15A NCAC 02H .0125       PERMIT REQUIREMENTS FOR PEAT MINING

(a)  Policy.  Studies on peat mining in North Carolina have identified effects that could adversely impact the existing uses of the waters of the state.  As there is no experience with peat mining in similar ecological systems, the effectiveness of proposed control and mitigation measures has not been demonstrated and must be estimated by using methods of analyses that are not well tested by experience.  Many of the impacts of large‑scale peat mining and subsequent reclamation may be irreversible and may not be realized until years or decades after peat mining is initiated.  In addition, the estuarine/wetland systems have intricate interconnections which are not well understood at present and which are essential to the viability of the very valuable public estuarine resources. Recognizing the unknowns associated with peat mining, this Rule specifies procedures and requirements that are necessary to ensure compliance with the water quality standards and protection of the uses of the waters affected by peat mining operations.  The water quality standards and uses of the waters shall be protected during all phases of a peat mining project, and the cumulative impacts of other peat mining or land uses shall be considered in the evaluation of each permit.

(b)  Applicability.  The requirements of this Rule are to be met during mining, reclamation, and, to the extent necessary to protect water quality standards, after reclamation for all peat mining operations that could contribute significant increases in pollution (including freshwater) into estuarine nursery areas, or any other area, identified by the Commission on a case‑by‑case basis when it is determined that potential exists for significant adverse effects on water quality and existing uses.  Estuarine nursery areas are areas that function as important breeding or development grounds for estuarine or marine fishes, crustaceans or molluscs.  These areas include:

(1)           all designated Primary Nursery Areas,

(2)           all designated Secondary Nursery Areas,

(3)           all anadromous fish spawning grounds and nursery areas identified in publications of the N.C. Division of Marine Fisheries, and

(4)           all other nursery areas designated or otherwise identified by the Marine Fisheries Commission, or the Wildlife Resources Commission.

(c)  Drainage:

(1)           Canals draining peat mines shall not outlet directly into estuarine nursery areas and shall be directed towards appropriate freshwater bodies if possible.

(2)           If the drainage could contribute significant flow, directly or indirectly, into estuarine nursery areas or other areas determined by the Commission to require this protection, the project must be designed such that the total annual water released from the site would not exceed that expected from the site covered with mature natural vegetation.  Mature natural vegetation is the assemblage of indigenous plants expected to occur on a proposed project site if it were allowed to develop undisturbed.  This expectation may include periodic disturbance by fire at natural frequencies and intensities.  Also, the peak flows from the site shall be controlled by the use of basins or other management techniques which moderate release rates so that flows do  not exceed those expected from the site undrained and with mature natural vegetation.  For purposes of this Rule, undrained is the state of the proposed project site without structures or features imposed by human agency intended to facilitate removal of surface or subsurface water.  In modelling or other analysis required by this Rule, major canals existing at the time of rule adoption, at a density no greater than one per mile by one per 1/2 mile (or 320 acre blocks), may be allowed at the discretion of the Commission when it is determined that accurate evaluation of "undrained" conditions is not practicable.  Water management systems must be designed to meet these criteria utilizing models or other quantitative methods in accordance with Paragraph (g) of this Rule and considering a wide range of rainfall conditions.  The frequency‑duration distribution for flows leaving the site during and after mining should as much as possible match the distribution that would occur if the site were undrained and covered with mature natural vegetation.

(3)           An initial transition period may be allowed such that the entire permitted mining site comes into compliance with these limitations within four years.   Reduction in runoff volumes must occur at a rate achieving constant yearly improvements as stipulated in the permit, and at no time exceed those expected under conditions existing at the time of permit issuance.

(d)  Nutrients.  The project shall be designed so that nutrient loadings discharged from the site are no greater than would occur if the site were covered with mature natural vegetation.  An initial transition period may be allowed such that the entire permitted mining site comes into compliance within four years, and shows constant yearly improvements in nutrient loadings as outlined in the proposed project plan.  However, in accordance with Rule .0404(c) of this Subchapter, more stringent conditions may be established for nutrient discharges to waters that are excessively eutrophic.

