Sierra Club disputes attorney's authority in city's dispute with EPA

Monday, December 20, 2010 | 7:32 p.m. CST; updated 5:32 p.m. CST, Saturday, January 1, 2011

COLUMBIA — Ken Midkiff of the Osage Group of the Sierra Club has acquired a letter that he says limits attorney David Shorr's authority in the Hinkson Creek dispute. 

Shorr has represented the city, county and MU in their effort to challenge the EPA's recommendations to clean up the creek.

A 2001 court order mandated that the EPA issue guidelines to remove the Hinkson from the state's list of impaired creeks. Draft guidelines were submitted in November, and the public comment period ended on Dec. 1.

The city objects to the EPA's recommendation to reduce the amount of stormwater entering the creek as too costly. 

On Dec. 1, Shorr submitted a 23-page response on behalf of the city, county and MU criticizing the EPA recommendations.

Midkiff said a letter from the city, which he received as part of  an open-records request appears  to restrict Shorr's authority solely to the matter of stormwater permits issued by the Missouri Department of Natural Resources.

City Manager Bill Watkins called Midkiff's allegations baseless.

The July 9, 2008, letter from Lathrop and Gage, Shorr's law firm, defines the terms of his relationship with the city in its appeal of the stormwater permit issued by DNR.

In a section titled "Scope of Representation," the letter states: "Your engagement of the firm is limited to the matter described in the initial paragraph of the letter," referring to the stormwater permit appeal.

Thus, Midkiff disputes whether Shorr can legally represent the city, pointing out that "the City Council has never, ever voted on or even discussed the city's position on the EPA's recommendations."

"The City Council has never even discussed the Hinkson Creek TMDL, has taken no position on it and has not agreed to be represented by David Shorr on the TMDL matter," Midkiff said.

TMDL, or total maximum daily load, refers to the EPA recommendations to clean up Hinkson Creek.

Watkins said "Shorr has represented the city for several years. I believe it did come before council. This is a professional services contract."

Shorr maintains he is authorized by the city, county and MU to proceed on their behalf.

"I don't agree with Mr. Midkiff," Shorr said. "I would not have had to have extra authorization to talk to the EPA."

Shorr also pointed out that he has general engagements with the city, county and MU independently, which allow him to represent them on matters not specified when he was first hired.

First Ward Councilman Paul Sturtz disagreed.

"As far as I can tell, the City Council, which is elected by the people of Columbia, has not deliberated on the issues Mr. Shorr is lobbying about," he said. "Him representing the position of the city of Columbia is problematic."

Second Ward Councilman Jason Thornhill, however, said, "It's safe to say that on some level (Shorr) speaks for the city."

"The City Council doesn't represent the city," he said. "We represent the residents of the city. The city itself can seek out professionals to do this job."

Sturtz called Thornhill's statement "interesting."

"I don't think Thornhill's interpretation is borne out by the charter," Sturtz said. 

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Paul Love December 21, 2010 | 8:49 a.m.

So why is Mr. Midkiff interested you might wonder. I would like to point out that Mr. Midkiff and the Sierra Club are responsible for the financial nightmare the Columbia and Boone County are facing. It is through their actions we find ourselves in this mess.

Now are the stopping poisons running into the stream, No! Are they stopping dumping of trash in the stream, No! Are they stopping "flashiness", Why yes they are. Whats flashiness you might ask. Well thats when the stream goes up rapidly after a rain and quickly receeds after the rains stop. This is why there are no guidelines for reducing polution, no stopping of toxic runoff. We aren't stopping those things, we are instead asked to stop the rain.

I've got a news flash for those of you out there. Missouri soil has a high clay content and doesnt' retain water well. Even if Mr. Midkiff could convince everyone to live in earthen burrows dug with their bare hands we will still experience "flashiness" because with Missouri's clay soils sure as the rain falls the river will rise.

(Report Comment)
Paul Allaire December 21, 2010 | 9:45 a.m.

And he's such a good lawyer too. He contends that reducing the "flashiness", as you say, of the stream will negatively impact the rights of property owners downstream. Is he able to bill the city for that?

