
[Federal Register Volume 80, Number 198 (Wednesday, October 14, 2015)]
[Rules and Regulations]
[Pages 61757-61765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26142]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R04-OW-2014-0372; FRL-9934-57-Region 4]


Ocean Dumping: Expansion of an Ocean Dredged Material Disposal 
Site Offshore of Jacksonville, Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule and technical amendment.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing an 
expansion of the ocean dredged material disposal site (ODMDS) site 
offshore of Jacksonville, Florida pursuant to the Marine Protection, 
Research and Sanctuaries Act, as amended (MPRSA). The EPA decided to 
finalize the expansion of the site because the site expansion is needed 
to serve the long-term need for a location to dispose of material 
dredged from the St. Johns River navigation channel, and to provide a 
location for the disposal of dredged material for persons or entities 
who have received a permit for such disposal. The newly expanded site 
will be subject to ongoing monitoring and management to ensure 
continued protection of the marine environment. In addition to the 
designation, the EPA now issues a technical amendment to correct a 
clerical error in the proposed rule.

DATES: The effective date of this final action shall be November 13, 
2015.

ADDRESSES: Docket: All documents in the Docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information may not be publicly available, e.g., confidential business 
information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, will 
be publicly available or in hard copy at the EPA Region 4 Office, 61 
Forsyth Street SW., Atlanta, Georgia 30303. The file will be made 
available for public inspection in the Region 4

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library between the hours of 9:00 a.m. and 4:30 p.m. weekdays. Contact 
the person listed in the FOR FURTHER INFORMATION CONTACT paragraph 
below to make an appointment. If possible, please make your appointment 
at least two working days in advance of your visit. There will be a 15 
cent per page fee for making photocopies of documents.

FOR FURTHER INFORMATION CONTACT: Jennifer Derby, 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) 562-9401; email: 
derby.jennifer@epa.gov.

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 
action would be relevant to persons, including organizations and 
government bodies seeking to dispose of dredged material in ocean 
waters offshore of Jacksonville, Florida. 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..  Governments owning and/or
                                        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 Jacksonville, Florida

    The existing Jacksonville ODMDS is located approximately 5 nautical 
miles (nmi) southeast of the mouth of the St. Johns River on the 
continental shelf off the east coast of Florida. It is currently 1 nmi 
by 1 nmi (1 nmi\2\) in size. Since 1952, the area now designated as the 
Jacksonville ODMDS and vicinity has been used for disposal of dredged 
material (e.g., sand, silt, clay, rock) primarily from the Jacksonville 
Harbor Navigation Project, Naval Station Mayport entrance channel, and 
Naval Station Mayport turning basin. The Jacksonville ODMDS received 
interim site designation status in 1977 and final designation in 1983.
    The USACE Jacksonville District and the EPA Region 4 have 
identified a need to either designate a new ODMDS or expand the 
existing Jacksonville ODMDS. The need for expanding current ocean 
disposal capacity is based on observed mounding at the Jacksonville 
ODMDS, 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. This section 
discusses in detail the current and future capacity issues at the 
existing Jacksonville ODMDS and CDFs.
    The expansion 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 Expanded Ocean Dredged Material 
Disposal Site

    This action proposes the expansion of the ocean dredged material 
site offshore of Jacksonville, Florida. The location of the expanded 
ocean dredged material disposal site is bounded by the coordinates, 
listed below, and shown in Figure 1. The expansion 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):
Expanded Jacksonville ODMDS
    (A) 30[deg]21.514' N. 81[deg]18.555' W.
    (B) 30[deg]21.514' N. 81[deg]17.422' W.
    (C) 30[deg]20.515' N. 81[deg]17.422' W.
    (D) 30[deg]20.515' N. 81[deg]17.012' W.
    (E) 30[deg]17.829' N. 81[deg]17.012' W.
    (F) 30[deg]17.829' N. 81[deg]18.555' W
    The expanded ODMDS is located in approximately 28 to 61 feet of 
water, and is located to 4.4 nmi offshore the mouth of the St. Johns 
River. The expanded ODMDS would be 3.7 nmi long on the west side and 
2.7 nmi long on the east side. It would be 1 nmi long on the north side 
and 1.3 nmi wide on the south side. It would be 4.56 nmi\2\ in size.

