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State of Michigan, et al v. United States Army Corps of Engineers

December 2, 2010


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


This litigation involves the Chicago Area Waterway System ("CAWS"), a system of man-made canals and natural waterways that serves as both a navigation link between Lake Michigan and the Mississippi River system and an outlet for the storm water and effluent of the City of Chicago. Plaintiffs are concerned about the spread of invasive silver and bighead carp ("Asian carp") through the CAWS into Lake Michigan. Defendants, the United States Army Corps of Engineers ("Corps") and the Metropolitan Water Reclamation District of Greater Chicago ("District"), have created, maintained, and continue to operate and control facilities within the CAWS that link Illinois waters to Lake Michigan and other connected waters.

On July 19, 2010, the States of Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania (collectively "Plaintiffs" or the "States") filed a complaint against the Corps and the District (collectively "Defendants").*fn1 Plaintiffs ask the Court to issue a preliminary and permanent relief in the form of a mandatory injunction compelling Defendants to take all available measures, consistent with the protection of public health and safety, to prevent the emigration of Asian Carp through the CAWS into Lake Michigan. The most recent*fn2 measures sought by Plaintiffs include, but are not necessarily limited to, the following:

(a) using the best available methods to block the passage of, capture, or kill bighead and silver carp that may be present in the CAWS, especially in those areas north of the O'Brien Lock and Dam;

(b) temporarily closing and ceasing operation of the locks at the O'Brien Lock and Dam and the Chicago River Controlling Works except as needed to protect public health and safety;

(c) installing and continuously maintaining permanent grates or screens, along with any debris removal equipment necessary to prevent blockage or clogging of such grates or screens, on or over the openings to all the sluice gates at the O'Brien Lock and Dam, the Chicago River Controlling Works, and the Wilmette Pumping Station in a manner that conforms to the specifications detailed in Appendix A to the Corps' Interim III Report or otherwise will be as effective at preventing Asian carp from passing through these structures as the grates or screens specified in that Report*fn3 ;

(d) installing and maintaining block nets or other suitable interim physical barriers to fish passage as needed in the Little Calumet River to prevent the migration of bighead and silver carp into Lake Michigan, in a manner that protects public health and safety;

(e) as a supplement to physical barriers, applying rotenone at strategic locations in the CAWS, especially those areas north of the O'Brien Lock and Dam where bighead and silver carp are most likely to be present, using methods and techniques best suited to eradicate them and minimize the risk of their movement into Lake Michigan;

(f) continue comprehensive monitoring for bighead and silver carp in the CAWS, including resumed use of environmental DNA testing;

(g) obtaining, at the earliest possible date, bulkheads suitable to allow closure of the O'Brien Lock; and

(h) within 90 days of the entry of the Court's Order on Plaintiffs' motion for preliminary injunction, file with the Court plans to effectuate relief requested by Plaintiffs in paragraph 1, including, as needed, designs, plans, and schedules for installation, operation, and maintenance of the physical barriers described in paragraph 1(d) [sluice gate screens and debris removal] and (e) [block nets in the Little Calumet River].

Plaintiffs also ask the Court to enter an injunction requiring the Corps to expedite the preparation of a feasibility study which develops and evaluates options for the permanent physical separation of the CAWS from Lake Michigan at strategic locations to prevent the transfer of Asian Carp or other invasive species between the Mississippi River Basin and the Great Lakes Basin, and to order Defendants to implement, as soon as possible, permanent measures to physically separate Illinois waters from Lake Michigan.

Having carefully considered the voluminous written submissions of all the parties*fn4 as well as the testimony and argument presented to the Court on August 23, September 7, 8, and 10, and October 18, 2010, the Court determines that Plaintiffs have not met the high burden necessary to obtain a mandatory preliminary injunction. In the face of multi-agency efforts to prevent Asian carp migration -- efforts that have only increased and expanded in the months since this lawsuit was filed -- Plaintiffs have not shown either a sufficient likelihood of success on the merits of their substantive claims or a sufficient prospect of irreparable harm absent the requested injunction.

