[Federal Register Volume 73, Number 228 (Tuesday, November 25, 2008)]
[Proposed Rules]
[Pages 71575-71583]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27967]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R10-OW-2008-0826; FRL-8744-8]


Ocean Dumping; Designation of Ocean Dredged Material Disposal 
Sites Offshore of the Umpqua River, OR

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed Rule.

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SUMMARY: EPA is withdrawing an earlier proposal to designate an ocean 
dredged material disposal site near the mouth of the Umpqua River, 
Oregon, and is proposing to designate two new ocean dredged material 
disposal sites located offshore of the Umpqua River, Oregon. EPA's 
proposed rule was published at 56 FR 49858 (October 2, 1991). Changes 
since that time to the single site EPA proposed, as well as changes to 
the ocean dumping program, including changes to the Marine Protection, 
Research, and Sanctuaries Act, as amended (MPRSA), 33 U.S.C. 1401 to 
1445, give rise to EPA's decision to withdraw the October 2, 1991, 
proposal and to propose two new sites near the mouth of the Umpqua 
River. The new sites are needed primarily to serve the long-term need 
for a location to dispose of material dredged from the Umpqua River 
navigation channel, and to provide a location for the disposal of 
dredged material for persons who have received a permit for such 
disposal. The newly designated sites will be subject to ongoing 
monitoring and management to ensure continued protection of the marine 
environment.

DATES: Comments on this proposed rule must be received by December 26, 
2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R10-
OW-2008-0826 by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Mail: Jonathan Freedman, U.S. Environmental Protection 
Agency, Region 10, Office of Ecosystems, Tribal and Public Affairs 
(ETPA-083), Aquatic Resources Unit, 1200 Sixth Avenue, Suite 900, 
Seattle, Washington 98101.
    Instructions: Direct your comments to Docket ID No. EPA-R10-OW-
2008-0826. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through the Web site, http://www.regulations.gov, or through e-mail. The http://www.regulations.gov 
Web site is an ``anonymous access'' system, which means EPA will not 
know your identity or contact information unless you provide it in the 
body of your comment. If you send an e-mail comment directly to EPA 
without going through the Web site, http://www.regulations.gov, your e-
mail address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters or any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information may not be publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available either 
electronically in http://www.regulations.gov or in hard copy during 
normal business hours at the U.S. Environmental Protection Agency, 
Region 10, Library, 10th Floor, 1200 Sixth Avenue, Suite 900, Seattle, 
Washington 98101. For access to the documents at the Region 10 Library, 
contact the Region 10 Library Reference Desk at (206) 553-1289, between 
the hours of 9 a.m. and 11:30 a.m., and between the hours of 1 p.m. and 
4 p.m., Monday through Friday, excluding legal holidays, for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Jonathan Freedman, U.S. Environmental 
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public 
Affairs (ETPA-083), Aquatic Resources Unit, 1200 Sixth Avenue, Suite 
900, Seattle, Washington 98101, phone number: (206) 553-0266, e-mail: 
[email protected], or contact Jessica Winkler, U.S. 
Environmental Protection Agency, Region 10, Office of Ecosystems, 
Tribal and Public Affairs (ETPA-183), Aquatic Resources Unit, 1200 
Sixth Avenue, Suite 900, Seattle, Washington 98101, phone number: (206) 
553-7369, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

1. Potentially Affected Persons

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

------------------------------------------------------------------------
                                             Examples of potentially
                Category                        regulated persons
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Federal Government.....................  U.S. Army Corps of Engineers
                                          Civil Works Projects, and
                                          other Federal Agencies.
Industry and General Public............  Port Authorities, Marinas and
                                          Harbors, Shipyards and Marine
                                          Repair Facilities, Berth
                                          Owners.
State, local and tribal governments....  Governments owning and/or
                                          responsible for ports,
                                          harbors, and/or berths,
                                          Government agencies requiring
                                          disposal of dredged material
                                          associated with public works
                                          projects.
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[[Page 71576]]

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

2. Background

a. History of Disposal Sites Offshore of the Umpqua River, Oregon

    Two ocean dredged material disposal sites, an Interim Site and an 
Adjusted Site, have been used by the U.S. Army Corps of Engineers 
(Corps) for disposal of sediments dredged from the Umpqua River 
navigation project. The Interim Site was included in the list of 
approved ocean disposal sites for dredged material in the Federal 
Register in 1977 (42 FR 2461). A later realignment of the approach 
channel to the Umpqua River estuary placed the navigation channel over 
the Interim Site. In 1991 site, the Adjusted Site was selected by the 
Corps pursuant to the Corps' authority under Section 103 of the MPRSA. 
The use of the Interim Site was terminated at that time. Selection of 
the Adjusted Site was intended to reduce potential hazards associated 
with navigational conflicts in the channel and associated with mounding 
of dredged material at the Interim Site. The selection of the Adjusted 
Site was also intended to increase long-term disposal site capacity 
near the mouth of the Umpqua River. EPA concurred on the selection of 
the Adjusted Site and approved the Corps' request to continue to use 
the site through the end of the 2008 dredging season. The Adjusted Site 
is not a suitable candidate for designation by EPA pursuant to Section 
102 of the MPRSA because use of the Adjusted Site resulted in mounding 
that severely limited site capacity. In 1996, shoaling and breaking 
waves associated with mounding at the Adjusted Site were reported. 
Subsequently a site utilization study was conducted by the Corps in 
1998. That study found evidence of mounding sufficient to warrant 
serious concern regarding impact on the wave environment near the 
Umpqua River entrance channel. To address that concern the volume of 
dredged material placed at the Adjusted Site was reduced from an 
average annual volume of 188,000 cubic yards (cy) prior to 1999 to an 
average annual volume of 108,000 cy from 1999 to 2007. EPA determined 
that alternatives to the Adjusted Site would be needed for long-term 
disposal capacity near the mouth of the Umpqua River.

