20080868 Ver 2_WRC Comments_20080707

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® North Carolina Wildlife Resources Commission
MEMORANDUM
TO: Melba McGee, Environmental Coordinator
Office of Legislative and Intergovernmental Affairs
North Carolina Department of Environment and Natural Resources
and
Tom Walker
U.S. Army Corps of Engineers
Wilmington District
FROM: Shannon L. Deaton, Manager <>" `'Y1
Habitat Conservation Program
DATE: July 1, 2008
SUBJECT: Comments on Final Environmental Impact Statement for the PCS Mine Continuation,
Aurora, North Carolina.
OLIA No. 08-0356; Corps Action ID No. 200110096
Biologists with the North Carolina Wildlife Resources Commission (NCWRC) reviewed the final
environmental impact statement (FEIS) with regard to impacts of the project on fish and wildlife resources.
Our comments are provided in accordance with the North Carolina Environmental Policy Act (G.S. 113A-1
et seq., as amended; 1 NCAC-25), provisions of the Fish and Wildlife Coordination Act (48 Stat. 401, as
amended; 16 U.S.C. 661 et seq.), the Clean Water Act of 1977 (as amended) and the Coastal Area
Management Act (G.S. 113A-100 through 113A-128), as amended.
The applicant, PCS Phosphate, Inc., Aurora (PCS) submitted a DEIS with the US Army Corps of Engineers
(USACE) on October 20, 2006. This document was reviewed by the NCWRC and formal comments were
issued on February 1, 2007. On December 31, 2007 the NCWRC submitted formal comments to a
supplement of the DEIS that presented two new alternatives, Alternative L and Alternative M. Descriptions
of these alternatives and differences in impact area have been thoroughly described in the DEIS and SDEIS.
The USACE posted the FEIS for review on May 23, 2008. The applicant's overall purpose and need is to
continue mining its phosphate reserve in an economically viable fashion. More specifically, the applicant's
purpose and need is to implement a long-term systematic and cost-effective mine advance within the project
area for the ongoing PCS mine operation at Aurora, North Carolina. Although the purpose and need of the
applicant has remained the same, PCS is now pursuing Alternative L rather than the Applicant Preferred
(AP) and Expanded Applicant Preferred (EAP) boundaries.
Mailing Address: Division of Inland Fisheries - 1721 Mail Service Center - Raleigh, NC 27699-1721
Telephone: [phone] - Fax: [phone]
SDEIS PCS Phosphate Page 2 July 1, 3008
OLIA No. 08-0356
USACE Action No. 200110096
Alternative L includes areas within the NCPC, Bonnerton, and South of Highway 33 tracts. NCPC is a
3,608 acre area within the Hickory Point peninsula adjacent the Pamlico River and South Creek. Seventy-
one percent of this tract is designated wetlands and contains six tidal creeks, including three inland primary
nursery areas (PNAs). Bonnerton is a 2,806 acre area adjacent the Pamlico River that is 76% wetlands and
contains the headwater drainage to one inland PNA as well as a XXX- acre nationally significant wetland
heritage area. South of Highway 33 is an 8,686 acre tract, 20% of which are wetlands. The entire project
area is classified nutrient sensitive and is therefore subject to the NC Division of Water Quality's
Tar/Pamlico Basin Buffer Rules. Alternative L is briefly described below:
Alternative L
This boundary utilizes the SCR boundary in the NCPC Tract, avoids the Porter Creek
headwaters north of Grey Road, utilizes the AP boundary south of the Grey Road in the
Bonnerton Tract, and avoids the South Creek Canal, all wetlands south of the South Creek
Canal, and all areas regulated by the NC Division of Coastal Management (NCDCM) as Areas
of Environmental Concern (AEC). Total wetland impacts per information from the "Biotic
Communities Impacts" figures include 4,135 acres of wetlands and 59 acres of 47% wetlands.
It is stated this alternative would provide 37 years of mining with at least 15 years of mining
north of Highway 33.
