[Federal Register Volume 85, Number 50 (Friday, March 13, 2020)]
[Proposed Rules]
[Pages 14622-14628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04650]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R04-OW-2020-0056; FRL-10006-07-Region 4]


Ocean Dumping: Modification of an Ocean Dredged Material Disposal 
Site Offshore of Port Everglades, Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a modification of the existing EPA designated ocean dredged 
material disposal site (ODMDS) offshore of Port Everglades, Florida 
(referred to hereafter as the existing Port Everglades ODMDS) pursuant 
to 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 a location to dispose of 
suitable material dredged from the Port Everglades Harbor and for the 
disposal of suitable dredged material for persons who receive a MPRSA 
permit for such disposal. The modified site will be subject to 
monitoring and management to ensure continued protection of the marine 
environment.

[[Page 14623]]


DATES: Written comments must be received on or before April 13, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OW-2020-0056, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments and accessing the docket and materials related to 
this proposed rule.
     Email: OceanDumpingR4@epa.gov.
     Mail: Wade Lehmann, U.S. Environmental Protection Agency, 
Region 4, Water Division, Oceans and Estuarine Management Section, 61 
Forsyth Street SW, Atlanta, Georgia 30303.
    Instructions: Direct your comments to Docket ID No. EPA-R04-OW-
2020-0056. The EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through 
www.regulations.gov or email, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov website is an 
``anonymous access'' system, which means the EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an email comment directly to the EPA without 
going through www.regulations.gov, your email address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the internet. If you 
submit an electronic comment, the EPA recommends that you include your 
name and other contact information in the body of your comment and with 
any disk or CD-ROM you submit. If the EPA cannot read your comment due 
to technical difficulties and cannot contact you for clarification, the 
EPA may not be able to consider your comment. Electronic files should 
avoid the use of special characters, any form of encryption, and be 
free of any defects or viruses. For additional information about the 
EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: Publicly available docket materials are available either 
electronically at www.regulations.gov or in hard copy during normal 
business hours from the regional library at the EPA, Region 4 Library, 
9th Floor, 61 Forsyth Street SW, Atlanta, Georgia 30303. For access to 
the documents at the Region 4 Library, contact the Region 4 Library 
Reference Desk at (404) 562-8190, between the hours of 9:00 a.m. to 
12:00 p.m., and between the hours of 1:00 p.m. to 4:00 p.m., Monday 
through Friday, excluding Federal holidays, for an appointment.

FOR FURTHER INFORMATION CONTACT: Wade Lehmann, U.S. Environmental 
Protection Agency, Region 4, Water Division, Oceans and Estuarine 
Management Section, 61 Forsyth Street SW, Atlanta, Georgia 30303; phone 
number (404) 562-8082; email: Lehmann.Wade@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 MPRSA, 33 U.S.C. 1401 to 1445. The EPA's 
proposed action would be relevant to persons, including organizations 
and government bodies seeking to dispose of dredged material in ocean 
waters offshore of Port Everglades, 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
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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 
proposed action. For any questions regarding the applicability of this 
proposed 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 Disposal Sites Offshore of Port Everglades, Florida

    There is currently one designated ODMDS off the coast of Port 
Everglades, Florida. The existing Port Everglades ODMDS is located 
three nautical miles offshore of Fort Lauderdale. It is currently 1.43 
square nautical miles (nmi\2\) in size. The Port Everglades ODMDS 
received final designation in 2005.
    The USACE Port Everglades District and the EPA Region 4 have 
identified a need to either designate a new ODMDS or modify the 
existing Port Everglades ODMDS. The need for modifying current ocean 
disposal capacity is based on future capacity requirements, historical 
dredging volumes, estimates of dredging volumes for future proposed 
projects, and limited capacity of upland confined disposal facilities 
(CDFs) in the area.
    The EPA is proposing to modify, by expansion, the existing Port 
Everglades ODMDS rather than designate a new site off the coast of Port 
Everglades for ocean disposal of dredged material. The proposed 
modification of the existing Port Everglades ODMDS for dredged material 
does not mean that the USACE or the EPA has approved the use of the 
existing Port Everglades ODMDS or a modified Port Everglades ODMDS for 
open water disposal of dredged material from any specific project. 
Before any person can ocean dump dredged material at the existing Port 
Everglades ODMDS or a modified Port Everglades ODMDS, 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, the USACE is the federal 
agency that decides whether to issue a permit authorizing the ocean 
disposal of dredged materials. In the case of federal navigation 
projects, the USACE may implement the MPRSA directly in the USACE 
projects involving ocean disposal of dredged materials. 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 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

