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Editor's Blog by Irene Nolan

  • Buxton restoration timeline: Too ambitious or not ambitious enough?

    Property owners in north Buxton have been very vocal since Hurricane Irene two years ago about the desperate need for beach nourishment in the area.

    You could hear the pain and frustration in their voices as they asked questions at a public meeting last week to discuss the beach restoration project that is about to get started.

    They watch the nourishment about half finished at the S-curves and north Rodanthe and they wonder why those dredges can't just head south and pump some sand onto the Buxton beach while they are at it.

    The Buxton folks want nourishment and they want it now, not in 2016, which is the most optimistic estimate for completion by the consulting firm the county has hired to oversee the project.

    The northern Hatteras nourishment, a project of the U.S. Army Corps of Engineers and the North Carolina Department of Transportation, is being done to protect Highway 12 in an area that has been very frequently overwashed and closed in storms in recent years.  The road there was breached during Hurricane Irene in 2011 and almost washed away after Hurricane Sandy in 2012.

    Gov. Pat McCrory declared a state of emergency for the S-curves area in March of 2013 after yet another storm pounded the area

    Carol Dawson, who with her husband Dave owns the Cape Hatteras Motel, the northernmost building in Buxton, posted a comment on the Island Free Press article about the Tuesday public meeting.

    "Two more years!" she wrote. "There won't be anything left in Buxton. It has needed beach nourishment for decades not a few years! If the commissioners had pressed our governor to add Buxton to the emergency declaration along with Rodanthe we would be receiving the long needed sand right now!"

    Carol Dillon, who owns the Outer Banks Motel, had a stern warning for officials at last week's meeting.

    "I am angry," she told them, flat out.

    "If somehow you people don't speed up this project, we're going to lose the road," she said. "We can't wait until 2016."

    "If you are not going to speed it up, you better have a plan for (dealing with) the inlet," she warned.

    There are private houses and three large motels on the oceanfront in north Buxton that is severely eroding and at risk.

    However, the governor doesn't declare a state of emergency to protect private property.

    "No where in North Carolina has a state of emergency been declared for private property," county manager and attorney Bobby Outten said at the meeting.

    The nourishment project at the S-curves would benefit some private properties in Mirlo Beach, but it is being done to protect public infrastructure -- in this case, Highway 12. Also, the governor declared a state of emergency at the S-curves 18 months ago and the nourishment wasn't started until late July.

    And the fact of the matter is that the highway in north Buxton is nowhere near in the shape that the road was at the S-curves and Mirlo Beach before nourishment.

    Yes, an inlet opened there in the Ash Wednesday storm of 1962.  Hurricane Dennis washed out the highway between Buxton and Avon in 1999.  And even run-of-the-mill northeasters can cause overwash at the area of the motels that often puts water on the road.

    And, yes, it is at risk to see another inlet.

    But there are some, especially in Hatteras and Ocracoke villages, who would disagree that the north Buxton area is any more in need of an emergency declaration than where they live or have to travel.

    One is the area between Frisco and Hatteras village, where Hurricane Isabel cut an inlet in 2003.  On Wednesday, just after high tide as a stiff wind blew off the ocean and the beaches were pounded by the swell from Hurricane Cristobal, Highway 12 was high and dry in Buxton. However, ocean water seeping under the dunes covered one lane of the road just east of Hatteras village.

    Other areas at very serious risk are the northern end of Ocracoke, which is every bit as narrow -- if not more narrow -- than north Buxton and the "canal" area on northern Pea Island near the Bonner Bridge.

    That having been said, north Buxton is in bad shape and the oceanfront properties and those behind them are important to the county's tax base.

    It behooves the commissioners to move ahead with the nourishment in the fragile area, and most would not question their commitment to the project at this point.

    At the Aug. 18 meeting, the Board of Commissioners voted unanimously to hire Coastal Science & Engineering of Columbia, S.C., to manage the project at a cost of $1.6 million.

    However, the nourishment project is not a done deal at this point.  And the timeline in CSE's proposal to the board is very ambitious.

    The company proposes getting environmental documents completed and permitting by the federal and state government done at a record pace -- with sand being pumped onto the beach in the summer of 2016.

    The proposal also notes that if the permits cannot be obtained in time to allow nourishment in the summer of 2016, the company would wait until the summer of 2017.  Putting sand on the beach in the winter is too dangerous, the consultants said.

    The permits -- specifically a special use permit from the National Park Service -- are absolutely essential to the project.

    The Park Service owns the beaches in the Cape Hatteras National Seashore, and, generally, the Park Service frowns on beach restoration projects, preferring to let nature take its course.

    County officials met with Stan Austin, NPS southeast regional director, in early June to discuss the possibility of beach restoration in north Buxton to protect Highway 12.

    He told them at the meeting and reiterated in a letter to county manager Outten that beach nourishment for the purpose of protecting property is generally not allowed by Park Service management policies.  However, he said, that in an area where "natural processes have been altered by human activities or structures," the policies allow NPS to consider nourishment.

