[Federal Register Volume 71, Number 174 (Friday, September 8, 2006)]
[Rules and Regulations]
[Pages 53020-53032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7502]
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DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 7
RIN 1024-AD44
Cape Lookout National Seashore, Personal Watercraft Use
AGENCY: National Park Service, Interior.
ACTION: Final rule.
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SUMMARY: This final rule designates areas where personal watercraft
(PWC) may be used to access Cape Lookout National Seashore, North
Carolina. This final rule implements the provisions of the National
Park Service (NPS) general regulations authorizing park areas to allow
the use of PWC by promulgating a special regulation. Individual parks
must determine whether PWC use is appropriate for a specific park area
based on an evaluation of that area's enabling legislation, resources
and values, other visitor uses, and overall management objectives.
DATES: Effective Date: This rule is effective September 8, 2006.
ADDRESSES: Mail inquiries to Superintendent, Cape Lookout National
Seashore, 131 Charles Street, Harkers Island, NC 28531.
FOR FURTHER INFORMATION CONTACT: Jerry Case, Regulations Program
Manager, National Park Service, 1849 C Street, NW., Room 7241,
Washington, DC 20240. Phone: (202) 208-4206. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
Background
Personal Watercraft Regulation
On March 21, 2000, the NPS published a regulation (36 CFR 3.24) on
the management of PWC use within all units of the national park system
(65 FR 15077). The regulation prohibits PWC use in all national park
units unless the NPS determines that this type of water-based
recreational activity is appropriate for the specific park unit based
on the legislation establishing that park, the park's resources and
values, other visitor uses of the area, and overall management
objectives. The regulation banned PWC use in all park units effective
April 20, 2000, except for 21 parks, lakeshores, seashores, and
recreation areas. The regulation established a 2-year grace period
following the final rule publication to provide these 21 park units
time to consider whether PWC use should be permitted to continue.
Description of Cape Lookout National Seashore
Cape Lookout National Seashore was established by Congress in 1966
to conserve and preserve for public use and enjoyment the outstanding
natural, cultural, and recreational values of a dynamic coastal barrier
island environment for future generations. Cape Lookout National
Seashore is a low, narrow, ribbon of sand located three miles off the
mainland coast in the central coastal area of North Carolina and
occupies more than 29,000 acres of land and water from Ocracoke Inlet
on the northeast to Beaufort Inlet to the southwest. The national
seashore consists of four main barrier islands (North Core Banks,
Middle Core Banks, South Core Banks, and Shackleford Banks), which
consist mostly of wide, bare beaches with low dunes covered by
scattered grasses, flat grasslands bordered by dense vegetation, and
large expanses of salt marsh alongside the sound. Congressionally
established boundaries include 150' of water from the mean low
waterline on the sound side of all islands. There are no road
connections to the mainland or between the islands.
Coastal barrier islands, such as those located in Cape Lookout
National Seashore, are unique land forms that provide protection for
diverse aquatic habitats and serve as the mainland's first line of
defense against the impacts of severe coastal storms and erosion.
Located at the interface of land and sea, the dominant physical factors
responsible for shaping coastal landforms are tidal range, wave energy,
and sediment supply from rivers and older, pre-existing coastal sand
bodies. Relative changes in local sea level also profoundly affect
coastal barrier island diversity. Coastal barrier islands exhibit the
following six characteristics:
Subject to the impacts of coastal storms and sea level
rise.
Buffer the mainland from the impact of storms.
Protect and maintain productive estuarine systems which
support the nation's fishing and shellfishing industries.
Consist primarily of unconsolidated sediments.
Subject to wind, wave, and tidal energies.
Include associated landward aquatic habitats which the
non-wetland portion of the coastal barrier island protects from direct
wave attack.
Coastal barrier islands protect the aquatic habitats between the
barrier island and the mainland. Together with their adjacent wetland,
marsh, estuarine, inlet, and nearshore water habitats, coastal barriers
support a tremendous variety of organisms. Millions of fish, shellfish,
birds, mammals, and other wildlife depend on barriers and their
associated wetlands for vital feeding, spawning, nesting, nursery, and
resting habitat.
Shackleford Banks contains the park's most extensive maritime
forest as well as wild horses that have adapted to this environment
over the centuries. The islands are an excellent place to see birds,
particularly during spring and fall migrations. A number of tern
species, egrets, herons, and shorebirds nest here. Loggerhead turtles
climb the beaches at nesting time.
[[Page 53021]]
Purpose of Cape Lookout National Seashore
Cape Lookout National Seashore was authorized on March 10, 1966, by
Public Law 89-366. Additional legislation, Public Law 93-477 (October
26, 1974), called for another 232-acre tract of land to be acquired, a
review and recommendation of any suitable lands for wilderness
designation, and authorized funding for land acquisition and essential
public facilities.
The purpose of Cape Lookout National Seashore is to conserve and
preserve for public use and enjoyment the outstanding natural,
cultural, and recreational values of a dynamic coastal barrier island
environment for future generations. The national seashore serves as
both a refuge for wildlife and a pleasuring ground for the public,
including developed visitor amenities.
The mission of Cape Lookout National Seashore is to:
Conserve and preserve for the future the outstanding
natural resources of a dynamic coastal barrier island system;
Protect and interpret the significant cultural resources
of past and contemporary maritime history;
Provide for public education and enrichment through
proactive interpretation and scientific study; and
Provide for sustainable use of recreation resources and
opportunities.
Significance of Cape Lookout National Seashore
Cape Lookout National Seashore is nationally recognized as an
outstanding example of a dynamic natural coastal barrier island system.
Cape Lookout is designated as a unit of the Carolinian-South Atlantic
Biosphere Reserve, United Nations Educational, Scientific and Cultural
Organizations (UNESCO) Man and the Biosphere Reserve Program. The park
contains:
Cultural resources rich in the maritime history of
humankind's attempt to survive at the edge of the sea; and
Critical habitat for endangered and threatened species and
other unique wildlife including the legislatively protected wild horses
of Shackleford Banks.
Authority and Jurisdiction
Under the National Park Service Organic Act of 1916 (Organic Act)
(16 U.S.C. 1 et seq.) Congress granted the NPS broad authority to
regulate the use of the Federal areas known as national parks. In
addition, the Organic Act authorizes the NPS, through the Secretary of
the Interior, to ``make and publish such rules and regulations as he
may deem necessary or proper for the use and management of the parks *
* *.''
16 U.S.C. 1a-1 states, ``The authorization of activities shall be
conducted in light of the high public value and integrity of the
National Park System and shall not be exercised in derogation of the
values and purposes for which these various areas have been established
* * *'' (16 U.S.C. 3).
As with the United States Coast Guard (USCG), NPS's regulatory
authority over waters subject to the jurisdiction of the United States,
including navigable waters and areas within their ordinary reach,
derives from the U.S. Constitution. In regard to the NPS, based upon
the Property and Commerce Clauses, Congress in 1976 directed the NPS to
``promulgate and enforce regulations concerning boating and other
activities on or relating to waters within areas of the National Park
System, including waters subject to the jurisdiction of the United
States * * *.'' (16 U.S.C. 1a-2(h)). In 1996, the NPS published a final
rule (61 FR 35136, July 5, 1996), amending 36 CFR 1.2(a)(3) to clarify
its authority to regulate activities within the National Park System
boundaries occurring on waters subject to the jurisdiction of the
United States.
Motorboats and other watercraft have been in use at Cape Lookout
National Seashore since the park was established in 1966. It is unknown
when PWC use first began at the national seashore. In compliance with
the settlement with Bluewater Network, the national seashore closed to
PWC use in April 2002. Personal watercraft are prohibited from
launching or landing on any lands, boat ramps or docks within the
boundaries of the national seashore. Personal watercraft may not be
towed on trailers or carried on vehicles within national seashore
boundaries except at the Harker's Island unit. This closure pertains to
all of the barrier islands within the national seashore and the waters
on the soundside of the islands within 150 feet of the mean low
waterline. Outside of the park boundary, PWC use is governed by North
Carolina PWC regulations. At present, the areas that were previously
used by PWC owners for landing are closed with signs.
Prior to the PWC closure, all areas of the park were open to PWC
use. However, the majority of PWC use was concentrated in two areas of
the national seashore that receive the heaviest visitor day-use in the
park: (1) On the sound-side of South Core Banks at the Lighthouse (from
the Lighthouse dock through Barden Inlet and Lookout Bight), and (2)
the Shackleford Banks from Wade Shores west to Beaufort Inlet. Personal
watercraft use of ocean beaches was rare due to rough surf conditions
in the ocean and the hazard of beaching PWC in the ocean surf. Some PWC
use occurred along North and South Core Banks from Portsmouth Village
at the northern end of the national seashore to the lighthouse. This
use was infrequent because of the prevalence of marshes and general
lack of sound-side beaches along Core Banks, the large expanse of open
water in Core Sound between the barrier islands and mainland North
Carolina, and the low population of the adjacent communities in the
``down east'' as this portion of the national seashore is known
locally. At public meetings held in October 2001, several participants
indicated they had used their PWC to travel from locations such as
Atlantic and Davis to the barrier islands.
