Before Virginia seafood growers could use sterilized foreign oysters in aquaculture this year, they had to clear piles of red tape placed in their way by government regulators.

In its permit for the project, the Army Corps of Engineers set specific requirements about how the oysters were to be placed in the water, when they must be taken out and required ongoing monitoring of their sterility.

The goal was to make sure that none of 1 million foreign oysters used in the experiment accidentally escaped to start a breeding population in the Bay.

Now that Virginia and Maryland are examining the possibility of intentionally starting a breeding population in the Bay, the Corps has taken took a new look at its oversight authority.

Its conclusion: The Corps may have no say at all.

It could regulate the aquaculture experiment because it required the placement of structures in the water—something that requires a permit under the federal Rivers and Harbors Act. And, it can regulate such things as the placement of oyster shells in the Bay as part of restoration projects because it represents a “fill” in a U.S. waterway and is regulated under the Clean Water Act.

But the intentional release animals—albeit foreign ones—may not need any approval. “We can’t issue a permit for throwing oysters into the Bay any more than we can issue a permit for throwing cows into the Bay,” said Pete Kube, who oversees the issue for the Corps Norfolk District. “It is not a fill, and it is not a structure.”

Neither Maryland nor Virginia has any immediate plans for “throwing oysters into the Bay” until further studies are completed. But the case illustrates how poorly defined is the path—and the decision-making process—that could lead to the intentional introduction of a new oyster species, even though it could have far-reaching ramifications.

During a September workshop on oyster research, Mark Luckenbach of the Virginia Institute of Marine Science said that the question is not just about putting oysters into the Bay, or even the mid-Atlantic, but rather making a first-time introduction into the entire Atlantic Ocean. “Our responsibilities go beyond the boundaries of the Chesapeake Bay,”he said.

While the foreign oyster Crassostrea ariakensis is gaining enthusiastic support with many around the Bay, not everyone outside the Chesapeake wants it. Dale Leavett, of Roger Williams University in Rhode Island, said seafood processors and growers from New England are wary of such an introduction.

“They’re scared to death that ariakensis might be introduced into the Chesapeake, and that it’s just a matter of time before it makes its way to the Northeast,” Leavett said at the workshop.

Yet the National Academy of Sciences, which spent a year reviewing the issue of C. ariakensis in the Bay, concluded that the existing regulatory framework was not adequate for dealing with interjurisdictional issues raised by the introduction of a foreign species.

“Many interested parties find it surprising that under the current framework, depending on the methods used for intentionally introducing a non-native species, including C. ariakensis, that no federal regulatory approval is required,” the NAS report stated.

Interest in stocking the foreign species in the Bay has been fueled by small-scale tests showing that C. ariakensis, also known as the Suminoe oyster, grows much faster than the native C. virginica, and appears resistant to the diseases that have ravaged the native population, which is at an all-time low in the Bay.

The decline of the native oysters, once the most valuable species in the Chesapeake, has been a major blow to the seafood industry, which has expressed a huge interest in the alternative species.

Karen Ortel, owner of W.H. Harris Seafood Inc. said five years is too long for a research program, noting that all but three of the 30 seafood processors that existed in the state only a decade ago have gone out business. “You’re losing the industry,” Ortel said at the oyster workshop. “We need to move forward.”

To move forward, Virginia and Maryland have proposed introducing into the Bay reproducing populations of the same strain of C. ariakensis that were used in experiments with sterilized oysters.

In an effort to address concerns, the two states said they would submit the proposal to a federal Environmental Impact Statement— something not technically required if there is no federal permit needed for the action—which would allow extensive public review and comment.

“We want to bring everybody to the table,” said Russell Baxter, the Chesapeake Bay coordinator for the Virginia secretary of natural resources. “We want the federal agencies, we want private industry, we want citizen organizations to weigh in on this process to understand what the alternatives are and give us the full body of information—as best as we can figure it out—to make a decision sometime in the near future. Because, honestly, the pressure to make a decision is great.”

An Environmental Impact Statement is a detailed analysis which examines the benefits and environmental risks of a proposed action, as well as potential alternatives. Proponents say introducing C. ariakensis will not only help the oyster industry, but help replace some of the habitat and water-filtering functions lost with the demise of the native species.

