[Federal Register Volume 86, Number 30 (Wednesday, February 17, 2021)]
[Rules and Regulations]
[Pages 9873-9879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02731]



[[Page 9873]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R09-OW-2020-0188; FRL-10016-87-Region 9]


Ocean Dumping: Modification of an Ocean Dredged Material Disposal 
Site Offshore of Humboldt Bay, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is permanently 
modifying the boundaries of the existing EPA-designated Humboldt Open 
Ocean Disposal Site (referred to hereafter as HOODS) offshore of 
Humboldt Bay, California, pursuant to Section 102 of the Marine 
Protection, Research and Sanctuaries Act, as amended (MPRSA). The 
primary purpose for the site modification is to enlarge the site to 
serve the long-term need for disposal of permitted, suitable material 
dredged from Humboldt Harbor and vicinity, in order to provide for 
continued safe navigation in the vicinity of Humboldt Bay. The modified 
site will be subject to monitoring and management to ensure continued 
protection of the marine environment.

DATES: Effective March 19, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OW-2020-0188. All documents in the docket are 
listed on the https://www.regulations.gov website, or please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section 
for additional availability information. If you need assistance in a 
language other than English or if you are a person with disabilities 
who needs a reasonable accommodation at no cost to you, please contact 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Brian Ross, U.S. Environmental 
Protection Agency Region 9, Water Division, Dredging & Sediment 
Management Team, 75 Hawthorne Street, San Francisco, California 94105; 
phone number (415) 972-3475; email: [email protected].

SUPPLEMENTARY INFORMATION: The supporting document for this site 
modification action is the Final Evaluation and Environmental 
Assessment for Expansion of the Existing Humboldt Open Ocean Disposal 
Site (HOODS) Offshore of Eureka, California (Final EA). This document 
and its appendices are available via the EPA website https://www.epa.gov/ocean-dumping/humboldt-open-ocean-disposal-site-hoods-documents.

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 MPRSA, 33 U.S.C. 1401 to 1445. The EPA's 
action would be relevant to persons, including organizations and 
government bodies seeking to dispose of dredged material in ocean 
waters offshore of Humboldt Bay, California. 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
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Federal Government................  USACE Civil Works projects, and
                                     other Federal agencies.
Industry and general public.......  Port authorities, marinas and
                                     harbors, shipyards and marine
                                     repair facilities, berth owners.
State, local and tribal             Governments owning and/or
 governments.                        responsible for ports, harbors, and/
                                     or berths, government agencies
                                     requiring disposal of dredged
                                     material associated with public
                                     works projects.
------------------------------------------------------------------------

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

II. Background

a. History of Ocean Disposal Offshore Humboldt Bay, California

    HOODS is the only designated ocean dredged material disposal site 
(ODMDS) off the coast of Humboldt Bay, California. The original HOODS 
was located three to four nautical miles (nmi) offshore Humboldt Bay, 
and was one square nautical mile (nmi\2\) in size. HOODS originally 
received final designation by the EPA in 1995. Since that time an 
average of one million cubic yards (cy) of dredged material has been 
disposed at HOODS each year. The great majority of this material has 
been sand dredged by USACE from the Humboldt Harbor entrance channel. 
The dredged sand that has been disposed at HOODS has mounded to the 
point where the site is now effectively reaching full capacity. The 
USACE San Francisco District and EPA Region 9 have identified a need to 
increase the capacity of HOODS so that ongoing dredging can continue to 
provide for safe navigation in and around Humboldt Bay. The need for 
increasing ocean disposal capacity at HOODS is based on historical 
dredging volumes, estimates of future dredging needs, and currently 
limited availability of alternatives to ocean disposal in the area.
    The EPA is modifying the existing HOODS boundaries rather than 
designating a new ocean disposal site off the coast of Humboldt Bay. 
Monitoring studies at HOODS have confirmed that there have been no 
significant adverse environmental consequences of disposal in this 
area, and that there are no unique or limited habitats, features, or 
uses of the ocean that would be affected by expanding the site. Note 
that modifying the existing HOODS boundary does not by itself mean that 
dredged material from any specific project will necessarily be approved 
to be disposed at the site. Before any person can ocean dump dredged 
material at HOODS, the EPA and the USACE must evaluate the project 
according to the ocean dumping regulatory criteria (40 CFR 227) and the 
USACE must authorize the disposal under section 103 of the MPRSA. 33 
U.S.C. 1413(b). The USACE relies on the EPA's ocean dumping criteria 
when evaluating permit requests for (and implementing federal projects 
involving) the transportation of dredged material for the purpose of 
dumping it into ocean waters. MPRSA permits and federal approvals for 
projects involving ocean dumping of dredged material are subject to the 
EPA's review and concurrence in accordance with 33 U.S.C. 1413(c). The 
EPA may concur with or without conditions or decline to concur (i.e., 
non-concur) on the permit or federal project authorization. If the EPA 
concurs with conditions, the final permit or authorization must include 
those conditions. If the EPA declines to concur, the USACE cannot issue 
the permit for ocean dumping of dredged material or authorize the 
transportation to and disposal of dredged material in

