                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                 AUGUST 3, 2004 Session

      CITY OF COOKEVILLE, TENNESSEE v. TENNESSEE WATER
                QUALITY CONTROL BOARD, ET AL.

                Direct Appeal from the Chancery Court for Davidson County
                       No. 02-3694-III  Ellen Hobbs Lyle, Chancellor



                  No. M2003-02476-COA-R3-CV - Filed November 16, 2004


This appeal concerns the rule-making authority of the Tennessee Department of Environment and
Conservation under the Tennessee Uniform Administrative Procedures Act. The City of Cookeville,
seeking to expand its treatment works facility, obtained a permit from the Tennessee Department of
Environment and Conservation which placed nitrogen limits on the City’s effluent emissions into
Pigeon Roost Creek in Putnam County, Tennessee. The city filed a declaratory judgment action with
the Chancery Court of Davidson County asking the court to find as follows: (1) the section 303(d)
list created by the Tennessee Department of Environment and Conservation, which listed Pigeon
Roost Creek as organically enriched, amounted to an improperly promulgated rule in violation of
the Tennessee Uniform Administrative Procedures Act, and (2) the organic enrichment criteria
contained in the section 303(d) list amounted to an improperly promulgated Water Quality Standard,
which in turn constitutes an improperly promulgated rule, that the Tennessee Department of
Environment and Conservation used to impose restrictions on the city’s permit. The parties each
filed motions for summary judgment with the chancery court. The chancellor granted the city’s
motion, finding that the section 303(d) list containing the organic enrichment criteria amounted to
improperly promulgated rules as a matter of law. The state appealed the chancellor’s ruling to this
Court and, for the reasons contained herein, we dismiss this case as non-justiciable.


    Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Dismissed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, Elizabeth
P. McCarter, Senior Counsel, Nashville, TN, for Appellants

William L. Penny, John Knox Walkup, Andrew J. Pulliam, Nashville, TN, for Appellee
                                            OPINION

                         Factual History and Procedural Background

         The City of Cookeville, Tennessee, (the “City”) operates a publicly owned treatment works
facility (the “Facility”) which encompasses a sewage treatment plant. The City treats the wastewater
coming into the Facility through biological and chemical treatment processes. The City discharges
the treated wastewater effluent into the Pigeon Roost Creek located in Putnam County, Tennessee.

        The federal Clean Water Act (the “CWA”), codified at 33 U.S.C. § 1251 et seq., requires
each state to develop Water Quality Standards for the water bodies within their respective borders.
See 33 U.S.C. § 1313 (2003). The CWA also requires each state to compile a list identifying those
water bodies within the state “for which effluent limitations required [under the applicable Water
Quality Standards] are not stringent enough to implement any water quality standard applicable to




                                                -2-
such waters.”1 33 U.S.C. § 1313(d) (2003). The list compiled by each state is referred to as a section
303(d) list.

       In 1977, the Tennessee General Assembly promulgated the Tennessee Water Quality Control
Act (“Water Quality Act”), codified at section 69-3-101 et seq. of the Tennessee Code. Tenn. Code
Ann. § 69-3-101 (2003). The Water Quality Act provides for the establishment of the Tennessee
Water Quality Control Board (the “Board”). Tenn. Code Ann. § 69-3-104(a)(1) (2003). The Board
is composed of ten (10) members, and the Commissioner2 of the Tennessee Department of

           1
               One commentator has explained the interaction between the individual states and federal government as
follows:
                           The water quality standards provisions of section 303 of the Clean W ater
                 Act establish one of the basic mechanisms by which the federal government can
                 require that restrictions be placed on the discharge of pollutants into the nation’s
                 waters. Under this scheme, states establish water quality standards that specify both
                 the specific uses to be made of each body of water within their borders and the
                 maximum concentrations of pollutants that are allowable in view of such uses.
                 States may tailor limitations on polluters to ensure that water quality standards are
                 not violated.
                           The states’ water quality standards, however, are subject to review by the
                 federal Environmental Protection Agency (EPA) to determine whether the standards
                 meet the minimum requirements of the Clean W ater Act. EPA in 1975 first
                 promulgated regulations defining the minimum requirements with which states must
                 comply. In 1982 EPA proposed major revisions to these requirements. . . .
                           ....
                 A state must submit any revised or new standard to the Administrator of EPA, who
                 determines whether the standard “meets the requirements of this chapter.” If the
                 Administrator under this criterion approves the standard, section 303(c)(3) provides
                 that the new or revised standard “shall thereafter be the water quality standard for
                 the applicable waters of that State.” If, however, the Administrator determines that
                 the standard does not meet the requirements of the chapter, he must notify the
                 Governor of the state submitting the standard and advise the Governor of the
                 necessary changes. The Administrator may promulgate the necessary changes as
                 federal standards applicable to the water body within the state if the state does not
                 make the required changes. Section 303(c)(4)(B) also authorizes the Administrator
                 to promulgate a federal water quality standard independently of any state
                 submission if the Administrator “determines that a revised or new standard is
                 necessary to meet the requirements of this chapter.”
Jeffrey M. Gaba, Federal Supervision of State Water Quality Standards Under the Clean Water Act, 36 Vand. L. Rev.
1167, 1168–72 (1983).


