Ocean Disposal; Designation of Dredged Material Disposal Sites in Central and Western Long Island Sound, CT
With the publication of this final rule, EPA is designating two open-water dredged material disposal sites, Central Long Island Sound (CLIS) and Western Long Island Sound (WLIS), for the disposal of dredged material from harbors and navigation channels in the Long Island Sound vicinity in the states of Connecticut and New York. This action is necessary to provide long-term, open-water, dredged material disposal sites as an alternative for the possible future disposal of such material. The basis for this action is described in a Final Environmental Impact Statement (FEIS) published by EPA in March 2004. The FEIS identifies designation of the CLIS and WLIS dredged material disposal sites as the preferred alternatives from the range of options considered. On September 12, 2003, EPA published in the Federal Register a proposed rule and a notice of availability of a Draft EIS (DEIS) for this action. These disposal site designations are subject to various restrictions designed to support the goal of terminating or reducing the disposal of dredged material into Long Island Sound, as explained below in subsection E. 3 of the Supplementary Information section.
EPA has conducted the disposal site designation process consistent with the requirements of the Marine Protection, Research, and Sanctuaries Act (MPRSA), the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), the Coastal Zone Management Act (CZMA), and other relevant statutes and regulations. Under NEPA, federal agencies prepare a public record of decision (ROD) at the time of their decision on any action for which an FEIS has been prepared. This Federal Register notice for the final rule will also serve as EPA's ROD for the site designations.
The site designations are intended to be effective for an indefinite period of time. EPA has agreed, however, that use of the sites pursuant to these designations may be suspended or terminated in accordance with the Restrictions included in the final rule.
The designation of these two disposal sites does not by itself authorize the disposal of dredged material from any particular dredging project at either site. The designation of the CLIS and WLIS disposal sites simply makes those sites available for use for the dredged material from a specific project if no environmentally preferable, practicable alternative for managing that dredged material exists, and if analysis of the dredged material indicates that it is suitable for open-water disposal.
Thus, each proposed dredging project will be evaluated to determine whether there are practicable, environmentally preferable alternatives to open-water disposal. In addition, the dredged material from each proposed disposal project will be subjected to MPRSA and/or CWA sediment testing requirements to determine its suitability for possible open-water disposal at an approved site. Alternatives to open-water disposal that will be considered include upland disposal and beneficial uses such as beach nourishment. If environmentally preferable, practicable disposal alternatives exist, open-water disposal will not be allowed. In addition, the dredged material will undergo physical, chemical, and biological analysis to determine its suitability for open-water disposal. EPA will not approve dredged material for open-water disposal if it determines that the material has the potential to cause unacceptable adverse effects to the marine environment or human health. The review process for proposed disposal projects is discussed in more detail below and in the FEIS.
As dredged material disposal sites designated by EPA under the MPRSA, CLIS and WLIS also will be subject to newly developed, detailed management and monitoring protocols to track site conditions and prevent the occurrence of unacceptable adverse effects. These management and monitoring protocols are described in the CLIS and WLIS Site Management and Monitoring Plans (SMMPs), which are incorporated in the FEIS as Appendix J. EPA is authorized to close or limit the use of these sites to further disposal activity if their use causes unacceptable adverse impacts to the marine environment or human health.
Table of Contents Back to Top
- FOR FURTHER INFORMATION CONTACT:
- SUPPLEMENTARY INFORMATION:
- Table of Contents
- A. Purpose
- B. Potentially Affected Entities
- C. Disposal Site Descriptions
- 1. Central Long Island Sound (CLIS)
- 2. Western Long Island Sound (WLIS)
- D. Statutory and Regulatory Authorities
- 1. Marine Protection, Research, and Sanctuaries Act (MPRSA); Clean Water Act (CWA)
- 2. National Environmental Policy Act (NEPA)
- 3. Coastal Zone Management Act (CZMA)
- 4. Endangered Species Act (ESA)
- 5. Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)
- E. Compliance With Statutory and Regulatory Requirements
- 1. Marine Protection, Research, and Sanctuaries Act (MPRSA)
- a. Procedural Requirements
- b. Disposal Site Selection Criteria
- General Criteria (40 CFR 228.5)
- Specific Criteria (40 CFR 228.6)
- 1. Geographical Position, Depth of Water, Bottom Topography and Distance From Coast (40 CFR 228.6(a)(1))
- 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))
- 3. Location in Relation to Beaches and Other Amenity Areas (40 CFR 228.6(a)(3))
- 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))
- 5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))
- 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))
- 7. Existence and Effects of Current and Previous Discharges and Dumping in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7))
- 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))
- 9. The Existing Water Quality and Ecology of the Sites as Determined by Available Data or by Trend Assessment or Baseline Surveys (40 CFR 228.6(a)(9))
- 10. Potentiality for the Development or Recruitment of Nuisance Species in the Disposal Sites(40 CFR 228.6(a)(10))
- 11. Existence at or in Close Proximity to the Sites of Any Significant Natural or Cultural Feature of Historical Importance (40 CFR 228.6(a)(11))
- c. Disposal Site Management (40 CFR 228.3, 228.7, 228.8 and 228.9)
- 2. National Environmental Policy Act (NEPA)
- Public Involvement
- Environmental Impact Statement
- 3. Coastal Zone Management Act (CZMA)
- Summary of Restrictions
- 4. Endangered Species Act (ESA)
- 5. Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)
- F. Public Comments
- G. Action
- H. Supporting Documents
- J. Statutory and Executive Order Reviews
- 1. Executive Order 12866: Regulatory Planning and Review
- 2. Paperwork Reduction Act (PRA)
- 3. Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996, (SBREFA), 5 U.S.C. 601 et seq.
- 4. The Unfunded Mandates Reform Act and Executive Order 12875
- 5. Executive Order 13132: Federalism
- 6. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
- 7. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
- 8. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use
- 9. National Technology Transfer Advancement Act
- 10. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
- 11. Congressional Review Act
- 12. Plain Language Directive
- 13. Executive Order 13158: Marine Protected Areas
- List of Subjects in 40 CFR Part 228
- PART 228—CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN DUMPING
DATES: Back to Top
This final regulation is effective on July 5, 2005.
ADDRESSES: Back to Top
EPA has established a file supporting this action that includes the Federal Register notice for this final rule, the FEIS and its appendices, including the SMMPs and responses to public comments, and other supporting documents.
1. In person. The file is available for inspection at the following location: EPA New England Library, One Congress St., Suite 1100, Boston, MA 02114-2023. For access to the documents, call Peg Nelson at (617) 918-1991 between 10 a.m. and 3 p.m. Monday through Thursday, excluding legal holidays, for an appointment.
2. Electronically. You also may review and/or obtain electronic copies of the rule, FEIS, and various support documents from the EPA home page at http://www.epa.gov/fedrgstr/, or on the EPA Region 1 homepage at http://www.epa.gov/region1/eco/lisdreg/.
The Federal Register notice for this final rule and the responses to public comments on the FEIS also are available for review by the public at the following locations. The DEIS and FEIS and its appendices, including the SMMPs and responses to public comments on the DEIS, also were provided to most of these sources at the time of their publication, and may still be available for review there.
1. In person. A. Cold Spring Harbor Library, Goose Hill Rd., Cold Spring Harbor, NY. B. East Hampton Library, 159 Main St., East Hampton, NY. C. Mamaroneck Public Library Inc., 136 Prospect Ave., Mamaroneck, NY. D. Montauk Library, 871 Montauk Highway, Montauk, NY. E. New York State Library, Cultural Education Center 6th Floor, Empire State Center, Albany, NY. F. Northport Library, 151 Laurel Ave., Northport, NY. G. Port Jefferson Free Library, 100 Thompson St., Port Jefferson, NY. H. Port Washington Public Library, 1 Library Dr., Port Washington, NY. I. Riverhead Free Library, 330 Court St., Riverhead, NY. J. Bridgeport Public Library, 925 Broad St., Bridgeport, CT. K. Connecticut State Library, Information Service Division, 231 Capital Ave., Hartford, CT. L. Milford City Library, 57 New Haven Ave., Milford, CT. M. New Haven Free Public Library, 133 Elm St., New Haven, CT. N. New London Public Library, 63 Huntington St., New London, CT. O. Norwalk Public Library, 1 Belden Ave., Norwalk, CT. P. Acton Public Library, 60 Old Boston Post Rd., Old Saybrook, CT. Q. Ferguson Library, 752 High Ridge Road, Stamford, CT. R. Boston Public Library, 700 Boylston St., Copley Square, Boston, MA.
FOR FURTHER INFORMATION CONTACT: Back to Top
Ms. Jean Brochi, U.S. Environmental Protection Agency, One Congress St., Suite 1100 (COP), Boston, MA 02114-2023; telephone number: (617) 918-1070; fax number: (617) 918-1505; e-mail address: Brochi_Jeanlis@epa.gov.
SUPPLEMENTARY INFORMATION: Back to Top
Table of Contents Back to Top
B. Potentially Affected Entities
C. Disposal Site Descriptions
D. Statutory and Regulatory Authorities
E. Compliance with Statutory and Regulatory Requirements
F. Public Comments
H. Supporting Documents
A. Purpose Back to Top
The two dredged material disposal sites in Long Island Sound designated by this action are necessary to provide long-term, environmentally acceptable disposal options for potential use by the U.S. Army Corps of Engineers (USACE, or Corps) and other federal, state, municipal and private entities who must dredge channels, harbors, marinas and other aquatic areas in the Long Island Sound vicinity in order to maintain conditions for safe navigation for the purposes of marine commerce and recreation.
B. Potentially Affected Entities Back to Top
Entities potentially affected by this action are persons, organizations, or government bodies seeking to dispose of dredged material in waters of Long Island Sound, subject to the requirements of the MPRSA and/or the CWA and their implementing regulations. This final rule is expected to be primarily of relevance to: (a) Parties seeking permits from the USACE to transport more than 25,000 cubic yards of dredged material for the purpose of disposal into the waters of the central and western regions of Long Island Sound; (b) to the Corps itself for its own dredged material disposal projects; and (c) to other federal agencies seeking to dispose of dredged material in the central and western regions of Long Island Sound. Potentially affected categories and entities that may seek to use the dredged material disposal sites and would be subject to this final rule may include:
|Category||Examples of potentially affected entities|
|Federal Government||U.S. Army Corps of Engineers Civil Works Projects, and other federal agencies.|
|Industry and General Public||Port authorities, harbors, shipyards, marine repair facilities, marinas, yacht clubs, and berthowners.|
|State, local and tribal governments||Governments owning and/or responsible for ports, harbors, and/orberths, government agencies requiring disposal of dredged material associated with public works projects.|
This table lists the types of entities that could potentially be affected by this final rule. EPA notes that nothing in this final rule alters the jurisdiction or authority of EPA or the types of entities regulated under the MPRSA and/or CWA. Questions regarding the applicability of this final rule to a particular entity should be directed to the contact person listed in the preceding FOR FURTHER INFORMATION CONTACT section.
C. Disposal Site Descriptions Back to Top
The following site descriptions are based on information in section 3.4.3 of the FEIS and supporting documents.
1. Central Long Island Sound (CLIS)
The CLIS site has been used for the disposal of dredged material from central and western Long Island Sound since the early 1940s and possibly earlier. An actively used site, CLIS has received close to 14 million cubic yards since 1941. Predecessors to the CLIS site in the same general vicinity received dredged material since the late 1800s. Between 1982 and 2001, CLIS received approximately seven million cubic yards, with an average annual volume of 350,000 cubic yards.
In recent years, dredged material disposal at CLIS has been conducted pursuant to either the Corps' short-term site selection authority under section 103(b) of the MPRSA or, for small (25,000 cubic yards or less), non-federal dredging projects, the Corps' CWA section 404 permitting authority. Prior disposal activity dating back to 1941 and possibly earlier was conducted under other applicable federal and state legal requirements. The availability of CLIS for use by the USACE under its most recent short-term site selection expired on February 18, 2004. Under MPRSA section 103(b), the term of the Corps site selection may not be extended. Therefore, the CLIS site is currently available only for disposal from non-federal projects generating 25,000 cubic yards or less of dredged material that satisfy CWA section 404 requirements.
