[Federal Register Volume 81, Number 134 (Wednesday, July 13, 2016)]
[Proposed Rules]
[Pages 45262-45270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16584]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R04-OW-2016-0356; FRL-9948-90-Region 4]


Ocean Dumping: Modification of an Ocean Dredged Material Disposal 
Site Offshore of Charleston, South Carolina

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a modification of the ocean dredged material disposal site 
(ODMDS) site offshore of Charleston, South Carolina pursuant to the 
Marine Protection, Research and Sanctuaries Act, as amended (MPRSA). 
The primary purpose for the site modification is to serve the long-term 
need for a location to dispose of material dredged from the Charleston 
Harbor federal navigation channel, and to provide a location for the 
disposal of dredged material for persons who have received a permit for 
such disposal. The modified site will be subject to ongoing monitoring 
and management to ensure continued protection of the marine 
environment.

DATES: Written comments must be received on or before August 12, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OW-2016-0356, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments and accessing the docket and materials related to 
this proposed rule.
     Email: [email protected].
     Mail: Gary W. Collins, U.S. Environmental Protection 
Agency, Region 4, Water Protection Division, Marine Regulatory and 
Wetlands Enforcement Section, 61 Forsyth Street, Atlanta, Georgia 
30303.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OW-
2016-0356. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through 
www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov Web site is an 
``anonymous access'' system, which

[[Page 45263]]

means the EPA will not know your identity or contact information unless 
you provide it in the body of your comment. If you send an email 
comment directly to the EPA without going through www.regulations.gov, 
your email address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, the EPA 
recommends that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If the 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, the EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses. For 
additional information about the EPA's public docket visit the EPA 
Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: Publicly available docket materials are available either 
electronically at www.regulations.gov or in hard copy during normal 
business hours from the regional library at the U.S. Environmental 
Protection Agency, Region 4 Library, 9th Floor, 61 Forsyth Street, 
Atlanta, Georgia 30303. For access to the documents at the Region 4 
Library, contact the Region 4 Library Reference Desk at (404) 562-8190, 
between the hours of 9:00 a.m. to 12:00 p.m., and between the hours of 
1:00 p.m. to 4:00 p.m., Monday through Friday, excluding Federal 
holidays, for an appointment.

FOR FURTHER INFORMATION CONTACT: Gary W. Collins, U.S. Environmental 
Protection Agency, Region 4, Water Protection Division, Marine 
Regulatory and Wetlands Enforcement Section, 61 Forsyth Street, 
Atlanta, Georgia 30303; phone number (404) 562-9395; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Potentially Affected Persons

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

------------------------------------------------------------------------
                                      Examples of potentially regulated
             Category                              persons
------------------------------------------------------------------------
Federal government................  U.S. Army Corps of Engineers Civil
                                     Works projects, U.S. Navy and other
                                     Federal agencies.
Industry and general public.......  Port authorities, marinas and
                                     harbors, shipyards and marine
                                     repair facilities, berth owners.
State, local and tribal             Governments owning and/or
 governments.                        responsible for ports, harbors, and/
                                     or berths, Government agencies
                                     requiring disposal of dredged
                                     material associated with public
                                     works projects.
------------------------------------------------------------------------

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

II. Background

a. History of Disposal Sites Offshore of Charleston, South Carolina

    The existing Charleston ODMDS is located approximately 9 nautical 
miles (nmi) southeast of the mouth of Charleston Harbor on the 
continental shelf off the coast of South Carolina. It is currently 12.1 
nmi\2\ in size, with an authorized disposal zone that is 3.0 nmi\2\ in 
size. Since 1896, the area now designated as the Charleston ODMDS and 
vicinity has been used for disposal of dredged material (e.g., sand, 
silt, clay, rock) primarily from the Charleston Harbor Navigation 
Project. The Charleston ODMDS received interim site designation status 
in 1977 and final designation in 1987. The discovery of live bottom 
habitats within the original site resulted in several modifications to 
use of the site resulting in the creation of the restricted disposal 
zone.
    The USACE Charleston District and the EPA Region 4 have identified 
a need to either designate a new ODMDS or expand the existing 
Charleston ODMDS. The need for expanding current ocean disposal 
capacity is based on future capacity modeling, historical dredging 
volumes, estimates of dredging volumes for future proposed projects, 
and limited capacity of upland confined disposal facilities (CDFs) in 
the area.
    The proposed modification of the ODMDS for dredged material does 
not mean that the USACE or the EPA has approved the use of the ODMDS 
for open water disposal of dredged material from any specific project. 
Before any person can dispose dredged material at the ODMDS, the EPA 
and the USACE must evaluate the project according to the ocean dumping 
regulatory criteria (40 CFR part 227) and authorize the disposal. The 
EPA independently evaluates proposed dumping and has the right to 
restrict and/or disapprove of the actual disposal of dredged material 
if the EPA determines that environmental requirements under the MPRSA 
have not been met.

