[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
 POTENTIAL LISTING OF THE EASTERN OYSTER UNDER THE ENDANGERED SPECIES 
                                  ACT

=======================================================================

                           OVERSIGHT HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                         Tuesday, July 19, 2005

                               __________

                           Serial No. 109-24

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr.,                 Neil Abercrombie, Hawaii
    Tennesse Solomon P. Ortiz, Texas
    e                                Frank Pallone, Jr., New Jersey
Wayne T. Gilchrest, Maryland         Donna M. Christensen, Virgin 
Ken Calvert, California                  Islands
Barbara Cubin, Wyoming               Ron Kind, Wisconsin
  Vice Chair                         Grace F. Napolitano, California
George P. Radanovich, California     Tom Udall, New Mexico
Walter B. Jones, Jr., North          Raul M. Grijalva, Arizona
    Carolina                         Madeleine Z. Bordallo, Guam
Chris Cannon, Utah                   Jim Costa, California
John E. Peterson, Pennsylvania       Charlie Melancon, Louisiana
Jim Gibbons, Nevada                  Dan Boren, Oklahoma
Greg Walden, Oregon                  George Miller, California
Thomas G. Tancredo, Colorado         Edward J. Markey, Massachusetts
J.D. Hayworth, Arizona               Peter A. DeFazio, Oregon
Jeff Flake, Arizona                  Jay Inslee, Washington
Rick Renzi, Arizona                  Mark Udall, Colorado
Stevan Pearce, New Mexico            Dennis Cardoza, California
Henry Brown, Jr., South Carolina     Stephanie Herseth, South Dakota
Thelma Drake, Virginia
Luis G. Fortuno, Puerto Rico
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel


                                 ------                                

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Tuesday, July 19, 2005...........................     1

Statement of Members:
    Gilchrest, Hon. Wayne T., a Representative in Congress from 
      the State of Maryland......................................     3
    Inslee, Hon. Jay, a Representative in Congress from the State 
      of Washington..............................................     3
    Melancon, Hon. Charlie, a Representative in Congress from the 
      State of Louisiana.........................................     4
    Pallone, Hon. Frank, Jr., a Representative in Congress from 
      the State of New Jersey, Statement and article submitted 
      for the record.............................................    11
    Pombo, Hon. Richard W., a Representative in Congress from the 
      State of California........................................     1

Statement of Witnesses:
    Bean, Michael J., Attorney, Environmental Defense............    38
        Prepared statement of....................................    39
    Cowart, S. Lake, Jr., Vice President, Cowart Seafood 
      Corporation................................................    20
        Prepared statement of....................................    21
    Gaffney, Patrick, Professor, University of Delaware, College 
      of Marine Studies..........................................    60
        Prepared statement of....................................    62
    Gergela, Joseph M., III, Executive Director, Long Island Farm 
      Bureau.....................................................    31
        Prepared statement of....................................    34
    Hare, Dr. Matthew P., Assistant Professor, Department of 
      Biology, University of Maryland............................    66
        Prepared statement of....................................    68
    Judy, Christopher, Shellfish Program Director, Maryland 
      Department of Natural Resources............................    95
        Prepared statement of....................................    97
    Kraeuter, Dr. John N., Associate Director, Haskin Shellfish 
      Research Laboratory, Institute of Marine and Coastal 
      Sciences, Rutgers University...............................    50
        Prepared statement of....................................    52
    Perret, William S., Marine Fisheries Director, Mississippi 
      Department of Marine Resources.............................    86
        Prepared statement of....................................    88
    Ray, Dr. Sammy M., Professor Emeritus, Marine Biology 
      Department, Texas A&M University...........................    58
        Prepared statement of....................................    59
    Rheault, Dr. Robert B., President, East Coast Shellfish 
      Growers Association........................................    23
        Prepared statement of....................................    25
    Voisin, Michael C., Chairman, Louisiana Oyster Task Force....    28
        Prepared statement of....................................    30
    Wesson, Dr. James A., The Virginia Marine Resources 
      Commission, Division of Fisheries Management, Department of 
      Conservation and Replenishment.............................    80
        Prepared statement of....................................    82

Additional materials supplied:
    Aldred, John, Director, Town of East Hampton, New York, 
      Letter submitted for the record............................     5
    Bishop, Hon. Timothy H., a Representative in Congress from 
      the State of New York, Statement submitted for the record..    19
    Boyd, Hon. Allen, a Representative in Congress from the State 
      of Florida, Statement submitted for the record.............     6
    Davis, Hon. JoAnn, a Representative in Congress from the 
      State of Virginia, Statement submitted for the record......     6
    Maslyn, Mark, Executive Director, Public Policy, American 
      Farm Bureau Federation, Letter submitted for the record....     7
    Sheehan, Denise M., Acting Commissioner, New York State 
      Department of Environmental Conservation, Statement 
      submitted for the record...................................    13
    Sieling, Bill, Executive Director, Chesapeake Bay Seafood 
      Industries Association, Letter submitted for the record....    15
    White, Jack, New Point Oyster Company, LLC, Letter and 
      comments submitted for the record..........................    17


 OVERSIGHT HEARING ON ``POTENTIAL LISTING OF THE EASTERN OYSTER UNDER 
                      THE ENDANGERED SPECIES ACT''

                              ----------                              


                         Tuesday, July 19, 2005

                     U.S. House of Representatives

                         Committee on Resources

                            Washington, D.C.

                              ----------                              

    The Committee met, pursuant to notice, at 2:10 p.m., in 
Room 1324, Longworth House Office Building, Hon. Richard W. 
Pombo [Chairman of the Committee] presiding.
    Present: Representatives Pombo, Gilchrest, Drake, Jindal, 
Inslee, Costa, and Melancon.

    STATEMENT OF HON. RICHARD W. POMBO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    The Chairman. The Committee will come to order.
    Today, we have a number of highly qualified individuals 
that will give us testimony regarding a petition to list the 
eastern oyster as threatened or endangered under the Endangered 
Species Act. While I believe the petitioner has outlined a 
number of problems previously documented specific to the 
Chesapeake Bay, he has not given the National Marine Fisheries 
Service reason to list the eastern oyster.
    Simply, we have before us a case where the petitioner has 
submitted incomplete work as admitted to by NMFS. However, when 
grading the submission, his former colleagues have been all too 
willing to establish a curve that unfairly benefits him, and 
they do this primarily by filling in the blanks he failed to 
fill in.
    In fact, I believe this petition is a case we see all too 
often in other places of the country. The parties grow 
frustrated with efforts intended to accomplish a certain goal 
which have stalled----in this case, clean-up efforts in the 
Chesapeake Bay----and go ``statute shopping,'' looking for a 
new way to force action. In doing this, individuals look for a 
Federal statute with a big hammer that they can use to stop 
activities affecting their specific issue. In this case, the 
issue is water quality in the Chesapeake Bay, and the hammer is 
the Endangered Species Act as a means to stop the introduction 
of the Asian oyster.
    This committee, through Congressman Wayne Gilchrest's 
Fisheries and Oceans Subcommittee, has held a number of 
hearings in the past 5 years on both the status of the native 
oysters and the health of the Chesapeake Bay. While I don't 
want to put words in Chairman Gilchrest's mouth--which he 
probably appreciates--I expect he will agree with the 
petitioner that there are water quality problems in the 
Chesapeake Bay, and some of those are very serious problems.
    But attempts to list the eastern oyster under the 
Endangered Species Act as a means to use a big Federal hammer 
to clean up the bay is not appropriate. If the current 
restoration activities to clean up the bay are not working, let 
us look at that rather than waste the Federal Government's time 
and unnecessarily scare legitimate businessmen by convening a 
status review committee and studying a nuisance petition to 
list the eastern oyster.
    It is clear that the petitioner does not provide 
information on the status of the eastern oyster throughout its 
range, something that NMFS pointed out in the March Federal 
Register notice. This should have been enough to find the 
petition not warranted. However, NMFS decided that they knew 
what the petitioner really meant and took it upon themselves to 
decide that the petitioner wanted to declare a separate sub-
species for the Atlantic coast.
    I am surprised that any agency would allow scarce taxpayer 
dollars to be spent to pursue a half-baked analysis such as 
this one before us today. In addition, the basis for the 
petitioner's claim of low population levels is harvest data. 
This is clearly not an indication of the status of the oyster, 
but rather an indication of the management practices in the 
various States. Low harvest levels could indicate smaller 
population levels, but they could equally indicate a number of 
other factors that have nothing to do with population levels. 
NMFS should know this.
    In fact, that the agency is even looking into this any 
further has caused a large amount of concern for those areas of 
the country that have healthy eastern oyster populations or 
that ship their eastern oysters into this part of the country. 
A listing under the ESA, even for a sub-species of the eastern 
oyster, could have devastating results for this industry.
    In any case, the ESA requires that the agency must find 
that an invertebrate species to be in danger of extinction 
throughout its range in order to list under the Endangered 
Species Act, and I do not believe they can do that. The fact 
that the petitioner is attempting to manipulate the ESA to get 
at problems or to stop activities in the State waters of the 
Chesapeake Bay is yet another reason why I believe the ESA 
needs to be updated and improved.
    Would the listing of the oyster do anything to recover it 
in any way? Given the Fish and Wildlife Service data on the 
species recovery, I am very doubtful. According to the service 
data, less than 1 percent of listed species have recovered. 
Only 6 percent are improving. Three percent are believed to be 
extinct. Twenty-one percent are declining, and 40 percent are 
just simply categorized as unknown. Seventy-seven percent of 
all listed species have achieved 0-25 percent of their recovery 
objectives.
    The National Marine Fisheries Service will now spend a huge 
amount of time and effort to review a claim that should not 
have met the standard for further action. This action alone 
caused a ripple effect in the oyster industry from Maine to the 
Gulf of Mexico at a time when funding for endangered species is 
scarce and critics argue that species that are legitimately 
endangered are getting no closer to recovery.
    Maybe it is time for NMFS to get out of the ESA business 
and refocus its staff agenda on managing other protected 
resources. Obviously, as evidenced by the reaction to this 
petition, they are not acting in the best interest of the 
species, but rather creating work as a means of self 
preservation.
    The Chairman. I would like to recognize Mr. Inslee for any 
opening statement he may have.

STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF WASHINGTON

    Mr. Inslee. Thank you. Just a couple of points.
    First, I want to express my appreciation of the shellfish 
industry as a whole and its environmental stewardship. I come 
from the Puget Sound area, and in my neck of the woods, the 
shellfish industry has been a tremendous advocate for measures 
to keep our waters pure, for economic reasons, for their own 
self interest. But it is inured to the great benefit of our 
whole community of being real standard bearers for 
environmental protection.
    I know very little about this particular issue. I just want 
to make one comment, and that is that I hope that, ultimately, 
our committee figures out a way to enhance our ability to 
prevent species from ending up in the degraded status they are. 
In which case, they end up having to be listed, and that we 
perhaps spend less time arguing about the specifics of 
particular listings and more about how we prevent the sixth or 
seventh great period of mass extinction on Earth, which right 
now we may be in. And to date, our committee has been wholly 
ineffective in really devising a way to be effective in that 
regard.
    Thank you.
    The Chairman. Mr. Gilchrest?

   STATEMENT OF HON. WAYNE T. GILCHREST, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MARYLAND

    Mr. Gilchrest. Thank you, Mr. Chairman.
    And I want to thank the Chairman for holding this hearing, 
but I will probably not put words in Mr. Pombo's mouth as well.
    I understand the enormous controversy about listing 
virginica, or this particular species of oyster, and the ripple 
effect that that has on the eastern half of the country, from 
the Atlantic to the Gulf of Mexico. But I think I can assure 
those who are listening that this committee will look at this 
issue with objectivity.
    And I was interviewed on a radio talk show over the weekend 
and asked if the native oyster--we call it the native oyster. I 
guess you call it the native oyster in the Gulf of Mexico, if 
anybody is here from the Gulf of Mexico--should be listed. And 
some might say that it is heresy. I said I didn't think so. I 
didn't think it should be listed.
    But getting past the fact of whether or not this should be 
listed, and I don't think it will be listed, there is enormous 
problems with water quality. There is enormous problems with 
disease. There has been over the last century problems with 
overharvesting, and we are beginning to get over that now.
    But how do we clear up the 35 percent dead zone in the 
Chesapeake Bay of a year ago? How do we clear up the dead zone 
in the Gulf of Mexico, where nothing lives there along that 
shoreline about the size of Massachusetts in a seasonal way?
    So in the process of reviewing the information that we will 
get from everyone in this hearing today, I think we really need 
to take an integrated approach to clearing up the severe 
problems that have caused the degradation of this oyster to 
begin with. And today's focus, at least from my perspective, 
will be the Chesapeake Bay because of the problems of disease.
    And I would like to talk to the scientists when they get up 
here about the differences between an oyster reef and an oyster 
bar. How many sanctuaries do we have? Is there enough money for 
research to develop a virginica oyster that has resistance to 
these diseases? Because I think that is the future of the 
Chesapeake Bay.
    So we are not here to cause consternation. We are not here 
to be divisive with anyone, certainly not up here on the dais 
between Republicans and Democrats, between the processors, the 
harvesters, the restaurant owners, any of that. Let us all put 
our minds to the single most important fact--how do we restore 
the ecological integrity of America's estuaries and oceans, and 
how do we help ensure the economic equitable distribution of 
those resources? I think we could start doing that.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Mr. Melancon? Am I close on the pronunciation?
    Mr. Melancon. You are getting there.
    The Chairman. Getting better.

    STATEMENT OF HON. CHARLIE MELANCON, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF LOUISIANA

    Mr. Melancon. We will have a short course. I appreciate the 
opportunity just to make a short comment.
    As a Member of Congress in coastal Louisiana, and I don't 
know this to be a fact, I probably have the most oyster, the 
largest oyster beds and growth of oysters in this country. It 
is a very important industry, and it has been one that the 
people in south Louisiana have nurtured.
    And just like farmers on the land, in the sea, they have 
done an excellent job. And I think there is room for everybody. 
I think it is just a matter of maybe, as our farmers have, 
learning best management practices and learning to farm oysters 
rather than to try and collect wild oysters and hope that they 
will repropagate.
    But I am here to listen, and I am open to suggestions. But 
it scares me to death if we are going to start putting oysters 
on the endangered species list.
    The Chairman. Thank you.
    I ask unanimous consent that the following statements be 
included in the record at the appropriate point: a statement by 
The Honorable JoAnn Davis, Virginia's 1st District; the 
testimony of Denise M. Sheehan, the Acting Commissioner for the 
New York State Department of Environmental Conservation; a 
statement by the American Farm Bureau Federation; a statement 
from the Town of East Hampton, New York, Shellfish Hatchery; 
and a statement from the New Point Oyster Company, New Point, 
Virginia.
    Hearing no objection, so ordered.
    [The information submitted for the record follows:]
    [A letter submitted for the record by John Aldred, 
Director, Town of East Hampton, New York, follows:]

[GRAPHIC] [TIFF OMITTED] T2446.027

    [A statement submitted for the record by The Honorable 
Allen Boyd, a Representative in Congress from the State of 
Florida, follows:]

 Statement submitted for the record by Allen Boyd, a Representative in 
                   Congress from the State of Florida

    Mr. Chairman, I want to thank you for the opportunity to submit 
this statement for the record today. I appreciate your leadership in 
holding this hearing today on the subject of adding the Eastern Oyster 
to the Endangered Species list. I believe that it is important to hold 
this hearing, in order for all to know that the Eastern Oyster is not 
endangered, and if it was to be added to the Endangered Species list, 
it would be devastating not only to my district in Florida, but to the 
entire economy in our great nation.
    The Eastern Oyster is an invertebrate that its species habitat 
ranges from the Gulf of St. Lawrence down the Eastern Seaboard into the 
Gulf of Mexico. That encompasses eighteen states. In my district, many 
of my costal counties rely on harvesting, processing, and shipping 
oysters, not to mention the restaurants that make their business 
selling oysters. The oyster industry provides hundreds of jobs in my 
district and it adds hundreds of millions of dollars annually to the 
economy.
    Florida and the Gulf States have worked together for many years and 
have spent millions of dollars on conservation programs and artificial 
reef construction to keep the oyster population stable. Also there are 
harvesting restrictions designed to protect a healthy population, such 
as closing the season in certain areas when we are faced with 
hurricane-related damages to the oyster population.
    The reason why we are here today is because oysters in the 
Chesapeake Bay are facing some biological and chemical concerns. Due to 
the deteriorating water quality from pollution and the emergence of 
diseases, oysters in the Chesapeake Bay are not growing to the same 
size as they would in other areas of the country. I believe that we 
should work to address these concerns for the Chesapeake Bay Oyster on 
the local level rather than placing the entire species on the 
endangered species list.
    The Endangered Species Act allows for vertebrates to be grouped in 
regions, meaning that a group in one area can be listed as endangered 
or threatened while another group of the same species in a different 
area can be considered stable. Invertebrates such as the oyster however 
cannot. If you list a species as endangered in one area of the country, 
it makes it endangered throughout the country.
    Each year millions of oysters from Apalachicola Bay in my district 
are harvested and sent around the country for the enjoyment of all. The 
Apalachicola Oyster produces approximately 2 million pounds of oyster 
meat annually, and it is vital to the economy in my district.
    I believe it may be time that we look at the current Endangered 
Species Act to ensure that a problem in the Chesapeake Bay does not 
affect the entire country and the economy of the oyster industry.
    Mr. Chairman, I am very concerned that if the Eastern Oyster is 
listed as an endangered species it will jeopardize a very stable 
industry in Florida. I appreciate the opportunity that you have given 
me today to submit my statement for the record.
                                 ______
                                 
    [A statement submitted for the record by The Honorable 
JoAnn Davis, a Representative in Congress from the State of 
Virginia, follows:]

  Statement submitted for the record by The Honorable JoAnn Davis, a 
         Representative in Congress from the State of Virginia

    I want to see the Chesapeake Bay and the Eastern oyster restored. 
We as a nation have a special responsibility to act as responsible 
stewards of our natural resources and environment. I am pleased to have 
secured $5 million in funding for restoration of oyster populations in 
the Chesapeake Bay, one of America's most important bodies of water and 
one of my district's greatest treasures. However, I am concerned that 
listing the eastern oyster as an endangered species would not 
accomplish the desired goals of protecting or restoring this natural 
resource.
    The Endangered Species Act (ESA) is not the appropriate vehicle to 
clean up the Bay or prohibit the introduction of Asian oysters. 
Everyone here knows that only 16 species have been recovered from over 
a thousand listed, not an impressive track record. I appreciate 
Chairman Pombo's desire to address ESA failures and I look forward to 
full House consideration of ESA legislation that effectively protects 
natural resources.
    I do not believe this petition offers significant new information 
to warrant listing the eastern oyster as endangered. This petition to 
list the native oyster as an endangered species relies heavily on 
historical data and unknown consequences behind the introduction of an 
exotic species. Relying extensively on imprecise harvest data, the 
petitioner draws overly pessimistic conclusions. Additionally, the 
report fails to acknowledge significant action taken by state, local 
and federal government to clean up the Bay and protect the native 
oyster populations. Decisions to list species must be made with careful 
deliberation and sound science.
    Federal regulations should not impair commercial or private efforts 
which have a significant positive impact on native oyster populations 
and the health of the Chesapeake Bay. Right now, in my district 
commercial waterman, private companies and individuals are cultivating 
millions of oysters each year. Oyster aquaculture businesses add 
oysters that clean and filter bay waters, an important component to 
improving water quality.
    I encourage the Committee and the National Marine Fisheries Service 
(NMFS) to explore conservation and management options that capture the 
entrepreneurial character of America. Bureaucratic, top-down regulation 
is not always the best resource management approach. The watermen, 
oystermen and fishermen of Eastern Virginia have a long tradition and 
heritage tied to the water. They also have a critical stake in the 
future health of the Bay. Let's empower individuals and create 
incentives for productive resource management instead of regulating, 
legislating and adjudicating impractical and ineffective solutions.
    The Chesapeake Bay and the native oyster are important to my 
constituents, and I am committed to restoring both. However, listing 
the native oyster as an endangered species is not the appropriate step.
                                 ______
                                 
    [A letter submitted for the record by Mark Maslyn, 
Executive Director, Public Policy, American Farm Bureau 
Federation, follows:]

                             July 18, 2005

Assistant Regional Administrator for Protected Resources
NMFS Northeast Regional Office
One Blackburn Drive
Gloucester, MA 01930

RE:   Comments on 90 Day Finding for the Eastern Oyster--(Docket Number 
050509124-5124-01)

To Whom It May Concern:

    The American Farm Bureau Federation (AFBF) represents the interests 
of farmers and ranchers across the United States. Our membership 
includes oyster producers and harvesters in all of the states where the 
eastern oyster is produced. We are pleased to offer our comments on the 
status review for the eastern oyster to determine whether the species 
should be listed pursuant to the Endangered Species Act (ESA).
    We have thoroughly reviewed the petition to list. Based on the 
evidence contained in the petition and the available information on the 
species, we do not believe there is sufficient evidence to warrant 
listing the species.
    In fact, we do not think the petition itself presented enough 
evidence to even warrant a positive 90-day finding. The acknowledged 
range of the eastern oyster is the entire Atlantic coast and the Gulf 
of Mexico. The petition, however, focuses only on the status of the 
oyster in the Chesapeake Bay area of Maryland and Virginia. The 
petition presents little or no information about the status of the 
species outside the Chesapeake Bay area. It presents no information 
about the status of the species in the Gulf region, where most of the 
eastern oyster production now occurs.
    This lack of information is important, because the protections of 
ESA are not available for only the Chesapeake Bay population of the 
species. Because the eastern oyster is an invertebrate species, the 
service cannot designate a ``distinct population'' of eastern oyster as 
endangered or threatened. Thus, as the notice of the 90-day finding 
correctly points out, NOAA Fisheries must consider the status of the 
eastern oyster throughout its entire range. If the Chesapeake Bay area 
is considered to be a ``significant portion of range'' of the eastern 
oyster, then consideration of the entire species might warrant further 
consideration. The only other available option is to consider whether 
the Chesapeake Bay population of eastern oyster is a separate 
subspecies of the eastern oyster and could be listed separately.
    The petition to list, however, contains no evidence to support 
either of these two options. In fact, the petition fails even to allege 
either the possible existence of a separate subspecies or that the 
Chesapeake Bay constitutes a ``significant portion of the range'' of 
the species. The petition seems to be more concerned about the possible 
introduction of the Asian oyster into the Bay than anything else.
    ESA requires that determinations be made on the basis of the ``best 
scientific and commercial data available.'' We fail to see how NOAA 
Fisheries can make a finding that further review is warranted on 
grounds that were not even mentioned in the petition to list. The 
information contained in the petition to list clearly does not match 
the information to be considered for further review. In fact, the 
petition sets forth little or no information useful to the agency for 
its review. The agency should exercise reasonable judgment in reviewing 
the petition instead of accepting the unsupported allegations of the 
petitioner at full value.
    Instead of reviewing the petition on its merits, the agency in its 
90-day finding presumes to guess at the petitioner's intent. The 
finding states that ``he apparently seeks one of two alternatives,'' 
neither of which is even mentioned in the petition. The agency should 
have denied the petition for failure to contain sufficient information 
rather than acting on a presumption that is open to question.
    Even upon further review of the status of the eastern oyster, there 
is no evidence to indicate that the species should be listed.
1.  There is No Evidence to Support a Finding That the Eastern Oyster 
        Is Either Endangered or Threatened.
    An ``endangered species'' for purposes of ESA is one ``that is in 
danger of extinction throughout all or a significant portion of its 
range.'' (16 U.S.C. 1533(6)). A ``threatened'' species is defined as 
one ``likely to become an endangered species within the foreseeable 
future in all or a significant portion of its range.'' (16 U.S.C. 
1533(20)). Any agency determination must find that the species is in 
danger of extinction or endangered in order to propose a listing.
    One of the factors cited by NOAA Fisheries in making its positive 
90-day finding for the eastern oyster was information in the petition 
that the ``annual Atlantic coastal landings of eastern oyster have 
decreased to less than two percent of their recorded historic value, 
and harvest from the Chesapeake Bay has decreased to 0.2 percent of its 
recorded historic value.'' Even this statement must be taken with a 
grain of salt, since the notice also finds that resource agencies ``did 
nothing other than increase harvest restrictions.'' There is no 
correlation between the decline in harvest and how much of that decline 
might be attributable to the increase in harvest restrictions.
    In addition, the production numbers do not take into consideration 
any recreational harvest of eastern oysters. That value ``though not 
available, is considered to be substantial.'' (Attachment 1)
    Indeed, decline in historical numbers is one of the factors that 
must be considered in the overall determination whether to list a 
species. But loss or decline in numbers or habitat alone is not 
sufficient to base a decision to list. It is only one factor to be 
considered by the agency in whether a species has reached the point at 
which it is likely to become extinct or likely to become endangered in 
the near future to the extent that it might warrant listing.
    This distinction becomes especially relevant in the case of such a 
wide ranging species as the eastern oyster. The species ranges from the 
Gulf of St. Lawrence, along the Atlantic coast to the Gulf of Mexico--a 
range of thousands of miles. Neither the petition nor the finding 
indicate that the range of the oyster is any less than it was in the 
19th century, when comparisons were drawn.
    The petition makes allegations that the habitat for the oyster in 
the Chesapeake Bay is degraded and could possibly be a cause for 
species decline. The petition does not, however, make any allegations 
regarding the status of any other areas of the vast habitat for the 
oyster. In fact, information regarding the Gulf populations of the 
eastern oyster, which forms the bulk of the oyster landings in the 
United States, indicates that the Gulf populations are stable.
    There is also evidence that numbers in the Northeast are stable. 
``In 1997, MSX caused mortalities of around 30% in some Connecticut 
beds, but production should be sustained because large supplies of live 
oysters easily exceed the quantity the markets will take.'' (Attachment 
1)
    Nor can the allegedly declining numbers of eastern oyster on their 
face justify a conclusion that the species is endangered or threatened. 
While there is evidence that landings for eastern oysters in the 
Atlantic Coast area may be declining, that is only one factor to 
consider in the agency's determination whether the species meets either 
the definition of ``endangered'' or ``threatened'' under ESA. As 
indicated before, it is not known whether and to what extent decreased 
landings might be the result of harvest restrictions rather than 
decreased populations. There is also no evidence that population 
numbers are declining in the Gulf of Mexico or any other areas. In 
fact, evidence indicates that the Gulf production is stable.
    The key factor to consider for purposes of the listing process is 
not whether the numbers might have declined in some areas, but that the 
annual catch of eastern oysters is still over 30 millions pounds per 
year. That number in and of itself is an indication that the species is 
not going extinct.
    The determination that the agency must make is whether the eastern 
oyster is in danger of becoming extinct (``endangered'') or ``likely to 
become endangered any time soon in all or a significant portion of its 
range'' (``threatened''). A species that produces 30 million pounds of 
meat per year hardly fits either of those descriptions.
    The petition confuses the seeming decline in harvest from peak 
historic levels with a ``near extinction level'' for the Chesapeake Bay 
area. However, the petition also cites the fact that the Bay still 
produces over two million pounds of oysters per year.
    We trust that the agency will not make the same mistake. It is 
difficult to think of a species that produces millions of pounds of 
meat per year as going extinct or likely to become endangered any time 
soon. Clearly, the evidence does not warrant listing of the eastern 
oyster under the ESA.
    The burden of persuasion is on the petitioner to prove that listing 
the species is warranted. We do not believe that they have met this 
burden.
2.  ``The Best Scientific Data Available'' Does Not Support the 
        Existence of a Separate Subspecies of Eastern Oyster for the 
        Chesapeake Bay.
    The agency finding presumes that the petitioner must be seeking ``a 
determination that the Atlantic coast populations constitute a separate 
subspecies'' of eastern oyster. This presumption is made despite the 
fact that there is nothing in the petition that even hints at such a 
request. On that basis alone, we believe that the petition should have 
been denied as not presenting any evidence to support this presumption.
    In making determinations whether a species should be listed, the 
Act requires that the agency use ``the best scientific and commercial 
data available.'' In this case, there is no indication anywhere in the 
material that we have reviewed that there is any subspecies of eastern 
oyster. The description of the eastern oyster contained in ``Seafood 
Watch'' Final Report, Final Report, 04/21/04 is typical: ``The eastern 
oyster, Crassostrea virginica, is an important commercial species 
ranging from the Gulf of St. Lawrence to the Gulf of Mexico, and along 
the coasts of Argentina and Brazil.'' The same publication states that 
the life history of the eastern oyster is well know since the species 
``has been studied extensively.'' For such an extensively studied and 
commercially important species as the eastern oyster, if there were any 
hint of the existence of a separate subspecies that fact would appear 
in the literature.
    The fact sheet on the eastern oyster that appears on the NOAA web 
site describes only Crassostrea virginica when referring to the eastern 
oyster. It also describes the eastern oyster as occurring ``along the 
east coast of North America from the Gulf of St. Lawrence to Florida 
and south through the Caribbean to the Yucatan Peninsula of Mexico and 
Venezuela.'' There is no discussion of any possible subspecies.
    Even the information contained in the finding regarding this issue 
is very speculative, at best. The finding states: ``There is some 
limited information in our files to indicate that it is possible to 
differentiate between eastern oysters from the Gulf and Atlantic Coasts 
using mtDNA analysis.'' (Emphasis added) This very qualified statement 
is hardly enough to justify the conclusion that there even might be a 
separate subspecies of eastern oysters.
    There being no scientific information available to support the 
conclusion that there is an Atlantic eastern oyster and a Gulf eastern 
oyster, NOAA Fisheries necessarily cannot do so. Findings and 
determinations are required to be made on the basis of the best 
scientific and commercial data ``available.'' ESA sets strict time 
limits to find and evaluate the scientific data that is available to 
justify a determination. Given those time limits, it is not the 
intention of ESA to have an agency go down a scientific path that 
heretofore does not exist.
    That might be different were there disagreement among scientists on 
the existence of a separate subspecies. We believe that it could be a 
proper role for the agency to resolve that disagreement before acting. 
We do not think it appropriate, however, for the agency to try to 
create new science where there is no indication that it is warranted.
    Nor should an absence of scientific evidence of a separate 
subspecies be misused to buttress an unjustified claim. Such a posture 
would essentially be asking for proof of a negative. All the evidence 
points to the existence of a single species, and the burden should be 
on those claiming there is a separate subspecies to prove that the 
``best science available'' supports that conclusion.
    In any event, any different conclusion that the agency might 
contrive would still have to be peer-reviewed and scientifically 
accepted before it could be the basis of a listing decision. In the 
process, it would have to overcome decades of established science.
    The ``best scientific and commercial data available'' clearly and 
unequivocally supports the notion that the eastern oyster is one 
species from the Gulf of St. Lawrence to the Yucatan Peninsula.
3.  The Chesapeake Bay Should Not be Considered a ``Significant Portion 
        of the Range'' of the Eastern Oyster.
    Should the status review conclude that there is no separate 
subspecies for the Chesapeake Bay population of the eastern oyster, the 
species could still be subject to listing upon ``a determination that 
the eastern oyster is in danger of extinction throughout a significant 
portion of its range (e.g., along the Atlantic coast or in the 
Chesapeake Bay) or likely to become so in the foreseeable future.''
    There is no evidence in the petition to support any portion of that 
finding. The petitioner does not even allege that the Chesapeake Bay 
area or the Atlantic coast area represents a ``significant portion of 
the range'' for the eastern oyster.
    The only reference petitioner makes to possible extinction is a 
statement that the Chesapeake Bay production of 0.2 percent of 
historical highs represents, in his opinion, ``a near extinction 
level.'' This unsupported conclusion contains no information regarding 
what a ``near extinction level'' might be for the eastern oyster, much 
less whether such a level has been reached.
    As indicated above, there is evidence that oyster populations in 
Long Island Sound are now stable. Commercial landings for oysters in 
South Carolina are stable (Attachment 2). In Florida, oyster production 
from the Atlantic side has shown declines, ``although there has been a 
slight upturn in recent years.'' (Florida Fish & Wildlife Conservation 
Commission, FMRI (2003). The declines since 1985 in those areas ``can 
be attributed to hurricane Elena's destruction of productive beds and 
the prolonged drought during 1987-1989.'' (Id)
    It is difficult to argue, on its face, that the Chesapeake Bay 
constitutes a significant portion of the eastern oyster's range. It 
certainly cannot be justified from a geographic perspective. The Bay 
constitutes a very small part of the thousands of miles of coastline 
along the Atlantic and around the Gulf of Mexico. Nor can it be 
justified from a commercial standpoint. According to NOAA-Fisheries own 
figures, the Middle Atlantic region only produced three percent of the 
oyster landings in 2003.
    There is no evidence that the eastern oyster is declining 
throughout the Atlantic coast region. Even if the Chesapeake Bay 
population is declining, it cannot be considered to occupy a 
``significant portion of the range'' of eastern oysters in order to 
justify a listing of the entire species under the ESA.
4.  Listing the Eastern Oyster Would be More Harmful to the Species 
        than Current Efforts to Promote and Enhance the Species.
    There is another factor to consider.
    Even if the eastern oyster met all of the criteria for listing, 
listing it under the Endangered Species Act might well have a critical 
adverse impact. That conclusion reflects the nature of the industry 
itself.
    The oyster industry is a state-regulated industry that is a 
combination of natural oysters and aquaculture. Natural oysters grow 
and reproduce without human intervention. Managed oysters are 
supervised by harvesters. Cultivated oysters are transported to man-
made oyster beds where they mature. No figures are available to 
describe how many oysters are naturally produced and how many oysters 
are farmed. Both factors are important.
    As a commercial enterprise, oyster production is important to both 
state and private interests. Both have an interest in seeing the oyster 
industry thrive because it is to the economic benefit of both. As such, 
both the state and private interests will do whatever is possible to 
ensure the viability of oyster populations wherever they occur.
    Eastern oysters are not found in federal waters and are not subject 
to federal jurisdiction. There is no federal management plan for 
eastern oysters. Oysters along the Atlantic Coast are managed by the 
states. In the Gulf of Mexico, there is the Gulf States Marine 
Fisheries Commission to oversee oyster production.
    Because the eastern oyster is important from a commercial 
standpoint, there is more of an interest and an incentive from the 
state and private interests to care for the species. Its biological 
welfare is directly tied to its commercial value.
    State and private regulation of eastern oysters will serve the 
species much better than federal ``management'' under the Endangered 
Species Act. State and private interests spend millions of dollars 
preparing and caring for oyster beds. Private aquaculture raises 
millions of pounds of oysters and provides a significant part of oyster 
beds. Harvests are regulated according to conditions.
    By contrast, listing under ESA would dry up the private production 
of oysters and lead to the eventual destruction of natural oyster beds. 
NOAA Fisheries has neither the funding nor the manpower to prepare and 
care for the oyster beds that are needed to ``recover'' the species. 
Oysters would lose their commercial value, and therefore the incentive 
for anyone to cultivate and ``recover'' them. Regular harvesting is 
necessary to maintain the beds and the populations.
    Furthermore, state and private interests can respond more quickly 
and more effectively to natural factors that might affect the status of 
the oyster. For example, State and private interests have invested 
large sums of money to develop an oyster that is resistant to MSX and 
dermo, two diseases that devastated oyster populations in the Atlantic. 
In many places, the effects of these crippling diseases have been 
stemmed, and oyster levels are either stable or approaching stability. 
Had the species been listed under ESA, these responses could not have 
occurred, and the species could very well have been wiped out.
    Thank you for the opportunity to provide comments on the status 
review.

