[Federal Register Volume 85, Number 104 (Friday, May 29, 2020)]
[Proposed Rules]
[Pages 32340-32346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11030]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[EPA-R09-OW-2020-0188; FRL-10009-64-Region 9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

DATES: Written comments must be received on or before June 29, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OW-2020-0188, by one of the following electronic methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments and accessing the docket and materials related to 
this proposed rule.
     Email: ross.brian@epa.gov.
     Mail: Note that due to the ongoing COVID-19 pandemic EPA's 
office building in San Francisco is closed, and physical mail may not 
be received for some time. Therefore, written comments should be 
submitted by one of the electronic methods listed above. If you are 
unable to access email, please contact Brian Ross via the phone number 
listed below and he will assist you in determining how to best to 
submit your comments.
    Instructions: Direct your comments to Docket ID No. EPA-R09-OW-
2020-0188. 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. 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: The Environmental Assessment (EA) supporting this proposed 
action, and other publicly available docket materials, are accessible 
electronically at www.regulations.gov, and also on the EPA Region 9 web 
page: https://www.epa.gov/ocean-dumping/humboldt-open-ocean-disposal-site-hoods-documents.

FOR FURTHER INFORMATION CONTACT: Brian Ross, U.S. Environmental 
Protection Agency Region 9, Water Division, Dredging & Sediment 
Management Team, 75 Hawthorne Street, San Francisco, California 94105; 
phone number (415) 972-3475; email: ross.brian@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 Humboldt Bay, California. Currently, the U.S. Army 
Corps of Engineers (USACE) would be most affected by this action. 
Potentially affected categories and persons include:

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                                      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.
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[[Page 32341]]

    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 Ocean Disposal Offshore Humboldt Bay, California

    HOODS is currently the only designated ocean dredged material 
disposal site (ODMDS) off the coast of Humboldt Bay, California. The 
existing HOODS is located three to four nautical miles (nmi) offshore 
Humboldt Bay, and is currently 1.0 square nautical mile (nmi\2\) in 
size. HOODS originally received final designation by the EPA in 1995. 
Since that time an average of one million cubic yards (cy) of dredged 
material has been disposed at HOODS each year. The great majority of 
this material has been sand dredged by USACE from the Humboldt Harbor 
entrance channel. The dredged sand that has been disposed at HOODS has 
mounded to the point where the existing site is now effectively 
reaching full capacity. The USACE San Francisco District and EPA Region 
9 have identified a need to expand the capacity of HOODS so that 
ongoing dredging can continue to provide for safe navigation in and 
around Humboldt Bay. The need for modifying current ocean disposal 
capacity is based on historical dredging volumes, estimates of future 
dredging needs, and limited current capacity of alternatives to ocean 
disposal in the area.
    The EPA is proposing to expand the existing HOODS boundaries rather 
than designate a new ocean disposal site off the coast of Humboldt Bay. 
Monitoring studies at HOODS have confirmed that there have been no 
significant adverse environmental consequences of disposal in this 
area, and that there are no unique or limited habitats, features, or 
uses of the ocean that would be affected by expanding the site. Note 
that proposed expansion of the existing HOODS boundary does not by 
itself mean that dredged material from any specific project will 
necessarily be approved to be disposed at the site. Before any person 
can ocean dump dredged material at either the existing HOODS or at the 
proposed expanded HOODS in the future, the EPA and the USACE must 
evaluate the project according to the ocean dumping regulatory criteria 
(40 CFR 227) and the USACE must authorize the disposal under section 
103 of the MPRSA. 33 U.S.C. 1413(b). The USACE relies on the EPA's 
ocean dumping criteria when evaluating permit requests for (and 
implementing federal projects involving) the transportation of dredged 
material for the purpose of dumping it into ocean waters. MPRSA permits 
and federal projects involving ocean dumping of dredged material are 
subject to the EPA's review and concurrence in accordance with 33 
U.S.C. 1413(c). The EPA may concur with or without conditions or 
decline to concur (i.e., non-concur) on the permit. If the EPA concurs 
with conditions, the final permit or authorization must include those 
conditions. If the EPA declines to concur, the USACE cannot issue the 
permit for ocean dumping of dredged material or authorize the disposal.
    The Environmental Assessment (EA) supporting this proposed action, 
along with other publicly available docket materials, are available for 
public review and are accessible electronically at www.regulations.gov, 
and also on the EPA Region 9 web page: https://www.epa.gov/ocean-dumping/humboldt-open-ocean-disposal-site-hoods-documents.

