Environmental Defense Fund, Inc. v. Tennessee Water Quality Control Bd.

• Decision Date: 07 April 1983
• Parties: 14 Envtl. L. Rep. 20,314 ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs-Appellants, v. TENNESSEE WATER QUALITY CONTROL BOARD, et al., Defendants-Appellees.
• Court: Tennessee Court of Appeals

Page 776

660 S.W.2d 776

14 Envtl. L. Rep. 20,314

ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs-Appellants, v. TENNESSEE WATER QUALITY CONTROL BOARD, et al., Defendants-Appellees.

Court of Appeals of Tennessee,

Middle Section.

April 7, 1983.

Permission to Appeal Denied by

Supreme Court July 25, 1983.

Frank M. Fly, Murfreesboro, James Robertson, Claudia Ribet, William D. Brighton, Washington, D.C., Joe W. McCaleb, Hendersonville, James T.B. Tripp, New York City, for plaintiffs/appellants.

Herbert S. Sanger, Jr., Gen. Counsel, James E. Fox, Associate Gen. Counsel, Brent R. Marquand, Thomas C. Doolan, Tennessee Valley Authority, Knoxville, Lon P. McFarland, Glenn L. Cox, Columbia, Lee Breckenridge, Asst. Atty. Gen., William Hubbard, Chief Deputy Atty. Gen., Nashville, for defendants/appellees.

OPINION

CANTRELL, Judge.

The Tennessee Valley Authority, joined by the Upper Duck River Development Agency, Marshall and Maury Counties, and the cities of Columbia and Lewisburg, petitioned the Tennessee Water Quality Control Board for certification under Section 401 of the Federal Water Pollution Control Act and a permit under Section 7 of the Tennessee Water Quality Control Act, allowing TVA to complete the Columbia Dam and impound the waters of the Duck River. A divided board granted the certificate and permit despite opposition from the appellants, Environmental Defense Fund, Inc., Tennessee Scenic Rivers Association, Inc., Tennessee Citizens for Wilderness Planning, Inc., Tennessee Environmental Council, Inc., and the Sierra Club. On review, the Chancery Court of Davidson County affirmed the decision. The appellants contend that the Board's action involves an illegal ad hoc amendment of its own rules and regulations, and an improper allocation of the burden of proof; and further that the project would degrade the waters of the river and significantly impair its uses for water supply and fish and aquatic life.

As presently planned the Columbia Dam would impound fifty-four miles of the Duck River from just above Columbia to just below Henry Horton Park. In this area the river runs through relatively flat countryside, meaning that the lake created would be the shallowest of TVA's major reservoirs. At normal maximum water level the lake would cover 12,600 acres of land. At the winter elevation of 603 feet, the lake would cover 4,300 acres.

The river basin is also unusually rich in phosphorous, a primary plant nutrient. A nutrient-rich body of water promotes the growth of algae and other aquatic plants, which in turn causes the surface waters to be highly alkaline, depletes the dissolved oxygen in the lower waters, and causes the water to have a bad smell and taste. In general the danger in impounding such a stream is the creation of a body of water in which plant life is favored over animal life.

Where such conditions exist, releases from the reservoir are likely to pass the poor water conditions to the river downstream.

Section 401 of the Federal Water Pollution Control Act, 33 U.S.C. § 1341, requires certification from the appropriate state agency that applicable federal standards are met before a federal licensing agency will grant a permit for construction of projects such as the Columbia Dam. The Tennessee Water Quality Control Act also requires that a state permit be obtained for such projects. T.C.A. § 70-330.

Although TVA started work on the dam several years prior to the hearings in this case, the application for certification and a permit finally came before the board in 1980 when the board decided to hold an evidentiary hearing on both.

The requirements that an applicant for a certificate/permit must satisfy are set forth in the Tennessee Water Quality Control Act, § 70-324 to 342, and in the various standards of quality adopted by the board pursuant to the authority given in that act. Under T.C.A. § 70-330(e) no permit may be issued "for an activity which would cause a condition of pollution either by itself or in combination with others." "Pollution" is defined in T.C.A. § 70-326(u) as:

"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:

(1) As will result or will likely result in harm, potential harm or detriment of the public health, safety, or welfare; or

(2) As will result or will likely result in harm, potential harm or detriment to the health of animals, birds, fish, or aquatic life; or

(3) As will render or will likely render the waters substantially less useful for domestic, municipal, industrial, agricultural, recreational, or other reasonable uses; or

(4) As will leave or will likely leave the waters in such condition as to violate any standards of water quality established by the board.

