[Federal Register Volume 74, Number 78 (Friday, April 24, 2009)]
[Rules and Regulations]
[Pages 18648-18656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9434]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R10-OW-2008-0826; FRL-8893-1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This action finalizes the designation of the Umpqua River 
ocean dredged material sites pursuant to the Marine Protection, 
Research and Sanctuaries Act, as amended (MPRSA). 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 specified in this 
rule and in the Site Management and Monitoring Plan, which is also 
finalized as part of this action. The monitoring and management 
requirements will help to ensure ongoing protection of the marine 
environment.

DATES: Effective Date: This final rule will be effective May 26, 2009.

ADDRESSES: For more information on this final rule, Docket ID No. EPA-
R10-OW-2008-0826 use one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for accessing the docket and materials related to this 
final rule.
     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.
    Publicly available docket materials are available either 
electronically at 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. to 11:30 a.m., and between the hours of 1 p.m. to 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-083), Aquatic Resources Unit, 1200 
Sixth Avenue, Suite 900, Seattle, Washington 98101, phone number: (206) 
553-7369, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: On November 25, 2008, EPA published a 
proposed rule at 73 FR 71575 to designate two new ocean dredged 
material disposal sites near the mouth of the Umpqua River, Oregon and 
to withdraw an earlier proposed rule to designate a single site. EPA 
received one comment on the proposed rule.

[[Page 18649]]

1. Potentially Affected Persons

    Persons potentially affected by this 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 action. 
Potentially affected categories and persons include:

------------------------------------------------------------------------
                                      Examples of potentially regulated
             Category                              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 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 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, were formerly used by the U.S. Army Corps of Engineers 
(Corps) for the disposal of sediments dredged from the Umpqua River 
navigation project. An ``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 status superseded by later statutory 
changes to the MPRSA. A realignment of the approach channel to the 
Umpqua River estuary re-routed the navigation channel over the Interim 
Site so that in 1991 an Adjusted Site was selected by the Corps 
pursuant to Section 103 of the MPRSA. That authority allows the Corps 
to select a site for disposal when a site has not been designated. 
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 Umpqua River Ocean Dredged Material 
Disposal Sites

    This action finalizes the withdrawal of the rule the Agency 
proposed on October 2, 1991, at 56 FR. 49858, to designate an Umpqua 
River site, and finalizes the designation of two Umpqua River ocean 
dredged material sites to the north and south, respectively, of the 
mouth of the Umpqua River. The coordinates for the two sites are listed 
below and the figure below shows the location of the two Umpqua River 
ocean dredged material disposal sites (Umpqua River ODMD Sites or 
Sites). The configuration of the Sites 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. This will allow 
EPA to manage the Sites to keep as much material disposed at the Sites 
as possible in the active littoral drift area to augment shoreline 
building processes.
    The coordinates for the two Umpqua River ODMD Sites are, in North 
American Datum 83 (NAD 83).


----------------------------------------------------------------------------------------------------------------
                 North Umpqua ODMD site                                   South Umpqua ODMD site
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43[deg]41[min]23.09[sec] N., 124[deg]14[min]20.28[sec]   43[deg]39[min]32.31[sec] N., 124[deg]14[min]35.60[sec]
 W.                                                       W.
43[deg]41[min]25.86[sec] N., 124[deg]12[min]54.61[sec]   43[deg]39[min]35.23[sec] N., 124[deg]13[min]11.01[sec]
 W.                                                       W.
43[deg]40[min]43.62[sec] N., 124[deg]14[min]17.85[sec]   43[deg]38[min]53.08[sec] N., 124[deg]14[min]32.94[sec]
 W.                                                       W.
43[deg]40[min]46.37[sec] N., 124[deg]12[min]52.74[sec]   43[deg]38[min]55.82[sec] N., 124[deg]13[min]08.36[sec]
 W.                                                       W.
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    The two 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 dimensions of each of the 
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 
boundary of each Site, 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.
BILLING CODE 6560-50-P

[[Page 18650]]

[GRAPHIC] [TIFF OMITTED] TR24AP09.053

BILLING CODE 6560-50-C

c. Management and Monitoring of the Sites

    The final 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. The ocean dumping regulations do not require a 
modification of any existing permits issued before this final 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 to the public as part of this action. The SMMP includes 
management and monitoring requirements to ensure that dredged materials 
disposed at the Sites are suitable for disposal in the ocean. The final 
SMMP also addresses management of the Sites to ensure adverse mounding 
does not occur and to ensure that disposal events are timed to minimize 
interference with other uses of ocean waters in the vicinity of the 
Sites.