b. Location and Configuration of the Proposed Expanded HOODS

    This action proposes the modification (by expansion) of the 
existing HOODS. The proposed modified HOODS is in approximately -150 to 
-200 feet of water (-45 to -61 meters). The proposed modified 
boundaries would expand the existing HOODS from a size of 1.0 nmi\2\ to 
4.0 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 HOODS Coordinates (NAD 83)
(A) 40[deg]50.300' N, 124[deg]018.017' W
(B) 40[deg]49.267' N, 124[deg]15.767' W
(C) 40[deg]47.550' N, 124[deg]17.083' W
(D) 40[deg]48.567' N, 124[deg]19.300' W
    The proposed modification of the existing HOODS boundary will allow 
the EPA to adaptively manage the site to maximize its capacity, manage 
mounding and loss of fine sediments outside of the site, and minimize 
the potential for any long-term adverse effects to the marine 
environment.

c. Management and Monitoring of the Site

    The proposed modified ODMDS is expected to continue to receive 
suitable dredged material from the Federal navigation project at 
Humboldt Harbor, California, and suitable dredged material from other 
local and regional dredging applicants who obtain an MPRSA permit for 
the disposal of dredged material at the site. Under the Ocean Dumping 
regulations (40 CFR 228.3(b)) EPA is responsible for the management of 
all ocean disposal sites designated under the MPRSA. Management of the 
ocean disposal sites consists of regulating the times, quantity and 
characteristics of the material dumped at the site; establishing 
disposal controls, conditions and requirements to avoid and minimize 
potential impacts to the marine environment; and monitoring the site 
and surrounding environment to verify that unanticipated or significant 
adverse effects are not occurring from past or continued use of the 
ocean disposal site and that terms of the MPRSA permit are met. All 
persons using HOODS would be required to follow any project-specific 
permit conditions, as well as provisions of the Site Management and 
Monitoring Plan (SMMP) for the modified site as identified or 
incorporated into a permit or Federal project. The draft SMMP is 
currently available for review as an appendix to the EA, and separately 
at https://www.epa.gov/ocean-dumping/humboldt-open-ocean-disposal-site-hoods-documents. It includes management and monitoring considerations 
to ensure that disposal activities will not unreasonably degrade or 
endanger the marine environment, human health, welfare, or economic 
potentialities. The draft SMMP for the proposed modified ODMDS also 
includes management conditions to ensure adverse mounding does not 
occur at the site. The SMMP will be finalized by the EPA Region 9 and 
the USACE San Francisco District following finalization of the site 
modification rule and consideration of any comments received on this 
proposed rule and the draft SMMP.

d. MPRSA Criteria

    In evaluating the proposed modified HOODS, the EPA assessed the 
site according to the criteria of the MPRSA, with emphasis on the 
general and specific regulatory criteria of 40 CFR part 228, to 
determine whether the proposed site designation satisfies those 
criteria. The EA provides a detailed 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

[[Page 32342]]

