Current through September 24, 2024
(1) Application for a Permit.
Any person who plans to engage in any of the activities
outlined in T.C.A. §
69-3-108 must
obtain a permit from the Commissioner to lawfully engage in such activity. When
a § 401 certification is required, the ARAP also serves as the § 401
certification. There are two (2) types of ARAPs: Individual Permits and General
Permits. There are several types of General Permits:
(1) a General Permit that authorizes the
implementation of the activity in accordance with all the terms and conditions
of the General Permit without prior notice and approval from the Commissioner;
(2) a General Permit that requires the applicant to notify TDEC of the planned
activity prior to implementing the activity in accordance with the terms and
conditions of the General Permit; and (3) a General Permit that requires the
applicant to notify the Commissioner of the planned activity and receive a
notice of coverage from the Commissioner prior to implementing the activity in
accordance with the terms and conditions of the General Permit. ARAP
applications shall be submitted on forms approved by the Commissioner, and
include all of the information requested therein. Certain of the General
Permits authorize an activity that is authorized by a Nationwide Permit of the
U.S. Corps of Engineers and therefore serve as a § 401 Certification.
Persons need not file an application with the Commissioner if they are
conducting an activity pursuant to a General Permit that does not require
notice or approval, but must implement the planned activity in accordance with
the terms and conditions of the General Permit. Persons who desire to implement
an activity pursuant to a General Permit which requires notice, or notice and
prior approval, must submit the necessary documentation required by the General
Permit prior to implementing the planned activity in accordance with the terms
and conditions of the General Permit. A person must file an application for an
Individual Permit or for a § 401 Water Quality Certification with the
Division, in accordance with paragraphs (3) and (5) of this rule, to implement
any activity requiring an ARAP that is not authorized by a General
Permit.
(2) General Permits.
The Commissioner may issue General Permits to authorize
alterations to state waters for specific categories of activities that are
substantially similar in nature within the state or other specified
geographical areas. General Permits for habitat alterations may be issued only
for activities that do not result in an appreciable permanent loss of resource
values. General Permits may be issued for water withdrawals that cause no more
than de minimis degradation. When the Commissioner determines that a category
or activity is suitable for coverage by a General Permit, or that substantive
modification of existing General Permits is consistent with T.C.A. §
69-3-108, the
Commissioner will provide notice of, and conduct a minimum of, one public
hearing. The public notice will contain the relevant information, as set forth
in subparagraph (4)(c) of this rule and will be published along with a copy of
the draft General Permit and a rationale explaining the basis for the permit.
The Division will distribute the public notice to interested persons who have
requested the Division notify them of ARAP applications and by posting on the
Tennessee Department of Environment and Conservation's (TDEC's) website.
Interested persons may submit written comments on the draft General Permit
within 30 days of the public notice or such greater period as the Commissioner
allows. All written comments submitted shall be retained and considered in the
final determination to issue a General Permit. The procedures for obtaining
coverage under a General Permit shall be specified in the General
Permit.
(3) Section 401
Water Quality Certification.
An applicant for a federal license or permit to conduct an
activity which may result in a discharge to the navigable waters must first
obtain a § 401 certification from the Division. If the proposed activity
requires an ARAP, that permit serves as the § 401 certification and is
subject to the application and public notice procedures for obtaining ARAP
coverage established by this chapter. Coverage under a General Permit, obtained
either through a notice of coverage or automatic coverage under a General
Permit for which no prior notice to the Division is required, constitutes a
§ 401 certification. If the proposed activity does not require an ARAP,
the applicant for a federal license or permit may obtain a § 401
certification by submitting a copy of the federal application to the Division
and a request for a § 401 certification.
(4) Public Notice and Participation.
(a) An ARAP Individual Permit or a § 401
Certification requires the issuance of public notice seeking public
participation and comment on the planned activity. However, public notice is
not required for an activity authorized by General Permit because public notice
is provided pursuant to paragraph (2) of this rule. Each completed application
shall be subject to the public notice and participation requirements of
subparagraph (b) of this paragraph with the following exceptions:
1.
