[Federal Register Volume 77, Number 174 (Friday, September 7, 2012)]
[Rules and Regulations]
[Pages 55144-55153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22100]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R10-OW-2012-0197; FRL-9724-7]


Ocean Dumping; Designation of Ocean Dredged Material Disposal 
Sites Offshore of Yaquina Bay, Oregon

AGENCY: The Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The EPA is finalizing the designation of two new ocean dredged 
material disposal (ODMD) sites offshore of Yaquina Bay, Oregon, 
pursuant to the Marine Protection, Research, and Sanctuaries Act, as 
amended (MPRSA). On April 5, 2012, the EPA published a proposed rule to 
designate the sites and opened a public comment period under Docket ID 
No. EPA-R10-OW-2012-0197. The comment period closed on May 7, 2012. The 
EPA received several comments on the proposed rule. The EPA's responses 
are included in section 2.c of this final rule labeled ``Response to 
Comments Received.'' The EPA decided to finalize the action to 
designate the new sites because the new sites are needed to serve the 
long-term need for a location to dispose of material dredged from the 
Yaquina River navigation channel, and to provide a location for the 
disposal of dredged material for persons or entities who have received 
a permit for such disposal. The newly designated sites are subject to 
ongoing monitoring and management to ensure continued protection of the 
marine environment.

DATES: The effective date of this final action shall be October 9, 
2012.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information may not be publicly available, e.g., confidential business 
information (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 www.regulations.gov or 
in hard copy at the EPA Region 10 Library, 1200 Sixth Avenue, Suite 
900, Seattle, Washington 98101. The EPA Region 10 Library is open from 
9:00 a.m. to noon, and 1:00 to 4:00 p.m. Monday through Friday, 
excluding federal holidays. The EPA Region 10 Library telephone number 
is (206) 553-1289.

FOR FURTHER INFORMATION CONTACT: Bridgette Lohrman, U.S. Environmental 
Protection Agency, Region 10, Office of Ecosystems, Tribal and Public 
Affairs, Environmental Review and Sediment Management Unit, Oregon 
Operations Office, 805 SW Broadway, Suite 500, Portland, Oregon 97205; 
phone number (503) 326-4006; email: [email protected].

SUPPLEMENTARY INFORMATION: 

1. Potentially Affected Persons

    Persons potentially affected by this action include those who seek 
or might seek permits or approval by the 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. The 
EPA's action would be relevant to persons, including organizations and 
government bodies seeking to dispose of dredged material in ocean 
waters offshore of Yaquina Bay, Oregon. Currently, the U.S. Army Corps 
of Engineers (Corps) would be most affected by this action. Potentially 
affected categories and persons include:

------------------------------------------------------------------------
           Category            Examples of potentially regulated persons
------------------------------------------------------------------------
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 responsible for
 governments.                   ports, harbors, and/or berths,
                                Government agencies requiring disposal
                                of dredged material associated with
                                public works projects.
------------------------------------------------------------------------

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

2. Background

a. History of Disposal Sites Offshore of Yaquina Bay, Oregon

    The Corps historically used the general area offshore of Yaquina 
Bay for dredged material disposal. In 1977, an Interim ODMD site 
offshore of Yaquina Bay received an EPA interim designation and was 
used by the Corps for dredged material disposal after 1977 and prior to 
1986 (Figure 1). Because of increased mounding in the Interim Site and 
its potential adverse effect on navigation safety, the Corps selected 
an alternate ODMD site, the ``Adjusted Site,'' under the authority of 
Section 103 of the MPRSA, with the EPA's concurrence. The Corps began 
to use this ``Adjusted Site'' in 1986. By 1990, dredged material had 
accumulated in the Adjusted Site to an extent that portions of the Site 
had to be avoided, and careful placement of material was necessary on 
specific portions of the Adjusted Site. In 2000, the Corps ceased

