[Federal Register Volume 69, Number 146 (Friday, July 30, 2004)]
[Proposed Rules]
[Pages 45632-45639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-17375]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-7792-7]


Ocean Dumping; Proposed Designation of Sites Offshore Palm Beach 
Harbor, FL and Offshore Port Everglades Harbor, FL

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA today proposes to designate two Ocean Dredged Material 
Disposal Sites (ODMDSs) in the Atlantic Ocean offshore Southeast 
Florida, as EPA-approved ocean dumping sites for the disposal of 
suitable dredged material. One site will be located offshore Palm Beach 
Harbor, Florida and the other offshore Port Everglades Harbor, Florida. 
This proposed action is necessary to provide acceptable ocean disposal 
sites for consideration as an option for dredged material disposal 
projects in the vicinity of Palm Beach Harbor and Port Everglades 
Harbor. These proposed site designations are for an indefinite period 
of time, but the sites will be subject to continuing monitoring to 
insure that unacceptable adverse environmental impacts do not occur.

DATES: Comments must be received on or before September 13, 2004.

ADDRESSES: Submit your comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     E-mail: [email protected]
     Fax: (404) 562-9343
     Mail: Coastal Section, EPA Region 4, 61 Forsyth Street, 
SW, Atlanta, GA 30303. Attn: Christopher McArthur.
    The file supporting this proposed designation is available for 
public inspection at the following locations: EPA Region 4, Sam Nunn 
Atlanta Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303. 
Department of the Army, Jacksonville District Corps of Engineers, 701 
San Marco Blvd., Jacksonville, FL 32207.

FOR FURTHER INFORMATION CONTACT: Christopher J. McArthur, Ocean Dumping 
Program Coordinator, U.S. Environmental Protection Agency, Region 4, 
Coastal Section, 61 Forsyth Street, SW, Atlanta, GA 30303, telephone: 
(404)562-9391, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

A. Background

    Section 102(c) of the Marine Protection, Research, and Sanctuaries 
Act (MPRSA) of 1972, as amended, 33 U.S.C. 1401 et seq., gives the 
Administrator of EPA the authority to designate sites where ocean 
disposal may be permitted. On October 1, 1986, the Administrator 
delegated the authority to designate ocean disposal sites to the 
Regional Administrator of the Region in which the sites are located. 
These proposed designations are being made pursuant to that authority.
    The EPA Ocean Dumping Regulations promulgated under MPRSA (40 CFR 
Chapter I, Subchapter H, Sec.  228.4) state that ocean dumping sites 
will be designated by promulgation in this Part 228. These site 
designations are being published as proposed rulemaking in accordance 
with Sec.  228.4(e) of the Ocean Dumping Regulations, which permits the 
designation of ocean disposal sites for dredged material. Interested 
persons may participate in this proposed rulemaking by submitting 
written comments within 45 days of the date of this publication to the 
address given above.

B. Regulated Entities

    Entities potentially affected by this action are persons, 
organizations, or government bodies seeking to dispose of dredged 
material into ocean waters offshore Port Everglades Harbor and Palm 
Beach Harbor, Florida, under the MPRSA and its implementing 
regulations. This proposed rule is expected to be primarily of 
relevance to (a) parties seeking permits from the U.S. Army Corps of 
Engineers (COE) to transport dredged material for the purpose of 
disposal into ocean waters and (b) to the COE itself for its own 
dredged material disposal projects. Potentially regulated categories 
and

[[Page 45633]]

entities that may seek to use the proposed dredged material disposal 
sites may include:

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

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action, should the proposed rule become a final rule. To determine 
whether your organization is affected by this action, you should 
carefully consider whether your organization is subject to the 
requirement to obtain an MPRSA permit in accordance with Section 103 of 
the MPRSA and the applicable regulations at 40 CFR parts 220 and 225, 
and whether you wish to use the sites subject to today's proposal. EPA 
notes that nothing in this proposed rule alters the jurisdiction or 
authority of EPA or the types of entities regulated under the MPRSA. 
Questions regarding the applicability of this proposed rule to a 
particular entity should be directed to the contact person listed in 
the preceding FOR FURTHER INFORMATION CONTACT section.

