Thread: What I have to deal with here...
08-30-2008, 05:46 PM #1
What I have to deal with here...
My apologies to admin if I put this in the wrong place....
L3425 (CAHA) April 27, 1999
From: Superintendent, Outer Banks Group
Subject: Determination on Appropriateness of Personal Watercraft Use at Cape Hatteras National Seashore
Cape Hatteras National Seashore (the Seashore) is part of the North Carolina Outer Banks. It lies on three coastal barrier islands; Bodie, Hatteras, and Ocracoke Islands. These islands are linked by North Carolina State Highway 12 and the Hatteras Inlet ferry operated by the State of North Carolina. The Seashore contains 30,000 acres of land and 70 miles of virtually unspoiled beach. Pea Island National Wildlife Refuge is contained within the boundaries of the Seashore. The refuge is managed to provide habitat for migratory waterfowl and other water-dependent birds. It is a major wintering ground and stop over point for migratory waterfowl on the Atlantic flyway.
These barrier islands are a dynamic system, migrating and evolving in response to coastal processes, winds, storms, and rising seas level. Shoreline configuration and location may change dramatically in response to storms. Seashore vegetation is adapted to varying degrees of ocean overwash, fresh water availability, salt spray, and wind blown sand. Vegetative adaptations have resulted in interdune meadows, shrub thickets, maritime forests, and fresh and salt water marshes. This variety of vegetative communities provides habitat for many animal species, some dependent on specific vegetative types and others benefiting from an ability to utilize multiple communities. The interrelationship of Seashore terrestrial and aquatic systems is complex and extensive. Hardly any terrestrial area is more than a few meters from water or wetland. The health of one system clearly impacts that of the other.
Three species, listed under the Endangered Species Act of 1973, inhabit or use the Seashore for reproduction, nesting, brooding, migration, or foraging. These are the loggerhead sea turtle, piping plover, and seabeach amaranth. A federal species of concern, the dune blue curl, also is indigenous to the Outer Banks. Occasionally the endangered leatherback turtle may nest on the Seashore and the endangered peregrin falcon, roseate tern, and bald eagle use the Seashore for migration. The soundside marshes and wetlands of the Seashore serve as nesting and feeding grounds for numerous water-dependent avian species during the summer months. The soundside waters of the Seashore are important spawning grounds for several commercially and recreationally important fish and provide vital habitat for many species of locally-harvested shellfish and crabs.
Nine villages are located within or adjacent to Seashore boundaries on non-federal land. The main revenues of these villages derive directly or indirectly from summer tourism or commercial fishing. The lifestyle and culture of these villages is also largely directly attributable to the nature of the barrier islands and their relationship with the sea.
Purpose and Significance of Cape Hatteras National Seashore
The enabling legislation of Cape Hatteras National Seashore, dated August 17, 1937 (50 Stat. 669), provides in part:
- Sec. 4. Except for certain portions of the area, deemed to be especially adaptable for recreational uses, particularly swimming, boating, sailing, fishing, and other recreational activities of similar nature, which shall be developed for such uses as needed, the said area shall be permanently reserved as a primitive wilderness and no development of the project or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing in this area…
Currently PWC use in Cape Hatteras National Seashore is significant and growing rapidly. For example, park rangers counted in excess of 200 PWCs in the water or on the beach at Oregon Inlet on July 4, 1997. This may be due, in part, to PWC restrictions or prohibitions enacted by nearby jurisdictions. The potential exists for considerable expansion of this use if left unregulated.
On June 22, 1998, Director Bob Stanton signed an Interim Management Policy for Personal Watercraft Use until regulations could be developed regarding PWC use for all units in the National Park System. This interim policy ordered the Seashore and other national park units that have had significant PWC use prior to 1998 to begin management of PWC use (e.g. prohibitions, restrictions, limits). Superintendents were to use the authorities provided in 36 CFR 1.5 and 1.7 to initiate PWC regulation within their respective parks.
A work group of Cape Hatteras Group NPS employees met in Manteo, NC, in July 1998, to consider the following PWC management options to meet the Director's Interim Management Policy:
- total PWC prohibition
- no restrictions
- limit PWC numbers by permit fees
- expansion of use
- limited access points
- limit use areas by sound versus ocean side
- allow sound side use but no launching from NPS land
- authorize only park concessioners to provide for PWC use
- limit PWC access by season or time of day
- launch conditions or restrictions
- identify recreation use zones
- combination of the above
Authority to Act
Park management determines what types of activities are appropriate in units of the National Park System. This is not an arbitrary decision process. It is guided by a codified body of laws and policies that have their roots in the congressional legislation that created the National Park Service in 1916, and subsequent policy decisions, congressional mandates, and legal decisions which are summarized below.