I. Background

A.The Chicago Area Waterway System ("CAWS")

The CAWS is an integral part of the Lake Michigan water diversion project that had its genesis more than 100 years ago. As noted above, the CAWS serves as both a navigation link between Lake Michigan and the Mississippi River system and an outlet for the storm water and effluent of the City of Chicago. The canal system extends between Lake Michigan and the Des Plaines River, a tributary of the Illinois River and ultimately of the Mississippi River. The canal system was originally constructed to permit Chicago to dilute and dispose of its waste water without discharging all of it into Lake Michigan. Using the canal system, Illinois redirected the Chicago River, which naturally flowed east into Lake Michigan, to flow west, carried by the canal system into the Des Plaines. The Chicago Harbor Lock and Chicago River Controlling Works ("Chicago Lock and Controlling Works") were constructed at the confluence of the Chicago River and Lake Michigan. The permanent connection between Lake Michigan and the Mississippi drainage basin was made with the completion of the Chicago Sanitary and Ship Canal ("CSSC") in 1900. See Missouri v. Illinois, 200 U.S. 496 (1906). Subsequent construction included the dredging and reversal of the Calumet River, the erection of the Thomas

J. O'Brien Lock and Dam ("O'Brien Lock") on that river, and the construction of the Cal-Sag Channel linking the Calumet with the main canal. The waterway system also includes the Grand Calumet and Little Calumet Rivers, which cross the Illinois-Indiana border and provide access to Lake Michigan at points in Indiana.

By statute, the Corps operates and maintains the CSSC to sustain navigation from Chicago Harbor on Lake Michigan to Lockport on the Des Plaines River. See, e.g., Act of Dec. 4, 1981, Pub. L. No. 97-88, § 107, 95 Stat. 1135; Act of July 30, 1983, Pub. L. No. 98-63, Tit. I, Ch. IV, 97 Stat. 301. Vessels enter and exit the Chicago end of the canal system through the O'Brien and Chicago Locks. The Corps operates both locks in accordance with applicable statutes, regulations, and agreements with the District.

Both the Chicago Lock and Controlling Works and the O'Brien Lock are used for flood control purposes and water diversion, pursuant to agreements between the Corps and the District. During severe rain events, the locks and the sluice gates are opened to abate the risk of flooding by drawing water from the canal system into Lake Michigan.*fn5 The Corps owns the sluice gates at the O'Brien Lock and operates them under the direction of the District. The District owns and operates the sluice gates at the Chicago River Controlling Works. The District also owns and operates the Wilmette Pumping Station on the North Shore Channel, which includes pumps and a sluice gate; the Corps has no involvement in the operation of the Wilmette Pumping Station.

Approximately seven million tons of cargo pass through the O'Brien Lock each year, as do more than 19,000 recreational boats, many of which are docked on the Calumet River and reach Lake Michigan through the lock. Additional cargo, ferry, and recreation boats use the Chicago Lock. The locks also are used by the Coast Guard stations on the Lake Michigan side of the locks in responding to safety emergencies on the canal and in patrolling infrastructure facilities in the river system. The CAWS and its associated structures, as currently maintained and operated by the District and the Corps, provide a potential conduit for the movement of fish and other biota, including Asian carp, between the Illinois River and Lake Michigan at multiple locations on the shore of Lake Michigan.

B. Asian Carp

Several species of carp native to Asia have been imported to the United States for various reasons, including experimental use in controlling algae in aquaculture and wastewater treatment ponds. Two species of Asian carp are of particular concern here: silver carp, which can grow to lengths of three feet and weights of 60 pounds, and bighead carp,which can grow to lengths of five feet and weights approaching 100 pounds. Both silver and bighead carp readily adapt to a variety of environmental conditions, reproduce prolifically, and spread rapidly. Since their escape from ponds in the lower Mississippi River basin, both silver and bighead carp populations have become established in rivers in the Mississippi River Basin, including the Illinois River. Asian carp have substantially disrupted and in some areas largely displaced native fish populations in these rivers, impairing recreational and commercial fishing. Also, because of their large size and jumping ability, silver carp have injured boaters and caused property damage.

