Rules & Regulations of the State of Tennessee
Title 0400 - Environment and Conservation
Subtitle 0400-40 - Water Resources (WPC)
Chapter 0400-40-08 - Rules and Regulations Applied To T.C.A. Section 69-1-117
Section 0400-40-08-.03 - PERMITS
Universal Citation: TN Comp Rules and Regs 0400-40-08-.03
Current through September 24, 2024
(1) Purpose of a Permit:
Under the Act, it is not lawful, without a permit, to authorize, undertake, or engage in any activity which has or is likely to have the effect of impairing or obstructing the navigability of any river, lake, stream or watercourse within the state which has been adjudicated and held to be navigable in the technical or legal sense pursuant to T.C.A. § 69-1-101 et seq. and is not subject to the Rivers and Harbors Act, 33 U.S.C., § 401 et seq. The Act is intended to delimit permittable structures and activities. A permit under the Act is designed to define and impose circumstances and conditions necessary to prevent any encumbrance to the navigability of navigable waters which may otherwise result from those structures or activities.
(2) Application:
(a) Except as otherwise provided in these
regulations, a person who plans to engage or who is engaging in an activity
below ordinary high water which may affect the course, location or condition of
navigable waters must make application in writing to the Commissioner for a
permit, or for modification of an existing permit.
(b) Applicants must complete and submit
standard application forms supplied by the Commissioner together with such
engineering reports, plans and specifications as are required. The Commissioner
may subsequently request additional information as he deems necessary in order
to make the permit decision.
(c)
All activities which the applicant plans to undertake which are reasonably
related to the same project for which a permit is required under the Act should
be included in the same application.
(d) The Commissioner may reject, as
incomplete, any application which does not provide all information requested on
the standard application form or does not comply with subparagraph (c) of this
paragraph.
(3) Notice and Public Participation:
(a) Each completed
application shall be evaluated and a tentative determination of whether to
issue or deny a permit shall be made. If a tentative determination is made to
issue a permit, a draft permit shall be prepared that includes a proposed
schedule of completion, including interim dates and requirements, and a brief
description of any other proposed special conditions.
(b) In order to inform interested and
potentially interested persons of a proposed activity and of the tentative
determinations regarding it, public notice shall be circulated within the
geographical area of the proposed activity. Upon receipt of a complete
application and after a determination has been made that a permit is required,
any of the following methods for distribution may be employed:
1. Posting in and public places within the
municipality nearest the premises in which the activity is proposed;
or
2. Posting near the entrance to
the applicant's premises and in nearby places; or
3. Publishing in local newspapers and
periodicals, or, if appropriate, in a daily newspaper of general
circulation.
(c) A copy
of the public notice and accompanying descriptive information shall be sent to
any person who specifically requests one. In addition, a copy shall be sent to
any state whose waters may be affected by the proposed activity: to any
interstate agency having water quality control or navigation authority over
affected waters; to the appropriate District Engineer of the U.S. Army Corps of
Engineers; and to other State and Federal agencies. If so requested, the State
or Interstate agency shall be provided a copy of the permit application and a
copy of the proposed permit. The Commissioner shall send a copy of each notice
of application and accompanying descriptive information within the state or a
certain geographical area thereof to those persons who have requested the
addition of their names to a mailing list. The Commissioner may annually purge
the mailing list of those persons who do not renew their requests.
(d) Public notice of applications shall
include the following:
1. Name, address, and
phone number of the Division;
2.
Name and address of the applicant(s);
3. Written description of the proposed
activity together with maps, drawings, or other appropriate means to describe
the nature of the proposed activity;
4. Name of the waterway at which the activity
is proposed and a description of the location of the activity within or
proximity to the waterway;
5. A
statement of the tentative determination to issue or deny a permit for the
activity described in the application;
6. Address and phone number of the premises
at which interested persons may obtain further information, request a copy of
the draft permit and inspect and copy forms and related documents.
(e) Interested persons may submit
written comments on the tentative determinations within either 15 days of
public notice or such greater period as the Commissioner allows. All written
comments received before the comment deadline shall be retained and considered
in the final determination. Full consideration and appropriate weight will be
given to all comments, including those of federal, state, and local agencies
and other experts on matters within their expertise.
(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 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
subparagraph (c) of this paragraph, and by publishing in a local newspaper. 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.
(4) Circumstances, Conditions and Limitations of Permits:
(a) A permit under the Act may authorize both
the activity and the resulting use.
(b) The Commissioner may add special
conditions to a permit when such conditions are necessary to satisfy legal
requirements and to otherwise satisfy the stated purpose of the Act. Permit
conditions will be directly related to the impacts of the proposal, appropriate
to the scope and degree of those impacts, and enforceable.