The CLIS disposal site is a 1.1 by 2.2 nautical mile (nmi) rectangular area, about 2.4 square nautical miles (nmi 2) in size. It is located 5.6 nmi south of South End Point near East Haven, Connecticut, and over 10 nmi north of Shoreham Beach, New York, in water depths ranging from 56 to 77 feet (17 to 23.5 meters). The site is entirely within Connecticut state waters, approximately 2.5 nmi north of the New York state border.
This final rule designates the CLIS site with boundaries slightly reconfigured from those of the current site. The northern boundary was extended 700 feet (213 meters) to the north, and the eastern boundary was extended 1,230 feet (375 meters) to the east, to encompass two historic disposal mounds, the FVP and CS2 mounds, that lie outside the current site boundaries. This reconfiguration will allow for management and monitoring of these two mounds. The coordinates (North American Datum 1983: NAD 83) for the CLIS site are as follows:
41° 9.5′ N72° 54.4′ W
41° 9.5′ N72° 51.5′ W
41° 8.4′ N72° 54.4′ W
41° 8.4′ N72° 51.5′ W
The sediments at the site are predominantly clayey silt, with areas of mixed sand, clay, and silt. These sediments are typical of those found in central Long Island Sound, which is generally a fine-grained depositional environment. In addition to the ambient silts from this region, the site also contains deposits of material of mixed grain sizes dredged from harbors and navigation channels throughout the central and western Long Island Sound region.
2. Western Long Island Sound (WLIS)
The WLIS site has been used for dredged material disposal since 1982 when it was identified by the Corps in an EIS as the preferred alternative for a regional dredged material disposal site to serve the dredging needs of western Long Island Sound. Between 1982 and 2001, WLIS received 1.7 million cubic yards, with an average annual volume of 85,000 cubic yards. Prior to 1982, sites in the immediate vicinity of WLIS, including the Eaton's Neck, Stamford, and Norwalk historical disposal sites, served the dredging needs of the western Sound. In recent years, the WLIS site has been used pursuant to the Corps' short-term site selection authority under MPRSA section 103(b). Under that authority, the site could potentially be used for an additional five years starting with its next use for a project regulated under the MPRSA.
The WLIS disposal site is a 1.2 by 1.3 nmi rectangular area, about 1.56 nmi  in size. It is located 2.5 nmi south of Long Neck Point near Noroton, Connecticut, and two nmi north of Lloyd Point, New York, in water depths of 79 to 118 feet (24 to 36 meters). The site is entirely within Connecticut state waters, approximately 200 yards north of the New York state border.
This final rule designates the WLIS site with boundaries that have been slightly reconfigured from its existing location. The entire site has been shifted to the west by approximately 1,106 feet (337 meters) and to the north by 607 feet (185 meters). This shift will move the WLIS site out of a rapidly shoaling area in the southeast portion of the existing site. The coordinates (North American Datum 1983: NAD 83) for the reconfigured WLIS site are as follows:
41° 00.1′ N73° 29.8′ W
41° 00.1′ N73° 28.1′ W
40° 58.9′ N73° 29.8′ W
40° 58.9′ N73° 28.1′ W
The sediments at the site are heterogeneous, with clayey silt in the northeast corner and a mixture of sand-silt-clay in the center and southeast corner. These sediments are typical of those found in the western basin of Long Island Sound, which is generally a fine-grained depositional environment. In addition to the ambient silts from this region, the site also contains deposits of material of mixed grain sizes dredged from harbors and navigation channels throughout the western Long Island Sound region.
D. Statutory and Regulatory Authorities Back to Top
The dredged material disposal site designation process has been conducted consistent with the requirements of the Marine Protection, Research, and Sanctuaries Act (MPRSA), the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), the Coastal Zone Management Act (CZMA), the Endangered Species Act (ESA), the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), and any other applicable legal requirements.
1. Marine Protection, Research, and Sanctuaries Act (MPRSA); Clean Water Act (CWA)
The primary statutes governing the aquatic disposal of dredged material in the United States are the MPRSA, 33 U.S.C. 1401, et seq., and the CWA, 33 U.S.C. 1251, et seq. The waters of Long Island Sound are landward of the baseline from which the territorial sea of the United States is measured. As with other waters lying landward of the baseline, all dredged material disposal activities in Long Island Sound, whether from federal or non-federal projects of any size, are subject to the requirements of section 404 of the CWA, 33 U.S.C. 1344. The MPRSA generally only applies to dredged material disposal in waters seaward of the baseline and would not apply to Long Island Sound but for the 1980 amendment that added section 106(f) to the statute, 33 U.S.C. 1416(f). This provision—commonly referred to as the “Ambro Amendment” after former New York Congressman Jerome Ambro—requires that the disposal of dredged material in Long Island Sound from federal projects (projects carried out under the USACE civil works program or by other federal agencies) and non-federal projects involving more than 25,000 cubic yards of material, must be carried out to comply with the requirements of both CWA section 404 and the MPRSA. This applies to both the authorization of specific disposal sites and the assessment of the suitability of specific dredged material for disposal. Disposal from non-federal projects involving 25,000 cubic yards or less of dredged material, however, is subject only to CWA section 404.
Section 102(c) of the MPRSA, as amended, 33 U.S.C. 1412(c), et seq., gives the Administrator of EPA authority to designate sites where ocean disposal of dredged material, among other things, may be permitted. See also 33 U.S.C. 1413(b) and 40 CFR 228.4(e). The statute places no specific time limit on the term for use of an EPA-designated disposal site. Thus, an EPA site designation can be for an indefinite term, and are generally thought of as long-term designations, but EPA may place restrictions or limits on the use of the site based on the site's capacity to receive dredged material or other environmental concerns. See 33 U.S.C. 1412(c). On October 1, 1986, the Administrator delegated authority to designate dredged material disposal sites to the Regional Administrator of the EPA Region in which the sites are located. The CLIS and WLIS sites are located in Connecticut waters in Long Island Sound and, therefore, are subject to the site designation authority of the Regional Administrator of the EPA New England Regional Office.
Section 103(b) of the MPRSA, 33 U.S.C. 1413(b), provides that any ocean disposal of dredged material should occur at EPA-designated sites when feasible. In the absence of an available EPA-designated site, however, the Corps is authorized to “select” appropriate disposal sites. In 1992, Congress amended MPRSA section 103(b) to place maximum time limits on the use of Corps-selected disposal sites. Specifically, the statute restricted the use of such sites to two separate five-year terms. Thus, open-water disposal in Long Island Sound of dredged material from projects subject to MPRSA requirements under section 106(f) of the statute (i.e., federal projects or private projects involving more than 25,000 cubic yards of material) has been conducted at sites used pursuant to the Corps' site selection authority. The CLIS disposal site can no longer be used under this authority, however, because the second five-year term for the site under the Corps' most recent site selection expired on February 18, 2004. (The site can still be used if approved under CWA section 404 for non-federal projects involving less than 25,000 cubic yards of dredged material.) Meanwhile, the first five-year Corps site selection for the WLIS site has expired and use of the site under a Corps site selection will be limited to five years from the date of the next such selection.
The Ocean Dumping Regulations prescribe general and specific criteria at 40 CFR 228.5 and 228.6, respectively, to guide the selection of disposal sites for final designation. EPA regulations at 40 CFR 228.4(e)(1) provide, among other things, that EPA will designate any disposal sites by promulgation in 40 CFR part 228. Ocean dumping sites designated on a final basis are promulgated at 40 CFR 228.15. Section 102(c) of the MPRSA and 40 CFR 228.3 also establish requirements for EPA's ongoing management and monitoring, in conjunction with the USACE, of the disposal sites designated by EPA to ensure that unacceptable, adverse environmental impacts do not occur. Examples of such management and monitoring include the following: regulating the times, rates, and methods of disposal, as well as the quantities and types of material that may be disposed; conducting pre- and post-disposal monitoring of sites; conducting disposal site evaluation and designation studies; and recommending modification of site use and/or designation conditions and restrictions. See also 40 CFR 228.7, 228.8, 228.9.
Finally, a disposal site designation by EPA does not actually authorize any dredged material to be disposed of at that site. It only makes use of that site available as a possible management option if various other conditions are met first. Authorization to use the site for dredged material disposal must be provided by the Corps under MPRSA section 103(b), subject to EPA review, and such disposal at the site can only be authorized if: (1) It is determined that there is a need for open-water disposal for that project (i.e., that there are no practicable alternatives to such disposal that would cause less harm to the environment); and (2) the dredged material satisfies the applicable environmental impact criteria specified in EPA's regulations at 40 CFR part 227. Furthermore, the authorization for disposal is also subject to review for compliance with other applicable legal requirements, including the ESA, the MSFCMA, the CWA (including any applicable state water quality standards), NEPA, and the CZMA.
EPA's evaluation of CLIS and WLIS pursuant to the applicable site evaluation criteria, and its compliance with site management and monitoring requirements, are described below in the Compliance with Statutory and Regulatory Requirements section.
2. National Environmental Policy Act (NEPA)
NEPA, 42 U.S.C. 4321, et seq., requires the public analysis of the potential environmental effects of proposed federal agency actions and reasonable alternative courses of action to ensure that these effects, and the differences in effects among the different alternatives, are understood in order to ensure high quality, informed decision-making and to facilitate avoiding or minimizing any adverse effects of proposed actions, and to help restore and enhance environmental quality. See 40 CFR 6.100(a) and 1500.1(c) and 1500.2(d)-(f). NEPA requires substantial public involvement throughout the decision-making process. See 40 CFR 6.400(a) and 40 CFR part 1503 and 1501.7, 1506.6.
Section 102(c) of NEPA, 42 U.S.C. 4321, et seq., requires federal agencies to prepare an EIS for major federal actions significantly affecting the quality of the human environment. An EIS should assess: (1) The environmental impact of the proposed action; (2) any adverse environmental effects that cannot be avoided should the proposal be implemented; (3) alternatives to the proposed action; (4) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity; and (5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented. The required content of an EIS is further described in regulations promulgated by the President's Council on Environmental Quality (CEQ). See 40 CFR part 1502.
EPA disposal site designation evaluations conducted by EPA under the MPRSA have been determined to be “functionally equivalent” to NEPA reviews, so that they are not subject to NEPA analysis requirements as a matter of law. Nevertheless, as a matter of policy, EPA voluntarily uses NEPA procedures when evaluating the potential designation of ocean dumping sites. See 63 FR 58045 (Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act Documents, October 29, 1998). While EPA voluntarily uses NEPA review procedures in conducting MPRSA disposal site designation evaluations, EPA also has explained that “[t]he voluntary preparation of these documents in no way legally subjects the Agency to NEPA's requirements” (63 FR 58046).
In this case, EPA prepared an EIS to evaluate the possibility of designating open-water disposal sites in the central and western regions of Long Island Sound. As part of the NEPA EIS process, federal agencies prepare a public record of decision (ROD) at the time of their decision on any action for which an FEIS has been prepared. In this case, this final rule will serve as EPA's ROD for the site designations. See 40 CFR 1505.2 and 1506.4 (the ROD may be integrated into any other agency document prepared in carrying out its action). EPA's use of NEPA procedures to evaluate this action is further described in the following section, Compliance with Statutory and Regulatory Requirements.
3. Coastal Zone Management Act (CZMA)
The CZMA, 16 U.S.C. 1451, et seq., authorizes states to establish coastal zone management programs to develop and enforce policies to protect their coastal resources and promote uses of those resources that are desired by the state. Sections 307(c)(1)(A) and (C) of the CZMA require federal agencies to provide relevant states with a determination that each federal agency activity, whether taking place within or outside the coastal zone, that affects any land or water use or natural resource of the state's coastal zone, will be carried out in a manner consistent to the maximum extent practicable with the enforceable policies of the state's approved coastal zone management program. EPA's compliance with the CZMA is described in the following section, Compliance with Statutory and Regulatory Requirements.