d. MPRSA Criteria

    EPA assessed this action against the criteria of the MPRSA, with 
particular emphasis on the general and specific regulatory criteria of 
40 CFR part 228, to determine that the final site designations 
satisfied 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 reviewed the potential for the Sites to interfere with 
navigation, recreation, shellfisheries, aquatic resources, commercial 
fisheries, protected geologic features, and cultural and/or 
historically significant areas and found low potential for conflicts. 
The 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 Sites because of overlapping 
disposal and fishing seasons, but conflicts are not

[[Page 18651]]

anticipated based on the past history of fishing and disposal 
operations in this area. Other recreational users, for example, 
surfers, boarders, and divers, may use the near-shore area in the 
vicinity of the Sites. EPA does not expect disposal operations at the 
Sites to conflict with these recreationists.
    (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 
Sites. The drop zones at each of the Sites will help ensure this 
criterion is satisfied. All dredged material proposed for disposal will 
be evaluated according to the ocean dumping regulations at 40 CFR 
227.13 and guidance developed by EPA and the Corps. In general, dredged 
material which meets the criteria under 40 CFR 227.13(b) is deemed 
environmentally acceptable for ocean dumping without further testing. 
Dredged material which does not meet the criteria of 40 CFR 227.13(b) 
must be further tested as required by 40 CFR 227.13(c). Suitable 
material can be disposed at the Sites. Modeling work performed by the 
Corps at the Umpqua River demonstrates that water column turbidity, a 
temporary perturbation during disposal, would be expected to dissipate 
for an anticipated 97% of the coarser material within a few minutes of 
disposal. 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)).
    EPA's recent final rule at 73 FR 74983 (December 10, 2008) repealed 
obsolete regulations under the MPRSA regarding interim ocean dumping 
sites and interim ocean dumping criteria. EPA stated in the proposed 
rule that the use of the Interim Site near the Umpqua River Sites was 
terminated upon selection of the 103-selected site, the Adjusted Site, 
by the Corps. However, the category of ``interim site'' has now been 
removed from the ocean dumping regulations.
    (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 final Sites to meet this criterion. The 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 Sites is necessary 
and annual bathymetric surveys are required 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 Sites are located near where historic disposal 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 are typical of 
dredged material disposal in ocean waters. Monitoring and surveillance 
of these Sites do not pose the challenges inherent in locations beyond 
the edge of the continental shelf. 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 
on 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)).
    The geographical position, including the depth, bottom topography 
and distance from the coastline in the vicinity of the Sites will not 
cause adverse effects to the marine environment. Based on EPA's 
understanding of currents at the Sites and the influence of those 
currents 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 sediment circulation system. Limited 
onshore transport of material disposed of at the 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 
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. This movement is expected 
to allow for long-term disposal without creation of adverse mounding 
conditions at either of the Sites.
    To help avoid adverse mounding at the Sites, the site management 
strategy will include placing the majority of dredged material within 
drop zones at each Site and in shallower portions of the Sites closer 
to shore where the material can return to the regional littoral 
sediment system. Disposal runs will be managed to avoid multiple dumps 
in any location to further minimize mounding. Management may include 
establishing ``cells'' along the nearshore portions of each Site and 
assigning numbers of ``dumps'' to each cell to minimize material 
accumulation and avoid excessive or persistent mounding. Disposal will 
also alternate as necessary between the two Sites to allow for maximum 
dispersal of material and minimal impact to each Site.
    (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 Sites are not located in exclusive breeding, spawning, nursery, 
feeding or passage areas for adult or juvenile phases of living 
resources. Near the Sites, a variety of pelagic and demersal fish 
species, as well as shellfish, are found. Modeling of the water column 
over the Sites indicates that turbidity from a disposal event is 
expected to dissipate rapidly and consequently avoidance behavior by 
any species in the Sites or in the surrounding area at

[[Page 18652]]

