Round Goby (Ohio Sea Grant)

 The EPA’s proposed permit comes on the heels of a long legal battle by NWF and others to force the agency to effectively regulate ballast water under the Clean Water Act.  The new proposal is a marginal improvement over previous regulations, but still allows the discharge of invasive species into the Great Lakes at significant levels.

 EPA will entertain public comments on its proposal from now until February 21, 2012.  NWF will submit written comments to EPA and the states urging them to strengthen the permit.  Watch this space for a summary of NWF’s comments that you can use as a basis for submitting your own.

Click on the image to view the interview with Neil Kagan. Note: There is a short delay before the video begins to play.

Invasive species transported in ballast water carried by oceangoing ships have already imposed huge costs on communities throughout the Great Lakes region and devastated the fish and wildlife native to the Great Lakes and beyond.  We can ill afford new invasions by the Asian carp or other non-native species.

As in the case of the recent Exxon Mobil oil spill in the Yellowstone River, the Enbridge spill has harmed the people and wildlife dependent on Talmadge Creek, a tributary of the Kalamazoo River.  These oil spill incidents are not isolated.  They underscore the crying need for better oversight of existing pipelines, as well as a halt to new ones such as the Keystone XL pipeline, which would perpetuate the world’s unsustainable dependence on oil while posing grave risks to America’s heartland.

Lake Superior (Maury Landsman/Flickr)

Today, NWF and other conservation groups placed the U.S. Environmental Protection Agency on a path that should finally protect native aquatic life from new invasive species.  Species like the zebra mussel which have already invaded are wreaking havoc on native wildlife and ecosystems across the country, from the Great Lakes to all points of the compass.

But now, EPA has agreed to propose strict limits on ships to settle a federal lawsuit filed by NWF and others.  EPA’s proposal should lead to regulations that will protect the waters of the United States in the future.

This day has been a long time coming.  For more than thirty years after passage of the Clean Water Act, EPA allowed ships from around the world to freely dump their ballast water.  As a result, non-native species in ballast water were introduced to the waters of the United States.  Many of these species established reproducing populations in the Great Lakes basin and beyond.

The legacy of EPA’s past hands-off policy has been irreparable harm to the waters of the United States and the expenditure of billions of dollars to control invasive species.  Native aquatic species have suffered and, in some cases, been driven to extinction by invasive species, sending ripples of destruction through the food web.  Fishing, swimming, and boating have been impacted.  Municipalities and industry have been saddled with a perpetual burden of keeping the water systems they need to operate clear of obstructions caused by invasive species.

Finally, in 2008, the courts compelled EPA to regulate ballast water discharges.  Unfortunately, the permit EPA issued relied on measures required by the U.S. Coast Guard that had already failed to stop invasive species.  That prompted NWF and many of its partners to sue EPA.

The settlement filed today in the U.S. Court of Appeals reinforces EPA’s mandate to maintain and enhance the biological integrity of the nation’s waters.  NWF will stay actively involved to make sure EPA fulfills its obligations to protect native aquatic life in the Great Lakes and other American waters.

Sunset on Green Bay (Brian Mensching/Flickr)

Everyone’s familiar with the old “I have good news, and I have bad news” gag.  Wisconsin’s approach to aquatic invasive species could provide fodder for that joke.  Unfortunately, it’s no laughing matter.

The good news is that Wisconsin issued a permit that attempts to address aquatic invasive species contained in the ballast water discharged by ships.  The bad news is that the permit will not stop introductions of new invasive species.

To Wisconsin’s credit, it recognized that ballast water discharges of invasive species “pose serious threats to the health, economic welfare, and ecological integrity of Wisconsin waters and interfere with the uses of the waters of Wisconsin.”  The state also acknowledged that “the best strategy is to prevent them from entering the system in the first place.”

But instead of preventing their introduction, Wisconsin issued a permit that only reduces the introduction of invasive species.  The problem with that approach is that the introduction of even a single aquatic invasive species can wreak havoc on water quality and the state’s economy.  The well-known devastating impacts of the zebra mussel are ample proof of that. 

Yesterday, Wisconsin attorney Christa Westerberg and I, representing NWF and the Wisconsin Wildlife Federation, filed our first brief in a lawsuit challenging the permit.  For updates as the case develops, watch this space!

