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[Federal Register Volume 81, Number 173 (Wednesday, September 7, 2016)]
[Rules and Regulations]
[Pages 61619-61625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-21454]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R04-OW-2016-0356; FRL-9951-96-Region 4]

Ocean Dumping: Modification of an Ocean Dredged Material Disposal 
Site Offshore of Charleston, South Carolina

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule and technical amendment.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a 
modification of the ocean dredged material disposal site (ODMDS) 
offshore of Charleston, South Carolina pursuant to the Marine 
Protection, Research and Sanctuaries Act, as amended (MPRSA). The 
primary purpose for the site modification is to serve the long-term 
need for a location to dispose of material dredged from the Charleston 
Harbor federal navigation channel, and to provide a location for the 
disposal of dredged material for persons who have received a permit for 
such disposal. The modified site will be subject to ongoing monitoring 
and management to ensure continued protection of the marine 
environment. In addition, the EPA now issues a technical amendment to 
correct a clerical error in the proposed rule.

DATES: The effective date of this final action shall be October 7, 
2016.

ADDRESSES: Docket: All documents in the Docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information may not be publicly available, e.g.,

[[Page 61620]]

confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, will be publicly available or in hard copy at the 
EPA Region 4 Office, 61 Forsyth Street SW., Atlanta, Georgia 30303. The 
file will be made available for public inspection in the Region 4 
library between the hours of 9:00 a.m. and 4:30 p.m. weekdays. Contact 
the person listed in the FOR FURTHER INFORMATION CONTACT paragraph 
below to make an appointment. If possible, please make your appointment 
at least two working days in advance of your visit. There will be a 15 
cent per page fee for making photocopies of documents.

FOR FURTHER INFORMATION CONTACT: Gary W. Collins, U.S. Environmental 
Protection Agency, Region 4, Water Protection Division, Marine 
Regulatory and Wetlands Enforcement Section, 61 Forsyth Street, 
Atlanta, Georgia 30303; phone number (404) 562-9395; email: 
collins.garyw@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Potentially Affected Persons

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

------------------------------------------------------------------------
                                             Examples of potentially
                Category                        regulated persons
------------------------------------------------------------------------
Federal government.....................  U.S. Army Corps of Engineers
                                          Civil Works projects, U.S.
                                          Navy 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.

II. Background

A. History of Disposal Sites Offshore of Charleston, South Carolina

    The existing Charleston ODMDS is located approximately 9 nautical 
miles (nmi) southeast of the mouth of Charleston Harbor on the 
continental shelf off the coast of South Carolina. It is currently 12.1 
nmi\2\ in size, with an authorized disposal zone that is 3.0 nmi\2\ in 
size. Since 1896, the area now designated as the Charleston ODMDS and 
vicinity has been used for disposal of dredged material (e.g., sand, 
silt, clay, rock) primarily from the Charleston Harbor Navigation 
Project. The Charleston ODMDS received interim site designation status 
in 1977 and final designation in 1987. The discovery of live bottom 
habitats within the original site resulted in several modifications to 
use of the site resulting in the creation of the restricted disposal 
zone.
    The USACE Charleston District and the EPA Region 4 have identified 
a need to either designate a new ODMDS or expand the existing 
Charleston ODMDS. The need for expanding current ocean disposal 
capacity is based on future capacity modeling, historical dredging 
volumes, estimates of dredging volumes for future proposed projects, 
and limited capacity of upland confined disposal facilities (CDFs) in 
the area.
    The modification of the ODMDS for dredged material does not mean 
that the USACE or the EPA has approved the use of the ODMDS for open 
water disposal of dredged material from any specific project. Before 
any person can dispose dredged material at the ODMDS, the EPA and the 
USACE must evaluate the project according to the ocean dumping 
regulatory criteria (40 CFR, part 227) and authorize the disposal. The 
EPA independently evaluates proposed dumping and has the right to 
restrict and/or disapprove of the actual disposal of dredged material 
if the EPA determines that environmental requirements under the MPRSA 
have not been met.

