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Army Corps: "Your Comments Are Important To Us. We'll Get Back To You in Four Years."

2011-09-09T21:56:51Z

Thom Cmar, Attorney, Chicago

The Army Corps announced today the release of three separate reports related to the ongoing Asian carp invasion of Lake Michigan, as I blogged about here. The report that is likely to get the least public attention out of the three that were released today, however, is the one that probably demands it the most: the report that summarizes and purports to respond to the hundreds of individuals who appeared in person at public hearings throughout the country or submitted written comments – not to mention the thousands of individuals who signed on to petitions or joint letters – on the Army Corps’ multi-year study of potential long-term solutions to the threat of Asian carp and other aquatic nuisance species moving between the Great Lakes and Mississippi River watersheds.

The report begins by providing a relatively accurate and even-handed summary of the comments that the Army Corps received. Many of the major issues that the commenters raised are the same ones that I wrote about in my comments to this process: the Corps is saying it will need at least until 2015 to complete its study, but we cannot afford to wait that long. We need the Corps to move forward much more quickly, and to focus on a solution that will solve the invasive species problem permanently by preventing the spread of aquatic invaders moving through the Chicago waterways in both directions (not just half-measures that are only geared toward Asian carp).

But after spending the first twenty pages of the report summarizing these comments, here is all that the Army Corps has to say in response to them:

Public comments received through the GLMRIS scoping process are important to USACE and will be carefully reviewed. The issues, ideas, suggestions, and concerns expressed, will be incorporated into the future [draft Environmental Impact Statement] as is allowed within the authorized scope of this study.

The report later states that the Corps expects to seek public comment again upon release of the draft Environmental Impact Statement in 2015, and that in the meantime we are all welcome to follow the study’s progress on Facebook and Twitter.

Are you kidding me? After a broad regional outcry that they need to narrow the scope of their study and move much more quickly, all that the Army Corps has to say in response is that they intend to keep fiddling while Asian carp invade the Great Lakes?

But at least I can track their progress 140 characters at a time – or challenge them to a game of Farmville.

Army Corps Peer Review Should Put eDNA Skepticism To Rest

2011-09-09T20:00:31Z

Thom Cmar, Attorney, Chicago

The Army Corps announced today the release of three separate reports related to the ongoing Asian carp invasion of Lake Michigan. Much of the Corps’ announcement contained familiar refrains, most notably the Corps’ continued emphatic assertion that its electric fish fence is a reliable defense against the hungry carp’s advance – despite continued positive detections of Asian carp DNA beyond the barriers, as well as ongoing uncertainty in the Corps’ own research into the barriers’ effectiveness.

Within today’s announcement, however, a bright spot stands out: a year and a half after it began, the Army Corps has finally released its “independent peer review” of the environmental DNA (“eDNA”) technique whose results have shown the presence of Asian carp past the electric barriers and even in Lake Michigan itself. The Army Corps peer review report confirms what scientists and environmentalists have been saying all along: that eDNA is a reliable and effective tool for detecting when genetic material unique to Asian carp are present in a water body. To be sure, it doesn’t tell you everything: it doesn’t tell you how many fish might be present or whether those fish might be live or dead. To know that, you have to look at the overall pattern of results and interpret what they mean. David Lodge from the University of Notre Dame and other experts have said that the only plausible explanation for the overall pattern of Asian carp eDNA found in the CAWS is that there are at least a small number of live fish present there.

For almost two years now there has been a concerted effort by industry-funded skeptics of eDNA to discredit the work of the University of Notre Dame scientists who developed the method for use in testing for Asian carp. Today’s Army Corps peer review report should put that skepticism to rest once and for all. Maybe now we can finally get serious about a permanent, long-term solution that will prevent not just Asian carp but also other invasive species from using the CAWS as a highway in both directions.

