[Federal Register Volume 74, Number 71 (Wednesday, April 15, 2009)]
[Rules and Regulations]
[Pages 17406-17414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8660]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R10-OW-2008-0745; FRL-8791-2]


Ocean Dumping; Designation of Ocean Dredged Material Disposal 
Site Offshore of the Rogue River, OR

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On October 14, 2008, EPA published a proposed rule at 73 FR 
60662 to designate an ocean dredged material disposal site located 
offshore of the Rogue River, Oregon, and simultaneously withdrew an 
earlier proposal. EPA observed a typographical error in the proposed 
rule as published. In proposed rule, FR Doc. EPA-R10-OW-2008-0745, on 
page 60670 in the issue of October 14, 2008, in the first column, the 
very first coordinate was published as 42[deg]24'5.40'' N, but should 
have been published as 42[deg]24'15.40'' N. The coordinate was 
published correctly on page 60664 in the first column as 
42[deg]24'15.40'' N. EPA received no comments on the proposed rule. EPA 
did receive one letter, dated November 12, 2008, from the Department of 
the Interior (DOI) stating that DOI had no comments. This action 
finalizes the designation of the Rogue River ocean dredged material 
disposal site, with the correct coordinates, pursuant to the Marine 
Protection, Research, and Sanctuaries Act, as amended (MPRSA), 33 
U.S.C. 1401 to 1445. The new site is needed primarily to serve as a 
long-term location for the disposal of material dredged from the Rogue 
River navigation channel. The new site will also serve to provide a 
location for the disposal of dredged material for persons who have 
received a permit for such disposal. The newly designated site will be 
subject to ongoing monitoring and management as specified in this rule 
and in the Site Management and Monitoring Plan, which is also finalized 
as part of this action. The monitoring and management requirements will 
help to ensure continued protection of the marine environment.

[[Page 17407]]


DATES: Effective Date: This final rule will be effective May 15, 2009.

ADDRESSES: For more information on this final rule, Docket ID No. EPA-
R10-OW-2008-0745, use one of the following methods:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for accessing the docket and materials related to the 
final rule.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#2c6a5e494948414d42026643424d58444d426c495c4d024b435a"><span class="__cf_email__" data-cfemail="3076425555545d515e1e7a5f5e514458515e705540511e575f46">[email protected]</span></a>
    <bullet> Mail: Jonathan Freedman, US Environmental Protection 
Agency, Region 10, Office of Ecosystems, Tribal and Public Affairs 
(ETPA-083), Aquatic Resources Unit, 1200 Sixth Avenue, Suite 900, 
Seattle, Washington 98101.

Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy during normal business 
hours at the US Environmental Protection Agency, Region 10, Library, 
10th Floor, 1200 Sixth Avenue, Suite 900, Seattle, Washington 98101. 
For access to the documents at the Region 10 Library, contact the 
Region 10 Library Reference Desk at (206) 553-1289, between the hours 
of 9 a.m. to 11:30 a.m., and between the hours of 1 p.m. to 4 p.m., 
Monday through Friday, excluding legal holidays, for an appointment.

FOR FURTHER INFORMATION CONTACT: Jonathan Freedman, US Environmental 
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public 
Affairs (ETPA-083), Aquatic Resources Unit, 1200 Sixth Avenue, Suite 
900, Seattle, Washington 98101, phone number: (206) 553-0266, e-mail: 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="4f293d2a2a2b222e21612520212e3b272e210f2a3f2e61282039">[email protected]</a>, or contact Jessica Winkler, US Environmental 
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public 
Affairs (ETPA-083), Aquatic Resources Unit, 1200 Sixth Avenue, Suite 
900, Seattle, Washington 98101, phone number: (206) 553-7369, e-mail: 
<a href="/cdn-cgi/l/email-protection#dcabb5b2b7b0b9aef2b6b9afafb5bfbd9cb9acbdf2bbb3aa"><span class="__cf_email__" data-cfemail="62150b0c090e07104c080711110b0103220712034c050d14">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

