Notice2024-23035
Issuance of a General Permit for Ocean Disposal of Marine Mammal and Sea Turtle Carcasses
Primary source
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Published
October 8, 2024
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to re- issue a general permit under the Marine Protection, Research and Sanctuaries Act (MPRSA) to authorize the transport of marine mammal and sea turtle carcasses from the United States and disposal of marine mammal and sea turtle carcasses in ocean waters. Permit authorization is available for any officer, employee, agent, department, agency, or instrumentality of Tribal, Federal, state, or local unit of government, as well as any Marine Life Health and Stranding Response Program (MLHSRP) Stranding Agreement Holder, and any Alaska Native, who already may take a marine mammal or sea turtle under the Endangered Species Act (ESA) and/or Marine Mammal Protection Act (MMPA). In 2017, the EPA issued a general permit for the ocean disposal of marine mammal carcasses to streamline MPRSA authorization and reduce burdens associated with case-by-case permitting. Permit re-issuance is necessary because the most recent permit expired on January 4, 2024. The EPA is not proposing substantive changes to the content of the recently expired general permit. The EPA invites public comment on all aspects of this proposed general permit.
Full Text
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<title>Federal Register, Volume 89 Issue 195 (Tuesday, October 8, 2024)</title>
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[Federal Register Volume 89, Number 195 (Tuesday, October 8, 2024)]
[Notices]
[Pages 81519-81527]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23035]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2023-0329; FRL-10681-01-OW]
Issuance of a General Permit for Ocean Disposal of Marine Mammal
and Sea Turtle Carcasses
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability of proposed general permit.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to re-
issue a general permit under the Marine Protection, Research and
Sanctuaries Act (MPRSA) to authorize the transport of marine mammal and
sea turtle carcasses from the United States and disposal of marine
mammal and sea turtle carcasses in ocean waters. Permit authorization
is available for any officer, employee, agent, department, agency, or
instrumentality of Tribal, Federal, state, or local unit of government,
as well as any Marine Life Health and Stranding Response Program
(MLHSRP) Stranding Agreement Holder, and any Alaska Native, who already
may take a marine mammal or sea turtle under the Endangered Species Act
(ESA) and/or Marine Mammal Protection Act (MMPA). In 2017, the EPA
issued a general permit for the ocean disposal of marine mammal
carcasses to streamline MPRSA authorization and reduce burdens
associated with case-by-case permitting. Permit re-issuance is
necessary because the most recent permit expired on January 4, 2024.
The EPA is not proposing substantive changes to the content of the
recently expired general permit. The EPA invites public comment on all
aspects of this proposed general permit.
DATES: Comments on this proposed general permit will be accepted until
December 9, 2024.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2023-0329, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania
Avenue NW, Washington, DC 20460.
<bullet> Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this proposed general permit. Comments received may be posted
without change to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal
information provided. For detailed instructions on sending comments,
see the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Cheryl Zulick, Freshwater and Marine
Regulatory Branch; Oceans, Wetlands, and Communities Division, Mail
Code 4504T, Environmental Protection Agency, 1200 Pennsylvania Avenue
NW, Washington, DC 20460; telephone (202) 566-0583; email address:
<a href="/cdn-cgi/l/email-protection#eb919e87828880c588838e999287ab8e9b8ac58c849d"><span class="__cf_email__" data-cfemail="f58f80999c969edb969d90878c99b5908594db929a83">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2023-
0329, at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Once submitted, comments cannot
be edited or removed from the docket. The Environmental Protection
Agency (EPA) may publish any comment received to its public docket. Do
not submit to EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any
information you consider to be Confidential Business Information (CBI),
Proprietary Business Information (PBI), or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. The EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e., on the web, cloud, or other file sharing system).
Please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a> for
additional submission methods; the full EPA public comment policy;
information about CBI, PBI, or multimedia submissions; and general
guidance on making effective comments.
I. General Information
A. Does this action apply to me?
The authorization proposed in this general permit is available for
any officer, employee, agent, department, agency, or instrumentality of
Tribal, Federal, state or local unit of government, as well as any
Marine Life Health and Stranding Response Program (MLHSRP), including
any Stranding Agreement Holder, and any Alaska Native, who already may
take a marine mammal under the Endangered Species Act (ESA) or Marine
Mammal Protection Act (MMPA), to transport from the United States and
dispose of a marine mammal or sea turtle carcass in ocean waters.
B. Does this action require the disposal of marine mammal or sea turtle
carcasses in ocean waters?
The proposed general permit does not require ocean disposal of
marine mammal or sea turtle carcasses; it merely authorizes ocean
disposal when there is a need for such disposals.
C. Why does the EPA permit ocean disposal of marine mammal and sea
turtle carcasses?
Unless expressly excluded from the Marine Protection, Research, and
[[Page 81520]]
Sanctuaries Act (MPRSA), the transportation and disposition of any
material in ocean waters, including marine mammal and sea turtle
carcasses, requires a permit under the MPRSA.
D. Why does this action require reporting?
Given the natural occurrence of marine mammal and sea turtle
carcasses in the marine environment, the disposal of marine mammal or
sea turtle carcasses into the ocean is not anticipated to have any
adverse effect on human health, fisheries resources, or marine
ecosystems. Under the MPRSA regulations (40 CFR 224.1 through 224.2),
each person dumping materials under a general permit must maintain
records of the physical and chemical characteristics of the material
dumped, the times and locations of the dumping, and any other
information required as a condition of the permit. Those records must
be reported to the EPA as required under the general permit.
Additionally, to meet the United States' international treaty
obligation for reporting under the London Convention, the EPA reports
information about disposals under this general permit, and all other
activities authorized by the MPRSA, annually to the International
Maritime Organization.