b. Location and Configuration of Proposed Umpqua River Ocean Dredged 
Material Disposal Sites

    Today, EPA withdraws the rule the Agency proposed on October 2, 
1991, at 56 FR 49858, to designate an Umpqua River site, and 
simultaneously proposes to designate two Umpqua River ocean dredged 
material sites to the north and south, respectively, of the existing 
Adjusted Site. The coordinates for the two proposed sites are listed 
below. The figure below shows the location of the Umpqua River ocean 
dredged material disposal sites (Umpqua River ODMD Sites or Sites) EPA 
proposes to designate today. The configuration of each Site is expected 
to allow dredged material disposed in shallower portions of each Site 
to naturally disperse into the littoral zone without creating mounding 
conditions that could contribute to adverse impacts to navigation. The 
proposed configuration will allow EPA to ensure that disposal of 
dredged material into the Sites will be managed so that as much 
material as possible is retained in the active littoral drift area to 
augment shoreline building processes.
    The coordinates for the two Umpqua River ODMD Sites, as proposed 
today, are, in North American Datum 83 (NAD 83):

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     Proposed North Umpqua ODMD Site                          Proposed South Umpqua ODMD Site
----------------------------------------------------------------------------------------------------------------
43[deg] 41' 23.09'' N, 124[deg] 14'       43[deg] 39' 32.31'' N, 124[deg] 14' 35.60'' W.
 20.28'' W.
43[deg] 41' 25.86'' N, 124[deg] 12'       43[deg] 39' 35.23'' N, 124[deg] 13' 11.01'' W.
 54.61'' W.
43[deg] 40' 43.62'' N, 124[deg] 14'       43[deg] 38' 53.08'' N, 124[deg] 14' 32.94'' W.
 17.85'' W.
43[deg] 40' 46.37'' N, 124[deg] 12'       43[deg] 38' 55.82'' N, 124[deg] 13' 08.36'' W.
 52.74'' W.
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    The two proposed Sites are situated in approximately 30 to 120 feet 
of water located to the north and south of the entrance to the Umpqua 
River on the southern Oregon Coast (see Figure 1). The recommended 
dimensions of each of the proposed ocean disposal sites are 6,300 by 
4,000 feet. Each disposal site will contain a drop zone, defined by a 
500-foot setback inscribed within all sides of the site boundary, 
reducing the permissible disposal area to a zone 5,300 feet long by 
3,000 feet wide. The drop zone will ensure that dredged material 
initially stays within each Site. Limited onshore transport of material 
disposed of at the proposed Sites is expected because of the nature of 
the prevailing currents and wave transport in the vicinity of the 
Sites. Net predicted material transport at the proposed Sites is 
southward in the summer months and northward during the remainder of 
the year. These transport mechanisms are expected to move material into 
the active littoral drift area and to significantly decrease or 
eliminate mounding as an issue for disposal of dredged material near 
the mouth of the Umpqua River.
BILLING CODE 6560-50-P

[[Page 71577]]

[GRAPHIC] [TIFF OMITTED] TP25NO08.000

BILLING CODE 6560-50-C

[[Page 71578]]

 c. Management and Monitoring of the Proposed Sites

    The proposed Umpqua River ODMD Sites are expected to receive 
sediments dredged by the Corps to maintain the federally authorized 
navigation project at the Umpqua River, Oregon and dredged material 
from other persons who have obtained a permit for the disposal of 
dredged material at the Sites. There are no existing Corps permits 
issued to other entities for use of the 103-Selected site (the Adjusted 
Site); therefore no permit modifications are required as a result of 
this action. All persons using the Sites are required to follow the 
Site Management and Monitoring Plan (SMMP) for the Umpqua River ODMD 
Sites. The SMMP is available as a draft document for review and comment 
by the public as of today's action proposing the designation of the 
Umpqua River ODMD Sites. The draft SMMP includes management and 
monitoring requirements to ensure that dredged materials disposed at 
the Sites are suitable for disposal, addresses management of the Sites 
to ensure mounding does not occur, and addresses the timing of disposal 
events to minimize interference with other uses of ocean waters in the 
vicinity of the proposed Sites.

