Agencies release report that supports Attorney General?s Asian carp suit

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Dave Ullrich of the Great Lakes and St. Lawrence Cities Initiative, left, and Tim Eder, Great Lakes Commission, released their report at a press conference in Chicago Tuesday.

PHOTO COURTESY OF GREAT LAKES COMMISSION

by Cynthia Price
Legal News

The scenario sounds like science fiction: huge fish capable of flying completely out of the water and known to have leaped into boats damaging people and property are coming closer and closer to a densely populated lake basin in which they are likely to thrive.

That is the Lake Michigan basin, where the potential for the entry of the Asian carp from the Mississippi River has set off alarms at all levels.

State and national elected officials representing Michigan believe that the Asian carp threat is dire enough to warrant immediate action.

State Attorney General Bill Schuette filed a suit for a preliminary injunction to force the U.S. Army Corps of Engineers (USACE) to act in a more timely manner in addressing the Asian carp’s advance. Attorneys general in Minnesota, Ohio, Pennsylvania, and Wisconsin joined the suit, which also names the Metropolitan Water Reclamation District of Greater Chicago as a respondent.

When the Federal Court of Appeals, 7th Circuit, ruled against the injunction — despite acknowledging that the Asian carp pose a real threat to the Great Lakes — Schuette submitted a Petition for Writ of Certiorari to the United States Supreme Court. That was at the end of October 2011.

And the Michigan offensive does not stop there. Michigan Senator Debbie Stabenow introduced legislation, which she calls the Stop Asian Carp Act, in March of 2011. Rep. Dave Camp sponsored the same legislation in the House. The bills are currently still in committee.

Now a new report issued by two key agencies considers alternatives for a permanent fix to the problem not only of Asian carp but of any threatening species moving from the Mississippi to the Great Lakes.

The Great Lakes Commission and the Great Lakes and St. Lawrence Cities Initiative have issued “Restoring the Natural Divide: Separating the Great Lakes and Mississippi River Basins in the Chicago Area Waterway System.”

The crux of the matter is that, in an impressive engineering feat, the City of Chicago changed the direction of the Chicago River in about 1900. The river used to flow directly into Lake Michigan, but creation of the Chicago Area Waterway System, which includes the Chicago Sanitary and Ship Canal, allowed the city to divert its sewage wastes (now treated) away from the Lake Michigan drinking water source and into the Des Plaines River and ultimately the Mississippi.

That opened up a pathway between Lake Michigan and the Mississippi, as well as the opportunity for commercial shipping between the two areas.
There is therefore no way to prevent non-native species such as the Asian carp (which is actually a catch-all term for several non-native carp) from taking the opportunity to move between the two water systems as well. Evidence that that passage is very close to taking place is in abundance.
Those with a stake in preventing such a migration have proposed separating Lake Michigan/the Great Lakes from the Mississippi River once again.

Because the Asian carp species are not native to the area, they have no natural predators to prevent their overwhelming the existing Lake Michigan ecosystem, which has already been threatened by introduction of non-native invasive species, including zebra and quagga mussels.

Naturally, there are economic dimensions to this tale. The Asian carp invasion is likely to have great negative impact on Great Lakes sportsfishing and boating, $9 billion and $17 billion industries respectively. Conversely, shipping facilitated by the passageway has been a boon to Chicago area commerce.

However, that does not mean that as scientists and government agencies recognized the Asian carp threat, they did nothing to stop it. Electric barriers were built, but when it became clear those barriers had been breached, the Federal government pulled together a multi-pronged Asian Carp Control Strategy. (The latest document is available at http://asiancarp.us/documents/2011Framework.pdf.)

Therein lies the rub. The strategy charges the U.S. Army Corps of Engineers with developing a report and feasibility study on separating the two basins. But the time frame even for issuance of the report (the Final Feasibility Report is due out in the summer of 2014) is well beyond what many observers feel will prevent the Asian carp species from entering the Great Lakes system.

Attorney General Schuette commented, “We need to close the Asian carp superhighway, and do it now. Time is running out for the Great Lakes, and we can’t afford to wait years before the federal government takes meaningful action.” Both the lawsuit and the Stop Asian Carp Act ask for the USACE’s report to completed within 18 months.

Hence the report released Tuesday.

Both of the agencies which issued “Restoring the Natural Divide” have constituencies with a strong stake in the matter.

The Great Lakes Commission  is an interstate compact agency established by state and U.S. law that has the eight Great Lakes states as members. The Great Lakes and St. Lawrence Cities Initiative is a U.S.-Canadian coalition of over 80 mayors and other local officials working for the restoration and protection of the Great Lakes and St. Lawrence River basin. Grand Rapids Mayor George Heartwell is on the board of directors of the Cities Initiative.

The two agencies collaborated with many others, including the U.S. Army Corps of Engineers, in fact, to assess three alternatives for effecting the separation of the basins.
As Tim Eder, Executive Director of the Great Lakes Commission, commented, “Our report demonstrates that it can be done.” Eder and Dave Ullrich of the Great Lakes and St. Lawrence Cities Initiative discussed the three alternatives Tuesday after the report’s release in Chicago. Their assessment, which they stress is preliminary and requires substantial additional investigation, resulted in a preferred method, which is called the “Mid-System Alternative.”  They estimate the fix would cost about $4.25 billion, including all long-term maintenance.

Eder emphasized that all three alternatives would enhance water transportation as well, and contribute to better water quality. In addition, Ullrich said the report estimates the resulting “savings,” if ecosystem and fishing/boating industry losses are avoided, would be about $5 billion over 30 years — even if the separation prevented only Asian carp from entering the lake basin. The USACE estimates that at least ten invasive species are currently poised to make the passage.

Senator Stabenow points out that the production of this report, which can be found at www.glc.org/caws, is a good indication that an 18-month time frame can be accomplished.
The cases filed by Michigan and the other states ask for both fast-tracking the USACE report, and installing block nets in the nearby Little Calumet and Grand Calumet rivers.
In response to the bases for the 7th Circuit injunction denials, Michigan’s Petition for Writ of Certiorari to the U.S. Supreme Court asks for a ruling on the following questions:
“1. Whether a request for multiple types of preliminary-injunctive relief requires a balancing of harms with respect to each form of relief requested.

“2. Whether a party’s statement that it is ‘considering’ implementing the relief requested in a motion for injunction is a ground for denying the injunction.”

Last year, Schuette also organized a coalition of 17 state attorneys general to endorse the Stop Asian Carp Act.

Agencies issuing “Restoring the Natural Divide” hope the report will act as a catalyst   to  reunite the region around a feasible long-term solution to the broader problems non-native species inter-basin travel poses.