Chapter 1
Watercourses

Part 1
General Provisions

69-1-101. Navigable waters are highways.

All navigable waters are public highways, including those declared navigable by special law.

Code 1858, § 1299; Shan., § 1808; Code 1932, § 3074; T.C.A. (orig. ed.), § 70-101.

Law Reviews.

Water Rights in Tennessee (Mahlon L. Townsend), 27 Tenn. L. Rev. 557.

Attorney General Opinions. This section does not provide the commissioner with investigative authority under the Tennessee Water Quality Control Act, OAG 04-035, 2004 Tenn. AG LEXIS 35 (3/09/04).

Determination of navigability and ownership of land beneath a river.  OAG 11-75, 2011 Tenn. AG LEXIS 77 (10/21/11).

NOTES TO DECISIONS

1. Navigability.

Though the question of the navigability of a stream is one of fact for the jury, still it is not error for the court to charge the statutes relating to the navigability and obstruction of streams, especially where it is clear that the stream in question is navigable, independently of statute. Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900).

A river is navigable where occasionally, during good tides, it is used for steamboat navigation by light draft steamboats. Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900).

A stream may be navigable in the technical sense, though its navigability has never been declared or recognized by statute, state or federal. Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900).

The crucial test in determining the navigability of a stream is whether it is inherently and naturally navigable at the time of the determination, and not whether it is possible to be made so by artificial means, and a vast expenditure of money, at some remote period of the future. Webster v. Harris, 111 Tenn. 668, 69 S.W. 782, 1902 Tenn. LEXIS 27, 59 L.R.A. 324 (1902), overruled in part, State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913). But see State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913), overruling the case of Webster v. Harris, supra, on this point, to the extent of holding that a stream of sufficient capacity in depth, width, and volume, to be legally navigable, is not rendered legally nonnavigable by stumps and trees that may be removed.

2. —English Rule.

The English rule for determining whether a stream is navigable by the ebb and flow of the tide is not applicable to this state, and was never in force here. Elder v. Burrus, 25 Tenn. 358, 1845 Tenn. LEXIS 105 (1845); Stuart v. Clark's Lessee, 32 Tenn. 9, 1852 Tenn. LEXIS 1 (1852); Sigler v. State, 66 Tenn. 493, 1874 Tenn. LEXIS 170 (1874); Miller v. State, 124 Tenn. 293, 137 S.W. 760, 1910 Tenn. LEXIS 56, 35 L.R.A. (n.s.) 407 (1910); State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913).

3. —Departure from English Rule.

The adoption and substitution of the new and more appropriate criterion of a navigable river does not change or affect the principles of the common law in any other respects, regulating and defining the respective rights of the public and of the riparian proprietors in rivers of whatever character. Stuart v. Clark's Lessee, 32 Tenn. 9, 1852 Tenn. LEXIS 1 (1852).

4. “Low Watermark” Defined.

The ordinary low watermark may be defined to be the usual and common or ordinary stage of the river, when the volume of water is not increased by rains or freshets, nor diminished below such usual stage or volume by long continued drouth, to extreme low watermark. Nance v. Womack, 2 Shan. 202 (1877).

5. Technically Navigable Streams.

The term “navigable” has a technical or legal sense, to be distinguished from its common acceptation, and, when applied to streams in its technical or legal sense, means such as are capable, in the ordinary stage of the water, of navigation ascending and descending, by such vessels as are employed in the ordinary purposes of commerce, whether foreign or inland, and whether stream or sail vessels. Stuart v. Clark's Lessee, 32 Tenn. 9, 1852 Tenn. LEXIS 1 (1852); Sigler v. State, 66 Tenn. 493, 1874 Tenn. LEXIS 170 (1874); Holbert v. Edens, 73 Tenn. 204, 1880 Tenn. LEXIS 111, 40 Am. Rep. 26 (1880); Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900); Webster v. Harris, 111 Tenn. 668, 69 S.W. 782, 1902 Tenn. LEXIS 27, 59 L.R.A. 324 (1902), overruled in part, State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913); Miller v. State, 124 Tenn. 293, 137 S.W. 760, 1910 Tenn. LEXIS 56, 35 L.R.A. (n.s.) 407 (1910).

6. —Illustrations.

Streams have been adjudicated and held to be navigable in the technical or legal sense, as follows:

Cumberland River. Elder v. Burrus, 25 Tenn. 358, 1845 Tenn. LEXIS 105 (1845); Martin v. Nance, 40 Tenn. 649, 1859 Tenn. LEXIS 191 (1859); Holbert v. Edens, 73 Tenn. 204, 1880 Tenn. LEXIS 111, 40 Am. Rep. 26 (1880); Posey v. James, 75 Tenn. 98, 1881 Tenn. LEXIS 82 (1881). As to Cumberland River commission for its improvement as a navigable stream, see Acts 1881, ch. 47, and Acts 1889, ch. 321.

French Broad River and Holston or Tennessee River at and above their junction. Goodwin v. Thompson, 83 Tenn. 209, 1885 Tenn. LEXIS 44 (1885).

Holston River above the county bridge at Bluff City in Sullivan County was declared to be unnavigable by Acts 1899, ch. 118. Holston River above the mouth of the north fork of the river at Kingsport in Sullivan County was declared to be unnavigable by Acts 1907, ch. 307; but this act was repealed by Acts 1911, ch. 24.

Reelfoot Lake is of sufficient depth, width, and volume, to make it navigable in the strict legal sense. State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913), overruling the holding that Reelfoot Lake is navigable in the ordinary sense only, made in the case of Webster v. Harris, 111 Tenn. 668, 69 S.W. 782, 1902 Tenn. LEXIS 27, 59 L.R.A. 324 (1902), overruled in part, State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913).

7. —Rights of Riparian Owners.

The riparian owners of land on a stream navigable in the technical sense have title to the ordinary low watermark only, and not to the center of the stream, and a line calling for the meanders of a navigable river must be run accordingly. Elder v. Burrus, 25 Tenn. 358, 1845 Tenn. LEXIS 105 (1845); Stuart v. Clark's Lessee, 32 Tenn. 9, 1852 Tenn. LEXIS 1 (1852); Martin v. Nance, 40 Tenn. 649, 1859 Tenn. LEXIS 191 (1859); Nance v. Womack, 2 Shan. 202 (1877); Holbert v. Edens, 73 Tenn. 204, 1880 Tenn. LEXIS 111, 40 Am. Rep. 26 (1880); Posey v. James, 75 Tenn. 98, 1881 Tenn. LEXIS 82 (1881); Goodwin v. Thompson, 83 Tenn. 209, 1885 Tenn. LEXIS 44 (1885); Cox v. Howell, 108 Tenn. 130, 65 S.W. 868, 1901 Tenn. LEXIS 15, 58 L.R.A. 487 (1901); Stockley v. Cissna, 119 F. 812, 1902 U.S. App. LEXIS 4728 (6th Cir. 1902); Stockley v. Cissna, 119 Tenn. 135, 104 S.W. 792, 1907 Tenn. LEXIS 5 (1907); State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913).

8. —Obstructions.

All navigable streams are public highways under the common law, without the aid of statute, and the common law forbids the obstruction of navigable streams to the detriment of navigation. Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900).

9. Navigability in Ordinary Sense.

A stream not navigable in the technical sense may yet be navigable in the common acceptation of the term, as where, in certain stages of the water, it may be of sufficient depth, naturally, for valuable floatage, as for rafts, flatboats, and perhaps small vessels of lighter draft than the ordinary. Stuart v. Clark's Lessee, 32 Tenn. 9, 1852 Tenn. LEXIS 1 (1852); Sigler v. State, 66 Tenn. 493, 1874 Tenn. LEXIS 170 (1874); Holbert v. Edens, 73 Tenn. 204, 1880 Tenn. LEXIS 111, 40 Am. Rep. 26 (1880); Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900); Webster v. Harris, 111 Tenn. 668, 69 S.W. 782, 1902 Tenn. LEXIS 27, 59 L.R.A. 324 (1902), overruled in part, State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913); State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911).

A stream (Powell's River), unsuited for the navigation of steamboats or sea vessels, and never used for such purposes, but navigable for floating flatboats and rafts down the stream during freshets and high water, though not during an ordinary state of water, is not navigable in the technical or legal sense, but is navigable in the ordinary sense. Holbert v. Edens, 73 Tenn. 204, 1880 Tenn. LEXIS 111, 40 Am. Rep. 26 (1880).

10. —Illustrations.

Streams have been adjudged to be navigable in the ordinary sense or in the common acceptation of that term, as follows: Sigler v. State, 66 Tenn. 493, 1874 Tenn. LEXIS 170 (1874) Big Creek; Powell's RiverHolbert v. Edens, 73 Tenn. 204, 1880 Tenn. LEXIS 111, 40 Am. Rep. 26 (1880); Hiwassee River, Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900).

11. —Riparian Owners and Public.

While the right of property in the bed of a stream, navigable in the ordinary sense, but not navigable in the technical or legal sense, is vested in the riparian proprietors, and in that respect it is to be regarded as a private stream or river, still the public have an easement therein and a right to the free and uninterrupted use and enjoyment for all the purposes of transportation and navigation to which it is naturally adapted. Stuart v. Clark's Lessee, 32 Tenn. 9, 1852 Tenn. LEXIS 1 (1852); Sigler v. State, 66 Tenn. 493, 1874 Tenn. LEXIS 170 (1874); Holbert v. Edens, 73 Tenn. 204, 1880 Tenn. LEXIS 111, 40 Am. Rep. 26 (1880); Goodwin v. Thompson, 83 Tenn. 209, 1885 Tenn. LEXIS 44 (1885); Webster v. Harris, 111 Tenn. 668, 69 S.W. 782, 1902 Tenn. LEXIS 27, 59 L.R.A. 324 (1902), overruled in part, State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913); Stockley v. Cissna, 119 Tenn. 135, 104 S.W. 792, 1907 Tenn. LEXIS 5 (1907); State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913).

12. “Nonnavigable Stream” Defined.

A stream which that not of sufficient depth, naturally, for valuable floatage, such as rafts, flatboats, and small vessels of lighter draft than the ordinary, is not navigable in any sense. The fact that a stream of water has a capacity for transportation valuable to the public, such as the transportation of saw logs to a river, does not make it navigable, even in the ordinary sense. Stuart v. Clark's Lessee, 32 Tenn. 9, 1852 Tenn. LEXIS 1 (1852); Irwin v. Brown, 3 Shan. 309, 12 S.W. 340 (1889); Webster v. Harris, 111 Tenn. 668, 69 S.W. 782, 1902 Tenn. LEXIS 27, 59 L.R.A. 324 (1902), overruled in part, State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913); Miller v. State, 124 Tenn. 293, 137 S.W. 760, 1910 Tenn. LEXIS 56, 35 L.R.A. (n.s.) 407 (1910).

It has been adjudged and held that Hind's Creek is not navigable in any sense. Irwin v. Brown, 3 Shan. 309, 12 S.W. 340 (1889); Webster v. Harris, 111 Tenn. 668, 69 S.W. 782, 1902 Tenn. LEXIS 27, 59 L.R.A. 324 (1902), overruled in part, State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913).

13. —Rights of Riparian Owners.

If the stream be so shallow as to be unfit for transportation and commerce, because not navigable even in the ordinary sense, both the right of property and the use are wholly and absolutely in the adjoining or riparian lands. Stuart v. Clark's Lessee, 32 Tenn. 9, 1852 Tenn. LEXIS 1 (1852); Holbert v. Edens, 73 Tenn. 204, 1880 Tenn. LEXIS 111, 40 Am. Rep. 26 (1880); Stockley v. Cissna, 119 Tenn. 135, 104 S.W. 792, 1907 Tenn. LEXIS 5 (1907).

69-1-102. Opening and cleaning navigable streams.

The county legislative body is authorized to make contracts for opening or cleaning out any navigable streams within the county, and for keeping them free from obstructions.

Code 1858, § 1300 (deriv. Acts 1835-1836, ch. 29, § 1); Shan., § 1809; Code 1932, § 3075; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-102.

Cross-References. County legislative body may permit or remove improvements, § 69-1-111.

69-1-103. Overseers appointed for navigable stream districts.

A county may lay off a navigable stream or any portion of the stream in the county into a district, and appoint overseers to the district, as in the case of public roads.

Code 1858, § 1301 (deriv. Acts 1784 (Oct.), ch. 14, § 16); Shan., § 1810; Code 1932, § 3076; T.C.A. (orig. ed.), § 70-103.

69-1-104. Working on streams as public roads.

When any watercourse is laid off into districts, hands shall be apportioned, the necessary instruments furnished, and the watercourse cleared out, obstructions removed, and the stream kept in good order by the overseer, under the same regulations and penalties in regard to overseers and hands as in the case of public roads.

Code 1858, § 1302 (deriv. Acts 1784 (Oct.), ch. 14, § 16); Shan., § 1811; Code 1932, § 3077; T.C.A. (orig. ed.), § 70-104.

69-1-105. Supervisor of water improvements — Duties.

Every county legislative body may appoint a supervisor to visit the improvements made on the navigable streams in the county, at least once in every year, and make diligent inquiry into all offenses committed in regard to the streams, and institute proceedings against such offenses.

Code 1858, § 1303; Shan., § 1812; Code 1932, § 3078; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-105.

69-1-106. Compensation of supervisor.

The county legislative body shall allow the supervisor a reasonable compensation for services, to be paid out of any money in the county treasury.

Code 1858, § 1304; Shan., § 1813; Code 1932, § 3079; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-106.

69-1-107. Obstructing river — Penalty.

  1. Any person who obstructs the navigation of the main channel of any navigable river or other stream, by building mills, erecting dams or locks, in or across the same, unless authorized by law, or by any other means whatever, shall be liable to a penalty of two hundred fifty dollars ($250), one half (½) to the use of the person who sues for it and the other one half (½) to the use of the state.
  2. In addition to the civil penalty in subsection (a), such obstruction of the main channel of any navigable river or other stream is a Class C misdemeanor.

Code 1858, § 1305 (deriv. Acts 1819, ch. 63, § 4); Shan., § 1814; Code 1932, § 3080; T.C.A. (orig. ed.), § 70-107; Acts 1989, ch. 591, § 113.

Cross-References. Navigable stream, obstruction of not to be permitted by courts, § 54-13-102.

Navigation not to be interrupted, § 69-1-111.

Penalty for Class C misdemeanor, § 40-35-111.

Penalty for obstruction of navigability permitting requirements, § 69-1-117.

Vandalism, § 39-14-408.

NOTES TO DECISIONS

1. Temporary Obstructions as Nuisances.

Where, by its charter, a railroad company is authorized to build a bridge over a navigable stream, with the proviso that the navigation of such stream shall not be thereby obstructed, temporary obstructions, convenient but not absolutely necessary, maintained, during construction of the bridge, for a longer time than necessary, so as to prevent the passage of boats, are not authorized, and are obstructions within the meaning of the charter. Memphis & O.R.R. v. Hicks, 37 Tenn. 427, 1858 Tenn. LEXIS 29 (1858); Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271, 1891 Tenn. LEXIS 56 (1891); Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900).

2. Contributory Negligence of Complaining Party.

Where the statute forbids the obstruction, without limitation or exception, the question in relation to the temporary obstruction of streams and highways by improvements, unloading, or other acts, and the question how far the rashness or carelessness of the party complaining would exonerate the other party, are not necessary to be considered or examined; but if the injury had been to the boat, hands or cargo by the obstruction, the doctrine of contributory negligence would be appropriate. Memphis & O.R.R. v. Hicks, 37 Tenn. 427, 1858 Tenn. LEXIS 29 (1858).

3. Wharf Boat as Nuisance.

If navigation is not impeded by the erection of a wharf boat, it can be no injury to the public, and therefore would not be a nuisance. If the public advantage greatly overbalances any slight inconvenience that may be produced by the wharf boat, it is no nuisance. When a great public benefit results from the abridgment of the right of passage, the great public benefit makes that abridgment no nuisance. Pilcher v. Hart, 20 Tenn. 524, 1840 Tenn. LEXIS 12 (1840).

Whether the erection and maintenance of a wharf boat in a navigable stream is a nuisance or not is a question of fact for the jury to determine. Pilcher v. Hart, 20 Tenn. 524, 1840 Tenn. LEXIS 12 (1840); Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271, 1891 Tenn. LEXIS 56 (1891).

4. Benefit to a Few.

No amount of benefit conferred upon an indefinite number of private individuals, or upon a local community, can be admitted to countervail the public injury and inconvenience resulting from the obstruction of a navigable river. Gold v. Carter, 28 Tenn. 369, 1848 Tenn. LEXIS 90, 49 Am. Dec. 712 (1848).

69-1-108. Diverting water from main channel.

  1. No person, upon pretense of having a right to the flow of water through a sluice of a navigable watercourse, on which sluice such person has built a mill, shall divert the water from the main channel into the sluice, so as to obstruct or impede the navigation of the main channel.
  2. A violation of this section is a Class C misdemeanor.

Code 1858, § 1306; Shan., § 1816; Code 1932, § 3082; T.C.A. (orig. ed.), § 70-108; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Vandalism, § 39-14-408.

Law Reviews.

The Movement for New Water Rights Laws in the Tennessee Valley States (Robert H. Marquis, Richard M. Freeman and Milton S. Heath, Jr.), 23 Tenn. L. Rev. 797.

69-1-109. Temporary diversion from sluice.

The water of the sluice may be diverted into the main channel for the immediate passage of a boat for a time not exceeding one half (½) a day, so that the water is returned to the sluice in such manner as not to impair the profitable enjoyment of the mill.

Code 1858, § 1307; Shan., § 1817; Code 1932, § 3083; T.C.A. (orig. ed.), § 70-109.

69-1-110. Damages for diversion of stream.

Any person diverting any stream from its natural channel is liable to any party aggrieved for the damages sustained.

Code 1858, § 1308; Shan., § 1818; Code 1932, § 3084; T.C.A. (orig. ed.), § 70-110.

NOTES TO DECISIONS

1. Enjoining Nuisance.

There is an undoubted remedy at law for a nuisance, such as the overflow of a party's land by the erection and maintenance of a milldam, the diversion of a stream, or the impairment of a spring, but still, in cases where the injury is immediate and irreparable and constantly recurring, and where the remedy at law is imperfect, relief by perpetual injunction will be granted in chancery, without a preliminary trial and judgment at law, where the right is clear and the existence of the nuisance is manifest. Philips v. Stocket, 1 Tenn. 200, 1805 Tenn. LEXIS 36 (1805); Caldwell v. Knott, 18 Tenn. 209, 1836 Tenn. LEXIS 122 (1836); Vaughn v. Law, 20 Tenn. 123, 1839 Tenn. LEXIS 29 (1839); State v. Gainer, 22 Tenn. 39, 1842 Tenn. LEXIS 18 (1842); Wall & Co. v. Cloud, 22 Tenn. 181, 1842 Tenn. LEXIS 63 (1842); Clack v. White, 32 Tenn. 540, 1852 Tenn. LEXIS 113 (1852); Brew v. Van Deman, 53 Tenn. 354, 1871 Tenn. LEXIS 377 (Tenn. Oct. 21, 1871); Lassater v. Garrett & Brown, 63 Tenn. 368, 1874 Tenn. LEXIS 265 (1874); Naff v. Martin, 2 Shan. 451 (1877); Justice v. McBroom, 69 Tenn. 555, 1878 Tenn. LEXIS 138 (1878); Coulter v. Davis, 81 Tenn. 451, 1884 Tenn. LEXIS 57 (1884); Pierce v. Gibson County, 107 Tenn. 224, 64 S.W. 33, 1901 Tenn. LEXIS 74, 89 Am. St. Rep. 946, 55 L.R.A. 477 (1901); Cox v. Howell, 108 Tenn. 130, 65 S.W. 868, 1901 Tenn. LEXIS 15, 58 L.R.A. 487 (1901); Webster v. Harris, 111 Tenn. 668, 69 S.W. 782, 1902 Tenn. LEXIS 27, 59 L.R.A. 324 (1902), overruled in part, State ex rel. Cates v. West Tennessee Land Co., 127 Tenn. 575, 158 S.W. 746, 1913 Tenn. LEXIS 6 (1913); Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 83 S.W. 658, 1904 Tenn. LEXIS 30 (1904).

2. Prescriptive Right.

In an action for damages from water backed up by railroad embankment containing an insufficient culvert, the burden was on the railroad company claiming a prescriptive right to show when the culvert first proved insufficient, and to show that more than 20 years before the cause of action arose, the embankment and culvert actually caused overflows on plaintiff's land, and that such condition continued throughout that period. Davis v. Louisville & N. R. Co., 147 Tenn. 1, 244 S.W. 483, 1921 Tenn. LEXIS 66 (1922).

3. Landowner's Right to Divert Nonnavigable Stream.

The owner of land through which a nonnavigable stream flows has a right to divert the water from its natural channel for the purpose of working the machinery of a mill, provided he returns the water while still upon his own premises, to its natural channel. Webster v. Fleming, 21 Tenn. 518, 1841 Tenn. LEXIS 59 (1841).

4. Damages.

Where one party erects or raises a milldam on a stream below another party's land, which causes its waters to overflow his grounds and springs, and to create pools of stagnant waters upon or near to his premises, poisoning the atmosphere, generating diseases, and impairing health, a nuisance and an actionable injury are created. Neal v. Henry, 19 Tenn. 17, 1838 Tenn. LEXIS 5, 33 Am. Dec. 125 (1838).

A millowner, through whose land a nonnavigable stream flows, may maintain an action for damages against the owner of a mill, erected before that of his own and lower down on the stream, for overflowing the machinery of his mill. Webster v. Fleming, 21 Tenn. 518, 1841 Tenn. LEXIS 59 (1841).

5. Dam for United States.

The fact that a dam erected for the United States in navigable waters created unhealthful conditions by making stagnant pools of water did not make it a public nuisance, nor render the government or its contractor liable as for maintaining a nuisance. Chattanooga & Tenn. River Power Co. v. Lawson, 139 Tenn. 354, 201 S.W. 165, 1917 Tenn. LEXIS 112 (1917).

69-1-111. County may permit or remove improvements.

  1. The county legislative body may authorize milldams, fish traps, and other local improvements and erections in watercourses in the county, and fix the rates of toll or charge, under the limitations, restrictions, and conditions deemed proper, and remove them when the public interests require.
  2. The application for any of these purposes shall be by petition, in writing, stating the nature and object of the proposed improvement or erection, notice of which shall be given as prescribed in the case of toll bridges, ferries, and causeways.
  3. The county legislative body shall be satisfied that the preliminary notice has been given before acting on the application, and may then decree as the public interests seem to require.
  4. No milldam, fish trap, bridge, or other improvement shall be allowed so as to interrupt or in any way injure or impair the navigation of any navigable watercourse of the state.

Code 1858, §§ 1309-1312 (deriv. Acts 1835-1836, ch. 29, § 1); Shan., §§ 1819-1822; Code 1932, §§ 3085-3088; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), §§ 70-111 — 70-114.

Cross-References. Navigable streams, improvements permitted by courts not to obstruct, § 54-13-102.

Obstructing waterway, § 39-17-307.

NOTES TO DECISIONS

1. Obstructions Covered.

The prohibition does not refer to temporary obstructions allowable from necessity in particular cases. The statute contemplates that the bridge or other improvement itself shall not be of a character to interrupt, injure, or impair navigation. Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271, 1891 Tenn. LEXIS 56 (1891).

2. Prescription.

A prescriptive right to obstruct a navigable stream, as by an unauthorized bridge, cannot be acquired by the maintenance of the obstruction for any length of time, however great. Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900).

3. Burden of Proving Lawful Obstruction.

The general rule makes the obstruction of navigation unlawful; and the burden rests upon the defendant to establish all the facts necessary to constitute an exception. Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271, 1891 Tenn. LEXIS 56 (1891).

The state's grant of authority in a railroad charter to construct a line of railroad carries with it, by necessary implication, a right to build suitable bridges over the navigable streams crossed by the line. For the purpose of building such bridges, all temporary structures absolutely necessary in the construction, and without which the bridges cannot be erected, are not unlawful if they extend over no more of the stream at any time, and are continued for no longer period than the necessity of the case, under skillful management and diligent exertion of an adequate force of men and machinery, imperatively demands and requires. Cantrell v. Railway Co., 90 Tenn. 638, 18 S.W. 271, 1891 Tenn. LEXIS 56 (1891); Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900), but the temporary obstruction of a navigable stream in building a railroad bridge, authorized by implication, does not authorize any permanent obstruction. Railroad v. Ferguson, 105 Tenn. 552, 59 S.W. 343, 1900 Tenn. LEXIS 106, 80 Am. St. Rep. 908 (1900).

4. Presumed Permission.

Where milldam stood for more than 20 years, county's permission was presumed. Irwin v. Brown, 3 Shan. 309, 12 S.W. 340 (1889).

69-1-112. Commissioners of watercourses.

The county legislative body may, as often as necessary, appoint commissioners to:

  1. Examine the watercourses in the county, to see that the local erections allowed in the watercourses are conformable to law, and that one fourth (¼) of such watercourses, including the deepest portions, are left open for the free passage of fish;
  2. Lay off slopes of dams when necessary, determining the time they shall be left open; and
  3. Return a plan of the stream, and the falls, dams, and other erections on the stream, when deemed necessary.

Code 1858, § 1314 (deriv. Acts 1787, ch. 15, § 1; Shan., § 1826; Code 1932, § 3090; T.C.A., (orig. ed.), § 70-115.

Cross-References. Supervisor of water improvements — Duties and compensation, §§ 69-1-105, 69-1-106.

69-1-113. Forfeiture for obstructing stream.

Any person who obstructs for twenty-four (24) hours, in any way, that part of the stream directed to be left open, or fails to open slopes as the commissioners may judge necessary, forfeits twenty dollars ($20.00), one half (½) to go to the county, and the other one half (½) to any person suing for it.

Code 1858, § 1315 (deriv. Acts 1787, ch. 15, § 2); Shan., § 1827; Code 1932, § 3091; T.C.A. (orig. ed.), § 70-116.

Law Reviews.

The Movement for New Water Rights Laws in the Tennessee Valley States (Robert H. Marquis, Richard M. Freeman and Milton S. Heath, Jr.), 23 Tenn. L. Rev. 797.

69-1-114. Railroad drawbridges — Operation.

  1. Railroad companies in this state whose roads cross navigable watercourses in this state shall, upon signal being given by any steamboat for the opening of the draw of any railroad bridge, proceed immediately to open the draw and make ready for the passage of the boat; and as soon as the draw is open and ready, if in the nighttime, they shall hoist a large red light, not less than eight inches (8") in diameter, at least ten feet (10') above the tops of the gallows frame or gallow bitts of the draw; and they shall keep one (1) white light on each end of the draw as a signal that all is ready; and the light shall remain stationary until after the boat has passed.
  2. Any railroad company failing so to do shall forfeit for each and every such failure the sum of one hundred dollars ($100), to be recovered before any court of competent jurisdiction, one half (½) to go to the informer, and the other one half (½) to the common school fund of the state.

Acts 1869-1870, ch. 89, §§ 1, 2; Shan., §§ 1828, 1829; Code 1932, §§ 3092, 3093; T.C.A. (orig. ed.), §§ 70-117, 70-118.

69-1-115. Damages caused by canalizing rivers.

  1. Counties lying contiguous to or bordering upon any navigable river or rivers that are improved and canalized by the United States government, by the construction and maintenance of locks and dams so as to render such river or rivers navigable to boats of ordinary tonnage, are empowered through their respective county legislative bodies to assume, provide for and pay any and all actual damages caused, or that may be occasioned by the construction and maintenance of such locks and dams to the contiguous land or lands.
  2. For the payment of the respective owners of damage from overflow to their lands as authorized and provided in this section by the respective county legislative bodies of the counties in which such overflow causing the damage may exist, the respective county legislative bodies are empowered to pay such damages out of any moneys of the county not otherwise appropriated, or may levy a special tax for the damages upon the property and taxables in such county. Such damages may be assessed in the manner now authorized by law in condemnation cases of real estate.

Acts 1919, ch. 190, §§ 1, 2; Shan. Supp., §§ 1880a33, 1880a34; mod. Code 1932, §§ 3168, 3169; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), §§ 70-119, 70-120.

Cross-References. Execution on real property, § 16-15-804.

69-1-116. Eleemosynary institutions — Access to water.

Orphan asylums, houses for destitute children, reformatory institutions, industrial schools, asylums for the insane, homes for confederate or federal soldiers, national homes for disabled volunteer soldiers, and all eleemosynary institutions of like class chartered or incorporated under the laws of the state of Tennessee, or of the United States congress, dependent for support upon the public, have the right to acquire, by purchase or donation, springs of water, flowing streams, and water rights of lower riparian owners; and, further, the right and power to acquire, by purchase, donation, or condemnation, the riparian rights of lower owners of land through which flows the water of springs so purchased or donated, to the flow of water from the springs, rights-of-way through the lands of intervening property owners, when necessary for the purpose of conveying water by means of pipes and conductors, and suitable site or sites for pumping stations and reservoirs, all so as to procure a sufficient supply of potable and wholesome water for such institutions.

Acts 1903, ch. 289, § 1; Shan., § 1880a28; mod. Code 1932, § 3164; T.C.A. (orig. ed.), § 70-121.

69-1-117. Impairing or obstructing navigability of watercourses — Permits.

  1. Without a permit issued by the department of environment and conservation, no person shall authorize, undertake, or engage in any activity, practice, or project that has or is likely to have the effect of impairing or obstructing the navigability of any river, lake, stream or watercourse located within the state. The navigability of any river, lake, stream or watercourse shall be limited to those adjudicated and held to be navigable in the technical or legal sense pursuant to this part. Further, any river, lake, stream or watercourse subject to the Rivers and Harbors Act (33 U.S.C. § 401 et seq.), shall be exempt from the permit requirements of this section.
  2. Consistent with state common law and statutory law on navigability, the commissioner of environment and conservation shall promulgate rules, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, to establish and implement the permitting system required by subsection (a). Such rules shall establish procedures for obtaining such permits and shall delineate the circumstances, conditions, and limitations under which such permits may be issued. No permit shall be issued for any activity, practice, or project that would violate state common law or statutory law on the navigability of rivers, lakes, streams, and watercourses.
  3. The department shall investigate each reported, suspected, or observed violation of subsection (a), as well as each reported, suspected, or observed violation of state navigability law. Whenever a violation is found to exist, the department shall undertake appropriate administrative and legal measures to cause the violation to cease.
  4. A violation of subsection (a) is a Class A misdemeanor. A violation that continues into a successive day is regarded as a separate offense.

Acts 1986, ch. 818, § 1; 1989, ch. 591, § 1; 1992, ch. 693, § 1.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

Law Reviews.

Tennessee Water Law, You Never Miss the Water Till the Well Runs Dry (Vincent A. Sikora), 24 No. 5 Tenn. B.J. 12 (1988).

Attorney General Opinions. Regulation of Reelfoot Lake waterfowl blinds by wildlife agencies, OAG 98-007, 1998 Tenn. AG LEXIS 7 (1/9/98).

Part 2
Corps of Engineers Water Projects

69-1-201. Immunity from damages — Exceptions.

The state of Tennessee, its departments or agencies, or any governmental entity is hereby authorized, as required by the secretary of the army or the chief of engineers for projects for water resource development and conservation or other purposes, to agree to hold and save the United States free from damages due to the construction or operation and maintenance of such projects, except for damages due to the fault or negligence of the United States or its contractors.

Acts 1988, ch. 617, § 1.

69-1-202. “Governmental entity” defined.

“Governmental entity” means any political subdivision of the state of Tennessee, including, but not limited to, any municipality, metropolitan government, county improvement district, drainage district, levee district or special district duly created and existing pursuant to the constitution and laws of Tennessee, or any instrumentality of government created by any one (1) or more of the local governmental entities named in this section or by an act of the general assembly.

Acts 1988, ch. 617, § 2.

Chapter 2
Landing and Loading Facilities

69-2-101. Acquisition and maintenance of facilities.

  1. The department of transportation, acting through the commissioner of transportation, is authorized to acquire by purchase, condemnation, construction or otherwise, and to maintain and operate any public facilities the commissioner may deem suitable for the loading and landing of cargo wherever state highways intersect or parallel any navigable waters within or bounding the state.
  2. Such powers shall in no way interfere with present property rights of now existing ferry franchises.

Acts 1935, ch. 36, § 1; C. Supp. 1950, § 3252.1 (Williams, § 3260.1); impl. am. Acts 1959, ch. 9, § 3; impl. am Acts 1972, ch. 829, § 7; T.C.A. (orig. ed.), § 70-201.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mandamus, § 6.

69-2-102. Powers of commissioner.

In the acquisition, maintenance, and operation of the facilities authorized under this chapter, the commissioner has all the powers conferred by and shall be subject to all the provisions contained in title 54, chapters 1-5 insofar as such powers and provisions may be applicable to the acquisition, maintenance, and operation of the facilities.

Acts 1935, ch. 36, § 2; C. Supp. 1950, § 3252.2 (Williams, § 3260.2); modified; T.C.A. (orig. ed.), § 70-202.

Compiler's Notes. Former title 54, chapter 6, part 1, formerly referred to in this section, was repealed by Acts 1983, ch. 320. Former part 2, formerly referred to in this section, was transferred to title 54, chapter 4, part 4 in 1988. See the Compiler's Notes under title 54, ch. 6 for a more detailed analysis.

69-2-103. Rules and regulations.

The commissioner is authorized to perform any and all acts and to make such rules and regulations as may be appropriate for the purpose of carrying this chapter into full force and effect. Any violation of the rules and regulations made by the commissioner is a Class C misdemeanor.

Acts 1935, ch. 36, § 3; C. Supp. 1950, § 3252.3 (Williams, § 3260.3); T.C.A. (orig. ed.), § 70-203; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

69-2-104. Transportation department employees — Duties.

The commissioner may designate any employees of the department to perform services involved in the execution of this chapter, and such employees shall render such services without additional compensation.

Acts 1935, ch. 36, § 4; C. Supp. 1950, § 3252.4 (Williams, § 3260.4); impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1972, ch. 829, § 7; T.C.A. (orig. ed.), § 70-204.

69-2-105. Funds.

In order to carry out this chapter, the commissioner is authorized and directed to use, subject to the approval of the governor, any of the available funds set apart for the department that the commissioner deems appropriate for the funds, and such grants as may be made to the state of Tennessee by the United States or any agency, or instrumentality thereof or corporation owned thereby, for carrying out the purposes of this chapter.

Acts 1935, ch. 36, § 5; C. Supp. 1950, § 3252.5 (Williams, § 3260.5); impl. am. Acts 1959, ch. 9, § 3; impl. am. Acts 1972, ch. 829, § 7; T.C.A. (orig. ed.), § 70-205.

69-2-106. Cooperation of other agencies.

In executing this chapter, the commissioner is authorized to cooperate with and seek and accept the assistance of any subdivision, agency or instrumentality of the state, the United States and any agency or instrumentality thereof or corporation owned thereby.

Acts 1935, ch. 36, § 6; C. Supp. 1950, § 3252.6 (Williams, § 3260.6); T.C.A. (orig. ed.), § 70-206.

69-2-107. Purpose of chapter — Rights of United States.

The purpose of this chapter is declared to be to promote and facilitate traffic and commerce upon the waters of the state in the interest of its people, and to cooperate with and aid the United States in improving navigation upon such waters. In carrying out this chapter, due regard shall be had for the paramount rights of the United States government in the control of navigable waters.

Acts 1935, ch. 36, § 7; C. Supp. 1950, § 3252.7 (Williams, § 3260.7); T.C.A. (orig. ed.), § 70-207.

69-2-108. Wharves to be kept in repair.

  1. No owner, lessee, or such owner's or lessee's agent, in charge of a wharf upon any of the rivers of this state, where the same is kept or used for profit, shall be entitled to make and collect any charge whatever for wharfage, or the landing of boats, unless the wharf is, at the time of making such charge, in good repair, macadamized or cobblestoned. When it is not convenient to get stone, the owner of the wharf or bank may use such material as will put and keep the wharf or bank in repair.
  2. Failure upon the part of anyone having charge of such wharf to keep the same in repair, as described in this section, is a Class C misdemeanor.

Acts 1879, ch. 81, §§ 1, 2; Shan., §§ 3550, 3551; Code 1932 §§ 7973, 7974; T.C.A. (orig. ed.), §§ 70-208, 70-209; Acts 1989, ch. 591, § 113.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Chapter 3
Water Pollution Control

Part 1
Water Quality Control Act

69-3-101. Short title.

This part shall be known as the “Water Quality Control Act of 1977.”

Acts 1971, ch. 164, § 1; 1977, ch. 366, § 1; T.C.A., § 70-324.

Compiler's Notes. For transfer of the bureau of environment in the department of health and its related functions and the administration of the Tennessee environmental statutes (excluding title 68, chs. 14, 110 and 112) from the department of health to the department of conservation and environment, see Executive Order No. 42 (February 4, 1991).

Cross-References. Major energy projects, coordination of regulation, title 13, ch. 18.

Nontraditional sewage disposal systems, regulation by water and wastewater treatment authorities, § 68-221-607.

Taxation of pollution control equipment, § 67-5-604.

Textbooks. Tennessee Jurisprudence, 25 Tenn. Juris., Waters and Watercourses, § 12.

Law Reviews.

The Tennessee Water Quality Control Act of 1971, 25 Vand. L. Rev. 325, 331.

Attorney General Opinions. Permit requirements for landowners, OAG 97-039, 1997 Tenn. AG LEXIS 38 (4/7/97).

Proposed private act purporting to give a single county zoning and regulatory authority over business activities and property uses that are subject to regulation by the department of environment and would be inconsistent with general laws and would constitute invalid class legislation, OAG 04-105, 2004 Tenn. AG LEXIS 123 (7/02/04).

NOTES TO DECISIONS

1. Bankruptcy.

The water quality control board's (now the board of water quality, gas, and oil) proceedings to fix civil liability under this part are within the exception to the automatic stay in bankruptcy. Word v. Commerce Oil Co., 847 F.2d 291, 1988 U.S. App. LEXIS 6901 (6th Cir. 1988).

2. Private Right of Action.

No implied private right of action exists under the Tennessee Water Quality Control Act, T.C.A. § 69-3-101 et seq.Ergon, Inc. v. Amoco Oil Co., 966 F. Supp. 577, 1997 U.S. Dist. LEXIS 12817 (W.D. Tenn. 1997).

69-3-102. Declaration of policy and purpose.

  1. Recognizing that the waters of Tennessee are the property of the state and are held in public trust for the use of the people of the state, it is declared to be the public policy of Tennessee that the people of Tennessee, as beneficiaries of this trust, have a right to unpolluted waters. In the exercise of its public trust over the waters of the state, the government of Tennessee has an obligation to take all prudent steps to secure, protect, and preserve this right.
  2. It is further declared that the purpose of this part is to abate existing pollution of the waters of Tennessee, to reclaim polluted waters, to prevent the future pollution of the waters, and to plan for the future use of the waters so that the water resources of Tennessee might be used and enjoyed to the fullest extent consistent with the maintenance of unpolluted waters.
  3. Moreover, an additional purpose of this part is to enable the state to qualify for full participation in the national pollutant discharge elimination system (NPDES) established under § 402 of the Federal Water Pollution Control Act, Public Law 92-500 (33 U.S.C. § 1342).
  4. Additionally, it is intended that all procedures in this part shall be in conformity with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1971, ch. 164, § 2; 1977, ch. 366, § 1; T.C.A., § 70-325; Acts 1992, ch. 684, § 1.

Law Reviews.

Tennessee Water Law, You Never Miss the Water Till the Well Runs Dry (Vincent A. Sikora), 24 No. 5 Tenn. B.J. 12 (1988).

NOTES TO DECISIONS

1. Clean Water Act.

The Clean Water Act precludes a citizen's suit only if the Administrator of the environmental protection agency (EPA) or a state is diligently prosecuting an enforcement action in a court of the United States, or a state. Thus, since neither the state's water quality control board (now the board of water quality, gas, and oil), nor the department of environment and conservation (TDEC), rise to the level of a federal or state court, the plaintiffs' citizen suit was not precluded, overruling Jones v. City of Lakeland, 175 F.3d 410, 1999 FED App. 0144P, 1999 U.S. App. LEXIS 7517 (6th Cir. 1999). Jones v. City of Lakeland, 224 F.3d 518, 2000 FED App. 265P, 2000 U.S. App. LEXIS 19013 (6th Cir. Tenn. 2000).

2. Diversion Plan.

It was arbitrary and capricious for Tennessee Solid Waste Disposal Control Board to dismiss a diversion option simply on the basis of possible delay because any delay occasioned by gauging a property owner's willingness to pay for the costs of diversion would be justified by future abatement of leachate discharges. Starlink Logistics, Inc. v. ACC, LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 118 (Tenn. Ct. App. Mar. 11, 2015), rev'd, Starlink Logistics, Inc. v. ACC, LLC, 494 S.W.3d 659, 2016 Tenn. LEXIS 317 (Tenn. May 9, 2016).

Tennessee Solid Waste Disposal Control Board's decision to dismiss a diversion option without fully considering its viability was arbitrary and capricious because the Board failed to fully consider the range of remedial options that were available and discussed at the hearing; it would be unreasonable to not consider the diversion plan given the threat the continued discharge of contaminants posed to the State's waters. Starlink Logistics, Inc. v. ACC, LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 118 (Tenn. Ct. App. Mar. 11, 2015), rev'd, Starlink Logistics, Inc. v. ACC, LLC, 494 S.W.3d 659, 2016 Tenn. LEXIS 317 (Tenn. May 9, 2016).

3. Consent Order.

Approval by the Tennessee Solid Waste Disposal Control Board of an amended consent order detailing necessary actions to be taken by a landfill permit holder to address the pollution issues of a creek and a lake was appropriate because the Board had the authority to approve the plan in the order to reduce the contamination stemming from a permit holder's landfill by diverting storm water away from the site and subsequently removing the waste from the landfill without the requirement of a National Pollutant Discharge Elimination System permit. Starlink Logistics, Inc. v. Acc, LCC, — S.W.3d —, 2018 Tenn. App. LEXIS 57 (Tenn. Ct. App. Jan. 31, 2018), appeal denied, Starlink Logistics Inc. v. ACC, LLC, — S.W.3d —, 2018 Tenn. LEXIS 311 (Tenn. June 7, 2018).

69-3-103. Part definitions. [See contingent amendment to subdivisions (4) and (19) and the Compiler’s Notes.]

As used in this part, unless the context otherwise requires:

  1. “Administrator” means the administrator, or head by whatever name, of the United States environmental protection agency;
  2. “Animal feeding operation” means a lot or facility, other than an aquatic animal production facility, where the following conditions are met:
    1. Animals, other than aquatic animals, have been, are, or will be stabled or confined and fed or maintained for a total of forty-five (45) days or more in any twelve-month period; and
    2. Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility;
  3. “Areawide waste treatment management plan” means a plan that has been approved by the administrator pursuant to § 208 of the Federal Water Pollution Control Act, Public Law 92-500 (33 U.S.C. § 1288);

    [Current version. See second version for contingent amendment and Compiler’s Notes.]

  4. “Board” means the board of water quality, oil and gas, created in § 69-3-104;

    [Contingent amendment. See the Compiler’s Notes.]

  5. “Boat” means any vessel or watercraft moved by oars, paddles, sails or other power mechanism, inboard or outboard, or any vessel or structure floating upon the water whether or not capable of self-locomotion, including, but not limited to, houseboats, barges, docks, and similar floating objects;
  6. “Commissioner” means the commissioner of environment and conservation or the commissioner's duly authorized representative and, in the event of the commissioner's absence or a vacancy in the office of commissioner, the deputy commissioner;
  7. “Construction” means any placement, assembly, or installation of facilities or equipment, including contractual obligations to purchase such facilities or equipment, at the premises where such equipment will be used, including preparation work at such premises;
  8. “Department” means the department of environment and conservation;
  9. “Director” means the director of the division of water management of the department;
  10. “Discharge of a pollutant,” “discharge of pollutants,” and “discharge,” when used without qualification, each refer to the addition of pollutants to waters from a source;
  11. “Division” means the division of water management;
  12. “Effluent limitation” means any restriction, established by the board or the commissioner, on quantities, rates and concentrations of chemical, physical, biological, and other constituents that are discharged into waters or adjacent to waters;
  13. “Forestry best management practices” means those land and water resource conservation measures that prevent, limit, or eliminate water pollution for forest resource management purposes, as provided in rules promulgated in this part in accordance with § 11-4-301(d)(18). Until those rules are effective, “forestry best management practices” will be those that have been developed by the division of forestry of the department of agriculture. The commissioner of agriculture shall specifically identify these interim forestry best management practices prior to September 1, 2000;
  14. “Industrial user” means those industries identified in the standard industrial classification manual, bureau of the budget, 1967, as amended and supplemented, under the category “Division D — Manufacturing” and such other classes of significant waste producers as the board or commissioner deems appropriate;
  15. “Industrial wastes” means any liquid, solid, or gaseous substance, or combination thereof, or form of energy including heat, resulting from any process of industry, manufacture, trade, or business or from the development of any natural resource;
  16. “Liquid waste management system” means a waste management system that collects, stores, or land applies manure in a liquid, flowable form;
  17. “Local administrative officer” means the chief administrative officer of a pretreatment agency that has adopted and implemented an approved pretreatment program pursuant to this part and 33 U.S.C. § 1251 et seq. and 40 CFR 403.1 et seq.;
  18. “Local hearing authority” means the administrative board created pursuant to an approved pretreatment program that is responsible for the administration and enforcement of that program and §§ 69-3-123 — 69-3-129;

    [Current version. See second version for contingent amendment and see Compiler’s Notes.]

  19. “Member” means a member of the board of water quality, oil and gas;

    [Contingent amendment. See the Compiler’s Notes.]

  20. “Municipal separate storm sewer system” means a municipal separate storm sewer system as defined in the Clean Water Act (33 U.S.C. § 1251 et seq.), and the rules promulgated thereunder;
  21. “New source” means any source, the construction of which is commenced after the publication of state or federal regulations prescribing a standard of performance applicable to such source;
  22. “Obligate lotic aquatic organisms” means organisms that require flowing water for all or almost all of the aquatic phase of their life cycles;
  23. “Operator” as used in the context of silvicultural activities, means any person who conducts or exercises control over any silvicultural activities; provided, however, that the term “operator” does not include an owner if the silvicultural activities are being conducted by an independent contractor;
  24. “Other wastes” means any and all other substances or forms of energy, with the exception of sewage and industrial wastes, including, but not limited to, decayed wood, sand, garbage, silt, municipal refuse, sawdust, shavings, bark, lime, ashes, offal, oil, hazardous materials, tar, sludge, or other petroleum byproducts, radioactive material, chemicals, heated substances, dredged spoil, solid waste, incinerator residue, sewage sludge, munitions, biological materials, wrecked and discarded equipment, rock, and cellar dirt;
  25. “Owner” as used in the context of silvicultural activities, means any person or persons that own or lease land on which silvicultural activities occur or own timber on land on which silvicultural activities occur;
  26. “Owner or operator” means any person who owns, leases, operates, controls, or supervises a source;
  27. “Person” means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, state and federal agencies, municipalities or political subdivisions, or officers thereof, departments, agencies, or instrumentalities, or public or private corporations or officers thereof, organized or existing under the laws of this or any other state or country;
  28. “Pollutant” means sewage, industrial wastes, or other wastes;
  29. “Pollution” means such alteration of the physical, chemical, biological, bacteriological, or radiological properties of the waters of this state, including, but not limited to, changes in temperature, taste, color, turbidity, or odor of the waters that will:
    1. Result or will likely result in harm, potential harm or detriment to the public health, safety, or welfare;
    2. Result or will likely result in harm, potential harm or detriment to the health of animals, birds, fish, or aquatic life;
    3. Render or will likely render the waters substantially less useful for domestic, municipal, industrial, agricultural, recreational, or other reasonable uses; or
    4. Leave or likely leave the waters in such condition as to violate any standards of water quality established by the board;
  30. “Pretreatment agency” means the owner of a publicly owned treatment works permitted pursuant to this part that is required by its permit to adopt and enforce an approved pretreatment program that complies with this part and 33 U.S.C. § 1251 et seq. and 40 CFR 403.1 et seq.;
  31. “Pretreatment program” means the rules, regulations, and/or ordinances of a pretreatment agency regulating the discharge and treatment of industrial waste that complies with this part and 33 U.S.C. § 1251 et seq. and 40 CFR 403.1 et seq.;
  32. “Qualified local program” means a municipal separate storm sewer system that has been approved as such by the department pursuant to this part;
  33. “Regional administrator” means the regional administrator of the United States environmental protection agency whose region includes Tennessee, or any person succeeding to the duties of this official;
  34. “Schedules of compliance” means a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, condition of a permit, other limitation, prohibition, standard, or regulation;
  35. “Sewage” means water-carried waste or discharges from human beings or animals, from residences, public or private buildings, or industrial establishments, or boats, together with such other wastes and ground, surface, storm, or other water as may be present;
  36. “Sewerage system” means the conduits, sewers, and all devices and appurtenances by means of which sewage and other waste is collected, pumped, treated, or disposed;
  37. “Silvicultural activities” means those forest management activities associated with the harvesting of timber and including, without limitation, the construction of roads and trails;
  38. “Source” means any activity, operation, construction, building, structure, facility, or installation from which there is or may be the discharge of pollutants;
  39. “Standard of performance” means a standard for the control of the discharge of pollutants that reflects the greatest degree of effluent reduction that the commissioner determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants;
  40. “Stop work order” means an order issued by the commissioner of environment and conservation requiring the operator to immediately cease part or all silvicultural activities;
  41. “Stream” means a surface water that is not a wet weather conveyance;
  42. “Toxic effluent limitation” means an effluent limitation on those pollutants or combinations of pollutants, including disease-causing agents, which after discharge and upon exposure, ingestion, inhalation or assimilation into any organism, either directly from the environment or indirectly by ingestion through food chains, will, on the basis of available information, cause death, disease, behavioral abnormalities, cancer, genetic mutations, physiological malfunctions, including malfunctions in reproduction, or physical deformations, in such organisms or their offspring;
  43. “Variance” means an authorization issued to a person by the commissioner that would allow that person to cause a water quality standard to be exceeded for a limited time period without changing the standard;
  44. “Watercourse” means a man-made or natural hydrologic feature with a defined linear channel that discretely conveys flowing water, as opposed to sheet-flow;
  45. “Waters” means any and all water, public or private, on or beneath the surface of the ground, that are contained within, flow through, or border upon Tennessee or any portion thereof, except those bodies of water confined to and retained within the limits of private property in single ownership that do not combine or effect a junction with natural surface or underground waters; and
  46. “Wet weather conveyance” means, notwithstanding any other law or rule to the contrary, man-made or natural watercourses, including natural watercourses that have been modified by channelization:
    1. That flow only in direct response to precipitation runoff in their immediate locality;
    2. Whose channels are at all times above the groundwater table;
    3. That are not suitable for drinking water supplies; and
    4. 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.

“Board” means the Tennessee board of energy and natural resources, created by § 69-3-104;

“Member” means a member of the Tennessee board of energy and natural resources;

Acts 1971, ch. 164, § 3; 1977, ch. 366, § 1; T.C.A., § 70-326; Acts 1984, ch. 804, § 1; 1987, ch. 111, § 1; 1988, ch. 688, §§ 2, 6; 1992, ch. 693, § 1; 1998, ch. 735, § 1; 2000, ch. 680, § 1; 2009, ch. 464, § 1; 2012, ch. 1019, § 1; 2017, ch. 293, § 1; 2018, ch. 523, §§ 1, 3; 2018, ch. 839, §§ 25, 26.

Compiler's Notes. Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

Acts 2018, ch. 523, § 3, which amended Acts 2017, ch. 293, §§ 3-5, changed the effective date in ch. 293 from March 1, 2018 to July 1, 2018. This amendment results in the amendment to this section by Acts 2018, ch. 523 taking effect on July 1, 2018.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment by ch. 839, substituted “Tennessee board of energy and natural resources, created by” for “board of water quality, oil and gas, created in” in the definition of “board”; and substituted “Tennessee board of energy and natural resources” for “board of water quality, oil and gas” in the definition “member”.

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

69-3-104. Board of water quality, oil, and gas. [See contingent amendment to subdivisions (a)(1), (4) and (13) and see the Compiler’s Notes.]

  1. [Current version. See second version for contingent amendment and see Compiler’s Notes.]
    1. There is hereby created and established the Tennessee board water quality, oil, and gas, referred to as the “board” in this part, which shall be composed of twelve (12) members as follows:
      1. The commissioner of environment and conservation, who shall be the chair of the board;
      2. The commissioner of health;
      3. The commissioner of agriculture; and
      4. Nine (9) citizen members appointed by the governor for terms of four (4) years.

        [Contingent amendment. See the Compiler’s Notes.]

        There is hereby created and established the Tennessee board of energy and natural resources, referred to in this part as the “board,” which shall be composed of fourteen (14) members as follows:

      5. The commissioner of environment and conservation, who shall be the chair of the board;
      6. The commissioner of health;
      7. The commissioner of agriculture; and
      8. Eleven (11) citizen members appointed by the governor for terms of four (4) years;
    2. Each ex officio member may, by official order filed with the director, designate a representative from such member's staff who shall have the powers and be subject to the duties and responsibilities of the ex officio member designating the representative, except that the representative designated by the commissioner of environment and conservation shall not serve as chair.
    3. The board shall annually elect a vice chair from among its members, who shall preside over all meetings at which the chair is not present.

      [Current version. See second version for contingent amendment and Compiler’s Notes.]

      1. The citizen members of the board shall be appointed as follows:
        1. One (1) of the nine (9) citizen members shall be from the public-at-large. The public member's occupation shall not be in the same primary area of interest as any other citizen member of the board;
        2. One (1) member shall represent environmental interests and may be appointed from lists of qualified persons submitted by interested conservation groups including, but not limited to, the Tennessee conservation league;
        3. One (1) member shall represent counties and may be appointed from lists of qualified persons submitted by interested county services groups including, but not limited to, the County Services Association;
        4. One (1) member shall represent agricultural interests and may be appointed from lists of qualified persons submitted by interested farm business groups including, but not limited to, the Tennessee Farm Bureau;
        5. One (1) member shall represent the municipalities of the state and may be appointed from lists of qualified persons submitted by interested municipal groups including, but not limited to, the Tennessee Municipal League;
        6. One (1) member shall represent small generators of water pollution and may be appointed from lists of qualified persons submitted by interested automotive groups including, but not limited to, the Tennessee Automotive Association;
        7. One (1) member shall represent manufacturing industries and have current full-time employment with a manufacturing concern in Tennessee, shall hold a college degree in engineering or the equivalent, and shall have at least eight (8) years of combined technical training and experience in national pollutant discharge elimination system (NPDES) permit compliance and management of wastewater or water treatment facilities, and may be appointed from lists of qualified persons submitted by interested business groups including, but not limited to, the Tennessee Chamber of Commerce and Industry;
        8. One (1) member shall represent the oil and gas industry; and
        9. One (1) member shall represent oil or gas property owners.
      2. The governor shall consult with the interested groups described in subdivision (a)(4)(A) to determine qualified persons to fill the citizen member positions on the board.

        (A)  The citizen members of the board shall be appointed as follows:

        [Contingent amendment. See the Compiler’s Notes.]

        1. One (1) of the eleven (11) citizen members shall be from the public-at-large. The public member's occupation shall not be in the same primary area of interest as any other citizen member of the board;
        2. One (1) member shall represent environmental interests and may be appointed from lists of qualified persons submitted by interested conservation groups including, but not limited to, the Tennessee conservation league;
        3. One (1) member shall represent counties and may be appointed from lists of qualified persons submitted by interested county services groups including, but not limited to, the County Services Association;
        4. One (1) member shall represent agricultural interests and may be appointed from lists of qualified persons submitted by interested farm business groups including, but not limited to, the Tennessee Farm Bureau;
        5. One (1) member shall represent the municipalities of the state and may be appointed from lists of qualified persons submitted by interested municipal groups including, but not limited to, the Tennessee Municipal League;
        6. One (1) member shall represent small generators of water pollution and may be appointed from lists of qualified persons submitted by interested automotive groups including, but not limited to, the Tennessee Automotive Association;
        7. One (1) member shall represent manufacturing industries and have current full-time employment with a manufacturing concern in Tennessee, shall hold a college degree in engineering or the equivalent, and shall have at least eight (8) years of combined technical training and experience in national pollutant discharge elimination system (NPDES) permit compliance and management of wastewater or water treatment facilities, and may be appointed from lists of qualified persons submitted by interested business groups including, but not limited to, the Tennessee Chamber of Commerce and Industry;
        8. One (1) member shall represent the oil and gas industry;
        9. One (1) member shall represent oil or gas property owners;
        10. One (1) member shall represent the coal mining industry and shall be appointed from lists of qualified persons submitted by interested mining industry groups including, but not limited to, the Tennessee Mining Association; and
        11. One (1) member shall represent owners of coal reserves and shall be appointed from lists of qualified persons submitted by interested mining industry groups including, but not limited to, the Tennessee Mining Association.
      3. The governor shall consult with the interested groups described in subdivision (a)(4)(A) to determine qualified persons to fill the citizen member positions on the board.
    4. Each appointive member shall be a resident and domiciliary of this state.
    5. No member shall be appointed, unless at the time of the member's appointment, the member or the member's employer is in compliance with this part as certified by the commissioner.
    6. The three (3) ex officio members shall hold their positions on the board throughout their respective terms and until the appointment of their successors as such.
    7. All appointments of citizen members shall be for a full four-year term.
    8. Any appointive member who is absent from three (3) consecutive, regularly scheduled meetings shall be removed from the board by the governor.
    9. Upon the death, resignation, or removal of any appointive member, the governor shall appoint some person representing the same area of interest as the member whose position has been vacated to fill the unexpired term of such member.
    10. Appointive members shall continue to serve until a successor has been appointed.
    11. In making appointments to the board, the governor shall strive to ensure that at least one (1) person appointed to serve on the board is sixty (60) years of age or older and that at least one (1) person appointed to serve on the board is a member of a racial minority.

      [Current version. See second version for contingent amendment and Compiler’s Notes.]

      1. Notwithstanding subdivision (a)(8), the terms of the appointive members of the board serving on July 1, 2014, shall terminate as follows:
        1. The terms of the members appointed under subdivisions (a)(4)(A)(i) and (ii) shall terminate on September 30, 2016;
        2. The terms of the members appointed under subdivisions (a)(4)(A)(iii) and (iv) shall terminate on September 30, 2017;
        3. The terms of the members appointed under subdivisions (a)(4)(A)(v) and (vi) shall terminate on September 30, 2018; and
        4. The terms of the members appointed under subdivisions (a)(4)(A)(vii), (viii) and (ix) shall terminate on September 30, 2019.
      2. The terms of all members appointed for terms beginning after September 30, 2016, shall be for four (4) years.

        (A)  Notwithstanding subdivision (a)(8), the terms of the appointive members of the board serving on July 1, 2014, shall terminate as follows:

        [Contingent amendment. See the Compiler’s Notes.]

        1. The terms of the members appointed under subdivisions (a)(4)(A)(i) and (ii) shall terminate on September 30, 2016;
        2. The terms of the members appointed under subdivisions (a)(4)(A)(iii) and (iv) shall terminate on September 30, 2017;
        3. The terms of the members appointed under subdivisions (a)(4)(A)(v) and (vi) shall terminate on September 30, 2018;
        4. The terms of the members appointed under subdivisions (a)(4)(A)(vii), (viii) and (ix) shall terminate on September 30, 2019; and
        5. Notwithstanding the term limitations prescribed in subdivision (a)(13)(B):
          1. The term of the member appointed under subdivision (a)(4)(A)(x) shall terminate on September 30 in the year five (5) years after the effective date of this act [See Compiler's Notes.] ; and
          2. The term of the member appointed under subdivision (a)(4)(A)(xi) shall terminate on September 30 in the year six (6) years after the effective date of this act [See Compiler's Notes.] .
      3. The terms of all members appointed for terms beginning after September 30, 2016, shall be for four (4) years.
    1. The state shall ensure that those members of the board who do not receive, or during the previous two (2) years have not received, a significant portion of their income directly or indirectly from permit holders or applicants for a permit shall hear all appeals on permit matters. If the chair is not eligible to hear any permit matter, the members of the board shall select a member by majority vote to serve as chair. An ex officio member of the board who is not eligible to hear a permit matter shall designate a representative to serve on the board for that purpose in accordance with subsection (a). Board member participation in permit matters shall also be in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3, in addition to the provisions set forth in subdivisions (b)(2)-(6) and subsection (h).
    2. For the purposes of this section, “significant portion of their income” means ten percent (10%) of gross personal income for a calendar year, except that it means fifty percent (50%) of gross personal income for a calendar year if the recipient is over sixty (60) years of age and is receiving such portion pursuant to retirement, pension, or similar arrangement.
    3. For the purposes of this section, “permit holders or applicants for a permit” does not include any department or agency of the state.
    4. For the purposes of this section, “income” includes retirement benefits, consultant fees, and stock dividends.
    5. For the purposes of this section, income is not received “directly or indirectly from permit holders or applicants for a permit” where it is derived from mutual fund payments, or from other diversified investments over which the recipient does not know the identity of the primary sources of income. If members other than the ex officio members are not qualified, then the seven (7) citizen members who are not ex officio members shall select, by agreement, qualified temporary replacements to serve for the duration of any proceeding before the board.
    6. For the purposes of this subsection (b), “permit” means national pollutant discharge elimination system (NPDES) permit.
  2. Each member of the board, other than the ex officio member, shall be entitled to be paid fifty dollars ($50.00) for each day actually and necessarily employed in the discharge of official duties, and each member shall be entitled to receive the amount of such member's traveling and other necessary expenses actually incurred while engaged in the performance of any official duties when so authorized by the board, but such expenses shall be made in accordance with the comprehensive state travel regulations promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
  3. The board shall have two (2) regularly scheduled meetings each year, one (1) in October and one (1) in April. Special meetings may be called by the chair at any time and shall be called as soon as possible by the chair on the written request of two (2) members. Regular meetings of the panel shall be held as necessary to review permit matters. All members shall be duly notified by the technical secretary of the time and place of any regular or special meeting at least five (5) days in advance of such meeting. The majority of the board constitutes a quorum and the concurrence of a majority of those present and voting in any matter within its duties shall be required for a determination of matters within its jurisdiction.
  4. The board shall keep complete and accurate records of the proceedings of all their meetings, a copy of which shall be kept on file in the office of the director and open to public inspection.
  5. The director shall serve as the technical secretary of the board. In that capacity, the member shall report the proceedings of the board pursuant to § 69-3-110 and perform such other duties as the board may require.
    1. If the board incurs a vacancy, it shall notify the appointing authority in writing within ninety (90) days after the vacancy occurs. All vacancies on the board, other than ex officio members, shall be filled by the appointing authority within ninety (90) days of receiving written notice of the vacancy and of providing sufficient information for the appointing authority to make an informed decision in regard to filling such vacancy. If such sufficient information has been provided and the board has more than one (1) vacancy that is more than one hundred eighty (180) days in duration, such board shall report to the house of representatives and senate government operations committees why such vacancies have not been filled.
    2. If more than one half (½) of the positions on the board are vacant for more than one hundred eighty (180) consecutive days, the board shall terminate, provided that such board shall wind up its affairs pursuant to § 4-29-112. If the board is terminated pursuant to this subdivision (g)(2), it shall be reviewed by the evaluation committees pursuant to the Uniform Administrative Procedures Act before ceasing all its activities. Nothing in this section shall prohibit the general assembly from continuing, restructuring, or reestablishing the board.
  6. No member of the board shall participate in making any decision upon a permit or upon a case in which the municipality, firm or organization which the member represents, or by which the member is employed, or in which the member has a direct substantial financial interest, is involved.

