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Court finds that TVA Vegetation Management does not violate NEPA

Posted in Uncategorized

The federal district court in east Tennessee has found that TVA’s 2012 vegetation maintenance project for transmission line rights-of-way did not violate the National Environmental Policy Act (NEPA). NEPA requires federal agencies to take a “hard look” at the environmental consequences of projects before taking action. NEPA’s mandate typically requires federal agencies to prepare an environmental impact statement (EIS) or to make a finding of no significant impact (FONSI). However, if the project falls within a categorical exclusion, an agency need not implement this full NEPA analysis.

TVA determined that the 2012 vegetation maintenance program fell within the TVA’s categorical exclusion for “[r]outine operation, maintenance, and minor upgrading of existing TVA facilities.” The court found that this determination was not arbitrary and capricious and that TVA had complied with NEPA by sufficiently analyzing the project.

The court also found that NEPA review was not required for TVA’s 2012 internal guidance that defined “low growing trees” as those that will not exceed 15 feet at mature height. “Low growing trees” are a category of vegetation that was previously undefined and that TVA will not cut when in the right of way buffer zone. The court referred to this guidance as the “fifteen-foot rule” and stated that this is not a “new policy” but rather a stricter implementation of the existing vegetation management policy.

The fifteen-foot rule was not a part of the administrative record for TVA’s NEPA analysis of the 2012 vegetation maintenance project. The court found that the issue of whether NEPA analysis was required for the fifteen-foot rule was moot, because “TVA did not institute a new fifteen-foot policy.” However, a “major federal action” subject to NEPA is not limited to “new polic[ies]” but includes “new or revised agency rules, regulations, plans, policies, or procedures.” See 40 C.F.R. § 1508.18.

The case is Sherwood et al. v. Tennessee Valley Authority, U.S. District Court for the Eastern District of Tennessee Case No.: 3:12-CV-156. Please see “TVA Beats Challenge to Power Line Tree Maintenance,” by Andrew Scurria for further analysis.

More TDEC Information Online

Posted in TDEC General

In coordination with the move of TDEC’s Central Office to the Tennessee Tower, which is currently scheduled to occur mid-July through mid-August of this year, TDEC has been putting more information online. These include the following:

2013 Governor’s Environmental Stewardship Awards

Posted in TDEC General

Governor Bill Haslam and TDEC Commissioner Bob Martineau have announced the winners of the 2013 Governors’ Environmental Stewardship Awards. The winners will be recognized at an awards ceremony to be held in Nashville on June 25. There were 11 awards, two of which were awarded to manufacturers. They were: Continue Reading

Alan Leiserson Announces Retirement

Posted in TDEC General

Alan Leiserson, a long time senior counsel and Legal Services Director in the Office of General Counsel for Tennessee Department of Environment and Conservation, has announced his retirement at the end of August of this year. Alan is pictured above (left) in conversation with Governor Haslam (center) and TDEC Commissioner Martineau. Alan will have put in more than 30 years with the State of Tennessee when he retires. While he says has enjoyed every minute of his tenure at the State, he plans to go out and do all the things the rest of us only dream about being able to do in retirement, namely have some fun! Continue Reading

Reorganization of Division of Water Resources

Posted in TDEC General, Water Use and Rights

The Division of Water Resources has announced specifics of its reorganization. Last year, the old Divisions of Water Pollution Control, Groundwater Protection and Water Supply, and the State Revolving Loan Program were combined into a Division of Water Resources, and Sandra Dudley was appointed as Director. The new structure has the following deputy directors and branches: Continue Reading

TDEC Working toward Consistency for Vapor Intrusion Assessments at Clean-Up Sites

Posted in TDEC General, Underground Storage Tanks

TDEC has established teams of experienced staff from the Divisions of Remediation, Solid and Hazardous Waste Management, and Underground Storage Tanks to address consistency in site cleanup issues common among state programs. Currently, there are three teams focusing on the issues of Vapor Intrusion Assessment, Institutional Controls, and Site Investigation. Continue Reading

Environmental Boards Refer Cases to ALJs

Posted in Air Pollution Control

Public Chapter 181, adopted this past legislative session by the Tennessee General Assembly, provided that appeals of enforcement orders, permits, and certain other contested cases be heard first by administrative law judges, with appeal rights therefrom to the relevant environmental board or, in certain circumstances, to Chancery Court. The new statute stated that it would apply only to cases filed after July 1, 2013.  Existing law permitted boards to assign cases to administrative law judges, but environmental boards have rarely done this. Continue Reading