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.

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.

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.

New Asian Carp Monitoring and Sampling Plan Released

On May 5th, the Asian Carp Regional Coordinating Committee released its three-month monitoring and sampling plan to prevent Asian carp from establishing self-sustaining populations in the Great Lakes.  The plan involves fishing as well as an additional round of rotenone poisoning.

The Regional Coordinating Committee described the plan in a press release as follows:

"The new sampling and monitoring plan will take those traditional fishing methods to the North Shore Channel where a three day sampling effort using electrofishing gear and commercial fishing nets will be used in an attempt to locate Asian carp.  The operation will require the Illinois Department of Natural Resources to close a portion of the North Shore Channel . . . . The area targeted for sampling extends ¼ mile south of Oakton Street- approximately five miles north to the Wilmette Pumping Station. . . .

"The new plan also calls for a rotenone sampling operation upstream of the electric barriers near the O’Brien Lock and Dam to determine whether- and if so, how many- Asian carp might exist in that location where positive eDNA samples have been taken.  The planned application and subsequent fish recovery will begin with waterway closure on Thursday, May 20 and last five to six days.  The application will take place on the Little Calumet River approximately one mile downstream of T.J. O’Brien Lock and Dam, east of the I-94 overpass, and will cover a stretch of two miles downstream of the starting location."

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

U.S. Supreme Court Rejects Asian Carp Case Brought by State of Michigan

The Asian carp case in the U.S. Supreme Court officially ended on April 26th with a two sentence order by the Court: "The motion of Michigan to reopen and for a supplemental decree is denied.  The alternative motion for leave to file a bill of complaint is denied."

The State of Michigan had filed an action in the Supreme Court to order the State of Illinois, the Metropolitan Water Reclamation District of Greater Chicago, and the U.S. Army Corps of Engineers "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 into Lake Michigan."  The Supreme Court's latest ruling comes after extensive briefings by the parties and two prior orders denying Michigan's motions for a preliminary injunction, which sought to immediately close the locks.

What will happen next?  It seems unlikely, although possible, that Michigan will file a new action in federal district court to continue litigation.  The most likely solution is a political one--one in which the Obama administration works with the governors of the Great Lakes states to come up with a middle-of-the-road solution.  What is clear is that the locks will not be closed in the immediate future.

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

Report: If Locks Are Closed to Stop Asian Carp, Economic Impact Will Be $4.7 Billion Over 20 Years

On April 7th, DePaul University Professor Joseph P. Schwieterman released a report entitled "An Analysis of the Economic Effects of Terminating Operations at the Chicago River Controlling Works and O'Brien Locks on the Chicago Area Waterway System."  This report attempts to quantify the economic impact that would result if Chicago-area locks were closed to prevent Asian carp from reaching Lake Michigan.  According to the report:

"The findings show that spending by consumers and commercial shippers on the barge and boat operations that would be affected by closure of the locks has an annual financial impact of $1.3 billion. This figure is inclusive of multiplier effects related to waterway use but not inclusive of certain employment-related effects, which can only be measured with further study. The economic value lost from permanent closure is estimated to be $582 million the first year, $531 annually over the subsequent seven years, and $155 million annually thereafter. The net present value of these costs, over a 20-year planning horizon at a four percent discount rate, is $4.7 billion.

"For the first year after closures, the lost value consists of added transportation costs ($125 million; inclusive of social costs), losses to recreational boaters ($5 million), consumers of river cruises and tours ($20 million), municipal departments providing public protection ($6 million), property owners ($51 million), and regional agencies needing additional funds for flood-abatement systems ($375 million). A portion of these losses would be shouldered by industries outside the Chicago metropolitan area, particularly certain ports in the Mississippi River basin that serve the barge transportation industry."

This report bolsters the claim of many who believe that closing the locks would have a devastating effect on the Chicago-area economy.  They believe that there are alternative ways to prevent Asian carp from reaching Lake Michigan without closing the locks.  Some environmentalists, on the other hand, believe that it will be devastating if Asian carp reach Lake Michigan, and that it is worth the potential economic impact.  These contrary opinions are the subject of a case presently before the U.S. Supreme Court, which is supposed to take up the case on the merits this month.