Fishing for an Asian Carp Needle in a Haystack

2011-08-03T23:28:46Z

Thom Cmar, Attorney, Chicago

The state and federal agencies who collectively participate in the Asian Carp Regional Coordinating Committee have all gone fishin’ this week. It may be August, but this isn’t a pleasure trip: they are looking for live Asian carp in Lake Calumet after recent environmental DNA (“eDNA”) sampling has shown that some of the fish are likely present in the area.

Ramping up the conventional monitoring (fishing and netting) in Lake Calumet is a logical response to these positive eDNA results. Short of poisoning every fish in Lake Calumet, there is not much else that the agencies could be doing at this point… and I can understand the agencies’ not wanting to undertake (and spend money on) another fish poisoning operation at this stage.

The problem, though, is that the Regional Coordinating Committee is once again talking about this fishing operation like it is somehow going to prove whether live Asian carp are present in the area. As I’ve blogged about in the past, the Army Corps and other agencies have frequently downplayed, or written off entirely, the significance of positive eDNA results in an apparent effort to convince the public that they have the invasion under control.

These agencies should know better, though, because both Government experts (such as Duane Chapman of USGS) and outside experts (such as University of Notre Dame Professor David Lodge) have said that the conventional monitoring techniques are unlikely to succeed in catching Asian carp in the Chicago waterway system when they are present only in small numbers – and that eDNA is a better tool for determining whether carp are present.

As John Dettmers of the Great Lakes Fishery Commission recently pointed out in a live chat sponsored by the Detroit Free Press (I imagine John was typing fast, which explains the two typos):

I think that the Asian carp that have been caught in Lake Erie were caught essentially by luck. We know that conventional fishing gear is very ineifficeint [sic] when trying to colelct [sic] Asian carp when only a few are present. Nevertheless, fishing gear does capture Asian carp now and then, as happen[ed] last July in Lake Calumet.

In other words, fishing for Asian carp in the Chicago waterway system is kind of like using a pitchfork to search for a needle in a haystack.

It’s true that the eDNA results, without more, cannot tell you exact number or location of carp that are being detected, but the only plausible explanation for explaining the positive eDNA hits is the presence of some live Asian carp in the Chicago waterway system. Although a number of other possible explanations have been offered to explain the positive eDNA results, I agree with David Lodge’s view: none of those alternative explanations seem plausible, much less likely, given the overall pattern of positive results that has been detected.

So, in sum, I’m glad the agencies are looking for Asian carp in Lake Calumet this week, and I hope they don’t find any. But even if they don’t find any, it doesn’t prove the negative. Just because you don't find a needle in a haystack doesn't necessarily mean it's not there, no matter how much hay you've thrown around.

As long as there’s a direct waterborne path between the two watersheds, they will both face unacceptable risks of further ecological and economic harm from invasive species moving in both directions. That’s why we need to move as quickly as possible toward a permanent solution, a separation barrier that prevents movement of invasive species between the Great Lakes and the Mississippi River Basin. Doing that will require rethinking the entire Chicago waterway system, but as my colleague Henry Henderson wrote about last week, that kind of creative rethink and modernization of Chicago’s moribund wastewater and goods movement infrastructure is long overdue.

Federal Appeals Court Rejects Attack on Great Lakes States' Ballast Water Standards

2011-07-25T15:38:28Z

Thom Cmar, Attorney, Chicago

On Friday, we won another legal battle in the fight to bring protective ballast water standards to the Great Lakes! The federal appeals court in Washington, DC denied a legal challenge by ports and shipping interests to U.S. EPA’s Clean Water Act Vessel General Permit. The industry was challenging the permit because it incorporated state ballast water standards, such as those developed by California, New York, and Michigan, that are more stringent than inadequate federal and international standards. Many states have created their own ballast water requirements because they found that stronger protections were necessary to prevent further harm to their waters from invasive species dumped in vessels’ ballast water.

