TDEC states anyone seeking to make an alteration to a water of the state needs authorization under ARAP prior to starting that alteration (TDEC, Who Needs An ARAP). But within that statement, there are multiple factors that play into whether or not you need an aquatic resource alteration permit (ARAP) for your project.
Assessing Permit Need
ARAP creates a framework for Tennessee to implement the TN Water Quality Control Act of 1971. That framework provides a systematic approach for deciding what types of activities require a permit or not. Any alteration to waters of the state needs authorization from TDEC, but some alterations are pre-authorized based on resource type, activity type, or impact.
When TDEC assesses whether your activity needs a permit or not, they check for jurisdiction and they check if your project qualifies for any of the pre-authorizations. We’ll walk through that decision process to help you identify where you fit and what steps to take.
The assessment of need for ARAP can be summarized into three questions:
- Is it WOTS?
- Is it excluded from permitting?
- Does the impact exceed No Notification coverage?
Is it WOTS?
This is the very first question you have to answer in ARAP. Only jurisdictional, regulated waters require an ARAP. In Tennessee, these jurisdictional waters are called “waters of the state” (WOTS for short), and are regulated as a resource in public trust for Tennesseans. If a water resource is not WOTS, you don’t need an ARAP to alter it. To identify if a water resource is WOTS, you’ll need to have a jurisdictional determination conducted. For more information about jurisdictional determinations, check out the following resources:
- What are “Waters of the State”? – TN Environmental
- What is a “Hydrologic Determination?” – TN Environmental
- The Applicant’s Guide to Aquatic Resource Inventory
Is it Excluded from Permitting?
Tennessee law and rule exempt several types of waters of the state and some types of activities from permitting requirements.
Exemptions Based on Activity
Often, these exemptions are made because the activities are so critical to Tennessee that any related loss of resource value is considered a worthwhile trade-off for the trustees of the waters of the state. For example, alterations conducted as a necessary part of on-going agriculture and forestry activities on lands dedicated to production of agricultural or silvicultural products are exempted as long as there is no point-source discharge (TDEC, Aquatic Resource Alteration, 0400-40-07-.02).
Exemptions Based on Resource Characteristics
Other exemptions are made because the characteristics of the resource itself make it less likely for impacts to cause pollution or loss of resource value.
Wet Weather Conveyances (WWCs)
This is the case with alterations to wet weather conveyances, which are WOTS but are exempted from permitting by law. (Conditions apply! See TCA 69-3-108(q) for more information.) Because wet weather conveyances only flow in direct response to precipitation, their resource value is limited primarily to the transport of water and sediment. The potential for loss of resource value is therefore limited to loss of hydrology for more permanent WOTS like wetlands or for discharge of pollutants into WOTS. The law prescribes conditions for alterations to wet weather conveyances prohibiting either loss of value.
Isolated Wetlands
Another exemption is made for isolated wetlands of low-quality up to 1 acre in size, moderate quality up to a quarter acre, or artificial isolated wetlands of any size, also with applicable conditions (TCA 69-3-106). This exemption is similar to the one for wet weather conveyances, but it is much newer and based more on opinion than on scientifically-demonstrated value. Legislators decided to exempt certain categories of wetlands based on characteristics of the resources which they perceived to indicate lower value to the trustees of WOTS. Much like the exemption for wet weather conveyances, conditions apply which prohibit discharges and prohibit pollution to other WOTS.
Word of Caution
It can be easy to misinterpret application of state law to a real property, so it is important to get confirmation from an experienced professional before completing an alteration under either of these provisions. Often, exempted resources form in connection to non-exempted resources, and correctly defining the boundaries of each is necessary to avoid violating state law. If you think you are proposing to alter an exempted resource, it’s best to get confirmation from TDEC before starting any work. This will help you avoid violation of law and rule and resulting enforcement procedures.
Does the Impact Exceed No Notification Coverage?
While some activities are pre-authorized by exemption from permitting in law or rule, others are pre-authorized by the ARAP General Permits. Within most of the General Permits, there are sections describing activities covered but with No Notification Required. This means, these activities can be conducted without submission of an application and official issuance of a permit or a Notice of Coverage. Conditions apply, both those listed specifically to the No Notification activities and those listed in the rest of the general permit.
Activities Fit in No Notification
If your project falls within the sizing and impact limitations described in the No Notification provision, then you are pre-authorized to conduct that activity following the guidelines of the General Permit. As with the other exemptions, it is very important to be clear about the limitations on this coverage and to make sure you do not work outside of it. Any work beyond the provisions will be a violation of law and rule, subject to enforcement procedures. If you have any doubt, it’s a good idea to consult TDEC or an experienced consultant before starting work.
Activities Do Not Fit
If your proposed activities exceed the limitations in the No Notification section, then you need to get a general or individual permit.
Get Help with Your Property
- Local TDEC Environmental Field Office
TDEC has numerous offices across the state to help Tennesseans navigate the regulatory programs. You can find your closest field office and phone numbers for the main office reception line at this link. TDEC Field Offices
- Environmental Consultant
If you need help identifying where your property and project fit, you can hire an environmental consultant. You can find consultants online using the related program and assessment keywords. It’s usually not necessary to hire the most expensive consultant, but it can be worthwhile to avoid hiring the least expensive.
- TN Environmental
Whether you’re planning to hire a consultant or handle your permitting yourself, TN Environmental is here to help you navigate the process with clarity and confidence.
Check out our ARAP resources page here, and don’t forget to join our email list. We’ll send updates straight to your inbox, so you’ll always know when we’re launching a new helpful post or resource. Right now, subscribers get a free 17-page guide to Step #1 for ARAP. If you’re ready to get started, you can get your copy here.
Need one-on-one help with your property? TN Environmental offers some consulting and consultation services. Check out how we can help you get your permit! Work With Me
Helpful Links
- TDEC Guidance
- TN Water Quality Control Act
- TN Environmental ARAP Program Page
- Free Guide to Jurisdictional Determinations
- Work with Us
References
- Tennessee Department of Environment & Conservation (TDEC). “Aquatic Resource Alteration”. Rule 0400-40-07. 0400-40-07.20190911.pdf
- Tennessee Department of Environment & Conservation (TDEC). “Who Needs An ARAP / 401 Certification?” Water Permits, Aquatic Resource Alteration Permit (ARAP). https://www.tn.gov/environment/permit-permits/water-permits1/aquatic-resource-alteration-permit–arap-.html