(Report Comment)
John Schultz December 21, 2010 | 10:02 a.m.

Paul Allaire (gee, too many Pauls!), I think I saw you make that claim before but thought you were misinterpreting what Ken Midkiff was wanting. Are you claiming Midkiff believes that, or Shorr?

(Report Comment)
Paul Allaire December 21, 2010 | 10:44 a.m.

Shorr made that a component of his legal argument against the action of the EPA. I believe that it is very counterproductive for the city to engage in a weak attempt at a legal slight of hand regarding this issue, and probably any. I don't know who couldn't see through that if they stopped and looked for a minute.

And then there's the question of who, if anyone, even wanted him to work on the issue. Is he getting paid for that?

(Report Comment)
Christopher Foote December 21, 2010 | 10:50 a.m.

@Mr. Love,

Obviously, this issue is not about stopping natural runoff. Rather the issue centers around governing authorities green lighting development that deleteriously affects Missouri waterways, in violation of EPA standards and the Clean Water Act.

I fail to see how externalizing pollution costs is an embrace of free market principles. You are in fact supporting a position in which governing authorities tacitly approve of private entities transferring pollution costs to the state.

If the infrastructure costs are to high to meet the EPA standards, than perhaps the development shouldn't proceed. The solution is not to do what was done which was just ignore the regulations.

Here's the EPA on the THF Grindstone Development LLC 2007 violation (They built the Grindstone Parkway Wal-mart):

"EPA determined that the construction site lacked proper erosion controls, leading to runoff of sediment into the Hinkson Creek tributary in violation of the state discharge permit and federal stormwater requirements.

The U.S. Army Corps of Engineers notified EPA that there were concrete culverts built directly onto the banks and into the Hinkson Creek tributary without a permit required by the Clean Water Act.

The illegal culverts, which increased the speed of the stream, made erosion and sediment shifting problems worse."

What would your prescription be to fix this problem? Or is it your position that private entities can and should ignore pollution regulations, so as to maximize growth and profit?

(Report Comment)
John Schultz December 21, 2010 | 11:15 a.m.

So did the EPA or Corp sue THF for remediation/repair?

(Report Comment)
Christopher Foote December 21, 2010 | 11:35 a.m.

They fined them, and directed them to plant trees/shrubs along the banks. However, the culverts remain, thus the problem has not been fully remedied.

(Report Comment)
James Fairchild December 21, 2010 | 11:44 a.m.

This Hinkson Creek issue makes one wonder if the Council was aware of Mr. Atkins financial situation when they voted unanimously to annex the Richland Rd tract. Did City Staff withhold information that would have changed the Councils vote to annex the tract...which they thought was a "new model" for development?

(Report Comment)
Chris Cady December 21, 2010 | 4:02 p.m.

Paul Love wrote: "I've got a news flash for those of you out there. Missouri soil has a high clay content and doesnt' retain water well. Even if Mr. Midkiff could convince everyone to live in earthen burrows dug with their bare hands we will still experience "flashiness" because with Missouri's clay soils sure as the rain falls the river will rise."

This is incorrect because of the term 'retain water WELL.' The stormwater regulations we have now (you know, the ones that were waived for the IBM building) require the site to be at pre-development runoff levels - not zero. C'mon man, everyone knows some water runs off and the river rises when it rains. Point is it's way more when the soil is compacted or covered with concrete. Simple as that. So stop trying to suggest it's all natural and can't be fixed.

And what about the pollutants? I suppose caffeine and motor oil in the runoff are natural too?

(Report Comment)
Glenn Rice December 22, 2010 | 8:38 a.m.

What's Shorr doing representing the City on stormwater matters anyway? Although he seems well-versed on these issues (as former director of the DNR, etc.), he also has a major conflict of interest, in that his firm represents the Central MO Development Council, the mouthpiece for the regional development community -- not at all known for their concern for water quality. Who exactly is Shorr working for? Not the citizens of Columbia, or residents of the Hinkson watershed.

