Stormwater Permitting for Tennessee Projects - Articles

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Posted by: Lynn Pointer on Apr 23, 2013

This article originally appeared in the April issue of Dixie Contractor Magazine.

by Darlene Marsh

Stormwater runoff from construction sites can be a major source of pollution to nearby streams, ponds and lakes.  Proper permitting and maintenance of pollution measures is critical to avoiding violations of environmental laws and keeping your project on time and under budget.  This article will briefly review the steps and components of the permitting process.

Tennessee has delegated authority from the Environmental Protection Agency (“EPA”) to implement the state’s National Pollutant Discharge Elimination System’s  (“NPDES”) permit program as authorized by the Clean Water Act.  Construction sites (and related support activities) are considered point sources and coverage by an NPDES permit is required.  Tennessee has adopted a General NPDES Permit for Discharges of Stormwater Associated with Construction Activities (“General Permit”).  Coverage under the General Permit is required for all construction activities that disturb one or more acres of land.  If the initial project is less than an acre, but is part of a common plan of development or sale that encompasses more than one acre, coverage of the initial project (even though less than one acre) will also be required.

To obtain coverage under the General Permit, applicants must file a Notice of Intent (“NOI”) with the Tennessee Department of Environment and Conservation (“TDEC”) Environmental Field Office (“EFO”) for the area of the development and pay the proper fee.  The graduated fee ranges from $250 to $7,500 depending on the size of the project.  The NOI must include a map of the proposed site and the receiving water or storm sewer.  The NOI must also include a site-specific Storm Water Pollution Prevention Plan (“SWPPP”), detailing the Best Management Practices (“BMPs”) that will be utilized during each sequence of the construction process to prevent soil erosion and control sediments.  The applicant must commit to implementing ongoing maintenance and inspection procedures throughout the construction period, as well as retaining records of such maintenance and inspections for a period of three years.  NOIs are not transferable and new owners must submit a new NOI application. 

The EFO will issue a Notice of Coverage (“NOC”) to the applicant, at which point construction activities may commence.  The NOC is NOT an approval of the SWPPP and SWPPP modification may be required if the proposed BMPs fail to prevent erosion and control sediment. 

One item of critical importance when siting projects and preparing the SWPPP is to identify the TDEC classification of the receiving waters.  The three primary classifications of note in the permitting process are Outstanding, Exceptional and Impaired. 

Outstanding waters constitute a national resource, such as waters of national and state parks and wildlife refuges or waters with particular recreational or ecological significance.  No new discharges will be permitted unless such activity will not result in measurable degradation of the water quality.  In other words, physical alterations that cause degradation are not allowed. 

Exceptional waters are those within state or national parks, wildlife refuges, forests, wilderness areas, State Scenic Rivers, Federal Wild and Scenic Rivers, waters supporting threatened or endangered species, naturally reproducing trout streams and waters of exceptional biologic diversity or ecological or recreational values.  Degradation of exceptional waters is allowed only when justified by necessary economic or social development AND the development will not interfere with or become injurious to any classified uses of the receiving waters.

Impaired waters are defined as waters not meeting their designated uses and States are required to identify these waters under Section 303(d) of the Clean Water Act.  As a result, the identification of these waters is often referred to as the 303(d) list.  These waters have one or more properties that violate water quality standards or are expected to exceed water quality standards in the next two years and need additional pollution controls.  The General Permit requires a higher degree of protection for streams impaired due to sediment and more stringent design criteria apply. 

The lists containing these classifications may be found on the TDEC website.[1]   When siting projects and especially when preparing SWPPPs, the classification will dictate the degree of protection to be achieved by selection of BMPs for the construction project.

Although beyond the scope of this article, there may be other permits required of particular developments, including local permits and aquatic resource alteration permits.  Five local jurisdictions are now participating with TDEC as pilot Qualifying Local Programs (“QLPs”).  For projects located in these QLPs, a single NOI filed at the local level also authorizes construction under the State General Permit.  A wealth of information is available on the TDEC website, including forms, and developers are encouraged to consult this resource on an as-needed basis.[2]  This article has relied heavily on the information contained in the Tennessee Erosion & Sediment Control Handbook.[3]  The Handbook includes a template SWPPP for a single-family residence (at a length of 13 pages) as well as links to the EPA website where SWPPP templates for a medium size (20 acre) residential subdivision (73 pages) and a small (5 acre) commercial site (56 pages) are also available.

There is no substitute for engaging competent, professional legal and technical expertise as early as possible in the development process.  The time and attention devoted to these issues on the front end will be reflected in the profits generated by properly designed and maintained construction projects.

Darlene Marsh is a partner in the Environmental and Real Estate Practice Groups at Burr & Forman LLP Nashville's office.