C. EIS Development

    Section 102(2)(C) of the National Environmental Policy Act (NEPA) 
of 1969, as amended, 42 U.S.C. 4321 et seq., requires that federal 
agencies prepare an Environmental Impact Statement (EIS) on proposals 
for legislation and other major federal actions significantly affecting 
the quality of the human environment. The object of NEPA is to build 
into the Agency decision making process careful consideration of all 
environmental aspects of proposed actions. While NEPA does not apply to 
EPA activities of this type, EPA has voluntarily committed to prepare 
NEPA documents in connection with ocean disposal site designations. 
(See 63 FR 58045 [October 29, 1998], ``Notice of Policy and Procedures 
for Voluntary Preparation of National Environmental Policy Act (NEPA) 
Documents.'').
    EPA, in cooperation with the COE, has prepared a Draft EIS (DEIS) 
entitled ``Draft Environmental Impact Statement for Designation of the 
Palm Beach Harbor Ocean Dredged Material Disposal Site and the Port 
Everglades Harbor Ocean Dredged Material Disposal Site.'' On March 26, 
2004, the Notice of Availability (NOA) of the DEIS for public review 
and comment was published in the Federal Register (69 FR 15830 [March 
26,2004]). Anyone desiring a copy of the DEIS may obtain one from the 
addresses given above. The public comment period on the DEIS closed on 
May 10, 2004.
    EPA received 12 comment letters on the DEIS. There were six main 
concerns expressed in those letters: (1) There is an inadequate 
discussion of alternatives to ocean disposal; (2) the volume of 
material to be disposed and number of projects to use the sites is 
unclear; (3) the data on the benthic habitat within and near the 
proposed ODMDSs is inadequate; (4) updated information on cumulative 
impacts of activities in the area is needed; (5) potential adverse 
impacts to essential fish habitat and in particular the habitat of the 
blue-line tilefish have not been addressed; and (6) the potential of 
Florida Current spin-off eddies to transport disposed dredged material 
to important marine habitats has not been adequately addressed. No 
objections to the ODMDS locations were received and three letters of 
support for the need for the ODMDS were received. The concerns 
identified above will be addressed in the Final EIS.
    The DEIS also contained a Biological Assessment, prepared pursuant 
to the requirements of Section 7 of the Endangered Species Act (ESA), 
16 U.S.C. Section 1536, and the applicable implementing regulations. 
The Assessment set forth EPA's preliminary determination that the site 
designation of the Palm Beach Harbor ODMDS and Port Everglades Harbor 
ODMDS will not affect any threatened or endangered species under the 
purview of the National Marine Fisheries Service (NOAA Fisheries) and 
the U.S. Fish and Wildlife Service (FWS). EPA sought comments from NOAA 
Fisheries regarding the site designation and EPA's preliminary 
determination. In a May 24, 2004 letter, NOAA Fisheries concluded that 
adverse effects to whales are unlikely to occur from this project and 
that no effects to the shortnose sturgeon or smalltooth sawfish are 
likely to occur from the project.
    In addition, the DEIS contained an assessment of the potential 
impacts on Essential Fish Habitat (EFH). Pursuant to Section 305 of the 
Magnuson-Stevens Fishery Conservation and Management Act 16 U.S.C. 
Section 1855, EPA provided NOAA Fisheries a copy of the EFH Assessment 
thereby initiating official consultation. In a May 6, 2004 letter, NOAA 
Fisheries provided comments on the EFH Assessment and requested a 
revised EFH Assessment prior to providing EFH conservation 
recommendations. EPA will develop a revised EFH Assessment following 
NOAA Fisheries recommendations and include it as an appendix to the 
Final EIS.
    Pursuant to an Office of Water policy memorandum dated October 23, 
1989, EPA has evaluated the proposed site designations for consistency 
with the State of Florida's (the State) approved coastal management 
program. EPA has determined that the designation of the proposed sites 
is consistent to the maximum extent practicable with the State coastal 
management program, and submitted this determination to the State for 
review in accordance with EPA policy. In addition, as part of the NEPA 
process, EPA has consulted with the State regarding the effects of the 
dumping at the proposed sites on the State's coastal zone. EPA will 
take the State's comments into account in preparing the final EIS for 
the sites, in determining whether the proposed sites should be 
designated, and in determining whether restrictions or limitations 
should be placed on the use of the sites, if they are designated.
    In a letter dated June 7, 2004, the Florida Department of State 
agreed that it is unlikely that the proposed designations will affect 
any archaeological or historic resources listed, or eligible for 
listing, in the National Register of Historic Places, or otherwise of 
significance in accordance with the National Preservation Act of 1966 
(Public Law 89-6654), as amended.
    The proposed action discussed in the DEIS is the permanent 
designation for continuing use of ocean disposal sites offshore Palm 
Beach Harbor and Port Everglades Harbor, Florida. The purpose of the 
proposed action is to provide an environmentally acceptable option for 
the ocean disposal of dredged material. The need for the permanent 
designation