                               Sincerely,

                              Mark Maslyn

                   Executive Director, Public Policy

    [NOTE: Attachments to Mr. Maslyn's letter have been retained in the 
Committee's official files.]
                                 ______
                                 
    [A statement and article submitted for the record by The 
Honorable Frank Pallone, Jr., a Representative in Congress from 
the State of New Jersey, follows:]

  Statement of The Honorable Frank Pallone, Jr., a Representative in 
                 Congress from the State of New Jersey

    Thank you, Mr. Chairman. Fresh oysters represent the rich taste of 
the sea as well as healthy coastal waters. New Jersey has been enjoying 
oysters and their positive impacts on our shorelines and coastal 
communities for centuries. Although not as abundant as they once were, 
New Jersey fishermen continue to harvest Eastern oysters in Delaware 
Bay, and the states of Delaware and New Jersey are committed to 
restoring Eastern oysters in Delaware Bay.
    I am glad we have this opportunity to discuss listing of the 
Eastern oyster under the Endangered Species Act. These oysters are of 
great value to the commercial fishery and thus local, coastal 
economies. They are a favorite summertime treat for many on hot summer 
days like these. But at the same time, Eastern oysters are a key member 
of the marine ecosystems that line the Atlantic and Gulf Coasts. I hope 
this hearing expands our understanding of the impacts that listing the 
Eastern oyster would have on the environment and various stakeholders.
    On a related issue in neighboring Chesapeake Bay, where native 
oysters have been hit hard by diseases, the States of Maryland and 
Virginia are considering the introduction of a non-native Asian oyster 
species. In a joint statement, New Jersey and Delaware have taken the 
position that such an introduction in the Chesapeake Bay would be 
premature and that more research is necessary.
    Last Monday, three scientists working for state and federal 
resource agencies published a letter to the journal Science entitled 
``When the World is Not Your Oyster''. I'd like to submit this letter 
for the record. In short, the authors--members of the National Academy 
of Science's panel on Non-native Oysters--express their concerns the 
potential spread of Asian oysters to the Delaware Bay and the lack of 
meaningful participation for adjacent states in process.
    While today's hearing focuses on the petition to list the Eastern 
oysters under the Endangered Species Act, I am hopeful that today's 
discussions will lead to further dialogue on how states like New Jersey 
and Delaware can better incorporate their concerns in any proposal to 
use Asian Oysters as a recovery tool for Eastern oysters in the 
Chesapeake.
    In conclusion, I want to stress that this hearing and the 
deliberations over this oyster's status should not be used as an excuse 
for dismantling the Endangered Species Act. The status of the Eastern 
oyster is a specific issue that we should discuss separately from any 
larger discussion of the Act.
    Attachment
                                 ______
                                 

                                 [GRAPHIC] [TIFF OMITTED] T2446.026
                                 
    [A statement submitted for the record by Denise M. Sheehan, 
Acting Commissioner, 
New York State Department of Environmental Conservation, 
follows:]

         Statement of Denise M. Sheehan, Acting Commissioner, 
        New York State Department of Environmental Conservation

    Thank you for inviting the New York State Department of 
Environmental Conservation (Department) to testify on the status of the 
Eastern Oyster and the petition to nominate it as an endangered 
species. I would like to share with you the position of the Department 
on the Eastern Oyster petition, and on the Endangered Species Act in 
general.
    New York State's coastline is lengthy, and includes the Atlantic 
shoreline along New York City and Long Island, along with the State's 
Great Lakes coastal region. The Atlantic region of New York's coast 
supports a diverse array of commercially and recreationally important 
fish, wildlife, and plant species in its productive tidal wetlands, 
estuaries, mudflats, and reefs. The habitat of the Eastern Oyster is 
located in this area, generally within Long Island Sound. The 
Department's Long Island Regional Director, Peter A. Scully, described 
the Long Island area in his June 27, 2005 testimony before the House 
Subcommittee on Fisheries on H.R. 307, the Long Island Sound 
Stewardship Act.
    The Long Island Sound area is heavily populated, making it a 
challenge to effectively balance the needs of the people who live and 
work there with the natural resources which make Long Island such a 
unique and vibrant place. Recognizing this concern, Governor George E. 
Pataki has directed the Department to make the reduction of pollution 
and the restoration of aquatic habitats along the Sound one of our 
highest priorities. Since Governor Pataki took office in 1995, New York 
State has invested nearly $345 million in projects to achieve this 
priority B along with the funds spent by local governments and private 
organizations which are also committed to Long Island's environmental 
quality. The Governor's strong commitment to the wise and effective 
conservation of New York's natural resources is evident through the 
policies which he has championed for the Long Island region.
    One of our most important partners in our activities to protect 
Long Island Sound has been the United States Congress. Through the Long 
Island Sound Restoration Act of 2000 (LISRA), Congress authorized 
appropriations of up to $40 million annually for five years, to be 
shared equally between New York and Connecticut, for projects to 
restore the Sound's water quality and environmental resources. This 
authorization, totaling $200 million, was designed to ensure that the 
federal government matched the significant financial contributions 
which New York and Connecticut already have made to projects for the 
improvement of the Sound's environment.
    Approximately three million people live on Long Island. Within 50 
miles of the Sound the population balloons to a staggering 20 million 
people. Thus, pollution loading to the Sound can be considerable unless 
both the States of New York and Connecticut and the federal government 
make a concerted effort to protect the Sound's natural resources and 
water quality. Because Congressional appropriations under LISRA have 
been approximately one-tenth of the authorized amount, the 
reauthorization of LISRA and the continued infusion of federal funds 
into projects to implement environmental projects are still needed.
    The Department greatly appreciates the efforts of Congressmen Pete 
King and Jim Walsh for the much-needed LISRA appropriations. However, 
the reauthorization of LISRA and increased annual appropriations are 
needed to help New York and Connecticut reach our goal of restoring the 
Sound's water quality. For that reason, Governor Pataki has made the 
reauthorization of LISRA, and continued appropriations, a high 
environmental priority for 2005. New York State strongly supports the 
language of H.R. 307, sponsored by Congressman Simmons, which would 
reauthorize this statute.
    The questions regarding populations of the Eastern Oyster in the 
waters of New York and other states are intrinsically linked to the 
larger issue of the adequacy of funds, from all sources, to address the 
ecological problems which human populations can cause to fish and 
wildlife. The Eastern Oyster, like many other species, is a barometer 
of our success--or lack thereof--as stewards of our natural resources. 
The Department urges Congress to continue its support to the states on 
activities which protect our natural resources, consistent with sound 
ecological practices, while providing people with the opportunities to 
enjoy the natural benefits with which areas such as Long Island Sound 
abound.
    New York State is taking steps on its own to protect the Eastern 
Oyster. At the request of the Department, the New York State 
Legislature recently approved, and Governor Pataki signed, State 
legislation to authorize the Department to adopt regulations concerning 
oyster management. Presently, there are no size limits, catch or 
possession limits, seasons or other restrictions on the taking of 
oysters from New York State waters. Most of the towns on Long Island 
have established their own limits and seasons, leading to a lack of 
continuity between the State and local communities, and confusion for 
the baymen who harvest these oysters. Poaching has been an inevitable 
result of this patchwork of local laws. The new State law (Chapter 155 
of the Laws of New York State for 2005) will help us to ensure the 
long-term viability of oyster resources in State waters.
    In conjunction with this new State effort, the Department looks 
forward to working with the United States Congress, the National Marine 
Fisheries Service (NMFS), the commercial and recreational fishers of 
Long Island, and other interested parties, to resolve the ecological 
challenges faced by the Eastern Oyster along the Atlantic coast. The 
Department notes that the petition to designate the Eastern Oyster as 
an endangered species expresses serious reservations about the actions 
which Atlantic coast states have taken in response to reductions in 
Eastern Oyster populations. The Department believes that this petition 
is best addressed through the status review which NMFS intends to 
undertake, and we will be happy to share with NMFS and other interested 
parties our data on Eastern Oyster populations in New York State 
waters.
    Through this process, the Atlantic coast states, the United States 
Congress, and the people whose livelihood is dependent upon thriving 
populations of species such as the Eastern Oyster can assess the 
effectiveness of the Endangered Species Act on a regional basis. 
Working with agencies such as the United States Fish and Wildlife 
Service and NMFS, the Act assists the Department in the protection and 
restoration of declining populations of specific species. In New York 
State, these efforts have been very successful, ensuring the 
restoration of populations of our Nation's symbol, the Bald Eagle, 
peregrine falcons, the Karner Blue butterfly and the bog turtle, among 
other species. Through our efforts, we have successfully provided 
people who live or work near sensitive habitats with opportunities to 
continue their on-going activities in an environmentally-sustainable 
fashion. Activities to preserving endangered species in New York State 
are based on sound scientific principles, and have an excellent track 
record. We believe that the Endangered Species Act has been effectively 
implemented in New York State, and that our experience in working with 
our federal counterparts to implement this statute will be beneficial 
throughout the review of the status of Eastern Oyster populations.
    I appreciate the opportunity which the Committee has afforded to 
the Department to discuss our views on the Endangered Species Act 
through the current petition to protect the Eastern Oyster. We look 
forward to working with NMFS and others during the status review.
    Whether or not the Eastern Oyster is determined to be threatened or 
endangered, the declining populations of this species along the 
Atlantic Coast points to the necessity for all levels of government--
state, federal, and local--to work together cooperatively and 
effectively to wisely foster natural environments. I believe that the 
United States Congress can be most effective in assisting the states to 
improve our coastal resources through actions such as the 
reauthorization of LISRA, and through the appropriation of funds to 
ensure its effective implementation.
    Thank you for providing me with this opportunity to share the 
perspective of the Department on these important issues.
                                 ______
                                 
    [A letter submitted for the record by Bill Sieling, 
Executive Director, Chesapeake Bay Seafood Industries 
Association, follows:]
[GRAPHIC] [TIFF OMITTED] T2446.028

[GRAPHIC] [TIFF OMITTED] T2446.029

    [A letter and comments submitted for the record 
by Jack White, New Point Oyster Company, LLC, follows:]

                     New Point Oyster Company, LLC

                           Post Office Box 35

                          New Point, VA 23125

                              804/725-9894

                              703/408-2035

Dear Friend of Oysters,

    My name is Jack White and I own and operate the New Point Oyster 
Company. We supply cultivated oysters to Washington raw bars and have 
been voted the Number One oyster in the City at Old Ebbitt Grill's 
``Oyster Riot'', an annual wine and oyster competition. I am a former 
House staffer and lobbyist who gave up a lucrative and fulfilling legal 
career to dedicate my energies to restoring oysters in the Chesapeake 
Bay. I not only formed an oyster company, but also one that 
manufactures and markets home aquaculture systems to facilitate people 
growing oysters from their docks. We attend large public functions to 
educate the public about the importance of the oyster and the need for 
everyone to do their part in restoring this important resource. We have 
lobbied EPA, NOAA and numerous other resource agencies to implement 
proven market-based initiatives to show how to put significant numbers 
of oysters in U.S. waters with little or no cost to the taxpayer. I am 
writing to request your help in saving my business and industry. More 
importantly, I am writing to seek your help in saving the eastern 
oyster from listing on the ESA which will most assuredly lead to its 
destruction.
    I am appending a copy of my comments to NMFS/NOAA which give a 
quick rundown on where this process is headed and why it should not be 
implemented. Having worked on the Hill, I understand the constraints on 
your time and resources and have avoided detail and minutiae in the 
hope that you will find time to read my submission. I intend to visit 
the House Resources Committee on Monday, July 18, 2005 and will be 
happy to give you all the time necessary to satisfy your informational 
needs. There is also contact information above for your use. Please 
read my submission and give this pressing issue the time and effort 
that is required.

                           Very Truly Yours,

                               Jack White

                                 ______
                                 
comments to nmfs/noaa on petition to list eastern oyster as threatened 
         or endangered under the esa: wrong move; wrong reasons
    NMFS has solicited comments on whether the eastern oyster is 
endangered or threatened pursuant to conducting a status review as 
required by the ESA (Endangered Species Act) and in response to a 
petition filed by a private citizen seeking to restore water quality in 
the Chesapeake Bay to historic levels. While Petitioner's submission is 
quite articulate, compelling and laudable, it is not wholly accurate 
and its timing ignores significant improvements that suggest that the 
trend may be getting better. Most importantly, it calls for action that 
would lead to results that are the opposite of those intended. Any 
action that curtails or restricts the commercial aquaculture of the 
eastern oyster will eliminate the most significant contributor to 
stabilizing and improving oyster populations, the lynchpin of 
environmental health of aquatic ecosystems. Listing on the ESA will 
substantially set back oyster recovery and the innovations supporting 
it while rewarding and empowering the very parties (LMRAs) that 
Petitioner has cited as responsible for the problem.
    There is no new information or changes in conditions listed by 
Petitioner that would justify listing the eastern oyster on the ESA 
except for the threat of Maryland introducing Crassostrea ariakensis, 
an exotic species, that may or may not impact the eastern oyster. This 
appears to be the real reason that is moving this process. While I do 
not support its introduction, neither I, nor anyone else can say with 
specificity what its impact will be. Petitioner cites competition, 
hybridization and polydora (a native worm that also exists in eastern 
oysters), however, others counter by citing its disease resistance; 
added filtering capacity and reduced stresses on local populations. All 
are valid points, but there are many others, both known and unknown. 
The important fact is, it cannot be proven at this time that such 
introduction is a ``man-made factor affecting its (the eastern oyster) 
continued existence'' and therefore is not an appropriate criteria for 
triggering listing on the ESA. There is no other item in Petitioner's 
submission that is not historic and that has remained more or less 
static for the last decade and which would provide justification for 
such a draconian measure.
    Petitioner omits or overlooks important and substantial efforts 
that are adding millions of active, growing and reproducing oysters to 
the natural population and which suggest improvement that may not occur 
in statistics. Private commercial oyster aquaculture activities 
contribute substantially to water quality and are unrivaled in effort, 
innovation, number and success in putting oysters in the waters that 
constitute the eastern oyster's range. This effort is adding 
significantly to breeding populations; reducing pressure on wild stocks 
while increasing their numbers and gene pool; and providing many 
collateral environmental benefits. Listing the eastern oyster as 
threatened or endangered will curtail or eliminate these activities. It 
will also negatively impact supply and consumption of oysters at a time 
that public awareness, trust and demand for oysters is improving to a 
point that it will support wide-scale, sustainable, environmentally 
beneficial, aquatic activities. This is the wrong move, for the wrong 
reasons! Value-added products such as half-shell oysters that support 
sustainable aquaculture are the very activities that need to be 
encouraged and expanded. Placing restoration primarily or solely in the 
public sector has provided negligible, if not failed results and has 
been alluded to by petitioner as ``the expected positive 
impact...that...has not been very significant'' in his reasons why 
listing on the ESA is necessary.
    Hundreds of commercial oyster aquaculture operations in the eastern 
oyster range are actively growing oysters to market size and replacing 
those harvested with new crops, improvements in genetics and disease 
resistance continue and equipment innovations and techniques are 
routinely made. They work closely with resource agencies, academic 
institutions and researchers and often provide many of the resources 
that are necessary to move public efforts forward.
    These operations are almost exclusively funded with private monies 
and stand alone as a success story for introduction/manipulation of 
diminished natural stocks of oysters. These activities need to be 
encouraged rather than restricted, restrained or prohibited. If the 
eastern oyster is listed on the ESA, trading in a threatened or 
endangered species will be prohibited and most of this activity will 
cease and many of these operations will have to go out of business.
    Time, space and format rules preclude a lengthy discussion of the 
history and nature of oyster production, hence I will assume that the 
reader will understand and those in the industry will forgive the 
analogy of the ``hunter/gatherer'' which describes the historic 
harvesting of oysters as well as that of many other extractive 
resources. This analogy does not apply to today's industry which is 
based on environmentally beneficial, sustainable efforts where seed is 
produced, placed in containers and grown to market size and sold on a 
rotating basis. Most oysters now in commerce are the product of man's 
industry from beginning to end and in no way infringe on natural 
populations. They provide a significant collateral benefit by filtering 
water, forming important structure (habitat) and by reproducing, 
broadcast billions of spat into the estuary. Programs such as nutrient 
credit trading and oyster-based mitigation would provide a more 
sensible approach and avoid the negative impacts and damage of listing 
the oyster on the ESA.
    In closing, I can state unequivocally, that there are more oysters 
in the Chesapeake Bay now, than were there ten years ago! The problems 
cited are historic and the solutions sought are prohibitively expensive 
if not impossible. The eastern oyster should not be listed as 
threatened or endangered and under all circumstances private oyster 
aquaculture activities should be protected.
                                 ______
                                 
    The Chairman. I would like to call our first panel of 
witnesses up today. Mr. S. Lake Cowart, Jr., Dr. Robert B. 
Rheault. Mr. Michael C. Voisin? Voisin. I am learning here. 
Come on. Mr. Joseph Gergela. And Mr. Michael Bean.
    Mr. Melancon. Mr. Chairman, before they start, if I could? 
Congressman Bishop has a statement he would like included in 
the record.
    The Chairman. Without objection, so ordered.
    [The prepared statement of Mr. Bishop follows:]

   Statement of The Honorable Timothy H. Bishop, a Representative in 
                  Congress from the State of New York

    Mr. Chairman, Ranking Member Rahall, and distinguished members of 
this Committee, I applaud you for calling this important hearing and 
thank you for giving me this opportunity to discuss how listing the 
Eastern Oyster as a threatened or endangered species would affect the 
fishing industry and related businesses in my district.
    I represent a constituency that depends on an extremely delicate 
balance of environmental conservation and sound management of our 
fisheries to sustain Long Island's economic progress. The First 
Congressional District of New York is host to the Long Island Sound on 
our north shore, the Atlantic Ocean to our east and south, and the 
Great Peconic Bay splitting our twin forks on the island's east-end. 
These bodies of water are the lifeblood of our economic survival and 
serve as a constant reminder of our rich heritage as one of the 
Nation's oldest and most storied fishing communities. As this area's 
Representative in Congress, I take any move to disrupt this equilibrium 
very seriously, as do my constituents.
    Long Island's oyster harvests have seen better days, but its future 
is far from having been decided. After experiencing parasitic diseases 
and brown tide that decimated the oyster harvest in the 1990s, the 
industry took the initiative to rehabilitate the oyster population by 
introducing a shellfish that proved more resistant to disease. Coupled 
with a renewed focus on improving stewardship of the local waterways, 
the shellfish industry--in partnership with environmental advocates and 
elected officials--have combined efforts to reverse the decline of the 
oyster industry on Long Island and steered it back toward the path to 
recovery. In just five years, using innovation, technology, and 
patience, we were able to increase oyster harvests fivefold--from 9,020 
bushels in 1999 to nearly 50,000 bushels in 2004. Our story, while 
still a work in progress, is a shining example of how active management 
and prudent stewardship can stave off an environmental disaster and 
instead result in rehabilitating the environment and preserving the 
most vulnerable species, like the Eastern Oyster populations off the 
shores of Long Island.
    Although I sympathize with the crises faced by the shellfish 
industry in the Chesapeake Bay, the implications of listing the Eastern 
Oyster would be disastrous for the Long Island oyster industry and 
related businesses. Just as New York and Connecticut were able to 
cooperatively rebuild their oyster industries, so too can Maryland 
recover the Eastern Oyster population in the Chesapeake Bay through a 
similar effort involving patience, perseverance, and grounded science. 
However, the Endangered Species Act alone will not facilitate the 
active management that is necessary to accomplish those efforts. It 
will take everyone with a stake in the industry to achieve such 
success. Therefore, Mr. Chairman, I oppose the proposed listing of the 
Eastern Oyster on the ESA.
    The Eastern Oyster crisis in the Chesapeake seems to reflect 
similar problems that were once unique to the oyster populations along 
the northeast Atlantic coastline and Long Island Sound during the 1980s 
and portions of the 1990s. However, after taking proactive measures to 
combat a diminished harvest and overall oyster population, the region 
is rebounding and reaping financial and environmental rewards. The 
Chesapeake Bay region can find a similar turnaround in its oyster 
population were it to use the same approach.
    Accordingly, I believe that we must approach this problem by 
recognizing that each region has its own set of challenges unique to 
that location without jeopardizing the jobs and future of hard-working 
Americans and their families who rely upon the Eastern Oyster for their 
livelihood.
    Mr. Chairman, the shellfish harvested on Long Island, both 
naturally and through aquaculture farming, has a wholesale value of $37 
million per year, as reported by the New York State Department of 
Environmental Conservation. This value does not include the income from 
associated businesses, including transportation, packaging, and 
restaurant revenues. Removing the Eastern Oyster, a carefully managed 
and safeguarded part of this industry, would cause significant harm to 
Long Island's shellfish industry.
    The Endangered Species Act of 1973 has been an effective and 
landmark measure to preserve and protect threatened plants and wildlife 
as well as the habitats that they call home. However, this particular 
petition that is the focus of today's hearing has been filed without 
the foundation of sound science and cites a regional problem as a 
global phenomenon. I would urge the National Oceanic & Atmospheric 
Administration to take a moment to employ the delicate caution 
necessary to ensure that a regional issue does not unnecessarily invoke 
a burden on a larger scale, thereby causing irreparable harm.
    Mr. Chairman and distinguished members of this Committee, I look 
forward to working with you toward that end and thank you again for the 
opportunity to present my views on this important matter.
                                 ______
                                 
    The Chairman. If I could have the panel stand and raise 
their right hand?
    [Witnesses sworn.]
    The Chairman. Thank you very much.
    Let the record show they all answered in the affirmative. 
We welcome you to the Committee. I look forward to hearing your 
testimony. I know a number of you. This is an extremely 
important issue.
    Mr. Cowart, we are going to begin with you.

       STATEMENT OF S. LAKE COWART, JR., VICE PRESIDENT, 
                   COWART SEAFOOD CORPORATION

    Mr. Cowart. Thank you, Mr. Chairman.
    I am Lake Cowart with Cowart Seafood Corporation, and I am 
a fourth-generation oyster processor and grower in the State of 
Virginia. And we certainly appreciate your comments at the 
beginning of this hearing.
    The Virginia seafood industry opposes the petition to list 
the eastern oyster for the following reasons. First reason is 
the petition has misused the Endangered Species Act in an 
attempt to halt the proposed non-native introduction in the 
Chesapeake Bay, not to protect the eastern oyster from 
extinction.
    Secondly, the eastern oysters are abundant in several 
regions of its native range, including the Gulf coast States 
and the North Atlantic. The Chesapeake Bay does not have the 
historic harvest that it once had, but it does have harvestable 
quantities of oysters.
    And thirdly, eastern oysters in the Chesapeake Bay cannot 
be classified as sub-species. Millions of mature oysters from 
the Gulf coast and Delaware Bay have been planted and have 
reproduced in the Chesapeake Bay. Scientific breeding programs 
have used disease-resistant eastern oyster strains from 
Louisiana and Delaware Bay for years to crossbreed with wild 
Chesapeake Bay oysters in the hopes of transferring those 
disease-resistant genes.
    So we believe that this petition is a misuse of the 
Endangered Species Act. The petitioner is misusing the 
Endangered Species Act to prevent the introduction of a non-
native oyster in the Chesapeake Bay. The Federal Register 
stated, ``The petition expresses concerns about the proposed 
introduction of the exotic Asian oyster, Crassostrea 
ariakensis, because it could result in the extinction of the 
eastern oyster through competition and hybridization.''
    This is totally false. Since Allen and his colleagues 
proved in 1993 that these oysters do not hybridize, there is no 
proof that non-native oysters will outcompete the eastern 
oyster. In fact, in federally permitted oyster trials in 
Virginia over the last several years, eastern oysters strike or 
attach--the small oysters do--more readily to the non-native 
shells than they do to their own species.
    In summary, the Endangered Species Act is not the proper 
forum to attempt to justify an opinion on a proposed non-native 
oyster introduction in a small geographical region like the 
Chesapeake Bay. Secondly, the eastern oyster is not in danger 
of extinction. The petitioner fails to recognize that healthy 
populations of eastern oysters exist in the Gulf coast States 
and the North Atlantic, which makes up the majority of the 
eastern oyster's native range.
    Although the Chesapeake Bay may not support commercial-
scale harvest like other regions, there certainly are 
ecologically important and healthy eastern oyster populations 
in the Chesapeake Bay. Since 1992, Virginia has been a leader 
in the creation of oyster reefs and other areas, such as the 
Lower Rappahannock and Mobjack bays, where oysters are 
prohibited from being harvested.
    When salinities fall due to ample rainfall, oysters are 
more abundant. And as an example, in 2004, the Lower James 
River and Newport News produced thousands of bushels of the 
eastern oysters due to high rainfall in the years 2003 and 
2004.
    Thirdly, I do not believe that there is a sub-species of 
eastern oysters. The petitioner is wrong to conclude that the 
Chesapeake Bay oysters are a sub-species of the eastern oysters 
for the following reasons.
    Mature, reproducing eastern oysters from Delaware Bay and 
the Gulf coast have been legally planted on private beds in 
Virginia for years. These oysters are planted in the spring and 
harvested throughout the summer. Spawning occurs in these 
oysters several times per year and coincides with the wild 
Chesapeake Bay oysters. Therefore, the potential exists for 
mixing between these oysters.
    Also the disease-resistant scientific breeding programs in 
the mid-Atlantic have used Louisiana and Delaware Bay oysters 
for years. These programs are specifically designed to inbreed 
with wild Chesapeake Bay eastern oysters to increase future 
disease resistance. In the last few years, the Federal 
Government, in conjunction with the State of Virginia, has 
planted millions of these disease-resistant eastern oysters 
originally from Delaware Bay in hopes of accomplishing gene 
transfer.
    For these reasons, we feel that this petition should be 
denied. We thank you for the opportunity to address this 
committee.
    [The prepared statement of Mr. Cowart follows:]

           Statement of S. Lake Cowart, Jr., Vice President, 
                          Cowart Seafood Corp.

    By way of background information, Cowart Seafood Corp. operates one 
of the largest oyster shucking-packing businesses in Virginia. We have 
been in the oyster business since the early 1900's and I have been 
intimately involved in all aspects of the industry for the last three 
and a half decades. I have witnessed the oyster population in Virginia 
rise and fall with changing environmental conditions.
    Through the mid-1980's, oysters were an ecologically and 
commercially viable species. However, after 1986 oysters were less 
plentiful, but not absent from the Chesapeake Bay. Drought conditions, 
coastal run-off and pollution have all contributed to oscillations 
within oyster abundance. Certainly commercial harvests have oscillated 
in response to oyster abundance. For example, one year thousands of 
bushels of oysters may be harvested but then fewer oysters may be 
caught in subsequent years. Despite an apparent ``false commercial 
extinction'', oysters were still present in the Bay during these less 
abundant years. One thing is for sure, oystermen still tried to catch 
oysters but environmental conditions changed the Bay's ecosystem. In 
the short term oysters are highly sensitive to environmental 
conditions, yet in the long term resilient to these changes. They have 
survived in the Bay for millions of years because of their ability to 
adapt over evolutionary time. Oysters have not gone extinct over these 
evolutionary time scales enduring massive changes to their environment.
    More recently, say within the last half a century, the Bay has 
changed once again due to coastal and watershed-level development, 
oyster parasite proliferation and pollution. This shift in the Bay's 
inputs has caused the oyster population to remain at a low abundance 
compared with historic levels. However, oysters have not been able to 
adapt and will not be able to adapt to these changes that have occurred 
in the last half century because of deforestation, run-off, and reduced 
repletion of surface groundwater that eventually flows into streams 
feeding the Bay. Proponents of this petition may blame over-harvesting 
as the causative agent for this decline, however, commercial-scale 
oyster harvesting has not occurred in the Bay for the last twenty 
years. Why hasn't the Bay's population of oysters recovered? The answer 
is that oysters are not the problem they are the solution. The actual 
problem that needs to be addressed is poor water quality caused by 
pollution and run-off. Unfortunately, this petition targets the 
solution and not the problem.
    I strongly oppose this petition to list the eastern oyster, 
Crassostrea virginica, as an endangered or threatened species. The 
following is a list of reasons, from an industry perspective, of the 
negative impacts if the eastern oysters were to be listed:
    1.  Loss of irreplaceable industry infrastructure, primarily large 
shucking houses and aquaculture operations. Once these businesses are 
lost it is too expensive to re-purchase waterfront land and acquire or 
rebuild oyster houses and sorting operations. The Virginia oyster 
industry provides $50,000,000 in annual sales and employs 1,000-1,500 
workers.
    2.  Continued degradation of oyster beds. The industry works hard 
at maintenance of their oyster beds by ``turning over'' shells to 
remove sediment build-up thereby allowing oyster larvae suitable 
substrate to settle.
    3.  Loss of recovery/replenishment/restoration initiatives fostered 
by collaborations with industry, governmental agencies (state and 
federal), scientific institutions, special interest groups and the 
public. The State of Virginia is committed to oyster restoration 
through reef building, creation of oyster sanctuaries, and repletion 
efforts.
    4.  Loss of private companies planting oyster shell and seed 
oysters to increase population abundance and encourage oyster larval 
settlement. For example, in any one-year Bevans Oyster Company and 
Cowart Seafood in Virginia have planted 100,000's of bushels of shells 
on existing oyster beds and millions of seed (juvenile) oysters struck 
on shell in the hopes of restoring oyster populations.
    5.  Local and state economies would suffer because of the loss of 
jobs and economic multipliers such as purchasing of packing materials, 
fuel, ice, and transportation.
    I challenge and oppose this petition based on the observations I 
have made in my own backyard, the Chesapeake Bay. Virginia state 
regulators and scientific institutions have documented oyster 
settlement in the Bay for years and juvenile oysters are plentiful 
during this fall survey post reproduction. However, these oysters die 
and do not reach market size, so subsequently, the layperson assumes 
oysters are ``going extinct''. This assumption is false. Oysters are 
present in this ecosystem, maybe not as abundant as other regions, but 
C. virginica certainly exist. The actual reason these juvenile oysters 
do not survive to market size is because of disease proliferation and 
pollution induced-mortality.
    Due to low salinity market size oysters survived in the James River 
and Tangier Sound ecosystem just this past year and a limited basis 
fishery was opened temporarily. Although just a short commercial 
harvest was realized this is clear evidence that oyster populations 
survive when localized environmental conditions are favorable. This has 
been a rare event in the past. Essentially, we have not had commercial-
scale harvests (1 million bushels) in the State of Virginia for the 
last 20 years or more. The petition alludes to the fact that a 
moratorium of harvesting oysters would solve the problem, however, we 
have essentially been under a moratorium and oysters have not 
recovered. For example, in the Rappahannock River oyster beds from the 
Whitestone Bridge to the mouth of the River has been closed for 
commercial harvest since 1992 and despite extensive repletion efforts 
oyster abundance has not recovered. This clearly demonstrates that 
over-harvesting is not the reason oyster populations have not recovered 
and implementing a harvest moratorium is going to nothing to increase 
oysters in the Bay.
    I would also like to address the issue of subspecies of C. 
virginica. I understand that NOAA/NMFS will be examining mitochondrial 
DNA sequences to determine if certain regions constitute subspecies. 
This seems to be very subjective. It is my understanding that 
mitochondrial DNA sequences can be ``picked apart'' to the very last 
individual gene and marker, however, the fact remains that oysters 
within the native range (Gulf of St. Lawrence to Gulf of Mexico and 
south through the Caribbean to the Yucatan Peninsula) are of the same 
genus and species. I would further challenge the determination as a 
subspecies because interstate transplanting had taken place for 
decades. I personally know of several companies in Virginia that bought 
thousands of bushels of mature Louisiana and Delaware Bay oysters and 
planted them in the Chesapeake Bay during reproductive seasons. This 
planting of mature oysters means that billions of sperm and egg are 
released into the Bay and most likely competent oyster larvae will 
result. The Virginia Department of Health now prohibits the planting of 
Gulf coast oysters but mature Delaware Bay oysters are legally planted 
in abundance in Virginia each year. Certainly, some hybridization and 
interbreeding occurred over time. In addition, breeding programs at 
scientific institutions in the Chesapeake Bay region have worked for 
years with oyster strains taken directly from Louisiana and Delaware 
Bay waters. These oysters were selectively bred with native Chesapeake 
Bay oysters in the hopes of accomplishing transfer of disease resistant 
genes. Several industry members in Virginia were part of studies 
involving the field performance of these experimental oysters, in most 
cases these were planted adjacent to wild stock Bay oysters. A 
reasonable person would have to assume that over the course of years 
and years of experiments and hundreds of thousands of test oysters 
deployed for up to three growing seasons, some degree of hybridization 
and interbreeding occurred.
    The Federal Register stated ``the petition expresses concern about 
the proposed introduction of the exotic Asian oyster, Crassostrea 
ariakensis because it could result in the extinction of the eastern 
oyster through competition and hybridization...'' which I believe is 
poor use of the Endangered Species Act as this does not belong in a 
petition as a reason to list a completely different species. The 
petitioner is clearly opposed to this non-native introduction however 
this is not the proper forum to accomplish his objectives. In fact, the 
petitioner has not been complete in his research as the documented 
literature clearly states that C. virginica and C. ariakensis (=C. 
rivularis) only develop to 7-day larvae but do not hybridize (Allen, 
S.K., Jr, P.M. Gaffney, J. Scarpa, D. Bushek. 1993. Inviable hybrids of 
Crassostrea virginica (Gmelin) with C. rivularis (Gould) and C. gigas 
(Thunberg). Aquaculture vol. 113. pp. 269-289).
    Finally, I would point out that the petition seems to concentrate 
on the Chesapeake Bay region, however that is one small geographical 
area compared to the vast oyster ground available in the Gulf coast 
states and Atlantic coast states. By all accounts, the Gulf coast 
population is healthy, reproducing and abundant yet is completely 
ignored in the petition. The Gulf coast region makes up a significant 
portion of the eastern oyster industry and native range but ironically, 
this information is missing in the petition.
                                 ______
                                 
    The Chairman. Thank you.
    Dr. Rheault?

