Guest Opinion: Dune Walkover Should be Approved

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FDEP, Army Corps & LPA Said Yes

Florida Audubon states our walkover has been struck down time and time again, when in fact the Audubon lost each lawsuit filed to stop our State permits. DOAH Case 18-1451 on the DOAH website allows the public to read the final order, which overruled every objection presented by the Audubon to block permits granted by Florida Department of Environmental Protection (FDEP). The Audubon continues to use these same objections to influence the Town council to block our Special Exception and attempt to sway public opinion against our walkover.

We find it interesting, that just 50 miles east, the Audubon promotes and sells tickets to Audubon Corkscrew Swamp Sanctuary. This is a bird preserve where one can walk a two mile boardwalk, owned by Audubon, in a protected and environmentally sensitive environment, to enjoy bird watching. In contrast, the Audubon says our walkover would be destructive. The Administrative Law Judge presiding over the State hearing addresses Florida Audubon’s statement that birds do not recognize boundaries, by stating, “while birds do not recognize boundaries, regulators must”. This dune walkover project IS NOT in the CWA and thus, has different permitting requirements. We will not accept the Town or Audubon to use the CWA as an excuse to deny our permits.

Florida Audubon states this project is on public land. However, the Audubon has no documents to prove this claim. Why did the Audubon and Town sue the State and us over who owns this land? The suit was dismissed for lack of standing, as the Town nor Audubon own this land. The two parties who do own this land are not contesting ownership. Regardless of ownership, the State and us have entered into a legal agreement that gives us the right to use of the land for a private walkover.

During our rehearing request last week in the last Town council meeting, it was disclosed the Town spent approximately $80,000 in legal fees in a failed attempt to block our State and Federal permits. The Audubon was a partner in the suit, it would reason the Audubon spent as much. The suit consisted of four different lawsuits, each pertaining to the permitting process. The documents related to the suits can all be found online on the DOAH website. The trial consisted of a three-day hearing. The first day we defended why our project met the permitting requirements. The second day, the FDEP defended their permitting process, to assure the project was reviewed correctly. On the third day, the Audubon and the Town’s management stated all objections as to why the permits should be denied. Not one of the objections had factual information or professional studies to back up the Towns and Audubon’s claims. It was ruled our project does not damage the environment, will not be destructive, does not affect turtles, and there are no nesting birds in the vicinity of the project and will actually be a benefit by directing foot traffic through the dune environment and around the CWA. The Town and the Audubon lost the hearing, and yet, they continue to use the same objections to block our Special Exception application.

We received the FDEP Environmental Resource Permit. We received the FDEP Beaches and Dunes Coastal Construction Control Line intent to permit. We received the Army Corp or Engineers Fish and Wildlife permit. We won all four lawsuits against these permits. We brought a 7-0 recommendation by the Town’s LPA board to approve our Special Exception application to town council. Town Council denied our special exception application for reasons not required by the application.

It is the job of State and Federal agencies to protect beaches and dunes and wildlife. Whether private or public, it is proven that walkovers provide a benefit to the environment and wildlife. Walkovers are encouraged in sensitive areas. Walkovers are allowed through a permitting process. We have met these requirements. The town of Fort Myers Beach allows minor structures, such as these walkovers, to be built in EC zoning districts. We have met these requirements.

 

by Eddie Rood, Texas Hold’em LLC and Kurt Kroemer, Squeeze Me Inn LLC

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