The public now has yet another chance to comment on new regulations for off-road vehicles at the Cape Hatteras National Seashore that will have a major impact on our economy, culture, and lifestyle for years to come.
The National Park Service published its proposed regulation for ORVs at the seashore on July 6. Public comment is open for 60 days ? until Sept. 6.
Commenting on NPS plans and rules is getting tedious, to say the least.
At this point, many are asking why we should bother to comment once more.
We commented in public meetings on the Interim Protected Species Management Plan that was implemented in 2007 and immediately overtaken by a consent decree that settled a lawsuit by environmental groups. The consent decree trumps the publically vetted interim plan.
Many of us also filled out long ?workbooks? with our comments on that plan. That work was a wasted effort after the lawsuit and consent decree.
Next, many of us spoke during the public comment periods of the ill-fated negotiated rulemaking committee, which met in 2008 into 2009.
Then, about 15,000 people commented on the Draft Environmental Impact Statement, released in March of 2010 and made final in November of last year.
The park released a Record of Decision on its selected alternative, Alternative F, in the plan/FEIS in December of last year.
Now we have the rather short and concise proposed ORV rule, which has left us wondering what is left to comment on, what if anything we should comment on, and what difference it will make in the end.
It?s certainly a good question.
The Department of the Interior has not listened to most of the objections that people who advocate for more reasonable access have made.
Two glaring examples are the so-called science on which the natural resource protections, such as buffers around nests and chicks, is based and the really embarrassing economic analysis of the impact of the rule, which was not even released to the public until after the Final Environmental Impact Statement with the park?s choice of alternatives and two days after the Record of Decision.
In effect, the public had no opportunity ? not one ? to comment on the completed economic analysis.
I and others have written about the science, which, in the view of many, is not peer-reviewed. The Park Service says it is the best available science and has been peer reviewed. End of argument, I guess.
The economic analysis is referenced several times in the preamble to the proposed rule, and, despite objections raised by access groups, the public, local government, and organizations such as the Outer Banks Chamber of Commerce, is being totally embraced by DOI, NPS, and the Office of Budget and Management, which reviewed the regulation before it was released.
OMB did determine that the proposed rule was ?significant,? apparently because it raises ?novel legal or policy issues,? an apparent reference to the consent decree.
However, the economic impact is ?insignificant,? apparently because it will not have an effect of $100 million or more on the local economy.
Well, I guess most folks would agree that the economic damage won?t reach that level, but even a small fraction of that amount will do major damage to the economy of Hatteras and Ocracoke islands.
As the Outer Banks Chamber of Commerce noted in its public comments on the DEIS, by the Small Business Administration?s definition, almost all of the businesses in the seashore are small businesses.
Even an economic loss of just $1 million is a major impact if you happen to live here, operate a business here, or are employed by a local business.
I am especially amused by these passages in the proposed rule under the Regulatory Flexibility Act Section:
?The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq.). This certification is based on information contained in the report entitled ??Benefit-Cost Analysis of Proposed ORV Use Regulations in Cape Hatteras National Seashore,? available for review online at http://www.parkplanning.nps.gov/caha. According to that report, no entities, small or large, are directly regulated by the proposed rule, which only regulates visitors? use of ORVs.?
What does this mean? This selected alternative upon which the proposed rule is based affects all public use of what was intended to be a national seashore RECREATIONAL area. It affects the way islanders have used the beach for centuries and the way visitors have used it for almost 60 years.
This is not just an ORV issue.
?While close to 100 percent of the rule?s impacts would fall on small businesses, some popular areas, such as Cape Point, South Point, and Bodie Island spit, would have designated year-round or seasonal ORV routes. The presence of more Vehicle Free Areas (VFAs) for pedestrians, combined with increased parking for pedestrian access, could increase overall visitation and thereby help businesses to recoup some of the revenues lost as a result of ORV restrictions.?
So, close to 100 percent of the rule?s impact is on small businesses, but this is somehow mitigated by certain popular areas designated as year-round ORV routes and increased vehicle-free areas?
In reality, none of the year-round ORV routes will be open year round, since they are all subject to seasonal closures. Cape Point has been closed this year to ORVs for four months already.
Please note the use of the weasel word ?could? in the last sentence.
