[Federal Register Volume 81, Number 234 (Tuesday, December 6, 2016)]
[Rules and Regulations]
[Pages 87820-87843]
[FR Doc No: 2016-27546]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 228

[FRL-9955-13-Region 1]

Ocean Disposal; Designation of a Dredged Material Disposal Site
in Eastern Region of Long Island Sound; Connecticut

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: With the publication of this Final Rule, the Environmental
Protection Agency (EPA) is designating the Eastern Long Island Sound
Disposal Site (ELDS), located offshore from New London, Connecticut,
for the disposal of dredged material from harbors and navigation
channels in eastern Long Island Sound and Little Narragansett Bay in
the states of Connecticut, New York, and Rhode Island. This action is
necessary to provide a long-term, open-water dredged material disposal
site as an alternative for the possible future disposal of such
material. This disposal site designation is subject to restrictions
designed to support the goal of reducing or eliminating the disposal of
dredged material in Long Island Sound.
    The basis for this action is described herein and in the Final
Supplemental Environmental Impact Statement

(FSEIS) released by EPA on November 4, 2016 in conjunction with this
Final Rule. The FSEIS identifies designation of the ELDS as the
preferred alternative from the range of options considered.

DATES: This final rule is effective on January 5, 2017.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R01-OW-2016-0239. All documents in the docket
are listed on the http://www.regulations.gov Web site. Publically
available docket materials are also available from EPA's Web site
https://www.epa.gov/ocean-dumping/dredged-material-management-long-island-sound.

FOR FURTHER INFORMATION CONTACT: Jean Brochi, U.S. Environmental
Protection Agency, New England Regional Office, 5 Post Office Square,
Suite 100, Mail Code: OEP06-1, Boston, MA 02109-3912, telephone (617)
918-1536, electronic mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Organization of this document. The following
outline is provided to aid in locating information in this preamble.

I. Final Action
II. Background
III. Purpose
IV. Potentially Affected Entities
V. Disposal Site Description
VI. Summary of Public Comments and EPA's Responses
VII. Changes From the Proposed Rule
VIII. Compliance With Statutory and Regulatory Requirements
    A. Marine Protection, Research, and Sanctuaries Act and Clean
Water Act
    B. National Environmental Policy Act
    C. Coastal Zone Management Act
    D. Endangered Species Act
    E. Magnuson-Stevens Fishery Conservation and Management Act
IX. Restrictions
X. Supporting Documents
XI. Statutory and Executive Order Reviews

I. Final Action

    EPA is publishing this Final Rule to designate the ELDS to provide
an environmentally sound, open-water disposal option for possible use
in managing dredged material from harbors and navigation channels in
eastern Long Island Sound and its vicinity in the states of
Connecticut, New York, and Rhode Island. The site designation is
effective for an indefinite period of time. The use of the site is
subject to restrictions designed to reduce or eliminate open-water
disposal of dredged material in Long Island Sound, and to ensure
protection of the environment if and when the site is used.
    The site designation process has been conducted consistent with the
requirements of the Marine Protection, Research, and Sanctuaries Act
(MPRSA), National Environmental Policy Act (NEPA), Coastal Zone
Management Act (CZMA), and other applicable federal and state statutes
and regulations. Compliance with these requirements is described in
detail in Section VIII (``Compliance with Statutory and Regulatory
Requirements''). The basis for this federal action is further described
in an FSEIS that identifies EPA designation of the ELDS as the
preferred alternative. The FSEIS was released on November 4, 2016 on
the EPA Region 1 Web site: https://www.epa.gov/ocean-dumping/final-supplemental-environmental-impact-statement-eastern-long-island-sound
and is provided as a supporting document in the docket for this Final
Rule. See 40 CFR 1506.10. This Final Rule also serves as EPA's Record
of Decision (ROD) for the NEPA review supporting the designation of
this site.
    Dredged material disposal sites designated by EPA under the MPRSA
are subject to detailed management and monitoring protocols to track
site conditions and prevent the occurrence of unacceptable adverse
effects. The management and monitoring protocols for the ELDS are
described in the Site Management and Monitoring Plan (SMMP) that is
incorporated into the FSEIS as Appendix I. See 33 U.S.C. 1412(c)(3).
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.
    The designation of this disposal site does not constitute or imply
EPA's approval of open-water disposal of dredged material at the site
from any specific project. Disposal of dredged material from federal
projects, or non-federal projects involving more than 25,000 cubic
yards (cy) of material, will not be allowed at the ELDS until the
proposed disposal operation first receives, among other things, proper
authorization from the U.S. Army Corps of Engineers (USACE) under MPRSA
section 103. (Proposals to dispose of material from non-federal
projects involving less than 25,000 cy yards of material are subject to
regulation under Section 404 of the Clean Water Act.) In addition, any
authorization by the USACE under MPRSA section 103 is subject to EPA
review under MPRSA section 103(c), and EPA may concur, concur with
conditions, or decline to concur with the authorization as a result of
such review. In order to properly obtain authorization to dispose of
dredged material at the ELDS under the MPRSA, the dredged material
proposed for disposal must first satisfy the applicable criteria for
testing and evaluating dredged material specified in EPA regulations at
40 CFR part 227, and it must be determined in accordance with EPA
regulations at 40 CFR part 227, subpart C, that there is a need for
open-water disposal (i.e., that there is no practicable dredged
material management alternative to open-water disposal with less
adverse environmental impact). In addition, any proposal to dispose of
dredged material under the MPRSA at the designated site will need to
satisfy all the site restrictions included in the Final Rule as part of
the site designation. See 40 CFR 228.8 and 228.15(b)(6).

II. Background

    On April 27, 2016, EPA published in the Federal Register (81 FR
24748) a proposed rule (the Proposed Rule) to designate an Eastern Long
Island Sound Dredged Material Disposal Site (ELDS), located offshore
from New London, Connecticut. EPA's Proposed Rule also stated that two
other alternative sites, the Niantic Bay and Cornfield Shoals disposal
sites and CSDS), met the site selection criteria in the Ocean Dumping
Regulations and could be designated for long-term use. EPA indicated
that it was not proposing to designate those two alternative sites but
requested public comment on the advisability of using those sites.
    On July 7, 2016, EPA published in the Federal Register (81 FR
44220) a final rule to amend the 2005 rule that designated the Central
and Western Long Island Sound dredged material disposal sites (CLDS and
WLDS, respectively). The rule amendments established new restrictions
on the use of those sites to support the goal of reducing or
eliminating open-water disposal in Long Island Sound. The restrictions
include standards and procedures to promote the development and use of
practicable alternatives to open-water disposal, including
establishment of an interagency ``Steering Committee'' and ``Regional
Dredging Team'' that will oversee implementation of the rule. As
explained in the Proposed Rule for the ELDS, the restrictions
applicable to the CLDS and WLDS also will be applied to use of the
ELDS.

III. Purpose

    The purpose of EPA's action is to provide a long-term,
environmentally acceptable dredged material disposal option for
potential use by the USACE and other federal, state, county, municipal,
and private entities that must dredge channels, harbors, marinas,

and other aquatic areas in eastern Long Island Sound in order to
maintain conditions for safe navigation for marine commerce and
recreation, and for military and public safety operations. This action
is necessary because: (1) Periodic dredging is needed to maintain safe
navigation and occasionally improve ports and harbors to maintain
competitiveness and support a changing economy, and open-water dredged
material disposal is necessary when practicable alternative means of
managing the material are not available; (2) EPA determined that
dredged material disposal/handling needs in the eastern region of Long
Island Sound exceed the available disposal/handling capacity in that
region; (3) the two currently used disposal sites in this region, the
New London Disposal Site (NLDS) and CSDS, are only authorized for use
until December 23, 2016; (4) there are currently no disposal sites
designated for long-term use in the eastern Long Island Sound region;
and (5) under the MPRSA, an EPA designation is required for any long-
term open-water dredged material disposal site in Long Island Sound.
    In addition, the closest designated sites outside the eastern Long
Island Sound region are the Central Long Island Sound Disposal Site
(CLDS) and the Rhode Island Sound Disposal Site (RISDS), and both are
too far from dredging centers in the eastern region of the Sound to be
reasonable alternatives to the proposed site designation. For example,
the distance from New London Harbor to the CLDS is 34.7 nautical miles
(nmi) and to the RISDS is 44.5 nmi. The Western Long Island Sound
Disposal Site (WLDS) is approximately 59 nmi west of New London Harbor,
making it an even less feasible alternative.
    While the CLDS, WLDS, and RISDS have all been determined to be
environmentally sound sites for receiving suitable dredged material,
proposing to use any of them for suitable dredged material from the
eastern region of Long Island Sound would be problematic, and EPA would
consider them to be options of last resort. Using the CLDS or RISDS
would greatly increase the transport distance for, and duration of,
open-water disposal for dredging projects from the eastern Long Island
Sound region. This, in turn, would greatly increase the cost of such
projects and would likely render many dredging projects too expensive
to conduct. For example, maintenance dredging of the U.S. Navy
Submarine Base berths planned for 2016-2020 is expected to generate
about 75,000 cy of suitable material; the estimated cost of disposal at
the ELDS is $31/cy for a total cost of $2,325,000, while disposal at
the CLDS is estimated at $64/cy for a total of $4,800,000. An
improvement (deepening) project to accommodate a larger class of
submarine planned for 2016-2025 is expected to generate about 350,000
cy; the estimated cost of disposal at the ELDS is $26/cy for a total
cost of $9,100,000, while disposal at the CLDS is estimated at $57/cy
for a total of $19,950,000 (USACE, 2016b). Thus, the longer haul
distance more than doubles the cost to the public for the federal
government to dredge the same project.
    Furthermore, the greater transport distances would be
environmentally detrimental, in that they would entail greater energy
use, increased air emissions, and increased risk of spills and short
dumps (FSEIS, Section 2.1). Regarding air emissions, increased hauling
distances might require using larger scows with more powerful towing
vessels, which would use more fuel and cause more air pollution. Longer
haul distances also may increase the amount of time necessary to
complete a dredging project, resulting in an extended period of
disruption to the areas being dredged.
    In its Long Island Sound Dredged Material Management Plan (DMMP),
the USACE projected that dredging in eastern Long Island Sound would
generate approximately 22.6 million cubic yards (mcy) of dredged
material over the next 30 years. Of the total amount of 22.6 mcy,
approximately 13.5 mcy was projected to be fine-grained sediment that
meets MPRSA and Clean Water Act (CWA) standards for aquatic disposal
(i.e., ``suitable'' material), and 9.1 mcy was projected to be coarse-
grained sand that also meets MPRSA and CWA standards for aquatic
disposal (i.e., also ``suitable'' material). In addition, the DMMP
projected that approximately 80,900 cy of material from eastern Long
Island Sound would be fine-grained sediment that does not meet MPRSA
and CWA standards for aquatic disposal (i.e., ``unsuitable'' material).
    In response to comments asserting that no disposal site is needed
in the eastern region of Long Island Sound, and comments urging that
the size of any site be reduced or minimized, EPA asked the USACE to
revisit once more its estimate of disposal capacity needs and to revise
the figures, if appropriate. Although the values from the DMMP
reflected substantial analysis and public input, the USACE agreed to
reassess the capacity needs in coordination with EPA. This reassessment
has resulted in a projected disposal capacity need of approximately 20
mcy, which still supports the conclusion that a disposal site is needed
in the eastern region of the Sound. The reassessment of capacity needs
is discussed further in Sections V (``Disposal Site Description'') and
VI (``Summary of Public Comments and EPA's Responses'') of this
document and in Section 5.8 of the FSEIS.
    The detailed assessment of alternatives to open-water disposal in
the USACE's DMMP determined that, while the sand generated in this
region may be able to be used beneficially to nourish beaches, there
are not practicable alternatives to open-water disposal with sufficient
capacity to handle the projected volume of fine-grained sediment. As
described in the Proposed Rule and in Section IX of the Final Rule
itself, EPA has placed restrictions on the use of all Long Island Sound
dredged material disposal sites that are designed to facilitate and
promote the use of practicable alternatives to open-water disposal
whenever available, but EPA has determined that one designated open-
water disposal site is needed in eastern Long Island Sound.
    Given the need to provide an open-water disposal site as an option
for dredged material management, EPA designation of a long-term dredged
material disposal site(s) provides environmental benefits. First, when
a site being used under the USACE's short-term site selection authority
is due to expire, designation by EPA is the only way to authorize
continued use of that site, even if the site is environmentally
suitable or even environmentally preferable to all other sites. With
the NLDS and CSDS closing in December 2016, EPA's site designation
studies were designed to determine whether these or any other sites
should be designated for continued long-term use. Congress has directed
that the disposal of dredged material should take place at EPA-
designated sites, rather than USACE-selected sites, when EPA-designated
sites are available (see MPRSA 103(b)). Consistent with that
Congressional intent, EPA's policy is that it is generally
environmentally preferable to concentrate any open-water disposal at
sites that have been used historically and at fewer sites, rather than
relying on the selection by the USACE of multiple sites to be used for
a limited time, see 40 CFR 228.5(e).
    Second, MPRSA criteria for selecting and designating sites require
EPA to consider previously used disposal sites, with active or
historically used sites given preference in the evaluation (40 CFR
228.5(e)). This preference will concentrate the effects, if any, of
open-