    Austin noted that the long history of maintaining Highway 12  has likely altered natural processes in north Buxton and that the NPS is "open to engaging" with Dare County about beach restoration.

    But, make no mistake, if the county cannot meet the environmental regulations and get the project permitted, there will be no beach nourishment.

    Outten and Austin had another exchange of letters, and last week county officials and CSE consultants met with acting seashore superintendent Kym Hall and members of her staff.

    It is only the first of what will be many meetings with park officials as CSE works on such documents as an Environmental Impact Statement.

    Outten has described all of the NPS officials -- Austin, former superintendent Barclay Trimble, and acting superintendent Hall -- as "positive and helpful" in meetings.

    And, indeed, Hall was positive as she could be in a phone interview last week without saying the Park Service would for sure issue a special-use permit.

    She said the Park Service was "supportive" of the project in the sense that it understands the importance of protecting Highway 12. And she said the NPS was "grateful" to be included in the collaborative effort to get the project permitted.

    Seashore personnel, Hall said, would work with CSE to define the effects of beach restoration on such things as wildlife, hydrology, infrastructure, and fisheries.

    There will be several opportunities along the way to permitting, she noted, for public input.

    Staff members, she added, were already at work last week to get CSE the special-use permit it needs just to have access to certain areas of the beach for such things as surveys and design work.

    "We are optimistic," Hall said carefully, "that together we will be able to save Highway 12."

    And she said the park would do everything possible to help CSE meet the goals in its timeline.

    However, it won't take much more than a hiccup in the project to throw it off schedule.

    There is so much to do, and so little time -- at least in terms of permitting for a major project by federal agencies.

    Most of us on the island are used to how long it took to get final environmental impact statements and permits on big projects such as the Bonner Bridge replacement and the seashore's Off-Road Vehicle Plan.

    But those were produced by federal employees with many other responsibilities.  It should be in the project timeline's favor that it's being managed by a company and its subcontractors whose employees are focusing only on this one project.

    Many of us never would have believed five or 10 years ago that a beach nourishment project anywhere in the seashore would get as far as it has.

    And, although nourishment won't happen soon enough for many, the project's timeline is still very, very ambitious.

    Whether it is too ambitious, remains to be seen.


    Click here to read NPS Southeast Regional Director Stan Austin's June 20, 2014 letter to Dare County manager Bobby Outten.

    Click here to read Outten's June 30 response to Austin.

    Click here to read Austin's July 31 response to Outten.

    Click here to read the Aug. 20 article in Island Free Press about the public meeting on Buxton beach restoration on Aug. 19.

    To read an blog from April 18, 2014, "Where we are on beach nourishment on Hatteras Island, go to http://islandfreepress.org/PivotBlog/?e=289#body-anchor

    To read a blog from June 20, 2014, "Buxton beach nourishment is moving, but not quickly enough for some, go to http://islandfreepress.org/PivotBlog/?e=297#body-anchor

  • Under discussion on Monday: Ferry channel in Hatteras Inlet

    Representatives of the U.S. Coast Guard, the U.S. Army Corps of Engineers, and the North Carolina Department of Transportation will announce Monday that the "alternate" route has become the "official" route for the Hatteras-Ocracoke Ferry.

    The Coast Guard made the announcement this morning in a release to the media that billed the event as a "media availability."

    The event will be on Monday, Aug. 25, at 1 p.m. at  the Graveyard of the Atlantic Museum in Hatteras village.
    Rumors about the event have been circulating among folks on Hatteras and Ocracoke for a week or so but reached a fever pitch in the past few days, and especially this morning, as people scrambled to find out what they could about the meeting.

    They were getting fairly desperate for information, any information, on whether there was really a meeting, where and when it will be, what the subject of discussion will be.

    Now, you may be wondering why there is all of this excitement and angst about the establishment of a ferry channel.

    The answer to that question is that how ferries and other boats -- the Hatteras charter and commercial fleets and private vessels-- travel across and through Hatteras Inlet is a huge economic issue.

    Historically, the boats have used a route, designated as Rollinson Channel, from Hatteras village to the end of the Hatteras spit.  There, boats could take a turn and go through Hatteras Inlet out into the ocean or continue on to the north Ocracoke ferry docks in a state-maintained channel.

    That route meant a quick 40-minute run for the ferries and a quick shot to the inlet for watermen heading out to the ocean for commercial or recreational fishing, both of which are big industries on the islands.

    In recent years, Rollinson Channel has become increasingly difficult to keep open because of shifting sands and shoaling along the route.  The shoaling increased after Hurricane Irene in 2011 and Superstorm Sandy in 2012.

    Despite continued and expensive dredging by the Army Corps, which is responsible for keeping federal channels open, the old channel has continued to fill with sand.

    The situation has been exacerbated by the rapid erosion of the south end of Hatteras Island, which has resulted in a much wider Hatteras Inlet.  As the very end -- or spit -- of Hatteras continues to erode, the sand is washed into the channel.

    At times over the past two years, Rollinson Channel has been completely impassable, and boats began using Barney Slough, which is a natural channel that doesn't need dredging. The Coast Guard then established it as an "alternate" channel for navigation in February 2013.

