Monday, July 2, 2007
Piping Plover Critical Habitat Comments
The following comment was sent to the USFWS from Dr. Michael Berry. Dr Berry was deputy director of a division of the U.S. Environmental Protection Agency from 1978 to 1998. In 2005 he retired from his position as a research professor in the Carolina Environmental Program at The University of North Carolina. I hope you will join us in applauding Dr. Berry for taking the time to attend the USFWS Public Meeting held in Buxton.
July 2, 2007
U.S. Fish and Wildlife Service
P.O. Box 33726
Raleigh, NC 27636-3726
Subject: Comment-- Wintering Piping Plover Critical Habitat Proposal
I wish to submit comments on the draft environmental assessment, the draft economic assessment, and the public hearing for the Unites States Fish and Wildlife Service Proposed Rule to Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover as published in the Federal Register Vol. 72, No 104, Thursday May 31, 2007.
I have reviewed all the US Fish and Wildlife Service materials posted on the internet as well as the entire unpublished "Vogelsong" study that is used as a primary source for the draft economic analysis. My comments are as follows:
1. Without a documented basis in science, the proposed rule to designate four regions of Cape Hatteras National Seashore as critical habitat for the Piping Plover cannot be shown to be warranted.
The document that is titled "Environmental Assessment" contains virtually no referenced science associated with the Piping Plover. In actuality the document is a regulatory impact analysis. The primary reference to science is Cornell University online data base which requires payment for access--this is not an available or suitable reference for an open public review process. In addition, the Piping Plover Fact Sheet and Frequently Asked Question Sheet posted on the US Fish and Wildlife Service website are undated, contain no references, and fail to indicate any level of peer review.
The Federal Courts have ruled that Federal Agencies must apply the Hard Look Doctrine to their rule-making decisions. To justify the need for the rule-making, there must be a basis in recognized and published science for this type of decision. In this current body of review materials there is a clear and gross absence of scientific information (criteria) regarding the Piping Plover and its habitat.
In the draft review materials posted by the US Fish and Wildlife Service for the rule-making, there is no analysis or discussion of Piping Plover population changes since the bird was first listed as endangered in the late 1980’s. Obviously the species has survived and been stable for the past 20 years—probably as a result of the focused attention encouraged by the Endangered Species Act nation wide. The scientific basis for proposed designation should address the following question: What are the bird population trends and what is the scientific basis for determining those trends?
The review materials do not properly indicate the fact that the four proposed sites for critical habitat designation are currently very healthy and sustainable ecosystems as indicated by the diverse number of interactive species (350+) that they contain. These four habitats are currently successfully managed and protected by the cooperative efforts of government agencies, non-governmental organizations, the concerned public without the special designation of critical habitat. The four areas currently proposed for the critical habitat designation are very small in area, constantly altered by storms, and have not been shown through peer reviewed science to be essential for the recovery of the Piping Plover population especially on a national basis.
2. The US Fish and Wildlife Service proposes to designate four areas of the Cape Hatteras National Seashore as Critical Habitat--"Alternative 2." However, the draft materials presented for public review do not support the proposal to designate critical habitat. In fact, the materials clearly support Alternative 1, "not to designate."
The Environmental Assessment indicates several times that the Piping Plover is protected by the provisions of Section 7 of the Endangered Species Act and that 'additional management actions are not likely to be necessary.'
The draft materials do not prove a need for special designation. If these habitats are healthy, viable, and currently managed, why do they need special management attention provided by critical habitat designation? That question is not addressed in the review materials.
Since 1989, Critical Habitat Designation has not been used by the federal government as the primary mechanism for species recovery. The widely publicized recovery of many species has been largely the result of focused attention to the species and management actions provided by Section 7 ESA.
3. The draft materials suggest government use of the Endangered Species Act to prevent ORV access to four of the most popular beaches of the Hatteras National Seashore and not primarily the recovery of a single bird species. This misuse of the Endangered Species Act cheapens its primary intent and reduces public support for the law and subsequent rule-making.
As indicated by the Endangered Species Act, a Critical Habitat Designation is a statute based declaration by the federal government indicating need for special management attention for species recovery. This special designation automatically limits the discretionary management options of the Park Service and other government agencies especially with regard to public participation and negotiated rule-making.
The critical habitat designation opens the door for citizen suits provided by the Endangered Species Act that will obviously focus on the banning of ORVs and public assess to the shoreline which has been the stated objective of environmental activist organizations for the past 30 years. The purpose of Endangered Species Act is to promote the protection of species, not regulate ORV's.
