20080868 Ver 2_USACE Correspondence_20090428

CECW-CO
DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
441 G STREET NW
WASHINGTON, D.C. 20314.1000
APR 2 8 2g
MEMORANDUM FOR ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS)
SUBJECT: U.S.-Environmental Protection Agency, Elevation Request for Section 404 Permit
Decision, Potash Corporation of Saskatchewan Phosphate Division, Aurora Operation (PCS
Phosphate), Beaufort County, North Carolina
1. This is in response to your memorandum, dated April 9, 2009, concerning the.U.S.
Environmental Protection Agency's (EPA) request for elevation of the U.S. Army Corps of
Engineers Wilmington District proposal to issue a permit to PCS Phosphate. The permit would
authorize a project to enable the continuation of phosphate mining and mine-related activities to
directly impact via various forms of discharge into 3,961 acres of wetlands, 11 acres of open,
water, and 25,727 linear feet of streams over a period of 37 years at a location in the Pamlico-Tar
River watershed in Beaufort County, North Carolina.
2. The EPA request contends that the issuance of the proposed permit would cause substantial
and unacceptable impacts to. an aquatic resource of national importance (ARNI). The EPA
alleges that the District did not (1) conduct an unbiased alternatives analysis including all
appropriate avoidance and minimization of direct and indirect impacts of the project, (2) require
adequate compensatory mitigation for the project's unavoidable impacts including mandating
permanent protection of all avoided resources via binding real estate instruments, (3) decrease
the indirect effects of the project on avoided resources by improving the quality of the
reclamation areas, and (4) include measures to ensure effective monitoring and adaptive
management of the mining project and mitigation sites. The EPA offered an alternative to the
proposed project on March 24, 2009, and in light of the deficiencies they identified, they
recommend withdrawing the proposed permit authorization and initiating further analysis on
their proffered alternative to determine if it is practicable.
3. We have reviewed,the Environmental Protection Agency's request and relevant District
documentation.. We do not agree that the aquatic resources on the project site themselves
individually or cumulatively qualify as ARNI. The wetlands and streams on site have been
impacted for at least the last six decades through extensive agriculture and silviculture practices.
While there are areas that are of higher quality, such as primary nursery areas, coastal marsh, and
some bottomland hardwood forest, those systems have been avoided. Furthermore, the
comprehensive mitigation plan that is proposed will return more than twice the impacted acreage
from degraded agricultural/silvicultural lands to wetland with more than 10 miles of associated
stream restoration included. In addition to the comprehensive mitigation package, all mined
property must be reclaimed to a stable, vegetated state with restored surface hydrology; acreage
that is not included in any impact offsets calculated by the District. Special conditions have been
included that require mined areas to be reclaimed on a specific schedule, require capping with
overburden and then topsoil, specify plant species for revegetation, and establishes an
CECW-CO.
SUBJECT: U.S. Environmental Protection Agency, Elevation Request for Section 404 Permit
Decision, Potash Corporation of Saskatchewan Phosphate Division, Aurora Operation (PCS
Phosphate), Beaufort County, North Carolina
interagency panel for adaptive management of the success of the reclamation areas. Finally, a
special'condition has been included to establish an independent panel of qualified experts to
annually evaluate the direct and indirect impacts of mining and the benefits of the compensatory
mitigation in accordance with the expectations at the time of permit issuance. We do not agree
that the proposed permit will result in substantial and unacceptable impacts to the aquatic
environment or that other alternatives need to be reviewed. The District performed a careful,
unbiased economic evaluation of all alternatives during their practicability determination, which
was performed through a comprehensive EIS process over an 8 year period. The alternative
proposed by the EPA on 24 Match 2009, well into the 404(q) process, is less cost effective than
several alternatives that were dismissed as not practicable.
4. We support the District's determinations on these issues, including their application of the
Section 404(b)(1) Guidelines that resulted in a determination that.the applicant's project was the
least environmentally damaging, practicable alternative. The District's review and evaluation of
this permit application fully comports with all regulation and current policy guidance.
Moreover, the decision shows a careful consideration of the quality of the impacted aquatic
resources, their contributions to the watershed, and a sound and complete compensatory
mitigation package to offset unavoidable impacts to those resources. The overall project purpose
was adequately presented and resulted in a fully acceptable alternatives analysis.
5. I recommend that this case not be elevated and that the District Commander proceed with the
permit decision with two policy-specific recommendations, as follows: '
a. The addition of a special- condition regarding avoided aquatic resources to strengthen
what is already a firm protective stance on the remaining aquatic resources in the project area,
and
b. Revision of the Record of Decision to clearly reflect the aquatic resource functions
being impacted and how those functions are being offset by the comprehensive mitigation
package.
b. The resources within the Albemarle Pamlico Estuary play an important economic and
environmental role and regulatory decisions involving these resources are difficult. We applaud
the District for its diligence in completing an exhaustive EIS analysis of alternatives and
pursuing mitigation options that would compensate for the losses that would occur as a result of
permitting this project.
2
CECW-CO
SUBJECT: U.S. Environmental Protection Agency, Elevation Request for Section 404 Permit
Decision, Potash Corporation of Saskatchewan Phosphate Division, Aurora Operation (PCS
Phosphate), Beaufort County, North Carolina
7. Enclosed is a copy of the "HQUSACE Analysis and Options Paper" prepared for this
elevation case and, as requested, we are also enclosing a.draft reply to the requesting official
from the Environmental Protection Agency. If you have any additional questions or disagree
with my recommendation, please call me or contact Ms: Jennifer Moyer, Program Manager,
Regulatory Community of Practice at [phone].
FOR THE' COMMANDER:
STEVEN L. STOCKTON, P.E.
Director of Civil Works
Enclosure .
CECW-CO
HQ ANALYSIS AND OPTIONS PAPER
28 April 2009
SUBJECT: U.S. Environmental Protection Agency, Elevation Request for Section 404 Permit
Decision, Potash Corporation of Saskatchewan Phosphate Division, Aurora Operation (PCS
Phosphate), Beaufort County, North Carolina.
1. PURPOSE: This paper provides the Headquarters, U.S. Army Corps of Engineers (Corps)
analysis of the elevation request from the U.S. Environmental Protection Agency (EPA) to the
ASA(CW) of a proposed decision by the Corps Wilmington District to issue a Section 404
permit to PCS Phosphate.
2. BACKGROUND: The Corps proposes to issue a Department of Army permit to PCS
Phosphate to authorize a project to enable the continuation of phosphate mining and mine-related
activities to occur upon 11,454 acres of a 15,100 acre project site. The project area contains
6,380 acres of jurisdictional wetlands and open waters and 115,843 linear feet of jurisdictional
streams. The alternative the Corps proposes to authorize will directly impact via various forms
of discharge (mechanized land clearing, direct discharge of over burden, construction of ancillary
facilities, etc.) 3,961 acres of wetlands, 11 acres of open water, and 25,727 linear feet of streams
over a period of 37 years. PCS Phosphate proposes to restore, enhance, and/or preserve a total of
11,196 acres of wetland and 84,888 linear feet of stream to offset direct and indirect impacts to
jurisdictional aquatic resources. All compensatory mitigation will be constructed in advance of
impacts and will be subject to monitoring requirements to ensure success.