    Since then, the ferries have alternated between the two channels, using the old channel when they can and the new channel when they have to.  However, the Ferry Division has not run through the old channel since December 2013.

    Commercial and recreational fishermen have used Barney Slough when they've had to, but these smaller boats have mostly managed to find their way through the old channel, even though it is ridiculously narrow in places.

    At issue is how much farther boats have to travel and how much longer it takes them when they are using Barney Slough, which goes out into the Pamlico Sound and then cuts back toward north Ocracoke and Hatteras Inlet. For example, the ferry trip on this new route  is at least an hour -- 20 minutes longer than the old route.

    Longer trips result in higher fuel costs for watermen and for NCDOT's Ferry Division.  Ed Goodwin, division director, said at a  meeting on Ocracoke in May that the alternate route was costing the division an extra $500,000 a month in fuel.

    The Ferry Division is running six boats instead of four on the route, but there is no doubt that the longer trips are translating into longer waits for visitors making day trips to Ocracoke during the peak summer season.

    Longer waits may already be taking a toll on visitors willing to make the trip.  According to Tim Hass, ferry division spokesman, 37,572 vehicles and 112,204 passengers made the trip in July, down 24 percent over last July.

    Ocracoke businesses depend on day-trippers, as they are called. Rudy Austin, president of the Ocracoke Civic and Business Association, said this week that some Ocracoke businesses are reporting half the customers they normally expect in the summer.

    Longer trips also affect the islanders who have to travel north for doctor’s appointments and other errands and the vendors who supply goods and services.

    A Coast Guard spokesman said today that "nothing is going to change" with the announcement on Monday.  The Coast Guard will continue to maintain and mark the old channel.

    “We have to be realistic,” Hass, the ferry division spokesman, said this week. “Hatteras Inlet is closing up and we have to play with the cards we’ve been dealt.”

    However, watermen who have to use the old channel, Hatteras village businesses that depend on the fishing industry, and Ocracoke businesses that depend on the ferry to deliver goods, services, and customers are very anxious about the future.

    Will the ferry ever return to the shorter route?  Will fishermen continue to have the shorter trip through the old channel to get to the ocean? Will the Coast Guard really continue to mark it with aides to navigation?

    Will the Army Corps continue to dredge the channel?  And, even more importantly, will there be any funds for dredging?

    The lives and livelihoods of many islanders literally depend on the answers to those questions.

    So that explains why there was so much interest this week, and especially today, in Monday's meeting.

    There will be officials there from the state and federal agencies involved in the issue, and elected officials, such as the state's U.S. senators and representatives who control the federal purse strings have also been invited.

    Many on Hatteras and Ocracoke are very unhappy that the public was not invited -- especially those who have the most at stake.

    Chief Petty Officer Nick Cangemi, Coast Guard spokesman, said today that the agencies hope that the members of the media who attend will get the word out to the public.

    However, he did acknowledge that the event is in a public building. The museum is open to the public on Monday.

    So, while the Coast Guard is not encouraging a large crowd, they apparently will not try to keep anyone out.

    Once again, the meeting is on Monday, Aug. 25, at 1 p.m. at the Graveyard of the Atlantic Museum in Hatteras village.

    (Reporter Connie Leinbach on Ocracoke also contributed to this blog.)

  • We are not alone, Part II

    Island Free Press reader Mike Metzgar, a member of the board of directors of the North Carolina Beach Buggy Association, still quite often sends us links to articles in the media about controversies at other parks.

    I read them all and find them interesting and informative -- and especially informative in what they tell us about the National Park Service and its relationships with the communities in which parks are located.

    What the articles tell us is that we are not alone in our recent disagreements with the Park Service over such issues as regulations, science, and transparency.

    A couple years ago, I rounded up a bunch of stories that Mike had e-mailed over the past months in a blog entitled, "We are not alone."

    Mike has sent us many stories since that blog but some of those we've received from him this summer have especially caught my attention.

    So, here's "We are not alone, Part II." If you want more information, there are links to media coverage at the end of the blog.


    In June, the Cape Cod National Seashore banned kiteboarding for all areas within the seashore -- on the ocean and in the bay -- except for a quarter-mile corridor.

    Seashore officials said the ban was to protect migratory and nesting shorebirds, including the threatened piping plover, the endangered roseate tern, and the red knot, which has been proposed for listing as a threatened species.

    There, as here at the Cape Hatteras National Seashore, officials think that the big, colorful kites will be seen by the birds as a predator and will scare them off their nests or disturb their feeding.

    There have been no discussions about banning kiteboarding at Cape Hatteras.

    Kiteboarders at Cape Cod have asked to see the science behind the decision to ban the sport, but have gotten little in return.

    One kiteboarder, who is also a lawyer, asked to see the scientific research two years ago when kiteboarding was banned in the bay and received a single master's thesis in return.

    Sound familiar?

    "They keep taking and taking it all away from us and they never give anything back," said Richard Lay, a Wellfleet native in a report in the Cape Cod Times.  "We have hundreds of people coming to (the Cape) to kiteboard and they don't have anyplace to go other than the two or three beaches that are massively overcrowded."