[[Page 45634]]

of the ODMDSs is based on a demonstrated COE need for ocean disposal of 
maintenance dredged material from the Federal navigation projects in 
the Palm Beach Harbor and Port Everglades Harbor area. The need for 
ocean disposal for these and other projects, and the suitability of the 
material for ocean disposal, will be determined on a case-by-case basis 
as part of the COE's process of issuing permits for ocean disposal for 
private/federal actions and a public review process for its own 
actions. This will include an evaluation of disposal alternatives.
    For the proposed ODMDSs, the COE and EPA would evaluate all federal 
dredged material disposal projects pursuant to the EPA criteria set 
forth in the Ocean Dumping Regulations (40 CFR 220-229) and the COE 
regulations (33 CFR 209.120 and 335-338). The COE issues Marine 
Protection, Research, and Sanctuaries Act (MPRSA) permits to applicants 
for the transport of dredged material intended for disposal after 
compliance with regulations is determined. EPA has the right to 
disapprove any ocean disposal project if, in its judgment, all 
provisions of MPRSA and the associated implementing regulations have 
not been met.
    The DEIS discusses the need for these site designations and 
examines ocean disposal site alternatives to the proposed actions. Non-
ocean disposal options have also been examined in the Disposal Area 
Studies for Palm Beach Harbor and Port Everglades Harbor, prepared by 
the COE and included as appendices to the DEIS. Alternatives to ocean 
disposal may include upland disposal within the port areas, or 
utilization of dredged material for beneficial use such as beach re-
nourishment. The studies concluded that upland disposal in the 
intensively developed port areas is not feasible. Undeveloped areas 
within cost-effective haul distances are environmentally valuable in 
their own right. Beach placement is limited to predominately sandy 
material.
    The following ocean disposal alternatives were evaluated in the 
DEIS:

1. Alternative Sites on the Continental Shelf

    In the Palm Beach Harbor and Port Everglades Harbor nearshore area, 
hardgrounds supporting coral and algal communities are concentrated on 
the continental shelf. Disposal operations on the shelf could adversely 
impact this reef habitat. Because the shelf is narrow, the transport of 
dredged materials for disposal beyond the shelf is both practical and 
economically feasible. Therefore, alternative sites on the continental 
shelf are not desirable.

2. Designated Interim Sites

    Two interim sites were designated for Palm Beach Harbor, one of 
which is located nearshore at the port entrance and the other is 
located approximately 2.9 nmi (4.5 km) offshore. Following discussions 
with the State of Florida, a zone of siting feasibility was 
established, eliminating from consideration any areas within 3 nautical 
miles of shore to avoid direct impact to natural reefs in the area. As 
a result, both Palm Beach Harbor interim sites were not considered 
further.
    The interim site for Port Everglades is located 1.7 nmi (3.2 km) 
offshore. A 1984 survey conducted by the EPA indicated that some damage 
to nearby inshore, hard bottom areas may have occurred due to the 
movement of fine grained material associated with disposed dredged 
material. In light of the survey findings, disposal at the Port 
Everglades interim site was discontinued and the site was eliminated 
from further consideration.

3. Alternative Sites Beyond the Continental Shelf

    Alternative sites beyond the continental shelf considered for Palm 
Beach Harbor include the 3 mile site, the 4.5 mile site and the 9 mile 
site. The 4.5 mile site is approximately one square mile in size and is 
located within the eastern portion of the 3 mile site. The 3 mile site 
is four square miles in size. The 3 mile site was dropped from further 
consideration in favor of the 4.5 mile site as it was determined that a 
site four square miles in size was not necessary at the depths at this 
location. The 9 mile site is 4 square miles in size. The deeper depths 
at the 9 mile site result in a larger disposal footprint, due to 
greater dispersion, necessitating a larger 4 square mile disposal site. 
Both the 4.5 mile site and the 9 mile site were considered in the DEIS.
    Alternative sites beyond the continental shelf considered for the 
Port Everglades Harbor include the 4 mile site and the 7 mile site. The 
4 mile site is approximately one square mile in size whereas the 7 mile 
site is two square miles in size. The deeper depths at the 7 mile site 
result in a larger disposal footprint necessitating a larger 4 square 
mile disposal site. Both the 4 mile site and the 7 mile site were 
considered in the DEIS.