b. Location and Configuration of Modified Ocean Dredged Material 
Disposal Site

    This action proposes the modification of the ocean dredged material 
site offshore of Charleston, South Carolina. The location of the 
proposed modified ocean dredged material disposal site is bounded by 
the coordinates, listed below. The proposed modification of the ODMDS 
will allow the EPA to adaptively manage the ODMDS to maximize its 
capacity, minimize the potential for mounding and associated safety 
concerns, potentially create hard bottom habitat and minimize the 
potential for any long-term adverse effects to the marine environment.
    The coordinates for the site are, in North American Datum 83 (NAD 
83):
Modified Charleston ODMDS
(A) 32[deg]36.280' N., 79[deg]43.662' W.
(B) 32[deg]21.514' N., 79[deg]46.576' W.
(C) 32[deg]20.515' N., 79[deg]45.068' W.
(D) 32[deg]20.515' N., 79[deg]42.152' W.
    The proposed modified ODMDS is located in approximately 30 to 45 
feet of water, and is located to approximately 6.0 nmi offshore. The 
proposed modified ODMDS would be 7.4 nmi\2\ in size.

[[Page 45264]]

c. Management and Monitoring of the Site

    The proposed modified ODMDS is expected to receive sediments 
dredged by the USACE to deepen and maintain the federally authorized 
navigation project at Charleston Harbor, South Carolina, and dredged 
material from other persons who have obtained a permit for the disposal 
of dredged material at the ODMDS. All persons using the ODMDS are 
required to follow a Site Management and Monitoring Plan (SMMP) for the 
ODMDS. The SMMP includes management and monitoring requirements to 
ensure that dredged materials disposed at the ODMDS are suitable for 
disposal in the ocean and that adverse impacts of disposal, if any, are 
addressed to the maximum extent practicable. The SMMP for the proposed 
modified ODMDS, in addition to the aforementioned, also addresses 
management of the ODMDS to ensure adverse mounding does not occur, 
promotes habitat creation where possible and to ensure that disposal 
events minimize interference with other uses of ocean waters in the 
vicinity of the proposed modified ODMDS. The SMMP has been publically 
review and is currently being finalized by the Charleston Ocean ODMDS 
Task Force. The Task Force is made up of members representing EPA, 
USACE, National Marine Fisheries Service (NMFS), Bureau of 
Environmental Management (BOEM), the South Carolina State Ports 
Authority (SCSPA), the South Carolina Department of Natural Resources 
(SCDNR), and the South Carolina Department of Health and Environmental 
Control.

d. MPRSA Criteria

    In proposing to modify the ODMDS, the EPA assessed the proposed 
modified ODMDS according to the criteria of the MPRSA, with particular 
emphasis on the general and specific regulatory criteria of 40 CFR part 
228, to determine whether the proposed site designations satisfy those 
criteria. The EPA's Final Environmental Assessment for Modification of 
an Ocean Dredged Material Disposal Site Offshore Charleston, South 
Carolina, [April 2016] (EA), provides an extensive evaluation of the 
criteria and other related factors for the modification of the ODMDS.
General Criteria (40 CFR 228.5)
    (1) Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or shellfisheries, and regions of heavy commercial 
or recreational navigation (40 CFR 228.5(a)).
    Dredged material disposal within the existing Charleston ODMDS has 
been confined to the eastern side of the designated site within a 
defined 4-mi\2\ disposal zone to avoid impacts to live hardbottom. 
During this time, dredged material disposal at the site has not 
interfered with commercial or recreational navigation, commercial 
fishing, or sportfishing activities. The proposed modification of the 
site boundaries to the north, east, and south is not expected to change 
these conditions. The proposed action avoids major fisheries, natural 
and artificial reefs, and areas of recreational use. Modification of 
the site to the east will minimize interference with shellfisheries by 
avoiding areas located primarily to the west of the ODMDS that are 
frequently used by commercial shrimpers. Construction of the berm will 
provide an additional approximately 427 acres of hardbottom habitat and 
will protect existing hardbottom habitat by minimizing sediment 
transport. There will be a 3000-foot buffer along the northern 
perimeter of the ODMDS where dumping will not occur. Modeling results 
indicate that this buffer should be sufficient to protect probable 
hardbottom areas to the north of the site.
    (2) Sites must be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or undetectable contaminant concentrations or effects before reaching 
any beach, shoreline, marine sanctuary, or known geographically limited 
fishery or shellfishery (40 CFR 228.5(b)).
    The proposed ODMDS modification area will be used for disposal of 
suitable dredged material as determined by Section 103 of the MPRSA. 
Based on the USACE and EPA sediment testing and evaluation of dredged 
maintenance material and proposed new work material from the Post 45 
deepening project, disposal is not expected to have any long-term 
impact on the water quality. Results of the maximum concentration found 
outside the disposal area after 4 hours of mixing for each dredging 
unit was zero. Based on these results, water quality perturbations that 
could reach any beach, shoreline, marine sanctuary, or known 
geographically-limited fishery or shellfishery are not expected. The 
western edge of the proposed modified ODMDS is approximately 7 miles 
offshore such that prevailing current will not transport dredged 
material to beaches. Water quality perturbations caused by dispersion 
of disposal material will be reduced to ambient conditions before 
reaching any environmentally sensitive areas.
    (3) The sizes of disposal sites will be limited in order to 
localize for identification and control any immediate adverse impacts, 
and to permit the implementation of effective monitoring and 
surveillance to prevent adverse long-range impacts. Size, 
configuration, and location are to be determined as part of the 
disposal site evaluation (40 CFR 228.5(d)).
    The location, size, and configuration of the proposed modified 
ODMDS provides long-term capacity, site management, and site monitoring 
while limiting environmental impacts to the surrounding area. Based on 
25 years of projected new work and maintenance dredged material 
disposal needs, it is estimated that the ODMDS modification area should 
accommodate approximately 66.5 mcy of dredged material in order to meet 
the long-term disposal needs of the area. The dump zone within the 
proposed ODMDS is estimated to have approximately 75 mcy of capacity. 
The capacity in the dump zone provides a reasonable amount of 
additional capacity to manage risk, account for future unknown disposal 
operations from private entities, and provides a margin of navigation 
safety. The remaining area within the boundaries of the existing 12 
nmi\2\ Charleston ODMDS (parallelogram) would be de-designated. The 
area to be de-designated is approximately 10.4 mi\2\ (7.8 nmi\2\) in 
size and contains documented hardbottom habitat.
    By adding 5.8 mi\2\ (4.4 nmi\2\) to the existing ODMDS disposal 
zone, the total area of the modified Charleston ODMDS would be 9.8 
mi\2\ (7.4 nmi\2\), with a dump zone area of 5.1 mi\2\ (3.9 nmi\2\). An 
ODMDS of this size and capacity will provide a long-term ocean disposal 
option for the region.
    To help protect nearby hardbottom habitat from being buried by 
sediment migrating from the ODMDS, a U-shaped berm along the east, 
south, and west perimeters of the modified ODMDS will be constructed. 
Although there is probable hardbottom located north of the proposed 
modified ODMDS, no berm will be constructed along the northern 
boundary. However, there will be a 3000-foot buffer along the northern 
perimeter of the ODMDS where dumping will not occur. Fate modeling 
indicates that this buffer should be sufficient to protect probable 
hardbottom areas to the north of the site.
    When determining the size of the proposed site, the ability to 
implement