It is clear that the potential migration of Asian carp through the CAWS into Lake Michigan presents a threat of environmental and economic harm, as recognized by the Corps,*fn6 the United States Fish and Wildlife Service ("USFWS"),*fn7 and the Illinois Department of Natural Resources ("Illinois DNR").*fn8 The Corps, other federal agencies, and their Illinois counterparts have been aware for some time of the possibility that Asian carp could travel through the CAWS into the Great Lakes. As further explained below, various agencies have formed the Asian Carp Regional Coordinating Committee ("ACRCC"), with the goal of preventing Asian carp from establishing a sustainable population that threatens the Great Lakes. The ACRCC members include the Corps, USFWS, U.S. Coast Guard, U.S. Geological Survey, Illinois DNR, Indiana Department of Natural Resources, Ohio Department of Natural Resources, Great Lakes Fishery Commission, City of Chicago, and the District. The ACRCC's member agencies have taken steps to combat the spread of Asian carp. The Asian Carp Control Strategy Framework ("Framework"), drafted by the ACRCC and commented on by Plaintiffs, includes more than thirty steps, including: intensive efforts to monitor, confine, capture and kill Asian carp in the waterway, using electrofishing, netting, environmental DNA ("eDNA") sampling, side-scan sonar, and trained observation divers; scientific efforts to develop carp-specific poisons and "bio-bullets," attractant and repellent pheromones, and sonic or electrical means to disrupt carp reproduction; and further validation of the Coast Guard's already-in-place restrictions to prevent the possibility that Asian carp or carp eggs might be carried through vessels' ballast or bilge water.*fn9

Turning to specifics, Congress has given the federal agencies a number of tools to combat the threat of Asian carp migration into the area. For example, in 1996, Congress directed the Corps to "investigate and identify environmentally sound methods for preventing and reducing the dispersal of aquatic nuisance species" between the Great Lakes basin and the Mississippi River basin through the CSSC, and authorized the Corps to carry out the dispersal barrier demonstration project. See Non-indigenous Aquatic Nuisance Prevention and Control Act of 1990, as amended by the National Invasive Species Act of 1996, 16 U.S.C. §§ 4722(i)(3)(A) and

(3)(C). Pursuant to Congressional authorization, the Corps has adopted a four-pronged strategy to prevent the dispersal of Asian carp through the CSSC: (i) designing, constructing, maintaining, and improving the electric fish dispersal barrier; (ii) monitoring for the presence of Asian carp in the CAWS; (iii) executing an efficacy study regarding the dispersal barrier so that near-term solutions to evolving information can be devised and applied; and (iv) executing the long-term Great Lakes and Mississippi River Inter-Basin Study ("GLMRIS") study in order to, among other things, gain a scientifically-based understanding of the impacts of various long-term solutions and make recommendations for permanent solutions.

As discussed in greater detail below, the first electric dispersal barrier ("Barrier I") became operational in 2002. In 2003, the Corps began the design and construction of a permanent electric dispersal barrier ("Barrier II") under Section 1135 of the Continuing Authority Program. See Water Resources Development Act of 1986, Pub. L. No. 99-662, § 1135, 33 U.S.C. § 2309a. In 2005 and 2007, Congress specifically authorized the construction of Barrier II, and authorized the Corps to upgrade and make permanent Barrier I. See District of Columbia Appropriations Act, 2005, Pub. L. No. 108-335, § 345, 118 Stat. 1352; Water Resources Development Act of 2007 ("2007 WRDA"), Pub. L. No. 110-114, § 3061(b)(1), 121 Stat. 1121. A second dispersal barrier ("Barrier IIA") was constructed in 2006 and, after extensive testing, went into operation in April of 2009. A third dispersal barrier ("Barrier IIB") is under construction and the Corps expects to put it into full service by the end of fiscal year 2010.

In addition to authorizing further construction on the electric dispersal barrier, the 2007 Water Resources Development Act authorized the Corps to study the efficacy of the dispersal barrier in preventing Asian carp from migrating through it, and its susceptibility to being bypassed ("Efficacy Study"). See 2007 WRDA § 3061(b)(1)(D). As set forth in greater detail below, the Corps is conducting the Efficacy Study in interim steps, and anticipates completion of the Final Efficacy Study by Spring 2011. The 2007 WRDA also authorized the Corps to consult with appropriate Federal, State, local, and non-governmental entities in order to conduct a "feasibility study of the range of options and technologies available to prevent the spread of aquatic nuisance species between the Great Lakes and Mississippi River Basins through the Chicago Sanitary and Ship Canal and other aquatic pathways." See 2007 WRDA § 3061(d). Assuming sufficient funding, the Corps estimates that the earliest anticipated completion date for the CAWS portion of this long-term feasibility study, also known as GLMRIS, would be 2015.

