GREAT LAKES:

Supreme Court to consider revisiting 1922 water diversion case

The Supreme Court is scheduled to consider at a private conference tomorrow whether it will let Michigan and five other states proceed with a lawsuit that seeks to permanently separate the ecosystems of the Great Lakes and the Mississippi River Basin.

Having already rejected two requests for preliminary action, the justices must now decide whether the nation's highest court is the right venue for the battle over the economic and environmental effects of Chicago's man-made waterways. The lawsuit, filed in December by Michigan Attorney General Mike Cox (R), has drawn heavy public attention because of its focus on invasive Asian carp, imported fish that spread up the Mississippi River and now swim freely within miles of Lake Michigan.

Orders from a Friday conference are usually released the following Monday, so it will likely be announced next week whether the justices will reopen a 90-year-old Supreme Court case involving Illinois' diversion of Lake Michigan water.

"Ever since it was proposed to alter the direction of the flow of the Chicago River, this issue has been tied up in litigation," said Nick Schroeck, executive director of the Detroit-based Great Lakes Environmental Law Center. "It's carp today, but what invasive species is it going to be five or six years from now? What we need is a long-term solution."

Built in the early 20th century, the Chicago Sanitary and Ship Canal allowed Chicago to flush its sewage toward the Mississippi River rather than Lake Michigan. The canal also linked the nation's largest river system to its largest lake system for the first time, providing a key navigational channel for both freight and passengers.

When Wisconsin filed the original lawsuit in 1922, Great Lakes states were concerned that Illinois would take more than its fair share of water from the Great Lakes. Now they're worried that the waterway makes it too easy for invasive species to spread.

Great Lakes states say the carp, known for violently jumping into the air at the sound of an outboard motor, will devastate fisheries and native species. Illinois residents claim that closing all connections to the Mississippi River would impose unfair costs on Chicago's shipping and recreational boating industries. Existing government barriers have worked so far, and there is no guarantee that the fish would thrive in the colder waters of the Great Lakes, they say.

Tests using an experimental technique have detected "environmental DNA" from Asian carp near Lake Michigan, suggesting that some of the fish have breached the electric barrier. Michigan has cited those test results as evidence that existing prevention methods are insufficient to stop the spread of the fish.

But a six-week search that ended in March found no Asian carp beyond the electric barrier, though biologists and commercial fishermen netted more than 1,000 common carp. About 70 miles downstream from Lake Michigan, on the other side of the electric barrier, the biologists caught 40 Asian carp using the same techniques, the Illinois Department of Natural Resources said.

"While it is a good sign that no Asian carp have been found above the electric barrier, the presence of genetic material in this area means that continued vigilance is of the utmost importance," said Sen. Dick Durbin (D-Ill.) in a statement last week. "Working together, we can find a solution that will protect our lakes while preserving jobs and promoting economic activity in the region."

Interstate resource battles

The Asian carp case is a rare lawsuit between states, the circumstance for which Article III of the Constitution created the Supreme Court. Michigan asked in its December lawsuit to assign the case to a special master, who would play the role of a trial by gathering information and making recommendations to the court.

In recent years, those "original jurisdiction" cases have usually focused on resource conflicts.

Three of the last four special master reports to the court involved water disputes. The fourth was Alabama v. North Carolina, a case argued in January that focused on a regional radioactive waste compact (E&ENews PM, Jan. 11).

One of the main questions the Supreme Court must address tomorrow is whether the Asian carp invasion is sufficiently related to water diversion for the court to reopen the existing case.

The case "bears no relation to the prior litigation except that it pertains to the same bodies of water," Solicitor General Elena Kagan wrote in a brief urging the Supreme Court not to reopen the case.

In previous rulings, the Supreme Court "has never specified how or where Illinois must divert its allotted share; it has always left these matters to Illinois," Illinois Attorney General Lisa Madigan (D) wrote. "The subject matter in controversy ... is the amount of water Illinois may divert. It has nothing to do with Asian carp, invasive species, or water entering Lake Michigan."

Schroeck said he is not "overly optimistic" that the court will accept the lawsuit, considering that the justices have already rejected two injunction requests.

But if they reject it, Schroeck said, expect more lawsuits from states, environmental groups and even the government of Canada. Plaintiffs could end up pursuing the case in Illinois state court or in lower federal courts.

Environmental groups have pushed for hydrological separation, which would prevent any water or fish from moving between the Great Lakes and the Mississippi River Basin. That is one of the options being considered by the U.S. Army Corps of Engineers in its ongoing Interbasin Feasibility Study, scheduled to be completed in 2012.

The Chicago-area portion of the study was expedited as part of a $78.5 million federal framework unveiled earlier this year.

"One way or another, the issue's not over," Schroeck said.