[Federal Register Volume 81, Number 27 (Wednesday, February 10, 2016)]
[Proposed Rules]
[Pages 7055-7063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02585]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-9942-08-Region 1]


Ocean Disposal; Proposed Amendments to Restrictions on Use of 
Dredged Material Disposal Sites in the Central and Western Portions of 
Long Island Sound; Connecticut

AGENCY: Environmental Protection Agency (EPA).

[[Page 7056]]


ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) today proposes to 
amend federal regulations that designated, and placed restrictions on 
the use of, the Central Long Island Sound and Western Long Island Sound 
dredged material disposal sites, located offshore from New Haven and 
Stamford, Connecticut, respectively. The amended regulation 
incorporates standards and procedures for the use of those sites as 
recommended in the Long Island Sound Dredged Material Management Plan, 
which was completed by the U.S. Army Corps of Engineers on January 11, 
2016. The Dredged Material Management Plan identifies a wide range of 
alternatives to open-water disposal and recommends standards and 
procedures for determining which alternatives to pursue for different 
dredging projects, so as to reduce or eliminate wherever practicable 
the open-water disposal of dredged material.

DATES: Comments must be received on or before March 25, 2016. EPA will 
hold two public meetings to receive comment on the proposed rule. The 
first will be held on March 1, 2016, from 5 p.m. to 7 p.m. at the Port 
Jefferson Free Library, 100 Thompson Street, Port Jefferson, New York. 
The second will be held on March 2, 2016, from 3:30 p.m. to 5:30 p.m. 
at the University of Connecticut-Stamford, Auditorium 2, 1 University 
Place, Stamford, Connecticut.

ADDRESSES: Written comments should be sent to: Stephen Perkins, U.S. 
Environmental Protection Agency, New England Regional Office, 5 Post 
Office Square, Suite 100, Mail Code: OEP06-3, Boston, MA 02109-3912 or 
electronically to [email protected].

FOR FURTHER INFORMATION CONTACT: Stephen Perkins, U.S. Environmental 
Protection Agency, New England Regional Office, 5 Post Office Square, 
Suite 100, Mail Code: OEP06-3, Boston, MA 02109-3912, telephone (617) 
918-1501, electronic mail: [email protected].
    Public Review of Documents: The file supporting these proposed 
revisions is available for inspection as follows:
    In person. The Proposed Rule and the U.S. Army Corps of Engineers' 
Dredged Material Management Plan (DMMP) and Programmatic Environmental 
Impact Statement (PEIS) for Long Island Sound are available for 
inspection at the U.S. Environmental Protection Agency, New England 
Regional Office, 5 Post Office Square, Boston, MA. Persons interested 
in inspecting materials in person should contact Stephen Perkins by 
telephone (617) 918-1501 or electronic mail: [email protected] to 
arrange a time to view them.
    Electronically. You also may review and/or obtain electronic copies 
of the Proposed Rule from EPA's Web site http://www3.epa.gov/region1/eco/lisdreg/eis.html. The DMMP and PEIS are available from the U.S. 
Army Corps of Engineers' Long Island Sound DMMP Web site at: http://www.nae.usace.army.mil/Missions/ProjectsTopics/LongIslandSoundDMMP.aspx.

SUPPLEMENTARY INFORMATION: Organization of this document. The following 
outline is provided to aid in locating information in this preamble.

I. Background
II. The Dredged Material Management Plan for Long Island Sound
III. Standards and Procedures
    A. Standards
    B. Procedures
IV. Compliance With Statutory and Regulatory Requirements
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. Background

    On June 3, 2005, EPA published in the Federal Register (70 FR 
32498) a final rule (the 2005 Rule) designating two open-water dredged 
material disposal sites, the Central Long Island Sound site (CLDS, 
previously referred to as CLIS) and the Western Long Island Sound site 
(WLDS, previously referred to as WLIS), for the disposal of dredged 
material from harbors and navigation channels in Long Island Sound 
(LIS) in the states of Connecticut and New York. These disposal site 
designations were subject to various restrictions designed both to 
ensure appropriate use of the sites and to support the goal of reducing 
or eliminating the disposal of dredged material into Long Island Sound. 
In support of this action, EPA also prepared a Final Environmental 
Impact Statement (FEIS) under the National Environmental Policy Act 
(NEPA) pursuant to the Agency's voluntary NEPA compliance policy.
    Pursuant to the Coastal Zone Management Act (CZMA), EPA consulted 
with the New York Department of State (NY DOS) and the Connecticut 
Department of Environmental Protection (CT DEP) \1\ on the designation 
of these two sites. NY DOS raised objections as to the consistency of 
the designations with the enforceable policies of New York's Coastal 
Management Program. After consulting with both states, as well as with 
the U.S. Army Corps of Engineers (USACE) and the National Oceanic and 
Atmospheric Administration (NOAA), EPA negotiated an interim resolution 
with NY DOS regarding its concerns. Specifically, EPA agreed to include 
restrictions on the use of the sites in order to meet NY DOS's concerns 
and provide enhanced assurance that the requirements of the CZMA, the 
Marine Protection, Research, and Sanctuaries Act (MPRSA), and NEPA are 
met.\2\ These restrictions were agreed to by both the NY DOS and the CT 
DEP.
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    \1\ CT DEP has since been renamed and reconfigured as the 
Connecticut Department of Energy & Environmental Protection (CT 
DEEP).
    \2\ EPA held, and continues to hold, the view that the site 
designations without the additional restrictions would have been 
consistent with the enforceable policies of New York's CMP. 
Nevertheless, EPA agreed that the additional site restrictions 
placed reasonable conditions on when the disposal sites could be 
used that provided enhanced assurance that the requirements of the 
CZMA, the MPRSA, and NEPA are met. Moreover, adding these site use 
restrictions represented a reasonable course of action lying between 
the alternatives of not designating any disposal sites at all, and 
designating sites for an indefinite term without the Restrictions. 
Furthermore, EPA noted that the added site use restrictions arose 
out of comments submitted by NY DOS and other parties and would be 
consistent with EPA's environmental analysis and proposed action.
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    The restrictions were designed to ensure appropriate use and 
management of the designated disposal sites and to support the common 
goal of New York and Connecticut to reduce or eliminate wherever 
practicable the disposal of dredged material in Long Island Sound. To 
support this goal, the restrictions contemplated that there would be a 
regional dredged material management plan (DMMP) for Long Island Sound 
that would help to guide the management of dredged material from 
projects which occur after completion of the DMMP. DMMPs are 
comprehensive studies carried out by the USACE, in consultation with 
the EPA and the affected states, to help manage dredged material in a 
cost-effective and environmentally acceptable manner.
    The Governors of New York and Connecticut jointly requested the 
USACE to develop a regional DMMP for Long Island Sound. Consistent with 
the two states' requests, the 2005 designations contemplated that the 
DMMP for Long Island Sound would include the identification of 
alternatives to open-water disposal and the development of procedures 
and standards for the use of the disposal sites and any practicable 
alternatives to open-water disposal, so as to reduce or eliminate 
wherever practicable the open-water disposal of dredged material. The 
restrictions also included transitional conditions to govern dredged 
material management during the development of the DMMP,