       STATEMENT OF ROBERT B. RHEAULT, Ph.D., PRESIDENT, 
            EAST COAST SHELLFISH GROWERS ASSOCIATION

    Dr. Rheault. Mr. Chairman, members of the Committee, I 
would like to thank you for this opportunity to comment on this 
petition. As President of the East Coast Shellfish Growers 
Association, I represent about a thousand small farmers from 
Maine to Florida.
    For the past 20 years, I have run my own small oyster farm 
in Rhode Island. I have a degree in oceanography, and I did my 
thesis work on the feeding and growth of oysters. In short, my 
life revolves around oysters. I could talk for hours about why 
this is a bad idea, but I will try and keep my testimony to 5 
minutes and ask that you read my written comments.
    I have three points I hope to make today. First, I believe 
the petitioner makes selective use of the data to paint a 
picture that appears dire, but conceals the fact that oysters 
are thriving in many areas. We recently estimated that there 
are currently somewhere in excess of 10 billion--with a ``b''--
oysters in U.S. waters.
    Secondly, the petitioner attributes much of the decline of 
the oysters to degraded water quality, excessive silt, and 
nutrient loading. In fact, the oyster is well adapted to rich, 
turbid waters and thrives in many of our most polluted coastal 
estuaries.
    The third point I would like to make is that the listing of 
the oyster will have serious negative environmental impact 
because it will eliminate much of the private commercial 
aquaculture of oysters. Oyster culture has been shown to 
benefit water quality and provide a sustainable source of free-
swimming larvae into the watershed.
    The petitioner describes the decline of the oyster on the 
East Coast. However, he neglects to include the data from the 
Gulf coast region, which maintains a sizable harvest. Clearly, 
this is the same species.
    Moreover, the data is deceptive because the Chesapeake-
Delaware region was historically such a huge percentage of the 
Atlantic coast production. It appears as if the entire 
population has suffered when, in fact, the population declines 
are largely centered in the mid-Atlantic States, while New 
England and Gulf coast populations are relatively stable.
    Mid-Atlantic States have been hit hard with the triple 
threat of two parasitic diseases, a degraded habitat, and a 
mismanaged wild harvest. Outside the mid-Atlantic region, other 
States wrestle with each of these three threats to various 
degrees, yet oyster populations are relatively healthy, and 
oyster aquaculture is expanding. The decline of the oyster in 
the mid-Atlantic is a failure of fisheries management that has 
gone on for decades.
    Dr. William Brooks wrote about the Chesapeake harvests in a 
book called ``The Oyster'' in 1891. ``Our oyster policy is 
destructive and sure to result, ultimately, in ruin to the 
industry. The oyster property of the State is in imminent 
danger of complete destruction unless radical changes in the 
methods of managing the beds are made at once.''
    It is important to note that his predictions pre-dated the 
oyster diseases that hit in the 1930s and 1950s, as well as the 
dredging and habitat destruction discussed in the petition. 
Unfortunately, the work of Dr. Brooks was ignored, and his 
predictions proved accurate.
    In stark contrast, New England has experienced an oyster 
renaissance through aquaculture. In 1972, Connecticut growers 
placed a million bushels a shell on setting grounds. Harvest 
went from 30,000 bushels a year to nearly a million bushels in 
just 10 years, a $60 million a year oyster industry with 650 
jobs was reborn. The Rhode Island oyster aquaculture industry 
is growing at 28 percent a year for the past 5 years. 
Massachusetts has some 300 aquaculture leases. New York oyster 
culture permits have tripled in the past 15 years, while landed 
harvests go from 1.2 million to 3.4 million.
    Even in Virginia, private growers prosper using hatchery-
reared seed and intensive culture techniques. This despite the 
intense disease pressure and degraded water quality alluded to 
in the petition. The take-home message is that with proper 
management, we can have a profitable oyster industry despite 
diseases and pollution. We should not use the Endangered 
Species Act as an instrument to rectify decades of mismanaged 
fisheries in the mid-Atlantic.
    The second point in the petition I would like to refute is 
that declining water quality, high silt loading, and nutrient 
loading are to blame for oysters disappearance. The oyster is 
uniquely adapted like no other shellfish to thrive in 
conditions of soupy, turbid water. The feeding apparatus is 
capable of sorting microscopic particles of silt from those 
which are nutritious algae. And oysters thrive in some of the 
most severely degraded estuaries on the eastern seaboard.
    The last point I would like to make is that adding the 
oyster to the endangered species list will damage the shellfish 
aquaculture industry, which, in turn, will hurt both the wild 
oyster population and the marine environment. While I 
understand that the ESA does not permit consideration of 
economic factors such as jobs or harvest, if the listing does 
go forward, we can be assured that the market for oysters will 
collapse, and interstate transport of oysters will become a 
regulatory paperwork nightmare. Farming will cease to become 
profitable.
    Well, environmental groups now recognize that oyster 
culture is sustainable and has significant environmental 
benefits. Oysters farms have been shown to increase the 
diversity and abundance of fish and crustaceans. My oysters on 
my tiny, little farm filter over 100 million gallons a day, and 
my oysters cast trillions of larvae into the tides, where they 
replenish wild stocks.
    And because I invest tens of thousands of dollars each year 
in new seed, my harvest is sustainable. And when I harvest, I 
remove nitrogen from the watershed. There are literally 
thousands of small growers like myself up and down the coast, 
and I hope you can see there will be negative impacts to the 
environment and to wild populations if this petition goes 
forward.
    Thank you.
    [The prepared statement of Dr. Rheault follows:]

           Statement of Robert B. Rheault, Ph.D., President, 
                East Coast Shellfish Growers Association

    First of all I want to thank you for the opportunity to comment on 
this petition. As President of the East Coast Shellfish Growers 
Association I represent thousands of small farmers from Maine to 
Florida. For the past 20 years I have run my own small oyster farm in 
Rhode Island. I have a degree in Oceanography and my thesis was on the 
feeding and growth of oysters. Most of my life revolves around oysters.
    I would like to point out what I believe are certain flaws in the 
petition to list the oyster as endangered.
    First, the petitioner makes selective use of the data to paint a 
picture that appears dire, but conceals the fact that oysters are in 
fact thriving in many areas. We recently estimated that there are 
currently somewhere in excess of five billion oysters in U.S. waters 
based solely on what goes to market each year.
    Second, the petitioner attributes much of the decline in oysters to 
degraded water quality and excessive silt and nutrient loading. In fact 
the oyster is well adapted to rich turbid waters and thrives in many of 
our most polluted coastal estuaries.
    The third point I would like to make is that the listing of the 
oyster will have serious negative environmental impact by virtue of the 
fact that it will curtail or eliminate much of the private commercial 
aquaculture of oysters. Oyster culture has been shown to benefit water 
quality, provide habitat for juvenile fish and provide a sustainable 
source of free swimming larvae into the watershed.
    The petitioner has submitted an eloquent and convincing case 
describing the decline of the oyster on the East Coast. He neglects to 
include the data from the Gulf Coast region, which maintains a stable 
and sizeable harvest of oysters. Clearly this is the same species. Had 
he included this data the decline would not appear as drastic as his 
data appear to suggest.
    Moreover, the data set is deceptive because the Chesapeake-Delaware 
region was historically such a huge percentage of the Atlantic coastal 
production that it appears as if the entire population has suffered 
when in fact the population declines are largely centered in the mid-
Atlantic states, while most New England and Gulf coast populations are 
(with tremendous year to year variation) relatively stable over the 
long term.
    Furthermore, harvest statistics do not accurately track abundance. 
Most states have substantial populations of oysters behind pollution 
closure lines that serve as spawner sanctuaries and yet never reach the 
market.
    The mid-Atlantic states have been hit hard with the triple threat 
of two parasitic diseases, a degraded habitat and a mismanaged wild 
harvest. Outside the mid-Atlantic region other states wrestle with each 
of these three threats to various degrees, but oyster populations are 
relatively healthy and oyster aquaculture is in many cases expanding.
    To put the issue in perspective it helps to review a little of the 
history of oystering.
    For the past hundred and fifty years oyster management has been a 
delicate balance of regulating a wild fishery and augmenting wild 
populations with certain forms of public aquaculture enhancement. 
Around 1830 it was discovered that sets could be enhanced by placing 
clean shell in key setting beds, and then relaying the seed oyster to 
growing grounds. This simple aquaculture tool coupled with advances in 
harvesting efficiency brought the Maryland harvest from roughly 2 
million bushels to nearly 15 million bushels by 1880. Overzealous 
harvesters pounded the beds and over the next 20 years those harvests 
had declined to 3 million bushels.
    Dr. William Brooks wrote in The Oyster in 1891 ``We have wasted our 
inheritance by improvidence and mismanagement... ``our oyster policy is 
destructive and sure to result, ultimately in ruin to the industry. 
``the oyster property of the state is in imminent danger of complete 
destruction unless radical changes in the methods of managing the beds 
are made at once.''
    It is important to note that his predictions predated the discovery 
of significant oyster disease and the bulk of the dredging and habitat 
destruction that has occurred in the past 100 years. Unfortunately the 
work of Dr. Brooks was ignored and his predictions proved accurate.
    To the north natural populations were also quickly being depleted 
by overzealous harvesters. Many states allowed private individuals to 
lease bottom for commercial aquaculture. In Rhode Island, Connecticut 
and Long Island turn-of-the century entrepreneurs developed oyster 
farms that produced several millions of dollars (in today's value) 
worth of oysters each year. Hundreds of thousands of barrels of oysters 
were shipped to England and by train to the West Coast.
[GRAPHIC] [TIFF OMITTED] T2446.001


    After the turn of the century the New England industry went into 
decline. By 1950 the private farms had ceased to produce. The forces 
that conspired to eliminate oyster farming were not biological, but 
rather they were economic. First the invention of the flush toilet in 
1900 (before the development of sewage treatment plants) resulted in 
several cholera epidemics which subdued the market for oysters. The 
cheap labor pool went off to fight in world War II and oysters were not 
affordable for depression era families.
New England's Oyster Farming Revival
    Connecticut has fostered a resurgence of the oyster industry. With 
techniques little changed from a hundred years ago, the industry was 
revived with a large dose of faith and public and private investment. 
In 1972 a million dollars worth of shell was dumped on the setting 
grounds and the industry bounced back. Prior to this the annual harvest 
was about 30,000 bushels. Within ten years the harvest was back up to 
nearly a million bushels a year. A $60-million-a-year oyster industry 
with 650 jobs was reborn.
    Connecticut's oyster industry has subsequently suffered setbacks 
from the same parasitic diseases that have ravaged the mid-Atlantic, 
and periodically wild larval sets disappoint, but the industry still 
sustains a harvest that is hundreds of times what an un-enhanced wild 
fishery would yield on its own.
    The take-home message is that with proper management and incentives 
we can have a profitable oyster industry despite devastating diseases, 
pollution closures and habitat loss. Production from aquaculture is up 
sharply in the past twenty years. The profit motive has come back and 
there is a proliferation of small oyster farms in New England who are 
using a host of methods to grow oysters successfully.
    Innovative oyster farmers in Rhode Island rely on hatchery-reared 
seed to fill their racks and cages. This is an industry that has grown 
28% a year for the past five years.
    Massachusetts has some 300 shellfish aquaculture leases--most of 
which are less than 20 years old.
    In New York, oyster culture permits have tripled in the past 
fifteen years and the landed value of harvests has gone from $1.2 
million to $3.4 million.
    Even in Virginia where the wild populations are in decline, private 
growers who have leases have found that they can prosper using 
hatchery-reared seed and intensive culture techniques. This despite 
intense disease pressure and degraded water quality alluded to in the 
petition. The difference lies in the ownership of the crop. Where 
private leases have been resisted in favor of preserving the artisanal 
wild-harvest fishery you find that there is little incentive to invest 
adequately in the rejuvenation of the seed beds.
    The differences in these management approaches (public fisheries 
versus private farms) have been noted by many experts over the years. 
In The Oyster (1891) Dr William Brooks wrote eloquently of the 
possibilities of oyster culture in the Chesapeake Bay and the problems 
of unmitigated free and common fisheries. His comments are as valid 
today as they were over a century ago. ``Our opportunities for rearing 
oysters are unparalleled in any other part of the world..''
    Recently, numerous groups have made a concerted effort to replenish 
the oyster bars and some of these efforts are starting to bear fruit. 
However, many fear that these efforts will be doomed to failure unless 
the destructive harvest practices of the past are curtailed. 
Unfortunately, funding for these replenishment efforts was cut in the 
most recent federal budget. This is often the fate of publicly funded 
fishery restoration efforts because there is a disconnect between those 
footing the bill and those reaping the benefit.
    We should not use the Endangered Species Act as an instrument to 
rectify decades of mismanaged fisheries in the mid-Atlantic. While the 
ESA is an important and valuable tool, the ESA is a blunt instrument 
and was never intended as a fisheries management tool.
    The fisheries management practices of the past have failed to 
protect the resource. We need only look to the north to see how there 
is a tremendous potential to rejuvenate the oyster resource through 
private commercial aquaculture. It can succeed even in areas where 
disease pressure is severe and water quality is degraded.
    The second point in the petition I would like to refute is that 
declining water quality, high silt loading and nutrient loading are to 
blame for the oysters disappearance. The oyster is uniquely adapted 
like no other shellfish to thrive in conditions of soupy turbid water. 
The feeding apparatus is capable of sorting microscopic particles of 
silt from those which are nutritious alga. Oysters thrive in some of 
the most severely degraded estuaries on the eastern seaboard.
    During my thesis work I experimented with growing oyster seed under 
docks in marinas. We expected problems from the heavy metals in the 
bottom paints and the fuel spills, however we experienced nearly 100% 
survival and growth rates as fast as any reported in the literature. 
Based on the data I supplied to the FDA showing these animals were safe 
to consume after a few months in clean waters, the FDA changed its 
regulations to allow nursery culture of shellfish seed in uncertified 
waters, a practice in wide use today. I now culture my entire crop of 
three million animals a year under the docks of a local marina.
    The last point I would like to make is that adding the oyster to 
the endangered species list will have severe negative repercussions to 
the shellfish aquaculture industry, which will in turn have negative 
implications for both the wild oyster population and the marine 
environment. I understand that the ESA does not permit consideration of 
economic factors such as jobs or harvests, but if the listing goes 
forward we can be assured markets will be damaged and interstate 
transport of cultured oysters will become a regulatory and paperwork 
nightmare. Siting of new aquaculture leases in protected essential 
oyster habitat will be impossible.
    Under this scenario, my small farm, which occupies 2.3 acres and 
employs five year-round, will cease to be profitable. A graduate 
student recently documented the abundance of fish and critters that 
live in and around my oyster cages. He found ten times the abundance of 
fish and crustaceans as he found in a nearby eelgrass bed. In summer I 
estimate there are a thousand baby lobsters and tens of thousands of 
juvenile fish that make our cages their home.
    My oysters filter over a hundred million gallons a day removing 
silt and improving water clarity. Each year my oysters cast trillions 
of larvae into the tides where they replenish wild stocks.
    Because I invest thousands of dollars each year in new seed my 
harvest is sustainable and when I harvest I remove nitrogen from the 
watershed (in the form of protein) and ship it off to Manhattan or DC. 
Only about 40 pounds of nitrogen a year, but then I have only a small 
farm.
    There are literally thousands of small growers like myself up and 
down the coast. It is easy to see there will be negative impacts to the 
environment and to wild populations of oysters if this petition goes 
forward.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Voisin?

           STATEMENT OF MICHAEL C. VOISIN, CHAIRMAN, 
                  LOUISIANA OYSTER TASK FORCE

    Mr. Voisin. Chairman Pombo and members of the Committee, I 
want to thank you for this opportunity to testify before you on 
the status of the eastern oyster and the petition to list it 
under the Endangered Species Act.
    I am Mike Voisin, Chairman of the Louisiana Oyster Task 
Force, a governmental agency within the Louisiana Department of 
Wildlife and Fisheries composed of Oyster Industry Association 
and governmental agency appointees. The Louisiana Oyster Task 
Force was created in 1988.
    I am currently President of the Molluscan Shellfish 
Committee, a part of the National Fisheries Institute, and a 
board member of the Gulf Oyster Industry Council and the 
Louisiana Oyster Dealers and Growers Association.
    I am a seventh generation oyster farmer and processor. Our 
farm comprises approximately 14,000 acres of water bottoms in 
coastal Louisiana, which produces between 15 million to 25 
million pounds of in-shell oysters annually. This represents 45 
million to 75 million individual oysters that we harvest on an 
annual basis. Since our oysters take anywhere from 2 to 4 years 
to grow to harvest size, this means that, at any one time on 
our farm, we may have anywhere from 135 million to 225 million 
individual oysters on our water bottoms.
    The State of Louisiana produces approximately 250 million 
in-shell pounds of oysters annually or 750 million individual 
oysters with a similar growth cycle of 2 to 4 years to market 
size. This means that, at any one time, there are approximately 
2.25 billion oysters in our oyster farms and public producing 
areas, many of which--in fact, a predominance are in 
Representative Melancon's area, which we think is the largest 
oyster-growing area maybe even in the world.
    The Gulf States, combined with Louisiana, produce annually 
approximately 500 million in-shell pounds of oysters, totaling 
approximately 1.5 billion individual oysters and maintaining 
approximately 4.5 billion individual oysters in Gulf producing 
areas at any one time. So one might ask why anyone would 
consider eastern oysters for a listing on the Endangered 
Species Act? That is a question that I ask myself.
    Even in areas along the eastern United States seaboard, 
where in some areas oyster diseases have had an impact on 
harvestable populations, there are hundreds of millions of 
individual oysters in coastal oyster growing areas. Could the 
answer to my question be that someone is trying to impact the 
livelihood of thousands for a personal political agenda by 
using the Endangered Species Act? If this is the case, which it 
appears to be, then maybe Congress needs to look at significant 
changes to this act.
    The petition to list the eastern oyster as endangered or 
threatened under the Endangered Species Act is targeted at 
concerns in the Chesapeake Bay. For a number of years, Congress 
has funded oyster research in this area, and some successes 
have occurred. Thomas Jefferson, our third President, said, 
``Nothing can stop the man with the right mental attitude from 
achieving his goal. Nothing on Earth can help the man with the 
wrong mental attitude.''
    I believe that Congress has had the right mental attitude 
in funding this research and development and should continue to 
do so. I believe that the petitioner may have the wrong mental 
attitude relating to this concern.
    We must continue to press forward on resolving whatever 
concerns are presented to the oyster community. As Babe Ruth 
said, ``We must never let the fear of striking out get in our 
way.''
    Thomas J. Watson, a successful businessman, said, ``Would 
you like me to give you a formula for success? It is quite 
simple, really. Double your rate of failure. You are thinking 
of failure as the enemy of success, but it isn't at all. You 
can be discouraged by failure, or you can learn from it. So go 
ahead and make mistakes. Make all you can because, remember, 
that is where you will find success.''
    I believe that we are getting closer to narrowing in on a 
significant success in the Chesapeake's oyster challenge. But 
without a viable ability to market a product, the incentive to 
invest in oyster reef and crop expansion will be lost. And if 
we lose a generation of harvesters, farmers, and processors, we 
may never see a recovery of the oyster or oyster communities in 
this area.
    A few years ago, my oldest son graduated from Brigham Young 
University and was trying to decide if he was going to become 
the eighth generation in our family to continue in the oyster 
community. I told him of the great potential and future that 
our family business had and how, with good management and 
research and development, we could grow and continue to be 
successful. He is now the eighth generation of our family in 
the oyster community, where his younger brother, who recently 
graduated from the University of Utah, will be joining him this 
September.
    We must continue to do the necessary research and 
development, with its associated failures and successes, with 
the academic community and the oyster community to once again 
help it to thrive. Raul Armesto said, ``The world isn't 
interested in the storms you encountered, but whether or not 
you brought in the ship.'' This industry, this community is one 
ship worth bringing in.
    Let me once again speak of things that are happening in the 
Gulf of Mexico. The oyster community has supported at Louisiana 
State University the development of a small hatchery in Grand 
Isle, Louisiana. My father, my brother, and my nephew are 
working on a project with the hatchery that they believe may 
double our company's oyster production in 3 to 5 years. That 
means we may harvest an additional 45 to 75 million individual 
oysters annually.
    Henry Ford once said, ``You can do anything if you have 
enthusiasm. Enthusiasm is the yeast that makes your hopes rise 
to the stars. With it, there is accomplishment. Without it, 
there are only alibis.'' We must foster the enthusiasm that 
exists to resolve the challenges that are before us.
    We do not support the petitioner's request to have eastern 
oysters listed under the Endangered Species Act as either 
threatened or endangered. We do support the appropriate changes 
to the Act that will not allow successful and viable resources 
to be subjected to this type of review and continued funding 
for research and development in this area.
    [The prepared statement of Mr. Voisin follows:]

               Statement of Michael C. Voisin, Chairman, 
                      Louisiana Oyster Task Force

    Chairman Pombo and Members of the Committee, I want to thank you 
for this opportunity to testify before you on the Status of the Eastern 
Oyster (Crassostrea virginica) and the Petition to List it under the 
Endangered Species act.
    I am Mike Voisin Chairman of the Louisiana Oyster Task Force a 
governmental agency within the Louisiana Department of Wildlife and 
Fisheries composed of Oyster Industry Association and Governmental 
Agency appointees. The Louisiana Oyster Task Force was created by the 
1988 Louisiana Legislature with the directive to strengthen the oyster 
industry. I am currently President of the Molluscan Shellfish Committee 
(a part of the National Fisheries Institute (NFI)) and a board member 
of the Gulf Oyster Industry Council (GOIC) and the Louisiana Oyster 
Dealers and Growers Association (LODGA).
    I am a seventh (7th) generation oyster farmer and processor. Our 
farm comprises approximately 14,000 acres of water bottoms in Coastal 
Louisiana which produces between 15 million to 25 million pounds of in-
shell oysters annually. This represents 45 million to 75 million 
individual oysters that we harvest on an annual basis. Since our 
oysters take anywhere from 2 to 4 years to grow to harvest size, this 
means that at any one time our farm may have anywhere from 135 million 
to 225 million individual oysters on it.
    The State of Louisiana produces approximately 250 million in shell 
pounds of oysters annually or 750 million individual oysters with a 
similar growth cycle of 2 to 4 years to market size, this means that at 
any one time there are approximately 2.25 billion oysters in our oyster 
farms and public producing areas. The Gulf States combined with 
Louisiana produce annually approximately 500 million in shell pounds of 
oysters, totaling approximately 1.5 billion individual oysters and 
maintaining approximately 4.5 billion individual oysters in Gulf 
producing areas at any one time.
    So one might ask why anyone would consider Eastern Oysters for a 
listing on the Endangered Species Act. That is a question that I ask 
myself.
    Even in areas along the Eastern United States seaboard where in 
some areas oyster diseases have had an impact on harvestable 
populations there are hundreds of millions of individual oysters in 
their coastal areas.
    Could the answer to my question be that someone is trying to impact 
the livelihood of thousands for a personal political agenda by using 
the Endangered Species Act? If this is the case, which it appears to 
be, then maybe Congress needs to look at significant changes to this 
act!
    The petition to list the Eastern Oyster as Endangered or Threatened 
Under the Endangered Species Act is targeted at concerns in the 
Chesapeake Bay. For a number of years Congress has funded oyster 
research in this area and some successes have occurred! Thomas 
Jefferson our third President said, ``Nothing can stop the man with the 
right mental attitude from achieving his goal; nothing on earth can 
help the man with the wrong mental attitude.'' I believe that Congress 
has had the right mental attitude in funding this research and should 
continue to do so. I believe that the petitioner may have the wrong 
mental attitude relating to this concern.
    We must continue to press forward on resolving whatever concerns 
are presented to the oyster community. As Babe Ruth said, ``We must 
never let the fear of striking out get in your way.''
    Thomas J. Watson a successful businessman said, ``Would you like me 
to give you a formula for success? It's quite simple, really. Double 
your rate of failure...You're thinking of failure as the enemy of 
success. But it isn't at all...You can be discouraged by failure--or 
you can learn from it. So go ahead and make mistakes. Make all you can. 
Because, remember that's where you'll find success.'' I believe that we 
are getting closer to narrowing in on significant success in the 
Chesapeake's oyster challenge. But without a viable ability to market a 
product the incentive to invest in oyster reef and crop expansion will 
be lost. And if we lose a generation of harvesters, farmers and 
processors we may never see a recovery of the oyster or oyster 
communities in this area.
    A few years ago my oldest son graduated from Brigham Young 
University and was trying to decide if he was going to become the 
eighth generation in our family to continue in the oyster community. I 
told him of the great potential and future that our family business had 
and how with good management and research and development we could grow 
and continue to be successful. He is now the eighth generation of our 
family in the oyster community, where his younger brother who just 
graduated from the University of Utah will be joining him this 
September. We must continue to do the necessary research and 
development (with it's associated failures and successes) with academia 
and the oyster community to once again help it thrive.
    Raul Armesto said, ``The world isn't interested in the storms you 
encountered, but whether or not you brought in the ship.'' This is one 
ship worth bringing in!
    Let me once again speak of things that are happening in the Gulf of 
Mexico. The oyster community has supported at Louisiana State 
University the development of a small oyster hatchery in Grand Isle, 
Louisiana. My Father, Brother and Nephew are working on a project with 
the hatchery that they believe may double our company's oyster 
production in 3 to 5 years! That means we may harvest an additional 45 
to 75 million individual oysters annually.
    Henry Ford once said, ``You can do anything with if you have 
enthusiasm. Enthusiasm is the yeast that makes your hopes rise to the 
stars. With it, there is accomplishment. Without it, there are only 
alibis.'' We must foster the enthusiasm that exists to resolve the 
challenges that are before us!
    We do not support the petitioners request to have Eastern Oysters 
listed under the Endangered Species Act as either threatened or 
endangered! We do support appropriate changes to the Endangered Species 
Act that will not allow successful and viable resources to be subjected 
to this type of review and continued funding for research and 
development in this area.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Gergela?

             STATEMENT OF JOSEPH M. GERGELA, III, 
          EXECUTIVE DIRECTOR, LONG ISLAND FARM BUREAU

    Mr. Gergela. Good afternoon. My name is Joe Gergela. I am 
Executive Director of Long Island Farm Bureau, a 7,200-member 
general farm organization of farmers, fishermen, landscape 
contractors, and citizens interested in a rural quality of 
life. In fact, we have several hundred members that are 
commercial baymen, lobstermen, fishermen, and aquaculturalists.
    I personally grew up on a 200-acre potato and vegetable 
farm on North Fork of Long Island, and I farmed with my dad 
until 1987. I have been executive director of Long Island Farm 
Bureau for 17 years.
    Thank you for allowing me to present testimony regarding 
the petition to list the eastern oyster as endangered or 
threatened under the Endangered Species Act. Where I come from, 
farmers, baymen, and fishermen are the endangered species. I am 
not a scientist, nor pretend to be one, nor an expert on the 
science of the petition. I am, however, the advocate for 
commercial fishing and aquaculturalists on Long Island and in 
New York State.
    Long Island Farm Bureau, as an organization, joins our 
State Senate delegation in strong opposition to the listing of 
the eastern oyster as threatened or endangered as it relates to 
the Endangered Species Act. Since the eastern oyster is an 
invertebrate, the entire species would have to be listed under 
the Act if it is endangered or threatened. We don't think that 
that is the case.
    After reading the petition document by W. Dieter Busch, it 
appears to us at Long Island Farm Bureau and my members that 
while the petitioner raises legitimate concerns for the future 
of the Chesapeake Bay shellfish industry, this petition is a 
back-door effort and an inappropriate use of the Endangered 
Species Act to prevent the Asian oyster from being introduced 
into the Chesapeake ecosystem. We believe stand-alone 
legislation by the Congress to address that issue would be a 
far better way to prevent a possible invasive species from 
being introduced into the ecosystem.
    It appears that the petitioner is using the ESA to usurp 
local decision-makers by asking the Federal Government to weigh 
in by using the act. That, in itself, is a dangerous precedent 
as this could have serious and detrimental effects on the 
oyster producing industry in New York State and many other 
States--Louisiana, Connecticut, Rhode Island, New Jersey, 
Delaware, and on and on.
    The economic impact of the ESA ruling at this point is 
impossible for us to anticipate. The ESA ruling could take many 
different forms, with varying impacts upon the individuals and 
companies and locations of operations that engage in the wild 
harvest or established aquacultural businesses. In the absence 
of specific regulations, which would be imposed upon listing, 
Long Island Farm Bureau would speculate that the effect could 
range from minimal or to a total elimination of a $12 million a 
year industry in New York State.
    Regulations from a listing may preclude aquacultural 
shellfish farming, which has seen a positive trend in New York 
State. In 1990, there were 18 licensed permit holders for 
oysters, and as of today, there are over 50. And that is 
according to our State Department of Conservation Bureau of 
Shellfisheries located on Long Island.
    The shellfish industry on Long Island, together with our 
elected officials, have worked together through innovation and 
science to raise the production totals of 9,000 bushels in 1999 
to nearly 50,000 bushels in 2004 dockside landings. It is 
reasonable to anticipate that regulations would likely result 
in across-the-board increases in costs of operation.
    If there are no other species to farm as an alternative, 
investment would stop. Capital would likely be withdrawn. And 
when facilities decline, they are likely to be shut down rather 
than be repaired or improved. The impact would be devastating 
to the industry, affecting businesses, families, and the 
economy of our State.
    In the essence of time, I have a lot of historical 
information in the testimony if you care to read it later on. 
In 1855, the first planting took place in New York waters. And 
as early as 1850, the town of Brookhaven in Suffolk granted the 
first leases for aquaculture for oyster cultivation.
    I am going to change course a little bit and mention a 
couple of things which we are doing to address the resource 
concerns in New York. In 1983, we had our first aquaculture 
plan, and at that time, there was conclusion that we could 
continue to have a viable, healthy, and vibrant industry.
    Last year, our State legislature in 2004 adopted a change 
in the State statute to allow in Suffolk County the creation of 
a program for the leasing of bay bottoms in the Great Peconic 
Bay estuary system, and we are working on rule-making right now 
to allow that to happen. There is a huge interest in small 
companies that are bringing back oyster production into the 
east end of Long Island, into the Great Peconic Bay systems.
    Also, 1992, the Peconic Bay estuary was formally adopted 
into the national estuary program. We have been, in fact, 
participating in programs to reduce the impacts of agricultural 
nutrient and pesticide loadings into the estuary program.
    In addition to that, I want to just mention a couple of 
things about real-life impact on some of our members. Frank 
Flowers and Sons, one of the first in the country to be a 
family that has an oyster hatchery, started in 1887. They 
employ 50 people. They have 50 million oysters and 50 million 
clams in their waters off of Oyster Bay, Long Island.
    One of my board members, Karen Rivara, her company is 
fairly new in the last 10 years. They grow 4 million oysters 
and 500,000 hard clams, and they expect that their business 
will be growing 20 to 40 percent a year.
    One last one is K&B Seafood, and Mr. Kehoe, one of the 
proprietors is here. It is a $5 million a year business that 
sells oysters. In addition to them, there are 60 companies on 
Long Island alone and 190 that make their living in New York 
State selling oysters.
    In conclusion, in addition to the economic impacts, if New 
York shellfish farmers are not permitted to grow the eastern 
oyster due to this listing, there will be less oysters in the 
environment, creating less habitat, spawning less offspring, 
filtering less water, and removing less nitrogen.
    Thank you for the opportunity to comment.
    [The statement of Mr. Gergela follows:]

       Statement of Joseph M. Gergela, III, Executive Director, 
                        Long Island Farm Bureau