(c) The Commissioner may suspend, modify or
revoke a permit if he determines that the applicant has not complied with any
of the conditions or limitations set forth in the permit, or has exceeded the
scope of the work set forth in the application. Unauthorized modifications or
alterations to a permitted structure or activity are unlawful and may
invalidate the permit.
(d)
§
401 Water Quality Certification of any activity which requires a Department of
the Army permit for the discharge of dredged or fill material under § 404
of the Clean Water Act will serve as a permit under this Chapter.
(e) Any activity or structure which was
commenced before July 1, 1986, does not need a permit under this Act.
(f) The decision whether to issue a permit
for an activity or structure will be based upon an evaluation of the probable
impacts, including cumulative impacts, of the proposed activity and its
intended use on navigability. All factors which may be relevant to the proposal
must be considered.
(g) A riparian
landowner's general right of access to navigable waters is subject to the
general public's right of navigation on the water surface. Proposals which
create an undue hindrance to use of, or access to navigable waters, will be
deterred as contrary to the public interest.
(h) The applicant's signature on an
application is an affirmation that the applicant possesses or will possess the
requisite property interest to undertake the proposed activity. A permit under
the Act does not convey any property rights, either in real estate or material,
or any exclusive privileges.
(i)
Applications to protect property from erosion will generally be permitted.
However, if the protective structure results in an interference to navigation,
or is otherwise contrary to the public interest, then an attempt to define and
impose reasonable alternative methods to protect the property from erosion will
be accomplished by the Commissioner.
(j) The primary responsibility for
determining zoning and land use matters rests with local government. It is the
responsibility of the applicant to determine and comply with zoning and land
use requirements.
(k) The applicant
shall have the burden of demonstrating that the proposed activity will comply
with the requirements of the Act.
(l) The Commissioner may deny a permit
application if the proposed activity would result in an unreasonable hindrance
to navigation.
(m) An activity
requiring a permit under these rules may also require a permit pursuant to the
Tennessee Water Quality Control Act of 1977, T.C.A. §
69-3-101 et seq. The issuance of
such a permit is based upon different criteria than those of this Act and these
rules. Therefore, issuance of a permit under these rules has no effect on
whether a permit under T.C.A. §
69-3-101 et seq. will be
issued.
(n) A permit shall continue
in effect until it expires or is suspended or revoked.
(o) A permit for a structure or other
activity of a permanent nature will normally have no expiration date. However,
where a temporary structure is authorized, the permit will be of limited
duration with a definite expiration date.
(p) A permit for construction work for a
structure which requires a permit of indefinite duration will specify a time
limit for completing the activity. A permit may also specify the date by which
the activity must be started normally within one year of from the date of
issuance. The date will be established by the Commissioner and will provide a
reasonable period based upon the scope and nature of the activity
involved.
(q) An extension of time
of a permit for an activity or structure of a temporary nature may be granted
by the Commissioner. A permit will expire if the permittee fails to request and
receive an extension of time. A request for an extension of time will be
processed in accordance with the regular procedures of paragraphs (2) and (3)
of this rule, including public notice, except that such processing is not
required where the Commissioner determines that there have been no significant
changes in the attendant circumstances since the permit was issued.
(5) Reelfoot Lake
(a) For the purpose of this rule, the natural
water levels of the navigable stream Reelfoot Lake are delineated as follows:
1. The ordinary low water mark is two hundred
eighty-two and four-tenths feet (282.4') mean sea level.
2. The full pool level is two hundred
eighty-three and six-tenths feet (283.6') mean sea level.
3. The ordinary high water mark is two
hundred eight-five feet (285') mean sea level.
(b) Structures which are located above normal
full pool elevation (283.6' msl) but below ordinary high water (285' msl) are
authorized by this rule.
(c) Duck
blinds authorized by the Tennessee Wildlife Resources Agency pursuant to T.C.A.
§§
70-1-206 and
70-4-107 are authorized by this
rule.
(6) Review of Permit Denials, Terms and Conditions: Any applicant who is denied a permit or who disagrees with the terms or conditions imposed in the permit is entitled to review of the Commissioner's decision. Any action by the Commissioner regarding a previously issued permit, such as modification or revocation of an existing permit, may also be appealed. Such appeals may be perfected by filing a request for a hearing with the Commissioner's action. Such appeals shall be conducted in accordance with the Tennessee Uniform Administrative Procedures Act T.C.A. §§ 69-3-110 and 4-5-301 et seq.
Authority: T.C.A. §§ 69-1-117 and 4-5-201 et seq.
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