The popularity of Cape Lookout and Shackleford Banks where PWC use
was concentrated can be attributed to the excellent soundside beaches
in these areas, the attraction of the Cape Lookout lighthouse,
traditional use of Shackleford Banks, their proximity to major inlets,
and their close proximity to the three largest coastal population
centers in Carteret County: Atlantic Beach, Morehead City, and
Beaufort.
NPRM and Environmental Assessment
On December 29, 2005, the National Park Service published a Notice
of Proposed Rulemaking (NPRM) for the operation of PWC at Cape Lookout
National Seashore (70 FR 77089). The proposed rule for PWC use was
based on alternative B (one of three alternatives considered) in the
Environmental Assessment (EA) prepared by NPS for Cape Lookout National
Seashore. The EA was open for public review and comment from January
24, 2005 to February 24, 2005. Copies of the EA may be downloaded at
http://www.nps.gov/calo/parkplan.htm.
The purpose of the EA was to evaluate a range of alternatives and
strategies for the management of PWC use at Cape Lookout National
Seashore to ensure the protection of park resources and values while
offering recreational opportunities as provided for in the National
Seashore's enabling legislation, purpose, mission, and goals. The
analysis assumed alternatives would be implemented beginning in 2003
and considered a 10-year period, from 2003 to 2013.
The EA evaluated three alternatives concerning the use of PWC at
Cape Lookout National Seashore. The alternatives considered include:
[[Page 53022]]
No-Action Alternative: Do not reinstate PWC use within the
national seashore. No special regulation would be promulgated.
Alternative A: Reinstate PWC use as previously managed
under a special regulation.
Alternative B: Reinstate PWC use under a special NPS
regulation with additional management prescriptions.
Based on the analysis prepared for PWC use at Cape Lookout National
Seashore, alternative B is considered the environmentally preferred
alternative because it best fulfills park responsibilities as trustee
of sensitive habitat; ensures safe, healthful, productive, and
aesthetically and culturally pleasing surroundings; and attains a wider
range of beneficial uses of the environment without degradation, risk
of health or safety, or other undesirable and unintended consequences.
This final rule contains regulations to implement alternative B at
Cape Lookout National Seashore.
Summary of Comments
A proposed rule on PWC use in the Cape Lookout National Seashore
(Cape Lookout) was published in the Federal Register for public comment
on December 29, 2005, with the comment period lasting until February
27, 2006. NPS received 1,685 timely written pieces of correspondence
regarding the EA and proposed regulation. Of the pieces of
correspondence, 5 were from government agencies, 11 were from
businesses, conservation groups, or recreation groups, and 1,669 were
from unaffiliated individuals. A total of 148 comments supported
alternative A, 25 comments supported alternative B, 4 comments opposed
alternative B, 1519 comments supported the no action alternative, and
11 comments opposed the no action alternative. Within the analysis, the
term ``commenter'' refers to an individual, organization, or public
agency that responded. The term ``comments'' refers to statements made
by a commenter.
General Comments
1. Several commenters suggested that the access restrictions,
closures, and boating rules should be applied equally to all motorized
vessels, and not just to PWC.
NPS Response: As described under the Scope of the Analysis in the
Purpose and Need section of the EA, the focus of the EA is to define
management alternatives specific to PWC use. The plan analyzed a
variety of impact topics to determine if personal watercraft use was
consistent with the park's enabling legislation and management goals
and objectives. The goal of the EA was not to determine if these
restrictions should also be applied to boats. Cape Lookout will
consider subsequent rulemaking to address this issue for other
watercraft and if subsequent rulemaking proceeds, that action would be
subject to NEPA analysis and public comment.
2. One commenter stated that there is a lack of site-specific data
in the EA.
NPS Response: The scope of the EA did not include the conduct of
site-specific studies regarding potential effects of PWC use on
wildlife species, submerged aquatic vegetation beds, or visitor
experience at Cape Lookout National Seashore. Analysis of potential
impacts of PWC use on wildlife, submerged aquatic vegetation beds, and
visitor experience at the national seashore was based on best available
data, input from park staff, and the results of analysis using that
data.
3. One commenter stated that the current EA does not discuss 40 CFR
1502.22 of the Council on Environmental Quality (CEQ) National
Environmental Policy Act (NEPA) Regulations, which tells agencies that
they have to make it clear when information is incomplete or
unavailable.
NPS Response: The EA discusses Sec. 1502.22 of the CEQ NEPA
Regulations in the Environmental Consequences section under the Summary
of Laws and Policies on page 92. The EA mentions in several places that
data is unavailable or had not been collected, including soundscapes
and wildlife and wildlife habitat sections. Best available data,
literature, and consultation with subject matter experts were used to
determine impacts, as disclosed in the EA.
4. One commenter stated that any attempt to bar PWC or disparately
regulate PWC would transgress NPS' regulatory duties and would be
arbitrary and capricious in light of the EA's findings.
NPS Response: Cape Lookout National Seashore was established in
1966. The purpose of Cape Lookout is to conserve and preserve for
public use and enjoyment the outstanding natural, cultural, and
recreational values of a dynamic coastal barrier island environment for
future generations. The preferred alternative meets the objectives of
the national seashore to a large degree, as well as meeting the purpose
and need for action, and therefore is within the legislative and
regulatory duties of Cape Lookout National Seashore.
5. One commenter stated that PWC use conflicts with NPS' mission
and purpose.
NPS Response: Cape Lookout National Seashore was established to
conserve and preserve for public use and enjoyment the outstanding
natural, cultural, and recreational values of a dynamic coastal barrier
island environment for future generations. The national seashore serves
as both a refuge for wildlife and a pleasuring ground for the public,
including developed visitor amenities. Under this regulation PWC use is
limited to providing a means of transportation to the island for the
user to enjoy the natural, cultural, and recreational values of Cape
Lookout National Seashore.
6. One commenter stated that the EA relies upon incorrect
information regarding PWC numbers in the U.S. and uses outdated data
from 2001 to guide its decision making process.
NPS Response: A check of the National Marine Manufacturers
Association (NMMA) Web site revealed that indeed, PWC numbers for the
years 2000 and 2001 are higher than quoted in the EA. Regardless, these
are nationwide PWC numbers that were not used in the impacts analysis.
The numbers used in the impacts analysis were park-specific, based on
available visitor data and observations by Cape Lookout National
Seashore staff.
7. One commenter stated that NPS has miscalculated the population
growth rate of PWC.
NPS Response: The numbers used in the impacts analysis were park-
specific, based on available visitor data, park ranger counts in 2000
and 2001, and observations by seashore staff. They were not based on
USCG data.
8. One commenter is concerned that the current EA is being
politically manipulated in order to reauthorize PWC operation.
NPS Response: Due to the increased level of public comment, Cape
Lookout reanalyzed the issues and impact topics described in the 2001
Determination in more detail in the EA. The 2001 Determination can be
viewed at: http://www.nps.gov/calo/parkplan.htm. The results of
the in-depth analysis in the EA indicated that impacts range from
negligible to moderate for all impact topics, and the NPS chose
alternative B as the preferred alternative.
9. One commenter stated that the Proposed Rule should be redrafted
to incorporate the ban on PWC that exists outside of NPS General
Regulation.
NPS Response: The ban or prohibition that exists at Cape Lookout is
the result of NPS General Regulations that were promulgated in 2000 and
took effect in 2002. This was a servicewide prohibition and affected
all parks without special regulations. This
[[Page 53023]]
rulemaking, or special regulation, will open Cape Lookout to PWC use,
with restrictions. Only parks with special regulations can allow PWC
use.
10. One commenter stated that PWC are designated as Class A boats
by the USCG, and are subject to the same rules and registration fees as
all other powered craft.
NPS Response: Yes, and the NPS adopts applicable USCG regulations
which are found in Title 33 CFR as well as applicable State laws and
regulations within whose exterior boundaries a park is located.
Therefore PWC are subject to the same rules and registration fees as
all other powered craft.
11. One commenter asked why the PWC closure was rescinded in 2001,
and why NPS wants to take the proposed action.
NPS Response: Due to the increased level of public comment and
congressional interest, Cape Lookout rescinded the 2001 closure to
allow the issues and impact topics described in the 2001 Determination
to be considered in more detail in the EA. The 2001 Determination can
be viewed at: http://www.nps.gov/calo/parkplan.htm. As described in the
EA, alternative B is the preferred alternative because, with
limitations on PWC use and other mitigation, impacts can be minimized
and managed.