4. No Action

    The No-Action Alternative would not provide acceptable EPA-
designated ocean disposal sites for use by the COE or other entities 
for the disposal of dredged material. Without final-designated disposal 
sites, the maintenance of the existing Federal Navigation Projects at 
Palm Beach Harbor and Port Everglades Harbor would be adversely 
impacted with subsequent effects upon the local and regional economies. 
Interim designated ODMDSs are not available. Alternative dredged 
material disposal methods would be required or the dredging and dredged 
material disposal discontinued. In the absence of an EPA designated 
ocean dredged material disposal site, the COE could select an 
alternative pursuant to Section 103 of MPRSA. In such cases, the ocean 
site selected for disposal would be evaluated according to the criteria 
specified in Section 102(a) of MPRSA and EPA's Ocean Dumping Regulation 
and Criteria 40 CFR part 228, and EPA concurrence is required. A site 
so selected can be used for five years without EPA designation, and can 
continue to be used for another five years under limited conditions. 
Accordingly, the No-Action alternative would not provide a long-term 
management option for dredged material disposal.

5. Preferred Alternative

    The preferred site near Palm Beach Harbor proposed for ODMDS 
designation is an area approximately 1 square nautical mile (nmi \2\) 
located east northeast of the Lake Worth Inlet and approximately 4.5 
nmi offshore. The preferred site at Port Everglades Harbor proposed for 
ODMDS designation is an area approximately 1 nmi \2\ located east 
northeast of Port Everglades and approximately 4 nmi offshore. These 
sites were found to comply with the criteria for evaluation of ocean 
disposal sites established in 40 CFR Sections 228.5 and 228.6 of EPA's 
Ocean Dumping Regulations. No significant impacts to critical resource 
areas are expected to result from designation of either of these sites. 
Similar types of impacts are expected from these sites as those located 
further offshore. However, these sites are expected to result in less 
areal impact as a result of their shallower depth. The preferred sites 
would require significantly less consumption of resources and would 
result in significantly less air emissions than the offshore sites. In 
addition, monitoring of the preferred sites would be less costly to the 
federal government and less difficult than the offshore sites.

[[Page 45635]]

Therefore, these sites were selected as the preferred alternatives.
    The DEIS presents the information needed to evaluate the 
suitability of ocean disposal areas for final designation use and is 
based on a series of disposal site environmental studies. The 
environmental studies and final designation are being conducted in 
accordance with the requirements of MPRSA, the Ocean Dumping 
Regulations, and other applicable Federal environmental legislation.

D. Proposed Site Designations

    The proposed site for Palm Beach Harbor is located east of Palm 
Beach, Florida, the western boundary being 4.3 nmi offshore. The 
proposed ODMDS occupies an area of about 1 nmi\2\, in the configuration 
of an approximate 1 nmi by 1 nmi square. Water depths within the area 
range from 525 to 625 feet. The coordinates of the Palm Beach Harbor 
ODMDS proposed for final designation are as follows:

26[deg]47'30'' N.                    79[deg]57'09'' W.;
26[deg]47'30'' N.                    79[deg]56'02'' W.;
26[deg]46'30'' N.                    79[deg]57'09'' W.; and
26[deg]46'30'' N.                    79[deg]56'02'' W.
 


Center coordinates are 26[deg]47'00'' N. and 79[deg]56'35'' W.
    The proposed site for Port Everglades Harbor is located east of 
Fort Lauderdale, Florida, the western boundary being 3.8 nmi offshore. 
The proposed ODMDS occupies an area of about 1 nmi \2\, in the 
configuration of an approximate 1 nmi by 1 nmi square. Water depths 
within the area range from 640 to 705 feet. The coordinates of the Port 
Everglades Harbor ODMDS proposed for final designation are as follows:

26[deg]07'30'' N.                    80[deg]02'00'' W.;
26[deg]07'30'' N.                    80[deg]01'00'' W.;
26[deg]06'30'' N.                    80[deg]02'00'' W.; and
26[deg]06'30'' N.                    80[deg]01'00'' W.
 


