Beach Access and Park Issues
December 17, 2010

Murray says Record of Decision on FEIS will be on signed Dec. 20


The Record of Decision (ROD) on the National Park Service’s Final Environmental Impact Statement on Off-Road Vehicle Management at the Cape Hatteras National Seashore is scheduled the be signed on Monday, Dec. 20, Mike Murray said yesterday in a meeting with local reporters.

The Notice of Availability of the ROD will be published in the Federal Register on either Dec. 23 or Dec. 27, he said.

Murray said the ROD will summarize the alternatives that were considered for regulating beach access and the Park Service’s decision.

At this point, the Preferred Alternative F will become the Selected Alternative.

Murray also confirmed that the Park Service was behind schedule on the next step in the process, which is publishing a draft ORV regulation.

A final rule on ORVs on the seashore was to be finished by April 1 of next year under a federal court-sanctioned consent decree that settled a lawsuit against the Park Service.

The National Audubon Society and Defenders of Wildlife, represented by the Southern Environmental Law Center, sued the Park Service in October, 2007.  The suit claimed that the park’s Interim Species Management Plan did not go far enough to protect nesting birds and turtles at the Cape Hatteras National Seashore.

Eventually Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance were allowed to join the lawsuit as defendant-intervenors on the side of the Park Service.

The groups reached an agreement in the spring of 2008 to manage the seashore until the Park Service had a final rule on off-road vehicle use.

U.S. District Court Judge Terrence Boyle signed off on the consent decree on April 30, 2008, and its much more restrictive beach closings began to be implemented over the next few days. During the past three summers, the increased protections for birds and turtles have caused more areas of the beach to be closed during the spring and summer nesting season – including the most popular areas with locals and visitors, such as Cape Point.

“We need the ROD (to be) signed to finish the draft regulation,” Murray said on Thursday.

The draft regulation, he said, should be completed shortly after the first of the year and will be subject to internal review in the U.S. Department of the Interior and in the Office of Management and Budget (OMB) before it is made public.

The draft ORV regulation will address routes and areas for ORVs, which has been required under Executive Orders from both Presidents Nixon and Carter that were issued in the 1970s but that the Park Service never completed at Cape Hatteras.

It will also outline other enforceable regulations such as speed limits for ORVs or hours that ORVs are allowed to operate on the beach.

There will not be alternatives in the draft regulation but there will be a “preamble” discussing how the Park Service has arrived at the ORV rules. The draft regulation, he said, will not involve hundreds of pages like the Draft and Final Environmental Impact Statements.  The regulation will be “self-contained” and published in its entirety in the Federal Register.

Murray said that OMB is allowed six to eight weeks for its review, so it’s possible that the draft regulation will not be available until February or March.

When it is published in the Federal Register, the regulation will be open for public comment for 60 days.

After the public comment period closes, the Park Service must review, analyze, and respond to comments as it did with the Draft Environmental Impact Statement.

Next, a final rule is written and is again subject to internal review in the Department of the Interior and OMB.

After it is published, there is another 30-day wait before it is final.

Murray says he expects the final rule “sometime in the summer,” though the Park Service will be pushing to make even that deadline with all of its internal reviews, public comment periods, and other waiting periods.

Meanwhile, it is assumed after a status conference earlier this month before Judge Boyle, that the seashore will continue to operate under the consent decree again this summer and until there is a final rule.

“It would be best for everyone, including the park and park visitors, to implement (the regulation) in the fall,” Murray said. 

“In some ways, I am relieved,” he added. “We’re really hustling to get ready but we still have a lot to do.”

By fall, he said, the park will have a better chance of being prepared.

The park staff is working on a host of issues that must be ready when the final rule is implemented.

Not the least of these is a permit for driving on the beach. But there is a long list behind that, including new signs and other public information on the rule and such things as new ramps and parking areas that are part of the FEIS.

Murray said that seashore staffers are working on “what we need to do to make sure the plan works and to make sure it works well.”

The staff, he said, is working on infrastructure improvement costs for the ORV plan.

“The director and assistant director (of the National Park Service) are aware,” Murray said, “that we will need one-time start up costs.”

He said that “it seems” that the seashore has have support from Washington and the Southeast Regional headquarters in Atlanta, Ga., for the funds.

“We designed the plan so we don’t need additional base funding,” Murray said, adding that the park got a “good increase” after the consent decree was implemented in 2008.

Murray said he thinks it is realistic that the park can add the new infrastructure required over one to two years.

Over the winter, he said, the park will map locations for new ramps and parking areas.

The parking areas, he said, will be surfaced with some kind of pervious material that will prevent added stormwater runoff.

The park will need to develop an environmental assessment (EA) on the new ramps and parking areas, but he hopes that one assessment can cover all of them.

“It’s truly an irony to us,” said Cyndy Holda, public affairs specialist for the park, that if an ORV plan had been implemented when it was first required in the late 1970s, an environmental assessment on the new parking areas and ramps would not have been needed.

Murray said he thinks the park did well to get the FEIS and Record of Decision finished by the deadline that was laid out at the first of the negotiated rulemaking committee meetings in January 2008.  That timetable, he said, was the basis for the timetable for a final rule in the consent decree.

He said he hopes that in a few months, the Park Service will have a better grasp on a date that the final ORV plan will be implemented, but he expects it will be after September.

Until then, the seashore will continue to be managed under the consent decree – unless one of the parties to the decree objects.

Murray added that the Park Service’s annual reports on threatened and endangered species that are required under the consent decree are due by Jan. 31, and he expects that Boyle will have another status hearing after he and the other parties get those reports.

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