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 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. Transportation of 
dredges or barges to and from the Sites to dispose of dredged material 
will be coordinated to avoid disturbance of other activities near the 
Umpqua River entrance channel. Dredged material disposed of at the 
Sites is expected to disperse into the littoral system, with a possible 
positive effect over time of reducing erosion of coastal beaches. 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 South ODMD Site, but does not 
extend into the water. Use of the South ODMD Site is not expected to 
interfere with any 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. While some 
of these uses may overlap with the Sites, resulting in temporary usage 
conflict during disposal activities, the SMMP contains provisions to 
minimize or avoid such conflicts. The Sites are sized and located to 
provide long-term capacity for the disposal of dredged material without 
causing any impacts to the wave environment at, or near, the Sites. 
Site monitoring and adaptive management are components of the final 
SMMP.
    (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 
Sites. No material defined as ``waste'' under the MPRSA will be allowed 
to be disposed of at the Sites. The dredged material to be disposed of 
at the Sites will be predominantly marine sand, far removed from known 
sources of contamination. With respect to methods of releasing material 
at the Sites, material will be released just below the surface and the 
disposal vessel 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 to species at the Sites 
at the time of a disposal event.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    EPA expects monitoring and surveillance at the Sites to be feasible 
and readily performed from small surface research vessels. The Sites 
are accessible for bathymetric and side-scan sonar surveys. At a 
minimum, annual bathymetric surveys will be conducted at each of the 
Sites to confirm that no unacceptable mounding is taking place within 
the Sites or in their immediate vicinity. Routine monitoring will 
concentrate on examining how the distribution of material in the near-
shore portions of the Sites is working to minimize mounding of material 
and how the distribution of material augments littoral processes. 
Monitoring will also examine the distribution of material in the deeper 
portions of the Sites to avoid or minimize mounding.
    (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 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 or coarser 
material tends to move directly as bedload, but is occasionally 
suspended by wave action near the seafloor. The final Sites are not 
expected to change these characteristics.
    (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 have not been used before for any type of disposal 
activity. Disposal of dredged material is not expected to result in 
unacceptable environmental degradation at the Sites or in the vicinity 
of the Sites. The final SMMP includes requirements, including 
bathymetric surveys and preventative steps, for managing the Sites to 
address 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)).
    The Sites are 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 final SMMP to minimize 
interference with other legitimate uses of the ocean through careful 
timing and staggering of disposals in the 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 may possibly overlap with the 
Sites resulting in temporary usage conflict during disposal activities 
but the Sites will be managed to minimize such potential conflicts. Use 
of the Sites is not expected to change the wave conditions for any 
recreational uses. Two wave energy projects are in the preliminary 
permitting phases near the Sites. EPA would expect to revise the SMMP 
if necessary in the event the proposed wave energy projects moved 
forward and potential conflicts seemed likely. 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 Sites.
    (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 did not identify any adverse water quality impacts from ocean 
disposal of dredged material at the Sites based on water and sediment 
quality analyses conducted in the study area of the 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 Sites. Material expected to be disposed at the Sites 
will be 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-

[[Page 18653]]

grained material could have the potential to attract nuisance species 
to the Sites, no such recruitment occurred in the past at either the 
Interim or the Adjusted Site. The final SMMP includes specific 
biological monitoring requirements, which will act to identify any 
nuisance species and 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 Sites. EPA coordinated with Oregon's State Historic 
Preservation Officer and with Tribes in the vicinity of the Sites to 
identify any cultural features but none were identified. No shipwrecks 
were observed or documented within the Sites or their immediate 
vicinity.

3. Response to Comments

    EPA received one indirect comment on the proposed rule. The 
commenter objected generally to any dumping in the ocean and criticized 
shipping companies for dumping rather than recycling. EPA's action 
designates sites for the disposal of dredged material meeting the ocean 
dumping criteria for environmental acceptability in the ocean 
environment. No other material is allowed at these Sites. The Sites 
will not be available to users for any purpose other than the disposal 
of dredged material meeting the regulatory criteria for suitability.

4. Environmental Statutory Review--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 requirements of NEPA through the functional 
equivalence doctrine. 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 primary voluntary NEPA document 
for designating the Sites is the final Umpqua River, Oregon Ocean 
Dredged Material Disposal Sites Evaluation Study and Environmental 
Assessment, April 2009 (EA), jointly prepared by EPA and the Corps. The 
final EA and its Technical Appendices, which are part of the docket for 
this action, provide the threshold environmental review for designation 
of the two Sites. The information from the final EA is used 
extensively, above, in the discussion of the ocean dumping criteria.