           2
            “‘Commissioner’ means the commissioner of environment and conservation or the commissioner’s duly
authorized representative and, in the event of the commissioner’s absence or a vacancy in the office of commissioner,
the deputy commissioner.” Tenn. Code Ann. § 69-3-103(11) (2003). In addition to serving as chairman of the Board,
the Commissioner also has certain statutorily defined duties in carrying out the mandates of the W ater Quality Act. Tenn.
Code Ann. § 69-3-107 (2003). At the time this litigation commenced in December of 2002, Mr. Milton H. Hamilton,
Jr. served as Commissioner of Tennessee Department of Environment and Conservation. In January 2003, the Governor
appointed Betsy L. Child to take over as Commissioner of the Tennessee Department of Environment and Conservation.
                                                                                                             (continued...)

                                                           -3-
Environment and Conservation (“TDEC”) is to serve as chairman of the Board. Tenn. Code Ann.
§ 69-3-104(a)(1)(A) (2003). The Water Quality Act provides that “[t]he board has and shall exercise
the power, duty, and responsibility to establish and adopt standards of quality for all waters of the
state.” Tenn. Code Ann. § 69-3-105(a)(1) (2003). In carrying out this mandate, the Board classifies
all the water bodies within the state and sets water quality standards based on those classifications.3
Tenn. Code Ann. § 69-3-105(a)(2)–(4) (2003).

       In September of 1998, TDEC published its final draft of the 1998 303(d) list. Pigeon Roost
Creek was included on the list as an impaired water body due to “Organic enrichment/DO.” Also
in 1998, the City sought to expand the Facility. The Water Quality Act requires that anyone planning
to expand a treatment works facility which discharges into a water body within the State of
Tennessee must apply for a permit.4 Tenn. Code Ann. § 69-3-108(b)(2), (c) (2003). The City, in
an effort to comply with the Water Quality Act, filed a request for a new National Pollutant
Discharge Elimination System (“NPDES”) Permit (“Draft Permit”) with TDEC. TDEC issued the
City a Draft Permit, but the Draft Permit required the City to monitor the nitrogen levels of its
emissions due to the organically enriched waters in Pigeon Roost Creek.5 At the time that the City


         2
            (...continued)
Official W ebsite of the Tennessee Department of Environment and Conservation, available at
http://www.state.tn.us/environment/bio.php (last visited October 8, 2004). Commissioner Child replaced Mr. Hamilton
in this litigation following the change.

         3
         The W ater Quality Act provides:
                The board has and shall exercise the power, duty, and responsibility to adopt,
                modify, repeal, promulgate after due notice and enforce rules and regulations that
                the board deems necessary for the proper administration of this part, the prevention,
                control, and abatement of pollution, or the modification of classifications and the
                upgrading of the standards of quality in accordance with subsection (a).
Tenn. Code Ann. § 69-3-105(b) (2003).

         4
         The W ater Quality Act provides:
                The board has and shall exercise the power, duty, and responsibility to adopt,
                modify, repeal, and promulgate all necessary rules and regulations for the purpose
                of establishing and administering a comprehensive permit program that will enable
                the department of environment and conservation to be designated by the United
                States environmental protection agency as authorized to issue permits under the
                national pollutant discharge elimination system established by § 402 of the Federal
                W ater Pollution Control Act, P.L. 92-500.
Tenn. Code Ann. 69-3-105(h)(1) (2003).

