20111013 Ver 2_Public Comments_20130415 (3)

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SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone 919 - 967 -1450
Via US and Electronic Mail
601 WEST ROSEMARY STREET, SUITE 220
CHAPEL HILL, NC 27516 -2356
April 11, 2013
Cyndi Karoly
Branch Manager, Wetlands and Stormwater Branch
N C Division of Water Quality
1650 Mail Service Center
Raleigh, NC 27699 -1650
Facsimile 919 - 929 -9421
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Re: Martin Marietta Materials — Proposed Vanceboro Quarry Application for
401 Water Quality Certification and Application for New NPDES Discharge
Permit
Dear Ms Karoly
Please accept these comments on the draft permit to discharge wastewater under the
National Pollutant Discharge Elimination System ( "NPDES permit ") and the application for a
401 Water Quality Certification ( "water quality certification ") for Martin Marietta Materials, Inc
( "MMM ") to discharge 9 0 MGD of mine dewatermg wastewater from its Vanceboro quarry to
an unnamed tributary of Blounts Creek in the Tar - Pamlico River Basin The Southern
Environmental Law Center ( "SELC ") submits these comments on behalf of the Pamlico -Tar
River Foundation ( "PTRF ") PTRF is a private, non -profit organization that has been dedicated
to protecting, preserving, and promoting the Tar - Pamlico River and its watershed since 1981
SELC is a private, non - profit legal organization that seeks to protect and preserve the
Southeastern environment These comments supplement separate comments submitted by PTRF
on March 14, 2013 ( "March 14 comments ")
Based on a review of studies submitted by MMM to the North Carolina Division of
Water Quality ( "DWQ "), the proposed discharge would violate state water quality standards In
addition, MMM has failed to provide sufficient information to allow for proper review of the
water quality certification application For these reasons, DWQ would be acting arbitrarily and
capriciously if it were to issue a final permit or a water quality certification for the proposed
discharge
L The proposed discharge would violate state water quality standards.
The proposed discharge from MMM's quarry would violate state water quality standards
for two reasons
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First, the proposed discharge would violate state water quality standards because it would
degrade an existing use of Blounts Creek by precluding maintenance of the creek's "biological
integrity " North Carolina's antidegradation rule states that a project "shall not be permitted
unless the existing uses are protected " 15A N C Admin Code 02B 0201(b), 40 C F R
§ 131 12(a)(1) In addition, DWQ may only issue a water quality certification when it
"determines water quality standards are met, including protection of existing uses " 15A N C
Admin Code 02H 0506(a) As a Class C water, Blounts Creek is subject to a "best usage of
waters" narrative water quality standard, which provides that these waters "shall be suitable for
aquatic life propagation and maintenance of biological integrity, wildlife, secondary recreation,
and agriculture " 15A N C Admin Code 02B 0211(2) Biological integrity is "the ability of
an aquatic ecosystem to support and maintain a balanced and indigenous community of
organisms having species composition, diversity, population densities and functional
organization similar to that of reference conditions " 15A N C Admin Code 02B 0202(l 1)
(emphasis added) Under the "best usage of waters" standard, "[s]ources of water pollution
which [sic] preclude any of these uses, on either a short-term or long -term basis shall be
considered to be violating a water quality standard " 15A N C Admin Code 02B 0211(2)
Therefore, a discharge that precludes the maintenance of biological integrity is in violation of
state law As discussed below, the proposed discharge will preclude the maintenance of
biological integrity by causing a change in the species composition of Blounts Creek on both a
short-term and a long -term basis
As described in PTRF's March 14 comments, Blounts Creek is a coastal, blackwater
stream, a type of system that is naturally more acidic and more brackish (saline) than other
freshwater stream systems The upper portion of Blounts Creek is secondarily classified as a
swamp water Swamp waters ( "Sw ") are "waters which [sic] have low velocities and other
natural characteristics which [sic] are different from adjacent streams " 15A N C Admin Code
02B 0101(e)(2) The natural characteristics of a swamp water— low flow, low concentrations
of dissolved oxygen, high concentrations of tannins, and low pH — are what create Blounts
Creek's particular habitat These defining characteristics must be protected to maintain
biological integrity
Blounts Creek is an aquatic nursery area for numerous species 1 In particular, the creek
is used for spawning migrations and nursery areas by anadromous fish species, such as striped
