On Thursday morning I received an email from a concerned citizen from Kingsport, Tennessee, informing me of an article the Kingsport Times News had ran that day. Its headline, Hawkins County intends to fill in a swampy section of Laurel Run Park near the entrance gate at the far west end of the park (written by Jeff Bobo), got my attention and I wanted to know what exactly was going down in Hawkins County. I immediately called the news room and asked if someone could email me the article so that I could better assess the situation. Within an hour I received the message with the attached article.
In the article, Alderman Joe McLain, a member of the Hawkins County Commission who serves on the Parks Committee, explained to the Board of Mayor and Alderman Monday that the county intends to fill in a swampy section of Laurel Run Park near the entrance gate at the far west end of the park. Laurel Run Park is located along the south bank of the Holston River just outside the Church Hill city limits. “It gets worse every year, and if it gets too bad they will eventually declare it a (protected) wetland and you can’t ever do anything with it,” McLain said. “Right now the state has said we can fill it in with dirt. We have to leave the drains in it, but we can fill it in with dirt and reclaim that property basically because right now you can’t even mow it.” After reading the entire piece I felt that I needed to make a call to the Tennessee Department of Environment and Conservation (TDEC). While waiting on a call back I did a little research. Here’s Tennessee’s definition and delineation of wetlands.
Wetlands definitions and delineation
The Tennessee Water Quality Control Act of 1977 defines “waters of the state” as: any and all water, public or private, on or beneath the surface of the ground, which are contained within, flow through, or border upon Tennessee or any portion thereof except those bodies of water confined to and retained within the limits of private property in single ownership which do not combine or effect a junction with natural surface or underground waters. Wetlands are defined in the TDEC rules as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.”Tennessee relies on the delineation criteria in the Corps’ 1987 Wetland Delineation Manual.
Wetland related statutes and regulations
The Tennessee Water Quality Control Act of 1977 and the corresponding Aquatic Resources Alteration Rule establish the state’s Aquatic Resources Alteration Permit (ARAP) program that regulates wetlands and wetland activities apart from those covered by individual §404 permits. Physical alterations to waters of the state that require either an ARAP or a §401 water quality certification include: dredging, excavation, channel widening, or straightening; bank sloping; stabilization; channel relocation; water diversions or withdrawals; dams, weirs, dykes, levees or other similar structures; flooding, excavating, draining and/or filling a wetland; road and utility crossings; and structural fill.
§401 certification program
Tennessee uses §401 certification to protect wetlands by approving, conditioning, or denying federal §404 permits. In 2000, rules for implementation of the state’s §401 certification and the ARAP programs were formally adopted. The rules specifically define wetlands as a category of waters of the state and establish a “no net loss of water resource value” standard for permitting. Section 401 certification is required for any §404 permit approved by the Corps. However, if the Corps issues a Nationwide Permit (NWP) for a project, or doesn’t have jurisdiction over the impacted wetland, then the applicant must obtain a state ARAP permit. TDEC issues approximately 400 to 500 wetland permits per year, split about equally between ARAPs and §401 certification. These qualitative factors are described in TDEC’s Aquatic Resource Alteration Rules in relation to assessing water resource values and in the Tennessee Antidegradation Standard.
TDEC’s wetland assessment methodology is still evolving. The division is incorporating Tennessee’s antidegredation rules and tier evaluations into the permit assessment process. TDEC reviews all applications to assess the proposed impacts and determine if a tier assessment must be conducted. The antidegradation guidelines, which apply to all waters of the state, are more stringent for impacts to Tier 2 and 3 wetlands than those for Tier 1 wetlands. A field review is conducted for projects impacting all three tiers of wetlands; these are coordinated with TWRA, the Corps, the U.S. Fish and Wildlife Service (FWS), and occasionally the U.S Environmental Protection Agency (EPA). The department also has an EPA grant to develop a new assessment methodology for permitting purposes. TWRA reviews public notices for §401 certification and ARAP permits to ensure that the proposed impacts and mitigation comply with the Basic Minimum Compensatory Mitigation Requirements developed by TDEC, TWRA, EPA, Corps, and FWS. TWRA also ensures that permits follow the mitigation ratios laid out in the TDEC mitigation rules.
Around 5:30 pm, the call came in from the TDEC field officer. I explained the situation and reviewed the article, and then emailed the entire article to the office so she could read it in its entirety. While on the call, she looked up Laurel Run Park in the TDEC database and found a 2009 permit issued for work on the east side of the Park, it was to help with water removal during flooding. It didn’t include any alteration to the documented wetlands. She also stated that they had not applied for any new permits for the wetland fill project that was mentioned in the article. Before we ended the call, I let the officer know that I would be visiting the Park the next morning to investigate and photograph the possible dredging of part of the protected wetlands.
Friday morning, I arrived at Laurel Run Park around 9am and found that someone had replaced the tile for the road that crossed the wetland and they had, in fact, started to dredge the west end of the wetland. I photographed the work that had been done, made a few notes, and decided that I had enough to make a report to the field officer. But before I could leave, the field officer pulled onto the road where I was parked. It was a great meeting, I was able to review the TDEC data and maps showing exactly where the documented wetlands are located, and we were able to confirm that the dredging was exactly where we suspected, right down the middle of the protected wetlands, on the west side of the property. At that moment, she confirmed that there were violations and that she was going to talk with the Park manager. I took a few more photos and made my way back to my office in Johnson City.
Late Friday evening, I received a followup email from the field officer detailing her meeting with the Park officials and how the violation would be handled. She explained that the individual who had dredged the wetland and replaced the tile now understands that no one can place any fill material in the protected wetlands and how he would be restoring the wetlands with the material that had been removed while dredging.
I’m very happy to announce that currently, all is well and the Laurel Run Park wetlands are safe. We will be monitoring the situation by continued visits and also checking with TDEC to make certain that no new permits have been applied for. I am certain that this is not the end of the threat and at some point the county will apply for the ARAP permits. At that point we will do whatever it takes to insure that any permits to fill the wetlands be denied. So stay tuned!