    Good afternoon, I am Joseph Gergela, Executive Director of Long 
Island Farm Bureau, and a 7,200-member general farm organization of 
farmers, fishermen, landscape contractors and citizens interested in a 
rural quality of life. In fact, Long Island Farm Bureau has several 
hundred members that are commercial baymen, lobstermen, fishermen and 
aquaculturalists. Long Island Farm Bureau is part of the federation of 
counties that comprise New York Farm Bureau and at the national level 
the American Farm Bureau Federation. I personally grew up on a 200-acre 
potato/vegetable farm on Long Island's North Fork and actually farmed 
with my father until 1987. I have served as Executive Director of Long 
Island Farm Bureau for last 17 years.
    Thank you for allowing me to present testimony regarding the 
Petition to List the Eastern Oyster as Endangered or Threatened under 
the Endangered Species Act.
    I am not a scientist, nor pretend to be one, or an expert on the 
science of the petition. I am, however, the advocate for commercial 
fishing and aquaculturalists on Long Island and in New York State. Long 
Island Farm Bureau as an organization joins our New York State Senate 
(Attachment #1) in strong opposition to the listing of the Eastern 
Oyster as threatened or endangered as it relates to the Endangered 
Species Act.
    Under the ESA, a listing determination can address a species, sub-
species or a distinct population segment (DPS) of a vertebrate species 
(16 U.S.C.1532 (16)). Since the Eastern Oyster is an invertebrate, the 
entire species would have to be listed under the ESA (or sub-species if 
information indicates that there are sub-species of the Eastern Oyster) 
if it is endangered or threatened. A species is endangered if it is in 
danger of extinction throughout all or a significant portion of its 
range. (ESA section 3 (6)). It is threatened if it is likely to become 
endangered within the foreseeable future throughout all or a 
significant portion of its ranges (ESA section 3 (19)).
    Under section 4(a)(1) of the ESA, a species shall be listed if it 
is determined to be threatened or endangered as a result of any one of 
the following factors:
    1.  present or threatened destruction modification or curtailment 
of habitat or range
    2.  over utilization for commercial, recreational, scientific or 
educational purposes
    3.  disease or predation
    4.  inadequacy of existing regulatory mechanisms or
    5.  other natural or manmade factors affecting its continued 
existence.
    In addition, Listing determinations are made solely on the basis of 
the best scientific and commercial data available, after conducting a 
review of the status of the species and taking into account efforts 
made by any state or foreign nation to protect such species. This is 
the basis by which you are holding this hearing today.
    After reading the Petition document by W. Dieter H. Busch it 
appears to Long Island Farm Bureau and its members that while the 
Petitioner raises legitimate concerns of the future of the Chesapeake 
Bay shellfish industry, this Petition is a back door effort, and an 
inappropriate use of the ESA to prevent the Asian Oyster from being 
introduced into the Chesapeake ecosystem. We believe stand alone 
legislation by the Congress to address that issue would be a far better 
way to prevent a possible ``invasive'' species from being introduced 
into the ecosystem. It appears that the Petitioner is using the ESA to 
usurp local decision makers by asking the Federal Government to weigh 
in by using the ESA.
    That in itself is a dangerous precedent as this could have serious 
and detrimental affects on the Oyster producing industry in New York 
State and other states such as Louisiana, Connecticut, Rhode Island, 
New Jersey, Delaware and so on as the ESA requirements could make the 
Eastern Oyster endangered throughout the entire population range 
without justification or consideration of the variation of the 5 
criteria of ESA.
    The Economic impact of the ESA ruling at this point is impossible 
to anticipate. The ESA ruling could take many different forms with 
varying impacts upon the individuals and companies and locations of 
operations that engage in wild harvest or established aquacultural 
businesses. In the absence of specific regulations which would be 
imposed upon listing, LIFB could speculate that the effect could range 
from minimal or to total elimination of a 12 million dollar a year 
industry in New York State. Regulations from an ESA listing may 
preclude aquacultural shellfish farming which has seen a positive trend 
here in New York State. In 1990 there were 18 licensed permit holders 
of oysters, as of today there are over 50 according to New York State 
Department of Conservation Bureau of Shellfisheries located on Long 
Island. The shellfish industry on Long Island together with our elected 
officials have worked together through innovation and science to raise 
the production totals of 9,020 bushels in 1999 to nearly 50,000 bushels 
in 2004 dockside landings (Attachment #2). It is reasonable to 
anticipate that regulations would likely result in across the board 
increases in costs of operation. If there are no other species to farm 
as an alternative, investment would stop. Capital would likely be 
withdrawn and when facilities decline, they are likely to be shut down 
rather than be repaired or improved. The impact would be devastating to 
the industry affecting businesses, families and the economy of our 
state.
    From a historical perspective, oystering has been prevalent as a 
way of life on Long Island for centuries. In the 1640's when the first 
English-speaking settlers arrived in Orient, they called the tiny 
village on the tip of the North Fork, Oysterponds. One only needs to 
look at the historical data to realize that there were many peaks and 
valleys of dockside landings for hundreds of years. Pollution from 
point and non-point sources, storm water runoff, pathogens, disease, 
predators, over harvesting and the whims of Mother Nature contributed 
to the rise and fall and rise again of the oyster industry. Companies 
such as Frank M. Flowers and Sons have been in the business since 1887 
by developing new technology and adapting to changes in the mariculture 
process and estuary environment. Mariculture and Aquaculture is being 
used today to assist in production of high quality seafood. The most 
dramatic influence that farming the sea has had so far in New York 
State has been in the oyster business. It has basically saved this 
historically significant industry. Forty percent of the oysters eaten 
today are the product of the mariculture industry. New York State has 
been a national leader in development of mariculture. As early as 1784 
officials in Oyster Bay realized that the oyster was in need of 
protection from over harvesting and was the first community to pass an 
ordinance concerning shellfish. That particular law prohibited all but 
local baymen from taking oysters from Oyster Bay. In fact, Oyster Bay 
received its name in 1639 from a Dutch sea captain who was so impressed 
by the abundance of tasty oysters in this area. When he arrived, he 
discovered huge mounds of oyster shells, obviously the result of many 
years of feasting by Indian tribes. The shells provided Oyster Bay with 
one of its earliest industries, the production of lime by grinding of 
the oyster shells. There was no full-scale business relating to the 
oyster during Colonial times, as oystering during this period was part 
of the general search for food and was conducted on an individual 
gleaning basis.
    The real Long Island industry got started in the Great South Bay in 
the early 19th century and remained an important enterprise for many 
years. As the taste for the nutritious mollusk grew in demand, the 
local industry became a national and international large-scale 
industry. As the business flourished more and more, baymen harvested 
the vast natural beds in the Great South Bay around a community known 
as Blue Point. Because of the ``Blue Point Oyster's'' compact size and 
hardiness, it was shipped to San Francisco and London. By 1823 the 
quantities and quality of oysters began to decline. With this problem 
occurring, the south shore baymen sought new areas to harvest oysters 
and found new beds along the north shore of Long Island. From Queens to 
Port Jefferson the bivalve was plentiful. Soon, these areas were also 
over harvested and thoughts and energies turned to planting the fished 
out beds with fresh seed oysters from the still bountiful Chesapeake 
area. In 1855 the first planting took place in New York waters. In 
planting the seed oysters, the baymen introduced an extremely important 
dimension to the oyster industry; that planting and harvesting was 
feasible and not entirely dependant on natural production. As early as 
1850 the town of Brookhaven in Suffolk County granted the first leases 
of town waters for oyster cultivation and soon after other towns 
granted leases as well. The naturally productive areas of Long Island's 
bays were not leased and left open for natural harvest. In 1881 
Brookhaven began one of the first public mariculture projects in town 
beds in response to a declining natural harvest by seeding open waters 
in its jurisdiction. In 1886 Eugene Blackford of the New York State 
Forest, Fish and Game Commission wrote ``the oyster industry is rapidly 
passing from the hands of the fisherman to those of the planter and 
oyster culturalist''.
    Oystering equipment also changed and in 1874 the first steam driven 
dredge was used. The invention would do the work equivalent to 300 men 
using tongs. Later the suction dredge was developed and could do the 
work of 4 regular dredges or 1200 oystermen.
    Attention to the east end of Long Island to the waters of Gardiner, 
Great Peconic and Little Peconic Bays were found to be conducive to 
maturation of seed oysters around 1890. Up to that time, fishing and 
scalloping were the premier industries in those waters. By 1900 the 
East End waters became an important maturation area as the industry 
moved west to east from New York City. Staten Island, Flushing Bay, 
parts of the Hudson and East River were areas of production of oysters. 
By 1927 and since that time, no oystering has been done when New York 
State condemned the waters around New York City for shellfish 
harvesting. The early years of oystering on Long Island were from 1855 
to 1916, the time mariculture techniques were applied. By the 1880's 
New York State had become the center of the northern oyster industry 
and led the country in overseas and transcontinental shipments of 
oysters.
    Oyster production went from its high in 1900 to its low in the 
1960's. At the peak there were 150 companies working in the Long Island 
Sound with hundreds of boats and thousands of men. By the 1960's the 
number of boats and companies were down to a dozen. Part of the 
downfall of the industry was attributed to increased pollution that 
came from commercial and residential development around the natural 
oyster beds that diverted river and stream flows, which resulted in a 
marked change of salinity. These problems were accompanied by over 
harvesting, oyster disease, and major storms that destroyed the major 
beds. In addition, there was an increase in predators such as starfish. 
All of these factors resulted in almost a total wipe out of the natural 
oyster in Long Island Sound and Great South Bay.
    From that point in time in the 1960's, Frank M. Flowers and Sons 
and other companies and also with help from New York State, New York 
Sea Grant Institute and Cornell University efforts were undertaken to 
save the industry by developing hatcheries and new technologies for 
oyster production. In 1983 the industry got a big boost when the State 
of New York authorized New York Sea Grant of State University of New 
York and Cornell University College of Agriculture and Life Sciences to 
undertake a study and develop a statewide aquaculture plan. In 1983 the 
first draft was published and later concluded that aquaculture in New 
York could continue to be a viable healthy and vibrant industry.
    In 2004, New York State passed new legislation: Laws of New York 
2004 Chapter 425 (Attachment #3) ``An Act to amend the environmental 
Conservation Law in relation to ceding underwater lands at Gardiners 
and Peconic Bays to Suffolk County for the purpose of establishing an 
aquaculture management program for the cultivation of shellfish and to 
repeal Chapter 990 of the law of 1969 related to same''.
    In 2002, Suffolk County Resolution 1229-2002 directed the Suffolk 
County Department of Planning, the Division of Environmental Quality in 
the Department of Health Services, and County Department of Public 
Works to prepare a plan for the conduct of a survey of underwater lands 
in Gardiners and Peconic Bays for the purpose of cultivation of 
shellfish. (Attached #4) This is a copy of the policy guidance document 
on shellfish cultivation in Peconic and Gardiners Bays conducted by the 
Suffolk County Department of Planning. While the county is only 
beginning to promulgate regulations for such a leasing program, an ESA 
listing for the eastern oyster will most likely make such a program 
moot, as most of today's shellfish farmers are growing the eastern 
oyster. It is expected that any expansion of mariculture in New York 
will also primarily involve the eastern oyster, the only oyster allowed 
by law to be cultivated in New York State.
    In 1992, the Peconic Bay Estuary system was formally adopted into 
the National Estuary Program. Comprehensive Management Plan was adopted 
in 2002 after many years of the various government agencies at all 
levels, as well as stakeholder and citizen groups, to prioritize the 
actions and programs needed to protect and remediate environmental and 
economic resources of the ecosystem. In fact, as part of the CCMP, Long 
Island Farm Bureau has been working with the PEP to develop and 
implement a nutrient and pesticide management plan for the agricultural 
industry modeled upon the New York State Agricultural Environmental 
Management Program (AEM). Long Island Farm Bureau is currently working 
with the New York State Legislature on proposed legislation to further 
implement recommendations from the CCMP. In the latest version of the 
PEP newsletter, front-page article, it states, ``Compared to other 
estuaries nationwide the Peconic Estuary is a relatively healthy 
system.'' (Attachment 5)
    The point being that New York State has been and is currently 
addressing the issues facing the ecosystem from all the affects of the 
societal impacts upon the estuary.
    While we could continue to dwell on the past, it is time to go 
forward with the fact that with all of the challenges, there continues 
to be an opportunity to revitalize and expand the oyster industry on 
Long Island and in New York.
    For your information I have chosen 3 Long Island Farm Bureau 
members to profile their respective companies to demonstrate the real 
life human impact upon our members if the Eastern Oyster listing were 
to happen.
    Frank M. Flower and Sons was established in 1887 by the Flower 
family. The company flourished until the late 1950's when oysters 
seriously declined. At that time. H. Butler Flower had the foresight to 
build one of the first major oyster hatcheries. As a result of oyster 
and clam aquaculture, Frank M. Flower remains as the last of the 
traditional shellfish companies in New York State.
    This multi-million operation employs 50 local individuals. Six 
vessels ranging from 50 to 90 feet are used to harvest oysters and 
clams from 1800 acres of underwater lands leased from the Town of 
Oyster Bay. Some of these vessels date back to the early 1900's. The 
underwater lands are stocked with 50 million oysters and 50 million 
clams from the 5000 sq. ft. company hatchery every year. Frank M. 
Flower is also the major supplier of shellfish seed to aquaculturists 
and Town shellfish programs in New York.
    Aeros Cultured Oyster Company Inc. was incorporated in New York in 
1996. It is owned by Karen Rivara* and James Markow. They grow oysters, 
hard clams and bay scallops. The majority of their production consists 
of Eastern Oysters. It took them five years to work out a cultivation 
regime that would protect their crop from predators and allow them to 
manage around disease pressure.
    They have a shellfish hatchery, three nursery system sites, and 
underwater cultivation grounds totaling 350 acres (250+ in New York.). 
In 2000 they founded the Noank Aquaculture Cooperative, which now has 
14 members in New York and Connecticut. Since 2001, Aeros has increased 
their plantings of oysters by no less than 20% annually. This season 
they will plant 4 million oysters and 500,000 hard clams. They will 
donate several hundred thousand shellfish seed to town sponsored 
cultivation programs in New York and Connecticut. Their hatchery sells 
seed to other growers. The total hatchery production will be 9 million 
oysters, 600,000 hard clams and 400,000 bay scallops. Next year they 
expect this demand to increase by 20-40% for oysters. They also work 
with community groups to restore shellfish, mainly oysters, in local 
estuaries.
    Their company has grown to earn income for 2 families and to employ 
4 part time workers. Their gross sales for 2005 will approach $500,000. 
The economic multiplier for shellfish aquaculture is 2.5, although 
multipliers as high as 4.0 have been used for some operations.
[GRAPHIC] [TIFF OMITTED] T2446.002


    *Karen Rivara currently is on Long Island Farm Bureau's Board of 
Directors and is its Secretary.
    K&B Seafood Inc. started in 1992 by Thomas J. Kehoe and Roger S. 
Boccio is located in East Northport, New York. Tom Kehoe serves as 
President and Roger Boccio as Treasurer.
    K&B Seafood has annual sales of $5,000,000. The company employs 14 
individuals. K&B Seafood currently ships ``Eastern Oysters'' all across 
the United States, Canada, and overseas to Hong Kong and Japan. They 
are currently developing new markets in other countries.
    In addition to K&B Seafood, there are more than 60 companies 
engaged in the interstate sale of Eastern Oysters on Long Island, and a 
total of 191 companies across New York State. In addition, there are 
over 50 individuals and companies actively growing Eastern Oysters on 
Long Island. This does not include the thousands of restaurants, retail 
fish markets, and supermarkets that trade oysters daily. Thousands of 
jobs that would be lost due to the frivolous listing of our oyster as 
endangered.
    In addition to the economic impacts, if New York shellfish farmers 
are not permitted to grow the eastern oyster due to an ESA listing, 
there will be less oysters in the environment, creating less habitat, 
spawning less offspring, filtering less water, and removing less 
nitrogen.
    Thank you for the opportunity to speak today on behalf of our 
industry. I would be happy to answer any questions.
    NOTE: Attachments to Mr. Gergela's statement have been retained in 
the Committee's official files.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Bean?

            STATEMENT OF MICHAEL J. BEAN, ATTORNEY, 
                     ENVIRONMENTAL DEFENSE

    Mr. Bean. Good afternoon, Chairman Pombo. It is a pleasure 
to be here. Thank you, members of the Committee.
    I am Michael Bean. I am with Environmental Defense. I am 
the head of its wildlife program and the co-director of the 
Center for Conservation Incentives.
    I am not here to take a position on the petition, although 
I would point out I am not aware that the petition has any 
support from any environmental organization. But I do want to 
draw your attention to a couple of policy issues that I think 
the petition raises because I know of the Chairman's broader 
interest in how the Endangered Species Act functions.
    I have two important points to make, and the first has to 
do with the flexibility under the Act or, rather, the lack of 
flexibility under the Act to deal with invertebrates as the Act 
deals with vertebrates.
    In Mr. Gilchrest's State of Maryland, the brown pelican has 
recovered and is no longer on the endangered species list. But 
in your State of California, Mr. Pombo, the brown pelican 
remains on the endangered species list. And that is because the 
Endangered Species Act allows for vertebrates the differential 
protection of different populations. So the eastern population 
or recovered population is no longer protected by the act, but 
the western population, still endangered, keeps that 
protection.
    For invertebrates, the Act does not allow that same 
flexibility. For invertebrates, it is an all or nothing choice. 
You either list the species everywhere it occurs, or you list 
it nowhere at all.21And as the gentlemen at this table have 
indicated, the health of this particular organism appears to be 
quite different in the Gulf of Mexico, for example, than in 
Chesapeake Bay. And yet the flexibility to deal with those 
different situations through listing it in one place and not in 
another does not exist currently in the act.
    I am aware that Mr. Jindal, I believe, has introduced a 
bill that would allow for this species the listing according to 
distinct population segments for the oyster, just as the law 
currently does for vertebrates.
    The law, I must say, was not always that way. When it was 
passed in 1973, it allowed the same flexibility for 
invertebrates as it allowed for vertebrates. Congress changed 
that in 1978 at the behest of the House to reduce or eliminate 
that flexibility for invertebrates. So that is the source of 
the problem.
    The second point I want to make has to do with the 
potential consequences of a listing. I think here what I want 
to do is to underscore the fact that under the Endangered 
Species Act, those consequences could be quite different, 
depending upon whether it is listed as endangered or 
threatened.
    If, for example, this species--or for that matter, any 
species--were listed as a threatened species, the Act gives the 
Secretary of Commerce in this case, or interior in the case of 
other species, the authority and the discretion to tailor the 
regulations to suit the needs of the species in particular 
places.
    And so, for example, at least in theory, if the protections 
of the Act were really needed in Chesapeake Bay, they could be 
applied there. And yet the requirements or restrictions 
elsewhere might be substantially less or none at all. That is 
an important point to keep in mind.
    In addition, of course, to the very fundamental point that 
this is, at this point, a petition on which the National Marine 
Fisheries Service has made a preliminary determination that the 
petition presents substantial evidence. There is a multi-month 
process still to be resolved as to whether or not they will act 
on the petition in a way in which the petitioner seeks. I 
rather doubt that would be the case, but that process is 
ongoing.
    But because I think those two points are important points 
to underscore about the lack of flexibility to deal with 
invertebrates in the way in which the law allows it to be done 
for vertebrates and the potential flexibility with the 
threatened designation to tailor regulations, to tailor 
restrictions so that they are restrictive where they need to be 
and where they are not at all restrictive where they need not 
be--that flexibility is in the Act with respect to a threatened 
designation.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Bean follows:]

          Statement of Michael J. Bean, Environmental Defense

    Environmental Defense appreciates the opportunity to present this 
testimony to the Resources Committee. I am Michael J. Bean, co-director 
of Environmental Defense's Center for Conservation Incentives, which 
promotes the use of incentive-based strategies to achieve a variety of 
conservation goals, including the conservation of endangered species. 
For nearly thirty years, I have worked to further the conservation of 
endangered species throughout the country. My colleagues and I have 
worked cooperatively with farmers in California, ranchers in Texas and 
Utah, forest landowners in North and South Carolina, and other 
landowners elsewhere in an effort to find workable and effective means 
of conserving imperiled species. In addition to my duties at 
Environmental Defense, I have served on the Board on Environmental 
Studies and Toxicology of the National Research Council of the National 
Academy of Sciences and on the Board of Directors of the Environmental 
Law Institute. Very recently, I have joined the Board of Directors of 
Resources for the Future. My book, The Evolution of National Wildlife 
Law, is a leading text on the subject of wildlife conservation law in 
the United States.
    The petition to list the eastern oyster as an endangered or 
threatened species under the Endangered Species Act highlights a number 
of important conservation policy issues. Environmental Defense has not 
taken a position on the petition itself. The petition's scientific 
merits--and the law is clear that a decision on the action the petition 
requests must be based on scientific evidence--can be better addressed 
by other witnesses. What I can address in this testimony are some of 
those important policy issues that the petition raises. In doing so, I 
hope to illuminate some of the options that exist, and to dispel some 
of the misperceptions that may also exist.
    The first thing to note is that since 1978, Congress has allowed 
less flexibility under the Endangered Species Act with respect to 
invertebrate wildlife than with respect to vertebrate wildlife. That 
is, for invertebrates that may be in conservation trouble, the law 
allows only two choices: list them everywhere or list them nowhere. For 
vertebrate wildlife, on the other hand, the law allows a third choice: 
list them only where they are at risk of extinction, while leaving them 
unlisted everywhere else. There are a number of examples in which the 
administrators of the Act have done just that. The bog turtle, for 
example, is listed in the Northeast, but unlisted in the southern 
portion of its range. The gopher tortoise is listed in the western 
portion of its range along the Gulf coast, and unlisted in the eastern 
portion of its range. The brown pelican is listed on the Pacific coast, 
but unlisted on the Atlantic coast. This flexibility makes it possible 
to focus both the resources and the regulatory requirements of the 
Endangered Species Act where they are most needed, and avoids the 
unnecessary imposition of such requirements where they are not.
    For invertebrates, as I have noted, this same flexibility no longer 
exists. But it once did. When the Act was originally passed, Congress 
drew no distinction between vertebrates and invertebrates. Both could 
be listed at the species, subspecies, or population level. In the 1978 
amendments to the Act, however, and at the behest of the House of 
Representatives, Congress reduced that flexibility, taking away the 
authority to list invertebrates at the population level. The 
legislative history for this action sheds little light on its 
rationale, but at least two possibilities seem likely. The first is 
that some in the House may have simply thought that invertebrates were 
less important that vertebrates. That view, though not uncommon, is 
seriously misinformed. Many invertebrates have exceptional economic as 
well as ecological importance. The most valuable commercial fishery in 
the United States, for example, is not directed at a fish, but rather 
at shrimp, which are invertebrates. Oysters are of obvious value 
economically, and are also of considerable ecological value because of 
their considerable role of filtering water. Sadly, both the economic 
and ecological values of oysters have been greatly diminished as a 
result of the failure of our land use, water pollution, and fishery 
management laws to maintain this enormous natural bounty. If one looks 
at a map of coastal communities along the East Coast, one sees places 
with names like Bivalve, New Jersey, Oyster, Virginia, and Shelltown, 
Maryland. Those names are testament to the importance that the once-
rich natural bounty of oysters had for once-thriving communities. Most 
of those communities are thriving no more: the price of our inability 
to properly manage and sustain a once-abundant invertebrate resource 
has been lost jobs, devastated communities, a nearly vanished way of 
life, and towns with names that now seem like quaint historical 
artifacts.
    Thus, providing less authority for, and less flexibility in, the 
protection of invertebrates than of vertebrates on the grounds that 
invertebrates are less important than vertebrates is a misguided 
policy. Another possible justification for the different treatment of 
vertebrates and invertebrates stems from the fact that invertebrates 
are far more numerous than vertebrates. Because invertebrate species 
greatly outnumber vertebrate species, the authority to list and protect 
distinct population segments of invertebrates might impose upon the 
Fish and Wildlife Service and NOAA Fisheries obligations that they lack 
the resources to fulfill. This is a legitimate concern, at least at 
current levels of funding for the endangered species program. The 
annual core budget for the Fish and Wildlife's Service's administration 
of the Endangered Species Act is almost exactly equal to the projected 
cost of building one mile of the Intercounty Connector highway in 
nearby Maryland. Thus, if Congress is only willing to give the Fish and 
Wildlife Service each year the equivalent of one highway mile's worth 
of funding with which to try to conserve some 1,264 species in 50 
states and several territories, there may be no practical alternative 
to the current all or nothing options for the listing of invertebrate 
species.
    The second matter I wish to address is what the regulatory 
consequences of listing the eastern oyster would be. It is on this 
topic that I think there may be some misunderstanding. The concern has 
been expressed that the listing of the eastern oyster would result in 
the imposition of highly restrictive, uniform federal rules throughout 
the range of the oyster. In fact, this need not be the case, at least 
if the species were listed as threatened rather than endangered. Under 
a threatened designation, it would be possible to have one set of rules 
in areas where oysters are most acutely imperiled--Chesapeake Bay, for 
example--and entirely different rules in other areas. Indeed, in the 
latter areas, existing state rules could continue in effect, at least 
if NOAA Fisheries concluded that it was neither necessary nor advisable 
for the conservation of the oyster to promulgate different rules. That 
is because under section 4(d) of the Endangered Species Act, NOAA 
Fisheries would have the authority, in the event that it listed the 
oyster as a threatened fishery, to fashion such rules regarding taking 
and trade as it deemed necessary and advisable for the conservation of 
the species, including having no such restrictions at all in some 
areas.
    There is one qualification to the foregoing statement. A threatened 
designation would not eliminate the requirement that federal actions 
that affect listed oysters would have to be reviewed pursuant to the 
consultation procedures of Section 7 of the Endangered Species Act. 
Thus, coastal dredging projects, federally funded expansions of coastal 
sewage treatment facilities, and other actions with similar potential 
to adversely affect oysters would receive scrutiny for their impacts on 
oysters, and might be required to reduce or offset any adverse impacts 
to the oyster resource. From the point of view of those undertaking 
such actions, that surely represents unwanted additional scrutiny and 
potentially additional cost for environmental mitigation. From the 
point of view of those trying to make their livelihoods by harvesting 
oysters, added scrutiny of those types of activities is probably 
welcome, inasmuch as it is activities such as those that have 
contributed greatly to the diminishment of our oyster resource and to 
the economic decline of the communities that once prospered from that 
resource.
                                 ______
                                 
    The Chairman. Thank you. I thank all the panel for their 
testimony.
    I am going to begin with Mr. Gilchrest and allow him to ask 
the first round of questions.
    Mr. Gilchrest. Thank you, Mr. Chairman.
    I would agree with Mr. Bean and also my colleague Mr. 
Jindal about the putting vertebrates and invertebrates under 
the same category as they were prior to the change in the late 
1970s, and I think that would be one of the things that as we 
go through the process of reforming the Endangered Species Act 
can be one of the improvements.
    Also I think it should be clear about, and I am glad Mr. 
Bean brought this up, that the difference between the 
flexibility of law concerning endangered or threatened. 
Certainly is one of those considerations that needs to be more 
clear and understood.
    I have a couple of questions for the panel, though. Could 
the gentleman from Long Island--actually, I guess there are two 
gentlemen from Long Island. Is Dr. Rheault? Dr. Rheault, are 
you from Long Island or Connecticut?
    Dr. Rheault. Rhode Island.
    Mr. Gilchrest. Rhode Island. But you represent the Long 
Island Sound?
    Dr. Rheault. Yes, sir. I represent growers from Maine to 
Florida.
    Mr. Gilchrest. It is an island, Rhode Island.
    [Laughter.]
    Mr. Gilchrest. I never realized that. Mr. Gergela and Dr. 
Rheault, Bob and Joe.
    [Laughter.]
    Mr. Gilchrest. Can you tell me the breakout between wild 
harvest and aquaculture of oysters in Long Island Sound?
    Mr. Gergela. There is some production in Long Island Sound. 
Very little is wild harvest. The majority of our industry is 
actually mariculture and through oyster farming.
    Because of all the water quality issues that you are facing 
in the Chesapeake, we have encountered that already in New York 
waters over a long period of time, and it decimated the 
industry. But because of perseverance, good science, 
commitment, our waters are cleaning up. There is commitment by 
our growers, and they are bringing it back.
    Mr. Gilchrest. I am sorry. Because I only have a limited 
time. Most of the harvest in Long Island Sound, you would both 
agree, is through aquaculture? Oyster farming?
    Dr. Rheault. That is correct through most of New England. 
Yes.
    Mr. Gilchrest. Mr. Cowart?
    Mr. Cowart. Yes, sir.
    Mr. Gilchrest. Can you give me a breakout in the Virginia 
waters of the Chesapeake Bay between wild harvest and 
aquaculture of oysters?
    Mr. Cowart. Representative Gilchrest, in Virginia, 
traditionally, the production was private. But in recent years, 
it has been probably half and half. As opposed to what happened 
in Maryland, as you well know, because that is a public 
industry, unlike Virginia. We have about 100,000 acres of 
private bottoms in Virginia.
    We have 240,000 acres of public held, survey bottoms that 
are held in public trust. But at the same time, traditionally, 
the production has been private more traditionally in numbers 
in Virginia than what has been public.
    Mr. Gilchrest. I see. A number of you have mentioned that 
this is a back-door way, the listing of virginica, to stop the 
introduction of this Asian oyster that has been discussed in 
Maryland and triploid use of it in the Virginia waters. I am 
going to say Joe and Mike again, can you tell us how you feel 
about the introduction of Asian oysters into the Chesapeake Bay 
via the Maryland plan? Are you in favor of that, opposed to 
that, or neutral to that?
    Mr. Gergela. I am not an expert in it. So I would defer to 
my colleagues that are far more expert. But in reading the 
petition and also meeting with growers and discussing the 
issue, they feel that that is a concern that the petitioner is 
trying to use the Endangered Species Act to stop another 
action.
    Mr. Gilchrest. Well, if we could put the petition aside for 
a moment and just say the petition never happened, is there any 
concern up in Long Island Sound about the introduction of Asian 
oysters to the Chesapeake Bay?
    Mr. Gergela. Yes, there is. And in fact, New York State law 
allows only the eastern oyster to be produced in New York 
waters. So we are very specific and concerned.
    As an example, the mussel--the zebra mussel that got into 
the St. Lawrence Seaway, now into the Great Lakes and some of 
the rivers, it became an invasive species, and that is the type 
of thing--not only that, but we have encountered that with 
other pest problems for agriculture.
    Mr. Gilchrest. Thank you. Dr. Bob, any comment on Asian 
oysters in the Chesapeake Bay?
    Dr. Rheault. As President of the East Coast Growers 
Association, I have members who are supporting it and opposed 
to it. As a grower from Rhode Island, we have come out strongly 
opposed. We fear that it has tremendous potential to come up 
the bay and displace the natural population.
    Mr. Gilchrest. All right. Thank you very much. My time has 
expired.
    The Chairman. Mr. Melancon?
    Mr. Melancon. Thank you, Mr. Chairman.
    Mike Voisin, please, if you would. Assuming that the mid-
Atlantic oyster can be listed or would be listed as an 
endangered species or endangered separately from the other sub-
species of oysters, is there any anticipated effect on oyster 
sales for the species not listed? Do you think that----
    Mr. Voisin. Yes. If the eastern oyster was listed, that 
would leave in this country the gigas oyster on the West Coast, 
which is the largest volume oyster, which is a Pacific oyster, 
other than the eastern oyster. I would expect an explosion in 
sales growth for the Pacific oyster from the Pacific 
Northwest--Oregon, California, and Washington. I would expect 
the stop of sale of the eastern oyster.
    Mr. Melancon. And what would happen with Louisiana's?
    Mr. Voisin. Well, Louisiana, the total economic impact of 
our industry is around $280 million a year. So that economic 
impact would close. And pending what would happen in 
relationship to the implementation of the act, we may have 
near-shore oil and gas development stop because of oysters 
being endangered species. We may have coastal restoration, 
which is a huge concern in our area, be halted in its footsteps 
because if you introduce fresh water, you might kill oysters.
    We might have sport fishing and the ability to use our 
waterways be halted at certain times when oyster larvae was in 
the water because it may kill--the propellers on recreational 
boats may kill oyster larvae. I don't know how far this would 
go, but potentially, you could bring a screeching halt to the 
whole economy in south Louisiana. The oil and gas needs of the 
country would be pretty well devastated.
    Mr. Melancon. Usually, as far as it can go, it ends up 
going.
    Dr. Rheault, the argument from Chesapeake Bay harvesters is 
that water degradation is the cause behind declining oyster 
populations. And how does that water quality compare to the 
conditions in which you grow your oysters, and why are they 
having trouble and you aren't?
    Dr. Rheault. Well, the oyster is a tremendously hearty 
species. It thrives in some tremendously polluted waters. It 
has been around since the age of the dinosaur and is 
tremendously adaptable.
    When I was doing my thesis research, we looked at growing 
oysters in marinas. And while we suspected problems from the 
heavy metals in the bottom paints and the fuel spills, we 
discovered 100 percent survival and growth rates as fast as any 
reported in literature.
    And I now grow my entire crop of 3 million seed under the 
docks of a gas dock in a marina with 100 percent survival. And 
we grow them out in clean water. So I question whether the 
water quality issues raised by the petitioner are the direct 
cause for the decline of the oyster.
    And why are the wild populations and the cultured 
populations different? It is because we protect our oysters. 
They are our pets. Everything eats a small oyster. Little 
crabs, little fish, jellyfish will eat the larvae. The little 
shrimp you see in the water, they will eat a baby oyster. And 
if you leave a baby oyster out unprotected, it is going to get 
eaten. And we protect our babies.
    And that is why aquaculture is able to thrive in areas 
where wild harvests are suffering because there have been new 
predators introduced. We have a new Japanese green crab. Now 
there is a cute new fiddler crab, new exotic crab. Other exotic 
species are coming in all the time, and these are all threats 
to the wild oyster that they are not threats to cultured 
oysters protected by farming.
    Mr. Melancon. Thank you, sir.
    Thank you, Mr. Chairman.
    The Chairman. Mr. Jindal?
    Mr. Jindal. Thank you, Mr. Chairman, for calling this 
hearing. I want to thank our witnesses as well.
    I have only got just three questions. First of all, I want 
to reiterate a point that has been made several times. The fact 
that we are talking about a species, we are talking about 
oysters that are harvested currently and whose range range from 
all the way from the Gulf of St. Lawrence all the way down to 
the Yucatan Peninsula. We have heard today about the fact that 
there are billions--I am going to repeat that--literally 
billions of these oysters.
    And so, where there may be legitimate concerns about what 
is happening in Maryland and the Chesapeake, I certainly want 
to make sure that everybody hears that we need to make sure we 
don't approach this with a one-size-fits-all solution that 
actually ends up causing more damage and more harm than 
actually it helps to repair. And it certainly doesn't make any 
sense from a Louisiana perspective or from some of these other 
perspectives to declare this entire range of species 
endangered.
    Having said that, I have three questions. The first is you 
have heard some comments about a piece of legislation I have 
introduced that would allow, as we have heard, the 
invertebrates to be treated as are vertebrates and allow the 
status of endangered species to be applied based on geography. 
So that the species is thriving in one area, it is not 
artificially claimed or declared to be endangered because of 
the way it is doing in another area.
    My first question to the various folks here on the panel 
is, is that an approach that you could support? I know some of 
you mentioned in your testimony, but I didn't hear everybody 
comment on that. And for the sake of time, I will lump in my 
second question. In addition to that specific approach, would 
you also be in support of an approach that gives States and 
regions more flexibility to protect the species, that works 
best based on those geographies?
    I am going to lump my first two questions together and 
allow the members of the panel to respond to those two 
questions.
    Mr. Cowart. In the Chesapeake Bay, we don't feel like that 
our species, even if you discount the Gulf coast or the 
Northeast coast, we don't feel like we have a threatened or an 
endangered species. And we feel like that the States, 
particularly Virginia--I am not familiar with all the work that 
goes on Maryland. But the State of Virginia has taken 
appropriate actions to try to actually reinvigorate these 
oyster populations.
    The oyster in the Chesapeake Bay is the solution to the 
problem. It is not the problem. The problem is something else. 
But obviously, if invertebrates are reclassified, we probably 
wouldn't have the Gulf coast guys here today in opposition to 
what is taking place perhaps with this particular listing that 
is proposed.
    Mr. Jindal. Thank you.
    Dr. Rheault. As I said in my testimony, I believe this is a 
local fisheries management issue, and I believe that the local 
authorities should be dealing with it in their own way. 
However, if we were to list this on a local basis, 
unfortunately, the consumer tends not to be very savvy. And if 
they hear that oysters are in trouble somewhere, they are 
likely to shy away from the product everywhere.
    When red tide hit in New England, even though all the 
product that was on the market was safe, and no one had even 
gotten sick, you couldn't sell an oyster in Boston. The 
consumer is going to hear that oysters are in trouble, and they 
are going to say, ``Well, I shouldn't be eating an endangered 
species or a threatened species.''
    They are not going to be able to differentiate between one 
harvested from the Gulf. They are going to shy away. Our 
markets will evaporate, and our industry will suffer.
    Mr. Voisin. Thank you, Representative Jindal, for the 
question.
    While I am not an expert in the Endangered Species Act and/
or the bill that you introduced, it appears to have a set of 
direction that needs to be directed at, and that is changes to 
the Endangered Species Act. My fear, though, is that if you are 
to say we are a subpopulation or a different group, what 
happens if the eastern oyster is declared endangered and 
Hurricane Andrew comes through Louisiana again?
    Do we all of a sudden see in the Terrebonne Bay system or 
in the Barataria Bay system when the oysters are wiped out, all 
of a sudden somebody says, well, now they are endangered in 
that area, and we have a subpopulation of the Louisiana 
industry or the Louisiana oyster. And so, they are endangered 
there. Which would prohibit what we do, which is rebuild those 
because the oysters farmers get back in and scrape the bottom, 
get the mud off, move the grassy materials and the marsh that 
has sunk on top of the beds.
    My fear is if we start looking subpopulation basis-wise. It 
makes sense. Logically, it all makes sense. But what happens is 
do we begin to open the door for people to say because of a 
one-time catastrophic event, it is endangered, and then it may 
take a generation or two without economic incentive to rebuild 
that area?
    Mr. Jindal. My time is about to run short. I will give you 
my third question. If we have time, I will let the panelists 
respond. And I certainly appreciate the comments.
    I guess what I am hearing out of this panel's testimony is 
the fact that we do need to be more flexible than what we are 
currently allowed to be. We need to have more options, in other 
words, currently available to us.
    I am aware, and I hope in future panels we will hear more. 
I know that there have been aggressive restoration plans put in 
place as recently as 2000-2001. I would like to hear more about 
the progress of those plans, whether there is something short 
of classifying the species as endangered that would allow these 
oysters to thrive.
    I would like to hear more about what is already being done. 
It seems like a short amount of time has passed since 2000-2001 
for us to be taking drastic action so quickly. I am sorry that 
the rest of the panel didn't get a chance to respond to the 
question. But what I am hearing from everybody is the fact that 
we do need to be more flexible in our approach.
    Thank you. Thank you, Mr. Chairman.
    The Chairman. Mr. Voisin, you talk about the incentives 
that exist currently to rebuild the oyster beds if they are 
disrupted and losing that particular incentive. I have a 
question, and this is where we have a very difficult way of 
dealing with this because when you talk about listing 
population segments, it is one thing if you are talking about 
the brown pelican and whether it is recovered in Maryland or 
not recovered in California. That is something that science can 
tell you whether or not you are at a sustainable population.
    When you are dealing with a commercially traded species, 
you have another layer of bureaucracy that comes on top of 
that, and that is where I have concerns about listing a 
particular population segment, and ultimately, what does that 
mean?
    I am familiar with at least one case in commercially traded 
product where the new layer of bureaucracy that is on top of 
that makes it almost impossible for them to sell their product 
within the United States because it is endangered, and the cost 
of meeting that is a concern. Is that a concern that you have?
    I mean, you are coming out of the Gulf. If we listed the 
Chesapeake Bay as an endangered population, how do you prove 
where your oysters came from?
    Mr. Voisin. Well, that is not an easy answer. I mean, you 
would have to have a scientist at every restaurant or oyster 
bar to make a determination and maybe do a DNA test or 
something like that. But Dr. Rheault, I think, did a great job 
of explaining that the consumer is savvy today, savvy enough to 
understand that there may be some potential concern.
    Yet when they hear about it, when he talked about the red 
tide outbreak in Massachusetts recently, oyster sales in 
Louisiana were impacted as well, and clam sales in Florida were 
impacted, where we were thousands of miles away from the 
concern. Because the consumer reads a little bit or hears a 
little bit, the confusion out there draws them away from the 
market.
    But the concern I see is that when there is an economic 
incentive to be able to get a return on an investment, I see 
that businessman getting with his congressman, getting with his 
local community leaders, and trying to accomplish something to 
rebuild versus when there is none, what I have seen--and I 
can't point to any specific situation. But in a general sense, 
if it is an environmental movement or a feel-good movement in a 
community, it wanes as time goes on.
    So that if you lose a generation, if you lose a generation, 
what is happening in the Chesapeake right now is a lot of the 
waterfront is actually being developed for things other than 
oyster processing plants. In fact, I was with an oyster 
processor last night that has now retired and sold his 
facility, and they are going to develop some really nice 
developments where his facility was. That is one more that we 
won't have when the bay comes back.
    And I say ``when the bay comes back'' because the bay will 
come back. It is a matter of time and energy, and the research 
and development is there to do that. So that is my biggest fear 
is we will generationally lose something, and in a generation 
or two, you are not going to grow oyster shuckers back. You are 
not going to grow the entrepreneurial spirit that oyster 
processors and farmers have today and the management of water 
bottoms and the ability to grow that product if there is not an 
economic incentive to do that.
    The Chairman. Mr. Bean, I know that you probably understand 
the incentives as well as anybody in the environmental 
movement, and it is something you have been talking about for a 
while. And I do want to broach that with you in terms of taking 
away the economic incentives that some of the other panelists 
have for recovering populations in certain areas. And when we 
talk about the Chesapeake, how do we create an economic 
incentive there to recover the species?
    Mr. Bean. I don't have a specific answer to that question. 
I agree with you that creating an incentive to do that is 
vitally important, but the main problem--certainly, one of the 
main problems in the Chesapeake is the new introduced diseases 
that occur there. And although I am hardly an expert on the 
matter, it is my understanding is that we don't really know 
quite how to deal with those diseases just yet.
    So unless and until we can overcome that, we may be facing 
problems that economic incentives alone can't address. But I 
certainly would agree that anything that encourages and rewards 
and induces oyster growers and others to be part of the effort 
to clean up water, to reduce some of the sources of pollution, 
to reduce some of the disturbances from dredging of ports and 
waterways and so forth, that is clearly needed.
    Whether the Endangered Species Act is needed, that is a 
different question. I don't know that it is. For the reasons I 
have indicated, it may not be.
    I would like, if I may, to add one point to what has been 
said about the willingness of consumers or the potential 
confusion of consumers. I think there is actually a good test 
case of that already available. There are a number of 
populations of salmon that are endangered, have been listed as 
endangered for a number of years. But the consumption of salmon 
by the American consumer does not seem to have been adversely 
affected by that.
    So the distinction between illegal salmon, if you will, or 
endangered salmon and non-endangered salmon doesn't seem to 
have created any confusion in the marketplace.
    The Chairman. I believe initially with the salmon on 
listing it was impacted. But I guess my fear in that particular 
case is when you have groups that start going after the farm-
raised salmon and saying that it is not as healthy or it is 
polluted or whatever. And that is where some of the guys who 
are really into aquaculture get in trouble.
    You know, it is one thing when you list a wild population 
as endangered, but then when groups start going after the farm-
raised as not being as good, it is like, okay, what do you 
want? And that is one of the problems that we run into.
    Mr. Gilchrest, did you have any further questions?
    Mr. Gilchrest. Thank you, Mr. Chairman.
    Just an interesting observation, I think. I don't know. I 
shouldn't even make this statement in public that I don't think 
the virginica is going to be designated as endangered, maybe 
not even as threatened. So I don't think we are going to get 
that far.
    But one of the things we might want to pursue with the 
reforming of the Chesapeake Bay--I would like to reform the 
Chesapeake Bay. Put me in charge of the Chesapeake Bay.
    [Laughter.]
    Mr. Gilchrest. But when we look at the Endangered Species 
Act and if, let us say, this eastern oyster was threatened or 
declared endangered as a sub-species in the Chesapeake Bay, 
what effect would that have on the aquaculture operation in 
Virginia? Or the aquaculture operation on the Long Island 
Sound?
    That would be because those are thriving, and they are 
bringing oysters back. It would affect the wild stock, we all 
can assume. But how about the farm-raised oysters, which have 
come back quite well in the Long Island Sound? So that is just 
an observation I have. I don't know if anybody wanted to 
comment on that?
    Mr. Bean. Well, I would say, Mr. Gilchrest, that at least 
potentially one could distinguish farmed or maricultured 
oysters from wild oysters if the listing were threatened rather 
than endangered. There would be the flexibility to do that. 
Whether NOAA would choose to do that, I couldn't say. But they 
would have that authority if it was appropriate.
    Mr. Gilchrest. Thank you. And I just thought of another one 
I might want to ask the gentleman from Virginia. I am just 
curious, as being someone from Maryland, you guys down in 
Virginia have greater aquaculture operations going. Many of my 
friends, including my brother-in-law, harvest oysters. He does 
that out of Crisfield, and he is a very successful waterman. 
Deals with a lot of different things, and he has been doing it 
now for probably 30, 35 years.
    I am just curious as to, from your perspective, Maryland's 
approach to this Asian oyster is different from Virginia's 
approach to the Asian oyster. Do you have an opinion on 
Maryland's approach to the introduction of the Asian oyster to 
the Chesapeake?
    Mr. Cowart. Representative Gilchrest, I believe Maryland's 
proposal to the Asian oyster is based on a public fishery, and 
that is what a Maryland fishery is because almost 100 percent 
of that is public. And obviously, as you know, the Maryland 
oysterman is also a Maryland crabber during the summer months. 
So he depends on crabs in the summer months, takes the pressure 
off of crabs when he has oysters to harvest in the winter 
months. And he is able to continue to be a waterman.
    Unfortunately, a lot of Marylanders are now working for 
prison systems and other things. They are not watermen anymore 
in Maryland, which really hurts us in Virginia as oyster 
processors because from October 1 until March the 31st, our 
plant and other plants in Virginia depend on those Maryland 
waters for our oyster resource. And we can't do that anymore.
    But in Virginia, we look at aquaculture and the non-native 
oyster as a resource that will live in our waters in the face 
of diseases, grow to the point where they are harvestable, and 
triploid oysters are really what we target. The watermen in the 
State are more interested, of course, in diploid because they 
would reproduce and be available for public harvest.
    So I think it depends on the way the industry is structured 
in the two States. But I think that the Maryland watermen 
depend on Virginia processing houses, and we depend on the 
Maryland watermen for resources.
    Mr. Gilchrest. Thank you very much. Maybe we can sit down 
continually and integrate these two different systems to be 
more compatible.
    Mr. Cowart. We would appreciate that opportunity. If it 
were available, we would certainly appreciate that opportunity.
    Mr. Gilchrest. Thank you very much.
    Thank you, Mr. Chairman.
    The Chairman. Mr. Melancon?
    Mr. Melancon. Mr. Chairman, thank you.
    Just as a closing, because I have always left the 
conversation needing questions in my mind, is there anything 
that you feel needs to be said here that you feel might have 
some effect that has not been brought out yet?
    Mr. Voisin. Charlie, I think we have brought it all out. I 
think that the Endangered Species Act--in the last couple of 
days, I have talked to a lot of people--it must have some flat 
tires. If it is a car, it has flat tires. Maybe the engine is 
broke.
    Something needs to be fixed when I am producing billions of 
oysters in Louisiana, there are hundreds of millions on the 
East Coast, and we are here, coming to Washington, to sit 
before you to talk about it being listed as endangered. So that 
I believe we need you, Congress, working with us, someone needs 
to fix the flat tires or the broken engine. It doesn't make 
sense.
    You know, it takes away from our family business for me to 
be up here, which I don't mind being up here. I come up here 
and enjoy the fellowship of working with you. But the fear that 
my son, who is coming to work with us in September, has right 
now. He is saying, ``Dad, will I have a job after January 11, 
2006?''
    He just got out of the University of Utah. We just made a 
deal with him, and he is a pretty good negotiator. He got more 
money than I would have normally paid him. These business 
schools are pretty good. And he is afraid that, you know, 
potentially this could impact his generation.
    And then my other son says, ``What about my son, who is now 
the ninth generation? Where is he going to go?'' We have 
investment plans. We have a 10-year plan in our company. We are 
producing hundreds of millions of oysters. We support the 
challenges they are having by supporting research and 
development on the East Coast. And you guys have supported it 
as well, and we appreciate that support.
    But as far as I guess one thing I would ask is that maybe 
the proceedings of this hearing, if you would forward them to 
the status review team that the National Fisheries Services put 
together, I would appreciate it. If we could get that forwarded 
to them so they can see what the comments were here.
    Mr. Melancon. Thank you. And I understand the concern with 
a business that might be put out. I grew up in the sugar 
business. Thank you.
    [Laughter.]
    The Chairman. Well, Mr. Voisin, we are trying to fix those 
flat tires and looking at the engine. And every time we talk 
about fixing that old car, we have people running around saying 
there is nothing wrong with that old car. It looks great to 
them. So it is an ongoing battle.
    But I appreciate your comments, and I appreciate the 
testimony of all of the panel. I know that this is an extremely 
important issue to you or else you wouldn't have taken the time 
to be here. And I thank you for that.
    The Chairman. I am going to dismiss this panel and call up 
our second panel of witnesses: Dr. John Kraeuter, Dr. Sammy 
Ray, Mr. Patrick Gaffney, and Dr. Matthew Hare.
    If I could have all of you stand and raise your right hand?
    [Witnesses sworn.]
    The Chairman. Thank you. Let the record show they all 
answered in the affirmative. Welcome to the Committee. I remind 
the witnesses that your entire written statements will be 
included in the record, but if you could limit your oral 
testimony to 5 minutes, it would help us to better stay on 
schedule. Thank you.
    Dr. Kraeuter, we are going to begin with you.

