Stormwater Permitting For Tennessee Projects

by Burr & Forman

In Tennessee, permits under the state’s National Pollutant Discharge Elimination System program are required for construction sites and related support activities to avoid pollution from stormwater runoff. Specifically, a General NPDES Permit for Discharges of Stormwater Associated with Construction Activities (“General Permit”) is necessary for all construction activities involving one or more acres of land or that are part of a common plan of development or sale of more than one acre.

To obtain a General Permit, applicants must file a Notice of Intent with the Tennessee Department of Environment and Conservation (“TDEC”) Environmental Field Office. This must include a map of the proposed site and the receiving water or storm sewer, as well as a site-specific Storm Water Pollution Prevention Plan (“SWPPP”) thatdetails the Best Management Practices (“BMPs”) to be used in preventing soil erosion and controlling sediments.  The applicant must commit to implementing maintenance and inspection procedures throughout the construction period and keeping records for the following three (3) years.Notices of Intent are not transferable and new owners must submit a new application.

Once a Notice of Coverage is issued to an applicant, construction activities may commence, but this is NOT an approval of the SWPPP. SWPPP modifications may still be requiredif the proposed BMPs fail to prevent erosion and control sediment.

In preparing a SWPPP, it’s crucial to identify the TDEC classification of the receiving waters. Three classifications of note are: Outstanding, Exceptional and Impaired.

  • Outstanding waters constitute a national resource, such as waters in national and state parksor waters with particular recreational or ecological significance.
  • Exceptional watersinclude those within state or national parks, wildlife refuges, Federal Wild and Scenic Rivers, waters supporting threatened or endangered species and other waters of exceptionalbiologic, ecological or recreational values.
  • Impaired waters are defined as waters not meeting their designated uses and states are required to identify these waters under Section 303(d) of the Clean Water Act.  These waters have one or more properties that violate water quality standards or are expected to exceed water quality standards within two years, and need additional pollution controls.

Water classification dictates the degree of allowed degradation in water quality and protection required by BMPs for the construction project. Moreinformation on classificationmay be found on the TDEC website.

Additional permits may also be required of particular developments, including local or aquatic resource alteration permits.  Five local jurisdictions are now participating in TDECas pilot Qualifying Local Programs (“QLPs”).  For projects located in these QLPs, a single NOI filed at the local level also authorizes construction under the State General Permit.  The TDEC website has more information available and developers are encouraged to consult this resourceas needed.The Tennessee Erosion & Sediment Control Handbook is also a valuable resource, including SWPPP templates for a single-family residence, a medium size residential subdivision and a small commercial site.

There is no substitute for engaging competent, professional legal and technical expertise as early as possible in the development process.  The time and attention devoted to these issues will be reflected in the profits generated by properly designed and maintained construction projects. Please contact one of the Burr & Forman team members for assistance with any questions or concerns you may have.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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