NCWRC has reviewed the information presented within the FEIS, including responses to agency concerns.
The additional information provided has not changed our position on proposed project and its impacts to
aquatic and wildlife resources. Our February 1, 2007 and December 31, 2007 comments stated and
reiterated, "The NCWRC would like to conclude that we are concerned with the impacts the mine expansion
will have on fish and wildlife resources throughout the project area. We are especially concerned with the
impacts to the valuable habitat areas within the NCPC tract including wetlands, streams, creeks, and
inland PNAs that support the Pamlico estuarine system and provide contiguous habitat areas for terrestrial
species. Therefore, the Commission would look more favorably on mine expansion that does not include the
NCPC tract. " The NCWRC believes further mining within the NCPC tract would cause significant
degradation to fish and wildlife resources within the project site and adjacent Pamlico Sound estuary.
Significant measures should be employed to avoid and minimize direct and indirect impacts to important
and irreplaceable habitat areas as is directed by NEPA. Alternative L will significantly impact these
resources.
Three inland PNAs exist within the NCPC tract and one within the Bonnerton tract. All would be further
impacted by any mine advance, especially those within NCPC. Jack's, Jacob's, and Tooley's creeks within
NCPC and Porter's Creek within Bonnerton are all designated inland PNAs by the NC Wildlife Resources
Commission. PNAs are defined as those areas inhabited by the embryonic, larval or juvenile life stages of
marine or estuarine fish or crustacean species due to favorable physical, chemical or biological factors. The
purpose of inland PNAs are to establish and protect those fragile inland waters which support embryonic,
larval or juvenile populations of marine or estuarine fish or crustacean species. The critical input to and
function of PNAs are not contained just with public trust waters, but includes the headwater drainages.
Biologists with NCWRC conducted a site visit on November 1, 2006 to determine the species present
within Jack's, Jacob's, and South Creeks. Although collected fish included red drum and American eel, data
collected showed a high contribution of inland species relative to estuarine species. In terms of numerical
catch and biomass, the data we collected does not support that fish production originates from downstream
estuarine environments. The ENTRIX report provided by PCS in January 2008 did not adequately address
freshwater species nor did it establish a linkage between biota and previous mining impacts in the area,
including watershed reduction and ground water draw-down from mining operations. Therefore, the ability
to predict further watershed reduction impacts based on the report alone was negated. The report used data
SDEIS PCS Phosphate Page 3 July 1, 3008
OLIA No. 08-0356
USACE Action No. 200110096
collected after Jack's Creek watershed had already been diminished by almost 20% as "pre-data". Small
reductions in watershed area, less than 10%, may have large biotic impacts and therefore is problematic
when comparing watershed reduction and biota in the South Creek system if "pre-data" includes
significantly impacted areas.
Removal of headwater streams and drainage areas would directly alter flow from ground water and
stormwater runoff, therefore decreasing fresh water input, increasing salinity through estuarine tidal
influences, impact filtration of nutrients and other contaminants from decreased wetlands, increase
sedimentation, and reduce the input of organic materials. The disruption of these functions in the drainage
basin will significantly impact the ability of these systems to function as an inland PNA. The value of a
PNA cannot be measured in fisheries catch per unit effort alone.
Special conditions for the Department of the Army Permit No. 198899449 and DWQ issued Water Quality
Certification #3092 included three conditions stating PCS must perform appropriate studies to assess
whether there are water quality impacts or hydrologic impacts of the tributaries of South Creek and the
Pamlico River due to the removal of drainage area from these tributaries. PCS requested CZR Incorporated
(CZR) and Dr. Wayne Skaggs to prepare a stream monitoring plan. This plan, "NCPC Tract Stream
Monitoring Program", has been implemented and reported to state and federal agencies for six years.
Included in this plan were the monitoring and data comparison of Huddles Cut, Tooley, and Jacks creeks.