[[Page 9874]]

the ocean associated with the federal project.
    The draft Environmental Assessment (EA) supporting this action, 
along with other publicly available docket materials, was made 
available for public review at www.regulations.gov, and also on the EPA 
Region 9 web page: https://www.epa.gov/ocean-dumping/humboldt-open-ocean-disposal-site-hoods-documents. EPA received comments from a total 
of four entities. Comments received, and EPA's responses, are 
summarized below.

b. Location and Configuration of the Modified HOODS

    This action is the modification (by expansion) of the original 
HOODS. The modified boundaries expand the original HOODS from one 
nmi\2\ to four nmi\2\ in size. The modified HOODS is in approximately -
150 to -210 feet of water (-45 to -64 meters). The location of the 
modified site is defined by the coordinates listed below. These new 
boundaries supersede and replace the original boundaries of HOODS. The 
coordinates for the expanded site are in North American Datum 83 (NAD 
83):

Modified HOODS Coordinates (NAD 83)

(A) 40[deg]50.300' N, 124[deg]018.017' W
(B) 40[deg]49.267' N, 124[deg]15.767' W
(C) 40[deg]47.550' N, 124[deg]17.083' W
(D) 40[deg]48.567' N, 124[deg]19.300' W

    The modification of the HOODS boundary will allow the EPA to 
adaptively manage the site to maximize its capacity, manage mounding 
and loss of fine sediments outside of the site, and minimize the 
potential for any long-term adverse effects to the marine environment.

c. Management and Monitoring of the Site

    The modified HOODS is expected to continue to receive suitable 
dredged material from the Federal navigation project at Humboldt 
Harbor, California, and suitable dredged material from other local and 
regional dredging applicants who obtain an MPRSA permit for the 
disposal of dredged material at the site. Under the Ocean Dumping 
regulations (40 CFR 228.3(b)), EPA is responsible for the management of 
all ocean disposal sites designated under the MPRSA. Management of the 
ocean disposal sites consists of regulating the times, quantity and 
characteristics of the material dumped at the site; establishing 
disposal controls, conditions and requirements to avoid and minimize 
potential impacts to the marine environment; and monitoring the site 
and surrounding environment to verify that unanticipated or significant 
adverse effects are not occurring from past or continued use of the 
ocean disposal site and that terms of the MPRSA permit are met. All 
persons using HOODS will be required to follow any project-specific 
permit conditions, as well as provisions of the updated Site Management 
and Monitoring Plan (SMMP) for the modified site as identified or 
incorporated into a permit or Federal project approval. The updated 
SMMP is available as an appendix to the Final EA, and separately at 
https://www.epa.gov/ocean-dumping/humboldt-open-ocean-disposal-site-hoods-documents. It includes management and monitoring considerations 
to ensure that disposal activities will not unreasonably degrade or 
endanger the marine environment, human health, welfare, or economic 
potentialities. The updated SMMP for the modified HOODS also includes 
management conditions to ensure adverse mounding does not occur at the 
site, and that the minimum area of the modified site is affected by 
disposal in any year.