In Section 126 of Fiscal Year 2009's appropriations legislation for the Corps ("Section 126"), Congress granted the Secretary of the Army temporary emergency authority to undertake "such modifications or emergency measures as [he] determines to be appropriate, to prevent aquatic nuisance species from bypassing the [electric barrier] and * * * to prevent aquatic nuisance species from dispersing into the Great Lakes." Energy and Water Development and Related Agencies Appropriations Act, 2010, Pub. L. No. 111-85, § 126, 123 Stat. 2845 (2009). The Secretary has delegated that authority to the Assistant Secretary of the Army (Civil Works). The Section 126 authority was scheduled to expire on October 28, 2010; however, the parties indicated at the October 18 hearing that the Section 126 authority has been extended through a continuing resolution until at least December 3, 2010.

Additionally, legislation is currently pending before Congress that would provide the Corps with further authority to address the migration of aquatic nuisance species through the CAWS. The Permanent Prevention of Asian Carp Act of 2010 (S. 3553 and H.R. 5625) would require the Corps to study the feasibility and best means of implementing the hydrological separation of the Great Lakes and Mississippi River basins, and prepare a final report within eighteen months. Section 3013 of the Water Resources Development Act of 2010 (H.R. 5892) would amend Section 3061(d) of the 2007 WRDA to require that the Corps' long-term feasibility study include a "fully developed analysis of an alternative for hydrologic separation between the Great Lakes and the Mississippi River basins." H.R. 5892 also would authorize the Corps to upgrade and/or relocate Barrier I and to construct additional barriers or other fish deterrents in the vicinity of the CAWS.

In addition to the focus on the CAWS above the fish barriers, additional agencies have been undertaking further steps to reduce the threat to the Great Lakes, such as using commercial fishing to reduce the Asian carp population below the fish barriers, enforcing prohibitions on transporting injurious wildlife, and educating the public about the dangers that Asian carp pose. The ACRCC also has been studying other potential pathways for Asian carp to enter the Great Lakes. For example, the ACRCC is working with Plaintiff Ohio to specifically address the Maumee River, which has been identified as a potential pathway for Asian carp to escape into Lake Erie from Indiana's Wabash River.

C. Efforts to Prevent Asian Carp from Migrating to the Great Lakes

1. eDNA

For some time, federal and state agencies have used telemetry (fish tagging and tracking), electrofishing (a technique that uses electrodes to attract and stun fish for easy capture), and commercial netting to monitor Illinois waterways for the migration of Asian carp. However, because those technologies are limited in their ability to detect fish present in very small numbers, the Corps decided to canvass the scientific community for additional, more sensitive detection technologies. As a result, in August 2009, the Corps entered into a cooperative agreement with the University of Notre Dame to use an experimental technique known as environmental DNA ("eDNA") testing. Fish shed DNA into the environment in various microscopic bits of tissue, such as intestinal cells released during defecation. The eDNA technique involves collecting water samples, filtering them for solids, extracting all DNA from the solids, and then analyzing the DNA for genetic markers unique to the bighead and silver carp species.

In December 2009, this eDNA testing method was examined in detail by a four-member team of experts. The quality assurance ("QA") audit team was led by the Environmental Protection Agency with an observer from the Corps also present. In their Summary, the QA team confirmed that the genetic markers utilized by the eDNA testing method detected only the target fish species, endorsed the eDNA testing field and laboratory protocols, acknowledged that the methods used during testing minimized the possibility of reporting false positive results, and concluded: "Our team believes that the eDNA method [that the Corps is] using is sufficiently reliable and robust in reporting a pattern of detection that should be considered actionable in a management context. We have a high degree of confidence in the basic PCR method [that the Corps is] using for detecting Silver and Bighead carp environmental DNA."

