Michigan files lawsuit to stop Asian carp

Michigan files lawsuit to stop Asian carp
by Joel Hood, James Janega
Copyright by The Associated Press
December 21, 2009 12:36 PM
http://www.chicagobreakingnews.com/2009/12/michigan-to-file-lawsuit-to-protect-great-lakes-from-asian-carp.html


The state of Michigan filed a lawsuit today asking the U.S. Supreme Court to force Illinois to close Chicago-area locks to try to stop the advancement of invasive Asian carp into the Great Lakes.

"With DNA within six miles of Lake Michigan, now is the time to do it," Michigan Attorney General Mike Cox told the Detroit Free Press at a Monday morning press conference in Detroit. Cox placed some of the blame on the Bush and Obama administrations, saying public officials "haven't acted quickly enough" to keep Asian carp from spreading in Illinois waterways.

Cox's suit names the state of Illinois, the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago. The Army Corps of Engineers, which operates the locks and dams, has spoken publicly about closing them in the hopes of saving the region's $7 billion sport and commercial fishing industry.

"Stopping Asian carp is an economic and environmental necessity for Michigan," Cox said in a statement. "The Great Lakes are an irreplaceable resource. Thousands of jobs are at stake and we will not get a second chance once the carp enter Lake Michigan.

"The actions of Illinois and federal authorities have not been enough to assure us the Lakes are safe. That's why the waterways must be shut down until we are assured that Michigan will be protected."

The suit, filed in the U.S. Supreme Court, asks for the following actions:

Closure of the locks at the O'Brien Lock and Dam and the Chicago Controlling Works;

Operation of the sluice gates at the Wilmette Pumping Station, the O'Brien Lock and Dam, and the Chicago Controlling Works in a manner that will prevent carp from passing into Lake Michigan;

Creation of new barriers to prevent carp from escaping from the Des Plaines River into the Chicago Sanitary and Shipping Canal during flood events, and from getting to Lake Michigan through the Grand and Little Calumet Rivers;
Comprehensive study of the Chicago waterway system to define where and how many carp are in these waters, and to eradicate them;

Action to permanently separate these waterways from the Great Lakes.
The suit comes after Illinois and federal authorities reportedly executed the largest fish kill in Illinois history in response to the discovery of Asian carp DNA just miles from Lake Michigan. That action uncovered a carp near the electrical barrier, causing Cox to call for immediate action to once and for all address the potential devastation of the Great Lakes, before it is too late.

The Army Corps of Engineers has said it's looking at the short-term and long-term effects of shutting the locks and dams, warning that closings would not only disrupt commerce but raise the risk of flooding and threaten water quality for the area.

Col. Vincent Quarles, commander of the Chicago District of the Army Corps of Engineers, said last week the agency is also considering whether additional fish kills, like the one that took place earlier this month in the Chicago Sanitary and Ship Canal near Romeoville, could alleviate some of the immediate threat.

"You've got to consider all options," Quarles said.

The American Waterways Operators, which represents the tug and barge industry, said even a temporary closing of dams would increase shipping costs because commodities now shipped by boat would have to be carried by trucks or trains.

But those costs might be acceptable to save the Great Lakes from such "catastrophic" harm, officials said.

"We're hoping that we're not getting a knee-jerk reaction," said John Kindra, owner of Kindra Lake Towing. The barge and lake tug operation is part of the more than $200 million annual shipping business that stands to be affected by a closing of the Chicago-area locks. "It would affect us. That's our business. It will be very complicated."

"The people that brought this lawsuit should be very aware that there are some 7,000 boaters around Chicago that are going to be very, very affected by this decision," said Ned Dikmen, chairman of the Great Lakes Boating Federation. Those boaters represent an $80 million economic impact to the Chicago area, he said -- and more than half of them have boats in inland storage that would be stranded there if the locks are closed. "There should be a public hearing to see what other options exist before the Supreme Court decides 'Let's close it.' "

Cox went directly to the Supreme Court because it handles disputes between states.

Michigan is seeking to reopen a case dating back more than a century, when Missouri filed suit after Chicago reversed the flow of the Chicago River and began sending sewage-fouled Lake Michigan water south toward the Mississippi River.

After that issue was resolved, several Great Lakes states -- including Michigan --- renewed the suit with a new complaint: Chicago's diversion of water away from the basin was harming the lakes by lowering water levels.

The high court has ruled on the matter numerous times, setting ceilings on the amount of Lake Michigan water Chicago could divert. The present limit is 2.1 billion gallons per day.

Michigan's suit argues that continued operation of the locks represents another potential injury to the lakes. It asks the court to immediately order them closed, and to create new barriers to prevent the carp from entering the ship canal from nearby waterways during floods.

Obama administration officials last week pledged $13 million to prevent carp from bypassing the electronic barrier by migrating between the Des Plaines River and the canal.

The lawsuit also asks the Supreme Court to require a study of the Chicago waterway system to define where and how many carp are in those waters and to eradicate them.

Noah Hall, an assistant professor at Wayne State University's law school, said Michigan has a good chance of prevailing if it can show the potential harm posed by Asian carp would outweigh the benefits of keeping the locks open.

"The carp invasion is a good textbook example of irreparable harm," Hall said.

Illinois Attorney General Lisa Madigan's office was reviewing the suit and had no immediate comment, spokeswoman Natalie Bauer said.

Metropolitan Water Reclamation District spokeswoman Jill Horist called the lawsuit "unfortunate."

"It's unfortunate that there would be an assumption that this would make some positive resolution come sooner than is truly feasible," Horist said. "Even if the locks were closed there's still a variety of ways for DNA or Asian carp to enter Lake Michigan."