Monday, January 30th, 2023
Monday, January 30th, 2023

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Feds not protecting Superior, suit says

Tim Spielman

Associate Editor

Duluth, Minn. – Groups in northeastern Minnesota and Wisconsin
recently sued the federal government in U.S. District Court in an
attempt to force two agencies to immediately better protect the
Great Lakes from the invasive species the groups say are arriving
via ship-balancing ballast water from other areas of the Great
Lakes, and from oceangoing vessels, to Lake Superior.

The recent outbreak of viral hemorrhagic septicemia – a deadly
fish disease – in the eastern Great Lakes, and the subsequent
threat to Lake Superior’s fish prompted the suit, said Curt Leitz,
of the W.J. McCabe (Duluth, Minn.) Chapter of the Izaak Walton
League.

“VHS was the straw that broke the camel’s back,” Leitz said,
adding that VHS is just one of several invasive species or diseases
whose introduction has been blamed on ballast water.

According to the executive summary of the complaint: “The
complaint asks that the court Š protect the plaintiffs and the
general public by requiring APHIS (the USDA’s Animal and Plant
Heath Inspection Service) and the (U.S.) Coast Guard fulfill their
missions (as spelled out in their own regulations) and the law (as
spelled out in the National Invasive Species Act of 1996) by
preventing the spread of the VHS virus through the Great Lakes via
unregulated ballast water.”

Besides the Izaak Walton League’s Duluth chapter, other
plaintiffs in the lawsuit are the Save Lake Superior Association,
and Trout Unlimited in both Minnesota and Wisconsin.

There’s been plenty of legislation and legal action lately aimed
at protecting Lake Superior from the arrival of VHS – and other
invasives. Last week, a Ramsey County (Minnesota) judge ruled in
favor of the Minnesota Center for Environmental Advocacy in its
lawsuit against the Minnesota Pollution Control Agency, which now
must have in place by Oct. 1 a permitting system for ballast water
release.

The MPCA has, in the meantime, been in the process of developing
such a system, based on the state Clean Water Act.

Further, the Minnesota Legislature has been pursuing a bill
geared toward ballast water.

And the U.S. House of Representatives recently approved the
Coast Guard Reauthorization Act, which addresses ballast water.

Other Great Lakes states have attempted to regulate the release
of ballast water in their waters, and the national parks of Lake
Superior also now have a plan in place to address VHS. A Michigan
state law was challenged by a shippers association, was upheld, and
currently is being appealed. That rule applies to parts of lakes
Michigan, Huron, and Superior.

But the lawsuit brought by the Izaak Walton League, Trout
Unlimited, and SLSA does something else, Leitz said: It attempts to
force immediate action by federal agencies.

Leitz said APHIS and the Coast Guard have 60 days to formally
respond to the suit, after which he expects a judge to issue a
ruling. Neither agency has publicly responded to the suit.

According to the lawsuit, the National Invasive Species Act of
1996 requires the Secretary of the Department of Homeland Security,
along with the Aquatic Nuisance Species Task Force, to issue
regulations to prevent the introduction and spread of aquatic
nuisance species into the Great Lakes through the ballast water of
vessels.

Leitz said APHIS is charged with identifying waters infected
with diseases, and must notify the Coast Guard of such
infestations. The Act requires the Coast Guard to enforce its
provisions to prevent the spread of aquatic invasive species.

“Despite the federal government declaring the VHS outbreak an
‘emergency,’ these agencies have not taken the actions necessary
under existing laws … to control the outbreak,” the executive
summary of the legal complaint states.

Leitz said the immediate goal of the lawsuit is an “emergency
action” to halt the transport of affected waters into Lake
Superior. Mid-range goals, he said, are for the release of funds
made available in the Water Resources Act of 2007 to be used to
curb the spread of VHS by way of ballast water.

Long-term goals, according to Leitz, are for mechanisms to be in
place to ensure no new diseases or species reach Superior via
ballast water.

The lawsuit, he said is “sort of a Band-aid solution. But as we
see it, there is a gaping wound in Lake Superior, and we need to
(cover) it immediately.”

While the group supports federal legislation to protect the
Great Lakes from invasives, Leitz said there are weaknesses with
the House legislation.

“There are really positive elements, but ultimately Š it doesn’t
do enough to protect the Great Lakes,” he said of the legislation
sponsored by U.S. Rep. Jim Oberstar, D-Minn.

Leitz said the federal bill would regulate oceangoing ships
(salties), but doesn’t do enough to protect against water movement
by “lakers,” those operating within the Great Lakes system.
Further, it pre-empts state standards, which may or may not be
stronger than federal regulations. Finally, it would provide joint
authority to APHIS and the Coast Guard, something the groups
believe has led to sub-par regulation of ballast water
discharge.

“We feel there needs to be one body with the ultimate authority
to regulate in this area,” Leitz said.

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