Acts 1971, ch. 164, § 4; 1971, ch. 386, § 1; 1972, ch. 631, § 1; 1976, ch. 806, § 1(125); 1977, ch. 366, § 1; 1979, ch. 422, § 18; T.C.A., § 70-327; Acts 1984, ch. 804, § 2; 1988, ch. 1013, § 72; 1991, ch. 117, § 4; 1992, ch. 693, § 3; 1994, ch. 610, §§ 6, 7, 8; 1994, ch. 628, §§ 3-6; 1995, ch. 155, § 1; 1996, ch. 728, §§ 4-8; 2000, ch. 835, § 6; 2005, ch. 85, §§ 1-4; 2012, ch. 986, §§ 26-28; 2014, ch. 624, §§ 3, 6-8; 2018, ch. 839, §§ 27-29.

Code Commission Notes.

Former subsection (h), concerning the transfer of the functions of the board of reclamation review to the water control board, was deleted as obsolete by the code commission in 2004.

Compiler's Notes. The Tennessee board of water quality, oil, and gas, created by this section, terminates June 30, 2023. See §§ 4-29-112, 4-29-244.

For transfer of the division of surface mining and reclamation and its functions under title 59, ch. 8, parts 2 and 3 and title 59, ch. 10 from the department of conservation (now environment and conservation) to the department of health and environment (now health), see Executive Order No. 40 (February 11, 1983).

Acts 2000, ch. 835, § 7 provided that the act shall not change any procedure, manner, or time that members of the Tennessee motor vehicle commission, who are selected from a list of qualified persons submitted by motor vehicle manufacturers licensed in Tennessee or their consumer replacements, are appointed pursuant to § 55-17-103.

Acts 2012, ch. 986, § 48 provided that all rules, regulations, orders, and decisions heretofore issued or promulgated by any of the boards or commissions, which the act terminates or merges into another board or commission, shall remain in full force and effect. In the case of the boards or commissions that are merged with another board or commission by the act, all final rules, regulations, orders, and decisions together with any matters that are pending on October 1, 2012, shall hereafter be administered, enforced, modified, or rescinded in accordance with the law applicable to the continuing board or commission.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment in (a), substituted “Tennessee board of energy and natural resources” for “Tennessee board of water quality, oil, and gas” and substituted “fourteen (14) members” for “twelve (12) members” in the introductory language in (1); and substituted “Eleven (11) citizen members” for “Nine (9) citizen members” in (1)(D); in (4), substituted “eleven (11)” for “nine (9)” in (A)(i); deleted “and” at the end of (A)(viii); substituted “;” for the period at the end of (A)(ix); and added (A)(x) and (A)(xi); in (13), deleted “and” at the end of (A)(iii); substituted “; and” for the period at the end of (A)(iv); and added (A)(v).

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

Cross-References. Interstate mining compact, §§ 59-10-10159-10-103.

Major energy projects, coordination of regulation, title 13, ch. 18.

Severance tax on coal, title 67, ch. 7, part 1.

Law Reviews.

Disqualification of Administrative Officers (William Bates), 13 Mem. St. U.L. Rev. 501 (1984).

69-3-105. Duties and authority of the board. [See contingent amendment to subdivision (e)(1)(C) and the Compiler’s Notes.]

    1. The board has and shall exercise the power, duty, and responsibility to establish and adopt standards of quality for all waters of the state.
    2. The general assembly recognizes that, due to various factors, no single standard of quality and purity is applicable to all waters of the state or to different segments of the same waters. It also recognizes the suitability of certain geologic formations for the placement of fluids and other substances through underground injection; provided, that adequate protection can be afforded the geologic formations. The board shall classify all waters of the state and adopt water quality standards pursuant to such classifications. Such classifications shall be made in accordance with the declaration of policy and purpose in § 69-3-102. In preparing the classification of waters and the standards of quality mentioned above, the board shall give consideration to:
      1. The size, depth, surface area covered, volume, direction and rate of flow, stream gradient, and temperature of the water;
      2. The character of the land bordering, overlying or underlying the waters of the state and its particular suitability for particular uses, with a view to conserving the value of that land, encouraging the most appropriate use of the same for economic, residential, agricultural, industrial, recreational and conservation purposes;
      3. The past, present, and potential uses of the waters for transportation, domestic and industrial consumption, recreation, fishing and fish culture, fire prevention, the disposal of sewage, industrial and other wastes, and other possible uses.
    3. The state water quality plan provided for in subsection (e) shall contain standards of quality and purity for each of the various classes of water in accordance with the best interests of the public. In preparing such standards, the board shall give due consideration to all physical, chemical, biological, bacteriological, or radiological properties that may be necessary for preserving the quality and purity of the waters of the state.
    4. The board may amend and revise such standards and classifications, including revisions to improve and upgrade the quality of water.
  1. The board has and shall exercise the power, duty, and responsibility to adopt, modify, repeal, promulgate after due notice and enforce rules and regulations that the board deems necessary for the proper administration of this part, the prevention, control, and abatement of pollution, or the modification of classifications and the upgrading of the standards of quality in accordance with subsection (a).
  2. The board has and shall exercise the power, duty, and responsibility to adopt, modify, repeal, and promulgate, after due notice, all necessary rules and regulations for the purpose of controlling the discharge of sewage, other wastes, and other substances from any boats.
  3. Prior to classifying or reclassifying waters of the state, or adopting, amending, or revising standards of quality for waters of the state, or promulgating, adopting, modifying, or repealing rules and regulations, or adopting, amending, or revising water quality plans, or area-wide waste treatment plans, the board shall conduct, or cause to be conducted, public hearings in connection therewith. Notice of any public hearing shall be given not less than thirty (30) days before the date of such hearing and shall state the date, time, and place of hearing, and the subject of the hearing. Any such notice shall be published at least once in one (1) newspaper of general public circulation circulated within the area of the state in which the water affected is located. Any person within the area of the state in which the water affected is located may contact the board and request to be placed on a notification registry, which includes such person's full name, mailing address, and telephone number. The board shall notify in writing all persons on such notification registry as to the date, time, and place of hearing, and the subject of the hearing, ten (10) days before the hearing. Any person who desires to be heard relative to water quality matters at any such public hearing shall give notice thereof in writing to the board on or before the first date set for the hearing. The board is authorized to set reasonable time limits for the oral presentation of views by any person at any such public hearing.
    1. The board has and shall exercise the power, duty, and responsibility to proceed without delay to formulate and adopt a state water quality plan, which shall consist of the following:
      1. Water quality standards as outlined in subsection (a);
      2. Water quality objectives for planning and operation of water resource development projects, for water quality control activities, and for the improvement of existing water quality;

        [Current version. See second version for contingent amendment and see Compiler’s Notes.]

      3. Other principles and guidelines deemed essential by the board of water quality, oil and gas; and

        [Contingent amendment. See the Compiler’s Notes.]

      4. Other principles and guidelines deemed essential by the board; and
      5. A program of implementation for those waters that do not presently meet established water quality standards.
    2. The state water quality plan shall be reviewed at least biennially and may be revised. During the process of formulating or revising the state water quality plan, the board shall consult with and carefully evaluate the recommendations of concerned federal, state, and local agencies.
  4. The board has and shall exercise the power, duty, and responsibility to:
    1. Hear appeals as specified in subsection (i) from administrative judges' orders assessing penalties or damages, or issuing, denying, revoking or modifying a permit; and
    2. Affirm, modify, or revoke such orders, as specified in subsection (i).
  5. The board has and shall exercise the power, duty, and responsibility to require the technical secretary to carry out surveys, research, and investigations into all aspects of water use and water quality.
    1. The board has and shall exercise the power, duty, and responsibility to adopt, modify, repeal, and promulgate all necessary rules and regulations for the purpose of establishing and administering a comprehensive permit program that will enable the department of environment and conservation to be designated by the United States environmental protection agency as authorized to issue permits under the national pollutant discharge elimination system (NPDES) established by § 402 of the Federal Water Pollution Control Act, P.L. 92-500 (33 U.S.C. § 1342).
    2. Such rules and regulations shall include provisions for:
      1. Forms and procedures for permit applications;
      2. Public notice and opportunity for public hearing on permit applications;
      3. Promulgation and application in permits of effluent standards and limitations, water quality standards, schedules of compliance, and such other terms and conditions as are necessary to implement this part;
      4. Monitoring and inspecting effluent discharges or treatment facilities and recording and reporting the results;
      5. Enforcement of this part, rules and regulations promulgated under it, and the terms and conditions of permits; and
      6. Adoption and enforcement of permits that have been issued by the United States environmental protection agency pursuant to § 402 of the Federal Water Pollution Control Act, P.L. 92-500.
  6. A petition for permit appeal may be filed by the permit applicant or by any aggrieved person who participated in the public comment period or gave testimony at a formal public hearing whose appeal is based upon any of the issues that were provided to the commissioner in writing during the public comment period or in testimony at a formal public hearing on the permit application. Additionally, for those permits for which the department gives public notice of a draft permit, any permit applicant or aggrieved person may base a permit appeal on 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. Any petition for permit appeal under this subsection (i) shall be filed with the board within thirty (30) days after public notice of the commissioner's decision to issue or deny the permit. Notwithstanding § 4-5-223 or § 69-3-118(a), or any other law to the contrary, this subsection (i) and the established procedures of Tennessee's antidegradation statement, found in the rules promulgated by the department, shall be the exclusive means for obtaining administrative review of the commissioner's issuance or denial of a permit. When such a petition is timely filed, the procedure for conducting the contested case shall be in accordance with § 69-3-110(a).
  7. The board has and shall exercise the power, duty, and responsibility to adopt, modify, repeal, and promulgate all necessary rules and regulations that the board deems necessary relating to the underground placement of fluids and other substances that do or may affect the waters of the state.
    1. Notwithstanding any other provisions of this title to the contrary, waters that are in areas of swamped-out bottomland hardwoods or swamped-out cropland shall be classified as protective of wildlife and humans that may come into contact with them, and shall maintain standards applicable to all downstream waters, but shall not be classified for the protection of fish and aquatic life.
    2. As used in this subsection (k):
      1. “Swamped-out bottomland hardwood” means an area subject to inundation or ponding of surface water that has resulted, or is resulting, in timber mortality or stress. The term does not include areas with a dominance of cypress or tupelo gum trees or areas in which the majority of the timber died prior to 1970; and
      2. “Swamped-out cropland” means an area that was previously in row crop cultivation or pasture, but can no longer be used for such purpose due to inundation or ponding of surface water. “Swamped-out cropland” does not include wetland areas that have not been cultivated or in pasture since 1970 because of inundation or ponding of surface water.
  8. The board has and shall exercise the power to adopt rules creating a system of incentives for alternatives to discharges to surface waters, such as land application and beneficial reuse of the wastewater.
  9. The commissioner shall develop and submit to the board proposed rules necessary for accurate and consistent wet weather conveyance determinations. These rules shall include at a minimum:
    1. Standard procedures for making stream and wet weather conveyance determinations that take into consideration biology, geology, geomorphology, precipitation, hydrology and other scientifically based principles; and
    2. A certification program for department staff and other persons who wish to become certified hydrologic professionals.

Acts 1971, ch. 164, § 5; 1977, ch. 366, § 1; T.C.A., § 70-328(a); Acts 1984, ch. 804, § 3; 1988, ch. 688, §§ 4, 8; 1991, ch. 123, § 1; 1992, ch. 693, § 1; 1998, ch. 643, § 1; 2005, ch. 355, § 1; 2007, ch. 362, § 36; 2009, ch. 271, § 2; 2009, ch. 464, § 3; 2013, ch. 181, §§ 13, 14; 2018, ch. 839, § 30.

Compiler's Notes. Acts 2005, ch. 355, § 2 provided that the amendment of subsection (i) shall only apply to permit applications filed after June 7, 2005.

Acts 2009, ch. 454, § 3 provided that, within ninety (90) days of June 23, 2009, the commissioner shall develop and submit to the board proposed rules necessary for accurate and consistent wet weather conveyance determinations.

Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

Acts 2013, ch.181, § 19 provided that for the purpose of construing the act in relation to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the act shall be deemed to be procedural in nature. It is the intent of the general assembly that Acts 2013, chapter 181 and the Uniform Administrative Procedures Act shall be complied with, however when in conflict, the provisions of Acts 2013, chapter 181 shall govern.

Acts 2013, ch. 181, § 20 provided that the act, which amended subsections (f) and (i), shall apply to all cases filed on or after July 1, 2013.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment deleted “of water quality, oil and gas” at the end of (e)(1)(C).

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

Attorney General Opinions. Memorandum of agreement between division of solid waste management and division of water pollution control not a rule subject to Uniform Administrative Procedures Act, OAG 95-084, 1995 Tenn. AG LEXIS 94 (8/15/95).

The water quality control board (now the board of water quality, oil and gas) has the authority to adopt rules that require applicants for individual aquatic resource alteration permits to evaluate practicable alternatives and to conduct an avoidance, minimization, and/or mitigation analysis for activities that will impact waters of the state as such requirements are in keeping with the public trust doctrine and the legislative policy of preserving and protecting the waters of the state from conditions of pollution, OAG 00-122, 2000 Tenn. AG LEXIS 123 (7/21/00).

The Tennessee water quality control board (now the board of water quality, oil and gas) does not have authority to promulgate a rule that would authorize the commissioner of the Tennessee department of environment and conservation to issue stop work orders for construction activity that is being done without a required permit or in violation of a permit, OAG 01-105, 2001 Tenn. AG LEXIS 96 (6/27/01).

69-3-106. [Reserved.]

In addition to any power, duty, or responsibility given to the commissioner under this part, the commissioner has the power, duty, and responsibility to:

  1. Exercise general supervision and control over the quality of all state waters, administer and enforce all laws relating to pollution of such waters, and administer and enforce this part, and all standards, policies, rules, and regulations promulgated under this part;
  2. Administer oaths, issue subpoenas, and compel the attendance of witnesses and production of necessary data for all purposes of this part;
  3. Bring suit in the name of the department for any violation of this part, seeking any remedy provided in this part, and any other statutory or common law remedy available for the control, prevention, and abatement of pollution;
  4. Proceed against, as provided in this part, any owner or operator of any boat, located or operated on the waters of the state, that discharges or causes to be discharged any sewage, other wastes, or other substances into such waters in violation of this part or any rules or regulations promulgated under this part;
  5. Make inspections and investigations, carry on research, or take such other action as may be necessary to carry out this part;
  6. Enter or authorize the commissioner's agents to enter at all reasonable times upon any property other than dwelling places for the purpose of conducting investigations and studies or enforcing any of  this part;
  7. Advise, consult, cooperate, contract, and make other binding agreements with the various agencies of the federal government and with state and local administrative and governmental agencies, colleges and universities, or with any other persons;
    1. In furtherance of this part, the commissioner may require any state or local agency to investigate and report on any matters involved in water quality control; provided, that the burden, including costs, of such reports shall bear a reasonable relationship to the need for the reports and the benefits to be obtained from the reports; and
    2. The department has the authority, subject to approval by the governor, to enter into agreements with other states and the United States relative to prevention and control of pollution in interstate waters. This authority is not deemed to extend to the modification of any agreement with the state concluded by direct legislative act, but unless otherwise expressly provided, the department shall be the agency for the administration and enforcement of any such legislative agreement;
  8. Apply for, accept, administer, and utilize loans and grants from the federal government, state government, and from any other sources, public or private, for prevention, abatement, and control of pollution of the waters of the state. The department is the water quality control agency for the state for the purpose of any federal water pollution control act;
  9. Prepare, publish, and issue such printed pamphlets and bulletins as the department deems necessary for the dissemination of information to the public concerning its activities;
  10. Require the submission of such plans, specifications, technical reports, and other information as deemed necessary to carry out this part or to carry out the rules and regulations adopted pursuant to this part;
  11. Be the administrative agent for the board and panel to carry out this part;
  12. Make an annual report to the governor and the general assembly on the status of water quality, including a description of the plan, regulations in effect, and other pertinent information, together with any recommendations the commissioner may care to make;
  13. Delegate to the director of the division with responsibility for water quality control any of the powers, duties, and responsibilities of the commissioner under this part, except the commissioner's powers, duties and responsibility as chair of the board;
  14. Issue permits and variances pursuant to § 69-3-108;
  15. Inspect waters of the state where good cause is shown that the public health is threatened by pollutants in the waters, and, upon verification by the commissioner, post or cause to be posted such signs as required to give notice to the public of the potential or actual dangers of specific uses of such waters or restrictions of uses of such waters;
  16. Assess civil penalties in accordance with § 69-3-115;
  17. Apply this part against any person who discharges into a publicly owned treatment works who is causing a violation of this part, or who is in violation of applicable pretreatment standards;
  18. Impose such restrictions, including an immediate cessation of connections and line extensions, upon the expansion of any sewerage or wastewater system as are necessary to mitigate or prevent violations of this part;
  19. Prepare a written report on stream bank erosion in Tennessee to be delivered to each member of the general assembly by January 15, 2000. Such report shall contain the following:
    1. An examination of the causes of stream bank erosion;
    2. The effectiveness of existing and new methods of bank protection;
    3. An assessment of stream bank erosion in Tennessee; and
    4. Any other matter the commissioner deems relevant to stream bank erosion that may be of concern to the general assembly;
  20. Conduct, or cause to be conducted, demonstration projects, to the extent of available funds, of methods of bank stabilization and debris removal in streams in western Middle Tennessee to be done as soon as is practicable and a report shall be made to the general assembly after the performance of the chosen techniques has been observed through at least a full year;
  21. Conduct, or cause to be conducted, a study or project comparing different techniques for stream bank stabilization and debris removal in streams in western Middle Tennessee to be done as soon as possible, either in conjunction with the project mentioned in subdivision (20), or separately;
  22. Develop a program of public education regarding simple, practical and affordable techniques for cleaning debris from streams and for stabilizing stream banks, including field examples of activities permissible without permits and activities that may be accomplished if permits are obtained;
  23. Produce a video by not later than January 1, 1999, that shows the above examples, explains the requirements of the law and rules for these activities, including the process of applying for a permit, and tells who to call for further assistance, which shall be distributed at no cost to public libraries and agricultural extension services;
  24. Perform a thorough and ongoing study of, and prepare recommendations regarding options for, the protection of watersheds and the control of sources of pollution, in order to assure the future quality of potable drinking water supplies throughout the state. The department is authorized to use information and studies from state, federal, and local governments and other sources of reliable scientific data. Initial findings and recommendations shall be presented to the governor and the general assembly no later than February 1, 2007, and annually thereafter; and
  25. Develop and submit to the board for comment proposed guidance that provides:
    1. Instructions, examples and definitions based upon scientifically based principles for consistently and accurately making hydrologic determinations; and
    2. Minimum qualifications for staff who are responsible for making or reviewing wet weather conveyance determinations.

Acts 1971, ch. 164, § 6; 1977, ch. 366, § 1; 1979, ch. 422, § 19; 1982, ch. 917, § 1; T.C.A., § 70-329; Acts 1984, ch. 804, § 5; 1988, ch. 688, §§ 5, 9; 1998, ch. 659, §§ 1, 2; 2006, ch. 513, § 1; 2009, ch. 464, § 4.

69-3-108. Permits.

  1. Every person who is or is planning to carry on any of the activities outlined in subsection (b), other than a person who discharges into a publicly owned treatment works or who is a domestic discharger into a privately owned treatment works, or who is regulated under a general permit as described in subsection (l ), shall file an application for a permit with the commissioner or, when necessary, for modification of such person's existing permit.
  2. It is unlawful for any person, other than a person who discharges into a publicly owned treatment works or a person who is a domestic discharger into a privately owned treatment works, to carry out any of the following activities, except in accordance with the conditions of a valid permit:
    1. The alteration of the physical, chemical, radiological, biological, or bacteriological properties of any waters of the state;
    2. The construction, installation, modification, or operation of any treatment works, or part thereof, or any extension or addition thereto;
    3. The increase in volume or strength of any wastes in excess of the permissive discharges specified under any existing permit;
    4. The development of a natural resource or the construction, installation, or operation of any establishment or any extension or modification thereof or addition thereto, the operation of which will or is likely to cause an increase in the discharge of wastes into the waters of the state or would otherwise alter the physical, chemical, radiological, biological or bacteriological properties of any waters of the state in any manner not already lawfully authorized;
    5. The construction or use of any new outlet for the discharge of any wastes into the waters of the state;
    6. The discharge of sewage, industrial wastes or other wastes into waters, or a location from which it is likely that the discharged substance will move into waters;
      1. The construction, installation, or operation of a liquid waste management system supporting an animal feeding operation that stables or confines as many as, or more than, the numbers of animals specified by federal law defining a large concentrated animal feeding operation;
      2. A state operating permit issued pursuant to this subdivision (b)(7) shall be enforceable only in regards to submission and maintenance of a current approved nutrient management plan;
      3. Animal feeding operations that are not required under this subdivision (b)(7) to have a permit may apply for and be issued a state operating permit. An animal feeding operation issued a state operating permit pursuant to this subdivision (b)(7) is required to conduct such operations in accordance with the permit;
    7. The discharge of sewage, industrial wastes, or other wastes into a well or a location where it is likely that the discharged substance will move into a well, or the underground placement of fluids and other substances that do or may affect the waters of the state;
    8. The diversion of water through a flume for the purpose of generation of electric power by a utility; or
      1. Animal feeding operations that are required under the federal Clean Water Act (33 U.S.C. § 1251 et seq.), to have a permit for concentrated animal feeding operations. Such operations must be conducted in accordance with the conditions of a valid national pollutant discharge elimination system (NPDES) permit;
      2. Animal feeding operations that are not required under the federal Clean Water Act to have a permit for concentrated animal feeding operations may apply for and, if eligible under federal law, be issued a NPDES permit. An animal feeding operation issued a NPDES permit pursuant to this subdivision (b)(10)(B) is required to conduct such operations in accordance with the permit.
  3. Any person operating or planning to operate a sewerage system shall file an application with the commissioner for a permit or, when necessary, for modification of such person's existing permit. Unless a person holds a valid permit, it is unlawful to operate a sewerage system.
  4. Nothing in this section shall be construed to require any person discharging into a septic tank connected only to a subsurface drainfield, or any person constructing or operating a sanitary landfill between March 25, 1980, and March 24, 1982, except in a county having a population of not less than sixty thousand two hundred fifty (60,250) nor more than sixty thousand three hundred fifty (60,350), according to the 1970 federal census or any subsequent federal census, as defined and regulated by §§ 68-211-101 — 68-211-115, to secure a permit; provided, that the exemption provided in this subsection (d) shall not exempt such person from any other provision of this part; and provided further, that any such person who is exempt from obtaining a permit for constructing or operating a sanitary landfill between March 25, 1980, and March 24, 1982, shall not thereafter be required to obtain such permit.
  5. Applicants for permits that would authorize a new or expanded wastewater discharge into surface waters shall include in the application consideration of alternatives, including, but not limited to, land application and beneficial reuse of the wastewater.
  6. With regard to permits for activities related to the surface mining of coal:
    1. No permit shall be issued that would allow removal of coal from the earth from its original location by surface mining methods or surface access points to underground mining within one hundred feet (100') of the ordinary high water mark of any stream or allow overburden or waste materials from removal of coal from the earth by surface mining of coal to be disposed of within one hundred feet (100') of the ordinary high water mark of a stream; provided, however, that a permit may be issued or renewed for stream crossings, including, but not limited to, rail crossings, utilities crossings, pipeline crossings, minor road crossings, for operations to improve the quality of stream segments previously disturbed by mining and for activities related to and incidental to the removal of coal from its original location, such as transportation, storage, coal preparation and processing, loading and shipping operations within one hundred feet (100') of the ordinary high water mark of a stream if necessary due to site specific conditions that do not cause the loss of stream function and do not cause a discharge of pollutants in violation of water quality criteria. Nothing in this subdivision (f)(1) shall apply to placement of material from coal preparation and processing plants;
    2. Without limiting the applicability of this section, if the commissioner determines that surface coal mining at a particular site will violate water quality standards because acid mine drainage from the site will not be amenable to treatment with proven technology both during the permit period or subsequent to completion of mining activities, the permit shall be denied.
    1. The commissioner may grant permits authorizing the discharges or activities described in subsection (b), including, but not limited to, land application of wastewater, but in granting such permits shall impose such conditions, including effluent standards and conditions and terms of periodic review, as are necessary to accomplish the purposes of this part, and as are not inconsistent with the regulations promulgated by the board.
    2. Under no circumstances shall the commissioner issue a permit for an activity that would cause a condition of pollution either by itself or in combination with others.
    3. If a permit is required under this part for a public transportation project commissioned by a federal, state, or local government, the alternatives analysis required by Tenn. Comp. R & Regs. 0400-40-07-.04(5) does not need to include alternative road locations but must include other measures to avoid and minimize impacts to resource values.
    4. In addition, the permits shall include:
      1. The most stringent effluent limitations and schedules of compliance, either promulgated by the board, required to implement any applicable water quality standards, necessary to comply with an area-wide waste treatment plan, or necessary to comply with other state or federal laws or regulations;
      2. A definite term, not to exceed five (5) years, for which the permit is valid. This term is subject to provisions for modification, revocation, or suspension of the permit;
      3. Monitoring, recording, reporting, and inspection requirements; and
      4. In the case of permits authorizing discharges from publicly owned treatment works, terms and conditions requiring the permittee to enforce user and cost recovery charges, pretreatment standards, and toxic effluent limitations applicable to industrial users discharging into the treatment works.
  7. The commissioner may revoke, suspend, or modify any permit for cause, including:
    1. Violation of any terms or conditions of the permit or of any provision of this part;
    2. Obtaining the permit by misrepresentation or failing to disclose fully all relevant facts; or
    3. A change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge.
  8. No permit under subsection (g) or (h) for the construction of any new outlet or for construction activities involved in the development of natural resources, for the construction of a new waste treatment system or for the modification or extension of an existing waste treatment system shall be issued by the commissioner until the plans have first been submitted to and approved by the commissioner. No such approval shall be construed as creating a presumption of correct operation nor as warranting by the commissioner that the approved facilities will reach the designated goals. If an environmental impact statement is required for any permit, the commissioner may require the applicant to pay for its preparation. Any such impact statement must also include and address economic and social impact.
  9. Any permit procedure or other action required by or undertaken in accordance with this section or part shall be conducted in accordance with title 13, chapter 18, when the permit or action involves a major energy project, as defined in § 13-18-102.
  10. Nothing in this section shall be construed to limit or circumscribe the authority of the commissioner to issue emergency orders as specified in § 69-3-109.
  11. Where the commissioner finds that a category of activities or discharges would be appropriately regulated under a general permit, the commissioner may issue such a permit. Any person conducting activities in the category covered by a general permit shall not be required to file individual applications for permits except as provided in specific requirements of the general permit. Any person conducting activities covered under a general permit may be required by the commissioner to file an application for any individual permit. Upon the issuance of an individual permit to a person with a general permit, the applicability of the general permit to that permitted activity or discharge shall be terminated. Any person who holds an individual permit for an activity or discharge covered under a general permit may request that the individual permit be revoked. Upon such revocation, the activity or discharge shall become subject to the general permit.
  12. Notwithstanding subsection (g), upon application by a person who discharges into groundwaters of the state and who is subject to a permit issued pursuant to the Hazardous Waste Management Act, compiled in title 68, chapter 212, the commissioner may issue variances from the applicable water quality standards, criteria, or classification for groundwater; provided, that:
    1. The waters to which the variance applies are not used as a current source of drinking water and such use is not reasonably anticipated for the term of the variance and a reasonable time thereafter;
    2. The applicant demonstrates that such discharges will not pose a substantial present or potential hazard to human health or the environment as defined in Tenn. Comp. R. & Reg. 1200-01-11-.06(6)(e)(2) (reserved) in effect on April 1, 1988, and will not impair any actual, current uses other than those affected by the variance;
    3. Variances will be effective for a specific term, not to exceed the effective term of the permit;
    4. The variance is consistent with the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.),  and the federal Safe Drinking Water Act (42 U.S.C. § 300f et seq.); and
    5. The variance provided for under this subsection (m) shall be applied for and issued in accordance with procedures regarding the issuance of permits as required by regulations issued under this chapter.
    1. A chief administrative officer of a county highway department does not violate this chapter by repairing or causing the repair of up to four hundred feet (400') of highway or road in an emergency situation, if immediate repairs are necessary to protect human safety and welfare, and if such repairs comply with rules and regulations promulgated by the board that regulate the manner in which the repairs are made. Such officer need not obtain a permit prior to making such repairs under such circumstances.
    2. As soon as practicable, the chief administrative officer of a county highway department shall notify the commissioner by telephone that an emergency has arisen and that such chief administrative officer intends to make repairs in response to such emergency. The giving of such notice shall not be construed to authorize the commissioner to terminate such repairs.
    3. Within ten (10) days of the completion of any highway or road repair made pursuant to this subsection (n), the chief administrative officer of the county highway department ordering such repair shall notify the commissioner, in writing, of the action taken and the nature of the emergency necessitating such immediate repair.
  13. The following activities do not require a permit under this section:
    1. The removal of downed trees by dragging or winching and without grading or reshaping of the stream channel;
    2. The placement of downed trees on stream banks for erosion protection; and
    3. The planting of vegetation on stream banks.
  14. Unless the applicant agrees otherwise, when an individual landowner applies for a permit for debris removal or stream bank stabilization activities, the commissioner shall either issue or deny the permit or take action scheduling a public hearing on the application within sixty (60) days of receipt of a complete application; provided further, however, that the staff of the division will communicate orally or in writing to the applicant within fifteen (15) days of receipt of any such application.
    1. The alteration of a wet weather conveyance, as defined in § 69-3-103, by any activity is permitted by this subsection (q) and shall require no notice or approval; provided, that it is done in accordance with all of the following conditions:
      1. The activity may not result in the discharge of waste or other substances that may be harmful to humans or wildlife;
      2. Material may not be placed in a location or manner so as to impair surface water flow into or out of any wetland area;
        1. Sediment shall be prevented from entering other waters of the state;
        2. Erosion and sediment controls shall be designed according to the size and slope of disturbed or drainage areas to detain runoff and trap sediment and shall be properly selected, installed, and maintained in accordance with the manufacturer's specifications and good engineering practices;
        3. Erosion and sediment control measures shall be in place and functional before earth moving operations begin, and shall be constructed and maintained throughout the construction period. Temporary measures may be removed at the beginning of the work day, but shall be replaced at the end of the work day;
        4. Checkdams shall be utilized where runoff is concentrated. Clean rock, log, sandbag or straw bale checkdams shall be properly constructed to detain runoff and trap sediment. Checkdams or other erosion control devices are not to be constructed in stream. Clean rock can be of various type and size, depending on the application. Clean rock shall not contain fines, soils or other wastes or contaminants; and
      3. Appropriate steps shall be taken to ensure that petroleum products or other chemical pollutants are prevented from entering waters of the state. All spills shall be reported to the appropriate emergency management agency and to the division. In the event of a spill, measures shall be taken immediately to prevent pollution of waters of the state, including groundwater.
    2. There shall be no additional conditions upon a person's activity within a wet weather conveyance. This subdivision (q)(2) does not apply to national pollutant discharge elimination system (NPDES) permits.
  15. A person desiring to alter a specific water of the state may request a determination from the commissioner that it is a wet weather conveyance and submit a report from a qualified hydrologic professional in support of the request. If the report contains all information that is required in rules promulgated by the board, and in accordance with department procedures and guidance, and is certified by a qualified hydrologic professional to be true, accurate and complete and, if submitted after promulgation of the rules required by § 69-3-105(m), contains all information that is required in those rules, then the determination made in the report shall be presumed to be correct, unless the commissioner notifies the person, in writing, within thirty (30) days of submittal of the report, that the commissioner has affirmatively determined that there is a significant question about whether the water of the state in question is a stream or a wet weather conveyance and states the reasons for that determination. In that event, the commissioner must, within thirty (30) days following the initial notification, determine whether the water of the state in question is a stream or a wet weather conveyance and notify the person in writing of that decision and the reasons for that determination. A person may appeal a determination by the commissioner that the specific water is a stream by filing a petition for appeal with the board within thirty (30) days of receiving the commissioner's decision. For purposes of this subsection (r), a qualified hydrologic professional is a person holding a bachelor's degree in biology, geology, ecology, engineering or related sciences, having at least five (5) years of relevant experience in making hydrologic determinations and who has been certified as a hydrologic professional pursuant to rules promulgated by the board.
  16. Any NPDES permit issued pursuant to this section to a local governmental entity administering a municipal separate storm sewer system shall not impose post-construction storm water requirements, except to the extent necessary to comply with the minimum requirements of federal law. Any such NPDES permit that includes numeric or narrative effluent limitations to manage post-construction storm water shall allow the local governmental entity administering a municipal separate storm sewer system discretion in selecting measures to meet any such effluent limitations. These numeric or narrative effluent limitations to manage post-construction stormwater shall be adopted by the board as rules pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  17. This state shall not require any local governmental entity that administers a municipal separate storm sewer system under a NPDES permit issued pursuant to this section to impose control measures for post-construction storm water that exceed the minimum requirements of federal law. Any local governmental entity that adopts control measures that exceed the minimum requirements of federal law must do so by ordinance or resolution, as appropriate, by the local legislative body upon a majority vote. This subsection (t) shall not apply to any ordinance or resolution in effect on April 23, 2016, but shall not preclude a local governmental entity that administers a municipal separate storm sewer system from making changes consistent with subsection (s) and this subsection (t). When a local governmental entity seeks coverage under any future version of the NPDES permit after April 23, 2016,  such ordinance or resolution shall comply with subsection (s) and this subsection (t). The local government entity shall provide in writing the control measures that exceed federal minimum requirements to the local legislative body at least thirty (30) days in advance of a vote in order to provide for a public comment period.
    1. Notwithstanding any other law, a person who has contracted for the right to store water in a reservoir owned by the U.S. Army Corps of Engineers shall have exclusive rights to any return flows generated directly or indirectly to that reservoir by the person. The rights conferred by this subsection (u) shall be subject to any regulatory requirements imposed by the commissioner and to the availability to the person of unused storage capacity within the reservoir to store such return flows.
    2. As used in this subsection (u), “return flow” means water that is discharged directly or indirectly to a reservoir from a water reclamation facility.
    1. Compliance with a NPDES permit issued under this section shall be deemed compliance for purposes of §§ 69-3-109; 69-3-114(a); 69-3-114(b) with respect to this part or any rule, regulation, or standard of water quality promulgated by the board; 69-3-115; 69-3-116; 69-3-117; and 69-3-118(a), except for any standard imposed under Section 307 of the Federal Water Pollution Control Act for a toxic pollutant injurious to human health.
    2. Compliance includes the discharge of pollutants for which no standard or limit is set forth in the permit if:
      1. The permit holder complies with applicable reporting and disclosure requirements under this part; and
      2. The discharge of pollutants is disclosed to the department in such a manner that the discharge is within the reasonable contemplation of the department at the time of issuance of the final permit.

Acts 1971, ch. 164, § 7; 1971, ch. 386, § 2; 1973, ch. 105, § 1; 1977, ch. 366, § 1; 1980, ch. 647, §§ 1, 2; 1981, ch. 131, § 43; T.C.A., § 70-330; Acts 1983, ch. 38, § 1; 1984, ch. 804, § 6; 1988, ch. 688, §§ 3, 7; 1989, ch. 114, § 1; 1993, ch. 155, § 1; 1998, ch. 659, § 4; 1998, ch. 735, § 2; 2004, ch. 519, § 1; 2009, ch. 271, § 1; 2009, ch. 289, § 2; 2009, ch. 330, § 1; 2009, ch. 464, §§ 2, 5; 2016, ch. 1007, § 1; 2017, ch. 220, § 1; 2017, ch. 293, § 2; 2018, ch. 496, § 1; 2018, ch. 523, §§ 2, 3; 2018, ch. 845, § 1; 2019, ch. 110, § 1.

Compiler's Notes. Tenn. Comp. R. & Reg. 1200-01-11-.06(6)(e)(2), referred to in this section, is reserved.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2009, ch. 289, § 1 provided that the act, which added subsection (f), shall be known and may be cited as “The Responsible Mining Act of 2009.”

Acts 2018, ch. 496, § 2 provided that no NPDES permit regulating a local government entity's municipal separate storm sewer system shall be issued pursuant to this section, until after the rules required by subsection (s) take effect.

Acts 2018, ch. 523, § 3, which amended Acts 2017, ch. 293, §§ 3-5, changed the effective date in ch. 293 from March 1, 2018 to July 1, 2018. This amendment results in the amendment to this section by Acts 2018, ch. 523 taking effect on July 1, 2018.

Amendments. The 2019 amendment, in (g), redesignated the former first sentence as (1), redesignated the former second sentence as (2), added (3),  redesignated the former introductory language at the end and former (1)-(4) as the present introductory language of (4) and (4)(A)-(D) respectively; and substituted “This term is subject to” for “This term shall be subject to” at the beginning of the last sentence of present (4)(B).

Effective Dates. Acts 2019, ch. 110, § 2. April 11,  2019.

Cross-References. Penalties for violations of title 69, ch. 3, part 1, § 69-3-115.

Law Reviews.

Tennessee Water Law, You Never Miss the Water Till the Well Runs Dry (Vincent A. Sikora), 24 No. 5 Tenn. B.J. 12 (1988).

Attorney General Opinions. County zoning authority to regulate concentrated animal feeding operations, OAG 99-071, 1999 Tenn. AG LEXIS 71 (3/22/99).

NOTES TO DECISIONS

1. Applicability to Federal Agency.

State could not subject a federal agency, here the TVA, to the requirements of its discharge permit program where the pollution complained of does not result from the discharge of pollutants from a point source; here the dam, a nonpoint source, did not impound the water but only diverted it to a hydroelectric plant. United States ex rel. TVA v. Tennessee Water Quality Control Bd., 717 F.2d 992, 1983 U.S. App. LEXIS 16606 (6th Cir. 1983), cert. denied, Tennessee Water Quality Control Bd. v. Tennessee Valley Authority, 466 U.S. 937, 104 S. Ct. 1909, 80 L. Ed. 2d 458, 1984 U.S. LEXIS 1812 (1984).

2. Penalties.

Tennessee Solid Waste Disposal Control Board did not abuse its discretion in adopting an order that assessed penalties against a limited liability company (LLC) with remediation efforts in mind because the State's focus on preserving the LLC's resources for remediation of the site was a reasonable one; the Board was not without justification when it made the civil penalties provided for in the consent order contingent upon the LLC's failure to comply with the ordered remediation activities. Starlink Logistics, Inc. v. ACC, LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 118 (Tenn. Ct. App. Mar. 11, 2015), rev'd, Starlink Logistics, Inc. v. ACC, LLC, 494 S.W.3d 659, 2016 Tenn. LEXIS 317 (Tenn. May 9, 2016).

3. Consent Order.

Approval by the Tennessee Solid Waste Disposal Control Board of an amended consent order detailing necessary actions to be taken by a landfill permit holder to address the pollution issues of a creek and a lake was appropriate because the Board had the authority to approve the plan in the order to reduce the contamination stemming from a permit holder's landfill by diverting storm water away from the site and subsequently removing the waste from the landfill without the requirement of a National Pollutant Discharge Elimination System permit. Starlink Logistics, Inc. v. Acc, LCC, — S.W.3d —, 2018 Tenn. App. LEXIS 57 (Tenn. Ct. App. Jan. 31, 2018), appeal denied, Starlink Logistics Inc. v. ACC, LLC, — S.W.3d —, 2018 Tenn. LEXIS 311 (Tenn. June 7, 2018).

69-3-109. Complaints — Orders for corrective action.

    1. Whenever the commissioner has reason to believe that a violation of any provision of this part or regulation promulgated thereunder or orders issued pursuant thereto has occurred, is occurring, or is about to occur, the commissioner may cause a written complaint to be served upon the alleged violator or violators.
    2. The complaint shall specify the provision or provisions of this part or regulation or order alleged to be violated or about to be violated and the facts alleged to constitute a violation thereof, may order that necessary corrective action be taken within a reasonable time to be prescribed in such order, and shall inform the violators of the opportunity for a hearing before the board. Upon the request of the alleged violator or violators, the department shall promptly make available and provide access to any documents and other information that address the factual and scientific basis of the complaint.
    3. Any such order shall become final and not subject to review unless the person or persons named in the order request by written petition a hearing before the board, as provided in § 69-3-110, no later than thirty (30) days after the date such order is served; provided, that the board may review such final order on the same grounds upon which a court of the state may review default judgments.
    1. Whenever the commissioner, with the concurrence of the governor, finds that an emergency exists imperatively requiring immediate action to protect the public health, safety, or welfare, or the health of animals, fish, or aquatic life, or a public water supply, or recreational, commercial, industrial, agricultural, or other reasonable uses, the commissioner may, without prior notice, issue an order reciting the existence of such an emergency and requiring that such action be taken as the commissioner deems necessary to meet the emergency.
    2. If the violator fails to respond or is unable to respond to the commissioner's order, the commissioner may take such emergency action as the commissioner deems necessary, or contract with a qualified person or persons to carry out the emergency measures. The commissioner may assess the person or persons responsible for the emergency condition for actual costs incurred by the commissioner in meeting the emergency.
    3. Furthermore, the commissioner is empowered to establish programs and procedures to qualify the state for emergency funding from the federal government.
  1. Except as otherwise expressly provided, any notice, complaint, order, or other instrument issued by or under authority of this part may be served on any person affected thereby personally, by the commissioner or any person designated by the commissioner, or such service may be made in accordance with Tennessee statutes authorizing service of process in civil actions. Proof of service shall be filed in the office of the commissioner.

Acts 1971, ch. 164, § 8; 1971, ch. 386, § 3; 1977, ch. 366, § 1; T.C.A., § 70-331; Acts 2008, ch. 1056, § 1.

NOTES TO DECISIONS

1. Federal Law.

Where an order of the Tennessee department of environment and conservation against a city became final under T.C.A. § 69-3-109(a)(3), and the city fully complied with the order, citizens lacked standing for an action under the Clear Water Act, 33 U.S.C. §§ 1251—1387, and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the city's remedial actions preceded the citizens' action, and the action was not prompted by state or federal agency inaction. Ailor v. City of Maynardville, 368 F.3d 587, 2004 FED App. 141P, 2004 U.S. App. LEXIS 9527 (6th Cir. 2004).

69-3-110. Hearings.

  1. Any hearing brought before the board pursuant to § 69-3-105(i), § 69-3-109, § 69-3-115, § 69-3-116, or § 69-3-118 shall be conducted as a contested case. The hearing shall be heard before an administrative judge sitting alone pursuant to §§ 4-5-301(a)(2) and 4-5-314(b), unless settled by the parties. The administrative judge to whom the case has been assigned shall convene the parties for a scheduling conference within thirty (30) days of the date the petition is filed. The scheduling order for the contested case issued by the administrative judge shall establish a schedule that results in a hearing being completed within one hundred eighty (180) days of the scheduling conference, unless the parties agree to a longer time or the administrative judge allows otherwise for good cause shown, and an initial order being issued within sixty (60) days of completion of the record of the hearing. The administrative judge's initial order, together with any earlier orders issued by the administrative judge, shall become final unless appealed to the board by the commissioner or other party within thirty (30) days of entry of the initial order or, unless the board passes a motion to review the initial order pursuant to § 4-5-315, within the longer of thirty (30) days or seven (7) days after the first board meeting to occur after entry of the initial order. Upon appeal to the board by a party, or upon passage of a motion of the board to review the administrative judge's initial order, the board shall afford each party an opportunity to present briefs, shall review the record and allow each party an opportunity to present oral argument. If appealed to the board, the review of the administrative judge's initial order shall be limited to the record, but shall be de novo with no presumption of correctness. In such appeals, the board shall thereafter render a final order, in accordance with § 4-5-314, affirming, modifying, remanding, or vacating the administrative judge's order. A final order rendered pursuant to this section is effective upon its entry, except as provided in § 4-5-320(b) unless a later effective date is stated therein. A petition to stay the effective date of a final order may be filed under § 4-5-316. A petition for reconsideration of a final order may be filed pursuant to § 4-5-317. Judicial review of a final order may be sought by filing a petition for review in accordance with § 4-5-322. An order of an administrative judge that becomes final in the absence of an appeal or review by the board shall be deemed to be a decision of the board in that case for purposes of the standard of review by a court; however, in other matters before the board, it may be considered but shall not be binding on the board.
  2. In case of contumacy or refusal to obey a notice of hearing or subpoena issued under this section, the chancery court of Davidson County, or the chancery court of the county in which the hearing is conducted, shall have jurisdiction upon application of the board or commissioner to issue an order requiring such person to appear and testify or produce evidence as the case may require, and any failure to obey such order of the court may be punished by such court as contempt.
  3. The decision of the board shall become final and binding on all parties unless appealed to the courts as provided in § 69-3-111.
  4. Any person to whom an emergency order is directed pursuant to § 69-3-109(b) shall comply immediately, but on petition to the board shall be afforded a hearing as soon as possible, but in no case shall such hearing be held later than three (3) days from the receipt of such petition by the board.
  5. Any hearing required by this section or chapter shall be conducted in accordance with § 13-18-114 when the hearing involves a major energy project, as defined by § 13-18-102.

Acts 1971, ch. 164, § 9; 1971, ch. 386, § 4; 1973, ch. 98, § 5; 1977, ch. 366, § 1; 1981, ch. 131, § 44; T.C.A., § 70-332; Acts 1984, ch. 804, § 7; 2007, ch. 362, § 37; 2013, ch. 181, §§ 15, 16; 2014, ch. 624, § 4.

Compiler's Notes. Acts 2013, ch. 181, § 19 provided that for the purpose of construing the act in relation to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the act shall be deemed to be procedural in nature. It is the intent of the general assembly that Acts 2013, chapter 181 and the Uniform Administrative Procedures Act shall be complied with, however when in conflict, the provisions of Acts 2013, chapter 181 shall govern.

Acts 2013, ch. 181, § 20 provided that the act, which amended subsection (a) and deleted subsection (c), shall apply to all cases filed on or after July 1, 2013.

Cross-References. Contempt of court, title 29, ch. 9.

NOTES TO DECISIONS

1. Time for Holding Hearing.

There is no requirement in this section that the hearing be completed within 60 days; commencement within 60 days is sufficient absent some showing of prejudice. Big Fork Mining Co. v. Tennessee Water Quality Control Bd., 620 S.W.2d 515, 1981 Tenn. App. LEXIS 609 (Tenn. Ct. App. 1981).

69-3-111. Appeals.

An appeal may be taken from any final order or other final determination of the board by any party, with the exception of the department. An appeal from a final order or other final determination of the board is instituted by filing a petition for review in the chancery court of Davidson County, or in the chancery court of the county in which the violation of this chapter occurred. The alleged violator shall elect in which court to file the petition for review.

Acts 1971, ch. 164, § 10; 1971, ch. 386, § 5; 1977, ch. 366, § 1; 1981, ch. 449, § 2; T.C.A., § 70-333; Acts 1984, ch. 804, § 8; 1993, ch. 156, § 1; 2013, ch. 181, § 17.

Compiler's Notes. Acts 1993, ch. 156, § 2 provided that the amendment by that act applied to all petitions for review filed on or after July 1, 1993.

Acts 2013, ch. 181, § 19 provided that for the purpose of construing the act in relation to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the act shall be deemed to be procedural in nature. It is the intent of the general assembly that Acts 2013, chapter 181 and the Uniform Administrative Procedures Act shall be complied with, however when in conflict, the provisions of Acts 2013, chapter 181 shall govern.

Acts 2013, ch. 181, § 20 provided that the act, which amended this section, shall apply to all cases filed on or after July 1, 2013.

Cross-References. Permissive appeals to supreme court, T.R.A.P. 11.

Law Reviews.

The Tennessee Court System — Supreme Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 191.

69-3-112. Assistance in prosecuting violations.

It is the duty of the district attorneys general in the various districts throughout the state or the attorney general and reporter to assist the department, upon its request, by prosecuting those persons in violation of §§ 69-3-11569-3-117.

Acts 1971, ch. 164, § 11; 1971, ch. 386, § 6; 1977, ch. 366, § 1; 1979, ch. 422, § 20; T.C.A., § 70-334.

Law Reviews.

The Tennessee Court System — Prosecution, 8 Mem. St. U.L. Rev. 477.

69-3-113. Procurement of information.

    1. Any person whom the board or the commissioner has reason to believe is causing, or may be about to cause, pollution, or any person having information concerning such person, shall furnish the board or the commissioner, upon request by the board or commission, all pertinent information required by the board or the commissioner in the discharge of the board's or commissioner's duties under this part.
    2. Under this section, information includes data relating to processes or methods of manufacture or production required by the board, the commissioner, or officers of the United States in the administration of their duties, including secret formulae and proprietary manufacturing processes.
    3. All information shall be used by the board only for purposes of water quality control. The board or the commissioner has the power to issue protection orders to prevent public dissemination of any secret formulae or proprietary manufacturing processes, except that such orders shall not extend to information concerning waste products discharged into the waters of the state.
    4. In addition to providing information, persons may be required to keep such records as deemed necessary by the board or the commissioner to facilitate the discharge of their duties.
  1. Any information obtained by the board or commissioner, except secret formulae or proprietary manufacturing processes, pursuant to this section, shall be available to the public for reasonable inspection and copying.

Acts 1971, ch. 164, § 12; 1977, ch. 366, § 1; T.C.A., § 70-335.

Cross-References. Confidentiality of public records, § 10-7-504.

69-3-114. Causing pollution or refusing to furnish information.

  1. It is unlawful for any person to discharge any substance into the waters of the state or to place or cause any substance to be placed in any location where such substances, either by themselves or in combination with others, cause any of the damages as defined in § 69-3-103, unless such discharge shall be due to an unavoidable accident or unless such action has been properly authorized. Any such action is declared to be a public nuisance.
  2. In addition, it is unlawful for any person to act in a manner or degree that is violative of any provision of this part or of any rule, regulation, or standard of water quality promulgated by the board or of any permits or orders issued pursuant to this part; or to fail or refuse to file an application for a permit as required in § 69-3-108; or to refuse to furnish, or to falsify any records, information, plans, specifications, or other data required by the board or the commissioner under this part.
  3. The plea of financial inability to prevent, abate, or control pollution shall not be a valid defense under this part.

Acts 1971, ch. 164, § 13; 1972, ch. 631, § 2; 1977, ch. 366, § 1; T.C.A., § 70-336.

Cross-References. Abatement of nuisances, title 29, ch. 3.

Penalties for violations of title 69, ch. 3, part 1, § 69-3-115.

NOTES TO DECISIONS

1. Federal Law.

Where a city fully complied with an order of the Tennessee department of environment and conservation to remedy violations of T.C.A. § 69-3-108(b)(3), (6) and T.C.A. § 69-3-114(b), citizens lacked standing for an action under the Clear Water Act, 33 U.S.C. §§ 1251-1387, and the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the city's remedial actions preceded the citizens' action, and the action was not prompted by state or federal agency inaction. Ailor v. City of Maynardville, 368 F.3d 587, 2004 FED App. 141P, 2004 U.S. App. LEXIS 9527 (6th Cir. 2004).

2. Penalties.

Tennessee Solid Waste Disposal Control Board did not abuse its discretion in adopting an order that assessed penalties against a limited liability company (LLC) with remediation efforts in mind because the State's focus on preserving the LLC's resources for remediation of the site was a reasonable one; the Board was not without justification when it made the civil penalties provided for in the consent order contingent upon the LLC's failure to comply with the ordered remediation activities. Starlink Logistics, Inc. v. ACC, LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 118 (Tenn. Ct. App. Mar. 11, 2015), rev'd, Starlink Logistics, Inc. v. ACC, LLC, 494 S.W.3d 659, 2016 Tenn. LEXIS 317 (Tenn. May 9, 2016).

Tennessee Solid Waste Disposal Control Board did not abuse its discretion in adopting an order that assessed penalties against a limited liability company (LLC) with remediation efforts in mind because the State's focus on preserving the LLC's resources for remediation of the site was a reasonable one; the Board was not without justification when it made the civil penalties provided for in the consent order contingent upon the LLC's failure to comply with the ordered remediation activities. Starlink Logistics, Inc. v. ACC, LLC, — S.W.3d —, 2015 Tenn. App. LEXIS 118 (Tenn. Ct. App. Mar. 11, 2015), rev'd, Starlink Logistics, Inc. v. ACC, LLC, 494 S.W.3d 659, 2016 Tenn. LEXIS 317 (Tenn. May 9, 2016).

3. Consent Order.

Approval by the Tennessee Solid Waste Disposal Control Board of an amended consent order detailing necessary actions to be taken by a landfill permit holder to address the pollution issues of a creek and a lake was appropriate because the Board had the authority to approve the plan in the order to reduce the contamination stemming from a permit holder's landfill by diverting storm water away from the site and subsequently removing the waste from the landfill without the requirement of a National Pollutant Discharge Elimination System permit. Starlink Logistics, Inc. v. Acc, LCC, — S.W.3d —, 2018 Tenn. App. LEXIS 57 (Tenn. Ct. App. Jan. 31, 2018), appeal denied, Starlink Logistics Inc. v. ACC, LLC, — S.W.3d —, 2018 Tenn. LEXIS 311 (Tenn. June 7, 2018).

69-3-115. Violations — Penalties — Judgment by consent.

    1. Any person who does any of the following acts or omissions is subject to a civil penalty of up to ten thousand dollars ($10,000) per day for each day during which the act or omission continues or occurs:
      1. Violates an effluent standard or limitation or a water quality standard established under this part;
      2. Violates the terms or conditions of a permit;
      3. Fails to complete a filing requirement or causes false information to be filed with the department;
      4. Fails to allow or perform an entry, inspection, monitoring, or reporting requirement;
      5. Violates a final determination or order of the board, panel or commissioner;
      6. In the case of an industrial user of a publicly owned treatment works, fails to pay user or cost recovery charges or violates pretreatment standards or toxic effluent limitations established as a condition in the permit of the treatment works;
      7. After reasonable notice and opportunity to restore a ditch constructed pursuant to § 69-3-130, the owner of the property fails to restore the ditch to permit specifications; or
      8. Violates any other provision of this part or any rule or regulation promulgated by the board.
    2. Any civil penalty shall be assessed in the following manner:
      1. The commissioner may issue an assessment against any person responsible for the violation;
      2. Any person against whom an assessment has been issued may secure a review of such assessment by filing with the commissioner a written petition setting forth the grounds and reasons for the objections, and asking for a hearing in the matter involved before the board. If a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final;
      3. Whenever any assessment has become final because of a person's failure to appeal the commissioner's assessment, the commissioner may apply to the appropriate court for a judgment and seek execution of such judgment and the court, in such proceedings, shall treat a failure to appeal such assessment as a confession of judgment in the amount of the assessment; and
      4. The commissioner, through the attorney general and reporter, may institute proceedings for assessment in the chancery court of Davidson County or in the chancery court of the county in which all or part of the pollution or violation occurred, in the name of the department.
    3. In assessing the civil penalty, the commissioner may consider the following factors:
      1. Whether the civil penalty imposed will be a substantial economic deterrent to the illegal activity;
      2. Damages to the state, including compensation for loss or destruction of wildlife, fish, and other aquatic life, resulting from the violation, as well as expenses involved in enforcing this section and the costs involved in rectifying any damage;
      3. Cause of the discharge or violation;
      4. The severity of the discharge and its effect upon the quality and quantity of the receiving waters;
      5. Effectiveness of action taken by the violator to cease the violation;
      6. The technical and economic reasonableness of reducing or eliminating the discharge;
      7. The social and economic value of the discharge source; and
      8. The economic benefit gained by the violator.
    4. The board may establish by regulation a schedule of the amount of civil penalty that can be assessed by the commissioner for certain specific violations or categories of violations.
  1. Any person unlawfully polluting the waters of the state or violating or failing, neglecting, or refusing to comply with any of the provisions of this part, commits a Class C misdemeanor. Each day upon which such violation occurs constitutes a separate offense.
  2. Any person who willfully and knowingly falsifies any records, information, plans, specifications, or other data required by the board or the commissioner, or who willfully and knowingly pollutes the waters of the state, or willfully fails, neglects or refuses to comply with any of the provisions of this part commits a Class E felony and shall be punished by a fine of not more than twenty-five thousand dollars ($25,000) or incarceration, or both.
  3. The department is the sole state agency authorized to conduct investigations arising under this part. Notwithstanding any law to the contrary, other state agencies may assist the department in satisfying the duties arising under this part. The department of agriculture shall be notified of investigations associated with agricultural activities.
    1. Whenever any order or assessment has become a final action under this section, a notarized copy of the same may be filed in the office of the clerk of the chancery court of Davidson County, and shall be considered as an agreement of the parties thereto to entry of a judgment by consent, the terms and conditions of which shall be the same as those recited in the final order or assessment. Except as otherwise provided in this section, the procedures for entry of the judgment and the effect thereof shall be the same as provided in title 26, chapter 6.
    2. If the final action is by the board, the judgment by consent shall be promptly entered by the court and shall be effective upon entry, and it shall have the same effect and be subject to the same procedures as a judgment of a court of record of this state and may be enforced or satisfied in like manner.
    3. If the final action is by the commissioner, the judgment by consent shall be promptly entered by the chancery court, but shall not become a final judgment until expiration of a period ending forty-five (45) days after the date it was filed. During this period, any citizen shall have the right to intervene in such proceeding on the grounds that the remedy or remedies provided are inadequate or are based on erroneously stated facts. If intervention occurs, the court shall determine whether it is duplicitous or frivolous and shall notify the parties and the intervenor of its determination. If determined not to be duplicitous or frivolous, review of the order or assessment shall be deemed to be sought by all parties and shall proceed in accordance with § 4-5-322. If no citizen intervenes or if any such intervention is deemed duplicitous or frivolous, upon the expiration of the forty-five-day period, the judgment by consent shall be final, and it shall have the same effect and be subject to the same procedures as a judgment of a court of record of this state and may be enforced or satisfied in like manner.

Acts 1971, ch. 164, § 14; 1971, ch. 386, § 7; 1972, ch. 631, § 3; 1977, ch. 366, § 1; 1979, ch. 422, § 21; T.C.A., § 70-337; Acts 1985, ch. 160, § 1; 1988, ch. 688, § 1; 1989, ch. 321, § 10; 1989, ch. 591, §§ 101, 113; 1991, ch. 123, § 3; 2007, ch. 362, § 19; 2017, ch. 148, § 3.

Compiler's Notes. Acts 1989, ch. 321, § 15 provided that the amendment of this section by that act does not affect rights or duties that matured, liabilities that were incurred, or proceedings begun before May 18, 1989.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

Pretreatment enforcement, penalties, § 69-3-125.

NOTES TO DECISIONS

1. Constitutionality.

T.C.A. § 69-3-115, which requires that the district attorney general or the grand jury obtain permission from either the water quality control board (now the board of water quality, oil and gas) or the commissioner of the department of health and environment (now environment and conservation) before a warrant, presentment, or indictment, is unconstitutional because it infringes upon the prosecutorial discretion of the district attorney general and circumscribes the independence of the grand jury to investigate crimes and issue presentments. State v. Superior Oil, Inc., 875 S.W.2d 658, 1994 Tenn. LEXIS 110 (Tenn. 1994).

2. Bankruptcy.

The water quality control board's (now the board of water quality, oil and gas) proceedings to fix civil liability under this part are within the exception to the automatic stay in bankruptcy. Word v. Commerce Oil Co., 847 F.2d 291, 1988 U.S. App. LEXIS 6901 (6th Cir. 1988).

3. Penalty.

Owner of an auto repair business was properly fined by the Tennessee Department of Environment and Conservation because the penalty assessed was not arbitrary and capricious in light of the owner's widespread noncompliance with the owner's storm water permit – failure to properly provide required reports, failure to do required site sampling, and submission of a storm water pollution prevention plan years past due – over a period spanning several years. Davis v. Tenn. Bd. of Water Quality, Oil & Gas, — S.W.3d —, 2017 Tenn. App. LEXIS 693 (Tenn. Ct. App. Oct. 16, 2017).

69-3-116. Damages to the state.

  1. The commissioner may assess the liability of any polluter or violator for damages to the state resulting from any person's pollution or violation, failure, or neglect in complying with any rules, regulations, or standards of water quality promulgated by the board or permits or orders issued pursuant to this part.
  2. If an appeal from such assessment is not made to the board by the polluter or violator within thirty (30) days of notification of such assessment, the pollutor or violator shall be deemed to have consented to such assessment and it shall become final.
  3. Damages may include any expenses incurred in investigating and enforcing this part, in removing, correcting, and terminating any pollution, and also compensation for any loss or destruction of wildlife, fish, or aquatic life and any other actual damages caused by the pollution or violation.
  4. Whenever any assessment has become final because of a person's failure to appeal within the time provided, the commissioner may apply to the appropriate court for a judgment, and seek execution on such judgment. The court, in such proceedings, shall treat the failure to appeal such assessment as a confession of judgment in the amount of the assessment.

Acts 1971, ch. 164, § 15; 1977, ch. 366, § 1; T.C.A., § 70-338.

69-3-117. Proceedings against violators — Injunctions.

The commissioner may initiate proceedings in the chancery court of Davidson County or the county in which the activities occurred against any person who is alleged to have violated or is about to violate this part, conditions of permits issued under this part, the rules and regulations of the board or orders of the board or commissioner. In such action the commissioner may seek, and the court may grant, injunctive relief and any other relief available in law or equity. Specifically, the commissioner may seek injunctive relief against industrial users of publicly owned treatment works who fail to pay user or cost recovery charges or who violate pretreatment standards or toxic effluent limitations established as a condition to the permit of the treatment works.

Acts 1971, ch. 164, § 16; 1972, ch. 444, § 1; 1977, ch. 366, § 1; 1979, ch. 422, § 22; T.C.A., § 70-339; Acts 1984, ch. 804, § 9.

69-3-118. Other remedies.

    1. Any person may file with the commissioner a signed complaint against any person allegedly violating any provisions of this part. Unless the commissioner determines that such complaint is duplicitous or frivolous, the commissioner shall immediately serve a copy of it upon the person or persons named in the complaint, promptly investigate the allegations contained in the complaint, and notify the alleged violator of what action, if any, the commissioner will take. In all cases, the commissioner shall notify the complainant of the action or determination within ninety (90) days from the date of the commissioner's receipt of the written complaint.
    2. If either the complainant or the alleged violator believes that the commissioner's action or determination is or will be inadequate or too severe, such person may appeal to the board for a hearing, which will be conducted pursuant to § 69-3-110. The appeal must be made within thirty (30) days after receipt of the notification sent by the commissioner.
    3. If the commissioner fails to take the action stated in the notification, the complainant may make an appeal to the board within thirty (30) days from the time at which the complainant knows or has reason to know of such failure.
    4. The department shall not be obligated to assist a complainant in gathering information or making investigations or to provide counsel for the purpose of drawing up the complaint.
  1. The penalties, damages, and injunctions provided for in §§ 69-3-115 — 69-3-119 are intended to provide additional and cumulative remedies to prevent, abate, and control the pollution of the waters of the state. Nothing contained in this section shall be construed to abridge or alter rights of action or remedies in equity or under common law or statutory law, criminal or civil, nor shall any provision of §§ 69-3-115 — 69-3-117 or this section, or any act done by virtue thereof, be construed as estopping the state or any municipality or person, as riparian owners or otherwise, in the exercise of their rights in equity or under the common law or statutory law to suppress nuisances, to abate pollution, or to recover damages resulting from such pollution.
  2. The board, department or its officials and employees acting in their official capacity shall not be considered “persons” pursuant to this section.