    According to the Cape Cod Times, the park officials at Cape Cod National Seashore had a presentation for the media at the end of July to talk about piping plover nesting at the seashore.

    It seems that nesting pairs of the threatened shorebird are plummeting at the seashore, which is on track to see its lowest number of chicks fledged in 10 years.

    This year, there were only 68 nesting pairs at the seashore, compared to 84 in 2003.

    Chicks that have fledged have dropped by an even larger percentage.

    At the time of the media presentation, only 27 chicks had fledged, down from 130 a decade ago. If all the chicks still on the ground at the end of July fledge -- which is unlikely -- that will bring the total for the season go 61, just slightly more than last year's all-time low of 46.

    Predators are a major cause of chick loss at Cape Cod, as it is here at Cape Hatteras.

    The seashore has used exclosures -- cages over the nests -- to protect them in the past but stopped that practice in 2012 because officials think they may attract predators and keep the adult birds from coming and going.

    Now, they are apparently rethinking exclosures and studying them.  One-third of the nests are covered by exclosures this year, and the plovers are having greater hatching success in exclosure-covered nests.

    Also, the Cape Cod Times story notes that an agreement with the U.S. Fish and Wildlife Service that allows smaller buffers around some nests to ensure public access expires this year.  Seashore officials said they did not know if it would be renewed.

    Sure would be nice to have some less extensive buffers at Cape Hatteras, wouldn't it?

    Anyway, the number of fledged birds is dropping like a rock at Cape Cod despite the fact that it has had its current off-road vehicle management plan since 1999 and despite other beach closures and regulations, such as the kiteboarding ban.


    The National Park Service is formulating new rules and regulations at the Ozark National Scenic Riverways.

    The new General Management Plan isn't final yet, but what is being proposed is causing a cultural clash between park officials and environmental groups on one side and local residents and visitors on the other.

    Here is a passage from a story The Kansas City Star wrote about the controversy over what folks can and cannot do in the park, which was created when the federal government took land from the locals in 1964.

    "The two rivers and park, which draw 1.5 million visitors each year, were meant for recreation, critics argue. And they accuse the park service and 'Sierra Club types' of attacking their culture and ruining their fun and businesses.

    Environmental groups, on the other hand, wish the proposal would go even further to crack down on some activities.

    Park officials describe the conflict as 'resource management versus recreation.

    There’s also some environmental correctness versus rural grit, and a sense of collective good versus rugged individualism."

    It sounds very similar to what has happened here at Cape Hatteras National Seashore in the past decade or two.

    The article also notes that the new plan is coming at "a boom time for anti-government fervor -- just more Washington telling citizens what to do."

    "And President Barack Obama looms large.

    At a debate in May in front of the Shannon County Courthouse in Eminence, Mo., Lt. Gov. Peter Kinder called for the federal government to turn the park over to Missouri. The Republican railed about British tyranny, quoted the Declaration of Independence and threw in Obamacare and Benghazi."

    A lot of this "anti-Washington" fervor has also been evident here at the seashore in the past few years. Any number of people have encouraged the state of North Carolina to seize the seashore, to take it back.

    The chances of that happening are nil to nothing, but that hasn't tamped down the enthusiasm for it.

    To find out more about the clash in the Ozarks, you'll have to read the story. The link is at the end of the blog, and the article is very well written and balanced.


    Folks gathered at the Drakes Bay Oyster Co. on July 31 to say goodbye to the farming operation in Point Reyes National Seashore that was finally forced to close down by the National Park Service.

    In 2012, then Secretary of Interior Ken Salazar refused to renew the 40-year lease of the popular oyster farm that supplied oysters to many businesses in the area, mainly restaurants.

    Park officials and environmental groups claimed that the operation was harming the flora and fauna in the estuary, especially the harbor seals.

    The owner of Drakes Bay and locals claimed that the operation was not harming the estuary and that the National Park Service had no science to show otherwise.

    Finally, U.S. Sen. Dianne Feinstein, D-Calif., requested a National Academy of Sciences investigation into the Drakes Bay research.

    This is from a 2009 "Shooting the Breeze" blog on the clash over the science:

    "The academy reviewed the documents and reports from Park Service scientists that claimed the oyster farm’s motorboats were destroying eelgrass and spooking seals off sandbars during the birthing season – among other things.

    However, in a report issued in May, the academy found insufficient data to determine that seals and other wildlife were being harmed, and it criticized the Park Service science, saying it has 'exaggerated the negative and overlooked potentially beneficial effects of the oyster culture operation.'"

    The dispute about the science at Point Reyes has many, many similarities to the dispute over the science upon which the Cape Hatteras National Seashore officials have based the huge buffers for nesting shorebirds and chicks here.

    Despite what the Park Service claims, the science in the case of Cape Hatteras has not been peer reviewed.  It is, at best, "the best available science," but it is in no way sufficient.

