29–010 

Calendar No. 180 

113TH CONGRESS REPORT " ! SENATE 1st Session 113–102 

PRESERVING PUBLIC ACCESS TO CAPE HATTERAS 

BEACHES 

SEPTEMBER 10, 2013.—Ordered to be printed 

Mr. WYDEN, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 486] 

The Committee on Energy and Natural Resources, to which was 

referred the bill (S. 486) to authorize pedestrian and motorized vehicular access in Cape Hatteras National Seashore Recreational 

Area, and for other purposes, having considered the same, reports 

favorably thereon with an amendment and recommends that the 

bill, as amended, do pass. 

The amendment is as follows: 

Strike out all after the enacting clause and insert in lieu thereof 

the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Preserving Public Access to Cape Hatteras Beaches 

Act’’. 

SEC. 2. DEFINITIONS. 

In this Act: 

(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. 

SEC. 3. REVIEW AND ADJUSTMENT OF WILDLIFE PROTECTION BUFFERS. 

(a) 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 section and any other applicable law. 

(b) BUFFER MODIFICATIONS.—In modifying wildlife buffers under subsection (a), 

the Secretary shall, using adaptive management practices— 


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(1) 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 

(2) designate pedestrian and vehicle corridors around areas of the National 

Seashore closed because of wildlife buffers, to allow access to areas that are 

open. 

(c) 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. 

SEC. 4. 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 off-road vehicle use would not create resource management 

problems at the National Seashore. 

(3) Modifying the size and location of vehicle-free areas. 

SEC. 5. 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. 

SEC. 6. REPORT. 

The Secretary shall report to Congress within 1 year after the date of enactment 

of this Act on measures taken to implement this Act. 

PURPOSE

The purpose of S. 486, as ordered reported, is to direct the Secretary of the Interior to review and modify wildlife buffers at Cape 

Hatteras National Seashore in North Carolina, and to undertake a 

public process to consider changes to the National Park Service’s 

regulations which would allow increased motorized access to certain beaches in the National Seashore. 

BACKGROUND AND NEED

Officially authorized in 1937 along the Outer Banks of North 

Carolina, Cape Hatteras is the nation’s first national seashore. 

Consisting of more than 30,000 acres distributed along approximately 64 miles of shoreline, Cape Hatteras National Seashore 

Recreation Area (National Seashore) is part of a dynamic barrier 

island system. Millions of visitors come to the National Seashore 

each year to engage in recreational activities such as fishing, hunting, surfing, boating, beach driving, and bird and wildlife viewing. 

The National Seashore also provides important habitat for various 

species of wildlife and serves as a wintering area for migratory waterfowl. It is home to several species that are listed as threatened 

or endangered under the Endangered Species Act, including the endangered leatherback turtle and the piping plover. 

In 2007, the National Park Service implemented an Interim Protected Species Management Strategy (Interim Strategy) governing 

off-road vehicle (ORV) use at the National Seashore to address resource protection, visitor safety, and potential conflicts among various park users. The Interim Strategy was implemented in response to a lawsuit filed in 2005 claiming that the National Park 


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Service had failed to protect species and establish an ORV management plan, as required by the agency’s regulations. 

In October 2007, another lawsuit was filed against the National 

Park Service alleging that the Interim Strategy was inadequate 

and that the Seashore’s management of ORV use violated existing 

laws, including the Endangered Species Act, the National Park 

Service Organic Act, an executive order relating to ORV use, and 

National Park Service regulations regarding ORV use in units of 

the national park system. 

In April 2008, a U.S. District Court Judge signed a consent decree to settle the lawsuit. The consent decree was agreed to by the 

plaintiffs and the National Park Service; and by Dare and Hyde 

Counties and a coalition of local ORV and fishing groups who participated in the lawsuit as interveners. 

Pursuant to the consent decree, the National Park Service was 

required to complete an ORV Management Plan and an accompanying environmental impact statement for the seashore by December 31, 2010, and complete a final Special Regulation by 2011. 

On February 15, 2012, the final ORV Management Plan/Environmental Impact Statement and special regulation went into effect 

for the National Seashore (77 Fed. Reg. 3123). The final plan includes a five-year periodic review process that allows for evaluation 

and modifications to be made, if necessary. 