1. Potentially Affected Persons

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

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

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

2. Background

a. History of Disposal Site Offshore of the Rogue River, Oregon

    The final Rogue River ocean dredged material disposal site, or 
areas in the same vicinity, were used by the Corps beginning in 1962. 
When the MPRSA was enacted, the site became an ``interim'' site under 
the ocean dumping regulations, a status superseded by later statutory 
changes to the MPRSA. The site was selected for use by the Corps under 
Section 103 of the MPRSA. That authority allows the Corps to select a 
site for disposal when a site has not been designated. EPA concurred on 
that selection and in 2003 approved the Corps' request to continue to 
use the site through the end of the 2008 dredging season.
    From 1986 through 2006, over 1.1 million cubic yards (cy) of 
dredged material were placed at the Rogue River site. A uniform 
placement strategy, rather than point dumping, was applied to the 
disposal of material at the site and regular bathymetric surveys were 
conducted. Data collected from those surveys showed that persistent 
mounding did not occur within the site or in the vicinity of the site. 
Over the long-term, site capacity appears to be unconstrained based on 
the historical and anticipated disposal volumes because material placed 
redistributes out of the site, feeding the littoral cell.

[[Page 17408]]

[GRAPHIC] [TIFF OMITTED] TR15AP09.008

b. Location and Configuration of Final Rogue River Ocean Dredged 
Material Disposal Site

    Figure 1, above, shows the Rogue River ocean dredged material 
disposal site (Rogue River ODMDS or Site) EPA designates in this 
action. The Site's configuration is expected to allow dredged material 
disposed in shallower portions of the Site to naturally disperse into 
the littoral zone without creating mounding conditions that could 
contribute to adverse impacts to navigation. This final Site 
configuration will allow EPA to ensure that disposal of dredged 
material into the Site will be managed so that as much material as 
possible is retained in the active littoral drift area to augment 
shoreline building processes.
    The coordinates for the Rogue River ODMDS as finalized in this 
action are, in North American Datum 83 (NAD 83):

42[deg]24'15.40'' N, 124[deg]26'52.39'' W
42[deg]24'03.40'' N, 124[deg]26'39.39'' W
42[deg]23'39.40'' N, 124[deg]27'17.40'' W
42[deg]23'51.40'' N, 124[deg]27'30.40'' W

    The Site occupies approximately 116 acres. The Site's final 
dimensions are: 1,400-feet wide by 3,600-feet long, with Site depth 
ranging from approximately 50 to 90 feet. The Site generally lies on 
bottom contours sloping at a rate of 8/1000 feet to the west-southwest. 
The disposal area, placement area, and drop zone for the Site are 
identical.

c. Management and Monitoring of the Final Site

    The final Rogue River ODMDS is expected to receive sediments 
dredged by the Corps to maintain the federally authorized navigation 
project at the Rogue River, Oregon, and dredged material from other 
persons who have obtained a permit for the disposal of dredged material 
at the Site. The ocean dumping regulations do not require a 
modification of any existing permits issued before this final action. 
All persons using the Site are required to follow the final Site 
Management and

[[Page 17409]]

Monitoring Plan (SMMP) for the Rogue River ODMDS which is available to 
the public as part of this action. The SMMP includes management and 
monitoring requirements to ensure that dredged materials disposed at 
the Site are suitable for disposal in the ocean. The final SMMP 
addresses the timing of disposal events to minimize interference with 
other uses of ocean waters in the vicinity of the Site.

