Running head: BAY WATCH

Bay Watch: Legal Analysis of the Conservation of the Chesapeake Bay through the Protections

of Elasmobranchs

Kaitlin E. Stevens

Legal Studies Academy at First Colonial High School

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Abstract

This paper uncovers the negligence of protective legislation of elasmobranchs, sharks and

rays in particular, in the Chesapeake Bay. The author begins by introducing the history of the

Chesapeake Bay, as well as environmental and ecological importance. The author also discusses

the importance of elasmobranchs in the Bay, and how their involvement in the ecosystem has

affected conservation. Each individual species that is discussed has a certain importance, and

minimal laws preserving them. Finally, the author compares the insignificant laws of

elasmobranchs to the laws protecting oysters in the Bay and calls to action the awareness of this

negligence.

Keywords: Chesapeake Bay, conservation, protections, elasmobranchs, oysters, Virginia

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Bay Watch: The Conservation of the Chesapeake Bay through the Protections of Elasmobranchs

The first people came to the Chesapeake Bay area in 1500 B.P. (before present). Then,

large ice sheets continued to melt into water, rising the world’s sea levels, creating an outline of

the Chesapeake Bay. As time went on, the world’s oceans got bigger and water flooded the land.

This made the rivers wider, meeting the ocean, which created the Chesapeake Bay. By 2500 BP,

the Algonkian and Susquehannock Indians had settled and began harvesting the oysters and other

seafood from the Bay. They are the people who named the Bay “Chesepiook”, which translates

to “great shellfish bay” (Maryland Public Television, 2005). When the Jamestown colonists

arrived, there were accounts that the Bay’s water was crystal clear and there were oysters the size

of dinner plates. Clear water is an indicator of a healthy Chesapeake Bay. Water quality today is

not as clear as it used to be, but it is improving.

Water quality is not the only important thing in the Chesapeake Bay. The Bay is home to

thousands of different animals species and ecosystems. Within the species, there are four

particular species that are imperative to the livelihood of the Bay and its surroundings. Despite

their importance, there are not many laws that aim to preserve their statuses in the ecosystem.

The current legal protections administered by the legislative branches of the states bordering the

Chesapeake Bay Watershed fail to ensure a proper level of preservation efforts by neglecting to

effectively conserve and stabilize elasmobranchs and oyster species.

History of the Chesapeake Bay

The Chesapeake Bay is about 200 miles long, running north to south from about Havre de

Grace, Maryland, to Virginia Beach, Virginia. When the different tributaries and rivers between
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the Susquehanna River and the Atlantic Ocean are factored in, the surface area of the Bay is

4,480 square miles. The Chesapeake Bay is the largest estuary in the United States and the third

largest in the world. An estuary is a body of water that is brackish: water consisting of a fresh

and saltwater mix. Half of the Bay’s water volume comes in from its freshwater tributaries, while

the other half pours in from the Atlantic Ocean (Chesapeake Bay Foundation, 2018; The

National Wildlife Federation, n.d.).

Importance of the Bay

Home to over 3,600 different species and populations of plants and animals, the

Chesapeake Bay creates multiple ecosystems. These habitats within, include the bay itself,

tributaries, rivers, forests, and wetlands which create a rich environment (National Wildlife

Federation, n.d.).

Environmental. ​The Chesapeake Bay and its watershed offer a variety of habitats

allowing for a diverse population of animals and plants. Within the estuarine ecosystem of the

Chesapeake Bay, plant life flourishes because the water flow from the land often carries essential

nutrients for plant growth. This vegetation carries these characteristics of an estuarine ecosystem

with its submerged aquatic vegetation, as well as its plants on land, also create an ecosystem of

itself to the animals of the Bay’s watershed. Among the many different species of plants, there

are many species of fish, shellfish and birds find the estuary to be a prime location to become a

part of and raise young in (National Aquarium, n.d.).

Societal​. Humans also benefit greatly from the Bay. The Bay provides the people with

about 500 million pounds of food per year, as well as acting as a transportation route for cargo
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ships (National Aquarium, n.d.). The conservation of the Chesapeake Bay is essential to a

healthy and vibrant economy. There is money from numerous activities, such as tourism, real

estate, and transportation, related to the Bay. Not only does it bring in revenue, but it also

increases job growth, which improves the livelihood of the people who depend on the Bay's

health. There are over three billion dollars in sales, $890 million in income, and almost 34,000

jobs to the local economy that comes from the Bay area, supporting the region's livelihoods and

ways of life (Chesapeake Bay Foundation, 2018).

