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State of ,,North Carolina
MICHAEL F. EASLEY Department of .justice
ATTORNEY GENERAL P. n. BOX 62n
RALEIGH
2 7(--)02-06'-) P
REPLY TO: Daniel C. Oakley
Environmental Division
(919)733-5725
(919) 733-0791; FAX
March 21, 1995
Mr. Richard B. Whisnant, General Counsel
North Carolina Department of Environment,
Health and Natural, Resources
Post Office Box 27687
Raleigh, North Carolina 27611-7687
RE:: Advisory Opinion: EMC "Wetlands" Rulemaking Authority;
N.C.G.S. 143-214.1 and 143-215:3(c)
Dear Mr. Whisnanl:
You have asked for advice on whether the Environmental Management Commission
("EMC") has authority to promulgate proposed rules related to the classification of wetlands and to
state water quality certifications in federal permitting actions under Section 401 of-the Clean Water
Act. While we researched your inquiry, Senator Beverly Perdue sought an opinion on closely related
issues, the EMC has gone to public notice with the rules packet; and Secretary Howes has
established a separate Wetlands Task Force to advise him in this area. During discussions in the
public comment period for the rules and in the Task Force, additional questions of statutory authority
have also been raised. We felt it prudent to listen to those concerns and to address as many of the
statutory authority questions as possible in this Advisory Opinion. Thus, 'it may be more
comprehensive than you had anticipated.
The Divi::,on of Environmental Management ("DEM") of the Department of Environment, .
Health and Natural Resources ("DEHI4R") has published an "Information Package' Wetland Rules
Hearings" that describes in detail the proposed rules and their intended purpose. Thus, a lengthy
recitation of the rules is unnecessary. However, for purposes of our response, we have summarized
the proposed rules and the DEM's.stated rationale in requesting their adoption.
An EgU01 opponunliy / Affirmative Action Employer O'
1-1
March 21, 1995
Page 2
THE PROPOSED RULES
The Environmental Management Commission ("EMC") has proposed amendments to its
water quality protection rules, at 15A NCAC 2B .0 100, 2B .0200 and 2H .0500. The stated intent of
the rules proposal is twofold: (1) to establish classifications and water quality standards for wetlands
as waters of the State;`and (2) to establish separately a review process of the DEM in considering
requested water quality, certifications under Section 401 of the federal Clean Water Act., Section 401
of the federal Clean Water Act requires the State to certify that any federally permitted activity that
impacts North Carolina waters, including wetlands, will not result in a violation of state water
quality standards. See 33 U.S.C. § 1341(a)(1).
L
The proposed North Carolina water quality standards for wetlands are set out in rule 15A
NCAC 2B .022b. These proposed standards "are designed to protect, preserve,. restore and enhance
the quality and use of wetlands and other waters of the state influenced by wetlands." (emphasis
supplied); 15A NCAC 2B .0220(a).
The proposed Section 401 review process, separately set out in rule 15A NCAC 2H .0506,
applies not only to wetlands, but .to all North Carolina surface waters. We understand that these
review procedures are not intended to be additional water quality standards applicable to certain
classes of state waters. Rather, they describe how the DEM will apply the state's water quality
standards, including the proposed standards for wetlands, in making required Section 401
certification decisions. Most of the questions concerning rulemaking authority focus on the
proposed procedure for verifying water quality standards in Section 401 certifications. '
E
1. Does the Environmental Management Commission have the requisite statutory
authority to adopt the wetland standards proposed in 15A NCAC 2B .0220, and
the Section 401 Certification review procedures proposed in. 15A NCAC 2H
.0506?
We believe some of these questions on rulemaking authority result from a misunderstanding
about the scope of the proposed rules. Specifically, some citizens seem to be under the impression
that the proposed 401 certification procedures set forth in 15A NCAC 2H .0506 also include
proposed water quality standards or additional criteria. To avoid further confusion;' the EMC can
clarify that rule 2H .0506 contains only procedures for 401 certifications. We will submit to the
EMC suggested changes to the text of the proposed rule to accomplish this.
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Mr. Richard B. Whisnant, .(general Counsel
March 21, 1995
Page 3
II. Do the proposed rules conflict with federal law by operating to place non-water
quality related restrictions on projects that require a Section 401 Certification
from the State?
