Showing posts with label Asian Carp. Show all posts
Showing posts with label Asian Carp. Show all posts

Thursday, February 17, 2011

Asian Carp Bill Offered In the U.S. House of Representatives

Today, Representative Dave Camp (R-Michigan) offered an amendment to the House budget bill that would have closed locks to prevent infiltration of the Asian carp into the Great Lakes.
Four representatives from Illinois, including Judy Biggert, a Republican, and Danny Davis, a Democrat, all spoke to oppose the amendment.  The basic arguments against the amendment were three-fold: (1) closing the locks would be a job killer and hurt the economy, (2) closing the locks may not keep Asian carp out of the Great Lakes, and (3) other methods, such as the electric barriers, should be tried first before going to the extreme step of closing the locks.  Rep. Camp argued that there is no time to be patient--the locks should be closed immediately.

On a voice vote, the Asian carp amendment to the budget bill was rejected.  Although a recorded vote was requested, further proceedings were tabled under the House rules.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Wednesday, January 5, 2011

Gov. Quinn Signs Order Establishing Illinois Coastal Management Program

Governor Pat Quinn recently signed an Executive Order establishing the Illinois Coastal Management Program within the Illinois Department of Natural Resources.  According to a DNR press release, "through the federally-funded program, Illinois will receive $2 million annually from the National Oceanic and Atmospheric Administration (NOAA) to improve the northeast Illinois economy and create jobs by protecting the state’s coastal resources along Lake Michigan. . . . The program will be fully funded with federal dollars, which will be used to restore threatened habitats and to 'green' harbors on Lake Michigan.  It will also help municipalities develop plans to restore and sustain shorelines.

"Some of the ICMP’s goals include: supporting local, state and federal partnerships as agencies work to manage coastal resources; developing strategies to mitigate and adapt to climate change; developing long-term solutions to address toxins and invasive species; working to expand the use of green infrastructure to control storm water, promoting groundwater recharge and reduce flooding; and helping communities identify opportunities for water-related economic development."

More information can be found on the Illinois Coastal Management Program's website.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Saturday, December 11, 2010

Federal Court Denies Motion to Immediately Close Locks to Prevent Infiltration of Asian Carp

The U.S. District Court for the Northern District of Illinois recently denied a motion for preliminary injunction in Michigan v. U.S. Army Corps of Engineers, Case No. 10-cv-04457, which is a case brought by five States to prevent the infiltration of Asian carp into the Great Lakes.  The plaintiffs' motion for preliminary injunction included a request to "temporarily clos[e] and ceas[e] operation of the locks at the O’Brien Lock and Dam and the Chicago River Controlling Works except as needed to protect public health and safety."

In a nutshell, the Court held that "Plaintiffs have not met the high burden necessary to obtain a mandatory preliminary injunction.  In the face of multi-agency efforts to prevent Asian carp migration – efforts that have only increased and expanded in the months since this lawsuit was filed – Plaintiffs have not shown either a sufficient likelihood of success on the merits of their substantive claims or a sufficient prospect of irreparable harm absent the requested injunction."

Specifically, the Court held that plaintiffs have "a minimal chance of success on the merits" of their Administrative Procedure Act claims: "[T]the evidence does not support the view that the Corps’ actions were wrong at all, much less arbitrary and capricious.  In fact, there is no evidence that Asian carp have entered Lake Michigan through the [Chicago Area Waterway System], that the barrier system has not operated with reasonable effectiveness, or that the operation of the O’Brien Lock has adversely affected Plaintiff’s interests."  The Court also held that plaintiffs have "a very modest likelihood of success" on their public nuisance claim, given that "the current evidence shows that (1) only one Asian carp has been discovered above the barrier; (2) at most, crediting the eDNA testing, only a small number of individual Asian carp exist above the electric barrier; (3) there is no basis for concluding that the electric barrier has been breached at all, much less in any significant way; (4) the closest known population of Asian carp in any significant numbers is in either the Brandon Road pool (south of Joliet), or more likely, in the Dresden Island pool (near Morris, many miles below the barrier); (5) the best estimate of the location of any juvenile (or 'young of year') Asian carp is even further downstream in the Marseilles area; and (6) the potential for the establishment of a self-sustaining population in the CAWS above the electric barrier or in Lake Michigan remains an unknown."

In considering whether plaintiffs have proven irreparable harm, the Court discounted the testimony of plaintiffs' expert: "[T]he centerpiece of Plaintiffs’ claim of irreparable harm is Dr. Lodge’s testimony based on the positive eDNA results that he reported above the electric barrier, along with the discovery of a single live fish in Lake Calumet and one dead fish found (below the barrier) in the December 2009 rotenone event.  Yet the eDNA results and those few fish, amongst the hundreds of thousands of pounds of fish collected, do not establish the requisite likelihood of imminent or irreparable harm.  Nor does the state of the eDNA science permit a reasonable inference that live Asian carp are in the canal system above the barrier in numbers that present an imminent threat.  Negative eDNA results comprise a super-majority of the results when compared to the number of samples taken."