12. One commenter stated that the spread of exotic species related
to PWC operation is overlooked in the EA.
NPS Response: This topic has been addressed in the errata to the EA
as an issue that was considered but not further evaluated. After
consultation with subject matter experts and available data, no exotic
species are known to occur in areas accessible by PWC within Cape
Lookout National Seashore.
13. One commenter disagrees with the cumulative impacts analysis.
NPS Response: NPS acknowledges that the area around Cape Lookout
National Seashore is being developed and this may result in increased
PWC use. However, the EA shows that allowing limited PWC access at Cape
Lookout National Seashore, will not result in more than negligible to
minor cumulative impact, even when all motor boats are included in the
analysis.
14. The EA and rule text should be rewritten to state that all
obligations and restrictions would be imposed on the PWC operator, not
the PWC equipment. Organization of the rule should also be improved.
NPS Response: The text in the rule, errata to the EA, and the
Finding Of No Significant Impact (FONSI) has been clarified to state
that the restrictions will be imposed on the PWC operator, not the PWC
equipment. Organization of the rule has also been improved and text was
clarified.
Comments Regarding Alternatives
15. One commenter stated that this environmental analysis could
benefit greatly by constructing an alternatives matrix that shows on
one axis the alternatives and on the other axis environmental
conditions that might be affected.
NPS Response: Table A: Summary of the Impact Analysis on page v of
the EA provides an overview of which resource topics would be affected
by each alternative. Alternatives A and B would impact water quality,
air quality, soundscapes, shoreline and submerged aquatic vegetation,
wildlife, aquatic fauna, threatened and endangered species, visitor use
and experience, visitor conflicts and safety, cultural resources, and
socioeconomics. Under the no-action alternative, none of the impact
topics would be impacted by PWC since they would be banned, but all of
the impact topics would be impacted to some capacity because of the
cumulative impacts from boats.
16. One commenter stated that the alternative to limit PWC use by
season or time of day was considered but not analyzed further. However,
it could make a viable alternative because it would ``minimize
conflicts with other users in congested areas,'' which could be an
important purpose for this action.
NPS Response: Time of day restrictions already exist because North
Carolina PWC regulations prohibit the use of PWC from sunset to sunrise
and have been adopted by the NPS. Limiting PWC use by season was not
considered viable since few defensible reasons were identified to
exclude PWCs at one time of year or another. The most obvious reason to
limit access by season, for protection of birds and endangered species
from access by PWCs, other boats, vehicles and pedestrians, is already
managed by general closures. Monitoring of bird nesting areas and
implementation of closures is routinely accomplished by the park
resource management staff.
17. One commenter stated that the following three sections in the
EA, ``Unavoidable Adverse Impacts,'' ``Loss in Long-term Availability
or Productivity to Achieve Short-term Gain,'' and ``Irreversible or
Irretrievable Commitments of Resources,'' pose some serious
difficulties for the environmental impact analysis as a whole.
NPS Response: Additional language has been added on the errata to
the EA for the ``Unavoidable Adverse Impacts'' section to address the
no-action alternative. The section ``Loss in Long-term Availability or
Productivity to Achieve Short-Term Gain'' has been removed as per the
errata because this section is required in Environmental Impact
Statements, but is optional in EAs.
The section ``Irreversible or Irretrievable Commitments of
Resources'' discusses the minor use of fossil fuels to power PWC being
an irretrievable commitment of this resource. Considering the very
small number of PWC operators that use Cape Lookout National Seashore
each year, which is estimated as less than one percent of visitors, the
implementation of alternative B would not have more than a minor impact
on irretrievable resources. Alternative B was identified as the
environmentally preferred alternative because it meets the criteria
established by the Council on Environmental Quality and the Department
of the Interior (Department Manual) and also meets the purpose, needs,
and objectives of this PWC EA.
18. Several commenters stated that alternative B does not merit
status as the environmentally preferred alternative and should be
rejected because it discriminates against PWC, unreasonably restricts
PWC use, jeopardizes the safety of PWC users, motorized boaters and
swimmers, and undermines the park's regulatory objectives.
NPS Response: The EA was written to evaluate the appropriateness of
PWC use within the National Seashore. The objective of the EA, as
described in the ``Purpose and Need'' Chapter, was to evaluate a range
of alternatives and strategies for the management of PWC use in order
to ensure the protection of park resources and values, while offering
recreational opportunities as provided in the enabling legislation,
purpose, mission, and goals. An analysis of personal watercraft use and
the impact topics was provided under each alternative. The EA was
designed to determine if PWC use, not motorized boat use in general,
was consistent with the park's enabling legislation and management
goals and objectives.
19. Several commenters are concerned that the preferred alternative
may violate the Organic Act by allowing the use of personal watercraft
within Cape Lookout, which they believe will impair park resources or
result in the derogation of park resources and values.
NPS Response: The ``Summary of Laws and Policies'' section in the
``Environmental Consequences'' chapter of the EA summarizes the three
[[Page 53024]]
overarching laws that guide the National Park Service in making
decisions concerning protection of park resources. These laws, as well
as others, are also reflected in NPS Management Policies. An
explanation of how the Park Service applied these laws and policies to
analyze the effects of personal watercraft on Cape Lookout National
Seashore resources and values can be found under ``Impairment
Analysis'' in the ``Methodology'' section of the EA.
Impairment that is prohibited by the Organic Act and General
Authorities Act is an impact that, in the professional judgment of the
responsible NPS manager, would harm the integrity of park resources or
values, including the opportunities that otherwise would be present for
the enjoyment of those resources or values.
An impairment to a particular park resource or park value may be
indicated when the impact reaches the magnitude of ``major,'' as
defined by its context, duration, and intensity. For each impact topic,
the EA establishes thresholds or indicators of magnitude of impact. For
each impact topic, when the intensity approached ``major,'' the park
would consider mitigation measures to reduce the potential for
``major'' impacts, thus reducing the potential for impairment.
For the PWC regulations at Cape Lookout National Seashore the
National Park Service has determined in the EA that the preferred
alternative would not result in impairment of park resources or values.
20. Several commenters support alternative B.
NPS Response: Comment noted. NPS chose alternative B because it
appears to meet the needs of most park visitors while continuing to
protect the environment.
21. A commenter stated that the PWC use restrictions as stated in
the proposed rule are vague, confusing, and defective from an
enforcement standpoint. There is also redundancy in the description.
NPS Response: The description of alternative B states ``PWC would
be allowed to access these areas * * * by remaining perpendicular to
shore and operating at flat wake speed.'' This means that any other
type of use would continue to be prohibited. All PWC use is prohibited
in the National Park System by general regulation except as authorized
by park specific special regulation. Language in the rule, errata to
the EA, and the FONSI has been rewritten to clarify the type of PWC use
authorized and locations within the national seashore where it is
permitted.
22. One commenter stated that management options such as flat wake
zones, set backs, time and date restrictions were considered in the
national rule and were determined to be too expensive to enforce and
inadequate to protect park system resources.
NPS Response: After analysis as part of the NEPA process, Cape
Lookout National Seashore is proposing to implement flat wake
restrictions for better protection of park resources and visitor
safety. The flat wake restrictions should not be difficult to enforce
at Cape Lookout because the restriction will apply to PWC in all
locations within the park.
23. One commenter stated that Alternative B undermines NPS's safety
objective and endangers PWC users and other park visitors, bans PWC use
in some park locations without justification, and severely limits use
within the designated use areas, and that the EA overstates the
potential impact of PWC use on park resources.
NPS Response: The EA analyzed a variety of impact topics to
determine if personal watercraft use was consistent with the park's
enabling legislation and management goals and objectives. As a result
of this analysis, it was determined that the management prescriptions
under alternative B, Reinstate PWC Use with Additional Management
Prescriptions, would best protect natural and cultural resources,
mitigate PWC safety concerns, provide for visitor health and safety,
and enhance overall visitor experience. The plan was designed to
determine if PWC use, not motorboat use in general, was consistent with
the park's enabling legislation and management goals and objectives.
24. Many commenters support the no-action alternative. These
commenters state that the EA provides no basis for overturning the Park
Service's 2001 determination to ban PWC operation at Cape Lookout and
that the preferred alternative breaks Federal law and fails to address
many of the problems associated with PWC operation identified in the
2001 determination. Finally, these commenters believe the EA overlooks
important research, reaches conclusions without supporting
documentation or scientific evidence, and appears to violate the terms
of the court-ordered settlement agreement with Bluewater Network.