bass, and the creek is a designated Anadromous Fish Spawning Area 2 Blounts Creek also
supports several anadromous fishes of interest to the National Marine Fisheries Service
( "NMFS "),3 as well as the facultatively catadromous American eel, a Federal species of
concern 4
1 Letter from Kevin Hart (North Carolina Division of Marine Fisheries) to Ian McMillan (North Carolina Division of
Water Quality), January 3, 2012, at 1
2 Letter from David R Cox (North Carolina Wildlife Resources Commission) to William Wescott (US Army Corps
of Engineers) and Ian McMillan (DWQ), January 18, 2012, at 2
3 See Letter from Heather Deck (Pamlico -Tar River Foundation) to Tom Belmck (DWQ), March 14, 2013, at 3
4 USFWS Endangered Species, Threatened Species, Federal Species of Concern, and Candidate Species, Beaufort
County, North Carolina, available at http //www fws gov/ raleigh/species /cntylist/beaufort html (last visited April 9,
2013)
2

It is undisputed that the proposed discharge would change the water chemistry of Blounts
Creek 5 In fact, MMM's own consultants have projected that the discharge could change the
creek's water chemistry to the extent that the supplementary state classification of upper Blounts
Creek as a swamp water would no longer apply 6 If Blounts Creek were to lose the
characteristics of a swamp water, its biological integrity would be lost as well The N C
Wildlife Resources Commission ( "NCWRC") has predicted that just such a scenario could occur
if the discharge is approved In general, changes in flow, salinity, pH, and metal concentrations
caused by the proposed discharge, and the "potential conversion of riparian wetlands from
brackish to more fresh," could "lead to a change in habitat" and "discourage several species from
using the creek "7 The NCWRC has also stated that the introduction of fresh water from the
proposed discharge "would likely move the fresh -salt barrier downstream, inhibiting access of
[anadromous fish species] to the hard bottom wetlands and headwater habitats they require to
spawn "8 This could have an especially detrimental effect on the blueback herring, an imperiled
species that historically uses habitats like Blounts Creek 9 The North Carolina Division of
Marine Fisheries ( "NCDMF ") has stated that changes in salinity could reduce the presence of
speckled trout 10 Fluctuations in metals or pH could lead to more algal blooms and fish kills 11
Potential changes in creek turbidity and nutrient composition could potentially affect fish species
by changing the extent or composition of Blounts Creek's submerged aquatic vegetation
( "SAV ") beds 12
In its October 30, 2012, technical memorandum for MMM, CZR Incorporated ( "CZR "),
concludes that the change in water chemistry caused by the discharge could alter the creek's
species composition For example, CZR states that the expected increase in pH "may provide
more suitable habitat (water column) for a more diverse realm of freshwater fish species [and]
may create more suitable habitat for all diadromous fish species X13 They suggest that
changes in pH could have also have an unknown, unquantified effect on aquatic plant species 14
Regarding salinity, CZR concludes that "[t]he addition of a constant input source of freshwater
from the upstream quarry dewatermg outfall will likely move the salt wedge further downstream
in Blounts Creek," but states that this is not a major concern because fish species "are mobile"
and can move downstream 15 Finally, regarding flow, CZR states that "[i]f both stream flow and
velocity increase then a potential compositional change may occur to the benthic invertebrates
inhabiting Blounts Creek [includin� a] change [in] the amounts and proportions of benthic
shredders and collector - gatherers " 6 In sum, the proposed discharge would disrupt existing fish,
5 Technical Memorandum Stability, Flood, and Water Quality Analyses, Vanceboro Site, Martin Marietta
Materials, Craven and Beaufort Counties, North Carolina Kimley -Horn and Associates, Inc September 6, 2012
(4, 9, 12)
6 Technical Memorandum to address potential direct and indirect effects on identified fish populations from
predicted changes in Blounts Creek water quality CZR Incorporated October 30, 2012 (10)
7 Cox letter, at 2
a Id
9 Id
10 Hart letter, at 1
11 Cox letter, at 3
12 See Deck letter, at 9
13 CZR technical memorandum, at 5
14 Id , at 8 -9
" Id, at7
16 Id , at 14

vegetation, and benthic communities, the very aspects of the aquatic environment protected by
the standard for biological integrity
The impacts to Blounts Creek may be even greater than suspected As detailed in
PTRF's March 14 comments, CZR's memorandum is flawed in several ways that could result in
an underestimation of species impacts 17 It does, however, provide enough information to
conclude that the proposed discharge would lead to an alteration in the natural species