   STATEMENT OF JOHN N. KRAEUTER, ASSOCIATE DIRECTOR, HASKIN 
SHELLFISH RESEARCH LABORATORY, INSTITUTE OF MARINE AND COASTAL 
                  SCIENCES, RUTGERS UNIVERSITY

    Dr. Kraeuter. Mr. Chairman, members of the Committee, I am 
Dr. John Kraeuter.
    The Chairman. You have to pull that mike right up to you.
    Dr. Kraeuter. Mr. Chairman, members of the Committee, I am 
Dr. John Kraeuter, Associate Director of the Haskin Shellfish 
Research Laboratory of Rutgers University. I am here today to 
provide testimony on the petition to list the eastern oyster as 
endangered and threatened.
    I have submitted the written testimony, and I would 
appreciate if that is incorporated. This is excerpts from that.
    I have polled my academic colleagues on their opinion about 
listing oysters as endangered and threatened. Within this list, 
there are three individuals who were on the National Academy of 
Sciences panel that produced the volume on non-native oysters 
in the Chesapeake Bay, and one who has served on the National 
Academy Review of the Endangered Species Act.
    Of the 17 I was able to contact, none thought that listing 
the eastern oyster as endangered or threatened was 
scientifically justified. Some voiced the opinion that while 
the disease and habitat destruction were issues relative to the 
oysters' abundance, they do not fundamentally affect the 
potential for extinction of the species. These experts thought 
the most important factor was that local managers in some areas 
have not managed the resource in a way that the oyster 
population and oyster habitat was maintained.
    My professional opinion is the same. There is no scientific 
justification for listing the eastern oyster as endangered or 
threatened. Such a listing would hurt existing efforts on 
habitat restoration of this species by placing unneeded and 
unnecessary bureaucratic hurdles in the way.
    There are a number of important societal and ecological 
reasons for having large populations of filter feeders in our 
near-shore systems. To do this, we simply need a management 
system that provides long-term population goals, quantifiable 
data on the status of the resource, and the will to implement 
the means of achieving the goals based on the data.
    I would like to focus attention on Delaware Bay and, if I 
could have the first figure, the chief oyster producing area in 
New Jersey. Our laboratory has been active in oyster research 
on Delaware Bay since the early 1900s. Since 1953, we have had 
an annual sampling program that assessed the natural oyster 
seed areas. That is those little black dots up there. We have 
landing records that date from 1880, but we know that oyster 
harvest within the bay began much earlier.
    The system of moving oysters from the upper bay to the 
lower bay for additional growth was firmly in place by the 
middle of the 1800s, and seed were imported in the system from 
at least 1829. This practice was halted when the oyster 
parasite MSX entered the bay in 1957 and caused heavy mortality 
on the planted oysters. At least half the drop in landings post 
MSX were due to the loss of these imported seed and do not 
reflect changes in the natural oyster population or its 
production within the bay.
    Our systematic records date from 1953, just before the MSX 
epizootic in 1957. These data, Figure 2, if you will, indicate 
that the oyster abundance--that is the diamonds--was low prior 
to MSX and remained low until the early 1960s, when recruitment 
increased. That is the little squares.
    Although MSX removed over 90 percent of the oysters in the 
lower bay planted grounds and probably half the New Jersey 
population in 1957-1958, there was no evidence for change in 
the abundance of young oysters. In the early 1960s, the 
increased spat set--spat are young oysters--began a period of 
high abundance, which lasted until the middle of the 1980s, 
when another MSX epizootic (1985), associated with a severe 
drought, reduced the numbers of adult oysters in the system.
    This second outbreak seems to have increased resistance to 
the introduced disease. There is some evidence that the adult 
population began to recover. See the slight increase in 1987 
and 1988. But another parasite, Dermo, reached epizootic levels 
in 1990.
    The net effect of the 1985 MSX and the 1990s Dermo induced 
mortalities that we are now in a second period of low 
abundance. The most recent decrease is due to the Dermo and the 
5 years of poor spat settlement. We are very concerned about 
this condition, and allocation for harvest in 2005 is half that 
of 2004 and amounts to less than 1 percent of the marketable 
oysters on the seed beds.
    In spite of the low abundance, there are approximately 1.9 
billion oysters in the seed bed area of the New Jersey side of 
Delaware Bay. This does not include Delaware or the areas of 
the bay we do not sample. There could easily be as many oysters 
outside the sampled area as within the sampled area.
    Mortality and recruitment are as important as standing 
stock. And over the past 50 years, the year of highest spat 
abundance yielded only approximately 3.5 spat per adult oyster. 
The long-term (50-year) average is only 0.79 spat per adult. 
This means that restoration will require a concerted effort 
over a relatively long period of time and that science-based 
management is critical.
    In Delaware Bay, we are enhancing the resource by a three-
pronged strategy--reduced harvest, planting of shell to enhance 
recruitment on the seed beds, and planting of shell in areas of 
high spat set and moving of that set to high survival areas. 
This is necessary because in an area with a salinity gradient 
such as Delaware Bay, the areas of best recruitment of spat are 
not the best areas for survival.
    The 3-year enhancement program is being funded 
approximately equally by the Federal Government, the State 
government, and the self-imposed tax on the commercial oyster 
industry. The program is designed to become self funding, as 
the oysters harvested from the enhancement will provide greater 
landing-fee receipts--that is, taxes--to sustain the program.
    In summary, in the past 50 years, the Delaware Bay oyster 
resource has experienced two periods of low abundance, 
separated by an equal period of high abundance. Plans are being 
implemented this year to assist in habitat, resource, and 
commercial recovery. In terms of the charge of this committee, 
I can find no scientific evidence that would support listing 
the eastern oyster as endangered or threatened.
    Are there estuaries and oyster populations in need of 
immediate attention and restoration? Unequivocally, yes. Is 
there a need for a concerted, scientifically designed, 
quantifiable, documented long-term habitat and oyster 
restoration efforts at the Federal, State, and local levels? 
Yes. Is there a need to support aquaculture of oysters and 
other filter feeders as part of overall improvement of our 
estuarine systems? Yes.
    All this said, I would caution the Committee that oyster 
habitat restoration is necessary to restore oysters. We need a 
mechanism to move forward with time-tested restoration efforts 
without wasting time and, therefore, money jumping through 
needless environmental impact statements just to be sure 
everyone can place the blame elsewhere.
    Thank you for your time. I would be happy to answer any 
questions you have or provide any follow-up materials you may 
want. Thank you.
    [The prepared statement of Dr. Kraeuter follows:]

Statement of Dr. John N. Kraeuter, Associate Director, Haskin Shellfish 
Research Laboratory, Institute of Marine and Coastal Sciences, Rutgers 
                               University

    Mr. Chairman, members of the Committee. I am Dr. John Kraeuter, 
Associate Director of the Haskin Shellfish Research Laboratory, 
Institute of Marine and Coastal Sciences, Rutgers University. I am here 
today to provide testimony on the status of the Eastern Oyster and the 
Petition to List the Eastern Oyster as Endangered and Threatened.
    My Curriculum Vitae is appended to the disclosure document.
    This is document supports my testimony before your committee.
    I have polled my academic colleagues, who I think are familiar with 
the biology, ecology and status of Crassostrea virginica, on their 
opinion about listing it as Endangered and Threatened. I purposefully 
did not contact the many state and federal biologists, or industry 
members with advanced degrees to avoid potential for conflict of 
interest. Within this list are three individuals who were on the 
National Academy of Sciences Panel that produced the volume on 
Nonnative Oysters in the Chesapeake Bay, and one who has served on the 
National Academy Review of Endangered Species. Of the 17 I was able to 
contact, not one individual thought that listing the eastern oyster as 
endangered or threatened was scientifically justified, many thought it 
would hinder restoration efforts. Some voiced the opinion that while 
disease and habitat destruction were issues relative to the oysters 
abundance they do not fundamentally affect the potential for extinction 
of the species. These experts thought the most important factor was 
that local managers in some areas have not managed the resource in a 
way that the oyster population and the oyster habitat was maintained. 
The problem is not one of biology, but of the interactions between 
science, management and the political process.
    My professional opinion is the same: There is no scientific 
justification for listing the eastern oyster, Crassostrea virginica as 
endangered or threatened. Furthermore such a listing would hurt 
existing efforts on habitat restoration for this species by placing 
unneeded and unnecessary bureaucratic hurdles in the way. In addition 
these hurdles would greatly hinder other efforts to restore our 
estuaries, again by placing bureaucratic hurdles where they will simply 
deter rather than enhance. Quite simply we need a management strategy 
system that provides long term population goals, quantifiable data on 
the status of the resource, AND the will to implement the means of 
achieving the goals based on the data.
    That said, there are a number of important societal, and ecological 
reasons for having large populations of filter feeders (oysters, clams, 
scallops, mussels etc.) in our nearshore systems:
    Filter feeders assist in maintaining water quality by removing both 
phytoplankton and other suspended materials from the water and 
depositing it on the bottom. This can augment in nutrient recycling, 
and improve water quality, at least locally;
    Filter feeders support recreational, and commercial (fishing and 
aquaculture) activities thus connecting our increasingly urban 
population to the natural system. By doing so shellfish are ready made 
ambassadors for good water quality (you can swim in water that is 
microbiologically unsafe for shellfish harvest);
    Reef forming filter feeders such as oysters provide a hard 
substrate in an area dominated by soft bottom (sand and mud) habitats. 
This hard substrate is essential for oyster recruitment and allows many 
other species to inhabit an otherwise uninhabitable area.
    I'd like to now focus my attention on an area I am most familiar 
with, Delaware Bay.
    In New Jersey the chief oyster producing area is Delaware Bay 
(Figure 1). Our laboratory has been active in oyster research in 
Delaware Bay since the early 1900's. Since the middle 1950's we have 
had an annual sampling program that assessed the natural oyster seed 
area in this estuary.
    We have landing records that date from 1880, but we know that 
oyster harvest within the bay began much earlier (Figure 2). The system 
of moving oysters from the upper bay (seed beds) to the lower bay 
(planted grounds) was in place by the middle of the 1800's. Seed were 
exported from Delaware Bay to growing areas in Massachusetts and 
Connecticut in the early 1800's and imported into the system from at 
least 1829 (the opening of the Chesapeake and Delaware Canal. This 
practice was halted when the oyster disease MSX (Haplosporidium 
nelsoni) entered the bay and caused heavy mortality on the planted 
oysters. At least half of the drop in landings post MSX was due to the 
loss of imported seed and does not reflect changes in the natural 
oyster population or its production within the bay.
    Our systematic records date from just before the incursion of MSX, 
but were initiated because of concern about the declining production 
before MSX. We have recently been working through the records (they 
were recorded as numbers of oysters per bushel of sample) and 
converting these to numbers of oysters per square meter. These data 
represent the most productive areas of the seed beds, and indicate 
(Figure 3) that oyster abundance was indeed low in the 1950's prior to 
MSX and remained low until the early 1960's when recruitment increased. 
Although MSX removed over 90% of the oysters in the lower bay planted 
grounds (probably half the NJ population) in 1957/58 there was no 
subsequent change in the abundance of spat (Figure 3). In the early 
1960's increased spat set began a period of high abundance (in spite of 
the continued low levels of MSX) which lasted until the middle of the 
1980's when another MSX epizootic (1985), associated with a severe 
drought, reduced the numbers of adult oysters in the system. This 
second outbreak, while causing widespread losses, seems to have yielded 
increased resistance to the introduced disease in the oyster 
population. There is some evidence that adult population began to 
recover (see slight increase in 1987 and 1988), but dermo (Perkinsus 
marinus) reached epizootic levels in 1990. The subsequent reduction in 
adult oysters in the lower portion of the seed beds (or some other 
factor (s)) appear to have set the oyster population at a lower level. 
There is reasonable evidence that the increase in dermo was due to the 
increase in water temperatures during the same period.
    The net effect of the 1985 MSX, and the 1990's dermo induced 
mortalities is that we are now in a period of low abundance. The most 
recent decrease is due to the dermo coupled with 5 years of poor spat 
settlement. We are very concerned about this condition and have been 
reducing the allocation for harvest as this condition persists. In 2005 
the allocation is about half that of 2004, and amounts to less than 1% 
of the marketable oysters on the seed beds.
    In spite of the low abundance there are approximately 1.9 billion 
oysters on the seed bed area of the New Jersey side of Delaware Bay. Of 
these about 100 million oysters, 2.5 inches and greater, are present on 
the most productive parts of these beds. These figures do not include 
areas of the bay we do not sample, the oyster populations is tidal 
creeks fringing the bay and the planted grounds down bay (Figure 1). 
There could easily be as many oysters outside the sampled area as in 
the sampled area.
    The standing stock of oysters is only part of the story. What is 
equally important is the mortality rate and the recruitment rate. 
Contrary to general opinion, the eastern oyster is not well adapted to 
quick recoveries. The chart shows the record from Delaware Bay for the 
past 50 years (Figure 4). Note that even in the year of highest spat 
abundance the adults produced only approximately 3.5 spat per adult. 
The long term (50 year) average is only 0.79 spat per adult. This means 
that restoration efforts will require a concerted effort over a 
relatively long period of time.
    In Delaware Bay we have embarked on a program to enhance the 
resource by a three pronged strategy: Reduced harvest, planting of 
shell to enhance recruitment on the seed beds, and planting of shell in 
areas of high spat set (Figure 4). It is often startling to people who 
haven't studied oysters in an area with a salinity gradient such as 
Delaware Bay, that the areas with the best recruitment of spat are not 
the best areas for survival. The seed beds are in an area where spat 
set and subsequent growth is modest, but survivorship is high. The 
areas of highest spat set are often areas of good growth, but poor 
survival. This is the genesis of using the seed bed as a source for 
oysters that were larger (seed) and could survive better in the higher 
salinity. The higher salinity areas in Delaware Bay also produces 
oysters with better meat quality. A pilot-scale shell planting in 2003 
by the State of New Jersey showed that the setting rate on clean shell 
in areas of high settlement was 75 times greater than the natural rates 
on the seed beds. Current projections indicate that the $40,000 spent 
on this program should yield 20,000 to 40,000 bushels of marketable 
oysters in 2006. At current prices this is an ex-vessel value of 
$700,000 to $1,000,000, and at the current tax of $1.75 per bushel 
yield between $35,000 and $70,000 for the resource development account. 
We know the science of how to restore oyster populations. We should 
study these attempts to indicate how we can do oyster restoration more 
efficiently.
    The enhancement program for 2005 to 2007 is being funded by 
$100,000 per year from the Federal Government through the empowerment 
zone, $150,000 from the Corps of Engineers, $100,000 per year from the 
State Government and a self imposed Tax on the commercial oyster 
industry. The latter currently has $178,000 in the account and it will 
be added to as oysters are harvested. We believe we have sufficient 
funds to continue it for 3 years. The program is designed to become 
self funding as the oysters from the enhancement effort are harvested 
they will provide greater landing-fee receipts (taxes) which can 
sustain the program.
    While such a program sounds great, it is only for 3 years, and it 
took a number of dedicated individuals several years to secure funding. 
Even at the last minute there was an attempt to derail the program by 
suggesting that oyster shells could cause a contaminant problem, and 
that the organization handling the funding could be liable for their 
removal from the system. This is in spite of centuries of experience 
throughout the world using oyster shell to enhance settlement. The 
biology of how to do oyster restoration is well
    In summary, the Delaware Bay oyster resource has experienced both a 
historical and a recent significant decline, but plans are being 
implemented to assist in its recovery and the recovery of commercial 
production.
    In terms of the charge of this committee. I can find no scientific 
evidence that would support listing the eastern oyster Crassostrea 
virginica as an endangered or threatened species.
    Are there estuaries and oyster populations that need immediate 
attention and restoration. Unequivocally yes.
    Is there a need for concerted, scientifically designed, 
quantifiable, documented long term habitat and oyster restoration 
efforts at the federal, state and local levels? Yes.
    Is there a need for improving the water quality in the estuaries? 
Yes.
    Is there a need to support aquaculture of oysters and other filter 
feeders as part of the overall improvement of our estuarine systems? 
Yes.
    All this said, I would caution the committee that oyster habitat 
restoration (clean shell on the bottom being a key feature), is a 
necessary precursor to other efforts. This is a long term effort and 
the federal system can help by providing consistent long term (on the 
order of a decade or more) support. Please resist the temptation to 
provide large infusions of support for short periods, because 
experience suggest such efforts are less likely to succeed.
    We also need a mechanism to move forward with time tested (although 
often not well documented) restoration efforts with species native to 
the area without wasting time (and therefore money) jumping through 
needless ``environmental impact statements'' just to be sure everyone 
can place the blame elsewhere.
    Thank you for your time, and I'd be happy to answer and questions 
you may have now, or follow up on any of the materials I have 
submitted.

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                                 ______
                                 
    The Chairman. Thank you.
    Dr. Ray?

        STATEMENT OF SAMMY M. RAY, PROFESSOR EMERITUS, 
        MARINE BIOLOGY DEPARTMENT, TEXAS A&M UNIVERSITY

    Dr. Ray. I am Sammy Ray, professor emeritus at Texas A&M, 
and I am an oyster research scientist with nearly 60 years of 
experience. And I thank you, the Resource Committee members, 
for allowing me to have my say. It is often I have found that 
people do not want me to have my say. So I am going to take 
this opportunity to do it.
    I oppose the petition to include the eastern oyster as 
endangered or threatened under the Endangered Species Act. My 
opposition is based on three claims. The oyster is in no way 
threatened or endangered. Listing the oyster as endangered 
species is a misuse of and possibly a threat to the Endangered 
Species Act. And three, a drastic, geographically broad 
solution--banning all oyster harvest--is proposed for a 
geographically narrow failure. That is a failure to manage 
oyster, fresh water in-flow, and water quality management.
    The eastern oyster is not endangered or threatened. On the 
contrary, one of the most common invertebrates in mesohaline 
environment, they occur in prodigious numbers, are extremely 
fecund, form massive reefs, and support valuable fisheries.
    And I am going to talk only about Texas. Texas has landed a 
minimum of about 3 million pounds of oyster meat for the past 
10 years. And recently, in calendar years 2003, 2004, the 
harvest has amounted to 4.3 and 5.1 million pounds, 
respectively. Moreover, the 2005 Texas production is likely to 
exceed 5 million pounds due to favorable rainfall conditions 
for the past 2 years.
    The Endangered Species Act should be reserved for species 
that are truly threatened or endangered. If the eastern oyster 
is considered endangered, the designation criteria are so broad 
as to make ESA biologically meaningless and politically 
vulnerable.
    Valuable and viable sustainable oyster fisheries exist over 
much of the range. Designation of the eastern oyster as 
endangered would destroy successful oyster industries of the 
Gulf and the Atlantic States without saving the industry of 
Chesapeake Bay.
    I find it difficult to understand the rationale for this 
approach. Declaring the eastern oyster as endangered throughout 
its broad range will do nothing to correct the environmental 
problems of Chesapeake Bay. If the proponents of this measure 
truly believe that cessation of oyster harvest will promote its 
recovery, why not have the States of Maryland and Virginia halt 
all oyster harvest from Chesapeake Bay and its tributaries?
    It is my understanding that the most recent annual harvest 
from the bay amounted to about 50,000 bushels. I might, as an 
aside, 100-acre oyster lease in Galveston Bay produces that 
many oysters year after year.
    So as not to harm the watermen who depend on oysters for 
their livelihood, I propose to subsidize the estimated harvest 
at a premium of $25 a bushel. We pay farmers not to grow crops. 
I see nothing wrong with paying oystermen not to harvest 
oysters. In Texas and other Gulf States, the oyster production 
is cyclical and is positively related to rainfall amounts.
    In periods of prolonged droughts, populations decline due 
to the ravages of predators and Dermo disease. In extremely wet 
years, we experience freshwater kills in the upper regions of 
the bays. In either case, the recruitment returns when normal 
salinity conditions exist. Often we have complete failures in 
an area, and 2 years later, we are harvesting commercial 
quantities of oysters.
    As long as we have adequate freshwater flows in Texas, 
substantial oyster populations will exist. Without doubt, 
production is tied to rainfall cycles.
    Now at this point, I wish to paraphrase a business adage as 
it relates to my long experience as an oyster biologist. It has 
often been stated that there are three important factors in a 
business. One, location. Two, location. Three, location.
    And it is my belief of many years there are also three 
factors related to successful oyster production. One, salinity. 
Two, salinity. Three, salinity. And I wish to make a quick 
comment about the importation of the Asian oyster, Crassostrea 
ariakensis, to augment Chesapeake Bay's oyster population.
    In my opinion, this would be a horrible ecological mistake. 
This oyster is a cold-water, fast-growing, and thin-shelled 
oyster. It may be disease resistant, but I am convinced that it 
is not mud-worm, or Polydora, resistant.
    I wish to remind the proponents of this importation of the 
results of bringing the Pacific oyster, Crassostrea gigas, to 
the Gulf of Mexico. In early 1930s, Dr. Martin Burkenroad 
brought the Pacific oyster to Louisiana, and he found that the 
mud-worm was very destructive to this cold-water, fast-growing, 
thin-shelled oyster. Let us learn from our mistakes and not 
repeat them.
    In summary, I consider the petition to list the eastern 
oyster as endangered to be biologically unjustified, 
procedurally inappropriate, politically unwise, and 
economically devastating. I strongly urge its immediate denial. 
Thank you.
    [The prepared statement of Dr. Ray follows:]

          Statement of Dr. Sammy M. Ray, Professor Emeritus, 
            Marine Biology Department, Texas A&M University

    Honorable members of the Resources Committee:
    As an oyster research scientist with nearly 60 years of experience, 
I oppose the petition to include the eastern oyster as an endangered or 
threatened species under the Endangered Species Act (ESA). My 
opposition is based on three claims: (1) the oyster is in no way a 
threatened or endangered species, (2) listing the oyster as endangered 
species is a misuse of and possibly a threat to the ESA, and (3) a 
drastic, geographically-broad ``solution'' (banning all oyster harvest) 
is proposed for a geographically-narrow failure (oyster, freshwater and 
water quality management in Chesapeake Bay).
    The eastern oyster is not endangered or threatened. On the 
contrary, oysters are one of the most common invertebrates in 
mesohaline (5-25 ppt) environments. They occur in prodigious numbers, 
are extremely fecund, form massive reefs and support valuable 
fisheries. In Louisiana alone, 10 to 12 million pounds of oyster meat 
are harvested year after year. Furthermore, Texas has landed a minimum 
of about 3 million pounds of oyster meat for the past 10 years. Recent 
commercial harvests (calendar years 2003 and 2004) have amounted to 
about 4.3 and 5.1 million pounds of meat, respectively. Moreover, the 
2005 Texas production is likely to exceed 5 million pounds of meat due 
to favorable rainfall conditions for the past two years.
    The ESA should be reserved for species that are truly threatened or 
endangered. If the eastern oyster is considered endangered, then the 
designation criteria are so broad as to make the ESA biologically 
meaningless and politically vulnerable.
    Valuable, viable and sustainable oyster fisheries exist over much 
of the range of the eastern oyster. Designation of the eastern oysters 
as endangered would destroy successful oyster industries of the Gulf 
and Atlantic States without saving the industry of Chesapeake Bay.
    Oyster populations in the Chesapeake, except for moderate 
recoveries in the 60's and 70's, have steadily declined since 1957. In 
the last 10--15 years the decline has been precipitous and has just 
about hit ``rock bottom''. The reasons generally given for this 
population collapse are: (1) over-fishing, (2) pollution and (3) 
diseases.
    This sad situation prevails despite the fact that Chesapeake Bay 
was the first estuary to be selected for rehabilitation and special 
protection through the National Estuary Program. Through this program 
and many other Federal, State, and private conservation initiatives, 
millions have been expended in efforts to restore this great estuary to 
a semblance of its former productivity. Many of the various approaches 
that have been used throughout the years to bring back the Chesapeake 
oysters appear to have been based on the best scientific information 
available, yet none have proven successful. These tremendous recovery 
efforts have been a colossal ``failure''. Yet, in desperation, some 
must believe that declaring the eastern oyster ``endangered'' will 
solve the Chesapeake's monumental environmental problems.
    I find it difficult to understand the rationale for this approach. 
Declaring the eastern oyster as endangered throughout its broad range 
will do nothing to correct the environmental problems of Chesapeake 
Bay. If the proponents of this measure truly believe that cessation of 
oyster harvest will possibly promote its recovery, why not have the 
states of Maryland and Virginia halt al oyster harvesting from 
Chesapeake Bay and its tributaries. It is my understanding that the 
most recent annual oyster harvest from the bay amounted to about 50,000 
bushels. So as not to harm the ``watermen'' who depend on oysters for a 
livelihood, subsidize the estimated oyster harvest at a premium of 
$50.00 per bushel. We pay farmers not to grow crops, I see nothing 
wrong with paying oystermen not to harvest oysters.
    In Texas and other Gulf States, oyster production is cyclical and 
is positively related to rainfall amounts. In periods of prolonged 
droughts populations decline due to ravages of predators and dermo 
disease. In extremely wet years we experience freshwater kills in the 
upper regions of the bays. In either case, the recruitment following 
return to normal salinity conditions often result in commercial 
quantities of oysters within two years. As long as we have adequate 
freshwater inflows into Texas bays substantial oyster populations will 
exist. Without doubt oyster production is tied to rainfall cycles.
    Although not part of this hearing, I cannot resist commenting on 
the proposal to bring in the Asian oyster (Crassostrea ariakensis) to 
augment the Chesapeake's oyster population. In my opinion this would be 
a horrible ecological mistake. This oyster is a cold-water, fast-
growing and thin-shelled oyster. It may be disease resistant but I am 
convinced that it is not mud-worm (Polydora) resistant. I wish to 
remind the proponents of this importation of the results of bringing 
the pacific oyster (Crassostrea gigas) to the Gulf of Mexico. In the 
early 1930's Dr. Martin Burkenroad brought the pacific oyster to 
Louisiana. He found that the mud-worm was very destructive to this 
cold-water, fast growing and thin-shell oyster. Let's learn from our 
mistakes, not repeat them.
    In summary, I consider the petition to list the eastern oyster as 
endangered to be biologically unjustifiable, procedurally 
inappropriate, politically unwise and economically devastating. I 
strongly urge its immediate denial.
                                 ______
                                 
    The Chairman. Thank you.
    Mr. Gaffney?

