[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Rules and Regulations]
[Pages 38563-38569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15529]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R04-OW-2020-0056; FRL-8737-01-R4]


Ocean Dumping; Modification of an Ocean Dredged Material Disposal 
Site Offshore Port Everglades, Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is expanding the 
size of the EPA designated ocean dredged material disposal site (ODMDS) 
offshore of Port Everglades, Florida (referred to hereafter as the 
existing Port Everglades ODMDS), pursuant to the Marine Protection, 
Research and Sanctuaries Act (MPRSA). The primary purpose for the site 
modification is to enlarge the site to provide for the long-term 
disposal capacity to dump suitable material dredged from the Port 
Everglades Harbor in ocean waters. The modified site will be subject to 
monitoring and management to ensure continued protection of the marine 
environment.

DATES: Effective: August 23, 2021.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R04-OW-2020-0056. All documents in the docket are listed on the 
http://www.regulations.gov website.

FOR FURTHER INFORMATION CONTACT: Wade Lehmann, U.S. Environmental 
Protection Agency, Region 4, Water Division, Oceans and Estuarine 
Management Section, 61 Forsyth Street, Atlanta, Georgia 30303; phone 
number (404) 562-8082; email: <a href="/cdn-cgi/l/email-protection#307c55585d515e5e1e67515455705540511e575f46"><span class="__cf_email__" data-cfemail="99d5fcf1f4f8f7f7b7cef8fdfcd9fce9f8b7fef6ef">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: EPA proposed rulemaking on March 13, 2020, 
and re-released for further public review on May 22, 2020 (85 FR 14622 
and 85 FR 31133), which was a proposal to expand the size of the Port 
Everglades ODMDS. Additionally, EPA is releasing a Finding of No 
Significant Impact and a final Environmental Assessment (EA), pursuant 
to the National Environmental Policy Act, which are available in the 
docket for this action (Docket ID No. EPA-R04-OW-2020-0056). EPA's 
responses to comments received on the proposed rule and the draft EA 
are also available in the docket for this action.

I. Potentially Affected Persons

    Persons potentially affected by this action include those who seek 
or might seek permits or approval to dispose of

[[Page 38564]]

dredged material into ocean waters pursuant to the 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 Port Everglades, Florida. 
Currently, the U.S. Army Corps of Engineers (USACE) would be most 
affected by this action. Potentially affected categories and persons 
include:

------------------------------------------------------------------------
           Category            Examples of potentially regulated persons
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Federal Government...........  USACE 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 entity, please refer to the contact person listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

II. Background

a. History of Disposal Sites Offshore of Port Everglades, Florida

    There is currently one designated ODMDS off the coast of Port 
Everglades in Florida. The existing Port Everglades ODMDS is located 
three nautical miles offshore of Fort Lauderdale. EPA designated the 
Port Everglades ODMDS in 2005 with an area of 1.34 square nautical 
miles (nmi\2\).
    The USACE Jacksonville District and EPA Region 4 identified a need 
to either designate a new ODMDS or modify the existing Port Everglades 
ODMDS. The reasons for modifying the ocean disposal capacity are based 
on future dredged material capacity requirements, historical dredging 
volumes, estimates of dredging volumes for future proposed projects, 
and limited capacity of upland disposal in the area.
    EPA is expanding the existing Port Everglades ODMDS rather than 
designate a new site off the coast of Fort Lauderdale for ocean dumping 
of dredged material. The modification of the existing Port Everglades 
ODMDS for dredged material, however, does not mean that the USACE or 
the EPA has approved the use of the existing Port Everglades ODMDS or a 
modified Port Everglades ODMDS for open water disposal of dredged 
material from any specific project. Before any person can ocean dump 
dredged material at an ODMDS, EPA and the USACE must evaluate the 
project according to the ocean dumping regulatory criteria (40 CFR part 
227) and the USACE must issue a permit or other authorization document 
(e.g., contract specifications) for the transportation and disposal of 
dredged material and must attain concurrence from EPA. Under section 
103 of the MPRSA, the USACE is the Federal agency that initially 
determines whether to issue a permit authorizing the ocean disposal of 
dredged materials. In the case of Federal navigation projects, the 
USACE may implement the MPRSA directly in the Federal projects 
involving ocean disposal of dredged materials. The USACE relies on 
EPA's ocean dumping criteria when evaluating permit requests for (and 
implementing Federal projects involving) the transportation of dredged 
material for the purpose of dumping it into ocean waters. MPRSA permits 
and Federal projects involving ocean dumping of dredged material are 
subject to EPA review and concurrence under MPRSA 33 U.S.C. 1413(c). 
EPA may concur with or without conditions or decline to concur on the 
permit, i.e., non-concur. If EPA concurs with conditions, the final 
permit or authorization must include those conditions. If EPA declines 
to concur (non-concurs), the USACE cannot issue the permit for ocean 
dumping of dredged material or authorize the disposal. EPA's site 
modification is supported by a final Environmental Assessment (EA), 
which EPA previously provided for public notice as draft and is 
available in the docket for this action (Docket ID No. EPA-R04-OW-2020-
0056).