While the National Park Service believes that the rule brings the 

National Seashore into compliance with the Executive Orders and 

other applicable laws and policies after many years of non-compliance, opponents of the rule believe it unfairly limits historic access 

to the seashore, in particular the use of off-road vehicles on certain 

beaches, thereby decreasing economic activity in the region. 

As ordered reported, S. 486 would leave the final rule in effect, 

but would direct the National Park Service to modify wildlife buffers within the National Seashore to provide for greater motorized 

and pedestrian access, while maintaining the necessary protection 

for wildlife required by existing laws, and to consider modifications 

to the rule that would provide for increased ORV access within the 

National Seashore. 

LEGISLATIVE HISTORY

Senators Burr and Hagan introduced S. 486 on March 7, 2013. 

Senator Manchin is a cosponsor. The Subcommittee on National 

Parks held a hearing on S. 486 on April 23, 2013. At its business 

meeting on June 18, 2013 the Committee ordered S. 486 favorably 

reported with an amendment in the nature of a substitute. 

In the 112th Congress, a similar bill, S. 2372, was introduced by 

Senators Burr and Hagan on April 26, 2012. The Subcommittee on 

National Parks held a hearing on S. 2372 on June 27, 2012 (S. Hrg. 

112–578). Similar legislation was also included in H.R. 2578, the 

Conservation and Economic Growth Act, which passed the House 

of Representatives by a vote of 232–188 on June 19, 2012. 

COMMITTEE RECOMMENDATION

The Senate Committee on Energy and Natural Resources, in 

open business session on June 18, 2013, by a voice vote of a 

quorum present, recommends that the Senate pass S. 486 if 

amended as described herein. 


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COMMITTEE AMENDMENT

During its consideration of S. 486, the Committee adopted an 

amendment in the nature of a substitute. The amendment would 

leave the current National Park Service regulations governing offroad vehicle use at the National Seashore in place, but require that 

the Secretary of the Interior review and adjust wildlife protection 

buffers, using adaptive management practices, to ensure that the 

buffers are of the shortest possible duration and cover the smallest 

area necessary to protect the species. The Secretary would also be 

required to designate pedstrian and vehicle corridors around areas 

of the National Seashore that are closed because of wildlife buffers, 

to allow access to other areas that are open. 

Additionally, the substitute amendment would direct the Secretary to undertake a public process to consider changes to the National Park Service’s Final Rule that would allow for greater offroad vehicle access on beaches within the National Seashore. Finally, the amendment directs the Secretary to expeditiously construct new vehicle access points and roads within the National Seashore in accordance with applicable management plans. 

The amendment is described in detail in the section-by-section 

analysis below. 

SECTION-BY-SECTION ANALYSIS

Section 1 provides for the short title, the ‘‘Preserving Public Access to Cape Hatteras Beaches Act.’’ 

Section 2 defines key terms in the bill. 

Section 3(a) directs the Secretary of the Interior (Secretary), not 

later than 180 days after the date of enactment of this Act, to review and modify wildlife buffers applicable to the Cape Hatteras 

National Seashore Recreational Area (National Seashore) in accordance with this section and any other applicable law. 

Subsection (b) requires that the Secretary, in modifying wildlife 

buffers under subsection (a), use adaptive management strategies 

to: (1) ensure that wildlife buffers are of the shortest possible duration and cover the smallest possible area necessary to protect a 

species as determined by peer reviewed scientific data; and (2) designate pedestrian and vehicle corridors around areas closed because of wildlife buffers, to allow access to areas that are open. 

Subsection (c) requires that the Secretary coordinate with the 

State of North Carolina in determining appropriate buffer protections for species that are not listed under the Endangered Species 

Act of 1973 (16 U.S.C. 1531 et sec.), but are identified for protection under State law. 

Section (4) directs the Secretary to undertake a public process to 

consider changes to the Final Rule (77 Fed. Reg. 3123) that would: 

open segments of beaches closed to night driving on a rolling basis; 

extend seasonal off-road vehicle routes for additional periods in the 

Fall and Spring; and modify the size and location of vehicle-free 

areas. 

Section (5) requires that the Secretary, as expeditiously as practicable, construct new vehicle access points and roads at the National Seashore in accordance with applicable management plans 

for the National Seashore. 


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Section (6) directs the Secretary to report to Congress on measures taken to implement this Act within 1 year after the date of 

enactment. 

