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Asian carp are the latest addition to an extensive list of invasive species that pollutes American waterways. But unlike other prominent invasive species, Asian carp were intentionally brought into the United States to control algae growth in Southern aquaculture ponds. Torrential flooding provided an avenue for these fish to escape into the Mississippi River, and since then, the Asian Carp have migrated northward into the Illinois River and the Chicago Area Waterway System. Along the way, their incessant hunger and prolific breeding habits have enabled Asian carp to monopolize food sources to the detriment of native fish populations. Asian carp have now reached the doorsteps of Lake Michigan, and while methods such as electric fences and the application of poison have temporarily kept the fish out of Lake Michigan, the expense and unreliable nature of these measures will prevent their prolonged success. Once Asian carp breach Lake Michigan, these fish will have a limitless conduit to enter the rest of the Great Lakes. This Comment discusses the judicial and legislative actions taken in response to the looming threat Asian carp pose to the Great Lakes. Specifically, this Comment addresses how the recent or proposed actions taken to stop the Asian carp migration are either infeasible or ineffective. This Comment argues that the most advocated solution, hydrological separation, which involves permanently separating Lake Michigan from the Chicago Area Waterway System and the Chicago Sanitary and Ship Canal, would impose too great a burden on commercial navigability to be a viable option. Despite the Seventh Circuit's refusal to grant a permanent injunction requiring hydrological separation in Michigan v. U.S. Army Corps of Engineers, state and federal agencies tasked with devising solutions to keep Asian carp out of the Great Lakes remain fixated on hydrological separation. Furthermore, this Comment will argue that besides from being impractical, hydrological separation conflicts with the U.S. Army Corps of Engineers' statutory duties to maintain navigable waterways, and without legislative action, these waterways cannot be separated. This Comment argues that the recently enacted Asian Carp Prevention and Control Act, as is, fails to either prevent or control Asian carp from infesting Lake Michigan. This Comment then proposes adopting a program currently used to combat another invasive species, the pike minnow, in which fishermen are nominally paid for catching and removing Asian carp before they have an opportunity to enter Lake Michigan.

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Northern Illinois University Law Review

Suggested Citation

Matthew A, Kratky, Comment, Gone Fishing: Angling for an Answer to Asian Carp Migration After the Seventh Circuit’s Refusal to Allow Hydrological Separation, 36 N. Ill. U. L. Rev. 177 (2015).

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