Big Brother

Loudon County citizens and government just got a reminder that "Big Brother, the state government, is watching us.

You may or not know it but according to the State Of Tennessee, they own just about all the waters in the state. That's right, lakes, rivers, creeks, springs and so on.

The Tennessee Water Quality Control Act, defines waters of the state as following:
“Waters” means any and all water, public or private, on or beneath the surface of the ground, that are contained within, flow through, or border upon Tennessee or any portion thereof

So why does this matter? How bout $10,000.00 per day. That's the the fine the state is threatening the county with if county commission doesn't bow to the demands of state officials.

Those demands are that Loudon County commissioners pass a stream buffer ordinance that would prohibit a property owner from using or disturbing any land within sixty feet of any of the afore mentioned state owned waterways. For instance, that would be sixty feet on both sides of a stream, creek or any other body of water the state claims' they own. This simply amounts to the state taking private property. Not only do they lay claim to the water, now they want to control another 120 feet of private property along the water.

At Monday's commission meeting, a majority of commissioners voted not to adopt the stream buffer regulations citing the infringement on private property owners. So right on queue, Tuesday elements of that outstanding media outlet, The News Herald, contacted the Tennessee Department of Environment and Conservation, TDEC, to be sure they knew the county had not passed the mandated regulation.

Now state officials are threatening sanctions against the county and has given commissioners till January to pass the regulation. Commissioner Harold Duff asked a good question. "If the state has already passed the regulation and commission has no option but to vote for the regulation, then why should commission even have to vote on it at all?"

Fortunately for now, the stream buffer regulation only applies to new development and only effects a relatively small area north of Lenoir City. But does anybody really believe the state will stop there?

Now that the state legislature is becoming more conservative, it may be time for state law makers to rein in out of control state bureaucracies like the Department of Environment and Conservation.

County Commission defies state mandate

Greg Wilkerson News Herald

Members of the Loudon County Commission decided not to comply with a state-mandated program regarding the proposed water quality buffer and now face the possibility of fines.

County Planning Director Russ Newman presented the final draft of the local resolution to members of the commission Monday night. 

Commissioners Austin Shaver, Brian Jenkins, Harold Duff, Earlena Maples and Roy Bledsoe voted against adopting the requirements.

Commissioner Don Miller "very reluctantly" made the motion to approve the water quality buffer resolution, to avoid being fined as much as $10,000 from the state. Votes in favor were also cast by Bob Franke, Steve Harrelson and Sharon Yarbrough, each expressing they did not agree with the state-mandated program, but felt obligated to pass it to avoid being fined.

The buffer is required as part of the county's National Pollutant Discharge Elimination System permit, which requires communities operating a small municipal separate storm sewer system (MS4) to regulate the discharge of pollutants.

It affects an area north of Martel Road and south of Highway 70 outside of the Lenoir City city limits, which is the only portion of the county with the population density to require the water quality buffer.  Areas inside Lenoir City are the city's responsibility. 

The buffer only affects land being developed and exempts land used for agricultural purposes.

The proposed resolution uses the minimum requirements set by the state. They include a buffer with a minimum width of 30 feet measured horizontally from the top of the bank for drainage areas less than one square mile and 60 feet for those with drainage areas greater than one square-mile.

The county has been out of compliance with the stream buffer requirements for years, but has been given time by the state to implement a local resolution, Newman said.

Three years ago the state made the buffer a requirement for local governments. In 2009, during the state's routine monitoring,  officials with the Tennessee Department of Environment and Conservation made the county aware they needed to adopt a water quality buffer resolution.

"At that point that was one of the issues they identified in their monitoring," Newman said.

The state did not fine the county at that point, but gave them some time to draft and pass a local resolution. "They've had a couple of different opportunities to adopt a regulation," Newman said.

The amount of the fine may vary if assessed, but neighboring Blount County was previously fined $10,000 for failing to comply with the requirements.

Miller said paying a fine for failing to comply with a state mandate is not a good use of taxpayer money.

The program started on the federal level, and was passed down to the state and eventually to local governments. Shaver said he was voting against the resolution because at some point local governments have to push back when asked to implement programs they do not agree with.

It was the first of two times Monday Shaver took a stand against the federal government. He cast the lone vote in opposition to accepting a $250,000 federal stimulus grant, which would be used to build a new track at Loudon High School.

"I'm voting against this solely in opposition to the federal stimulus package and I want to make that clear," he said.

The water quality buffer resolution states the buffer should be a mature strip of undisturbed native vegetation and grasses. Commissioners expressed they believe the requirements amount to the government taking away a portion of landowners' properties without compensation. The draft includes a density compensation aspect, which would give developers an opportunity to divide their projects into the same number of lots as though no land had been designated to the buffer.

"Loudon County is currently in noncompliance with their MS4 permit and the corrective action plan that they submitted earlier this year on the buffer requirement," said Tisha Calabrese-Benton, a spokesperson for TDEC.  "We'll be looking again after their next meeting in January and evaluating their compliance then."

That gives the County Commission one more month to change their minds. 

The county's corrective action plan is a response provided by then-County Mayor Doyle Arp to TDEC addressing violations brought to the county's attention by the state agency in April, 2010.

In the response, Arp requests the timeframe for completing amendments to the stormwater resolution be extended to within 90 days of the issuance of the county's new MS4 permit. Newman said the state has not issued the permit yet, and expects them to in January.

"We are not out of compliance with what we told them we would do," he said.

Calabrese-Benton said she cannot speculate specifically on what might occur if the county remains out of compliance in January.

"At that point the division of water pollution control would have to decide what the best action is to help compel compliance with the permit," she said. 

Generally speaking she said TDEC can issue a notice of violation enforcement which could carry civil penalties. "I can't speculate on what we would use in this case," she said.