[[Page 7057]]

including sunset provisions for the sites if the DMMP was not 
completed.
    The restrictions also included conditions that specified that use 
of the sites would be suspended if, (a) within 60 days of the 
completion of the DMMP, the EPA does not propose legally binding 
amendments to the regulations for the two disposal sites to incorporate 
lawful procedures and standards consistent with those recommended in 
the DMMP for the use of the disposal sites and the use of practicable 
alternatives to open-water disposal, and (b) within 120 days of 
completion of the DMMP, and subject to the EPA's consideration of 
public comments, the EPA does not issue legally binding final 
amendments adopting such procedures and standards. Any such suspension 
in the use of the sites would be lifted if and when EPA issued the 
required final rule.

 II. The Dredged Material Management Plan for Long Island Sound

    On January 11, 2016, the USACE completed the Dredged Material 
Management Plan for Long Island Sound--Connecticut, New York, Rhode 
Island. EPA, NOAA, and the states of Connecticut and New York were 
active participants in the development of the DMMP. These agencies 
participated on a Steering Committee and other sub-groups to assist the 
USACE throughout the process. EPA provided feedback to USACE on 
individual sections of the DMMP as they were developed and on the draft 
of the complete DMMP.
    The DMMP examines the need for dredging over a 30-year horizon, 
past dredging history and dredged material placement, and current 
beneficial use practices. The DMMP covers adjacent waters from which 
dredged material was likely to originate within the draw area of any 
proposed regional disposal solution, including Block Island Sound, 
Little Narragansett Bay, Fishers Island Sound, Peconic Bay and 
Gardiners Bay. A total of nearly 240 harbors, coves, bays and rivers 
supporting various levels of navigational access are located along 
these shores.
    The Long Island Sound DMMP estimates a dredging need of 52.9 cubic 
yards over its 30-year planning horizon. Of this total, about 29 
percent is expected to be sand, about 65 percent is expected to be 
fine-grained materials suitable for open-water placement, and about 6 
percent is expected to be unsuitable for open-water placement. The 
distribution of this material among the three states is as follows: 
About 74 percent is from Connecticut, 25 percent is from New York and 1 
percent from Rhode Island. Of the total volume, about 63 percent is 
from the USACE Federal Navigation Projects (FNP), 2 percent is from 
other federal agency projects, and 35 percent is from non-federal 
dredging activities under permit. The USACE has indicated that 
budgetary constraints are likely to reduce the dredging volumes from 
FNPs.
    The DMMP identifies and assesses alternatives for future dredged 
material placement and beneficial use for each federal project and 
separable component, and identifies the likely Federal Base Plans (the 
least cost environmentally acceptable alternative) for future FNP 
dredging activities. Finally, the DMMP recommends procedures to be 
followed and standards to be applied in evaluating and recommending 
dredged material placement options, tracking dredged material 
placement, pursuing opportunities for alternative and beneficial uses 
of dredged material in Long Island Sound, and researching and 
monitoring the impacts of past and future placement activities.
    The DMMP is not a decision document, in that it does not determine 
the specific dredged material placement solution for any specific 
Federal Navigation Project activity. It also does not authorize 
disposal or any other form of management of any particular dredged 
material. Instead, the DMMP will serve as a framework to help guide 
future investigations and inform decision-making for federal actions 
with respect to dredging and dredged material placement. As individual 
projects come up for their next maintenance cycle, or as feasibility 
studies for proposed improvement dredging projects are prepared, those 
studies should reference the evaluations and recommendations in the 
DMMP in examining placement alternatives and making a final 
determination as to the Federal Base Plan and appropriate beneficial 
use opportunities beyond the base plan.
    The DMMP identifies the likely Federal Base Plans for each of the 
52 FNPs and sub-projects in the Long Island Sound region that will or 
may require maintenance dredging of project features during the 30-year 
planning horizon. Opportunities for federal participation in beneficial 
use options are also identified along with non-federal responsibilities 
for study and implementation of the various placement alternatives.
    Identification of the likely Federal Base Plan for a particular 
federal dredging project is not the same as selecting a placement 
option for that project, nor does it limit potential federal 
participation in the project. For each federal project, as it is 
considered for funding for dredging, the Corps must analyze the 
available alternatives, other eligible authorities, and the willingness 
and capability of non-federal cost-sharing partners to participate 
before recommending any final plan for dredged material placement or 
beneficial use. Other factors beyond cost can also contribute to 
decisions on placement options for dredging projects. Ecosystem 
restoration is recognized as one of the primary missions of the USACE 
under its planning guidance, and the placement option that is selected 
for a project should maximize the sum of net economic development and 
environmental restoration benefits. A beneficial use option may be 
selected for a project even if it is not the Federal Base Plan for that 
project.
    In response to the 2005 Rule, and in accordance with the DMMP 
Project Management Plan (work plan), Section 7 of the DMMP recommends 
procedures to be followed and standards to be applied in evaluating and 
recommending dredged material placement options, tracking dredged 
material placement, pursuing opportunities for alternative and 
beneficial uses of dredged material in Long Island Sound, and 
researching and monitoring impacts of past and future placement 
activities. These recommendations form the basis for EPA's proposed 
amendments to the 2005 restrictions, as described below.