NRDC joined with three other environmental groups to intervene alongside EPA to help the agency successfully defend its Clean Water Act permit from the shipping industry challenge. In its decision on Friday, the D.C. Circuit held that the Clean Water Act plainly provides states with the authority to create such conditions on a federal permit to protect their water quality standards and requires EPA to incorporate them into the permit. The court rejected each of the industry’s procedural objections to EPA’s permitting process as meritless.

Friday’s decision is well-timed, coming down as many of the same ports and shipping interests are supporting a rider that has been attached to the House Interior-EPA Appropriations Bill that is also targeted at states that have established more stringent ballast water standards than inadequate federal or international requirements. The House rider would apply to seven Great Lakes states (including New York and Michigan) to strip them of *all* EPA funding if they did not withdraw their standards. This punitive measure would not only strip the states of Great Lakes restoration funding through the Great Lakes Restoration Initiative, but it would also strip them of access to any other program funded through EPA’s budget, including funding for hazardous waste cleanup and water infrastructure projects.

Over the last two weeks I’ve been working with other Great Lakes advocates to raise awareness about that this rider. This is no way to legislate, and it would unjustly rob Great Lakes states of essential federal funding.

Army Corps Posts New Positive eDNA Results for Asian Carp Near Lake Michigan

2011-07-20T15:35:26Z

Thom Cmar, Attorney, Chicago

Today I discovered that the Army Corps this week posted on its web site new environmental DNA (or “eDNA”) test results detecting the presence of Asian carp near Lake Michigan. The results reported are from eDNA tests done this summer, between May 10, 2011, and June 27, 2011. There appear to be at least 9 positive results reported, many of which are clustered near Lake Calumet, where a live Asian carp was captured last summer.

These new eDNA results were apparently posted without any public announcement. I’m not surprised, as the Army Corps has been telling everyone for months that “there has been no evidence” that its electric barrier has not worked perfectly to keep Asian carp from invading Lake Michigan. The Army Corps can only get away with saying that by ignoring the eDNA evidence, which clearly shows that at least some Asian carp have made it past the electric barriers in the CAWS and have a free path into Lake Michigan.

As my colleague Josh Mogerman pointed out yesterday in the Detroit Free Press:

"We don't know how much time we have," he said. "We need to stop dragging our heels."

Army Corps Releases Draft Asian Carp Report: Why Was It Kept A Secret For So Long?

2011-05-11T21:52:17Z

Thom Cmar, Attorney, Chicago

Last week the Army Corps finally released the original draft of its report showing that its electric fish fence does not appear to stop small Asian carp from swimming past it and into the Chicago waterway system – and, potentially, Lake Michigan. I previously blogged about our efforts to force the Army Corps to release this report here, here, and here. The draft report was released in response to a Freedom of Information Act (FOIA) request submitted by our friends at the Prairie Rivers Network for the report last October.

After reviewing this draft, I have to ask, why did it take them so long to make this public? Unless I'm missing something, there are no significant differences between this draft and the "final" version the Corps released in March. And there is nothing in this report that could be plausibly described as "deliberative" -- it's just a technical report on the results of scientific experiments.

Now that it is clear that the Crops never had any basis to keep this draft report a secret, why did they sit on it for 7 months instead of releasing it?

Army Corps Announces New Asian Carp Fence... Just Like the Old Fence

2011-04-07T22:26:17Z

Thom Cmar, Attorney, Chicago

The Army Corps of Engineers announced today that they have turned on the juice for the third component of its electric fish fence in the Chicago Area Waterway System (CAWS), the so-called “Barrier IIB,” that is meant to deter the teeming hordes of Asian carp in the Mississippi River Basin from swimming into Lake Michigan, with potentially disastrous consequences for the Great Lakes.

The new component of the electric barrier system will operate along the same parameters as the primary current barrier does (“Barrier IIA”). Less than two weeks ago, the Army Corps reported laboratory tests showing that these parameters do not work against the smallest Asian carp that might be trying to swim across them. The Corps says there’s no reason to worry, though, because they do not think there are small fish close enough to the barriers for anyone to be worried. Haven’t we heard this before? This is the same Army Corps of Engineers that also dismisses the results of the environmental DNA testing they themselves commissioned, which has shown that some Asian carp are likely already in the CAWS past the electric barriers and getting into Lake Michigan.