Finally, the Court held that plaintiffs did not carry their burden of showing that the balance of the harms weighed in their favor.  In fact, the Court held that the balance of the harms actually weighed in the favor of the defendants: "Indeed, based on the evidence of record, the harms associated with the potential for increased flooding and sanitary issues and the economic hardships associated with the requested relief outweigh the more remote harm associated with the possibility that Asian carp will breach the electronic barriers in significant numbers, swim through the sluice gates and locks, and establish a sustainable population in Lake Michigan."

Note that this is not the end of the case.  Instead, the Court denied plaintiff's motion for preliminary injunction, which is a request for temporary relief before discovery and a trial on the merits occur.  However, considering the Court's conclusions regarding the plaintiffs' expert witness, this is a big blow to the plaintiffs' case.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Thursday, September 9, 2010

Asian Carp Czar Named by White House

The federal Council on Environmental Quality recently announced the appointment of John Goss as the Asian Carp Director.  According to CEQ's press release, Goss "will serve as the principal advisor to CEQ Chair Nancy Sutley on Asian carp issues, and oversee the coordination of Federal, state, and local efforts to keep Asian carp from establishing in the Great Lakes ecosystems. . . . Goss will also chair the Asian Carp Regional Coordinating Committee (RCC), which is a team of Federal, state and local agencies working together to prevent Asian carp from establishing populations in the Great Lakes."

CEQ's press release also describes Goss's background: "Goss joins CEQ from the Indiana Wildlife Federation, the Indiana State affiliate of the National Wildlife Federation, where he served for four years as the Executive Director.  In his role at the Wildlife Federation, he worked with conservation, business and industry groups to support the Great Lakes Compact.  Goss previously served as Director of the Indiana Department of Natural Resources and as Vice Chair of the Great Lakes Commission. . . . Prior to his position at the Indiana Department of Natural Resources, Goss was Director of Tourism for the State of Indiana and chaired the Great Lakes International Marketing Initiative for the Great Lakes Governors Association. Goss served as Chief of Staff for Lt. Governor Frank O’Bannon, District Director for Congressman Frank McCloskey and Deputy Mayor for the City of Bloomington, Indiana. Goss received his Masters of Public Affairs and his B.A. in Economics from Indiana University."

The question is whether the federal government needs an Asian carp czar now.  Several states have sued to force the closure of Chicago locks to physically prevent Asian carp from entering the Great Lakes.  Apparently, they believe that this is the only solution, because they have criticized everything else the Obama administration is doing.  While the appointment of Mr. Goss shows that the White House is very serious about this issue, will it really do anything to change the mind of those people who think that we must close the locks or else?  I doubt it.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, September 6, 2010

Federal Court Allows Three Parties to Intervene in Asian Carp Case

A federal judge recently allowed three parties to intervene in the Asian carp case (Michigan v. United States Army Corps of Engineers), currently pending in the U.S. District Court for the Northern District of Illinois.  Click here for more information on the Asian carp case.  The Court granted leave to the following parties to intervene as defendants: (1) the City of Chicago, (2) the Coalition to Save Our Waterways, and (3) Wendella Sightseeing Company, Inc. 

The Court held that the City "has demonstrated that its interests are direct, substantial, and capable of legal protection . . . ."  Those interests included: (1) to ensure that the Chicago police and fire departments' operations are not disrupted and that they are able to fully utilize the navigational locks and/or sluice gates to perform their emergency response, law enforcement, and homeland security duties; (2) to ensure that the sluice gates can continue to be used to maintain water quality and avert flooding; and (3) to ensure that the City's long-term efforts and plans to enhance the waterfront are not disrupted. 

The Coalition is a group of trade associations, whose interest in this case is in preserving the viability of the economic investments in businesses through the continued ability to navigate the Chicago Area Waterway System.  Similarly, Wendella provides boat tours, and its economic livelihood is directly at stake in this lawsuit.  The Court held that both the Coalition and Wendella had sufficient interests to intervene.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, July 19, 2010

Five States Open Second Phase of Asian Carp Litigation

When the U.S. Supreme Court ruled against the State of Michigan in its quest to stop Asian carp from migrating into Lake Michigan, many declared an end to litigation over the invasive species.  However, the State of Michigan (along with Wisconsin, Minnesota, Ohio, and Pennsylvania) today filed a second lawsuit--this time in federal district court in Illinois.

In their Complaint for Injunctive and Declaratory Relief filed in the U.S. District Court for the Northern District of Illinois, Case No. 10-CV-04457, the states sued the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago.  The gist of the complaint is that the defendants have failed to do enough to prevent the migration of Asian carp into Lake Michigan.  Count I of the complaint alleges public nuisance in that the defendants' failure to prevent the migration of Asian carp "will cause enormous and irreversible harm to the use and enjoyment and the other public rights in those waters."  Count II of the complaint alleges that the Army Corps of Engineers' actions and failure to act were not in accordance with federal law.