[[Page 55145]]

disposal of material at the Adjusted Site. In 2001, the Corps and the 
EPA completed a study examination of possible new locations for ocean 
disposal further offshore from the entrance to Yaquina Bay. The 
recommended locations from that study are the Yaquina North and South 
Sites designated in this action.
    In October 2000, these disposal sites were authorized for use by 
the Corps, following the EPA's concurrence, under Section 103 of the 
MPRSA as selected sites. To provide for sufficient disposal capacity 
over the long term, on April 5, 2012, the EPA proposed to designate 
both a Yaquina North Site and a Yaquina South Site under Section 102 of 
the MPRSA, for the ocean disposal of dredged material offshore of 
Yaquina Bay. These proposed sites were designed to use the footprints 
of the Section 103 selected sites. The Yaquina North Site, which had 
been unavailable once authorization for use under Section 103 of the 
MPRSA expired at the end of the 2011 dredge season, will be available 
for use as a designated site upon the effective date of this final 
action. The Yaquina South Site, which was used for disposal of dredged 
material for the first time during the 2012 dredging and disposal 
season since its selection under Section 103 in 2001, will also be 
available for use as a designated site upon the effective date of this 
action.
    The designation of the two ocean disposal sites for dredged 
material does not mean that the Corps or the EPA has approved the use 
of the Sites for open water disposal of dredged material from any 
specific project. Before any person or entity can dispose dredged 
material at either of the Sites, the EPA and the Corps must evaluate 
the project according to the ocean dumping regulatory criteria (40 CFR, 
part 227) and authorize the disposal. The EPA independently evaluates 
proposed dumping and has the right to restrict and/or disapprove of the 
actual disposal of dredged material if the EPA determines that 
environmental requirements under the MPRSA have not been met.

b. Location and Configuration of Yaquina North and South Ocean Dredged 
Material Disposal Sites

    This action finalizes the designation of two ocean dredged material 
sites to the north and south, respectively, offshore of Yaquina Bay. 
The location of the two ocean dredged material disposal sites (Yaquina 
North and South ODMD Sites, North and South Sites, or Sites) are 
bounded by the coordinates, listed below, and shown in Figure 1. The 
designation of these two Sites will allow the EPA to adaptively manage 
the Sites to maximize their capacity, minimize the potential for 
mounding and associated safety concerns, and minimize the potential for 
any long-term adverse effects to the marine environment.
    The coordinates for the two Sites are, in North American Datum 83 
(NAD 83):

Yaquina North ODMD Site

    44[deg]38'17.98'' N, 124[deg]07'25.95'' W
    44[deg]38'12.86'' N, 124[deg]06'31.10'' W
    44[deg]37'14.33'' N, 124[deg]07'37.57'' W
    44[deg]37'09.22'' N, 124[deg]06'42.73'' W
Yaquina South ODMD Site

    44[deg]36'04.50'' N, 124[deg]07'52.66'' W
    44[deg]35'59.39'' N, 124[deg]06'57.84'' W
    44[deg]35'00.85'' N, 124[deg]08'04.27'' W
    44[deg]34'55.75'' N, 124[deg]07'09.47'' W

    The two Sites are located in approximately 112 to 152 feet of 
water, and are located to the north and south of the entrance to 
Yaquina Bay on the central Oregon Coast. The Yaquina North Site is 
located about 1.7 nautical miles northwest of the entrance to Yaquina 
Bay and the Yaquina South Site is located about 2.0 nautical miles 
southwest of the bay's entrance. Both ocean disposal sites are 6,500 
feet long by 4,000 feet wide, each about 597 acres in size.
BILLING CODE 6560-50-P

[[Page 55146]]

[GRAPHIC] [TIFF OMITTED] TR07SE12.006

BILLING CODE 6560-50-C

c. Response to Comments Received

    The EPA received several comments on the proposed site designation 
during the public comment period which closed on May 7, 2012. Two 
commenters, while finding the proposed site designation to be thorough 
and inclusive, questioned whether negative effects from the site 
designation could be adequately controlled. In response to the concern 
raised by these commenters, the EPA reviewed the Site Management and 
Monitoring Plan (SMMP) for the Sites to ensure that controls are in 
place both to prevent negative effects and to correct impacts from 
negative effects in the unlikely event such effects occurred.

