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State of Michigan v. United States Army Corps of Engineers

August 20, 2010

STATE OF MICHIGAN, ET AL., PLAINTIFFS,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Before the Court are (1) Proposed Intervenor-Defendant City of Chicago's motion to intervene or for leave to participate amicus curiae [34], (2) Proposed Intervenor-Defendant The Coalition to Save Our Waterways' ("Coalition") motion to intervene [54], and (3) Proposed Intervenor-Defendant Wendella Sightseeing Company, Inc.'s ("Wendella") motion to intervene or for leave to participate amicus curiae [63]. For the reasons stated below, all three motions to intervene [34, 54, 63] are granted and the City of Chicago, the Coalition, and Wendella are given leave to intervene as Defendants in this action. This case remains set for oral argument on August 23, 2010, at 9:30 a.m.

I. Background

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 Chicago Area Waterway System ("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 the "States") filed a complaint against the Corps and the District (collectively "Defendants"). Plaintiffs ask the Court to issue a preliminary and permanent injunction enjoining Defendants to take all available measures, consistent with the protection of public health and safety, to prevent the emigration of bighead and silver carp (collectively "Asian Carp") through the CAWS into Lake Michigan. The measures sought by Plaintiffs include, but are not necessarily limited to, the following:

(i) 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;

(ii) installing block nets or other suitable interim physical barriers to fish passage at strategic locations in the Calumet River between Lake Calumet and Calumet Harbor;

(iii) 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;

(iv) temporarily closing the sluice gates at the O'Brien Lock and Dam, the Chicago Controlling Works, and the Wilmette Pumping Station except as needed to protect public health or safety;

(v) installing and maintaining 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 will not allow fish to pass through those structures if the sluice gates are opened;

(vi) 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;

(vii) 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 and techniques best suited to eradicate them and minimize the risk of their movement into Lake Michigan; and

(viii) continuing comprehensive monitoring for bighead and silver carp in the CAWS, including resumed use of environmental DNA testing.

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 so as to prevent the transfer of Asian Carp or other invasive species between the Mississippi River Basin and the Great Lakes Basin, and to enter a judgment requiring Defendants to ...


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