Acts 1971, ch. 164, § 17; 1971, ch. 386, § 8; 1977, ch. 366, § 1; T.C.A., § 70-340; Acts 1984, ch. 804, § 10.

69-3-119. Disposition of fees, penalties and damages.

All fees, penalties, and damages assessed and collected under this part shall be placed in a special fund and earmarked, allocated, and appropriated to the division for the purpose of complying with this part. Any unexpended balance of the special fund in any fiscal year shall revert to the general fund.

Acts 1971, ch. 164, § 18; 1971, ch. 386, § 9; 1977, ch. 366, § 1; T.C.A., § 70-341; Acts 1984, ch. 804, § 11; 1992, ch. 693, § 1.

69-3-120. Construction of part.

  1. This part is intended to supplement other provisions of the Tennessee Code Annotated, and no part thereof shall be construed to repeal any such provisions specifically enacted for the protection of health or the protection of fish and game of the state, except that the administration of any laws pertaining to the pollution of waters as defined in § 69-3-103 shall be in accordance with the general policies and regulations adopted by the board.
  2. All sections in this part shall be liberally construed for the accomplishment of its policy and purpose.
  3. All grants of power to the board or commissioner shall be liberally construed.
  4. Any list in this part preceded by “include” or “including” shall not be construed as exhaustive or otherwise limiting unless specifically stated.
  5. All procedures in this part are intended to be in conformity with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. If any provision of this part conflicts with the Uniform Administrative Procedures Act, then the latter shall govern.
  6. If any section, subsection, sentence, clause, phrase, or words of this part are for any reason held to be invalid, such decree shall not affect the validity of any remaining portion of this part.
  7. Nothing whatsoever in this part shall be so construed as applying to any agricultural or forestry activity or the activities necessary to the conduct and operations thereof or to any lands devoted to the production of any agricultural or forestry products, unless there is a point source discharge from a discernible, confined, and discrete water conveyance.
  8. The passage of the Water Quality Control Act of 1977 shall grant no new authority over non-point sources to the department, which was not previously established by the Water Quality Control Act of 1971. In all cases of conflict between this part and §§ 68-221-101 — 68-221-108, the Sanitary Engineering Law, this part shall take precedence.

Acts 1971, ch. 164, § 19; 1977, ch. 366, §§ 1, 3; T.C.A., § 70-342; Acts 1992, ch. 693, § 1.

Compiler's Notes. The Water Quality Control Act of 1971, referred to in this section, was enacted by Acts 1971, ch. 164 and compiled as former §§ 70-324 — 70-342 as they existed prior to the enactment of Acts 1977, ch. 366.

69-3-121. Continuation of rules and regulations, permits, contracts and agreements.

  1. The rules and regulations previously promulgated under the Water Quality Control Act of 1971 shall remain in effect as the rules and regulations under this part. Any of these rules or regulations that may conflict with a statutory provision of this part are hereby rendered void, but shall not affect the validity of the remaining rules and regulations.
  2. All permits and temporary permits issued under the Water Quality Control Act of 1971 shall remain in effect under this part until such time as they expire or are revoked or modified pursuant to this part.
  3. Any contracts, agreements, plans or any other documents developed under the Water Quality Control Act of 1971 shall remain in effect under this part.

Acts 1977, ch. 366, § 2; T.C.A., § 70-343.

Compiler's Notes. The Water Quality Control Act of 1971, referred to in this section, was enacted by Acts 1971, ch. 164 and compiled as former §§ 70-324 — 70-342 as they existed prior to the enactment of Acts 1977, ch. 366.

69-3-122. Sewerage system contractors or operators — Bonds or security — Noncomplying or abandoned facilities.

  1. No person shall construct, operate or hold out to the public as proposing to construct or operate a sewerage system unless such person first provides a bond or other financial security to the department, and has received approval of the same.
  2. The board may by regulation establish the amount and form of such bond or financial security for various sizes and types of facilities. In no case shall the amount of the bond or financial security exceed seventy-five thousand dollars ($75,000). The purpose of the bond or financial security shall be the protection of the public health, welfare, and the environment of the state.
  3. The commissioner may petition the chancery court of the county in which the facility is located for forfeiture of the bond or other financial security, if the department determines that:
    1. The continued operation or lack of operation of a facility covered by this section represents a threat to the health of the public or is causing or will cause violations of classified water uses that the board has established;
    2. All reasonable and practical efforts under the circumstances have been made to obtain corrective actions from persons responsible for the facility; and
    3. It does not appear that corrective actions can or will be taken within an appropriate time or it appears that the facility has been abandoned.
  4. The proceeds of such forfeiture shall be paid into the court and, pursuant to the order of the court, used in combination with any remedy provided by law or equity that will correct or mitigate the noncompliance of such facility.
  5. If the court finds that a facility covered by this section has been abandoned or that services of the facility have been terminated, the court may enter such orders regarding the continued operations of such facility as it deems necessary to protect the public.
  6. This section does not apply to the following:
    1. Facilities owned or operated by a governmental entity or agency; or
    2. Facilities in operation prior to May 25, 1984.

Acts 1984, ch. 804, § 12.

69-3-123. Pretreatment enforcement — Procedure — Complaints — Orders.

    1. Whenever the local administrative officer of any pretreatment agency has reason to believe that a violation of any provision of the pretreatment program of the pretreatment agency or orders of the local hearing authority issued pursuant thereto has occurred, is occurring, or is about to occur, the local administrative officer may cause a written complaint to be served upon the alleged violator or violators.
    2. The complaint shall specify the provision or provisions of the pretreatment program or order alleged to be violated or about to be violated and the facts alleged to constitute a violation thereof, may order that necessary corrective action be taken within a reasonable time to be prescribed in such order, and shall inform the violators of the opportunity for a hearing before the local hearing authority.
    3. Any such order shall become final and not subject to review unless the person or persons named in the order request by written petition a hearing before the local hearing authority as provided in § 69-3-124, no later than thirty (30) days after the date such order is served; provided, that the local hearing authority may review such final order on the same grounds upon which a court of the state may review default judgments.
    1. Whenever the local administrative officer finds that an emergency exists imperatively requiring immediate action to protect the public health, safety, or welfare, the health of animals, fish or aquatic life, a public water supply, or the facilities of the publicly owned treatment works of the pretreatment agency, the local administrative officer may, without prior notice, issue an order reciting the existence of such an emergency and requiring that such action be taken as the local administrative officer deems necessary to meet the emergency.
    2. If the violator fails to respond or is unable to respond to the local administrative officer's order, the local administrative officer may take such emergency action as the local administrative officer deems necessary, or contract with a qualified person or persons to carry out the emergency measures. The local administrative officer may assess the person or persons responsible for the emergency condition for actual costs incurred by the local administrative officer in meeting the emergency.
  1. Except as otherwise expressly provided, any notice, complaint, order or other instrument issued by or under authority of this part may be served on any person affected thereby personally, by the local administrative officer or any person designated by the local administrative officer, or such service may be made in accordance with Tennessee statutes authorizing service of process in a civil action. Proof of service shall be filed in the office of the local administrative officer.

Acts 1987, ch. 111, § 2.

69-3-124. Pretreatment enforcement — Hearings.

  1. Any hearing or rehearing brought before the local hearing authority shall be conducted in accordance with the following:
    1. Upon receipt of a written petition from the alleged violator pursuant to this section, the local administrative officer shall give the petitioner thirty (30) days' written notice of the time and place of the hearing, but in no case shall such hearing be held more than sixty (60) days from the receipt of the written petition, unless the local administrative officer and the petitioner agree to a postponement;
    2. The hearing provided for in this section may be conducted by the local hearing authority at a regular or special meeting. A quorum of the local hearing authority must be present at the regular or special meeting in order to conduct the hearing provided for in this section;
    3. A verbatim record of the proceedings of such hearings shall be taken and filed with the local hearing authority, together with the findings of fact and conclusions of law made pursuant to subdivision (a)(6). The transcript so recorded shall be made available to the petitioner or any party to a hearing upon payment of a charge set by the local administrative officer to cover the costs of preparation;
    4. In connection with the hearing, the chair shall issue subpoenas in response to any reasonable request by any party to the hearing requiring the attendance and testimony of witnesses and the production of evidence relevant to any matter involved in the hearing. In case of contumacy or refusal to obey a notice of hearing or subpoena issued under this section, the chancery court of the county in which the pretreatment agency is located shall have jurisdiction upon the application of the local hearing authority or the local administrative officer to issue an order requiring such person to appear and testify or produce evidence as the case may require, and any failure to obey such order of the court may be punished by such court as contempt;
    5. Any member of the local hearing authority may administer oaths and examine witnesses;
    6. On the basis of the evidence produced at the hearing, the local hearing authority shall make findings of fact and conclusions of law and enter such decisions and orders as, in its opinion, will best further the purposes of the pretreatment program and shall give written notice of such decisions and orders to the alleged violator. The order issued under this subsection (a) shall be issued no later than thirty (30) days following the close of the hearing by the person or persons designated by the chair;
    7. The decision of the local hearing authority shall become final and binding on all parties unless appealed to the courts as provided in subsection (b); and
    8. Any person to whom an emergency order is directed pursuant to § 69-3-123 shall comply with the emergency order immediately, but on petition to the local hearing authority shall be afforded a hearing as soon as possible, but in no case shall such hearing be held later than three (3) days from the receipt of such petition by the local hearing authority.
  2. An appeal may be taken from any final order or other final determination of the local hearing authority by any party, including the pretreatment agency, who is or may be adversely affected thereby, to the chancery court pursuant to the common law writ of certiorari set out in § 27-8-101, within sixty (60) days from the date such order or determination is made.

Acts 1987, ch. 111, § 3.

Cross-References. Contempt of court, title 29, ch. 9.

69-3-125. Pretreatment enforcement — Violations — Civil penalty.

    1. Any person, including, but not limited to, industrial users, who does any of the following acts or omissions shall be subject to a civil penalty of up to ten thousand dollars ($10,000) per day for each day during which the act or omission continues or occurs:
      1. Violates an effluent standard or limitation imposed by a pretreatment program;
      2. Violates the terms or conditions of a permit issued pursuant to a pretreatment program;
      3. Fails to complete a filing requirement of a pretreatment program;
      4. Fails to allow or perform an entry, inspection, monitoring or reporting requirement of a pretreatment program;
      5. Fails to pay user or cost recovery charges imposed by a pretreatment program; or
      6. Violates a final determination or order of the local hearing authority or the local administrative officer.
    2. Any civil penalty shall be assessed in the following manner:
      1. The local administrative officer may issue an assessment against any person or industrial user responsible for the violation;
      2. Any person or industrial user against whom an assessment has been issued may secure a review of such assessment by filing with the local administrative officer a written petition setting forth the grounds and reasons for the violator's objections and asking for a hearing in the matter involved before the local hearing authority and, if a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final;
      3. Whenever any assessment has become final because of a person's failure to appeal the local administrative officer's assessment, the local administrative officer may apply to the appropriate court for a judgment and seek execution of such judgment and the court, in such proceedings, shall treat a failure to appeal such assessment as a confession of judgment in the amount of the assessment;
      4. In assessing the civil penalty, the local administrative officer may consider the following factors:
        1. Whether the civil penalty imposed will be a substantial economic deterrent to the illegal activity;
        2. Damages to the pretreatment agency, including compensation for the damage or destruction of the facilities of the publicly owned treatment works, and also including any penalties, costs and attorneys' fees incurred by the pretreatment agency as the result of the illegal activity, as well as the expenses involved in enforcing this section and the costs involved in rectifying any damages;
        3. Cause of the discharge or violation;
        4. The severity of the discharge and its effect upon the facilities of the publicly owned treatment works and upon the quality and quantity of the receiving waters;
        5. Effectiveness of action taken by the violator to cease the violation;
        6. The technical and economic reasonableness of reducing or eliminating the discharge; and
        7. The economic benefit gained by the violator; and
      5. The local administrative officer may institute proceedings for assessment in the chancery court of the county in which all or part of the pollution or violation occurred, in the name of the pretreatment agency.
    3. The local hearing authority may establish by regulation a schedule of the amount of civil penalty that can be assessed by the local administrative officer for certain specific violations or categories of violations.
  1. Any civil penalty assessed to a violator pursuant to this section may be in addition to any civil penalty assessed by the commissioner for violations of § 69-3-115(a)(1)(F). However, the sum of penalties imposed by this section and by § 69-3-115(a) shall not exceed ten thousand dollars ($10,000) per day for each day during which the act or omission continues or occurs. The state's share of any additional costs of this section shall be funded in accordance with § 9-4-5303, from the increase in state imposed taxes that are earmarked to counties and that are not designated by such counties for a particular purpose.

Acts 1987, ch. 111, § 4.

69-3-126. Pretreatment enforcement — Assessment for noncompliance with program permits or orders.

  1. The local administrative officer may assess the liability of any polluter or violator for damages to the pretreatment agency resulting from any person's or industrial user's pollution or violation, failure, or neglect in complying with any permits or orders issued pursuant to the pretreatment program or § 69-3-123, § 69-3-124, or § 69-3-125.
  2. If an appeal from such assessment is not made to the local hearing authority by the polluter or violator within thirty (30) days of notification of such assessment, the polluter or violator shall be deemed to have consented to the assessment, and it shall become final.
  3. Damages may include any expenses incurred in investigating and enforcing the pretreatment program or §§ 69-3-123 — 69-3-129, in removing, correcting, and terminating any pollution, and also compensation for any actual damages caused by the pollution or violation.
  4. Whenever any assessment has become final because of a person's failure to appeal within the time provided, the local administrative officer may apply to the appropriate court for a judgment, and seek execution on such judgment. The court, in such proceedings, shall treat the failure to appeal such assessment as a confession of judgment in the amount of the assessment.

Acts 1987, ch. 111, § 5.

NOTES TO DECISIONS

1. Damages.

Metropolitan wastewater hearing authority did not exceed its authority under T.C.A. § 69-3-126(a) by assessing costs to a business for replacing a damaged sewer line; the record contained sufficient evidence showing that the wastewater from the electroplating business caused the damage to the sewer line. Leonard Plating Co. v. Metro. Gov't of Nashville & Davidson County, 213 S.W.3d 898, 2006 Tenn. App. LEXIS 471 (Tenn. Ct. App. 2006), appeal denied,  Leonard Plating Co. v. Metro. Gov't, — S.W.3d —, 2006 Tenn. LEXIS 1219 (Tenn. 2006).

69-3-127. Pretreatment enforcement — Judicial proceedings and relief.

The local administrative officer may initiate proceedings in the chancery court of the county in which the activities occurred against any person or industrial user who is alleged to have violated or is about to violate the pretreatment program, §§ 69-3-12369-3-129, or orders of the local hearing authority or local administrative officer. In such action, the local administrative officer may seek, and the court may grant, injunctive relief and any other relief available in law or equity.

Acts 1987, ch. 111, § 6.

69-3-128. Pretreatment enforcement.

Any net increase in expenditures after subtracting out net gains from penalties and damage payments received by a local governmental entity pursuant to §§ 69-3-12369-3-129 shall be borne equally by the local governmental entity and by the department. The local governmental entity shall document and verify its expenditures before receiving reimbursement from the department.

Acts 1987, ch. 111, § 8; 1992, ch. 693, § 1.

69-3-129. Disposition of damage payments and penalties — Special fund.

All damages or penalties, or both, assessed and collected under §§ 69-3-12369-3-128 shall be placed in a special fund by the pretreatment agency and allocated and appropriated to the pretreatment agency for the administration of its pretreatment program.

Acts 1987, ch. 111, § 7.

69-3-130. Ditch construction.

    1. Ditch construction, the purpose of which is either to:
      1. Restore swamped-out bottomland hardwoods to bottomland hardwoods; or
      2. Restore swamped-out cropland to cropland or to bottomland hardwoods;

        is permitted in any waters of this state, under general permit and without requirement of an individual permit; provided, that it is done in accordance with all terms and conditions of this section.

    2. The following conditions apply to all ditch construction conducted under this section:
      1. Written notification to the department shall be made at least thirty (30) days prior to beginning construction, and shall include:
        1. Aerial photographs showing existing conditions, or in the case of land used for pasture, documentation from a state or federal agency establishing prior usage as pasture;
        2. A simple sketch showing approximate dimensions of the proposed ditch and anticipated affected area; and
        3. Documentation that the area is either swamped-out hardwoods or swamped-out cropland;
      2. All construction shall be accomplished during periods of dry weather;
      3. Construction shall be by blasting, if feasible, although construction by other means is permissible if blasting is not practicable under the circumstances; and
      4. Construction may commence after thirty (30) days notification to the department unless the commissioner notifies the applicant that:
        1. The documentation regarding the qualification of the property as swamped-out bottomland hardwoods or swamped-out cropland is inadequate;
        2. The proposed ditch will drain adjacent wetlands beyond the swamped-out cropland or swamped-out bottomland; or
        3. The department's review of the proposal will require an additional time period not to exceed sixty (60) days.
    1. As used in this subsection (b), “ditch maintenance” means the physical maintenance of the original, as built, configuration of a ditch, including the removal of sediment, debris or obstruction, the purpose of which is to:
      1. Maintain bottomland hardwoods or cropland;
      2. Restore swamped-out bottomland hardwoods to bottomland hardwoods; or
      3. Restore swamped-out croplands to cropland or to bottomland hardwoods.
    2. Ditch maintenance is permitted under general permit and without requirement of an individual permit in any water of the state under the following conditions:
      1. All construction shall be accomplished during periods of dry weather;
      2. The ditch maintenance activity shall not alter any other waters of the state; and
      3. The ditch maintenance activity shall not result in the extension of the ditch in length, width or depth from its original dimensions.
  1. Ditch construction that is for the purpose of maintaining existing bottomland hardwoods or cropland, and that requires a permit under § 404 of the federal Clean Water Act (33 U.S.C. § 1344), is permitted under general permit and without requirement of individual permit in any water of the state under the following conditions:
    1. Written notification to the department shall be made at least thirty (30) days prior to beginning construction, and shall include:
      1. A copy of the § 404 permit; and
      2. A simple sketch showing approximate dimensions of the proposed ditch and anticipated affected area;
    2. All construction shall be accomplished during periods of dry weather;
    3. Construction should be by blasting, if feasible, although construction by other means is permissible if blasting is not practicable under the circumstances; and
    4. Construction may commence after thirty (30) days notification to the department unless the commissioner notifies the applicant that:
      1. The documentation is inadequate;
      2. The proposed ditch will drain adjacent wetlands beyond the affected cropland or bottomland; or
      3. The department's review of the proposed construction will require an additional time period not to exceed sixty (60) days.
  2. If ditch construction or ditch maintenance exceeds the permit specifications, then the owner of the property upon which the ditch is constructed shall be required to restore the ditch to the specifications of the permit. The owner of the property upon which the ditch is constructed shall be required to pay all costs of ditch restoration.
  3. The general permits granted by this section shall not be subject to the durational limit set forth in § 69-3-108.
  4. The establishment of the general permit granted by this section shall not preclude application for individual permit for ditch construction or ditch maintenance in cropland or bottomland hardwoods swamped-out prior to 1970.
  5. This section shall not be construed as requiring a permit for any activity not requiring a permit under the federal Clean Water Act or the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.).

Acts 1991, ch. 123, § 2.

69-3-131. Rules and regulations.

The board shall promulgate rules and regulations pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, which rules and regulations shall govern the manner in which emergency repairs made in accordance with § 69-3-108(n) must be made. The department shall send a copy of such rules and regulations to each county highway department in the state.

Acts 1993, ch. 155, § 2.

69-3-132. Advisory committee to assist removal of debris from streams and stabilization of stream banks.

There is hereby created an advisory committee to the division of water pollution control to advise and assist the division on procedures and policies concerning the application of this part to the removal of debris from streams and stabilization of stream banks. The members of the committee shall serve without compensation and shall be appointed by the commissioner to include representatives from local government, farmers, the natural resource conservation service, the University of Tennessee extension, and environmental groups. Meetings of this committee shall be held in counties with a large number of situations where these activities are needed.

Acts 1998, ch. 659, § 3; 2004, ch. 517, § 14.

Compiler's Notes. Acts 2004, ch. 517, § 15 provided that the University of Tennessee extension service shall spend no funds beyond those currently budgeted to accelerate the replacement of signs, letterhead, and business cards on account of the provisions of the act.

69-3-133. Stop work order.

When certain silvicultural activities have polluted waters of the state as a result of an operator's failure or refusal to use forestry best management practices, the commissioner of environment and conservation may issue a stop work order to the operator. If the owner is different than the operator, the commissioner shall at the same time notify the owner that a stop work order has been issued to the operator by delivering a copy of the stop work order to the owner. The stop work order requires that the operator must cease part or all of the silvicultural activities on site that are contributing to such pollution. The stop work order will remain in effect until the operator installs forestry best management practices that eliminate and prevent further pollution associated with the silvicultural activities. No stop work order may be issued or suspended without consultation with the commissioner of agriculture.

Acts 2000, ch. 680, § 2.

69-3-134. Written notice of conduct violation.

No operator who at any time within the previous two (2) years has been found to have violated this part in the conduct of silvicultural activities, such finding of violation not having been overturned or reversed on appeal, shall start any silvicultural activities, unless the operator, at least ten (10) days prior to the start of any silvicultural activities has filed a written notification, with the commissioner of agriculture and the commissioner of environment and conservation, including the following information:

  1. The name and address of the operator and, if different than the owner, the name and address of the owner;
  2. The location of the silvicultural activities and estimated acreage; and
  3. The anticipated beginning date and anticipated length of the silvicultural activities.

Acts 2000, ch. 680, § 3.

69-3-135. Request for hearing. [Current version. See second version of section and its Compiler’s Notes.]

A written request for a hearing before the board of water quality, oil and gas on the stop work order must be filed by the operator with the commissioner of environment and conservation within thirty (30) days of receipt of notice. If a hearing is requested, the operator shall also be afforded the opportunity to meet with the commissioner of environment and conservation or, at the commissioner's option, the deputy or assistant commissioner, within three (3) working days after the hearing request is filed to discuss the alleged violation and show cause why a stop work order should not have been issued. Any modification or revocation of the stop work order shall be in writing. If the commissioner or such designee upholds the stop work order, it shall remain in effect until resolution of the appeal or the operator comes into compliance. If no request for hearing is made within thirty (30) days of the receipt of notice, the stop work order becomes final and not subject to review.

Acts 2000, ch. 680, § 4.

Compiler's Notes. Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

69-3-135. Request for hearing. [Contingent amendment. See first version of section and Compiler’s Notes.]

A written request for a hearing before the board on the stop work order must be filed by the operator with the commissioner of environment and conservation within thirty (30) days of receipt of notice. If a hearing is requested, the operator shall also be afforded the opportunity to meet with the commissioner of environment and conservation or, at the commissioner's option, the deputy or assistant commissioner, within three (3) working days after the hearing request is filed to discuss the alleged violation and show cause why a stop work order should not have been issued. Any modification or revocation of the stop work order shall be in writing. If the commissioner or such designee upholds the stop work order, it shall remain in effect until resolution of the appeal or the operator comes into compliance. If no request for hearing is made within thirty (30) days of the receipt of notice, the stop work order becomes final and not subject to review.

Acts 2000, ch. 680, § 4; 2018, ch. 839, § 31.

Compiler's Notes. Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment deleted “of water quality, oil and gas” following “before the board” near the beginning of the first sentence.

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

69-3-136. Failure to give notice — Failure to comply with stop work order.

Failure of an operator to give the notice required by § 69-3-134 or to comply with a stop work order issued pursuant to §§ 69-3-133 and 69-3-135 shall subject the operator to the penalties in § 69-3-115(a)(1)(E).

Acts 2000, ch. 680, § 5.

69-3-137. Pollution notification form.

  1. The department of environment and conservation and the department of agriculture shall devise a form to be used to notify the departments of a situation in which a person alleges that pollution has resulted or will result from a forestry operation that may have violated the Water Quality Control Act, compiled in this chapter.
  2. This form, together with instructions and information concerning the preferred method and locations for filing such notices, shall be prominently displayed and maintained in a downloadable form on the internet websites maintained by each department. The form and instructions shall be simple and informative and shall avoid the use of technical terms. Any toll-free number available to accept public inquiries or complaints concerning pollution from silvicultural activity shall also be displayed.
  3. The departments shall continue to accept notifications and requests for investigation of silvicultural activities by telephone, in writing, and when feasible by electronic mail. Nothing in this section shall be construed to require that any notice or requests for investigation of a silvicultural activity must be on the form that is prepared pursuant to this section or that any notice to a department or any complaint must meet any technical requirement.

Acts 2000, ch. 849, § 1.

69-3-138. Timber harvesting. [See contingent amendment to subdivision (a)(2) and the Compiler’s Notes.]

    1. Whenever a person contracts in writing with a master logger to conduct any type of timber harvesting on the person's property, the master logger shall assume sole liability for compliance with this chapter for a period of one (1) year after the timber harvest is completed; provided, that the master logger gives written certification to the person that the master logger has designed a plan of best management practices (BMPs) to ensure compliance with all applicable water pollution control laws and that the master logger will install, maintain and adhere to established BMPs to ensure erosion and sediment controls to protect waters of the state in all harvesting activities on the property.

      [Current version. See second version for contingent amendment and Compiler’s Notes.]

    2. The master logger shall not be responsible for the negligent or intentional acts of the landowner or any third party when such actions are the cause of a water quality violation. Actions and appeals resulting from a violation issued by the department shall be heard by the board of water quality, oil and gas established in § 69-3-104, in accordance with the procedures established by the board and in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

      [Contingent amendment. See the Compiler’s Notes.]

  1. As used in this section, “master logger” means a person who is identified by the division of forestry of the department of agriculture as having completed all requirements of the Tennessee master logger program or a master logger program of substantially equal rigor provided in another state, including, but not limited to, maintaining all current continuing education requirements.

The master logger shall not be responsible for the negligent or intentional acts of the landowner or any third party when such actions are the cause of a water quality violation. Actions and appeals resulting from a violation issued by the department shall be heard by the board, in accordance with the procedures established by the board and in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 2005, ch. 268, § 1; 2018, ch. 839, § 32.

Compiler's Notes. Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment deleted “of water quality, oil and gas established in § 69-3-104” preceding “in accordance with” in (a)(2).

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

69-3-139. Stop work orders for coal surface mining operations. [See contingent amendment to subsection (c) and the Compiler’s Notes.]

  1. The commissioner is authorized to issue stop work orders for coal surface mining operations in accordance with subsections (b) and (c).
  2. When certain coal surface mining activities have polluted waters of the state as a result of an operator's failure or refusal to comply with permit conditions, the commissioner may issue a stop work order to the operator. The stop work order shall specify those parts of the coal surface mining activities on site that are contributing to the pollution that must stop. The stop work order shall remain in effect until the department determines that the operator has installed or repaired all necessary measures to comply with the permit so that further pollution associated with the surface mining activities will not occur.

    [Current version. See second version for contingent amendment and Compiler’s Notes.]

  3. A written request for a hearing before the board of water quality, gas, and oil on the stop work order must be filed by the operator to the commissioner within thirty (30) days of receipt of notice. If the operator files that request and also makes a specific request for an informal meeting with the commissioner to show cause why the stop work order should not have been issued, then the commissioner or, at the commissioner's option, the deputy or assistant commissioner, shall meet with the operator within three (3) working days after the hearing request is filed. Any modification or revocation of the stop work order shall be in writing. If the commissioner or the commissioner's designee upholds the stop work order, it shall remain in effect until resolution of the appeal or until the operator comes into compliance. If no request for hearing is made within thirty (30) days of the receipt of notice, the stop work order becomes final and not subject to review.

    [Contingent amendment. See the Compiler’s Notes.]

  4. Failure of an operator to comply with a stop work order issued pursuant to this section shall subject the operator to the penalties in § 69-3-115.

A written request for a hearing before the board on the stop work order must be filed by the operator to the commissioner within thirty (30) days of receipt of notice. If the operator files that request and also makes a specific request for an informal meeting with the commissioner to show cause why the stop work order should not have been issued, then the commissioner or, at the commissioner's option, the deputy or assistant commissioner, shall meet with the operator within three (3) working days after the hearing request is filed. Any modification or revocation of the stop work order shall be in writing. If the commissioner or the commissioner's designee upholds the stop work order, it shall remain in effect until resolution of the appeal or until the operator comes into compliance. If no request for hearing is made within thirty (30) days of the receipt of notice, the stop work order becomes final and not subject to review.

Acts 2006, ch. 594, § 1; 2018, ch. 839, § 33.

Compiler's Notes. Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil, and gas” for “board of water quality control”.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment deleted “of water quality, gas, and oil” preceding “on the stop work order” near the beginning of (c) in the first sentence.

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

69-3-140. Collection of water samples — Report.

    1. In collecting water samples drawn to test the water quality of the Pigeon River at the time the river enters Tennessee from Haywood County, North Carolina, the department shall draw samples from the river within one quarter (¼) mile of the border separating Tennessee and North Carolina in the center of the river. The samples shall be drawn at a time when any power plant that emits discharges into the Pigeon River and that is located within one (1) mile of the state border is running at least one (1) generator. The samples shall be drawn in addition to collecting samples at any other location the department deems appropriate to test the water quality of the river.
    2. The results of water samples drawn pursuant to subdivision (a)(1) shall be reported independently of any other water samples drawn to test the quality of the Pigeon River and shall be incorporated by the department in any analysis of the river's water quality. The samples shall at a minimum be analyzed for apparent and true color in accordance with United States environmental protection agency methods and evaluated against Tennessee water quality standards approved by the United States environmental protection agency.
  1. The department is authorized to obtain a generation schedule from the power plant in order to facilitate timing the drawing of samples and may contract with local rafting entities for transportation services related to the taking of samples pursuant to subsection (a).

Acts 2008, ch. 767, § 1.

69-3-141. Bill of rights for permit applicants.

  1. The general assembly finds and adopts as a matter of public policy, the following statements:
    1. The permitting process under this chapter should be a predictable, ordinary process for the benefit of the commissioner and permit applicants alike;
    2. As with all governmental regulatory activity, the permitting process under this chapter should be susceptible to easy public review and scrutiny;
    3. The permitting process under this chapter should afford applicants basic due process, including notice of application defects, timely review of applications, and prompt and meaningful administrative and judicial review of permitting decisions;
    4. The permitting process under this chapter should reflect an appropriate balance between enforcement of the state's environmental laws and the rights of persons seeking to comply voluntarily with those same laws, in order to safeguard our state's environment and develop our state's economy; and
    5. To further these goals, to protect the rights of applicants, and to promote efficient, effective resolution of permit applications by the commissioner, the general assembly enacts this bill of rights for permit applicants under this chapter.
  2. The commissioner shall afford each applicant for a permit under this chapter the following rights under this bill of rights for permit applicants:
    1. Permit applicants shall have the right to assistance from the department in understanding regulatory and permit requirements;
    2. Permit applicants shall have the right to know the projected fees for review of applications, and how any costs will be determined and billed;
    3. Permit applicants shall have the right to access, on the department's website, complete and clearly written guidance documents, office of general counsel opinions, and department policies that explain the department's regulatory jurisdiction and requirements. The commissioner shall publish, on the department's website, a list of all information required in a permit application and the criteria used to determine whether the submitted information is adequate;
    4. Permit applicants shall have the right to timely completeness determinations for their applications. Permit applicants shall have the right to know exactly how their applications are incomplete and what further information is needed to make their applications complete. Absent extraordinary circumstances, the commissioner shall notify the applicant within thirty (30) days of any permit application deficiencies, or determine that the application is complete;
    5. Permit applicants shall have the right to a timely decision on their permit application. The following time limits shall apply:
      1. Aquatic resource alteration permits (ARAPs) shall be issued or denied within ninety (90) days of the date the department determines an application is complete. If a public hearing is scheduled in response to a request from interested parties, an additional ninety (90) days shall be added to the allowable time limit. The ninety-day time limit may be extended by written mutual agreement between the commissioner and the permit applicant;
      2. Applications for the reissuance of national pollutant discharge elimination system (NPDES) permits shall be issued or denied within one hundred eighty (180) days of the date the department determines an application is complete. If a public hearing is scheduled, in response to comments by interested parties, additional time is requested by the applicant, or additional time is requested by the EPA, an additional ninety (90) days shall be added to the allowable time limit;
      3. Applications for new or modified NPDES permits shall be issued or denied within three hundred sixty-five (365) days of the date the department determines an application is complete. If a public hearing is scheduled, in response to comments by interested parties or additional time is requested by the EPA, an additional ninety (90) days shall be added to the allowable time limit. No other extension shall be granted, except by written mutual agreement between the commissioner and the permit applicant;
    6. Permit applicants shall have the right to appeal to the board any permit review time limits that have been violated without good cause. Through this appeal, applicants may obtain a set date for a decision on their permit and, where the board finds good cause, appropriate relief, including, but not limited to, a refund of all application fees; and
    7. Permit applicants shall have the right to know who will be reviewing their application and the time required to complete the full review process.

Acts 2008, ch. 854, § 1.

69-3-142. Annual reports by commissioner.

  1. The commissioner shall submit by January 31 of each year to the chair of the energy, agriculture and natural resources committee of the senate and the chair of the agriculture and natural resources committee of the house of representatives the following information:
    1. The number of enforcement orders, including directors' orders and commissioner's orders, issued pursuant to § 69-3-109(a)(1) and (2) during the prior year, listed by the county in which the violation occurred;
    2. The number of orders that become final pursuant to § 69-3-109(a)(3) during the prior year, including the average civil penalties and damages assessed by the department from these orders;
    3. The number of final orders and consent orders by the board that become final pursuant to § 69-3-110(c), including the average civil penalties and damages assessed by the department from these decisions during the prior year; and
    4. The number of complaints filed in any chancery court of this state appealing a decision by the board, pursuant to § 69-3-111, and any judicial proceedings initiated by the commissioner and the attorney general and reporter, pursuant to § 69-3-117, during the prior year.
  2. The commissioner shall submit by January 31 of each year to the chair of the energy, agriculture and natural resources committee of the senate and the chair of the agriculture and natural resources committee of the house of representatives the following information:
    1. The number of individual permit applications made during the prior year, listed by county in which the activity sought to be permitted was to occur;
    2. The average length of time, in days, between date of individual permit application and the date permit applications are deemed complete by the department during the prior year; and
    3. The average length of time, in days, between date of individual permit application and the date the department grants or denies the permit application during the prior year.
  3. For purposes of this section, “permit application” and “permit applications” shall be defined to include applications for individual permits issued pursuant to § 69-3-108.
  4. The commissioner shall submit by January 31 of each year to the chair of the energy, agriculture and natural resources committee of the senate and the chair of the agriculture and natural resources committee of the house of representatives a brief report on the status of the implementation of a secure web portal for the submittal of online permit applications. This service for electronic submittal of permit applications will comply with the federal guidelines contained in 40 CFR Ch. I, Subch. A, Part 3, Cross-Media Electronic Reporting Rule (CROMERR). This reporting requirement will terminate after a secure online permit application submittal system is implemented.

Acts 2008, ch. 1014, § 1; 2012, ch. 604, § 19; 2013, ch. 236, § 10.

69-3-143. Rock harvesting operations.

Sections 69-3-14369-3-147 shall govern rock harvesting operations as defined in § 69-3-144.

Acts 2011, ch. 341, § 3.

69-3-144. Definitions for §§ 69-3-143 — 69-3-147.

As used in §§ 69-3-14369-3-147, unless the context otherwise requires:

  1. As used for the purposes of rock harvesting under §§ 69-3-143 — 69-3-147 only, “mineral” means dimension stone, flagstone, fieldstone, landscaping stone, drystack stone, fagade and marble, but does not include any other “mineral” as defined in § 59-8-202;
  2. “Operator” means any person engaged in rock harvesting who disturbs or intends to disturb one (1) acre or more of land or removes or intends to remove more than one hundred (100) tons of minerals as defined in subdivision (1). Any operator who has obtained a permit and otherwise complied with this part may subcontract any part or all of the rock harvesting area covered by the permit to the extent that such subcontractors meet all the qualifications and requirements of this part; and
  3. “Rock harvesting” means the removal of minerals, as defined in subdivision (1), by an operator with or without machinery.

Acts 2011, ch. 341, § 3.

69-3-145. Required permit or notice of coverage under a general permit — Construction regarding adjudication of property rights disputes.

  1. No operator shall engage in rock harvesting without having first obtained from the commissioner a permit or notice of coverage under a general permit as required in § 69-3-108 and the regulations promulgated pursuant thereto. At least thirty (30) days prior to engaging in rock harvesting on any land in which the right to engage in rock harvesting has been severed from the ownership of the land surface, the operator shall send the owner of the surface, by certified mail, return receipt required, a copy of the permit or notice of coverage from the department. The operator shall forward copies of all records relating to the certified mailing to the department. All costs associated with the certified mailing and transmission of records to the department shall be borne by the operator.
  2. The granting of a permit shall be subject to payment by the operator of the fee prescribed in title 68, chapter 203, and upon submission to the department of the following information:
    1. Evidence of the operator's legal right to harvest the minerals on the land affected by the permit;
    2. Proof of general liability and, if applicable, workers' compensation insurance coverage. The general liability policy shall be in an amount of no less than one million dollars ($1,000,000). Proof of coverage shall be provided to the department prior to issuance of the permit;
    3. Proof of the registration with the department of revenue of the operator and any subcontractors;
    4. All application forms, maps, calculations and narratives required to satisfy § 69-3-108 and the regulations issued pursuant thereto; and
    5. A reclamation/stabilization plan which addresses backfilling, grading and revegetation of the site. The reclamation plan will be followed as operations proceed with the overburden and waste materials from succeeding cuts being utilized in the reclamation of preceding cuts. The overburden and waste material from the first cut may be utilized for access road construction. The plan shall provide for returning the affected area as close as is reasonable in the circumstances to its preharvesting state, considering the available overburden and other factors.
  3. Nothing in this section shall be construed to authorize the commissioner to adjudicate property rights disputes.

Acts 2011, ch. 341, § 3.

69-3-146. Stop-work orders. [See contingent amendment to subsection (c) and the Compiler’s Notes.]

  1. The commissioner is authorized to issue stop-work orders for rock harvesting operations in accordance with this section.
  2. When rock harvesting activities have polluted waters of the state as a result of an operator's knowing violation of permit conditions, or an operator has failed or refused to obtain permit coverage as required in § 69-3-145, the commissioner may issue a stop-work order to the operator. The stop-work order shall specify those parts of the rock harvesting activities on site that are contributing to the pollution or require ceasing work until permit coverage is obtained. The stop-work order shall remain in effect until the department determines that the operator has obtained permit coverage and/or has taken all necessary measures to comply with the permit so that further pollution associated with the rock harvesting operations will not occur.

    [Current version. See second version for contingent amendment and Compiler’s Notes.]

  3. A written request for a hearing before the board of water quality, oil and gas on the stop-work order shall be filed by the operator with the commissioner within thirty (30) days of the receipt of notice. If the operator files the request and also makes a specific request for an informal meeting with the commissioner to show cause why the stop-work order should not have been issued, the commissioner or the commissioner's designee shall meet with the operator within three (3) working days after the hearing request is filed. Any modification or revocation of the stop-work order shall be in writing. If the commissioner or the commissioner's designee upholds the stop-work order, it shall remain in effect until resolution of the appeal or until the operator comes into compliance. If no request for a hearing is made within thirty (30) days of the receipt of notice, the stop-work order shall be final and shall not be subject to review. In such case, the operator shall stabilize the site within sixty (60) days of the receipt of notice.

    [Contingent amendment. See the Compiler’s Notes.]

  4. Failure of an operator to comply with a stop-work order issued pursuant to this section shall subject the operator to another violation of this part in addition to any other violations the operator has committed that is subject to the penalties prescribed in § 69-3-115. The commissioner may also institute proceedings for the confiscation and forfeiture of equipment used in any rock harvesting operation to which a stop-work order has been issued. Such proceedings may be instituted in the chancery court of Davidson County, or in the chancery court of the county in which all or part of the rock harvesting operation is located.

A written request for a hearing before the board on the stop-work order shall be filed by the operator with the commissioner within thirty (30) days of the receipt of notice. If the operator files the request and also makes a specific request for an informal meeting with the commissioner to show cause why the stop-work order should not have been issued, the commissioner or the commissioner's designee shall meet with the operator within three (3) working days after the hearing request is filed. Any modification or revocation of the stop-work order shall be in writing. If the commissioner or the commissioner's designee upholds the stop-work order, it shall remain in effect until resolution of the appeal or until the operator comes into compliance. If no request for a hearing is made within thirty (30) days of the receipt of notice, the stop-work order shall be final and shall not be subject to review. In such case, the operator shall stabilize the site within sixty (60) days of the receipt of notice.

Acts 2011, ch. 341, § 3; 2018, ch. 839, § 34.

Compiler's Notes. Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment deleted “of water quality, gas, and oil” preceding “on the stop-work order” near the beginning of (c) in the first sentence.

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

69-3-147. Rock harvesting governance.

Except where a specific provision of §§ 69-3-14369-3-147 is applicable, rock harvesting is subject to and shall be governed by this part.

Acts 2011, ch. 341, § 3.

Compiler's Notes. Acts 2011, ch. 341, § 4 provided that notwithstanding any law to the contrary, where an owner of surface and mineral rights to real property enters into a contract for the conveyance of mineral rights in such property resulting in a severance of such interests, the parties to such conveyance shall identify the specific mineral interests to be conveyed to the purchaser of the mineral rights. The purchaser of the mineral interests shall identify such interests purchased by providing a deed reference number in accordance with § 67-5-804(c) for the mineral interest with the property assessor in the county in which the interests are located as prescribed in this section. For the purposes of this section, “specific mineral interests” means only those minerals listed in the deed as contemplated by the parties. All rights to minerals not described in the deed shall remain with the surface owner. The provisions of this section shall apply to all contracts entered into on or after July 1, 2011, and shall not impair the obligation of any existing contract or be construed to direct courts in determining the intent of the parties who entered into a contract prior to such date.

69-3-148. Municipal separate storm sewer systems becoming qualified local programs.

  1. The department may establish a program under which municipal separate storm sewer systems may become qualified local programs allowing for the streamlining of permits for construction activity as provided in this section.
  2. The department may review and approve applications from municipal separate storm sewer systems to become qualified local programs. The requirements for being a qualified local program shall be those required by federal regulation together with a system acceptable to the department for sharing information as to the construction sites authorized by the qualified local program.
  3. The department may incorporate by reference the requirements of a qualified local program for construction activity in its general permit.
  4. An operator of a construction site located within the jurisdiction of a qualified local program under subsection (b) who has obtained a notice of coverage from such program shall be authorized under the department's general permit for storm water associated with construction activity for that site and shall not have to submit any of the following to the department:
    1. Notice of intent to seek coverage under a storm water construction permit;
    2. Storm water pollution prevention plan;
    3. Storm water construction permit fee; or
    4. Notice of termination.

Acts 2012, ch. 1019, § 2.

Part 2
Stream Mapping in Sumner County Watersheds

69-3-201. Stream mapping project established.

The department of environment and conservation is hereby directed to conduct a stream mapping project in the Red River and Barren River watersheds of Sumner County.

Acts 1998, ch. 623, § 1; T.C.A. § 69-3-301.

Compiler's Notes. Former part 2, §§ 69-3-20169-3-211 (Acts 1955, ch. 151, §§ 1-7; T.C.A. §§ 70-1901 — 70-1912; Acts 1984, ch. 794, § 13, concerning Tennessee River Basin water pollution control, was repealed by Acts 1986, ch. 488, § 2.

69-3-202. “Stream mapping” defined.

As used in this part, unless the context otherwise requires, “stream mapping” means the collection and analysis of water samples along streams that normally exhibit water flow at least six (6) consecutive months per year within a given area.

Acts 1998, ch. 623, § 1; T.C.A. § 69-3-302.

69-3-203. Guidelines for collection of samples.

Water samples collected pursuant to this part shall be collected according to each of the following guidelines:

  1. At distances along each of the streams in the Red River and Barren River watersheds in Sumner County of no greater than three (3) miles from the previous sample taken;
  2. At or near the same location for each sampling; and
  3. On a regular, quarterly basis.

Acts 1998, ch. 623, § 1; T.C.A. § 69-3-303.

69-3-204. Analysis of samples.

Samples collected pursuant to this part shall each be analyzed for pH, ammonia, and biological oxygen demand (BOD) in accordance with the guidelines set forth by the environmental protection agency.

Acts 1998, ch. 623, § 1; T.C.A. § 69-3-304.

Part 3
Publication of Water Quality Actions

69-3-301. Director's and commissioner's orders and enforcement actions and outcomes.

All director's and commissioner's orders and all other enforcement actions and outcomes, shall be published weekly in their entirety in one (1) location on the department's website.

Acts 2007, ch. 404, § 2.

69-3-302. Publication of final orders by the board or an administrative judge.

Final orders by the board or an administrative judge shall be published on the department website within five (5) business days, in addition to other publication required by law.

Acts 2007, ch. 404, § 3; 2013, ch. 181, § 18.

Compiler's Notes. Acts 2013, ch. 181, § 19 provided that for the purpose of construing the act in relation to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, the act shall be deemed to be procedural in nature. It is the intent of the general assembly that Acts 2013, chapter 181 and the Uniform Administrative Procedures Act shall be complied with, however when in conflict, the provisions of Acts 2013, chapter 181 shall govern.

Acts 2013, ch. 181, § 20 provided that the act, which amended this section, shall apply to all cases filed on or after July 1, 2013.

69-3-303. Notices of intent to appeal.

Notices of intent to appeal shall be published on the department website within three (3) business days of receipt, but no later than fourteen (14) days prior to the date the appeal or agreed order will be heard by the board, in addition to other publication required by law.

Acts 2007, ch. 404, § 4.

69-3-107. Duties and authority of the commissioner.

Chapter 4
Levees

69-4-101. Bonds for building levees.

The county legislative bodies of the several counties, within the limits of which are lands rendered unfit for occupation and farming purposes by reason of the overflowing of the lands in times of high water in the rivers adjacent to the lands, may issue bonds pursuant to title 9, chapter 21 for the purpose of constructing levees to protect the lands.

Acts 1871, ch. 131, § 1; Shan., § 3855; Code 1932, § 4193; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-601; Acts 1988, ch. 750, § 67; T.C.A. § 69-5-101.

Compiler's Notes. Former chapter 4, §§ 69-4-10169-4-106 (Acts 1858, §§ 2156-2161 (deriv. Acts 1841-1842, ch. 71, § 1); Shan., §§ 3849-3854; Code 1932, §§ 4187-4192; T.C.A. (orig. ed.), §§ 70-501 — 70-506), concerning drains and ditches, was repealed by Acts 1983, ch. 179, § 2.

Law Reviews.

Water Rights in Tennessee (Mahlon L. Townsend), 27 Tenn. L. Rev. 557.

69-4-102. [Reserved.]

The county legislative body of the county issuing the bonds shall appoint not less than three (3) nor more than five (5) persons to superintend the construction of the levee, who shall be denominated “the levee commissioners,” and who shall, before entering upon their duties, take an oath for the faithful discharge of their duties, and enter into bond to account for all sums passing into their hands, in such sum as the county legislative body shall deem sufficient.

Acts 1871, ch. 131, § 7; Shan., § 3860; Code 1932, § 4198; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-606; T.C.A. § 69-5-103.

69-4-104. Engineer — Contracts.

The levee commissioners shall employ a competent engineer to assist them in the location and construction of such levee, and shall have power to let out contracts for the work.

Acts 1871, ch. 131, §§ 8-10; Shan., §§ 3861-3863; Code 1932, §§ 4199-4201; impl. am. Acts 1978, ch. 934, §§ 7, 16, 36; T.C.A. (orig. ed.), §§ 70-607 — 70-609; Acts 1988, ch. 750, § 69; T.C.A. § 69-5-104.

69-4-105. Condemnation of real estate for construction of levee.

  1. The commissioners may take the real estate of any person, not exceeding the amount necessary for the construction and maintenance of the levee, by petition filed in the circuit court of the county in which the land lies, setting forth in substance:
    1. The land wanted;
    2. The name of the owner, or, if unknown, stating that fact; and
    3. With a prayer for the land designated to be decreed to the county.
  2. Notice of the filing of this petition shall be given to the owner of the land, or, if the owner is a nonresident of the county, to the owner's agent, and if a nonresident of the state, notice shall be given in the usual mode by publication in lieu of personal service.
  3. The notice provided for in subsection (b) for shall require the defendants to appear on the first Monday in some specified month, and be served five (5) days before that day, after which time, if no cause to the contrary is shown, the clerk of the court shall issue a writ of inquiry to the sheriff to summon a jury to inquire and assess the damages, and the report of the jury shall be reduced to writing, signed by a majority of the persons, and returned to the next term of the court.
  4. If no objection to the report is made, it may be confirmed by the court, and the land decreed to the county, and the amount of damages so assessed to each party by the jury shall be made a part of the record decreeing the title to the county.
  5. The damages so assessed shall be claimed by the persons interested, by written notice to that effect filed with the clerk of the circuit court, within one (1) year from the confirmation of the report of the jurors, and in case of failure to do so, they shall be forever barred.

Acts 1871, ch. 131, §§ 11-15; Shan., §§ 3864-3868; Code 1932, §§ 4202-4206; T.C.A. (orig. ed.), §§ 70-610—70-614; T.C.A. § 69-5-105.

Cross-References. Eminent domain procedure, title 29, ch. 16.

69-4-106. Certain sections incorporated in chapter.

Sections 29-16-106, 29-16-108, 29-16-109, 29-16-112, 29-16-113, 29-16-117 — 29-16-119, and 29-16-121 shall apply to and be taken and construed as parts of this chapter, insofar as they are applicable to the purposes of this chapter.

Acts 1871, ch. 131, § 16; Shan., § 3869; Code 1932, § 4207; T.C.A. (orig. ed.), § 70-615; T.C.A. § 69-5-106.

69-4-107. Subscriptions.

  1. The commissioners provided for in § 69-4-103 are authorized to accept subscriptions of either money or property for the use of the county appointing them, and they may receive subscriptions, in this manner, of land lying in other counties, and take deeds to the land as trustees of the county.
  2. The subscriptions so received shall be reported to the county legislative body within one (1) year after having been received, and in case of failure they shall each pay the sum of three hundred dollars ($300), to be collected at the suit of the county trustee, for the use of the county.

Acts 1871, ch. 131, §§ 17, 18; Shan., §§ 3870, 3871; Code 1932, §§ 4208, 4209; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), §§ 70-616, 70-617; T.C.A. § 69-5-107.

69-4-108. Counties may retain state's increment of taxes.

  1. Any county that has legally incurred, or may hereafter incur, a bonded indebtedness for the purpose of constructing or aiding in the construction of a levee or levees or drainage to reclaim and improve the low, wet, and overflowed lands within the county or in the state, whereby the taxable values of the property in such county or state have been or may be materially increased, shall be entitled to retain out of the revenue due by such county to the state, such increment of taxes so realized for the state, because of such enhancement of values, as have been or may be traceable to the issuance of such bonds for such purpose, and the works done in pursuance thereof in the construction of such levee or levees or drainage.
  2. The trustee of any such county, in making payments to the proper officers of the state of the revenue collected by the trustee and payable to the state, is allowed, and it is the trustee's duty, to retain such increment of taxes as provided for in subsection (a), and for the purpose of ascertaining and determining the amount that the trustee shall so be entitled to retain, the commissioner of revenue is empowered, and it is made the commissioner's duty, to make all necessary investigations as to the facts; and the commissioner shall then make a settlement with the trustee of such county, whereby the commissioner will ascertain, determine, and fix the exact amount that the trustee shall be allowed to retain, as the increment of such taxes. Such settlement shall be made each year at the time of the final settlement made with the trustee of such county of the accounts with the state for taxes collected by the trustee.
  3. At the time of settlement, the commissioner of revenue shall be required to take from such trustee a written statement signed by the trustee, showing the exact amount so retained by the trustee, and such receipt shall be filed and kept by the commissioner as evidence of the amounts so retained, which otherwise should and would have been paid to the state.
  4. In ascertaining, determining, and fixing the amount of such taxes accruing in favor of the state, the commissioner of revenue shall take and consider, among other facts, the assessed taxable values of property of such county for the year next preceding the issuance of such bonds; and in no event shall the taxes to be paid to the state be less than on an amount of taxable property equal to the amount as assessed in and for such county in the year next preceding the issuance of the bonds.
  5. All such taxes to be left in the hands of the trustee shall be and become the property of such county, shall be and constitute a fund to discharge the bonded indebtedness and interest on the bonds, and shall not be used by such county or its officers for any other purpose; but the county, by and through its proper officers, shall by proper action provide for the appropriation of such moneys to the payment, discharge of the bonds and interest on the bonds, or to the purchase of the bonds.
  6. All the provisions of this section shall remain in force and effect during the term of years for which the bonds are to run before maturity, unless they are paid sooner, but in no event to extend beyond the payment of such bonds, or the date of their maturity.

Acts 1901, ch. 65, §§ 1-6; Shan., §§ 3871a1-3871a6; mod. Code 1932, §§ 4210-4215; impl. am. Acts 1937, ch. 33, §§ 50, 51; impl. am. Acts 1959, ch. 9, § 14; T.C.A. (orig. ed.), §§ 70-618—70-623; T.C.A. § 69-5-108.

69-4-103. Commissioners.

Chapter 5
Drainage and Levee Districts

Part 1
Establishment and General Provisions

69-5-101. County may establish levee and drainage districts and change natural watercourses.

The county court of any county is vested with the jurisdiction and authority at any regular, special, or adjourned session to establish a drainage district or districts, and to locate and establish levees, and cause to be constructed, as provided in this chapter, any levee, ditch, drain, or watercourse, or to straighten, widen, deepen, or change any natural watercourse in such county, or provide for such action being taken whenever it will be of public utility or conducive to the public health or welfare.

Acts 1909, ch. 185, § 1; Shan., § 3871a7; mod. Code 1932, § 4216; T.C.A. (orig. ed.), § 70-701; T.C.A. § 69-6-101.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. Supplementary eminent domain proceedings for certain levee and drainage districts, § 29-17-901.

Tax assessment of tracts partly in district, § 67-5-803.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Drains and Sewers, §§ 4, 5, 7, 8, 12; 17 Tenn. Juris., Levees, § 1; 25 Tenn. Juris., Waters and Watercourses, § 16.

Law Reviews.

Water Rights in Tennessee (Mahlon L. Townsend), 27 Tenn. L. Rev. 557.

NOTES TO DECISIONS

1. Constitutionality.

This statute is not unconstitutional as authorizing the taking of private property for private uses, contrary to the implied prohibition of the constitution, because: (1) There is not a taking of property in the constitutional sense; and (2) The taking is for a county and public purpose. State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911).

2. County's Power.

This statute does not undertake to authorize any interference by the county with the free and public use of navigable waters over which congress has control, and does not attempt to confer authority to change or alter such navigable waters. State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911).

The county's power may be exercised on any day of the month. S. M. Williamson & Co. v. Shelton, 158 Tenn. 166, 11 S.W.2d 882, 1928 Tenn. LEXIS 137 (1928).

The probate court of Shelby County has jurisdiction to determine establishment of drainage district upon filing of a petition, making and filing of engineer's report, and publication of notice. Shelby County v. Anderson, 10 Tenn. App. 437, 1929 Tenn. App. LEXIS 49 (1929).

3. Police Power.

That the drainage statute is a proper exercise of the police power for the health and welfare of the people is everywhere conceded. Nashville, C. & S. L. R. Co. v. Middle Fork Obion Drainage Dist., 149 Tenn. 490, 261 S.W. 975, 1923 Tenn. LEXIS 108 (1924).

69-5-102. Judicial jurisdiction and authority.

The court vested with the judicial jurisdiction and authority in this chapter is the circuit court, unless provided otherwise by public, private, local, or special act of the general assembly.

Acts 1909, ch. 185, § 1; Shan., § 3871a8; Code 1932, § 4217; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-702; Acts 1983, ch. 256, § 1; T.C.A. § 69-6-102.

69-5-103. Petition for establishment of district — Bond for preliminary expenses.

Before any county court establishes a drainage or levee district, or any levee, ditch, drain, or watercourse improvement, as provided for in this chapter, a petition, signed as prescribed in § 69-5-104, shall be filed in the office of the county clerk of the county in which the improvement is expected to be made, setting forth that any body or district of land in such county, described by metes and bounds or otherwise, so as to convey an intelligible description of such lands, is subject to overflow, or too wet for profitable cultivation, and that the public health or welfare will be promoted by draining, ditching, or leveeing it, or by changing a natural watercourse, or by in part changing such watercourse by cutting across its bends and shortening its length, or by cleaning out its natural bed or deepening or enlarging such bed, or by giving such watercourse a new outlet, or any or all of these and similar things pertaining to the proposed improvement, and setting forth in the petition as near as may be the starting point, route, and terminus, and lateral branches, if with proper prayer for purpose desired; and there shall be filed with the petition a bond, with good security, in such penal sum as the clerk may deem adequate, to be approved by the clerk, and conditioned for the payment of all preliminary expenses until refunded, and of all costs and expenses incurred in the proceedings in case the county court does not grant the prayer of the petition, or the petition is dismissed for any cause. The county court may at any time deemed proper order the bond increased in penalty or in sufficiency, and make all necessary orders to this end.

Acts 1909, ch. 185, § 2; Shan., § 3871a9; Code 1932, § 4218; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-703; T.C.A. § 69-6-103.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-104. Qualifications of petitioners.

The petition shall be signed by persons who own a majority of the acreage to be included in the proposed district.

Acts 1923, ch. 20, § 2; 1925, ch. 26, §§ 1, 2; Shan. Supp., § 3871a9; mod. Code 1932, § 4218a; Acts 1953, ch. 23, § 1; T.C.A. (orig. ed.), § 70-704; T.C.A. § 69-6-104.

69-5-105. Compensation of attorneys.

The petitioners for the proposed district are authorized to employ counsel or attorneys to assist in filing the petition and in all preliminary matters necessary in having such district established, and attending to the matters thereof, so far as may be necessary and so far as the county court may think needed after the district is ordered established, contracting with such attorneys for the amount to be paid for their services, which contract shall be approved by the county court, if deemed reasonable; and if not deemed reasonable, the county court shall, by order, fix the amount to be allowed for such legal services, the court fixing such amount as it deems reasonable and proper; and the amount of fees thus fixed shall become a debt and charge against the district as other preliminary expenses are, such as charges for services of an engineer, and be paid in like manner.

Acts 1913 (1st Ex. Sess.), ch. 25, § 13; Shan., § 3871a141; Code 1932, § 4376; T.C.A. (orig. ed.), § 70-705; T.C.A. § 69-6-105.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-106. Petitioners' committee.

The petitioners are authorized to select from their number a committee of three (3) or five (5), as they shall deem expedient, which committee shall act for the petitioners in all such preliminary matters as their services may be needed in having the district established, and which committee shall have the power to bind the petitioners in all preliminary matters looking to the establishment of the district. This committee shall elect out of its members such officers as it deems necessary, and shall keep a record of the committee's proceedings. The members of this committee shall receive for service such compensation as shall be fixed by the county court, which shall be paid out of the funds of the district when established in the same way as is provided for the payments of other just charges against the district.

Acts 1913 (1st Ex. Sess.), ch. 25, § 13; Shan., § 3871a142; Code 1932, § 4377; T.C.A. (orig. ed.), § 70-706; T.C.A. § 69-6-106.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-107. Preliminary hearing — Notice and requisites.

When a petition is filed with all the necessary allegations, is sworn to by one (1) or more petitioners, and shows that fifty-one percent (51%) in acres of the land within the bounds of the district sought to be created is owned by the petitioners, and as further required by § 69-5-103; when the petition is accompanied by a general plat, and a general description of the district sought to be created; when a description, by surrounding landowners, is given in the petition, of the respective tracts of land within the bounds and the names of the owners of the tracts, who are not petitioners are set out in the petition; when the petitioners ask that provision be made for funds to defray the preliminary costs and expenses up to the stage in the proceedings where the report of the commissioners for the assessment of benefits have been filed and confirmed; and when the court deems it expedient that provision should be made for such a fund, to cover the preliminary costs and expenses; then the court shall set a day for the hearing, and direct that publication for all landowners set out in the petition, who are not petitioners, be made in some newspaper published in the county in which the district is located, and if located in more than one (1) county, then in a newspaper in each county, in which the lands in the proposed district are located, the publications to be for three (3) consecutive weeks, the last publication to be at least ten (10) days before the day set for the hearing; and the publication shall notify such landowners of the pending suit, the prayer for the creation of a fund to pay the preliminary costs and expenses, the day fixed for the hearing, and notify them to appear and show cause why an assessment to create the fund should not be made.

Acts 1915, ch. 63, § 1; Shan., § 3871a10; mod. Code 1932, § 4219; T.C.A. (orig. ed.), § 70-707; T.C.A. § 69-6-107.

NOTES TO DECISIONS

1. Publication.

In suit to collect drainage district special assessment, defendant may not attack the organization of the drainage district on ground of want of required publication for property owners who did not join in the petition for the drainage district, without pleading and proof. Obion County ex rel. Free Bridge Drainage Dist. v. Houser, 9 Tenn. App. 646, 1929 Tenn. App. LEXIS 125 (1929).

69-5-108. Preliminary hearing — Procedure and decree.

The landowners shall make their appearance and file their objections, if any, on or before twelve o'clock (12:00) noon of the day set for hearing. After the hour fixed for the filing of objections, the court shall proceed to hear and determine the matter of making an assessment to raise a fund for the payment of the preliminary costs and expenses. The court will determine from proof offered, approximately, the amount necessary to cover the cost and expenses, and if the court is of the opinion that it is not expedient to make an assessment for such purposes, the court will so decree; but if the court is of the opinion that it is expedient, the court will make an assessment for the amount determined, upon the respective tracts of land set out in the petition, and make the assessment on the basis of acreage.

Acts 1915, ch. 63, § 1; Shan., § 3871a11; Code 1932, § 4220; T.C.A. (orig. ed.), § 70-708; T.C.A. § 69-6-108.

NOTES TO DECISIONS

1. Jury Trial.

Property owners are entitled to a jury trial as to advisability, propriety and feasibility of establishing the district and of including certain lands. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

2. Construction of Decree.

Where, in the organization of a drainage district, in addition to assessment for payment of bonds, the decree authorized assessment for “contingent or administration fund” to meet expenses and contingencies that might arise, such decree limited the additional assessment to the purpose of providing a fund for payment of administration and contingent expenses, and not for payment of bonds. State ex rel. First Nat'l Bank v. Dunlap, 167 Tenn. 585, 72 S.W.2d 771, 1934 Tenn. LEXIS 14 (1934).

