Appendix A to Part 148 - Environmental Review Criteria for Deepwater Ports

I. Authority. The Deepwater Port Act of 1974, Pub. L. 93-627 (33 USC 1501 et seq.), authorizes the Secretary of Transportation to issue, transfer, amend, or renew a license for the ownership, construction, and operation of a deepwater port. Section 6 of the Act requires the Secretary to establish environmental review criteria which shall be used to evaluate a deepwater port as proposed in an application for a license. By amendment of Part 1 of Title 49, Code of Federal Regulations (49 CFR 1.46(t)), dated April 25, 1975, the Secretary delegated to the Commandant of the Coast Guard the responsibility to establish such criteria (40 FR 20088-20089). (49 CFR 1.46(t) is presently redesignated as 49 CFR 1.46(s) (40 FR 43901-43906)).

Section 6 of the Act reads as follows:

Sec. 6. (a) The Secretary, in accordance with the recommendations of the Administrator of the Environmental Protection Agency and the Administrator of the National Oceanic and Atmospheric Administration and after consultation with any other Federal departments and agencies having jurisdiction over any aspect of the construction or operation of a deepwater port, shall establish, as soon as practicable after the date of enactment of this Act, environmental review criteria consistent with the National Environmental Policy Act. Such criteria shall be used to evaluate a deepwater port as proposed in an application, including:

(1) the effect on the marine environment;

(2) the effect on oceanographic currents and wave patterns;

(3) the effect on alternate uses of the oceans and navigable waters, such as scientific study, fishing, and exploitation of other living and nonliving resources;

(4) the potential dangers to a deepwater port from waves, winds, weather, and geological conditions, and the steps which can be taken to protect against or minimize such dangers;

(5) effects of land-based developments related to deepwater port development;

(6) the effect on human health and welfare; and

(7) such other considerations as the Secretary deems necessary or appropriate.

(b) The Secretary shall periodically review and, whenever necessary, revise in the same manner as originally developed, criteria established pursuant to subsection (a) of this section.

(c) Criteria established pursuant to this section shall be developed concurrently with the regulations in section 5(a) of this Act and in accordance with the provisions of that subsection.

II. Purpose. A. Environmental review criteria shall be used to evaluate a deepwater port as proposed in an application for a license to own, construct and operate a deepwater port. The criteria shall be consistent with the National Environmental Policy Act, Pub. L. 91-190 (42 USC 4321 et seq.), which declares a national environmental policy. The Secretary of Transportation may issue a license in accordance with the provisions of the Act if, among other things, he determines:

—that the construction and operation of the deepwater port will be in the national interest and consistent with national security and other national policy goals and objectives, including energy sufficiency and environmental quality; and

—in accordance with the environmental review criteria established pursuant to section 6 of the Act, that the applicant has demonstrated that the deepwater port will be constructed and operated using the best available technology to prevent or minimize adverse impact on the environment. (Sections 4(c)(3) & (5) of the Act.)

These criteria are therefore intended to be used to evaluate the environmental soundness of a proposed deepwater port and to serve as basic guidelines for determining what environmental impacts could result from deepwater port development and the procedures and technology which can be used to prevent or minimize adverse impacts.

B. In accordance with section 5(f) of the Act, these criteria shall also be considered in the preparation of a single, detailed environmental impact statement for all timely applications covering a single application area. Additionally, section 5(i)(3) of the Act specifies that, in the event more than one application is submitted for an application area, the criteria shall be used, among other factors, in determining whether any one proposed deepwater port clearly best serves the national interest.

III. Environmental review criteria. The environmental review of a proposed deepwater port consists of two parts. The first part involves assessment of the probable negative and positive environmental impacts which will result from construction and operation of the port. The second part appriases the effort made by the applicant to prevent or minimize adverse environmental effects. Guidelines for such an effort are set forth and will be closely considered in the review.

