Numerous developments afoot in Great Lakes water law

April 11, 2011
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The Grand River may be frozen, but water issues in Michigan and around the Great Lakes have been advancing briskly in the last several weeks.

More Great Lakes restoration funding has flowed into the region, and a number of projects are either underway or scheduled to start around the lakes, as new funding has been proposed.

In Michigan, changes in the structure of DNR/DEQ and new appointments signal new directions on the part of the new governor.

DEQ/DNR split again. In his first executive order, effective March 13, Michigan Gov. Rick Snyder again split the Departments of Environmental Quality and Natural Resources. The DEQ will be headed by Dan Wyant, former head of the Department of Agriculture, and the DNR by Rodney Stokes, a former chief of the Science and Policy Office at the DNR.

The governor has also appointed long-time advocate for the Great Lakes and former state senator Patty Birkholz as director of the Office of the Great Lakes. New MDEQ Director Dan Wyant has announced that DNRE Deputy Director Frank Ruswick will serve as Birkholz's deputy director.

Michigan's legal effort against Asian carp. New Michigan Attorney General Bill Schuette, joined by Birkholz, and the Michigan United Conservation Clubs, has announced that he will continue Michigan’s lawsuit to prevent the movement of Asian carp into the Great Lakes.

The repeated discovery of Asian carp DNA beyond electrical barriers in Chicago, in addition to the discovery of a live carp beyond the barrier, brought together a coalition of five Great Lakes states in the suit, with Wisconsin, Minnesota, Ohio and Pennsylvania joining Michigan last July.

Michigan has appealed a December ruling denying its motion for a preliminary injunction, which sought to close locks and increase monitoring as the underlying case goes forward. The state's appellate brief is due to the Seventh Circuit Court of Appeals by Jan. 26, 2011.

In addition, two pieces of legislation have been introduced in Congress that mirror Michigan’s motion for preliminary injunction. One calls for immediate actions to block the passage of Asian carp into the Great Lakes. Another requires the U.S. Army Corps of Engineers to expedite a study to determine the best way to permanently separate the Mississippi River Basin from Lake Michigan.

Ballast water blues. According to EPA, about 30 percent of the approximately 180 non-native species in the Great Lakes have been introduced in ballast water, including gobies, zebra and quagga mussels, spiny water fleas and most likely viral hemorrhagic septicemia.

While the federal government has been slow to respond to Great Lakes states’ calls for more stringent ballast water regulation, New York has decided to impose its own much stricter standards on ships docking in that state. New York will attempt to implement these standards in January 2012.

It is not clear that piecemeal regulation at the state level will accomplish much — either because ships may avoid New York ports, or because New York may not be able to effectively enforce its requirements. However, New York’s action does call attention to another important route for invasive species at a time when most people’s attention seems to be focused on carp and on the Chicago locks.

A decision in Anglers of the AuSable Inc. Shortly before its majority swung back into conservative hands, Michigan's Supreme Court issued an opinion reversing a 2004 decision that had restricted the ability of citizens to challenge "permitting decisions" of the DEQ on environmental grounds.

In Anglers of the Au Sable v. DEQ, the court affirmed the ability of citizens to challenge DEQ permitting decisions as being harmful to the environment under the Michigan Environmental Protection Act.

Navy to build ships, creating jobs in Michigan. Congress approved the U.S. Navy’s plans to purchase 10 combat ships from Wisconsin shipbuilder Marinette Marine Corp. The contract caps the price per ship at $480 million.

The contract is expected to create several thousand jobs in Michigan and Wisconsin as the work begins in 2011. These are specialty vessels made to operate in waters as shallow as 20 feet and reach speeds topping 46 mph.

$40 million in GLRI grant funds available. By the end of this month, EPA expects to release a competitive announcement (Request For Applications or RFA) requesting the submission of grant applications for approximately $40 million in Great Lakes Restoration Initiative funding.

Full applications will be due approximately 45 days after release of the announcement. This is expected to be the only GLRI funding announcement in fiscal year 2011.

Tim Lundgren is an environmental partner and chair of the Water Law Practice at the law firm of Varnum LLP.

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