posted 09-27-2014 12:51 PM ET (US)        

http://www.google.com/url?q=http://elr.info/store/download/99735/8563& sa=U&ei=U-gmVOzxCIeKyATI_IK4Dg&ved=0CC0QFjAE& sig2=W27OmZXtlEfS3uvmDXf-vQ&usg=AFQjCNHPNZL54hb_swtiwHo3Q5zpyeUYxw

Here are some interesting extracts from this published opinion:

In this action, five states bordering the Great Lakes and an Indian tribe assert that the Asian carp either will soon invade, or perhaps already have invaded, the Great Lakes and that they are poised to inflict billions of dollars of damage on the ecosystem. Believing that the responsible units of government have failed in their task of protecting the Great Lakes, the plaintiffs ask us to step in and impose measures to ensure that the carp are forever blocked from the Lakes.

This problem did not develop overnight. Beginning in the early 20th century, state and federal authorities constructed a series of canals and channels that connect Lake Michigan with the Mississippi River. One part of that system is now called the Chicago Area Waterway System (CAWS). It has been vital to the growth and development of the Chicago region and the surrounding Midwest. In addition to reversing the flow of the Chicago River in order to carry Chicago’s wastewater away from, rather than into, Lake Michigan, the CAWS also established a navigable link between two of the country’s most important bodies of water. The CAWS is not the only place where the Mississippi basin and the Great Lakes intersect, but it is the one at issue in our case.

The other part of the problem dates from the 1970s, when aquatic farmers in the southern United States introduced bighead and silver Asian carp to their facilities in the hope that the fish would control unwanted plant growth. See U.S. Environmental Protection Agency, Asian Carp Species, http://yosemite.epa.gov/r10/ECOCOMM.NSF/Invasive+Species/Asian-Carp; National Park Service, Asian Carp Overview, http://www.nps.gov/miss/naturescience/ascarpover.htm. Flooding in the region, however, enabled the carp to move beyond the farms out into open freshwater systems, and ultimately to work their way up the Mississippi River to within six miles of Lake Michigan. See Fisheries and Oceans Canada, Brief History of Asian Carp in North America and Re-lated Initiatives in Canada, http://www.dfo-mpo.gc.ca/media/back-fiche/2012/hq-ac15-eng.htm .

This is far from the first case in which neighboring states have complained about one aspect or another of the CAWS. Immediately after it was constructed, the State of Missouri sued Illinois to stop operations of the Chicago Sanitary and Ship Canal (a major component of the CAWS) because it would cause sewage to flow down the Mississippi River and into Missouri. See Missouri v. Illinois, 200 U.S. 496 (1906). That suit was unsuccessful, but in later years interstate disputes arose over the maximum rate at which Illinois could divert water from Lake Michigan into the CAWS. See, e.g., Wisconsin v. Illinois, 449 U.S. 48 (1980); Wisconsin v. Illinois, 388 U.S. 426 (1967); Wisconsin v. Illinois, 311 U.S. 107 (1940); Wisconsin v. Illinois, 278 U.S. 367 (1929). The case before us presents yet another problem.

In response to the advance of the Asian carp up to the doorstep of the Great Lakes, the States of Michigan, Wisconsin, Minnesota, and Ohio, and the Commonwealth of Pennsylvania, initiated this lawsuit against the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago in an effort to compel action that would prevent the fish from crossing into Lake Michigan. The Grand Traverse Band of Ottawa and Chippewa Indians intervened as a plaintiff. (For convenience, we refer to all plaintiffs as the States, since the Tribe has associated itself with all of the States’ arguments.) The States sought a preliminary injunction that would require the Corps and the District to take a number of aggressive interim measures to maximize the chances of preventing the spread of the carp. See Michigan v. U.S. Army Corps of Eng’rs (Asian Carp I), 667 F.3d 765 (2011). The district court denied that motion, and we affirmed, holding that the States had failed to prove that irreparable injury would occur before the litigation could be resolved, given the measures being undertaken by the responsible agencies.

At that point proceedings resumed in the district court. After further consideration, it dismissed the action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The States have now appealed from that final judgment. It is worth emphasizing that we give the plaintiffs the benefit of the doubt in this situation: “We construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [their] favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Any facts that we mention should be understood in this light.