[[Page 45265]]

effective monitoring and surveillance programs, among other things, was 
factored in to ensure that navigational safety would not be compromised 
and to prevent mounding of dredged material, which could result in 
adverse wave conditions. A site management and monitoring program will 
be implemented to determine if disposal at the site is significantly 
affecting adjacent areas and to detect the presence of long-term 
adverse effects. At a minimum, the monitoring program will consist of 
bathymetric surveys, sediment grain size analysis, chemical analysis of 
constituents of concern in the sediments, and a health assessment of 
the benthic community.
    (4) EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites where 
historical disposal has occurred (40 CFR 228.5(e)).
    The continental slope is approximately 55 nmi offshore of 
Charleston. Disposal off the continental shelf (shelf break) was 
evaluated in detail the 1983 ODMDS Designation EIS document. In 
comparison to locating the site in the nearshore region, it was 
determined that monitoring and surveillance would be more difficult and 
expensive in the shelf break area because of the distance from shore to 
the deeper waters. Transporting material to and performing long-term 
monitoring of a site located off the continental shelf is not 
economically or operationally feasible.
    The historically used ocean dumping site, Charleston ODMDS, is not 
located beyond the continental shelf. A portion of the proposed 
modified ODMDS encompasses an area previously designated for disposal.
Specific Criteria (40 CFR 228.6)
    (1) Geographical Position, Depth of Water, Bottom Topography and 
Distance from Coast (40 CFR 228.6(a)(1)).
    The proposed modified ODMDS is located on the shallow continental 
shelf, approximately 6 nmi offshore of Charleston, South Carolina. 
Water depths range from -30 to -45 feet (9 to 13 meters) with an 
overall average depth of -40 feet (12 meters). Characteristics of the 
South Atlantic Bight seafloor include low relief, relatively gentle 
gradients, and smooth bottom surfaces exhibiting physiographic features 
contoured by erosional processes. Sediments largely consist of fine to 
coarse sands. Some areas contain extensive coarse grains and shell 
hash. Fines were found to be typically less than 10%.
    (2) Location in Relation to Breeding, Spawning, Nursery, Feeding, 
or Passage Areas of Living Resources in Adult or Juvenile Phases (40 
CFR 228.6(a)(2)).
    The proposed modified ODMDS is not located in exclusive breeding, 
spawning, nursery, feeding, or passage areas for adult or juvenile 
phases of living resources. The intensity of these activities within 
the vicinity of the ODMDS is seasonally variable, with peaks typically 
occurring in the spring and early fall for most commercially important 
finfish and shellfish species (USEPA 1983). The ODMDS is not located 
within North Atlantic right whale critical habitat.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The center of the proposed modified ODMDS is approximately 7 mi (6 
nmi) from the nearest coastal beach. The site is approximately 3.1 mi 
(2.7 nmi) south of the nearest artificial reef. No significant impacts 
to beaches or amenity areas associated with the existing ODMDS have 
been documented.
    (4) Types and Quantities of Wastes Proposed to be Disposed of, and 
Proposed Methods of Release, including Methods of Packing the Waste, if 
any (40 CFR 228.6(a)(4)).
    Only material that meets EPA Ocean Dumping Criteria in 40 CFR 220-
229 will be placed in the proposed site. Average annual maintenance 
material is approximately 1.4 mcy and approximately 31.2 mcy of new 
work material is expected from the Charleston Harbor Deepening Project. 
Sediments dredged from Charleston Harbor and the entrance channel are a 
mixture of silt, sand, and rock. Hopper dredge, barge, and scow 
combinations are the usual vehicles of transport for the dredged 
material. None of the material is packaged in any manner.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    The EPA expects monitoring and surveillance at the proposed 
modified ODMDS to be feasible and readily performed from ocean or 
regional class research vessels. The proposed modified ODMDS is of 
similar size, water depth and distance from shore as are a majority of 
the ODMDSs within the Southeastern United States which are routinely 
monitored. The EPA will ensure monitoring of the site for physical, 
biological and chemical attributes as well as for potential impacts 
beyond the site boundaries. Bathymetric surveys will be conducted 
routinely as defined in the SMMP, contaminant levels in the dredged 
material will be analyzed prior to dumping, and the benthic infauna and 
epibenthic organisms will be monitored every 10 years, as funding 
allows.
    (6) Dispersal, Horizontal Transport and Vertical Mixing 
Characteristics of the Area, including Prevailing Current Direction and 
Velocity, if any (40 CFR 228.6(a)(6)).
    A study conducted by EPA from 2013-2015 indicated that currents in 