III. Standards and Procedures

    Consistent with the 2005 Rule and with the recommendations of the 
DMMP, EPA is proposing to amend the current restrictions to include 
standards and procedures for the use of practicable alternatives to 
open-water disposal, so as to reduce or eliminate wherever practicable 
the open-water disposal of dredged material.

A. Standards

    EPA proposes to retain the current restriction at 40 CFR 
228.15(b)(4)(vi)(I)(1) which provides that disposal at the sites shall 
be allowed only if there is no practicable alternative to open-water 
disposal and that any practicable alternative will be fully utilized 
for the maximum volume of dredged material practicable. EPA also 
proposes to retain the first sentence of Sec.  228.15(b)(4)(vi)(I)(2) 
which recognizes that any alternative to open-water disposal may add 
additional costs.
    As discussed in the preamble to the 2005 Rule, the decision 
regarding whether there is a ``practicable alternative'' will continue 
to be made on

[[Page 7058]]

a case-by-case basis, in connection with the permitting process. The 
term ``practicable alternative'' is defined in 40 CFR 227.16(b) of the 
EPA's ocean disposal regulations as an alternative which is, 
``available at reasonable incremental cost and energy expenditures, 
[and] which need not be competitive with the costs of ocean dumping, 
taking into account the environmental benefits derived from such 
activity, including the relative adverse environmental impacts 
associated with the use of alternatives to ocean dumping.'' This 
definition is incorporated by reference in 40 CFR 
228.15(b)(4)(vi)(I)(1).
    In addition, 40 CFR 228.15(b)(4)(vi)(I)(2)) in the 2005 Rule 
emphasizes that the designated sites may not be used whenever a 
``practicable alternative'' is available even when this means 
reasonable added incremental costs. Under this paragraph and the 
general ocean dumping regulations, the USACE (the permitting agency) 
must make the initial determination of whether this test has been met, 
but the USACE decision is subject to review and possible objection by 
the EPA. Given that these regulations entail restrictions on an EPA 
site designation, if the EPA objects to any USACE determination that 
practicable alternatives are not available, use of the designated sites 
will be prohibited unless and until the EPA objection is resolved.
    By definition, the requirement that projects use ``practicable 
alternatives'' will not impose unreasonably higher costs. Also, if an 
alternative does not have less adverse environmental impact or 
potential risk to other parts of the environment than use of the Sound, 
today's rule will not require that it be used. However, the EPA 
recognizes that even where use of Long Island Sound has been determined 
to be environmentally acceptable, there may be alternatives (e.g., 
those involving beneficial use) that are environmentally preferable to 
open-water disposal at the designated disposal sites in the Sound. When 
such preferable alternatives are identified, they will need to be used 
if they are available at ``reasonable incremental cost.''
    The language retained from the 2005 Rule does not attempt to 
specify in advance how the ``reasonable incremental cost'' standard 
will be applied in any particular case. The regulation contemplates a 
balancing test, and the EPA believes that the determination is best 
made on a case-by-case basis. The language of the 2005 Rule also does 
not attempt to specify who will need to pay for any reasonable 
incremental costs. Rather, the share of such costs (if any) to be borne 
by private parties, state government, local government, or the federal 
government also will need to be worked out in response to actual 
situations. It should be understood, however, that if the use of a 
practicable alternative is required in the future pursuant to today's 
proposed rule (and 40 CFR 227.16), and no entity is willing to pay the 
reasonable incremental costs, then use of the sites will be prohibited 
for such projects even when this means that planned projects cannot go 
forward. EPA recognizes that this could result in deferral of 
maintenance or improvement projects that could impact navigation.
    EPA proposes to add the following standards, derived from the DMMP, 
for the disposal of dredged material, by type of material, in the 
amended restrictions for both disposal sites. These proposed amendments 
do not make decisions about the suitability of any particular dredged 
material for open-water disposal or any other type of management. Each 
dredging project will have to go through project-specific permitting 
evaluations.
1. Unsuitable Material
    ``Unsuitable fine-grained materials'' are those determined by 
physical, chemical and biological testing to be unsuitable for 
unconfined open-water placement. Accordingly, EPA's proposed rule 
specifies that unsuitable fine-grained materials shall not be disposed 
of at the designated sites.
2. Sandy Material
    ``Sandy material'' in Long Island Sound is coarse-grained material 
of generally up to 20 percent fines when used for direct beach 
placement, or up to 40 percent fines when used for nearshore bar/berm 
nourishment. Clean sandy material should be used for beach or nearshore 
bar/berm nourishment whenever practicable. Sandy material has a high 
value as nourishment or in other coastal resiliency applications, and 
recent experience is that state and local governments, as well as 
property owner groups, are willing to fund the additional cost for such 
material even where there is no other federal project authority to 
assist in that cost. This is primarily because using dredged sand is 
typically far less costly than acquiring sand from an upland source. As 
long as beach or nearshore placement is a practicable alternative, 
project proponents will need to identify and secure funding for any 
needed non-federal cost-sharing. Accordingly, the proposed rule 
specifies that coarse-grained material should be used for beach or 
nearshore bar/berm nourishment, or other beneficial use whenever 
practicable.
3. Suitable Fine-Grained Material
    ``Suitable fine-grained material'' in Long Island Sound is 
typically clay and silty material of more than 20 to 40 percent fines 
that is not suitable for beach or nearshore placement, yet is 
determined through testing and analysis to be suitable for open-water 
placement. Although the most likely cost-effective and environmentally 
acceptable method of placement of this material is at open-water 
disposal sites, EPA proposes that every proposed project exhaust the 
possibility for a practicable alternative to open-water disposal. More 
specifically, for materials dredged from upper river channels in the 
Connecticut, Housatonic and Thames Rivers, whenever practicable, the 
one existing Confined Open Water site, and on-shore or in-river 
placement, should be used for such projects.
    Other beneficial uses, such as marsh creation, should be examined 
and used whenever practicable. Project proponents should determine if 
environmental and/or other benefits may offset the incremental project 
cost sufficiently to warrant federal participation under one or more of 
the other authorities discussed in Section 6 of the DMMP. EPA 
anticipates that the opportunities for beneficial use of fine grained 
materials may increase in the future as sea level rise and related 
resiliency concerns generate demand for materials to conserve and 
protect shorelines. As such, the alternatives for fine-grained 
materials described in the DMMP should be viewed as a current 
assessment of possible beneficial uses rather than the limit of such 
possibilities in the future.
    The proposed rule specifies that beneficial uses such as marsh 
creation, should be examined and used whenever practicable. If no other 
alternative is determined to be practicable, suitable fine-grained 
material may be placed at the designated sites.
4. Source Reduction
    Efforts to control sediment entering waterways can reduce the need 
for maintenance dredging of harbor features and facilities by reducing 
shoaling rates. Reducing sediment loads could help reduce the volumes 
dredged in each maintenance operation as well as reduce the frequency 
of maintenance. In addition, efforts to prevent introduction of 
contaminants into the watershed (e.g., multi-sector and municipal 
stormwater permits, measures to control nonpoint agricultural runoff) 
can result in