69-5-109. Appeal from preliminary decree.

Any party aggrieved may appeal from the decision of the court in making or refusing to make the assessment. The appeal shall be made in the same manner and upon the same terms provided for appeals from the action of the court in creating or refusing to create a drainage district as provided in part 5 of this chapter.

Acts 1915, ch. 63, § 1; Shan., § 3871a12; Code 1932, § 4221; T.C.A. (orig. ed.), § 70-709; T.C.A. § 69-6-109.

69-5-110. Assessment book — Collection by county trustee.

When the assessment has been made, the court will fix the dates within which the assessment shall be collected. The county clerk shall make out an assessment list, or book, giving alphabetically the name of the owner, and the boundaries of the land, the number of acres, and the amount assessed against each tract, and the clerk will make the same substantially in the form used for state and county tax books, and when so made the clerk will certify the same to the trustee of the county, and it shall be the duty of the trustee of the county to proceed at once to collect the assessments within the dates prescribed by the court. The trustee will pay the amount collected on the assessments to the county clerk, to be paid out on the cost and expenses under the orders of the court; and for collecting and paying over the assessments, the trustee will be allowed as compensation for collection and paying over the funds, two percent (2%) of the amount collected and paid over.

Acts 1915, ch. 63, § 1; Shan., § 3871a13; Code 1932, § 4222; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-710; T.C.A. § 69-6-110.

Cross-References. Compensation for collecting and paying out assessments and for certified statements, § 69-5-835.

NOTES TO DECISIONS

1. Constitutionality.

A similar statute was held constitutional. State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911).

2. Irregularities.

Irregularities in letting contracts cannot impair the validity of the assessment. S. M. Williamson & Co. v. Shelton, 158 Tenn. 166, 11 S.W.2d 882, 1928 Tenn. LEXIS 137 (1928).

3. Burden of Proof.

In an action to collect assessments where defendant offered no proof, but on appeal sought to show district was not properly organized, the burden was on him to show such invalidity. Obion County ex rel. Free Bridge Drainage Dist. v. Houser, 9 Tenn. App. 646, 1929 Tenn. App. LEXIS 125 (1929).

4. Mode of Payment.

A landowner may, under this section, pay the assessment in full or at his option pay it according to installments fixed by order of the court. Hughes v. Herbert, 159 Tenn. 187, 17 S.W.2d 16, 1928 Tenn. LEXIS 74 (1929).

69-5-111. Collection of assessment by other counties.

If the district sought to be created embraces lands lying in more than one (1) county, the clerk of the county in which the petition was filed and in which the matter is pending will make out the assessment list, or book, for the entire district, and shall then copy so much of the assessment roll, or book, as contains the assessment on lands in any county, other than the county where the petition was filed, and the matter is pending, and certify under seal, that it is a correct copy of that part or portion of such roll, or book, and transmit or deliver it to the trustee of such other county, and take a receipt for it; and it shall be the duty of such trustee to receive and receipt for it, and collect it, and pay over the amount collected to the clerk of the county where the petition was filed, and the matter is pending.

Acts 1915, ch. 63, § 1; Shan., § 3871a14; Code 1932, § 4223; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-711; T.C.A. § 69-6-111.

69-5-112. Assessment constitutes lien.

The assessment so made shall be a lien upon the respective tracts of land upon which it is assessed; and this lien shall be enforced in the same manner as provided for the enforcement of liens in §§ 69-5-81969-5-823.

Acts 1915, ch. 63, § 1; Shan., § 3871a15; Code 1932, § 4224; T.C.A. (orig. ed.), § 70-712; T.C.A. § 69-6-112.

NOTES TO DECISIONS

1. Nature of Lien.

The lien upon the land at the time of its subsequent conveyance falls within the meaning of a covenant against encumbrance. Hughes v. Herbert, 159 Tenn. 187, 17 S.W.2d 16, 1928 Tenn. LEXIS 74 (1929).

69-5-113. Assessments — Bonds of county trustee and county clerk.

The county trustee or trustees, before receiving the assessment roll, or book, and proceeding to the collection of the assessments, and the county clerk, before receiving the funds from the trustee or trustees, shall, respectively, enter into a bond in double the amount that will come into their hands, respectively, payable to the state of Tennessee, and conditioned for the faithful paying over and accounting for the funds arising from the assessment.

Acts 1915, ch. 63, § 1; Shan., § 3871a16; Code 1932, § 4225; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-713; T.C.A. § 69-6-113.

69-5-114. Proceedings for preliminary expense fund not to delay other proceedings — Application of acreage provision.

This proceeding to create a fund for the payment of the cost and expenses shall not interfere with or delay the other proceedings, and the matter, in all other respects, may be proceeded with as provided in this part, and by law; provided, that the above percent acreage provision of § 69-5-107 shall only apply to and be limited to a proceeding under §§ 69-5-10769-5-115(a).

Acts 1915, ch. 63, § 1; Shan., § 3871a17; Code 1932, § 4226; T.C.A. (orig. ed.), § 70-714; T.C.A. § 69-6-114.

69-5-115. Engineer.

  1. After such petition has been so filed and bond taken and approved, the county court shall, at the first session thereafter, regular, special, or adjourned, and may at a later session, appoint a disinterested and competent engineer and have placed in the engineer's hands a copy of the petition.
  2. The engineer shall proceed to examine the lands described in the petition, and any other lands that would be benefited by the improvement, or necessary in carrying out such improvement, and survey and locate such drain or drains, ditch or ditches, levee or levees, improvement or improvements, as may be practicable to carry out the purposes of the petition and that will be of public benefit or utility or conducive to the public health or welfare.
  3. Engineers appointed by the county courts shall be paid for their services at such rates as the courts appointing them may fix, and, if not so fixed, at the rate of five dollars ($5.00) per day while engaged in the work, and, in addition, all actual traveling expenses, an itemized account of such expenses to be kept by them and reported and sworn to.
  4. The engineer shall return and file the proceedings with the county clerk, which return shall set forth the starting point, the route, the terminus, or termini of the ditch or ditches, drain or drains, levee or levees, or other improvements, such as the straightening or shortening of watercourses, cleaning out the beds thereof, together with a plat and profile showing the ditches, drains, or other improvements, and the course and length of the same, approximately, through each tract of land as far as may be practicable, and the total length and the course and the elevation, as near as may be, of all lakes, ponds, and deep depressions in the district, and the fall obtainable across the district, and the boundary of the proposed district, and the description of each tract of land in the district, as shown by the tax books, and the names of the owners of the tract, as shown by the tax books, together with the probable cost of the improvement, and such other facts and recommendations as the engineer may deem material.
  5. The court may at any time recall the appointment of any engineer, if deemed advisable to do so, and appoint another to act in the engineer's place.

Acts 1909, ch. 185, §§ 3, 36; Shan., §§ 3871a18-3871a21, 3871a137; Code 1932, §§ 4227-4230, 4372; T.C.A. (orig. ed.), §§ 70-715 — 70-719; T.C.A. § 69-6-115.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-116. Location of drains and ditches.

The ditches and drains provided for shall be surveyed and located along the general course of the natural streams and watercourses, or in the general course of the natural drainage of the lands of the district, unless there is some special and good reason why the natural course should be departed from to secure a new and better outlet, having due regard to the straightening and shortening of such natural streams, watercourses, and course of natural drainage.

Acts 1909, ch. 185, § 3; Shan., § 3871a22; Code 1932, § 4231; T.C.A. (orig. ed.), § 70-720; T.C.A. § 69-6-116.

NOTES TO DECISIONS

1. Discretion in Locating Drains.

This statute clearly invests the drainage authorities with so much discretion about departing from the natural waterway that a landowner who was paid for his damages could have little standing to oppose such departure. Nashville, C. & S. L. R. Co. v. Middle Fork Obion Drainage Dist., 149 Tenn. 490, 261 S.W. 975, 1923 Tenn. LEXIS 108 (1924).

69-5-117. Drains and ditches crossing railroad property.

When such ditch or drain crosses any railroad track or right-of-way, it shall be located at the place of the natural waterway across the right-of-way, unless the railroad company has provided another place in the construction of its roadbed for flow of the water, or unless another place for so crossing its right-of-way is agreed upon by the railroad company; and if located at the place provided by or agreed upon by the railroad company, such company shall be estopped from afterwards objecting to such location on the ground that it is not the place of the natural waterway.

Acts 1909, ch. 185, § 3; Shan., § 3871a23; Code 1932, § 4242; T.C.A. (orig. ed.), § 70-721; T.C.A. § 69-6-117.

NOTES TO DECISIONS

1. Railroad Bridge over Public Road.

The state may directly, or through municipal agency, compel a railroad company to maintain a bridge already erected over a public road, remodel it, or build a new one, if the public safety, welfare, or necessity requires such exercise of the police power. Nashville, C. & S. L. R. Co. v. Middle Fork Obion Drainage Dist., 149 Tenn. 490, 261 S.W. 975, 1923 Tenn. LEXIS 108 (1924).

2. Burden of Reconstructing Bridge.

Where a railroad bridge across a watercourse interferes with the alteration of the channel of a river necessary to a drainage project, a railroad company must bear the burden of such reasonable and necessary reconstruction of the bridge as will permit the exercise of superior public right. Nashville, C. & S. L. R. Co. v. Middle Fork Obion Drainage Dist., 149 Tenn. 490, 261 S.W. 975, 1923 Tenn. LEXIS 108 (1924).

3. Departure from Natural Waterway.

This statute implies permission for railroad company to contest the departure of the drain from the natural waterway across its right-of-way, unless the railroad company had provided another place for the flow of water, or unless another place for crossing its right-of-way had been agreed upon by the company. Nashville, C. & S. L. R. Co. v. Middle Fork Obion Drainage Dist., 149 Tenn. 490, 261 S.W. 975, 1923 Tenn. LEXIS 108 (1924).

4. Measure of Damages.

Where a drainage canal across a railroad right-of-way did not deprive the railroad company of the beneficial use of its easement or property, the railroad company's measure of damages was not the value of the land within the overlap, but the diminished value for railroad purposes of the land taken caused by its use for drainage purposes. Nashville, C. & S. L. R. Co. v. Middle Fork Obion Drainage Dist., 149 Tenn. 490, 261 S.W. 975, 1923 Tenn. LEXIS 108 (1924).

69-5-118. Engineer's assistants.

The engineer may employ necessary help, such as axmen, rodmen, returning an itemized expense account, or the court may contract with such engineer to furnish all such help, and to do the entire work, or any specific part thereof, for a sum stipulated and agreed upon.

Acts 1909, ch. 185, § 3; 1913 (1st Ex. Sess.), ch. 25, § 1; Shan., § 3871a24; mod. Code 1932, § 4233; T.C.A. (orig. ed.), § 70-722; T.C.A. § 69-6-118.

69-5-119. Plan approval or rejection.

Upon the filing of the return of the engineer, the county court shall examine the return, and if the plan seems to be expedient and meets the approval of the court, it shall order the county clerk to cause notice to be given, as provided in this part, but if it does not appear to be expedient, or is not approved, the court is authorized to direct the engineer, or another engineer selected by it, to prepare another plan. If the court should deem the proposed improvement inexpedient or inadvisable, after an examination of the return of the engineer, or after a second or further return, it may dismiss the petition and proceedings, and, in that event, it shall adjudge all costs and expenses incurred against the petitioners and the sureties on the bond.

Acts 1909, ch. 185, § 4; Shan., § 3871a25; mod. Code 1932, § 4234; T.C.A. (orig. ed.), § 70-723; T.C.A. § 69-6-119.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-120. Issuance and service of summons upon approval of plan.

  1. When the plan, if any, has the approval of the court, the court shall order the county clerk to issue a summons, or writ, to the sheriff of the proper county, the writs to run in the name of the state, commanding the sheriff to summon the persons named in the writ to appear before the court on the day set by it for the hearing of the petition. The writ or summons shall name to be served the owners of all the tracts or lots of land not petitioners, within the proposed levee, improvement, or drainage district, as shown by the tax books of the county, or by affidavit filed, and upon the persons in actual occupancy of the lands or lots, and also upon any lienholder or encumbrancers of any land in the proposed district, as shown by the county records, and shall notify them of the pendency of the petition and the prayer of the petition; but no copy of the petition shall accompany the writ.
  2. Such writ shall be served at least ten (10) days before the time set for the hearing of the petition; but the writ shall not be issued for or served upon any of the persons described in subsection (a), who shall file with the clerk a statement in writing, signed by the party entering an appearance at the hearing and waiving any additional notice, or the service of the writ may be acknowledged.
  3. In case any such owner, lienholder, or encumbrancer is a nonresident of the state, or that person's name or residence cannot be ascertained after diligent inquiry, and these facts are made to appear by affidavit filed, then publication shall be made for such party for two (2) consecutive weeks in some newspaper of the county where the proceeding is pending notifying such party or parties of the pendency and prayer of the petition, and to appear at the time set for the hearing of the petition, the last publication to be at least ten (10) days before the time set for such hearing. Proof of such publication may be made as provided by law in chancery cases. The actual owners, or such encumbrancers, may be made to appear to the clerk by the affidavit of any person acquainted with the facts or by the averments of the petition if sworn to.
  4. Such writ, or summons, and the publication notice need not set out in any detail the contents of the petition, or of its prayer.

Acts 1909, ch. 185, § 4; 1913 (1st Ex. Sess.), ch. 25, § 2; Shan., §§ 3871a26-3871a29; Code 1932, §§ 4235-4238; T.C.A. (orig. ed.), §§ 70-724 — 70-727; T.C.A. § 69-6-120.

69-5-121. Hearing postponed pending notice — Hearing without formal answers.

If, at the time set for the hearing, it appears to the court that any person entitled to notice as provided has not had such notice, the hearing shall be adjourned until such person can be given the required notice, and the court shall not lose jurisdiction of the subject matter or of the person already properly notified by such adjournment or postponement. The persons concerned may appear and be heard without formally answering such petition in writing.

Acts 1909, ch. 185, § 4; Shan., § 3871a30; Code 1932, § 4239; T.C.A. (orig. ed.), § 70-728; T.C.A. § 69-6-121.

69-5-122. Further examination and report by engineer.

At such hearing, the court may order the engineer, or a new engineer appointed by the court, if deemed advisable, to make further examination and report to the court as to the improvement, in which event the hearing shall be continued until the filing of such further report.

Acts 1909, ch. 185, § 6; Shan., § 3871a33; Code 1932, § 4250; T.C.A. (orig. ed.), § 70-729; T.C.A. § 69-6-122.

69-5-123. Special assessment to pay preliminary costs and expenses.

After the report of the engineer has been filed, accompanied by the plat and a description of the land included within the proposed district, and a description of the surrounding landowners, of the respective tracts of land within the proposed district, and the names of the owners of the tracts, the court shall have the power, if it deems it expedient, to make a special assessment upon all the lands within the proposed district for an amount sufficient to pay the costs and expenses already incurred to the date of filing of the engineer's report, including the expenses in collecting the special assessment.

Acts 1923, ch. 55, § 1; Shan. Supp., § 3871a30b1; Code 1932, § 4240; T.C.A. (orig. ed.), § 70-730; T.C.A. § 69-6-123.

69-5-124. Special assessment — Petition — Notice of hearing.

A special assessment shall be made only upon petition signed and sworn to by one (1) or more persons owning land within the proposed district, and praying that provision be made for funds to defray the preliminary costs and expenses already incurred up to that stage of the proceedings. Upon the filing of such petition, the court shall set a day for the hearing of that matter and direct that publication for all landowners within the proposed district who are not petitioners in the petition be made in some newspaper published in the county in which the district is located, and if located in more than one (1) county, then in a publication in each county in which the land in the proposed district is located, the publication to be made for three (3) consecutive weeks, the last publication to be at least ten (10) days before the day set for the hearing. The publication shall notify such landowners of the pending suit and the prayer of the petition for the creation and collection of a fund to pay the preliminary costs and expenses and the day fixed for the hearing, and notify the landowners not petitioners in the petition to appear and show cause why an assessment to create the fund should not be made. The landowners shall make their appearance and file their objections, if any, on or before twelve o'clock (12:00) noon of the day set for hearing.

Acts 1923, ch. 55, § 1; Shan. Supp., § 3871a30b2; Code 1932, § 4241; T.C.A. (orig. ed.), § 70-731; T.C.A. § 69-6-124.

69-5-125. Special assessment — Hearing — Amount and basis of assessment.

After the hour fixed for the filing of objections, the court shall proceed to hear and determine the matter of making an assessment to raise a fund for the payment of the preliminary costs and expenses. The court will determine from proof offered the amount necessary to cover the cost and expenses, and if the court is of the opinion that it is not expedient to make an assessment for such purposes, the court will so decree; but if the court is of the opinion that it is expedient, the court will make an assessment for the amount determined upon the respective tracts of land in the proposed improvement district, and make the assessment on the basis of acreage.

Acts 1923, ch. 55, § 1; Shan. Supp., § 3871a30b3; Code 1932, § 4242; T.C.A. (orig. ed.), § 70-732; T.C.A. § 69-6-125.

69-5-126. Special assessment — Appeal.

Any party aggrieved may appeal from the decision of the court in making or refusing to make the assessment. The appeal shall be made in the same manner and upon the same terms provided for appeals from the action of the court in creating or refusing to create a drainage district as provided in part 5 of this chapter.

Acts 1923, ch. 55, § 1; Shan. Supp., § 3871a30b4; Code 1932, § 4243; T.C.A. (orig. ed.), § 70-733; T.C.A. § 69-6-126.

69-5-127. Special assessment — Collection.

When the assessment has been made, the court shall fix the dates within which it shall be collected, and the county clerk shall make out an assessment list or book, giving alphabetically the name of the owner, and the boundaries of the land, the number of acres, and the amount assessed against each tract. The county clerk will make the assessment list or book substantially in the form used for state and county tax books, and when so made shall certify it to the trustee of the county, and it shall be the duty of the trustee of the county to proceed at once to collect the assessments within the dates prescribed by the court. The trustee shall pay the amount collected on the assessment to the county clerk, to be paid out on the cost and expenses under the orders of the court, and for collecting and paying over the assessments, the trustee will be allowed, as compensation for collecting and paying over the funds, two percent (2%) of the amount collected and paid over.

Acts 1923, ch. 55, § 1; Shan. Supp., § 3871a30b5; Code 1932, § 4244; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-734; T.C.A. § 69-6-127.

Cross-References. Compensation of trustee for collecting and paying out assessments, § 69-5-835.

NOTES TO DECISIONS

1. Mode of Payment.

Owner may pay the assessment in full, or, at his option, pay in installments fixed by court order. Hughes v. Herbert, 159 Tenn. 187, 17 S.W.2d 16, 1928 Tenn. LEXIS 74 (1929).

69-5-128. Special assessment — Collection by other counties.

However, if the district sought to be created embraces lands lying in more than one (1) county, the clerk of the county in which the petition was filed, and the matter is pending, will make out the assessment list or book for the entire district, and shall then copy so much of the assessment roll or book, as contains the assessments on lands in any county other than the county where the petition was filed, and the matter is pending, and certify under seal that it is a correct copy of that part or portion of such roll or book, and transmit or deliver it to the trustee of such other county, and take a receipt for the same, and collect the same, and pay over the amount collected to the clerk of the county where the petition was filed and the matter is pending.

Acts 1923, ch. 55, § 1; Shan. Supp., § 3871a30b6; Code 1932, § 4245; T.C.A. (orig. ed.), § 70-735; T.C.A. § 69-6-128.

NOTES TO DECISIONS

1. Sufficiency and Validity of Roll.

Preparation of roll by directors does not invalidate it if the county adopts same. The assessment roll is treated in connection with the order for its preparation and columns ruled as showing dollars and cents, although no dollar mark is entered. Sufficiency of description of lands is discussed. S. M. Williamson & Co. v. Shelton, 158 Tenn. 166, 11 S.W.2d 882, 1928 Tenn. LEXIS 137 (1928).

69-5-129. Special assessment constitutes lien.

The assessment so made shall be a lien upon the respective tracts of land upon which it is assessed, and this lien shall be enforced in the same manner as provided for the enforcement of liens in §§ 69-5-81969-5-823.

Acts 1923, ch. 55, § 1; Shan. Supp., § 3871a30b7; Code 1932, § 4246; T.C.A. (orig. ed.), § 70-736; T.C.A. § 69-6-129.

69-5-130. Special assessments — Bonds of county trustee and county clerk — Procedure not to delay other proceedings.

The county trustee, or trustees, before receiving the assessment roll, or book, and proceeding to the collection of the assessments, and the county clerk, before receiving the funds from the trustee or trustees, shall, respectively, enter into a bond in double the amount that will come into their hands, respectively, payable to the state of Tennessee, and conditioned for the faithful paying over and accounting for the funds arising from the assessment; provided, that this proceeding to create a fund for the payment of the cost and expenses shall not interfere with or delay the other proceedings.

Acts 1923, ch. 55, § 1; Shan. Supp., § 3871a30b8; Code 1932, § 4247; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-737; T.C.A. § 69-6-130.

69-5-131. Payment of preliminary expenses — Methods of refunding.

The preliminary expenses of such district, ditch, drain, or watercourse improvement, not including contracts for construction, may be paid by order of the county legislative body of the county in which the lands lie of such improvement district out of the general county fund, and, if so paid, to be refunded to the county out of assessments collected from the lands of such improvement district when so collected, and if not so repaid, for any reason, then to be adjudged against and collected out of the bond of the petitioners required by § 69-5-103, and thus repaid to the county.

Acts 1909, ch. 185, § 39; Shan., § 3871a149; Code 1932, § 4384; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-738; T.C.A. § 69-6-131.

69-5-132. Preliminary expenses — Contribution by county.

The county legislative body has the right to contribute, out of the general county fund, such amount as it sees fit to be used in the payment of such preliminary expenses, without requiring the same to be paid back or refunded to the county; and where any county has previously, by order of the county legislative body, advanced or paid any of the preliminary expenses, the county legislative body may, if it sees fit, by proper order donate the amount, or any part thereof, and not require the amount so donated or contributed to be paid back or refunded to the county.

Acts 1913 (1st Ex. Sess.), ch. 37, § 1; Shan., § 3871a150; Code 1932, § 4385; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-739; T.C.A. § 69-6-132.

69-5-133. Expense fund may be required, or judgment rendered on bond.

If the county legislative body does not see fit to order such preliminary expenses so paid, and the parties to whom such expenses may be owing are not willing to agree to wait until a fund for their payment can be provided by special assessments upon such district, then the county court by proper order shall require the petitioner or petitioners to pay to the county clerk a fund sufficient to pay such preliminary expenses, and the bond required of petitioners by § 69-5-103 shall be liable for such preliminary expenses, and judgment on the bond may be rendered at any time by the county court to the end such fund for expenses be provided, just as courts render judgments on cost bonds, and one such judgment shall not prevent other judgments on the same bond, so the sum of the judgments does not exceed the penalty of the bond.

Acts 1909, ch. 185, § 39; Shan., § 3871a151; Code 1932, § 4386; impl. am. Acts 1978, ch. 934, §§ 7, 22, 36; T.C.A. (orig. ed.), § 70-740; T.C.A. § 69-6-133.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-134. Expense fund paid from time to time.

Such fund for expenses may be paid in from time to time, under the orders of the court, as may be needed.

Acts 1909, ch. 185, § 39; Shan., § 3871a152; Code 1932, § 4387; T.C.A. (orig. ed.), § 70-741; T.C.A. § 69-6-134.

69-5-135. Payment of expense fund to be refunded out of district funds.

All sums so paid by the petitioners or their sureties on their bonds shall be refunded and repaid to the person or persons so paying them out of the funds of such improvement district when such funds have been realized under this chapter.

Acts 1909, ch. 185, § 39; Shan., § 3871a153; Code 1932, § 4388; T.C.A. (orig. ed.), § 70-742; T.C.A. § 69-6-135.

69-5-136. Establishment or refusal of district.

The county court, upon the hearing of the petition at the time set for hearing, or at the time to which the matter has been adjourned or continued, shall proceed to determine the sufficiency of the petition in form and manner, which petition may be amended at any time, as to form and substance, before final action on the petition. If the court finds that such levee or drainage or improvement district would not be for the public benefit or utility, or conducive to the public health or welfare, it shall dismiss the proceedings; but if the court finds such improvement conducive to the public health or welfare, or to the public benefit or utility, it shall determine and adjudge the necessity for the improvement of such district, and if no claim for damages has been filed, as provided in § 69-5-201, the court may, if deemed advisable, locate and establish the district, or may refuse to establish the same, as the court may deem best.

Acts 1909, ch. 185, § 6; Shan., § 3871a32; Code 1932, § 4249; T.C.A. (orig. ed.), § 70-743; T.C.A. § 69-6-136.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-137. Survey after district established — Estimate of costs — Report of engineer — Replacement of engineer.

After the district is established by the county court, and all damages paid or secured as provided in part 2 of this chapter, if the county court is of opinion that the report of the engineer already made is not sufficiently full or definite to enable the proper letting of contracts for the construction of the improvement, or, for other reasons, is not as full and definite as it should be, the court shall direct the engineer, or another appointed by the court for the purpose, to make a further and more complete survey and estimates of such district and cost of proposed improvements, and report to the court as to the same, giving all necessary and required information, how much of the improvement will be upon each tract of land, as nearly as practicable, giving definite estimates as to cost and character of work, and dividing the work into convenient sections for making contracts, and giving such other particulars as the court may see fit to direct. The report of such engineer shall be made and filed with the county clerk without unreasonable delay. If such engineer fails to act with reasonable promptness, the court may remove the engineer and appoint another in the engineer's stead.

Acts 1909, ch. 185, § 10; Shan., § 3871a51; Code 1932, § 4268; T.C.A. (orig. ed.), § 70-744; T.C.A. § 69-6-137.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-138. Notice of hearing on establishment of district.

  1. Publication in a newspaper published in the county where the petition is filed and proceeding is pending, for two (2) consecutive weeks, of the time and place set for the hearing of the petition to establish such district, shall be sufficient notice to the persons concerned as owners, lienholders, encumbrancers, mortgagees, occupants, or in any way, whether residents or nonresidents of the state, the last publication to be at least ten (10) days before the date set for such hearing. Such notice by publication shall have the same force and effect upon those concerned who are not petitioners, and who are residents of the state, as well as nonresidents, for all purposes of the proceeding, as process would have duly issued from the court and served personally upon them by an officer. Such publication notice need not give the names of the persons thus notified to appear, but need give only a brief statement of the purpose of the hearing, a reference to the petition on file for further information, as to the purpose of the proceeding, before what court the petition is to be heard, and the time and place of the hearing. If the proposed district is to embrace lands in more than one (1) county, if established, such publication shall be made in one (1) newspaper published in each of the counties.
  2. Subsection (a) is not intended to repeal any portion of this chapter, and shall not be so construed, but is intended to furnish an additional method of proceeding to bring the parties concerned before the court in proceedings seeking to establish drainage, or drainage and levee, districts, and to give petitioners the option of whether they will proceed under such other provisions of this chapter or under subsection (a) in giving notice to the parties concerned of such hearing, and in bringing them before the court.

Acts 1915, ch. 62, §§ 1, 2; Shan., §§ 3871a160, 3871a161; Code 1932, §§ 4396, 4397; T.C.A. (orig. ed.), §§ 70-745, 70-746; T.C.A. § 69-6-138.

69-5-139. Petitioners' names may be signed by attorney or agent.

It shall be a sufficient signing, in the sense of this chapter, of the names of petitioners to the petitions provided for in this part, if their names are signed by their attorney at law or by an agent authorized so to do.

Acts 1909, ch. 185, § 35; Shan., § 3871a136; Code 1932, § 4371; T.C.A. (orig. ed.), § 70-747; T.C.A. § 69-6-139.

69-5-140. Drainage record book.

In any county where a district is sought to be established, the county clerk shall provide a book to be known as the “drainage record,” to be paid for by the county, and the clerk shall keep in the drainage record book a full and complete record of all proceedings in each case arising under this chapter, including all orders made by the county court, and certified from the circuit court, and a copy of the original petition shall be enrolled in the drainage record, all bonds required to be given. All orders and judgments of the county court touching any matter of the district may be entered upon the drainage record book, without being entered upon the regular minute book, but it shall be sufficient if such orders or judgments are entered either upon the drainage record or the regular minute book of the court.

Acts 1909, ch. 185, § 15; 1913 (1st Ex. Sess.), ch. 25, § 7; Shan., § 3871a74; Code 1932, § 4302; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-748; T.C.A. § 69-6-140.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-141. Fees of clerk.

The fees of the county clerk in proceedings under this chapter shall be the same as for similar services now allowed by law, and in such case the county court may allow the clerk an additional sum for extra services, or services not covered by existing fee bills, or statutes, to be fixed by the court, and paid as other costs and expenses in the case or proceeding.

Acts 1909, ch. 185, § 16; Shan., § 3871a75; Code 1932, § 4303; T.C.A. (orig. ed.), § 70-749; T.C.A. § 69-6-141.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. County clerk fees, title 8, ch. 21, part 7.

69-5-142. Compensation fixed by county court.

If there are any services required of any person under this chapter, and the rate of pay for those services is not provided for by this chapter, then the county courts shall fix the amount or rate of pay in such cases.

Acts 1909, ch. 185, § 36; Shan., § 3871a143; Code 1932, § 4378; T.C.A. (orig. ed.), § 70-750; T.C.A. § 69-6-142.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-143. Reelfoot Lake and Big Hatchie River excepted.

This chapter is not intended to apply to Reelfoot Lake or Big Hatchie River and the waters of such lake or river, or to authorize their draining, and this chapter shall not be construed in any way to authorize the draining of such lake or river or its bottom lands; provided, that dredge boats may be permitted to excavate as far north as, but no farther than, what is known as “Three Bridges” in the fifth civil district of Obion County and the fourth civil district of Lake County.

Acts 1909, ch. 185, § 40; 1915, ch. 53, § 1; Shan., § 3871a159; Acts 1921, ch. 60, § 1; mod. Code 1932, § 4394; T.C.A. (orig. ed.), § 70-751; T.C.A. § 69-6-143.

NOTES TO DECISIONS

1. Constitutionality.

This statute is not unconstitutional as arbitrary class legislation, because of the exemption of Reelfoot Lake from its operation, because such lake is a navigable water in the ordinary sense, with many public uses, giving the public an interest in its preservation so as to prevent its drainage. There is a sound and natural basis for such classification between it and the swamp lands of the state. State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911).

69-5-144. Authority to cooperate with other agencies.

Any drainage district or districts, in addition to the authority that it now has, shall also be authorized to cooperate and contract with persons, firms, associations, partnerships and private corporations, and with other watershed districts, drainage districts, conservation districts, levee districts, counties, cities, quasi- municipalities, utility districts, and other similar corporations or agencies of this state, and with any such districts or agencies organized for similar purposes in any adjoining state, and with other local, state, and federal agencies, including, but not limited to, the Tennessee department of agriculture, the department of environment and conservation, Tennessee Valley authority, corps of army engineers, the secretary of defense, United States department of agriculture, or any other federal agency; to enter into cooperative contracts and agreements with any such districts, corporations or agencies; and to exercise all the powers and receive all benefits relating to watershed districts prescribed in 83 P.L. 566, 68 Stat. 666, or any other act of congress.

Acts 1959, ch. 258, § 1; impl. am. Acts 1963, ch. 169, §§ 1, 3; T.C.A. (orig. ed.), § 70-752; T.C.A. § 69-6-144.

Compiler's Notes. 83 P.L. 566, 68 Stat. 666, referred to in this section, appears generally as 16 U.S.C. § 1001 et seq.

69-5-145. Abolishment of drainage districts — Separate account for district funds.

  1. Any drainage district created pursuant to this chapter may be abolished by resolution of the county legislative body at any time the district has completed the projects for which such district was created. Any funds of the district necessary to fund the obligations of the district, to maintain such projects or to pay any indebtedness incurred pursuant to this chapter or otherwise shall be placed in a separate account by the county and shall remain in such account until expended to pay such maintenance, obligations or indebtedness. Any other funds remaining in the accounts of the district shall be transferred to the county general fund to be appropriated by the county legislative body.
  2. This section applies to all drainage districts created prior to or after April 22, 1997, pursuant to this chapter or any other public or private act.

Acts 1997, ch. 110, §§ 1, 2; T.C.A. § 69-6-145.

Part 2
Damages

69-5-201. Claims must be filed or waived — Guardian or conservator.

Any person claiming damages as compensation for the construction of a levee, ditch, drain, or watercourse improvement shall file the claim in the office of the county clerk at least three (3) days prior to the day on which the petition has been set for hearing, and on failure to file such claim at the time specified shall be held to have waived such rights; provided, that if such person be an infant and without regular guardian, or an infant or person adjudicated incompetent and such guardian or conservator has not been notified of the proceeding as provided for notice, and the facts are made to appear by affidavit, the court shall appoint a guardian ad litem for such person, who may file such claim for damages, if deemed proper, for the person within the time above allowed or within three (3) days after being so appointed.

Acts 1909, ch. 185, § 5; 1913 (1st Ex. Sess.), ch. 25, § 3; Shan., § 3871a31; mod. Code 1932, § 4248; T.C.A. (orig. ed.), § 70-801; T.C.A. § 69-6-201; Acts 2011, ch. 47, § 93.

Compiler's Notes. Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

Law Reviews.

Water Rights in Tennessee (Mahlon L. Townsend), 27 Tenn. L. Rev. 557.

69-5-202. District not to be established until assessment of damages — Viewers — Duty of engineer.

If any claims for damages have been filed, the court shall not establish the district until viewers have been appointed and have reported, and the court shall proceed to appoint three (3) viewers to assess such damages, who shall be disinterested freeholders of the county, and not related to any party interested in the proposed improvement, nor themselves interested in a like improvement, and the engineer appointed by the county court shall accompany the viewers and furnish such information as may be called for by them concerning the survey of the improvement.

Acts 1909, ch. 185, § 6; Shan., § 3871a34; Code 1932, § 4251; T.C.A. (orig. ed.), § 70-802; T.C.A. § 69-6-202.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. Compensation of viewers, § 69-5-303.

69-5-203. Damages fixed by viewers — Report.

The viewers appointed to assess damages, after being duly sworn to act impartially and faithfully to the best of their ability, shall proceed to view the premises and determine and fix the amount of damages to which each claimant is entitled, and file reports in writing with the county clerk showing the amount of damages to which each claimant would be entitled because of the establishment of the proposed improvement.

Acts 1909, ch. 185, § 7; Shan., § 3871a35; Code 1932, § 4252; T.C.A. (orig. ed.), § 70-803; T.C.A. § 69-6-203.

69-5-204. Report to be promptly filed — Substitute viewers.

The report of the viewers shall be filed as soon as practicable. If any one of them fails or refuses to act, for any reason, or does not proceed to act with promptness, the court may appoint another as a viewer in that viewer's place.

Acts 1909, ch. 185, § 7; Shan., § 3871a36; mod. Code 1932, § 4253; T.C.A. (orig. ed.), § 70-804; T.C.A. § 69-6-204.

69-5-205. Method of estimating damages.

In estimating the damages, the viewers shall give the value of the land proposed to be taken without deduction, but incidental benefits that may result to the owner by reason of the proposed improvement may be taken into consideration in estimating the incidental damages.

Acts 1909, ch. 185, § 7; Shan., § 3871a37; Code 1932, § 4254; T.C.A. (orig. ed.), § 70-805; T.C.A. § 69-6-205.

69-5-206. Damages to be considered before establishing district — Damage awards.

After the filing of the report of the viewers, the court shall consider the amount of damages awarded in deciding whether such levee or drainage district should be established, and if, in its judgment, the probable cost of construction is not a greater burden than should be properly borne by the land benefited by the improvement, and the improvement is conducive to the public health, welfare, benefit, or utility, then the court shall locate and establish such drainage or levee district by proper judgment to be entered of record, and the court shall thereupon proceed to determine the amount of damages sustained by each claimant, and may hear evidence in respect to damages, and may increase or diminish the amount awarded by the viewers, as may seem just and right.

Acts 1909, ch. 185, § 8; Shan., § 3871a38; Code 1932, § 4255; T.C.A. (orig. ed.), § 70-806; T.C.A. § 69-6-206.

69-5-207. Damages to be paid or secured by parties benefited by such district.

After the amount of damages due any claimant or claimants has been finally ascertained and fixed by the county court, the court shall require the amount of all such damages to be paid, in the first instance, by the parties benefited by the levee or drainage district, or be secured, to be paid upon such terms and conditions as the county court may deem just and proper.

Acts 1909, ch. 185, § 9; Shan., § 3871a48; Code 1932, § 4265; T.C.A. (orig. ed.), § 70-807; T.C.A. § 69-6-207.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-208. Entry of condemnation order.

After damages have been paid, or secured as provided in § 69-5-207, the county court shall enter a proper order of condemnation showing all such lands are appropriated and belong to such drainage or levee district for all its necessary purposes.

Acts 1909, ch. 185, § 9; Shan., § 3871a49; Code 1932, § 4266; T.C.A. (orig. ed.), § 70-808; T.C.A. § 69-6-208.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-209. Power of condemnation — Extent of appropriation.

In establishing any such district, all necessary lands may be appropriated as provided in this chapter, and a right-of-way as much as two hundred feet (200') wide may be so appropriated, if deemed necessary, for the situs and location of any ditch or drain, or for the location of a new route or channel for any natural watercourse for the whole way or parts of the way of its course. The natural bed of any watercourse in such district may, insofar as it may be utilized and necessary, be so appropriated to the end that such bed or channel may be cleaned out, deepened, or widened; but the provision in this section as to the width of such right-of-way shall not prevent the county court from ordering appropriated such other lands as may be deemed necessary for the purposes of such improvement district under this chapter.

Acts 1909, ch. 185, § 9; Shan., § 3871a50; Code 1932, § 4267; T.C.A. (orig. ed.), § 70-809; T.C.A. § 69-6-209.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. Method of eminent domain for certain levee and drainage districts, § 29-17-901.

Part 3
Commissioners; Apportionment of Assessments

69-5-301. Commissioners — Appointment — Qualifications.

When the district, or other improvement provided for, has been located and established as provided for in part 1 of this chapter, the county court shall appoint three (3) or five (5) commissioners as may be determined by the county court, one (1) of whom shall be a competent civil engineer, and two (2) of whom shall be freeholders of the county, not living within the levee or drainage district, and not interested in the district, or in a like question, nor related to any party whose land is affected thereby.

Acts 1909, ch. 185, § 11; Shan., § 3871a52; Code 1932, § 4280; Acts 1971, ch. 401, § 1; T.C.A. (orig. ed.), § 70-901; T.C.A. § 69-6-301.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Law Reviews.

Procedure and Evidence — 1961 Tennessee Survey (II) (Edmund M. Morgan, Joel F. Handler), 15 Vand. L. Rev. 921.

69-5-302. Oath — Classification of tracts.

The commissioners shall, as soon as practicable after their appointment, and after being duly sworn to perform their duty faithfully and impartially to the best of their ability, inspect and classify all the lands benefited by the location and construction of such drainage or levee district in a graduated scale of benefits, naming the tract or tracts of each owner and so classifying the same, each tract to be numbered according to the benefit received, as provided in § 69-5-305, by the proposed improvement.

Acts 1909, ch. 185, § 11; Shan., § 3871a53; Code 1932, § 4281; T.C.A. (orig. ed.), § 70-902; T.C.A. § 69-6-302.

69-5-303. Compensation of viewers, commissioners, and helpers.

The viewers and commissioners provided for by parts 1-3 of this chapter shall be paid at the rate of three dollars ($3.00) per day while engaged in the work, and, in addition, all actual expenses, including board paid for, for which itemized accounts shall be reported and sworn to. Other necessary help aiding the engineers, viewers, or commissioners, such as chain carriers, axmen, shall be paid not more than two dollars ($2.00) per day.

Acts 1909, ch. 185, § 36; Shan., § 3871a138; Code 1932, § 4373; T.C.A. (orig. ed.), § 70-903; T.C.A. § 69-6-303.

69-5-304. Apportionment of costs — Report.

The commissioners shall make an equitable apportionment and assessment of the costs, expenses, cost of construction, fees, and damages assessed for the construction of any such improvement, and make a report in writing of the apportionment and assessment to the county court.

Acts 1909, ch. 185, § 11; Shan., § 3871a54; Code 1932, § 4282; T.C.A. (orig. ed.), § 70-904; T.C.A. § 69-6-304.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-305. Scale and classification as basis of assessment.

In making the apportionment and assessment provided for in § 69-5-304, the lands receiving the greatest benefit shall be marked on scale of one hundred (100), and those benefited in a lesser degree shall be marked with such percentage of one hundred (100) as the benefit received bears in proportion to the scale of one hundred (100). This classification, when finally established, shall remain as a basis for all future assessments connected with the objects of the drainage or levee district, unless the county court, for good cause, shall authorize a revision of the classification.

Acts 1909, ch. 185, § 11; Shan., § 3871a55; Code 1932, § 4283; T.C.A. (orig. ed.), § 70-905; T.C.A. § 69-6-305.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

NOTES TO DECISIONS

1. Constitutionality.

The special assessments to be apportioned and levied upon each piece of land within the drainage district, not according to its value, but according to the benefits accruing thereto by reason of such improvements, are not taxes within the meaning of Tenn. Const., art. II, § 29 requiring all property to be taxed according to value, and this statute is not unconstitutional upon this ground. State ex rel. Bigham v. Powers, 124 Tenn. 553, 137 S.W. 1110, 1911 Tenn. LEXIS 64 (1911).

The making of an additional assessment in the same ratio as the original assessment, without notice, does not violate the due process clause of the federal Constitution (U.S. Const., amends. 5, 14). Brite v. Grubbs, 144 Tenn. 647, 234 S.W. 759, 1921 Tenn. LEXIS 61 (1921).

2. Drainage District.

A provision in the original decree establishing a drainage district limiting the assessments to ten dollars per acre was unauthorized and void and did not prevent the making of an additional assessment. Brite v. Grubbs, 144 Tenn. 647, 234 S.W. 759, 1921 Tenn. LEXIS 61 (1921).

A drainage district has the power to make assessment for repairs, for extension work, and maintenance. Grooms v. Board of Dirs., 167 Tenn. 589, 72 S.W.2d 772, 1934 Tenn. LEXIS 15 (1934).

3. Notice Unnecessary.

Notice of intention to make an additional assessment is not necessary. Brite v. Grubbs, 144 Tenn. 647, 234 S.W. 759, 1921 Tenn. LEXIS 61 (1921).

69-5-306. Division into tracts and classification of subdivisions.

In making the classification provided for in § 69-5-305, the commissioners are authorized to divide the land of one (1) owner lying in one (1) body into more than one (1) tract, and classify each subdivision of the tract, if they are of opinion that portions of the entire tract will be more benefited than other portions, and especially when the entire tract is a large one, and that it will be more equitable and just to so classify it in subdivisions.

Acts 1909, ch. 185, § 11; Shan., § 3871a56; Code 1932, § 4284; T.C.A. (orig. ed.), § 70-906; T.C.A. § 69-6-306.

69-5-307. Description of land — Objection to assessment and apportionment — Notice.

The commissioners shall specify in their report each tract of land by reasonable description and the ownership of the tract as it appears on the tax books of the county or as it has been previously adjudged in the proceeding. Any objection to such assessment and apportionment shall be filed in writing with the county clerk on or before twelve o'clock (12:00) noon of the day the matter of the assessment and apportionment is set for hearing by the court. The assessment may be made without notice, as taxes are assessed without notice in such cases; but publication shall be made in three (3) weekly newspapers published in the county where the proceeding is pending, if there are that number published in the county, otherwise in at least one (1) weekly newspaper, for two (2) consecutive weeks, notifying all parties, concerned in any way, of the date set for hearing the matter of assessment and apportionment by the court, when they may appear and be heard, if they desire. The last of the publications shall be at least five (5) days before the day set for the hearing, and the publication shall be in lieu and stead of notice personally served, but shall not give the names of the parties, but only a brief statement of the date and purpose of such hearing.

Acts 1909, ch. 185, § 11; 1913 (1st Ex. Sess.), ch. 25, § 5; Shan., § 3871a57; mod. Code 1932, § 4285; Acts 1957, ch. 329, § 1; 1961, ch. 217, § 1; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-907; T.C.A. § 69-6-307.

NOTES TO DECISIONS

1. Estopped from Denying Assessment.

Landowners in drainage district, by paying one or more of the yearly assessments levied against their land, thereby acquiesced in the establishment of the drainage district, and estopped themselves from contesting the validity of the assessments. Shelby County v. Anderson, 10 Tenn. App. 437, 1929 Tenn. App. LEXIS 49 (1929).

69-5-308. Publication.

If such district lies in more than one (1) county, publication need only be made in one (1) weekly newspaper published in each of the counties having land embraced within the district. If there are daily newspapers published in any county, but no weekly newspaper, it shall be sufficient, if such publication is made in a daily paper of such county, one (1) day in each week for the length of time required instead of in a weekly newspaper.

Acts 1915, ch. 63, § 8; Shan., § 3871a58; Code 1932, § 4286; T.C.A. (orig. ed.), § 70-908; T.C.A. § 69-6-308.

NOTES TO DECISIONS

1. In General.

Where the notice and publication thereof are in strict compliance with the statute and satisfy, in all respects, the due process clause of the Constitution, they are sufficient. Shelby County v. Anderson, 10 Tenn. App. 437, 1929 Tenn. App. LEXIS 49 (1929).

2. Clerical Errors in Publication.

Clerical errors in publication that are not misleading are not substantial. S. M. Williamson & Co. v. Shelton, 158 Tenn. 166, 11 S.W.2d 882, 1928 Tenn. LEXIS 137 (1928).

69-5-309. Objections to apportionment and assessments — Hearings.

When the day set for hearing has arrived, and the hearing is not continued by the court for good reason, as it may be, the county court shall proceed to hear and determine all objections made and filed to the report, and may increase, diminish, annul, or affirm the apportionment and assessments made in such report, or any parts of the report, as may appear to the court to be just and equitable; but in no case shall it be competent to show that the lands assessed would not be benefited by the improvement. The county court shall assess such apportionment so fixed by it upon the lands within such levee or drainage district.

Acts 1909, ch. 185, § 11; Shan., § 3871a59; Code 1932, § 4287; T.C.A. (orig. ed.), § 70-909; T.C.A. § 69-6-309.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

NOTES TO DECISIONS

1. Constitutionality.

A provision denying a landowner the right to reopen question of no benefit accruing to his land is not invalid in view of opportunity given him to be once heard. Obion County use of Houser Creek Drainage Dist. v. Coulter, 153 Tenn. 469, 284 S.W. 372, 1926 Tenn. LEXIS 8 (1926).

2. —Estoppel.

A landowner, not present at any stage of the proceeding and taking no step in furtherance of the establishment of the district, is not estopped by his payment of assessments from attacking the constitutionality of the statute. Obion County use of Houser Creek Drainage Dist. v. Coulter, 153 Tenn. 469, 284 S.W. 372, 1926 Tenn. LEXIS 8 (1926).

3. Review.

The supreme court is limited to question of whether the commissioners in making their determination as to the benefits received exceeded their jurisdiction or acted fraudulently or arbitrarily. Moody v. Dyer County Lewee & Drainage Dist., 208 Tenn. 699, 348 S.W.2d 328, 1961 Tenn. LEXIS 342 (1961).

Where the parties have had the opportunity to be heard by the commissioners on the question of no benefits, such determination is final and the issue may not again be raised upon review. Moody v. Dyer County Lewee & Drainage Dist., 208 Tenn. 699, 348 S.W.2d 328, 1961 Tenn. LEXIS 342 (1961).

69-5-310. Additional assessments.

If the first assessment made by the court for the original cost of any improvement as provided is insufficient, the court may make an additional assessment in the same ratio as the first.

Acts 1909, ch. 185, § 11; Shan., § 3871a60; Code 1932, § 4288; T.C.A. (orig. ed.), § 70-910; T.C.A. § 69-6-310.

NOTES TO DECISIONS

1. Recovery of Assessment Surplus.

Landowner who had paid special assessment was entitled to pro rata share of balance remaining in special assessment fund where project for which special assessment had been made had been abandoned even though bonds of district had been defaulted. Grooms v. Board of Dirs., 167 Tenn. 589, 72 S.W.2d 772, 1934 Tenn. LEXIS 15 (1934).

69-5-311. New report may be ordered and new commissioners appointed.

If, for any reason, the court annuls in toto or sets aside such report of the commissioners, it shall order them to make a new report, or shall remove them and appoint new commissioners to act as in the first instance, if desired by the parties concerned.

Acts 1909, ch. 185, § 11; Shan., § 3871a61; Code 1932, § 4289; T.C.A. (orig. ed.), § 70-911; T.C.A. § 69-6-311.

69-5-312. Levy upon lands of benefited owners — Ratio — Funds kept separate — Disbursement.

The assessments shall be levied upon the lands of the owners so benefited in the ratio mentioned in § 69-5-305, and shall be collected in the same manner as taxes for county purposes, except as specially provided in this chapter, and the funds so collected shall be kept as a separate fund, and shall be paid out only for purposes properly connected with such improvement, and on the order or warrant of the county mayor.

Acts 1909, ch. 185, § 12; Shan., § 3871a62; Code 1932, § 4290; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-912; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-312.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

NOTES TO DECISIONS

1. Lien of Assessment.

The assessment is a lien upon the land and subject to the warranty against encumbrances in the deed if not provided for by independent agreement. Hughes v. Herbert, 159 Tenn. 187, 17 S.W.2d 16, 1928 Tenn. LEXIS 74 (1929).

2. Application of Funds.

Proceeds of drainage assessments are to be devoted to the purpose for which they are levied. Grooms v. Board of Dirs., 167 Tenn. 589, 72 S.W.2d 772, 1934 Tenn. LEXIS 15 (1934).

Where, in the organization of a drainage district, the decree created two funds, namely, a fund for payment of bonds and interest, and “contingency or administration fund” to meet expenses and contingencies that might arise, and the county trustee failed to keep such funds separate, a claimant is entitled to reach that part of the fund in the hands of the trustee that was collected from landowners on assessments made for payment of bonds and interest. State ex rel. First Nat'l Bank v. Dunlap, 167 Tenn. 585, 72 S.W.2d 771, 1934 Tenn. LEXIS 14 (1934).

3. Unexpended Balances.

Where a drainage district made assessments for extension and repairs of drains, which were subsequently abandoned, leaving an unexpended balance in such fund, it should be prorated to the persons paying in the same, and the general assembly is without power to appropriate the fund to others. Grooms v. Board of Dirs., 167 Tenn. 589, 72 S.W.2d 772, 1934 Tenn. LEXIS 15 (1934).

69-5-313. Railroads and highways.

Whenever any railroad or public highway will be beneficially affected by the construction of any improvement or improvements in such district, it shall be the duty of the commissioners appointed to classify and assess benefits to determine and return in their report the amount of the benefit to such railroad or highway, and notice shall be served as to such railroad upon its nearest station agent, as provided in case of an individual property owner; and as to a highway, notice shall be served upon the county mayor, as in case of an individual property owner. When such special assessments have been approved and fixed by the county court as to such railroad, it shall be a debt due personally from the railroad company, and, unless the same is paid by the railroad company as special assessment, it may be collected in the name of the county in any court having jurisdiction; and as to a highway, such assessment shall be paid by the county out of the general county fund or highway tax fund, such assessments to be paid into the fund of such district.

Acts 1909, ch. 185, § 21; Shan., § 3871a93; Code 1932, § 4321; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-913; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-313.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-314. Claims commission to compensate districts for benefits accruing to highways.

  1. Whenever any levee or drainage district is or has been organized under appropriate statutes of this state providing for the levee or drainage district, which levee or drainage district embraces within its boundaries any highway or highways that are a part of the state highway system, and if it is contended that such levee or drainage district, when completed, will contribute materially to the protection of such state highways from floods and other similar elements, such levee or drainage district may file its petition before the claims commission setting forth the fact that such state highways have been benefited thereby, the amount of the benefits claimed and praying for compensation for such benefits.
  2. Upon the filing of the petition, the claims commission shall hold a hearing on the petition, at which evidence may be introduced with reference to the benefits or lack of benefits to the highway by the creation and completion of the district.
  3. If the claims commission is of the opinion, after the hearing, that the creation and completion of the district will result or has resulted in material benefit and protection to the highway or highways, then and in that event the claims commission is expressly authorized and empowered to direct payment from the general highway funds toward the creation of the district, such amount as it may find to fairly represent the benefits accruing to the highways and occasioned by the creation and completion of the district; provided, that the actual payment of the sums found to fairly represent such benefits may, at its option, be postponed by the claims commission until there has been a substantial completion of such district; and provided further, that this section does not apply to levee or drainage districts organized more than five (5) years prior to February 13, 1941.

Acts 1941, ch. 53, § 1; C. Supp. 1950, §§ 1034.11, 4232.1 (Williams, § 4406a); T.C.A. (orig. ed.), § 70-914; T.C.A. § 69-6-314.

Cross-References. Claims against the state, title 9, ch. 8.

Part 4
Correction of Errors

69-5-401. Mistake in the number of acres — Correction.

Whenever a district has been established or is being established and a mistake has been made as to the number of acres assessed to the owner of any tract of land embraced in the district, the decree in the cause fixing or adjudging the number of acres shall not be final until the assessment roll provided by statute to be made by the directors has been reported to the court by the directors and decree has been entered confirming the acres; and when any such mistake shall have been made, the aggrieved person may file a petition in the county court in which the cause is pending, seeking to have the mistake corrected.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b1; Code 1932, § 4269; T.C.A. (orig. ed.), § 70-1001; T.C.A. § 69-6-401.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. Circuit court defined, § 69-5-102.

69-5-402. Mistake in number of acres — Notice — Hearing — Decree.

Upon the filing of such petition, the county clerk shall give at least ten (10) days' written notice to all the directors of the district of the filing of the petition and at any time after twenty (20) days from the service of such notice on the directors the matter may be heard by the court, either upon oral testimony or upon depositions or on documentary evidence and on all the records in the cause, or on all such evidence, and the court shall render decree according to the merits of the controversy.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b2; Code 1932, § 4270; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1002; T.C.A. § 69-6-402.

69-5-403. Mistake in acres — Appeal.

From a decree correcting a mistake in the number of acres, either side may appeal upon the same terms and conditions and to the same courts as provided for appeal from the decree on commissioners' reports fixing the acres assessed to each owner.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b3; Code 1932, § 4271; T.C.A. (orig. ed.), § 70-1003; T.C.A. § 69-6-403.

69-5-404. Mistake in acres — Correction after decree has been made final.

No such petition shall be filed or heard after the decree has been rendered upon the directors' report upon assessment roll and the number of acres assessed to each owner, and the boundaries of land so assessed to the owner shall be final after the rendering of the decree upon the report on assessment roll, except as provided in § 69-5-305.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b4; Code 1932, § 4272; T.C.A. (orig. ed.), § 70-1004; T.C.A. § 69-6-404.

69-5-405. Mistake in owner's identity — Correction.

  1. When a mistake has been made by which the lands belonging to one person have been assessed to or in the name of another person or as embraced within the boundaries set out for a tract assessed to another person, the original decree fixing such assessment shall not be final, and any aggrieved party may file a petition in the county court in which the drainage or levee cause is pending to correct such mistake and to correct the assessments and all decrees, reports, blueprints, and plats accordingly.
  2. Upon the filing of such petition, the county clerk shall give ten (10) days' written notice to the person or persons to whom it is claimed that such land should have been assessed, and at any time within twenty (20) days after the service of such notice, the cause may be heard by the court as provided for hearing causes in § 69-5-402, and the court shall render decree according to the merits of the controversy.
  3. If the court decrees that such mistake was made, then by decree all the reports, decrees, blueprints, maps, and plats shall be amended and corrected accordingly.
  4. In case any assessment or assessments of any land thus newly assessed to any person is or are past due, whether they have been paid by the aggrieved person or not, they shall be collected by the county trustee immediately and shall become delinquent and shall be proceeded against as delinquent as now provided by law for proceeding in the matter of delinquent assessment, unless paid within sixty (60) days after rendering such decree. If any of the assessment has been previously collected by the trustee from the aggrieved party in the petition, it shall be refunded to the aggrieved party by the trustee upon warrant drawn as now provided by law for the drawing and issuing of warrants in the matter of drainage and levee districts.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b5; Code 1932, § 4273; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1005; T.C.A. § 69-6-405.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

NOTES TO DECISIONS

1. Defects Not Curable Under Section.

Where land was erroneously assessed against “Ross” instead of “Rawls” there being no “Ross,” and the acreage was erroneously stated in the assessment, the defect could not be cured under this section. Hirsh v. First Forked Deer Drainage Dist., 14 Tenn. App. 285, 1931 Tenn. App. LEXIS 37 (Tenn. App. Oct. 23, 1931).

69-5-406. Mistake in owner's identity — Appeal.

From a decree of the county court correcting a mistake in the owner's identity, any aggrieved party may appeal to the circuit court of the county, upon giving bonds for costs within ten (10) days after the decree in such amount as the county court may fix, and the cause shall be heard de novo in the circuit court, and from the judgment of such circuit court, appeals shall lie as provided by the Tennessee Rules of Appellate Procedure.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b6; Code 1932, § 4274; Acts 1981, ch. 449, § 2; T.C.A. (orig. ed.), § 70-1006; T.C.A. § 69-6-406.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

For appeals from circuit court, see T.R.A.P. 3(e).

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U.L. Rev. 241.

69-5-407. Mistake in owner's identity — Certified copy of decree recorded by clerk and transmitted to trustee.

A certified copy of the decree in a case of a mistake in the owner's identity shall be certified by the clerk of the court to the clerk of the county having possession of the “drainage record” book of the district, and the clerk shall copy the decree on the drainage record book as a part of the records of the drainage district, and file the decree among the papers in the cause in which the drainage district was established. The county clerk shall also certify a copy of the decree from the drainage record book to the trustee of the county charged with the collection of the assessments against the property affected by the decree, and the trustee shall note the changes on the trustee's “drainage assessment book”, which has been made out and delivered to the trustee by the county clerk, and thereafter collect the assessments on the property according to the changes so made in the decree.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b7; Code 1932, § 4275; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1007; T.C.A. § 69-6-407.

Cross-References. Drainage assessment book, § 69-5-813.

Drainage record book, § 69-5-140.

Part 5
Appeals

69-5-501. Right of appeal — Time — Notice — Bond.

Any party aggrieved may appeal from the decision of the court in establishing, or refusing to establish, the improvement district, or its decision in the allowance of damages, such appeal being to the circuit court, and any party so desiring to appeal shall have the right to have the benefit of appeal at any time within five (5) days after the decision is made, without formally praying an appeal, by filing with the clerk of the county a notice of the appeal, at the same time filing with such clerk a bond, to be approved by the clerk in the sum and condition prescribed in § 69-5-502.

Acts 1909, ch. 185, § 8; 1913 (1st Ex. Sess.), ch. 25, § 4; Shan., § 3871a39; Code 1932, § 4256; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1101; T.C.A. § 69-6-501.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 241.

69-5-502. Penalty and condition of appeal bond.

Any person opposing the creation of such district who appeals from the judgment of the county court establishing the district shall execute bond, with good security, in the penalty of four percent (4%) of the estimated cost of the improvement, as shown by the engineer's report, and conditioned to pay all such damages, actual, and also punitive, if any, and costs as may be suffered by the district and the petitioners for the damages, if such appeal is not successfully prosecuted, such damages to be recovered by suit upon the bond or writ of inquiry in the circuit court, which may be awarded in such cases. If the appeal is from a judgment of the county court refusing to establish the district, the appeal bond shall be for costs only. The appeal bonds, when made by persons asking damages or by persons opposing the establishment of such district, shall be made payable to the state of Tennessee, for the use of those entitled, upon which bond judgment may be rendered in favor of the party or parties litigant for costs, and suits maintained for damages, actual, and also punitive, if any, in the name of the state, for the use of the district or parties entitled.

Acts 1913 (1st Ex. Sess.), ch. 25, § 4; Shan., § 3871a40; Code 1932, § 4257; T.C.A. (orig. ed.), § 70-1102; T.C.A. § 69-6-502.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 241.

69-5-503. Appeal bonds by district — Petitioner signing for district — Sureties — No pauper oath.

If an order has been entered by the county court creating or establishing a district, and giving it a name or designation, the appeal bonds, when the district or petitioners for the bonds are appellants, may be made by the district in such name, to be signed by some one (1) of the petitioners nominated for that purpose by the county court, it being declared the duty of the county court to so nominate some of the petitioners for this purpose; and on any appeal from the circuit court to an appellate court, the name of the district, if it has been ordered established by the county court, may in like manner be signed to any appeal bond, the circuit court nominating the petitioner to so sign it. Nothing in this chapter is to be construed as excusing the giving of good security on any such bonds for appeal, and the district shall be liable for any damages and costs adjudged against it on any appeal, as well as the sureties on the bonds; and the oath provided by law for poor persons shall not be allowed in lieu of any of the bonds.

Acts 1913 (1st Ex. Sess.), ch. 25, § 4; Shan., § 3871a41; Code 1932, § 4258; T.C.A. (orig. ed.), § 70-1103; T.C.A. § 69-6-503.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 241.

69-5-504. Continuation of work pending appeal.

When an appeal is taken and prosecuted from the judgment of the county court awarding damages, such appeal shall not prevent the work of the improvement or district being proceeded with, and the appropriation and condemnation of the lands, as provided by §§ 69-5-20769-5-209, if the district, or the petitioners for the district, or any of them, will give bond, with good security, payable to the party or person awarded damages, in double the amount of damages awarded and costs as may be awarded on appeal.

Acts 1913 (1st Ex. Sess.), ch. 25, § 4; Shan., § 3871a42; Code 1932, § 4259; T.C.A. (orig. ed.), § 70-1104; T.C.A. § 69-6-504.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 241.

69-5-505. Damages — Recording and certification of award.

The circuit court shall hear any such appeal de novo; and if the appeal is from the amount of damages allowed by the county court, the amount ascertained and fixed by the circuit court shall be entered of record, but no judgment shall be entered for that amount. The amount thus ascertained shall be certified by the clerk of the circuit court to the county court, which court shall thereafter proceed as if the amount had been by it allowed the claimant as damages.

Acts 1909, ch. 185, § 8; Shan., § 3871a43; Code 1932, § 4260; T.C.A. (orig. ed.), § 70-1105; T.C.A. § 69-6-505.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 241.

69-5-506. Establishment of district — Circuit court order.

If the appeal is from the action of the county court in establishing, or refusing to establish, the drainage or levee district, the circuit court shall enter such order as it deems just and proper in the premises, and the clerk of that court shall certify the order to the county court, which shall proceed thereafter in the matter in accordance with the order of the circuit court.

Acts 1909, ch. 185, § 8; Shan., § 3871a44; Code 1932, § 4261; T.C.A. (orig. ed.), § 70-1106; T.C.A. § 69-6-506.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 241.

69-5-507. Docketing — Consolidation — Transcript.

In the circuit court, in such cases, the cases shall be docketed with the appellant or appellants as plaintiffs and the adversary parties as defendants, and where there are several appellants on questions of damages, the circuit court may consolidate the causes and try them together, if practicable, making proper findings or orders as to each; and in appeals from orders of the county court made at the same session where there are several appellants, at their request only one (1) transcript shall be made out by the court clerk.

