McCord drops words on streams from bill to focus on river cleanup

By Joel Davis
of The Daily Times Staff

State Rep. Joe McCord has stripped controversial language from his Limited Resource Waters bill that opponents feared would remove protection from many Tennessee streams. Instead, the bill now focuses on cleaning up the Nolichucky River.

"We have used that bill as a vehicle to fix a problem up on the Nolichucky River," McCord said. "It is my understanding that it is estimated there are more than 100,000 tires in the river. (Sen. Steve Sutherland and I) amended the bill to make it easier for (groups) enter into agreements to receive some grants and assistance to help clean out that portion of the river."

The amended bill passed the House Conservation and Environment Committee on Wednesday. The companion Senate bill passed the Senate Environment, Conservation, and Tourism Committee.

Renee Hoyos, executive director of the Tennessee Clean Water Network, expressed relief about the turn of events.

"I feel relieved that this is over, but we've had word this is not the end and that next year that the Responsible Water Coalition will bring a new set of bills, so we'll remain vigilant."

McCord originally brought the legislation forward at the request of a coalition, including such groups such as the Tennessee Chamber of Commerce and Industry and the Tennessee Paper Council, to address what he called a need for consistent definitions concerning what is and what is not a stream as specified in Tennessee Department of Environment and Conservation regulations.

"We're working together to try to find common language that we can possibly look to propagate rules and regs for the TDEC," McCord said. "The whole thing can and should be accomplished administratively in rules and regs -- not through codes."

The matter will continue to be studied, McCord said.

Tom Midyett of the Tennessee Paper Council said the TDEC has not been operating in a consistent manner in its enforcement actions across the state.

"All we're asking for is some type of a definition that reasonable people can operate under. We're not trying to say streams shouldn't be classified as streams. Certainly, we're not trying to pollute streams. We depend on clean water as much as anybody. We're trying to come up with a definition of stream that reasonable people can operate under.

"What we have run into is situations where ... we were going to build a facility, yet TDEC's field biologists made a determination where there was in fact a stream in places where certainly you nor I as laymen would ever assume there to be a stream. There have been determinations made with one of my member companies that cost them potentially $100,000 to mitigate."

The bill as originally written, however, focused on establishing a definition for "limited resource waters" as "ephemeral bodies of water that flow primarily in response to rainfall, for which groundwater is not a significant source and that do not support a significant indigenous population of native fish or aquatic life."

TDEC officials expressed concern that this sort of definition would limit the agencies ability to protect headwater streams. The Clean Water Network claimed it would strip protections from thousands of miles of streams in the state.

Wayne Scharber, vice president of the Tennessee Chamber of Commerce and Industry, took the lead on pushing the original legislation. He said the intent was to model the language on laws from other states, but part of the language had been left out.

"It had some rushed drafting," he said.

The primary concern was to exempt what are called "wet-weather conveyances" from state regulation," Scharber said.

"That level should not be subject to requiring a permit," he said. "... Let people have some property rights," Scharber said.

Concerns were raised that changes in the law, as orginally proposed, would limit the ability of regulators to control water quality downstream.

"It makes good sense for TDEC to be able to control the dumping into waters of substances that are noxious and are going to harm people or wildlife downstream," said John Nolt, a professor in the Philosophy Department of the University of Tennessee. "Any kind of blanket exemption is generally pretty dangerous."

Nolt, who has 18 years of experience in the field of environmental ethics, said property owners can generally be held responsible beyond the bounds of their own properties.

"There are well-established principles in ethics and law under the heading of creating nuisances that if you emit a noxious substance that moves onto somebody else's property or you do something that endangers your neighbor, you are subject to lawsuits and so on," he said. "Certainly, the status of any sort of conveyance is recognized in law."

As an outside observer, Nolt said that the concern in the environmental community is not that TDEC is inconsistent but that it does not have enough staff to deal with the really serious problems that exist.

"Enforcement has been spotty, but my impression is that it's largely due to TDEC being spread so thin rather than a deliberate policy of looking the other way for some kinds of pollution. If there is inconsistency in enforcement, that is something that can be taken care of administratively. It doesn't require legislation. From my point of view, TDEC needs more people in the field."