Blue crab abundance has decreased from 2017 but remains near its long-term average level, according to results from a closely watched survey released on April 9.

The annual winter dredge survey showed that the total number of crabs and the number of spawning-age females are down from last year, while the number of juveniles has ticked upward.

Results would have been better, scientists said, had it not been for the lethal toll extracted by a cold winter. They estimated that cold conditions killed 16 percent of the adult crabs in Maryland and 8 percent in Virginia — where most of the crustaceans overwinter.

Managers in both states said that continued cool temperatures through the spring would likely result in a slow start to the harvest season, but catches would likely pick up later in the year.
Maryland Natural Resources Secretary Mark Belton said the population “remains healthy, resilient and sustainable.”

Virginia Natural Resources Secretary Matthew Strickler credited management improvements over the last decade with “allowing sustainable harvests even in years with challenging environmental conditions.”

The 2018 dredge survey estimated that the Bay has:

• 371 million crabs of all sizes, down from 455 million last year, but still ranking sixteenth highest in the 29-year history of the survey.

• 254 million juvenile crabs, up from 168 million last year, ranking twentieth in the survey’s history.

• 147 million adult female crabs, a decrease from 254 million last year, but the ninth highest in the survey’s history.

The number of females remained below the 215 million target set by fishery managers, but was still more than double the 70 million minimum deemed necessary by scientists to maintain a healthy stock.

Overall, the survey results were “well within the normal variation” for the stock, according to Robert O’Reilly, chief of fisheries management with the Virginia Marine Resources Commission.

Blue crab populations can vary widely from year to year because the species is heavily influenced by climate conditions — juveniles spend the first several weeks of their lives drifting in the ocean after they are spawned during the summer and fall, and weather conditions at that time of year greatly affect the number that return to the Bay.

To boost the number of crabs after a decade of low survey numbers, management agencies since 2008 have imposed regulations offering greater protection to female crabs, in the hope that more would survive and reproduce. Although numbers have fluctuated, the overall abundance has trended generally upward since then.

Chris Moore, a fisheries scientist with the Chesapeake Bay Foundation, said those fishery management efforts are paying off. “Despite this winter’s cold temperatures, the Bay’s blue crab population remains healthy,” he said.

The winter dredge survey has been conducted annually since 1990 by scientists in Maryland and Virginia, who tally crabs dredged from the bottom at 1,500 sites across the Bay from December through March — when they are buried in mud and stationary.

Historically, the survey has provided an accurate snapshot of crab abundance and is the primary tool for assessing the health of the crab stock.

by Karl Blankenship

Karl Blankenship is editor of the Bay Journal and executive director of Bay Journal Media. He has served as editor of the Bay Journal since its inception in 1991.

It took eight years, but Gail Litz finally got her day in court — three weeks, actually.

Gail Litz

Gail Litz said she’s not sorry for bringing the case. “I think people need to know what went on and how our state handles these things,” she said.

Along the way, she won a potentially important legal ruling for enforcing water quality in Maryland. But she fell short in her quest for damages from the state and an Eastern Shore town for their failure to fix pollution that she contended caused the loss of her family’s campground business and property.

“I got my day in court,” acknowledged Litz , who now lives in Orlando, FL. “But I don’t feel we were allowed to admit a lot of things [into evidence] that I thought explained better the process.”

Litz filed suit in 2010, claiming that Lake Bonnie, the prime attraction of her family’s campground in Caroline County, had been rendered unfit for swimming by sewage seeping into the water from failing septic systems in the nearby town of Goldsboro. She said she’d been forced to close the campground because of declining business and was on the verge of losing the property to foreclosure.

Septic systems in Goldsboro had been leaking for decades when the state Department of the Environment issued a consent order in 1996 requiring the town to fix the problem or face fines. Fourteen years later, when Litz filed suit, there was no remedy in sight, and no fines had been collected. Litz wanted an injunction to force a cleanup, and she wanted damages from Goldsboro and the state for costing her the campground business — and property — through inaction.

