KWA recruiting in Beargrass Creek:

Badwaterjournal considers watershed relationships and water quality outcomes

© 2011 Clarence Hixson

Kentucky Waterways Alliance which aims to be, “the advocate and voice for clean water in Kentucky,” speaks with the same voice that once led the Louisville Metropolitan Sewer District MSD, as its Executive Director, for 18 years.

Gordon Garner, left  MSD in 2002, but then became a Vice President with the wastewater  engineering and consulting firm, CH2MHill, that has a long history of consulting contracts with MSD in Louisville. 

Now, after decades of running a major sewer agency, and  professionally consulting on Clean Water Act compliance for municipal and industrial clients, Garner is presenting himself as an environmental group leader. Does his history make him the perfect “grassroots” group leader?

KWA purports to be a “grassroots” organization of clean water advocates. (See the Beargrass Alliance webpage) KWA projects an image of independent leadership focused on protecting waterways. KWA has become a dominant force in watershed activism in Kentucky. Their growing budget  now supports several paid staffers and two state offices. They have developed an increasingly sophisticated media outreach and organizing program, that would be the envy of any citizen volunteer group. This growing media presence and watershed organizing effort will harness thousands of hours of volunteer time to a watershed agenda. 

KWA historically functioned as a conduit for CWA Section 319 grants and “mini-grants” provided by federal funds given to the Kentucky  Division of Water.  After hundreds of thousands of state grant funds coming through KWA, they appear to be diversifying their funding through media outreach. Can this group, with its history be considered “grassroots”? Is the leadership of KWA too connected to the power players in the watershed to set an effective agenda in Beargrass Creek?

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The author was a member of KWA and edited the newsletter in 1997-1998. He broke with the group when they partnered with MSD. In 2007 he represented the Floyds Fork Environmental Association in an Open Meetings lawsuit against KWA and other stakeholders in a watershed plan.

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Watershed players

KWA has announced its formation of a new “grassroots” group– the Beargrass Creek Alliance. KWA is asserting its leadership role in organizing local residents to agree upon a watershed plan for Beargrass Creek. The plan would set forth priority projects for reducing pollution and near and longterm goals for cleaning up the creek. The creek is a classic example of an urban pollution impacted stream in a highly developed watershed.

The watershed is traversed by multiple high traffic corridors contributing automotive pollution of metals and chemicals. The low lying creek branches have sewer pipes running along their lengths that conduct sewage flow in dry weather to the Buchanan Street sewage pump station in Butchertown and then to the Morris Forman treatment plant in the West end off Algonquin Avenue. There are about 105 Combined Sewer Overflows that overflow in a range of wet weather events. Very little sewage reaches the treatment plant from the Beargrass Creek system when the plant is overflowing in wet weather.

The same overflowing sewers are transporting industrial sewage from multiple industrial dischargers. These dischargers are under contract with MSD which agrees to accept and treat their wastewater as part of the Pretreatment program. Industrial dischargers, commercial developers, residents and regulators have some interest in continuing use of the land and sewer system that is killing Beargrass Creek.

So, the players in this watershed are:

1. 1)The sewer company leadership, MSD that designs, builds and runs the combined sewer system;
   

2. 2)The industrial corporations that contract with MSD for treatment in the watershed;
   

Beargrass Creek Watershed Action Plan Core Group Meeting Minutes

December 17, 2002 1 pm to 3 pm

MSD Conference Room 3064

Called by MSD

 

Attendees:

Ken Machtolff, citizen

Mike Lighthiser, Biohabitats

Angela Kessans, Ky. Division of Water/University of Kentucky

Judy Petersen, Kentucky Waterways Alliance (KWA)

Kurt Mason, USDA Natural Resources Conservation Service

Gordon Garner

Louisville Metropolitan Sewer District (MSD) – Angela Akridge, Patti Grace-Jarrett, Derek Guthrie, Vicki Coombs

