the 

amount of dredged material disposed of 

at the sites has not been maintained or 

reduced. 

VI. Statutory and Executive Order 

Reviews 

1. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action, as defined in the 

Executive Order, and was therefore not 

submitted to the Office of Management 

and Budget (OMB) for review. 

2. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA because it would not require 

persons to obtain, maintain, retain, 

report or publicly disclose information 

to or for a federal agency. 

3. Regulatory Flexibility Act (RFA) 

This action will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (RFA). The 

amended restrictions in this rule are 

only relevant for dredged material 

disposal projects subject to the MPRSA. 

Non-federal projects involving 25,000 

cubic yards or less of material are not 

subject to the MPRSA and, instead, are 

regulated under CWA section 404. This 

action will, therefore, have no effect on 

such projects. ‘‘Small entities’’ under 

the RFA are most likely to be involved 

with smaller projects not covered by the 

MPRSA. Therefore, EPA does not 

believe a substantial number of small 

entities will be affected by today’s rule. 

Furthermore, the amendments to the 

restrictions also will not have 

significant economic impacts on a 

substantial number of small entities 

because they primarily will create 

requirements to be followed by 

regulatory agencies rather than small 

entities, and will create requirements 

(i.e., the standards and procedures) 

intended to help ensure satisfaction of 

the existing regulatory requirement that 

practicable alternatives to the ocean 

dumping of dredged material be utilized 

(see 40 CFR 227.16). 

4. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

5. Executive Order 13132: Federalism 

This action does not have federalism 

implications within the meaning of the 

Executive Order. It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

6. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications as specified in Executive 

Order 13175 because the restrictions 

will not have substantial direct effects 

on Indian tribes, on the relationship 

between the federal government and 

Indian Tribes, or the distribution of 

power and responsibilities between the 

federal government and Indian Tribes. 

EPA consulted with the affected Indian 

tribes in making this determination. 

7. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to Executive 

Order 13045 because it is not 

economically significant as defined in 

Executive Order 12866, and because 

EPA does not believe the environmental 

health or safety risks addressed by this 

action present a disproportionate risk to 

children. 

8. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

9. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 

10. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

EPA believes the human health or 

environmental risk addressed by this 

action will not have a 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. 

11. Executive Order 13158: Marine 

Protected Areas 

Executive Order 13158 (65 FR 34909, 

May 31, 2000) requires EPA to 

‘‘expeditiously propose new sciencebased regulations, as necessary, to 

ensure appropriate levels of protection 

for the marine environment.’’ EPA may 

take action to enhance or expand 

protection of existing marine protected 

areas and to establish or recommend, as 

appropriate, new marine protected 

areas. The purpose of the Executive 

Order is to protect the significant 

natural and cultural resources within 

the marine environment, which means, 

’’those areas of coastal and ocean 

waters, the Great Lakes and their 

connecting waters, and submerged lands 

thereunder, over which the United 

States exercises jurisdiction, consistent 

with international law.’’ 

EPA expects that this rule will afford 

additional protection to the waters of 

Long Island Sound and organisms that 

inhabit them. Building on the existing 

protections of the MPRSA, the ocean 

dumping regulations, the 2005 Rule, the 

CWA, and other relevant statutes and 

regulations, the final regulatory 

amendments are designed to promote 

and support reductions in open-water 

disposal of dredged material in Long 

Island Sound. 

12. Executive Order 13547: Stewardship 

of the Ocean, Our Coasts, and the Great 

Lakes 

Section 6(a)(i) of Executive Order 

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

requires, among other things, that EPA 

and certain other agencies ‘‘. . . to the 

fullest extent consistent with applicable 

law . . . take such action as necessary 

to implement the policy set forth in 

section 2 of this order and the 

stewardship principles and national 

priority objectives as set forth in the 

Final Recommendations and subsequent 

guidance from the Council.’’ The 

policies in section 2 of Executive Order 

13547 include, among other things, the 

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

United States to: (i) protect, maintain, 

and restore the health and biological 

diversity of ocean, coastal, and Great 

Lakes ecosystems and resources; (ii) 

improve the resiliency of ocean, coastal, 

and Great Lakes ecosystems, 

communities, and economies. . . .’’ As 

with Executive Order 13158 (Marine 

Protected Areas), the overall purpose of 

the Executive Order is to promote 

protection of ocean and coastal 

environmental resources. 

