20080868 Ver 2_SELC Comments on Bonnerton_20081110

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
November 07, 2008 mv(2 D
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Mr. Paul Rawls
Section Chief N??, 0 2008
Division of Water Quality
ORM\aATER WMCN
Department of Environment and Natural Resources ?pµp9 S?VAT
1601 Mail Service Center, 14th floor
Raleigh, NC 27699
Re: Proposed PCS Phosphate Mine Expansion - 401 Certification
Dear Mr. Rawls,
The Southern Environmental Law Center submits this letter on behalf of the
Pamlico-Tar River Foundation and in support of the Division of Water Quality's
("DWQ") requirement that PCS Phosphate ("PCS") avoid nationally significant
nonriverine wet hardwood forests threatened by the company's proposed mine expansion.
On October 20, 2008, PCS submitted a letter to you through its counsel arguing that these
forests were inappropriately designated significant natural heritage areas and could not
affect DWQ's analysis of PCS's 401 Certification request. PCS supplemented that letter
with a second letter dated October 27, arguing that the nonriverine wet hardwoods
recognized by the N.C. Natural Heritage Program as nationally significant do not satisfy
the federal silviculture guidance for that community type. For the reasons stated below,
those arguments should not affect DWQ's proper interpretation of its regulation that
requires PCS to avoid the Bonnerton nonriverine wet hardwood forests. As indicated by
their designation as nationally significant natural heritage areas, these forests are
"wetlands of exceptional state [and] national ecological significance"1 and therefore
DWQ cannot issue PCS's requested 401 Certification unless the agency determines that
existing uses are not degraded or removed. PCS Phosphate's proposed mine expansion
would degrade and remove this significant natural heritage area. Thus, DWQ must deny
the requested 401 Certification unless these wetlands are avoided.
1. State Regulations Require Avoidance of the Bonnerton Hardwoods.
A. The Bonnerton hardwoods are "wetlands of exceptional state or national
ecological significance. "
The North Carolina Natural Heritage Program ("NCNHP") has designated the
nonriverine wet hardwood forests on the Bonnerton tract of PCS's proposed mine
' 15A NCAC 02H.0506(e).
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expansion (`Bonnerton hardwoods") a nationally significant natural heritage area because
they are one of the best examples of a rapidly disappearing natural community. The
Division of Water Quality must consider that designation in its analysis of PCS's
requested 401 Certification; pursuant to the regulations guiding that evaluation, DWQ
must deny the 401 Certification unless the nationally significant heritage area is avoided.
, PCS's contention that the designation of these nonriverine wet hardwood forests
as nationally significant cannot be considered by DWQ and serves no regulatory purpose
fails to give meaning to state regulations. PCS bases its analysis on a reading of 15A
NCAC 02H .0506(e) that improperly restricts the regulation's application. Rather than
abiding by the regulatory language, PCS's interpretation requires that wetlands meet one
of three criteria to be considered "wetlands of exceptional state or national ecological
significance. "2 According to that interpretation, a wetland must be classified as a unique
wetland ("UWL wetland"), essential habitat for a threatened or endangered species, or
listed on the NCNHP Registry of Natural Heritage Areas to fall under the protections
provided by 15A NCAC 02H .0506(e).3
But the plain language of the regulation itself does not require "wetlands of
exceptional state or national ecological significance" to meet those criteria. To be sure, a
wetland that is classified as a UWL wetland or essential habitat for a threatened or
endangered species qualifies as one of these "exceptional" wetlands by the terms of the
regulation. But those are only examples of "exceptional" wetlands. That classification,
along with the regulatory protection it entails, is "not limited to"4 either those categories
or listing on the NCNHP Registry of Natural Heritage Areas as PCS suggests. Rather,
the regulation is open ended regarding other wetlands that may fall under it, allowing
unspecified mechanisms to show that specific wetlands merit the protection provided by
the regulation.
Designation as a nationally significant natural heritage area by the NCNHP is one
type of mechanism that may trigger this protection. The NCNHP has a statutory duty to
maintain a "classification of natural heritage resources, an inventory of their locations,
and a data bank for that information.i5 Although one purpose of that information is to
designate "natural areas" or "nature preserves,"6 that is not the only purpose.
"Information from the natural heritage data bank may be made available to public
agencies and private persons for environmental assessment and land management
purposes." 7 The designation of significant natural heritage areas ("SNHA") is precisely
the type of NCNHP- information that should be used by "public agencies" in
"environmental assessments."
2 15A NCAC 02H.0506(e).
3 Letter from George House to Paul Rawls of October 20, 2008 at 5.
4 15A NCAC 02H.0506(e).
5 N.C. Gen. Stat. § 113A-164.4(3).
6 N.C. Gen. Stat. § 113A-164.4.
Id.
2
The designation of the Bonnerton hardwoods as a nationally significant natural
heritage area qualifies them as "wetlands of state or national ecological significance."