The Wilmington District published a draft Environmental Impact Statement (EIS) for the no-
build alternative and nine of the build alternatives considered in October 2006. A supplemental
draft EIS with two additional build alternatives was published in November 2007. The final EIS
containing the complete analysis for all alternatives was published in May 2008.
3. PROJECT SETTING: PCS Phosphate currently owns and operates an open pit mining
operation on the Hickory Point peninsula adjacent to the Pamlico River and South Creek, north
of Aurora, in Beaufort County, North Carolina, which has been in operation since 1965. In
1997, PCS Phosphate was issued a Department of Army permit to impact 1,268 acres of waters
of the United States to mine phosphate adjacent to its onsite manufacturing facilities which
produce sulfuric acid, phosphoric acid, purified acid, liquid fertilizer, superphosphoric acid,
diammonium phosphate, deflourinated phosphate, animal feed, and solid fertilizers.
The project area lies on the Atlantic Coastal Plain in the Tidewater Region and has elevations of
approximately 10 to 20 feet above sea level. The drainage systems of the area are modified
dendritic and empty into tributaries of the Pamlico River, which flows east into the Pamlico
Sound, west of Cape Hatteras. Drainage of soils in the project area has been poor, as .
demonstrated by their hydric nature, and the natural hydrology of the area has been extensively
altered by agricultural and silvicultural ditches over at least the past six decades prior to any
mining activities commencing in the area (Figures 1 and 2).

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In total, the project area is comprised of 15,100 acres containing 6,380 acres of wetlands and
115,843 linear feet of streams. The project area consists of three basic tracts; a 3,608 acre area
east of the current operation, and adjacent to South Creek, identified as the NCPC Tract; a 2,806
acre area west of the current operation, and adjacent to Durham Creek, identified as the
Bonnerton Tract; and a 8,686 acre area south of the current operation, and south of NC Highway
33, identified as the S33 Tract. (Figure 3)
Figure 3: Project Area showing three tracts; NCPC, Bonnerton, and S33.
a. Resources. The terrestrial resources in the project area are typical of herbaceous
assemblages in various stages of succession as much of the area not currently being farmed has
been in agricultural production in the past. Various other disturbances, such as fire and logging,
have also influenced the vegetative communities present on the site. The terrestrial biotic
communities identified within the project area include: hardwood forest, mixed pine-hardwood
forest, pine plantation, pine forest, sand ridge, forest, pocosin-bay forest, bottomland hardwood
forest, brackish marsh complex, agricultural land, herbaceous assemblage, shrub/scrub
assemblage, maintained area, and non-vegetated/maintained area. The NCPC Tract contains
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2,549 acres of waters of the U.S. and 55,549 linear feet of streams; the Bonnerton Tract contains
2,130 acres of waters of the U.S. and 17,106 linear feet of streams, none of which drain directly
into the Pamlico River; and the S33 Tract contains 1,701 acres of waters of the U.S and 43,209
linear feet of stream, with no areas or stream segments draining directly into the Pamlico River.
The Bonnerton and NCPC Tracts contain tidally influenced forested wetlands, streams, and salt
marsh designated as Essential Fish Habitat by the South Atlantic Fisheries Management Council
(SAFMC) for Federally managed species including peneaid shrimp, gray snapper, summer
flounder, and bluefish. A subset of these areas has also been designated by the state of North
Carolina as primary nursery areas (PNAs). Pursuant to that designation, the SAFMC designated
the PNAs as Habitat Areas of Particular Concern (HAPC).
Table 1: Impact Data for Pro osed Project (Modified Alternative L)
NCPC Bonnerton S33 Total
Total Tract Acreage 3,608 2,806 8,686 15,100
Total Mining Area (acres) 2,157 2,559 6,738 11,454
Total Wetland/Open Water
Acreage 2,549 2,130 1,701 6,380
Total Streams (It) 55,528 17,106 43,209 115,843
Wetland/Open Water
Impacts acres 1,559 1,922 491 3,972
Stream Impacts (It)--Total 6,093 8,499 11,135 25,727
Perennial 3,050 7,799 10,849
Intermittent 6,093 5,449 3,336 14,878
% Impacts-
Wetlands/Open Water i 61% 90% 29% 62%
% Impact-Stream 11% 50% 26% 22%
% Impact-Total Site 60% 91% 77% 76%
b. Impacts. The proposed project would authorize impacts allowing PCS Phosphate to
mine the NCPC Tract first, impacting a total of 1,559 acres of jurisdictional wetlands and open
water and 6,093 linear feet of intermittent streams. The operation would then move to the
Bonnerton Tract where 1,922 acres of jurisdictional wetlands, 3,050 linear feet of perennial
stream, and 5,449 linear feet of intermittent stream will be impacted. Finally, PCS Phosphate
would move south of NC Route 33 to the S33 Tract where 491 acres of wetland and 7,799 linear
feet of perennial streams and 3,336 linear feet of intermittent streams will be impacted (Table 1).
Pursuant to the conditions of a mandated mining permit from the North Carolina Division of
Land Resources, all mined areas will be reclaimed to comply with the following criteria:
1) stable condition;
2) - useful purpose;
3) designed to protect adjacent surface resources including preventing/eliminating
conditions that may be hazardous to animal or fish life;
4) in compliance with state air and water quality laws;
5) restoring/reestablishing stream channels and stream banks in a manner that minimizes
erosion, siltation, and other pollution; and
6) vegetated.
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Previously reclaimed areas owned by PCS Phosphate have included extensive stream and
wetland restoration (e.g. Whitehurst Creek, see PCS Pamphlet).
4. AGENCY POSITION: The EPA's request for elevation cites the criteria of Part IV of the
Section 404(q) Memorandum of Agreement (MOA). The primary issues raised, and upon which
this analysis focuses, are summarized as follows:
a. Aquatic Resources of National Importance (ARNI). According to the MOA, the
elevation of specific individual permit cases will be limited to those cases that involve an ARNI.
