Section 0400-40-07-.04 - PERMITS(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; and8. 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; and7. 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; and12. 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; or3. 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; or3. 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.Tenn. Comp. R. & Regs. 0400-40-07-.04
Original rule filed September 17, 2013; effective December 16, 2013. Rule originally numbered 1200-04-07. Amendments filed June 13, 2019; effective 9/11/2019.Authority: T.C.A. §§ 4-5-201, et seq., and 69-3-101, et seq.