Tidal Fisheries Advisory Commission
March 17, 2011
By-Catch and Fisheries Habitat

The Terrapin Institute requests guidance and support from the Tidal Fisheries Advisory Commission in
mitigating fisheries by-catch mortality and shoreline habitat destruction. Most of the following
reference materials relate to diamondback terrapins, but transfer to the broader conservation context,
other species and the industry. Considering the expertise within the TFAC, we felt it would be
unnecessary to present the historical reference, photographs and scientific data as evidence of the
problem. Rather, in order to allow sufficient time for counsel from the Commissioners, our remarks are
limited to a brief overview, a few cases to illustrate our concerns, and some suggestions to inspire feed
back and further consideration. Unless otherwise referenced, the information presented is based on
first hand experience and may not reflect the entire fishing industry in Maryland. Please forgive and
correct any information that may be incomplete or inaccurate. The reports and other documents
referenced herein are available. We hope to leave with a commitment from the TFAC and a motion to
adopt a strategy of resolving by-catch and habitat destruction. We would also appreciate your opinion
on the future of terrapin conservation in the fisheries management context.

By-catch Mortality

The impact of fishing gear on aquatic resources and non-targeted species is undeniable. Unattended
submerged fishing gears such as fyke nets and crab pots are lethal to air-breathing animals. Pound nets
and bank traps are not fully submerged, but hold aquatic species in concentrated conditions for
extended periods. If not tended frequently, animals trapped in these gears feed off each other, die from
heat stress, and succumb to low oxygen levels. According to a 2009 DNR Wildlife and Heritage
Service Progress Report to the U. S. Fish and Wildlife Service1, the primary conservation issue for
terrapins is “bycatch in commercial and recreational fishing gear”. Another report entitled
RECOMMENDATIONS OF THE MD DIAMONDBACK TERRAPIN WORK GROUP TO MD DNR CONCERNING
TERRAPIN BYCATCH FROM COMMERCIAL & RECREATIONAL FISHERIES2 March 2009 describes the
range of by-catch sources and offers methods to mitigate mortality. By-catch mortality is clearly an
obligation of the DNR and within the purview of the Fisheries Service and TFAC.3 Since 2007 DNR
has appointed the Wildlife and Heritage as the lead agency for terrapins, but has assured that both
Fisheries and Wildlife will work together.4 In the last ten years, over $1.5 million in State and Federal
funds5 have been allocated to study terrapins and educate the public about terrapins, yet the primary
conservation issue, i.e. by-catch, has not been addressed.

Crab Pots – The scientific literature is replete with documentation of by-catch mortality caused by
crab pots. Maryland recognized by-catch in crab pots in the 1940s and has partially addressed the
problem by limiting commercial pots to deeper areas of the Bay. Since 1999, crab pots used by
waterfront residents are required to have by-catch reduction devices. These devices are attached to the
entry funnels and may actually improve crab retention, but do not exclude all terrapins. Where
commercial pots are used in shallow waters along the Bay proper and in the sounds, terrapins and other
air-breathing species are vulnerable and no doubt a nuisance to crabbers. When pots become full of
dead terrapins, they literally float away. Enforcement of the by-catch reduction measures and area
limits is challenging, but DNR police citations demonstrate continued monitoring of crab pot use. The
actual fishing pressure from non-commercial crab pots appears to be unknown and therefore difficult
to factor in crab harvest forecasts. In light of unstable blue crab populations and lack of
compliance by waterfront owners, it may be best to prohibit the use of crab pots for non-
commercial purposes and thereby address both by-catch and latent effort in the crab fishery.6
The establishment of “gear free” sanctuaries could also be implemented as a trade off for
additional oyster areas.

Fyke Nets – According to a 1903 New York Times report,7 the fyke net was invented by the terrapin
industry and warned that terrapins drown in fyke nets, particularly in warm months. Earlier industry
reports indicate that fyke nets were used in Eastern, Western and Great Lakes fisheries. Fyke nets
remain a traditional gear used commercially to harvest turtles and finfish and in research to collect
various aquatic species. In research these nets typically include floats to provide air space and are
emptied frequently, but depending on the rate and weight of capture may sink. Fyke nets used for
commercial fisheries in navigable waters rest on the bottom and are set fully submerged, held open
with anchors at both ends and marked with surface buoys. Adding floats to commercial fyke nets
would not resolve by-catch mortality. There are three science-based papers documenting fyke net by-
catch mortality,8 one of which suggests a means by which non-targeted species could be excluded from
entering the net.

