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Jessica S. Moldofsky
Executive Summary: Overview: The Asian Carp, an invasive species that is taking over US waters, is posing a monumental threat to industry and the environment alike. The Asian Carp is made up of two species, the Bighead (Hypothalmichthys nobilis) and Silver Carp (H. molitrix) and can grow up to 100 pounds (1). The fish are fast breeding and hardy, and are spreading from lakes to rivers across the United States at an alarming rate, despite measures to halt the invasion. This species originated in Asia and was brought the United States for use in the fish market and to keep aquaculture facilities clean (3). It is predicted the carp escaped their facilities around 1970 during massive floods that allowed the fish to infiltrate native waters. The most recent advancement includes the species in the Illinois River, which connects the Mississippi River to Lake Michigan. The greatest threat that these fish currently posses is the potential collapse of the ecosystem in the Great Lakes region if the fish get into these waters. The species is classified as a nuisance species due to its destructive habits. It could be compared to “the locust of the sea.” The Asian carp have destructive effects on their environment that would not naturally occur. They are capable of consuming up to 20% of their body weight daily and their diet overlaps with that of native fish in the Mississippi and Illinois Rivers. Today, commercial fishermen in the Illinois River regularly catch up to 25,000 pounds of bighead and silver carp per day. The commercial value of this species is very low, especially compared to the value of the native species it could replace. The carp consumes plankton and other small microorganisms,
which are the backbone to the aquatic food pyramid. If the carp undermine this tropic structure, the ecosystem could fall and many species of aquatic life could simply disappear. The Great Lakes‟ economy is reliant on the fishing industry as well as resultant tourism industry. If the carp were to take over the waters, it is estimated that $7 billion annually could be lost in revenue to this area. The carp also poses a threat to humans- they are known to jump up to 10 feet in the air when startled. Due their massive size, boaters, water skiers and fisherman alike are at risk of physical injury if they were to be hit by a flying carp, which has been known to happen. (4) Figure 1. Jumping carp (8)
Legal Framework: Current Measures: Currently, there have been measures implemented to halt the advancement of the carp, however none of these measures have proven entirely effective. Due to the destructive habits of this species, the US Fish and Wildlife Service worked with stakeholders to develop a plan for management of the carp. The National Aquatic Nuisance Species Task Force accepted the plan in the fall of 2007. In July of 2007, Silver carp were declared by the U.S. Department of the Interior, under the Lacey Act, as an invasive species. This act combats trafficking of “illegal”
wildlife, fish, and plants (2). An amendment to this act, in July of 2009, was the Asian Carp Prevention and Control Act. This act was implemented as Public Law and signed by Congress to add the Bighead Carp, of the species Hypophthalmichthys nobilis, to the list of destructive species that are prohibited from being imported into the United States (7). One of the greatest efforts to date to halt the fish movement was put in place in 2002 by the US Army Corps of Engineers. The EPA became concerned as well with the possible effects of the carp on the Great Lakes, so an electric barrier was installed in the Chicago Sanitary Ship Canal, the only known aquatic link between the Great Lakes and the Mississippi River drainage basins. Once the effects of this barrier were proven effective, a second electric barrier was implemented in 2004. In 2010, U.S. Representative Dave Camp from Michigan's 4th district and Senator Debbie Stabenow from Michigan introduced the CARP ACT (Close All Routes and Prevent Asian Carp Today). This act was implemented to direct the Army Corps of Engineers to take action to prevent Asian Carp from entering the Great Lakes. It was estimated in 2010 that it could cost more than $30 million in prevention. The act was aimed to ensure that O‟Brien Lock and Dam and the Chicago Controlling Works remained closed until a better strategy was developed. The act also gave authority to the Army Corps of Engineers to obtain any necessary real estate for the construction and maintenance of the electric barriers. The act also gave authority to the Corps to utilize fish toxicants, commercial fishing and netting, and harvesting of the carp to prevent the spread. (4) Another effort has included the use of Rotenone into the canal. This natural toxin inhibits the uptake of oxygen into the gills and will kill all aquatic species with no harm to humans. Other efforts have included education the public on the matter and encouraging the public to consume more carp. The fish is tasty to eat and abundant to catch.