[[Page 61759]]

[GRAPHIC] [TIFF OMITTED] TR14OC15.000

c. Response to Comments Received

    On March 11, 2015, the EPA published a proposed rule to expand the 
site and opened a public comment period under Docket ID No. EPA-R04-OW-
2014-0372. The comment period closed on April 10, 2015. The EPA 
received six comments on the proposed rule. One comment was from the 
U.S. Department of the Interior stating they have no comments at this 
time. One commenter was in support of the expansion as it would protect 
wildlife by having a specific location for disposal of dredged 
materials.
    Two commenters raised concerns regarding impacts to endangered 
species and critical habitat including whales. Although located within 
the North Atlantic right whale critical habitat, disposal vessel speed 
and operation will be restricted as necessary in order to protect North 
Atlantic right whales as set forth in: (1) The Site Management and 
Monitoring Plan (SMMP) for the expanded ODMDS developed by the EPA in 
coordination with the USACE; and (2) an Endangered Species Act (ESA) 
Biological Assessment completed by the EPA. In a letter to the EPA from 
the National Marine Fisheries Service (NMFS) dated August 3, 2015, NMFS 
concluded that because all potential project effects to listed species 
and critical habitat were found to be discountable, insignificant, or 
beneficial, that the ODMDS expansion is not likely to adversely affect 
listed species under NMFS purview including the North Atlantic right 
whale. Additional discussion of compliance with the ESA is provided in 
section III.d of this final rule labeled ``ESA.'' The SMMP, the ESA 
Biological Assessment and the letter from NMFS dated August 3, 2015, 
are included in the Docket for this action.
    Finally, two commenters raised concerns about the overall impacts 
of disposal of sediments on the ecosystem, fisheries and reefs and that 
additional measures should be instituted to reduce the amount of waste 
that needs to be disposed in the ocean. The location of the expanded 
ODMDS was selected to minimize impacts to the shrimp fishery in the 
area and to minimize impacts to hard bottom communities in the vicinity 
of the ODMDS. In response to these commenters, the EPA reviewed the 
SMMP for the expanded ODMDS to ensure that controls are in place both 
to prevent negative effects and to correct impacts from negative 
effects in the unlikely event such effects occurred. The final SMMP, 
found in the Docket for this action, includes safeguards to act to 
prevent negative effects, primarily through ensuring that only material 
meeting ocean dumping criteria for ocean disposal are allowed to be 
disposed at the expanded ODMDS. The EPA can respond to negative 
impacts, including, for example, having ODMDS users adjust disposal 
amounts, techniques, and timing, and the EPA can shut down the ODMDS on 
a short term or long term basis if needed, if negative effects are 
observed or if trends suggest negative impacts could occur. The EPA has 
authority to condition, terminate, or restrict ODMDS use with cause. 
Regarding the amount of dredged material needed to be disposed in the 
ocean, the USACE, rather than the EPA determines the location and 
amount of dredging necessary to maintain the waterways of the U.S. The 
EPA determines, with the USACE's input, how best to dispose of material 
that must be disposed of in the ocean. Part of that analysis includes a 
balancing community and ocean user needs. The EPA finds this ODMDS 
expansion to be the best balance of those needs at this time. The EPA 
will continue to evaluate these local community concerns and will use 
the SMMP to make adjustments as needed to the extent practicable, to 
help ensure the needs of the users are balanced against the concerns of 
the local community.

