Keller Shaft, Mammoth Cave National Park

Keller Shaft, Mammoth Cave National Park
Keller Shaft, Mammoth Cave National Park, Photo by Roger Brucker

Sunday, November 27, 2011

Chapter I: Finding out what's going on

I. Discovery: Finding out what’s going on

A.  Defining the problem
Karst and cave problems fall into two main classes: 1. Somebody plans to do something that will adversely affect a cave, such as dump trash into a sinkhole and kill endangered cave species, or build a structure on top of a cave that will cut off the natural drainage and risk collapse of the cave roof;  or 2. Somebody is planning a development atop a cave that is regarded by the developer simply as an impediment to the project, because it might lead to flooding during heavy rains, possible structural instability, and the potential for expensive repairs.

These problems, while connected by the natural characteristics of caves and sinkholes, require different strategies of the first karst responders. Where the cave itself is threatened, responders should support environmental conservation.  Where the development itself is at risk, karst responders should support safe development and avoidance of economic loss.

In the first case, the message to those threatening the cave is, “You are going to wreck the cave”; in the second, “The cave is going to wreck your project.”  In some cases both may be true.

It is important from the outset to be sure which kind of problem confronts the concerned public and the developer.  Cave defenders who do not understand the fundamental difference between these approaches may waste resources fighting the wrong battle.

1.  Who has the problem? To craft an effective response to a proposal for development on karst, canny cavers should start by asking, “Who has problems with this proposal and what are they?” For instance, XYZ Builders wants to locate a housing subdivision on the old Sinking Creek Farm south of town.  The multifamily condos will be laid out attractively with curved streets and the maximum density local zoning allows.  XYZ Builders has already invested in the plan, and held discussions with the bank. The only public notice may be an agenda item for the Planning Board.  Cavers and their allies know that Sinking Creek Farm is a karst area with many sinkholes and a significant cave and river beneath it.  Who has problems with this development? What are they?

The cavers know they have a problem – their cave and its river are under threat from pollution and disturbance. Others also have a problem: the developer, planning officials, state and federal water protection agencies, the bank, insurance company, and future home buyers. What is their problem? They have purchased land that is going to collapse, be prone to flooding, and will require expensive mitigation to avoid environmental impacts offsite.

However, this second group is probably unaware that they have a problem! Usually, caves, their rivers and their sinkhole links to the surface are unknown to everyone except cavers. Only rarely are ordinances in place to protect karst and control development (see Appendix for information about karst ordinances). Since the cavers know they have a problem, they must investigate to find answers to important questions about the proposed development.

2.  What is the project timetable? Learn the urgency for decision or action.  Is the timetable one that will allow for prudent examination of the plan and site?  Or is the project on a fast track?  A slow and deliberate timetable may allow for education of all concerned.  A fast track project or “done deal” may sound the alarm for rapid response to buy time for careful consideration.

3.  Who has the decision-making authority? Identify the chain of decisions and approvals for the proposed project. That will lead you to the decision-making authority in each case.  Some decisions will be made sequentially, one following another.  Other decisions will be made in parallel.

For example, a conceptual plan including a site plan is needed for most projects.  These documents are submitted to a city or county planning agency for review and approval.  Six or eight sets of plans may be dispersed to various government departments, such as the zoning board, engineer, building inspector, utilities, bikeway committee, state or federal agencies many approvals will be needed for some projects.  These same documents may be circulated to lending institutions and investors for their approval.

When these plans reach the first public approval authority, you have a right to examine them. If you are denied access to the plans, this may be grounds for a legal challenge later, so document any refusals you encounter.

Whatever the project, investigate to understand and chart the detailed approval steps and to learn about the authorities who will issue rulings to move forward or to delay. As a taxpayer you have a right to repeatedly contact any and all public officials involved and ask for meetings or phone calls to clarify what’s going on, and to have them explain the process to you.

4.  What are their motives? Time is money. Most developers are motivated to move forward as quickly as possible and are well organized to approach approval authorities with most of the details completed.  Developers hate surprises, and most are resourceful enough to quickly overcome obstacles, such as approval delays. Caver inquiries may be dismissed with quick answers. Example: 

Concerned caver: “What will you do about the sinkholes on the site?”
Developer: “There are no sinkholes on the site, just mushy spots that we already filled in with rocks.”