III. Do the proposed rules establish a: separate, duplicative. permitting, program
without the requisite statutory authority?
IV. Will the proposed rules operate to halt any elimination of wetlands areas, in
light of -the antidegradation policy of the Environmental Management
Commission?
For the reasons which follow, we conclude that (1) the EMC possesses adequate statutory
authority for the proposed rules in Chapter 143, Articles 21 and 21A of the General Statutes; (2) the
EMC is not attempting to place non-water quality restrictions on activities needing federal permits .
within the State; (3) the proposed rules do not establish a,sepprate, duplicative, wetlands permitting
program; and (4) wetlands use protection under the. State's. antidegradation policy does riot preclude
reasonable quantities of fill in wetlands nor insignificant wetlands degradation.
DISCUSSION
I. Does the Envircnmental Management Commission Have the Requisite
Statutory Authority 'to Adopt the Wetland Standards Proposed in 15A
NCAC 2B .0220, and the Section 401 Certification Review Procedures
Proposed in 15A NCA.C 2H..0506?
As noted, the proposed wetlands rules fall into two general. categories.. The 'first sets out
proposed wetlands classifications and the standards applicable to each class of wetlands. The.second
contains permit review procedures intended to ensure,' through the Section 401 water quality
certification process, that state surface water quality standards are adequately considered and
enforced when federal permitting actions occur.
A. The Federal Clean Water. Act Imposes .the '.Responsibility for
Developing Water Quality Standards' on the States, Subject to
Approval by the Environmental Protection Agency.
The federal Clean Water Act, 33 USC §§ 1251 et seq., establishes a-water quality program
under which both federal and state governments have responsibilities. Section 303 delegates to the
states the initial obligation to establish the water quality standards which will be applicable to waters
within the state, subject to federal approval: "[a state] water quality standard shall consist of the
designated uses of the navigable waters involved and the water quality criteria for such waters based
upon such uses." 33 USC § 1313(c)(2)(A). "States establish standards under Section 303 by first
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March 21, 1995
Page 4
designating the uses of the waters they wish to assure; they then adopt water quality standards which
will allow the designated uses to be actual uses." Arnold Irrigation District v. DEO, 717 P. 2d 1274,
1277 (Or. App. 1986).2 The United States Supreme Court has recently spoken to the meaning
of Section 303 in the context of state water quality certifications under Section 401 of the Clean
Water Act. The Court stated:
The text [of Section 303(c)(2)(A)] makes it plain that water quality standards contain
two components. We think the language of § 303 is most naturally read to require that
a project be consistent with both components, namely the designated use and the water,
quality criteria. Accordingly, under the literal terms of the statute, a project that does
' not comply with a designated use of the waters does not comply with the applicable
water quality standards. (emphasis supplied)
PUB No. 1 at 1910. In explaining its rationale, the Court continued:
Water quality standards, however, apply to an'entire class of water, a class which
contains numerous individual water bodies..... While enforcement of criteria will in
general protect the uses of those diverse waters, a complementary requirement that
activities also comport with designated uses enables the States to ensure that each
activity--even if not foreseen by the criteria--will be consistent with the specific uses
and attributes of a particular body of water.... [C]riteria cannot reasonably be
expected to anticipate all the water quality issues arising from every activity which
can affect the.State's hundreds of individual water bodies.
M. at 1911. Under PUD No: 1, then, it is clear that in performing its water quality classification
functions, a state must establish both designated uses of its waters and water quality criteria
pertaining to those uses, and ensure that both are adequately protected. Under Section 303, these
uses and criteria will be submitted to EPA and, upon approval, will become enforceable under
federal law. See, 33 U.S.C. § 1313(c).
2 In order to achieve the goals of the Clean Water Act to protect and restore the quality of the
nation's waters, Section 303 also imposes an antidegradation:requirement upon states; i.e., it requires
that a state's water quality standards be sufficiently strong to protect existing uses of iXs waters and to
prevent their further degradation. See, 33 U.S.C. § 13 13 (d)(4)(B); see also PUD No. 1 of Jefferson
Co. v. Washington Dept. of Ecology, 114 S.Ct. 1900, 1911 (1994). As a result, the. regulations of the
U.S. Environmental Protection Agency ("EPA") implementing the Clean Water Act require.that the,
water quality `standards of each state include an " antidegradation policy" to achieve the mandate of
Section 303. See, 40 CFR § 131.12 (1992).