[[Page 61760]]

d. Management and Monitoring of the ODMDS

    The expanded ODMDS is expected to receive sediments dredged by the 
USACE to deepen and maintain the federally authorized navigation 
project at Jacksonville Harbor, Florida, maintain Naval Station Mayport 
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 expanded 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 expanded ODMDS. The SMMP, which was available 
for public comment as a draft document, has been finalized and the 
final document may be found in the Docket.

e. MPRSA Criteria

    In proposing to expand the ODMDS, the EPA assessed the proposed 
expanded 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 Impact Statement for 
Designation of an Ocean Dredged Material Disposal Site Offshore 
Jacksonville, Florida, [October 2014] (FEIS), provides an extensive 
evaluation of the criteria and other related factors for the expansion 
of the ODMDS. The FEIS may be found in the Docket.
General Criteria (40 CFR 228.5)
    (1) Sites must be selected to minimize interference with other 
activities in the marine environment, particularly avoiding areas of 
existing fisheries or shellfisheries, and regions of heavy commercial 
or recreational navigation (40 CFR 228.5(a)).
    Historical disposal of dredged material at the existing 
Jacksonville ODMDS has not interfered with commercial or recreational 
navigation, commercial fishing, or sportfishing activities. Expansion 
of this ODMDS is not expected to change these conditions. The expanded 
ODMDS avoids any identified major fisheries, natural and artificial 
reefs, and areas of recreational use. The expanded ODMDS is 
approximately 1 nmi east of the areas identified by commercial 
shrimpers as important shrimp trawling areas. The expanded ODMDS 
minimizes interference with shellfisheries by avoiding areas frequently 
used by commercial shrimpers. The expanded ODMDS is not expected to 
adversely affect recreational boating and is located outside of 
designated shipping/navigation channels and anchorage areas. The draft 
SMMP outlines ODMDS management objectives, including minimizing 
interference with other uses of the ocean. Should an ODMDS use conflict 
be identified, ODMDS use could be modified according to the SMMP to 
minimize that conflict.
    (2) Sites must be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or undetectable contaminant concentrations or effects before reaching 
any beach, shoreline, marine sanctuary, or known geographically limited 
fishery or shellfishery (40 CFR 228.5(b)).
    Based on the EPA's review of modeling, monitoring data, sediment 
quality, and history of use, no detectable contaminant concentrations 
or water quality effects, e.g., suspended solids, would be expected to 
reach any beach or shoreline from disposal activities at the expanded 
ODMDS. The expanded ODMDS is removed far enough from shore (4.4 nmi) 
and fishery resources to allow water quality perturbations caused by 
dispersion of disposed material to be reduced to ambient conditions 
before reaching any environmentally sensitive areas. Dilution rates are 
expected to range from 140:1 to 2800:1 after four hours. The primary 
impact of disposal activities on water quality is expected to be 
temporary turbidity caused by the physical movement of sediment through 
the water column. All dredged material proposed for disposal will be 
evaluated according to the ocean dumping regulations at 40 CFR 227.13 
and guidance developed by the EPA and the USACE.
    (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 expanded ODMDS allows 
and facilitates long-term capacity, site management, and site 
monitoring while limiting environmental impacts to the surrounding area 
to the extent possible. Based on projected future new work and 
maintenance dredged material disposal needs, is the USACE estimated 
that the new ODMDS should be approximately 4 nmi\2\ in size to meet the 
long-term (>50 years) disposal needs of the area. An ODMDS of this size 
should have a capacity of greater than 65 million cubic yards. The 
expanded ODMDS is 4.56 nmi\2\ in size inclusive of the existing 
Jacksonville ODMDS and therefore meets the long-term disposal needs of 
the area.
    A site management and monitoring program will be implemented to 
determine if disposal at the ODMDS 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, an assessment of the health of the benthic 
community, and an assessment of any movement of disposed dredged 
material offsite. The size of the expanded ODMDS is similar to that of 
other ocean dredged material disposal sites in the Southeastern United 
States. Monitoring of sites of this size have proved to be effective 
and feasible.
    (4) EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites where 
historical disposal has occurred (40 CFR 228.5(e)).
    Disposal areas located off of the continental shelf would be at 
least 60 to 70 nautical miles offshore. This distance is well beyond 
the 5 to 10 nautical mile haul distance determined to be feasible by 
the USACE for maintenance of their Jacksonville Harbor project. 
Additional disadvantages to off-shelf ocean disposal would be the 
unknown environmental impacts of disposal on deep-sea, stable, fine-
grained benthic communities and the higher cost of monitoring sites in 
deeper waters and further offshore.
    Historic disposal has occurred at the location for the expanded 
ODMDS. The substrate of the expanded ODMDS is similar grain size to the 
disposal material.
Specific Criteria (40 CFR 228.6)
    (1) Geographical Position, Depth of Water, Bottom Topography and

