UPDATE: Army Corps Announces Release of Electric Fish Fence Report
UPDATE: Last week, within 48 hours of my filing an appeal of the Army Corps’ denial of Prairie Rivers Network’s FOIA request, I got a call from an attorney for the Army Corps saying that the Corps had decided to finalize and release the Smith-Root report on electric barrier operating parameters “by mid-March” – conveniently timed so that the Army Corps would not have to try to defend its FOIA denial. The Army Corps has also issued a press release that confirms that it now intends to release the report in March (see the penultimate paragraph). This is a small victory for transparency in what has often felt like an opaque decision making process around the Asian carp issue… one in which the Army Corps does not seem to move with the urgency that the threat to the Great Lakes seems to require.
I have little doubt that the combination of Dan Egan’s article in the Milwaukee Journal-Sentinel and our threat of a FOIA lawsuit on behalf of Prairie Rivers Network, played a big role in persuading the Army Corps to release this report more quickly than it originally planned.
Below is the text of my post from last week about this report:
I’ve written here repeatedly about the Army Corps’ refusal to admit that its electric fish fence is not an adequate or reliable defense against Asian carp threatening to colonize the Great Lakes by moving through the Chicago Waterway System into Lake Michigan. Despite repeated positive DNA evidence showing that Asian carp are finding ways past the electric barriers, the Army Corps continues to assume that its science experiment is working, even as it is still studying the barriers’ effectiveness – including what happens when barges cross the barriers (and potentially disrupt the electric field) and whether fish that are radio-tagged and dropped in the waterway are able to swim across it.
It’s remarkable that the Corps is still conducting such critical studies of whether the barrier is actually working, when it has already been operating the barrier for years and is committed to relying on the barrier for many more years to come as the primary means of preventing a potentially devastating Asian carp invasion of the Great Lakes.
At least since last October, the Army Corps has had one of these studies in its hands, by contractors from Smith-Root Inc. who worked at the Corps’ Vicksburg, MS lab to determine how effective the electric barriers should be when operated at different parameters. But the Corps says that the study report is still a draft that it doesn’t have to release because the agency has not yet formally approved it.
Last week, Dan Egan of the Milwaukee Journal-Sentinel reported that the Corps has refused to release this study report even to its own independent technical advisory panel – even though, at the same time, it insists that the report shows that the electric barriers are working to keep Asian carp out of the Great Lakes.
Dan Egan’s reporting also uncovered that the still-secret report does not even attempt to examine whether the electric barriers will work to stop juvenile fish smaller than 6 inches from swimming past it and into Lake Michigan:
"About 6 inches or so were the smallest fish looked at for two volts per inch for those current settings," Army Corps Lt. Col. David Berczek said.
He said the Army Corps didn't conduct tests with smaller fish because officials don't believe there are any fish that size close to the barrier. Smaller fish have less surface area and therefore it takes a bigger jolt to repel them.
Berczek said the Army Corps could turn up the voltage and adjust other operating parameters such as the pulse rate at which the electricity is fired, but that could pose a danger to barge operators plying the canal, and that would mean a new round of safety tests and possibly more safety measures.
And because the Army Corps doesn't believe there are any fish smaller than 6 inches anywhere near the barrier, it isn't about to do that.
In other words, the Army Corps’ current plan for keeping Asian carp out of Lake Michigan is based on a series of assumptions: that the electric barriers are working, that Asian carp DNA found past the barriers does not prove otherwise, and that there are no small juvenile Asian carp currently attempting to cross the barrier.
These are all questionable assumptions, especially the last one. The Government’s own Asian carp expert, Duane Chapman of the USGS, told Dan Egan that it was “a surprise” and “not good” if the Corps was not studying the electric barriers’ effectiveness at stopping juvenile fish. According to Chapman, juvenile fish can swim at least 60 km (about 37 miles) from where they are hatched.
Right now it looks like the carp are still spawning a bit further down the river. But the same (propagule) pressure moving the fish towards the Lake will also move the spawning closer over time. If the Corps’ timeline for studying this issue holds, no real action will occur in the waterways for at least a decade … and all that time spawning will move closer and closer. Are we sure that we will not have spawning less than 60 km away in 10 years?
By refusing to share openly the information it has in its possession about the effectiveness of the electrical barriers, the Army Corps is trying to insulate itself from having its decision to rely on them indefinitely be questioned. This may be convenient for the Corps, but it is contrary to a bedrock principle of our democracy: that agencies of the Government are there to serve us, the public, not the other way around. We have the right to know what our Government is up to, and whether the actions it takes are adequate to protect us from the threats that we face.
Our friends at the Prairie Rivers Network have been asking the Army Corps to release its study of barrier operating parameters under the Freedom of Information Act (FOIA) since the study was delivered to the Corps in October. Last week they learned that the Corps had formally denied their request, and I am now representing the Prairie Rivers Network as we pursue legal remedies to compel the release of this report. Yesterday we took our first step, sending an administrative appeal letter to the Corps asking them to change its mind. If the Corps does not respond within 20 business days, we have the right to take it to court for violating FOIA by refusing to release this report.
The Army Corps is claiming that it doesn’t have to release the report now because doing so would harm its “deliberative process” of deciding what changes, if any, it should make to the electric barrier system. I litigate FOIA cases all the time and this often comes up. Agencies have some legitimate rights to withhold information related to a decision they plan to make but are not yet ready to go public with. But the privilege does not apply to purely factual information, and an agency is not allowed to keep the whole study report from the public even if some small portion of it may be legitimately withheld. To the extent that what’s in the report (or any sections of the report) is just facts about how the electric barriers would operate under different conditions, it should be made public without delay.
The Army Corps is not allowed to hide from public scrutiny by sitting on facts that an informed public has a right to know.
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