II. Federal Law and International Conventions
Unless expressly excluded from the MPRSA, the transportation for
the purpose of dumping and dumping of any material in ocean waters
requires authorization under the MPRSA. The MPRSA uses the term
``dumping,'' and that term is defined broadly to encompass the
disposition of material both for the purpose of disposal, including the
disposal of marine mammal or sea turtle carcasses at sea, and for
purposes other than disposal.
In the United States, the MPRSA implements the requirements of the
London Convention, the international treaty that protects the marine
environment from the dumping of wastes and other matter into the ocean.
Contracting Parties to the London Convention agreed to control dumping
by implementing regulatory programs to assess the need for, and the
potential impact of, dumping. The London Convention requires that
Contracting Parties issue a permit for the dumping of wastes and other
matter at sea and report, annually, on all permits issued and
monitoring activities undertaken. Under the MPRSA, the EPA establishes
general terms of authorization for the ocean disposal of marine mammal
and sea turtle carcasses, but other Federal laws are implicated.
The Marine Mammal Protection Act (MMPA), which is relevant for the
purposes of this permit, as explained later, regulates ``marine
mammals'' meaning any mammal that is morphologically adapted to the
marine environment (including sea otters and members of the orders
Sirenia, Pinnipedia, and Cetacea) or primarily inhabits the marine
environment (e.g., polar bears). The Marine Turtle Conservation Act
defines a sea turtle using the term ``marine turtle'', which means any
member of the family Cheloniidae or Dermochelyidae. Other than for
Alaska Natives with disposal needs when engaged in subsistence uses
recognized by the MMPA, the EPA does not anticipate that ocean disposal
will be necessary for marine mammal or sea turtle carcasses except in
unusual circumstances, such as but not limited to, beached and floating
marine mammal or sea turtle carcasses and mass strandings of marine
mammals or sea turtles resulting in mortalities. In those unusual
circumstances, ocean disposal may be necessary to protect human health,
for example, when other disposal options are not available.
Before 2017, the EPA permitted the ocean disposal of cetacean
(whales and related species) and pinniped (seals and related species)
carcasses on a case-by-case basis, with emergency permits. The EPA
issued a general permit for the ocean disposal of marine mammal
carcasses, which became effective in January 2017, to streamline MPRSA
authorization and reduce burdens associated with case-by-case
permitting. That general permit provided authorization from January 5,
2017, through January 4, 2024. Under the MPRSA, general permits may be
issued for a period no longer than seven years. By issuing the proposed
general permit, the general permit's authorization to transport marine
mammal and sea turtle carcasses for the purpose of disposal and to
dispose marine mammal and sea turtle carcasses in ocean waters would be
issued for another seven-year period. Since January 5, 2017, when the
first general permit for the ocean disposal of marine mammal carcasses
became effective, the EPA has authorized 32 marine mammal carcass
disposals in ocean waters under the general permit and an additional 43
marine mammal carcass disposals using emergency permits. The proposed
permit would avoid the need for future emergency permitting for marine
mammal or sea turtle carcasses.
Federal laws providing protection and conservation of marine
mammals and sea turtles include the MMPA, the ESA, the Marine Turtle
Conservation Act, the Whaling Convention Act (WCA), the Fur Seal Act,
and international conventions, including the Inter-American Convention
for the Protection and Conservation of Sea Turtles, the International
Convention for the Regulation of Whaling, which established the
International Whaling Commission (IWC), and the Convention on
International Trade in Endangered Species of Wild Fauna and Flora.
Although this proposed general permit applies only to marine mammal or
sea turtle carcasses, certain international regulations are relevant.
The United States is a party to the IWC and IWC regulations are self-
implementing. IWC regulations recognize indigenous or aboriginal
subsistence whaling. As relevant to subsistence whaling in the United
States, the IWC sets catch limits for the Western Arctic stock of
bowhead whales based upon the needs of subsistence fishing in Alaska
villages. The hunt is managed cooperatively by the National Marine
Fisheries Service (NMFS) and the Alaska Eskimo Whaling Commission under
the WCA and the MMPA. As such, any Alaska Native, who already may take
a marine mammal under the MMPA and the ESA, are provided authority
under this proposed general permit should marine mammal carcasses need
to be transported and disposed at sea.
The other relevant Federal program under the MMPA and the ESA is
implemented by NMFS. MLHSRP Stranding Agreement Holders are provided
authority under this proposed general permit because Stranding
Agreement Holders are authorized to take marine mammals subject to the
provisions of the MMPA (16 U.S.C. 1361 et seq.) and the Fur Seal Act of
1966, as amended (16 U.S.C. 1151 et seq.). MLHSRP Stranding Agreement
Holders are provided authority under this proposed general permit
because Stranding Agreement Holders also are authorized to take sea
turtles subject to the provisions of the ESA (16 U.S.C. 1531 et seq.)
and the implementing regulations governing the taking, importing, and
exporting of endangered and threatened marine species and designated
critical habitat (50 CFR parts 222 through 226). As such, MLHSRP
Stranding Agreement Holders may have a need for ocean disposal should
stranded marine mammals or sea turtles die.
III. Hazard to Public Safety and Navigation
A floating carcass near shore (e.g., in a harbor) may pose a risk
to public
[[Page 81521]]
safety before making land fall to the extent it might attract predators
(e.g., sharks) to a recreation area in nearby waters or pose a hazard
to navigation. Per regulations promulgated by the U.S. Army Corps of
Engineers (USACE), at 33 CFR 245.20, the determination of a navigation
hazard is made jointly by the USACE and the U.S. Coast Guard (USCG). If
such a determination is made, the USACE determines appropriate remedial
action as described in USACE regulations at 33 CFR 245.25, which may
include removal of the carcass(es). MPRSA authorization to transport
the carcass for the purpose of ocean disposal would be available
through this proposed general permit if the navigation hazard removal
operation requires ocean disposal of such carcasses.