[[Page 61761]]

Distance from Coast (40 CFR 228.6(a)(1)).
    The EPA does not anticipate that the geographical position of the 
expanded ODMDS, including the depth, bottom topography and distance 
from the coastline, will unreasonably degrade the marine environment. 
The expanded ODMDS is located on the shallow continental shelf off 
northeast Florida and is 7.1 nautical miles southeast of the mouth of 
the St. Johns River. Depths within the expansion area of the ODMDS 
range from 43 to 66 feet (13 to 20 meters) with an average depth of 57 
feet (17 meters). To help avoid adverse mounding at the expanded ODMDS, 
bathymetry will be routinely monitored following disposal activities 
and disposal locations modified as necessary. In this way, mounding 
that could create a navigation hazard will be avoided. Material 
disposed in the expanded ODMDS is not expected to move from the 
expanded ODMDS except during large storm events.
    (2) Location in Relation to Breeding, Spawning, Nursery, Feeding, 
or Passage Areas of Living Resources in Adult or Juvenile Phases (40 
CFR 228.6(a)(2)).
    The expanded ODMDS is located within the North Atlantic right whale 
critical habitat. The coastal waters off Georgia and northern Florida 
are the only known calving ground for the North Atlantic right whale 
between November and April. The expansion of the ODMDS is not expected 
to alter the critical habitat. Disposed dredged material will settle 
out of the water column to the benthos, which is not considered part of 
the critical habitat. Disturbances from ships transiting through the 
area would not be significantly different from normal vessel operations 
that occur daily in the project area, although during dredging 
activities there would be an increase in vessel activity in the areas 
between the river entrance and the expanded ODMDS which may lead to an 
increase risk of animal collisions. Observance of critical habitat 
designations and the North Atlantic right whale Early Warning System 
should mitigate for this potential increase.
    The expanded ODMDS is not located in exclusive breeding, spawning, 
nursery, feeding or passage areas for adult or juvenile phases of 
living resources. The most active fish breeding and nursery areas are 
located in inshore estuarine waters, along adjacent beaches, or in 
nearshore reef areas. At and in the immediate vicinity of the expanded 
ODMDS, spawning and migrating adult penaeid shrimp may be present. 
However, as much of the dredged material will consist of silts and 
clays, it appears likely that the area will remain suitable for penaeid 
shrimp.
    (3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3)).
    The ODMDS is approximately 4.4 nmi from coastal beaches and 
protected inshore waters. Shore-related amenities include Nassau River-
St. Johns River Marshes Aquatic Preserve, Little Talbot Island State 
Park, Kingsley Plantation Historic Monument, and Fort Caroline National 
Memorial. These amenity areas are outside the area to be affected by 
disposal in the expanded ODMDS. The ODMDS is approximately 4 to 5 nmi 
west of the nearest artificial reef or fishing hotspots.
    (4) Types and Quantities of Wastes Proposed to be Disposed of, and 
Proposed Methods of Release, including Methods of Packing the Waste, if 
any (40 CFR 228.6(a)(4)).
    Dredged material found suitable for ocean disposal pursuant to the 
regulatory criteria for dredged material, or characterized by chemical 
and biological testing and found suitable for disposal into ocean 