d. MPRSA Criteria

    In proposing to designate the Umpqua River ODMD Sites, EPA assessed 
the proposed action against the criteria of the MPRSA, with particular 
emphasis on the general and specific regulatory criteria of 40 CFR Part 
228, to determine if designation of the proposed sites satisfies those 
criteria.
General Criteria (40 CFR 228.5)
    (1) Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or shellfisheries, and regions of heavy commercial 
or recreational navigation (40 CFR 228.5(a)).
    EPA's assessment of information available at the time of this 
proposed rule included a review of the potential for interference with 
navigation, recreation, shellfisheries, aquatic resources, commercial 
fisheries, protected geologic features, and cultural and/or 
historically significant areas. The proposed Sites are located away 
from the approach to the Umpqua River entrance channel and are unlikely 
to cause interference with navigation near the mouth of the Umpqua 
River. Commercial crab and salmon fishing have the potential to take 
place in the proposed Sites because of overlapping disposal and fishing 
seasons, but conflicts are not anticipated based on past history of 
fishing and disposal operations. Other recreational users, for example, 
surfers, boarders, and divers, may use the near-shore area in the 
vicinity of the proposed Sites. These recreationists are not expected 
to generate heavy recreational navigation use with the potential to 
conflict with disposal operations at the proposed South Site.
    (2) Sites must be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or undetectable contaminant concentrations or effects before reaching 
any beach, shoreline, marine sanctuary, or known geographically limited 
fishery or shellfishery (40 CFR 228.5(b)).
    Based on EPA's review of modeling, monitoring data, analysis of 
sediment quality, and history of use, no detectable contaminant 
concentrations or water quality effects, e.g., suspended solids, would 
be expected to reach any beach, shoreline, or other area outside of the 
proposed Sites. All dredged material proposed for disposal will be 
evaluated according to 40 CFR 227.13 and only suitable material can be 
disposed of at the site. Modeling work performed by the Corps 
demonstrates that water column turbidity would be expected to dissipate 
for an anticipated 97% of the coarser material within a few minutes of 
disposal, while the remaining 3% of the material, which would be 
classified as fine-grained, would be expected to dissipate within a 
half hour. Over time, some of the suitable disposed material would be 
expected to migrate into the littoral system, and potentially to 
coastal shorelines. Bottom movement of material, based on historic 
trends near the mouth of the Umpqua River, is expected to show a net 
movement to the north at the depth of the disposal sites with rapid 
dispersion after movement.
    (3) If Site designation studies show that any interim disposal 
sites do not meet the site selection criteria, use of such sites shall 
be terminated as soon as any alternate site can be designated (40 CFR 
228.5(c)).
    Use of the Interim Site near the proposed Umpqua River Sites was 
terminated upon selection of the 103-selected site, the Adjusted Site, 
by the Corps. Use of the Adjusted Site terminated at the end of the 
2008 dredging season. There are no selected or designated sites 
remaining near the mouth of the Umpqua River. The designation of the 
proposed Sites is necessary because no location for the disposal of 
dredged material exists in the vicinity of the proposed Sites at this 
time.
    (4) The sizes of disposal sites will be limited in order to 
localize for identification and control any immediate adverse impacts, 
and to permit the implementation of effective monitoring and 
surveillance to prevent adverse long-range impacts. Size, 
configuration, and location are to be determined as part of the 
disposal site evaluation (40 CFR 228.5(d)).
    EPA sized the proposed Sites to meet this criterion. The proposed 
Sites tend to be moderately dispersive in the near-shore area and less 
dispersive farther from shore. The Sites were designed to be large 
enough to minimize the potential for adverse mounding and to allow for 
a minimum twenty-year capacity. Effective monitoring of the proposed 
Sites is necessary and annual bathymetric surveys are anticipated for 
each Site. Those surveys are expected to be used to document the fate 
of the dredged material disposed at the Sites and to provide 
information for active management of the Sites.
    (5) EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites where 
historical disposal has occurred (40 CFR 228.5(e)).
    The proposed Sites would be located near where historic disposal 
has occurred with only minimal impact to the environment. Locations off 
the continental shelf in the Pacific Ocean as a general rule are 
inhabited by stable benthic and pelagic ecosystems on steeper gradients 
that are not well adapted to the type of frequent disturbance events 
that would occur if disposal of dredged material took place. Monitoring 
and surveillance of a site located beyond the edge of the continental 
shelf would be challenging and would present safety concerns for crew 
transporting the material to be disposed and monitoring the site. In 
addition, dredged material disposed at a location beyond the 
continental shelf would not be available to the littoral system. The 
loss of material would potentially have a negative impact the mass 
balance of the system with a resulting negative impact on erosion/
accretion patterns along this limited area of coastline near the Umpqua 
River.
Specific Criteria (40 CFR 228.6)
    (1) Geographical Position, Depth of Water, Bottom Topography and 
Distance from Coast (40 CFR 228.6(a)(1)).
    Based on the data available at the time of this proposal, the 
geographical position, including the depth of the