COST AND BUDGETARY CONSIDERATIONS

The following estimate of costs of this measure has been provided 

by the Congressional Budget Office: 

S. 486—Preserving Public Access to Cape Hatteras Beaches Act 

S. 486 would require modifications to the management of the 

Cape Hatteras National Seashore in North Carolina. Under the 

bill, the Secretary of the Interior would review and modify wildlife 

buffers on the seashore to cover the smallest area necessary. S. 486 

also would require the Secretary to construct new vehicle access 

points to the seashore. The National Park Service (NPS) would be 

directed to conduct a public process to consider modifications to the 

existing management plan for the seashore. 

Based on information provided by the NPS, CBO estimates that implementing S. 486 would cost about $6 million over the 2014– 

2018 period, assuming the availability of appropriated funds. That 

amount includes an estimated increase in administrative costs of 

$1 million annually to monitor wildlife buffer areas and $1 million 

to prepare and implement a modified management plan. The NPS 

is currently constructing new vehicle-access points at the seashore, 

so implementing that provision of S. 486 would have no additional 

cost. Pay-as-you-go procedures do not apply to this legislation because it would not affect direct spending or revenues. 

S. 486 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act and would impose no costs on state, local, or tribal governments. 

On May 31, 2013, CBO transmitted a cost estimate for H.R. 819, 

the Preserving Access to Cape Hatteras National Seashore Recreational Area Act, as ordered reported by the House Committee on 

Natural Resources on May 15, 2013. H.R. 819 would require the 

seashore’s management plan to revert back to the Interim Strategy, which was issued in 2007. In contrast, S. 486 would require 

the Secretary to undertake a public process to determine how to 

modify the current management plan. The CBO cost estimates reflect those differences. 

The CBO staff contact for this estimate is Martin von Gnechten. 

The estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis. 

REGULATORY IMPACT EVALUATION

In compliance with paragraph 11(b) of rule XXVI of the Standing 

Rules of the Senate, the Committee makes the following evaluation 

of the regulatory impact which would be incurred in carrying out 

S. 486. 

The bill is not a regulatory measure in the sense of imposing 

Government-established standards or significant economic responsibilities on private individuals and businesses. 

No personal information would be collected in administering the 

program. Therefore, there would be no impact on personal privacy. 

Little, if any, additional paperwork would result from the enactment of S. 486, as ordered reported. 


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CONGRESSIONALLY DIRECTED SPENDING

S. 486, as reported, does not contain any congressionally directed 

spending items, limited tax benefits, or limited tariff benefits as defined in rule XLIV of the Standing Rules of the Senate. 

EXECUTIVE COMMUNICATIONS

The testimony provided by the National Park Service at the April 

23, 2013, Subcommittee on National Parks hearing on S. 486 follows: 

STATEMENT OF PEGGY O’DELL, DEPUTY DIRECTOR FOR OP- ERATIONS, NATIONAL PARK SERVICE, U.S. DEPARTMENT

OF THE INTERIOR

Mr. Chairman and members of the subcommittee, thank 

you for the opportunity to appear before you today to 

present the Department of the Interior’s views on S. 486, 

a bill entitled ‘‘to authorize pedestrian and motorized vehicular access in Cape Hatteras National Seashore Recreational Area, and for other purposes.’’ 

The Department strongly opposes S. 486. This bill would 

reinstate the 2007 Interim Protected Species Management 

Strategy (Interim Strategy) governing off-road vehicle 

(ORV) use at Cape Hatteras National Seashore (Seashore). 

The Department supports allowing appropriate public 

use and access at the Seashore to the greatest extent possible, while also ensuring protection for the Seashore’s 

wildlife and providing a variety of visitor use experiences, 

minimizing conflicts among various users, and promoting 

the safety of all visitors. We strongly believe that the final 

ORV Management Plan/Environmental Impact Statement 

(EIS) and special regulation are accomplishing these objectives far better than the defunct Interim Strategy. Contrary to some reports, there is not now and never has been 

a ban on ORVs at the Seashore. The great majority of the 

beach is open to ORVs, visitation is rising, and tourist revenues are at record levels. At the same time, beach-nesting 

birds and sea turtles are finally showing much-needed improvements. 