B. Location and Configuration of Modified Ocean Dredged Material 
Disposal Site

    This action modifies the ODMDS offshore of Charleston, South 
Carolina. The location of the modified ODMDS is bounded by the 
coordinates, listed below. The modification of the ODMDS will allow the 
EPA to adaptively manage the ODMDS to maximize its capacity, minimize 
the potential for mounding and associated safety concerns, potentially 
create hard bottom habitat and minimize the potential for any long-term 
adverse effects to the marine environment.
    The coordinates for the site are, in North American Datum 83 (NAD 
83):
Modified Charleston ODMDS
(A) 32[deg]36.280' N., 79[deg]43.662' W.
(B) 32[deg]37.646' N., 79[deg]46.576' W.
(C) 32[deg]39.943' N., 79[deg]45.068' W.
(D) 32[deg]38.579' N., 79[deg]42.152' W.

    The modified ODMDS is located in approximately 30 to 45 feet of 
water, and is located to approximately 6.0 nmi offshore. The modified 
ODMDS would be 7.4 nmi\2\ in size.

C. Response to Comments Received

    On July 13, 2016, the EPA published a proposed rule to modify the 
site and opened a public comment period under Docket ID No. EPA-R04-OW-
2016-0356. The comment period ended on August 12, 2016. The EPA 
received two comments on the proposed rule. One comment was from the 
U.S. Department of Interior stating that they had no comments at this 
time. The second comment was from the U.S. National Oceanic and 
Atmospheric Administration in regards to a clerical error with three 
site coordinates describing the location of the ODMDS. The EPA 
acknowledges the error and is making corrections as described in the 
technical amendment section below.

D. Management and Monitoring of the Site

    The modified ODMDS is expected to receive sediments dredged by the 
USACE to deepen and maintain the federally authorized navigation 
project at Charleston Harbor, South Carolina, and dredged material from 
other persons who have obtained a permit for the transportation of 
dredged material

[[Page 61621]]

for the purpose of disposal at the ODMDS. All persons using the ODMDS 
are required to follow a Site Management and Monitoring Plan (SMMP) for 
the ODMDS. The SMMP includes management and monitoring requirements to 
ensure that dredged materials disposed at the ODMDS are suitable for 
disposal in the ocean and that adverse impacts of disposal, if any, are 
addressed to the maximum extent practicable. The SMMP for the modified 
ODMDS, in addition to the aforementioned, also addresses management of 
the ODMDS to ensure adverse mounding does not occur, promotes habitat 
creation where possible and to ensure that disposal events minimize 
interference with other uses of ocean waters in the vicinity of the 
modified ODMDS. The SMMP, which was available for public review, is 
currently being routed for signature by the Charleston District 
Engineer.

