20080868 Ver 2_PCS Mining Exp Legal Response GH_20081022

BROOgS, PIERCE, MCLENDON, HUMPHREY & LEONARD, L.L.P.
RALEIGH OFFICE
160o WACHOVIA CAPITOL CENTER
1 so FAYETTEV I LLE STREET (27601)
POST OFFICE BOX 1800 (27602)
RALEIGH. NORTH CAROLINA
ATTORNEYS AND COUNSELLORS AT LAW
FOUNDED 1897
2000 RENAISSANCE PLAZA
230 NORTH ELM STREET
POST OFFICE Box 26000
C7REENSBORO. NORTH CAROLINA 27420
October 20, 2008
www.brookspierce.com
TELEPHONE: (336) 373-B850
FACSIMILE: [phone]
WRITER'S DIRECT DIAL
336-271-3114
VIA FEDERAL EXPRESS DELIVERY D ^ ??n
Mr. Paul Rawls, Section Chief
Surface Water Protection Section O C T 2 2 2008
Division of Water Quality
Department of Environment and Natural Resources DENR WATER QUALITY
yyE'('(,ANDS AND STORMYVATER BRANCH
512 North Salisbury
Raleigh, NC 27604
Re: Proposed PCS Phosphate Mine Expansion - 401 Water Quality Certification
Dear Mr. Rawls:
Our firm serves as environmental counsel for PCS Phosphate Company, Inc. ("PCS").
PCS has requested that we respond to two issues raised in your letter to Mr. Ross Smith dated
August 7, 2008: (1) DENR's demand that certain wet hardwood flats on the Bonnerton tract must
be avoided because of communications from the Natural Heritage Program; and (2) DENR's
demand that PCS convey permanent conservation easements on two categories of land: (a) those
tracts that will be bypassed and not mined, and (b) those tracts that will be mined but reclaimed
after the completion of mining operations. We do not believe that DENR has the authority to
impose these requirements.
I. Bonnerton Tract Hardwood Flats
In your August 7, 2008 letter, you state the following:
As you know, staff from the NC Natural Heritage Program have determined that
several hardwood flats on the Bonnerton tract have been identified as Nationally
Significant Natural Heritage Areas. Staff from that program have reviewed your
additional information concerning these sites dated July 9, 2008 (Affidavit of
Curtis Brown and Exhibit A attached) and have still concluded that these sites are
nationally significant. Therefore, please address how you will avoid these areas in
your mining of the Bonnerton Tract. As discussed in our July 9 meeting, DWQ
plans to condition the 401 Certification to avoid mining of these wetlands.
Mr. Paul Rawls, Section Chief
October 20, 2008
Page 2
Your assumption and statement that DWQ has authority to condition 401 certification on
the complete avoidance of these areas is incorrect for at least three reasons.
A. Bonnerton Tract Hardwood Flats Are Not "Natural Areas"
First, as demonstrated in the Affidavit of Curtis Brown (previously submitted and
attached again hereto), and further set forth in the statement of Mike Schafale of DENR's
Natural Heritage Program (dated July 15, 2008 and attached as Exhibit A to your August 7
letter), the present condition of the subject tracts is due to past forestry practices and selective
logging activities: the removal of commercially valuable soft- and hardwoods and, in some areas,
clear-cutting. The Schafale assessment notes that the "current condition can be attributed to past
logging." As such, the tracts cannot be properly identified as "Significant Natural Heritage
Areas" ("SNHA") under the North Carolina Natural Heritage Program because the areas do not
meet the requisite statutory definition of "natural area." See N.C. Gen. Stat. § 113A-164.3(3)
(defining "natural area" as "an area of land, water, or both land and water, whether publicly or
privately owned, that (i) retains or has reestablished its natural character, (ii) provides habitat for
rare or endangered species of plants or animals, (iii) or has biotic, geological, scenic, or
paleontological features of scientific or educational value.") We do not believe there is
evidentiary support for a finding that the subject tracts may be properly identified as "natural
areas" under the North Carolina Natural Heritage Program, let alone Nationally Significant
Natural Heritage Areas.
B. "Significant Natural Heritage Area" Identification Does Not Confer
Protected Status
Second, even if the Bonnerton hardwood flats could be identified as SNHA, this
identification does not have, and cannot have, any regulatory significance.
