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Estuaries like the Chesapeake Bay ("Bay") and Puget Sound are in grave trouble. They each suffer from poor water quality, loss of habitat, and declining biodiversity, and efforts to restore their health are straining both public and private resources. While accomplishments are often recorded in the fight against these ills, it is clear these accomplishments "are not yet equal to the scale of the problems." The focus of this article is on the nation's largest estuary, the Bay. Despite the investment of billions of dollars to improve water quality, the Bay continues to suffer from severe environmental degradation that impairs statutorily protected uses such as "[t]he growth and propagation of fish (other than trout), other aquatic life, and wildlife."

Among the most serious of the ills afflicting the Bay's water quality is nutrification. Nutrification, which lowers dissolved oxygen levels in the water, sets off positive feedback loops further eroding the Bay's health. This article brings to the fore a largely overlooked source of the Bay's nutrification problem: the practice of chumming. Chumming involves dumping a slurry of decomposed or decomposing baitfish, usually menhaden, over the side of a boat to attract highly-prized game species like striped bass. The practice is widely used by Maryland's recreational fishing industry, which is an important part of Maryland's economy.

Chum contributes to the Bay's serious nutrient enrichment problem by increasing biological oxygen demand, resulting in lower dissolved oxygen levels in the water. It also increases water turbidity and may be a source of bacterial disease in striped bass. The use of menhaden as baitfish is also contributing to the decline in populations of that critically important food and filter fish. Even though chumming adversely affects the Bay's water quality and threatens its biodiversity, neither the federal government nor Maryland currently regulates the practice. While Bay area regulators may believe that they have made an economically rational decision to attend to larger targets of opportunity such as nutrient discharges from sewage treatment plants and farm fields, the high cost and political flashpoints of addressing those large sources of nutrients have largely paralyzed legislators and regulators for nearly two decades. The result is that the Bay's nutrification problem is getting worse, and the bill for addressing the problem is getting bigger.

The reluctance of regulators to address small sources of environmental problems, or even small environmental problems, is not unusual and is what makes the chumming story relevant to those who live outside the Bay's watershed. The premise of this article is that the failure of regulators to regulate chumming originates through a misapprehension about how complex natural systems like estuaries behave and also in an over-dependence on economic analytical methodologies, like bioeconomics and cost-benefit analysis. Economic approaches measure success based on the amount of pollutants taken out of the waste stream and undervalue broader, more difficult-to-quantify improvements to the receiving environment. Because economic approaches depend on factors remaining stable, they are also singularly ill-suited to constantly changing natural systems. Precautionary principles are better suited to the preservation of biodiversity in these systems, where so much is scientifically uncertain and where the goal is to avoid irreversible and catastrophic consequences regardless of the economic sense in taking the precautionary steps. These same conclusions apply to other complex, evolving natural systems and other types of low volume, but ultimately highly detrimental environmental harms to them.

To assist in the development of this thesis, part I of the article presents background information on the Bay and the serious problem of nutrient enrichment. Part II introduces the reader to the practice of chumming and its contribution to the Bay's over-enrichment problems. Part III explores how the misguided reliance of regulators on choosing an economically rational target, usually the largest sources of environmental problems, misapprehends the capacity of smaller sources in complex natural systems like estuaries to cause potentially irreversible and catastrophic positive feedback loops. This misguided approach, in turn, may lead to loss of biodiversity. Part III also describes the precautionary principle, and how its application would direct regulators to prohibit the practice of chumming in the Bay.

Publication Citation

82 Wash. L. Rev. 505-532 (2007)