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Issue link: https://rock.epubxp.com/i/945171
78 • ROCK products • March 2018 www.rockproducts.com LAW 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 commu- nity, respectively. The Court determined that these terms must be given meaning, and that the referenced conditions "must be eval- uated 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." Assessment 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 com- plete 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. Envi- ronmental 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 com- pliance 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 permit- ting authorities to assure that compliance with the state's biological integrity standard is thoroughly assessed and documented.