IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 27, 2012 Session
E. RON PICKARD and LINDA PICKARD, as TRUSTEES OF THE
SHARON CHARITABLE TRUST and as INDIVIDUALS v.
TENNESSEE DEPARTMENT of ENVIRONMENT AND CONSERVATION,
TENNESSEE WATER QUALITY CONTROL BOARD and TENNESSEE
MATERIALS CORPORATION
Direct Appeal from the Chancery Court for Davidson County
No. 09-2298-III Ellen H. Lyle, Chancellor
No. M2011-02600-COA-R3-CV - Filed September 4, 2012
The Tennessee Department of Environment and Conservation issued a draft permit allowing
a proposed rock quarry to discharge storm water and wastewater into a nearby creek. Owners
of property allegedly affected by the discharge filed a declaratory order petition with the
Water Quality Control Board, seeking a declaration construing the rules regarding the
protection of existing uses of waters. The Water Quality Control Board dismissed the petition
as not ripe. The Tennessee Department of Environment and Conservation subsequently
issued a final permit to the quarry and the property owners filed both a permit appeal and
another declaratory order petition with the Water Quality Control Board. The Water Quality
Control Board again dismissed the declaratory order petition. The property owners
subsequently filed a petition for a declaratory judgment in the Davidson County Chancery
Court. The Water Quality Control Board and the Tennessee Department of Environment and
Conservation argued that the petition was not ripe and that the property owners had not
exhausted their administrative remedies. In addition, the Water Quality Control Board and
the Tennessee Department of Environment and Conservation argued that Tennessee Code
Annotated Section 69-3-105(i) precluded the property owners from bringing a declaratory
order petition prior to issuance of a permit. The trial court ruled in favor of the property
owners and issued a declaratory judgment on the construction of Tennessee Compiled Rule
and Regulation 1200-04-03-.06. We affirm the trial court’s rulings with regard to ripeness,
exhaustion of administrative remedies, and Tennessee Code Annotated Section 69-3-105(i),
but reverse the grant of summary judgment on the construction of Tennessee Compiled Rule
and Regulation 1200-04-03-.06 and remand for further proceedings.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed
in Part; Reversed in Part; and Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and R ICHARD H. D INKINS, J., joined.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Elizabeth Parker McCarter, Senior Counsel; and R. Stephen Jobe, Senior Counsel, for
appellants, Tennessee Water Quality Control Board.
Robert J. Martineau, Jr. And Patrick N. Parker, Nashville, Tennessee, for the Appellant,
Tennessee Department of Environment and Conservation.
Elizabeth L. Murphy, W. David Bridgers, and Robert Anthony Peal, Nashville, Tennessee,
for the appellees, E. Ron Pickard and Linda Pickard as Trustees for the Sharon Charitable
Trust and as Individuals.
OPINION
I. Background
The subject matter in this case has been the subject of a separate appeal to this Court
in Pickard v. Tennessee Department of Environment and Conservation, M2011-01172-
COA-R3-CV, 2012 WL 3329618 (Aug. 14, 2012) (hereinafter, “Pickard I”). Because the
underlying facts of these cases are the same, we take the facts from our prior opinion:
Plaintiffs/Appellees Ron and Linda Pickard are the
Trustees of the Sharon Charitable Trust (“the Trust,” and
together with Mr. Pickard and Mrs. Pickard, “Appellees”). The
Trust is a non-profit corporation managing the Horse Creek
Wildlife Sanctuary and Animal Refuge (“the Sanctuary”) in
Hardin County, Tennessee. The Sanctuary is a recreation area
open to the public for fishing, camping, and other outdoor
activities. Horse Creek runs through the property.
This lawsuit involves the planned construction of a rock
quarry in an undeveloped parcel adjacent to the Sanctuary (“the
Quarry”). The Quarry will be owned and operated by Tennessee
Materials Corporation. In order to begin construction, the
Quarry applied for a Nationwide Pollution Discharge
Elimination System discharge permit (“the permit”) from the
Tennessee Department of Environment and Conservation
(“TDEC”). The Quarry applied for a permit in order to discharge
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wastewater and storm water from the Quarry into an unnamed
tributary of Horse Creek, which runs onto the Sanctuary’s
property, near recreational areas.
Pursuant to the request for a permit, Amy Fritz, a
biologist for TDEC’s Jackson field office, conducted a standard
stream health survey of a segment of Horse Creek in accordance
with TDEC’s Quality System Standard Operating Procedures for
Macroinvertebrate Stream Surveys (“Standard Operating
Procedures”). The purpose of the stream survey was to evaluate
the “biological integrity” parameter of the water quality
standards for waters classified for fish and aquatic life in
accordance with the Standard Operating Procedures. Ms. Fritz’s
survey of the segment of Horse Creek that would be directly
affected by discharge from the Quarry yielded a Biological
Index Score of 30. According to the Standard Operating
Procedures, this Biological Index Score meant that Horse Creek
was slightly impaired, or not fully supporting its classified uses
for aquatic life. The survey also revealed that the stream bed
was suffering the effects of bank instability and that the bed
scored below the habitat assessment guideline for maintaining
habitat protective of aquatic life. The survey yielded a habitat
score of 127, meaning that Horse Creek is moderately impaired
with regard to habitat.
Notwithstanding Ms. Fritz’s findings, TDEC issued a
draft permit to the Quarry in August 2008. A draft permit is
merely a tentative determination and serves to notify the public
of a planned discharge. Only after the draft permit is made
public and citizens are given the opportunity to comment on the
draft, will a final permit be issued. The draft permit proposed to
allow the Quarry to discharge wastewater and storm water into
an unnamed tributary of Horse Creek. The draft permit limited
the frequency of discharges, however, and also placed
limitations on the characteristics of the discharged wastewater.
For example, Total Suspended Solids, or sediment, were limited
to 40.0 milligrams per liter for any one day, and pH was
similarly limited to 6.0 to 9.0 standard units. Other limitations
regarding visible scum, oil, or other potentially hazardous
discharges were further outlined. The draft permit, however,
stated that Horse Creek did not qualify as “Exceptional
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Tennessee Waters”1 under the state Antidegradation regulations2
and concluded that “[t]herefore, the materials reviewed indicate
that ‘available conditions’ exist in the receiving stream.” The
draft permit made no mention of the adverse results of the
stream survey, including the findings regarding impaired aquatic
life and habitat.
1
Tennessee Compiled Rules and Regulations Rule 1200.04.03.06(4)(a) provides that waters will be
classified as “Exceptional Tennessee Waters” if any of the following criteria are met:
1. Waters within state or national parks, wildlife refuges, forests,
wilderness areas, or natural areas;
2. State Scenic Rivers or Federal Wild and Scenic Rivers;
3. Federally-designated critical habitat or other waters with documented
nonexperimental populations of state or federally-listed threatened or
endangered aquatic or semi-aquatic plants, or aquatic animals;
4. Waters within areas designated as Lands Unsuitable for Mining pursuant
to the federal Surface Mining Control and Reclamation Act where such
designation is based in whole or in part on impacts to water resource
values;
5. Waters with naturally reproducing trout;
6. Waters with exceptional biological diversity as evidenced by a score of
40 or 42 on the Tennessee Macroinvertebrate Index (or a score of 28 or 30
in subecoregion 73a) using protocols found in TDEC's 2006 Quality
System Standard Operating Procedure for Macroinvertebrate Stream
Surveys, provided that the sample is considered representative of overall
stream conditions; or
7. Other waters with outstanding ecological, or recreational value as
determined by the department. When application of this provision is a
result of a request for a permit, such preliminary determination is to be
made within 30 days of receipt of a complete permit application.
If waters are classified as “Exceptional Tennessee Waters:”
[N]o degradation will be allowed unless and until it is affirmatively
demonstrated to the Department, after full satisfaction of the following
intergovernmental and public participation provisions, that a change is
justified as a result of necessary economic or social development and will
not interfere with or become injurious to any classified uses existing in
such waters.
Tenn. Comp. R. & Reg. 1200.04.03.06(4)(c).
2
According to TDEC, Antidegradation policy is to establish a greater level of protection for those
waters that are identified to be of high quality.
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The draft permit was made public and concerned citizens
were given the opportunity to comment either in writing or at
public hearings. The Appellees participated in the commenting
process. A summary of the comments issued by TDEC
provides:
Commenter said that Horse Creek has aquatic life
. . . that was not properly evaluated or considered
in this permit.
Commenter said that the antidegradation
regulations have not been followed or met with
regard to this proposed permit or by the applicant
in the application process. Horse Creek was
improperly identified as not qualifying as
“exceptional waters,” as the biological and
deliberative process were flawed and inadequate,
failing to consider the actual conditions and uses.
Pickard I, 2012 WL 3329618, at *1–2.
II. Proceedings before the Water Quality Control Board
As is relevant to this case, the Appellees filed a Petition for a Declaratory Order3 with
the Tennessee Water Quality Control Board (“the Board,” and together with TDEC,
“Appellants”) on January 14, 2009, prior to the completion of the public comment period and
issuance of a final permit. As we stated in Pickard I:
The Appellees alleged that the permit application and draft
permit contained inadequacies that prevented a proper
application by TDEC. The Appellees further alleged that TDEC
misapplied the Antidegradation rule and thereby mistakenly
failed to conclude that the impairments revealed by the stream
3
This case concerns the proper application of the Uniform Administrative Procedures Act to a
petition for declaratory relief. As such the phrases “declaratory order” and declaratory relief” will be used
throughout this decision. For clarity, we note that the phrase “declaratory order,” as it is used throughout this
opinion, refers to the type of declaratory relief that may be issued by the agency, here the Board. See Tenn.
