State Of Mich. v. United States Army Corp.S Of Eng'rs
| Decision Date | 02 December 2010 |
| Docket Number | CASE NO.: 10-CV-4457 |
| Parties | STATE OF MICHIGAN, ET AL., Plaintiffs, GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, Intervenor-Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., Defendants, CITY OF CHICAGO, COALITION TO SAVE OUR WATERWAYS, and WENDELLA SIGHTSEEING COMPANY, INC., Intervenor-Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
This litigation involves the Chicago Area Waterway System ("CAWS"), a system of man-made canals and natural waterways that serves as both a navigation link between Lake Michigan and the Mississippi River system and an outlet for the storm water and effluent of the City of Chicago. Plaintiffs are concerned about the spread of invasive silver and bighead carp ("Asian carp") through the CAWS into Lake Michigan. Defendants, the United States Army Corps of Engineers ("Corps") and the Metropolitan Water Reclamation District of Greater Chicago ("District"), have created, maintained, and continue to operate and control facilities within the CAWS that link Illinois waters to Lake Michigan and other connected waters.
On July 19, 2010, the States of Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania (collectively "Plaintiffs" or the "States") filed a complaint against the Corps and the District (collectively "Defendants").1 Plaintiffs ask the Court to issue a preliminary and permanent relief in the form of a mandatory injunction compelling Defendants to take all available measures, consistent with the protection of public health and safety, to prevent the emigration of Asian Carp through the CAWS into Lake Michigan. The most recent2 measures sought by Plaintiffs include, but are not necessarily limited to, the following:
(a) using the best available methods to block the passage of, capture, or kill bighead and silver carp that may be present in the CAWS, especially in those areas north of the O'Brien Lock and Dam;
(b) temporarily closing and ceasing operation of the locks at the O'Brien Lock and Dam and the Chicago River Controlling Works except as needed to protect public health and safety;
(c) installing and continuously maintaining permanent grates or screens, along with any debris removal equipment necessary to prevent blockage or clogging of such grates or screens, on or over the openings to all the sluice gates at the O'Brien Lock and Dam, the Chicago River Controlling Works, and the Wilmette Pumping Station in a manner that conforms to the specifications detailed in Appendix A to the Corps' Interim III Report or otherwise will be as effective at preventing Asian carp from passing through these structures as the grates or screens specified in that Report3;
(d) installing and maintaining block nets or other suitable interim physical barriers to fish passage as needed in the Little Calumet River to prevent the migration of bighead and silver carp into Lake Michigan, in a manner that protects public health and safety;
(e) as a supplement to physical barriers, applying rotenone at strategic locations in the CAWS, especially those areas north of the O'Brien Lock and Dam where bighead and silver carp are most likely to be present, using methods andtechniques best suited to eradicate them and minimize the risk of their movement into Lake Michigan;
(f) continue comprehensive monitoring for bighead and silver carp in the CAWS, including resumed use of environmental DNA testing;
(g) obtaining, at the earliest possible date, bulkheads suitable to allow closure of the O'Brien Lock; and
(h) within 90 days of the entry of the Court's Order on Plaintiffs' motion for preliminary injunction, file with the Court plans to effectuate relief requested by Plaintiffs in paragraph 1, including, as needed, designs, plans, and schedules for installation, operation, and maintenance of the physical barriers described in paragraph 1(d) [] and (e) [block nets in the Little Calumet River].
Plaintiffs also ask the Court to enter an injunction requiring the Corps to expedite the preparation of a feasibility study which develops and evaluates options for the permanent physical separation of the CAWS from Lake Michigan at strategic locations to prevent the transfer of Asian Carp or other invasive species between the Mississippi River Basin and the Great Lakes Basin, and to order Defendants to implement, as soon as possible, permanent measures to physically separate Illinois waters from Lake Michigan.
Having carefully considered the voluminous written submissions of all the parties4 as well as the testimony and argument presented to the Court on August 23, September 7, 8, and 10, and October 18, 2010, the Court determines that Plaintiffs have not met the high burden necessary to obtain a mandatory preliminary injunction. In the face of multi-agency efforts to prevent Asian carp migration-efforts that have only increased and expanded in the months since this lawsuit was filed-Plaintiffs have not shown either a sufficient likelihood of success on the merits of their substantive claims or a sufficient prospect of irreparable harm absent the requested injunction.
