BusinessTN

In the continuing battles over land and water use in Tennessee, the simplest questions are often the most difficult to answer. Thanks to complex and oblique requirements -- further burdened by a history of case law -- land use issues often deteriorate into a back and forth between builders and activists about what can and cannot be done to a piece of property.

But this summer, members from both the environmental and development communities stood by and watched as the state legislature passed an act that it hopes will cut a clear path through the statutory thicket governing a simple question: What is a stream?

Passed last session and signed into law by Gov. Phil Bredesen in June, the Wet Weather Conveyance and Stream Determination Protocol Act of 2009 seeks to provide builders and regulators with specific guidelines to help determine if a channel of water is a stream or an unregulated wet weather conveyance (WWC).

"There was often confusion or at least disagreement between the regulating community and the state environmental department or even environmental groups as to what constituted a stream that required protection," says William Penny, an attorney with Stites and Harbison in Nashville.

As the representative of the Home Builders Association of Tennessee, the Tennessee Mining Association and the Tennessee Responsible Water Coalition, Penny is keenly aware of the shaky ground on which previous regulations balanced and became one of the principal writers of the new legislation.

At issue are not major streams that run year-round. Rather, questions revolve around smaller waterways that are dry most of the time and don't flow from other water sources. But when developers set out to build over such channels, the difference in definition between a stream and a WWC becomes important.

"The situations are so variable on the ground, and believe me we've tried over the years to come up with something that would just be crystal clear, that everybody could know what's regulated and what's not," says Dan Eagar, the manager of the division of water pollution controls at TDEC. "The process is perceived as being a little bit inconsistent or mysterious -- people don't know what we regulate. [The act] will allow people to be on the same page."

When a stream is impacted, a builder must by law apply for a permit, go through a hearing and pay for a mitigation; WWCs don't require any such application process. But because of a lack of clarity in the definition of a stream, channels that are flagged as WWCs are open to debate.

"People would go out and not flag something because it clearly looked like a WWC," Penny says. "What was happening was either the department would change that determination or an environmental group would challenge it after the permit was issued."

The previous guidelines did not define a stream but rather set up qualifications for what constituted a WWC. If a body of water was not a WWC, it was a stream. When writing the legislation, Penny included these WWC qualifications into the legal determination for streams.

According to the new law, four basic requirements determine whether a body of water is a WWC. The first states that WWCs only flow in response to precipitation runoff in the surrounding area. The next qualification states that WWCs are always above the groundwater table, meaning the level of ground where saturation collects. Another qualification says a WWC cannot be a drinking water source. The final -- and most controversial -- determination is if a body of water supports life.

"Obviously, if you have fish swimming in a channel, then it's probably going to be a stream; there's no question about that," Penny says. "But what happens if you have one lone desiccated caddisfly shell that's sitting there? Could you say, based on that, that this is a stream?"

In past legal disputes over classification, the presence of a single insect or aquatic species has been the ground for prolonged debate. But whereas the former qualification was hazy as to what type of presence determines the classification, the new legislation tries to clarify the issue by saying a hydrological and biological analysis must be done on a channel to indicate whether or not multiple populations of organisms can be supported over a period of time. If the water flow can't support life, then the channel isn't a stream.

"There has to be multiple populations of the certain kinds of organism, plus you must have the hydrology. If you have both of those features, it's a stream," Penny explains.

Now that the law is sitting in the books, the state's Water Quality Control Board has been tasked with developing a series of guidelines that reflect the new statute. Penny says his clients have small but significant issues with some of the initial guidelines presented by the board. Mainly, Penny worries the language of the guidelines apes too much from the North Carolina code -- considered the gold standard of water classification -- by allowing secondary field indicators to count toward the differentiation of stream.

"Those indicators were nice for North Carolina, but they're not tied into our statute," he explains. These indicators allow characteristics like soil texture and water channel sinuosity to count toward classification, whereas the new Tennessee act adheres solely to the aforementioned four criteria.

Moving forward, all stakeholders will have the opportunity to publicly comment and work with the board to sculpt the guidelines to serve the new law. Penny is confident the legislation represents a significant step forward that all parties will appreciate.

"I'm hoping that we'll be able to clarify, so we won't have much confusion," he says.