The Nature Preserves Act (N.C. Gen. Stat. 113A-164.1 et seq.) contemplates two primary
programs: creation of a Registry of Natural Heritage Areas (not the same as listing a property as
a Significant Natural Heritage Area ("SNHA"), as discussed below), and establishment of a
mechanism for dedication of property to nature preserves. Both the statute 1 and the regulations z
' N.C. Gen. Stat. § 113A-164.5: Registration is "accomplished through voluntary
agreement."
2 15A NCAC 12H.0201: "The Registry is a voluntary, non-regulatory, non-binding
recognition program." Similarly, § 12H.0203(d): "The registration of a site is ultimately the
voluntarily decision of the landowner...." See also § .0204(a) ("A natural area shall become
officially registered when a voluntary agreement to protect the site for its specified natural values
has been signed by the owner....") and § .0205 (providing that registration may be terminated at
any time by either party).
Mr. Paul Rawls, Section Chief
October 20, 2008
Page 3
make clear that the landowner's participation in either program (Registry or dedication) is
entirely voluntary. In fact, the title of the original Act as passed by the General Assembly was:
"An Act to Provide for the Voluntary Registration and Dedication of Natural Areas." 1985
Session Laws, Chapter 216, page 182 (Senate Bill 147). Ancillary to these two main functions
of the Act, the statute requires the Secretary to maintain the Natural Heritage Program ("NHP")
in order to "provide assistance in the selection and nomination for registration or dedication of
natural areas." N.C. Gen. Stat. § 113A-164.4(3). The NHP is to "include classification of
natural heritage resources, an inventory of their locations, and a data bank of that information."
Id. Further, the statute requires the preparation of a Natural Heritage Plan, which is to "govern
the Natural Heritage Program in the creation of a system of registered and dedicated natural
areas." N.C. Gen. Stat. § 113A-164.4(4). The criteria for "selection, registration and dedication
of natural areas and nature preserves" are to be established by rule. N.C. Gen. Stat. § 113A-
164.4(1). Finally, the statute also calls for creation of an Advisory Committee for the purpose of
advising the Secretary on the "identification, selection, registration, dedication, and protection of
natural areas and natural preserves." N.C. Gen. Stat. § 113A-164.4(6).
Rules for the Registry and for dedication procedures have in fact been adopted pursuant
to the APA. 15A NCAC 12H. However, no rules have been established pursuant to the APA for
inventorying sites or listing3 properties as SNHA. Publications of the NHP make clear that
listing a property as SNHA carries no regulatory significance: "Inclusion on this list does not
confer protection to a site, nor does it give sites regulatory status or indicate that they have
regulatory status with any agency." N.C. Natural Heritage Program Biennial Protection Plan,
2005, Office of Conservation and Community Affairs, Department of Environment and Natural
Resources. Similarly: "How does the inventory affect landowners?... The Natural Heritage
Program is not a regulatory program and our sites carry no protection status of their own."
(www.ncnhp.org/Pages/countysummariesl.htm). N.C. Natural Heritage Program website,
County Natural Area Inventories.
A general description of the SNHA listing process is included in the most recent NH Plan
(2005), and includes criteria that are significantly broader4 than the statutory definition of
properties which are subject to the Act's intended goals of registration or dedication.5 As an
NHP representative explained in a recent telephone conversation the decision to list a property as
3 "List" is the term of art used by NHP; it does not refer to SNHA as a designation or
categorization.
4 The 2005 NC Natural Heritage Program Biennial Protection Plan describes the SNHA
list (p. l) as follows: "The list is based on the program's inventory of the natural diversity in the
state. Natural areas (sites) are evaluated on the basis of the occurrences of rare plant and animal
species, rare or high quality natural communities and special animal habitats."
5 See definition of "natural area." N.C. Gen. Stat. § 113A-164.3(3).
Mr. Paul Rawls, Section Chief
October 20, 2008
Page 4
SNHA is reached after: (1) a field biologist has conducted a survey and found the existence of a
rare plant or animal species, or the existence of a rare or high quality natural community (even in
the absence of a specific rare plant or animal); and (2) the scientific staff has discussed the
property and reached a consensus on listing. The decision to list a property as SNHA is not
reviewed by the Advisory Committee or subjected to public hearing or rule-making because, the
representative said, "it is not a legal designation" and does not carry any regulatory significance.