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

Six Weeks of Intensive Sampling Leads to Discovery of Zero Asian Carp

On March 29th, the Asian Carp Regional Coordinating Committee gave an update on sampling in Chicago-area waterways to find out if Asian carp have eluded an electric barrier designed to block their path to Lake Michigan.  After six weeks of sampling, no Asian carp were discovered:

"Over the last six weeks, field crews from the Illinois Department of Natural Resources (DNR), U.S. Fish and Wildlife Service (Service) and U.S. Army Corps of Engineers intensively sampled throughout the entire Chicago Area Waterway System and no Asian carp were observed or collected. . . .

Field crews set approximately 5.6 miles of net and sampled for a total of 60 hours using electrofishing gear in the main channels, barge slips, marinas and other offchannel areas.  Species collected in highest abundance were common carp (1,000) and gizzard shad (+1,000).  Other species observed or collected included bluntnose minnow, drum, pumpkinseed sunfish, largemouth bass, northern pike, channel catfish, yellow perch, green sunfish and yellow bullhead.  All fish collected were returned to the channel."

Plans are being developed to continue monitoring for Asian carp over the next three months.  Previous monitoring efforts have yielded one Asian carp and the discovery of Asian carp DNA.

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

U.S. Supreme Court Rejects Michigan's Asian Carp Argument for a Second Time

As reported previously on this blog, the State of Michigan renewed its request, last month, to the U.S. Supreme Court for a preliminary injunction that would have immediately closed Chicago-area locks to protect against Asian carp.  Today, the Supreme Court rejected that renewed motion in a one sentence order.

This does not mean that the court battle over Asian carp is over--far from it.  Although the Supreme Court ruled that a preliminary injunction is not warranted at this time, the Court could eventually rule on the merits that an injunction is appropriate.  It will just take a lot longer than Michigan and its allies would like.

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

U.S. EPA Announces Comprehensive Asian Carp Strategy

Earlier this month, the U.S. Environmental Protection Agency published a draft "Asian Carp Control Strategy Framework."  The main objectives of the Framework were to

• Establish the need for participating agencies to act urgently to prevent Asian carp from becoming established in the Great Lakes.

• Integrate and unify the future actions of participating agencies.

• Transition from a single point defense (electric barriers) to a multi-tiered approach.

• Provide general direction while recognizing that the pattern of Asian carp migration demands a measure of flexibility on the part of participating agencies to act.

• Recognize potential hurdles that might complicate Framework implementation.

• Suggest an approach for stakeholders and other agencies to actively collaborate in future efforts.
 
The Framework suggested the following actions:
 
Short-term Actions (Either underway or are expected to commence by May 15, 2010)

1. Operations to confirm and reduce carp populations

• Utilize chemical, netting and other mechanisms in known eDNA priority zones (Cal-Sag Channel, O’Brien Lock and Dam, Wilmette pumping station, and Calumet Harbor).

• Ensure Rotenone (a piscicide) supplies and fishing capabilities are adequate for possible responses.

• Prepare for immediate rapid response operations by procuring equipment, providing training and exercises for personnel, and creating stand-by capability for rapid deployment.

2. Increased fish collection effort for confirmation of eDNA results and carp populations

• Deploy more frequent and intense harvesting methods in conjunction with rotenone applications where feasible and coordinate efforts with eDNA sampling to increase likelihood of successful collection.

3. eDNA indicator refinement

• Increase capacity to 120 samples per week by April of eDNA results to guide efforts.

4. Modified structural operations

• Change the manner in which existing CAWS structures, such as locks & dams, sluice gates and pumping stations, are operated in combination with other management actions, to impede the migration of Asian carp into the Great Lakes. This concept is likely to be incrementally executed as capabilities become available. The impacts of this as well as the potential efficacy of any actions will be evaluated pursuant to applicable laws such as the National Environmental Policy Act

• Implement an approach with three phases

i. Phase 1: Concept Development – Integrate agencies’ efforts to develop methods to suppress Asian carp population growth while USACE and U.S. Coast Guard (USCG) simultaneously determine how to optimize/reduce the number of lock openings, and the Metropolitan Water Reclamation District (MWRD) considers how to operate the Wilmette Pumping Station to impede Asian carp movement. This will occur after engaging the navigation industry. The goal for this phase is to complete concept development and recommended actions by early March 2010;

ii. Phase 2: Initial Implementation – Execute modified structural operations as quickly as possible once methodologies are ready, with initial elements underway by April 30, 2010;

iii. Phase 3: Additional Implementation – Adjust initial methodologies based on field results to sustain longer term operations. In conjunction with continued population suppression, continue to field new methodologies as they become available, such as acoustic bubble barriers or electric barriers, as well as addition of screens at sluice gates and bulkheads for use during flood damage reduction operations with goal of full implementation by the end of 2010.

