On Tuesday, January 19th, the Supreme Court refused to order emergency measures sought by the state of Michigan to stop the migration of the Asian carp toward Lake Michigan. Without comment, the Court refused to issue a preliminary injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of the carp upstream in Illinois rivers. The Court’s order did not dispose of Michigan's other plea, seeking to reopen a decision from 80 years ago. That ruling, a consent decree by the court, allowed Chicago to divert a certain amount of water from the lake. A revision of that decree could still force Chicago to close its locks entirely.
Just hours later, the U.S. Army Corps of Engineers announced that DNA from Asian carp was found in Lake Michigan for the first time. Sampling found 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. These samples were collected on December 8 and recently processed.
Even though the Supreme Court already denied the original motion in January, the ruling was issued a few hours before new evidence revealed that Asian Carp eDNA was discovered in Lake Michigan Therefore, Attorney General Mike Cox announced the filing of a renewed motion with the U.S. Supreme Court that seeks to close the Chicago locks.. Michigan's motion also 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. However, the Supreme Court denied Michigan's renewed request for a preliminary injunction on March 22, 2010.
On April 26, the Supreme Court denied Michigan’s motion to reopen a decision from 80 years ago that allowed Chicago to divert a certain amount of water from the lake. This effectively ends any hope for Michigan and the other Great Lakes states to get the Asian carp case before the Supreme Court. However, this does not preclude other legal options such as a case in state court or a lower federal court. Michigan Attorney General Mike Cox is considering whether to file a new lawsuit in another federal court.
In the meantime, attention will turn to Congress and the Obama administration to address the problem. In February, Governor Jennifer Granholm attended a White House “Carp Summit.” The meeting which included Great Lakes’ Governors and Obama Administration officials from the Environmental Protection Agency, Department of the Interior, U.S. Army Corps of Engineers, and U.S. Coast Guard was to discuss strategies to combat the spread of Asian carp and ensure coordination and the most effective response across all levels of government. The result of the summit is a $78.5 million plan that outlines over 25 short and long-term actions. The Asian Carp Control Strategy Framework (Framework) calls for reduced openings of Chicago’s navigational locks, increased fish collection efforts through electro-shocking and netting operations within the waterway, expedited turnaround times on eDNA verification and doubled testing capacity to 120 samples per week, construction of barriers to address flooding events, additional chemical treatments in the case of barrier failure, and studies and research efforts. The Framework is available at www.asiancarp.org .
Congress has also been getting involved in the Asian Carp debate with multiple hearings as well as the introduction of the CARP Act by U.S. Representative Dave Camp and U.S. Senator Debbie Stabenow. The CARP Act, which stands for Close All Routes and Prevent Asian Carp Today, would:
- Immediately close the barriers and locks into the Great Lakes
- Expedite the installation of interim barriers in rivers where no barriers currently exist
- Enhance existing barriers and monitoring systems to prevent fish from crossing into the Great Lakes
- Grant full authority to the Army Corps of Engineers to eradicate the Asian carp and prevent them from entering the Great Lakes.
A second round of poisoning is scheduled for the Chicago waterway to search for the Asian carp past the electric barrier. On May 20, officials will dump rotenone, a fish-killing poison, into two miles of the Little Calumet River below the O'Brien lock and dam. The purpose is to determine whether - and if so, how many – Asian carp might exist in that location where positive eDNA samples have been taken. The water will be treated in one day, and the recovery phase of the operation is expected to last between four to five days. During that time, the Fish and Wildlife Service, Illinois Department of Natural Resources, and other participating agencies will aim to recover as many fish in the application area as possible to determine the abundance and type of fish present in the treated area. The Illinois Department of Natural Resources closed the O'Brien Lock and Dam in the Cal-Sag Channel for a week while crews cleaned up the remains of approximately 100,000 pounds of dead fish. No Asian carp were recovered.
Additionally, on May 19th, Great Lake’s Attorneys General sent a letter has been sent to Major General John Peabody of the United States Army Corp of Engineers demanding that the Army Corp take certain specific actions regarding the imminent Asian Carp crisis in the Great Lakes. The letter is signed by the Attorneys General of Wisconsin, Michigan, Minnesota, Ohio, and Pennsylvania.
The letter demands five things. First, the letter demands that the Army Corp take more comprehensive action more quickly, commensurate it with the urgency and magnitude of the threat. Second, the letter requests that the Army Corp provide specific information about what is and is not being done and why. Third, the states are requesting that the Army Corp include the knowledgeable natural resource experts in the Great Lakes states in the regional coordinating committee. Fourth, the states have demanded that the Army Corp produce certain documents essential to a comprehensive understanding of the process. And fifth, the letter demands that planning for a permanent solution be accelerated for physically separating the Chicago area water system that is infested with Asian Carp from Lake Michigan.
The letter can be accessed by clicking here.
The U.S. Army Corps of Engineers has conducted two studies focused on enhancing the efficacy of the electric barrier system and released the interim III and IIIA reports for public review on June 3, 2010. "Interim IIIA, Fish Deterrent Barriers, Illinois and Chicago Area Waterways Risk Reduction Study and Integrated Environmental Assessment" considered how technologies such as bubbles, lights and sounds could be used to deter Asian carp movement. USACE is recommending installing one acoustic bubble curtain with strobe lights (ABS fish deterrent) near the Brandon Road Lock and Dam as a demonstration project. The second report, “Interim III, Modified Structures Operations, Chicago Area Waterways Risk Reduction Study and Integrated Environmental Assessment,” evaluated the potential for risk reduction that might be achieved through changes in the operation of the Chicago Area Waterway structures, such as locks, sluice gates, and pumping stations. The Corps found that, in the end, the analysis showed that using measures such as temporary lock closures will do very little to reduce the risk of Asian carp migration. Therefore, the Corps announced that the locks will stay open seven days a week. However, the Corps wants to maintain the ability to temporarily close locks when biologists use fish poisons or other methods to go after the Asian carp. The report’s primary recommendation is to place screens on the outer two sluice gates at the O’Brien Lock and Dam similar to similar screens already placed on sluice gates at the Chicago River Controlling Works. Copies of both reports are available on the Chicago District website at www.lrc.usace.army.mil. |