Last week, Westlands Water District filed a motion for a temporary restraining order to eliminate pumping restrictions in California’s Bay-Delta estuary that protect endangered salmon and steelhead runs.   Although salmon fishermen, environmentalists and the federal government all opposed the motion, the Court granted it.
High pumping levels causes water flowing down the San Joaquin River and past the Delta pumps to run backwards, away from the ocean and towards the pumps.  Under the biological opinions, pumping is limited by targets for these reverse flows in Old and Middle River, because as reverse flows in Old and Middle River increase, more salmon, delta smelt and other fish are sucked into the pumps and killed.  Of course, the number of fish that are killed at the pumps are a small fraction of those harmed by these high pumping levels and reverse flows (for instance, these reverse flows reduce the likelihood that salmon can successfully migrate out of the Delta even if they don't get sucked into the massive pumps). 
As of last week, the Fish and Wildlife Service thought that delta smelt were safely out of the zone of entrainment and this protection would not be required.  But increasingly negative Old and Middle River flows expands the zone of entrainment in the Delta and pulls more fish into the pumps, where they are killed.   
And after a weekend of increasingly negative OMR flows following the issuance of the TRO, the U.S. Fish and Wildlife Service notified the Court today that more stringent pumping restrictions are necessary to protect other endangered fish species in the Delta.  (Of course, limiting these reverse flows will also provide benefits to salmon and other fish in the Delta, and will benefit fishermen and other jobs and communities that depend on healthy salmon runs). 
It’s quite possible that Westlands’ legal strategy caused the need for even more stringent protections: the increasingly negative reverse flows over the weekend that resulted from their motion apparently resulted in increased numbers of delta smelt, salmon, and other fish being killed at the pumps, which triggered more stringent protections than were required last week.   
If Westlands had not moved to enjoin the very reasonable -5,000 cfs Old and Middle River flow restriction, the Fish and Wildlife Service might never have had to impose more stringent protections.  The end result of their legal strategy may be less water for farmers and cities, and more dead fish -- an outcome that benefits no one, unless you’re trying to create a crisis. 

I got a call last Thursday from a state appeals court in Albany with some great news:  the New York court had issued a decision upholding New York’s tough new ballast water standards against a legal challenge from the ports and shipping industries!  I had been in Albany just before Thanksgiving to argue the appeal, alongside some fantastic colleagues in the New York Attorney General’s office.
Fundamentally, the court’s decision recognizes what we have been arguing all along:  that there is “ample scientific evidence and expert opinion” that invasive species must be prevented from entering and being spread throughout the Great Lakes ecosystem through vessels’ ballast water.  The New York appeals court’s decision affirms the ruling of the trial court in our favor in June 2009, a victory I blogged about over at the Great Lakes Law Blog.  The decision is also consistent with the decision of the federal appeals court in Cincinnati upholding Michigan’s ballast water statute from a similar industry legal challenge, a case that I was also involved in litigating.  At the same time, these victories in individual states only highlight the need for a comprehensive federal solution, and we are continuing to push hard through litigation and advocacy for a strong federal program that combines the relevant expertise and authority of both EPA and the Coast Guard.
Even as I enjoyed hearing news of the New York ballast water victory, I’ve been forced to redouble my efforts in recent days to address an even more urgent invasive species threat:  that of the Asian carp making their way toward Lake Michigan through the Chicago waterway system.  If introduced into Lake Michigan, the Asian carp would likely alter the habitat and food web that support aquatic life throughout the Great Lakes and threaten the 1/5 of the world’s fresh water.  In turn, a $7 billion fishing industry and the drinking water of more than 40 million will be placed in serious jeopardy, as will the Great Lakes tourism and recreation industries.
Now that Asian carp DNA have been detected in Lake Michigan, it has become abundantly clear that the state and federal agencies responsible for addressing this threat need to articulate a clear response plan that aggressively and effectively deals with the threat in the short term while moving to implement a permanent long-term solution as quickly as possible. 
To date, we have seen only ad hoc solutions that have not been adequate responses to what is now a full-blown crisis.  They’ve spent millions of dollars on an electric fish fence that doesn’t work and the largest fish poisoning in American history, but the advance of the carp continues to spiral out of control.
The absence of a plan becomes progressively more unacceptable as the eDNA evidence grows more alarming.  Indeed, the line of “concern” seems to regress as each new piece of evidence of the advance of the Asian Carp is confirmed.  For instance, at one time the trip wire for implementing emergency actions to stop the Carp’s advance seemed to be Carp presence beyond Lockport.  When that line was passed, the trip wire became the electric barriers.  When that line was passed and evidence of Carp north of the barrier was found in the CalSag, at the O’Brien Locks, and in the Des Plaines River, it was unclear what further trip wire would be relevant, and steps such as temporary closure of the navigational locks leading to Lake Michigan seemed commensurate to the urgency of the threat.  Finally, now that eDNA evidence has been found at the Wilmette, IL sluice gate in North Branch of the Chicago River, and then subsequently in Lake Michigan itself, there seems to be no further possible trip wire for urgent action----except that Mr. Wooley of Fish and Wild Life then suggested that the real concern would be identifying a population of 200 to 400 live Asian Carp in the Lake.  There seems to be no rhyme, reason or warrant for these shifting trigger events, and certainly no specific set of actions associated when triggers are sprung.  One might be tempted to conclude that it is too late to have a contingency plan with triggers, given that evidence of the Carp has been found in Lake Michigan already---but given the assurances of the scientists that there is still an opportunity to stop the infiltration of a population of fish necessary for establishment in the Great Lakes, it seems necessary and appropriate that a set of agreed-to measurements for fish be established, and a set of actions identified for when specific triggers are reached.
Could this be the week where all of that changes?
Today, unless it is postponed due to the “Snowpocalypse”, Governor Jennifer Granholm of Michigan and Governor Jim Doyle of Wisconsin will travel to the White House to meet with high-level Obama Administration officials, Governor Pat Quinn of Illinois, and others for the so-called “Carp Summit.”  (No word yet on what any of the people present will drink at the event.)
We expect that, in connection with the Carp Summit, U.S. EPA and other state and federal agencies will release a new plan for responding to the urgent threat of an Asian carp invasion of the Great Lakes that they are now calling the “Framework.”  (The agencies, having formerly referred to themselves as the “Asian Carp Rapid Response Group,” have now decided to call themselves the “Asian Carp Regional Coordinating Committee” – which makes you wonder which realities, exactly, are they acknowledging by removing “Rapid Response” from their name – but I digress.)
The release of this new “Framework” document gives the Administration an opportunity to hit the reset button and get it right this time.  Will President Obama be remembered as a President who made protecting and restoring the Great Lakes a national priority, or will he be remembered as the President who let Asian carp colonize the Great Lakes on his watch?
I eagerly await the Framework’s release.