IV. Strandings and Beachings
Marine mammals or sea turtles that have died or have become sick or
injured can reach the ocean shoreline by a variety of mechanisms.
Possible mechanisms include: beaching, which involves a marine mammal
or sea turtle carcass being driven ashore by currents or winds;
stranding (single or multiple) of live marine mammal(s) or sea
turtle(s) that subsequently die; and transport on the bow of vessels.
In most stranding cases, the causes of marine mammal and sea turtle
strandings are unknown, but some causes may include the following:
disease, parasite infestation, harmful algal blooms, injuries due to
ship strikes, fishery entanglements, pollution exposure, unusual
weather or oceanographic events, trauma, and starvation. While many
marine mammals and sea turtles die every year, most carcasses never
reach the shore; rather, the carcasses are consumed by other organisms
or decompose sufficiently to sink to the ocean bottom where, depending
upon size, the carcass may form the basis of an ``organic fall'' (e.g.,
kelp, wood, and whale falls) ecosystem.
Stranding or beaching of marine mammals, sea turtles and/or marine
mammal or sea turtle carcasses may pose a risk to public health due to
the potential to transfer communicable diseases (e.g., brucellosis,
poxvirus, and mycobacteriosis) to the public. Marine carcasses present
a significant disposal concern not only because of their size but also
due to the frequency with which carcasses reach the shoreline. From
2006-2021, an average of 6,300 marine mammals stranded on United States
shorelines per year (NMFS, 2024). A large majority of marine mammals
that strand are either dead or die shortly after stranding (NMFS,
2022).
V. Disposal and Management Options
Generally, MLHSRP Stranding Agreement Holders are authorized to
respond to marine mammals and sea turtles that are found floating near
shore or beached, stranded along the shore. While Stranding Agreement
Holders do not and cannot respond to every stranded marine mammal and
sea turtle, when they do respond and deem disposal necessary, the
carcass must be disposed of properly. The MLHSRP has prepared a
programmatic Environmental Impact Statement that describes, among other
things, disposal and management options for carcasses of deceased
marine mammals and sea turtles.
For a dead marine mammal or sea turtle encountered, generally
available methods for carcass disposal and management fall into two
main categories: remove-from-the-environment and remain-in-the-
environment. Remove-from-the-environment methods entail moving the
carcass for disposal through controlled means and include disposing of
a carcass in a landfill, and incinerating, rendering, or composting the
carcass. Remain-in-the-environment methods involve leaving the marine
mammal or sea turtle carcass in the environment to decompose naturally
and include the following: allowing the carcass to remain and decompose
in place; burying the carcass in place; and transporting the carcass to
sea for ocean disposal. No one method is recommended for every carcass,
and several factors are necessarily considered to determine the best
disposal method for each carcass. Selection of a disposal method
depends on factors such as number and size of the animal(s), carcass
condition, the location, if chemicals were administered (including as
antibiotics, sedatives and/or chemical euthanasia agents), availability
of local resources, and logistics. Location considerations include
coastal geography, currents, proximity to areas used extensively by the
public, and Tribal, Federal, state, and/or local laws and regulations.
While other disposal methods are briefly discussed in background
materials associated with this general permit, the proposed general
permit only concerns the disposal method to tow or otherwise transport
marine mammal or sea turtle carcass(es) to sea for ocean disposal.
A. Remove-From-the-Environment Methods
One benefit of removing the carcass from the environment is
minimizing the likelihood of infectious disease transmission to humans,
domesticated animals, and wildlife. These methods either sequester the
carcass or destroy the carcass and any associated pathogens and should
be considered if the animal is suspected to have died from a disease
that can easily spread to human or other animal populations. Remove-
from-the-environment approaches can also be beneficial if the carcass
contains toxic chemicals, such as certain chemical euthanasia agents
(e.g., pentobarbital). Some of these methods effectively remove these
substances from the environment.
1. Disposal in a Licensed Landfill
The most widespread remove-from-the-environment method is disposal
in a landfill. With this method, the carcass is removed from the
beaching or stranding location and brought to a nearby landfill in a
lined or contained transport vehicle. Disposal in a licensed landfill
can minimize the impact of releasing any toxic substances contained in
the carcass, including euthanasia drugs (e.g., pentobarbital), because
the substances can be contained to one location. However, not all
licensed landfills may be able to accept animals that have been
euthanized with barbiturates. Therefore, authorities would contact
local landfills to ensure that the landfill can accept carcasses that
contain these drugs.
2. Incineration
Incineration is the process by which carcass tissues are broken
down by burning. Incineration destroys the physical integrity of a
carcass and the remaining ashes and hard parts (i.e., teeth, bones,
etc.) are buried in a landfill. Disposal via incineration can prevent
the spread of diseases, toxic materials, and veterinary drugs contained
in the carcass from entering the environment. Disposal via the
incineration method may require preplanning and consultation with the
local facility to fully understand the biological load that the
incineration facility can handle. Incineration can be very expensive.
Incineration facilities are not commonly found in all areas of the
United States and the availability of commercial or municipal
incinerators may be limited by the transportability of the carcass.
3. Rendering
Rendering is an activity in which the carcass is rapidly reduced
and recycled into new products. Rendering uses all parts of the animal
and often creates a protein by-product (e.g., protein meal) and a fat
by-product (e.g., tallow and grease). Disposal via rendering exposes
the carcass to high heat to eliminate
[[Page 81522]]
pathogens and prevent the spread of diseases. However, if a carcass
contains euthanasia drugs some facilities may not be able to accept or
process the carcasses depending on the drug. Disposal via rendering
requires preplanning and consultation with the rendering facility to
fully understand its policies for disposal of animals that were
chemically euthanized (e.g., pentobarbital). Rendering may be very
expensive. Rendering facilities are not commonly found in all areas of
the United States and the availability of rendering facilities may be
limited by the transportability of the carcass.