Planning boards, zoning officials, permit reviewers, and engineers are motivated to see that the project will conform to land use and zoning ordinances, environmental regulations, and building codes.  Elected officials sometimes are motivated to assist any developer, and may be willing to cut corners. Getting re-elected can be a motive of some politicians. Bankers look for financial soundness, competence, and a track record.  They want to be sure their loans will be repaid.
The public has its own concerns: maintaining an assured clean water supply, not subsidizing commercial speculation with tax money, and desiring attractive surroundings. Individuals want public safety and uninterrupted services – police, fire, low taxes, snow removal, environmental stewardship, parks, and recreation.  Fairness and justice are motives for some segments of the public.

Money often trumps environmental quality and protection as a motive, so cave-saving appeals based on saving money and preventing economic loss most often gain more traction than conservation appeals.

5. What are the objectives of the differing parties? A project’s supporters want to get the work completed, be paid as quickly as possible and go to the next job. Any delay is seen as contrary to their objective and a potential loss of profit. This means that developers have a vested interest in getting rid of cave and karst related issues as swiftly as possible.  Cavers who seek further research or project changes are a developer’s enemies, and are often labeled as environmental extremists.

Government officials want to uphold the laws and procedures and to protect our air and water from degradation. However, developers know how to lobby these agencies with phone calls and courtesy visits. Over time, public agencies can fall into the trap of working with developers and excluding the public. This is not necessarily bad or immoral or illegal – it is the inevitable result of hard work by developers to make friends in the governmental departments that affect their projects.

The solution is simple, though a challenge for cavers and allies whose work is on a volunteer basis: Make your own courtesy visits and phone calls. Let the agencies know who you are and what your concerns are. Of course you may have to get tough, if a government agency seems to be working in cahoots with a developer. Bureaucrats may sometimes voice private off-the-record sympathy with friends of caves and karst, but for the record say, “Sorry, our hands are tied.”

When this happens, do not be drawn into secretive negotiations for quiet, behind-the-scenes deals – you will always end up compromised and silenced. Take the issue to the public, even if hurt feelings and broken friendships are the result. Public airing of government action/inaction is necessary to keep them honest, when the developer seems to be getting all the breaks.

6.  What obstacles must be overcome to achieve the goals of cave and karst protectors? Strategizing in cave and karst conservation means identifying all the obstacles to achieving the rapid response team’s goals, then planning to overcome each obstacle.  Formal obstacles can include missed procedural deadlines, a resulting lack of legal standing for your group, or a systematic public relations offensive by the development proponents.  Informal obstacles can include lack of funds to pay expenses, no local volunteers, apathy and inertia by local cavers and the community you thought would support your cause, and bias or wrongdoing by approval boards and agencies.

Each obstacle should be listed in a table followed by a column describing the resources, people, and legal assistance necessary to overcome it.  Where combinations of resources are required, list those.  When completed, the table will be useful for recruiting volunteers and professionals such as lawyers, scientists, and speakers.

7. FOIA and Open Records Requests – Obtaining the information you are entitled to: The records of public agencies such as federal, state, and municipal bodies are subject to disclosure to the public upon written request, submitted by mail, email, fax, or hand delivery.  Citizens do not need to explain why they want the information.  Under the federal Freedom of Information Act (FOIA), federal agencies, like the Federal Highway Administration and Environmental Protection Agency, are required to produce requested public records within 20 business days. 

Every federal agency website has a link explaining how and where to submit FOIA requests.  Every state has its own version of FOIA (variously called “Open Records Act” or “Public Disclosure Act” or comparable names) with different periods of time to respond (some, like Kentucky, are as short as 3 days).  State laws apply to not only state agencies, but also cities, counties, special government districts (e.g., water, sewer), and some quasi-governmental organizations (e.g., economic development).  Most State Attorney General websites have good explanations for citizens on how to use their state “FOIA” process and how to appeal rejections or delays in responding.

Under federal and state open records laws, the definition of “record” is extremely broad and includes hard copy and digital records in the possession of the government agency such as zoning and permit applications, permits, building plans, maps, letters, email, telephone logs, and meeting minutes.  A “reasonable fee” can be charged for records; citizens can tell agencies how much they are willing to spend without being consulted beforehand when they file their request. Certain records can be withheld, such as drafts and the details of archaeological sites. The exemption for “draft” records has often been misused to withhold reports in controversial cases.  