marine environment, particularly avoiding areas of existing fisheries 
or shellfisheries, and regions of heavy commercial or recreational 
navigation. (40 CFR 228.5(a)).
    The original 1995 site designation identified the HOODS location as 
having the least potential for adverse impacts to important fish and 
shellfish resources (particularly including smelt, flatfish, and 
decapods which are all most abundant in waters shallower than 50 m in 
the area, closer to shore). In addition, as part of development of the 
EA supporting this proposed rule, the EPA completed informal 
consultation with the National Marine Fisheries Service (NMFS) and the 
U.S. Fish and Wildlife Service (USFWS), and confirmed that ongoing use 
of the proposed modified HOODS would continue to avoid adverse effects 
on existing fisheries, shellfisheries, or habitats of concern. In 
addition, expansion of HOODS will ensure that mounding of disposed sand 
does not occur to the extent that the wave climate near the Humboldt 
entrance channel is altered and adversely affects navigation 
conditions. The proposed action therefore satisfies this MPRSA 
criterion.
    (b) Sites must be situated such that temporary perturbations to 
water quality or other environmental conditions during initial mixing 
caused by disposal operations would be reduced to normal ambient levels 
or undetectable contaminant concentrations or effects before reaching 
any beach, shoreline, marine sanctuary, or known geographically limited 
fishery or shellfishery. (40 CFR 228.5(b)).
    The proposed HOODS modification area will be used for disposal of 
suitable dredged material as determined by Section 102 of the MPRSA, 33 
U.S.C. 1412, and the Ocean Dumping Criteria published at 40 CFR 220-
228. Based on the USACE and EPA dredged material testing and evaluation 
procedures, disposal of dredged maintenance material and proposed new 
work material is not expected to have any significant impact on water 
quality. The existing and proposed modified HOODS boundaries are 
located sufficiently far from shore and fisheries resources to allow 
temporary water quality disturbances caused by disposal of dredged 
material to be reduced to ambient conditions before reaching any 
environmentally sensitive areas.
    (c) The sizes of disposal sites will be limited in order to 
localize for identification and control any immediate adverse impacts, 
and to permit the implementation of effective monitoring and 
surveillance to prevent adverse long-range impacts. Size, 
configuration, and location are to be determined as part of the 
disposal site evaluation. (40 CFR 228.5(d)).
    The location, size, and configuration of the proposed modified 
HOODS boundaries provide long-term capacity, while also permitting 
effective site management, site monitoring, and limiting environmental 
impacts to the surrounding area to the greatest extent practicable.
    The EA supporting this proposed action considered two alternatives 
for expanding HOODS: Expansion by 0.5 nmi to the north and west; and 
expansion by 1.0 nmi to the north and west (the proposed action). Under 
the proposed action, the effective total capacity of the site would 
increase from the original 25 million cy to over 100 million cy (i.e., 
allowing for 75 million cy of additional disposal to occur), before 
mounding to -130 feet could again occur across the entire site. If 
today's disposal practices were to continue unchanged (i.e., if an 
average of 1 million cy of entrance channel sand per year were to 
continue being disposed of at HOODS indefinitely), the site would reach 
capacity again in about 75 years. In contrast, the smaller expansion 
alternative would provide effective capacity for about 30 years of 
disposal. This smaller footprint would also limit on-site management 
options compared to the proposed action.
    When determining the size of the proposed modified site, the 
ability to implement effective monitoring and surveillance programs was 
considered to ensure that the environment of the site could be 
protected, and that navigational safety would not be compromised by the 
mounding of dredged material. The EPA and USACE have demonstrated that 
the proposed modified HOODS area is feasible to manage and monitor, as 
shown by successful surveys in 2008 and 2014. The draft SMMP (Appendix 
D of the EA) describes the future monitoring and management activities 
that the EPA and USACE will implement to confirm that disposal at the 
site is not significantly affecting adjacent areas.
    (d) EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites where 
historical disposal has occurred. (40 CFR 228.5(e)).
    The continental shelf break is approximately 10 nmi offshore at 
Eureka, California. The Zone of Siting Feasibility (ZSF) analysis 
prepared by USACE in support of the original (1995) HOODS designation 
determined that an economically practicable ocean disposal site serving 
Humboldt Harbor could not be located off the continental shelf, but 
rather would have to be within approximately 4 nmi from the ends of the 
entrance channel jetties. The existing HOODS boundary is 2.5 to 3.7 nmi 
from these jetties. The proposed modified HOODS boundary will extend 
from 3 nmi to 5 nmi from the jetties. While portions of the proposed 
modified site will be slightly beyond the original ZSF threshold of 4 
nmi, the expansion area remains as close to the entrance channel as 
practicable while allowing capacity for future disposal needs without 
creating potentially unsafe mounding. Also, the proposed modified HOODS 
will occur immediately adjacent to where disposal of virtually 
identical dredged material has occurred for the past 25 years. This 
allows the least area to be disturbed overall from ongoing and future 
disposal activity.
Specific Criteria (40 CFR 228.6)
    (1) Geographical Position, Depth of Water, Bottom Topography and 
Distance from Coast. (40 CFR 228.6(a)(1)).
    The proposed modified HOODS is on the continental shelf three to 
five nmi offshore of Eureka, California, in water depths of 
approximately 150 to 200 feet (45 to 61 m). The seafloor in this area 
is comprised of a gently sloping, essentially featureless sedimentary 
plain that grades evenly from fine sand in shallower depths to silts in 
deeper areas. The EA contains a map of the proposed modified HOODS 
boundaries.
    (2) Location in Relation to Breeding, Spawning, Nursery, Feeding, 
or Passage Areas of Living Resources in Adult or Juvenile Phases. (40 
CFR 228.6(a)(2)).
    The HOODS area provides feeding and breeding areas for common 
resident benthic organisms, fish, marine mammal, turtle, and seabird 
species. However, the proposed modified HOODS boundaries have been 
selected to avoid the presence of any unique or limited breeding, 
spawning, nursery, feeding, or passage areas for adult or juvenile 
phases of living resources and designation of the site is not expected 
to affect any geographically limited (i.e., unique) resources or 
habitats. Informal Endangered Species Act (ESA) consultation with 
USFWS, and both ESA and Essential Fish Habitat (EFH) consultations with 
NMFS, confirmed that ongoing disposal operations in an expanded HOODS 
will not have significant impacts to sensitive living resources or 
their habitats.
    (3) Location in Relation to Beaches and Other Amenity Areas. (40 
CFR 228.6(a)(3)).