EPA expects that this Final Rule will 

afford additional protection to the 

waters of Long Island Sound and 


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Federal Register / Vol. 81, No. 130 / Thursday, July 7, 2016 / Rules and Regulations 44229 

organisms that inhabit them. Building 

on the existing protections of the 

MPRSA, the ocean dumping regulations, 

the 2005 Rule, the CWA and other 

relevant statutes and regulations, the 

regulatory amendments are designed to 

promote the reduction or elimination of 

open-water disposal of dredged material 

in Long Island Sound. 

13. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A ‘‘major rule’’ 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a major rule as 

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

will be effective August 8, 2016. 

List of Subjects in 40 CFR Part 228 

Environmental protection, Water 

pollution control. 

Dated: June 24, 2016. 

H. Curtis Spalding, 

Regional Administrator, EPA Region 1-New 

England. 

For the reasons stated in the 

preamble, title 40, Chapter I, of the Code 

of Federal Regulations is amended as set 

forth below. 

PART 228—CRITERIA FOR THE 

MANAGEMENT OF DISPOSAL SITES 

FOR OCEAN DUMPING 

■ 1. The authority citation for part 228 

continues to read as follows: 

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

■ 2. Section 228.15 is amended by: 

■ a. Revising paragraphs (b)(4) 

introductory text and (b)(4)(i) and (v) 

and (b)(4)(vi) introductory text; 

■ b. Removing paragraphs (b)(4)(vi)(C) 

through (F); 

■ c. Adding new paragraphs (b)(4)(vi)(D) 

through (F); 

■ d. Revising paragraph (b)(4)(vi)(G); 

■ e. Removing paragraph (b)(4)(vi)(H); 

■ f. Redesignating paragraph (b)(4)(vi)(I) 

as (b)(4)(vi)(C) and revising it; 

■ g. Redesignating paragraph (b)(4)(vi)(J) 

through (L) as (b)(4)(vi)(H) through (J), 

respectively; 

■ h. Removing paragraph (b)(4)(vi)(M); 

■ i. Redesignating paragraph 

(b)(4)(vi)(N) as (b)(4)(vi)(K); and 

■ j. Revising paragraphs (b)(5) 

introductory text and (b)(5)(v). 

The revisions and additions read as 

follows: 

§ 228.15 Dumping sites designated on a 

final basis. 

* * * * * 

(b) * * * 

(4) Central Long Island Sound 

Dredged Material Disposal Site (CLDS). 

(i) Location: Corner Coordinates (NAD 

1983) 41°9.5′ N., 72°54.4′ W.; 41°9.5′ N., 

72°51.5′ W.; 41°08.4′ N., 72°54.4′ W.; 

41°08.4′ N., 72°51.5′ W. 

* * * * * 

(v) Period of use: Continuing use. 

(vi) Restrictions: The designation in 

this paragraph (b)(4) sets forth 

conditions for the use of Central Long 

Island Sound and Western Long Island 

Sound Dredged Material Disposal Sites 

(CLDS and WLDS, respectively). These 

conditions apply to all disposal subject 

to the MPRSA, namely, non-federal 

projects greater than 25,000 cubic yards 

and all federal projects. With regard to 

federal projects, the restrictions apply to 

the U.S. Army Corps of Engineers 

(USACE) when it is authorizing its own 

dredged material disposal from a 

USACE dredging project, as well as to 

federal dredged material disposal 

projects that require authorization from 

a permit issued by the USACE. The goal 

of these conditions is to reduce or 

eliminate open-water disposal of 

dredged material in Long Island Sound. 

The conditions for this designation are 

as follows: 

* * * * * 

(C) Disposal of dredged material at the 

designated sites pursuant to the 

designation in this paragraph (b)(4) shall 

be allowed if, after full consideration of 

recommendations provided by the Long 

Island Sound Regional Dredging Team 

(LIS RDT) if the members of the LIS 

RDT reach consensus, or provided by 

the LIS RDT’s member agencies if no 

consensus is achieved, the USACE finds 

(and EPA does not object to such 

finding), based on a fully documented 

analysis, that for a given dredging 

project: 

(1) There are no practicable 

alternatives (as defined in 40 CFR 

227.16(b)) to open-water disposal in 

Long Island Sound. Any available 

practicable alternative to open-water 

disposal will be fully utilized for the 

maximum volume of dredged material 

practicable; 

(2) Determinations relating to 

paragraph (b)(4)(vi)(C)(1) of this section 

will recognize that, consistent with 40 

CFR 227.16(b), a practicable alternative 

to open-water disposal may add 

reasonable incremental costs. Disposal 

of dredged material at the designated 

sites pursuant to this paragraph (b)(4) 

shall not be allowed to the extent that 

a practicable alternative is available. 