Litz’s lawyers went to the Maryland Court of Appeals twice to ask for her case to be heard. In 2016, the state’s highest court paved the way by ruling that a citizen could sue the state for damages when it fails to fulfill its legal duty to act — which her lawyers say should prompt officials to take environmental enforcement more seriously.

Litz then won a pretrial ruling that confirmed the state had a duty to enforce the 1996 consent order. And at the end of the three-week trial in March, a Caroline County Circuit Court jury found the state had breached that duty.

But Litz came away empty-handed; the jury also concluded that she and her lawyers had failed to prove the unaddressed septic pollution caused her to lose the campground.

Philip Hoon, one of Litz’s lawyers, called the outcome “bittersweet.”

“We won on the legal point, a very significant legal point, but it’s pyrrhic in that this lady lost her property,” Hoon said.

Litz’s lawyers argued that she lost the property through an “inverse condemnation” by the state and town for their failure to remedy the pollution.

Government agencies normally take private land for public purposes by filing a lawsuit to condemn it and offering the owners compensation. An inverse condemnation occurs when government takes land without filing a lawsuit for it — say, by adopting legislation or regulations that render the property worthless.

What made Litz’s case unusual, explained G. Macy Nelson, another of her lawyers, is that they argued government inaction, rather than a decision or action, could lead to a taking.

Long after Gail Litz is gone, Nelson said, “people are going to be suing the state of Maryland and using this case as a roadmap.”

At the time Litz filed suit, an MDE spokesperson said the agency had nearly 200 active consent orders, decrees or agreements, 55 of which called for cleaning up water pollution. Another MDE spokesperson had said that, because of limited staff and funding, the department prioritized its efforts to cases threatening public health. MDE spokesman Jay Apperson said there are 83 water-related consent agreements now; he declined to comment on the Lake Bonnie case.

Lawyers for MDE contended that it had no legal duty to act and that state regulators have the discretion to enforce consent orders or not. After courts rebuffed those arguments, the MDE lawyers challenged the evidence that Litz lost her property because of the septic pollution, arguing that the lake might be polluted instead by animal waste from nearby farms.

They and the town’s lawyers succeeded in getting the judge to exclude statements by a county health official and from a health department report stating that the town’s leaking septics were a source of the fecal bacteria in the lake. The defendants also persuaded the judge to prevent a Johns Hopkins University environmental engineering professor from testifying to the linkage.

The state lawyers further suggested Litz lost the property because of poor business decisions. She took out a loan against the campground, for instance, to make improvements to her home, but Litz contends the improvements were made to accommodate health challenges that made it hard for her to climb stairs.

Litz said it irked her that the state’s lawyers questioned why she hadn’t tested the water herself to verify it was polluted by septic waste.

“They tried to throw the blame on me,” she said. “I felt as though it was their responsibility, as the state environmental agency, to figure out what was going on.”

MDE Secretary Ben Grumbles had said last year that he’d like to settle the case, and Nelson said Litz’s lawyers tried in vain to reach an agreement.

Nelson expressed bitterness that the state had then gone to such lengths to oppose her claim for damage after letting the problem fester for so many years.

“You challenge their inaction, and the moment you challenge their inaction, they bring unlimited resources to beat back the challenge,” Nelson said. “[If] they would have spent 1 percent of the defense energy on addressing the environmental problem, there never would have been a problem.”

But Attorney General Brian Frosh said settling Litz’s case would have done nothing more than “put money in Mrs. Litz’s pocket,” something he called “a very ugly principle.”

Frosh disagreed with Nelson that the court ruling would make state regulators more accountable. Instead, he argued that the court’s ruling could actually be a disincentive for the MDE to use consent orders to enforce cleanups.

“If [MDE] is liable for the failure to enforce, maybe a less courageous secretary will be less likely to try to reach a consent order,” he said.

Nichole Nesbitt, one of Goldsboro’s lawyers, issued a statement saying town officials never disputed that residents were having trouble maintaining their septic systems because of poor soil conditions.

But the town’s lawyers argued that residents, not the town, were responsible for solutions. Efforts to fund a new wastewater treatment plant failed — until after the lawsuit was filed.