d. MPRSA Criteria

    In evaluating the modified HOODS, the EPA assessed the site 
according to the criteria of the MPRSA, with emphasis on the general 
and specific regulatory criteria of 40 CFR part 228, to determine 
whether the site modification action satisfies those criteria. The 
Final EA provides a detailed evaluation of the criteria and other 
related factors for the modification of HOODS.
General Criteria (40 CFR 228.5)
    (a) Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or shellfisheries, and regions of heavy commercial 
or recreational navigation. (40 CFR 228.5(a)).
    The original 1995 site designation identified the HOODS location as 
having the least potential for adverse impacts to important fish and 
shellfish resources (particularly including smelt, flatfish, and 
decapods which are all most abundant in waters shallower than 50 m in 
the area, closer to shore). In addition, as part of development of the 
Final EA supporting this action, the EPA completed informal 
consultation with the National Marine Fisheries Service (NMFS) and the 
U.S. Fish and Wildlife Service (USFWS), and confirmed that ongoing use 
of the modified HOODS would continue to avoid adverse effects on 
existing fisheries, shellfisheries, or habitats of concern. In 
addition, expansion of HOODS will ensure that mounding of disposed sand 
does not occur to the extent that the wave climate near the Humboldt 
entrance channel is altered and adversely affects navigation 
conditions. This action therefore satisfies this MPRSA criterion.
    (b) 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 HOODS modification area will be used for disposal of suitable 
dredged material as determined by Section 102 of the MPRSA, 33 U.S.C. 
1412, and the Ocean Dumping Criteria published at 40 CFR 220-228. Based 
on the USACE and EPA dredged material testing and evaluation 
procedures, disposal of dredged maintenance material and proposed new 
work material is not expected to have any significant impact on water 
quality. The existing and modified HOODS boundaries are located 
sufficiently far from shore and fisheries resources to allow temporary 
water quality disturbances caused by disposal of dredged material to be 
reduced to ambient conditions before reaching any environmentally 
sensitive areas.
    (c) 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 modified HOODS 
boundaries provide long-term capacity, while also permitting effective 
site management, site monitoring, and limiting environmental impacts to 
the surrounding area to the greatest extent practicable.
    The Final EA supporting this action considered two alternatives for 
modifying HOODS: Expansion by 0.5 nmi to the north and west; and 
expansion by 1.0 nmi to the north and west (the selected action). Under 
the selected action, the effective total capacity of the site increases 
from the original 25 million cy to over 100 million cy (i.e., allowing 
for 75 million cy of additional disposal to occur), before mounding to 
-130 feet could again occur across the entire site. If

[[Page 9875]]

