Cox Files New Asian Carp Lawsuit Against Obama Administration

Contact: John Sellek or Joy Yearout 517-373-8060

July 19, 2010

LANSING - Michigan Attorney General Mike Cox announced that his office filed suit today in U.S. District Court for the Northern District of Illinois to force the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to take emergency action to block Asian carp from entering Lake Michigan, and accelerate efforts to develop a permanent solution to protect the Great Lakes.  Attorneys general from Wisconsin, Minnesota, Pennsylvania and Ohio have joined Cox in his effort to protect the Great Lakes, due to the Army Corps' dismal record of inaction in confronting Asian carp.

 "President Obama and the Army Corps of Engineers have failed to fight Asian carp aggressively," said Cox.  "Asian carp will kill jobs and ruin our way of life.  We cannot afford more bureaucratic delays - emergency action must be taken to protect the Great Lakes." 

The lawsuit is supported by affidavits from experts at the Michigan Department of Natural Resources and Environment (DNRE) and Wayne State University, and includes a motion for preliminary injunction seeking immediate action to address the threat that Asian carp will enter Lake Michigan.   The imminence of this threat was made clear by the recent capture of a live bighead carp in Lake Calumet, six miles from Lake Michigan and beyond any barriers. The lawsuit is based on:

1)   Public Nuisance: By failing to stop Asian carp from entering the Great Lakes, the Corps allows grave and likely irreparable harm to the aquatic resources of the Great Lakes and the shared public rights to them; and

2)   The Administrative Procedures Act: The federal Administrative Procedures Act allows legal challenges to federal agency decisions that are arbitrary or unlawful.

Rep. Dave Camp (R-MI), a sponsor of legislation to confront Asian carp, said, "I applaud the Attorney General's latest filing, which provides the urgency we need to protect the Great Lakes from impending ecological disaster.  It is my hope the District Court will take this case up immediately.  With the recent discovery that an Asian Carp has been found in Lake Calumet, past all barriers to the Great Lakes, it is clear that we need to act swiftly to close the locks, while working on permanent hydrological separation."

In the lawsuit, Cox points to the Army Corps' recent failures to implement commonsense emergency actions to stop Asian carp, and the Administration's denial of the request by Ohio for a new Carp Summit, even after the recent discovery of Asian carp in Lake Calumet.  Despite mounting evidence over the last several months that Asian carp are present in Chicago waterways, the Army Corps has refused to temporarily close the O'Brien and Chicago Locks, failed to apply fish poison in every location that tested positive for Asian carp eDNA, failed to comprehensively address all pathways linking Lake Michigan with carp-infested Illinois waterways, and failed to sufficiently accelerate the evaluation of a permanent separation of the Great Lakes Basin from the carp-infested Chicago Area Waterway System.

The lawsuit filed today  calls for the Corps to use all available efforts to block Asian carp passage in the waterways linked to Lake Michigan, including:

·     Use block nets, other physical barriers and fish poison at strategic locations to block or kill Asian carp that have already swam through the O'Brien lock, dangerously close to Lake Michigan;

·     Install and maintain block nets and other physical barriers in the Little Calumet River, where no barrier of any kind currently exists;

·     Temporarily close the O'Brien and Chicago Locks, except as needed to protect public health and safety;

·     Temporarily close sluice gates at the O'Brien Lock, the Chicago River Controlling Works, and the Wilmette Pumping Station, except as needed to protect public health and safety;

·     Install and maintain screens on all sluice gates mentioned above to reduce the risk of fish passage when gates are open.

·     Accelerate efforts to complete a feasibility study of a permanent hydrological separation of the Great Lakes Basin from the Mississippi River within the next 18 months, with reports at six and 12 months.

The lawsuit makes clear that all of the requested action would be subject to exceptions to prevent flooding, allow access for emergency responders, and any other action necessary to prevent serious threats to public health and safety.

Earlier this year, Cox petitioned the U.S. Supreme Court to intervene to address the threat of Asian carp.  The Supreme Court declined the take up the case, but did not rule on the merits of the legal claims by Michigan and other Great Lakes states.

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