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Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 5
B. The Proposed Rules Are Being Promulgated Pursuant to State Law.
The state statutes respecting water quality protection are found in Chapter 143, Articles 21
and 21A of the General. Statutes, at N.C.G.S. §§ 143-211 et seq. Under Chapter 143 of the N.C.
General Statutes, the EMC has the clear duty to protect state waters, and broad rulemaking authority
to achieve that goal. See, N:C.G.S. §§ 143-211; 143-214.1; 143-215:3(a)(1); see also, Art. XN,
Sec. 5, N.C. Constitution. Pursuant to N.C.G.S. § 143:214.1, the EMC has. specific. statutory
authority to develop and adopt classifications of the waters of the State, as well as the statutory
authority to develop and adopt water quality standards applicable to each such classification..
11. C.G.S. § 143-214.1(a)(1). Moreover, the EMC has the statutory authority to classify all waters of
the State pursuant to N.C.G.S. § 14.3-214.1(a)(2), and under that provision, the EMC has discretion
to determine which state waters it deems sufficiently important to classify and regulate.
Previously, the Environmental Division of the Attorney General's Office has advised the
DEM that the definition of "waters" of the State; found in N.C.G.S. § 143-212(6), reasonably
includes wetlands. Moreover; freshwater wetlands have expressly been treated as waters of the State
by the EMC since at least October 1, 1989, when .EMC rule 15A NCAC 2B .0109 was adopted.
That rule states that in determining whether projects that affect state freshwater . wetlands
impermissibly degrade the wetlands by removing existing uses, the DEM "will be.guided by 40 CFR
Part 230, Subparts A. through-F" (more commonly known as'the'."Section 404(b)(1) Guidelines").
15A NCAC 2B .0109. Since wetlands are waters of the State, and since the EMC has the statutory
authority to adopt classifications and standards applicable to North Carolina waters, the EMC has the
statutory authority to adopt the classifications and standards for wetlands.'
The EMC has previously adopted water quality standards for all North Carolina surface
waters in 15A NCAC 2B .0200, and in this rulemaking proposes additional standards, specifically
pertaining to wetlands,-under that section. The wetland standards proposed in rule 15A NCAC 2B
.0220 will become part of the water quality standards of the State upon adoption, and will then be
submitted to the EPA for approval as'required under Section 303 of the federal Clean Water.Act.
The water quality standards uses and criteria--contained in those rules are exactly the type of
standards required by Section 303(c)(2)(A) of the Clean Water `Act; and thus are expressly
referenced as appropriate certification denial criteria in Section 401(a) of the Act.. As such, we
believe there is no valid legal basis for challenging the EMC`s authority to adopt the proposed rule or
to challenge the use of the standards contained in the 'proposed rile in making state Section 401
water quality certifications.
Proposed rule 15A NCAC 2H .0506 `sets out the procedures.that the DEM will employ in
reviewing federally permitted projects affecting state surface waters under Section 401 to ensure that
the activities would not violate state water quality standards. North Carolina law authorizes the
EMC to specify requirements and procedures for the Section 401 certification process. N.C.G.S. §
1-5
Mr. Richard B. Whisnant, General Counsel
March 21, 1995
Page 6
143-2153(a) gives the EMC the statutory authority to adopt rules implementing the Water and Air
Act, and N.C.G.S. § 143-215.3(c) provides the statutory authority for the EMC to administer any
federal-related matter in.water and air quality. Thus, the EMC has the statutory authority to adopt
procedural rules for Section 401 water quality certifications since: (1) the State is required to make
Section 401 water quality certifications, (2) the EMC has specific rule making authority in'water
quality matters, and .(3) the EMC is specifically authorized to act as the entity .to carry out federal
directives under the Clean Water Act. Thus, just as the authority to adopt a wetlands classification
and applicable water quality standards is found in state law, the authority, to promulgate the rules
implementing Section 401 water quality certification review procedures comes from state, rather
than federal, law.,
II. Do the Proposed Rules Conflict With Federal Law by Placing Non-Water.
Quality Related Restrictions on Projects That Require -a Section 401
Certification From the State?