Despite these efforts, on June 22, 2010, a carp was found on the shore of Lake Michigan, confirming the fact that the Asian carp had indeed breached the electric fish barrier on the Chicago Sanitary and Ship Canal. This brings the issue to current day; the Asian carp are clearly navigating closer to the Great Lakes and it is only a matter of time until they are found in this water and an ecosystem collapse occurs. The most present solution to this problem includes closing of the locks in the Chicago Area Waterway System to prevent the further spread of the Asian carp. Figure 2. Chicago waterways and entrance of cap to Great Lakes (8)
This issue is being tackled by a wide scale approach involving many agencies. The 2010 creation by the Obama administration of the Asian Carp Control Strategy Framework, updated in 2011, “outlines an aggressive, multi-tiered strategy that includes Asian carp monitoring and netting, identifying and blocking pathways to the Great Lakes, and a series of other short- and long-term actions, including the development of long term biological controls.” (4) The Asian Carp Regional Coordinating Committee (ACRCC) was formed from this, including the U.S. Army Corps of Engineers, U.S. Coast Guard, U.S. Fish and Wildlife Service, U.S. Geological Survey, U.S. Environmental Protection Agency, the National Oceanic and Atmospheric Administration, U.S. Department of Transportation and all eight Great Lakes states, as well as the Great Lakes Fishery Commission, the Metropolitan Water Reclamation District of Greater Chicago, and the City of Chicago. In February, the White House hosted a “Carp Summit.” The meeting included Great Lakes‟ region Governors, the Obama Administration, officials from the Environmental Protection Agency, Department of the Interior, U.S. Army Corps of Engineers, and U.S. Coast Guard. The Summit‟s purpose was to discuss strategies to prevent the spread of Asian carp to coordinate the efforts across all levels of government. A $78.5 million plan outlining 25 shortterm and long-term actions resulted from the Summit (8). Another bill was introduced into Congress on June 29th, the Permanent Prevention of Asian Carp Act. The bill required the Army Corps of Engineers to perform a study to evaluate the most successful way to implement the hydrologic separation of the Great Lakes and Mississippi River Basins (8).
Chicago Canal Litigation The most present situation that will be addressed is the closing of the locks in the Chicago Area Waterway System. On December 21, 2009, Michigan Attorney General Mike Cox filed a lawsuit with the U.S. Supreme Court on behalf of the State of Michigan against the State of Illinois, seeking immediate closure of the Chicago Sanitary and Ship Canal in order to prevent the spread of carp into Lake Michigan. While closing the locks appears like the immediate and most effective solution, it is faced with utmost scrutiny and opposition by those that feel the closing of the Chicago waterways could cause huge economic upset to the Chicago shipping market. On January 5, 2010, Illinois Attorney General Lisa Madigan filed a counter-suit with the Supreme Court requesting that it reject Michigan's claims. The Illinois Chamber of Commerce and American Waterways Operators both sided with Illinois, arguing that closing the Chicago locks would disturb the transport of millions of tons of shipping supplies such as iron ore, coal, grain and other cargo that currently enter through the Chicago locks. This cutoff could total more than $1.5 billion a year, and contribute to the loss of thousands of jobs. Michigan countered this claim with the fact that the sport fishing and recreation industry in other states have already been, and would be impacted in the future at an estimated amount of $3 billion, if the carp are not halted now. As well, approximately 4,000 jobs would also be lost due to the carp. Both sides of this argument argue loss in economic value and livelihood. A mere eight hours after the Supreme Court denied the motion, the U.S. Army Corps of Engineers announced the Asian Carp DNA was found in Lake Michigan for the first time. Attorney Cox filed a renewed motion with the U.S. Supreme Court to close the Chicago locks following this announcement, but the motion was denied (8).