    A federal judge gave the oyster farm a 30-day reprieve after the restaurants that depend on the Drakes Bay oysters asked for an injunction to stop the farm's closure.

    A hearing in that case is scheduled in September, but the businesses admit they don't have much chance of winning.

    This, likely, is the end of the road for the Drakes Bay Oyster Co.


    The Caller-Times in Corpus Christi, Texas, reported last month that Neuces County is one step closer to "planting its flag in the sand" of 3,600 acres located between the Padre Island National Seashore and the county line.

    The commissioners voted 3-2 to move forward with acquiring the 3,600 acres that the Nature Conservancy also wants.

    The Nature Conservancy would donate the land to the national seashore, and officials at the seashore issued a statement that they do not intend to prohibit public access.

    However, local officials and members of the non-profit Ed Rachal Foundation don't trust the federal government, and the foundation has committed to providing the funds to acquire the land.

    Environmentalists don't trust that the county would be good stewards of the land -- at least not as good as they would be.

    The county has said it would accept the "no development" restrictions now on the land.

    Local governments are now trying to figure out how they can afford to maintain and police the beaches if they do buy the land.


    This report comes to us from "Opposing Views," a Los Angles-based independent media site that publishes original journalism on politics, social issues, religion, sports, and entertainment.

    "John Gladwin and his cattle dog Molly are not allowed to enter the Santa Monica Mountains National Recreation Area in Los Angeles, or he will go to jail.

    Gladwin, 69, is not allowed to leave Southern California unless his probation officer allows it.

    The federal government has cracked down on the retiree because he violated a leash law two times per the regulations of the National Park Service.

    "I've never had someone, while a trial was pending, go and commit the same offense. He's incorrigible," Assistant U.S. Attorney Sharon McCaslin told the LA Weekly. "He thinks the park is his backyard."

    Actually, the park is Gladwin's backyard. His home is only a few hundred feet from the Santa Monica Mountains."

    You can read more in the link at the end of this blog.

    And, by the way, think twice before you unleash your dog on the Cape Hatteras National Seashore.


    On piping plover decline at Cape Cod National Seashore:


    On kiteboarding ban at Cape Cod National Seashore:

    On NPS new proposed rules at Ozark National Scenic Riverways:

    On closure of Drakes Bay Oyster Co. in Point Reyes National Seashore:

    On Texas county's efforts to keep land from Padre Island National Seashore:

    On man who violated leash law in Santa Monica Mountains National Recreational Area:

  • Don't believe everything you read

    Don't believe everything you read, so they say.

    And in this case, it's true.

    If you have read that the U.S. Court Appeals for the Fourth Circuit "overturned" the lawsuit brought by environmental groups against state and federal agencies over their plan to replace the aging Herbert C. Bonner Bridge, don't believe it.

    Yesterday, folks on the Outer Banks were scrambling to make sense of the news reports on Wednesday's decision.

    They were trying to figure out what the opinion really means for going forward with the project so fervently that you would have thought their lives depended on it.

    And one of these days, they might.

    Anyway, news reports in almost every media I checked Wednesday and yesterday referred to the decision being "overturned" -- in either the headline or at the very beginning of the article.

    The first thing you should understand about the Appeals Court decision is that it did not overturn a lower court decision in a lawsuit filed by environmental groups over the decision by N.C. Department of Transportation and the Federal Highway administration to replace the bridge.

    You have to read only to Page 4 of the 57-page decision to figure that out.

    On Page 4, the appeals judges say that they "affirm the district court's determination that Defendants complied with NEPA, reverse the district court's determination that a special exemption frees Defendants from complying with Section 4(f), and remand for further proceedings."

    In this case, the Southern Environmental Law Center, on behalf of its clients, Defenders of Wildlife and the National Wildlife Refuge Association, sued DOT and FHWA in 2011, challenging their replacement decision.

    The state and federal agency chosen alternative on the project is Parallel Bridge Corridor with an N.C. 12 Transportation Management Plan, which would use a phased approach to address the hotspots on Highway 12 through Pea Island National Wildlife Refuge.

    The environmental groups think that the agencies should build a 17.5 mile bridge in the Pamlico Sound that bypasses the refuge. The state claims that the parallel bridge is too expensive to build.

    The Cape Hatteras Electric Cooperative was allowed to join as a defendant-intervenor because the environmental groups’ preferred alternative – the 17.5 bridge – would require prohibitively expensive transmission lines under the bridge.

    In September 2013, U.S. District Court Judge Louise Flanagan ruled in favor of the state and federal defendants. In October 2013, SELC appealed her decision, and in May, a three-judge panel of the Court of Appeal heard arguments at a hearing.

    The part of Flanagan's decision that the Appeals Court affirmed deals with the issue of whether the state and federal agencies complied with the National Environmental Policy Act in its Environmental Impact Statement, choosing its preferred alternative, and its Record of Decision.

    The environmental groups also claimed that the agencies illegally "segmented" the project in its chosen phased approach to problems with Highway 12.

    Flanagan ruled that the agencies did comply with NEPA and did not illegally segment the project, and the Appeals Court agreed with her.

