Programs / TN Clean Water Rules

 

UPDATE: YOUR VOICES WERE HEARD!

We asked you to voice your concern to the Tennessee Board of Water Quality, Oil & Gas about proposed rule changes that would undermine public participation and clean water protections. By the time the meeting was held on Tuesday (10/16/18), nearly 225 people had sent a message to the Board, and your voices were heard! 

First, with your help, we were able to get TDEC to reconsider and withdraw some of the more difficult and disturbing changes in the original May proposals.  The impressive showing of public concern prompted TDEC to schedule a Q&A session before the board meeting. The meeting itself lasted over seven hours. The Board ultimately approved of TDEC’s latest revisions to the water quality standards and antidegradation regulations, which were published just one week prior to the meeting (on 10/9/18). However, the Board made several beneficial changes to the proposed revisions for Aquatic Resource Alteration Permits (ARAPs), including:

1. Deleting an exception that would have granted permits for public road projects without requiring consideration of potentially less harmful alternative road locations;

2. Restoring the requirement to advertise permit applications in local newspapers of general circulation; and

3. Amending the proposed rule for stream restoration/mitigation projects to make sure a stream’s flow is maintained

To review what the Board considered, click here

Unfortunately, the revised rules approved by the Board still fail to adequately protect the clean water that is critical to our economy, our communities, and our quality of life. There is more work to be done, but your participation in Save TN Water has already made a difference. Thank you for your help!

We will keep you posted on future developments and ways you can help us protect clean water and natural resources in Tennessee.    

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Proposed revisions to Tennessee’s Clean Water Rules, Chapters 0400-40-03 (General Water Quality Criteria), 0400-40-04 (Use Classification for Surface Waters), and 0400-40-07 (Aquatic Resource Alteration) would:   

  • Allow more stream and rivers to be paved over, polluted forever!
  • Say it’s okay to let dirty waters stay dirty!
  • Enact anti-democratic changes that would further decrease public input on decisions polluting our clean water!
  • Continue the damaging impacts of development on clean water with out fixing other local problems to balance new pollution out!
  • Fail to adequately protect the clean water that is critical to our economy, our communities, and our quality of life! 

 

A major goal of Tennessee's Water Quality Control Act is to clean up previous pollution of our state's waters:

§ 69-3-102. Declaration of policy and purpose.

(a)  Recognizing that the waters of Tennessee are the property of the state and are held in public trust for the use of the people of the state, it is declared to be the public policy of Tennessee that the people of Tennessee, as beneficiaries of this trust, have a right to unpolluted waters. In the exercise of its public trust over the waters of the state, the government of Tennessee has an obligation to take all prudent steps to secure, protect, and preserve this right.

(b)  It is further declared that the purpose of this part is to abate existing pollution of the waters of Tennessee, to reclaim polluted waters, to prevent the future pollution of the waters, and to plan for the future use of the waters so that the water resources of Tennessee might be used and enjoyed to the fullest extent consistent with the maintenance of unpolluted waters. 

To read this statute in its entirety, click here.

The Tennessee Department of Environment and Conservation (TDEC) has proposed major changes to Chapters 0400-40-03 (General Water Quality Criteria), 0400-40-04 (Use Classification for Surface Waters), and 0400-40-07 (Aquatic Resource Alteration), which are Tennessee’s principal regulations on water quality protection.

The proposed changes are contrary to the purpose and spirit of the Water Quality Control Act, put clean waters at risk of pollution and development, and make it harder to clean up the waters that are already polluted. In fact, these changes are so detrimental to Tennessee’s natural heritage that the US Environmental Protection Agency says that in many cases, they don’t meet the minimum requirements of federal law. To review the USEPA’s comments, click here.

OUR CONCERNS:

Instead of attempting to "abate existing pollution of the waters of Tennessee, to reclaim polluted waters," or "to prevent...future pollution," the proposed regulations:

1. Grandfather in existing pollution and degradation

Image of green water filled with algae
Overgrowth of algae in our waterways due to
excessive nutrient run-off and sewer plant discharge.

