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www.rockproducts.com ROCK products • March 2018 • 77 LAW 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 con- nection with mining and mineral extraction, regulated transmission projects, coal-fired power plants, and renewable and clean energy projects. Ali.Nelson@huschblack- well.com, 303-749-7263. The Carteret County Superior Court's decision vacating a National Pollutant Discharge Elimination System (NPDES) permit issued by the North Carolina Department of Envi- ronmental Quality Division of Water Resources (DWR) will change how that agency and likely others assess whether a proposed discharge will comply with applicable water qual- ity 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 jurisdic- tion, 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 imposi- tion of conditions did not "reasonably ensure compliance" with three water quality standards and regulations: (1) the "swamp waters" supplemental classification and antidegra- dation rule; (2) the water quality standard for pH; and (3) the water quality standard for biological integrity. Swamp Waters The Superior Court's ruling on the "swamp waters" supple- mental classification makes it clear that waters with such a supplemental classification are not entitled to additional protection of a "special use" or "characteristic." Proposed Discharge Court Decision Vacating Mine NPDES Permit Creates Uncertainty Regarding Compliance with Biological Integrity Water Quality Standard. By Ali Nelson Rather, the only legal effect of the "swamp waters" classi- fication 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 antidegra- dation rule and the rules governing the swamp waters supplemental classification did not protect uses or charac- teristics, and noted that the water quality rules provided additional protections for "High Quality Waters" or "Out- standing 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 condi- tions." 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 mainte- nance 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 func- tional 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, fish- eries management, and fish sampling methods and analysis