E. MPRSA Criteria

    In modifying the ODMDS, the EPA assessed the modified ODMDS 
according to the criteria of the MPRSA, with particular emphasis on the 
general and specific regulatory criteria of 40 CFR part 228, to 
determine whether the site modification satisfies those criteria. The 
EPA's Final Environmental Assessment for Modification of an Ocean 
Dredged Material Disposal Site Offshore Charleston, South Carolina, 
[June 2016] (EA), provides an extensive evaluation of the criteria and 
other related factors for the modification of the ODMDS.
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)).
    Dredged material disposal within the existing Charleston ODMDS has 
been confined to the eastern side of the designated site within a 
defined 4-mi\2\ disposal zone to avoid impacts to live hardbottom. 
During this time, dredged material disposal at the site has not 
interfered with commercial or recreational navigation, commercial 
fishing, or sportfishing activities. The modification of the site 
boundaries to the north, east, and south is not expected to change 
these conditions. This action avoids major fisheries, natural and 
artificial reefs, and areas of recreational use. Modification of the 
site to the east will minimize interference with shellfisheries by 
avoiding areas located primarily to the west of the ODMDS that are 
frequently used by commercial shrimpers. Construction of the berm will 
provide an additional approximately 427 acres of hardbottom habitat and 
will protect existing hardbottom habitat by minimizing sediment 
transport. There will be a 3000-foot buffer along the northern 
perimeter of the ODMDS where dumping will not occur. Modeling results 
indicate that this buffer should be sufficient to protect probable 
hardbottom areas to the north of the site.
    (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)).
    The ODMDS modification area will be used for disposal of suitable 
dredged material as determined by Section 103 of the MPRSA. Based on 
the USACE and EPA sediment testing and evaluation of dredged 
maintenance material and proposed new work material from the Post 45 
deepening project, disposal is not expected to have any long-term 
impact on the water quality. Results of the maximum concentration found 
outside the disposal area after 4 hours of mixing for each dredging 
unit was zero. Based on these results, water quality perturbations that 
could reach any beach, shoreline, marine sanctuary, or known 
geographically-limited fishery or shellfishery are not expected. The 
western edge of the modified ODMDS is approximately 7 miles offshore 
such that prevailing current will not transport dredged material to 
beaches. Water quality perturbations caused by dispersion of disposal 
material will be reduced to ambient conditions before reaching any 
environmentally sensitive areas.
    (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)).
    The location, size, and configuration of the modified ODMDS 
provides long-term capacity, site management, and site monitoring while 
limiting environmental impacts to the surrounding area. Based on 25 
years of projected new work and maintenance dredged material disposal 
needs, it is estimated that the ODMDS modification area should 
accommodate approximately 66.5 mcy of dredged material in order to meet 
the long-term disposal needs of the area. The dump zone within the 
modified ODMDS is estimated to have approximately 75 mcy of capacity. 
The capacity in the dump zone provides a reasonable amount of 
additional capacity to manage risk, account for future unknown disposal 
operations from private entities, and provides a margin of navigation 
safety. The remaining area within the boundaries of the existing 12 
nmi\2\ Charleston ODMDS (parallelogram) would be de-designated. The 
area to be de-designated is approximately 10.4 mi\2\ (7.8 nmi\2\) in 
size and contains documented hardbottom habitat.
    By adding 5.8 mi\2\ (4.4 nmi\2\) to the existing ODMDS disposal 
zone, the total area of the modified Charleston ODMDS would be 9.8 
mi\2\ (7.4 nmi\2\), with a dump zone area of 5.1 mi\2\ (3.9 nmi\2\). An 
ODMDS of this size and capacity will provide a long-term ocean disposal 
option for the region.
    To help protect nearby hardbottom habitat from being buried by 
sediment migrating from the ODMDS, a U-shaped berm along the east, 
south, and west perimeters of the modified ODMDS will be constructed. 
Although there is probable hardbottom located north of the modified 
ODMDS, no berm will be constructed along the northern boundary. 
However, there will be a 3000-foot buffer along the northern perimeter 
of the ODMDS where dumping will not occur. Fate modeling indicates that 
this buffer should be sufficient to protect probable hardbottom areas 
to the north of the site.
    When determining the size of the modified site, the ability to 
implement effective monitoring and surveillance programs, among other 
things, was factored in to ensure that navigational safety would not be 
compromised and to prevent mounding of dredged material, which could 
result in adverse wave conditions. A site management and monitoring 
program will be implemented to determine if disposal at the site is 
significantly affecting adjacent areas and to detect the presence of 
long-term adverse effects. At a minimum, the monitoring program will 
consist of bathymetric surveys, sediment grain size analysis, chemical 
analysis of constituents of concern in the sediments, and a health 
assessment of the benthic community.
    (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)).

[[Page 61622]]

