It was not surprising to us that the Supreme Court did not grant Michigan’s request for emergency action – that’s just not what the Justices typically do (Bush v. Gore being one notable exception that proves the rule). But this time, when the Justices consider Michigan’s case, they’ll be looking at the broader merits of Michigan’s suit, which seeks a permanent solution to prevent Asian carp from getting into Lake Michigan and endangering the economy and ecology of the entire Great Lakes region. It’s notable that each and every Great Lakes state other than Illinois, as well as the Canadian Province of Ontario, have all filed papers with the Supreme Court urging the Court to hear Michigan’s case. This is a powerful showing of unity across the Great Lakes region that the invasive species problem raises critical issues that should be decided by the highest court in the land.
NRDC and two other environmental groups filed an amicus brief with the Supreme Court, urging the Court to take the case. We are hopeful that the Supreme Court’s intervention will force the Army Corps, Illinois and MWRD to come together with the other Great Lakes states and talk about real, long-term, permanent solutions. We need to reframe this issue so that it is no longer driven by conflict between States, interest groups, or ideologies. If we can come together and solve this problem as a region, we can find a way to do it that will increase our long-term economic competitiveness and allow us to live more sustainably with our Great Lakes.
I was on FOX Chicago on Friday morning, talking about what a permanent solution might look like and how it could benefit Chicago and the Great Lakes region.
In our view, the only permanent, reliable long-term solution to invasive species transfer is hydrological separation: making physical changes to the Chicago waterway system that completely eliminate any movement of water between the two ecosystems that might allow invasive organisms to move with it. If done right, hydrological separation will involve smart, well-planned investments that will establish new, more sustainable infrastructure in the Chicago waterway system and enable our region to rethink its transportation system, the lifeblood of our commerce, as well as how we handle wastewater and stormwater. The result could be a newly revitalized, fishable, swimmable Chicago waterway system that not only is no longer a highway for invasive species, but also has enhanced water quality, tourism and recreation, and commercial freight movement.
]]>There’s only one problem…
The scenario that they’re studying? Nobody is actually proposing it... Not NRDC or the many, many others who care about the ecological health and economic vitality of the Great Lakes. Not the States of Michigan, Wisconsin, Indiana, Ohio, New York, or Pennsylvania, or the Canadian Province of Ontario, all of which have asked the U.S. Supreme Court to intervene. Not anyone.
It’s a $4.7 billion straw man, a worst-case scenario set up by the Chamber just so they can knock it down in a press release.
My colleague Henry Henderson summed it up nicely, when he was asked by FOX News Chicago for his reaction to the Chamber’s report:
"They have demonstrated very well that a stupid idea that nobody suggests is indeed stupid," said Natural Resources Defense Council Director Henry Henderson. "As opposed to: how do we get this done in a way that pays for the needs for upgrades in our infrastructure, manages our wastewater and protects what is the most important economic gem of the great lakes?"
What NRDC and others have been calling for as a permanent solution is hydrological separation of the Great Lakes and the Mississippi River, so that there is no longer a direct connection between the two ecosystems that would allow for aquatic invasive species to continue travelling back and forth, in both directions.
Invasive species have been able to spread far and wide throughout the U.S. primarily because we have breached the natural barriers that used to separate ecosystems. Restoring the natural divide between the Great Lakes and the Mississippi River is not only a permanent, reliable long-term solution for threat of Asian carp to the Great Lakes, but also for every other invasive species that will come after them. It will protect our waters and prevent the spread of a problem that costs our economy literally billions of dollars annually.
Hydrological separation is not the same thing as closing the locks or closing the canal system. Under this alternative, barriers would be constructed strategically in the Chicago waterway system to completely eliminate any movement of water between the two ecosystems that might allow invasive organisms to move with it. If done right, hydrological separation will involve smart, well-planned investments that will establish new, more sustainable infrastructure in the Chicago waterway system.
That separation also means fixing the aging infrastructure of the Chicago waterway system that is exposing us to unacceptable risks of invasive species will also force us to rethink how we manage our stormwater and wastewater and move goods through the region. And that will benefit the economies of Chicago and the entire region. Perhaps more importantly at this time of economic disruption, it will create jobs. Lots and lots of jobs.
