[Federal Register Volume 81, Number 130 (Thursday, July 7, 2016)]
[Rules and Regulations]
[Pages 44220-44230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16147]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R01-OW-2016-0068; FRL-9948-61-Region 1]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) today is amending 
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 regulations incorporate 
standards and procedures for the use of those sites consistent with 
those 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 the open-
water disposal of dredged material.

DATES: This final regulation is effective on August 8, 2016.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R01-OW-2016-0068. All documents in the docket 
are listed on the http://www.regulations.gov Web site. Publically 
available docket materials are also available from EPA's Web site 
https://www.epa.gov/ocean-dumping/dredged-material-management-long-island-sound.

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].

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

I. Background
II. Response to Comments
III. Changes From the Proposed Rule
IV. Compliance With Statutory and Regulatory Requirements
V. Final Action
VI. Statutory and Executive Order Reviews

I. Background

    On February 10, 2016, EPA published in the Federal Register (81 FR 
7055) a proposed rule (the Proposed Rule) amending federal regulations 
that designated, and placed restrictions on the use of, the Central 
Long Island Sound (CLDS) and Western Long Island Sound (WLDS) dredged 
material disposal sites, located offshore from New Haven and Stamford, 
Connecticut, respectively. The existing restrictions on the sites were 
imposed when EPA designated CLDS and WLDS (70 FR 32498) (the 2005 
Rule), 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 the disposal of dredged material in 
Long Island Sound.
    To support this goal, the restrictions in the 2005 Rule 
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. The amended restrictions in this Final Rule 
incorporate standards and procedures for the use of those sites 
consistent with those recommended in the Long Island Sound DMMP, which 
was completed by the U.S. Army Corps of Engineers (USACE) on January 
11, 2016.
    The restrictions imposed on the sites in the 2005 Rule also 
included conditions that specified that use of the sites would be 
suspended if, within 120 days of completion of the DMMP, and subject to 
EPA's consideration of public comments, 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 
issues the required final rule.

II. Response to Comments

    EPA received comments on the Proposed Rule from 119 individuals, 
groups or entities. Comments were received from the Connecticut 
Congressional Delegation, USACE, the states of Connecticut and New 
York, a number of municipalities, environmental groups, harbor and 
marine trade groups, and many private citizens. Approximately eighty 
percent of the commenters supported the Proposed Rule, with some 
offering suggested improvements. The remainder expressed opposition in 
part or in whole to the Proposed Rule. A document containing copies of 
all of the public comments received by EPA and a document containing 
EPA's response to each of the comments have been placed in the public 
docket and on the Web site identified in the ADDRESSES section of this 
document. There was significant overlap among the comments received. 
Below, EPA summarizes the main points of the commenters and provides 
responses.
    Comment #1. A number of commenters, including the states of 
Connecticut and New York, asked that EPA be explicit in retaining the 
common goal of the 2005 Rule--to reduce or eliminate open-water 
disposal of dredged material in Long Island Sound.
    Response #1. EPA did not intend to signal any change to the goal of 
the 2005 Rule. In fact, the goal was so stated in the first paragraph 
of the Background section of the Proposed Rule. EPA did not include the 
goal statement in the proposed regulations because it was previously 
included in a provision addressing development of the DMMP and EPA 
deleted that provision because the DMMP had been completed. Again, EPA 
did not by this deletion intend to signal a change in the goal. 
Therefore, to address this comment, EPA has added a sentence, restating 
the common goal, in the introductory paragraph (b)(4)(vi) in the Final 
Rule.
    Comment #2. The states of Connecticut and New York proposed similar 
ideas for revisions to the Proposed Rule intended to spur increased 
beneficial use and result in staged reductions in open water

[[Page 44221]]

disposal of dredge material over time. The suggested revisions include 
creation of a Steering Committee, consisting of high level 
representatives from the states, EPA and USACE. The comments propose 
that the charge to the Steering Committee would be to develop a 
baseline for the amount of dredged material being placed in open water 
and the amount being beneficially used, and to establish a reasonable 
and practicable series of stepped objectives (with timeframes) for 
reducing the amount of open-water placement and increasing the amount 
of beneficially used material, while also recognizing that there will 
be fluctuations in annual volumes of dredged material generated due to 
the very nature of the dredging program. The comments also call for the 
stepped objectives to incorporate an adaptive management approach 
toward continuous improvement, and for the charge to the Steering 
Committee also to include developing accurate methods to track 
reductions, with due consideration for annual fluctuations in the 
amount of dredging, and reporting on progress. The comments suggest 
that when tracking progress, it would be recognized that exceptional 
circumstances may result in delays in meeting an objective. Exceptional 
circumstances should be infrequent, irregular and unforeseeable. 
Certain other commenters also supported the inclusion of a staged 
reduction in open-water disposal.
    Response #2. EPA agrees with Connecticut and New York that it would 
be useful to formally establish the Long Island Sound Steering 
Committee (Steering Committee), consisting of high level 
representatives from the two states, EPA, USACE, and, as appropriate, 
other federal and state agencies. A Steering Committee, consisting of 
the same parties, was established previously to guide the development 
of the DMMP and has provided a useful forum for interagency 
collaboration on dredged material management in the Long Island Sound 
region. Other participants could include the National Oceanic and 
Atmospheric Administration's (NOAA) National Marine Fisheries Service 
(NMFS), which had a seat on the previous Steering Committee, and the 
state of Rhode Island, which had a seat on the previous Long Island 
Sound Regional Dredging Team (LIS RDT), and may have more interest now 
that the LIS RDT's geographic scope includes eastern Long Island Sound. 
Consistent with the comments, the Final Rule includes a provision 
establishing a Steering Committee to provide policy-level direction to 
the LIS RDT and facilitate high-level collaboration among the agencies 
critical to accelerating the development and use of beneficial 
alternatives for dredged material.
    The charge to the Steering Committee includes: Developing a 
baseline for the volume and percentage of dredged material being placed 
in open water and the volume and percentage being beneficially used; 
establishing a reasonable and practicable series of stepped objectives 
(with timeframes) for reducing the amount of dredged material placed in 
open-water sites and increasing the amount of material that is 
beneficially used, while also recognizing that there will be 
fluctuations in annual volumes of dredged material generated due to the 
very nature of the dredging program; and developing methods for 
accurately tracking reductions with due consideration for annual 
fluctuations. EPA agrees, and has provided, that the stepped objectives 
should incorporate an adaptive management approach toward continuous 
improvement. The Final Rule also provides that, when tracking progress, 
the Steering Committee will recognize that exceptional circumstances 
may result in delays in meeting an objective, and that exceptional 
circumstances should be infrequent, irregular and unpredictable. In 
carrying out its tasks, the Steering Committee will guide and utilize 
the LIS RDT, as appropriate.
    To be clear, neither the 2005 Rule nor the new amendments to the 
Rule require or command either Connecticut or New York (or Rhode 
Island) to participate on the Steering Committee or the LIS RDT. 
Participation by the states is voluntary. That said, EPA expects that 
the states will choose to participate on the Steering Committee and the 
LIS RDT. This expectation is based on several factors: (1) Connecticut 
and New York both commented in favor of constituting a Steering 
Committee and LIS RDT as discussed above; (2) the Steering Committee 
and LIS RDT will provide a dedicated venue for federal/state inter-
agency communication and collaboration on dredging and dredged material 
disposal projects of interest and these sorts of discussions already 
take place and are often necessary due to the legal and programmatic 
responsibilities of the various agencies; and (3) New York, 
Connecticut, and Rhode Island participated on the LIS RDT created under 
the 2005 Rule and New York and Connecticut participated on the Steering 
Committee associated with development of the DMMP. Given that EPA 
anticipates that Connecticut and New York, and possibly Rhode Island, 
will voluntarily participate on the Steering Committee and the LIS RDT, 
EPA also expects that each of the agencies will commit the necessary 
resources to make that participation on the Steering Committee and LIS 
RDT meaningful, including resources needed to support collection of 
data for establishing the baseline and tracking and reporting on the 
future disposition of dredged materials.
    Comment #3. Some commenters encouraged giving increased attention 
to implementation, as distinguished from simply identification, of 
feasible alternatives, and encouraged funding demonstration/pilot 
programs for alternative methods of beneficial use. They noted the 
importance of the states and all stakeholders working together to find 
and promote alternative uses for dredged material and encouraged the 
states to amend regulations to facilitate beneficial, environmentally 
sound use of suitable materials upland. The states of Connecticut and 
New York expressed their commitment to working with federal and state 
partners to develop and promote the use of innovative and practicable 
alternatives to open water disposal. Activities that may facilitate and 
establish a path forward include committing to jointly implement two 
pilot projects, identifying possible resources, and removing regulatory 
hurdles.
    Response #3. EPA agrees with the commenters that a concerted, 
collaborative effort among state and federal partners will be needed to 
spur greater use of beneficial alternatives, including piloting 
alternatives, identifying possible resources, and eliminating 
regulatory barriers, when appropriate. EPA believes the Steering 
Committee should guide these efforts, with the support of the LIS RDT, 
and has included this among the responsibilities of the Steering 
Committee and LIS RDT in the Final Rule.
    Comment #4. The states of Connecticut and New York expressed 
support for EPA's proposal to charge the LIS RDT to review each project 
and require beneficial use of dredged material, where practicable, 
utilizing the EPA definition of practicable. They felt it was important 
to note that the LIS RDT should be consulted starting in the early 
stages of project planning for consideration of beneficial use 
opportunities.
    Response #4. EPA agrees that the LIS RDT will be most effective in 
its role reviewing dredging projects if it is actively encouraging 
beneficial use alternatives and if there is an expectation that 
dredging project