waters, will be the only material allowed to be disposed at the 
expanded ODMDS. No material defined as ``waste'' under the MPRSA will 
be allowed to be disposed at the ODMDS. The dredged material to be 
disposed at the expanded ODMDS will be a mixture of rock, sands, silts 
and clays. Annual average quantities are expected to range 0.5 to 1.1 
million cubic yards. 18 million cubic yards is expected to be disposed 
from the Jacksonville Harbor Deepening Project. Generally, disposal is 
expected to occur from a hopper dredge or disposal scow, in which case, 
material will be released just below the surface while the disposal 
vessel remains underway and slowly transits the disposal location.
    (5) Feasibility of Surveillance and Monitoring (40 CFR 
228.6(a)(5)).
    The EPA expects monitoring and surveillance at the expanded ODMDS 
to be feasible and readily performed from ocean or regional class 
research vessels. The expanded ODMDS is of similar size, water depth 
and distance from shore of a majority of the ODMDSs within the 
Southeastern United States which are routinely monitored. The EPA will 
ensure monitoring of the ODMDS for physical, biological and chemical 
attributes as well as for potential impacts beyond the ODMDS 
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)).
    Waves are predominately out of the east and a few exceed 2 meters 
(6.6 feet) in height or 15 seconds (s) in period. Waves are the primary 
factor influencing re-suspension of disposed dredged material, and 
currents probably affect the direction and magnitude of transport. 
Currents flow predominately in a north-northwest and south-southeast 
direction and rarely exceeds 30 cm/s in magnitude. Modeling and 
monitoring conducted at the existing ODMDS has shown that the net 
direction of transport is to the south. Dilution rates due to mixing 
are expected to range from 140:1 to 2800:1 after four hours.
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects) (40 CFR 
228.6(a)(7)).
    The areas within the vicinity of the Jacksonville ODMDS have been 
in use since 1952 for disposal of dredged material (e.g., sand, silt, 
clay, gravel, shell, and some rock) from the Jacksonville Harbor 
Navigation Project and the Naval Station Mayport entrance channel and 
turning basin. The Jacksonville ODMDS received interim site designation 
status in 1977 and final designation in 1983. Prior to 1970 and in the 
early 1970s, material was disposed in an area 0.5 nmi east of the 
Jacksonville ODMDS. In the late 1970s material was unintentionally 
disposed south of the ODMDS. Water column chemistry in past studies at 
the ODMDS has typically shown little or no impact due to dredged 
material disposal. Sediment analysis in the late 1970s showed higher 
concentrations of certain heavy metals (nickel, copper, zinc, lead, and 
chromium), Kjeldahl nitrogen, and organic carbon in sediments within 
the ODMDS versus outside the ODMDS. Sediment analysis as part of a 1995 
benthic survey showed that, in general, metal concentrations within the 
ODMDS remained elevated compared to concentrations outside the ODMDS. 
However, concentrations within the ODMDS have decreased since 1978 and, 
based on a 1998 study, continue to decrease. The average percentage of 
silts and clays at stations within the ODMDS exceeds that of stations 
outside the ODMDS, but has decreased both inside and outside the ODMDS 
since. A 2009 study documented tri-n-butyltin, di-n-butyltin, and n-
butyltin present at sampling stations both inside and

[[Page 61762]]

