20080868 Ver 2_SELC Public Notice response_20081126

'SOUTHERN ENVIRONMENTAL LAW CENTER
Telephone [phone]
Facsimile 919-929-9421
[e-mail]
200 WEST FRANKLIN STREET, SUITE 330Charlottesville, VA
CHAPEL HILL, NC 27516-2559 ?. Chapel Hill, NC
Atlanta, GA
Asheville, NC
Cr ,
Sewanee, TN
November 26, 2008
Mr. Paul Rawls
Section Chief
Division of Water Quality
Department of Environmental and Natural Resources
1601 Mail Service Center
Raleigh, NC 27699
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Re: Proposed PCS Phosphate Mine Expansion - 401 Certification
Dear Mr. Rawls,
On October 20 and 27, 2008, PCS Phosphate ("PCS"), through its counsel, wrote
you to address several issues related to its proposed mining impacts to the nonriverine
wet hardwood forests on the Bonnerton tract ("Bonnerton hardwoods") described in its
pending 401 Certification application. We responded to those letters on behalf of the
Pamlico-Tar River Foundation in a letter dated November 7, 2008. PCS responded to
that letter on November 13. The information in PCS's most recent letter does not affect
the Division of Water Quality's authority to protect the nationally significant Bonnerton
hardwoods. PC S's focus on these hardwoods has, however, caused it to overlook other
inadequacies in its application that mandate denial of its requested 401 Certification.
As we stated in our comments on July 7, 2008, PCS's application fails to meet
multiple requirements for a 401 certification. Most notably, PCS has failed to
demonstrate that there are no practical alternatives to its proposed action as required by
15A 02B .0506(c)(1). Any reliance by PCS or DWQ on the Army Corps of Engineers's
economic analysis to meet that requirement is unwarranted. The Corps's economic
analysis is arbitrarily constrained and distorts economic models in a manner that favors
more destructive mine alternatives. As the U.S. Environmental Protection Agency stated
in its comments on the final environmental impact statement for the project, and we
commented on the 401 application, PCS could economically mine alternatives that avoid
hundreds of acres of wetlands that would be destroyed under PCS's proposed action.
Further, DWQ must deny PCS's certification request because PCS has not
demonstrated that it complies with state law regarding riparian buffer mitigation. PCS's
buffer mitigation plan substantially relies on two proposed actions of the Division of
Water Quality that will require rulemaking. These actions cannot be taken until
rulemaking is complete. First, PCS seeks buffer mitigation credit for buffer restoration
that does not meet the requirement in 15A NCAC 02B .0260(4) that "[tjhe mitigation
effort shall be located the same distance from the Pamlico River estuary as the proposed
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impact, or closer to the estuary than the impact." DWQ proposes to allow that mitigation
credit based on a policy interpretation that buffer mitigation meets the above standard if it
is located in the same eight-digit hydrologic unit as the proposed impact without regard to
the mitigation site's proximity to the estuary. That interpretation is contrary to the plain
language of the regulation and constitutes a revision of the regulation that requires
rulemaking.
Second, PCS seeks approval for a flexible buffer mitigation package in
anticipation of action by the Environmental Management Committee ("EMC") under
N.C. Gen. Stat. § 143-214.20(a)(4) to create a program for mitigation through
"alternative measures." But the development of a program that allows "alternative
measures" for buffer mitigation must go through the rulemaking process before DWQ or
any applicant can rely on that program.I
A 401 certification is confirmation that the proposed action complies with state
law. Thus, it cannot rely on future changes in state law through anticipated rulemaking to
excuse non-compliance with existing regulations. Moreover, PCS's reliance on an
anticipated rulemaking to meet existing legal requirements is an express admission that
the proposed action does not comply with state law. Therefore, PCS's requested 401
Certification must be denied.
Nor can PCS rely on mitigation credit from the Ecosystem Enhancement Program
("EEP") to meet its buffer mitigation requirements. It has come to our attention that EEP
has agreed to accept responsibility for approximately 22 acres of mitigation for PCS's
buffer impacts. That mitigation must be rejected because 1) EEP has not identified the
sites for the proposed mitigation and therefore cannot demonstrate that the sites will meet
the regulatory requirements and 2) it is not clear that EEP will be able to find any
appropriate mitigation sites given that PCS intends to restore all mitigation opportunities
uncovered by its "exhaustive" search of the hydrologic unit and it represented to the
EMC in its withdrawn variance request that additional restoration sites do not exist.
For the foregoing reasons, DWQ must deny PCS's 401 Certification request. In
addition, any certification DWQ ultimately issues to PCS must be conditioned on
avoidance of the nationally significant nonriverine wet hardwood forests on the
Bonnerton tract. PCS has not demonstrated that it can replace the existing uses on this
tract through mitigation and has not established that its proposed action has a public
purpose. Therefore, the proposed action cannot satisfy 15A NCAC 02B .0506(e) and the
wetlands must be avoided. Further, PCS must ensure that mining in the vicinity of these
wetlands will not alter their hydrology.
Any 401 certification issued to PCS must include extensive groundwater
monitoring. Because of the nature of PCS's proposed action, as well as documented
parameter values at the PCS site that exceed Class GA groundwater standards, DWQ
' It is worth noting that the mitigation programs implemented in the Tar-Pamlico Buffer Rules pursuant to
N.C. Gen. Stat. § 143-214.20(a)(1), (2), and (3) went through rulemaking. See 15A NCAC 02B.0260(7),
(8), and (9).
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should consult with the U.S. Geological Survey and must implement a rigorous
monitoring program that will detect adverse impacts to groundwater resources.
Please contact us if you have any questions regarding the content of this letter.
Sincerely,
11-V /
O-J5-- ( AXLe,
Derb S. Carter, Jr.
Senior Attorney/Carolinas Office Director
/ /<. ZI,_
Geoffrey R. Gisler
Associate Attorney
cc:
Sec. William G. Ross, Jr., DENR
John Dorney, DENR
Mary Penny Thompson, Esq., DENIM
Colleen Sullins, DENR
Heather Jacobs Deck, Pamlico-Tar River Foundation
Tom Walker, USACE
Brooke Lamson, Esq., USACE
George House, Esq., Brooks Pierce