[[Page 44222]]

proponents should consult with the LIS RDT early in the process of 
planning a project to have a full view of possible alternatives for 
their project. The Final Rule contains language clarifying this aspect 
of the LIS RDT review process. It also should be noted that the LIS RDT 
makes recommendations to the USACE; the LIS RDT does not directly 
``require'' that dredged material be managed in any particular way.
    In response to this comment and Comment #5 below, the Final Rule 
clarifies certain of the roles and expectations of the LIS RDT. It 
establishes the relationship between the Steering Committee, which 
provides policy-level direction to the LIS RDT, and the LIS RDT, which 
has the responsibility for execution. It also provides additional 
detail on the organization and procedures for the LIS RDT. EPA views 
the charter under which the LIS RDT has operated during the development 
of the DMMP as a useful starting point for a new charter that 
encompasses the new roles, responsibilities, and makeup of the LIS RDT. 
The current LIS RDT charter will serve as the interim guide for the LIS 
RDT's process until a new charter is developed.
    Comment #5. USACE believes the role of the LIS RDT should be one of 
an informational resource and collaborator rather than a body charged 
with providing ``recommendations'' to the Corps. They raised concerns 
regarding whether the role of the LIS RDT is in compliance with the 
Federal Advisory Committee Act (FACA) since it is required to provide 
``recommendations'' to the USACE.
    Response #5. EPA notes that the 2005 Rule established the LIS RDT 
and charged it with making ``recommendations'' until the completion of 
the DMMP. The Proposed Rule incorporated the same language in providing 
for the LIS RDT to continue into the future. The ``recommendations'' of 
the LIS RDT are not formal decisions subject to appeal, but, rather, 
are advice to the USACE as to how the LIS RDT thinks particular dredged 
material should be managed. The LIS RDT will attempt to make consensus 
recommendations to the USACE, but if consensus cannot be achieved, 
individual LIS RDT member agencies may offer their own comments through 
the standard regulatory process. Presumably, recommendations will be 
based upon whether or not the LIS RDT (or an individual agency) 
believes it has identified one or more practicable alternatives to 
open-water disposal for a particular project.
    Recommendations from the LIS RDT or its members are not binding 
upon the USACE, EPA or any other state or federal agency. While the 
USACE must fully consider the recommendations, EPA does not intend for 
the LIS RDT to in any way usurp the USACE's authority to make 
independent decisions regarding the placement of dredged material. At 
the same time, the USACE's decisions regarding whether to authorize 
dredged material disposal under the MPRSA continue to be subject to EPA 
review and concurrence under Section 103(c) of the MPRSA, 33 U.S.C. 
1413(c), and 40 CFR 225.2. While EPA will also consider recommendations 
of the LIS RDT or its members, EPA also does not intend for the LIS RDT 
to in any way usurp EPA's authority to make independent decisions in 
its review of USACE decisions regarding whether to authorize the open-
water disposal of dredged material.
    EPA does not intend for the LIS RDT, in the exercise of its 
responsibility to review projects, to unduly delay the USACE's 
decision-making. EPA expects that the LIS RDT will report to the USACE 
on its review of specific projects within 30 days of receipt of project 
information. If the LIS RDT fails to report to the USACE in this 
timeframe, the USACE may proceed with its permit decision process. The 
Final Rule contains language clarifying this point.
    Regarding USACE's concerns about the FACA, EPA has carefully 
reviewed the roles of the LIS RDT and Steering Committee as contained 
in the Final Rule and finds that the LIS RDT and Steering Committee are 
exempt from the FACA under 2 U.S.C. 1534(b). See also Memorandum by the 
Office of Management and Budget (OMB) entitled, ``SUBJECT: Guidelines 
and Instructions for Implementing Section 204, `State, Local, and 
Tribal Government Input,' of Title II of P.L. 104-4'' (Sept. 21, 1995). 
At the same time, creating federal/state committees such as the LIS RDT 
and Steering Committee to share information and advice and 
recommendations is also consistent with the FACA and relevant 
implementing guidance from OMB.
    Comment #6. New York State requested that, to provide additional 
``surety'' that the goal of reducing or eliminating open water disposal 
is met, an additional provision be included in the rule to provide that 
if there is an initial failure to maintain or reduce the amount of 
disposal over the next ten years, as measured at year 10, then the rule 
can be re-opened upon a petition to EPA.
    Response #6. EPA is confident that the restrictions contained in 
today's Final Rule will be sufficient to make progress toward the goal 
of reducing or eliminating open-water disposal. However, if the volume 
of dredged material disposed of at the sites, as measured ten years 
from now, has increased, it may be an indication that the standards and 
procedures contained in the Final Rule have not succeeded as intended. 
Alternatively, it may indicate that despite successful efforts to 
maximize dredged material management by methods other than open-water 
disposal, it is even more difficult to identify or develop such 
alternative methods of dredged material management than is currently 
anticipated. In either case, EPA agrees that it is reasonable to 
include an explicit provision in the Final Rule that provides any party 
with the opportunity under these circumstances to petition EPA to amend 
the regulations. EPA has added paragraph (b)(4)(vi)(H) to the Final 
Rule, to provide for this. EPA has not, however, prejudged whether it 
will find any regulatory amendments to be appropriate. EPA will assess 
and decide upon any such petition based on the facts and law prevailing 
at the time of the petition.
    Comment #7. Several commenters noted that cost should not be the 
overwhelming factor in the decision-making process. In their view, cost 
seems only assigned to beneficial use. They believe cost and potential 
funding mechanisms for greater use of alternatives should be included.
    Response #7. Cost is a very important component of the decision-
making process. USACE is constrained by statute, regulation, and 
policies that govern what they can use federal funds for. The Federal 
Base Plan for any particular project is defined as the least cost, 
environmentally acceptable alternative for constructing the project 
that is consistent with sound engineering practices. Thus, projects are 
planned, designed and constructed in a manner that efficiently uses 
very limited federal fiscal resources and that meets applicable 
environmental standards. The term Federal Standard is often used 
synonymously with Federal Base Plan, and is defined in USACE 
regulations as the least costly dredged material placement alternative 
identified by the USACE that is consistent with sound engineering 
practices and meets the environmental standards established by EPA's 
Clean Water Act (CWA) Sec.  404(b)(1) guidelines evaluation process or 
EPA's ocean dumping criteria under the MPRSA. [33 CFR 335.7] See also 
33 CFR 336.1(c)(1).
    If a beneficial use is selected for a project and that beneficial 
use happens