[[Page 55147]]

The final SMMP, found in the docket for this action, includes 
safeguards to act to prevent negative effects, primarily through 
ensuring that only material meeting ocean dumping criteria for ocean 
disposal are allowed to be disposed at the Sites, and through the 
implementation of adaptive management of the Sites. The EPA can respond 
to negative impacts, including, for example, having site users adjust 
disposal amounts, techniques, and timing, and the EPA can shut down the 
sites on a short term or long term basis if needed, if negative effects 
are observed or if trends suggest negative impacts could occur. The EPA 
has authority to condition, terminate or restrict site use with cause.
    Another commenter suggested that dumping dredged material at the 
Sites would result in a large amount of pollution in concentrated 
areas. In response to this comment, the EPA reiterates that material 
allowed to be disposed of at the Sites is limited to dredged material 
deemed to be environmentally acceptable for ocean disposal. As 
discussed in the proposed designation, and further discussed below, 
dredged material proposed for disposal would be evaluated prior to 
disposal. Only dredged material without contaminant concentrations at 
harmful levels would be deemed suitable for ocean disposal.
    This commenter also suggested that less dredging in the waterways 
would create less need for ocean disposal, while another commenter 
asked the EPA to consider alternate disposal sites and to facilitate 
additional discussions with local businesses and residents to discuss 
the impacts of the designation. The EPA appreciates these concerns. 
While the Corps, rather than the EPA determines the location and amount 
of dredging necessary to maintain the waterways of the U.S., the EPA 
determines, with the Corps' input, how best to dispose of material that 
must be disposed of in the ocean. Part of that analysis includes a 
balancing of community and ocean user needs. The EPA finds this site 
designation to be the best balance of those needs at this time. The EPA 
will continue to evaluate these local community concerns and will use 
the SMMP to make adjustments as needed to the extent practicable, to 
help ensure the needs of the users are balanced against the concerns of 
the local community.
    A commenter raised a concern about the site designations on bar 
conditions across the Yaquina Bay bar during high swell conditions and 
asked whether any special analysis was warranted. The EPA and the Corps 
share the commenter's concern that negative effects on bar crossing 
safety are unacceptable. The SMMP for the designated North and South 
Sites is designed with safeguards to help prevent disposal at the Sites 
from causing or contributing to adverse swell conditions. A primary 
goal of site management is to avoid the creation of persistent mounds 
that could negatively impact the wave climate. SMMP safeguards include 
placement strategies and special management conditions and practices to 
be implemented, such as ``uniform placement'' of dredged material and 
annual bathymetric surveys, so as to minimize the potential for 
mounding that could create or contribute to adverse swell conditions 
across the sites. Alternating the use of the North and South Sites is 
an included condition to help ensure minimal impact to the wave 
climate. Safeguards also include quantity restrictions, and the EPA's 
annual review of the prior year's dumping and the EPA's review of dump 
plans for the upcoming year prepared by the Corps. The SMMP sets a 
threshold condition to require the Corps to re-evaluate disposal 
impacts on wave climate if bathymetric surveys show elevations at 14 
feet above 2001 baseline elevations over more than 30% of the Site. If 
mounds above this threshold become widespread or persistent, the USACE 
and the EPA will conduct additional site assessment to determine if 
site use restrictions, including a change in disposal methodology, or 
cessation of use, are needed. If necessary, the EPA can direct users to 
conduct special studies to assess conditions and contributing factors. 
The EPA is convinced these safeguards combined with the EPA's authority 
to condition, terminate or restrict site use with cause, are sufficient 
to address this commenter's concern.
    Finally, one commenter asked whether shorebirds in the area would 
be affected by the site designation. The EPA assessed the potential 
impact to shorebirds in the Environmental Assessment prepared for the 
site designation and as part of evaluating the site designation 
pursuant to the Endangered Species Act. As discussed in the 
Environmental Assessment and the Biological Assessment, shorebirds are 
not expected to be affected by the site designation. The U.S. Fish and 
Wildlife Service (USFWS) concurred with the EPA's finding that the site 
designation is not likely to adversely affect seabirds because of the 
presence of abundant suitable foraging habitat and the anticipated 
temporary nature of minor behavioral changes in flight or foraging 
during disposal activities at the designated sites. The USFWS 
concurrence letter is included in the docket for this action.

d. Management and Monitoring of the Sites

    The Sites are expected to receive sediments dredged by the Corps to 
maintain the federally authorized navigation project at Yaquina Bay, 
Oregon and dredged material from other persons who have obtained a 
permit for the disposal of dredged material at the Sites. All persons 
using the Sites are required to follow the Site Management and 
Monitoring Plan (SMMP) for the Sites. The SMMP includes management and 
monitoring requirements to ensure that disposal activities will not 
unreasonably degrade or endanger human health, welfare, the marine 
environment, or economic potentialities. The SMMP for the Yaquina North 
and South Sites, in addition to the aforementioned, also addresses 
management of the Sites to ensure adverse mounding does not occur and 
to ensure that disposal events minimize interference with other uses of 
ocean waters in the vicinity of the proposed Sites. The SMMP, which was 
available for public comment as a draft document, has been finalized 
and the final document may be found in the Docket.