MSD Consultants – Chuck Flink, Greenways Inc.; Brian Bingham, Tetra Tech; Ward Wilson, O’Brien & Gere Engineers

 Invitees that could not attend:

Phyllis Croce, Loyiso Melisizwe, Randy Stambaugh - MSD

Jeff Jack, University of Louisville

Dave Hulefeld, Louisville-Jefferson County Dept. of Planning and Development

Bruce Scott, KWA

The meeting was called to discuss the status of plans to develop a Watershed Action Plan for the Beargrass Creek watershed.  This group has been extensively involved in water quality initiatives in the area, such as the Beargrass Creek Task Force, Salt River Watershed Watch, and various citizen groups.  The watershed planning effort began nearly a year ago with small group discussions and has continued through today.

The meeting began with a welcome by Chuck Flink, facilitator, and introductions by each person.  Mr. Flink stated our common purpose of developing a Beargrass Creek Watershed Action Plan, while acknowledging that each may have a different path to that goal. There is an objective to launch a formal community-wide Watershed Action Plan effort in September 2003.  The floor was opened to comments from the group about the process.

Mike Lighthiser – meetings in early spring this year seemed to be going in a particular direction, later a second track developed, the two tracks didn’t merge, they “crashed” - the agenda changed and he felt that the group was being “told what they were.”

Kurt Mason – as part of the Beargrass Creek Task Force, he was part of the first discussions about a watershed plan with Gordon Garner and Bruce Scott.  There was a vision of a holistic watershed management effort.  MSD would support the effort with its resources as “a gift to the community.”  Community needs would be the focus, no group/agency would have complete control.  Earlier meetings in this room went well, meetings on first floor were more MSD dominated.   He likes this meeting location and group makeup – MSD is present, but not the majority.

Ken Machtolff – felt left out of meetings downstairs.

Gordon Garner – speaking as former MSD director, part of the early planning process, and now citizen with some existing ties to MSD on this issue: MSD’s intent was to make this a community plan, but MSD has regulatory obligations and program deadlines that are associated with this watershed and that must be satisfied.  Water quality issues and concerns should be “on the table.”  The intent was that this would be a citizen-driven plan.

Chuck Flink – MSD did not forget the intent.  Consultants to the Wet Weather Water Quality Program were helping with specific items, such as Trevor Clements of Tetra Tech with specialty in watershed planning.

Gordon Garner – the environmental community was to have the first seat at the table, the product (plan) was to be formally approved by city government.

Angela Kessans – described the Division of Water Watershed Framework and development of a Salt River Watershed Plan.  Provided a Programmatic Basin Plan Outline document (attached here).

Judy Petersen – the program needs to be developed to some extent before presenting to the community at large, but it should not be presented as a complete product (not a “done deal”).  The group needs to be open to changes in the plan.

Chuck Flink – we plan a process that begins with a small working group that prepares a presentation to the community (plan to do a plan).  The elements of the process are:

1)      Stakeholder Identification – core group will complete the list, invite stakeholders to meet, educate the group, hold discussions, and develop materials and a process to prepare a Watershed Action Plan.

2)      Education and Communication – core group will develop a strategy and products (videos, brochures, events, etc.) that will educate the public; implement marketing and communications program.

3. 3)     Technical Issues – identify resources, then characterize and classify watershed features, then develop products that will make highly technical information understandable; technical resources will provide support to all parts of the planning process.
   

Mr. Flink asked the group to comment on this proposed approach and several agreed that this would be a good framework.  Gordon Garner added that priorities must be included.  Mr. Flink reiterated that there is a 9-month timeframe – deadline is September 2003.

There was a discussion of the definition of stakeholders.  In the proposed process, stakeholders will be groups that represent persons and organizations already involved with Beargrass Creek, rather than the general public.