[[Page 7059]]

reduced contaminant levels in sediments that can increase the range of 
options available to beneficially use those sediments. Continued source 
reduction efforts for both sediment and contaminants will assist in 
further reducing the need for open-water placement of dredged material 
in Long Island Sound. The EPA expects that federal, state and local 
agencies tasked with regulating those discharges into the watersheds 
tributary to Long Island Sound will exercise their authority under 
various statues and regulations in a continuing effort to reduce the 
flow of sediments and contaminants into state waterways and harbors.

B. Procedures

    The restrictions in the 2005 Rule established a Regional Dredging 
Team (RDT) to identify practicable alternatives to open-water disposal 
and recommend their use for projects proposed while the DMMP was being 
prepared. The RDT was effectively used to review six projects while the 
DMMP was being prepared and the experience of the RDT resulted in some 
of the recommendations in the DMMP. Consistent with the recommendations 
in the DMMP, EPA proposes to extend and redefine the role of the RDT to 
ensure that the Standards described above are utilized in evaluating 
proposed dredging projects in Long Island Sound.
    EPA proposes to retain the core linkage between the RDT and the 
USACE project approval process as described in the 2005 Rule (40 CFR 
228.15(b)(4)(vi)((I) and (I)(1)). Disposal of dredged material at the 
designated sites shall be allowed only if, after full consideration of 
recommendations provided by the RDT, the USACE finds (and the EPA does 
not object to such finding), based on a fully documented analysis, that 
for a given dredging project there are no practicable alternatives (as 
defined in 40 CFR 227.16(b)) to open-water disposal in Long Island 
Sound, or that any available alternative to open-water disposal will be 
fully utilized for the maximum volume of dredged material practicable.
    EPA proposes to amend the 2005 Rule to make more explicit the RDT's 
purpose, geographic scope, membership, structure and general process as 
described below.
1. Purpose of the Long Island Sound Regional Dredging Team (LIS RDT)
    The primary purpose of the LIS RDT is to reduce or eliminate 
wherever practicable the open-water disposal of dredged material in 
Long Island Sound. The LIS RDT will accomplish this by reviewing all 
proposed dredging projects subject to MPRSA (namely all federal 
projects and non-federal projects that generate greater than 25,000 
cubic yards) to assess whether there are practicable alternatives to 
open-water disposal, by recommending that any available alternative(s) 
to open-water disposal be utilized for the maximum volume of dredged 
material practicable, and to provide documented findings and 
recommendations to USACE on these points so that the USACE and the EPA 
can consider the LIS RDT's recommendations. The LIS RDT should review 
the alternatives analysis for all projects submitted to help ensure 
that available alternatives as described in the DMMP for each harbor 
and dredging center have been thoroughly evaluated and are implemented 
where practicable. While the LIS RDT will conduct project reviews and 
make submissions and recommendations to the USACE, the LIS RDT will not 
supplant the regulatory obligations or authorities of participant 
agencies under the MPRSA, CWA, CZMA or other applicable laws.
    Other purposes of the LIS RDT include: Serving as a forum for 
continuing exploration of new beneficial use alternatives to open-water 
disposal; promoting the use of such alternatives; and suggesting 
approaches for cost-sharing opportunities. For example, the LIS RDT 
could further investigate and develop opportunities for approving and 
funding long-term regional Confined Disposal Facilities which could 
accommodate suitable and unsuitable dredged material and provide 
environmental and social benefits such as parkland and habitat once 
filled and closed.
    The LIS RDT and its member agencies should also assist USACE and 
EPA in continuing a number of long term activities to continue the 
environmentally sound implementation of dredging and dredged material 
management in Long Island Sound. These activities include supporting 
USACE's dredged material tracking system, supporting USACE's DAMOS 
(Disposal Area Monitoring System) program and related efforts to study 
the long-term impacts of open-water placement, and promoting 
opportunities for beneficial use of clean, parent marine sediments 
often generated in the development of CAD cells.
2. Geographic Scope
    The geographic range of the LIS RDT would be expanded to include 
all of Long Island Sound and adjacent waters landward of the seaward 
edge of the territorial sea (three mile limit) or, in other words, from 
Throgs Neck to a line three miles east of the baseline across western 
Block Island Sound. These boundaries would encompass all harbors and 
areas included in the DMMP except Block Island. If any other disposal 
