There has been an increase in the number and expansion of administrative and legislative proposals and in the scope of regulatory activities of the Tennessee Department of Environment and Conservation over the last 18-24 months, particularly with regard to water and solid waste disposal.
Generally, these proposals and activities have treated municipalities poorly. For example: fees and surcharges have been increased; a water bill was proposed that would have passed on millions in costs to local government (See SB3044/HB2669 below); irregularities in sanitary survey scores that have resulted in fines and additional costs to cities; regulatory decisions regarding the classification of streams; increase in the frequency of fines; and a proposal that would mandate local government reduce waste in landfills without providing any state funding.
Therefore, the Executive Committee recommends that the Board approve the following directive to the staff:
- Attempt to identify and quantify the proposals and regulatory actions that have adversely affected municipalities; and
- Develop and present to the Board a list of recommendations for addressing TDEC's activities.
SB3044(Berke)/HB2669(McDonald):
In 2008. the Governor's office worked with TDEC to develop a new comprehensive bill for water planning. TML encouraged a comprehensive bill, and asked to be included in the process - we were not. It was only after the bill has been drafted that TML was asked to take a look at it. Immediately, we recognized the many harmful affects of this legislation:
- 143 municipalities (41% of the state) are required by this bill to submit 3 separate water-related proposals to TDEC: 1) a water supply plan; 2) an emergency preparedness plan; and 3) a water conservation plan
- This is done in exchange for preference with regards to the distribution of grants by TDEC and ECD.
- Grants TDEC unlimited and unspecified authority to write the criteria for judging the plans after the bill is passed (through regulatory process)
- Cities required to implement TDEC-mandated changes within 12 months, and if cities fail to submit plans or to implement changes required by TDEC, then city is subject to civil penalties
- Gives TDEC authority to write and implement regional water plans and requires city systems to conform to such plans, and if city fails to conform to this regional plan, then the city loses access to TDEC water loans/grants as well as ECD grants and FastTrack grant program
- This moves from local control to statewide control of all municipal water systems
- Establishes TDEC as unilateral authority that supersedes the decisions of the local governing body and violates local control – everything must be approved by TDEC and conform to TDEC established plans – none of which are spelled out in the bill (established by rule after enactment).
- Offers cities no assurance of any funds to help implement the mandated system changes
The Bottom line - This would force municipalities affected to increase costs to ratepayers or increaes property taxes to implement TDEC-mandated changes.
Thankfully, this bill was stopped in subcommittees this past session.
Current Status
Because of the recent legislative attemptsy by TDEC, TML is concerned that the recommendations from the Water Quality Control Act Study Committee may be utilized by the Tennessee Department of Environment and Conservation (TDEC) to launch an effort to overhaul the Tennessee Clean Water Act and to expand its regulatory authority into areas that would impact municipal oversight and operational authority. TML is monitoring this issue.
Background
TDEC has come under fire for being overzealous in its regulation of streams and ditches in areas that are normally dry most of the year. While well-intentioned, the department’s regulatory activities have created a burden for local governments and private citizens, and often fail to strike a proper balance between the enforcement of state regulatory standards and municipal oversight and operational responsibilities.
For example, if a municipality uses a backhoe to clean out a ditch following a heavy rainfall in an area that is normally dry most of the year, the municipality may be cited by TDEC for altering the state water supply without an Aquatic Resource Alteration Permit (ARAP), which could lead to fines, court action, or administrative action before the state Water Quality Control Board.
A number of situations (similar to the example) prompted lawmakers to introduce SB 1253/ HB 865 (Burchett/ Harrison), which created a joint study committee (the Tennessee Water Quality Control Act Study Committee) to review the state’s water quality plan, the current definition of “waters of the state,” the current conditions of waters of the state’s waters, and applicable state and federal laws.
The committee is made up of eight (8) members:
- the chair of the Senate Environment, Conservation, and Tourism Committee and three (3) additional senators appointed by the speaker of the Senate; and
- the chair of the House Conservation and Environment Committee and three (3) additional representatives appointed by the speaker of the House of Representatives.
The committee must issue a report to the Senate and House Environment committees no later than February 1, 2008. It is anticipated that this report will create the basis for a complete overhaul of the Tennessee Clean Water Act next year, and there is potential for TDEC to expand its regulatory authority into areas that it should not regulate.
