In the 1800s, the Potomac River had so many ripe and flavorful oysters on its bottom that Maryland and Virginia watermen resorted to shooting at each other in their competition to get at them.
But today's Oyster Wars are a bureaucratic skirmish. The Potomac has virtually no oysters, and the commission that manages the river can't get permission to jump-start an aquaculture program that would put the bivalves back in the Nation's River, as the Potomac is sometimes called.
The fight, which has mostly played out in memos, conference rooms and hallways in Annapolis, has been going on for several years. But it intensified in 2009 when the Maryland legislature passed a law that liberalized oyster leasing in all Maryland counties. About a dozen aquaculture businesses have set up shop from St. Mary's County to the southern Eastern Shore, and dozens more are in the process of getting their operating permits. But no one can lease bottom in the Potomac itself.
Maryland owns the Potomac River and has since Colonial times. But since 1962, a bi-state organization, the Potomac River Fisheries Commission, has regulated fishing activity on the waterway. The commission, based in Colonial Beach, VA, has four members from each state. It manages the finfish, crab, bait and oyster fisheries; gives out licenses; and collects fees. Maryland and Virginia authorities patrol the river and enforce the law.
Under the commission's charter, there are three things it can't administer without legislative approval from both states: dredging for clams and oysters, patent tonging for oysters and leasing bottom. In the 1960s and 1970s, the commission asked for and received permission to regulate dredging on the river. It has never sought to regulate patent tonging.
Potomac River Fisheries Commission Executive Director A.C. Carpenter said the commission began considering an aquaculture program in the early 2000s, when it became clear that farming oysters would be a major component of the Environmental Impact Statement that was evaluating whether to put Asian oysters in the Chesapeake. Virginia gave the commission authority to lease in the Potomac the first time Carpenter asked for it. Maryland legislators then put in a bill to grant permission, but the Department of Natural Resources opposed it and it died.
The commissioners tried again at a recent meeting of Maryland's Aquaculture Coordinating Council, which includes state officials and helps set policy for the industry in Maryland. But DNR officials were cool to the idea.
Now, Carpenter said, the commission is in a holding pattern.
"We would like to have the authority so we could get live animals on the bottom, and get the oyster business restarted on the Potomac," he said. "There's no leasing, and virtually no wild harvest - at the moment, I don't completely understand Maryland's position."
Maryland officials are worried that the small commission can't handle such a big undertaking. Its staff would have to survey the bottom bars, delineate where they can offer bottom for lease and what would have to be in the public fishery, and help applicants manage the paperwork. They don't oppose a leasing system in the Potomac, but they think Maryland's DNR is better equipped to run it. The DNR has a five-person aquaculture division, but can borrow staff from other departments if necessary.
"It takes a long time to get through the permit process with the Army Corps. Maryland is right now in a good position for generating the information they need, and the PRFC is not," said Gina Hunt, DNR's deputy fisheries director. "Honestly, it would be a better service to the lease applicant if the folks working with the permit were involved."
Hunt says the department is working with the commission to put a lease system in place through regulation, not legislation. And then there is the issue of states' rights. Maryland owns the river and is "very, very sensitive in a lot of quarters about our property," said Del. Anthony O'Donnell, a Southern Maryland Republican who has served on the coordinating council since its earliest days.
William Rice disagrees. He is a commercial fisherman and represents Maryland on the Potomac commission. The commission, he said, has for decades done an excellent job regulating popular fisheries such as striped bass and catfish.
"How come we've made out OK all of these years by ourselves, but oysters are something different?" he asked.
Carpenter said he is not seeing a lot of interest from entrepreneurs wanting to lease on the Potomac, but that's largely because they know it's not available. If a leasing program were in place, officials say, there would likely be a lot of interest. Maryland's DNR recently received 42 applications for leases. Most of them came from St. Mary's County, which borders the river.
At least one interested Marylander who owned property along the Potomac River was told he couldn't lease bottom there and had to find a lease somewhere else. If Maryland allowed a leasing program, residents in both states would be able to hold leases in the Potomac.
Some involved in aquaculture circles say Maryland is being unfair, especially as the state had to fight hard to overcome a cumbersome Army Corps of Engineers permitting process and get its own streamlined leasing program in place.
"There has been a push by the state to have oysters everywhere. To have the department say, you can't do it here, it's totally ridiculous," said Richard Pelz, who raises oysters in Southern Maryland near the Potomac.
Pelz said he wouldn't attempt to grow oysters in the Potomac, because he mainly does cage culture and the Potomac would handle mostly bottom leases if it got a program.
Maryland's wild oyster harvest has plummeted in recent years from millions of bushels in a season to around 120,000 in recent years. But even in that context, the Potomac's harvest has been abysmal. Over the last decade, there have been some years where the catch was zero. Two decades ago, it was not unusual to catch close to 100,000 bushels on the Potomac.
Diseases clobbered the populations, but an aquaculture program could work around that using disease-resistant triploid oysters raised in Virginia hatcheries and constant management of the crop.
Oyster leasing is already permitted in Potomac tributaries; two major oyster companies, Bevans Oyster Co. and Cowart Seafood Co., have planted millions of oysters in the Coan and Yeomico rivers on the Virginia side.
"I think if you had a leasing program, you'd probably find interest in the river itself," said Don Webster, a University of Maryland Extension Agent who has been pushing along Maryland's aquaculture industry for the last three decades. "If you could get a hold of those grounds, and renovate them, those were some of the finest oyster grounds in the Bay."