         5
             The W ater Quality Act directs the Commissioner of TDEC to issue permits according to the following:
                   The commissioner may grant permits authorizing the discharges or activities
                   described in subsection (b) including, but not limited to, land application of
                   wastewater, but in granting such permits shall impose such conditions, including
                   effluent standards and conditions and terms of periodic review, as are necessary to
                   accomplish the purposes of this part, and as are not inconsistent with the regulations
                   promulgated by the board thereunder. Under no circumstances shall the
                                                                                                          (continued...)

                                                           -4-
was issued the 1998 Draft Permit, the Board had not promulgated any Water Quality Standards
regarding organic enrichment. The Draft Permit was reviewed by the federal Environmental
Protection Agency (“EPA”) pursuant to the EPA/Tennessee Memorandum Agreement. The EPA
issued a letter on December 16, 1999, stating that it had reviewed the Draft Permit issued to the City
and concluded that “[b]ased on 40 C.F.R. Section 122.44(d), since nitrogen may cause or contribute
to a water quality excursion at the increased loading, this parameter should be limited in the permit.”
(Exhibit 7 to Plaintiff’s Motion for Summary Judgment). On July 12, 2000, TDEC issued another
NPDES Permit (“Modified Permit”) to the City which contained a numeric discharge limit for
nitrogen.6

        On August 7, 2000, the City filed an administrative appeal with the Board contesting the
terms and conditions in the Permit, specifically the nitrogen limits and placement of Pigeon Roost
Creek on the section 303(d) list.7 The City also filed a Petition for Declaratory Order with the
Board, pursuant to section 4-5-223 of the Tennessee Code,8 seeking a ruling that the section 303(d)
list must be promulgated as a “rule” pursuant to the Tennessee Uniform Administrative Procedures
Act (“UAPA”), codified at section 4-5-101 et seq. of the Tennessee Code. The City alleged that
TDEC, by promulgating and implementing the section 303(d) list containing organic enrichment
criteria for Pigeon Roost Creek, usurped the authority expressly delegated to the Board by the
legislature. On November 4, 2002, the Board declined to issue a declaratory order.



         5
         (...continued)
                  commissioner issue a permit for an activity which would cause a condition of
                  pollution either by itself or in combination with others.
Tenn. Code Ann. § 69-3-108(e) (2003).

         6
          Under the W ater Quality Act, the Commissioner has the power to modify a permit for cause. Tenn. Code Ann.
§ 69-3-108(f) (2003). The letter notifying the City of the Modified Permit provided as follows:
                 In accordance with the provisions of the Tennessee W ater Quality Control Act . .
                 . the enclosed NPDES Permit is hereby modified by the Division of W ater Pollution
                 Control. The continuance and/or reissuance of this NPDES Permit is contingent
                 upon your meeting the conditions and requirements as stated therein. The
                 modification was necessary to correct an error in the permit that was issued on June
                 30, 2000.
                 Since this modification occurred within thirty days of the previous reissuance of this
                 permit, you have the right to appeal any of the provisions established in the NPDES
                 Permit, in accordance with Tennessee Code Annotated, Section 69-3-110 and the
                 General Regulations of the Tennessee W ater Quality Control Board.
The Modified Permit was set to expire on June 30, 2002.

         7
             At the time the State filed the instant appeal to this Court, the appeal before the Board was still pending.

         8
            “Any affected person may petition an agency for a declaratory order as to the validity or applicability of a
statute, rule or order within the primary jurisdiction of the agency.” Tenn. Code Ann. § 4-5-223(a) (2003). The agency
may either convene a contested case hearing and issue a declaratory order, or it may refuse to issue a declaratory order.
Tenn. Code Ann. § 4-5-223(a)(1)–(2) (2003). If the agency declines to issue a declaratory order, the person may apply
for a declaratory judgment pursuant to section 4-5-225. Tenn. Code Ann. § 4-5-223(a)(2) (2003).

                                                             -5-
         On December 10, 2002, the City filed a complaint against the Board and the Commissioner
of TDEC (collectively the “State”) in the Chancery Court of Davidson County, asking the court for
declaratory relief pursuant to section 4-5-225 of the Tennessee Code.9 The City sought a declaratory
judgment as to the following: (1) the 1998 section 303(d) list used by TDEC in making permit
decisions falls within the definition of a “rule” under section 4-5-102(10) of the Tennessee Code,
therefore, the Board must promulgate the list under the UAPA, and (2) that the criteria for organic
enrichment developed by TDEC and utilized in its permitting decisions amounts to a water quality
criteria, which also qualifies as a “rule” under section 4-5-102(10) of the Tennessee Code and must
be promulgated by the Board under the UAPA.