sites are designated within these boundaries, review of projects 
proposed to be disposed of at those sites would also be within the 
RDT's purview.
3. Membership
    The LIS RDT should include representatives from affected federal 
and state government organizations. EPA anticipates that federal 
participation would include EPA Regions 1 & 2; the New England and New 
York Districts and the North Atlantic Division of the USACE and the 
National Oceanic and Atmospheric Administration. EPA encourages the 
participation of the U.S. Navy, the U.S. Coast Guard and the U.S. Fish 
& Wildlife Service. EPA expects that the states of Connecticut, New 
York and Rhode Island would be participants through their environmental 
agencies, coastal zone management programs and relevant port 
authorities. EPA requests that, to the extent possible, member 
organizations will provide sufficient funding to enable their active 
participation in the LIS RDT.
4. Structure and Process
    EPA proposes that the specific details for structure (e.g., chair, 
committees, working groups) and process (e.g., how projects come before 
the LIS RDT, coordination with other entities) be left for the LIS RDT 
to determine and allowed to evolve as best accomplishes the team's 
purpose.
    The LIS RDT is encouraged to establish and maintain cooperative 
working relationships with other Long Island Sound-based organizations 
(e.g., the Long Island Sound Study's Science and Technical Advisory 
Committee, non-governmental organizations, relevant university-based 
programs) so that relevant scientific, program and policy information 
is effectively shared and resources are leveraged to the maximum 
extent. The LIS RDT is also encouraged to consider retaining the 
Technical Working Group as a means of apprising stakeholder groups of 
the progress being made on beneficial use alternatives and aiding in 
soliciting public views on new alternatives that may arise.
    Finally, EPA is proposing to revise 40 CFR 228.15(b)(4)(vi)(G) to 
retain only the provision that provides for a party to petition EPA if 
the party is not satisfied that EPA's 2016 amendments to the rule adopt 
procedures and standards to reduce or eliminate

[[Page 7060]]

wherever practicable disposal of dredged material in Long Island Sound 
to the greatest extent practicable, the party may petition the EPA to 
do a rulemaking to amend the designation to establish different or 
additional standards. The EPA will act on any such petition within 120 
days by either, granting the petition (and proposing a rule change) or 
denying the petition. Consistent with the 2005 Rule, a party will have 
the obligation to first petition the EPA prior to filing any court 
action.

IV. Compliance With Statutory and Regulatory Requirements

    The dredged material disposal site designation process that 
culminated in the 2005 Rule was conducted consistent with the 
requirements of the Marine Protection, Research, and Sanctuaries Act 
(MPRSA), the Clean Water Act (CWA), the National Environmental Policy 
Act (NEPA), the Coastal Zone Management Act (CZMA), the Endangered 
Species Act (ESA), and the Magnuson-Stevens Fishery Conservation and 
Management Act (MSFCMA). See 70 FR 32502 (June 3, 2005).
    EPA has determined that the proposed amendments to the 2005 Rule 
provide the same or greater protection of water quality and the marine 
environment and thus are also consistent with the laws noted above, as 
evaluated for the 2005 Rule. These proposed amendments do not make 
decisions about the suitability of any particular dredged material for 
open-water disposal or any other type of management of the material. 
Specific dredging projects will have to go through project-specific 
permitting evaluations to make those decisions. The proposed 
amendments, instead, provide specific standards and procedures that 
will further the goal of reducing or eliminating open-water disposal of 
dredged material at the CLDS and WLDS. Furthermore, EPA is not aware of 
any new information that would alter our prior conclusions that the 
disposal site designations, as restricted, comply with the MSFCMA, and 
will continue to do so with the proposed amendments to the 2005 Rule. 
To the extent that there are recurring requirements or new conditions 
under some of the applicable laws, the evaluation of the compliance of 
the proposed amendments with applicable requirements is described 
below.

1. Marine Protection, Research, and Sanctuaries Act (MPRSA)

    Consistent with MPRSA, EPA, in cooperation with the USACE, 
published final Site Management and Monitoring Plans for the two 
disposal sites in 2004, and they went into effect when the sites were 
designated by the 2005 Rule. Section 102(c)(3)(F) of MPRSA requires 
that plans be updated no less frequently than every ten years. EPA and 
USACE initiated revisions in 2015 to the two SMMPs and EPA expects to 
separately release the updated plans for public comment by March 1, 
2016. The draft revised SMMPs will be available at http://www3.epa.gov/region1/eco/lisdreg/eis.html.