Despite the closure of Maryland’s terrapin fishery in 2007, the primary gear once used to harvest
terrapins9 continues to be used to harvest snapping turtles and finfish. Obviously, if fyke nets are set
near terrapin populations when terrapins are active they will trap terrapins. The greater concern may
be a general lack of awareness and understanding of the fyke net fishery by researchers and managers,
which may impede adequate or acceptable management measures.10

There are accounts, typically in the Spring, of hundreds of dead terrapins floating at the surface.11 On
occasion, these animals have washed ashore causing fears of disease or some other ecological hazard.12
Given the timing and the condition of the animals, these fleeting events of mass terrapin die-off are
attributed to drowning and are easily explained.13 Fyke nets can be difficult to reach in winter and
buoys can be lost in ice flow, but harvesters drag to recover the nets. During the colder months,
terrapins and other aquatic species may be capable of surviving in submerged nets. As waters warm
above 42 degrees, terrapins become active and need to breath. If not released in time, they die and
sink. As temperatures increase, dead terrapins decompose and float briefly on the surface. A bloated
carcass expands to the point of breaking the shell leaving only a collection of bone fragments to sink
again. Except for those that wash ashore, there are few witnesses and little verification of the number
of terrapins that drown as by-catch and discards.

An incident in April 2006 provided graphic evidence of the mortality caused in poorly tended fyke nets
and should have inspired further regulations.14 The U.S. Fish and Wildlife Service discovered four
fyke nets floating and crammed with over 200 dead terrapins and snapping turtles. The incident was
reported to the DNR police and in the local paper, but the only citation that could be issued was failure
to properly identify the nets. As reported in the press account,15 this incident was deemed an accident
and failure to monitor or remove the nets was not a violation. It is possible that such unfortunate
accidents occur elsewhere and are not documented. In 2006, terrapins were fair game and apparently
the waste was considered insignificant because the turtles would have been killed anyway once
harvested. However, if a similar situation were discovered today, it is unclear what penalties would be
assigned. Terrapins are listed as a Protected Species in the Fisheries Point System, but there appears to
be no requirement for proper tending of fyke nets and few limits to where or when these nets may be
set.

Laws and regulations governing fyke nets are difficult to interpret, i.e. may not be used to harvest blue
crabs and are restricted in certain yellow perch tributaries. However, DNR harvest data indicates that
fyke nets are used year round and throughout the tidewater. Clearly, this creates a management
dilemma and enforcement problems. Anecdotal information suggests that crab harvesters may be
resorting to fyke nets or fish pots in tidal tributaries as a means to circumvent the crab pot prohibition.
Additional requirements are necessary for these nets to be monitored, properly tended, or removed.
This may be the rationale behind the 2011 House Bill 111 requested by DNR. Any regulations
proposed must consider the full slate of unintended consequence. Apparently, while crab harvesters
are prohibited from harvesting the blue crab by-catch caught in fyke nets, they are allowed to harvest
up to two bushels per day of the blue crab by-catch caught in pound nets. Such an allowance only
shifts the by-catch from one gear to another and creates another unfair advantage to crabbers in areas
where pound nets are prohibited. As soon as possible, DNR must adopt regulations for proper use,
monitoring intervals, and time restrictions of fyke nets. If harvesters cannot check these nets
frequently, then they should not be set.

Bank Traps – Poorly tended bank traps filled with dead or dying animals may be the main reason this
gear is restricted to a few areas. Where they are permitted, bank traps are set close to the shore in
prime terrapin habitat and trap terrapins and other air-breathing animals. If not tended daily,
particularly during periods of high water temperatures, the non-targeted species trapped in bank traps
become exhausted and are eaten alive by the blue crabs, thus creating a self-baiting device.

Pound Nets – Pound nets are indiscriminate, but reasonably innocuous as a means of harvesting when
properly tended. They have been known to capture sea turtles and seabirds and were a primary gear in
harvesting terrapins. In 2003, residents observed an unattended pound net in which over three hundred
terrapins remained trapped during nesting season. Over a three-week period the owner of the net
remained unaccountable while the net continued to capture birds, blue crabs, horseshoe crabs, and fish.
Apparently, there were no laws or regulations in place to allow for emptying or removal of the net.
This type of situation could have escalated in conflicts between the net owner and the adjacent
property owner. Given the potential for conflict, preventive measures should be considered.
Regulations should be adopted that would provide lower escape vents as required in the Potomac
River. Other measures should be considered to allow for unattended nets to be opened by
proper authorities after a 48 hour time period and/or removed after 72 hours.

Power Dredging – Dredging was a traditional means of harvesting terrapins in the winter. The
terrapin drag is similar to an oyster dredge, but without the teeth.16 By 1998, there were only a few
terrapin harvesters that used this method. Through legislative measures, power dredging for oysters
was reinstituted in certain areas and has expanded steadily from 2001 displacing hand tong (75% in
1990) as the primary oyster gear.17 From 2006 to 2010, power dredge permits doubled to over 660 and
the majority (59%) of the oyster harvest was by power dredge, 29% from patent tong, and 4% from
hand tong.