The US Fish and Wildlife Service should be very clear and open to the actual and probable impact of the Critical Habitat Designation, especially in regard to very likely citizen suits that can lead to the banning of ORVs from designated beaches. Currently even without the critical habitat designation, thousands of citizens arrive at the Park only to finds beaches closed for public use. In the face of critical habitat designation, the public anxiety about future beach closures and ORV prohibition will increase greatly.
The proposed designation will negate or call into question the "good faith" intentions of negotiated management discussion and plans currently underway between the Park Service and over 20 diverse special interest and stakeholder groups.
4. The draft Economic Analysis does not respond to the court mandate to do a comprehensive economic impact analysis nor does it follow Federal Government Guidelines for this kind of impact study. The draft economic analysis is flawed to such an extent that it is a waste a public funds.
The draft Economic Analysis was prepared in response to a court order and remand. The draft economic analysis is a contracted “paper study†prepared by Industrial Economic, Incorporated (IEC) and relies heavily on the unpublished "Cape Hatteras National Seashore Visitor Use Study, August 2003" (otherwise know as the Vogelsong study), business census data, and incomplete Small Business Administration data.
The Vogelsong study is a primary source of information for the Economic Analysis. The 2003 'park usage study' is biased in terms of its survey questions, and very limited in terms of actual ORV counts. It greatly undercounts both ORV and beach usage. The analytical methodology is flawed to the point it would not pass a peer review process. As a widely criticized, unpublished study, it should not be referenced in an Economic Assessment used for rule-making.
Many of the assumptions of beach usage presented in the analysis can be easily shown to be false. For example, when estimating how many ORV users might be affected by beach closures, the IEC analysis uses the Vogelsong study. The Vogelsong study states that 32% of visitors said that they would return less frequently because of beach closures. IEC uses this percentage to project the high range of ORV users who will not return due to closures. In actuality, the Vogelsong study also states that an additional 29% will not return at all which IEC ignores. The data actually indicate that up to 61% would not return at all. In addition, the Economic Analysis (IEC) assumes that all ORV visitors spend the entire day at the beach. This is virtually never the case.
The Economic Analysis makes an attempt to "water down" the actual negative economic impact of the proposed rule-making. Should any amount of beach access and usage be denied to the public, the economic estimates as shown in the Federal Resister are incorrect.. The analytical method used to calculate the estimates assumed that ORV's had access to total park acreage, which is obviously false. In reality ORV's have access to less that 10% of the total acreage. The economic impact estimates are thus low by a factor of 10 or more.
The US Fish and Wildlife Service did not conduct or commission a credible comprehensive economic analysis as directed by the court. The authors of the Economic Analysis (IEC) obviously have no first hand knowledge of the economic structure of the region they were hired to assess. There was no economic data collection field work. The study fails to recognize that there eight villages affected by the rule-making, that virtually all businesses on Hatteras and Ocracoke Islands are "small businesses" which are affected to some degree by reduced visits and park usage. IEC made no attempt to stratify and focus in on the businesses and organizations most effected by reduced public usage of the beaches. The conclusion that the rule-making will pose only a $300 per business loss is insulting to the small businesses of the region that have already begun to feel the effect of lost business as result of current beach closures. Economic data can be easily acquired by direct communication with businesses in Dare and Hyde County (Note: Hyde Country is the poorest county in North Carolina).
The analysis does a very incomplete job of looking at direct costs. In response to the court direction for a comprehensive economic assessment , the analysis should address in focused detail 1) direct costs--lost annual revenue, reduced asset value of the affect business, 2) indirect costs--lost jobs, reduce property value and tax base 3)future costs: usage permits, legal fees and litigation, and 4) hidden costs--lost educational uses and future business development.
Even with the most complete data set, it is absolutely impossible to credibly estimate economic impact out 20 years. This exercise in numerology discredits the analysis.
5. The US Fish and Wildlife Service request for public participation and comment for this proposed rule-making is limited to point of being superficial.
This proposal and review process has not been widely communicated and is for the most part unknown by the thousands of citizens that use the beaches for recreational activities to include fishing and surfing. The comment period of less than 60 days for the review of these materials is far too limited. These materials should be made known to users of the Park on a national basis and be left open for public consideration for at least 6 months. There is an appearance that there is a deliberate rush to designate that the four areas are critical habitat mainly for the purpose of limiting ORV use.
The Public Hearing conducted by the US Fish and Wildlife Service on June 20, 2007 at Buxton, North Carolina was not conducted by the federal government in a manner conductive to good public administration and decision-making. The purpose of a public hearing is to create a public record of factual information for public policy development and informed decision-making. Many participants at the hearing who made comment are long time residents and visitors to the region who have in-depth knowledge of the environmental and economic conditions. The federal officials conducting the hearing did not ask a single question of any presenter. The government failed to demonstrate that it is sincere in seeking factual information on which to base a habitat designation decision.
