What Michigan's Lawsuit Seeks
A) We are asking the U.S. Supreme Court to either: (1) reopen a case filed decades ago by Michigan and the Great Lakes states against Illinois, challenging the Chicago Diversion project; or (2) open a new case. We are asking for both short-term and long term relief. –In our initial filing we asked for a preliminary injunction requiring locks and other structures to be closed to prevent an Asian carp invasion of the Great Lakes. The lawsuit also seeks long-term relief –permanent separation of the infested waterways from the Lakes.
B) Our first request for an injunction was denied but we have filed a Renewed Motion for Preliminary Injunction. It seeks the same relief requested in our initial motion. It asks the Court to order the Corps, Illinois, and the District to immediately take all available measures to prevent the migration of bighead and silver carp into Lake Michigan including, but not limited to:
a) Closing and ceasing operation of the O'Brien Lock and the Chicago Lock.
b) Operating other water control structures called sluice gates near the Lake – at the O'Brien Lock, the Chicago Controlling Works, and the Wilmette Pumping Station in a manner that will not allow fish to pass into the Lake.
c) Installing interim barriers at other locations, increasing monitoring of carp, and eradicating carp that are found in the waterways.
The renewed motion was filed because eDNA information disclosed by the Corps after the Supreme Court denied our motion, showed that carp were already present in Lake Michigan. The renewed motion also contains an affidavit by the State’s expert, Dr. John Taylor, showing that the claims of economic harm from closing the Chicago area locks are exaggerated, and far outweighed by the economic devastation the carp could visit on the Great Lakes economy. Notably, Michigan is not asking the Court to require measures that would cause flooding or other threats to public safety. Instead, the goal is to immediately require all available measures to reduce the probability that the carp will enter the Lakes, while still protecting public health and safety.
C) The lawsuit also requests the Court to order the Defendants to expeditiously develop and implement plans for a permanent solution to the problems that would ecologically and physically separate the carp-infected waters of the Illinois River basin from the Great Lakes.
Frequently Asked Questions
- Won't closing the locks as
requested in Michigan's Motion for Preliminary Injunction cause widespread
flooding and billions of dollars of property damage in Chicago?
No, for at least three reasons:
- We are asking that the two
sets of locks closest to Lake Michigan – the O'Brien Lock (Calumet
River on the south side of Chicago) and the Chicago Controlling Works
Lock (downtown) – be closed because they provide the most direct means
for carp in the waterways to get into Lake Michigan. We are
not asking that the Lockport Locks – located more than 20 miles
inland – and through which almost all of the stormwater ultimately
flows, be closed.
- The Locks we want closed –
the Chicago and O'Brien Locks – are used primarily for navigation.
They are very rarely opened to discharge stormwater into the Lake.
The Metropolitan Water District's own data show that such flow reversals
into the Lake have occurred only 9 times over the 25 years since 1985, and only 4 of those times at the O'Brien Lock.
- In any event, our Motion specifically
asks that these preventative measures should be ordered in a way that
is "consistent with the protection of the public health and safety."
So, under Michigan's proposed injunction, if one of those rare occasions
occurred where one of the locks needed to be temporarily opened to prevent
flooding; i.e., protect public health and safety, that could still occur.
But, the Locks would otherwise remain closed, reducing the risk that
carp will enter the Lake.
2. No one has actually seen or caught
an Asian carp north (lakeward) of the Corps' electrical barrier system.
Isn't Michigan's claim that Asian carp are in the canal system, only
a few miles from the Lake, based entirely upon questionable, unpublished
"environmental DNA" tests?
There is, in fact, strong and scientifically
reliable evidence that bighead and silver carp are present in the canal
system at multiple locations, including an area near the O'Brien Lock,
less than eight miles from Lake Michigan. Those data were collected
by a team of independent scientists at the University of Notre Dame,
led by Dr. David M. Lodge, a biologist with expertise in invasive species.