outside the Jacksonville ODMDS. Benthic infaunal community studies at 
the existing Jacksonville ODMDS have showed that communities remain 
diverse with no significant changes. The normal equilibrium benthic 
community in the area consists of surface-dwelling suspension feeders 
that are pre-adapted to energetic sandy environments.
    (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 expanded 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 expanded ODMDS. The expanded ODMDS avoids the National 
Oceanographic and Atmospheric Administration (NOAA) recommended vessel 
routes offshore Jacksonville, Florida, thereby avoiding conflict with 
commercial navigation.
    Commercial fishing (shrimp trawling) occurs primarily to the west 
of the expanded ODMDS. The northern portion of the expanded ODMDS 
encompasses areas with rubble and other debris that commercial shrimp 
trawlers avoid due to potential damage to their shrimp nets. The 
southern portion of the expanded ODMDS includes areas used for 
commercial shrimp trawling. The expanded ODMDS will be managed such 
that rock will be disposed in the eastern portion of the expanded ODMDS 
outside of the fishing area and finer grained material (silts/clays) 
will be disposed in the western portion. Additionally, the southern 
portion will only be used if the northern portion has reached capacity.
    Potential sand borrow areas have been identified to the east of the 
expanded ODMDS. The expanded ODMDS will be managed to avoid impacts to 
these areas. Only rock and sand will be disposed in the eastern 
portions of the expanded ODMDS providing a buffer between the disposal 
of silts and clays and the potential borrow areas. The nearest 
potential borrow area is adjacent to the southern half of the expanded 
ODMDS. This borrow area is expected to be exhausted prior to use of the 
southern portion of the expanded ODMDS as the southern portion will 
only be used if the northern portion has reached capacity.
    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 expanded 
ODMDS at this time. The expanded 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)).
    Spring and fall season baseline surveys were conducted in 2010 at 
the expanded ODMDS. Water quality was determined to be good with no 
evidence of degradation. No hypoxia conditions were observed and all 
chemical constituents were below EPA national recommended water quality 
criteria for salt water. Annelid worms, arthropods, echinoderms, 
gastropods, and bivalves are common benthic taxonomic groups. The 
Atlantic croaker, spotted hake, searobins, drums, and sand flounders 
are common fish species. Important mollusks include transverse and 
ponderous arks, mussels, and Atlantic calico scallops.
    (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 expanded ODMDS. Material expected to be disposed at 
the expanded ODMDS will be rock, sand, silt and clay similar to the 
sediment present at the expanded ODMDS. Finer-grained material could 
have the potential to attract different species to the expanded ODMDS 
then currently exist as was documented following disposal of 
significant amounts of silts and clays from deepening of Naval Station 
Mayport. However, it is expected that over time, as current and wave 
energy transports the finer-grained sediments away, the normal 
equilibrium benthic community will re-establish itself. The SMMP 
includes benthic infaunal monitoring requirements, which will act to 
identify any nuisance species and allow the EPA to direct special 
studies and/or operational changes to address the issue if it arises.
    (11) Existence at or in Close Proximity to the Site of any 
Significant Natural or Cultural Feature of Historical Importance (40 
CFR 228.6(a)(11)).
    No significant cultural features have been identified at, or in the 
vicinity of, the expanded ODMDS at this time. Archaeological surveys of 
the expanded ODMDS were conducted in 2011 and 2012. The survey 
identified three sub-bottom features and one magnetic cluster. 
Archaeological divers investigated these targets and determined that 
they did not represent significant cultural features of historical or 
prehistorical importance. The EPA has coordinated with Florida's State 
Historic Preservation Officer (SHPO) to identify any cultural features. 
The SHPO concurred with the EPA's determination that the expansion of 
the ODMDS will have no effect on cultural resources listed, or eligible 
for listing on the National Register of Historic Places. No shipwrecks 
have been observed or documented within the expanded ODMDS or its 
immediate vicinity.

f. Technical Amendment

    The EPA corrected a clerical error that was included in the 
proposed language in 40 CFR 228.15(h)(9)(vi). As indicated in the 
preamble to the proposed rule, only dredged material from the 
Jacksonville, Florida area may be disposed in the ODMDS. This 
restriction was the only restriction specifically stated in the 
regulation prior to this rulemaking. The language in the proposed rule 
added three new restrictions to 40 CFR 228.15(h)(9)(vi) but due to a 
clerical error did not include the existing restriction. The final rule 
language reflects all four restrictions for disposal of dredged 
material into the ODMDS.

