20080868 Ver 2_Court Case Correspondence_20090420

Dorney, John
From: Payne, John [[e-mail]]
Sent: Monday, April 20, 2009 4:48 PM
To: [e-mail]; [e-mail]
Subject: RE: Gregory
Thanks Bill.
John
From: [e-mail] [mailto:[e-mail]]
Sent: Monday, April 20, 2009 3:33 PM
To: [e-mail]; Payne, John
Subject: Gregory
At the meeting in Aurora on 4/17/09 with EPA and the Corps, we distributed a summary of Dr.
Gregory's findings, which I sent to you on Friday for forwarding to NHP. Dr. Gregory has informed me
that in his haste to get his summary to us in time for our 4/17/09 meeting, he failed to catch an error in
that summary (i.e., several references to swamp white oaks): the three indicator species used by
NHP for NRWHF include swamp chestnut oak, not swamp white oak. His field observations and
findings were based on application of the correct criteria, and his conclusions and opinions are
therefore unaffected. His final report should be available later this week. Please forward this
correction to NHP as well. Thanks
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WATERSHED HYDROLOGY
CONSULTANTS
WatHydro
Assessing and Advancing Watershed Management
6301 Deerview Drive, Raleigh, NC 27606-8800 919-414-0993 [e-mail]
April 16, 2009
William Cary, Esquire
Brooks, Pierce, McClendon, Humphrey & Leonard, L.L.P.
PO Box 26000
Greensboro, NC 27420
Reference: Rapid Forest Assessment: Nonriverine Wet Hardwood Stands on the Bonnerton Tract, PCS
Phosphate Co., Inc.
Dear Mr. Cary:
My detailed report on the referenced assessment is in progress. However, to facilitate discussions
with the U. S. Army Corps of Engineers at the scheduled site visit tomorrow, I have prepared a brief
summary of my findings and conclusions.
The purpose of the rapid forest assessment reported here is to provide qualitative and limited
quantitative description of three wetland mixed hardwood stands located on the Bonnerton Tract owned
by PCS Phosphate Co., Inc., Aurora, NC (PCS). The three stands are the focus of ongoing discussions
between staff of PCS and staff of the U. S. Environmental Protection Agency (EPA), U. S. Army Corps
of Engineers (Corps), and N.C. Division of Water Quality (DWQ) regarding the forest type and the
quality of those stands and their fate in the permitting process for expansion of phosphate mining into the
Bonnerton Tract.
The three forest stands that are the subject of this report are denoted as vegetation type 7 on the
drawing labeled: Modified Alt L - Bonnerton Proposed Impact Boundary 12/31/08 - Biotic
Communities Impact. The three stands are also denoted as Significant Natural Heritage Areas on the
aerial photo with property boundaries labeled as : Exhibit A, Non-Riverine Wet Hardwood Forest. For
reference purposes, the three stands shall be referred to as: (1) eastern stand - easternmost of the three
stands that contains the origin of Porter's Creek and consists mostly of the W. M. Gray and W. B. Gray
tracts, (2) western stand - westernmost of the three stands at the intersection of NC 306 and SR 1958 and
that consists mostly of the B. B. Ross and T. W. Bonner tracts, and (3) northern stand - northernmost of
the three stands that lies west of the open field with air strip.
1. General Observations about the forest type "nonriverine wet hardwood forest"
A. The forested vegetation type, nonriverine wet hardwood forest, was first named and described by
Schafale and Weakley (1990) as an element of a classification system for the natural vegetation
communities of North Carolina.
B. Many wetland forest stands that have been inventoried by the N.C. Natural Heritage Program
(NHP) and labeled as nonriverine wet hardwood forest are not a "natural" area, as defined in NHP
or EPA/Corps Guidance but instead are areas previously farmed/harvested/otherwise affected by
human activity. In such forest stands, the current stand structure and tree species makeup is
strongly influenced by the impacts of the past anthropogenic disturbances.
2. The nonriverine wet hardwood forest type is defined in Schafale and Weakley (1990) as "dominated"
by 3 species, swamp white oak, laurel oak, and cherrybark oak in addition to several other tree
species.
A. In other NHP writings, the nonriverine wet hardwood forest type is clearly defined as applying
only to stands dominated by the three key indicator species swamp white oak, laurel oak, and
cherrybark oak, e.g. Schafale 2008.