d. MPRSA Criteria

    EPA assessed this final action against the criteria of the MPRSA, 
with particular emphasis on the general and specific regulatory 
criteria of 40 CFR Part 228, and determined that the final site 
designation satisfies those criteria.
General Criteria (40 CFR 228.5)
    (1) Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or shellfisheries, and regions of heavy commercial 
or recreational navigation (40 CFR 228.5(a)).
    EPA's assessment of information available at the time of this final 
rule included a review of the potential for interference with 
navigation, recreation, shellfisheries, aquatic resources, commercial 
fisheries, protected geologic features, and cultural and/or 
historically significant areas. While limited overlap was found to 
exist between disposal operations and salmon fishing, no observable 
conflicts were identified. No evidence was found to suggest that the 
final Site would cause interference with fisheries or with navigation 
in the Rogue River navigation channel. The final Site has been used 
over the past decades for dredged material disposal, most recently 
pursuant to Section 103 of the MPRSA, as a site selected by the Corps 
with EPA's concurrence. Mariners in this area are accustomed to Site 
use.
    (2) Sites must be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or undetectable contaminant concentrations or effects before reaching 
any beach, shoreline, marine sanctuary, or known geographically limited 
fishery or shellfishery (40 CFR 228.5(b)).
    Based on EPA's review of modeling, monitoring data and history of 
use, there is no indication that detectable contaminant concentrations 
or water quality effects would reach any beach, shoreline, or other 
area outside of the final Site. All dredged material proposed for 
disposal will be evaluated according to the ocean dumping regulations 
at 40 CFR 227.13 and guidance developed by EPA and the Corps. In 
general, dredged material which meets the criteria under 40 CFR 
227.13(b) is deemed environmentally acceptable for ocean dumping 
without further testing. Dredged material which does not meet the 
criteria of 40 CFR 227.13(b), must be further tested as required by 40 
CFR 227.13(c). Suitable material can be disposed of at the Site. 
Modeling work performed by the Corps at the Umpqua River, demonstrates 
that water column turbidity, a temporary perturbation during disposal, 
would dissipate for an anticipated 97% of coarser material within a few 
minutes of disposal. The remaining 3% of the material, which would be 
classified as fine-grained, would dissipate within a half hour. Over 
time, some of the suitable disposed material would be expected to 
migrate into the active littoral drift system.
    (3) If Site designation studies show that any interim disposal 
sites do not meet the site selection criteria, use of such sites shall 
be terminated as soon as any alternate site can be designated (40 CFR 
228.5(c)).
    EPA's recent final rule at 73 FR 74983 (December 10, 2008) repealed 
obsolete regulations under the MPRSA regarding interim ocean dumping 
sites and interim ocean dumping criteria. EPA stated in the proposed 
rule that there are no interim sites near the Rogue Site, however, the 
category of ``interim site'' has since been removed from the ocean 
dumping criteria.
    (4) The sizes of disposal sites will be limited in order to 
localize for identification and control of any immediate adverse 
impacts, and to permit the implementation of effective monitoring and 
surveillance to prevent adverse long-range impacts. Size, 
configuration, and location are to be determined as part of the 
disposal site evaluation (40 CFR 228.5(d)).
    EPA sized the final Site to meet this criterion. The final Site 
tends to be moderately dispersive in the near-shore area and tends to 
be less dispersive farther from shore. The overall stability of the 
Site, as indicated by the lack of adverse mounding, is a significant 
component of the justification for the size of the Site. Data collected 
by the Corps through bathymetric monitoring show the spread and 
movement of material after placement. The data establish that material 
from the Site eventually disperses over the footprint of the site and 
with seasonal movement disperses into the littoral system. Monitoring 
of the final Site is required in the SMMP and effective monitoring of 
the Site is anticipated based on past practice and current ability to 
monitor the location and conduct surveillance.
    (5) EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites where 
historical disposal has occurred (40 CFR 228.5(e)).
    The final Site is located where historic disposal occurred with a 
history of minimal impact to the environment, and minimal impact to 
other uses and amenities. Locations off the continental shelf in the 
Pacific Ocean are generally inhabited by stable benthic and pelagic 
ecosystems on steeper gradients that are not well adapted to frequent 
disturbance events such as occur with the disposal of dredged material. 
Monitoring and surveillance of the final Site do not pose the 
challenges inherent in a site located beyond the edge of the 
continental shelf. Material disposed beyond the edge of the continental 
shelf would not be available to the littoral system.
Specific Criteria (40 CFR 228.6)
    (1) Geographical Position, Depth of Water, Bottom Topography and 
Distance from Coast (40 CFR 228.6(a)(1)).
    Based on the data available, the geographical position, including 
the depth of the final Site, bottom topography and distance from the 
coastline in the vicinity of the final Site, indicates that designation 
of the final Site will not cause adverse effects to the marine 
environment. EPA understands that the currents at the final Site and 
their influence on the movement of material in the area suggest there 
is a high likelihood that much of the material disposed at the Site 
will be transported to the littoral sediment circulation system. 
Limited onshore transport of material disposed of at the Site is not 
expected because of the nature of the prevailing currents and because 
wave transport in the vicinity of the Site trends alongshore. Net 
predicted material transport at the Site is southward in the summer 
months and northward during the remainder of the year. These transport 
mechanisms are expected to move material into the active littoral drift 
area. This movement is expected to allow for long-term disposal without 
creation of adverse mounding conditions.
    (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 final Site is not located in exclusive breeding, spawning, 
nursery or feeding areas for adult or juvenile phases of living 
resources. Modeling of the water column, which indicates that turbidity 
from a disposal event would

