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e-CFR data is current as of April 8, 2021

Title 33Chapter ISubchapter NNPart 148 → Subpart G


Title 33: Navigation and Navigable Waters
PART 148—DEEPWATER PORTS: GENERAL


Subpart G—Environmental Review Criteria for Deepwater Ports


Contents
§148.700   How does the Deepwater Port Act interact with other Federal and State laws?
§148.702   How were the environmental review criteria developed?
§148.705   What is determined by the environmental evaluation?
§148.707   What type of criteria will be used in an environmental review and how will they be applied?
§148.708   Must the applicant's proposal reflect potential regulations?
§148.709   How are these criteria reviewed and revised?
§148.710   What environmental conditions must be satisfied?
§148.715   How is an environmental review conducted?
§148.720   What are the siting criteria?
§148.722   Should the construction plan incorporate best available technology and recommended industry practices?
§148.725   What are the design, construction and operational criteria?
§148.730   What are the land use and coastal zone management criteria?
§148.735   What are other critical criteria that must be evaluated?
§148.737   What environmental statutes must an applicant follow?

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§148.700   How does the Deepwater Port Act interact with other Federal and State laws?

(a) Nothing in this subpart supersedes any Federal, tribal, or State requirements for the protection of the environment.

(b) The applicant must prepare and submit applications to each respective agency that requires a permit or license to operate the deepwater port.

(c) A list of Federal and State agencies that require certification includes, but is not limited to:

(1) The Environmental Protection Agency, for Clean Air Act and Clean Water Act permits;

(2) The Pipeline and Hazardous Materials Safety Administration, Office of Pipeline Safety; and

(3) The Bureau of Ocean Energy Management (BOEM); or

(4) Both the Office of Pipeline Safety and BOEM for pipeline approvals, and the appropriate State environmental agency or permitting agency.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.702   How were the environmental review criteria developed?

Under 33 U.S.C. 1505, the Commandant (CG-5P) must establish environmental review criteria for use in evaluating a proposed deepwater port. In developing these criteria, the Coast Guard considers the requirements for compliance with Federal and State mandates for the protection of the environment contained in, but not limited to, such guidance as published by:

(a) The Council on Environmental Quality in 40 CFR parts 1500-1508;

(b) Department of Homeland Security Directive 023-01, Environmental Planning Program; and

(c) The Coast Guard in Commandant Instruction M16475.1 (series), National Environmental Policy Act Implementing Procedures and Policy for Considering Environmental Impacts.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.705   What is determined by the environmental evaluation?

(a) The environmental criteria to be used in evaluating a license application are established by general consensus of expertise, scientific opinion, public interest, and institutional requirements, such as laws and regulations established for the protection of the environment. Criteria that may be established in future environmental regulations or other requirements to protect the environment will also be used.

(b) The environmental criteria to be used in evaluating a license application are applied to all relevant aspects of:

(1) The construction, operation, and decommissioning phases of a deepwater port;

(2) The operations of the vessels that serve the deepwater port;

(3) The deepwater port's servicing and support activities;

(4) Shore-based construction and fabrication sites;

(5) Shoreside supporting facilities, if appropriate, for the proposed location; and

(6) The No Action alternative and other reasonable alternatives.

(c) The criteria are also applied in a manner that takes into account the cumulative effects of other reasonably foreseeable actions as outlined in §148.705.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.707   What type of criteria will be used in an environmental review and how will they be applied?

(a) The license application will be reviewed for the deepwater port's effects on the environment and for the environment's effects on the deepwater port and any of its shoreside support facilities.

(b) The environmental evaluation will be applied to the phases of construction, operation, and decommissioning of the proposed location, and at least one alternative site. The evaluation will determine:

(1) The effect on the environment, including but not limited to:

(i) Impacts on endangered species;

(ii) Essential fish habitat;

(iii) Marine sanctuaries;

(iv) Archaeological, cultural and historic sites;

(v) Water and air;

(vi) Coastal zone management;

(vii) Coastal barrier resources; and

(viii) Wetlands and flood plains.

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

(3) The potential risks to a deepwater port from waves, winds, weather, and geological conditions, and the steps that can be taken to protect against or minimize these dangers; and

(4) The effect on human health and welfare, including socioeconomic impacts, environmental justice and protection of children from environmental health and safety risks.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.708   Must the applicant's proposal reflect potential regulations?