As discussed in greater detail below, Plaintiffs' expert Dr. David Lodge of the University of Notre Dame testified that a series of eDNA results collected between in 2009 and 2010 indicates the presence of Asian carp DNA in the CAWS north of the Lockport Lock, in the North Shore Channel, in the Calumet-Sag Channel in the vicinity of the O'Brien Lock, in the Calumet River, and in Calumet Harbor.*fn10 In December 2009, a single, dead bighead carp was recovered from the CAWS north of the Lockport Lock (but below the barrier), and on June 22, 2010, a single, live bighead carp was recovered from Lake Calumet, north of the O'Brien Lock and Dam, six miles from Lake Michigan (and above the barrier). No physical barriers to fish passage currently exist anywhere between the O'Brien Lock and Lake Michigan.

The Corps and the District have suggested other possible explanations for the existence of Asian carp DNA in the CAWS, such as excrement from humans or birds that have eaten Asian carp, Asian carp released or disposed by humans in the CAWS, or release of ballast water that might contain Asian carp DNA. Dr. Lodge considered and rejected all of those explanations in favor of the conclusion that the eDNA results mean that a live Asian carp was in the vicinity of the sampled water within two days of the sampling:

Based on our understanding of the waterway and other potential pathways, we believe that no explanation other than the presence of multiple living silver and bighead carps can plausibly explain the entire spatial and temporal pattern of positive results for silver and bighead eDNA in the waterway. The presence of living silver and bighead carps north of the electric barriers is most plausibly explained by failures of the electric barrier to completely restrict the northward movement of silver and bighead carps.

At present, eDNA evidence cannot verify definitively whether live Asian carp are present, the number of Asian carp in an area, or whether a viable population of Asian carp is present. Also, a positive result does not reveal how Asian carp DNA traveled to that location. For example, the current testing does not explain whether the DNA is from a live or dead Asian carp, from water containing Asian carp DNA transported from other locations, or other sources. However, at least one witness on the defense side of the case agreed with Dr. Lodge's assessment that the presence of Asian carp DNA probably indicates the presence of at least one live Asian carp in the area of the positive test. The Corps has contracted with Battelle Corporation to perform an independent external peer review of eDNA sampling and processing. Results of the peer review are expected to be complete by December 2010.

2. Netting, Fishing, and Poisoning In addition to eDNA testing and analysis, the ACRCC continues to rely on netting and fishing operations conducted by the State of Illinois, USFWS, and Corps employees to inform the Corps and other agencies about the potential presence of Asian carp above and below the barrier.*fn11 During February and March 2010, USFWS crews sampled fixed sites prescribed in the monitoring plan, choosing the sites based on which sites had multiple eDNA positive samples and which sites were likely habitat for Asian carp. Fixed site sampling consists of one crew of three biologists conducting electrofishing operations. During these sampling events, no Asian carp were collected. Sampling efforts also were conducted in May 2010 in the North Shore Channel in response to positive eDNA results. Six federal and state crews conducted netting and electrofishing operations, and commercial fishers were contracted to assist in netting operations. No Asian carp were captured during that effort.

The ACRCC monitoring plan indicated that positive eDNA detections within a portion of the Little Calumet River in the Chicago Area Waterway during 2009 and 2010 warranted a response action to capture and remove any Asian carp. From May 20 through May 27, 2010, the multi-agency team authorized the application of a fish poison called rotenone to an approximately two and a half mile stretch of river immediately below the O'Brien Lock and Dam. More than 130,000 pounds of fish were collected; however, no Asian carp were found.

On June 22, 2010, one bighead carp was captured in Lake Calumet during a commercial fishing operation conducted pursuant to the workgroup's plan. This was the first Asian carp captured above the electrical barriers in the CAWS. The capture prompted another sampling during the week of June 28, 2010. For eleven days, three USFWS crews and one crew from the Great Lakes Indian Fish and Wildlife Commission joined Illinois DNR crews and contracted commercial fishers in electrofishing and netting in the Calumet River from the O'Brien Lock and Dam to Lake Michigan. Agency crews deployed in excess of 16,500 yards of trammel nets and two seine hauls using a 2,400-foot seine. More than ten miles of commercial nets were set, resulting in a total catch of more than 15,000 fish of seventeen species. No additional Asian carp were captured.

