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The Chesapeake Bay is one of the country's most productive estuaries. However, for decades the health of the Bay has been declining due in large part to nutrification. Excessive nutrients encourage algal blooms, which lower dissolved oxygen and increase turbidity in the Bay's waters. More than 40% of the Bay's main stern is now dead largely as a result of this problem. The practice of chumming, the discarding of baitfish, usually menhaden, over the sides of fishing boats to attract game fish like striped bass, is contributing to the Bay's nutrification problem because the decomposing chum raises the waters biological oxygen demand which lowers dissolved oxygen and increases water turbidity causing bay grasses to die and setting in motion destructive positive feedback loops. Chum may also be a source of disease in game fish, and the demand for chum is contributing to the decline of menhaden, an important food and filter fish, on the Atlantic Coast. Despite these problems, the practice of chumming is not regulated by either the federal government or the state of Maryland. This article explores whether citizens can compel regulation by either jurisdiction and concludes that such initiatives would likely fail because of the absence of a duty to regulate. The article examines why regulators decline to regulate and finds that the most likely reasons are an over dependence on economic approaches to environmental regulation, which drives regulators to choose the largest targets of opportunity, and a failure to understand how small disturbances in complex systems like estuaries can set off a cascade of potentially catastrophic and irreversible consequences--here, the loss of the Bay's biodiversity. The article concludes by suggesting that the Precautionary Principle offers a much better approach to identifying regulatory targets in estuarine systems where much is scientifically uncertain; and exhorts citizens to spend time educating regulators of these facts rather than in fruitless and time-consuming litigation.

Publication Citation

21 Tul. Envtl. L.J. 1-50 (2007)