20080868 Ver 2_Public Comments_20080829

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
August 29, 2008
Ms. Adriene Weaver
Water Quality Committee
Environmental Management Committee
1617 Mail Service Center
Raleigh, NC 27604
Re: Request for a Major Variance from the Tar-Pamlico Riparian Protection Rules
for Buffer Mitigation for the PCS Phosphate Company, Inc.
Ms. Weaver,
Please accept the enclosed Brief in Support and Motion to Intervene and in
Opposition to the above reference Request for a Major Variance. It is our understanding
that this variance request is scheduled to come before the Water Quality Committee at its
September 10, 2008 meeting. By this Motion, we request the opportunity to address the
Water Quality Committee at that meeting in support of our motion and in opposition to
PCS Phosphate's requested variance.
Sincerely,
Geoffrey R. Gisler
100% recycled paper
IN THE WATER QUALITY COMMITTEE OF THE ENVIRONMENTAL
MANAGEMENT COMMISSION
BRIEF IN SUPPORT AND MOTION TO INTERVENE IN AND IN
OPPOSITION TO
REQUEST FOR A MAJOR VARIANCE FROM THE TAR-PAMLICO RIPARIAN
PROTECTION RULES (15a NCAC 02B .0259 AND .0260) FOR BUFFER
MITIGATION FOR THE PCS PHOSPHATE COMPANY, INC.
BY THE PAMLICO-TAR RIVER FOUNDATION, HEATHER JACOBS-
PAMLICO-TAR RIVERREEPER, THE NEUSE RIVER FOUNDATION, LARRY
BALDWIN-LOWER NEUSE RIVERREEPER, THE CATAWBA RIVER
FOUNDATION, THE ENVIRONMENTAL DEFENSE FUND, AND THE NORTH
CAROLINA COASTAL FEDERATION
PCS Phosphate Company, Inc. ("PCS") seeks a major
variance from the buffer protection regulations of the Tar-
Pamlico Nutrient Sensitive Waters Management Strategy
("Tar-Pamlico Buffer Rules") to authorize PCS to destroy 55
acres of riparian buffer and pursue a "flexible mitigation
plan." For the following reasons, the Environmental
Management Commission ("Commission") must deny this
request. PCS's proposed mining activities and associated
buffer destruction is "allowable with mitigation" under the
Tar-Pamlico Buffer Rules. The Commission is only
authorized to issue variances for activities that are
"prohibited" under the Rules. No variance can be issued
for these activities and the request must be denied.
Even if the Commission could issue a variance, PCS's
major variance request does not satisfy the mandatory
criteria for a variance in the Tar-Pamlico Buffer Rules.
PCs has provided no facts to support the required
determination that PCs can secure no reasonable return
from, nor make reasonable use of, its property without the
requested variance. Multiple reasonable uses of the
property are available that would provide a reasonable
return. PCS has also failed to provide any facts to
support the required determination that a hardship results
from the physical nature of its property, such as its size,
shape, or topography, which is different from that of
neighboring property. There is no hardship resulting from
the physical nature of the property. Finally, PCS has
failed to provide facts to support the mandatory criteria
for a variance that its claimed hardship is unique to its
property and not the result of conditions that are
widespread. Based on PCS's complete failure to provide
facts to support these required determinations, and the
inability to provide such facts and satisfy these mandatory
criteria for a variance, PCs's request for a variance must
be denied.
PCs has also failed to demonstrate that its proposed
buffer destruction is unavoidable. The Tar-Pamlico Buffer
Rules require an applicant proposing activities that are
allowable with mitigation to demonstrate that proposed
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destruction of buffers is unavoidable. The unanimous
expert opinions of the state and federal resource agencies
that have reviewed PCS's current mining proposal, including
the Division of Water Quality, is that PCS has failed to
demonstrate that its proposal avoids impacts to streams and
associated buffer to maximum extent practicable.
Finally, PCS proposes mitigation not authorized by the
Tar-Pamlico Buffer Rules. The Rules specify the type of
mitigation allowed and do not authorize the "anything goes"
process PCS requests. There is absolutely no evidence that
PCS's undefined process will protect water quality, a
required determination for the issuance of a variance.
Intervenors have particularized interest in the
protection of water quality and riparian buffers in the
Tar-Pamlico watershed and their interests are not
adequately represented by the Division of Water Quality.
Intervenors request that the Commission grant their motion
to intervene, and for the foregoing reasons, deny PCS's
request for a major variance.
ARGUMENT
I. THE COMMISSION IS NOT AUTHORIZED TO ISSUE A VARIANCE
FOR PCS'S PROPOSED MINING ACTIVITIES.
