NWF Sues EPA Over Weak Ballast Water General Permit

Jul 10: The National Wildlife Federation (NWF) announced that it is suing the U.S. EPA to force the agency to adopt measures that will effectively stop vessels discharging ballast water from introducing and spreading harmful aquatic invasive species. NWF indicated in a release that ballast water invaders such as zebra mussels, quagga mussels, spiny water fleas and round gobies have turned the Great Lakes ecosystem on its head, altering the food web and threatening the health of native fish and wildlife. Non-native ballast water invaders cost Great Lakes citizens, utilities, cities and businesses at least $200 million annually in damages and control costs.

    NWF initiated the lawsuit in United States Court of Appeals for the District of Columbia Circuit. EPA issued a permit to regulate ballast water discharges in late April [See WIMS 3/28/13 & WIMS 3/29/13], the result of a long legal battle in which conservation organizations forced the Federal agency to comply with the Clean Water Act. NWF says the ensuing permit, however, fails to protect U.S. waters from ballast water invaders.

    Marc Smith, senior policy manager for NWF said, "The EPA's permit will not adequately protect the Great Lakes and other U.S. waters from ballast water invaders. This weak permit leaves the door open for future harm to our environment and economy. We can do better -- and need to do better -- if we are to protect our fish and wildlife and their habitat for future generations."

    On March 28, 2013, when EPA announced the final vessel general permit which covers commercial vessels greater than 79 feet in length, excluding military and recreational vessels, and will replace the 2008  permit on December 19, 2013, when the old permit expires. EPA said the permit regulates 27 specific discharge categories, and will also provide improvements to the efficiency of the permit process, and clarify discharge requirements (see link below for details).

     Access a release from NWF (click here). Access EPA's overall Vessel Discharge website for more information(click here). [#Water, #GLakes]

Latest Council Of Great Lakes Governors' Newsletter

Jul 8: The Council of Great Lakes Governors (CGLG) announced the availability of the July 2013 edition of its newsletter, THE COMPASS. Highlights in the issue include: A Message from Council Co-Chair Illinois Governor Pat Quinn; Governors and Premiers Set New Regional Agenda; Governors and Premiers Create Regional Maritime Initiative; Council Launches Water Partnership; Council to Lead Trade Mission to South America; Great Lakes USA Attends International Pow Wow 2013.

 

    Access the latest and previous issues of the newsletter (click here). Access the CGLG website for more information (click here). [#GLakes]

 

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NOAA Annual HAB Outlook For Western Lake Erie

Jul 2: The National Oceanic and Atmospheric Administration (NOAA) and its research partners predict that the 2013 western Lake Erie harmful algal bloom (HAB) season will have a significant bloom of cyanobacteria, a toxic blue-green algae, this summer. The predicted bloom is expected to be larger than last year, but considerably less than the record-setting 2011 bloom. Bloom impacts will vary across the lake's western basin. This marks the second time NOAA has issued an annual outlook for western Lake Erie. Holly Bamford, Ph.D., NOAA's assistant administrator for the National Ocean Service said, "This annual forecast and NOAA's weekly bulletins provide the most advanced ecological information possible to Great Lakes businesses and resource managers so they can save time and money on the things they do that drive recreational activities and the economy."

Harmful algae blooms were common on western Lake Erie in the 1960s and 1970s. After a lapse of nearly 20 years, they have been steadily increasing over the past decade. As an early warning system, NOAA has issued weekly HABS bulletins for western Lake Erie since 2008 through the National Centers for Coastal Ocean Science (NCCOS). The weekly bulletins will continue in 2013. Jeff Reutter, Ph.D., director of Ohio State University's Sea Grant program and Stone Laboratory said, "This information is critical for tourists, coastal businesses, water treatment plant operators, state and regional natural resource managers and scientists throughout Ohio, the region, and the country. In Ohio, as part of our Phosphorus Task Force II, we have used information from the NOAA model to help us target reductions in the amount of phosphorus going into the lake that would eliminate, or greatly reduce, the HABs."

