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The new Senior Lifetime Membership is not retroactive in any form and is available from this day forward.

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CHAPA - A significant milestone.....

Cape Hatteras Access Preservation Alliance

Post Office Box 1355

Buxton, North Carolina 27920

March 14, 2017

A significant milestone…..

On January 20, 2017 the National Park Service (NPS) implemented a new ORV Management Rule at the Cape Hatteras National Seashore Recreational Area (Seashore). The new rule replaced the previous rule which had been in effect since February, 2012. With this action, the NPS has officially addressed each component of the Defense Authorization Act of Fiscal Year 2015, Section 3057: Cape Hatteras National Seashore Recreational Area (Act).

The completion of the NPS actions in response to the Act is a significant milestone in the efforts of beach access advocates which have been ongoing since the 1970s when executive orders were issued requiring the designation of ORV routes and areas on NPS lands.

The NPS aggressively began an effort to establish an ORV rule for the Seashore in 2005 in response to lawsuits from several environmental organizations in the previous few years. The Cape Hatteras Access Preservation Alliance (CHAPA), led by the Outer Banks Preservation Association (OBPA), North Carolina Beach Buggy Association (NCBBA) and the Cape Hatteras Anglers Club (CHAC), has fought for the past 17 years on behalf of the members of these organizations and for all beach access advocates to insure any rules or policies implemented would preserve and protect the natural resources and recreational opportunities within the Seashore without prohibiting the access formally promised to the public at the Seashore’s dedication in 1958 by the director of the NPS, Conrad Wirth.

The first rule and associated wildlife management practices, which were implemented in February of 2012, had significant shortcomings. Congress recognized these shortcomings and passed the Act in December of 2014 requiring that they be addressed. The Act and many of the changes made by NPS to respond to the Act were influenced by recommendations made by CHAPA, its member organizations, representatives of local governments and the individuals who have advocated beach access throughout this process.

At this milestone, it is important to reflect on the changes made regarding pedestrian and ORV access to the Seashore as a result of the Act and to look forward to the future.

Successes

Review and Adjustment of Wildlife Buffers

Numerous wildlife protection buffers were modified on June 15, 2015 in response to the Act requirement that they be addressed within 180 days. Several of the changes significantly improved access in 2015/16. Some of the changes positively improved access in theory but only marginally in practice.

3/14/2017

CHAPA

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The amount of beach open to ORV and pedestrian access during the months of July, August, September and October was significantly greater in 2015 and 2016 than in the previous years under the 2012 ORV plan.

Table 1: Year Round ORV Oceanfront Access (excludes seasonally opened mileage) Smallest Amount Opened/Largest Amount Closed by Year

 

 

Oceanfront ORV

Oceanfront ORV

Oceanfront ORV

Date of Largest

 

 

Miles Open

Miles Closed

Miles Total

Closure

2012

 

15.70

9.50

25.2

8/15/2012

2013

 

9.55

15.65

25.2

8/21/2013

2014

 

13.66

11.54

25.2

8/20/2014

2015

(pre 7/15)

16.95

8.25

25.2

6/3/2015

2015

(post 7/15)

20.29

4.92

25.2

7/22/2015

2016

 

20.70

4.50

25.2

6/8/2016

Approximately 4 -5 miles of oceanfront ORV access are closed for almost all of each summer due to buffers for nesting birds and chicks at the points and spits. In 2012, a tern colony closed the beach at ramp 27 for over two months preventing access to almost three miles of beach (prior to construction of Ramp 25). Prior to the changes made in 2015 (described below), turtle nests accounted for the majority of the other miles closed during the summer. In 2016, the low point for access occurred in early June. In July and August, ORV access ranged between 23 and 24.5 miles.

Turtles

Changes in turtle nest management procedures were implemented on June 15, 2015. Smaller buffers around the nest when first laid allow for ORV passage behind or in front of the nest until the hatch window is reached except in extremely narrow sections of beach. During the hatch window, using procedures described by the North Carolina Wildlife Resources Commission, NPS personnel install a corridor in front of the nest for ORV passage during the day. In the evening, ruts within the corridor are raked smooth to provide clear passage for hatchlings should the hatch occur overnight. Driving corridors were placed in front of 47 sea turtles nests in 2016. These changes significantly reduced and almost eliminated ORV and pedestrian closures due to turtle nests in 2015 and 2016 (both record setting years for nesting).