water disposal of dredged material to discrete areas that have already
received dredged material, and avoid distributing any effects over a
larger geographic area. Finally, unlike USACE-selected sites, EPA-
designated sites require a SMMP that will help ensure environmentally
sound monitoring and management of the sites.
    Designating an environmentally sound open-water disposal site to
allow for and facilitate necessary dredging in the eastern region of
Long Island Sound also will yield a number of public benefits. First,
designating an environmentally sound disposal site will yield economic
benefits. There are a large number of important navigation-dependent
businesses and industries in the eastern Long Island Sound region,
ranging from shipping (especially the movement of petroleum fuels and
the shipping of bulk materials), to recreational boating-related
businesses, marine transportation, commercial and recreational fishing,
interstate ferry operations, ship building, and military and public
safety operations, such as those associated with the U.S. Naval
Submarine Base in Groton and the U.S. Coast Guard facilities in New
London. These businesses and industries contribute substantially to the
region's economic output, the gross state product (GSP) of the
bordering states, and tax revenue. Continued access to navigation
channels, harbors, berths, and mooring areas is vital to ensuring the
continued economic health of these industries, and to preserving the
ability of the region to import fuels, bulk supplies, and other
commodities at competitive prices. Second, preserving navigation
channels, marinas, harbors, berthing areas, and other marine resources,
improves the quality of life for residents and visitors to the eastern
Long Island Sound region by facilitating recreational boating and
associated activities, such as fishing and sightseeing. Finally, by
facilitating dredging needed to support U.S. Navy and Coast Guard
operations, designation of an open-water dredged material disposal site
also supports national defense planning and operations as well as
public safety.

IV. Potentially Affected Entities

    Entities potentially affected by this action are persons,
organizations, or government bodies seeking to dispose of dredged
material in waters of eastern Long Island Sound, subject to the
requirements of the MPRSA and/or the CWA and their implementing
regulations. This rule is expected to be primarily of relevance to: (a)
Private 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 eastern Long Island Sound; (b) the USACE for its own
dredged material disposal projects; and (c) other federal agencies
seeking to dispose of dredged material in eastern Long Island Sound.
Potentially affected entities and categories of entities that may seek
to use the designated dredged material disposal site and would be
subject to the proposed rule include:

------------------------------------------------------------------------
                                                         Examples of
                     Category                       potentially affected
                                                          entities
------------------------------------------------------------------------
Federal government................................  USACE (Civil Works
                                                     Projects), and
                                                     other federal
                                                     agencies.
State, local, and tribal governments..............  Governments owning
                                                     and/or responsible
                                                     for ports, harbors,
                                                     and/or berths,
                                                     government agencies
                                                     requiring disposal
                                                     of dredged material
                                                     associated with
                                                     public works
                                                     projects.
Industry and general public.......................  Port authorities,
                                                     shipyards and
                                                     marine repair
                                                     facilities, marinas
                                                     and boatyards, and
                                                     berth owners.
------------------------------------------------------------------------

    This table is not intended to be comprehensive, but rather provides
a guide for readers regarding the types of entities that could
potentially be affected by this Final Rule. EPA notes that nothing in
this rule alters the jurisdiction or authority of EPA, the USACE, 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.

V. Disposal Site Description

    This rule designates the ELDS, but with site boundaries modified
from those in the Proposed Rule, for open-water disposal of dredged
material for several reasons. First, the entire ELDS is a containment
site, which will protect the environment by retaining the dredged
material within the site and, accordingly, will also support effective
site management and monitoring. Second, the NLDS, which is immediately
to the east of the ELDS, has been used for dredged material disposal
for over 60 years, and monitoring of the NLDS over the past 35 years
has determined that past and present management practices have been
successful in minimizing short-term, long-term, and cumulative impacts
to water quality and benthic habitat in this vicinity. EPA has
determined that the ELDS also can be successfully managed. Third,
designating the ELDS, which is immediately adjacent to the NLDS, would
be consistent with USEPA's ocean disposal regulations, which indicate a
preference for designating disposal sites in areas that have been used
in the past, rather than new, relatively undisturbed areas (40 CFR
228.5(e)).
    Finally, in response to public comments, which are described
further in Section VI (``Summary of Public Comments and EPA's
Responses''), EPA is designating an ELDS that has been relocated
farther to the west and is smaller in size than the preferred
alternative described in the Proposed Rule. Thus, the boundaries of the
ELDS have been redrawn for this Final Rule. For the Proposed Rule, EPA
proposed an ELDS with an estimated capacity of 27 mcy based on an
estimated need for disposal capacity of approximately 22.6 mcy for
material from the eastern region of the Sound, which in turn was based
on the dredging needs assessment from the DMMP. See 81 FR 24750. EPA
received comments stating that there was no need for a disposal site to
be designated in the eastern region of Long Island Sound. As part of
its consideration of, and response to, these comments, EPA requested
the USACE prepare a more refined estimate of the dredged material
disposal capacity needed for sediments projected to be dredged from the
eastern region of the Sound. The USACE undertook this analysis and
projected that a disposal capacity of approximately 20 mcy (based on
water volume below a depth of 59 feet [18 meters] and slope
calculations, with a buffer zone) would likely be sufficient. This
estimate reflects a variety of factors, some of which involve an
unavoidable degree of uncertainty. These factors include the following:
Specific dredging projects currently projected within the region
(including possible ``improvement projects'' to further deepen channels
or berthing areas); how much of each type of material (e.g., sand,
suitable and unsuitable fine-grained material) is estimated to be
generated by each project; how much of this material is estimated to
require open-water disposal; the possibility of increased

dredging needs caused by larger-than-normal storms; and a ``bulking
factor'' of approximately 10 percent. More specifically, the revised
projected disposal capacity need of approximately 20 mcy is based on
the need to accommodate approximately 12.5 mcy of suitable fine-grained
sediment; 2.8 mcy from potential improvement (deepening) dredging
projects; 1.8 mcy of shoal material resulting from extreme storm
events; 1.1 mcy of sand (recognizing that beach nourishment may not be
a practicable alternative for all 9.1 mcy of the projected sand); and
160,000 cy for the excavation of Confined Aquatic Disposal cells (for
material unsuitable for open-water disposal); for a total of 18,364,500
cy; and a bulking factor of approximately 10 percent of the total,
which brings the total to about 20 mcy. The ``bulking factor'' assumes
that dredged material placed at a disposal site is relatively
unconsolidated and, thus, will require more capacity when it is placed
at a disposal site than it occupied when in it was in a consolidated
state on the seafloor prior to dredging. EPA discussed this disposal
capacity needs analysis with the USACE before, during, and after its
development, and EPA has also independently assessed it. Based on all
of this, EPA regards the disposal capacity needs analysis to be
reasonable, especially in light of the unavoidable uncertainty
associated with some of its elements.
    EPA also received comments opposing designation of the ELDS but
expressing a willingness to accept the NBDS site, lying farther in
Connecticut waters. EPA regards these comments to be at least
suggestive of a desire to move the site farther from New York waters,
while recognizing that such comments do not necessarily indicate an
acceptance of an ELDS relocated to lie exclusively in Connecticut
waters. In addition, EPA received comments supporting the ELDS but
urging that its eastern boundary be pushed westward farther away from
the submarine transit corridor in that area of the Sound. Finally, EPA
received several comments opposing designation of the NBDS due to its
proximity to the Millstone Power Plant.
    Taking all of these comments and the above dredged material
disposal capacity needs analysis into account, EPA has redrawn the
boundaries of the ELDS. The site has been moved to the west so that it
avoids the submarine transit corridor. The entire site now also lies in
Connecticut waters approximately 0.2 nm from New York waters. In
addition, the northern and southern site boundaries were modified to
avoid two areas of rocky outcroppings that might provide habitat for
fish and other marine life that are attracted to ``structure'' on the
seafloor. EPA has determined that the reconfigured ELDS would provide
approximately 20 mcy of disposal capacity, which will meet the disposal
capacity need estimated by the USACE.
    The following site description is based on information in section
3.4.3 of the FSEIS and other support documents. Specifically, Figure
5.6 in the FSEIS show the location of the site and Table 5-11 provides
coordinates for the site boundaries.
    The ELDS, as described in the Proposed Rule, comprised
approximately the western half of the existing NLDS, along with Sites
NL-Wa and NL-Wb, which are adjacent areas immediately to the west of
the NLDS. The ELDS now being designated excludes the NLDS entirely and
encompasses most of former Site NL-Wa (excluding the northern bedrock
area) and former Site NL-Wb (excluding the southern bedrock area) (see
FSEIS, Figure 5.6). The ELDS combines these two areas, forming an
irregularly-shaped polygon that is 1 x 1.5 nmi, but that excludes the
two previously described bedrock areas for a total area of
approximately 1.3 square nautical miles (nmi\2\).
    Water depths in the ELDS range from approximately 59 feet (18 m) in
the north to 100 feet (30 m) in the south. The seafloor at the site
consists of mostly flat, sandy areas, sloping gradually from north to
south. However, there is an area of boulders and bedrock in the
northern part of former Site NL-Wa that has been excluded from the
reconfigured site boundaries due to its potential value as fisheries
habitat. This boulder area may be a lag deposit of a glacial moraine.
The water depth in parts of the boulder area is shallower than 59 feet
(18 m). The southwestern corner of former Site NL-Wb also contains an
area of bedrock and boulders, which is an extension of a larger area
with a similar substrate further to the south. The reconfigured site
boundaries also exclude this area of potentially high value fisheries
habitat.
    The distance from the ELDS to the closest points of land and the
state border are as follows: From the northern boundary to the
Connecticut shoreline (specifically, Harkness Memorial State Park in
Waterford, Connecticut, is 1.1 nmi; from the southeastern corner to
Fishers Island, New York, is 2.3 nmi; and from the southeastern corner
to the Connecticut/New York state border is .19 nmi).