To date, President Obama and his administration have supported Illinois's efforts to keep the waterways open and with the help of the USGS and the U.S. Fish and Wildlife service reports, have consistently denied that the Asian carp poses a threat. (5) Currently, five Great Lake states have filed a lawsuit in US District Court, asking that the Chicago Locks be closed. Last month, a Federal Court of Appeals panel upheld the District Court‟s order denying the request that locks be closed. The lawsuit is ongoing. (6) Presentation of the issue: There is a non-agreement in terms of the solution of the Asian carp problem. One side of the issue is constructed from those concerned with the environmental consequences as well as the economic effects the Asian carp could have on the Great Lakes region. These individuals and states are in favor of closing the Chicago locks. The opposing side of the controversy is in favor of keeping the locks open, and feels that negative economic consequences could result from a closure of crucial shipping ports. Discussion: Two sides have risen out of this problem. Each side sees the issue from different perspectives and values different aspects at a higher value, therefore delineating importance to their side of the controversy. The conflicting positions include those for closing the Chicago locks and those against closing the locks. Those for closing the Chicago locks see this as the most effective and necessary measure to prevent the species from making their way into the Great Lakes. This side of the controversy values the environment higher than the economic value of the Chicago locks, and also values the economic value of the Great Lakes region, which is dependent of the fishery. As discussed prior,
in the Chicago Canal Litigation, the economic value per year generated from open Chicago locks is estimated at $1.5 billion. Contrary to this value, not closing the locks could result in an economic loss of $3 billion due to loss in the tourism and fishing industry of this area (3). Restaurants, hotels, tackle shops and other businesses would close if destination fishermen do not come. This value is two times the economic loss from closing the locks. As well as financially, the Great Lakes region could suffer drastically in terms of environmental value if the carp spread due to the locks remaining open. The fish are voracious eater, destroying aquatic vegetation and starving out native species. The aquatic ecosystem and food web would be destroyed if the fish were allowed to take over. This side, in favor of closing the locks, feels that not only would more value be lost in terms of revenue and jobs, but also that the environment would be altered in a permanent and destructive way. The other side of the controversy is in favor of keeping the locks open. This side values the economic welfare of the Chicago canal higher than the environmental welfare of the Great Lakes region. These individuals and stakeholders worry that if the locks are closed, Chicago could see a loss in 3,000 jobs as well as an economic loss of $1.5 billion per year due to restricted access of shipments. This side feels that the immediate and certain loss of welfare to Chicago is not to gamble over a merely „potential‟ crisis that could occur. They feel that there is not enough certain evidence to warrant closing the locks, that says the carp could even survive if they made it into the Great Lakes. They also feel that there are other pathways to the lakes, so closing the Chicago canal is not the solution. These conflicting views have caused a problem because no action can be taken until an agreement is reached. Both sides feel that the carp should not be allowed to spread further, however those against closing the locks do not feel that this solution is the way to go. The legal
framework already in place does not directly address this conflict: The framework is in place to protect the environment and the socioeconomic values of either side, however not together. Both pieces of the puzzle are addressed but the current legal framework does not merge the two. The conflict arises from this non-merger. The problem focuses on how to manage the problem at hand while supporting both views of the issue; however a much bigger problem could be present, the Asian carp in the Great Lakes, if no agreement is reached soon. This conflict serves as a direct example of how we as humans have yet to adopt “the land ethic.” The fact that there is even this potential crisis due to man‟s actions shows that we are still a “ conqueror of the land-community” instead of a “plain member and citizen in it.” This is a human-inflicted problem and the controversy over the solution demonstrates mans‟ selfish and consuming nature, rather than the nature-integrated, concerned citizen of Earth that Aldo Leopold suggests in A