4. Endangered Species Act (ESA)
Under section 7(a)(2) of the Endangered Species Act, 16 U.S.C. 1536(a)(2), federal agencies are required to ensure that their actions are “not likely to jeopardize the continued existence of any endangered species or result in the destruction or adverse modification of habitat of such species which is determined * * * to be critical * * *.” Depending on the species involved, a federal agency is required to consult with either the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS) if the agency's action “may affect” an endangered or threatened species or its critical habitat (50 CFR 402.14(a)). EPA's compliance with the ESA is described in the following section, Compliance with Statutory and Regulatory Requirements.
5. Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)
The 1996 Sustainable Fisheries Act amendments to the MSFCMA, 16 U.S.C. 1801, et seq., require the designation of essential fish habitat (EFH) for federally managed species of fish and shellfish. Pursuant to section 305(b)(2) of the MSFCMA, federal agencies are required to consult with the NMFS regarding any action they authorize, fund, or undertake that may adversely affect EFH. An adverse effect has been defined by the Act as, “[a]ny impact which reduces the quality and/or quantity of EFH [and] may include direct (e.g., contamination or physical disruption), indirect (e.g., loss of prey, reduction in species' fecundity), site-specific or habitat-wide impacts, including individual, cumulative, or synergistic consequences of actions” (50 CFR 600.810(a)). EPA's compliance with the MSFCMA is described in the following section, Compliance with Statutory and Regulatory Requirements.
E. Compliance With Statutory and Regulatory Requirements Back to Top
1. Marine Protection, Research, and Sanctuaries Act (MPRSA)
EPA undertook its evaluation of whether to designate any dredged material disposal sites in the central and western portions of Long Island Sound pursuant to its authority under MPRSA section 102(c) in response to several factors. These factors include the following:
- The prohibition on further use of the CLIS disposal site pursuant to the Corps' site selection authority under MPRSA section 103(b);
- The five-year cap on any future use of the WLIS disposal site pursuant to the Corps' site selection authority under MPRSA section 103(b);
- The understanding that in the absence of an EPA-designated disposal site or sites, any necessary open-water disposal would either be stymied or the USACE would have to undertake additional short-term site selections, perhaps many of them, in the future;
- The clear Congressional preference expressed in MPRSA section 103(b) that any open-water disposal of dredged material take place at EPA-designated sites, if feasible; and
- EPA's policy view that it is generally environmentally preferable to concentrate any open-water disposal at sites that have been used historically and at fewer sites, see 40 CFR 228.5(e).
EPA's evaluation considered whether there was a need for any disposal site designations for long-term dredged material disposal, including an assessment of whether other dredged material management methods could reasonably be judged to obviate the need for such designations. Having concluded that there was a need for open-water disposal sites, EPA then assessed whether there were sites that would satisfy the applicable environmental criteria to support a site designation under MPRSA section 102(c).
The MPRSA and EPA regulations promulgated thereunder impose a number of requirements related to the designation of dredged material disposal sites. These include procedural requirements, specification of criteria for use in site evaluations, and the requirement that a Site Management and Monitoring Plan (SMMP) must be developed for all designated sites. As discussed below, EPA complied with each of these requirements in designating the CLIS and WLIS disposal sites.
a. Procedural Requirements
MPRSA sections 102(c) and 103(b) indicate that EPA may designate ocean disposal sites, including for dredged material. EPA regulations at 40 CFR 228.4(e) specify that dredged material disposal sites will be “designated by EPA promulgation in this [40 CFR] part 228 * * *.” EPA regulations at 40 CFR 228.6(b) direct that when an EIS is prepared under EPA policy in order to assess the proposed designation of one or more disposal sites, that EIS should include the results of an environmental evaluation of the proposed disposal site(s) and the Draft EIS (DEIS) should be presented to the public along with a proposed rule concerning the disposal site designations. According to 40 CFR 228.6(b), a Final EIS (FEIS) should be provided at the time of final rulemaking for the site designation.
EPA complied with all of these procedural requirements. The Agency prepared a thorough environmental evaluation of both the sites proposed for designation and other alternative sites and courses of action (other than designating open-water disposal sites). This evaluation was presented in a DEIS (and related documents) and a proposed rule for promulgation of the disposal sites. EPA published the proposed rule (68 FR 53687) and a notice of availability of the DEIS (68 FR 53730) for public review and comment in September 2003. In addition, EPA went beyond the requirements of 40 CFR 228.6(b) by publishing a FEIS for public review in April 2004, more than a year before issuance of this final rule, thus giving the public an additional opportunity to comment on the proposed site designations, and giving EPA further opportunity to consider public input, before the final rulemaking for the site designations. By this final rule, EPA is now completing the designation of these disposal sites by promulgation in 40 CFR part 228.
Finally, MPRSA sections 102(c)(3) and (4) dictate that EPA must, in conjunction with the USACE, develop a site management plan for each dredged material disposal site it proposes to designate. MPRSA section 102(c)(3) also states that in the course of developing such management plans, EPA and the Corps must provide an opportunity for public comment. EPA and the Corps also met this obligation by publishing for public review and comment Draft SMMPs for both the CLIS and WLIS sites. The Draft SMMPs were published together with the Draft EIS (as Appendices J-1 and J-2, respectively) and the proposed rule in September 2003. After considering public comments regarding the SMMPs, EPA and the Corps published the Final SMMPs for the two disposal sites in April 2004 as Appendices J-1 and J-2 of the FEIS.
b. Disposal Site Selection Criteria
EPA regulations under the MPRSA identify five general criteria and 11 specific criteria for use in evaluating locations for the potential designation of dredged material disposal sites. See 40 CFR 228.4(e), 228.5 and 228.6. The evaluation of the CLIS and WLIS disposal sites with respect to the five general and 11 specific criteria is discussed in detail in the FEIS and supporting documents and is summarized below.
General Criteria (40 CFR 228.5)
As described in the FEIS, and summarized below, EPA has determined that the CLIS and WLIS disposal sites satisfy the five general criteria specified in 40 CFR 228.5. This is discussed in Chapter 5 and summarized in Table 5-13, “Summary of Impacts at the Alternative Sites,” of the FEIS.
1. Sites must be selected to minimize interference with other activities in the marine environment, particularly avoiding areas of existing fisheries or shellfisheries, and regions of heavy commercial or recreational navigation (40 CFR 228.5(a)).
EPA's evaluation demonstrated that both the CLIS and WLIS disposal sites would cause minimal interference with the aquatic activities identified in the criterion. The sites were selected because they are not located in shipping lanes or other major navigation areas and are expected to cause minimal interference with fisheries, shellfisheries, and regions of commercial or recreational navigation. EPA used Geographic Information System (GIS) software to overlay the locations of various uses and natural resources of the marine environment on the disposal site locations and surrounding areas (including their bathymetry). Analysis of this data indicated that use of each site would have minimal potential for interfering with other existing or ongoing uses of the marine environment in and around the site locations, including lobstering or fishing activities. Furthermore, the locations of the two sites should minimize any interference with navigation since they lie outside areas of heavy commercial or recreational navigation. In addition, both the CLIS and WLIS sites have been used for dredged material disposal for many years and their use has not significantly interfered with the uses identified in the criterion, and mariners in the area are accustomed to use of the sites. Finally, time-of-year restrictions (also known as “environmental windows”) imposed in order to protect fishery resources will typically limit dredged material disposal activities to the months of October through April, thus further minimizing any possibility of interference with the various activities specified in the criterion.
2. Sites must be situated such that temporary perturbations to water quality or other environmental conditions during initial mixing caused by disposal operations would be reduced to normal ambient levels or to undetectable contaminant concentrations or effects before reaching any beach, shoreline, marine sanctuary, or known geographically limited fishery or shellfishery (40 CFR 228.5(b)).
EPA's analysis concluded that both the CLIS and WLIS sites satisfy this criterion. First, both sites are significant distances from any beach, shoreline, marine sanctuary (in fact, there are no federally-designated marine sanctuaries designated in Long Island Sound), or known geographically limited fishery or shellfishery. Second, the sites will be used only for the disposal of dredged material determined to be suitable for open-water disposal by application of the MPRSA ocean dumping criteria. See 40 CFR part 227. These criteria include provisions related to water quality and accounting for initial mixing. See 40 CFR 227.4, 227.5(d), 227.6(b) and (c), 227.13(c), 227.27, and 227.29. Data evaluated during development of the EIS, including data from monitoring conducted during and after past disposal activities, indicates that any temporary perturbations in water quality or other environmental conditions at the site during initial mixing from disposal operations will be limited to the immediate area of the site and will neither cause any significant environmental degradation nor reach any beach, shoreline, marine sanctuary, or other important natural resource area.
3. If site designation studies show that any interim disposal sites do not meet the site selection criteria, use of such sites shall be terminated as soon as an alternate site can be designated (40 CFR 228.5(c)).
There are no interim sites in central and western Long Island Sound as defined under the Ocean Dumping Regulations (40 CFR 228.14). Neither the CLIS nor WLIS sites have ever been subject to an interim site designation by EPA. Therefore, this criterion is not applicable to the present disposal site designations. While the CLIS site has been used for dredged material disposal for many decades, it has never been an interim designated site. Prior to the 1980 Ambro Amendment, the MPRSA did not apply to Long Island Sound, and disposal was regulated under the Clean Water Act and/or other applicable authorities. Since the Ambro Amendment, both the CLIS and WLIS disposal sites have been used pursuant to the Corps' site selection authority under MPRSA section 103(b) for federal projects and large private projects (i.e., those involving more than 25,000 cubic yards of material). Both sites also have been used for smaller private projects under CWA section 404 authority. Furthermore, EPA's evaluation concludes that both the CLIS and WLIS sites satisfy the applicable site selection criteria. Therefore, even if this criterion applied, the CLIS and WLIS sites would satisfy it.
4. 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)).
EPA has determined, based on the information presented in the FEIS, that the CLIS and WLIS sites are limited in size 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. The combined size of the two sites is approximately 3.96 nmi 2, which is just half of one-percent of the 675 square miles that comprise the entire central and western Long Island Sound regions that comprised the study area for the EIS. As discussed in the FEIS, both sites are located in depositional areas, meaning the material placed in them will tend to stay there. As a result, any short-term impacts will be localized and this, together with other regulatory requirements (e.g., application of sediment testing and MPRSA criteria), will facilitate control of any such impacts. The information presented in the FEIS indicates that historical disposal at these sites over many years has neither resulted in significant long-term adverse environmental effects nor had any significant effect outside the sites themselves.
Furthermore, due to their past use for dredged material disposal, these sites have been monitored for many years under the Corps' Disposal Area Monitoring System (DAMOS). Thus, experience indicates that the site configurations will enable effective short-term and long-term monitoring. In addition, as described above in the Disposal Site Descriptions section, the existing site boundaries of the CLIS site have been reconfigured to include two historical disposal mounds outside of the existing boundary so that they could be managed and monitored along with the rest of the site. As previously described, the WLIS site also has been reconfigured from its historical boundaries by shifting the entire site to the northwest to exclude a rapidly shoaling area within those prior site boundaries. Thus, EPA developed the site configurations in conjunction with, and in response to, the substance of the site evaluations. The sites are identified by specific coordinates spelled out in the regulations promulgated by this rulemaking, and the use of precision navigation equipment in both dredged material disposal operations and monitoring efforts will enable accurate disposal operations and contribute to effective management and monitoring of the sites. Detailed plans for the management and monitoring of the two sites are described in the SMMPs (Appendix J of the FEIS).
5. 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)).