5. Construct emergency engineering measures to block passage of water and fish between (1) Des Plaines River and CSSC and (2) Illinois and Michigan (I&M) Canal and CSSC.

6. Increased biological control efforts

• With increased funding and capacity, expedite research on targeted control, including pheromone attractants, disruption of spawning behavior, and decreasing egg viability.

7. Barrier operations

• Sustained operations of the current electric dispersal barriers and construction of the new planned electric barrier, both important impediments to the Asian carp expansion in the Great Lakes.

Long-term Actions

The Long-term Actions are also integral to the success of preventing Asian carp from establishing a self-sustaining population in Lake Michigan. Examples of actions are shown below in five sub-categories; however the set of proposed actions, listed later in this document, is more comprehensive.

1. Structural:

• Efficacy studies to investigate the construction and implementation of additional barriers such as electric, light, and/or bio-acoustic bubble barriers

2. Chemical:

• Additional possible rotenone applications where testing suggests Asian carp presence

3. Biological:

• Suppression of Asian carp populations in CAWS and in downstream areas utilizing a variety of methods

• Development of biological controls similar to those used for lamprey suppression

4. Operational:

• Sustained operations of electric barriers

• Enhanced monitoring programs via traditional or new methods

5. Other:

• Controlled lock operations using chemical and other means to reduce migration

• Promotion of Asian carp market development

• Integration of the Great Lake States, Provincial, and Tribal capabilities and expertise into the proposed framework actions

• Technology enhancement programs

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

Michigan Requests That Supreme Court Reconsider Asian Carp Ruling

As reported on this blog, the U.S. Supreme Court recently denied the State of Michigan's request for a preliminary injunction that would have immediately closed Chicago-area locks to protect against Asian carp.  According to a recent press release from the office of Michigan Attorney General Mike Cox, a motion to reconsider that decision was filed on Michigan's behalf:

"Cox pointed to eDNA tests showing evidence of Asian carp in Lake Michigan that was available three days before the Court made its decision but not provided by the U.S. Army Corps of Engineers until afterward.  In the aftermath of this revelation, Michigan's motion questions the lack of action by Illinois and federal authorities to increase efforts against the spread of Asian carp despite claims they made in earlier legal filings that they would 're-visit the conclusions related to lock closure' in the event new information became available.

"Additionally, Michigan's motion includes an economic study on the effects of the closure of the locks necessary to separate the Mississippi River basin from the Great Lakes basin.  The study, conducted by a Wayne State University transportation expert, concludes Illinois' claim that 'even a temporary closure of the locks will devastate the local economy' cannot be supported.  For example:

· Statistics previously submitted to the Court by Illinois and the federal government on the potential economic costs of lock closure are 'seriously exaggerated.'  The report says annual costs would amount to less than $70 million, much lower than the $190 million claim made by Illinois and the federal government.  This stands in contrast to the billions in economic activity and thousands of jobs at risk if Asian carp enter the Great Lakes.

· While noting the canal system would largely remain open to barge traffic after a lock closure, cargo though the O'Brien Lock is already down 45 percent in recent years, showing its rapidly declining significance in Chicago's $521 billion economy.

· Truck traffic would increase by only 1/10 of 1 percent as a result of lock closure, while jobs would likely increase overall as a result of the new modes of transposition needed, like trucking."

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

President Obama Requests $10 Billion for EPA for 2011

Today, the Obama administration issued its 2011 budget proposal, which included $10.020 billion in discretionary budget authority for the U.S. Environmental Protection Agency.  Highlights of EPA's budget include:

--$1.3 billion "to address Superfund sites that may be releasing harmful or toxic substances into the surrounding community."

--$215 million "to clean up abandoned or underused industrial and commercial sites that are available for alternative uses but where redevelopment may be complicated by the presence of environmental contaminants."