Code Ann. § 4-5-223. In contrast, the phrase “declaratory judgment” refers to the type of declaratory relief
that may be rendered by the Chancery Court. See Tenn. Code Ann. § 4-5-225.
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survey meant that there were unavailable conditions 4 in Horse
Creek warranting greater protections.
Pickard I, 2012 WL 3329618, at *2.
TDEC moved to dismiss the petition and the Board entered an order dismissing the
case on February 18, 2009. The order stated:
The Board declines to convene a contested case at this time
based on the stipulated fact that the permit at issue has not been
issued or denied therefore there is no final administrative action
by the [TDEC].
* * *
REASONS FOR DECISION
This ORDER of the Board is entered to maintain the
delegated responsibilities of the Division and the Board; to
prevent against the Board rendering impermissible advisory
opinions based on hypothetical facts; and to protect the waters
and the citizens of the state of Tennessee.
Pickard I, 2012 WL 3329618, at *2–3.
A final permit was issued to the Quarry on March 13, 2009. The terms of the final
permit were substantially similar to the draft permit and likewise placed limits on the Total
Suspended Solids and pH in waste water discharged by the Quarry. As we stated in Pickard
I:
The permit referenced the Tennessee Antidegradation Policy, as
well as the stream survey conducted prior to the issuance of the
draft permit, however, the permit rationale concluded that:
4
Unavailable conditions exist where water quality is at, or fails to meet, the criterion for one or more
parameters. In unavailable conditions, new or increased discharges of a substance that would cause or
contribute to impairment will not be allowed. See Tenn. Comp. R. & Reg. 1200-4-3.06(2). In contrast,
available conditions occur where water quality is better than the applicable criterion for a specified
parameter. In available conditions, new or additional degradation for that parameter will only be allowed if
the applicant has demonstrated to the department that reasonable alternatives to degradation are not feasible.
See Tenn. Comp. R. & Reg. 1200-4-3.06(3).
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Based on the survey results and review of all the
data, neither the unnamed tributary nor the reach
of Horse Creek near the proposed discharge
qualifies as Exceptional Tennessee Waters. The
data do not indicate the presence of Federal
and/or State listed threatened or endangered
species of aquatic life as occurring within a two-
mile radius of the proposed discharge monitoring
point.
In addition to the final permit and the rationale, TDEC issued a
summary of the comments received during the public
commenting period, including the comments set forth above
regarding the Antidegradation rule. In response to those
comments, TDEC stated:
There was significant public interest in classifying
Horse Creek as Exceptional Tennessee Waters.
Many comments were received from the public
that specifically requested that status due to the
public’s enjoyment of the facilities at the Horse
C r e e k W i l d l i f e S a n c tu a r y. H o w e v e r ,
antidegradation rules and field sampling protocols
were followed, and the receiving streams (Horse
Creek and its unnamed tributary) were not found
to be Exceptional Tennessee Waters, pursuant to
the Rules of the Tennessee Department of
Environment and Conservation, Chapter 1200-4-
3-.06(4)(a). Biological sampling followed semi-
quantitative protocols specified in the [Standard
Operating Procedures]. The sample reach was at
a location of sufficient watershed size and stream
order for comparison to ecoregion biocriteria.
Pickard I, 2012 WL 3329618, at *3.
On April 6, 2009, the Appellees filed a “Permit Appeal and Declaratory Order
Petition” with the Board challenging the decision to issue the final permit and requesting a
contested case. As we stated in Pickard I:
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The April 6, 2009 appeal recited essentially the same grounds as
the former declaratory judgment action previously dismissed by
the Board. The petition specifically requested that the Board
find that TDEC improperly concluded that Horse Creek had
available conditions. According to the Appellees, a proper
application of the Antidegradation rule required a finding of
unavailable conditions due to the impaired ratings in aquatic life
and habitat. With a finding of unavailable conditions, the
Appellees argue that the existing uses of the creek should be
given higher protections.
Pickard I, 2012 WL 3329618, at *3.
On May 15, 2009, TDEC filed a motion to dismiss the declaratory order claim. The
Appellees filed an amended Permit Appeal and Declaratory Order Petition on May 29, 2009.
However, the Board granted the Appellants' motion to dismiss the declaratory order claim
on October 6, 2009. The permit appeal remained pending before the Board.
III. Proceedings in Chancery Court
On December 4, 2010, Appellees filed a petition for declaratory judgment pursuant
to Tennessee Code Annotated Section 4-5-225 in the Chancery Court of Davidson County.
The petition alleged that the Appellees had filed for a declaratory order with the Board on
January 14, 2009, but that the Board had “declined to convene a contested case.” The petition
further alleged that the Appellees had filed another petition for declaratory relief with the
Board concurrent with their appeal of the final permit issued by the Board, but that the Board
had dismissed the declaratory relief claim. Accordingly, the Appellees argued that their
administrative remedies under Tennessee Code Annotated Section 4-5-225 had been
exhausted and that their remedy was to seek a declaratory judgment from Chancery Court.
The petition in Chancery Court specifically sought:
[A] declaratory [judgment] as to the validity and or applicability
of the [] Board’s Revised Anti-Degradation Rule, found at 1200-
4-3-.06, the Criteria for Water Use, found at 1200-4-3-.03, and
the Water Quality Control Act. [Appellees] contend[] that these
rules and statutes, specifically §69-3-108(e) [now (g)] and §69-
3-102, require more than a mere guess or supposition in finding
that the discharge will not cause or contribute to a condition of
pollution, and in concluding that degradation will not occur
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because degradation is prohibited by the Rules. [Appellees]
contend that the rule does not allow additional discharges to
streams deemed to have unavailable conditions,” and that
characterizing the new discharges as de minimis in issuing a
permit cannot comply with the rule when the permit
contemplated and indeed, permits new discharges. [Appellees]
contend[] that the interpretation and application of the Anti-
Degradation rules as to mining activities does not comply with
§69-3-108(g) when a receiving stream that is impaired, within
the meaning of the Anti-Degradation Rule, will receive
industrial wastewater discharges.
17. [Appellees] seek a declaratory [judgment] regarding whether
[t]he Anti-Degradation Rule requires TDEC to assess the
applicable parameters of water quality . . . , and to determine
whether those parameters created “available conditions” or
“unavailable conditions,” as those terms are defined by the Anti-
Degradation Rule. TDEC assessed the “biological integrity” and
“habitat” parameters for Horse Creek following the protocols set
forth in TDEC’s [Standard Operating Procedures], as the water
criteria rules require, and those assessments demonstrated that
Horse Creek’s biological condition was “slightly impaired” and
its was “moderately impaired” with respect to the habitat
assessment guidelines. According to the Anti-Degradation Rule,
“unavailable conditions exist where water quality is at, or fails
to meet, the criterion for one or more parameters.” . . .
[Appellees] contend[] that the rule is not valid because it lacks
specificity and cannot be properly applied without a scientific
basis or analysis for determining the type of conditions available
in the stream and or whether measurable additional discharges
would be ‘de minimis’ as defined in the Rules. [Appellees]
contend that pursuant to Tenn. Code Ann. §4-5-223, an
aggrieved party with a recognized interest in the area of the
discharges has the right, under the state Water Quality Control
Act, to a scientific application of the Anti-Degradations rules to
reasonably ensure compliance with §69-3-108(g).
18. [Appellees] further contend as part of the [d]eclaratory
[judgment] claim that TDEC’s action in issuing the permit
without the application of a scientific analysis and a reasoned
finding of impacts measured against the existing stream
conditions violated the [Appellees] rights and the State’s
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obligations under the Water Quality Control Act and
promulgated water quality rules.
The Appellees further alleged that the Quarry had been modified since issuance of the permit
and was no longer in compliance with the permit terms. Thus, the Appellees argued that “the
issuance of the permit did not end the question of the applicable rules and their interpretation
or application, and the on-going activities on the site evidence the need for clarification of
the enforceable rights of the [Appellees].” Accordingly, the Appellees asked for a declaration
that:
1) The purpose of the Water Quality Control Act is to abate
existing pollution of the waters of Tennessee, reclaim polluted
waters, to prevent 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;
2) The purpose of the Rules promulgated by the Water Board is
to accomplish the purposes of the [Water Quality Control] Act;
3) Anti-Degradation Rule 1200-4-3-.06(2) does not allow new
or increased discharges of a substance that would cause or
contribute to a condition of impairment. With respect to all
parameters of the Water Quality Control Criteria other than
habitat, the term “de minimis” is not applicable in determining
what would cause or contribute to a condition of impairment in
the presence of unavailable conditions. With respect to all of
those criteria other than habitat, there is no de minimis
exception, and no discharges are permitted that would cause or
contribute to a condition of pollution;
3) A determination of whether or not a discharge will “cause or
contribute to a condition of impairment” requires, at a minimum,
a scientifically sound, site-specific assessment of the receiving
stream’s capacity to assimilate the discharge;
4) Even if TDEC were correct that there is a “de minimis”
exception for discharges into waters with unavailable
conditions, the determination of a “de minimis” impact in
streams deemed to have “unavailable conditions” would require,
at a minimum, a site-specific and scientifically-sound demonstration of how the proposed
impact complies with the definition of “de minimis” found in the Water Quality Criteria
Rules; and
5) TDEC failed to properly apply the Anti-Degradation Rule as
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it relates to “unavailable conditions” when reviewing and
issuing the permit for [the Quarry].
Also on December 4, 2009, the Appellees filed a petition for judicial review of the
Board’s refusal to consider its declaratory relief petition filed in conjunction with the permit
appeal, which is the subject of a prior case, Pickard I, No. M2011-01172-COA-R3-CV, 2012
WL 3329618 (Tenn. Ct. App. Aug. 14, 2012).