Kari Lydersen, writing for the OnEarth blog, did a terrific piece last week that explains the Army Corps’ electric barrier report in more detail. This is the same report that I blogged about here that the Corps claimed was still a “draft” and was not planning to release until the Prairie Rivers Network, represented by NRDC, threatened to sue them under the Freedom of Information Act (FOIA) to compel its release. (Our friends at PRN have published their own take on the Corps’ electric barrier report here.) In fact, the Corps still has not released the draft of the report they received from their consultants, Smith-Root Inc. The version they released in March was a “final” version that had been edited by the Corps… we don’t know what changes the Corps might have made to their consultants’ work until we get a copy of that draft. Although the Corps has claimed that it has the right to keep the original technical report a secret to protect its “deliberative process,” it has no basis to do so under FOIA to the extent that what’s in that report is purely factual information about how well the barriers are working.

The Army Corps’ report shows that there are still serious gaps in our knowledge about how well the electric barriers are working… which is troubling when you consider that the Corps seems dead set on continuing to rely on its electric fish fence for many years to come. When you combine the ongoing uncertainties with how well the barriers are repelling small fish, whether steel-hulled barges distort the field in ways that would allow fish to swim across the barriers in their wake, and the safety concerns associated with cranking up the barriers any further, it becomes clear that relying on these barriers is not sustainable over the long term. That’s why the Corps needs to move much more quickly on studying separation of the Great Lakes from the Mississippi River… we may not know exactly how much time we have, but it’s clear that we can’t rely on these barriers indefinitely.

Asian Carp - Shedd Aquarium image by Kate Gardiner via Flickr

Bayshore's "Fish-Killing Machine" Is A Poster Child For Why U.S. EPA Needs To Adopt A Stronger Cooling Water Rule

2011-03-29T22:26:23Z

Thom Cmar, Attorney, Chicago

It isn’t fourth down, but U.S. EPA has sent its punt team on the field.

Yesterday, U.S. EPA released a proposal for reducing fish kills from power plants’ cooling water intakes, as has been required by the Clean Water Act since 1972 but delayed for decades by fierce industry resistance. Older power plants still using outdated “once-through” cooling systems kill massive numbers of fish – millions, sometimes billions, per year – sucking up hundreds of millions of gallons of water in the process from rivers, lakes, and streams and spitting it back out scalding. U.S. EPA’s proposed rule fails to require plants to get rid of this destructive old technology and install closed cycle cooling towers: a widely used and proven technology that can reduce a plant’s water use (and with it, the number of fish killed) by 95% or more.

U.S. EPA’s proposal is a big disappointment for advocates of healthy fisheries and aquatic ecosystems, as my colleague Steve Fleischli writes about here:

Basically, EPA has chosen the path of least resistance by caving into industry pressure and punting this issue to state agencies – agencies that too often lack the resources and the will to stand up to industry on this issue….

***

Experience has shown that a case-by-case approach, as proposed by EPA, simply will not work. Instead, it is guaranteed to mire the Clean Water Act permitting process in an endless cycle of paperwork and litigation that will continue to leave waterbodies across the country unprotected. If any lesson has been learned in the nearly four decades since the Clean Water Act was enacted, it is that many state permit writing agencies lack the resources and expertise to permit power plant intake structures in the absence of national categorical requirements.

There’s no better poster child for why a strong EPA cooling water rule is necessary than the FirstEnergy Bayshore Power Plant in Oregon, Ohio. In the absence of strong national standards from U.S. EPA, the Bayshore plant and a number of other plants ringing Lake Erie have been allowed to continue using once-through cooling.

When operating at full capacity, the Bayshore plant sucks up over 700 million gallons of water per day in the middle of Maumee Bay in Western Lake Erie, the most productive fishery in the Great Lakes. You couldn’t pick a worse place to locate a power plant if you tried.