Piping Plovers

The changes regarding Piping Plover nest buffers (reduced from 75 meters to 50 meters) and unfledged chicks buffers (reduced from 1000 meters to 500 meters or 200 meters under certain conditions for ORVs, and reduced from 300 meters to 100 meters for pedestrians) reflect the guidelines published in the Piping Plover Recovery Plan and are consistent with the changes CHAPA had recommended. The size of closures due to piping plovers should be smaller than what has occurred over the past decade, but their impact on ORV and pedestrian access will be highly dependent on the physical locations of the nests and broods and on the landscape of the affected beaches.

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CHAPA

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The reductions in the size of pre-hatch plover and oystercatcher nest buffers increase the likelihood that closure of Cape Point in the spring will be delayed from mid-April until mid-May. This, in fact, happened in 2016.

The reduction in size of closures for unfledged plover chicks also increases the likelihood that ramp 44 will be open to ORV access in June, July and August. In 2016, Ramp 44 was closed for a period due to flooding from excessive rain events over the previous six months; however, it was never closed due to unfledged plover chicks. Flooding at Cape Point also likely caused plovers to locate their nests further to the west than in previous years, further reducing the threat to closure of Ramp 44. While the physical location of the unfledged chicks will continue to determine where closures are necessary, the smaller buffers are a positive change which should favorably affect ORV and pedestrian access in the future.

American Oystercatchers

Nesting and pre-fledged buffers for American Oystercatchers (AMOY) were not changed because the NPS did not find adequate peer-reviewed scientific data to support a change. However, peer-reviewed scientific data was identified that supported the use of an ORV only corridor located between 50 meters and 25 meters from the nest location until the eggs hatch. The use of the ORV-only corridor was adopted by the NPS. As noted above, Cape Point remained open a month longer in the spring due to this change, combined with the changes made for piping plovers’ nests. However, closures due to unfledged AMOY chicks continued to prevent access for part of the summer.

Colonial Waterbirds

Nesting buffers for Colonial Waterbirds were not changed because the NPS did not find adequate peer-reviewed scientific data to support a change. The buffer for unfledged least tern chicks was reduced from 200 meters to 100 meters. This change did not affect access favorably or unfavorably in 2015/16. Conceivably, if least terns establish colonies on a wide expanse of beach, such as at Cape Point or South Point, this change in policy could allow sections of the beach to remain open when they would have previously been closed. However, beaches in other locations are generally too narrow to benefit from the change from 200 to 100 meters. The 2012 Ramp 27 closure described earlier would still occur in the future should terns choose to nest at that location again.

Modifications to Final Rule

Several significant changes to the ORV rule were implemented on January 20, 2017. All of these changes have a positive impact on ORV access.

One mile of Vehicle Free Areas (VFAs) was re-designated as year-round ORV access. Ramp 2 was restored and reopened and the plan to replace ramp 59 was cancelled. At each location, a half mile of beach previously designated as VFA was re-opened to year -round access.

Two miles of VFAs were re-designated as seasonal ORV routes. 1.5 miles of VFA south of Ramp 23 and one mile of VFA north of Ramp 34 were re-opened.

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CHAPA

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Seasonal ORV routes will open 2 weeks earlier in the fall (October 15) and close two weeks later in the spring (April 14) providing an additional month of ORV access in front of the villages.

Ten priority ORV routes will open at 6:00 a.m. in May, June, July; open at 6.30 a.m. in August and September; open at 7:00 a.m. in October, November. Non-priority routes will open at 7:00 a.m. Priority routes include Ramps 2, 4, 25, 27, 43, 44, 48, 49, 70, and 72. Previously, all ORV routes were opened at 7:00 a.m. from May 1 until the later of September 15 or when turtle nests had hatched within each route.

Annual ORV permits will begin and end on date issued. 7-day permits will be replaced with a 10-day permit.

The bypass road was extended north to Ramp 44 and south to the open beach approaching Cape Point and was designated part of the route. This change will reduce the likelihood that access to Cape Point will be closed due to erosion, ocean over wash, or turtle nests within this stretch of beach.

Construction of New Vehicle Access Points

A number of positive infrastructure projects have been authorized and many completed over the course of the past two years.

The NPS identified and prioritized 29 infrastructure projects it deemed important to public access at the Seashore in July, 2013. In March 2015, Superintendent David Hallac initiated a review of those projects with objectives to update both the projects on the list and their priorities. CHAPA met with the NPS on several occasions to provide recommendations for changes, many of which were adopted. Several of the projects identified in 2013 along with several new projects were placed on a fast track to completion due to the Act.