Their significance is a result of the rarity of nonriverine wet hardwood forests as well as
the size and quality of this stretch of forest. "Nonriverine wet hardwood forests are
among the most threatened of North Carolina's natural communities" and "re resent a
small minority amid the more common bottomland hardwoods along rivers." These
forests are "a community type in serious decline."9 Compared to their original extent, the
loss of nonriverine wet hardwood forests "probably exceeds that of any other wetland
community type." 10 The threats to this community type mean that "without substantial
effort at protecting remaining examples, the expected trend for this endangered
community is continued rapid decline."II
But rarity alone does not explain the "exceptional" significance of the Bonnerton
hardwoods that caused the NCNHP to declare them a nationally significant natural
heritage area; the size and quality of the wetlands set them apart. Large tracts of
nonriverine wet hardwood forests are rare. Of the 25 known examples of this community
type in North Carolina, only seven are greater than 100 acres. 12 Covering 198 acres, the
Bonnerton site is the fourth largest known site. In addition to its size, the Bonnerton site
is high in quality, with large trees that are increasingly uncommon. The N.C. Natural
Heritage Program describes the site as "very good" quality.
It is this combination of factors that make the Bonnerton hardwoods a nationally
significant natural heritage area and "exceptional wetlands of state [and] national
ecological significance." Thus, the Bonnerton hardwoods fall under the purview of 15A
NCAC 02H.0506(e) and DWQ has the authority to condition PCS's requested 401
Certification on avoidance of these wetlands. Because the status of the Bonnerton
hardwoods trigger this regulation, DWQ cannot authorize a 401 Certification for the mine
expansion unless PCS demonstrates that existing uses will not be removed or degraded,
that wetland impacts are necessary to serve a demonstrated public need, and that
mitigation will replace, existing uses. As discussed below, PCS has not and cannot meet
those requirements.
B. PCS cannot rely on mitigation to replace the Bonnerton hardwoods
because it has not met the requirements in 15A NCAC 02H. 0506(e).
Mitigation cannot cure the defect in PCS's 401 Certification request; the
Bonnerton hardwoods must be avoided. Before mitigation is considered under 15A
NCAC 02H .0506(e), DWQ must find that "significant existing uses are not removed or
degraded by a discharge to wetlands of exceptional state or national ecological
significance." As discussed above, the Bonnerton hardwoods are a nationally significant
a Michael P. Schafale, Nonriverine Wet Hardwood Forests in North Carolina: Status and Trends, January
2008, available at http://www.ncnhp.org/Images/Other%2OPublications/nrwhf2008rpt.pdf.
9 Id. at 6.
io Id.
" Id. at 7.
12 Id.
natural heritage area due to their ecological significance and therefore trigger the
protections in 15A NCAC 02H.0506(e). PCS's proposed activity, strip mining, will
remove and degrade significant existing wetland uses.
PCS has not demonstrated that those impacts to the Bonnerton hardwoods are
"necessary to meet a demonstrated public need." PCS has not, and cannot, show that the
proposed impacts to this 200-acre stretch of "exceptional" wetlands are essential to fulfill
a public need. Thus, PCS has not satisfied 15A NCAC 02H.0506(e)(1).
Finally, PCS has not satisfied the mitigation requirements in 15A NCAC 02H
.0506(h)(10). When impacts to "exceptional" wetlands are permitted under 15A NCAC
02H .0506(e), the applicant must show that the proposed mitigation is (1) "of the-same
wetland type and within the same watershed" or (2) that doing so is not "practical * ,13
PCS has not made either of these showings. In light of the impacts to existing uses,
failure to demonstrate a public need, and mitigation shortcomings, PCS's requested 401
Certification must be conditioned on the avoidance of the Bonnerton hardwoods.
II. The Bonnerton Hardwoods are Natural Areas.
The Division of Water Quality's consideration of the national significance of the
Bonnerton hardwoods should not be.diminished by past logging of these sites. PCS's
contention that the Bonnerton hardwoods are not a natural area because they were logged
three to four decades ago is unpersuasive. Highlighting that these areas were once logged
fails to differentiate these wetlands from the vast majority of Southern forests and
wetlands, which have been altered by humans at some time in the past. "More than 98
percent of presettlement old growth forests in the South have been altered or lost."14
Wetlands have fared only slightly better, "[a]bout 78 percent of wetlands in the Southeast
has been altered in some degree." 15 By PCS's definition, none of these areas could be
considered natural regardless of any natural succession following distant human
alteration. Similarly, PCS's definition of natural areas would eliminate those
quintessentially natural areas in state parks and national forests that are managed through
logging, burning, or some other alteration of the environment. The Bonnerton hardwoods
represent a rare, natural community type and, though influenced by selective logging, are
natural areas by any common sense definition of the phrase.
