Rules & Regulations of the State of Tennessee
Title 0400 - Environment and Conservation
Subtitle 0400-40 - Water Resources (WPC)
Chapter 0400-40-03 - General Water Quality Criteria
Section 0400-40-03-.06 - ANTIDEGRADATION STATEMENT

1. A complete application will include all of the information requested on the forms provided by the Department. For activities other than new domestic wastewater discharges, a complete application will include the applicant's basis for concluding that the proposed activity:

2. If the proposed activity will cause degradation of any available parameter above a de minimis level, or if it is a new discharge of domestic wastewater, a complete application will:

3. An alternative to degradation is practicable if it is technologically possible, able to be put into practice, and economically viable. Potentially practicable alternatives include, but are not limited to, the following:

4. To demonstrate that greater than de minimis degradation is necessary to accommodate important social or economic development in the area in which the waters are located, the applicant shall provide a written justification to include, as applicable, a description of the project, the number of jobs anticipated to be created (including salaries/benefits, duration, and type), tax revenue to be generated, impact of the proposed degradation to development potential in the area, other social/cultural impacts, and any other justification. Applicants shall submit alternative or additional information regarding economic or social necessity as directed by the Department. The justification should demonstrate an overall benefit to the local community, not just a benefit to the applicant.

1. In the case of new or increased discharges, if the Department determines that no measurable degradation will occur as a result of the activity, no further review under this rule is required regardless of the antidegradation classification of the receiving stream, unless the activity:

2. In the case of new or increased water withdrawals requiring permits from waters other than ONRWs, if the Department determines that no measurable degradation will occur, no further review under this rule is required regardless of the antidegradation classification of the receiving stream.

3. In the case of new or expanded habitat alterations, if the Department determines that no more than de minimis degradation will occur, no further review under the rule is required regardless of the antidegradation classification of the receiving stream.

1. Waters within state or national parks, wildlife refuges, forests, wilderness areas, or natural areas;

2. State scenic rivers or federal Wild and Scenic Rivers;

3. Federally-designated critical habitat or other waters with documented non-experimental populations of State or federally-listed threatened or endangered aquatic or semi-aquatic plants or animals;

4. Waters within areas designated as Lands Unsuitable for Mining pursuant to the federal Surface Mining Control and Reclamation Act where such designation is based in whole or in part on impacts to water resource values;

5. Waters with naturally reproducing trout;

6. Waters with exceptional biological diversity as evidenced by a score of 40 or 42 on the Tennessee Macroinvertebrate Index using protocols found in the Department's 2021 Quality System Standard Operating Procedure for Macroinvertebrate Stream Surveys, provided that the sample is considered representative of overall stream conditions; or

7. Other waters with outstanding ecological, or recreational value as determined by the Department. When application of this provision is a result of a request for a permit, such preliminary determination is to be made within 30 days of receipt of a complete permit application.

1. In waters identified as Exceptional Tennessee Waters new or increased discharges that would cause degradation of any available parameter above the level of de minimis and new domestic wastewater discharges will only be authorized if the applicant has demonstrated to the Department that there are no practicable alternatives to prevent or lessen degradation associated with the proposed activity, the degradation is necessary to accommodate important economic or social development in the area in which the waters are located, and the discharge will not violate the water quality criteria for uses existing in the receiving waters. If one or more practicable alternatives is identified, the Department shall only find that a lowering is necessary if those alternative(s) are selected for implementation. At the time of permit renewal, previously authorized discharges, including upstream discharges, which presently degrade Exceptional Tennessee Waters above a de minimis level, will be subject to a review of updated analysis of alternatives information provided by the applicant, but not to a determination of economic/social necessity. Public participation for these existing discharges will be provided in conjunction with permitting activities.

2. In waters identified as Exceptional Tennessee Waters, new or increased water withdrawals that would cause degradation of any available parameter above the level of de minimis will only be authorized if the applicant has demonstrated to the Department that there are no practicable alternatives to prevent or lessen degradation associated with the proposed activity and the degradation is necessary to accommodate important economic or social development in the area in which the waters are located and will not violate the water quality criteria for uses existing in the receiving waters. If one or more practicable alternatives is identified, the Department shall only find that a lowering is necessary if those alternative(s) are selected for implementation.

3. In waters identified as Exceptional Tennessee Waters, a new or expanded activity that would cause degradation of habitat above the level of de minimis will only be authorized if the applicant has demonstrated to the Department that there are no practicable alternatives to prevent or lessen degradation associated with the proposed activity, and the degradation is necessary to accommodate important economic or social development in the area in which the waters are located and will not violate the water quality criteria for uses existing in the receiving waters. If one or more practicable alternatives is identified, the Department shall only find that a lowering is necessary if those alternative(s) are selected for implementation.

