Blog of law articles

(BY HUGO)

The possible invasion of the Great Lakes and St-Lawrence River Basin by the Asian Carp has re-ignited a dispute between riparian American States.

This invasive species artificially introduced in Southern U.S.A. for fish farming purposes has colonised the Mississippi and its tributaries since the 1970s.

The Asian Carp is now in a position to invade the Great Lakes basin through the Chicago Sanitary and Ship Canal piercing the continental divide. Recently, DNA traces of the Carp have been found beyond the Canal's electrified barriers blocking access to Lake Michigan.

To prevent colonisation of the Lakes by the Carp, which would wreak havock on their ecosystems, the State of Michigan recently filed a petition to the Supreme Court of the United-States in order to modify the decree governing the Chicago Canal water withdrawal as per Wisconsin et al. v. Illinois et al.

Michigan seeks an order from the Supreme Court to close the locks on the Chicago Canal and ultimatly to modify the means by which water is withdrawn from the Lakes in order to prevent the Asian Carp invasion.

This has generated intense media coverage in the last month (New York Times - ABC News - Great Lakes United). A comprehensive investigation from Dan Egan providing background to the issue was published in 2006 by the Milwaukee Wisconsin Journal Sentinel.

Excellent legal coverage is provided here by Professor Noah Hall, a promient North American water law expert involved as counsel in the dispute.

One issue raised by this dispute pertains to the marginalisation of the two Canadian provinces in the Great Lakes St-Lawrence River Basin, Ontario and Québec. Because the conflict will be settled in the U.S.A. before the Supreme Court in the context of a pre-existing inter-state dispute to which the provinces are not party, the possibility for the Provinces' meaningful involvement in a solution to the problem is remote.

This sheds another light on the consensual nature of the framework for management of the Great Lakes that materialised further to the 13 December 2005 Great Lakes-St Lawrence River Basin Sustainable Water Resources Agreement.

According to article 207, §10 & 11 of the Agreement as well as Section 4.14, §1 & 2 of the 2008 Compact, some current water withdrawals such as the one from the Chicago Canal are still governed by the terms of the United States Supreme Court Decree in Wisconsin et al. v. Illinois et al.

Under these paragraphs, when an application is made to the Supreme Court, States shall seek formal input and use best efforts to facilitate participation of the Provinces to the proceedings, or at least restrain from unreasonably impeding their participation.

An interesting question would be to study the potential use of the recourse provided under Section 7.3 of the Compact by one of the Provinces.