The NPS is granted broad authority under 16 U.S.C. Section 1 et seq. (National Park Service Organic Act, as amended) to "…regulate the use of the Federal areas known as national parks, monuments, and reservations…by such means and measures as conform to the fundamental purposes of said parks…which purpose is to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations" (16 U.S.C. Section 1). In addition the Organic Act (16 U.S.C. 3.) allows 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, monuments, and reservations under the jurisdiction of the National Park Service…."
In 1970, Congress amended the NPS Organic Act of 1916 to clarify its intentions as to the overall mission of the National Park Service. Through the General Authorities Act of 1970 (16 U.S.C. 1a-1 through 1a-, Congress brought all areas administered by the NPS into one National Park System and directed the NPS to manage all areas under its administration consistent with the Organic Act of 1916.
In 1978 Congress amended the General Authorities Act of 1970 and reassured System-wide the high standard of protection defined in the original Organic Act by stating, "Congress further reaffirms, declares, and directs that the promotion and regulation of the various areas of the National Park System, as defined in section 1 of this title, shall be consistent with and founded in the purpose established by section 1 of this title, to the common benefit of all people of the United States." 16 U.S.C. Section 1c defines the National Park System as "…any area of land and water now or hereafter administered by the Secretary of Interior through the National Park Service for park, monument, historic, parkway, recreational, or other purposes."
16 U.S.C. Section 1a-1 states, "The authorization of activities shall be conducted in the 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, except as may have been or shall be directly and specifically provided by Congress."
As with the U.S. Coast Guard, NPS regulatory authority over waters subject to the jurisdiction of the United States, including navigable waters and areas within their ordinary reach, is based upon the Property and Commerce Clauses of the U.S. Constitution. In regards to the NPS, Congress in 1976 amended the 1970 Act for Administration (known as the General Authorities Act) and authorized and 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 clarified that NPS regulations otherwise applicable within the boundaries of a National Park System unit apply on and within waters subject to the jurisdiction of the United States by publishing a final rule 36 CFR 1.2(a) which states, "The regulations contained in this chapter apply to all persons entering, using, visiting, or otherwise within:…(3) Waters subject to the jurisdiction of the United States located within the boundaries of the National Park System including navigable waters and waters within their ordinary reach (up to mean high water line in places subject to the ebb and flow of the tide and up to the ordinary high water mark in other places) and without regard to the ownership of submerged lands, tidelands, or lowlands."
Noise Pollution A traditional motorized watercraft traverses through an area and, within a few minutes, is out of the area. PWC use typically consists of groups of riders who traverse the same area over and over again. Because they tend to stay in one area for longer periods of time, the noise from PWCs is constant. Noise problems are compounded by PWC operating characteristics. The jet drive may emerge from the water when a PWC goes over a wave or wake resulting in changes in loudness and pitch which complainants cite as more disturbing than constant sounds. The erratic changes in engine pitch, the pulsation of sound produced by jumping wakes, and frequent changes in speed, in addition to the volume of the sound, create noise that is perceived as both irritating and an intrusion upon the park experience. The PWC industry has argued that new models are much quieter than older models, but this does not alleviate the noise pollution of the PWCs already in use at the Seashore. Additionally, aftermarket modifications to PWCs are common practice with many PWCs having exhaust systems modified to increase horsepower and thrust. This can render useless attempts by manufacturers to reduce noise levels.
Nearly all PWCs currently in use are powered by two-stroke engines, which do not completely burn the mixture of oil and gasoline delivered to the combustion chamber. According to studies cited in the U.S. Environmental Protection Agency (EPA) gasoline spark-ignited engine rulemaking, these two-stroke engines discharge as much as 25% of their gas and oil emissions directly into the water. On a per-gallon basis, PWCs can emit a minimum of 23% more ambient hydrocarbon (gas and oil) emissions that other two-stroke engine watercraft (USEPA,1991). An average two-hour ride on a PWC emits three gallons of gas and oil into the water.