composition and distribution in Blounts Creek Indeed, the memo does not dispute the loss of
existing biological integrity, but attempts to minimize this loss by promising habitat for new
species The memo also raises questions of how an influx of freshwater species would affect
species composition through increased competition for resources and for spawning and nursery
habitat
North Carolina water quality standards require maintenance of the existing, natural
"species composition, diversity, population densities and functional organization," or the
biological integrity of Blounts Creek The currently available evidence demonstrates, however,
that the proposed discharge would affect the biological integrity of Blounts Creek and degrade an
existing use
Second, the proposed discharge would violate state water quality standards because it
would violate the pH standard for Class C waters The standard provides that "pH shall be
normal for the waters in the area, which generally shall range between 6 0 and 9 0 except that
swamp waters may have a pH as low as 4 3 if it is a result of natural conditions " 15A N C
Admm Code 02B 0211(g) The proposed discharge would raise the current pH in Blounts
Creek from a range of 4 0 -5 5 to a predicted 6 3 -6 9 The pH standard prohibits this large
increase because the pH of the waters downstream of the discharge sites would no longer be
"normal" for the acidic, blackwater creek, or "normal" as compared to the pH conditions
upstream of the discharge The pH standard is consistent with the protection of existing uses in a
system like Blounts Creek Maintaining existing pH and the factors that contribute to it are
essential to maintaining biological integrity DWQ cannot permit a discharge that will so
dramatically change the normal pH levels of Blounts Creek
For these reasons, the proposed discharge would violate state law and DWQ must not
issue a final NPDES permit or a 401 water quality certification The degradation of an existing
use and the violation of the pH water quality standard are sufficient bases for denying the permit
and certification However, MMM has also failed to provide adequate information to support the
proper review and issuance of a water quality certification
1' Deck letter, at 6 -7 In addition to the problems mentioned in the March 14 comments, CZR's assessment is
flawed because it minimizes the discharge's effect by stating that changes in flow and salinity will be within the
range of natural variability See, e g, CZR technical memorandum, at 7 Unlike natural events that cause
fluctuations in background conditions, such as coastal storms, the discharge would permanently increase flow and
permanently move the salt wedge downstream Permanent changes may have very different effects than natural,
sporadic fluctuations
4

H. MMM has not shown a lack of practical alternatives to the proposed discharge.
The Division of Water Quality may only issue a water quality certification upon
determining that the proposed activity "has no practical alternative " 15A N C. Admin Code
02H 0506(b)(1) A lack of practical alternatives "may be shown by demonstrating that,
considering the potential for a reduction in size, configuration or density of the proposed activity
and all alternative designs the basic project purpose cannot be practically accomplished in a
manner which [sic] would avoid or result in less adverse impact to surface waters or wetlands "
15A N C Admin Code 02H 0506(f) This showing is distinct from a NPDES permit
applicant's duty to submit an engineering report assessing alternatives to a proposed discharge
and demonstrating that "the most environmentally sound alternative was selected from the
reasonably cost effective options " See 15A N C Admin Code 02B 0201(f), 15A N C Admin
Code 02H 0105(c)(2)
MMM has submitted an engineering alternatives analysis that assesses five
technologically - feasible options for disposing of the mine dewatermg waste, and identifies the
proposed discharge into Blounts Creek as the lowest cost alternative 18 This analysis shows that
there are at least four alternatives to the proposed discharge that are technologically feasible and
would allow for the project's basic purpose to be practically accomplished In light of these
multiple options, MMM must more fully assess the possibility of connecting to an existing water
supply system, re- infecting the groundwater, or using some combination of these two
alternatives MMM also must assess the economic practicality of each alternative in light of the
impact of the discharge and the benefits of environmental protection Finally, MMM must
consider how changes in design and operation of the mining operation would affect discharge
volumes and change the calculations for each alternative or combination of alternatives Until
MMM conducts additional analysis, they have not demonstrated that there is a lack of practical
alternatives to the proposed discharge and DWQ cannot issue a water quality certification.