NPS Response: A summary of the NPS rulemaking and associated
personal watercraft litigation is provided in Chapter 1, Purpose of and
Need for Action, Background. NPS believes it has complied with the
court order and has assessed the potential impacts of personal
watercraft on those resources identified in the settlement agreement,
as well as other resources that could be affected. This analysis was
done for every applicable impact topic with the best available data, as
required by regulations (40 CFR 1502.22). Where data was lacking, best
professional judgment prevailed using assumptions and extrapolations
from scientific literature, other park units where personal watercraft
are used, and personal observations of park staff. NPS believes that
the EA is in full compliance with the court-ordered settlement and that
the rationale for limited use within the national seashore has been
adequately analyzed and explained.
Due to the increased level of public comment and congressional
interest, Cape Lookout reconsidered the issues and impact topics
described in the 2001 Determination in more detail in the EA. The 2001
Determination can be viewed at: http://www.nps.gov/calo/parkplan.htm.
The results of the in-depth analysis in the EA indicated that potential
impacts under Alternative B range from negligible to moderate for all
impact topics, and chose Alternative B as the preferred alternative.
25. Some commenters believe the no-action alternative discriminates
against PWC operators.
NPS Response: The objective of the EA, as described in the
``Purpose and Need'' Chapter, was to evaluate a range of alternatives
and strategies for the management of PWC use in order to ensure the
protection of park resources and values, as provided in the enabling
legislation, purpose, mission, and goals.
26. The North Carolina Department of Environment and Natural
Resources, Division of Coastal Management (DCM) suggests that a
monitoring program be implemented to evaluate whether the adverse
environmental effects of implementing the proposed action are, as
expected, insignificant.
NPS Response: The restrictions for Cape Lookout are only associated
with the area that is within the park boundary. The only water area
within the boundary is on the sound side where the boundary is 150 feet
from low water. It would be difficult to differentiate any impacts that
were due to PWC use outside the park boundary (150-foot zone) compared
to use that is inside the park boundary (150-foot zone), since most of
the aquatic resources move freely in and out of these areas, except for
direct impacts on submerged aquatic vegetation (SAV). In addition, SAV
only occurs in one area that is proposed to be reopened to PWC use
under alternative B. Marine mammals would also not be likely to use the
area within 150-feet from shore because it is too shallow. It would be
[[Page 53025]]
difficult to differentiate impacts between PWC use and motorboat use
because PWC use is very low compared to motorboat use, and motorboats
use both areas inside and outside the 150-foot zone.
27. One commenter suggested reducing the number of access points to
those already developed. Specifically, eliminate the following four
access points from the regulation: Milepost 11B, Old Drum Inlet, New
Drum Inlet, and Power Squadron Spit.
NPS Response: The access points at Milepost 11B, Old Drum Inlet,
and New Drum Inlet were chosen because they provide access to the
seashore for those people that live in the ``down east'' area from
Davis to Cedar Island. Without including these access points, there
would be few opportunities for PWC access from towns north of Davis.
These sandy inlets are convenient areas to land a boat or PWC and allow
easy access to the ocean. The use of these areas also provides
protection to the remaining marshy areas of the sound, where submerged
aquatic vegetation is more likely to occur.
Power Squadron Spit was included because it provides access to the
southern-most portion of the park, which is a popular day-use area.
This area near Lookout Bight consists of a protected sandy beach, and
is heavily used by larger boats that utilize PWC or smaller inflatable
boats to access the shore.
Comments Regarding Water Quality
28. One commenter stated that, because the EA has not properly
accounted for the pace at which the PWC manufacturers are converting to
cleaner-running engine technologies that meet the EPA standards, the EA
overstates the potential water quality impacts of resuming PWC use.
NPS Response: The assumption of all personal watercraft using 2-
stroke engines in 2002 is recognized as conservative. It is protective
of the environment yet follows the emission data available in
California Air Resources Board (CARB) (1998) and Bluewater Network
(2001) at the time of preparation of the EA. The emission rate of 3
gallons per hour at full throttle is a mid-point between 3 gallons in
two hours (1.5 gallons per hour; NPS 1999) and 3.8 to 4.5 gallons per
hour for an average 2000 model year personal watercraft (Bluewater
Network 2001). The assumption also is reasonable in view of the
initiation of production line testing in 2000 (EPA 1997) and expected
full implementation of testing by 2006 (EPA 1996).
Reductions in emissions used in the water quality impact assessment
are in accordance with the overall hydrocarbon emission reduction
projections published by the EPA (1996). EPA (1996) estimates a 52%
reduction by personal watercraft by 2010 and a 68% reduction by 2015.
The 50% reduction in emissions by 2013 (the future date used in the EA)
is a conservative interpolation of the emission reduction percentages
and associated years (2010 and 2015) reported by the EPA (1996) but
with a one-year delay in production line testing (EPA 1997).
Despite these conservative estimates, impacts to water quality from
personal watercraft are judged to be negligible for all alternatives
evaluated. Cumulative impacts from personal watercraft and other
outboard motorboats also are expected to be negligible. If the
assumptions used were less than conservative, the conclusions could not
be considered protective of the environment, while still being within
the range of expected use.
29. One commenter stated that the EA's analysis is based on faulty
premises that reflect worst case conditions.
NPS Response: The estimates of personal watercraft use and
emissions are based on the best information available at the time of
preparation of the EA and are meant to be conservative (i.e.,
protective of the environment). By using conservative input assumptions
in estimating impact to water quality, the probability of
underestimating impacts is minimized.
The evaporation rate for benzene (half-life of approximately 5
hours at 25 [deg]C) is based on information presented in EPA (2001) and
in Verschuren (1983). Because impacts to water quality were determined
to be negligible before any discussion or application of this
evaporation rate, it was not discussed in the impact assessments of the
alternatives.
As stated in Appendix A of the EA, the concentration of
benzo(a)pyrene can be up to 2.8 mg/kg (or 2.07 mg/L) (Gustafson et al.
1997). Because this concentration could be found in the gasoline used
in Cape Lookout, it was used to be protective of the environment. It is
not an unrealistic assumption. Annual sales of personal watercraft
(200,000 units) are mentioned on page 7 of the EA. However, the text
directs the reader to table 1 which shows that ownership declined after
1995. The discussion of national trends is not germane to the estimate
of PWC use in the national seashore since the numbers of personal
watercraft and hours of use are based on observations by park staff
(see page 102 of the EA).
In summary, if changes in evaporation rates, concentrations of
gasoline constituents, sales of personal watercraft, and rates of
replacement of older personal watercraft were made as suggested, the
conclusions of negligible impacts from personal watercraft would not
change, because ``negligible'' is the lowest impact level that can be
used in the EA (see page 106). However, these conclusions would no
longer be considered as conservative and could be challenged by other
parties.
30. One commenter believes the EA ignores sales trends and relies
on outdated statistics and assumptions, which inflate PWC sales and
exaggerate PWC emissions.
NPS Response: Annual sales of personal watercraft (200,000 units)
are mentioned on page 6 of the EA. However, the text directs the reader
to table 1, which shows that ownership declined after 1995. The
discussion of national trends is not germane to the estimate of PWC use
in the national seashore since the numbers of personal watercraft and
hours of use are based on observations by park staff (see page 102 of
the EA) and not national trends.
If national sales of personal watercraft and rates of replacement
of older personal watercraft were considered, the conclusions for
impacts to water quality from personal watercraft would still be
negligible.
31. One commenter stated that most PWC manufacturers have changed
to 4-cycle engines, which do not mix oil with the gasoline.
NPS Response: The assumption of all PWC using 2-stroke engines in
2003 is recognized as conservative. It is protective of the environment
and follows the emission data available in CARB (1998) and Bluewater
Network (2001) at the time of preparation of the EA. Emission rates
were assumed to be reduced by 8 percent in 2003 in accordance with the
EPA's estimate of hydrocarbon reduction (see page 104 of the EA).
Despite these conservative estimates, impacts to water quality from PWC
are judged to be negligible for all gasoline constituents, all areas,
and all alternatives evaluated.
32. One commenter stated that there is some confusion on
irreversible or irretrievable commitments of resources should the
proposed action be implemented.
NPS Response: Agreed, there is confusion regarding the definitions
of irreversible and irretrievable, but the confusion does not extend to
the Cape Lookout EA. The National Environmental Policy Act (NEPA),
[[Page 53026]]
Section 102(2)(C)(v), does not distinguish between the two terms but
instead lumps them together: ``Any irreversible and irretrievable
commitments * * *'' and many EAs and EISs also simply lump the two
terms together. While the two terms in question are not defined in NEPA
or in the National Park Service Director's Order 12 (DO-12),
they are defined in the National Park Service Handbook that accompanies
DO-12 as follows: ``Irreversible impacts are those effects that cannot
be changed over the long term or are permanent. An effect to a resource
is irreversible if it (the resource) cannot be reclaimed, restored, or
otherwise returned to its condition before the disturbance * * * An
irretrievable commitment of resources refers to the effects to
resources that, once gone, cannot be replaced.'' It is important to not
worry about the semantics of these terms and instead be thorough in the
disclosure to the public of any long-term, permanent effects to the
park resources.
