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Editor's Blog by Irene Nolan

  • Not much good news is coming our way from Raleigh

    Since Republicans took total control of North Carolina in 2012, not much of the news coming our way from Raleigh has been good news.

    The memories of those powerless days when Democrats controlled all in Raleigh have not been forgotten -- especially the memory of a powerful politician from Dare County, Marc Basnight.

    Basnight, the leader of the state Senate, pretty much got what he wanted and he wanted to improve the plight of Dare and Hyde counties and other areas of rural eastern North Carolina.

    Some observers say that the Republicans are exacting revenge by undoing Basnight's legacy.  

    That assessment may or may not be on the mark.  But one thing is very clear -- the power in the capital has shifted,  and rural North Carolina certainly appears to be getting the short end of the stick.

    Funding to some projects -- viewed as Basnight "pet projects" -- has been reduced or totally cut off.  Just look at the North Carolina Center for the Advancement of Teaching, which the General Assembly has tried to close down several times and may still, or the state-owned Jennette's Pier in Nags Head, which the General Assembly wants to sell.

    There are other examples, but today's blog is about  two particular changes brought to us courtesy of our lawmakers in Raleigh -- the new transportation planning law, which may be the most diabolical piece of legislation they have passed, and the law that slaps a sales tax on the bills of Cape Hatteras Electric Cooperative members.


    The Island Free Press published a story on Monday, June 30, that was only lightly read and got no comments from readers, but it was one of the most significant articles that we have published in a long time.

    It wasn't scintillating reading and it was overtaken and overshadowed by the threat and then arrival of Hurricane Arthur that week.

    But you need to go back and read this article on the Local News Page under the headline, "DOT's new plan for funding projects makes it hard for rural areas to compete."

    The "makes it hard" wording is an understatement.  It has not escaped savvy onlookers that the new "plan" makes it next to impossible for rural areas to compete.

    The article was painstakingly reported by Catherine Kozak.  Both she and I have done our fair share of reporting on transportation planning over the years.  It tends to be not only dull, but sometimes very complicated.  However, neither one of us, even with our experience, could make heads or tails of the new law when we first started looking at it.

    How, we thought, is the general public supposed to understand the plan and intelligently comment on it?

    You might conclude that the members of the General Assembly who passed the law didn't really care if the law was incomprehensible and probably prefer it that way.

    The new law, the Strategic Transportation Investments Act, was passed by the legislature in 2013, and creates a new way to allocate funding for projects -- everything from roads to bridges and bike trails to ferries -- by how they score on complicated formulas.  

    The state says, with a straight face, that the new process, called the Mobility Formula, will “maximize North Carolina’s existing transportation funding to enhance the state’s infrastructure and support economic growth, job creation and high quality of life.”

    That might be true if you live in DOT's Division Five, which includes the state capital and other populous cities. But out here in Division One, which includes both Dare and Hyde counties, we can just basically forget about new road projects.

    This is how Kozak begins her article:

    "Citizens who want to understand what projects the state Department of Transportation is proposing to fund or not fund under its new Strategic Mobility Formula might need to first hone their mastery of puzzles and mazes.    

    What residents of northeastern North Carolina may miss in NCDOT’s unfathomable document posted online for review is that most – if not all - of the proposed transportation projects in Highway Division One that includes Dare, Hyde, and Currituck counties,  rank low in priority – including the Mid-Currituck Bridge, the Alligator River bridge and widening US. 64 - and that the division’s guaranteed dollars are a sliver of its prior funding.

     In fact, as the plan looks now, few major projects in the Northeast are likely to be built any time in the near future. Nearly 50 percent of total state transportation funds are slated for Division Five, which includes Wake County. "

    Other tidbits from the article:

    • Priorities in the Mobility Formula focus mostly on factors such as year-round traffic congestion and population density.
    • Every mode of transportation, from rail to bicycle to ferry to road to bridge, is parsed by rankings, criteria, values, regions, divisions, modes, U.S. highways, state highways, strategic military interests, toll routes, municipal and rural planning organizations, statewide impacts and shared resources.
    • In previous budgets, according to DOT, Division One received $85 million to $120 million per year.  Under the new prioritizing system, the division is guaranteed only $27 million.
    • Some projects that scored high in the division, such as the proposed Mid-Currituck Bridge, did not qualify in the bigger picture. “It wasn’t competitive statewide,” said a District One planning engineer. “Until the law is revised, that project is not meeting the statewide criteria.”
    • No projects in Division One qualified to be in the statewide category, which is 100 percent data-driven and includes interstate highways, routes in the national highway system, toll roads and highways that are vital to national defense.  
    • Ferries also must be prioritized and funded out of the Division's funds. Replacement ferries, which cost about $12 million, used to be paid for by funds voted on separately from the state transportation plan.

