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The Hogan administration is moving to block Maryland oyster farmers from leasing spots in the Chesapeake Bay and its tributaries where there’s still a smattering of wild oysters — a step that aquaculture advocates warn will stifle the state’s small but growing industry.

The Department of Natural Resources has announced that it plans to propose a regulation that would enable it to deny a lease application wherever it finds even a very low density of wild oysters on the bottom or when “physical, biological and economic conditions” warrant reserving the area for the public fishery. 

Workers tend the oysters at an aquaculture operation in the Potomac River in St. Mary’s County, MD. Credit: Dave Harp / Bay Journal Media

The move comes in response to complaints from watermen, who contend that their livelihoods are threatened by having any more potentially productive oystering areas leased to private shellfish cultivation.

“We’ve given up enough bottom already,” Queen Anne’s County waterman Troy Wilkins said at a recent virtual meeting of the DNR Oyster Advisory Commission.

Watermen have long chafed over the state’s move a decade ago to greatly expand its oyster sanctuaries, which put some reefs off-limits to wild harvest. They also have repeatedly protested aquaculture lease applications, citing potential conflicts with crabbing or wild oyster harvests.

DNR officials say they want to establish a process for creating or expanding Public Shellfish Fishery Areas, which are reserved exclusively for wild harvest.

“There are occasions — and they’re rare — when a lease application comes forward, and there are populations of oysters [there that] the fishery has been working on or could be working on,” said Chris Judy, director of the DNR shellfish program.

But oyster farmers contend that the DNR has already been withholding approval or forcing changes to some lease applications when watermen or others object. The rule will only make it easier, they say, for watermen to block them from leasing good spots for cultivating shellfish.

“This is basically a big land grab to the detriment of aquaculture,” said Tal Petty, owner of Hollywood Oyster Co. in St. Mary’s County, where he raises bivalves in cages in a creek off the Patuxent River.

There are already 180,000 acres of the Bay and its tributaries that since 2009 have been officially designated as Public Shellfish Fishery Areas. There are another 110,000 acres that are unclassified but still open to wild harvest.

In comparison, about 325 leases encompassing about 6,500 acres have been issued over the past decade, according to the DNR. A few are used for raising clams or scallops, but the vast majority is for farming oysters. There are about 100 applications pending with the DNR seeking to lease another 2,000 acres. Protests have been filed against awarding about 15 of those pending leases.

Petty, a board member of the East Coast Shellfish Growers Association, said the rule would severely limit the state’s aquaculture industry, which has grown since 2010 and produced about 60,000 bushels of oysters in 2019, according to DNR figures. The wild harvest during the 2018-2019 season was 145,000 bushels, though it nearly doubled in the most recent season ending in March.

“The tragedy is that Maryland is about to significantly reduce the leasable area for aquaculture, using nonscientific methods and measures,” Petty said. 

Oyster density debate

DNR officials say they’re not expecting to create vast new areas off-limits to aquaculture but want to correct a regulatory imbalance. Under current rules, oyster farmers may petition to declassify a Public Shellfish Fishery Area so that it can be leased, but there is no comparable procedure for creating new or expanding one.

Judy said the DNR was considering denying a lease application if a survey it conducts finds as few as 5 wild oysters per square meter on the bottom. But watermen have insisted that the threshold for denying a lease be set even lower, to block a lease for a site if there is even one oyster per square meter on the bottom.

Some watermen who use power dredges or patent tongs to harvest oysters contend they can get their limit of 10 to 24 bushels per day, depending on the number of license holders on a boat, even if there are fewer than 5 oysters per square meter on the bottom.

“If you give me 2 or 3 oysters a meter, I’ll put a deck-load on my skipjack,” said Russell Dize, a skipjack captain from Tilghman. Skipjacks, which use sail or motor power to haul dredges, are allowed to harvest up to 100 bushels a day.

Watermen harvest oysters from Maryland’s Choptank River. Credit: Dave Harp / Bay Journal Media

Watermen also complain that letting oyster farmers lease areas that already have some wild oysters effectively gives them a windfall, allowing them to make some quick money harvesting and selling those bivalves. But oyster farmers point out that they’re required by state regulations to plant and cultivate far more oysters in the leased area, which requires substantial investment up front in gear and supplies. It takes at least two to three years before they realize any income from raising those planted oysters large enough to harvest.

Two DNR advisory panels dominated by watermen and their supporters have voted to endorse the watermen’s position that leases should be denied if there is even one wild oyster per square meter on the bottom. An aquaculture advisory commission urged the department to set the lease denial threshold much higher, at 25 oysters per square meter.