[[Page 44223]]

to be (or be part of) the Federal Base Plan option for the project, the 
costs of that beneficial use are assigned to the navigational purpose 
of the project. Beneficial use project costs exceeding the cost of the 
Federal Base Plan (Federal Standard) option become either a shared 
federal and non-federal responsibility, or entirely a non-federal 
responsibility, depending on the type of beneficial use and the 
applicability of federal funding authority.
    The DMMP makes clear the USACE's willingness to use the authorities 
available to it to pay for what it lawfully can. The authorities that 
allow USACE to pursue alternatives beyond the Base Plan all require 
some prescribed percentage of non-federal cost-sharing. Identifying 
future sources of non-federal cost sharing is one of the important 
challenges for the Steering Committee and LIS RDT.
    Beyond trying to find funding sources for costs above the Federal 
Standard, another important role for the LIS RDT is to identify 
incentives and remove barriers to beneficial use such that the cost of 
alternatives becomes more competitive with open-water disposal. It has 
become clear in recent years that sandy dredged material is a valuable 
commodity, especially along New England's beachfronts. Thus there are 
economic as well as environmental factors that result in most suitable 
sandy dredge material being used beneficially, principally for beach 
and nearshore bar nourishment. The next challenge is to find economic 
and beneficial environmental uses for suitable silty material. As 
coastal resiliency becomes an increasingly important priority, EPA is 
hopeful that, and thinks that there is a good chance that, 
opportunities for beneficial uses of silty material will emerge and 
expand.
    Comment #8. USACE expressed concern that the Proposed Rule could 
have a significant adverse impact on federal navigation by potentially 
adding significant costs to USACE projects. Specifically, the USACE is 
concerned that a scenario could arise where a practicable alternative 
is identified that exceeds the Federal Standard and therefore would 
require a non-federal sponsor to fund the difference in cost. If a non-
federal sponsor could not do so or refused to do so, disposal at the 
CLDS or WLDS would then be prohibited and the project could not go 
forward because of the existence of a practicable alternative to open-
water disposal. As such, this provision of the Proposed Rule would 
impact the USACE's application of the Federal Standard and negatively 
impact maintenance of Federal Navigation Projects in Long Island Sound. 
The USACE also expressed a related concern that the requirement that 
any practicable alternative be fully utilized for the maximum volume of 
material practicable could require USACE to dispose of material at more 
than one location, potentially adding significant cost.
    The concern about the possibility that a project might not go 
forward was echoed by the Connecticut Congressional Delegation. In 
order to effectively maintain the balance between environmental and 
economic benefits of Long Island Sound, they urged that some certainty 
regarding the potential cost of maintenance projects must be included 
in the final language. Knowing the makeup of dredged material from each 
navigation project is different, they understand that placement 
alternatives need to be examined on a case-by-case basis. They noted 
that EPA itself recognizes in the Proposed Rule that the lack of 
clarity on future project costs ``could result in deferral of 
maintenance or improvement projects that could impact navigation.'' The 
delegation expressed hope that the Final Rule will more clearly address 
this issue.
    Response #8. The term ``practicable alternative'' is defined in 40 
CFR 227.16(b) of EPA's MPRSA regulations as an alternative that 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.'' The 
definition has been part of the restrictions on the CLDS and WLDS since 
the 2005 Rule (compare (b)(4)(vi)(I)(1) and (2) in the 2005 Rule with 
(b)(4)(vi)(C)(1) and (2) in the Proposed Rule). The accompanying 
discussions in the preamble of the 2005 Rule and the Proposed Rule are 
essentially the same. In the nearly eleven years that the restrictions 
have been in place there have been no instances where a dredging 
project could not go forward on this basis. Furthermore, neither the 
2005 Rule nor the current amendments create a new definition of 
practicable; they simply cross-reference and rely upon the pre-existing 
definition in EPA's regulations at 40 CFR 227.16(b), which was 
promulgated in 1977. 42 FR 2476, 2479 (Jan. 11, 1977). Meanwhile, the 
USACE defines ``practicable'' as follows: ``Practicable means available 
and capable of being done after taking into consideration cost, 
existing technology, and logistics in light of overall project 
purposes.'' 33 CFR 335.7.
    The possibility that EPA and USACE might disagree whether or not an 
alternative is ``practicable'' is rooted, in part, in the fact that the 
two agencies have different regulatory definitions of the term 
``practicable.'' That difference has existed since at least 1988, when 
the USACE's current regulatory definition was promulgated. At the same 
time, although the two definitions are different, they are similar and 
have important commonalities. Under both definitions, a practicable 
alternative must be available taking cost and other factors into 
consideration. As a result, EPA expects that it would be an unusual 
case in which the two definitions would lead to different conclusions 
about an alternative's practicability. Indeed, EPA is unaware of any 
project in New England that has been stopped due to the difference in 
definitions.
    In any event, EPA's definition of ``practicable'' and its 
application do not directly affect the USACE's definition of the 
Federal Standard. If EPA determines that an alternative is 
``practicable,'' then non-federal sponsors will need to be found to pay 
for the incremental cost above what the USACE can legally participate 
in. One of the important roles of the Steering Committee and LIS RDT 
described earlier, is the identification and piloting of beneficial use 
alternatives, identifying possible resources, and eliminating 
regulatory barriers. EPA expects that the Steering Committee and LIS 
RDT will, generally and on a project specific basis, facilitate the 
process of matching projects, beneficial use alternatives, and the 
resources necessary to implement them, thus mitigating the risk that a 
project cannot proceed.
    EPA's definition of ``practicable'' requires that the alternative 
be ``available at reasonable incremental cost.'' Said differently, by 
definition, a ``practicable alternative'' will not impose unreasonable 
incremental cost. This would apply as well to the consideration of 
multiple potential management alternatives for dredged material from a 
single project, a scenario that the USACE in concerned might add 
significant costs. Again, incremental costs could not be unreasonable 
without also rendering the alternative impracticable. As noted in the 
preamble to the Proposed Rule, 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 EPA believes that the determination 
is best made on a case-by-