VI. Summary of Public Comments and EPA's Responses

    EPA received numerous comments on its proposed site designation as
described in the DSEIS and Proposed Rule from federal and state elected
officials in Connecticut, New York, and Rhode Island; the USACE; the
U.S. Navy; the states of Connecticut and New York; a number of
municipalities; environmental groups; harbor and marine trade groups;
and many private citizens. EPA received comments both in support of and
in opposition to its proposed action, with some offering suggested
improvements. Documents containing copies of all of the public comments
received by EPA and EPA's response to each of the comments have been
placed in the public docket and on the Web site identified in the
ADDRESSES section of this document. There was significant overlap among
the comments received. Below, EPA summarizes the main points of the
commenters and the Agency's responses.
    Comment #1. EPA received many comments in support of the
designation of ELDS from members of the Connecticut and Rhode Island
Congressional delegations (including a separate submission from
Congressman Joseph Courtney), the U.S. Navy, the Connecticut Department
of Energy and Environmental Protection, the Connecticut Port Authority,
the Connecticut Harbor Management Association, marina and boatyard
operators, several local government officials, and private citizens.
While many of these comments were of a general nature, some of the
commenters also provided additional, specific comments related to the
proposed action which are addressed in more detail farther below in
this section.
    Response #1. EPA acknowledges the support provided for the Proposed
Rule to designate the ELDS.
    Comment #2. EPA also received a number of nearly identical comments
stating opposition to the DSEIS and the Proposed Rule to designate the
ELDS, and dredged material disposal in Long Island Sound in general.
These included comments from Congressman Lee Zeldin, Suffolk County
Legislators Sarah Anker and Al Krupski, the Citizens Campaign for the
Environment, the Fishers Island Conservancy, the Group for the East
End, the East End Sailing Association, several local government
officials, and private citizens.
    Some of these commenters found the DMMP to be inadequate,
criticized the DMMP's use of the Federal Standard in evaluating
alternatives, criticized what they see as a lack of progress toward

reducing or eliminating dredged material disposal in Long Island Sound
(and, conversely, a lack of progress in increasing beneficial use), and
opposed the preferred alternative of designating the ELDS as a dredged
material disposal site. Some of the commenters also provided
additional, specific comments, which are addressed in more detail
elsewhere in this section.
    Response #2. EPA acknowledges, but disagrees with, the opposition
to the designation of the ELDS, and to the open-water disposal of
dredged material in Long Island Sound in general, expressed by these
commenters. At the same time, as discussed further in response to other
comments in this section, EPA concludes that some amount of open-water
disposal of dredged material into Long Island Sound will be necessary
in the future because: (1) Dredging is essential to allow for safe
navigation for recreational, commercial and military and public safety
vessels in Long Island Sound, and (2) practicable alternatives to open-
water disposal are unlikely to be sufficient to accommodate the amount
of material projected to be dredged from the eastern region of Long
Island Sound over the 30-year planning horizon. Furthermore, the ELDS
is an environmentally appropriate disposal site and restrictions on the
type of material that can be placed at the ELDS, coupled with
regulatory requirements to use available practicable alternatives to
open-water disposal, should ensure that any use of the disposal site is
minimized and does not harm the environment. The Final Rule includes
the same site use restrictions that were promulgated for the CLDS and
WLDS and are designed to reduce or eliminate the disposal of dredged
material into the waters of Long Island Sound.
    In response to concerns regarding the adequacy of the DMMP, EPA
believes the DMMP provides useful information to help the agencies
achieve the goal of reducing or eliminating the open-water disposal of
dredged material in the Sound. To help realize this goal, the DMMP
recommends standards and procedures for the agencies to use in the
review of dredged material management proposals. In addition, the DMMP
identifies and discusses a range of specific alternatives to open-water
disposal for each of the 52 Federal Navigation Projects (FNPs) in Long
Island Sound. The choice of which alternative (or alternatives) should
be implemented for a specific dredging project will be made in the
future based on the facts, law and policy that exist at the time of the
decision. EPA has provided a more detailed discussion regarding the
Federal Standard in the preamble to the final rule for the Central and
Western Disposal Sites (81 FR 44220) and in the complete Response to
Comments document placed in the public docket and on the Web site
identified in the ADDRESSES section of this document.
    Comment #3. Commenters provided a range of opinions on the need for
a disposal site in Eastern Long Island Sound. Some commenters noted
that dredging is necessary to ensure recreational boating and
commercial shipping access to the waters of Long Island Sound. They
point out that marinas, boatyards, and boat clubs provide the main
access for the public to get out onto the Sound and these facilities
must dredge periodically to maintain sufficient depth for safe berthing
and navigation. In addition, they comment that dredging is vital to
ensure the continued existence of commercial and recreational
industries that generate billions of dollars of economic activity and
support thousands of jobs around the Sound. They also note that
dredging is important to support the function of national interest
facilities, such as the Naval Submarine Base New London and U.S. Coast
Guard facilities. These commenters conclude that the ELDS site, as
proposed, will meet the dredging needs for the region over the next 30
years and, therefore, there is no need to designate additional sites
(such as the CSDS or NBDS).
    Other commenters conclude that the dredging needs in the DMMP are
vastly overstated, and that there is no need for a disposal site in
eastern Long Island Sound. In comments provided by the New York State
Department of State (NYSDOS) and New York State Department of
Environmental Conservation (NYSDEC), the departments noted that they
did not think it was necessary to designate a site in the eastern
region of Long Island Sound, but they also recognized the importance of
providing stakeholders with a range of options for management of
dredged material and recommended EPA designate the NBDS alternative and
the NLDS as a ``remediation site.'' EPA received a letter from New York
Governor Andrew Cuomo after the end of the comment period expressing
opposition to any disposal site designation in eastern Long Island
Sound. The Governor's comments further state that the EPA and USACE are
incorrectly seeking to justify an eastern site based on the assertion
that there is inadequate capacity at the CLDS, WLDS, and Rhode Island
Sound Disposal Site (RISDS). (Additional points in the Governor's
letter are addressed at Comment and Response #4 below.)
    Response #3. EPA agrees that dredging is necessary to provide for
safe navigation in and around Long Island Sound and acknowledges that
the marine trade industry is an important contributor to the economies
of both Connecticut and New York. EPA also agrees that dredging is
necessary to provide recreational boating access to Long Island Sound.
Recreational boating, and associated activities such as fishing and
sightseeing, are important public uses of the Sound that improve the
quality of life for residents and visitors alike, while also
contributing to the local economy. EPA also notes that by helping to
provide for safe navigation, not only does environmentally-sound
dredging and dredged material management benefit commercial and
recreational uses of Long Island Sound, but it also contributes to
national security and public safety by facilitating navigation for U.S.
Navy, U.S. Coast Guard, and other types of military and public safety
vessels.
    EPA disagrees with the suggestion in the letter from NYSDOS and
NYSDEC and the Governor's letter that an eastern Long Island Sound
disposal site is not needed because there is sufficient capacity at
other already designated sites outside of the eastern Sound, such as
the CLDS, WLDS, and RISDS. The USACE projected in the DMMP that
dredging in Long Island Sound would generate approximately 52.9 mcy of
material over the 30-year planning horizon, with approximately 30.3 mcy
coming from the western and central regions, and 22.6 mcy from the
eastern region. Of the 52.9 mcy, approximately 3.3 mcy of material are
projected to be unsuitable for open-water disposal, see 81 FR 24750,
leaving approximately 49.6 mcy of material that could potentially be
placed at an open-water disposal site, if necessary. Of this 49.6 mcy,
15.2 mcy are projected to be sand that could potentially be used for
beneficial uses, such as beach nourishment, while 34.4 is projected to
be fine-grained material suitable for open-water disposal. Obviously,
it is likely that beneficial uses, or some other upland management
option, will be found for some amount of the sand, and even some amount
of the fine-grained materials, but there is no guarantee of this and it
is impossible to be sure in advance what these amounts will be.
    As noted in the DSEIS, the CLDS and WLDS are each estimated to have
a disposal capacity of about 20 mcy. This 40 mcy of capacity is not
enough to take

the full 49.6 mcy of material that could require open-water disposal.
The RISDS was designated in 2005 to serve the dredging needs of the
Rhode Island and southeastern Massachusetts region.
    Furthermore, the predicted amounts of material to be managed are
unavoidably imperfect estimates. The actual amounts of material to be
managed could be higher (or lower) over the 30-year planning horizon,
especially when unpredictable events such as large storms and possible
improvement dredging needs are considered. Therefore, EPA deems it
reasonable to take a conservative approach and designate sites to
ensure adequate disposal capacity is available for all the projected
material, recognizing that all the capacity might not end up being
needed. Indeed, as per the site use restrictions, EPA will be working
with others to try to find beneficial use options for dredged material
to minimize how much disposal capacity is needed.
    Beyond the issue of having enough disposal capacity, EPA also
determined that the CLDS, WLDS, and RISDS would not reasonably serve
the needs of the eastern Long Island Sound region once the
environmental effects, cost, environmental and safety risks, and
logistical difficulties of using such distant sites were taken into
account. Thus, part of the basis of EPA's determination that a
designated site is needed in eastern Long Island Sound is the longer
transit distances from dredging centers in the region to the CLDS,
WLDS, and RISDS. These longer trips would result in greater energy use,
increased air emissions, increased risk of spills, more difficult
project logistics, and greater cost.
    As part of its consideration of, and response to, comments
asserting that no disposal site is needed in the eastern region of Long
Island Sound, and comments urging that the size of any site be reduced
or minimized, EPA asked the USACE to revisit once more its estimate of
disposal capacity needs and prepare a more refined estimate of the
dredged material disposal capacity needed for sediments projected to be
dredged from the eastern region of the Sound. Although the values from
the DMMP reflected substantial analysis and public input, the USACE
agreed to reassess the capacity needs in coordination with EPA. The
USACE undertook this analysis and projected that a disposal capacity of
approximately 20 mcy would likely be sufficient to meet disposal needs
over the next 30 years.
    Comment #4. EPA received a letter from New York Governor Andrew
Cuomo (and undersigned by 32 federal and state elected officials) after
the end of the comment period (dated August 4, 2016). The Governor's
letter expresses opposition to any disposal site being designated in
the eastern region of Long Island Sound and indicates his intent to
legally challenge any EPA rule designating a disposal site in eastern
Long Island Sound and seek to prevent any disposal pursuant to any such
rule. The Governor states that this stance is consistent with the State
of New York's decades-long opposition to ``the unabated dumping of
dredged materials in Long Island Sound.'' The letter also states that
the designation of a site in eastern Long Island Sound is not necessary
and may further impede progress toward reducing or eliminating open
water disposal, a fundamental component of the rule. In addition, the
letter indicates that the State of New York opposes the site
designation based on comments provided by NYSDOS and NYSDEC in a joint
letter. The letter further states that the EPA and USACE are
incorrectly seeking to justify an eastern site based on the assertion
that there is inadequate capacity at the WLDS, WLDS, and RISDS.
    Response #4. EPA is not legally obligated to consider and respond
to the Governor's comment letter in this rulemaking process and
environmental review under NEPA because the letter was submitted after
the close of the comment period. Nevertheless, EPA has reviewed and
given careful consideration to the views presented by Governor Cuomo
and provides a response here.
    EPA disagrees with the stance presented by the Governor's letter.
Without waiting to read EPA's final analysis of whether an appropriate
site can be identified, and whether there is a need for such a site to
provide a dredged material disposal option to ensure that dredging
needed to ensure safe navigation and suitable berthing areas for
recreational, commercial, public safety and military vessels, the
Governor expresses a plan to sue over any rule designating a site in
the eastern region of Long Island Sound.
    While the Governor's letter suggests that New York ``has for
decades opposed'' dredged material disposal in Long Island Sound, the
reality is more nuanced. Over the years, as with the Connecticut shore
of the Sound, harbors and marinas on the New York shore of Long Island
Sound have been dredged and in some cases the sediments have been
placed at disposal sites in Long Island Sound, without objection from
New York (e.g., Mamaroneck Harbor). At other times, NY has not objected
as long as materials were not placed at the NLDS near to Fisher's
Island, NY, and were instead placed at the CLDS, just south of New
Haven, Connecticut. At other times, when practicable alternatives were
available, material dredged from New York waters has been managed at
upland sites. The same is true for material dredged from Connecticut
waters (i.e., that some material has been placed at open-water disposal
sites, while other material has been managed at upland sites).
Furthermore, in still other cases, the dredged material from particular
projects has been analyzed and found to be unsuitable for open-water
disposal and such material has been managed using methods other than
open-water disposal (e.g., placement in a confined aquatic disposal
[CAD] cell or confined disposal facility [CDF]). Thus, some suitable
material from New York has been placed at open-water disposal sites,
while some has been managed at upland locations (e.g., for beach
nourishment) and unsuitable material has been managed without open-
water disposal. EPA supports this type of overall approach (i.e.,
choosing a management method appropriate to the facts of each
individual case from a menu of environmentally sound methods).
    Consistent with this more nuanced history, EPA believes these
issues should be addressed based on their technical, factual, legal,
and policy merits, rather than taking an across-the-board position for
or against dredged material disposal in the waters of the Sound. EPA
has found that the DMMP and the USACE's more recent updated dredged
material disposal capacity needs analysis clearly establish a need for
a dredged material disposal site to be designated in the eastern region
of the Sound. EPA's analysis, in turn, establishes that the ELDS is an
appropriate site for designation. This designation will provide an
option for potential use for suitable material when practicable
alternatives to open-water disposal are not available. Going forward,
application of EPA's sediment quality criteria will ensure that only
environmentally suitable dredged material can be approved for open-
water disposal. Moreover, EPA's existing ocean dumping criteria
concerning whether there is a need for open-water disposal, see 40 CFR
227.15 and 227.16, coupled with the new site use restrictions
applicable to the WLDS, CLDS, and ELDS, see 40 CFR 228.15(b)(4)-(6),
will ensure that the open-water disposal option is used only when the
material is found to be