EPA evaluated sites beyond the edge of the continental shelf as well as historical disposal sites in Long Island Sound as part of the alternatives analysis conducted for the EIS. This evaluation determined that the long distances and travel times between the dredging locations in central and western Long Island Sound and the continental shelf (e.g., 140 miles from Mamaroneck Harbor in Westchester County, NY) posed significant environmental, operational, safety, and financial concerns, rendering such options unreasonable. Environmental concerns include increased risk of encountering endangered species during transit, increased fuel consumption and air emissions, and greater potential for accidents in transit that could lead to dredged material being spilled in unintended areas. As described in the Disposal Site Descriptions section, the CLIS and WLIS disposal sites both encompass the footprint of historically used sites. Long-term monitoring of these sites has shown minimal adverse impacts to the adjacent marine environment and rapid recovery of the benthic community in the disposal mounds. While there are also other historically used disposal sites in the Sound, the analysis in the FEIS concluded that the CLIS and WLIS sites were the preferable locations. Thus, the designation of the CLIS and WLIS disposal sites is consistent with this criterion.
Specific Criteria (40 CFR 228.6)
In addition to the five general criteria discussed above, 40 CFR 228.6(a) lists eleven specific factors to be used in evaluating the impact of the use of the site(s) for disposal under the MPRSA. Compliance with the criteria is described in detail in Chapter 5 and summarized in Table 5-13, “Summary of Impacts at the Alternative Sites,” of the FEIS, and is summarized below.
1. Geographical Position, Depth of Water, Bottom Topography and Distance From Coast (40 CFR 228.6(a)(1))
Based on analyses described in the FEIS, EPA has concluded that the geographical position (i.e., location), water depth, bottom topography (i.e., bathymetry), and distance from coastlines of the two sites will facilitate containment of dredged material within site boundaries, and reduce the likelihood of material being transported to the adjacent sea floor or any areas of special environmental concern. As described in the preceding Disposal Sites Description section and above regarding compliance with general criteria 3 and 4 (40 CFR 2285(c) and (d)), both sites are located far enough from shore, are deep enough, and have appropriate bathymetry to prevent adverse effects to the marine environment and coastlines. The CLIS site is located 5.6 nmi south of South End Point near East Haven, Connecticut, and more than ten nmi north of Shoreham Beach, New York, in water depths ranging from 56 to 77 feet (17 to 23.5 meters). The WLIS site is located 2.5 nmi south of Long Neck Point near Noroton, Connecticut, and two nmi north of Lloyd Point, New York, in water depths of 79 to 118 feet (24 to 36 meters). As discussed in the FEIS, long-term monitoring of disposal sites in Long Island Sound found that creating mounds above a depth of 46 feet (14 meters) can result in material being removed from the mounds by currents (FEIS, p. 3-17). Both sites are of a sufficient depth to allow the disposal of the amount of material that is projected over the 20-year planning horizon without exceeding this depth threshold. As was also discussed in the FEIS, both sites are located in depositional areas, meaning the material placed in them will tend to stay there. As a result, any short-term impacts will be localized and this, together with other regulatory requirements described elsewhere in this document, will facilitate control of any such impacts.
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))
EPA considered the proposed CLIS and WLIS disposal sites in relation to breeding, spawning, nursery, feeding, or passage areas for adult and juvenile phases (i.e., life stages) of living resources in Long Island Sound. From this analysis, EPA concluded that, while disposal of suitable dredged material at the CLIS and WLIS sites would cause some short-term, localized adverse effects, overall it would not cause unacceptable or unreasonable adverse effects to the habitat functions and living resources specified in the above criterion.The combined size of the two sites is approximately 3.96 nmi2, which is just half of one-percent of the 675 square miles that comprise the entire central and western Long Island Sound regions that comprised the study area for the EIS.
Generally, there are three primary ways that dredged material disposal can adversely affect marine resources. First, disposal can cause physical impacts by injuring or burying less mobile fish, shellfish, and benthic organisms, as well as their eggs and larvae. Second, tug and barge traffic transporting the dredged material to a disposal site may collide or otherwise interfere with marine mammals and reptiles. Third, contaminants in the dredged material may bioaccumulate through the food chain. However, EPA and the other federal and state agencies involved with regulating dredging and dredged material disposal have adopted management techniques that greatly reduce the potential for these impacts to occur.
One such technique is the use of environmental windows, or time-of-year restrictions, for both dredging and dredged material disposal. This type of restriction has been a standard practice for more than a decade in Long Island Sound, and New England generally, and is incorporated in Corps permits or authorizations in response to consultation with federal and state natural resource agencies (e.g., NMFS). Dredged material disposal in Long Island Sound is generally limited to the period between October 1 and April 30, but dredging windows are often shorter depending on the location of specific dredging projects in relation to certain fish and shellfish species. For example, dredging in nearshore areas where winter flounder spawning occurs is generally prohibited between February 1-April 1, dredging that may interfere with anadromous fish runs is generally prohibited between April 1-May 15, and dredging that may adversely affect shellfish is prohibited between June 1-September 30. These dredging windows, in effect, serve to further restrict periods during which dredged material would be disposed.
Another benefit of using environmental windows is that they reduce the likelihood of dredged material disposal activities interfering with marine mammals and reptiles. While there are several species, such as harbor porpoises, long-finned pilot whales, seals, and sea turtles, that either inhabit or migrate through Long Island Sound, most of them either leave the Sound during the winter months for warmer waters to the south or are less active and remain near the shore. There also are many other mobile species of fish (e.g., striped bass, bluefish, scup) and invertebrates (e.g., squid) that leave the Sound during the winter for either deeper water or warmer waters to the south, thus avoiding the time of year when most dredging and dredged material disposal occurs. The use of environmental windows has been refined over time and is now considered an effective management tool to minimize impacts to marine resources.
There will be some localized impacts to fish, shellfish, and benthic organisms, such as clams and worms, that are present at a disposal site (or in the water column directly above the site) during a disposal event. The sediment plume may entrain and smother some fish in the water column, and may bury some fish, shellfish, and other marine organisms on the sea floor. There usually is a short-term loss of forage habitat in the immediate disposal area, but the DAMOS program has documented the recolonization of disposal mounds by benthic infauna within 1-3 years after disposal.
To further reduce potential environmental impacts associated with dredged material disposal, the dredged material from each proposed dredging project will be subjected to the MPRSA sediment testing requirements set forth at 40 CFR part 227 to determine its suitability for open-water disposal. Suitability for open-water disposal is determined by testing the proposed dredged material for toxicity and bioaccumulation and by quantifying the risk to human health from consuming marine organisms that are exposed to dredged material and its associated contaminants using a risk assessment model. If it is determined that the sediment is unsuitable for open-water disposal—that is it may unreasonably degrade or endanger human health or the marine environment—it cannot be disposed at disposal sites designated under the MPRSA. See 40 CFR 227.6.
EPA complied with the ESA by consulting with and receiving concurrence from the NMFS and USFWS that the designation of WLIS and CLIS was not likely to adversely affect federally listed species under its jurisdiction. Additionally, EPA consulted with NMFS under the MSFCMA on potential impacts to essential fish habitat (EFH). NMFS determined that the use of environmental windows and the stringent testing requirements were sufficient steps to minimize impacts to EFH and did not offer any additional conservation recommendations. Further details on these consultations are provided in the FEIS and the section below describing compliance with the ESA and MSFCMA.
EPA recognizes that dredged material disposal causes some short-term, localized adverse effects to marine organisms in the immediate vicinity of each disposal event. But because disposal is restricted to two small sites (see above regarding compliance with general criteria 5 (40 CFR 2285(e)) and to only several months of the year, EPA concludes that designating WLIS and CLIS will not cause unacceptable or unreasonable adverse impacts to breeding, spawning, nursery, feeding, or passage areas of living resources in adult or juvenile phases.
3. Location in Relation to Beaches and Other Amenity Areas (40 CFR 228.6(a)(3))
EPA's analysis concluded that both the CLIS and WLIS sites satisfy this criterion. Both sites are far enough away from beaches, parks, wildlife refuges, and other areas of special concern to prevent adverse impacts to these amenities and, as previously noted, there are no marine sanctuaries in Long Island Sound. As previously described, the CLIS and WLIS disposal sites are 5.6 nmi and two nmi from the nearest shore, respectively. Therefore, the closest beaches, parks, wildlife refuges, or other areas of special concern are at least two nmi from either of the two disposal sites. Based on modeling results that are presented in section 5.5.3 of the FEIS, and past monitoring of actual disposal activities, this distance is beyond any expected transport of dredged material due to tidal motion or currents. As noted above, any temporary perturbations in water quality or other environmental conditions at the site during initial mixing from disposal operations will be limited to the immediate area of the site and will not reach any beach, parks, wildlife refuges, or other areas of special concern.
Thus, EPA does not anticipate that the continued use of the CLIS and WLIS disposal sites will cause any adverse impacts to beaches or other amenity areas.
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))
The typical composition of dredged material to be disposed at the sites is expected to range from predominantly “clay-silt” to “mostly sand.” This expectation is based on data from historical dredging projects from the central and western regions of Long Island Sound. For federal dredging projects and private projects generating more 25,000 cubic yards of dredged material, EPA and the USACE will conduct suitability determinations following applicable criteria for testing and evaluating dredged material under 40 CFR part 227 and further guidance in the “Regional Implementation Manual for the Evaluation of Dredged Material Proposed for Disposal in New England Waters' (EPA, 2004), before authorizing disposal under the MPRSA. Private dredging projects generating up to 25,000 cubic yards will continue to be regulated under CWA section 404. The requirements under the MPRSA and the CWA are discussed in detail in the EIS. The CLIS and WLIS sites would receive dredged material that is transported by either government or private contractor hopper dredges or oceangoing bottom-dump barges towed by tugboat. Both types of equipment release the material at or very near the surface, which is the standard operating procedure for this activity. The disposal of this material will occur at specific coordinates marked by buoys and will be placed so as to concentrate material from each disposal project. This concentrated placement is expected to help minimize bottom impacts to benthic organisms. In addition, there are no plans to pack or package dredged material prior to disposal.
Furthermore, it should be emphasized that the CLIS and WLIS sites are only being designated for the disposal of dredged material; disposal of other types of material will not be allowed at these sites. It also should be noted that the disposal of certain other types of material is expressly prohibited by the MPRSA and EPA regulations (e.g., industrial waste, sewage sludge, chemical warfare agents, inadequately characterized materials) (33 U.S.C. 1414b; 40 CFR 227.5). For all of these reasons, no significant adverse impacts are expected to be associated with the types and quantities of dredged material that may be disposed at the sites.
5. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5))
Monitoring and surveillance are expected to be feasible at both sites. Both sites are readily accessible for bathymetric and side-scan sonar surveys and have been successfully monitored by the Corps over the past 20 years under the DAMOS program. Upon designation of the sites, monitoring will continue under the DAMOS program in accordance with the most current approved Site Management and Monitoring Plan (SMMP) for each site. A Draft SMMP for each site was issued for public comment in conjunction with the DEIS and was incorporated as Appendix J to the DEIS, while Final SMMPs were then completed and incorporated as Appendix J to the FEIS. The SMMPs may be subject to periodic revisions based on the results of site monitoring and other new information. Any such revisions will be closely coordinated with other federal and state resource management agencies and other stakeholders during the review and approval process, and will become final only when approved by EPA in conjunction with the USACE. See 33 U.S.C. 1413 (c)(3).
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))
Although the interactions of bathymetry, wind-generated waves, and river and ocean currents in Long Island Sound are complex, the CLIS and WLIS sites are located in areas that are generally calm except during storms, when dredging and dredged material disposal would not be occurring anyway. Past monitoring of disposal activity at these two sites has revealed minimal drift of sediment out of the disposal site as it passed through the water column, and disposal site monitoring has confirmed that peak wave-induced bottom current velocities are not sufficient to cause significant erosion of dredged material placed at either of the two sites. Monitoring has indicated that the CLIS and WLIS sites are depositional locations that collect, rather than disperse, sediment. For these reasons, EPA has determined that the dispersal, horizontal transport, and vertical mixing characteristics, as well as the current velocities and directions at the CLIS and WLIS sites are appropriate to support their designation as dredged material disposal sites.