           STATEMENT OF PATRICK GAFFNEY, PROFESSOR, 
       UNIVERSITY OF DELAWARE, COLLEGE OF MARINE STUDIES

    Mr. Gaffney. Thank you very much. My name is Pat Gaffney. I 
am a professor at the College of Marine Studies at the 
University of Delaware. I work on the population genetics of 
marine and fish and shellfish, especially on oysters.
    And my comments today will be excerpted from my written 
statement, and they are fairly narrowly focused rather than 
dealing with the wisdom of the Endangered Species Act or this 
particular petition. I am just going to talk about some issues 
that do bear on this, and that is namely the genetic evidence 
for the subdivision of the species.
    In other words, we have talked about is this a single 
species? Does it exist as several sub-species which, as I 
understand it, could be listed separately? And whether the 
Chesapeake Bay population, for example, might be one of those. 
So I am just going to sort of make some general comments 
without going into great detail.
    This species occupies a very wide environmental range from 
the cold waters of Canada to the subtropical waters of the 
Yucatan and is enormously adaptable, as you have probably heard 
already. So for more than, say, 50 years, oyster biologists 
have suggested that there were distinct physiological races, 
and this was based on the observations that they spawn at 
different times. They have different temperature, salinity 
optimum, and so on.
    And it was never really clear whether this reflected simply 
adaptation occurring during an oyster's lifetime or whether 
these were genetically adapted different populations. If the 
latter were true, that is of interest to people who are 
interested in preserving biodiversity and the genetic resources 
of the species, whether you are talking about for wild 
populations or future aquaculture.
    So starting in about the 1980s, when genetic tools became 
more available, scientists started looking at this. And the 
initial suggestion was that, basically, oysters were the same 
all over from Canada to Mexico, with the possible exception of 
the very peripheral populations in Canada and southern Texas, 
in the Lower Laguna Madre, which is sort of a special habitat. 
And that made sense at the time because oyster larvae are in 
the water column for several weeks, and it was thought that 
because of that dispersal, you had genetic mixing all across 
the range from Atlantic through the Gulf.
    That view changed very much in the early 1990s, when 
research was done, DNA technology developed, and to make it 
short, studies in mitochondrial DNA, which is used extensively 
in human genetics and a variety of other arenas, showed that, 
in fact, Gulf and Atlantic populations are quite distinct and 
probably have been separated evolutionarily for at least a 
million years. And this is consistent with a wide variety of 
other species which show the same patterns.
    The work in my lab has basically agreed with that, 
confirmed that, and extended it. And so, I don't think there is 
any question that Gulf and Atlantic, from a genetic point of 
view, are different enough that they might be viewed as 
separate sub-species, although I should mention that biologists 
agree that the term ``sub-species'' is a very liquid term. It 
is very hard to define. It is much more difficult than defining 
a species.
    So moving on, we have since looked at variation--looking at 
my time there--within the Atlantic. And originally, it was 
thought that, well, perhaps Gulf and Atlantic are separate and 
distinct, but within these two basins there is not much 
differentiation. And in fact, that is probably generally true, 
but there is some differentiation--and I am not sure if I can 
see my first figure? I didn't know how many people would have 
the handouts and if they have the color images. But I can just 
describe what is in them.
    Basically, I have several figures showing patterns of 
genetic differentiation among the populations. So if you have 
your first figure and if you are fortunate enough to have a 
color copy, basically, what you see is if you look along the 
Atlantic seaboard, you will see that these different colors and 
the size of the bars refer to different genetic types.
    And basically, there is some pattern going from the south, 
meaning from about Cape Canaveral, northwards up to Canada. But 
if you look at compare Atlantic and Gulf, you will see the 
differences are larger. The same is true. That is Figure 1. 
More detailed, looking at actual DNA sequence variation 
directly supports again a wide separation of Gulf, and those 
are the green dots on the left, from South Atlantic versus 
North Atlantic. And the final picture is another class of 
markers. Those are nuclear genes. Again, supporting that and 
showing that the Texas population is really out there.
    So to sum that up, I would say basically Gulf and Atlantic 
populations are quite distinct. There is regional variation 
within the Gulf and within the Atlantic not at the level one 
would normally ascribe to sub-species. And as far as Chesapeake 
Bay being different, they do not look, as far as we can tell, 
to be very different from Delaware Bay or actually any other 
North Atlantic populations.
    Finally, I would just like to comment on a point that was 
raised in the petition whether the potentially introduced Asian 
oyster, ariakensis, how it could impact the native oyster by 
hybridization or other means. And as it was mentioned earlier, 
there is evidence that hybrids are not viable. However, the 
eggs and sperm can cross-fertilize, at least in the laboratory. 
So hybrids can be formed, but they don't survive past about a 
week of age.
    That might be a concern if both native and Asian oysters 
are in the water next to each other, if they spawned at the 
same time, and if the eggs and sperm have equal preference for 
each other, you could have the phenomenon of sort of a 
biological control, where basically the sperm of one species 
forms inviable hybrids with eggs of the other and essentially 
gets taken out of the game.
    And there is a work going on now to determine whether that 
is a likely possibility. At this point, I don't think it is. 
But again, we don't have the data.
    And I think that pretty much summarizes my comments. So I 
will call it quits and answer any questions.
    [The prepared statement of Mr. Gaffney follows:]

               Statement of Patrick Gaffney, Professor, 
           University of Delaware, College of Marine Studies

    The eastern oyster Crassostrea virginica inhabits estuarine and 
coastal waters from the Gulf of St. Lawrence to the Yucatan Peninsula, 
tolerating a wide range of temperature and salinity. More than fifty 
years ago oyster biologists postulated the existence of distinct 
``physiological races'', adapted to their local environmental 
conditions. It was not clear, however, whether differences in features 
such as growth rate or spawning season reflected underlying genetic 
differences among populations, or merely acclimation to local 
conditions occurring during an oyster's development.
    During the 1980s, researchers examined geographical patterns of 
variation in tissue proteins and came to the conclusion that oysters 
from Cape Cod to Corpus Christi were genetically very similar, while 
peripheral populations in Nova Scotia and southern Texas (Laguna Madre) 
were distinct. These findings were interpreted to mean that the primary 
oyster population (Cape Cod to Texas) was genetically homogeneous as a 
result of gene flow facilitated by the dispersal of planktonic larvae, 
which spend several weeks in the water column before settling on hard 
surfaces and metamorphosing into juvenile oysters. The northern and 
southern peripheral populations were hypothesized to be genetically 
distinct as a result of long-standing isolation by hydrographic 
features (temperature, salinity and currents).
    This view of a single large unit stock ranging from Cape Cod to 
Corpus Christi was challenged in the early 1990s as the result of 
several lines of evidence. Techniques for assessing genetic variation 
in populations had advanced considerably in the previous decade, and 
now it was possible to examine genetic variability at the DNA level, 
which afforded higher resolution and less bias than the analysis of 
protein variation. A seminal study from the lab of John Avise at the 
University of Georgia using mitochondrial DNA showed a deep genetic 
division between oysters from the Atlantic coast and those from the 
Gulf of Mexico. This division dates back several million years, to the 
late Pliocene and Pleistocene. A similar genetic break between Atlantic 
and Gulf is seen for a variety of organisms, and marks the two 
populations as ``evolutionarily significant units''. This picture has 
been developed further using other genetic markers (nuclear DNA) in 
studies by students of Avise and in my laboratory.
    During the last decade, my laboratory has continued to examine 
geographic variation in both mitochondrial and nuclear genes throughout 
the global range of the eastern oyster. In addition to confirming the 
genetic distinctness of the Gulf and Atlantic populations, we have 
asked whether population subdivision exists within the Gulf and 
Atlantic regions. Experimental evidence that genetically distinct 
stocks or subpopulations might exist within the Atlantic was provided 
in 1991 by researchers at the Rutgers Haskin Shellfish Laboratory, who 
showed that despite six generations of culture in Delaware Bay, oysters 
of Long Island Sound origin maintained their original (Long Island) 
pattern of gonadal development and spawning. My laboratory subsequently 
found evidence of genetic differences between North and South Atlantic 
oysters, using both mitochondrial and nuclear DNA markers. However, the 
difference is much less pronounced than that separating Atlantic and 
Gulf oysters, which may indicate that this pattern of population 
subdivision has developed much more recently, and may be confounded by 
the human movement of oysters up and down the Atlantic seaboard. Figure 
1 shows the distribution of mitochondrial DNA sequence variants 
(haplotypes) detected by restriction enzymes, indicating geographic 
variation in haplotype frequencies with both Gulf and Atlantic regions. 
Along the Atlantic coast, some haplotypes are distributed widely but 
are most common in either the north Atlantic (blue) or south Atlantic 
(red).
    A similar picture emerges from direct sequence analysis of a single 
mitochondrial gene (Figure 2). We see clear separation between Gulf 
Coast and Atlantic haplotypes, while Atlantic coast haplotypes are more 
closely related to each other, and are more widely distributed. For 
example, the common north Atlantic haplotype (marked DB) is found from 
Canada through Virginia. Sequence analysis of other regions of the 
mitochondrial genome show the same pattern.
    Although the currently available data are limited in geographic 
coverage and sample size, nuclear genes tell a similar story. A two-
dimensional plot illustrating genetic relatedness (Figure 3) shows a 
cluster of north Atlantic populations ranging from North Carolina to 
New Brunswick (blue) separate from south Atlantic populations (orange) 
and Gulf Coast populations (green). Outliers include a western Florida 
site, Cedar Key (which also possesses a mix of Atlantic and Gulf Coast 
haplotypes) and Texas.
    My interpretation of the genetic data described here is that the 
species Crassostrea virginica is subdivided into two major 
``evolutionarily significant units'', or subspecies. There is 
additional population structure within each of these, but the degree of 
genetic differentiation is smaller, and the boundaries are currently 
not well defined. The south Atlantic population occupies the coast from 
Cape Canaveral northwards to somewhere in North Carolina (perhaps Cape 
Hatteras, a well-known biogeographical boundary). The north Atlantic 
population ranges from North Carolina to Canada. (Preliminary data also 
suggest that some populations in Canada appear to be genetically 
distinct, probably owing to small size and isolation.)
    We have not found any indication thus far that the Chesapeake Bay 
oyster population is genetically different from oysters found in 
Delaware Bay or other north Atlantic sites.
    On a separate issue, it may be appropriate to comment on the 
possibility of hybridization between the eastern oyster and the Asian 
oyster C. ariakensis, which may be introduced into Chesapeake Bay. We 
have shown that the Asian oyster cannot form viable hybrids when 
crossed with the eastern oyster. Cross-fertilization can be achieved in 
a hatchery, but the embryos die after 7-10 days. Thus the possibility 
of hybridization between the two species seems negligible.
    However, the potential for cross-fertilization does raise concerns 
about interactions among the two species, if the Asian oyster were to 
be introduced. That is, if the two species lived side by side and 
spawned at the same time, it is possible that cross-fertilization would 
result in the loss of large numbers of gametes from both species. For 
this to happen, two things are necessary. First, the two species must 
spawn at the same time, so that the eggs and sperm from both species 
are in the water together. Second, cross-fertilization must be able to 
occur when eggs and sperm from both species are in the water together. 
In this situation, it is likely that eastern oyster eggs will be more 
successful at fertilizing eastern oyster eggs than Asian oyster sperm 
are; if this is the case, gamete mixing will not lead to gamete 
wastage. Experiments are now underway to evaluate reproductive 
interactions among the two species.

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                                 ______
                                 
    The Chairman. Thank you.
    Dr. Hare?

      STATEMENT OF MATTHEW P. HARE, ASSISTANT PROFESSOR, 
         DEPARTMENT OF BIOLOGY, UNIVERSITY OF MARYLAND

    Dr. Hare. Thank you, Mr. Chairman.
    My name is Matthew Hare. I am an assistant professor at the 
University of Maryland, Biology Department, College Park.
    I have been working on eastern oysters since 1991. I am a 
geneticist who uses genes to understand organisms and 
population histories, rather than focusing on the intricate 
workings of the genes themselves. Thus, I will speak of genetic 
markers, and by this, I mean segments of DNA that trace their 
ancestry through the extended pedigree of a population and can, 
therefore, be used as markers of migration and differentiation.
    My testimony will summarize the evidence for distinct 
populations in the Atlantic and Gulf. And then I will provide 
my evaluation of the genetic health of the Chesapeake Bay 
populations based upon recent data.
    The population genetics of oysters has been studied more 
extensively than nearly any other native marine invertebrate in 
U.S. waters. This interest was generated by some of the biology 
that Dr. Gaffney described. Long-lived larvae in the water 
column should lead to a lot of population connectivity.
    Genetic markers, however, have shown every imaginable 
pattern of variation when compared across Atlantic and Gulf of 
Mexico populations, from homogeneity across the regions to 
alternate fixation for different DNA sequences. This latter 
pattern means that for a particular gene, the Atlantic and Gulf 
populations do not share any of the same DNA sequences.
    It is conventional to interpret this genetic exclusivity 
under the assumption that it was produced by genetic drift over 
an extended period of reproductive isolation. Doing so in this 
case leads to an estimate that Atlantic and Gulf populations 
were isolated approximately 1.2 million years ago and evolved 
independently in isolation until relatively recently.
    Many other genes show strong differentiation between 
Atlantic and Gulf oysters. Our preliminary estimates are that 2 
to 4 percent of genes in the oyster genome show extreme 
differentiation between Atlantic and Gulf despite the fact that 
these populations are now reunited and exchanging some migrants 
along the Atlantic coast of Florida.
    In eastern Florida, where the historically Atlantic and 
Gulf populations now converge, genetic variation shows a sharp 
geographic transition. This is illustrated in Figure 1. In a 
species such as the oyster with the capacity for long distance 
dispersal, this sharp and stable genetic transition is only 
possible if physical conditions along eastern Florida create a 
barrier to larval dispersal or strong natural selection 
maintains the genetic distinctions that have evolved between 
Atlantic and Gulf oysters.
    Research in my laboratory is currently focusing on 
measuring the relative importance of these two factors. I 
suspect that both are important, but one recent result will 
illustrate how selection may be differentially favoring 
different oyster phenotypes across this latitudinal transition. 
We compared growth rate of Atlantic-like and Gulf-like oysters 
in two locations, one north of the genetic transition and 
another site south of the transition along eastern Florida.
    Growth rate is widely considered to be an important 
phenotypic determinant of overall fitness in bivalve mollusks, 
with faster growth leading to an advantage in competition for 
space, larger body size, greater fecundity, and a higher 
probability of producing successful offspring.
    Our preliminary results indicated that these two 
populations of oysters each grew faster as juveniles in their 
home environment than in the opposite environment. This is the 
definition of local adaptation. Genetically determined higher 
performance leading to higher relative fitness in one 
environment relative to another. These results provide the 
first experimental indication that oysters in the Atlantic and 
the Gulf of Mexico are locally adapted to their environments, 
but conclusions must remain tentative until the experiments are 
replicated.
    My additional comments pertain to the Chesapeake Bay 
population of eastern oysters. The potentially broad larval 
dispersal of oysters has always led to the assumption that 
Chesapeake Bay oysters, and any regional set of populations for 
that matter, all evolved as a well-mixed interbreeding unit. 
Several published genetic studies supported this assumption 
because evidence for population structure within Chesapeake Bay 
was nonexistent or weak.
    We examined DNA markers with greater sensitivity than had 
been previously examined and found the first evidence that 
oysters in different parts of Chesapeake Bay evolved somewhat 
independently. Specifically, we found that the amount of 
genetic divergence between two Chesapeake Bay oyster samples 
depends on their physical proximity. Two samples in adjacent 
tributaries show greater relatedness on average than two 
samples from different sides of the bay.
    This result is consistent with theoretical expectations for 
continuously distributed populations in which migrants are 
primarily shared among adjacent sites. The implications of this 
result are quite profound for restoration of oysters because 
they imply that even on a time scale of decades, the vast bulk 
of dispersing larvae that successfully settle, grow, and 
reproduce are staying close to home, probably remaining within 
the same Chesapeake tributary where their parents were.
    The good news is that restoration efforts directed locally 
within a tributary or region are likely to have local payoffs, 
rather than having the effort dissipated when larvae scatter. 
The bad news, however, is that this type of population 
structure, coupled with the fact that oyster populations are 
severely reduced and fragmented today in the Chesapeake, makes 
the risks of inbreeding and genetic deterioration of the 
population a serious concern.
    Work in my lab on the Chesapeake Bay oysters shows that 
they have retained large amounts of genetic variation compared 
with populations outside the bay. Thus, the most obvious 
indication of inbreeding risks, the loss of genetic diversity, 
is rejected by these data.
    However, much more subtle inbreeding effects are predicted 
by theory in this species, and these have not yet been tested. 
Also, the increased planting of hatchery-bred stock exacerbates 
the population fragmentation by introducing genetically 
depauperate stocks into the bay.
    Furthermore, the recent move by the Army Corps of Engineers 
and other restoration efforts to plant selectively bred, 
disease-tolerant strains of C. virginica for restoration is 
likely to further lower the overall genetic health of 
Chesapeake Bay oysters.
    Thus, to summarize, I would say that inbreeding is not 
currently the most serious risk to Chesapeake Bay oysters. 
Certainly, environmental degradation and disease take that 
prize. Nonetheless, there is no such thing as ``the end 
justifies the means'' in restoration biology. The degree of 
long-term success that we can expect from restoration will 
depend upon the means that we take to get there. Unfortunately, 
there are no quick, simple, or inexpensive solutions.
    Thank you.
    [The prepared statement of Dr. Hare follows:]

        Statement of Dr. Matthew P. Hare, Assistant Professor, 
 Department of Biology, University of Maryland, College Park, Maryland

    I have been asked to summarize my research on the eastern oyster, 
Crassostrea virginica, as it pertains to the health of Chesapeake Bay 
populations, evidence for population structure, and the scientific 
basis for designating subspecies. I am a geneticist who uses genes to 
understand organisms and population histories, rather than focusing on 
the intricate workings of the genes themselves; Thus, I will speak of 
genetic markers, and by this I mean segments of DNA that trace their 
ancestry through the extended pedigree of a population and can 
therefore be used as markers of migration and genetic drift.
    I have been working on eastern oysters since 1991. Most of what I 
will report today has been published in the peer-reviewed literature by 
myself and others. However, I will also report on NOAA/Sea Grant-funded 
research on Chesapeake Bay oysters that is currently under peer review 
as well as preliminary results that bear directly on the questions at 
hand. My use of the term oyster will always refer to C. virginica 
unless otherwise indicated.
    My testimony will be in three parts. I will begin with a very brief 
summary of those biological attributes of oysters that most directly 
affect their propensity for dispersal, population admixture and 
population viability. Second, I will summarize the evidence for 
distinct oyster populations in the Atlantic and Gulf of Mexico. Third, 
I will provide my evaluation of the genetic health of Chesapeake Bay 
oyster populations.
    Eastern oysters are a very old species, proliferating in estuarine 
waters for the last 20 million years while many other mollusk species 
have come and gone in the western Atlantic. It is remarkable that such 
a successful species can now be imperiled by the cumulative effects of 
human activities, so it is instructive to examine the characteristics 
of oysters that have probably conferred evolutionary success. Eastern 
oysters are extremely fecund, with females routinely producing 25 
million eggs each year. This not only provides a capacity for prolific 
population growth under good conditions, but the genetic diversity 
generated among those eggs by meiotic recombination also buffers 
oysters against environmental heterogeneity. Oysters begin life as a 
larva that feeds in the water column for two to three weeks before 
locating suitable hard substrate and cementing itself for the rest of 
its sessile existence. Depending on tidal and ocean currents, a three 
week duration in the water column could disperse the average oyster 
larva hundreds of kilometers, promoting population connectivity. 
Although there is good evidence that larvae do not drift as passive 
particles, but rather swim vertically to effect retention within tidal 
estuaries, only recently have we had the proper genetic markers and 
analytical power to measure these effects in wild populations. Finally, 
the oyster has a very plastic phenotype. In the same way that it grows 
its shell in whatever configuration the substrate and adjacent 
organisms allow, its physiology and growth is also modified in response 
to the local salinity, temperature, etc. The eastern oyster has 
physiological limits, for example it does not survive well at oceanic 
salinities, but the broad geographic range of this species from New 
Brunswick, Canada to Yucatan, Mexico, speaks to its evolutionary 
success as a generalist.
    The population genetics of oysters has been studied more 
extensively than nearly any other native marine invertebrate in U.S. 
waters. This interest did not stem primarily from the commercial value 
of this species, but rather because of the population biology described 
above, and was further instigated by scientific controversies over 
interpretation of the observed population genetic patterns (Appendix 
1). In total, genetic markers have shown every imaginable pattern of 
variation when compared across Atlantic and Gulf of Mexico (Gulf 
hereafter) populations--from homogeneity across the regions to 
alternate fixation for different DNA sequences. This latter pattern 
means that for a particular gene (for 26 genes, in fact, all on the 
maternally-inherited mitochondrial DNA) the Atlantic and Gulf 
populations do not share any of the same DNA sequences. It is 
conventional to interpret this genetic exclusivity under the assumption 
that it was produced by genetic drift over an extended period of 
reproductive isolation. Doing so in this case leads to an estimate that 
Atlantic and Gulf populations became isolated approximately 1.2 million 
years ago and evolved independently in isolation until relatively 
recently. Many other genes show strong differentiation between Atlantic 
and Gulf oysters--our preliminary estimate is that two to four percent 
of genes in the oyster genome show extreme differentiation despite the 
fact that these populations are now reunited and exchanging some 
migrants.
    In eastern Florida, where the historically Atlantic and Gulf 
populations now converge, genetic variation shows a sharp geographic 
transition (50 to 75 percent gene frequency shift over 20 km; Figure 
1). In a species such as the oyster with the capacity for long distance 
dispersal via larval drift, this sharp and stable genetic transition is 
only possible if physical conditions along eastern Florida truncate 
dispersal distances (i.e., a dispersal barrier) and/or strong natural 
selection maintains the genetic distinctions that have evolved between 
Atlantic and Gulf oysters. Research in my laboratory is currently 
focused on measuring the relative importance of these two factors. I 
suspect that both are important, but one recent result will illustrate 
how selection may be differentially favoring different oyster 
phenotypes across this latitudinal transition. We compared growth rate 
of Atlantic-like and Gulf-like oysters in two locations, one north of 
the genetic transition and another site south of the transition along 
eastern Florida. Growth rate is widely considered to be an important 
phenotypic determinant of overall fitness in bivalve mollusks, with 
faster growth leading to an advantage in competition for space, larger 
body size, greater fecundity, and a higher probability of producing 
successful offspring. After taking into account complicating factors 
such as the density of oysters, our preliminary results indicated that 
these two populations of oysters each grew faster as juveniles in their 
home environment than in the foreign environment. This is the 
definition of local adaptation; genetically-determined higher 
performance leading to higher relative fitness in one environment 
relative to another. These results provide the first experimental 
indication that oysters in the Atlantic and Gulf of Mexico are locally 
adapted to their environments, but conclusions must remain tentative 
until the experiments are replicated with controls for potential 
confounding factors.
    My final comments pertain to the Chesapeake Bay population of 
eastern oysters, arguably the most anthropogenically degraded and 
depauperate population in the species. I speak of it as a population 
out of convenience, not because of any evidence or belief that it is 
demographically isolated from adjacent stocks along the Atlantic coasts 
of Virginia and Maryland. The potentially broad larval dispersal of 
oysters has always led to the assumption that Chesapeake Bay oysters 
all evolved as a single interbreeding unit, at least on an evolutionary 
time frame. Several published genetic studies supported this assumption 
because evidence for population structure within the Bay was 
nonexistent or weak. We examined DNA markers with greater sensitivity 
than had been examined before and found the first evidence that oysters 
in different parts of the Bay evolve somewhat independently. 
Specifically, we found that the amount of genetic divergence between 
two Chesapeake Bay oyster samples depends on their physical proximity. 
Two samples in adjacent tributaries show greater relatedness than two 
samples from different sides of the Bay. This result is consistent with 
theoretical expectations for continuously distributed populations in 
which migrants are primarily shared among adjacent sites. The 
implications of this result are quite profound for restoration of 
oysters because they imply that even on a time scale of decades, the 
vast bulk of dispersing larvae that successfully settle, grow and 
reproduce are staying close to home--probably remaining within the same 
Chesapeake tributary where the parents were. Our results indicate that 
local dispersal is not only a feature of oysters in a few ``trap-like'' 
tributaries, but rather a general characteristic of oyster populations 
in the Chesapeake. The good news is that restoration efforts directed 
locally within a tributary or region are likely to have local payoffs, 
rather than having the effort dissipated when larvae scatter. The bad 
news is that this type of population structure, coupled with the fact 
that oyster populations are severely reduced and fragmented today in 
the Chesapeake, makes the risks of inbreeding and genetic deterioration 
of the population a serious concern.
    Inbreeding in natural oyster populations and its consequences is a 
complicated subject that is under active investigation in several 
laboratories. My work on Chesapeake Bay oysters shows that they have 
retained large amounts of genetic variation compared with populations 
outside the Bay. Thus, the most obvious indication of inbreeding risks, 
the loss of genetic diversity, is rejected. However, much more subtle 
inbreeding effects are predicted by theory in this species and these 
have not been examined. Also, the increased planting of hatchery-bred 
stock exacerbates the population fragmentation by introducing 
genetically depauperate stocks. Furthermore, the recent move by the 
Army Corps of Engineers and other restoration biologists to plant 
selectively-bred, disease tolerant strains of C. virginica for 
restoration is likely to further lower the overall genetic health of 
Chesapeake Bay oysters (with the hope of infusing genes underlying 
disease tolerance into wild stocks, a highly speculative proposition). 
Thus, to summarize, I would say that inbreeding is not currently the 
most serious risk to Chesapeake Bay oysters--environmental degradation 
and disease take that prize. Nonetheless, there is no such thing as 
``the end justifies the means'' in restoration biology; the degree of 
long term success we can expect from restoration will depend on the 
means we take to get there. Unfortunately, there are no simple, quick 
or inexpensive solutions.

Appendix 1
    One controversial hypothesis regarding oysters involved the 
interpretation of genetic patterns of population structure. I summarize 
the controversy here in an effort to clarify the issue and suggest its 
resolution so that it does not unduly muddy the deliberations on 
population distinctions. In Atlantic and Gulf oysters are genetically 
homogeneous when examined with some genetic markers, whereas other 
genes show strong differentiation. It is expected that genes on 
different chromosomes can evolve independently within the same set of 
populations and might be shaped by different evolutionary forces (e.g., 
selection, genetic drift) into various patterns of population 
structure. So pattern variation among markers is not controversial, but 
one study found different levels of Atlantic--Gulf differentiation in 
two classes of markers (protein-level polymorphisms in metabolic 
enzymes versus polymorphisms in nonfunctional DNA). I think it is fair 
to say that subsequent work has rejected the hypothesis that certain 
classes of genetic marker are shaped by distinct evolutionary forces in 
oysters. Instead, it appears that the evolutionary history of these 
populations, in which Atlantic and Gulf oysters evolved in isolation 
for a considerable period and recently reunited, has created widely 
varying patterns of differentiation among genes.

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                                 ______
                                 