Environmental Laws of Virginia

There are many environmental laws in Virginia. The main focus of most of them is air

pollution, water pollution, waste management, and land protection & revitalization laws. The air

pollution laws revolve around emission from factories and cars. The water quality laws are about

the conservation of water resources, groundwater, and the impoundment of surface waters

(Virginia Department of Environmental Quality, n.d.).

Current, Repealed, and Introduced Laws in Virginia

A current and very important law in Virginia is Act 2.5 of the Code of Virginia, which is

the Chesapeake Bay Preservation Act. Made up of 14 different sections, this act aims for an

increase of water quality improvement within its watershed (Chesapeake Bay Preservation,

2013). This act was created and implemented in 1988 by the Virginia General Assembly to make

strides towards the improvement of the water quality in the Chesapeake Bay through Virginia's

nonpoint source management program. The most important provisions of the act dictate the

management and planning of land use in order to reduce negative impacts on water quality. The
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act is balanced by state and local governments to create cooperation that involves both of their

economic interests and serves to improve water quality in the Bay (Virginia Department of

Environmental Quality, n.d.). “Local governments have the primary responsibility for land use

decisions, expanding local government authority to manage water quality, and establishing a

more specific relationship between water quality protection and local land use decision-making”

while the state governments are also integrated and involved (Virginia Department of

Environmental Quality, n.d.). As stated earlier, this act was implemented through Virginia's

nonpoint source management program. This policy of management programs was implemented

through the Environmental Protection Agency (EPA) with funds from Congress under section

§319 of the Clean Water Act (Environmental Protection, 2013).

Problems in Conservation

“The Bay Act Program is the only program in Virginia state government that

comprehensively addresses the effects of land use planning and development on water quality,”

as well as being one of the only programs whose primary element is the requirement of assisting

local governments to meet water quality goals. The state governments help the local

governments with the development of land use ordinances and comprehensive plans (Virginia

Department of Environmental Quality, n.d.).

With the assistance of the congressional funds as a part of the nonpoint source

management program, the usage of federal and state resources, the maintenance of

community-based actions, and the development of statewide regulatory and nonregulatory

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programs, the nation has slowly been encountering positive improvements of on-the-ground

action and water quality (Environmental Protection, 2013).

The current ideas of current habitat degradation narrow down three main issues facing the

Bay and its ecosystems. The first is increased pollution, which is the excess nutrients that runoff

from the land or come from people’s trash depletes the quality and health of the Bay and its

habitats. Those pollutants often end up exhausting the necessary oxygen that the 3,600 species

need to survive. The second issue underlined is development. “Between 1982 and 1997, 750,000

acres of forestland were developed—a rate of about 100 acres per day.” Ever since then,

development had been the biggest factor of the watershed’s land loss, which soon led to the loss

of air and water filters and had a negative impact on the wildlife’s habitat. Development also

increased the amount of sediment pollution that ran through the Bay’s water. The last of the main

factors identified is climate change. Due to the Bay having a low-lying topography and having its

population increase, it is making the Chesapeake Bay especially vulnerable to the dangers of

climate change. The waters in the Chesapeake Bay have been rising at a steady pace, which is

subsiding coastal lands (Chesapeake Bay Foundation, n.d.).

Elasmobranchs

Within this genus, there are sharks, rays, and skates. These animals do not have a bony

skeleton, instead, their bodies are made up of cartilage (Reshetiloff, 1994). When it comes to the

ecology and the status of elasmobranchs, there are multiple threats facing these specific types of

animals. Recently, there has been an increase in international awareness being raised about the

vulnerability of their status. Globally, it has been recognized, or steps are being made to
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recognize, the loss of these species and the resulting detrimental effects. This threat to their

livelihood comes from their long lives, long gestation periods, and slow population increase. Due

to the data deficit facing these animals, the long-term ecological effects from the depletion of

these species are unknown but are projected to have a large impact. This large impact comes

from their ecological importance to almost every marine habitat. Because most elasmobranchs

are in the higher trophic levels, the impending depletion of these animals would lead to a

top-down trophic cascade in marine ecosystems (Martin, 2005).