4. Composting
Composting marine mammal or sea turtle carcasses would involve
bringing a carcass to a commercial composting facility (which may or
may not require a state or local operating license) or to a site
designated specifically for carcass composting or composting in a
carcass digester. While composting is similar to disposal in a
landfill, it offers the added benefit that the nutrients contained
within the carcass are transformed into biologically available
material. Disposal via composting can minimize the impact of releasing
any pathogens or toxic substances contained in the carcass, including
euthanasia drugs (pentobarbital), because composted carcasses are
contained to one location. However, if a carcass contains certain
veterinary drugs some facilities may not be able to accept or process
the carcasses. Disposal via composting requires preplanning and
consultation with the local facility to fully understand their policies
for disposal of animals that were chemically euthanized and to ensure
that all carcass compost will be used in accordance with local and
state regulations on wildlife compost. Composting facilities are not
commonly found in all areas of the United States and the availability
of composting facilities may be limited by the transportability of the
carcass.
B. Remain-in-the-Environment Methods
The remain-in-environment methods of disposal involve leaving the
marine mammal or sea turtle carcass to naturally break down in the
same, or similar, area in which it was found. Natural decomposition (or
burial) may be used for both small and large marine mammals or sea
turtles and is often the most preferred method if the carcass size or
remoteness of the carcass location avoids logistical issues. Remain-in-
the-environment disposal methods should not be used for animals that
were chemically euthanized with drugs known to cause secondary
poisoning, such as pentobarbital.
1. In-Place Decomposition
Allowing a carcass to remain in place to decompose may be an
acceptable disposal method if the carcass does not pose a risk for
public health and animal health or result in unacceptable odor or
visual aesthetic impacts. In-place decomposition may also be the most
practical when the carcass is located in an area that is remote or
inaccessible to heavy equipment, thereby making other options, such as
burying in place or moving to a different disposal location,
infeasible.
2. In-Place Burial
In-place burial of a marine mammal or sea turtle carcass involves
burying the carcass in the same, or similar, location where the animal
was found and may be used as a disposal method, especially when the
carcass is located near population centers or near areas used for
recreational activities. In-place burial involves excavating a trough
above the high tide line, placing the carcass in the trench, and
covering the carcass with the excavated material. Burying the carcass
creates a barrier that minimizes the smell and sight of the decaying
carcass and reduces the likelihood of transmitting infectious diseases
and attracting scavengers. Utilizing the in-place burial disposal
method also depends on other factors such as the sediment substrate in
the area (e.g., fine sediments versus rocks and boulders), the
availability of appropriate excavation equipment, and potential
environmental damage (e.g., destruction of dunes, beach grass, or
nesting sites) caused by the transportation and operation of excavation
equipment.
3. Ocean Disposal
The ocean disposal method is the only method to which the proposed
general permit would apply and impose requirements. If a carcass cannot
be moved to a land-based disposal location, left above ground to decay,
or be buried in-place, it may be towed or moved offshore via another
transportation method and disposed in the ocean, provided that an
acceptable ocean disposal ``site'' or location can be identified. Ocean
disposal of a marine mammal or sea turtle carcass entails selection of
an appropriate location for the carcass to be released or sunk to
prevent the carcass from drifting or washing back onshore, becoming a
hazard to navigation, and/or damaging protected and sensitive habitats.
The carcass may float due to gas formation from decomposition. To
facilitate rapid sinking, opening the body cavity may be necessary. If
the carcass is to be sunk rather than released at the disposal site,
appropriate carcass preparation may be necessary (e.g., piercing the
body cavity, attaching weights, cement barriers, or chains) at the
ocean disposal site so that the carcass will not return to shore or
pose a hazard to navigation.
VI. Potential Consequences of Marine Mammal and Sea Turtle Carcass
Disposal in the Ocean and Why a General Permit Is Appropriate
Leaving a marine mammal or sea turtle carcass in the environment to
decompose (e.g., in-place decomposition or burial, ocean disposal)
provides many benefits to terrestrial, pelagic and benthic ecosystems
(NMFS, 2022). Marine mammal and sea turtle carcasses which become
stranded on shores and are left in-place to decompose or are buried are
an integral part of coastal ecosystems providing a key source of food
to scavengers and nutrients to the sediments, which may be utilized by
algae and plants potentially increasing landscape heterogeneity (Bui
2009; Laidre et al., 2018; Quaggiotto et al., 2022; Schultz et al.,
2022). Marine mammal and sea turtle carcasses that decompose while
floating in ocean waters provide an energy-rich source of food for
other marine animals, such as orcas and sharks (Leclerc et al., 2011;
Quaggiotto et al., 2022; Schultz et al., 2022; Tucker et al., 2019;
Whitehead and Reeves, 2005). Most marine mammal and sea turtle
carcasses sink to the seafloor and decompose naturally (Quaggiotto et
al., 2022; Schultz et al., 2022). Whale carcasses are a significant
source of carrion in the marine environment, representing a huge food
supply to scavengers and decomposers (Smith and Baco, 2003).