2. National Environmental Policy Act (NEPA)

    As stated above, EPA prepared a Final Environmental Impact 
Statement in 2004 (the 2004 FEIS) to support designation of the CLDS 
and WLDS, which ultimately included the applicable use restrictions set 
forth in the 2005 Rule. EPA has determined that a Supplemental EIS is 
not needed for the proposed amendments to the 2005 Rule because the new 
information that EPA has considered is sufficient to show that proposed 
amendments will not affect the environment in a significant manner or 
to a significant extent not already considered.\3\ The proposed 
amendments retain and build on key substantive aspects of the original 
site use restrictions (see, e.g., 40 CFR 228.15(b)(4)(vi)(A), (B), (G), 
(J) and (K)). In addition, key aspects of these site use restrictions 
were themselves built upon various preexisting requirements from EPA's 
MPRSA regulations (see, e.g., 40 CFR 227.16(b) and 
228.15(b)(4)(vi)(J)). While EPA expects the proposed amendments to help 
foster reductions in the disposal of dredged material at the CLDS and 
WLDS by clarifying and retaining the application of existing site use 
restrictions, the environment will not be affected by the amendments in 
a significant manner, or to a significant extent, that has not already 
considered.
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    \3\ Recognizing that, as discussed previously, EPA is not 
legally required to prepare an EIS for a dredged material disposal 
site designation, but has exercised its discretion to do so under 
EPA's Voluntary NEPA Policy. (See 63 FR 58045 (Notice of Policy and 
Procedures for Voluntary Preparation of National Environmental 
Policy Act Documents), October 29, 1998).
---------------------------------------------------------------------------

    For example, unsuitable dredged material (i.e., material that does 
not satisfy the sediment quality criteria in EPA's MPRSA regulations) 
could not be disposed of in Long Island Sound even before the 2005 
Rule. This was specified in the 2005 Rule (see 40 CFR 
228.15(b)(4)(vi)(J)), and this specification would be retained in the 
new amendments. As another example, under the regulations prior to the 
2005 Rule, dredged material consisting of clean (i.e., suitable) sand 
should not have been disposed of in Long Island Sound when a 
practicable upland management alternative, such as a beach nourishment 
site or near shore placement, was available for the material. This 
remained the case under the 2005 Rule and will continue to be the case 
under the proposed amendments. Moreover, the likelihood of identifying 
practicable alternatives for dredged material should be greater given 
(1) the enhanced procedures involving the RDT that were created for the 
2005 Rule and will be retained and strengthened in the proposed 
amendments, and (2) the additional information concerning beneficial 
use options and management methods presented in the DMMP. At the same 
time, of course, the proposed amendments do not address any specific 
dredging projects, and the regulatory review of such projects will 
occur on a project-specific basis.
    In addition, the DMMP and the standards and procedures it 
recommends have been evaluated under NEPA. The USACE prepared a 
Programmatic Environmental Impact Statement (PEIS) for the LIS DMMP 
that also was completed on January 11, 2016. Throughout the NEPA 
process, EPA served as a cooperating agency. (See 40 CFR 1501.6 and 
1508.5.) For the Final PEIS, the USACE made adjustments to the Draft 
PEIS in response to comments provided by EPA. The Final PEIS, among 
other things, evaluates available or potentially developable dredged 
material management alternatives in the LIS DMMP, including those 
contemplated by the proposed amendment for the CLDS and WLDS, such as, 
open-water placement, confined aquatic disposal; coastal, nearshore, 
and upland beneficial use; and landfill placement. Accordingly, EPA 
hereby adopts the Final PEIS as part of the record for this proposed 
rule amendment pursuant to 40 CFR 1506.3. As stated previously, because 
the proposed amendment does not, by itself, authorize the disposal of 
dredged material from a particular project at either site, appropriate 
additional NEPA analysis will be performed during the permitting 
process for individual projects.

3. Coastal Zone Management Act (CZMA)

    Under the CZMA, EPA, like any other federal agency, is required to 
provide relevant states with a determination that any activity it 
proposes that could affect the uses or natural resources of a state's 
coastal zone is consistent to the

[[Page 7061]]

maximum extent practicable with the enforceable policies of the state's 
coastal zone management program. EPA has determined that the proposed 
amendments to the 2005 Rule are consistent with the enforceable 
policies of the coastal zone management programs of Connecticut and New 
York. EPA has provided each state with a written determination to this 
effect. EPA be will consulting with each state's coastal zone 
management program prior to final rulemaking, and the final 
determinations will be included in the record.

4. Endangered Species Act

    Since the 2005 Rule, the National Marine Fishery Service has listed 
the Atlantic sturgeon as an endangered species under the ESA. Parts of 
Long Island Sound are among the distinct population segments listed as 
endangered by NOAA, National Marine Fisheries Service (NMFS) in 2012. 
Consistent with ESA, EPA has initiated consultation with NMFS on this 
rulemaking action. The consultation includes EPA's review of the Site 
Management and Monitoring Plans (SMMPs) for the two disposal sites as 
described below.

V. Proposed Action

    EPA is publishing this Proposed Rule to amend the restrictions on 
the use of the CLDS and WLDS. This action is consistent with a number 
of the restrictions contained in the original designation of these 
sites in 2005. Some of those restrictions required the completion of a 
Dredged Materials Management Plan that would identify procedures and 
standards for reducing or eliminating the disposal of dredged material 
in Long Island Sound. Since the DMMP has been completed, EPA is 
proposing to remove the restrictions related to its development. The 
original restrictions further require EPA to propose, within 60 days of 
completion of the DMMP, amendments to the restrictions to incorporate 
procedures and standards consistent with those recommended in the DMMP 
for reducing or eliminating the disposal of dredged material in Long 
Island Sound. Today's proposal is intended to satisfy that requirement.