e. MPRSA Criteria

    In designating these Sites, the EPA assessed the Sites according to 
the criteria of the MPRSA, with particular emphasis on the general and 
specific regulatory criteria of 40 CFR part 228, to determine whether 
the site designations satisfied those criteria. The EPA's Yaquina Bay, 
Oregon Ocean Dredged Material Disposal Sites Evaluation Study and 
Environmental Assessment, July 2012 (EA), provided an extensive 
evaluation of the criteria and other related factors for the 
designation of these Sites. The EA was available as a draft document 
for review and comment when the EPA proposed to designate the sites. 
The EA has been finalized and the final document may be found in the 
Docket.
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)).
    The EPA reviewed the potential for the Sites to interfere with 
navigation,

[[Page 55148]]

recreation, shellfisheries, aquatic resources, commercial fisheries, 
protected geologic features, and cultural and/or historically 
significant areas and found low potential for conflicts. The Sites 
spatially overlap with recreational activities such as boating and 
whale watching, recreational and commercial finfish or Dungeness crab 
fishing, tow lane agreements between tow boat operators and Dungeness 
crab fishermen, and recreational and commercial navigation. However, 
the Sites are unlikely to cause interference with these or other uses 
provided close communication and coordination is maintained among 
users, vessel traffic control and the U.S. Coast Guard. Recreational 
users are expected to focus their activities on areas that are 
shoreward of the Sites, such as Yaquina Reef. Commercial fishing, 
including that for salmon and Dungeness crab, is expected to occur at 
the Sites, but the EPA does not expect disposal operations at the Sites 
to conflict with this use because of the limited space and time during 
which disposal occurs. The SMMP outlines site management objectives, 
including minimizing interference with other uses of the ocean. Should 
a site use conflict be identified, site use could be modified according 
to the SMMP to minimize that conflict.
    (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 the EPA's review of modeling, monitoring data, 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 or shoreline from disposal activities at the Sites. The 
primary impact of disposal activities on water quality is expected to 
be temporary turbidity caused by the physical movement of sediment 
through the water column. All dredged material proposed for disposal 
will be evaluated according to the ocean dumping regulations at 40 CFR 
227.13 and guidance developed by the 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).
    Disposal of suitable material meeting the regulatory criteria and 
deemed environmentally acceptable for ocean dumping will be allowed at 
the Sites. Most of the dredged material (approximately 95%) to be 
disposed at the Sites is expected to be sandy material, while a small 
amount of material (up to 5% of the material) would be classified as 
fine-grained. Hopper dredges, which are typically used for the Corps' 
annual navigation dredging, are not capable of removing debris from the 
dredge site. However, specific projects may utilize a clamshell dredge, 
in which case there is the potential for the occasional placement of 
naturally occurring debris at the disposal Sites.
    (3) 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)).
    To ensure that site managers can be responsive to the specifics of 
each dredging season based on dredge schedules, weather, and bathymetry 
at the Sites, the EPA has decided to designate both the North and South 
Sites. The footprints of the Sites are designed to maximize their 
capacity, helping to assure minimal mounding and to minimize any 
adverse affects to the wave climate. The presence of Yaquina Reef, 
close to shore at shallow depths, prevents nearshore designation and 
dredged material disposal in dispersive locations at depths less than 
60 feet. The North Site will be the preferred placement area for 
disposal of dredged material as was the case when the Site was used as 
a Section 103 selected site. During some periods, disposal may be 
alternated between the two Sites. The use of the South Site is more 
dependent upon wind and wave conditions, particularly in April and May 
when the typical dredge season starts, and for this reason is expected 
to be used less frequently than the North Site. Effective monitoring of 
the Sites is necessary and required. The EPA will require annual 
bathymetric surveys for each Site to track site capacity and to assess 
the potential for mounding concerns. These surveys will inform the 
active management of the Sites.
    (4) 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)).
    Disposal areas located off of the continental shelf would be at 
least 20 nautical miles offshore. This distance is well beyond the 4.5 
nautical mile haul distance determined to be feasible by the Corps for 
maintenance of their Yaquina Bay project. Additional disadvantages to 
off-shelf ocean disposal would be the unknown environmental impacts of 
disposal on deep-sea, stable, fine-grained benthic communities and the 
higher cost of monitoring sites in deeper waters and further offshore.
    Historic disposal has occurred at or in the vicinity of these Sites 
receiving final designation. The substrate of the Sites is similar in 
grain size to the disposal material and the placement avoids the unique 
habitat features of Yaquina Reef.
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 EPA does not anticipate that the geographical position of the 
Sites, including the depth, bottom topography and distance from the 
coastline, will unreasonably degrade the marine environment. To help 
avoid adverse mounding at the Sites, site management will generally 
include uniform placement, i.e., spreading disposal material throughout 
the Sites in a manner that will result in a relatively uniform 
accumulation of disposed material on the bottom over the long-term. 
Site management will include creating dump plans for each Site where 
disposal will occur. Dump plans establish cells within the Site to 
ensure uniform placement. In addition to minimizing mounding, the 
uniform placement is expected to minimize the thickness of disposal 
accumulations, which is expected to be less disruptive to benthic 
communities and aquatic species, such as crabs, that might be present 
at the Sites during disposal events. Because the Sites are relatively 
deep, to avoid the nearshore Yaquina Reef, they are not considered 
dispersive. Material placed in the Sites is not expected to move from 
the Sites except during large storm events.
    (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. At and in the immediate vicinity of the Sites, a variety of 
pelagic and demersal fish species,