[[Page 44224]]

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.
    EPA cannot eliminate in advance the possibility that no entity will 
have the means to pay the non-federal share of an alternative EPA has 
determined is practicable, whether in Long Island Sound or anywhere 
else in the country. However, in Long Island Sound, with the states and 
federal agencies working in partnership to implement beneficial use 
alternatives, EPA believes that the likelihood of a project not going 
forward because of a lack of funding for the reasonable incremental 
cost of a practicable alternative has been made as remote as possible.
    Comment #9. Many commenters noted that dredging is necessary to 
ensure recreational and commercial access to Long Island Sound. 
Marinas, boatyards, and boat clubs are the main access for the public 
to get out onto the Sound and they need to dredge periodically to 
maintain sufficient depth for safe navigation. Dredging is necessary to 
ensure the existence of commercial and recreational industries that 
generate billions of dollars and support thousands of jobs around the 
Sound. An important element of state coastal zone management programs--
to retain, promote, and enhance access to waterways--will be harmed if 
the public and marine industry cannot access the Sound.
    Response #9. EPA agrees that dredging to provide for safe 
navigation to and from Long Island Sound is a necessary activity and 
acknowledges that the marine trade industry is an important contributor 
to the economy of both states in the Long Island Sound region. The 
policy goals of the Coastal Zone Management Act are to ``preserve, 
protect, develop, and where possible, to restore or enhance, the 
resources of the Nation's coastal zone.'' This includes achieving wise 
use of the land and water resources of the coastal zone, giving full 
consideration to ecological, cultural, historic, and esthetic values as 
well as the needs for compatible economic development. EPA agrees that 
providing public access to the coasts for recreation purposes is an 
important goal of coastal zone management programs. EPA notes that the 
protection of natural resources, including wetlands, floodplains, 
estuaries, beaches, dunes, barrier islands, coral reefs, and fish and 
wildlife and their habitat, within the coastal zone is also an 
important goal. EPA, USACE, NOAA, and the state coastal zone management 
programs seek to harmonize these goals.
    Comment #10. Numerous commenters believe there needs to be an open-
water placement option for dredged material. They express concern that 
without an open-water option, dredging will become prohibitively 
expensive.
    Response #10. EPA agrees that there is a need for open-water 
disposal sites in Central and Western Long Island Sound as was 
demonstrated when EPA designated the sites in 2005 and has been 
reaffirmed by the DMMP. EPA is retaining these sites as open-water 
placement options for the long term. However, the Final Rule also 
reaffirms that the overarching goal is to reduce or eliminate wherever 
practicable the open-water disposal of dredged material. The amendments 
make clear that unsuitable material shall not be disposed of at the 
sites, that sandy material should be used beneficially in almost all 
cases, and that alternatives to open-water placement of silty material 
should be thoroughly considered, and used whenever practicable, before 
open-water placement is allowed.
    Comment #11. Commenters had mixed views concerning the Long Island 
Sound DMMP. Some feel the DMMP provides useful information on what 
should be done with dredged material and how these projects should be 
managed. Others feel the DMMP is insufficient and will perpetuate the 
status quo and EPA cannot rely solely on the DMMP in amending the rule. 
Rather they assert that EPA must amend the rule to establish additional 
procedures and standards that will result in clear, staged reductions 
in open-water disposal of dredged material over time.
    Response #11. EPA believes the DMMP provides very useful 
information for managing toward the goal of reducing or eliminating the 
open-water disposal of dredged materials in the Sound. The DMMP 
provides recommended standards and procedures as well as identifying 
potential alternatives to open water disposal for each of the 52 
federal navigation projects in Long Island Sound. The Final Rule builds 
on the procedures recommended in the DMMP and provides a strong 
management framework for achieving the goal of reducing or eliminating 
open-water disposal with the addition of the Steering Committee and its 
responsibilities, as described in Response #2.
    Comment #12. Some commenters believe disposal of any dredged 
material in the Sound should not be allowed to continue. They believe 
open water disposal does not make environmental sense, will have a 
negative impact on the ecosystem of Long Island Sound, and that toxic 
or contaminated sediment should not be dumped in the Sound.
    Response #12. As noted above, EPA thinks, many commenters 
acknowledge, and the DMMP helps to document, that dredging is and will 
continue to be needed to allow for safe navigation in the harbors, 
marinas and channels of Long Island Sound. This is important for public 
safety, marine commerce and recreation, and national security. In order 
to handle this dredged material, EPA believes it is neither possible 
nor practical to simply end open water disposal at this time. The goal 
set in 2005 and retained in the Final Rule is to reduce or eliminate 
open-water disposal. The Final Rule establishes standards and 
procedures toward that end.
    EPA strongly disagrees with the suggestion that toxic sediments 
might be disposed of at the sites. EPA's MPRSA regulations require 
rigorous physical, chemical, and biological testing and analysis of 
sediments is conducted prior to issuance of any permit to place 
material at the sites. See 40 CFR part 227. As the Proposed and Final 
Rule make clear, sediments that do not pass these tests are considered 
``unsuitable'' and shall not be disposed of at the sites.
    The USACE's Disposal Area Monitoring System (DAMOS) has gathered 
information on dredged material placement sites in the Sound since the 
late 1970s. The program has generated over 200 detailed reports 
addressing questions and concerns related to placement of dredged 
material in the Sound. Sequential surveys of biological conditions at 
sites following the placement of dredged material consistently show a 
rapid recovery of the benthic community to that of the surrounding 
habitat outside the disposal sites and within the sites. The USACE and 
EPA monitor benthic health and recovery and the results support the 
conclusion that there is no evidence of long-term effects on the marine 
environment.
    With the nearly 40-year record of surveys, there have been multiple 
opportunities to evaluate the effects of large storms (both hurricanes 
and nor'easters) on the dredged material mounds on the seafloor. These 
investigations have demonstrated long-term stability of the mounds even 
at the most exposed sites.
    Comment #13. Other commenters believe dredged material can be 
placed in open-water sites without significant