The proposed regulations create several loopholes that allow existing pollution and degradation to continue unabated:

​When considering appropriate pollution levels when issuing discharge permits, the proposed regulations introduce a new definition of “new or increased discharges” and then provide that TDEC will not concern itself with pre-existing pollution levels. See Rules 0400-40-03-.04 (19) [Definition], 0400-40-03-.06 (1)(b), (3)(c), (d)(2)(a) [Waters with Unavailable Parameters], (d)(3)(a) [Waters with Available Parameters], (4)(c) [Authorization of Activities in Exceptional Tennessee Waters], (d) [Determination of Economic/Social Necessity]. 

  • The sections dealing with aquatic resource alteration permits (ARAPs), which are permits for alternations and withdrawals from rivers and streams or alterations to animal habitats along streams, include a new definition of “baseline conditions.” Those who want to degrade rivers and streams are only required to offset new pollution or new degradation. See Rules 0400-40-07-.03 (4), 0400-40-07-.04 (4)(b), (6)(c), (7)(a).
  • The proposed regulations make the wrong comparisons to “Reference Streams,” which shuts out public discussion about what of restoration is required or achievable.  The proposed regulations would require cleanup only to the levels of nearby already polluted streams, instead of requiring that permitees and regulators work to “abate existing pollution of the waters of Tennessee, and to reclaim polluted waters…”

 

2. Improperly decrease public participation in environmental decision-making

The proposed regulations make anti-democratic changes to the permitting process, erecting barriers to public participation and making environmental decisions more arbitrary and opaque:  

  • The new regulations would end requirements for public newspaper notice of ARAP permits, and instead not even require roadway signs about impending work to be legible from a public road. See Rule 0400-40-07-.04 (4)(d).
  • Fifth, the new rules would increase subjectivity and lack of definition in various standards. This would decrease citizens’ ability to “have a say” in environmental decision-making by allowing regulators to unilaterally decide, for example, what constitutes “undesirable alterations to water quality" including “strong stratification or excessive eutrophication of lakes…” See Rule 0400-40-03-.03 (k)(3).
  • The modified rules rely on not-yet-finalized guidance documents (Antidegradation Policy & Stream Quantification Tool), to try to eliminate the public’s right to notice, comment on, and challenge government rules. See Rules 0400-40-03-.06 (b)(4), 0400-40-07-.04(7)(b).

 

3. Allow Tennessee’s rivers and streams to be paved over without adequate mitigation

Image of Saw Mill Creek with a limited buffer zone near a road crossing.
Loss of important stream habitat due to poor roadway crossing
design and lack of a natural buffer.

The proposed regulations undercut permitees' obligations to offset the impact of development on waterways:

  • The new regulations legalistically “define away” requirements to analyze, avoid and minimize impacts on rivers and streams by saying that an impact is “de minimis” if mitigation is done. See Rule 0400-40-03-.04(4)(b).
  • The rules favor inexperienced permittees to do mitigation, contrary to the nationally-recognized preference for 1) established banks, 2) in lieu fee programs, and 3) permittee-performed mitigation. See https://www.epa.gov/cwa-404/mitigation-banking-factsheet.
  • There are no requirements to address cumulative impact, or even to track such impacts.   

 

4. Take important resources from people who use and need them by allowing mitigation (if any is required) to be performed far from the impact

Under the new rules, mitigation is not required to be done in proximity to the damage caused, and maybe not even in the same watershed, but potentially far away. See Rule 0400-40-03-.04 (12).

 

5. Changes don’t meet the minimum requirements of federal law

The US Environmental Protection Agency says that “[Some of TDEC’s proposed changes would make Tennessee’s regulations] narrower than the goals of the Clean Water Act. The Act requires water quality standards to protect the public health or welfare, enhance the quality of water, and serve the purposes of the Act. The water quality necessary to support the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water [is the goal of the federal Clean Water Act]…”  To review the USEPA’s comments, click here

The failure to meet even minimum federal requirements will likely result in EPA disapproval, meaning changes either will not happen, or be delayed, and potentially diminish certainty for business and other stakeholders, and slow down growth. 

WHAT WE TENNESSEE CITIZENS WANT:

A chance to work with the public and regulated communities to devise systems designed to achieve the goals of federal and Tennessee law: “to abate existing pollution of the waters of Tennessee, to reclaim polluted waters, to prevent the future pollution of the waters…” TN Code Ann. § 69-3-102.