    Urban areas choked by traffic congestion need and deserve relief, but lawmakers cannot achieve that totally by sacrificing the needs of rural areas of the state.

    There must be some semblance of fairness or parity.

    And the new Strategic Transportation Investments Act does not achieve that. Or should I say it does not seem to achieve that based on what we can understand about its convoluted and ridiculous formulas, rankings, priorities, and on and on.

    You can weigh in on part of this new process -- the distribution of local input points -- through July 23.  Go to http://www.ncdot.gov/strategictransportationinvestments/PublicMeetings.html.


    Thanks also to the General Assembly, Cape Hatteras Electric Cooperative members will begin paying 7 percent sales tax on their power bills this month.

    Lawmakers passed legislation in 2013 that took away the cooperative's long-standing exemption from state sales tax.

    Despite the best efforts of lawmakers that represent Dare County -- Republican Sen. Bill Cook and Democratic Rep. Paul Tine -- the legislature refused to repeal the bill. The best Cook and Tine could work out was a "compromise" that will allow the 7 percent to be "phased in ."

    Beginning July 1, CHEC members will pay a 3.5 percent sales tax on bills.  On July 1, 2015, the rate will become 7 percent.

    The exemption from sales tax for CHEC dates back almost 70 years.

    CHEC was incorporated on March 30, 1945 as a public agency and an electric membership corporation under North Carolina law to provide electricity on a non-profit basis to Hatteras Island consumers.

    During the 1930s and '40s, many member-owned cooperatives were formed to bring electricity to rural areas that investor-owned, or for-profit, companies were not interested in serving because of the low-density populations that were spread out over large areas. Providing electricity to these areas was and still is expensive.

    However, as some of these rural areas grew, investor-owned utilities became more interested and started trying to cherry-pick the most profitable parts of an electric cooperative's territory.

    Territorial disputes arose, and in 1965, the state asked cooperatives and investor-owned utilities to work out a compromise.

    The compromise between the two groups involved the assignment of territories to each and the loss of the tax-favored public agency status for all EMCs except for the ones that served Hatteras and Ocracoke islands.

    Eventually, Ocracoke's electric membership cooperative became part of Tideland Electric Membership Cooperative, so Hatteras became the only EMC with a sales tax exemption.

    In 2000, the state Department of Revenue decided that CHEC should be paying sales and franchise taxes.

    CHEC filed a lawsuit against the Department of Revenue but paid the taxes under protest. In 2009, CHEC won its case in Dare County Superior Court.  The Department of Revenue appealed and the appeals court upheld the position of the lower court.

    After a 10-year battle, DOT had to refund more than $3.6 million in sales tax and $3.7 million in franchise tax, plus interest, to CHEC members.

    Through the 10 years of legal wrangling and in the two years afterward, no attempt was made to change the law that exempted CHEC from paying the taxes.

    However, when the 2013 legislature convened, a bill was introduced to change the law and the bill passed.
    Now excuse me if I am cynical, but I don't believe that some lawmakers were smart enough to comb through the budget and revenues and figure out that the state could pick up a quick $1 million or so by changing CHEC's tax-exempt status.

    It's much more likely that some person or persons put the bug in the ear of some lawmaker or lawmakers -- perhaps someone disgruntled about the outcome of the lawsuit or just unhappy that CHEC was being treated differently.

    In the courts and in the General Assembly, CHEC argued the good reasons it should be exempted:

    • CHEMC serves only Hatteras Island where there is no room for adding additional customers (a national park, the sound and the ocean surround CHEMC service territory).
    • CHEMC gets no benefit from the service territory protection law that benefits all other electric co-ops because no other electric utility will service Hatteras Island.
    • CHEMC has higher distribution costs because of the geographic realities of Hatteras Island. CHEMC’s key transmission delivery point is on the north side of Bonner Bridge and runs 15 miles before reaching the first community on the island.
    • CHEMC experiences higher costs to serve members because of the harsh environment on Hatteras Island, including the exposure to storms and flooding.

    Those were good reasons when electric membership cooperatives were first given tax-exempt status 70 years ago, were good reasons when CHEC had to take its case to court, and they are still good reasons today.

    And I hardly think the estimated $1 million in income will even begin to solve all of the budget problems that the state finds itself in after slashing taxes for so many last year.

  • Evacuation and re-entry woes

    In the 23 years that I've been reporting news on Hatteras Island, there has never been a hurricane evacuation or re-entry that was not controversial.

