June 17, 2008

Muddy waters - A recent lawsuit rekindles questions of accountability in Floyds Fork

The April 15 legal appeal by the Floyds Fork Environmental Association, which had attempted to sue the Kentucky Waterways Alliance and other parties for violation of the Open Meetings Act, is an intriguing read. It lays forth a story of collusion among business and government bent on collecting federal funds for their own interests. Even the characters are compelling: the citizen group elbowed out of the oversight process through secret deals; the megalomaniacal government bully grasping for control; the questionable character playing both sides — all in the name of cleaning up a beloved but polluted waterway, Floyds Fork. 

The funds in question come from a $500,000 federal grant KWA secured in 2006 to help protect the Floyds Fork watershed from pollution, like runoff from roads and agricultural lands, that can’t be traced to a specific source. KWA opened an office in Louisville last year, and part of its mission for the past 15 years has been to help groups and governments establish watershed management plans. The lawsuit concerns its work in the Floyds Fork area, one of the final frontiers for development in the city, where groups from environmentalists to homebuilders to softball players have expressed strong interests in what happens to the land. 


Among them is FFEA, the plaintiff. Named as co-chair with KWA on the steering committee that oversees the grant, FFEA claims it found itself muscled out of the decision-making process for cleaning up its eponymous creek. The grievance filed in May was dismissed this month, but the allegations it leveled are troubling. 

“(FFEA’s) perception was that there was a lot of discussion going on in secret between other members of the committee, arriving at announced meetings with decisions already made,” said attorney Clarence Hixon. Those decisions included using $61,000 to hire an administrator and introducing a cap-and-trade system to manage pollution, similar to the one used in Europe to control carbon emissions. FFEA expected money to be spent on efforts like restoring vegetation along waterways to absorb runoff, or helping farmers with other mitigation practices. 

“Those were the kinds of projects they expected to discuss in this meeting, but it came around that MSD, which is a point source discharger, wanted to discuss buying credits from nonpoint source polluters,” Hixon said. Such an allowance would ostensibly be part of MSD’s continued efforts to improve the poor water quality that has earned it some $800 million in fines from the Environmental Protection Agency in recent years. 

In its motion to dismiss, KWA countered that FFEA, which is not named or referenced in the grant, has no authority to sue over a perceived lack of inclusion. Nor is KWA a public entity subject to the same expectations of openness. FFEA claims that KWA is controlled by state agencies and former state employees, and has undue influence from MSD and the state via Gordon Garner, who is a former MSD director and now vice chair of KWA’s board. Garner is also a governor’s appointee to the state Environmental Quality Commission. 

No one associated with KWA would speak directly about the case, but Garner said claims about his particular role are overblown. He said government money and influence are traditionally part of such watershed management plans.


Recent media reports have focused on how the lawsuit might threaten the cohesiveness of the steering committee, but skirt what is perhaps a more critical issue — oversight of green space in the “City of Parks.”

It’s a lesson the city seems bent on learning the hard way. Just a few weeks before the steering committee conflict became a legal battle, another Floyds Fork controversy had approached resolution. Metro government recently decided to review a deal it made last year with the private 21st Century Parks foundation, founded by Humana chairman and founder Dan Jones and his son. That the cash-strapped city embraced an opportunity to expand and improve the parks system is rare. But it chose to do so by allowing 21st Century Parks to “protect” 700 acres of public land forever, without requiring public meetings or even so much as a Post-it note that would inform the public about how decisions were made. It was unlikely that the land would have been managed in complete secrecy, but open records and open meetings laws are intended to make sure such issues aren’t left up to the altruism of the powers — or the dollars — that be. 

Anyone who had their backs up at the initial 21st Century Parks deal probably has chills running down their spines with the recent allegations of backroom land management: 21st Century Parks owns another 3,200 acres in the Floyds Fork area and is, as a result, part of the steering committee brought into question by FFEA. The dust has yet to settle on the FFEA lawsuit, but along with this connection, it is a reminder of the importance of accountability whenever public money is spent and public lands are involved. It can be especially important at times like these, when municipal resources are tight and cities must look for money that is increasingly held in private coffers. 


Contact the writer at

citystrobe@leoweekly.com