Letter from Chair

“Carpe, Carpe Diem Boys, Make Your Lives Extraordinary.” Many of you may recall these lines from the movie Dead Poet’s Society, when Robin Williams, playing a private school instructor, instructs his students to look at the group pictures of students who had attended the school several years earlier and explains to them that “carpe diem” means “Seize the Day.” Well, as you all know, it is a New Year and there are many opportunities for you to “Seize the Day” in the opportunities that present themselves both in your personal and professional lives.

In the professional arena, this year presents an opportunity for you to participate in the state-wide Public Service Day on April 4, 2009. Opportunities to participate in pro bono activities on this day throughout the state are described in detail at the following link:
http://www.tba.org/4all/4-4grid.html. As TBA President Buck Lewis described in a speech in 2008, the text of which is now on the TBA’s website in the President’s page, by participating in Access to Justice Day, lawyers can act to create a “Proud and Enduring Legacy” (or as Lewis specifically said, to “Leave a Proud and Enduring Legacy”).

Upcoming opportunities to participate in the activities of the Environmental Section include the following: acting as a judge in the Jon Hastings Writing Competition and writing articles for newsletters.

I also want take this opportunity to thank Environmental Section members who have already assisted in various activities. For helping plan continuing education activities during the 2008-2009 year, thanks to Ed Calloway, Steve Stout, William Penny, Jim Wright, Robert Martineau, Charmaine Claxton, and E. Joseph Sanders. Thanks to Rick Hitchcock for serving as the chairman of the Jon Hasting Writing Competition Committee.

Finally, the 38th Annual Solid/Hazardous Waste Management Conference and Exhibition will be taking place in Gatlinburg at the Gatlinburg Convention Center from April 29, 2009 through May 1, 2009. As always, I anticipate the continuing legal education sessions at the conference to be of great value to environmental law practitioners.

In closing, I wish all of you a great year in making the most of the personal and professional opportunities that come your way. Seize the Day!

Max A. Fleischer
Assistant General Counsel
Tenn. Dept. of Environment and
Conservation
20th Floor, 401 Church Street
Nashville, TN 37243
(615) 532-0126
max.fleischer@state.tn.us

38th Annual Solid/Hazardous Waste Management Conference

The 38th Annual Solid/Hazardous Waste Management Conference will be held at the Gatlinburg Convention Center from April 29, 2009 through May 1, 2009. As usual, there will be continuing legal education sponsored at the conference by the Tennessee Bar Association (“TBA”) and the Tennessee Department of Environment and Conservation (“TDEC”). The topics to be included for CLE credit include the following: Developments in Air Pollution Regulation; Regulation of E-Waste; Environmental Crimes; Regulated Waters; Administrative Law and Process; Legislative Update and Hot cases; Ethics and “Solid Waste" in RCRA. On Friday, May 1, 2009, the TBA will be sponsoring a pancake breakfast with the Commissioner of TDEC.

To register or for more information, please visit the conference web site as follows:

http://www.state.tn.us/environment/swm/conference/

Are Wet Weather Conveyances Waters of the United States?

By Richard C. Young and William L. Penny

INTRODUCTION

A wet weather conveyance is not subject to federal jurisdiction under the Clean Water Act. Even though the United States Army Corps of Engineers (“USACE”) does not recognize that term, the way Tennessee has chosen to regulate these watercourses, by definition, takes them out of federal jurisdiction. As a legal matter the USACE conducts jurisdictional determinations based upon the latest guidance de jure. The USACE could even conclude that a wet weather conveyance technically meets the mercurial definition of “navigable waters.” However, Clean Water Act jurisdiction does not apply where a state has taken action to remove the so-called “uses” from the water quality standards. Accordingly, when the Water Quality Control Board adopted the wet weather conveyance rule, which was approved by the United States Environmental Protection Agency (“EPA”) in 1986, it removed any established uses for such waters in Tennessee.

