19920039 Ver 1_Court Case Correspondence_20111027

S'TA'TE OF NORTH CAROLINA
COUNTY OF BEAUFOR'r
PCS PHOSPHATE COMPANY, INC.,
Petitioner,
V.
NORTH CAROLINA DEPARTMENT Ol"
ENVIRONMENT AND NATURAL
RESOURCES,
Respondent
q, 1X)39
IN THl O1"FICI; OI`
ADMINISTRATIVE IIFAR1NGS
11 E11R 14028
SETTLEMENT AGREEMENT
AND WITHDRAWAL, OF 11FTITION
The North Carolina Department of Environment and Natural IZCSOLH-ces ('•IZespondenl -I
and PCS Phosphate Company, Inc. ( "Petitioner "), pursuant to North Carolina Gen. Stat.
15013- 31(b), hereby enter into this Settlement Agreement ("Agreement "). This matter arose out
of a letter from the Department of Environment and Natural Resources, Division of Water
Quality ("DWQ Letter') that determines the PCS Whitchurst Creek mitigation site has tailed
and directs PCS to therefore modify the site or pursue stream mitigation at another location. The
DWQ letter was received by PCS on October 27, 2011.
Without any hearing of fact or law in the above - captioned matter, IT IS AGIU]"D BY
THE PARTI I,S 'THAT:
In order to avoid the cost and delay of litigation, the parties have entered into this
Agreement and have agreed that all parties have been correctly designated and that there is no
question as to misjoinder or nonjoinder.
2. Petitioner shall implement the sampling plan described in an attachment to this
Settlement Agreement and With of Petition titled "MACIZOINVER '1.1 I31ZA'i'l: MlIZVFY
PROTOCOL FORT "TWO NEW REFERENCE STATIONS IN THl' MAIN PRONG ANl) fWt}
EXISTING STATIONS IN' TI -11; WEST PRONG MI'T'IGATION C1- IANNII. Ol"
WHITRI -IURST CRI I?K, BEAUFORT COUNTY, NOIZTI-I CAROLINA" (1 ?xhibit 1).

I Respondent, by signing this Settlement Agreement and Withdrawal of' Petition,
rescinds the DWQ Letter, but reserves the rigllt to reissue the DWQ Letter upon either of the
following: (a) DENR review of the report of the results of the sampling, plan described in
F-`xhibit 1; or (b) PCS falllll'C to 1111plement the sampling plan described in IAhihit 1.
4. No later than 30 days after the filing of this Settlement Agreement and
Withdrawal of Petition, Respondent shall cause to be entered in DENR tiles related to the DWQ
Letter a copy of this Settlement Agreement and Withdrawal 01' Petition.
5. The parties agree that the consideration for this settlement is the promises
contained herein and that this Agreement contains the whole agreement between them.
6. This Agreement shall be binding upon the parties, their successors and assig,ns.
upon execution by the undersigned, who represent and N•varrant that they are authorised to enter
into this agreement on behalf of the parties hereto.
FOR: THE DIVISION 01-' WATER QUALITY
Cyndi Karoly, Chief'
Wetlands and Stormwater Branch
Date:
APPROVED AS TO FORM
ROY COOPER
Attorney General
By: -
Jane Oliver
Assistant Attorney General
N. C. Department of Justice
Environmental Division
9001 Mail Service Centel-
Raleigh, NC 27699 -9001
A7°10RNEY FOR THE RESPONDENT
FOR: PCS PHOSPHATI COMPANY.
INC.
Steve I-3eckel, General Manag,cr
Date:
BROOKS PIERC1 , Mcl.FNDON.
l-IUMPI TREY & LFIONARI). 1 -1.1'
13y: - - -- - - -- -- --
George W. House -
Post Off ice Box 26000
Greensboro, NC 27420 -6000
/I TTORNE) S FOR 7711: PE77770,N'I:R