Whale falls, which occur naturally, are the most studied examples
of marine mammal carcass decomposition on the seafloor (Smith et al.,
2015). Whale falls are sites of intense and lasting enrichment of
organic material and sulfides on the seafloor which attract and sustain
diverse communities of vertebrate and invertebrate scavengers
(Quaggiotto et al., 2022). Most deep-sea benthic ecosystems are
organic-carbon limited and, in many cases, are dependent upon organic
matter from surface waters (Smith and Baco, 2003). A sunken carcass
provides a large load of organic carbon to the seafloor and enhances
the structural complexity of the seafloor, provides habitats for
chemosynthetic organisms and results in the establishment of
specialized
[[Page 81523]]
biological assemblages (Smith and Baco, 2003; Oldach et al., 2022;
Smith et al., 2015). Over 20 macrofaunal species are known to
exclusively inhabit the microenvironment formed by large organic falls
and over 30 other macrofaunal species are known to inhabit these sites
(Smith and Baco, 2003). The deep-sea benthic ecosystem response to
whale falls has been the subject of scientific study and several stages
of succession have been observed in the assemblages (Smith and Baco,
2003). The duration of these stages varies greatly with carcass size,
but generally occur as follows. The first stage is marked by the
formation of bathyal scavenger assemblages that include hagfishes,
sleeper sharks, crabs, and amphipods. During the second stage,
sediments surrounding the carcass, which have become enriched with
organic carbon, become colonized by high densities of worms (e.g.,
Dorvilleidae, Chrysopetalidae). Once the consumption of soft tissue is
complete, decomposition proceeds dominantly via anaerobic microbial
digestion of bone lipids. The efflux of sulfides from the bones may,
depending upon the size of the skeleton, provide for the formation of
chemoautotrophic assemblages, which marks the third stage of
succession. Chemoautotrophic assemblages formed typically consist of
organisms such as heterotrophic bacteria, mussels, snails, worms,
limpets, and amphipods.
Water and sediment quality may be negatively affected by at-sea
disposals of marine mammal carcasses because a carcass could release
contaminants into the water during decomposition (NMFS, 2022). Because
contaminants would dilute rapidly in the water or break down over time
in the tissues, the adverse impact would be minor and no different than
what would happen naturally had the carcass sank to the seafloor and
decomposed (NMFS, 2022).
The EPA has permitted numerous at-sea disposals of marine mammal
carcasses under the MPRSA. In 2020, the EPA conducted biological,
chemical, and physical monitoring of a location offshore where several
marine mammal carcasses had been sunk for disposal between 2009 and
2020, with the most recent disposal occurring six months prior to
monitoring. The purpose of this survey was to determine the impact the
decomposing whales may have caused to the immediate benthic community
and surrounding area. Monitoring results from a recently disposed
humpback whale carcass revealed that the carcass was reduced to whale
bones with minimal whale tissue remaining within six months and found
no measurable impact on sediment quality parameters (including total
organic carbon, grain size, and polychlorinated biphenyl concentration)
from decomposition.
Less research is available regarding at-sea decomposition of sea
turtle carcasses. When a sea turtle dies at sea, however, the carcass
typically sinks until decomposition gases cause the body to bloat and
float to the surface (Schultz et al., 2022). Partially submerged, sea
turtle carcasses may drift as they are transported by winds and
currents until it washes onshore or decomposes further and sinks to the
seafloor (Santos et al., 2018). Once settled on the seafloor, sea
turtle carcasses would decompose naturally (Schultz et al., 2022). The
EPA seeks to minimize the adverse impacts to the marine environment
from the materials used to sink carcasses through required consultation
by the permittee with the applicable EPA MPRSA Coordinator. Materials
that have been used for sinking marine mammal carcasses under the MPRSA
include jute rope, sandbags, concrete and steel cables that do not
cause adverse impact on water or sediment quality (NMFS, 2022).
Materials used effectively to do so include: (1) small volumes of sand
that do not cause an adverse effect on the seafloor substrate type; (2)
burlap sandbags and jute rope (used to sink smaller carcasses) because
they are non-plastic, especially biodegradable materials that would not
persist or cause an ingestion hazard (Araya-Schmidt and Queirolo, 2019;
Rautenbach et al., 2024; Unsworth et al., 2019; Wang et al., 2021;
Zhang et al., 2015); (3) jute rope used to tie the bags to the animal
that is the shortest length needed so to minimize the risk of
entanglement; and (4)) concrete keel blocks and steel cable used to
sink larger carcasses made from non-plastic, inert, materials that are
not anticipated to degrade the water quality of the seafloor or the
water column (Melchers et al., 2022; Moffat et al., 2017; NMFS, 2022;
Sun et al., 2022). Generally, marine mammal and sea turtle strandings
represent a minimum measure of actual at-sea mortality as scientific
studies have estimated that stranding events represent only 10-20% of
total mortalities in open ocean environments (Epperly et al., 1996;
Hart et al., 2006; Santos et al., 2018).
Considering the available scientific information on marine mammal
and sea turtle strandings, marine mammal and sea turtle in situ
decomposition and organic falls, the EPA finds that the potential
adverse effects of ocean disposal of marine mammal or sea turtle
carcasses are minimal for the following reasons: (1) except in rare
instances, most marine mammal or sea turtle carcasses would sink to and
decompose on the ocean floor rather than wash ashore; (2) the formation
of an organic fall is a naturally occurring phenomenon with no known
adverse environmental impacts; (3) the materials used for sinking
carcasses are chosen to minimize adverse environmental impacts; (4) the
site selection for sinking carcasses requires consultation to avoid
adverse environmental impacts; and (5) transporting a marine mammal or
sea turtle carcass to sea for ocean disposal, when other disposal
methods are not viable, presents a minimal perturbation to a naturally
occurring phenomenon.
The EPA's findings are consistent with the statutory considerations
applicable to permit issuance under the MPRSA because: (1) the general
permit requires consideration of land-based alternatives; (2) marine
mammal and sea turtle carcass disposals will not cause a significant
adverse effect on human health, fisheries resources, or marine
ecosystems; and (3) marine mammal and sea turtle carcass disposals will
not result in permanent adverse effects.
