20080868 Ver 2_Clarification Memo_20100212

Clarification of the PCS 401 Certification Process by the Director of Water Quality, NC DENR
(1) The National Heritage Program (NHP) currently lists the Bonnerton Hardwood Flats as a
"Nationally Significant Natural Heritage Area." NHP clearly states on its website and in its
policies that its "listings" have no regulatory significance. NHP's decision to identify property
as a Significant Natural Heritage Area is not itself a classification or designation under 15A
NCAC 02H.0506(e). DWQ agrees that NHP's listing does not have strict regulatory
significance, but believes it has the responsibility to consider any listing and information
provided by NHP to make a determination of whether or not the wetlands have exceptional state
or national ecological significance per the language stated in 15A NCAC 02H.0506(e).
Although NHP's listings do not specifically use the language "exceptional state or national
ecological significance," DWQ determined, after subsequent and repeated site visits by DWQ
staff evaluating the site, that the information and listing provided by NHP was pertinent to
application review under this rule and that based upon the uniqueness of the tract, the wetlands,
or parts thereof, were of exceptional state or national ecological significance.
(2) Although "demonstrated public need" was considered by DWQ, it was not formally
evaluated. DWQ determined, in consultation with NHP, that even with some areas of the
Hardwood Flats being impacted, the Bonnerton Hardwood Flats would retain its exceptional
state or national ecological significance. DWQ's informal evaluation of public need found that
the economic impact of not allowing a corridor and additional mining of certain areas of the
Hardwood Flats without a corridor was unwarranted because of the significant cost and public
need to retain the significant employment on the site. DWQ evaluated allowing a corridor
through a narrow portion of the Flat and impacting an isolated section of the Flat, and
determined that such impacts could be permitted while assuring that ecological significance of
the site remained protected. Additionally, a review of the EIS demonstrated that a public need
was provided by the Aurora mine, both nationally as a supply of phosphate rock for agricultural
use and direct human consumption, as well as the economic importance of the mining activity
regionally, in particular, Beaufort County.
(3) 15A NCAC 02H .0506(e) was written in a manner that required DWQ's interpretation and
application of the rule.
(4) DWQ believes that PCS had knowledge of the identification by NHP for the Bonnerton
Hardwood Flats prior to PCS's amendment of the 401 application even though the formal
Biennial Plan of NHP had not been published to the public, and therefore, it was incumbent upon
DWQ to consider the NHP information in its decision making process.
(5) The Sparrow Road site was examined by DWQ in 2005, prior to DWQ's issuance of the 401
Certification. However, DWQ was not informed the area was identified by NHP as Natural
Heritage Area until after the 401 application was received. Based upon field notes from site
visits throughout the project review phase and since the Certification was issued, DWQ
determined that the Sparrow Road site did not fit the criteria as a protected wetland or a wetland
of exceptional state or national ecological significance. The Sparrow Road site's landscape
position, adjacent ditching, which has affected the hydrology of the site, and the relatively high
abundance of early successional trees such as tulip poplar, sweet gum and red maple, resulted in
DWQ's determination that the site did not meet the requirements for consideration under 15 A
NCAC 2H.0506(e).
Coleen H. S ll s
Director
Division of Water Quality
North Carolina Department of
Environment and Natural Resources
Date: L