Mind Over Matter

Published by the Severn River Association July 2002

by M Whilden

Not many people other than watermen may recall the significance of 1994. It was the year a limit was placed on the Maryland commercial fishery. It was the year of sweeping changes in fishing licenses and, with the endorsement of the commercial fishing industry, the establishment of a fixed number of watermen who would be allowed access to the resources.

Land planners and wildlife biologists call this "carrying capacity," and all good resource managers are taught to strive for this balance. All habitats and species have an ideal carrying capacity, which is projected by population models, biological conditions, and social tolerance levels. The 1985 Critical Area Law was based on a similar optimum capacity doctrine, as is the more recent Total Maximum Daily Load standard for sewage.

In 1994, it was decided that Maryland had reached its carrying capacity for watermen. The Maryland tidewater had all the harvesters of our marine resources as it could tolerate and a limited entry was adopted. There was too much competition for a limited space, habitat and resource, and the watermen comprised a competitor that can be managed. In the big picture, they don't even make up a percentage point in the population, but they seem to be a large competitor because they appear to take a lot of fish, crabs and oysters, relative to the rest of Maryland citizens.

In fact, all of us are taking or competing for the same limited resource in some way or another. It’s just not as obvious or as manageable. Unlike the watermen, no other competitor for these resources has been hit with such a direct limitation. In fact, other competitors have increased, with the consent of local land use managers. This competition is legally permitted and apparently encouraged. The space is the same, the habitat is dwindling, but no restraints are placed on the other competitors.

Who are they? If you work on the water for six days a week you know you are not seeing more workboats. You are seeing more pleasure boats, more powerful, gas powered leisure craft, the SUVs of the water. Unlike cars, for which new roads can be built to alleviate congestion, we cannot build new waterways, so we compete for the same limited space.

If you are out there six days a week, you also notice the shorelines are dotted with new homes. The Critical Area Law was intended to address this encroachment, but shoreline development and alteration continues. One explanation may be that at the time of the 1985 legislation, much of the shoreline was already plotted into existing lots, to which the Critical Area Law does not apply.

Furthermore, the Critical Area Law allowed for an additional tolerance level of development, which differs from county to county. This tolerance level allows for expansions of existing water dependent facilities, such as marinas, which by their very nature require the public trust to yield to private ventures. These facilities pay a relatively hefty tax fee, which is not mandated to compensating that which is lost to this now private use of the public trust.

Further evident, and not sufficiently examined by zoning laws, is re-development. Where once modest older homes existed with minimal impact on the shorelines, mansions are now perched, producing far greater impact and habitat destruction. Think about it: If you spent a million dollars for a waterfront lot, wouldn't you try to get every square inch out of it and more?

In some situations, that is precisely what is happening and this is the real point. These properties are beginning to creep out into the public domain under the disguise of private riparian property rights, or the minimum necessary to mitigate shore erosion, maintenance of water dependent facilities, repair to existing shore erosion measures, or marsh creation. Private property is advancing out onto the submerged bottomland beyond the tide line that, theoretically and in statute, belongs to us all. It is the modern day Tragedy of the Commons: the Tragedy of the Bottoms.

There is supposed to be something more urgent, much bigger than our own particular property rights, fishing endeavor, livelihood, or hobby. There is democracy and a goal for a restored Chesapeake Bay.

Sadly, good economic times for most in Maryland have signaled a downturn for those depending on the natural resources for traditional income, avocation, or enjoyment. Among the original goals of the unified Bay clean up effort, which got underway in 1985, was restoration of species abundance, diversity and natural beauty. In a recent forum including a Congressman, a State cabinet level appointee, and the judge overseeing the Critical Area Law, the consensus was that things may not be getting better, the water is not getting any clearer, fisheries are not more abundant, and the impact to the habitat is not static.

The Congressman pointed out that $60 million dollars are spent annually on the Chesapeake Bay, most of which goes to research. So it’s not for lack of trying. However, in our system we do not have the luxury of decisions backed by sound science, and therein lays the need to elect representatives who are in step with society, not necessarily with science.

Government must react to the demands of society within the framework of a constitution, good sense, changing conditions and diverging perceptions. Science often takes too long to produce defensible, applicable data. We must address this encroachment onto the public trust and the continued degradation of the water's edge. Somehow, in the maze of private property rights and careful negotiations to preserve these rights, as well as our natural heritage, we have lost sight of that vital public good, the public trust, and the republic for which we stand and sometimes die.