    This issue is the heart of the decision, the "critical" issue.  The Appeals Court deals with the issue in 46 pages of its 57-page decision.

    And the fact that two federal courts have now ruled that DOT met the requirements of NEPA may well help decide a related legal squabble over a state-issued Major CAMA Permit to replace the bridge.  

    SELC is also challenging that permit, and an administrative hearing on that permit is scheduled for October. The challenge is largely based on whether the environmental requirements were met.

    The Appeals Court overturned a portion of Flanagan's ruling about Section 4(f) of the Transportation Act of 1966 -- specifically it overturned Flanagan's ruling that the agencies qualified for a joint planning exception to preparing a 4(f) evaluation.

    Section 4(f) requires that the federal government prepare a special analysis of transportation projects that require the use of federal land or a historic site.  In this case, the project would require the use of about 4 acres of the wildlife refuge land at the southern terminus of the bridge.

    The agencies must examine all alternatives for the project and show that the project will not have a negative effect on the refuge and its wildlife -- or that its chosen alternative is the least environmentally damaging alternative.

    The agencies would be exempt if they can show that the transportation corridor and the refuge were planned at the same time.

    Flanagan ruled that the agencies proved their point and got the exception.  The Appeals Court overturned that part of the ruling, saying that the agencies couldn't qualify for an exception because they had not produced enough evidence to show they did.

    They remanded the case back to Flanagan for further proceedings and instructed her to examine the record to determine if the planning exception applies.

    Even though they claimed that they qualified for the exception, the agencies did produce a Section 4(f) evaluation of the project that said the preferred alternative was the least environmentally damaging alternative.

    In its decision,  the Appeals Court said it vacated Flanagan's analysis of the Section 4(f) evaluation that was written and instructed her to follow the legal framework set forth in the decision and engage in the "requisite thorough, probing, and indepth review" to make sure the agencies comply with Section 4(f).

    In essence, the higher court instructed Flanagan to review the part of her decision that deals with Section 4(f).  

    This hardly constitutes "overturning" the lower court decision.

    The Department of Transportation, Dare County, and the Cape Hatteras Electric Cooperative are all encouraged by the ruling.

    Bobby Outten, Dare County manager and attorney, said that meeting NEPA requirements are a "big, big chunk" of projects such as the bridge replacement.

    Outten said that the 4(f) part of the higher court ruling was "confusing."

    "But the issue is narrowed down to one thing," he said.  "And they didn't say, 'You can't build the bridge.'"

    The Southern Environmental Law Center is also pleased.  It says so in two pages of its usual "spin" that it calls a media release.

    The release says the Appeals Court ruled that the agencies "have a duty to provide and disclose to the public a long-term plan that analyzes the impacts of the transportation route" through Pea Island.
    The release says in part:

    "The transportation agencies must minimize harm to the refuge and fully assess alternative solutions to NCDOT’s current plan to build and maintain a patchwork of bridges and highways in the Atlantic Ocean’s tidal zone and surf for the next 50 years.  The decision by the appeals court reverses the decision of the U.S. District Court for the Eastern District of North Carolina and returns the case for reconsideration consistent with the appellate court ruling."

    SELC ignores the facts that NCDOT and FHWA have fully assessed and disclosed to the public their plan.  It's called the Parallel Bridge Corridor with an N.C. 12 Transportation Management Plan.

    SELC and its clients no doubt think they should get a pat on the back for stepping in to protect what they call "national treasures," such as Pea Island Refuge.

    Pea Island is a treasure, and it is a beautiful part of Hatteras Island, appreciated and loved by both islands and visitors.

    But it is not the natural, pristine area that SELC and clients would have you believe. It has been manipulated by man ever since it was established, beginning with the dunes that were built in the '30s by the Civilian Conservation Corps.

    This is from a blog I wrote about Pea Island in 2011:

    "In the 1930s, The Civilian Conservation Corps built dunes and dikes in the refuge.  In the late ‘50s and early ‘60s, the U.S. Fish and Wildlife Service constructed three impoundments to enhance habitat quality. These 'ponds' with their dike system are carefully managed by Fish and Wildlife and are periodically drained.  The service also conducts periodic burns in the refuge to help maintain the habitat."

    Also, the refuge has managed to attract hundreds of species of birds and other wildlife despite the fact that it has been a transportation corridor since its inception. In the beginning, it had a sand road and it's had a paved road running through it since the 1950s. The road requires regular maintenance and has already been moved west several times. One bridge is under construction at an inlet cut by Hurricane Irene in 2011 and another is planned in northern Rodanthe -- with the blessing of the U.S. Fish & Wildlife Service.

    The environmental groups' determination to stop the plan to replace the bridge will mean further delays in replacing a decrepit structure that is long past its useful life.  

    At a cost of millions of dollars, DOT manages to keep it safe for the traveling public.  But the fact remains that time has run out for the Bonner Bridge.

    Now, Judge Flanagan will review her decision and decide if she can follow the higher court's instructions with the information she already has in the case record -- which runs thousands of pages --- or if she needs more information.  It's her choice.
    And, then, of course, SELC will have the opportunity for continued posturing with another appeal.