3. Electronic Barriers

As previously set forth, in 1996, Congress directed the Corps to study preventive measures to keep invasive species out of the CSSC. 16 U.S.C. § 4722(i)(3). Since that time, the Corps has constructed two electric barriers and is constructing a third on an expedited basis. An electric dispersal barrier operates by creating an electrical field in the water of the canal, which either immobilizes fish or creates sufficient discomfort to deter them from attempting to pass through the area. The field is created by running direct electrical current through steel cables secured to the bottom of the canal. The barriers are located at the southwestern end of the canal, a short distance above the Lockport Lock. The first electric dispersal barrier (Barrier I) was authorized by Congress in 1996 and became operational in 2002. In January 2003, the design and construction of a second barrier (Barrier IIA), which has greater capabilities, was approved under Section 1135 of the Continuing Authority Program, Water Resources Development Act of 1986, Pub. L. No. 99-662, § 1135, 100 Stat. 4082, and then specifically authorized by Congress in 2005 and expanded in 2007. Barrier IIA was operational by March 2006, and after trials and safety testing to address potential risks to human life and to vessels in navigation, has been in full-time operation since April 2009.*fn12 The third barrier (Barrier IIB), which is scheduled to be completed in 2010, is designed to be at least as capable as Barrier IIA. Having both barriers in operation will permit one to continue operating during periods that the other must be shut down for maintenance. Due to safety concerns, the Corps operates these dispersal barriers in consultation with the Coast Guard.

Barrier IIA was taken offline for necessary maintenance in early December 2009, while Barrier I remained in operation. Barrier I then underwent maintenance after Barrier IIA resumed operation. To combat the threat that Asian carp would cross through the barrier location while one of the barriers was offline, the USFWS and other participating agencies -- including the Michigan Department of Natural Resources -- executed a "Rapid Response" containment operation, applying the fish poison rotenone to a 5.7-mile stretch of the canal downstream of the fish barriers, between the barriers and the Lockport Lock. Caged carp were used to verify that the poisoning was effective to kill fish at various depths throughout the treated stretch of the canal. Biologists collected between 30,000 and 40,000 dead or surfaced fish during this operation. One dead Asian carp was found five miles downstream of the barriers.

4. Efficacy Study

Since January 2009, the Corps, as directed by Congress, has been conducting studies to evaluate threats to the effectiveness of the electric barrier ("Efficacy Study"). Upon the discovery of the first positive eDNA evidence in the CAWS in late July 2009, the Corps has undertaken four interim studies -- Interim I, II, III, and IIIA -- on an accelerated basis. The Assistant Secretary has approved three of those recommendations under her authority under Section 126. The Corps anticipates completion of the Final Efficacy Study by Spring 2011, following public review of the final draft study in late 2010.

In Interim I, the Corps studied whether it was possible for Asian carp to enter the CSSC from either the Des Plaines River or the Illinois and Michigan Canal ("I&M Canal"), both of which parallel the CSSC below and above the barrier. The Corps determined that a significant flood could open pathways through which any Asian carp that might be present in the Des Plaines River or I&M Canal could access the CSSC above the fish barrier, and thus bypass it.

Therefore, the Interim I Report recommended construction of jersey-type barriers and, where physical barriers would induce flooding, tight reinforced mesh fencing, between the Des Plaines River and the CSSC. The study also recommended the blockage of culverts between the CSSC and the I&M Canal. Approved by the Assistant Secretary in January 2010 pursuant to Section 126, the construction along the I&M Canal and the Des Plaines River has been completed as of October 2010.*fn13 Interim II will further refine the optimal operating parameters for the fish barriers, including potential safety risks of a change in operation. The Corps intends to complete the study in 2010.

Interim III evaluated whether and how to modify the operation of the Chicago and O'Brien locks to deter Asian carp migration into the Great Lakes. The Assistant Secretary approved the Interim III Report on July 13, 2010. In response to the discovery of Asian carp eDNA above the electric barrier in late 2009, the Corps looked at what additional tools could be used to impede Asian carp migration. Specifically, the Corps considered whether structures in the CAWS, including the locks, pumping stations, and sluice gates, could be operated so as to impede fish passage while continuing their use for their intended purposes.

In order to evaluate the impact of temporarily closing the locks, the Corps sent a formal request to the USFWS, requesting a risk analysis of the proposed alternatives for modifying operations of the Chicago and O'Brien Locks. In the short term, the Corps was considering a range of alternative lock operations within its existing statutory authorities ...

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