Sharks

Sharks are important apex predators that help keep the balance of populations and

ecosystems in the water. As a top predator, sharks tend to prey on the weaker elements of the

species lower on the food chain. The removal of sharks from an ecosystem removes the

imperative and the most important balancing element, which keeps the ocean’s different systems

functioning. In the role of the apex predator, they keep populations of other marine species

healthy. Their place in the food chain is critical. The removal of them would cause the whole

structure to collapse (Watts 30-31).

Sharks are one of nature's most obvious indicators regarding the health of marine

ecosystems; sharks and related species of rays and skates are vital fixtures within the

intricate and varied food webs that cover fully most of our planet's surface (De

Maddalena, Van Sommeran, and Leander 151-152).

Sharks are extremely sensitive to overexploitation. Like humans, most give live birth,

they don’t reach sexual maturity until later in life, they grow slowly, reproduce slowly, and
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generally have small litter sizes. An example of this is the sand tiger shark, who only have 2 pups

every other year. They are slow growing species when compared to other oceanic species. All of

these factors equate to the fact that when populations are reduced by fishing, it takes a long time

for them to recover (C. Peterson, personal communication, November 13, 2018).

Types of sharks in the Chesapeake Bay.​ The waters surrounding the Chesapeake Bay

are home to many shark species. The most common shark species are Atlantic sharpnose shark,

sandbar shark, dusky shark, blacktip shark, sand tiger shark, tiger shark, and spinner shark. Other

species that inhabit the ecosystem, but are less likely to be seen are as follows: smooth dogfish,

scalloped hammerhead sharks, black nose sharks, bull sharks, smooth hammerhead sharks, great

white sharks (C. Peterson, personal communication, November 13, 2018; VIMS, n.d.).

The relationship between sharks and the Bay.​ The estuaries of the Chesapeake Bay

serve as birthing and nursing grounds for the animals. Most commonly, it is inhabited by the

sandbar shark, but there are also blacktip sharks, spinner sharks, tiger sharks, and other species.

Pregnant female sharks swim in through the mouth of the bay, have their pups in the small

lagoons and coastal areas of the bay, breed and then swim back out offshore. The coastal waters

are where shark pups grow for about a year until they swim out of the mouth of the bay. With the

drop in numbers of sharks, it has been difficult for them to repopulate. Sharks take a long time to

mature and to be able to reproduce. Their gestation periods are also longer than most animals.

And when they do have young pups, they have the possibility of being preyed upon by the

fisheries or the threat of other sharks (Dietrich, 2014).

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Importance of sharks in the Bay. ​Sharks are crucial to maintaining the biodiversity of

any habitat they reside in. With the removal or population decline of this species, there are ripple

effects seen throughout the ecosystem (Dulvy, Nicholas K, et al., 2017). If the Bay was to go

through anthropogenic habitat degradation or loss, the greatest effects would be seen on native

shark species, like the sandbar shark in particular. These effects would be seen from bottom-up

effects, which would affect the survival success of juvenile sandbar sharks. These bottom-up

effects factors in things such as food and/or habitat availability as the main drivers explaining

fluctuations in different population. Although sharks are highly mobile predators, giving them

the ability to move away from harmful stimuli or lethal water conditions, there will still be

changing distributions that would also change their relationships and interactions with other

species (C. Peterson, personal communication, November 13, 2018).

Conservation and species protection. ​The public perception of sharks has had a

substantial impact on their historical exploitation. The most prominent example being the release

of the movie ​Jaws​ in the summer of 1975. Before this movie was released, sharks were

considered an undesirable species to catch in the US’ recreational fisheries. After the propaganda

within the movie, sharks were stigmatized and demonized, and it became a heroic achievement

to catch a shark. This defamation created a large boom in the recreational shark fishery, which

resulted in population-wide effects on the shark species. This blasphemous epidemic coincided

with the expansion of the commercial fishery because of a shark’s ability to damage a

fisherman’s targeted catches and the fishing gear of other fisheries. At that time, none of these

type of practices were regulated, which led to overfishing in the 1980s. Although management
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within the fishery began in the 1990s, recovery is only starting to happen now (C. Peterson,

personal communication, November 13, 2018).

Although there are not state-specific shark protection laws, there are federal protections.

These protections are very general and almost lenient. The most common piece of legislation that

the National Oceanic and Atmospheric Administration (NOAA) manages sharks in U.S. federal

waters is with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) using

fishery management plans. Then, there was the Shark Finning Prohibition Act of 2000, which

amended the MSA to prohibit shark finning. The particular law prohibits any person under U.S.

jurisdiction from the finning of sharks, the possession of shark fins without the corresponding

carcass of the shark on a fishing vessel, and the transportation of such shark fins without the

corresponding body of the shark. The Shark Finning Prohibition Act also requires NOAA

Fisheries to provide Congress with an annual report describing their efforts of enforcing the law

(Shark Finning, 2000).

