Maryland oyster farmers could start selling smaller oysters next year if the state's Aquaculture Coordinating Council has its way.

The council, a group that includes regulators, oyster farmers, legislators and scientists, voted at its November meeting to reduce the size at which a farm-raised oyster can be sold to a minimum of 2 inches. Currently, the market size for Maryland oysters is 3 inches.

The Maryland Department of Natural Resources still has to introduce a regulation to make the change official. First, a delegate or a senator will need to introduce legislation to enable the department to make those regulations. The council expects that legislation will be introduced in the coming General Assembly, but it's unclear what the final change will look like. The Maryland Natural Resources Police oppose the change, on the grounds that enforcing the law and protecting bars from poachers will be difficult with two size classes.

Several members of the council, which is trying to promote aquaculture in Maryland after nearly two centuries of relying on a public fishery, say it's a simple matter of expanding markets for a product to help a fledgling industry. Regulators created the 3-inch rule in the 19th century so the oysters would have two chances to spawn. But that rationale is irrelevant when the farmers are working with triploid oysters, which are sterile and therefore never spawn. Also, the farmer buys the seed, raises the oyster and ultimately owns the product. If the government can't tell a vegetable farmer how large he could grow and sell a tomato, then why should it be different for an oyster?

"The reasons are simple - the product is the property of the person raising it," said council chairman Don Webster. "There is a market for the smaller oysters."

Seafood markets already sell smaller oysters from Canada and other places, several council members noted. Many oyster farmers in Maryland are growing culchless oysters (those grown on a tiny piece of shell instead of a whole one) in floats or cages, so the oysters are much rounder and smoother than wild-caught animals that spend their entire life on the Bay's bottom. Even those farmers who are growing oysters on the bottom using spat-on-shell techniques are harvesting a different-looking oyster than the wild-caught variety, according to farmers familiar with both. Because farmers need a permit to sell oysters, the product can be traced from the market back to the farm.

Virginia has a 3-inch rule for wild oysters but it has no size limit on farm-raised oysters grown in state waters. It also has no limits on when those oysters can be sold. The Virginia Marine Resources Commission has encountered no enforcement issues, said its spokesman, John M.R. Bull. Farm-raised oysters and wild-caught oysters look different and are caught in different places, Bull said. A strict permit system makes it easy for officers to check where a catch originated.

But Maryland law-enforcement officials remain worried. A crafty rogue oysterman could steal product from a leased bottom, making them look legal. On the flip side, a rookie police officer may not be able to tell that a legitimate aquaculturist's oysters are indeed farm-raised.

Natural resources police officials suggested that aqua-farmers consider harvesting oysters only between sunrise and sunset, and only during oyster season. But several council members didn't like that idea, either, because it would be hard to create a stable market.

Karl Roscher, Maryland's aquaculture coordinator, said he understood the need to create new markets, but warned the department couldn't move forward on an issue that made its police officers uncomfortable.

"They're still not at the point where they feel they can protect the wild populations," Roscher said. "We're trying to deter theft on leases and public bars, and there's just not enough officers out there."

Since Maryland eliminated its aquaculture prohibitions two years ago, several entrepreneurs and watermen have waded into the business of growing oysters. Nearly a dozen businesses are operating, and many more are on the way.

Del. Anthony J. O'Donnell, a Southern Maryland Republican who has been championing aquaculture for the last five years, said he understands the officers' concerns. But, he added, the regulators need to change their mindset about oysters. The farm-raised ones are a growing business with a bright future, whereas the wild catch is at 1 percent of its historic levels. The two products are different, he said, and they need to be managed accordingly.

"It's the difference between wild turkey and farm-raised," O'Donnell said. "It makes no sense to regulate the sale of a Butterball turkey only during the sunrise hours in the spring."

Record spring flows blamed for die-off of oysters in Upper Bay

Karl Blankenship

This spring's record runoff from the Susquehanna took a deadly toll on oysters in the Upper Chesapeake, where low salinities were blamed for killing nearly 80 percent of the oysters on the four northernmost bars.

Maryland Department of Natural Resources biologists conducting their annual Fall Oyster Survey collected samples from 15 oyster bars north of the Bay Bridge. In the four northernmost bars along the Eastern Shore, oysters suffered a cumulative mortality of 79 percent, with no live oysters on the two northernmost bars. The few live oysters that were found in Upper Bay bars were in poor condition, DNR reported.

Higher than normal mortality rates were also found along the Western Shore, north of the Bay Bridge. The combined mortality rate for the six bars in the mainstem of the Bay between the Magothy River and Man O War Shoal at the mouth of the Patapsco River was 74 percent, a sevenfold increase over the 2010 rate of 11 percent, according to the DNR.

Biologists were disappointed, as the area had an unusually high spat set last year - something uncommon in low-salinity areas - which they hoped had set the stage for a possible surge in oyster numbers in that area. "This is a setback for the Upper Bay," said Mike Naylor, DNR shellfish program director. "This hits a fragile area of the Bay particularly hard. There were very few mature oysters in this area of the Bay to begin with, but it's very disheartening to see that the remarkable, encouraging 2010 spat set has been lost."

On a positive note, biologists said preliminary data from the rest of the Bay indicated low mortality from Sandy Point to points south, and oysters in these areas seemed in prime condition.

They said the Upper Bay die-off appeared to have been triggered by record low salinities in spring and early summer caused by unusually high freshwater flows down the Susquehanna River, which from March through May were the highest ever seen for that three-month period. Also, barnacles and other fouling organisms found in the oysters suggest they had died before the floods caused by Hurricane Irene and Tropical Storm Lee in late summer.

"These types of oyster kills commonly occur when oysters grow near a major source of freshwater," added Naylor, noting several similar die-offs occurred in the past century.