The NHP representative was not aware of SNHA listing being used in the Section 401 process,
commenting that "maybe they don't understand our program;" and agreed that subjecting the
SNHA listing decision to Advisory Committee action (they meet only twice per year), public
hearing, or rule-making would significantly impede the inventory process.
While the enabling statute authorizes the necessary preliminary work of inventorying the
State's natural heritage resources, the NHP's purpose is to "provide assistance in the selection
and nomination for registration and dedication of natural areas," N.C. Gen. Stat. § 113A-
164.4(3), both voluntary programs. There is no mandate to independently categorize or rank all
North Carolina property for any other purpose. Further, by statute it is the Advisory Committee,
not the agency, which is empowered to advise the Secretary on the identification and selection of
areas for protection. N.C. Gen. Stat. § 113A-164.4(6). The Rules confirm this. See, e.g., 15A
NCAC 12H.0105(c). However, the Advisory Committee does not hold public hearings or even
have input on the decision to list a property as SNHA. While conducting an inventory is
authorized, there is no authority to impose a categorization scheme that would impact land use,
and indeed the agency itself believes that its SNHA listings do not have any regulatory effect, as
noted above.
PCS has never consented to the SNHA listing of the Bonnerton tract, and, to the best of
our knowledge, PCS has not been informed that the responsible agency has or will suggest that
the tract be included in the Registry. Furthermore, PCS will not consent to inclusion in the
Registry.
There is no basis for DENR to assert that the identification of the Bonnerton tract
hardwood flats areas as SNHA confers any protected status pursuant to the Section 401 process
or otherwise.
C. Section 401 Certification Cannot Be Conditioned On Avoidance Of
SNHA
Third, even if the Bonnerton tract hardwood flats areas were properly listed as SNHA, it
is not appropriate to give SNHA identification any significance in the Section 401 evaluation,
which relates to water quality and wetlands use determinations, and any impacts to these areas
may be mitigated, if necessary and appropriate.
Mr. Paul Rawls, Section Chief
October 20, 2008
Page 5
Presumably, DENR is relying on 15A NCAC 2H.0506(e) for its assertion that it may
condition the 401 certification on the complete avoidance of SNHA. This reliance is misplaced.
15A NCAC 2H.0506(e) provides that:
The Director shall issue a [401] certification upon determining that significant
existing uses are not removed or degraded by a discharge to wetlands of
exceptional state or national ecological significance including but not limited to
Class UWL wetlands, and wetlands that have been documented to the satisfaction
of the Director as habitat essential for the conservation of state or federally listed
threatened or endangered species, provided that the wetlands have been so
classified or designated prior to the date of application for certification or a draft
environmental impact statement has been submitted to the Director, for an activity
which satisfies Subparagraphs (c)(2)-(5) and (d)(1)-(2) and:
(1) the wetland impacts are necessary for the proposed project to meet a
demonstrated public need; and
(2) provides for replacement of existing uses through wetland mitigation
under U.S. Army Corps of Engineers requirements, or as described in
Subparagraphs (h)(1)-(7) and (10) of this Rule.
As an initial matter, contrary to the focus of the 401 certification, SNHA listing relates to
an evaluation of resource diversity. 15A NCAC 12H.0101. It is not specifically related to water
quality or wetlands protection, and their hydrological connection with traditional waters is
tenuous at best. Significantly, DENR has not sought UWL status for this tract. In fact, it appears
that the only SNHA sites for which UWL status has been sought are all publicly owned or
controlled.6 An attempt to overlay SNHA status as a supplemental category of wetlands for
Section 401 purposes would also circumvent the established procedures for assignment of water
quality standards. See 15A NCAC Subchapter 2B. That kind of evaluation was not conducted
with respect to the Bonnerton tract when it was listed as SNHA.
Furthermore, the Bonnerton tract areas have not been identified as essential habitat for
federally listed or endangered species and have not been classified as UWL wetlands; and the
subject areas have not been classified or designated - by listing in the Registry - prior to the
Section 401 certification application by PCS. Finally, the rule clearly contemplates mitigation
efforts to address any impacts, and does not require the complete avoidance of areas that may
come within the requirements of the rule.