         The City filed a Motion for Summary Judgment with the chancery court on April 15, 2003,
asking the court to find that the 1998 section 303(d) list and organic enrichment requirements were
void as a matter of law. On May 16, 2003, the State filed a Motion to Dismiss the City’s complaint,
alleging that the court lacked subject matter jurisdiction because the issues were pending resolution
in an administrative proceeding below. On June 2, 2003, the State filed a response to the City’s
Motion for Summary Judgment which also contained the State’s Cross-Motion for Summary
Judgment. On June 6, 2003, the chancellor issued an Order denying the State’s Motion to Dismiss,
finding that the City satisfied the requirements of section 4-5-225 of the Tennessee Code. The
chancellor conducted a hearing on the summary judgment motions on July 11, 2003, and she issued
her ruling on July 16, 2003, granting summary judgment to the City. The chancellor ruled that
TDEC used the 1998 section 303(d) list of impaired water streams and the organic enrichment
criteria as a “rule” under section 4-5-102(10) of the Tennessee Code in violation of the UAPA.

        The State filed a Notice of Appeal to this Court appealing only that portion of the
Chancellor’s order pertaining to the validity of the section 303(d) list of impaired streams. The State
asks us to entertain the following issues:




         9
         Section 4-5-225 provides:
                (a) The legal validity or applicability of a statute, rule or order of an agency to
                specified circumstances may be determined in a suit for a declaratory judgment in
                the chancery court of Davidson County, unless otherwise specifically provided by
                statute, if the court finds that the statute, rule or order, or its threatened application,
                interferes with or impairs, or threatens to interfere with or impair, the legal rights
                of the complainant. The agency shall be made a party to the suit.
                (b) A declaratory judgment shall not be rendered concerning the validity or
                applicability of a statute, rule or order unless the complainant has petitioned the
                agency for a declaratory order and the agency has refused to issue a declaratory
                order.
                (c) In passing on the legal validity of a rule or order, the court shall declare the rule
                or order invalid only if it finds that it violates constitutional provisions, exceeds the
                statutory authority of the agency, was adopted without compliance with the
                rulemaking procedures provided for in this chapter or otherwise violates state or
                federal law.
Tenn. Code Ann. § 4-5-225(a)–(c) (2003).

                                                             -6-
I.       Whether the trial court erred in finding that TDEC was using the section 303(d) list of
         impaired streams as a “rule” in violation of the UAPA; and
II.      Whether the trial court erred in finding that TDEC used the section 303(d) list as a water
         quality standard to impose NPDES permit requirements on dischargers such as the City of
         Cookeville?

For the reasons set forth below, we decline to entertain the issues presented by the State because
this case has become moot. In addition, to address the issues raised by the State would amount to
this Court issuing an advisory opinion, which we decline to do.

                           Dismissal of Appeal on Non-Justiciability Grounds

       On appeal, the State’s brief directs our attention to the fact that the Board subsequently
promulgated an emergency rule regarding nutrient criterion for Tennessee’s water bodies as a result
of the chancellor’s ruling.10 The new regulation was adopted into the Board’s Water Quality
Standards in September of 2003 and codified at Tenn. Comp. R. & Reg. 1200-4-3-.03(3)(i). 11 We
have determined that the promulgation of this new Water Quality Standard governing the organic
enrichment of Tennessee’s waters has a direct bearing on whether this case is justiciable, therefore
we will consider this additional fact on appeal.12


         10
             The Board enacted the emergency rule on July 22, 2003, to address the chancery court’s ruling that organic
enrichment resulting from excessive nutrients cannot be addressed in NPDES permits issued by TDEC absent a water
quality standard rule adopted by the Board under the UAPA. (Appellant’s Br. at 3; Exhibit 1). The State’s brief stated
that “[a]lthough the State appellants disagree with the Chancery Court’s ruling with respect to organic enrichment, the
issue has not been appealed in anticipation of a mootness defense being raised by virtue of the Board’s formal adoption
of the nutrient criterion.”