--$27 million for EPA’s new Healthy Communities Initiative, which "will address community water priorities; promote clean, green, and healthy schools; improve air toxics monitoring in at-risk communities; and encourage sustainability by helping to ensure that policies and spending at the national level do not adversely affect the environment and public health or disproportionally harm disadvantaged communities."

--$60 million "to support state efforts to implement updated National Ambient Air Quality Standards (NAAQS)."

--$1.3 billion for state and tribal grants to help "implement new and expanded requirements under the Clean Air Act and Clean Water Act."

--"$43 million for additional efforts to address climate change and work toward a clean energy future.  EPA will implement the greenhouse gas reporting rule; provide technical assistance to ensure that any permitting under the Clean Air Act will be manageable; perform regulatory work for the largest stationary sources of greenhouse gas emissions; develop standards for mobile sources such as cars and trucks; and continue research of carbon capture and sequestration technologies."

--$300 million for the Great Lakes Restoration Initiative "for programs and projects strategically chosen to target the most significant environmental problems in the Great Lakes ecosystem."

--$3.3 billion "to maintain and improve outdated water infrastructure and keep our wastewater and drinking water clean and safe."

--$56 million "for chemical assessment and risk review to ensure that no unreasonable risks are posed by new or existing chemicals."

--$8 million "for environmental justice programs.  It targets increased brownfields investments to under-served and economically disadvantaged neighborhoods, and proposes $9 million for community water priorities in the Healthy Communities Initiative, funds that will help under-served communities restore urban waterways and address water quality challenges."

EPA's $10.020 billion request for 2011 is down from the $10.5 billion requested for 2010.  Congress enacted a $10.3 billion budget for EPA for FY2010.

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

U.S. Supreme Court Denies Request to Close Locks on Same Day Asian Carp DNA Found in Lake Michigan

On January 19, 2010, the U.S. Supreme Court entered a one-sentence order (page 3 of this list of orders) denying the State of Michigan's request for preliminary injunction that would have immediately closed locks and gates leading to Lake Michigan.  Michigan requested these actions to prevent Asian carp from getting into the lake.

On the same day, the U.S. Army Corps of Engineers announced that the multi-agency Asian Carp Regional Coordinating Committee "received information from the University of Notre Dame about one positive environmental DNA result for silver carp in Calumet Harbor approximately one-half mile north of the Calumet River and one more at a location in the Calumet River north of O’Brien Lock."  According to the Corps, the Regional Coordinating Committee "is now working to respond to the most recent eDNA results, including consideration of:

· Rapid deployment of intensive netting, including electrofishing and specialized netting alternatives, in the area near O’Brien Lock to reduce the possibility that a selfsustaining population might be established.

· Continued research into scientific advances to apply detection systems that will allow participating agencies to pinpoint the exact location and numbers of carp.  Current eDNA testing does not yet provide this information.

· Planning to develop the concept of how existing structures, such as locks, could be operated in a way that would minimize the risk of carp migration while the U.S. Coast Guard, local public safety and emergency responders, needed cargo, and other traffic transits the waterway;

· Expedited construction of new electric dispersal Barrier IIB to complement existing barriers, and severance of culverts and other bypass routes in the event of flooding, that might allow carp entry from adjacent waterways.  Interim obstructions will be completed this year;

· Accelerate development of possible biological controls for Asian carp; and

· Continued efforts to assess 'ecological separation' as a long-term strategy that blocks invasive species from transferring between the Great Lakes and Mississippi River watersheds while still allowing cargo and 'clean traffic' to pass, leveraging the Corps of Engineers’ Great Lakes and Mississippi River Interbasin Transfer Study."

More coverage of these events can be found in the Associated Press's article on these issues.

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

Lake County Suburbs Apply to Connect to Lake Michigan Water

The Chicago Tribune recently reported that ten Lake County, Illinois suburbs have applied to connect to Lake Michigan water. 

The suburbs are Antioch, Fox Lake, Fox Lake Hills, Grandwood Park, Lake Villa, Lake Zurich, Lindenhurst, Long Grove, Volo, and Wauconda.  The residents in those suburbs currently use well water.  Those ten communities propose "spending $250 million to lay about 57 miles of pipe and take other steps that would bring Lake Michigan water to the western part of Lake County."

