Public Notice Notifications

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Florida - This includes all public notices for projects being reviewed for Standard Permits within the State of Florida.

Antilles - This includes all public notices for projects being reviewed for Standard Permits within the Antilles area (this includes Puerto Rico and the US Virgin Islands).

Tropical Storms & Other Emergencies - These public notices provide information on procedures for emergency permitting requirements due to specific tropical storm events or other emergency situations.

Special Issues - These are public notices that involve the Regulatory program but which are generally not limited to one particular geographic area. These would include public notices for the establishment or modification of Restricted Areas/Danger Zones, re-issuance of General Permits or Nationwide Permits, changes to guidance and policies, etc.

Administrative Penalty - These public notices provide information associated with Administrative Penalties. An Administrative Penalty can be assessed to address violations associated with issued Department of the Army permits.

SAJ-2003-12543 (SP/MOD-RMG)

Published Jan. 15, 2019
Expiration date: 2/5/2019

TO WHOM IT MAY CONCERN:  The Jacksonville District of the U.S. Army Corps of Engineers (Corps) has received an application for a Department of the Army permit pursuant to Section 404 of the Clean Water Act (33 U.S.C. §1344) as described below:

APPLICANT: Oak Creek Bayshore Florida, LLC., c/o Mr. Wade Light, 104 South Wynstone Park Drive, North Barrington, Illinois 60010          

WATERWAY AND LOCATION:  The project would affect waters of the United States associated with Daughtery Creek, which connects to the Caloosahatchee River.  The project site is located north of Bayshore Road (S.R. 78) and west of Interstate 75, in Sections 17 & 23, Township 43 South, Range 25 East, North Fort Myers, Lee County, Florida.

Directions to the site are as follows:  Take Interstate 75 to exit 143, Bayshore Road (State Route 78). Proceed west on Bayshore Road (S.R. 78) for 1.23 miles. There will be an access gate on the north side of Bayshore Road to an unimproved road that transects the parcel.

APPROXIMATE CENTRAL COORDINATES: Latitude 26.72224°, Longitude -81.83961°

PROJECT PURPOSE: Basic: The construction of a multi-family residential development. Overall:  The construction of a multi-family residential development in northern Lee County

EXISTING CONDITIONS:  The parcel for the proposed development totals 304.2 acres in size and is composed of a variety of upland and wetland vegetative communities. Upland communities occupy 236.74 acres of the site and are dominated by 163.05 acres of improved pastureland (FLUCFS 211). The remaining uplands are a mosaic of vegetative types and communities (FLUCFS 261,321,411,422,428,740). The upland vegetation species composition is varied but dominated by bahia grass (Paspalum notatum), scrub oak (Quercus inopina), Brazilian pepper (Schinus terebinthifolius), saw palmetto (Serenoa repens), sabal palm (Sabal palmetto), and slash pine (Pinus ellitotti). This parcel of property is currently being utilized as pastureland for ranging cattle.  The wetland systems total 36.41 acres of the parcel. Of these 36.41 acres, a total of 19.37 acres are jurisdictional wetlands dominated by a mixture of invasive and native plant species. The wetland communities that are to be affected are dominated by slash pine (Pinus elliotti), sawgrass (Cladium jamaicense), pickerel weed (Pontederia cordata), arrowhead (Sagittaria latifolia), maidencane (Panicum hemitomon), Brazilian pepper (Schinus terebinthifolius), and melaleuca (Melaleuca quinquenervia). The upland communities are characterized by an array of plant species dominated by bahia grass (Paspalum notatum), scrub oak (Quercus inopina), Brazilian pepper (Schinus terebinthifolius), saw palmetto (Serenoa repens), sabal palm (Sabal palmetto), and slash pine (Pinus ellitotti). This parcel of property is currently being utilized as pastureland for ranging cattle. The existing area surrounding the project area consists of areas of commercial development and an associated rail line to the east and pasture, single family residences, and scattered areas of forested wetlands and uplands in all other cardinal directions.