Some of the completed projects are:

New ORV Ramp 32 on Hatteras Island was constructed and opened in late summer of 2015.

The inside ORV road connecting ramp 49 to ramp 44 was completed in early winter of 2016.

New ORV Ramp 48 on Hatteras Island was constructed and opened in late fall of 2015.

Plans to construct a new ramp south of ramp 2 on Bodie Island were scrapped and existing ramp 2 was reopened.

Plans to construct a new ramp west of ramp 59 on Ocracoke were scrapped and existing ramp 59 will remain open in the future.

New ORV bypass extending approximately 2,800 feet from ramp 44 to Cape Point behind dunes was constructed and opened in late January, 2017.

Ramp 49 on Hatteras Island was elevated three feet to reduce the threat of flooding similar to what occurred during the fall, winter and spring of 2016. This project was completed in early fall, 2016.

Project to elevate Ramp 44 on Hatteras Island by two feet to reduce the threat of flooding similar to what occurred during the fall, winter and spring of 2016 was initiated in late fall of 2016 and will be completed by early spring of 2017.

New ORV ramp 63 on Ocracoke was constructed and opened in 2016.

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CHAPA

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Two soundside access areas with parking were designated on Ocracoke (Devils Shoals Road and South Bitterswash Creek).

Disappointments and Failures

The changes which have occurred in response to the Act have all positively impacted visitor access to the Seashore to one degree or another. However, a number of CHAPA recommendations were not adopted by NPS. These unfulfilled recommendations represent missed opportunities to further improve the visitors’ abilities to use the Seashore in ways to which they have been accustomed since its inception.

Wildlife Buffers

With regard to wildlife management, buffers and closures for unfledged piping plovers, American oystercatchers and colonial waterbirds will continue to prevent pedestrian and ORV access during most of the summer at key locations within the seashore, including Bodie Island Spit, Cape Point, Hatteras Inlet (when not flooded), Ocracoke at Hatteras Inlet and South Point. Although the buffer for unfledged plover chicks has been significantly reduced, the buffers for unfledged oystercatchers and colonial waterbirds have changed only minimally. Given the historical location of nests for these species, odds are high that Cape Point and South Point will continue to be closed from the middle of May until late August.

As you can see in Table 2, although piping plover chicks fledged by mid July, the Point did not reopen until late August in 2013, 2014, and 2015. It remained closed because of unfledged oystercatchers and colonial waterbirds. The earlier re-opening in 2016 occurred because an oystercatcher was lost earlier than expected, likely due to predation.

Table 2: Cape Point Historical Close / Reopen Dates

Year

Closed

Reopened

Plover Fledged Date

2011

3/11/2011

7/18/2011

7/18/2011

2012

4/09/2012

8/03/2012

8/03/2012

2013

4/09/2013

8/23/2013

7/16/2013

2014

4/02/2014

8/26/2014

7/18/2014

2015

4/06/2015

8/30/2015

7/15/2015(?)

2016

5/11/2016

7/27/2016

7/15/2016(?)

Other areas of otherwise open beach are also at risk for closure should oystercatchers or colonial waterbirds choose to nest in these areas.

The Act required that 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.�? Scientific data for these species are limited. As a result, the NPS was conservative in the changes it was willing to adopt. Attention must be given to identifying or developing science regarding these non- threatened non- endangered species that will provide options to preserving access.

ORV Rule

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CHAPA

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Collectively, the changes in ORV routes which were recommended by CHAPA but not adopted by NPS would have moderately increased the amount of beach available for access without compromising any of the objectives which were sought through the designations of routes in the original rule in 2012. A summary of CHAPA recommendations for ORV routes follows.

Year-round Vehicle Free Areas should be reduced 7.5 miles (from 26 miles to 18.5 miles). The new rule reduced VFA s by 3 miles (from 26 miles to 23 miles).

Bodie Island Spit and the South Beach (from Cape Point towards Frisco) continue to be classified as Vehicle Free Areas and remain closed year round to ORV access. Further, the rule does not provide for designation of a temporary ORV corridor from old Ramp 45 to Cape Point when circumstances such as flooding or erosion prevent access from Ramp 44, a modification to the rule which had been proposed by CHAPA.