suitable and no practicable alternatives to open-water disposal are
available.
    EPA cannot and should not base a decision not to designate an
environmentally appropriate disposal site on as of yet unidentified
upland management options that might or might not materialize in the
future for all the dredged material that needs to be managed. Such an
approach would pose an irresponsible threat to safe navigation and the
related recreational, commercial, public safety, and national defense
activities that depend on it. If, upon EPA designation of the ELDS,
there is no actual need for the site (i.e., practicable alternatives
are available for every dredging project), then dredged material will
not be placed there, as the practicable alternatives will be used
instead.
    Contrary to the views in Governor Cuomo's letter, the joint comment
letter from the NYSDOS and NYSDEC expressed recognition of both the
need for dredging to support water-dependent activities and navigation
infrastructure and ``the importance of providing stakeholders with a
range of options for management of dredged material in LIS . . . .''
Also contrary to the views expressed in the Governor's letter, the
NYSDOS/NYSDEC letter emphasizes the State of New York's commitment to
``working with all partners to secure a path forward for achievable,
measurable reductions in open water disposal over time . . . ,'' and
noted that the state had demonstrated this commitment by NYSDOS's
recent concurrence with EPA's amended Final Rule designating the CLDS
and WLDS, ``which includes updated policies and procedures intended to
meet this goal, and is subject to the additional restrictions agreed to
by all Agencies involved.'' The state agencies' letter further pointed
out that the ``[t]he proposed rule for eastern LIS contains the same
restrictions as those contained within the Final Rule for CLDS and
WLDS, with the same ultimate goal of the reduction in open water
disposal over time.'' EPA agrees with NYSDOS and NYSDEC that the site
use restrictions for the CLDS, WLDS, and ELDS are well designed to
pursue and achieve the shared long-term goal of reducing or eliminating
the open-water disposal of dredged material in Long Island Sound. At
the same time, these restrictions do not obviate the need to designate
an appropriate open-water disposal site in the eastern region of the
Sound to provide an environmentally sound disposal option for material
that cannot be managed in some other way. While the Governor states
opposition and an intent to sue over any site being designated in the
eastern region of the Sound, the NYSDOS/NYSDEC letter instead supports
designating both the NBDS and the NLDS (as a ``remediation site'') to
provide disposal options in the eastern Sound. EPA agrees that a
disposal site should be designated in the eastern Sound, but concludes
that designating the reconstituted ELDS is preferable to designating
the NBDS and NLDS.
    With regard to the Governor's concerns about the capacity at the
CLDS, WLDS, and RISDS, see Response #3 above.
    Comment #5. Among those supporting the designation of ELDS, a
number of commenters suggested revisions to the boundaries of the site
for a variety of reasons. Some suggested modifying the northern
boundary to avoid burial of rocky, hard-bottom areas that may provide
relatively higher quality fish habitat, while others suggested moving
the eastern boundary of the proposed ELDS to remove any portion of the
site from the submarine transit corridor into the Thames River.
Comments from NYSDOS and NYSDEC recommend buffer zones be established
around bedrock and archeological areas and included in the Site
Management and Monitoring Plan (SMMP) for the ELDS.
    Response #5. EPA agrees with the comments to modify the disposal
site boundaries to avoid the bedrock and boulder areas and the
submarine transit corridor. As discussed in detail above in Section V,
EPA is designating the ELDS site with modifications to the boundaries.
EPA has redrawn the boundaries of the ELDS to exclude both the rocky,
hard-bottom area in the north central portion of the site, and another
smaller rocky area in the southwestern corner of the site. Disposal in
the ELDS near those areas will be carefully managed, including
establishing a 100-meter buffer, to avoid any adverse impacts to these
important habitat features. EPA also has shifted the eastern boundary
of the ELDS to the west to remove it entirely from the submarine
transit corridor. The eastern boundary of the ELDS site is now .367 nmi
west of the corridor. This shift of the site also has moved it entirely
out of New York waters.
    Comment #6. USACE provided comments supporting designation of the
Cornfield Shoals Disposal Site (CSDS). The USACE would like a cost-
effective open-water alternative for the Connecticut River dredging
center, and it states that the availability of the CSDS would help
extend the useful life of the CLDS and ELDS by reducing reliance on
those sites for placement of materials suitable for CSDS. Another
commenter recommends designation of the CSDS to continue its role as a
dispersal site for clean, sandy material in order to ``take some
pressure off'' while supporting the designation of NBDS, both in lieu
of ELDS. NYSDOS and NYSDEC opposed designation of CSDS because of the
dispersive nature of the site.
    EPA received a joint letter from NYSDOS and NYSDEC that commented
that there isn't really a need for a site in eastern Long Island Sound
based on historic disposal amounts and capacity at other existing sites
like the CLDS, but recognized that some stakeholders in the region need
one, so they recommend designation of the NBDS. They further
recommended designation of the NLDS as a ``remediation site.'' EPA
received comments from others expressing concern that designation of
the NBDS would contribute to cumulative impacts to Niantic Bay, which
is already stressed by the thermal discharge from the Millstone Nuclear
Power Station. CTDEEP, while expressing support for ELDS, also
indicated that NBDS, in combination with ELDS, is a viable option if
adequate management practices are in place at the site to ensure
containment of dredged materials. Another commenter reluctantly
supported designating NBDS as the lesser of evils, while still other
commenters opposed designation of the NLDS and wanted that site closed.
EPA also received comments stating it should have given more
consideration to designating a site outside Long Island Sound,
including in deep open-ocean waters off Rhode Island and off the
continental shelf.
    Response #6. While EPA did determine for the Proposed Rule that the
CSDS meets the site selection criteria and could be designated in
combination with one of the other alternatives, and did seek comments
on that position, EPA ultimately decided not to designate the CSDS. EPA
agrees that the site is dispersive and lies within a high energy area,
which makes the site difficult to manage and monitor. Further, use of
this site would need to be limited to receiving material such as sand,
which EPA feels can and should typically be used for beneficial uses,
instead, such as beach nourishment. Finally, EPA has concluded that
designating a single site is preferable to designating multiple sites
because dredged material placement would be concentrated in one area
and site management and monitoring demands would be reduced. EPA also
has concluded that the ELDS will provide an adequate open-water
disposal option by itself, while the CSDS would be insufficient by
itself

because of the restrictions for site use that EPA would place on it.
    Regarding the request to designate the NBDS, based on the dredging
needs assessment conducted by the USACE for the DMMP, and the
subsequent, more refined dredged material disposal capacity needs
analysis by the USACE, EPA is confident that the ELDS is sufficient by
itself to meet all the open-water disposal needs of the eastern Long
Island Sound region and EPA prefers to designate a single site to serve
the region. Therefore, there is no need to designate the NBDS, too.
Moreover, designating a second site would entail additional monitoring
and management work and expense that can be avoided. Finally, had EPA
decided to designate the NBDS, it would only have designated the
containment portion of the site to ensure containment of the dredged
material, which does not provide enough capacity to meet the projected
need. The question of whether designating the NBDS would cause adverse
cumulative impacts on the ecology of Niantic Bay when viewed together
with effects of the Millstone Nuclear Power Station thermal discharge
is now moot because EPA is not designating the NBDS. With regard to
consideration of sites outside of Long Island Sound, as discussed in
Chapters 3, 4, and 5 in the DSEIS and in the Proposed Rule, EPA
considered a wide range of alternatives, including sites in Block
Island Sound and on the continental shelf, before deciding to propose
designation of the ELDS. The sites in Block Island Sound had a
combination of significant marine habitats and strong tidal currents,
and were relatively small or were located at a comparatively long
distance from the dredging centers in the region. EPA's evaluation also
determined that the long distances and travel times between the
dredging locations in eastern Long Island Sound and the continental
shelf posed significant environmental, operational, safety, and
financial concerns, rendering such options unreasonable.
    Finally, with regard to the suggestion that the NLDS be designated
as a ``remediation site,'' EPA disagrees. Long-term monitoring of the
disposal mounds at the NLDS, and surveys conducted in 2013 at all the
alternative sites, indicate a healthy and diverse benthic community and
no evidence of levels of contamination that would require some sort of
``remediation,'' even if it could be determined what type of
remediation would be appropriate for a site in relatively deep water.
The ecological parameters and phyla data indicate that, overall, the
NLDS has relatively good species diversity and is not dominated by just
a few species. These data were consistent with observations at off-site
locations outside of the NLDS, although the species richness was
slightly lower at the off-site stations (FSEIS Section 4.9.3 and Table
4-11). Toxicity testing conducted in 2013 indicated no potential
toxicity at the NLDS or other alternative sites (FSEIS Section 4.6.3
and (Table 4-9). Finally, the majority of the NLDS is already near
capacity, with much of the site already at depths that would prevent
further placement of dredged material. EPA is not designating the NLDS
and that site will close by operation of law on December 23, 2016.
    Comment #7. NYSDOS and NYDDEC opined that there were deficiencies
in the DSEIS, such as an inadequate alternatives analysis, the absence
of comprehensive biological monitoring, and an inadequate cumulative
impact assessment. They also suggested that comments they had provided
earlier on draft sections of the DSEIS regarding physical oceanography
and biological studies were not reflected in the final reports. They
also expressed concern about the lack of information about the
effectiveness of capping plans at the NLDS.
    Response #7. EPA finds the alternatives analysis, biological
monitoring, and cumulative impact assessment were all more than
adequate. The alternatives analysis included active and historic sites,
as well as some other potential sites that had never been used before
in eastern Long Island Sound, Block Island Sound, and off the
continental shelf south of Long Island. EPA also considered use of the
CLDS, WLDS, and/or the RISDS to serve the eastern region of the Sound.
In addition, and as informed by the USACE's DMMP, EPA considered
beneficial use options and other non-open-water options such as
confined disposal cells (CDFs) or facilities (CDFs).
    EPA's cumulative impact assessment is based on over 40 years of
monitoring data on chemistry, toxicity, bioaccumulation, benthic
health, and bathymetry to assess physical and biological changes at the
NLDS and CSDS sites. It also was based on an evaluation of the
potential effects of designating the ELDS, NBDS, CSDS, or other site
alternatives. Given that EPA has not found significant adverse effects
from past disposal at the NLDS or CSDS, and does not anticipate
significant adverse effects from the future placement of suitable
material at the ELDS, it is not surprising that EPA did not find
significant adverse cumulative impacts from the proposed action. EPA
also considered issues such as the cumulative effect on bottom depths
that would result from future disposal at the proposed disposal sites.
    EPA and the USACE will continue to manage and monitor all Long
Island Sound disposal sites and will request input from the state
agencies if there is evidence of any adverse impacts. If necessary, EPA
and the USACE will modify the SMMPs for any site at which impacts have
been identified, and would do so in consultation the states of New York
and Connecticut and other interested parties, as appropriate.
    With respect to addressing comments received on various draft
reports and documents during the development of the DSEIS, EPA did take
all comments into consideration and in some cases modified those
documents accordingly. In other cases, EPA may have decided that
modifications were not warranted based on the comments submitted. EPA
solicited input throughout the development of the DSEIS through a
``cooperating agency workgroup,'' of which NYSDOS and NYSDEC were
regular participants, and from the public through an extensive public
involvement program. Agency and public input received during the three-
and-a-half-year process was reflected in the DSEIS text or in the
appendices or both. Regarding the idea of ``capping'' disposal mounds
at the NLDS with new, clean dredged material, as discussed in Response
#7 above, EPA does not see any reason to pursue this approach.
Extensive long-term monitoring of the NLDS and surveys conducted in
2013 for the DSEIS have documented a healthy benthic community at the
site, with no toxicity in the sediment.
    Comment #8. Some of the commenters who support the Proposed Rule
believe that the site use restrictions accompanying the site
designation that establish, among other things, standards and
procedures for identifying and utilizing alternatives to open-water
disposal, will help achieve the goal of reducing or eliminating open-
water disposal of dredged material wherever practicable. These
commenters support the goal of reducing open-water placement of dredged
material in the waters of Long Island Sound, but believe that it is not
feasible or practicable at this time to handle all dredged material at
upland locations or at already designated dredged material disposal
sites. Some of those opposing the designation recommended upland
placement and beneficial use of dredged material, rather than disposing
of it at open-water sites. One commenter suggested ``warehousing''
material for future use in response to sea level rise,

