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City hires lawyer to challenge EPA on Hinkson Creek cleanup

Monday, December 13, 2010 | 7:56 p.m. CST; updated 5:33 p.m. CST, Saturday, January 1, 2011

*CORRECTION: The EPA's draft regulations recommend that Columbia reduce stormwater runoff into the Hinkson Creek by 39.6 percent. An earlier version of this article misstated that percentage.

COLUMBIA — The city of Columbia has hired an attorney to respond to the EPA's recommendations for cleaning up Hinkson Creek.

The draft recommendations, called a TMDL or total maximum daily load, call for Columbia to reduce the amount of stormwater that runs into Hinkson Creek by 39.6* percent. The EPA has until Dec. 31 to review public comments and make a final recommendation.

Representatives of the city and Boone County governments, as well as MU, met in a closed session Nov. 12 to determine a response to the EPA recommendations. The public comment period ended Dec. 1.

A letter from David Shorr of the law firm Lathrop and Gage, dated Dec. 1, represents the position of the city, county and university.

The 23-page letter disputes the listing of Hinkson Creek as "impaired," alleges that the EPA unlawfully treats stormwater as a pollutant in its recommendations, and asserts that the recommendations would have adverse effects on the community and would inhibit the property rights of downstream landowners.

Much of the controversy centers on the use of stormwater as a surrogate for a specific pollutant. The Clean Water Act stipulates that a specific pollutant must be identified before a recommendation can be developed. The EPA's recommendations designate stormwater, which carries with it a variety of pollutants, as a surrogate for a specific pollutant to fulfill requirements of the Clean Water Act.

Shorr disputes that designation.

"It's our belief and other commenters' belief that the EPA has an obligation to designate a pollutant, which is a specific term, in order to provide communities the ability to properly plan for a TMDL," Shorr said.

In its draft recommendation, the EPA listed several pollutants associated with stormwater runoff, including insecticides, herbicides, chloride, petroleum waste oil and plasticizers.

Shorr also disputed the placement of Hinkson Creek in 2004 on the list of "impaired" streams. The designation specifies unknown pollutants.

"I would argue that there's insufficient data to demonstrate that Hinkson Creek belongs there," Shorr said.

Ken Midkiff, chairman of the Osage Group of the Sierra Club, said he thinks it's "legal and appropriate" for the EPA to use stormwater as a pollutant in its recommendations and said that he had been "assured many times" by the EPA and the Missouri Department of Natural Resources of that.

"We'll challenge whether it's appropriate," Shorr said. "We do not believe it is. We do not agree with Sierra Club's evaluation."

Midkiff said the EPA asked the Sierra Club for an extension of its Dec. 31 deadline to respond to public comments and make its recommendation, which the Sierra Club declined.

The EPA can ask for an extension of 60 days on its own but must do so 30 days before the deadline. According to Midkiff, the time to ask for such an extension has passed.

"The EPA is required to establish this TMDL by Dec. 31, and if the city wants to delay, it's too late," Midkiff said. "If the EPA does not establish the TMDL by Dec. 31, 2010, as required by law, we will bring suit."

In its comments, the Sierra Club said, "We do understand that there is a threat of a lawsuit by the city of Columbia, the county of Boone, and the University of Missouri — if the lawsuit requests a 'stay,' that would be viewed as a contradiction of the federal court order."

The federal court order refers to the Missouri Supreme Court's 2001 decision in American Canoe Association et al. v. EPA, which orders the EPA to establish a TMDL for Hinkson Creek by Dec. 31, 2010.

Shorr would not comment on the possibility of a lawsuit but said that "if the EPA wants to experiment with legal proceedings, that is another issue."

Another point of controversy centers on whether Hinkson Creek is polluted.

"I don't know if Hinkson Creek is polluted," Shorr said. "Neither does the EPA. There's limited sampling on Hinkson Creek."

Midkiff pointed to several documented fish kills as evidence of Hinkson Creek's pollution. But Jason Hubbart, a researcher at MU who works on Hinkson Creek, said, "Fish kills occur naturally. Fish kills are not themselves evidence that Hinkson Creek is polluted."

Midkiff said that, while fish kills can occur naturally, there is no evidence that the conditions for a natural fish kill, such as low dissolved oxygen, are present in Hinkson Creek.

Shorr and Hubbart both advocate further sample collection and a revision of the EPA's recommendations.

