Town Disputes Boardwalk Ruling


CWA On Trial

The southern end of Fort Myers Beach is home to The Little Estero Island Critical Wildlife Area (CWA), a 50-acre protected habitat established in 1992 that features a vast array of shorebirds unlike any place else on earth. Two rental condominium complexes, however, are seeking a Department of Environmental Protection (DEP) permit to construct a private beach boardwalk to the Gulf of Mexico that could imperil this endangered natural habitat.

Texas Holdem, LLC, from Texas and Squeeze Me Inn, LLC, from Indiana are requesting the DEP approval. The Town became aware of this on September 29, 2016, with Council unanimously passing a motion at its October 3, 2016, meeting to protest this action, and directed staff to initiate appropriate measures including potential litigation. The DEP subsequently denied the Petition, causing the Town to appeal by the November 5, 2016, deadline.

In its Petition for a DEP Administrative Hearing, the Town stated the Little Estero Island CWA is an environmentally-sensitive area protected under the Town’s Comprehensive Plan as well as its Environmentally Critical Zoning District for coastal habitat. The Florida Audubon Society issued its own DEP petition, and it and the Town merged their positions into a united front. The Administrative Hearing will occur beginning Monday, June 12, in the Fort Myers Beach Town Hall Council Chambers at 9 a.m., with the proceedings potentially lasting up to one week.

In the opinion of the Town, the two rental units cannot access the beach because of the wetland between their buildings and the Gulf of Mexico. The Town disputes the applicants own all property extending from the mainland to the Gulf of Mexico, that the applicants have sufficient title for the boardwalk over the CWA to the Gulf beach, and that the Little Estero Island CWA is safe under the Town’s Land Development Code to provide critical nesting and foraging habitat to threatened, rare, and declining bird species for the public benefit of future generations. The DEP’s issuance of the Environmental Resource Permit to construct this private boardwalk sets the stage for the proliferation of others that could lead to the loss of one of the few environmentally-sensitive areas remaining on Fort Myers Beach.

In its Order to Dismiss, the DEP ruled against the Town “without prejudice because the Petitioner’s allegations are insufficient. The Petitioner must demonstrate it will suffer injury-in-fact that is of sufficient immediacy to entitle it to a hearing, and that the injury is of a type that the administrative proceeding is designed to protect. The Petition’s allegations regarding local comprehensive plans and land development codes are not within the zone of interest, reflecting that the DEP is not authorized to deny environmental permits based on alleged noncompliance with local land restrictions and comprehensive plans. Therefore, the Petition must be dismissed without prejudice.”

Department of Environmental Protection, fort myers beachThe Little Estero Island CWA is a favorite spot for birders, a significant nesting area, and an important over-wintering spot for at least 68 species of endangered shore and wading birds such as Snowy Plovers; Least Terns; and American oystercatchers, as well as nesting sea turtles. Renowned ornithologist Roger Tory Peterson declared it the best place on earth to photograph shorebirds. These birds like a habitat with a lot of sand and little vegetation, making our beaches perfect. It is such a crucial nesting area that the FWC closes off this stretch to trespassing annually from April 1 to August 31, with posted signs, stakes and ribbon.

The Florida Fish and Wildlife Conservation Commission (FWC) established CWAs to protect important wildlife concentrations from human disturbance. There are currently more than 20 across Florida, with several new CWAs recently established for nearby Fort Myers Beach islands.

During the Fall migration, millions of shorebirds come to the Florida coastline and remain here throughout the Winter. They are exhausted, hungry and at the end of their endurance, needing food and rest to continue. Barrier islands and sandbars are favorite sites because they afford protection from predators and the elements.

The Town’s regulations prevent the building of permanent structures like the beach boardwalk inside the Little Estero Island CWA. The Town maintains that these safeguards preserve seagrass that affords endangered species protection, food and areas to lay eggs. Boardwalk handrails are ideal landing spots for predatory birds that will significantly threaten endangered shorebirds and their nesting sites. Garbage from human use can foul the wetland ecosystem and kill wildlife, while boardwalk pilings may potentially leach chemicals into the estuary system to threaten shellfish, invertebrates, and fish.

If you witness anyone violating the Little Estero Island Critical Wildlife Area, immediately contact the FWC’s Wildlife Alert Hotline at 888-404-FWCC (3922), the Lee County Sheriff’s Office at 911 or 239-477-1000, or the Town of Fort Myers Beach at 239-765-0202. For more information on Critical Wildlife Areas visit


Gary Mooney