[[Page 71579]]

proposed Sites, bottom topography, and distance from the coastline in 
the vicinity of the proposed Sites, will not cause adverse effects to 
the marine environment. Based on EPA's understanding of the currents at 
the proposed Sites and their influence on the movement of material in 
the area, there is a high likelihood that much of the material disposed 
at the Sites will be transported to the littoral system. This movement 
is expected to allow for long-term disposal without creation of adverse 
mounding conditions at either of the proposed Sites.
    To help avoid adverse mounding at either of the proposed Sites, the 
site management strategy will include placing the majority of dredged 
material in shallower portions of the Sites closer to shore, where the 
material can quickly return to the regional littoral sediment system. 
Disposal runs will be managed to avoid multiple dumps in any location 
to further minimize mounding. Management is likely to include 
establishing ``cells'' along the nearshore boundary and assigning 
numbers of ``dumps'' to each cell to minimize material accumulation and 
avoid excessive or persistent mounding. Disposal will also be offset 
between the two proposed Sites to allow for maximum dispersal of 
material and minimal impact to each Site. In the shallower portion of 
the Sites, it is anticipated that disposal would still lead to the 
formation of temporary mounds on the bottom. Material placed in the 
deeper portions of the Sites (the outer, or seaward third) is expected 
to remain within Site boundaries for a longer time (a few years 
depending on depth and storm events) and could form more persistent, 
but still temporary, features.
    (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 proposed Sites are not located in exclusive breeding, spawning, 
nursery or feeding areas for adult or juvenile phases of living 
resources. Many near-shore pelagic organisms are found in the water 
column over the proposed Sites, but these organisms are found in the 
water column off most of the Pacific coast and are not unique to the 
proposed Sites. Benthic fauna common to near-shore, sandy, wave-
influenced regions that are found along the Pacific coast are also 
found at the proposed Sites, and are generally well-suited to survive 
in this dynamic environment and have been found to adapt well to 
natural and human perturbations. Benthic communities are expected to 
rapidly recolonize in the event of burying after disposal. Near the 
proposed Sites, a variety of pelagic and demersal fish species, as well 
as shellfish, are found. Anadromous salmonids are found at all seasons 
in the near-shore area off the mouth of the Umpqua River. Seals and sea 
lions also inhabit the lower Umpqua River and coastal area. Habitat in 
the near-shore area and shoreline of the Umpqua River entrance channel 
supports a variety of avian species. Whales and sea turtles are present 
seasonally offshore of the coastline in this area, but are generally 
observed further offshore than the proposed Sites. Modeling of the 
water column over the proposed Sites indicates that turbidity from a 
disposal event would be expected to dissipate rapidly and that 
avoidance behavior by any species in the proposed Sites, or in the 
surrounding area, at the time of a disposal event would be short-term.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The proposed Sites, although located in close proximity to the 
Umpqua River navigation channel, are located a sufficient distance 
offshore to avoid adverse impacts to beaches and other amenity areas. 
The local beaches support tourism, and recreational and commercial 
fishing. Transportation of dredges or barges to and from the proposed 
Sites to dispose of dredged material is expected to be coordinated so 
as to avoid disturbance of other activities near the Umpqua River 
entrance channel. Dredged material disposed of at the proposed Sites is 
expected to disperse into the littoral system, with a possible positive 
effect over time of reducing erosion of coastal beaches. The proposed 
North ODMD Site is 3,100 feet from the north jetty and 3,000 feet from 
the nearest beach. The proposed South ODMD Site is 2,400 feet from the 
south jetty and 2,100 feet from the nearest beach. There are no rocks 
or pinnacles in the vicinity of either site. The Oregon Dunes National 
Recreation Area, a part of the Siuslaw National Forest, is located on 
the beach adjacent to the proposed South ODMD Site, but does not extend 
into the water. The dunes in the Recreation Area are used for off-
highway vehicle use, hiking, photography, fishing, canoeing, horseback 
riding and camping. Use of the proposed South ODMD Site is not expected 
to interfere with any of those upland uses.
    The ocean area north and south of the south jetty is utilized for 
wave-dependent near shore recreation, such as surfing, diving, 
kayaking, boogie-boarding, skim boarding, and body surfing. It is 
possible that some of these uses may overlap with the proposed Sites, 
resulting in temporary usage conflict during disposal activities. The 
proposed Umpqua River ODMD Sites were sized and located in order to 
provide long-term capacity for the disposal of dredged material without 
causing any impacts to the wave environment at, or near, the proposed 
Sites. Site monitoring and adaptive management, as described the draft 
SMMP, will address possible future mounding. The use of the proposed 
Sites is not expected to change the wave conditions for any of the 
recreational uses referenced above.
    (4) Types and Quantities of Wastes Proposed to be Disposed of, and 
Proposed Methods of Release, including Methods of Packing the Waste, if 
any (40 CFR 228.6(a)(4)).
    Dredged material found suitable for ocean disposal pursuant to the 
regulatory criteria for dredged material or characterized by chemical 
and biological testing and found suitable for disposal into ocean 
waters will be the only material allowed to be disposed of at the 
proposed Sites. No material defined as ``waste'' under the MPRSA will 
be allowed to be disposed of at the proposed Sites. The dredged 
material expected to be disposed of at the Sites will be predominantly 
marine sand, far removed from known sources of contamination. The 
physical and chemical analyses of material from the Umpqua River 
Navigation Channel and boat basin access channel indicate both are 
suitable for open water disposal. The material from the boat basin 
access channel contains a higher percentage of fines than the material 
from the navigation channel, however, the material has been found 
suitable for disposal at the proposed Sites.
    With respect to proposed methods of releasing material at the 
proposed Sites, material will be released just below the surface from 
hopper dredges or dump barges. The dredges will be required to be under 
power and to slowly transit the disposal location during disposal. This 
method of release is expected to spread material at the Sites to 
minimize mounding and to minimize impacts to the benthic community and 
other species in the Sites at the time of a disposal event.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    Monitoring and surveillance at the proposed Sites are expected to 
be feasible and readily performed from small surface research vessels. 
The proposed Sites are accessible for bathymetric and side-scan sonar 
surveys. At a minimum, it is expected that annual bathymetric surveys 
will be