Since mid-2009, Dr. Lodge and his team have collected and analyzed hundreds
of water samples from the waterways for the presence of genetic material
specific to and recently shed by living bighead and silver carp, using
recognized scientific methods and quality assurance techniques.
Their investigation has been partially funded by, and reported to the
federal government, which submitted a sworn affidavit from Dr. Lodge
in the U.S. Supreme Court on January 4, 2010: Among other things,
Dr. Lodge reports:
(a) Although our work
is not yet published in a scientific journal (because we have only been
doing it for about seven months), there are at least four reasons for
high confidence that our detections of eDNA from silver and bighead
carp are reliable. [U.S. App. 118a.]
(b) Overall our results
indicate with very high confidence that at least a few live bighead
and silver carp inhabit the Calumet Sag Channel. [U.S. App. 129a.]
(c) The results could
just as well indicate the presence of tens or hundreds
or more individual silver
or bighead carp. [U.S. App. 129a.]
(d) The presence of
living silver and bighead carps north of the electric barriers is most
plausibly explained by failures of the electric barrier to completely
restrict the northward movement of silver and bighead carps. [U.S.
App. 132a.]
(e) [O]ur eDNA results
indicate that at least a few individuals of both silver and bighead
carp have ready access to Lake Michigan via the O’Brien Lock and Dam.
. . . Because the probability of invasion increases the more individual
carp enter Lake Michigan, the theory of invasion biology . . . and rich
experience of managing invasions . . . indicate clearly that there
remains an urgent need to reduce the probability that both silver or
bighead carp individuals can enter Lake Michigan. [U.S. App.
134a; emphasis added.]
In addition, Dr.
Lodge's affidavit reported tentative evidence of bighead and silver
carp in another par of the waterway system—called the North Shore
Channel – near the Wilmette Pumping Station. That finding has
since been confirmed. There are sluice gates at that pumping station
that, when opened, could potentially allow carp to enter Lake Michigan.
Michigan's Motion for Preliminary Injunction also requests that these
gates not be opened except as needed to prevent flooding or otherwise
protect public health and safety.
- Since the Locks were not designed
as fish barriers and, according to the Corps, are not completely watertight,
how can they completely prevent the movement of carp into the Lake?
The goal of Michigan's lawsuit is
to use all available means to reduce the risk that the carp will invade
the Lake. The Corps has not actually established that there are
gaps in the lock structures large enough for adult fish to swim through.
In any event, even if they exist, that misses the point. Clearly,
even if not absolutely watertight, closed gates are far less likely
to allow the passage of fish than gates opened on a regular basis.
4. Since the Corps is in the process
of upgrading its electrical barrier system, planning a barrier to block
flooding between the Des Plaines River and the Canal, and studying the
"efficiency" of the barrier system, doesn't it make more sense
to allow the "expert" federal agency to carry out those implementations
and studies, instead of "prematurely" taking the drastic steps
of limiting the operation of locks and sluice gates?
No, for several reasons. First,
the data collected and reported by the corps and independent scientific
expert, Dr. Lodge, shows that bighead and silver carp have already
moved past the "barrier"
system. Improving the performance of these barriers, and building
structures to block flooding of the carp-infected waters of the Des
Plaines River into the canal system are useful, and important steps,
but they are clearly not sufficient. Second, with all due
respect to the Corps, its bureaucratic proposal to continue to study
the problem for another year or more is not commensurate with the urgency
of the risk to the Lakes and the magnitude of the harm that will result
if the invasion proceeds. Third, given these risks, it makes far
more sense to minimize them now, even in the face of some uncertainty.
As both the U.S. Fish and Wildlife Service and Dr. Lodge have explained,
it is impossible to fully determine the actual number and location of
these fish in a water body, given the inherent limits of measurement
techniques, including fishing and eDNA sampling. As the U.S. Fish
and Wildlife Service stated: "If silver carp were introduced
or spread into new U.S. waters, it is unlikely that the introduction
would be discovered until the numbers were high enough to impact wildlife
and wildlife resources." [Michigan App. 24a.] The present
situation presents a unique opportunity in the long and unfortunate
history of invasive species entering the Great Lakes to prevent an invasion
before it starts.