[[Page 44225]]

harm and that the Proposed Rule provides adequate safeguards for open-
water placement. They note that permitting for dredging and relocation 
of dredged material is rigorous, thorough, and costly, with multiple 
agency reviews. They point to years of studies and documentation 
demonstrating the lack of harm and stability of the dredged materials 
placed at these sites. They believe scientific evidence does not 
support the claim that toxic material is dumped into the Sound. They 
also note that without dredging, the sediments remain in the relative 
shallows of the bays and harbors, where more fish live and where more 
people swim, fish, and enjoy the water. Storms in the relative shallows 
of the bays and harbors create more siltation, turbidity, and 
disturbance than dredging.
    Response #13. EPA agrees that the permitting process for dredging 
projects is rigorous and thorough and involves coordination with 
multiple agencies. As discussed in Response #12, EPA agrees that there 
is a substantial body of scientific evidence that indicates that 
suitable dredged material can be disposed of at the sites with minimal 
harm to the marine environment. To the extent the commenters are 
addressing possible concerns about exposure to materials that might be 
dredged in the future, it is possible that they are dispersed across a 
greater surface area and at depths more readily re-suspended by the 
natural forces of winds, waves, and tides compared to the more compact 
placement at the CLDS and WLDS at depths much less influenced by winds 
and waves.
    Comment #14. Some commenters said that EPA's analysis should 
consider the nitrogen loading associated with open-water disposal and 
reconcile it with EPA's nitrogen strategy for Long Island Sound.
    Response #14. As discussed in the DMMP, the annual placement of 
dredged material at the open-water sites is estimated to add less than 
one-tenth of one percent of the overall annual nitrogen loading to Long 
Island Sound. The dredging process scrapes a relatively thin layer of 
surficial sediment from a wide area, and aquatic placement consolidates 
that volume of sediment into a much smaller footprint. Hence, much of 
the nitrogen that was available for potential future release from 
surficial sediment (due to biological reworking or physical disturbance 
in the shallower environment) is sequestered out of contact with the 
water column in deposits that have been shown to be stable features on 
the seafloor.
    Comment #15. Some commenters believe dredged material should be 
used beneficially. Others note that moving away from open-water 
disposal is feasible in the long run, but the costs associated with 
these alternatives are far greater than funding available today.
    Response #15. EPA agrees that suitable dredged material should be 
used beneficially whenever and wherever practicable. The standards and 
procedures contained in the Final Rule and the menu of alternatives 
contained in the DMMP provide the structure and means to follow a path 
that should result in reducing open-water disposal while increasing 
beneficial use of dredged materials. EPA and the USACE believe that 
sandy materials can be beneficially used in many cases currently and 
with even greater frequency in the future. The next challenge is to 
find economic and beneficial environmental uses for suitable silty 
material. As coastal resiliency becomes an increasingly important 
priority, EPA is hopeful and expects that opportunities for beneficial 
uses of silty material will emerge and expand.
    Comment #16. The USACE noted that the Proposed Rule maintains the 
current language of 40 CFR 228.15(b)(4)(vi) which provides, ``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 USACE explains 
that it does not permit its own projects and is therefore not a 
permittee. USACE requested the language be stricken.
    Response #16. As noted by USACE, the language in question was 
included in the restrictions in the 2005 Rule. The intention of the 
2005 Rule was to apply the restrictions to all persons who may seek to 
dispose of dredged material at the sites under MPRSA. As discussed in 
the preamble to the 2005 Rule, the restrictions were intended to apply 
both to all MPRSA permittees (i.e., private parties and governmental 
agencies other than the USACE), and to the USACE itself which disposes 
of dredged material pursuant to the ``authorizations'' that it grants 
to itself rather than permits. See 70 FR 32511 (June 3, 2005). See also 
33 U.S.C. 1413(e); 40 CFR 220.2(h); 33 CFR 336.1(a). The USACE was 
``deemed'' to be a permittee in the 2005 Rule only to make it clear 
that it was subject to the site Restrictions where the term 
``permittee'' was used, but not to mean that the Corps was actually a 
permittee. Thus, the USACE was not considered to be a permittee but 
would be treated like one in this context.
    EPA understands the USACE's comment as objecting to being 
considered a ``permittee,'' rather than an indication that the USACE is 
not subject to the restrictions. Since the other proposed revisions to 
the 2005 Rule eliminated the use of the word ``permittee,'' there is no 
longer a need to specifically qualify what ``permittee'' refers to. 
Consistent with the USACE's comment and EPA's intention that the 
restrictions apply to all persons who may dispose of dredged material 
at the sites, but not that the USACE would be an actual permittee, EPA 
has revised the sentence in question in 40 CFR 228.15(b)(4)(vi) to read 
(in pertinent part): ``The restrictions apply to the U.S. Army Corps of 
Engineers (USACE) when it is authorizing its own dredged material 
disposal from a USACE dredging project . . . .''
    Comment #17. The U.S. Department of the Interior's Bureau of Indian 
Affairs (BIA) requested that EPA consult with the Shinnecock Indian 
Nation concerning the amendments to the 2005 Rule.
    Response #17. EPA coordinated with Tribal nations in Connecticut, 
Rhode Island, and New York, including the Shinnecock Indian Nation, 
throughout the site designation process. None of the tribes that were 
contacted expressed interest in EPA consulting with them. Upon receipt 
of the letter from BIA, EPA contacted the Shinnecock Indian Nation to 
gauge its interest in participating in the formal consultation process, 
but the tribe did not express an interest in participating. EPA will 
continue to coordinate with the Shinnecock Indian Nation, as 
appropriate, in the future.
    Comment #18. One commenter asserted that the eastern boundary of 
Long Island Sound should run from Little Gull Island, through 
Bartlett's Reef to the Connecticut mainland. They assert that Block 
Island Sound, Gardiners Bay, the Race, Fishers Island Sound and the New 
London Disposal Site are not part of Long Island Sound.
    Response #18. In 2009, after due consideration of the issue, EPA 
advised the USACE that the boundary suggested by the commenter should 
not be used as the eastern boundary of the Sound under MPRSA Section 
106(f). EPA's analysis concluded that the boundary, instead, runs 
northeasterly from Orient Point, through Plum Island, Great Gull and 
Little Gull Islands, Fishers Island, and Napatree Point, RI, which is 
sometimes referred to as the ``Old Base Line.'' This boundary has been 
used consistently by EPA and USACE in all discussions and documents 
concerning