Acts 1909, ch. 185, § 8; Shan., § 3871a45; Code 1932, § 4262; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1107; T.C.A. § 69-6-507.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 241.

69-5-508. Costs.

On appeals under this part, it shall rest in the discretion of the circuit court how the costs shall be adjudged and distributed among the litigants.

Acts 1909, ch. 185, § 8; Shan., § 3871a46; Code 1932, § 4263; T.C.A. (orig. ed.), § 70-1108; T.C.A. § 69-6-508.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 241.

69-5-509. Trial with or without jury.

The trial in the circuit court shall be with or without a jury, as the court may deem the right of the parties to be under the particular issues to be tried, the right to a jury being accorded wherever the parties have such right under the law of the land.

Acts 1909, ch. 185, § 8; Shan., § 3871a47; Code 1932, § 4264; T.C.A. (orig. ed.), § 70-1109; T.C.A. § 69-6-509.

Law Reviews.

The Tennessee Court System — Circuit Court (Frederic S. Le Clercq), 8 Mem. St. U. L. Rev. 241.

NOTES TO DECISIONS

1. Right to Jury.

On application to establish a drainage district, either party, under this section, is entitled to a jury trial, on appeal to the circuit court, according to the law of the land, as to the advisability, propriety, and feasibility of establishing the district and of including certain lands, for such questions are purely of legal cognizance. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

The fact that a construction of this section, so as to award a jury trial might render the act useless, does not concern the court, if the constitutional right of a jury trial exists, for the feasibility of the act is for the general assembly. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

2. Denial of Jury Trial.

Where landowners in a proceeding to establish a drainage district were denied a jury trial to which they were entitled, the Supreme Court, on appeal, cannot determine the advisability of establishing the district, but must reverse and remand the case for a new trial. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

3. Questions Provable by Laymen.

In a proceeding to establish a drainage district, questions as to land topography, rapidity of water flow, the value of the land before and after drainage, the proportionate assessment and damages arising to land from the establishing of a drain, can all be proved by the evidence of laymen or nonexpert witnesses. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

4. Questions Provable by Experts.

In a proceeding to establish a drainage district, the testimony of laymen as to the capacity of the canal for removing accumulated water from the surface of the drainage district was not competent, for such conditions are matters of expert mathematical calculation, for the dimensions of a canal required profitably to drain a given area under given conditions has been reduced to a mathematical formula from which experts can determine the proper dimensions and grade of the drainage canal. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

Part 6
Board of Directors

69-5-601. Appointment — Qualifications — Term — Duties and powers.

  1. Except as provided in subsection (b), after a district has been located and established as provided, the county legislative body shall appoint two (2) directors, or in its discretion, four (4) directors of the district, who shall be owners of lands, or interested in lands, in the district, and at least one (1) of those first appointed to be one of the petitioners for the establishment of the district or a petitioner's successor in estate or interest, the directors to hold their offices for two (2) years from the date of appointment. These two (2) or four (4) thus appointed and their successors, together with the county mayor, shall constitute the directors, or board of directors, of such district, and as directors shall have the general control and management of the business affairs of the district and supervision of the district, and be vested with power to make contracts, for all improvement to be done in the district.
  2. In any county having a population of not less than thirty-four thousand eight hundred fifty (34,850) nor more than thirty-five thousand (35,000), according to the 1990 federal census or any subsequent federal census, the county legislative body may, in its discretion, appoint six (6) directors of the drainage district. If the county legislative body elects, in its discretion, to appoint six (6) such directors, the directors shall otherwise comply with all the requirements governing directors of drainage districts set out in subsection (a).

Acts 1909, ch. 185, § 18; Shan., § 3871a78; Code 1932, § 4306; Acts 1972, ch. 846, § 1; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-1201; Acts 1993, ch. 26, § 1; 2003, ch. 90, § 2; T.C.A. § 69-6-601.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

NOTES TO DECISIONS

1. Powers and Duties of Directors.

Directors are charged with duty of executing a governmental purpose and vested with power to control and contract. Pritchard v. Johnson-Toby Constr. Co., 155 Tenn. 571, 296 S.W. 17, 1926 Tenn. LEXIS 81 (1927).

2. Compensation.

The county judge (now county mayor) is not entitled to compensation as a director, his salary being fixed by another statute. Obion County use of Houser Creek Drainage Dist. v. Coulter, 153 Tenn. 469, 284 S.W. 372, 1926 Tenn. LEXIS 8 (1926).

3. Employing Attorneys.

There is nothing in the statute that confers power on the chairman of the board of the drainage district or on the chairman of the county court (now county mayor) to employ attorneys to bring suits for the collection of delinquent assessments due the district. Fayette County ex rel. Loosahatchie River Drainage Dist. v. Graham, 178 Tenn. 54, 156 S.W.2d 379, 1941 Tenn. LEXIS 29 (1941).

69-5-602. Vacancies — Removal for cause — Trial and appeal.

If there is a vacancy in the office of the director appointed as mentioned in § 69-5-601, because of death, resignation, or other reason, the county legislative body shall appoint another director of like qualifications to fill such vacancy until the end of the two-year term, and for sufficient reason the county legislative body may remove a director so appointed, but not until such director has had at least five (5) days' notice of the time of the hearing, and of the grounds on which the director should be removed, as alleged, and the director shall thus be entitled to be heard and to introduce proof upon the issue as to whether the director should be so removed as a director. If, on the hearing, the decision of the county legislative body is that the director be removed, the director may appeal from the decision, on giving proper cost bond, to the circuit court of the county, where the matter shall be heard anew and such judgment given as that court deems just and proper. If a director is removed, the county legislative body shall appoint another to serve the remainder of the two-year term, having like qualifications as to ownership of lands, as provided in this part.

Acts 1909, ch. 185, § 18; Shan., § 3871a79; Code 1932, § 4307; T.C.A. (orig. ed.), § 70-1202; T.C.A. § 69-6-602.

69-5-603. Subsequent appointments.

At the end of each two-year term, the office of the appointed directors shall be again filled by appointment by the county legislative body from among those owning or interested in lands in such district.

Acts 1909, ch. 185, § 18; Shan., § 3871a80; Code 1932, § 4308; modified; T.C.A. (orig. ed.), § 70-1203; T.C.A. § 69-6-603.

69-5-604. Officers — Bond of treasurer.

The county mayor shall be chair of the board of directors, and the board shall elect one (1) of the other directors secretary and treasurer of the board, who, as treasurer, shall give bond in the sum of twenty-five thousand dollars ($25,000) to faithfully account for all money coming into the treasurer's hands, the bond to be approved by the county legislative body and payable to the county or state, for the use of the district, and to be recorded in the drainage record.

Acts 1909, ch. 185, § 18; Shan., § 3871a81; Code 1932, § 4309; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-1204; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-604.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-605. Tie votes.

When there is an even number of directors of such district and there is a tie vote on any matter coming before the board of directors, then the chair has the right to give the deciding vote.

Acts 1913 (1st Ex. Sess.), ch. 25, § 11; Shan., § 3871a121; Code 1932, § 4350; T.C.A. (orig. ed.), § 70-1205; T.C.A. § 69-6-605.

69-5-606. Compensation and expenses of directors.

Members of the board of directors shall receive as compensation for their services, in attending to their duties as directors, fifty cents (50¢) per hour for the time actually consumed in attending to such duties, but not to exceed twenty-five (25) hours in any one (1) month, and also their actual expenses paid out or incurred on account of attending to their duties as directors. The account for time and expenses shall be kept, made out, sworn to, and filed with the clerk of the county before payment is made.

Acts 1909, ch. 185, § 36; 1915, ch. 63, § 5; Shan., § 3871a144; Code 1932, § 4379; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1206; T.C.A. § 69-6-606.

Part 7
Construction and Maintenance by Districts

69-5-701. Contracts for improvements.

No contracts for improvements to be done in a drainage or levee district shall be made until after the commissioners have made their inspection, classification, and apportionment as directed in §§ 69-5-30169-5-312, nor until the question of classification and apportionment and assessment of benefits has been determined and settled by the court; but after the commissioners and the court have so acted, then such contracts may be made by the board of directors of the district.

Acts 1909, ch. 185, § 19; Shan., § 3871a82; Code 1932, § 4310; T.C.A. (orig. ed.), § 70-1207; T.C.A. § 69-6-701.

69-5-702. Notice of work.

Before entering into any contract for improvements, the board of directors of the improvement district shall cause notice to be given once a week for four (4) consecutive weeks in some newspaper published in the county where the improvement is located, and such additional publication elsewhere as it may direct of the time and place of letting the work of construction of the improvement, and in the notice it shall specify the approximate amount of work to be done in each section, and the time fixed for its commencement and completion.

Acts 1909, ch. 185, § 19; Shan., § 3871a83; Code 1932, § 4311; T.C.A. (orig. ed.), § 70-1208; T.C.A. § 69-6-702.

69-5-703. Contracts let to lowest bidders — Rejection of bids and readvertisement.

The board of directors shall award contract or contracts for each section of the work to the lowest responsible bidder or bidders for the contract, or it may award the contract as a whole to the lowest responsible bidder, exercising its own discretion as to letting the work as a whole or in sections, and reserving the right to reject any and all bids and readvertise the letting of the work.

Acts 1909, ch. 185, § 19; Shan., § 3871a84; Code 1932, § 4312; T.C.A. (orig. ed.), § 70-1209; T.C.A. § 69-6-703.

69-5-704. Deposits by bidders.

Each person bidding for such work shall deposit with the treasurer of the board of directors in cash or certified check a sum equal to ten percent (10%) of the amount of the bid, not in any event, however, to exceed ten thousand dollars ($10,000), or file a solvent bond for that amount conditioned to execute the contract if entered into. The deposit or bond shall be returned to the person if the bid is not successful; if the bid is successful, the deposit or bond shall be retained as a guarantee only of the person's good faith in entering on the contract.

Acts 1909, ch. 185, § 19; Shan., § 3871a85; Acts 1921, ch. 144, § 2; mod. Code 1932, § 4313; T.C.A. (orig. ed.), § 70-1210; T.C.A. § 69-6-704.

69-5-705. Bond or deposit of contractor — Return of bid deposit.

The successful bidder shall be required to execute a bond, with sufficient corporate surety or personal sureties, payable to the county, for the use and benefit of the district, in an amount equal to twenty-five percent (25%) of the estimated cost of the work so let, or may deposit such amount in cash with the treasurer of the board of directors as security for the performance of the contract, and upon the execution of such bond or the making of such deposit, the deposit originally made with the bid shall be returned to the bidder.

Acts 1909, ch. 185, § 19; Shan., § 3871a86; Code 1932, § 4314; T.C.A. (orig. ed.), § 70-1211; T.C.A. § 69-6-705.

NOTES TO DECISIONS

1. Recovery on Bond.

Upon failure of contractor to perform his work, the cash deposit is forfeited to the county; or if bond has been executed, recovery may be had by suit in name of county, for use of the district. Pritchard v. Johnson-Toby Constr. Co., 155 Tenn. 571, 296 S.W. 17, 1926 Tenn. LEXIS 81 (1927).

69-5-706. Forfeiture of deposit and action for breach of contract.

If any person to whom the work, or any portion of the work, in an improvement district has been let fails to perform the work according to the terms specified in the contract, then the cash deposited by the person shall be forfeited for the benefit of such district and be paid into its fund; or if bond has been given by the contracting party so failing, then recovery of the damages sustained may be had by suit in the name of the payee in such bond for the use of the district, and the damage on judgment for the damages collected and paid into the fund of the district.

Acts 1909, ch. 185, § 37; Shan., § 3871a145; Code 1932, § 4380; T.C.A. (orig. ed.), § 70-1212; T.C.A. § 69-6-706.

69-5-707. Engineer.

The board of directors shall employ a competent engineer to take charge and supervision of the construction of such improvement work, contracting with the engineer for compensation for services in such sum or at such rate as may be agreed upon, and to be paid as other expenses of such district. The directors may remove such engineer and contract with another, if they see fit for any reason.

Acts 1909, ch. 185, §§ 20, 36; Shan., §§ 3871a87, 3871a137; Code 1932, §§ 4315, 4372; T.C.A. (orig. ed.), § 70-1213; T.C.A. § 69-6-707.

Cross-References. Salary and expenses, § 69-5-115.

69-5-708. Bond of engineer.

The board of directors shall require the engineer to give bond, in such sum as it may deem proper, for the faithful performance of duties, such bond to be payable to the county or state, for the use of the improvement district, and filed with the county clerk and recorded in the drainage record.

Acts 1909, ch. 185, § 20; Shan., § 3871a92; Code 1932, § 4320; T.C.A. (orig. ed.), § 70-1214; T.C.A. § 69-6-708.

69-5-709. Monthly estimates of work and payments thereon.

The engineer in charge of the construction shall furnish the contractor monthly estimates of the amount of work done on each section, and upon filing the estimates with the county clerk, the county mayor shall draw a warrant in favor of such contractor for eighty percent (80%) of the value of the work done according to the estimate.

Acts 1909, ch. 185, § 20; Shan., § 3871a89; Code 1932, § 4317; impl. am. Acts 1978, ch. 934, §§ 16, 22, 36; T.C.A. (orig. ed.), § 70-1215; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-709.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-710. Warrant for balance due upon completion of work.

When the work is completed to the satisfaction of the board of directors and the engineer, and so certified by the engineer and the board, and such certificate is filed with the county clerk, then the county mayor shall draw a warrant in favor of the contractor for the balance due.

Acts 1909, ch. 185, § 20; Shan., § 3871a90; Code 1932, § 4318; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-1216; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-710.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-711. Warrants — Manner of drawing and payment.

All warrants shall be drawn upon the county trustee as ordinary county warrants are drawn, but shall be payable only out of the fund provided for the district, and shall so state upon their face.

Acts 1909, ch. 185, § 20; Shan., § 3871a91; Code 1932, § 4319; T.C.A. (orig. ed.), § 70-1217; T.C.A. § 69-6-711.

69-5-712. Drainage overseer.

After the main improvement in any drainage district, or drainage and levee district, has been completed, the board of directors, if it deems necessary for the protection of the district, and for the proper maintenance of the efficiency of the improvement, may employ a competent person to look after and take care of the same. The person so employed shall be designated “drainage overseer.” The board of directors shall define the duties of the drainage overseer, and contract with the drainage overseer to perform the prescribed duties, and contract for the amount to be paid the drainage overseer for such services. The board of directors has the right, at any time, to discharge the drainage overseer and employ another whenever, in its judgment, it is to the best interest of the district that it be done. The compensation of the drainage overseer shall be paid out of any funds in the district, not needed for the payment of bonds and interest maturing, and other improvements that are to be made, during the year. The payment will be made as is provided for other payments under the drainage law.

Acts 1915, ch. 63, § 3; Shan., § 3871a88; Code 1932, § 4316; T.C.A. (orig. ed.), § 70-1218; T.C.A. § 69-6-712.

69-5-713. Bridges built by county across public highway.

Whenever the making of an improvement across a public highway necessitates the building of a bridge over the highway, the county shall build and construct the same and pay all costs of the bridge out of the county bridge fund, if such a fund is provided, and, if not, out of the general county fund.

Acts 1909, ch. 185, § 22; Shan., § 3871a94; Code 1932, § 4322; T.C.A. (orig. ed.), § 70-1219; T.C.A. § 69-6-713.

69-5-714. Use of ditch or watercourse by assessed landowner.

The owner of any land or lot that has been assessed for the payment of the cost of the location and construction of any ditch, drain, or watercourse shall have the right to use it as an outlet for lateral drains from the land or lot.

Acts 1909, ch. 185, § 23; Shan., § 3871a95; Code 1932, § 4323; T.C.A. (orig. ed.), § 70-1220; T.C.A. § 69-6-714.

NOTES TO DECISIONS

1. Cost of Lateral Drains.

Where after the main drain is constructed, landowners, in order to drain their lands, must construct private laterals, the cost of such laterals cannot be considered in determining the propriety of establishing a drainage district, which depends primarily on consideration of public health, welfare, and public utility. Drainage Dist. No. 4 v. Askew, 140 Tenn. 314, 204 S.W. 984, 1918 Tenn. LEXIS 45 (1918).

69-5-715. Use by landowner subject to control of district directors.

The drainage district, or drainage and levee district, or the directors thereof, has the right to control the manner in which lateral drains are emptied into the main ditch, drain, or watercourse, in order to prevent such main ditch or drain from being filled or blocked by silt or sand, brought in by such lateral drains.

Acts 1913 (1st Ex. Sess.), ch. 25, § 9; Shan., § 3871a96; Code 1932, § 4324; T.C.A. (orig. ed.), § 70-1221; T.C.A. § 69-6-715.

69-5-716. Control of discharge of creek or branch into main ditch or drain.

The district, or the directors thereof, have a like right to control the manner in which any creek or branch shall empty or be emptied into the main ditch, drain, or watercourse, in order to prevent such from being filled or blocked by silt or sand, brought in by such creek or branch.

Acts 1913 (1st Ex. Sess.), ch. 25, § 9; Shan., § 3871a97; Code 1932, § 4325; T.C.A. (orig. ed.), § 70-1222; T.C.A. § 69-6-716.

69-5-717. Application by owner to use ditch or drain — Designation of use.

An owner desiring to exercise the right to use the ditch, drain, or watercourse, as an outlet for lateral drain or drains, before doing so, shall make application to the board of directors of the district in which the land is situated, to designate the place and manner in which the lateral shall cross the right-of-way, and empty into the ditch, drain, or watercourse. Upon such application being made, it shall be the duty of the board of directors to investigate the matter and make such designation. It is unlawful for any landowner to make any ditch or lateral, upon and across the right-of-way, and into the main ditch, drain, or watercourse, otherwise than as designated by the board of directors. It is unlawful for any landowner to cut any lateral, ditch, or drain, and stop the same at or near the margin of the right-of-way of the district, so as to empty water into and upon the right-of-way, except by the written consent of the board of directors of the district.

Acts 1915, ch. 63, § 6; Shan., § 3871a98; Code 1932, § 4326; T.C.A. (orig. ed.), § 70-1223; T.C.A. § 69-6-717.

69-5-718. Location of lateral drains — Determination by board and fixing of damages.

  1. If a controversy arises among any of the landowners, as to the location or character of any lateral drain or ditch between or across the lands of such owners, any one (1) or more of such landowners may, by petition, make application to the board to locate the ditch or drain and determine its character. Such petition shall set out with reasonable certainty the matters in controversy; and upon the petition being filed, it shall be the duty of the board of directors to fix a day for going upon the premises to determine the same. Five (5) days' notice of the time and place shall be given to the other parties interested who are not petitioners. On the day fixed, it shall be the duty of the board of directors to go upon the premises and examine the premises; and if in their judgment, a ditch, drain, or lateral should be made, in order to give the landowners the proper means in draining their low and wet lands and reaching the main improvements, they will locate the place for the lateral, drain, or ditch, determine the character of the same, and fix the amount of damages, if any, to be paid, and direct the petitioner or petitioners to proceed and make the ditch, drain, or lateral.
  2. The board of directors shall set out in writing the action taken, and spread it upon the minutes of the board of directors, and file the original paper with the other papers of the board.

Acts 1915, ch. 63, § 6; Shan., §§ 3871a99, 3871a100; Code 1932, §§ 4327, 4328; T.C.A. (orig. ed.), §§ 70-1224, 70-1225; T.C.A. § 69-6-718.

69-5-719. Damages a lien on land — Enforcement of lien.

  1. The damages assessed shall be a lien upon tracts of land in the district of the owner or owners respectively affected by the improvement, against whom the damages are assessed, but this lien shall be inferior to the lien of the general assessment, which lien shall be enforced by a bill or petition in the county court of the county in which the land is situated.
  2. Jurisdiction is conferred upon the county courts to enforce such liens.

Acts 1915, ch. 63, § 6; Shan., § 3871a101; Code 1932, § 4329; T.C.A. (orig. ed.), § 70-1226; T.C.A. § 69-6-719.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-720. Appeal from action of directors to circuit court — Bonds.

Any landowner against whom such damages have been assessed, or who is aggrieved by the action of the board of directors, shall have the right to appeal from the action of the board of directors to the next term of the circuit court, upon giving bond in double the amount of the damages assessed, and a cost bond of two hundred fifty dollars ($250), and the case shall stand for trial in the circuit court, at the first term after the papers have been filed.

Acts 1915, ch. 63, § 6; Shan., § 3871a102; Code 1932, § 4330; T.C.A. (orig. ed.), § 70-1227; T.C.A. § 69-6-720.

69-5-721. Continuation of work pending appeal.

If the appeal is only as to the matter of damages, the work of constructing the laterals, ditch, or drain shall not be delayed by the appeal; provided, that the other parties interested make a bond payable to the state of Tennessee for the use and benefit of the parties appealing, in an amount double the damages assessed and fixed by the board of directors.

Acts 1915, ch. 63, § 6; Shan., § 3871a103; Code 1932, § 431; T.C.A. (orig. ed.), § 70-1228; T.C.A. § 69-6-721.

69-5-722. Collection of assessments — Separate fund.

The assessment shall be collected by the county trustee as county taxes are collected, except as provided in this section, and the funds so collected shall be kept as a separate fund, and shall be paid out only for purposes properly connected with such improvement on the order or warrant of the county mayor; provided, that such assessments may be collected in chancery, as provided in part 8 of this chapter, and no personal property of the owner of land so assessed shall be liable or distrained for such assessment, but the land so assessed only shall be liable for such assessment.

Acts 1909, ch. 185, § 24; Shan., § 3871a104; Code 1932, § 4332; T.C.A. (orig. ed.), § 70-1229; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-722.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Cross-References. Compensation for collecting and paying out assessments and for certified statements, § 69-5-835.

NOTES TO DECISIONS

1. Landowners Not Personally Liable.

Judgments against individual landowners are limited to assessments against the land of each particular individual within the drainage district, and such judgments can be enforced against no other property of the individual than such land. First Nat'l Bank v. Obion County, 3 F.2d 623, 1924 U.S. Dist. LEXIS 1277 (D. Tenn. 1924).

It was not the intention to make drainage assessments personal liabilities of the landowners. Grooms v. Board of Dirs., 167 Tenn. 589, 72 S.W.2d 772, 1934 Tenn. LEXIS 15 (1934).

2. Interests in Unexpended Balance.

The interest of a landowner in an unexpended balance of a fund, arising from additional assessments for drainage purposes, is his personal estate, and cannot be subjected by distraint, offset, or otherwise, to the payment of another assessment as to which he is delinquent. Grooms v. Board of Dirs., 167 Tenn. 589, 72 S.W.2d 772, 1934 Tenn. LEXIS 15 (1934).

Plaintiff who paid special assessment was not barred from recovering pro rata share of unexpended balance of special assessment fund even though he had not paid original assessment on defaulted bonds. Grooms v. Board of Dirs., 167 Tenn. 589, 72 S.W.2d 772, 1934 Tenn. LEXIS 15 (1934).

69-5-723. Improvements may be limited to what parties desire.

The improvement in the drainage districts provided for in this chapter may consist solely, if so desired by those concerned, in the changing in whole or in part of the course or channel of a natural watercourse, or in straightening, as far as practicable, such watercourse and cleaning out so much of its natural channel as it is desired to utilize; or the improvement in such drainage district may, in addition to the main ditch, or drain, or channel, include such other lateral and other ditches and levees as may be deemed proper or necessary.

Acts 1909, ch. 185, § 25; Shan., § 3871a105; Code 1932, § 4333; T.C.A. (orig. ed.), § 70-1230; T.C.A. § 69-6-723.

69-5-724. Unlawful to injure ditches, canals, or other improvements.

  1. It is unlawful for any person, or corporation, in any way, to injure, damage, or obstruct the rights-of-way, ditches, canals, or other improvements of any drainage district, levee district, and drainage and levee district in the state.
  2. Any person or corporation that violates subsection (a) commits a Class C misdemeanor.

Acts 1915, ch. 84, §§ 1, 2; Shan., §§ 3871a157, 3871a158; Code 1932, §§ 4392, 4393; T.C.A. (orig. ed.), §§ 70-1231, 70-1232; Acts 1989, ch. 591, § 113; T.C.A. § 69-6-724.

Cross-References. Damage to or travel on levees, penalties, § 39-14-408.

Penalty for Class C misdemeanor, § 40-35-111.

Part 8
Levy and Collection of Assessments

69-5-801. Special assessment made after creation of district.

If, after the district has been created, and the commissioners for the assessment of benefits have made their report, and the report has been acted upon, and confirmed by the court, and the time for an appeal from the confirmation has elapsed, and no appeal has been taken, it appears to the court that the costs and expenses of the proceedings, up to that stage of the proceedings, have not been otherwise paid, the court shall have the power to make a special assessment upon all the lands within the district, for an amount sufficient to pay the cost and expenses, including the expenses of collecting the special assessment.

Acts 1915, ch. 63, § 2; Shan., § 3871a63; Code 1932, § 4291; T.C.A. (orig. ed.), § 70-1301; T.C.A. § 69-6-801.

69-5-802. Collection and enforcement of assessment.

  1. The assessment, the collection of the assessment, and the delinquencies, if any, shall be collected and enforced in the same manner, all as provided in this part, and by law, and the compensation of the trustee for collecting and paying over the assessment shall be the same as is provided by § 69-5-931.
  2. For this special assessment, the court may fix the dates within which the assessment shall be collected, the court fixing the same within such dates as the court shall deem reasonable for the collection of the same.
  3. The assessments shall be a lien upon the respective tracts of land in the district upon which the assessment is made, but shall be inferior to the lien of any assessment that shall thereafter be made for the purpose of creating a fund for the payment of bonds and the interest on the same, as provided in this part and part 9 of this chapter and by law.

Acts 1915, ch. 63, § 2; Shan., § 3871a64; mod. Code 1932, § 4292; T.C.A. (orig. ed.), § 70-1302; T.C.A. § 69-6-802.

Cross-References. Compensation for collecting and paying out assessments and for certified statements, § 69-5-835.

NOTES TO DECISIONS

1. Nature of Assessment.

The assessment is a lien on the realty and subject to warranty against encumbrances in a deed if not provided for by independent agreement. Hughes v. Herbert, 159 Tenn. 187, 17 S.W.2d 16, 1928 Tenn. LEXIS 74 (1929).

2. Conveyance of Land Subject to Assessment.

Upon conveyance of land subject to assessments with warranty against encumbrances, the grantor pays installments due at the date of conveyance, but not those not so due. Duke v. Maness, 2 Tenn. App. 267, 1926 Tenn. App. LEXIS 26 (1926).

69-5-803. Collected assessment a fund for costs and expenses.

When an assessment is collected, it shall constitute a fund for the payment of costs and expenses.

Acts 1915, ch. 63, § 2; Shan., § 3871a65; Code 1932, § 4293; T.C.A. (orig. ed.), § 70-1303; T.C.A. § 69-6-803.

69-5-804. Fund to be paid out under orders.

The amount collected by the trustee shall be paid to the county clerk, upon the order or warrant of the county mayor; and when it has been so paid, the clerk will pay out the amount to the parties entitled, under the order of the county court.

Acts 1915, ch. 63, § 2; Shan., § 3871a66; mod. Code 1932, § 4294; impl. am. Acts 1978, ch. 934, §§ 16, 22, 36; T.C.A. (orig. ed.), § 70-1304; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-804.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-805. Bonds of trustee and county clerk.

The county trustee, before receiving the assessment book, and proceeding to the collection of the assessments, and the clerk, before receiving the funds from the trustee, shall, respectively, enter into a bond, in double the amount that will come into their hands, respectively, payable to the state of Tennessee, and conditioned for the faithful paying over and accounting for the funds arising from the assessment.

Acts 1915, ch. 63, § 2; Shan., § 3871a67; Code 1932, § 4295; T.C.A. (orig. ed.), § 70-1305; T.C.A. § 69-6-805.

69-5-806. Provisions applicable if district contains more than one county.

If the district contains lands that lie in more than one (1) county, then the provision in § 69-5-111 applicable to the county clerk and the trustees shall likewise apply to the county clerk and trustees in the proceeding provided for in §§ 69-5-804 and 69-5-805.

Acts 1915, ch. 63, § 2; Shan., § 3871a68; Code 1932, § 4296; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1306; T.C.A. § 69-6-806.

69-5-807. Appeal from order fixing assessments and benefits.

An appeal may be taken to the circuit court of the county from the order of the county court fixing the assessment of benefits upon the lands in the same manner and time as provided in part 5 of this chapter for appeals from the assessment of damages, including the provisions as to consolidating cases, making transcript, and certifying to the county court the action and doings of the circuit court; provided, that only five (5) days shall be allowed for such appeal.

Acts 1909, ch. 185, § 13; 1913 (1st Ex. Sess.), ch. 25, § 6; Shan., § 3871a69; Code 1932, § 4297; T.C.A. (orig. ed.), § 70-1307; T.C.A. § 69-6-807.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. Appeal from action in assessment of damages, § 69-5-501.

Docketing, consolidation of causes, transcript, § 69-5-507.

Giving bond on appeal from assessment of damages, work not delayed, § 69-5-504.

Trial in circuit court on appeal from assessment of damages, § 69-5-501.

NOTES TO DECISIONS

1. Failure to Appeal.

Landowners failing to appeal from the order confirming report of commissioners, the assessment is not open to later review. S. M. Williamson & Co. v. Shelton, 158 Tenn. 166, 11 S.W.2d 882, 1928 Tenn. LEXIS 137 (1928).

69-5-808. Bond upon appeal.

  1. Any landowner, tenant, or encumbrancer who appeals from an order fixing the assessment of benefits shall execute bond, with security, for costs and damages, and the oath provided by law for poor persons shall not be allowed in lieu of any such bonds.
  2. Such appeal shall not prevent the collection of such assessments being proceeded with, nor stay such collection in any way, if the district or any petitioner for the appeal execute bond, with good security, payable to such appellant, and conditioned to hold such appellant harmless against loss, and to abide by and perform the judgment of the court, if such appeal is successfully prosecuted.
  3. Such bond, if given by the district, may be executed as provided by § 69-5-503; and such bond to hold harmless, may be executed before and accepted by the county clerk at any time after such appeal is perfected by the landowner, tenant, or encumbrancer, and a certified copy of the same shall be sent to the circuit court.

Acts 1913 (1st Ex. Sess.), ch. 25, § 6; Shan., §§ 3871a70-3871a72; Code 1932, §§ 4298-4300; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), §§ 70-1308 — 70-1310; T.C.A. § 69-6-808.

69-5-809. Employment of counsel — Payment of fee.

When any appeal is taken from any order of the county court made in any proceedings before it under this chapter, the county court may employ counsel to represent the interests of the levee or drainage district affected by such appeal, on the trial thereof in the appellate courts, and the expense of such counsel shall be paid out of the drainage fund of such district.

Acts 1909, ch. 185, § 14; Shan., § 3871a73; Code 1932, § 4301; T.C.A. (orig. ed.), § 70-1311; T.C.A. § 69-6-809.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. Attorney's compensation for services, § 69-5-105.

69-5-810. Special maintenance fund.

    1. At any time after the main improvement or improvements in any district have been completed, it shall be made to appear to the county legislative body, by the petition of the board of directors of the district, supported by satisfactory proof, that a special fund is needed for the purpose of maintaining the improvement, or for the purpose of keeping the same effective to give full efficiency to the original purpose for which the district was created, the county legislative body shall have the power to make and collect a special assessment, for the purpose named. The amount, so assessed and collected, shall not be, in any one (1) year, in excess of one dollar ($1.00) per acre on all the lands within the district. Such assessment shall be based upon the apportionment of benefits, as made by the commissioners, and shall be collected at the same time, and in the same manner, as is provided for the collection of assessments in drainage or drainage and levee districts.
    2. The board of directors of the district may petition the county legislative bodies of the counties within a district to make and collect a special assessment. The amount so assessed shall not be, in any one (1) year, in excess of three dollars ($3.00) per acre on all the lands within the district. This petition of the board of directors shall not be effective until it is endorsed and approved by a two-thirds (2/3) vote of each of the county legislative bodies of the counties within a district. The assessment and collection shall otherwise be as provided by law.
  1. Such assessment shall be a lien upon the respective tracts of land upon which it is assessed, but inferior to the lien of the general assessment for the payment of bonds, interest, and administration charges. The lien shall be enforced in the same manner as provided for the enforcement of such liens in drainage, or drainage and levee districts.
  2. The amounts so collected shall be a fund to be used for the purposes named, and shall be paid out for such purposes, on the order or warrant of the county mayor. Before any such payment is made, all accounts or claims for work done for the purposes named shall be approved by the board of directors of the district, by resolution or motion, spread of record on the minutes of the board, and a copy of the minutes presented to the county legislative body, and approved by the county legislative body, and spread of record of that body on the drainage record. The payments in all respects shall be made as now provided by law for the paying out of drainage funds for main improvements.

Acts 1915, ch. 63, § 7; Shan., §§ 3871a154-3871a156; Code 1932, §§ 4389-4391; Acts 1953, ch. 24, § 1; 1976, ch. 701, § 1; impl. am. Acts 1978, ch. 934, §§ 7, 36; Acts 1981, ch. 134, § 1; T.C.A. (orig. ed.), §§ 70-1312—70-1314; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-810.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-811. Unenforceable assessments.

Where any assessments made and levied under this chapter cannot, for any reason, be enforced, and part of the work has been done, the county court shall proceed as to any or all lands benefited by the improvement in the same manner as if the appraisement and apportionment of benefits had never been made, in which event any payments already made shall be duly credited to those who have paid them.

Acts 1909, ch. 185, § 17; Shan., § 3871a76; Code 1932, § 4304; T.C.A. (orig. ed.), § 70-1315; T.C.A. § 69-6-811.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-812. Correction of failure to bring landowner before court or to report land.

After a district is ordered established, if it is found that any parcel of land within its limits has been overlooked, or is not reported for assessment, or it is found that any owner or encumbrancer of any parcel of land has not been properly brought before the court, such mistake or order may be corrected. The county court shall order such parcel of land listed for assessment, and cause the owner thereof, and encumbrancer, if any, to be properly brought before the court by process or publication, and also any other owner or encumbrancer not already before the court. As to any such lands, or parties, the matter shall be proceeded with as if proceeded against in the beginning, and so as to enforce proper and proportional assessments. As to all other parties already before the court, the validity of the proceedings shall not be affected because some of the lands had been overlooked and some of the owners or encumbrances not brought before the court before the district was ordered established.

Acts 1913 (1st Ex. Sess.), ch. 25, § 8; Shan., § 3871a77; Code 1932, § 4305; T.C.A. (orig. ed.), § 70-1316; T.C.A. § 69-6-812.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Textbooks. Tennessee Jurisprudence, 11 Tenn. Juris., Equity, § 21.

69-5-813. Drainage assessment book — Due date of assessments.

The assessments provided to be collected for the purposes provided in this part shall be entered upon a book to be provided by the county clerk, at the expense of the county, for this purpose, in a similar manner to that in which taxes are entered upon the tax books, such books showing the tracts of lands, amounts of assessments, and such book, when so made out, shall be furnished to the county trustee for collection of assessments so levied. Such book shall be called the “drainage assessment book,” and shall be made out by the county clerk of the county in which the particular assessment is levied, and the book may be made out but once, if practicable, for the entire assessment for the particular improvement project; but if not practicable, then a new drainage assessment book may be made out for a shorter period, or for each year, and furnished the county trustee. The assessments levied under this part shall become due and payable and delinquent at the same time state and county taxes become due and delinquent, and such assessments shall bear interest at the legal rate after they become delinquent.

Acts 1909, ch. 185, § 32; Shan., § 3871a122; Code 1932, § 4351; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1317; T.C.A. § 69-6-813.

69-5-814. Vendee to report sale of tract — Collections made accordingly.

When voluntary sales of any property located within any drainage district have been made, it shall be the duty of the vendee of the sales to report the sales to the trustee who shall make the change in the drainage assessment book, and thereafter make the collection or assessments accordingly.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b8; mod. Code 1932, § 4276; T.C.A. (orig. ed.), § 70-1318; T.C.A. § 69-6-814.

Cross-References. Drainage assessment book, § 69-5-813.

69-5-815. Sale of part of tract.

When voluntary sales of a part of any tract so assessed shall be made, it shall be the duty of the vendor to file a petition in the county court of the county in which the cause was instituted, establishing the drainage district against the purchaser, setting out the facts, and the court shall determine what part of the assessment shall be borne by the tract so conveyed and what part by the tract or parcel retained by the vendor, which decree shall be entered on the drainage record book, and certified by the clerk of the county, to the trustee, whose duty it is to collect the assessments, and the trustee shall make the change in the drainage assessment book and thereafter collect the assessments accordingly, and the cost of filing the petition and conducting the proceeding shall be borne equally by the vendor and vendee of such part of land.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b9; Code 1932, § 4277; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1319; T.C.A. § 69-6-815.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. Drainage assessment book, § 69-5-813.

Drainage record book, § 69-5-140.

69-5-816. Sale for collection of assessments certified to clerk and trustee.

If any tract of land is sold, as provided, for the collection of the assessment, the clerk of the court having cognizance of such cause shall certify to the clerk of the county, where the suit establishing the drainage district was instituted, a copy of the decree, and the decree shall be entered on the drainage record book in the office, and filed with the papers in the cause; and the county clerk shall certify this decree to the trustee charged with the collection of the assessments, who shall enter the change of owner and other changes shown in the decree, on the drainage assessment book, and thereafter collect the assessments accordingly.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b10; Code 1932, § 4278; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1320; T.C.A. § 69-6-816.

Cross-References. Drainage assessment book, § 69-5-813.

Drainage record book, § 69-5-140.

69-5-817. Trustee to collect assessments — Notice to delinquents — Penalty.

It is the duty of the trustee to collect the assessments along with other taxes upon the lands, which shall be credited to the account of the drainage district; and it is the duty of the county trustee, within ten (10) days after any drainage tax is delinquent, to give written notice to the party to whom the tract or tracts on which taxes are delinquent is assessed that the tax is delinquent, and that a penalty of ten percent (10%) will accrue on the delinquency as provided in this part. No additional amount shall be taxed against the party assessed to cover any attorney's fees in case of suit brought necessary to collect the taxes; the attorney's fees shall be paid out of the penalty, and shall not in any case exceed the penalty.

Acts 1909, ch. 185, § 32a, as added by Acts 1923, ch. 73, § 2; Shan. Supp., § 3871a122b1; Code 1932, § 4352; T.C.A. (orig. ed.), § 70-1321; T.C.A. § 69-6-817.

Cross-References. Compensation of attorney for services, § 69-5-105.

Compensation of trustee for collecting and paying out assessments and for certified statements, § 69-5-835.

69-5-818. Date assessments become delinquent — Penalty and interest.

The assessment levied under this chapter shall become due and payable, and shall be delinquent at the same time as state and county taxes become due and delinquent. On November 15 after such assessments become delinquent, a penalty of ten percent (10%) of the amount of such assessments shall accrue on the delinquency, and in addition such assessments shall bear interest at the legal rate from the date they are delinquent until paid, to pay the cost of collecting them so as to hold the district harmless.

Acts 1909, ch. 185, § 32a, as added by Acts 1923, ch. 73, § 2; 1925, ch. 93, § 1; Shan. Supp., § 3871a122b2; Code 1932, § 4353; T.C.A. (orig. ed.), § 70-1322; T.C.A. § 69-6-818.

69-5-819. Assessments become liens on lands.

The assessments provided for, when made and levied, shall be and become valid liens upon such lands so assessed as state and county taxes are liens upon lands.

Acts 1909, ch. 185, § 33; Shan., § 3871a123; Code 1932, § 4354; T.C.A. (orig. ed.), § 70-1323; T.C.A. § 69-6-819.

NOTES TO DECISIONS

1. Transfer with Warranty Against Encumbrances.

Where deed contained covenant against encumbrances, but land was subject to special drainage assessment, grantor was obligated to pay installments that were due and payable at time transfer was made, not for installments not due and payable at that time. Duke v. Maness, 2 Tenn. App. 267, 1926 Tenn. App. LEXIS 26 (1926).

69-5-820. Suits in chancery for collection of assessments — Exceptions.

When assessments have been due and delinquent for sixty (60) days, bills may be filed in the chancery court or circuit court of the county, in which the lands lie, upon which such assessments are due and delinquent, for the collection thereof out of such lands by a sale thereof in all cases, except in cases where the assessment is made against a railroad company or a public highway, as provided in § 69-5-313.

Acts 1909, ch. 185, § 33; Shan., § 3871a124; Code 1932, § 4355; Acts 1965, ch. 144, § 1; T.C.A. (orig. ed.), § 70-1324; T.C.A. § 69-6-820.

NOTES TO DECISIONS

1. Construction.

The proceeding to enforce the collection of delinquent drainage assessments by sale of assessed land is purely statutory and the statute must be strictly followed. Patterson v. Gaddy, 28 Tenn. App. 487, 191 S.W.2d 556, 1944 Tenn. App. LEXIS 81 (1944).

Statutes providing for special assessments are in derogation of the common law and therefore to be strictly construed. No requirements of the statute can be disregarded. The prescribed procedure must be strictly pursued. Where this is not done the attempted sale is void. Johnson v. McKinney, 32 Tenn. App. 484, 222 S.W.2d 879, 1948 Tenn. App. LEXIS 130 (1948).

2. Nature of Proceedings.

The proceedings outlined by this section and former § 69-6-821 (now § 69-5-821), for the collection of drainage assessments, are proceedings in rem against the land assessed. Grooms v. Board of Dirs., 167 Tenn. 589, 72 S.W.2d 772, 1934 Tenn. LEXIS 15 (1934).

While there is no personal liability on the part of the owner of land for the payment of drainage assessments, the code provides that this shall be done by bills filed in the chancery court of the county in which the land lies and that they shall be in the name of the county for the use of the improvement district “and against the owners, if known, and if unknown, against them as such,” and moreover, that “such suits in chancery shall be proceeded with as other suits are in such court.” Johnson v. McKinney, 32 Tenn. App. 484, 222 S.W.2d 879, 1948 Tenn. App. LEXIS 130 (1948).

Special assessments are made on the land itself, not on the land owner, and a proceeding to collect delinquent assessments is one in rem. Thus, a description of the land is essential. Weakley County v. Odle, 654 S.W.2d 402, 1983 Tenn. App. LEXIS 586 (Tenn. Ct. App. 1983).

3. Jurisdiction of Chancery Court.

The chancery court does not have jurisdiction to sustain a bill brought for the benefit of bondholders under this and the following section. Such a bill should be brought under former §§ 69-6-929, 69-6-930 (now §§ 69-5-929, 69-5-930). Cooper v. Little, 29 Tenn. App. 685, 201 S.W.2d 210, 1946 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1946).

4. Notice.

Finding of probate court that there was proper notice could not be collaterally attacked in proceeding in chancery by county to collect delinquent drainage assessments. Shelby County v. Anderson, 10 Tenn. App. 437, 1929 Tenn. App. LEXIS 49 (1929).

It is true that the proceedings are in rem. But the owners of the land and if known must nevertheless have notice of the suit and an opportunity to appear and defend it before a valid sale can be made. This notice may be either by service of process or other notice that will afford the owner and the parties in interest an opportunity to put in an appearance and be heard. Johnson v. McKinney, 32 Tenn. App. 484, 222 S.W.2d 879, 1948 Tenn. App. LEXIS 130 (1948).

There is no merit in the contention that if the landowner merely learns from common report in the community that the suit is pending, no more notice is required. Johnson v. McKinney, 32 Tenn. App. 484, 222 S.W.2d 879, 1948 Tenn. App. LEXIS 130 (1948).

5. Benefits.

In suit in chancery by county to collect delinquent drainage district assessments the defendants could not show that their lands were not benefited by improvement district since decree of probate court establishing drainage district was conclusive on question of benefits. Shelby County v. Anderson, 10 Tenn. App. 437, 1929 Tenn. App. LEXIS 49 (1929).

6. Attacking Decree.

Landowners who were made parties to proceedings in county court whereby drainage district was created and assessments made against the owners' land were not entitled to attack the decree of the county court establishing the district in a subsequent proceeding to enforce the liens where they made no attempt at the time of the decree. State v. Wilson, 179 Tenn. 54, 162 S.W.2d 510, 1942 Tenn. LEXIS 6 (1942).

7. Employment of Attorney.

Nowhere in the drainage statute is power conferred on the chairman of the board of directors or on the chairman of the county court (now county mayor) to employ attorney to bring suits for the collection of delinquent assessments. Fayette County ex rel. Loosahatchie River Drainage Dist. v. Graham, 178 Tenn. 54, 156 S.W.2d 379, 1941 Tenn. LEXIS 29 (1941).

69-5-821. Bills in name of county against owners of all assessed lands.

Bills in chancery shall be filed in the name of the county in which the lands are situated for the use of the improvement district for the benefit of which the assessments were made, and against the owners, if known, and, if unknown, against them as such; and the owners of all lands upon which such assessments are delinquent may be made defendants to the same bill as parties to the bill.

Acts 1909, ch. 185, § 33; Shan., § 3871a125; Code 1932, § 4356; T.C.A. (orig. ed.), § 70-1325; T.C.A. § 69-6-821.

NOTES TO DECISIONS

1. Use of Name of State or County.

The owner of drainage district bonds had no standing in court to enforce payment of assessments due the district and could not use the name of the state and county to enforce any right or claim against landowners. State v. Wilson, 179 Tenn. 54, 162 S.W.2d 510, 1942 Tenn. LEXIS 6 (1942).

2. Description of Land.

Special assessments are made on the land itself, not the landowner, and a proceeding to collect delinquent assessments is one in rem. Thus, a description of the land is essential. Weakley County v. Odle, 654 S.W.2d 402, 1983 Tenn. App. LEXIS 586 (Tenn. Ct. App. 1983).

69-5-822. Delinquent list is prima facie evidence.

When it is desired by the board of directors, or other interested party entitled to sue, to file such bill, the county trustee, upon request, shall make out a statement or list, showing all the lands upon which such assessments are so delinquent, and the names of the owners thereof, as appear upon the drainage assessment book or showing any tract or tracts assessed to unknown owners, if such is the case, and certify as trustee to the correctness of such statement or list as it appears upon the book, and in such chancery suit the certified statement or list shall be prima facie proof of the facts so certified to and that such assessments are delinquent, and sufficient proof to authorize a decree of sale in the absence of rebutting proof of the facts shown by the certified statement.

Acts 1909, ch. 185, § 33; Shan., § 3871a126; Code 1932, § 4357; T.C.A. (orig. ed.), § 70-1326; T.C.A. § 69-6-822.

Textbooks. Tennessee Jurisprudence, 10 Tenn. Juris., Drains and Sewers, § 6.

NOTES TO DECISIONS

1. Objection to List as Evidence.

In suit to collect a special assessment, defendant's objection, first made on appeal, that the certified list required by the statute was not prima facie evidence because not properly signed, came too late. Obion County ex rel. Free Bridge Drainage Dist. v. Houser, 9 Tenn. App. 646, 1929 Tenn. App. LEXIS 125 (1929).

2. Description of Land.

Special assessments are made on the land itself, not the land owner, and a proceeding to collect delinquent assessments is one in rem. Thus, a description of the land is essential. Weakley County v. Odle, 654 S.W.2d 402, 1983 Tenn. App. LEXIS 586 (Tenn. Ct. App. 1983).

3. List Sufficient.

Certified list of trustee attached as an exhibit to complaint was sufficient under this section, and such list did not have to be introduced into evidence as proof in the case as except for the trustee's certification, nothing further is needed for authentication of certified statement or list. Weakley County v. Odle, 654 S.W.2d 402, 1983 Tenn. App. LEXIS 586 (Tenn. Ct. App. 1983).

4. List Defective.

List attached as exhibit to complaint, which merely stated the names of the property owners, the years for which the assessments were made, and the amount of the assessments, was defective. Weakley County v. Odle, 654 S.W.2d 402, 1983 Tenn. App. LEXIS 586 (Tenn. Ct. App. 1983).

69-5-823. Chancery procedure — Hearing as to one or more defendants.

Suits in chancery shall be proceeded with as other suits are in the chancery court, except that the court may hear the case as to any one (1) or more of the defendants, whether ready to be heard as to other defendants or not, and so proceed to sale and final decree as to any one (1) or more of the defendants, though the case is not disposed of as to other defendants.

Acts 1909, ch. 185, § 33; Shan., § 3871a127; Code 1932, § 4358; T.C.A. (orig. ed.), § 70-1327; T.C.A. § 69-6-823.

69-5-824. Tax assessment of tracts partly outside district limits.

All tax assessors, in assessing for public taxes any tract of land lying partly within the limits of a drainage district or drainage and levee district and partly outside of the limits of such district, shall assess that part of the tract lying within the limits of such district as one (1) independent tract, and that part of any such tract lying outside of the limits of such district as an independent tract, to the end that it may be definitely known what is the amount of the state and county taxes, and any special school district taxes, assessed against the part of the land within the limits of such district.

Acts 1927, ch. 74, § 1; mod. Code 1932, § 4359; T.C.A. (orig. ed.), § 70-1328; T.C.A. § 69-6-824.

NOTES TO DECISIONS

1. Applicability.

This section is inapplicable to a suit brought in connection with special assessments levied by the county court pursuant to former T.C.A. § 69-7-135 (now § 69-6-135). Weakley County v. Odle, 654 S.W.2d 402, 1983 Tenn. App. LEXIS 586 (Tenn. Ct. App. 1983).

69-5-825. Taxes to be reported and first paid out of proceeds of sales.

When a sale is ordered in a suit pursuant to the preceding sections, and is made and reported, the clerk and master shall report what public taxes are a lien upon any tract so sold in favor of the state, county, or any municipality, and the court shall see that this is done. Any such taxes, if the sale is confirmed, shall be paid out of the proceeds of such sale before such delinquent assessments are paid.

Acts 1909, ch. 185, § 33; Shan., § 3871a128; Code 1932, § 4360; T.C.A. (orig. ed.), § 70-1329; T.C.A. § 69-6-825.

69-5-826. Vestiture of title subject to other assessments — Writ of possession.

Upon confirmation of a sale of land by the chancery court, it shall divest title out of the owner and vest it in the purchaser; provided, that the owner of the land shall continue in possession, and shall be entitled to the rents and profits thereof until the expiration of two (2) years from the date of confirmation, at the expiration of which two (2) years, and not before, the clerk and master may, on application, issue to the purchaser a writ of possession for the land. Where title is so vested in a purchaser or a purchaser's heirs or assigns, the land shall be subject to any other assessments not yet due or unpaid, that may have been fixed or levied upon it at the time of such confirmation of sale, for the benefit of the improvement district on account of which such sale has been made.

Acts 1909, ch. 185, § 33; Shan., § 3871a129; Acts 1929, ch. 73, § 1; Code 1932, § 4361; T.C.A. (orig. ed.), § 70-1330; T.C.A. § 69-6-826.

NOTES TO DECISIONS

1. Estoppel on Redemption.

Where purchaser of property sold to satisfy drainage assessments made improvements on strength of owner's representations that he did not wish to redeem, the owner was estopped to claim title notwithstanding that defect in title was matter of record, and regardless of validity of order of sale. Fowler v. Tankersley, 32 Tenn. App. 264, 222 S.W.2d 395, 1946 Tenn. App. LEXIS 114 (1946).

69-5-827. Sales for cash subject to redemption — Time and terms of redemption — Title and possession.

When any sale pursuant to the preceding sections has been made by decree of the chancery court, it shall be made for cash, and the owners of lands so sold shall have two (2) years from the date of the confirmation of such sale in which to redeem the same by paying to the clerk and master of such court making the sale the amount paid by the purchaser of the land, with legal interest on the amount paid, to the date of redemption, and also a further sum equal to ten percent (10%) of the amount so paid by the purchaser for the land; provided, that if the owner elects to, and does, within twelve (12) months after such confirmation of sale, pay into the hands of the clerk and master one fifth (1/5) of the amount paid by the purchaser for the land together with one fifth (1/5) of the penalty of ten percent (10%) and interest as above provided, and thereafter pays one fifth (1/5) of such amounts annually, the owner's equity of redemption shall not expire until five (5) years from the date of the confirmation of sale, and no writ of possession shall issue as long as the payments are being made, and the owner shall enjoy the rents and profits. If the amount of the purchase price of the land, together with the penalty of ten percent (10%) and interest at the legal rate, be paid within five (5) years in the manner above provided, the decree of confirmation shall be of no effect, and the title to the land shall be divested out of the purchaser and vested in the owner and the owner's heirs and assigns; provided, that the original owner shall have possession for agricultural, and all other purposes, except the removal of timber, during the time allowed for redemption; and provided further, that all decrees of confirmation entered after April 9, 1929, regardless of when the sale has been had or may be had, shall be made subject to these rights of redemption and of possession, and shall recite the same in the decree. But any purchaser at a sale made previous to April 9, 1929, may, on application to the court, be released from the bid.

Acts 1909, ch. 185, § 33; Shan., § 3871a130; Acts 1929, ch. 73, § 1; mod. Code 1932, § 4362; T.C.A. (orig. ed.), § 70-1331; T.C.A. § 69-6-827.

NOTES TO DECISIONS

1. Sale Must Be for Cash.

Under this section the chancellor could not lawfully have ordered a sale for anything except cash, and it necessarily follows that he had no power or authority to confirm a sale for anything but cash and no power or authority to divest and vest title upon any other form of consideration. The fact that he had jurisdiction of the subject matter and of the parties, or at least one of them, does not save the situation with respect to either. A sale for anything but cash was absolutely void. Johnson v. McKinney, 32 Tenn. App. 484, 222 S.W.2d 879, 1948 Tenn. App. LEXIS 130 (1948).

2. Period of Redemption.

Acts 1929, ch. 73, § 1 amending Acts 1909, ch. 185, § 33 increasing period of redemption by owner of land from two years until five years under certain circumstances did not apply to sale of land under proceeding instituted prior to date of amending act, but where it appeared that bondholders were not adversely affected by the application of the 1929 Act the error was immaterial. Lake County v. Morris, 160 Tenn. 619, 28 S.W.2d 351, 1930 Tenn. LEXIS 146 (1930).

3. Who Has Right of Redemption.

Construing this section and former § 69-6-829 (now § 69-5-829) together, as, of course, they must be, it is evident that the right of redemption is conferred upon the owner, his heirs or assigns. Weakley County ex rel. C.H. Little & Co. v. Pryor, 177 Tenn. 490, 151 S.W.2d 161, 1941 Tenn. LEXIS 19 (1941).

4. Mortgagee Redeeming.

Under this section mortgagee was entitled to redeem property sold for delinquent assessments. Weakley County ex rel. C.H. Little & Co. v. Pryor, 177 Tenn. 490, 151 S.W.2d 161, 1941 Tenn. LEXIS 19 (1941).

5. “Owner” Includes Mortgagee.

The word “owner” as used in this section, embraces a mortgagee. Weakley County ex rel. C.H. Little & Co. v. Pryor, 177 Tenn. 490, 151 S.W.2d 161, 1941 Tenn. LEXIS 19 (1941).

6. Disposition of Ten Percent Penalty.

The 10 percent is in the nature of a penalty and was intended to be for the benefit of the drainage district, and not for the benefit of the purchaser or redeemer, or the owner who defaulted in the payment of the assessments. Weakley County ex rel. C.H. Little & Co. v. Pryor, 177 Tenn. 490, 151 S.W.2d 161, 1941 Tenn. LEXIS 19 (1941).

7. Estoppel.

Where purchaser of property sold to satisfy drainage assessments made improvements on strength of owner's representations that he did not wish to redeem, the owner was estopped to claim title notwithstanding that defect in title was matter of record, and regardless of validity of order of sale. Fowler v. Tankersley, 32 Tenn. App. 264, 222 S.W.2d 395, 1946 Tenn. App. LEXIS 114 (1946).

69-5-828. Attorney's fee fixed and charged on land.

In proceedings in chancery court pursuant to this part, the attorney or solicitor employed and attending to the suit shall be allowed as a fee ten percent (10%) of the amount found due as an assessment or assessments on each tract of land decreed sold, which fee shall be charged up in the decree as part of the judgment for which the land is to be sold.

Acts 1909, ch. 185, § 33; Shan., § 3871a131; Code 1932, § 4363; T.C.A. (orig. ed.), § 70-1332; T.C.A. § 69-6-828.

Cross-References. Compensation for services, § 69-5-105.

69-5-829. Decree upon redemption — Writ of possession.

When such lands are redeemed, and this fact is made satisfactorily to appear to the chancery court, the court shall enter a decree in the cause, adjudging the land so redeemed and declaring it to be the property of the owner so redeeming, or of the owner's heirs or assigns, if redeemed by the owner's heirs or assigns; and if necessary may award a writ of possession to put the person so redeeming in possession of the land.

Acts 1909, ch. 185, § 33; Shan., § 3871a132; Code 1932, § 4364; T.C.A. (orig. ed.), § 70-1333; T.C.A. § 69-6-829.

NOTES TO DECISIONS

1. Construction.

This section and former § 69-6-827 (now § 69-5-827) must be construed together. Weakley County ex rel. C.H. Little & Co. v. Pryor, 177 Tenn. 490, 151 S.W.2d 161, 1941 Tenn. LEXIS 19 (1941).

69-5-830. Redemption after restoration of competency.

Infants and persons adjudicated incompetent have the further period of one (1) year after the restoration of competency in which to redeem their lands sold under §§ 69-5-81969-5-829 and other sections of this chapter, under like terms as to amounts to be paid, in redemption, as provided in this part.

Acts 1909, ch. 185, § 33; Shan., § 3871a133; Code 1932, § 4365; T.C.A. (orig. ed.), § 70-1334; T.C.A. § 69-6-830; Acts 2011, ch. 47, § 94.

Compiler's Notes. Acts 2011, ch. 47, § 107 provided that nothing in the legislation shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of this legislation, which was July 1, 2011.

Acts 2011, ch. 47, § 108 provided that the provisions of the act are declared to be remedial in nature and all provisions of the act shall be liberally construed to effectuate its purposes.

69-5-831. Proceedings in accordance with chancery procedure.

All proceedings referred to in part 4 of this chapter and authorized to correct errors, or to prorate assessments, when parts of any tract of land have been sold at voluntary sale as provided in § 69-5-815, or when any of the lands encumbered with such assessments have been sold, for the collection of the assessments, as the result of the proceedings authorized by this part, whether in the county court or the chancery court, shall be conducted according to the rules of chancery proceedings.

Acts 1921, ch. 144, § 1; Shan. Supp., § 3871a51b11; mod. Code 1932, § 4279; T.C.A. (orig. ed.), § 70-1335; T.C.A. § 69-6-831.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-832. Assessments collectible out of assessed lands only.

The assessments shall, if not paid by the owners of the land assessed, be collected only out of the land so assessed for improvement purposes, and shall not be collected, by distress warrant or otherwise, out of any other property, real or personal, of the owners of the land so assessed.

Acts 1909, ch. 185, § 34; Shan., § 3871a135; Code 1932, § 4367; T.C.A. (orig. ed.), § 70-1336; T.C.A. § 69-6-832.

NOTES TO DECISIONS

1. Scope of Judgments.

Judgments against individual landowners are limited to assessments against the land of each particular individual within the drainage district, and such judgment can be enforced against no other property of the individual than such land. First Nat'l Bank v. Obion County, 3 F.2d 623, 1924 U.S. Dist. LEXIS 1277 (D. Tenn. 1924).

69-5-833. Excessive assessments of acreage — Correction.

When it appears that any tract of land within any drainage district has been assessed with fifteen percent (15%) or more excess acreage, the owner of any such tract of land may by bill filed against the district and directors have the mistake corrected and the assessment changed, and the chancery court shall in the decree correcting the mistake determine whether it is necessary for the district to levy a special assessment to meet the deficiency caused by the correction of the mistake. If a special assessment is needed, the chancery court shall determine its amount, and the directors are authorized to, and shall, as soon as any such cause is determined, proceed to levy such special assessment, and it shall be spread upon the tax books and collected as other assessments.

Acts 1909, ch. 185, § 33a, as added by Acts 1923, ch. 73, § 1; Shan. Supp., § 3871a133b1; mod. Code 1932, § 4368; T.C.A. (orig. ed.), § 70-1337; T.C.A. § 69-6-833.

69-5-834. Fiscal agent — Purchase by district of lands sold for delinquency.

To assist in the keeping of the tax books, the collection of taxes, the remitting of funds to pay maturing bonds and coupons, and to be of such other service in the general management of the affairs of the district as may be determined, the board of drainage directors has authority to appoint a fiscal agent of such district. Any drainage district may purchase any lands sold within the district to pay the delinquent assessment on the lands, if the board of directors deems it advisable to do so, and the board of directors may sell such land so bought and make a good deed to the land.

Acts 1909, ch. 185, § 40a, as added by Acts 1923, ch. 73, § 4; Shan. Supp., § 3871a159b1; Code 1932, § 4395; T.C.A. (orig. ed.), § 70-1338; T.C.A. § 69-6-834.

69-5-835. County trustee's compensation.

For collecting and paying out the assessments under this chapter, the county trustee shall receive as compensation two percent (2%) on all amounts paid out by the trustee, and for any certified statements furnished by the trustee, the same fees per one hundred (100) words as are allowed clerks of courts for certified copies of records.

Acts 1909, ch. 185, § 36; 1913 (1st Ex. Sess.), ch. 25, § 12; Shan., § 3871a139; Code 1932, § 4374; T.C.A. (orig. ed.), § 70-1339; T.C.A. § 69-6-835.

Cross-References. Clerks of court, fees charged, title 8, ch. 21, part 4.

69-5-836. Bond of county trustee.

The bonds of the county trustee binding the trustee to account for state and county taxes shall be liable for assessments collected under this chapter.

Acts 1913 (1st Ex. Sess.), ch. 25, § 10; Shan., § 3871a114; Code 1932, § 4342; T.C.A. (orig. ed.), § 70-1340; T.C.A. § 69-6-836.

Part 9
Bond Issues and Warrants

69-5-901. County may issue and sell drainage bonds.

If the county legislative body determines that the estimated cost of reclamation and improvement of the district of land or levee or drainage district is greater than should be levied in a single year upon the lands benefited, it may fix the amount that shall be levied and collected each year, and may issue drainage bonds of the county, bearing interest payable semiannually, and may devote such bonds at par, with accrued interest, to the payment of the expenses and work as it progresses, or may sell the bonds at not less than par, with accrued interest, and devote the proceeds to such payment, and if, in the sale of the bonds, a premium is received, such premium shall be credited to the drainage fund. If the cost of such work exceeds the estimate, a new apportionment of the assessment may be made and levied and other bonds issued and sold in like manner, but in no case shall the bonds run longer than twenty (20) years.

Acts 1909, ch. 185, § 27; Shan., § 3871a107; Acts 1919, ch. 145, § 1; Code 1932, § 4335; Acts 1980, ch. 601, § 24; T.C.A. (orig. ed.), § 70-1401; T.C.A. § 69-6-901.

Cross-References. Maximum effective rates of interest, § 47-14-103.

NOTES TO DECISIONS

1. Assessment for What Purposes.

A drainage district has the power to make assessment for repairs, for extension work, and maintenance. Grooms v. Board of Dirs., 167 Tenn. 589, 72 S.W.2d 772, 1934 Tenn. LEXIS 15 (1934).

