Supreme Court Clarifies Procedures for Challenging a Water Pollution Permit

December 17, 2013

The Supreme Court has held that a group opposed to a state-issued water pollution permit acted prematurely when they took their case to court, and should first complete appeals to the Tennessee Board of Water Quality, Oil, and Gas.

In 2008, the Tennessee Department of Environment and Conservation announced its plan to grant a water pollution discharge permit to a quarry near Horse Creek in Hardin County. The trustees of a nearby wildlife sanctuary objected to the permit.

During the permit’s public comments period, the trustees claimed the permit was invalid because the Department had misinterpreted a key state regulation. Nevertheless, in 2009, the Department issued the permit.

The trustees appealed the permit to the Board of Water Quality, Oil, and Gas and also sought a ruling from the Davidson County Chancery Court that the Department had misinterpreted the regulation.

The administrative board put the appeal on hold while the trustees litigated in court. The Chancery Court agreed with the trustees that the Department was misinterpreting the regulation. The Department appealed, and the Court of Appeals sent the case back to the Chancery Court to reconsider its ruling. The trustees and the Department asked the Supreme Court to review the case.

In a unanimous opinion, the Supreme Court held that the Chancery Court should not have heard the trustees’ case. The Court considered the 2005 law that enables third parties like the trustees to directly appeal a water permit. The Court determined that this law requires third parties to finish their appeal with the administrative board before they can take their case to court. Because the administrative board has not yet heard the trustees’ appeal, the law did not allow them to preemptively seek a court order on an issue connected to the permit.

Read the Court’s opinion in E. Ron Pickard et al. v. Tennessee Water Quality Control Board et al., authored by Justice William C. Koch Jr.