The Board filed an answer to the petition for declaratory judgment on February 1,
2010, asserting that the Chancery Court lacked jurisdiction to consider the petition because
the Appellees had failed to exhaust their administrative remedies and asking the Chancery
Court to decline to issue a declaratory order because the pending permit appeal was the
appropriate vehicle for resolution of the Appellees’ concerns.
The Appellees moved for summary judgment on July 14, 2010, stating that a
determination of the issues in the motion would be dispositive of the case. The motion asked
for a determination regarding:
1) Whether Tennessee’s Antidegradation regulations require a
finding that “unavailable conditions” . . . exist when water
quality is at or fails to meet, the criteria for one or more
parameters, which in this case was the failure to meet the criteria
for two recognized parameters, Biological Integrity and Habitat.
2) When a finding is made of “unavailable conditions,” whether
the application of those Antidegradation regulations requires
TDEC to utilize some scientifically sound process to determine
if a proposed new discharge will “cause or contribute” to the
existing documented condition(s) of impairment.
Appellees supported their motion with portions of various videotaped depositions, including
those of Ms. Fritz, the field biologist, and Gregory Denton, an employee of the TDEC.5
The Board filed a motion to dismiss on March 11, 2011, arguing that the trial court
lacked subject matter jurisdiction to consider the petition. The Chancellor entered an order
on April 11, 2011 concerning both the case on appeal and the declaratory relief action filed
5
Only portions of Mr. Denton’s deposition were included in the record on appeal. Although we
presume that Mr. Denton is an employee with the TDEC because he opines on the procedures taken by the
TDEC in this and like cases, no where in this seven volume record is there any indication as to the exact
position Mr. Denton holds with the TDEC.
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in conjunction with the permit appeal. As we previously stated in Pickard I:
The trial court ruled that:
In sum, then the Court’s construction of the
interplay between [Tennessee Code Annotated
Section] 69-3-105(i) [regarding a permit appeal]
and [Tennessee Code Annotated Sections] 4-5-
223 through 225 is that a petition for declaratory
relief pursuant to section 4-5-223 related to the
issuance of a permit may be requested by an
aggrieved party in a permit appeal under section
69-3-105(i). This construction is based on: (1) the
flexible and expansive text of section 69-3-105(i)
that “any of the issues” raised during the
permitting process “may” be presented in the
appeal; (2) the need to assure that the right of an
aggrieved party to obtain a ruling as a matter of
law regarding the validity or application of a
water quality statute or regulation is maintained
for these reasons . . . , that declaratory relief has
become such a hallmark in the law; and [(3)] the
same standard of review and contested case
procedure are used in the permit appeal and
petition for declaratory order.
Accordingly, the trial court ruled that the Board erred in refusing
to issue the requested declaratory order.
The trial court went on to note the “unusual procedural
posture” in the case regarding the simultaneous filing of a
petition for judicial review of the Board’s refusal to issue a
declaratory order and the separate petition for a declaratory
judgment from the Chancery Court. Because the trial court
perceived the issues to be identical in both the petition for
judicial review and the petition for a declaratory judgment, the
trial court ruled that its decision reversing the Board’s refusal to
issue a declaratory order in conjunction with the permit appeal
rendered the separate petition for a declaratory judgment from
the Chancery Court moot. Accordingly, the trial court dismissed
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the separate petition for declaratory judgment and ordered that
the parties return to court for a hearing on whether the petition
for a declaratory order filed in conjunction with the permit
appeal would be remanded back to the Board for consideration.
Pickard I, at *5–6.
The Appellees filed a timely motion to alter or amend the trial court’s ruling that the
case-at-bar was rendered moot by the trial court’s decision in the judicial review case. The
Appellees argued that the two petitions sought different relief and, therefore, the petition for
a declaratory judgment was not rendered moot by the decision reversing the Board’s refusal
to issue a declaratory order. On May 10, 2011, the trial court entered an order modifying its
previous order rendering this case moot, and ruled that this case could proceed. The order
stated:
In an April 11, 2011 Memorandum and Order, this Court
concluded that the above captioned lawsuit was moot and
dismissed it. After considering the [Appellees’] motion to alter
or amend, the Court . . . concludes that it erred. This case is not
moot. Instead, the Court has subject matter jurisdiction of this
case and it is ripe pursuant to Tennessee Code Annotated
Sections 4-5-223(a)(2) and 225.
The error this Court made is that it concluded that the
disposition by the Board below of [Appellees’] claim for a
declaratory order from the Board under the Uniform
Administrative Procedures Act (“UAPA”) was a dismissal of the
case (on the grounds that the claim was premature). That
conclusion of the Court was incorrect. Instead, the Board
refused to determine the matter, as seen from a review of the
Board’s order. The order states that its disposition is “pursuant
to Tennessee Code Annotated Section 4-5-223(a)(2).” That is
the section of the UAPA that provides, “The agency shall . . .
[r]efuse to issue a declaratory order, in which event the person
petitioning the agency for a declaratory order may apply for a
declaratory judgment as provided in §4-5-225.” Reference to
section 4-5-225 reveals that jurisdiction is vesting in this Court
to determine the matter upon refusal by the agency. This case is
not moot. It is pending independently before this Court pursuant
to Sections 4-5-223(a)(2) and 225 upon the Board’s refusal to
take up the matter.
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It is therefore ORDERED that the Court alters and
amends its April 11, 2011 ruling and provides herein: this case
is not dismissed for mootness, and it is reinstated to proceed as
a petition for a declaratory judgment pursuant to section 4-5-
225. In all other respects the April 11, 2011 Memorandum and
Orders remains the ruling of the Court.
* * *
It is additionally ORDERED that the next step in this
case is to finish the briefing and conduct a hearing on
petitioner’s motion for summary judgment. . . .
The Board filed a motion for an interlocutory appeal on June 9, 2011. The trial court
denied the motion by order of July 5, 2011. TDEC filed an answer to the petition for
declaratory judgment on July 8, 2011, asserting essentially the same defenses as the Board.
The Appellees filed another motion for summary judgment on August 3, 2011, again
stating that resolution of the issues in the motion would be dispositive of the case. The
Appellees specifically sought a declaration that:
1. [Appellees] have “standing,” a legally recognizable
interest in Horse Creek that they seek to protect and for which
this case presents a justiciable controversy;
2. Tennessee’s Antidegradation regulations require a
finding that “unavailable conditions,” . . . . exist when water
quality is at or fails to meet the criteria for one or more
parameters, which in this case was the failure of Horse Creek to
meet the criteria for the two recognized parameters of Biological
Integrity and Habitat; and
3. When unavailable conditions exist, the
Antidegradation rules require a scientifically-sound process to
determine if a proposed new discharge will “cause or
contribute” to the existing, documented conditions of
impairment. Insofar as the rule does not require such a process,
it is invalid and violates the Tennessee Water Quality Control
Act. Insofar as TDEC applies the rules without using such a
process, the application violated the rule and the Act.
The trial court heard the motion for summary judgment on September 9, 2011. The
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Board and TDEC first argued that the Appellees did not have standing to contest the issuance
of the permit and that the case was not ripe for review. In addition, the Board and TDEC
relied on Mr. Denton’s deposition testimony to argue: 1) Biological Integrity and Habitat are
not parameters within the meaning of the Antidegradation rule; and 2) even if the court finds
that Biological Integrity and Habitat are parameters, a finding that Horse Creek is impaired
as to those parameters does not necessitate a finding that the creek is impaired as to pH and
Total Suspended Solids, the only type of pollutants sought to be discharged by the Quarry.
In contrast, the Appellees argued that the plain language of the Antidegradation rule required
a finding that both Biological Integrity and Habitat are parameters for the type of water at
issue and that a finding of impairment for any parameter requires a finding that water is
unavailable, triggering increased protections.
The trial court entered an order on October 17, 2011, containing detailed findings of
fact and conclusions of law. The trial court first concluded that the Appellees had standing
to seek the declaratory order.6 The trial court next ruled that the case was ripe for review and
that the Appellees had exhausted all administrative remedies. The Court then concluded,
based on its earlier reasoning in the April 11, 2011 order, that the Appellees could bring a
declaratory order petition notwithstanding Tennessee Code Annotated Section 69-3-105(i)
regarding the permit appeal, discussed in more detail below. Finally, the Court agreed with
the Appellees’ substantive arguments regarding the interpretation given to the
Antidegradation rule and ruled that both Biological Integrity and Habitat were indeed
parameters, and that the impairment of these parameters required a finding that Horse Creek
has “unavailable conditions.” The trial court then dismissed, as a matter of law, the
Appellees’ final claim that the “unavailable conditions” rule is facially invalid in failing to
require a scientifically-sound method of determining whether a finding of “unavailable
conditions” will cause or contribute to a condition of impairment. The trial court found that
this argument had not been presented to the Board previously and that the rule was not vague.
Appellees do not appeal this ruling. Having disposed of all the issues in the Appellee’s
motion for summary judgment and declaratory judgment petition, the trial court found that
the judgment was final. The Appellants filed separate notices of appeal on November 16,
2011.
IV. Issues Presented
The Appellants raise the following issues for review, which are taken from their
briefs:
1. Did the trial court err in effectively reversing the
6
This ruling is not challenged on appeal.
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[Board’s] ruling that a tentative determination by the
[TDEC] on a water quality permit application that
“available conditions” exist . . . was not ripe for review
and in thereby concluding it had jurisdiction to entertain
[Appellees’] declaratory judgment action?
2. Except as expressly provided therein, does Tennessee
Code Annotated Section 69-3-105(i) preclude filing for
a declaratory order . . . once a water quality permit
application has been submitted to TDEC?
Additionally, TDEC raises the following issue, taken from its brief:
1. Did the trial court err in construing Rule 1200-04-04-.06
to require finding that there were “unavailable
conditions” . . . for the proposed discharge in the draft
permit?