VI. Statutory and Executive Order Reviews

1. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action, as defined in 
the Executive Order, and was therefore not submitted to the Office of 
Management and Budget (OMB) for review.

2. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because it would not require persons to obtain, maintain, 
retain, report or publicly disclose information to or for a federal 
agency.

3. Regulatory Flexibility Act (RFA)

    This action will not have a significant economic impact on a 
substantial number of small entities under the Regulatory Flexibility 
Act (RFA). The amended restrictions in this proposed rule are only 
relevant for dredged material disposal projects subject to the MPRSA. 
Non-federal projects involving 25,000 cubic yards or less of material 
are not subject to the MPRSA and, instead, are regulated under CWA 
section 404. This action will, therefore, have no effect on such 
projects. ``Small entities'' under the RFA are most likely to be 
involved with smaller projects not covered by the MPRSA. Therefore, EPA 
does not believe a substantial number of small entities will be 
affected by today's rule. Furthermore, the proposed amendments to the 
restrictions also will not have significant economic impacts on a 
substantial number of small entities because they primarily will create 
requirements to be followed by regulatory agencies rather than small 
entities, and will create requirements (i.e., the standards and 
procedures) intended to help ensure that the existing regulatory 
requirement (see 40 CFR 227.16) that practicable alternatives to the 
ocean dumping of dredged material be utilized.

4. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

5. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

6. 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 proposed restrictions will not have 
substantial direct effects on Indian tribes, on the relationship 
between the federal government and Indian Tribes, or the distribution 
of power and responsibilities between the federal government and Indian 
Tribes. EPA consulted with the affected Indian tribes in making this 
determination.

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

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because the EPA does not believe the environmental health or safety 
risks addressed by this action present a disproportionate risk to 
children.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

9. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes the human health or environmental risk addressed 
by this action will not have a disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations.

11. Executive Order 13158: Marine Protected Areas

    Executive Order 13158 (65 FR 34909, May 31, 2000) requires EPA to 
``expeditiously propose new science-based regulations, as necessary, to 
ensure appropriate levels of protection for the marine environment.'' 
EPA may take action to enhance or expand protection of existing marine 
protected areas and to establish or recommend, as appropriate, new 
marine protected areas. The purpose of the Executive Order is to 
protect the significant natural and cultural resources within

[[Page 7062]]

the marine environment, which means, ``those areas of coastal and ocean 
waters, the Great Lakes and their connecting waters, and submerged 
lands thereunder, over which the United States exercises jurisdiction, 
consistent with international law.''
    The EPA expects that this proposed rule will afford additional 
protection to the waters of Long Island Sound and organisms that 
inhabit them. Building on the existing protections of the MPRSA and the 
ocean dumping regulations, the proposed regulatory amendments are 
designed to promote the reduction of open-water disposal of dredged 
material in Long Island Sound.

12. Executive Order 13547: Stewardship of the Ocean, Our Coasts, and 
the Great Lakes

    Section 6(a)(i) of Executive Order 13547, (75 FR 43023, July 19, 
2010) requires, among other things, that EPA and certain other agencies 
``. . . to the fullest extent consistent with applicable law [to] . . . 
take such action as necessary to implement the policy set forth in 
section 2 of this order and the stewardship principles and national 
priority objectives as set forth in the Final Recommendations and 
subsequent guidance from the Council.'' The policies in section 2 of 
Executive Order 13547 include, among other things, the following: ``. . 
. it is the policy of the United States to: (i) Protect, maintain, and 
restore the health and biological diversity of ocean, coastal, and 
Great Lakes ecosystems and resources; (ii) improve the resiliency of 
ocean, coastal, and Great Lakes ecosystems, communities, and economies. 
. . .'' As with Executive Order 13158 (Marine Protected Areas), the 
overall purpose of the Executive Order is to promote protection of 
ocean and coastal environmental resources.
    The EPA expects that this proposed rule will afford additional 
protection to the waters of Long Island Sound and organisms that 
inhabit them. Building on the existing protections of the MPRSA and the 
ocean dumping regulations, the proposed regulatory amendments are 
designed to promote the reduction or elimination of open-water disposal 
of dredged material in Long Island Sound.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: February 1, 2016.
H. Curtis Spalding,
Regional Administrator, EPA Region 1-New England.

    For the reasons stated in the preamble, title 40, Chapter I, of the 
Code of Federal Regulations is proposed to be amended as set forth 
below.