(3) The following standards for 

different dredged material types have 

been appropriately considered: 

(i) Unsuitable material. Disposal shall 

be limited to dredged sediments that 

comply with the Ocean Dumping 

Regulations. 

(ii) Suitable sandy material. Suitable 

coarse-grained material, which generally 

may include up to 20 percent fines 

when used for direct beach placement, 

or up to 40 percent fines when used for 

nearshore bar/berm nourishment, 

should be used for beach or nearshore 

bar/berm nourishment or other 

beneficial use whenever practicable. If 

no other alternative is determined to be 

practicable, suitable course-grained 

material may be placed at the 

designated sites. 

(iii) Suitable fine-grained material. 

This material has typically greater than 

20 to 40 percent fine content and, 

therefore, is not typically considered 

appropriate for beach or nearshore 

placement, but has been determined to 

be suitable for open-water placement by 

testing and analysis. Materials dredged 

from upper river channels in the 

Connecticut, Housatonic and Thames 

Rivers should, whenever possible, be 

disposed of at existing Confined Open 

Water sites, on-shore, or through inriver placement. Other beneficial uses 

such as marsh creation, should be 

examined and used whenever 

practicable. If no other alternative is 

determined to be practicable, suitable 

fine-grained material may be placed at 

the designated sites. 

(D) Source reduction. Efforts to 

control sediment entering waterways 

can reduce the need for maintenance 

dredging of harbor features and facilities 

by reducing shoaling rates. Federal, 

state and local agencies tasked with 

regulating discharges into the watershed 

should continue to exercise their 

authorities under various statues and 

regulations in a continuing effort to 

reduce the flow of sediments into state 

waterways and harbors. 

(E) There is established a Long Island 

Sound Dredging Steering Committee 

(Steering Committee), consisting of 

high-level representatives from the 

states of Connecticut and New York, 

EPA, USACE, and, as appropriate, other 

federal and state agencies. The Steering 

Committee will provide policy-level 

direction to the Long Island Sound 

Regional Dredging Team (LIS RDT) and 

facilitate high-level collaboration among 


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44230 Federal Register / Vol. 81, No. 130 / Thursday, July 7, 2016 / Rules and Regulations 

the agencies critical to promoting the 

development and use of beneficial 

alternatives for dredged material. State 

participation on the LIS RDT and 

Steering Committee is voluntary. The 

Steering Committee is charged with: 

Establishing a baseline for the volume 

and percentage of dredged material 

being beneficially used and placed at 

the open-water sites; establishing a 

reasonable and practicable series of 

stepped objectives, including 

timeframes, to increase the percentage 

of beneficially used material while 

reducing the percentage and amount 

being disposed in open water, and while 

recognizing that the amounts of dredged 

material generated by the dredging 

program will naturally fluctuate from 

year to year; and developing accurate 

methods to track the placement of 

dredged material, with due 

consideration for annual fluctuations. 

The stepped objectives should 

incorporate an adaptive management 

approach while aiming for continuous 

improvement. When tracking progress 

the Steering Committee should 

recognize that exceptional 

circumstances may result in delays in 

meeting an objective. Exceptional 

circumstances should be infrequent, 

irregular, and unpredictable. It is 

expected that each of the member 

agencies will commit the necessary 

resources to support the LIS RDT and 

Steering Committee’s work, including 

the collection of data necessary to 

support establishing the baseline and 

tracking and reporting on the future 

disposition of dredged material. The 

Steering Committee may utilize the LIS 

RDT, as appropriate, to carry out the 

tasks assigned to it. The Steering 

Committee, with the support of the LIS 

RDT, will guide a concerted effort to 

encourage greater use of beneficial use 

alternatives, including piloting 

alternatives, identifying possible 

resources, and eliminating regulatory 

barriers, as appropriate. 

(F) The goal of the Long Island Sound 

Regional Dredging Team (LIS RDT), 

working in cooperation with, and 

support of, the Steering Committee, is to 

reduce or eliminate wherever 

practicable the open-water disposal of 

dredged material. The LIS RDT’s 

purpose, geographic scope, 

membership, organization, and 

procedures are provided as follows: 

(1) Purpose. The LIS RDT will: 

(i) Review dredging projects and make 

recommendations as described in 

paragraph (vi)(C) above. The LIS RDT 

will report to the USACE on its review 

of dredging projects within 30 days of 

receipt of project information. Project 

proponents should consult with the LIS 

RDT early in the development of those 

projects to ensure that alternatives to 

open-water placement are fully 

considered. 