V. Standard of Review
A trial court's decision to grant a motion for summary judgment presents a question
of law. Our review is therefore de novo with no presumption of correctness afforded to the
trial court's determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). “This Court
must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been
satisfied.” Mathews Partners, L.L.C. v. Lemme, No. M2008–01036–COA–R3–CV, 2009
WL 3172134, at *3 (citing Hunter v. Brown, 955 S.W.2d 49, 50–51 (Tenn. 1977)).
When a motion for summary judgment is made, the moving party has the burden of
showing that “there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may
accomplish this by either: (1) affirmatively negating an essential element of the non-moving
party's claim; or (2) showing that the non-moving party will not be able to prove an essential
element at trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008). However,
“[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or shut
up' or even to cast doubt on a party's ability to prove an element at trial.” Id. at 8. If the
moving party's motion is properly supported, “[t]he burden of production then shifts to the
nonmoving party to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd
v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The non-moving party may accomplish this by:
“(1) pointing to evidence establishing material factual disputes that were overlooked or
ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party;
-16-
(3) producing additional evidence establishing the existence of a genuine issue for the trial;
or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.
R. Civ. P. 56.06.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citations
omitted).
When reviewing the evidence, we must determine whether factual disputes exist. In
evaluating the trial court's decision, we review the evidence in the light most favorable to the
nonmoving party and draw all reasonable inferences in the nonmoving party's favor. Stovall
v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). If we find a disputed fact, we must “determine
whether the fact is material to the claim or defense upon which summary judgment is
predicated and whether the disputed fact creates a genuine issue for trial.” Mathews
Partners, 2009 WL 3172134, at *3 (citing Byrd, 847 S .W.2d at 214). “A disputed fact is
material if it must be decided in order to resolve the substantive claim or defense at which
the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a reasonable jury
could legitimately resolve the fact in favor of one side or the other.” Id. “Summary
[j]udgment is only appropriate when the facts and the legal conclusions drawn from the facts
reasonably permit only one conclusion.” Landry v. South Cumberland Amoco, et al., No.
E2009–01354–COA–R3–CV, 2010 WL 845390, at *3 (Tenn. Ct. App. March 10, 2010)
(citing Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995)). However, if there is any
uncertainty concerning a material fact, then summary judgment is not the appropriate
disposition. As stated by our Supreme Court in Evco Corp. v. Ross, 528 S.W.2d 20 (Tenn.
1975):
The summary judgment procedure was designed to provide a
quick, inexpensive means of concluding cases, in whole or in
part, upon issues as to which there is no dispute regarding the
material facts. Where there does exist a dispute as to facts which
are deemed material by the trial court, however, or where there
is uncertainty as to whether there may be such a dispute, the
duty of the trial court is clear. He [or she] is to overrule any
motion for summary judgment in such cases, because summary
judgment proceedings are not in any sense to be viewed as a
substitute for a trial of disputed factual issues.
Id. at 24–25.
VI. Analysis
A. Justiciability
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We turn first to Appellants’ procedural arguments. As we perceive it, Appellants
argue that this petition for declaratory judgment is barred by the closely related doctrines of
ripeness and exhaustion of administrative remedies because the January 2009 petition for a
declaratory order was filed prior to issuance of a final permit.
The Tennessee Supreme Court recently applied the justiciability doctrines to a claim
for declaratory relief. In explaining the application of the doctrines, the Court stated:
Although a plaintiff in a declaratory judgment action
need not show a present injury, an actual “case” or
“controversy” is still required. Cardinal Chem. Co. v. Morton
Int'l, 508 U.S. 83, 95, 113 S. Ct. 1967, 124 L. Ed. 2d 1 (1993)
(stating that “a party seeking a declaratory judgment has the
burden of establishing the existence of an actual case or
controversy”). A bona fide disagreement must exist; that is,
some real interest must be in dispute. Goetz v. Smith, 152 Tenn.
451, 278 S.W. 417, 418 (1925). Courts still may not render
advisory opinions based on hypothetical facts. Third Nat'l Bank
v. Carver, 31 Tenn. App. 520, 218 S.W.2d 66, 69 (1948). The
justiciability doctrines of standing, ripeness, mootness, and
political question continue as viable defenses. See, e.g., Texas
v. United States, 523 U.S. 296, 118 S. Ct. 1257, 140 L. Ed. 2d
406 (1998) (finding a declaratory judgment action was not ripe);
Cardinal Chem., 508 U.S. at 83, 113 S. Ct. 1967 (finding a
declaratory judgment action was moot). Moreover, in disputes
involving a state agency, one must generally exhaust the
available administrative remedies before filing a suit for
declaratory relief. See Abington Ctr. Assocs. Ltd. P'ship v.
Baltimore County, 115 Md. App. 580, 694 A.2d 165, 170
(1997); see also Tenn. Code Ann. § 4-5-225 (2005 & Supp.
2007). Subject to some exceptions, a declaratory judgment
action should not be considered where special statutory
proceedings provide an adequate remedy. Katzenbach v.
McClung, 379 U.S. 294, 296, 85 S. Ct. 377, 13 L. Ed. 2d 290(1964). This includes administrative remedies prescribed under
the Uniform Administrative Procedures Act (“UAPA”) and
other relevant sections of the Tennessee Code.
Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 837–38 (Tenn. 2008) (footnote omitted).
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In this appeal, the Appellants argue that the Appellees’ claim for declaratory relief is
not ripe because, at the time the Board declined to consider the Appellees’ January 2009
petition for a declaratory order, no final permit had been issued by TDEC. The Appellants
further point to the Board’s dismissal of the January 2009 petition, which states that the
Board declines to convene a contested case “at this time” due to issues of ripeness, to argue
that the Appellees have failed to exhaust their administrative remedies to first seek a
declaratory order from the Board.
The Tennessee Supreme Court also recently discussed the doctrine of ripeness:
Doctrines such as ripeness assist the courts in
determining whether a particular case presents a justiciable legal
issue. Norma Faye Pyles Lynch Family Purpose LLC v.
Putnam Cnty., 301 S.W.3d 196, 203 (Tenn. 2009). The ripeness
doctrine focuses on whether the dispute has matured to the point
that it warrants a judicial decision. The central concern of the
ripeness doctrine is whether the case involves uncertain or
contingent future events that may or may not occur as
anticipated or, indeed, may not occur at all. See Lewis v. Cont'l
Bank Corp., 494 U.S. 472, 479–80, 110 S. Ct. 1249, 108 L.
Ed.2d 400 (1990). . . .
Determining whether a particular dispute is ripe entails
a two-part inquiry. The first question is whether the issues in the
case are ones appropriate for judicial resolution. The second
question is whether the court's refusal to act will cause hardship
to the parties . . . . The court will decline to act “where there is
no need for the court to act or where the refusal to act will not
prevent the parties from raising the issue at a more appropriate
time.” AmSouth Erectors, LLC v. Skaggs Iron Works, Inc.,
No. W2002–01944–COA–R3–CV, 2003 WL 21878540, at *6
(Tenn. Ct. App. Aug.5, 2003) (No Tenn. R. App. P. 11
application filed) (quoting Window Gallery of Knoxville v.
Davis, No. 03A01–9906–CH–00225, 1999 WL 1068730, at *3
(Tenn. Ct. App. Nov.24, 1999) (No Tenn. R. App. P. application
filed) (emphasis omitted).
B & B Enters. of Wilson Cnty., LLC v. City of Lebanon, 318 S.W.3d 839, 848–49 (Tenn.
2010); see also Texas v. United States, 523 U.S. 296, 300, 118 S. Ct. 1257, 140 L. Ed. 2d 406-19-
(1998) (“A claim is not ripe for adjudication if it rests upon ‘contingent future events that
may not occur as anticipated, or indeed may not occur at all.’”) (quoting Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 580–81, 105 S. Ct. 3325, 87 L. Ed. 2d 409 (1985)).
The Tennessee Supreme Court has also held that the doctrine of ripeness “is closely
related to the ‘exhaustion of administrative remedies’ doctrine.’” B & B, 318 S.W.3d at 848
(citing 13B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3532.1.1 (3d ed.2008)); see also Colonial Pipeline, 263 S.W.3d 837–38
(“Ripeness and exhaustion are complementary doctrines which are designed to prevent
unnecessary or untimely judicial interference in the administrative process. ”) (quoting Ticor
Title Ins. Co. v. FTC, 814 F.2d 731, 735 (D.C. Cir. 1987)). According to our Supreme
Court:
Th[e] doctrine [of exhaustion of remedies], which prompts
courts to stay their hand until an administrative proceeding is
completed, Bailey v. Blount Cnty. Bd. of Educ., 303 S.W.3d
216, 235 (Tenn. 2010), reflects the courts' acknowledgment that
administrative agencies have special expertise with regard to the
subject matter of the proceedings before them. Colonial
Pipeline Co. v. Morgan, 263 S.W.3d 827, 839 (Tenn. 2008);
Southern Ry. v. State Bd. of Equalization, 682 S.W.2d 196, 199
(Tenn. 1984); Martin v. Sizemore, 78 S.W.3d 249, 269 (Tenn.
Ct. App. 2001). Accordingly, in most circumstances, the courts
deem it appropriate to permit administrative agencies to develop
their final position with regard to the matters before them prior
to undertaking to review the agency's decision. By doing so, the
courts not only demonstrate their respect for the administrative
process, they also assure the existence of a complete
administrative record should judicial review of the agency's
decision be sought. Colonial Pipeline Co. v. Morgan, 263
S.W.3d at 838–39.