2. Nature of Bonds.

Bonds issued under this law are not general obligations of the county, and the officials are without power to make them such. Purchasers of bonds take with notice accordingly. First Nat'l Bank v. Obion County, 3 F.2d 623, 1924 U.S. Dist. LEXIS 1277 (D. Tenn. 1924).

69-5-902. Payment of assessments before issuance of bonds.

Any property owner may pay the full amount of the benefit assessed against that person's property before the bonds are issued and receive a receipt in full for that amount. Such payment shall be made to the county trustee; it is the duty of the county clerk to certify to the trustee the amount of any such assessment when requested to do so, and the trustee shall enter the amount upon the assessment lists in the trustee's hands in a separate place provided for the assessment, and shall furnish the clerk with duplicate receipts given for all assessments so paid in full, one (1) of which the clerk shall deliver to the county mayor. The trustee shall also give a receipt to the property owner so paying in full.

Acts 1909, ch. 185, § 27; Shan., § 3871a108; Code 1932, § 4336; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-1402; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-902.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

NOTES TO DECISIONS

1. Mode of Payment.

A landowner may, under this section, pay the assessment in full or at his option pay it according to installments fixed by order of the county. Hughes v. Herbert, 159 Tenn. 187, 17 S.W.2d 16, 1928 Tenn. LEXIS 74 (1929).

69-5-903. Terms of bonds — Signing — District to be indicated.

The terms and times of payment of the bonds so issued shall be fixed by the board of directors of the improvement district, and such bonds shall be signed by the county mayor and countersigned by the clerk of the county, each of the officers signing officially, and shall be verified either by the county seal or seal of the county clerk. Such bonds shall be issued for the benefit of the district numbered on the bonds, and each district shall be numbered by the county court and recorded by the county clerk in the drainage record, the record showing specifically the lands embraced in that district and upon which the assessment has not been previously paid in full.

Acts 1909, ch. 185, § 27; Shan., § 3871a109; Code 1932, § 4337; impl. am. Acts 1978, ch. 934, §§ 16, 22, 36; T.C.A. (orig. ed.), § 70-1403; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-903.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Acts 2003, ch. 90, § 2,  directed the code  commission to change  all references from  “county executive” to county mayor” and to  include all such changes  in supplements and  replacement volumes for  the Tennessee Code  Annotated.

69-5-904. Bonds a charge on land in district only.

Each bond shall show expressly upon its face that it is to be paid only by assessments levied and collected on the lands within the district so designated and numbered, and for the benefit of which district such bond is issued. No assessment shall be levied or collected for the payment of such bond or bonds, or the interest on the bond or bonds, on any property, real or personal, outside the district so numbered, designated, and benefited.

Acts 1909, ch. 185, § 27; Shan., § 3871a110; Code 1932, § 4338; T.C.A. (orig. ed.), § 70-1404; T.C.A. § 69-6-904.

NOTES TO DECISIONS

1. District and Landowners Liability.

A bondholder is entitled to judgment on the bonds held by him for the amount of delinquency, with interest thereon and attorney's fees, against the drainage district and against delinquent individual landowners to the amount of the assessment against the particular tract of land within the district. First Nat'l Bank v. Obion County, 3 F.2d 623, 1924 U.S. Dist. LEXIS 1277 (D. Tenn. 1924).

2. Liability of County.

A county is not liable for the payment of bonds issued under this law. First Nat'l Bank v. Obion County, 3 F.2d 623, 1924 U.S. Dist. LEXIS 1277 (D. Tenn. 1924).

69-5-905. Denominations of bonds.

The bonds shall be in denominations of not less than fifty dollars ($50.00).

Acts 1909, ch. 185, § 27; Shan., § 3871a111; Code 1932, § 4339; T.C.A. (orig. ed.), § 70-1405; T.C.A. § 69-6-905.

69-5-906. Multi-county districts — Issuance and payment of bonds.

When a district lies in more than one (1) county, the county court of each county shall so determine whether bonds shall be issued to meet the expenses, of the improvement so far as the lands of the district lie in that county; and, if so issued, the bonds shall be signed by the county mayor of such county, and countersigned by the county clerk, and verified by the county seal or seal of the county clerk, and shall be payable only out of the assessments levied for such improvement on the lands in such county, as provided by this part when such district is wholly in one (1) county.

Acts 1909, ch. 185, § 27; Shan., § 3871a112; Code 1932, § 4340; impl. am. Acts 1978, ch. 934, §§ 16, 22, 36; T.C.A. (orig. ed.), § 70-1406; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-906.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-907. Payment in installments — Bond to secure installments.

In the sale of drainage bonds, the directors of the district, if in their judgment it is expedient, may contract with the purchasers of the bonds that the payment for the bonds may be made in such installments as may be agreed upon between them and the purchasers of the bonds; provided, that the payments of the installments agreed upon, as they mature, are amply secured by safe and solvent bond, made in double the amount of the entire deferred installments, payable to the state of Tennessee, for the use and benefit of the district and those entitled, and conditioned for the faithful payment of the installments, such bond to be approved by the unanimous vote of the board of directors of the district before the bond is accepted. The bond and a copy of the resolution of the board of directors approving them shall, on the order of the county court, be spread of record on the drainage record book, and the approval of the board of directors noted on the bond by the secretary of the board writing the word “approval” and signing “board of directors” by the secretary as secretary, or other equivalent words.

Acts 1913 (1st Ex. Sess.), ch. 25, § 10; Shan., § 3871a113; Code 1932, § 4341; T.C.A. (orig. ed.), § 70-1407; T.C.A. § 69-6-907.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. Drainage record book, § 69-5-140.

69-5-908. Bond of county trustee.

Whenever bonds of such districts are issued and sold under this chapter, or long-time warrants, as provided for by § 69-5-909, are issued and sold, then the county trustee, before receiving such money, shall give bond, to be approved as the trustee's other bonds are approved in double the amount of the money to go into the trustee's hands from the sale of such bonds, or warrants, payable to the state, and conditioned that the trustee faithfully account for all such money; and if the trustee fails to execute such bond, it shall be a misdemeanor in office, for which the trustee may be removed from office; and such bond shall be recorded in the drainage record book, and the original filed with and preserved by the county clerk.

Acts 1913 (1st Ex. Sess.), ch. 25, § 10; Shan., § 3871a114; Code 1932, § 4342; T.C.A. (orig. ed.), § 70-1408; T.C.A. § 69-6-908.

Compiler's Notes. The misdemeanor provisions in this section may have been affected by the Criminal Sentencing Reform Act of 1989. See §§ 39-11-114, 40-35-110, 40-35-111.

Cross-References. Drainage record book, § 69-5-140.

Penalty for misdemeanors, §§ 39-11-114, 40-35-111.

69-5-909. Warrants issued instead of bonds.

If the board of directors of any improvement district deems best, instead of issuing bonds, it may direct that warrants shall be issued or drawn on such district, or on the county trustee, by the county mayor, to be paid out of the funds of such district only, and at such times as the assessments may be due, or as may be deemed best, the time of the maturity of assessments as fixed being considered, such warrants to be issued or drawn for all lawful demands on such district, and to bear interest at not more than six percent (6%) per annum.

Acts 1909, ch. 185, § 28; Shan., § 3871a115; Code 1932, § 4343; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-1409; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-909.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-910. Surplus funds from sale of bonds or warrants.

When, in the making of any improvement in a district, bonds or warrants of such districts are sold for the purpose of providing funds for such improvement, any money is left from the proceeds of the sale after the improvement has been paid for, then in such cases the board of directors of such drainage district or drainage and levee district, with the approval of the county court of the county having jurisdiction of the cause, has the power to dispose of such surplus money by using such surplus funds for improving, if needed, the main improvement of the district, or for opening, making or improving such lateral drains or ditches in the district as may be deemed best, or such surplus funds and money may be used in paying all or in part any assessment made on the lands of the district and not yet collected, in which event such particular assessment, or part thereof, need not be collected. Alternately, such surplus of funds may be used in purchasing and retiring any of the bonds or warrants issued; provided, that they can be bought at not above par with any accrued interest on the bonds or warrants. The board of directors with the approval of the county court has the power to dispose of such surplus funds in any of the methods above set out that they and the court may deem best for such district, the court to concur, by its order or decree, in such disposition.

Acts 1917, ch. 26, § 1; Shan., § 3871a115½; Code 1932, § 4344; T.C.A. (orig. ed.), § 70-1410; T.C.A. § 69-6-910.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-911. Prepayment of deferred installments.

Any landowner owning land, upon which there now exists special assessments levied by any drainage district organized under the laws of this state, has the option, upon any date upon which the landowner pays such special assessments, to pay all or any part of the unmatured amount assessed against the tract or tracts of land owned by the landowner; provided, that no rebate or reduction shall be made for unearned interest upon such assessments.

Acts 1933, ch. 132, § 1; mod. C. Supp. 1950, § 4292.1; T.C.A. (orig. ed.), § 70-1411; T.C.A. § 69-6-911.

69-5-912. Payment of assessments with bonds or coupons.

The bonds and/or interest coupons of the drainage district levying the assessment may be lawfully tendered to the trustee of the county in which the land lies by the person desiring to make such payments, and it is the duty of such trustee, to whom tender is made, to receive such bonds or coupons, or both, regardless of the date of maturity of such bonds or coupons, or both; to receive such bonds or coupons, or both, without deduction for maintenance, at par or face value, excluding interest upon past due coupons. Such payment, when so made, shall be as valid and complete a payment as though payment of such assessments had been made in cash. The trustee to whom payment is made may, at the trustee's option, require the commissions due and owing to the trustee by virtue of the trustee's collection of such assessments to be paid in cash instead of by bonds; but, where collection is made by a county trustee, other than by the trustee of the county where the district originates, then only one (1) trustee's fee can be collected and that fee must be paid to the trustee collecting the assessment. In cases where the coupons or bonds, or both, tendered by such person desiring to pay such taxes shall exceed in amount the assessments against such tract of land that the landowner is desirous of paying, the county trustee shall take into possession all of the coupons or bonds, or both, so tendered and, after computing the difference between the balance upon all such coupons or bonds, or both, and the assessment that it is proposed to pay, shall issue to the party paying such assessment a transferable credit memorandum, which credit memorandum may be used by such landowner or such landowner's assigns, in payment of any other drainage assessment due to the district in which payment is made.

Acts 1933, ch. 132, § 2; C. Supp. 1950, § 4292.2; T.C.A. (orig. ed.), § 70-1412; T.C.A. § 69-6-912.

69-5-913. Cancellation of bonds given to pay assessments — Interest coupons — Suits to collect taxes.

  1. Upon receipt of such coupons or bonds, or both, it is the duty of the county trustee to cancel them as now provided by law and to provide a record of such cancellation. If bonds tendered for payment contain interest coupons falling due beyond the date of maturity of the assessments that it is proposed to pay, then and in that event the county trustee shall not be required to receive such interest coupons in payment of these taxes. This does not apply, however, where both the assessment and coupons are past due; in this case, any past due coupons can be used to pay any or all assessments regardless of their due date.
  2. Sections 69-5-911 — 69-5-914 do not apply where suits have been brought to collect taxes that are delinquent unless and until the costs and attorney's fees, if any, are paid into court or any other office where the case or cases are pending; such collection made with coupons or bonds, or both, must in turn be accepted by the county trustee in full settlement of the tax paid.

Acts 1933, ch. 132, § 3; C. Supp. 1950, § 4292.3; T.C.A. (orig. ed.), § 70-1413; T.C.A. § 69-6-913.

69-5-914. Multi-county districts — Payment by bond or coupon.

Where a drainage district is situated in more than one (1) county, it is the duty of the trustee of any county in which such district lies to accept coupons or bonds, or both, issued by such district in settlement of assessments levied against lands embraced in that portion of the district located in the trustee's county. It is lawful for any coupons or bonds, or both, so accepted in payment of assessments to be used by the trustee of any county in making a full settlement with the trustee of the county in which the district originated, such accounting in coupons or bonds, or both, to be considered and handled in all respects as a cash transaction.

Acts 1933, ch. 132, § 4; C. Supp. 1950, § 4292.4; T.C.A. (orig. ed.), § 70-1414; T.C.A. § 69-6-914.

69-5-915. Single county districts — Monthly settlements by trustees.

The county trustee of any county in which a drainage district has been organized under the laws of this state shall make monthly settlement with the county mayor of the county in which the district was organized, showing the drainage assessments collected during the month, giving date collected, tract number, name of owner, for what years assessments are paid, amount of assessments, interest and penalty, amount paid in cash, amount paid in bonds, coupons, or credit memorandums, and amount of credit memorandums issued during the month and still outstanding and to whom issued. The settlement shall also show what bonds, coupons or credit memorandums were received during the month in settlement of assessments and the date same were cancelled by the trustee. The settlement shall be filed with the county mayor as provided in this section, together with all cancelled bonds, coupons and credit memorandums, taking the county mayor's receipt for the settlement and, when approved by the county mayor, shall be copied on the drainage record book in the county clerk's office.

Acts 1935, ch. 159, § 1; C. Supp. 1950, § 4292.5 (Williams, § 4244.1); impl. am. Acts 1978, ch. 934, §§ 16, 22, 36; T.C.A. (orig. ed.), § 70-1415; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-915.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Cross-References. Drainage record book, § 69-5-140.

69-5-916. Multi-county districts — Monthly settlements by trustees.

Where a drainage district is situated in more than one (1) county, it is the duty of the trustee of any county in which such district lies to make monthly settlement with the county mayor of the county in which the district was organized, as provided by § 69-5-915; provided, that all cash collections shall be paid to the trustee of the county in which the district was organized to be placed to the credit of the drainage district as now provided by law.

Acts 1935, ch. 159, § 2; C. Supp. 1950, § 4292.6 (Williams, § 4244.2); impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-1416; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-916.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-917. Disposition of receipts — Maintenance or administration certificates.

After each monthly settlement has been filed and approved as provided in §§ 69-5-915 and 69-5-916, the board of directors of the drainage district shall ascertain what part or portion of the money, bonds, coupons, or credit memorandums were received for the preceding month, or prior to that time, on the maintenance or administration assessments, or both, and when so ascertained it shall certify the amount thereof to the county mayor, and the county legislative body is hereby given jurisdiction and authority, upon application of the board of directors, to make such disposition thereof as may seem just and equitable for the benefit and protection of the district and bondholders. The county legislative body may authorize the directors to issue and sell transferable maintenance or administration certificates, or both, against that portion or part of the bonds, coupons or credit memorandums belonging to the maintenance or administration fund as so ascertained by the directors and reported to the county mayor. The certificates, when so authorized, issued and sold, may be tendered to the trustee in settlement of drainage assessments of the district, and it is the duty of the trustee, to whom tender is made, to receive such certificates at face value in the same manner as now provided by law for paying assessments with coupons or bonds, or both.

Acts 1935, ch. 159, § 3; C. Supp. 1950,§ 4292.7 (Williams, § 4244.3); impl. am. Acts 1978, ch. 934, §§ 7, 16, 36; T.C.A. (orig. ed.), § 70-1417; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-917.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-918. Lien of maintenance or administration certificates.

The maintenance or administration certificates, or both, when issued as provided in this part, shall constitute the same lien on the lands in the district, upon which assessments remain unpaid, as the unpaid coupons and bonds, and may be enforced in the same manner as now provided by law for enforcement of the lien of the coupons or bonds, or both.

Acts 1935, ch. 159, § 4; C. Supp. 1950, § 4292.8 (Williams, § 4244.4); T.C.A. (orig. ed.), § 70-1418; T.C.A. § 69-6-918.

69-5-919. Proceeds from sale of maintenance or administration certificates.

All funds received from sale of the maintenance or administration certificates, or both, shall be paid to the trustee and placed to the credit of the maintenance and administration fund, to be paid out on warrants as now provided by law.

Acts 1935, ch. 159, § 5; C. Supp. 1950, § 4292.9 (Williams, § 4244.5); T.C.A. (orig. ed.), § 70-1419; T.C.A. § 69-6-919.

69-5-920. Refunding bonds authorized — Terms.

For the general purpose of refunding all or any part of the bonded indebtedness, now or hereafter outstanding, of any drainage or levee district now or hereafter organized and existing under any law of this state, whenever in the judgment of the county legislative body of the county in which any such district was organized, it is advisable and for the best interest of the landowners of any such district, or whenever such district is or hereafter shall become unable to pay all or any part of the principal and interest or either the principal or interest of or on its outstanding bonded indebtedness, the county legislative body may issue refunding bonds of such district in an amount that shall not exceed in the aggregate the amount of bonds to be refunded, and the accrued interest on the bonds. Such refunding bonds shall be of such denomination or denominations, shall mature at such time or times, not exceeding forty (40) years from their date, and in such manner, amount or amounts, shall be payable at such place or places, and shall bear such rate of interest payable annually or semiannually as the county legislative body may determine. Such refunding bonds may be exchanged for the bonds to be refunded upon consent of the holders of the bonds, or may be sold at such price and in such manner as the county legislative body may determine. Any expense resulting from the sale or issuance of such refunding bonds may be paid out of any available funds of the district. If the outstanding bonds have not matured, they may be refunded only with the consent of the holder or holders of the bonds, which consent shall be sufficiently evidenced by the surrender of the bonds to be refunded. Such refunding bonds shall be signed by the county mayor and countersigned by the county clerk, under the seal of the county or the seal of such clerk, and the interest coupons attached to the bonds shall be executed by the lithographed facsimile signature of the officials.

Acts 1935, ch. 51, § 1; C. Supp. 1950, § 4341.1; impl. am. Acts 1978, ch. 934, §§ 7, 16, 22, 36; Acts 1980, ch. 601, § 25; T.C.A. (orig. ed.), § 70-1420; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-920.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

Cross-References. Maximum effective rates of interest, § 47-14-103.

69-5-921. Petition for issuance of refunding bonds.

The county legislative body has the authority to issue refunding bonds as provided for in this part, upon the filing with the county legislative body of a petition duly authorized and signed by the board of directors of the district whose outstanding bonds are desired to be refunded. The petition, among other appropriate recitals, shall set forth a description of the outstanding bonds proposed to be refunded, the reason for such refunding, whether or not the holders of the outstanding bonds have consented to the refunding of the bonds, the amount of refunding bonds proposed to be issued, including the proposed date or dates when such refunding bonds are to mature. The petition shall request the county legislative body, upon the giving of the notice and upon the holding of the hearing provided for in § 69-5-924, to direct the issuance of such refunding bonds and to provide for the levy of taxes for the payment of the refunding bonds and the interest on the refunding bonds.

Acts 1935, ch. 51, § 2; 1935, ch. 78, § 1; C. Supp. 1950, § 4341.2; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-1421; T.C.A. § 69-6-921.

69-5-922. Refunding bonds — Notice of hearing.

Upon the filing of a petition as for issuance of refunding bonds, it is the duty of the county legislative body to set a date for the hearing of such petition and to direct the county clerk to cause to be published a notice in substantially the following form:

To all persons or corporations interested in lands or other property lying in  District,  County, Tennessee, take notice: That the aforementioned district, acting through its board of directors, has filed with the county legislative body of  County, Tennessee, a petition requesting the county legislative body to provide for the refunding of the outstanding bonded indebtedness of such district, and that any person or corporation owning or having any interest in any land or property in the district may appear before the county legislative body at the court house in  , Tennessee, at the hour of  o'clock,  M., on  the  day of  20 , and show cause why such bonds should not be refunded.

You are further notified that in the event the county legislative body, pursuant to the hearing, should enter an order, providing for the issuance of refunding bonds, any landowner shall have the right at any time within two (2) weeks from and after the entering of such order within which to pay the full amount of the principal tax or assessment chargeable to such landowner's land or any tract thereof, for the payment of the bonds proposed to be refunded, and any tract on which such tax or assessment shall be so paid shall thereupon be released from any tax or assessment for the payment of the refunding bonds so authorized to be issued, but shall remain subject to such other or additional taxes, if any, as may be levied pursuant to law. Take notice also that in the event a remonstrance or remonstrances against the issuance of refunding bonds be filed with the county legislative body on or prior to the date hereinabove set forth, signed by sixty percent (60%) or more of the landowners owning sixty percent (60%) or more of the aggregate acreage of lands within the district, then the county legislative body shall enter an order denying and dismissing the petition of the board of directors above referred to.

By order of the county legislative body of  County, Tennessee, this  day of  , 20

County Clerk

Such notice shall be published weekly for at least two (2) consecutive weeks in some newspaper published in the county and having a general circulation in the district, and the first of such publications shall occur at least ten (10) days prior to the date set for such hearing, and the last of such publications shall occur not more than seven (7) days prior to such date. A copy of such notice shall also be posted in a conspicuous place at the court house of the county where the hearing is to be held at least ten (10) days prior to the date set for such hearing.

Acts 1935, ch. 51, § 3; 1935, ch. 78, § 2; C. Supp. 1950, § 4341.3; impl. am. Acts 1978, ch. 934, §§ 7, 22, 36; T.C.A. (orig. ed.), § 70-1422; T.C.A. § 69-6-922.

69-5-923. Refunding bonds — Petition and notice in multi-county districts.

Where a district lies in more than one (1) county, the petition for issuance of refunding bonds shall be filed with the county legislative body of the county where the greater part of the lands of the district are situated, which the legislative body shall have full jurisdiction for the purposes of §§ 69-5-92069-5-927. The notice provided for in § 69-5-922 shall, in such case, be published in one (1) newspaper published and having general circulation in each county where lands of the district are situated, and also by the posting of a copy of such notice in a conspicuous place at each court house in each such county. In the event there should be no newspaper published and of general circulation in any such county, then the aforementioned notice shall be given by posting not less than five (5) copies of the notice in five (5) public places in such county, and by posting at the court house as provided in this section.

Acts 1935, ch. 51, § 4; C. Supp. 1950, § 4341.4; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-1423; T.C.A. § 69-6-923.

69-5-924. Hearing — Remonstrance.

At the time of the hearing provided for in § 69-5-922, the county legislative body shall hear and dispose of all objections in a summary manner and its disposition of the objections shall be final and conclusive on all parties. In the event a remonstrance or remonstrances against the issuance of refunding bonds be filed with the county legislative body on or prior to the date set for such hearing, signed by sixty percent (60%) or more of the landowners owning sixty percent (60%) or more of the aggregate acreage of land within the district, then the county legislative body shall enter an order denying and dismissing the petition of the board of directors for the issuance of refunding bonds.

Acts 1935, ch. 51, § 5; 1935, ch. 78, § 3; C. Supp. 1950, § 4341.5; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-1424; T.C.A. § 69-6-924.

69-5-925. Refunding bonds — Release of landowner from assessment.

Upon the entry by the county legislative body of an order providing for the issuance of refunding bonds of any such district, any landowner in the district shall have the right at any time within two (2) weeks from and after the entry of such order, within which to pay the full amount of the principal tax or assessment chargeable to that landowner's land or any tract of the landowner's land, for the payment of the bonds proposed to be refunded, and any tract on which such tax or assessment shall be so paid shall thereupon be released from any tax or assessment for the payment of the refunding bonds so authorized to be issued, but shall remain subject to such other or additional taxes, if any, as may be levied pursuant to law.

Acts 1935, ch. 51, § 6; C. Supp. 1950, § 4341.6; T.C.A. (orig. ed.), § 70-1425; T.C.A. § 69-6-925.

69-5-926. Refunding bonds — Extended assessments.

Upon the issuance of refunding bonds as provided for in §§ 69-5-92069-5-927, the time of payment of the subsequently accruing original annual installments of taxes shall be extended, and the taxes shall become due and payable in such greater number of annual installments and in such respective amounts as the county legislative body, in its order directing the issuance of refunding bonds, shall direct. And the county legislative body shall direct the county clerk to prepare and to certify a new drainage assessment book showing such extended assessments and to file the same with the county trustee, or with the respective county trustees in the event the district should embrace lands in more than one (1) county. The taxes shall be collected and the payment of the taxes enforced at the same time and in the same manner as is now provided by law for the collection and enforcement of payment of drainage taxes. It is the duty of the county legislative body in fixing the respective annual installments of the extended assessments to provide for the collection annually of amounts sufficient to provide for the payment of such refunding bonds and the accruing interest on the bonds.

Acts 1935, ch. 51, § 7; C. Supp. 1950, § 4341.7; impl. am. Acts 1978, ch. 934, §§ 7, 22, 36; T.C.A. (orig. ed.), § 70-1426; T.C.A. § 69-6-926.

Cross-References. Drainage assessment book, § 69-5-813.

69-5-927. Refunding bonds — Powers conferred on board of directors.

No proceedings shall be required for the issuance of refunding bonds of drainage or levee districts other than those provided by §§ 69-5-92069-5-927, and all powers necessary to be exercised by the board of directors of any drainage or levee district or by the county legislative body in order to carry out those sections are hereby conferred.

Acts 1935, ch. 51, § 9; C. Supp. 1950, § 4341.9; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A. (orig. ed.), § 70-1428; T.C.A. § 69-6-927.

69-5-928. Borrowing money to pay bonds and interest.

If in any year, on account of the delinquent assessments, and the incidental delay in enforcing their collection, the funds are insufficient to pay the bonds and interest, or bonds or interest maturing for payment in that year, the board of directors of the district has the power to borrow the necessary money to make up the deficiency and prevent default, and may make a note or notes, in the name of the drainage district, or drainage and levee district, signed by the board officially. For security, the board may pledge or bind, for the payment of the note or notes, the delinquent, or unpaid assessment, for the particular year. The delinquent assessments, when collected, shall constitute a fund for the payment of the money borrowed. The amount so borrowed by the board of directors shall be paid to the trustee of the county to be used by the trustee as other funds are used in the payment of the bonds and interest maturing.

Acts 1915, ch. 63, § 4; Shan., § 3871a134; Code 1932, § 4366; T.C.A. (orig. ed.), § 70-1429; T.C.A. § 69-6-928.

69-5-929. Appointment of receiver for defaulting drainage district.

When any bond or interest coupon of any bond, issued by any district within the state has been past due for two (2) years, and payment has been demanded by the holder of any such at the place designated for payment in such instrument, and also to the chair of the board of directors of any such district, such holder of any bond, or interest coupon on any such bond, has the right to make application to any court of competent jurisdiction within the county or counties of the district for the appointment of a receiver for the defaulting district, and it is the duty of the court, upon presentation of a petition properly verified, to appoint a receiver in such case to collect the assessments and taxes due any such district.

Acts 1909, ch. 185, § 34b, as added by Acts 1923, ch. 73, § 3; Shan. Supp., § 3871a135b2; mod. Code 1932, § 4369; T.C.A. (orig. ed.), § 70-1430; T.C.A. § 69-6-929.

NOTES TO DECISIONS

1. Proper Parties Plaintiff.

The drainage statute nowhere authorizes bondholders to institute suits for collection of delinquent assessments. Fayette County ex rel. Loosahatchie River Drainage Dist. v. Graham, 178 Tenn. 54, 156 S.W.2d 379, 1941 Tenn. LEXIS 29 (1941).

There was nothing in this section or former § 69-6-930 (now § 69-5-930) requiring the receiver of a drainage district to bring a separate and independent suit to have a lien declared on landowners' property and the land sold for taxes due the district where the right of the county and state to maintain the suit for the use of the district was challenged by the landowners, and it was proper for the chancellor to allow the receiver to file an intervening petition. State v. Wilson, 179 Tenn. 54, 162 S.W.2d 510, 1942 Tenn. LEXIS 6 (1942).

A bondholder cannot maintain an action in his own name and a county has no right to maintain a suit for the benefit of a bondholder, but a receiver alone can maintain an action for the benefit of a bondholder. Cooper v. Little, 29 Tenn. App. 685, 201 S.W.2d 210, 1946 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1946).

Defendants in a suit for the collection of drainage assessments properly questioned the validity of all proceedings had in the case prior to the appointment of a receiver on the ground that county, suing for the use and benefit of the bond owners or their assignee, were not proper parties and had no authority to institute the suit. Suits of this character must be brought by a receiver and not by an individual bondholder. Madison County use of Drainage Dist. v. Croom, 185 Tenn. 46, 202 S.W.2d 975, 1944 Tenn. LEXIS 264 (1944).

In suit for the collection of drainage assessments against certain property, the chancellor correctly permitted assignee of drainage bonds to file its petition praying for the appointment of a receiver and there was no merit in the contention that such assignee “brought a lawsuit.” Such assignee was a proper party under this and the following section and had authority to apply for the appointment of a receiver. Madison County use of Drainage Dist. v. Croom, 185 Tenn. 46, 202 S.W.2d 975, 1944 Tenn. LEXIS 264 (1944).

2. Limitation Period.

Ten year limitation period instead of six year limitation period applied to suit by county to collect delinquent drainage district assessment, which ceased to run upon appointment of receiver, and not on filing of original bill by county. Madison County use of Drainage Dist. v. Croom, 185 Tenn. 46, 202 S.W.2d 975, 1944 Tenn. LEXIS 264 (1944).

3. Appointment of Receiver.

Securities company, which purchased bond issue from holder of issue after filing of bill by county to collect assessments was entitled to file petition in proceeding for appointment of receiver. Madison County use of Drainage Dist. v. Croom, 185 Tenn. 46, 202 S.W.2d 975, 1944 Tenn. LEXIS 264 (1944).

4. Collection.

The proceeding to enforce the collection of delinquent drainage assessment by sale of assessed land is purely statutory and the statute must be strictly followed. Patterson v. Gaddy, 28 Tenn. App. 487, 191 S.W.2d 556, 1944 Tenn. App. LEXIS 81 (1944).

5. Validity of Decree.

Where portion of suit to enforce drainage assessments brought by county for benefit of drainage districts was valid, sale of delinquent land under decree was also valid. Cooper v. Little, 29 Tenn. App. 685, 201 S.W.2d 210, 1946 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1946).

69-5-930. Powers of receiver — Removal and appointment of another.

Any receiver appointed pursuant to § 69-5-929 shall have the power to institute suits for the collection of delinquent assessments in the same manner as the district itself would have had and with the same effect and to do all things necessary to collect delinquent assessments or other debts due the district. Such receiver shall first pay all costs out of the assessments as soon as collected, and shall then prorate the remainder to the payment of bonds and coupons then due. The receiver shall be under the jurisdiction and control of the court appointing the receiver, and shall have power to proceed in any court of competent jurisdiction where it is necessary to enforce any lien against any land within the district. The court shall have the power to discharge the receiver at any time and appoint another receiver, and when all bonds and interest coupons overdue have been paid, the receiver shall be discharged. The receiver shall have further authority to give a deed and pass good title to any lands in the district that may be advertised for sale and sold for delinquent taxes, subject only to the rights of the owner of the lands to redeem the land within two (2) years from the date of the sale, on payment of the amount paid by the purchaser for the land, with legal interest on the amount paid, to the date of redemption. Any person owning an undivided interest or any specific portion thereof or any part of any tract or tracts of land that is assessed for drainage sums assessed to another shall receive receipt in full for that person's taxes on paying such portion of the taxes as the claims of the property or such proportion of the taxes as that person's quantity of the property bears to the whole quantity taxed.

Acts 1909, ch. 185, § 34b, as added by Acts 1923, ch. 73, § 3; Shan. Supp., § 3871a135b3; mod. Code 1932, § 4370; T.C.A. (orig. ed.), § 70-1431; T.C.A. § 69-6-930.

NOTES TO DECISIONS

1. Suit by Receiver.

County was without authority to maintain suit for benefit of bondholders because under this section such suits must be brought by receiver appointed for the purpose. Cooper v. Little, 29 Tenn. App. 685, 201 S.W.2d 210, 1946 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1946).

Securities company, which purchased bond issue from holder of issue after filing of bill by county to collect assessments was entitled to file petition in proceeding for appointment of receiver. Madison County use of Drainage Dist. v. Croom, 185 Tenn. 46, 202 S.W.2d 975, 1944 Tenn. LEXIS 264 (1944).

Orders against defendants entered in proceeding by county to collect delinquent drainage district assessments prior to appointment of receiver to conduct proceeding were void. Madison County use of Drainage Dist. v. Croom, 185 Tenn. 46, 202 S.W.2d 975, 1944 Tenn. LEXIS 264 (1944).

2. Intervention by Receiver.

This section and former § 69-6-629 (now § 69-5-929) do not support the contention that the receiver must bring a separate and independent suit. True, he may do so and should, but they do not deny the right of the chancellor to allow him to intervene by petition where he is a necessary party. State v. Wilson, 179 Tenn. 54, 162 S.W.2d 510, 1942 Tenn. LEXIS 6 (1942).

3. Bondholders.

Owners and holders of outstanding bonds of drainage district cannot maintain suit for collection of delinquent tax assessments due the district either by joining with the county as relators or alone. Fayette County ex rel. Loosahatchie River Drainage Dist. v. Graham, 178 Tenn. 54, 156 S.W.2d 379, 1941 Tenn. LEXIS 29 (1941).

Where caption in suit to enforce drainage assessment liens was in name of county for use and benefit of drainage district and where bondholders averred that suit was brought for named bondholder as well as district, but where procedure was under statute governing suits for benefit of drainage districts and not under statute governing action for benefit of bondholders, court had jurisdiction over drainage district, but not over bondholders. Cooper v. Little, 29 Tenn. App. 685, 201 S.W.2d 210, 1946 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1946).

4. Landowners May Defend.

The appointment of a receiver and the filing of an intervening petition by him in a suit to have a lien declared on landowners' property and the land sold for delinquent taxes due drainage district did not deprive the landowners of the right to interpose a valid defense. State v. Wilson, 179 Tenn. 54, 162 S.W.2d 510, 1942 Tenn. LEXIS 6 (1942).

5. Valid Sale.

Where portion of suit to enforce drainage assessments brought by county for benefit of drainage districts was valid, sale of delinquent land under decree was also valid. Cooper v. Little, 29 Tenn. App. 685, 201 S.W.2d 210, 1946 Tenn. App. LEXIS 103 (Tenn. Ct. App. 1946).

6. Period of Limitation.

Where landowners attacked the right of the county and state to maintain a suit for the use of drainage district to have a lien declared on landowners' property and where a receiver was appointed, the statute of limitations ran from the appointment of the receiver and the filing of the petition. State v. Wilson, 179 Tenn. 54, 162 S.W.2d 510, 1942 Tenn. LEXIS 6 (1942).

Ten year limitation period instead of six year limitation period applied to suit by county to collect delinquent drainage district assessment that ceased to run upon appointment of receiver and not on filing of original bill by county. Madison County use of Drainage Dist. v. Croom, 185 Tenn. 46, 202 S.W.2d 975, 1944 Tenn. LEXIS 264 (1944).

69-5-931. County trustee's compensation.

The county trustee, for receiving and paying out money received from the sale of bonds and warrants issued and sold under this part, shall be entitled to a commission of one half of one percent (0.5%) for receiving the same, and one half of one percent (0.5%) for paying out the same. The trustee shall pay over to the trustee's successor in office any of the moneys and funds remaining in the trustee's hands at the expiration of the trustee's term of office, when the successor trustee has executed bond, as provided by § 69-5-908. It is the duty of such succeeding trustee to execute such bond, and for failure to do so, the succeeding trustee shall be liable to the penalties provided by § 69-5-908. Whichever trustee actually disburses the funds so arising from the sale of bonds or warrants shall be entitled to the commission of one half of one percent (0.5%); provided, that the succeeding trustee shall not be entitled to any commissions for receiving such funds from the predecessor trustee.

Acts 1913 (1st Ex. Sess.), ch. 25, § 12; Shan., § 3871a140; Code 1932, § 4375; T.C.A. (orig. ed.), § 70-1432; T.C.A. § 69-6-931.

Part 10
Multi-County Districts Generally

69-5-1001. Application by petitions — Engineer — Viewers.

  1. Where a proposed or desired improvement will require a location in more than one (1) county, applications by petition shall be made to the county court of each of the counties as provided by part 1 of this chapter for applications where the improvement to be made lies wholly in one (1) county, and signed by one (1) or more persons owning lands lying in each county to be affected, or assessed for the proposed improvement.
  2. When such petitions have been filed, the county court of the county in which the larger or largest percent of the lands to be affected by such improvement lies shall appoint a competent engineer to make survey, of such proposed improvement district in the same manner as when the proposed improvement lies wholly in one (1) county, and such engineer shall proceed in the same manner as when the improvement lies wholly in one (1) county, and the engineer shall make out duplicate reports of the survey and work and file one (1) with each of the county clerks in the counties where the petition for such improvement is filed. After the reports of the engineer are so filed, the county court of each of the counties shall proceed as provided in part 1 of this chapter for improvement districts located wholly in one (1) county until the point in the proceeding is reached when viewers are to be appointed to assess damages, as provided by part 2 of this chapter. As to such viewers, the county court of the county in which the larger or largest percent of the lands to be affected or assessed on account of such improvement is located, or lies, shall appoint two (2) viewers, and one (1) of whom shall be appointed by the county court of each of the other counties concerned, if more than one (1) other county, and if only one (1) other, by the county court of such county, the viewers to have the same qualifications, as provided for viewers in part 2 of this chapter. When so appointed, the viewers shall meet as soon as practicable at some convenient point to be designated by the clerk of the county, the court of which appoints two (2) of the viewers, and shall then proceed to assess damages, as provided in part 2 of this chapter for districts lying in one (1) county only, the engineer rendering them like assistance, as provided in part 2 of this chapter. When their work is completed, the viewers shall make out one (1) copy of their report for each of the counties, signing same, and shall file a copy of such report with each of the county clerks of the counties where such petitions have been filed for the establishment of such improvement or district.

Acts 1909, ch. 185, § 29; Shan., § 3871a116; Code 1932, § 4345; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1501; T.C.A. § 69-6-1001.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. Multi-county districts, alternative procedure, § 69-5-1006 and title 69, ch. 5, part 11.

69-5-1002. Proceedings after reports of viewers — Assessment of lands.

  1. When the viewers have so reported, each of the county courts shall proceed as provided in other cases in parts 1 and 2 of this chapter until the point is reached to appoint commissioners to make assessments and apportion them as to the lands affected, when the county court of the county in which the larger or largest percent of the land lies to be assessed or affected, shall appoint two (2) of the commissioners, one (1) of these appointees to be a competent engineer, and the other county court, or courts, shall appoint one (1) of the commissioners each, the commissioners so appointed to have the same qualifications as provided in part 3 of this chapter.
  2. When so appointed, the commissioners shall, as soon as practicable, meet at some convenient place to be designated by the county clerk of the county, the court of which has appointed two (2) of the commissioners, one (1) being an engineer, and shall then proceed to assess the lands in such district, and apportion the assessments in the same manner as provided in part 3 of this chapter where such district lies wholly in one (1) county, and shall report in like manner, and shall file a copy of their report with the clerk of each county having lands within such improvement district.
  3. When such commissioners have so reported, each of such county courts shall proceed as to the reports and in levying assessments, as provided by part 3 of this chapter, in cases of districts lying in one (1) county only.

Acts 1909, ch. 185, § 30; Shan., § 3871a117; Code 1932, § 4346; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1502; T.C.A. § 69-6-1002.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-1003. Board of directors.

In cases of districts so lying in more than one (1) county, the board of directors of such districts shall consist of one (1) member from each county, to be appointed by the county court of such county, and the county mayor of each of the counties shall be a member of such board of directors, and the qualifications, powers, and duties of such board of directors shall be the same as provided by parts 6 through 9 of this chapter for boards of directors and members of boards in improvement districts lying entirely in one (1) county.

Acts 1909, ch. 185, § 31; Shan., § 3871a118; Code 1932, § 4347; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-1503; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-1003.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-1004. Removal of viewers, commissioners, and directors.

The county courts have the same right to remove the viewers, commissioners, and directors appointed by such court, and to appoint others in their stead, and to fill vacancies that the county courts have where such improvement district lies wholly in one (1) county.

Acts 1909, ch. 185, § 31; Shan., § 3871a119; Code 1932, § 4348; T.C.A. (orig. ed.), § 70-1504; T.C.A. § 69-6-1004.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-5-1005. Chair and secretary-treasurer.

The county mayor of the county in which the larger or largest percent of the lands of such improvement district lies shall be chair of such board of directors, with authority to call meetings of the board. The board shall elect one (1) of the appointed directors secretary and treasurer of the board of directors, and such treasurer shall give bond, as provided by part 6 of this chapter, such bond or a duplicate of same to be filed with the county clerk in each of the counties and recorded in the drainage record, the bond to be taken before and approved by the county court of the county in which the larger or largest percent of the lands of the district lies.

Acts 1909, ch. 185, § 31; Shan., § 3871a120; Code 1932, § 4349; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-150; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-1005.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-1006. Map of district.

The engineer of such district shall show in the engineer's report upon the map of the district the location of the line or lines between counties, and show clearly what tracts of land within such district lie in each of the counties of the district.

Acts 1915, ch. 61, § 8; Shan., § 3871a170; mod. Code 1932, § 4406; T.C.A. (orig. ed.), § 70-1514; T.C.A. § 69-6-1006.

Part 11
Multi-County Districts — Alternative Procedure

69-5-1101. Legislative intent.

It is the intention of this part to provide an additional method of proceedings in the establishment of improvement or drainage districts, lying in more than one (1) county, and to leave the parties concerned, and petitioners for the improvement or drainage districts, to their option whether they will proceed under one (1) or the other alternative methods in creating such districts where the lands to be included lie in more than one (1) county.

Acts 1915, ch. 61, § 7; Shan., § 3871a169; mod. Code 1932, § 4405; T.C.A. (orig. ed.), § 70-1506; T.C.A. § 69-6-1101.

69-5-1102. Petition for formation.

When a proposed improvement, drainage district, or drainage and levee district will require its location in more than one (1) county, the application by petition may in the alternative be made to the county court of any one (1) of the counties in which such district will be in part located, if established, such petition to be signed by persons residing in, and owning lands in, any one (1) or more of the counties. The court in which such petition is filed shall have full jurisdiction in the premises for the purpose of creating and establishing such drainage or drainage and levee district. It is not necessary to file such petition in the county court of any other county in which some of the lands lie that are to be included in the proposed district.

Acts 1915, ch. 61, § 1; Shan., § 3871a162; mod. Code 1932, § 4398; T.C.A. (orig. ed.), § 70-1507; T.C.A. § 69-6-1102.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

NOTES TO DECISIONS

1. Construction with Other Statutes.

Acts 1915, ch. 61 amending Acts 1909, ch. 185 by providing a method of establishing drainage district where lands lay in more than one county was limited to that subject matter so that once the district was established the 1909 Act governed as to the powers, rights, and obligations of the agencies. Lake County v. Morris, 160 Tenn. 619, 28 S.W.2d 351, 1930 Tenn. LEXIS 146 (1930).

2. Ancillary Actions.

General Assembly could properly delegate to one county the function of establishing a proposed drainage district covering several counties without the necessity of filing ancillary actions in other counties involved. In re Forked Deer Drainage Dist., 133 Tenn. 684, 182 S.W. 237, 1915 Tenn. LEXIS 129 (1915).

69-5-1103. Engineer, viewers, commissioners, and directors.

The court in which the petition is filed has full power and authority to appoint the engineer, viewers to assess damages, commissioners to make assessments and apportion the same on the lands affected, and directors, just as if such district lay wholly in one (1) county, and as provided in parts 1-7 of this chapter, when such district lies entirely in one (1) county. The viewers and commissioners shall make their reports to the court where the petition was filed and only to that court. The county mayor of the county where such petition is filed shall be, ex officio, chair of such board of directors. The viewers and commissioners may be resident citizens of any one (1) or more of the counties having lands embraced in such district, but with all the other qualifications set out in parts 2 and 3 of this chapter.

Acts 1915, ch. 61, § 2; Shan., § 3871a163; Code 1932, § 4399; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-1508; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-1103.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-1104. Assessments.

The assessments levied on the lands shall be made in and by the court where the petition was filed and the proceeding is pending, as provided in part 8 of this chapter as to assessments where the district is wholly in one (1) county, such assessments to be made on the lands in all of the counties included within the district. The clerk of the county in which the petition is filed and the proceeding pending shall make out the drainage assessment book in which the assessment for the entire district appears. The clerk shall then copy so much of the drainage assessment book as contains the assessment of lands in any other county than that where the petition was filed and proceeding is pending, certify under seal that it is a correct copy of that portion, or part of such book, and transmit or deliver it, to the trustee of such other county, taking a clerk's receipt for the copy.

Acts 1915, ch. 61, § 3; Shan., § 3871a164; Code 1932, § 4400; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1509; T.C.A. § 69-6-1104.

Cross-References. Drainage assessment book, § 69-5-813.

NOTES TO DECISIONS

1. Certified Copy.

Certified copy of lands in other county appearing in “Drainage Assessment” and transmitted by clerk to trustee of other county has all the force and effect of “Drainage Assessment Book” filed in the county where proceedings are instituted. Lake County v. Morris, 160 Tenn. 619, 28 S.W.2d 351, 1930 Tenn. LEXIS 146 (1930).

69-5-1105. Disposition of collected assessments.

It is the duty of the trustee of any county in which part of the lands of such district lie to receive the certified copy mentioned in § 69-5-1104, and to collect the assessments shown by the same, as provided in part 8 of this chapter where the district lies entirely in one (1) county, and to duly account for and pay over the same when collected. The trustee collecting such assessments in any county shall pay the same upon the warrants drawn on the trustee by the county mayor of the county where the proceeding is pending, or petition was filed, as provided by law. Such warrants may be drawn to transfer such amounts collected from the hands of the trustee of any other county to the trustee of the county where the proceeding is pending, to the end that all the vouchers for money disbursed shall be on file in the county where the proceeding is pending.

Acts 1915, ch. 61, § 4; Shan., § 3871a165; Code 1932, § 4401; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-1510; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-1105.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-1106. Assessments become liens.

The assessments provided for by this part, when made and levied shall be and become valid liens upon all the lands so assessed as state and county taxes are liens upon lands.

Acts 1915, ch. 61, § 5; Shan., § 3871a166; mod. Code 1932, § 4402; T.C.A. (orig. ed.), § 70-1511; T.C.A. § 69-6-1106.

69-5-1107. Bonds.

Bonds may be issued by such drainage district, or drainage and levee district, located in more than one (1) county, to pay for the cost and expenses of the proposed improvement in the general method provided in part 9 of this chapter. Such bonds shall be signed by the county mayor of each of the counties that have lands in such district, and countersigned by the county clerk of each of the counties, and the county seal, or seal of the county clerk, of each county shall be affixed to such bonds by each of the clerks, and the bonds shall be signed and sealed first by the officers of counties other than that in which the proceeding is pending, and last by the officers of the county in which the petition was filed and the proceeding pending, and shall then be ready for issuance. Such bonds shall show upon their face that they are issued by the several counties having lands in such district. The assessments on the lands in each county shall only be bound and liable for their pro rata part of such bonds and interest on the bonds, and according to assessments levied; and only the lands in such district shall be liable for the assessments levied on the lands as provided in part 9 of this chapter. It is the duty of each of the officers in each of the counties to sign, and countersign, and seal such bonds, as provided in part 9 of this chapter, when they have been ordered issued by the court in which the petition was filed and proceeding is pending.

Acts 1915, ch. 61, § 6; Shan., § 3871a167; Code 1932, § 4403; impl. am. Acts 1978, ch. 934, §§ 16, 22, 36; T.C.A. (orig. ed.), § 70-1512; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-1107.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-1108. Proceeds of bond sale.

The proceeds of the bonds, when sold, shall be deposited with one (1) or more of the trustees as directors of such district shall direct, but so the same, or any part thereof, that may be placed in the hands of a county trustee other than the trustee of the county where the proceeding is pending, may be transferred to the trustee of the county where the proceeding is pending, if deemed best, to the end that the entire fund may be paid out by the trustee on proper warrants drawn. The county mayor of the county where the proceeding is pending shall draw all warrants upon, or against the funds, or proceeds of bonds to meet lawful demands of the district, as now provided by law, and draw warrants to transfer the funds as provided in this section. But any of the trustees before receiving any of the proceeds of such bonds shall give bond to account for them as the law now provides.

Acts 1915, ch. 61, § 6; Shan., § 3871a168; Code 1932, § 4404; impl. am. Acts 1978, ch. 934, §§ 16, 36; T.C.A. (orig. ed.), § 70-1513; Acts 2003, ch. 90, § 2; T.C.A. § 69-6-1108.

Compiler's Notes. Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all such changes in supplements and replacement volumes for the Tennessee Code Annotated.

69-5-1109. Map of district.

The engineer of the district shall show in the engineer's report upon the map of the district the location of the line or lines between counties, and show clearly what tracts of land within such district lie in each of the counties of the district.

Acts 1915, ch. 61, § 8; Shan., § 3871a170; mod. Code 1932, § 4406; T.C.A. (orig. ed.), § 70-1514; T.C.A. § 69-6-1109.

Part 12
Subdistricts

69-5-1201. General provisions.

  1. Any person, who owns lands within any drainage district, and who desires to establish a subdistrict within the limits of the original district for the purpose of securing more complete drainage, may file a petition with the county clerk, asking the county court to establish such subdistrict, and describing the lands to be affected by the subdistrict so as to convey an intelligible description of such lands. The bond and all other proceedings shall be the same as provided in parts 1-11 of this chapter for the establishment, formation, and construction of original districts and improvements of districts, including the assessment of damages and assessment of benefits.
  2. When established and constructed, it shall be and become a part of the drainage system of such drainage district, and be under the control and supervision of the board of directors of such drainage district.
  3. The subdistrict shall only be established when conducive to the public health or welfare, or to the public benefit or utility.
  4. Any special assessments made for the benefit of such subdistrict shall be secondary in lien and in right to the assessments for the benefit of the original district.

Acts 1909, ch. 185, § 26; Shan., § 3871a106; Code 1932, § 4334; T.C.A. (orig. ed.), § 70-1601; T.C.A. § 69-6-1201.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Cross-References. Circuit court defined, § 69-5-102.

Part 13
Districts by Mutual Consent

69-5-1301. Mutual agreements authorized.

The owners of land that requires combined drainage may provide for the establishment of a drainage district, or location and construction of drains, ditches, and watercourses upon their own lands by mutual agreement in writing duly signed, acknowledged, and filed with the county clerk.

Acts 1909, ch. 185, § 38; Shan., § 3871a146; Code 1932, § 4381; T.C.A. (orig. ed.), § 70-1701; T.C.A. § 69-6-1301.

Cross-References. Circuit court defined, § 69-5-102.

69-5-1302. Contents of agreement — Validity.

A mutual agreement may include the location, the character of work to be done, the adjustment of the damages, the classification of the lands to be benefited by the agreement, the amount of special assessments to be levied, when the special assessments shall be levied, or so many of these or other provisions as may be agreed upon, and to such extent shall be as valid and binding as though performed in the mode and manner provided for in parts 1-12 of this chapter.

Acts 1909, ch. 185, § 38; Shan., § 3871a147; Code 1932, § 4382; T.C.A. (orig. ed.), § 70-1702; T.C.A. § 69-6-1302.

69-5-1303. Jurisdiction over mutual agreement districts.

Upon the filing of the agreement with the county clerk, the county court shall establish such drainage district and locate the ditch, drain, or watercourse provided for in the mutual agreement according to the terms of the agreement, and shall have full and complete jurisdiction of the parties and subject matter, and order such procedure under this chapter as may be required to carry out the object and intent of such agreement, and to complete and construct the desired improvement, and shall retain jurisdiction of the parties and subject matter as fully as in other cases provided for in this chapter.

Acts 1909, ch. 185, § 38; Shan., § 3871a148; mod. Code 1932, § 4383; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A. (orig. ed.), § 70-1703; T.C.A. § 69-6-1303.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

Chapter 6
Watershed Districts

69-6-101. Short title.

This chapter shall be known as the “Watershed District Act of 1955.”

Acts 1955, ch. 112, § 1; T.C.A., § 70-1801; T.C.A. § 69-7-101.

Cross-References. Tangible personal property used by watershed district exempt from sales or use tax, § 67-6-328.

Textbooks. Tennessee Jurisprudence, 17 Tenn. Juris., Levees, § 1.

Law Reviews.

Water Rights in Tennessee (Mahlon L. Townsend), 27 Tenn. L. Rev. 557.

NOTES TO DECISIONS

1. Nature of Watershed District.

A watershed district is a governmental, rather than a private, corporate body. Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1978 U.S. App. LEXIS 7539 (6th Cir. Tenn. 1978).

The Porters Creek Watershed District of Hardeman county was an independent political unit not within the immunity provisions of the eleventh amendment. Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1978 U.S. App. LEXIS 7539 (6th Cir. Tenn. 1978).

69-6-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Board” means the board of directors of a watershed district;
  2. “District” means a watershed district for which organization is proposed or which has been granted under this chapter;
  3. “Land” means “real property” as defined by the laws of this state and includes, but is not limited to, easements, water rights, or any other interest in real property;
  4. “Landowner” means any person owning any interest in land located in a district, including tenants in common, tenants by the entireties, joint tenants, life tenants, owners of dower or curtesy rights, vested beneficiaries of the remainder interests, and the holders of leasehold interests of more than three (3) years' duration. Where more than one (1) person owns any such interest in a particular tract of land, each shall be deemed a “landowner” for the purpose of this chapter;
  5. “Person” means any person, firm, partnership, association or corporation;
  6. “Publication” means the publication in a newspaper or newspapers admitted to the United States mail as second-class matter, of general circulation within the watershed district; and
  7. “Voter” means any landowner of the district who is more than eighteen (18) years of age and who is sui juris.

Acts 1955, ch. 112, § 2; impl. am. Acts 1971, ch. 162, § 3; T.C.A., § 70-1802; T.C.A. § 69-7-102.

Compiler's Notes. Dower and curtesy rights, referred to in this section, have been repealed. See § 31-2-102.

69-6-103. Organization of district — Petition — Copies — Certification — Filing.

    1. Before any watershed district is organized, a petition shall be filed in the office of the state soil conservation committee, signed by not less than twenty percent (20%) of the landowners of the real property, and representing twenty-five percent (25%) of the acreage within the proposed district, as shown by a verified enumeration of the landowners taken by a landowner of the proposed district to be selected by the first ten (10) signers of the petition. In the event the proposed district embraces land in more than one (1) county, the enumeration shall be separated as to counties.
      1. A verified copy of the enumeration shall be filed with the county clerk of each county in which any portion of the proposed district is located.
      2. A duplicate copy of the petition, containing the text of the petition in full, shall be filed with the county clerk of each county where any part of the proposed district lies.
  1. There shall be filed with the state soil conservation committee, as an exhibit to the petition, a certification as to the number of landowners within the proposed district, that the petition is signed by not less than twenty percent (20%) of such landowners, and that the signers of the petition represent twenty-five percent (25%) of the acreage within the proposed district. The certification as to each respective county shall be signed by the county clerk, or the county assessor of property of such county.

Acts 1955, ch. 112, §§ 3, 5; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A., §§ 70-1803, 70-1805; impl. am. Acts 1984, ch. 687, § 3; T.C.A., § 69-7-105; T.C.A. § 69-7-102.

Compiler's Notes. Acts 2008, ch. 971, § 1 provided that the code commission is directed to change all references to “tax assessor”, wherever such references appear in title 69, chapter 6, part 1, to “assessor of property”, as such sections are amended or volumes are replaced. See § 1-1-116.

NOTES TO DECISIONS

1. Metropolitan Government Approval Unnecessary.

A proposed watershed district located within the boundaries of a metropolitan government is not required to obtain the approval of the metropolitan government before organizing. State ex rel. Metro. Government of Nashville v. Spicewood Creek Watershed Dist., 848 S.W.2d 60, 1993 Tenn. LEXIS 41 (Tenn. 1993).

69-6-104. Contents of petition.

  1. The petition shall set forth:
      1. The proposed name of the district;
      2. Wherever practical the name of the district shall include the name of the principal body of water located in the watershed, such as “  Watershed District”;
      3. The state soil conservation committee is empowered to reject the proposed name where a watershed district previously established has the same or a closely similar name;
    1. A description of the boundaries of the area to be included in the district;
    2. A statement of the purposes for which the district is to be organized;
    3. A statement of the number of persons who shall constitute the temporary board of directors of the district, which shall be not less than five (5) nor more than nine (9), together with the names and addresses of the persons who will constitute the original board of directors, with the term of office of each set forth beside the corresponding name, and with one (1) member designated as acting chair; and
    4. A prayer for the organization of the district as a nonprofit corporation.
  2. A map showing the boundaries of the district shall be attached to the petition as an exhibit and incorporated in the petition by reference.
  3. The petition shall be sworn to by not less than five (5) of the signers.

Acts 1955, ch. 112, § 4; T.C.A., § 70-1804; impl. am. Acts 1984, ch. 687, § 3; T.C.A. § 69-7-104.

69-6-105. [Reserved.]

The state soil conservation committee shall determine the sufficiency or insufficiency of the petition and the exhibits to the petition, including the certification by the county clerk, or county assessor of property, required in § 69-6-103. If the petition and the attached exhibits meet the requirements of this chapter, the state soil conversation committee shall issue notice that the petition has been found sufficient in form to the acting chair of the board as set forth in the petition.

Acts 1955, ch. 112, § 6; T.C.A., § 70-1806; impl. am. Acts 1984, ch. 687, § 3; T.C.A. § 69-7-106.

Compiler's Notes. Acts 2008, ch. 971, § 1 provided that the code commission is directed to change all references to “tax assessor”, wherever such references appear in title 69, chapter 6, part 1, to “assessor of property”, as such sections are amended or volumes are replaced. See § 1-1-116.

69-6-107. Organizational meeting — Establishing the district.

  1. Upon receiving notification of the sufficiency of the petition from the state soil conservation committee, the acting chair of the board of the proposed district shall call a meeting of the board by mailing a written notice, fixing the time and place of such meeting, to each member of the board at least five (5) days in advance of the time so fixed, unless such notice is duly waived. In addition, the chair shall post a copy of the notice at a conspicuous place at the courthouse door of each county in which any part of the proposed district is located.
  2. The members of the board named in the petition have all powers necessary in matters looking to the establishment of the district and, upon the establishment of the district, shall continue to serve as directors until their successors are duly elected and qualified.
  3. The members of the board shall meet at the time and place fixed in such notice for the purpose of electing from their number a president, a vice president, a secretary and a treasurer, and for the purpose of calling, by resolution, an election of the voters in the district, as defined in this chapter, for the purpose of submitting to the voters the question of whether the district shall be organized and created in accordance with the petition.

Acts 1955, ch. 112, § 6; T.C.A., § 70-1807; impl. am. Acts 1984, ch. 687, § 3; T.C.A. § 69-7-107.

69-6-108. Conduct of election — Voting places — Judges and clerks.

  1. The board shall designate one (1) or more centrally located voting places within the proposed district, but if the territory of such proposed district lies in more than one (1) county, then at least one (1) voting place shall be designated within each county of the proposed district in which more than fifteen (15) voters reside, and if there are less than fifteen (15) eligible voters, the board shall designate an adjacent county in the district in which they shall vote.
  2. The board shall name and appoint three (3) judges and two (2) clerks for each designated voting place. The judges and clerks shall take oath to perform faithfully their duties as judges and clerks, respectively, and shall receive compensation for their services as may be prescribed by the board, which shall not exceed the per diem allowed election officers for holding general elections in the county.
  3. No member of the board shall be eligible to serve as a judge or clerk in any water district election.

Acts 1955, ch. 112, § 6; T.C.A., § 70-1808; T.C.A. § 69-7-108.

69-6-109. Election notice.

  1. The president and secretary shall cause a notice of the special election to be published for three (3) consecutive weeks in some newspaper of general circulation within the proposed district, the first publication to be not less than twenty-one (21) days prior to such election. If the proposed district lies in more than one (1) county, then a similar notice shall be published in a newspaper of general circulation in each of the counties in which a part of the proposed district is located.
  2. The election notice shall set forth the time and place or places of holding the election, the proposal to be voted on, and the purposes for which the proposed district is to be created. The following proposition to be voted on shall be set forth in such notice:

    Q. Shall the board of directors proceed with the creation of the proposed watershed district in accordance with the Watershed District Act of 1955?

  3. The notice shall be signed by the president and attested to by the secretary of the board.

Acts 1955, ch. 112, § 6; T.C.A., § 70-1809; T.C.A. § 69-7-109.

69-6-110. Form of ballot — Qualifications of voters — Filing results.

  1. The vote at such election shall be by ballot, and such ballot shall comply with the usual requirements for an official ballot for public office insofar as such requirements are applicable. Upon such ballot shall be printed the following question:

    Shall the board of directors of the proposed  Watershed District proceed with the creation of the district in accordance with the Watershed District Act of 1955?

    Yes ♦

    No ♦.

    To vote for the proposal, the voter shall make a cross mark (x) in the square after the word “yes.” To vote against the proposal, the voter shall make a cross mark (x) in the square after the word “no.”

  2. Any person who is qualified to vote in accordance with the definitions contained in this chapter shall be entitled to vote.
  3. The ballots shall be counted by the judges and clerks holding the election before leaving the polling place, and the results of the election shall be certified by the judges and clerks to the secretary of state. Members of the board and any landowner in the proposed district shall be entitled to be present when the ballots are counted.
  4. The ballots and a copy of the certificate shall be filed with the county clerk in every county where such an election is held.

Acts 1955, ch. 112, § 6; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A., § 70-1810; T.C.A. § 69-7-110.

69-6-111. Issuance of charter — Form — Recordation.

  1. If a majority of the landowners voting in the election provided in §§ 69-6-106 — 69-6-110 vote in favor of the organization and creation of the district, the state soil conservation committee shall issue a charter for the district in the same manner as other general welfare corporation charters are issued under the laws of this state.
  2. The form of the charter shall be substantially as follows:

    State of Tennessee—Charter of IncorporationBe it known that (here fill this blank with the names of the board of directors) are hereby constituted a body politic and corporate, by the name and style of (here fill in the name of the watershed district), which shall have all the powers conferred by the Watershed District Act of 1955. The district is described as follows:

    (Insert the description).

    Given under my hand and seal this  day of  20 .

    (The signature of the chair of the committee shall be affixed.)

  3. The charter shall be placed on record in the offices of the register of deeds of each county in which any portion of the district lies. Upon such recordation of its charter, the district shall be authorized to function in accordance with its charter and this chapter.

Acts 1955, ch. 112, § 7; T.C.A., § 70-1811; impl. am. Acts 1984, ch. 687, § 3; T.C.A. § 69-7-111.

69-6-112. Adverse vote on organization — Endorsement — New application.

If a majority of the landowners voting on the proposition shall vote against the organization and creation of the district, the state soil conservation committee shall endorse that fact on the face of the petition and the proceedings shall be closed. A second application containing substantially the same or the same boundaries within a watershed shall not be considered by the state soil conservation committee within eighteen (18) months.

Acts 1955, ch. 112, § 7; T.C.A., § 70-1812; impl. am. Acts 1984, ch. 687, § 3; T.C.A. § 69-7-112.

69-6-113. Officers of district — Duties — Treasurer's bond.

    1. The officers of the district shall be a president, vice president, secretary and treasurer.
    2. The president presides over all meetings of the board and serves as chief executive officer of the district.
    3. The vice president presides in the absence of the president and performs other duties as may be prescribed by the board.
    4. The secretary keeps a full and accurate record of all the proceedings concerning the district and records of the district.
    5. The treasurer is the custodian of all funds of the district. The treasurer shall make bond, secured by a corporate surety, to safeguard all funds coming into the treasurer's hands, in such amount as shall be prescribed by the board of directors. The premium upon the bond shall be paid by the district.
  1. All checks for expenditures shall be signed by the treasurer and countersigned by the president.
  2. The duties of secretary and treasurer may be combined in one (1) person, to be designated as secretary-treasurer.

