The National Park Service today released to the public the final off-road vehicle rule for the Cape Hatteras National Seashore.
The rule will be published Monday, Jan. 23, in the Federal Register and will become effective on Wednesday, Feb. 15.
The long-awaited, much anticipated, and hotly debated final ORV rule had no surprises or significant changes from the proposed regulation, released for public comment last July.
The final rule established permits for ORV use on the beaches, but it doesn’t address – and wasn’t expected to include – the information that the public is anxiously waiting for – the cost of the annual or weekly permits.
In a release from the seashore, officials said that they would release more information on obtaining the permit – presumably including the cost – before Feb. 15.
The Park Service says it received more than 21,000 public comments, but made only a few changes. A table of the changes takes up only one page in the 82 pages of material released today.
“It is definitely a disappointment,” said David Scarborough, a member of the board of directors of the Outer Banks Preservation Association, which has advocated for free and open access to the seashore’s beaches. “I can’t see that there were many changes.”
“It is what it is” was the attitude of many advocates for more reasonable ORV access, who have opposed most of the Park Service’s plan for ORV management.
On the other hand, the environmental groups that sued the Park Service in 2007 over its lack of ORV regulation on the seashore issued a media release praising the regulations and declaring victory in the effort to protect “baby” birds and sea turtles on the seashore.
“The Park Service’s rules are a compromise that provides protections for both pedestrians and wildlife while still allowing responsible beach driving,” said Julie Youngman, senior attorney, Southern Environmental Law Center. SELC represented Defenders of Wildlife and the National Audubon Society, the groups that brought the lawsuit.
“With both the number of hatchlings and visitors to the beach climbing, the success of responsible beach management is clear,” said Jason Rylander, senior attorney for Defenders of Wildlife. “The new rules will ensure that Cape Hatteras continues to provide enjoyment to beach users while protecting the unique wildlife that call the seashore home.”
More than 50 pages of the document released today are devoted to comments on the proposed rule and Park Service response to the comments.
One page is a table of the changes the Park Service made in the proposed rules after receiving the comments. You can find that table on Page 58 of the document.
A few changes are worth noting.
First, officials have removed the phrase “in person” from the language on obtaining a permit. Currently, the plan calls for ORV users to apply in person for the permit and to watch a seven-minute video on beach driving. Many expect the crush of visitors on summer weekends showing up at trailers at just three locations on the seashore to get their permits will be a disaster and will discourage visitation.
Removing the “in person” language opens to door to selling permits on the Internet at some point or at least to not having to renew in person every year.
Second, the changes allow transporting a mobility-impaired person to the beach in an ORV and allowing the ORV to remain on the beach while the person is there. In the proposed rules, the ORV could drop a person off but would then have to leave the beach. Many thought this was a safety issue.
Special use permits will be available to transport mobility impaired persons in only one area where the beach is closed to vehicles during the summer – in front of the villages. Mobility impaired people cannot be transported to beaches that are vehicle-free.
The rules for night driving were clarified to include language that portions of those beaches that are designated ORV routes may be opened for night driving from Sept. 15-Nov. 15 if no turtle nests remain in the area.
One change that access advocates had hoped for did not happen.
The superintendent has latitude to use adaptive management of resource closures, which is good and access advocates want. That means that he or she could change such things as buffer distances in the future if the situation on the ground or the science changes.
Many hoped for adaptive management of designated ORV routes – giving the superintendent latitude to change the routes if conditions on the beach or usage of the beach changed.
In its response to comments, the Park Service said any change in designated routes will require additional environmental impact statements and a new proposed and final rule.
In its responses, the Park Service basically wrote off comments that the science behind resource management, such as buffer distances for nests, and the economic study are flawed. Once again, officials defended both.
Public comments on the rule and comments in this and other media have concerned the perception that the Park Service’s preferred alternative in the Final Environmental Impact Statement, Alternative F, was biased toward environmental concerns, rather than recreation.
In fact, many residents and visitors feel the Park Service has failed in its mission to provide recreation and public access to the Cape Hatteras National Seashore Recreational Area, the name give the seashore by Congress in 1950. It was never changed by Congress, but the “Recreational” phrase was just eliminated over time by the Park Service.
Here is the response to these comments:
“As stated in NPS Management Policies 2006, Section 1.4.3, Congress recognizes that the enjoyment by future generations of the national parks can be ensured only if the superb quality of park resources and values is left unimpaired. Congress has therefore provided that when there is a conflict between conserving resources and values and providing for enjoyment of them, conservation is to predominate. This is how courts have consistently interpreted the Organic Act.”
Beginning on Page 59, the Park Service explains some of the principal elements of the rule in a question-and-answer format. There are answers to many frequently asked questions in here, but nothing we haven’t known before.
The actual regulation begins on Page 73 and is fairly brief.
The chart of designated ORV routes is on Pages 77-78.
There are a few things to note here:
- It is true, as the environmental groups note in their press release and have emphasized before, that 28 miles of the seashore’s 67 or so miles are set aside for ORV routes, “only” 26 miles are set aside as “vehicle-free” areas, and 13 miles are seasonally open to ORVs. However, remember that many of the 28 miles of designated ORV routes will be closed to vehicles – and pedestrians – during nesting season, which is basically from March through August.
- If you want to come to the seashore, get a permit, and drive to the beach in your ORV during the nesting season, you will be able to get to the beach, but not necessarily the area of the beach you want to get to. That may be closed for nesting birds and turtles.
- And we note again that while environmental groups are very pleased to have these vehicle-free areas set aside for pedestrians only, even pedestrians can expect to be prohibited in many areas during nesting season.
- Night driving will be prohibited from May 1-Sept. 14 during the hours of 9 p.m. and 7 a.m. Under the consent decree, driving is prohibited from 10 p.m. until 6 a.m.
- Vehicles can park on the beach in the ORV areas in single file – not double parking or “circling the wagons” for a wind block.
- There will be no limit on the number of permits sold, but there will be a carrying capacity on the beach. The maximum number of vehicles allowed on any ORV route at one time is the length of the route – or portion of the route that is open divided by 6 meters, which is 20 feet. This is the equivalent of 260 vehicles per mile.
- The ORV permit goes with the vehicle, not the driver. So if you have more than one vehicle you drive to the beach, you will need a permit for each one.
In a little less than a month, island residents and visitors will see a major change in the way we have traditionally and historically used our beaches.
It’s now a final plan with little hope of changing or amending it.
FOR MORE INFORMATION
To read the entire final rule document released today, click here.
To read a previous blog on ORV permits, “Come the new year, we will pay to drive on the beach," click here.
To read more about the November, 2010, Final Environmental Impact Statement, click here. The EIS will largely provide the framework for the plan and access to the beaches.
To read more about the draft ORV regulation, published last summer, click here.