Town Disputes CWA Boardwalk Ruling

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Late last week, the Department of Environmental Protection (DEP) denied a Petition by the Town of Fort Myers Beach to prevent the construction of a private boardwalk over the Little Estero Island Critical Wildlife Area (CWA), but provided the opportunity to appeal within 15 days, and the Town will do so.

Estero Island’s southern end is home to the Little Estero Island CWA, a 50-acre protected beach habitat. Two property owners, Texas Holdem, LLC – 8150 Estero Blvd. (Edward and Riley Rood of Carrollton, TX) and Squeeze Me Inn, LLC – 8170 Estero Blvd. (Kurt and Mary Kroemer of Zionsville, IN), seek a DEP permit to construct the private boardwalk to the Gulf of Mexico that environmentalists fear could imperil this endangered natural locale.

In its Petition for Administrative Hearing to the DEP, the Town stated that the Little Estero Island CWA is an environmentally-sensitive area protected under the Town Comprehensive Plan and Environmentally Critical Zoning District for coastal habitat.

The Town disputes that the applicants own all property extending from the mainland to the Gulf of Mexico, and claims 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 and do not demonstrate substantial interest standing. The Petitioner must demonstrate that 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 or nature which the administrative proceeding is designed to protect.”

It continues to say: “The Petition’s allegations regarding local comprehensive plans and land development codes are not within the zone of interest of this environmental permitting proceeding, reflecting that the DEP is not authorized to deny environmental permits based on alleged noncompliance with local land restrictions and comprehensive plans. In view of the above, the Petition must be dismissed without prejudice.”

The 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; renowned ornithologist Roger Tory Peterson declared it the best place on earth to photograph shorebirds. The Town Attorney indicated the Town would file an appeal before the November 5 deadline.

 

Gary Mooney