[[Page 17410]]

be expected to dissipate fairly rapidly, indicates that avoidance 
behavior by any species at the final Site would be short-term.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The final Site, although located in close proximity to the Rogue 
River navigation channel, is located a sufficient distance offshore to 
avoid adverse impacts to beaches and other amenity areas. 
Transportation of dredges or barges to and from the final Site to 
dispose of dredged material is expected to be coordinated so as to 
avoid disturbance of other activities near the Rogue River entrance 
channel.
    (4) Types and Quantities of Wastes Final to be Disposed of, and 
Final Methods of Release, including Methods of Packing the Waste, if 
any (40 CFR 228.6(a)(4)).
    Dredged material characterized by chemical and biological testing 
and found suitable for disposal into ocean waters will be the only 
material allowed to be disposed of at the final Site. No material 
defined as ``waste'' under the MPRSA will be allowed to be disposed of 
at the final Site. The dredged material expected to be disposed of at 
the Site will be predominantly marine sand, far removed from known 
sources of contamination.
    With respect to final methods of releasing material at the final 
Site, material will be released just below the surface from dredges 
while the dredges are under power and slowly transiting the final Site. 
This method of release is expected to spread material at the Site to 
minimize mounding and to minimize impacts to the benthic community and 
other species in, or near, the Site at the time of a disposal event.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    Monitoring and surveillance at the final Site are expected to be 
feasible and easily performed from small surface research vessels. The 
final Site is accessible for bathymetric and side-scan sonar surveys. 
At a minimum, annual bathymetric surveys will be conducted at the final 
Site to confirm that no unacceptable mounding is taking place within 
the Site or its immediate vicinity. Routine monitoring is expected to 
concentrate on examining how the distribution of material in the near-
shore portions of the Site augment littoral processes and how 
distribution of material in the deeper portions of the Site avoid or 
minimize mounding.
    (6) Dispersal, Horizontal Transport and Vertical Mixing 
Characteristics of the Area, Including Prevailing Current Direction and 
Velocity, if any (40 CFR 228.6(a)(6)).
    Dispersal, horizontal transport and vertical mixing characteristics 
of the area at and in the vicinity of the final Site are complex. This 
complexity is partly a result of rocky reefs to the north of the final 
Site which appear to influence mass transport, and in part the 
complexity can be attributed to prevailing wave-induced motion and 
currents moving towards the north during much of the year. Wave-induced 
motion appears to cause near-constant mobilization of bottom sediment. 
The overall regional mass transport trend suggests that net littoral 
transport of material is to the north from the final Site. That overall 
littoral transport appears to be balanced by offshore transport from 
the mouth of the Rogue River to the north of the final Site such that 
there is shoreline accretion to the north and relative equilibrium of 
the shoreline to the south.
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    The approximate annual loading volume of dredged material placed at 
the final Site is expected to equal 54,000 cubic yards (cy) of 
material. This average was calculated by averaging seasonal material 
placement over disposal seasons from the time the site became a 
selected site. Annual monitoring of the Site is required in the final 
SMMP for the Site. The final SMMP includes requirements for managing 
the Site to address mounding issues if mounding occurs.
    (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)).
    Disposals at the final Site will be managed through the SMMP to 
minimize interference with other legitimate uses of the ocean through 
careful timing and staggering of disposals in the near-shore and deeper 
portions of the final Site.
    (9) The Existing Water Quality and Ecology of the Sites as 
Determined by Available Data or Trend Assessment of Baseline Surveys 
(40 CFR 228.6(a)(9)).
    EPA did not identify any adverse water quality impacts or adverse 
impacts to overall ecology from the historic use of the final Site.
    (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 final Site. The final SMMP includes specific 
biological monitoring requirements, which would act to identify any 
nuisance species, and management requirements, which would allow EPA to 
direct special studies and/or operational changes to address nuisance 
species.
    (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)).
    The final Site is located about two nautical miles south-southeast 
of the Rogue Reef complex, an ecologically unique feature among a 
system of neritic reefs off the Oregon coast. Dredged material disposed 
at the final Site is generally expected to settle to the seafloor 
quickly. Naturally occurring littoral transport, which would not be 
expected to adversely affect aquatic communities in the reef areas, is 
anticipated on a small scale. No significant cultural features were 
identified at, or in the vicinity of, the final Site. As discussed 
below, EPA coordinated with Oregon's State Historic Preservation 
Officer and with Tribes in the vicinity of the final Site to identify 
any cultural features. None were identified. No shipwrecks were 
observed or documented within the final Site or its immediate vicinity.