As a result of the issued permit, the drainage basins for these streams were significantly altered. The
drainage area for Huddles Cut was reduced from 872 acres to 651 acres (25.3%); Jacks Creek was reduced
from 528 acres to 331 acres (37.3%), and Tooley Creek from 498 acres to 431 acres (13.5%). Review of
these data has shown elevated levels of cadmium (Cd) within Huddles Cut and Jacks Creek as compared to
background levels of Cd in the open areas of the Pamlico River estuary. Cd is a priority pollutant with no
known biological function and a host of known adverse effects, including mutagenicity, teratogenicity and
suspected carcinogenicity. The "NCPC Tract Stream Monitoring Program" reports state, "We may predict,
within the limits of established guidelines, that Cd concentrations in sediments from Jacks Creek may
occasionally cause adverse biological effects ". These results were found in only six years of study, with
37.3% of the total drainage area reduced. Therefore, it can be concluded that the predicted long term effects
would be greater when the drainage area is significantly reduced again. One explanation of the increased
levels of Cd within the sediment of Huddles Cut was that the sediment is rich in fine grained, clay material.
This result may be due to recent deposition or part of an overall patchy distribution of sediment in the area.
A reduction of wetlands adjacent to surface waters would once again greatly reduce the opportunity for
removal of these sediments prior to reaching the creeks and river.
The FEIS states drainage area impacts are considered temporary for those areas where mine configuration
allows drainage areas to be restored throughout the approximate 15-year land reclamation process.
However, due to the importance of these systems and lack of examples and references on reconstructing
functional drainage basins especially on reclaimed mines containing high levels of nutrients and
contaminants we feel the impacts will likely be much more far reaching and these systems may never
recover. The FEIS states the area impacted will be reclaimed, not restored. Therefore essential components
such as headwater drainages, riparian wetlands, and transitional areas that lead to coastal marshes that
support the highly productive Pamlico estuarine system will be directly impacted and permanently
removed, indirectly impacting the entire South Creek and Pamlico River systems.
Alternative L has less impact than AP / EAP, but still significantly impacts wetlands and watersheds with
the meandering path between creeks and watersheds. We do not concur that appropriate avoidance and
minimization has been conducted prior to consideration of mitigation. Reduction of impacts to these
valuable systems would allow mitigation to be considered appropriate and adequate. We understand the
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USACE Action No. 200 1 1 0096
applicant does not have to demonstrate "no impact", but we feel impacts within the current proposal will be
significant and could not be adequately offset even with compensatory mitigation.
The FEIS contains a section that provides information on several proposed mitigation sites located near the
South Creek area and within the Tar / Pamlico River Basin. The NCWRC appreciates the effort PCS has
put forth to show commitment in moving forward to mitigate impacts that cannot be avoided and
minimized. However, we believe impacts could be reduced significantly and are concerned with the ability
to mitigate for the loss of wetlands, streams, stream buffers, and the biological and chemical functions of
the systems within Alternative L. The mitigation strategy proposed in the FEIS does not appropriately
compensate for the proposed impacts to submerged aquatic vegetation (SAV), shallow water habitat,
essential fish habitat (EFH), riparian wetlands, coastal marsh, inland PNAs, and the role of drainage basin
areas to these important inland and estuarine systems immediately adjacent the Pamlico River system in the
NCPC tract. Direct removal of some of these resources may not occur with the proposed actions, but the
indirect, secondary, and cumulative impacts with the removal and degradation of the system leads to the
impacts and the potential functional removal of these resources. The FEIS states impacts to jurisdictional
areas under Alternative L within the NCPC and Bonnerton tracts would be mitigated at approximately a
1.8:1 ratio. This ratio is used to help calculate the cost models and therefore the expense of mitigation for
each alternative and was obtained by giving 1:1 to poor-fair valued systems, 2:1 to good systems, and 3:1 to
excellent systems. NCWRC has reviewed the provided information and does not agree that the proposed
1.8:1 ratio is adequate for the impacts the project will have on the ecosystem.