(e)  Sediment.  Best management practices, including settling basins on field ditches, should be utilized to control sediment in drainage waters. The levels of sediment discharged must be predicted for the different stages of the operation and evidence provided that these levels will not adversely affect the uses of the receiving waters.  The deposition of windblown dust into both drainage and adjacent waters and the effects during and after fires must be included in this analysis.  Details on the rate of sediment buildup and the frequency and procedures for removal in the various components for the water control system, including canals and settling basins, must be provided.  Adequate sediment controls must be provided during maintenance and expansion of canals and water control structures.

(f)  Other pollutants. The characteristics of the drainage water leaving the site must be described fully for all phases of the project. Any substances which may be discharged during some phase of the project must be evaluated as part of the application and adequately controlled to comply with the water quality standards and to protect the uses of the waters.  Possible runoff or leachate from storage piles of peat, ash, or other substances on site must be included in this analysis.  Adequate means of disposal of solid wastes must be assured and discussed in the application in order to assure reliable control of pollution from on‑site storage piles.

(g)  Quantitative methods of evaluation.  The design and evaluation of proposed peat mining projects relies on predictive models to an unusual degree since there is no experience with large‑scale peat mining or the effectiveness of pollution control measures in similar situations.  Modelling or quantitative methods of analyses must, at a minimum, meet the following requirements:

(1)           All factors which may affect the quality or quantity of the discharge must be included in the design and evaluation of the water control system, including factors such as very large storm events, sequential storm events, fires, various land uses during different stages of the project, recharge or discharge to the groundwater, and construction, expansion, filling‑in and maintenance of ditches, canals, settling basins, and impoundments;

(2)           The complete assumptions for each analysis or condition must be listed and possible errors and the effects of such errors, including interactions, must be evaluated for each assumption;

(3)           Situations under which the predictions would be inaccurate must be identified and evaluated;

(4)           Conditions under which the proposed water control system would fail to provide adequate controls must be evaluated, including mechanical failures, and descriptions of the storage and flow capacities of all system components along with the intensities and durations of storms which would be expected to exceed the capacity of the various components during each phase of the project.  The impact of such failures on water quality and flows must be evaluated;

(5)           To provide maximum information about the operation of the proposed system under all conditions and to minimize the possibility of error or inapplicable assumptions, various methods of analyses should be utilized, including detailed models using historical rainfall data, as well as methods based on individual design storms and runoff coefficients.

(h)  Wetland or swamp discharges.  While wetlands and swamps are waters of the state and cannot be considered as part of a treatment and disposal system, their assimilative capacity and water storage capabilities may play a role in protecting the uses of downstream waters.  For purposes of this Rule, wetlands are as defined in the federal NPDES regulations in 40 CFR 122.2, as existing on July 1, 1985.  Copies may be obtained from the Director, Division of Environmental Management, Raleigh.  Where available, determinations of wetland status by the U.S. Environmental Protection Agency or the U.S. Army Corps of Engineers may be used in making wetland evaluations.  The Commission may also make determinations of wetland status in defining where water quality standards and uses must be protected.  A discharge to a wetland or swamp must protect the uses of these waters.  The water quality benefits of a wetland filter area should be estimated conservatively.  Detailed information on the size, topography, soils, flows, water depths, channels, vegetation, wildlife resources, uses by wildlife and man, and other characteristics of a proposed filter area must be provided in order to demonstrate that the discharge will flow in the desired direction, that sheet flow and water quality benefits will be maintained over the long‑term, and that water quality and existing uses of the area will not be threatened.  The effects of storms or high water levels on these benefits and characteristics must also be evaluated.  A description of the means of diffusion to provide sheet flow is particularly important.   The terms wildlife and wildlife resources are used as defined in G.S. 113‑129.

(i)  Effects on groundwater.  The impacts of the proposed project and water control system on groundwater must be fully evaluated and found to ensure compliance with Title 15A, Subchapter 2L, Classification and Water Quality Standards Applicable to the Groundwaters of North Carolina. Groundwater monitoring wells may be required to verify compliance with this requirement.

