Red tape that protects plovers hurts Cape economy

By November 4, 2013 February 15th, 2016 No Comments

Nov. 03–ORLEANS — To Scott Morris, it was maddening.

The president of the 2,000-member Massachusetts Beach Buggy Association, Morris grew up traveling the off-road trails that run south from Nauset Beach along the barrier beach. He wanted his 7-year-old son to experience a Fourth of July on the beach, but for the seventh year in a row, nesting plovers closed off all the trails heading south from Nauset. This time the closure would last 83 days, the longest ever, from June 2 to Aug. 23.

As the end of summer neared, one plover chick — the size of a marshmallow — wandering the blasted barren sands near the Pochet Road bridge and disappearing for days at a time, kept the 7-mile off-road trail system that could accommodate nearly 400 vehicles closed for 21 days.

“All the time I spent on Nauset, from a baby on up, I have never seen a plover run over,” Morris said.

It’s not just about lost revenue — Orleans has seen its off-road sticker sale revenue cut in half over the past seven years — it’s a way of life that’s disappearing, Morris said. He added his voice to a growing chorus of town officials, fishermen and business owners across the Cape who believe it’s time for towns to get some relief from these closures.

Plover closures this summer so angered selectmen in Chatham and Orleans that the two towns formed a committee with fellow selectmen from other towns to get the attention of state and federal legislators. So far, selectmen from six towns have signed on.

“Year after year, our beaches have been closed more and more,” Orleans Selectman John Hodgson told Sandwich selectmen last month when soliciting their support. “It’s hurting revenues for the town. We used to get $450,000 a year (in off-road sticker fees), and we now get $225,000. It’s hurting our tourism and business in town.”

The problem, they say, is that state and federal agencies charged with protecting endangered species like the plover and the state-listed least tern set the bar too high for permits that allow oversand vehicles to drive past nesting shorebirds once the town has agreed to a set of conditions.

Along the Atlantic coast, from Maine to the Carolinas, only one federal Section 10 permit allowing off-road traffic to bypass plovers has been issued since 1986, the year the species was first listed as endangered. Because Massachusetts has its own Endangered Species Act, towns also need state conservation and management permits. Back in the early 1990s, Massachusetts applied for, and received, the federal permit from the U.S. Fish and Wildlife Service for shorebirds that it hoped would ease the process, but no one applied for any state permits either.

“It was never used,” Massachusetts Division of Fisheries and Wildlife Assistant Director Tom French said. “We figured we would do an application for the entire state and set performance standards. We got that permit and didn’t have a single applicant.”

“We have not issued any (other) incidental take permits,” said Anne Hecht, the Atlantic coast piping plover coordinator for the Fish and Wildlife Service. That’s zero Section 10 permits along the entire Atlantic coastline.

The state has approved 204 conservation and management permits for other species since the state Endangered Species Act was initiated in 1992, but only two involved nesting shorebirds. One went to Sandy Neck in Barnstable three years ago to allow a small number of vehicles to bypass least tern nests and a second was approved last year for a restoration project in Winthrop on a beach owned by a sister agency, the Department of Conservation and Recreation.

Beach access advocates say that, given the robust recovery of plovers in Massachusetts — the only region consistently over the goal set in the federal recovery plan — the criteria should be loosened.

“I think that most beach managers would hope to get more flexibility out of the state,” Sandy Neck manager Nina Coleman said. “It’s frustrating that we have one of the most successful (plover) populations here on the Cape, and the restrictions continue.”

“We don’t support a free-for-all, back to where it was in 1969. We are asking for an opportunity, permission, to implement a different strategy with the number one goal to protect this species,” Morris said.

willing to take more risks?

Both state and federal officials agree that threats to nesting shorebirds have changed. Beach management is a lot more professional now, and proposed changes to the beach or off-road trails are now reviewed by local conservation commissions and two state agencies.

While state officials claim plover deaths by oversand vehicles were one of the main reasons the species went into a tailspin back in the 1970s, it is now exceedingly rare that a chick or adult has been disturbed or killed by a passing motor vehicle. Predators and storms now account for the majority of plover and least tern deaths during the nesting season.

There are signs that state and federal officials are listening.

“As the population has gotten stronger, we are willing to take more risks,” French said. This winter, his agency will be considering what can be done to alleviate town concerns.

“We do believe that in New England there are some opportunities for additional flexibility,” agreed Hecht.

But neither could say exactly what that flexibility would look like, although French said they were considering how best to handle the single nest or chick that keeps an area closed.

“We’ve toyed with other options that could be permittable, but there has to be a net benefit,” French said.

The interpretation of “net benefit” is where the process gets hung up. Officials say the language of the endangered species acts makes it clear that for a permit allowing vehicles onto the beach during nesting periods, the towns must offer an alternative that will not just limit the possibility of birds being harmed or disturbed but improves the chances of success for the rest of the birds in the area.

“We are interested in having applications for coastal areas,” French said. “This is what permits are made for.”

But getting approval for proposals has been next to impossible, beach access advocates say. It is easier to obtain a conservation permit for inland wildlife, where a common trade-off for disturbing a protected species at one location is to set aside land and habitat elsewhere. Out on the beaches, it’s another story. Much of the coastline is already protected under the state’s Wetlands Protection Act, and that makes predator control the most attractive option in many cases, French said.

According to several beach managers who have engaged in negotiations with the state and federal government over permits, the state discusses other options, but its default is to require predator removal, something towns find both expensive and unacceptable to the public.

“It’s not palatable, but it is the cheapest, easiest and most available,” French said.