e. 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)

(1) 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. 
EPA's NEPA regulations are found at 40 CFR Part 6. NEPA does not apply 
to EPA designations of ocean disposal sites because the courts have 
exempted EPA's actions under the MPRSA from the procedural requirements 
of NEPA through application of the functional equivalence doctrine. EPA 
has, by policy, determined that the preparation of non-EIS NEPA 
documents for certain EPA regulatory actions, including actions under 
the MPRSA, is appropriate. EPA's ``Notice of Policy and Procedures for 
Voluntary Preparation of NEPA Documents,'' (Voluntary NEPA Policy), 63 
FR 58045,

[[Page 17411]]

(October 29, 1998), sets out both the policy and procedures EPA uses 
when preparing such environmental review documents. EPA's 2007 
revisions to 40 CFR Part 6 provided the framework EPA used to prepare 
the voluntary NEPA documents for this final action.
    EPA's primary voluntary NEPA document for designating the final 
Site is the Rogue River, Oregon Ocean Dredged Material Disposal Site 
Evaluation Study and Environmental Assessment, 2009 (EA), jointly 
prepared by EPA and the Corps. The final EA and its Technical 
Appendices, are part of the docket for this final action, and provide 
the threshold environmental review for the Site designation. The 
information from the final EA is used extensively, above, in the 
discussion of the ocean dumping criteria.
(2) MSA and MMPA
    In the spring of 2008, EPA initiated consultation with the National 
Marine Fisheries Service (NMFS) concerning essential fish habitat and 
protected marine mammals. EPA prepared an essential fish habitat (EFH) 
assessment pursuant to section 305(b) of the Magnuson-Stevens Act, as 
amended (MSA), 16 U.S.C. 1801 to 1891d. NMFS reviewed EPA's EFH 
assessment and ESA Biological Assessment for purposes of the Marine 
Mammal Protection Act of 1972, as amended (MMPA), 16 U.S.C. 1361 to 
1389.
    With respect to marine mammals, NMFS found that all potential 
adverse effects to ESA-listed marine mammals are discountable or 
insignificant. Those findings are documented in Appendix A. Marine 
Mammal Determinations of the Biological Opinion issued by NMFS to EPA 
on March 19, 2009. With respect to EFH, NMFS found that disposal of 
dredge material, an indirect effect of EPA's action to designate the 
Rogue River ODMDS, will not alter the habitat value of the designated 
EFH at and in the vicinity of the Site. NMFS also concluded that 
impacts to forage base would be highly localized and any potential 
decrease in forage abundance is considered insignificant to the total 
food resources available to EFH management species. Finally, NMFS 
concluded that the safe passage of the EFH managed species will not be 
functionally changed by EPA's Site designation and the subsequent 
disposal of dredged material. Those findings are documented in the 
Magnuson-Stevens Fishery Conservation and Management Act section of the 
NMFS Biological Opinion. NMFS included a ``conservation 
recommendation'' to study fish behavior and interactions with disposed 
material at the Site. EPA will respond in a separate written response 
to NMFS' recommendation.
(3) CZMA
    EPA initiated consultation with the state of Oregon on coastal zone 
management issues in summer of 2008. EPA prepared a consistency 
determination for the Oregon Ocean and Coastal Management Program 
(OCMP) to meet the requirements of the Coastal Zone Management Act, as 
amended, (CZMA), 16 U.S.C. 1451 to 1465, and submitted that 
determination formally to the Oregon Department of Land Conservation 
and Development (DLCD) in November. DLCD publicly noticed EPA's 
consistency determination and took comments on the action until January 
2, 2009. DLCD received one comment from the Oregon Department of Fish 
and Wildlife (ODFW) expressing support for the designation of the Rogue 
River Site and supporting ocean disposal of dredged material as the 
best alternative. ODFW also characterized disposal of material in the 
littoral zone as a beneficial use. ODFW did express concern with the 
relationship of the Site to rocky terrain and with the potential 
impacts of uniform disposal.
    DLCD concurred on EPA's determination of consistency with one 
condition. The condition calls for the SMMP to assure that monitoring 
measures for the Rogue River Site are reasonably likely to identify 
significant unanticipated adverse effects on renewable marine 
resources, biological diversity of marine life and the functional 
integrity of the marine ecosystem at the site, and further asks that 
the SMMP include adaptive management measures to avoid significant 
impairment of the Site and significant decreases in abundance of 
commercial or recreational caught species from direct or indirect 
effects on important or essential habitat at the Site. DLCD responded 
to the concerns expressed by ODFW by including the condition, above, in 
its consistency concurrence. DLCD also recommended that EPA and ODFW 
coordinate on issues that might involve adjustments in Site management 
to avoid unanticipated adverse effects on important habitat and 
renewable marine resources. The final SMMP in this final designation 
provides the assurance and adaptive management measures requested.
(4) ESA
    EPA initiated informal consultation in the spring of 2008 with NMFS 
and the U.S. Fish and Wildlife Service pursuant to section 7(a)(2) of 
the ESA on EPA's action to designate the Rogue River ODMDS. EPA 
prepared a Biological Assessment to assess the potential effects of the 
Site designation on aquatic and wildlife species. EPA found that its 
action would not be likely to adversely affect (NLAA) aquatic or 
wildlife species listed as endangered or threatened pursuant to the 
Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to 1544, or 
the critical habitat of such species. EPA found that site designation 
does not have a direct impact on any of the identified ESA species but 
also found that indirect impacts associated with reasonably foreseeable 
future disposal activities had to be considered.
    The US Fish and Wildlife Service (USFWS) concurred with EPA's 
finding that EPA's action to designate the final Rogue River ODMDS 
would not likely adversely affect listed species or critical habitat. 
Consultation with the USFWS for this final action was completed on July 
29, 2008.
    The National Marine Fisheries Service (NMFS) did not concur on 
EPA's NLAA finding and subsequently prepared a Biological Opinion (BO), 
issued March 19, 2009. NMFS concluded that EPA's site designation is 
not likely to jeopardize the continued existence of Southern Oregon/
Northern California Coasts (SONCC) coho salmon or southern Distinct 
Population Segment (DPS) green sturgeon and is not likely to destroy or 
adversely modify SONCC coho salmon designated critical habitat or 
proposed southern DPS green sturgeon habitat. However, NMFS found that 
the indirect effects of the Site designation related to the exposure 
fish could experience from the disposal of dredged material could have 
consequences for listed fish. Based on NMFS' estimate of ensuing 
indirect effects of the Site designation, NMFS estimated that injury 
and death of as many as 476 yearling SONCC coho salmon and a smaller 
number of small sub-adult southern DPS green sturgeon could occur. For 
Steller sea lions, blue whales, fin whales, humpback whales, and 
Southern Resident Killer whales, NMFS concurred in the BO with EPA's 
determination of ``may affect, not likely to adversely affect.'' For 
four species of sea turtles, sperm whales, and sei whales, assessed by 
EPA in its determination of NLAA, NMFS found no effect because NMFS did 
not anticipate the species would be present in the action area.
    NMFS acknowledged in the BO that EPA's action, the Site 
designation, does not authorize and will not itself result in disposal 
of dredged material. NMFS stated that it does not anticipate any take 
will be caused by the Site designation and adoption of the SMMP.