[[Page 14624]]

EPA may concur with or without conditions or decline to concur (i.e., 
non-concur) on the permit. If the EPA concurs with conditions, the 
final permit or authorization must include those conditions. If EPA the 
declines to concur, the USACE cannot issue the permit for ocean dumping 
of dredged material or authorize the disposal. This action is supported 
by a Draft Environmental Assessment (DEA), which was provided for 
public notice and comment in February 2020 and is accessible at: 
https://www.epa.gov/aboutepa/about-epa-region-4-southeast#r4-public-notices.

b. Location and Configuration of the Proposed Modified Port Everglades 
ODMDS

    This action proposes the modification of the existing Port 
Everglades ODMDS. The proposed modified ODMDS is in -587 to -761 feet 
of water (-179 to -232 meters). The proposed modified ODMDS would 
expand the existing Port Everglades ODMDS from a size of approximately 
1.34 nmi\2\ to 3.21 nmi\2\ in size. The location of the proposed 
modified ODMDS is bounded by the coordinates listed below. The proposed 
coordinates for the site are in North American Datum 83 (NAD 83):
Proposed Modified Port Everglades ODMDS
(A) 26[deg]08.750' N, 80[deg]01.000' W
(B) 26[deg]08.750' N, 80[deg]02.578' W
(C) 26[deg]06.500' N, 80[deg]02.578' W
(D) 26[deg]06.500' N, 80[deg]01.000' W
    The proposed modification of the existing ODMDS will allow the EPA 
to adaptively manage the site to maximize its capacity, minimize the 
potential for 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 proposed modified ODMDS is expected to receive dredged material 
from the Federal navigation project at Port Everglades Harbor, Florida, 
and dredged material from other applicants who obtain a permit for the 
disposal of dredged material at the proposed modified ODMDS. All 
persons using the site will be required to follow the Site Management 
and Monitoring Plan (SMMP) for the ODMDS that is specifically developed 
for the proposed modified ODMDS. A draft SMMP for the proposed modified 
ODMDS was noticed for public review in January 2020 along with the DEA 
and is accessible at: https://www.epa.gov/aboutepa/about-epa-region-4-southeast#r4-public-notices. The SMMP will be finalized by the EPA 
Region 4 and the USACE Jacksonville District following the 
consideration of comments received. The SMMP includes management and 
monitoring requirements to ensure that dredged materials disposed at 
the proposed modified ODMDS are suitable for disposal in the ocean and 
that adverse impacts of disposal, if any, are addressed to the maximum 
extent practicable. This includes provisions to avoid and minimize 
potential impacts to coral reefs present near Port Everglades. The SMMP 
for the proposed modified ODMDS also addresses management of the site 
to ensure adverse mounding and dispersal of fine sediments does not 
occur and ensures that disposal events minimize interference with other 
uses of ocean waters near the proposed modified ODMDS.

d. MPRSA Criteria

    In evaluating the proposed modified ODMDS, 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 proposed site designation satisfies those 
criteria. The EPA's DEA provides an extensive evaluation of the 
criteria and other related factors for the modification of the existing 
ODMDS.
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)).
    Historically, an interim site located approximately 1.6 nautical 
miles from shore was used for ocean disposal of dredged material from 
Port Everglades Harbor but was discontinued in the 1980s due to 
potential impacts of sediments on nearby coral reef resources. The 
existing Port Everglades Harbor ODMDS was designated in 2005 under 
Section 103 of the MPRSA, as there was no nearby EPA-designated ODMDS. 
The evaluation for the 2005 designation included considerations of 
potential interference with other activities in the marine environment 
including avoiding areas of existing critical fisheries or 
shellfisheries, and regions of heavy commercial or recreational 
navigation. These evaluations were reconsidered from 2010 through to 
the present time as the proposed modified ODMDS continued to be 
assessed.
    (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 proposed ODMDS modification area will be used for disposal of 
suitable dredged material as determined by Section 103 of the MPRSA. 
Based on the USACE and EPA sediment testing and evaluation procedures, 
disposal of dredged maintenance material and proposed new work material 
is not expected to have any long-term impact on water quality. The 
existing Port Everglades ODMDS and proposed modified ODMDS 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 proposed modified 
ODMDS provides long-term capacity, while also permitting effective site 
management, site monitoring, and limiting environmental impacts to the 
surrounding area to the greatest extent practicable.
    Based on projected new work and maintenance dredging, and permitted 
dredged material disposal needs, it is estimated that the proposed 
modified ODMDS should be approximately 3.21 nmi\2\ in size to meet the 
anticipated long-term disposal needs of the area. This would provide 
the proposed modified ODMDS with an estimated capacity of approximately 
6.7 million cubic yards, which is sufficient to manage risk, account 
for future unknown disposal operations from private entities, and 
provide a margin of navigation safety.
    By adding approximately 2.2 nmi\2\ to the existing Port Everglades 
ODMDS, the total area of the proposed modified Port Everglades ODMDS 
would be 3.21 nmi\2\. An ODMDS of this size and capacity will provide a 
long-term ocean disposal option for the greater Port Everglades area.