PCS's proposed mining activities are "allowable with
mitigation" under the Tar-Pamlico Buffer Rules. Under these
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regulations, the Commission may only issue variances for
"uses designated as prohibited." Because PCS's mining
activities are not designated as prohibited uses but are
"allowable with mitigation," no variance from the
mitigation requirements is allowed and PCS's request for a
variance must be denied.
The Tar-Pamlico Buffer Rules define specific
activities that are either "exempt," "allowable,"
"allowable with mitigation," or "prohibited" in the
protected riparian buffers established by the regulations.
15A NCAC 02B .0259(6). "Mining activities" . . . "where
new riparian buffers that meet the requirements of Items
(4) and (5) of this Rule are not established next to the
relocated channel" are "allowable with mitigation." Id.
Under the Tar-Pamlico Buffer Rules, only "[p]ersons who
wish to undertake uses designated as prohibited may pursue
a variance." 15A NCAC 02B .0259(9) (emphasis added). This
plain regulatory language is controlling; "[w]hen the
language of regulations is clear and unambiguous, there is
no room for judicial construction, and courts must give the
regulations their plain meaning." Britt v. N.C. Sheriff's
Educ. & Training Standards Comm'n, 348 N.C. 573, 576
(1998).
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There is no dispute that PCS's proposed mining
activities are not prohibited but allowable with mitigation
under the Tar-Pamlico Buffer Rules. Since variances may
only be issued for prohibited activities, PCS's application
for a variance must be denied.
II. EVEN IF THE COMMISSION COULD ISSUE A VARIANCE, PCS'S
MAJOR VARIANCE REQUEST DOES NOT SATISFY THE VARIANCE
CRITERIA IN 15A NCAC 02B .0259(9).
The Tar-Pamlico Buffer Rules establish clear,
property-specific, mandatory criteria that must be
satisfied for the EMC to issue a variance. PCS does not
even try to argue that it satisfies the specific
requirement for a variance and has not, and cannot, satisfy
these requirements.' Thus, the EMC must deny PCS's variance
request.
To merit a variance, an applicant must demonstrate
that "[t]here are practical difficulties or unnecessary
hardships that prevent compliance with the strict letter of
the riparian buffer protection requirements." 15A NCAC
02B .0259(a)(i). To meet this standard, PCS must establish
facts that show, inter alia, the following:
' We again emphasize, as discussed in section I above, that because
PCS's activities are not prohibited by the Tar-Pamlico Buffer Rules,
the EMC may not issue a variance.

(A) If the applicant complies with the provisions of
this Rule, he/she can secure no reasonable return
from, nor make reasonable use of, his/her property.
Merely proving that the variance would permit a
greater profit from the property shall not be
considered adequate justification for a variance. 15A
NCAC 02B . 0259 (9) (a) (i) (A) .
PCS makes no attempt to present facts demonstrating
that it can secure no reasonable return from, or make
reasonable use of, the property subject to the buffer
restrictions. It fails to present such facts for good
reason: many potential reasonable uses exist for the
property in question that would provide a reasonable
return. The rule obviously provides that an applicant for
a variance must show no reasonable alternative uses or
reasonable returns exist from any use, not the applicant's
preferred use of the property. Economic considerations,
beyond a reasonable return from any reasonable use, are
irrelevant because "merely proving that the variance would
permit a greater profit from the property shall not be
considered adequate justification for a variance." Id.
Moreover, "financial loss . . . cannot establish an
extraordinary or exceptional situation or hardship . . . to
justify the granting of a variance."
Williams V. N.C.
Dep't of Env't & Natural Res., 144 N.C. App. 479, 486
(2001) .
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Similar properties in the immediate area of the
proposed mine are managed for agricultural uses, forestry
uses, and residential development, all without
necessitating destruction of the riparian buffers and all
presumably provide reasonable return to the property
owners. PCS neither provides facts demonstrating that it
can secure no reasonable return from the property nor makes
any reasonable use of the property, and thereby fails to
meet the mandatory criteria for a variance, and the request
for a variance must be denied.
(C) The 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. 15A NCAC 02B .0259(9)(a)(i)(C).
Again, PCS makes no attempt to assert any facts to
establish that its property has unique physical
characteristics that distinguish it from neighboring
property and supports issuance of a variance. Intervenors
are aware of no distinguishing physical characteristics of
the PCS property. It appears indistinguishable in a
general sense from adjoining rural property in
predominantly agricultural or silvicultural uses. It has
generally flat topography like other properties in the
lower Coastal Plain. It is not an unusual or atypical
shape. It does not contain an unusual number of streams or
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tributaries for a property its size. It is a large
property which provides much greater flexibility in uses
that provide maximum opportunity for stream buffer
avoidance. PCS fails to provide facts demonstrating that
the physical nature of its property is different from
neighboring property, and thereby fails to meet the
mandatory criteria for a variance, and the request for a
variance must be denied.
