Some advocates for more reasonable public access at the Cape Hatteras National Seashore are outright trashing the legislation passed last week by Congress that would make changes in the seashore’s off-road vehicle plan.
Others are scratching their heads, not sure what the legislation really means.
But I am here to tell you that these changes to the plan are significant — perhaps very significant.
Yes, it is true that the legislation is not what we had been hoping for — nor is it what was first proposed by the North Carolina Congressional delegation in bills they have introduced in two Congresses over the past four years.
The original bills would have overturned the ORV rule, finalized in 2012, and returned the management of the seashore to the publicly vetted Interim Protected Species Management Plan, first proposed in 2006, a year before environmental groups sued the Park Service over the shortcomings of that plan and the lack of an ORV plan.
The bills to overturn the final ORV plan passed the Republican-controlled House twice before this month’s legislation also passed as part of the defense bill.
In the Democrat-controlled Senate, the bill was defeated in the Committee for Natural Resources the first time, and then favorably reported out of that committee in June 2013 after a last-minute successful effort to write a substitute bill that garnered some Democratic support.
The compromise legislation is what the House and Senate passed earlier this month, after it became part of a public lands package of legislation that was added at the very last minute to the 201 National Defense Authorization Act.
The defense act is on the President’s desk awaiting his signature, and he is expected to sign it before the end of the year. The defense bill is what they call in D.C. “must-pass” legislation.
It’s too bad that the compromise legislation was not stronger, but it does make significant changes that — with a lot more work by advocates for more reasonable public access — will make a difference.
The legislation is not “magic.” Since the plan isn’t overturned, provisions of the ORV plan that are major points of contention will not change. There will still be such things as wildlife buffers, ORV permits, and closures for night driving.
However, Sen. Richard Burr, R-N.C., who was instrumental in the last-minute addition of the legislation to the defense bill, says that the most important thing it will do is to make the Park Service “more accountable” on access issues.
In other words, no longer will the Park Service close large swaths of beach for either federally listed or state species of special concern at will without at least some consideration of other issues, such as providing alternate public access or taking into consideration state wildlife concerns.
Here’s a closer look at the legislation’s provisions:
The Secretary of the Interior shall review and adjust wildlife buffers not later than 180 days after the enactment of the law. This is a biggie.
In modifying, the buffers, the Secretary shall use adaptive management. I like this definition of adaptation: “Something, such as a device or mechanism, that is changed or changes so as to become suitable to a new or special situation.” In other words, the buffers should not be “black-and-white” and unbendable, but should change to fit the situation.
This is similar to the exceptions the superintendent can now make when an American oystercatcher nests right next to Highway 12, as has been the case for several years east of Hatteras village. Strictly applied, the buffer would shut down traffic, but the superintendent can make certain exceptions in certain cases.
In modifying the buffers, the Secretary shall ensure they are of the shortest duration and smallest area possible, as determined in accordance with peer-reviewed science.
In my view, this will turn out to be the biggest problem with the legislation.
We will return to arguing with the National Park Service, and other federal agencies such as the U.S. Geological Survey, about what constitutes peer-reviewed science.
No matter what the federal agencies say, the Patuxent Protocols, designed by the USGS and upon which the buffers are based, are not peer reviewed.
Lately, the Park Service has been calling it the “best available science.”
However, it’s hard to believe that when every seashore up and down the East Coast has different buffers for the federally listed piping plover.
The superintendent of the Cape Lookout National Seashore, where the proposed buffers are much smaller than on Cape Hatteras, was recently quoted in a newspaper article that the buffers there could be smaller because there were fewer visitors at that seashore.
That doesn’t even make sense. All it takes is one pedestrian or ORV straying into a closure to harm a chick. Right?
Anyway, many access advocates have argued for years now about the peer-reviewed part of the science — so far to no avail. I have written many blogs on the issue, including four in March and April of 2010, that pretty well sum up the argument against the Patuxent Protocols. There are links to those blogs at the end of this one.
The Secretary will designate pedestrian and vehicle corridors around areas of the seashore that are closed for resource protection to allow for access to areas that are open.
This is also a big win for access. This would apply to Cape Point, which for much of the nesting season is open, but you just can’t get there because birds are nesting between the ramps and the Point.
The Secretary shall undertake a public process to consider, consistent with management requirements at the seashore, to consider three changes to the final rule.
The three changes include:
- Opening of beaches that are closed to night driving earlier each morning on a rolling basis as daily management reviews are completed. Right now, the beaches don’t open until 7 a.m. during the nesting season — several hours after daylight. This is because biologists check the beach each morning for new turtle and bird nests. And these patrols are often finished before 7 a.m.
- Extending seasonal off-road vehicle routes for addition time in the fall and spring if opening would not cause resource management problems. This is important, especially for areas in front of villages that, for instance, don’t open in the fall until Nov. 1 — long after most nesting has ended and the tourist season winds down.
- Modifying the size and location of vehicle-free areas. This would be a big win for public access also, especially on the northern Hatteras beaches and the vehicle-free area between Cape Point and Ramp 49.
These three changes require a public process, which to me means public meetings and public comment.
The Secretary shall construct new vehicle access points and roads at the seashore as expeditiously as practicable and in accordance with applicable management plans.
The new access areas are built with ORV permit fees. So far, there’s plenty of income from permits, but only one new access has been built. And that one was not finished until this fall and was not built according to the Park Service’s own plan for it.
Finally, the really big win in the legislation — the Secretary shall report back to Congress within one year after the date of enactment on measures taken to implement the changes.