For example, you may become aware that the developer has had several conversations with the city engineer about his/her project. You may request notes, meeting reports, memoranda, and other records of those discussions. If the agency claims such communications and records are “private” or “sensitive,” you may have a right to appeal to the state and then consider a legal case of wrongdoing.  The purpose of open records laws and sunshine laws is so that public business is truly the public’s business. 

Sometimes public officials will deny access to the records or place onerous restrictions -- $1 per page copying fees – on the request.  Such stalling tactics are patently illegal but may be part of the intimidation used to get project opponents to go away discouraged.  This is why all opposing groups should retain an attorney or find one willing to provide pro bono services to represent them and advise them of their rights.
There are no magic words to open records requests.  You do not need to cite the law.   You have to be fairly clear about the type of records you want (e.g., memos, emails, applications) but you do not need to specify titles or dates of reports, etc.  You cannot, however, ask questions.  One of the more important items is to learn beforehand exactly whom to send it to, either by calling the agency or researching its website.  (A FOIA template is provided in the Appendices, item number 4.)

Like open records laws, there is a comparable open meetings law for the federal government and every state. A deplorable practice of some developers and government co-conspirators is holding secret meetings that are not advertised and documented, at which decisions are made. Such illegal meetings are what give rise to the phrase “done deal.”  When you encounter this practice it means the developers have declared war on their opponents and may not respond to reasonable arguments or appeals to legality. A call to the state Attorney General office and, as needed, legal challenges may be the only option for effective response when opponents are excluded from meetings and discussions.

8.  Congressional inquiries, going to the top: A lesser-known way to obtain authoritative information about federal cases is to write a letter of inquiry to your Congressperson or Senator.  (Faxing a letter to your Congressperson’s office in Washington, D.C. will get there more quickly than U.S. mail or email.)  Make sure you frame your letter as a request for specific information that can be answered by a federal agency.  The Congressperson upon receipt of your letter forwards it to the agency that can best answer the question.  Your letter arrives on the desk of an official who is well-enough placed to be able to command an answer promptly.  That answer will be forwarded to the Congressperson, who will forward the answers directly to you.

For example, you wish to know if the U.S. EPA has issued a FONSI (Finding of No Significant Impact) for XYZ Project, and if not, when do they expect to issue this document?  Your letter of inquiry should look like this:

            Hon. Steve Austria
            U.S. House of Representatives
            House Office Building
            Washington, DC, zip code

            Dear Representative Austria:

            I wish to know if the U.S. EPA has issued a FONSI for the XYZ project, Hardin County, KY.  If such a document has not been delivered, I would like the agency’s best estimate of when delivery might take place.  Thank you for your courtesy in searching for and reporting this information.
            John Q. Citizen
            123 Maple Street
            Anytown, OH 45433
B.  Constraints to taking swift remedial action
Constraints on your group’s ability to take effective action quickly are facts of life and cannot be ignored.  Some of these are listed below and may form very real limits on what remedies are possible, whether mitigation is practical, or whether a contemplated challenge is legal.  All constraints should be listed at the outset so that volunteers and professionals will have a realistic understanding of what is possible and what is not.

1.  Legal constraints: You will not be able to mount an effective legal action without having an aggressive, capable attorney willing to file motions, trigger hearings, and object to questionable behavior. See details below on when you need an attorney, and how to find one, under IV. Two-way communications.

2. Educational constraints: Generally your cause will have an educational constraint, meaning that to arouse public sympathy and concern, you must educate the public on karst terminology and processes, why caves and underground rivers are of value, and why the proposed development is harmful.  Ignorance is a constraint: confused or ignorant people accept authoritative pronouncements unless educated. The opponents will do their best to brainwash.  Cave and karst advocates must educate or abandon hope of winning.

A hypothetical example follows, loosely drawn from the Kentucky Transpark project. Note the pro-project points made by the county-level elected official, and the several different levels of response provided by the KEEP representative.

COUNTY JUDGE EXECUTIVE: “This project has been planned by technical and scientific experts to be a model of environmental best practice.  Its purpose is to bring 7,500 jobs and progress to our region.  Out-of-town opponents, who are not interested in jobs and progress, have raised emotional issues that are typical of tree-huggers.  They are not professional engineers, they do not care that our youth stay in the area and apply for the good paying jobs here at home. The opponents are free to speak, but all the experts say this is a safe and solid development so we are determined to go ahead and bring the many benefits to the good citizens of this region.