(F) 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.
15A NCAC 02B. 0259 (9) (a) (i) (F) .
PCS identifies no condition that is unique to its
property to support issuance of a variance. Intervenors
are aware of no conditions unique to the property, rather
its prevailing conditions are widespread in the region and
the lower Tar-Pamlico River basin. The rule, of course,
refers to conditions "unique to the applicant's property,"
not to intended uses of that property that may be unique to
the applicant. Id. Since there are no conditions unique
to PCS's property and typical widespread conditions
prevail, PCS fails to meet the mandatory criteria for a
variance, and the request for a variance must be denied.
To grant a variance would confer a special privilege to PCS
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which would not promote equal.justice and is contrary to
the rule allowing variances. See 15A NCAC 02B
. 0259 (9) (a) (i) (F) .
When interpreting variance provisions, North Carolina
courts have made clear that it is these physical
characteristics, and not other considerations, that
control. When an administrative agency, such as the EMC,
considers a variance, it "cannot disregard the provisions
of the statute or its regulations. It can merely `vary'
them to prevent injustice when the strict letter of the
provisions would work `unnecessary hardship.'" Lee v. Bd.
of Adjustment, 226 N.C. 107, 111 (1946). In determining
whether that unnecessary hardship exists, the agency "is
not left free to make any determination whatever that
appeals to its sense of justice," but rather must abide by
the rules before it. Id. at 111. without consideration of
mandated criteria, and making specific findings of fact
regarding those criteria, the Commission cannot approve the
requested variance. See Williams v. N.C. Dep't of Env't &
Natural Res. 144 N.C. App. 479, 487 (2001). Here, the
Commission's variance rules require factual analysis of
property-specific criteria.
As evidenced by the complete exclusion of these
mandatory criteria from its variance request, PCS has not,
9
and cannot, satisfy these requirements. PCS presents a
single, novel case for a hardship in its request - it is
unable to find suitable mitigation sites to compensate for
its vast destruction of riparian buffers. But the Tar-
Pamlico Buffer Rules prescribe specific criteria that must
be considered in determining whether a hardship exists, the
Commission is bound to those criteria, and inability to
find adequate mitigation does not fall within those
criteria. Further, PCS has not submitted any property-
specific information demonstrating that it can not make
reasonable use of its property without a variance, that the
physical nature of its property is different from
neighboring properties, or that the conditions causing the
alleged hardship are unique to its property and not
widespread. These are insurmountable barriers to PCS's
variance request that PCS, understandably, ignores rather
than confronts. Since PCS has not and can not meet these
mandatory criteria for a variance, PCS's request for a
variance must be denied.
III. PCS HAS FAILED TO DEMONSTRATE THAT ITS PROPOSED
IMPACTS ARE UNAVOIDABLE AND THAT ITS PROPOSED
MITIGATION WILL PROTECT WATER QUALITY.
The Tar-Pamlico Buffer Rules require PCS to
demonstrate that its proposed impacts are unavoidable and
that its proposed mitigation will protect water quality; it
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has failed to satisfy either of these requirements. 15A
NCAC 02B .0259(8); 15A NCAC 02B .0259(9)(a)(iii). PCS
relies on a flawed FEIS to support its impacts and a vague
mitigation plan to protect water quality. Thus, PCS has
not satisfied the Tar-Pamlico Buffer Rules and this
variance should be denied.
As noted in PCS's request, the Army Corps of
Engineers' Final Environmental Impact Statement ("FEIS") on
PCS's proposed project concluded that six of the 12
alternatives that it evaluated were "practicable," but
state and federal agency comments in response to that
document indicated that none of those alternatives are
environmentally acceptable and demanded a reduction in
environmental impacts. Those agencies particularly
criticized Alternative L, a 37-year mine plan that would
have substantial, long-term environmental impacts and
serves as the basis for this variance request.
The North Carolina Wildlife Resources Commission
("NCWRC") objected to Alternative L's adverse impacts,
stating that it "would cause significant degradation to
fish and wildlife resources within the project site and the
adjacent Pamlico Sound estuary." Letter from Shannon
Deaton, NCWRC, to Melba McGee, NCDENR, and Tom Walker, U.S.
Army Corps of Engineers at 2 (July 1, 2008). The NCWRC
concluded that Alternative L "significantly impacts
wetlands and watersheds with the meandering path between
creeks and watersheds." Id. at 3. The proposed mitigation
does not alleviate those concerns, the "impacts within the
current proposal will be significant and could not be
adequately offset even with compensatory mitigation." Id.
at 4.