another suggested consideration of on-barge dewatering as a tool to
facilitate upland placement of dredged materials, and another commenter
suggested the alternative of the creation of islands near their
sources.
    Joint comments from NYSDOS and NYSDEC expressed commitment to
``working with all partners to secure a path forward for achievable,
measurable reductions in open water disposal over time . . . ,'' and
noted that the state had demonstrated this commitment by NYSDOS's
recent concurrence with EPA's amended Final Rule designating the
Central and Western Long Island Sound Disposal Sites, ``which includes
updated policies and procedures intended to help meet this goal, and is
subject to the additional restrictions agreed to by all Agencies
involved.'' The state departments' letter further pointed out that the
``[t]he proposed rule for eastern LIS contains the same restrictions as
those contained within the Final Rule for CLDS and WLDS, with the same
ultimate goal of the reduction in open water disposal over time.''
    Response #8. EPA agrees with the comment that the standards and
procedures in the Final Rule will support the goal of eliminating or
reducing open-water disposal. EPA also agrees that relying solely on
upland management alternatives for all dredged material from the
eastern region of the Sound is not feasible at this time. Such
alternatives will, however, likely be feasible for some of that
material. For example, sandy material is commonly used for beach and
nearshore bar nourishment at the present time and the standards in the
Final Rule expect that sandy material will continue to be used
beneficially. In addition, it would be impracticable to rely on distant
open-water sites outside the eastern region of the Sound, or on
contained in-water disposal, for all dredged material from the eastern
Sound. See 40 CFR 227.15 and 227.16(b).
    Ultimately, decisions about how particular dredged material will be
managed will be made in individual project-specific reviews under the
MPRSA and/or the CWA, with additional overview and coordination
provided by the Long Island Sound Steering Committee and Regional
Dredging Team (RDT), as described in the site use restrictions. The
Steering Committee and RDT have a number of important roles specified
in the site use for the ELDS, including the identification and piloting
of beneficial use alternatives, identifying possible resources to
support those alternatives, and eliminating regulatory barriers, as
appropriate. EPA expects that the Steering Committee and RDT will,
generally and on a project specific basis, facilitate the process of
matching projects, beneficial use alternatives and the resources
necessary to implement them. The process of continually seeking new
alternative uses for dredged material will provide the opportunity to
evaluate approaches not yet fully developed, such as the
``warehousing'' suggestion. EPA views on-barge dewatering as a
technique that, while expensive, has promise and should be explored and
further evaluated by the Steering Committee and RDT. Ultimately, it
could be become a useful technique for dewatering dredged material to
prepare it for management using methods other than open-water disposal.
Managing dredged material by using it to create islands was evaluated
in the DMMP. The concept of creating islands in waters of the United
States raises numerous issues (e.g., environmental, water quality,
regulatory) and any proposal of this type would need to go through a
very involved regulatory process and would have to meet all legal
requirements. This is something the Steering Committee and the RDT can
consider in the future if a proposal is developed.
    EPA agrees with the NY departments that the new site use
restrictions, agreed upon by the interested state and federal agencies
and inserted into the CLDS/WLDS regulations, include standards and
procedures to secure a path forward for achievable, measurable
reductions in open-water disposal over time. EPA also agrees that these
same restrictions are now also being applied to the ELDS. In EPA's
view, it makes sense to treat all regions of Long Island Sound the same
in this regard.
    Comment #9. EPA received a number of comments concerning potential
impacts on aquatic species including fish, lobsters and oysters. Some
expressed concern that the DSEIS: (1) Incorrectly portrays eastern Long
Island Sound as ``a barren desert with barely any fish or shellfish
species,'' based in part on what they characterized as an inadequate
data collection effort; (2) ``glosses over'' the fact that parts of the
area are federally-designated Essential Fish Habitat (EFH); and (3)
minimizes the potential impacts of dredged material disposal on
``struggling lobster populations.'' Another commenter noted that the
NLDS is adjacent to Fisher's Island, NY, where oyster harvesting has
been a way of life for centuries, and the threat to water quality posed
by an expansion of open-water dumping at this site translates directly
to a loss of important seafood jobs.
    Response #9. With respect to comments about EPA's
mischaracterization of eastern Long Island Sound in terms of biological
productivity, there was extensive documentation in the DSEIS and its
supporting technical reports supporting the conclusion that, while this
region is generally a highly productive and diverse ecosystem, the area
in which the ELDS is sited is less so. Compared with some of the hard-
bottom, bedrock and boulder areas in other parts of the region, the
seafloor in the ELDS is relatively flat and sandy, without the sort of
structure that typically supports a large diversity of fish or
shellfish. At the same time, EPA has excluded two areas from the ELDS
that do include the type of hard-bottom, bedrock and boulder conditions
that tend to provide relatively better marine habitat. As for concerns
about the data on fishing activity, EPA made an extensive effort to
encourage as many fisherman as possible to respond to the survey in
order to provide information that was as accurate as possible for
analysis. The survey was made available for 37 days and, as noted in
the DSEIS, it was distributed via multiple media avenues. Of 440
respondents, only 229 surveys provided sufficient information (at least
five questions answered), and very few provided location-specific
information as to where they fished. Of the 229 respondents, only six
percent indicated they fished near dredged material disposal sites (one
percent regularly and five percent occasionally). There is no
shellfishing in this area, and the closest shellfish aquaculture
operation is several miles west of the ELDS and closer to shore.
    EPA did not gloss over the existence of EFH in the vicinity of the
ELDS. As required by the Magnuson-Stevens Fisheries Conservation and
Management Act, EPA coordinated with the NOAA National Marine Fisheries
Service (NMFS) to determine whether its proposal to designate the ELDS
would cause adverse impacts to EFH. NMFS concurred with EPA's
determination that the designation of the ELDS would not adversely
affect EFH. The coordination process is fully documented in the DSEIS.
    EPA assessed lobster abundance in the DSEIS and found that
alternative sites do not contain preferred habitat for lobsters. Prior
to 1999, lobsters were very abundant throughout Long Island Sound, and
particularly in the western and central regions. However since the
major lobster die-off in 1999, lobsters are far less abundant through
the Sound, and found primarily in the deeper waters of the central
basin and The

Race. The 1999 lobster die-off prompted millions of dollars in research
over the past 16 years, the results of which have led scientists and
resource managers to believe that the phenomenon was caused by a
combination of factors, including increased water temperatures, low
dissolved oxygen levels (hypoxia), a parasitic disease (paramoeba), and
possibly pesticide runoff. Researchers have not cited dredged material
disposal as a possible factor in the die-off.
    EPA does not agree that designating the ELDS will threaten
oystering and the way-of-life of residents of Fisher's Island, NY, or
cause the loss of jobs in the seafood industry. The boundaries of the
ELDS have been revised so that it is farther from Fisher's Island,
entirely outside of the NLDS, and entirely outside of New York State
waters. EPA's evaluation of the ELDS indicates that designation of the
site will not cause significant adverse effects to water quality or
aquatic organisms or their habitat. As a result, the site designation
will not cause lost jobs in the seafood industry. To the contrary,
designation of the ELDS may assist the local seafood industry. Fishing
vessels require adequate navigation channels and berthing areas, which
are maintained as a result of dredging. Designation of the ELDS should
facilitate needed dredging by providing an open-water disposal option
for use when practicable alternative management methods are not
available.
    Comment #10. Some of those opposing the Proposed Rule stated that
the dredged material is toxic and should not be placed in the waters of
Long Island Sound, and requested remediation of such dredged material.
Commenters questioned the use of older data to support the evaluation
of dredged material for its suitability for open-water disposal. Some
commenters noted concern with the introduction of nitrogen from dredged
material into the system and requested that EPA estimate the quantity
of nitrogen that would be added to the system from dredged material
over the next 30 years. EPA also received comments regarding concern
due to metal or organic contaminant concentrations in sediment and
benthic organism tissues, elevated breast cancer rates in East Lyme,
and closed shellfish harvesting areas following rainfall. Some
commenters suggested that the CTDEEP Remediation Standard Regulations
should be followed for disposal of dredged material in Long Island
Sound.
    Response #10. EPA strongly disagrees with the suggestion that toxic
sediments will be disposed of at the ELDS. Neither the existing laws
and regulations nor the Final Rule would allow the disposal of toxic
material at the sites. Rigorous physical, chemical, and biological
testing and analysis of sediments is conducted prior to any
authorization to dredge. The MPRSA and EPA's ocean dumping regulations
provide that sediments that do not pass these tests are considered
``unsuitable'' and shall not be disposed of at the site.
    EPA believes concerns about the disposal of toxic sediments at the
NLDS and other Long Island Sound disposal sites also have been
addressed by the USACE's DAMOS program, which has collected data at
these sites since the late 1970s. The program has generated over 200
detailed reports addressing questions and concerns related to placement
of dredged material in the Sound. These reports indicate that toxic
sediments are not being placed at open-water disposal sites. Moreover,
sequential surveys of biological conditions at sites following the
placement of dredged material consistently show a rapid recovery of the
benthic community to that of the surrounding habitat outside the
disposal sites. Monitoring at the NLDS has verified that past
management practices have been successful in adequately controlling any
potential adverse impacts to water quality and benthic habitat.
    Furthermore, water and sediment quality have improved in Long
Island Sound as a result of improvements in the control of point source
and non-point source pollutant discharges to the Sound and its
tributaries. At the same time, dredging and dredged material management
are carefully controlled by federal and state agencies to optimize
environmental results using tools such as ``environmental windows''
that preclude dredging when sensitive aquatic organisms in the vicinity
of dredging operations would be at an increased risk of being harmed,
CAD cells or CDFs that sequester unsuitable dredged material, and
beneficial use projects that avoid open-water disposal of dredged
material that can be better put to an alternative use (e.g., using sand
for beach nourishment). This management approach is reflected in the
site use restrictions for ELDS that are intended to reduce or eliminate
the open-water disposal of dredged material into Long Island Sound by
promoting and facilitating the use of available practicable
alternatives to such open-water disposal.
    Potential risks associated with the bioaccumulation of chemicals
from sediments at the alternative sites were evaluated by comparing
contaminant concentrations in tissues of test organisms to Federal Drug
Administration (FDA) Action/Tolerance Levels for an assessment of
potential human health impacts and to Ecological Effect Values for an
assessment of ecological impacts. Ecological Effects Values represent
tissue contaminant concentrations believed to be safe for aquatic
organisms, generally derived from the final chronic value of USEPA
water quality criteria. The FDA Action/Tolerance Levels and Ecological
Effect Values are commonly used by USEPA and USACE in the dredging
program to assess risk. This evaluation considers that tissue
contaminant concentrations that do not exceed FDA Action/Tolerance
Levels or Ecological Effect Values do not result in a potential human
health or ecological risk. There is no evidence in the current
literature or other data evaluated by EPA to support a causative link
between any elevated cancer rates that may exist in East Lyme and
dredged material disposal in Long Island Sound.
    Shellfish bed closures are typically a result of bacterial
contamination from untreated or poorly treated sanitary wastewater,
stormwater runoff, marine biotoxins, or elevated water temperatures.
There is no evidence that shellfish harvesting in Long Island Sound,
most of which is from aquaculture operations conducted in open waters
off the coast, is, or will be, affected by dredged material disposal at
the ELDS.
    Regarding comments about older studies referenced in the DSEIS,
such as those conducted in support of the 2004 EIS that supported the
designation of the CLDS and WLDS, EPA used the best available
literature during the development of the DSEIS. Some of this material
was older and some was more recent. EPA also has included as part of
the FSEIS relevant data from more recent studies (such as fisheries
data) that were not available at the time the DSEIS was published. In
all cases, EPA evaluated whether the data was relevant and appropriate
for addressing whatever issue was at hand. While some parameters may
change constantly, others remain consistent for long periods of time.
Typically, older data were supplemented with newer data, or juxtaposed
to newer data, to help depict trends and patterns in the study area.
    As to the concern about dredged material disposal in Long Island
Sound contributing to nitrogen loading in these waters, EPA notes that
nitrogen loading is a concern due to its potential to help fuel
excessive algae levels, which could be one potential driver of hypoxia
in western Long Island Sound. In Chapter 5.2.1 of the DSEIS, however,
EPA