         11
            The City took issue with the inclusion of this new information on appeal and filed a M otion to Consider Post-
Judgment Facts Under Tenn. R. App. P. 14 with this Court on July 21, 2004. The City asked this Court to consider the
ruling by the Administrative Law Judge (“ALJ”) issued on M arch 9, 2004, after the present appeal was filed in this Court.
The ALJ granted the City’s motion for partial summary judgment stating that “the reason for the nitrogen limit in the
City’s permit was Pigeon Roost Creek’s inclusion on the 303(d) list.” (Order Granting Petitioner’s Motion for Partial
Summary Judgment). The ALJ went on to find the following:
                             That argument, as to whether the State can retroactively apply Emergency
                   or Permanent Rules to pending applications, need not be decided, here.
                             ....
                             [T]he nitrogen limits set forth in the NPDES permit/ “application” issued
                   to the City is void and of no effect.
The State filed a response arguing that it brought the new rule to this Court’s attention to explain why the State did not
appeal the chancery court’s ruling on the organic enrichment issue. Accordingly, the City argues that the chancellor’s
ruling on that issue stands, and, therefore, the previous organic enrichment criteria applied to the City in the Permit is
no longer in effect and cannot be applied retroactively. The ALJ’s opinion also references the fact that the City has a
renewal permit application still pending before the Board.

         12
              Rule 14 provides as follows:
                    (a) Power to Consider Post-Judgment Facts. The Supreme Court, Court of Appeals,
                                                                                                            (continued...)

                                                           -7-
       In granting the City’s motion for summary judgment, the chancellor’s order contained the
following statement:

                  [T]he Court finds and concludes that the undisputed facts presented
                  to the Court show that the Defendants are using both the State’s 1998
                  303(d) list of impaired water streams (“303(d) list”) and organic
                  enrichment criteria set forth in the 303(d) list as a Rule as that term
                  is defined in Tennessee Code Annotated 4-5-102(10).

The State filed a Notice of Appeal to this Court stating that it was appealing “only that portion of the
Order addressing the State’s 303(d) list of impaired streams.”13

        This Court must be utilized in a manner that ensures our decisions will have a direct bearing
on the parties before the Court, and we have stated as much:

                          In general terms, the justiciability doctrine requires that cases
                  must involve presently existing rights, live issues that are within a
                  court’s power to resolve, and parties who have a legally cognizable
                  interest in the judicial resolution of the issues. Thus, courts will
                  decline to provide judicial relief in cases that do not involve genuine
                  existing controversies requiring the adjudication of present rights.
                  State ex rel. Lewis v. State, 208 Tenn. 534, 347 S.W.2d 47, 48 (1961);
                  Ford Consumer Fin. Co. v. Clay, 984 S.W.2d 615, 616 (Tenn. Ct.
                  App. 1998), and will likewise decline to render declaratory judgments
                  to decide theoretical questions or render advisory opinions. State v.


         12
          (...continued)
                  and Court of Criminal Appeals on its motion or on motion of a party may consider
                  facts concerning the action that occurred after judgment. Consideration of such
                  facts lies in the discretion of the appellate court. While neither controlling nor fully
                  measuring the court’s discretion, consideration generally will extend only to those
                  facts, capable of ready demonstration, affecting the positions of the parties or the
                  subject matter of the action such as mootness, bankruptcy, divorce, death, other
                  judgments or proceedings, relief from the judgment requested or granted in the trial
                  court, and other similar matters. Nothing in this rule shall be construed as a
                  substitute for or limitation on relief from the judgment available under the
                  Tennessee Rules of Civil Procedure or the Post-Conviction Procedure Act.
Tenn. R. App. P. 14(a) (2003)(emphasis added). W e denied the City’s motion to supplement the record with the ALJ’s
opinion because the ruling of the ALJ is merely a legal conclusion, and it does not constitute a post-judgment “fact.”


         13
            Tennessee Rule of Appellate Procedure 13(b) provides that ‘[r]eview generally will extend to only those
issues presented for review.” Tenn. R. App. P. 13(b) (2003). The Advisory Commission Comment to Rule 13(b)
provides that “this subdivision provides that review will typically extend only to those issues set forth in the briefs.”
Tenn. R. App. P. 13(b) cmt. (2003). Accordingly, we consider only that portion of the chancellor’s ruling presented
for review by the State.

                                                          -8-
                  Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn.
                  2000).

Charter Lakeside Behavioral Health Sys. v. Tenn. Health Facilities Comm’n, No. M1998-00985-
COA-R3-CV, 2001 Tenn. App. LEXIS 58, at *14 (Tenn. Ct. App. Jan. 30, 2001). “It is, of course,
well settled that when the issues sought to be presented by an appeal have been rendered moot
pending the appeal the appeal will be dismissed.” State v. Thomas, 585 S.W.2d 606, 607 (Tenn.
1979) (citations omitted); see also Dockery v. Dockery, 559 S.W.2d 952, 954 (Tenn. Ct. App. 1977).