    The continental slope is approximately 55 nmi offshore of 
Charleston. Disposal off the continental shelf (shelf break) was 
evaluated in detail the 1983 ODMDS Designation EIS document. In 
comparison to locating the site in the nearshore region, it was 
determined that monitoring and surveillance would be more difficult and 
expensive in the shelf break area because of the distance from shore to 
the deeper waters. Transporting material to and performing long-term 
monitoring of a site located off the continental shelf is not 
economically or operationally feasible.
    The historically used ocean dumping site, Charleston ODMDS, is not 
located beyond the continental shelf. A portion of the modified ODMDS 
encompasses an area previously designated for disposal.
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 modified ODMDS is located on the shallow continental shelf, 
approximately 6 nmi offshore of Charleston, South Carolina. Water 
depths range from -30 to -45 feet (9 to 13 meters) with an overall 
average depth of -40 feet (12 meters). Characteristics of the South 
Atlantic Bight seafloor include low relief, relatively gentle 
gradients, and smooth bottom surfaces exhibiting physiographic features 
contoured by erosional processes. Sediments largely consist of fine to 
coarse sands. Some areas contain extensive coarse grains and shell 
hash. Fines were found to be typically less than 10%.
    (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 modified ODMDS is not located in exclusive breeding, spawning, 
nursery, feeding, or passage areas for adult or juvenile phases of 
living resources. The intensity of these activities within the vicinity 
of the ODMDS is seasonally variable, with peaks typically occurring in 
the spring and early fall for most commercially important finfish and 
shellfish species (USEPA 1983). The ODMDS is not located within North 
Atlantic right whale critical habitat.
    (3) Location in relation to beaches and other amenity areas (40 CFR 
228.6(a)(3)).
    The center of the modified ODMDS is approximately 7 mi (6 nmi) from 
the nearest coastal beach. The site is approximately 3.1 mi (2.7 nmi) 
south of the nearest artificial reef. No significant impacts to beaches 
or amenity areas associated with the existing ODMDS have been 
documented.
    (4) Types and quantities of wastes proposed to be disposed of, and 
proposed methods of release, including methods of packing the waste, if 
any (40 CFR 228.6(a)(4)).
    Only material that meets EPA Ocean Dumping Criteria in 40 CFR 220-
229 will be placed in the ODMDS. Average annual maintenance material is 
approximately 1.4 mcy and approximately 31.2 mcy of new work material 
is expected from the Charleston Harbor Deepening Project. Sediments 
dredged from Charleston Harbor and the entrance channel are a mixture 
of silt, sand, and rock. Hopper dredge, barge, and scow combinations 
are the usual vehicles of transport for the dredged material. None of 
the material is packaged in any manner.
    (5) Feasibility of surveillance and monitoring (40 CFR 
228.6(a)(5)).
    The EPA expects monitoring and surveillance at the modified ODMDS 
to be feasible and readily performed from ocean or regional class 
research vessels. The modified ODMDS is of similar size, water depth 
and distance from shore as are a majority of the ODMDSs within the 
Southeastern United States which are routinely monitored. The EPA will 
ensure monitoring of the site for physical, biological and chemical 
attributes as well as for potential impacts beyond the site boundaries. 
Bathymetric surveys will be conducted routinely as defined in the SMMP, 
contaminant levels in the dredged material will be analyzed prior to 
dumping, and the benthic infauna and epibenthic organisms will be 
monitored every 10 years, as funding allows.
    (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)).
    A study conducted by EPA from 2013-2015 indicated that currents in 
the vicinity of the Charleston ODMDS tend to have a significant tidal 
component with predominant currents in the cross-shore direction. The 
depth-averaged median current velocity was 18 cm/sec (0.6 ft/sec) with 
90% of the measurements below 30 cm/sec (1.1 ft/sec). Wind-driven 
circulation is the most important factor in controlling sediment 
transport. Strong winds generate waves that steer the sediment on the 
seabed and create large nearbed suspended sediment concentrations. 
Suspended sediment transport is directed mainly NE and SW in response 
to local wind climate and the wind-generated alongshore flows. LTFATE 
and MPFATE modeling results over a 25-year period indicate depths of 
sediment deposited outside the boundaries of the ODMDS will not exceed 
the 5 cm deposition contour guidance provided by EPA.
    (7) Existence and effects of current and previous discharges and 
dumping in the area (including cumulative effects) (40 CFR 
228.6(a)(7)).
    Previous disposal of dredged material resulted in temporary 
increases in suspended sediment concentrations during disposal 
operations, localized mounding within the site, burial of benthic 
organisms within the site, changes in the abundance and composition of 
benthic assemblages, and changes in the sediment composition from sandy 
sediments to finer-grained silts. Impacts to live bottoms were 
identified in the western portion of the 12-mi\2\ ODMDS.
    Short-term, long-term, and cumulative effects of dredged material 
disposal in the ODMDS modification area would be similar to those for 
the existing ODMDS.
    (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 modified ODMDS is not expected to interfere with shipping, 
fishing, recreation or other legitimate uses of the ocean. Commercial 
navigation, commercial fishing, and mineral extraction (sand mining) 
are the primary activities that may spatially overlap with disposal at 
the modified ODMDS. The modified ODMDS avoids the National 
Oceanographic and Atmospheric Administration (NOAA) recommended vessel 
routes offshore Charleston, South Carolina, thereby avoiding conflict 
with commercial navigation.
    Commercial fishing (shrimp trawling) occurs primarily to the west 
of the modified ODMDS. The likelihood of direct interference with these 
activities is low, provided there is close communication and 
coordination among users of the ocean resources. The EPA is not aware 
of any plans for desalination plants, or fish and shellfish culture 
operations near the modified ODMDS at this time. The modified ODMDS is 
not located in areas of special scientific importance.
    (9) The existing water quality and ecology of the sites as 
determined by available data or trend assessment of baseline surveys 
(40 CFR 228.6(a)(9)).
    Water quality of the existing site is typical of the Atlantic 
Ocean. Water and sediment quality analyses conducted in the study area 
and experience with past

