By Amye Anderson
UCBJ Managing Editor
COOKEVILLE – Brian Paddock, pro bono legal counsel for the Tennessee Sierra Club, recently filed a petition on behalf of the environmental organization, seeking judicial review of the Aquatic Resource Alteration Permit (ARAP) issued for the Shoppes at Eagle Point project site. It’s a matter, he says, of ensuring the permitting processes handled by the state’s department of environment and conservation (TDEC) for the site don’t become precedent.
The petition, filed with the Davidson County Chancery Court late last month, calls for the review and, Paddock hopes, the reversal of an administrative judge’s ruling that denies the Sierra Club from presenting its concerns to the agency’s water quality control board. Those concerns, Paddock tells the UCBJ, revolve around anti-degradation rules as well as concerns the Club has regarding TDEC’s permitting process for the Shoppes.
Under the state’s anti-degradation rules, activity that would cause significant degradation of waters identified as Exceptional Tennessee Waters – such as the wetlands site near the Shoppes development – will only be authorized if the applicant demonstrates reasonable alternatives to degradation are not feasible and degradation is necessary to accommodate important economic or social development in the area without violating water quality criteria.
After reviewing alternative analysis and social and economic justification documents submitted by the developer, TDEC greenlit the project; deeming it “necessary to accommodate important economic or social development in the area.”
But, Paddock argues TDEC side-stepped some of the requirements when issuing permits for the site. In an earlier petition, filed by the Sierra Club in 2016, the group argued that “TDEC here asserts that the protection of some other exisiting wetland is all that is required, not as a mitigation necessary for unavoidable ecosystem losses but as a means to avoid all consideration of alternatives to proposed activities under ARAP rules, and eliminating all requirements of the anti-degradation statement.”
Shoppes developer Browning Development Solutions, LLC, initially secured a 35-acre mitigation site in White County; later securing an additional 10.5 acres at the Boyd Farris Road and Lemon Farris Road site in Cookeville after TDEC received public comments noting Cookeville and Putnam County would see a loss in wetland function.
Paddock says the decision to issue permits after the addition of the Cookeville mitigation site “gutted” the anti-degradation requirements. Over the years, Paddock and the Sierra Club have filed a number of petitions and aired multiple public grievances against TDEC and the Shoppes’ developer.
In September 2016, the state’s office of general counsel filed a motion to dismiss an earlier petition submitted by the Sierra Club, citing the group failed to provide sufficient supporting facts for their argument – at that time, the Club’s reported sixth attempted claim for relief.
TDEC maintains it followed proper procedure in the issuance of permits for the project.
“The department’s position is, and always has been, that it has thoroughly complied with all applicable legal requirements in issuing this permit.” – Eric Ward, TDEC Communications Director
“This interlocutory appeal is purely procedural, does not address the merits of the case, and does not affect the ongoing development at the site,” Ward added.
The water quality board now has 45 days to prepare for the record, after which the parties will then present their briefs and oral argument. The chancellor will then decide whether or not the water quality control board will hear the anti-degradation arguments from the Sierra Club.
Preliminary discussion of a proposed new retail development along Interstate Drive began nearly four years ago. Site plans began circulating in 2015 and The Shoppes at Eagle Point stood poised for a summer 2016 completion; pending environmental approval. Later that year, the Sierra Club filed a petition in opposition of the development voicing concerns for the nearby wetlands.
The Shoppes at Eagle Point development, valued north of $50 million, is expected to have a significant impact on the local and regional economy once complete. In addition to the anticipated $2.4 million boost to the local sales tax revenue stream, the center’s various retailers are estimated to employ more than 600 people combined.
“Just for the record, I don’t dislike Publix,” Paddock told the UCBJ. “I don’t have anything against one of (the Shoppes at Eagle Point’s) lead anchor tenants at all. This is nothing about my predilections.”
Sign up to receive our newsletter!