One and a half miles of beachfront should be re-designated to year round ORV routes (from 25.2 miles to 26.7 miles). The new rule increases year-round routes by 1 mile, .5 mile less than CHAPA’s recommendation.

Six miles of VFAs on the oceanfront should be re-designated to Seasonal ORV routes (from 13 miles to 19 miles). The new rule increases Seasonal routes by two miles, four miles less than

CHAPA’s recommendation.

Seasonal ORV Routes open on October 1 and close on April 30 rather than the October 15 – April 14 dates chosen for the new rule.

Future

CHAPA believes the future will offer opportunities to further improve the visitor experience through greater access as intended by Congress, and without impairment to resource protection objectives. Continued compliance with the Act will be a requirement when changes to wildlife buffers or to the ORV rule are considered in the future. We will continue to make recommendations to the NPS for changes consistent with Act, the enabling legislation, and the objectives of the organizations and people we have represented over the past 17 years.

CHAPA believes the changes which have been made to wildlife protection buffers and to the ORV rule over the past two years signal a turning point in our effort to preserve visitor access to the beaches at the Seashore. We look forward to partnering with the NPS to find solutions to resolve the disappointments and failures described above as well as to find solutions for new issues that arise in the future.

We urge all who advocate access at the Seashore to remain involved and to stay aware of what is happening, let the rangers and volunteers at the Seashore know you appreciate their work, and take a personal interest in making our Seashore the best it can be. Our efforts will insure the Seashore remains the Cape Hatteras National Seashore Recreational Area for now and for future generations.

John Couch

President, Outer Banks Preservation Association (OBPA)

The Cape Hatteras Access Preservation Alliance (CHAPA) is a project of the OBPA

3/14/2017

CHAPA

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"The Final Rule"

Cape Hatteras National Seashore Completes All Work Related to the National Defense Authorization Act for Fiscal Year 2015
 
On December 19, 2014, the President of the United States signed the National Defense Authorization Act (NDAA) for Fiscal Year 2015. The NDAA required that Cape Hatteras National Seashore (Seashore) modify wildlife protection buffers, accelerate the construction of vehicle access points and roads, report back to congress within one year of the date of the NDAA, and undertake a public process to consider changes to the Seashore's Final Rule on off-road vehicle (ORV) management. Specifically, the NDAA required the Seashore to consider three specific changes to the Seashore's 2012 Final Rule regarding: (1) morning opening of beaches that are closed to ORV use at night, (2) the dates for seasonal ORV routes, and (3) the size and location of Vehicle Free Areas (VFAs).  Wildlife protection buffers were modified in June 2015, all vehicle access points were constructed, and a report to Congress was finalized before the end of December 2015.
 
On December 19, 2016, the Seashore published a Finding of No Significant Impact (FONSI), and on December 21, 2016, the Seashore will complete the final task related to the Fiscal Year 2015 NDAA by amending its existing Final Rule for ORV use at the Seashore in the Federal Register.
 
Summary: The Seashore, on December 21, 2016, will amend its Final Rule for ORV use at the Seashore to: (1) allow for earlier morning openings of certain beaches open to ORV use, (2) extend the dates for ORV seasonal routes by two weeks in the spring and fall, and (3) modify the size and location of a few VFAs. Final Rule changes were made in response to the NDAA for Fiscal Year 2015. The Seashore also amended the Final Rule to allow the Seashore to issue ORV permits that will be valid for different lengths of time than previously existed, revise an ORV route designation to allow pedestrian use of a sound-side area on Ocracoke Island without requirement for an ORV permit, and extend an existing bypass route at Cape Point. For full details on the Final Rule, go to the Federal Register at https://www.federalregister.gov/documents/2016/12/21/2016-30735/special-regulations-areas-of-the-national-park-system-cape-hatteras-national-seashore-off-road 
To view the FONSI, go to
Implementation: The implementation of the amended Final Rule will occur in the months following its publication date.
 
 
 
Frequently Asked Questions
 
What is a Final Rule for off-road vehicle (ORV) management at Cape Hatteras National Seashore (Seashore)?
 
The Final Rule establishes new Federal regulations that describe ORV routes and other details associated with where, when, and how ORVs may access Seashore beaches. 
 
Why did the Seashore make changes to its special regulation on off-road vehicle use?
On December 19, 2014, the President of the United States signed the National Defense Authorization Act (NDAA) for Fiscal Year 2015. The NDAA stated:
 
"The Secretary shall undertake a public process to consider, consistent with management requirements at Cape Hatteras 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 off-road vehicle use would not create resource management problems at the National Seashore.
(3) Modifying the size and location of vehicle-free areas."
 
