Lawmakers weigh new call for law to ban harvest of female horseshoe crabs
Earlier this week, the Delaware Department of Natural Resources and Environmental Control closed The Point at Cape Henlopen State Park for most of the spring and summer. It’s a move DNREC makes annually to help threatened and endangered beach nesters and migratory shorebirds that stop there, such as red knots and piping plovers, among others.
Conservationists are calling on Delaware state lawmakers to write a bill that would ban any future harvest of female horseshoe crabs in state waters, in the latest effort to preserve a crucial food source for the red knot, an imperiled shorebird that visits Delaware Bay beaches on migration each spring.
Delaware Audubon and Delaware Nature Society wrote to every legislator this week, urging them to support any bill that provides an extra level of protection for the long-distance migrants whose local population is threatened with extinction because of an earlier over-harvest of horseshoe crabs for bait.
The harvest of female crabs has been banned since 2013 throughout Delaware Bay by the Atlantic States Marine Fisheries Commission, a regional regulator, but the proposed bill would prevent female crabs from being caught in Delaware waters if the commission ever lifts its moratorium – as the campaigners fear it will.
They argued that a legal ban would help to protect the red knot, which depends on eating horseshoe crab eggs to complete a long-distance migration from South America to breeding grounds in Arctic Canada via Delaware Bay beaches such as Mispillion Harbor in Sussex County in a brief stopover each May.
And they said passage of the proposed law would not change conditions for the fishing industry, which is already not permitted to harvest females in the Bay, according to a quota system imposed by the commission.
Advocates are seeking a state ban on harvesting the crabs for bait or for the biomedical industry, which bleeds them for a substance that is used in detecting toxins in medical products.
They said a new state law is needed also because advocates doubt the Department of Natural Resources and Environmental Control will use its authority to take executive action on the issue.
“Executive action is not an option,“ said Delaware Audubon president Steve Cottrell. “The proposal for the legislation was carefully worded to blunt any objection from DNREC. I predict DNREC will still oppose it.“
DNREC spokesman Michael Globetti said the agency has the authority to ban the female crab harvest, if warranted, but has no plans to do so because the commission’s ban is already in place.
“The ASMFC has prohibited harvest of female horseshoe crabs of Delaware Bay origin for 2023 in Delaware and surrounding states,“ Globetti said.
The conservation groups wrote to every lawmaker after being rebuffed by State Sen. Stephanie Hansen (D-Middletown), chair of the Environment and Energy Committee, who said she would not sponsor a bill because the regulator’s ban is already in place.
“The ASMFC has already addressed this issue with their decision not to allow the harvest of female horseshoe crabs,“ said State Sen. Hansen’s spokeswoman, Sarah Fulton.
Advocates hoped Hansen would champion their cause given her efforts last year to persuade the commission to drop a plan to allow the female harvest to restart for the first time in 10 years. Last November, the regulator unexpectedly decided not to resume a female harvest in Delaware Bay, at least for the 2023 season, easing fears among the conservation community that it would approve the proposal.
“Senator Hansen was given the courtesy of having the first opportunity to act on it. Since she is passing on it, other lawmakers are now fair game,“ said Cottrell. “Other options could turn out to be more productive.“
Early responses came from Sen. Eric Buckson (R-Dover), who said he planned to talk with people who harvest horseshoe crabs, and Sen. Kyra Hoffner (D-Smyrna) who promised to look into the matter. “Let me do a little more research and see what our state can do to save our state’s official marine animal, “ she wrote in a note to Cottrell.
Naturalists say the bay’s population of horseshoe crabs has not recovered to the level where it could rebuild the red knot, whose numbers crashed after an over-harvest of horseshoe crabs in the late 1990s and early 2000s.
According to an annual count, the number of red knots visiting the bay dropped to a record-low 6,880 in 2021, well below the level that biologists say would sustain the population. The tally edged up to about 12,000 in 2022 but remained sharply lower than the approximately 90,000 that crowded the bay beaches in the 1980s and early 90s, drawing scientists and birders from around the world to a renowned natural spectacle.
The density of crab eggs on bay beaches – a crucial indicator of the crab population – is only about a fifth of what it was before the over-harvest of horseshoe crabs, according to Larry Niles, an independent wildlife biologist who has monitored the red knot migration from the New Jersey side of the bay for 26 years.
The new push to protect the birds comes as a pharmaceutical industry science group renews its research on whether to approve use of rFC, a manmade substance that, if widely adopted by the industry, would reduce industry demand for LAL, a product based on horseshoe crab blood.