The Illinois Department of Natural Resources is responsible for allocating the State of Illinois' use of Lake Michigan water.  According to IDNR's website:

"A 1967 U.S. Supreme Court Decree limits Illinois' diversion of water from Lake Michigan.  In response, the General Assembly has tasked the Illinois Department of Natural Resources with developing an ongoing program to equitably allocate Illinois' limited supply of Lake Michigan water.  The 'Rules and Regulations for the Allocation of Water from Lake Michigan' describe the allocation process, contains the criteria used to evaluate applications for a water allocation and the water conservation practices and other permit conditions required of allocation permit holders."

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

Asian Carp DNA Found Along Chicago River

According to a story in the Chicago Tribune, Asian carp DNA has been found along the Chicago River:

"The DNA -- but no live fish -- was found in three different spots along the Chicago River near the Wilmette pumping station north of Chicago, said Major Gen. John Peabody with the [U.S. Army Corps of Engineers'] Great Lakes and Ohio River division. The sample was taken in October, and the Corps received the results Thursday."

This finding has renewed "fears that the fish have breached an electrical barrier meant to keep them from reaching the Great Lakes and destroying its multi-billion-dollar fishing industry."  Environmental groups claim that this finding supports their call for the closing of canal locks that lead into Lake Michigan.  However, the Obama administration does not support closing the locks.  In fact, "Solicitor General Elena Kagan told the Supreme Court environmental DNA, or 'eDNA,' testing was experimental science.  Discovery of genetic material from carp doesn't necessarily mean the fish were there, she said."

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

Federal Government and State of Illinois File Briefs in U.S. Supreme Court Opposing Michigan's Request for Action on Asian Carp

The federal government and the State of Illinois filed briefs in the U.S. Supreme Court opposing Michigan's request for relief to close locks to prevent Asian carp from getting into Lake Michigan.
Both briefs make the technical legal argument that the U.S. Supreme Court should not hear the case (a lack of jurisdiction) for two reasons.  First, they argue Michigan should not be able to reopen a 1967 consent decree, which deals with the removal of water from Lake Michigan, because the subject matter of this controversy is not the same.  Second, they argue that, although the U.S. Supreme Court has exclusive jurisdiction over controversies between states, Michigan does not actually request relief from the Illinois.  In fact, it appears that the State of Illinois may have no control over the facilities at issue here.

More importantly, the briefs argue that closing the locks is not immediately necessary.  The federal government argues:

"Michigan’s far more dramatic requests for relief -- the closure of the locks and sluices and the construction of temporary barriers in the Little Calumet River -- are not warranted to stop an imminent threat of irreparable injury.  Michigan’s averments depend entirely on Dr. Lodge’s eDNA results to date.  But contrary to Michigan’s arguments, the current eDNA results alone do not establish the requisite likelihood that a reproducing population of carp is on the verge of establishing itself in the Great Lakes."

The federal government argues that it has taken action to prevent Asian carp from reaching the Great Lakes.  Indeed, several federal agencies continue working on the issue, and, therefore, Michigan's requested relief is not warranted at this time.

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

Ohio Joins U.S. Supreme Court Fight Regarding Asian Carp

On December 23, 2009, the State of Ohio filed a brief in the U.S. Supreme Court supporting the State of Michigan's complaint seeking action to prevent the Asian carp from infiltrating the Great Lakes.  Like Michigan, Ohio blames Chicago's prior water diversion projects for giving the Asian carp access to the Great Lakes.  Here is the specific action requested by the State of Ohio:

"But for the defendants’ actions in the early twentieth century—the construction and operation of the Chicago Sanitary and Ship Canal—the Great Lakes would not now be threatened by the steady march of the Asian carp up the Mississippi River and its tributaries.  By sanctioning the ongoing diversion of water from Lake Michigan, this Court’s 1967 consent decree permits the continued operation of that Canal.  Therefore, the State of Michigan has appropriately sought a modification of that decree: Until the State of Illinois, the Metropolitan Sanitary District of Greater Chicago, and the United States agree to take all necessary and appropriate measures to prevent the introduction of the carp into Lake Michigan, this Court must modify its decree to prohibit all further diversion of water from Lake Michigan into the Canal—thereby closing the door to the carp’s entryway into the Great Lakes, and to the irreparable damage that would ensue."