[[Page 32343]]

    The proposed modified HOODS boundaries begin at approximately three 
nmi offshore and the square site extends two nmi further offshore. The 
proposed site is therefore well removed from beaches or amenity areas, 
and currents in the area are not expected to transport material 
disposed at HOODS toward shore. No significant impacts to beaches or 
amenity areas associated with use of the existing HOODS have been 
detected.
    (4) Types and Quantities of Wastes Proposed to be Disposed of, and 
Proposed Methods of Release, including Methods of Packing the Waste, if 
any. (40 CFR 228.6(a)(4)).
    Only suitable dredged material that meets the Ocean Dumping 
Criteria in 40 CFR 220-228 and receives a permit or is otherwise 
authorized for dumping by the USACE, and concurred with by EPA, will be 
disposed in the proposed modified HOODS. Dredged materials dumped in 
this area will be primarily sand with some fines, and most will 
originate from Humboldt Harbor. Average yearly disposal of dredged 
material is expected to continue to be approximately 1,000,000 cubic 
yards, primarily by government owned or contracted hopper dredges. None 
of the material is packaged in any manner. If a Nearshore Sand 
Placement Site (NSPS) is established nearby in the future, the volume 
of sand disposed at HOODS could substantially decrease.
    (5) Feasibility of Surveillance and Monitoring. (40 CFR 
228.6(a)(5)).
    The EPA expects monitoring and surveillance at the proposed 
modified HOODS to continue to be feasible and readily performed from 
ocean or regional class research vessels. The area of the proposed 
modified HOODS has been successfully surveyed and sampled in 2008 and 
2014. The EPA and USACE will continue to periodically monitor the site 
for physical, biological and chemical attributes, as described in the 
draft SMMP for the proposed modified site.
    (6) Dispersal, Horizontal Transport and Vertical Mixing 
Characteristics of the Area, including Prevailing Current Direction and 
Velocity, if any. (40 CFR 228.6(a)(6)).
    Ocean current monitoring in the vicinity of HOODS has confirmed 
both up- and down-coast current directions (depending on the season), 
with near-surface current velocities on the order of 25 cm/sec (0.5 
knot), and deeper-water current velocities of 20 cm/sec (0.4 knot) at 
45 meters deep and 15 cm/sec (0.3 knot) at the bottom. These current 
conditions have not adversely affected the ability to successfully and 
precisely dispose of dredged material permitted or authorized for 
disposal at HOODS in the past nor are they expected to affect disposal 
in the future.
    (7) Existence and Effects of Current and Previous Discharges and 
Dumping in the Area (including Cumulative Effects). (40 CFR 
228.6(a)(7)).
    Previous disposal of dredged material at the existing HOODS has 
resulted in mounding of sand and burial of benthic organisms within the 
site but no discernable physical, chemical, or biological effects 
outside the site. Water quality effects from active disposal are 
temporary, spatially limited, and return to background levels prior to 
the next disposal event. Short-term, long-term, and cumulative effects 
of dredged material disposal in the proposed modified ODMDS would be 
negligible, and similar to those for the existing HOODS.
    The only discharge in the vicinity of HOODS is from DG Fairhaven 
Power LLC's Fairhaven Power Facility on the Samoa Peninsula. Fairhaven 
Power is permitted to discharge a maximum of 0.35 million gallons per 
day of powerplant-related process water, cooling tower water, and other 
wastewater under terms of their current National Pollutant Discharge 
Elimination System (NPDES) permit No. CA0024571, issued by the State of 
California's North Coast Water Board. The company discharges through an 
