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Home My WebLink About20080868 Ver 2_Public Comments_20081117BaOOKs, PZEZ3CE, MCLENDON, HUMPH=--y & LEONAFzD, L.L.P. JR P NDON MCMILLAN BRIAN J ATTORNEYS AND COUNSELLORS AT LAW HENRY E. FRYE . . MCLE L. . EDGAR B. FISHER, JR. . DAVID KUSHNER OF COUNSEL W. ERWIN FULLER. JR. DEREK J. ALLEN FOUN-T)FD 1897 JAMES T. WILLIAMS, JR. CLINTON R. PINYAN PATRICIA W. GOODSON WADE H. HARGROVE COE W. RAMSEY POST OFFICE BOX 26000 OF COUNSEL M. DANIEL McGINN ROBERT W. SAUNDERS J. LEE LLOYD MICHAEL D. MEEKER ELIZABETH V. LAFOLLETTE NORTH GAROLINA 27420 GREENSBORO SPECIAL COUNSEL WILLIAM G. MCNAIRY GINGER S. SHIELDS , EDWARD C. WINSLOW 111 JENNIFER T. HARROD HOWARD L. WILLIAMS CHARLES E. COBLE TELEPHONE: (336) 373-8850 AUBREY L. BROOKS (1672-1956) GEORGE W. HOUSE CHARLES F. MARSHALL III -1965) N ESS (19 W. H. WILLIAM P.H. CARY PATRICK J. JOHNSON FACSINE LE: (336) 378-1001 90 cLEND -19661 890 L. P. ON D REID L. PHILLIPS STEPHEN G. HARTZELL TH M. BRIM ( 0 1898-19 KENNETH ROBERT A. SINGER ANDREW J. HAILE ") 29 -19 C.T. LEONARD, JR . (19 8 JOHN H. SMALL J. BENJAMIN DAVIS WWW.BROOE.SPIERGE.COM 968) 91 - 1 C. PIERCE (18) CLAUDE RANDALL A. UNDERWOOD JULIA C. AMBROSE TH ORNT H. BROOKS (1912-1988) S. LEIGH RODENBOUGH IV OARRELL A. FRUTH G. NEIL D S G. NEIL (1911-1997) MARK J. PRAK IAIN MACSWEEN HUBERTH HUMPHUMPH REY (1928-2003) JILL R. WILSON JESSICA M. MARLIES MARC D. BISHOP JIM W. PHILLIPS, JR. SARA R. VIZITHUM JOHNS. BUFORD November 13, 2008 OFFICE ADDRESS: MACK SPERLING NICOLE A. CRAWFORD 2000 RENAISSANCE PLAZA JEFFREY E. OLEYNIK ALEXANDER ELKAN NORTH ELM STREET 230 MARK DAVIDSON KATHERINE J. CLAYTON GREENSBORO, N.C. 27401 JOHN W. ORMAND III KATHLEEN A. GLEASON Vi Fed r l E ess ROBERT J. KING III SUSAN M- YOUNG a e a xpr V. RANDALL TINSLEY BENJAMIN R. NORMAN OFFICE ALSO IN S. KYLE WOOSLEY ELIZABETH E. SPAINHOUR RALEIGH, NORTH CAROLINA FORREST W. CAMPBELL, JR. JENNIFER C. NOBLE MARCUS W. TRATHEN DAVID 1- NEAL JEAN C. BROOKS SARAH A.L. PHILLIPS WRITER'S DIRECT DIAL JAMES C. ADAMS II PHILLIP J. LONG ALLISON M. GRIMM ANDREW T. TRIPP ELIZABETH S. BREWINGTON KATHERINE A. SOLES H. ARTHUR BOLICK II JOHN A- DUBERSTEIN J. c DWIN TURUNGTON JOSEPH A. PONZI 336-271-3114 JOHN M. CROSS, JR. JENNIFER K. VAN ZANT ADAM P.M. TARLETON D.J. O'BRIEN, III ghouse@brookspierce.com KEARNS DAVIS ERIC M. DAVID DAVID W. SAR CLINT S. MORSE Mr. Paul Rawls, Section Chief ®` 13 ?1 Surface Water Protection Section N 0 V 17 2008 Division of Water Quality Department of Environment and Natural Resources AMERQUALIV 512 North Salisbury WETLANDS AND STORMWATER BRAMCM Raleigh, NC 27604 Re: Proposed PCS Phosphate Mine Expansion - 401 Water Quality Certification Dear Mr. Rawls: On October 20 and 27, 2008, we, as counsel for PCS Phosphate Company, Inc. ("PCS"), wrote to you addressing several issues related to the Bonnerton tract hardwood flats and PCS's pending application for 401 certification. In that correspondence, among other things, we set forth reasons why it would be improper for DENR to require that PCS avoid certain Bonnerton tract areas as a condition of 401 Certification. On November 7, 2008, Southern Environmental Law Center ("SELC") counsel wrote to you regarding this matter, erroneously asserting that because of the "designation" by North Carolina Natural Heritage Program ("NHP") staff of certain wet hardwood flats on the Bonnerton tract as a "Significant Natural Heritage Area" ("SNHA"), DENR "must" condition 401 certification on PCS's complete avoidance of these areas. SELC's arguments are incorrect and do not rebut the legal or factual analysis set forth in our previous correspondence. If DENR were to condition 401 certification on the avoidance of these areas, DENR would be acting arbitrarily and capriciously and contrary to fact and law. It would also deprive PCS of any economically beneficial or productive use of this property as well as unreasonably disrupt and interfere with the economic and productive use of PCS's other property. Mr. Paul Rawls, Section Chief November 13, 2008 Page 2 At the core of SELC's argument (and DENR's assertion in its August 7, 2008 letter) is the assumption that the "listing"' of the Bonnerton tract as SNHA carries regulatory significance in the 401 process. Specifically, that argument assumes that SNHA listing alone satisfies the regulatory requirement for 401 purposes that, prior to the 401 application, the subject property has been "classified or designated" as "wetlands of exceptional state or national ecological significance." 