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Judge dismisses VHS ballast case against federal government

These gizzard shad died from VHS disease on the lower Great Lakes.

Minnesota and Wisconsin conservation groups have been rebuffed in their effort to force the federal government to regulate ships' ballast water to stop the spread of a fish-killing disease.

Federal Judge James Rosenbaum has dismissed a case brought by the groups against the U.S. Department of Agriculture and U.S. Coast Guard.

While other state and federal efforts have focused on passing new regulations to require ships to treat their ballast water to prevent spreading foreign species, the Duluth Chapter of the Izaak Walton League, Save Lake Superior Association and other groups claimed existing federal laws already require federal agencies to regulate ballast water as pollution.

The groups claimed there was an immediate threat that demanded regulatory action, namely the spread of viral hemorrhagic septicemia, a disease that has killed several species of fish as it sweeps across the Great Lakes.

The disease is believed to have come from foreign ports to the Great Lakes in ships' ballast water. It has spread as far west as Lake Huron and some inland Wisconsin lakes.

Conservation groups say requiring ballast treatment to kill organisms before they are released could keep VHS out of Lake Superior.

But Rosenbaum disagreed, saying there's no proof as yet that VHS will spread to Lake Superior and no evidence that, even if ballast regulations are applied, the disease won't spread to the lake.

"There is no injury in fact, and it's possible none will occur," Rosenbaum wrote in his decision, filed Thursday in federal court in Minneapolis. "The individual members do not have standing, therefore neither do the plaintiff associations who bring this suit on their behalf."

Curt Leitz, conservation chairman of the Duluth Izaak Walton League, said Rosenbaum's reasoning -- that plaintiffs would have to wait for VHS to spread to Lake Superior before requiring action -- is tantamount to "waiting for an influenza outbreak before offering people vaccinations."

The groups, which also include Minnesota and Wisconsin Trout Unlimited chapters, are considering whether to appeal Rosenbaum's decision.

In related action, the federal Environmental Protection Agency earlier this month said it would consider adding ballast regulation to its new rules on ship pollution. Congress also is mulling legislation to require ships to treat their ballast.

Minnesota and Wisconsin have enacted state regulations that eventually will require saltwater ships to treat ballast water. Minnesota's rule also applies to Great Lakes vessels.

Starting this month, any ship entering Superior or Duluth will need a Minnesota permit that tells the state where they have been, how much ballast they will release and what they are doing to prevent the spread of foreign species. That permit is the first step toward ballast treatment rules that kick-in by 2016.

VHS is one of more than 180 foreign species in the Great Lakes. Scientists say many of those arrived in ships ballast. Ballast is used as balance for ships as they load and unload and sometimes when they are underway.