[[Page 17412]]

Consequently, NMFS did not include an incidental take statement in the 
BO. Rather, NMFS stated that any further analysis of the effects of 
disposal of dredged material at the disposal site and issuance of an 
incidental take statement with reasonable and prudent measures and non-
discretionary terms and conditions to minimize take would be prepared 
when a disposal permit is requested by the action agency. NMFS did 
include one discretionary conservation recommendation in the BO seeking 
a study of fish interactions with disposed material. Such 
recommendations are purely advisory in nature. While EPA appreciates 
that such a study might be beneficial to the scientific knowledge base, 
EPA believes that such a study would be most helpful if carried out by 
NMFS, the expert Federal agency on fish behavior.
(5) NHPA
    EPA initiated consultation with the State of Oregon's Historic 
Preservation Officer (SHPO) to address the National Historic 
Preservation Act, as amended (NHPA), 16 U.S.C. 470 to 470a-2. The NHPA 
requires Federal agencies to take into account the effect of their 
actions on districts, sites, buildings, structures, or objects, 
included in, or eligible for inclusion in the National Register. EPA 
determined that no historic properties were affected, or would be 
affected, by the final designation of the Site. EPA did not find any 
historic properties within the geographic area of the final Site. This 
determination was based on an extensive review of the National Register 
of Historic Districts in Oregon, the Oregon National Register list and 
an assessment of cultural resources near the final Site. Side scan 
sonar of the final Site did not reveal the presence of any shipwrecks 
or other cultural or historic properties. The SHPO responded to EPA's 
determination on September 11, 2008, without objection and clarified on 
October 13, 2008 that the Site designation did not require further 
archeological investigation to proceed.