The CAWS is an integral part of the Lake Michigan water diversion project that had its genesis more than 100 years ago. As noted above, the CAWS serves as both a navigation link between Lake Michigan and the Mississippi River system and an outlet for the storm water and effluent of the City of Chicago. The canal system extends between Lake Michigan and the Des Plaines River, a tributary of the Illinois River and ultimately of the Mississippi River. The canal system was originally constructed to permit Chicago to dilute and dispose of its waste water without discharging all of it into Lake Michigan. Using the canal system, Illinois redirected the Chicago River, which naturally flowed east into Lake Michigan, to flow west, carried by the canal system into the Des Plaines. The Chicago Harbor Lock and Chicago River Controlling Works ("Chicago Lock and Controlling Works") were constructed at the confluence of the Chicago River and Lake Michigan. The permanent connection between Lake Michigan and the Mississippi drainage basin was made with the completion of the Chicago Sanitary and Ship Canal ("CSSC") in 1900. See Missouri v. Illinois, 200 U.S. 496 (1906). Subsequent construction included the dredging and reversal of the Calumet River, the erection of the Thomas J. O'Brien Lock and Dam ("O'Brien Lock") on that river, and the construction of the Cal-Sag Channel linking the Calumet with the main canal. The waterway system also includes the Grand Calumet and Little Calumet Rivers, which cross the Illinois-Indiana border and provide access to Lake Michigan at points in Indiana.
By statute, the Corps operates and maintains the CSSC to sustain navigation from Chicago Harbor on Lake Michigan to Lockport on the Des Plaines River. See, e.g., Act of Dec. 4, 1981, Pub. L. No. 97-88, § 107, 95 Stat. 1135; Act of July 30, 1983, Pub. L. No. 98-63, Tit. I, Ch. IV, 97 Stat. 301. Vessels enter and exit the Chicago end of the canal system through the O'Brien and Chicago Locks. The Corps operates both locks in accordance with applicable statutes, regulations, and agreements with the District.
Both the Chicago Lock and Controlling Works and the O'Brien Lock are used for flood control purposes and water diversion, pursuant to agreements between the Corps and the District. During severe rain events, the locks and the sluice gates are opened to abate the risk of flooding by drawing water from the canal system into Lake Michigan.5 The Corps owns the sluice gates at the O'Brien Lock and operates them under the direction of the District. The District owns and operates the sluice gates at the Chicago River Controlling Works. The District also owns and operates the Wilmette Pumping Station on the North Shore Channel, which includes pumps and a sluice gate; the Corps has no involvement in the operation of the Wilmette Pumping Station.
Approximately seven million tons of cargo pass through the O'Brien Lock each year, as do more than 19, 000 recreational boats, many of which are docked on the Calumet River and reach Lake Michigan through the lock. Additional cargo, ferry, and recreation boats use the Chicago Lock. The locks also are used by the Coast Guard stations on the Lake Michigan side of the locks in responding to safety emergencies on the canal and in patrolling infrastructure facilities in the river system. The CAWS and its associated structures, as currently maintained and operated by the District and the Corps, provide a potential conduit for the movement of fish and other biota, including Asian carp, between the Illinois River and Lake Michigan at multiple locations on the shore of Lake Michigan.
Several species of carp native to Asia have been imported to the United States for various reasons, including experimental use in controlling algae in aquaculture and wastewater treatment ponds. Two species of Asian carp are of particular concern here: silver carp, which can grow to lengths of three feet and weights of 60 pounds, and bighead carp, which can grow to lengths of five feet and weights approaching 100 pounds. Both silver and bighead carp readily adapt to a variety of environmental conditions, reproduce prolifically, and spread rapidly. Since their escape from ponds in the lower Mississippi River basin, both silver and bighead carp populations have become established in rivers in the Mississippi River Basin, including the Illinois River. Asian carp have substantially disrupted and in some areas largely displaced native fish populations in these rivers, impairing recreational and commercial fishing. Also, because of their large size and jumping ability, silver carp have injured boaters and caused property damage.
It is clear that the potential...
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