b. Location and Configuration of the Port Everglades ODMDS

    With this action, EPA expands the size of the Port Everglades 
ODMDS, which is at depths between -587 to -761 feet of water (-179 to -
232 meters). The ODMDS expansion increases the area of the existing 
Port Everglades ODMDS from approximately 1.34 nmi\2\ to 3.21 nmi\2\. 
The ODMDS is bounded by the coordinates listed below. The coordinates 
for the site are in North American Datum 83 (NAD 83):
Modified Port Everglades ODMDS
(A) 26[deg]08.750' N, 80[deg]01.000' W
(B) 26[deg]08.750' N, 80[deg]02.578' W
(C) 26[deg]06.500' N, 80[deg]02.578' W
(D) 26[deg]06.500' N, 80[deg]01.000' W

The Site Management and Monitoring Plan (SMMP) allows EPA to adaptively 
manage the site to maximize its capacity, minimize the potential for 
mounding and loss of fine sediments outside of the site, and minimize 
the potential for any long-term adverse effects to the marine 
environment.

c. Management and Monitoring of the Site

    The ODMDS is expected to receive dredged material from the Federal 
navigation project at Port Everglades Harbor, Florida, and dredged 
material from other applicants who obtain a permit for the disposal of 
dredged material at the ODMDS. All persons using the site shall comply 
with the conditions set forth in the most recent approved SMMP, which 
EPA (in conjunction with the USACE) specifically developed for the 
ODMDS. The SMMP includes management and monitoring provisions 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 includes 
provisions to avoid and minimize potential impacts to coral reefs 
present near Port Everglades. The SMMP for the ODMDS also addresses 
management of the site to ensure adverse mounding and dispersal of fine 
sediments does not occur and to ensure that disposal events minimize 
interference with other uses of ocean waters near the ODMDS.

d. MPRSA Criteria

    In evaluating the ODMDS, the EPA assessed the site according to the 
criteria of the MPRSA, with emphasis on the general and specific 
regulatory criteria of 40 CFR part 228, to determine whether the site 
designation satisfies those criteria. The EPA's EA provides an 
extensive evaluation of the criteria and other related factors for the 
modification of the ODMDS.
General Criteria (40 CFR 228.5)
    (a) Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or

[[Page 38565]]