7. Existence and Effects of Current and Previous Discharges and Dumping in the Area (Including Cumulative Effects) (40 CFR 228.6(a)(7))
As previously described in the Disposal Sites Descriptions section, the CLIS site has received close to 14 million cubic yards of dredged material since 1941, and predecessors to the CLIS site in the same general vicinity received dredged material since the late 1800s (with no reliable records of volumes disposed). The WLIS site has been used for dredged material disposal since 1982, receiving 1.7 million cubic yards since then. Prior to 1982, sites in the immediate vicinity of WLIS, including the Eaton's Neck, Stamford, and Norwalk historical disposal sites, served the dredging needs of the western Sound.
Until the passage of the CWA in 1972, dredged material disposal was not a heavily regulated activity. Since 1972, open-water disposal in Long Island Sound has been subject to the sediment testing and alternatives analysis provisions of section 404 of the CWA. With passage of the first Ambro Amendment in 1980, dredged material disposal from all federal projects and non-federal projects generating more than 25,000 cubic yards of material became subject to the requirements of both CWA section 404 and the MPRSA. The result of these increasingly stringent regulatory requirements for dredged material disposal is that there has been a steady, measurable improvement in the quality of material that has been placed at the CLIS and WLIS disposal site over the past 33 years.
The CLIS and WLIS disposal sites have both been used on a consistent basis since the early 1980s pursuant to the Corps' short-term site selection authority under section 103(b) of the MPRSA (33 U.S.C. 1413(b)). Since then, disposal operations at these sites have been carefully managed and the material disposed there has been monitored. Past use of these sites generally makes them preferable to more pristine sites that have either not been used or have been used in the more distant past. See 40 CFR 228.5(e). Beyond this, however, EPA's evaluation of data and modeling results indicates that these past disposal operations have not resulted in unacceptable or unreasonable environmental degradation, and that there should be no such adverse effects in the future from the projected use of the CLIS and WLIS disposal sites. As part of this conclusion, discussed in detail in the FEIS, EPA found that there should be no significant adverse cumulative environmental effects from continuing to use these sites on a long-term basis for dredged material disposal in compliance with all applicable regulatory requirements regarding sediment quality and site usage.
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))
In evaluating whether disposal activity at the sites could interfere with shipping, fishing, recreation, mineral extraction, desalination, fish or shellfish culture, areas of scientific importance and other legitimate uses of the ocean, EPA considered both the effects of placing dredged material on the bottom of the Sound at the CLIS and WLIS sites and any effects from vessel traffic associated with transporting the dredged material to the disposal sites. From this evaluation, EPA concluded there would be no unacceptable or unreasonable adverse effects on the considerations noted in this criterion. Some of the factors listed in this criterion have already been discussed above due to its overlap with aspects of certain other criteria. Nevertheless, EPA will address each point below.
The disposal sites are not located in shipping lanes, and the vessel traffic generated by disposal activity is expected to be similar to that which has occurred over the past 20 years without interfering with other shipping activity. Moreover, research by EPA and the USACE concluded that after disposal at the sites, resulting water depths will be sufficient to permit navigation in the area without interference. (And by providing an open-water disposal alternative for use in the absence of environmentally preferable practicable alternatives, the sites are likely to facilitate navigation in many of the harbors, bays, rivers and channels around the Sound.) A U.S. Coast Guard (USCG) lightering area currently overlaps the northeast corner of the CLIS site, which could have resulted in anchors disturbing disposal mounds and causing sediment resuspension, but the USCG has agreed to shift the designated lightering area boundary to ensure that existing mounds and future disposed dredged material will not be disturbed. This shift is also not expected to have any adverse effect on local navigation. Moreover, as discussed above, dredged material disposal at the site will only occur in a limited number of months during each year to due to environmental windows that restrict when dredging and related disposal may occur.
EPA carefully evaluated the potential effects on commercial and recreational fishing for both finfish and shellfish (including lobster) of designating the CLIS and WLIS sites for dredged material disposal and concluded that there would be no unreasonable or unacceptable adverse effects. As discussed above in relation to other site evaluation criteria, dredged material disposal will only have incidental, insignificant effects on organisms in the disposal sites and no appreciable effects beyond the sites. Indeed, since past dredged material disposal has been determined to have no significant adverse effects on fishing, the similar projected levels of future disposal activities at the designated sites also are not expected to have any significant adverse effects. The following are the four main reasons why EPA came to the conclusion of no unacceptable adverse effects.
First, as discussed above, EPA has concluded that any contaminants in material permitted for disposal—having satisfied the dredged material criteria in the regulations that restrict any toxicity and bioaccumulation—will not cause any significant adverse effects on fish, shellfish, or other aquatic organisms. Furthermore, because both the CLIS and WLIS sites are depositional, dredged material disposed at the sites is expected to remain there. Second, as also discussed above, the disposal sites do not encompass any especially important, sensitive, or limited habitat for the Sound's fish and shellfish, such as key spawning or nursery habitat for species of finfish. Furthermore, while some commenters in the EIS process expressed the concern that dredged material disposal has caused or contributed to the recent “die-off” of lobster in the western region of the Sound, or recent increases in the incidence of shell disease in the eastern portion of the Sound, EPA explained in detail in the EIS and Responses to Comments why dredged material disposal is not regarded to have caused or contributed significantly to either problem.
Third, while EPA found that a small number of demersal fish (e.g., winter flounder), shellfish (e.g., clams and lobsters), benthic organisms (e.g., worms), and zooplankton and phytoplankton could be lost due to the physical effects of disposal (e.g., burial of organisms on the bottom by dredged material and entrainment of plankton in the water column by dredged material upon its release from a disposal barge), EPA also determined that these minor adverse effects would be neither unreasonable nor unacceptable. This determination was based on EPA's conclusion that the numbers of organisms potentially affected represent only a minuscule percentage of those in the central and western regions of the Sound, and the Corps' disposal site monitoring showing the rapid recovery of the benthic community in an area covered with dredged material. In addition, any physical effects will be limited by the relatively few months in which disposal is permitted by the “environmental window” restrictions.
Fourth, EPA has determined that vessel traffic associated with dredged material disposal will not have any unreasonable or unacceptable adverse effects on fishing. As explained above, environmental window restrictions will limit any disposal to the period between October 1 and April 30, and often fewer months depending on species-specific dredging windows for each dredging project, each year. Moreover, there is generally far less vessel traffic in the months when disposal would occur due to the seasonal nature of recreational and commercial boating.
There currently are no mineral extraction activities or desalinization facilities in the central and western Long Island Sound region with which disposal activity could potentially interfere. Energy transmission pipelines and cables are located near the sites, but none are within their boundaries. While at the time of this evaluation only three pipelines were in place, development of several new pipelines is anticipated in the future and will be prohibited from traversing the sites.
No fish farming currently takes place in Long Island Sound, and the only form of shellfish culture in the area, oyster production, occurs in nearshore locations far enough away from the two designated disposal sites that it should not be impacted in any manner by this action. Finally, neither site is in an area of special scientific importance; in fact, areas with such characteristics were screened out very early in the alternatives screening process.
Accordingly, depositing dredged material at the sites will not interfere with any of the activities described in this criterion or other legitimate uses of Long Island Sound.
9. The Existing Water Quality and Ecology of the Sites as Determined by Available Data or by Trend Assessment or Baseline Surveys (40 CFR 228.6(a)(9))
EPA's analysis of existing water quality and ecological conditions at the site in light of available data, trend assessments and baseline surveys indicates that use of the designated disposal sites will cause no unacceptable or unreasonable adverse environmental effects. Considerations related to water quality and various ecological factors (e.g., sediment quality, benthic organisms, fish and shellfish) have already been discussed above in relation to other site selection criteria, and are discussed in detail in the FEIS and supporting documents. In considering this criterion, EPA took into account existing water quality and sediment quality data collected at the disposal sites, including from the Corps' DAMOS site monitoring program. Furthermore, EPA and the Corps have, following solicitation of public comments, prepared Final SMMPs for both the CLIS and WLIS sites to guide future monitoring of site conditions.
10. Potentiality for the Development or Recruitment of Nuisance Species in the Disposal Sites(40 CFR 228.6(a)(10))
Monitoring at disposal sites in Long Island Sound over the past 20 years has shown no recruitment of nuisance species capable of harming human health or the marine ecosystem and no such adverse effects are expected to occur at the CLIS and WLIS sites in the future. EPA and the USACE will continue to monitor the sites under the SMMPs, which include a “management focus” on “changes in composition in numbers of pelagic, demersal, or benthic biota at or near the disposal sites” (see section 6.1.5 of the SMMPs, Appendix J of the FEIS).
11. Existence at or in Close Proximity to the Sites of Any Significant Natural or Cultural Feature of Historical Importance (40 CFR 228.6(a)(11))
Due to the location of the two sites in the waters of central and western Long Island Sound, the cultural resources that have the greatest potential for being impacted are shipwrecks. A review of the current NOAA and Warren C. Reiss Marine Shipwrecks databases revealed a total of 39 shipwrecks throughout the Sound, but none are located within the disposal site boundaries, a fact confirmed by the Connecticut State Historic Preservation Office. While none of the known shipwrecks of historic significance are located within the sites, the central and western regions of Long Island Sound are known to have at least 12 and four shipwrecks, respectively. It is possible that there are other as yet undiscovered shipwrecks in the area. As additional side-scan sonar surveys are conducted at the disposal sites in the future under the SMMPs, and if potential shipwrecks are identified, EPA will take appropriate action in cooperation with federal and state historic preservation officials in response to any significant cultural resources.
The Connecticut State Historic Preservation Office also determined that there are no known aboriginal artifacts at the CLIS and WLIS disposal sites. Two of the region's Indian tribes (the Eastern Pequot Indians of Connecticut and Narragansett Indian Tribe) participated as cooperating agencies during the development of the EIS, and neither of them identified any natural nor cultural features of historical significance at either site.
c. Disposal Site Management (40 CFR 228.3, 228.7, 228.8 and 228.9)
The CLIS and WLIS disposal sites will be subject to specific management requirements to ensure that unacceptable adverse environmental impacts do not occur. Examples of these requirements include: Restricting the use of the sites to the disposal of dredged material that has been determined to be suitable for ocean disposal following MPRSA and/or CWA requirements in accordance with the provisions of MPRSA section 106(f); monitoring the disposal sites and their associated reference sites, which are not used for dredged material disposal, to assess potential impacts to the marine environment by providing a point of comparison to an area unaffected by dredged material disposal; and retaining the right to limit or close these sites to further disposal activity if monitoring or other information reveals evidence of unacceptable adverse impacts to the marine environment. In addition, although not technically a site management requirement, disposal activity at the sites will generally be limited to the period between October 1 and April 30, but often less depending on dredging windows to protect certain species, as described above. EPA and the Corps have managed and monitored dredged material disposal activities at the CLIS and WLIS sites since the early 1980s. Site monitoring has been conducted under the Corps' DAMOS disposal site monitoring program.
In accordance with the requirements of MPRSA section 102(c) and 40 CFR 228.3, EPA and the Corps developed Site Management and Monitoring Plans (SMMPs) for both the CLIS and WLIS sites. Draft SMMPs for both sites were issued for public review and comment in conjunction with the DEIS and incorporated in the DEIS as Appendix J. After considering public comment, the agencies issued the Final SMMPs in conjunction with the FEIS and incorporated them in the FEIS as Appendix J. The SMMPs describe in detail the specific management and monitoring requirements for both sites. With respect to site monitoring, the SMMPs build on the Corps' existing DAMOS monitoring program, which will continue to provide the backbone of the site monitoring effort.