KarstEEP SPOKESMAN:  The proposed project is an effort to use public funds to build a private industrial park on sensitive karst terrain.  On economical grounds alone the project is a bad idea because there are already 700 acres of vacant zoned industrial land in Bowling Green, KY.

Karst landscapes have three major problems: Structures collapse when caves and sinkholes open suddenly, areas flood because the so-called natural drainage through sinkholes is restricted and it backs up in heavy rains.  Furthermore karst land is easily contaminated when parking lots and accidental spills enter the ground water through sinkholes. 

“The developers will tell you they plan to avoid, prevent, or mitigate all karst hazards.  The past record of Bowling Green in polluting the karst groundwater is ample evidence that more of the same can be expected at the Transpark. 

“There is even a threat to the Tier III groundwater basin in nearby Mammoth Cave National Park. Separate low water drainage basins have been identified, but in high water the overflow spills over or leaks into adjacent drainage basins. Karst drainage basin boundary migration is a fact. Toxic spills can be catastrophic in karst, and pump and treat techniques do not work.  The project inflicts environmental injustice, social injustice, and economic injustice on the region and it should be abandoned.”

The arguments and information summarized above were developed over a two-year time span, in opposition to the proposed development of an airport, trucking center and heavy industry park above karst rivers. This example shows that, as part of educational readiness, karst responders must be prepared to counter gross distortions of fact made by opponents with a robust information and outreach campaign.  While we often wish that the simple scientific truth were adequate to offset the distortions, sometimes stronger, blunt truth must be part of the educational package.

In another example, supporters of locating the regional sewage plant on a karst floodplain asserted the following:

SUPPORTERS: “The site is above the U.S. Corps of Engineers official 100 year floodplain, so it won’t ever be flooded.”

OPPONENTS: “Fact: The location floods every year or two and here are photos and video to prove it. The U.S. Corps of Engineers never inspected the site.  Rather, they traced around an arbitrary contour line on the topographic map while sitting at a computer in a distant office. Flooding is likely to upset the plant and send the contents of raw sewage into the Elk River. All sewage treatment plants overflow from time to time. Threats to wildlife are real and cannot be prevented.”

Karst rapid responders must always explain the consequences of the risks they cite, not leave it up to the imagination. Seize every opportunity to educate fully. For example, don’t say this:

“The cave contains endangered Indiana bats.”

Instead, say this:

“The caves contain federally endangered Indiana bats and the U.S. Fish & Wildlife Service is investigating.  Furthermore, this project is likely to trigger expensive challenges if and when the bats are harmed.”

Finally, continuous education is required for an effective karst threat response. You can’t just put out a press release or hold a public forum and assume that folks are now fully informed. Most people are not paying attention most of the time, and need to be repeatedly told and reminded of your basic message and facts. It will be useful to place all educational materials on your Web site so reporters and citizens can be referred there for further information.

Always remember: The audience is a passing parade, not an auditorium full of people. You must continue to educate long after you are tired of teaching the facts and truth.  Second, always provide facts in layers so that those who want to know more can drill down to find detailed information.  Developers will seldom if ever provide information beyond their initial public relations releases.

3.  Hydrogeologic constraints:  Karst lands and caves have certain irrefutable constraints on their safe use that karst protectors need to understand and publicize. 

First, karst is an erosional feature.  Karst landscapes are undergoing disintegration, they can be slightly to extremely unstable, and they are full of unexpected surprises such as rapid flooding or area-wide groundwater contamination. Lakes in Florida and Kentucky karst areas have drained overnight or in a few days when the sinkhole mud washed out, destroying scenic landscapes

Second, groundwater can be traced successfully through karst conduits under some circumstances but not under all circumstances. Systematic dye tracing methods are employed by hydrogeologists to learn the destination of spring flows.  Harmless dye agents are placed in sinkholes or sinking creeks and charcoal traps are placed in all likely groundwater discharge points.  Traces of the dye many be found through laboratory analysis indicating a subterranean connection and possibly some indication of the transit time.  In Missouri, dye tracing detected that a dry cleaning plant 35 miles away from a spring was illegally dumping perchlorate solvent into a sinkhole. 

Karst low water drainage basins can be determined by systematic hydrology studies.  However, in times of heavy rains, runoff water may overwhelm the underground conduits and cause them to overflow into adjacent groundwater basins. Cross-basin spillover or leakage is common in karst areas, since the underground river system is continually adjusting itself downward and sometimes abandoning upper level drainage conduits (caves).  In times of flood, water rises in the underground system and flows through these little-used conduits, remobilizing sediments that sometimes contain contaminants such as gasoline and other chemicals. These toxins can be carried downstream, emerging into springs and wells used for drinking water, farming, and recreation.