(ii) Assist the Steering Committee in: 

Establishing a baseline for the volume 

and percentage of dredged material 

being beneficially used and placed at 

the open water sites; establishing a 

reasonable and practicable series of 

stepped objectives, including 

timeframes, to increase the percentage 

of beneficially used material while 

reducing the percentage and amount 

being disposed in open water, 

recognizing that the volume of dredged 

material generated by the dredging 

program will naturally fluctuate from 

year to year; and developing accurate 

methods to track and report on the 

placement of dredged material, with due 

consideration for annual fluctuations. 

(iii) In coordination with the Steering 

Committee, serve as a forum for: 

Continuing exploration of new 

beneficial use alternatives to open-water 

disposal; matching the availability of 

beneficial use alternatives with dredging 

projects; exploring cost-sharing 

opportunities; and promoting 

opportunities for beneficial use of clean, 

parent marine sediments often 

generated in the development of CAD 

cells. 

(iv) Assist the USACE and EPA in 

continuing long-term efforts to monitor 

dredging impacts in Long Island Sound, 

including supporting the USACE’s 

DAMOS (Disposal Area Monitoring 

System) program and related efforts to 

study the long-term effects of openwater placement of dredged material. 

(2) Geographic scope. The geographic 

scope of the LIS RDT includes all of 

Long Island Sound and adjacent waters 

landward of the seaward boundary of 

the territorial sea (three-mile limit) or, 

in other words, from Throgs Neck to a 

line three miles seaward of the baseline 

across western Block Island Sound. 

(3) Membership. The LIS RDT shall be 

comprised of representatives from the 

states of Connecticut and New York, 

EPA, USACE, and, as appropriate, other 

federal and state agencies. As previously 

noted, state participation on the LIS 

RDT is voluntary. 

(4) Organization and procedures. 

Specific details regarding structure (e.g., 

chair, committees, working groups) and 

process shall be determined by the LIS 

RDT and may be revised as necessary to 

best accomplish the team’s purpose. 

(G) If the volume of open-water 

disposal of dredged material, as 

measured in 2026, has not declined or 

been maintained over the prior ten 

years, then any party may petition EPA 

to conduct a rulemaking to amend the 

restrictions on the use of the sites. 

* * * * * 

(5) Western Long Island Sound 

Dredged Material Disposal Site (WLDS). 

* * * * * 

(v) Period of use: Continuing use. 

* * * * * 

[FR Doc. 2016–16147 Filed 7–6–16; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

46 CFR Parts 1, 10, 11, 12, 13, 14, and 

15 

[Docket No. USCG–2016–0611] 

Policy for Credentialing Officers of 

Towing Vessels 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of availability. 

SUMMARY: The Coast Guard announces 

the availability of Navigation and Vessel 

Inspection Circular (NVIC) 03–16, 

Guidelines for Credentialing Officers of 

Towing Vessels. This NVIC provides 

guidance to mariners concerning 

regulations governing endorsements to 

Merchant Mariner Credentials for 

service on towing vessels. 

DATES: The policy announced in NVIC 

03–16 is effective on July 7, 2016. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about NVIC 03–16, 

call or email Luke B. Harden, Mariner 

Credentialing Program Policy Division 

(CG–CVC–4), U.S. Coast Guard; 

telephone 202–372–2357, or 

MMCPolicy@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

Viewing Documents 

Navigation and Vessel Inspection 

Circular (NVIC) 03–16, Guidelines for 

Credentialing Officers of Towing 

Vessels is available in the docket for this 

notice of availability and can also be 

viewed by going to http://www.uscg.mil/ 

nmc and clicking on ‘‘STCW,’’ then 

click on ‘‘2014 NVIC Updates.’’ To view 

NVIC 03–16 in the docket, go to http:// 

www.regulations.gov, type USCG–2016– 

0611 in the ‘‘Search’’ box and click 

‘‘Search.’’ 

Discussion 

On December 24, 2014, the Coast 

Guard published a final rule in the 

Federal Register (78 FR 77796) 

amending Title 46, Code of Federal 

Regulations, to implement the 

International Convention on Standards 


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