    And Hurricane Arthur was not the exception.

    The storm that became Arthur started as a low pressure area off the Florida coast the week before it made landfall south of the Outer Banks about 11:15 p.m. on Thursday, July 3.  

    As early as the last week of June, the storm had the attention of forecasters, emergency managers, and residents along the southeast U.S. coast.  Any disturbance in that area -- so close to the coast -- is reason for concern. It can quickly strengthen and quickly reach the coast.

    By Monday, June 30, Arthur was clearly a concern for the Outer Banks. The National Hurricane Center gave the low an 80 percent chance of becoming a named storm and said an approaching cold front and dip in the Jet Stream would lift it up the southeast coast.

    There was still hope, however, that the storm would move by us offshore, perhaps well offshore.

    By mid-week that hope was fading as forecast models honed in on Cape Hatteras. The storm was now forecast to become a minimal hurricane.

    An evacuation was looking more likely since the week of July 4 is the busiest and most crowded of the summer on the Outer Banks.

    Ocracoke finally ordered an evacuation for residents and visitors about mid-day Wednesday. And to the surprise of many, it was a voluntary evacuation, effective at 2 p.m. that day.

    Later on Wednesday afternoon Dare County ordered a mandatory evacuation for residents and visitors, beginning at 5 a.m. Thursday morning.

    By late afternoon and evening on Thursday, the winds were picking up, and they were really gusting by dark.

    After making landfall at Cape Lookout, Arthur came up the Pamlico Sound in the early morning hours of July 4 and crossed back over the barrier islands into the Atlantic somewhere around Oregon Inlet.

    The peak wind speed at Cape Lookout was 101 mph, and winds on Hatteras gusted up to and over 90 mph in some areas.  Storm surge was minimal on southern Hatteras and Ocracoke, but up to 7.3 feet in the northern villages of Rodanthe, Waves, and Salvo.  The tri-villages sustained serious damage from both wind and surge from the Pamlico Sound.

    About 2,200 customers lost power on Hatteras, but most did not.  By the end of the day on Friday, only scattered outages remained.

    Highway 12 was impassable after the storm, but the N.C. Department of Transportation did an impressive job of removing sand and water, repairing broken and buckled asphalt, and checking the safety of the Bonner Bridge.

    By Saturday morning, the highway was passable and Dare opened up Hatteras Island to residents and essential personnel. At 4 p.m., visitors were allowed to return to Hatteras.

    Ocracoke, on the other hand, closed entry to the island.  More than 40 damaged power poles cut power on the entire island.

    We were all fortunate that there was not a higher storm surge all along the Outer Banks and that surge and erosion on the oceanside was minimal. Most on southern Hatteras were spared damage from wind or tide.

    On southern Hatteras and Ocracoke, some houses were missing shingles, a few windows were broken and screens were blown out, and downed trees and limbs fell into yards and roads and Highway 12.

    The tri-villages were a different story with more serious wind damage and widespread damage from a storm surge that was measured by the National Weather Service at up to 7.3 feet in Rodanthe and 5.5 feet in Salvo.

    Though Highway 12 was impassable, there were not even minor breaches of the pavement.  

    The July 4 holiday and much of the weekend was devoted to storm cleanup, which continues even today in the tri-villages.

    In the week since the storm, there has been plenty of discussion about evacuation and re-entry.

    As is usually the case, not all folks are happy with how they were handled and some of them are really unhappy.


    Public safety issues aside, an evacuation during the busiest week of the tourist season is serious business for Hatteras and Ocracoke.

    I haven't heard many complaints about how the evacuation was handled on Hatteras Island, although even Wednesday morning it was not apparent that the county would evacuate.

    The county held onto hope during the day that there might be a change in the forecasts, but by afternoon it was abundantly clear that the hurricane was taking aim at Cape Hatteras.

    The Dare County Control Group met at 5:30 and issued a mandatory evacuation order for residents and visitors on Hatteras Island beginning at 5 a.m. Thursday.  After 5 a.m. Thursday, no access was allowed to Hatteras Island.

    Visitors had all night Wednesday and much of Thursday to make plans, pack up, and hit the road.  Some, but not many, residents left.

    There were probably some businesses that were not in favor of the mandatory evacuation, but they've had nothing to say publicly so far. 

    On Ocracoke, it was a different story.  

    Many folks were surprised and perplexed by the voluntary evacuation.

    Hyde County's auxiliary control group on Ocracoke met Thursday morning for the first time as the island was facing a possible direct hit that night.

    It was obvious from the comments at the meeting that some members of the group were not happy that a decision on evacuation had been made without consulting them.