today's disposal practices were to continue unchanged (i.e., if an 
average of 1 million cy of entrance channel sand per year were to 
continue being disposed of at HOODS indefinitely), the site would reach 
capacity again in about 75 years. In contrast, the smaller expansion 
alternative would provide effective capacity for about 30 years of 
disposal. This smaller footprint would also limit on-site management 
options compared to the selected action.
    When determining the size of the modified site, the ability to 
implement effective monitoring and surveillance programs was considered 
to ensure that the environment of the site could be protected, and that 
navigational safety would not be compromised by the mounding of dredged 
material. The EPA and USACE have demonstrated that the modified HOODS 
area is feasible to manage and monitor, as shown by successful surveys 
in 2008 and 2014. The updated SMMP (Appendix D of the Final EA) 
describes the future monitoring and management activities that the EPA 
and USACE will implement to confirm that disposal at the site is not 
significantly affecting adjacent areas.
    (d) 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 shelf break is approximately 10 nmi offshore at 
Eureka, California. The Zone of Siting Feasibility (ZSF) analysis 
prepared by USACE in support of the original (1995) HOODS designation 
determined that an economically practicable ocean disposal site serving 
Humboldt Harbor could not be located off the continental shelf, but 
rather would have to be within approximately 4 nmi from the ends of the 
entrance channel jetties. The original HOODS boundary is 2.5 to 3.7 nmi 
from these jetties. The modified HOODS boundary will extend from 3 nmi 
to 5 nmi from the jetties, largely encompassing and superseding the 
original boundary. While portions of the modified site are slightly 
beyond the original ZSF threshold of 4 nmi, the expansion area remains 
as close to the entrance channel as practicable while allowing capacity 
for future disposal needs without creating potentially unsafe mounding. 
Also, the modified HOODS will occur immediately adjacent to where 
disposal of virtually identical dredged material has occurred for the 
past 25 years. This allows the least area to be disturbed overall from 
ongoing and future disposal activity.
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 modified HOODS is on the continental shelf three to five nmi 
offshore of Eureka, California, in water depths of approximately 150 to 
210 feet (45 to 64 m). The seafloor in this area is comprised of a 
gently sloping, essentially featureless sedimentary plain that grades 
evenly from fine sand in shallower depths to silts in deeper areas. The 
EA contains a map of the modified HOODS boundaries.
    (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 HOODS area provides feeding and breeding areas for common 
resident benthic organisms, fish, marine mammal, turtle, and seabird 
species. However, the modified HOODS boundaries have been selected to 
avoid the presence of any unique or limited breeding, spawning, 
nursery, feeding, or passage areas for adult or juvenile phases of 
living resources and modification of the site is not expected to affect 
any geographically limited (i.e., unique) resources or habitats. 
Informal Endangered Species Act (ESA) consultation with USFWS, and both 
ESA and Essential Fish Habitat (EFH) consultations with NMFS, confirmed 
that ongoing disposal operations in the modified HOODS will not have 
significant impacts to sensitive living resources or their habitats.
    (3) Location in Relation to Beaches and Other Amenity Areas. (40 
CFR 228.6(a)(3)).
    The modified HOODS boundaries begin at approximately three nmi 
offshore and the square site extends two nmi further offshore. The site 
is therefore well removed from beaches or amenity areas, and currents 
in the area are not expected to transport material disposed at HOODS 
toward shore. No significant impacts to beaches or amenity areas 
associated with use of the existing HOODS have been detected.
    (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 suitable dredged material that meets the Ocean Dumping 
Criteria in 40 CFR 220-228 and receives a permit or is otherwise 
authorized for dumping by the USACE, and concurred with by EPA, will be 
disposed in the modified HOODS. Dredged materials dumped in this area 
will be primarily sand with some fines, and most will originate from 
Humboldt Harbor. Average yearly disposal of dredged material is 
expected to continue to be approximately 1,000,000 cubic yards, 
primarily by government owned or contracted hopper dredges. None of the 
material is packaged in any manner. If a Nearshore Sand Placement Site 
(NSPS) is established nearby in the future, the volume of sand disposed 
at HOODS could substantially decrease.
    (5) Feasibility of Surveillance and Monitoring. (40 CFR 
228.6(a)(5)).
    The EPA expects monitoring and surveillance at the modified HOODS 
to continue to be feasible and readily performed from ocean or regional 
class research vessels. The area of the modified HOODS has been 
successfully surveyed and sampled in 2008 and 2014. The EPA and USACE 
will continue to periodically monitor the site for physical, biological 
and chemical attributes, as described in the draft SMMP for the 
proposed modified site.
    (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)).
    Ocean current monitoring in the vicinity of HOODS has confirmed 
both up- and down-coast current directions (depending on the season), 
with near-surface current velocities on the order of 25 cm/sec (0.5 
knot), and deeper-water current velocities of 20 cm/sec (0.4 knot) at 
45 meters deep and 15 cm/sec (0.3 knot) at the bottom. These current 
conditions have not adversely affected the ability to successfully and 
precisely dispose of dredged material permitted or authorized for 
disposal at HOODS in the past nor are they expected to affect disposal 
in the future.
    (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 at the existing HOODS has 
resulted in mounding of sand and burial of benthic organisms within the 
site but no discernable physical, chemical, or biological effects 
outside the site. Water quality effects from active disposal are 
temporary, spatially limited, and return to background levels prior to 
the next disposal event. Short-term, long-term, and cumulative effects 
of dredged material disposal in the modified site would be negligible, 
and similar to those for the existing HOODS.
    The only discharge in the vicinity of HOODS is from DG Fairhaven 
Power LLC's Fairhaven Power Facility on the Samoa Peninsula. Fairhaven 
Power is permitted to discharge a maximum of