    The 2013 seasonal forecast, made possible using NOAA models developed by NCCOS scientists, uses an 11-year data set of nutrients flowing into Lake Erie, collected by the Heidelberg University's National Center for Water Quality Research, and analysis of satellite data from the European Space Agency's Envisat. In addition to the satellite monitoring of the lake, NOAA's Great Lakes Environmental Research  Laboratory, Ohio State University's Sea Grant Program and Stone Laboratory, Heidelberg University, the University of Toledo, and Ohio EPA will be collecting key measurements from the lake as the summer progresses. Those results will provide valuable information to regional managers and assist NCCOS scientists in further refining the accuracy of this forecast's models.

    Access a release from NOAA with multiple links to related information (click here). [#GLakes]

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Senators Introduce Great Lakes Protection Act

Jun 26: Senator Carl Levin (D-MI) introduced the Great Lakes Ecological and Economic Protection Act of 2013 (S.1232). Cosponsors included Senators: Mark Kirk (R-IL); Tammy Baldwin (D-WI); Sherrod Brown (D-OH); Dick Durbin (D-IL); Al Franken (D-MN); Amy Klobuchar (D-MN); Charles Schumer (D-NY); and Debbie Stabenow (D-MI). The legislation would authorize the Great Lakes Restoration Initiative at $475 million annually to help continue successful programs to clean up toxic pollution, combat invasive species, restore fish and wildlife habitat and reduce runoff from cities and farms.

    In a Floor statement, Senator Levin said in part, "This bill builds upon the work of a multitude of stakeholders -- environmental organizations; business associations; tribal governments; community leaders; and Federal, state and local officials -- who worked together to craft the Great Lakes Regional Collaboration Strategy, a 2005 plan to guide restoration and protection for the Great Lakes. The legislation we are introducing today would formally authorize the Great Lakes Restoration Initiative (GLRI), an inter-agency program designed to implement the plan articulated in the Collaboration Strategy. 

    "The GLRI is an action-oriented, results-driven initiative targeting the most significant problems in the Great Lakes, including aquatic invasive species, toxics and contaminated sediment, nonpoint source pollution, and habitat and wildlife protection and restoration. While broadly authorized under the Clean Water Act, the GLRI should be specifically authorized in law to clarify its purpose and objectives and to demonstrate support from Congress. Since the GLRI was launched in fiscal year 2010 with $475 million in funding, real progress has been made to restore the health of the Great Lakes: More than a million cubic yards of contaminated sediments have been cleaned up.  More than 20,000 acres of wetland, coastal, upland and island habitat have been restored or enhanced. New technologies are being developed to combat the sea lamprey. Asian carp have been prevented from establishing a sustaining population in the Great Lakes. Hundreds of river miles have been restored to enable free fish passage from the Great Lakes to their spawning grounds. Reduction of nutrient loading from agriculture runoff has lessened occurrences of harmful algal blooms.

    "In addition to authorization of the GLRI, this legislation would reauthorize two existing programs: (1) the Great Lakes Legacy program, which supports the removal of contaminated sediments at more than thirty Areas of Concern (AOCs) across the Great Lakes; and (2) the Great Lakes National Program Office, which handles Great Lakes matters for the EPA. . . We hope the Senate Committee on Environment and Public Works will promptly act on this important legislation, as it did in 2010 when it approved similar legislation."

    The Healing Our Waters Great Lakes (HOW) Coalition issued a release supporting the new bill which they said would help bolster Federal efforts to restore the Great Lakes. Chad Lord, policy director for the Healing Our Waters Great Lakes Coalition, said, "This bill will strengthen federal Great Lakes restoration efforts. Programs like the Great Lakes Restoration Initiative are producing results in communities across the region, but more needs to be done. We commend Sens. Carl Levin, Mark Kirk and other supporters of the Great Lakes Ecological and Economic Protection Act of 2013 for putting forward a bill that will help keep federal restoration efforts on track. We urge the full U.S. Senate to support and pass this bill."

    Access the complete Floor statement (click here). Access a release from HOW (click here). Access legislative details for S.1232 (click here). [GLakes]

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IJC Wants Comments On Two Advisory Boards

Jun 24: The International Joint Commission (IJC) is inviting the public to comment on its proposed functions, structure and member competencies for its two advisory boards under the Great Lakes Water Quality Agreement 2012. The Great Lakes Water Quality Agreement 2012 directs the Commission to create a Great Lakes Water Quality Board (WQB) to be its principal advisor, and a Great Lakes Science Advisory Board (SAB) to inform the Commission and the WQB on scientific issues related to the Agreement.  In keeping with the Commission's view that transparency and public input are valuable to guide its decisions, the Commission is giving the public an opportunity to comment on the proposed detailed functions (i.e., mandate), structure and the competencies required for membership on these two boards. The detailed functions proposed by the Commission are subject to the approval of the two federal governments. The public has 30 days to review and comment. Comments will be accepted until midnight July 24, 2013.