"We want them to look at which are the more viable potential pollutants and go through a process that is orderly to determine whether those will result in improvement," Shorr said.

But for Midkiff, the time for study is over.

"Hinkson Creek has been impaired by unknown pollutants for 12 years," Midkiff said. "They had 12 years to do the studies they claim haven't been done. The court ruling is clear. The EPA must establish a TMDL by Dec. 31."


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Comments

James Fairchild December 13, 2010 | 8:54 p.m.

Corrections needed, Mr. Shorr. Hinkson Creek is Impaired under the 305B Statute; in the absence of a TMDL and corrective actions it is the downstream landowners that have lost property rights since 1999. If the TMDL reduction is mandated by the USEPA (in accordance with the Clean Water Act) it is the upstream property owners that may lose property rights such as the freedom to ignore the stream buffer ordinance; the right to indiscriminately add to our level of impervious surfaces (e.g. future Atkins Development); the right to build on slopes greater than 15% (Atkins development; and the opportunity to ignore the fact that construction of impervious surfaces at a level above 25% of the watershed impairs urban streams. I would do my homework before I challenge the USEPA. The future of Columbia and Boone County depends on its environmental health....not on lawyers that make money ignoring and distorting the facts. The Missouri Department of Natural Resources has documented that Hinkson Creek is impaired using standard scientific approaches. If you think the data is insufficient or inaccurate, then ask for additional studies and and pay for them. Additional studies would cost less than the bridge exiting Lemone Blvd over Grindstone Creek; the new city parking garage across from the Post Office (with or without window dressing), or the Discovery (R)Bridge to Nowhere.

(Report Comment)
Michael Williams December 13, 2010 | 9:31 p.m.

Geez, build a lake.

And call it HERB*

* HERB = huge-effective-rain-barrel.

(Report Comment)
Cantor Billows December 14, 2010 | 8:48 a.m.

Great idea Columbia!

Forget about the health of Missouri citizens or the long-term benefits that come from good stewardship of our natural resources so long as we can have another strip mall or parking lot.

No you're right, send it downstream and let someone else worry about the problem.

Or better, lets pump it into the basement or swimming pool of the equally cynical and sanctimonious David Shorr.

(Report Comment)
Paul Allaire December 14, 2010 | 2:17 p.m.

While I have some sympathy with the city on this one I have to admit that cleaning up the stream or controlling some runoff isn't going to adversely impact the property rights of downstream land owners. If someone tried to present that as a legal argument they should be disbarred for the safety of the general public.

(Report Comment)
Mark Foecking December 16, 2010 | 8:31 a.m.

We have to recognize the cause of most of our problems with pollution in runoff is our automobile dependence. Roads and parking lots represent about 60% of impervious surface in any development, and automobiles are the source of many of the pollutants found in these streams, as are road clearing chemicals.

Treatment of this runoff to near - pristine levels will be incredibly expensive (road salt, for example, cannot be removed from effluent by any conventional stormwater treatment other than evaporation). It isn't just development that is the problem here - it's the fact we want to be able to drive whatever, whereever, and whenever we want. Addressing this will make more difference to the health of the stream than any other course of action, however, that's like telling an alcoholic he'd lose weight and be healthier if he'd just drink less.

Developers aren't the problem. We are. Everybody.

DK

(Report Comment)
Todd Wagner December 21, 2010 | 4:53 p.m.

Downstream rights are infringed upon when upstream property owners reduce their runoff and reduce the amount of water in the stream for downstream owners to use. If you were a cattle farmer or using the stream water in some other way you would understand that all too well.

(Report Comment)
Allan Sharrock December 21, 2010 | 5:49 p.m.

Todd if people were downstream of cattle or pigs they would complain and not understand. It happens all the time.

(Report Comment)
Glenn Rice December 22, 2010 | 8:49 a.m.

"The city of Columbia has hired an attorney to respond to the EPA's recommendations for cleaning up Hinkson Creek."

Could the Missourian please publish copies of Shorr's contract(s) with the City, County, and University to represent them to the EPA?

(Report Comment)
Gregg Bush December 22, 2010 | 9:48 a.m.

Does anyone know how to make a web app for a "billable hours" clock? I don't.
When this drags out - I just want to know what the total will be so I'm not surprised. It's partially my money after all. And I'd like to budget for it.

(Report Comment)

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