    The decision was made by the Hyde County Commissioners in a phone call on Wednesday morning.  Ocracoke commissioner John Fletcher favored the voluntary evacuation.

    On Thursday, there were an estimated 9,000 visitors on the island. No one knows how many eventually left and how many stayed.

    As it turned out, winds howled, but storm surge was minimal and there was little structural damage.

    However, ocean overwash made the north end of the island impassable and more than 40 damaged power poles left Ocracoke without power for close to 48 hours.

    By Monday, even the commissioners weren't sure they had made the right decision, indicating at a regularly scheduled meeting that a voluntary evacuation might not have been the best action.

    “We need to look into the protocol,” noted Barry Swindell, board chairman, toward the end of the two-hour meeting. “We need to include the Ocracoke Control Group. Some things didn’t exactly go the way we thought.”

    “There were some decisions made, and there were some good decisions, but as time went on turned out not to be so good,” noted commissioner Earl Pugh Jr.  “We need to get more people involved earlier. It was the board’s decision (to do a voluntary evacuation). We can learn and make better decisions.”


    Unlike evacuation, re-entry stirred little controversy on Ocracoke.

    With no power, it was clear that visitors should not come to the island.  Those who had stayed began leaving when ferry service was restored on Friday afternoon, July 4.

    Power was restored at 9:30 Saturday night, July 5, and at 10:30, the county began allowing visitors back onto the island.

    On the other hand, Dare County's decision to allow residents and essential personnel back at noon on Saturday and to open the island to visitors at 4 p.m. has brought the usual complaints and second-guessing.

    Non-resident property owners who wanted to attend to their storm damaged houses or even just clean up the yard debris were unhappy that they were not allowed on the island at noon.

    Off-island property owner Brenda Shade sent this e-mail to the county commissioners and copied the Island Free Press:

    "You let hundreds of anxious, angry deserving homeowners wait for NO reason at Oregon Inlet.  Safety is your issue, right?  The realty company has 525 homes to inspect and you should know that they do not have the personnel to accomplish inspections in the few hours you give.  Do you not realize that allowing the non-resident back on the island frees them up to do their job better?  We spent four hours repairing screens, chairs, water damage, sand removable from our property, achieving the safety you say you want and you were not willing to give us the precious time we needed.  Do you ever have concern for us?  If indeed you do not and you cannot explain to me why I cannot come back to the island, then come forward and say, so that I may continue to seek other avenues to help me with my rights."

    The 4 p.m. re-entry for visitors time was not officially announced until 3:30, though word started getting out much earlier. Shortly after noon, I was told that someone had posted on Facebook that visitors could return at 4.

    Dare County manager Bobby Outten said early Saturday afternoon that no announcement about visitor re-entry had been made because the county didn't want visitors to line up at the checkpoint north of the Bonner Bridge.

    However, they lined up anyway.  By the time officials started letting them through about 20 minutes before 4, vehicles were backed up to at least Whalebone Junction. And one person reported that traffic was backed up to Outer Banks Hospital.

    Several new arrivals said it took them more than 4 1/2 hours to get from Whalebone Junction to Frisco or Hatteras.

    Some found out when they arrived that their rental houses were not ready yet.  At least one property management company did get all guests settled in their rentals until midnight.

    Most visitors didn't seem to complain too much -- they were just happy to have gotten on the island Saturday.

    The re-entry was the most controversial in the business community, which was split between those who wanted visitors back as early as Saturday morning and others who favored Sunday -- or even Monday or Tuesday.

    Most property management companies opposed the Saturday re-entry.

    Many employees do not live on Hatteras and also had to leave the island on Thursday.  They weren't allowed back until noon on Saturday, just four hours before visitors were let onto the island.

    The companies were responsible with what employees they could muster for closing up hundreds of rental houses Thursday and Thursday night until the winds started gusting.  Many managers and employees who live here were up most of the night during the storm.

    Early Saturday morning, they had to start assessing damage at houses, open them up and clean them for the new arrivals on Saturday.

    The tidal flooding was so bad in the tri-villages, which had the most damage, that employees couldn't even get there from southern Hatteras in the morning.

    Rodanthe, Waves, and Salvo were a stinking, smelly mess of tide in yards and in the road, water damage, and damage from wind.  Water, muck, and debris from the sound filled swimming pools and ground-level hot tubs. Some rental houses needed serious repairs and cleaning.  There was no power on some streets that had been flooded.

    One company worked until midnight in the tri-villages to get guests into houses or relocate them.