2. National Environmental Policy Act (NEPA)
Consistent with its voluntary NEPA policy, as described and referenced above, EPA has followed the NEPA process and undertaken NEPA analyses as part of its decision-making process for the disposal site designations. EPA published a Notice of Intent to prepare an EIS, held public meetings regarding the scope of issues to be addressed by the EIS, published a Draft EIS for public review and comment in September 2003, and published a Final EIS in March 2004, including responses to public comments on the Draft EIS. The FEIS, entitled, “Final Environmental Impact Statement for the Designation of Dredged Material Disposal Sites in Central and Western Long Island Sound, Connecticut and New York,” assesses and compares the effects, including the environmental effects, of designating dredged material disposal sites in central and western Long Island Sound, and of various alternative approaches to managing dredging needs, including the “no action” alternative (i.e., the alternative of not designating any open-water disposal sites). See 40 CFR 1502.14.
EPA is the agency authorized by the MPRSA to designate dredged material disposal sites and was responsible for the EIS. The U.S. Army Corps of Engineers (USACE, or Corps) was a cooperating agency in the development of the EIS, see 40 CFR. 1508.5, because of its knowledge concerning the region's dredging needs, its technical expertise in monitoring and assessing the environmental effects of dredging and dredged material disposal, its history in the regulation of dredged material disposal in Long Island Sound and elsewhere, and its legal role in regulating dredged material disposal and managing and monitoring disposal sites. See MPRSA sections 102(c) and 103 and 40 CFR part 225 and 40 CFR 228.4(e). The Corps also brought significant financial and human resources to bear on this large and complex project. To take advantage of expertise held by other entities, and to ensure compliance with all applicable legal requirements, EPA also worked in close coordination with other federal agencies, including NMFS and USFWS, state environmental and coastal zone management agencies, local governments, and Indian Tribal governments. The NMFS, Connecticut Department of Environmental Protection (CT DEP), New York Department of Environmental Conservation (NY DEC), Eastern Pequot Indians of Connecticut, and Narragansett Indian Tribe participated as “cooperating agencies” in preparation of the EIS.
Consistent with the public participation provisions of the NEPA regulations, EPA and the Corps conducted an extensive public involvement program throughout the development of the FEIS. The agencies formed a “working group” comprising stakeholders from the Long Island Sound region and held numerous public meetings and workshops to provide the public with information on the EIS process and the results of studies conducted in support of the EIS, and to give the public ample opportunity to provide input to the NEPA review effort. The following discussion summarizes the extensive public participation program conducted by EPA and the Corps; detailed descriptions are provided in Chapter 7 and Appendix A of the FEIS.
On June 3, 1999, EPA published a Notice of Intent in the Federal Register (64 FR 29865) and mailed the notice to approximately 7000 interested individuals and organizations registered in the Long Island Sound EIS mailing list. The notice stated EPA's intent to prepare an EIS to, “consider the potential designation of one or more dredged material disposal sites in Long Island Sound,” pursuant to MPRSA and CWA requirements. It further stated that the EIS would evaluate the four existing dredged material disposal sites that were active at the time (CLIS, WLIS, Cornfield Shoals, and New London), “as well as additional alternatives including other open-water disposal sites, other types of dredged material disposal and management, and the no-action alternative.” It also announced three public scoping meetings to be held later that month to explain the EIS process and solicit public input.
Accordingly, in June 1999, EPA and the USACE held three public scoping meetings in Connecticut and New York to: (1) To inform the public about the project; (2) explain the respective roles of EPA and the Corps and the other cooperating or coordinating federal, state and tribal agencies, and the public, and (3) request comments on the draft scope of work for the EIS and related studies (detailed in Appendix A of the FEIS). The scoping meetings also served to identify and record public views regarding issues and environmental considerations for potential examination and analysis in the EIS. A total of approximately 130 people attended the three public scoping meetings.
EPA and the Corps also conducted two series of public workshops in October 1999 and April 2000 in Connecticut and New York to discuss, and seek public input concerning, the development of the EIS. Topics covered at the workshops included: Identification of dredged material management alternatives; the process for screening and evaluating all the alternatives; and a review of existing data and data collection needs. A total of approximately 200 people attended the four public workshops.
In 2000, EPA and the Corps established a volunteer public “working group” comprising individuals representing marine industries, boaters, environmental groups, fishing interests, and local governments to provide guidance in the development of the EIS. Five working group meetings were held between July 2000 and November 2002; attendance at these meetings ranged from 27 to 44 individuals, including agency staff and contractors. Topics addressed by the working group sessions included: Potential environmental impacts to be assessed in the EIS; the results of field studies for lobster, fish, and benthic resources; fishing activities; upland disposal alternatives; dredging needs; economic analyses; and Geographic Information System (GIS) meta-databases.
Throughout the EIS development process, EPA and the Corps also met with other federal and state agencies to keep them apprized of progress on the project and to solicit input. Other agencies that participated regularly throughout the process include the NMFS, USFWS, CT DEP, NY DEC, and the New York Department of State (NY DOS). Ten interagency meetings and teleconferences were held between March 1999 and January 2003 to review progress and get feedback, and EPA and the Corps were in regular contact with representatives of these agencies throughout the EIS process.
As one of the first steps in the EIS process, EPA and the Corps, in cooperation with other federal and state agencies delineated a “Zone of Siting Feasibility” (ZSF). The ZSF is the geographic area from which reasonable and practicable open-water dredged material disposal site alternatives should be selected for evaluation. EPA's 1986 site designation guidance manual describes the factors that should be considered in delineating the ZSF, and recommends locating open-water disposal sites within an economically and operationally feasible radius from areas where dredging occurs. Other factors to be considered include navigational restrictions, political or other jurisdictional boundaries, distance to the edge of the continental shelf, the feasibility of surveillance and monitoring, and operation and transportation costs. Consistent with the guidance, in 1999, EPA, in cooperation with the other agencies, established the ZSF to include the entire Long Island Sound, from Throgs Neck at the western end to a line from Montauk Point to Block Island and a line from Block Island due north to the Rhode Island shoreline on the eastern end.
In March 2002, however, EPA published an Environmental News Notice announcing its intent to modify the ZSF and the scope of the EIS in order to assess the need for open-water disposal sites in Long Island Sound in two phases, with the first EIS to address the central and western regions of the Sound and a later Supplemental EIS to address the eastern region of the Sound. The ZSF boundaries were then modified to address only the central and western regions of Long Island Sound, with boundaries on the western end that extend from the confluence of the East and Harlem rivers at Hell's Gate and boundaries on the eastern end that extend from Mulberry Point in Guilford, CT, to Mattituck Point in Mattituck, NY.
The primary reasons for this modification in the scope of the EIS were: (1) The need to assess in a timely manner the appropriateness of maintaining continued use of a site in the central Long Island Sound region, given the February 2004 termination date for use of the CLIS disposal site pursuant to the Corps' site selection authority; (2) the geographical and environmental independence of the dredging and disposal needs, and alternatives for meeting those needs, of the central and western regions of Long Island Sound from those of eastern Long Island Sound; and (3) the fact that the change in scope would not preclude consideration of a comprehensive range of disposal alternatives, or otherwise predetermine the conclusions, for either the current EIS or for a future supplemental EIS to address eastern Long Island Sound.
EPA completed the “Draft Environmental Impact Statement for the Designation of Dredged Material Disposal Sites in Central and Western Long Island Sound, Connecticut and New York” (DEIS) in early September 2003. The DEIS identified the designation of CLIS and WLIS as long-term dredged material disposal sites under the MPRSA as EPA's preferred alternative. On September 12, 2003, EPA published in the Federal Register the proposed rule to designate the CLIS and WLIS disposal sites (68 FR 53687), together with a notice of availability of the DEIS and Draft SMMPs (68 FR 53730).
EPA provided for a 45-day public review and comment period, until October 27, 2003. EPA also posted these documents on the EPA New England web site, and mailed notices and copies of the DEIS and supporting material to a large mailing list of agencies, tribes, organizations, members of Congress, and individual members of the public. The Federal Register notice also announced that EPA would hold four public hearings—afternoon and evening sessions on September 30, 2003 in Stony Brook, NY, and on October 1, 2003 in Stamford, CT—to present information on the DEIS and solicit oral and written comments.
On October 9, 2003, in response to several requests from the public to extend the comment period and hold another public hearing, EPA published a notice extending the public comment period by 21 days, to November 17, 2003 (68 FR 58296), and held another public hearing on November 13, 2003 in Stamford, CT. On November 28, 2003 in response to requests from two members of Congress to extend the comment period and hold additional public hearings, EPA published a notice extending the public comment period by another 28 days, to December 15, 2003 (68 FR 66825). EPA also held another public hearing on December 10, 2003 in Stony Brook, NY.
The comment period closed on December 15, 2003. In addition to the oral testimony transcribed at the public hearings, EPA received written comments concerning the DEIS from approximately 350 individuals and organizations. EPA carefully considered the comments concerning the DEIS and responded to them in Appendix L of the FEIS. EPA also made certain revisions to its NEPA analysis, including improvements to the explanations of the purpose and need for the site designations and the alternatives analysis, based on the comments and information provided during the public comment period.
On April 9, 2004, EPA published a notice of availability of the FEIS in the Federal Register for a 30-day public review and comment period, ending on May 10, 2004 (69 FR 18898). EPA then published an amended notice extending the comment period to May 17, 2004 (69 FR 26818). EPA also issued a press release announcing the availability of the FEIS for public comment, posted the FEIS on the EPA New England web site, and mailed notices and/or copies of the FEIS and supporting material to a large mailing list of agencies, tribes, organizations, elected officials, and individual members of the public. EPA and the Corps also held two public information meetings, on May 4, 2004, in Islandia, NY, and May 5, 2004, in Stamford, CT, to explain how comments on the DEIS were addressed in the FEIS, and to answer questions about the decision. Although federal agencies are not required to solicit comment on a FEIS, EPA nonetheless did so to provide the public with further opportunity to comment on the decision and to ensure that the agency had every opportunity to consider the views of the public.
In response to requests from the public, EPA announced at the two public information meetings, and through a press release issued on May 4, 2004, that it was extending the comment period by 15 days, to June 1, 2004. EPA also sent letters to members of the New York and Connecticut congressional delegations informing them of the extension because of the interest in the timing of the comment period expressed by certain members of those delegations.
The comment period for the FEIS closed on June 1, 2004. EPA received written comments from approximately 2900 individuals and organizations. EPA has given careful consideration to these comments, as well as to concerns raised by the NY DOS and other agencies, in reaching a final decision to designate the proposed CLIS and WLIS dredged material disposal sites. EPA responded to comments it received concerning the FEIS in a publicly available “Response to Comments” document, as described below in the Public Comments section.
Environmental Impact Statement
The FEIS evaluates whether—and, if so, which—open-water dredged material disposal sites should be designated in the central and western regions of Long Island Sound. The FEIS describes the purpose and need for any such designations, evaluates several alternatives to this action, including the option of “no action” (i.e., no designation), and concludes that EPA designation of the CLIS and WLIS disposal sites under the MPRSA is the preferred alternative. The purpose of these designations is to provide long-term, open-water dredged material disposal sites as potential options for the future disposal of such material. The action is necessary because periodic dredging and dredged material disposal is unavoidably necessary to maintain safe navigation and marine commerce in Long Island Sound.
As previously noted, dredging in the central and western regions of Long Island Sound is projected to generate approximately 20 million cubic yards of dredged material over the next 20 years. EPA evaluated potential alternatives to open-water disposal in Long Island Sound but determined that they were insufficient to meet the regional dredging needs. In accordance with EPA regulations, see 40 CFR 227.16, use of alternatives to open-water disposal will be required when they provide a practicable, environmentally preferable option for the dredged material from any particular disposal project. EPA's designation of the CLIS and WLIS disposal sites, however, will provide open-water disposal sites as potential options for dredged material regulated under the MPRSA that has been tested and determined to be environmentally suitable for open-water disposal. Sediments found to be unsuitable for open-water disposal will be required to seek alternatives other than the CLIS and WLIS disposal sites.