“The town and the state made extraordinary efforts to secure funding that would bring a public water and sewer system to the town,” Nesbitt said.

Three years ago, construction began on a new wastewater treatment plant in the neighboring town of Greensboro that will also process Goldsboro sewage. Homes began hooking up to the sewer line earlier this year.

Litz said she’s not sorry for bringing the case, and praised her lawyers, who represented her for free.

“I think people need to know what went on and how our state handles these things,” she said. “If a consent order is issued from the state, I think it has to be enforced. It shouldn’t be at MDE’s discretion.”

Despite the verdict, Litz may still get another day in court. On April 19, her lawyers filed a motion for a new trial, contending that Circuit Court Judge Sidney S. Campen, Jr., erred in rulings that limited their ability to gather and present evidence to support her claim. A ruling on that motion is pending.

By Tim Wheeler

Timothy B. Wheeler is associate editor and senior writer for the Bay Journal. He has more than two decades of experience covering the environment for The Baltimore Sun and other media outlets.

The Chesapeake’s underwater grasses — critical havens for everything from blue crabs to waterfowl — surged to a new record high last year, surpassing 100,000 acres for the first time in recent history.

“I never thought we would ever see that,” said Bob Orth, a researcher with the Virginia Institute of Marine Science who has overseen the annual Baywide underwater grass survey since it began in 1984. “But things are changing.”

It was the third straight year that acreage of these underwater meadows has set a new Baywide record. The 2017 survey results, released in late April, came on the heels of a scientific study published in March that credited nutrient reductions in the Bay for a sustained long-term comeback of the grasses over the last three decades — even as those habitats are in decline globally.

“Seeing record growth in underwater grasses for the past three years just reinforces that our efforts to restore the Chesapeake Bay and its local tributaries is working,” said Jim Edward, acting director of the Chesapeake Bay Program, a state-federal partnership.

The need to restore underwater grasses is one reason that the Bay cleanup effort aims to reduce nutrient and sediment pollution; water clouded by sediment or nutrient-fueled algae blooms can be lethal to the nearly two dozen species of underwater grasses found in the Bay. Like all green plants, submerged grasses need sunlight to survive, and they receive more sunlight through clear water. Because of the link to water clarity, the status of submerged aquatic vegetation — or SAV — is considered a key indicator of the Bay’s health.

Grass beds are also a critical component of the Bay ecosystem in their own right. In addition to providing food for waterfowl and shelter for fish and crabs, they also pump oxygen into the water, trap sediment and buffer shorelines from the erosive impact of waves.

Overall, results from the 2017 survey showed that the Bay had 104,843 acres of underwater grasses, a 5 percent increase from the previous year. That exceeds an interim 2017 goal of 90,000 acres, and it was 57 percent of the ultimate 185,000-acre Baywide goal for 2025.

When the survey began in 1984, fewer than 40,000 acres of SAV were observed in the Bay. Since then, the total amount has generally increased, though the amount in a given year may fluctuate widely depending on the weather: Big storms drive huge amounts of nutrients and sediment into the Bay that tend to cause significant losses, while very hot summers cause die-offs of eelgrass, a dominant species in high-salinity areas of the Lower Bay.

Most recently, Hurricane Irene and Tropical Storm Lee in late summer 2011 knocked grasses back to 48,195 acres in the 2012 survey, the lowest in recent years.

But after that, the beds continued their long-term recovery, with Baywide coverage increasing for five consecutive years — the longest period of uninterrupted expansion in the history of the survey — and setting records in the last three. “There have up and downs in places, but the overall picture since 2012 has been up, up, up,” Orth said. “It’s not going down.”

The recent paper published in Proceedings of the National Academy of Sciences, written by a team of 14 scientists, credited the overall recovery to improved water quality, largely brought about by a 23 percent decline in nitrogen concentrations in the Bay and an 8 percent decline in phosphorus since the mid-1980s.

“We don’t need miracles,” said Brooke Landry, a biologist with the Maryland Department of Natural Resources and chair of the Bay Program SAV Workgroup and, along with Orth, one of the co-authors of the paper. “We just need a sustained effort.”

