Debate swirls around proposed regulation that could set aside more parts of the Chesapeake Bay for commercial oyster harvest

Tal Petty calls the water in his corner of the Patuxent River “magic.”

The oysters living in its depths draw a special mineral taste from clay on the river floor, and fossils along the shore, he said. And those oysters wouldn’t even be there if it weren’t for Petty, who grows them in underwater cages before selling them nationwide.

His business is quite a bit different from that of traditional watermen, who tong the bottom of the Chesapeake Bay and its tributaries for wild oysters. And environmentalists argue it’s an improvement, since adding oysters to the bay means adding thousands of natural filters capable of removing harmful nitrogen and sediment as they feed.

Lately, however, oyster farmers and watermen have been at odds over a regulation that could make it more difficult for oyster farming operations like Petty’s Hollywood Oyster Company to get started.

The Maryland Department of Natural Resources is considering a rule that would make any area of the Chesapeake Bay or its tributaries with five or more wild oysters per square meter eligible to become a “public shellfish fishery area.” These zones are exclusively for commercial harvesters.

When the state established the original oyster fishery areas in 2010, it created a mechanism to remove an area if someone applied to lease it for aquaculture. But it didn’t establish a process for adding new fishery areas.

Watermen argue the new rule would correct that imbalance. They worry productive swathes of the bay are being scooped up by oyster aquaculture operations, which do not rely on natural oyster bars.

But oyster farmers say the imbalance was intentional: It was meant to encourage aquaculture, thereby improving the health of the bay.

ExpandAutoplay

Image 1 of 12

Hollywood Oyster Company cages can be seen in the shallows on the edge of the Patuxent River near the company's dock. (Jerry Jackson/Baltimore Sun)

Generally, oyster farmers and environmentalists don’t want any new commercial fishing areas, or they want there to be at least 25 oysters per square meter before an area is set aside for the fishery. Meanwhile, some watermen want any zone with at least one oyster per square meter — rather than five — to be designated for commercial oyster harvest.

The regulation still has a way to go before it’s actually proposed, said Gregg Bortz, a Department of Natural Resources spokesperson.

“The department was simply seeking feedback on the idea through scoping and has received public comment, which will need to be compiled and reviewed before determining any next steps,” Bortz wrote in a statement.

During an October meeting of the Oyster Advisory Commission, which advises the Department of Natural Resources on oyster matters, the department’s shellfish division director Chris Judy said public comment on the proposal could extend through mid-February, and it could take effect in late March.

The regulatory battle is occurring during a difficult market for oysters. With the coronavirus pandemic raging, demand for Maryland oysters has declined, depressing oyster prices. Experts say consumers shying away from restaurants are reluctant to buy oysters to eat at home, since they can be difficult to shuck and prepare.

Industry groups should be talking about how to solve that problem, said Jeff Harrison, president of the Talbot Watermen’s Association.

“Instead we squabble over little things like this back and forth: They want 25, we want one. What does that do?” Harrison said.

Harrison said he’d like to see the discussion put on hold as COVID-19 ravages the oyster industry. But said he stands by setting the standard at one oyster per square meter.

“Five is a lot. I’m telling you.” Harrison said. “My understanding of aquaculture was supposed to take barren bottom.”

“They’re starting to encroach in on areas that we already are working.”

DNR’s proposal does allow for areas with an average oyster density between one and five oysters per square meter to be considered for commercial harvesting areas. But they must show other signs of productive oyster growth.

Many in aquaculture argue the regulation disadvantages an industry that deserves government support, since filling the bay with extra oysters will help the state reach its environmental goals for the bay and its tributaries.

“You are economically motivated to increase the density of those oysters if you’re in aquaculture,” Petty said.

“This is a huge land grab,” Petty said of the DNR proposal.

Some oyster farmers, though, favor DNR’s proposal. Kevin McClarren, general manager of the Choptank Oyster Company, said it could rescue an industry with too much supply — a problem exacerbated by the COVID-19 — by establishing a new barrier to entry.

”From my long view, what’s bad for the industry currently is too much oysters on the market,” McClarren said. “So, if this measure that they’re going to introduce is helpful to the waterman, I say go for it.”

Meanwhile, scientists have expressed concern that areas with five oysters per square meter are precisely the areas that might benefit most from being declared oyster sanctuaries or farms.

“From an ecological perspective, that low density of oysters is just not what would be considered productive,” said Allison Colden, Maryland fisheries scientist for the Chesapeake Bay Foundation.

Colden also took issue with the department’s timing, and argued that the Oyster Advisory Commission, on which she serves, ought to be making these types of decisions. In fact, the commission is currently working on a new fishery management plan for oysters.

“It’s been 11 years that these public shellfish fishery areas have been in place, and it just seems like there doesn’t need to be a rush to push this through,” Colden said.

The DNR proposal already has drawn questions from politicians like Comptroller Peter Franchot. During a state Board of Public Works meeting in November, Franchot questioned the state’s secretary of natural resources about the proposal, calling it “not in touch with the future.”

“We cannot limit the aquaculture leases, just because of being able to find one oyster per square meter or five oysters per square meter,” Franchot said. “I love the watermen, but let’s be honest: The future is in aquaculture.”

DNR Secretary Jeannie Haddaway-Riccio said the regulation isn’t meant to hinder the aquaculture industry, but rather to level the playing field.

“If aquaculture is truly planting, growing and harvesting oysters, then, should we provide them with oysters that have been propagated through public resources?” Haddaway-Riccio said. “It’s a little bit of a philosophical question that needs to be answered.”

The regulation would give the department a set of formal standards for deciding on aquaculture lease applications, Haddaway-Riccio said.

“The department is making decisions about these lease areas with no criteria in place whatsoever,” she said.

It’s been a long-standing issue, and one that legislators have tried to address before. State Sen. Adelaide Eckhardt, a Republican who represents a handful of Eastern Shore counties — Caroline, Dorchester, Talbot and Wicomico — was among those who proposed a bill that would have set the standard for fishery areas at one oyster per square meter in 2018. The bill faltered in committee.

“There’s a bias that the watermen only pillage and plunder,” Eckhardt said. “So what chance do the watermen have except to bombard Annapolis?”

Eckhardt said watermen are simply seeking to rectify what they view as an injustice: that oyster farmers are getting access to areas with reasonably high amounts of productive oysters.

“When areas are declassified or taken away from the wild fisheries, and given to aquaculture, there are oysters on that. They get that,” Eckhardt said. “That wasn’t part of the original agreement.”