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This new Agreement places an emphasis on studying aquatic ecology to develop solutions to problems of aquatic invasive species and habitat protection. The Agreement also comments on the impact climate change has on the Great Lakes.

Some environmental activists are critical of the GLWQA-4 as being a belated recognition of climate change, that is too soft on detailing the impact of climate change on the hydrogeology of Great Lakes. They believe GLWQA-4 fails to contain sufficient remedial measures and lacks specific goals to combat changing environmental conditions. By contrast prior versions of the Agreement set very specific objectives and measurable goals such as establishing unacceptable concentration levels for mercury, lead and certain pesticides in the lakes.

Proponents of this environmental accord argue that it is an appropriate response to tackling the problems of; invasive species, pollution and climate change. They specifically point to a positive history of improving lake conditions. For example, when GLWQA was initially signed forty years ago, Lake Erie was in a significant state of decline but the lake has vastly improved, which means a reduction in phosphorous levels in Lake Erie.

These bi-national efforts to protect the chemical, physical and biological integrity of the waters of the Great Lakes are overseen by the International Joint Commission (IJC) which advises the U.S. EPA and Environment Canada on establishing policy, science and action. The International Joint Commission shares information and assess progress on their priority issues of protecting nearshore environment, aquatic invasive species, habitat degradation and impact of climate change. These priorities are the focus of IJC’s continuing efforts to limit threats to public health and the environment in the Great Lakes Basin from harmful algae, toxic chemicals and discharges from vessels. Lake conditions will continue to be monitored and studied with progress reports made public every three years, at the direction of the IJC.

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The Tarrant case is a dispute between Texas (Tarrant, Texas Regional Water District) and Oklahoma over water located in the Red River. The Texas Water District believes it has a right to access water in the Red River in Oklahoma pursuant to an agreement signed by Texas, Oklahoma, Arkansas and Louisiana (the “Red River Compact”). Siding with Oklahoma, the lower agreed that Texas is only guaranteed a certain minimum downstream flow under the Compact. In this context, the case appears to have very little to do with the compacts governing water use within the Great Lakes basin.

However, it’s the Water District’s constitutional argument that the Great Lakes States and Canada should pay attention to. The Water District claims that the “protectionist” character of the Red River Compact violates the dormant Commerce Clause of the U.S. Constitution. The Commerce Clause of Article 1 of the U.S Constitution gives Congress the exclusive authority to regulate interstate commerce. The dormant Commerce Clause is the legal theory that because Congress regulates interstate commerce, States cannot enact legislation that unreasonably restricts interstate commerce and prevents States from being “protectionist” with their natural resources.

According to the Water District, the Supreme Court has consistently required that Congress unambiguously acknowledge and approve a statute’s or a Compact’s unreasonable restrictions on interstate commerce and cited Sporhase v. Nebraska, 458 U.S. 941 (1982) and South-Central Timber v. Wunnicke, 467 U.S. 82 (1984) in support of its position. In the Water District’s view, Congress has to explicitly approve the restrictive nature of the Compact and Congress’ intent cannot be gleaned by looking at the restrictive language in the Red River Compact as a whole.

The two main compacts affecting the Great Lakes are the Great Lakes Charter and the Great Lakes St. Lawrence River Basin Water Resources Compact. A detailed description of the scope of each is beyond the intent of this article, but the following provides a brief summary of each:

• Great Lakes Charter / Annex 2001. Established a cooperative arrangement between the Great Lakes States and Ontario and Quebec whereby each party agreed to provide notice to each other and to consult on any proposed diversions of water from the Great Lakes Basin.
• Great Lakes – St. Lawrence River Basin Sustainable Water Resources Agreement / Great Lakes St. Lawrence River Basin Water Resources Compact. Established the structure that the Great Lakes States and Provinces use to manage water withdrawals from the Great Lakes Basin. In particular, the agreements call for an outright ban on new diversions of water from the Basin and grant only limited withdrawals for use by communities within the Basin. The agreements are managed by two governing bodies: the Great Lakes – St. Lawrence Water Resource Regional Body and the Great Lakes – St. Lawrence River Basin Water Resources Council. Congress consented to and approved the Water Resources Compact in 2008 by enacting Public Law 110-342.

Depending on how the Supreme Court rules in the Tarrant case, if the Red River Compact falls, it could put the Great Lakes Compacts on shaky ground. Although Congress approved the Compact in Public Law 110-342 in 2008, it did not make any statement that it was explicitly authorizing the Compacts’ unreasonable restraint on interstate commerce. Although such an intent could be inferred from Congress’ approval of a Compact that clearly calls for a ban on out-of-Basin diversions, this is the type of argument that the Tarrant case has called into question. Therefore, if the Supreme Court adopts the position of the Texas Water District in the Tarrant case, the Great Lakes Water Resources Compact could be subject to a challenge by a non-Great Lakes State that was interested in establishing a pipeline from the Great Lakes to an arid out-of-Basin area.