B & B, 318 S.W.3d at 847–48. The Supreme Court further explained the purpose of this
doctrine in Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827 (Tenn. 2008), stating:
Both courts and legislatures have recognized that the exhaustion
doctrine promotes judicial efficiency and protects administrative
authority in at least three ways. First, sometimes “[j]udicial
intervention may not be necessary because the agency can
correct any initial errors at subsequent stages of the process[,
-20-
and] the agency's position on important issues of fact and law
may not be fully crystallized or adopted in final form.” Ticor
Title, 814 F.2d at 735[]. Secondly, exhaustion allows the agency
to develop a more complete administrative record upon which
the court can make its review. Efco Tool Co. v. Comm'r, 81
T.C. 976, 981, 1983 WL 14906 (1983). Finally, cases that
concern subject matter within the purview of administrative
agencies often involve “specialized fact-finding, interpretation
of disputed technical subject matter, and resolving disputes
concerning the meaning of the agency's regulations.” West v.
Bergland, 611 F.2d 710, 715 (8th Cir. 1979) (citations omitted).
Requiring that administrative remedies be exhausted often
leaves courts better equipped to resolve difficult legal issues by
allowing an agency to “‘perform functions within its special
competence.’” Id. (quoting Parisi v. Davidson, 405 U.S. 34, 37,
92 S. Ct. 815, 31 L. Ed. 2d 17 (1972)).
While the doctrine arose as a discretionary rule in courts
of equity, today many exhaustion requirements are mandated by
legislation. See Smith v. United States, 199 F.2d 377, 381 (1st
Cir. 1952). When a statute provides specific administrative
procedures, “one claiming to have been injured must first
comply with the provisions of the administrative statute.” State
v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635, 641 (1956) (citing
State ex rel. Jones v. City of Nashville, 198 Tenn. 280, 279
S.W.2d 267 (1955)). The mere fact that an agency probably will
deny relief is not a sufficient excuse for failure to exhaust
available remedies. Id. Exhaustion of administrative remedies
is not an absolute prerequisite for relief, however, unless a
statute “by its plain words” requires exhaustion. Thomas v.
State Bd. of Equalization, 940 S.W.2d 563, 566 (Tenn. 1997)
(quoting Reeves v. Olsen, 691 S.W.2d 527, 530 (Tenn. 1985)).
Thus, a statute does not require exhaustion when the language
providing for an appeal to an administrative agency is worded
permissively. Id. Absent any statutory mandate, whether to
dismiss a case for failure to exhaust administrative remedies
would be a matter of “sound judicial discretion.” Reeves, 691
S.W.2d at 530 (quoting Cerro Metal Prod. v. Marshall, 620
F.2d 964, 970 (3d Cir.1980)).
-21-
Id. at 838–39.
Tennessee Code Annotated Section 4-5-225(b) indeed requires that the complainant
exhaust all administrative remedies before petitioning the Chancery Court for a declaratory
judgment: “A declaratory judgment shall not be rendered concerning the validity or
applicability of a statute, rule or order unless the complainant has petitioned the agency for
a declaratory order and the agency has refused to issue a declaratory order.” Based on the
foregoing, for the Chancery Court to consider the merits of Appellees’ declaratory judgment
petition, the Appellees’ petition for a declaratory judgment must be ripe and the Appellees
must have exhausted all administrative remedies. The Appellants argue that the January 2009
petition for a declaratory order was premature because, at that time, issuance of the final
permit was merely a “contingent future event that may not occur as anticipated.” Union
Carbide, 473 U.S. at 580–81. The Appellants further argue that, having never presented the
Board with a ripe petition for a declaratory order, the Appellees have failed to exhaust the
requirement to first seek an order from the Board.
In making their argument, however, the Appellants misconstrue the procedural history
of this case, as well as the procedures for gaining declaratory relief as dictated by the UAPA.
It is true that Appellees first filed a petition for a declaratory order from the Board in January
2009, which was prior to issuance of a final permit. In declining to convene a contested case,
the Board stated that it was refusing to grant the requested relief “at this time based on the
stipulated fact that the permit at issue has not been issued [and] to prevent against the Board
rendering impermissible advisory opinions based on hypothetical facts.” While the Board
may have been correct that the issue was not ripe for review at that time,7 the Chancery Court
in this case was faced with an entirely different set of facts. At the time the Appellees filed
their petition for a declaratory judgment, pursuant to Tennessee Code Annotated Section 4-5-
225, in the Davidson County Chancery Court, a final permit had been issued to the Quarry.
This final permit, like the draft permit, did not conclude that Horse Creek had “unavailable
conditions.” Accordingly, Appellant’s contention that the case is not ripe because there had
been no final permit issued is meritless.
Applying the two-part ripeness inquiry to the facts of this case, we conclude that the
issues presented in this case are ripe for review. First, there is no dispute that the issues
presented in this case are appropriate for judicial review. B & B, 318 S.W.3d at 848. Issues
of statutory interpretation have long been the province of the judiciary. See State v. Union
Bank, 17 Tenn. 119, 1836 WL 1120, at *6 (Tenn. 1836) (noting that courts have the power
to interpret ambiguous statutes). We turn next to the question of whether “there is no need
7
We take no position as to whether the January 2009 petition for a declaratory order, alone, was
indeed a ripe controversy.
-22-
for the court to act or where the refusal to act will not prevent the parties from raising the
issue at a more appropriate time.” Id. (quoting AmSouth Erectors, 2003 WL 21878540, at
*6). The Appellees argue that the issues in this case are ripe, citing Colonial Pipeline Co. v.
Morgan, 263 S.W.3d 827 (Tenn. 2008). In Colonial Pipeline, the Supreme Court stated:
“Declaratory judgments” are so named because they proclaim
the rights of the litigants without ordering execution or
performance. 26 C.J.S. Declaratory Judgments § 1 (2001). Their
purpose is to settle important questions of law before the
controversy has reached a more critical stage. 26 C.J.S.
Declaratory Judgments § 3 (2001). The chief function is one of
construction. Hinchman v. City Water Co., 179 Tenn. 545, 167
S.W.2d 986, 992 (1943) (quoting Newsum v. Interstate Realty
Co., 152 Tenn. 302, 278 S.W. 56, 56–57 (1925)). While findings
of fact are permitted in a declaratory judgment action, “the
settlement of disputed facts at issue between the parties will
ordinarily be relegated to the proper jurisdictional forums
otherwise provided.” Id.
Colonial Pipeline, 263 S.W.3d at 837. Further, the Supreme Court stated that “declaratory
judgment actions have gained popularity as a proactive means of preventing injury to the
legal interests and rights of a litigant.” Id. at 836. In addition, the Court cited with approval
the opinion of one commentator, who “observed that the declaratory judgment action
recognizes that ‘[c]ourts should operate as preventive clinics as well as hospitals for the
injured.’” Id. (quoting Henry R. Gibson, Gibson's Suits in Chancery, § 545 (6th ed. 1982)).
Thus, the Appellees argue that the petition for declaratory relief, by its very nature, allows
a determination of rights at the point when “some real interest [is] in dispute.” Colonial
Pipeline, 263 S.W.3d at 837 (citing Goetz, 278 S.W. at 418).
At this time, a final permit has been issued that did not find “unavailable conditions”
in Horse Creek and its unnamed tributary despite the impairments regarding Biological
Integrity and Habitat. Thus, the issuance of a permit without a finding of “unavailable
conditions” is not “hypothetical,” Colonial Pipeline, 263 S.W.3d at 837, or “uncertain or
contingent.” B & B, 318 S.W.3d at 847. A final permit having been issued, there is not a
more “critical stage” at which this issue can be adjudicated.8 Colonial Pipeline, 263 S.W.3d
8We note that the Appellants apparently made an additional ripeness argument in the trial court.
Specifically, the Appellants argued that the case was not ripe because the permit appeal had not been
completed. However, this argument was not presented in the Appellants’ briefs. Accordingly, it is waived.
(continued...)
-23-
at 837 (citing 26 C.J.S. Declaratory Judgments § 3 (2001)). Accordingly, interpretation of
the rules and regulations regarding the state’s Antidegradation policy is appropriate at this
time.
Appellants’ contention that the Appellees have failed to exhaust their administrative
remedies is likewise without merit. As noted in Appellees’ petition for declaratory judgment,
the Appellees’ first sought a declaratory order prior to issuance of a final permit and the
Board dismissed the petition for a lack of ripeness. Thus, Appellants contend that the Board’s
dismissal of the action was not an exercise of discretion pursuant to Tennessee Code
Annotated Section 4-5-223, from which the Appellees were entitled to seek judicial
intervention pursuant to Tennessee Code Annotated Section 4-5-225.
As previously discussed by this Court in Pickard I, M2011-01172-COA-R3-CV, 2012
WL 3329618, (Aug. 14, 2012):
Petitions for declaratory orders before administrative agencies
such as the Board in this case are governed by Tennessee Code
8
(...continued)
See Tenn. R. App. P. 13(b) (“Review will generally only extend to those issues presented for review.”); Bean
v. Bean, 40 S.W.3d 52, 55–56 (Tenn. Ct. App. 2000). Although we note that federal courts have held that
questions of ripeness concern subject matter jurisdiction and, therefore, cannot be waived, Bigelow v. Mich.
Dep't of Natural Res., 970 F.2d 154, 157 (6th Cir.1992), our Supreme Court has stated that when a matter
is not ripe for review, it will “decline” to consider the case; our Supreme Court has not held that a court lacks
subject matter jurisdiction when the case is not ripe for review. See City of Memphis v. Shelby County
Election Com'n, 146 S.W.3d 531, 538 (Tenn. 2004); but see Admiralty Suites and Inns, LLC v. Shelby
County, 138 S.W.3d 233 (Tenn. Ct. App. 2003) (framing the issue of ripeness as one of subject matter
jurisdiction). Even if we were to consider the Appellants’ argument in the trial court that the case is not ripe
because the permit appeal remains pending, we must agree with the trial court that:
Under these circumstances, the argument that the Court should
defer to the administrative process by not proceeding with declaratory
relief, and thereby allow the permit appeal to run its course where the
issues may be straightened out, is not compelling,. The [Appellants’]
position requires all parties to wait until the permitting appeal, with its
contested case hearing, is complete for [Appellants] to be able to present,
on an appeal of the permit appeal, their dispositive issue of law. If the
[Appellants] prevail, the permit proceedings will have been a waste, and
must be remanded and started again to gather new facts and data under the
correct legal standard.