(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)(2), of the 
Magnuson-Stevens Act, as amended (MSA), 16 U.S.C. 1801 to 1891d. NMFS 
reviewed 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.
    With respect to marine mammals, NMFS found that all potential 
adverse effects to ESA-listed marine mammals are discountable or 
insignificant. Those findings are documented in Appendix B. Marine 
Mammal Determinations of the Biological Opinion issued by NMFS to EPA 
on March 20, 2009. With respect to EFH, NMFS found that disposal of 
dredge material, an indirect effect of EPA's action to designate the 
two Umpqua River ODMD Sites, will affect suspended sediment levels over 
background and temporarily decrease food resources within the Sites 
during disposal events. However, these effects are not expected to 
functionally change or alter the habitat or habitat value of designated 
EFH at or in the vicinity of the Sites. NMFS concluded that safe 
passage of the EFH managed species will not be functionally changed by 
this action or by subsequent disposal at the Sites. These findings are 
documented in the Magnuson-Stevens Fishery Conservation and Management 
Act section of the NMFS Biological Opinion. NMFS included a 
``conservation recommendation'' to develop a plan for monitoring fish 
interactions with the disposed dredged material at the Sites. EPA will 
respond in a separate written response to NMFS' recommendation.

(3) CZMA

    EPA initiated consultation with the State of Oregon on coastal zone 
management issues in June 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 submitted that 
determination formally to the Oregon Department of Land Conservation 
and Development (DLCD) for review on November 12, 2008. DLCD published 
an initial public notice on the consistency determination on November 
14, 2008, and in a notice on December 10, 2008, extended the public 
comment period to January 2, 2009. DLCD received one comment letter 
from the Oregon Department of Fish and Wildlife (ODFW) expressing 
support for the designation of the Umpqua River Sites and supporting 
ocean disposal of dredged material as the best alternative. ODFW did 
express concern with potential impacts to habitat near the mouth of the 
Umpqua River and expressed support for ``pinpoint dumping'' over 
``uniform placement'' of disposal material at the Sites.
    DLCD concurred on EPA's determination of consistency with one 
condition. The condition calls for the final SMMP to assure that 
monitoring measures for the Umpqua River Sites are reasonably likely to 
identify significant unanticipated adverse affects on renewable marine 
resources, biological diversity of marine life and functional integrity 
of the marine ecosystem at the Sites, and further asks that the SMMP 
include adaptive management measures to avoid significant impairment of 
the Sites and significant decreases in abundance of commercial or 
recreationally caught species from direct or indirect effects on 
important or essential habitat at the Sites. The final SMMP for the 
Umpqua River Sites provides the assurances and adaptive management 
measures requested by DLCD. DLCD responded to the ODFW concern about 
impacts to habitat by including the condition, above, in its 
consistency concurrence. DLCD also noted that ``pinpoint dumping'' has 
been replaced with the disposal technique of ``uniform placement.'' 
DLCD suggested that future site designations include opportunities for 
EPA and ODFW to coordinate on issues.

[[Page 18654]]

(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 Umpqua River ODMD Sites 
would not likely adversely affect listed species or critical habitat. 
Consultation with the USFWS for this action was completed on July 25, 
2008.
    The National Marine Fisheries Service (NMFS) did not concur with 
EPA's NLAA finding and subsequently prepared a Biological Opinion (BO), 
issued March 20, 2009. NMFS concluded that EPA's site designations are 
not likely to jeopardize the continued existence of Oregon Coast (OC) 
coho salmon or Southern Distinct Population Segment (DPS) green 
sturgeon and are not likely to destroy or adversely modify designated 
or proposed critical habitat. However, NMFS found that the indirect 
effects of designating the Umpqua River Sites related to the exposure 
fish could experience from the disposal of dredged material could have 
consequences for listed fish. Based on NMFS' estimate of ensuing 
indirect effects of designating the Sites, NMFS estimated that injury 
and death of as many as 990 yearling OC coho salmon and a smaller 
number of small sub-adult southern DPS green sturgeon could occur. For 
Steller sea lions, blue whales, fin whales, humpback whales, Southern 
Resident killer whales, as described in Appendix B to the BO, NMFS 
concurred with EPA's determination of NLAA. For Southern Oregon/
Northern California Coasts (SONNC) coho salmon, as described in 
Appendix A to the BO, NMFS also concurred with EPA's determination of 
NLAA. NMFS found no effect for four species of marine turtles, sperm 
whales, and sei whales because NMFS did not anticipate the species 
would be present in the action area.
    NMFS acknowledged in the BO that EPA's action, designation of the 
Umpqua River Sites, does not authorize and will not itself result in 
disposal of dredged material. NMFS stated that it does not anticipate 
any take will be caused by the designation of the Sites and the 
adoption of the SMMP. Consequently, NMFS did not include an incidental 
take statement in the BO. Rather, NMFS stated that any further analysis 
of the effect of disposal of dredged material at the disposal sites and 
issuance of an incidental take statement with reasonable and prudent 
measures and non-discretionary terms and conditions to minimize take 
would be prepared when a disposal permit is requested by the action 
agency. NMFS did include a discretionary conservation recommendation in 
the BO seeking a study of fish interactions with disposed material. 
Such recommendations are purely advisory in nature. EPA appreciates 
that such a study could contribute to the scientific knowledge base but 
believes that NMFS, the expert Federal agency on fish behavior, would 
be better suited than EPA to carry out such a study.

