The Sierra Club was disappointed by the Shelby County Groundwater Quality Control Board's recent denial of our appeal of the last two (out of five) permits that the Shelby County Health Department issued to the Tennessee Valley Authority (TVA) to place wells in the Memphis Sand Aquifer. The stated intent of these wells is to provide the 3.5 to 5 million gallons of cooling water that will be lost to evaporation every day in the operation of a new natural gas plant.
We don't hold it against the board. They were only asked to rule on whether the Health Department followed the rules that the board promulgated nearly 30 years ago. The board did not rule on the merits of our argument — that TVA's wells may pose a threat to the future quality of our drinking water by inducing the downward leakage of lower quality water from the surficial aquifer through breaches in the confining clay layer that protects the Memphis Sand.
We are pleased, however, that our arguments have resonated with the public, with elected officials, and with the professionals who manage the Health Department's Division of Pollution Control. A broad consensus has developed that it is time to revisit the Well Permit Rules adopted in 1987.
That 1987 groundwater ordinance was progressive for its time, far surpassing state law. Commissioners rightly recognized the immense value that the high-quality water from the confined aquifers deep beneath Memphis — the Memphis Sand and Fort Pillow Sand — represented to our public health and local economy. They had the vision to implement policies to conserve this resource and protect it from pollution.
Our appeal of TVA's permit did expose several deficiencies in the rules, and the Sierra Club is now working with Health Department and County Commissioners to address them:
1) There is no provision for public notice or participation in the permitting process. We believe that the Department should maintain a notification list and make permit applications available.
2) Subjective terms like "reasonable use" need to be further defined. The criteria and procedures by which justification of need or exceptions are determined require more clarity, and the process needs to be much more robust and subject to public comment.
3) The appeal process appears to have been meant for those who have been denied a permit, rather than those who disagree with permits that were granted contrary to the intent of the rules. The time gaps between notice of issuance, deadline to file an appeal, and the hearing of the appeal need to be lengthened to allow a fair hearing of appeals.
4) At the recent hearing, the Sierra Club was not allowed to call experts from the University of Memphis Center for Applied Earth Science and Engineering Research (CAESER) or the United States Geological Survey (USGS) as witnesses, nor was the board allowed to ask them to answer any questions. The presence of such experts is essential if the board is to make science-based decisions.
5) TVA was allowed to act as a third party to the appeal, despite the fact that there is no provision for third-party intervention in the current ordinance. This allowed TVA undue influence over the rules of procedure and evidence.
6) As currently composed, the Shelby County Groundwater Quality Control Board does not adequately represent the public interest. The board should include more appointments from the public at large, specifically members who represent public health, conservation, and environmental justice interests.
7) There are several land use and/or facility siting decisions that may pose threats to our aquifers that should also be reviewed by the Groundwater Quality Control Board. These include zoning or permitting of sand and gravel mines, landfills, petroleum pipelines, and chemical or petroleum storage tanks.
The Sierra Club believes that the ideal permitting process would be similar to the Land Use Control Board's procedure for planned developments. Well or other aquifer impacting permit applicants would file a permit. If more than 10,000 gallons per day, the public would be notified and would have 30 days to submit comments and request a public hearing.
At the permit hearing, the board would hear comments from the public and hear testimony from experts from the University of Memphis, U.S. Geological Society, and others. If contested, the board would vote and forward a recommendation to the Shelby County Commission for final decision. If the commission's decision is appealed by either party, it would be heard by a court of competent jurisdiction.
It's our water, and the water is our future.
Scott Banbury is conservation program coordinator for the Tennessee chapter of the Sierra Club.