Under Section 401{a)(1), a state reviewing a proposed,. federally permitted project that may
result in a discharge into state waters for compliance with its water quality standards must certify
"that any such. discharge will comply with the applicable provisions of Sections 30.1, 302, 303, 3062
and' 307 of [the Clean Water Act]33 U.S.C. § 1341(a)(1). If the EMC rules are adopted as
proposed, the substantive criteria upon which future Section 401 water quality certification decisions
would be made by the Director of the DEM are: • (1) in the case of wetlands, those set out in
proposed rule 15A NCAC,2B .0220, and existing EMC rule 15A NCAC 2B .0201; and (2) in the
case of other classes of state surface waters, those standards found in rules 15A NCAC 2B .0201, 2B
.0208, 2B .0211, 2B .0214 and 2B .0216.
A. Appropriate Distinction is Made Within.the Proposed Rules Between
the Substantive Water Quality. Standards to be Applied; and the
Review Procedures Used, in Making Section 441 Determinations.
A question has been raised whether the EMC, through .rule 15A NCAC. 2H .0506, is
attempting- to apply non-water quality related: restrictions to projects during the DEM Section 401
certification review. We agree that state Section 401 certification procedures may be concerned only
with water quality considerations.
Those cases which have interpreted the scope and breadth of ... authority that was
divested to the states by Section 401 ... have construed the divestiture narrowly and
have consistently held that a .[state's) authority extends only to consideration of the
proposed project's impact on the applicable water quality standards implemented by
the State, in conformity with the Act.
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Mr. Richard B. W.isnant, General Counsel
March 21, 1995
Page 7
Fourth Branch Assn. v. New York Dept. of Envtl. Conservation, 550 N.Y.. S. 2d 769, 773 (N.Y.
Sup: Ct. 1989). We do not find that the procedural rules proposed at 15 NCAC 2H .0506 violate this
principle.
Consistent with Fourth Branch, the EMC proposes to authorize the DEM to determine a
proiect's.impact on the applicable.state surface water quality standards through the use of the review
procedures found at 15A .NCAC 2H ..0506. As discussed previously, state surface water quality
standards are found in rules 15A 2B .0201, 2B .0208, 2B .0211, 2B .0214,,2B. 0216; and proposed
rule 15A NCAC 2B .0220. These standards are the substantive criteria for Section 401 certifications.
The water quality certification review procedures set out. in proposed rule 15A NCAC 2H .0506 are
certification review procedures. They are not substantive Section 401. decision-making oriteria. 3
Specifically, proposed, rule 1. 5A NCAC 2H .0506 describes a sequencing process.by which
an applicant whose project would. not normally be allowed under applicable state water quality
standards may obtain state certification by demonstrating that the project:. (1) has no practical siting
alternative; (2) will minimize adverse project environmental impacts that may result in water quality
degradation, so that the activity will not result in unacceptable degradation,-of state waters either .
considered alone or iri conjunction with other activities affecting the water body under consideration; .
and (3) provides for replacement of lost or degraded uses.of state waters through mitigation. The
EMC proposes, through this evaluative process, to balance these three demonstrations against
wetlands elimination to achieve an overall. water quality goal, widle allowing reasonable
development affecting state waters. To achieve this goal, the EMC must be guided by water quality
considerations. l-lowever, it is the EMC's responsibility to determine.the manner and method by.
which the State performs this balancing function,
Further, proposed rule. 15A NCAC 2H .0506 permits: a proposed project that is determined
not to violate any applicable state water quality standard either. because (1) the activity is covered by
a general certification under 15A NCAC 2H .0501(c)(2), or (2) the Director's initial review of the
project indicates that it "would not remove or degrade existing uses," to go forward without meeting
the full sequencing requirements set out in the rule. See, 15A NCAC 2H .0506(x). Other projects
s Some rule commenters argue that the rule 2H..-0506 review procedures are unlawful because
they consider the water quality impacts of a proposed project as a whole, and that under Section 401.
state water quality.certification.may only be denied if the discharge from axe project would violate a
state water quality standard. Assuming, arguendo, that to be a correct statement of the federal law,
we reiterate that rule 2H .0506 contains no substantive criteria for certification denial, but only
defines the process the DEM will use to determine whether the discharge would violate the
substantive criteria that are applicable to the-affected waters. Consequently, under the proposed
rules, regardless of the type of project- proposed, the State would deny a Section 401 water.quality
certification only where the discharge associated with the proposed activity was found to violate
North Carolina's water quality standards, including removal of a significant use'of state waters.
