Michigan Compromise Reached On Compact & Water Management Bills

Jun 23: Senator Patty Birkholz (R-Saugatuck Twp) and Representative Rebekah Warren (D-Ann Arbor) announced that they had reached consensus on Michigan’s landmark water protection legislative package to adopt the Great Lakes-St. Lawrence River Basin Water Resources Compact and implement a new standard for evaluating large quantity water withdrawals. Birkholz, chair of the Senate Natural Resources and Environmental Affairs Committee said, “This is a great day for the Great Lakes and everyone who lives near them. We started our journey toward water protection more than five years ago when we created the Groundwater Conservation Advisory Council. During that time, we have had one simple mission -- to protect our waters, the water dependent natural resources and the rights of those who use water wisely. The agreement we have reached will help us accomplish this mission.”

While most interest groups are pleased with the compromise, the major unsettled issue remains the lack of a "public trust" doctrine provision that was the central concern of former Governors William Milliken (R) and James Blanchard (D) and many environmental interests [See WIMS 6/13/08]. Governor Milliken said previously, "Without protecting the public trust in our waters, Michigan's sovereign power to safeguard our vital interests against outside forces will be diminished." Others had said without public trust language, the State's and Great Lakes waters are at risk of sale and export because of NAFTA and GATT -- international trade agreement provisions which prevent bans or strict regulation on water once it is a commodity.

Environmental organizations said, "The bipartisan compromise left some shortcomings, but keeps intact core principles. . ." The Great Lakes, Great Michigan coalition members said they would regroup in coming months to fight for additional protections not included in the package. Cyndi Roper of Clean Water Action said, “We are extremely disappointed that the legislature failed to strengthen our important public trust protections, which affirms that water is a public resource that belongs to Michiganders and not to corporations or profit-takers. We intend to revisit this issue.”

In a release from Senator Birkholz, she said, the Great Lakes Compact will develop common measures for each of the eight states in the basin to regulate in-state withdrawals and prohibit out-of-basin water diversions. In addition to the compact, the legislation would adopt the water withdrawal assessment process developed by the groundwater council. The automated point-and-click computer tool will allow new large volume water users to determine if a proposed withdrawal will have an adverse resource impact on state water levels and other natural resources.

Birkholz indicated that, "Once the compact has been approved, Michigan will have done what no other state has accomplished by passing the compact along with a water withdrawal tool based on sound science." Representative Warren, Chair of the House Great Lakes and Environment Committee said, “As protectors of 20 percent of the entire world’s fresh surface water, the actions we take to preserve this great resource will have long-lasting, widespread impact. Michigan’s Great Lakes, inland lakes, and streams play a vital role in our special way of life and are a driving economic force in our state, providing for thousands of jobs in the shipping, agriculture, tourism and manufacturing industries. This plan will keep our most precious natural and economic resource healthy and strong.”

The two legislators said the key changes in the legislation include: Creating language to confirm the State’s existing rights for water resource management and protect private property rights; Clarifying the implementation process of the water withdrawal assessment tool; and Lowering the water withdrawal permitting threshold to one million gallons a day. They said the legislation would protect Michigan's unique and popular trout streams by preventing withdrawals that would cause more than a 3 percent reduction in the stream's thriving fish population; and ensure that new standards for protecting against adverse resource impact will be in effect by February 1, 2009.

The legislation is supported by many organizations, including the Michigan Farm Bureau, Michigan United Conservation Clubs (MUCC), and The Water Works Coalition made up of 15 groups, including the Michigan Chamber of Commerce and Michigan Manufacturers Association; Michigan Environmental Council, Clean Water Action and the Sierra Club.

Doug Roberts, Jr., the director of environmental and energy policy at the Michigan Chamber of Commerce said, “We appreciate the opportunity to work with Sen. Birkholz and Rep. Warren and their willingness to gather input from Michigan’s business community in developing the water compact legislation. From the start, our goal has been to implement a process that continues to foster economic development in Michigan while protecting our state's natural resources for future generations.”

Access a joint release from Senator Birkholz and Representative Warren (click here). Access a second joint release (click here). Access a release from several environmental organizations (click here). Access a release from National Wildlife Federation (click here). Access the status of various state compact legislation from the Council of Great Lakes Governors (click here). Access links to various media reports on the compromise (click here).

Agencies Conduct 13th Annual “Carp Corral/Goby Roundup”

Jun 10: The U.S. Fish and Wildlife Service (FWS) and its Federal, state and regional partners, including Chicago’s Shedd Aquarium, will resume annual search efforts June 18 and 19, in the Illinois Waterway from the Chicago suburbs to near Havana, IL, for three species of invasive fish, as well as for lethal fish pathogens. During the 13th annual “Carp Corral/Goby Roundup,” biologists will estimate the relative abundance and upstream distribution of bighead carp and silver carp -- two types of Asian carps -- and chart the downstream range of the round goby.