f. Action

    EPA designates the Rogue River ODMDS as an EPA-approved dredged 
material ocean disposal Site in this action. The monitoring and 
management requirements that will apply to this site are described in 
the final SMMP. EPA received no comments on the proposed rule other 
than one letter, dated November 12, 2008, from the Department of the 
Interior (DOI) stating that DOI had no comments. It should be 
emphasized that an ocean disposal site designation does not constitute 
or imply Corps or EPA approval of open water disposal of dredged 
material from any specific project. Before disposal of dredged material 
at the site may commence by any person, EPA and the Corps must evaluate 
the proposal according to the ocean dumping regulatory criteria (40 CFR 
part 227) and authorize disposal. EPA independently evaluates proposed 
dumping in accordance with those criteria pursuant to 40 CFR part 225. 
EPA has the right to disapprove of the actual disposal of dredged 
material if EPA determines that environmental requirements under the 
MPRSA have not been met.

3. Statutory and Executive Order Reviews

    This final rule designating the Rogue River ODMDS pursuant to 
Section 102 of the MPRSA complies with applicable executive orders and 
statutory provisions as follows:

(1) Executive Order 12866

    Under Executive Order 12866 (58 FR 51735), the Agency must 
determine whether the regulatory action is ``significant,'' and 
therefore subject to OMB review and the requirements of the Executive 
Order. The Executive Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more, or adversely affect in a 
material way, the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order. EPA determined that 
this final rule is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 and is therefore not subject to OMB 
review.

(2) Paperwork Reduction Act

    This final action does not impose an information collection burden 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., because this final rule does not establish or modify any 
information or recordkeeping requirements for the regulated community.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing, and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in Title 40 of the CFR are listed in 40 CFR Part 9.

(3) Regulatory Flexibility

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

(4) Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title

[[Page 17413]]

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 government 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.

(5) Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that 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.'' This rule 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 rule.

(6) Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This final rule does not have tribal implications, as specified in 
Executive Order 13175 because the designation of this dredged material 
disposal Site 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 rule. Although Executive Order 13175 does not apply to 
this final rule, EPA consulted with tribal officials in the development 
of this rule, particularly as it relates to potential impacts to 
historic or cultural resources.

(7) Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

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

(8) 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.

(9) National Technology Transfer and Advancement Act

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

(10) Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

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

(11) Congressional Review Act

    The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to 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 thirty days from the date of 
publication in the Federal Register.

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.


[[Page 17414]]


    Dated: April 3, 2009.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.

0
For the reasons set out in the preamble, chapter I of title 40 of the 
Code of Federal Regulations is amended as set forth below:

PART 228--[AMENDED]

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

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

0
2. Section 228.15 is amended by adding paragraph (n)(6) to read as 
follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (n) * * *
    (6) Rogue River, OR--Dredged Material Site
    (i) Location: 42[deg] 24'15.40'' N, 124[deg] 26'52.39'' W; 42[deg] 
24'03.40'' N, 124[deg] 26'39.39'' W; 42[deg] 23'39.40'' N, 124[deg] 
27'17.40'' W; 42[deg] 23'51.40'' N, 124[deg] 27'30.40'' W (NAD 83)
    (ii) Size: Approximately 1.1 kilometers long and 0.4 kilometers 
wide
    (iii) Depth: Ranges from approximately 15 to 27 meters
    (iv) Primary Use: Dredged material
    (v) Period of Use: Continuing Use
    (vi) Restrictions: (A) Disposal shall be limited to dredged 
material determined to be suitable for ocean disposal according to 40 
CFR 227.13, from the Rogue River navigation channel and adjacent areas;
    (B) Disposal shall be managed by the restrictions and requirements 
contained in the currently-approved Site Management and Monitoring Plan 
(SMMP);
    (C) Monitoring, as specified in the SMMP, is required.
* * * * *
[FR Doc. E9-8660 Filed 4-14-09; 8:45 am]
BILLING CODE 6560-50-P


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