the vicinity of the Charleston ODMDS tend to have a significant tidal 
component with predominant currents in the cross-shore direction. The 
depth-averaged median current velocity was 18 cm/sec (0.6 ft/sec) with 
90% of the measurements below 30 cm/sec (1.1 ft/sec). Wind-driven 
circulation is the most important factor in controlling sediment 
transport. Strong winds generate waves that steer the sediment on the 
seabed and create large nearbed suspended sediment concentrations. 
Suspended sediment transport is directed mainly NE and SW in response 
to local wind climate and the wind-generated alongshore flows. LTFATE 
and MPFATE modeling results over a 25-year period indicate depths of 
sediment deposited outside the boundaries of the ODMDS will not exceed 
the 5 cm deposition contour guidance provided by EPA.
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    Previous disposal of dredged material resulted in temporary 
increases in suspended sediment concentrations during disposal 
operations, localized mounding within the site, burial of benthic 
organisms within the site, changes in the abundance and composition of 
benthic assemblages, and changes in the sediment composition from sandy 
sediments to finer-grained silts. Impacts to live bottoms were 
identified in the western portion of the 12-mi\2\ ODMDS.
    Short-term, long-term, and cumulative effects of dredged material 
disposal in the proposed ODMDS modification area would be similar to 
those for the existing ODMDS.
    (8) Interference with Shipping, Fishing, Recreation, Mineral 
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special 
Scientific Importance and Other Legitimate Uses of the Ocean (40 CFR 
228.6(a)(8)).
    The proposed modified ODMDS is not expected to interfere with 
shipping, fishing, recreation or other legitimate uses of the ocean. 
Commercial navigation, commercial fishing, and mineral extraction (sand 
mining) are the primary activities that may spatially overlap with 
disposal at the proposed

[[Page 45266]]

modified ODMDS. The proposed modified ODMDS avoids the National 
Oceanographic and Atmospheric Administration (NOAA) recommended vessel 
routes offshore Charleston, South Carolina, thereby avoiding conflict 
with commercial navigation.
    Commercial fishing (shrimp trawling) occurs primarily to the west 
of the proposed modified ODMDS.
    The likelihood of direct interference with these activities is low, 
provided there is close communication and coordination among users of 
the ocean resources. The EPA is not aware of any plans for desalination 
plants, or fish and shellfish culture operations near the proposed 
modified ODMDS at this time. The proposed modified ODMDS is not located 
in areas of special scientific importance.
    (9) The Existing Water Quality and Ecology of the Sites as 
Determined by Available Data or Trend Assessment of Baseline Surveys 
(40 CFR 228.6(a)(9)).
    Water quality of the existing site is typical of the Atlantic 
Ocean. Water and sediment quality analyses conducted in the study area 
and experience with past disposals in the Charleston ODMDS have not 
identified any adverse water quality impacts from ocean disposal of 
dredged material. The site supports benthic and epibenthic fauna 
characteristic of the South Atlantic Bight. Neither the pelagic 
(mobile) or benthic (non-mobile) communities should sustain irreparable 
harm due to their widespread occurrence off the South Carolina coast.
    (10) Potentiality for the Development or Recruitment of Nuisance 
Species in the Disposal Site (40 CFR 228.6(a)(10)).
    Nuisance species, considered as any undesirable organism not 
previously existing at a location, have not been observed at, or in the 
vicinity of, the proposed modified ODMDS. They are either transported 
to or recruited to the site because the disposal of dredged material 
creates an environment where they can establish. Habitat conditions 
have changed somewhat at the Charleston ODMDS because of the disposal 
of some silty material on what was predominately sandy sediments. While 
it can be expected that organisms will become established at the site 
which were not there previously, this new community is not regarded as 
a nuisance, or ``undesirable,'' community.
    (11) Existence at or in Close Proximity to the Site of any 
Significant Natural or Cultural Feature of Historical Importance (40 
CFR 228.6(a)(11)).
    No significant cultural features have been identified at, or in the 
vicinity of, the proposed modified ODMDS at this time. Surveys 
conducted in 2012-2013 did not identify any cultural features of 
historical importance. The EPA has coordinated with South Carolina's 
State Historic Preservation Officer (SHPO) to identify any cultural 
features. The SHPO concurred with the EPA's determination that the 
proposed modification of the ODMDS will have no effect on cultural 
resources listed, or eligible for listing on the National Register of 
Historic Places as no such resources exist in the project area.