The Court therefore concludes that because the claim is one for
declaratory relief and given the unusual facts of this case, there is a ripe,
justiciable controversy.
-24-
Annotated Section 4-5-223:
(a) Any affected person may petition an agency
for a declaratory order as to the validity or
applicability of a statute, rule or order within the
primary jurisdiction of the agency. The agency
shall:
(1) Convene a contested case hearing pursuant to
this chapter and issue a declaratory order, which
shall be subject to review in the chancery court of
Davidson County, unless otherwise specifically
provided by statute, in the manner provided for
the review of decisions in contested cases; or
(2) Refuse to issue a declaratory order, in which
event the person petitioning the agency for a
declaratory order may apply for a declaratory
judgment as provided in § 4-5-225.
* * *
(c) If an agency has not set a petition for a
declaratory order for a contested case hearing
within sixty (60) days after receipt of the petition,
the agency shall be deemed to have denied the
petition and to have refused to issue a declaratory
order.
Pickard I, 2012 WL 3329618, at *7. The Chancery Court only has jurisdiction to consider
a declaratory judgment petition once the Board has declined to issue an order and convene
a contested case. See Tenn. Code Ann. §4-5-225(b). As explained by our Supreme Court in
Hughley v. State, 208 S.W.3d 388 (Tenn. 2006): “[T]he provisions of section 4-5-225,
setting forth the procedure for seeking a judicial determination of the claims made in a
petition for declaratory order [apply] after the agency refuses under section 4-5-223(a)(2) to
issue the requested order.” Id. at 393. Accordingly, the Board must exercise its discretion to
decline to convene a contested case and refuse to issue a declaratory order before the
Chancery Court can gain jurisdiction to consider the petition for declaratory judgment.
The Appellants argue that the Board did not decline to convene a contested case when
it dismissed the January 2009 petition for lack of ripeness. However, again the Appellants
-25-
misconstrue the history of this case and the relevant procedures regarding declaratory
judgment actions pursuant to the UAPA. Not only did the Appellees file a petition for a
declaratory order in January 2009, which was prior to issuance of the final permit in this case,
but, as noted in their petition for declaratory judgment in the Chancery Court, the Appellees
also filed a petition for a declaratory order with the Board concurrent with their permit
appeal, after TDEC issued a final permit. The Board also dismissed this petition on
procedural grounds. The Appellees subsequently filed an appeal to the Chancery Court of
Davidson County, seeking judicial review of the Board’s decision pursuant to Tennessee
Code Annotated Section 4-5-322(a). See Pickard I, 2012 WL 3329618, at *5. This Court
dismissed the appeal in Pickard I, however, and held that the judicial review statute was not
the appropriate avenue to seek judicial intervention after the Board refuses to issue a
declaratory order. Instead, we held:
Tennessee Code Annotated Section 4-5-223 clearly provides
that the appropriate procedure to follow when the Board refuses
to issue a declaratory order is to seek a declaratory judgment
pursuant to Tennessee Code Annotated Section 4-5-225. This
statute provides:
(a) The legal validity or applicability of a statute,
rule or order of an agency to specified
circumstances may be determined in a suit for a
declaratory judgment in the chancery court of
Davidson County, unless otherwise specifically
provided by statute, if the court finds that the
statute, rule or order, or its threatened application,
interferes with or impairs, or threatens to interfere
with or impair, the legal rights or privileges of the
complainant. The agency shall be made a party to
the suit.
(b) A declaratory judgment shall not be rendered
concerning the validity or applicability of a
statute, rule or order unless the complainant has
petitioned the agency for a declaratory order and
the agency has refused to issue a declaratory
order.
Tenn. Code Ann. § 4-5-225. . . . Consequently, when an agency
refuses to issue a declaratory order, proper procedure dictates
that the complaining party follow the specific procedures of
-26-
Tennessee Code Annotated Sections 4-5-223 and -225 and file
a petition for a declaratory judgment in Chancery Court rather
than the more general Tennessee Code Annotated Section 4-5-
322 procedures regarding a petition for judicial review.
See Pickard I, 2012 WL 3329618, at *8–9. That is exactly what the Appellees have done
in this case. After the denial of both the pre-permit and post-permit declaratory order
petitions, the Appellees properly filed a petition pursuant to Tennessee Code Annotated
Section 4-5-225 in the Davidson County Chancery Court, stating that all administrative
remedies had been exhausted because the Board had twice refused to issue a declaratory
order.
We have previously held that the Board’s refusal to issue a declaratory order in
Pickard I was an exercise of discretion sufficient to trigger the Appellees’ rights to seek a
declaratory judgment in Chancery Court pursuant to Tennessee Code Annotated Section 4-5-
225. As this Court explained:
“[T]he decision of whether to issue a declaratory order is within
an agency's discretion.” Consumer Advocate Div. ex rel.
Tennessee Consumers v. Tennessee, No.
M1999-01170-COA-R12-CV, 2001 WL 575570, *5 (Tenn. Ct.
App. May 30, 2001). . . .
* * *
In the context of the Appellees’ petition for a declaratory order,
Tennessee Code Annotated Section 4-5-223 specifies what
action the Board, in its discretion, may take. Here, the Board had
three options: 1) convene a contested case in order to decide the
merits of the petition for declaratory order; 2) refuse to issue a
declaratory order, in which case the complaining party may file
a petition for a declaratory judgment pursuant to Tennessee
Code Annotated Section 4-5-225; or 3) take no action, in which
case, the petition for declaratory judgment is deemed denied and
the complainant may file a petition for a declaratory judgment
pursuant to Tennessee Code Annotated Section 4-5-225. See
Tenn. Code Ann. §4-5-223; see also Hughley v. State, 208
S.W.3d 388 (Tenn. 2006) (holding that when petitioned for a
declaratory order, the agency “may respond in one of two ways:
(1) convene a contested case hearing and issue a declaratory
-27-
order or (2) refuse to issue a declaratory order” either by a
formal denial or by taking no action). Although the order
denying the Appellees’ petition for a declaratory order is styled
as an order granting a motion to dismiss, of the only three
options available to the Board pursuant to Tennessee Code
Annotated Section 4-5-223, the Board clearly refused to issue
the requested declaratory order. See Gordon v. Greenview Hosp.
Inc., 300 S.W.3d 635, 643 (Tenn. 2009) (citing Tenn. Farmers
Mut. Ins. Co., v. Farmer, 970 S.W.2d 453, 455 (Tenn. 1998)
(noting that with regard to legal filings, the law favors substance
over style)).
Pickard I, 2012 WL 3329618, at *7–8. Thus, the Appellees sought, and were denied, relief
by the Board. Indeed, the Board in Pickard I refused to issue the petition based on its
interpretation of Tennessee Code Annotated Section 69-3-105(i), which the Board held
foreclosed declaratory relief once a final permit had been issued. Accordingly, we must
conclude that the Board has “develop[ed] [its] final position with regard to the matters before
[it].” B & B, 318 S.W.3d at 848. As such, we must conclude that Appellees have exhausted
their administrative remedies in this case.
B. Tennessee Code Annotated Section 69-3-105(i)
The Appellants next argue that declaratory relief is not appropriate in this case
because a petition for a declaratory order regarding a pre-permit decision is only allowed in
certain, inapplicable, situations, as limited by statute.
The Appellants rely on Tennessee Code Annotated Section 69-3-105(i), which states,
in pertinent part:
Upon receiving a petition for permit appeal, the board has the
power, duty, and responsibility to hold a contested case hearing
concerning the commissioner's issuance or denial of a permit.
During this hearing, the board shall review the commissioner's
permit decision and may reverse or modify the decision upon
finding that it does not comply with any provisions of this part.
. . . Notwithstanding the provisions of §§ 4-5-223 or
69-3-118(a), or any other provision of 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
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administrative review of the commissioner's issuance or denial
of a permit.
According to Appellants’ argument, the above statute allows a pre-permit declaratory order
petition in only one situation, which Appellants argue is set out in “the established
procedures of Tennessee's antidegradation statement, found in the rules promulgated by the
department.” As stated by the Board in its brief:
The reference to ‘the established procedures of Tennessee's
antidegradation statement’ speaks to the singular instance in
which administrative review may occur pursuant to §4-5-223.
That instance arises when TDEC determines during the
permitting process that degradation of certain waters, identified
as Exceptional Tennessee Waters, is justified. See Tenn. Comp.
R. & Reg. 1200-04-03-.06(4)(d)(1).9 It is inapplicable in this
case because the proposed receiving waters were not determined
to be Exceptional Tennessee Waters.
Thus, the Appellants argue that Tennessee Code Annotated Section 69-3-105(i) precludes
review of decisions related to the issuance of a draft permit except under the limited
circumstances explained above. However, as we have previously pointed out, the petition for
a declaratory judgment in the Davidson County Chancery Court cites not only the Board’s
refusal to grant the declaratory order sought prior to issuance of the final permit, but also the
Board’s refusal to consider the declaratory order petition filed after issuance of the final
permit. Thus, Appellant’s argument that the Appellees may not seek a declaratory judgment
in the Chancery Court regarding the draft permit due to Tennessee Code Annotated Section
69-3-105(i)’s specific language regarding the established procedures of Tennessee’s
Antidegradation statement fails.