6 Sept. 13, 2007 Minutes of EMC, reclassifying 33 wetland tracts.
Mr. Paul Rawls, Section Chief
October 20, 2008
Page 6
In summary, the identification of Bonnerton tract areas as SNHA is improper, does not
and cannot confer regulatory protected status on these areas, and Section 401 certification cannot
be conditioned on complete avoidance of these areas.
II. Permanent Conservation Easement Requirement
It is our understanding that DENR has asserted that, as a condition of issuing 401
certification, DENR may require PCS to convey permanent conservation easements on tracts that
will be undisturbed, bypassed or reclaimed in the proposed expansion of mining operations. We
believe that these assertions are incorrect, as it does not appear that there is any federal or state
authority in support of a requirement by a state or federal agency that PCS convey permanent
conservation easement(s) on specific tract(s) of land pursuant to Section 401 certification,
Section 404 permitting, mining reclamation statutes or regulations, or otherwise.
A. Section 401 Authority
As to Section 401 certification, DENR does have authority under Section 401 and
pursuant to 15A NCAC 2H.0506(h) to require mitigation measures to address unavoidable
degradation of waters and wetlands, and such measures may include, as the least preferred
option, "preservation: protection of wetlands through purchase, donation or conveyance of a
conservation easement to an appropriate government or non-profit agency for management."
15A NCAC 2H.0506(h)(4)(D). This authority may include the ability to require conservation
easements within particular areas for hydrological or ecological reasons in accordance with the
impacts to be mitigated, if such mitigation measures are proposed by the applicant, PCS.
However, there is no authority for DENR to unilaterally require that PCS convey permanent
conservation easements on specific tracts of land.
The State's Section 401 water quality certification regulations are set forth in 15A NCAC
2H.0500, and are promulgated pursuant to Section 401 and N.C. Gen. Stat. Ch. 143 Art. 21 and
§§ 143-215.3(a)(1); 143-215.3(c); and 143B-282(1)(u) ("To administer the State's authority
under 33 U.S.C. § 1341 of the federal Clean Water Act."). 15A NCAC 2H.0500 regulations
"only apply to specific activities which require state review... and which require a...
determination concerning effects on surface waters or wetlands." 15A NCAC 2H.0501.
To address unavoidable losses of existing uses of surface waters or wetlands, the Director
is required to "coordinate mitigation requirements with other permitting agencies that are
requiring mitigation for a specific project." 15A NCAC 2H.0506(h)(1). Participation by the
applicant in wetland restoration programs coordinated by DENR are preferred to individual
project mitigation. 15A NCAC 2H.0506(h)(2).
Mr. Paul Rawls, Section Chief
October 20, 2008
Page 7
Acceptable methods of wetlands mitigation include the following, in order of preference:
(A) Restoration: the re-establishment of wetland hydrology and vegetation in an
area where it previously existed.
(B) Creation: the construction of a wetland in an area where wetlands did not exist
in the recent past.
(C) Enhancement: increasing one or more of the functions of an existing wetland
by manipulation of vegetation or hydrology.
(D) Preservation: protection of wetlands through purchase, donation or
conveyance of a conservation easement to an appropriate government or non-
profit agency for management.
15A NCAC 2H.0506(h)(4).
"Restoration is the preferred method of wetlands mitigation. The other methods may be
utilized if the applicant can demonstrate that restoration is not practical or that the proposed
alternative is the most ecologically viable method of replacing the lost functions and values."
15A NCAC 2H.0506(h)(5).
Mitigation for different classes of wetlands must be conducted, when practical, within the
same river basin, sub-basin, physiographic province and water supply watershed, and be of the
same wetland type. See 15A NCAC 2H.0506(h)(8-10). However, DENR must not "duplicate the
site-specific application of any guidelines employed by the United State Army Corps of
Engineers in evaluating permit applications under 33 U.S.C. 1344 and applicable federal
regulations." 15A NCAC 2H.0506(h)(8-10).
Although there is authority for an applicant to propose, and DENR to accept,
conservation easements as part of the mitigation measures to address unavoidable losses of
existing uses of surface waters or wetlands, preservation is the least preferred mitigation option.