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

Michigan Sues to Spark Action to Block Asian Carp

On December 21, 2009, the State of Michigan filed a petition and motion for a preliminary injunction asking the U.S. Supreme Court to order the State of Illinois, the Metropolitan Water Reclamation District of Greater Chicago, and the U.S. Army Corps of Engineers "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 into Lake Michigan, including, but not necessarily limited to, the following:

(a) Closing and ceasing operation of the locks at the O'Brien Lock and Dam and the Chicago Controlling Works.

(b) Operating the sluice gates at the O'Brien Lock and Dam, the Chicago Controlling Works, and the Wilmette Pumping Station in a manner that will not allow fish to pass those structures into Lake Michigan. This should include maintaining the waterways at the lowest level possible that is still consistent with protecting against serious threats to public health and safety, and limits opening the gates except as required to prevent significant flooding that threatens public health or safety.

(c) Installing interim Barriers or structures as needed in the Grand and Little Calumet Rivers to prevent the migration of bighead and silver carp into Lake Michigan.

(d) Installing interim Barriers or structures between the Des Plaines River and the Chicago Sanitary and Ship Canal to prevent bighead and silver carp from entering the Canal from the Des Plaines River during a flood event.

(e) Operating the existing Electrical Dispersal Barrier System at full operating power and expediting completion of the proposed Barrier IIB.

(f) Comprehensively monitoring the Chicago Sanitary and Ship Canal and all connected waterways for the presence and location of bighead and silver carp using the best available methods and techniques.

(g) Eradicating any bighead or silver carp discovered in these waters."

Responding to critics who have said that these proposed steps would harm the shipping industry, Michigan says that "no doubt [there would] be economic injury, but the damage will be finite, and will be miniscule in comparison to the economic harm caused should the carp enter the Great Lakes."

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

Federal Government Allocates $13 Million to Fight Asian Carp

According to a recent article in the Chicago Tribune, the federal government will allocate $13 million to prevent Asian carp from entering the Great Lakes.  The money will come from the $475 million fund that Congress appropriated for a comprehensive restoration of the Great Lakes.

The $13 million "will be used for engineering projects to prevent the carp from slipping into Lake Michigan near Chicago. They include closing conduits and shoring up low-lying lands between the Chicago Sanitary and Ship Canal — which leads to the lake — and other waterways."

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

Asian Carp Found Near Great Lakes During Massive Fish Kill Operation

According to an article from the Associated Press, the U.S. Fish & Wildlife Service discovered a "22-inch immature specimen" of Asian Carp "among tens of thousands of dead fish identified in a fish kill operation in the Chicago Sanitary and Ship Canal, about 40 miles from Lake Michigan." 

The fish kill operation took place while an electric barrier, which was erected to prevent Asian Carp from reaching the Great Lakes, was down for maintenance.  More than 2,000 gallons of a poison called rotenone was dumped into the Chicago Sanitary and Ship Canal.  This resulted in "ten of thousands of other species of fish, from gizzard shad to drum" to float to the surface of the waterway.  The kill operation "began Wednesday and was expected to last until Sunday."  At the end of the operation, an expected 200,000 pounds of dead fish will be removed and sent to a landfill.

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

DNA Testing Shows Asian Carp Within 7 miles of Lake Michigan

There are new fears that Asian carp are getting closer to the Great Lakes.  According to two recent articles in the Chicago Tribune, DNA testing found evidence of the Asian carp within 7 miles of Lake Michigan after apparently leaping an electrical barrier erected to prevent the carp from reaching the Great Lakes. 

Scientists found Asian carp DNA above an electric fish-barrier in the Sanitary and Ship Canal.  Asian carp are now are only one lock and dam away from the Great Lakes.  The articles described the DNA testing:

"The tests sift carp DNA out of suspended particles floating in river currents, and they indicate for the first time that bighead and silver carp are just below the O'Brien lock on the Calumet River, in the Des Plaines River above the Lockport lock and at the confluence of the Calumet Sag Channel and Chicago Sanitary and Ship Canal. All three locations are above the multimillion-dollar electrified carp barrier built to keep invasive species from moving from the Illinois River to the Great Lakes, and vice versa."

"'There is no reason to think that there aren't carp present when the DNA is detected,' said David Lodge, a researcher with the University of Notre Dame who is conducting the genetic analysis. 'It's hard to come to any other conclusion other than that there are carp somewhere in the region.'"

Please click here and here to access the articles in the Tribune.  Stay tuned to the Illinois Environmental Law Blog for more news and developments.