Although a regulation is of no effect until it has been officially promulgated, to minimize the subsequent impact that potential regulations may have on a licensee, an applicant can and should reflect reasonably foreseeable environmental regulations in planning, operating, and decommissioning a deepwater port.

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§148.709   How are these criteria reviewed and revised?

The Commandant (CG-5P) periodically reviews and may revise these criteria. Reviews and revisions are conducted in accordance with §148.705 of this subpart. The criteria established are consistent with the National Environmental Policy Act.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.710   What environmental conditions must be satisfied?

(a) MARAD may issue a license to construct a deepwater port under the Act, with or without conditions, if certain specified conditions are met. The relevant environmental considerations include, but are not limited to, the following:

(1) Construction and operation of the deepwater port that will be in the national interest and consistent with national security and other national policy goals and objectives, including energy sufficiency, environmental quality, protection from the threat of terrorist attack and other subversive activity against persons and property on the deepwater port and the vessels and crews calling at the deepwater port; and

(2) Under the environmental review criteria in §148.707 of this subpart, the applicant has demonstrated that the deepwater port will be constructed, operated, and decommissioned using the best available technology to prevent or minimize adverse impacts on the marine environment (33 U.S.C. 1503(c)(3), 1504(f) and 1505(a)(1)).

(b) Under 33 U.S.C. 1504(f), these criteria in §148.707 of this part must be considered in the preparation of a single detailed environmental impact statement or environmental assessment for all timely applications covering a single application area. Additionally, 33 U.S.C. 1504(i)(3) specifies that if more than one application is submitted for an “application area,” as defined in 33 U.S.C. 1504(d)(2), the criteria must be used, among other factors, in determining whether any one proposed deepwater port for oil clearly best serves the national interest.

(c) In accordance with 40 CFR 1502.9, the Commandant (CG-5P) will prepare a supplement to a final environmental impact statement if there is significant new information or circumstances relevant to environmental concerns and bearing on the deepwater port and related activities affecting its location site, construction, operation or decommissioning.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.715   How is an environmental review conducted?

The environmental review of a proposed deepwater port and reasonable alternatives consists of Federal, tribal, State, and public review of the following two parts:

(a) An evaluation of the proposal's completeness of environmental information and quality of assessment, probable environmental impacts, and identification of procedures or technology that might mitigate probable adverse environmental impacts through avoiding, minimizing, rectifying, reducing, eliminating, or compensating for those impacts; and

(b) An evaluation of the effort made under the proposal to mitigate its probable environmental impacts. This evaluation will assess the applicant's consideration of the criteria in §§148.720 through 148.740 of this subpart.

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§148.720   What are the siting criteria?

In accordance with §148.715(b), the proposed and alternative sites for the deepwater port will be evaluated on the basis of how well each:

(a) Optimizes location to prevent or minimize detrimental environmental effects;

(b) Minimizes the space needed for safe and efficient operation;

(c) Locates offshore components in areas with stable sea bottom characteristics;

(d) Locates onshore components where stable foundations can be developed;

(e) Minimizes the potential for interference with its safe operation from existing offshore structures and activities;

(f) Minimizes the danger posed to safe navigation by surrounding water depths and currents;

(g) Avoids extensive dredging or removal of natural obstacles such as reefs;

(h) Minimizes the danger to the deepwater port, its components, and tankers calling at the deepwater port from storms, earthquakes, or other natural hazards;

(i) Maximizes the permitted use of existing work areas, facilities, and access routes;

(j) Minimizes the environmental impact of temporary work areas, facilities, and access routes;

(k) Maximizes the distance between the deepwater port, its components, and critical habitats including commercial and sport fisheries, threatened or endangered species habitats, wetlands, flood plains, coastal resources, marine management areas, and essential fish habitats;

(l) Minimizes the displacement of existing or potential mining, oil, or gas exploration and production or transportation uses;

(m) Takes advantage of areas already allocated for similar use, without overusing such areas;

(n) Avoids permanent interference with natural processes or features that are important to natural currents and wave patterns; and

(o) Avoids dredging in areas where sediments contain high levels of heavy metals, biocides, oil or other pollutants or hazardous materials, and in areas designated wetlands or other protected coastal resources.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.722   Should the construction plan incorporate best available technology and recommended industry practices?