The Seashore stretches for about 67 miles along three islands of the Outer Banks of North Carolina. It is famous 

for its soft sandy beaches, outstanding natural beauty, and 

dynamic coastal processes that create important habitats, 

including breeding sites for many species of beach-nesting 

birds, among them the federally listed threatened piping 

plover, the state-listed threatened gull-billed tern, and a 

number of species of concern including the common tern, 

least tern, black skimmer, and the American oystercatcher. Long a popular recreation destination, Cape Hatteras attracts about 2.3 million visitors a year who come 

to walk the beach, swim, sail, fish, use ORVs, and enjoy 

the ambiance of the shore. In the towns that dot the Outer 

Banks, a major tourism industry has developed to serve 

visitors and local beachgoers, including fishermen. In 2011, 

visitors to the three islands spent approximately $121 milVerDate Mar 15 2010 03:52 Sep 13, 2013 Jkt 029010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6969 E:\HR\OC\SR102.XXX SR102

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lion (an increase of $13 million from 2010), and supported 

about 1,700 jobs. 

Under the National Park Service Organic Act, the Endangered Species Act, the Migratory Bird Treaty Act, the 

Seashore’s enabling act, and National Park Service (NPS) 

regulations and policies, the NPS has an affirmative responsibility to conserve and protect wildlife, as well as the 

other resources and values of the Seashore. Executive 

Order 11644 (1972), amended by Executive Order 11989 

(1977), requires the NPS to issue regulations to designate 

specific trails and areas for ORV use based upon resource 

protection, visitor safety, and minimization of conflicts 

among uses of agency lands. 

The special regulation that went into effect on February 

15, 2012, brings the Seashore into compliance with applicable laws, policies, and Executive Orders after many 

years of noncompliance. In addition to resource impacts, 

the approved plan addresses past inconsistent management of ORV use, user conflicts, and safety concerns in a 

comprehensive and consistent manner. 

The Interim Strategy was never intended to be in place 

over the long-term. When it was developed, the Seashore 

had no consistent approach to species protection and no 

ORV management plan or special regulation in place. 

While the Interim Strategy took an initial step toward establishing a science-based approach, key elements such as 

buffer distances for American oystercatchers and colonial 

waterbirds, and the lack of night driving restrictions during sea turtle nesting season, were inconsistent with the 

best available science. The 2006 U.S. Fish and Wildlife 

Service (USFWS) biological opinion for the Interim Strategy indicated that it would cause adverse effects to federally listed species, but found no jeopardy to those species 

mainly because of the limited duration of implementation 

(expected to be no later than the end of 2009). Similarly, 

the 2007 NPS Finding of No Significant Impact (FONSI) 

for the Interim Strategy indicated the action had the potential to adversely impact federally listed species and 

state-listed species of concern, but found that a more detailed analysis (an EIS) was not needed because of the limited period of time that the Interim Strategy would be implemented. 

After a lawsuit was filed against the Interim Strategy, 

a federal judge entered a Consent Decree for park management. The species-specific buffer distances and the night 

driving restrictions contained in both the Consent Decree 

and in the plan/EIS are based on scientific studies and 

peer-reviewed management guidelines such as the USFWS 

Piping Plover and Loggerhead Turtle Recovery Plans, and 

the U.S. Geological Survey (USGS) Open-File Report 

2009–1262 (also referred to as the ‘‘USGS protocols,’’) on 

the management of species of special concern at the Seashore. Buffer distances for state-listed species are based on 

relevant scientific studies recommended by the North 


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Carolina Wildlife Resources Commission, USFWS, and 

USGS. 

Under the science-based species protection measures of 

the Consent Decree, many of which are incorporated into 

the ORV management plan and special regulation, a trend 

of improving conditions for beach nesting birds and sea 

turtles has emerged. Although breeding success depends 

on a number of factors including weather, predation, habitat availability, and level of human disturbance, there has 

been a striking improvement in the condition of protected 

beach-nesting wildlife species. The Seashore has experienced a record number of piping plover pairs and fledged 

chicks, American oystercatcher fledged chicks, least tern 

nests, and improved nesting results for other species of colonial waterbirds. The number of piping plover breeding 

pairs has increased from an annual average of 3.6 pairs 

from 2000 to 2007 under the Interim Strategy to an average of 11.75 pairs between 2008 and 2011 under the Consent Decree. In 2012, the NPS documented 15 piping plover breeding pairs. The number of sea turtle nests also significantly increased, from an annual average of 77.3 from 

2000 to 2007 to an average of 129 from 2008 to 2011. In 

2012, sea turtle nesting in the Seashore climbed to an alltime high of 222. 