        “A moot case is one that has lost its character as a present, live controversy.” McIntyre v.
Traughber, 884 S.W.2d 134, 137 (Tenn. Ct. App. 1994) (citing McCanless v. Klein, 188 S.W.2d
745, 747 (Tenn. 1945)). “Cases must be justiciable not only when they are first filed but must also
remain justiciable throughout the entire course of the litigation, including the appeal.” Id. “A case
will generally be considered moot if it no longer serves as a means to provide relief to the prevailing
party.” Id. (citations omitted).

        Based on our review of the record, the chancery court’s holding that the 1998 section 303(d)
list amounted to an improperly promulgated rule is inextricably intertwined with the fact that the list
cited the Pigeon Roost Creek as “organically enriched.” The City’s complaint for declaratory relief
hinged on the fact that the 1998 section 303(d) list stated that Pigeon Roost Creek was “organically
enriched.” The State concedes that at the time the limits were placed in the City’s Modified Permit
the Board had not promulgated any regulations addressing organic enrichment of water bodies within
this state. The State argues, however, that the section 303(d) list is not a rule but only an
interpretation of already promulgated Water Quality Standards.14

       The City argues that this case is not moot because there is the potential that a new section
303(d) list may be used to impose another limit on future permits the City may seek. We note that
we can only address the facts as they existed at the time this case was tried below. We agree with
the City in that the State’s failure to appeal the chancery court’s ruling regarding the organic
enrichment limitations placed in the Modified Permit effectively prevents the State from



         14
             In arguing that the section 303(d) list is not a “rule” under the UAPA, the State’s brief contained the
following argument:
                    But a discharger such as Cookeville is not required to comply with the 303(d) list
                    and, by corollary, it cannot be in violation of the list. Instead, a discharger must
                    comply with the water quality standards promulgated by the Board, and those
                    standards are the predicate for establishing conditions in NPDES permits such as
                    the one issued to Cookeville.
                             ....
                             In sum, the 303(d) list of impaired streams is an interpretive tool used by
                    TDEC to implement the Board’s promulgated water quality standards.
During oral argument, the State asserted that the list itself is not the cause of the limits placed in the City’s Modified
Permit, but is in fact the W ater Quality Standards themselves - W ater Quality Standards, which we note, did not exist
at the time the limitations were placed in the City’s Modified Permit.

                                                           -9-
retroactively applying the criteria from the 1998 section 303(d) list.15 The City itself stated during
oral argument that the nitrogen limits placed in the Modified Permit have been removed. In addition,
the Modified Permit issued by the State that is at issue in this case expired on June 30, 2002. The
state’s decision not to appeal the organic enrichment criteria as they existed at the time the City filed
its complaint demonstrates that the State intends to apply the newly promulgated organic enrichment
Water Quality Standard to all permit applications submitted after the standard was adopted.
Therefore, in light of events occurring after this appeal was filed, the question of whether the 1998
section 303(d) list was an improperly promulgated “rule” has become moot. A decision by this
Court holding that the 1998 section 303(d) list used in issuing the prior permit to the City did or did
not constitute a “rule” under the UAPA would have no effect on the permit at issue, which no longer
contains nitrogen limitations and has already expired. In essence, we are left with the issue of
whether a future section 303(d) list would constitute a “rule” which must be promulgated by the
Board, and not TDEC, in order to be in compliance with the UAPA. Addressing that issue would
amount to this Court issuing an advisory opinion, which we decline to do.

                                                     Conclusion

       For the foregoing reasons, this case stands dismissed. Costs of this appeal are taxed against
the Appellants, the Tennessee Water Quality Control Board and Betsy L. Child, in her capacity as
Commissioner of the Tennessee Department of Environment and Conservation, for which execution
may issue if necessary.



                                                                 ___________________________________
                                                                 ALAN E. HIGHERS, JUDGE




         15
             W e are not asked to, nor could we, address whether the City may impose limitations on a future permit issued
to the City using W ater Quality Standards that were promulgated by the Board after this case was tried. On appeal, we
are only asked to consider whether the 1998 section 303(d) list, which contained organic enrichment criteria, was an
improperly promulgated rule under the UAPA.

                                                          -10-
