THE TERRAPIN INSTITUTE

May 31, 2005

Doldon W. Moore, Jr.

Board of Public Works

Wetlands Administrator

P. O. Box 1510

Annapolis, Maryland 21404

Tidal Wetlands Case No. 02-WL-1473

Dear Mr. Moore:

On behalf of the Terrapin Institute, I have requested the opportunity to appear before the State of Maryland Board of Public Works upon the hearing and consideration of Tidal Wetlands Case No. 02-WL-1473. I have reviewed a copy of the May 3, 2005 Department of Environment Report and Recommendation and continue to be concerned with the magnitude and validity of the proposal. The Terrapin Institute submitted our concerns regarding the referenced proposal in a letter dated August 5, 2004. We reiterated these concerns at the public information hearing on October 5, 2004. Copies of these comments are included for your reference. Many of our original concerns remain unresolved, misinterpreted, or dismissed. Prior to making your final recommendation to the Maryland Board of Public Works in support of the requested wetlands license, please consider the following comments and recommendations.

Most agree that environmentally sound erosion control measures are preferred over previous structural control practices. However, we cannot agree with the statement in your letter indicating that the design as proposed is “practical standards for improving shoreline erosion control as defined by riparian rights.” Typically, a project of this magnitude would be beyond the inclination and financial resources of most private property owners. The applicant, being a non-profit conservation organization, qualifies for federal and state funds which ordinarily are not afforded to private riparian owners. The availability of public funding may have encouraged a far greater project than is necessary to address the erosion on the site. As such, those agencies providing the funding should reconsider the residual influences of their grants.

I believe the Wetlands Report and Recommendation upon which you have made a preliminary approval is incomplete and contradictory. The degree of marsh creation resulting from the proposal remains unspecified. If the half acre oyster bar were eliminated and the stone structures were reconfigured and placed closer towards the applicants shoreline, the current design may be more effective, ecological, and aesthetic. The concept of “living shorelines” has been exaggerated in this proposal and the design is inappropriate for this location.

Although it is described as a “living shoreline”, i.e. non-structural, the proposal relies on a considerable degree of structural components, inert non-native materials, and perpetual maintenance. This project exceeds the minimum necessary to control erosion via marsh creation, violates the maximum encroachment allowed by Maryland law, and claims restoration in oyster resources which cannot be substantiated by the available data for the area. Since current methods and science are not producing the recovery in oysters and other resources as expected, public funds should not be used for the placement of yet another oyster bar.

I regret that I must challenge the decisions of prominent conservation organizations and management authorities. However, there has been too much forfeiture of our natural and financial resources without measurable progress in environmental restoration. As an organization dedicated to preserving abundant populations of terrapins and the species’ essential habitat, the Terrapin Institute has no alternative but to respectfully request the applicant to withdraw this proposal.

Those with concerns over this proposal are not “detractors” as identified in the Report. The Terrapin Institute is a longtime advocate of preserving the tidewater environment and of private property rights. It is irresponsible to force these types of erosion control measures into tidewater landscapes which are naturally incompatible. It is inconsiderate of any riparian owner to force erosion control techniques on to neighboring residents. It should be incumbent upon riparian owners, particularly the Chesapeake Bay Foundation, to respect the terms of the tidewater and endeavor to live in harmony with all resident species, including the neighbors. The magnitude and impacts of the proposal are not authentic ecological restoration. Even under the best conditions, oyster recovery is not progressing and may be considered a resource beyond recovery. Otherwise, the State of Maryland would not be investigating the introduction of a non-native replacement species. Without adequate oyster growth, the proposed structure will become a useless relic, blight on the landscape, and hazard to navigation.