VII. Statutory and Regulatory Background
MPRSA Section 101, 33 U.S.C. 1411, prohibits the unpermitted
transportation of any material for the purpose of dumping it into ocean
waters. MPRSA Section 102(a)(1), 33 U.S.C. 1412(a), authorizes the EPA,
after notice and the opportunity for public hearings, to issue ocean
dumping permits. MPRSA Section 104(c), 33 U.S.C. 1414(c), authorizes
the EPA to issue general permits for the transportation for the purpose
of dumping, dumping, or both for specified materials, or classes of
materials, it determines will have a minimal adverse environmental
impact. The EPA regulations explain that EPA may issue general permits
for the dumping of materials that have a minimal adverse environmental
impact and are generally disposed of in small quantities, or emergency
permits for specific classes of materials that must be disposed of in
emergency situations (40 CFR 220.3(a) and (c)). The towing or other
method of transportation to move a marine mammal or sea turtle carcass
offshore by any person for disposal at sea constitutes transportation
of material for the purpose of dumping in ocean waters, and thus is
subject to the MPRSA. Because the material to be disposed will consist
of the carcass or carcasses, there will be no materials present that
are prohibited by 40 CFR 227.5.
[[Page 81524]]
VIII. Consideration of Alaska Natives Engaged in Subsistence Uses
Alaska Natives engaged in subsistence uses are not required to, but
may, transport and dispose of marine mammal carcasses in ocean waters.
However, Section B of the proposed general permit includes specific
considerations that are available to Alaska Native persons engaged in
subsistence uses. For purposes of this proposed general permit, the EPA
intends the term ``Alaska Native'' to be based on the statutory term
defined at 16 U.S.C. 1371(b) that refers to ``any Indian, Aleut, or
Eskimo who resides in Alaska and who dwells on the coast of the North
Pacific Ocean or the Arctic Ocean'' who takes a marine mammal for
subsistence purposes or for purposes of creating and selling authentic
native articles of handicrafts and clothing and provided such taking is
not in a wasteful manner. Section B of the proposed general permit
authorizes ocean disposal of marine mammal carcasses by an Alaska
Native engaged in subsistence uses for two reasons. First, marine
mammals are comparatively abundant and widely distributed throughout
coastal Alaska, and Alaska Natives depend upon these natural resources
for many customary and traditional uses. Collectively, the customary
and traditional uses (e.g., food, clothing) are referred to as
``subsistence uses.'' Alaska Native subsistence uses of marine mammals
have been ongoing for thousands of years. The United States has
recognized the importance of subsistence uses of marine mammals by
Alaska Natives through enactment of the MMPA, which expressly exempts
Alaska Natives engaged in subsistence uses from the general prohibition
on ``taking'' marine mammals under certain circumstances (16 U.S.C.
1371(b)). The MPRSA, by comparison, does not include a similar
exemption for the transport and disposal in ocean waters by Alaska
Natives when marine mammal carcasses (or parts thereof) have no further
use for subsistence purposes. Section B of the proposed general permit
accommodates the absence of an MPRSA exemption similar to the MMPA
exemption by facilitating authorization of ocean disposal of marine
mammal carcasses by Alaska Natives.
Second, many coastal communities of Alaska Natives who engage in
subsistence uses are located in remote locations and thus face a time-
critical public safety issue, for example, when a marine mammal carcass
washes ashore near a village or town, or a marine mammal is harvested
or salvaged, and the carcass is hauled ashore near a village or town.
Such carcasses may attract bears or other scavenger animals, which may
increase the risk of human injury or mortality. For these reasons,
there are specific provisions in the proposed general permit for Alaska
Natives engaged in subsistence activities to expedite the transport and
disposal of marine mammals in ocean waters, if necessary.
With these considerations in mind, the EPA's intent in reissuing
the Alaska Native-specific permit conditions (see Section B) is, to the
maximum extent allowable, to avoid unnecessary interference with long-
standing subsistence uses and traditional cultural practices, and to
recognize the unique circumstances of Alaska Natives engaged in
subsistence uses. In proposing this general permit, the EPA does not
intend to change, alter, or otherwise affect subsistence uses of marine
mammals by Alaska Natives engaged in subsistence uses. Section B sets
forth requirements designed to address these considerations while also
complying with international treaties, the MPRSA, and the EPA's
regulations at 40 CFR subchapter H. The primary differences between
Sections A and B relate to Federal agency concurrence, distance from
land requirements for ocean disposal, and reporting requirements.
To further clarify, the proposed general permit does not in any way
require ocean disposal of marine mammal carcasses; it merely authorizes
ocean disposal of marine mammal carcasses when there is a need for such
disposals. Additionally, the proposed general permit is not intended to
and does not regulate: any subsistence activities of Alaska Natives,
including hunting, harvesting, salvaging, hauling, dressing,
butchering, distribution, and consumption of marine mammals (or any
other species used for subsistence purposes); the transportation and
dumping of marine mammal carcasses on land, such as in whale boneyards
or in inland waters (i.e., waters that are landward of the baseline of
the territorial sea, such as rivers, lakes and certain enclosed bays or
harbors); or leaving marine mammal carcasses to decompose in place on
sea ice (or in a hole or lead in the sea ice), where there is no
transportation by vessel or other vehicle for the purpose of ocean
disposal. The purpose of this proposed general permit is to expedite
required authorizations the EPA manages for the ocean disposal of
marine mammal carcasses.