Center coordinates are 26[deg]07'00'' N. and 80[deg]01'30'' W. All 
coordinates utilize the North American Datum of 1983 (NAD83).

E. Analysis of Criteria Pursuant to the Ocean Dumping Act Regulatory 
Requirements

    Pursuant to the Ocean Dumping Regulations, 40 CFR 228.5, five 
general criteria are used in the selection and approval for continuing 
use of ocean disposal sites. Sites are selected so as to minimize 
interference with other marine activities, to prevent any temporary 
perturbations associated with the disposal from causing impacts outside 
the disposal site, and to permit effective monitoring to detect any 
adverse impacts at an early stage. Where feasible, locations off the 
Continental Shelf and other sites that have been historically used are 
to be chosen. If, at any time, disposal operations at a site cause 
unacceptable adverse impacts, further use of the site can be restricted 
or terminated by EPA. The proposed sites conform to the five general 
criteria.
    In addition to these general criteria in Sec. Sec.  228.5 and 228.6 
lists the eleven specific criteria used in evaluating a proposed 
disposal site to assure that the general criteria are met. Application 
of these eleven criteria constitutes an environmental assessment of the 
impact of disposal at the site. The characteristics of the proposed 
sites are reviewed below in terms of these eleven criteria (the DEIS 
may be consulted for additional information).

1. Geographical Position, Depth of Water, Bottom Topography, and 
Distance From Coast (40 CFR 228.6(a)(1))

    The boundary, center coordinates, water depth and distance from 
coast of the proposed sites are given above.

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 most active breeding and nursery areas are located in inshore 
waters, along adjacent beaches, or in nearshore reef areas. While 
breeding, spawning, and feeding activities may take place near the 
proposed ODMDSs, these activities are not believed to be confined to, 
or concentrated in, these areas. While many marine species may pass 
through the proposed ODMDSs, passage is not geographically restricted 
to these areas.

3. Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3))

    The proposed disposal sites for Palm Beach Harbor and Port 
Everglades are located approximately 4.5 nmi and 4.0 nmi offshore, 
respectively. The nearest beaches are located on the shorelines west of 
the sites. Because of the distance of the proposed sites from the 
shoreline and the expected localized effects at the disposal sites, it 
is unlikely that dredged material disposal at either of the proposed 
sites would adversely affect coastal beaches. Amenity areas in the 
vicinity of the proposed sites include artificial and natural reefs. 
The proposed disposal sites for Palm Beach Harbor and Port Everglades 
are located approximately 2.6 nmi and 3.0 nmi from the outer reef, 
respectively. Both proposed sites are located at least 2.3 nmi from the 
nearest artificial reef. Currents in the vicinity trend alongshore in a 
general north-south orientation. Modeling performed by the COE 
indicates that disposed material will not impact these natural areas.

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(a)(4))

    The only material to be placed at the proposed ODMDSs will be 
dredged material that meets the EPA Ocean Dumping Criteria in 40 CFR 
parts 220 through 229. No beach quality material is proposed to be 
transported to the proposed ODMDSs. The proposed sites are expected to 
be used for routine maintenance of the respective Harbor Projects. 
Annual average disposal volumes of 50,000 cubic yards of material are 
expected at each site. Dredged material from Port Everglades Harbor is 
expected to have a solids content of 60 to 70 percent solids by weight 
with a grain size of 38 to 5 percent of the grains finer than sand by 
weight. Dredged material from Palm Beach Harbor is expected to have 
solids content of 80 to 85 percent solids by weight with a grain size 
of 6 percent finer than sand. It has been demonstrated by the COE that 
the most cost effective method of dredging is clamshell/barge dredging 
for Palm Beach Harbor and hopper dredging for Port Everglades Harbor. 
Additional foreseen use of the Port Everglades Harbor site could be the 
Federal Port Everglades Deepening Project or use by the U.S. Navy in 
Port Everglades. The Deepening Project has not yet been authorized and 
the Navy project has not yet been permitted. The disposal of dredge 
material at the proposed sites will be conducted using a near 
instantaneous dumping type barge or scow.