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0.35 million gallons per day of powerplant-related process water, 
cooling tower water, and other wastewater under terms of their current 
National Pollutant Discharge Elimination System (NPDES) permit No. 
CA0024571, issued by the State of California's North Coast Water Board. 
The company discharges through an existing outfall into ocean waters 
adjacent to the Samoa Peninsula. The NPDES permit prohibits discharging 
wastewater in violation of effluent standards or prohibitions 
established under Section 307(a) of the Clean Water Act, and it also 
prohibits discharging sewage sludge. The outfall is located 
approximately 3.5 nautical miles (6.5 kilometers) east of the HOODS. 
Prevailing nearshore currents would direct discharge plumes from this 
outfall up or down the coast, depending of the seasonal current regime, 
not offshore towards the HOODS. The EPA believes that there will be no 
adverse cumulative or synergistic impacts from the use of HOODS and 
discharges from the outfall described.
    (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)).
    Minor, short-term interferences with commercial and recreational 
boat traffic may occur within Humboldt Harbor during dredging 
operations. However, interference as a result of the transport and 
disposal of dredged material to HOODS would be even less because 
disposal vessels move slowly, remain in established navigation 
channels, and operations are announced via U.S. Coast Guard Notice to 
Mariners. There may be minor, temporary interferences with recreational 
fishing in the area during disposal operations, but HOODS is not closed 
to fishing or other uses. HOODS has not been identified as an area of 
special scientific importance. There are no aquaculture areas near the 
site. The likelihood of direct interference with these activities is 
therefore negligible.
    (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 at the existing HOODS is typical of waters offshore 
of the northern California coast. Monitoring conducted in the vicinity 
of the proposed modified HOODS and experience with past disposals in 
the existing HOODS have not identified any adverse water quality 
impacts from ocean disposal of dredged material. Water column plumes 
associated with disposal events rapidly return to background, before 
subsequent disposal events occur. The seafloor in this area is 
comprised of a gently sloping, essentially featureless sedimentary 
plain that grades evenly from fine sand in shallower depths to silts in 
deeper areas. The existing HOODS supports benthic and epibenthic fauna 
characteristic of the region, but there are no unique or limited 
habitats in the vicinity. No adverse impacts to benthos outside the 
disposal site have been identified based on comprehensive monitoring.
    (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 modified HOODS. Disposal of dredged material, as well 
as monitoring, has been ongoing for the past 25 years. The dredged 
material to be disposed at the modified site is expected to be from 
similar locations to those dredged previously and disposed of at the 
existing site; therefore, it expected that any benthic organisms 
transported to the site would be relatively similar in nature to those 
already present.
    (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)).
    EPA extended government-to-government consultation offers to 10 
potentially affected tribes. The Tribal Historic Preservation Offices 
of three of those (the Wiyot Tribe, the Blue Lake Rancheria, and the 
Bear River Band of the Rohnerville Rancheria) requested further 
discussion. Based on those discussions, the tribes determined that the 
offshore location of the HOODS expansion would not affect their onshore 
cultural resources of concern.
    EPA also evaluated state records and coordinated with the 
California State Lands Commission concerning historic shipwrecks near 
HOODS. The EA documents that the nearest recorded shipwreck sites are 
close to shore and would not be affected by ongoing disposal at HOODS. 
In addition, USACE conducted a survey for potential shipwrecks near the 
existing HOODS in 1991 (prior to designation of the existing HOODS). 
The USACE survey identified three magnetic anomalies that could 
potentially be associated with unrecorded shipwrecks. None of these 
anomalies has been buried by the existing HOODS disposal mound. The EPA 
collected high-resolution multibeam echo sounder data in 2014 at the 
locations of each magnetic anomaly, and confirmed that no debris, 
structures, or other material extended above the sediment surface at 
any of these locations. Because these anomalies do not extend above the 
surface now, and apparently have not since at least 1991, their exact 
character remains unknown. Ongoing disposal operations may effectively 
bury these features further but will not otherwise directly affect 
them.