1. If the Department determines after completion of the public notice and comment procedures established in subparagraph (1)(c) of this rule that an activity that would cause degradation above a de minimis level of Exceptional Tennessee Waters is necessary to accommodate important economic or social development in the area in which the waters are located, it shall give notice to the applicant, the public, and federal and State agencies with jurisdiction over fish, wildlife, shellfish, plant and wildlife resources, parks, and advisory councils for historic preservation. This notice shall be given by being posted on the Department's website and by sending email to persons who have asked to be notified of permit actions. Within 30 days after the date of the notification, any affected intergovernmental coordination agency or affected third person may petition the Board for a declaratory order under T.C.A. § 4-5-223, and the Board shall convene a contested case. After the Board has convened a contested case in response to a declaratory order petition under this part, the Department shall within five business days thereafter transmit the petition to the Administrative Procedures Division of the Secretary of State so the contested case may be docketed and an administrative law judge may be assigned to the case. If a declaratory order petition is timely filed, the Department shall not proceed further in processing the permit application until the petition has been resolved before the Board. In the contested case, the petitioner shall have the burden of proof, and the Department's determination shall carry no presumption of correctness before the Board. The applicant is a necessary party to the declaratory order contested case, and if the applicant does not participate in the contested case, the Board shall render a decision that degradation is not necessary to accommodate important economic or social development in the area in which the waters are located. If no intergovernmental coordination agency or third person petitions for a declaratory order within 30 days of the notification date, or if one is filed after the 30 days expires, then the Department shall proceed with processing the permit application.

2. A declaratory order contested case conducted under this subparagraph shall be subject to the following procedures. Mediation may occur if all the parties agree. Any proposed agreed order resulting from mediation shall be subject to approval by the Board. In order to provide for an expedited proceeding, the contested case is subject to the following time limitations. The time periods specified in this part shall commence on the day after the contested case has been docketed by the Administrative Procedures Division of the Secretary of State and an administrative law judge has been assigned to the case. Any alteration of the time periods set out in this part shall be granted only upon agreement of all the parties, or when there have been unforeseen developments that would cause substantial prejudice to a party, or when the parties have agreed to mediation. Within 20 days, the parties shall confer to try and develop a proposed agreed scheduling order. If the parties are unable to agree, then each party shall submit a proposed scheduling order, and the administrative law judge, after a hearing, shall enter a scheduling order. All discovery shall be completed no later than 20 days prior to the date the hearing before the Board is to begin. Within 120 days, the hearing before the Board shall begin, but the Board on its own initiative may exceed 120 days to complete the hearing and render its final decision. In order for degradation of Exceptional Tennessee Waters to proceed pursuant to these rules, the Board must make a finding approving degradation by a majority vote of the members of the Board present and voting.

3. If the Department determines that degradation is not necessary to accommodate important economic or social development in the area in which the waters are located, it will notify the applicant, the federal and state agencies with jurisdiction over fish, wildlife, shellfish, plant and wildlife resources, parks, and advisory councils for historic preservation, and third persons who have asked to be notified of permit actions. The Department also will issue a tentative decision to deny the permit because degradation is not necessary. In accordance with paragraph (4) of this rule, the Department will provide the public with notice of and an opportunity to comment on its tentative denial decision. If no public hearing is requested within the 30-day public comment period, and if the Department does not alter its tentative decision to deny, the Department shall notify the applicant of its final decision to deny the permit because degradation is not necessary. Within 30 days after receiving notice of the final decision to deny the permit, the applicant may seek review of the decision that the degradation is not necessary to accommodate important economic or social development in the area in which the waters are located in a contested case before the Board in accordance with T.C.A. § 69-3-105(i). Within five business days after the Department receives an applicant's written request for a contested case hearing before the Board, the Department shall transmit the written request to the Administrative Procedures Division of the Secretary of State so the contested case may be docketed and an administrative law judge may be assigned to the case. In the contested case, the applicant shall have the burden of proof, and the Department's determination shall carry no presumption of correctness before the Board. The federal and state intergovernmental coordination agencies, and third persons who requested notification of the Department's degradation determination will be notified by the Department of the applicant's permit appeal. The intergovernmental coordination agencies and third persons may seek to intervene in the contested case in accordance with T.C.A. § 4-5-310.

1. In surface waters designated by the Board of Water Quality, Oil, and Gas as ONRWs, no new discharges, expansions of existing discharges, water withdrawals or mixing zones will be permitted unless such activity will not result in either measurable degradation or discernible effect. At the time of permit renewal, previously authorized discharges, including upstream discharges and withdrawals, which presently degrade an ONRW, will be subject to an analysis of alternatives. Public participation for these existing discharges will be provided in conjunction with permitting activities.

2. In waters designated by the Board of Water Quality, Oil, and Gas as ONRWs, no new or expanded habitat alteration that would cause degradation of habitat above the level of de minimis or degrade water chemistry for more than a short duration will be authorized.