Such an outcome could be like manna from heaven for southern arid States as they might argue like the Water District in the Tarrant case:

” [The strain on western water supplies] makes appropriations by arid western states from water rich neighboring states essential, but by encouraging the ‘tendencies toward economic balkanization’ that the Commerce Clause was intended to prevent, the decision below may make such appropriations effectively impossible. Localities blessed with substantial water reserves now are free, under the Tenth Circuit’s rule, to hoard water while their immediate neighbors go dry.” Pet. at 26.

Clearly, with water supplies becoming more scarce in arid States, they have an increased interest in tapping into States with abundant water resources. We will track this case and provide more information when it becomes available.

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Michigan residents are paying close attention to gas and pipeline transport issues in the region because of our water resources.

What is the main issue in Michigan? Two words – groundwater withdrawal. Many Michigan rivers and streams are fed by groundwater. With fracking pads using up to 20 million gallons of water, the concern is fracking near waterbodies will result in reducing water levels to a point that fishing and boating will be adversely impacted. Recently, because of local opposition to oil and gas leases along the “Holy Waters” section of the AuSable River, the DNR designated those leases as non-production leases. In addition, the sensitivity of this issue for Michigan residents has prompted the MDEQ to re-evaluate its fracking rules.

Michigan residents are also concerned about oil transport through the Great Lakes region. Companies like Enbridge are building or expanding pipelines in Michigan to handle the increased production of oil elsewhere. There are also plans to build an oil shipping port in Superior Wisconsin so that up to 35,000 barrels (about 1.4 million gallons) of oil from Alberta’s tar sands can be shipped to refineries around the Great Lakes.

As many recall, in 2010 one of Enbridge’s oil pipelines near Marshall, Michigan ruptured spilling over one million gallons (about 24,000 barrels) of diluted bitumen (“dilbit”) oil into the Kalamazoo River – a spill that Enbridge is still cleaning up. While Michigan residents understand the need for oil, they are not interested in a repeat of the Enbridge spill – especially one that would involve one of the Great Lakes.

Although water is abundant around the Great Lakes, it is used by many for recreational purposes in addition to industrial/commercial uses. As a result, there is significant interest and demands for it to be managed so that it can be enjoyed by the greatest number of people.

The post The United States of Energy (Part 2): Concerns in Michigan and the Great Lakes appeared first on Dawda PLC.

Invasive species are non-native plants and animals that enter the Michigan environment. Typically, these species are hardier than some of our native flora and fauna and are more successful in accessing food and habitat, thereby crowding out native species. Many times, the native species have no known local predators in the food chain, particularly as they are “out of their element”. The end result is that invasive species pose a significant risk to native species and have a potentially huge impact on our region’s ecology, animal life, sometimes even affecting tourism and public health.

Invasive species arrive in Michigan through various channels. One culprit appears to be ballast water from ships that have been on the world’s oceans. When these large boats need to adjust their weight to improve stability, the ship releases ballast water. The containers for ballast water are supposed to be sealed to prevent the ballast water from escaping. If this is not possible, the ballast water is to be transferred to an auxiliary sealed ballast water containers.

The Coast Guard inspects ballast water containers; nevertheless, sometimes the sealants fail. As these defective ships arrive at ports, their ballast water is released into oceans, lakes and rivers. Oftentimes, the ballast water contains seeds of invasive plants, eggs of invasive species or full grown specimens. Because Michigan is part of the Great Lakes waterways, which feed many rivers and even more creeks, once invasive species enter the water, they can reproduce and travel quite far. Invasive species enter Michigan through other means: through shipped material, via nurseries and live animal purveyors.

A recent invasive plant to crop up in Michigan is parrot feather, which is sold commercially as a filler for aquariums. Parrot feather, while seemingly innocuous, can be prolific and chokes out native reeds, grasses and plants and can be difficult to eradicate. Parrot feather can clog navigable water, negatively impacting water sports and shoreline ecology. It is illegal in Michigan to possess, transport or release the species. Parrot feather has been found in a detention pond in Wayne County and an early effort to get rid of it appears to have been successful.

There are a number of invasive animal species that have appeared in Michigan. Probably the most infamous is the Asian carp. In addition, the emerald ash borer wreaked havoc with the ash tree population all over Michigan. Now Michigan researchers from Central Michigan University and the University of Notre Dame have published findings that bait fish vendors, who are lightly regulated, may be inadvertently introducing invasive species, particularly the dreaded Asian carp into Michigan waterways. DNA of invasive species, including Asian carp, were found in minnow bait samples at 27 bait shops in Michigan. Fishermen are urged not to dump unused bait into the water, a practice which could easily introduce invasive species.

Invasive Species legislation is still largely being handled at the state level, although there is a growing regional, national and even international collaboration. Recently, Governor Andrew Cuomo of New York signed legislation requiring boat owners to clean, drain and dry boats and trailers of all visible plant and animal matters both prior to launches and after pulling watercraft out of the water. States, provincial leaders and federal regulatory authorities are beginning to recognize that coordinated efforts will be critical, as there are so many pathways for invasion.

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