The EPA contends that the resources involved in this application deserve this designation for the
following reasons: 1) collectively, all aquatic resources in the project area perform important
ecological functions that support the Albermarle Pamlico Estuary, which has received numerous
grants in recent years as part of EPA's National Estuary Program; 2) several tidal creeks on the
project site have been designated Primary Nursery Areas by the state of North Carolina; and 3)
the Bonnerton Tract contains an area of non-riverine, hardwood, forested wetland that has been
designated as a Nationally Significant Natural Heritage Area by the North Carolina Natural
Heritage Program. .
b. Substantial and unacceptable impacts. According to the MOA, elevated cases must
propose resource damages of similar magnitude to cases evaluated under section 404(c) of the
Clean Water Act. Section 404(c) authorizes EPA to prohibit, restrict, or deny the discharge of
dredged or fill material at defined sites in waters of the United States (including wetlands)
whenever it determines, after notice and opportunity for public hearing, that use of such sites for
disposal would have an unacceptable adverse impact on one or more of various resources,
including fisheries, wildlife, municipal water supplies, or recreational areas. The EPA asserts
that the impact proposed for authorization will be the single largest impact authorized in North .
Carolina under the Clean Water Act and the loss of the functions provided by the aquatic and
non-aquatic resources on the PCS Phosphate site will contribute to the significant degradation of
waters of the Unites States.
The EPA contends that water quality enhancements are provided by the existing wetlands and
streams on the PCS Phosphate site. They go on to assert that these waters function to assist in
alleviating the problems of excessive nutrients causing harmful algal blooms, low oxygen levels,
increased fish kills, and other symptoms of stress and disease recorded in the Tar-Pamlico River
Basin. Should waters be impacted as proposed, EPA argues the benefits of these waters will be
permanently eliminated.
c. 404(b) (1) Guidelines Analysis. The analysis of alternatives is part of the CWA's
Section 404(b)(1) Guidelines. Part of this analysis is the rebuttable presumption that, for non-
water dependent projects such as the one at issue, there are practicable upland alternatives that
are less damaging to the environment. In this case, the purpose of the proposed project has been
defined as,
"to continue mining PCS Phosphate reserves in an economically viable fashion. More
specifically, this is defined as a long-term, systematic and cost-effective mine advance
6
within the project area for the ongoing PCS Phosphate mine operation near Aurora, North
Carolina."
The evaluation of practicable alternatives which satisfy the project's primary purpose is a key
provision of the 404(b)(1) Guidelines, which further define practicable as "capable of being done
after taking into consideration cost, existing technology, and logistics in light of overall project
purposes." (40 CFR 230.10(a)(2)). The selection of the least environmentally damaging,
practicable alternative (LEDPA) that does not have other, significant environmental
consequences, is a requirement of the Guidelines.
The EPA asserts that the proposed project does not represent the LEDPA for three primary
reasons:
1) The economic analysis performed to determine the practicability of alternatives
inappropriately excluded practicable alternatives with fewer impacts from further
consideration; therefore, there are less environmentally damaging, practicable alternatives
that meet the project purpose; and
2) All appropriate and practicable steps have not been taken to avoid, minimise, and
compensate for the project's adverse impacts to waters of the U.S. including requiring
permanent protection of avoided areas via binding real estate instruments; and,
3) Adequate compensatory mitigation to offset unavoidable direct impacts to-mature
forested wetlands to account for temporal losshas not been required.
Alternatives Framework. Eleven alternatives, each with sequencing variations, were considered
in the evaluation process, which was initiated in November 2000 with the submission of a
Department of Army permit application to the Wilmington District. Alternatives reviewed
included the following groups:
1. No Action: No permit would be issued. No discharge of fill material would be
authorized. The current mining operation would continue under its current permit until the limits
of authorization were reached. Additional mining could occur on upland areas. This alternative
was deemed not practicable as it did not meet the project purpose.
2. Other project configurations & sequences (smaller, larger, different, etc). During the
permit review process, the permittee responded to requests to consider reconfiguration to
increase avoidance and minimization with incremental reductions in the mining footprint. In
addition, the permittee also responded to requests to mine the three tracts (NCPC, Bonnerton,
S33) in varying sequences in order to maximize avoidance and minimization while maintaining
economically viable ore recovery. These considerations resulted in increased avoidance and
minimization to aquatic resources such that a grouping of practicable alternatives was identified
that ultimately included a project that was considered permittable. The proposed project
represents the smallest area and configuration to meet the stated project purpose and allow
mining to occur in a safe and efficient manner.
7
3. Other sites available to the applicant. North Carolina has three phosphate districts,
two of which, Frying Pan and Northeast Onslow Bay, lie beneath the Atlantic Ocean. The
remaining district is the Aurora District and is the district from which PCS Phosphate proposes
to extract ore under this permit. Although technologically possible, the logistics of offshore
mining of phosphate make the other sites problematic; additionally, it is likely that production
costs and environmental impacts of such mining would be significantly higher than extraction of
onshore ore deposits. Therefore, the study area was limited to an approximate 70,000 acre area
primarily within the Richlands Township of Beaufort County, North Carolina.
EPA Proposed Alternative. The EPA believes an alternative, which they proposed at a meeting
with the applicant on 24 March 2009 after the 404(q) elevation process was well underway and
well after the conclusion of the extensive, nine-year integrated, interagency review process and
NEPA evaluation, if determined to be practicable, represents a less environmentally damaging
alternative. This proposal differs from the proposed project in two primary ways:
a) Provides additional avoidance of areas of particular concern to the EPA including the
areas listed by the state of North Carolina as Natural Heritage Areas and Primary Nursery
Areas; and
b) Requires permanent protection of all avoided areas from future mining via binding
real estate instruments.
d Recommendations. Based on their concerns and understanding of the proposed
project, the EPA recommends that the Assistant Secretary of the Army (Civil Works) direct the
District Commander to do the following:
1) In coordination with (PCS Phosphate), withdraw the NOI letter and initiate
further analysis of the new proposed alternative to determine whether such alternative, or
a modification of it, would be practicable, and thus the "LEDPA'; or,
2) Revise the proposed permit consistent with the following:
a) revise its alternatives analysis for the proposed project to address
inconsistencies that bias identification of the LEDPA;
b) in development of the LEDPA, avoid direct impacts to the Nationally
Significant Natural Heritage Area and indirect impacts to the site's tidal creeks,
including those identified as Primary Nursery Area, to the maximum extent
practicable;
c) incorporate all appropriate and practicable measures to minimize the
impact of the mining project on avoided aquatic resources by improving the
quality of the reclamation areas (i.e., re-using top soil and re-vegetating with
target plant species);
d) ensure that all avoided aquatic resources are provided with permanent
protection from future mining with the appropriate binding real estate instruments
such as conservation easements;
e) revise the compensatory mitigation plan to effectively offset impacts to
mature forested wetlands; and
f) include measures to ensure effective monitoring and adaptive
management of both the mining and mitigation sites.