[[Page 71580]]

conducted at each of the proposed Sites to confirm that no unacceptable 
mounding is taking place within either Site or its immediate vicinity. 
Routine monitoring is expected to concentrate on examining how the 
distribution of material in the near-shore portions of the Sites is 
working to minimize mounding of material and to examine how the 
distribution of material augments littoral processes.
    (6) Dispersal, Horizontal Transport and Vertical Mixing 
Characteristics of the Area, Including Prevailing Current Direction and 
Velocity, if any (40 CFR 228.6(a)(6)).
    Dispersal, horizontal transport and vertical mixing characteristics 
of the area at and in the vicinity of the proposed Sites indicate that 
the marine sands and fluvial gravels from the Umpqua River distribute 
away from the river mouth rapidly. The beaches do not show significant 
accretion or loss, suggesting the system is in equilibrium and that 
littoral transport is in balance. The bottom current records suggest a 
bias in transport to the north. Fine grained material tends to remain 
in suspension and to experience rapid offshore transport compared to 
other sediment sizes. Sediment transport of sand-sized material or 
coarser tends to be moved directly as bedload but is occasionally 
suspended by wave action near the seafloor.
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    The two Sites proposed in today's action have not been used before 
for any type of disposal activity. The Interim and Adjusted Sites 
experienced significant adverse mounding which decreased capacity and 
suitability for designation. EPA's evaluation of historical data and 
modeling conducted by the Corps concluded that past disposal operations 
have not resulted in unacceptable environmental degradation. Future 
disposal of dredged material is not expected to result in unacceptable 
environmental degradation at the proposed Sites or in the vicinity of 
the proposed Sites. Although mounding is a potential effect, 
bathymetric surveys will be conducted at the proposed Sites. The draft 
SMMP includes requirements, including preventative steps, for managing 
the proposed Sites to address any potential mounding issues.
    (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)).
    Designation of the proposed Sites is not expected to interfere with 
shipping, fishing, recreation or other legitimate uses of the ocean. 
Disposals at the new Sites will be managed according to the SMMP to 
minimize interference with other legitimate uses of the ocean through 
careful timing and staggering of disposals in the near-shore portion of 
the proposed Sites. Commercial and recreational fishing and commercial 
navigation are the primary uses for which such timing will be needed. 
No plans for mineral extraction offshore of the Umpqua River are 
planned or proposed for this area. Wave-dependent near-shore 
recreation, such as surfing, diving, kayaking, boogie-boarding, skim 
boarding, and body surfing, may possibly overlap with the proposed 
Sites, resulting in temporary usage conflict during disposal 
activities. The proposed Sites will be managed to minimize such 
potential conflicts. The use of the proposed Sites is not expected to 
change the wave conditions for any of the recreational uses referenced 
above. Two wave energy projects are in the preliminary permitting 
phases near the proposed Sites. One wave energy project, referred to as 
the Reedsport Wave Energy Project, is proposed for installation 
approximately 5 miles north of the Umpqua River. The Reedsport Wave 
Energy Project is north of the proposed North Umpqua River ODMD Site 
and no conflicts between that project and the use of the North site are 
expected. A second project, the Douglas County Wave and Tidal Energy 
Project, is proposed to be located both in the ocean waters near the 
proposed Sites and on the south jetty structure at the mouth of the 
Umpqua River. Final dimensions and configuration for the Douglas County 
project are not yet known, therefore, it is unknown whether the 
proposed project would present any usage conflicts with the proposed 
Umpqua River ODMD Sites. Project proponents for both of these wave 
energy projects have received a preliminary permit and filed a notice 
of intent to file a license application with FERC. Fish and shellfish 
culture operations are not under consideration for the area. There are 
no known areas of scientific importance in the vicinity of the proposed 
Site.
    (9) The Existing Water Quality and Ecology of the Sites as 
Determined by Available Data or Trend Assessment of Baseline Surveys 
(40 CFR 228.6(a)(9)).
    EPA has not identified any adverse water quality impacts from ocean 
disposal of dredged material based on water and sediment quality 
analyses conducted in the study area of the proposed Sites and based on 
experience with past disposals near the mouth of the Umpqua River. 
Fisheries and benthic data show the ecology of the area to be that of a 
mobile sand community typical of the Oregon Coast.
    (10) Potentiality for the Development or Recruitment of Nuisance 
Species in the Disposal Site (40 CFR 228.6(a)(10)).
    Nuisance species, considered as any undesirable organism not 
previously existing at a location, have not been observed at, or in the 
vicinity of, the proposed Sites. Material expected to be disposed at 
the proposed Sites has been classified as uncontaminated marine sands 
similar to the sediment present at the Sites. Some fine-grained 
material, finer than natural background, may also be disposed. While 
this finer-grained material could have the potential to attract 
nuisance species to the proposed Sites, no such recruitment has 
occurred in the past at either the Interim or the Adjusted Site. The 
draft SMMP includes specific biological monitoring requirements, which 
will act to identify any nuisance species, and management requirements, 
allowing EPA to direct special studies and/or operational changes to 
address the issue if it arises.
    (11) Existence at or in Close Proximity to the Site of any 
Significant Natural or Cultural Feature of Historical Importance (40 
CFR 228.6(a)(11))
    No significant cultural features have been identified at, or in the 
vicinity of, the proposed Sites. As discussed further below, EPA 
coordinated with Oregon's State Historic Preservation Officer and with 
Tribes in the vicinity of the proposed Sites to identify any cultural 
features. None were identified. No shipwrecks were observed or 
documented within the proposed Sites or their immediate vicinity.