discussed the relative insignificance of nitrogen loading from dredged
material disposal. The USACE also addressed the issue in Section 3.5.2
of the DMMP. The annual placement of dredged material at the open-water
sites is estimated to add less than one tenth of one percent of the
overall annual nitrogen loading to Long Island Sound.
    Finally, EPA disagrees with the request to follow the CTDEEP
Remediation Standard Regulations (RSRs). The RSRs are not applicable to
dredged material from marine waters placed at open-water disposal
sites. Rather, they ``identify the technical standards for the
remediation of environmental pollution at hazardous waste sites and
other properties that have been subject to a spill, release or
discharge of hazardous wastes or hazardous substances.'' The MPRSA and
Ocean Dumping Regulations limit the potential for adverse environmental
impacts associated with dredged material disposal by requiring that the
dredged material from each proposed dredging project be subject to
sediment testing requirements. Suitability is determined by analyzing
the sediments proposed for dredging for their physical characteristics
as well as for toxicity and bioaccumulation. If it is determined that
the sediment is unsuitable for open-water disposal--that is, that it
may unreasonably degrade or endanger human health or the marine
environment--it cannot be placed at disposal sites designated under the
MPRSA.
    Comment #11. EPA received comments from the Shinnecock Tribal
Nation noting the tribe's longstanding reliance on the waters of Long
Island Sound for ``food, travel and spiritual renewal.'' The Shinnecock
have high regard for these waters and, as a steward for this resource,
feel a shared responsibility to protect it and to speak for other life
forms that rely on it but cannot speak for themselves. The Shinnecock's
comments note that work is beginning to investigate whether ``submerged
paleo cultural landscapes'' exist that would indicate that the tribe's
ancestors lived farther offshore than currently understood. The tribe
expresses concern that dredged material placement at an open-water site
could further bury any evidence of such sites. The tribe also expresses
concern over how long it takes aquatic organisms to recover from open-
water placement of dredged material and whether such placement at a
designated site will adversely affect whales. Finally, the Shinnecock
note that their concern over water pollution is related to their
historic use of Long Island Sound as a travel route, which they still
use for canoe journeys.
    Response #11. EPA acknowledges and respects the Shinnecock Tribal
Nation's stewardship, concern, and reliance upon the waters of Long
Island Sound. As tasked by Congress under the CWA and MPRSA, EPA also
is a steward of Long Island Sound with a mission of protecting its
physical, chemical, and biological integrity, and protecting human and
ecological health from harm that could result from the disposal of
material into these waters. As a result, EPA believes that its goals
align well with the environmental interests of the Shinnecock Tribal
Nation.
    With regard to the possibility that dredged material disposal might
further bury submerged evidence of settlements of the Shinnecock's
ancestors, EPA notes that it is currently unaware of any specific
reason to believe that such submerged evidence may exist at the ELDS or
the other site alternatives. In evaluating site alternatives, EPA
considered the site selection criteria in EPA's regulations, which
include whether ``any significant natural or cultural features of
historical importance'' may exist ``at or in close proximity to'' the
disposal sites. See 40 CFR 228.6(a)(11). EPA's consideration of this
criterion dovetailed with its consultation with the State Historic
Preservation Officers of both Connecticut and New York, as well as its
consultation with the Shinnecock Indian Nation. In addition, EPA
conducted side-scan sonar survey work to look for possible historic
resources in the area of the disposal sites and none of this work
identified any archaeological or historical artifacts of cultural
significance. If later investigations identify the presence of
submerged artifacts of cultural importance to the Shinnecock Indian
Nation, EPA will consult with the tribe regarding how to respond
appropriately in terms of the future use and management of the site.
    As discussed in detail elsewhere in the preamble, no significant
adverse effects will occur to water quality, habitat value, or marine
organisms, as a result of using the ELDS as a dredged material disposal
site. With regard to the concern expressed about possible impacts to
whales, EPA evaluated the potential for the site designation to affect
endangered species, including whales, and concluded that adverse
effects to whales or their critical habitat were unlikely to result
from the site designation. The National Marine Fisheries Service
concurred with EPA's conclusion.
    Finally, regarding the Shinnecock using the waters of Long Island
Sound for canoe journeys, nothing about the designation of the ELDS
should interfere with or preclude such journeys. First, the dredging
(and therefore dredged material disposal) season is restricted to avoid
the warmer weather months for ecological reasons, but this also ensures
that dredging traffic and disposal is less likely to interfere with
other boating activities that tend to be occur during warmer weather.
Second, any dredged material disposal would be concentrated in one
offshore area as a result of designating the ELDS. This would tend to
minimize any conflicts with non-dredging-related navigation. Finally,
multiple types of navigational activities (e.g., recreational,
commercial, military) have coexisted with dredged material disposal-
related navigation for years in Long Island Sound and EPA expects that
this will continue after designation of the ELDS.
    Comment #12. EPA received a number of very specific and detailed
comments on aspects of the studies and findings in the DSEIS and its
appendices. Subjects included the physical oceanography study in
Appendix C, physical energy and hydrodynamics, sediments, and tidal
energy projects, among others.
    Response #12. EPA's detailed responses to these comments are
contained in the Response to Comments document that is included in the
FSEIS as Appendix J and placed in the public docket and on the Web site
identified in the ADDRESSES section of this document.

VII. Changes From Proposed Rule

    In response to public comment, as previously described, EPA has
made certain adjustments to the boundaries of the ELDS as it was
proposed. These adjustments have reduced the size of the ELDS from
approximately 1 x 2 nm to approximately 1 x 1.5 nm (and an area of 1.3
nmi\2\), and the capacity of the site from 27 mcy to approximately 20
mcy. The specific boundary adjustments and the reasons for them have
been discussed above and are further discussed below.
    EPA also has decided not to designate the NBDS or CSDS. In the
Proposed Rule, EPA did not propose to designate either of these two
sites, but did request public comment on whether either or both ought
to be designated in addition to, or instead of, the ELDS. EPA received
some public comments favoring designation of the NBDS or CSDS, and
other comments opposing the designation of either site. Some commenters
favored designation of the ELDS, while others commented that no

designated disposal site was needed in the eastern portion of the
Sound. After considering all these comments, EPA decided to designate
only the ELDS. This decision was based primarily on the Agency's
determination that one site is sufficient to meet the dredging needs of
the eastern Long Island Sound region, and that the ELDS is the best
site when evaluated in light of the site selection criteria in the
Ocean Dumping Regulations. EPA also received public comments that
support this decision.
    The Final Rule for the ELDS, as with the Proposed Rule,
incorporates by reference the site use restrictions, including the
standards and procedures, contained in the final amended site
designation rule for the Central and Western Long Island Sound dredged
material disposal sites. These restrictions are further described in
Section IX (``Restrictions'').

VIII. Compliance With Statutory and Regulatory Authorities

    EPA has conducted the dredged material disposal site designation
process consistent with the requirements of the MPRSA, NEPA, CZMA, the
Endangered Species Act (ESA), the Magnuson-Stevens Fishery Conservation
and Management Act (MSFCMA), and any other applicable legal
requirements.