“It appears to be a one-sided proposal to increase the oyster harvest at the expense of restoration and aquaculture efforts that are helping to bring Maryland’s oysters back,” said Allison Colden, a fisheries scientist with the Chesapeake Bay Foundation.

Though outvoted, several members of the DNR Oyster Advisory Commission argued that the DNR should hold off on the rule and include it as part of a broader effort by the commission to forge a consensus among watermen, oyster farmers and environmentalists over how the state’s oysters ought to be managed.

Tom Miller, director of the Chesapeake Biological Laboratory with the University of Maryland Center for Environmental Science, questioned the scientific basis for the rule. Miller, a fisheries scientist, said it’s the DNR’s purview to decide where to allow commercial harvest, but he said research shows that oyster populations need to be much denser than even 5 oysters per square meter to be likely to reproduce successfully and sustain themselves.

Ann Swanson, executive director of the Chesapeake Bay Commission, pointed out that experts working to restore the Bay’s severely diminished oyster habitat only consider a reef capable of sustaining itself when it has at least 50 oysters per square meter of varying ages and sizes covering at least 30% of its surface. 

Long history of friction

The friction between watermen and oyster farmers in Maryland has a long history.

“Watermen have wanted all of the Bay bottom from the time the first lease law was passed in 1830,” said Don Webster, a Maryland Sea Grant aquaculture specialist and advocate for the industry.

Watermen, who once wielded considerable political clout, succeeded in getting laws passed that from the early 1900s until the early 2000s severely restricted leasing. All a waterman had to do to block a lease then was to swear that he had harvested oysters there sometime in the previous five years.

That changed in 2010, with the passage of a new law that made large areas available for leasing. The Bay’s oyster population had been decimated by then by diseases, overharvesting and habitat loss. A study by the U.S. Army Corps of Engineers estimated that there were only 36,000 acres of productive oyster habitat left in Maryland’s portion of the Bay.

State lawmakers decided it was time to encourage aquaculture to take harvest pressure off the struggling oyster population, and they also expanded Maryland’s network of oyster sanctuaries, which now cover about 250,000 acres. Watermen have since complained that the expansion took away many productive harvest areas. Though some may have once brimmed with oysters, a review of DNR data show that only about 10% of the state’s overall wild harvest came from those new sanctuaries in the year before they were set aside.

At the same time it moved to boost aquaculture and enlarge sanctuaries, the DNR also established Public Shellfish Fishery Areas that would be reserved for wild harvest. Those areas encompassed three-quarters of the remaining productive oyster habitat, according to a DNR report.

JD Blackwell sorts through baby oysters at his aquaculture operation on the Potomac River is St. Mary’s County, MD. Credit: Dave Harp / Bay Journal Media

While harvests have rebounded some in the past decade, they remain well below their historic level, and watermen have pressed to get at least some of the sanctuaries reopened. The DNR in the Hogan administration attempted to do that but was blocked by the legislature amid an outcry from environmentalists.

Oyster farmers say the DNR has been conferring for a year or two with watermen and advocates for waterfront property owners to address their complaints about aquaculture. Meanwhile, they say they have had a harder time getting leases when watermen or property owners object.

“DNR has decided to kill oyster aquaculture,” contended JD Blackwell, an oyster farmer who leases sites in St. Mary’s County. “The excitement that existed in 2011 and 2012 to give birth to a new industry is gone. Oyster aquaculture will wither and die from this point forward. Opportunity missed.”

Critics of the rule also say it’s self-defeating for watermen, because a growing number of them are getting into aquaculture to supplement or replace wild harvests.

One of those is Rachel Dean, a Calvert County waterwoman. She applied more than three years ago to lease 26 acres in the Patuxent River to raise oysters on the bottom. At least one waterman and a homeowner objected, she recalled. And when the DNR sampled the bottom there, it found “at least some” oysters on half of the proposed lease site, with an overall density of about 2 bivalves per square meter, according to a 2019 DNR memo.

The memo, signed by the DNR’s Chris Judy, proposed roughly halving the size of the lease to exclude what it called a “functional oyster bar.” Dean said the reduction would diminish the viability of the site for raising oysters, so they resisted it. The application remains on hold, and Dean said the department has not responded when she has asked whether it was formally denying the application.

Neither Judy nor Karl Roscher, head of the DNR’s aquaculture division, responded to requests for interviews or information.

“We’ve got to find a balance,” Dean said, between oyster farming and the wild fishery. “If this regulation goes through,” she added, “there will be no more bottom leases.”

The DNR is taking public comments on the issue until 11:59 pm Friday, Nov. 7, after which it has indicated it plans to formally propose a regulation. Comments may be submitted online here.

This article originally appeared on BayJournal.com on November 5, 2020, and is republished with permission.


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