5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))

    Surveillance and monitoring of the proposed sites is feasible. 
Survey vessels, aircraft overflights, or automated Geographic 
Positioning Systems (GPS) surveillance systems are feasible 
surveillance methods. The depths at these sites make conventional ODMDS 
monitoring techniques difficult to utilize. A draft Site Management and 
Monitoring Plan (SMMP) for each ODMDS has been developed and was 
included in an appendix in the DEIS. The SMMPs establish a sequence of 
monitoring surveys to be undertaken to determine any impacts resulting 
from disposal activities. The SMMPs may be modified for cause by EPA.

[[Page 45636]]

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))

    Prevailing currents parallel the coast and are generally oriented 
along a north-south axis. Northerly flow predominates. Mean surface 
currents range from 10 to 100 cm/sec depending on direction with 
maximum velocities up to 530 cm/sec. Current speeds are lower and 
current reversals more common in near-bottom waters. Mean velocities of 
20 cm/sec and maximum velocities of 130 cm/sec have been measured for 
near-bottom waters in the area. Dredged material dispersion studies 
conducted by the COE for both short (hours) and long-term (months) 
transport of material disposed at the proposed Palm Beach Harbor and 
Port Everglades Harbor sites indicate little possibility of disposed 
material affecting near-shore reefs in the areas of the disposal sites.

7. Existence and Effects of Current and Previous Discharges and Dumping 
in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7))

    There are no current or previous discharges within the proposed 
ODMDSs. There are two formerly designated interim-designated ODMDSs 
near Palm Beach Harbor. Use of these sites was discontinued by the 
implementation of the Water Resources Development Act of 1992. The 
disposal of 5.2 million cubic yards of dredged material from Palm Beach 
Harbor occurred between 1950 and 1983 in the interim sites. The 
characteristics of the dredged material were poorly graded sand with 
traces of shell fragments. The existing EPA interim-designated ODMDS at 
Port Everglades Harbor is located approximately 2.5 nmi west-southwest 
of the proposed site. The disposal of 220,000 cubic yards of dredged 
material occurred in this site between 1952 and 1982. The 
characteristics of the disposed dredged material were organic silt with 
some clay. A 1984 survey conducted by EPA indicated that some damage to 
nearby inshore, hard bottom areas may have occurred because of the 
movement of fine material associated with the disposal of dredged 
material at the site. In light of the survey findings, disposal at the 
Port Everglades interim site was discontinued.
    There are two wastewater ocean outfall discharges in the vicinity 
of each proposed ODMDS. The nearest outfall to either of the proposed 
sites is 11 miles. The effluent from wastewater outfalls has undergone 
secondary treatment and chlorination. Significant adverse impacts to 
the marine environment have not been documented in association with 
either of these offshore wastewater outfalls. Any effects from these 
discharges would be local and predominately in a north-south direction 
due to prevailing currents. Therefore, these discharges should not have 
any effect within the proposed sites.

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 infrequent use of the proposed sites should not significantly 
disrupt either commercial shipping or recreational boating. Commercial 
and recreational fishing activities are concentrated in inshore and 
nearshore waters. No mineral extraction, desalination, or mariculture 
activities occur in the immediate area. Scientific resources present 
near the Port Everglades Harbor site include the South Florida Ocean 
Measurement Center (SFOMC, formerly the South Florida Testing 
Facility). The SFOMC is located 1.5 nmi south of the proposed site. 
Interference with activities at the SFOMC is not expected.

9. The Existing Water Quality and Ecology of the Site as Determined by 
Available Data or by Trend Assessment or Baseline Surveys (40 CFR 
228.6(a)(9))

    Baseline surveys conducted for the Palm Beach Harbor and the Port 
Everglades Harbor ODMDSs show the water quality and other environmental 
characteristics of the proposed ODMDSs to be typical of the Atlantic 
Ocean. Salinity, dissolved oxygen, and transmissivity (water clarity) 
data indicated water masses over the sites were similar to water masses 
in open ocean waters and deviated little between sites. Macroinfaunal 
samples were dominated in numbers by annelids and arthropods. Water 
quality at the proposed ODMDSs is variable and is influenced by 
frequent Florida Current intrusions of offshore oceanic waters, and 
periodic upwelling of deep ocean waters. The proposed disposal sites 
lie on the continental slope in an area traversed by the western edge 
of the Florida Current. The location of the western edge of the current 
determines to a large extent whether waters at the site are 
predominantly coastal or oceanic. Frequent intrusions or eddies of the 
Florida Current transport oceanic waters over the continental shelf in 
the vicinity of the proposed ODMDSs. Periodic upwelling/downwelling 
events associated with wind stress also influence waters in the area.
    No critical habitat or unique ecological communities have been 
identified within or adjacent to the proposed sites.