Sand County Almanac. Solution: The solution I propose involves the current proposed solution that is under debate. I feel that the environmentalists‟ solution of closing the Chicago locks is possibly one of the only attainable, remaining chances to keep the carp from moving through the waterways into the Great Lakes. While it is a possibility, as those who are against closing the locks suggest, for the carp to find an alternative route, it is very important, and our moral code as concerned humans, to take all possible measures available to prevent the spread of the carp. My solution is this: Immediate hydrologic separation. The entire Chicago Sanitary Canal, including passage in or out of the locks, will remain closed indefinitely starting immediately, or until the US Army Corps of Engineers or other acting group or organization declares a separate significant solution that
would also ensure no waterway connection is available to the carp from the rivers to the Great Lakes. (This alternative solution would have to pass unanimously throughout the affected Great Lake states as well as with all involved federal organizations.) At the current rate the US Army Corps of Engineers is working, the carp could bypass the locks before they even have a chance to be closed. (The current timeline outlines a five-year window of research before the locks could be closed.) I suggest the federal government passes a bill declaring them closed immediately to imports and exports, and as a secondary measure, I propose wire fish nets be implemented for several miles past the locks at intervals to ensure that no fish can escape through the closed locks. These fences are a relatively inexpensive measure that could be an insignificant cost for an immense amount of added protection. If the locks are to be closed, it is important to have this small measure to back up a large plan. This proposed plan does include some of the new environmental regulations presented by Fiorino in The New Environmental Regulation. Research conducted by the US Army Corps of Engineers and other organizations has and continues to be advanced and comprehensive, compared to the increasingly outdated “assumption that environmental protection and business are irreversibly at odds.” The new solution includes performance-based tools such as monitoring the carp DNA footprint in waterways throughout the country instead of focusing a solution on a “narrow definition of compliance.” The new solution is integrated and incorporates all affected (the Great Lake States.) It has been found throughout history that simple and routine solutions to monumental and complex problems do not address or ultimately solve the conflict. For example, an outdates air quality plan that limits the sulfur emitted from a certain stack does not even come close to addressing the current sulfur inputs from the numerous mobile sources of the pollutant from burning of fossil fuels. A comprehensive solution to this problem has to be complete and
effective. I would predict the old environmental law‟s solution to the Asian carp problem would be something along the lines of applying Rotenone throughout the waterways to destroy the carp, or a similar non-flexible, non-comprehensive approach. This proposed solution of immediate hydrologic separation takes into account “the willingness and capabilities of different firms to meet their obligations and capabilities” and involves the moral obligations placed on us as humans to manage the environment to our best ability. This is our world and it is our responsibility to assure it remains unharmed for future generations to come.
Sources: 1. Lohmeyer, Adam M., and James E. Garvey. Placing the North American Invasion of Asian Carp in a Spatially Explicit Context. 2008. Print. 2. "Plant Health, Plant Protection and Quarantine." USDA - APHIS. 19 Sept. 2011. Web. 16 Oct. 2011. <http://www.aphis.usda.gov/plant_health/lacey_act/>. 3. "Background & Threat." Asian Carp. U.S. Fish & Wildlife Service, 2010. Web. 16 Oct. 2011. <http://asiancarp.org/>. 4. "Asian Carp." Rep. Dave Camp US Congressman 4th District of Michigan. Web. 16 Oct. 2011. <http://camp.house.gov/Issues/Issue/?IssueID=9768>. 5. Merrion, Paul, "Illinois fights back as states seek carp-blocking canal closures", Crain's Chicago Business, 4 January 2010. 6. Hall, Noah. "Asian Carp and Chicago Canal Litigation." Great Lakes Law. 2 Sept. 2011. Web. 16 Oct. 2011. <http://www.greatlakeslaw.org/blog/asian-carp/>. 7. "S. 1421 [111th]: Asian Carp Prevention and Control Act (GovTrack.us)." GovTrack.us: Tracking the U.S. Congress. 2009. Web. 19 Oct. 2011. <http://www.govtrack.us/congress/bill.xpd?bill=s111-1421>. 8. Asian Carp. Digital image. Aquatic Invasive Species. Watershed Council, 2011. Web. 19 Oct. 2011. <http://www.watershedcouncil.org/learn/aquatic%20invasive%20species/asian-carp/>.