In Volusia, federal permit largely steers beach driving, not political whim

Mary Helen Moore
The Daytona Beach News-Journal

DAYTONA BEACH — New Volusia County Chair Jeff Brower has put beach driving back in the spotlight in recent months, vowing to both let cars back on the beach in areas where they aren't allowed today and prevent further prohibitions from going into effect.

"You now have a voice in Volusia County," he told a crowd of beach driving supporters at a December fundraiser.

But most areas where beach driving is restricted today are not governed by county law at all. Instead, the issue is largely steered by a U.S. Fish and Wildlife Service permit protecting endangered species that visit Volusia County's shore. Or, the land falls within state and federal parks that make their own rules.  

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Cars and pedestrians mingle near Andy Romano Park in Ormond Beach recently. Of Volusia County's 47 miles of coastline, driving is permitted on about 17 miles.

The county has voluntarily restricted beach driving on about 1.2 miles of sand in the past two decades, including a 410-foot segment behind the Hard Rock Hotel that Brower has been lobbying to open back up to vehicles.

The renewed spotlight on what Brower termed "poison poles" because of their treatment with a carcinogenic pesticide led to a closed-door meeting Thursday between Brower, Hard Rock owner Abbas Abdulhussein and a handful of others.

But opening the beach back up to vehicles carries its own environmental concerns that may attract the attention of the federal government.

A green sea turtle named Poppins is the Marina Science Center's 25,000th intake in Ponce Inlet, Monday, Nov. 23, 2020.

"Beach driving drastically alters the ability of wildlife to use the beaches," said Chris Farrell, northeast Florida policy associate for the Florida Audubon Society.

The endangered species at the heart of Volusia County's beach driving restrictions are five kinds of sea turtle that nest here from May to October, as well as the piping plover, a small bird that winters along the shore.

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What the permit did (and didn't) do

Volusia County has governed the shoreline since a 1986 county charter amendment eliminated a complicated network of different rules that applied in each city. The county manages about 36 miles of Volusia’s 47-mile coast, with the rest under state or federal control.

The majority of beach driving limitations in effect today are rooted in the 1990's, when environmentalists Shirley Reynolds and Rita Alexander sued the county on behalf of its sea turtles.

There were nearly 26 miles of coast on which cars could drive at the time.

More than 20 miles in the northern and southern reaches of the county were restricted to vehicles, including 9.9 miles under the county’s jurisdiction and the rest within Canaveral National Seashore and North Peninsula State Recreation Area.

All kinds of wildlife visit or make their homes on Volusia County shores, some of which are protected under the federal Endangered Species Act of 1973.

Beach driving in Daytona Beach Shores, Friday, Feb 5, 2021.

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When an endangered species was killed, injured or otherwise impacted by a vehicle on the beach, Volusia County was deemed legally responsible because they were the ones allowing people to drive on the beach, meaning they needed the federal government's permission to continue the practice. The USFWS granted that permission in 1996 in the form of an "incidental take" permit.

"You have to make your laws in a way that don’t harm endangered species," Florida State University law professor Shi-Ling Hsu explained. "'Take' is very broadly defined. There are some kinds of boundaries, but generally speaking, you can do a lot of things that result in a 'take.' And therefore a lot of things can get you in trouble."

Hsu likened incidental take permits to a "release valve" on the Endangered Species Act, allowing governments and companies to do their best for certain species in situations where take is inevitable.

"We know you’re going to 'take' the animals that are listed, but we'll give you a permit if you do these nice things," he said, walking through USFWS logic. "If the mitigation measures are good enough, we’re going to say that occasional take is OK."

Mitigation factors laid out for Volusia County include:

  • Establishing zones where driving is banned;
  • Closely monitoring sea turtles and piping plovers;
  • Conducting annual surveys for migratory shorebird nests;
  • Limiting driving to daylight hours;
  • Enforcing a 10 mph speed limit in marked­­ lanes; and 
  • Removing ruts and tire tracks.

The USFWS also requires a management plan for beach lighting, but that was separated from the permit in 1998 and is enforced separately. Sea turtle hatchlings trying to reach the ocean at night can become disoriented by bright lights on the shore and may wander in the wrong direction.

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Establishing the no-driving zones knocked down the area where beach driving is allowed from 26 miles to about 17 miles.

Before sea turtle nesting season in 2000, the county closed another mile in the heart of Daytona Beach to promote tourism and support the city's community redevelopment initiative. 

Beach driving in Daytona Beach Shores, Friday, Feb 5, 2021.

Smaller no-driving zones have popped up twice this decade — 600 feet in front of Andy Romano Park when it opened in 2013, and 410 feet in front of the Hard Rock Hotel in 2018.

The restrictions behind the Hard Rock are tied to a 2015 county ordinance that allows for the prohibition of driving on about a quarter mile of sand in Daytona Beach behind resorts that meet certain criteria. The Hard Rock has been the only hotel to take advantage.

In 2005, the permit came before a federal judge and was renewed until 2030. The piping plover was added to the permit that year, and another mitigation component required: a sea turtle rehabilitation facility at the Marine Science Center in Ponce Inlet.

That facility marked a milestone in November when it took in Poppin, its 25,000th turtle patient.