Bayshore’s fish kill numbers are astounding. As Lake Erie Waterkeeper Sandy Bihn describes it, Bayshore is a “massive fish-killing machine.” When FirstEnergy was required by Ohio EPA to monitor the plant’s fish kills in 2005-06, it found over 60 million adult fish and over 2.5 billion fish eggs and larvae killed that year. And the latest news is even worse: the University of Toledo is conducting a new study of Bayshore’s fish kills that pegs the number of fish eggs and larvae killed at over 12 billion per year.

Dumping all that hot water into Western Lake Erie also takes its toll, likely contributing to foul-smelling, toxic algal blooms and causing further harm to fish populations in a vital but heavily stressed ecosystem.

While U.S. EPA is not proposing to require cooling towers nationally, even under a case-by-case approach it is clear that cooling towers should be required at Bayshore – something that the State of Ohio and FirstEnergy are resisting. U.S. EPA helped Ohio EPA pay for a consultant, TetraTech, which found that cooling towers are the most cost-effective means of reducing both fish kills and heat discharges from the plant. And an economic study released last year found that Bayshore’s costs to the local fishing economy exceeded the net present cost to FirstEnergy of making the switch.

Ohio EPA issued a new Clean Water Act permit to Bayshore in November that requires FirstEnergy to make some reductions in the plant’s fish kills, but far less than cooling towers would achieve. Fortunately, the fight to protect Lake Erie is far from over. NRDC and a number of our partners are continuing to challenge Ohio EPA’s failure to require cooling towers at Bayshore.

As for U.S. EPA’s rule, it is still in the proposal stage: over the next 90 days there is still a chance for the public to tell U.S. EPA to call off its punt team. We need U.S. EPA to issue strong national standards that protect our waters by modernizing our power fleet and set a clear mandate that ensures that states like Ohio bring this unnecessary destruction of our water resources to an end.

UPDATE: Army Corps Announces Release of Electric Fish Fence Report

2011-02-28T17:57:44Z

Thom Cmar, Attorney, Chicago

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.

Army Corps: "Our Electric Fish Fence Works, But You Can't See The Study That Proves It"

2011-02-23T21:31:25Z

Thom Cmar, Attorney, Chicago

"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.

The Army Corps is not allowed to hide from public scrutiny by sitting on facts that an informed public has a right to know.

Great Lakes Restoration Funding Is a "No Brainer" Investment in Our Future

2011-02-15T18:31:14Z

Thom Cmar, Attorney, Chicago

The unfortunate truth these days is that there are few issues on which both Republicans and Democrats agree, especially when it comes to the environment. Great Lakes restoration has been an exception; but now even Great Lakes restoration funding is at risk of becoming a casualty of political food-fighting in Washington, DC.

The Great Lakes are a uniquely vast freshwater ecosystem – representing 20% of the world’s fresh surface water, and providing drinking water to 40 million people – and across the region a remarkable consensus has developed around the need to restore and protect it.

Great Lakes restoration is not just an environmental issue, it’s an economic issue. Recent studies by the Brookings Institution have found that federal investment in cleaning up and protecting the Lakes would provide a 2-to-1 return in economic development to the Great Lakes region. The Great Lakes Restoration Initiative was originally conceived as a 5-year, $2 billion effort that would yield economic dividends to the region for generations to come. Cleaner water and healthier, more resilient ecosystems mean nicer beaches and more productive fisheries. Removing toxic hotspots creates opportunity for a new economy to grow on former brownfield sites.

Funding these important programs is like saving for retirement or educating our kids – it’s a no-brainer, the kind of investment that should be made no matter how tough the economic times. But in the House of Representatives, and even (to a lesser extent) in the President’s budget, Great Lakes funding is on the chopping block.