Moreover, although mitigation efforts may be proposed by the applicant and required to be
undertaken within a particular area in accordance with the code provisions, based on ecological
and hydrological concerns, there does not appear to be any authority for DENR to require that
PCS convey permanent conservation easements on particular tracts of land pursuant to Section
401, related state or federal statutes and regulations, or otherwise.
B. Section 404
The Corps has regulatory authority pursuant to Section 404 and 33 CFR 332.3 to "require
on-site, off-site, or a combination of on-site and off-site compensatory mitigation to replace
permitted losses of aquatic resources functions and services." 33 CFR 332.3(d)(2),
(3)("applicants should propose compensation sites adjacent to existing aquatic resources or
Mr. Paul Rawls, Section Chief
October 20, 2008
Page 8
where aquatic resources previously existed."). With respect to conservation easements,
"preservation may be used to provide compensatory mitigation for activities" when all of the
following criteria are met: (1) "the resources to be preserved provide important physical,
chemical, or biological functions for the watershed" 33 CFR 332.3(h)(1)(i); (2) "the resources to
be preserved contribute significantly to the ecological sustainability of the watershed" 33 CFR
332.3(h)(1)(ii); (3) "preservation is determined by the district engineer to be appropriate and
practicable" 33 CFR 332.3(h)(1)(iii); (4) "the resources are under threat of destruction or adverse
modifications" 33 CFR 332.3(h)(1)(iv); and (5) "the preserved site will be permanently protected
through an appropriate real estate or other legal instrument (e.g., easement, title transfer to state
resource agency or land trust)." 33 CFR 332.3(h)(1)(v).
The Section 404 authority of the Corps, similar to that of DENR pursuant to Section 401
and the state statutes and regulations discussed above, is restricted to particular circumstances,
and clearly contemplates that any requirement of a permanent conservation easement as a
preservation mitigation measure would be voluntarily proposed by the applicant as one of the
least preferred mitigation options.
C. Mining Reclamation
State mining statutes and regulations do not address permanent conservation easements,
do not confer any authority to any state entity regarding such measures, and do not suggest that a
permanent conservation easement or conveyance of land may be required by any state authority
as a condition of a mining permit, as a required reclamation measure, or otherwise. See N.C.
Gen. Stat. 74-46 et seq. ; 15A N.C.A.C. Ch. 5.
In summary, while PCS must propose and carry out mitigation measures to address
unavoidable impacts in accordance with applicable state and federal statutes, rules and
regulations, there simply does not appear to be any federal or state authority for any state or
federal agency to unilaterally impose a requirement that PCS convey permanent conservation
easements as a condition of Section 401 certification or Section 404 permitting.
We look forward to working with you to obtain 401 certification.
S' erely,
George W. ouse
GWH/mfm
Enclosures
Mr. Paul Rawls, Section Chief
October 20, 2008
Page 9
cc: Sec. William G. Ross, Jr. DENR
John Dorney, DENR
Mary Penny Thompson, Esq., DENR
Colleen Sullins, DENR
Ross Smith, PCS Phosphate, Company, Inc.
Tom Walker, USACE
Brooke Lamson, Esq. USACE
Derb Carter, Esq., SELC
AFFIDAVIT OF CURTIS BROWN
I am employed as the Land Supervisor for the Aurora operations of PCS Phosphate
Company, Inc. ("PCS") and have held that position since 1975. I have been directly
responsible for managing the timber assets of PCS since the year 2000. I manage in
excess of 25,000 acres of PCS timberland.
Since 2000, I have consulted regularly with forester, David C. Austin, a representative of
Superior Land and Timber Corporation regarding the appropriate time to timber PCS
forest properties to maximize income. In seven years under my management, I have
generated $5,162,700 income for PCS, an average of $737,528 per year.
Silvicultural activities have been and are conducted independently of mining operations.
Each year, I include income and expense estimates within the Land Management budget
for the harvest and re-planting of trees. The decision of when and what timber needs to be
cut is based upon the maturity of various stands and the market for each forest species.
PCS timbering includes both clear-cutting and selective thinning, as well as active
reforestation, depending upon what method is appropriate for the acres being timbered.
On occasion, we have arranged clear-cutting of timber from the path of permitted mining
when requested by the mining group, but this action is the exception to PCS silviculture
management activities.
