Judge reverses state ruling on farm pond

Chancellor J.B. Cox ruled on March 16 that the Tennessee Water Quality Control Board, a division of the Tennessee Department of Environment and Conservation (TDEC), applied its own views instead of adhering to state law in a case against Bill Lancaster, formerly of State Highway 64 West.

"It's good to finally get someone to back you up," Lancaster said of the judge's ruling.

According to Tisha Calabrese-Benton, TDEC Communications Director, the department believed that an Aquatic Resource Alteration Permit (ARAP) would be required to dam an intermittent stream on Lancaster's property.

Lancaster and the Tennessee Farm Bureau Federation had argued that the activity fell within the agricultural exemption contained in Tennessee's Water Quality Control Act, Calabrese-Benton said.

"The Water Quality Control Board ruled in the department's favor, and the Bedford County Chancery Court has reversed that ruling," she said. "The department has just received the court's decision and is in the process of reviewing it."

Calabrese-Benton told the T-G Friday that TDEC received a complaint about Lancaster's pond in April 2006 and issued a Notice of Violation in August of that year.

"The order had a total of $7,250 in civil penalties with $2,500 due up front and the rest contingent upon compliance with the order," Calabrese-Benton said.

Bureau, farmer happy

The president of the Tennessee Farm Bureau, Lacy Upchurch, said that the state's largest farm organization feels vindicated by Cox's decision.

"It is frustrating to make any farmer hire a lawyer and spend thousands of dollars to get government officials to recognize that the legislature clearly said you don't need a permit to build a pond for cows to drink out of," Upchurch said in a press release Monday.

Lancaster still owns property in Bedford County, but now resides in Moore County. When reached on Monday, Lancaster said that Cox "agreed with what I said all along" about the environmental exemption, which Lancaster said he researched on his own before the long legal battle with TDEC began.

Upchurch explained that the Farm Bureau entered the case on Lancaster's behalf "in an effort to represent the interest of all Tennessee farmers."

"Our citizens deserve clear and decisive directions from our state agencies consistent with state law in order that they can be assured they are abiding with state laws," Upchurch stated. "Instead we have been entangled in a web of conflicting advice, internal disagreements and unpublished policy pronouncements."

"This is a prime example of overreaching government authority people are faced with every day ... in a lot of other things, too," Lancaster said. "It's a shame that people have to spend money and time to fight things like this."

"Our farmers actively protect the environment and want to do what is right," said Upchurch. "When we are told many different things and do not have the 'bright line' explanation of what is right and wrong, citizens must regrettably turn to courts to clear the air."

"We stand ready to work with the state at all times to work out practical and reasonable solutions," Upchurch said.

Lancaster also said he hopes that his victory in the case with TDEC "helps other folks down the road."

Ignored exemption

Cox's eight-page ruling overturns the "Final Decision and Order of the Tennessee Water Quality Board" that was entered on Sept. 26, 2007, in Lancaster's case.

Chancellor Cox wrote in his opinion that comments by members of the Board "indicate that the Board acted arbitrarily by applying their own views instead of the law that was applicable to this case."

The judge said that while the Board's conclusion "is an accurate recitation of the law in the absence of the agricultural activity exception, it clearly ignores the exemption in reaching its conclusion."

"This conclusion is in keeping with the record that illustrates that the clear intention of TDEC was to swallow the (agricultural) exception carved out by the legislature in favor of its overreaching policies that clearly ignored the exception," Cox wrote. "Clearly it was TDEC's intention to regulate this activity without even considering whether the agricultural exemption would apply."

The judge also ruled that the Board did not rely on the plain language of the agricultural exception when making its final decision.

Referring to the legal language in the exemption, Cox wrote that "'Nothing whatsoever' means nothing whatsoever. Id. No provision of the Water Quality Control Act shall be applied to agricultural activities. This language does not need outside interpretation."

Cox also ruled that the cost of the cause are assessed against the Water Quality Board.

Farmer taped

According to a report aired on WSMV television in September 2007 about the matter involving Lancaster's pond, TDEC established a new set of departmental restrictions on recording conversations with citizens without telling them.

The change was made after a hearing in Lancaster's case revealed that there were over three hours of tapes made of TDEC officials and the Bedford County farmer ­-- both in person and over the telephone.

It is legal in Tennessee to record a telephone conversation if at least one party is aware of it, but after the recordings came to light, the department's policy on doing so was changed by TDEC Deputy Commissioner Paul Sloan, who wrote that "routine undisclosed recording of conversations by a government agency may chill the public's candor in communicating with that agency."

"Routine undisclosed recordings of conversations by a government agency may foster fear and distrust of the agency by the public," Sloan said.