[[Page 44226]]

dredged material disposal sites in Long Island Sound.
    Comment #19: One commenter claimed that EPA has incorrectly 
concluded that the proposed action will not have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act.
    Response #19: EPA disagrees with the commenter regarding the 
conclusion that the proposed action will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act. As EPA noted in the Proposed Rule, the 
restrictions apply only to projects subject to MPRSA (i.e., all federal 
projects and non-federal projects greater than 25,000 cubic yards). 
Small entities are most likely to be involved with projects below the 
25,000 cubic yard threshold. Therefore, they are not subject to these 
restrictions and are subject to Clean Water Act requirements instead. 
If anything, EPA's action to amend the regulations and maintain the 
CLDS and WLDS designations will assist small entities by maintaining 
the CLDS and WLDS as clear options for open-water disposal of dredged 
material, when appropriate.

III. Changes From the Proposed Rule

    The Final Rule incorporates the standards and procedures contained 
in the Proposed Rule and, pursuant to the comments discussed above, 
revises them as follows.
    A sentence, restating the common goal to reduce or eliminate open 
water disposal of dredged material in Long Island Sound, has been added 
to the introductory paragraph (b)(4)(vi) in the Final Rule. Another 
sentence in the same paragraph has been revised to clarify that 
although the USACE is not a permittee, the restrictions also apply to 
the USACE when it is authorizing its own dredged material disposal from 
a USACE dredging project.
    The Final Rule establishes a Long Island Sound Dredging Steering 
Committee consisting of high level representatives from the states, 
EPA, the USACE, and, as appropriate, other federal and state agencies. 
The Steering Committee will provide policy-level direction to the LIS 
RDT and facilitate high-level collaboration among the agencies critical 
to accelerating the development and use of alternatives to open-water 
disposal of dredged material. The charge to the Steering Committee 
includes: developing a baseline for the volume and percentage of 
dredged material being placed in open water and the amount and 
percentage being beneficially used; establishing a reasonable and 
practicable series of stepped objectives (with timeframes) for reducing 
the amount of open water placement and increasing the amount of 
beneficially used material, while also recognizing that there will be 
fluctuations in annual volumes of dredged material generated due to the 
very nature of the dredging program; and developing accurate methods 
for tracking reductions with due consideration for annual fluctuations. 
The Final Rule specifies that the stepped objectives should incorporate 
an adaptive management approach toward continuous improvement. When 
tracking progress, the Steering Committee will recognize that 
exceptional circumstances may result in delays meeting an objective. 
Exceptional circumstances should be infrequent, irregular, and 
unpredictable. In carrying out its tasks, the Steering Committee shall 
guide and utilize the LIS RDT, as appropriate.
    Participation of Connecticut, New York, and Rhode Island on the 
Steering Committee and LIS RDT is voluntary; it is not legally mandated 
by the new regulations. That said, EPA expects, as discussed earlier, 
that Connecticut and New York (and possibly Rhode Island) will 
participate and that each of the member agencies will commit the 
necessary resources to support the work of the Steering Committee and 
the LIS RDT, including collecting the data necessary to support the 
establishment of the baseline and tracking and reporting the future 
disposition of dredged materials. EPA expects the Steering Committee, 
with the support of the LIS RDT, to guide a concerted effort to spur 
greater use of beneficial use alternatives, including piloting 
alternatives, identifying possible resources, and eliminating 
regulatory barriers. The Final Rule contains provisions establishing 
the Steering Committee and setting out the responsibilities described 
above. [(b)(4)(vi)(E)]
    The Final Rule clarifies certain of the roles and responsibilities 
of the LIS RDT. Again, participation by the states on the LIS RDT is 
voluntary, but EPA expects the states to participate and to provide the 
resources necessary for meaningful participation. The Final Rule 
establishes the relationship between the Steering Committee, which 
provides policy-level direction for the LIS RDT, and the LIS RDT, which 
has the responsibility for execution. It more explicitly calls for 
project proponents to consult with the LIS RDT at the earliest possible 
stage to expand consideration of beneficial use alternatives. The Final 
Rule sets a clear expectation that the LIS RDT will report to USACE on 
its review of final projects within 30 days of receipt of project 
information. It also provides additional detail on the organization and 
procedures for the LIS RDT. EPA views the charter under which the LIS 
RDT has operated during the development of the DMMP as a useful 
starting point for a new charter that encompasses the revised roles, 
responsibilities and makeup of the LIS RDT. The current LIS RDT charter 
should serve as the interim guide for the LIS RDT's process until a new 
charter is developed. [(b)(4)(vi)(F)]
    Lastly, the Final Rule provides the potential for reconsidering the 
rule, upon petition, if in ten years the amount of dredged material 
disposed of at the sites has not been maintained or reduced. 
[(b)(4)(vi)(H)]

IV. Compliance With Statutory and Regulatory Requirements

    The preamble to the 2005 Rule described how the dredged material 
disposal site designation process that culminated in the designation of 
the CLDS and WLDS was consistent with the requirements of the MPRSA, 
the 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 32502-32508 (June 3, 2005). While the CWA does not apply 
specifically to an EPA designation of a long-term dredged material 
disposal site under the MPRSA, future federal and non-federal projects 
involving dredged material disposal in Long Island Sound will require 
both a section 404 permit as well as a State Water Quality 
Certification pursuant to section 401 of the CWA.
    In the preamble to the Proposed Rule, EPA determined that the 
proposed amendments to the 2005 Rule, and the process by which they 
were developed, also are consistent with the laws noted above. 81 FR 
7060-7061. One of the important factors in this determination was that 
the amended Rule would provide the same or greater protection of water 
quality and the marine environment as the 2005 Rule. 81 FR 7060. EPA's 
conclusions regarding compliance with those laws has not changed 
following consideration of public comments.
    As the preamble to the Proposed Rule explained, the proposed 
amendments to the 2005 Rule do not make decisions about the suitability 
of any particular dredged material for open-water disposal or about any 
other type of management of the material. Such decisions will be made 
for specific

[[Page 44227]]

dredging projects on the basis of project-specific permitting 
evaluations. The amendments to the regulations, instead, provide 
specific standards and procedures designed to further the goal of 
reducing or eliminating open-water disposal of dredged material at the 
CLDS and WLDS. These amendments are consistent with provisions of the 
2005 Rule that called for possible revisions to the Rule based on the 
standards and procedures recommended in the Long Island Sound Dredged 
Material Management Plan (DMMP). The preamble to the Proposed Rule also 
provided additional statute-specific discussion. 81 FR 7060-7061.
    At the time of the Proposed Rule, consultation and coordination 
with state and federal agencies regarding the CZMA, ESA, MSFCMA, 
respectively, were underway. Those consultations have been completed, 
as discussed below.