The North Carolina Division of Marine Fisheries
("NCDMF") criticized the FEIS as "inadequate" and "not
suitable for use as a decision support document" due to its
incomplete assessment of the environmental impacts of
Alternative L. Memorandum from Sean McKenna, NCDMF, to
Melba McGee, NCDENR, at 1 (June 27, 2008). The NCDMF
concluded that Alternative L would have "significant
negative adverse impacts to estuarine fisheries resources,
fish habitats, water quality, and public trust waters in
the Pamlico River system." Id.
Federal agencies shared this opposition to Alternative
L. According to the U.S. Fish and Wildlife Service, the
impacts proposed under Alternative L "will result in
substantial and unacceptable adverse impacts to aquatic
resources of national importance." Letter from Pete
Benjamin, USFWS, to Tom Walker, U.S. Army Corps of
Engineers, at 5 (June 25, 2008). Further, "the proposed
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compensatory mitigation is insufficient to offset adverse
impacts to the aquatic environment." Id. Because of that,
Alternative L would "produce a legacy of environmental
impacts that could last for years, affecting estuarine food
webs." Id.
Finally, the U.S. Environmental Protection Agency
("EPA") determined that the S33 Alternative, which would
impact 3,000 fewer acres of wetlands than Alternative L, is
both the "environmentally preferred alternative" and
economically practicable. Letter from Heinz Mueller, EPA,
to Col. Jefferson Ryscavage, U.S. Army Corps of Engineers,
at 2 (July 23, 2008). Citing Alternative L's proposed
destruction of nationally significant natural heritage
areas, the EPA concluded that its "environmental
objections" to Alternative L remain and that it "reserves
the right to take further action on this project in
accordance with its authority under Section 404 of the
[Clean Water Act)."
In sum, despite the release of the FEIS, the level of
unavoidable impacts under PCS's proposed mine expansion is
still not clear and 15A NCAC 02B .0259(8)(a) has not been
satisfied. The FEIS has received strong, substantive
criticism from expert agencies for its failure to address
impacts completely, which each suggest that more avoidance
13
of riparian buffers is possible, and therefore its
alternatives analysis does meet the regulatory threshold
for projects that are allowable with mitigation.
Therefore, this variance request must be denied.
Similarly, the mitigation for its proposed impacts is
unsettled and PCS has not made the required demonstration
that, if a variance is issued, it will protect water
quality. Under the Tar-Pamlico Buffer Rules, PCS must
demonstrate "water quality has been protected" before any
variance could issue. 15A NCAC 02B .0259(9)(a)(iii). In
combination with the inadequate mitigation proposed in the
FEIS, the "anything goes" approach to buffer mitigation PCS
proposes here cannot meet that requirement.
The FEIS cannot provide a clear picture on mitigation;
in it, PCS fails to propose mitigation beyond the first 15
years of impacts. See Environmental Management Commission
- Water Quality Committee PCS Phosphate Company, Inc.
request for Major Variance from the Tar-Pam Buffer rules
(15A NCAC 2 B .0259) (Sept. 10, 2008) at 2. In those 22
years for which PCS has not proposed mitigation, it would
mine 507.41 acres of terrestrial wetlands, 23.16 acres of
riparian buffers, and 14,362 linear feet of creeks. FEIS
at 6-59. These impacts include 181 acres of wetland
hardwood forests, 66 acres of mixed pine-hardwood forest,
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45 acres of pine forest, and 31 acres of scrub-shrub
assemblage. FEIS at 6-72.
PCS's mitigation proposed under this variance is no
clearer and does not provide evidence it will protect water
quality. Both the request for mitigation credit for
riparian headwater system stream restoration and the
flexible buffer mitigation proposal are vague and
uninformative. First, the riparian system stream
restoration proposal does not identify which sites would be
used for mitigation, an important consideration since the
Tar-Pamlico Buffer Rules require buffer mitigation sites to
be at least as close to the Pamlico River as the impact
sites. 15A NCAC 02B .0260(4). Since it does not identify
where the mitigation would be done, the riparian system
stream restoration proposal cannot describe the extent of
that mitigation, an essential element in determining
whether that mitigation will protect water quality.
PCS's flexible buffer mitigation proposal fares no
better at clarifying the mitigation picture and cannot
demonstrate that it will protect water quality. The
proposal is truly flexible; it does not limit the type or
location of "nutrient reduction" technique. Instead, it
describes vague nutrient reduction techniques, including
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the catch-all authorization for "other similar quantifiable
means of nutrient reduction." PCS Variance Request at 6.
The required effectiveness of those techniques is also
unclear. Under the flexible buffer mitigation plan
included in the FEIS, PCS rejects DWQ's determination of
the nutrient removal effectiveness of existing buffers.