Rays

Rays have a distinct triangular shape that sets them apart from other elasmobranchs, as

well as has coined them the term as flat sharks. Their pectoral fins are flat and large, and their

mouth and gills are on the underside of the body. The purpose of their mouths being on the

underside of their bodies is because they search the bottom for mollusks, crustaceans and

sometimes small fish that they are able to pulverize between their teeth. Rays have whip-like

tails with spines in their tails that have the ability to inject poison (Reshetiloff, 1994). Although

rays and skates are different, there are differences in behavior and anatomy. The first, which are
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minute biological attributes of the rays is that most rays have one or no dorsal fin. If two fins are

present on a ray tail, the first is closer to the pelvic fins than the tip of the tail. The dorsal fin is

the fin seen at the top of the body, used for stability. Rays also do not have a pelvic spur,

whereas skates do. The pelvic spur is the part on the body that goes out around the tail. A

significant behavioral attribute that is different between the two animals is that young rays

develop inside the mother and are born as free-swimming individuals. Meaning that pups are

nurtured inside the mother’s womb and pushed out into the water as young pups (Smith &

Merriner, 1978).

Types of rays in the Chesapeake Bay.​ The waters of the Chesapeake Bay are home to

many ray species. They include but are not limited to, electric rays, stingrays, butterfly rays,

spiny butterfly rays, smooth butterfly rays, eagle rays, spotted eagle rays, cownose rays, Atlantic

manta rays, manta rays, Atlantic stingrays, and bluntnose rays. The most common of the species

is the cownose ray (Smith & Merriner, 1978).

Conservation and species protection.​ With the reduction of sharks in the Bay, there a

large trophic cascade that resulted in an abundance of cownose rays. This abundance created a

collapse in the commercial bivalve fishery, which came from the increased predation of the

bivalve species. The correlation between these two events was used to create the saying, “Save

the Bay, Eat a Ray,” to reduce the predation on the mollusks. This saying was used as a

predator-control method of cownose rays as well as a means to aid the recovery of the collapsed

filter-feeding oyster populations. After the stigmatized campaign against rays in the Bay, which

was based on flawed interpretations of data and the lack of attention towards the biology of
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cownose rays, there were questions and concerns brought up of the fishery management policies.

These protections and management policies had been inadvertently and negatively affected. “The

implications of this fishery have yet to be measured.” (Grubbs et al., 2016). Some headway has

been made in the legality of their conservation. The Maryland General Assembly passed Senate

Bill 268, which bans cownose ray fishing tournaments in state waters. This management plan has

to be specified to the conservation of the cownose ray species on or before December 31, 2018

("SB0268 Cownose," 2017).

Implications from a Further Loss/Decline of these Species

According to Dr. Cassidy Peterson, a Ph.D. Student at the Virginia Institute of Marine

Science at William & Mary in the Fisheries Science department, “Top-down ecosystem control

remains a controversial topic.” There are some scientists that argue that the structure of

ecosystems inherently buffers against the negative effects of removing top predators. In this type

of ecosystem, there would be multiple species that are at the same trophic level, so they might

compete with each other for limited food resources. To maintain a peaceful coexistence, the

competing species would frequently undergo a process of resource partitioning, meaning the

species would adopt slightly different environmental and/or prey preferences. This would make

it so that these animals would no longer be in direct competition with each other. This idea

comes from the scientists who do not believe that top-down effects are not real. In this

ecosystem, if one of these competing species is removed from the ecosystem, the other will

expand its own preferences to effectively fill that role that is gone.
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The scientists who disagree, believe that humans cannot change or manipulate an

ecosystem and not expect it to change. With the removal of a predator, the other species are then

expected to do more work, so the responsibilities of their original positions suffer. If instead of

looking at how the other species’ roles are being affected, it is only being looked at if whether

they are satisfying the role of the departed predator, there would not be a sign that there was any

effect at all that the predator left. Ecosystems are intricate and complex, and not fully

understood, which makes it difficult to see what is being affected as the result of a change, like

the removal of a predator (C. Peterson, personal communication, November 13, 2018).