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March 21, 1995
Page 8
would undergo a full analysis according to rule review procedures. In essence, as discussed further
in Section IV., by enacting the rule 15A NCAC 2H .0506 review process, the ENIC is proposing to
establish as state policy that projects that can make the showings required by the applicable Section
401 water quality certification review procedures will be deemed to comport with state water quality
standards, including state antidegradation requirements.
B. North Carolina Wetlands are Waters Within the Meaning:of the Clean
Water Act, and are Thus Appropriately Considered for Section 401
Water Quality Certifications.
` Some rule commenters have sought to distinguish between wetlands and other state surface
waters in terms of the ability of North Carolina to make a Section 401 water quality certification
determination for projects that would affect wetlands. The question is whether.. under federal. law,
the Section 401 certification process may only be used to protect existing water quality in streams or
other flowing state waters. Those taking this view rely on the language of the EPA regulation
codified at 40 CFR. § 131.12 (1982) as a portion of that agency's antidegradation pokey
implementing regulations, which states,.in pertinent part: "[e]xisting instream water uses and the
level of water quality necessary to protect the existing, uses shall be maintained and protected"
(emphasis suppliedy -. We believe a state's' 401 certification responsibilities are not limited to
protgx ting instreain water uses for two reasons.
First,' in interpreting its own rules, EPA treats wetlands -and other United States waters
synonymously, expressly stating that the federal antidegradation policy applies io wetlands, just as it
does to the other waters of the nation:
...EPA interprets § 131.12(a)(1) of the antidegradation policy to be satisfied with
regard to fills in wetlands if the discharge did not result in "significant degradation"
to the aquatic ecosystem as defined under ... the Section 404(b)(1) guidelines. If any
wetlands were found to have better seater quality than 'fishable/ swimmablethe
State would be allowed to lower water quality to the no significant degradation level
as. long as the requirements of Section 131.12(a)(2) were followed. As for the
ONRW provision of antidegradation ...., there is no difference in the way it applies
to wetlands and other water bodies (emphasis supplied).
EPA Questions ..& Answers. on: Antidegradation`5 (1983). This interpretation of regulations must
be accorded deference by a reviewing court. See, e.g., PUD No. 1, supra; 114.'S.Ct at 1909.
Secondly, the United States Supreme Court has previously field that wetlands, even if flooded
by groundwater and not by adjacent flowing waters, are navigable waters within the regulatory
purview of Section 404 of the Clean Water Act.. U.S. v. Riverside Bayview Homes, 474 U.S. 121
(1985). Consequently, since (1) wetlands are. navigable waters under Section 404 jurisdiction, (2)
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IYLI. au..llwu L. YY 111JL1a.Ll1, tl W.tVl 61. C..V LLLSJ4l
March 21, 1995
Page 9
the FMC's proposed wetlands water quality standards are expressly applicable to these Section 404
jurisdictional wetlands, 'and (3) Section 401 requires that a state certify that any project requiring a
Section 404 permit meets the state's water quality standards, dt is clear. that the Section 401
certification process anticipates that federally permitted activities occurring in wetlands must
undergo the Section 401 certification process. Consequently, we believe that,there can be no serious
question that the Section 401 certification process would lawfully include the.wetland water quality
standards and uses established under the proposed EMC rules.
III. Do the Proposed Rules Establish a Separate, Duplicative Permitting Program
Without the Requisite Statutory Authority?
The EMC has, at least since the 1989 adoption of rule 15A NCAC 2B .0109, used the federal
Section 404(b)(1) Guidelines to determine whether a federally permitted activity in wetlands will
result in a violation of state water quality standards.' During the public hearing process, the issue has
been raised whether-the use of the Guidelines in making water quality certification decisions for
projects that affect wetlands would` operate to establish an unauthorized "Section 404 permitting
program" for the State. As discussed below, adoption of the proposed rules would- not necessarily
result in a duplication of the Corps' Section- 404 review .process, and would not constitute de facto
assumption of the federal Section 404 dredge-and-fill permitting. process . by the DEM. As the
.Environmental Division has previously advised the DEHNR, there would need to be additional
statutory authority from the General Assembly for assumption of the Section 404 permitting
program.