10. Potentiality for the Development or Recruitment of Nuisance Species 
in the Disposal Site (40 CFR 228.6(a)(10))

    The disposal of dredged materials should not attract or promote the 
development of nuisance species. No nuisance species have been reported 
to occur at previously utilized disposal sites in the vicinity of 
either proposed sites.

11. Existence at or in Close Proximity to the Site of Any Significant 
Natural or Cultural Features of Historical Importance (40 CFR 
228.6(a)(11))

    Due to the proximity of proposed sites to entrance channels, the 
cultural resource that has the greatest potential for impact would be 
shipwrecks. Sidescan sonar surveys of the proposed sites were conducted 
which should have identified any potential shipwrecks. No such features 
were noted in sidescan sonar or video surveys of the proposed disposal 
sites. No natural or cultural features of historical importance have 
been identified at either site proposed for designation in this rule. 
The Florida Department of State Division of Historical Resources was 
consulted and they determined that it is unlikely that designation of 
the ODMDSs would affect archaeological or historical resources eligible 
for listing in the National Register of Historic Places, or otherwise 
of significance.

F. Site Management

    Site management of the proposed ODMDSs is the responsibility of EPA 
in cooperation with the COE. The COE issues permits to private 
applicants for ocean disposal; however, EPA Region 4 assumes overall 
responsibility for site management. Development of Site Management 
Plans is required by the MPRSA prior to final designation. Draft Site 
Management and Monitoring Plans (SMMPs) for the proposed ODMDS were 
developed as a part of the process of completing the DEIS. The plans 
provide procedures for both site management and for the monitoring of 
effects of disposal activities. The SMMPs are intended to be flexible 
and may be modified by the EPA for cause.

G. Proposed Action

    The DEIS concludes that the proposed sites may appropriately be 
designated

[[Page 45637]]

for use. The proposed sites are consistent with the 11 specific and 5 
general criteria used for site evaluation.
    The designation of the Palm Beach Harbor and Port Everglades Harbor 
sites as EPA-approved ODMDSs is being published as Proposed Rulemaking. 
Overall management of this site is the responsibility of the Regional 
Administrator of EPA Region 4.
    It should be emphasized that, if an ODMDS is designated, such a 
site designation does not constitute EPA's approval of actual disposal 
of material at sea. Before ocean disposal of dredged material at the 
site may commence, the COE must evaluate a permit application according 
to EPA's Ocean Dumping Criteria (40 CFR part 227) and authorize 
disposal. EPA has the right to disapprove the actual disposal if it 
determines that environmental concerns under MPRSA have not been met.

H. Statutory and Executive Order Reviews

1. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (A) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (B) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (C) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (D) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    EPA has determined that this proposed action does not meet the 
definition of a ``significant regulatory action'' under E.O. 12866 as 
described above and is therefore not subject to OMB review.

2. Paperwork Reduction Act

    This proposed rule would not impose an information collection 
burden under the provisions of the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501, et seq.) because it would not require persons to obtain, 
maintain, retain, report, or publicly disclose information to or for a 
Federal agency.

3. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996, (SBREFA), 5 U.S.C. 601 et 
seq.

    The RFA generally requires an agency 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. For the purposes of assessing the impacts of today's proposed 
rule on small entities, a small entity is defined as: (1) A small 
business based on the Small Business Administration's (SBA) size 
standards; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. EPA has determined that this action 
will not have a significant adverse economic impact on small entities 
because the proposed ocean disposal site designation does not regulate 
small entities. The site designations will only have the effect of 
providing a long term, environmentally acceptable disposal option for 
dredged material. This action will help to facilitate the maintenance 
of safe navigation on a continuing basis.