Since 1998, the Terrapin Institute has studied a small population of terrapins in cooperation with the adjacent property owner. In the process, we have observed the shoreline dynamics of Meredith Creek, Whitehall Creek, and Whitehall Bay. Although naturally fluctuating, many tidewater shorelines do not require intervention. Yet, in the last year alone, a significant degree of the area’s tidewater edge has been sacrificed and hardened, displacing the natural shore and waterway with stone-encrusted marsh creations. There is no means to assess the cumulative impacts of this sudden rash of open water displacement. Another erosion control project of this magnitude is well beyond the minimum necessary to address the problem of the failing bulkhead and will further adversely impact the ecological equilibrium and cultural heritage of the area.

The Report does not accurately reflect the concerns and opinions of the residents in the proximity of the proposal, nor does it include or substantiate all comments submitted on this proposal. Primarily, comments in support of the proposal are from agency personnel who may not be adequately familiar with the Whitehall Bay environs and heritage. The ambiguity and anonymity of the approved “Holly Beach Farm Living Shoreline Restoration Project, Monitoring and Maintenance Plan” presents an additional concern. A document such as this which is not provided on applicant letterhead, associated with, or signed by the applicant is difficult to accept as meaningful, official or enforceable.. There are no references to whom or what shall provide these activities.

Currently, the site is designated by the MDE as unfit for shell fish harvesting, presumably due to unacceptable water quality which would affect oyster health. By citing several problems, the

State’s oyster authorities are not optimistic about this proposal. Comments indicate that the site may not support robust or naturally sustainable oysters due to mortality during droughts and unusual tides during winter. Regular reseeding or restocking of the site would be required, but there is no indication of who would continue to replenish the oyster resource on site as necessary or at what point restocking would be required. Near-shore locations do not appear favorable to naturally occurring oyster bars. Although oysters may grow in “Oyster Gardens” placed from docks, there is no evidence that oysters will grow on shell or alternative substrate placed within 200 feet of this shoreline location. Typically, oysters on static substrate in moderately dynamic near-shore systems would be prone to sedimentation and impacts from land-based nutrients. As such, not every shore erosion problem warrants the placement of an oyster bar and extreme encroachment into the public waterways. If all shore erosion control measures and marsh creations were allowed this degree of adverse possession of public land, our waterways would soon be diminished and open water would be replaced with tidal marsh.

The proposal, while inspired by a failing bulkhead on the applicant’s property, is far more than the minimum necessary to address the erosion problem. The current bulkhead is indeed old and in need of repair; however, since the original application of March 28, 2002, the wooden structure at the site has survived the storm of record, i.e. Hurricane Isabel, and continues to retain the soil behind bulkhead. The applicant’s roadway may not be in immediate danger and replacement of the erosion control structure may not be as urgent as previously surveyed.

Other portions of the applicant’s shoreline are described in the MDE Report as “improperly placed stone, an inadequate timber groin field with no sediment source and stone revetment”. This raises the concern that the applicant may soon find it necessary to repair or replace additional shoreline areas with similar encroachment impacts and oyster bar measures. Without a long range comprehensive property management plan, it is difficult to fully appreciate the merits of this single erosion control proposal. As indicated by the applicant’s consultant Andrews Miller survey, this proposal may be the first of several erosion control proposals planned along the 3 miles of shoreline. No further details were provided for the other three eroding sites, other than this particular site was the priority. Considering the total length of shoreline, the applicant may wish to consider more economical erosion control measures which require less monitoring and maintenance expense.

In previous comments, the Terrapin Institute provided alternative erosion control measures, i.e. sand replenishment and stone groin structures which would not sacrifice or convert a disproportionate amount of submerged pubic land. Apparently, no alternative solutions were considered by the applicant. It appears that the proposal has been designed more to showcase oyster restoration and beach/vegetated dune habitat creation to which the shore erosion control component has become subordinate. There is only one other such project and it remains under evaluation. As stated in your letter and in the MDE Report, marsh creation is preferred by State mandate. However, the degree of marsh creation produced by the proposal remains unspecified. The oyster bar is nonessential and should be eliminated from the proposal altogether. We maintain that the current environmental capacity of the site is inadequate and suggested that oyster survival first be examined in the immediate area by placement of an oyster test plot at the exact location of the proposed oyster bar.

