Getting down to the wire on ORV rulemaking

In a meeting with reporters this week, Cape Hatteras National Seashore Superintendent Mike Murray gave an update on the off-road vehicle rulemaking process.

?We?re reasonably on schedule, but we can?t dilly-dally around,? Murray said.

That is a bit of an understatement.

The National Park Service is under the gun to have a final ORV rule ready by the end of next year ? just 15 months from now — and have a new rule in place by April 1, 2011.

Those dates were set in a consent decree, signed by federal judge Terrence Boyle in April, 2008, that ended a lawsuit against the Park Service by environmental groups that challenged the seashore?s interim protected management plan, which was to protect nesting birds and turtles until there was a long-range ORV plan. Given the pace at which the federal bureaucracy moves forward, the short amount of time until the legal deadline is daunting.

And given Boyle?s comments on the record about his unhappiness that there is no ORV plan for the seashore, it?s not likely that he will be happy if the Park Service cannot meet the deadline.

Mike Murray says that he and his staff and the Park Service officials at the Southeast Regional Office in Atlanta and the national office in Washington, D.C. understand the time squeeze and will do all they can to fast-track the process.

?It?s on their radar,? Murray says of regional and national park officials.

But it?s a complicated process at best.

The Park Service has been without an ORV rule, which has been required by law for more than 30 years.  Park officials were hopeful that the rule would be worked out by a negotiated rulemaking committee of stakeholders.  After about a year and a half of meetings, the committee ended its work without making a recommendation to the Park Service.

So now the Park Service must do the rulemaking.

Operating under the National Environmental Policy Act (NEPA), park leadership must complete a Draft Environmental Impact Statement (DEIS) on off-road vehicle operation in the seashore, choose a preferred alternative, consult with the U.S. Fish and Wildlife Service on the alternative, draft a proposed rule, get the DEIS approved by the Department of the Interior, get it published in the Federal Register for 60 days of public comments, and have public meetings in the state and the regional  on the DEIS and preferred alternative.

And all of this must be done this fall and winter to keep the rulemaking on schedule.

?We are in the process of reviewing hundreds of pages of draft chapters,? Murray said this week.

He noted that he and his staff had not seen all of the chapters yet and that he was not sure when they would.

The best he could offer is that the DEIS will be completed and published and meetings will be scheduled late fall ? before the new year.  Fall, he noted, doesn?t end until the winter solstice on Dec. 21.

Murray said he expected the seashore staff would meet in a few weeks with Sandy Hamilton, project manager for the National Park Service?s Environmental Quality Division, and the contractor, Louis Berger Group, Inc., of Raleigh, the environmental engineering firm that is helping prepare the NEPA compliance documents.

Then the DEIS must go to regional and national headquarters for review.  

You can see that even if these reviews are put on the fast track, we?re quickly getting into November.

Once the DEIS is published in the Federal Register, Murray said, that the public will have a few weeks to review it before public meetings are scheduled on the Outer Banks and probably such areas as Raleigh, Virginia, and Washington, D.C.

The public will have 60 days to comment on the DEIS and preferred alternative.

Murray offered this vague timeline for the rulemaking process:

?    Winter, 2009. Office of Management and Budget reviews benefit/cost and regulatory analyses for the proposed rule, meetings, and comment period.

?    Spring, 2010.  Analysis of public comment on DEIS is completed, NPS receives biological opinion from U.S. Fish and Wildlife Service, analysis of public comment on proposed rule begins, Final Environmental Impact Statement (FEIS) is prepared and responses to public comment begin.

?    Summer, 2010.  FEIS and responses to public comments are completed, FEIS is approved by the Department of the Interior, Notice of Availability for FEIS is published in Federal Register.

?    Fall, 2010.  The Record of decision on ORV rulemaking is drafted and signed and a summary is published in the Federal Register.

?    Winter, 2010.  The final rule is approved by DOI and published in the Federal Register.

He also noted that adjustments will be made for these estimated milestones, ?though not necessarily in the total time? for the process.

And he indicated that it is unlikely that the economic analysis now in the hands of a Raleigh contractor will be finished in time for the DEIS.  The contractor is doing both a survey on the impact of access on small businesses and a visitor intercept survey.

Murray seems fairly confident that the deadlines spelled out in the consent decree can be met.

It still seems to me like a stretch.

All of us who have an interest in the access to the seashore beaches in the future have to stay informed and be prepared to attend meetings and submit comments.

The Park Service, Murray said, expects a ?high volume? of responses ? more than the 4,000 comments for the NEPA public scoping several years ago.

You can be sure that environmental groups will be urging all of their members to submit comments.

The Island Free Press will continue to update readers on the process ? the progress of the DEIS, the meeting schedule, and the time for public comment.

(More articles on negotiated rulemaking and other issues can be found on the Beach Access and Park Issues Page and in the Archives.)