Legality

In Virginia, there are more laws that protect land, than there are protect animals. The

deficit of these animals in water laws creates some issues within the Chesapeake Bay, while the

land laws are more geared toward helping big corporations that give money to the state. For

example, the court case ​Marble Technologies v City of Hampton​ has to do with the

implementation of regulations based on the Chesapeake Bay Preservation Act. The issue at hand

asks whether land “designated as a part of the Coastal Barrier Resource Systems” was designated

land to be protected and preserved. These lands include tidal wetlands, nontidal wetlands, tidal

shores, and other lands already considered by the local government of the City of Hampton.

Marble Technologies claimed that the city should not be able to designate their parcels of land

unbuildable, after the passage of the 2008 zoning ordinance of the City of Hampton. This new

ordinance placed Marble Technology’s property they were going to build on in the protected

areas of the Chesapeake Bay Protection Act. This act was created to preserve water quality in the
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bay, while still being able to allow a reasonable amount of development. It was upheld that the

amendment was valid and that the city did possess the authority to enact the amendment. This

shows the limited cases revolving around environmental type protections involving specific

animal species that have to maintain conservational efforts of the Chesapeake Bay. There are not

many legal cases, but there are federal and state acts (​Marble Technologies v. City of Hampton​,

2010).

Virginia Laws Protecting Oysters

Oysters, which are an important bivalve, commercial stock, and filter-feeder of the

Chesapeake Bay have also suffered similar legal neglect. Their decline came from

over-harvesting, disease and habitat loss, which impacted the water quality of the Bay.

Overharvesting of this species has been popular since the mid-1800s, where 1.5 million bushels

were dredged every year. By the late 1800s, the number increased to 20 bushels a year. This

exploitation put a strain on not only the population but also the reefs. The oyster reefs had been

torn down to the Bay’s seafloor, leaving only flat land with few dead oysters for new oysters to

cling to. This habitat destruction was added onto when there were new sediments from the

industrial build on the land that flowed into the water through the Bay’s tributaries and rivers.

These nutrients created dead zones, which prevent the proper growth of larvae. Then, in the

mid-1900s, the infectious parasite Dermo, or MSX, in the Bay. This parasite led to slowed

growth rates and oyster death (Chesapeake Bay Program, n.d.).

Oysters are on the rise again because there have been recent restoration efforts. There

have been responsible management of oyster harvests, the establishment of oyster sanctuaries
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and reefs. Through the Oyster Advisory Commission, in Maryland, and the Marine Resources

Commission of Virginia, there is an oyster harvesting plan created that calculates the number of

oysters able to be taken from the Bay while still sustaining the oyster industry. To restore the

reefs, there is a designated area set that scientists remove sediment on and add new oyster shells

and other materials for the spat and larvae to live and grow on. There is also research being done

on how to breed more disease-resistant oysters to combat the detrimental effects of MSX

(Chesapeake Bay Program, n.d.).

The difference between the conservational efforts towards oysters and elasmobranchs is

not only the legislation and the actual effort, but it is also the awareness of the issue. There are

many foundations, such as Chesapeake Bay Foundation and Maryland Grows Oysters, that urge

people to become involved in the effort. They claim that “ everyday actions can have a big

impact on the Bay. By making simple changes in our lives, each one of us can take part in

restoring the Bay and its rivers for future generations to enjoy,” which is true (Chesapeake Bay

Program, n.d.).

Conclusion

Although there have been strides made in the conservational field of the Chesapeake Bay,

there is still room for improvement. There have been laws passed on the restoration and for

oysters, such as Executive Order 13508 on Chesapeake Bay Protection and Restoration issued

under President Obama. But, there are still not very many laws solely about elasmobranchs.

Understanding the ecological role that these species are connected to in an ecosystem, is an

imperative part of the issue. Knowing this depends largely on the education of its trophic
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relations and the awareness these trophic interactions have on the dynamic of the marine

communities. These effects within a food web trickle down through the system, resulting in

changes in the connectivity with the other species (Montoya, Pimm, & Solé, 2006,).

One of the biggest challenges associated with elasmobranch preservation efforts is the

lack of awareness. Even though most elasmobranchs are prohibited to be fished and caught and

kept in the United States, they are still being caught and kept illegally. While this might be

intentional deception, it also might be because anglers don’t know that they are prohibited. The

key to conservation is gaining awareness of the topic. Once there is knowledge and research on

the topic, legislation can be passed.

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