existing outfall into ocean waters adjacent to the Samoa Peninsula. The 
NPDES permit prohibits discharging wastewater in violation of effluent 
standards or prohibitions established under Section 307(a) of the Clean 
Water Act, and it also prohibits discharging sewage sludge. The outfall 
is located approximately 3.5 nautical miles (6.5 kilometers) east of 
the HOODS. Prevailing nearshore currents would direct discharge plumes 
from this outfall up or down the coast, depending of the seasonal 
current regime, not offshore towards the HOODS. The EPA believes that 
there will be no adverse cumulative or synergistic impacts from the use 
of HOODS and discharges from the outfall described.
    (8) Interference with Shipping, Fishing, Recreation, Mineral 
Extraction, Desalination, Fish and Shellfish Culture, Areas of Special 
Scientific Importance and Other Legitimate Uses of the Ocean. (40 CFR 
228.6(a)(8)).
    Minor, short-term interferences with commercial and recreational 
boat traffic may occur within Humboldt Harbor during dredging 
operations. However, interference as a result of the transport and 
disposal of dredged material to HOODS would be even less because 
disposal vessels move slowly, remain in established navigation 
channels, and operations are announced via U.S. Coast Guard Notice to 
Mariners. There may be minor, temporary interferences with recreational 
fishing in the area during disposal operations, but HOODS is not closed 
to fishing or other uses. HOODS has not been identified as an area of 
special scientific importance. There are no aquaculture areas near the 
site. The likelihood of direct interference with these activities is 
therefore negligible.
    (9) The Existing Water Quality and Ecology of the Sites as 
Determined by Available Data or Trend Assessment of Baseline Surveys. 
(40 CFR 228.6(a)(9)).
    Water quality at the existing HOODS is typical of waters offshore 
of the northern California coast. Monitoring conducted in the vicinity 
of the proposed modified HOODS and experience with past disposals in 
the existing HOODS have not identified any adverse water quality 
impacts from ocean disposal of dredged material. Water column plumes 
associated with disposal events rapidly return to background, before 
subsequent disposal events occur. The seafloor in this area is 
comprised of a gently sloping, essentially featureless sedimentary 
plain that grades evenly from fine sand in shallower depths to silts in 
deeper areas. The existing HOODS supports benthic and epibenthic fauna 
characteristic of the region, but there are no unique or limited 
habitats in the vicinity. No adverse impacts to benthos outside the 
disposal site have been identified based on comprehensive monitoring.
    (10) Potentiality for the Development or Recruitment of Nuisance 
Species in the Disposal Site. (40 CFR 228.6(a) (10)).
    Nuisance species, considered as any undesirable organism not 
previously existing at a location, have not been observed at, or in the 
vicinity of, the proposed modified HOODS. Disposal of dredged material, 
as well as monitoring, has been ongoing for the past 25 years. The 
dredged material to be disposed at the proposed modified ODMDS is 
expected to be from similar locations to those dredged previously and 
disposed of at the existing site; therefore, it expected that any 
benthic organisms transported to the site would be relatively similar 
in nature to those already present.
    (11) Existence at or in Close Proximity to the Site of any 
Significant Natural or Cultural Feature of Historical Importance. (40 
CFR 228.6(a) (11)).
    EPA evaluated state records and coordinated with the California 
State Lands Commission concerning historic shipwrecks near HOODS. The 
EA documents that the nearest recorded shipwreck sites are close to 
shore and

