Praised By Builders, New Tennessee Law On Storm Water Has Some Environmentalists Worried

May 17, 2016

A little creek winds through the Crieve Hall section of Nashville, the water just barely trickling through thick strands of green algae.

"I wouldn't want my kid to get in that creek now," environmentalist John McFadden says. "Do you want your kid playing in that?"

McFadden, the chief executive of the Tennessee Environmental Council says this stream, a feeder into Mill Creek, shows all the signs of nutrient overload. Most likely fertilizers from nearby lawns.

When heavy storms hit — as they always do this time of year — those nutrients surge into the creeks that lattice Middle Tennessee. And a new state law will just make the problem worse, he says.

"This piece of legislation is the most damaging piece of environmental legislation I've seen in my 25 or 30 years in the environmental business," he says.

Some Tennessee environmentalists are squaring off with builders over a new Tennessee law that makes it harder for state and local water managers to require storm water management measures beyond minimum standards set by the Environmental Protection Agency. They say storm water is already poisoning the state's streams, and the new law will make it harder for regulators to get a handle on the problem.

It's not just environmentalists like McFadden who are concerned. Gov. Bill Haslam has signaled his displeasure with the new law, as well. He worries it'll make it harder to enforce controls on storm water.

Haslam let the law go into effect without his signature. But he says a balance has to be struck between encouraging development and protecting the environment. He also says the law is ambiguous and could lead to expensive litigation.

"As governor, I am a strong proponent of economic growth and development, but I am equally committed to ensuring that we protect Tennessee's air, land and water resources for today and future generations of Tennesseans," Haslam told lawmakers.

The measure was pushed through the state legislature by the Tennessee Home Builders Association. They say it prevents regulators from going too far.

"You could tell everybody to build a moat around their homes, and that way no storm water would leave," says Bill Penny, an attorney who lobbies for the new law on behalf of homebuilders. "But that's not practicable."

Supporters of the law say it was needed to keep the Haslam administration from imposing one-size-fits-all requirements for storm water management.

The dispute goes back four years to a proposed change to storm water permits. State regulators suggested requiring homebuilders to retain or absorb up to one inch of rainfall — about as much as would fall in a heavy spring shower.

Such a requirement would have reduced the amount of sediment running into Tennessee waterways, and it would have cut the chances of flooding, environmentalists say.

But it could have raised the cost of new homes by as much as $6,000, say homebuilders. That would have pushed business into neighboring states — and especially in border cities like Clarksville, Chattanooga and Memphis.

Susan Ritter, the head of the Tennessee Home Builders Association, says blanket rules don't make sense in a state with as many different geologic conditions as Tennessee — from hard clay around Memphis to granite and marble in East Tennessee.

"Homebuilders live (and) work in the state of Tennessee," she says. "Of course we want clean water. But you get to a point where you have overreach and you're overcorrecting."

State regulators have said they were willing to work with homebuilders on requirements that were more flexible. But homebuilders nonetheless pursued legislation that essentially blocks the state from imposing its own storm water rules. 

The new law does leave some room for local authorities to set runoff requirements. But the local city council or county commission has to sign off if they go beyond minimum federal standards.

Local storm water managers are divided on the new law. Metro Water Services in Nashville thinks it can work with it. Authorities in Chattanooga are more alarmed.

McFadden, the environmentalist, says builders should want to control storm water. Right next to that creek in Crieve Hall, he points out that a homeowner has built a long, stone wall to keep the bank from eroding.

Proof, says McFadden, that someone ultimately has to pay to handle the runoff caused by development.