Each of the areas listed above will be implemented by a committee.  Core group members were asked to choose a committee to be a primary focus.  MSD and its consultants will provide support and resources to all the committees.  The committee members are:

1)      Stakeholders:  Kurt Mason, Judy Petersen, Phyllis Croce

2)      Education:  Angela Kessans, Gordon Garner, Vicki Coombs, Phyllis Croce

3)      Technical:  Bruce Scott, Ken Machtolff, Mike Lighthiser, Patti Grace-Jarrett

Jeff Jack and Dave Hulefeld will be asked to select a committee preference.  It was recommended that an interactive Web site be developed to help the core group share information and communicate.

The group will meet monthly at 1 pm for two to three hours in conference room 3064 at the MSD main office building on the last Wednesday of each month (with some exceptions).  The meetings will be results-oriented.

1)      January 29, 2003

2)      February 26, 2003

3)      March 26, 2003

4)      April 23, 2003 (fourth, not last Wednesday)

5)      May 28, 2003

6)      June 25, 2003

7)      July 30, 2003

8)      August 27, 2003

9)      September 24, 2003

Gordon Garner mentioned that he expected that the new Metro Government would support this effort.  He would like to contact those in the new administration on behalf of the group.

Judy Petersen mentioned that she would be meeting with Lee Colten of the Kentucky Division of Water tomorrow.  They will be discussing plans to apply for grant funding for watershed efforts in the Salt and Licking River basins.  She will recommend that a grant be requested for the Beargrass Creek Watershed Action Plan effort, perhaps for $40,000 to $50,000, to be available in 2004.  Funding would be administered by KWA, but they would welcome partners from the agencies at this meeting.   Ms. Petersen will provide this group with the grant application and updates on its status.

Angela Kessans asked whether this plan would be a one-time effort or be updated.  Several in the group agreed that it should be an ongoing effort, continually updated.  Gordon Garner believes that the Watershed Action Plan should be “owned” by a stakeholder group.

Meeting minutes, contact list, current stakeholder list, and a proposed matrix of tasks will be distributed to the core group by MSD.

During the absence of Phyllis Croce, group members should contact Ward Wilson with comments and questions.  See attached contact list for address, phone, etc.

ACTION ITEMS[IS1]

1.Group members will review the stakeholder list and come to the January 29 meeting with recommendations for additions/deletions.

2.MSD consultant Mo Better Marketing will come to the next meeting with ideas for the strategic communication/community education plan.

3. 3.Patti Grace-Jarrett will present a status of current technical activities at the January meeting.  
   

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The reason the citizen is even consulted by Players 1-4, as they pave over, put roads through and discharge wastewater, is because Congress made a law requiring it. This great idea made law back in the 1970s, has ever since been the burr under the saddle for Players 1-4. Congress intended to use citizen whistle blowers as a balance against economic resource exploitation that led to serious pollution. History showed the business and industrial interests would quickly corrupt the regulators charged with limiting them, so Congress reached outside the box and tapped local residents to play a powerful balancing role.

Congress authorized standing for citizen lawsuits to enforce Clean water Act rules in the state and federal courts. Congress ordered local agencies to produce timely information to support the public role in environmental decision making and required advance notice of alternatives to support meaningful participation. 

Almost immediately, self interest prodded 1-4 to try and reduce the public role and neutralize its effect.  Predictably, when the public is kept in the dark, it cannot form the political pressure to balance industrial self interests and catastrophe happens. 

In February 1981, an industrial discharger  Ralston Purina, discharged hexane to the sewer system which exploded and blew up 2 miles of downtown streets, launching manhole covers like missiles. How many industrial dischargers are there today on the overflowing Beargrass Creek sewer system? What chemicals overflow in wet weather? Few Beargrass watershed residents know the answer.

One of the watershed activist’s duties under the CWA scheme is to obtain critical facts the 1-4 players would rather not be made public and transmit them to the general public to prompt protest and action–to make an issue of it.