The potential mitigation sites at Bay City Farm, Hell Swamp, and Scott Creek may be good wetland
enhancement or restoration sites for the wetlands and streams they once were, but may not replace the
valuable wetland and aquatic habitats and functions lost within the NCPC and Bonnerton tracts. We still do
not believe the FEIS adequately addresses the differences in complexity and function between ecosystems
within the NCPC tract and the proposed mitigation areas. Replacement of lost functions is a critical
consideration as well as general availability of lands in the area appropriate for wetland, stream, and buffer
mitigation. Due to the inability of the applicant to find adequate area to mitigate and restore mined buffers,
PCS is proposing to present "flexible buffer mitigation" before the Environmental Management
Commission. We do not support this proposal especially for the proposed area of impact versus
conventional buffer mitigation. This discrepancy could be resolved by avoiding and minimizing impacts to
these areas.
The FEIS states continued mining of the NCPC tract would have temporary impacts that would be
mitigatable. However, due to the importance of these systems, NCWRC disagrees. The FEIS states the area
impacted will be reclaimed, not restored. Therefore, essential components such as headwater drainages,
riparian wetlands, and transitional areas that lead to coastal marshes that support the highly productive
Pamlico estuarine system will be directly impacted and permanently removed, indirectly impacting the
entire South Creek and Pamlico River systems. We continue to question how the functional loss of three
inland PNAs would be mitigated.
The NCWRC has reviewed the compensatory mitigation section contained within the FEIS. At this time,
we are not providing detailed comments about these proposals. These options are being pursued with the
understanding from the applicant that they may not be accepted as adequate mitigation for the proposed
mining plan. We will provide more detailed comments on the individual mitigation sites during the
401(b)(1) review process of the NC Division of Water Quality. Concerns and comments for overall
proposed mitigation as well as individual sites would include inability to mitigate the complexity and
function of areas in the South Creek estuary with proposed mitigation areas, inability to mitigate the
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OLIA No. 08-0356
USACE Action No. 200110096
functional loss of PNAs, restoration versus enhancement, insuring restored mitigation areas are not limited
in their function by downstream constraints, grading, planting, and site specific construction conditions.
Due to the afore mentioned concerns, we cannot concur that Alternative L is an appropriate mining option
on the NCPC tract because of significant degradation of fish and wildlife resources and the uncertainty in
providing adequate, functional compensatory mitigation. We have made this statement for alternatives AP,
EAP, SCR, SJA, and Alternative M on the NCPC tract as well. This concern also extends to the significant
wetland areas on Bonnerton.
The concerns we have with the impacts of mining important ecosystems adjacent the South Creek, Durham
Creek, and Pamlico River systems and the inability to adequately mitigate those impacts could be addressed
with more intense avoidance and minimization. Once avoidance and minimization has been satisfied, a
detailed mitigation plan for unavoidable impacts should be submitted detailing the ability to mitigate for the
loss of important wetland habitat areas as well as water quality functions. The mitigation plan should
include specific details for any areas impacted including potential SAV, shallow water habitat, EFH, inland
PNAs, perennial streams, intermittent streams, coastal marsh, riparian wetlands, and riparian buffers. All
impacts should be considered when developing such a plan, including direct, indirect, secondary, and
cumulative impacts.
We appreciate the opportunity to participate in the commenting process and review of the FEIS. We also
look forward to any additional information, response, and discussion of our comments during this process.
If you have further questions or comments, please contact Maria Dunn at [phone].
cc: Lekson, D. - US Army Corps of Engineers
Wicker, M. - US Fish and Wildlife Service
Fox, B. - US Environmental Protection Agency
Sechler, R. - National Marine Fisheries Service
Moye, D. - NC Division of Coastal Management
Rynas, S. - NC Division of Coastal Management
Peed, R. - NC Division of Land Resources
McKenna, S. - NC Division of Marine Fisheries
Domey, J. - NC Division of Water Quality
Barnes, K. - NC Division of Water Quality
Emmerling, D. - Pamlico-Tar River Foundation
McNaught, D. - Environmental Defense
Cooper, S. - CZR, Inc - Wilmington
Furness, J. - PCS Phosphate Co.