III. MMM has not provided adequate information for DWQ to properly assess the
proposed discharge's impacts.
Under the state water quality certification regulations, DWQ may only issue a
certification after it has determined that the proposed activity "will minimize adverse impacts [to
the waters] does not result in the degradation [of the waters and] does not result in cumulative
impacts that cause or will cause a violation of downstream water quality standards " 15A
N C Admin Code 02H 0506(b) PTRF's March 14 comments note several areas where a
determination of cumulative impacts cannot be made because the information provided by
MMM is lacking We emphasize that MMM must calculate impacts based on the fact that the
increased flow will be permanent, and not consistent with natural fluctuations In addition,
MMM must also provide more information in the following areas
• Aquatic vegetation and benthic organisms MMM must more fully analyze the
effect of the discharge on aquatic vegetation, including the submerged aquatic
`$ Engineering Alternatives Analysis, Vanceboro Quarry, Martin Marietta Materials, Beaufort and Craven Counties
Groundwater Management Associates, Inc September 14, 2012

vegetation ( "SAV ") beds, as well as on benthic organisms in the upper portion of
Blounts Creek, which cannot migrate if the salt wedge moves permanently
downstream,
• Increased habitat for freshwater species MMM must more fully analyze the
impact on resident species from increased use of the Blounts Creek habitat by
freshwater species As mentioned in the March 14 comments, MMM's biological
sampling data is inadequate for determining the creek's current species
composition,
• Temperature Currently, there is no analysis of the temperature differences
between the discharge water and Blounts Creek MMM must analyze the effect
of the discharge on the creek's water temperature,
• Metals MMM must more fully analyze the effect of metals in the proposed
discharge on the species in Blounts Creek MMM must consider the specific
characteristics of the brackish creek system and its native species, rather than
relying on studies based on distinct stream systems MMM must also consider the
effect of spills at the quarry site on the discharge,
• Increased flow MMM must more fully analyze the effect of the discharge on
sedimentation and turbidity, and the effect of increased flow on spawning habitat
MMM must also analyze the effect of increased flow on wetlands and should
calculate flooding and erosion risks considering the effect of wind on the
movement of water. Finally, MMM must ensure that all calculations take into
account the potential built -out flow of 12 MGD,19
• Large storm events MMM must analyze the effect of abnormal storm events
when combined with increased flow on the salinity, habitat composition, and
stability of Blounts Creek, especially considering the low turnover rate of water in
the creek MMM must also consider the effect of large rainfall events at the
quarry site, and
• Pamlico River and Pamlico Sound. MMM must analyze the impact of
introducing a new, permanent source of fresh water into the Pamlico River and
Pamlico Sound, especially when combined with existing large discharges of fresh
water downriver of Blounts Creek
IV. Conclusion
For the above reasons, DWQ must not issue a final NPDES permit or a water quality
certification for the proposed discharge to Blounts Creek at this time Based on the preliminary
analysis, any large, permanent discharge of fresh water into upper Blounts Creek would violate
state water quality standards However, we believe that the permitting process will benefit from
a further investigation of impacts and alternatives
19 Engineering Alternatives Analysis, at 2 -3
6

We appreciate the opportunity to submit these comments Please contact me at (919)
967 -1450 if you have any questions
Sincerely,
l x /C`-
Geoffrey R Gisler
CC (via email)
Heather Deck, Pamlico -Tar River Foundation