15A NCAC 2H.0506(e). That rule, however, does not clarify what is a sufficient "classification or designation," who is authorized to issue such a "classification or designation," and what the criteria for such a "classification or designation" are. The only thing that is clear is that "classification or designation" status carries significant regulatory consequences, as set forth in § .0506(e). However, as pointed out in PCS's earlier letter (Oct. 20, 2008, p. 3), DENR itself says that "listing" is not a "legal status" and "does not confer protection to a site, nor does it give sites regulatory status or indicate that they have regulatory status with any agency. "2 One agency - DENR - cannot simultaneously assert that its own action (SNHA listing) has both no regulatory significance and diapositive significance under § .0506(e). SELC has offered no response on this point because there is none. Even if DENR were to reverse itself and propose to give SNHA listing 401 significance as an authorized "classification or designation" of wetlands, that would be contrary to the statutory authority underlying the NHP program. At the outset, it must be remembered that interpretation of statutes (and their implementing regulations) which infringe upon property rights must be strictly construed to encompass no more than expressly provided. See, e.g., Turlington v. McLeod, 323 N.C. 591, 594, 374 S.E.2d 394, 397 (1988). As pointed out in PCS's earlier letters, the NHP program is not a Clean Water Act implementation statute; rather, its purpose is to promote volun conservation efforts through a variety of programs. To utilize this statute to compel compliance with other regulatory schemes without the landowner's consent and to deprive the landowner of the use for which the property was purchased clearly runs afoul of the basic purpose and scheme of the NHP. Finally, our earlier letters point out that the listing process for SNHA has not been established by agency rule, does not allow for public and private landowner input, does not provide due process of law, and, if used in the manner in which SELC advocates, is not in furtherance of the statutory authority for the program. See PCS Oct. 20, 2008 letter. DENR's use of this listing as a basis for denial or conditioning 401 certification on avoidance of these areas would be arbitrary and capricious and contrary to the statutes and rules implementing the NHP. See, e.g., Turlington v. McLeod, supra. As stated above and in our previous correspondence, the Bonnerton tract hardwood flats are simply not wetlands of exceptional state or national ecological significance, their "listing" by NHP as a SNHA, even if proper (which we dispute), has no 401 regulatory significance, and DENR cannot condition 401 certification on avoidance of these areas. ' In the SELC letter, the author scrupulously avoids referring to the SNHA as a "listing" and instead repeatedly refers to it as a "designation," despite the fact that "designation" is not a term used by NHP. This difference is significant for the reasons discussed. 2 N.C.Natural Heritage Program Biennial Protection Plan, 2005. Mr. Paul Rawls, Section Chief November 13, 2008 Page 3 Z Sincerel George W. House GWH/mfm Enclosures cc: Sec. William G. Ross, Jr. DENR John Dorney, DENR Mary Penny Thompson, Esq., DENR Coleen Sullins, DENR Ross Smith, PCS Phosphate, Company, Inc. Brooke Lamson, Esq. USACE Tom Walker, USACE Derb Carter, Esq., SELC