This year the U.S. Army Corp of Engineers (USACE) will also be working with the U.S. Fish and Wildlife Service to expand an existing monitoring study of Asian carp movements to an upstream portion of the Illinois Waterway. Bighead and silver carp captured here will be implanted with ultrasonic transmitter tags and then released in order to detect the proximity of these fish to the Aquatic Nuisance Species Dispersal Barrier in Romeoville. The USACE will use information from this tagging study to develop a long-term monitoring plan that will evaluate the effectiveness of the electric barrier. Interconnected man-made channels and natural rivers of the Illinois Waterway System in metropolitan Chicago provide a direct link for water-borne movement of non-native aquatic nuisance species between the Great Lakes and Mississippi River basins. Together these watersheds encompass parts of 31 states and four Canadian provinces.

Sampling will cover nearly 200 miles, more than half the length of the Illinois Waterway, from Alsip downstream to Havana. Round goby are most abundant and likely to be seen at upstream sample sites like Alsip and Lockport while bighead and leaping silver carp are more common and likely to be encountered at a downstream area like LaSalle-Peru, Morris or Havana. Biologists will also collect tissue samples from captured fish to test for disease pathogens such as the non-native spring viremia of carp virus and the viral hemorrhagic septicemia virus, which can be lethal to a number of native fish species.

Viral hemorrhagic septicemia, or VHS, is one of the most feared fish diseases in the world, and has made its way into Lake Michigan. The virus was recently found (May 2008) in the southern basin of this lake for the first time where it killed thousands of round goby that later washed up along the Milwaukee shoreline, less than 100 miles from the Illinois Waterway. Biologists are now more concerned than ever before that the VHS virus could spread from Lake Michigan to the Mississippi and Ohio River basins via the Illinois Waterway.

The “Carp Corral/Goby Roundup” surveillance effort is critical in determining whether Asian carp have moved upstream of an electrical barrier near Romeoville, Ill., toward Lake Michigan, and whether round goby have made their way farther downstream toward the Mississippi River. An electrical fish barrier near Romeoville in the Chicago Sanitary and Ship Canal -- designed to prevent and slow the spread of nonindigenous aquatic species -- has been operational since 2002. This experimental prototype consists of a single array of 14 electrodes. One of the electrodes failed soon after installation. The 13 remaining electrodes are still functional but are wearing out due to corrosion.

Construction of a permanent barrier is complete just downstream from the prototype. University of Wisconsin Sea Grant Institute’s Dr. Phil Moy, co-chair of the Dispersal Barrier Advisory Panel said, “The new barrier has 46 electrodes, has the capability to operate at higher voltage to more effectively repel small fish, and has five- by five-inch steel bar electrodes with a design life of 20 years.” It is hoped that the new barrier will become fully operational later in 2008. Biologists found one bighead carp 15 miles below the electrical barrier in 2007, about 50 miles from Lake Michigan. To date no bighead or silver carp have been collected above the barrier. However, reproducing populations of bighead and silver carp have expanded from lower portions of the Illinois River to as far upstream as the Starved Rock Lock and Dam near Utica.

Access a lengthy release from FWS with further details and links to additional information(click here).

Meetings On Dry Cargo Residue Discharges In The Great Lakes

Jun 6: The Coast Guard announced two public meetings for the May 23, 2008 notice of proposed rulemaking (NPRM) [73 FR 30014-30029] on dry cargo residue (DCR) discharges in the Great Lakes and its supporting Draft Environmental Impact Statement (DEIS) to be held in Duluth, Minnesota, and Cleveland, Ohio, in July 2008. The meetings are scheduled for Duluth, MN, July 15, 2008, 1-5 PM; and Cleveland, OH, July 17, 2008, 1-5 PM. The proposed rule would allow the continued discharge of certain non-toxic and non-hazardous bulk dry cargo residues in the Great Lakes. Existing prohibitions on discharges in certain areas would be continued, and additional sensitive and protected areas would be defined as no-discharge zones. Recordkeeping and reporting requirements would be imposed, and the voluntary use of measures to control residues would be encouraged. Comments and related material must be received on or before July 22, 2008.

Under Coast Guard regulations that implement the Act to Prevent Pollution from Ships, 33 U.S.C. 1901 et seq., DCR is an operational waste and constitutes garbage, the discharge of which into the navigable waters of the United States is prohibited. If these regulations were strictly enforced on the Great Lakes, they would put an end to the practice of cargo sweeping. However, since 1993, Great Lakes ships have operated under a Coast Guard "interim enforcement policy" (IEP) that allows "incidental discharges" of non-toxic and non-hazardous DCR on the Great Lakes. The IEP allows cargo sweeping only in defined waters, most of which are relatively deep and far from shore. Additionally, the IEP prohibits or restricts discharges in special areas that are considered environmentally sensitive.

In 2004, Congress extended for the second time the IEP, this time until September 30, 2008. Section 623 of Public Law 108-293 gave the Coast Guard authority to regulate the discharge of DCR on the Great Lakes, notwithstanding any other law. House Report 108-617, the conference report prepared in support of the 2004 legislation, states: "It is expected that the [IEP] will be made permanent or replaced with an alternative regime that appropriately balances the needs of maritime commerce and environmental protection . . .''