The states will look for an early victory on a motion for preliminary injunction, which requests the following:

"1.  Enter a Preliminary injunction enjoining the Defendants to immediately take all available measures within their respective control, consistent with the protection of public health and safety, to prevent the migration of bighead and silver carp through the CAWS into Lake Michigan, including, but not necessarily limited to, the following:
(a) Using the best available methods to block the passage of, capture or kill bighead and silver carp that may be present in the CAWS, especially in those areas north of the O'Brien Lock and Dam.
(b) Installing block nets or other suitable interim physical barriers to fish passage at strategic locations in the Calumet River between Lake Calumet and Calumet Harbor.
(c) Temporarily closing and ceasing operation of the locks at the O'Brien Lock and Dam and the Chicago River Controlling Works except as needed to protect public health and safety.
(d) Temporarily closing the sluice gates at the O'Brien Lock and Dam, the Chicago Controlling Works, and the Wilmette Pumping Station except as needed to protect public health or safety.
(e) Installing and maintaining grates or screens on or over the openings to all the sluice gates at the O'Brien Lock and Dam, the Chicago River Controlling Works, and the Wilmette Pumping Station in a manner that will not allow fish to pass through those structures if the sluice gates are opened.
(f) Installing and maintaining block nets or other suitable interim physical barriers to fish passage as needed in the Little Calumet River to prevent the migration of bighead and silver carp into Lake Michigan, in a manner that protects public health and safety.
(g) As a supplement to physical barriers, applying rotenone at strategic locations in the CAWS, especially those areas north of the O'Brien Lock and Dam where bighead and silver carp are most likely to be present, using methods and techniques best suited to eradicate them and minimize the risk of their movement into Lake Michigan.
(h) Continue comprehensive monitoring for bighead and silver carp in the CAWS, including resumed use of environmental DNA testing.

"2. Enter a preliminary injunction requiring the Corps to expedite the preparation of a feasibility study, pursuant to its authority under Section 3601 of the Water Resources Development Act of 2007, developing and evaluating options for the permanent physical separation of the CAWS from Lake Michigan at strategic locations so as to prevent the transfer of Asian carp or other invasive species between the Mississippi River Basin and the Great Lakes Basin. Specifically, the Corps should be required to:
(a) Complete, and make available for public comment, within six months, an initial report detailing the progress made toward completion of the evaluation.
(b) Complete, and make available for public comment, within twelve months, a second, interim report detailing the progress made toward completion of the evaluation.
(c) Complete, and make available for public comment, within eighteen months a final report detailing the results of the evaluation and recommendations for specific measures to permanently physically separate the CAWS from Lake Michigan at strategic locations to prevent the migration of bighead carp, silver carp or other harmful invasive species between the CAWS and the Great Lakes."

A hearing on the motion for preliminary injunction is scheduled before Judge Robert M. Dow, Jr. on July 28th in Chicago.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Wednesday, June 23, 2010

Asian Carp Found Above Electric Barrier System

On June 23rd, the Asian Carp Regional Coordinating Committee announced that that one Bighead Asian carp was found in Lake Calumet along the Chicago Area Waterway System (CAWS).  This is the first physical specimen that has been found in the CAWS above the U.S. Army Corps of Engineer’s Electric Barrier System that was designed to keep Asian carp out of the Great Lakes.

The Bighead carp was found in Lake Calumet which sits between T. J. O’Brien Lock and Dam and Lake Michigan.  The find was made in the northwest corner of the lake near Harborside Golf Course, approximately six miles downstream of Lake Michigan by a commercial fisherman contracted by the Illinois Department of Natural Resources during routine sampling efforts in the area.  The fish was measured to be 34.6 inches long and weighed 19.6 pounds.
 
Despite this finding, the Army Corps of Engineers stated that it has no intention to close the shipping locks on Chicago's waterways.  The Corps is unlikely to change this intention, unless more Asian carp are found above the Electric Barrier System.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.

Monday, June 7, 2010

100,000 Pounds of Fish Collected, But No Asian Carp Found in Latest Fishkill Operation

The Illinois Department of Natural Resources recently reported that its latest fishkill operation did not turn up any Asian carp.  This is part of the research operation to prevent the carp from entering the Great Lakes.

Biologists applied "the fish toxicant Rotenone to a more than two-mile stretch of the waterway at T.J. O’Brien Lock and Dam as a part of ongoing Asian carp sampling efforts by the Asian Carp Regional Coordinating Committee (RCC).  The length and location of the application and fish removal area was chosen to maximize the opportunity to capture Asian carp by including a variety of habitats along a substantial length of river channel that has had a high frequency of positive eDNA detections.  In addition to the Rotenone action, simultaneous electrofishing and commercial netting will take place between the downstream block net and Acme Bend."

The results: "[O]ver 100,000 pounds of fish [were collected] during the week-long operation.  Over 40 species of fish were collected, though no Bighead or Silver Asian carp were found." 

A similar operation was conducted in December 2009.  That effort "yielded one Bighead carp caught just above the Lockport Lock and Powerhouse approximately six miles downstream of the electric barrier.  No Asian carp have been found above the electric barrier to date."

Please click here and here for the full IDNR press releases concerning the latest round of sampling.

Stay tuned to the Illinois Environmental Law Blog for more news and developments.