President Obama released his FY 2012 budget yesterday, even as the House continues to debate funding for FY 2011 (which is now almost half over, without an agreed-upon budget). House Republicans would provide Great Lakes funding at $225 million for FY 2011. President Obama had requested $300 million for FY 2011, and yesterday he requested $350 million for FY 2012.

These may all seem like arbitrary numbers, but failure to fully fund Great Lakes restoration would have real consequences. Fewer restoration dollars means fewer acres of wetlands restored, fewer beaches cleaned up, and less research funded on how to stem the tide of invasive species. You wouldn’t want to only save half the money you need for retirement – and you wouldn’t want your kids to get only half of an education. Why, then, should we only half-fund the Great Lakes Restoration Initiative?

I hope that our Great Lakes congressional Members, on both sides of the aisle, realize that restoration funding is an issue on which they need to stand together to stick up for the future of this region.

Asian Carp Hearings Spread Rapidly Throughout Great Lakes and Mississippi River Basins

2011-02-01T16:34:18Z

Thom Cmar, Attorney, Chicago

Much like the invasive fish itself, hearings on the Army Corps’ multi-year study of potential solutions to the threat of Asian carp and other aquatic nuisance species moving between the Great Lakes and Mississippi River watersheds are spreading rapidly. In an apparent effort to prove that they are listening to the concerns of citizens and business interests throughout the two regions, the Corps has already held hearings in Chicago, Buffalo, Cleveland, Minneapolis, Green Bay, and Traverse City. Still to come is a hearing today in Cincinnati (near my hometown of Middletown, Ohio), hearings next week in Alton, IL (near St. Louis) and Vicksburg, MS, hearings the following week in Milwaukee and New Orleans, and a hearing in Ann Arbor, MI that has been rescheduled to next month.

I had the (perhaps dubious) honor of being the first person to speak at the first of these hearings, in Chicago. In my comments, I emphasized that the Army Corps needs to move much more quickly to complete this important study, which was first directed by Congress in 2007 but which the Corps does not think it will be able to complete until 2015 or later (and even then, believes it would take many more years to implement a solution). We cannot afford to wait that long if we are going to have any chance of preventing Asian carp from colonizing the Great Lakes. NRDC’s own engineers with Shaw Environmental estimate that we could put in place an initial system of physical barriers to block the spread of invasive species much more quickly, using off-the-shelf technology: as soon as 18 months of construction after all of the legal approvals are in. That’s the kind of timeframe we need to be operating on if we are going to prevent our Great Lakes from being taking over by this big, hungry fish.

Why should people who live along the Ohio and Mississippi River care about what happens with the Chicago Waterway System? Because this is not just about Asian carp – it’s about all of the other invasive species that are queued up to follow, in both directions. Chicago’s canals have already been the source of the spread of a number of harmful invasive species that are doing damage throughout the United States. Zebra mussels (and their cousin, quagga mussels) are the poster child for this. After being introduced into the Great Lakes through the ballast water discharges of oceangoing vessels in the late 1980’s, zebra and quagga mussels are now clogging intake pipes and filtering out plankton all the way up and down the Mississippi River… and have even hitch-hiked their way to Lake Mead.

There are at least 8 invasive species now in the Great Lakes that are poised to make the trip through the Chicago canal system into the Mississippi River Basin unless something is done, and done quickly, including the bloody red shrimp, the Eurasian ruffe, and the tubenose goby. Each of these species, if established in the Ohio or Mississippi Rivers, would likely cause further reductions in native fish species and become yet another costly nuisance in our waters.

We need the Army Corps to take quick and effective action to stop these invasive species – but all we’ve gotten so far is interminable meetings and calls for more study. I hope that the good folks in Cincinnati, Alton, Vicksburg, Milwaukee, New Orleans, and Ann Arbor will continue to deliver this message to the Corps. Here are my comments – if you happen to be going to one of the hearings, I hope they can help to guide your statements too!