Unfortunately, the debate on this issue (like so much in our politics) has become ugly and polarized. It has been reduced to the loud fight between Michigan (backed by the other Great Lakes states) and Illinois (backed by their local allies, such as the Illinois Chamber) over whether cutting-edge scientific tests indicating Asian carp are in the early stages of invading Lake Michigan justify closing the locks. Never mind the fact that nobody has called for an arbitrary permanent closure, or claimed that lock closures are a perfect (or permanent) solution. Sadly, the fact has been lost in this charged debate that adjusting lock management is only one of a number of things that should be done as part of a rational response to an unfolding emergency.
Even Michigan Attorney General Mike Cox, who asked the Supreme Court to close the locks temporarily, does not seek lock closure as a permanent solution. Rather, Michigan’s lawsuit asks the Supreme Court to
“requir[e] the State of Illinois, [MWRD], and the [Army] Corps to take all appropriate and necessary measures to expeditiously develop and implement plans to permanently and physically separate carp-infested waters in the Illinois River basin, the Canal, and connected waterways from Lake Michigan so as to prevent the migration of bighead carp, silver carp, or other harmful aquatic invasive species into Lake Michigan.”
In other words, Michigan – like NRDC and many others – is calling for a well-planned permanent solution that invests in new infrastructure that will better protect us from the invasive species threat… but also will create opportunities to overcome a range of water management and transportation challenges that we already face.
The clock is ticking to come up with a real solution on this issue. We need to find interim steps to keep the carp out of Lake Michigan while the permanent separation gets scoped out and built. Sadly, studies like the one that the Chamber is pushing simply delay fixing the problem. Now that we all agree that the “solution” their study examines, as Henry bluntly notes, is indeed “stupid” – it is time to get to work on a real solution that will be good for business, create jobs, and help Chicago and the entire Great Lakes region prosper in a 21st Century economy.
That seems like something the Illinois Chamber – and everyone else who cares about the economic future of Chicago and the Great Lakes region – should join us in embracing.
]]>Fundamentally, the court’s decision recognizes what we have been arguing all along: that there is “ample scientific evidence and expert opinion” that invasive species must be prevented from entering and being spread throughout the Great Lakes ecosystem through vessels’ ballast water. The New York appeals court’s decision affirms the ruling of the trial court in our favor in June 2009, a victory I blogged about over at the Great Lakes Law Blog. The decision is also consistent with the decision of the federal appeals court in Cincinnati upholding Michigan’s ballast water statute from a similar industry legal challenge, a case that I was also involved in litigating. At the same time, these victories in individual states only highlight the need for a comprehensive federal solution, and we are continuing to push hard through litigation and advocacy for a strong federal program that combines the relevant expertise and authority of both EPA and the Coast Guard.
Even as I enjoyed hearing news of the New York ballast water victory, I’ve been forced to redouble my efforts in recent days to address an even more urgent invasive species threat: that of the Asian carp making their way toward Lake Michigan through the Chicago waterway system. If introduced into Lake Michigan, the Asian carp would likely alter the habitat and food web that support aquatic life throughout the Great Lakes and threaten the 1/5 of the world’s fresh water. In turn, a $7 billion fishing industry and the drinking water of more than 40 million will be placed in serious jeopardy, as will the Great Lakes tourism and recreation industries.
Now that Asian carp DNA have been detected in Lake Michigan, it has become abundantly clear that the state and federal agencies responsible for addressing this threat need to articulate a clear response plan that aggressively and effectively deals with the threat in the short term while moving to implement a permanent long-term solution as quickly as possible.
To date, we have seen only ad hoc solutions that have not been adequate responses to what is now a full-blown crisis. They’ve spent millions of dollars on an electric fish fence that doesn’t work and the largest fish poisoning in American history, but the advance of the carp continues to spiral out of control.
The absence of a plan becomes progressively more unacceptable as the eDNA evidence grows more alarming. Indeed, the line of “concern” seems to regress as each new piece of evidence of the advance of the Asian Carp is confirmed. For instance, at one time the trip wire for implementing emergency actions to stop the Carp’s advance seemed to be Carp presence beyond Lockport. When that line was passed, the trip wire became the electric barriers. When that line was passed and evidence of Carp north of the barrier was found in the CalSag, at the O’Brien Locks, and in the Des Plaines River, it was unclear what further trip wire would be relevant, and steps such as temporary closure of the navigational locks leading to Lake Michigan seemed commensurate to the urgency of the threat. Finally, now that eDNA evidence has been found at the Wilmette, IL sluice gate in North Branch of the Chicago River, and then subsequently in Lake Michigan itself, there seems to be no further possible trip wire for urgent action----except that Mr. Wooley of Fish and Wild Life then suggested that the real concern would be identifying a population of 200 to 400 live Asian Carp in the Lake. There seems to be no rhyme, reason or warrant for these shifting trigger events, and certainly no specific set of actions associated when triggers are sprung. One might be tempted to conclude that it is too late to have a contingency plan with triggers, given that evidence of the Carp has been found in Lake Michigan already---but given the assurances of the scientists that there is still an opportunity to stop the infiltration of a population of fish necessary for establishment in the Great Lakes, it seems necessary and appropriate that a set of agreed-to measurements for fish be established, and a set of actions identified for when specific triggers are reached.