III. Environmental Statutory Review

a. National Environmental Policy Act (NEPA)

    The EPA's primary voluntary NEPA document for modifying the 
original HOODS is the Final EA, prepared by the EPA in cooperation with 
the USACE. The draft EA was issued for public review simultaneously 
with the proposed rule on May 29, 2020. The Final EA, including all 
public comments received and EPAs responses to comments, is being 
published simultaneously with this final rule and is also available 
separately at https://www.epa.gov/ocean-dumping/humboldt-open-ocean-disposal-site-hoods-documents. The Final EA and its Appendices provide 
the threshold environmental review for modification of HOODS. It 
discusses in detail the purpose and need for the proposed action and 
examines alternatives. The EPA determined that there would be no 
significant adverse impacts of implementing either of the action 
alternatives evaluated for modifying HOODS.
    The following three ocean disposal alternatives were considered in 
detail in the Final EA.
No Action Alternative
    The No Action Alternative is defined as not modifying the size of 
the original HOODS boundaries. This alternative would not address the 
need for an adequately sized ocean disposal site to accommodate an 
annual average of 1,000,000 cy of ongoing and future dredging. Because 
there is no other currently available disposal site for this material, 
rapid shoaling of the entrance channel would quickly render navigation 
unsafe, significantly affecting the economy of the greater Eureka area. 
Increased wave action in the Harbor entrance would endanger commercial 
ships as well as fishing and recreational vessels. This situation would 
discourage shippers from using Humboldt Bay for commerce, because it 
requires additional vessel trips to accommodate ``light-loaded'' 
vessels, resulting in increased transportation costs, decreased vessel 
safety, and maneuvering problems. This would

[[Page 9877]]

have a long-term adverse impact on the local economy. In addition, use 
of the Humboldt Harbor as a port of refuge could be affected. Finally, 
ship groundings caused by improperly maintained deep-draft channels 
could result in adverse ecological repercussions (i.e., oil and fuel 
spills). Although the No Action Alternative would not address the 
purpose and need for action, it was evaluated as a basis to compare the 
effects of the other alternatives considered.
Alternative 1: Expansion of HOODS by 1 nmi (Preferred Alternative)
    Alternative 1, the Selected Action, is to slightly reorient and 
expand the existing HOODS boundary by one nmi to the north (upcoast) 
and one nmi to the west (offshore). Alternative 1 is the Selected 
Action because it would provide environmentally acceptable disposal 
capacity for many years, while also affording the most operational 
flexibility for managing the dredged material in a manner that would 
further minimize even physical impacts over time. This configuration 
would result in the total area of the site increasing from one square 
nmi to four square nmi, and would supersede the original HOODS 
boundary. The effective total capacity of the site would increase from 
the original 25 million cy to over 100 million cy (i.e., allowing for 
75 million cy of additional disposal to occur), before mounding to -130 
feet could again occur across the entire site. If current disposal 
practices were to continue unchanged (i.e., if 1 million cy of entrance 
channel sand per year were to continue to be disposed of at HOODS 
indefinitely), the modified site would reach capacity in about 75 
years.
Alternative 2: Expansion of HOODS by \1/2\ nmi
    Alternative 2 is the expansion of the existing HOODS boundary by 
\1/2\ nmi to the north (upcoast) and \1/2\ nmi to the west (offshore). 
This configuration would result in the total area of the site 
increasing from 1 square nmi to 2.25 square nmi and would supersede the 
original HOODS boundary. The effective total capacity of the site would 
increase from the original 25 million cy to approximately 56 million cy 
(i.e., allowing for approximately 31 million cy of additional disposal 
to occur), before mounding to -130 feet could again occur across the 
entire site. If current disposal practices were to continue unchanged 
(i.e., if 1 million cy per year of entrance channel sand were to 
continue to be disposed of at HOODS indefinitely), the modified site 
would reach capacity in about 31 years.

b. Magnuson-Stevens Act

    The EPA submitted an EFH assessment to the NMFS, pursuant to 
Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-Stevens Fishery 
Conservation and Management Act, as amended, 16 U.S.C. 1801 to 1891. 
The EPA determined that this action will not significantly affect 
managed species or EFH. NMFS concurred with the EPA's determination, 
but included one Conservation Recommendation to further minimize 
potential impacts. Specifically, NMFS recommended continuing to manage 
future disposal at HOODS by expanding the mound while leaving other 
areas of the site undisturbed as long as possible, rather than 
purposely spreading disposal events throughout the site each year. The 
updated SMMP discusses how EPA will implement this NMFS Conservation 
Recommendation.