/s/ Michael A. Berry
16 Charrington Place
Chapel Hill, NC 27517
July 2, 2007
U.S. Fish and Wildlife Service
P.O. Box 33726
Raleigh, NC 27636-3726
Subject: Comment-- Wintering Piping Plover Critical Habitat Proposal
I wish to submit comments on the draft environmental assessment, the draft economic assessment, and the public hearing for the Unites States Fish and Wildlife Service Proposed Rule to Revised Designation of Critical Habitat for the Wintering Population of the Piping Plover as published in the Federal Register Vol. 72, No 104, Thursday May 31, 2007.
I have reviewed all the US Fish and Wildlife Service materials posted on the internet as well as the entire unpublished "Vogelsong" study that is used as a primary source for the draft economic analysis. My comments are as follows:
1. Without a documented basis in science, the proposed rule to designate four regions of Cape Hatteras National Seashore as critical habitat for the Piping Plover cannot be shown to be warranted.
The document that is titled "Environmental Assessment" contains virtually no referenced science associated with the Piping Plover. In actuality the document is a regulatory impact analysis. The primary reference to science is Cornell University online data base which requires payment for access--this is not an available or suitable reference for an open public review process. In addition, the Piping Plover Fact Sheet and Frequently Asked Question Sheet posted on the US Fish and Wildlife Service website are undated, contain no references, and fail to indicate any level of peer review.
The Federal Courts have ruled that Federal Agencies must apply the Hard Look Doctrine to their rule-making decisions. To justify the need for the rule-making, there must be a basis in recognized and published science for this type of decision. In this current body of review materials there is a clear and gross absence of scientific information (criteria) regarding the Piping Plover and its habitat.
In the draft review materials posted by the US Fish and Wildlife Service for the rule-making, there is no analysis or discussion of Piping Plover population changes since the bird was first listed as endangered in the late 1980’s. Obviously the species has survived and been stable for the past 20 years—probably as a result of the focused attention encouraged by the Endangered Species Act nation wide. The scientific basis for proposed designation should address the following question: What are the bird population trends and what is the scientific basis for determining those trends?
The review materials do not properly indicate the fact that the four proposed sites for critical habitat designation are currently very healthy and sustainable ecosystems as indicated by the diverse number of interactive species (350+) that they contain. These four habitats are currently successfully managed and protected by the cooperative efforts of government agencies, non-governmental organizations, the concerned public without the special designation of critical habitat. The four areas currently proposed for the critical habitat designation are very small in area, constantly altered by storms, and have not been shown through peer reviewed science to be essential for the recovery of the Piping Plover population especially on a national basis.
2. The US Fish and Wildlife Service proposes to designate four areas of the Cape Hatteras National Seashore as Critical Habitat--"Alternative 2." However, the draft materials presented for public review do not support the proposal to designate critical habitat. In fact, the materials clearly support Alternative 1, "not to designate."
The Environmental Assessment indicates several times that the Piping Plover is protected by the provisions of Section 7 of the Endangered Species Act and that 'additional management actions are not likely to be necessary.'
The draft materials do not prove a need for special designation. If these habitats are healthy, viable, and currently managed, why do they need special management attention provided by critical habitat designation? That question is not addressed in the review materials.
Since 1989, Critical Habitat Designation has not been used by the federal government as the primary mechanism for species recovery. The widely publicized recovery of many species has been largely the result of focused attention to the species and management actions provided by Section 7 ESA.
3. The draft materials suggest government use of the Endangered Species Act to prevent ORV access to four of the most popular beaches of the Hatteras National Seashore and not primarily the recovery of a single bird species. This misuse of the Endangered Species Act cheapens its primary intent and reduces public support for the law and subsequent rule-making.
As indicated by the Endangered Species Act, a Critical Habitat Designation is a statute based declaration by the federal government indicating need for special management attention for species recovery. This special designation automatically limits the discretionary management options of the Park Service and other government agencies especially with regard to public participation and negotiated rule-making.
The critical habitat designation opens the door for citizen suits provided by the Endangered Species Act that will obviously focus on the banning of ORVs and public assess to the shoreline which has been the stated objective of environmental activist organizations for the past 30 years. The purpose of Endangered Species Act is to promote the protection of species, not regulate ORV's.
The US Fish and Wildlife Service should be very clear and open to the actual and probable impact of the Critical Habitat Designation, especially in regard to very likely citizen suits that can lead to the banning of ORVs from designated beaches. Currently even without the critical habitat designation, thousands of citizens arrive at the Park only to finds beaches closed for public use. In the face of critical habitat designation, the public anxiety about future beach closures and ORV prohibition will increase greatly.