Acts 1955, ch. 112, § 8; T.C.A., § 70-1813; impl. am. Acts 1984, ch. 687, § 3; T.C.A. § 69-7-113.

69-6-114. Open board meetings.

All meetings of the board, including the organization's meeting provided for in §§ 69-6-10669-6-110, are open to the public, and any landowner, landowner's agent or attorney, is entitled to attend and to be heard.

Acts 1955, ch. 112, § 9; T.C.A., § 70-1814; T.C.A. § 69-7-114.

69-6-115. Filing fees.

  1. The state soil conservation committee is not entitled to collect any fee for the filing of the petition, the issuing of the charter, or other services rendered by it under this chapter.
  2. The fee of the county register for recording the charter of such district shall be one dollar ($1.00).
  3. The county clerk and the county assessor of property are not entitled to any fee for the services required to be rendered by them under this chapter.

Acts 1955, ch. 112, § 10; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A., § 70-1815; impl. am. Acts 1984, ch. 687, § 3; T.C.A. § 69-7-115.

Compiler's Notes. Acts 2008, ch. 971, § 1 provided that the code commission is directed to change all references to “tax assessor”, wherever such references appear in title 69, chapter 6, part 1, to “assessor of property”, as such sections are amended or volumes are replaced. See § 1-1-116.

69-6-116. Funding of expenses — No election without sufficient funds.

  1. For the purpose of paying the costs of the election provided by §§ 69-6-106 — 69-6-110, and for the purpose of paying the costs of recording the charter of such district, and any other necessary expenses incurred in the organization of the district, the board is empowered to receive contributions from private sources, or from counties, cities and towns located within such district.
  2. The legislative body of each county and the governing body of each city or town located within any such district is authorized and empowered to appropriate funds for such expenses, which are hereby declared to be for a public purpose.
  3. No election shall be held under this chapter until sufficient funds to defray the expenses of such election have been received by the board.

Acts 1955, ch. 112, § 11; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A., § 70-1816; T.C.A. § 69-7-116.

69-6-117. Alternative method for establishment of district — Procedure.

  1. As an alternative method for the establishment of a watershed district, any such district may be organized and established in the same manner as a levee and drainage district by the procedure set forth in chapter 5 of this title.
  2. In event this alternative procedure is followed, it will not be necessary to file a petition with the state soil conservation committee, and chapter 5 of this title shall apply to the organization of the district.
  3. Any watershed district that is organized by following the procedure prescribed by chapter 5 of this title has the same objectives and purposes and possesses the same powers as provided for in this chapter.

Acts 1955, ch. 112, § 12; T.C.A., § 70-1817; impl. am. Acts 1984, ch. 687, § 3; T.C.A. § 69-7-117.

Cross-References. Alternative procedure for multi-county districts, title 69, ch. 5, part 11.

69-6-118. Corporate nature of district — Powers.

  1. Each watershed district incorporated under this chapter is a body politic and corporate and has the following powers necessary for carrying out the purposes set forth in this chapter to:
    1. Adopt a seal;
    2. Sue and be sued by its corporate name;
    3. Purchase, hold, sell and convey land and personal property, and execute such contracts as may be deemed necessary or convenient by its board of directors to enable it to properly carry out the purposes for which organized;
    4. Conserve soil and water and to retard floods and develop the water resources of the district;
    5. Contract for the construction of proposed works and improvements;
    6. Employ such professional services and other assistance as are by its board deemed essential;
    7. Construct any drainage works or improvements; to construct any works or improvements for the control, retention, diversion, or utilization of water; retard runoff of water and soil erosion; construct ditches, channel improvements, dikes, levees, flood prevention reservoirs, water conservation reservoirs, or irrigation reservoirs or facilities, parks, and other recreational facilities, and repair, improve and maintain any of such improvements or structures;
    8. Acquire personal property by gift or purchase;
    9. Acquire land, or any interest in land, including leasehold interests, by gift or purchase;
    10. Issue bonds and incur indebtedness within the prescribed limitations of this chapter;
    11. Cooperate and contract with persons, firms, associations, partnerships and private corporations, and with other watershed districts, drainage districts, counties, conservation districts, levee districts, counties, cities, quasi-municipalities, utility districts, and other similar corporations or agencies of this state, and with any such districts or agencies organized for similar purposes in any adjoining state, and with other local, state and federal agencies, including, but not limited to, the Tennessee department of agriculture, department of environment and conservation, Tennessee Valley authority, corps of army engineers, the secretary of defense, United States department of agriculture, or any other federal agency, and to enter into cooperative contracts and agreements with any such districts, corporations or agencies;
    12. Extend district boundaries or merge with adjoining watershed or drainage districts in accordance with the procedure provided in this chapter;
    13. Select a residence or home office for the watershed district, which shall be at a place designated by the board;
    14. Exercise all the powers or receive all benefits, or both, relating to watershed districts prescribed in any other act of congress;
    15. Exercise all the powers conferred upon levee and drainage districts by chapter 5 of this title;
    16. Receive contributions or grants from counties, cities and towns, or from any state or federal agency, or from any other source;
    17. Acquire water rights and distribute or sell water for irrigation or for other purposes, either within or without the district;
    18. Provide recreational facilities;
    19. Lease district-owned lands for agricultural or other purposes;
    20. Contract for all materials, supplies, equipment, personnel, and services necessary for the proper administration of the district;
    21. Expend funds for any purpose set forth in this chapter;
    22. Take such steps as deemed necessary by its board of directors for the promotion and protection of public health within the boundaries of the district, and enter into agreements with private nonprofit corporations, the department of environment and conservation, or any local public health unit, the state stream pollution board, or any other federal, state or local agency for that purpose;
    23. Take such steps as deemed necessary for fire prevention, and for this purpose to enter into cooperative agreements with the department of environment and conservation, or any other federal, state or local agency; and
    24. Make all needful rules, regulations and bylaws for the management and conduct of the affairs of the district and of the board.
  2. None of the powers enumerated in subsection (a) shall be exhausted by use but shall be continuous and perpetual throughout the life of the district.
  3. A watershed district may not regulate or impose any permitting requirements on any facility or improvement that is subject to the requirements of title 59; title 68, chapter 201, 202, 211, 212, 213, 215, or 221; or chapter 3 of this title. No permit for any solid waste management facility shall be issued by the commissioner of environment and conservation before eighteen (18) months after April 30, 1993, for any site located within the boundaries of a watershed district whose charter was issued on or before October 5, 1990, where the watershed district is located within a metropolitan government having a population of over one hundred thousand (100,000), until such time as the board of the watershed district approves the location of the solid waste management facility. A watershed district may not limit any acceptable and commonly used agricultural practice as recognized by Tennessee's Land Grant University School of Agriculture.

Acts 1955, ch. 112, § 13; T.C.A., § 70-1818; Acts 1992, ch. 693, § 1; 1993, ch. 254, §§ 1-4; T.C.A. § 69-7-118; Acts 2006, ch. 863, § 11.

Compiler's Notes. For tables of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Acts 2006, ch. 863, § 25 provided that the amendment by the act shall apply only to eminent domain or condemnation proceedings initiated on or after July 1, 2006.

Cross-References. Power and use of eminent domain, title 29, ch. 17, part 1.

Textbooks. Tennessee Jurisprudence, 11 Tenn. Juris., Levees, § 1.

NOTES TO DECISIONS

1. Sovereign Immunity.

The simple employment of the language “sue and be sued” in subdivision (a)(2) was not sufficient to create a waiver of any sovereign immunity. Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1978 U.S. App. LEXIS 7539 (6th Cir. Tenn. 1978).

2. Governmental Functions.

In rechanneling a creek, a watershed district was exercising a governmental function. Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1978 U.S. App. LEXIS 7539 (6th Cir. Tenn. 1978).

3. Charge of Court.

Error in charging former § 69-6-144 (now § 69-5-144) in proceedings under this chapter was not prejudicial where subdivision (a)(11) of this section was to the same effect. Rush v. Lick Creek Watershed Dist., 50 Tenn. App. 28, 359 S.W.2d 582, 1962 Tenn. App. LEXIS 140 (Tenn. Ct. App. 1962).

69-6-119. Study of watershed area.

Upon the incorporation of the watershed district, the board shall cause a study to be made of the watershed area to be served by the district. The board has the power to employ engineers, surveyors and other personnel necessary for such study and to have prepared surveys, maps, profiles, plans and descriptions, and such other data as may be necessary to establish the boundaries of the area that can be served by the district to the best advantage.

Acts 1955, ch. 112, § 14; T.C.A., § 70-1819; T.C.A. § 69-7-119.

69-6-120. Change of boundaries — Election procedure.

  1. In the event that such study shall establish that the areas embodied in the charter originally issued by the state soil conservation committee need to be enlarged or diminished, or that the boundaries set forth in the charter are substantially and materially insufficient or inaccurate to reasonably describe the district, a petition shall be filed with the state soil conservation committee, conforming to the requirements of §§ 69-6-103 and 69-6-104.
    1. If the petition is granted in accordance with those sections, the officers of the district shall proceed as provided in §§ 69-6-106 — 69-6-110.
    2. Those entitled to vote shall be persons who are entitled to vote within the district and all landowners outside the district, but being landowners in the area proposed to be taken into the district; provided, that the landowners outside the district who shall be entitled to vote are those who are more than eighteen (18) years of age and are sui juris.
    3. The notices required in §§ 69-6-106 — 69-6-110 shall contain an accurate description of the areas to be taken into or excluded from the district.
  2. The question on the ballot shall be as follows:

    Q. Shall  watershed district be enlarged by taking into the district the properties commonly known as the  and  places (lands), or parts thereof, as specifically described in the notices heretofore given in accordance with §§ 69-6-11969-6-121 of the Tennessee Code?

    A. Yes ♦

    A. No ♦

    If the district is to be diminished, the following language shall be inserted: “diminished by excluding from the district” in lieu of the language: “enlarged by taking into the district.”

Acts 1955, ch. 112, § 14; impl. am. Acts 1971, ch. 162, § 3; T.C.A., § 70-1820; impl. am. Acts 1984, ch. 687, § 3; T.C.A. § 69-7-120.

69-6-121. Certification of results — Issuance of amended charter — Recordation.

  1. The result shall be certified to the state soil conservation committee in accordance with §§ 69-6-106 — 69-6-110.
  2. If the vote is favorable, an amended charter shall be issued and shall substantially follow the form prescribed in §§ 69-6-111 and 69-6-112, but shall show on its face that it is an amended charter, issued in accordance with this section.
  3. The amended charter shall become effective after it has been duly recorded in the register's office in every county having lands lying within the district.

Acts 1955, ch. 112, § 14; T.C.A., § 70-1821; impl. am. Acts 1984, ch. 687, § 3; T.C.A. § 69-7-121.

69-6-122. Board of directors of district.

  1. All powers granted to watershed districts incorporated under this chapter shall be exercised by a board of directors, which shall be composed of not less than five (5) nor more than nine (9) members.
  2. Representation on the board shall be fairly spread among the counties included within the boundaries of the district. Each county with more than fifteen (15) landowners owning land within the boundaries of the district shall be entitled to at least one (1) director.
  3. The exact number of directors shall be specified in the petition filed with the state soil conservation committee for the creation of the district.
    1. Membership on the board may be staggered in the manner as set forth in such petition. Each director shall serve for a period of six (6) years and until such director's successor is duly elected and qualified.
      1. The bylaws of the board of directors shall establish the manner in which the directors shall be appointed or reappointed following such initial six-year term. The bylaws, at a minimum, shall:
        1. Provide for representation on the board to be fairly spread among the counties included within the boundaries of the district; and
        2. Designate which county or municipal officials shall be the appointing authorities.
      2. A public hearing shall be held on the proposed bylaws or any amendments to the bylaws. Prior to the public hearing, publication shall be made for two (2) consecutive weeks in a newspaper of general circulation published in each county within the boundaries of the district as to the date, time and purpose of the hearing.
      3. The bylaws, and any amendments to the bylaws, shall be filed with the county clerk of each county within the boundaries of the watershed district.
  4. Directors shall serve without compensation, but shall be allowed actual and necessary expenses incurred in the performance of their actual duties.
  5. Vacancies shall be filled by the remaining members, or by petition of five percent (5%) of the landowners. The county legislative body or chancery court may fill such vacancies if the remaining members fail to act within ninety (90) days after such vacancy occurs.

Acts 1955, ch. 112, § 15; T.C.A., § 70-1822; impl. am. Acts 1984, ch. 687, § 3; Acts 1997, ch. 103, § 1; T.C.A. § 69-7-122.

69-6-123. Election of directors — Failure of board to perform duties — Election of new board.

  1. Within thirty (30) days after the permanent boundaries of the district are established as prescribed in §§ 69-6-119 — 69-6-121, an election shall be held for the election of directors. Notice of this election shall be given at least ten (10) days prior to the date of the election by one (1) publication in a newspaper of general circulation in each of the counties of which the district is a part. Such election shall be by ballot, and shall be conducted in the same manner as prescribed in §§ 69-6-106 — 69-6-110. Subsequent elections shall be called by the board from time to time as membership on the board shall expire.
    1. In the event the board of directors fails or refuses to take steps to proceed with the promotion of watershed district activities, or fails to take steps to effectuate the purposes for which the district was organized, or fails to hold two (2) consecutive quarterly board meetings as required by § 69-6-124, five percent (5%) of the qualified voters of the watershed district may petition the county legislative bodies of the counties having lands within the district to elect a new board.
    2. The petition may be filed with the county clerk of any county having lands within the district. Such petition shall be presented to the next regular or special meeting of the county legislative body, and such county legislative body shall proceed to consider the merits of the petition and if a majority of the members present vote to sustain the petition, the county legislative body shall proceed to elect successors to the members of the board residing in that county.
    3. The county clerk of that county shall then certify a copy of the petition to each of the other counties having lands in the district and, at the next special or regular meeting of the county legislative bodies of such counties, it shall be mandatory that such county legislative bodies elect successors to the members of the board residing in the respective counties.
  2. The action of the county legislative body in which the petition is first filed determining whether the petition should be sustained shall be final and conclusive and is not be subject to review by any court.
  3. The incumbent board members shall be ineligible to be elected to the new board. The new board members shall serve during the unexpired terms of their predecessors.
  4. In the event a petition is rejected by any county, a similar petition shall not be entertained by any county within the district for a period of one (1) year after such rejection.

Acts 1955, ch. 112, § 15; 1961, ch. 342, § 1; impl. am. Acts 1978, ch. 934, §§ 7, 22, 36; T.C.A., § 70-1823; T.C.A. § 69-7-123.

69-6-124. Board meetings — Executive sessions prohibited.

  1. Regular meetings of the board of directors shall be held quarterly at the offices of the corporation on such day as is selected by the board. Notice of such meeting shall be mailed to each director at least five (5) days prior to the date of the meeting, and special meetings may be held at any time upon waiver of notice of a meeting by all directors, or may be called by the president or any two (2) directors at any time.
  2. A majority of the directors constitutes a quorum for the transaction of business.
  3. Each meeting of the board, whether regular or special, is open to the public, and the board shall at no time go into executive session.
  4. Watershed districts are authorized to compensate each member of the board a reasonable amount for attending any meeting of such board. Such compensation shall not exceed the rate at which county commissioners of the county in which the watershed district is headquartered are compensated for attending county commission meetings. Compensation shall be paid out of funds available to the watershed district and not otherwise appropriated.

Acts 1955, ch. 112, § 16; T.C.A., § 70-1824; Acts 1991, ch. 109, § 1; T.C.A. § 69-7-124.

69-6-125. Employment of counsel.

The directors of a watershed district are authorized to employ attorneys to assist in all matters relating to the affairs of the district, including preliminary matters necessary for the establishment of the district. The cost of such legal services shall be an obligation of the district and paid in the same manner as the expenses of the district.

Acts 1955, ch. 112, § 17; T.C.A., § 70-1825; T.C.A. § 69-7-125.

69-6-126. Contribution by county, city or town — Tax levy.

The county legislative body of any county, any part of which is located within a watershed district, or the governing body of any city or town within, adjacent to or in the proximity of a watershed district, has the right to contribute, out of the general fund of such county or city, such amount as such legislative body sees fit, to be used in the preliminary expenses of the district, or in the maintenance of the district, or for capital improvements or projects of the district. County legislative bodies and governing bodies of cities or towns are empowered to levy and collect ad valorem taxes for the purpose of contributing to a watershed district, which are hereby declared to be for municipal and county public purposes.

Acts 1955, ch. 112, § 18; impl. am. Acts 1978, ch. 934, §§ 7, 36; T.C.A., § 70-1826; T.C.A. § 69-7-126.

69-6-127. District by mutual agreement.

The landowners may provide for the establishment of a watershed district upon their own lands and at their own expense by mutual agreement in writing duly signed, acknowledged and filed with the county clerk.

Acts 1955, ch. 112, § 19; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A., § 70-1827; T.C.A. § 69-7-127.

69-6-128. Merger of districts.

Watershed districts may be merged or consolidated by the unanimous vote of the board of directors of such districts, concurred in by a majority of the voters of each district in an election conducted as provided in §§ 69-6-10669-6-110. Such resolutions shall be recorded in the register's office in every county having lands within such merged or consolidated district.

Acts 1955, ch. 112, § 20; T.C.A., § 70-1828; T.C.A. § 69-7-128.

69-6-129. District projects or improvements — Petition — Bond.

    1. Before any contract is let or work begun upon any plan, improvement or project within the district, the cost of which, excepting rights-of-way and maintenance, is to be financed by special assessments, by obligations of the district, or by any method of deferred payments, and not exclusively financed by funds on hand, grants in aid, or gifts to the district, there shall be filed by the board of directors of the district in the county court of the county in which the lands embraced in such district are located or in the event the district covers more than one (1) county, in the county court of the county in which the greatest number of acres of land in the district is situated, a petition describing in detail:
      1. Such work plan or project;
      2. Its scope and geographical location, including starting point, route and terminus;
      3. The tracts of land considered to be benefited and in what proportion or ratio, if all of the lands in the district are not benefited by the plan or project;
      4. The estimated cost of the project;
      5. The economic feasibility of the plan or project; and
      6. The proposed method of financing the costs of the plan or project.
    2. The petition shall be accompanied by a general plat and general specifications for the plan or project contemplated.
  1. A cost or prosecution bond shall be required as in other cases in such court.

Acts 1955, ch. 112, § 21; T.C.A., § 70-1829; T.C.A. § 69-7-129.

Compiler's Notes. The county court structure referred to in this chapter was abolished by the 1978 amendments to Tenn. Const. arts. VI and VII. Legislative functions formerly exercised by county courts now belong to county legislative bodies. Judicial functions now belong to general sessions, chancery, or circuit courts. See also § 69-5-102.

69-6-130. Hearing on petition — Publication of notice — Objections.

  1. Upon the filing of a project petition, the court in which the petition is filed shall set a day for the hearing and direct that publication be made as to all landowners, lienholders, encumbrancers, mortgagees, occupants, or other persons interested in any way in the lands to be affected by the proposed improvement in some newspaper of general circulation published in each county in which are located lands affected by the proposed project, the publications to be run once a week for three (3) consecutive weeks, the last of which shall be at least ten (10) days before the date set for the hearing.
  2. Such publication shall:
    1. Notify the interested persons and landowners of the general nature and scope of the proposed project, the estimated cost of the project, the proposed method for the payment of the cost and the time and place of the hearing, and shall notify them to appear and show cause why such project should not be approved and performed and the cost provided or apportioned in accordance with the prayer of the petition; and
    2. Set forth the names of the owners of the lands in the area affected by the proposed project to the best of the information and belief of the board, but such publication need not set forth the names of the persons concerned other than as owners of the lands affected.
  3. The notice of publication shall have the same force and effect upon concerned non-landowners as landowners whether they are specifically named or not, and whether they are residents or nonresidents of the state of Tennessee, for all purposes of the proceedings as process would have, if such process were issued from a court and served personally upon the defendants, named or unnamed, by a qualified officer of the law.
  4. The landowners or other interested persons shall make their appearance in person or by attorney on or before the time set for such hearing and file in writing any objections that they may have to such proposed project or the proposed method of financing such project.

Acts 1955, ch. 112, § 21; T.C.A., § 70-1830; T.C.A. § 69-7-130.

69-6-131. Matters to be determined at hearing — Appeal.

  1. At the time and place set for such hearing, or at any subsequent date to which such hearing may be adjourned by order of court, the court shall proceed to hear proof and determine by decree:
    1. The soundness and economic feasibility of the proposed plan or project;
    2. The probable cost of the project;
    3. The benefits to be derived from the proposed project, and whether such benefits are manifestly in the best interest of the lands affected;
    4. Whether these benefits will be conferred generally upon all of the lands of the district, or upon only certain lands in the district, in the latter event the lands calculated to be benefited shall be described as to acreage, boundaries and ownership; and
    5. The recommended method of financing the cost of the project, whether by some general obligation of the district to be defrayed by revenues from the project or work, or by ad valorem tax to be levied by special act of the general assembly upon all of the lands of the district in case all of the lands are benefited generally by such project, or by special assessment against the lands benefited by the proposed improvement.
  2. Any landowner or other interested party aggrieved by the watershed improvement decree of the court has the same right of appeal as provided to any other litigant in the court or to any interested party in connection with any court decree affecting them as provided under the drainage laws of Tennessee, compiled in chapter 5 of this title.

Acts 1955, ch. 112, § 21; T.C.A., § 70-1831; T.C.A. § 69-7-131.

NOTES TO DECISIONS

1. Charge to Jury.

Failure of court to submit issue relative to method of financing in exact language of the statute was not reversible error where there was no suggestion by counsel that the court's charge need be clarified and there was no showing that party was prejudiced by the instruction given. Rush v. Lick Creek Watershed Dist., 50 Tenn. App. 28, 359 S.W.2d 582, 1962 Tenn. App. LEXIS 140 (Tenn. Ct. App. 1962).

Failure of trial court to instruct jury to return a separate and distinct verdict on each of the issues set forth in this section did not amount to an abuse of discretion where parties made no objection to trial judge's statement that a general verdict would be returned and neither party requested the court to instruct the jury to render a special verdict on each issue. Rush v. Lick Creek Watershed Dist., 50 Tenn. App. 28, 359 S.W.2d 582, 1962 Tenn. App. LEXIS 140 (Tenn. Ct. App. 1962).

69-6-132. Revenue bonds.

If the cost of the proposed improvement is to be paid from the proceeds of revenue bonds of the district, the county legislative body may authorize the issuance of the necessary revenue bonds, in accordance with title 9, chapter 21, with respect to a local government.

Acts 1955, ch. 112, § 22; T.C.A., § 70-1832; Acts 1988, ch. 750, § 70; T.C.A. § 69-7-132.

69-6-133. Appointment of commissioners.

If the cost of the proposed improvement is to be raised by special assessment upon the lands to be benefited by the project, the court shall appoint three (3) commissioners who shall be disinterested financially in such proposed project.

Acts 1955, ch. 112, § 23; T.C.A., § 70-1833; T.C.A. § 69-7-133.

69-6-134. Report of benefits and costs.

  1. The commissioners shall study the plans for the proposed improvement and the cost of the same. They shall then go upon the lands within the district for the purpose of determining to what extent and in what proportion the lands affected by such project will be benefited accordingly. They will apportion the cost of the proposed project, including the cost of maintenance, for a period of not more than twenty (20) years among the lands benefited; except that maintenance costs shall be provided for throughout the period during which the credit of the district is pledged, or special assessments or taxes levied for the use and benefit of any project.
  2. The commissioners shall report their actions in writing to the court, and in the report they shall set forth in detail their conclusions and findings, listing the lands benefited by the names of their owners, acreage and description and the lump sum assessment for benefits against each tract of land, if such assessment were paid in cash, and also, the amount of the annual assessments required upon each tract, if the cost is to be defrayed by bonds or other obligations of the district for the period of years over which such bonds or obligations are payable. The proposed assessment shall also include interest and other costs in connection with such bonds or obligations.

Acts 1955, ch. 112, § 23; T.C.A., § 70-1834; T.C.A. § 69-7-134.

69-6-135. Hearing on report — Notice — Objections — Decree — Restriction on assessments.

  1. When the commissioners have filed their written report, including the proposed assessment for benefits upon the lands benefited by the project, the court shall set a date for the hearing of the matter upon the report of the commissioners and direct that publication be made for all landowners and other persons interested in the lands to be affected by the proposed improvement in some newspaper of general circulation in each county in which are located lands affected by the proposed improvement. This publication shall be once a week for three (3) consecutive weeks, the last publication to be at least ten (10) days before the date set for the hearing. The publication shall notify all known landowners and other interested persons generally without being named of the hearing of the report of the commissioners apportioning the cost of the proposed plan, the improvement or project between the lands benefited in proportion to such benefits and setting out the proposed assessments against each tract of land benefited. In addition, the publication should notify such landowners or other interested parties of the time and place of such hearing, when and where they should appear, and show cause why the report of the commissioners should not be approved, and why the assessment should not be levied upon the lands to create the funds necessary for such proposed improvement.
  2. The landowners or other interested persons shall make their appearance and file their objections, if any, in writing on or before the time fixed for such hearing.
  3. At the time and place fixed for such hearing, the court shall proceed to consider the report of the commissioners and any exceptions or objections filed, as well as any proof offered in support of the exceptions or objections or in support of the commissioners' report. Whereupon, the court will sustain or overrule each of the exceptions or modify or amend the proposed assessment to which such exception or objection was filed. The court will then either reject or accept the report of the commissioners and ratify it with or without modifications or amendments in regard to the proposed assessments.
  4. If the court shall accept and ratify the report of the commissioners, either with or without modifications, the court will then by decree proceed to make or levy an assessment for the amount determined upon the respective tracts of land to be benefited by the project in proportion to such benefits; provided, that in watershed districts of a size of two hundred fifty thousand (250,000) acres, or larger, no tract of land shall be assessed for such benefits in an amount in excess of twenty-five percent (25%) of its assessed valuation for county taxation.

Acts 1955, ch. 112, § 23; 1959, ch. 53, § 1; T.C.A, § 70-1835; T.C.A. § 69-7-135.

69-6-136. Appeal.

Any person aggrieved may appeal from the decision or the decree of the court in making or levying the assessment or refusing to make or levy the assessment. The appeal is made in the same manner as the appeal of any other case in such court or as provided in chapter 5 of this title.

Acts 1955, ch. 112, § 23; T.C.A., § 70-1836; T.C.A. § 69-7-136.

69-6-137. Enforcement of assessments — Issuance of bonds.

  1. The assessment made or levied for watershed improvement shall be a lien on the respective tracts of land upon which it is assessed, and this lien shall be enforced in the same manner as provided for the enforcement of the lien for drainage assessment under chapter 5 of this title, which is incorporated in this section by reference. In no event shall watershed improvement assessment be deemed to be the personal obligations of the landowners.
  2. The court may authorize the issuance of bonds by the district to cover the cost of the project, for the payment of which bonds the assessments upon the lands benefited by the project may be pledged. The terms and conditions of the bonds, as well as their schedule of payment, shall be fixed by the court, but in no event shall the date of the maturity of the final payment under such bond schedule exceed thirty (30) years after the date of issue.

Acts 1955, ch. 112, § 23; 1969, ch. 258, § 1; T.C.A., § 70-1837; T.C.A. § 69-7-137.

69-6-138. Assessment book — Certification to trustees.

As soon as the assessment has been made, the court will fix the date or dates upon which such assessment and/or the annual installments of the same shall be payable. Whereupon, the county clerk shall make out an assessment list or book for the trustee of each county in which are located lands so assessed for benefits, giving alphabetically the name of the owner, the boundaries of each tract, the number of acres in each tract and the amount assessed against each tract, including the annual installments in which such assessments are payable, if the full assessments be not paid in cash. Such book or list shall be in substantially the form used for county tax books. When such lists or books have been completed, the clerk shall certify the same to the trustee or trustees of the counties in which the lands so assessed are located.

Acts 1955, ch. 112, § 24; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A., § 70-1838; T.C.A. § 69-7-138.

Cross-References. Drainage assessment book, §§ 69-5-813, 69-5-926, 69-5-1104.

Special assessment book, § 7-32-129.

NOTES TO DECISIONS

1. In General.

This section is quite explicit concerning the requirement that the assessment list or book be furnished by the clerk of the court to the trustee of each county in which the lands are located. Weakley County v. Odle, 654 S.W.2d 402, 1983 Tenn. App. LEXIS 586 (Tenn. Ct. App. 1983).

69-6-139. Collection of assessments — Quarterly settlement — Commission.

  1. The trustee of each county in which lands so assessed are located shall collect such assessments upon the dates designated by the court and shall make settlement quarterly with the treasurer of the district for such collections.
  2. The trustee shall be entitled to a commission of one percent (1%) of such collections for such trustee's services.

Acts 1955, ch. 112, § 25; T.C.A., § 70-1839; T.C.A. § 69-7-139.

69-6-140. Delinquent assessments.

In the event assessments become delinquent, §§ 69-5-81769-5-829 shall be applied, and the same are incorporated in this section by reference as fully and completely as if copied.

Acts 1955, ch. 112, § 26; T.C.A., § 70-1840; T.C.A. § 69-7-140.

69-6-141. Treasurer's bond.

In the event of special assessments, the treasurer of the district shall be bonded at the expense of the district by a reputable and responsible corporate surety in an amount determined by the court, or as otherwise provided by law.

Acts 1955, ch. 112, § 26; T.C.A., § 70-1841; T.C.A. § 69-7-141.

69-6-142. Annual financial review.

  1. The board of directors of each district shall cause an annual financial review of the district's receipts, disbursements, and balances to be made of the books and records of the district. The department of agriculture shall be responsible for determining that the annual financial reviews are made in accordance with procedures prescribed by the department of agriculture.
  2. The annual financial reviews shall be made by representatives appointed by the district's board of directors. If the governing body of the district fails or refuses to have the annual financial review made, then the department of agriculture may appoint a certified public accountant, or direct its department to make the annual financial review, the cost of such review to be paid by the district.
  3. The comptroller of the treasury may require an audit or investigation of a district if the comptroller believes it is necessary to ascertain or correct errors, irregularities, or defaults in the management and disbursement of funds controlled by the district, to be conducted by the department of audit or a certified public accountant approved by the comptroller; provided, that the comptroller or certified public accountant may also charge the district for such an audit.
  4. Each district shall prepare and submit a report regarding the annual financial review of its business affairs and transactions to the department of agriculture, the state soil conservation committee, and the comptroller of the treasury.

Acts 1955, ch. 112, § 27; T.C.A., § 70-1842; Acts 1984, ch. 794, § 14; 1993, ch. 271, § 1; T.C.A. § 69-7-142; Acts 2012, ch. 573, § 1; 2014, ch. 489, § 1.

Cross-References. Minimum standards for audits, § 4-3-304.

69-6-143. Letting of contracts.

  1. A written contract shall be entered into between the board of directors of the district and the successful bidder, after due advertisement for bids as is required in case of contracts for public improvements, in connection with each work plan or project of the district, the cost of which other than rights-of-way and maintenance is to be borne by the district or landowners in the district.
  2. If the project and method of financing have been approved by the court, the contract shall be submitted to and approved by the court prior to the commencement of the plan, improvement, or project.

Acts 1955, ch. 112, § 28; T.C.A., § 70-1843; T.C.A. § 69-7-143.

69-6-144. Ad valorem tax by general assembly.

In addition to the methods of financing authorized in this chapter, administrative costs of the district as well as the cost of any general plan, improvement, project, program or work benefiting all lands in the district generally may be financed by an ad valorem tax levied by special or private acts of the general assembly upon all the lands in the district.

Acts 1955, ch. 112, § 29; T.C.A., § 70-1844; T.C.A. § 69-7-144.

69-6-145. Collection of ad valorem taxes — Commission — Delinquent taxes.

  1. Ad valorem taxes would be collected by the trustee of the county in which the lands are located, in the same manner and at the same time in which other county taxes upon such lands within the watershed district are collected.
  2. The trustee is entitled to a commission of one percent (1%) upon the ad valorem taxes so collected as a commission for such trustee's services. The trustee shall account quarterly to the treasurer of the district for the ad valorem taxes so collected.
  3. Ad valorem taxes are a lien upon the lands embraced in a watershed district as are county taxes and shall be collected by suit in the same manner as other county taxes, if the same are not paid to the trustee in due course. They shall become delinquent at the same time and in the same manner as county taxes.

Acts 1955, ch. 112, § 29; T.C.A., § 70-1845; T.C.A. § 69-7-145.

69-6-146. Right of entry on private property.

The board of directors, its representatives and employees, including engineers and contractors and their employees, have the right and authority to enter upon private lands within or without the boundaries of the district for the purpose of conducting tests, surveys and other work incidental to the preparation of plans, maps, profiles and reports in connection with any work or proposed work of the district, and the district shall be liable for any damages caused by such entry.

Acts 1955, ch. 112, § 30; T.C.A., § 70-1846; T.C.A. § 69-7-146.

69-6-147. Assessments for maintenance.

  1. It is the duty of the board of directors to properly maintain any project constructed and operated within the district.
    1. The board, or landowners owning five percent (5%) of the acreage affected by any project, may petition the court in which such plan or project was approved to levy additional assessments for the proper maintenance or operation, or both, of such project or improvement, as may appear to the court to be necessary, the apportionment of such maintenance expense to be upon the tracts benefited by the original project in the ratio or proportion established in the original assessment roll.
    2. In the case of any improvement or project benefiting all of the lands in the district generally, the court may order the board to have the proper maintenance or repair work, or both, accomplished, and order the same to be paid from the funds of the district in the hands of the treasurer that are not obligated for any other purpose.
  2. A special assessment for maintenance is a lien upon the respective tracts of land and is collected in the same manner as assessments for benefits as provided in this chapter.

Acts 1955, ch. 112, § 31; T.C.A., § 70-1847; T.C.A. § 69-7-147.

69-6-148. Dissolution of district.

  1. A watershed district may be dissolved in the same way and manner as provided for general welfare and nonprofit corporations as set out in title 48, chapters 51-68. The watershed district shall file a true and correct copy of the dissolution with the state soil conservation committee.
  2. In addition, the watershed district shall be dissolved by operation of law at the expiration of ten (10) years in the event that none of the corporate powers bestowed upon such corporations by this chapter are used. In the event a watershed district is dissolved under this subsection (b), the chair of the state soil conservation committee shall file a notice of dissolution with the secretary of state and upon such filing the watershed district shall no longer be deemed to exist. The chair of the state soil conservation committee shall file a true and correct copy of the notice of dissolution with the register of deeds of the county or counties in which the watershed district is located.

Acts 1955, ch. 112, § 32; modified; T.C.A., § 70-1848; T.C.A. § 69-7-148; Acts 2012, ch. 573, §§ 2, 3.

69-6-149. Provisions supplemental.

This chapter is deemed to be supplemental to existing laws relating to drainage districts, flood control, irrigation, soil conservation, and related matters.

Acts 1955, ch. 112, § 33; T.C.A., § 70-1849; T.C.A. § 69-7-149.

69-6-106. Determination of sufficiency — Notice to acting chair.

Chapter 7
Water Management

Part 1
Water Resources Division

69-7-101. Water resources division created — Appointment of director and assistants.

  1. There is hereby created and established within the department of environment and conservation a division to be known as the water resources division.
  2. The commissioner of environment and conservation shall, with the approval of the governor, appoint a director of the water resources division, who shall be known as the director of the water resources division, and such other professional and clerical assistants as may be required to discharge the duties imposed under this part upon the division.
  3. The director of the water resources division shall be a registered professional engineer or have administrative experience and training or experience in the general field of water resources and hydraulics.

Acts 1957, ch. 19, § 3; impl. am. Acts 1959, ch. 9, § 11; impl. am. Acts 1963, ch. 169, § 3; 1972, ch. 860, § 1; T.C.A., § 70-2001; T.C.A. § 69-8-101.

Compiler's Notes. For transfer of the bureau of environment in the department of health and its related functions and the administration of the Tennessee environmental statutes (excluding title 68, chs. 14, 110 and 112) from the department of health to the department of conservation and environment, see Executive Order No. 42 (February 4, 1991).

Law Reviews.

Water Rights in Tennessee (Mahlon L. Townsend), 27 Tenn. L. Rev. 557.

69-7-102. General duties of director.

The director of the water resources division is responsible to the commissioner of environment and conservation for the general direction of all matters pertaining to conservation, protection and development of the water resources of the state and the continued study of water resources looking toward the creation and development of a basic, long-range water resource policy for the state, with the exception of the functions relating to the water pollution control exercised by the Tennessee water pollution control board, and such other functions as may otherwise be provided in this part.

Acts 1957, ch. 19, § 4; impl. am. Acts 1959, ch. 9, § 14; impl. am. Acts 1963, ch. 169, § 3; 1972, ch. 860, § 2; T.C.A., § 70-2002; T.C.A. § 69-8-102.

69-7-103. Specific powers and duties of director.

The powers and duties of the director of water resources division under the direction of the commissioner of environment and conservation include, among other things, the powers and duties to:

  1. Establish, maintain, and publish, as directed by the commissioner, an accurate inventory of the state's water resources;
  2. Determine, maintain and establish estimates of existing and future water use in the state;
  3. Define and propose, if necessary, water control districts within the state in the light of the director's findings, and make engineering plans and surveys for improving the quantity of the water supply in such proposed water control districts;
  4. Implement the basic water resource policy of the state by creating and defining the rights of respective competing users of the water resources of the state;
  5. Perform all duties assigned to the director relating to the determination of the waters that should be reserved for general public purposes, including navigation, sanitation, recreation, maintenance of fish and aquatic life, the maintenance of unusual scenic features and other public purposes;
  6. Determine the feasibility of proposed dams and water diversion structures to conserve the basic water resources of the state and review and recommend plans for any such proposed dams and diversion structures in any proposed water control districts; and
  7. Perform any other duties required by the terms of this part, or as may reasonably be required by the commissioner and the commission in relation to this part.

Acts 1957, ch. 19, § 5; impl. am. Acts 1959, ch. 9, § 11; impl. am. Acts 1963, ch. 169, § 3; 1972, ch. 860, § 2; T.C.A., § 70-2003; T.C.A. § 69-8-103.

Law Reviews.

Tennessee Water Law, You Never Miss the Water Till the Well Runs Dry (Vincent A. Sikora), 24 No. 5 Tenn. B.J. 12 (1988).

69-7-104. Term of employment — Compensation.

The director of water resources division and such professional and clerical assistants as may be employed serve at the pleasure of the commissioner and their compensation is fixed and determined by the commissioner with the approval of the governor.

Acts 1957, ch. 19, § 6; impl. am. Acts 1959, ch. 9, § 11; impl. am. Acts 1963, ch. 169, § 3; Acts 1972, ch. 860, § 2; T.C.A., § 70-2004; T.C.A. § 69-8-104.

Part 2
Inter-basin Water Transfers

69-7-201. Short title.

This part shall be known as the “Inter-basin Water Transfer Act.”

Acts 2000, ch. 854, § 2; T.C.A. § 69-8-201.

69-7-202. Legislative findings — Purpose.

The general assembly finds that as the population and demand for water resources grow, it is prudent to engage in planning for the future and to have an explicit mechanism in place to regulate proposals for the diversion of water from one river basin to another. By removing water from rivers, such inter-basin transfers raise issues of the protection of the public health, safety, welfare and the environment as the water is no longer available for use in the original stream. The primary purpose of this part is to allow regulation on the basis of the quantity of water in river basins. Although the common law addresses some of these concerns, it relies on after-the-fact litigation rather than a modern regulatory system. As this is remedial and police power legislation, all sections of this part shall be liberally construed to effectuate its purpose.

Acts 2000, ch. 854, § 3; T.C.A. § 69-8-202.

69-7-203. Definition of basin and river basin.

For purposes of this part, “basin” or “river basin” refers to the entire topographic extent of the following ten (10) watersheds and combinations of watersheds:

  1. The Mississippi River and all of its tributaries west of the Tennessee River Valley;
  2. The Duck River, the Elk River, and the western Tennessee River Valley;
  3. The lower Cumberland River to the downstream point of the mouth of the Caney Fork River, the Harpeth and the Stones rivers;
  4. The tributaries of the Barren River;
  5. The upper Cumberland River, the Caney Fork, the Obed, and the Big South Fork of the Cumberland River;
  6. The lower Tennessee River in East Tennessee up to and including the Hiawassee River;
  7. The Conasauga River;
  8. The Upper Tennessee River in East Tennessee upstream of the Hiawassee, the Little Tennessee, the Clinch, and the Emory rivers;
  9. The French Broad River and the Nolichuckey River; and
  10. The Holston River and the Watauga River.

Acts 2000, ch. 854, § 4; T.C.A. § 69-8-203.

69-7-204. Acquisition of permit — Determination of amount of existing inter-basin transfer.

  1. All persons or entities:
    1. That have been granted powers by the state to acquire water, water rights and associated property by eminent domain or condemnation; or
    2. That acquire or supply water for the use or benefit of public water supply systems as defined in § 68-221-703,

      shall, when proposing a new or increased withdrawal of surface water or ground water for the purpose of transferring or diverting, or both, some or all of it out of a river basin either directly or through one (1) or more intermediaries, first apply for and obtain a permit from the commissioner of environment and conservation, or the commissioner's designee, prior to such diversion or transfer; provided, that in the case of ground water withdrawal, this section shall only apply if the loss of the ground water has a significant potential to adversely affect the flow of a Tennessee surface water.

  2. For purposes of determining the amount of an existing inter-basin transfer under this section, it is the average daily amount calculated for the highest continuous 90-day period between January 1, 1997, and December 31, 1999; provided, that nothing whatsoever in this section shall apply to existing withdrawals by entities described above except that such persons or entities shall be subject to this section when proposing to:
    1. Increase the amount of water withdrawn, when some or all of the water will be transferred to a different river basin; or
    2. Locate a new intake for withdrawal, when some or all of the water will be transferred to a different river basin.
  3. All persons or entities that are issued a permit under subsection (a) shall operate the withdrawal activity in accordance with all terms and conditions of the permit.

Acts 2000, ch. 854, § 5; T.C.A. § 69-8-204.

69-7-205. Powers of commissioner of environment and conservation.

In addition to powers under all other statutes, including, but not limited to, the Water Quality Control Act, compiled in chapter 3, part 1 of this title, and the Safe Drinking Water Act, compiled in title 68, chapter 221, part 7, the commissioner of environment and conservation, or the commissioner's designee, shall have the following powers and duties under this part:

  1. To issue and to deny inter-basin transfer permits in accordance with § 69-7-206;
  2. To issue civil penalty assessments in accordance with § 69-7-208;
  3. To conduct inspections and investigations;
  4. To bring suit in the name of the department for any violation of this part, including seeking any remedy available under this part as well as under any other statutory or common law remedy related to water availability and supply;
  5. To require the submission of plans, specifications, technical reports, and any other information the commissioner deems necessary to carry out this part;
  6. To delegate any of the commissioner's duties to the director of the appropriate division under the commissioner's supervision; and
  7. To be the primary administrative agent in carrying out this part.

Acts 2000, ch. 854, § 6; T.C.A. § 69-8-205.

69-7-206. Issuance and denial of permit. [Current version. See second version of section and its Compiler’s Notes.]

  1. The commissioner shall issue or deny any permit applied for pursuant to § 69-7-204 in accordance with this part and the rules adopted by the board of water quality, oil and gas under § 69-7-207 and any applicable provisions of the Water Quality Control Act, compiled in chapter 3, part 1 of this title, and rules under that act. Such permits shall be issued for a renewal term of five (5) years and contain necessary and appropriate conditions to accomplish the purposes of the same part and rules.
  2. The commissioner shall, to the maximum extent feasible, combine the permit application and issuance processes for a withdrawal activity that requires permits under this part and the Water Quality Control Act.
  3. The commissioner may revoke, suspend, or modify any permit for the following reasons:
    1. A violation of any terms or conditions of the permit or of any provision of this part;
    2. Obtaining the permit by misrepresentation or failing to disclose fully all relevant facts; or
    3. A change in any condition that requires either a temporary or permanent reduction or elimination of the permitted inter-basin transfer because of reasonably likely adverse impacts to downstream users or the environment.
  4. Any person aggrieved by the issuance or denial of a permit by the commissioner under this part may appeal such matter to the board of water quality, oil and gas solely in accordance with § 69-7-207(3).

Acts 2000, ch. 854, § 7; T.C.A. § 69-8-206; Acts 2005, ch. 325, § 1.

Compiler's Notes. Acts 2005, ch. 325, § 3 provided that the amendment of subsection (d) shall only apply to permit applications filed after June 7, 2005.

Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

69-7-206. Issuance and denial of permit. [Contingent amendment. See first version of section and Compiler’s Notes.]

  1. The commissioner shall issue or deny any permit applied for pursuant to § 69-7-204 in accordance with this part and the rules adopted by the board of energy and natural resources under § 69-7-207 and any applicable provisions of the Water Quality Control Act, compiled in chapter 3, part 1 of this title, and rules under that act. Such permits shall be issued for a renewal term of five (5) years and contain necessary and appropriate conditions to accomplish the purposes of the same part and rules.
  2. The commissioner shall, to the maximum extent feasible, combine the permit application and issuance processes for a withdrawal activity that requires permits under this part and the Water Quality Control Act.
  3. The commissioner may revoke, suspend, or modify any permit for the following reasons:
    1. A violation of any terms or conditions of the permit or of any provision of this part;
    2. Obtaining the permit by misrepresentation or failing to disclose fully all relevant facts; or
    3. A change in any condition that requires either a temporary or permanent reduction or elimination of the permitted inter-basin transfer because of reasonably likely adverse impacts to downstream users or the environment.
  4. Any person aggrieved by the issuance or denial of a permit by the commissioner under this part may appeal such matter to the board of energy and natural resources solely in accordance with § 69-7-207(3).

Acts 2000, ch. 854, § 7; T.C.A. § 69-8-206; Acts 2005, ch. 325, § 1; 2018, ch. 839, §§ 35, 36.

Compiler's Notes. Acts 2005, ch. 325, § 3 provided that the amendment of subsection (d) shall only apply to permit applications filed after June 7, 2005.

Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment substituted “board of energy and natural resources” for “board of water quality, oil and gas” in the first sentence in (a) and in (d).

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

69-7-207. Duties and powers of board of water quality, oil and gas. [Current version. See second version of section and its Compiler’s Notes.]

In addition to powers under all other statutes, including, but not limited to, the Water Quality Control Act, compiled in chapter 3, part 1 of this title, and the Safe Drinking Water Act, compiled in title 68, chapter 221, part 7, the board of water quality, oil and gas, created by § 69-3-104, has the following powers and duties under this part:

  1. To promulgate rules to be effective by October 1, 2000, to effectuate the purposes of this part including, but not limited to:
    1. Defining necessary terms;
    2. Setting criteria for permit issuance and denial as well as for permit conditions, taking into account all appropriate factors including, but not limited to, existing uses downstream of a proposed withdrawal, low flow conditions, classified uses of the stream under the Water Quality Control Act, climatic conditions, alternatives to the proposed withdrawal, the number of downstream river miles from which water will be diverted as a result of the transfer, quantity of a proposed withdrawal, and quantity and location of water returned;
    3. Establishing procedures for permit issuance, including application fees for permits under this part, categories of withdrawals for which general permits would be appropriate, requirements for public notice, including notice to potentially affected communities and water users and notice to the public of receipt of a permit application within thirty (30) days of receipt, and opportunity for public comment and public hearings;
  2. To hear appeals from assessments of civil penalty assessments; and
  3. To hold a contested case hearing concerning the commissioner's issuance or denial of a permit, upon receiving a petition for permit appeal. During this hearing, the board shall review the commissioner's permit decision and may reverse or modify the decision upon finding that it does not comply with any provisions of this part. A petition for permit appeal may be filed pursuant to this subdivision (3) by the permit applicant, or by any aggrieved person who participated in the public comment period or gave testimony at a formal public hearing, whose appeal is based upon any of the issues that were provided to the commissioner in writing during the public comment period or in testimony at a formal public hearing on the permit application. Any petition for permit appeal under this subdivision (3) shall be filed with the board within thirty (30) days after public notice of the commissioner's decision to issue or deny the permit. Notwithstanding §§ 4-5-223 or 69-3-118(a), or any other law to the contrary, this subdivision (3) shall be the exclusive means for obtaining administrative review of the commissioner's issuance or denial of a permit.

Acts 2000, ch. 854, § 8; T.C.A. § 69-8-207; Acts 2005, ch. 325, § 2.

Compiler's Notes. Acts 2005, ch. 325, § 3 provided that the amendment of subdivision (3) shall only apply to permit applications filed after June 7, 2005.

Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

69-7-207. Duties and powers of board of energy and natural resources. [Contingent amendment. See first version of section and Compiler’s Notes.]

In addition to powers under all other statutes, including, but not limited to, the Water Quality Control Act, compiled in chapter 3, part 1 of this title, and the Safe Drinking Water Act, compiled in title 68, chapter 221, part 7, the board of energy and natural resources, created by § 69-3-104, has the following powers and duties under this part:

  1. To promulgate rules to be effective by October 1, 2000, to effectuate the purposes of this part including, but not limited to:
    1. Defining necessary terms;
    2. Setting criteria for permit issuance and denial as well as for permit conditions, taking into account all appropriate factors including, but not limited to, existing uses downstream of a proposed withdrawal, low flow conditions, classified uses of the stream under the Water Quality Control Act, climatic conditions, alternatives to the proposed withdrawal, the number of downstream river miles from which water will be diverted as a result of the transfer, quantity of a proposed withdrawal, and quantity and location of water returned;
    3. Establishing procedures for permit issuance, including application fees for permits under this part, categories of withdrawals for which general permits would be appropriate, requirements for public notice, including notice to potentially affected communities and water users and notice to the public of receipt of a permit application within thirty (30) days of receipt, and opportunity for public comment and public hearings;
  2. To hear appeals from assessments of civil penalty assessments; and
  3. To hold a contested case hearing concerning the commissioner's issuance or denial of a permit, upon receiving a petition for permit appeal. During this hearing, the board shall review the commissioner's permit decision and may reverse or modify the decision upon finding that it does not comply with any provisions of this part. A petition for permit appeal may be filed pursuant to this subdivision (3) by the permit applicant, or by any aggrieved person who participated in the public comment period or gave testimony at a formal public hearing, whose appeal is based upon any of the issues that were provided to the commissioner in writing during the public comment period or in testimony at a formal public hearing on the permit application. Any petition for permit appeal under this subdivision (3) shall be filed with the board within thirty (30) days after public notice of the commissioner's decision to issue or deny the permit. Notwithstanding §§ 4-5-223 or 69-3-118(a), or any other law to the contrary, this subdivision (3) shall be the exclusive means for obtaining administrative review of the commissioner's issuance or denial of a permit.

Acts 2000, ch. 854, § 8; T.C.A. § 69-8-207; Acts 2005, ch. 325, § 2; 2018, ch. 839, § 37.

Compiler's Notes. Acts 2005, ch. 325, § 3 provided that the amendment of subdivision (3) shall only apply to permit applications filed after June 7, 2005.

Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment substituted “board of energy and natural resources, created by § 69-3-104” for “board of water quality, oil and gas, created by § 69-3-104” in the introductory language.

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

69-7-208. Assessment of civil penalties.

  1. The commissioner may assess civil penalties for any violation of this part of up to ten thousand dollars ($10,000) per day per violation. In making such assessments, the commissioner shall consider all appropriate factors including, without limitation, whether the violation was knowing or intentional, any actual harm to people or the environment resulting from the violation or activity, the potential for harm to people or the environment posed by the violation or activity.
  2. Any civil penalty shall be assessed in the following manner:
    1. The commissioner may issue an assessment against any person or entity responsible for the violation; and
    2. Any person or entity against whom an assessment has been issued may secure a review of such assessment by filing with the commissioner a written petition setting forth the grounds and reasons for the objections, and asking for a hearing on the matter involved before the board. If a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final.
  3. All fees and penalties assessed and collected under this part shall be administered in the same manner as provided in the Environmental Protection Fund, compiled at title 68, chapter 203.

Acts 2000, ch. 854, § 9; T.C.A. § 69-8-208.

69-7-209. Exercise of grants of power.

Any exercise of the state's grants of power to acquire water, water rights, and associated property by eminent domain or condemnation, and for the use or benefit of public water supply, shall not be made in a manner that conflicts with the Water Quality Control Act, compiled in chapter 3, part 1 of this title, or this part and the regulations under this part.

Acts 2000, ch. 854, § 10; T.C.A. § 69-8-209.

69-7-210. Designation of protected areas. [Current version. See second version of section and its Compiler’s Notes.]

The board of water quality, oil and gas may, from time to time after giving due notice and conducting a public hearing, determine and delineate such basins or portions of basins where the demands upon supply made by water users have developed or threaten to develop to such a degree as to create a water shortage and any such areas may be designated as “protected areas.” The water quality control board, whenever it determines that such shortage no longer exists, shall terminate the protected status of such area and shall give public notice of such termination.

Acts 2000, ch. 854, § 12; T.C.A. § 69-8-210.

Compiler's Notes. Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

69-7-210. Designation of protected areas. [Contingent amendment. See first version of section and Compiler’s Notes.]

The board of energy and natural resources may, from time to time after giving due notice and conducting a public hearing, determine and delineate such basins or portions of basins where the demands upon supply made by water users have developed or threaten to develop to such a degree as to create a water shortage and any such areas may be designated as “protected areas.” The board of energy and natural resources, whenever it determines that such shortage no longer exists, shall terminate the protected status of such area and shall give public notice of such termination.

Acts 2000, ch. 854, § 12; T.C.A. § 69-8-210; Acts 2018, ch. 839, § 38.

Compiler's Notes. Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment substituted “board of energy and natural resources” for “board of water quality, oil and gas” and “water quality control board” wherever it appeared.

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

69-7-211. Submission of documents and records to commissioner of environment and conservation.

  1. Prior to October 1, 2000, all persons or entities subject to § 69-7-204(a) that operate an existing inter-basin transfer shall submit flow or pumping records or other documentation that shows to the commissioner of environment and conservation's satisfaction the amount of such transfer. The commissioner shall respond in writing stating whether the documentation was sufficient or specifying any deficiency that shall promptly be corrected. Any failure to comply with this section will constitute a violation of this part.
  2. All such persons or entities shall, thereafter, either submit every October 1 a statement under oath certifying that there has been no increase in the inter-basin transfer, together with appropriate documentation, or a timely permit application for any increased inter-basin transfer as provided in § 69-7-204.

Acts 2000, ch. 854, § 13; T.C.A. § 69-8-211.

69-7-212. Redesignation of personnel.

The department of environment and conservation may redesignate existing personnel to implement this chapter.

Acts 2000, ch. 854, §§ 14, 15; T.C.A. § 69-8-212.

Code Commission Notes.

Former subsection (b), concerning the deadline for a report regarding implementation of this part, was deleted as obsolete by the code commission in 2012.

Compiler's Notes. Acts 2012, ch. 604, § 20 purported to amend subsection (b). Subsection (b) was deleted as obsolete by the code commission in 2012; therefore, the amendment was not given effect.

Part 3
Tennessee Water Resources Information Act

69-7-301. Short title.

This part shall be known and may be cited as the “Tennessee Water Resources Information Act.”

Acts 2002, ch. 800, § 2; T.C.A. § 69-8-301.

Law Reviews.

Tennessee Water Law, You Never Miss the Water Till the Well Runs Dry (Vincent A. Sikora), 24 No. 5 Tenn. B.J. 12 (1988).

69-7-302. Legislative intent — System of registration.

The general assembly recognizes that in other states the withdrawal of ground water has caused the lowering of the ground water table and that there is potential for ground water or surface water withdrawals to impact water uses in Tennessee. Therefore, it is necessary and prudent to institute a system of registration so that adequate information is obtained to document current demand for water and to project growth in that demand as applicable to this part.

Acts 2002, ch. 800, § 3; T.C.A. § 69-8-302.

69-7-303. Part definitions. [Current version. See second version of section and its Compiler’s Notes.]

As used in this part, unless the context otherwise requires:

  1. “Board” means the board of water quality, oil and gas established pursuant to § 69-3-104;
  2. “Commissioner” means the commissioner of environment and conservation, the commissioner's duly authorized representative and, in the event of the commissioner's absence or a vacancy in the office of commissioner, the deputy commissioner of environment and conservation;
  3. “Person” means any individual, corporation, company, limited liability company, partnership, association, group, utility district, federal, state or local government agency, or any combination of them;
  4. “Source” means a location where surface or ground water is available, including, but not limited to, a water well, cave, spring, stream, river, lake, or impoundment; and
  5. “Withdraw” means to take water from any source on a regular or recurring basis by means of an intake structure, pipe and pump that diverts water away from a source, or by any other conveyance with or without the use of suction. This does not include nonrecurring withdrawals, including, but not limited to, the filling of a swimming pool from a residential water well or accidental withdrawals caused by failure of pipes or equipment.

Acts 2002, ch. 800, § 4; T.C.A. § 69-8-303.

69-7-303. Part definitions. [Contingent amendment. See first version of section and Compiler’s Notes.]

As used in this part, unless the context otherwise requires:

  1. “Board” means the Tennessee board of energy and natural resources, created by § 69-3-104;
  2. “Commissioner” means the commissioner of environment and conservation, the commissioner's duly authorized representative and, in the event of the commissioner's absence or a vacancy in the office of commissioner, the deputy commissioner of environment and conservation;
  3. “Person” means any individual, corporation, company, limited liability company, partnership, association, group, utility district, federal, state or local government agency, or any combination of them;
  4. “Source” means a location where surface or ground water is available, including, but not limited to, a water well, cave, spring, stream, river, lake, or impoundment; and
  5. “Withdraw” means to take water from any source on a regular or recurring basis by means of an intake structure, pipe and pump that diverts water away from a source, or by any other conveyance with or without the use of suction. This does not include nonrecurring withdrawals, including, but not limited to, the filling of a swimming pool from a residential water well or accidental withdrawals caused by failure of pipes or equipment.

Acts 2002, ch. 800, § 4; T.C.A. § 69-8-303; Acts 2018, ch. 839, § 39.

Compiler's Notes. Acts 2012, ch. 986, §§ 26-28 amended § 69-3-104 to substitute “board of water quality, oil and gas” for “board of water quality control”.

Acts 2018, ch. 839, § 44 provided that the governor shall take all action necessary to prepare and submit for approval all necessary requests for federal grant funding and applications for authorization to the appropriate federal authority to obtain exclusive jurisdiction over surface coal mining and reclamation operations and the maximum federal money available for those purposes in an expeditious manner.

Acts 2018, ch. 839, § 45 provided that the commissioner of environment and conservation shall notify the secretary of state and the executive secretary of the Tennessee code commission of the date this state has been approved to exercise primacy over the regulation of surface coal mining and reclamation operations within its territorial boundaries.

Acts 2018, ch. 839, § 47 provided that the act, which amended this section, shall take effect, including for purposes of rulemaking, upon the deposit of federal funds in the Coal Mining Protection Fund.

Amendments. The 2018 amendment substituted “Tennessee board of energy and natural resources, created by § 69-3-104” for “board of water quality, oil and gas established pursuant to § 69-3-104” in (1).

Effective Dates. Acts 2018, ch. 839, § 47. [Contingent. See Compiler’s Notes.]

69-7-304. Registration of withdrawal from surface water or groundwater source — Exceptions.

  1. Except as provided in subsections (c) and (d), no person shall withdraw ten thousand (10,000) or more gallons of water per day from a surface water or a groundwater source unless the withdrawal is currently registered with the commissioner. The commissioner shall accept a recognized method of measuring the quantities of water withdrawn.
  2. Any person who causes such a withdrawal, or proposes such a withdrawal shall annually register such water withdrawal with the commissioner on forms provided for the purpose. For water wells drilled pursuant to § 69-10-101, the initial withdrawal may be registered by the well driller, on behalf of the person causing or proposing the withdrawal, by providing the required information, including an estimate of the withdrawal amount, with the notification of the intent to drill a well and by verifying or modifying, or both, the information when the report of the well driller is delivered to the commissioner. Subsequent withdrawals from water wells shall be registered annually by the person who causes such a withdrawal, or proposes such a withdrawal.
  3. A person may withdraw water for emergencies involving human health and safety without having first registered the withdrawal, provided it is not done on a regular or recurring basis.
  4. A person may withdraw water for agricultural purposes without having registered the withdrawal. If a person withdraws water for agricultural purposes and another purpose, the water used for agriculture shall not count towards the calculation of whether the withdrawal exceeds ten thousand (10,000) gallons per day. For purposes of this part, “agricultural purposes” shall mean use in the production or harvesting of an agricultural product, including, but not limited to, irrigation of crops, nursery stock production as defined at § 43-1-112, and watering of poultry or livestock.

Acts 2002, ch. 800, § 5; T.C.A. § 69-8-304.

69-7-305. Powers of commissioner.

The commissioner has the power to:

  1. Annually collect and compile water quantity data and other quantity information, including data and information on uses of water and well data, and to develop registration and other forms for these purposes. Additionally, if requested and if it is deemed necessary by the commissioner to protect trade secret information as defined in § 47-25-1702, the commissioner shall keep such trade secret information confidential;
  2. Accept forms and data provided by a municipality that has adopted home rule pursuant to article XI, § 9 of the Tennessee Constitution,, or any county operating under a county charter form of government, as part of the annual registration or data collection process, or both;
  3. Pursuant to § 69-7-302, make inspections and investigations, collect samples pursuant to a water quantity inspection or investigation, carry on research, or take such other action as may be necessary to carry out this part, rules and regulations issued pursuant to this part, and any orders that the commissioner may issue;
  4. Enter or authorize the commissioner's agents to enter at all reasonable times upon any property other than dwelling places for the purpose of conducting investigations or studies or enforcing any of the provisions of this part;
  5. Bring suit in the name of the department for any violation of this part, rules and regulations, and orders of the commissioner seeking any remedy provided in this part, rules and regulations and orders of the commissioner, and any other statutory or common law remedy provided in statutory or common law;
  6. Assess civil penalties for violation of any provision of this part or any rule, regulation, standard adopted or order issued by the commissioner pursuant to this part;
  7. Issue orders as may be necessary to secure compliance with this part, as well as the rules and regulations adopted pursuant to this part; and
  8. Exercise general supervision over the administration and enforcement of this part and all rules and regulations promulgated under this part.

Acts 2002, ch. 800, § 6; T.C.A. § 69-8-305.

Cross-References. Confidentiality of public records, § 10-7-504.

69-7-306. Rules — Rulings in contested cases.

  1. The board has the authority to promulgate the rules, other than rules establishing fees, that it deems reasonable and necessary to effectuate the purposes of this part, in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  2. The board has the authority to conduct and make all rulings in contested cases under this part.

Acts 2002, ch. 800, § 7; T.C.A. § 69-8-306.

69-7-307. Violations — Orders — Penalties — Hearings — Injunction.