The distinction between federal and state jurisdiction is more than academic. If it can be proven that a watercourse is in fact a wet weather conveyance under Tennessee law, then, regardless of the federal jurisdictional determinations, federal standards will not apply. Thus, the risk of EPA enforcement as well as the need for permits from the USACE can be minimized or eliminated. This paper addresses the jurisdictional requirements for wet weather conveyances and analyzes the development and history of the wet weather conveyance rule. While federal interpretation of waters of the United States continues to evolve, simple regulatory principles are still important in defining actual jurisdiction for federal agencies.

WATER QUALITY STANDARDS APPLICABLE TO WATERS OF THE UNITED STATES

The Federal Water Pollution Control Act of 1972 (P.L. 92-500), later amended and renamed in 1977 as the Clean Water Act1(the “CWA”), required states to adopt water quality standards for waters of the United States (“U.S.”) within their applicable jurisdictions (i.e., within state borders). Section 303(c) of the CWA and implementing regulations of the EPA at 40 C.F.R. § 131 requires, among other provisions, that state water quality standards include the designated use or uses to be made of the waters and the criteria necessary to protect those uses. Significantly, 40 C.F.R. § 131 requires that water quality standards protect CWA § 101(a)(2) uses (propagation of fish, shellfish, and wildlife and recreation in and on the water) unless those uses have been shown to be unattainable. Unless the state demonstrates that a fishable/swimmable use is not attainable, the use must be designated as fishable/swimmable.2 Where a state believes that a use specified in § 101(a)(2) is not attainable and wishes to remove or subcategorize this use, that state must conduct a use attainability analysis.3 Essentially, a water body's "use" establishes the basis for CWA jurisdiction, while water quality criteria only have meaning as they relate to protection of the established use.

States are required to review their water quality standards at least once every three years (via triennial review) and, if appropriate, revise or adopt new standards (CWA § 303(c)(1)). Further, states must submit these new or revised water quality standards to EPA for review and approval or disapproval (CWA § 303(c)(2)(A)). Under 40 C.F.R. § 131.21, if EPA approves a state’s new or revised water quality standard, that standard takes effect for CWA purposes.

Following EPA approval of these standards, states are allowed to issue CWA (§ 402) permits for point source discharges. While § 404 of the CWA assigns the responsibility of regulating dredge and fill impacts to waters of the U.S. to the USACE and EPA, the CWA allows states the ability to obtain authority to administer § 404 dredge and fill permits.4 Significantly, through § 401 of the CWA, Congress provided the states authority to condition and/or veto CWA § 404 permits. These are prime examples of “cooperative federalism” in that Congress clearly intended that the CWA be implemented and enforced jointly by EPA and the states.

WATER QUALITY STANDARDS APPLICABLE TO WATERS OF TENNESSEE AND WATERS OF THE UNITED STATES WITHIN THE STATE’S BORDERS

Responding to the requirements of the federal CWA as outlined above, the Tennessee legislature enacted the Tennessee Water Quality Control Act (the “Act”) in 1977.5 The Act established the Water Quality Control Board (the “Board”) which was given the authority to promulgate water quality standards as required by federal statute. The Tennessee water quality standards (CWA § 402 delegation) were approved by EPA Region IV in December 1977. The Act adopted an expansive definition of “waters of the State” [exceeding the reach of “waters of the United States”]:

“Waters” means any and all water, public or private, on or beneath the surface of the ground, that are contained within, flow through, or border upon Tennessee or any portion thereof, except those bodies of water confined to and retained within the limits of private property in single ownership that do not combine or effect a junction with natural surface or underground waters.”6

The Act also directed the Board to classify all waters of the state and adopt water quality standards pursuant to such classifications. In assigning use classifications of waters, the Act specifically directed the Board to consider the size, depth, surface area covered, volume, direction and rate of flow, stream gradient, and temperature of the water.7

In 1991 the Board amended the rule regarding use classifications by adding the words “with the exception of wet weather conveyances”.