?The proposed rule includes a number of measures designed to mitigate effect on the number of visitors as well as the potential for indirect economic effects on village businesses that profit from patronage by Seashore visitors using ORVs. These include: New pedestrian and ORV beach access points, parking areas, pedestrian trails, routes between dunes, and ORV ramps to enhance ORV and pedestrian access; a designated year-round ORV route at Cape Point and South Point, subject to resource closures when breeding activity occurs; and pedestrian shoreline access along ocean and inlet shorelines adjacent to shorebird pre-nesting areas until breeding activity is observed. In addition, we will seek funding for an alternative transportation study and consider applications for businesses to offer beach and water shuttle services. These extra efforts to increase overall access and visitor use under the Selected Action, which we developed with extensive public involvement, should increase the probability that the economic impacts are on the low rather than the high end of the range.?
The Park Service neglects to note that the ?extensive public involvement? of island residents and frequent visitors was almost entirely negative about all of the proposals in the selected alternative.
Note the use of the weasel word ?should? increases the probability that the economic impacts are on the low side??
So all of these great new restrictions on beach access are going to be wonderful and maybe, should, or could mean that the economy of the island won?t be ruined.
This is an unacceptable and incomplete economic analysis.
?This action will result in increased costs to those visitors desiring to operate ORVs on the beach, due to the requirement for an ORV special use permit. However, the price of the permit would be based on a cost recovery system and would not result in a major increase in costs to visitors.?
Whether or not the permit is a ?major increase? to visitors remains to be seen.
The cost of a permit has not been determined yet, but will be based on cost recovery, and the Park Service has already said that the cost might be more than initially thought.
Cost recovery will include the additional costs of implementation and other things, such as the estimated number of permits that would be sold, which the park says will initially be a ?subjective? analysis.
As the Park Service has noted, the permits are not intended to guarantee access at all times to all areas designated as ORV routes.
It?s interesting to ponder how many visitors would actually buy permits, especially in the spring and summer, when they find out where they cannot drive.
As seashore superintendent Mike Murray has noted, the proposed rule is more about what?s in it and what?s not.
I guess advocates for more reasonable access should be happy that the resource management measures, such as buffers, are not mentioned in the rule, which is basically more difficult to change than the FEIS/plan/Record of Decision.
Resource management, according to the selected alternative, will be periodically re-evaluated and perhaps adjusted, Murray noted.
That could be good for access advocates ? or not.
Murray has said before that some people thought such resource management tools as buffers should be included in the rule. I am sure the environmental groups that sued the park over resource management want those buffers and pre-nesting areas as carved in stone as possible.
Even though it?s daunting to start commenting again and wondering whether it all matters in the end, we need to do this.
If we do, there is maybe a shot at changing something, somewhere — now or down the line.
If we don?t, what we see is what we get.
I think it?s certainly worth one more last push by advocates for reasonable access.
As of this morning, 38 folks had comments on the website www.regulations.gov.
Note that this is a different place to comment. Some past comments have gone to the Park Planning website.
When you comment, stay calm and focused. Make your point without ranting. Comment as often as you like on as many different subjects as you like.
If you see a comment on a point you want to make, don?t not send it in because someone else did. Send yours in anyway. Numbers matter.
You can check out the comments as they are posted on www.regulations.gov. Some of them are rather interesting.
FOR MORE INFORMATION
Click here to read the regulation.
Click here to read the Record of Decision on the selected alternative which was published last December.
The public comment period will be open from today until Sept. 6. Comments must be received on or before midnight (Eastern Daylight Time) on Tuesday, Sept. 6. The NPS says that it does not anticipate extending the public comment period beyond Sept. 6 because of the court deadline for completing the final rule.
You may submit comments on the Proposed Rule, identified by the Regulation Identifier Number: (RIN) 1024-AD85, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments
Mail or hand deliver to: Superintendent, Cape Hatteras National Seashore, 1401 National Park Drive, Manteo, North Carolina 27954.
Comments submitted through the Federal eRulemaking portal: http://www.regulations.gov or submitted by mail must be entered or postmarked before midnight (Eastern Daylight Time) Sept. 6. Comments submitted by hand delivery must be received by the close of business hours (5 p.m. Eastern Daylight Time) September 6, 2011. Comments will not be accepted by fax, e-mail, or in any way other than those specified above, and bulk comments in any format (hard copy or electronic) submitted on behalf of others will not be accepted.
All submissions received must include the agency name and RIN for this rulemaking: 1024-AD85. All comments received through the Federal eRulemaking portal at http://www.regulations.gov will be available without charge. Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
To view comments received through the Federal eRulemaking portal, go to http://www.regulations.gov and enter ?1024-AD85″ in the ?Keyword or ID? search box.
Past articles and blogs:
On the science of resource management: http://islandfreepress.org/PivotBlog/pivot/entry.php?id=84