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

    In the preamble to the 2005 Rule, EPA explained in detail how its 
designation of the CLDS and WLDS complied with the MPRSA. 70 FR 32502-
32508. In the preamble for the Proposed Rule, EPA explained how the 
proposed amendments to the 2005 Rule also complied with the MPRSA. As 
part of such compliance, EPA has finalized updates to the Site 
Management and Monitoring Plan (SMMP) for both the CLDS and the WLDS.

2. 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 maximum extent practicable with the 
enforceable policies of the state's coastal zone management program. 
EPA determined that the amendments to the 2005 Rule are consistent with 
the enforceable policies of the coastal zone management programs of 
both Connecticut and New York and provided each state with a written 
determination to that effect. EPA consulted with each state's coastal 
zone management program prior to this final rulemaking. In a letter 
dated April 8, 2016, the Connecticut Department of Energy and 
Environmental Protection concurred with EPA's determination with regard 
to Connecticut's coastal zone management program. The New York State 
Department of State (NY DOS) provided its concurrence on April 25, 
2016. NY DOS's concurrence was conditioned on the Final Rule including 
provisions that address NY DOS's comments on the Proposed Rule. EPA 
believes the changes to the Proposed Rule described above are 
consistent with NY DOS's condition(s) and, thus, considers NY DOS to 
have concurred with the Final Rule.\1\
---------------------------------------------------------------------------

    \1\ NY DOS's conditional concurrence stated its conclusion that 
EPA's rule would not comply with the enforceable provisions of New 
York's coastal zone management program unless EPA adopted provisions 
consistent with the conditions proposed by NY DOS. While EPA has, 
indeed, adopted such provisions that assure NY DOS's concurrence, 
EPA does not agree with NY DOS's assessment of proposed regulatory 
amendments. EPA, instead, determined that the terms of its Proposed 
and Final Rules fully comply or, in the alternative, comply to the 
maximum extent practicable with the enforceable provisions of New 
York's coastal zone management program. EPA's assessment is 
documented in the record, including, but not limited to, its CZMA 
consistency determination.
---------------------------------------------------------------------------

3. Endangered Species Act

    Since the 2005 Rule, NOAA's National Marine Fisheries Service 
(NMFS) and the U.S. Fish and Wildlife Service 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 NMFS in 2012. EPA's analysis considered the Atlantic sturgeon as 
well as sea turtles and listed marine mammals. Consistent with the ESA, 
EPA consulted with NMFS and USFWS on this rulemaking action and the 
updating of the SMMPs for the two disposal sites. NMFS has concurred 
with EPA's determination that any adverse effects on listed species 
from this action would be insignificant or discountable, and that this 
action is not likely to adversely affect any listed species or critical 
habitat of such species under NMFS jurisdiction. EPA sent a ``no 
effects'' determination for species under USFWS jurisdiction to the 
USFWS and did not receive any response, so EPA assumed concurrence. No 
additional consultation or coordination is required.

4. Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)

    EPA coordinated with NMFS on this rulemaking action and the 
updating of SMMPs for the two disposal sites, consistent with the 
Essential Fish Habitat provisions of the MSFCMA. NMFS has concurred 
with our determination that it is unlikely that this action will result 
in adverse effects to any essential fish habitat. Therefore, no 
additional coordination is required.

V. Final Action

    EPA is publishing this Final Rule to amend the restrictions on the 
use of the CLDS and WLDS. This action is consistent with, and retains a 
number of, the restrictions contained in the original designation of 
these sites in 2005. Certain of those restrictions required completion 
of a DMMP 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's Final Rule removes the 
restrictions related to its development. The 2005 restrictions further 
require EPA, within 120 days of completion of the DMMP, to issue final 
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. 
While the Final Rule was not issued within 120 days of completion of 
the DMMP (which would have been May 10), and use of the CLDS and WLDS 
was temporarily suspended, issuance of today's Final Rule satisfies 
that requirement such that the suspension of the sites has been lifted 
and they are now available for use. See 40 CFR 228.15(b)(4)(vi)(C) 
(footnote 1) and (G).
    The Final Rule incorporates the standards and procedures 
recommended in the DMMP and augments them by establishing a Steering 
Committee to provide policy guidance and direction to the LIS RDT and 
to: Develop a baseline for the volume and percentage of dredged 
material being placed in open water and the amount and percentage being 
beneficially used; establish a reasonable and practicable series of 
stepped objectives (with timeframes) for reducing the amount of open 
water placement and increasing the amount of beneficially used 
material, while also recognizing that there will be fluctuations in 
annual volumes of dredged material generated due to the very nature of 
the dredging program; and develop accurate methods for tracking 
reductions with due consideration for annual fluctuations. The stepped 
objectives will incorporate an adaptive management approach toward 
continuous improvement. The Rule provides that when tracking progress, 
the Steering Committee will recognize that exceptional circumstances 
may result in delays meeting an objective. Exceptional circumstances 
should be infrequent, irregular, and unpredictable. The Final Rule also 
provides that in carrying out its tasks, the Steering Committee shall

[[Page 44228]]

guide and utilize the LIS RDT, as appropriate.
    The Final Rule also expressly allows any person to submit a 
petition seeking changes to the rule if, in ten years, the amount of 
dredged material disposed of at the sites has not been maintained or 
reduced.

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 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 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 satisfaction of the existing regulatory requirement that 
practicable alternatives to the ocean dumping of dredged material be 
utilized (see 40 CFR 227.16).