[[Page 55149]]

including salmon, green sturgeon, and flatfish, as well as Dungeness 
crab, are found. Studies conducted by the EPA and the Corps at the 
Sites found the benthic infaunal and epifaunal community to be 
dominated by organisms that are adapted to a sandy environment. The 
benthic species, densities and diversities collected during these 
studies were typical of the nearshore sandy environment along the 
Oregon coast.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The Sites are approximately 2 nautical miles off the beach in water 
depths greater than 100 feet and beyond the ecologically and 
economically important Yaquina Reef. Given the depth of these Sites, 
the material is not expected to disperse from the Sites except during 
infrequent large storm events. Thus, impacts to beaches or the reef 
will be avoided. The sand removed from the Newport littoral cell is not 
expected to affect Newport's beaches because Pacific Northwest beaches 
tend to respond strongly to storm effects, the episodic nature of which 
would mask any long-term discrete changes such as disposal at these 
Sites. Site monitoring and adaptive management are components of the 
final SMMP to ensure beaches and other amenity areas are not adversely 
impacted.
    (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 at the Sites. 
No material defined as ``waste'' under the MPRSA will be allowed to be 
disposed at the Sites. The dredged material to be disposed at the Sites 
will be predominantly marine sand. Generally, disposal is expected to 
occur from a hopper dredge, in which case, material will be released 
just below the surface while the disposal vessel remains under power 
and slowly transits the disposal location. This method of release is 
expected to spread material at the Sites to minimize mounding, while 
minimizing impacts to the benthic community and to aquatic species 
present at the Sites at the time of a disposal event.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    The EPA expects monitoring and surveillance at the Sites to be 
feasible and readily performed from small, surface vessels. The EPA 
will ensure monitoring of the sites for physical, biological and 
chemical attributes. Bathymetric surveys will be conducted annually, 
contaminant levels in the dredged material will be analyzed prior to 
dumping, and the benthic infauna and epibenthic organisms will be 
monitored every 5 years, as funding allows.
    (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)).
    Disposal at the Sites will not degrade the existing wave 
environment within or outside the Sites. The placement of dredged 
material may have a minor effect on circulation within or outside the 
site boundaries. Due to the anticipated size of the mound resulting 
from the accumulated dredged material (10-14 feet high covering 597 
acres over 20 years), it is possible the currents in the vicinity of 
the Sites may begin to be affected. Any potential effect would not be 
expected to occur until a substantial amount of dredged material has 
been placed at the site (4-6 million cubic yards). At that time, the 
EPA plans to re-assess these assumptions and associated potential 
effects.
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (Including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    The North Site was used for disposal of dredged material from 2001 
to 2011. The seafloor elevation at the Site has risen 12 feet in a few 
locations. Annual bathymetric surveys will continue to be conducted to 
monitor mounding at the North Site. To date, disposal of dredged 
material has not changed the benthic infaunal nor epifaunal species 
expected to inhabit nearshore sandy substrates at this location. The 
South Site, prior to this designation, was selected by the Corps under 
their Section 103 authority under the MPRSA and has been used during 
the current 2012 dredging season. Preferential use of the North Site is 
expected to resume when this designation becomes effective, but 
capacity and other factors may result in continued use of the South 
Site in the future. The final SMMP includes monitoring and adaptive 
management measures 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. Commercial and 
recreational fishing and commercial navigation are the primary 
activities that may spatially overlap with disposal at the Sites. This 
overlap is more likely at the South Site given the South Site's 
proximity to the commercial shipping lane and in more direct alignment 
with the entrance channel to Yaquina Bay. The likelihood of direct 
interference with these activities is low, provided there is close 
communication and coordination among users, vessel traffic control and 
the U.S. Coast Guard. The EPA is not aware of any plans for mineral 
extraction, desalination plants, or fish and shellfish culture 
operations near the Sites at this time. The Sites are not located in 
areas of special scientific importance. They are located to the south 
of the Newport Hydrographic line, south of the proposed Northwest 
National Marine Renewable Energy Center's nearshore test facility, and 
west of the Yaquina Reef.
    (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)).
    The EPA has not identified any potential adverse water quality 
impacts from the 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 past disposal experience at the proposed North 
Site when it was used as a Section 103 selected site. Benthic grabs and 
trawl data show the ecology of the area to be that associated with 
sandy nearshore substrate 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-grained material could have the 
potential to attract nuisance species to the Sites, no such recruitment 
is known to have taken place at the North Site while the Site was used 
as a Section 103 selected site. The final SMMP includes benthic 
infaunal and epifaunal monitoring requirements, which will act to 
identify any nuisance species and allow the EPA to direct special 
studies