Environmental advocates said the underwater grass record was evidence that cleanup efforts are working — and need to be maintained. “Pollution is going down, the dead zone is getting smaller, and oysters are making a recovery. This progress is extraordinary,” said Beth McGee, a scientist with the Chesapeake Bay Foundation. “But the recovery is fragile and proposed rollbacks to federal environmental protection regulations threaten future progress.”

Good news last year was heralded at the top of the Bay, where underwater grass beds in the Susquehanna Flats, historically a critical waterfowl habitat, continued their comeback after being halved in the wake of Irene and Lee. They reached 9,084 acres last year, about three-quarters of their level before those storms.

It is no longer the area of the Bay with the most grass, though. That honor goes to a huge 21,507 acre expanse of underwater grasses that extend from near Tangier Island to the Honga River, along the Eastern Shore.

Closer to the mouth of the Bay, beds have stabilized after a heat-wave caused a dieback of temperature-sensitive eelgrass beds — important habitats for juvenile blue crabs — in 2012. “It looks like eelgrass is basically stabilizing, with some increases,” Orth said. Eelgrass is of particular concern as it is one of the two primary species found in high-salinity areas; the other is widgeon grass.

Grasses are also turning up in places where they haven’t been seen in decades — if ever. In the York River, Orth said he hasn’t seen underwater grasses above Gloucester Point, near the mouth of the river, since 1972. But last year they found substantial bed of widgeon grass there, he said. “It’s the first time ever in the survey that we saw any grass above Gloucester Point.”

A large widgeon grass bed also popped up in the Patuxent River outside the Chesapeake Biological Lab in Solomons, MD, where it had not been previously mapped.

Although the overall trend is upward, the magnitude of the changes from 2016 to 2017 varied by salinity zone, each of which hosts a slightly different mix of grass species:

• In the tidal fresh zone, at the head of the Bay and in the uppermost tidal reaches of most tributaries, underwater grass beds increased by 2,462 acres to 19,880 acres, a 14.1 percent increase.

• The slightly salty oligohaline zone that occupies a relatively small portion of the Upper Bay and tidal tributaries, lost 190 acres, dropping to 8,398 acres, a 2.2 percent decrease.

• The moderately salty mesohaline zone — the largest area of underwater grass habitat, stretching from near Baltimore south to the Rappahannock River and Tangier Island and including large sections of most tidal rivers — had the greatest increase by acreage, gaining 4,140 acres to 61,331 acres, an increase of 7.2 percent.

• The very salty polyhaline zone — from the mouth of the Rappahannock and Tangier Island south, including the lower York and James rivers — increased 763 acres, to 15,234 acres, an increase of 5.3 percent.

While grass beds are expanding or holding their own in much of the Bay, much of the recovery hinges on the mesohaline zone in the midsection of the Bay. Widgeon grass is by far the dominant species there, and its acreage has nearly tripled in just the last five years, from less than 20,000 acres in 2010 to more than 57,000 acres last year. But widgeon grass is notorious for its boom and bust cycles, as it can disappear quickly if conditions turn bad. In 2003, that area lost half of its underwater grass coverage after severe storms muddied the waters.

But, Orth said, widgeon grass likes warm water and might be benefitting from gradually warming Bay temperatures. In the event of another setback, he said, those beds may be better poised for a comeback than in the past because they have become so large and dense, and are producing prodigious amounts of seeds.

Also, Landry said, inspections of some beds last year showed that, in some places, other species are starting to appear along with widgeon grass, giving beds diversity that could help them better withstand severe events.

“I think these plants can withstand bad weather and storm events and things like that if the system itself is healthy,” she said. “So if we keep up with our nutrient reduction plans and our sediment reduction plans, and we set the stage for a thriving environment, these beds will be more likely to withstand stressful events. They can’t withstand long-term chronic stress.”

Karl Blankenship is editor of the Bay Journal and executive director of Bay Journal Media. He has served as editor of the Bay Journal since its inception in 1991.