Since we last saw this case, the threat that the Asian carp pose to Lake Michigan has not diminished. As we did before, we proceed on the assumption that the risk of invasion is a serious one, and that the negative consequences that would result from the establishment of a breeding population in the Great Lakes would be great. Nonetheless, while our analysis differs in significant respects from that of the district court, we ultimately agree with its disposition.

We do not, in particular, adopt the district court’s conclusion that the Corps and the District are “authorized” to operate a navigable waterway no matter what the environmental cost, nor that any such authorization would relieve them of the duty to try to stop the spread of the Asian carp. Instead, we find once again that the States have not alleged facts showing that the Corps and the District are operating the CAWS in a manner that is likely to allow the Asian carp to reach Lake Michigan (emphasis added). As we did before, we leave open the possibility of relief should there come a time when reliable facts show that the carp pose a more immediate threat to the Lakes, or when the Corps and the District slacken their efforts to prevent the passage of the Asian carp out into Lake Michigan.

posted 09-27-2014 01:02 PM ET (US)            

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The linkage of the Mississippi River system to the Great Lakes and the effort to control weeds in southern aquatic farms by importing Asian carp, a voracious non-native fish, have combined to create a situation in which two species of carp have overwhelmed the Mississippi River and its tributaries and threaten to migrate into the Great Lakes. Plaintiffs, five states bordering the Great Lakes and an Indian tribe assert that the Asian carp either will soon invade, or perhaps already have invaded, the Great Lakes and are poised to inflict billions of dollars of damage on the ecosystem. Plaintiffs sued the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago, seeking a preliminary injunction that would require aggressive interim measures to maximize the chances of preventing the spread of the carp. The district court denied that motion; the Seventh Circuit affirmed. The district court then dismissed the case. The Seventh Circuit affirmed, finding that the plaintiffs did not allege facts showing that the Corps and the District are operating in a manner that is likely to allow the Asian carp to reach Lake Michigan.

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They also have a download of the full opinion available at

posted 09-27-2014 02:10 PM ET (US)            

The GLMRIS is conducting a study to present a range of options and technology to prevent the spread of aquatic nuisance species (or ANS) between the Great Lakes basin and the Mississippi River basin by means of aquatic pathways.

The GLMRIS has published a report. The report presents eight alternative plans, and evaluates how the plans will affect the use of the waterways and how they will affect the users of the waterways. The plan also includes advice on how to mitigate the effect of the implementation methods of the plans on the users and uses of the waterways.

The report does not make a recommendation of any plan. The GLMRIS report says that it provides "evaluation criteria" which could be used by decision makers in further evaluation and comparison of the plans.

Of the eight alternative plans considered, the "Plan 1" alternative is to do nothing. Plan 1 provides for no reduction of risk of invasion of aquatic nuisance species into the Great Lakes basin than presently exists.

Plan 2 provides no actual structural changes, but suggests using chemical and education materials to control the spread of ANS.

Plan 3 through Plan 8 provide for combination of nonstructural and structural changes, with each plan requiring various different control structures and methods to be built and operated.

For each estimated plan, an estimated cost of implementation was developed:

Plan 1 = $0
Plan 2 =$68-million
Plan 3 = $15.5-billion
Plan 4 = $7.8-billion
Plan 5 = $18.4-billion
Plan 6 = $15.5-billion
Plan 7 = $15.1-billion
Plan 8 = $8-billion

With regard to who might be "the decision makers" that will decide, it seems that elected officals--politicians--will be likely to become involved. With regard to maintaining water quality or use of water or preservation of water, it may be useful to note the following comments of an informed observer on these decision makers:

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I see Great Lakes politicians bickering among themselves, ultimately threatening the the lakes they hope to save. I see urban voters--with no connection to land, water, or wildlife--who elect their dilettante peers to public office, affecting water policy everywhere.

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posted 09-30-2014 03:47 PM ET (US)            

Greatest Generation lead by Dwight D Eisenhower built most of the interstate highway system within 10 years. Local projects are forecasted to take decades.