New Michigan AG Could Play Key Role in Stopping Asian Carp

2011-01-17T06:32:50Z

Thom Cmar, Attorney, Chicago

Last week I got a chance to meet Bill Schuette, Michigan’s new Attorney General, and talk with him about Asian carp. Recently elected, Schuette inherits the lawsuit filed by his predecessor, Mike Cox, which seeks immediate action to keep the invasive fish out of the Great Lakes.

Schuette was looking for input from conservation and fishing groups throughout the region as he decided whether or not to continue the suit, which has drawn ire here in Chicago because of its controversial demand that the court order an indefinite closure of the navigational locks connecting the Chicago waterways with Lake Michigan. During the meeting, many of the conservation groups in the room raised concerns that Mike Cox’s emphasis on seeking closure of the locks – and perceived indifference to what that would mean for Chicago residents – had helped create a hostile, adversarial atmosphere that made it more difficult to make progress on working toward the only real solution to this mess: permanently separating the Great Lakes and Mississippi River watersheds. Schuette listened to our concerns, asked good questions, and promised to move forward with that ultimate goal of a permanent solution in mind. The AG’s interest, engagement and grasp of the issues was great to see and I appreciated his opening of lines of communication.

On Thursday morning, Schuette announced that he would continue the lawsuit, but in doing so he signaled that the rhetoric we saw from his predecessor will be toned down. Gone, it seems, will be Mike Cox’s vilification of the Obama Administration and Illinois. That is a very good thing. The only way that we are going to protect the Great Lakes from Asian carp and prevent the Chicago waterway system from being a two-way highway for invasive species is if the Great Lakes region – including both Michigan and Illinois, both Republicans and Democrats, and both the states and the federal government – are able to find common ground around a plan for separation that re-envisions the Chicago waterways’ critical role in the water and transportation infrastructure of the City and the region, and invests in a long-overdue modernization of that infrastructure in connection with an aggressive plan to establish barriers to stop the Asian carp and other invasive species.

I am heartened that Bill Schuette seems to understand that the Asian carp problem will require cooperation among all the Great Lakes states, including Illinois, to solve. I remain concerned that as long as Michigan’s litigation remains caught up in the political food fight over Chicago’s locks instead of focusing solely on the need to separate the Great Lakes from the Mississippi River as soon as possible, tensions with Illinois will persist and the hard, necessary work on separation will continue to be delayed. But I do admire Schuette and Michigan’s persistence in keeping a fire lit under the folks who should be taking action to safeguard our beloved Lakes. I hope that by staking out a strong stand on Asian carp, Schuette is positioning himself to be part of brokering a lasting solution that will ultimately need to be at least as much a political one as a legal one.

Notre Dame Scientists Publish Peer Reviewed Article on Asian Carp Invasion

2011-01-05T18:05:34Z

Thom Cmar, Attorney, Chicago

The work of the University of Notre Dame research team showing an ongoing Asian carp invasion of Lake Michigan got a big validation today with their publication in Conservation Letters, a peer-reviewed journal.

This publication lends further support to eDNA being a valuable and reliable tool for detecting the presence of Asian carp. We've heard so much criticism over the last year that the eDNA method has never been subjected to peer review... well now it has, and it has passed the scrutiny of at least this one journal. Hopefully this publication -- along with others that are likely to follow -- will finally put the question of the legitimacy of eDNA to rest.

The eDNA has shown us that Asian carp are present in Chicago’s waterways and likely swimming into Lake Michigan. It’s long past time to move beyond talking about whether there’s a real problem here and get serious about solving it.

NRDC published a report last October entitled “Re-Envisioning the Chicago River,” in which we worked with engineers at the Shaw Environmental firm to identify the hydrological and water quality issues that would need to be addressed to create a permanent separation in the Chicago waterway system. Separation is the only reliable solution that will achieve close to 100% prevention of invasive species transfers through the Chicago waterway system – dealing not just with the Asian carp, but with all of the other invasive species that are queued up to follow.

Our report found that separating the two basins doesn’t require a magic bullet; it can be done with off-the-shelf technology, and done relatively quickly. The only thing we’re missing is the political will.