e. National Environmental Policy Act (NEPA); Magnuson-Stevens Act 
(MSA); Marine Mammal Protection Act (MMPA); Coastal Zone Management Act 
(CZMA); Endangered Species Act (ESA); National Historic Preservation 
Act (NHPA)

(1) NEPA
    Section 102 of the National Environmental Policy Act of 1969, as 
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires that Federal agencies 
prepare an Environmental Impact Statement (EIS) for major Federal 
actions significantly affecting the quality of the human environment. 
NEPA does not apply to EPA designations of ocean disposal sites under 
the MPRSA because the courts have exempted EPA's actions under the 
MPRSA from the procedural

[[Page 71581]]

requirements of NEPA through the functional equivalence doctrine. Under 
that doctrine, as EPA discussed most recently in the Agency's final 
rule revising the NEPA regulations, the courts reasoned that actions 
under the MPRSA are functionally equivalent to the analysis required 
under NEPA because such actions are undertaken with full consideration 
of environmental impacts and with opportunities for public involvement. 
See 72 FR 53653, September 19, 2007. EPA has, by policy, determined 
that the preparation of non-EIS NEPA documents for certain EPA 
regulatory actions, including actions under the MPRSA, is appropriate. 
EPA's ``Notice of Policy and Procedures for Voluntary Preparation of 
NEPA Documents,'' (Voluntary NEPA Policy), 63 FR 58045, (October 29, 
1998), sets out both the policy and procedures EPA uses when preparing 
such environmental review documents. EPA's 2007 revisions to 40 CFR 
Part 6 provided the framework EPA used to prepare the voluntary NEPA 
documents for this proposed action.
    EPA's primary voluntary NEPA document for designating the proposed 
Sites is the Draft Umpqua River, Oregon Ocean Dredged Material Disposal 
Sites Evaluation Study and Environmental Assessment, 2008 (EA), jointly 
prepared by EPA and the Corps. The EA and its Technical Appendices, 
which are part of the docket for today's proposed action, provide the 
threshold environmental review for the proposed designation of the two 
Sites. The information from the EA is used extensively, above, in the 
discussion of the ocean dumping criteria. Because EPA's Voluntary NEPA 
Policy does not require the preparation of an EIS for this proposed 
action, the EA prepared for designating the two proposed Sites is 
available for public comment and a final EA will be made available at 
the time of final rulemaking. Persons interested in commenting on this 
EA should do so at this time. There may not be another opportunity to 
comment.
(2) MSA and MMPA
    In the spring of 2008, EPA initiated consultation with the National 
Marine Fisheries Service (NMFS) concerning essential fish habitat and 
protected marine mammals. EPA prepared an essential fish habitat (EFH) 
assessment pursuant to Section 305(b), 16 U.S.C. 1855(b), of the 
Magnuson-Stevens Act, as amended (MSA), 16 U.S.C. 1801 to 1891d. NMFS 
is also reviewing EPA's EFH assessment and ESA Biological Assessment 
for purposes of the Marine Mammal Protection Act of 1972, as amended 
(MMPA), 16 U.S.C. 1361 to 1389. Consultation under both MMPA and MSA is 
still underway, but is expected to conclude before EPA takes any action 
to finalize today's proposed rule. Persons interested in commenting on 
this issue should do so at this time. There may not be another 
opportunity to comment.
(3) CZMA
    EPA initiated consultation with the state of Oregon on coastal zone 
management issues in June and July of 2008. EPA prepared a consistency 
determination for the Oregon Ocean and Coastal Management Program 
(OCMP) to meet the requirements of the Coastal Zone Management Act, as 
amended, (CZMA), 16 U.S.C. 1451 to 1465, and will submit that 
determination formally to the Oregon Department of Land Conservation 
and Development (DLCD) for review.
(4) ESA
    EPA initiated informal consultation with NMFS and the U.S. Fish and 
Wildlife Service on its action to designate the Umpqua River ODMD Sites 
beginning in the spring of 2008. EPA prepared a Biological Assessment 
to assess the potential effects of designating the two Umpqua River 
Sites on aquatic and wildlife species to determine whether or not its 
action might adversely affect species listed as endangered or 
threatened and/or adversely modify or destroy their designated critical 
habitat. EPA found that its action would not be likely to adversely 
affect aquatic or wildlife species listed pursuant to the Endangered 
Species Act, as amended (ESA), 16 U.S.C. 1531 to 1544, or the critical 
habitat of such species. EPA found that site designation does not have 