Science is not essential to confirm that which is self-evident. In the Severn River alone we have lost more than 75% of the natural edge. The shorelines are under siege. Many of our shorelines are no longer natural, productive or diverse, and some of us think these alterations qualify as unethical. A glaring example is the famous cliff of orange clay on Whitehall Bay, which once provided bearing for colonial mariners and navigators. This shoreline has been completely obliterated into a green lawn terminated by a rock face. To some, the destruction of that cliff face was comparable to what the Taliban did to the sacred Buddha temples of Bamiyan, which we all witnessed on videotape. But no one recorded the destruction of the Whitehall Bay cliff, which reflected like a beacon in the moonlight and was majestic at sunrise. Few but watermen and a handful of sailors noticed that a colonial vestige had been destroyed.

Does this really matter and if so, what are we going to do about it?

Maryland is a state with the largest and once most productive estuary, award winning environmental advances and reverence for our natural, historical and cultural heritage. Doesn’t it seem odd that we should sacrifice this sacred estate, i.e. the waterfront, to private property rights, private enterprise, and ad hoc obliterations?

There is clear definition to the extent of private property rights, if the property in question is historic or otherwise significant. There is clear definition to the extent of private property rights, if the subject parcel joins a public piece of fast land property. Why then does it appear that private interests seem to be encroaching with little restriction on to submerged public land?

We need to start asking these questions if we are serious about riparian habitat protection, restoration, and the Chesapeake Bay. We have figured out ways to protect the shorelines from the ravages of nature and time, but can we protect the same vital habitats and historic landmarks from ourselves? Is the rest of society obligated to subsidize riparian alterations and habitat destruction by supporting the permit and inspection system that facilitates these activities?

More and more citizens are challenging these outmoded interpretations of private property rights and entitlements. These rights are colliding out of control with our environmental urgencies and quality of life. Contrary to convention, many of those challenging these heretofore-undisputed rights, are themselves owners of large parcels and are worried about the impacts of this increased competition for the limited resource. There is value in keeping certain things whole the way they are, the way they should be, the way we have come to know them.

However, we should know that not all traditions are worth saving and the difference between a good tradition and a bad tradition can be subjective. Apparently, by virtue of Maryland law, riparian owners have the traditional right to protect and in some cases reclaim that land which has been lost to erosion. However, new owners have not lost any land during their brief ownership, but somehow have the right to extend their reclamation efforts out 10 feet and in some cases 35 feet, beyond the reach of mean high tide, that is 35 feet on to public property without compensation to the public trust.

Apparently, these new owners have the right, means and incentive to take submerged public land, not only from us, but all those species that depend on this natural transition zone and shallow water area. Piecemeal riparian alterations, such as piers, "marsh creation", rock sills, and slope modifications disrupt the natural processes and eventually will have a bearing on adjacent properties, either by accelerating erosion, increasing sedimentation, diverting wave energies and destroying adjacent natural wetlands and submerged vegetation beds.

All this encroachment or "taking" occurs with sanction from the federal and state laws. Yet these encroachments or facilitated adverse possessions offer no mitigating features to wildlife or habitat restoration, no compensation to the public. Natural submerged habitat is replaced with inert, non-native, thermal altering materials. Let us simply begin to question these traditional management statutes that could be considered obsolete, and were conceived to manage resource destruction, rather than resource restoration.

We have reached the biological, or more accurately, the social carrying capacity for watermen, a cultural icon in Maryland, and a few other species, such as black bears, deer and mute swans.

Might this signal a new ethic in resource use and allocation and greater regard for our natural treasures? When will we know we have reached the carrying capacity for other consumers of the resource, such as boats, piers, revetments, cars, effluent, people?

Let's begin at the water's edge. The traditional notion of private property rights must be challenged and re-evaluated in light of our current situation, else we resemble the Old English serfdoms where land barons or those with means to become land barons call the shots.

Competition for a finite resource must be managed further and the limits must be fairly distributed among all competitors, not simply those who, due to their minority, are easier to manage. While competition for the fish in the water has been limited to a fixed number of watermen; the competition, access, destruction, and adverse possession of fisheries habitat and the public trust marches on at an accelerated pace.

But, if you don't mind, it won't matter.