5. HQUSACE ANALYSIS: The EPA states that the wetlands and streams contained within the
project site collectively represent an ARNI because they perform important ecological functions
that support the Albemarle Pamlico Estuary complex. We do not agree that the aquatic resources
located on the NCPC, Bonnerton, and S33 Tracts constitute an ARNI individually or
cumulatively. We also do not agree that the issuance of a permit for the proposed action will
result in substantial and unacceptable adverse impacts on the Albemarle Pamlico Estuary
complex. The proposed project's impact area, including uplands, (11,454 acres) represents
considerably less than 1% of the 19,200,000 acre Albemarle Pamlico Estuary. Furthermore, we
disagree with the EPA's assertion in their 3 April 2009 Detailed Comments in support of this
elevation request that the proposed project will result in, "the complete loss of this entire suite of
wetland and stream functions" to the extent that this permit action will cause or contribute to
significant degradation of waters of the U.S.
a. Aquatic Resources of National Importance (ARN1). There is little doubt regarding
the environmental and economic importance of the Albemarle Pamlico Estuary and no argument
that as the second largest estuarine complex in the United States. Draining an approximately
19,200,000 acre watershed, it serves an essential role in the life cycles of many species of
commercially and recreationally important fnfish and shellfish as well as providing good habitat
for many species of waterfowl and shorebirds. We are aware that EPA has funded projects in the
greater Albemarle Pamlico Estuary aimed at addressing the priority problems facing the
watershed, such as non-point source pollution from urban and agricultural run-off, but are not
aware of any projects in the near vicinity of the project area that would or could be directly or
indirectly impacted by the proposed project.
1. Natural Heritage Area, Bonnerton Tract. The majority of the project area has
been extensively timbered and/or under agricultural practices for at least the last six
decades (Figures 1 and 2). The Bonnerton Tract contains an approximately 271 acre area
that has been designated by the North Carolina Natural Heritage Program (NCNHP) as a
Nationally Significant Natural Heritage Area (SNHA). However, the total area includes
not only nonriverine wet hardwood forest but also secondary areas that act as connections
between patches of higher quality wetlands. The NCNHP has no standard criteria by
which wetlands or sites are evaluated and ranked, the process is not peer reviewed within
the state, with other states, or with the Federal government to establish its "national"
status; the listing as nationally significant is purely a product of the state program and is
vetted entirely and only within that state program.
9
The NCNHP defines nonriverine wet hardwood forests as being dominated by various
hardwood trees typical of bottomland situations, such as swamp chestnut oak (Quercus
michauxii), Laurel Oak (Q. laurifolia), Cherrybark Oak Q. pagoda (falcata var.
pagodaefolia), Tulip Poplar (Liriodendron tulipifera), Sweetgum (Liquidambar
styrac j7ua), American Elm (Ulmus Americana), Red Maple (Acer rubrum), and Swamp
Tupelo (Nyssa biflora), with the key indicator species being the three oaks. PCS
Phosphate hired James D. Gregory, Ph.D. to conduct an assessment of the Bonnerton
Tract in light of its identification as a nonriverine wet hardwood forest of national
significance by the NCNHP and the weight the EPA assigned to that designation in their
request for elevation to the ASA(CW). Dr. Gregory determined that the Bonnerton Tract
is divided into three units. While there is little argument that the Eastern Unit is an
excellent quality area, it did not contain the key indicator species necessary or the
requisite number of mature trees (>75 years) or large enough in diameter trees for a high
quality nonriverine wet hardwood forest biotic community designation. The Western
Unit was determined to be of "poor quality" due to the vegetative community being
dominated by species adapted to drained soil conditions (i.e. non-wetland soils). The
Northern Unit was found to be of "very poor quality" as its predominant vegetative cover
is comprised of saplings and small trees of less desirable species, such as Red Maple
(Acer rubrum) and Sweetgum (Liquidambar styraciflua) interspersed with large canopy
gaps. Dr. Gregory further determined that the Eastern and Western Units are not
hydrologically interdependent with the Eastern Unit related to the Porter's Creek
headwaters and the Western Unit more closely related to the Suffolk Scarp.
Considering the documented logging via aerial photography; an affidavit from Curtis
Brown, PCS Land Supervisor, which details logging records from the Bonnerton Tract
from 1960 to present; and confirmation from the NCNHP that the areas designated as
SNHA received such designation in part due to undesirable species being logged from
them, it is clear that the tract has been significantly disturbed and manipulated over at
least the past six decades. This makes the overall national significance of this area
negligible. Notwithstanding the lack of national significance, it is recognized that the
wetlands on the project site and specifically the Bonnerton Tract do perform important
functions; therefore, the proposed project avoids impacts to approximately 212 acres
(approximately 78%) of the SNHA.. All avoided areas of the SNHA on the Bonnerton
Tract are being permanently protected from impact via binding real estate instruments
(i.e. conservation easements); this acreage is not included in the preservation component
of the mitigation package. Additionally, the compensatory mitigation package includes
the restoration of over 1,000 acres of nonriverine wet hardwood forest to a higher quality
than the impacted area on the Bonnerton Tract and preservation of 34 acres of excellent
quality nonriverine wet hardwood forest.
2. Tidal Creeks/Primarv Nursery Areas. The North Carolina Wildlife Resources
Commission has designated four tidal streams, Jacks, Jacobs, Tooley, and Porter Creeks,
within the project area as Primary Nursery Areas (PNAs). These creeks have also been
identified as HAPC by the South Atlantic Fisheries Management Council, affording them
the highest level of protection under the Magnusen-Stevens Fisheries Management Act
(MSFMA).
10
In recognition of their importance to the continuing health and function of the
surrounding fishery and their regional importance to the Albemarle Pamlico Estuary, all
impacts to PNAs have been avoided by the proposed project as have all impacts to
brackish marsh which are adjacent to and contribute collectively to the overall
functioning of these nursery areas. The National Marine Fisheries Service (NMFS),
responsible for implementing the MSFMA, concurred with the determination via
correspondence indicating their declination to pursue elevation under the provisions of
404(q), dated 17 April 2009, that direct impacts to HAPCs in the project area were
unlikely.
In response to concerns over indirect impacts to PNAs via direct impacts to headwater
wetlands associated with these tidal streams, the District has proposed a special condition
that will require the development of an extensive monitoring plan aimed at adaptive
management in the vicinity of these resources, which includes coordination with NMFS
and state resource agencies, tied to the direct impacts to ensure the continued health of
these important, avoided, aquatic resources. Based on previous mining in the area and the
successful preservation of PNA streams in close proximity to active mine areas, we
believe that many of the tidal streams in the project area will continue to function as
PNAs with the proposed project in place.
b. Substantial and unacceptable impacts. We reviewed the District's record relating to
the project proposal to impact 3,972 acres of wetlands/open water and 25,727 linear feet of
streams. While the magnitude of the impacts is daunting at first glance, it is important to note
that the impacts will occur over approximately 37 years, with nearly 3,481 acres of impact to
wetlands occurring in the first 15 years of mining (about 232 acres of impact per year). In the
same 15 year timeframe, nearly 14,592 linear feet of streams will be impacted (roughly 973
linear feet of impact per year). As mentioned above, the Albemarle Pamlico Estuary Complex
drains a 19,200,000 acre watershed. The lower Pamlico River has a watershed in excess of
800,000 acres; the proposed project would affect substantially less than 1% of this area.
