[Senate Report 113-102]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 180
113th Congress                                                   Report
                                 SENATE
 1st Session                                                    113-102

======================================================================



 
           PRESERVING PUBLIC ACCESS TO CAPE HATTERAS BEACHES

                                _______
                                

               September 10, 2013.--Ordered to be printed

                                _______
                                

    Mr. Wyden, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 486]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 486) to authorize pedestrian and 
motorized vehicular access in Cape Hatteras National Seashore 
Recreational Area, and for other purposes, having considered 
the same, reports favorably thereon with an amendment and 
recommends that the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Preserving Public Access to Cape 
Hatteras Beaches Act''.

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Final rule.--The term ``Final Rule'' means the final rule 
        entitled ``Special Regulations, Areas of the National Park 
        System, Cape Hatteras National Seashore--Off-Road Vehicle 
        Management'' (77 Fed. Reg. 3123 (January 23, 2012)).
          (2) National seashore.--The term ``National Seashore'' means 
        the Cape Hatteras National Seashore Recreational Area.
          (3) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.
          (4) State.--The term ``State'' means the State of North 
        Carolina.

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

  (a) In General.--Not later than 180 days after the date of enactment 
of this Act, the Secretary shall review and modify wildlife buffers in 
the National Seashore in accordance with this section and any other 
applicable law.
  (b) Buffer Modifications.--In modifying wildlife buffers under 
subsection (a), the Secretary shall, using adaptive management 
practices--
          (1) ensure that the buffers are of the shortest duration and 
        cover the smallest area necessary to protect a species, as 
        determined in accordance with peer-reviewed scientific data; 
        and
          (2) designate pedestrian and vehicle corridors around areas 
        of the National Seashore closed because of wildlife buffers, to 
        allow access to areas that are open.
  (c) Coordination With State.--The Secretary, after coordinating with 
the State, shall determine appropriate buffer protections for species 
that are not listed under the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.), but that are identified for protection under State law.

SEC. 4. MODIFICATIONS TO FINAL RULE.

  The Secretary shall undertake a public process to consider, 
consistent with management requirements at the National Seashore, the 
following changes to the Final Rule:
          (1) Opening beaches at the National Seashore that are closed 
        to night driving restrictions, by opening beach segments each 
        morning on a rolling basis as daily management reviews are 
        completed.
          (2) Extending seasonal off-road vehicle routes for additional 
        periods in the Fall and Spring if off-road vehicle use would 
        not create resource management problems at the National 
        Seashore.
          (3) Modifying the size and location of vehicle-free areas.

SEC. 5. CONSTRUCTION OF NEW VEHICLE ACCESS POINTS.

  The Secretary shall construct new vehicle access points and roads at 
the National Seashore--
          (1) as expeditiously as practicable; and
          (2) in accordance with applicable management plans for the 
        National Seashore.

SEC. 6. REPORT.

  The Secretary shall report to Congress within 1 year after the date 
of enactment of this Act on measures taken to implement this Act.

                                PURPOSE

    The purpose of S. 486, as ordered reported, is to direct 
the Secretary of the Interior to review and modify wildlife 
buffers at Cape Hatteras National Seashore in North Carolina, 
and to undertake a public process to consider changes to the 
National Park Service's regulations which would allow increased 
motorized access to certain beaches in the National Seashore.