EPA's initial screening of alternatives, which involved input from other federal and state agencies, local governments, and the public, led to the determination that the open-water disposal sites were the most environmentally sound, cost-effective, and operationally feasible options for the large amount of dredged material expected to be found suitable for open-water disposal over the 20-year planning horizon. EPA's analysis of alternatives for disposing of dredged material from navigation channels and harbors in central and western Long Island Sound evaluated several different potential alternatives, including open-water disposal sites, upland disposal, beneficial uses, sediment treatment, and the no-action alternative. From this analysis, EPA determined that open-water disposal sites, such as CLIS and WLIS, were the only alternatives that would provide sufficient practicable disposal capacity to meet long-term regional dredged material disposal needs. Again, this analysis also acknowledged that options for dredged material management other than open-water disposal might be identified and required for specific dredged material disposal projects in the future.
EPA also evaluated several open-water disposal site alternatives other than the CLIS and WLIS sites. This evaluation considered multiple factors, such as reasonable distances to transport dredged material, the potential for adverse effects on important natural resources, and other measures indicating incompatibility for use as a disposal site. Specific factors evaluated included the sensitivity and value of natural resources, geographically limited habitats, fisheries and shellfisheries, shipping and navigation lanes, physical and environmental parameters, and economic and operational feasibility. The analysis was carried out in a tiered process. The final tier involved a detailed analysis of the no-action alternative and the following four open-water alternative sites: CLIS, Milford, Bridgeport, and WLIS. Based on this analysis, the CLIS and WLIS sites were identified as the preferred alternatives for designation as open-water dredged material disposal sites. Management and monitoring strategies were developed for each site and are described in the SMMPs.
As stated above, for this action, this final rule and preamble also serve as EPA's record of decision under NEPA.
3. Coastal Zone Management Act (CZMA)
Based on the evaluations presented in the FEIS and supporting documents, and a review of the federally approved Connecticut and New York coastal zone programs and policies, EPA has determined that designation of the CLIS and WLIS sites for open-water dredged material disposal under the MPRSA is consistent with the enforceable policies of the coastal zone management programs of Connecticut and New York. EPA provided a written determination to this effect to each state. Thus, EPA has satisfied the CZMA's requirement that federal agencies provide relevant state(s) with a determination that each federal agency activity affecting the uses or natural resources of a state's coastal zone is consistent to the maximum extent practicable with the enforceable policies of the state's coastal zone management program.
In the EPA's view, there are several broad reasons why the disposal site designations are consistent with the applicable, enforceable policies of both states' coastal zone programs. First, the designations are not expected to cause any significant adverse impacts to the marine environment, coastal resources, or uses of the coastal zone. Indeed, EPA expects the designations to benefit uses involving navigation and berthing of vessels by facilitating needed dredging, and to benefit the environment by concentrating any open-water dredged material disposal at a small number of environmentally appropriate sites designated by EPA and subject to the previously described SMMPs. Second, designation of the sites does not actually authorize the disposal of any dredged material at the sites, since any proposal to dispose dredged material from a particular project at a designated site will only be allowed if: (a) The material satisfies the sediment quality requirements of the MPRSA and the CWA; (b) no practicable alternative method of management with less adverse environmental impact can be identified; and (c) the disposal complies with the site restrictions set forth in today's final rule. Third, the designated disposal sites will be managed and monitored pursuant to an SMMP and, if adverse impacts are identified, use of the sites will be modified to reduce or eliminate those impacts. Such modification could further restrict, or even terminate, use of the sites, if appropriate. See 40 CFR 228.3, 228.11.
On January 22, 2004, EPA submitted its coastal zone consistency determination to the CT DEP Office of Long Island Sound Programs, which administers the state's coastal zone management program. CT DEP concurred with EPA's determination in a letter dated April 5, 2004.
On March 8, 2004, EPA submitted a coastal zone consistency determination to the Division of Coastal Resources in the New York Department of State (NY DOS). On June 3, 2004, EPA received a letter from the NY DOS objecting to EPA's designation of the CLIS and WLIS disposal sites on the basis of its view that either EPA had provided insufficient information to support a CZMA consistency determination or, based on the information provided, the action was inconsistent with the enforceable policies of New York's Coastal Management Program (CMP).
EPA gave careful consideration to the issues raised by NY DOS and, after consultation with NY DOS and CT DEP, agreed to include certain additional Restrictions on the use of the sites that respond to the NY DOS's objections under the CZMA. These additional restrictions have enabled NY DOS to withdraw its CZMA objection to the disposal site designations, by letter dated May 13, 2005. EPA continues to hold the view that the site designations without the additional restrictions would still be consistent with the enforceable policies of New York's CMP. Nevertheless, EPA agrees that the additional site Restrictions place reasonable conditions on when the disposal sites may be used that provide enhanced assurance that the requirements of the CZMA, the MPRSA, and NEPA are met.
Moreover, adding these site use Restrictions represents a reasonable course of action lying between the alternatives of not designating any disposal sites at all, and designating sites for an indefinite term without the Restrictions. Both these alternatives, and others, were evaluated in the EIS supporting this action. Furthermore, the added site use Restrictions arise out of comments submitted by NY DOS and other parties and are consistent with EPA's environmental analysis and proposed action.
Summary of Restrictions
There is a total of fourteen paragraphs of Restrictions in the final rule. These Restrictions apply to all disposal subject to the MPRSA at the designated sites pursuant to this final rule. Thus, the Restrictions apply to all federal projects, and non-federal projects generating more than 25,000 cubic yards of dredged material. They do not apply to smaller non-federal projects since, as a matter of law, such projects are not subject to MPRSA requirements. Rather, any such disposal will be subject to whatever restrictions are imposed on a case by case basis through permits issued under Clean Water Act section 404.
The Restrictions apply both to all MPRSA permittees (i.e., private parties and governmental agencies other than the USACE), and to the USACE itself which disposes of dredged material pursuant to authorizations rather than permits. The USACE is “deemed” to be a permittee by today's rule so as to make it subject to the site Restrictions. The intention of the final rule is to apply the Restrictions to all persons who may seek to dispose of dredged material at the sites under MPRSA.
The Restrictions in paragraph 1 are the same as in the proposed rule. They limit disposal to dredged material from Long Island Sound and vicinity. Dredged material will be considered to have come from Long Island Sound and vicinity so long as it come from harbors and navigation channels either on or near Long Island Sound.
The Restrictions in paragraph 2 require compliance with the Site Management and Monitoring Plans (SMMPs) that have been developed for the two sites. These SMMPs are set out as Appendix J to the FEIS—they have not changed since the time that the FEIS was published. These SMMPs may be changed in the future, as provided in MPRSA section 102(c)(3). Proposed changes will be subject to public comment consistent with MPRSA section 102(c)(3). The EPA will utilize the section 102(c)(3) procedures, rather than proposing changes to this designation rule every time there is a change to an SMMP.
The Restrictions in paragraphs 3-14 were added by the EPA (in response to comments) in order to enhance compliance with the MPRSA, and to address the issues raised by New York under the CZMA. The EPA consulted with both affected states, and the conditions have been agreed to by both the NY DOS and the CT DEP. They are designed to support the common goal of New York and Connecticut to reduce or eliminate the disposal of dredged material in Long Island Sound. To support this goal, the Restrictions contemplate that there will be a regional dredged material management plan (DMMP) for Long Island Sound that will guide the use of dredged material for projects which occur after the DMMP is completed. DMMPs are comprehensive studies carried out by the USACE, in consultation with the EPA and the affected states, to help manage dredged material in a cost-effective and environmentally acceptable manner. The Governors of New York and Connecticut have jointly requested the USACE to develop a DMMP for Long Island Sound. Consistent with the two states' requests, today's rule contemplates that the DMMP for Long Island Sound will include the identification of alternatives to open-water disposal and the development of procedures and standards for the use of practicable alternatives to open-water disposal, so as to reduce wherever practicable the open-water disposal of dredged material. The DMMP also may contain recommendations regarding the use of the sites themselves. In addition, the final rule contemplates that a Regional Dredging Team will be established to identify practicable alternatives to open-water disposal and recommend their use to the extent practicable, for projects proposed while the DMMP is being prepared (other than three already permitted and authorized projects).
In order to ensure that long-term disposal does not occur at the sites pursuant to today's designation absent restrictions to be developed by the DMMP, the final rule specifies that the use of the sites must be suspended or terminated under certain circumstances. First, paragraph 3 provides that, except as provided in paragraphs 4 and 5, the disposal of dredged material may not occur at the sites beginning eight years after the effective date of today's designations, unless a DMMP has been completed by the USACE. This eight-year deadline is subject to extension under paragraph 4 by agreement of various parties expected to participate in the development of the DMMP, namely the USACE, the EPA, the state of Connecticut and the state of New York. This deadline also is subject to extension by the EPA under paragraph 5, without agreement from other parties, if the EPA determines that the parties participating in the development of the DMMP have attempted in good faith to meet the deadline, but that the deadline has not been met due to factors beyond the parties' control (including funding). Such an extension may occur in addition to any extensions granted under paragraph 4, but may be only for one additional year. For example, if all parties agree to a one year extension, and the EPA later grants a one year extension, then the DMMP process could take a total of ten years (without the use of the sites being suspended or terminated).
If the final deadline set pursuant to paragraphs 3, 4 and 5 is missed, use of the sites will be prohibited for a year. If at the end of that year, a DMMP still has not been completed, use of the sites pursuant to today's designation will terminate.
Paragraph 3 of the final rule also specifies that use of the sites will be suspended or terminated if following the completion of the DMMP within the eight-year (plus extensions) time frame, the EPA does not thereafter amend today's rule to incorporate procedures and standards that are consistent with those recommended in the DMMP. Paragraph 7 gives the EPA 120 days from the completion of the DMMP to adopt such procedures and standards. If the EPA misses the deadline specified in paragraph 7, use of the sites will be suspended until the EPA issues a final amended rule. If the EPA makes a final determination and adopts procedures and standards consistent with the DMMP's recommendations, then use of the sites will continue (but will be restricted in accordance with the adopted DMMP recommendations). If the EPA makes a final determination not to adopt procedures and standards consistent with the DMMP recommendations, then use of the sites pursuant to today's rule will be terminated. The EPA notes that it hopes to be able to support the DMMP recommendations. However, the EPA cannot commit in advance to do so, but rather must preserve its discretion, in response to public comments, not to adopt the DMMP recommendations.
The amended EPA rule need not be identical to the DMMP recommendations. If the amended EPA rule is not identical to the DMMP recommendations, but the EPA has adopted substantially all of the procedures and standards for the use of the sites and the use of practicable alternatives to open-water disposal recommended in the DMMP, the use of the sites will not terminate. In addition, the amended EPA rule will be considered “consistent” even if the EPA has not adopted a recommendation (or recommendations) of the DMMP that are not consistent with applicable law. Of course, the amended EPA rule will be considered “consistent” even if the EPA goes beyond the recommendations of the DMMP and adopts stricter standards.
In addition, it is not the intention of today's final rule to have use of the sites terminate simply because of a good faith error by the EPA. Thus, if a party believes that EPA's final amended rule does not contain substantially all procedures and standards recommended in the DMMP, that party will have the obligation to first petition the EPA prior to filing any court action, so as to give the EPA the opportunity to correct any inadvertent omission or to reaffirm its determination that it has adopted substantially all procedures and standards in the DMMP. A party will be able to go directly to court to seek termination of the use of the sites only if it can show that the EPA, in amending the rule, did not make a good faith attempt to adopt procedures and standards that were consistent with those recommended in the DMMP.
The final rule contemplates that the USACE will develop through the DMMP process procedures and standards to reduce or eliminate disposal of dredged material in Long Island Sound to the greatest extent practicable. If any party is not satisfied that the final DMMP recommends such procedures and standards, then paragraph 7 of the Restrictions in today's rule specifies that any person may petition the EPA to do a rulemaking to amend these designations to establish different or additional standards.  The EPA also may initiate such a rulemaking on its own initiative. While the use of the sites will not automatically terminate if it is the view of NY DOS or others that the DMMP does not recommend sufficient measures, the EPA recognizes that such a conclusion by the NY DOS or others could lead to a revival of the past objections by the NY DOS and others to the continued use of these sites. At minimum, any failure to recommend sufficient measures could have the unfortunate effect of creating the need to revisit issues in a petition process. Thus, the EPA will work with the USACE, and the states of New York and Connecticut, to try to ensure that this does not occur.