The Section 404(b)(1) Guidelines have been used by the U.S.. Army Corps of Engineers
("Corps") and the EPA for more than a decade in reviewing the impact of proposed activities on
wetlands. The Section 401 review procedures proposed to be adopted by the EMC, in rule 15A
NCAC 2H .0506 are very similar to the federal Guidelines. Despite that similarity, our analysis of
the rule leads to the conclusion that they will not necessarily be duplicative of federal review.
Further, we know of no provision in state or federal law that automatically precludes -the: potential
application of similar review procedures by state and federal permitting agencies contemplating the
same project.
Where the purposes of the state and federal agencies in. applying similar procedures differ
substantially, as the DEM has indicated is the case here,. the review .process is likely to also differ
significantly. The Corps' use of the Section 404(b)(1) Guidelines is aimed at preventing net loss of
the nation's wetlands under federal policy directives. However, Corps' regulations provide that in the
case of proposed projects that will affect isolated and headwater wetlands,'the Section 404(b)(1)
Guidelines will not be applied across the board in project evaluation, but will be applied, if at all,
only on a case-by-case basis..DEM has stated its primary goal'in applying proposed rule 15A NCAC
.0506 is to ensure that all projects affecting state wetlands, especially those such as -isolated and
headwater wetlands, which are not evaluated by the Corps under the federal Guidelines, are
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March 21, 1995
Page 10
thoroughly examined for their effects on state water quality. Consequently, it is unlikely that any.
actual duplication in permit analysis will result. In addition, the State and the Corps.could, through a
State Programmatic General Permit, provide for analysis of federally permitted projects in such a
way as to preclude even any potential duplication of process.
Similarly, some comments on the proposed rules have suggested that consideration of matters.
reflected in the Section. 404(b)(1) Guidelines are exclusively within the purview of the Corps and the
EPA in making decisions related to Section 404 of the Clean Water Act, because the Guidelines are
aimed at protecting against wetlands loss, and have little to do with protecting water quality per se.
It should be noted, perhaps, that one purpose of the Section 404(b)(1) guidelines is to "maintain the,
Oernical, physical, and biological integrity of waters of the United States...." 40 CFR § 230.1(a).
Proposed rule 15A 2B.0506 articulates a policy of (1) avoidance of impacts to state waters, (2)
minimization of impacts that do occur, and (3) requiring mitigation for degradation of state waters,
and the EMC has deter 'Mined that policy is related to a goal of protecting state water quality.
Moreover, in the case of projects proposed for Indian tribal lands, the. EPA itself uses the Section
404(b)(1) Guidelines to make the required Section 401 water, quality, certification compliance
determination in lieu•of a state water quality certification. See, 20 January 1995 memorandum from
Thomas C. Welborn, Chief, Wetlands Protection Section, EPA, Region IV, entitled "401 Application
to EPA for Section 404 Tribal Projects". For those reasons, we believe that the proposed use. of
Section 401 water quality certification review procedures similar to the federal Section 404(b)(1)
Guidelines is entirely lawful.
IV. Will the Proposed Rules Operate to Halt any Elimination of Wetlands Areas,
in Light of the Antidegradation Policy of the Environmental Management
Commission?
An additional concern has been expressed that in light of the EMC's antidegradation policy,
found in 15A NCAC 2B .02 proposed rule 15A NCAC 2B .0220 would prohibit any development
of wetlands. The concern is whether any wetland fill project would be. permitted since the wetland
area itself would be eliminated and the wetland use could no longer exist.