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

a. NEPA

    Section 102 of the National Environmental Policy Act of 1969, as 
amended (NEPA), 42 U.S.C. 4321 to 4370f, requires Federal agencies to 
prepare an Environmental Impact Statement (EIS) for major federal 
actions significantly affecting the quality of the human environment. 
NEPA does not apply to EPA designations of ocean disposal sites under 
the MPRSA because the courts have exempted the EPA's actions under the 
MPRSA from the procedural requirements of NEPA through the functional 
equivalence doctrine. The EPA has, by policy, determined that the 
preparation of NEPA documents for certain EPA regulatory actions, 
including actions under the MPRSA, is appropriate. The EPA's ``Notice 
of Policy and Procedures for Voluntary Preparation of NEPA Documents,'' 
(Voluntary NEPA Policy), 63 FR 58045, (October 29, 1998), sets out both 
the policy and procedures the EPA uses when preparing such 
environmental review documents. The EPA's primary voluntary NEPA 
document for expanding the ODMDS is the Final Environmental Assessment 
for Modification of an Ocean Dredged Material Disposal Site Offshore 
Charleston, South Carolina, [April 2016] (FEA), prepared by the EPA in 
cooperation with the USACE. Anyone desiring a copy of the FEA may 
obtain one from the addresses given above. A draft of this document was 
released for public review in December, 2015. The public comment period 
on the Draft EA closed on January 19, 2016.
    The EPA received 8 comment letters on the DEA. There were two main 
concerns expressed in those letters: (1) Potential movement of disposed 
material impacting areas such as habitat, fisheries and sand borrow 
areas; and (2) monitoring associated with the SMMP. No objections to 
the ODMDS modification were received. The EPA and USACE responded to 
all comments and they are provided in the FEA. The FEA and its 
Appendices, which are part of the docket for this action, provide the 
threshold environmental review for modification of the ODMDS. The 
information from the FEA is used above, in the discussion of the ocean 
dumping criteria.
    The proposed action discussed in the FEA is the permanent 
designation of a modified ODMDS offshore Charleston, South Carolina. 
The purpose of the proposed action is to provide an environmentally 
acceptable option for the ocean disposal of dredged material. The need 
for the modified ODMDS is based on a demonstrated USACE need for ocean 
disposal of dredged material from the Charleston Harbor Federal 
Navigation Project, and the proposed Charleston Harbor Deepening 
Project (also known as Post 45). The need for ocean disposal for these 
and other projects, and the suitability of the material for ocean 
disposal, will be determined on a case-by-case basis as part of the 
USACE process of issuing permits for ocean disposal for private/federal 
actions and a public review process for its own actions. This will 
include an evaluation of disposal alternatives.
    For the proposed modified ODMDS, the USACE and the EPA would 
evaluate all federal dredged material disposal projects pursuant to the 
EPA criteria set forth in the Ocean Dumping Regulations (40 CFR 220-
229) and the USACE regulations (33 CFR 209.120 and 335-338). The USACE 
issues Marine Protection, Research, and Sanctuaries Act (MPRSA) permits 
to applicants for the transport of dredged material intended for 
disposal after compliance with regulations is determined. The EPA has 
the right to disapprove any ocean disposal project if, in its judgment, 
all provisions of MPRSA and the associated implementing regulations 
have not been met.
    The FEA discusses the need for the proposed modified ODMDS and 
examines ocean disposal site alternatives to the proposed actions. The 
need for expanding the current ODMDS is based on future capacity 
modeling, historical dredging volumes, estimated dredging volumes for 
proposed projects, and limited capacity of upland CDFs in the area. 
Non-ocean disposal options have been examined in the FEA based on 
information provided by the USACE in the Dredged Material Management 
Plans for Charleston Harbor.