PWCs have twice the hourly annual usage rate of other water vessels, double the load factor (rpm, pay load, etc.), and significantly more horsepower than a typical two-stroke outboard. For these reasons, PWCs emit eight times more pollution than equivalent motorboats. The California Air Resources Board reports that a two-hour ride on a 100-horsepower PWC emits the same pollution as driving 139,000 miles in a 1998 passenger car. The PWC industry counters that the EPA data include older, less efficient PWCs and almost all 1998 models meet new hydrocarbon and oxides of nitrogen emission standards. It will be many years, however, before the older models are no longer used.
Extensive published research has shown that human intrusion on foot, boat, 4-wheeler, etc., disturbs birds feeding or nesting in estuarine areas, sometimes to the point that birds abandon nests and eggs. Research has shown that propeller-driven boats also impact turbidity of water near shore as well as sea grass communities growing there. The most prominent researcher in the area of PWC effects on estuarine birds is Jim Rogers of the Florida Game and Freshwater Fish Commission. In 1997, Rogers recommended minimum "setback" distances for outboard motorboats to avoid disturbing nesting and feeding birds. He is currently studying setback distances for PWCs and his unpublished findings show that the minimum PWC setback for long-billed dowitchers is a little over 150'. The minimums for all other birds he has studied are much greater, some in excess of 450'. Based on Rogers' research, the sound-side 150' NPS boundary would be inadequate to protect most species of estuarine birds on the Seashore. However, in the absence of jurisdiction to impose greater setbacks to protect estuarine species, prohibition of PWC operation within Seashore waters would appear to be the maximum protection that the NPS can afford these species.
A report in the August 27, 1997 Journal of the American Medical Association stated in part:
- Based on national estimates, injuries associated with PWC use have increased 4-fold (P.001) from an estimated 2860 in 1990 to more than12,000 in 1995….During the same period, there was a 3-fold (P<.001) increase in the number of PWC in operation from approximately 241,500 in 1990 to an estimated 760,000 in 1995.
- Based on these data , 14,062 injuries were associated with PWC use treated in EDs [Emergency Departments]...The rate of injuries related to PWC treated in EDs was about 8.5 times higher…than the rate of ED-treated injuries from motorboats.
Public comment was solicited by notices in regional newspapers. The public comment opened on February 18 and closed March 22, 1999. All comments received by the Seashore prior to the public notice were recorded and analyzed along with those comments received during the comment period.
The Seashore analyzed a total of 1,034 responses. 948 responses opposed continued unregulated PWC use at the Seashore with 901 of these favoring a complete ban on PWC operation. 86 responses opposed a total ban, but 65 of those opposed to a total ban also believed some sort of regulation was needed. This resulted in a 10.5-to-1 ratio of those favoring prohibition of PWC use versus those opposed to prohibition of PWC operation.
280 responses came from Dare County residents, 685 came from outside Dare County, and 69 were of unknown origin. 255 Dare County responses favored some form of PWC regulation, most preferring a total ban, while 25 responses liked PWC operation, opposed a total ban, but saw the need for some regulation. This resulted in a 10.2-to-1 ratio of Dare County responses generally opposed to continued PWC operation within the Seashore versus Dare County responses favoring continued PWC operation within the Seashore. Non-local (from outside Dare County) responses mirrored local responses with a 10.6-to-1 ratio opposed to PWCs versus those favoring PWCs.
We received a total of 1003 responses from individuals, 4 responses from businesses, 27 responses from organizations, and no responses from federal, state, county or local governmental agencies.
Visitor Use Conflicts
Conflicts between PWC users and other Seashore visitors generate the majority of visitor use conflict complaints. For example, rangers have responded to complaints of PWCs operating within the confines of lifeguarded beaches. Surf fishermen regularly complain about PWCs cutting fishing lines and blasting through fishing areas, scaring away fish. Surfers and sailboarders have complained that PWC intrusion into areas used by these groups has forced them to leave or to modify their activities within the areas to avoid collision or operation in close proximity to PWCs.
Probably the strongest complaints come from land-based visitors. Beach walkers, people looking for shells, birdwatchers, sunbathers, artists, photographers, or those who simply stand on the shore to appreciate the visual beauty and natural sounds of the Seashore voice frequent complaints about the behavior of PWC operators and the noise PWCs produce. The natural sounds of the barrier island environment are a prime component of the seashore experience and PWCs often intrude upon this experience.