(Report Comment)
Paul Love December 22, 2010 | 12:43 p.m.

@Chris Cady,

"And what about the pollutants? I suppose caffeine and motor oil in the runoff are natural too?"

Well I suppose thats sort of my point. The EPA doesn't care about those. No pollutant complaints at all, they don't have any complaints about the oil, the hormone from birth control pills, or the meat we eat, no complaints about trace toxic minerals leaking into the stream from our rechargeable batteries. Nope no complaints about that at all, just the volume of the runoff. If we want to complain about the rate at which water released into the stream then angle the storm drains up stream so that the water must then reach zero velocity with respect to the stream before it runs down stream.

The problem can't be erosion of the soil in a paved parking lot as we have all mentioned it is paved. So is the question the errosion of the banks of the stream? If it is I assure you its completely natural for the banks of a stream to erode until the stream is large enough to contain the water during peak flows. If you doubt me visit the desert southwest some time. There are creeks and streambeds bone dry most of the year and yet the have reached their size and depth to handle the flow during the once or twice a year or sometimes even every other year thunderstorms.

Once again I tell you its not pollution you are complaining about. Its the desire to enforce the nice neat tiddy and incorrect version of what natural really is. Before we decided that the Mississippi was to untidy and we chained it down it flooded every year and often moved miles east or west durring heavy storms. The EPA isn't "saving" nature what they are doing is regulating the flow of water into the river they have chained down in steel and concrete, with levies and breakwaters. Please don't use the innocent excuse you are acting to save the environment. What you are really doing is simply slaving the environment. Talk about real environmental damage how about chaining thousands of miles of river just to make your transportation easier.

Or you can live free burn your home and use those hands on the end of your arms to dig your own dirt burrow, enhance the rainwater absorbtion in your yard by removing all those structures. I will have to ask you to save your pee in a jar though unless or until you have a discharge permit for that :(

(Report Comment)
Paul Allaire December 22, 2010 | 1:57 p.m.


There are many homes in Missouri that were built long ago and were not flooded until recently. Many of those same homes then flooded repeatedly afterward. Nothing about the home had changed. What had changed is the runoff characteristic of the land in the watershed above the home. The government has bought out many of those homes with your tax dollars. Other homes continue to flood.

There is also an issue about the character of the stream through which the additional runoff is channeled. There is an issue about the purity of the water and the sustainability of the wildlife. Any one of these is beyond the scope of the article and we could easily write a book on the subject. Your attempts to simplify matters with a couple of well timed "nope"s only highlights the partisan nature of your position and the fact that the disregard of nature is part of your nature.

(Report Comment)
Mark Foecking December 23, 2010 | 8:35 a.m.

Paul Love wrote:

"So is the question the errosion of the banks of the stream?"

Not so much under circumstances of natural runoff. The problem comes when you replace grass, brush, and trees with concrete and metal.

The way they typically fight "flashiness" is with retention ponds. Some even have "first-tenth separators" which are designed to divert or capture the first tenth of an inch of rain, which is the dirtiest. However, these facilities take land, and one of the problems that Flat Branch creek has is that all of downtown and some of MU drain into it without any holdup whatever.

This alone can impair a stream, with no other action from pollutants. The problem becomes the expense of impounding large amounts of water, and if you separate the first tenth, what do you do with that? The sewage plant can't accept it without overloading, and evaporation in a shallow pond leaves a sludge that must be disposed of.

So any action has to take into account the current level of impairment (which seems to be controversial), the expected improvement, and the cost of doing that. We may have to accept a certain level of impairment because we can't afford to improve it significantly.

Just incidentally, I doubt anyone has ever documented impairment of any aquatic life from caffeine in any surface waters. The fact that it's there doesn't mean it's harmful. Motor oil, sure.

The fact the pollutants remain unknown bothers me for no other reason than we should know if the action we take is likely to solve the problem. If we focus on treating stormwater from roads and parking lots ($$$)^$, we may find that it hasn't helped, because the pollutant(s) causing the impairment was coming from another source. We should not commit to a course of action without knowing where we are going.


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