[[Page 32344]]

would not be affected by ongoing disposal at HOODS. In addition, USACE 
conducted a survey for potential shipwrecks near the existing HOODS in 
1991 (prior to designation of the existing HOODS). The USACE survey 
identified three magnetic anomalies that could potentially be 
associated with unrecorded shipwrecks. None of these anomalies has been 
buried by the existing HOODS disposal mound. The EPA collected high-
resolution multibeam echo sounder data in 2014 at the locations of each 
magnetic anomaly, and confirmed that no debris, structures, or other 
material extended above the sediment surface at any of these locations. 
Because these anomalies do not extend above the surface now, and 
apparently have not since at least 1991, their exact character remains 
unknown. Ongoing disposal operations may effectively bury these 
features further but will not otherwise directly affect them.

III. Environmental Statutory Review

a. National Environmental Policy Act (NEPA)

    The EPA's primary voluntary NEPA document for expanding the 
existing HOODS is the EA, prepared by the EPA in cooperation with the 
USACE and issued for public review simultaneously with this proposed 
rule. Anyone desiring to review the EA may access it at 
www.regulations.gov under Docket ID No. EPA-R09-OW-2020-0188, or at 
https://www.epa.gov/ocean-dumping/humboldt-open-ocean-disposal-site-hoods-documents. The EA and its Appendices provide the threshold 
environmental review for modification of HOODS. The EA discusses in 
detail the purpose and need for the proposed action and examines 
alternatives. The EPA determined that there would be no significant 
adverse impacts of implementing either of the action alternatives 
evaluated for expanding the existing HOODS.
    The following three ocean disposal alternatives were considered in 
detail in the EA.
No Action Alternative
    The No Action Alternative is defined as not modifying the size of 
the existing HOODS boundaries. This alternative would not address the 
need for an adequately sized ocean disposal site to accommodate an 
annual average of 1,000,000 cy of ongoing and future dredging. Because 
there is no other currently available disposal site for this material, 
rapid shoaling of the entrance channel would quickly render navigation 
unsafe, significantly affecting the economy of the greater Eureka area. 
Increased wave action in the Harbor entrance would endanger commercial 
ships as well as fishing and recreational vessels. This situation would 
discourage shippers from using Humboldt Bay for commerce, because it 
requires additional vessel trips to accommodate ``light-loaded'' 
vessels, resulting in increased transportation costs, decreased vessel 
safety, and maneuvering problems. This would have a long-term adverse 
impact on the local economy. In addition, use of the Humboldt Harbor as 
a port of refuge could be affected. Finally, ship groundings caused by 
improperly maintained deep-draft channels could result in adverse 
ecological repercussions (i.e., oil and fuel spills). Although the No 
Action Alternative would not address the purpose and need for the 
proposed action, it was evaluated in the EA as a basis to compare the 
effects of the other alternatives considered.
Alternative 1: Expansion of HOODS by 1 nmi (Preferred Alternative)
    Alternative 1, the Proposed Action, is to slightly reorient and 
expand the existing HOODS boundary by 1 nmi to the north (upcoast) and 
1 nmi to the west (offshore). Alternative 1 is the Proposed Action 
because it would provide environmentally acceptable disposal capacity 
for many years, while also affording the most operational flexibility 
for managing the dredged material in a manner that would further 
minimize even physical impacts over time. This configuration would 
result in the total area of the site increasing from 1 square nmi to 4 
square nmi. The effective total capacity of the site would increase 
from the original 25 million cy to over 100 million cy (i.e., allowing 
for 75 million cy of additional disposal to occur), before mounding to 
-130 feet could again occur across the entire site. If current disposal 
practices were to continue unchanged (i.e., if 1 million cy of entrance 
channel sand per year were to continue to be disposed of at HOODS 
indefinitely), the modified site would reach capacity in about 75 
years.
Alternative 2: Expansion of HOODS by \1/2\ nmi
    Alternative 2 is the expansion of the existing HOODS boundary by 
\1/2\ nmi to the north (upcoast) and \1/2\ nmi to the west (offshore). 
This configuration would result in the total area of the site 
increasing from 1 square nmi to 2.25 square nmi. The effective total 
capacity of the site would increase from the original 25 million cy to 
approximately 56 million cy (i.e., allowing for approximately 31 
million cy of additional disposal to occur), before mounding to -130 
feet could again occur across the entire site. If current disposal 
practices were to continue unchanged (i.e., if 1 million cy per year of 
entrance channel sand were to continue to be disposed of at HOODS 
indefinitely), the modified site would reach capacity in about 31 
years.

b. Magnuson-Stevens Act

    The EPA submitted an EFH assessment to the NMFS, pursuant to 
Section 305(b), 16 U.S.C. 1855(b)(2), of the Magnuson-Stevens Fishery 
Conservation and Management Act, as amended, 16 U.S.C. 1801 to 1891. 
The EPA determined that the expansion of HOODS by one nmi (the proposed 
action) will not significantly affect managed species or EFH. NMFS 
concurred with the EPA's determination, but included one Conservation 
Recommendation to further minimize potential impacts. Specifically, 
NMFS recommended continuing to manage future disposal at HOODS by 
expanding the mound while leaving other areas of the site undisturbed 
as long as possible, rather than purposely spreading disposal events 
throughout the site each year. The draft SMMP (available along with 
this proposed rule for public comment) discusses a proposed approach 
for implementing this NMFS Conservation Recommendation; the SMMP will 
be finalized after considering any comments on it and on this proposed 
rule.