[[Page 45267]]

    The following ocean disposal alternatives were considered but 
eliminated from detailed evaluation in the FEA:
1. Alternative 2: Use Existing ODMDS and Remove Disposal Zone 
Restriction
    Alternative 2 is the removal of the current disposal zone 
restriction and allowing use of the entire ODMDS for disposal. This 
alternative would require further delineation and assessment of live-
bottom habitat within the western portion of the site or the acceptance 
of direct impacts to such habitat from disposal. Further habitat 
assessment could result in the need for multiple disposal zones to 
avoid direct impacts. From a site management and disposal operations 
perspective, a non-contiguous site would be more difficult and costly 
to manage and monitor. Use of the western portion of the site also has 
the potential for impacting shrimp trawling grounds.
2. Alternative 3: New ODMDS North of the Entrance Channel
    Alternative 3 proposes to designate a new ODMDS north of the 
entrance channel of the same size and configuration as Alternative 1 
(Table 2.2-2, Figure 2-6). This site is located approximately 16 mi (14 
nmi) offshore of the entrance to Charleston Harbor and 1.6 mi (1.4 nmi) 
east of the anchorage area.
    No hardbottom or cultural resource surveys have been conducted in 
this area. Therefore, the presence of hardbottom and cultural resources 
within and adjacent to this site are unknown and would require 
additional surveys. As mentioned in Section 2.1-1, shrimpers appear to 
generally work within and on the edge of the entrance channel out to 
near the ODMDS disposal zone, and then they either head north or south 
and loop back inland (Mark Messersmith, Charleston District, USACE 
pers. corr. with Wayne Magwood, President, Magwood Seafood). Based on 
this information, it appears this site is outside of primary shrimping 
grounds.
    The predominant net sediment transport is generally from NE to SW 
and is influenced by local and regional wind and current patterns as 
well as periodic storm events. Therefore, disposal of dredged material 
in a site located on the north side of the entrance channel may result 
in sediment transport into the channel. Alternative 3 is 7 mi (6 nmi) 
farther offshore than Alternative 1, which would significantly increase 
transit times and fuel costs. This site is also in close proximity to 
the anchorage area, which could impact transit routes to and from the 
ODMDS. Primarily due to concerns about dredged material being deposited 
back into the entrance channel, increased transportation costs, and the 
need for additional surveys to assess hardbottom and cultural 
resources, this alternative is eliminated from further consideration 
for this proposed action.
3. Alternative 4: Disposal Off the Continental Shelf
    The continental slope is approximately 55 nmi offshore of 
Charleston. Disposal off the continental shelf (shelf break) was 
evaluated in detail the 1983 ODMDS Designation EIS document. In 
comparison to locating the site in the nearshore region, it was 
determined that monitoring and surveillance would be more difficult and 
expensive in the shelf break area because of the distance from shore to 
the deeper waters. There would be a likelihood of a higher frequency of 
rough weather that could hinder disposal and monitoring operations.
    Alternative 4 was considered during initial alternatives analysis; 
however, transporting material to and performing long-term monitoring 
of a site located off the continental shelf is not economically or 
operationally feasible; therefore, disposal off the continental shelf 
is eliminated from further consideration for this proposed action.
4. Alternative 5: Upland Disposal
    Upland disposal is an important option for maintenance dredged 
material removed from the federal navigation channel. To ensure that 
adequate project depth is maintained throughout the navigation channel 
within Charleston Harbor, USACE uses several upland placement areas to 
meet dredged material disposal needs within certain reaches of the 
harbor. The sites are adjacent to the Cooper River in the vicinity of 
the shoaling areas, allowing for the economical transfer of dredged 
material from the shoaled areas. The upland placement areas require the 
maintenance and construction of dikes to contain dredged material and 
monitoring to provide conformance with environmental requirements. 
Dredged material is pumped into the sites and the excess surface water 
is clarified by ponding and then released through weir structures.
    Upland and ocean disposal site capacity were evaluated as part of 
the Charleston Harbor Post 45 Deepening IFR/EIS. Upland sites will 
continue to be used and dikes will need to be raised to provide 
additional capacity at these sites. Based on recent analysis conducted 
in 2014, assuming on-going dike raising efforts continue, there is 
sufficient capacity for at least the next 20 years. However even with 
dike raising, it was determined that additional ocean disposal capacity 
will be needed to accommodate continued dredged material operations and 
maintenance in the future.
    Alternative 5 was considered during initial alternatives analysis; 
however, even with dike raising efforts upland capacity and land for 
new disposal areas are limited. Although upland disposal has been 
eliminated from further evaluation in this EA, it remains an option for 
disposal of maintenance material from various reaches when economically 
feasible and capacity is available or if dredged material is unsuitable 
for ocean disposal. Each dredging project will be evaluated separately 
to determine if upland disposal is an option. A MPRSA Section 103 
evaluation was conducted on the new work material, and it was 
determined to be suitable for ocean disposal. Therefore, dredged 
material generated from the deepening project is expected to be 
disposed at the ODMDS.
5. Alternative 6: Beach Nourishment, Nearshore Placement, and Other 
Beneficial Uses
    The Federal Government has placed considerable emphasis on using 
dredged material in a beneficial manner. Statutes such as the Water 
Resources Development Acts of 1992, 1996, 2000, and 2007 demonstrate 
that beneficial use has been a Congressional priority. USACE has 
emphasized the use of dredged material for beneficial use through such 
regulations as 33 CFR part 335, ER 1105-2-100, and ER 1130-2-520 and by 
Policy Guidance Letter No. 56. ER 1105-2-100 states that ``all dredged 
material management studies include an assessment of potential 
beneficial uses for environmental purposes including fish and wildlife 
habitat creation, ecosystem restoration and enhancement and/or 
hurricane and storm damage reduction.'' In accordance with ER 1105-2-
100, USACE is considering beneficial use of dredged material as part of 
the Charleston Harbor Post 45 Project. Potential beneficial uses 
include:

