Bill Penny
Bill Penny

Bill Penny is a Member in the Nashville office of Stites & Harbison. He is a member of the firm's Environmental, Natural Resources and Energy Service Group as well as the Green Industry Practice Group. Bill has more than 25 years experience in environmental law. You can contact him at william.penny@stites.com or by phone at 615-782-2308.

Martin Corinne
Corinne Martin

Corinne Martin is an Associate in the Nashville office of Stites & Harbison. She is a member of the Environmental, Natural Resources & Energy Service Group, the Green Industry Practice Group, and the Business Litigation Service Group. cmartin@stites.com or by phone at 615-782-2218.

water

DAVIDSON COUNTY CHANCERY COURT ISSUES RULING ON ANTIDEGRADATION STATEMENT FOR UNAVAILABLE WATERS

10.26.11 11:20 AM
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In a Chancery Court decision issued October 17, 2011, Pickard v. Water Quality Control Board, No.09-228-III, Chancellor Ellen Hobbs Lyle granted summary judgment on a challenge to the TDEC’s application of a portion of the Water Quality Control Board’s antidegradation statement. At issue was whether or not the antidegradation statement’s requirement for “unavailable” waters was triggered for a stream that is biologically impaired. TDEC argued that the water quality criteria relating to “biological impairment” for waters with fish and aquatic life uses was not a parameter. According to the antidegradation statement at 1200-4-3-.06(2):
 
Unavailable conditions exist where water quality is at, or fails to meet, the criterion for one or more parameters. In unavailable conditions, new or increased discharges of a substance that would cause or contribute to a condition of impairment will not be allowed (emphasis supplied).
Chancellor Lyle disagreed with TDEC’s interpretation and found that biological impairment was indeed a parameter and triggered the antidegradation act’s requirements. Chancellor Lyle refused to invalidate the rule, but noted the Petitioners had a remedy by requiring TDEC to enforce the requirement.

The case also presented a procedural twist. The case was a followup in part to its ruling in Pickard v. Water Quality Control Board, 09-2297-III,  April 11, 2011, where Chancellor Lyle expounded on the ability of combining a declaratory order procedure with a permit appeal.  A third party permit appeal is authorized under Tenn. Code Ann. § 69-3-105(i). However, the Petitioners reviewed the draft permit and learned that TDEC did not consider the waters in question as “unavailable” though they may have biological impairment or habitat impairment. Rather than waiting for the permit to be issued and appeal, they filed a Petition for Declaratory Order under Tenn. Code Ann. § 4-5-223. When the Board refused to hear the Petition, Petitioners filed a lawsuit in the Chancery Court of Davidson County under Tenn. Code Ann. § 4-5-225. TDEC and the Attorney General argued that the Petition was not ripe in that the final permit had not been issued and even if it were the exclusive way to appeal a permit was through the procedure in 69-3-105(i). Chancellor Lyle disagreed saying that that provision was not the only means for reviewing legal issues that might relate a particular permit, and it was appropriate to obtain a ruling as a matter of law on an important topic.

At this time, it is unclear as to whether the state intends to appeal the decision.

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