9
Tennessee Compiled Rule and Regulation 1200-04-03-.06(4)(d)(1) states, in pertinent part:
If the Department determines that degradation [of Exceptional Tennessee
Waters] is justified, it will notify the applicant, the federal and state
intergovernmental coordination agencies, and third persons who requested
notification of the determination. Within 30 days after the date of the
notification, any affected intergovernmental coordination agency or
affected third person may petition the Board for a declaratory order under
Tennessee Code Annotated § 4-5-223, and the Board shall convene a
contested case.
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We note that, in Pickard I, the Appellants argued that Appellees were not entitled to
bring a petition for declaratory relief in conjunction with their permit appeal after a final
permit had been issued, pursuant to the above statute’s express statement that
“[n]otwithstanding the provisions of § 4-5-223 . . . , this subsection(i) . . . shall be the
exclusive means for obtaining administrative review of the commissioner's issuance or denial
of a permit.” See Pickard I, 2012 WL 3329618, at *6. However, this argument was not
presented in either the Board’s or TDEC’s brief in this case. While this Court did grant the
Appellant’s motion to consolidate this case for purposes of oral argument only, no request
to consolidate the cases for purposes of a final disposition has been requested or granted.
Therefore, arguments presented solely in the briefs of Pickard I will not be considered in this
case. In addition, it is well-settled that an issue the Appellant does not raise or adequately
argue in its appellate brief is considered waived in this Court.10 Thompson v. Deutsche Bank
Nat. Trust Co., No. W2011–00329–COA–R3–CV, 2012 WL 1980373, *3 (Tenn. Ct. App.
June 4, 2012) (citing Tenn. R. App. P. 27(a)(7); Tenn. Ct. App. R. 6(a), (b); Bean v. Bean,
40 S.W.3d 52, 55–56 (Tenn. Ct. App. 2000)). Accordingly, we decline to consider this
argument. The judgment of the trial court with regard to this issue is, therefore, affirmed.
C. Interpretation of Antidegradation Rule
Finally, TDEC argues that the trial court erred in construing the Antidegradation rule
to require a finding that there were “unavailable conditions” in the permit at issue in this
case. Specifically, TDEC argues that the trial court erred in concluding that the impairments
with regard to Biological Integrity and Habitat require a finding that Horse Creek has
“unavailable conditions” because these criteria are not affected by the allowed discharges in
this case, namely Total Suspended Solids and pH. TDEC argues first that Biological Integrity
and Habitat are not parameters within the meaning of the Antidegradation rule. In addition,
10
The Board does state in its reply brief that the issues raised by the Appellees in this case
fall squarely within the ambit of Tenn. Code Ann. § 69-3-105(i) insofar as
it allows a permit appeal . . . . [I]t is clear that the Board is authorized to
review the permit decision and ‘reverse or modify the decision upon finding
that is does not comply with the provisions of this part’ Tenn. Code Ann.
§ 69-3-105(i) (emphasis supplied). It is axiomatic then that the Board is
authorized under § 69-3-105(i) to determine the correct application of the
rules, and the Antidegradation Statement in particular, in reviewing
[Appellees’] permit appeal.
However, arguments raised for the first time in reply briefs are likewise considered waived by this Court.
Regions Financial Corp. v. Marsh USA, Inc., 310 S.W.3d 382, (Tenn. Ct. App. 2009) (citing Gentry v.
Gentry, No. E2000-02714-COA-R3-CV, 2001 WL 839714, at *4 n.3 (Tenn. Ct. App. 2001) (“[I]t is not the
office of a reply brief to raise issues on appeal.”)).
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TDEC argues that the Antidegradation rule, as well as federal law, allow a “parameter by
parameter” approach to determining “unavailable conditions,” in which the TDEC
determines whether the waters are available or unavailable only for the specific pollutants
proposed to be discharged. Because neither Biological Integrity nor Habitat would be
affected by Total Suspended Solids or pH, TDEC argues that Horse Creek was properly
classified as having “available conditions” for purposes of the proposed, and ultimately
allowed, discharges. Finally, TDEC argues that, because the trial court disregarded TDEC’s
interpretation of the statute in favor of the Appellees’ construction, the trial court failed to
follow the summary judgment procedures requiring the court to give all reasonable inferences
in favor of the non-moving party, in this case TDEC.
This issue involves statutory interpretation. Issues involving statutory interpretation
are questions of law, which we review de novo with no presumption of correctness. Tenn.
R. App. P. 13(d). Generally, questions of law are appropriate at the summary judgment stage.
Metro. Dev. and Hous. Agency v. Trinity Marine, 40 S.W.3d 73, 76 (Tenn. Ct. App. 2000).
However, as this case involves the interpretation of a rule enforced by an administrative
agency, courts are required to afford deference and controlling weight to an agency's
interpretation of its own rules and regulations. Jones v. Bureau of TennCare, 94 S.W.3d
495, 501 (Tenn. Ct. App. 2002) (citing Profill Dev., Inc. v.. Dills, 960 S.W.2d 17, 27 (Tenn.
Ct. App. 1997)). Indeed, in Profill Dev., Inc. v.. Dills, 960 S.W.2d 17, 27 (Tenn. Ct. App.
1997), a similar declaratory judgment case involving land pollution, this Court held that:
[TDEC] has the knowledge, expertise and experience and is
charged with the administration of the technical details of the
statute. Accordingly, [TDEC’s] decisions concerning the
applicability of technical terms of the statute are entitled to
deference in the same manner as other technical decisions.
Wayne County v. Solid Waste Disposal Control Board, 756
S.W.2d 274, 279–280 (Tenn. Ct. App.1988).
Id. at 27. Thus, TDEC’s interpretation of the regulations at issue are entitled to deference in
this Court. There are, however, limits to this deferential standard. One such limitation is that
the rule or regulation to be interpreted by the agency “must be ambiguous.” Liberty Mut. Ins.
Co. v. Tennessee Dept. of Labor and W orkforce Developm ent, No.
M2010-02082-COA-R3CV, 2012 WL 11739, at *7 (Tenn. Ct. App. Jan. 3, 2012) (citing
Christensen v. Harris County, 529 U.S. 576, 588 (2000)); see also Moore v. Hannon Food
Service, Inc., 317 F.3d 489, 495 (5th Cir. 2003). Another limitation is that the agency's
interpretation of its own rule or regulation shall not be “plainly erroneous or inconsistent with
the regulation.” Jones, 94 S.W.3d at 501 (citing Jackson Express, Inc. v. Tennessee Public
Service Comm., 679 S.W.2d 942, 945 (Tenn. 1984)).
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We first consider TDEC’s argument that the trial court erred in finding that both
Biological Integrity and Habitat are parameters for purposes of the Antidegradation rule. We
note, however, that this issue, while argued in TDEC’s brief, was not designated as an issue
on appeal. Generally, an issue argued in the body of the brief, but not designated as an issue
will be considered waived. See Forbess v. Forbess, --- S.W.3d ----, 2011 WL 6153607, at
*7 (Tenn. Ct. App. 2011) (citing Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn.
Ct. App. 2002). Regardless, even if we were to consider this issue as properly raised in this
Court, it is without merit.
Tennessee Compiled Rule and Regulation 1200-04-03-.03 contains the “Criteria for
Water Usage” for the various uses of water found in Tennessee. Horse Creek is classified
under the “Fish and Aquatic Life” use of water. The listed criteria for evaluating the “Fish
and Aquatic Life” use of water include not only Total Suspended Solids and pH, but also
Biological Integrity and Habitat. See Tenn. Comp. R. & Reg. 1200-04-03-.03(3). TDEC does
not dispute that Total Suspended Solids and pH are properly considered parameters. The
Biological Integrity criterion states in pertinent part:
The waters shall not be modified through the addition of
pollutants or through physical alteration to the extent that the
diversity and/or productivity of aquatic biota within the
receiving waters are substantially decreased or adversely
affected, except as allowed under 1200-04-03-.06 [the
Antidegradation rule].
Tenn. Comp. R. & Reg. 1200-04-03-.03(3)(m). Therefore, based on the plain language of
Rule and Regulation 1200-04-03-.03(3)(m), Biological Integrity is a parameter that must be
considered when applying the Antidegradation rule. The Habitat criterion likewise states:
The quality of stream habitat shall provide for the development
of a diverse aquatic community that meets regionally-based
biological integrity goals. Types of habitat loss include, but are
not limited to: channel and substrate alterations, rock and gravel
removal, stream flow changes, accumulation of silt,
precipitation of metals, and removal of riparian vegetation. For
wadeable streams, the instream habitat within each subecoregion
shall be generally similar to that found at reference streams.
However, streams shall not be assessed as impacted by habitat
loss if it has been demonstrated that the biological integrity goal
has been met.
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Tenn. Comp. R. & Reg. 1200-04-03-.03(3)(n). Habitat is listed with Total Suspended Solids
and pH, which are undisputedly parameters, as well as Biological Integrity, which is clearly
a parameter by its plain language. In addition, the Antidegradation rule itself states, in the
“unavailable conditions” provision, that “[w]here impairment by habitat alteration exists,
additional significant loss of habitat within the same area of influence shall not be authorized
unless avoidance, minimization, or in-system mitigation can render the impact de minimis.”
Tenn. Comp. R. & Reg. 1200-04-03-.06(2). Therefore we must conclude that the plain
language of Tennessee Compiled Rules and Regulations 1200-04-03-.03(3) and (6) provide
that Habitat is likewise a parameter that must be considered in applying the Antidegradation
rule. As previously stated, when a statute is unambiguous, the Court may apply its plain
meaning without regard for the agency’s interpretation. See Liberty Mut. Ins., 2012 WL
11739, at *7. Therefore, we conclude that both Biological Integrity and Habitat are
parameters for purposes of the Antidegradation rule.
