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Sailors didn’t bring the grotesque goby, but they could pay for it

2008 May 17
When I was 8 years old, I caught perch. Last summer my 8-year-old grandson caught gobies. At first he was fascinated by the prehistoric-looking little fish. Then he was disgusted because there were no perch, only gobies. I just wanted to cry.

The goby, a grotesque, aggressive bottom-feeder, is a fit symbol for what is happening to my (excuse me, I take this personally) Lake Michigan and the rest of the Great Lakes. Their ecosystems are being attacked by imported organisms.

The goby, native to the Black Sea, is among as many as 80 species from distant waters that have turned up in the lakes since 1970. These foreign fish, crustaceans and mollusks reproduce explosively in the lakes and usurp the habitat and food supply of native fish. Which is why my grandson caught gobies and not perch.

Gobies were first discovered in the St. Clair River near Detroit in 1990. Five years later they were found at Duluth on Lake Superior. Now they're just about everywhere in the lakes. It's not a coincidence that they are multiplying while native fish like the yellow perch are diminishing.

How the goby got to the lakes is no secret, but for anyone who might not know, I offer this clue: It did not come in the bilge of a Catalina 30.

I wish someone had given that clue to the federal judges who issued a decision in September 2006 meant to prevent the accidental importation of invasive species. The court meant to do good, but got something badly wrong when it decided to put the invasive-species onus on the owners of sailboats and other recreational crafts along with the real culprits-oceangoing commercial ships that discharge contaminated ballast water into the lakes.

By failing to differentiate between the innocent and the guilty, the decision by the United States District Court for the Northern District of California could mean that every recreational boat in the country will have to have a permit to discharge such benign liquids as water used to cool engines and water from galley sinks and bilges.

Any hope that this pointless nuisance and expense won't be inflicted on America's millions of pleasure boat owners rests on the decision being overturned by a higher court or overridden by Congress. Normally the odds of that happening to a ruling as flawed as this one would be pretty good. But in this case they might not be-because in some influential quarters the ruling is being acclaimed as a judicial master stroke.

How did we get into this? With the best intentions, of course.

In 1999, environmental groups petitioned the Environmental Protection Agency to revoke an exemption from the Clean Water Act that allows vessels to discharge water "incidental to the operation of the vessel." The petitioners' target was specifically ballast water.

The petition had merit. The exemption, issued in 1973, was too broad. It made sense to exempt the harmless discharges of recreational boats. But to also shield the discharge of ballast water from freighters from clean water requirements was an invitation to the environmental havoc the lakes now face.

No one questions that most of the lakes' invaders arrive in ballast water. Ships take on ballast loaded with aquatic organisms from places like the Black Sea and then pump it and the organisms out when they arrive in the Great Lakes. Yet the EPA said no to regulating this source of living pollution.

It was an answer neither the petitioners nor the federal court would accept. The environmentalists sued the EPA (Northwest Environmental Advocates v. U.S. Environmental Protection Agency), and the court ruled the agency did not have the authority to grant the exemptions.

No harm done yet, but then, though the case was based primarily on ballast water, the court ruled in a follow-up decision that other discharges could not be exempted either. Judge Susan Illston instructed the EPA to write rules to regulate discharges from all vessels by September of next year.

Missing the point about who is responsible for invasive species in the Great Lakes should render the decision ridiculous. But the fact that something is being done at last to force the EPA to stop averting its eyes from an ecological crime has environmental groups and other stakeholders praising the decision and overlooking or, out of ignorance, approving the unpleasant details concerning recreational boats.

This was clearly not the federal judiciary's finest hour. It's fair to ask whether the judges understood the difference between a 300-foot ocean-

going freighter and a Catalina 30. Hint: One discharges millions of gallons of contaminated ballast water, one doesn't release any ballast water.

Did they know that the discharge of sewage and oil is already regulated in the lakes and coastal ocean waters and the "incidental" water pleasure boats discharge poses no threat to the environment?

Did they give any thought to how the EPA and the states will manage to issue permits to some 18 million boaters? (At great expense, I would guess, an expense that will no doubt be charged back to boat owners.)

The case is being appealed to the Court of Appeals for the Ninth Circuit. This time advocates for boat owners and the boating industry will be represented. In the interest of keeping it simple and avoiding further misunderstanding, I would propose a very brief brief: Recreational boats don't carry ballast water and don't harbor invasive species. The water they do discharge is not harmful. Therefore, they do not need to be regulated under the Clean Water Act.

The same point should be made to Congress.

What galls about the ruling now in effect is that it obscures the target. The commercial ships responsible for corrupting the lakes' ecosystems have been lumped with millions of scapegoated pleasure boats and you have to wonder whether an overwhelmed EPA will be able to see them.

Next time my grandson catches a goby, it's not going to make me sad. It's going to make me mad.