    Most property managers wanted visitor entry delayed. Some wanted a delay until Sunday and others even later --until even Monday or Tuesday -- said Allen Burrus who represents Hatteras on the county Board of Commissioners.

    One property manager said she thought letting visitors into the tri-villages raised a public safety issue.

    "We weren't frivolously holding out guests while we washed windows," she said.  "We were talking basic services.

    "Something's changed (about re-entry)," she continued. "It's not about public safety and services anymore.  It's political."

    Meanwhile, businesses, especially from Avon south where there had been only minor storm cleanup, were eager to re-open on Saturday.

    These independently owned island businesses operate on very narrow profit margins and make most of their money between Memorial Day and Labor Day.

    Losing July 4 business was a blow to them, but losing the rest of the weekend was even worse. They were ready to salvage what they could.

    To make the point about the importance of the July 4 week and weekend, one business owner told me that he made $30,000 in one day on July 4 last year.  He made $1,600 this year.

    Another business owner said she lost $10,000 in business during the three days of evacuation compared to the same dates last year.

    Ouch.  That hurts, and it well illustrates the position that our county officials and control group members find themselves in when they make re-entry decisions.

    Personally, I thought early Sunday would have been a more reasonable time for visitor re-entry.  However, by the time these folks reached their destinations on the island, shopkeepers would have lost the entire weekend.

    Perhaps re-entry is more political -- or at least more economic. But it's not and never has been easy.

    "When the governor announced the road was open, we had to let them (visitors) in," Allen Burrus said.

    No matter the decision, he said, "You're going to make them mad anyway."

    Warren Judge, chairman of the Dare Board of Commissioners, called re-entry "challenging."

    He said that if he had Hurricane Arthur re-entry to do all over again, he would not change anything.

    "We review after each storm," he said on Wednesday. "It gives us experience, but it does not give us a road map.  Each storm is different."

  • Thoughts on public access: It's about more than ORVs

    It's been an interesting week since U.S. District Court Judge Terrence Boyle ruled that natural resources trump beach driving -- and apparently recreation -- here at the Cape Hatteras National Seashore.

    The judge issued his order on June 20 in a lawsuit filed by the Cape Hatteras Access Preservation  Alliance (CHAPA) against the Department of Interior and the National Park Service to overturn the park's 2012 off-road vehicle plan and final rule for the seashore. Two environmental groups, represented by the Southern Environmental Law Center, were defendant-intervenors in the litigation.

    Boyle ruled in favor of the federal defendants and the defendant-intervenors on every objection that CHAPA raised in the lawsuit about the plan -- from whether it met the requirements of the seashore's Enabling Legislation and the National Environmental Policy Act to the science upon which it is based to whether the economic impact studies were adequate.

    It's clear that the plan and final rule are here to stay -- unless there is a successful appeal of Boyle's ruling or Congress finally passes legislation to order the seashore to revisit parts of the plan.

    CHAPA has not decided whether to appeal. And a bill to overturn the plan has stalled in Congress. It has passed in the House of Representatives -- twice.  But an amended version of the bill, favorably reported out of committee earlier this year, has never reached the Senate floor.

    Many folks have thought all along -- and maybe still think -- that the lawsuits and the fight are about beach driving versus resource protection. Thus, they think, it matters only to those who want to drive vehicles on the beach.

    However, access groups, such as the Outer Banks Preservation Association and the North Carolina Beach Buggy Association, have argued all along that this is about more than just ORVs and access for beach drivers.

    It's all about more reasonable public access  at the seashore than the final plan and rule allow -- for beach drivers and for pedestrians.

    And that has been made clear by the week's events.

    The day after Boyle's order was issued, a least tern established a nest on the village boundary in north Avon -- choosing that site over a pre-nesting area just to the north of the nest.

    The discovery of the nest put in motion a series of steps by the Park Service that has now resulted in the closure of more than 200 meters -- longer than two football fields -- of beach in front of houses on the north Avon oceanfront.

    Folks who rented expensive oceanfront houses for their vacations for the easy beach access had a rude awakening last Sunday morning when the resource closure was set up.  

    It was reduced by half by Wednesday and then tripled  today when the seashore's biologists noted tern breeding activity -- scrapes in the sand -- on the Avon beach south of the nest closure. The new closures have reduced the easy access for many more residents and visitors going into this July 4 week.

    "This has never really been about beach driving," Beth Midgett, a rental manager for Midgett Realty, said this week. "It's about access, and it's just out of balance."

    One element of the plan that CHAPA objected to in the lawsuit was the extensive and over-reaching buffer distances for breeding birds, nests, and unfledged chicks, and especially for those birds not federally listed as endangered.