Others worry that so little is known about the the Suminoe oyster that no one can predict with certainty how it will behave in the Chesapeake. It could compete with native species, and may not build reefs like the native oyster which provide important habitat for many fish and other Bay dwellers.

While the Corps would be the lead federal agency responsible for overseeing the development of the EIS with the two states, other federal agencies including the EPA, U.S. Fish and Wildlife Service, and the National Oceanic and Atmospheric Administration, would be involved.

A meeting with the states, the Corps and other federal agencies about the process, and time frame, for the study was expected in early October, said Pete Jensen, deputy secretary of the Maryland Department of Natural Resources.

After that, a formal public scoping process would begin, in which the people would be able to review and comment on the proposal and potential alternatives.
Jensen said likely alternatives for study would be the enhanced use of native oysters, a variety of aquaculture techniques using sterile oysters, and using a different strain of C. ariakensis from another country.

After a draft EIS is done, it must be submitted for a 45-day public comment period, after which a final document is completed.

Normally, the federal agency making the decision on the project would issue a “record of decision” about how to proceed. But in this case, the states anticipate making that call. “In the end, it will be a state decision,” Jensen said.

“We believe that the states are given those responsibilities [regarding nonnative introductions],” Baxter agreed.“It does not appear to us that there is federal jurisdiction in this case.”

That has caused concerns among some—particularly federal agencies—that a final decision could be based on the disastrous condition of the native oyster population in the two states, with little regard for impacts outside the Bay.

“Is the decision-making throughout this process going to be pursued through the Chesapeake Bay Program’s consensus process, or is it going to be a unilateral decision?” asked Mike Fritz, living resources coordinator with the EPA’s Bay Program Office.

The EPA may seek to bolster its leverage. In September, it was exploring whether the agency had authority to regulate an introduction under different provisions of the Clean Water Act.

“EPA’s feeling on that is, we can be at the table, but we don’t really have any say if we disagree,” said Carin Bisland, associate director for ecosystem management with the EPA’s Bay Program Office. “We don’t want to lose our say at the table.”

A federal District Court earlier this year ruled that plans by the aquaculture industry in Maine to place nonnative salmon in pens in the state’s coastal waterways could constitute a “biological pollutant” and would require a discharge permit from the EPA similar to those required by industries or large animal farms. But it’s unclear whether the same issues would apply to oysters in the Bay, and state officials expressed doubt that the EPA had such power.

The National Academy of Sciences report suggested the Bay Program was “well-positioned” as a forum to address the introduction of a foreign species because it brings together representatives from all of the Bay states as well as many federal agencies. But its decisions are nonbinding, and the NAS suggested that Bay Program leaders should consider whether it should be changed to have final authority on such issues.

At the least, under a 1993 Bay Program policy on the introduction of nonnative species, any introduction would probably have to go through an additional internal review before it took place. Again, the decisions would be nonbinding.

John Wolflin, director of the U.S. Fish and Wildlife Service’s Chesapeake Bay Field Office, suggested the issue should go before the Atlantic States Marine Fisheries Commission, an organization that includes all East Coast states and federal agencies and is responsible for managing interjurisdictional fisheries, although it has no explicit authority over nonnative species introductions by a state.

“States outside the Chesapeake Bay need to be involved given that the introduction of a nonnative oyster in to the open Bay system is an irreversible action that not only affects states in the Bay region, but could also pose a threat to native oyster stocks along the Atlantic Coast where many sustainable native oyster populations and fisheries exist,” he said.

Jensen said the process for actually making an introduction would likely be fleshed out during the EIS process.

“Fundamentally, it is going to have to do with whether the benefits outweigh the risks,” he said. “That will be, ultimately, the final decisions. But within that, there will be some other criteria established as to how that decision will be made, and that will all be part of the public process.”

Baxter noted that Virginia has had a careful track record in supporting research with nonnative oyster species for a decade, and has never approved the placement of reproducing oysters in the Bay. The approach followed by the state, using sterile foreign oysters in aquaculture to gather more information, was generally endorsed by the NAS.