Could this be the week where all of that changes?
Today, unless it is postponed due to the “Snowpocalypse”, Governor Jennifer Granholm of Michigan and Governor Jim Doyle of Wisconsin will travel to the White House to meet with high-level Obama Administration officials, Governor Pat Quinn of Illinois, and others for the so-called “Carp Summit.” (No word yet on what any of the people present will drink at the event.)
We expect that, in connection with the Carp Summit, U.S. EPA and other state and federal agencies will release a new plan for responding to the urgent threat of an Asian carp invasion of the Great Lakes that they are now calling the “Framework.” (The agencies, having formerly referred to themselves as the “Asian Carp Rapid Response Group,” have now decided to call themselves the “Asian Carp Regional Coordinating Committee” – which makes you wonder which realities, exactly, are they acknowledging by removing “Rapid Response” from their name – but I digress.)
The release of this new “Framework” document gives the Administration an opportunity to hit the reset button and get it right this time. Will President Obama be remembered as a President who made protecting and restoring the Great Lakes a national priority, or will he be remembered as the President who let Asian carp colonize the Great Lakes on his watch?
I eagerly await the Framework’s release.
]]>I just got off a conference call in which the Army Corps of Engineers and Illinois officials admitted that new DNA test results show that Asian carp are present in the Calumet River on the South Side of Chicago and Calumet Harbor in Lake Michigan. This follows last week’s announcement that the carp are also present north of Chicago, in Wilmette, IL, which is also directly adjacent to Lake Michigan.
The only response that state and federal officials have to this is “stay the course” and “all options are still on the table.” The agencies want additional funding to work on an electric fish fence that we already know does not work, and they want us to ignore the mounting evidence of a gathering threat that Asian carp are starting to enter the Great Lakes from multiple locations. No one actually knows how close the Asian carp are to establishing a viable population in or near Lake Michigan.
Meanwhile, the Supreme Court weighed in this morning with a one-sentence denial of Michigan’s motion for a preliminary injunction to close the locks and establish short-term barriers to prevent the carp from infiltrating the Lake. The only words from the Court were these:
“The motion for preliminary injunction is denied.”
The Court provided no further explanation for its denial of Michigan’s request, which had been opposed by Illinois, the U.S. Government, and the Metropolitan Water Reclamation District of Greater Chicago (MWRD). Nor did the Court indicate when it would rule on Michigan’s broader request to re-open a lawsuit, which began in the 1920’s when the Great Lakes states sued Illinois over the threats posed by the Chicago Diversion to the health of the Great Lakes ecosystem.
Michigan’s lawsuit thus still awaits further action from the Court. Such action may not occur until February, after the parties have had additional opportunities to brief the remaining issues.
Michigan’s underlying petition to the Court seeks permanent, long-term relief: an expedited process to create a permanent separation between the Great Lakes and Mississippi River ecosystems. We believe that this is the best solution to the threat, and the only real permanent solution that is available. The separation will require reformulation and modernization of the greater Chicago sewage system and intermodal transportation infrastructure that incorporates waterborne commerce with rail and other surface transportation in the region.
Governor Jennifer Granholm of Michigan today called on President Obama to hold a White House summit with all eight Great Lakes governors in order to secure the appropriate level of high-level attention that will be required to break through the logjam.
We support Governor Granholm’s call for a White House summit. Now is not the time for further delay or finger-pointing, it is time for us to figure out the best way to move forward together toward a real solution. Solving the Asian carp crisis will require bold, thoughtful, pragmatic, high-level leadership from the Obama Administration and other state and federal leaders to frame this issue appropriately and move it forward expeditiously. (This could also bring substantial benefits to Chicago, in the form of new public investment in more modern, sustainable transportation and water infrastructure.)