The United States
and the District have suggested that relief sought by Michigan is somehow
not needed because bighead carp have been detected in lake Erie.
That suggestion is incorrect. It is true that the U.S. Fish and
Wildlife Service has reported a few isolated observations of
bighead carp in Lake Erie in the past and that no self-sustaining population
of these fish in Lake Erie has been documented. That situation
is far different from that new presented in the Illinois River Basin
and the diversion project waterway. First, the rapid, systemic
expansion of bighead and silver carp through the Illinois River Basin
to the canal system is well documented. The Fish and Wildlife
Service, the State of Illinois and scientists generally have recognized
that the water system is a pathway for the Illinois River into Lake
Michigan. By contrast, the Fish and Wildlife Service has inferred
that the isolated observations of bighead carp in Lake Erie were probably
the result of occasional releases by humans of fish kept for food or
bait. Further, Dr. Lodge's affidavit explains that the number
and pattern of eDNA detections of Asian carp in the canal system is
most plausibly explained by migration of live bighead and silver carp
past the "barrier" rather than fish discarded by humans or
other mechanisms such as ballast from barges. [U.S. App. 130a-132a.]
6. Illinois officials and representatives
of barge operators have said that $16 billion worth of cargo is carried
on vessels in the Illinois waterway system. Won't closing locks
as requested by Michigan devastate the economy?
No. To begin
with, it is important to understand that Michigan has asked the Court
to order closure of only two of the three locks in the system: the O'Brien
Lock and Chicago Lock, which are closest to the Lake and thus, provide
the last line of defense. Under Michigan's proposed injunction,
the Lockport Lock, located more than 20 miles inland, through which
much of the barge traffic, including all the barge traffic up the Mississippi
River into the Chicago area, would not be closed. Second,
much of that cargo is now unloaded at locations inland from the O'Brien
and Chicago Locks. Very little barge traffic currently passes through
the Chicago Lock and only 7 million tons of cargo moves through the
O’Brien Lock. This is less than 1% of all freight traffic in the
Chicago region. Third, alternative means of transporting
cargo such as rail and truck, exist or could be adapted if the O'Brien
Lock is closed. For example, this amount of cargo would only
require two additional freight trains
in a region with 500 freight trains coming in each day. It is estimated
that these changes would only increase costs by $70 million in a $521
billion Chicago area economy – less
than 2/100 of a percent. Fourth, the relevant issue is not the
total value of the cargo itself, since the cargo would not be eliminated
but, instead, shifted to alternative modes of transportation.
While closure of the O'Brien and Chicago Locks would disrupt some local
commercial and recreational vessel traffic, there is no plausible evidence
that the economic consequences (e.g., increased transportation costs)
would be anywhere near the figures asserted by Illinois. Indeed,
whatever those economic impacts, they are likely to be orders of magnitude
less than the economic value of the $7 billion
Great Lakes fishery that is threatened by the Asian carp.
7. The Corps of Engineers and the
Metropolitan Water District, not the State of Illinois, operate the
locks and sluice gates. Why is Michigan suing the State of Illinois
in the Supreme Court?
The State of Illinois
was and remains primarily responsible for the Lake Michigan diversion
project that is at the center of threatened Asian carp invasion of the
Great Lakes. Illinois created, implemented, and ultimately controls
the diversion project through which the new artificial waterway between
Lake Michigan and the Illinois River Basin—now a conduit for harmful
invasive species—was established. Thus, the Supreme Court long
ago held, in the original diversion case, that the State of Illinois
"is the primary and responsible defendant." [Wisconsin
v Illinois, 289 U.S. at 399-400.] Moreover, under current
Illinois law, the State of Illinois both controls the diversion and
all fish within its jurisdiction. Indeed, Illinois asserts that
it owns all such fish, including the Asian carp, in its waters.
As such, it is directly and necessarily included in the necessary efforts
to control and eradicate those harmful species.
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