The significance of personal watercraft using fossil fuel at Cape
Lookout National Seashore (as it may affect air and water quality) has
not been underestimated. In fact, the potential for impacts on these
resources is quantitatively evaluated in the EA. The results indicate
that PWC impacts to water quality and to air quality are negligible or
nonexistent for all alternatives considered. These impacts could be
termed inconsequential, especially in the context of other motorboats
that outnumber personal watercraft 10 to 1 at the national seashore
(see Table 15 of the EA).
33. One commenter stated that the water quality analysis does not
fully account for the rapid rate that unburned gasoline emitted from
PWC evaporates from the water.
NPS Response: Impacts to human health and the environment would be
negligible for all gasoline constituents, all alternatives, and all
areas. The term ``negligible'' is the lowest (least significant impact
threshold) term available to describe impacts in the EA (see page 106).
Because all impacts to water quality were judged to be negligible, the
effect of evaporation was not discussed in detail in the results.
However, the effect of evaporation/volatilization of gasoline
constituents is discussed in two locations under ``Methodology and
Assumptions.'' These processes are mentioned in paragraphs 5 and 7 on
page 103 of the EA. Volatilization of gasoline constituents (BTEX,
methyl tertiary-butyl ether (MTBE), and petroleum aromatic hydrocarbons
(PAHs)) also is discussed in Appendix A: Approach to Evaluating Surface
Water Quality Impacts.
Comments Regarding Air Quality
34. One commenter stated that NPS does not sufficiently account for
the rapid engine conversion that is occurring and improperly overlooks
the emissions reductions that the PWC companies have already achieved.
NPS Response: A conservative approach was used in the analysis,
since the numbers of PWCs already converted to four-stroke engines are
not known. In addition, the EPA model takes into account the reduction
in emissions over time. Even with the conservative approach, the
analysis for alternative B presented in the EA indicates that current
PWC use at Cape Lookout National Seashore results in negligible impacts
to air quality.
35. One commenter stated that, while the EA correctly concludes
that the short- and long-term human health impact from PWC emissions of
hydrocarbons (HC) and nitrogen oxides (NOX) under
alternatives A and B would be negligible, NPS nevertheless overstates
actual emissions levels for these constituents.
NPS Response: It is agreed that the relative quantity of HC +
NOX are a very small proportion of the county-based
emissions and that this proportion will continue to be reduced over
time. The EA takes this into consideration in the analysis.
For consistency and conformity in approach, NPS has elected to rely
on the assumptions in the 1996 Spark Ignition Engine Rule which is
consistent with the widely used NONROAD emissions estimation model. The
outcome is that estimated emissions from combusted fuel may be more
conservative, compared to actual emissions.
36. One commenter stated that the EA's use of a study by Kado et
al. is outdated, and the EA inaccurately uses the results of this
study.
NPS Response: The criteria for analysis of impacts from PWC to
human health are based on the National Ambient Air Quality Standards
(NAAQSs) for criteria pollutants, as established by the EPA under the
Clean Air Act, and on criteria pollutant annual emission levels. This
methodology was selected to assess air quality impacts for all NPS EAs
to promote regional and national consistency, and identify areas of
potential ambient standard exceedances. PAHs are not assessed
specifically as they are not a criteria pollutant. However, they are
indirectly included as a subset of total hydrocarbons, which are
assessed because they are the focus of the EPA's emissions standards
directed at manufacturers of spark ignition marine gasoline engines.
Neither peak exposure levels nor National Institute for Occupational
Safety and Health (NIOSH) nor Occupational Safety and Health
Administration (OSHA) standards are included as criteria for analyzing
air quality related impacts except where short-term exposure is
included in a NAAQS.
The Kado Study presented the outboard engine air quality portion of
a larger study described in Outboard Engine and Personal Watercraft
Emissions to Air and Water: A Laboratory Study (CARB 2001). In the CARB
report, results from both outboards and personal watercraft (2-stroke
and 4-stroke) were reported. The general pattern of emissions to air
and water shown in CARB (2001) was 2-stroke carbureted outboards and
personal watercraft having the highest emissions, and 4-stroke outboard
and personal watercraft having the lowest emissions. The only
substantive exception to this pattern was in NOX emissions
to air- 2-stroke carbureted outboards and personal watercraft had the
lowest NOX emissions, while the 4-stroke outboard had the
highest emissions. Therefore, the pattern of emissions for outboards is
generally applicable to personal watercraft and applicable to outboards
directly under the cumulative impacts evaluations.
37. One commenter stated that a proper PAH analysis, using the
analytical approach set forth in the Lake Mead Report, refutes
unsubstantiated claims by PWC opponents that PAH emissions from PWC
operating in the Cape Lookout National Seashore will endanger human
health.
NPS Response: The EPA data incorporated into the 1996 Spark
Ignition Marine Engine rule were used as the basis for the assessment
of air quality, and not the Sierra Research data. It is agreed that
these data show a greater rate of emissions reductions than the
assumptions in the 1996 Rule and in the EPA NONROAD Model, which was
used to estimate emissions.
However, the level of detail included in the Sierra Research report
has not been carried into the EA for reasons of consistency and
conformance with the model predictions. Most states use the EPA NONROAD
Model for estimating emissions from a broad array of mobile sources. To
provide consistency with state programs and with the methods of
analysis used for other similar NPS assessments, NPS has elected not to
base its analysis on focused research
[[Page 53027]]
such as the Sierra Report for assessing PWC impacts.
It is agreed that the relative quantity of HC + NOX are
a very small proportion of the county-based emissions and that this
proportion will continue to be reduced over time. The EA takes this
into consideration in the analysis. For consistency and conformity in
approach, the NPS has elected to rely on the assumptions in the 1996
Spark Ignition Marine Engine Rule, which are consistent with the widely
used NONROAD emissions estimation model. The outcome is that estimated
emissions from combusted fuel may be more conservative, compared to
actual emissions.
38. One commenter believes that the Sierra Research emissions
analysis should be used in the air quality analysis.
NPS Response: The EPA data incorporated into the 1996 Spark
Ignition Marine Engine rule were used as the basis for the assessment
of air quality, and not the Sierra Research data. It is agreed that the
Sierra Research data show a greater rate of emissions reductions than
the assumptions in the 1996 Rule and in the EPA NONROAD Model, which
NPS used to estimate emissions. However, the level of detail included
in the Sierra Research report was not carried into the EA for reasons
of consistency and conformance with the model predictions. Most states
use the EPA NONROAD Model for estimating emissions from a broad array
of mobile sources. To provide consistency with state programs and with
the methods of analysis used for other similar NPS assessments, NPS has
elected not to base its analysis on focused research such as the Sierra
Report for assessing PWC impacts.
It is agreed that the relative quantity of HC plus NOX
are a very small proportion of the county-based emissions and that this
proportion will continue to be reduced over time. The EA takes this
into consideration in the analysis. For consistency and conformity in
approach, NPS has elected to rely on the assumptions in the 1996 Spark
Ignition Marine Engine Rule, which are consistent with the widely used
NONROAD emissions estimation model. The outcome is that estimated
emissions from combusted fuel may be more conservative compared to
actual emissions.
Comments Regarding Soundscapes
39. One commenter stated that in the 2005 EA, NPS concludes that
PWC operation would produce negligible to minor short-term impacts upon
the park's soundscape. NPS provides no new evidence for the EA's latest
noise conclusions, which directly contradicts the 2001 determination.
NPS Response: In the 2005 EA impacts to the soundscape in the
preferred alternative were evaluated using operational restrictions
such as requiring PWC to travel at a flat wake speed and limiting
access to specific locations. With these restrictions impacts were
determined to be adverse, short term, negligible to minor, depending
upon location. The 2001 determination was made using unrestricted
conditions that were in effect prior to the 2002 prohibition.
40. One commenter stated that there is no evidence that PWC noise
adversely affects aquatic fauna or animals. PWC typically exhaust above
the water at the air/water transition area. Consequently, most PWC
sound is transmitted through the air and not the water.
NPS Response: PWC exhaust is below or at the air/water transition
areas, not above the water. Sound transmitted through the water is not
expected to have greater than negligible adverse impacts on fish, and
the EA does not state that PWC noise adversely affects aquatic fauna.
41. One commenter questioned the PWC noise levels that were used in
the analysis.
NPS Response: A correction has been included in the errata to the
EA to indicate that one PWC would emit 68 to 76 A-weighted dB at 82
feet. Based on the PWC noise levels from the Glen Canyon study, two PWC
would emit 66 to 77 dB at 82 feet, 65 to 75 dB at 100 feet, and 59 to
69 dB at 200 feet. The noise levels of two PWC traveling together would
be less than the NPS noise limit of 82 dB at 82 feet for all
alternatives. Ambient sound levels at Cape Lookout National Seashore
vary due to the wide range of land cover types and visitor and other
activities within and near the national seashore. In addition to
intensity, other aspects of PWC noise were assessed, including changes
in pitch. The operation of PWC 50 feet from shore traveling at a flat
wake speed would have minor adverse affects on the soundscape. In most
locations, except in high use areas, natural sounds would prevail and
motorized noise would be very infrequent or absent.