“All other surface waters named and unnamed, within the [name] Basin, with the exception of wet weather conveyances, which have not been specifically noted shall be classified”.8

The meaning of “shall be classified” refers to the four default uses the Board assigned to all waters of the State; i.e., Fish & Aquatic Life, Livestock Watering & Wildlife, Irrigation, and Recreation (note – the Fish & Aquatic Life and Recreation uses are required by the CWA for all waters of the U.S. with the State’s borders).

HISTORY OF THE WET WEATHER CONVEYANCE RULE 9

During the 1986 triennial review the Board proposed revisions to the Tennessee Water Quality Standards. Following public participation and notice, the Division of Water Pollution control received comments from interested individual citizens, organizations, and governmental agencies on the propose revisions. The following comment was received from Region IV of the EPA:

“Some states in Region IV of EPA include provision for ephemeral streams in their standards. Such a classification may be useful to Tennessee.”10

To which the Division [Board] responded:

“The staff agrees that an ephemeral stream designation would be useful in those instances where the flow regime precludes attainment of recreation and fish and aquatic life use classifications.”11

The genesis of EPA’s ephemeral stream comment can be traced to a 1983 agreement between the State of Tennessee and EPA Region IV which put in place EPA approved procedures concerning how the Division was to conduct wasteload allocations in permitting point source discharges. Within that agreement, EPA suggested draft language for Ephemeral Stream Water Quality Standards Classification. The definitions section of the proposed language defined ephemeral streams as:

“Ephemeral streams shall mean a natural watercourse, including natural watercourses that have been modified by channelization, that flow only in direct response to precipitation in the immediate locality and whose channel is at all times above the ground water table.”12

Further, in the Water Quality Standards section, the agency proposed the following standards [uses] for ephemeral streams:

“Waters in this classification are not usable for fish life, human consumption, or aquatic life; however, the waters must be protective of wildlife and protective of humans which may come in contact with the waters. Waters contained in ephemeral streams must also allow maintenance of the standards applicable to all downstream waters.”13

Eventually, the proposed “Ephemeral Stream” rule was revised and approved by the Board as the “Wet Weather Conveyance” rule during the 1986 triennial review (the rule was subsequently approved by EPA Region IV pursuant to 40 C.F.R. § 131.21).

“Paragraph (3) shall read as follows: Wet Weather Conveyance -Wet weather conveyances are natural watercourses, including natural watercourses that have been modified by channelization, that flow only in direct response to precipitation in their immediate locality and whose channels are above the groundwater table and which do not support fish or aquatic life and are not suitable for drinking water supplies.”14

In 1991 the Division of Water Pollution Control proposed changing the language of the rule to read:

“Rule 1200-4-7-.02 (33) “Wet weather conveyance” means natural or man-made watercourses, including natural watercourses which have been modified by channelization, that flow only in direct response to precipitation in its immediate locality and the channels of which are above the groundwater table. Wet weather conveyances do not support fish or aquatic life and are not suitable for drinking water supplies.”15

The 1991 proposed rule changes were not adopted; instead the rule was amended by adding the phrase "man-made or" and the word "runoff." As amended, the rule read:

“Wet Weather Conveyance -Wet weather conveyances are man-made or natural watercourses, including natural watercourses that have been modified by channelization, that flow only in direct response to precipitation runoff in their immediate locality and whose channels are above the groundwater table and which do not support fish or aquatic life and are not suitable for drinking water supplies."16

Additionally, the Board amended the 1986 rule which required waters designated as wet weather conveyances to be protective of humans and wildlife and not degrade or adversely affect the quality of downstream waters by adding the language - “Applicable water quality standards will be maintained downstream of wet weather conveyances.”17

Finally, the Board changed the definition of “stream” by adding the words “except for wet weather conveyances”:

“All waters of the State on the surface of the ground except wet weather conveyances; streams include, but are not limited to, creeks, rivers, canals and tributaries.”18

ANALYSIS AND CONCLUSIONS

It is clear that the State of Tennessee’s jurisdiction of “waters” within its borders is much more expansive than “waters” defined as waters of the U.S. Nonetheless, all waters of the U.S. within the State’s borders must, at a minimum, support fish and aquatic life and recreational uses (CWA § 101(a)(2) uses) unless the State determines those uses are unattainable. States can only remove a “use” (including the so called “101(a)(2) uses”) by promulgation of state water quality standards, which includes the requirement for public notice, public participation and, lastly, EPA Region IV approval of the water quality standard eliminating the “use”.19 When EPA Region IV approved Tennessee’s water quality standards, those standards took effect for CWA purposes within the State of Tennessee. Those standards included the Wet Weather Conveyances rule which, pursuant to the State’s classification of surface waters rule, are not assigned any designated uses, including CWA § 101(a)(2) uses required for all “waters of the U.S.”