Due to efforts to avoid and minimize impacts to less disturbed and/or higher quality wetlands,
many of the impacted wetlands are in extreme headwater and non-riparian landscape positions.
Many impacted areas are wet flats and many are either agricultural fields or are currently being
manipulated and maintained in an early to mid-successional condition through silvicultural
practices. All stream reaches impacted are in the upper headwaters of tributaries to the Pamlico
River Estuary in a concerted effort to reduce impacts to higher quality, downstream resources.
Although not required, all compensatory mitigation for the proposed project will be constructed
prior to impacts and is designed to restore entire watersheds. A portion of the proposed
mitigation has already been constructed by the permittee and has been deemed successful by the
District. Moreover, the District has established permit conditions that comprehensively offset the
unavoidable impact authorized. A special. condition has been added to the permit that will ensure
that impacts do not occur on any area until necessary to facilitate mine progression thus reducing
temporal loss of vegetative cover and ecological function. An additional special condition has
been included that requires reclamation of mined areas be accomplished in accordance with
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milestones established in coordination with the North Carolina Division of Land Resources to
ensure sequenced revegetation and stream reestablishment. This will ensure the timely start of
the biotic processes that will return the impacted watersheds to full ecological productivity.
The compensatory mitigation plan is comprised of 9 sites and will provide a total of 11,196 acres
of wetland mitigation, including restoration, enhancement, and preservation; and 84,888 linear
feet of stream restoration and preservation (Tables 2 and 3). The plan has been designed to
replace the aquatic resource functions being impacted by the mining operation and, when fully
successful, will result in higher functioning wetland and stream systems than those impacted.
The EPA expressed dissatisfaction with the replacement ratio for impacts to mature forested
wetlands due to the temporal loss of these resources to the biotic community for an extended
period while the vegetative community matures. Impacts to bottomland hardwood forests have
been minimized to 70 acres total. Mitigation for these impacts has already been constructed and
has been functioning for 10-12 years, providing a high quality offset for impacts to a disturbed
resource. Overall, wetland impacts will be mitigated at a minimum of a 2:1 ratio. This does not
include reclamation areas or additional stewardship in the impacted watersheds. The
compensatory mitigation package is consistent with the requirements of the joint Corps/EPA
Mitigation Rule.
Table 2: Compensatory Mitigation for Stream Impacts by Site
Mitigation Site Restoration 1 Enhancement 1 Preservation 1 Total I
Bay City 3,000 3,000
Hell Swamp 19,783. 19,783
Gum Run
Parker Farm 3,960 3,960
SC Corridor 26,736 26,736
P Lands
U Lands
Upper Back Creek 7,066 1,149. 8,215
Rutman 8,793 7,994 16,787
Sage Gut 5,401 1,006 6,407
Total 44,043 7,994 32,851 84,888
Table 3: Compensatory Mitigation for Wetland/Onen Water Impacts by Site
Mitigation Site Restoration ac Enhancement ac Preservation ac Total ac
Bay city 565 119 684
Heil Swamp 885 46 41 972
Gum Run 27 27
Parker Farm 245 162 196 603
SC Corridor 1,143 1,143
P Lands 2,075 381 135 2,591
U Lands 608 117 725
Upper Back Creek 116 38 18 172
Rutman 3,342 129 701 4,172
Sage Gut 105 2 107
Total 7,968 756 2,472 11,196
12
The comprehensive nature of the compensatory mitigation package is expected to provide direct
benefits to the South Creek and lower Pamlico River estuary through enhanced flood storage,
nursery habitat, nutrient storage, input and cycling, as well as improving overall water quality.
Wildlife habitat will be restored and enhanced as well as increasing groundwater recharge
opportunity zones in the project area. All mitigation areas will be protected in perpetuity by
appropriate real estate instruments.
When viewed in context of the overall watershed, whether the lower Pamlico River or the
Albemarle Pamlico Estuary, considering the total avoidance of the PNAs and all coastal marsh,
and with the District required extensive and comprehensive mitigation package developed to
offset the unavoidable impacts, we disagree with the EPA that the proposed project will result in
substantial and unacceptable impacts to the aquatic environment.
c. 404(6)(1) Guidelines Analysis. The 15,100 acre project area contains 262,000,000
tons of recoverable phosphate ore. The permittee has expressed a desire to mine as completely
as possible the economically viable phosphate reserves within the project area. Much of this
recoverable ore lies beneath aquatic resources, many of which perform functions which
contribute to the surrounding ecosystem and for which there is concern among the resource and
environmental communities.
We have reviewed the project purpose (see section 4(c) above), which was agreed to by the
Interagency Review Team (IRT), which included the EPA, and the permittee during the review
process. Although the subject of much discussion after the results were realized, the structure
and variables of the economic model used to determine practicability was also agreed to by the
IRT. As part of their review, the District required the permittee to evaluate the practicability of
the alternatives from a cost standpoint, in addition to logistics and existing technology, based on
the framework agreed to by the IRT and according to the 404(b)(1) Guidelines.
What is of particular issue to the EPA is their perception that the cost model used by the District
in determining practicability unfairly biased the alternatives analysis by precluding certain
alternatives from further consideration. In part, this discomfort results from the fundamental
requirement that alternatives must first be screened for practicability prior to being evaluated for
environmental considerations. This discomfort has caused the EPA and other resource agencies
to suggest revisiting alternatives, and to develop a new alternative, with fewer impacts to aquatic
resources without regard for the necessary practicability determination as a first step. The
District has undertaken an appropriate level of analysis for evaluating the practicability of the
various alternatives in this case.
As a result of discussions with the applicant, it was determined that, from a practicability
standpoint, the project area tracts had to be mined in the following order: NCPC-Bonnerton-S33.
From the economic modeling, the Corps consistently found that mining S33 alone or first in the
sequence was not practicable due to the high annual cost of mining the southern portion of the
tract. In addition, the move to S33 would incur a $103,000,000 cost to the pennittee to relocate
NC Route 33 and receding face costs, actions that potentially have impacts to the human
13
environment, which would necessarily be committed at the time a decision was made to move to
this tract. However, the phosphate market is also volatile; therefore, predicting future viability of
an already uncertain practicability becomes even more difficult.
Therefore, the District determined it was best to take a holistic approach to assessing alternatives
to ensure all reasonably foreseeable actions were assessed and, if appropriate, permitted as part
of a single and complete action. Based on the permittees initial application and their revised
application, which demonstrated a viable mining planning window of 15 years, the District
established an approximate 15-year window as what was necessary to fulfill the project purpose.