This issue also arises under the language of the Clean Water Act, and has been resolved
nationally by the EPA's reading Sections 303, 402 and 404 of the Act together, recognizing that
permitting fill under the federal. regulations promulgated pursuant to Section 404 is the statutorily
authorized method for determining that significant uses of wetlands are not impaired. See, EPA
Questions & Answers on: Antidegradation 5 (1983). North Carolina takes a-similar approach in the
current EMC water quality classification rules at 15A NCAC 2B.0109:
Projects that alter the reach and extent of a freshwater wetland will not be considered
as removing existing uses of the wetland in violation of the Antidegradation Policy
[pursuant to 15A. NCAC 2B .0201(b)] if the alteration protects all existing and.
1-io
Mr. Richard B. Whisn.ant, General Counsel
Marc} 21, 1995
Page 1 i
designated uses of all waters of the State. In making this determination, the Director
will be guided by40 CFR Part 230, Subparts A through F.
We believe this is a lawful regulatory construction of the classification and use protection
requirements in North Carolina. The interpretation is specifically supported by several provisions of
the North Carolina statutes found in N.C.G.S. §.143-214.1. The context of those provisions relating
to classification, uses of waters and assignments is that a variety of factors must be considered by the
EMC to implement the policy and purposes of Chapter 143, Article 21.
The proposed. rules . are consistent with the existing EMC policy of reasonable
`accommodation of projects affecting wetlands while protecting overall state water quality.
Specifically, application of proposed rule 15A NCAC 2H .0506 under the existing policy of
reasonable accommodation means . that projects that make the required showings under the
certification review procedures are deemed to comport with state water quality standards, including
state antidegradation requirements. We believe this approach is a lawful application of EMC rules.
To make clear its intent to continue to apply a policy of reasonable accommodation, we recommend
that the EMC retain the relevant provision of 15A NCAC 2B .0109, or one equally explicit, in the
new rules.
CONCLUSION
For the above reasons, it is our opinion that the wetland standards and. the Section 401 water
quality certification review procedures proposed for rule adoption by the EMC are adequately
authorized by the North Carolina General Statutes and consistent with federal law. We will be
happy to continue to assist you, the EMC, the regulated community and interested commentators to
assure that any proposed rules relating to state water quality are authorized by state law, and clearly
understood.
1-11
Sincerely,
F?. ! / ICL?tQ V?-?
John R. McArthur
Chief Counsel
a
Daniel C: Oakley
' Senior Deputy Attorney General
S
Kathryn Jones Cooper
Special Deputy Attorney General
Timothy D. Nifong
Assistant Attorney General
JAM/DCO/KJC/TDN/dw
cc: Senator Beverly Perdue
Secretary Jonathan Howes
David Moreau
Preston Howard
Norm Christensen
1-12
SCR Bonnerton Cost Model
Relocation Costs from North to South
$x000
Prepare Equipment Walkway 1,620
Pit Opening South Side 229
Relocate Prestrip Equipment 820
Rehandle DL Box Cut Material 2,052
Prestrip Area Not Mined - North Side 774
5,495
Escalation from 2005 to 2008 (3.0% per year) 510
Total Costs in 2008 Dollars 6,005
r
,C
1.66
53.30
0.32
i?
/? lJ1
c>
u
J r?.7
Alt, L Inoncts 6y?)WO Nlnlnizn tlan
Per Nit ??g Conc ye-
J Acres A- Ton-MN Minin,
-43 -76 -1.4 -0.3
Permit Area Removed for DWQ Minimization C
Excavated Area Removed for DINO Minimization C
LEGEND ACRES
BONNERTON BASE PROJECT AREA 2,806
BONNERTON ALTERNATIVE L DWQ MINIMIZATION C 2,642
BONNERTON L ALTERNATIVE - EXCAVATION LIMITS 1,992
RECOVERABLE CONCENTRATE = 35,590,000 TONS
® Alt. L Additional Minimization Proposal
Bonnerton-For Discussion Only
1,500 0 1,500 Feet PCS PHOSPHATE MINE CONTINUATION
11111 SOURCE: NC PENN. DM5ION OF PARKS AND Scale: As shown Drawn b : BFG
RECREATION, NATURAL HERITAGE PROORAM,
500 0 500 Meters SIGNIFICANT NATURAL HERITAGE AREA SHNA) Date: • 2/cj?G$ File: nAxzxA/wmc n/swa./
SHNA.ZIP. JUNE 06, 200R, NC STATED E, BONR+N-ALi- e1aTa c0u mo]oz sHNA a0E
NAD 1903, METERS, W61Y.NCONEMAP.NET Approved by Figure 4-7b
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3C.aa AC e ? 1e i? flit L tnancts by DVO MlnlnlzntlOn
a Pernlt Dug C.- Years
J r P ? ACEti Acres TOnsxMM wag,
T.ee ac -109 -114 210 -0.4
2 i
0.32 AC
Permit Area Removed far DWD Minimization C
5 T .t, I Excavated Area Removed for DW0 Minimization C
,A .