a direct impact on any of the identified ESA species but also found 
that indirect impacts associated with reasonably foreseeable future 
disposal activities had to be considered. These indirect impacts 
included a short-term increase in suspended solids and turbidity in the 
water column when dredged material was disposed at the new Sites and an 
accumulation of material on the ocean floor when material was disposed 
at the Sites. EPA concluded that while its action may affect ESA-listed 
species, the action would not be likely to adversely affect ESA-listed 
species or critical habitat.
    The U.S. Fish and Wildlife Service (USFWS) concurred with EPA's 
finding that EPA's action to designate the proposed Umpqua River ODMD 
Sites would not likely adversely affect listed species or critical 
habitat. Consultation with the USFWS for this proposed action is 
complete. The National Marine Fisheries Service (NMFS) is still 
reviewing the proposed action, but consultation with NMFS is expected 
to be completed before EPA takes any action to finalize today's 
proposed rule. EPA specifically requests that any comments concerning 
ESA be made at this time. This may be the only opportunity for 
interested persons to comment on this issue.
(5) NHPA
    EPA initiated consultation with the State of Oregon's Historic 
Preservation Officer (SHPO) to address National Historic Preservation 
Act, as amended (NHPA), 16 U.S.C. 470 to 470a-2, which requires Federal 
agencies to take into account the effect of their actions on districts, 
sites, buildings, structures, or objects, included in, or eligible for 
inclusion in the National Register. EPA determined that no historic 
properties were affected, or would be affected, by the proposed 
designation of the Sites. EPA did not find any historic properties 
within the geographic area of the proposed Sites. This determination 
was based on an extensive review of the National Register of Historic 
Districts in Oregon, the Oregon National Register list and an 
assessment of cultural resources near the proposed Sites. Side scan 
sonar of the proposed Sites did not reveal the presence of any 
shipwrecks or other cultural or historic properties. This consultation 
is expected to be completed before EPA takes any action to finalize 
today's proposed rule. EPA specifically requests that any comments 
concerning NHPA be made at this time. This may be the only opportunity 
for interested persons to comment on this issue.

3. Statutory and Executive Order Reviews

    This rule proposes to designate two ocean dredged material disposal 
sites pursuant to Section 102 of the MPRSA. This rule complies with 
applicable executive orders and statutory provisions as follows:

(1) Executive Order 12866

    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 Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more, or adversely 
affect in a material way, the economy, a sector of the economy,

[[Page 71582]]

productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs, or the 
rights and obligations of recipients thereof; or (4) raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order. EPA has 
determined that this proposed rule is not a ``significant regulatory 
action'' under the terms of Executive Order 12866 and is therefore not 
subject to OMB review.

(2) Paperwork Reduction Act

    This proposed action does not impose an information collection 
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., because this proposed rule does not establish or modify 
any information or recordkeeping requirements for the regulated 
community and only seeks to authorize the pre-existing requirements 
under State law and imposes no additional requirements beyond those 
imposed by State law.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing, and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in Title 40 of the CFR are listed in 40 CFR Part 9.

(3) Regulatory Flexibility

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

(4) Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 
1531 to 1538, for state, local, or tribal governments or the private 
sector. This action imposes no new enforceable duty on any State, 
local, or tribal governments or the private sector. Therefore, this 
action is not subject to the requirements of sections 202 or 205 of the 
UMRA. This action is also not subject to the requirements of section 
203 of the UMRA because it contains no regulatory requirements that 
might significantly or uniquely affect small government entities. Those 
entities are already subject to existing permitting requirements for 
the disposal of dredged material in ocean waters.