[[Page 14625]]

    When determining the size of the proposed 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. An SMMP is being developed and will be implemented to 
determine if disposal at the site is significantly affecting adjacent 
areas and to detect the presence of adverse effects. At a minimum, the 
monitoring program will consist of bathymetric surveys, sediment grain 
size analysis, chemical analysis of constituents of concern in the 
sediments, and an assessment of the constitution of the benthic 
community.
    (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 existing Port Everglades ODMDS and proposed expansion of the 
ODMDS are beyond the edge of the continental shelf.
Specific Criteria (40 CFR 228.6)
(1) Geographical Position, Depth of Water, Bottom Topography and 
Distance From Coast (40 CFR 228.6(a)(1))
    The proposed modified ODMDS is on the Florida Continental Slope, 
four nautical miles offshore of Fort Lauderdale, Florida. Water depths 
range from -179 to -232 meters (-587 to -761 feet), with an average 
depth of 207 meters (-678 feet). Sediments consist of sand with various 
mixtures of sand and silts with scattered rubble hardbottom. The DEA 
contains a map of the proposed ODMDS modification. The expansion 
retains the ODMDS off the continental shelf in a range that is not 
expected to allow sediments to travel to nearby shore-associated coral 
reef habitat.
(2) Location in Relation to Breeding, Spawning, Nursery, Feeding, or 
Passage Areas of Living Resources in Adult or Juvenile Phases (40 CFR 
228.6(a)(2))
    The proposed modified ODMDS has been selected to avoid the presence 
of any exclusive breeding, spawning, nursery, feeding, or passage areas 
for adult or juvenile phases of living resources.
(3) Location in Relation to Beaches and Other Amenity Areas (40 CFR 
228.6(a)(3))
    The center of the proposed modified ODMDS is several miles from any 
beaches or amenity areas. No significant impacts to beaches or amenity 
areas associated with the existing Port Everglades ODMDS have been 
detected. The U.S. Navy has facilities south of the ODMDS and were 
consulted to verify that no impediments will exist with the expanded 
ODMDS.
(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 will be disposed in the proposed 
modified ODMDS. Dredged materials dumped in this area will be primarily 
sand and rock with some fines that originate from the Port Everglades 
Harbor. Average yearly disposal of dredged maintenance material into 
the proposed modified ODMDS is expected to be approximately 30,000 
cubic yards and variable volumes of new work dredged material up to 6.7 
million cubic yards. None of the material is packaged in any manner.
    Under section 103 of the MPRSA, the USACE is the federal agency 
that decides whether to issue a permit authorizing the ocean disposal 
of dredged materials. In the case of federal navigation projects 
involving ocean disposal of dredged materials, the USACE is subject to 
MPRSA, but does not require a USACE permit. 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 projects involving ocean dumping of dredged material are 
subject to the EPA's review and concurrence. The EPA may concur, with 
or without conditions, or decline to concur on the permit, i.e. non-
concur. If the EPA concurs with conditions, the final permit must 
include those conditions. If the EPA declines to concur (non-concurs) 
on an ocean dumping permit for dredged material, the USACE cannot issue 
the permit.
(5) Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))
    The EPA expects monitoring and surveillance at the proposed 
modified ODMDS to be feasible and readily performed from ocean or 
regional class research vessels. The area of the proposed modified 
ODMDS has been surveyed and sampled in 2004, 2007 and 2014. The EPA 
will monitor the site for physical, biological and chemical attributes 
as well as for potential impacts. Bathymetric surveys will be conducted 
routinely, and benthic infauna and epibenthic organisms will be 
monitored, as described in the SMMP for the 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))
    Current velocities vary throughout the water column and are subject 
to wind and the Florida Current based circulations which is generally 
northerly with eddies occuring that drive currents south. Currents 
measured at nearby sites are predominantly to the north or south on the 
order of 1-4 knots (50-200 centimeters per second).
(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 in the existing Port 
Everglades ODMDS has resulted in temporary increases in suspended 
sediment concentrations during disposal operations, burial of benthic 
organisms within the site, and slight changes in the abundance and 
composition of benthic assemblages. Short-term, long-term, and 
cumulative effects of dredged material disposal in the proposed 
modified ODMDS would be similar to those for the existing Port 
Everglades ODMDS, which are expected to be temporary and return to 
baseline over time.
(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))
    There will be minor, short-term interferences with commercial and 
recreational boat traffic during the transport of dredged material to 
the proposed modified ODMDS. The site has not been identified as an 
area of special scientific importance. There are no aquaculture areas 
near the site. There may be recreational fishing in the area. The 
likelihood of direct interference with these activities is low, 
provided there is close communication and coordination among users of 
the ocean resources. The U.S. Navy, Fort Lauderdale Branch, Naval 
Surface Warfare Center range is located south of the existing and 
proposed expanded ODMDS. There will be no impact to either U.S. Navy 
operations due to the expansion of the ODMDS. The SMMP for the proposed 
modified ODMDS contains provisions for corrective