    The Chairman. Thank you.
    I am going to begin with Dr. Kraeuter. You testified that 
seed was imported into the Delaware Bay since 1829. How can the 
Atlantic coast eastern oyster be a separate species if you have 
been importing seed into the Delaware Bay since 1829?
    Dr. Kraeuter. I will have to defer that to my genetic 
colleagues over here to explain it. But massive quantities of 
oysters have been moved up and down at least the mid-Atlantic 
and North Atlantic coast since the middle 1800s. We are talking 
about millions and millions of bushels being moved in any one 
year.
    We have records from the Delaware in the late 1800s, where 
a million to 2 million bushels of Chesapeake seed arrived in 
Delaware Bay. Chesapeake, there are records of Delaware seed 
moving down to Chesapeake Bay. We also had oysters from Long 
Island Sound and the eastern shore of Virginia moving into 
Delaware Bay. These were sustaining the industry because 
Delaware Bay, in and of itself, could not produce enough seed 
even in the 1800s to sustain the growth of the industry. In 
that lower portion of the bay, you saw those planted grounds.
    This was all done by sailboats. Remarkable. But I will let 
the geneticists tell you how you could sustain that population 
differentiation in lieu of those kind of movements.
    The Chairman. Somebody want to take a shot at it?
    Mr. Gaffney. I will take a shot at it. Basically, most of 
that movement was within the Atlantic, and most of it was 
within the North Atlantic, if we define North Atlantic as from 
Cape Hatteras north. So that was movement of genetically 
somewhat similar oysters. We are not talking about moving Gulf 
oysters around Florida by sailboat up to replenish the Delaware 
or Chesapeake Bay's or New England.
    The Chairman. But if I could stop you there, I have been 
told that in an effort to develop a disease-resistant oyster 
that Gulf oysters have also been planted in the North Atlantic.
    Mr. Gaffney. Yes. Small numbers have been. And----
    The Chairman. When you say ``small numbers,'' are we 
talking millions of bushels or----
    Mr. Gaffney. We are talking millions of oysters, but in an 
oyster world, that is a small number. So you have to just add 
on lots of zeroes to everything.
    We are seeing the genetic evidence suggests that whatever 
Gulf oysters have been brought into the Chesapeake have not 
left many offspring or, for that matter, hardly any, I should 
say. So you can still easily tell them apart.
    The Chairman. You are the expert on this, and I am not a 
scientist. But in my business, if I bring in a Brahma bull and 
put him with my cows, I got a different sub-species all of a 
sudden. And they look a lot different, and they are still cows, 
but they look different because I put another bull in. And if I 
put an Angus bull the next year, I get something completely 
different coming in.
    Now if you are planting Gulf oysters over here and a 
different North Atlantic oyster over here, in that area, you 
are going to end up with a different sub-species, or I think 
the term is an evolutionarily significant unit that develops 
there. Is that not accurate?
    Mr. Gaffney. That is true if they lived. But if they don't 
live, then they have no impact.
    The Chairman. If they interbreed at all, you have changed 
it?
    Mr. Gaffney. Right. They have to make it to the point of 
interbreeding. They have to survive a year or two. Most oysters 
don't make it, and we are just not seeing----
    The Chairman. But if any do, it does have an impact on what 
you end up with, the population in that area?
    Mr. Gaffney. It would. Sure. And we are not seeing any 
evidence of that happening.
    The Chairman. Dr. Hare?
    Dr. Hare. If I could on that same question? The 
significance of the preliminary data I described suggesting 
local adaptation of Atlantic versus Gulf oysters is that even 
if oysters brought from the Gulf into the Atlantic, into 
Chesapeake Bay, say, survived to reproduce, those genes are not 
well adapted to the environment in Chesapeake Bay.
    And so, to the extent that we have populations of oysters 
that are locally adapted, I think you could have quite a lot of 
human-induced migration, not really perhaps introducing some 
new alleles, some new genetic variation. But selection is a 
very strong sieve through which that is going to maintain the 
integrity of what is the populations in Chesapeake Bay and 
Delaware Bay.
    Now I think there is a lot more work that needs to be done 
to understand the degree to which selection is enforcing those 
local properties. But I don't think it follows that if there is 
human-induced migration that it necessarily eliminates the 
integrity of a population.
    The Chairman. Well, like I said, I am no scientist, but 
after watching the cattle industry my whole life, I can tell 
you that even if you put a bull in that doesn't necessarily fit 
with the climate and the area that I live in and not many of 
the offspring survive, two or three generations down, you are 
going to end up with one that looks like that bull.
    And this is what my concern is because they start talking 
about listing different populations, the possibility of listing 
different populations as threatened or endangered. And with 
what you are able to do in looking at DNA and differentiating 
between populations, we end up with a situation like we have on 
the West Coast with the salmon, where every river becomes an 
evolutionarily significant unit, and those end up being listed 
as threatened.
    And we end up with, you know, 50 or 100 different 
populations of oysters, which could either be listed as 
threatened or endangered. And whereas I think everybody would 
agree, when we have gotten millions or billions of oysters that 
as a population, they are probably not endangered. But if you 
start breaking it down enough, you might find one that is.
    And that is what my concern is. Because you guys can break 
this down to which ones came out of which little bay, if you 
start doing your DNA testing and everything else. And that 
significantly changes the entire debate.
    Dr. Hare. I think, sir, that is a very reasonable concern, 
especially with species in which there is no clear line that 
you can draw, say, between Chesapeake and Delaware oysters or 
Chesapeake and North Carolina, although there is a very clear 
line down in Florida between Atlantic and Gulf.
    However, I would only comment that I think the Endangered 
Species Act is explicit with respect to vertebrates that it not 
be applied in a trivial sense when you apply the distinct 
population segments. So a one-time storm would not apply. And 
its application then, it becomes a judgment call.
    And geographic settings which have particularly degraded 
environments and habitats might justify then a different 
treatment than another population that has a better habitat. So 
it just becomes a judgment call.
    The Chairman. The original language in the committee report 
on the amendments on the population segments stated that the 
Congress saw great potential for abuse and cautioned that it be 
used very sparingly, which is one of the reasons why 
invertebrates were left out of that because you could end up 
with every bay, every little population being considered a 
separate evolutionarily significant unit. And I have concerns 
about where we end up once we start going down this path, which 
is one of the reasons why we are doing the hearing on the 
eastern oyster today is because this is something that 
significantly impacts the management in every single bay where 
those oysters are.
    So as this moves on, we are going to have to really go 
through this because it does have an impact, and it is 
significant. And you know, a lot of folks on the East Coast 
don't realize how this can be applied and where we end up with 
as those of us from the west have seen that they can really 
stretch this thing out if they want to and control a lot of 
things under the Endangered Species Act.
    I want to recognize Mr. Gilchrest.
    Mr. Gilchrest. Thank you, Mr. Chairman.
    We just want to restore the healthy abundance of the oyster 
to the way it was when John Smith came. That is not impossible, 
is it? I will ask the scientist. Just kidding on that question.
    The Chairman. They produce billions of them.
    Mr. Gilchrest. It should be trillions. But this is a good 
hearing, Mr. Chairman. A lot of things are coming to light. I 
have a question. I am going to go back to MSX and Dermo for a 
minute. And I guess, Dr. Hare, you can answer this, or anybody 
on the panel can take a shot at it. First of all, do you have 
MSX in the Gulf of Mexico?
    Dr. Ray. No.
    Mr. Gilchrest. Okay. You don't have that, but you have 
Dermo in the Gulf of Mexico?
    Dr. Ray. We have lots of it.
    Mr. Gilchrest. You have lots of Dermo. Are there any 
oysters down there resistant to Dermo?
    Dr. Ray. No. There is said to be some in South Bay that it 
didn't occur, but that is an absolute fallacy.
    Mr. Gilchrest. Oh, so there is no oysters anywhere----
    Dr. Ray. I need to tell you. I have worked on Dermo since 
1950, and I am still working on it.
    [Laughter.]
    Mr. Gilchrest. Okay. Will genetic diversity help with 
resistance to MSX and Dermo?
    Dr. Ray. Well, I don't know. The only thing that I know 
that will help is the good Lord giving ample rainfall.
    Mr. Gilchrest. Hmm. Well, we have had a lot of rain in the 
last few days.
    Dr. Ray. Well, but I hope later I will be able to make a 
comment about that.
    Mr. Gilchrest. All right.
    Dr. Hare. That rain probably is helping this year. Broadly 
speaking, yes, genetic diversity is what a species needs to be 
able to respond to any insult, disease being one of them. The 
epidemiology, however, of this disease in oyster populations is 
such that anywhere where oysters occur, they are going to use a 
gradient of habitats, some of which Dermo is very prevalent in 
and has a strong intensity of infection. Others, where there is 
a reserve, a refuge from the parasite.
    And that dynamic between those populations makes it very 
difficult for oysters as a species or as a population to evolve 
resistance. So at least in theory, it is understandable why 
Dermo has been persisting without the evolution of resistance.
    Mr. Gilchrest. I guess taking the relatively short period 
of time that they have been exposed to Dermo, I guess since the 
1950s or the 1930s, whichever one, MSX and Dermo, the oyster 
hasn't had the time to evolve or gain resistance to those two 
diseases?
    Dr. Hare. Sir, I don't think it is known how long Dermo has 
been in the Gulf of Mexico.
    Dr. Ray. I can give some comments. Oh, excuse me.
    Dr. Hare. Please.
    Dr. Ray. At the time of the big oyster mortalities in the 
late 1940s before Dermo was discovered, the view was that 
something had happened in the oil operation that had promoted 
the development of Dermo. So Dr. Mack Owen had some oysters 
that were at a world fair in 1919 in Chicago, with prime 
oysters, and they were in the Cabildo Museum. So he had those 
sectioned after they learned about Dermo, and there is definite 
records that Dermo occurred in Louisiana oysters as far back as 
1919.
    Mr. Gilchrest. The oysters, if given enough time, can 
develop resistance to MSX and Dermo. I am going to assume that. 
Does MSX and Dermo develop resistance--I mean, get stronger as 
time goes on then, that it makes it more difficult to develop 
resistance to it?
    Dr. Ray. Well, I know it has been said that there are 
different strains of Dermo, some more virulent than others. And 
it has been said, well, maybe the Gulf oysters are more 
resistant to Dermo or our Dermo is not as virulent.
    But I think one of the reasons why, our oysters can reach 
market size within 18 to 24 months, and they just simply grow 
faster, and I think they can just outgrow the disease. And not 
every oyster in a population is infected. But I don't think 
anyone has been able to pick the ones that survive long periods 
of disease, like 5 or 6 years, and take those and then from 
that develop a genetic or find those particular individuals 
that have survived for 5, 6 years.
    Always in the intertidal zone, there are oysters that 
survive. But efforts to take those and then use those as 
broodstock has not resulted in a resistant strain of oyster, to 
my knowledge.
    Mr. Gilchrest. Thank you.
    Dr. Kraeuter. Can I make a comment on the resistance? I 
can't say too much about Dermo. But in Delaware Bay, where MSX 
was first found in the middle 1950s, we had a major epizootic, 
and we began a breeding program. And the breeding program has 
resulted in development of strains that resist MSX. They are 
not immune to the disease, but they resist it and persist much 
longer.
    As I mentioned in my testimony, there was another MSX 
epizootic in 1985, and there are a number of individuals in our 
laboratory who suggest that second epizootic has increased the 
resistance in the native population. The problem is it takes a 
lot of time, and you have to have these epizootics to have that 
because you have to reduce that population down.
    And the base population is arrayed along a salinity 
gradient. So the disease does not affect the entire population 
within a bay. If you have a gradient like we have in Delaware 
Bay, the fresh water, as Sammy has said, has a great deal of 
influence on what happens in the oyster population. So this is 
not a simple one-to-one kind of a thing.
    And whether you can develop resistance to a disease that 
apparently has been with the native oyster for a long period of 
time, like Dermo, as opposed to an exotic disease, which is 
MSX, is an interesting scientific question in my mind. And I 
quite frankly don't know how to answer it. But----
    Mr. Gilchrest. Thank you.
    The Chairman. Mr. Costa?
    Mr. Costa. Thank you very much, Mr. Chairman. I, too, want 
to commend you for your efforts in putting this hearing 
together this afternoon.
    I would like to address my question to Dr. Hare and Mr. 
Gaffney, and it really kind of follows the line of questioning 
that the Chairman was asking just a moment ago with regards to 
in the broader context how the Endangered Species Act is 
applied.
    And it has been the troubling part that I have dealt with 
in California, but I know it has been an issue around the 
country that when we look at a species that is listed, in this 
case we are talking about the eastern oysters--it is 
interesting to see how everyone pronounces ``oyster'' a little 
bit differently depending upon where you are from. But I think 
we are all talking about the same thing.
    And that is once we list something, and how the Act works 
in our country, and then how we develop a recovery plan. And I 
find it particularly perplexing and frustrating, having carried 
legislation that has provided literally hundreds of millions of 
dollars for restoration efforts in the San Francisco Bay delta 
and elsewhere in California, between the competing efforts and 
what we know now today between native and non-native species, 
which I think we were touching upon as it relates to the East 
Coast.
    It would be nice in a perfect world if we could go back 100 
years, and I think that was stipulated earlier in the line of 
questioning. But where do we draw the line as policymakers in 
terms of our best efforts when we talk about, in this case, 
limited Federal dollars in terms of recovery in the efforts of 
species where non-native species have been introduced? And we 
are attempting to try to correct nature, so to speak, or go 
back to a time when man had little impact or any impact.
    It just seems to me some of it is the art of the possible 
and some of it is not. And where can we conclude in the law 
under the Endangered Species Act as to that to which is 
achievable under recovery and that which is not? Who wants to 
take a crack at that? Mr. Gaffney or Dr. Hare?
    Dr. Hare. Um.
    Mr. Costa. It is an easy question.
    Dr. Hare. Yes.
    [Laughter.]
    Dr. Hare. I don't think I would want to stake the claim 
here of what restoration biology can accomplish because it is a 
rapidly growing and advancing field, both in marine and 
terrestrial systems. I think we can accomplish a lot more than 
we are currently accomplishing in Chesapeake Bay with the 
oysters and with the estuarine habitats and organisms in 
general. So I am not sure how to answer your question more 
specifically.
    Mr. Costa. Well, I mean, we are talking about a Federal law 
here that has been obviously under tremendous scrutiny. We are 
talking about Federal dollars that are limited. We have States 
that are applying State resources. We are often, in our habitat 
conservation plans or recovery efforts, trying to put more 
resources from the private sector when we require mitigation. 
It just doesn't seem like that is enough of an answer, that we 
can do better.
    Dr. Hare. Well, it seems to me that what I got----
    Mr. Costa. I mean, how do I define ``better'' if we are 
looking at a change in the law?
    Dr. Hare. Well, from the discussion here today, it seems to 
me that the challenge that you have in revising the ESA is in 
establishing enough flexibility to allow for a situation such 
as the oyster in which you have a very broad distribution, a 
very generally hearty organism, but is suffering extremely in 
some portions of its range.
    And on the other hand, you don't want it to be abused. And 
so, you have to put in elements that allow for judicious use. I 
don't know a way out of that conundrum.
    Mr. Costa. But you understand, for those of us who on some 
occasions have been critical of the Endangered Species Act, 
where we are struggling in terms of how we provide that 
flexibility. Where do you cut your losses, I guess, is another 
way to look at it.
    Mr. Gaffney, do you want to take a stab at it?
    Mr. Gaffney. Well, it is dangerous to ask a scientist to 
opine on policy, but I guess it works the other way, too. I 
guess I would say that----
    Mr. Costa. I am not trying to opine on the science.
    Mr. Gaffney. No. I suppose the one area that could use 
addressing is there seems to be a resistance or a concern about 
a species being subdivided into sub-species or segments of 
interest. It seems to me, as sort of novice in this area, that 
the criteria for evaluating significance of these distinctions 
are not really well defined.
    I would say that things that are very clearly sub-species 
that have had a long evolutionary separation are genetically 
distinct and, therefore, provide separate reservoirs of genetic 
diversity. Those, under virtually any imaginable circumstance, 
merit protection.
    But when you get to the lower levels of distinction that 
are increasingly more possible with all the DNA techniques we 
now have, then you have to have some sort of criteria for 
saying, well, yes, I can tell an oyster from this bay from one 
from that bay. Or maybe better said, I can tell a population. 
If you give me 100 oysters, I can tell you which bay they came 
from.
    That is not the same as saying those genetic differences 
are highly important from an evolutionary or ecological or 
biological sense. It may be the case, but it is not guaranteed. 
So that doesn't seem to have been well addressed, and so that 
would be my comment on how things could be improved.
    Mr. Costa. Thank you. I was going to follow up, but I will 
just let it go.
    The Chairman. Mr. Gilchrest?
    Mr. Costa. There is a number of places I could go. But----
    The Chairman. Mr. Gilchrest?
    Mr. Gilchrest. Thank you, Mr. Chairman.
    Two quick questions. One, how do you increase genetic 
diversity in the population in the Chesapeake Bay, and are 
reefs better than bars? Actually, I have more than two 
questions. How do you increase genetic diversity? Are reefs or 
oyster reef better than an oyster bar?
    Can you create oyster reef corridors? You make I think some 
reference to that, Dr. Hare, or maybe I just misread you. 
Oyster corridors, can you create an oyster reef corridor in the 
Chesapeake Bay, and would that help genetic diversity?
    Dr. Hare. This species has more genetic variation in its 
natural state than most every other species on the planet. It 
is an extremely genetically diverse organism, partly because of 
its very large fecundity and also because of the large 
population sizes. So I don't think there is a problem with 
having enough genetic diversity. In fact, more probably 
wouldn't help. You would add as much bad stuff as good.
    I think we certainly want to keep it from losing genetic 
diversity in local areas where we want it, where it needs to be 
able to adapt to----
    Mr. Gilchrest. Is there a threshold of numbers that would 
do that?
    Dr. Hare. That is not an easy question to answer. It is 
shades of gray.
    Mr. Gilchrest. I see. Are reefs better than bars?
    Dr. Hare. Can you define the two?
    Mr. Gilchrest. An oyster reef, something that, you know, 
starts at the bottom and goes up 10, 12, 20 feet. A regular 
reef, oyster reef as opposed to an oyster bar that we have 
mostly in the Maryland portion of the bay, where it is just 
flat.
    Dr. Hare. As far as I know, that distinction is less 
important than having a living reef. Having a reef in which 
oysters are growing in their natural form. Also they are 
forming a matrix that a lot of other species use, and that 
keeps accruing so that the reef grows. I think that can happen 
on both a reef and a bar.
    Mr. Gilchrest. I think Virginia, for example, I think has 
some 100 or they are working toward 100 oyster reef sanctuaries 
in their portion of the Chesapeake Bay.
    Dr. Ray, and I am sorry for these quick answers and 
questions. You made a comment, and I would like the gentlemen 
from Delaware and Maryland to comment on it. You made a 
comment, Dr. Ray, about your opposition to introducing the 
Asian oyster to the Chesapeake Bay.
    Dr. Ray. Yes, sir.
    Mr. Gilchrest. Would the two gentlemen from Delaware and 
Maryland like to respond to Dr. Ray's opposition to that 
introduction?
    Dr. Hare. I completely agree with his views.
    Mr. Gilchrest. Oh, well.
    Mr. Gaffney. I am firmly on the fence.
    Mr. Gilchrest. Firmly on the fence?
    [Laughter.]
    Mr. Gilchrest. Yes, sir?
    Dr. Kraeuter. I am still waiting for more evidence, myself. 
I think it is in light of today's discussions about genetics, I 
find it interesting that on one hand we are saying, oh, this 
species is going to be introduced and take over, and it is 
going to destroy the genetic diversity of the eastern oyster, 
even though, generally, it can't interbreed. And yet we are 
saying you can move massive numbers of eastern oysters into an 
area, and they don't survive well enough to interbreed with 
their own species.
    So it looks like we are talking out of both sides of our 
mouths, which is not unusual for scientists. But there are some 
real problems here that we are not addressing very well, and it 
comes down to definitions.
    I, quite frankly, have been sitting here biting my tongue. 
I think the Endangered Species Act is an offense to biology in 
that you are not talking about species. If you are going to 
actually look at the legislation, decide what level of genetic 
diversity you want to call the endangered whatever act.
    Mr. Gilchrest. I just want Dr. Ray to come in. I appreciate 
that. Thank you very much. And I apologize for interrupting. 
But you have about 30 seconds, Dr. Ray. Can you tell us in two 
sentences why the Asian oyster is not a good fit for the 
Chesapeake Bay?
    Dr. Ray. Well, I am concerned about what the mud-worm, 
Polydora, will do to it, particularly in the summertime. And we 
have some history of what a semi-species, fast-growing, cold 
water, and a thin-shelled species was brought into Louisiana in 
the early 1930s. I am just saying I think the mud-worm itself, 
much has been said about disease resistance and what not. But I 
just think that when it is all done, particularly in the 
summertime, that the mud-worm--and I know nothing about the 
oyster, that particular oyster.
    I am just saying based on the experience with the Pacific 
oyster. And in areas such as Australia and places, mud-worms 
have been a serious problem, and oysters have had to be lifted 
off the bottom to be grown in culture. So I see that as a 
detriment to bringing it in and will probably not be 
successful. That is simply an opinion of an old man.
    Mr. Gilchrest. Well, thank you very much, sir.
    Thank you, Mr. Chairman.
    The Chairman. Your opinion is important. That is why we 
invited you.
    I want to thank this panel for your testimony. It was very 
helpful, very interesting, and there may be follow-up 
questions. I know I have a few additional that I would like to 
ask, and I will submit those to you writing. And if you could 
answer those in writing so that they can be included in the 
hearing record, I would appreciate it. Thank you.
    The Chairman. Let me dismiss this panel and call up our 
third panel: Dr. Jim Wesson, Mr. William S. Perret, and Mr. 
Chris Judy.
    If I could have you remain standing and raise your right 
hand?
    [Witnesses sworn.]
    The Chairman. Thank you. Let the record show they answered 
in the affirmative.
    Welcome to the Committee. I apologize for the lateness. I 
realize that you have been sitting here a long time. So we are 
going to begin with Dr. Wesson.

    STATEMENT OF JAMES A. WESSON, PH.D., DEPARTMENT HEAD OF 
   CONSERVATION AND REPLENISHMENT, VIRGINIA MARINE RESOURCES 
                           COMMISSION

    Dr. Wesson. Good afternoon, and thank you.
    Just starting off, I am the resource manager for the 
oysters in Virginia's part of the Chesapeake Bay, which is when 
you are talking about this at a sub-species level, we will be 
the epicenter for the effects on us.
    And my agency, which is the Virginia Marine Resources 
Commission, as well as the Commonwealth of Virginia, strongly 
opposes the listing of the eastern oyster as either endangered 
or threatened. We don't really consider the eastern oyster as a 
separate subspecies, and we see no evidence that the entire 
species is being in danger of extinction within the bay nor any 
part of its native range.
    The eastern oyster still supports a significant commercial 
industry within the Chesapeake Bay. It is actively managed by 
the Marine Resources Commission to ensure both ecological and 
commercial benefits from the oyster and is the focus of 
significant Federal, State, and private efforts to restore 
current population levels to greater abundance.
    As was mentioned earlier, we have 240,000 acres of public 
oyster grounds in Virginia's portion of the bay, and the 
coastal embayments of our eastern shore. We also have more than 
100,000 acres of State bottom that is managed by private 
entities under leases.
    Obviously, if you have my written testimony, oyster 
landings have declined dramatically, especially over the last 
45 years. But if you look at the little chart that I put in 
there for you, there is a lot of misconceptions on the decline. 
And one of those comes from the difference in the periods of 
the decline. From the late 1800s through the early 1920s, the 
decline in oysters in our part of the Chesapeake Bay was 
definitely from harvesting.
    And the reason was the shells had value, and the shells 
were used on land and were not returned to the water. And 
because of that, the harvesting actually removed the oyster 
reefs. After the 1920s and we got a better road system and we 
could get rocks in the fall line, the Commission of Fisheries, 
which was the precursor of our agency and private industry, 
began following the advice of scientists and began putting the 
shells overboard.
    And if you look at the period of the 1920s through the late 
1950s, through our husbandry in putting oyster shells back 
overboard, the oyster populations were actually increasing. And 
if you extrapolate out to the day, had nothing happened, we 
probably would have been at the levels that we had seen prior 
to the 1800s.
    But in the 1950s, as we have all mentioned, we had an 
oyster disease that was introduced, which began the rapid and 
sustained decline in oyster populations and oyster production 
to the low levels that we currently have in Virginia's bay 
waters. That newly introduced disease, which was called MSX, in 
combination with our native Dermo, almost have totally 
decimated the oyster industry, with harvests today reduced to 
less than 1 percent of only 45 years ago.
    The small oyster processing industry that remains in the 
Commonwealth survives almost exclusively from the processing of 
imported oyster shell stock, primarily from the Gulf States. 
And the Virginia shucking industry remains at a competitive 
disadvantage in the marketplace due to the costs of 
importation, and more shucking houses close with each passing 
year. The oyster shucking industry in the Chesapeake Bay is far 
more endangered or threatened in its existence than the oyster 
itself.
    Our agency along with the Virginia Institute of Marine 
Science have jointly monitored oyster stocks quantitatively 
beginning in the early 1990s. We actually have a quantitative 
estimate of the entire standing stock in the Chesapeake Bay. 
And though the populations are low relative to historical 
levels, we still have billions of oysters left in the 
Chesapeake Bay.
    The intensity of the oyster disease is controlled primarily 
by salinity. And over the past four decades, almost all of the 
historically productive oysters grounds in Virginia have been 
impacted by disease. But primarily, the impact is on the large 
oysters. Small oysters have continued to spawn and maintain the 
population of oysters throughout all of Virginia's historic 
range.
    Spat sets have been dependable throughout all of the oyster 
grounds in Virginia's portion of the Chesapeake Bay. And though 
populations are low in comparison to historic numbers, 
population levels are stable and trend more in relation to 
rainfall and salinity than they do from either harvest or the 
significant oyster restoration efforts that we have been doing 
for the past 15 years.
    VMRC and VIMS have worked together on countless strategies, 
research projects, and restoration programs to combat the 
disease-controlled decline in oyster populations since the 
1950s. The private oyster industry has invested and lost many 
millions of dollars in strategies to grow oysters within the 
disease-dominated conditions. Private investment in on-bottom 
aquaculture has mostly been suspended because of the inherent 
risks and losses in producing market-sized oysters.
    Selective breeding for disease resistance began in the 
early 1960s at VIMS, and it continues to the present time. 
Eastern oysters from throughout its geographic range that have 
potentially exhibited disease tolerance to one or the other 
diseases have been crossbred and tested in the Chesapeake Bay. 
And certain genetic crosses have shown enough tolerance to 
entice modest efforts toward intensive oyster aquaculture.
    Results have been mixed in the Chesapeake Bay, but a small 
industry has begun for the more lucrative half-shell or raw bar 
trades. Intensive aquaculture has remained uncompetitive for 
the shucking industry because of the availability of imported 
shell stock and the lower price margin due to the competition 
from oysters processed locally in the Gulf States and from the 
West Coast.
    The oyster restoration effort has been especially ambitious 
since the 1990s with, as Representative Gilchrest mentioned, we 
have three-dimensional oyster reef restoration projects, and we 
have set aside large areas as sanctuaries. We have had strict 
control of the wild harvest. The 3-D reef restoration and 
sanctuary program implemented by the Marine Resources 
Commission has become the model for the bay-wide oyster 
restoration efforts.
    The 3-D reef restoration sites duplicate oyster reefs that 
were observed prior to harvesting activities. These 
reconstructed reefs improve the juvenile oyster survival. They 
allow oysters to grow faster, and they actually physically 
position the oysters close to one another to allow better 
fertilization success. Broodstock oyster populations on these 
reefs have been allowed to either develop naturally or have 
actually been augmented by genetic stocks that have disease 
resistance.
    Since the early 1990s, more than $40 million in State, 
Federal, and private money to rebuild these reefs have been 
spent, and there are more than 100 of these reefs throughout 
the Chesapeake Bay. The significant infusion of money and 
effort to rebuild oyster reefs in the short term has not 
resulted in any immediate increase in oyster populations in the 
bay.
    Since the reef restoration efforts began in 1993, the 
standing stock of native oysters has fluctuated more closely 
with rainfall than with the restoration activity. Oyster 
diseases still dominate the survival of large oysters, as you 
can see in some of the charts that I have included in the 
testimony.
    Newly constructed reefs are rapidly colonized by oysters in 
all areas. The oyster grow very fast for the first 2 years, but 
most of the oysters, even on the ideally constructed sanctuary 
reefs, succumb to disease within 2 to 4 years. Virginia remains 
committed to the restoration of the native oyster populations 
and to the restoration of the commercial fishery. Restoration 
efforts continue to adapt based on the results from monitoring, 
and research continues to try to find solutions to counteract 
oyster disease.
    Oyster populations, though at historically low levels, 
remain stable and are distributed throughout the historic 
range. There is no evidence that the eastern oyster in the 
Commonwealth is either endangered or threatened at this time.
    [The prepared statement of Dr. Wesson follows:]

  Statement of James A. Wesson, Ph.D., The Virginia Marine Resources 
      Commission, Division of Fisheries Management, Department of 
                     Conservation and Replenishment

    The Virginia Marine Resources Commission and the Commonwealth of 
Virginia strongly opposes the listing of the eastern oyster 
(Crassostrea virginica) as either a threatened or endangered species. 
We do not consider the eastern oyster in the Chesapeake Bay as a 
separate subspecies. We see no evidence of the entire species being in 
danger of extinction within the Chesapeake Bay nor any part of its 
native range. The eastern oyster still supports a significant 
commercial industry within the Chesapeake Bay, is actively managed by 
the Marine Resources Commission to insure both ecological and 
commercial benefits from the oyster, and is the focus of significant 
federal, state, and private efforts to restore current population 
levels to greater abundance.
    There are more than 240,000 acres of public oyster grounds in 
Virginia's portion of the Chesapeake Bay and the coastal embayments of 
the Eastern Shore. There is a new map atlas of the 200,000 acres of 
public oyster grounds in Chesapeake Bay that has recently been 
completed which is available on the Virginia Institute of Marine 
Science website (www.vims.edu/mollusc/oyrestatlas/index.htm). 
Significant oyster populations exist throughout all of these public 
grounds. Additionally, nearly 100,000 acres of state bottomlands are 
leased by private entities and oyster aquaculture operations are 
conducted on the private leases.
    Obviously, oyster landings have declined dramatically over the past 
century, but most dramatically in the last 45 years.

[GRAPHIC] [TIFF OMITTED] T2446.012


    For the period from 1880 through the 1920's, the decline in harvest 
was directly related to harvesting activities. The value of the 
harvested shell as a building commodity on land resulted in significant 
reef loss because the shells were not placed back in the bay once 
harvested. Oyster populations declined significantly with the loss of 
habitat. Oyster restoration began when the Commission of Fisheries and 
the private oyster industry in Virginia began putting shells back on 
the oyster ``rocks'' or reefs in the late 1920's. At that time, the 
value of the shell as a building material had declined due to the 
availability of quarry stone and a better highway transportation system 
to the bay shore communities. As shells were returned to the oyster 
rocks, oyster populations and commercial production increased 
significantly between the late 1920's and the 1950's. Oyster management 
and private oyster husbandry maintained and increased oyster 
populations and Virginia became a worldwide leader in oyster 
production.
    In the late 1950's, a new oyster disease was introduced to the 
Delaware and Chesapeake Bays, which began the rapid, and sustained 
decline in oyster production and population levels to the low levels 
that we currently have in Virginia's Bay waters. The newly introduced 
disease called MSX, in combination with the native disease called 
DERMO, have totally decimated the oyster industry, with oyster harvest 
reduced to less than one percent of levels only 45 years ago. The small 
oyster processing industry that remains in the Commonwealth survives 
almost exclusively from the processing of imported eastern oyster 
shellstock primarily from the Gulf States. The Virginia shucking 
industry remains at a competitive disadvantage in the marketplace due 
to the costs of importation, and more oyster shucking houses close with 
each passing year. There were more than 400 shucking houses in Virginia 
in the late 1950's, while currently no more than 15 still continue any 
significant amount of shucking activity. The oyster shucking industry 
in the Chesapeake Bay is far more endangered or threatened in its 
existence than the oyster itself.
    The Virginia Marine Resources Commission (VMRC) and the Virginia 
Institute of Marine Science (VIMS) have jointly monitored oyster stocks 
in a quantitative fashion since 1993. We have a quantitative estimate 
of the standing stocks of oysters throughout Virginia's portion of the 
Chesapeake Bay. Though the populations are low relative to historic 
numbers, billions of oysters remain on the public beds. The intensity 
of the oyster disease is controlled primarily by salinity. Over the 
past four decades almost all of the historically productive oysters 
grounds have been impacted by disease, with the impact primarily on the 
large oysters. Small oysters have continued to spawn and maintain the 
population of oysters in all of the historic range. Spatsets have been 
dependable throughout most of the oyster grounds in Virginia's portion 
of the Chesapeake Bay. Though populations are low in comparison to 
historic numbers, population levels are stable and trend more in 
relation to rainfall and salinity changes in the Bay, rather than from 
either harvest or the significant effort that has been devoted to 
restoration during that same time period.
    The VMRC and VIMS have implemented countless strategies, research 
projects, and restoration programs to combat the disease-controlled 
decline in oyster populations since the 1950's. The private oysters 
industry has invested and lost many millions of dollars in strategies 
to grow oysters within the disease dominated conditions in the Bay. 
Private investment in ``on-bottom'' aquaculture has mostly been 
suspended because of the inherent risks and losses in producing market 
sized oysters. Selective breeding for disease resistance began in the 
early 1960's at the VIMS, and it continues to the present time. Eastern 
oysters from throughout its geographic range, that have potentially 
exhibited ``disease tolerance'' to one or the other diseases, have been 
crossbred and tested in the Chesapeake Bay. Certain genetic crosses 
have shown enough disease tolerance to entice modest efforts toward 
intensive oyster aquaculture. Results have been mixed in the Chesapeake 
Bay, but a small industry has begun for the more lucrative ``raw or 
half-shell'' trades. Intensive aquaculture has remained uncompetitive 
for the shucking industry because of the availability of imported shell 
stock and the lower price margin due to the competition from oysters 
processed locally in the Gulf States and from the Pacific oyster 
industry on the West Coast.
    The oyster restoration effort has been especially ambitious since 
the early 1990's with a combination of 3-Dimensional (3-D) oyster reef 
reconstruction projects, the setting aside of large acreage of 
sanctuary areas, and the strict control of wild oyster harvest. The 3-D 
oyster reef restoration and sanctuary program implemented by the Marine 
Resources Commission has become the model for baywide oyster 
restoration efforts. The 3-D reef restoration sites duplicate oyster 
reefs that were observed prior to harvesting activities. These 
reconstructed reefs improve juvenile oyster survival (resulting in 
improved spatset), allow oysters to grow faster (resulting in improved 
fecundity or reproductive capacity) and physically position oysters in 
the most optimal configuration for spawning success (resulting in 
improved fertilization rates). Broodstock oyster populations on these 
reefs have been allowed to either develop naturally, or in many cases, 
have been augmented with genetically selected oyster broodstock. Since 
there has been baywide consensus that the restoration of 3-D reef 
structures, and the establishment of oyster sanctuaries, throughout the 
bay is the best way to achieve the Chesapeake Bay 2000 goal of a ten-
fold increase in native oyster population by 2010, there has been an 
influx of more than $40,000,000 in state, federal, and private monies 
to rebuild these reefs in Virginia. Since 1993, more than 100 of these 
reefs have been constructed throughout Virginia's portion of the 
Chesapeake and coastal bays.

[GRAPHIC] [TIFF OMITTED] T2446.013


    The significant infusion of money and effort to rebuild oyster 
reefs in the short term has not resulted in an immediate increase in 
oyster populations in the Bay. Since the reef restoration effort began 
in 1993, the standing stock of native oysters has fluctuated more 
closely with rainfall than with the magnitude of the restoration 
efforts.

[GRAPHIC] [TIFF OMITTED] T2446.014


    Oyster diseases still dominate the survival of large oysters as can 
be seen from the monitoring results from the restored 3-D, sanctuary 
reefs.

[GRAPHIC] [TIFF OMITTED] T2446.015


    Newly constructed reefs are rapidly colonized by oysters in all 
areas, the oyster grow very fast for the first one to 2 years, but most 
oysters, even on the ideally constructed, sanctuary reefs, succumb to 
disease within 2 to 4 years.
    Virginia remains committed to restoration of the native oyster 
populations and to the restoration of the historic commercial fishery. 
Restoration efforts continue to adapt based on the results from 
monitoring, and research continues to find solutions to counteract 
oyster disease. Oyster populations, though at historically low levels, 
remain stable and are distributed throughout the historic range. There 
is no evidence that the eastern oyster in the Commonwealth is either 
endangered or threatened in its existence.
                                 ______
                                 
    The Chairman. Mr. Perret?

  STATEMENT OF WILLIAM S. PERRET, MARINE FISHERIES DIRECTOR, 
           MISSISSIPPI DEPARTMENT OF MARINE RESOURCES

    Mr. Perret. Thank you very much, Mr. Chairman, members.
    I certainly appreciate the opportunity to be here, and I 
want to start out, first, by thanking you and the other members 
of the Congress for your past assistance to this industry. Some 
of the Gulf States were severely impacted by Hurricane Ivan 
last year, and the Congress was most generous in providing some 
disaster assistance to us.
    I never follow my notes, and I am going to just talk. And 
when the lights start changing, then I am going to speed up my 
conversation.
    You have had terms thrown at you, real technical terms. 
Seed, spat, cultch, so on and so forth. And those of us that 
deal with those terms every day kind of take for granted that 
others understand.
    One management tool that we use in the Gulf States very 
effectively is cultch planning. Cultch is any hard substrate. 
We prefer oyster shells. We can't always get oyster shells. 
This is crushed limestone. This was a plant made in Mississippi 
on May 26th and June 7th. We checked this plant after the last 
two hurricanes to see if we had some damage. And there is a lot 
of spat, spat being the small oyster.
    When the larvae settles out, when the shell begins to form, 
if it sits on a hard, clean substrate, generally you get a set, 
which we have here, and there are 8 or 10 spat on this one. Not 
as many on the crushed limestone.
    Dr. Wesson mentioned the problem of enough cultch material, 
oyster shells. We have the same problems in the Gulf. We can't 
always get the shells we need. We have severance on them, but 
still oysters move in trucks. They go to different parts of the 
country. They do have a value as in roadbed, and so on.
    If that could be passed up, please? That is my show and 
tell. Congressman Gilchrest questioned the percent of oysters 
that come from, I think, aquaculture versus public or wild. And 
just let me summarize for the Gulf, 90 plus percent, 90 percent 
of Florida's production comes from the public reefs in 
Apalachicola Bay.
    In Alabama, practically all production comes from the 
public reefs, which only make up about 2,000 acres. There is 
some other acreage that with cultch plants and so on, those 
reefs would be more productive.
    In Mississippi, the State I am in, we have about 10 or so 
productive acres in the western part of Mississippi Sound. It 
is all public reef. We have very, very few private leases in 
the State of Mississippi.
    In Louisiana, due to the vast estuarine area--and I spent 
30 years of my professional career in Louisiana, so I do know a 
little bit about Louisiana. Louisiana has oyster reefs from 
basically the Mississippi-Louisiana line to the Louisiana-Texas 
line. And some of my friends in the oyster industry keep 
pushing that Mississippi-Louisiana line more eastward. They 
keep wanting to get more of our Mississippi oysters.
    But Louisiana has approximately just under 400,000 acres of 
private leased water bottoms for oyster culture and some 2 
million or so acres of public water bottoms. Now in that 2 
million acres, that is not all reefs, but there are reefs 
scattered throughout those 2 million acres of public water 
bottoms.
    In Texas, production, for the most part, comes from 
Galveston Bay and from the public reefs of Galveston Bay. Texas 
does have a leasing program. They have a small amount of 
acreage, just a few thousand. But primary production comes from 
the public grounds in Galveston Bay.
    Because of the primary location of the reefs--in Florida, 
Apalachicola Bay; in Alabama, Lower Mobile Bay; in Mississippi, 
West Mississippi Sound; and in Texas, Galveston Bay--they are 
extremely susceptible to extreme damage if a hurricane hits in 
those areas. Louisiana is susceptible to the same amount of 
damage, but because they have resources so widely spread out 
that they generally are able to have successful production from 
some of those areas that are not necessarily impacted by a 
storm.
    We have all heard that the oyster is an invertebrate, and 
as such, the complete range of the species must be considered. 
While I am sympathetic to the plight of the eastern oysters in 
the Chesapeake Bay area, I assure you the eastern oyster, 
Crassostrea virginica, is neither endangered nor threatened, 
especially in the Gulf of Mexico.
    If you use the same period of time that the petitioner went 
back and used, from 1880 through 2003, we have seen Gulf 
landings fluctuate tremendously. But all resource surveys and 
current production for the past few years are well, well within 
historical levels. In fact, for the average for 2000 through 
2003, the pounds of oyster meat was in excess of 25 million 
pounds of oyster meat. Only about 43,000 pounds shy of the all-
time high average, which occurred in the 1980s.
    The eastern oyster is the most important mollusk by far the 
Gulf of Mexico States. In 2003, when nearly 14 million pounds 
of meat were harvested in Louisiana, this produced over $286 
million to the economy and 3,000 full-time jobs. In the year 
2000, in Mississippi, the oyster industry created 1,594 jobs 
with a value to the economy of over $70 million, when 3.5 
million pounds of meat were harvested.
    Oyster populations, let us skip that. Since oysters are 
located primarily in the estuaries, they come under the State 
aid natural resource agency jurisdiction. Various management 
measures are in place, which include seasons, bag limits, 
quotas, size limits, gear restrictions, oyster relaying, cultch 
planting, which is extremely, extremely important. And the 
public agencies, like myself, learn cultch planning and oyster 
relaying from the oyster fishermen themselves. They were doing 
it on their private leases. The State regulators paid 
attention, learned from them.
    Oysters in the Gulf States are an excellent example of the 
renewability of a fishery resource. After approximately 125 
years of commercial exploitation and habitat modifications, the 
oyster resources in the Gulf States flourish. We do have some 
localized problems.
    While these past successes may be at least partially 
attributable to the vastness of the Gulf's estuarine systems, 
the oyster industry's fate 125 years in the future will 
certainly be determined by the resolve of management and 
industry and certainly not by placing this species on the 
endangered species list.
    And my agency, my commission has gone on record and 
unanimously voted against placing the eastern oyster on the 
endangered list. And that was submitted for the public record.
    So, thank you, Mr. Chairman.
    [The prepared statement of Mr. Perret follows:]

      Statement of William S. Perret, Marine Fisheries Director, 
               Mississippi Department of Marine Resources