We next consider TDEC’s argument that the trial court erred in concluding that a
finding of impairment in one parameter requires a finding of “unavailable conditions” as to
the entire body of water. Instead, TDEC argues that its policy of finding “unavailable
conditions” only as to the types of pollutants proposed to be discharged is the appropriate
method of applying the Antidegradation rule.
TDEC presented evidence in the trial court that it follows a “parameter by parameter”
approach. According to the deposition of Mr. Denton, in considering a discharge permit,
TDEC considers whether “available conditions” or “unavailable conditions” exist only with
regard to the proposed discharges, in this case Total Suspended Solids and pH. If conditions
are available for those discharges, the body of water is considered to have “available
conditions” for purposes of the proposed permit. In his deposition, Mr. Denton explained
TDEC’s approach:
A. So they say, what are they discharging. They look [at] that
list.
Q. Solids. In this case, suspended solids?
A. Suspended solids.
Q. Okay.
A. So they look, and they say, is the stream available or
unavailable for what they want to discharge. See, they look at it
from that direction, not the other direction. They look at the
list—the applicant has told them what they want permission to
discharge.
Q. Okay. If—if they make this determination that it’s somehow
available for sediment, is it irrelevant whether adding additional
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solids into the stream is going to contribute to the impairment
with respect to biological integrity?
A. If they make a determination that it’s available conditions,
then—paragraph Number 2 [regarding “unavailable conditions”]
no longer applies. It’s paragraph Number 3 that applies
[regarding “available conditions”].
* * *
A. I agree that the stream is unavailable. I disagree that it[] . . .
logically follows, that it’s unavailable for silt. That’s a different
determination.
* * *
Q. So in a case like this, what has happened is the permit writer
would have gotten . . . the assessment showing there were
unavailable conditions . . . with respect to biological integrity
and habitat alteration, correct?
A. Correct.
Q. And then, your view is that—the analysis is that the permit
writer makes a determination of whether there are available
conditions for the . . . substance that the applicant actually wants
to discharge, correct?
A. Correct
In support of its construction of the Antidegradation rule, TDEC cites Kentucky Waterway
Alliance v. Johnson, 540 F.3d 466 (6th Cir. 2008), which states that, under federal law:
These “approaches for identifying high quality waters fall into
two basic categories: (1) pollutant-by-pollutant approaches, and
(2) water body-by-water body approaches.” [40 C.F.R. §
131.12(a)(2)]. Under the pollutant-by-pollutant approach (which
is the same as [TDEC’s] parameter-by-parameter approach),
“the State makes a classification for each pollutant in a given
water body.” Ohio Valley Environmental Coalition v. Horinko,
279 F. Supp. 2d 732, 747 (S.D. W. Va. 2003). The water body is
then given Tier II protection [referred to as “available
conditions” in Tennessee] against those pollutants for which
“water quality is better than applicable criteria.” Water Quality
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Standards Regulation, 63 Fed. Reg. at 36,782. “[A]vailable
assimilative capacity for any given pollutant is always subject to
[Tier II] [or “available conditions”] protection, regardless of
whether the criteria for other pollutants are satisfied.” Id. Thus,
under this approach, the same water body could be classified as
Tier II [or “available conditions”] for certain pollutants and Tier
I [or “unavailable conditions”] for other pollutants. See Ohio
Valley, 279 F. Supp.2d at 747.
Id. at 476. Thus, TDEC argues its interpretation of the Antidegradation rule is reasonable and
that the trial court erred in disregarding its evidence and granting summary judgment to the
Appellees.
In contrast, Appellees argue that summary judgment was appropriate because the
language of the Antidegradation rule supports the interpretation that a finding of impairment
of any one parameter requires a finding that the body of water as a whole is “unavailable,”
which would trigger greater protections from pollution. The language of the Antidegradation
rule states:
(1) It is the purpose of Tennessee's standards to fully protect
existing uses of all surface waters as established under the Act.
Existing uses are those actually attained in the waterbody on or
after November 28, 1975. Additionally, the Tennessee Water
Quality Standards shall not be construed as permitting the
degradation (see definition) of high quality surface waters.
Where the quality of Tennessee waters is better than the level
necessary to support propagation of fish, shellfish, and wildlife,
and recreation in and on the water, that quality will be
maintained and protected unless the state finds, after
intergovernmental coordination and public participation, that
lowering water quality is necessary to accommodate important
economic or social development in the area in which the waters
are located. Sources exempted from permit requirements under
the Water Quality Control Act should utilize all cost-effective
and reasonable best management practices. . . .
* * *
(2) Unavailable conditions exist where water quality is at, or
fails to meet, the criterion for one or more parameters. In
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unavailable conditions, new or increased discharges of a
substance that would cause or contribute to a condition of
impairment will not be allowed. Where impairment by habitat
alteration exists, additional significant loss of habitat within the
same area of influence shall not be authorized unless avoidance,
minimization, or in-system mitigation can render the impact de
minimis.
(3) Available conditions exist where water quality is better than
the applicable criterion for a specific parameter. In available
conditions, new or additional degradation for that parameter will
only be allowed if the applicant has demonstrated to the
department that reasonable alternatives to degradation are not
feasible.
Tenn. Comp. R. & Reg. 1200-04-03-.06.
The trial court apparently credited the Appellees’ interpretation, stating:
The rule’s statement of what constitutes “unavailable
conditions” is clear. Such conditions exist “where water quality
is at, or fails to meet, the criterion for one or more parameters.”
Rule 1200-4-3-.06(2). The rule does not say “where water
quality is at, or fails to meet, the criterion for the parameters of
the substance to be discharged.” Thus the scope of the rule is not
whether “unavailable conditions” exist as to the substances to be
discharged. The scope of the rule is broader. From the text of the
rule, “unavailable conditions” exist where water quality fails to
meet the criterion for “one or more parameters.” Accordingly,
it is the Court’s conclusion that because in this case any one or
more of the parameters listed under “Fish and Aquatic Life” are
impaired in the waters in issue, even though those parameters
are not the TSS or pH listed by the permit applicant for
discharge, the “unavailable conditions” category applies.
One other piece of the analysis is whether a water could
come under both the “unavailable conditions” category and the
“available conditions” category depending on the substance
being discharged. “No” is the court’s conclusion.
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* * *
The Court’s construction is based upon two reasons. First, rule
1200-4-03-.02 requires the most stringent criteria be used.
Secondly, TDEC has not provided the Court with an explanation
nor has the Court been able to craft one that would demonstrate
how a water fits within the “unavailable conditions” category
could also be assessed based upon the “available conditions”
category. A finding of “unavailable conditions” preempts
application of the “available conditions” category.
Therefore based on the Court’s construction of TDEC’s
rules and application of the undisputed facts, the Court
concludes that TDEC was required to assess the permit
application in issue under the “unavailable conditions” category
of the Antidegradation Statement.
From our review of the transcript of the summary judgment hearing and the trial court’s
findings of fact and conclusions of law, however, we find no evidence that the trial court
gave any deference to TDEC’s interpretation of the Antidegradation rule. See Profill, 960
S.W.2d at 27. Instead, the trial court concluded that Appellees’ approach was the correct
interpretation of the Antidegradation rule given the purpose of the Water Quality Control Act
to limit pollution and the plain language of the statute. As we perceive it, the trial court found
the language of the Antidegradation statement to be unambiguous as it requires a finding of
“unavailable conditions” when “one or more parameters” are impaired We respectfully
disagree. While the above language suggests that a condition of impairment as to any one
parameter requires a finding of “unavailable conditions,” the rule goes on to state that “new
or increased discharges of a substance that would cause or contribute to a condition of
impairment will not be allowed.” Thus, the rule contemplates that only those substances that
affect “a condition of impairment” will be prohibited, which reading supports TDEC’s
parameter by parameter approach. Because of the conflicting language, we conclude that the
Antidegradation rule is ambiguous. As previously discussed, when a rule is ambiguous, the
agency’s interpretation “is entitled to great weight.” Consumer Advocate Div. v. Greer, 967
S.W.2d 759, 761 (Tenn. 1998). In addition, at the summary judgment stage, we review the
evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in the nonmoving party's favor. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn.
2003). We have previously held that:
Summary judgment “should not replace a trial when disputed
factual issues exist, because its purpose is not to weigh the
evidence, to resolve factual disputes, or to draw inferences from
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the facts.” Downs v. Bush, 263 S.W.3d 812, 815 (Tenn. 2008)
(emphasis added). Courts should grant summary judgment "only
when both the facts and the conclusions to be drawn from the
facts permit a reasonable person to reach only one conclusion."
Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).
Brooks Cotton Co., Inc. v. Williams, 77 U.C.C. Rep. Serv. 2d (West) 493, 2012 WL 1392370, at *14
(Tenn. Ct. App. April 23, 2012). In this case, the conclusions to be drawn from the language
of the Antidegradation rule and the evidence submitted in support of either party’s
interpretation permits a reasonable person to draw more than one conclusion. Because this
issue requires the Court to consider the weight of the evidence submitted by both parties in
support of their interpretations, we hold that summary judgment was inappropriate.
Accordingly, summary judgment is reversed and this cause is remanded for further
proceedings. Because the issue on remand is one of weight, the trial court should conduct a
trial on the merits to determine the proper interpretation of the Antidegradation rule.
VII. Conclusion
The judgment of the Chancery Court of Davidson County is affirmed in part, reversed
in part, and remanded for further proceedings consistent with this opinion. Costs are taxed
one-third to Appellant, the Tennessee Water Quality Control Board, one-third to Appellant
the Tennessee Department of Environment and Conservation, and one-third to Appellees,
Ron and Linda Pickard, as the Trustees of the Sharon Charitable Trust, and as individuals,
for all of which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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