(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'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among various levels of government.'' This rule does 
not have federalism implications. It 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 various levels of government, as specified in 
Executive Order 13132. This rule proposes to designate two sites for 
the disposal of dredged material in ocean waters. Thus, Executive Order 
13132 does not apply to this rule. In the spirit of Executive Order 
13132, and consistent with 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

    This proposed rule does not have tribal implications, as specified 
in Executive Order 13175 because the designation of the two dredged 
material disposal Sites will not have a direct effect on Indian Tribes, 
on the relationship between the federal government and Indian Tribes, 
or on the distribution of power and responsibilities between the 
federal government and Indian tribes. Thus, Executive Order 13175 does 
not apply to this rule. Although Executive Order 13175 does not apply 
to this proposed rule, EPA consulted with tribal officials in the 
development of this rule, particularly as the proposed rule relates to 
potential impacts to historic or cultural resources. EPA specifically 
solicits additional comment on this proposed rule from tribal 
officials.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks. The proposed action concerns the designation of two Sites 
and would only have the effect of providing designated locations to use 
for ocean disposal of

[[Page 71583]]

dredged material pursuant to section 102(c) of the MPRSA.

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

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

(9) National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272), directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. The proposed 
action includes environmental monitoring and measurement as described 
in EPA's draft SMMP. EPA will not require the use of specific, 
prescribed analytic methods for monitoring and managing the proposed 
Sites once designated. Rather, the Agency plans to allow the use of any 
method, whether it constitutes a voluntary consensus standard or not, 
that meets the monitoring and measurement criteria discussed in the 
SMMP. EPA welcomes comments on this aspect of the proposed rulemaking 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

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

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA has determined that this proposed 
rule will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not affect the level of protection provided to human health or the 
environment. EPA has assessed the overall protectiveness of designating 
the proposed disposal Sites against the criteria established pursuant 
to the MPRSA to ensure that any adverse impact on the environment will 
be mitigated to the greatest extent practicable.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Authority: This action is issued under the authority of Section 
102 of the Marine Protection, Research, and Sanctuaries Act, as 
amended, 33 U.S.C. 1401, 1411, 1412.

    Dated: November 14, 2008.
Elin D. Miller,
Regional Administrator, Region 10.

PART 228--[AMENDED]

    For the reasons set out in the preamble, Chapter I of title 40 is 
proposed to be amended as set forth below:
    1. The authority citation for part 228 continues to read as 
follows:

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

    2. Section 228.15 is amended by adding paragraph (n)(7) to read as 
follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (n) * * *
    (7) Umpqua River, OR--North and South Dredged Material Disposal 
Sites.
    (i) North Umpqua River Site.
    (A) Location: 43[deg]41'23.09'' N, 124[deg]14''20.28'' W; 
43[deg]41'25.86'' N, 124[deg]12'54.61'' W; 43[deg]40'43.62'' N, 
124[deg]14'17.85'' W; 43[deg]40'46.37'' N, 124[deg]12'52.74'' W.
    (B) Size: Approximately 1.92 kilometers long and 1.22 kilometers 
wide, with a drop zone which is defined as a 500-foot setback inscribed 
within all sides of the site boundary, reducing the permissible 
disposal area to a zone 5,300 feet long by 3,000 feet wide.
    (C) Depth: Ranges from approximately 9 to 37 meters
    (D) Primary Use: Dredged material
    (E) Period of Use: Continuing Use
    (F) Restrictions: (1) Disposal shall be limited to dredged material 
determined to be suitable for ocean disposal according to 40 CFR 
227.13, from the Umpqua River navigation channel and adjacent areas;
    (2) Disposal shall be managed by the restrictions and requirements 
contained in the currently-approved Site Management and Monitoring Plan 
(SMMP);
    (3) Monitoring, as specified in the SMMP, is required.
    (ii) South Umpqua River Site
    (A) Location: 43[deg]39'32.31'' N, 124[deg]14'35.60'' W; 
43[deg]39'35.23'' N, 124[deg]13'11.01'' W; 43[deg]38'53.08'' N, 
124[deg]14'32.94'' W; 43[deg]38'55.82'' N, 124[deg]13'08.36'' W.
    (B) Size: Approximately 1.92 kilometers long and 1.22 kilometers 
wide, with a drop zone which is defined as a 500-foot setback inscribed 
within all sides of the site boundary, reducing the permissible 
disposal area to a zone 5,300 feet long by 3,000 feet wide.
    (C) Depth: Ranges from approximately 9 to 37 meters
    (D) Primary Use: Dredged material
    (E) Period of Use: Continuing Use
    (F) Restrictions: (1) Disposal shall be limited to dredged material 
determined to be suitable for ocean disposal according to 40 CFR 
227.13, from the Umpqua River navigation channel and adjacent areas;
    (2) Disposal shall be managed by the restrictions and requirements 
contained in the currently-approved Site Management and Monitoring Plan 
(SMMP);
    (3) Monitoring, as specified in the SMMP, is required.
* * * * *
 [FR Doc. E8-27967 Filed 11-24-08; 8:45 am]
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