                          BACKGROUND AND NEED

    Officially authorized in 1937 along the Outer Banks of 
North Carolina, Cape Hatteras is the nation's first national 
seashore. Consisting of more than 30,000 acres distributed 
along approximately 64 miles of shoreline, Cape Hatteras 
National Seashore Recreation Area (National Seashore) is part 
of a dynamic barrier island system. Millions of visitors come 
to the National Seashore each year to engage in recreational 
activities such as fishing, hunting, surfing, boating, beach 
driving, and bird and wildlife viewing. The National Seashore 
also provides important habitat for various species of wildlife 
and serves as a wintering area for migratory waterfowl. It is 
home to several species that are listed as threatened or 
endangered under the Endangered Species Act, including the 
endangered leatherback turtle and the piping plover.
    In 2007, the National Park Service implemented an Interim 
Protected Species Management Strategy (Interim Strategy) 
governing off-road vehicle (ORV) use at the National Seashore 
to address resource protection, visitor safety, and potential 
conflicts among various park users. The Interim Strategy was 
implemented in response to a lawsuit filed in 2005 claiming 
that the National Park Service had failed to protect species 
and establish an ORV management plan, as required by the 
agency's regulations.
    In October 2007, another lawsuit was filed against the 
National Park Service alleging that the Interim Strategy was 
inadequate and that the Seashore's management of ORV use 
violated existing laws, including the Endangered Species Act, 
the National Park Service Organic Act, an executive order 
relating to ORV use, and National Park Service regulations 
regarding ORV use in units of the national park system.
    In April 2008, a U.S. District Court Judge signed a consent 
decree to settle the lawsuit. The consent decree was agreed to 
by the plaintiffs and the National Park Service; and by Dare 
and Hyde Counties and a coalition of local ORV and fishing 
groups who participated in the lawsuit as interveners.
    Pursuant to the consent decree, the National Park Service 
was required to complete an ORV Management Plan and an 
accompanying environmental impact statement for the seashore by 
December 31, 2010, and complete a final Special Regulation by 
2011. On February 15, 2012, the final ORV Management Plan/
Environmental Impact Statement and special regulation went into 
effect for the National Seashore (77 Fed. Reg. 3123). The final 
plan includes a five-year periodic review process that allows 
for evaluation and modifications to be made, if necessary.
    While the National Park Service believes that the rule 
brings the National Seashore into compliance with the Executive 
Orders and other applicable laws and policies after many years 
of non-compliance, opponents of the rule believe it unfairly 
limits historic access to the seashore, in particular the use 
of off-road vehicles on certain beaches, thereby decreasing 
economic activity in the region.
    As ordered reported, S. 486 would leave the final rule in 
effect, but would direct the National Park Service to modify 
wildlife buffers within the National Seashore to provide for 
greater motorized and pedestrian access, while maintaining the 
necessary protection for wildlife required by existing laws, 
and to consider modifications to the rule that would provide 
for increased ORV access within the National Seashore.

                          LEGISLATIVE HISTORY

    Senators Burr and Hagan introduced S. 486 on March 7, 2013. 
Senator Manchin is a cosponsor. The Subcommittee on National 
Parks held a hearing on S. 486 on April 23, 2013. At its 
business meeting on June 18, 2013 the Committee ordered S. 486 
favorably reported with an amendment in the nature of a 
substitute.
    In the 112th Congress, a similar bill, S. 2372, was 
introduced by Senators Burr and Hagan on April 26, 2012. The 
Subcommittee on National Parks held a hearing on S. 2372 on 
June 27, 2012 (S. Hrg. 112-578). Similar legislation was also 
included in H.R. 2578, the Conservation and Economic Growth 
Act, which passed the House of Representatives by a vote of 
232-188 on June 19, 2012.

                        COMMITTEE RECOMMENDATION

    The Senate Committee on Energy and Natural Resources, in 
open business session on June 18, 2013, by a voice vote of a 
quorum present, recommends that the Senate pass S. 486 if 
amended as described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 486, the Committee adopted 
an amendment in the nature of a substitute. The amendment would 
leave the current National Park Service regulations governing 
off-road vehicle use at the National Seashore in place, but 
require that the Secretary of the Interior review and adjust 
wildlife protection buffers, using adaptive management 
practices, to ensure that the buffers are of the shortest 
possible duration and cover the smallest area necessary to 
protect the species. The Secretary would also be required to 
designate pedstrian and vehicle corridors around areas of the 
National Seashore that are closed because of wildlife buffers, 
to allow access to other areas that are open.
    Additionally, the substitute amendment would direct the 
Secretary to undertake a public process to consider changes to 
the National Park Service's Final Rule that would allow for 
greater off-road vehicle access on beaches within the National 
Seashore. Finally, the amendment directs the Secretary to 
expeditiously construct new vehicle access points and roads 
within the National Seashore in accordance with applicable 
management plans.
    The amendment is described in detail in the section-by-
section analysis below.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 provides for the short title, the ``Preserving 
Public Access to Cape Hatteras Beaches Act.''
    Section 2 defines key terms in the bill.
    Section 3(a) directs the Secretary of the Interior 
(Secretary), not later than 180 days after the date of 
enactment of this Act, to review and modify wildlife buffers 
applicable to the Cape Hatteras National Seashore Recreational 
Area (National Seashore) in accordance with this section and 
any other applicable law.
    Subsection (b) requires that the Secretary, in modifying 
wildlife buffers under subsection (a), use adaptive management 
strategies to: (1) ensure that wildlife buffers are of the 
shortest possible duration and cover the smallest possible area 
necessary to protect a species as determined by peer reviewed 
scientific data; and (2) designate pedestrian and vehicle 
corridors around areas closed because of wildlife buffers, to 
allow access to areas that are open.
    Subsection (c) requires that the Secretary coordinate with 
the State of North Carolina in determining appropriate buffer 
protections for species that are not listed under the 
Endangered Species Act of 1973 (16 U.S.C. 1531 et sec.), but 
are identified for protection under State law.
    Section (4) directs the Secretary to undertake a public 
process to consider changes to the Final Rule (77 Fed. Reg. 
3123) that would: open segments of beaches closed to night 
driving on a rolling basis; extend seasonal off-road vehicle 
routes for additional periods in the Fall and Spring; and 
modify the size and location of vehicle-free areas.
    Section (5) requires that the Secretary, as expeditiously 
as practicable, construct new vehicle access points and roads 
at the National Seashore in accordance with applicable 
management plans for the National Seashore.
    Section (6) directs the Secretary to report to Congress on 
measures taken to implement this Act within 1 year after the 
date of enactment.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office:

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

    S. 486 would require modifications to the management of the 
Cape Hatteras National Seashore in North Carolina. Under the 
bill, the Secretary of the Interior would review and modify 
wildlife buffers on the seashore to cover the smallest area 
necessary. S. 486 also would require the Secretary to construct 
new vehicle access points to the seashore. The National Park 
Service (NPS) would be directed to conduct a public process to 
consider modifications to the existing management plan for the 
seashore.
    Based on information provided by the NPS, CBO estimates 
that implementing S. 486 would cost about $6 million over the 
2014-2018 period, assuming the availability of appropriated 
funds. That amount includes an estimated increase in 
administrative costs of $1 million annually to monitor wildlife 
buffer areas and $1 million to prepare and implement a modified 
management plan. The NPS is currently constructing new vehicle-
access points at the seashore, so implementing that provision 
of S. 486 would have no additional cost. Pay-as-you-go 
procedures do not apply to this legislation because it would 
not affect direct spending or revenues.
    S. 486 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    On May 31, 2013, CBO transmitted a cost estimate for H.R. 
819, the Preserving Access to Cape Hatteras National Seashore 
Recreational Area Act, as ordered reported by the House 
Committee on Natural Resources on May 15, 2013. H.R. 819 would 
require the seashore's management plan to revert back to the 
Interim Strategy, which was issued in 2007. In contrast, S. 486 
would require the Secretary to undertake a public process to 
determine how to modify the current management plan. The CBO 
cost estimates reflect those differences.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 486.
    The bill is not a regulatory measure in the sense of 
imposing Government-established standards or significant 
economic responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 486, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 486, as reported, does not contain any congressionally 
directed spending items, limited tax benefits, or limited 
tariff benefits as defined in rule XLIV of the Standing Rules 
of the Senate.

                        EXECUTIVE COMMUNICATIONS

    The testimony provided by the National Park Service at the 
April 23, 2013, Subcommittee on National Parks hearing on S. 
486 follows:

  Statement of Peggy O'Dell, Deputy Director for Operations, National 
             Park Service, U.S. Department of the Interior