P.S. Wisconsin recently proposed a minor modification of its permit.  Even if modified as proposed, however, the permit only requires treatment that Wisconsin itself has described as too weak to protect the state’s waters.

Lake Erie (Mark Hogan/Flickr)

That is the question now being pondered by the Justices of the Ohio Supreme Court.  Last week, the court held a hearing in the case presenting the question: Merrill v. State of Ohio.  I was on hand representing NWF and the Ohio Environmental Council, joining with the Ohio Attorney General in explaining that the state owns Lake Erie in permanent trust for the public.

Some individuals who bought land along Lake Erie mistakenly think they own the shore of the lake and have the right to keep members of the public off when the shore is not covered by water.  They filed the Merrill lawsuit claiming that the state is trying to take their private property.  But the shore never belonged to any private person, and people have a right to walk along the shore if they gain access to it through their own land, state parks, or other publicly-owned land.

When the thirteen colonies became the United States of America, they assumed the English King’s responsibility to protect the seas bordering the land for the benefit of all the people.  And when Ohio joined the Union in 1803, it assumed the same public trust over Lake Erie.  Among other things, the state is responsible for protecting the lakebed necessary to sustain the fishery. 

Under the “public trust doctrine,” the lake does not extend only as far as the water at any given moment.  So the lake does not go as high as flood waters reach.  Nor is the lake limited to the low level characteristic of a drought.  Rather, the lake includes the shore: the land below the “ordinary high water mark.”  The ordinary high water mark is the highest line the water returns to under ordinary conditions. 

As the Roman Emperor Justinian said long ago, “By the law of nature these things are common to mankind – the air, running water, the sea, and consequently the shores of the sea.”  Let’s hope the Ohio Supreme Court taps into that ancient wisdom.  We should know within the year.

Put-In-Bay

Last October, I put the finishing touches on my last salvo ina 6-month legal battle to stop the U.S. Army Corps of Engineers from dumping massive amounts of nutrient-laden sediment in Lake Erie in 2010 — up to 800,000 cubic yards of sediment.  
 
I am still waiting for a decision in the case, but however the battle ends, the war will go on. The Corps has recently asked for permission to dump even more sediment in the lake this year, up to 1,600,000 cubic yards!

The problem with dumping the sediment is that it makes the water muddy, which in turn harms fish and other aquatic life.  It also makes boating and other recreation unpleasant, to say the least.  The sediment is also contaminated with phosphorus, which contributes to the proliferation of algal blooms, which can make people sick or even cause death.

In April 2010, the Ohio Environmental Protection Agency approved the dredging of the channel leading into Toledo to facilitate shipping.  The agency simultaneously approved dumping the dredged sediment in the open waters of the western basin of Lake Erie even though it admits that the dumping is “not environmentally acceptable to the State of Ohio and needs to be discontinued.” 

In May 2010, I appealed Ohio EPA’s approval of the dumping.  I represented NWF and a few Ohio groups, too, including the Lake Erie Charter Boat Association and the Ohio Environmental Council.

At my request, the appellate body, the Ohio Environmental Review Appeals Commission, or “ERAC,” put the case on a rapid schedule.  As a result, a case that normally would have taken at least a year to process took only half that time.  Over a 6-month period, I found witnesses, prepared the case for trial, participated in a 3-day hearing involving seven witnesses, and wrote two post-trial briefs.  Needless to say, I felt like I was in a whirlwind. 

I cannot say when ERAC will issue its decision. Whatever it decides, one side or the other may appeal the decision to the Ohio courts. Stay tuned!

But even if no one appeals, the Corps’ request to repeat its destructive sediment dumping this year means efforts to stop the practice must continue. You have an opportunity to make your voice heard on the Corps’ request at a hearing that will be held by Ohio EPA on March 3, 2011, at 6:30 p.m., at the Toledo City Council chambers, One Government Center, Toledo, Ohio. Please consider attending or submitting written comments!  You may send written comments to Ohio EPA-DSW, Attention: Permits Processing Unit, P.O. Box 1049, Columbus, Ohio, 43216-1049.