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

[[Page 61763]]

environmental review documents. The EPA's primary voluntary NEPA 
document for expanding the ODMDS is the Final Environmental Impact 
Statement for Designation of an Ocean Dredged Material Disposal Site 
Offshore Jacksonville, Florida, [October 2014] (FEIS), prepared by the 
EPA in cooperation with the USACE. On October 17, 2014, the Notice of 
Availability (NOA) of the FEIS for public review and comment was 
published in the Federal Register (79 FR 62436 [October 17, 2014]). 
Anyone desiring a copy of the FEIS may obtain one from the addresses 
given above. The public comment period on the FEIS closed on November 
17, 2014. The FEIS and its Appendices, which are part of the Docket for 
this action, provide the threshold environmental review for expansion 
of the ODMDS. The information from the FEIS is used above, in the 
discussion of the ocean dumping criteria.

b. MSA

    The EPA prepared an essential fish habitat (EFH) assessment 
pursuant to Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-
Stevens Act, as amended (MSA), 16 U.S.C. 1801 to 1891d, and submitted 
that assessment to the National Marine Fisheries Service (NMFS) on May 
11, 2012. The NMFS provided EFH Conservation Recommendations and a 
request for additional information on July 11, 2012. The EPA prepared 
an interim response with the requested additional information on August 
2, 2012 and a revised EFH Assessment for the preferred alternative on 
October 6, 2014. In a letter dated January 5, 2015, NMFS determined 
that the EPA and the USACE have provided the substantive justification 
required by 50 CFR 600.920(k) for not following EFH conservation 
recommendations.

c. CZMA

    Pursuant to an Office of Water policy memorandum dated October 23, 
1989, the EPA has evaluated the site designations for consistency with 
the State of Florida's (the State) approved coastal management program. 
The EPA has determined that the designation of the ODMDS 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 concurred with this 
determination on November 17, 2014. In addition, as part of the NEPA 
process, the EPA has consulted with the State regarding the effects of 
the dumping at the ODMDS on the State's coastal zone. The EPA has taken 
the State's comments into account in preparing the FEIS for the ODMDS, 
in determining whether the ODMDS should be designated, and in 
determining whether restrictions or limitations should be placed on the 
use of the ODMDS, if they are designated. The EPA modified Alternative 
1 to address the State's concern regarding potential impacts to hard 
bottom benthic habitat and has incorporated management and monitoring 
requirements into the SMMP to ensure that disposed dredged materials do 
not negatively affect important benthic resources and sand borrow areas 
located outside of the designated ODMDS boundaries. Furthermore, at the 
request of the State, the EPA has conducted an evaluation of recently 
designated critical habitat for the loggerhead sea turtle.

d. 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 prepared a Biological Assessment (BA) 
to assess the potential effects of expanding the Jacksonville ODMDS on 
aquatic and wildlife species and submitted that BA to the NMFS and 
USFWS on October 6, 2014. A supplement to the BA addressing loggerhead 
critical habitat was submitted on January 15, 2015. The EPA concluded 
that its action may affect, but is not likely to adversely affect 10 
ESA-listed species and is not likely to adversely affect designated 
critical habitat for the North Atlantic right whale or the loggerhead 
sea turtle. The USFWS concurred on the EPA's finding that the action is 
not likely to adversely affect listed endangered or threatened species 
under the jurisdiction of the USFWS.
    The informal consultation process with NMFS was concluded on August 
3, 2015. NMFS concluded that dredged disposal activities at the 
Jacksonville ODMDS are not likely to adversely affect sea turtles, 
sturgeon, or whales. The Jacksonville ODMDS is located within Unit 2 of 
the proposed modifications to the designated critical habitat for the 
North Atlantic right whale. North Atlantic right whales are observed 
calving off the southeastern U.S. coast, in an area designated as Unit 
2 of the proposed critical habitat. The essential features of right 
whale calving habitat are calm sea surface conditions, sea surface 
temperature, and depth. The NMFS concluded that neither the dredging, 
related vessel operations, nor the disposal of dredged material will 
significantly impact water depth, sea surface conditions, or the 
temperature of the ocean. While the ODMDS will decrease water depths, 
the elevated sea bottom will not impede whales in any way. Water depths 
will still be sufficient for the animals to move freely throughout the 
habitat. Furthermore, the likelihood of interaction which may impact 
the distribution of right whale calf/cow pairs is further reduced by 
the precautions stipulated for vessel avoidance. These precautions are 
required as part of the SMMP and restrict disposal vessel speed and 
operation in accordance with the most recent USACE South Atlantic 
Division Endangered Species Act Section 7 Consultation Regional 
Biological Opinion for Dredging of Channels and Borrow Areas in the 
Southeastern United States (SARBO), or other relevant Biological 
Opinion for specific projects not included in the SARBO to capture 
requirements for projects not covered by the SARBO. Because all 
potential project effects to listed species and critical habitat were 
found to be discountable, insignificant, or beneficial, NMFS concluded 
that the action is not likely to adversely affect listed species under 
their purview.