PCS balked at DWQ's finding of 85% removal efficiency,
instead proposing the use of a paltry 30% efficiency
rating. Rather than citing scientific support, PCS's
criticism of the 85t removal efficiency was based on a
finding that using that ratio "would approximately triple
the amount of land required" for its mitigation. FEIS,
Appendix I, Attachment 1 at 5. Not only does PCS's
anything goes mitigation plan fail to demonstrate that
water quality will be protected, it makes clear that PCS's
definition of appropriate mitigation is guided by land
available and minimizing the company's obligation, not
water quality.
The location for any of this proposed flexible
mitigation is also a mystery and makes the water quality
impacts impossible to assess. Although the proposal
suggests the creation of a "broad based stakeholder
advisory group" to assist in selection of mitigation sites,
it does not circumscribe the range of those sites nor does
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it grant that group any real authority. An "advisory
group" that is given no direction or authority cannot
substitute for the Tar-Pamlico Buffer Rules' express
mitigation mandates, including the requirement that all
mitigation sites must be located at least as close to the
Pamlico River as the proposed impacts.
Unfortunately, the DWQ staff is also relegated to
being an "advisory group" under the PCS proposal. While
DWQ staff is granted the authority to negotiate the
selection and imposition of techniques with PCS, the
proposal gives PCS special status by establishing an
immediate appeal process to the Director of DWQ and then
the EMC if DWQ staff denies PCS's project proposal or
requests additional information on the project proposal.
In sum, PCS's proposal promises some unspecified mitigation
at a to-be-determined ratio on unidentified sites, all of
which is enforced by a powerless DWQ staff. This proposal
cannot demonstrate that water quality will be protected,
and therefore the variance must be denied.
IV. THE EMC CANNOT BYPASS THE REGULATORY VARIANCE
REQUIREMENTS BASED ON THE "SPIRIT" OF THE TAR-PAMLICO
BUFFER RULES.
The EMC cannot, as PCS urges, approve this variance
request based on the "spirit" of the Tar-Pamlico Buffer
Rules, ignoring the specific, mandatory criteria
17
established by the rules. Not only does PCS's variance
request fail to address and satisfy those criteria, it also
violates the plainly stated purpose of the rules.
PCS's buffer request violates the purpose and spirit
of the Tar-Pamlico Buffer Rules and threatens buffer
protection rules throughout the state. The request
encourages the elimination of riparian buffers and
undermines the mitigation program established by the Tar-
Pam, Catawba, and Neuse riparian buffer rules. Because of
this impact, PCS's variance request violates the general
purpose of the rules, violates their intent, and must be
denied.
The Tar-Pamlico Buffer Rules have a multi-part purpose
to "protect and preserve existing riparian buffers" and "to
maintain their nutrient removal functions." 15A NCAC 02B
0259(1). This purpose makes clear that the function of
the rules is not simply to reduce nutrient loading within
the Tar-Pamlico river basin, but to do so through a single
proven mechanism - intact, vegetated riparian buffers.
Any variance must be in "harmony" with this purpose
and "preserve[] its spirit" before it can be approved by
the Commission. 15A NCAC 02B .0259(9)(a)(ii). While PCS's
variance request claims that it preserves the spirit and
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intent of the rules, the details of that request belie that
claim.
At the heart of PCS's request is the admission that it
expects to destroy more riparian buffers than it can
mitigate. Thus, its variance request, if granted would
result in a net loss of riparian buffers within the Tar-
Pamlico River basin. As indicated in the request, PCS
would mitigate for less than half of the "existing riparian
buffers" that it would eliminate. Even assuming that all
of the 26 acres of proposed mitigation are successful,
which is unlikely, nearly 30 acres of buffer removal will
not be mitigated with buffer creation as prescribed by the
Tar-Pamlico Buffer Rules. That net loss cannot be in
"harmony" with a regulation intended to "protect and
preserve existing riparian buffers."
Moreover, this variance request, if approved, would
set a precedent that would undermine the riparian buffer
protection rules in the Tar-Pamlico, Neuse, and Catawba
river basins. The Neuse and Catawba buffer rules are
substantially similar to the Tar-Pamlico Rules, and
therefore are affected by this variance request. The sole
basis for this request is that the degree of buffer impact
is so great that it cannot be mitigated. Accepting this
variance request would signify that any party in one of
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these three river basins could bypass the detailed
mitigation requirements in their respective rules by
destroying more existing riparian buffers.
Ignoring the mandatory variance criteria in the rules
to accept this variance would further set up an inequality
that gives preference to large, powerful landowners over
smaller landowners. This variance sets up a system where
large landowners, by destroying more buffers than they can
mitigate for, bypass mitigation requirements, while small
landowners that impact a much smaller stretch of riparian
buffers are held to the requirements of the buffer rules.