BACKGROUND: The original Department of the Army permit, SAJ-2003-12543 issued on 4 April 2008, authorized the development of a 304.2 acre parcel through the construction of a multi-family residential development with an associated 5.62 acre access road, a 0.72 Emergency Access Road stipulated by Lee County during the zoning process, a storm water management system, and the creation of a conservation easement within the parcel totaling 64.73 acres. A total of 8.08 acres of Corps jurisdictional wetlands were permitted to be impacted by the proposed project. A permit modification was issued on 8 January 2014 at the request of the applicant for a 2 year time extension and permit transfer. This time extension expired on 20 October 2015.  This prior time extension has thus expired and the applicant submitted an application for a 5 year time extension for this permit instrument. Construction of the proposed mutli-family residential development has not commenced. The original permit instrument specified as a special condition that on-site mitigation for the unavoidable impacts to Corps jurisdictional wetlands associated with the project commence as soon as these wetlands are disturbed by construction activities. Therefore, mitigation actions have not begun.

PROPOSED WORK:  The applicant seeks authorization to extend the current permit duration for an additional 5 years.

AVOIDANCE AND MINIMIZATION INFORMATION – The applicant has provided the following information in support of efforts to avoid and/or minimize impacts to the aquatic environment: The applicant originally intended to impact a total of 8.63 acres of wetlands but reduced that area to 8.08 acres of unavoidable impacts to wetlands, out of a total of 36.41 acres. This 8.08 acres includes 0.21 acres of wetland impacts from the required Lee County Emergency Access road that was not part of the original design. Additionally, more than half of the wetland impacts are to wetlands that are heavily dominated by invasive species such as Brazilian pepper and Melaleuca and are therefore deemed low quality in terms of function.

COMPENSATORY MITIGATION – The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment: The Permittee shall preserve areas identified in the Compensatory Mitigation Special Condition which was included in the previous permit modification. This includes the preservation and/or enhancement of 28.54 acres of wetlands, 1.08 acres of other waters of the United States, and 35.11 acres of uplands in perpetuity by recording a conservation easement within the boundaries and in accordance with procedures outlined in Special condition No. 36-06013-P of the South Florida Water Management District (SFWMD) permit. This conservation easement was incorporated into the original Corps permit instrument as part of the Compensatory Mitigation Special Condition. These natural preserve areas will not be disturbed by any dredging, filling, land clearing, agricultural activities, planting, or other construction work whatsoever except as required or authorized by this permit. The permittee agrees that the only future utilization of the preserved areas in question will be as a purely natural area. Any deviation from the established conservation easement cannot be performed without a modification to this permit instrument. If the conservation easement is removed for any reason, the Permittee shall provide appropriate federal mitigation credits at a Corps approved mitigation bank to offset the loss of these wetlands.

CULTURAL RESOURCES: The Corps has determined the permit area has been extensively modified by previous work and there is little likelihood a historic property may be affected.

ENDANGERED SPECIES: 

1)       Eastern Indigo Snake (Drymarchon corais couperi)

The Corps has determined that the proposed project will result in a “may affect” determination for the Eastern indigo snake. The Corps will request initiation of formal consultation with the United States Fish and Wildlife Service pursuant to Section 7 of the Endangered Species Act by separate letter.

2)       Florida Bonneted Bat (Eumops floridanus)

The Corps has determined that the proposed project will result in a “may affect” determination for the Florida bonneted bat. The Corps will request initiation of formal consultation with the United States Fish and Wildlife Service pursuant to Section 7 of the Endangered Species Act by separate letter.

3)       Wood Stork (Mycteria americana)

The Corps has determined that the proposed project will result in a “may affect” determination for the wood stork. The Corps will request initiation of formal consultation with the United States Fish and Wildlife Service pursuant to Section 7 of the Endangered Species Act by separate letter.

4)       Florida Scrub Jay (Aphelocoma coerulescens)

The Corps has determined that the proposed project will result in a “may affect” determination for the Florida scrub jay. The Corps will request initiation of formal consultation with the United States Fish and Wildlife Service pursuant to Section 7 of the Endangered Species Act by separate letter.

