Environmental Law Matters

The Tennessee Department of Environment and Conservation ("TDEC") is soliciting comments on its new Antidegradation Guidance Document. The document, dated July 19, 2016, was made public January 5, 2016. TDEC is requesting comments by February 17, 2016. The Guidance Document was prepared by a Massachusetts company, Industrial Economics, Incorporated.

The Guidance Document is not developed or promulgated by the Board of Water Quality, Oil and Gas ("Board"), which is the entity charged with establishing rules governing water quality standards. The Board promulgated the antidegradation rules as part of overall state water quality standards adopted by the Board. The Guidance Document is purportedly developed to assist in implementation of the rules based upon economic measures. According to the Guidance Document:

The framework is based on a set of core economic concepts that allow for a sound and consistent procedure. At the center of this procedure is: (1) an application form for the applicant; and (2) a project evaluation form and database of information to assist TDEC in verifying application information and aid in the social and economic importance determination. This guidance document provides the conceptual and procedural background for these forms and the database.

The Board's antidegradation rules require persons to evaluate alternatives to a discharge, withdrawal, or habitat alteration when seeking to lower water quality more than a de minimis amount in waters with available parameters or that are Exceptional Tennessee Waters. If reasonable alternatives to degradation are not feasible, then the applicant must demonstrate that the degradation is necessary to accommodate important economic or social development in the area and will not violate the water quality criteria for uses existing in the receiving waters. Where more than de minimis degradation is proposed for Exceptional Tennessee Waters, the rules prohibit the issuance of the permit pending resolution of public comment and opportunity for public involvement,

The Board rules require the use of a number of EPA forms (also known as the alphabet soup of forms) to document the alternatives analysis and social/economic benefit information. However, the rules also allow the Department to request other or alternative information as necessary. As a result, a number of programs within the Division of Water Resources have used different forms to meet their needs. The Guidance Document does not use any of the EPA forms set out in the Board rules, but states that its forms are based on EPA guidelines. The Guidance Document does not discuss how TDEC determines de minimis levels nor does it discuss the additional procedural aspects related to Exceptional Tennessee Waters. The Guidance Document is an economic model designed to elicit economic information that can be compared to benchmarks by TDEC.