    If that happens, we hope it will take less time than it has in the past.

    North Carolina Secretary of Transportation Tony Tata said yesterday that he hopes that, after two court rulings, SELC and its clients might indicate "some willingness to negotiate" when it comes to this "critical lifeline for the citizens of the Outer Banks."

    Also, Board of Transportation Chairman Ned Curran added that he is willing to meet with the boards of directors of Defenders of Wildlife and the National Wildlife Refuge Association.

    "I will go anywhere, anytime to meet with them to try to bring some stability back to that area -- from an environmental perspective and from a human perspective."

    We doubt that SELC or its clients are interested in dropping the case or negotiating anything.  However, I wouldn't be at all surprised if they try to take their case all the way to the U.S. Supreme Court, which probably wouldn't agree to hear it.

    Meanwhile, the human perspective is what gets lost in this legal fight and in the reporting on what decisions mean and how much longer it will take to reach an end to it all.

    Chairman Curran summed it up best at yesterday's Board of Transportation meeting, and we will let him have the last word here.

    "Football season is just a few weeks away and when State beats Carolina or vice-versa -- just trying to be balanced here -- we all have high five's and chest-beatings and express (that) we've beat you. Those are fun sentiments when it comes to football, but when it comes to elements of court decisions and it comes to people, those are not the kind of sentiments we want to see from anybody.

    "So everyone goes to the corner, thinks about legal strategies and perhaps lost in all that are the people who face the very real uncertainties, (such as) last year when we had to close the bridge for safety concerns and their lives were disrupted and once again we are reminded how vital a transportation network is -- in this case, a bridge.  People had to get to chemotherapy treatments, to doctors' appointments, get to jobs, to day cares. (The trip) went from minutes to hours. That's the fresh uncertainty they face again....

    "What we're trying to do here is to protect the environment and protect the lives of people that are there.  It is vitally important, no matter what side of the issue, you are on."


    Click here to read the U.S. Court of Appeals ruling.

    Click here to read the ruling of U.S. District Court Judge Louise Flanagan.

    Click here to read the entire Southern Environmental Law Center media release.

  • What you should know about the Dare County Control Group

    True or false:  The Dare County Control Group decides when to evacuate Hatteras Island as a hurricane approaches and when to allow re-entry when it is past.

    This is false.

    The county says that the Control Group does not make the decisions about evacuation and re-entry but instead functions in an information-gathering and coordination role.

    True or false:  The Dare County Control Group is a public body.

    This may be true or it may be false.  

    The only thing that is perfectly clear in the law is that it is not clear whether a local emergency management control group is a public body.

    The Dare County Control Group is activated during emergencies, such as hurricanes, and consists of the chairman of the Dare County Board of Commissioners or his designee, the county sheriff, the superintendent of the Cape Hatteras National Seashore, and the mayors of the six municipalities in the county -- Duck, Kill Devil Hills, Kitty Hawk, Manteo, Nags Head, and Southern Shores.  All but the seashore superintendent are elected officials.

    Here in Dare County, there has been renewed interest in the Control Group and how it operates since Hurricane Arthur passed perilously close to the Outer Banks in the early morning hours of July 4.

    Some folks are still unhappy with the county's decision to allow visitors back onto Hatteras Island, which had been under a mandatory evacuation order, at 4 p.m. on July 5, just a day after the storm.

    Southern Hatteras Island had some wind damage to roofs and structures, but there was little or no storm tide.  It was July 4 weekend, and the island was more than ready and eager to welcome back visitors.

    The tri-villages of Rodanthe, Waves, and Salvo, on the other hand, had wind damage and had a storm surge that in places came close to the tide during Hurricane Irene in 2011.

    There were some houses -- it's not clear how many -- that were uninhabitable right after the storm and the villages were a stinking mess of high water, flooded swimming pools, scattered power outages, and floating propane tanks.

    Some -- or perhaps many -- folks in those villages did not want visitors back until they could clean up the mess.  Some even felt that letting visitors back so soon threatened the public's welfare and safety.

    Property management companies faced especially challenging issues getting homes in the tri-villages ready for a new wave of renters by Saturday afternoon.

    In the days after the storm, the county defended its decisions, saying that the emergency had ended. The highway was repaired and open. The island had power, water, and supplies and there was no longer a public safety reason to keep visitors out.

    Though county officials were sympathetic to the plight of property managers trying to get hundreds of houses cleaned and opened up on July 4 weekend, they said the fact that some houses were not ready for visitors was not reason enough to keep the island closed.

    Last week, representatives from some of the companies met with county officials to express their concerns, especially about public safety issues, which some feel did not get the proper consideration when the re-entry decision was being made.

    Also last week, two fire chiefs from the tri-villages appeared before the Dare County Board of Commissioners during the public comment session of the meeting to express their concerns.

    Jimmy Hooper, chief of the Salvo Volunteer Fire Department, said that "99 percent" of the people he had talked to thought re-entry was premature.

    He talked about "loads" of electric wires down, floating propane tanks, standing water, pool fences down, and phones not working for 911 calls.