Don't Use Chicago River Pollution As An Excuse To Do Nothing On Asian Carp... Or Anything Else

2010-12-08T23:14:15Z

Thom Cmar, Attorney, Chicago

Is it impossible to prevent Asian carp from invading Lake Michigan… because the Chicago River is too dirty?

Richard Lanyon, Executive Director of the Metropolitan Water Reclamation District (MWRD), seems to think so. Lanyon thinks that Chicago experiences too many combined sewer overflows (CSOs) – in which stormwater floods into an outdated sewer system that also contains untreated human waste, causing it to discharge that bacterial frappe directly into the Chicago River.

Here is what Lanyon is quoted as saying by Great Lakes Echo:

“We would hope hydrological separation doesn’t happen, because we don’t want to put CSOs into Lake Michigan. We have a lot of CSO outflows right downtown, they’d be the first to get into the lake. Who wants to do that?”

In NRDC’s recent “Re-Envisioning the Chicago River” report, we worked with engineers from Shaw Environmental to examine this very issue. According to Shaw’s analysis of the Chicago waterway system, we begin to experience CSOs here in Chicago when we receive as little as two-thirds of an inch of rain.

If separation to stop the Asian carp necessarily required re-reversing the Chicago River to send it back into Lake Michigan, Lanyon would be correct: if one were able to re-reverse the Chicago River today, it would be a massive new source of pollutant loadings to Lake Michigan that would violate Great Lakes water quality standards. This is not only because of the CSO problems, but also because MWRD has been allowed to operate for many years with lax permitting standards for its wastewater treatment plants (that, among other things, have allowed them to avoid disinfecting their effluent before they discharge it).

Add to that MWRD’s abject failure to complete its Tunnel and Reservoir Project (TARP) in a timely manner, as well as MWRD’s refusal to take a serious look at using green infrastructure to reduce CSOs and create neighborhood amenities (as is being done in many other cities, such as Philadelphia and Milwaukee), and you’ve got one seriously screwed up Chicago River – which could take many years to clean up.

Lanyon’s argument that the Chicago River is too polluted to think about putting in barriers to stop invasive species is a red herring, thrown out by someone who does not take the Asian carp threat seriously or accept that it’s a legitimate problem. Statements such as these are designed to make separation of the Great Lakes and Mississippi River to stop Asian carp sound too hard or too complicated to be achievable anytime soon. Given the fierce battle that MWRD has put up to resist efforts by other governmental entities to clean up their operations, it makes you wonder if MWRD has any interest in cleaning up the River at all. MWRD has shown repeatedly that it likes the status quo: being able to use the Chicago River as if it were its own private sewer canal.

In our Chicago River report, we identified the need to think of separation as an iterative process – and as a series of solve-able engineering problems – rather than something that can or should be attempted all at once.

While the CSO pollution issues are critically important to address for the health of the Chicago River and the communities that use it, there is no reason to think that we need to wait for them to be fully resolved before we start the process of moving toward separation. In their technical review of the issues that would need to be addressed for separation to occur, the Shaw engineers found that an initial separation could be done quickly – roughly 18 months of construction, after any public review and final approvals were worked out – if we incorporate into the planning for separation a system of pumps that would allow water to flow with the Chicago waterway system much as it does now while still creating physical barriers in the system that would prevent Asian carp and any other invasive fish species from moving toward Lake Michigan.

This proposed solution would allow the system (with all of its flaws) to continue functioning much as it does now – and Chicago would continue to send its sewage and stormwater away from the City, until such time as we can muster the political will and resources to clean up the River once and for all.

We will never protect the Great Lakes from Asian carp if we don’t get moving on a solution quickly… indeed, far more quickly than the Army Corps of Engineers is currently moving. Our “Re-Envisioning the Chicago River” report shows that separation can be done relatively quickly and cost-effectively, if we work with the existing infrastructure in the waterway system and use readily available, off-the-shelf technology.