[[Page 14626]]

measures if impacts to potential hardbottom habitat related to dredged 
material disposal are identified.
(9) The Existing Water Quality and Ecology of the Sites as Determined 
by Available Data or Trend Assessment of Baseline Surveys (40 CFR 
228.6(a)(9))
    Water quality of the existing site is typical of the Florida coast. 
Water and sediment quality analyses conducted in the vicinity of the 
proposed modified ODMDS and experience with past disposals in the 
existing Port Everglades ODMDS have not identified any adverse water 
quality impacts from ocean disposal of dredged material. The site 
supports benthic and epibenthic fauna characteristic of the region.
(10) Potentiality for the Development or Recruitment of Nuisance 
Species in the Disposal Site (40 CFR 228.6(a)(10))
    Nuisance species, considered as any undesirable organism not 
previously existing at a location, have not been observed at, or in the 
vicinity of, the proposed modified ODMDS. Disposal of dredged material, 
as well as monitoring, has been ongoing for the past 14 years. Nuisance 
species have not been found. The dredged material to be disposed at the 
ODMDS is expected to be from similar locations to those dredged 
previously; 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))
    A maritime survey of this site was conducted in 2013 to identify 
areas of potential hardbottom resources as well as any historical 
artifacts. These efforts showed the presence of only two anomalies that 
when investigated were not likely to be indicative of potential 
historical or natural features. Wreckage from one modern sailing vessel 
was potentially identified in the northeast corner of the site. 
Scattered rubble hardbottom habitat was potentially identified within 
the expanded footprint.
    The SMMP for the ODMDS contains measures to monitor potential 
identified resources.

III. Environmental Statutory Review

a. National Environmental Policy Act (NEPA)