§ 401 Certification.
The Division's procedure for issuing public notice for
certification of an application for a federal license or permit pursuant to
§ 401 of the Clean Water Act for an activity that does not require an ARAP
shall be a public notice issued by the Division. Such notice will describe the
activity and advise the public of the scope of certification, their rights to
comment on the proposed activity, and to request a public hearing. The notice
will also inform the public to whom they should send their requests and
comments.
2. Minimal impact
activities.
For activities that are projected to have only minimal
impacts to streams or wetlands, which can be readily addressed, the
Commissioner may utilize a 20 day public notice period.
3. When the Commissioner determines that a
proposed permit modification or renewal will not materially change water
quality aspects of the project, or will result in an improvement of water
quality, as compared to the originally permitted activity, a permit may be
modified or renewed without public notice. Otherwise, a renewal or modification
requires public notice.
4. Where
the Commissioner determines an emergency situation exists, a permit for
remedial action may be issued without prior public notice and participation.
The emergency permit shall be advertised by public notice, however, no later
than 20 days after issuance. This permit shall be subject to all other
provisions of subparagraph (b) of this paragraph. The remedial actions allowed
shall be limited to those necessary to remedy the emergency.
(b) Upon receipt of a completed
ARAP application, the Commissioner will review and evaluate the proposed
activity or project to make a determination whether to issue an Individual
Permit, as described in paragraph (5) of this rule. In order to inform
interested and potentially interested persons of the proposed activity, a
public notice seeking public participation and comment on the activity will be
given, along with a draft permit and a rationale explaining the basis for the
draft permit, including the basis for determining whether a proposed activity
will result in an appreciable permanent loss of resource values. Except as
provided in subparagraph (5)(c) of this rule, if an activity will result in an
appreciable permanent loss of resource values, the draft permit shall include
requirements for mitigation and the rationale shall explain the basis for
determining that the mitigation is sufficient to result in no overall net loss
of resource values from existing conditions.
(c) The public notice will include the
following information:
1. Name, address, and
telephone number of the applicant;
2. Name, address, telephone number, and
electronic mail address of the Division contact person;
3. A brief description of the proposed
activity;
4. The location of the
streams or wetlands impacted by the proposed activity;
5. The Division website at which additional
information about the permit application can be found;
6. The procedure to submit comments on the
proposed activity;
7. The procedure
for requesting a public hearing; and
8. A brief description of the procedure for
the Commissioner to make a final determination to issue a permit.
(d) The approved public notice
shall be distributed to interested persons and shall be circulated within the
geographical area of the proposed activity as follows:
1. The Division will distribute the approved
public notice to interested persons who have requested the Division notify them
of ARAP applications and by posting on the TDEC website.
2. The Applicant shall distribute the
approved public notice to the neighboring landowners by publishing in a local
newspaper of general circulation and by posting a sign within view of a public
road in the vicinity of the proposed project site as specified by the Division.
The sign shall contain those provisions as specified by the Division. The sign
shall be of such size that is readily visible from the public road. Also, the
sign shall be maintained for at least 30 days following distribution of the
approved public notice.
3. The
applicant shall provide certification to the Division of compliance with part 2
of this subparagraph.
(e) A copy of the public notice shall be sent
to any person who specifically requests one. Interested persons may submit
written comments on the proposed activity within 30 days of public notice or
such greater period as the Commissioner allows. All written comments submitted
shall be retained and considered in the final determination to issue a
permit.
(f) Interested persons,
including the applicant, may request, in writing, that the Commissioner hold a
public hearing on any application. Said request from interested persons must be
filed as soon as possible, but no later than the end of the period allowed for
public comment, and must indicate the interest of the party filing it, must
concisely state the water quality issues being raised, and the reasons why a
hearing is warranted. If there are water quality issues and significant public
interest in having a hearing, the Commissioner shall hold one in the
geographical area of the proposed activity. No less than 30 days in advance of
the hearing, public notice of it shall be circulated at least as widely as was
notice of the application. The Commissioner will distribute notice of the
public hearing as set forth in part (d)1. of this paragraph. The notice shall
cite the date, time and place of the public hearing, a statement of the issues
raised by the person requesting the hearing, and the purpose of the public
hearing.