A. Marine Protection, Research, and Sanctuaries Act

    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 may be permitted. See also 33 U.S.C.
1413(b) and 40 CFR 228.4(e). Neither statute nor regulation
specifically limits how long an EPA-designated disposal site may be
used. Thus, EPA site designations can be for an indefinite term and are
generally thought of as long-term designations. EPA may, however, place
various restrictions or limits on the use of a site based on the site's
capacity to accommodate dredged material or other environmental
concerns. See 33 U.S.C. 1412(c).
    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
to the maximum extent feasible. In the absence of an available EPA-
designated site, however, the USACE is authorized to ``select''
appropriate disposal sites. There are currently no EPA-designated
dredged material disposal sites in the eastern portion of Long Island
Sound. There are two active USACE-selected sites in that region, the
NLDS and CSDS, but neither will be available after December 23, 2016,
when their Congressionally-authorized term of use expires.
    The Ocean Dumping Regulations, see generally 40 CFR subchapter H,
prescribe general and specific criteria at 40 CFR 228.5 and 228.6,
respectively, to guide EPA's choice of disposal sites for final
designation. Ocean dumping sites designated on a final basis are
promulgated by EPA at 40 CFR 228.15. See 40 CFR 228.4(e)(1). Section
102(c) of the MPRSA, 33 U.S.C. 1412(c), and 40 CFR 228.3 also establish
requirements for EPA's ongoing management and monitoring, in
conjunction with the USACE, of disposal sites designated by EPA. This
enables EPA to ensure that unacceptable, adverse environmental impacts
do not occur from the placement of dredged material at designated
sites. Examples of site management and monitoring measures employed by
EPA and the USACE 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 studies; and,
if warranted, recommending modification of site use and/or designation
conditions and restrictions. See also 40 CFR 228.7, 228.8, 228.9.
    A disposal site designation by EPA does not actually authorize the
disposal of particular dredged material at that site. It only makes the
site available as a possible management option if various other
conditions are met first. Disposal of dredged material at a designated
site must first be authorized by the USACE under MPRSA section 103(b),
subject to EPA review under MPRSA 103(c). USACE authorization can only
be granted 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 is found suitable for open-
water disposal by satisfying the applicable environmental criteria
specified in EPA's regulations at 40 CFR part 227. See 40 CFR 227.1(b),
227.2, 227.3, 227.5, 227.6 and 227.16. An authorization for disposal
also must satisfy other applicable legal requirements, such as those
under the ESA, the MSFCMA, the CWA (including any applicable state
water quality standards), NEPA, and the CZMA. The text below discusses
EPA's evaluation of the ELDS for this Final Rule using the applicable
site selection criteria from EPA's MPRSA regulations. It also discusses
the Agency's compliance with site management and monitoring
requirements.
    EPA's evaluation considered whether there was a need to designate
one or more disposal sites 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. From this evaluation, EPA concluded that one or more
open-water disposal sites were needed. EPA then assessed whether sites
were available that would satisfy the applicable environmental criteria
to support a site designation under MPRSA section 102(c). In deciding
to designate the ELDS, as specified in this Final Rule, EPA complied
with all applicable procedural requirements and substantive criteria
under the MPRSA and EPA regulations.
1. Procedural Requirements
    MPRSA sections 102(c) and 103(b) indicate that EPA may designate
ocean disposal sites 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 if an EIS is prepared by
EPA to assess the proposed designation of one or more disposal sites,
it should include the results of an environmental evaluation of the
proposed disposal site(s). In addition, the Draft SEIS (DSEIS) should
be presented to the public along with a proposed rule for the proposed
disposal site designation(s), and a Final SEIS (FSEIS) should be
provided at the time of final rulemaking for the site designation.
    EPA has complied with all procedural requirements. The Agency
prepared a thorough environmental evaluation of the site proposed for
designation and other alternative sites and courses of action
(including the option of not designating an open-water disposal site).
This evaluation was first presented in a DSEIS (and related documents)
and a Proposed Rule for promulgation of the disposal sites. EPA
published the Proposed Rule and a notice of availability of the DSEIS
(81 FR 24748) for a 60-day public comment period on April 27, 2016, and
subsequently extended the comment period by 21 days (to July 18, 2016)
to give the public additional time to comment on the proposed site
designation. By this Final Rule, EPA is now completing the designation
of the ELDS 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 USACE must provide an opportunity for public
comment. EPA and the USACE have met this obligation by publishing for
public review and comment a Draft SMMP for the ELDS. The Draft SMMP was
published with the DSEIS (as Appendix I) and the proposed rule on April
27, 2016. After considering public comments regarding the SMMP, EPA and
the USACE are publishing the Final SMMP for the ELDS as Appendix I of
the FSEIS.
2. Disposal Site Selection Criteria
    EPA regulations under the MPRSA identify four general criteria and
11 specific criteria for evaluating locations for the potential
designation of dredged material disposal sites. See 40 CFR 228.4(e),
228.5 and 228.6. EPA's evaluation of the ELDS with respect to the four
general and 11 specific criteria was discussed in the DSEIS and the
Proposed Rule and is further discussed in detail in the FSEIS and
supporting documents and is summarized below.
a. General Criteria (40 CFR 228.5)
    EPA has determined that the ELDS satisfies the four general
criteria specified in 40 CFR 228.5. This is discussed in Chapter 5 and
summarized in Table 5-9, ``Summary of Impacts for Action and No Action
Alternatives of the FSEIS.''
    i. 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 determined that use of the ELDS--as modified in
this Final Rule in response to public comments and further evaluation--
would cause minimal interference with the aquatic activities identified
in this criterion. The site is not located in shipping lanes or any
other region of heavy commercial or recreational navigation. In
addition, the site is not located in an area that is important for
commercial or recreational fishing or shellfish harvesting. Analysis of
this data indicated that use of the site would have minimal potential
for interfering with other existing or ongoing uses of the marine
environment in and around the ELDS, including lobster harvesting or
fishing activities. In addition, the nearby NLDS has been used for
dredged material disposal for many years; not only has this activity
not significantly interfered with the uses identified in this
criterion, but mariners in the area are accustomed to dealing with the
presence of a dredged material disposal site. With the adjustment to
the eastern boundary of the ELDS, EPA is even more confident that the
site will not pose a hazard to navigation. Finally, time-of-year
restrictions (also known as ``environmental windows'') imposed 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 this criterion.
    ii. 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 concludes that the ELDS, as adjusted for this Final
Rule, satisfies this criterion. First, the site is a significant
distance from any beach, shoreline, marine sanctuary (in fact, there
are no federally-designated marine sanctuaries in Long Island Sound),
or known geographically limited fishery or shellfishery. Second, the
site will be used only for the disposal of dredged material determined
to be suitable for open-water disposal by application of the MPRSA's
ocean dumping criteria. See 40 CFR part 227. These criteria include
provisions related to water quality and account 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 FSEIS, 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 at the
site nor reach any beach, shoreline, marine sanctuary, or other
important natural resource area.
    iii. 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
FSEIS, that the ELDS, in its final configuration, is sufficiently
limited in size to allow for the identification and control of any
immediate adverse impacts, and to permit the implementation of
effective monitoring and surveillance to prevent adverse long-term or
cumulative impacts. To put things in perspective, the size of the ELDS
is approximately 1.3 nmi\2\, which is just 0.003 (0.03 percent) of the
approximately 370 nmi\2\ surface area of the eastern Long Island Sound
region, and just 0.001 (less than one-tenth of one-percent) of the
approximately 1300 nmi\2\ surface area of the entire Long Island Sound.
The designation of just this one site reduces the overall number of
active disposal sites in Long Island Sound from four to three. The long
history of dredged material disposal site monitoring in New England
through the USACE's Disposal Area Monitoring System (DAMOS), and
specifically at active and historic dredged material disposal sites in
Long Island Sound, provides ample evidence that these surveillance and
monitoring programs are effective at determining physical, chemical,
and biological impacts at dredged material disposal sites such as the
ELDS.
    The boundaries of the ELDS are identified by specific coordinates
provided in Table 5-11 of the FSEIS, and the use of precision
navigation equipment in both dredged material disposal operations and
monitoring efforts will enable accurate disposal operations to be
conducted, and also will contribute to effective management and
monitoring of the sites. Detailed plans for the management and
monitoring of the ELDS are described in the SMMP (Appendix I of the
FSEIS). Finally, as discussed herein and in the FSEIS, EPA has tailored
the boundaries of the ELDS, and site management protocols, in light of
site characteristics such as local currents and bottom features, so
that the area and boundaries of the sites are optimized for
environmentally sound dredged material disposal operations.
    iv. EPA will, wherever feasible, designate ocean dumping sites
beyond the edge of the continental shelf and other such sites that have
been historically used (40 CFR 228.5(e)).
    EPA evaluated sites beyond the edge of the continental shelf and
historical disposal sites in Long Island Sound as part of the
alternatives analysis conducted for the FSEIS. The continental shelf
extends about 60 nmi seaward from Montauk Point, New

York, and a site located on the continental slope would result in a
transit of approximately 80 nmi from New London. This evaluation
determined that the long distances and travel times between the
dredging locations in eastern Long Island Sound and the continental
shelf posed significant environmental, operational, safety, and
financial concerns, rendering such options unreasonable and not
practicable. 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 dumped in unintended
areas.
    As described in Section V (``Disposal Site Description''), while
the ELDS, as modified, does not include any areas that have been used
historically for dredged material disposal, its eastern boundary is the
western boundary of the historically used NLDS. Thus, the modified site
is in the general vicinity of the historically used NLDS. To the extent
that the ELDS boundaries have been adjusted from those described in the
Proposed Rule to include only adjacent areas outside of the existing
site, EPA has concluded that these adjustments will be environmentally
beneficial, as discussed in the FSEIS. For example, rather than propose
designation of part of the existing NLDS, the eastern half of which is
at capacity and nearing depths that could lead to scouring of the
sediment by surface currents and storms, EPA's final designation of
ELDS encompasses two areas (formerly NL-Wb and NL-Wa) immediately to
the west of the NLDS. Moving the site to the west is consistent with
public comments urging that the originally proposed ELDS be moved to
the west, farther from the New London Harbor approach lane and
submarine transit corridor in that area of the Sound. It is also
consistent with public comments that favored sites that were further
from New York state waters. These two adjacent areas have been
determined to be suitable for use as containment areas by physical
oceanographic modeling. Long-term monitoring of the adjacent NLDS has
shown minimal adverse impacts to the marine environment and rapid
recovery of the benthic community in the disposal mounds. Similarly,
adverse impacts are not expected to result from use of the new ELDS.
While there are other historically used disposal sites in eastern Long
Island Sound, the analysis in the FSEIS and summarized herein concludes
that the ELDS is the preferable location. Thus, designation of the ELDS
would be consistent with this criterion.
b. Specific Criteria (40 CFR 228.6)
    In addition to the four general criteria discussed above, 40 CFR
228.6(a) lists eleven specific factors to be used in evaluating the
impact of using a site for dredged material disposal under the MPRSA.
Compliance with the eleven specific criteria is discussed below. It is
also discussed in detail in Chapter 5 and summarized in Table 5-13,
``Summary of Impacts at the Alternative Sites,'' of the FSEIS.
    i. Geographical Position, Depth of Water, Bottom Topography and
Distance From Coast (40 CFR 228.6(a)(1)).
    Water depths at the ELDS range from approximately 59 feet (18 m) in
the north to 100 feet (30 m) in the south. As described above, the
closest points of land to the site are Harkness Memorial State Park in
Waterford, Connecticut, approximately 1.1 nmi to the north, and Fishers
Island, New York, approximately 2.3 nmi to the east. Based on analyses
in the FSEIS, EPA has concluded that the ELDS's geographical position
(i.e., location), water depth, and bottom topography (i.e.,
bathymetry), along with the absence of strong bottom currents at the
site, will result in containment of dredged material within site
boundaries. As described in Section V (``Disposal Site Description''),
and in the above discussion of compliance with general criteria iii and
iv (40 CFR 228.5(c) and (d)), the ELDS also is located far enough from
shore and lies in deep enough water to avoid adverse impacts to the
coastline.
    Because the ELDS is a containment area, dredged material placed
there is expected to remain within the site and not affect adjacent
seafloor areas. Long-term monitoring of the NLDS and other disposal
sites in Long Island Sound supports that determination. Any short-term
impacts during dredged material placement, such as burial of benthic
organisms or temporarily increasing the turbidity in the water column
within the disposal site, will be localized at the site. As explained
farther below in this analysis and in the FSEIS, although dredged
material disposal will cause these localized, short-term effects, these
effects are not expected to result in significant short-term or long-
term adverse impacts to the environment.
    ii. 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 ELDS, as modified for this Final Rule, in
relation to breeding, spawning, nursery, feeding, and 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 ELDS would cause some
short-term, localized effects, overall it would not cause adverse
effects to the habitat functions and living resources specified in the
above criterion.
    The ELDS does not encompass or infringe upon any breeding,
spawning, nursery, feeding or passage area of particular or heightened
importance for juvenile or adult living resources. That said, EPA has
noted that in the north-central area of the ELDS as delineated in the
Proposed Rule, there is a hard-bottom area with rocky outcroppings that
appears likely to constitute high quality habitat for fish and other
aquatic organisms, and there is a similar hard bottom area in the
extreme southwestern corner of the ELDS. As a result, EPA has redrawn
the northern and southern boundaries of the ELDS to avoid these
particular areas.
    Generally, there are three primary ways that dredged material
disposal could potentially 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 could possibly collide or otherwise interfere with
marine mammals and reptiles. Third, if contaminants in the dredged
material are taken in by aquatic organisms, these contaminants could
potentially bioaccumulate through the food chain. However, EPA and the
other federal and state agencies that regulate dredging and dredged
material disposal impose requirements that prevent or greatly limit the
potential for these types of impacts to occur.
    For example, the agencies impose ``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 USACE permits and authorizations in response to
consultation with federal and state natural resource agencies (e.g.,
the National Marine Fisheries Service (NMFS)). Dredging, and
corresponding dredged material disposal in Long Island Sound, is
generally limited to the period between October 1 and April 30 to avoid
time periods of possibly