 ODMDS berm creation
 Reef placement
 Crab Bank enhancement
 Shutes Folly enhancement
 Nearshore placement off Morris Island
 Protection of Ft. Sumter

    Details on volumes and construction methods for other beneficial 
use projects will be evaluated during the pre-construction, 
engineering, and design (PED) phase.

[[Page 45268]]

    Alternative 6 was considered during initial alternatives analysis; 
however, the majority of the material dredged from the Charleston 
Harbor Navigation Project is not suitable for beach nourishment, 
nearshore placement, or other beneficial uses. This alternative alone 
does not meet the project need for additional disposal capacity for 
material dredged during the proposed deepening project or annual 
maintenance material. Therefore, this alternative is eliminated from 
further consideration for this proposed action. However, a portion of 
rock material dredged from the entrance channel is proposed to be used 
to construct the berms along the perimeter of the Alternative 1 site to 
minimize sediment transport from the site. The added benefit associated 
with berm construction includes hardbottom habitat creation.
6. No Action Alternative
    The No Action Alternative is defined as not modifying the existing 
Charleston ODMDS disposal zone pursuant to MPRSA Section 102. The 
current capacity of the existing 4-mi\2\ disposal zone within the ODMDS 
is approximately 29.5 mcy (USACE 2014b). If no action is taken, the 
estimated volume of dredge material from the Post 45 deepening project 
that is slated for ocean disposal will fill the existing Charleston 
ODMDS almost to capacity. There would not be enough capacity left for 
disposal of O&M projects that are expected to generate approximately 
1.4 mcy of dredge material per year. The No Action Alternative could 
result in limiting the long-term use of the site and the amount of 
dredged material that could be removed from the Charleston Harbor 
navigation channels and berths per dredging event. This, in turn, could 
impact operations by restricting vessel drafts and access to areas that 
were unable to be dredged to authorized project depths. The No Action 
Alternative fails to fulfill the need and objective to provide a long-
term ocean disposal option for suitable dredged material generated from 
new projects and maintenance projects in support of the Charleston 
Harbor Federal Navigation Project and other local users. The 
availability of suitable ocean disposal sites to support ongoing 
navigation channel maintenance and capital improvement projects is 
essential for continued efficient commerce in the region. The No Action 
Alternative does not meet the proposed action's purpose and need. 
However, it was evaluated in the FEIS as a basis to compare the effects 
of the other alternatives considered.
7. Preferred Alternative: Modification of the Existing Charleston ODMDS
    The proposed ODMDS modification consists of the addition of a 5.8-
mi\2\ area (4.4 nmi\2\) along the northern, eastern, and southern 
boundaries of the existing Charleston ODMDS disposal zone. This area 
would be added to the existing 4-mi\2\ (3 nmi\2\) disposal zone and 
would be designated for disposal of dredged material from the future 
harbor deepening projects and routine maintenance material from the 
Charleston Harbor Navigation Project and other local users. The new 
Charleston ODMDS would have a total area comprising 9.8 mi\2\. Within 
the larger ODMDS, a dump zone is proposed that will serve as the 
boundaries that ocean dumping will occur in. This dump zone within the 
ODMDS was modeled using Long Term Fate and Multiple Placement Fate 
models. The EPA also proposes the de-designation of the remaining area 
within the boundaries of the existing 12 nmi\2\ Charleston ODMDS 
(parallelogram) located primarily in the western portion of the site 
that is not included in the disposal zone or the proposed modification 
area. The area to be de-designated is approximately 10.4 mi\2\ (7.8 
nmi\2\) in size and contains documented hardbottom habitat.
    The Final EA presents the information needed to evaluate the 
suitability of ocean disposal areas for final designation use and is 
based on a series of disposal site environmental studies. The 
environmental studies and final designation are being conducted in 
accordance with the requirements of MPRSA, the Ocean Dumping 
Regulations, and other applicable Federal environmental legislation.