(5) Individual
Permits.
(a) Persons who plan to engage in any
activity that requires an Aquatic Resource Alteration Permit which is not
governed by a General Permit or a § 401 Water Quality Certification, must
submit an application to the Commissioner for review and approval prior to
implementing the planned activity. The Commissioner will review a completed
application and make a determination whether to issue an Individual Permit. The
application must describe the proposed activity and include all the necessary
technical information for the Commissioner to make a determination.
(b) The applicant shall submit an
alternatives analysis evaluating a range of potentially practicable
alternatives to avoid and minimize the loss of resource values consistent with
the overall purpose of the proposed activity. No Individual Permit shall be
granted if there is a practicable alternative to the proposed activity that
would have less adverse impact on resource values, so long as the alternative
does not have other significant adverse environmental consequences.
(c) The applicant shall describe the proposed
project including the use of technical terms defined in Rule
0400-40-07-.03 where
relevant. The sketch or plans and specifications submitted with the application
shall describe the method for implementation of the planned activity. Where the
proposed activity would result in an appreciable permanent loss of resource
value, the applicant must propose mitigation sufficient to result in no overall
net loss of state water resource values. In the case of emergency permits or
other situations compelling that measures be taken in a short time, a state,
county, or local government applicant for a public works project may propose a
specific mitigation plan after an Individual Permit has been issued, provided
that the permit shall specify the amount of mitigation required and an
implementation timeline. In this case, the permittee shall comply with the
mitigation plan approved by the Division.
(d) An Individual Permit is required for
water withdrawals which will or will likely result in alteration of the
properties of the affected stream or wetland and will result in more than de
minimis degradation as defined in Rule
0400-40-03-.04(4).
1. Persons proposing to withdraw water from
waters of the state in a manner which will or will likely result in an
alteration of the properties of a stream or wetland, shall file an application
with the Division which includes the following minimum information:
(i) Proposed withdrawal rates and
volumes;
(ii) Proposed withdrawal
schedule; and
(iii) Flow data of
the source stream (if free flowing).
2. Where a permit for water withdrawal is
required, the Commissioner shall establish permit conditions which are
protective of the resource values of the affected stream or wetland. These
conditions may include flow levels below which no withdrawal may occur. The
Commissioner may also establish a maximum withdrawal rate in order to maintain
the natural flow fluctuation characteristics of the source stream. Monitoring
and reporting requirements may be established to ensure and document compliance
with permit conditions.
(6) Permit Evaluation Criteria.
(a) Some activities may not be entitled to a
permit. When a permit is granted, it shall require compliance with all
provisions of the Act, the rules adopted pursuant to the Act, and any special
terms or conditions the Commissioner determines are necessary to fulfill the
purposes or enforce the provisions of the Act.
(b) A permit may be modified, suspended, or
revoked for cause by the Commissioner upon such notice to the permittee as
required by law. Cause shall include, but not be limited to the following:
1. Violation of any terms or conditions of
the permit;
2. Obtaining a permit
by misrepresentation or failure to disclose fully all relevant facts;
3. Causing a condition of
pollution;
4. Violation(s) of the
Act or other environmental statutes;
5. A change in the Act or rules that
substantively impacts the content of the permit;
6. A change in the federal Clean Water Act
that substantively impacts the content of the permit; and
7. A significant change of the physical
condition(s) of the site or the waters.