B. NHP does not define "dominated"
C. In common forestry practice and other guidance documents, "dominated" by a tree species or
combination of species typically means the single tree species or the combination of two or more
species makes up greater than 50% of basal area of the stand.
Nonriverine wet hardwood forest in EPA/Corps guidance is defined as "with vegetation dominated
(greater than 50% of basal area per acre) by swamp chestnut oak, cherrybark oak, or laurel oak alone
or in combination". That same guidance also states that nonriverine wet hardwood forests are "rare,
high quality wet forests, with mature vegetation". "Mature vegetation" is not specifically defined but
for hardwood forests, foresters consider mature trees to be those that are at least 75 years old and > 20
in dbh. For nonriverine wet hardwood forests, "high quality" also refers to extent of dominance of the
three indicator species, swamp white oak, laurel oak, and cherrybark oak.
4. Nonriverine wet hardwood forests typically occur on poorly drained soils that are on the dry end of
the range of wetland hydrology and are adapted to but not dependent on, wet conditions; can
generally withstand long dry periods.
5. Initial Assessment
A. There are three relatively distinct forested tracts on the Bonnerton Tract that have been labeled by
NHP as nonriverine wet hardwood forest: Eastern, Western and Northern
B. Cherrybark oak is conspicuously absent in all three tracts; this absence alone prevents
characterizing the tracts as among the best nonriverine wet hardwood forests.
6. Eastern Tract
A. best quality of the three
B. approx. 22% of basal area in two of the indicator species, swamp white oak and laurel oak
C. Many of the swamp white oak and laurel oak trees are relatively large, approx. 12"; some 18-20";
a few >20"
D. no distinct 2 or 3 layer canopy
Western Tract
A. poor quality
B. approx. 5% of basal area in two of the indicator species, swamp white oak and laurel oak., very
patchy distribution of the older trees with a second canopy layer of younger trees, the result of
selective harvesting, likely about 30 years ago
C. This stand also contains a number of relatively large southern red oaks, a tree adapted to well
drained soils that typically does not occur in wetlands
2
8. Northern Tract
A. very poor quality
B. approximately 20% of basal area in two of the indicator species, swamp white oak and laurel oak
C. high density harvest in very recent past
D. large openings among the few older (often low quality) trees filling in with young, mostly
"undesirable" species
9. Soils
A. generally Tomotley fine sandy loam
B. one area of higher and drier soils in Western Tract
C. one depressional area in Western Tract that has evidence of long duration ponding; soils have
higher organic carbon content in the surface zone that elsewhere on the tract
D. all boreholes had positive hydric soil indicator, though on drier end of wetland hydrology and
relatively low organic carbon content in the A horizon
10. Hydrology
A. lower than expected water table (not yet recovered from drought)
B. no saturated zone in upper 30" until proximate to Suffolk Scarp (lateral or upward hydraulic head
of groundwater discharge from uplands to the west)
C. depressional area in Western Tract had extensive areas of ponded water
D. except for depressional area, no evidence of surface inundation in any of the three Tracts
11. Conclusions and Opinions
A. Conclusion: the forest stands in none of the three Tracts meet the definitions of nonriverine wet
hardwood forest in Schafale and Weakley (1990) and in EPA/Corps guidance.
B. Opinion: regardless of the label, the three Tracts (singly) and the three Tracts collectively are not
"significant' examples of the nonriverine wet hardwood forest type as contemplated by NHP.
While portions of the Eastern Tract are good to very good quality, none of the Tracts are
"exemplary," "unique," or "outstanding."
C. Opinion: The bifurcation of the Western and Eastern Tracts by the proposed mining corridor
should not negatively affect either Tract.
Literature Cited
Schafale, M. P. and A. S. Weakley. 1990. Classification of the natural communities of North Carolina.
Third approximation. North Carolina Natural Heritage Program, N.C. Department of
Environment, Health, and Natural Resources, Raleigh, NC.
Schafale, M. P. 2008. Nonriverine wet hardwood forests in North Carolina: Status and Trends.
Unpublished report. North Carolina Natural Heritage Program, N.C. Department of
Environment and Natural Resources, Raleigh, NC.
Cordially,
James D. M'm'l°,g,.o , ow?h
Hy*do Y Consultants LIC,-amai1-
Gregory DO20 6125735°
James D. Gregory