The only evidence of potential oyster success provided by the applicant is reference to a successful “oyster nursery” at Mill Creek in collaboration with the Naval Academy. The applicant provides no further specifics, details or documentation regarding oyster survival in the immediate area. As such, reference to a nearby “oyster nursery” is inadequate justification for placement of a half acre oyster bar as proposed. The applicant states that the oysters placed on site will be “disease-free hatchery seed oysters”, placed on “disease free substrate”, and the construction materials will be “kept away from diseased oysters.” Presumably, this means oysters on site will be free of the two most pernicious oyster diseases in the Chesapeake Bay, MSX and Dermo. Both diseases are water-borne parasitic pathogens influenced by salinity and temperature. Transmission of Dermo has been documented to occur in healthy oysters from contact with infected or diseased dead oysters; transmission of MSX is not completely understood and may depend on an intermediate host. The applicant may be reasonably certain of providing disease free hatchery oyster for the project, the provision of “disease free substrate” and construction materials isolated from diseased oysters is less certain.

Not all erosion problems are ideal sites for oyster recovery nor warrant an encroachment into the channel of 200 feet and the conversion or filling of nearly 2 acres of shallow water habitat. Nevertheless, the applicant persists in placing an oyster reef and offshore breakwaters as the preferred means to mitigate the erosion at the subject property and create marsh edge habitat. The referenced proposal is calculated by the applicant as 1.8 acres of displacement, or 1.4 acres of beach and vegetated dune and .4 acres of oyster reef surface.  No specifics are provided on the acreage of tidal marsh habitat which can be expected.

The applicant owns 278.5 acres known as Holly Beach Farm, including 3 miles of shoreline of which this proposal comprises only 900 feet. In 2001, the subject property was purchased for $7,250,000 ($1,886,277 in state funds and $5,363,723 in federal funds). The entire fee simple interest in the property was then conveyed from the State to the Chesapeake Bay Foundation. The residents in the immediate area are pleased that the property will be protected from typical development and were assured that this historic estate would be maintained and preserved. Likewise, the Terrapin Institute was very pleased with the acquisition and preservation of the 278 acres as this virtually assured us a healthy population of terrapins to study and presumably another champion of the species in the Whitehall Bay area.

Unfortunately, our expectations have not been met and many are disappointed. We do not believe this proposal for shore erosion control is a good example for environmental stewardship or demonstrates a practical or preferred method for the majority of riparian owners. In fact, the proposal could be a precedent which would foster other property owners to encroach further into the public waterways. Preservation of existing natural resources and reducing our dependence on man-made intervention would be more environmentally conscious. Learning to live with tidewater dynamics, rather than controlling them would be a better lesson. Learning to live with our neighbors, rather than being combative with them, would be good too.

Although some degree of resource restoration may be achieved by the proposal, the Terrapin Institute believes it is inappropriate to suggest that all erosion is a problem and warrants encroachment and displacement of open water. The proposal sacrifices one natural habitat for another and may encourage others to request similar encroachment into the public domain. The larger the project, the larger the responsibility from State staff to monitor and ensure proper maintenance. It may be a better use of public funds to prohibit any further encroachment into the public waterways beyond the standard minimum necessary to control erosion.

Since the original application in March of 2002, considerable State resources have been devoted to the various versions of this single application. Once the project is approved, the State will be further obligated to monitor and inspect for adequate construction, adherence to design specifications, oyster restocking, channel maintenance, and proper placement of danger markers on the submerged navigation hazard. In the event the completed project fails or creates an unanticipated alteration in natural dynamics, the State may be obligated to provide financial compensation to any injured or aggrieved party.

