Environmental Law Matters

The commissioners of the Tennessee Department of Environment and Conservation (TDEC) and the Tennessee Department of Agriculture (TDA) recently responded to EPA Administrator Scott Pruitt's request to States for comments regarding the definition of waters of the United States (WOTUS). In particular, the Administrator sought input as to how to define "relatively permanent" waters and "wetlands with continuous surface connections" consistent with the Plurality Opinion by Justice Scalia in Rapanos v. U.S. The request by Administrator Pruitt is consistent with President Trump's Executive Order directing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to review the so-called Clean Water Rule promulgated by EPA and the USACE and to publish for notice and comment a proposed rule rescinding or revising that rule.

In a June 19, 2017, letter to Administrator Pruitt, the two commissioners recommended that "relatively permanent waters" be defined the same way that Tennessee defines "streams." Tennessee defines a stream as any watercourse that is not a "wet weather conveyance." A wet weather conveyance is defined by state statute (Tenn. Code Ann. § 69-3-102) as:

. . . [M]an-made or natural watercourses, including natural watercourses that have been modified by channelization:

(A) That flow only in direct response to precipitation runoff in their immediate locality;

(B) Whose channels are at all times above the groundwater table;

(C) That are not suitable for drinking water supplies; and

(D) In which hydrological and biological analyses indicate that, under normal weather conditions, due to naturally occurring ephemeral or low flow there is not sufficient water to support fish, or multiple populations of obligate lotic aquatic organisms whose life cycle includes an aquatic phase of at least two (2) months.

This definition was adopted in 2009 and is widely accepted by both non-governmental organizations and the industry. As required by the statute, the Board of Water Quality, Oil and Gas (Board) promulgated rules that provide criteria for identifying streams known as "hydrologic determinations." The Commissioner of TDEC developed guidance providing instructions and examples for proper application of the rules.

A wet weather conveyance is by definition not a relatively permanent water. In addition, the Board has not designated any classified uses for wet weather conveyances. They are the quintessential "state waters." A wet weather conveyance is identified by a process that examines hydrologic and ecologic factors by "primary" and "secondary indicators." One primary indicator, for example, is the presence of at least two populations of specific obligate lotic aquatic organisms. This primary indicator shows that the watercourse is a stream, and, therefore, a relatively permanent water because such organisms will only survive in flowing water throughout their aquatic phase. When a primary indicator is not identified, secondary indicators must be evaluated and scored based on the presence or absence of those secondary indicators. A score less than 19 is a wet weather conveyance and not a stream.

The commissioners acknowledge that the Tennessee method may not work for other areas in the country; however, they do believe a similar approach based on regionally-based methodologies would provide the EPA and USACE with a reasonable approach to defining jurisdictional streams.