Supreme Court Again Refuses to Bar Asian Carp from Lake Michigan

LANSING, Michigan, March 23, 2010 (ENS) – Michigan Attorney General Mike Cox and environmental groups are disappointed with a new U.S. Supreme Court decision Monday that denied Michigan’s renewed request for a preliminary injunction to close Chicago-area locks to keep out invasive Asian carp.

The renewed motion came in response to new DNA evidence of Asian carp getting past the O’Brien Lock and into Lake Michigan. That information was not delivered to the court by the federal government before the Supreme Court’s January 19 decision on the original injunction request.

Asian carp can grow to more than four feet long, weigh up to 100 pounds, and eat up to 40 percent of their body weight per day of the same food that sustains native fish. If they colonize the Great Lakes, they are predicted to damage the lakes’ lucrative fisheries.

The invasive fish have migrated up the Mississippi and Illinois rivers toward the Great Lakes after escaping from fish farms in the several decades ago.

The Chicago Sanitary and Ship Canal is a potential avenue for Asian carp to enter Lake Michigan. (Photo by Joe Balynas)

In the past several months, Asian carp DNA has been found in several places along the Chicago Waterway System as well as in Lake Michigan’s Calumet Harbor, just outside Chicago.

Cox, a Republican who is running for governor, said, “Our motion was an extraordinary attempt to protect the Great Lakes, but we felt it was necessary to because the court deserved to have access to the new DNA and economic information before making a decision.”

“We will continue to focus on the reopening of the diversion case in April, with the goal of developing an effective plan to protect the entire Great Lakes region from the devastating threat of Asian carp,” he said.

Cox noted that Michigan’s legal action requesting to reopen the “Chicago Diversion” case is supported by Pennsylvania, New York, Ohio, Wisconsin, Minnesota, Indiana and the province of Ontario.

The Supreme Court has scheduled an April 16 review of Michigan’s request for hearings to develop a long-term solution to the crisis that will protect the ecology and economy of the Great Lakes.

Three environmental groups filed a friend of the court brief on Friday urging the U.S. Supreme Court to take up the Michigan lawsuit that aims for a long-term permanent solution to keep Asian carp from entering Lake Michigan through Chicago’s artificial navigational channels.

Filed by the Alliance for the Great Lakes, the National Wildlife Federation and the Natural Resources Defense Council, the brief says the nation’s highest court is the proper venue for deciding a dispute that affects everyone who lives in a Great Lakes state.

The Chicago Diversion is a channel and control structures completed in 1900 to reverse the flow of the Chicago and Calumet Rivers so that sewage from Chicago would flow through the Illinois River to the Mississippi River.

The Chicago Diversion has two other components. One, 62 percent of the diversion, provides the water supply for the 5.7 million residents of northeast Illinois. The other, 20 percent of the allowed diversion, is stormwater runoff that would have flowed into the Chicago River and from there into Lake Michigan, but which now flows the opposite direction into the Mississippi watershed.

While the diversions serve useful purposes, the complex system of rivers and canals also creates an aquatic superhighway for the Asian carp and other invasive species to travel between the Lake Michigan and Mississippi watersheds.

This constitutes “a public nuisance” the state of Michigan will try to prove before the Supreme Court in the reopened Chicago Diversion case.

The environmental groups and the state have called for a physical separation of the two watersheds, essentially returning them to their natural status, as the only permanent way to protect both watersheds.

“The permanent solution is not technology, but what we call ecological separation – or no movement of live organisms between the Great Lakes and the Mississippi River via the canals,” said Alliance President Joel Brammeier, who co-authored a study on the subject in 2008.

But a permanent separation of the two watersheds would impact the barge industry that relies on the canal to move goods in the Chicago area, as well as between the Great Lakes and the Gulf of Mexico. It also would force changes in the way Chicago handles its sewage.

American Waterways Operators, the trade association for the barge industry, told a Congressional hearing on February 9 that instead of physical separation of the two watersheds the industry favors effective measures that would not disrupt barge transportation.

Del Wilkins of the Canal Barge Company told the lawmakers the industry favors expedited construction of a third electric barrier on the Chicago Sanitary and Ship Canal, using “bubble and acoustic technology fish barriers” to keep carp out of the lakes, and electrofishing, netting and commercial fishing “that do not delay movement of commerce.”

Cox says the economic impact of physical separation would not be disastrous. He handed the Supreme Court a new economic study authored by a Wayne State University transportation expert which shows much lower potential losses to the Chicago economy if the locks are closed than has been claimed by the state of Illinois.

In lieu of a long-term solution, the state and federal governments are taking increasingly desperate measures to keep carp out of the Great Lakes. In December, hundreds of fishery workers poisoned the Chicago Sanitary and Ship Canal in an attempt to kill Asian carp that might evade an electrified barrier that was out of service during maintenance.

While a long-term solution is being worked out, Cox said that President Barack Obama should act immediately to close the locks, at least temporarily. He points out that Obama previously pledged a zero tolerance policy for new invasive species in the Great Lakes.

Cox praised the bipartisan efforts of Michigan’s Congressional delegation on the issue, including legislation introduced in January by Senator Debbie Stabenow, a Michigan Democrat, and Congressman Dave Camp, a Michigan Republican, which would require immediate closure of the locks.

Responding to the Supreme Court’s decision Monday, Stabenow said, “I am deeply concerned that for a second time the Supreme Court has refused to order a temporary closure of two Chicago-area locks. It’s clear that Asian carp pose an immediate threat to the Great Lakes and our fishing and boating industry, putting thousands of Michigan jobs at risk. That’s why we must use every possible tool to prevent the spread of Asian carp into Lake Michigan, including the closure of the Chicago-area locks.”

Congressman Camp said, “This decision threatens the Great Lakes and the $7.5 billion fishing industry and the 800,000 jobs they support. We must act now, and immediately close the Chicago-area locks to stop Asian carp from reaching the Great Lakes.”

Cox reminds the public that they can help bring attention to the issue by signing an online petition to protect the Lakes at www.StopAsianCarp.com.

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