Upon conveyance of the 278 acres to the applicant, certain restrictions were considered by the Board of Public Works. A copy of the Board’s agenda from April 2001 is attached. One of the special conditions attached to the conveyance is “protecting the scenic viewshed of the Bay Bridge.” This clause may be interpreted to extend to the view of the Chesapeake Bay from the adjoining property and a directive to preserve the historic vistas from all perspectives of the property. The adjoining parcel meticulously restored by the Munz family includes the original main residence, cemetery, and gardens of Holly Beach Farm established in 1901. The original stewards of this historic site rest in peace atop a knoll overlooking both the Bay and Meredith Creek. Placement of the shore erosion control project, stone breakwater structures, stone oyster bar, and danger signs as proposed will adversely and permanently alter the serenity and nature of the Chesapeake Bay in this area. For those passing by on the waterside, the character and view of this historic estate will forever be obstructed by the stone structures placed between the property and the boating public.

It is beyond the purview and expertise of the permit review agencies to determine what is naturally aesthetic or what should be considered visually acceptable to citizens of the area. According to interviews of local residents and watermen, an oyster bar in Whitehall Bay has not been observed in recent history. Certainly, the proposed artificial oyster substrate, hazard warning signs, and stone breakwaters cannot be considered a return to nature. Since rock does not occur naturally in the Chesapeake tidewater, any such open waterways manipulated with rock cannot be considered a natural view. A stone structure protruding 200 feet into open water cannot be envisioned as an improvement over the current unobstructed view of the Chesapeake Bay. If the proposal were designed within the standard allowance of no more than 35 into the channel, it would be less noticeable and less of an eyesore.

The report includes a statement that hunting on the property is not currently allowed. Our concerns regarding impacts on hunting relates to the geese and other wildfowl which use the nearby open water as a staging area. Indeed, a portion of this staging area will be displaced by the proposal. Therefore, it may not be completely accurate to assert that the property is not used for hunting, particularly since non-resident hunters and hunting accoutrements have been recently observed on the property.

The interest of the Terrapin Institute in this proposal involves the terrapin, our State Reptile, University Mascot, and the Face of Restoration. For me and many others, this humble species represents the tolerance and persistence we hope for in our children and in our friends. It has weathered 230 million years of evolution and natural perturbation. It has become a rare sight to behold in its natural environment, side by side in relative harmony with the advance of humankind. The response of the resident terrapin population and other species to the project cannot be adequately predicted by the applicant or review agencies.

Although small, the Whitehall Bay terrapin population is significant and represents the most stable and persistent population in the Anne Arundel County tidewater. This is one of the few nest sites where hatching success has been documented. Perhaps due to the stewardship provided by the Munz family and the tranquility of the area, these terrapins manage to survive and reproduce. Although, terrapins may respond well to man-made nesting habitat, they may not tolerate the increased foot traffic, oyster introduction, and displacement of open water which will result from this proposal. I have no documentation on the terrapin hibernation sites in the area; however, it is possible that important hibernacula may be destroyed by the placement of stone projecting 200 into the channel.

I once thought terrapins would be easy to study and preserve. Unlike land-based animals, the terrapin’s essential habitat is the submerged areas and edges of tidal creeks, most of which are in the public domain. Unfortunately, existing private property rights are not enough for some landowners. Riparian owners are now encroaching into the public domain, developing the open waterways of the State and pushing our native species further into oblivion.

Finally, the Terrapin Institute does not agree that the failing bulkhead and erosion problem on the applicant’s private property obligates the Board to forfeit additional public land, natural resources, and waters of the State. Under these circumstances and for the reasons given, we respectfully request the Board to withhold the wetlands license for this proposal. A less costly, more effective and less intrusive project could be approved under wetlands permit by the regulatory authority and would not require a license from the Board. Given the special circumstances and terms of ownership of this property, we encourage the applicant to regard, revere, and preserve the existing natural resources of its portion of Holly Beach Farm.

Sincerely,

M Whilden

Marguerite Whilden

The Terrapin Institute