shellfisheries, and regions of heavy commercial or recreational 
navigation (40 CFR 228.5(a)).
    Historically, an interim site located approximately 1.6 nautical 
miles from shore was used for ocean disposal of dredged material from 
Port Everglades Harbor but was discontinued in the 1980s due to the 
significant potential for adverse impacts from sediments to nearby 
coral reef resources. EPA designated the existing Port Everglades 
Harbor ODMDS in 2005 to fulfill the need for an EPA designated ODMDS 
near Port Everglades. The evaluation for the 2005 designation included 
considerations of potential interference with other activities in the 
marine environment including avoiding areas of existing critical 
fisheries or shellfisheries, and regions of heavy commercial or 
recreational navigation. EPA re-considered the evaluations from 2010 
through to the present time throughout the NEPA process.
    (b) 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 area will be used only for disposal of dredged material 
found to be suitable under the Ocean Dumping Regulations at 40 CFR 
parts 220 through 228. Based on the USACE and EPA sediment testing and 
evaluation procedures, disposal of dredged maintenance material and 
proposed new work material is not expected to have any long-term impact 
on water quality. The Port Everglades ODMDS is located sufficiently far 
from shore and fisheries resources to allow temporary water quality 
disturbances caused by disposal of dredged material to be reduced to 
ambient conditions before reaching any environmentally sensitive areas.
    (c) 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 ODMDS should provide 
sufficient long-term disposal capacity expected for anticipated 
dredging projects, while also permitting effective site management, 
site monitoring, and limiting environmental impacts to the surrounding 
area to the greatest extent practicable.
    Based on projected new work and maintenance dredging, and permitted 
dredged material disposal needs, EPA and the USACE estimated that the 
ODMDS should be approximately 3.21 nmi\2\ in size to meet the 
anticipated long-term disposal needs of the nearby area. Expanding the 
ODMDS to 3.21 nmi\2\ provides an estimated capacity of approximately 
6.7 million cubic yards, which is sufficient to manage future unknown 
disposal operations from public and private entities and provide 
protection of the marine environment at the ODMDS.
    When determining the size of the site, EPA considered the need to 
implement effective monitoring and surveillance programs to ensure that 
the environment of the site could be protected, and that navigational 
safety would not be compromised by the mounding of dredged material. 
EPA and the USACE have developed a SMMP for the site that, when 
implemented, will be used to determine if disposal at the site is 
significantly affecting the environment within the site or adjacent 
areas. 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 an assessment of the 
benthic community structure.
    (d) 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 Port Everglades ODMDS is beyond the edge of the continental 
shelf.
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 ODMDS is on the Florida Continental Slope, 3.3 nautical miles 
offshore of Fort Lauderdale, Florida. Water depths range from -179 to -
232 meters (-587 to -761 feet), with an average depth of 207 meters (-
678 feet). Sediments consist of sand with various mixtures of sand and 
silts with scattered rubble hardbottom. The EA contains a map of the 
ODMDS. The ODMDS remains fully off the continental shelf at a distance 
that is not expected to allow sediments to travel to nearby shore-
associated coral reef habitat.
    (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 ODMDS location was selected to avoid the presence of any 
exclusive breeding, spawning, nursery, feeding, or passage areas for 
adult or juvenile phases of living resources.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The center of the ODMDS is several miles from any beaches or 
amenity areas. No significant impacts to beaches or amenity areas 
associated with the Port Everglades ODMDS have been detected, and the 
expansion is not expected to affect that conclusion. The U.S. Navy 
maintains facilities south of the ODMDS, and EPA and the USACE 
consulted the Navy to verify that no impediments will exist with the 
expanded ODMDS.
    (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 suitable dredged material that meets the Ocean Dumping 
Criteria in 40 CFR parts 227 and 228 will be disposed in the ODMDS and 
only pursuant to a duly issued permit or authorization (e.g., contract 
specifications) for a Federal project with concurrence by EPA. Dredged 
materials dumped in this area will be primarily sand and rock with some 
fines that originate from the Port Everglades Harbor. Average yearly 
disposal of dredged maintenance material into the ODMDS is expected to 
be approximately 30,000 cubic yards and variable volumes of new work 
dredged material up to 6.7 million cubic yards. None of the material is 
packaged in any manner.
    Under section 103 of the MPRSA, the USACE is the Federal agency 
that initially determines whether to issue a permit authorizing the 
ocean disposal of dredged materials. In the case of Federal navigation 
projects involving ocean disposal of dredged materials, in lieu of the 
permit procedure, the USACE authorizes projects based upon application 
of the same criteria, and other factors to be evaluated, the same 
procedures, and the same requirements that apply to the issuance of 
permits. The USACE applies the EPA's ocean dumping criteria when 
evaluating permit requests for (and implementing Federal projects 
involving) the transportation of dredged material for the purpose of 
dumping it into ocean waters. MPRSA permits and Federal projects 
involving ocean dumping of dredged material are subject to EPA's review 
and concurrence. EPA may concur, with or without conditions, or

[[Page 38566]]