Such preference does not constitute "substantial justice"
and therefore this variance request must be denied. 15A
NCAC 02B .0259(9)(a)(iii).
V. THE WATER QUALITY COMMITTEE SHOULD GRANT THE MOTION TO
INTERVENE PURSUANT TO RULE 24 OF THE RULES OF CIVIL
PROCEDURE OR N.C. GEN. STAT. § 150E-23(D) BECAUSE THE
INTERVENORS HAVE PARTICULARIZED INTERESTS THAT ARE NOT
REPRESENTED BY PCS OR THE DIVISION OF WATER QUALITY.
A. The Interests of the Intervenors.
The Pamlico-Tar River Foundation, Inc. ("PTRF")
is a North Carolina not-for-profit corporation founded in
1981. For generations, the Tar-Pamlico River has supported
life in the watershed, and its future health is directly
tied to the future of the region. PTRF strives to
preserve the high quality of life of residents in the Tar-
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Pamlico watershed by protecting the river's environmental
resources.
Heather Jacobs, the Pamlico-Tar Riverkeeper, regularly
works on the Pamlico River. She boats, swims, and
recreates on the waters of the Pamlico. She leads field
trips throughout the Pamlico for the education and pleasure
of PTRF members, members of the public, school groups, and
summer camp groups. As a member and employee of PTRF,
Jacobs is responsible for monitoring the Pamlico River to
prevent further water quality degradation. Jacobs has
represented PTRF on the Review Team convened to provide
input during PCS's Clean Water Act permit process.
PTRF presently has approximately 2,500 members, the
majority of whom live and work on or near the Pamlico and
Tar Rivers. PTRF has its principal office in Washington,
Beaufort County, North Carolina. Many PTRF members visit,
recreate, fish, hunt, boat, swim, view wildlife, and
otherwise use and enjoy the waters of the Pamlico River.
Protecting the quality of the nutrient-sensitive
waters of the Pamlico River is one of PTRF's central
missions. The organization is involved in educational
initiatives, documenting environmental impacts on the
river, legislative efforts, and submitting comments during
regulatory rulemaking. PTRF, and its members, and Jacobs
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have an interest in seeing the dictates of the riparian
buffer rules protected and enforced. PTRF and Jacobs are
persons aggrieved pursuant to § 150B-2(6).
The Neuse River Foundation ("NRF") is a non-profit
organization created to improve water quality and to
preserve the Neuse River. NRF's nearly 3,100 members live
and work throughout the Neuse River Basin, and many
recreate, fish, boat, swim, drink, and otherwise use and
enjoy the waters of the Neuse River. Larry Baldwin, the
Lower Neuse Riverkeeper, regularly works on the Neuse
River. He boats, fishes, swims, and recreates on the
waters of the Neuse. He leads field trips throughout the
Neuse for the education and pleasure of NRF members,
members of the public, school groups, and summer camp
groups. As a member and employee of NRF, Baldwin is
responsible for monitoring the Neuse River to prevent
further water quality degradation.
NRF has been involved in water quality issues in the
Neuse River Basin since its inception in 1980. As part of
their mission to protect water quality in the Neuse River,
NRF and Baldwin have worked to strengthen North Carolina's
riparian buffer rules. The Neuse Buffer Rules regarding
riparian buffer protection, mitigation, and variances are
substantially similar to the Tar-Pamlico Buffer Rules and
22
therefore, the Commission's application of those
requirements and consideration of this variance from those
requirements directly affects NRF. NRF and Baldwin are
persons aggrieved because their interests are "directly or
indirectly affected substantially in [their] person,
property, or employment" by the approval of the PCS's
requested variance. N.C. Gen. Stat. § 150B-2(6) (2003).
The Catawba Riverkeeper Foundation, Inc. ("CRF") is a
non-profit, tax-exempt organization formed pursuant to the
laws of the state of North Carolina. It is dedicated to
advocating for and securing the protection and enhancement
of the Catawba River, its lakes, tributaries, and watershed
so that it will always sustain the human and wildlife
populations that depend on it for life. The Catawba
Riverkeeper Foundation was founded in 1997 and has more
than 600 members, the majority of whom live, work, and pay
taxes in one of the fourteen counties that border the
Catawba River. CRF members regularly use and enjoy the
Catawba River for hiking, fishing, swimming, kayaking,
canoeing, boating, water skiing, and bird watching.
Additionally, members rely on the Catawba River as a source
of drinking water.
The Catawba River basin is protected by rules that are
substantially similar to the Tar-Pamlico Buffer Rules,
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including the provisions protecting riparian buffers,
requiring mitigation, and allowing variances for prohibited
activities. CRF has worked with DWQ to protect the
existing riparian buffers in the Catawba River basin.