    Mr. Chairman and members of the subcommittee, thank you for 
the opportunity to appear before you today to present the 
Department of the Interior's views on S. 486, a bill entitled 
``to authorize pedestrian and motorized vehicular access in 
Cape Hatteras National Seashore Recreational Area, and for 
other purposes.''
    The Department strongly opposes S. 486. This bill would 
reinstate the 2007 Interim Protected Species Management 
Strategy (Interim Strategy) governing off-road vehicle (ORV) 
use at Cape Hatteras National Seashore (Seashore).
    The Department supports allowing appropriate public use and 
access at the Seashore to the greatest extent possible, while 
also ensuring protection for the Seashore's wildlife and 
providing a variety of visitor use experiences, minimizing 
conflicts among various users, and promoting the safety of all 
visitors. We strongly believe that the final ORV Management 
Plan/Environmental Impact Statement (EIS) and special 
regulation are accomplishing these objectives far better than 
the defunct Interim Strategy. Contrary to some reports, there 
is not now and never has been a ban on ORVs at the Seashore. 
The great majority of the beach is open to ORVs, visitation is 
rising, and tourist revenues are at record levels. At the same 
time, beach-nesting birds and sea turtles are finally showing 
much-needed improvements.
    The Seashore stretches for about 67 miles along three 
islands of the Outer Banks of North Carolina. It is famous for 
its soft sandy beaches, outstanding natural beauty, and dynamic 
coastal processes that create important habitats, including 
breeding sites for many species of beach-nesting birds, among 
them the federally listed threatened piping plover, the state-
listed threatened gull-billed tern, and a number of species of 
concern including the common tern, least tern, black skimmer, 
and the American oystercatcher. Long a popular recreation 
destination, Cape Hatteras attracts about 2.3 million visitors 
a year who come to walk the beach, swim, sail, fish, use ORVs, 
and enjoy the ambiance of the shore. In the towns that dot the 
Outer Banks, a major tourism industry has developed to serve 
visitors and local beachgoers, including fishermen. In 2011, 
visitors to the three islands spent approximately $121 million 
(an increase of $13 million from 2010), and supported about 
1,700 jobs.
    Under the National Park Service Organic Act, the Endangered 
Species Act, the Migratory Bird Treaty Act, the Seashore's 
enabling act, and National Park Service (NPS) regulations and 
policies, the NPS has an affirmative responsibility to conserve 
and protect wildlife, as well as the other resources and values 
of the Seashore. Executive Order 11644 (1972), amended by 
Executive Order 11989 (1977), requires the NPS to issue 
regulations to designate specific trails and areas for ORV use 
based upon resource protection, visitor safety, and 
minimization of conflicts among uses of agency lands.
    The special regulation that went into effect on February 
15, 2012, brings the Seashore into compliance with applicable 
laws, policies, and Executive Orders after many years of 
noncompliance. In addition to resource impacts, the approved 
plan addresses past inconsistent management of ORV use, user 
conflicts, and safety concerns in a comprehensive and 
consistent manner.
    The Interim Strategy was never intended to be in place over 
the long-term. When it was developed, the Seashore had no 
consistent approach to species protection and no ORV management 
plan or special regulation in place. While the Interim Strategy 
took an initial step toward establishing a science-based 
approach, key elements such as buffer distances for American 
oystercatchers and colonial waterbirds, and the lack of night 
driving restrictions during sea turtle nesting season, were 
inconsistent with the best available science. The 2006 U.S. 
Fish and Wildlife Service (USFWS) biological opinion for the 
Interim Strategy indicated that it would cause adverse effects 
to federally listed species, but found no jeopardy to those 
species mainly because of the limited duration of 
implementation (expected to be no later than the end of 2009). 
Similarly, the 2007 NPS Finding of No Significant Impact 
(FONSI) for the Interim Strategy indicated the action had the 
potential to adversely impact federally listed species and 
state-listed species of concern, but found that a more detailed 
analysis (an EIS) was not needed because of the limited period 
of time that the Interim Strategy would be implemented.
    After a lawsuit was filed against the Interim Strategy, a 
federal judge entered a Consent Decree for park management. The 
species-specific buffer distances and the night driving 
restrictions contained in both the Consent Decree and in the 
plan/EIS are based on scientific studies and peer-reviewed 
management guidelines such as the USFWS Piping Plover and 
Loggerhead Turtle Recovery Plans, and the U.S. Geological 
Survey (USGS) Open-File Report 2009-1262 (also referred to as 
the ``USGS protocols,'') on the management of species of 
special concern at the Seashore. Buffer distances for state-
listed species are based on relevant scientific studies 
recommended by the North Carolina Wildlife Resources 
Commission, USFWS, and USGS.
    Under the science-based species protection measures of the 
Consent Decree, many of which are incorporated into the ORV 
management plan and special regulation, a trend of improving 