IX. Discussion
Considering the information presented in the previous section, the
EPA determines that the potential adverse environmental impacts of
marine mammal or sea turtle carcass disposal at sea are minimal and
that marine mammal and sea turtle carcasses often must be disposed of
to mitigate threats to public safety (e.g., recreational uses in nearby
waters), as well as risks of navigation hazards. As such, issuance of a
general permit for the transportation for the purpose of disposal and
the ocean disposal of marine mammal and sea turtle carcasses is
appropriate under the MPRSA.
Authorization under Section A of the proposed general permit is
available to Tribal, Federal, state, and local government officials and
employees acting in the course of official duties and to MLHSRP
Stranding Agreement Holders. Section A authorizes such persons to
transport and dispose of marine mammal or sea turtle carcasses in ocean
waters. Section A requires that each such permittee consult with the
MLHSRP of NMFS--and recommends that each such general permittee
consults with the applicable USCG District Office--prior to initiating
any ocean disposal activities with respect to a marine mammal or sea
turtle carcass. Permittees authorized under Section A would need to
consult with and obtain concurrence from the applicable EPA Regional
Office on selection of an ocean disposal site, which must be at a
location three miles seaward of the mean lower low water line (ordinary
low water mark) along the coast or a ``closing line'' across river
mouths and openings of bays as demarcated on nautical charts. Disposal
sites in the ocean waters of Puget Sound are not subject to the
distance from shore restriction, however, permittees would need to
consult with and obtain concurrence from EPA Region 10 on selection of
the site. The EPA has requested Clean Water Act Section 401
certification from the state of Washington and from Tribes in the Puget
Sound area for disposals in the ocean waters of Puget Sound that are
not subject to the distance from shore restriction. All permittees
authorized under Section A also need to submit a report to the
applicable EPA Regional Office on the ocean disposal activities after
the disposal.
Alaska Natives engaged in subsistence uses are not required to, but
may, transport and dispose of marine mammal carcasses in ocean waters.
When disposal in ocean waters is the selected disposal approach,
Section B of
[[Page 81525]]
the proposed general permit authorizes any Alaska Native engaged in
subsistence uses to transport and dispose of a marine mammal carcass in
ocean waters. Under Section B, the Alaska Native general permittee
selects an ocean disposal site sufficiently far offshore so that
currents and winds are not expected to return the carcass to shore and
the carcass is not expected to pose a hazard to navigation and
afterwards submits, on an annual basis, a report to EPA Region 10 on
ocean disposal activities conducted in the prior calendar year. Section
B does not require a statement of need for selecting ocean disposal nor
does it specify a distance requirement. The EPA has requested Clean
Water Act Section 401 certification from the state of Alaska for the
Section B authorization.
X. Statutory and Executive Order Reviews
A. Paperwork Reduction Act
The information collections under this general permit are covered
under the MPRSA Information Collection Request (ICR) that has been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act. The ICR document that the EPA
prepared for all MPRSA activities has been assigned EPA ICR number
0824.08.
Under section 104(e) of the MPRSA, 33 U.S.C. 1414(e) and
implementing regulations at 40 CFR 221.1-221.2, applicants for an MPRSA
permit must provide information that the EPA determines is necessary to
review and evaluate such application, for example, to ensure that ocean
dumping is appropriately regulated and will not harm human health or
the marine environment. To meet United States' reporting obligation
under the London Convention, the EPA reports some of this information
in the annual United States ocean dumping report, which is transmitted
to the International Maritime Organization for treaty compliance
purposes.
Respondents/affected entities: Any officer, employee, agent,
department, agency, or instrumentality of Tribal, Federal, state, or
local unit of government, as well as any MLHSRP Stranding Agreement
Holder, who disposes of a marine mammal or sea turtle carcass in ocean
waters and any Alaska Native engaged in subsistence uses who disposes
of a marine mammal carcass in ocean waters will be affected by this
proposed general permit. Under this proposed general permit,
respondents do not need to request permit authorization because the
general permit authorizes ocean disposal of a marine mammal or sea
turtle carcass by an eligible person.
Respondent's obligation to respond: Pursuant to regulations
implementing Section 104(e) of the MPRSA, 33 U.S.C. 1414(e), at 40 CFR
221.1-221.2, the EPA requires all ocean dumping permittees to supply
specified reporting information.
B. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action has Tribal implications. However, the proposed general
permit will neither impose substantial direct compliance costs on
federally recognized Tribal governments, nor preempt Tribal law. The
proposed general permit has Tribal implications because it may affect
traditional practices of some Tribes.
The EPA consulted with Tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes early in the process
of reviewing the current general permit and preparing to re-issue this
proposed general permit to allow them to have meaningful and timely
input into its development.
On February 14, 2023, the EPA emailed a consultation notification
letter with a consultation and coordination plan to all 574 federally
recognized Tribes, notifying them of this upcoming action and inviting
Tribal leaders and designated consultation representatives to
participate in the Tribal consultation and coordination process.
In early 2024, when the EPA was considering expanding the scope of
the general permit to include ocean waters of Puget Sound, it held an
additional Tribal coordination and consultation period for the Tribes
in the Puget Sound area that would be affected by any such expansion of
the permit's scope.
On April 2, 2024, the EPA emailed a consultation notification
letter with a consultation and coordination plan to federally
recognized Tribes in the Puget Sound area, notifying the Tribes of the
proposal to modify the scope of the permit and inviting Tribal leaders
and designated consultation representatives to participate in the
Tribal consultation and coordination process. A summary of the Tribal
consultation and coordination effort, the Tribal input received, and
how the EPA considered the input received may be found in the docket
for this action (Docket ID No. EPA-HQ-OW-2023-0329).
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Payo, A., Navarro, J., Brownlow, A., Deaville, R., Lambertucci,
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Don[aacute]zar, J.A., & Mole[oacute]n, M. (2022). Past, present and
future of the ecosystem services provided by cetacean carcasses.