(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 designation of the 
Sites. EPA did not find any historic properties within the geographic 
area of the 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 
Sites. Side scan sonar of the Sites did not reveal the presence of any 
shipwrecks or other cultural or historic properties. The SHPO responded 
to EPA's determination on September 11, 2008, without objection. The 
SHPO clarified on October 13, 2008, that the designation of the Sites 
did not require further archeological investigation.

5. Action

    EPA designates the Umpqua River Sites as EPA-approved dredged 
material ocean disposal sites in this action. The monitoring and 
management requirements that will apply to these Sites are described in 
the final SMMP. EPA received one comment on the proposed rule from a 
commenter who objected to disposing of harmful material in the ocean. 
The Sites designated in this action are only available for the disposal 
of material deemed suitable for ocean disposal. The designation of 
ocean disposal sites for dredged material does not constitute or imply 
Corps or EPA approval of open water disposal of dredged material from 
any specific project. Before disposal of dredged material at either of 
the Umpqua River Sites may commence by any person, EPA and the Corps 
must evaluate the proposal according to the ocean dumping regulatory 
criteria (40 CFR part 227) and authorize disposal. EPA independently 
evaluates proposed dumping in accordance with those criteria pursuant 
to 40 CFR part 225. EPA has the right to disapprove of the actual 
disposal of dredged material if EPA determines that environmental 
requirements under the MPRSA have not been met.

6. Statutory and Executive Order Reviews

    This rule designates 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), 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, productivity, 
competition, jobs, the environment, public health or

[[Page 18655]]

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 
determined that this final 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 final 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 rule does not establish or modify any information or 
recordkeeping requirements for the regulated community.
    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 this rule on small entities, 
small entity is defined as: (1) A small business defined by the Small 
Business Administration's size regulations at 13 CFR 121.201; (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district, or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field. EPA determined that this final action will not 
have a significant economic impact on small entities because the final 
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 this rule, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.

(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), 
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 does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among 
various levels of government, as specified in Executive Order 13132. 
Thus, Executive Order 13132 does not apply to this rule.

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

    This rule does not have tribal implications, as specified in 
Executive Order 13175 because the designation of the two ocean 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 final rule, EPA consulted with tribal officials in the 
development of this rule, particularly as the rule relates to potential 
impacts to historic or cultural resources.

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

    EPA interprets Executive Order 13045 (62 FR 19885) 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 
action concerns the designation of two ocean dredged material disposal 
Sites and only has the effect of providing designated locations to use 
for ocean disposal of 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) 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

[[Page 18656]]

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 final action includes environmental monitoring and 
measurement as described in EPA's final SMMP. EPA will not require the 
use of specific, prescribed analytic methods for monitoring and 
managing the designated Sites. 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 
final SMMP.

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

    Executive Order 12898 (59 FR 7629) establishes federal executive 
policy on environmental justice. Its main provision directs federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. EPA determined that this final 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 disposal Sites against the criteria established pursuant to the 
MPRSA to ensure that any adverse impact to the environment will be 
mitigated to the greatest extent practicable.

(11) Congressional Review Act

    The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added 
by the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective thirty days from the date of 
publication in the Federal Register.

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: April 9, 2009.
Michelle L. Pirzadeh,
Acting Regional Administrator, Region 10.

0
For the reasons set out in the preamble, chapter I, title 40 of the 
Code of Federal Regulations is amended as follows:

PART 228--[AMENDED]

0
1. The authority citation for part 228 continues to read as follows:

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


0
2. Section 228.15 is amended by 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. E9-9434 Filed 4-23-09; 8:45 am]
BILLING CODE 6560-50-P