e. NHPA

    The USACE and the EPA initiated consultation with the State of 
Florida's Historic Preservation Officer (SHPO) on November 24, 2010, 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). A submerged cultural 
resource survey of the area including the use of magnetometer, side 
scan sonar, and sub-bottom profiler was conducted in 2011. A follow-up 
archaeological diver investigation was conducted in 2012. No historic 
properties were found within the expanded ODMDS boundaries and SHPO 
concurred with the determination that designated the expanded ODMDS 
would have no effect on cultural resource listed, or eligible for 
listing on the NRHP.

[[Page 61764]]

IV. Statutory and Executive Order Reviews

    This rule proposes the designation of an expanded ODMDS pursuant to 
Section 102 of the MPRSA. 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. 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 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 action will not 
have a significant economic impact on small entities because the 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 rule, I certify that this action will not 
have a significant economic impact on a substantial number of small 
entities.

d. Unfunded Mandates Reform Act

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

e. Executive Order 13132: Federalism

    This action does not have federalism implications. It does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among various levels of government, as specified 
in Executive Order 13132. Thus, Executive Order 13132 does not apply to 
this action. In the spirit of Executive Order 13132, and consistent 
with 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.

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

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

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern health or safety risks, such that the 
analysis required under Section 5-501 of the Executive Order has the 
potential to influence the regulation. This action is not subject to 
Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks. The action 
concerns the expansion of the Jacksonville 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.

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

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

i. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272), 
directs the EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus bodies. The NTTAA directs the EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This action 
includes environmental monitoring and measurement as described in EPA's 
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 SMMP.

[[Page 61765]]

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

    Executive Order 12898 (59 FR 7629) establishes federal executive 
policy on environmental justice. Its main provision directs federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States. The EPA determined that this rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The EPA has assessed the overall protectiveness of 
expanding the Jacksonville 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 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: September 28, 2015.
Heather McTeer Toney,
Regional Administrator, Region 4.

    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 paragraphs (h)(9)(i) through 
(iii) and (vi) to read as follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (9) * * *
    (i) Location: 30[deg] 21.514' N., 81[deg] 18.555' W.; 30[deg] 
21.514' N, 81[deg] 17.422' W.; 30[deg] 20.515' N., 81[deg] 17.422' W.; 
30[deg] 20.515' N, 81[deg] 17.012' W.; 30[deg] 17.829' N., 81[deg] 
17.012' W.; 30[deg] 17.829' N, 81[deg] 18.555' W.
    (ii) Size: Approximately 3.68 nautical miles long and 1.34 nautical 
miles wide (4.56 square nautical miles); 3,861 acres (1,562 hectares).
    (iii) Depth: Ranges from approximately 28 to 61 feet (9 to 19 
meters).
* * * * *
    (vi) Restrictions: (A) Disposal shall be limited to dredged 
material from the Jacksonville, Florida, 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. 2015-26142 Filed 10-13-15; 8:45 am]
 BILLING CODE 6560-50-P


