Regulated Navigation Area, Eagle Harbor, Bainbridge Island, WA

Regulatory History

On February 23, 1999, we published a notice of proposed rulemaking entitled Regulated Navigation Area, Eagle Harbor, Bainbridge Island, WA, in the Federal Register (64 FR 8764). We received two letters commenting on the proposal. No public hearing was requested, and none was held.

Background and Purpose

The Wyckoff/Eagle Harbor Superfund site is located on the East Side of Bainbridge Island, in Central Puget Sound, Washington. The site includes a former 40-acre wood-treating facility, contaminated sediments in adjacent Eagle Harbor, and other upland sources of contamination to the harbor, including a former shipyard. Part of the remediation process for this site consists of covering the contaminated sediments in Eagle Harbor with a layer of clean medium-to-coarse grained sand approximately one-meter (3-feet) thick. This cap is used to isolate contaminants and limit their vertical migration and release into the water column. The cap will also limit the potential for marine organisms to reach the contaminated sediment. This rule establishes a permanent regulated navigation area, which prohibits activities such as anchoring, salvage, or dredging which would disturb the sediment cap covering the contaminated seabed. The regulation does not affect normal transit or navigation of the area. The Wyckoff facility is located on the point of land that forms the southeastern border of Eagle Harbor. The sediment cap includes approximately 2600 feet of shoreline and extends approximately 2800 feet into the harbor. This area is seldom used as an anchorage site as it is in relatively unprotected water near the mouth of the harbor.

Discussion of Comments and Changes

The Coast Guard received two letters commenting on the notice of proposed rulemaking (NPRM). The following paragraphs contain a discussion of comments received and an explanation of changes, if any, to the proposed regulations. Comment: One comment strongly supports the prohibition of dredging and laying of cable, but opposes the prohibition of anchoring. The comment offers the opinion that the purpose of the ban on anchoring is not to preserve the integrity of the clean sediment cap, but rather to support wealthy homeowners wishing to rid the harbor of unsightly vessels. The comment states a concern the rule will establish precedent leading to additional bans on anchoring to conform to the wishes of property owners. Response: We disagree with this comment. It has been clearly stated that the purpose of this rule is to preserve the integrity of a clean sediment cap placed over contaminated seabed as part of the remediation process at a USEPA Superfund site. The dropping and setting of anchors clearly threaten the integrity of the cap. The rule applies only to the area defined by the boundaries of the regulated navigation area. This area is in relatively unprotected water near the mouth of the harbor and seldom used as an anchorage site. Comment: The comment states the area has been commercial property for over one hundred years and is ideally situated for the building of docks, piles to be driven and anchors to be dropped. The comment indicates the rule will make the area totally unusable and commercial use of the entire harbor would be lost. The comment adds that as the area grows, they will need more marine facilities--not less. Response: As previously stated, the rule does not affect normal transit or navigation of the area. The rule includes a waiver process that will permit otherwise prohibited activity if the EPA and the Washington State Department of Natural Resources determine the proposed activity can be performed in a manner that ensures the integrity of the sediment cap. The need for placing and preserving the clean sediment cap has been well established by the USEPA and supported by the Washington State Department of Natural Resources. The listing of the site as a Superfund site and its suitability for future commercial development are outside the scope of this rulemaking and will not be addressed.

Regulatory Evaluation

This rule is not a ``significant regulatory action'' under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not ``significant'' under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. The proposed rule would not affect normal transit or navigation of the area and the only property involved is that of the former Wyckoff facility. The area is not a designated anchorage ground nor special anchorage area and was seldom used as an anchorage site as it is in relatively unprotected water immediately adjacent the harbor entrance.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612.), we considered whether this rule would have a significant economic impact on a substantial number of small entities. ``Small entities'' include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations less than 50,000. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to engage in one of the prohibited activities in the regulated area. This proposed rule would not affect transit or navigation of the area. Rather, it would prohibit activities that would disturb the seabed, such as anchoring, dredging, or laying cable. The area is not a designated anchorage ground nor special anchorage area and was seldom used as an anchorage site as it is relatively unprotected water immediately adjacent the harbor entrance. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

We have analyzed this rule under Executive Order 13132 and have determined that this rule does not have implications for federalism under that Order.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

Taking of Private Property

This rule will not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

Environmental Analysis

The Coast Guard considered the environmental impact of this rule and has concluded that, under figure 2-1, paragraph (34)(g), of COMDTINST M16475.1C, this rule is categorically excluded from further environmental documentation. A Categorical Exclusion is provided for regulations establishing Regulated Navigation Areas. This particular regulated navigation area is proposed for the purpose of preserving the remediation efforts at a USEPA Superfund Site. The rule itself will not cause nor introduce any environmental impacts and will be transparent in all regards except for prohibiting activities which could disturb the seabed within the established boundaries of the site. The USEPA has determined that there will be no significant environmental impact arising from the creation of a RNA designed to protect the sediment cap. The actual placement of the cap in Eagle Harbor was determined by USEPA to provide an environmental benefit to the area by allowing organisms to colonize the clean sediments of the cap (``The Proposed Plan for Cleanup of Eagle Harbor''--December 16, 1991). USEPA's authority to place the cap is expressed in a publicly available document known as a ``Removal Action Memorandum'' dated June 15, 1993, and additional information is available at the Marine Safety Office at the address under ADDRESSES.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation (water), Reports and recordkeeping requirements, Security measures, Waterways.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

1. The authority citation for part 165 continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1 (g), 6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.

2. A new Sec. 165.1309 is added to read as follows:

Sec. 165.1309 Eagle Harbor, Bainbridge Island, WA.

(a) Regulated area. A regulated navigation area is established on that portion of Eagle Harbor bounded by a line beginning at: 47 deg. 36' 56'' N, 122 deg. 30' 36'' W; thence to 47 deg. 37' 11'' N, 122 deg. 30' 36'' W; thence to 47 deg. 37' 25'' N, 122 deg. 30' 17'' W; thence to 47 deg. 37' 24'' N, 122 deg. 30' 02'' W; thence to 47 deg. 37' 16'' N, 122 deg. 29' 55'' W; thence to 47 deg. 37' 03'' N, 122 deg. 30' 02'' W; thence returning along the shoreline to point of origin. [Datum NAD 1983]. (b) Regulations. All vessels and persons are prohibited from anchoring, dredging, laying cable, dragging, seining, bottom fishing, conducting salvage operations, or any other activity which could potentially disturb the seabed in the designated area. Vessels may otherwise transit or navigate within this area without reservation. (c) Waiver. The Captain of the Port, Puget Sound, upon advice from the U.S. EPA Project Manager and the Washington State Department of Natural Resources, may, upon written request, authorize a waiver from this section if it is determined that the proposed operation supports USEPA remedial objectives, or can be performed in a manner that ensures the integrity of the sediment cap. A written request must describe the intended operation, state the need, and describe the proposed precautionary measures. Requests should be submitted in triplicate, to facilitate review by U.S. EPA, Coast Guard, and Washington State Agencies. USEPA managed remedial design, remedial action, habitat mitigation, or monitoring activities associated with the Wyckoff/Eagle Harbor Superfund Site are excluded from the waiver requirement. USEPA is required, however, to alert the Coast Guard in advance concerning any of the above-mentioned activities that may, or will, take place in the Regulated Area.

Dated: December 15, 1999. Paul M. Blayney, Rear Admiral, USCG 13th District Commander. [FR Doc. 99-33581 Filed 12-27-99; 8:45 am] BILLING CODE 4910-15-U