    IJC indicates in a release that the United States and Canada are extraordinarily fortunate to share the Great Lakes, a world-class resource containing one-fifth of all the fresh surface water on earth. The importance of this international treasure was recognized over 40 years ago when the United States and Canada first signed the Great Lakes Water Quality Agreement, committing our two countries to restore and maintain the chemical, physical and biological integrity of the waters of the Great Lakes Basin Ecosystem. An updated Agreement was signed in 2012 and went into force earlier this year and provides a new set of goals that will guide future actions to protect and restore this vital asset.

    Access a release from IJC (click here). Access the consultation materials and provide comments (click here). [#GLakes]

 

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Lake St. Clair Strategic Implementation Plan Finalized

Jun 12: A release from Senator Carl Levin (D-MI) indicates that the U.S. Army Corps of Engineers (USACE) has granted final approval to the Lake St. Clair Strategic Implementation Plan. The plan, which includes scores of specific restoration recommendations, was signed by Assistant Secretary of the Army Jo-Ellen Darcy on Monday, clearing a critical hurdle that will provide an important leg up as Lake St. Clair restoration projects seek federal funding. WIMS was able to obtain a near final version of the plan from USACE and have published the draft on our EcoBizPort.com website (see link below). USACE indicates that the final approved version from HQ, will be posted on their website in the near future. 

    The plan has formally been in the works since 2007, when Representative Sander Levin (D-MI) and Senator Levin (D-MI) wrote a provision into the 2007 Water Resources Development Act (WRDA) that called for the Corps of Engineers to lead a partnership of Lake St. Clair stakeholders in developing a Strategic Implementation Plan (SIP) to come up with specific projects to implement the more than 100 individual recommendations contained in the 2005 Management Plan. The SIP and the process that created it are significant because they took the very general recommendations and goals contained in the 2005 Management Plan and provided a structure for Lake St. Clair stakeholders to move forward with specific restoration projects. The SIP includes scores of specific restoration project recommendations in areas such as conserving and restoring habitat; managing storm water; and using technology to preserve and protect the Lake St. Clair. 

    Approval of the SIP also gives Lake St. Clair restoration projects a leg up when it comes to Federal funding. The 2007 legislation that set the SIP process in motion contained a $20 million authorization to carry out projects developed by the implementation plan. Many Lake St. Clair restoration projects are also eligible for funding through the Great Lakes Restoration Initiative (GLRI) program, which was started three years ago by President Obama. The actual amount of money available for restoration projects depends greatly on how much funding Congress provides to the Corps of Engineers and the GLRI in their annual appropriations bills.

    Rep. Levin said, "Today we take the next big step toward the full restoration of Lake St. Clair. Lake St. Clair and its watershed are worth protecting, and this implementation gives us a new tool to move forward with this effort." Sen. Levin said, "I commend the Army Corps of Engineers and the numerous partners in this effort as their work will help ensure that projects are implemented in a coordinated manner and prioritized to reflect shared goals. The St. Clair River and Lake St. Clair are resources we all celebrate, and their restoration and protection will enable future generations to enjoy this cherished resource." Lt. Col. Robert Ells, district engineer for the USACE Detroit District said, "We are especially pleased to enter into the next phase of developing ecosystem restoration and protection plans for the St. Clair River and Lake St. Clair. The Corps is working with an incredibly energetic, diverse and enthusiastic partnership committed to protecting this precious resource that people who live and play in this region enjoy."