[[Page 55150]]

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 at this time. The EPA coordinated with 
Oregon's State Historic Preservation Officer and with Tribes in the 
vicinity of the Sites to identify any cultural features. On July 16, 
2012, the State agreed with the EPA that the designation of the North 
and South Yaquina Sites will have no effect on any known cultural 
resources. No cultural features or shipwrecks have been observed or 
documented within the proposed Sites or their immediate vicinity.

3. 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)

a. NEPA

    Section 102 of the National Environmental Policy Act of 1969, as 
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to 
prepare an Environmental Impact Statement (EIS) for major federal 
actions significantly affecting the quality of the human environment. 
NEPA does not apply to the EPA designations of ocean disposal sites 
under the MPRSA because the courts have exempted the EPA's actions 
under the MPRSA from the procedural requirements of NEPA through the 
functional equivalence doctrine. The EPA has, by policy, determined 
that the preparation of NEPA documents for certain EPA regulatory 
actions, including actions under the MPRSA, is appropriate. The 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 the EPA uses when preparing 
such environmental review documents. The EPA's primary voluntary NEPA 
document for designating the Sites was the draft Yaquina Bay, Oregon 
Ocean Dredged Material Disposal Sites Evaluation Study and 
Environmental Assessment, (July 2012) (EA), jointly prepared by the EPA 
and the Corps. The draft EA and its Technical Appendices, which are 
part of the docket for this action, were finalized after the close of 
the public comment period for this action. The information from the 
final EA is used above, in the discussion of the ocean dumping 
criteria.

b. MSA and MMPA

    The 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, and submitted 
that assessment to the National Marine Fisheries Service (NMFS) on 
December 19, 2011. The NMFS reviewed the EPA's EFH assessment and 
Endangered Species Act (ESA) Biological Assessment and addendum thereto 
for purposes of the Marine Mammal Protection Act of 1972, as amended 
(MMPA), 16 U.S.C. 1361 to 1389. The NMFS found that that all potential 
adverse effects to ESA-listed marine mammals, marine turtles, and 
designated critical habitat for leatherback sea turtles from the EPA's 
action to designate the Yaquina North and South Sites are discountable 
or insignificant. Those findings are documented in the Biological 
Opinion issued by the NMFS to the EPA on July 10, 2012. With respect to 
EFH, the NMFS concluded that the disposal of dredged material will 
adversely affect water quality from increased turbidity in the water 
column, availability of benthic prey species, and safe passage during 
disposal. The NMFS provided two EFH Conservation Recommendations to 
avoid or minimize the effects to EFH mentioned above. The NMFS 
recommends monitoring how fish interact with the disposal plume and 
conducting surveys to determine seasonal distribution, abundance, and 
habitat use of EFH species and their prey at the disposal sites. The 
EPA will respond in a separate written response to the NMFS' 
recommendations.

