Court Decision Vacating Mine NPDES Permit Creates Uncertainty Regarding Compliance with Biological Integrity Water Quality Standard.
By Ali Nelson
The Carteret County Superior Court’s decision vacating a National Pollutant Discharge Elimination System (NPDES) permit issued by the North Carolina Department of Environmental Quality Division of Water Resources (DWR) will change how that agency and likely others assess whether a proposed discharge will comply with applicable water quality standards, but what assessment will be sufficient going forward is not yet clear.
The vacated permit would have allowed Martin Marietta Materials Inc.’s proposed Vanceboro Quarry in Beaufort County, N.C., to discharge up to 12 million gal. per day of stormwater and groundwater into Blounts Creek. The permit was first issued in July 2013, and has been the subject of administrative and judicial challenges since that time.
A 2015 decision by an Administrative Law Judge (ALJ) in the Office of Administrative Hearings found that Petitioners Sound Rivers Inc. and North Carolina Coastal Federation, Inc. had failed to show that they were “persons aggrieved,” but the Beaufort County Superior Court reversed and required a full plenary hearing on DWR’s permitting decision.
Following that hearing, the ALJ upheld the permit on the grounds that the Petitioners had failed to provide that DWR’s issuance of the permit had exceeded its authority or jurisdiction, acted erroneously, failed to use proper procedure, acted arbitrarily or capriciously, or failed to act as required by law or rule. Petitioners then sought review of the ALJ’s decision by the Carteret County Superior Court.
On appeal, the Petitioners asked the Superior Court to decide that DWR improperly issued the permit because its imposition of conditions did not “reasonably ensure compliance” with three water quality standards and regulations: (1) the “swamp waters” supplemental classification and antidegradation rule; (2) the water quality standard for pH; and (3) the water quality standard for biological integrity.
The Superior Court’s ruling on the “swamp waters” supplemental classification makes it clear that waters with such a supplemental classification are not entitled to additional protection of a “special use” or “characteristic.”
Rather, the only legal effect of the “swamp waters” classification is to make the water quality standards for pH and dissolved oxygen less stringent. In so holding, the Superior Court reasoned that the plain language of the antidegradation rule and the rules governing the swamp waters supplemental classification did not protect uses or characteristics, and noted that the water quality rules provided additional protections for “High Quality Waters” or “Outstanding Resource Waters” but no such classification for Blounts Creek had been sought.
In addition, the Court’s ruling on the water quality standard for pH clearly establishes that no site-specific analysis of pH in receiving waters is required by the standard requiring pH to be “normal for waters in the area, which generally shall range between 6.0 and 9.0 except that swamp waters may have a pH as low as 4.3 if it is the result of natural conditions.” Rather, it held that site-specific standards “are the exception, not the norm, and are explicitly set forth where they exist.”
However, the Court’s ruling on the water quality standard for biological integrity creates some uncertainly regarding the assessment required by DWR to establish that a discharge will ensure that receiving waters are suitable for maintenance of “biological integrity,” which is defined by rule as “the ability of an aquatic ecosystem to support and maintain a balanced an indigenous community of organisms having species composition, diversity, population densities and functional organization similar to that of reference conditions.”
Although “species composition,” “diversity,” “population densities,” and “functional organization” are not defined by DWR’s rules, an expert in the fields of fisheries ecology, fisheries management, and fish sampling methods and analysis testified that these terms mean the number of species in a system; the number of species present and the relative abundance of each species; how many individuals are in a defined area; and the organization of the biological community, respectively.
The Court determined that these terms must be given meaning, and that the referenced conditions “must be evaluated on the basis of and as defined in those terms.” It then held that DWR staff did not measure any of the biological integrity metrics in Blounts Creek, and thus “DWR failed to determine the base line metrics required … and could not, therefore, ensure reasonable compliance with the biological integrity standard.”
Some assessment is therefore needed – but how much? The Court’s ruling requires DWR to do more – but for the permit at issue, DWR admittedly did no evaluation, and a representative of DWR testified that he had “never really heard of” a “biological integrity analysis.” Some assessment of baseline is required, but it is not clear whether a site-by-site assessment is needed or whether establishing baselines categorically will be sufficient. That question may not be answered until DWR issues another permit requiring it to establish compliance with the standard.
Although this decision relates to the review DWR must complete to ensure that an authorized discharge will comply with North Carolina’s water quality standard for biological integrity, the decision’s impacts could be significantly more far-reaching.
State agencies administering NPDES permit programs do so pursuant to a delegation of authority from the U.S. Environmental Protection Agency, which must ensure that state programs will comply with the Clean Water Act – the stated objective of which is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
Watch out for similar challenges to permits issued in other states on the grounds that the permitting authorities did not undertake the level of assessment necessary to ensure compliance with water quality standards requiring maintenance of biological integrity.
With that in mind, companies developing mines or other proposed activities that require an NPDES discharge permit would be well-advised to consider working with permitting authorities to assure that compliance with the state’s biological integrity standard is thoroughly assessed and documented.
Ali Nelson is senior counsel at Husch Blackwell LLP. As a member of the firm’s Energy & Natural Resources team, she has experience advising companies in connection with mining and mineral extraction, regulated transmission projects, coal-fired power plants, and renewable and clean energy projects. [email protected], 303-749-7263.