The overall intent of this review is to arrive at a comprehensive evaluation of the significance of the discrete and cumulative environmental impacts, adverse and beneficial, of the project as proposed and to determine whether or not the applicant has demonstrated that the deepwater port will be constructed and operated using the best available technology, so as to prevent or minimize adverse impact on the marine environment.

A. The proposed deepwater port will be evaluated to assess the magnitude and importance of its probable negative and positive environmental impacts. This review will include comparison with reasonable alternative actions, such as: the no-action case (alternative transportation schemes for imported oil); alternative sites, designs, and systems; and other deepwater ports. The information necessary for such an evaluation will be provided by the Federal Environmental Impact Statement and other sources as necessary. A picture of the relative net environmental impact of the proposed project should be obtained. Also, identification of actions which might be taken with respect to procedures and technology to prevent or minimize probable adverse effects will be made. The following are the primary areas of concern:

1. The Effect on the Marine Environment:

(Note: The term “marine environment” includes the navigable waters (including the lands therein and thereunder) and the adjacent shorelines (including the waters therein and thereunder); transitional and intertidal areas, bays, lagoons, salt marshes, estuaries, beaches, waters of the contiguous zone, waters of the high seas; the fish, wildlife and other living resources thereof; and the recreational and scenic values of such lands, waters and resources.)

a. The potential effects of surface and bottom disturbances and increased turbidity both directly on ecological habitats and on the life stages of biological populations and indirectly on such habitats and populations through modifications of the physical, geological, and/or chemical environment.

b. The potential effects of pollutants, especially oil, on ecological habitats and the life stages of biota.

c. The potential effects on threatened or endangered species and on ecosystems.

2. The Effect on Oceanographic Currents and Wave Patterns:

a. The potential primary effects of construction and operation on,

i. surface, midwater and bottom currents,

ii. waves,

iii. tides and tidal currents, especially in constricted coastal areas and estuaries,

iv. ice;

b. The potential secondary impacts of changes to current and wave patterns on sand and sediment transport, turbidity, beach processes, salinity and sedimentation rates resulting from changes to current, wave and tide patterns; and, the resulting impacts on biological systems, on shorelines and beaches, and on their alternate uses.

3. The Effects on Alternate Uses of the Oceans and Navigable Waters:

a. Scientific study;

b. Fishing (commercial and recreational);

c. Exploitation of other living and non-living resources;

d. Sanctuary maintenance;

e. Recreation;

f. Approved costal zone management plans;

g. Power generation;

h. Transportation;

i. Other commercial, industrial or public uses and the national defense.

4. The Potential Environmental Dangers to a Deepwater Port;

a. From waves, winds, weather, and geological conditions;

b. The steps which can be taken to minimize such dangers with respect to,

i. siting,

ii. design,

iii. construction,

iv. operations and procedures.

5. The Effects of Land-Based Developments Related to Deepwater Port Development on:

a. Stream and river flow, ground and surface water quality and supplies;

b. Marine water quality;

c. Air quality;

d. Alternate land and water uses,

i. wetlands,

ii. habitats,

iii. nurseries,

iv. recreation,

v. wilderness, preserves, and wild and scenic rivers,

vi. existing and proposed sanctuaries,

vii. historical and cultural areas,

viii. open and green space,

ix. agricultural and grazing,

x. residential and commercial,

xi. industrial,

xii. transportation,

xiii. power generation and transmission,

xiv. others.

6. The Effect on Human Health and Welfare:

a. Health:

i. the physiological effects of reduced or altered air and water quality or supply, of altered or increased noise levels or quality, of altered community density, etc., and the psychological effects of the above;

ii. the risk of human safety and life posed by a proposed project.

b. Welfare—the ultimate effects of dynamic economic and social change inflicted directly or induced upon the relevant communities, including but not limited to the projected changes in employment, population density, housing and public services, and tax base.