The proposed designation will negate or call into question the "good faith" intentions of negotiated management discussion and plans currently underway between the Park Service and over 20 diverse special interest and stakeholder groups.
4. The draft Economic Analysis does not respond to the court mandate to do a comprehensive economic impact analysis nor does it follow Federal Government Guidelines for this kind of impact study. The draft economic analysis is flawed to such an extent that it is a waste a public funds.
The draft Economic Analysis was prepared in response to a court order and remand. The draft economic analysis is a contracted “paper study†prepared by Industrial Economic, Incorporated (IEC) and relies heavily on the unpublished "Cape Hatteras National Seashore Visitor Use Study, August 2003" (otherwise know as the Vogelsong study), business census data, and incomplete Small Business Administration data.
The Vogelsong study is a primary source of information for the Economic Analysis. The 2003 'park usage study' is biased in terms of its survey questions, and very limited in terms of actual ORV counts. It greatly undercounts both ORV and beach usage. The analytical methodology is flawed to the point it would not pass a peer review process. As a widely criticized, unpublished study, it should not be referenced in an Economic Assessment used for rule-making.
Many of the assumptions of beach usage presented in the analysis can be easily shown to be false. For example, when estimating how many ORV users might be affected by beach closures, the IEC analysis uses the Vogelsong study. The Vogelsong study states that 32% of visitors said that they would return less frequently because of beach closures. IEC uses this percentage to project the high range of ORV users who will not return due to closures. In actuality, the Vogelsong study also states that an additional 29% will not return at all which IEC ignores. The data actually indicate that up to 61% would not return at all. In addition, the Economic Analysis (IEC) assumes that all ORV visitors spend the entire day at the beach. This is virtually never the case.
The Economic Analysis makes an attempt to "water down" the actual negative economic impact of the proposed rule-making. Should any amount of beach access and usage be denied to the public, the economic estimates as shown in the Federal Resister are incorrect.. The analytical method used to calculate the estimates assumed that ORV's had access to total park acreage, which is obviously false. In reality ORV's have access to less that 10% of the total acreage. The economic impact estimates are thus low by a factor of 10 or more.
The US Fish and Wildlife Service did not conduct or commission a credible comprehensive economic analysis as directed by the court. The authors of the Economic Analysis (IEC) obviously have no first hand knowledge of the economic structure of the region they were hired to assess. There was no economic data collection field work. The study fails to recognize that there eight villages affected by the rule-making, that virtually all businesses on Hatteras and Ocracoke Islands are "small businesses" which are affected to some degree by reduced visits and park usage. IEC made no attempt to stratify and focus in on the businesses and organizations most effected by reduced public usage of the beaches. The conclusion that the rule-making will pose only a $300 per business loss is insulting to the small businesses of the region that have already begun to feel the effect of lost business as result of current beach closures. Economic data can be easily acquired by direct communication with businesses in Dare and Hyde County (Note: Hyde Country is the poorest county in North Carolina).
The analysis does a very incomplete job of looking at direct costs. In response to the court direction for a comprehensive economic assessment , the analysis should address in focused detail 1) direct costs--lost annual revenue, reduced asset value of the affect business, 2) indirect costs--lost jobs, reduce property value and tax base 3)future costs: usage permits, legal fees and litigation, and 4) hidden costs--lost educational uses and future business development.
Even with the most complete data set, it is absolutely impossible to credibly estimate economic impact out 20 years. This exercise in numerology discredits the analysis.
5. The US Fish and Wildlife Service request for public participation and comment for this proposed rule-making is limited to point of being superficial.
This proposal and review process has not been widely communicated and is for the most part unknown by the thousands of citizens that use the beaches for recreational activities to include fishing and surfing. The comment period of less than 60 days for the review of these materials is far too limited. These materials should be made known to users of the Park on a national basis and be left open for public consideration for at least 6 months. There is an appearance that there is a deliberate rush to designate that the four areas are critical habitat mainly for the purpose of limiting ORV use.
The Public Hearing conducted by the US Fish and Wildlife Service on June 20, 2007 at Buxton, North Carolina was not conducted by the federal government in a manner conductive to good public administration and decision-making. The purpose of a public hearing is to create a public record of factual information for public policy development and informed decision-making. Many participants at the hearing who made comment are long time residents and visitors to the region who have in-depth knowledge of the environmental and economic conditions. The federal officials conducting the hearing did not ask a single question of any presenter. The government failed to demonstrate that it is sincere in seeking factual information on which to base a habitat designation decision.
/s/ Michael A. Berry
16 Charrington Place
Chapel Hill, NC 27517
