Earlier this week a federal judge in Washington, D.C., upheld the U.S. Fish and Wildlife Service?s designation of four areas in the Cape Hatteras National Seashore as critical habitat for wintering piping plovers.
The ruling came in a lawsuit filed by the Cape Hatteras Preservation Alliance (CHAPA) against the Fish Wildlife Service?s second attempt at critical habitat designation at the seashore.
The first attempt also resulted in a lawsuit by CHAPA, but the access advocacy group won that one, and the court told Fish and Wildlife to clean up its act on the critical habitat designation.
This time, the Fish and Wildlife Service came out ahead ? along with the defendant-intervenors in the court action. And you know them well ? Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center.
Even though seashore officials have said in the past and still say that the critical habitat designation will have little effect on management of seashore beaches, don?t believe it.
The critical habitat designation will affect public access to our beaches, and it will affect the replacement of the aging Bonner Bridge over Oregon Inlet.
As Jason Rylander, attorney for Defenders of Wildlife, stated so aptly in a media release after the judge?s ruling, critical habitat adds ?another layer of protection? for the piping plovers, which are federally listed as threatened species.
The piping plovers on Cape Hatteras National Seashore hardly need another layer of protection. They are already very well protected under the terms of a federal court-sanctioned consent decree that were signed off on in 2008 to settle a lawsuit by the already mentioned environmental groups over the Park Service?s lack of an off-road vehicle plan.
Interestingly, seashore superintendent Mike Murray opposed the critical habitat designation in the seashore in a 2007 letter of comment to the U.S. Fish and Wildlife Service.
In essence, Murray said that the birds in the four ?units? in the park that were included in the critical habitat designation were already well protected and managed under the park?s interim ORV plan and that their continued protection would be addressed in long-range ORV rulemaking.
The interim plan was replaced the year after it was implemented ? 2007 ? and replaced with the consent decree on April 30, 2008.
In an e-mail yesterday, Murray said his letter, dated July, 2007, was written in response to the Fish and Wildlife Service?s 2007 proposed rule on critical habitat. The proposed rule excluded Pea Island National Wildlife Refuge from the designation.
?My primary question at the time was why would the seashore’s interim strategy not be considered in a similar way?? Murray wrote.
However, in the final rule on critical habitat, Pea Island was included.
?As a result,? Murray said, ?it is my impression today that the critical habitat areas within the seashore are likewise not excludable solely on the basis of having a management plan in place.?
Murray?s reason to exclude the seashore, well argued in his 2007 letter, was also much of the basis of the attempt by CHAPA to get the seashore ?units? excluded.
Obviously, the judge did not agree.
And, thus Pea Island and the four seashore ?units? will apparently be designated as critical habitat for the piping plover.
The ?units? include the land north and south sides of Oregon Inlet — as well as Green Island offshore in the inlet ? and Cape Point, the Hatteras Inlet spit, and the north and south points of Ocracoke.
The ?extra layer of protection? will only help the environmental groups in a lawsuit everyone assumes they will file once the Park Service issues its final rule on ORV use on the seashore toward the end of this year.
And the collateral damage from the critical habitat designation goes beyond issues of public access to the seashore beaches.
It will be another roadblock to replacing the Bonner Bridge.
?I can?t see how it will not affect the bridge replacement,? Beth Midgett, chairwoman of the Dare County Committee to Replace the Bonner Bridge, said yesterday.
However, Midgett first expressed her concerns about critical habitat in her comments to the Fish and Wildlife Service in June of 2008.
?Bottom line would be that I am not trusting that Defenders of Wildlife is above trying to kill two birds with one stone,? Midgett wrote in that letter. ?I think it is totally within the realm of possibility that they are not only trying to impose their wishes in regards to ORV use, but also trying to set precedent for injunction or add another layer of regulation that will later have to be addressed in the Bonner Bridge replacement FEIS/ROD and/or Section 7 consultation, Biological Opinion.?
As it turns out Midgett was correct in her evaluation.
And it?s interesting that she used almost the same phrase as Rylander did when she referred to ?another layer of protection.? Also note that reference to Defenders ?killing two birds with one stone.?
Midgett is very disturbed about the critical habitat designation and its implications for the bridge project.
Much of the construction project and the staging of it would happen on land that is apparently now critical habitat for piping plovers ? including the sites for the bridge landings, north and south beaches at Oregon Inlet, Green Island. And,
Midgett notes that the area behind the terminal groin on the north end of Pea Island is also included ? a groin that must be kept in place to protect the bridge.
Mike Murray still says he doesn?t think critical habitat will have much effect.
?I still believe that the designation will have little direct effect on how the NPS manages seashore beaches,? he said, ?but (it) could increase the amount of consultation required if NPS were to propose actions, such as a construction project, in the designated areas that could adversely modify the critical habitat.?
Murray did not directly respond to a question on whether or not a construction project might include the new Bonner Bridge.
He deferred on that question to the Fish and Wildlife Service ? even though the Park Service would be involved in permitting the bridge construction.
The fact of the matter now is that it matters not what the Park Service or Fish and Wildlife are willing to permit.
Rather it matters that the outside environmental advocacy groups that have been running the show on the seashore for more than two years have an even more powerful weapon to oppose public access to our beaches and a safe bridge when they go to court.
FOR MORE INFORMATION
Click here to read the judge?s decision in the CHAPA lawsuit against USFWS on critical habitat.
Click here to read seashore superintendent Mike Murray?s 2007 comments on critical habitat designation at Cape Hatteras.
Click here to read Beth Midgett?s public comment letter on critical habitat designation and how it might affect the Bonner Bridge replacement.