Therefore, while wet weather conveyances are waters of the State, by definition they are not “waters of the United States” because they do not support the CWA § 101(a)(2) uses, a statutory requirement for all waters of the U.S.

The U.S. Supreme Court opined in Solid Waste Agencies of Northern Cook County vs. U.S. Army Corps of Engineers that the federal government could not assert jurisdiction over purely intrastate waters where the only connection to navigable waters was use by migratory birds. 531 U.S. 159 (2001). This is but one example of the limitation of the definition of waters of the United States and demonstrates that not all waters of the state are presumptively waters of the U.S.

About the authors -

Richard C. Young is a consulting natural resource scientist and Consulting Senior Scientist to BDY Environmental, LLC in Nashville, TN. He holds a B.S. degree from Vanderbilt University’s Peabody College and an M.S. degree from Tennessee Technological University. Over his 37-year career, Mr. Young has specialized in hydrological and ecological assessments of wetlands, streams, reservoirs and lakes; ecological risk assessments; compensatory mitigation for aquatic resource damages, and jurisdictional issues associated with Clean Water Act Section 404 and 401 permitting. In these areas he is commonly employed as an expert by law firms to assist with permit negotiations and litigation at the local, state and federal level. Mr. Young is the principal author of the Bill of Rights for Permit Applicants [T.C.A. § 69-3-141].

William L. Penny is a member with the law firm of Stites & Harbison, PLLC, in Nashville, TN. He received his bachelor’s degree from the University of Tennessee at Knoxville and his law degree from the Nashville School of Law. Prior to entering private practice, he served as general counsel for the Tennessee Department of Health and Environment and subsequently the Department of Environment & Conservation. He is a frequent speaker at local, state and national seminars dealing with environmental law and is an instructor of environmental law at the Nashville School of Law. He was the first chairman and currently serves on the board of directors of the Environmental Law Section of the Tennessee Bar Association. He participates actively in the section on Energy, Environment and Resources where he is a member of the Section Council. He is the principal author of the book A Practical Guide to Tennessee Environmental Law. He is also listed in the latest editions of Best Lawyers in America.

Endnotes:

1. 33 U.S.C. § 1251 et seq. (2008).
2. see e.g. Idaho Mining Association v. Browner, 90 F. Supp. 2d 1078, 1092 (D. Id. 2000).
3. 40 C.F.R. § 131.10.
4. § 404(g)(1) authorizes a state to apply to the EPA for permission “to administer its own individual and general permit program for the discharge of dredged or fill material into the navigable waters (other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce … including wetlands adjacent thereto) within its jurisdiction … .” 33 U.S.C. § 1344(g)(1) (2008).
5. Tenn. Code Ann. § 69-3-102 (1977). (Declaration of policy and purpose. – (c) Moreover, an additional purpose of this part is to enable the state to qualify for full participation in the national pollutant discharge elimination system established under § 402 of the Federal Water Pollution Control Act, Public Law 92-500.)
6. Tenn. Code Ann. § 69-3-103(33)(1977).
7. Tenn. Code Ann. § 69-3-105(a)(1)(2)(A)(1977).
8. Tenn. Admin. Comp. Rule 1200-4-4 (2007) (emphasis added).
9. Tenn. Code Ann. § 69-3-103 (33) (2008).
10. October 31, 1986 Minutes of the Meeting of the Tennessee Water Quality Control. Public Comment on Proposed Amendments to the Tennessee Water Quality Criteria – Noticed January, 1986. Tennessee Library and Archives Microfilm.
11. Id.
12. 1983 Wasteload Allocation Agreement between State of Tennessee and EPA Region IV,Section A. Draft Language for Ephemeral Stream Water Quality Standards Classification. Obtained from files of the Natural Resources Section, Division of Water Pollution Control.
13. Id.
14. Tenn. Admin. Comp. Rule1200-4-3-.04 (1986). Statutory Authority: Tenn. Code Ann. §§ 4-5-202, 69-3-105 (1986).
15. Minutes of the Tennessee Water Quality Control Board, Tennessee Library and Archives Microfilm. (Emphasis added).
16. Tenn. Code Ann. §§ 4-5-202, 69-3-105 (1991). Original document review at Tennessee Division of Publications.
17. Tenn. Admin. Comp. Rule 1200-4-3-.02(7) (1986) (waters designated as wet weather conveyances shall be protective of humans and wildlife that may come in contact with them and shall not degrade or adversely effect the quality of downstream waters. Applicable water quality standards will be maintained downstream of wet weather conveyances).
18. Tenn Admin. Comp. Rule 1200-4-7.03(34) (1986).
19. EPA Region IV approved the rule as being consistent with 40 C.F.R. 131.10 which:
• requires that States specify the water uses to be achieved and protected,
• requires protection of downstream uses,
• allows for sub-category and seasonal uses,
• sets out minimum attainability criteria,
• lists six factors of which at least one must be satisfied to justify removal of designated uses that are not existing uses,
• prohibits removal of existing uses,
• requires upgrading of uses that are presently being attained but not designated, and
• establishes conditions and requirements for conducting use attainability analyses.
The six factors which allow a State to remove a designated use are found at 40 C.F.R. § 131.10(g). The regulations require that State “…water quality standards [must] provide for fishable/swimmable uses unless those uses have been shown to be unattainable, effectively creating a rebuttable presumption of attainability.” Note that EPA’s language on attainability is in the “past tense” – the waters are to be designated as “fishable/swimmable” until a UAA [use attainability analysis] proves otherwise. States may remove a designated use which is not an existing use, as defined in § 131.3, or establish sub-categories of a use if the State can demonstrate that attaining the designated use is not feasible because:
1. Naturally occurring pollutant concentrations prevent the attainment of the use; or
2. Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met; or
3. Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place; or
4. Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in the attainment of the use; or
5. Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses; or
6. Controls more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact. (Emphasis added).

This Newsletter is Sponsored by:

David Higney
Vice-Chair
Grant, Konvalinka & Harrison, PC (Chattanooga)
dhigney@gkhpc.com

LeAnn Mynatt
Immediate Past Chair
Baker, Donelson, Bearman, Caldwell & Berkowitz PC (Knoxville)
lmynatt@bakerdonelson.com

Devin Wells
Secretary/Treasurer & Associate Newsletter Editor
TN Dept. Environment & Conservation (Nashville)
devin.wells@state.tn.us

Rebecca Chunn Tolene
Newsletter Editor
Tennessee Valley Authority (Knoxville)
rctolene@tva.gov

East TN Delegates:

Rick Hitchcock
Chambliss Bahner & Stophel P.C. (Chattanooga)
rhitchcock@cbslawfirm.com

Ashley Lowe
Baker, Donelson, Bearman, Caldwell & Berkowitz (Knoxville)
alowe@bakerdonelson.com

Middle TN Delegates:

Jason Holleman
City Attorney (Mt. Juliet)
jholleman@cityofmtjuliet.org

David L. Henry
TN Dept. Environment & Conservation (Nashville)
david.henry@state.tn.us

West TN Delegates:

Joe Murphy
U.S. Attorney’s Office Western District (Memphis)
joe.murphy@usdoj.gov

Charmiane Claxton
Apperson Crump & Maxwell (Memphis)
cclaxton@appersoncrump.com

Allen Malone
Burch, Porter & Johnson, PLLC (Memphis)
amalone@bpjlaw.com