    The least tern is not listed as endangered or threatened by the federal government.  It is listed by the state as a "species of special concern" and the state has said it never intended that these birds be protected by such expansive buffers.

    The bird is very adaptable and happy to nest in any number of locations, including the roof of the Outer Banks Mall in Nags Head.

    However, protecting the terns on the Avon beach has reduced access for many folks who probably don't even own ORVs.

    "The resource closure in front of the north end of Avon village ...is a perfect example of the extent the new rule affects the lives of residents and visitors at Cape Hatteras National Seashore Recreational Area," said Outer Banks Preservation Association board member David Scarborough. "For the first time in memory, beaches were closed to pedestrians in front of houses.

    He added, "The DOI, NPS and environmental groups led the public to believe that the purpose of the ORV rule was to bring CHSNRA into compliance with two executive orders from the 1970s.  In fact, the purpose was to institute far-reaching restrictions on public access by using ORVs as the scapegoat."

    Scarborough also notes that, ironically, the two federally-listed species -- sea turtles and piping plovers -- are responsible for many fewer miles of beach closures than are such state species of special concern, such as the least tern.

    Under the plan, the Park Service will revisit the final rule every five years -- with public comment.  

    That first opportunity is fewer than three years away, and it would be really nice to think we could get relief from over-reaching buffers then.


    This week's blog was going to be more about Judge Boyle's opinion in the CHAPA lawsuit and the reaction to it until the events in north Avon intervened.

    And, at the very least, I want to share with readers the reaction of some of the top players.

    SELC and its clients, Defenders of Wildlife and the National Parks Conservation Association, were quick to issue a news release last Friday afternoon.

    Of course, they are as pleased as can be.

    “The Park Service’s plan is based on the best available science.  Under it, Hatteras Island is enjoying record-setting tourism proceeds and wildlife breeding success," said Julie Youngman, senior attorney at the Southern
    Environmental Law Center.  “The plan has created a win-win situation for all Seashore visitors. We’re pleased the court ruled that the Park Service conducted a thorough review and complied with all applicable federal laws in adopting the plan.”

    “It’s just common sense to balance beach driving and wildlife protection, and it’s working: sea turtle nest numbers have increased and tourism is thriving,” said Jason Rylander, senior attorney at Defenders of Wildlife. “Because the court made the right decision today, people and wildlife alike will continue to benefit from the Park Service’s sensible management plan.”

    “It is a great day for birds and sea turtles that depend on the beaches of Cape Hatteras National Seashore,” said Walker Golder of Audubon North Carolina. “The recovery of sea turtles and birds has been well underway since the Park Service adopted a responsible management plan. Today’s decision will let the recovery
    continue for the benefit of both wildlife and people."

    The decision also gave Rylander the chance to use one of his favorite phrases and repeat one of his favorite untruths.

    "There used to be no permits. There was nothing, no regulation at all," he told a Washington-based publication. "It was basically the Wild West."

    The environmentalists love that "Wild West" thing.  And there was regulation before either the consent decree or final rule.

    CHAPA responded this week.

    CHAPA is disappointed in the June 20, 2014 ruling issued by the U.S. District Court in the CHAPA versus The Department of the Interior and the National Park Service complaint," said OBPA board member David Scarborough. " We believe our case was strong and was well presented.  We are continuing to consult with our attorneys and have made no decisions on next steps from a legal standpoint.

    "CHAPA will continue the efforts to restore public access to the beaches within the CHNSRA in a manner that achieves a proper balance between recreational access and resource protection," he added.  "Senate Bill 486 sponsored by Senator Burr, co-sponsored by Senator Hagan and unanimously passed by the Senate Energy and Natural Resources Committee remains the best solution to the access problem and CHAPA will continue to push for its passage in the current Congress."


    Click here to read the entire news release from the environmental groups.

    Click here to read the entire response from CHAPA.

  • Buxton beach nourishment is moving -- but not quickly enough for some

    Christie Roberson of Buxton spoke to the Dare County Board of Commissioners during the public comment period at the meeting earlier this week.

    "It is no longer okay," she said, "that we are not in active pursuit of getting sand on the beach in Buxton."

    She noted that businesses and homeowners in north Buxton have spent "millions of dollars stabilizing our home fronts."

    "Time is of the essence," she told the board members.

    There is no question that the north Buxton beaches are severely eroding and that the ocean is threatening both private property and Highway 12.

    As Roberson noted, on high tides there is barely any beach in front of some of the motels and homes and visitors are sitting on top of sandbags.  Sand has been pushed up into a makeshift dune time and time again after storms.