Currently, S33 is not practicable to mine. It may become so in the fixture due to technological
advances or to changing market conditions; therefore, it is included in the proposed project as the
third tract, in series, for impact. However, since it is not practicable now, it is not reasonable to
include only portions of the site into overall calculations. Due to the uncertainty that mining all
of S33 will become practicable in the future and thus allow the permittee to recoup the
investment costs of moving to the site, we agree that the District has not been inconsistent or
biased in their approach. The District has been reasonable in determining that a practicable
alternative must allow approximately 15 years of mining before requiring a move to S33.
Regardless, the EPA headquarters and regional office introduced an alternative to the proposed
project when meeting with the applicant, other resource agencies, and the District on 24 March
2009, suggesting it represented the Least Environmentally Damaging Practicable Alternative.
We disagree with this assertion based on our analysis of the alternatives considered by the
District, of the limited information provided by the EPA on their proposed alternative, and input
from the permittee. The EPA did not provide detailed information on the new alternative.
Rather, a boundary line was provided with no supporting information to warrant reopening the
NEPA analysis to fully vet the alternative with the public. The EPA proposal appears to allow
for significantly less ore extraction than any of the previously examined alternatives based upon
its area, many of which were dismissed as not practicable from a cost standpoint. Furthermore,
the permittee evaluated the cost of ore that would be lost to them with this alternative at
$442,680,000 (70,000,000 short tons of ore); a cost that was not factored into the cost model for
this alternative. Finally, there was no mention by the EPA about a reduction in the overall
comprehensive mitigation package commensurate with the decreased impact areas, leading to the
supposition that there is an expectation that the current comprehensive compensatory mitigation
package for the proposed project would be required for the EPA alternative. We believe this is
unreasonable.
The District fully considered alternatives, performed a rigorous and valid economics analysis,
and worked diligently with the permittee to avoid and minimize direct impacts to aquatic
resources to the maximum extent practicable while still achieving the project purpose.
6. OPTIONS: The MOA with EPA provides three basic options:
a. Proceed with Final Action. ASA(CW) would inform the District Engineer to proceed
with final action on the permit decision;
14
b. Proceed Based on Case Specific Policy Guidance. ASA(CW) would inform the
District Engineer to proceed with final action in accordance with case specific policy
guidance; or
c. Elevate the Decision. ASA(CW) would elevate the permit decision to the MSC,
HQUSACE, or the ASA(CW) to review the case and make the final permit decision in
accordance with 33 CFR 325.8 or provide case specific guidance back to the District.
7. HQUSACE DECISION AND RECOMMENDATION: Based on this analysis, the case
specific options are as follows:
a. Proceed with Final Action. Selection of this option is contingent on a determination
that there are not substantial unacceptable impacts to aquatic resources of national importance as
a result of the District's proposed permit decision.
b. Proceed Based on Case Specific Policy Guidance. Selection of this option also
requires a determination that there are not substantial unacceptable impacts to aquatic resources
of national importance as a result of the District's proposed permit decision, but further
recognizes that policy guidance may be necessary to ensure that the decision is appropriate. Our
analysis supports selection of this option; therefore, we recommend that the District Commander
proceed with the permit decision following the addition of the following special condition to the
permit,
"Wetland Avoidance/Minimization Areas: The Permittee shall avoid the remaining
acre(s) of onsite wetlands and waters (Attachment /as detailed on Drawings
throughof__). These natural wetland areas and streams were avoided as part of the
permit application review process and therefore will not be disturbed by any dredging,
filling, mechanized land clearing, mining, agricultural activities, or other construction
work whatsoever. The Corps reserves the right to deny review of any requests for future
impacts to these natural wetland and stream areas."
In addition, the draft Record of Decision must be revised to clearly explain the functions being
affected at each impact area (wedand/open water and stream) and provide an explanation of
where and how, both quantitatively and qualitatively, those functions are being replaced within
the comprehensive mitigation package. Using tables within the text of the document to represent
this data would be helpful to the reader.
c. Elevate the Decision. This option requires a determination that there would be
substantial and unacceptable impacts to aquatic resources of national importance as a result of
the proposed permit or that the permit review/decision should be made at a higher level in the
organization. Our analysis does not support this determination and therefore do not suggest this
action is required.
8. CONCLUSION AND RECOMMENDATION: We do not believe the aquatic resources
within the project area, either individually or cumulatively, qualify as an ARNI. Furthermore,
we do not believe the proposed project to be permitted would cause substantial and unacceptable
15
adverse impacts to the aquatic environment. Moreover, we believe the District's decision shows
sound application of regulation and existing policy to reach a reasonable decision that is
appropriately mitigated. The effort the District put forth to minimize impacts to the maximum
extent practicable, and offset unavoidable impacts via compensatory mitigation, is clear.
Therefore, following the addition of the special condition included above and revision of the
Record of Decision, we recommend the District Engineer proceed with the permit decision.
C
16
Mcmillan, Ian
From: Kim Williams [[e-mail]]
Sent: Thursday, May 07, 2009 7:24 AM
To: [e-mail]
Cc: Korenek CIV Martin G
Subject: p-031 b; dwq project #: 09-0491
Hi Ian
I just received your letter for the P-031 B 401 WQC application that states we need to submit an additional check for $330.
1 just wanted to confirm that this is correct. Total impacts for the project are 0.698 acres of wetlands (all temporary). In
addition, 3.42 acres of wetlands will be converted from forested to herbaceous in the mowed utility corridor, but these
wetlands will not technically be impacted. The Corps requires that we provide mitigation for these vegetative conversions,
so we noted it in the application. But since the actual impacts are less than one acre, shouldn't the application fee be
$240?
Thanks for your help!
Kim Williams
Land Management Group, Inc.
P.O. Box 2522
Wilmington, NC 28402
Phone: [phone]
Fax: [phone]
ATTACHMENT,2 TO RECORD OF DECISION
ACTION ID 200110096-PCS Phosphate
PROPOSED PERMIT SPECIAL CONDITIONS
This Permit authorizes impacts associated with the modified Alternative L mining boundary
depicted on the attached figures titled PCS Phosphate Mine Continuation, for the Bonnerton,
NCPC and S33 Tracts, dated January 6, 2009. This includes impacts to 3,972 acres of Waters of
the US included in the Modified 401 Water Quality Certification No 3771 issued by the NC
Division of Water Quality on 15 January 2009.
This Permit. also provisionally authorizes impacts to 4.98 acres of Waters of the US associated
with the relocation of NC Highway, 306 as depicted on the attached figure titled PCS Phosphate
Mine Continuation, for NCPC dated January 6, 2009. Authorization of this 4.98 acre impact is
provisional upon receipt of a 401 Water Quality Certification from the NC Division of Water
Quality and approval from the NC Division of Coastal Management in the form of either a
Coastal Zone Consistency Determination or a Coastal Area Management Act Permit.