In other words, there is a time limit on these changes and modifications. The Park Service cannot just drag its feet or say that all of the issues will be dealt with in the five-year review of the ORV plan, which is due in 2017.
The new seashore superintendent, Dave Hallac, who arrives the first of the year, will have his hands full.
How he handles the response to this legislation will be interesting, especially because he has a background in resource management — the first superintendent that I can remember in at least the past 25 years who is trained and experienced in wildlife biology.
Finally, here’s one more thought on the advantages of the legislation that was passed — it might avoid another trip to federal Judge Terrence Boyle’s courtroom. I am not a lawyer, but it seems that overturning the plan might give outside environmental groups a reason to go back to Boyle, who has sided with them throughout the rulemaking process.
Holding the Park Service’s feet to the fire on the changes will take a lot more work from advocates for reasonable access — and probably from the staffs of our Congressional delegation.
You can expect Southern Environmental Law Center, which sued the Park Service in 2007 on behalf of its clients, Defenders of Wildlife and the National Audubon Society, to fight the changes.
Here is what SELC had to say to another reporter about the legislation:
?The existing wildlife protection measures in the final Cape Hatteras ORV rule are already based on the best available scientific information, and they have resulted in record-setting tourism and wildlife breeding for three summers now,” said Julie Youngman, senior attorney at the Southern Environmental Law Center. ?We will work with the National Park Service to make sure the ORV plan remains scientifically sound. By requiring the National Park Service to re-do what it?s already done, the legislation wastes taxpayer time and resources.?
And that is just the beginning.
I want to close by noting that the very fact that this legislation passed both chambers of Congress is a miracle in itself.
Most would agree that our Congress has become dysfunctional, to say the least, but after a couple weeks of watching C-Span and live streaming from the Senate floor, I have to say that I am astounded that anything happens in D.C.
Getting the legislation took a lot of work:
- From advocacy groups for more reasonable public access, especially the Outer Banks Preservation Association, the North Carolina Beach Buggy Association, and the Cape Hatteras Anglers Club. There were other national groups that also helped, including the American Sportfishing Association.
- From residents of Hatteras and Ocracoke and regular visitors who wrote to their representatives in Washington and did other work to urge changes.
- From the North Carolina Congressional delegation. Sens. Burr and Democrat Kay Hagan and Republican U.S. Rep. Walter Jones and their staff members really worked for us on this one.
Now, the work continues. Stay tuned.
FOR MORE INFORMATION
Related stories from last week:
U.S. Senate, House poised to pass legislation that would change seashore’s ORV plan
House passes defense bill that includes changes to seashore ORV plan
Senate passes defense bill that includes changes to seashore’s ORV plan
Related blogs on peer-reviewed science:
Keep asking them to show us the science…March 2010
We are asking, but they aren’t telling…March 2010
They are showing us the science? March 2010
They are showing us the science? Part Two…April 2010
Here is the exact language for the Cape Hatteras National Seashore that is part of H.R. 3979:
SEC. 3057. CAPE HATTERAS NATIONAL SEASHORE RECREATIONAL AREA.
(a) DEFINITIONS.?In this section:
(1) FINAL RULE.?The term ??Final Rule??means the final rule entitled ??Special Regulations, Areas of the National Park System, Cape Hatteras National Seashore?Off-Road Vehicle Management??(77 Fed. Reg. 3123 (January 23, 2012)).
(2) NATIONAL SEASHORE.?The term ??National Seashore?? means the Cape Hatteras National Seashore Recreational Area.
(3) SECRETARY.?The term ??Secretary?? means the Secretary of the Interior.
(4) STATE.?The term ??State?? means the State of North Carolina.
(b) REVIEW AND ADJUSTMENT OF WILDLIFE PROTECTION BUFFERS.?
(1) IN GENERAL.?Not later than 180 days after the date of enactment of this Act, the Secretary shall review and modify wildlife buffers in the National Seashore in accordance with this subsection and any other applicable law.
(2) BUFFER MODIFICATIONS.?In modifying wildlife buffers under paragraph (1), the Secretary shall, using adaptive management practices?
(A) ensure that the buffers are of the shortest duration and cover the smallest area necessary to protect a species, as determined in accordance with peer-reviewed scientific data; and
(B) designate pedestrian and vehicle corridors around areas of the National Seashore closed because of wildlife buffers, to allow access to areas that are open.
(3) COORDINATION WITH STATE.?The Secretary, after coordinating with the State, shall determine appropriate buffer protections for species that are not listed under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), but that are identified for protection under State law.
(c) MODIFICATIONS TO FINAL RULE.?The Secretary shall undertake a public process to consider, consistent with management requirements at the National Seashore, the following changes to the Final Rule:
(1) Opening beaches at the National Seashore that are closed to night driving restrictions, by opening beach segments each morning on a rolling basis as daily management reviews are completed.
(2) Extending seasonal off-road vehicle routes for additional periods in the Fall and Spring if offroad vehicle use would not create resource management problems at the National Seashore.
(3) Modifying the size and location of vehicle free areas.
(d) CONSTRUCTION OF NEW VEHICLE ACCESS POINTS.?The Secretary shall construct new vehicle access points and roads at the National Seashore?
(1) as expeditiously as practicable; and
(2) in accordance with applicable management plans for the National Seashore.
(e) REPORT.?The Secretary shall report to Congress within 1 year after the date of enactment of this Act on measures taken to implement this section.