The Players and their interests

A sewer operator is paid a huge salary to run a multi-million dollar sewer utility. Millions of rate payer and bond dollars form the pool he uses to hire consultants and pay construction firms to build or fix the system. He is constantly spending millions of dollars in the watershed. During the 80s and 90s, MSD focused on building new sewers as the city developed and connecting them to the overflowing and undercapacity system. It is a fact that expenditures to increase treatment capacity are dollars not available to grow the collection system. In 2005 the EPA sued MSD and a consent decree ordered the agency to spend more on mitigating sewer overflow pollution and treating the sewage.

The MSD Board members are appointed by the Metro Mayor and serve as little more than a rubberstamp group that ratifies decisions made by the planning engineers working with business interests. See MSD webpage. The MSD Board cannot play the independent investigator role of the citizen watershed activist.

Industrial dischargers are paying huge rates to MSD to accept and treat their wastewater flows and  in the political arena they lobby and contribute dollars to state and local politicians to reduce regulation. Trade associations and Chambers of Commerce groups, and even the Kentucky Legislature exert tremendous clout against strict enforcement of CWA laws. Lax enforcement is a politicians stock in trade though the flow of money is from exploiting and even ruining the environment. These interests arrive in watershed public consultation with a deregulation agenda. 

State administrative agencies are a hierarchical  command system with the power to deflect enforcement, delay monitoring or planning and hire and fire in the hands of top political appointees.   The regulator from the state or federal agency has one eye canted at the sky looking for a boulder to drop on him for being anti-business, or too tree hugger, “unrealistic” or excessively “command and control.” The regulator cannot stand against the political winds and cannot guarantee or sometimes even support meaningful citizen participation.

KWA’s watershed planning efforts included recruitment of very knowledgeable private contractors, hired with state money. KWA put, at the same table with local citizens, degreed professionals from engineering and wastewater backgrounds, sophisticated environmental educators funded by state and private grants, and trained staff members of the local government agencies like the Kentucky Division of Water. This was the ‘big table’ style used by EPA in the early 1990s in consultation efforts in such programs as the Nine Minimum Controls for CSOs.

In such circumstances, citizen watershed leaders looking for change looked lame. They lacked the technical understanding or political savvy to keep up. Most importantly, they weren’t paid to attend meeting after meeting where policy and action discussion came more firmly in the grip of sophisticates supported by self -interested cronies.

Local groups agenda to bring publicity to dirty water and dying animals, was diverted into conversations among watershed professionals using citizen coloration.  The professionals used the concerned citizens to give an appearance of compliance with public consultation laws, as they delivered support for the states polluter-permissive programs. The state agency watershed organizers served political taskmasters, under the Governor, who wanted  Kentucky open for business, not closed to more pollution because of dying streams.

Local watershed activism withered, and action issues went unremarked or unexplored. The vibrant public discussion that characterized the early days of citizen watershed activism was subsumed and displaced by the  watershed professionals.  

In December of 2002, a core group of such players began to meet to design a a strategy for managing public consultation in a Beargrass Creek Watershed Action Plan. See the attached minutes below.  

Guess who loses when the balancing forces in

Clean Water Act protection are subverted?

End runs around public consultation

The Clean Water Act citizen consultation rules empowering the public, were developed in response to terrific environmental catastrophes and the general worsening condition of our national waterways. The Cuyahoga River fire in 1969, the 1975 kepone poisoning of the James River, the 1976 discovery of toxic dumping in Love Canal neighborhood in New York, were failures of government that allowed poisoning of adults and children, slaughtered whole ecosystems, and destroyed local economies.

Citizen participation empowerment was designed to effectively break up the incestuous relationship that inevitably developed between industry and regulators. Long term education of the next generation and planting rain gardens may help eventually, but a more serious role was envisioned for the public that put them in the heart of wastewater discharge issues.

Goofing around with the serious duties of public consultation undermines the critical role that protects communities from disaster. Its on a par with falsifying water monitoring results, which has also become a problem in Kentucky. 