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 within the 
meaning of the Executive Order. 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 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 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

    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 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.''
    EPA expects that this 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, the ocean dumping 
regulations, the 2005 Rule, the CWA, and other relevant statutes and 
regulations, the final regulatory amendments are designed to promote 
and support reductions in 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 . . . 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.
    EPA expects that this Final Rule will afford additional protection 
to the waters of Long Island Sound and

[[Page 44229]]

organisms that inhabit them. Building on the existing protections of 
the MPRSA, the ocean dumping regulations, the 2005 Rule, the CWA and 
other relevant statutes and regulations, the regulatory amendments are 
designed to promote the reduction or elimination of open-water disposal 
of dredged material in Long Island Sound.

13. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A ``major rule'' 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a major rule as defined by 5 U.S.C. 
804(2). This rule will be effective August 8, 2016.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

    Dated: June 24, 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 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 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 paragraphs (b)(4)(vi)(D) through (F);
0
d. Revising paragraph (b)(4)(vi)(G);
0
e. Removing paragraph (b)(4)(vi)(H);
0
f. Redesignating paragraph (b)(4)(vi)(I) as (b)(4)(vi)(C) and revising 
it;
0
g. Redesignating paragraph (b)(4)(vi)(J) through (L) as (b)(4)(vi)(H) 
through (J), respectively;
0
h. Removing paragraph (b)(4)(vi)(M);
0
i. Redesignating paragraph (b)(4)(vi)(N) as (b)(4)(vi)(K); and
0
j. 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 and Western 
Long Island Sound Dredged Material Disposal Sites (CLDS and WLDS, 
respectively). These conditions apply to all disposal subject to the 
MPRSA, namely, non-federal projects greater than 25,000 cubic yards and 
all federal projects. With regard to federal projects, the restrictions 
apply to the U.S. Army Corps of Engineers (USACE) when it is 
authorizing its own dredged material disposal from a USACE dredging 
project, as well as to federal dredged material disposal projects that 
require authorization from a permit issued by the USACE. The goal of 
these conditions is to reduce or eliminate open-water disposal of 
dredged material in Long Island Sound. 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 if, after 
full consideration of recommendations provided by the Long Island Sound 
Regional Dredging Team (LIS RDT) if the members of the LIS RDT reach 
consensus, or provided by the LIS RDT's member agencies if no consensus 
is achieved, the USACE finds (and 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, consistent with 40 CFR 227.16(b), a 
practicable alternative to open-water disposal may add reasonable 
incremental 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. Disposal shall be limited to dredged 
sediments that comply with the Ocean Dumping Regulations.
    (ii) Suitable sandy material. Suitable 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. If no other 
alternative is determined to be practicable, suitable course-grained 
material may be placed at the designated sites.
    (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 should, whenever possible, 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.
    (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) There is established a Long Island Sound Dredging Steering 
Committee (Steering Committee), consisting of high-level 
representatives from the states of Connecticut and New York, EPA, 
USACE, and, as appropriate, other federal and state agencies. The 
Steering Committee will provide policy-level direction to the Long 
Island Sound Regional Dredging Team (LIS RDT) and facilitate high-level 
collaboration among

[[Page 44230]]

the agencies critical to promoting the development and use of 
beneficial alternatives for dredged material. State participation on 
the LIS RDT and Steering Committee is voluntary. The Steering Committee 
is charged with: Establishing a baseline for the volume and percentage 
of dredged material being beneficially used and placed at the open-
water sites; establishing a reasonable and practicable series of 
stepped objectives, including timeframes, to increase the percentage of 
beneficially used material while reducing the percentage and amount 
being disposed in open water, and while recognizing that the amounts of 
dredged material generated by the dredging program will naturally 
fluctuate from year to year; and developing accurate methods to track 
the placement of dredged material, with due consideration for annual 
fluctuations. The stepped objectives should incorporate an adaptive 
management approach while aiming for continuous improvement. When 
tracking progress the Steering Committee should recognize that 
exceptional circumstances may result in delays in meeting an objective. 
Exceptional circumstances should be infrequent, irregular, and 
unpredictable. It is expected that each of the member agencies will 
commit the necessary resources to support the LIS RDT and Steering 
Committee's work, including the collection of data necessary to support 
establishing the baseline and tracking and reporting on the future 
disposition of dredged material. The Steering Committee may utilize the 
LIS RDT, as appropriate, to carry out the tasks assigned to it. The 
Steering Committee, with the support of the LIS RDT, will guide a 
concerted effort to encourage greater use of beneficial use 
alternatives, including piloting alternatives, identifying possible 
resources, and eliminating regulatory barriers, as appropriate.
    (F) The goal of the Long Island Sound Regional Dredging Team (LIS 
RDT), working in cooperation with, and support of, the Steering 
Committee, 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 will:
    (i) Review dredging projects and make recommendations as described 
in paragraph (vi)(C) above. The LIS RDT will report to the USACE on its 
review of dredging projects within 30 days of receipt of project 
information. Project proponents should consult with the LIS RDT early 
in the development of those projects to ensure that alternatives to 
open-water placement are fully considered.
    (ii) Assist the Steering Committee in: Establishing a baseline for 
the volume and percentage of dredged material being beneficially used 
and placed at the open water sites; establishing a reasonable and 
practicable series of stepped objectives, including timeframes, to 
increase the percentage of beneficially used material while reducing 
the percentage and amount being disposed in open water, recognizing 
that the volume of dredged material generated by the dredging program 
will naturally fluctuate from year to year; and developing accurate 
methods to track and report on the placement of dredged material, with 
due consideration for annual fluctuations.
    (iii) In coordination with the Steering Committee, serve as a forum 
for: Continuing exploration of new beneficial use alternatives to open-
water disposal; matching the availability of beneficial use 
alternatives with dredging projects; exploring cost-sharing 
opportunities; and promoting opportunities for beneficial use of clean, 
parent marine sediments often generated in the development of CAD 
cells.
    (iv) Assist the USACE and EPA in continuing long-term efforts to 
monitor dredging impacts in Long Island Sound, including supporting the 
USACE's DAMOS (Disposal Area Monitoring System) program and related 
efforts to study the long-term effects of open-water placement of 
dredged material.
    (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 the states of Connecticut and New York, EPA, USACE, and, as 
appropriate, other federal and state agencies. As previously noted, 
state participation on the LIS RDT is voluntary.
    (4) Organization and procedures. Specific details regarding 
structure (e.g., chair, committees, working groups) and process shall 
be determined by the LIS RDT and may be revised as necessary to best 
accomplish the team's purpose.
    (G) If the volume of open-water disposal of dredged material, as 
measured in 2026, has not declined or been maintained over the prior 
ten years, then any party may petition EPA to conduct a rulemaking to 
amend the restrictions on the use of the sites.
* * * * *
    (5) Western Long Island Sound Dredged Material Disposal Site 
(WLDS).
* * * * *
    (v) Period of use: Continuing use.
* * * * *
[FR Doc. 2016-16147 Filed 7-6-16; 8:45 am]
 BILLING CODE 6560-50-P