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Santos, B.S., Friedrichs, M.A.M., Rose, S.A., Barco, S.G., & Kaplan,
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mortality using experimentally-calibrated, time and space-specific
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Barbour, J.E., Wang, Z., & Stacy, B.A. (2022). Point of No Return:
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(2019). Sowing the Seeds of Seagrass Recovery Using Hessian Bags.
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Stacey M. Jensen,
Director, Oceans, Wetlands, and Communities Division.
For the reasons stated above, the EPA proposes to issue the general
permit for the transportation and ocean disposal of marine mammal or
sea turtle carcasses as follows:
General Permit for the Transportation and Ocean Disposal of Marine
Mammal and Sea Turtle Carcasses
A. General Requirements for Governmental Entities and Stranding
Agreement Holders
Except as provided in Section B below, any officer, employee,
agent, department, agency, or instrumentality of Tribal, Federal,
state, or local unit of government, and any MLHSRP Stranding Agreement
Holder, is hereby granted a general permit to transport for the purpose
of disposal and dispose of marine mammal and sea turtle carcasses in
ocean waters subject to the following conditions:
1. The permittee shall consult with a Stranding Agreement Holder of
NMFS prior to initiating any disposal activities. Points of contact for
Stranding Agreement Holders are available at <a href="http://www.epa.gov/ocean-dumping/ocean-disposal-marine-mammal-carcasses">http://www.epa.gov/ocean-dumping/ocean-disposal-marine-mammal-carcasses</a>.
2. The permittee shall consult with and obtain written concurrence
(via email or letter) from the applicable EPA Regional Office on ocean
disposal site selection. A disposal site must be at a location three
miles seaward of the mean lower low water line (ordinary low water
mark) along the coast or ``closing lines'' across river mouths and
openings of bays as demarcated on nautical charts. Disposal sites in
the ocean waters of Puget Sound are not subject to the distance from
shore restrictions, however permittees would need to consult with and
obtain concurrence from EPA Region 10 on selection of the site. Because
the presence of a marine mammal or sea turtle carcass near human
habitation or recreation areas may pose a time-critical public safety
issue, the permittee may obtain concurrence via telephone from the
applicable EPA Regional Office provided that the permittee subsequently
obtains written concurrence (via email or letter). Points of contact at
the EPA are available at <a href="http://www.epa.gov/ocean-dumping/ocean-disposal-marine-mammal-carcasses">http://www.epa.gov/ocean-dumping/ocean-disposal-marine-mammal-carcasses</a>.
3. If a determination is made that the carcass must be sunk, rather
than released at the disposal site, the transportation and disposal of
materials necessary to ensure the sinking of the carcass are also
authorized for ocean dumping under this general permit. When materials
are to be used to sink the carcass, the permittee must first consult
with and obtain written concurrence (via email or letter) from the
applicable EPA Regional Office on the selection of materials. Any
materials described in 40 CFR 227.5 (prohibited materials) or 40 CFR
227.6 (constituents prohibited as other than trace amounts) shall not
be used. The transportation and dumping of any materials other than the
materials necessary to ensure the sinking of the carcass are not
authorized under this general permit and constitute a violation of the
MPRSA. Because the presence of a marine mammal or sea turtle carcass
near human habitation or recreation areas may pose a time-critical
public safety issue, the permittee may obtain concurrence via telephone
from the applicable EPA Regional Office provided that the permittee
subsequently obtains written concurrence (via email or letter).
4. The permittee shall submit a report on the ocean disposal
activities authorized by this general permit to the applicable EPA
Regional Office within 30 days after carcass disposal. This report
shall include:
a. A description of the carcass(es) disposed (e.g., species,
approximate length, general condition, floating or not);
b. The date and time of the disposal, the latitude and longitude of
the ocean disposal site, and the geodetic datum associated with the
coordinates of the disposal site. Latitude and longitude of the
disposal site shall be reported at the highest degree of accuracy
available on board the vessel that transported the carcass (e.g.,
onboard geographic position system technology);
c. The name, title, affiliation, and contact information of the
person in charge of the disposal operation and the person in charge of
the vessel or vehicle that transported the carcass (if different than
the person in charge of the disposal);
d. A statement of need and rationale for selecting ocean disposal
rather than other disposal options; and
[[Page 81527]]
5. The permittee shall immediately notify the EPA of any violation
of any condition of this general permit.
B. Requirements for Any Alaska Native Engaged in Subsistence Uses
Notwithstanding Section A, any Alaska Native engaged in subsistence
uses is hereby granted a general permit to transport for the purpose of
disposal and dispose of marine mammal carcasses in ocean waters subject
to the following conditions:
1. The permittee shall submit a report (via email or letter) on all
disposal activities authorized by this general permit that the
permittee has conducted in the prior calendar year. Reports shall be
submitted to EPA Region 10 within 30 days of the end of the calendar
year. Contact information for EPA Region 10 is available at <a href="http://www.epa.gov/ocean-dumping/ocean-disposal-marine-mammal-carcasses">http://www.epa.gov/ocean-dumping/ocean-disposal-marine-mammal-carcasses</a>. This
report shall include:
a. The number and type of carcasses disposed;
b. A description of the general vicinity in which the carcasses
were disposed; and
c. The name and contact information of the permittee.
2. Where ocean disposal is the selected approach, marine mammal
carcasses must be towed or otherwise transported to a site offshore
where, based on available information, which may include local or
traditional knowledge, currents and winds are not expected to return
the carcass to shore and the carcass is not expected to pose a hazard
to navigation.
[FR Doc. 2024-23035 Filed 10-7-24; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.