(c) No activity may be authorized by the
Commissioner unless any appreciable permanent loss of resource values
associated with the proposed impact is offset by mitigation sufficient to
result in no overall net loss of resource values from existing conditions. In a
situation in which an applicant proposes mitigation that would not result in no
overall net loss, the Commissioner shall not issue the permit unless the
applicant redesigns the project to avoid impacts, minimize them, or provide
mitigation as provided in paragraph (7) of this rule so that the redesigned
project would result in no net loss of resource value. In making a decision on
a permit application, the Commissioner shall determine the loss of resource
values from existing conditions associated with a proposed impact and the
increase in resource values of any proposed mitigation and shall consider the
following factors:
1. Direct loss of stream
length, flow, or wetland area due to the proposed activity;
2. Direct loss of in-stream or wetland
habitat due to the proposed activity;
3. Impairment of stream channel stability due
to the proposed activity;
4.
Diminishment in species composition in any stream or wetland due to the
proposed activity;
5. Direct loss
of stream canopy due to the proposed activity;
6. Whether the proposed activity is
reasonably likely to have cumulative or secondary impacts to the water
resource;
7. Conversion of unique
or high quality waters as established in Rule
0400-40-03-.06
to more common systems;
8.
Hydrologic modifications resulting from the proposed activity;
9. The adequacy and viability of any proposed
mitigation including, but not limited to, quantity, quality, likelihood of long
term protection, and the inclusion of riparian buffers;
10. Quality of stream or wetland proposed to
be impacted;
11. Whether the stream
or wetland is listed on the § 303(d) list or otherwise has unavailable
parameters; whether the proposed activity is located in a component of the
National Wild and Scenic River System, a State Scenic River, waters designated
as Outstanding National Resource Waters, or waters identified as high quality
waters as defined in Rule
0400-40-03-.06,
known as Tier II waters; whether the activity is located in a waterway which
has been identified by the Division as having contaminated sediments; and
whether the activity will adversely affect species formally listed in State and
federal lists of threatened or endangered species; and
12. Any other factors relevant under the
Act.
(d) All permits
which require mitigation of impacts shall contain conditions requiring that the
mitigation is performed properly, performed in a timely manner, and is
adequately maintained.
(7) Mitigation.
(a) If an applicant proposes an activity in a
stream or wetland that would result in an appreciable permanent loss of
resource values, the applicant must provide mitigation which results in no
overall net loss of resource values from existing conditions. Because all
streams and wetlands serve important functions, the determination of existing
conditions shall ensure at least minimal protection for all streams and
wetlands notwithstanding prior degradation.
1.
The applicant shall provide the Division with a mitigation plan, including a
time schedule for completion of all mitigation measures, for approval. To the
extent practicable, the applicant shall complete any required mitigation,
excluding monitoring, prior to, or simultaneous with, any authorized impacts.
All mitigation shall include a permanent restriction on the use of the
mitigation site in a form approved by the Division, including but not limited
to a recorded notice of land use restrictions, conservation easement, or other
equivalent mechanism.
2. Acceptable
mitigation mechanisms include any combination of permittee-responsible
mitigation, in-lieu fee programs, mitigation banks, or other mechanisms that
are reasonably assured to result in no overall net loss of resource values from
existing conditions.
3. Acceptable
mitigation methods are prioritized in the following order: restoration,
enhancement, preservation, creation, or any other measures that are reasonably
assured to result in no net loss of resource values from existing
conditions.
4. The Division will
evaluate resource value compensation through the use of an appropriate
quantitative assessment or other defensible scientific method, and where
applicable will account for temporal loss of resource values. The Division will
use a watershed prioritization approach to evaluate proposed mitigation sites.
Mitigation should occur as close to the impact location as practicable,
prioritized as follows:
(i) Projects providing
an increase in resource values to degraded streams or wetlands on site or
within the immediate impact area;
(ii) Projects providing an increase in
resource values to degraded streams or wetlands within the HUC-12 in which the
impact is located;
(iii) Projects
providing an increase in resource values to degraded streams or wetlands within
the HUC-8 in which the impact is located;
(iv) Projects providing an increase in
resource values to degraded streams or wetlands outside the HUC-8 in which the
impact is located; or
(v) A
combination of any of the above activities.
Where appropriate, the Division may apply a multiplier based
on items (i) through (v) of this part.
5. All mitigation plans shall include a
monitoring and reporting program to document timely achievement of successful
mitigation and remedial actions to correct any deficiency.