Land acquisition and the timber management records are maintained in my office under
my supervision.
I have reviewed the files related to the twelve parcels that comprise the Significant
Natural Heritage Area (SNHA) designated by the North Carolina Natural Heritage
Program (NCNHP) on the Bonnerton tract. They are identified on Exhibit A attached as
follows:
1. W. B. Gray ......... 17.47 acres.
2. M. M. Gray ........ 36.38 acres.
3. D. D. Bonner ....... 71.90 acres.
4. T. W. Bonner ....... 61.32 acres.
5. B. B. Ross ......... 71.55 acres.
6. W. B. Gray ......... 16.70 acres.
7. D. D. Bonner ........ 7.90 acres.
8. Earl Bonner ........ 99.20 acres.
Page 2
Affidavit - Curtis H. Brown
July 7, 2008
9. Vance Bonner ....... 16.35 acres.
10. M. W. Ingram ...... 37.60 acres.
11. Matilda Tuten ...... 16.08 acres.
12. Icelenor Simpson ... 18.02 acres.
Information contained in the Land Office files and obtained from personal interviews
with former owners indicates:
1. The W. B. Gray tract was acquired by PCS on June 27, 1967. At the time of
acquisition, the former owner retained timber-cutting rights for one year. Logging trails
are clearly visible on an aerial photograph dated March 17, 1970 in records I maintain. I
have interviewed Mr. W. B. Gray, Jr., son of the former owner, who recalls that his father
harvested timber from this tract upon its sale to Texasgulf.
2. The M. M. Gray tract was acquired by PCS on October 19, 1966. In a Forest Land
Appraisal dated November 21, 1966, Mr. Robert L. Smith, Forester, stated "Ernest
Moore, logger, is presently logging this tract and has been instructed by Mrs. Jennie M.
Gray to clear cut all merchantable timber. Appears to be about 3,000 board feet per acre,
half pine and half hardwood". Logging trails are clearly visible on an aerial photograph
dated March 17, 1970.
3. The D. D. Bonner tract was acquired by Weyerhaeuser/North Carolina Phosphate
Corporation on August 3, 1960. PCS acquired the property from NCPC on April 27,
1982. Weyerhaeuser managed silvicultural activities on the Bonner tract from 1960 until
1979. Records indicate that all timber was removed by Weyerhaeuser as of December 20,
1978. PCS selectively thinned a portion of this tract in 2002.
4. The T. W. Bonner tract was acquired by PCS on August 31, 1964. At the time of
acquisition, former owners retained timber-cutting rights for one year. Marketable timber
was harvested. Logging trails are clearly visible on an aerial photograph dated March 17,
1970. PCS clear cut a portion of this tract in 2007.
5. The B. B. Ross tract was acquired by PCS on August 3, 1963. A timber cruise by
Robert L. Smith, Forester, on August 1, 1963 revealed that this tract contained pine saw
timber, pine pulpwood, gum saw timber, oak saw timber, maple saw timber and
hardwood pulpwood. Logging trails are clearly visible on an aerial photograph dated
March 17, 1970.
Page 3
Affidavit - Curtis H. Brown
July 7, 2008
6. The W. B. Gray tract was acquired by PCS on November 6, 1964. A Forest Land
Appraisal by Robert L. Smith, Forester, dated June 11, 1965 reveals that all commercial
timber was harvested by the former owner before giving up possession.
7. The D. D. Bonner tract was acquired by Weyerhaeuser/North Carolina Phosphate
Corporation on August 3, 1960. PCS acquired the property from NCPC on April 27,
1982. Weyerhaeuser managed silvicultural activities on the Bonner tract from 1960 until
1979. Records indicate that all timber was removed by Weyerhaeuser as of October 16,
1979. PCS selectively thinned a portion of this tract in 2003.
8. The Earl Bonner tract was acquired by PCS on November 15, 1982. I have interviewed
Mr. Earl Bonner who recalls that his aunt selectively thinned pine timber larger than 12
inches, diameter-breast-height in 1952. In 1980, Mr. Bonner selectively thinned the pines
again, yielding $29,420 proceeds to send his son to college. PCS selectively thinned the
subject area in 2003.
9. The Vance Bonner tract was acquired by PCS on July 22, 1969. A Forest Land
Appraisal by Robert L. Smith, Forester, dated June 14, 1965 reveals that all commercial
timber was cut over by the owner.