What existing special regulations describe where, when, and how off road vehicles can access Seashore beaches?
A special regulation, often referred to as the "final rule" was published in the Federal Register on January 23, 2012. The modified Final Rule, dated December 21, 2016, can be found at https://www.federalregister.gov/documents/2016/12/21/2016-30735/special-regulations-areas-of-the-national-park-system-cape-hatteras-national-seashore----off-road (Document #: 2016-30735).
 
Where can I receive general information about off road vehicle management and use at the Seashore?
The park currently has a special Off-Road Vehicle webpage with information needed for off-road travel in the Seashore. Click here for more information.

https://www.nps.gov/caha/planyourvisit/beachactivities.htm#ORV 

Didn't the Seashore already evaluate changes through an Environmental Assessment entitled: Consideration of modifications to the final rule for ORV management?  If so, why is there a separate Final Rule?
Yes, the Seashore published this Environmental Assessment in February 2016. That document can be found here. The environmental assessment included a preferred alternative that described proposed changes and impacts of those alternatives, to the Seashore's final rule for ORV management. However, special regulations are required to change existing regulations for ORV use on National Park Service lands. The Final Rule largely describes the technical details that are required to implement the Seashore's preferred alternative. 
 
Was the public engaged during the process to prepare the Environmental Assessment?
Yes, the Seashore held five public scoping meetings during August of 2015 and provided a 30-day period during which scoping comments could be provided (7/30-8/21/15).  A public scoping report, summarizing the comments received, can be found here. Using the ideas and information gained during the scoping period, the Seashore developed a range of alternatives, including a preferred alternative (Alternative 2) and released an Environmental Assessment for public comment in February 2016.  At that time, the Seashore provided a 30-day comment period and held another five public meetings in the following locations:  Kitty Hawk (2/26/16), Hampton, VA (2/29/16), Buxton (3/1/16), Ocracoke (3/2/16), and Raleigh, NC (3/3/16). Comments on the Environmental Assessment were reviewed and considered in the preparation of the proposed rule.
 
Was the public engaged during the process to prepare the Final Rule?
Yes, a 30-day comment period began after publishing of an Environmental Assessment on modifications to the Final Rule and a 60-day public comment period began immediately following the publishing of a proposed amendment to the Final Rule on August 22, 2016. Thousands of correspondences were received from individuals and organizations. A public comment/response report will be available for viewing after the Final Rule is published and will be located at
Is there a public comment period on the Final Rule?
The rulemaking process does not provide for a public comment period for a Final Rule. 
 
When will the Final Rule go into effect and when might the public see those changes implemented on the ground?
The Final Rule will be effective no less than 30 days after the date of publication in the Federal Register, which is December 21, 2016. For more information on that process, click here. Implementation of the Final Rule will occur in the months following the date of Final Rule publication. The Seashore intends to implement most changes, other than those that require construction, prior to the 2017 summer season.
 
 

Nies v Emerald Isle -- Supreme Court Dismisses Appeal

All,

The North Carolina Supreme Court provided the users of the State’s ocean beaches with an early Christmas present today by dismissing the Nies appeal (see attached). In doing so, the opinion of the North Carolina Court of Appeals stands as the law in North Carolina unless and until the Legislature or the North Carolina Supreme Court addresses it in the future. There is some limited chance that the Nies will seek to appeal to the U.S. Supreme Court or to seek some other Federal remedy. An appeal to the U. S. Supreme Court in this case is highly unlikely to be accepted, and any collateral Federal remedy will have to start from the bottom of the legal process with a lot of expense for the Nies and with a high likelihood of an unfavorable outcome. Time will tell, but for now, this is as good an outcome as can be expected.

Again, I appreciate your allowing me to prepare an amicus brief in this case on your behalf. While we will likely never know how the brief affected the ultimate outcome, Emerald Isle’s attorney assures me it was helpful to the cause.

Thank you,

-Ben

Benjamin M. Gallop, Attorney at Law
Hornthal, Riley, Ellis & Maland, LLP
2502 S. Croatan Highway, Nags Head, NC 27959
T:   (252) 441-0871
F:   (252) 441-8822
E:  
bmgallop@hrem.com<mailto:bmgallop@hrem.com>
W:  
http://www.hrem.com<http://www.hrem.com/>