The board has classified all streams in the state according to whether they are used or can be used for the following purposes: domestic water supply, industrial water supply, fish and aquatic life, recreation, irrigation, livestock watering and wildlife uses, and, finally, navigation. With the exception of one small stretch of the Duck River below the City of Columbia, the portions of the stream affected by the Columbia Dam project include all the uses except navigation.

For each intended use the board then adopted limits for certain physical and chemical properties of the water that indicate water quality. (We will refer to these properties hereafter as the criteria.) The criteria involved in this case are:

Dissolved oxygen

pH (a measure of the acidity or alkalinity of the water)

Temperature

Hardness or mineral compounds

The criteria vary according to the use planned for the water in the stream. As one would expect, the criteria for recreational uses are more stringent than are the criteria for irrigation or industrial uses. However, the pH range is 6.0 to 9.0 for all uses except the fish and aquatic life use in which the range is 6.5 to 8.5. Tenn.Admin.Comp. 1200-4-3-.03. The same is true of the temperature requirements. For all uses except the livestock and irrigation uses the criteria require temperatures below 30.5? centigrade with no more than a 2? centigrade variation in one hour. Id. In general the criteria require 5.0 miligrams of dissolved oxygen per liter measured at a depth of five feet. Id.

In addition to the above criteria and in an attempt to further protect waters of exceptional quality, the board has adopted a Tennessee Antidegradation Statement. The heart of the Antidegradation Statement is found in the second paragraph:

The Criteria and Standards shall not be construed as permitting the degradation of waters whose existing quality is better than the established standards unless and until it is affirmatively demonstrated to the Tennessee Water Quality Control Board that a change is justifiable as a result of necessary economic or social development and will not interfere with or become injurious to any assigned uses made of such waters. In no case will water quality be degraded below the base levels set forth in the criteria for the protection of the reasonable and necessary uses described herein. Additionally, no degradation shall be allowed in high quality waters which constitute an outstanding National resource, such as; waters of National and State parks and wildlife refuges, and waters of exceptional recreational or ecological significance.

Tenn.Admin.Comp. 1200-4-3-.06(2)

Faced with the application of these rules the board decided on a bifurcated hearing. The first phase dealt with the question of whether the project would cause violations of water quality criteria or degrade the Duck River and whether the Duck River constitutes an "outstanding resource" under the Antidegradation Statement. The second phase was to determine if the project had social or economic merit if the proof showed the existing quality of the water is better than established standards and impoundment would result in degradation. After hearings in December 1980 and January 1981, the board issued its final decision and order, finding as a fact that the waters of the river now infrequently violate its standards of quality. The board also found that after impoundment there would be more violations, particularly in the dissolved oxygen, pH and temperature levels. These findings are:

1. Above the dam, d.o. [dissolved oxygen] will be above 5.0 milligrams per liter in the epilimnion [the upper or warm layer of the lake water] except for a few insignificant excursions and the annual fall "turnover". The d.o. in the waters of the hypolimnion [the lower or cold layer of the lake water] will be substantially less than 5.0 milligrams per liter. Below the dam, there will be greater variability of d.o.--the mean will be higher and the minimums will be lower. d.o. should be above 5 milligrams per liter in the mixed releases from the dam without significant exception. There may be noticeable odors caused by gaseous H sub2 S in the vicinity of the dam.

2. Above the dam, based on Normandy, excursions with high pH's can be expected at certain times of the year. Different levels of pH may be ideal for different purposes of treatment. (EPA Quarterly Criteria) There will be diurnal fluctuation of pH in the reservoir from 7.3 to 9.5, pH in the epilimnion will be higher than 8.5 and 9.0 on occasions due to photosynthesis. pH will also be outside the range of 6.5 to 8.5 at certain times. Fluctuations of pH in released waters below Columbia Dam are likely at times to exceed 1.0 unit in 24 hour periods. (The evidence does not support quantification of these deviations). (Anderson 982-83) (See EDF proposed finding 39). Data from below Normandy Dam indicate that pH below Columbia Dam would sometimes be greater than 9.0 reflecting the release of epilimnetic waters. (State exhibit 11; (see Appendix C of EDF's General Notes)....