Rule2021-15529
Ocean Dumping; Modification of an Ocean Dredged Material Disposal Site Offshore Port Everglades, Florida
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 22, 2021
Effective
August 23, 2021
Issuing agencies
Environmental Protection Agency
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 138 (Thursday, July 22, 2021)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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
<a href="http://www.regulations.gov">http://www.regulations.gov</a> 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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</html>Indexed from Federal Register on July 22, 2021.
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