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).

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.

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.

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.

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

69-3-101. 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).

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).

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.]

   4. 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.
   5. Each appointive member shall be a resident and domiciliary of this state.
   6. 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.
   7. 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.
   8. All appointments of citizen members shall be for a full four-year term.
   9. Any appointive member who is absent from three (3) consecutive, regularly scheduled meetings shall be removed from the board by the governor.
   10. 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.
   11. Appointive members shall continue to serve until a successor has been appointed.
   12. 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.]

   13. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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, §§ 59-10-101 — 59-10-103.

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. 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.
2. 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).
3. 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.
4. 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.
5. 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.
6. 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).
7. 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.
8. 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.
9. 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).
10. 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.
11. 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.
12. 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.
13. 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;
   7. 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;
   8. 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;
   9. The diversion of water through a flume for the purpose of generation of electric power by a utility; or
   10. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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;
       3. 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
       4. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. Watershed activities conducted in accordance with a site-specific design developed through full application of the Natural Resource Conservation Service (NRCS) Conservation Practice Standard 580 (Tennessee) and NRCS Engineering Field Handbook, Chapter 16 Streambank and Shoreline Protection, and subject to NRCS oversight as a federal action, do not result in pollution and do not require compensatory mitigation. Such watershed activities shall be regulated under a general permit for aquatic alterations pursuant to subsection (l ). The commissioner shall draft an initial general permit authorizing such watershed activities, conduct public notice in accordance with the board's rules, and issue the initial general permit no later than December 31, 2020. Thereafter, the commissioner shall ensure timely renewal of the general 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; 2020, ch. 589, § 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).

The 2020 amendment added (w).

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

Acts 2020, ch. 589, § 2. March 20, 2020.

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).

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

1. 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.
2. 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.
3. 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.

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.

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 §§ 69-3-115 — 69-3-117.

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. 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.
2. 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.

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

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

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. 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.
2. 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.
3. 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. 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.
2. 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.
3. 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. 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.
2. 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.

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, §§ 69-3-123 — 69-3-129, 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 §§ 69-3-123 — 69-3-129 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 §§ 69-3-123 — 69-3-128 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. 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.
2. 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.
3. 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.
4. 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.
5. The general permits granted by this section shall not be subject to the durational limit set forth in § 69-3-108.
6. 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.
7. 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. 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.]

2. 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. 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.
2. 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 69-3-143 — 69-3-147 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 §§ 69-3-143 — 69-3-147, 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 §§ 69-3-143 — 69-3-147 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

69-5-101. 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.

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.

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.

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.

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 §§ 69-5-819 — 69-5-823.

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

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 §§ 69-5-107 — 69-5-115(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.

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.

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.

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.

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 §§ 69-5-819 — 69-5-823.

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.

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

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).

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).

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).

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).

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).

69-7-101. 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

69-9-101. 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