b. MSA

    The EPA integrated the essential fish habitat (EFH) assessment with 
the EA, pursuant to Section 305(b), 16 U.S.C. 1855(b)(2), of the 
Magnuson-Stevens Act, as amended (MSA), 16 U.S.C. 1801 to 1891d, and 
submitted that assessment to the National Marine Fisheries Service 
(NMFS) on December 4, 2015. The NMFS responded via letter that they 
have no comments on the proposed project.
CZMA
    Pursuant to an Office of Water policy memorandum dated October 23, 
1989, the EPA has evaluated the proposed site designations for 
consistency with the State of South Carolina's (the State) approved 
coastal management program. The EPA has determined that the designation 
of the proposed site is consistent to the maximum extent practicable 
with the State coastal management program, and submitted this 
determination to the State for review in accordance with the EPA 
policy. The State conditionally concurred with this determination on 
February 17, 2016. The EPA has taken the State's comments into account 
in preparing the FEA for the site, in determining whether the proposed 
site should be designated, and in determining whether restrictions or 
limitations should be placed on the use of the site, if they are 
designated.
ESA
    The Endangered Species Act, as amended (ESA), 16 U.S.C. 1531 to 
1544, requires Federal agencies to consult with NMFS and the U.S. Fish 
and Wildlife Service (USFWS) to ensure that any action authorized, 
funded, or carried out by the Federal agency is not likely to 
jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of any critical habitat. The EPA incorporated a Biological Assessment 
(BA) into the EA to assess the potential effects of expanding the 
Charleston ODMDS on aquatic and wildlife species and submitted that 
document to the NMFS and USFWS on December 4, 2016. The EPA concluded 
that the proposed project would not adversely affect any threatened or 
endangered species, nor would it adversely modify any designated 
critical habitat. The USFWS concurred on the EPA's finding that the 
proposed action is not likely to adversely affect listed endangered or 
threatened species under the jurisdiction of the USFWS. The NMFS 
concluded the proposed action is not likely to adversely affect listed 
species under their jurisdiction.

c. NHPA

    The USACE and the EPA initiated consultation with the State of 
South Carolina's Historic Preservation Officer (SHPO) on December 4, 
2015, to address the National Historic Preservation Act, as amended 
(NHPA), 16 U.S.C. 470 to 470a-2, which requires Federal agencies to 
take into account the effect of their actions on districts, sites, 
buildings, structures, or objects, included in, or eligible for 
inclusion in the National Register of Historic Places (NRHP). In a 
letter dated January 6, 2016, the SHPO determined that no properties 
listed in or eligible for listing in the National Register of Historic 
Places will be affected by the project.

[[Page 45269]]

IV. Statutory and Executive Order Reviews

    This rulemaking proposes the designation of a modified ODMDS 
pursuant to Section 102 of the MPRSA. This proposed action complies 
with applicable executive orders and statutory provisions as follows:

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

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

b. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
Burden is defined at 5 CFR 1320.3(b). This proposed site designation, 
does not require persons to obtain, maintain, retain, report, or 
publicly disclose information to or for a Federal agency.

c. Regulatory Flexibility

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

d. Unfunded Mandates Reform Act

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

e. Executive Order 13132: Federalism

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

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

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 because the modification of the 
Charleston ODMDS will not have a direct effect on Indian Tribes, on the 
relationship between the federal government and Indian Tribes, or on 
the distribution of power and responsibilities between the federal 
government and Indian Tribes. Thus, Executive Order 13175 does not 
apply to this action. The EPA specifically solicits additional comments 
on this proposed action from tribal officials.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern health or safety risks, such that the 
analysis required under Section 5-501 of the Executive Order has the 
potential to influence the regulation. This proposed action is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks. The 
proposed action concerns the modification of the Charleston ODMDS and 
only has the effect of providing a designated location for ocean 
disposal of dredged material pursuant to Section 102(c) of the MPRSA. 
However, we welcome comments on this proposed action related to this 
Executive Order.

h. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed action is not subject to Executive Order 13211, 
``Actions Concerning Regulations that Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355) because it is not a 
``significant regulatory action'' as defined under Executive Order 
12866. However, we welcome comments on this proposed action related to 
this Executive Order.

i. National Technology Transfer and Advancement Act

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

[[Page 45270]]

explain why such standards should be used in this proposed action.

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

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

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

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

    Dated: June 22, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.

    For the reasons set out in the preamble, the EPA proposes to amend 
chapter I, title 40 of the Code of Federal Register as follows:

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 revising paragraphs (h)(5)(i) through 
(iii) and (vi) to read as follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (5) * * *
    (i) Location: 32[deg]36.280' N., 79[deg]43.662' W.; 32[deg]21.514' 
N., 79[deg]46.576' W.; 32[deg]20.515' N., 79[deg]45.068' W.; 
32[deg]20.515' N., 79[deg]42.152' W.
    (ii) Size: Approximately 7.4 square nautical miles in size.
    (iii) Depth: Ranges from approximately 30 to 45 feet (9 to 13.5 
meters).
* * * * *
    (vi) Restrictions: (A) Disposal shall be limited to dredged 
material from the Charleston, South Carolina, area;
    (B) Disposal shall be limited to dredged material determined to be 
suitable for ocean disposal according to 40 CFR 227.13;
    (C) Disposal shall be managed by the restrictions and requirements 
contained in the currently-approved Site Management and Monitoring Plan 
(SMMP);
    (D) Monitoring, as specified in the SMMP, is required.
* * * * *
[FR Doc. 2016-16584 Filed 7-12-16; 8:45 am]
BILLING CODE 6560-50-P