A few years ago, Sandwich attempted to rebuild protective dunes on beaches near the Cape Cod Canal. Much like the proposal in Winthrop, the town felt the rebuilding would help create new plover habitat as erosion washed the dunes away over time. In Winthrop’s case, they were required to kill rats that could eat plovers and the eggs.

“They said we had to go over and kill all the raccoons, foxes anything else that could kill plovers,” said Sandwich Selectman James Pierce, chairman of the board. “It just wasn’t something we felt we could do in the face of public opinion.”

Orleans and Barnstable also rejected predator control in quests for permits.

In its own handbook, the Fish and Wildlife Service says that Congress created Section 10 permitting in part to reduce conflicts between listed species and economic development activities. The handbook goes on to say the permit process is meant to encourage “creative partnerships” between the public and private sectors and state, municipal and federal agencies.

But off-road advocates like Morris, and a growing number of town officials in communities across the Cape, say creativity and partnership are not what’s happening. Most point to the state Natural Heritage and Endangered Species Program and its chief zoologist, Scott Melvin, saying they are hard to work with.

“The problem isn’t at the federal level. We could get a Section 10 permit, but we have to also get a state conservation permit, and we can’t work with the state in any way,” said Paul Fulcher, the recently retired superintendent of Orleans Parks and Beaches.

Those behind the current regional effort are pointed in saying their intent is to go around Melvin and the Natural Heritage program by putting pressure on those higher up the food chain.

When contacted for an interview, Melvin said he was not permitted to answer questions, that assistant director French was the designated spokesman.

French said each beach requires specific criteria for permitting that isn’t known until it has a detailed plan as part of a completed application.

“We can’t give a yes or no without an application in hand,” French said. “I think most beach managers are afraid of being rejected. They believe what is being asked of them is excessive. We’re not the judge of cost, but we do have to weigh whether what is being proposed as compensation is scaled to the level of the take.”

“Most beach managers have wanted the restrictions loosened without any strings attached,” he added.


French has no doubt that vehicles could return as a major factor in plover deaths if restrictions are lifted. Plovers seemed uniquely programmed to march into extinction.

They love the beach habitat we also love, scratch “nests” out of the sand, depositing tiny camouflaged eggs that hatch equally small camouflaged chicks.

“They are inherently vulnerable based on their life history,” Hecht said. “By dint of a huge amount of effort, we have recovered these populations in the face of huge usage (of the beach by humans.)”

The regulations behind the plover resurgence are enforced by stiff penalties, which can get an offender up to six months in jail and up to a $25,000 fine.

While there are strict controls and monitoring covering nesting areas, there is little known about the dangers plovers face the other two-thirds of the year in their winter grounds in southern U.S. coastal states.

“If we let the population decline and they get hit with something else, we don’t have much of a cushion,” Hecht said. “But we don’t want to seem indifferent to the concerns we’re hearing from Cape communities.”

Massachusetts Audubon Director of Public Policy and Government Relations Jack Clarke said the state is in a tough position and must be cautious. Plovers are on the federal Endangered Species List, and the state and towns could be penalized for policies that allow too many birds to be killed or harassed.

“The commonwealth can negotiate with the towns, but any violation takes the issue completely out of the hands of the commonwealth and puts it at the federal level,” Clarke said. “One of the goals should be to keep it at the state and local level.”

But that process seems hopelessly bogged down.

While his agency has engaged towns over the years in the preliminary phases of the application process, the applicants never follow through, French said.

“We have told towns in the past that we were happy to meet with them. That never resulted in any formal applications to us,” French said.

Coleman said town proposals seeking relief from endangered species restrictions “mostly die on the vine.”

Beach access advocates say conditions proposed by the state to offset potential harm to nesting plovers or least terns are often too harsh to continue a process that drags on for years with no clear path to resolution.

When Orleans attempted to obtain a conservation and management permit back in 2008, it first engaged in two years of negotiations. As the list of demands from Melvin and the state grew, the numbers of vehicles permitted to travel on the beach shrank from around 400 to less than 50, Fulcher said. At $45,000 in annual expenses, including $10,000 to kill predators, selectmen decided it was not worth the effort.

Around that time, the Sandy Neck board of directors also tried getting state permits for hundreds of vehicles a day to bypass plover nests in the spring and early summer and terns in the late summer. After a couple of years of negotiations, the board abandoned the plover permit because the state and federal agencies were insisting on predator control, Coleman said.

After three years, it did receive a state permit that would allow a handful of vehicles to bypass nesting terns on weekends, and it wasn’t worth the effort, Coleman said.

“I’m frustrated myself and I understand there’s a lot of unhappiness, but we don’t have any (Section 10) applications,” Hecht said. “I’m also mindful … that there’s a lot of requirements for review, and we are really short-staffed.”

Recreational fisherman Lou MacKeil, who sat on committees with Melvin and Hecht back in the ’80s and ’90s looking to protect beach access for fishermen and recreational vehicles, is disillusioned and pessimistic about the outcome of any negotiation with state and federal agencies that he said have no desire to share the beach with anything other than birds.

“Why aren’t they (federal and state agencies) making overtures? Why aren’t they contacting towns to ease these restrictions? They are forcing the towns to come to them, and they are still intractable,” said MacKeil, the former president and current vice president of the 300-member Cape Cod Salties.

“Towns are fighting an ideology and that ideology will go to the nth degree. ‘We have this species to protect’ (federal and state agencies say). There is the law. The only way towns will have any success is changing the Endangered Species Act, and good luck with that.”

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