B. In this second part, the proposed project will be appraised for the effort made to prevent or minimize the probable adverse impacts on the environment. This appraisal is primarily concerned with the project as proposed and alternatives are relevant only insofar as they may represent a spectrum of possible actions against which the proposal will be judged. Areas of concern are: siting, design, construction, and operation; and, land use and coastal zone management. Specifically, the review will consider the degree of adherence to the following guidelines.

1. Siting— A proposed deepwater port should be sited in an optimum location in order to prevent or minimize possibly detrimental environmental effects. For example:

a. The deepwater port and all its components, including receiving terminals, inline transportation facilities and stations, ancillary and service facilities, and pipeline, should occupy the minimum space necessary for safe and efficient operation and should be located, as much as possible, in areas in which permanent alteration of wetlands is not necessary. Buffer zones should be provided to separate onshore facilities from incompatible adjacent land uses.

b. The deepwater port facility and its offshore components should be located in areas which have stable sea-bottom characteristics and, its onshore components should be located in areas in which a stable foundation can be developed and flood protection levees, if appropriate, can be constructed.

c. The deepwater port facility should be located in an area where existing offshore structures and activities will not interfere with its safe operation, and where the facility or navigation to and from that facility, will not interfere with the safe operation of existing offshore structures. Water depths and currents in and around the deepwater port and its approaches should pose no undue hazard to safe navigation. Extensive dredging or removal of natural obstacles such as reefs, should be avoided. The siting procedure should select an area where projected weather, wave conditions, and seismic activity minimize the probability that damage will occur to the deepwater port, tankers, pipeline, and component shoreside facilities from storms, earthquakes, or other natural hazards.

d. Selection of sites should maximize the permitted use of existing work areas, facilities and access routes for construction and operations activities. Where temporary work areas, facilities, or access routes must be used, they should be to the fullest extent possible, designed and constructed in such a manner to permit restoration to the preconstruction environmental conditions or better.

e. The deepwater port facility, navigational fairway(s) and pipelines should be sited where the interactions of facilities’ requirements and natural environment are optimized to prevent adverse impacts or to produce minimal, acceptably low adverse effects. Key factors in assessments should include (but not necessarily be limited to) projected winds, waves, current, spill size and frequency, cleanup capability, shoreline/estuarine/bay sensitivity; biological resources, damage potential and recovery rate; facility design; and project economics.

f. The deepwater port, pipeline, and attendant facilities should be located as far as practicable from the vicinity of critical habitats for biota, including but not limited to commercial and sports fisheries and threatened and endangered species.

g. Sites should reflect negligible displacement of existing or potentially important uses such as the following:

i. fisheries,

ii. recreation,

iii. mining,

iv. oil and gas production,

v. transportation.

h. Siting should favor areas already allocated for similar use and the implications of density of such uses.

i. port facilities—existing tanker and barge traffic—existing ports which can be used for service vessels.

ii. pipelines—use of existing corridors.

iii. secondary facilities—use of (or expansion of) existing storage, refinery, and other support facilities.

iv. construction facilities—use of existing equipment and personnel staging yards.

i. The deepwater port, pipelines and other offshore facilities should be sited so as to not permanently interfere with the natural littoral process or to alter significantly any tidal pass or other part of the physical environment important to natural currents and wave patterns.

j. Pipelines, or other deepwater port components or facilities requiring dredging, should not be located where sediments with high levels of heavy metals, biocides, oil, or other pollutants or hazardous materials exist.

2. Design, Construction and Operation— Selection of design and procedures for construction and operation of a deepwater port must reflect use of best available technology. For example:

a. All oil transfer, transportation, and storage facilities, systems and equipment should include appropriate safeguards and backup systems and/or be operated under procedures to minimize both the possibility of pollution incidents resulting from personnel and equipment failures, natural calamities and casualties, such as tanker collisions or groundings, and the adverse effects of those pollution incidents which occur. These facilities, systems, and equipment, should be designed to permit safe operation, including appropriate safety margins, under maximum operating loads and the most adverse operating conditions to which each may be subjected.