Each applicant must submit a proposed construction plan. It must incorporate best available technology and recommended industry practices as directed in §148.730 of this part.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.725   What are the design, construction and operational criteria?

In accordance with §148.715(b) of this part, the deepwater port proposal and reasonable alternatives will be evaluated on the basis of how well they:

(a) Reflect the use of best available technology in design, construction procedures, operations, and decommissioning;

(b) Include safeguards, backup systems, procedures, and response plans to minimize the possibility and consequences of pollution incidents such as spills and discharges, while permitting safe operation with appropriate safety margins under maximum operating loads and the most adverse operating conditions;

(c) Provide for safe, legal, and environmentally sound waste disposal, resource recovery, affected area reclamation, and enhanced use of spoil and waste;

(d) Avoid permanent interference with natural processes or features that are important to natural currents and wave patterns;

(e) Avoid groundwater drawdown or saltwater intrusion, and minimizes mixing salt, fresh, and brackish waters;

(f) Avoid disrupting natural sheet flow, water flow, and drainage patterns or systems;

(g) Avoid interference with biotic populations, especially breeding habitats or migration routes;

(h) Maximize use of existing facilities;

(i) Provide personnel trained in oil spill prevention at critical locations identified in the accident analysis;

(j) Provide personnel trained in oil spill mitigation; and

(k) Plan for safe and effective removal of the deepwater port in the event of its decommissioning.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.730   What are the land use and coastal zone management criteria?

In accordance with §148.715(b) of this part, the deepwater port proposal and reasonable alternatives will be evaluated on the basis of how well they:

(a) Accord with existing and planned land use, including management of the coastal region, for which purpose the proposal must be accompanied by a consistency determination from appropriate State agencies for any designated Adjacent Coastal State;

(b) Adhere to proposed local and State master plans;

(c) Minimize the need for special exceptions, zoning variances, or non-conforming uses;

(d) Plan flood plain uses in ways that will minimize wetlands loss, flood damage, the need for federally-funded flood protection or flood relief, or any decrease in the public value of the flood plain as an environmental resource; and

(e) Avoid permanent alteration or harm to wetlands, and take positive steps to minimize adverse effects on wetlands.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.735   What are other critical criteria that must be evaluated?

In accordance with §148.715(b) of this part, the deepwater port proposal and reasonable alternatives will be evaluated on the basis of how well they:

(a) Avoid detrimental effects on human health and safety;

(b) Pose no compromise to national security;

(c) Account for the historic, archeological, and cultural significance of the area, including any potential requirements for historical preservation;

(d) Minimize harmful impacts to minorities and children; and

(e) Plan for serious consideration of the proposal that offers the least potential for environmental harm to the region, or potential mitigation actions, when conflict exists between two or more proposed uses for a site.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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§148.737   What environmental statutes must an applicant follow?