decline to concur on the request for concurrence on the suitability of 
dredged material for disposal in the ODMDS. If EPA concurs with 
conditions, the final permit or project authorization (e.g., contract 
specifications) must include those conditions. If EPA declines to 
concur (non-concurs) on an ocean dumping permit for dredged material, 
the USACE cannot issue the permit or authorize ocean dumping for the 
Federal project.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    EPA expects monitoring and surveillance at the ODMDS to be feasible 
and readily performed from ocean or regional class research vessels. 
Monitoring and surveillance are addressed in the SMMP. The area of the 
ODMDS has been surveyed and sampled in 2004, 2007 and 2014. EPA will 
monitor the site for physical, biological, and chemical attributes as 
well as for potential impacts. Bathymetric surveys will be conducted 
routinely, and benthic infauna and epibenthic organisms will be 
monitored, as described in the SMMP for the site.
    (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)).
    Current velocities vary throughout the water column and are subject 
to wind and the Florida current-based circulations which are generally 
northerly with eddies occurring that drive currents south. Currents 
measured at nearby sites are predominantly to the north or south on the 
order of 1-4 knots (50-200 centimeters per second).
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    Historic disposal of dredged material in the existing Port 
Everglades ODMDS has resulted in temporary increases in suspended 
sediment concentrations during disposal operations, burial of benthic 
organisms within the site, and slight changes in the abundance and 
composition of benthic assemblages. Short-term, long-term, and 
cumulative effects of dredged material disposal in the ODMDS would be 
similar to those for the previously designated site and are expected to 
be temporary and return to baseline over time.
    (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 transport of dredged material to the ODMDS will cause minor, 
short-term interferences with commercial and recreational boat traffic. 
during normal disposal operations. EPA has not identified an area of 
special scientific importance at or near the site. There are no 
aquaculture areas near the site. There may be recreational fishing in 
the area. The likelihood of direct interference with these activities, 
however, is low. The U.S. Navy, Fort Lauderdale Branch, Naval Surface 
Warfare Center range is located south of the ODMDS and the expansion of 
the ODMDS will not impair U.S. Navy operations in the area. The SMMP 
for the ODMDS contains provisions for corrective measures if potential 
adverse impacts to potential hardbottom habitat related to dredged 
material disposal are identified.
    (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 at the site is typical of the Florida coast. Water 
and sediment quality analyses conducted in the vicinity of the ODMDS 
and experience with historic disposal at the existing Port Everglades 
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 region.
    (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 ODMDS. Disposal of dredged material, as well as 
monitoring, has been ongoing for the past 14 years. Nuisance species 
have not been found. The dredged material to be disposed at the ODMDS 
is expected to be from similar locations to those dredged previously; 
therefore, it expected that any benthic organisms transported to the 
site would be relatively similar in nature to those already present.
    (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)).
    EPA conducted a survey of this site in 2013 to identify areas of 
potential hardbottom resources as well as any historical artifacts. The 
survey revealed the presence of only two anomalies that, when 
evaluated, were not indicative of potential historical or natural 
features. Probable wreckage from one modern sailing vessel was 
identified in the northeast corner of the site. Scattered rubble 
covering potential hardbottom habitat was identified scattered within 
the expanded footprint.
    The SMMP for the ODMDS contains measures to monitor potential 
identified hardbottom resources.

III. Environmental Statutory Review

a. National Environmental Policy Act

    EPA's primary voluntary NEPA document for expanding the existing 
Port Everglades ODMDS is the EA, prepared by EPA in cooperation with 
the USACE and issued for public review and comment as draft in January 
2020. Anyone desiring a copy of the EA may access it through the docket 
for this action (Docket ID No. EPA-R04-OW-2020-0056) or obtain a copy 
from the address given above. The draft EA issued in March 2020 amends 
the draft EA that was previously published for public review and 
comment in August 2013. Comments received on the March draft EA are 
provided in the Response to Comments document appended to the docket. 
The EA provides the threshold environmental review for modification of 
the ODMDS.
    The action discussed in the EA is the designation of an ODMDS 
offshore Port Everglades, Florida. The purpose of the action is to 
provide an environmentally acceptable option for the ocean disposal of 
dredged material. The reason for the ODMDS expansion is based primarily 
on demonstrated lack of capacity for ocean disposal of dredged material 
from the Port Everglades Harbor area including the upcoming Federal 
Navigation Project and any additional port projects into the future. 
The actual need for ocean disposal for particular, specific future 
projects, and the suitability of the material for ocean disposal, will 
be determined on a case-by-case basis as part of the USACE process for 
reviewing ocean disposal actions and a public review process for its 
own actions to ocean dump dredged material from Federal Projects. 
Subsequent proceedings to develop permits and terms of the 
authorization for Federal projects will include evaluation of disposal 
alternatives; the existence of a designated site merely provides an 
option for disposition of suitable material.
    EPA's EA discusses the reasons for expanding the ODMDS and examines 
ocean disposal site alternatives. The reasons to expand the existing 
Port Everglades ODMDS are based on: Future capacity modeling; potential 
movement of fine sediments estimated dredging volumes for proposed 
projects; and limited capacity of upland disposal facilities in the 
area. EPA considered other configurations for the expanded site but the 
other options were discarded due to potential for adverse

