On Wednesday, October 3, the Supreme Court will hear oral arguments in the case of the Arkansas Game & Fish Commission v. the United States to decide whether numerous water releases by the Army Corps of Engineers can be considered a prohibited "takings" under the Fifth Amendment of the Constitution. The decision is being closely watched by property rights activists, local governments, and other states to determine whether "temporary" discharges directed by the Corps can be considered takings that require compensation like other permanent government-controlled flooding events.

Water is critically important to Michigan. “If you ask most people in Michigan about the importance of water, they would say, ‘it’s the essence of our being’ or ‘it’s the essence of our living’ or ‘it’s the essence of our life,'” said Patty Birkholz, a former state senator and current director of the Michigan Office of the Great Lakes. Just look at the state—it touches four of the five Great Lakes and is almost completely surrounded by water. Agriculture, manufacturing and tourism—the state’s three largest industries—depend on the Great Lakes.

The Council of State Governments recently joined briefs supporting state and local government in two cases heading to the U.S. Supreme Court. The briefs, filed by the State and Local Legal Center, both involve the interpretation of the Clean Water Act.

Stateline Midwest ~ September 2012

First came the report from a binational group of Great Lakes scientists exploring the risk of Asian carp entering the freshwater system. Yes, the study concluded, the invasive species would likely survive and, within a decade, spread to all five Great Lakes. And yes, the Asian carp’s ecological impact would likely be severe. Then, days later, came news that Lake Erie water samples, two from Michigan’s North Maumee Bay and four from Ohio’s Sandusky Bay, tested positive for the presence of Asian carp environmental DNA.

States have been reclaiming and restoring thousands of abandoned mine sites that pre-existed federal environmental laws. To cope with the environmental and public safety threats they pose, Congress passed legislation in the late 1970s charging fees for coal production that were disbursed back to states for remediation efforts. Recent changes made by the Transportation Reauthorization bill have altered and cut the payment structure for many states still dealing with the long-term ramifications of abandoned mines.

So far the most controversial case the U.S. Supreme Court has accepted for its October 2012 term involves the University of Texas-Austin’s affirmative action plan.  Will it take a gay marriage case is the big question.  If the Court’s objective is to lie low after deciding two particularly controversial cases—the Affordable Care Act cases and Arizona immigration case—stormwater runoff might be a safe subject matter to take up.  This perhaps explains why the Court has accepted not one but two stormwater runoff cases! 

The Ninth Circuit (AK, AZ, CA, HI, ID, MT, NV, OR, WA) has a reputation for listening to the beat of its own drummer.  And the Supreme Court has a reputation of taking the drum back and correcting the beat.  Will this happen in Los Angeles County Flood Control District v. Natural Resources Defense Council?  The State and Local Legal Center (SLLC) has filed an amicus brief in this case, which CSG has signed onto, and thinks (and hopes!) so. 

The controversy in Los Angeles County Flood Control District v. Natural Resources Defense Council is over whether the Los Angeles County Flood Control District has violated a federal permit because of the level of pollutants from stormwater that it gathers in municipal separate storm sewer systems (MS4s) located in two California Rivers.        

Great Lakes Legislative Caucus

The Great Lakes Legislative Caucus continues to track state and federal legislation of interest to Great Lakes lawmakers.

A signing ceremony last week set up the world’s largest water quality cap-and-trade program. It’s not centered in Europe or on the east or west coasts, but in the Midwest.  Indiana, Kentucky and Ohio became the first states to adopt the same set of trading policies and procedures to limit the amount of nitrogen and phosphorous—or nutrients—running off into the Ohio River. Farmers will adopt best practices that limit nutrient runoff. Power and wastewater treatment plants will be able to buy those credits, even across state lines, to help offset their environmental impact.

Representatives from the states of Indiana, Kentucky, and Ohio signed an agreement today in Cincinnati to create the Ohio River Basin Water Quality Trading Program - a pilot program that will allow farmers and industrial facilities to trade pollution credits to reduce fertilizer run-off and nutrient discharges. Trading is scheduled to begin in 2015 from at least three power plants and up to 30 farms for the implementation of best-practices on agricultural land that will eliminate up to 45,000 pounds of nitrogen and 15,000 pounds of phosphorus annually into the river.