(j)  Effects on adjacent landowners.  The effects of the proposed project on water quality in adjacent lands and nearby wildlife refuges, parks, and other publicly owned lands, must be evaluated.  Hydrologic and other alterations must not threaten the uses in nearby waters.  A brief description of the project and summary of the expected impacts on water quality and uses must be sent to adjacent landowners and a copy attached to the permit application.

(k)  Assurance of continued operation.  As part of the permit application, legal mechanisms must be developed to assure continuous proper long‑term use and operation and maintenance of water control systems during all times when permitted peat mining or reclamation activities are being carried out that could adversely impact the waters of the state and thereafter where no other acceptable options are available to protect water quality.  These mechanisms must include paying for the costs of operating and maintaining the system.  These assurances must be provided by current owners and will be required through all changes in ownership  during this time.  Assurances of implementation of these mechanisms prior to the initiation of mining activity shall be a condition of the permit.

(l)  Abandonment.  The consequences of abandonment of the drainage and water control systems must be fully described for each phase of the project and particularly after the reclamation plan is implemented.  If the area of the project is abandoned at any time, the drainage discharges must come into compliance with the design requirements of this Rule within four years or on a schedule approved by the Commission such that pollution never exceeds levels existing at the start of the project.  The analyses must verify that the mining bond and reclamation plan after the bond is released are both adequate to meet this condition.  Further, it must be determined whether the mined area would flood, and if so, the depth of the water and points and rates of overflow must be described along with the impacts on adjacent lands and waters.

(m)  Characteristics of treatment systems.  If an impoundment lagoon, canal or ditch does not meet all of the characteristics listed in Subparagraphs (1) through (4) of this Paragraph, the water in the structure may be considered classified waters of the state.  Standards are not required to be met in waste treatment systems.  However, if public uses were established, such as fishing, the Commission may determine that continual protection of that use be achieved which could preclude some benefits desired as a waste treatment system.  The characteristics of a treatment system are that the structure:

(1)           is manmade and is utilized primarily for water management and water pollution control;

(2)           is entirely on a single tract of privately owned land with the owner or owners controlling the inflows and outflows;

(3)           has controls at the outlet(s) so water may flow out, but under normal hydrological conditions not into the structure or facility through the outlet(s);

(4)           is not an integral part of the ecosystem of the receiving waters so that if the operation causing the pollution is discontinued, the structure or facility can be removed from use without adversely impacting the hydrology or water quality of the receiving waters.

(n)  Identification of outlet points.  Water in treatment systems need not meet the water quality standards nor maintain public uses.  Waters downstream from an outlet point must be protected to meet the standards and public uses.  Canals are generally classified waters of the state, either as named stream segments in the Schedule of Classifications or as unnamed tributaries.  The following factors can be used as guidance in determining the outlet point:

(1)           The outlet point must be entirely on the property of the permit applicant;

(2)           The outlet point must be selected so that the owner can block, obstruct, or open the outlet point:

(A)          without removing any established uses of the waters including navigation, fishing, and wildlife, and

(B)          without adversely affecting drainage by other landowners;

(3)           Once a point has been designated as an outlet, the receiving waters cannot be obstructed by any landowner without approval and a permit modification by the Commission;

(4)           Outlet designations may require declassifications.

(o)  Application Information.   The permit application must contain full information to evaluate and assure compliance with the requirements of this Rule, including maps, diagrams, calculations, assumptions, engineering specifications, and any proposed deed restrictions, easements, contracts or other legal means of assuring long‑term compliance.  Applications for all permits required by G.S. 143‑215.1 for the project site, including permits for waste disposal for sanitary facilities, on‑site power plants, or energy conversion facilities, should be submitted together where possible in order to evaluate the full impacts of the proposed project.

 

History Note:        Authority G.S. 143‑214.1; 143‑215(a); 143‑215(b); 143‑215.1; 143‑215.3(a)(1);

Eff. September 1, 1986.