Although the prescribed buffers have resulted in temporary closures of some popular locations when breeding 

activity was occurring, even at the peak of the breeding 

season there have generally been many miles of open 

beach entirely unaffected by the species protection measures. Under the Consent Decree from 2007 to 2011, annual 

visitation at the Seashore continued at a level similar to 

that of 2006 to 2007. In 2012, visitation increased 17% 

from 2011, and it was a 6% increase from the average visitation between 2007 and 2011. Dare County, where the 

Seashore is located, experienced record occupancy and 

meal revenues in 2012, as reported by the Outer Banks 

Visitor Bureau, despite the impacts of Hurricane Sandy 

that closed or substantially limited traffic along North 

Carolina Highway 12 to Hatteras Island from late October 

to late December 2012. This occupancy revenue has continued to climb over the last several years as follows: 2009 

($318 million), 2012 ($330 million), 2011 ($343 million), 

2012 ($382 million through the end of November) while 

meals revenue has also increased as follows: 2009 ($185 

million), 2010 ($188 million), 2011 ($191 million), and 2012 

($201 million though the end of November). 

The final ORV management plan and regulation provide 

long-term guidance for the management of ORV use and 

the protection of affected wildlife species at the Seashore. 

The plan not only provides diverse visitor experience opportunities, manages ORV use in a manner appropriate to 

a unit of the National Park System, and provides a 

science-based approach to the conservation of protected 

wildlife species, but also adapts to changing conditions 

over the life-span of the plan. It includes a five-year periVerDate Mar 15 2010 03:52 Sep 13, 2013 Jkt 029010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6969 E:\HR\OC\SR102.XXX SR102

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odic review process that will enable the NPS to systematically evaluate the plan’s effectiveness and make any necessary changes. 

During the preparation of the environmental impact 

statement (EIS) for the management plan, the NPS evaluated the potential environmental impacts of long-term implementation of the Interim Strategy. The analysis determined that if the Interim Strategy were continued into the 

future, it would result in long-term, moderate to major adverse impacts to piping plovers, American oystercatchers, 

and colonial waterbirds, as well as long-term, major adverse impacts to sea turtles. Impacts to sea turtles and 

three species of colonial waterbirds had the potential to 

rise to the level of ‘‘impairment,’’ which would violate the 

National Park Service Organic Act. 

Moreover, if the Interim Strategy were to be reinstated, 

it could well be counterproductive to visitor access. Under 

the Interim Strategy, popular destinations such as Cape 

Point and the inlet spits still experienced resource protection closures. Several of the beach-nesting bird species at 

the Seashore may renest several times during the same 

season if eggs or very young chicks are lost, which is more 

likely when there is a higher level of human disturbance 

in proximity to nests and chicks. Under the Consent Decree, with its science-based buffers, there has been a noticeable reduction in the number of these renesting attempts for piping plovers and American oystercatchers, 

which means the duration of closures is typically shorter. 

Because the Interim Strategy allows smaller buffers and 

more disturbance of nests and chicks at these key sites, it 

increases the likelihood that birds will renest one or more 

time at those sites, and so even though the closures may 

seem smaller, they may be in place for a longer time than 

under the ORV plan or Consent Decree. This is even more 

likely to be the case now, because the number of nesting 

birds has increased significantly since 2007. 

The Seashore has taken steps to enhance access in areas 

favored by beach fishermen. Specifically, a bypass below 

Ramp 44 allows ORV access to the eastern side of Cape 

Point and areas not closed during bird breeding season in 

the event of access blockage on the beach proper, whether 

from weather and tide events or resource closures. At Hatteras Inlet, at the end of Hatteras Island, a trail has been 

created and maintained to allow ORV access and the ability to park closer to what have traditionally been preferred 

fishing areas. In the proximity of Ramp 4, a pedestrian access trail adjacent to the Oregon Inlet Fishing Center to 

provide access for fishing in the ocean for those visitors 

without ORVs. Also, as a mitigation measure with the 

building of the new Bonner Bridge project, a new access 

ramp will be installed at approximately mile 2.5 that will 

expedite access to the northern end of the park. The Seashore is also in the final stages of completing an Environmental Assessment titled ‘‘Proposal to Construct New Development that Facilitates Public Access’’ which may inVerDate Mar 15 2010 03:52 Sep 13, 2013 Jkt 029010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6969 E:\HR\OC\SR102.XXX SR102

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clude additional access points to areas that are traditionally closed off due to resource closure; these will enhance 

the fishing/beach driving opportunities. 