    Mike Daugherty, chief of the Chicamacomico Banks Volunteer Fire Department, spoke about similar issues.  He said visitor accommodations were not "safe and clean."

    Hooper said he wanted to see Hatteras Island have two representatives on the Dare County Control Group -- one from southern Hatteras and one from northern Hatteras.

    As I wrote in a blog on July 11, evacuation and re-entry are always controversial and someone is always unhappy. That's been the case in every storm since I moved here 23 years ago, and it's not likely to change anytime soon.

    However, this time there seems to be more interest in the Control Group and how it makes decisions and a desire for there to be more transparency in the decision-making process.

    After Hurricane Arthur, Charles Tripp, the Area 2 coordinator for the North Carolina Emergency Task Force, told Island Free Press reporter Connie Leinbach on Ocracoke that none of the control groups across the state allow the media in their meetings and that state protocol is that all information from these meetings needs to go through a public information officer so that the public receives the same message.

    I, like some others, disagree and think the control group is a public body, and its meetings and deliberations should be open to the public.

    However, whether or not that's the case is not at all clear.

    "There's a question in my mind whether or not it is a public body," said Bobby Outten, Dare County manager and attorney.

    He says there is no case law on whether emergency control groups fall under the state's open meetings law. Even though they are not open to the media in most of the state, no one has ever challenged that.

    Norma Houston, a former Dare County attorney and faculty member at the University of North Carolina's Institute of Government in Chapel Hill, agrees with Outten on that point.

    "Legally, it's not clear as defined under the law and interpreted by the courts," she says.

    She says that no person or group has asked the courts to decide whether or not control group meetings should be public. And she said she wouldn't even begin to guess how a court might rule.

    Generally, she said, the courts interpret the public meetings law very broadly in favor of public access.  However, she said, the courts also interpret the emergency powers of local governments very broadly in favor of the local governments.

    Outten says he feels that making meetings public would be problematic because of their emergency nature and problems with public notifications.

    And even though most members of the control group are elected officials that in itself, does not make it a public body.

    However, over and above that, he argues that "there is no collective control group authority."

    While the state's General Statute 166A says it is the responsibility of local
    government to organize and plan for the protection of life and property in an emergency or disaster, the law does not specifically require the establishment of a control group.

    Again, Houston agrees that in deciding whether meetings should be public, the court would look at the decision-making process of the control group.

    "Is it making binding decisions?" she asks. "Or is it (conducting discussions) that individual officials can take back and make their own decision?"

    Outten says that the control group does not make decisions about evacuation and re-entry.

    Instead, he says, the group plays an advisory role, gathering information and coordinating. The county board chairman and the mayors make their own decisions for their jurisdictions. They are the only ones who can legally decide such issues as evacuation, re-entry, curfew, or liquor sales.  

    The rest of us may have a different impression about the role of the Dare County Control Group and its powers.

    And we would get that impression from the county's own media releases during emergencies.

    For example, take this release from Wednesday, July 2, during Hurricane Arthur:

    "The Dare County Control Group has issued a mandatory evacuation order for residents and visitors on Hatteras Island beginning at 5 a.m. Thursday."

    Later, the release says that the Dare County Control Group is "the decision making body for Emergency Management."

    However, according to Outten, it is actually the chairman of the Board of Commissioners -- who has been delegated by the other board members -- who makes the decision for unincorporated Dare County, including Hatteras Island.

    Outten notes that the chairman does not make that decision in a vacuum but after consultation with board members, public officials, utilities, members of the business community, and others.

    For now, the dispute about whether or not public safety was duly considered before allowing visitors back should probably be chalked up to some level of miscommunication.

    One suggestion to remedy that is to re-activate a Hatteras Island support group, which is still included in the county's 2007 Emergency Management Plan.

    The plan says:

    "Dare County has established a Support EOC on Hatteras Island to enhance the flow of information to the Dare County Emergency Operations Center and back to the residents of Hatteras Island. This facility is staffed by support personnel from key agencies on Hatteras Island under the guidance of the Hatteras Island Commissioner. Control remains under Dare County."

    Outten says a Hatteras Island group is no longer needed because new technologies allow those who once had to gather together to communicate with Manteo to be in touch by phones or radios from wherever they are located.

    County officials, he said, are constantly striving to improve the evacuation and re-entry process.

    After hearing the latest round of complaints, Outten and others are looking at how individual villages on Hatteras Island might remain closed to the public, while others are opened.

    That was pretty easy to do after Hurricane Isabel in 2003 cut an inlet just east of Hatteras village, since that village is the southernmost on the island.

    It will be more difficult in the tri-villages, the northernmost villages that visitors must pass through to get to the rest of the island.

    Perhaps, though, it can be done. That would be a good thing.

    Meanwhile, going forward, making the Dare County Control Group meetings public would definitely make the process more transparent.

    It would be an improvement over what we now have and perhaps leave fewer folks unhappy about the decision -- fewer but probably not all.


    Click here to read the 2007 Dare County Emergency Management Plan.

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