The Army Corps of Engineers is already required by a 2007 law to review such plans for alternatives to their current approach, but they have been slow to get started and are not treating this problem with the urgency that the current crisis demands. On the call today, the Army Corps announced that they are only getting started now with the interagency scoping process necessary to get this feasibility study started. And the Army Corps’ latest estimate is that they will not be able to make a final decision until FY 2014!
That is simply an unacceptable timeframe. Wildly inappropriate delay has marked this debacle from the time the Asian carp threat first appeared, making a serious problem morph into a full blown emergency … which the Corps still seems unable to acknowledge. We need a plan for a real solution today, not four years from now.
]]>In this case, the invading army doesn't come in the form of armed troops... actually, they are fish. But their threat is very real. And this escalation of tactics points not only to a real failure to deal with an advancing threat, but also to an urgent need to rethink how we protect one of our nation's most important resources.
My colleagues Henry Henderson and Josh Mogerman have previously written about the Army Corps of Engineers' electric fish fence boondoggle that is now the only thing keeping giant and voracious Asian carp from invading Lake Michigan and irrevocably altering the Great Lakes ecosystem.
In September, the Army Corps of Engineers announced that the Asian carp had reached Chicagoland. According to the Corps' DNA testing, the carp are now less than one mile from the electric fish fence in the Chicago Sanitary and Ship Canal. The timing couldn't be worse. Despite the fact that the Corps recently added a second, more intense fish fence that has only been operating since April, it needs to be taken down for maintenance soon. When that happens, the Army Corps and Illinois Department of Natural Resources say, they will need to poison a stretch of the waterway with rotenone, a toxic chemical that would kill any fish that are exposed to it. The poison cleanup will take two weeks and $750,000 when all is said and done.
Here's the real kicker: none of the state or federal agencies involved think it's their job to pay for the mess.
But the Army Corps thinks EPA's Great Lakes restoration money is the most logical choice.
I certainly agree that the carp's advance is an emergency and support immediate action, even if that involves a lot of bykill that would otherwise seem senseless and unacceptable. But the idea of using Great Lakes cleanup money to poison the Chicago canal is offensive. We need that money to clean up the polluted waters of the Great Lakes, to fix shorelines, and to restore destroyed habitat. This action runs in the opposite direction of all those goals. It is long past time for us to realize that the electric fish fence has failed. We need a permanent solution that reestablishes the natural barriers between the Mississippi River and the Great Lakes by closing the Chicago Sanitary and Ship Canal - and really, the entire Chicago Diversion - for good.
Need more proof? Well, all that electricity in the Rube Goldberg contraption on the Sanitary Ship Canal might not even address the problem of these giant predators swimming into Lake Michigan. The Asian carp is also eating its way up the Des Plaines River, which runs north of the fish fence within hundreds of yards of the Chicago canal at some points. This means that the Asian carp are just one flood away from making Lake Michigan look like this:
I don't mean to imply that the agencies overseeing this mess are unaware of the problem. They are studying it to death... The Army Corps has said that they are currently studying the feasibility of additional measures. But what, exactly, are they studying? In the Water Resources Act of 2007, Congress directed the Army Corps to conduct
"a feasibility study of the range of options and technologies available to prevent the spread of aquatic nuisance species between the Great Lakes and Mississippi River Basins through the Chicago Sanitary and Ship Canal and other aquatic pathways."
As far as I've been able to tell, the Army Corps has not disclosed publicly the range of "options and technologies" that they are considering. At the same time, the Army Corps seems intent to build a new, third stage of the electric Asian carp fence, so that there can be three walls of electric current coursing through the Chicago canal, instead of only two.
But here is the good news: there are better alternatives available, if we are willing to think big enough.
NRDC has been working for years to develop models for sustainable intermodal facilities in places like the Port of Los Angeles that integrate movement of goods from ships, trucks, and rail in a cleaner and more efficient way. Investing in new sustainable transportation infrastructure would - if done right - create both green jobs and a permanent separation that helps keep the Asian carp (and other invasive species) out of the Great Lakes. It could also help us achieve cleaner air.
The fish army must be repelled. But perhaps we can find a way to do it that doesn't involve poisoning a tributary of the Illinois and Mississippi Rivers twice a year? A real solution to this problem will require political leadership and commitment from the highest levels of the Obama Administration, the State of Illinois, and the halls of Congress. We need to start a process now that will result in pulling the plug on the electric fish fence boondoggle, and putting the Great Lakes on a path toward a more sustainable transportation system.
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