b. All facilities should be provided with a safe, environmentally sound method for the collection, storage, and disposal of solid and liquid wastes generated by such facilities. When prescribed by law or regulation, the deepwater port may be required to be fitted with additional facilities for the collection and treatment of ship-generated liquid and solid wastes, such as oily bilge and oily ballast water, tank cleaning residues, sludge wastes, and sewage and garbage.

c. The proposed project should be designed, constructed and operated so as not to interfere permanently with natural littoral processes or other significant aspects of currents and wave patterns. Additionally, harmful erosion or accretion, both onshore and offshore, should be prevented. Groundwater drawdown or saltwater intrusion should not be permitted. Moreover, mixing of salt, brackish, and fresh waters should be minimized. Designs should not include factors which will disrupt natural sheetflow, water flow, and drainage patterns or systems.

d. The proposed project should not interfere with biotic populations. Potential effects on breeding habitats or migration routes should receive particular attention.

e. The proposed project should be designed, constructed and operated so as to make maximum feasible use of already existing local facilities such as roads, pipelines, docking facilities and communications facilities.

f. Disposal of spoil and refuse material should be effected only at disposal sites specifically selected and approved by competent authorities. Whenever and wherever possible, the proposal should provide for resource recovery, reclamation of affected areas, or enhancing uses of spoil and waste.

g. Personnel trained in oil spill prevention should be present at critical points at the deepwater port (as identified in the accident analysis). Personnel should also be trained in oil spill control to mitigate the effects of any spill which may occur.

3. Land Use and Coastal Zone Management— A deepwater port should not conflict with existing or planned land use including management of the coastal region. A measure of whether or not conflict exists will be made by the following means:

a. The proposed project should adhere closely to approved master plans or other plans of competent local or State authorities in designated adjacent coastal States or in other States where significant effects are likely to occur. A minimum of special exceptions or zoning variances should be required. Non-conforming uses should not be prolonged where reasonable alternatives are available.

b. The proposed project should conform with approved or planned coastal zone management programs of the relevant adjacent coastal States.

c. The proposed use of floodplains should not entail loss of wetlands nor should such use pose an undue risk of exposure of that use to flood damage, increase the potential need for Federal expenditures for flood protection or flood disaster relief, decrease the unique public value of the floodplain as an environmental resource, or provide an incentive for other uses of the floodplains having similar ultimate results.

(d) The use of or effect on wetlands should be considered in the following manner,

i. uses permanently altering or adversely affecting wetlands are to be avoided, or

ii. positive action must be taken to minimize adverse effects on wetlands.

annex a

1. The following environmental criteria are expressly referred to in the Deepwater Port Act of 1974:

a. Compliance with the Clean Air Act (4(c)(6)).

b. Compliance with the Federal Water Pollution Control Act (4(c)(6)).

c. Compliance with the Marine Protection, Research and Sanctuaries Act (4(c)(6)).

d. Effect on the marine environment (6(a)(1)).

e. Effect on oceanographic currents and wave patterns (6(a)(2)).

f. Effect on alternate uses of the oceans and navigable water, such as scientific study, fishing, and exploitation of other living and nonliving resources (6(a)(3)).

g. The potential dangers to a deepwater port from waves, wind, weather and geological conditions, and the steps which can be taken to protect against or minimize such dangers (6(a)(4)).

h. Effects of land-based developments related to deepwater port development (6(a)(5)).

i. Effect on human health and welfare (6(a)(6)).

j. Consistency with adjacent coastal States’ programs relating to environmental protection, land and water use, and coastal zone management (9(b)).

k. Development of an approved coastal zone management program pursuant to the Coastal Zone Management Act of 1972 in the area to be directly and primarily impacted by deepwater port land and water development in the coastal zone of that State directly connected by pipeline to the proposed deepwater port (9(c)).

l. Pursuant to section 102(c)(2) of the National Environmental Policy Act, prepare a single, detailed environmental impact statement for each application area (5(f)).