c. CZMA

    The Coastal Zone Management Act, as amended (CZMA), 16 U.S.C. 1451 
to 1465, requires Federal agencies to determine whether their actions 
will be consistent to the extent practicable with the enforceable 
policies of approved state programs. The EPA prepared a consistency 
determination for the Oregon Coastal Management Program (OCMP), the 
approved state program in Oregon, to meet the requirements of the CZMA 
and submitted that determination to the Oregon Department of Land 
Conservation and Development (DLCD) for review on February 17, 2012. 
The DCLD concurred on May 7, 2012, with the EPA's determination that 
the designation of the North and South Yaquina ODMD sites is consistent 
to the maximum extent practicable with the enforceable policies of the 
OCMP. The DLCD based its concurrence on the information contained in 
the EPA's consistency determination and supporting materials, and on 
extensive conversations with the EPA. The Oregon Department of Fish and 
Wildlife (ODFW) participated in discussions with the EPA and the DLCD 
concerning the consistency determination and both the ODFW and the DLCD 
encouraged the EPA to pursue future disposal sites within the littoral 
zone.

d. ESA

    The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to 
1544, requires Federal agencies to consult with the NMFS and the U.S. 
Fish and Wildlife Service (USFWS) to ensure that any action authorized, 
funded, or carried out by the Federal agency is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of any critical habitat. The EPA prepared a Biological Assessment (BA) 
to assess the potential effects of designating the two proposed Sites 
on aquatic and wildlife species and submitted that BA to the NMFS and 
the USFWS on December 19, 2011. The EPA found that site designation 
does not have a direct impact on any of the identified ESA species, and 
also found that indirect impacts associated with reasonably foreseeable 
future disposal activities had to be considered. These anticipated 
indirect impacts from disposal included a short-term increase in 
suspended sediment, short-term disruption in avian foraging behavior, 
modification of bottom topography, loss of benthic prey species from 
burial, and loss of pelagic individuals during disposal of material 
through the water column. The EPA concluded that its action may affect, 
but is not likely to adversely affect 18 ESA-listed species and is not 
likely to adversely affect designated critical habitat for southern 
green sturgeon (Acipenser medirostris) but is likely to adversely 
affect Oregon Coast coho salmon (Oncorhynchus kisutch). The USFWS 
concurred on the EPA's finding that the proposed action is not likely 
to adversely affect listed endangered or threatened species under the 
jurisdiction of the USFWS.
    The NMFS issued a Biological Opinion on July 10, 2012. The NMFS 
considered disposal by the Corps and all other entities as an 
interrelated action to the EPA's proposed site designation, thus, the 
effects from future disposals are indirect effects of the EPA's action. 
The NMFS concluded that the EPA's action is not likely to jeopardize 
the

[[Page 55151]]

continued existence of Oregon Coast coho salmon, southern distinct 
population segment (DPS) of North American green sturgeon, southern DPS 
of Pacific eulachon, or result in the destruction or adverse 
modification of designated critical habitat for southern DPS North 
American green sturgeon. The NMFS also concluded that the EPA's 
proposed action is not likely to adversely affect 18 ESA-listed salmon, 
sea lions, whales, marine turtles, and critical habitat for southern 
DPS of North American green sturgeon and leatherback turtles.
    The NMFS did not issue an incidental take statement with their 
Biological Opinion to the EPA. This decision was based upon the 
following: (1) The adverse effects identified in the Biological Opinion 
will result from indirect effects of subsequent Federal actions carried 
out by the Corps and other entities carrying out dredging and disposal; 
(2) these individual actions are likely to cause take of ESA-listed 
species, so it is more appropriate to consider exempting take on a 
case-by-case basis as such actions are proposed in the future; (3) the 
EPA's action as described in the Biological Opinion does not authorize 
and will not itself result in disposal of any dredged materials; and 
(4) the NMFS does not anticipate any take will result from the site 
designation and adoption of the SMMP. The NMFS further stated that 
``any further analysis of the effects of disposal of dredged material 
at the disposal site and issuance of an incidental take statement with 
reasonable and prudent measures and non-discretionary terms and 
conditions to minimize take will be prepared when an ESA consultation 
on a dredging and disposal action is requested.''