MACROINVERTEBRATE SURVEY PROTOCOL FOR TWO NEW REFERENCE STATIONS IN THE MAIN
PRONG AND TWO EXISTING STATIONS IN THE WEST PRONG MITIGATION CHANNEL OF
WHITEHURST CREEK, BEAUFORT COUNTY, NORTH CAROLINA
1.0 INTRODUCTION
Since 2003, two stations have been sampled in February and July for aquatic macroinvertebrates
in the West Prong mitigation channel of Whitehurst Creek and compared to the 1992 baseline results
(CZR Incorporated 1993). Station 1 is located near the downstream end of the West Prong mitigation
channel and Station 2 is located upstream of Station 1 in the upper end of the mitigation channel. At
the suggestion of the North Carolina Division of Water Quality (NCDWQ), two new reference stations
are proposed for additional aquatic macroinvertebrate surveys. The two new reference stations
proposed, Stations A and B, are located downstream of the West Prong mitigation channel in the
historical portion of Whitehurst Creek, but upstream of estuarine marsh, Station A is located
downstream of the new railroad bridge across Whitehurst Creek and Station B is located upstream of
the same bridge. All four station locations are depicted on Figure 1.
The new monitoring protocol for the four stations in Whitehurst Creek will not include any fish
survey nor will it include monthly channel water quality measurement by PCS Phosphate Company,
Incorporated as has been occurring in the West Prong mitigation channel since 2003. The new aquatic
macroinvertebrate monitoring at the four stations will be done according to the same methodology and
protocol as has been followed in the West Prong mitigation channel since 2003; however, annual data
from Stations 1 and 2 will be compared to annual data from Stations A and B instead of the 1992
baseline.
Selection of the two proposed Stations A and B was based on the station having a similar degree
of canopy cover and similar shrubby creek edge as found at the current Stations 1 and 2. The most
downstream proposed station (Station A) is located in the transition zone between bottomland /swamp
forest and the zone of active tree death concomitant with sea level rise. The most upstream proposed
station (Station B) is located at the edge of the maintained power line and the bottom land /swamp
forest community.
2.0 METHODS
2.1 Physical Characteristics and Water Quality. Temperature, conductivity, salinity,
dissolved oxygen, and pH will be measured twice annually at each benthos sampling station (described
below) at the time of the aquatic macroinvertebrate surveys using a YSI Pro Plus multi- parameter water
quality instrument or equivalent technology. Other parameters to be assessed at the time of biological
sampling included substrate composition, water depth, canopy cover, aufwuchs (algal, bacterial, fungal,
and meiofaunal growth upon solid surfaces), flow estimates, and bank erosion.
Whitehurst Creek 2012 and 2013 Aquatic Macroinvertebrate Survey Protocol Page 1
CZ.R Incorporated Deccmber 2011

2.2 Aquatic Macroinvertebrates. The macroinvertebrate sampling methodology and
reporting standards used in Whitehurst Creek are based on the Swamp Method protocol used by DWQ
during sampling of Whitehurst Creek in February 1992 (CZR Incorporated 1993; NCDENR 2001) in an
effort to maintain consistency in collection and analysis of data. The 2006 Standard Operating
Procedures for Benthic Macroinvertebrates publication by NCDENR was consulted for updates on the
Swamp Method and was found to require the same sampling techniques as currently practiced by CZR
(NCDENR 2006).
In accordance with the protocol, nine standing sweep net samples for macroinvertebrates will
be collected at each station and hand - sorted in the field in both February (winter) and July (summer) of
2012 and 2013. Collected individuals will be preserved in 10 percent formalin and put in labeled vials.
Additional specimens may be collected from log washes and rubs as well as incidental captures. In the
lab, all specimens will be identified to the lowest reasonable taxa as described in Brigham et al. (1982).
As has been done since 2003, taxa unidentified to species level will not be counted in taxa richness
totals when the same genus is already represented either during a season or at a sampling station,
Biotic Index (BI) values will be calculated for winter samples only as recommended by DWQ
(NCDENR 2001; NCDENR 2006). The BI values allow assessment of temporal changes in biological
integrity as well as comparison of biological integrity in Whitehurst Creek among sampling efforts. In
addition, Ephemeroptera, Plecoptera, and Trichoptera taxa richness (EPT richness) will be tabulated.
Like the BI, the EPT richness metric is often used as an indicator of habitat quality, as high EPT richness is
considered an indicator of good ecosystem health. Commonly, coastal plain streams have a lower EPT
richness than piedmont or mountain streams because of slow or low flows and other unique
characteristics of these streams. To compare the macroinvertebrate community similarity of mitigation
Stations 1 and 2 to the new reference Stations A and B, the Jaccard coefficient of community similarity
will be used (Brower and Zar 1984). The Jaccard index (Q is defined as:
C, =c /(s1 +s2 -c), where
c= number of genera common to both communities and s,, s, are the total number of genera in
community 1 and 2, respectively. The Jaccard index of community similarity ranges from 0.0 to 1.0, with
0.0 representing completely dissimilar populations and 1,0 representing identical populations.
3.0 REPORTS
Using similar format and tables to the previous mitigation channel monitoring reports as
appropriate, benthic data collected in 2012 and 2013 will be compared between mitigation Stations 1
and 2 and the new reference Stations A and B in monitoring reports submitted by 1 June following the
year of collections.
Whitehurst Creek 2012 and 2013 Aquatic Macroinvertebrate Survey Protocol Pale 2
CZ-.R Incorporated December 201 1

