Michigan Files Suit To Stop Asian Carp

Near the end of December 2009, Michigan Attorney General Mike Cox asked the U.S. Supreme Court to order closure of all Chicago area locks and waterways that might otherwise allow Asian carp to enter the Great Lakes.  The unprecedented lawsuit targets the U.S. Army Corp of Engineers, the State of Illinois and the Chicago water reclamation district that helps operate the waterways.  Its premise is that federal, state and local officials have all failed to take appropriate actions to protect the Great Lakes’ $7 billion annual fishing and tourism industries.  

The suit argues that the Supreme Court should revise the consent decree from an 80 year-old decision that limited the diversion of water from Lake Michigan to carry sewage down the Chicago Sanitary and Ship Canal (CSSC).  In Wisconsin V. Illinois the court held in 1930 that the amount of water that could be diverted should be limited as necessary to avoid harm to the interests of other states.  Michigan’s lawsuit now argues that the threat of Asian carp demands that the amount and methods of diversion need to be revised.  The suit asks the Supreme Court to examine two other complaints brought (by New York and Michigan) in 1929.  

The Asian carp are invasive fish that are harming the environment and economies along the Mississippi River and threaten to do the same to the Great Lakes.  The fish consume enormous amounts of food that other fish rely on, allowing the carp to muscle out native species.  The fish can grow up to 4 feet long and weigh up to 100 pounds, quickly dominating a water body due to their size.  The fish also pose a risk to people: the silver carp are easily startled and often jump out of the water, making them a hazard to boaters, anglers and water-skiers.  A few have been found in Lake Erie since 1995.  They presumably were released there by humans, and it is not known whether the Asian carp have reproduced.  

The slow, uncertain approach employed by state and federal agencies in facing this threat is almost as troubling as the Asian carp itself (see editorial below).  The species first escaped from Southern U.S. fish farms into the Mississippi River 40 years ago.  Decades ago, fisheries biologists began tracking the steady movement of Asian carp northward.  Environmental groups warned of the threat to the Great Lakes.  Electrical barriers of questionable effectiveness were eventually built in the CSSC, and the main barrier was shut down for maintenance in October of 2008.   

A massive effort to poison all fish in a six-mile stretch of waterway above the electrical barrier confirmed the presence of an Asian carp, and various other actions and sampling in fall did little to allay concerns.  This set the stage for Michigan’s lawsuit, which was immediately lauded by state and national conservation groups.  Some analysts were hopeful the strategy to link the Asian carp issue with the 1929 complaints and Wisconsin V. Illinois decision would compel the Supreme Court to quickly decide the risk of potential harm must outweigh the economic arguments of shipping interests and their Illinois supporters.  

After the suit was filed, it did not take long for President Obama’s administration to respond.  On January 5, 2010, U.S. Solicitor General Elena Kagan filed a formal response, arguing that closing the locks would hinder flood control, recreational boating, commercial shipping, and Coast Guard operations.  The administration’s response also stated that federal agencies are already working hard to keep Asian carp out of the Great Lakes and that closing the locks may be unnecessary.  Michigan’s Attorney General Cox then criticized President Obama for “siding with his home state while ignoring the concerns of the millions of families in Michigan, New York, Ohio, Wisconsin and Minnesota, whose jobs and way of life depends on protecting the Great Lakes…”  

Dreaded Exotic Fish May Already Be In Lake Michigan  

On January 19, 2010, the plot thickened dramatically.  First, the Supreme Court issued a one-sentence rejection of Michigan’s request for a preliminary injunction to shut the locks and gates temporarily until a long-term solution could be developed.  The Court gave no indication whether it will eventually hear the case as a whole.  Then, just hours later, federal officials announced that two water samples taken between the locks in question and Lake Michigan—including one sample from the lake’s Calumet Harbor—tested positive for Asian carp DNA.  The same federal officials insisted that they could not be certain that the exotic fish had reached Lake Michigan.  General John Peabody of the U.S. Army Corp of Engineers told the Associated Press and other media in a teleconference that DNA tests by Notre Dame University were only an “early warning device where Asian carp may be present” and that no live or dead fish had actually been collected.  

Then on January 22, 2010, U.S. Senator Debbie Stabenow introduced the CARP ACT in the U.S. Senate.  This bill directs the Army Corps of Engineers to construct additional barriers and immediately close the lock between the Chicago waterway and Lake Michigan to protect the Great Lakes from Asian carp.  Michigan Congressman Dave Camp also introduced the companion legislation in the House of Representatives.  

The bills introduced called for action to:  

• Immediately close the barriers and locks into the Great Lakes.  

• Expedite installation of interim barriers in rivers where no barriers currently exist.  

• Enhance existing barriers and monitoring systems to prevent fish from crossing into the Great Lakes.  

• Grant full authority to the Army Corps of Engineers to eradicate the Asian carp and prevent them from entering the Great Lakes.

The soap opera-like nature and timing of these events, findings and announcements would be amusing if not for the fact that so much is at stake.  This, sadly, is 21st century exotic species control with cumbersome administrative, political, and economic systems allowing everything from waterfleas to carp to hogs to threaten the most valuable natural resources in the Great Lakes Region.

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