[[Page 61623]]

disposals in the Charleston ODMDS have not identified any adverse water 
quality impacts from ocean disposal of dredged material. The site 
supports benthic and epibenthic fauna characteristic of the South 
Atlantic Bight. Neither the pelagic (mobile) or benthic (non-mobile) 
communities should sustain irreparable harm due to their widespread 
occurrence off the South Carolina 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 modified ODMDS. They are either transported to or 
recruited to the site because the disposal of dredged material creates 
an environment where they can establish. Habitat conditions have 
changed somewhat at the Charleston ODMDS because of the disposal of 
some silty material on what was predominately sandy sediments. While it 
can be expected that organisms will become established at the site 
which were not there previously, this new community is not regarded as 
a nuisance, or ``undesirable,'' community.
    (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 have been identified at, or in the 
vicinity of, the modified ODMDS at this time. Surveys conducted in 
2012-2013 did not identify any cultural features of historical 
importance. The EPA has coordinated with South Carolina's State 
Historic Preservation Officer (SHPO) to identify any cultural features. 
The SHPO concurred with the EPA's determination that the modification 
of the ODMDS will have no effect on cultural resources listed, or 
eligible for listing on the National Register of Historic Places as no 
such resources exist in the project area.

F. Technical Amendment

    The EPA corrected a clerical error that was included in the 
proposed language regarding the modified ODMDS coordinates. The second, 
third, and fourth latitude coordinates were incorrect in the proposed 
language but have been corrected to reflect the actual corner 
coordinates for the modified ODMDS.

III. 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 the EPA's actions under the 
MPRSA from the procedural requirements of NEPA through the functional 
equivalence doctrine. The EPA has, by policy, determined that the 
preparation of NEPA documents for certain EPA regulatory actions, 
including actions under the MPRSA, is appropriate. The 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 the EPA uses when preparing such 
environmental review documents. The EPA's primary voluntary NEPA 
document for expanding the ODMDS is the Final Environmental Assessment 
for Modification of an Ocean Dredged Material Disposal Site Offshore 
Charleston, South Carolina, [June 2016] (FEA), prepared by the EPA in 
cooperation with the USACE. Anyone desiring a copy of the FEA may 
obtain one from the addresses given above. A draft of this document was 
released for public review in December, 2015. The public comment period 
on the FEA closed on August 9, 2016. The FEA and its Appendices, which 
are part of the Docket for this action, provide the threshold 
environmental review for modification of the ODMDS. The information 
from the FEA is used above, in the discussion of the ocean dumping 
criteria.

B. MSA

    The EPA integrated the essential fish habitat (EFH) assessment with 
the EA, 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 
(NMFS) on December 4, 2015. The NMFS responded via letter that they 
have no comments on the proposed project.

C. CZMA

    Pursuant to an Office of Water policy memorandum dated October 23, 
1989, the EPA has evaluated the proposed site designations for 
consistency with the State of South Carolina's (the State) approved 
coastal management program. The EPA has determined that the designation 
of the modified site is consistent to the maximum extent practicable 
with the State coastal management program, and submitted this 
determination to the State for review in accordance with the EPA 
policy. The State conditionally concurred with this determination on 
February 17, 2016. The EPA has taken the State's comments into account 
in preparing the FEA for the site, in determining whether the site 
should be modified as proposed, and in determining whether restrictions 
or limitations should be placed on the use of the site, if it is 
designated.