“Nobody doubts the difficulty of the decisions,” Baxter said. “But we think that we’ve been doing this responsibly for the past 10 years, and we think we will continue to act responsibly.”

One issue that has raised concern is the time restriction for the EIS sought by the states. The law does not set a particular timetable for the EIS process, although agencies are allowed to set limits. The states have asked that the process be completed in a year, but many officials acknowledge it will likely take closer to two years.

To accelerate the process, Maryland has already launched a “pre-scoping” process to identify issues that need study and to develop its proposal and possible alternatives that would be the subject of an EIS review. It has also begun funding some research on the issue.

The NAS report set forth research issues that need to be addressed before a decision was made about the introduction of reproducing oysters, much of which was focused on gaining a better understanding of the biology of C. ariakensis and how it may behave, and interact with other species, in the Bay. It also expressed concern about the potential for accidentally introducing new diseases or other organisms along with the oysters.

The report didn’t say how long it would take to resolve those issues, but some scientists involved in the review estimated a five-year timeframe.

Some officials worry that with an emphasis on speed, some critical research won’t get done.

“We, as an agency, have tried to stay neutral, but we feel very strongly there is not adequate science to support a decision at this point,” said Lowell Bahner, director of the National Oceanic and Atmospheric Administration’s Chesapeake Bay Office, which has begun funding its own research on C. ariakensis.

“We want to make sure there is enough good technical information to make sure there is good data to make a good decision,” Bahner said. “But I don’t think we can knock that out in two years.”

Many federal agencies are pressing for an independent scientific review committee to advise the EIS process. In a step in that direction, the Bay Program’s Scientific and Technical Advisory Committee agreed in September to form a panel that would recommend research priorities regarding C. ariakensis.

Kube, of the Corps, said an accelerated EIS could be done. But he said it might reach the same conclusions of the NAS review. The yearlong NAS report recommended continued research using sterile oysters in aquaculture, saying the oyster was too poorly studied to predict what would happen if reproductive C. ariakensis were placed in the wild.

“The NAS study said to go slow and go the aquaculture route and that will give us a lot of the answers we need while moving ahead,” Kube said. “An EIS, at least a short one, would probably say the same kind of thing—that aquaculture is the way to go until we get a lot more of this information.”

Jensen said that more information about they oyster is available than commonly acknowledged, and that much more can be learned about the species within a year or two.

“We believe that there is a lot more known than was in the literature cited the NAS report,” Jensen said. “People have been working on this species for a number of years. Not all of that work has been published.”

He emphasized that the state’s proposal calls for using a strain that has been present in West Coast hatcheries for decades, as well as in research facilities around the Chesapeake for years. Because it has been around so long, the risks of accidentally introducing unwanted organisms attached to the oysters—a major concern and research issue—would be minimal, Jensen said. Further, states are proposing to follow international protocols that would further minimize the potential for introducing any unwanted “hitchhiking” species.

Jensen said the DNR also planned to meet with university scientists to determine what research is needed to support the development of the EIS. “They are fairly comfortable that they can address the issues quickly, if we get them funded,” he said.

He added that no amount of research will resolve all uncertainties about the species. “There is a bit of urgency to this in terms of helping to restore the Bay,” he added.

And, delay carries its own risks. One of the greatest fears raised in the National Academy of Sciences report was that of a “rogue introduction,” in which an individual intentionally brought foreign oysters into the Bay and released them.

Unlike a formal state-sponsored introduction, which would follow strict guidelines to keep hitchhiking parasites and other organisms out of the Bay with the nonnative oyster, a rogue introduction would have no such safeguards.

It’s thought that the oyster disease MSX was introduced into the Bay during a failed attempt to introduce another oyster species, C. gigas, in the 1950s. The NAS report said it would be easy for someone to smuggle C. ariakensis to the Bay and release them which, unlike a state-sponsored effort, would be illegal under Maryland and Virginia laws.

“I would hazard to say that has already occurred; not by me,” said Ortel, the Maryland seafood processor. “It’s not because they want to do anything wrong. It’s because they are desperate.”