While any DMMP will be carried out by the USACE, active support and cooperation will be needed from other parties, including the states of Connecticut and New York. EPA believes that there has been such support and cooperation and fully expects that this will continue. However, to help ensure that any DMMP process moves forward expeditiously, paragraph 6 of the Restrictions specifies that the EPA will conduct an annual review of progress in developing the DMMP. If the EPA finds that the DMMP is being unreasonably delayed by one or more parties, paragraph 6 specifies that the EPA may as appropriate: (i) Suspend use of the sites (through a rulemaking amending today's site designations) even prior to the deadlines established in paragraphs 3-5 of the Restrictions, or (ii) exercise (again through rulemaking) its statutory and regulatory authorities regarding designation of ocean disposal sites (which could include new site designations without including the requirement that there be a DMMP). Of course, EPA expects all parties to continue to cooperate in fostering a DMMP, so that use of the above measures by the EPA may never be necessary.
The final rule contemplates that there will be a three staged process for supporting the goal of reducing or eliminating the disposal of dredged material in Long Island Sound. At all times, site use will be limited by the need to comply with all applicable statutory and regulatory requirements, including the prohibition on open-water disposal if there is a “practicable alternative” under 40 CFR 227.16. However, over time, compliance with 40 CFR 227.16 and today's final rule will be achieved in three different ways. First, pursuant to paragraph 8 of the Restrictions, disposal from three enumerated projects that already have been authorized or permitted will be allowed without having to follow any additional particular procedures or standards. Such disposal must meet all applicable statutory and regulatory requirements.  Second, for projects initiated other than those projects but before completion of the DMMP, the requirements of paragraph 9 will apply. In particular, each project will be subject to review by a Regional Dredging Team, which will work to identify practicable land-based alternatives and to ensure their use to the maximum extent practicable. Third, for projects initiated after completion of the DMMP, the requirements of paragraph 7 will apply. As discussed above, the final rule contemplates that the DMMP will develop and the EPA will adopt (subject to consideration of public comments) procedures and standards for the use of practicable alternatives to open-water disposal. The EPA hopes that the combined efforts of the Regional Dredging Team and the parties participating in the DMMP will lead to a continual reduction in the use of the sites over time.
It should be noted that even after the EPA adopts procedures and standards consistent with the DMMP recommendations, the decision regarding whether there is a “practicable alternative” will continue to be made on a case by case basis, in connection with the permitting process. However, any case-by-case determinations will at a minimum need to comply with any procedures and standards included in the site designations restrictions.
Paragraph 9 also emphasizes two points, consistently with the way in which the EPA interprets 40 CFR 227.16. First, “practicable alternatives” (as defined in 40 CFR 227.16) must be used for the maximum volume of dredged material practicable. That is, even if a practicable alternative is not available for all of the dredged material from a project, if a practicable alternative is available for a portion of the dredged material, it must be used for disposal of that portion of the material in order to at least reduce the use of the sites being designated today.
Second, the final rule recognizes that use of practicable alternatives may mean that there will be additional costs (in comparison to open-water disposal). Paragraph 9 incorporates by reference 40 CFR 227.16(b) of the EPA's ocean disposal regulations, which defines “practicable alternative” as an alternative which is, “available at reasonable incremental cost and energy expenditures, which need not be competitive with the costs of ocean dumping, taking into account the environmental benefits derived from such activity, including the relative adverse environmental impacts associated with the use of alternatives to ocean dumping.” Thus the final rule emphasizes that the designated sites may not be used whenever a “practicable alternative” is available even when this means added reasonable incremental costs. Under paragraph 9 and the general ocean dumping regulations, the USACE (the permitting agency) must make the initial determination of whether this test has been met, but the USACE decision is subject to review and possible objection by the EPA. Also, paragraph 9 is a restriction in an EPA site designation. Therefore, if the EPA objects to any USACE determination, use of the designated sites will be prohibited unless and until the EPA objection is resolved. This EPA oversight established by today's rule is in addition to the EPA's statutory and regulatory authority to review and object to USACE permits.
By definition, the requirement that projects use “practicable alternatives” will not impose unreasonably higher costs. Also, if an alternative does not have less adverse environmental impact or potential risk to other parts of the environment than use of the Sound, today's rule will not require that it be used. However, the EPA recognizes that even where use of Long Island Sound has been determined to be environmentally acceptable, there may be alternatives (e.g., those involving beneficial use) that are environmentally preferable to use of the Sound. When such preferable alternatives are identified, they will need to be used if they are available at “reasonable incremental cost.”
Today's final rule does not attempt to specify in advance how the “reasonable incremental cost” standard will be applied in any particular case. The regulation contemplates a balancing test, and the EPA believes that the determination is best made on a case-by-case basis. The final rule also does not attempt to specify who will need to pay for any reasonable incremental costs. Rather, the share of such costs (if any) to be borne by private parties, state government, local government, or the federal government also will need to be worked out in response to actual situations. It should be understood, however, that if the use of a practicable alternative is required in the future pursuant to today's rule (and 40 CFR 227.16), and no entity is willing to pay the reasonable incremental costs, then use of the sites will be prohibited for such projects even when this means that planned projects must be stopped.
Paragraph 10 of the Restrictions simply repeats the statutory and regulatory requirement that disposal at these sites will be limited to dredged sediments that comply with the Ocean Dumping Regulations. Under 33 U.S.C. 1413(d), the USACE may request and the EPA may grant a waiver allowing otherwise unsuitable materials to be disposed at open-water disposal sites. The EPA notes that no dredged material has ever been disposed under such a waiver at any open-water disposal site. However, paragraph 11 of the Restrictions provides for advance notice to the Governors of Connecticut and New York, in the unlikely event that there is a future request for such a waiver at these sites.
Paragraph 12 restricts use of the sites during severe weather conditions, in order to reduce the risk of spillage.
Paragraphs 13 and 14 of the Restrictions list various legal restrictions on what the EPA may agree to in a rule. These legal restrictions would apply even if they were not stated in today's final rule. First, as noted in paragraph 13, the parties participating in the DMMP will need to seek additional federal and state funding in order to develop the DMMP. The EPA cannot guarantee that federal funds will be made available to the USACE. Paragraph 13 also specifies that the sole remedy for any failure to meet the conditions specified in today's final rule shall be restriction of the authority to dispose of dredged material at these sites pursuant to today's designations. Thus, for example, if funding is not provided, neither the EPA nor the USACE nor any other party may be sued for failing to carry out the DMMP. Rather, the remedy if a DMMP is not developed is that the use of the sites pursuant to today's final rule will be terminated.
Paragraph 14 specifies that nothing in today's final rule precludes the EPA from designating other ocean disposal sites, not subject to the restrictions in this final rule, or taking any subsequent action to modify today's site designations, provided that the EPA makes any such designations or takes such subsequent action through a separate rulemaking in accordance with all applicable legal requirements. Under the MPRSA, the EPA cannot agree in advance that it will never (under any circumstances) designate other ocean disposal sites or that it will never change today's final rule. Notwithstanding this statement of legal rights, the EPA emphasizes that it is fully committed to development of a DMMP for Long Island Sound, and believes that the best environmental result will be to have the DMMP develop recommendations for the management of dredged material subject to the MPRSA throughout Long Island Sound. The EPA also recognizes that if it takes a subsequent action to designate an ocean disposal site in Long Island Sound not subject to the Restrictions set forth in today's final rule, the NY DOS (or others) could renew their past objections and challenge such an action.
Paragraph 14 also provides that this final rule shall not be interpreted to restrict the EPA's authorities under the MPRSA or the implementing regulations, or to amend the implementing regulations. The statute and regulations establish minimum requirements with which the EPA and others must comply. While this final rule contains additional provisions designed to address issues raised under the CZMA, and enhance compliance with the MPRSA, these provisions do not excuse any non-compliance with the general ongoing requirements of the MPRSA. In addition, while the final rule contains provisions designed to better implement regulatory requirements (such as the “practicable alternatives” requirement), it does not amend any existing regulatory requirement.
4. Endangered Species Act (ESA)
During the EIS development process, EPA consulted under the federal Endangered Species Act (ESA) with the NMFS and the USFWS regarding the potential for the designation and use of any of the alternative open-water disposal sites to jeopardize the continued existence of any federally listed threatened or endangered species, or result in the adverse modification of any critical habitat of such species. EPA initiated consultations regarding the proposed CLIS and WLIS disposal sites with both the NMFS and the USFWS on February 13, 2003. This consultation process is fully documented in the FEIS. EPA provided the NMFS and the USFWS with EPA's conclusion that the proposed disposal site designations for the CLIS and WLIS sites were not likely to adversely affect any federally listed endangered or threatened species or designated critical habitat of any such species.
On February 5, 2004, NMFS sent a letter concurring with EPA's proposed action, stating that the designation of CLIS and WLIS, “is not likely to adversely affect listed species under the jurisdiction of NOAA Fisheries.” NMFS also noted that, “no further consultation pursuant to section 7 of the ESA is required.”
On February 12, 2004, USFWS also concurred with the findings of the EIS that designation of the disposal sites was not likely to adversely affect any federally listed species under its jurisdiction. The letter further stated that “no habitat in the project impact areas is currently designated or proposed critical habitat under provisions of the [ESA]” (87 Stat. 884 as amended; 16 U.S.C. 1531 et seq.). Copies of these letters are provided in Appendices K and L of the FEIS.
5. Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)
On February 13, 2003, EPA initiated consultation with the NMFS under the Essential Fish Habitat (EFH) provisions of the Magnuson-Stevens Fishery Conservation and Management Act. This consultation addressed the potential for the designation of any of the alternative ocean disposal sites being evaluated to adversely affect EFH. In a letter dated January 28, 2004, NMFS concurred with EPA's determination that the designation of the CLIS and WLIS disposal sites would not adversely affect EFH. This consultation process is fully documented in the FEIS.
F. Public Comments Back to Top
Dredging and dredged material disposal in Long Island Sound has long presented controversial and complex issues. Considering that fact, it is not surprising that EPA received many comments both supporting and opposing the designation of long-term, open-water dredged material disposal sites in the Sound.
As discussed above, EPA issued a Draft EIS and a Proposed Rule for the disposal site designations in September 2003. See 68 FR 53687 (Sept. 12, 2003) (Proposed Rule); 68 FR 53730 (Sept. 12, 2003) (Notice of Availability of the Draft EIS and Draft SMMPs for Public Review). EPA received numerous comments addressing the DEIS, but none specifically directed at the proposed rule. These public comments were submitted both in writing and in oral testimony at the six public hearings held by EPA and the Corps concerning the DEIS and the proposed disposal site designations. EPA considered all these comments, as required by NEPA, responded to them in Appendix L to the Final EIS issued by the Agency in April 2004. See 69 FR 18898 (April 9, 2004) (Notice of Availability of the FEIS for public review). EPA will not repeat those comments and responses here and, instead, urge interested readers to review Appendix L of the FEIS.
Although not required to do so by NEPA, see 40 CFR 1503.1(b), EPA opened a comment period on the FEIS and requested any comments from the public. Numerous public comments were submitted regarding the FEIS. In reaching its final decisions regarding the present action, as presented in this final rule, which also constitutes the record of decision (ROD) for NEPA purposes, EPA reviewed and considered all the written comments as well as the oral comments received at various public meetings held concerning the FEIS. Although NEPA does not require that federal agencies provide responses to public comments concerning a Final EIS, EPA has in this instance produced a separate Response to Comments document addressing the public comments on the FEIS. These responses to comments will not be repeated here, but the Response to Comments document is available on EPA's Web site at http://www.epa.gov/region1/eco/lisdreg/ and