In addition to reinstating the Interim Strategy, S. 486 

provides authority for additional restrictions only for species listed as ‘‘endangered’’ under the Endangered Species 

Act of 1973, and only for the shortest possible time and on 

the smallest possible portions of the Seashore. This would 

conflict with numerous other laws and mandates including 

the National Park Service Organic Act, the Endangered 

Species Act, the Migratory Bird Treaty Act, the Seashore’s 

enabling act, the aforementioned Executive Orders, and 

NPS regulations implementing these laws, which provide 

for the protection of other migratory bird species and other 

park resources. 

S. 486 also provides that the protection of endangered 

species at Cape Hatteras shall not be greater than the restrictions in effect for that species at any other national 

seashore. Species protection measures cannot reasonably 

be compared from seashore to seashore without considering the specific circumstances at each site and the context provided by the number and variety of protected species involved, the levels of ORV use, and the underlying restrictions provided by the respective ORV management 

plans and special regulations. Even though Cape Hatteras 

has a wider variety of beach nesting wildlife species than 

Cape Cod or Assateague, for example, its plan actually allows for a much higher level of ORV use on larger portions 

of the Seashore. It would be neither reasonable nor biologically sound for Cape Hatteras to use less protective 

measures if they were designed for a location where the 

level of ORV use is much lower to begin with. Nor does it 

appear that such an arbitrary approach could possibly 

comply with the ‘‘peer-reviewed science’’ requirement imposed elsewhere in the bill. The Cape Hatteras plan was 

specifically designed to be effective for the circumstances 

at Cape Hatteras. The bill would require, to the maximum 

extent possible, that pedestrian and vehicle access corridors be provided around closures implemented to protect 

wildlife nesting areas. This concept was thoroughly considered during the preparation of the plan and EIS. The plan 

already allows for such access corridors when not in conflict with species protection measures. For example, under 

the current regulation, the Seashore works with the communities and has the ability to allow access around a turtle nest when the alternative route is between the nest 

and dunes but does not cause impairment to the existing 

dunes/vegetation. 

Shorebird nesting areas are often close to the shoreline 

because of the Seashore’s typically narrow beaches. A concentration of nests occur near the inlets and Cape Point, 

and access corridors cannot always be allowed without defeating the fundamental purpose of such closures: protecting wildlife. Several species of shorebirds that nest at 

the Seashore have highly mobile chicks, which can move 


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considerable distances from nests to foraging sites. Inadequate resource closures in the past have resulted in documented cases of human-caused loss or abandonment of 

nests and chick fatalities. Corridors that cut through a resource closure area would essentially undermine the function of the closure and render it compromised or even useless. 

Finally, the final ORV management plan/EIS and special 

regulation are the products of an intensive five-year long 

planning process that included a high level of public participation through both the National Environmental Policy 

Act (NEPA) process and negotiated rulemaking, including 

four rounds of public comment opportunities. The Negotiated Rulemaking Advisory Committee’s function was to 

assist directly in the development of special regulations for 

management of ORVs and met from 2007 to 2009. Although the committee did not reach consensus on a proposed regulation, it provided a valuable forum for the discussion of ORV management and generated useful information for the NPS. The NPS received more than 15,000 

individual comments on the draft plan/EIS and more than 

21,000 individual comments on the proposed special regulation. In completing the final ORV management plan/EIS 

and special regulation, the NPS considered all comments, 

weighed competing interests and ensured compliance with 

all applicable laws. 

Currently, the ORV management plan/EIS and special 

regulation are the subject of a complaint that was filed by 

a coalition of ORV organizations with the US District 

Court in the District of Columbia on February 9, 2012. The 

Memorandum of Order to transfer the complaint to the US 

District Court of North Carolina was issued on December 

23, 2012. 

Mr. Chairman, that concludes my testimony. I would be 

glad to answer any questions that you or other members 

of the subcommittee may have. 

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee notes that no changes in existing law are made by S. 486, as ordered reported. 

Æ 


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