20080868 Ver 2_Public Comments_20080707

SOUTHERN ENVIRONMENTAL LAW CENTER
200 WEST FRANKLIN STREET, SUITE 330 Charlottesville, VA
CHAPEL HILL, NC 27516-2559 Chapel Hill, NC
Telephone [phone] Atlanta, GA
Facsimile 919-929-9421 Asheville, NC
[e-mail] Sewanee, TN
July 7, 2008
Via Electronic Mail and U.S. Mail
Mr. John Dorney
N.C. Division of Water Quality
1650 Mail Service Center
Raleigh, N.C. 27699-1650
Re., Section 401 Clean Water Act Certification for the PCS Phosphate Mine
Continuation: Aurora, North Carolina
Dear Mr. Dorney:
Please accept the following comments on Potash Corporation of Saskatchewan's
("PCS") Clean Water Act Section 401 certification application related to their Section
404 permit request to mine 4,135 acres of waters of the U.S. under Alternative L as
described in the Final Environmental Impact Statement ("FEIS"). The Southern
Environmental Law Center ("SELL") 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. PTRF is a member of the Review Team for this project. SELC is
a private, non-profit legal organization that seeks to protect and preserve the Southeastern
environment.
Because the Section 401 certification is a component of PCS's CWA Section 404
permit request and will rely substantially on the documentation prepared to comply with
NEPA as part of that request, we have included our comments on the Draft
Environmental Impact Statement ("DEIS"), the Supplemental DEIS ("SDEIS"), and the
FEIS related to the project. As discussed in these comment letters, and highlighted
below, the FEIS is substantially inadequate and fails to make the necessary showings to
comply with 15A MC.A.C. 2H.0506 (b) and (c) concerning 401 certifications for surface
waters and wetlands, respectively. Therefore, the Division of Water Quality should deny
PCS's Section 401 certification request.
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I. PCS Has Not Met the Requirements for a Section 401 Certification and the
Division of Water Quality Should Reject Their Application.
PCS has not demonstrated that no practicable alternatives exist or that it has
minimized stream or wetland impacts.
The FEIS economic practicability analysis relies on in inappropriate cost model,
is inconsistent, is internally contradictory, and consequently fails to consider multiple
potentially practicable alternatives that would impact substantially fewer acres of
wetlands, linear feet of streams, and acres of buffers,' Therefore, PCS has not
demonstrated that no practical alternative exists or that it has minimized adverse impacts
to surface waters or wetlands.
Alternative L will result in the degradation ofgroundwaters or surface waters.
State and federal resource agencies, as well as independent scientists, have
concluded that substantial mining in the NCPC tract, as would occur under Alternative L,
will cause "significant negative adverse impacts to estuarine fisheries resources, fish
habitats, water quality, and public trust waters in the Pamlico River system." 2 That fact is
further demonstrated by PCS's inability to mitigate for buffer impacts as discussed
below. Therefore, PCS has not demonstrated that mining according to Alternative L will
not result in the degradation of groundwaters and surface waters.
Alternative L will result in cumulative impacts that have not been addressed.
The FEIS does not discuss the cumulative impacts of Alternative L. PCS has
maintained that it intends to mine all available reserves, including those beneath the
Pamlico River and South Creek. Those cumulative impacts are foreseeable and could
have important water quality impacts, but are not addressed in the FEIS.3
PCS has not proposed adequate mitigation for stream and wetland impacts.
The FEIS only proposes mitigation for the first 12-15 years of impacts and does
not propose specific mitigation for more than 500 acres of wetland, 14,000 linear feet of
streams, and 20 acres of buffer impacts,4 Therefore, it does not provide for "replacement
of existing uses through mitigation.i5
1 See Southern Environmental Law Center Comments on Final Environmental Impact Statement at 2-4
(July 7, 2007) ("FEIS Comments").
2 Memorandum from McKenna to McGee of July 27, 2008 at 1. See also Letter from Deaton, N.C.
Wildlife Resources Commission, to McGee of July I, 2008 at 2-4; Letter from Benjamin, FWS, to Walker,
Corps, of Dec. 20, 2006 at 2-6; see generally Letter from Jacobs, Pamlico-Tar River Foundation, to U.S.
Army Corps of Engineers of Feb. 8, 2007 (citing numerous flaws in PCS environmental analysis and the
myriad threats that mining in NCPC poses).
' FEIS Comments at 12-13.
4 FEIS Comments at 13-15.
5 15A N.C. ADMIN. CODE 2H.0506(b)(6) and (c)(6).
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II. PCS's Flexible Buffer Mitigation Plan is Inadequate, Unlawful, and Will
Degrade Water Quality.
The Tar-Pamlico Estuary is a nutrient sensitive water that has experienced
numerous and significant water quality problems associated with excessive nutrient
inputs. In 2002, the Environmental Management Commission ("EMC") enacted a
nutrient sensitive management strategy for the Tar-Pamlico River basin. Central to this
strategy is protection of riparian buffers to maintain nutrient removal functions and
restoration of buffers if impacts are unavoidable. The riparian buffer mitigation strategy
and implementing rules include detailed requirements for mitigation of buffers resulting
from unavoidable impacts.6 PCS (dba Texas Gulf) was fully operational and doing
business in the basin at the time the rules were adopted.