The industry took about 719,000 crabs for bleeding from mid-Atlantic waters in 2021, a 3 percent increase from 2020, according to a commission report last year. Some 112,000 died, either before or after bleeding, when they are returned to the ocean. Naturalists say as many as 30 percent die, and others may be unable to breed after being bled.
Continued reliance on the crab population not only risks the survival of the red knot and other shorebirds, but raises concerns about whether the industry has a stable supply of LAL to test for toxins in its products for humans, the advocates say.
“The issue is that a precarious horseshoe crab population has negative health implications for all Americans,“ the conservationists’ letter said.
Any decision to approve the use of rFC instead of the crab-based LAL would be taken by U.S. Pharmacopeia (USP), a nonprofit scientific organization that sets legally accepted professional standards for the industry.
That organization in mid-February held the first meeting of a newly formed committee charged with investigating alternatives to LAL. “The Expert Committee is tasked with weighing the available evidence in light of its potential use across all products for which endotoxin testing is required by law,“ its chief science officer, Jaap Venema, said in a statement.
Although rFC does not yet appear in an online platform of standards run by USP, the platform does allow for the use of alternative test methods. “This provides a pathway for manufacturers to use rFC today,“ Venema said. He said it was too early to say when the new committee might reach a conclusion.
Asked why USP has not yet endorsed the synthetic product, while its counterparts in Europe and Japan have already done so, Venema said that even in those regions, regulators must approve rFC in specific cases after seeing data on its suitability for use. In the United States, the Food and Drug Administration has approved the use of rFC in a “small number“ of products, he said.
The FDA confirmed that it is open to approving the synthetic product.
“We recognize that it may be appropriate to use equivalent methods that use one or more recombinant versions of the enzyme (recombinant Factor C), and do not rely on the blood of horseshoe crabs and therefore represent a synthetic substitute to using horseshoe crab blood for bacterial endotoxin testing purposes, “ the agency said in a statement. “The recombinant factor tests must be qualified for use, just as any other reagent used in critical tests for drug product testing and product release is qualified.“
In another new effort to protect the red knot, biodiversity advocates threatened to sue a White House office, claiming it is delaying approval of a plan by the U.S. Fish & Wildlife Service to designate some 650,000 acres of critical habitat areas for the red knot around the U.S. coast, including eight in Delaware.
The Center for Biological Diversity, a nonprofit that seeks to protect endangered species through legal action, filed a Notice of Intent to Sue against the White House Office of Information and Regulatory Affairs, accusing it of taking too long to evaluate a plan by the U.S. Fish & Wildlife Service to establish critical habitat areas to protect the red knot. The FWS listed the bird as a threatened species in 2014.
“It’s tragic that vital protections for red knots have been needlessly delayed by the White House as this species continues to spiral towards extinction,” said Brett Hartl, government affairs director at the nonprofit. “It’s utterly baffling that the Biden administration has such an ax to grind against these beautiful little birds.“
The suit, if filed, would accuse the office of violating a section of the Endangered Species Act, and unlawfully delaying protections for endangered and threatened species, including the red knot.
Hartl said the office is now in its eighth month of reviewing the FWS plan to designate the critical habitat areas — where any federal plans such as renourishing beaches or rebuilding after a hurricane would have to be done without damaging the habitat. But the designation would not affect any private development on private land unless it required a federal permit.
After listing a species endangered or threatened under the Endangered Species Act, the FWS is required to identify areas of critical habitat for that species. In Delaware, critical habitat for the red knot includes 549 acres at Prime Hook; 590 acres at Slaughter Beach, and 1,298 acres at Rawley Island Roost.
Hartl said the office – a unit of Office of Management and Budget – has the power to simply reject the FWS plans, and is already well past the 90-day deadline for reviewing a critical habitat proposal.
“Something unusual is happening here because this delay is very much out of the blue,“ he said. “They can do whatever they want because they are at a very high level of government in a space of almost no accountability. We took this step because it started to become clear to us that something is going on here that is unusual and wrong.“
The Office of Management and Budget did not respond to a request for comment.
But another delay seemed likely after the FWS said it is revising its critical habitat plan in light of public comment on the original version, which was published in July 2021.
“In response to new information we received during the public comment period for the proposed rule, we plan to publish a revised proposed critical habitat designation and reopen the public comment period,“ said FWS spokeswoman Bridget Macdonald.
She declined to disclose the contents of the revision or say when it might be published.
Hartl said he had not known of the revision before being informed by a reporter.
“The USFWS should have finalized the designation, and if it needed to alter it, should do so through a later regulatory process. Allowing the White House to hold it hostage for eight months and then send it back to USFWS is plainly illegal, “ he said.