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. The EPA incorporated a Biological Assessment 
(BA) into the EA to assess the potential effects of expanding the 
Charleston ODMDS on aquatic and wildlife species and submitted that 
document to the NMFS and USFWS on December 4, 2016. The EPA concluded 
that the proposed project would not adversely affect any threatened or 
endangered species, nor would it adversely modify any designated 
critical habitat. The USFWS concurred on the EPA's finding that the 
proposed action is not likely to adversely affect listed endangered or 
threatened species under the jurisdiction of the USFWS. The NMFS 
concluded the proposed action is not likely to adversely affect listed 
species under their jurisdiction.

E. NHPA

    The USACE and the EPA initiated consultation with the State of 
South Carolina's Historic Preservation Officer (SHPO) on December 4, 
2015, to address the National Historic Preservation Act, as amended 
(NHPA), 16 U.S.C. 470 to 470a-2, which requires Federal agencies

[[Page 61624]]

to take into account the effect of their actions on districts, sites, 
buildings, structures, or objects, included in, or eligible for 
inclusion in the National Register of Historic Places (NRHP). In a 
letter dated January 6, 2016, the SHPO determined that no properties 
listed in or eligible for listing in the National Register of Historic 
Places will be affected by the project.

IV. Statutory and Executive Order Reviews

    This rule modifies the designation of an ODMDS pursuant to Section 
102 of the MPRSA. This action complies with applicable executive orders 
and statutory provisions as follows:

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. 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. 
Burden is defined at 5 CFR 1320.3(b). This site modification does not 
require persons to obtain, maintain, retain, report, or publicly 
disclose information to or for a Federal agency.D

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. The EPA determined that this action will not 
have a significant economic impact on small entities because this rule 
will only have the effect of regulating the location of site to be used 
for the disposal of dredged material in ocean waters. After considering 
the economic impacts of this 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. In the spirit of Executive Order 13132, and consistent 
with EPA policy to promote communications between the EPA and State and 
local governments, the EPA specifically solicited comments on this 
action from State and local officials.

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 modification of the Charleston ODMDS 
will not have a direct effect on Indian Tribes, on the relationship 
between the federal government and Indian Tribes, or on the 
distribution of power and responsibilities between the federal 
government and Indian Tribes. Thus, Executive Order 13175 does not 
apply to this action. The EPA specifically solicited comments from 
tribal officials.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern health or safety risks, such that the 
analysis required under Section 5-501 of the Executive Order has the 
potential to influence the regulation. This 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 modification of the Charleston ODMDS and only has the 
effect of providing a designated location 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 the EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus bodies. The NTTAA directs the EPA to provide 
Congress, through 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. The EPA will not require the use of specific, prescribed analytic 
methods for monitoring and managing the designated ODMDS. The Agency 
plans to allow the use of any method, whether it constitutes a 
voluntary consensus standard or not, that meets the monitoring and 
measurement criteria discussed in the SMMP.

[[Page 61625]]

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. The 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. The EPA has assessed the overall protectiveness of 
modifying the Charleston ODMDS against the criteria established 
pursuant to the MPRSA to ensure that any adverse impact to the 
environment will be mitigated to the greatest extent practicable. We 
welcome comments on this action related to this Executive Order.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

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

    Dated: August 24, 2016.
V. Anne Heard,
Acting Regional Administrator, Region 4.

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

PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN 
DUMPING

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

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

0
2. Section 228.15 is amended by revising paragraphs (h)(5)(i) through 
(iii) and (vi) to read as follows:

Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (5) * * *
    (i) Location: 32[deg]36.280' N., 79[deg]43.662' W.; 32[deg]37.646' 
N., 79[deg]46.576' W.; 32[deg]39.943' N., 79[deg]45.068' W.; 
32[deg]38.579' N., 79[deg]42.152' W.
    (ii) Size: Approximately 7.4 square nautical miles in size.
    (iii) Depth: Ranges from approximately 30 to 45 feet (9 to 13.5 
meters).
* * * * *
    (vi) Restrictions: (A) Disposal shall be limited to dredged 
material from the Charleston, South Carolina, area;
    (B) Disposal shall be limited to dredged material determined to be 
suitable for ocean disposal according to 40 CFR 227.13;
    (C) Disposal shall be managed by the restrictions and requirements 
contained in the currently-approved Site Management and Monitoring Plan 
(SMMP);
    (D) Monitoring, as specified in the SMMP, is required.
* * * * *
[FR Doc. 2016-21454 Filed 9-6-16; 8:45 am]
 BILLING CODE 6560-50-P
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