In constructing and operating a deepwater port, the deepwater port must comply with all applicable Federal, State, and tribal environmental statutes. For the purposes of information, a list of Federal environmental statutes and Executive Orders (E.O.s) that may apply includes but is not limited to: Abandoned Shipwreck Act (ASA), 43 U.S.C. 2102, et. seq.; American Indian Religious Freedom Act (AIRFA), 42 U.S.C. 1996, et. seq.; Antiquities Act, 16 U.S.C. 433, et. seq.; Archeological and Historic Preservation Act (AHPA), 16 U.S.C. 469; Archeological Resources Protection Act (AHPA), 16 U.S.C. 470 aa-ll, et. seq.; Architectural Barriers Act, 42 U.S.C. 4151, et. seq.; Clean Air Act (CAA), Pub. L. 95-95, 42 U.S.C. 7401, et. seq.; Clean Water Act of 1977 (CWA), Pub. L. 95-217, 33 U.S.C. 1251, et. seq.; Coastal Barrier Resources Act (CBRA), Pub. L. 97-348, 16 U.S.C. 3510, et. seq.; Coastal Zone Management Act (CZMA), Pub. L. 92-583, 16 U.S.C. 1451, et. seq.; Community Environmental Response Facilitation Act (CERFA), 42 U.S.C. 9620, et. seq.; Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), also commonly referred to as Superfund, Pub. L. 96-510, 26 U.S.C. 4611, et. seq.; Consultation and Coordination With Indian Tribal Governments, E.O. 13175, 65 FR 67249; Coral Reef Protection, E.O. 13089, 63 FR 32701; Department of Transportation Act, Section 4(f), Pub. L. 89-670, 49 U.S.C. 303, Section 4(f), et. seq.; Emergency Planning and Community Right-to-Know Act, 42 U.S.C. 11001-11050, et. seq.; Endangered Species Act of 1973 (ESA), Pub. L. 93-205, 16 U.S.C. 1531, et. seq.; Energy Efficiency and Water Conservation at Federal Facilities, E.O. 12902, 59 FR 11463; Environmental Effects Abroad of Major Federal Agencies, E.O. 12114, 44 FR 1957; Environmental Quality Improvement Act, Pub. L. 98-581, 42 U.S.C. 4371, et. seq.; Farmlands Protection Policy Act, Pub. L. 97-98, 7 U.S.C. 4201, et. seq.; Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, E.O. 12898, 59 FR 7629; Federal Compliance with Pollution Control Standards, E.O. 12088, 43 FR 47707; Federal Insecticide, Fungicide, and Rodenticide Act, Pub. L. 86-139, 7 U.S.C. 135, et. seq.; Federal Records Act (FRA), 44 U.S.C. 2101-3324, et. seq.; Federalism, E.O. 13083, Fish and Wildlife Act of 1956, Pub. L. 85-888, 16 U.S.C. 742, et. seq.; Fish and Wildlife Coordination Act, (Pub. L. 85-624, 16 U.S.C. 661, et. seq.; Fisheries Conservation and Recovery Act of 1976, Pub. L. 94-265, 16 U.S.C. 1801, et. seq.; Flood Disaster Protection Act, 42 U.S.C. 4001, et. seq.; Flood Plain Management and Protection, E.O. 11988, 42 FR 26951; Greening the Government Through Leadership in Environmental Management, E.O. 13148, 65 FR 24595; 63 FR 49643; Historic Sites Act, 16 U.S.C. 46, et. seq.; Indian Sacred Sites, E.O. 13007, 61 FR 26771; Intergovernmental Review of Federal Programs E.O. 12372, 47 FR 30959; Invasive Species, E.O. 13112, 64 FR 6183; Locating Federal Facilities on Historic Properties in our Nation's Central Cities, E.O. 13006, 61 FR 26071; Magnuson-Stevens Fishery Conservation and Management Act as amended through October 11, 1996, 16 U.S.C. 1801, et. seq.; Marine Mammal Protection Act of 1972 (MMPA), Pub. L. 92-522, 16 U.S.C. 1361; Marine Protected Areas, E.O. 13158, 65 FR 24909; Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. 92-532, 16 U.S.C. 1431, et. seq. and 33 U.S.C. U.S.C. 1401, et. seq.; Migratory Bird Treaty Act, 16 U.S.C. 703-712, et. seq.; National Environmental Policy Act of 1969 (NEPA), Pub. L. 91-190, 42 U.S.C. 4321, et. seq.; National Historic Preservation Act of 1996 (NHPA), Pub. L. 89-665, 16 U.S.C. 470, et. seq.; Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3001, et. seq.; Noise Control Act of 1972, Pub. L. 92-574, 42 U.S.C. 4901, et. seq.; Pollution Prevention Act of 1990 (PPA), 42 U.S.C. 13101-13109, et. seq.; Protection and Enhancement of Cultural Environmental Quality, E.O. 11593, 36 FR 8921; Protection and Enhancement of Environmental Quality, E.O. 11514, 35 FR 4247; Protection of Children from Environmental Health and Safety Risks, E.O. 13045, 62 FR 19885; Protection of Wetlands, E.O. 11990, 42 FR 26961; Recreational Fisheries, E.O. 12962, 60 FR 307695; Resource Conservation and Recovery Act of 1976 (RCRA), Pub. L. 94-580, 42 U.S.C. 6901, et. seq.; Responsibilities of Federal Agencies to Protect Migratory Birds, E.O. 13186, 66 FR 3853; Safe Drinking Water Act (SDWA), Pub. L. 93-523, 42, U.S.C. 201, et. seq.; Toxic Substances Control Act (TSCA), 7 U.S.C. 136, et. seq.; and Wild and Scenic Rivers Act, Pub. L. 90-542, 16 U.S.C. 1271, et. seq.

[USCG-1998-3884, 71 FR 57651, Sept. 29, 2006, as amended by USCG-2013-0397, 78 FR 39178, July 1, 2013]

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