10. The M. W. Ingram tract was acquired by PCS on March 20, 1968. Files that I
maintain reveal that Mr. Ingram retained the right for one year to remove all remaining
wood.
11. The Matilda Tuten tract was acquired by PCS on October 4, 1963. A Forest Land
Appraisal by Robert L. Smith, Forester, dated June 7, 1965 reveals that all commercial
timber was recently cut over.
12. The Icelenor Simpson tract was acquired by PCS on November 12, 2004. PCS clear
cut this tract in 2007.
Page 4
Affidavit - Curtis H. Brown
July 7, 2008
I contracted the harvest of timber from portions of the Bonnerton Significant Natural
Heritage Area in years 2002 - 2007. These silvicultural activities involved both clear-
cutting and selective thinning operations. The specific areas harvested and the species
count from that harvesting are as follows:
D. D. Bonner and T. W. Bonner (Tracts 3 & 4 - Exhibit A)
Portions of these tracts were selectively thinned by PCS under a contract dated October
31, 2002 with Superior Land & Timber Corporation. Stumpage reports from the entire
contract acreage reveal totals by timber type of:
Pine - Tree Length Logs 1,071.22 Tons
Pine Pulpwood 417.14 Tons
Pine Logs (10+ inches) 156.33 Tons
Pine Chip-N-Saw 204.39 Tons
Hardwood Pulpwood 1,021.01 Tons
Hardwood Plylogs 182.53 Tons
Poplar Logs 8.38 mbf
D. D. Bonner and Earl Bonner (Tracts 7 & 8 -Exhibit A)
Portions of these tracts were selectively thinned by PCS under a contract dated January
29, 2003 with Superior Land & Timber Corporation. Stumpage reports from the entire
contract acreage reveal totals by timber type of.
Pine - Tree Length Logs 539.04 Tons
Pine Pulpwood 259.28 Tons
Pine Logs (10+ inches) 26.67 Tons
Pine Chip-N-Saw 252.80 Tons
Hardwood Pulpwood 696.25 Tons
Hardwood Plylogs 77.84 Tons
Poplar & Maple Logs 1.46 mbf
Gum Logs 0.08 mbf
#2 Hardwood Logs 1.58 mbf
Page 5
Affidavit - Curtis H. Brown
July 7, 2008
T. W. Bonner and Icelenor Simpson (Tracts 4 & 12 - Exhibit A)
Portions of these tracts were clear cut by PCS under a contract dated December 21, 2006
with Superior Land & Timber Corporation. Stumpage reports from the entire contract
acreage reveal totals by timber type of.
Pine - Tree Length Logs 894.37 Tons
Pine Pulpwood 625.51 Tons
Pine Logs (10+ inches) 408.64 Tons
Pine Sawlogs (#1 & #2) 31.41 mbf
Pine Sawlogs (0) 8.29 mbf
Pine Chip-N-Saw 258.27 Tons
Red Oak Logs 4.24 mbf
Ash Logs 0.14 mbf
White Oak Logs 1.18 mbf
Hardwood Plylogs 489.20 Tons
Poplar Logs 18.62 mbf
Maple Logs 0.45 mbf
#2 Hardwood Logs 7.75 mbf
Harwood Pulpwood 2,497.97 Tons
We have requested a professional cruise of the subject parcels from Environmental
Services, Inc., Washington, North Carolina. A preliminary report by Seth A. Ward,
Registered Forester employed by ESI, states that due to the selective removal of the pine
timber from the site, the survey area has become a typical late successional southern
forest. Mr. Ward further states that evidence still exists that selective logging or thinning
has been conducted throughout the site, including logging equipment ruts and hand-felled
heartwood pine stumps.
As can be seen from the above facts, the current condition of these tracts is largely the
result of prior timber harvesting practices that continuously removed the more valuable
pine species.

Curtis H. Brown
Land Supervisor
PCS Phosphate Company, Inc.
EXHIBIT A
Non-Riverine Wet Hardwood Forest ?
2006 Aerial Photogragh
P??ttirhC??rP aur?ona 0 500 1,000 2,000 3,000 4,000 CHB 1JBP
Feet 6-19-2008