January 6, 2011
Ken Midkiff

Tempest about a TMDL
by Ken Midkiff
Conservation Chair, Osage Group, Sierra Club

(Update: February 8, 2011 - At the end of January the EPA made its final ruling on Hinkson Creek, calling for a 39.6% reduction in runoff water flowing into the creek. See this article for more detailed information.)

Way back in 1999, the American Canoe Association and Sierra Club (the plaintiffs) sued the US Environmental Protection Agency (USEPA) for failure to cause the Missouri Department of Natural Resources (MDNR) to do Total Maximum Daily Load (TMDL) studies of 174 streams on the Impaired Waterbodies List (aka 303(d) List). The USEPA settled with the ACA and Sierra Club and memorialized the settlement agreement in federal court in 2001. That case, now known as American Canoe Association et al v. EPA, gave two deadlines: MDNR was to complete all 174 TMDLs by December 31, 2009, and failing to do so, the USEPA had one more year to do what MDNR had not done.

Around the middle of December 2010, all but three TMDLs had been finalized (or “established” in the language of the federal court). EPA wanted an extension of the deadline for those three, and the plaintiffs agreed to grant an additional 31 days. The TMDLs for Pierson and Wilson creeks in Greene County and Hinkson Creek in Boone County are now set to be finalized by January 31, 2011.

For those not familiar with a Total Daily Maximum Load, on the surface it is relatively simple: Total Daily Maximum Load or TMDL is the amount of pollution (or “load” of pollution) a waterbody can receive without exceeding the standards for its designated and beneficial uses. According to the federal Clean Water Act, all water bodies must support aquatic life, recreation in and on the water, and fish (and shellfish) must be safe to eat. A TMDL is an extensive, almost exhaustive, study done to define the waterbody’s terrain, examine sources of pollution, and recommend changes.

The TMDLs for Pierson and Wilson creeks in Greene County (which also call for storm water reduction) have hardly resulted in more than a raised eyebrow or two. There is no controversy around these two streams.

Not so with Hinkson Creek. Controversy has swirled around each and every TMDL study conducted. The center of the controversy is that Hinkson Creek is impaired in that it does not support the expected range of aquatic life, due to “unknown pollutants”. MDNR, and now USEPA, have adopted “storm water runoff” as a surrogate for these unknown pollutants.

Immediately upon issuance of a TMDL by MDNR, the Central Missouri Development Council (an organization representing developers), the County of Boone, the City of Columbia, and the University of Missouri-Columbia whined, moaned, and cried. The focus of their venting was that MDNR’s TMDL called for a reduction of storm water runoff by 65%. Bowing to pressure, MDNR backed off and withdrew the TMDL, but later released another one calling for a reduction of storm water runoff by 50.1%. Same reaction, so MDNR essentially gave up and punted to USEPA.

The USEPA used most of MDNR’s TMDL information, but came up with a different model for calculating the daily load, and the current TMDL calls for a reduction of storm water runoff by 39.6%.

While Columbia, Boone County, and UMC reacted to this as if someone had stuck a cattle prod into their backs, the Osage Group of the Sierra Club (the local group of the Missouri Chapter) has consistently and adamantly supported first MDNR’s TMDL and now, USEPA’s. To state that this has garnered media attention is almost an understatement. Columbia has two daily newspapers, two weekly tabloids, a myriad of online newsletters, four television stations (NBC, ABC, CBS and Fox) and at least 5 radio stations. The newspapers – the Tribune and the Missourian – set the pace by featuring the Hinkson Creek TMDL controversy on the front page above the fold (“Page 1A”) on an almost daily basis. All of the other media followed. There have been many radio and TV articles, much coverage in online newsletters, and one weekly – the Columbia Business Times – continues to carry the story.

The opponents of the USEPA’s TMDL state (among many other things):

-Compliance will cost up to $300 million.
-A retention basin will need to be constructed that is one foot deep and 820 acres ((a bit more that a square mile).
-The TMDL is based on outdated information; Hinkson Creek is much better than it was in 2006 (the age of the data).
-That a reduction in storm water runoff will result in more, not less, pollution.
-Development in the watershed of Hinkson Creek will be halted, resulting in a movement to other watersheds.

The Sierra Club Osage Group has responded:

-The cost information is based on Potash Creek in Vermont, which used the most expensive methods of reducing storm water runoff. There are many other projects from Seattle, WA, to Ocala, FL, which reduced storm water runoff significantly at a fraction of the costs cited.
-Many small retention basins – including personal rain gardens – could be constructed rather than a huge lake.
-Current data shows that Hinkson Creek is getting worse, not better.
-It is silly to assert that watersheds in outlying areas will become the target of developers and retail outlets. It is most unlikely that Perche Creek valley or the Bonne Femme watershed (the two watersheds closest to Columbia, but still several miles away) will become saturated with subdivisions and malls.

In researching why it is that the City of Columbia is so opposed to the USEPA’s TMDL, it was inadvertently discovered that the City Manager and his staff had made this decision, usurping the authority of the City Council. This also became the subject of several news stories. The Mayor – Bob McDavid – who had sent a letter on City of Columbia stationary stating that the City opposed the TMDL (without any vote or even knowledge of the City Council), relented and held a hearing at the City Council meeting of January 3, 2011, on the TMDL matter and asked the City Council to support and endorse the comments made by Attorney David Shorr (who also became embroiled in this, as no document exists that authorizes him to represent the City of Columbia).

While the vote to support David Shorr’s comments received a 5-2 vote by the Council, the issue turned from the TMDL to whether or not the City Manager and the Mayor were establishing positions that only the City Council should do.

At this point, the arguing goes on. But, one thing is clear: the USEPA will issue a TMDL by January 31, 2011, and it is likely to contain requirements that the City, Boone County, and UMC won’t like.