Because the Catawba River basin is under threat from large
development projects that may utilize similar variance
requests to eliminate buffers under the Catawba Buffer
Rules, the Commission's application of the Tar-Pamlico
Buffer Rules and consideration of this variance from the
Tar-Pamlico Buffer Rules affects CRF. CRF is a "person
aggrieved" because their interests are "directly or
indirectly affected substantially in [their] person,
property, or employment" by the approval of the PCS's
requested variance. N.C. Gen. Stat. § 150B-2(6) (2003).
The Environmental Defense Fund ("EDF"), representing a
national board and membership of approximately 350,000
individuals, is dedicated to protecting the integrity and
function of important ecosystem resources and processes,
including wetlands and other aquatic systems. With more
than 8,500 members in North Carolina, EDF has had a formal
presence in the state since 1987. Since the establishment
of the North Carolina office, EDF has been intimately
engaged in the environmental affairs of eastern North
Carolina and specifically with the issues related to
24
protection of wetlands and water quality at the PCS
facility (then Texasgulf Chemicals Company).
Since 1987, EDF has been directly engaged in multi-
agency discussions relating to proposed mining advance
scenarios, which would disrupt thousands of acres in the
central Pamlico watershed. EDF has reviewed and commented
on a series of mine advance and mitigation documents,
including those produced in the inter-agency discussions
that have been convened by the U.S. Army Corps of Engineers
since 2001. EDF has been a member of the Corps' Review
Team convened to provide input during PCS's Clean Water Act
permit process. EDF is a "person aggrieved" pursuant to
the North Carolina Administrative Procedures Act, N.C. Gen.
Stat. H 150B-2(6), 150B-23.
The North Carolina Coastal Federation ("Coastal
Federation") is a non-profit, tax-exempt organization
dedicated to the promotion of better stewardship of coastal
resources. The Coastal Federation was founded in 1982 and
has approximately 8,000 members, including numerous members
who live near, shellfish or fish in, or regularly visit the
Neuse estuary, Pamlico Sound, and nearby coastal waters.
These waters would be affected by the requested variance
and the weakening of the Tar-Pamlico and Neuse buffer
rules. Thus, NCCF is a "person aggrieved" pursuant to the
25
North Carolina Administrative Procedures Act. N.C. Gen.
Stat. H 150B-2(6), 150B-23.
Part of the Coastal Federation's purpose is to protect
coastal waters and estuaries for the use and enjoyment of
all of the citizens of the state. As.part of this work,
the Coastal Federation has played a lead role in
investigating, documenting, publicizing, and seeking
enforcement of violations of state and federal
sedimentation, stormwater, water quality, and wetlands
laws. In addition, to protect coastal waters from
degradation from stormwater-borne pollutants, the Coastal
Federation is working extensively through the state
regulatory process to improve and strengthen the State's
stormwater control program applicable to coastal areas.
The Coastal Federation's continuing interest in the
stewardship of coastal resources from polluted runoff is
indisputable. Coastal Federation staff members have
attended nearly every meeting of the Coastal Resources
Commission ("CRC") since the Coastal Federation was
established in 1982. The Coastal Federation has actively
participated in the deliberations and rulemaking
proceedings initiated by the CRC and the Environmental
Management Commission that relate to wetlands, stormwater,
water quality, coastal outstanding resource waters, and
26
shellfish issues, and has been a party to several
administrative and judicial appeals related to these
matters. Through regular participation in informal and
formal proceedings and through its broader public education
efforts, the Coastal Federation represents its members'
interests in the appropriate stewardship of North
Carolina's coastal resources, including its public trust
waters. The Coastal Federation has organized and led
public forums for public education and discussion about
coastal stormwater programs and related topics.
B. Intervention should be granted pursuant to Rule
24 of the Rules of Civil Procedure or, in the
alternative, pursuant to N.C. Gen. Stat. § 150B-
23 (d) .
This motion to intervene should be granted because
variance petitions presented to the EMC are considered
contested cases, Rule 24 of the Rules of Civil Procedure
governs intervention in contested cases, and Intervenors
satisfy the requirements for intervention as of right under
Rule 24. Alternatively, Intervenors merit intervention
under the Commission's discretion established by N.C. Gen.
Stat. § 150B-23(d).