    According to the Federal Register, Vol. 80, No. 95 (May 18, 2005), 
``Under the Endangered Species Act (ESA), a listing determination can 
address a species, subspecies, or a distinct population segment (DPS) 
of a vertebrate species (16 U.S.C. 1532 (16)). Since the eastern oyster 
is an invertebrate species, the entire species would have to be listed 
under the ESA (or a subspecies, if information indicates that there are 
subspecies of the eastern oyster) if it is endangered or threatened. A 
species is endangered if it is in danger of extinction throughout all 
or a significant portion of its range (ESA section 3 (6)). It is 
threatened if it is likely to become endangered within the foreseeable 
future throughout all or a significant portion of its range (ESA 
section 3 (19)).''
    The Federal Register goes on to identify the range of the eastern 
oyster: ``The eastern oyster is distributed from the Gulf of St. 
Lawrence to the Gulf of Mexico and south through the Caribbean to the 
Yucatan Peninsula.''
    While I am sympathetic to the plight of eastern oysters in the 
Chesapeake Bay area, I assure you that the eastern oyster Crassostrea 
virginica is neither endangered nor threatened, especially in the Gulf 
of Mexico. In the same period cited by Mr. Busch (petitioner) (1880 
through 2003), the Gulf of Mexico has seen landings fluctuate 
dramatically, primarily due to changing environmental conditions, from 
state to state and within a state. When viewed over these 120+ years, 
however, or in the shorter period of 1961 to 2004, (Table 1) there is 
no clear evidence of any continuing pattern of decline. In fact, 
current levels of harvest throughout the Gulf of Mexico suggest a 
thriving species. The Gulf has clearly dominated U.S. oyster production 
since the early 1980's and continues to do so. For the period 1997-
2001, the Gulf states contributed 59% of the total United States 
production (Figure 1). Of this total, Louisiana produced 32%, Texas 
13%, Mississippi 8%, Florida 5% and Alabama 1%. In 2003, the Gulf 
states produced 91% of the eastern oysters in the United States (Maine 
through Texas).
    The eastern oyster is the most important commercial molluscan 
species in the five states of the Gulf of Mexico. In 2003, 3318 
licensed commercial harvesters in these five states were dependent upon 
this resource. Louisiana had the highest number (1046), followed by 
Florida (753), Alabama (672), Texas (462) and Mississippi (385). In 
Louisiana alone, the economic impact of this industry was estimated to 
exceed 286 million dollars. The industry supported over 3,000 full-time 
jobs in 2003 when nearly 14 million pounds of oyster meat were 
produced. Posadas reported that in 2000 the Mississippi oyster industry 
created 1,594 jobs with a total industry contribution of over 70 
million dollars when over 3.5 million pounds of oysters were harvested.
    The oyster fishery in the Gulf has a long, varied and diverse 
history. Just when commercial oyster fishing first began is not known, 
but subsistence catches date to the earliest inhabitants of our coastal 
areas. Early colonists developed the industry during the 1800's and its 
growth has continued to its present day form.
    Earliest records of landings for the eastern oyster in the Gulf of 
Mexico go back to 1880 when harvests of 2.1 million pounds of meat were 
reported (Table 2). Since the 1960's, oyster production in Florida has 
ranged from a low of 1.3 million pounds in 1988 to a high of 7.2 
million pounds in 1981 with 90% of the production coming from the 
Apalachicola Bay public reef area. Alabama's production has fluctuated 
from a low of 5,000 pounds in 1989 to a high of 2.1 million pounds in 
1967 with nearly all production coming from the Mobile Bay public 
reefs. Mississippi's oyster production is almost entirely dependent 
upon the public reefs in the western part of Mississippi Sound, and has 
ranged from a low of 21,000 pounds in 1980 to a high of 4.8 million 
pounds in 1964. Louisiana, due to its vast estuarine acreage with 
oyster reefs located throughout the coastal area from the Mississippi 
state line to the Texas line, produces by far, the greatest volume of 
oysters. Production has ranged from a low of 4.7 million pounds in 1966 
to a high of over 15 million pounds in 2001 (Table 1). Historically, 
private leases produced as much as 90% of production, in recent years 
however, about 50% comes from private leases and 50% comes from public 
reefs. Texas production has ranged from 889,000 pounds in 1979 to a 
high of nearly 8 million pounds in 1983. The vast majority of this 
production comes from the public reefs in Galveston Bay. These 
fluctuations are examples of the wide variances in annual production 
among and between the Gulf states.
    Oyster production Gulfwide and statewide has fluctuated widely over 
time due primarily to environmental (including water quality) changes 
annually, seasonally and historically. These wide harvest fluctuations 
indicate the degree of dependence oysters have upon their environment. 
In spite of this, Gulfwide oyster production has remained fairly stable 
and even increased in some geographic areas, unlike declining 
production in other areas of the country (Table 1). A closer review of 
Table 1 indicates that Gulf production from the 1961-1965 average 
through the 2001-2004 average shows that for the 2001-2004 period, 
production of 25,514 million pounds of oyster meat was higher than for 
any other 5-year period except the 1981-1985 period when 25,557 million 
pounds were harvested, a difference of only 43 thousand pounds.
    It should be understood, however, that natural and manmade 
environmental fluctuations can and do cause extreme oyster population 
variations within a state and even within a certain water body. These 
environmental fluctuations may benefit oyster populations on one reef 
and be detrimental on another reef. For example, flooding will benefit 
oyster reefs located away from the fresh water source by lowering 
higher salinities, but will have negative effects on those reefs in the 
close proximity of the fresh water discharge, by lowering salinities 
below acceptable levels.
    In contrast to the other oyster producing regions of the United 
States, the Gulf states have basically maintained and even increased 
its harvest throughout this century (Table 1 and 2). Environmental 
degradation is most often blamed in areas where oyster production has 
decreased. The Gulf states, however, have not been immune to changes 
within its coastal oyster producing environment. Louisiana, for 
example, has been losing its coastal vegetated wetlands at a rate of 50 
square miles per year. This land loss has had a dramatic effect on the 
distribution and quality of aquatic habitat that is suitable for oyster 
production.
    The Gulf's eastern oyster population thrives best at mid-level 
salinities ranging from 10 to 30 ppt. and near freshwater discharges. 
These discharges dilute the Gulf's higher saline waters and provide 
nourishment. Oyster reefs are most productive when they are shielded 
from high saline waters and their predators and disease. Additionally, 
bottom type is important for suitable oyster production. Gulf coast 
estuaries generally contain silt or mud deposited from freshwater 
sources. Since this material is soft, oysters can sink and become 
covered with silt. Thus, a firm clay and sandy substrate is necessary 
to prevent this from occurring.
    Since oysters are sessile they are subject to many environmental 
changes, and as such their populations are subject to wide fluctuations 
due to these changing conditions. These include floods, droughts, 
predators (black drum, stone crabs, oyster drills), disease (Dermo and 
Hazardous Algal Blooms), parasites, deterioration and loss of habitat, 
estuarine development, and modifications of freshwater inflow. 
Additionally, man's encroachment into the coastal area has had other 
negative impacts on their populations. These impacts include domestic 
and industrial pollution, agricultural runoff, and chemical spills. 
Unfortunately, due to poor water quality not suitable for direct 
shellfish harvest, many oyster reefs are either seasonally or 
permanently closed to shellfish harvest to protect the health of 
consumers. Though these issues have detrimental impacts on the oyster 
resources, they are being addressed by state health and resource 
agencies as well as industry representatives.
    The eastern oyster is distributed throughout the estuarine areas of 
the U.S. Gulf of Mexico. In some areas of the Gulf, oyster reefs are 
located in the states' territorial sea and even in the Gulf Exclusive 
Economic Zone (EEZ). Reefs are most abundant in shallow (less than 40 
feet) estuaries with salinities ranging from 5 to 20 ppt. Oysters are 
present in practically every major estuarine system of the Gulf; 
however, their distribution varies greatly within and among estuaries.
    Since oysters are primarily located in the estuarine areas of the 
states, they almost exclusively fall within the management jurisdiction 
of the individual states' natural resource agencies. For the Gulf these 
agencies are:
      Alabama Department of Conservation and Natural Resources
      Florida Fish and Wildlife Conservation Commission
      Louisiana Department of Wildlife and Fisheries
      Mississippi Department of Marine Resources
      Texas Parks and Wildlife Department
    Since these natural resource agencies are responsible for 
implementing rules, regulations, ordinances and/or statutes, they can 
and do have a dramatic effect on fishery management. All five Gulf 
states have and will continue to utilize management practices that 
ensure the viability of the resource and strive to maximize production 
from existing reefs. This is done by implementing regulations that 
include, but are not limited to, quotas, seasons, daily bag limits, 
size limits, gear restrictions, harvest time restrictions, private 
leasing of water bottoms, limited entry, relaying, cultch planting, 
water quality monitoring, data collection, licensing and enforcement.
    The oyster fishery in Florida and Alabama is primarily comprised of 
small shallow draft fishing vessels (18-25 feet) from which oysters are 
harvested with hand tongs (sometimes called rakes). Tongs are attached 
at the ends of long handles some 12 to 16 feet in length, thus 
restricting harvest to shallow waters. In Mississippi, tongs and 
dredges are used to harvest oysters. Dredges vary in size from state to 
state but are approximately 3 feet wide and weigh about 120 pounds. 
Dredges are attached to a chain and pulled from a winch. They are 
usually raised and lowered from the side of the vessel. Dredge boats 
generally range from 25 to 60 feet in length. Virtually all oyster 
production in Louisiana and Texas is done with dredges. In Mississippi, 
90% of the harvest is with dredges.
    A major management practice utilized by all of the Gulf states is 
to enhance production of oyster reefs through cultch plantings. Cultch 
material consists of oyster shells, clam shells, limestone, or other 
suitable materials for deposition. Deposit of these cultch maintains 
and increases or enhances oyster reef acreage and provides a hard 
substrate for the oyster larvae to set. The planting of oyster shells 
or other suitable materials has long been accepted as a management tool 
that provides tremendous benefits to oyster resource management. Cultch 
plant sites are selected by surveying bottom conditions and sediment 
types, turbidity, current patterns, salinity, water temperature and 
historical catch from the area. Additionally, oyster fishermen are 
consulted to obtain information on the areas to be selected for 
plantings. It has been estimated that for each dollar spent in cultch 
plants that as much as $20 is returned to the industry in oyster 
harvest over the years
    Florida, for example, since 2000, has planted nearly one million 
bushels of oyster shells to develop habitat on its public reefs. 
Additionally, they have contracted with local oyster associations to 
relay and transplant over one million bushels of live oysters from 
conditionally approved and restricted harvesting areas to public reefs 
where water quality and environmental conditions are more favorable.
    The major goal of managing a renewable natural resource like 
oysters is to ensure the viability of that resource and to optimize 
production for the benefit of the harvester, packer, shucker, 
processor, distributor, the fishing community and ultimately consumers. 
Proper oyster reef management also benefits the environment by 
increasing habitat and diversity of fauna. Since oysters are filter 
feeders they are also helpful in reducing suspended silt and 
phytoplankton.
    Intensive management and ambitions oyster relaying and cultch 
planting programs, however, have not solved all of the oyster 
industry's problems. Hurricanes, droughts, periodic floodwaters and 
inferior sanitary water quality in oyster growing areas continue to 
plague the industry. Even more disturbing is that these problems will 
become more severe as the Gulf's coastal habitat deteriorates (by 
natural and man made factors), unless we have the will to prevent 
further deterioration.
    Oysters in the Gulf states are an excellent example of the 
renewability of a fishery resource. After approximately 125 years of 
exploitation and habitat modifications, the industry flourishes. While 
these past successes may be at least partially attributable to the 
vastness of the Gulf's estuarine systems, the oyster industry's fate 
125 years in the future will certainly be determined by the resolve of 
management and industry.
    In the Petition submitted by Ecosystem Initiatives Advisory Service 
to List the Eastern Oyster as a Threatened or Endangered Species Under 
the Endangered Species Act of 1973 not a single reference was found 
identifying a problem or potential problem with eastern oysters in the 
Gulf of Mexico.
    Therefore, even though the eastern oyster has had wide fluctuations 
in abundance, since the 1880's these variations are largely a result of 
changing environmental conditions. Oyster populations are well within 
historical levels and issues with oysters in the Gulf are being 
addressed by each state's natural resource agency. Additionally, oyster 
resource assessments conducted by each Gulf state's natural resource 
agency show that oyster resources are well within historical limits. 
All oyster survey data as well as oyster landing statistics (Tables 1 
and 2) dramatically indicate that the eastern oyster in the Gulf of 
Mexico is IN NO WAY THREATENED OR ENDANGERED, and should NOT be 
considered in this petition for listing as such.
    Under the ESA Statutory Provisions and Policy Consideration, 
National Marine Fisheries Service (NMFS) is required to make a finding 
as to whether a petition to list a species presents substantial 
scientific or commercial information indicating the petitioned action 
may be warranted. ESA regulations define ``substantial information'' as 
the amount of information that would lead a reasonable person to 
believe the measure proposed in the petition may be warranted (50CFR 
424.14(b)(i). Once NMFS considers all pertinent information, I am 
confident that they will agree that NO REASONABLE PERSON would find the 
eastern oyster to be threatened or endangered, especially in the Gulf 
of Mexico.
    NOTE: Input from Florida provided by Mark Berrigan; Alabama, Mark 
Van Hoose; Mississippi, Scott Gordon; Louisiana, Patrick Banks; and 
Texas, Lance Robinson.

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    The Chairman. Thank you.
    Mr. Judy?

  STATEMENT OF CHRISTOPHER JUDY, SHELLFISH PROGRAM DIRECTOR, 
            MARYLAND DEPARTMENT OF NATURAL RESOURCES

    Mr. Judy. Mr. Chairman and Committee, thank you very much 
for inviting me today. I will focus most of my comments on the 
Chesapeake Bay in Maryland. But as you have heard today, there 
is a wealth of evidence from around the Gulf and Atlantic 
coasts that the eastern oyster is not endangered or threatened.
    The Department of Natural Resources does not support the 
petition to list the eastern oyster as threatened or 
endangered. This oyster is neither at risk of extinction, which 
is the key mark of endangered. It is not at risk of extinction. 
Nor is it threatened that it may become at risk of extinction, 
which is basically the definition of threatened. It does not 
qualify for ESA listing.
    There are two components central to the department's 
position. One is the status of the oyster. You have heard a lot 
of information today about the status of the oyster. If the 
status review team looks at the oyster status along the coasts, 
it will be clear that it is not at risk as a species. The 
oyster reproduces. There is broodstock intact throughout its 
range. The oyster is viably distributed throughout its historic 
range, and habitat exists throughout its historic range.
    We also need to look at the status of the petition. We hope 
that the status review team will closely look at the petition. 
We note that there are numerous factual errors in the case for 
listing the eastern oyster. And Mr. Chairman, I congratulate 
you on your insightful analysis when the meeting started.
    I will now expand on the status of the eastern oyster in 
Maryland. There definitely is a low population. That is a fact. 
Everyone knows it well. The department testified in October 
2003 before the Subcommittee on Fisheries Conservation, 
Wildlife, and Oceans to that fact. The population is clearly in 
need of recovery. It is in trouble, and it needs help.
    Please note in the Chesapeake Bay area, in Maryland and 
Virginia, by age 4, up to 90 percent of the oyster population 
has died from disease. We are losing many, many oysters from 
the Chesapeake. Many historically productive bars are no longer 
productive commercially. But there is an important distinction 
to be made. And I think again, Chairman Pombo, you made this 
distinction early on.
    Harvest data has a serious limitation when analyzing the 
situation. Harvest data refer to trend for market oyster 
populations because that is what watermen catch. Those are 
oysters in Maryland 3 inches and greater. But harvest data do 
not accurately reflect the status of the younger oysters in the 
overall population, nor of the broodstock, which are the 
reproducing oysters, nor of the potential of the species to 
repopulate itself. Market data are about market oysters.
    The collapse of the fishery, which was clearly obviously 
before all of us, the collapse of the fishery and the collapse 
of the market population does not signal a collapse in the 
oyster broodstock or the ability of the population to produce 
progeny. The diseases MSX and Dermo kill larger, older oysters 
primarily, but many of the younger, smaller oysters survive. 
Because oysters reproduce before they reach market size, the 
majority of the oysters in the bay are small, submarket, but 
they are reproductive.
    Therefore, concluding that an organism is unable to sustain 
itself as a species based upon harvest data and market collapse 
is an inaccurate analysis. What is more accurate to look at on 
the issue of extinction is reproduction. How is the species 
continuing itself into future generations?
    Oysters become sexually mature adults and begin spawning at 
about 1 year old. And again, market oysters are around 3 years 
old, if I left that out earlier. So around 1 year old, the 
small oysters are becoming reproductive. Since the market size 
category, oysters 3 years old and older, have mostly been lost 
due to disease and the small oysters are not harvested because 
they are sublegal and illegal, the majority of the broodstock 
in the bay are small oysters, and they are there.
    As they grow, they typically spawn at least twice before 
being harvested or lost to disease. Therefore, the oyster 
population contains broodstock, and these oysters do reproduce 
and yield spat. Significant spat sets have been observed since 
the 1980s. And I use that time period, if you look at your 
graphs at your convenience, you will see from the mid-1980s in 
Maryland, we have had a dramatic decline in harvest. That is 
when the diseases were killing off so many of our market size 
oysters.
    So in this period from the mid-1980s forward, when we have 
had really low populations, we have seen significant spat sets, 
sometimes dominant year classes. Now conversely, during the 
1970s, when oysters were much less abundant, we saw low spat 
sets. So we have a situation in Maryland and in other areas it 
is true, oyster reproduction is not closely linked to the 
abundance of oysters. So, therefore, while the oyster's ability 
to rebuild its once abundant, older age classes has been 
negatively affected by disease mortality, the survival of the 
species is not impaired.
    I will close here in a few seconds, actually. There are 
hundreds of millions of oysters in the bay, based on stock 
assessment. You have heard Dr. Wesson testify about billions of 
oysters in the total bay system. In Maryland, we see hundreds 
of millions. And that number does not include spat. It does not 
include tens of millions of oysters planted in restoration 
projects.
    We see in 2003 and 2004, with the heavy rains we have had, 
oysters are surviving better. The biomass or the weight of the 
oysters, if you were to shuck an oyster, its body weight would 
be the biomass. The biomass index, which tracks oysters, is 
increasing. So we have a situation under favorable salinity, 
conditions of good survival, the oyster population is slightly 
increasing, and the biomass is slightly increasing.
    So I would like to echo Dr. Sammy Ray's comment, salinity, 
salinity, salinity is as true in Maryland as it is in his area. 
It determines survival. It determines growth. It determines 
longevity of the population and disease. Unfortunately, in the 
bay system, the salinity often is not favorable for survival.
    So, in closing, it is important to note on the issues of 
extinction or near extinction that the biomass index has 
recently increased slightly, indicating the population is 
responding to a previous spat set that occurred. And those spat 
survived, and now they are growing because of the rainfall. And 
let me observe a threatened or an endangered population would 
not likely experience spat set survival and enhanced biomass 
growth. That is an upward trend, not a downward trend.
    Oyster stock abundance is low. The low abundance is due 
primarily to disease mortality. This low abundance is not 
impacting reproductive success, but it is negatively affecting 
the number of larger, older adult oysters in the population.
    The department does not support the petition to list the 
eastern oyster as threatened or endangered because it simply 
isn't the case, and we will be glad to provide a wealth of 
information to the status review team as they discuss the issue 
further.
    Thank you very much.
    [The prepared statement of Mr. Judy follows:]

      Statement of Christopher Judy, Shellfish Program Director, 
                Maryland Department of Natural Resources

    Mr. Chairman and Members of the Committee, thank you for inviting 
me to testify on this issue of importance to the Eastern oyster and 
implementation of the Endangered Species Act (ESA). Clarity about the 
oyster's status and risk of extinction are critical. The public and key 
decision makers need to be well informed to appropriately declare a 
species threatened or endangered. The establishment of the Status 
Review Team by the National Marine Fisheries Service (NMFS) is a needed 
step in bringing clarity and accuracy to this issue.
    Oysters are a critical component of a healthy Chesapeake Bay 
ecosystem, with an unparalleled ability to filter water and remove 
nutrient pollution. The State of Maryland and the Department of Natural 
Resources (DNR) are committed to restoring a viable oyster population 
in the Chesapeake Bay.
    DNR does NOT support the petition to list the Eastern oyster as 
threatened or endangered under the ESA. This oyster is neither at risk 
of extinction nor threatened such that it may become at risk of 
extinction, and thus does not qualify for ESA listing. Data clearly 
demonstrates this. My testimony is limited to Maryland's situation, 
however an abundance of supporting data from other Eastern and Gulf 
Coast areas exists.
    There are two components central to our position:
    1.  The status of the oyster: A review of the oyster's status will 
demonstrate that it is not at risk as a species. The oyster reproduces, 
broodstock are intact, the oyster is widely distributed throughout its 
historic range, and habitat exists throughout its historic range.
    2.  The status of the petition: It is anticipated that a review of 
the petition will reveal possible factual errors in the case for 
listing the Eastern oyster. We urge the Status Review Team to closely 
examine the petition.
    I will now expand upon the status of the Eastern oyster in 
Maryland.
Low Population Abundance
    Oysters are essential to the Bay's ecology and an abundant 
population is needed to improve water quality.
    The oyster population is at very low abundance. (DNR testified as 
such in October 2003 before the Subcommittee on Fisheries Conservation, 
Wildlife and Oceans.)
    The population is clearly in need of recovery. By age four, up to 
90 percent of the oyster population die from disease. Many historically 
productive oyster bars are no longer commercially productive. 
Attachment 1 documents oyster harvests since the 1870s; Attachment 2 
indicates more recent harvest trends.
    Harvest data have a serious limitation. They reveal the trend for 
market oyster populations (oysters equal to or greater than 3 inches) 
but do not accurately reflect the status of younger and smaller 
oysters, or of broodstock (reproducing oysters) and the potential of a 
species to repopulate itself.
    The collapse of the fishery and the market population does not 
signal a collapse in oyster broodstock or the ability to produce 
progeny. Diseases kill larger, older oysters but many younger, smaller 
oysters survive. Because oysters reproduce before they reach market 
size, the majority of brood oysters are small (submarket) and still in 
the Bay.
    Areas with low to no harvest are not devoid of oysters. Since all 
oysters are not harvested, both market oysters and small oysters remain 
present on oyster bars. If conditions support spat sets (young oysters 
that have attached to oyster shells), then spat are present as well. 
DNR surveys hundreds of oyster bars each year. The results confirm that 
broodstock populations remain intact and reproducing. Survey results 
can be made available for study by the Status Review Team.
    Therefore, concluding that an organism is unable to sustain itself 
as a species based upon harvest data and market collapse is an 
inaccurate analysis.
    While neither an abundant population nor widespread recovery is at 
hand, neither is extinction or near-extinction. The definition of 
endangered under ESA is that a species is in danger of extinction. 
Threatened means a species is likely to become endangered in the 
foreseeable future. As stated earlier, the Eastern oyster does not fit 
the criteria for either category because of successful reproduction, 
intact broodstock and wide distribution of habitat and population 
throughout its historic range.
Reproduction
    The oyster population can be divided into three broad size 
categories: spat, smalls and market oysters.
      Spat are new oysters less than 1 year old. They typically 
do not spawn.
      Smalls are oysters about 1 to 3 inches in size, which 
tend to be about 1 to 3 years old.
      Market oysters are oysters 3 inches or greater, and tend 
to be about 3 to 4 years old in Maryland.
    Oysters become sexually mature adults and begin spawning at about 1 
year old, when they are young smalls. Since it is the market size 
category that has mostly been lost due to disease and smalls are not 
harvested, the majority of broodstock in the Bay are small oysters. As 
they grow, they typically spawn at least twice before being harvested 
or lost to disease. The oyster population contains broodstock and these 
oysters reproduce and yield spat. The species is functional and 
replenishes itself. The population is at low abundance due to disease 
mortality of older, larger oysters.
    Attachment 3 shows the historical record of spat set, measuring 
reproductive success. Survey results indicate stocks exist in 
sufficient numbers and are reproducing dominant year classes under 
suitable environmental conditions. Significant spat sets are observed 
since the mid-1980s, even though diseases were killing many oysters and 
populations fell to record low levels. During the 1970s oysters were 
much more abundant than today and market oysters were also abundant. In 
spite of this, spat sets were low.
    The conclusion is that reproduction in Maryland is highly variable 
and not closely linked to the abundance of oysters. Attachments 3 and 4 
illustrate spat setting patterns, which indicate reproduction is driven 
more by salinity patterns due to rainfall than by population abundance.
    The 1970s were wet as were other times of low sets such as 1984, 
``88, ``89, 1993, ``94, ``96, ``98, and 2003 and 2004. Periods of 
drought and higher salinity typically, though not always, yield higher 
sets, as in 1980, ``81 and ``85, 1991 and ``97, and 1999 to 2002. Low 
salinity is more of an impediment to reproductive success than the low 
oyster population.
    Low sets in any given year or geographic region (Attachments 3 and 
4) do not mean the oyster is at risk of being lost. Sets were low in 
the 1970s, but rebounded during the ``80s and ``90s. Set was poor in 
1988 (a wet year) but a record in 1991. After the low set of 1996, 
there was a record high set in 1997. The low sets of 2003 and 2004 are 
not a sign of crisis. Both years were very wet and reproduction can be 
expected to improve.
    Therefore, while the oyster's ability to rebuild its once abundant, 
older age classes has been negatively affected by high mortality due to 
disease, the survival of the species is not impaired.
Current Population Levels and Biomass
    Based on calculations from a recent Chesapeake Bay Program project, 
the most recent population estimate for Maryland is in the hundreds of 
millions of oysters. This includes markets and smalls. This number does 
not include spat, or the tens of millions of seed oysters resulting 
from various restoration efforts.
    Maryland's oyster population is now surviving better than during 
the drought of 1999-2002 due to the rains of 2003 and 2004 that lowered 
salinity and decreased disease mortality. The result is that these 
oysters are growing and increasing their biomass (weight). Biomass is 
another measure of the oyster population that is not linked to skewed 
harvest records.
    The population levels and biomass are doing best in areas that have 
experienced both a spat set and a reduction in disease mortality. This 
combination of factors provides new oyster stocks as well as encourages 
their survival and growth. Examples of such areas are Tangier Sound and 
St. Mary's county.
    Maryland oyster biomass began declining in 2001, due to the drought 
that started in 1999 and increased disease and mortality levels 
(Attachment 6). Harvest declined as well. Biomass reached a low point 
in 2003, but has increased slightly due to better survival during the 
rains of 2003-04. The biomass index measured by DNR is now .88 compared 
to the low point of .5 in 2003 (Attachment 5). The baseline standard is 
1994, which had an index value of 1.
    It is important to note, on the issue of ``extinction'' or ``near 
extension'' that the biomass index has recently increased, indicating 
the populations' response to spat sets that survived and grew. A 
threatened or endangered population would not likely experience spat 
set followed by enhanced survival and biomass growth.
    Are these signs that the oyster is coming back to its historic 
abundance? No. Diseases are entrenched and a chronic problem that 
suppresses broad recovery. But this data shows that as a species the 
oyster is functional and successfully replenishing itself and 
inhabiting oyster bar habitat.
Summary
    Oyster stock abundance is low. This low abundance is due primarily 
to disease mortality. It does not appear that low abundance is 
impacting reproductive success, though it is negatively affecting the 
number of large adults in the population.
    The Department does not support the petition to list the Eastern 
oyster as threatened or endangered.

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                                 ______
                                 
    The Chairman. Thank you.
    Mr. Gilchrest?
    Mr. Gilchrest. Thank you, Mr. Chairman.
    Can either Dr. Wesson or Mr. Judy give me an estimate of 
the biomass of virginica in the Chesapeake Bay in 1890 versus 
2005?
    Dr. Wesson. No. I don't think there is any way that we 
could.
    Mr. Gilchrest. Is there any way to determine what it is 
now?
    Dr. Wesson. We know exactly what it is now.
    Mr. Gilchrest. What is it now?
    Dr. Wesson. In our part of the bay, for last year, it was 
about a billion oysters, small and markets.
    Mr. Gilchrest. What would it likely have been in 1890 if 
the bushels that were taken out of the bay exceeded 10 million? 
Is there any way to calculate that?
    Mr. Judy. That can be provided later. That is possible.
    Mr. Gilchrest. Okay. I am just curious just to see what the 
range is we are working on now. Without that calculated biomass 
comparison between 1890 and 2005, I have heard a figure of 
about 2 percent of what it was in 1890. I am assuming that 2 
percent is the harvested level. But compared to what was likely 
there in 1890, you know, let us say that is 100 percent 
threshold. What is the percentage of oysters in the bay now 
compared to that number?
    Mr. Judy. The commonly accepted number that is often used 
in many oyster meetings is that the oyster population is 1 
percent of its historic level. That is, I think, usually 
referred to as a biomass percentage, 1 percent of the historic 
biomass. So, clearly, whether it is 1 percent or 2 percent, 
another number that is circulated, from the 1880s, it has 
dropped dramatically. That is obviously clear.
    Mr. Gilchrest. In the 1880s, were there still oyster reefs, 
and are oyster reefs the historic habitat for oysters versus 
the oyster bar?
    Mr. Judy. I can speak to Maryland, and Dr. Wesson can refer 
to Virginia. In Maryland, we still see reefs. The major 
difference, again, I think quite obviously is the historic 
reefs were thickly populated with dense populations of oysters.
    Now under that thick population, which you could call 
perhaps a living veneer of oysters clumped together perhaps in 
a lot of different areas or perhaps single oysters in other 
areas, that living veneer was upon a structure often called the 
oyster reef. I tend to view the oyster reef as the living 
community upon the bar or reef, whatever term you prefer to 
use.
    Now in Maryland, we still see many of these three-
dimensional historic reefs in existence, but that living veneer 
has dropped dramatically in population. So perhaps it is a 
different viewpoint, but we do have many three-dimensional 
reefs, three-dimensional bars, large three-dimensional----
    Mr. Gilchrest. Are we working toward what Dr. Wesson said 
are the 3-D restoration effort with I think you said, Dr. 
Wesson, 100 3-D restoration efforts or sanctuaries under way?
    Dr. Wesson. That is correct. We have more than 100, and all 
that Chris said is the same for Virginia. We still have reefs. 
The reefs were definitely probably more dramatic historically, 
more like the three-dimensional reefs that we have been 
creating.
    But what we see in monitoring the reefs that we have 
created is that when we prepare the ideal historic habitat, 
then the theory is that the oyster will be the biogenic builder 
that will then take the veneer and keep the reef alive.
    Mr. Gilchrest. Is that happening? Has that happened?
    Dr. Wesson. That does not happen. Within 5 years, the 
three-dimensional reefs look identical to the neighboring----
    Mr. Gilchrest. Even though the oysters, you have 
reproduction oyster, spat, on the hardshell doesn't develop its 
own hardshell and continue to grow? You are saying the oyster 
reef doesn't grow?
    Dr. Wesson. No. Because of the disconnect between those 
oysters dying at 2 years old versus the shells that we build 
the reefs from are the Gulf of Mexico large, 4-, 5-, 6-inch 
shells. The veneer that gets put on those shells never gets 
more than an inch or two, and then they die. And in that time 
period, the rest of that reef that we created gets colonized by 
other things. And so, it loses all the habitat that used to be 
there.
    Mr. Judy. May I add a distinction?
    Mr. Gilchrest. Yes, sir.
    Mr. Judy. In Maryland, because we have some areas which are 
lower salinity, lower disease areas, and have better survival, 
we do have projects where we take hatchery seed oysters, plant 
them on a constructed reef or perhaps a natural reef, and re-
establish that living veneer. And because disease pressure is 
lower in these lower salinity areas, we do see that population 
living longer, growing larger, and being more like that 
historic cluster population.
    But being lower salinity areas, that reef has not 
repopulated itself with larvae and spat because it is 
compromised by the low salinity.
    Mr. Gilchrest. Thank you. My time is up. Thank you.
    The Chairman. Ms. Drake?
    Ms. Drake. Thank you, Mr. Chairman. And certainly, I 
apologize for not being here for the whole hearing, but I am 
certainly glad to be here for the three of you. And Dr. Wesson, 
it is very nice to see you.
    I have heard very clearly, just to put your words a little 
differently than you said them, that low population does not, 
by any means, mean danger of extinction. You would all agree 
with that?
    The Witnesses. Yes.
    Ms. Drake. And you all agree--I notice from everything that 
I read prior to this meeting that everyone seemed in agreement 
that the oyster should not be on the Endangered Species Act. 
And I have heard that from, I think, all three of you today as 
well.
    Mr. Perret. I agree with that.
    Ms. Drake. Dr. Wesson and Mr. Judy, would you agree with me 
that the tools and the practices that are put in place by both 
Virginia and Maryland and the work that is being done in our 
communities, in the Chesapeake Bay Commission, and our 
different State agencies, do you think those tools are 
appropriate to protect the oyster? Do you think there are 
additional tools, other than this Endangered Species Act 
petition, that you would like to have?
    Or do you think things are moving along like you would like 
to see them? We would all want it to be better, but certainly I 
think there have been significant things that have been done.
    Dr. Wesson. And I agree with that. There has been a lot of 
money that has been given to us, and it has been very helpful 
to moving forward. Every restoration project that we still do 
in Virginia, when we put new shells out, we get rapid 
colonization and have an abundance of small oysters. But we 
still falter when the salinities get high enough, the diseases 
come back.
    So we are constantly depending on research to help solve 
the problem, if it is possible, to get a tolerant oyster either 
for aquaculture or, hopefully down the road, for restoration of 
larger bodies of water naturally. But the Endangered Species 
Act is certainly, if anything, it will hold us back from doing 
further work with the oysters because our private industry is 
our biggest partner in Virginia.
    I mean, they have all the equipment that we use for 
restoration. They are all our contractors. And if there is no 
incentive for them to stay in the business, then we will have 
to gear up entirely different to do restoration.
    Ms. Drake. I wondered that last night, reading it. That if 
it were on the endangered species and they couldn't work 
anymore, if we would see the creativity and the work on the 
part of those watermen and those companies to help us fix the 
problem. So it sounds like, too, that even if we didn't harvest 
another oyster, if that salinity changed and the disease came 
back, they would be gone anyway?
    Dr. Wesson. We have very, very good data that shows that 
these large areas that we have set aside as sanctuaries where 
we do the same restoration that we do in the harvested areas, 
that the populations are identical.
    Ms. Drake. Thank you.
    And Mr. Chairman, I am going to yield back my time. I know 
we have to go vote. And thank you very much for being here.
    The Chairman. We did get called to votes. But I just wanted 
to ask one question before I adjourn the hearing. And it is 
kind of following up on Ms. Drake's question because if the 
species, if the population in the Chesapeake Bay is listed as 
an endangered species, it severely limits what you can and 
can't do with that population.
    And I guess my question is what happens with the seeding 
operations and the operations that both Maryland and Virginia 
are conducting right now to increase the population? Because if 
it is listed as endangered, you now fall under all the 
regulations of the Endangered Species Act, and that severely 
limits your ability to do a lot of the work that you are 
currently doing.
    Mr. Judy. That is an important issue. Of course, I don't 
know the answer. I am not a lawyer. But that would definitely 
be a flag that goes up in Maryland. There are some techniques 
that actually dig into the bottom, some techniques that move 
oysters to clean an area of disease to the extent possible.
    So the question would be, would some of these, let us call 
them, say, invasive techniques that manage the bottom, would 
some of these be at risk if that habitat and that oyster are 
protected?
    The Chairman. That would be a take of an endangered 
species, and under the law, you wouldn't be allowed to do it.
    Mr. Judy. Well, you have answered my question.
    The Chairman. You know, listening to you talk about disease 
being the major problem, and as I was sitting here listening to 
the questions and to your testimony, I thought about the desert 
tortoise, which is listed as an endangered species. And the 
main reason it has become endangered is because of an upper 
respiratory disease which has limited the population in certain 
segments. Not without its entire range, but only in certain 
segments.
    It was listed as an endangered species throughout its 
entire range and is now managed as an endangered species 
throughout the entire area, even though only a limited area had 
a disease problem that was causing numbers to go down. I can 
see this being listed as an endangered species throughout its 
entire range because of a disease problem in the Chesapeake Bay 
and the impact that would have throughout the entire area and 
the impact that would have on the industry.
    I think we have a perfect case right in front of us today 
of an industry working with the natural resource folks in order 
to bring a species back, and I think this is really the way we 
ought to be trying to bring species back instead of a lot of 
the stuff that we are doing in other parts of the country. So 
this has been very informative for me and has been, I think, a 
very good hearing for us.
    So I appreciate your testimony. I will say that I ask 
unanimous consent for Members to submit written materials and 
questions for the record for 10 days, and the hearing record 
will be held open. I know that there were Members who, because 
of other markups and other hearings that were going on, could 
only stay for a short period of time.
    Those questions will be submitted to you in writing. If you 
could answer those in writing for the Committee, it would be 
appreciated. So thank you very much.
    The Chairman. If there is no further business before the 
Committee, the Committee stands adjourned.
    [Whereupon, at 4:55 p.m., the Committee was adjourned.]

                                 
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