4. The Unfunded Mandates Reform Act and Executive Order 12875

    Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal Mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments to have 
meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    EPA has determined that this proposed action contains no Federal 
mandates (under the regulatory provisions of Title II of the UMRA) for 
State, local and tribal governments or the private sector. It imposes 
no new enforceable duty on any State, local or tribal governments or 
the private sector. Thus, the requirements of section 202 and section 
205 of the UMRA do not apply to this proposed rule. Similarly, EPA has 
also determined that this proposed action contains no regulatory 
requirements that might significantly or uniquely affect small 
government entities. Thus, the requirements of section 203 of the UMRA 
do not apply to this proposed rule.

5. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
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 the various levels of government, 
as specified in Executive Order 13132. This proposed rule addresses the 
designation of two

[[Page 45638]]

ocean disposal sites for the potential disposal of dredged materials. 
This proposed action neither creates new obligations nor alters 
existing authorizations of any State, local or governmental entities. 
Thus, Executive Order 13132 does not apply to this rule. However, EPA 
did consult with State and local government representatives in the 
development of the DEIS and through solicitation of comments on the 
DEIS. In addition, and consistent with Executive Order 13132 and EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.'' ``Policies that have Tribal 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian Tribes, on the relationship between the Federal government and 
the Indian Tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian Tribes.''
    The proposed action does not have Tribal implications. If 
finalized, the proposed action would not have substantial direct 
effects on Tribal governments, 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, as 
specified in Executive Order 13175. This proposed rule designates ocean 
dredged material disposal sites and does not establish any regulatory 
policy with tribal implications. EPA specifically solicits additional 
comment on this proposed rule from tribal officials. Thus, Executive 
Order 13175 does not apply to this rule.

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

    Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any 
rule that (1) is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe might have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health and 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency. This 
proposed rule is not an economically significant rule as defined under 
Executive Order 12866 and does not concern an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. Therefore, it is not subject to Executive Order 
13045.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it 
is not a significant regulatory action under Executive Order 12866.

9. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer Advancement Act 
of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note), directs EPA to use voluntary consensus standards in its 
regulatory activities unless doing so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This proposed 
rule does not involve technical standards. Therefore, EPA did not 
consider the use of any voluntary consensus standards.

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

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency must conduct its programs, 
policies, and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    No action from this proposed rule would have a disproportionately 
high and adverse human health and environmental effect on any 
particular segment of the population. In addition, this rule does not 
impose substantial direct compliance costs on those communities. 
Accordingly, the requirements of Executive Order 12898 do not apply.

List of Subjects in 40 CFR Part 228

    Environmental Protection, Water Pollution Control.

    Dated: July 12, 2004.
J.I. Palmer, Jr.,
Regional Administrator for Region 4.

    In consideration of the foregoing, Subchapter H of chapter I of 
title 40 is proposed to be amended as set forth below:

PART 228--[AMENDED]

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

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

    2. Section 228.14 is amended by removing and reserving paragraphs 
(h)(3), (h)(4), and (h)(5).
    3. Section 228.15 is amended by adding paragraphs (h)(21) and 
(h)(22) to read as follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (21) Palm Beach Harbor, FL Ocean Dredged Material Disposal Site.
    (i) Location (NAD83): 26[deg]47'30''N., 79[deg]57'09''W.; 
26[deg]47'30''N., 79[deg]56'02''W.; 26[deg]46'30''N., 79[deg]57'09''W.; 
26[deg]46'30''N., 79[deg]56'02''W. Center coordinates are 
26[deg]47'00''N and 79[deg]56'35''W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 525 to 625 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material. Disposal shall comply with conditions set forth in the most 
recent approved Site Management and Monitoring Plan.
    (22) Port Everglades Harbor, FL Ocean Dredged Material Disposal 
Site.

[[Page 45639]]

    (i) Location (NAD83): 26[deg]07'30''N., 80[deg]02'00''W.; 
26[deg]07'30''N., 80[deg]01'00''W.; 26[deg]06'30''N., 80[deg]02'00''W.; 
26[deg]06'30''N., 80[deg]01'00''W. Center coordinates are 
26[deg]07'00''N and 80[deg]01'30''W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 640 to 705 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material. Disposal shall comply with conditions set forth in the most 
recent approved Site Management and Monitoring Plan.
* * * * *
[FR Doc. 04-17375 Filed 7-29-04; 8:45 am]
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