Eastern oysters in Chesapeake Bay were not as happy as clams, and neither was Wolf-Dieter Busch.
The environmental consultant from Maryland knew that overharvesting, habitat loss, poor water quality, and diseases had devastated a once-abundant wild oyster population. He was “distressed by the slow and disorganized efforts to restore the Chesapeake Bay’s ecosystem,” he said.
“Then the Maryland and Virginia governments indicated that oysters in the Chesapeake Bay were now commercially extinct,” Busch said, and they proposed what he called a “quick fix”—introducing disease-resistant, harvestable Asian oysters. Busch feared that the exotic species would compete with any remaining Eastern oysters for food and space, and maybe even cross-fertilize with them—spelling doom for the wild native species.
In January 2005, Busch filed a petition to the National Marine Fisheries Service (NMFS) to place the Eastern oyster (Crassostrea virginica) on the federally protected threatened and endangered species list. To the surprise of many, the uncommon, one-person petition cleared one regulatory hurdle in May. To the surprise of Busch, the petition stirred storms of protest from both environmentalists and critics of the Endangered Species Act (ESA).
'A big hammer'
"The petition was Chesapeake-centric," said William Walton, shellfish and aquaculture researcher with the Woods Hole Sea Grant and Cape Cod Cooperative Extension programs on Cape Cod, Mass. He noted that placing the oyster on the endangered species list would outlaw commercial and recreational Eastern oyster gathering nationwide, even where they are abundant. It would also prohibit oyster aquaculture and possibly inhibit wild oyster restoration efforts by restricting the search for disease-resistant wild oyster strains to re-seed previous oyster habitats.
The controversy partly stemmed from the way the Endangered Species Act is written. Under the act, invertebrates—unlike vertebrates—can’t be considered endangered in a portion of their range; they must be listed everywhere or nowhere. Also, a petitioner cannot ask that a species be listed as “threatened,” rather than “endangered”; NMFS must make that distinction. A “threatened” designation—what Busch says he sought—would allow flexibility in managing the oyster population, including exempting aquaculture and restrictions in particular regions.
Shellfish farmers from New England to the Gulf of Mexico testified vehemently against the petition before the U.S. House Committee on Resources in July. At the same time, the committee chairman, Richard W. Pombo (R.-Calif.), author of a recently passed House bill that rolls back habitat protection provisions in the ESA, called the petition "a big hammer" and used it as evidence of problems with the act. Environmental groups, according to Busch, said the oyster petition controversy was adding ammunition to attacks on the ESA.
A new twist
“Any individual has the right to (file a petition), but it’s not an everyday occurrence,” said Teri Frady, a Fisheries spokesperson in Woods Hole, Mass. “The agency responds to all petitions,” though many never get past the initial 90-day review. Busch’s petition did, and NMFS assembled a team of state and federal fisheries experts to conduct a “full status review” of the species, using “the best available scientific and commercial information” on historic and current populations, conditions and protection efforts, habitat destruction, harvesting levels, disease, predation, and possible subspecies.
The team’s report was due before January 2006. But on Oct. 13, Busch withdrew his petition. Busch said he was "blindsided" by the barrage of negative reactions to his petition by people who did not fully understand the act or the petition process and concluded that his petition would lead to "endangered" status and the most severe restrictions for the eastern oyster.
Marta Nammack, National ESA Listing Coordinator at NMFS, said she could not remember any previous time when an ESA petition was withdrawn. Nevertheless, NMFS has decided that the already established review team will proceed with its study of the eastern oyster, including in Chesapeake Bay.
Which is precisely what Busch wanted in the first place.