42. One commenter stated that the steps North Carolina has taken to
limit boating noise will mitigate the potential impacts of PWC use on
the park's soundscapes.
NPS Response: Comment noted. Impacts to soundscapes under
alternative B are negligible to minor, depending on location.
43. Several comments stated that the EA's findings overstate the
potential sound impacts of PWC use and do not include any documented
complaint data about PWC noise.
NPS Response: Comment noted. Impacts to soundscapes under
alternative B are negligible to minor, depending on location. The EA
states that the level of sound impact associated with PWC use varies
based on location, time of day, and season. The EA also states that
sound impacts associated with PWC use would be most prevalent in
quieter areas. Analysis of potential impacts of PWC use relating to
sound was based on best available data, input from park staff, and the
results of analyses using that data.
44. One commenter stated that the EA exaggerates PWC's propensity
to become airborne.
NPS Response: NPS agrees that many PWC do not leave the water when
being operated. When required to operate at flat wake speed in Cape
Lookout National Seashore it is highly unlikely that any PWC will leave
the water. Impacts to soundscapes from PWC under alternative B range
from negligible to minor, depending on the location within the park.
45. One commenter stated that the PWC manufacturers have made
significant progress in reducing PWC noise through technological
innovations.
NPS Response: NPS concurs that on-going and future improvements in
engine technology and design would likely further reduce noise emitted
from PWC. Even without the improvements the EA found impacts to
soundscapes under alternative B are negligible to minor, depending on
the location within the park.
46. One commenter stated that state legislation entitled the
``National Marine Manufacturers Association Model Noise Act''
establishes muffler requirements and maximum noise levels for PWC and
other motorized boats, so noise disturbances would be minimized.
NPS Response: NPS concurs that on-going and future improvements in
engine technology and design would likely further reduce noise emitted
from PWC. However, based on location and time, ambient noise levels at
the national seashore can range from negligible to moderate and
improved technology resulting in a reduction of noise emitted from PWC
would not significantly change impact thresholds.
Comments Regarding Shoreline and Submerged Aquatic Vegetation
47. A commenter stated that because PWC lack an exposed propeller,
they
[[Page 53028]]
can't damage seagrasses in shallow waters. Furthermore, the natural
forces at Cape Lookout have a greater impact on vegetation than PWC
use.
NPS Response: PWC do not have an exposed propeller but they do use
an engine that directs a substantial amount of water towards the bottom
at a high velocity. PWC can operate in waters less than a foot deep and
have the potential of disturbing the sediment and submerged aquatic
vegetation in shallow water areas. Disturbance of submerged aquatic
vegetation beds diminishes their ecological value and productivity,
affecting the entire ecosystem. As PWC are frequently operated in
shallow areas in a repetitive manner, impacts on submerged aquatic
vegetation beds can be severe. Natural forces may at times have a
greater impact but the NPS allows such to occur without interference.
48. A commenter stated that allowing PWC operators to access
shallow areas near the Cape Lookout Environmental Education Center dock
would greatly disturb the underwater substrate and shoreline.
NPS Response: The 10 designated access areas, which include the
area near the Cape Lookout Environmental Education Center dock, were
chosen to avoid marshes and high-congestion beach areas. Indirect
impacts from PWC use to shoreline vegetation would occur but would be
limited to the designated access areas and would therefore be
negligible to minor. Most of the access areas do not contain submerged
aquatic vegetation beds, so PWC operation in these areas would have
little potential to adversely impact this habitat. Additionally, the
flat-wake speed restriction would minimize the potential for PWC to
damage submerged aquatic vegetation beds through collision or uprooting
and would reduce sediment resuspension and its detrimental effects.
Comments Regarding Wildlife and Wildlife Habitat
49. One commenter stated that there are no documented cases of
deliberate harassment or collisions with wildlife by PWC users and
there is no evidence that PWC use disturbs wildlife along the
shoreline.
NPS Response: There is a potential for collision with or
disturbance of aquatic wildlife species. The determination of potential
for impacts to wildlife associated with PWC use is based on the
assessment of several potential stressors including potential
collision; noise; disruption of feeding, nesting, and resting
activities; sediment suspension; emissions, etc. The flat wake
requirement will reduce the level of PWC disturbance in the restricted
areas and in nearby marshes. This reduced speed level and the
requirement to travel perpendicular to the shoreline in designated
access areas is expected to have short-term, negligible to minor,
direct and indirect adverse impacts on aquatic wildlife species and
habitat.
50. One commenter stated that the EA cites only anecdotal accounts,
in which park staff supposedly observed PWC flushing terns and other
bird species, as support for its position that PWC use is more
disruptive to wildlife than other vessels.
NPS Response: The scope of the EA did not include the conduct of
site-specific studies regarding potential effects of PWC use on
wildlife species at Cape Lookout National Seashore. Analysis of
potential impacts of PWC use on wildlife at the national seashore was
based on best available data, input from park staff, and the results of
analysis using that data. The EA does not state that shorebirds were
observed being flushed from nests in the park.
51. A commenter believes that PWC are no more disruptive than other
forms of boating activity. Studies by Dr. James Rodgers of the Florida
Fish and Wildlife Conservation Commission have shown that PWC are no
more likely to disturb wildlife than any other form of human
interaction.
NPS Response: Some research indicates that PWC are no more apt to
disturb wildlife than are small outboard motorboats; however,
disturbance from both PWC and outboard motor boats does occur. Dr.
Rodgers recommends that buffer zones be established for all watercraft,
creating minimum distances between boats (personal watercraft and
outboard motorboats) and nesting and foraging waterbirds. The shoreline
restrictions limit access for PWC to 10 locations under alternative B
and require them to operate at a flat wake speed as an added
precaution. Impacts to wildlife and wildlife habitat under all the
alternatives were judged to be negligible to minor from all visitor
activities.
52. One commenter believes the Everglades Report has been wrongly
used in the wildlife analysis.
NPS Response: The reference to the Everglades Report at page iii of
the EA provides background regarding past actions taken by NPS with
respect to PWC use. The EA states that ``After studies in Everglades
National Park showed that PWC use resulted in damage to vegetation,
adversely impacted shorebirds, and disturbed the life cycles of other
wildlife, NPS prohibited PWC use by a special regulation at the park in
1994.'' This EA did not rely on the Everglades Report as a basis for
assessing potential impacts to park resources associated with PWC use.
53. One commenter stated that the EA puts forth a conflicting
position on the adequacy of new regulations to protect the park
environment and wildlife, as well as the resources available to
adequately enforce the NPS' new rules.
NPS Response: The NPS agrees that a total prohibition would be
easier to enforce. However, enforcement would also be required under
the no-action alternative. The seashore is fully aware that this new
regulation will require short-term changes and reallocations of assets
and resources, with an increase in education and enforcement. However,
this effort will generally need to be focused at popular boating use
areas that are already the focus of enforcement activity. Enforcement
of the April 22, 2002, prohibition of PWC required an increased focus
on education and PWC enforcement during routine patrols at a limited
number of popular use areas. This education and enforcement effort
became successful in about two boating seasons.
The majority of seashore users are law abiding and sensitive to the
special values of seashore waters and lands. An active education
program backed by a reasonable enforcement effort should, in a few
seasons, educate the PWC user to the requirements of the new
regulation. After an initial period of adjustment to the new
regulations, the small number of PWC users who encounter seashore
waters should be knowledgeable enough to abide by the law, and the
initial need for focused attention on PWC operators will diminish.
Additional water presence by park rangers and education are proven
methods of protecting resources for the future enjoyment of all
visitors, with the end result of enhancing the visitor experience.
54. One commenter stated that the EA reaches a different conclusion
regarding the appropriateness of PWC, compared to the 2001
determination.
NPS Response: Due to an increased level of public comment, Cape
Lookout reanalyzed the issues and impact topics described in the 2001
Determination in more detail in the EA. The 2001 Determination can be
viewed at: http://www.nps.gov/calo/parkplan.htm. The results of the in-
depth analysis in the EA indicated that alternative B, which provided
for limited access at flat wake speeds, would create acceptable impacts
that ranged from negligible to moderate for all impact topics.
Alternative B was chosen as the preferred alternative.
[[Page 53029]]
55. One commenter stated that the preferred alternative violates
the Marine Mammal Protection Act (MMPA), which requires Federal
agencies to prevent the ``take'' of marine mammals. Slow moving boats,
even ones operating at flat wake speed, can violate the MMPA
prohibition on harassment.