MINING
A) This permit authorizes mining and mine related impacts as described fully in the FEIS within
the boundary depicted in the attached maps labeled "Modified Alt L - NCPC Proposed
Impact Boundary", "Modified Alt L - Bonnerton Proposed Impact Boundary" and "Modified
Alt L - South of 33 Proposed Impact Boundary", as presented January 6, 2009. All work
authorized by this permit must be performed in strict compliance with these attached plans,
which are a part of this permit. Any modification to these plans must be approved by the US
Army Corps of Engineers (USACE) prior to implementation.
B) Within 6-months of the issuance of this permit, the Permittee must demarcate with permanent
monuments and establish with GPS coordinates, the outer limits of disturbance on all
creeks/drainages, etc. This must be reviewed and approved by the U.S. Army Corps of
Engineers. This will facilitate compliance monitoring by establishing long-term reference
points.
C) Except as authorized by this permit or any USACE approved modification to this permit, no
excavation, fill or mechanized land-clearing activities shall take place at any time in the
construction or maintenance of this project, within waters or wetlands. This permit does not
authorize temporary placement or double handling of excavated or fill material within waters
or wetlands outside the permitted area. This prohibition applies to all borrow and fill
activities connected with this project.
D) Except as specified in the plans attached to this permit, no excavation, fill or mechanized
land-clearing activities shall take place at any time in the construction or maintenance of this
project, in such a manner as to impair normal flows and circulation patterns within waters or
wetlands or to reduce the reach of waters or wetlands.
E) Figure 1 depicts approximate timing of the requirement for major pre- mining, land
manipulation and clearing impacts. These yearly figures are estimates. Actual timing and
area may be in part determined by several factors including but not limited to site and
equipment constraints, weather, and economics. However, to ensure that temporal losses are
minimized to the extent practicable, the applicant shall not undertake major land-clearing
and/or land manipulating activities within any area sooner than 1 year prior to the dates
.indicated on this figure. For example, major landclearing and manipulation activities within
the block labeled 2012-2013 may not begin any sooner than January 1, 2011.
RECLAMATION
F) The applicant will undertake full reclamation of all areas mined under this authorization as
described in Section 4.3 of the -EIS: This includes reestablishment of varied topography and
drainage systems. Figure 2. indicates the required completion date for the capping and
successful vegetation of mine reclamation areas. To demonstrate adherence.to this schedule,
the applicant will submit to the Corps an annual report detailing all reclamation efforts
complete within the previous year and indicating the degree of completeness of each
reclamation area.
G) The Permittee shall cap all mined areas that are reclaimed with the gypsum-clay blend
process. The goal of the cap will be a minimum Moot thick cap of overburden material
(similar to background soils from the region) over 100% of the blend areas. Minimal
acceptable performance standards in achieving this cap are as follows: 70% of the total
surface area with a minimum of 3-foot cap; 25% of the total surface area with a minimum of
2-foot cap; 5% of the total surface area unspecified. Upon completion of capping of any
area, the permittee will submit final cap depth and coverage information to the Corps.
H) Following successful completion of the capping requirements, the permittee will submit as-
built topographical surveys for the reclamation areas. This survey shall include an.
explanation of'site development that will minimize erosion, eliminate contaminant
transportation from the clay/gypsum blend through the stream channel, and facilitate the
development of a mature vegetated riparian buffer. This survey shall also include
information on surface water flows within and from the reclamation area.
I) To minimize temporal impacts and accelerate-the return of watershed functions within the
reclamation areas, the applicant will to the extent appropriate and practicable apply an
average of 1-foot (no less than 6 inches in any location) of topsoil cover to the reclaimed
areas utilizing, the topsoil removed prior to site mining. This topsoil addition should be
concentrated in areas closes to points where surface waters will eventually exit the reclaimed
area into the surrounding watershed.
J) To the extent appropriate and practicable, upland portions of the reclamation area shall be
replanted, in longleaf pine (Pines palustris) and wetland areas shall be replanted-in bald
cypress (Taxodium distichum) and/or Atlantic white cedar (Chamaecyparis thyoides) if
Atlantic white cedar is shown to do well on the reclamation sites. It is suggested that the
applicant work with the Corps, the USFWS and any other interested parties to determine
growth and survivability of these and other species utilizing areas currently being reclaimed
under the previous permit action
K) To ensure satisfactory reclamation has occurred PCS shall submit to the Corps a final
as-built plan detailing topographic information and vegetation success within the
reclaimed areas. Any deviation from the reclamation schedule will be addressed in
these reports and the report shall include an explanation for the deviation and
proposed remedial action.
MITIGATION
L) Compensatory mitigation identified in the document entitled "Compensatory Section
404/401 Mitigation Plan: Comprehensive Approach" as presented in Appendix I of
the FEIS shall be accomplished pursuant to that Plan and/or any subsequent Corps
approved modification or amendment. Construction and monitoring of each site shall
be conducted according to the schedule presented in Table 1 of the Record of
Decision.
M) Within one year of the issuance of this permit, the permittee shall cause to be
recorded a conservation instrument acceptable to the Corps for the permanent
preservation of the area identified for preservation in the "South Creek Corridor"
plan.
N) Table 2 lists the impacts as they would occur during 2-year tinieframes. By Nov. 1St
of year preceding the impact, PCS shall submit to the Corps a mitigation ledger
demonstrating that.all mitigation work is complete as described in the mitigation plan
and pursuant to identified timetable. This report will be used to determine whether
sufficient, mitigation is available for impacts occurring over the next 2 year
timeframe. For Example, by November 1 St 2009, PCS shall submit a ledger
demonstrating that sufficient mitigation for impacts occurring during the 2010 - 2011
timeframe (526.56 ac) is available."
O) The Permittee shall submit yearly monitoring reports for each mitigation site.
Monitoring reports will be submitted by January 31 of the year following the
monitoring. Monitoring will continue until such time as the Corps deems the
mitigation site successful and agrees that monitoring may be' discontinued. This will
generally occur after sufficient monitoring demonstrating 5 consecutive years of site
success.
P) Once compensatory mitigation sites have been deemed successful and the Corps has
agreed in writing that monitoring may cease, the permittee shall, within one year of
the date of that correspondence, cause to be recorded an acceptable conservation
instrument ensuring the permanent preservation of all mitigation sites.
