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Federal court refuses to order waterway closure to block Asian carp

The US District Court for the Northern District of Illinois [official website] dismissed a nuisance suit by Michigan, Wisconsin, Minnesota, Ohio and Pennsylvania to compel the US Army Corp of Engineers and Metropolitan Water Reclamation District of Greater Chicago [official websites] to construct barriers between Chicago-area waterways and the Great Lakes to prevent the spread of Asian carp [EPA backgrounder; JURIST news archive]. Some experts have indicated the invasive species could consume enough plankton to disrupt the food chain, damaging the multi-billion dollar fishing industry [ABC News video]. The court recognized the potential ecological harm [AP report] that could result from the invasive fish species but held that federal law requires that connections between navigable waterways must be kept open and dams can only be constructed with Congress' consent. The court permitted the five states to bring further action if they could craft a remedy which would not require the US Army Corp of Engineers and the Metropolitan Water Reclamation District to violate federal law.

The US Supreme Court denied a petition for writ of certiorari [JURIST report] in the five states' Asian carp suit for the fourth time in February. In August, the US Court of Appeals for the Seventh Circuit ruled against [JURIST report] the five states' efforts to stop the Asian carp. The Supreme Court had denied certiorari [AP report] on the issue three times as of April 2010. In December 2009, the state of Michigan filed a lawsuit [JURIST report] in the Supreme Court against the state of Illinois seeking to close the two waterways, as the court has original jurisdiction in disputes between the states. All three times, the court denied certiorari without comment on the dispute. Michigan reopened the longstanding controversy [backgrounder, PDF] over the diversion canal, created in the 1890s to keep Chicago's sewage from flowing into Lake Michigan. The court issued decrees over the canal in 1930, 1933, 1956, 1967 and 1980. The carp have been traveling up the Mississippi and Illinois rivers for years. Tests have showed that the carp may have gotten through an underwater electric barrier and may now be within six miles of Lake Michigan. The fish were originally imported to control algae in fisheries on the Mississippi River, but escaped during a 1990s flood.

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