c. Coastal Zone Management Act

    The EPA will submit a Consistency Determination (CD) package to the 
California Coastal Commission (CCC) following the close of the public 
comment period on the Environmental Assessment and the proposed rule. 
The CD package will specifically address how the proposed action to 
expand HOODS is consistent to the maximum extent practicable with the 
California Coastal Act Chapter 3 policies. EPA will not take final 
action on the proposed HOODS expansion until CCC review of EPA's 
consistency determination is complete and any comments have been 
addressed to the maximum extent practicable.

d. Endangered Species Act

    The ESA, as amended, 16 U.S.C. 1531 to 1544, requires federal 
agencies to consult with NMFS and the USFWS to ensure that any action 
authorized, funded, or carried out by the federal agency is not likely 
to jeopardize the continued existence of any endangered

[[Page 32345]]

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

e. National Historic Preservation Act

    The National Historic Preservation Act (NHPA), 16 U.S.C. 470 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 proposed HOODS (approximately 
150-200 feet) generally excludes potential habitation or resources 
related to human settlements in this area. Historic shipwreck remnants 
do exist in the general vicinity, but none would be affected by ongoing 
disposal activities within the expanded HOODS boundaries.

IV. Statutory and Executive Order Reviews

    This rule proposes to modify the HOODS by expanding the boundaries 
of the existing site pursuant to Section 102 of the MPRSA, 33 U.S.C 
1412. 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

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

c. Paperwork Reduction Act

    This 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 
modification does not require persons to obtain, maintain, retain, 
report, or publicly disclose information to or for a federal agency.

d. Regulatory Flexibility Act

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

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 HOODS will not have a direct effect on Indian Tribes, on the 
relationship between the federal government and Indian Tribes, or on 
the distribution of power and responsibilities between the federal 
government and Indian Tribes. In addition, the depths of the proposed 
HOODS (approximately 150 to 200 feet) generally excludes potential 
habitation or resources related to human settlements. Thus, Executive 
Order 13175 does not apply to this action. Nevertheless, the EPA 
specifically solicited input from officials of 10 potentially 
interested tribal governments during the scoping phase of this action. 
The EPA is now actively soliciting comments from these tribes on this 
proposed action, as well as any

[[Page 32346]]

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) (Sec.  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 HOODS. The Agency 
plans to allow the use of any method, whether it constitutes a 
voluntary consensus standard or not, that meets the monitoring and 
measurement criteria discussed in the SMMP. 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 HOODS against the criteria established pursuant 
to the MPRSA to ensure that any adverse impact to the environment will 
be mitigated to the greatest extent practicable. 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: May 14, 2020.
John W. Busterud,
Regional Administrator, EPA Region 9.

    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 (l)(10) (i) through 
(vi) to read as follows:


Sec.  228.15  Dumping sites designated on a final basis.

* * * * *
    (l) * * *
    (10) * * *
    (i) Location: The coordinates of the four corners of the square 
site are: 40[deg] 50.300' North latitude (N) by 124[deg]018.017' West 
longitude (W); 40[deg]49.267' N by 124[deg]15.767' W; 40[deg]47.550' N 
by 124[deg]17.083' W; and 40[deg]48.567' N by 124[deg]19.300' W (North 
American Datum from 1983).
    (ii) Size: 4 square nautical miles (13.4 square kilometers).
    (iii) Depth: Water depths within the area range between 
approximately 150 to 200 feet (45 to 61 meters).
    (iv) Use Restricted to Disposal of: Disposal shall be limited to 
dredged material determined to be suitable for ocean disposal according 
to 40 CFR 220-228.
    (v) Period of Use: Continuing use over 50 years from date of site 
designation, subject to restrictions and provisions set forth in 
paragraph (l)(10)(vi) of this section.
    (vi) Restrictions/Provisions: Site management and monitoring 
activities shall be implemented during the period of site use in 
accordance with the permit or Federal project that identifies or 
incorporates the most recent Site Management and Monitoring Plan (SMMP) 
for the HOODS published by EPA in consultation with USACE, and as may 
be modified in EPA concurrences for individual projects disposing at 
HOODS. The SMMP may be periodically revised as necessary; proposed 
substantive revisions to the SMMP shall be made following opportunity 
for public review and comment.
* * * * *
[FR Doc. 2020-11030 Filed 5-28-20; 8:45 am]
BILLING CODE 6560-50-P