heightened threat to aquatic organisms. Indeed, environmental windows
are often set 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 and April 1; dredging that may
interfere with anadromous fish runs is generally prohibited between
April 1 and May 15; and dredging that may adversely affect shellfish is
prohibited between June 1 and September 30. These environmental windows
limiting when dredging can occur also, in effect, restrict periods when
dredged material disposal could occur.
    Another benefit of using environmental windows is that they reduce
the likelihood of dredged material disposal activities interfering with
marine mammals and reptiles. There are several species of marine mammal
or reptile, such as harbor porpoises, long-finned pilot whales, seals,
and sea turtles that either inhabit or migrate through Long Island
Sound. During the winter months, however, most of these species either
leave the Sound for warmer waters to the south or are less active and
remain near the shore. There also are many species of fish (e.g.,
striped bass, bluefish, and 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 considered an effective management
tool to minimize impacts to marine resources.
    Dredged material disposal will, however, have some short-term,
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.
It also may result in 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, and this pattern would be expected at the sites
evaluated in the FSEIS. As discussed in the FSEIS (section 5.2.2), over
time, disposal mounds recover and develop abundant and diverse
biological communities that are healthy and able to support species
typically found in the ambient surroundings. Some organisms may burrow
deeply into sediments, often up to 20 inches, and are more likely to
survive a burial event.
    The MPRSA regulations further limit the potential for adverse
environmental impacts associated with dredged material disposal by
requiring that the dredged material from each proposed dredging project
be subject to the MPRSA sediment testing requirements, set forth at 40
CFR 227.6, to determine the material's suitability for open-water
disposal. Such suitability is determined by analyzing the sediments
proposed for dredging for their physical characteristics as well as for
toxicity and bioaccumulation. In addition, the regulatory agencies
quantify the risk to human health that would result from consuming
marine organisms exposed to the 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, that it
may unreasonably degrade or endanger human health or the marine
environment--it cannot be placed at disposal sites designated under the
MPRSA. See 40 CFR 227.6. In light of these strict controls, EPA does
not anticipate significant effects on marine organisms from dredged
material disposal at the sites under evaluation.
    EPA recognizes that dredged material disposal causes some short-
term, localized adverse effects to marine organisms in the immediate
vicinity of each disposal event. Dredged material disposal would be
limited, however, to suitable material at the one site (see above
regarding compliance with general criteria (40 CFR 228.5(e)), and only
during the several colder-weather months of the year. As a result, EPA
concludes that designating the ELDS would not cause significant,
unacceptable or unreasonable adverse impacts to breeding, spawning,
nursery, feeding, or passage areas of living resources in adult or
juvenile phases. Moreover, there is no evidence that designating the
ELDS would have significant long-term effects on benthic processes or
habitat conditions.
    iii. Location in Relation to Beaches and Other Amenity Areas (40
CFR 228.6(a)(3)).
    EPA's analysis concludes that the ELDS satisfies this criterion.
The ELDS is far enough away from beaches, parks, wildlife refuges, and
other areas of special concern to prevent adverse impacts to these
amenities. Also, as previously noted, there are no marine sanctuaries
in Long Island Sound. The ELDS is approximately 2.3 nmi from the
closest public beach in New York, on the western shore of Fishers
Island, and approximately 1.1 nmi from the beach at Harkness Memorial
State Park in Waterford, Connecticut. Given that the ELDS is a
containment site, no material placed at the site would be expected to
move from the site to these amenity areas. 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.
    iv. 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 ELDS is being designated to receive only suitable dredged
material; disposal of other types of material will not be allowed. The
MPRSA and EPA regulations expressly prohibit open water disposal of
certain other types of material (e.g., industrial waste, sewage sludge,
chemical warfare agents, and insufficiently characterized materials)
(33 U.S.C. 1414b; 40 CFR 227.5).
    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 historical data from dredging
projects in the eastern region 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 sediment
suitability determinations applying the 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).
Dredged material must satisfy these suitability criteria before it can
be authorized for disposal under the MPRSA. In accordance with MPRSA
Sec.  106(f), private dredging projects generating up to 25,000 cubic
yards will continue to be regulated under CWA section 404.
    Dredged material to be placed at the ELDS would be transported by
either government or private contractor hopper dredges or oceangoing
bottom-dump barges (``scows'') towed by a towing vessel (e.g.,
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.
    As previously discussed, the USACE's DMMP projected that dredging
in eastern Long Island Sound will generate approximately 22.6 million
cubic yards (mcy) of dredged material over the next 30 years, including
17.9 mcy from Connecticut ports and harbors and 4.7 mcy from ports and
harbors in New York. Of the total amount of 22.6 mcy, approximately
13.5 mcy are projected to be fine-grained sediment that meets MPRSA and
CWA standards for aquatic disposal (i.e., ``suitable'' material), and
9.1 mcy are projected to be course-grained sand that also meets MPRSA
and CWA standards for aquatic disposal (i.e., also ``suitable''
material).
    As discussed above in Section VI (``Summary of Public Comments and
EPA's Responses''), EPA asked the USACE to conduct another analysis to
further refine the actual disposal capacity needed as compared with the
original dredging needs estimate, taking into consideration EPA's
designation of only one site, past dredging experience, and other
factors, such as the potential for future improvement dredging projects
and extreme storm events, and accounting for consolidation of dredged
material in the disposal site. The USACE's disposal capacity analysis
determined that the necessary capacity was approximately 20 mcy, which
will be just met by the capacity of the ELDS. 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.
    v. Feasibility of Surveillance and Monitoring (40 CFR 228.6(a)(5)).
    Monitoring and surveillance will be feasible at the ELDS. The site
is conducive to monitoring because it is a containment site and
material placed at the site is expected to stay there. The ELDS is
readily accessible for sediment grab, bathymetric, and side-scan sonar
surveys. The nearby NLDS has been successfully monitored by the USACE
over the past 35 years under the DAMOS program. Monitoring of the ELDS
would be carried out under the DAMOS program in accordance with the
current approved Site Management and Monitoring Plan (SMMP) for the
site. In conjunction with the Proposed Rule, EPA and the USACE
developed a draft SMMP and published it for public review and comment.
The agencies have now developed a final SMMP in connection with this
Final Rule. The final SMMP for the ELDS is included as Appendix I of
the FSEIS.
    The SMMP is subject to review and updating at least once every ten
years, if necessary, and may be subject to additional 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 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).
    vi. 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, EPA has
conducted a rigorous assessment of bottom stress, hydrodynamic
processes, and storm-driven wave action at the ELDS. The assessment
included data collection and modeling of disposal of dredged material
under a variety of conditions. The assessment concluded that the area
that encompasses both the ELDS and NLDS has the least amount of bottom
stress compared with the other sites in the eastern Long Island Sound
region that were assessed. This supports EPA's conclusion that the ELDS
provides for the greatest stability of disposal mounds and is the
optimal location for a containment site. See e.g., 40 CFR
228.15(b)(4)(vi)(L)). Consistent with this, past monitoring during
disposal operations at the NLDS (in the vicinity of the ELDS) revealed
minimal drift of sediment out of the disposal site area as it passed
through the water column. EPA expects the same result at the ELDS.
    Disposal site monitoring has confirmed that peak wave-induced
bottom current velocities are not sufficient to cause significant
erosion of dredged material placed at the ELDS. As noted above,
physical oceanographic monitoring and modeling has indicated that the
ELDS is a depositional location that collects, rather than disperses,
sediment. As a result, EPA has determined that the dispersal,
horizontal transport, and vertical mixing characteristics, as well as
the current velocities and directions at the ELDS, all support
designating it as a long-term dredged material disposal site.
    vii. 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 Section V (``Disposal Site
Description''), the ELDS is west of, and adjacent to, the NLDS, which
has received approximately 8.9 mcy (6.7 million m\3\) of dredged
material since 1955. The NLDS was used regularly until the early 2000s
and is still an active site, but it has not been used frequently in
recent years and it will no longer be available for use after December
23, 2016.
    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 Ambro Amendment in 1980 (which was further amended in
1990), 33 U.S.C. 1416(f), 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 the MPRSA in
addition to CWA section 404. These increasingly stringent regulatory
requirements for dredged material disposal, combined with other CWA
requirements that have reduced the level of pollutants being discharged
into the Nation's waterways, have contributed to a steady, measurable
improvement in the quality of material that has been allowed to be
placed at the NLDS over the past 40 years.
    The NLDS has been used since the early 1980s pursuant to the
USACE's short-term site selection authority under section 103(b) of the
MPRSA (33 U.S.C. 1413(b)). In EPA's view, the close proximity of the
NLDS to the ELDS, coupled with past use of the NLDS, generally makes
the ELDS preferable for designation, as compared to more pristine sites
that have either not been used or were used in the more distant past.
See 40 CFR 228.5(e). Using a site in the vicinity of an existing site,
rather than using sites in areas completely unaffected by dredged
material in the past, will help to concentrate, rather than spread, the
footprint of dredged material disposal on the seafloor of Long Island
Sound.
    While the effects of placing suitable dredged material at a
disposal site are primarily limited to short-term physical effects,
such as burying benthic organisms in the location where the material is
placed, EPA regards it to be preferable to concentrate such effects in
particular areas and leave other areas untouched as much as possible.
    That said, EPA's evaluation of data and modeling results indicates
that past disposal operations at the NLDS 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 ELDS.
As part of this conclusion, discussed in detail in Section 5.7 of the
FSEIS, EPA found that there should be no significant adverse cumulative
environmental effects from using the ELDS on a long-term basis for
dredged material disposal in compliance with all applicable regulatory
requirements regarding sediment quality and site usage.
    viii. 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 site could interfere
with any of the uses described above, EPA considered both the effects
of placing dredged material on the bottom of the Sound at the ELDS and
any effects from vessel traffic associated with transporting the
dredged material to the disposal site. 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 the overlap of this criterion with aspects of certain other
criteria. Nevertheless, EPA will address each point below.
    As previously discussed, and in response to public comment, the
eastern boundary of the ELDS has been shifted westward to move it
further from the submarine transit corridor into the Thames River. The
eastern boundary of the ELDS is 0.467 nmi west of the western boundary
of the New London Harbor approach lane and submarine transit corridor,
which will further reduce any potential for conflicts between use of
the disposal site and submarine and deep draft commercial marine
traffic. Vessel traffic generated by disposal activity is expected to
be similar to that which has occurred over the past 20-30 years, which
has not interfered with other shipping activity. Moreover, research by
EPA and the USACE concluded that after disposal at the ELDS, resulting
water depths will be sufficient to permit navigation in the area
without interference. By providing an open-water alternative for
dredged material disposal in the absence of environmentally preferable,
practicable alternatives, the sites are likely to improve and
facilitate navigation in many of the harbors, bays, rivers and channels
around eastern Long Island Sound.
    EPA also carefully evaluated the potential effects on commercial
and recreational fishing for both finfish and shellfish (including
lobster) of designating the ELDS 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 have only short-term,
incidental, and insignificant effects on organisms in the disposal
sites and no appreciable effects beyond the sites. Indeed, since past
dredged material disposal, including at the nearby NLDS, has been
determined to have no significant adverse effects on fishing, the
similar projected levels of future disposal activities at the
designated site also are not expected to have any significant adverse
effects.
    There are four main reasons that EPA concluded that no unacceptable
adverse effects would occur from placing dredged material at the ELDS.
First, as discussed above, any contaminants in material permitted for
disposal--having satisfied the dredged material criteria in the
regulations that restrict any toxicity and bioaccumulation--will not
have any significant adverse effects on fish, shellfish, or other
aquatic organisms. Moreover, because the ELDS is a containment area,
dredged material disposed at the site is expected to remain there.
    Second, as also discussed above, the disposal site does not