Environmental concerns

Driving on the beaches produces a variety of environmental concerns, according to Farrell, who works in Audubon Florida's 16-county northeast region.

The commotion that comes with driving cars on the beach repeatedly startles birds, flushing them from their nests or spots they’ve come to feed.

"The main thing they need is freedom from disturbance," Farrell said.

Farrell likened flushing birds, startling them so they suddenly fly away, to “basically taking food out of their mouths.”

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Take the red knot, for example. The migratory bird — described in Audubon’s field guide as a "chunky shorebird" that is "unmistakable in spring, when it wears robin-red on its chest" — has been known to travel from the far reaches of the Arctic Circle to Tierra del Fuego, islands off the southernmost tip of South America. It’s also been spotted all along Florida’s coast, including in Volusia County.

"They use our shores for foraging and resting. They fly from the top to the bottom of the earth, so every single calorie is important to them," Farrell said.

Some imperiled shorebirds, including piping plovers and American oystercatchers, create "scrapes," small depressions near the dunes, where they lay their eggs.

The birds, nests and young are all highly camouflaged, which can make them vulnerable to passing cars.

There's also pollution and litter to worry about.

"Cars can deposit many harmful chemicals into our beach habitats including brake dust, oil and gas," Farrell said. 

Leaving trash behind on the beach attracts gulls, raccoons and other predators that harm shorebirds and sea turtle nests.

"When people come with the cars, they tend to bring more stuff," Farrell said.

A Jeep pulls up the Granada Blvd. beach ramp, Wednesday February 3, 2021, where soft sand makes it a fouir wheel drive only.

Hsu said it was rare for pollution to factor into an incidental take permit. That's more likely to fall under the Environmental Protection Agency. However, the USFWS can take it into account if the pollution is severe or the species is particularly vulnerable, such as for beluga whales affected by oil and gas activity along the Alaskan coast.

"Generally, we don’t go there," he said. "It’s a little bit too tenuous of a connection."

According to a 2020 county report, no vehicles have hit marked sea turtle nests in the county since the permit was first granted. An unmarked nest was run over in 2013 and no hatchlings emerged, but the blame for that was attributed to tidal flooding.

A juvenile green sea turtle stranded onshore was run over in 2008, most likely by a beach safety vehicle, according to the county.

A handful of hatchlings are generally killed each year, with the county marking 28 deaths in the past two decades.

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Sometimes those deaths occur when hatchlings land in ruts on the beach, but more often hatchling sea turtles that don't make it past the breaking waves are washed back onshore and run over. Hundreds of these so-called "post-hatchling washbacks" are cared for each year at the Marine Science Center.

Beach driving in Daytona Beach Shores, Friday, Feb 5, 2021.

In 2019, the most recent year for which data has been released, four species of sea turtles laid eggs in 984 nests throughout the county. That tops the 919 nests recorded in 2012, the previous high since the county began keep track more than two decades ago.

The no-driving zones were chosen carefully. County data shows 80 percent of sea turtle nests found each year are in areas where driving in banned.

Beach driving affects the structure of the shoreline, leaving it more vulnerable to erosion, a problem compounded by storms and sea level rise. Each year, the stakes delineating conservation zones on the dunes west of driving lanes get moved a few feet closer to the ocean in some part of the county or another.

Beach driving in Daytona Beach Shores, Friday, Feb 5, 2021.

Farrell said habitat recovery has been dramatic in places where beach driving has been banned, such as Anastasia State Park in St. Johns County, which banned vehicles in 2000 after a pair of sunbathing teens were run over by an SUV.

"With the way that the beach is used now, the wildlife has really taken advantage," Farrell said. "It’s a really incredible sight. It shows the harm that we couldn’t see. When we gave the birds the space, the birds responded.”

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Looking to 2030

With less than a decade before the incidental take permit comes before a federal judge for another renewal, some beach driving advocates are already worried.

At Brower's first council meeting, he was the sole no vote on a contract for a nearly $1 million parking lot that will add 61 parking spaces along A1A in Daytona Beach Shores.

One of the mitigation provisions in the county's permit requires Volusia County "continue efforts to increase off-beach parking capacity," and Brower said he worries that could be a precursor for eliminating beach driving.

Volusia County Chair-elect Jeff Brower speaks at Sons of the Beach fundraiser/party event at Crabby Joe's in Daytona Beach Shores, Saturday, Dec. 12, 2020.

Hsu said the USFWS focus will be on how to protect wildlife, and whether there's adequate parking for beachgoers is not something the federal judge should weigh.

"The judge isn't supposed to do that," Hsu said. "That has nothing to do with whether or not you're going to hurt sea turtles." 

Hsu said relaxing restrictions — that is to say, opening up more of the coast to vehicles — was unlikely, but not out of the question.

"I guess the permit could be negotiated," he said. "If the politics are right, sure. I don’t think it happens a lot."

But as long as the sea turtle and bird species remain protected, the permit will be required.

Beach driving in Daytona Beach Shores, Friday, Feb 5, 2021.

Farrell said it's difficult to imagine how vibrant the habitats once were and how many species could thrive given the opportunity.

"We definitely don’t want to move backwards," he said. "In fact we need more protection."

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