c. Coastal Zone Management Act

    The EPA submitted a Consistency Determination (CD) package to the 
California Coastal Commission (CCC) on July 20, 2020, following the 
close of the public comment period on the draft EA and the proposed 
rule. The CD package specifically addresses how the proposed action to 
expand HOODS is consistent to the maximum extent practicable with the 
California Coastal Act Chapter 3 policies. On October 9, 2020, the CCC 
unanimously concurred with EPA's CD and did not propose any additional 
measures beyond those already contained in the updated SMMP.

d. Endangered Species Act

    The ESA, as amended, 16 U.S.C. 1531 tthrough 1544, requires federal 
agencies to consult with NMFS and the 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 completed informal ESA consultations 
with USFWS and NMFS, and the consultations are included as an Appendix 
to the EA.
    Based on those consultations, the EPA determined that this action 
will have ``no effect'' on marine mammals, sea turtles and certain 
seabird species. The EPA further determined that this action ``may 
affect but is not likely to adversely affect'' anadromous fish 
(including the SONCC Coho ESU, the CC Chinook Salmon ESU, the NC 
Steelhead DPS, Eulachon, and sDPS Green Sturgeon), marbled Murrelet, 
and short-tailed albatross. The Services concurred with these findings 
and no additional mitigation measures were recommended beyond the 
avoidance and minimization aspects of the EPA mandatory disposal site 
use conditions which would apply to every project using HOODS (these 
conditions are included with the SMMP, and relevant provisions of the 
SMMP would be identified or incorporated into subsequently issued 
permits and Federal projects).

e. National Historic Preservation Act

    The National Historic Preservation Act (NHPA), 16 U.S.C. 470 
through 470a-2, requires federal agencies to consider 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). The depths of the expanded HOODS (approximately 
150-210 feet) generally excludes potential habitation or resources 
related to human settlements in this area. Historic shipwreck remnants 
do exist in the general vicinity, but none would be affected by ongoing 
disposal activities within the expanded HOODS boundaries.

IV. Statutory and Executive Order Reviews

    This rule modifies the HOODS by replacing the boundaries of the 
existing site with expanded boundaries, pursuant to Section 102 of the 
MPRSA, 33 U.S.C 1412. This 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 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. Executive Order 13089: Coral Reef Protection

    Executive Order 13089 on Coral Reef Protection directs agencies 
``to preserve and protect the biodiversity, health, heritage, and 
social and economic value of U.S. coral reef ecosystems and the marine 
environment.'' This E.O. does not apply to this action because there 
are no coral reef ecosystems in the HOODS area.

c. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction

[[Page 9878]]

Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This 
site modification does not require persons to obtain, maintain, retain, 
report, or publicly disclose information to or for a federal agency.

d. Regulatory Flexibility Act

    The Regulatory Flexibility Act 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 action will not 
have a significant economic impact on small entities because the rule 
will only have the effect of modifying an existing site in order to 
allow ongoing disposal of dredged material in ocean waters. After 
considering the economic impacts of this rule, the EPA certifies that 
this action will not have a significant economic impact on a 
substantial number of small entities.

e. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 
1531 through 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.

f. Executive Order 13132: Federalism

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

g. 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 modification of the existing HOODS 
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. In addition, the depths of the modified 
HOODS (approximately 150 to 200 feet) generally exclude potential 
habitation or resources related to human settlements. Thus, Executive 
Order 13175 does not apply to this action. Nevertheless, the EPA 
specifically solicited input from officials of 10 potentially 
interested tribal governments during both the scoping and public review 
phases of this action. EPA also extended government-to-government 
consultation offers to these 10 potentially affected tribes. The Tribal 
Historic Preservation Offices of three of them (the Wiyot Tribe, the 
Blue Lake Rancheria, and the Bear River Band of the Rohnerville 
Rancheria) requested further discussion concerning any potential for 
effects on cultural resources of concern. Based on those discussions, 
the tribes determined that the offshore location of the HOODS expansion 
would not affect onshore cultural resources.

h. 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 action is not subject to 
Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

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

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

j. 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 Office of Management and Budget, explanations when 
the Agency decides not to use available and applicable voluntary 
consensus standards. This action includes environmental monitoring and 
measurement as described in the updated SMMP. The EPA will not require 
the use of specific, prescribed analytic methods for monitoring and 
managing the modified HOODS. 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 
SMMP.

k. 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

[[Page 9879]]

EPA determined that this action 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 existing HOODS 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.