[[Page 38567]]

impacts to protected coral resources. The following three ocean 
disposal alternatives were considered in the EA.
No Action Alternative
    EPA identified the No Action Alternative as not modifying the size 
of the existing Port Everglades ODMDS. Implementation of this 
alternative would not have addressed the inadequate capacity at the 
existing ocean dump site to accommodate future ocean disposal of 
dredging projections. As a result, the No Action Alternative does not 
meet the action's purpose and need. However, EPA developed and 
evaluated the No Action Alternative as a basis to compare the effects 
of the other alternatives considered.
    Alternative 1: Modification of the existing Port Everglades ODMDS 
to encompass a 3.21 nmi\2\ area in a north-south orientation (Preferred 
Alternative).
    Modification of the existing Port Everglades ODMDS in a north-south 
orientation to encompass a 3.21 nmi\2\ area as described above is the 
environmentally and operationally preferred alternative and considered 
the most viable option. The existing Port Everglades ODMDS is 
relatively small and has a limited capacity. Modifying the existing 
Port Everglades ODMDS to increase capacity would accommodate the 
anticipated volumes of material projected for possible ocean disposal 
associated with: The congressionally authorized widening and deepening 
of the Port Everglades Harbor Federal navigation channel; 
congressionally authorized maintenance dredging; the Broward County 
sand bypass and navigation projects; and potential future private 
interests. It is the most feasible option based on containing dredged 
material from disposal operations while potentially affecting the least 
potential hardbottom habitat. A detailed justification for this 
preferred alternative is included in Section 2 in the EA.
    Alternative 2: Modification of the existing Port Everglades ODMDS 
to encompass a 2.89 nmi\2\ area in an east-west orientation.
    In order to inform viable options for expanding the existing site, 
EPA evaluated the data and information included in the September 2013 
Evaluation of Dredged Material Behavior at the Port Everglades Harbor 
Federal Project Ocean Dredged Material Disposal Site. EPA specifically 
considered the option of expanding the site in an east-west 
orientation. Although designating an expanded ODMDS in an east-west 
orientation would provide adequate site capacity, an east-west 
orientation had a greater level of risk for adverse impact to 
hardbottom habitat. As described in the EA, a site more adequately 
protective of potential hardbottom areas was selected as the preferred 
alternative with a north-south orientation (Alternative 1).

b. Magnuson-Stevens Act

    The USACE, in conjunction with EPA, submitted an essential fish 
habitat (EFH) assessment to the National Marine Fisheries Service 
(NMFS), pursuant to the Magnuson-Stevens Act, 16 U.S.C. 1855(b)(2). The 
USACE determined that the expansion of the existing Port Everglades 
ODMDS will not significantly affect managed species or EFH.
    On March 13, 2020, EPA issued a letter to NMFS that described the 
EPA's plans to conduct a Remotely Operated Vehicle (ROV) survey to 
supplement the available data to further characterize potential 
hardbottom geomorphology and biological community in the expanded 
footprint of the Port Everglades ODMDS. On March 19, 2020, NMFS 
responded by letter requesting that in the event results from the ROV 
survey indicate that significant hardbottom resources occur in the 
expanded ODMDS and use of the ODMDS will adversely affect those 
resources, EPA should re-initiate consultation. EPA is committed to 
continue working in close coordination with NMFS and will evaluate the 
ROV survey results when they become available. If significant 
hardbottom resources occur in the expanded ODMDS and the use of the 
ODMDS will adversely affect those resources, EPA will re-initiate 
consultation with NMFS pursuant to the Magnuson-Stephens Act.

c. Coastal Zone Management Act

    EPA evaluated site designations for consistency with the 
enforceable policies of Florida's approved coastal zone management 
program. On behalf of EPA, the USACE Jacksonville District documented 
that the site expansion is consistent with the Florida Coastal 
Management Program to the maximum extent practicable. The Florida 
Department of Environmental Protection issued Coastal Zone Consistency 
for the Port Everglades ODMDS on April 29, 2011. EPA further 
coordinated with Florida to determine whether any additional 
information has become available that may warrant changes to the 
State's 2011 determination. Florida responded, on April 17, 2020, that 
its position has not changed and that the action remains consistent to 
the maximum extent practicable with the enforceable policies of the 
State's approved coastal program.

