The NY/NJ Baykeeper is urging the New Jersey Department of Environmental Protection (DEP) to reconsider a ban that would end its successful oyster restoration project in the Raritan Bay.

The DEP banned research-related gardening of commercial shellfish in contaminated coastal and inner harbor waters on June 7.

The Baykeeper, which works to protect the Hudson-Raritan Estuary, launched the Keyport Harbor Oyster Reef Project in September 2009, a program that aimed to gradually restore the oyster habitat to the urban estuary. The group is appealing to the state Office of Administrative Law and requesting that the DEP overturn the order.

“We do not design our projects so they will go to market; however, they are concerned that people will illegally take them off our projects,” said Christine M. Lynn, oyster program assistant at the NY/NJ Baykeeper.

The oyster-gardening program placed seed oysters in the bay to serve as natural filter feeders to improve water quality. The oysters are used for restoration purposes only and not for consumption.

“The problem with that is people eat oysters raw, and these water bodies are contaminated with bacteria. Because of their [the DEP’s] lack of ability to patrol adequately, they say there is no way and it is too dangerous to do this work.”

The DEP is concerned that oysters used for ecological restoration could be poached and sold to consumers, which could create a public health problem.

According to DEP spokesman Lawrence Ragonese, the department does not have the resources to patrol the areas where shellfish are placed by “gardeners,” which is a growing concern of the U.S. Food and Drug Administration (FDA).

“The federal FDA has basically put us on notice that we are in violation of the rules and regulations of patrolling our waters,” Ragonese said in an interview. “We have an obligation to ensure that we follow these rules so we don’t endanger livelihoods of the people in this industry. It is a $790 million industry in New Jersey, and it counts for many jobs and many families depend on it. It is crucial we do not jeopardize that.”

Last year, the NY/NJ Baykeeper partnered with Rutgers University, the Raritan Riverkeeper and the Hackensack Riverkeeper to create a living Raritan Bay oyster reef constructed of rebar, a type of steel fashioned into a vertical structure that would allow oysters to bond and attract different organisms to spawn.

The seed oysters were placed in mesh bags where they feed, harden and grow. To minimize the chance of poaching, the Baykeeper has redesigned the projects and structures to lower the risk of theft.

“Our reef project, which we installed in September, those structures are a metal frame and made with plastic mesh bags,” Lynn said. “They are closed up with zip ties and they are heavy. A person could not go out there and take one of them out of the water without being noticed. We just started our monitoring this week, and it’s proven difficult even for us to remove our sample bags. Those of us who designed the structures and know what to do to get the oysters out are having a hard time doing it. A person who came upon this and didn’t even know what it was would probably not even know what to do.”

Lynn added that the state must monitor these types of projects, especially in contaminated waters.

“They have 10 enforcement officers for the entire state, and they need to patrol the water bodies at a certain frequency based on the density of shellfish and the water quality,” Lynn said. “The dirtier the water and the higher amount of shellfish, they need to patrol the water bodies more frequently. The problem is that they do not have the capacity to patrol enough, where up here we have dirty water and want to restore oysters.”

Conversely, Ragonese explained the department wants to ensure compliance with the FDA regulations or the state can incur tough consequences. Given the state’s multibillion-dollar budget gap, the department does not have the funding to patrol every area, and the FDA does not allow volunteers to monitor estuaries, he said.

“Commissioner [Bob] Martin has supplemented that budget and has found ways of how to increase the patrols at least to cover the commercial operations, but we just don’t have the personnel and the equipment to be able to patrol everywhere,” Ragonese said.

“The Baykeeper has offered to voluntarily do some of this work, but the FDA doesn’t allow that. They have to have qualified conservation officers and biologists, and they must have specific qualifications in order to do that. Even though [Baykeeper volunteers] are well intentioned, and I’m sure they do a vigilant job of it, the FDA will not allow volunteers to go out there and patrol.”

Under the ban, the DEP is hoping to minimize poaching in contaminated New York/New Jersey harbor areas, such as the Raritan Bay, Newark Bay and Arthur Kill.

“We are not fighting with the Baykeeper,” Ragonese said. “We value their work and we are really intending to work with them in the future. We believe in the future there will be research and there will be student groups, but for the short term, it is crucial we take some action.”

According to statistics from the DEP, the department makes 60 arrests annually of illegal harvesters or poachers in local waters. However, the NY/NJ Baykeeper is continuing to negotiate with the DEP to allow its oyster project to continue.

“It is our plan to try to come to some type of comprise so we can still do this work,” Lynn said. “We feel at this time, especially in light of the contamination issues not only in our estuary but in other estuaries around the world, including the Gulf of Mexico, it is critically important to continue researching and learning how to restore this important species in an estuary, especially a contaminated estuary.”

As an alternative to oyster restoration, Ragonese explained that the DEP would encourage the Baykeeper to use non-commercial species for their projects, such as mussels, to stimulate the Raritan estuary. The mussels would not be used for consumption, he said.

“What we are trying to do is we intend to work with them [NY/NJ Baykeeper] in the future,” he said. “We intend to help them find other places to work and use other species other than oysters that could be used in these waters, because their goals and their efforts are good.”

Shortly before the state ban on shellfish harvesting, the Baykeeper was awarded $50,000 for oyster restoration by the National Fish and Wildlife Foundation in May.

In a letter from Baykeeper Executive Director Debbie Mans, the organization offered to work with the DEP to improve security in the New York/New Jersey harbor area and proposed solutions to public health risks by caging the oysters.

“DEP has never seriously entertained these offers and now stands poised to decimate our oyster program even though it is the most cost-effective method for environmental improvement currently on the table,” Mans wrote. “We had hoped that Commissioner Martin would be willing to consider small business solutions for environmental problems, but now we know he just doesn’t get it.”