    The EPA's primary voluntary NEPA document for expanding the 
existing Port Everglades ODMDS is the DEA, prepared by the EPA in 
cooperation with the USACE and issued for public review and comment in 
January 2020. Anyone desiring a copy of the DEA may access it at 
https://www.epa.gov/aboutepa/about-epa-region-4-southeast#r4-public-notices, or obtain a copy from the address given above. The DEA issued 
in January 2020 amends a DEA that was previously issued for public 
review and comment in August 2013 to capture prior corresponding agency 
comments. Any comments received regarding the DEA issued in January 
2020 will be provided in the Final Environmental Assessment for this 
proposed action. The DEA and its Appendices provide the threshold 
environmental review for modification of the ODMDS. The information 
from the DEA is used above in the discussion of the ocean dumping 
criteria.
    The proposed action discussed in the DEA is the permanent 
designation of a modified ODMDS offshore Port Everglades, Florida. The 
purpose of the proposed action is to provide an environmentally 
acceptable option for the ocean disposal of dredged material. The need 
for the proposed modified ODMDS is based on a demonstrated USACE need 
for ocean disposal of dredged material from the Port Everglades Harbor 
Federal Navigation Project, including the deepening and widening 
portions of the Project. The need for ocean disposal for these and 
other future projects, and the suitability of the material for ocean 
disposal, will be determined on a case-by-case basis as part of the 
USACE process for reviewing ocean disposal actions and a public review 
process for its own actions to ocean dump dredged material from federal 
projects. These permit/authorization evaluations will include 
evaluation of disposal alternatives.
    The DEA discusses the need for the proposed modified ODMDS and 
examines ocean disposal site alternatives to the proposed actions. The 
need for expanding the existing Port Everglades ODMDS is based on 
future capacity modeling, movement of fine sediments in the Miami ODMDS 
which correlate to this site, estimated dredging volumes for proposed 
projects, and limited capacity of upland disposal facilities in the 
area. Other options were considered nearer to the Port, but the other 
options were discarded due to potential impacts to protected coral 
resources. The following three ocean disposal alternatives were 
considered in the DEA.
No Action Alternative
    The No Action Alternative is defined as not modifying the size of 
the existing Port Everglades ODMDS. Implementation of this alternative 
would not address the need for an adequately sized ocean dump site to 
accommodate future ocean disposal of dredging projections. As a result, 
the No Action Alternative does not meet the proposed action's purpose 
and need. However, the No Action Alternative was evaluated in the DEA 
as a basis to compare the effects of the other alternatives considered.
Alternative 1: Modification of the Existing Port Everglades ODMDS To 
Encompass a 3.21 nmi\2\ Area in a North-South Orientation (Preferred 
Alternative)
    Modification of the existing Port Everglades ODMDS to encompass a 
3.21 nmi\2\ area as described above is the environmentally and 
operationally preferred alternative and considered the most viable 
option. The existing Port Everglades ODMDS is relatively small and has 
a limited capacity. Modifying the existing Port Everglades ODMDS to 
increase capacity would sustain the disposal needs associated with: The 
federally authorized Port Everglades Harbor sand bypass and navigation 
projects; authorized maintenance dredging; and potential future private 
interests. It is the most feasible option based on containing dredged 
material from disposal operations while impacting the least potential 
hardbottom habitat. A detailed justification for this preferred 
alternative is included in Section 2 in the DEA.
Alternative 2: Modification of the Existing Port Everglades ODMDS To 
Encompass a 2.89 nmi\2\ Area in an East-West Orientation
    In order to inform viable options for expanding the existing site, 
the EPA evaluated the data and information included in the September 
2013 Evaluation of Dredged Material Behavior at the Port Everglades 
Harbor Federal Project Ocean Dredged Material Disposal Site. The EPA 
specifically considered the option of expanding the site in an east-
west orientation. Although designating an expanded ODMDS in an east-
west orientation would provide adequate site capacity, there is the 
possibility that disposal to a site within this orientation would 
result in a higher level of impact to hardbottom habitat. As described 
in the DEA, a site more adequately protective of potential hardbottom 
areas was selected as the preferred alternative (Alternative 1).

b. Magnuson-Stevens Act

    The USACE, in conjunction with EPA, submitted an Essential Fish

[[Page 14627]]

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, to the National Marine Fisheries Service (NMFS). The 
USACE determined that the modification of the existing Port Everglades 
ODMDS will not significantly affect managed species or EFH; however, 
underwater surveys are being conducted to verify conclusions. 
Discussions with the NMFS are ongoing, and consultation will be 
completed prior to finalization of the rule.

c. Coastal Zone Management Act

    Pursuant to an Office of Water policy memorandum dated October 23, 
1989, the EPA has evaluated the proposed site designations for 
consistency with the State of Florida's (the State) approved coastal 
zone management program. On behalf of the EPA, the USACE, Jacksonville 
District determined that the proposed action is consistent with the 
Florida Coastal Management Program to the maximum extent practicable. 
Florida Department of Environmental Protection (FLDEP) issued Coastal 
Zone Consistency for the Port Everglades ODMDS on April 29, 2011. The 
EPA is communicating with the State of Florida to determine appropriate 
next steps to ensure consistency with the Coastal Zone Management Act.

d. Endangered Species Act

    The Endangered Species Act (ESA), as amended, 16 U.S.C. 1531 to 
1544, requires federal agencies to consult with NMFS and the U.S. Fish 
and Wildlife Service 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 is opting to address consultation pursuant to ESA 
Section 7(d) due to the expected publication of an updated Biological 
Opinion for the South Atlantic District of the U.S. Army Corps of 
Engineers, which is expected to address the species to which this 
action may apply.

e. National Historic Preservation Act

    The National Historic Preservation Act (NHPA), 16 U.S.C. 470 to 
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 ODMDS (greater than 700 feet 
depth) exclude potential habitation or resources related to human 
settlements. In a letter dated February 4, 2013, the Florida Department 
of State concurred with the determination that no historic properties 
would be affected by the expansion of the ODMDS. The EPA is in 
communication with the State of Florida to determine whether any 
additional information has become available that may warrant changes to 
their 2013 determination.

