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Columbia Missourian

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

By Pavan Vangipuram
December 20, 2010 | 7:32 p.m. CST

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.

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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.