MONITORING
Q) As required by the State Water Quality Certification, the applicant will work.with the
corps and the NC Division of Water Quality to establish a monitoring plan for
groundwater in and around mine and reclamation areas. At a minimum,. this plan
.shall include sufficient monitoring within and surrounding the reclamation areas to
ensure that heavy metal/toxic pollutants including cadmium are not entering the
groundwater. It is suggested that this monitoring commence with weekly samples for a
period of 5 years to generate an acceptable baseline. After 5 years, monthly monitoring is
acceptable. Yearly results of this monitoring shall be reported to the Corps and
NCDWQ no later than January 31 of the year following data collection. The
applicant and/or the Corps will make these reports available in whole or in summary
to any interested party. If increases in the levels of any sampled substance are
observed for more than 1 sampling occurrence in any given year, or for more than 1
year, the applicant shall include in the yearly report, a plan for mitigating the effect or
satisfactory justification as to why no action is necessary. If the Corps, in
consultation with other agencies, including but not limited to NCDWQ and EPA,
determines that the current reclamation practices are causing an unacceptable adverse
impact to groundwater, the DE may modify, suspend or revoke the permit.
R) Within 1 year of the issuance of this permit the Permittee will submit to the Corps a
remediation strategy in the event heavy metal contamination of groundwater or
surface tributaries that drain or are adjacent to mined areas occurs. That strategy will
be made available for public review.
S) In concert with the monitoring requirements contained in the Water Quality
Certification, PCS shall develop and implement a plan of study to address the effects
of the reduction in headwater wetlands on the utilization of Porters Creek, Tooley
Creek, Jacobs Creek, Drinkwater Creek, and Jacks Creek as nursery areas by resident
fish and appropriate invertebrate species. The applicant shall coordinate with all
appropriate resource agencies including but not limited to NMFS, USFWS, NCWRC,
NCDMF, and the appropriate permitting agencies including NCDWQ, NCDCM,
NCDLR and the Corps in the development of this plan. This plan should be
submitted to the Corps and NCDWQ for approval within 6 months of this issuance of
this permit. The plan shall identify reference creeks (at least four - the usefulness of
Muddy Creek as a reference creek should be reevaluated, not assumed); sampling
stations, schedules, and methods; laboratory methods; data management and analysis;
and quality control and quality assurance procedures. At a minimum, the plan shall
address the following issues:
1) Has mining altered the amount or timing of water flows within the creeks? Data
collection may include:
i) Continuous water level recorders to measure flow
ii) Rain gauges to measure local water input
iii) Groundwater wells to measure input to the creeks
iv) Semi-continuous salinity monitoring
v) Periodic DO monitoring (continuously monitored for several days at strategic
times of year)
2) Has mining altered the geomorphic or vegetative character of the creeks? Data
collection may include:
i) Annual aerial photography to determine creek position, length, width,
sinuosity
ii) Annual cross sectional surveys of each creek at established locations
iii) Annual sediment characterization
iv) Annual vegetation surveys along creeks
v) Spring and fall sediment chlorophylls or organic content in vegetation zone:
vi) Spring and fall location of flocculation zones with each creek.
3) Has mining alteredthe forage base of the creeks? Data collection may include:
i) Spring and fall benthic cores to sample macroinfauna.
ii) Spring and fall benthic grabs focused upon bivalves,'such as Rangia sp.
iii) Periodic sampling for pelagic species such as grass shrimp, blue crabs, and
small forage fish. Sampling gears would be chosen to reflect ontogenetic
shifts in creek usage.
4) Has mining altered the use of the creeks by managed fish? Data collection may
include periodic sampling for species managed under the Magnuson-Stevens
Fishery Conservation Management Act. Sampling would occur during
appropriate times of year and gears would be chosen to reflect ontogenetic shifts
in creek usage.
5) Do creek sediments include contaminants at levels that could impact fish or .
invertebrates? Data collection may include annual sediment and water column
sampling for metals, including.cadmium, mercury, silver, copper, and arsenic. If
elevated levels are detected, the availability and uptake by appropriate aquatic
species (e.g., Rangia sp., blue crabs) should measured using appropriate bioassay
techniques (annual)
T) Monitoring under the plan referenced in condition 18 above shall commence
immediately upon the plans approval by the Corps and NCDWQ. Monitoring shall
continue for 10 years following the completion of all reclamation work•within the
headwaters of the subject creeks unless the Corps, in consultation with the
appropriate resource agencies agrees that monitoring can be discontinued. Yearly
results of this monitoring shall be reported to the Corps and NCDWQ no later than
January 31 of the year following data collection. The.applicant and/or the Corps will
make these reports available in whole or in summary to any interested party.
ADAPTIVE MANAGEMENT
U) PCS will work with the Corps to establish an independent panel of qualified persons
to annually evaluate whether direct and indirect impacts from mining and benefits
from the compensatory mitigation are in accordance with expectations at the time of
permitting. All monitoring reports mentioned in the above mining, reclamation,
mitigation and monitoring conditions will be supplied to the members of this panel at
the times specified in the respective conditions. The applicant shall set a date during
March of each year to convene.this panel and notify the members of this panel no
later than January 31 of the meeting date. By March 31, the panel shall provide the
Wilmington District and PCS with any input on the collected data and analysis. At
five year intervals beginning from the date of permit issuance, the panel shall review
the monitoring methods, sampling locations, parameters analyzed, and other elements.
of monitoring protocol to determine if modifications to the plan are appropriate. The
Wilmington District will consider this information and comments from resource
agencies to determine if corrective actions or permit modifications are needed. If the
panel concludes and the Wilmington District c agrees that the mine expansion has
caused significant adverse environmental impacts that are not offset by mitigation,
then corrective action shall be taken. All data, reports, and presentations reviewed by
the panel shall be made available to the public.
MISCELLANEOUS
V) The permittee shall advise the Corps in writing prior to beginning the work
authorized by this permit and again-upon completion of the work authorized by this
permit.
W) The permittee shall require its contractors and/or agents to comply with the terms and
conditions of this permit in the construction and maintenance of this project, and. shall
provide each of its contractors and/or agents associated with the construction or
maintenance of this project with a copy of this permit. A copy of this permit,
including all conditions, -shall be available at the project site during construction and
maintenance of this project.
X) The permittee shall employ all sedimentation and erosion control measures necessary
to prevent an increase in sedimentation or turbidity within waters and wetlands
outside the permit area. This shall include, but is not limited to, the immediate
installation of silt fencing or similar appropriate devices around all areas subject to
soil disturbance or the movement of earthen fill, and the immediate stabilization of all
disturbed areas. Additionally, the project must remain in full compliance with all
aspects of the Sedimentation Pollution Control Act of 1973 (North Carolina General
Statutes Chapter 113A Article 4).
Y) The permittee, upon receipt of a notice of revocation of this permit or upon its
expiration before completion of the work will, without expense to the United States
and in such time and manner as the Secretary of the Army or his authorized
representative may direct, restore the water or wetland to its pre-project condition.
Z) Violations of these conditions or violations of Section 404 of the Clean Water Act or
Section 10 of the Rivers and Harbors Act must be reported in writing to the Wilmington
District U.S. Army Corps of Engineers within 24 hours of the permittee's discovery of
the violation.