4.0 PHOTOGRAPHS OF PROPOSED AND CURRENT BENTHIC SWEEP STATIONS
View downstream of Whitehurst Creek in vicinity of proposed new reference Station A. Shrubs on left
bank mark beginning of the survey station. 7 December 2011,
View upstream of proposed new reference Station B of Whitehurst Creek. The flagging in the
foreground marks the downstream end of the station and the fallen tree across stream marks the
upstream end of the station.
Whitehurst Creek 2012 and 2013 Aquatic Macroinvertebrate Survey Protocol Page 3
CZIt Incorporated December 201 1

View of current Station 1 in West Prong of Whitehurst Creek mitigation channel. 27 July 2011.
View of current Station 2 in West Prong of Whitehurst Creek mitigation channel. Water levels had
recently been lowered after beavers and dams were removed prior to survey. 23 February 2011
Whitehurst Creek 2012 and 2013 Aquatic Macroinvertebrate Survey Protocol _ ~ Pale 4
C%R Incorporated December 20I I

REFERENCES
Brigham, A.R., W.U. Brigham, and A. Gnilka, eds. 1982. Aquatic insects and oligochaetes of North and
South Carolina, Midwest Aquatic Enterprises, Mahomet, Illinois. 837 pp.
Brower, 1.E, and J.H. Zar, 1984. Field and laboratory methods for general ecology. Macgraw -Hill, 288
pgs.
CZR Incorporated, 1993. Upper Whitehurst Creek aquatic macroinvertebrate and fish survey 1992
baseline report. Wilmington, North Carolina.
NCDENR 2001. Standard operating procedures for benthic macroinvertebrates, Biological Assessment
Unit. Division of Water Quality, Water Quality Section Environmental Sciences Branch.
NCDENR 2006. Standard operating procedures for benthic macroinvertebrates, Biological Assessment
Unit. Division of Water Quality, Environmental Sciences Section.
Whitehurst Creek 2012 and 2013 Aquatic Macroinvertebrate Survey Protocol
CZR Incorporated December 1-01 1

N
ci
O
N
L
c
N>
ro
c
CO
�o
v_
LL
a
ro
a
a
a
a
a
a
a
a
u
u
u_
u_
u_
u
u_
>
u
U
_u
_u
O
O
O 10
01010
O
O
10
d
W L
U to
N
`
o Q
E
eo
_v
O
�-C
to "
CL
s
-a
s
ai
m
M
06
L
U
Y
ao
m
~
0
.c
E tlC0
u
u
u
u
u
u
u
u O
>
E c
a
r-
r
a1
m
ro
ro Q
O
O
O
O
O
m
O
O
O
O u
cc
v
i M
z
d
b
M
-a
f0
(u0
Q)
N
N
c
C
C
p
O
O
up c
to
c
Y
c
c
a
u
c
L
u
(0
a
u
a
u
a
u
a
u
a
u
a
U
a
>
a
V
a
u
s
O
�
L
ou
O
O
O
O
O
O
co
O
O
c
3
CL
¢
3
O
o
d
cv
¢
o
a
a
a
d)
a c
a
a
a
a
a
a
a
a
H
u
u
u
u
u
u_
v
u
u_
u_
>
ru
u
u_
t=
O
10
O
10 n.
0 -fO
01010
O
O
O
O
c
cz
.O
c
O
T
T
T
T
T
T
T
T
T
T
T
?
T
O
Q
O
O
O
O
O
O
O
O
O
O
O
z
z
x
=
z
z
z=
r
z
=
z
z
c
o
x
c
c
S
_
c
m
-
o
O
C
l0
Q
m
3
(0
a�
w
2
N
�
-'j
�
~
Q)
O
J
U
O`
T
O
�
t0
N
p
Q
0)
x
C
c
N
N
m
f-
D
E
E
c
L
>
(0
0)
O
p
U
Y
-0
N
>
O
O
a
W
Q
Q
U
O
0
0
LL
F-