6. Mitigation for impacts to Tennessee
streams and wetlands shall occur in Tennessee.
(b) Mitigation of streams.
Mitigation for impacts to streams must be developed in a
scientifically defensible manner approved by the Division that demonstrates a
sufficient increase in resource values to compensate for permitted impacts. At
a minimum, all new or relocated streams must include a vegetated riparian zone,
demonstrate lateral and vertical channel stability, and have a natural channel
bottom. All mitigation watercourses must maintain or improve flow and
classified uses after mitigation is complete.
(c) Mitigation of Wetlands.
1. Prioritization of mitigation site
selection for wetland impacts may also be based on U.S. EPA Level III
ecoregions.
2. The ratio of acres
required for wetland mitigation should not be less than 2:1 for wetland
restoration; 4:1 for wetland creation and enhancement; and 10:1 for wetland
preservation. Applicants may propose and utilize, subject to the Division's
approval, best professional judgment ratios. The best professional judgment
ratios shall be based on the resource values and functions of the affected
wetland, anticipated resource value of the proposed mitigation, temporal loss,
and the likelihood of success of the proposed mitigation.
(8) Duration and Renewal of
Permits.
(a) Each permit issued shall have a
fixed term not to exceed five (5) years.
(b) Renewal of permits is not required for
one-time alterations such as construction, as long as the alterations,
mitigation, and monitoring are completed within the time limit established by
permit. Any permittee that has not completed the alteration authorized by the
permit, or the mitigation and monitoring required by the permit, must apply for
renewal at least ninety (90) days prior to the expiration date.
(c) For ongoing alterations, such as water
withdrawals, any permittee who wishes to continue the permitted activity after
the expiration date of the permit must make application for renewal at least
ninety (90) days prior to its expiration date. If an application for permit
renewal does not fall within subparagraph (4)(a)3 of this rule, the
Commissioner shall follow the procedures for public notice and participation
detailed in paragraph (4) of this rule, regarding each application for renewal
of the permit.
(9)
Permit Appeals.
(a) Permittees, applicants for
permits, and aggrieved persons meeting the criteria of subparagraph (9)(c) of
this rule who disagree with the denial, issuance, terms, or conditions of a
permit may seek review of the Commissioner's decision by the Board of Water
Quality, Oil and Gas pursuant to T.C.A. §
69-3-105(i)
and §
69-3-110.
(b) For permit modifications, only those
terms that were the subject of the modification may be appealed. For permit
renewals, only those terms that were changed in the permit renewal compared to
the preceding permit may be appealed.
(c) To be entitled to a review of the
Commissioner's permit decision, aggrieved persons shall:
1. Have submitted a written comment during
the public comment period on the permit;
2. Given testimony at a formal public hearing
on the permit; or
3. Attended a
public hearing as evidenced by completion of a Department of Environment and
Conservation Record of Attendance Card or other method as determined by the
Division.
(d) The basis
for the appeal for aggrieved persons may only include issues which:
1. Were provided to the Commissioner in
writing during the public comment period;
2. Were provided in testimony at a formal
public hearing on the permit; or
3.
Arise from any material change to conditions in the final permit from those in
the draft, unless the material change has been subject to additional
opportunity for public comment.
(e) All petitions for permit appeals shall be
filed with the Board of Water Quality, Oil and Gas within 30 days after the
date that public notice of the permit issuance, denial, or modification is
given by way of posting the notice on the Division's website. All petitioners
shall specify the basis for their appeal, and state a claim for relief based on
an alleged violation of the Act or the rules promulgated thereunder. Aggrieved
persons shall specify facts sufficient to establish that they have satisfied
the criteria of subparagraphs (9)(c) and (9)(d) of this rule and otherwise have
standing to appeal.
(f) Any action
taken by the Commissioner regarding a permit remains in effect unless and until
an order of the Board of Water Quality, Oil and Gas or a reviewing court
becomes final.
Authority:
T.C.A. §§
4-5-201,
et seq., and 69-3-101, et seq.