    However, it is not true that the Dare County is "not in active pursuit" of beach nourishment in Buxton.

    Nourishment on Hatteras Island, especially at north Rodanthe and north Buxton, has been on the commissioners' radar for several years now.

    In the spring of 2013, the county approved a contract with Coastal Science and Engineering of Columbia, S.C., to do a feasibility study on nourishment at the two sites.

    The study estimated the cost of nourishment in Buxton at $19.85 to $26.7 million.

    Last summer, the board raised the occupancy tax by 1 percent.  The increase is earmarked to pay for nourishment of county beaches.

    And nourishment was on the mind of board chairman Warren Judge even before Roberson spoke at this week's meeting.

    Earlier that day, he and county manager Bobby Outten received a letter from Stan Austin, Southeast regional director for the National Park Service.

    Outten and Judge had met with Austin and Outer Banks Group superintendent Barclay Trimble on June 5 to discuss beach nourishment, specifically in Buxton.

    Outten explained after the board meeting that the conversation was specifically about Buxton because the county assumes that the N.C. Department of Transportation's nourishment in north Rodanthe, which may finally get done this year, and its long-term bridging of the hotspot will take care of the overwash in that area.

    Before the county can nourish any Hatteras Island beaches, it has to jump through many hoops and get any number of permits.  But the big obstacle to future nourishment could be the Park Service, which owns the seashore's beaches, including beaches on Hatteras and Ocracoke.  The Park Service generally doesn't like beach nourishment.

    In his letter to Outten and Judge, Austin confirmed that "Beach nourishment for the purpose of protecting property is generally not allowed" by the National Park Service policies.

    The policies, he notes, "require the preservation of natural processes, including erosion, overwash, deposition, inlet formation, and shoreline migration."

    Where processes are natural, he explains, beach nourishment would require a waiver from the policies.

    "However," he writes, "where natural processes have been altered by human activities or structures, the Policies direct the National Park Service to investigate alternatives for mitigating the effects of those activities or structures and for restoring natural conditions."

    He says that the long history of maintaining Highway 12 -- pushing overwashed sand back up into dunes -- has "most likely altered natural processes" along the seashore.

    "Therefore," he concludes, "consistent with the Policies, we are open to engaging with Dare County to evaluate whether beach nourishment to mitigate the effects of these activities is appropriate at this particular location"

    That's all on the first page of the three-page letter summing up the meeting from Austin's point of view.  It's a promising start.

    However, the next two pages spell out in great detail all that must be done to "analyze the potential effects on park resources" and "ultimately decide whether a special use permit (required for all projects that take place on NPS land) would be issued."

    At the top of the list is an Environmental Assessment (EA) or Environmental Impact Statement (EIS) to ensure compliance with the National Environmental Policy Act and the National Historic Preservation Act.

    The Park Service would also require such things as a memorandum of agreement outlining specific responsibilities of the parties and boundary surveys.

    And EA or an EIS is both costly and time consuming.  It doesn't get done overnight.  It can easily take a year or two to complete.

    The Austin letter gets pretty dense in places with its share of bureaucratic double-speak, so the commissioners asked Outten to respond to clarify some points and ask some questions to get more definitive guidance from the Park Service.

    One question that the county wants answered is what the "shelf life" of the EIS is.  Can it be completed and put on hold until everything is in place or be used for nourishment down the road at other sites -- the "canal zone" on Pea Island, north Rodanthe, the site of Isabel Inlet in 2003 north of Hatteras village?

    In wrapping up his letter, Austin says, "While our earlier conversation and this follow-up letter do not constitute approval for a beach nourishment project, they do express our willingness to work with Dare County to evaluate and determine if the project could be permitted."

    "They seem to be saying," says Outten, "that if we can meet the environmental regulations, NPS will allow us to nourish the beaches."

    At the conclusion of this week's board meeting, Judge went back to Roberson's public comments, asking her and other Buxton landowners to "stay tuned."

    The board will be diligent," he said.

    However, he also said, "It (beach nourishment) will not happen as quickly as you all want it to."

    In an interview after the meeting, Outten said that he could conceivably see Buxton nourishment happening in 2016 or 2017.

    That's definitely not what landowners there want to hear.

    However, any attempt to circumvent environmental regulations, even with the help of Congress, isn't likely to succeed.  

    And, if it did, it is likely  to draw the attention of litigious environmental groups. Any legal action could tie up nourishment projects for a long time. Look at the Bonner Bridge replacement.

    At this point, there appears to be no choice than to stay on the road that Dare County is already heading down.


    Click here to read the letter from NPS Southeast regional director Stan Austin.