Real money and real environmental impacts are at stake when the public is led astray from performing that function of investigating what business and industry is doing in the watershed and attempting to break up the sweet heart deals handed out by co-opted regulators.. 

Over the 40 years since passage of the citizen consultation laws, a crop of paid consultants has appeared in watershed decision making The weaknesses of the public consultation role have been analyzed with an eye to exploitation.  By reframing, and redefining the public discourse, by redesignating watershed roles for the public, players 1-4 have sapped the energy from citizen groups, turned them against themselves and begun to suppress meaningful participation.

KWA and the power players

From 1994 to 1998, the KWA budget included awards of $248,000 dollars of federal EPA non-point source  pollution CWA Section 319 grants. In 1997, Judy Petersen began her 14 year stint as development director and later, Executive director of KWA. Judy was formerly an Ombudsmen in the Kentucky Cabinet for Environmental Protection.

As early as 1994, KWA announced a policy to become a conduit for CWA Section 319 grant funds to smaller groups. They prepared and handed out KWA Mini-Grant Resources materials laying out the ground rules for applying for Section 319 grants that KWA would administer as the fiduciary agent. KWA acted as intermediary between the state government grant administrators, and watershed groups. 

From 1997 forward, KWA’s action programs have been aimed at creating “watershed leadership” groups and attaching them to the Division of Water agenda of watershed planning. These five year planning cycles remove watershed activists from  raising political protest for immediate action, and bury participants energy into unpaid full time   committee pre-occupations. In 1997, KWA staff with fiduciary responsibility for Division of Water grant funds began to implement a Strategic Plan to “build a strong network of waterway groups; establish the KWA leadership role; and, improve KWA’s public visibility.” 

Using federal non-point source grant money, Kentucky built relationships and information database on water activists. The genius of this state funded organizing effort has several prongs:

1. 1)KWA redefined the independent citizen watershed activist role to include becoming involved in groups where players 1-4 sat at the same meeting table. The association dissolved the purely citizen membership of the independent activist groups --preventing them from formulating an independent agenda. The imbalance in training between agents and citizens transferred the leadership to professionals.
   

2. 2)KWA’s introduction to local groups as watershed leaders gave them access to membership lists and served to identify leaders in the watershed, those with the education and skills to play a significant citizen activist role.
   

3. 3)Local groups recruitment became KWA recruitment as KWA offered them mini-grants and attached them to Section 319 non-point source projects or watershed planning.
   

Statewide based KWA members were comfortable participating as select representatives of the local watershed siting next to the 1-4 players.  Judy Petersen contributed: “The program needs to be developed to some extent before presenting to the community at large.”

The Beargrass Creek Action plan is being formed and will be unrolled in KWA’s public outreach. In a system where some 8-9 billion gallons of sewer overflows poisons the receiving waters, the plan  will likely tilt towards voluntary citizen actions in reducing inflow through rain gardens, rain barrels and other “green infrastructure” projects.

There is no indication that KWA will insist upon a full disclosure and public dissemination of industrial wastewater dischargers and their overflows in wet weather, or demand that the Kentucky Department of Transportation stop killing the watershed with deicing salt applications that cause chloride  levels that poison groundwater and persist through summer months.  Where a citizen consultation occurs it will hear a perspective formed by a core group with participation of the 1-4 players who use the watershed for development and wastewater discharge. 

Watershed stakeholders have distinct roles of critical importance yet, not well understood. Watershed residents need to stay outside the fence, develop information, set aims and goals independently and present their demands for change in the public forum.

Because new permits to pollute are being granted by the state every week, and because the Clean Water Act laws are often transgressed and little defended, an agenda of environmental education of children, fun stream sampling activities, and Earth Day parades do not reach the immediate, crucial participation required of citizens in the watershed. Kentucky’s watershed misleaders are about protecting the right to pollute.

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