NPS Response: The EA states that implementing the preferred
alternative would be expected to have short-term, negligible to minor,
direct and indirect impacts to aquatic wildlife and habitats. The EA
states that flat wake zoning prescriptions and the implementation of
ten designated access areas would minimize potential for adverse
impacts.
56. One commenter stated that the EA fails to adequately
investigate the impact of the current PWC ban on biological migration
patterns.
NPS Response: The scope of the EA did not include the conduct of
surveys to determine potential effects of the current PWC ban on
biological use patterns in Cape Lookout National Seashore. Analysis of
potential impacts of PWC use on wildlife at the national seashore was
based on best available data, input from park staff, and the results of
analysis using that data.
Comments Regarding Visitor Use and Experience
57. One commenter stated that the EA overlooks the impact of
reauthorizing PWC operation and its impact upon visitor use patterns.
NPS should have conducted a visitor use survey over the past two years
to measure public support for the current PWC closures.
NPS Response: The comment is correct in stating that no new visitor
use surveys have been conducted since 1993. However, NPS received over
6,000 letters and emails on the issue since the initial PWC closure in
March 2001. To suggest the seashore is not current on the opinions of
the public on PWC is not an accurate statement concerning the NEPA and
rulemaking process.
58. One commenter stated that the national accident figures cited
in the document are dated and potentially misleading.
NPS Response: The factors described in the comment are recognized.
However, these factors are unlikely to fully explain the large
difference in percentages (personal watercraft are only 7.5% of
registered vessels, yet they are involved in 36% of reported
accidents). In other words, PWC are 5 times more likely to have a
reportable accident than are other boats. Despite these national
boating accident statistics, impacts of PWC use and visitor conflicts
are judged to be negligible relative to swimmers and minor relative to
other motorboats at the national seashore.
59. One commenter stated that the EA cites North Carolina state and
county accident data instead of park-specific data. Furthermore, PWC
users comprise only 1% of the total number of visitors to Cape Lookout
National Seashore; therefore the number of PWC in the park will be
relatively small and will not create unique or disproportionate safety
risks.
NPS Response: Although only one PWC-related injury has been
reported at Cape Lookout, much of the waters in the area are outside of
park boundaries and many incidents are likely not reported to any
agency. PWC speeds, wakes, and operations near other users can pose
hazards and conflicts, especially to canoeists and sea kayakers. As
stated in the EA, PWC have historically operated for longer periods of
time in the heavily used areas of the park, including the soundside of
Shackleford Banks and the cove at the Cape Lookout lighthouse,
increasing the opportunities for conflicts or accidents. Limiting PWC
use in these areas, coupled with flat wake speed requirements, would
reduce conflicts between PWC and other users.
60. One commenter stated that by restricting PWC use to ten
designated areas, alternative B concentrates PWC use in several popular
areas of the park, which increases the likelihood of potential conflict
with other visitors. Alternative B's restrictions do not apply to other
motorized vessels. The PWC-only flat wake zone will create serious
safety hazards for PWC users, and should be extended to all motorized
craft within park waters.
NPS Response: The 10 designated access areas were chosen to avoid
marshes and high-congestion beach areas. Implementation of a flat wake
zone will reduce potential impacts associated with high speed use in
near shore areas, as compared to use without the speed restriction.
When vessels, other than PWC, enter park waters, which extend into the
sound 150 feet, they normally operate at reduced speeds as they prepare
to anchor or dock, so they are traveling at speeds similar to those
required for PWCs. Vessels maneuvering in congested waters are
generally safer at slower speeds.
61. Commenters are concerned with the assumption that PWC will not
adversely impact public safety and that a majority of PWC users operate
their craft in a lawful manner. However, in 2001 the NPS reported that
PWC use ``pose[d] unacceptable risks'' to the safety of other visitors.
NPS Response: Due to an increased level of public comment, Cape
Lookout reanalyzed the issues and impact topics described in the 2001
Determination in more detail in the EA. The 2001 Determination can be
viewed at: http://www.nps.gov/calo/parkplan.htm. The results of the in-
depth analysis in the EA indicated that alternative B, which provided
for limited access at flat wake speeds would create acceptable impacts
that ranged from negligible to moderate for all impact topics.
Alternative B was chosen as the preferred alternative. Alternative B
also provides more enforcement and education for PWC users.
62. A commenter stated that documented visitor satisfaction when
PWC use was permitted was rated very good to excellent. Furthermore,
today's PWC owner typically uses the craft for family-oriented outings.
NPS Response: NPS agrees that some PWC operators are better
educated and are not reckless with their machines, and that many trips
are family-oriented. However, PWC use does vary, and many operators
still use the machines for ``thrill,'' including stunts, wake jumping,
and other more risky exercises. Some users can still create
disturbances or safety concerns, especially if children are operating
the vessel. Under alternative B, NPS is providing access to the park so
that PWC users can enjoy Cape Lookout National Seashore beaches and
other natural or cultural resources, but is restricting the use of PWCs
in park waters to prohibit the wave jumping and other similar behavior.
63. Several commenters stated that alternative B is inconsistent
with NPS' goal of avoiding the creation of additional enforcement
requirements, and that there are not enough enforcement officials to
keep PWC violations in check.
NPS Response: Both the no-action alternative and alternative B
requires enforcement action. Cape Lookout National Seashore is fully
aware that this new regulation will require short-term changes and
reallocations of assets and resources, with an increase in education
and enforcement. However, this effort will need to focus on popular
boating use areas that are already the focus of enforcement activity.
Enforcement of the April 22, 2002, ban of PWC at Cape Lookout National
Seashore required increased focus on education and PWC enforcement
during routine patrols at a limited number of popular use areas. This
education and enforcement effort was successful in two boating seasons.
The majority of national seashore users are law abiding and
sensitive to the special values of seashore waters
[[Page 53030]]
and lands. An active education program backed by a reasonable
enforcement effort should, in a few seasons, educate the PWC user to
the requirements of the new regulation. After an initial period of
adjustment to the new regulations, the small number of PWC users who
encounter national seashore waters should be knowledgeable enough to
abide by the law, and the initial need for focused attention on PWC
operators will diminish. Additional water presence and education are
proven methods of protecting resources for the future enjoyment of all
visitors, with the end result of enhancing the visitor experience.
Comments Regarding Visitor Conflict and Safety
64. One commenter stated that the EA reaches many conclusions
regarding the impact of PWC upon Cape Lookout resources and wildlife
that are directly contradicted by the 2001 determination and previous
NPS testimony.
NPS Response: Due to the increased level of public comment and
congressional interest, Cape Lookout National Seashore reanalyzed the
issues and impact topics described in the 2001 Determination in more
detail in the EA. The 2001 Determination can be viewed at: http://www.nps.gov/calo/parkplan.htm. In the 2001 determination PWC use was
evaluated without any operational or access restrictions and therefore
the reports differ in results. The results of the in-depth analysis in
the EA indicated that impacts under alternative B range from negligible
to moderate for all impact topics, and the NPS chose alternative B as
the preferred alternative. Under alternative B, PWC would only be
allowed in ten areas of the park in order to facilitate PWC access to
certain sections of Shackleford Banks, South Core Banks, and North Core
Banks. PWC must remain perpendicular to the shore and operate at flat
wake speed, which would limit safety and noise issues from PWC.
65. Commenters have concerns about PWC operators following too
closely and riding too close to the shoreline, both of which put people
at risk for serious injury.
NPS Response: In the preferred alternative, PWC will only be
allowed in the ten areas within the park specifically for landing
purposes. PWC must remain perpendicular to shore and operate at flat
wake speed. These restrictions would reduce the potential for conflicts
with other vessels.
66. One commenter believes that the proposed rule caters to a
minority of PWC users at the expense of the majority of the park
visitors who favor a PWC ban.
NPS Response: The proposed rule would support visitor enjoyment by
allowing limited access by PWC users while accommodating other visitors
and meeting resource management objectives.
Comments Regarding Cultural Resources
67. One commenter stated that the EA overstates PWC's potential
impact on cultural resources.
NPS Response: The EA was focused on the analysis of impacts from
PWC use. PWC can make it easier to reach some remote areas, compared to
hiking to these areas, but the NPS agrees that the type of impacts to
cultural resources from any users of remote areas of the park would be
similar if they can reach these areas.
Comments Regarding Socioeconomics
68. One commenter stated that the EA does not investigate the
economic impact that lifting the PWC ban would have upon businesses
that are dependent upon the conservation of wildlife and their habitat.
NPS Response: Page 170 of the EA states that the primary group that
would incur costs under the preferred alternative is park visitors who
do not use PWC and whose experiences would be negatively affected by
PWC within the park. However, because PWC users account for a very
small fraction of economic activity in the region, it is very unlikely
that there will be any measurable incremental impacts on the region's
economy. Continued PWC use within the park under the preferred
alternative would have short-term, minor adverse impacts on wildlife
species and their habitats, and is unlikely to impact the conservation
of wildlife in and near the park.