The definition of "natural area" in N.C. Gen. Stat. § 113A-64.3(3) also supports
classification of the Bonnerton hardwoods as a natural area. Under that definition, an
area of land or water. can be classified as a "natural area" if it meets one of three listed
criteria; the Bonnerton hardwoods meet at least two of the three listed criteria.
Nonriverine wet hardwood forests were historically found in "northeastern North
Carolina," more specifically "east of New Bern, Washington, and Plymouth. ,16 The
Bonnerton hardwoods, nonriverine wet hardwood forests just east of Washington, have
13 15A NCAC 02H .0506(h)(10)
14 UNITED STATES FOREST SERVICE, SOUTHERN FOREST RESOURCE ASSESSMENT 56 (2002).
15 Id.
16 Schafale at 3.
4
"reestablished" the "natural character" of the region and are therefore "natural areas"
according to the first criterion in the statutory definition. 17 Because nonriverine wet
hardwood forests "are among the most threatened of North Carolina's natural
communities," 18 and the Bonnerton hardwoods are one of the five best examples of this
disappearing community type in the nation, these forests have significant "biotic ...
features of scientific or educational value." 19 Thus, they satisfy the third criterion in the
definition of "natural areas" and are appropriately considered a significant natural
heritage area.
III. PCS's Reliance on the EPA/Corps Silviculture Guidance is Misplaced.
Federal guidance regarding nonriverine wet hardwood forests is irrelevant to the
Division of Water Quality's application of state regulations; PCS's strained reliance on
that guidance cannot undermine NCNHP's designation of the Bonnerton hardwoods. We
are very familiar with the guidance attached to PCS's October 27 letter; it is the product
of a settlement we negotiated to end litigation that we brought on behalf of several
environmental groups challenging Weyerhauser's conversion of the Great Dismal Swamp
into pine plantations in the early 1990s.20 The guidance is irrelevant here for two reasons
that are clear considering its origins. 21 First, it relates to section 404 permits issued by
the Army Corps of Engineers and not 401 certifications issued by states. Second, it
focuses on the silvicultural exemption in section 404(f). Not only is that exemption not
relevant here due to PCS's requested action, the Division of Water Quality does not grant
that exemption.
The 401 certification is a state authorization that should be guided by state
agencies. The NCNHP is uniquely qualified to evaluate North Carolina's natural
environment, particularly when, as here, the ecological value of a wetland community is
inextricably tied to the rarity of that community type. Its evaluation of the Bonnerton
hardwoods as a one of the five best examples of nonriverine wet hardwood forests
remaining in the nation cannot be discarded, and is not in error, simply because it
interferes with PCS's proposed project. Federal guidance on federal permits is not
relevant to, and cannot undermine, the NCNHP's designation of the Bonnerton
hardwoods as a nationally significant natural heritage area.
Moreover, the guidance is irrelevant here because of its expressly stated purpose,
to "clarify the applicability of forested wetland best management practices to mechanical
silvicultural site preparation." PCS is not a silvicultural operation nor is its requested 401
Certification related to silviculture. PCS does not seek to establish pine plantations, the
focal point of the guidance as well as the litigation that prompted its creation. Because
the guidance is irrelevant, DWQ must reject PCS's attempt to shoehorn federal guidance
17 N.C. Gen. Stat. § 113A-162.3(3).
" Schafale at 1.
19 N. C. Gen. Stat. § 113A-162.3(3).
20 See generally Environmental Defense Fund v. Tidwell, 837 F. Supp. 1344 (E.D.N.C. 1992).
21 We dispute PCS's application of the guidance to its proposed impacts, but that discussion should be had
related to a request for a silvicultural exemption from a federal 404 permit - the intended application of the
guidance.
5.
on forestry exemptions from 404 permits into its analysis of PCS's application for a state
401 certification for a mining operation.
In conclusion, the NCNHP's designation of the Bonnerton hardwoods as a
nationally significant naturally heritage area is not only relevant to PCS's requested 401
Certification, but critical; the designation is fatal to it unless PCS can satisfy 15A NCAC
02H.0506(e). Based on the proposed mine expansion, they cannot. Thus, DWQ must
condition any 401 Certification for the project on the avoidance of the Bonnerton
hardwoods.
Please contact us if you have any questions regarding the content of this letter or
the issues addressed in it.
Sincerely,
?p,,?f, Jl Carte ?GRG
Derb S. Carter, Jr.
Senior Attorney/Carolinas Office Director
Southern Environmental Law Center
27fr4ey R. Gisler
Associate Attorney
Southern Environmental Law Center
cc:
Sec. William G. Ross, Jr., DENR
John Dorney, DENR
Mary Penny Thompson, Esq., DENR
Colleen Sullins, DENR
Heather Jacobs Deck, Pamlico-Tar River Foundation
Tom Walker, USACE
Brooke Lamson, Esq., USACE
George House, Esq., Brooks Pierce
6