IV. Statutory and Executive Order Reviews

    This rule proposes to modify the Port Everglades ODMDS pursuant to 
Section 102 of the MPRSA. This proposed action complies with applicable 
executive orders and statutory provisions as follows:

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

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

b. Executive Order 13089: Coral Reef Protection

    This proposed action considers Executive Order 13089 on Coral Reef 
Protection ``to preserve and protect the biodiversity, health, 
heritage, and social and economic value of U.S. coral reef ecosystems 
and the marine environment.'' Conditions are present in the SMMP which 
are designed to reduce potential impacts from sediments during transit 
to the ODMDS.

c. Paperwork Reduction Act

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

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 proposed action 
will not have a significant economic impact on small entities because 
the proposed rule will only have the effect of regulating the location 
of site to be used for the disposal of dredged material in ocean 
waters. After considering the economic impacts of this proposed rule, 
the EPA certifies that this proposed action will not have a significant 
economic impact on a substantial number of small entities.

e. Unfunded Mandates Reform Act

    This proposed action contains no federal mandates under the 
provisions of Title II of the Unfunded Mandates Reform Act (UMRA) of 
1995, 2 U.S.C. 1531 to 1538, for State, local, or tribal governments or 
the private sector. This proposed action imposes no new enforceable 
duty on any State, local or tribal governments or the private sector. 
Therefore, this proposed action is not subject to the requirements of 
sections 202 or 205 of the UMRA. This proposed 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 proposed action does not have federalism implications. It does 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among various levels of government, as 
specified in Executive Order 13132. Thus, Executive Order 13132 does 
not apply to this proposed 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 proposed action from State and local 
officials.

[[Page 14628]]

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

    This proposed action does not have tribal implications, as 
specified in Executive Order 13175 because the modification of the 
existing Port Everglades 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. In addition, the depths of 
the ODMDS (greater than 700 feet depth) exclude potential habitation or 
resources related to human settlements. Thus, Executive Order 13175 
does not apply to this action. However, the EPA specifically welcomes 
comments on this proposed action from tribal officials and any comments 
related to this Executive Order.

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 proposed action is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks. 
However, the EPA welcomes comments on this proposed action related to 
this Executive Order.

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

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

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 proposed action includes environmental 
monitoring and measurement as described in the EPA's proposed SMMP. The 
EPA will not require the use of specific, prescribed analytic methods 
for monitoring and managing the proposed modified 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. The EPA welcomes comments 
on this aspect of the proposed rulemaking and, specifically, invites 
the public to identify potentially applicable voluntary consensus 
standards and to explain why such standards should be used in this 
proposed action.

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 EPA determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The EPA has assessed the overall protectiveness of 
modifying the existing Port Everglades 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. 
The EPA welcomes comments on this proposed action related to this 
Executive Order.

List of Subjects in 40 CFR Part 228

    Environmental protection, Water pollution control.

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

    Dated: February 18, 2020.
Mary S. Walker,
Regional Administrator, EPA Region 4.

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

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

0
1. The authority citation for part 228 continues to read as follows:

    Authority:  33 U.S.C. 1412 and 1418.

0
2. Section 228.15 is amended by revising paragraphs (h)(14)(i) through 
(iii) and (vi) to read as follows:


Sec.  228.15   Dumping sites designated on a final basis.

* * * * *
    (h) * * *
    (14) * * *
    (i) Location: Corner Coordinates (NAD 1983) 26[deg] 06.500', 
80[deg] 01.000'; 26[deg] 06.500', 80[deg] 02.578'; 26[deg] 08.750, 
80[deg] 02.578'; 26[deg] 08.750', 80[deg] 01.000'.
    (ii) Size: Approximately 2.31 square nautical miles in size.
    (iii) Depth: Ranges from approximately 587 to 761 feet (179 to 232 
meters).
* * * * *
    (vi) Restrictions: (A) Disposal shall be limited to dredged 
material from the Port Everglades, Florida area;
    (B) Disposal shall be limited to dredged material determined to be 
suitable for ocean disposal according to 40 CFR 220-228;
    (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 currently approved SMMP, is 
required.
* * * * *
[FR Doc. 2020-04650 Filed 3-12-20; 8:45 am]
 BILLING CODE 6560-50-P