69. One commenter stated that the proposed rule fails to mention
the economic impacts on the PWC-related businesses in the area. The
comment also mentions a recently published economic study that
discusses the economic impact of banning PWC in Cape Lookout National
Seashore.
NPS Response: NPS reviewed the Trade Partnership study, which
concludes that PWC sales grew steadily through 1995, and have declined
dramatically since then. The study blames this decline in sales on the
PWC bans at National Parks. While the PWC ban at some National Park
units may have contributed slightly to decline in PWC sales, NPS
disagrees with the study's conclusion that the ban is the primary
reason for the decline in sales. PWC use occurred in only 32 of the 87
park units that allow motorized boating. These 32 park units comprise a
very small percentage of the total amount of waterways in the United
States that can accommodate PWC. A decline in PWC sales can be
attributed to many other reasons, including economic reasons,
perceptions about the machines, and limitations by other public
entities. In fact, at least 34 states have either implemented use
restrictions or considered regulating PWC use and operation.
The economic analysis report quoted in the comment (Economic
Analysis of Management Alternatives for Personal Watercraft in Cape
Lookout National Seashore, MACTEC Engineering 2005) concludes that the
proposed rule is not expected to reduce any of the local area's PWC-
related businesses' profit margins or reduce the competitiveness of PWC
rental and retail businesses. The report also concludes that small
increases in revenue are projected under the proposed rule, relative to
the no-action alternative, for firms selling and renting PWCs to Cape
Lookout visitors.
Changes to the Final Rule
Several non-substantive changes have been made to the rule language
in response to comments on the NPRM. First, the rule was rewritten to
clarify the type of PWC use prohibited and locations within the
national seashore where it is permitted. In addition, the phrase
``recreational use'' has been deleted. Also, the text in the rule has
been clarified to state that the restrictions will be imposed on the
PWC operator, not the PWC equipment. Organization of the rule has also
been improved. See the discussion above under Comment Numbers 14 and
21.
Compliance With Other Laws
Regulatory Planning and Review (Executive Order 12866)
This document is not a significant rule and has not been reviewed
by the Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. The NPS has completed the report ``Economic Analysis of
Management Alternatives for Personal Watercraft in Cape Lookout
National Seashore'' (MACTEC Engineering, December 2005). This document
may be viewed on the
[[Page 53031]]
park's Web site at: http://www.nps.gov/calo/parkplan.htm.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. Actions
taken under this rule will not interfere with other agencies or local
government plans, policies or controls. This rule is an agency specific
rule.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. This rule will have no effects on entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. No grants or other forms of monetary supplements are
involved.
(4) This rule does not raise novel legal or policy issues. This
rule is one of the special regulations being issued for managing PWC
use in National Park Units. The NPS published general regulations (36
CFR 3.24) in March 2000, requiring individual park areas to adopt
special regulations to authorize PWC use. The implementation of the
requirement of the general regulation continues to generate interest
and discussion from the public concerning the overall effect of
authorizing PWC use and NPS policy and park management.
Regulatory Flexibility Act
The Department of the Interior certifies that this rulemaking will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This certification is based on a report entitled ``Economic Analysis of
Management Alternatives for Personal Watercraft in Cape Lookout
National Seashore'' (MACTEC Engineering, December 2005). This document
may be viewed on the park's Web site at: http://www.nps.gov/calo/parkplan.htm.
Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This final rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or tribal governments or the private sector. This rule is an
agency specific rule and does not impose any other requirements on
other agencies, governments, or the private sector.
Takings (Executive Order 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. A taking implication assessment is
not required. No taking of personal property will occur as a result of
this rule.
Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. This final rule only affects use of NPS
administered lands and waters. It has no outside effects on other areas
by allowing PWC use in specific areas of the park.
Civil Justice Reform (Executive Order 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Paperwork Reduction Act
This regulation does not require an information collection from 10
or more parties and a submission under the Paperwork Reduction Act is
not required. An OMB Form 83-I is not required.
National Environmental Policy Act
The NPS analyzed this rule in accordance with the criteria of the
National Environmental Policy Act and prepared an EA. The EA was
available for public review and comment from January 24, 2005, to
February 24, 2005. A Finding of No Significant Impact (FONSI) was
signed on July 7, 2006. These documents are available at http://www.nps.gov/calo/parkplan.htm or may be requested by telephoning (252)
728-2250. Mail inquiries should be directed to park headquarters: Cape
Lookout National Seashore, 131 Charles Street, Harkers Island, NC
28531.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government to Government Relations with Native American Tribal
Governments'' (59 FR 22951) and 512 DM 2, we have evaluated potential
effects on federally recognized Indian tribes and have determined that
there are no potential effects.
Administrative Procedure Act
This rule allows use of PWC in Cape Lookout National Seashore under
specified conditions. Because current regulations do not allow use of
PWC at all, this rule relieves a restriction on the public. For this
reason, and because NPS wishes to allow the public to take advantage of
the new rules as soon as possible, this final rule is effective upon
publication in the Federal Register, as allowed by the Administrative
Procedure Act at 5 U.S.C. 553(d)(1).
The proposed rule was published in the Federal Register (70 FR
77089) on December 29, 2005, with a 60-day period for notice and
comment consistent with the requirements of 5 U.S.C. 553(b).
List of Subjects in 36 CFR Part 7
National Parks, Reporting and recordkeeping requirements.
0
In consideration of the foregoing, the NPS amends 36 CFR part 7 as
follows:
PART 7--SPECIAL REGULATIONS, AREAS OF THE NATIONAL PARK SYSTEM
0
1. The authority for part 7 continues to read as follows:
Authority: 16 U.S.C. 1, 3, 9a, 460(q), 462(k); sec. 7.96 also
issued under D.C. Code 8-137 (1981) and D.C. Code 40-721 (1981).
0
2. Add new Sec. 7.49 to read as follows:
Sec. 7.49 Cape Lookout National Seashore.
(a) Personal watercraft (PWC) may be operated within Cape Lookout
National Seashore only under the following conditions:
(1) PWC must be operated at flat-wake speed;
(2) PWC must travel perpendicular to shore;
(3) PWC may only be operated within the seashore to access the
following sound side special use areas:
(i) North Core Banks:
[[Page 53032]]
------------------------------------------------------------------------
Access Location
------------------------------------------------------------------------
(A) Ocracoke Inlet........... Wallace Channel dock to the demarcation
line in Ocracoke Inlet near Milepost 1.
(B) Milepost 11B............. Existing sound-side dock at mile post 11B
approximately 4 miles north of Long
Point.
(C) Long Point............... Ferry landing at the Long Point Cabin
area.
(D) Old Drum Inlet........... Sound-side beach near Milepost 19 (as
designated by signs), approximately \1/
2\ mile north of Old Drum inlet
(adjacent to the cross-over route)
encompassing approximately 50 feet.
------------------------------------------------------------------------
(ii) South Core Banks:
------------------------------------------------------------------------
Access Location
------------------------------------------------------------------------
(A) New Drum Inlet........... Sound-side beach near Milepost 23 (as
designated by signs), approximately \1/
4\ mile long, beginning approximately \1/
2\ mile south of New Drum Inlet.
(B) Great Island Access...... Carly Dock at Great Island Camp, near
Milepost 30 (noted as Island South Core
Banks-Great Island on map).
------------------------------------------------------------------------
(iii) Cape Lookout:
------------------------------------------------------------------------
Access Location
------------------------------------------------------------------------
(A) Lighthouse Area North.... A zone 300 feet north of the NPS dock at
the lighthouse ferry dock near Milepost
41.
(B) Lighthouse Area South.... Sound-side beach 100 feet south of the
``summer kitchen'' to 200 feet north of
the Cape Lookout Environmental Education
Center Dock.
(C) Power Squadron Spit...... Sound-side beach at Power Squadron Spit
across from rock jetty to end of the
spit.
------------------------------------------------------------------------
(iv) Shackleford Banks:
------------------------------------------------------------------------
Access Location
------------------------------------------------------------------------
(A) West End Access.......... Sound-side beach from Whale Creek west to
Beaufort Inlet, except the area between
the Wade Shores toilet facility and the
passenger ferry dock.
------------------------------------------------------------------------
(b) The Superintendent may temporarily limit, restrict or terminate
access to the areas designated for PWC use after taking into
consideration public health and safety, natural and cultural resource
protection, and other management activities and objectives.
Dated: August 25, 2006.
David M. Verhey,
Acting Assistant Secretary, Fish and Wildlife and Parks.
[FR Doc. 06-7502 Filed 9-7-06; 8:45 am]
BILLING CODE 4310-XR-P