PCS has proposed a woefully deficient plan to address the substantial destruction
of buffers associated with its mining advance. Rather than complying with the rules, PCS
proposes an "anything goes" (i.e. "flexible") approach to addressing the massive
destruction of buffers. PCS's plan presumptively assumes that a variance will be granted
by the EMC. Because PCS's mining plan and resulting destruction of riparian buffers
fail to comply with the buffer mitigation regulations, the 401 Certification must be
denied. In addition, because PCS's circumstances fail to meet the standards for granting
a variance, no variance can be granted.
PCS identifies a need during the first 15 years of mining to mitigate 76.7 acres of
buffer to replace 31.9 acres that will be destroyed by the mining operation. An additional
23.1 acres of buffer will be destroyed in ensuing years if a permit is issued authorizing
Alternative L requiring 52.2 acres of mitigation. In total, PCS is seeking authorization to
destroy 55 acres of riparian buffer; an impact that will require 128.9 acres of mitigation.
PCS's mitigation plan identifies only 26.6 acres of potential buffer restoration only one-
fifth of the required restoration. This failure to meet the explicit requirement of the
buffer mitigation regulation requires denial of the 401 Certification. Moreover, buffer
mitigation "shall be located the same distance from the Pamlico River Estuary as the
proposed impact, or closer to the estuary than the impact, and as close to the location of
the impact as feasible." 7 Most of PCS's proposed buffer mitigation sites are located
farther from the estuary than the location of the impact and are misplaced and
inappropriate.
PCS's presumption that a variance from the buffer rules will be granted is also
misplaced because the EMC cannot issue a variance to PCS under the criteria in 15A
N.C.A.C. 213 .0259(9). Destruction of buffers requires mitigation in accordance with the
rules, and if this mitigation is not provided "persons who wish to undertake uses
designated as prohibited may pursue a variance."8 The process for granting variances to
the buffer rules includes specific requirements that must be met. First, an applicant for a
variance must demonstrate that there are practical difficulties or unnecessary hardships
e 15A N.C. ADMIN. CODE 213.0260.
' 15A N. C. ADMIN. CODE 2B ,0260(4).
a 15A N.C. ADMIN. Coos 213.0259.
that prevent compliance with the strict letter of the riparian buffer protection
requirements.9 An applicant must demonstrate that "he/she can secure no reasonable
return from, nor make reasonable use of, his/her property."10 Here, PCS has multiple
reasonable alternative uses of the property. In addition, "merely proving that the variance
would permit a greater profit from the property shall not be considered adequate
justification for a variance."'' PCS must demonstrate, which it has not, that avoiding the
buffer areas would not allow it to continue to mine at all, not merely reduce the expected
profit it hopes to maximize. In addition, PCS must show that its claimed hardship "is due
to the physical nature of the applicant's property, such as its size, shape, or topography,
which is different from that of neighboring property."12 PCS cannot make this required
showing. Finally, PCS must demonstrate that the hardship "is unique to the applicant's
property, rather than the result of conditions that are widespread. If other properties are
equally subject to the hardship created in the restriction, then granting a variance would
be a special privilege denied to others, and would not promote equal justice." 13 There are
no unique conditions on PCS's property and under these principles of equal justice PCS
should not be granted privilege denied others.
Second, the EMC may not grant a variance unless it is in harmony with the
general purpose and intent of the state's riparian buffer protection requirements. The
purpose of the riparian buffer rule is clearly stated: "The purpose of this rule shall be to
protect and preserve existing riparian buffers, to maintain their nutrient removal
functions, in the entire Tar-Pamlico River basin .,14 PCS's anything goes conceptual
mitigation plan does precisely the opposite: it destroys riparian buffers in the Tar-
Pamlico River basin with minimal misplaced restoration and a huge net loss of riparian
buffers and their nutrient removal functions.
Third, the EMC may grant a variance only if "water quality has been protected,
and substantial justice has been done.s15 The mere fact that PCS cannot find adequate
restoration of buffers within the impacted Pamlico watershed, but for a small fraction of
its riparian buffer destruction, demonstrates PCS's mine advance will have significant
long term adverse impacts on water quality. For all these reasons, any request for a
variance by PCS must be denied.
9 15A N.C. ADMIN. CODE 2B.0259(a)(i).
10 15A N.C. ADMIN. CODE 2B.0259 (a)(i)(A).
Id.
1z 15A N.C. ADMIN. CODE 2B .0259 (a)(i)(C),
15A N.C. ADMIN. CODE 2B .0259(a)(i)(F).
14 15A N.C. ADMIN. CODE 2B.0259(1).
15 15A N.C. ADMIN. CODE 2B.0259(9)(a)(iii).
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Please do not hesitate to contact us at [phone] if we can provide any
additional information related to these comments.
Sincerely,

Derb S. Carter, Jr.
Senior Attorney/Carolinas Office Director
Southern Environmental Law Center
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Geoffrey R. Gisler
Associate Attorney
Southern Environmental Law Center