    Click here to read a synopsis of the feasibility study by Coastal Science and Engineering.

    Click here to read a blog on nourishment from April 14.

  • Checking in on the bird and turtle nesting seasons

    This is the third nesting season that off-road vehicle access to the Cape Hatteras National Seashore beaches has been controlled by the Park Service's new ORV plan and final rule, which became effective in February 2012.

    The shorebird nesting season is about at the halfway point, and so far there have been no big surprises.

    The sea turtle nesting season is still young, but so far numbers are below the past two very successful nesting seasons.

    On the shorebird side, nesting numbers for piping plovers and American oystercatchers are coming in about the same as last year.

    The weekly resource management reports no longer tell us how many breeding pairs of piping plovers are on seashore beaches, which is too bad.  That's an important number that seems to show up only in the annual reports issued early in the year following the nesting season. The most recent report -- for 2013 -- was issued in mid-February of this year.

    We do know that there have been 11 piping plover nests to date on the seashore.  The most, as usual, have been in the Cape Point area, where there have been six nests.

    Also of note is the fact that there has been a nest established on the South Beach in Frisco, after the plovers were unsuccessful in that area last year.  And there are two nests on North Ocracoke after there were none last year.

    The piping plover pair returned to Ramp 43 -- after first nesting there last year.  Their first nest this season was wiped out, presumably by predators, and last we heard from the Park Service, they were still trying.

    The 11 piping plover nests in mid-June compare pretty closely with nine nests in 2013 but the number is below the 18 nests in 2012.

    However, we do know the number of nests isn't necessarily related to the number of chicks fledged or plover productivity. Plovers may try again after losing their first nest.

    By mid-June in 2012, two chicks had fledged. None were fledged by mid-June last year and none have fledged yet this year.

    American oystercatcher numbers are just about what they were last year and up from 2012.

    There are 27 pairs of birds on the seashore this year, with a reported 37 nests.  Last year, there were 28 pairs and 40 nests.  Both years are up over 2012 when 22 birds established 29 nests.

    Once again this season, there are three Wilson plover nests on South Ocracoke, the same as 2012 and 2013. In the past few years, no chicks have fledged.

    Sea turtle nesting thus far, however, is another matter.

    This week's tally of nests so far on the seashore is below last year and way below 2012.

    So far, sea turtles have laid 12 nests on the seashore -- five on Hatteras and seven on Ocracoke.

    In mid-June 2013, 24 sea turtle nests were reported -- 19 on Hatteras and five on Ocracoke.  And in mid-June 2012, a whopping 56 nests had been reported -- 43 on Hatteras and 13 on Ocracoke.

    A record number of sea turtle nests were laid on seashore beaches last year -- 254.  And a large number -- 222 nests -- were recorded in 2012.

    Environmental groups used the numbers to claim victory for the new ORV plan.  However, access advocates pointed to the fact that nesting success was up all over the southeast, not just on Hatteras, so it may have just been a good year for turtles in general.

    This year's low numbers early in the nesting season, which usually begins in late May, could mean that this will be an off year with fewer turtle nests.

    Or it could be a result of the very cold winter and the fact that water temperatures did not rise as quickly as they usually do in the spring.

    The turtles can still catch up.

    However, there is concern about turtle nesting thus far elsewhere.

    According to a story in today's Washington Times, Texas coastal wildlife officials are concerned about the low number of nests laid by the Kemp's-ridley sea turtle.

    It's late in the nesting season along the Gulf Coast for that species of sea turtle, which is endangered, and, according to officials, only two nests have been found on the upper Gulf Coast.  The total number of nests recorded along the entire Gulf Coast for Kemp's-ridleys  is  so far 92, compared to 118 last year.

    Texas officials think that the cold winter may have delayed nesting by as much as a  month and that there could still be another wave of nesting, even though the peak usually comes in mid-May to mid-June.

    We'll have to wait a while here at the seashore to see if our recorded nests start catching up with the last two years -- and if we have another record season.

    If we don't and nesting number fall, I wonder how the environmental groups will spin that?

    And we'll have to wait to see if more piping plover chicks escape predators and fledge this year than have in the past two.

    You can keep up with nesting numbers with the Park Service's weekly resource management report.   To find it on Island Free Press, click on Beach Access and Park Issues Page. In the dark blue informational bar at the top of that page, click on NPS weekly resource management report.

    Those reports are also archived.  Click on Archived and scroll down to choose a year.

    By the way, we tried to talk to the seashore's natural resource program manager about nesting numbers for birds and turtles this season.  Phone calls yesterday and today and an e-mail today were not answered.

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