conditions for beach nesting birds and sea turtles has emerged. 
Although breeding success depends on a number of factors 
including weather, predation, habitat availability, and level 
of human disturbance, there has been a striking improvement in 
the condition of protected beach-nesting wildlife species. The 
Seashore has experienced a record number of piping plover pairs 
and fledged chicks, American oystercatcher fledged chicks, 
least tern nests, and improved nesting results for other 
species of colonial waterbirds. The number of piping plover 
breeding pairs has increased from an annual average of 3.6 
pairs from 2000 to 2007 under the Interim Strategy to an 
average of 11.75 pairs between 2008 and 2011 under the Consent 
Decree. In 2012, the NPS documented 15 piping plover breeding 
pairs. The number of sea turtle nests also significantly 
increased, from an annual average of 77.3 from 2000 to 2007 to 
an average of 129 from 2008 to 2011. In 2012, sea turtle 
nesting in the Seashore climbed to an all-time high of 222.
    Although the prescribed buffers have resulted in temporary 
closures of some popular locations when breeding activity was 
occurring, even at the peak of the breeding season there have 
generally been many miles of open beach entirely unaffected by 
the species protection measures. Under the Consent Decree from 
2007 to 2011, annual visitation at the Seashore continued at a 
level similar to that of 2006 to 2007. In 2012, visitation 
increased 17% from 2011, and it was a 6% increase from the 
average visitation between 2007 and 2011. Dare County, where 
the Seashore is located, experienced record occupancy and meal 
revenues in 2012, as reported by the Outer Banks Visitor 
Bureau, despite the impacts of Hurricane Sandy that closed or 
substantially limited traffic along North Carolina Highway 12 
to Hatteras Island from late October to late December 2012. 
This occupancy revenue has continued to climb over the last 
several years as follows: 2009 ($318 million), 2012 ($330 
million), 2011 ($343 million), 2012 ($382 million through the 
end of November) while meals revenue has also increased as 
follows: 2009 ($185 million), 2010 ($188 million), 2011 ($191 
million), and 2012 ($201 million though the end of November).
    The final ORV management plan and regulation provide long-
term guidance for the management of ORV use and the protection 
of affected wildlife species at the Seashore. The plan not only 
provides diverse visitor experience opportunities, manages ORV 
use in a manner appropriate to a unit of the National Park 
System, and provides a science-based approach to the 
conservation of protected wildlife species, but also adapts to 
changing conditions over the life-span of the plan. It includes 
a five-year periodic review process that will enable the NPS to 
systematically evaluate the plan's effectiveness and make any 
necessary changes.
    During the preparation of the environmental impact 
statement (EIS) for the management plan, the NPS evaluated the 
potential environmental impacts of long-term implementation of 
the Interim Strategy. The analysis determined that if the 
Interim Strategy were continued into the future, it would 
result in long-term, moderate to major adverse impacts to 
piping plovers, American oystercatchers, and colonial 
waterbirds, as well as long-term, major adverse impacts to sea 
turtles. Impacts to sea turtles and three species of colonial 
waterbirds had the potential to rise to the level of 
``impairment,'' which would violate the National Park Service 
Organic Act.
    Moreover, if the Interim Strategy were to be reinstated, it 
could well be counterproductive to visitor access. Under the 
Interim Strategy, popular destinations such as Cape Point and 
the inlet spits still experienced resource protection closures. 
Several of the beach-nesting bird species at the Seashore may 
renest several times during the same season if eggs or very 
young chicks are lost, which is more likely when there is a 
higher level of human disturbance in proximity to nests and 
chicks. Under the Consent Decree, with its science-based 
buffers, there has been a noticeable reduction in the number of 
these renesting attempts for piping plovers and American 
oystercatchers, which means the duration of closures is 
typically shorter. Because the Interim Strategy allows smaller 
buffers and more disturbance of nests and chicks at these key 
sites, it increases the likelihood that birds will renest one 
or more time at those sites, and so even though the closures 
may seem smaller, they may be in place for a longer time than 
under the ORV plan or Consent Decree. This is even more likely 
to be the case now, because the number of nesting birds has 
increased significantly since 2007.
    The Seashore has taken steps to enhance access in areas 
favored by beach fishermen. Specifically, a bypass below Ramp 
44 allows ORV access to the eastern side of Cape Point and 
areas not closed during bird breeding season in the event of 
access blockage on the beach proper, whether from weather and 
tide events or resource closures. At Hatteras Inlet, at the end 
of Hatteras Island, a trail has been created and maintained to 
allow ORV access and the ability to park closer to what have 
traditionally been preferred fishing areas. In the proximity of 
Ramp 4, a pedestrian access trail adjacent to the Oregon Inlet 
Fishing Center to provide access for fishing in the ocean for 