d. Endangered Species Act

    The Endangered Species Act, as amended, 16 U.S.C. 1531 to 1544, 
requires Federal agencies to consult with NMFS and the U.S. Fish and 
Wildlife Service to ensure that any action authorized, funded, or 
carried out by the Federal agency is not likely to jeopardize the 
continued existence of any endangered species or threatened species or 
result in the destruction or adverse modification of any critical 
habitat. EPA has concluded consultation with NMFS, which provided a 
Biological Opinion for the South Atlantic District of the U.S. Army 
Corps of Engineers on March 7, 2014, applicable for the proposed 
expansion of the ODMDS. NMFS's Biological Opinion indicted that the 
expanded ODMDS will have no effect on federally-listed species or 
critical habitat. During a teleconference between EPA and NMFS on 
August 18, 2020, and in email correspondence issued on April 21, 2021, 
NMFS verified there are no changes to its Biological Opinion.
    The expansion of the Port Everglades ODMDS will have no effect on 
federally-listed terrestrial or freshwater species under the 
jurisdiction of the U.S. Fish and Wildlife Service.

e. National Historic Preservation Act

    The National Historic Preservation Act (NHPA), 16 U.S.C. 470 to 
470a-2, requires Federal agencies to consider 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). The depths of the ODMDS (greater than 700 feet 
depth) exclude potential habitation or resources related to human 
settlements. In a letter dated April 9, 2020, the Florida State 
Historic Preservation Office stated that no historic properties would 
be affected by the expansion of the ODMDS.

IV. Statutory and Executive Order Reviews

    This rule expands the area of the Port Everglades 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

[[Page 38568]]

subject to review under Executive Orders 12866 and 13563 (76 FR 3821, 
January 21, 2011).

b. Executive Order 13089: Coral Reef Protection

    This action considers Executive Order 13089 on Coral Reef 
Protection ``to preserve and protect the biodiversity, health, 
heritage, and social and economic value of U.S. coral reef ecosystems 
and the marine environment.'' The SMMP is designed to reduce potential 
impacts from sediments on corals from vessels during transit to the 
ODMDS.

c. 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 designation, does not 
require persons to obtain, maintain, retain, report, or publicly 
disclose information to or for a Federal agency.

d. Regulatory Flexibility Act

    The Regulatory Flexibility Act 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. After considering the economic impacts of this 
rule, EPA certifies that this action will not have a significant 
economic impact on a substantial number of small entities.

e. 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.

f. 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 EPA and State and 
local governments, EPA specifically solicited comments on this action 
from State and local officials.

g. 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 existing Port 
Everglades 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. The depths of the ODMDS (greater than 700 
feet depth) exclude potential habitation or resources related to human 
settlements. In addition, EPA sent notification of the Seminole Tribe 
of Florida and the Miccosukee Tribe of Indians of Florida regarding the 
proposed action to modify the Port Everglades ODMDS and received no 
comments. Thus, Executive Order 13175 does not apply to this action.

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

    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.

i. Executive Order 13211: Actions Concerning Regulations 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.

j. 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 Office of Management and Budget, explanations when the Agency 
decides not to use available and applicable voluntary consensus 
standards. This action includes environmental monitoring and 
measurement as described in EPA's SMMP. EPA will not require the use of 
specific, prescribed analytic methods for monitoring and managing the 
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.

k. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629) establishes Federal executive 
policy on environmental justice. Its main provision directs Federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. EPA determined that this rule will not have 
disproportionately high and adverse

[[Page 38569]]

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 has assessed the overall 
protectiveness of expanding the Port Everglades 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.

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. 1412 and 1418.

    Dated: July 13, 2021.
John Blevins,
Acting Regional Administrator, EPA Region 4.

    For the reasons set out in the preamble, 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)(22)(i) through 
(iii) and (vi) to read as follows:


Sec.  228.15   Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (22) * * *
    (i) Location: Corner Coordinates (NAD 1983) 26[deg]06.500', 
80[deg]01.000'; 26[deg]06.500', 80[deg]02.578'; 26[deg]08.750', 
80[deg]02.578'; 26[deg]08.750', 80[deg]01.000'.
    (ii) Size: Approximately 3.2 square nautical miles in size.
    (iii) Depth: Ranges from approximately 587 to 761 feet (179 to 232 
meters).
* * * * *
    (vi) Restrictions:
    (A) Disposal shall be limited to dredged material from the Port 
Everglades, Florida, area;
    (B) Disposal shall be limited to dredged material determined to be 
suitable for ocean disposal according to 40 CFR parts 227 and 228; and
    (C) Transportation and disposal shall comply with conditions and 
monitoring requirements set forth in the most recent approved Site 
Management and Monitoring Plan and conditions and monitoring 
requirements incorporated into the permit or Federal project 
authorization.
* * * * *
[FR Doc. 2021-15529 Filed 7-21-21; 8:45 am]
BILLING CODE 6560-50-P


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