PWC use is a recreational activity in and of itself and, other than a need for a sufficiently wide and deep body of water, PWC use is not dependent on resources within NPS jurisdiction. As such, it is not necessarily an appropriate use in all National Park System units, especially where the protection of quiet and solitude are prime management objectives. The use of PWCs must be distinguished from other motorized use that provides access to enjoy primary park resources. In the Seashore, those uses might include motorized watercraft for access to wildlife viewing, fishing, swimming, or simple transport from point to point. Since the Seashore's enabling legislation requires the Seashore to be managed almost entirely as a "primitive wilderness", and since natural quiet and solitude are integral to a primitive wilderness experience, the enabling legislation is consistent with prohibiting PWC use. This case is strengthened by application of 16 U.S.C. 1a-1 in that authorization of PWC use would be in direct derogation of the values and purposes for which the Seashore has been established.
FINDINGS AND DETERMINATION The NPS Organic Act, as amended, along with other pertinent laws and regulations, gives the NPS and individual park managers the authority to regulate use within the National Park System units. In fact, 16 U.S.C. 1a-1 gives managers the charge that "…The authorization of activities shall…not be in derogation of the values and purposes for which these various areas have been established…". The NPS is not by law or practice obligated to accommodate every new recreational activity and in the past has limited or restricted activities that are not either resource-based, or that impact park resources and values.
Based on the foregoing analysis, PWC operation poses considerable threats to estuarine flora and fauna, pollutes waters essential to commercial and recreational fishing in the park, poses unacceptable risk of injury to operators and bystanders, conflicts with the majority of other longstanding uses of the Seashore, and is an inappropriate use of the Seashore since PWC noise intrusion is inconsistent with the "primitive wilderness" intent. Public comment strongly supports these findings.
PWC use is in derogation of the values and purposes for which the Seashore was established by Congress and, pursuant to the authority of 36 CFR 1.5(a)(1), is prohibited within the boundaries of Cape Hatteras National Seashore effective May 17, 1999. This prohibition does not apply to PWCs operated by duly authorized federal, state, and local law enforcement and emergency response agencies whose jurisdictions lie within or adjoin Cape Hatteras National Seashore boundaries and when engaged in training, enforcement or search and rescue activities. This determination is in compliance with the Director's Interim Management Policy for PWC Use dated June 22, 1998.
This determination is found to be categorically excluded from further compliance with the National Environmental Policy Act under Departmental exclusion 1.5 in Appendix 1, 516 DM 2, and the National Park Service exclusion 7.4D(2) and (4) in Appendix 7, 516 DM 6. In compliance with Section 7 of the Endangered Species Act of 1973, as amended, the National Park Service has determined that this action will not adversely affect any Federally listed threatened or endangered species, or designated critical habitat.
08-30-2008, 05:49 PM #2
This is what happens when your shoreline belongs to the Federal Government. As far as I am concerned, the NPS can pack their bags, and leave.
This is going without mentioning the uproar they have caused recently with beach closings due to so-called "nesting piping plovers". I have yet to see any of these birds nesting on the beach.
Save a bird - Kill a community.
08-31-2008, 11:32 AM #3
- Join Date
- Nov 2007
- Odessa, TX
Amazing, they are using data that is over a Decade old now. Data from a time when the 4 stroke PWC was a dream.
08-31-2008, 11:46 AM #4
Well, you have to understand, that was written 10 years ago. But they still try to put up the same argument nonetheless.
08-31-2008, 11:49 AM #5
- Join Date
- Nov 2007
- Odessa, TX
08-31-2008, 03:00 PM #6
I have to agree with you there. I know for a fact my friend has a noisy ass speed boat who lives just on the other side of the water from him in Martin's Point. There are all kinds of shenanigans going on out there besides PWC use.
08-31-2008, 03:15 PM #7
- Join Date
- Jan 2007
- Lakeland, FL
Oh, they would hate me in my "boat". It's crap like this that makes me glad I've got something that looks like a boat, but is in essence, just a PWC. Since they're so backwards in time, they don't even know something like that can exist.
08-31-2008, 09:56 PM #8
That sucks! I've written dozens of letters to various National Park Service superintendents to oppose Blue Water Network and the other environmentalist whackos out there. I've run my JetSki in several National parks, and hope to be able to do so in the future.
Wish I could bring my Yamaha Exciter boat there and clear out the mosquitos with all the smoke! It would be legal...
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