27
The EMC's Internal Operating Procedures define
variance petitions as contested cases. Contested cases
include both "permit appeals and variance petitions. ,2
As a result, variance petition procedures "are governed by
Article 3 of Chapter 150B of the General Statutes." Id. §
6; see also N.C. Gen. Stat. § 143B-282.1(a) ("With respect
to those matters within its jurisdiction, the Environmental
Management Commission shall exercise quasi-judicial powers
in accordance with the provisions of Chapter 150B of the
General Statutes").3 Under N.C. Gen. Stat. § 150B-23(d),
there are two distinct ways in which a person can
intervene. First, "[a]ny person may petition to become a
party by filing a motion to intervene in the manner
provided in G.S. 1A-1, Rule 24." N.C. Gen. Stat. § 150B-
23(d). Should a person fail to qualify to intervene under
Rule 24, the Commission may still allow intervention in its
discretion. See id.
Rule 24 states that "anyone shall be permitted to
intervene" when they meet three criteria. N.C. Gen. Stat. §
1A-1(24). First, the person must establish that they have
an interest that is the subject of the action. Second, the
2 Art. XI, § 5, INTERNAL OPERATING PROCEDURES OF THE ENVIRONMENTAL MANAGEMENT
COMMISSION OF NORTH CAROLINA,
http;//h2o.enr.state.nc.us/admin/emc/emcbylaws.pdf. (emphasis added)
3 The Water Quality Committee, as a committee of the EMC that carries
out duties delegated by the EMC, is subject to the same procedural
requirements as the full Commission.
28
person must demonstrate that they will not be able to
protect those rights if not permitted to intervene.
Finally, the person must show that existing parties do not
represent their interest. Id.
Intervenors clearly satisfy Rule 24. The Pamlico-Tar
River Foundation, Pamlico-Tar Riverkeeper, Lower Neuse
Riverkeeper, Neuse River.Foundation, Catawba Riverkeeper
Foundation, Environmental Defense Fund, and North Carolina
Coastal Federation ("Intervenors") are conservation
organizations that are substantially involved in protecting
and preserving the Tar-Pamlico River, Neuse River, and
Catawba River Basins. Together they represent more than
22,100 members that include property owners, commercial and
recreational water users, and nature enthusiasts within the
watersheds that the proposed variance would affect.
Excluding Intervenors from this proceeding would preclude
them from protecting these interests. The September 10,
2007 Water Quality Committee meeting constitutes the only
opportunity to appear before the Commission to establish
the legal and factual basis for rejecting the proposed
variance. Should the Commission deny this motion,
Intervenors will have no avenue to protect their interests
before the Commission. Finally, no existing party
represents the interests of PTRF, NRF, CRF, EDF, and the
29
Coastal Federation. In fact, no party has expressed
opposition to the variance. As the proponent of the
variance, PCs represents decidedly different interests than
those of Intervenors, conservation organizations opposed to
this proposed skirting of the rulemaking process. DWQ has
supported PCs, and therefore clearly does not represent the
interests of these conservation organizations seeking to
uphold the Tar-Pamlico Buffer Rules. Intervenors satisfy
each of the three criteria in Rule 24 and are entitled to
intervene as of right in the PCs variance request before
the WQC.
Even if the WQC finds that Intervenors do not satisfy
Rule 24, it should grant this motion to intervene in its
discretion under N.C. Gen. Stat. § 150B-23(d). That
determination is independent of, and unaffected by, the
determination under Rule 24. According to the N.C.
Supreme Court, this section allows "discretionary
intervention [] without limitation . . . and . . .
provide[s] intervention broader than the permissive
intervention under Rule 24." State ex rel. Comm'r of Ins.
v. N.C. Rate Bureau, 269 S.E.2d 538, 543 (N.C. 1980).
Discretionary intervention is appropriate here for a
myriad of reasons. First, PCs is proposing a substantial
variance from the Tar-Pamlico Buffer Rules through this
30
request with no opposition from DWQ. Allowing intervention
could provide a more well-rounded analysis of the
environmental and legal consequences of the variance.
Second, Intervenors provide a distinct vantage point,
wholly separate from PCS and DWQ that provides a different
perspective on the harm that would result from this rule
overhaul. Finally, as discussed above in relation to Rule
24, intervention is necessary to protect the interests of
the members of PTRF, NRF, CRF, FDF, and the Coastal
Federation; the interests of over 22,100 individuals.
31
l4ALTh T.TTQ,rr%xT
For all the reasons discussed above, Intervenors
request that the Commission grant Intervenors' motion to
intervene and deny PCS's request for a variance.
Intervenors also request the opportunity to address the
Water Quality Committee and the Commission in support of
this motion and in opposition to PCS's variance request.
rh
Respectfully submitted this ff day of August, 2008.
Derb S. Carter, Jr.
NC Bar No. 10644
Geoffrey R. Gisler
NC Bar No. 35304
Southern Environmental Law Center
200 W. Franklin Street, Suite 330
Chapel Hill, NC 27516
Telephone: [phone]
Facsimile: [phone]
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