Advocates of more reasonable beach access at Cape Hatteras National Seashore are anxiously waiting for the National Park Service?s proposed rule for off-road vehicles at the seashore.
They are probably going to have to wait a while longer.
The Park Service released its 2010 annual reports this week, as it is required to do under the 2008 consent decree that settled a lawsuit against the seashore by environmental groups.
The reports cover protected species of birds and sea turtles at the seashore and also provide an update on the park?s off-road vehicle management plan.
In the reports, the park again said that it would not be able to meet the April 1 deadline for a final rule. The U.S. attorney for the Park Service made this clear in a status hearing on the consent decree in the courtroom of federal Judge Terrence Boyle in December. Also, Superintendent Mike Murray followed up on the delay in a meeting with reporters in mid-December.
The progress report says that the proposed rule was submitted to the NPS Regulations Office in Washington on Jan. 26 to begin the formal review by NPS, the Department of the Interior, and the Office of Management and Budget.
As soon as the review is completed, the report says, the proposed rule will be published in the Federal Register, which will begin a 60-day public comment period.
The problem for all who are anxious to see exactly what is in the proposed rule is that the review could take months.
In an e-mail earlier this week, Murray elaborated on the review schedule.
?Typically, the NPS and DOI review process requires at least a few weeks. OMB then has up to 90 days to complete its review, but can request a 30-day extension.?
Murray said that because of the ?uncertainty about the OMB review time,? the Park Service can?t estimate when the proposed rule will be published and made available for public comment.
The Park Service says in its annual report, that ?it is not likely to complete a final rule until summer 2011 with plan implementation beginning in fall 2011.?
Once again, it would seem that park officials are painting an overly optimistic picture of how long the process of getting to a final rule will really take.
A final rule by summer seems out of the question.
When the proposed regulation is published ? which could be months from now, depending on OMB ? there will be 60 days of public comment.
And the park service says in its annual report that analysis of the public comment could take ?several months? to complete.
Only then will the Park Service prepare the final rule for internal review, followed by publication in the Federal Register.
You can do the math, and figure how likely it is that this timetable will result in a final rule by summer.
Meanwhile, we will watch and wait and wonder what exactly will make it way into that final rule.
The final rule is needed to implement regulations that are spelled out in its Final Environmental Impact Statement and Record of Decision, which was issued on Dec. 20.
Theoretically, such issues as ORV routes and areas, nest buffers, and night driving will not be revisited but will reflect what is already in the Record of Decision.
Advocates for more reasonable beach access are leaving few stones unturned as they decide how to respond to what was mostly disappointing news in the Park Service?s selected alternative for the ORV rule.
The selected alternative makes even the consent decree look good to some of its most vocal critics.
And they are casting about for a means to soften the blow of the selected alternative to the economy and culture of Hatteras and Ocracoke.
A delegation from Dare County visited the Washington, D.C., offices of U.S. Sen. Kay Hagan, a Democrat, Sen. Richard Burr, a Republican, and Republican Rep. Walter Jones in December.
?We asked if they could pursue these issues legislatively,? Warren Judge, chairman of the Dare County Board of Commissioners, said this week.
Earlier this week, the three North Carolina lawmakers wrote a letter to Secretary of the Department of the Interior Ken Salazar and OMB Director Jacob Lew asking that the proposed off-road vehicle management plan for Cape Hatteras National Seashore provide maximum public beach access.
In the letter, the lawmakers say that they are concerned the Park Service preferred alternative for ORV management does not reflect the input of local residents and businesses.
They warn that ?an overly restrictive ORV management plan will further imperil the economic vitality of Dare County families and businesses already struggling under the current management practices.?
Judge says the lawmakers? staff members asked that if the county could choose one thing to change, what would it be.
The answer was accommodating ORV access to areas of the beach that are open to vehicles but blocked by large buffers around bird nests. Beach access advocates want to see ORV and pedestrian ?corridors? through the resource areas.
This is a common problem each summer at Cape Point and other points and spits. Cape Point may not be closed to vehicles or pedestrians, but access from the north and south/southwest is blocked by bird nests.
Some folks get around this by wading below the low tide line to Cape Point or getting there by boat, but this can be a dangerous practice in rough waters.
?We are just hopeful that common sense will prevail,? Judge said. ?Common sense has just got to say that you?ve got to get people to areas of the beach that are open.
The lawmakers asked Salazar and Lew to consider the idea of corridors in the proposed ORV rule, which is now under review by both DOI and OMB.
County manager and attorney Bobby Outten said that the county is exploring all options, ?if there are any.?
?If we?re stuck with it (the selected alternative), how can we make it more palatable?? he asked.
Privately, beach access advocates are not encouraged that there is a legislative solution to the problems with the selected alternative and eventual ORV rule.
Nor are they encouraged that there is a practical legal alternative.
Filing a lawsuit against the Park Service would be expensive and would probably address problems in the process of rulemaking and not the rule.
This wouldn?t help in the long run, as we saw with the issue of critical habitat for piping plovers.
When the Cape Hatteras Access Preservation Alliance challenged the U.S. Fish and Wildlife Service?s plan for critical habitat in court, it won its case but the judge instructed the service to go back and fix the process. It did and USFWS finally won on appeal.
John Couch, president of the Outer Banks Preservation Association, says access advocates will be meeting with attorneys next week to explore options.
Every option is still on the table, he said.
Whether the DOI secretary or the OMB director would step in at this point ? or even whether they can step in ? is certainly unclear.
However, advocates for more reasonable beach access make it clear that they aren?t ready to give up yet.