PART 228--CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN 
DUMPING

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(b) is amended by:
0
a. Revising paragraphs (b)(4) introductory text and (b)(4)(i) and (v) 
and (b)(4)(vi) introductory text;
0
b. Removing paragraphs (b)(4)(vi)(C) through (F);
0
c. Adding new paragraph (b)(4)(vi)(D);
0
d. Adding new paragraph (b)(4)(vi)(E);
0
e. Redesignating paragraph (b)(4)(vi)(G) as (b)(4)(vi)(F) and revising 
it;
0
f. Removing paragraph (b)(4)(vi)(H);
0
g. Redesignating paragraph (b)(4)(vi)(I) as (b)(4)(vi)(C) and revising 
it;
0
h. Redesignating paragraph (b)(4)(vi)(J) through (L) as (b)(4)(vi)(G) 
through (I), respectively;
0
i. Removing paragraph (b)(4)(vi)(M);
0
j. Redesignating paragraph (b)(4)(vi)(N) as (b)(4)(vi)(J); and
0
k. Revising paragraphs (b)(5) introductory text and (b)(5)(v).
    The revisions and additions read as follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (b) * * *
    (4) Central Long Island Sound Dredged Material Disposal Site 
(CLDS).
    (i) Location: Corner Coordinates (NAD 1983) 41[deg]9.5' N., 
72[deg]54.4' W.; 41[deg]9.5' N., 72[deg]51.5' W.; 41[deg]08.4' N., 
72[deg]54.4' W.; 41[deg]08.4' N., 72[deg]51.5' W.
* * * * *
    (v) Period of use: Continuing use.
    (vi) Restrictions: The designation in this paragraph (b)(4) sets 
forth conditions for the use of Central Long Island Sound (CLDS) and 
Western Long Island Sound (WLDS) Dredged Material Disposal Sites. These 
conditions apply to all disposal subject to the MPRSA, namely, all 
federal projects and nonfederal projects greater than 25,000 cubic 
yards. All references to ``permittees'' shall be deemed to include the 
U.S. Army Corps of Engineers (USACE) when it is authorizing its own 
dredged material disposal from a USACE dredging project. The conditions 
for this designation are as follows:
* * * * *
    (C) Disposal of dredged material at the designated sites pursuant 
to the designation in this paragraph (b)(4) shall be allowed only if, 
after full consideration of recommendations provided by the Long Island 
Sound Regional Dredging Team (LIS RDT), the USACE finds (and the EPA 
does not object to such finding), based on a fully documented analysis, 
that for a given dredging project:
    (1) There are no practicable alternatives (as defined in 40 CFR 
227.16(b)) to open-water disposal in Long Island Sound. Any available 
practicable alternative to open-water disposal will be fully utilized 
for the maximum volume of dredged material practicable;
    (2) Determinations relating to paragraph (b)(4)(vi)(C)(1) of this 
section will recognize that any alternative to open-water disposal may 
add additional costs. Disposal of dredged material at the designated 
sites pursuant to this paragraph (b)(4) shall not be allowed to the 
extent that a practicable alternative is available.
    (3) The following standards for different dredged material types 
have been appropriately considered:
    (i) Unsuitable material. Any materials proposed for dredging that 
have been determined by physical, chemical and biological testing to be 
unsuitable for open-water placement shall not be disposed of at the 
designated sites.
    (ii) Suitable sandy material. Coarse-grained material, which 
generally may include up to 20 percent fines when used for direct beach 
placement, or up to 40 percent fines when used for nearshore bar/berm 
nourishment, should be used for beach or nearshore bar/berm nourishment 
or other beneficial use whenever practicable.
    (iii) Suitable fine-grained material. This material has typically 
greater than 20 to 40 percent fine content and, therefore, is not 
typically considered appropriate for beach or nearshore placement, but 
has been determined to be suitable for open-water placement by testing 
and analysis. Materials dredged from upper river channels in the 
Connecticut, Housatonic and Thames Rivers, whenever possible, should be 
disposed of at existing Confined Open Water sites, on-shore or through 
in-river placement. Other beneficial uses such as marsh creation, 
should be examined and used whenever practicable. If no other 
alternative is determined to be practicable, suitable fine-grained 
material may be placed at the designated sites.

[[Page 7063]]

    (D) Source reduction. Efforts to control sediment entering 
waterways can reduce the need for maintenance dredging of harbor 
features and facilities by reducing shoaling rates. Federal, state and 
local agencies tasked with regulating discharges into the watershed 
should continue to exercise their authorities under various statues and 
regulations in a continuing effort to reduce the flow of sediments into 
state waterways and harbors.
    (E) The goal of the Long Island Sound Regional Dredging Team (LIS 
RDT) is to reduce or eliminate wherever practicable the open-water 
disposal of dredged material. The LIS RDT's purpose, geographic scope, 
membership, organization and procedures are provided as follows:
    (1) Purpose. The LIS RDT's primary purpose is to conduct the review 
of dredging projects and make recommendations as described in paragraph 
(vi)(C) above. The LIS RDT shall also: Serve as a forum for continuing 
exploration of new beneficial use alternatives to open-water disposal; 
promote the use of such alternatives; and suggest approaches for cost-
sharing opportunities. The LIS RDT and its member agencies should also 
assist USACE and EPA in continuing long term activities intended to 
track disposal of dredged material and monitor dredging impacts in Long 
Island Sound. These activities include supporting USACE's dredged 
material tracking system, supporting USACE's DAMOS (Disposal Area 
Monitoring System) program and related efforts to study the long-term 
impacts of open-water placement, and promoting opportunities for 
beneficial use of clean, parent marine sediments often generated in the 
development of CAD cells.
    (2) Geographic scope. The geographic scope of the LIS RDT includes 
all of Long Island Sound and adjacent waters landward of the seaward 
boundary of the territorial sea (three-mile limit) or, in other words, 
from Throgs Neck to a line three miles seaward of the baseline across 
western Block Island Sound.
    (3) Membership. The LIS RDT shall be comprised of representatives 
from affected federal and state government organizations.
    (4) Organization and procedures. Specific details regarding 
structure (e.g., chair, committees, working groups) and process shall 
be determined by the RDT and may be revised as necessary to best 
accomplish the team's purpose.
    (F) If any party is not satisfied that EPA's 2016 amendments to 
this rule adopt procedures and standards to reduce or eliminate 
wherever practicable disposal of dredged material in Long Island Sound 
to the greatest extent practicable, the party may petition the EPA to 
do a rulemaking to amend the designation to establish different or 
additional procedures and standards. The EPA will act on any such 
petition within 120 days by either, granting the petition (and 
proposing a rule change) or denying the petition.
    (5) Western Long Island Sound Dredged Material Disposal Site 
(WLDS).
* * * * *
    (v) Period of use: Continuing use.
* * * * *
[FR Doc. 2016-02585 Filed 2-9-16; 8:45 am]
BILLING CODE 6560-50-P