V. Response to Comments on the Proposed Rule, EA and SMMP

    EPA published the draft EA and the proposed rule for a 30-day 
public comment period on May 29, 2020, and accepted comments until June 
29, 2020. Both the draft EA and proposed rule were available at 
www.regulations.gov (Docket ID No. EPA-R09-OW-2020-0188) and at https://www.epa.gov/ocean-dumping/humboldt-open-ocean-disposal-site-hoods-documents.
    EPA received feedback from a total of four commenters on the draft 
EA and proposed rule. Most of the comments did not specify whether they 
applied to the EA, the proposed rule, or the SMMP; EPA therefore 
accepted them as applicable to all three documents. The full comments, 
and EPA's responses, are included in Appendix E to the Final EA and are 
summarized below. Based on the comments received, only minor, 
clarifying wording changes have been made to the Final EA, final rule, 
and updated SMMP.
    One citizen commenter supported expanding HOODS, asked how long 
before expansion might be needed again, hoped that expansion would 
cause no environmental harm, and recommended that dumping violations 
should be punished. EPA responded that the site should not need further 
expansion for approximately 75 years at present disposal rates; that 
EPA had substantial enforcement authority should violations occur; and 
that environmental impacts are not expected based on the prior 25 years 
of site use and the results of recent comprehensive monitoring studies.
    One agency commenter pointed out some potential for confusion 
regarding whether the modified HOODS boundary would completely 
supersede the original HOODS boundary on future NOAA navigation charts, 
or whether both old and new boundaries would be shown. The commenter 
pointed out that if both were shown, confusion could result because 
small corners of the old boundary would protrude from the (otherwise 
perfectly square) new boundary. EPA responded that the new boundary 
would completely supersede the original boundary on future NOAA 
navigation chart updates.
    Another agency commented that it looked forward to receiving EPA's 
consistency determination for the proposed boundary modification and to 
working with EPA staff on this submittal. EPA thanked the agency and 
noted that EPA would not publish the final rule for modifying HOODS 
until the agency's comments (if any) had been fully considered.
    The final agency commenter pointed out a minor typographical error 
in draft EA Section 4.4.1. This typographical error was corrected.

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: February 3, 2021.
Deborah Jordan,
Acting Regional Administrator, EPA Region 9.

    For the reasons set out in the preamble, the EPA amends chapter I, 
title 40 of the Code of Federal Regulations 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 paragraph (l)(10) to read as 
follows:


Sec.  228.15   Dumping sites designated on a final basis.

* * * * *
    (l) * * *
    (10) Humboldt Open Ocean Disposal Site (HOODS) Ocean Dredged 
Material Disposal Site--Region IX.
    (i) Location: The coordinates of the four corners of the square 
site are: 40[deg]50.300' North latitude (N) by 124[deg]018.017' West 
longitude (W); 40[deg]49.267' N by 124[deg]15.767' W; 40[deg]47.550' N 
by 124[deg]17.083' W; and 40[deg]48.567' N by 124[deg]19.300' W (North 
American Datum from 1983). The expanded disposal site boundary defined 
by these coordinates replaces and supersedes the previous boundary.
    (ii) Size: 4 square nautical miles (13.4 square kilometers).
    (iii) Depth: Water depths within the area range between 
approximately 150 to 210 feet (45 to 64 meters).
    (iv) Use Restricted to Disposal of: Disposal shall be limited to 
dredged material determined to be suitable for ocean disposal according 
to 40 CFR 220-228.
    (v) Period of Use: Continuing use for 50 years from the effective 
date of this updated site designation, subject to restrictions and 
provisions set forth in paragraph (l)(10)(vi) of this section.
    (vi) Restrictions/Provisions: Disposal at HOODS shall be in 
accordance with the permit or Federal project approval that 
incorporates all conditions set forth in the most recent Site 
Management and Monitoring Plan (SMMP) for the HOODS published by EPA in 
consultation with USACE, and as may be modified in EPA concurrences for 
individual projects disposing at HOODS. The SMMP may be periodically 
revised as necessary; proposed substantive revisions to the SMMP shall 
be made following opportunity for public review and comment.
* * * * *
[FR Doc. 2021-02731 Filed 2-16-21; 8:45 am]
BILLING CODE 6560-50-P