    1. Whenever the commissioner has reason to believe that a person is withdrawing water without having a valid registration, or has supplied false or materially misleading information to the department or has violated any order or rule promulgated pursuant to this part, the commissioner may cause a written administrative order to be delivered to the alleged violator. The order shall specify the provision of this part or rule or order alleged to be violated, the facts alleged to constitute a violation thereof, and may order that corrective action be taken within a reasonable time to be prescribed in such order, and shall inform the violators of the opportunity for a hearing.
    2. Any such order shall become final and not subject to review unless the person or persons named in the order request by written petition a hearing no later than thirty (30) days after the date such order is delivered; provided, that the board may review such final order on the same grounds upon which a court of the state may review default judgments.
  1. Except as otherwise expressly provided, any order issued by or under authority of this part may be served on any person by the commissioner or any person designated by the commissioner, by certified mail, or in accordance with Tennessee statutes authorizing service of process in civil actions.
  2. Any person who violates or fails to comply with any provision of this part, any order of the commissioner or board issued pursuant to this part or any rule, regulation, or standard adopted pursuant to this part shall be subject to a civil penalty of not less than fifty dollars ($50.00) nor more than seven thousand five hundred dollars ($7,500) per day for each day of violation. Each day such violation continues is a separate violation.
  3. In addition to the commissioner bringing an action in any court of competent jurisdiction, a civil penalty may be assessed in the following manner:
    1. The commissioner may issue an assessment against any person responsible for the violation;
    2. Any person against whom an assessment has been issued may secure a review of such assessment by filing with the commissioner a written petition setting forth the grounds and reasons for the objections and asking for a hearing before the board in the matter involved. If a petition for review of the assessment is not filed within thirty (30) days after the date the assessment is served, the violator shall be deemed to have consented to the assessment and it shall become final;
    3. Whenever any order or assessment has become final because of a person's failure to appeal the commissioner's order or assessment, the commissioner may apply to the appropriate court for a judgment and seek execution of such judgment. The court, in such proceedings, shall treat the failure to appeal such order or assessment as a confession of judgment in the amount of the assessment; and
    4. In assessing a civil penalty, the following factors may be considered:
      1. The harm done or potential for harm to the public health or the environment;
      2. The harm done or potential for harm to the regulatory program by the violation;
      3. The economic benefit gained by the violator;
      4. The amount of effort put forth by the violator to avoid or to remedy the violation; and
      5. Any unusual or extraordinary enforcement costs incurred by the commissioner.
  4. Any hearing or rehearing brought before the board shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
  5. The commissioner may also initiate an action in any court of competent jurisdiction seeking a judgment for any unpaid penalties.
  6. When there is reason to believe that a person has violated, or is about to violate, any of the provisions of this part or orders issued under this part, the commissioner may institute proceedings in the appropriate court for injunctive relief.
  7. Any person intentionally violating, or failing, neglecting, or refusing to comply with, any of the provisions of this part or rules or regulations commits a Class C misdemeanor. Each day upon which such violation occurs is a separate offense.

Acts 2002, ch. 800, § 8; T.C.A. § 69-8-307.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

69-7-308. Regional water planning — Models — Report.

The commissioner and the board shall encourage and support regional water planning whenever possible. In the future, if there is a specific appropriation of state or federal funds for regional water supply planning, the board may require regional water supply planning and may provide incentives to encourage such regional planning, using the rulemaking authority under this part for so long as such specific appropriation is in effect. Among other criteria, state agencies are authorized to consider regional planning and regionalization efforts when awarding grants, making loans or funding projects.

Acts 2002, ch. 800, § 9; T.C.A. § 69-8-308.

Code Commission Notes.

Former subsection (b), concerning the deadline for reporting on regional aquifer studies, was deleted as obsolete by the code commission in 2012.

69-7-309. Technical advisory committee.

From time to time, the commissioner may appoint a technical advisory committee that shall advise the commissioner on matters related to the state's water resources. The commissioner may determine the identity and number of committee members and the term during which the committee will operate. The committee may be composed of representatives of federal, state, and local agencies with relevant authority and representatives of appropriate private organizations, including not-for-profit organizations. No member of the committee is entitled to a salary for duties performed as a member of the committee. No member is entitled to reimbursement for travel or other necessary expenses incurred in the performance of the member's official duties.

Acts 2002, ch. 800, § 10; T.C.A. § 69-8-309; Acts 2012, ch. 986, § 40.

Compiler's Notes. Acts 2012, ch. 986, § 48 provided that all rules, regulations, orders, and decisions heretofore issued or promulgated by any of the boards or commissions, which the act terminates or merges into another board or commission, shall remain in full force and effect. In the case of the boards or commissions that are merged with another board or commission by the act, all final rules, regulations, orders, and decisions together with any matters that are pending on October 1, 2012, shall hereafter be administered, enforced, modified, or rescinded in accordance with the law applicable to the continuing board or commission.

Chapter 8
Tennessee-Tombigbee Waterway Development Compact

69-8-101. Compact authorized — Form.

The governor, on behalf of this state, is hereby authorized to execute a compact in substantially the form set forth in this section, with the states of Alabama and Mississippi and/or with states contiguous with either of these states, and the general assembly hereby signifies its approval and ratification of such compact, which shall be executed in substantially the following form when the general assemblies or the chief legislative bodies of the states of Alabama and Mississippi have approved the state of Tennessee to become a party to the compact, to wit:

TENNESSEE-TOMBIGBEE WATERWAY DEVELOPMENT COMPACT

ARTICLE I

The purpose of this compact is to promote the development of a navigable waterway connecting the Tennessee and Tombigbee Rivers by way of the east fork of the Tombigbee River and Mackeys and Yellow Creeks so as to provide a nine-foot navigable channel from the junction of the Tombigbee and Warrior Rivers at Demopolis in the state of Alabama to the junction of Yellow Creek with the Tennessee River at Pickwick pool in the state of Mississippi and to establish a joint inter-state authority to assist in these efforts.

ARTICLE II

This compact shall become effective immediately as to the states ratifying it whenever the states of Alabama and Mississippi have ratified it and congress has given consent thereto. Any state not mentioned in this article which is contiguous with any member state may become a party to this compact, subject to approval by the legislature of each of the member states.

ARTICLE III

The states which are parties to this compact (hereinafter referred to as “party states”) do hereby establish and create a joint agency which shall be known as the Tennessee-Tombigbee Waterway Development Authority (hereinafter referred to as the “Authority”). The membership of the Authority shall consist of the governor of each party state and five (5) other citizens of each party state, to be appointed by the governor thereof. Each appointed member of the Authority shall be a citizen of that state who is interested in the promotion and development of waterways and water transportation. The appointive members of the Authority shall serve for terms of four (4) years each. Vacancies on the Authority shall be filled by appointment by the governor for the unexpired portion of the term. The members of the Authority shall not be compensated, but each shall be entitled to actual expenses incurred in attending meetings, or incurred otherwise in the performance of the member's duties as a member of the Authority. The members of the Authority shall hold regular quarterly meetings and such special meetings as its business may require. They shall choose annually a chair and vice chair from among their members, and the chair shall rotate each year among the party states in order of their acceptance of this compact. The secretary of the Authority (hereinafter provided for) shall notify each member in writing of all meetings of the Authority in such a manner and under such rules and regulations as the Authority may prescribe. The Authority shall adopt rules and regulations for the transaction of its business; and the secretary shall keep a record of all its business, and shall furnish a copy thereof to each member of the Authority. It shall be the duty of the Authority, in general, to promote, encourage, and coordinate the efforts of the party states to secure the development of the Tennessee-Tombigbee waterway. Toward this end, the Authority shall have power to hold hearings; to conduct studies and surveys of all problems, benefits, and other matters associated with the development of the Tennessee-Tombigbee waterway, and to make reports thereon; to acquire, by gift or otherwise, and hold and dispose of such money and property as may be provided for the proper performance of their functions; to cooperate with other public or private groups, whether local, state, regional, or national, having an interest in waterways development; to formulate and execute plans and policies for emphasizing the purpose of this compact before the Congress of the United States and other appropriate officials and agencies of the United States; and to exercise such other powers as may be appropriate to enable it to accomplish its functions and duties in connection with the development of the Tennessee-Tombigbee waterway and to carry out the purposes of this compact.

ARTICLE IV

The Authority shall appoint a secretary, who shall be a person familiar with the nature, procedures, and significances of inland waterways development and the informational, educational, and publicity methods of stimulating general interest in such developments, and who shall be the compact administrator. The secretary's term of office shall be at the pleasure of the Authority and the secretary shall receive such compensation as the Authority shall prescribe. The secretary shall maintain custody of the Authority's books, records, and papers, which the secretary shall keep in the office of the Authority, and the secretary shall perform all functions and duties, and exercise all powers and authorities that may be delegated to the secretary by the Authority.

ARTICLE V

Nothing in this compact shall be construed so as to conflict with any existing statute, or to limit the powers of any party state, or to repeal or prevent legislation, or to authorize or permit curtailment or diminution of any other waterway project, or to affect any existing or future cooperative arrangement or relationship between any federal agency and a party state.

ARTICLE VI

This compact shall continue in force and remain binding upon each party state until the general assembly or governor of each or either state takes action to withdraw therefrom; provided that such withdrawal shall not become effective until six (6) months after the date of the action taken by the general assembly or governor. Notice of such action shall be given to the other party state or states by the secretary of state of the party state which takes such action.

Acts 1959, ch. 55, § 1; T.C.A., § 70-2101; T.C.A. § 69-9-101.

Compiler's Notes. The Tennessee-Tombigbee waterway development authority, created by this section, terminates June 30, 2024. See §§ 4-29-112, 4-29-245.

69-8-102. Execution of compact — When effective.

When the governor has executed this compact on behalf of this state and has caused a verified copy of the compact to be filed with the secretary of state, and when the compact has been ratified as provided in Article II of the compact, and when the general assemblies or the chief legislative bodies of the states of Alabama and Mississippi have approved Tennessee as a compacting state, then it shall become operative and effective as between this state and such other states, and the governor is hereby authorized and directed to take such action as may be necessary to complete the exchange of official documents between this state and any other state ratifying the compact. All documents relating to the compact shall be filed with the secretary of state.

Acts 1959, ch. 55, § 2; T.C.A., § 70-2102; T.C.A. § 69-9-102.

69-8-103. Administration of compact — Powers granted — Members of authority.

There is hereby granted to the governor, to the members of the authority of Tennessee, and to the compact administrator, all powers provided for in the compact and in this chapter. All officers of the state of Tennessee are hereby authorized and directed to do all things falling within their respective jurisdictions that are necessary or incidental to carrying out the purpose of the compact. Those citizens representing this state on the authority shall be selected by the governor as follows: One (1) from west Tennessee, one (1) from middle Tennessee, one (1) from east Tennessee, and two (2) from the state at large.

Acts 1959, ch. 55, § 3; T.C.A., § 70-2103; T.C.A. § 69-9-103.

69-8-104. Unlawful to obligate state in excess of appropriation for biennium.

  1. It is unlawful for any member of the authority representing the state of Tennessee either to make any agreement or to create any obligation or to commit the state for any funds, moneys, or property in excess of the amounts on hand or the amount of the appropriation for the biennium, or either. Any such agreement, obligation, or commitment shall be null and void. Such agreements, obligations, or commitments shall be approved by the attorney general and reporter prior to their execution by the proper officials of the state of Tennessee.
  2. A violation of this section is a Class C misdemeanor.

Acts 1959, ch. 55, § 4; T.C.A., § 70-2104; Acts 1989, ch. 591, § 113; T.C.A. § 69-9-104.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Chapter 9
Boating Regulation

Part 1
General Provisions

69-9-101. Accessory to violations punishable as principal.

Whoever aids, abets, counsels, commands, induces, or procures the commission of a violation of this chapter or title 70 and proclamations and rules and regulations promulgated by the fish and wildlife commission, is punishable as a principal.

Acts 1982, ch. 808, § 1; T.C.A., § 70-2247; T.C.A. § 69-10-101; Acts 2012, ch. 993, § 8.

69-9-102. Sewage disposal.

  1. Any person, firm, corporation or business entity operating a commercial boating facility, dock or marina that stores or houses vessels equipped with a toilet and sewage collection tank, or when such facilities are operating on waters in this state, shall provide facilities for the sanitary pumping and disposal of sewage from such collection tanks.
  2. The sewage disposal facilities provided for in subsection (a) shall comply with the requirements of title 68 and this title, and are subject to any other regulation of the department of environment and conservation for the disposal of raw sewage.
  3. For the purposes of § 69-9-219(a), each day on which a person, firm, corporation or entity operating such commercial boating facility, dock or marina does not comply with subsection (a) constitutes a separate offense.
  4. A person, firm, corporation or business entity operating a commercial boating facility, dock or marina as provided in subsection (a) is exempt from the requirements of this section if such operator has entered into a valid agreement for the disposal of its raw sewage with another local boating facility, dock or marina. This exemption shall apply only where such other facility meets each of the requirements provided in this section for the sanitary pumping and disposal of raw sewage.

Acts 1991, ch. 218, § 1; 1992, ch. 693, § 1; T.C.A. § 69-10-102.

Cross-References. Discharge violations by vessels, § 69-9-216.

Part 2
Boating Safety

69-9-201. Short title.

This chapter shall be cited as the “Tennessee Boating Safety Act of 1965.”

Acts 1965, ch. 334, § 1; T.C.A., § 70-2201; T.C.A. § 69-10-201.

Cross-References. Boating under the influence, § 69-9-217.

Exhaust mufflers on vessel engines, title 69, ch. 9, part 3.

69-9-202. Public policy.

It is the policy of the state to:

  1. Promote the safety of persons and property in and connected with the use of vessels;
  2. Achieve, so far as practicable, uniformity of laws, regulations, requirements, procedures and methods with respect to the numbering, operation and equipment of all vessels subject to this chapter;
  3. Foster the development, use and enjoyment of all the waters of Tennessee; and
  4. Attain the fullest possible cooperation of the various agencies of this state, the neighboring states and the federal government in connection with assistance and rescue operations, in the enforcement of laws and regulations, and in the education of the public as these activities relate to recreational boating safety.

Acts 1965, ch. 334, § 2; T.C.A., § 70-2203; T.C.A. § 69-10-202.

69-9-203. Enforcement and administration of chapter — Disposition of funds — Rewards for information on violations.

  1. It is the sole duty and responsibility of the Tennessee wildlife resources agency to enforce and administer this chapter.
  2. All expenses required for the administration and enforcement of this chapter shall be paid for with funds collected pursuant to this chapter. All moneys collected under this chapter shall be deposited in the state treasury and credited to the wildlife resources fund. The moneys shall be made available to the wildlife resources agency for the administration and enforcement of this chapter, as provided in this section, and for educational activities relating to boating safety and for no other purposes.
  3. All moneys otherwise provided for pursuant to this chapter shall be made available to carry out the intent and purpose as set forth in this chapter in accordance with plans approved by the fish and wildlife commission. All such funds are hereby appropriated, reserved, set aside and made available until expended for the enforcement and administration of this chapter. The fish and wildlife commission is hereby authorized to adopt a plan or formula for the use of the moneys for employing and equipping such additional personnel as may be necessary for carrying out this chapter and for paying a proportionate share of the salaries, expense, and operational costs of existing personnel according to the time and effort expended by them in carrying out  this chapter. Such plan or formula may be altered or amended from time to time by the commission as existing conditions may warrant.
  4. No funds derived from the sale of hunting licenses or fishing licenses, or other wildlife resources funds shall be expended or diverted for carrying out this chapter.
  5. The executive director is authorized to offer rewards or payments for information that may aid in the conviction of any offender violating a provision of this chapter or any other law relating to boating.

Acts 1965, ch. 334, § 3; impl. am. Acts 1974, ch. 481, § 20; 1975, ch. 87, § 1; 1975, ch. 184, §§ 1-4; T.C.A., § 70-2203; T.C.A. § 69-10-203; Acts 2007, ch. 185, § 1; 2012, ch. 993, § 9.

69-9-204. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Agency” means the wildlife resources agency;
  2. “Anchored” means held in place in the water by an anchor;
  3. “Boat” means any vessel:
    1. Manufactured or used primarily for noncommercial use;
    2. Leased, rented, or chartered to another for the latter's noncommercial use; or
    3. Engaged in the carrying of six (6) or fewer passengers;
  4. “Commission” means the fish and wildlife commission;
  5. “Dealer” means a person engaged in the business of manufacturing, buying, selling or exchanging boats, either outright or on conditional sale, chattel mortgage or other such contract;
  6. “Diver” means any person who is wholly or partially submerged in the waters of the state and who is equipped with a face mask and snorkel or underwater breathing apparatus;
  7. “Divers-down flag” means a free-flying flag, red in color, with a white diagonal stripe that begins at the top staff-side corner of the flag and extends to the lower opposite corner. The width of the stripe must be twenty-five percent (25%) of the height of the flag;
  8. “Drifting” means underway, but proceeding without use of engines, oars or sails, being carried along only by the tide, current or wind;
  9. “Executive director” means the executive director of the wildlife resources agency;
  10. “Fueling” means any stage of the fueling operation; primarily concerned with introduction of explosive or combustible vapors or liquids on board;
  11. “Maneuvering” means changing of course, speed or similar boat handling action;
  12. “Mooring” means the act of making fast or securing a boat with lines or anchors, and may also include the place where a boat is secured or made fast;
  13. “Motorboat” means any vessel propelled by machinery, whether or not such machinery is the principal source of propulsion;
  14. “Numbered vessel” means an undocumented vessel that is subject to issue or has been issued a certificate of number by the state;
  15. “Operate” means to navigate, be in physical control of, or otherwise use a motorboat or a vessel;
  16. “Operator” means the person who operates or has charge of the navigation or use of a motorboat or vessel;
  17. “Overloading” means excessive loading of a vessel with equipment or persons that causes instability, limited maneuverability, dangerously reduced freeboard or other similar conditions;
  18. “Owner” means a person, other than a lienholder, having the property in or title to a motorboat or vessel. “Owner” includes a person entitled to the use or possession of a motorboat or vessel subject to an interest in another person, reserved or created by agreement and securing payment or performance of an obligation, but “owner” excludes a lessee under a lease not intended as security;
  19. “Person” means an individual, partnership, firm, corporation, association, or other entity;
  20. “Registration” means satisfying the requirements for registration prescribed by the commission;
  21. “Restricted visibility” means any condition in which visibility is restricted by fog, mist, falling snow, heavy rainstorms or any other similar causes;
  22. “Rules of the road” means statutory and regulatory rules governing navigation of vessels;
  23. “Sailboat or auxiliary sailboat” means a vessel intended to be propelled primarily by sail, regardless of size or type;
  24. “State of principal use” means the state on whose waters a vessel is used, whether moored or underway, or to be used most during a calendar year;
  25. “Serious injury” means an injury that requires, or should have required, medical treatment by a physician beyond first aid;
  26. “Underwater breathing apparatus” means any apparatus, whether self-contained or connected to a distant source of air or gas, whereby a person wholly or partially submerged in the water is enabled to obtain air or other gases for breathing without returning to the surface of the water;
  27. “Underway” means a vessel that is not anchored, moored or aground;
  28. “Use” means to operate, navigate or employ;
  29. “Vessel” means every description of watercraft, other than a seaplane on the water, used or capable of being used as a means of transportation on water;
  30. “Vessel length” means the distance from the vessel's forward end to the after end across the deck down the centerline, excluding the sheer and disregarding bowsprits, bumkins, rudders, outboard motors or similar fittings; and
  31. “Waters of Tennessee” means any waters within the territorial limits of this state, except privately owned ponds or lakes not used for commercial purposes.

Acts 1965, ch. 334, § 4; 1974, ch. 719, § 1; 1975, ch. 87, § 2; 1975, ch. 184, §§ 5-7; T.C.A., § 70-2204; Acts 1984, ch. 732, § 1; 1989, ch. 92, §§ 1-3; T.C.A. § 69-10-204; Acts 2007, ch. 185, §§ 2-4; 2012, ch. 993, § 10.

Cross-References. Divers-down flags, minimum size, § 69-9-402.

69-9-205. Duties of executive director.

The executive director shall:

  1. Plan, and submit to the commission, programs for the education of the public in boating safety, for the assignment of identification numbers to motorboats, for the regulation of vessels subject to this chapter, and for the enforcement of this chapter including related cooperation with other agencies and commissions of this state or any political subdivision of other agencies and commissions and with officials of other states and federal government;
  2. Make and develop plans, within the limits of available income, for the improvement and promotion of all the waters of Tennessee for recreational purposes, including, but not limited to, the improvement of waterways through the deepening of channels, the acquisition and development of access areas and the removal of obstructions; and
  3. Perform such additional educational, administrative and enforcement duties as the commission may lawfully assign.

Acts 1965, ch. 334, § 5; 1975, ch. 184, § 8; T.C.A., § 70-2205; T.C.A. § 69-10-205.

69-9-206. Identification numbers for vessels — Exceptions.

  1. Every vessel propelled by sail or machinery, or both, upon the waters of Tennessee shall be numbered for identification in accordance with this chapter and the regulations of the commission except:
    1. A vessel that has a valid document issued by the bureau of customs of the United States, or any federal agency successor to the bureau of customs must be registered with the agency but is not required to display the identification numbers on the vessel;
    2. A vessel with a valid number awarded to it pursuant to federal law or a federally-approved numbering system of another state; unless Tennessee has become the state of principal use and the vessel has been in Tennessee for sixty (60) days;
    3. A vessel from a country other than the United States temporarily using the waters of Tennessee;
    4. A vessel that is owned by the United States government, a state, or political subdivision of the United States government or a state that is used in the public service;
    5. A ship's lifeboat;
    6. A motorboat belonging to a class of boats that has been exempted from numbering by the commission after the agency has found that the numbering of motorboats of such class will not materially aid in their identification; and, if an agency of the federal government has a numbering system applicable to the class of motorboats to which the motorboat in question belongs, after the commission has further found that the motorboat would also be exempt from numbering if it were subject to the federal law; or
    7. A vessel that is owned by any volunteer rescue squad and used solely in emergency or rescue work and not for private, personal, recreation, or business use.
  2. Every such exempt vessel under subsection (a) shall prominently display identification by name on the vessel.

Acts 1965, ch. 334, § 6; 1969, ch. 313, § 1; 1972, ch. 616, § 1; 1974, ch. 719, § 2; 1979, ch. 36, § 1; T.C.A., § 70-2206; Acts 2001, ch. 249, § 1; T.C.A. § 69-10-206.

Cross-References. Penalty for alteration of permanent serial numbers on watercraft, § 39-14-134.

Tax exemption for sales or leases of motor vehicles, boats, motor boats and other vessels, §§ 67-6-343, 67-6-345.

69-9-207. Issuance of certificates of number — Fees — Renewal.

  1. No person shall operate or give permission for the operation of any vessel on the waters of Tennessee unless the vessel is numbered in accordance with this chapter.
  2. The owner of every vessel required to be numbered by this chapter shall file an application for a number with the agency on forms approved by the executive director. The application shall be signed by the owner, or owners, of the vessel and shall be accompanied by the fee as set forth in this part. In situations involving abandoned or salvaged vessels, the fee shall be the same as set forth in this part; however, the applicant shall follow procedures as set out in rules and regulations.
  3. Upon receipt of the application in approved form, the agency shall issue to the applicant a certificate of number, which shall contain the identification number issued to the vessel and such additional information as the commission may, by regulation, prescribe. The certificate shall be pocket-sized and shall be available for inspection when the vessel is in operation. The owner shall paint on or attach the identification number to each side of the bow of the vessel for which issued, displaying it in the manner required by the regulations of the commission and maintaining it in legible condition.
  4. Certificates shall be valid for a period of one (1) year from date of issue; provided, that certificates shall be issued for periods up to three (3) years upon application of the owner. The fee to be collected for certificates shall be as follows:

    Fee Category 1 Year 2 Years 3 Years Vessels less than 16 feet $ 4.00 $ 7.00 $10.00 Vessels 16 feet to less than 26 feet 8.00 14.00 20.00 Vessels 26 feet to less than 40 feet 12.00 21.00 30.00 Vessels 40 feet or more 16.00 28.00 40.00 Dealer's Certificate 10.00 ——— ——— Duplicate Certificate 2.00 ——— ———

    Click to view table.

  5. The fees levied pursuant to subsection (d) prior to June 13, 1997, shall continue to be levied as provided in such subsection. The commission is authorized to adjust such fees by regulation in such amount as may be necessary to administer this chapter; provided, that the percentage increase for any such fee adjustment shall not exceed the percent of increase in the average consumer price index all items-city average as published by the United States department of labor, bureau of labor statistics, since the last change in such fees. All such fees, and any adjustments to the fees, shall be deposited in the wildlife resources fund and shall be expended solely for the administration and operation of the commission's programs and responsibilities authorized pursuant to this chapter.
  6. The agency shall be the office of records for all transactions and transfers of vessels numbered in this state.
  7. The numbering system to be used shall conform to the numbering system promulgated by the federal government.
  8. An owner of two (2) or more vessels that are subject to the requirements of this chapter and that are used as rental vessels in connection with the operation of a commercial boat dock shall, upon payment of the prescribed fee for each such vessel and upon the owner's written request for a blanket certificate, be entitled to have issued a blanket certificate of number covering all of the vessels for which fee is paid. The same vessel identification number followed by a dash (—) and a different suffix number for each vessel shall be painted on or attached to the bow of each such vessel, as provided in this section. In addition, the name of the boat dock or the owner of each such vessel shall be prominently displayed on the vessel as is provided in § 69-9-206 for exempt vessels.

Acts 1965, ch. 334, § 7; 1969, ch. 313, § 2; 1970, ch. 380, § 1; 1971, ch. 10, §§ 1, 2; 1974, ch. 456, § 1; 1975, ch. 184, §§ 9, 10; 1979, ch. 292, § 1; T.C.A., § 70-2207; Acts 1997, ch. 411, § 3; 2000, ch. 830, § 1; T.C.A. § 69-10-207.

Compiler's Notes. Acts 1997, ch. 411, § 1 provided that that act, which added present (e), shall be cited as the Comprehensive Boating Safety Act of 1997.

69-9-208. Who may issue certificates — Disposition of fees.

  1. The agency will issue certificates of number directly or may authorize any official in the state, who is presently authorized to issue automobile license plates, to issue certificates of number. In conformity with this chapter and any rules and regulations that may be validly issued by the commission, the agency may assign to each issuing officer a block of numbers and certificates, for which upon issue, the issuing officer shall be allowed a fee of twenty-five cents (25¢) for each certificate issued by the issuing officer, which fee shall be retained by the issuing officer, except that, in counties where the issuing officer is on salary basis, the fee shall be paid into the county treasury.
  2. All registration moneys, except the twenty-five cent (25¢) fee allowed as mentioned in subsection (a), shall be remitted monthly to the commission not later than ten (10) days after the first of each month.
  3. Any unexpended sums in excess of costs of administration and enforcement that are available out of the moneys derived under this chapter shall be expended and used by the commission for the purposes of water safety education and improvement of noncommercial boating facilities in this state, and the acquisition and development of lands for boating purposes.

Acts 1965, ch. 334, § 8; 1975, ch. 87, § 3; 1975, ch. 184, §§ 11, 12; T.C.A., § 70-2208; T.C.A. § 69-10-208.

69-9-209. Rules and regulations.

  1. The commission shall establish uniform regulations governing the numbering, the safety equipment, and the operation of the vessels subject to this chapter so that any such vessel complying with the regulations may be operated with equal freedom, or under similar requirements, upon all the waters of Tennessee. Safety and operational regulations shall not be in conflict with federal laws and regulations applicable to such vessels upon the navigable waters of the United States that are within this state. The commission is authorized and directed to alter and amend its regulations as need be, from time to time, to prevent conflict with federal laws and regulations pertaining to vessels.
    1. The commission is authorized to proclaim special rules and regulations governing the operation of vessels in special areas or under special conditions.
      1. Notwithstanding  the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, or any other law to the contrary, the executive director, with the concurrence of the commission, is specifically authorized to order the temporary suspension of the effectiveness of any rule or regulation governing the operation of vessels in special areas or under special conditions if the public health, safety and welfare, and the aquatic habitat can be reasonably protected. The temporary suspension of such rules or regulations may be by proclamation, and shall not be subject to the rulemaking and publication provisions of the Uniform Administrative Procedures Act.
      2. The executive director shall ensure that adequate public notice of such temporary suspension of the rules is given. Whenever possible, the executive director shall transmit written notice of the order to suspend temporarily the rules to the secretary of state for publication in the notice section of the monthly administrative register.
  2. Such rules and regulations of the commission as are authorized for this chapter shall be published at least one (1) time in newspapers whose circulation generally covers the areas affected by the rules and regulations. The publication of the rules and regulations is required to be at least fifteen (15) days before the terms of the rules and regulations will become effective. A copy of all rules and regulations passed by the commission shall be immediately filed with the secretary of state and the county clerks for the counties affected. The commission may conduct a public hearing on proposed rules or regulations.
  3. No municipality, or other local authority, shall establish any regulation of a local nature not in conformity with state regulations authorized in this section.
  4. On any proposed regulation affecting the equipment or operation, or both, of any vessel subject to this chapter, the commission may solicit the advice or opinions of representative boating associations, yacht clubs, and local, state or federal officials or agencies having knowledge or experience with the subject of the proposed regulations.
  5. The commission shall provide regulations to govern:
    1. Reports to be made and action required in case of accident;
    2. Reporting the destruction, sale, or transfer of ownership of numbered vessels;
    3. Reporting the change of address of owner of a numbered vessel;
    4. Special numbers for use by manufacturers or dealers for the demonstration or transportation of vessels;
    5. The issuance of certificates for boats from other states using the waters of Tennessee for more than sixty (60) days. For the purposes of this subdivision (f)(5), where such a vessel is in Tennessee solely for wet or dry storage or repairs, or both, the length of time that such vessel is in Tennessee for such purposes shall not be counted;
    6. Safety equipment, lights and operations not inconsistent with federal laws;
    7. Cooperation with local governments and federal authority for special events or to meet emergency situations;
    8. Issuance of special numbers to owners of fleets of boats for hire or rent;
    9. Equipment and activities associated with commercial boating; and
    10. Abandoned and salvaged vessels.

Acts 1965, ch. 334, § 10; 1974, ch. 719, § 3; 1975, ch. 87, §§ 5-7; T.C.A., § 70-2210; Acts 1990, ch. 694, § 1; T.C.A. § 69-10-209; Acts 2007, ch. 185, § 5.

69-9-210. Reporting of boating accidents — Rendering of assistance.

  1. Whenever any vessel operating upon the waters of Tennessee is involved in an accident, it is the duty of the operator, so far as the operator can do so without serious danger to the operator's own passengers, guests, crew, the operator or the operator's vessel, to render to all other persons affected by the accident such assistance as may be practicable and as may be necessary in order to save them from or to minimize any danger caused by the accident. The operator shall also give the operator's name, address, and identifying information regarding the operator's vessel, to any person injured or to the owner of any property damaged in the accident.
  2. Whenever an accident involves any vessel and results in the death, disappearance, or serious injury of any person, or in property damage in excess of two thousand dollars ($2,000), as estimated by the wildlife officer or operator, or complete loss of vessel, the operator or operators of the vessel shall file, with the agency, a full description of the accident, including such information as the commission may by regulation require, within the times prescribed in subsection (c).
  3. The agency shall be immediately notified of any boating accident within the meaning of this chapter that occurs on the waters of Tennessee by the operator or operators of any vessel involved in the accident. An accident reported pursuant to subsection (b) shall be filed within forty-eight (48) hours of the occurrence of an accident if the accident has resulted in the death, disappearance, or serious injury of any person. An accident reported pursuant to subsection (b) that results in property damage shall be filed within ten (10) days. If the operator is incapable of making the required notice or report, it is the responsibility of each passenger to ensure that notification is made and any required report is filed in conformance with this subsection (c).
  4. The report of a boating accident required to be made in this section shall not, during any judicial proceeding, be referred to in any way; it shall not be subject to subpoena nor admissible as evidence in any proceeding. Subject to these restrictions, information contained in a boating accident report and any statistical information based on the report will be made available upon request for official purposes to the United States coast guard and any federal agency successor to the coast guard. Any party or individual involved in a boating accident may obtain a copy of the report of the accident that has been filed by requesting same from the commission.
    1. It is a Class A misdemeanor for any person to fail to stop or comply with the requirements of subsection (a) when the person knew or reasonably should have known that serious injury resulted from the accident.
    2. It is a Class E felony for any person to fail to stop or comply with the requirements of subsection (a) when the person knew or reasonably should have known that death resulted from the accident.

Acts 1965, ch. 334, § 12; 1975, ch. 184, § 14; 1982, ch. 738, § 36; T.C.A., § 70-2212; Acts 1992, ch. 601, § 1; T.C.A. § 69-10-210; Acts 2007, ch. 185, §§ 6, 7; 2008, ch. 1194, § 1.

Cross-References. Giving false information regarding accidents, investigations, § 69-9-216.

Penalty for Class A misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

69-9-211. Regattas and other special aquatic events.

  1. The executive director may authorize the holding of regattas, motorboat or other boat races, marine parades, tournaments, exhibitions, or land-based events that are intended to be viewed from the water by vessel that impact navigation or the safety of vessels on any waters of this state. The commission shall adopt from time to time and amend regulations concerning the safety of motorboats and other vessels and persons on motorboats and vessels, either observers or participants.
  2. Notwithstanding any other provision of law to the contrary, the executive director is authorized to establish temporary zones and restrictions in connection with the authorization of a specific special aquatic event as provided for in subsection (c). The executive director shall ensure that adequate public notice of the temporary zones and restrictions is given.
  3. Whenever a regatta, motorboat or other boat race, marine parade, tournament, exhibition, or land-based event intended to be viewed from the water by vessel that impacts navigation or vessel safety is proposed to be held, the person in charge of the event, at least thirty (30) days prior to the event, shall file an application with the executive director for permission to hold such regatta, motorboat or other boat race, marine parade, tournament, exhibition, or land-based event intended to be viewed from the water by vessel that impacts navigation or vessel safety. The application shall set forth the date, time and location where it is proposed to hold such regatta, motorboat or other boat race, marine parade, tournament, exhibition, or land-based event intended to be viewed from the water by vessel that impacts navigation or vessel safety, and it shall not be conducted without authorization of the executive director in writing. For good cause shown, the executive director may waive the thirty (30) day requirement.

Acts 1965, ch. 334, § 15; 1975, ch. 184, §§ 15, 16; T.C.A., § 70-2215; Acts 1995, ch. 26, §§ 1-3; T.C.A. § 69-10-211; Acts 2007, ch. 185, §§ 8, 9.

69-9-212. Regulation of motorboats carrying passengers for hire — Exception.

  1. The commission is hereby authorized to establish rules, regulations and procedures for the inspection and approval of motorboats carrying passengers for hire and for the licensing of the operators of such vessels, but this part shall not apply to any vessel that holds a valid certificate of inspection issued by the United States coast guard, or any federal agency successor to the coast guard.
  2. Any person holding a valid motorboat operator's license issued by the United States coast guard or any federal agency successor to the coast guard shall be exempt from the licensing requirements of this part.

Acts 1965, ch. 334, § 17; T.C.A., § 70-2217; T.C.A. § 69-10-212.

69-9-213. Boat liveries.

  1. The owner of a boat livery shall cause to be kept a record of the name and address of the person or persons hiring any vessel that is designed or permitted by the owner of the boat livery to be operated as a motorboat, and the identification number of the vessel. The record shall be preserved for at least six (6) months.
  2. Neither the owner of a boat livery, nor the owner's agent or employee shall permit any motorboat or any vessel designed or permitted by the owner to be operated as a motorboat or sailboat to depart from the owner's premises unless it shall have been provided either by the owner or renter, with the equipment required by this chapter and any rules and regulations made pursuant to this chapter.

Acts 1965, ch. 334, § 18; T.C.A., § 70-2218; T.C.A. § 69-10-213.

69-9-214. Judicial notice of all published rules and regulations and proclamations.

Courts shall take judicial notice of all published rules and regulations and proclamations promulgated pursuant to this chapter and the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1965, ch. 334, § 19; 1975, ch. 184, §§ 17, 18; T.C.A., § 70-2219; T.C.A. § 69-10-214; Acts 2007, ch. 185, § 10.

69-9-215. Liability of owners or operators.

    1. The owner of a vessel, other than a bona fide person engaged in the business of renting boats or a person engaged in the business of selling, repairing or manufacturing boats, that loans a boat to a consumer or potential consumer on a temporary basis, shall be liable for any injury or damage occasioned by the negligent operation of that vessel, whether such negligence consists of a violation of the laws of this state, or neglecting to observe such ordinary care and such operation as the rules of the common law require.
    2. The operator of a boat that has been rented from a person engaged in the business of renting boats or that is on temporary loan from a person engaged in the business of selling, repairing, or manufacturing boats shall be liable for any injury or damage occasioned by the negligent operation of that vessel, whether such negligence consists of a violation of the laws of this state or neglecting to observe such ordinary care and such operation as the rules of the common law require.
    3. Nothing contained in subdivisions (a)(1) and (2) shall prohibit the application of common law liability as a basis for liability of a bona fide person engaged in the business of renting boats or a person engaged in the business of selling, repairing or manufacturing boats that loans a boat to a consumer or potential consumer on a temporary basis for injury or damages occasioned by the negligent operation of that vessel.
    1. The owner is not liable, however, unless such vessel is being used with the owner's express or implied consent. It shall be presumed that such vessel is being operated with the knowledge and consent of the owner, if at the time of the injury or damage, it is under the control of the owner's spouse, father, mother, brother, sister, son, daughter, or other immediate member of the owner's family.
    2. In all actions for injury to persons or property caused by the negligent operation or use of any boat, vessel or motor propelled watercraft within this state, proof of ownership of such vessel shall be prima facie evidence that such vessel at the time of the cause of action was being operated and used with authority, consent and knowledge of the owner in the transaction out of which such injury or cause of action arose, and such proof of ownership likewise shall be prima facie evidence that such vessel was being operated by the owner, or by the owner's servant, for the owner's use and benefit and within the course and scope of the servant's employment. The prima facie evidence provisions of this subdivision (b)(2) shall also apply in cases of the negligent operation of a vessel being test-driven by a prospective purchaser with the knowledge and consent of the seller or the seller's agent whether or not the seller or the seller's agent is present in the vessel at the time of the alleged negligent operation. This section is intended to be remedial and it is the legislative intent that it be given a liberal construction.
  1. Nothing contained in this section shall be construed to relieve any other person from any liability that that person would otherwise have, but nothing contained in this section shall be construed to authorize or permit any recovery in excess of injury or damage actually incurred.
  2. This chapter shall not be construed to affect any rights accorded owners under the laws of the United States.

Acts 1965, ch. 334, § 20; T.C.A., § 70-2220; T.C.A. § 69-10-215; Acts 2005, ch. 238, §§ 1, 2.

69-9-216. Prohibited acts.

  1. No person shall operate or interfere with the safe operation of any motorboat or vessel, or manipulate any water skis, surfboard, tube, specialty recreational device or similar device in a reckless or negligent manner so as to endanger the life, limb, or property of any person. Notwithstanding § 69-9-219 to the contrary, any person who interferes with the safe operation of any motorboat or vessel in a reckless or negligent manner so as to endanger the life, limb, or property of any person commits a Class C misdemeanor; provided, that any person who through such interference causes bodily injury or death commits a Class A misdemeanor.
    1. It is unlawful for any person less than twelve (12) years of age to operate any vessel propelled by machinery upon the waters of Tennessee unless the person is under the direct supervision of an adult. This prohibition does not apply if the person is operating a vessel powered by a motor of eight and one-half (8.5) horsepower or less.
    2. For the purpose of this subsection (b), “direct supervision” means being in such proximity with the operator so as to be able to take immediate control of the vessel.
    3. Such supervising adult shall be jointly liable with the owner of a vessel as provided in § 69-9-215.
    1. Any person who operates a motorboat towing any person riding or attempting to ride upon one (1) or more water skis, surfboard, tube, specialty recreational device or similar device on the waters of the state shall have present in such vessel a person or persons, twelve (12) years of age or older, other than the operator, who shall at all times observe the progress of the person being towed and the operator of the towing vessel shall at all times maintain an alert lookout ahead. This provision does not apply to motorboats equipped with not less than a one hundred seventy degree (170°) wide angle rear-view mirror affixed in such a manner as will permit the operator to observe the progress of the person being towed.
    2. No person shall ride or attempt to ride upon water skis, surfboard, tube, specialty recreational device or similar device, or use or operate any vessel to tow any person on the waters of the state between sunset and sunrise and during periods of restricted visibility, except upon special permit issued by the agency.
    3. Any person riding or attempting to ride upon one (1) or more water skis, surfboard, tube, specialty recreational device or similar device, shall wear an adequate and effective life preserver, buoyant vest, or life belt filled with kapok, styrofoam, or cork, except upon special permit issued by the agency. Any operator of a vessel towing any person on water skis, surfboard, tube, specialty recreational device or similar device who is not wearing a life preserver, buoyant vest or life belt as prescribed in this subdivision (c)(3) is deemed in violation of this section.
    4. It is unlawful for any person or persons to install, or maintain any structure, or inclined platform known as a water ski jump on the waters of the state and it is unlawful for any person to use such platform, or structure for the purpose of water ski jumping, except upon special permit issued by the agency.
    5. This subsection (c) does not apply to a performer engaged in a professional exhibition or a person or persons engaged in an activity authorized by the agency.
    6. No person shall operate or manipulate any vessel, tow rope or other device by which the direction or location of water skis, surfboard, tube, specialty recreational device or similar device may be affected or controlled in such a way as to cause the water skis, surfboard, tube, specialty recreational device or similar device, or any person on the water skis, surfboard, tube, specialty recreational device or similar device, to collide with or strike against any object or person.
  2. No person, except an authorized representative of the federal government, the state, or any of its political subdivisions, shall use or operate a siren on the waters of this state.
  3. No person shall purposely sever the mooring lines, set adrift, injure, or damage in any manner any vessel that is moored, docked, buoyed, or tied up on the waters of the state, or purposely alter, injure, damage or destroy any buoys, markers, aids or lights placed, erected, or installed, for the safe operation of vessels upon the waters of this state.
  4. No person shall knowingly or purposefully give false information to the executive director or the executive director's officers or designees during an accident investigation or while checking for compliance with  this chapter.
  5. Except to the extent permitted by federal law and in order to protect the health and safety of persons using the waters of the state, it is unlawful for any person to operate or use a vessel capable of discharging untreated sewage from such vessel into the waters of this state. It is also unlawful to discharge any treated or untreated sewage into any waters of the state lawfully designated as “no discharge.” Such designation shall be based on the criteria as established by the United States environmental protection agency for determining discharge/no discharge waters regarding marine sanitation devices. Any such discharge of sewage from a vessel shall be prima facie evidence that the discharge was done by the operator, or owner if the operator cannot be determined, of such vessel; further, where such discharges are allowed under the federal Clean Water Act (33 U.S.C. § 1251 et seq.), and its implementing regulations, United States coast guard approved Type I and Type II marine sanitation devices are the only acceptable discharge treatment devices that may be used on the waters of this state, except that only Type II discharge devices may be used on vessels over sixty-five feet (65') in length unless otherwise provided by rule or regulation. The agency may establish by rule and regulation a system of inspection for compliance to be conducted by a properly trained, qualified and bonded private individual. This system shall in no way affect inspections as permitted under § 69-9-220.
  6. Any person or persons affected by a decision of the agency may appeal such decision to the commission.

Acts 1965, ch. 334, §§ 13, 14, 16; 1977, ch. 305, § 1; 1979, ch. 37, §§ 1, 2; T.C.A. (orig. ed.), §§ 70-2213, 70-2214, 70-2216; Acts 1989, ch. 92, §§ 4-6; 1991, ch. 218, § 2; 1992, ch. 601, § 2; 1995, ch. 39, §§ 1-6; 1998, ch. 1008, § 1; 2000, ch. 830, § 2; T.C.A. § 69-10-216; Acts 2005, ch. 181, §§ 1, 2; 2007, ch. 185, § 11.

Cross-References. Arrest without warrant, § 69-9-220.

Penalties for Class A and Class C misdemeanors, § 40-35-111.

Penalties for violation of this section, §§ 40-35-111, 69-9-219.

Reporting boating accidents, § 69-9-210.

Sewage disposal, § 69-9-102.

Vandalism of property, § 39-14-408.

Law Reviews.

A Critical Survey of Developments in Tennessee Family Law in 1976-77, VII. Protection of Minors (Neil P. Cohen), 45 Tenn. L. Rev. 489.

69-9-217. Boating under the influence.

  1. It is unlawful for any person or persons to operate any vessel subject to registration or any commercial vessel as defined in this section on the public waters of the state while under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system.
  2. For the purpose of this section:
    1. “Commercial vessel” means any vessel used or whose principal use is to carry passengers for hire for monetary or other consideration or any vessel used or whose principal use is to transport or to assist in the transportation of goods or services;
    2. “Drugs producing stimulating effects on the central nervous system” includes the salts of barbituric acid, also known as malonyl urea, or any compound, derivatives, or mixtures thereof that may be used for producing hypnotic or somnifacient effects, and includes amphetamine, desoxyephedrine or compounds or mixtures thereof, including all derivatives of phenolethylamine or any of the salts thereof, except preparations intended for use in the nose and unfit for internal use; and
    3. “Test” means any chemical test designed to determine the alcoholic or drug content of the blood.
  3. The fact that any person who operates any vessel subject to registration or any commercial vessel as defined in this section on public waters of the state while under the influence of narcotic or barbital drugs is or has been entitled to use such drugs under the laws of this state is not a defense to the violation of this section.
    1. Any person who operates any vessel subject to registration or any commercial vessel as defined in this section on the public waters of the state shall be determined to have consented to one (1) or more tests for the purpose of determining the alcoholic or drug content of the person's blood; provided, that any such test is administered at the direction of an officer having reasonable grounds to believe the person has been operating any vessel subject to registration or any commercial vessel as defined in this section while under the influence of an intoxicant or drug.
    2. The specimen to be used for such test shall include blood, urine or breath.
    3. Any physician, registered nurse, licensed practical nurse, clinical laboratory technologist, clinical laboratory technician, licensed paramedic or, notwithstanding any other provision of law to the contrary, licensed emergency medical technician approved to establish intravenous catheters, technologist, or certified or nationally registered phlebotomist who, acting at the written request of an officer, withdraws blood from a person for the purpose of making such test, shall not incur any civil or criminal liability as a result of the withdrawing of such blood, except for any damages that may result from the negligence of the person so withdrawing. Neither the hospital nor other employer of such physician, registered nurse, licensed practical nurse, clinical technician, technologist, or certified or nationally registered phlebotomist, shall incur, except for negligence, any civil or criminal liability as a result of the act of withdrawing blood from any person submitting to such test.
    1. An officer who requests that the person operating any vessel subject to registration or any commercial vessel as defined in this section submit to a test pursuant to this section for the purpose of determining the alcoholic or drug content of such person's blood shall, prior to conducting such test, advise the person that refusal to submit to such test will result in the suspension by the court of such person's privilege to operate any vessel subject to registration or any commercial vessel as defined in this section.
    2. The court having jurisdiction of the offenses for which such person was placed under arrest does not have the authority to suspend the privilege of a person who refuses to submit to the test if such person was not advised of the consequences of such a refusal.
    1. If such person having been placed under arrest and thereafter has been requested by an officer to submit to the test and advised of the consequences for refusing to do so, refuses to submit, the test shall not be given and such person shall be charged with violating this section.
    2. The determination as to whether a person violated this section shall be made at the same time and by the same court as the one disposing of the offense for which such person was placed under arrest. If the court finds that the person violated this section, the person shall not be considered as having committed a criminal offense; however, the court shall suspend the privilege of such driver for a period of six (6) months.
  4. Any person, who is unconscious at the time of arrest or apprehension or otherwise in a condition rendering such person incapable of refusal, shall be subjected to the test, but the results of the test shall not be used as evidence against such person in any court without the consent of the person so tested.
  5. It is the duty of the enforcement agency investigating boating accidents in which fatalities or serious injuries occur to obtain blood alcohol content from all operators involved and submit the results of the blood alcohol content to the district attorney general.
  6. Upon the trial of any person charged with a violation of this section, the results of any test made of the person so charged are admissible in evidence in a criminal proceeding. Failure of an officer to request the administering of a test is likewise admissible in evidence in a criminal proceeding.
    1. For the purpose of this section, evidence that there was, at the time alleged, five-hundredths of one percent (0.05%), or less, by weight of alcohol in the blood of the defendant, shall create no presumption.
    2. Evidence that there was, at the time alleged, alcohol concentration in a person's blood or breath equal to or greater than the amount constituting the offense of driving under the influence of an intoxicant as provided in § 55-10-401(2) shall constitute a violation of this section.
  7. The results of any test authorized by subsections (d)-(l ) shall be reported in writing by the person making such test and such report shall have noted on it the time at which the sample analyzed was obtained from the person. Upon request of the person tested, the results of such test shall be made available to such person.
    1. The procurement of a sample of a person's blood for making a test as provided by this subsection (l ) and subsections (d)-(k), to be considered valid under this subsection (l ) and subsections (d)-(k), shall be performed by a registered nurse, licensed practical nurse, clinical laboratory technologist, clinical laboratory technician, licensed paramedic or, notwithstanding any other provision of law to the contrary, licensed emergency medical technician approved to establish intravenous catheters, technologist, or certified or nationally registered phlebotomist, or at the direction of a medical examiner or other physician holding an unlimited license to practice medicine in Tennessee under procedures established by the department of health.
    2. Upon receipt of a specimen forwarded to the director's office for analysis, the director of the Tennessee bureau of investigation shall have it examined for alcohol concentration or for the presence of narcotic or other drugs, if requested by the arresting officer, county medical examiner, or any district attorney general. The chief medical examiner or the medical examiner's duly appointed representative shall execute a certificate that indicates the name of the accused, the date, time and by whom the specimen was received and examined, and a statement of the alcohol concentration or presence of drugs in the specimen.
    3. When a specimen taken in accordance with this section is forwarded for testing to the office of the director, a report of the results of such test shall be made and filed in the director's office, and a copy mailed to the district attorney general for the district where the case arose.
    4. The certificate provided for in subdivision (l )(2) is, when duly attested by the director or the director's duly appointed representative, admissible in any court, in any criminal proceeding, as evidence of the facts in the certificate stated, and of the results of the test; provided, that the person taking or causing to be taken the specimen and the person performing the test of such specimen shall be available, if subpoenaed as witnesses, upon demand by either party to the cause, or, when unable to appear as witnesses, shall submit a deposition upon demand by either party to the cause.
    5. The person tested is entitled to have an additional sample of blood or urine procured and the resulting test performed by any medical laboratory of the person's own choosing and at the person's own expense; provided, that the medical laboratory is licensed pursuant to title 68, chapter 29.
  8. It is unlawful for any person or persons to operate any vessel subject to registration or any commercial vessel as defined in this section on the public waters of the state while such person's privilege to do so is suspended.
  9. This section does not apply to any vessel that is moored or anchored.

Acts 1989, ch. 92, § 5; 1990, ch. 981, § 1; 1995, ch. 355, §§ 3, 4; T.C.A. § 69-10-217; Acts 2005, ch. 90, §§ 1, 2; 2006, ch. 529, § 1; 2007, ch. 185, § 12.

Compiler's Notes. Former § 69-9-217 was transferred to § 69-9-219 in 1989.

Cross-References. Arrest without warrant, § 69-9-220.

Penalties for violation of this section, §§ 40-35-111, 69-9-219.

Attorney General Opinions. Personal immunity of emergency medical technicians and paramedics from tort suits, OAG 03-093, 2003 Tenn. AG LEXIS 112 (7/28/03).

69-9-218. Jet boats that carry passengers for hire.

  1. Jet boats that carry passengers for hire shall:
    1. Only operate during the hours between ten o'clock a.m. (10:00 a.m.) and five o'clock p.m. (5:00 p.m.) on Monday through Friday;
    2. Only operate during the hours between ten o'clock a.m. (10:00 a.m.) and seven o'clock p.m. (7:00 p.m.) on Saturday and Sunday;
    3. Not travel at a speed greater than a no-wake speed within fifty feet (50') of any private or public dock or boat ramp;
    4. Not travel at any time at a speed greater than thirty-three nautical miles per hour (33 NMPH);
    5. Be subject to the noise level restrictions under part 3 of this chapter; and
    6. Not perform the maneuver commonly called a “donut” within one-hundred feet (100') of any private vessel or the shoreline.
  2. Beginning July 1, 2018, no person shall locate any outfitter or other business that carries passengers for hire on jet boats within five thousand feet (5,000') of another outfitter or other business that carries passengers for hire on jet boats.
  3. A person violating this section commits a Class C misdemeanor and, upon conviction of an offense, shall be fined fifty dollars ($50.00) for each offense.
  4. This section shall only apply in a tourist resort county, as defined in § 42-1-301.

Acts 2018, ch. 830, § 1.

Cross-References. Penalty for Class C misdemeanor,  § 40-35-111.

69-9-219. Penalties.

  1. Any person who violates any of the provisions of this chapter, except § 69-9-216(a) or § 69-9-217, including any rules and regulations adopted by the commission, commits a Class C misdemeanor.
  2. Any person who violates § 69-9-216(a) commits a Class A misdemeanor.
      1. Any person violating § 69-9-217(a) commits a Class A misdemeanor and, upon conviction for the first offense, shall be fined not less than two hundred fifty dollars ($250) nor more than two thousand five hundred dollars ($2,500), and in the discretion of the court, shall be confined in the county jail or workhouse for a period not to exceed eleven (11) months and twenty-nine (29) days. In the discretion of the court, in addition to a fine or a jail sentence, or both, the person's privilege to operate any vessel subject to registration on the public waters of the state shall be suspended for a period not to exceed one (1) year.
      2. For conviction of the second offense, there shall be imposed a fine of not less than five hundred dollars ($500) nor more than two thousand five hundred dollars ($2,500), and in the discretion of the court, the person shall be confined in the county jail or workhouse for a period not to exceed eleven (11) months and twenty-nine (29) days, and the court shall prohibit such convicted person from operating any vessel subject to registration on the public waters of the state for a period of two (2) years.
      3. For the third or subsequent conviction, there shall be imposed a fine of not less than one thousand dollars ($1,000) nor more than five thousand dollars ($5,000) and the person shall be confined in the county jail or workhouse for not less than thirty (30) days nor more than eleven (11) months and twenty-nine (29) days, and the court shall prohibit such convicted person or persons from operating any vessel subject to registration on the public waters of the state for a period of not less than three (3) years nor more than ten (10) years.
    1. The court, in its discretion, may require a person convicted of a violation of § 69-9-217(a) to remove litter from public areas, playgrounds, picnic ramps and areas giving the public access to the public waters of the state or to work in a recycling center or other appropriate location for any prescribed period of time in addition to any of the penalties otherwise provided in this section. Any person sentenced to remove litter under the circumstances set out in this subdivision (c)(2) shall be allowed to do so at a time other than that person's regular hours of employment.
    2. For purposes of this section, a person whose convictions for violating § 69-9-217(a) occur more than ten (10) years apart is not considered a multiple offender and the penalties imposed upon multiple offenders by  subdivisions (c)(1) and (2) do not apply to such person.
    3. No person charged with a violation of § 69-9-217(a) shall be eligible for suspension of prosecution and dismissal of charges pursuant to §§ 40-15-102 — 40-15-105 and 40-32-101(a)(3)-(c)(3), or for any other pretrial diversion program, nor shall any person convicted under § 69-9-217(a) be eligible for suspension of sentence or probation pursuant to title 40, chapter 35, part 3, or any other law authorizing suspension of sentence or probation, until such time as the person has fully served day for day at least the minimum sentence provided by law.
    4. All persons sentenced under subdivision (c)(1) or (c)(2) shall be required to serve the difference between the time actually served and the maximum sentence on probation. The judge, in the judge's discretion, may impose any conditions of probation that are reasonably related to the offense but shall impose the following conditions:
      1. Participation in an alcohol safety boating under the influence (BUI) school program, if available;
      2. Upon the second or subsequent conviction for violating § 69-9-217(a), participation in a program of rehabilitation at an alcohol treatment facility, if available; and
      3. The payment of restitution to any person suffering physical injury or personal losses as the result of such offense, if such person is economically capable of making such restitution.
      1. Any person convicted under § 69-9-217(a) of an initial or subsequent offense shall be advised in writing of the penalty for second and subsequent convictions, and, in addition, when pronouncing sentence, the judge shall advise the defendant of the penalties for additional offenses.
      2. In the prosecution of second or subsequent offenders, the indictment or charging instrument must allege the prior convictions for violating any of the provisions of § 69-9-217(a), setting forth the time and place of each prior conviction or convictions.
    5. In addition to all other fines, fees, costs and punishments now prescribed by law, in any county having a county operated blood alcohol concentration testing facility, a blood alcohol concentration (BAC) test fee in the amount of seventeen dollars and fifty cents ($17.50) will be assessed upon conviction of an offense of operating a vessel subject to registration for each offender who has taken a breath-alcohol test on an evidential breath testing unit provided, maintained and administered by a law enforcement agency in the counties or where breath, blood or urine has been analyzed by a publicly funded forensic laboratory. This fee shall be collected by the clerks of various courts of the counties and forwarded to the county trustee on a monthly basis, and designated for exclusive use by the law enforcement testing unit of the counties if the BAC test was conducted on an evidential breath testing unit. If the blood alcohol test was conducted by a publicly funded forensic laboratory, the fee shall be collected by the clerks of the various courts of the counties and forwarded to the county trustee on a monthly basis and designated for exclusive use by the publicly funded forensic laboratory.
    6. No person arrested under this subsection (c) shall be subject to strip searches or body cavity searches, or both, unless the arresting officer has probable cause to believe the arrested person may be concealing a weapon or contraband, or both, in such person's body cavity. “Contraband” includes, but is not limited to, illegal drugs.
    7. In addition to all other fines, fees, costs, and punishments now prescribed by law, an ignition interlock fee of forty dollars ($40.00) shall be assessed for each violation of § 69-9-217, occurring on or after July 1, 2018, and resulting in a conviction for such offense. All proceeds collected pursuant to this subdivision (c)(9) shall be transmitted to the treasurer for deposit in the electronic monitoring indigency fund pursuant to § 55-10-419(g).
  3. Any person violating § 69-9-217(m) commits a Class B misdemeanor and, upon conviction of the violation, shall be fined not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000) or shall be confined in the county jail or workhouse for no more than thirty (30) days, or both.

Acts 1965, ch. 334, § 21; 1967, ch. 153, § 1; T.C.A., §§ 70-2221, 69-10-217; Acts 1989, ch. 92, §§ 7-9; 1989, ch. 591, § 113; 1990, ch. 981, § 2; T.C.A. § 69-10-219; Acts 2007, ch. 185, § 13; 2018, ch. 1046, § 8.

Compiler's Notes. Former §§ 69-10-219 (now § 69-9-219) was transferred to § 69-10-221 (now § 69-9-221) in 1989.

Acts 2018, ch. 1046, § 12 provided that the act, which amended this section, shall apply to  offenses committed on or after July 1, 2018.

Cross-References. Penalties for Class A, B and C misdemeanors, § 40-35-111.

69-9-220. Authority of enforcement officers — Arrest — Inspections — Warning citations — Emergency vessels.

  1. Every wildlife officer and any additional enforcement officers who may be specified by the executive director have the authority to enforce this chapter and, in the exercise of the authority, have the authority to stop and board any vessel subject to this chapter. They may arrest on sight, without warrant, any person detected by them in the act of violating any of the provisions of this chapter. The officer may, without a warrant, arrest a person at the scene of a boating accident who is the operator of a vessel involved in such accident when, based on personal investigation, the officer has probable cause to believe that such person has violated either § 69-9-216(a), relative to reckless or negligent endangerment or § 69-9-217(a), relative to boating under the influence. They have the same right as sheriffs to require aid in arresting, with or without process, any person found by them violating any of the provisions of this chapter.
  2. No person shall resist, hinder, obstruct, or abuse any law enforcement officer while the officer is attempting to arrest offenders of this chapter or while the officer is making necessary inspections to determine that there is compliance with this chapter.
  3. The commission is authorized to provide by duly promulgated regulation a system for issuing warning citations under such conditions as may be deemed proper.
  4. This section does not authorize officers to inspect vessels for any purpose other than to determine if the vessels meet the registration and safety requirements of this chapter.
  5. Vessels operated by persons commissioned as law enforcement officers as provided in subsection (a), shall be designated as emergency vessels and both the vessel and the law enforcement officer are exempt from normal operating requirements when the vessel is being used for law enforcement purposes.

Acts 1965, ch. 334, § 22; 1975, ch. 184, §§ 19, 20; T.C.A., §§ 70-2222, 69-10-218; Acts 1989, ch. 92, § 10; 1992, ch. 601, § 3; 2000, ch. 830, § 3; T.C.A. § 69-10-220.

Compiler's Notes. Former § 69-10-220 (now § 69-9-220) was transferred to § 69-10-222 (now § 69-9-222) in 1989.

Attorney General Opinions. Authority of TWRA Officers to Enforce Local Noise Ordinances on Waters by Agreement with Local Law Enforcement Agency. OAG 15-68, 2015 Tenn. AG LEXIS 69 (9/23/15).

69-9-221. [Reserved.]

On or before the fifteenth day of each month, magistrates or clerks of general sessions courts and other courts shall make a detailed report of all fines and forfeitures collected during the previous calendar month, this report to be made on forms provided by the commission, and the magistrates or clerks of general sessions courts shall retain ten percent (10%) of fines and forfeitures collected or taken, and shall pay one half (½) of the balance to the state treasurer with the report, to be placed to the credit of the wildlife resources fund, and shall pay one half (½) of the balance to the trustee of the county in which the fine or forfeiture was collected, to be placed to the credit of the general funds of the county.

Acts 1965, ch. 334, § 24; impl. am. Acts 1974, ch. 481, § 16; 1975, ch. 87, § 8; 1975, ch. 184, § 21; impl. am. Acts 1978, ch. 934, §§ 22, 36; T.C.A., §§ 70-2224, 69-10-220; T.C.A. § 69-10-222.

69-9-223. [Reserved.]

The executive director, or the executive director's designees or officers, upon observing a boat being used without sufficient lifesaving or firefighting devices, or in an overloaded or other unsafe condition, which in such person's judgment creates an especially hazardous condition, may direct the operator to take whatever immediate and reasonable steps would be necessary for the safety of those aboard the vessel, including directing the operator to return to mooring and to remain there until the situation creating the hazard is corrected or ended.

Acts 1989, ch. 92, § 11; T.C.A. § 69-10-224.

69-9-225. Personal flotation devices required for persons twelve (12) years of age and under — Penalty.

  1. All persons twelve (12) years of age and under in an open boat or on an open deck of a vessel being used for recreational purposes on the waters of this state shall wear a United States coast guard approved wearable personal flotation device while such vessel is underway. Any personal flotation devices required by this section shall be in good and serviceable condition, appropriately sized and properly worn by the person. It is unlawful for any person to operate a vessel in violation of this section.
  2. This section does not apply to a commercial vessel owned and operated by a commercial entity that charges a per passenger fee.
  3. A violation of this section is a Class C misdemeanor punishable by a fine of not more than fifty dollars ($50.00).
  4. Any person cited under this section shall be given thirty (30) days to provide to the officer proof of legal age and for good cause shown, in the judgment of the officer, such period shall be extended for an additional period of thirty (30) days. In the event the proof shows that the person was of l