    Access a release from Sen. Levin and link to the USACE approval memo (click here). Access the near final draft SIP (click here). Access USACE planning document website where the final SIP will be posted soon (click here). [GLakes/St.Clair]

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Supreme Court Rules On Out-Of-State Diversions Of Water

Jun 13: In the case of Tarrant Regional Water District. v. Herrmann, in the U.S. Supreme Court, Case No. 11-889. Appealed from the U.S. Court of Appeals, Tenth Circuit [See WIMS 9/27/11]. In this important, unanimous opinion for the High Court, involving out-of-state diversions of water, the Justices indicate that, "The Red River Compact, (or Compact), 94 Stat. 3305, allocates water rights among the States within the Red River basin as it winds through Texas, Oklahoma, Arkansas, and Louisiana. Petitioner Tarrant Regional Water District (Tarrant), a Texas agency, claims that it is entitled to acquire water under the Compact from within Oklahoma and that therefore the Compact preempts several Oklahoma statutes that restrict out-of-state diversions of water. In the alternative, Tarrant argues that the Oklahoma laws are unconstitutional restrictions on interstate commerce. We hold that Tarrant's claims lack merit.    

    The High Court points out that absent an agreement among the States, disputes over the allocation of water are subject to equitable apportionment by the courts, Arizona v. California, 460 U. S. 605, 609 (1983), which often results in protracted and costly legal proceedings. In 1955, to forestall future disputes over the River and its water, Congress authorized the States of Arkansas, Louisiana, Oklahoma, and Texas to negotiate a compact to apportion the water of the Red River basin among themselves. The negotiations lasted over 20 years and finally culminated in the signing of the Red River Compact in 1978. Congress approved the Compact in 1980, transforming it into federal law.

    At issue in this case are rights under the Compact to water located in Oklahoma's portion of subbasin 5 of Reach II. Reach II posed the greatest difficulty to the parties' efforts to reach agreement. The problem was that Louisiana, the farthest downstream State, lacks suitable reservoir sites and therefore cannot store water during high flow periods to meet its future needs. The upstream States (Texas, Oklahoma, and Arkansas), which control the River's flow, were unwilling to release water stored within their own reservoirs for the benefit of any downstream States, like Louisiana. Without any such release, there would be no guaranteed flow of water to Louisiana.

 

    The provisions of the Compact relating to Reach II were crafted to address this problem. Subbasins 1-4 ended in last downstream major damsites controlled by the individual states. Subbasin 5, instead required that water be allowed to flow to Louisiana through the main stem of the River at certain minimum levels, assuring Louisiana an allocation of the River's waters and solving its flow-through problem.

 

    The provision of the Compact central to the present dispute is §5.05(b)(1), which sets the following allocation during times of normal flow: "(1) The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water flowing into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 cubic feet per second [hereinafter CFS] or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS]."

 

    Tarrant proposed to divert the Kiamichi River, at a point located in subbasin 5 of Reach II, before it discharges into the Red River and applied to Oklahoma Water Resources Board (OWRB, the respondent in this case) for a permit. Tarrant knew, however, that Oklahoma would likely deny its permits because various state laws (collectively, the Oklahoma water statutes) effectively prevent out-of-state applicants from taking or diverting water from within Oklahoma's borders.

 

    When Tarrant filed its permit application, it also filed suit against respondents in Federal District Court. Tarrant sought to enjoin enforcement of the Oklahoma water statutes by the OWRB. Tarrant argued that the statutes, and the interpretation of them adopted by Oklahoma's attorney general, were preempted by Federal law and violated the Commerce Clause by discriminating against interstate commerce in water.

 

    The District Court granted summary judgment for the OWRB on both of Tarrant's claims. The Tenth Circuit affirmed. 656 F. 3d 1222, 1250 (2011). The Supreme Court, in its current opinion now affirms the judgment of the Tenth Circuit. The High Court rules, "The Red River Compact does not preempt Oklahoma's water statutes because the Compact creates no cross-border rights in its signatories for these statutes to infringe. Nor do Oklahoma's laws run afoul of the Commerce Clause. We affirm the judgment of the Court of Appeals for the Tenth Circuit."

 

    [Note: The decision supports the rights of states to protect their own water rights and could have important ramifications in existing and future water disputes over Great Lakes water use and out-of-state diversions]. In fact, a number of states concerned about protecting their water rights via various compacts, particularly against Commerce Clause claims, filed an amicus brief in support of OWRB. The states included: CO, ID, IN, MI, NV, NM, and UT.

 

    Access the complete opinion (click here). Access the Supreme Court docket (click here). Access the merit and amicus briefs, including the one from the states above (click here). Access the complete Tenth Circuit opinion (click here). Access more information and analysis on the opinion from the SCOTUS blog (click here). [#Water, #GLakes]

 

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