Posted on December 19, 2011 by David Ullrich
For many years, the Great Lakes community has identified invasive species as one of the most serious threats to the largest system of surface fresh water in the world. Well over 180 species are present already, and include such types as sea lamprey, zebra mussels, quagga mussels, round gobies, and many more causing hundreds of millions of dollars of damage each year. Even with all the concern over the current invaders, much more anguish has developed because of the threat from Asian carp, more specifically silver and bighead carp.
The Asian carp were introduced to fish farms in the southern United States in the 1970’s to remove algae and plankton from catfish ponds. Along the way, through flooding and other means, they escaped into the rivers, and have been eating and reproducing their way north over the years. The U.S. Army Corps of Engineers have erected an electric barrier about 40 miles from Lake Michigan on the Chicago Sanitary and Ship Canal, linked to the Illinois River, to stop the further movement. Although it appears the barrier is having an effect, there is evidence to suggest the carp have already gone beyond and are threatening Lake Michigan.
When this evidence became public in late 2009, Michigan went to the U.S. Supreme Court to seek a reopening of an old multi state consent decree over water diversion from Lake Michigan to Illinois. The Court refused to hear the matter, but Michigan and other states have gone to Federal district court in the Northern District of Illinois for injunctive relief to close the locks that separate Lake Michigan from the Chicago Area Waterway System. The district court denied the injunction, and the Seventh Circuit upheld the denial, but appeared to leave the door open to the plaintiffs if action is not taken quickly enough.
The U.S. Army Corps of Engineers is undertaking a large study called the Great Lakes and Mississippi River Inter-basin Study to look at all possible connections between the two watersheds, and consider all possible ways to stop the movement of the carp. The Great Lakes and Mississippi River communities are both concerned that this will take too long. To address this concern, the Great Lakes Commission and Great Lakes and St. Lawrence Cities Initiative have undertaken an expedited study funded by six foundations looking just at the Chicago Area Waterway System and the option of re-establishing the divide between the two basins by separating them with an earthen barrier that would prevent any flow of water or movement of aquatic species in either direction.
The situation presents a number of interesting public policy and legal issues. How seriously do we need to take invasive species? How much emphasis should be placed on the prevention of introductions of new species to new areas, and how much certainty in the risk analysis should be required to take action? How much disruption of commerce is acceptable? What level of legal showing should be required to get an injunction?