5)       Red-cockaded Woodpecker (Picoides borealis)

The Corps has determined that the proposed project will result in a “may affect” determination for the red-cockaded woodpecker. The Corps will request initiation of formal consultation with the United States Fish and Wildlife Service pursuant to Section 7 of the Endangered Species Act by separate letter.

ESSENTIAL FISH HABITAT (EFH):  This notice initiates consultation with the National Marine Fisheries Service on EFH as required by the Magnuson-Stevens Fishery Conservation and Management Act 1996. Our initial determination is that the proposed action would not have a substantial adverse impact on EFH or Federally managed fisheries in the Gulf of Mexico. The project site is approximately 2.20 miles from the estuarine environment of the Caloosahatchee River. Our final determination relative to project impacts and the need for mitigation measures is subject to review by and coordination with the National Marine Fisheries Service.

NOTE:  This public notice is being issued based on information furnished by the applicant. This information has not been verified or evaluated to ensure compliance with laws and regulation governing the regulatory program.  The jurisdictional line has been verified by Corps personnel.

AUTHORIZATION FROM OTHER AGENCIES:  Water Quality Certification may be required from the Florida Department of Environmental Protection and/or one of the state Water Management Districts.

COMMENTS regarding the potential authorization of the work proposed should be submitted in writing to the attention of the District Engineer through the Fort Myers Permits Section, 1520 Royal Palm Square Blvd., Fort Myers, FL, 33919 within 21 days from the date of this notice.

The decision whether to issue or deny this permit application will be based on the information received from this public notice and the evaluation of the probable impact to the associated wetlands.  This is based on an analysis of the applicant's avoidance and minimization efforts for the project, as well as the compensatory mitigation proposed.

QUESTIONS concerning this application should be directed to the project manager, Robert Gerwig, in writing at the Fort Myers Permits Section, 1520, Fort Myers, FL 33919; by electronic mail at robert.m.gerwig@usace.army.mil; by facsimile transmission at (239)334-0797; or, by telephone at (239)334-1975. 

IMPACT ON NATURAL RESOURCES: Coordination with U.S. Fish and Wildlife Service, Environmental Protection Agency (EPA), the National Marine Fisheries Services, and other Federal, State, and local agencies, environmental groups, and concerned citizens generally yields pertinent environmental information that is instrumental in determining the impact the proposed action will have on the natural resources of the area.

EVALUATION: The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefits, which reasonably may be expected to accrue from the proposal, must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including cumulative impacts thereof; among these are conservation, economics, esthetics, general environmental concerns, wetlands, historical properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food, and fiber production, mineral needs, considerations of property ownership, and in general, the needs and welfare of the people. Evaluation of the impact of the activity on the public interest will also include application of the guidelines promulgated by the Administrator, EPA, under authority of Section 404(b) of the Clean Water Act or the criteria established under authority of Section 102(a) of the Marine Protection Research and Sanctuaries Act of 1972.  A permit will be granted unless its issuance is found to be contrary to the public interest.

The US Army Corps of Engineers (Corps) is soliciting comments from the public; Federal, State, and local agencies and officials; Indian Tribes; and other Interested parties in order to consider and evaluate the impacts of this proposed activity. Any comments received will be considered by the Corps to determine whether to issue, modify, condition, or deny a permit for this proposal. To make this determination, comments are used to assess impacts to endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. Comments are also used to determine the need for a public hearing and to determine the overall public interest of the proposed activity.

COASTAL ZONE MANAGEMENT CONSISTENCY: In Florida, the State approval constitutes compliance with the approved Coastal Zone Management Plan.  In Puerto Rico, a Coastal Zone Management Consistency Concurrence is required from the Puerto Rico Planning Board.  In the Virgin Islands, the Department of Planning and Natural Resources permit constitutes compliance with the Coastal Zone Management Plan.

REQUEST FOR PUBLIC HEARING: Any person may request a public hearing. The request must be submitted in writing to the District Engineer within the designated comment period of the notice and must state the specific reasons for requesting the public hearing.