e. NHPA

    The EPA initiated consultation with the State of Oregon's Historic 
Preservation Officer (SHPO) on February 27, 2012, to address the 
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. The EPA determined that no historic properties were affected, 
or would be affected, by designation of the Sites. The EPA did not find 
any historic properties within the geographic area of the Sites. This 
determination was based on a review of the National Register of 
Historic Districts in Oregon, the Oregon National Register list and an 
assessment of potential cultural resources near the Sites. On July 16, 
2012, the State agreed with the EPA that the designation of the North 
and South Yaquina Sites will have no effect on any known cultural 
resources.

4. Statutory and Executive Order Reviews

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

a. Executive Orders 12866 and 13563.

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993). This 
action is exempt from review under Executive Order 12866 and Executive 
Order 13563 (76 FR 3821, January 21, 2011).

b. Paperwork Reduction Act

    The EPA does not reasonably anticipate collection of information 
from ten or more people based on the historic use of designated sites. 
Consequently, the action is not subject to the Paperwork Reduction Act.

c. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et 
seq., 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 part 121; (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. The 
EPA has determined that this action will not have a significant 
economic impact on small entities because the 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 proposed rule, I certify that this action will not have 
a significant economic impact on a substantial number of small 
entities.

d. 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.

e. Executive Order 13132: Federalism

    This action does not have federalism implications. It does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among various levels of government, as specified 
in Executive Order 13132. Thus, Executive Order 13132 does not apply to 
this action. In the spirit of Executive Order 13132, and consistent 
with the EPA policy to promote communications between the EPA and State 
and local governments, the EPA specifically solicited comment from 
State and local officials but did not receive comments from State or 
local officials.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175 because the 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 action. Although Executive Order 13175 does not apply 
to this action the EPA consulted with tribal officials in the 
development of this action, particularly as the action relates to 
potential impacts to historic or cultural resources. The EPA 
specifically solicited comment from tribal officials.

[[Page 55152]]

The EPA did not receive comments from tribal officials.

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

    The 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.

h. 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.

i. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272), 
directs the 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 the EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This action 
includes environmental monitoring and measurement as described in the 
EPA's SMMP. The 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 proposed SMMP.

j. 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. The EPA determined that this 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. The 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.

k. Congressional Review Act

    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. The 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 October 9, 2012.

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: August 27, 2012.
Dennis J. McLerran,
Regional Administrator, Region 10.
    For the reasons set out in the preamble, the EPA amends chapter I, 
title 40 of the Code of Federal Register 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)(15) to read as 
follows:

Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (n) * * *
    (15) Yaquina Bay, OR--North and South Ocean Dredged Material 
Disposal Sites
    (i) North Site.
    (A) Location (NAD 83): 44[deg]38'17.98'' N, 124[deg]07'25.95'' W; 
44[deg]38'12.86'' N, 124[deg]06'31.10'' W; 44[deg]37'14.33'' N, 
124[deg]07'37.57'' W; 44[deg]37'09.22'' N, 124[deg]06'42.73'' W.
    (B) Size: Approximately 1.07 nautical miles long and 0.66 nautical 
miles wide (0.71 square nautical miles); 597 acres (242 hectares)
    (C) Depth: Ranges from approximately 112 to 152 feet (34 to 46 
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 Yaquina Bay and 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 Site.
    (A) Location (NAD 83): 44[deg]36'04.50'' N, 124[deg]07'52.66'' W; 
44[deg]35'59.39'' N, 124[deg]06'57.84'' W; 44[deg]35'00.85'' N, 
124[deg]08'04.27'' W; 44[deg]34'55.75'' N, 124[deg]07'09.47'' W.
    (B) Size: Approximately 1.07 nautical miles long and 0.66 nautical 
miles wide (0.71 square nautical miles); 597 acres (242 hectares)
    (C) Depth: Ranges from approximately 112 to 152 feet (34 to 46 
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

[[Page 55153]]

according to 40 CFR 227.13, from the Yaquina Bay and 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. 2012-22100 Filed 9-6-12; 8:45 am]
BILLING CODE 6560-50-P