In your efforts to respond to karst threats you may need to enlist the aid of a hydrogeologist to establish the facts of karst drainage in the area under consideration. Scientists are better at authoritative explaining than non-scientists. When scientists are ignored, real problems may soon result. (In the Appendices, see item number 5, “The Scientific Method: Model for clear thinking under pressure from opponents”)

4.  Physical constraints:  Several cities have proposed to place airports on karst sinkhole plains.  Contractors often claim it is easy to fill sinkholes with a truckload or two of rocks.  However, sinkholes continually open up, swallowing the rocks and requiring expensive “remediation.”  Ignore Karst, Build Now, Fix Later.

In Bowling Green Kentucky, a consultant warned that a proposed road would pass over a collapse dome in a cave, as revealed by a map of the cave.  The developer did not like the consultant’s recommendation to curve the road to avoid the cave because it would yield fewer lots.  The developer routed the road directly over the area of vulnerability.  One day the road collapsed into the cave.  It required $1 million of taxpayer money to repair the road, and the shortsighted repair may have set up conditions for a further disaster later. 

Perhaps the most expensive physical problems result from failure by a developer to perform adequate subsurface investigations ahead of time.  Federal building contracts require core drilling to avoid foundation problems with the site.  A contractor’s shortcut is to drill to “auger refusal,” a technical term that means when rock is struck the drilling stops.  In karst areas it is a large mistake to accept simple auger refusal studies, because rocks in karst areas are often floating erosional remnants, not bedrock.

These remnants may be surrounded by cavernous voids, creating an unstable base for construction that can lead to subsidence or collapse.  Technical terms like “cutters” and “grikes” describe karst limestone features that may lurk beneath the surface and masquerade as bedrock.  The University of Kentucky had to spend a lot of time and money investigating  the subsurface of the site chosen for its new library, when it was discovered that part of the building required pilings to support it over a cave. Any development sited in karst with inadequate site geophysical investigation is a candidate for nasty, costly surprises.

5. Topographical constraints: In a karst area, you cannot assume that the underground drainage and structure are mirrored by the surface topography.  Caves may extend under hills, beside hills, under valleys, and beside valleys.  Developers may argue that their karst site is far from the river and therefore immune to flooding.  They may be catastrophically wrong.  Flooding is a frequent problem in karst areas because, although caves enlarge and adjust to average drainage conditions through geologic time, maximum rainfall events can overwhelm an “average” drainage system. When this happens, excess water pours up and out of sinkholes across the surface and can flood a neighborhood quickly and stay a long time, as happened in a karst area in northern Ohio.

6.  Resource constraints.  A primary constraint will be money.  An organization will need funds to set up a Web site, publish brochures, hold meetings, and hire experts such as lawyers or environmental consultants.

Fundraising for rapid response
The outline below will be fully developed in the next draft. Suggestions welcome.

1. Realize up front that you will need money, and start planning for a war chest from the very first. You can’t rely for long on free expert advice and pro bono legal help.

2. Short term
  1. Typical initial costs that will arise and how to cover them:
  • Find a patron for the first $1000, that will get you a Web site, a 501-c-3, a PowerPoint, and form letter mailed out, asking for contributions (8 Rivers sent the form letter and a long news release to 15 or 20 grottoes -- and got donations from most).

  1. Partnering with a larger organization while you get your act together:

  1. Incorporating within your state as a first step:

  1. First steps to developing a small, core membership/donor base:
  • Send the form letter for a second year. Keep asking as you have news to report. Set up a secure contribution page on your Web site.
  • Ask affinity organizations to publicize your cause. (Eight Rivers talked to several fishing clubs and got a feature article written by one writer and a big donation from a second organization.)
  • Prepare and present programs, and always ask for contributions – Eight Rivers has a basic PowerPoint plus a beauty PowerPoint. We have used it many times in many places, and sometimes received contributions.

3. Medium term:
  1. Obtain fundraising/strategic planning training - River Network, KEEP, other groups.

  1. The myth of the native son or daughter as celebrity donor.

  1. Respectfully seeking other, more realistic, local deep pockets.

4. Long term:
  1. Pros and cons of becoming a 501 c 3 nonprofit charitable organization.

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