Regulated Navigation Area, Eagle Harbor, Bainbridge Island, WA

DEPARTMENT OF TRANSPORTATION

Coast Guard

33 CFR Part 165

RIN 2115-AE84

[CGD13-98-004]

Regulated Navigation Area, Eagle Harbor, Bainbridge Island, WA

AGENCY: Coast Guard, DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a permanent regulated

navigation area on a portion of Eagle Harbor, Bainbridge Island,

Washington. This regulated navigation area is required to preserve the

integrity of a clean sediment cap placed over contaminated seabed as

part of the remediation process at a U.S. Environmental Protection

Agency (USEPA) Superfund site. It is being established at the request

of the USEPA and the Washington State Department of Natural Resources.

It prohibits activities that would disturb the seabed, such as

anchoring, dredging, or laying cable, with the exception of EPA managed

remedial design, remedial action, habitat mitigation, or monitoring

activities associated with the Wyckoff/Eagle Harbor Superfund Site. It

would not affect transit or navigation of the area.

DATES: Effective: January 27, 2000.

ADDRESSES: Unless otherwise indicated, comments and material received

from the public, as well as documents referred to in this preamble, are

part of docket CGD13-98-004 and are available for inspection or copying

at U.S. Coast Guard Marine Safety Office Puget Sound, 1519 Alaskan Way

South, Building 1, Seattle, Washington 98134. Normal office hours are

between 7 a.m. and 5 p.m., Monday through Friday, except federal

holidays.

FOR FURTHER INFORMATION CONTACT: LT Paul M. Stocklin, Jr., c/o Captain

of the Port Puget Sound, 1519 Alaskan Way South, Seattle, Washington

98134, (206) 217-6232.

SUPPLEMENTARY INFORMATION:

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.

[[Page 72560]]

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.

[[Page 72561]]

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