s q5-?`C J LEGEND ACRES
BONNERTON BASE PROJECT AREA 2,806
eI " s BONNERTON ALTERNATIVE L DINO MINIMIZATION C 2,576
BDNNERTON L ALTERNATIVE - EXCAVATION LIMITS 1,954
RECOVERABLE CONCENTRATE = 34,897,000 TONS
s
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2. ~ I Er. ?.., -?
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® Alt. L Additional Minimization Proposal
Bonnerton-For Discussion Only
1,500 0 1,500 F..t PCS PHOSPHATE MINE CONTINUATION
SOURCE: NC DENR, OMSION OF PARIS AND Scale: As shown Drawn b : BFG
RECREATION, NATURAL HERITAGE PROGRAM,
Soo 0 500 M.T.n SIGNIFICANT NATURAL HERITAGE AREA (SHIVA) Date! )'Z/rJ/Dg File: 11056210/AlnnnO/91rN
SHNA2IP, JUNE 06, 2008, NC STATEP q E, 60NRe1-Air COM 030]06 SHIVA Oe0 MI
-111 /
NAD IHBS, METERS, WwN.NGONEMAP,NET Approved by: Figure 4-7b
6
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PC5
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174 I?A,
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?C7S Ila `II(Q-(Qo(o`t
FW: PCS Meeting w/ DWQ Tomorrow https://webn-ail.ncmail.net/cp/ps/Mail/ViewMsgController?d=nctmil...
From: Chris Dillon (Pres. Pro Tem's Office) [Chrisd@ncleg.net]
Date: Dec 11, 2008 16:23
"Robin W. Smith"<robin.w.smith@ncmail.net>, "Coleen Sullins"
To: <Coleen.Sullins@ncmail.net>
Cc:
Subject: FW: PCS Meeting w/ DWQ Tomorrow
Attachments: DSKMBT_C45108121104510.pdf (1420 KB)
The section I marked in black marker on the first map shows the 1,500 ft. mining corridor we're proposing.
We would need to actively mine that 1,500 ft. corridor.
On the second map, you'll see a jagged section between the two green highlighted sections. That jagged
section is the section of the wet hardwood forest that would be impacted by the 1,500 ft. mining corridor. All
the other pieces, including the green highlighted sections, would be protected.
I of 1 12/11/2008 10:08 PM
f 1 ? _ 1Y
SI,
L's
P.,wt nm Lrvtc Y..rs
'"'yr. n ?- a, -ll6 -126 -22 -D.A
17
t.:7r
Pamll Ma R.mowd fdr WO AOntrn3oti.n D
` - _.- E-wt°d M. Awaftd he D'A'9 Imam qWn D
- -?,? - , L>:cedo ?
80M MMN BASE PROJECT AREA 2,608
BOMERTON ALTERNATVE L DWO tAINWRATION D 2,569
80NNERTON L ALTERNATIVE - EXCAVAOON LIIAn 1,942
RECOVERABLE CONCE]4MTE - 34,889,000 TONS
ii ??? t m J
„
J Alt. L Addllional Minimization Proposal
icy Bonnerton-For Discusslon Only
1,50a D i.sm r..t PCS PHOSPHATE MINE COKnMUATION
' R? WM MIMM OF Pk-63 Scale: As shown Drawn b : BFG
600 a FMCWX ioK "UK REAL M? RDV?VA.Cy?
500 M.An t>.u1r rwnm,? ?nrc[ii[TI?R Date: 12/5/08 le+ mrmVmmo/9.Nr A via
SI.M?P, JIIN: Q0. 10b, !1C 4 F. _
Approved byz Figure 4-7b
PCS Bonnerton area
S r c c>v. d,Q'Y"l &N-co-S. for C o rr? C_:? Ao%-