On January 13, 2004, the Coast Guard announced in the Federal Register (69 FR 1994) that, if we could not promulgate new regulations before the expiration of congressional authorization for the IEP, they would begin enforcing a zero discharge policy on the Great Lakes as soon as the IEP expires. Enforcement of such a policy would end the practice of cargo sweeping on the Great Lakes. This could cause economic hardship and require a significant expenditure of Coast Guard resources. We are reluctant to impose such costs if there is no meaningful offsetting benefit to the environment. Therefore, they say, "in exercising our regulatory authority over Great Lakes DCR discharges, we seek an appropriate balance, as Congress intended, between commercial and environmental considerations. We also seek to avoid or minimize any gap during which enforcement of a zero discharge policy takes place by default."

Access the docket for this rulemaking with details on the meetings, the proposed rules, draft EIS and related background information (click here). Access a June 12, article in the Muskegon Chronicle by Jeff Alexander on the DCR issue (click here).

Ohio Nears Final Great Lakes Compact Approval

Jun 10: Republican and Democratic leaders in Ohio have reached a deal and approved legislation to ratify the Great Lakes-St. Lawrence River Basin Water Resources Compact. Governor Ted Strickland has said he will sign the legislation. The National Wildlife Federation praised state leaders for their action. Andy Buchsbaum, regional executive director of the National Wildlife Federation’s (NWF's) Great Lakes office said, “The historic votes by the Ohio House and Senate bring the region a quantum leap closer to protecting the Great Lakes from water diversions outside the region and to promoting water conservation within the region." Once signed by the Governor, Ohio will become the sixth state to pass the water management agreement, joining Illinois, Indiana, Minnesota, New York and Wisconsin.

Endorsed by the eight Great Lakes governors in 2005, the Great Lakes Water Resources Compact must be approved in identical form by each Great Lakes state and consented to by U.S. Congress before becoming legally binding. The states can enact different forms of the implementing legislation to respond to specific state needs.

Access the Ohio legislation (click here). Access the status of various state compact legislation from the Council of Great Lakes Governors (click here). Access a release from NWF (click here).

Climate Change In The Great Lakes

Jun 3: Michigan State University (MSU) has held two recent conferences on “Climate Change in the Great Lakes: Decision Making Under Uncertainty,” with diverse attendees including researchers, decision makers, educators, activists, businesspeople, and citizens. During the conferences, participants identified key messages for decision makers: areas where there is consensus or at least very broad agreement. The key messages relate to (a) effects of climate change in the region; (b) ways of making climate-related decisions given uncertainty; (c) research needs; and (d) prescriptions for action.

Access a MSU report summarizing the conferences (click here). is available at: Access more information including conference presentations (click here).

Illinois Dems Object To Indiana BP Whiting Permit

May 30: U.S. Senator Dick Durbin (D-IL) and Representatives Rahm Emanuel (D-IL), Melissa Bean (D-IL), and Jan Schakowsky (D-IL), urged the Region 5 U.S. EPA Acting Administrator, Bharat Mathur to object to a permit for BP for its Whiting, Indiana refinery expansion that would allow to increase the levels of carbon dioxide and other emissions above previous levels. The permit refinery expansion was issued on May 1, 2008 by the Indiana Department of Environmental Management (IDEM) to BP. On November 29, 2007, EPA Region 5 notified BP Products North America Inc. of alleged violations of multiple Clean Air Act (CAA) requirements at its Whiting, Indiana refinery [See WIMS 11/30/07].

The Illinois Democrats wrote to Mathur saying, “Increased carbon dioxide emissions at Whiting remain a major concern for us. Comments submitted by environmental organizations and others have raised this issue and ways in which it should be addressed in the permitting process. In particular, we have concerns regarding the issues of flaring and the increase of carbon dioxide and other emissions above the previous permit levels. We strongly encourage you to revisit those issues and object to the permit until IDEM and BP have rectified these problems.”

The Illinois members are primarily concerned with IDEM’s position that unplanned flaring does not have to be taken into account when issuing permits under the Clean Air Act. The permit allows BP to operate three new flares and increase the use of some existing flares. Refinery flaring is an enormous source of carbon dioxide and other emissions and there is little doubt that flaring events will occur in emergency and other situations at the expanded refinery site in Whiting. Yet, the permit issued by IDEM earlier this month essentially assumes that the new flares will, for the most part, never be used.

In their letter the Members say, "As a related matter, we are concerned with the failure of the draft operating permit to include a schedule of compliance as required by the Clean Air Act addressing the violations set forth in Region 5’s November 2007 Notice of Violation. We are informed that USEPA has recently taken the position that permitting and enforcement are separate matters, and that permit violations therefore need not be addressed in a Title V permit schedule of compliance. However, Section 503(b)(1) of the Clean Air Act expressly requires that Title V permit applicants “submit with the permit application a compliance plan describing how the source will comply with all applicable requirements under this chapter.”

Access a release from the Members and the complete letter (click here). Access a detailed EPA Enforcement & Compliance history report on this facility (click here). Access extensive detailed information on the BP Whiting air permit from Indiana DEM (click here). Access the BP Whiting website for additional information (click here).