Destruction of the oyster industry: though there are an estimated five billion Eastern oysters in U.S. waters, the National Marine Fisheries Service is considering listing them "endangered.".(Endangered Species Act of 1973)

Oyster growers on the East Coast and the Gulf of Mexico must contend annually with high oyster mortality rates from recurring epizootics (animal-related epidemics). To reduce the recurrence and impact of epizootics, oyster growers must remove oysters from infected growing areas and let the areas lie "fallow" for one or two years so that any remaining infected oysters can die; grow the oysters in water with low salinity levels; continually monitor the infections' progression to determine the best time to harvest the oysters; and cultivate oyster strains that are resistant to diseases.

Two oyster diseases are the main challenges for oyster growers: MSX and Dermo. These two diseases are prevalent throughout most waters of the East Coast and beyond. In one region of the Eastern oyster's range, Maryland's Chesapeake Bay, the decline in oysters has been catastrophic, its harvest dropping from between two and four million bushels a year in the 1930s to 33,000 bushels a year in the early 1970s. (This drop is only partly owing to disease.)

Enter the ESA

Into this situation, the Endangered Species Act (ESA) was introduced by a man named Wolf-Dieter Busch, who in January 2005 filed a petition to the National Marine Fisheries Services (NMFS) to place the Eastern oyster on the federally protected threatened and endangered species list. Busch's petition passed an initial NMFS perusal, and a review team was set up to monitor the Eastern oyster. The NMFS was required to tentatively decide by January 2006 whether the oyster would be "listed." Busch's intent was to get the NMFS to study the status of the oysters in Chesapeake Bay, list the Eastern oyster as "threatened," and create a cohesive restoration plan. But his petition held out the possibility of halting all harvesting of Eastern oysters nationwide. According to Oceanus, the magazine of the Woods Hole Oceanographic Institution, it could even "possibly inhibit wild oyster restoration efforts by restricting the search for disease-resistant wild oyster strains."

This dire result could happen because of the design of the Endangered Species Act: if invertebrates--like oysters--are labeled as endangered, they are considered endangered in all portions of their range. Busch wanted a "threatened" designation, which would have allowed flexibility in management on a region-by-region basis. But once a petition is filed, it's up to the NMFS to determine whether a species receives a "threatened" or "endangered" designation. Disparate groups, ranging from environmentalists to oyster farmers, were aghast at the possible listing of the oyster as endangered.

Dave Relyea, a co-owner of Frank H. Flower and Sons, New York's oldest and largest oyster farming company, told the Associated Press that, ironically, any federal "listing" of the Eastern oyster in Oyster Bay, where he leases 1,800 acres for aquaculture, would likely reduce wild oyster populations. Relyea's company cultivates oyster larvae in a hatchery. When the oyster "seedlings" are an inch-and-a-half, they are put in the bay. Many of the seedlings drift outside the harvest area, and they help repopulate the entire bay. If the oyster is listed by NMFS, oyster plantings would likely end--along with an entire industry and the jobs it represents.

The furor over the NMFS's decision to review the oyster for endangered species listing caused Busch to withdraw his petition on October 13, 2005, but the NMFS has decided to continue to review the status of the Eastern oyster anyway. The only real difference is that now the NMFS doesn't have to meet deadlines artificially imposed by ESA regulations and can take as long as is felt needed to study the problem.