The correlation between expanded power dredging and terrapin, crab, and other by-catch has not been
proven to the satisfaction of authorities. However, in 2003/2004/2005 as the expansion of power
dredging grew, terrapins were readily available on the market during winter months. In January,
terrapins are typically dormant somewhere on the bottom of tidal tributaries and would not be
swimming into nets. It seems reasonable to suggest that once power dredging became widespread,
terrapins and other bottom dwelling species may have become a casualty.18

Now that the terrapin fishery has been closed, there is no incentive for power dredgers to collect the
by-catch. However, it is possible that terrapin hibernation sites continue to be impacted in the process
of power dredging. According to Wildlife regulations 08.03.11.09, adopted in 2010, “B. A person
may not destroy or alter dens, burrows, basking sites, nests, hibernating sites, or other places of
refuge of reptiles and amphibians.” If fully implemented, this regulation could have implications for
both the oyster industry and shoreline property owners. Although a Florida study confirmed that
terrapins utilize oyster beds19, the extent to which terrapins in Maryland hibernate near oyster beds is
unknown. The recently expanded oyster sanctuaries may provide additional protection for terrapins.
At the very least, efforts to enhance oyster populations, such as bar-cleaning and aquaculture
should consider the larger ecosystem of submerged lands. The re-suspension of sediments may
have consequences for other aquatic organisms and water quality. Shell materials from other
shellfish, i.e. clams, provide a vital source of hard structure and calcium and may be an
alternative component in restoring oyster substrate and maintaining shorelines.

Shoreline Habitat Destruction

Land development and habitat destruction is cited as the primary cause for the degradation of our
fisheries resources and demise of the commercial fishing industry. The 2009 DNR Progress Report to
the U.S. Fish and Wildlife Service states that “habitat loss, degradation, and fragmentation by
shoreline development activities” is the second most crucial conservation issue for diamondback
terrapins. Property rights being what they are, the extent to which the TFAC can address growth and
land development is inherently limited. However, given the State’s heightened commitment to
preserve its fishing heritage, we believe the TFAC would have significant influence in limiting
encroachment into the public domain and displacement of essential fish habitat in the Chesapeake Bay
and tidewater tributaries.

Almost every permit issued to control shoreline erosion on private land requires a forfeiture of the
public domain and fishable area.20 Waterfront property owners are eligible to encroach up to 35 feet
channel-ward. More extensive encroachments are considered by management authorities and typically
referred to the Board of Public Works for further review. With each encroachment into the channel,
the public and those who once harvested these areas are pushed further off shore.

In the attached photographs from 200521, the property owner was permitted to encroach 270 feet into
the channel and by de facto adverse possession acquired additional waterfront property. As an
immediate consequence, the navigation channel is reduced and fisheries habitat is eliminated. The
stone required to encompass the area precludes public access, displaces shallow water habitat, and
presents a by-catch hazard in the voids between the stone. The secondary consequences are less
obvious and may not appear for several years later. One possibility is that the shoreline silts that once
maintained the beaches across the embayment are no longer available and the relative stability or
equilibrium of this subsystem is forever changed.

In another example, not yet approved, neighboring property owners have presented compelling
evidence that the property is not eroding and does not require the degree of protection proposed by the
new owner. Up until 2008, there were virtually no fees assigned to property owners for encroachments
into the public domain. Delegate Ron George reintroduced the Wetlands Fee Bill, which was adopted
and has since contributed several million dollars to the State. Unfortunately, fees are not assessed for
all encroachments, such as those designed as “living shorelines”. As a means to protect against
continued encroachment and adverse possession of the public domain, the TFAC could respond
to such proposals on a case-by-case basis and/or seek remedy through the legislature to limit
such encroachments.



1 Progress report 2009
2 Draft By-Catch Report March 2009
3 Title 4, Fish and Fisheries, 4-903 and website information on ecosystem based fishery management
4 Letters from John Griffin and Kristin Saunders 2010
5 Partial accounting of federal and state funds from USACE, USGS, DNR
6 Recommendation of the Terrapin Workgroup and suggestion to Fisheries Service
7 Copy of NYT article
8 Reports on Fyke Net By-Catch
9 DNR commissioned report 1987 - 1990
10 Recommendations from researchers, DNR 2009 by-catch report
11 from a terrapin harvester, 1998
12 recovered terrapins 1999 - 2001
13 according to commercial fishery participants in Eastern Bay
14 USFWS photographs
15 article from Star Democrat, 2006
16 Photo of terrapin drag
17 DNR report % of Oyster Harvest by Gear Type
18 photos of harvested terrapins, 2004/2005
19 Florida Study
20 Mind Over Matter, 2002
21 Shoreline shuffle
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