those visitors without ORVs. Also, as a mitigation measure with 
the building of the new Bonner Bridge project, a new access 
ramp will be installed at approximately mile 2.5 that will 
expedite access to the northern end of the park. The Seashore 
is also in the final stages of completing an Environmental 
Assessment titled ``Proposal to Construct New Development that 
Facilitates Public Access'' which may include additional access 
points to areas that are traditionally closed off due to 
resource closure; these will enhance the fishing/beach driving 
opportunities.
    In addition to reinstating the Interim Strategy, S. 486 
provides authority for additional restrictions only for species 
listed as ``endangered'' under the Endangered Species Act of 
1973, and only for the shortest possible time and on the 
smallest possible portions of the Seashore. This would conflict 
with numerous other laws and mandates including the National 
Park Service Organic Act, the Endangered Species Act, the 
Migratory Bird Treaty Act, the Seashore's enabling act, the 
aforementioned Executive Orders, and NPS regulations 
implementing these laws, which provide for the protection of 
other migratory bird species and other park resources.
    S. 486 also provides that the protection of endangered 
species at Cape Hatteras shall not be greater than the 
restrictions in effect for that species at any other national 
seashore. Species protection measures cannot reasonably be 
compared from seashore to seashore without considering the 
specific circumstances at each site and the context provided by 
the number and variety of protected species involved, the 
levels of ORV use, and the underlying restrictions provided by 
the respective ORV management plans and special regulations. 
Even though Cape Hatteras has a wider variety of beach nesting 
wildlife species than Cape Cod or Assateague, for example, its 
plan actually allows for a much higher level of ORV use on 
larger portions of the Seashore. It would be neither reasonable 
nor biologically sound for Cape Hatteras to use less protective 
measures if they were designed for a location where the level 
of ORV use is much lower to begin with. Nor does it appear that 
such an arbitrary approach could possibly comply with the 
``peer-reviewed science'' requirement imposed elsewhere in the 
bill. The Cape Hatteras plan was specifically designed to be 
effective for the circumstances at Cape Hatteras. The bill 
would require, to the maximum extent possible, that pedestrian 
and vehicle access corridors be provided around closures 
implemented to protect wildlife nesting areas. This concept was 
thoroughly considered during the preparation of the plan and 
EIS. The plan already allows for such access corridors when not 
in conflict with species protection measures. For example, 
under the current regulation, the Seashore works with the 
communities and has the ability to allow access around a turtle 
nest when the alternative route is between the nest and dunes 
but does not cause impairment to the existing dunes/vegetation.
    Shorebird nesting areas are often close to the shoreline 
because of the Seashore's typically narrow beaches. A 
concentration of nests occur near the inlets and Cape Point, 
and access corridors cannot always be allowed without defeating 
the fundamental purpose of such closures: protecting wildlife. 
Several species of shorebirds that nest at the Seashore have 
highly mobile chicks, which can move considerable distances 
from nests to foraging sites. Inadequate resource closures in 
the past have resulted in documented cases of human-caused loss 
or abandonment of nests and chick fatalities. Corridors that 
cut through a resource closure area would essentially undermine 
the function of the closure and render it compromised or even 
useless.
    Finally, the final ORV management plan/EIS and special 
regulation are the products of an intensive five-year long 
planning process that included a high level of public 
participation through both the National Environmental Policy 
Act (NEPA) process and negotiated rulemaking, including four 
rounds of public comment opportunities. The Negotiated 
Rulemaking Advisory Committee's function was to assist directly 
in the development of special regulations for management of 
ORVs and met from 2007 to 2009. Although the committee did not 
reach consensus on a proposed regulation, it provided a 
valuable forum for the discussion of ORV management and 
generated useful information for the NPS. The NPS received more 
than 15,000 individual comments on the draft plan/EIS and more 
than 21,000 individual comments on the proposed special 
regulation. In completing the final ORV management plan/EIS and 
special regulation, the NPS considered all comments, weighed 
competing interests and ensured compliance with all applicable 
laws.
    Currently, the ORV management plan/EIS and special 
regulation are the subject of a complaint that was filed by a 
coalition of ORV organizations with the US District Court in 
the District of Columbia on February 9, 2012. The Memorandum of 
Order to transfer the complaint to the US District Court of 
North Carolina was issued on December 23, 2012.
    Mr. Chairman, that concludes my testimony. I would be glad 
to answer any questions that you or other members of the 
subcommittee may have.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by S. 486, as ordered 
reported.

                                  
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