SAJ-2022-02808(SP-JPF)

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) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. §403) as described below:

WATERWAY AND LOCATION:  The project would affect waters of the United States, including wetlands, associated with Pelican Bay/Hurricane Pass. The project site is located on a 0.32-acre parcel, located along Pelican Bay/Hurricane Pass, on Lot #4 (Lee County Parcel ID No. 13-46-23-01-00005.0040), at 977 Prescott Street, Section 13, Township 46 South, Range 23 East, in Fort Myers Beach, Lee County, Florida.

Directions to the site are as follows:  From San Carlos Boulevard (FL-865) in Fort Myers Beach, continue south on San Carlos Boulevard, turn right (west) on Prescott Street. The undeveloped parcel is located on the north side of Prescott Street.

PROJECT PURPOSE: Basic:  Residential housing

Overall:  Construct a single-family house and dock with navigational access to the Gulf of Mexico in Lee County, Florida

EXISTING CONDITIONS:  The 0.32-acre project area is located within a portion of Section 13, Township 46 South, Range 23 East, Lee County, Florida. The parcel is bordered to the east and west by mangrove swamps, to the north by Pelican Bay, and to the south by Prescott Street. The Corps previously issued a permit (SAJ-2019-03237) for 0.18 acre of fill for a single-family residence and a dock on the lot immediately west of the project site, and a permit (SAJ-2021-00702) for 0.12 acre of fill for a single-family residence and a dock four lots west of the project site.

The applicant states that the site includes 0.02 acre of saltwater marsh area (FLUCCS 642) along the south side of the lot, along Prescott Street, 0.19 acre of mangrove swamps (with some exotic infestation) (FLUCCS 612) and 0.03 acre of tropical hardwoods (with some exotic infestation) (FLUCCS 426) in the middle, and 0.08 acre of open water (FLUCCS 540) to the north.

PROPOSED WORK:  The applicant seeks authorization to construct a single-family residence on the 0.32-acre parcel, including the permanent fill and loss of 0.18 acre of estuarine marsh and mangrove wetlands associated with the lot fill, driveway, and retaining wall, and the construction of a 4-foot-wide by 100-foot-long private dock and accessway with an 8-foot-wide by 20-foot-long terminal platform, and two (2) vertical boatlifts (12-foot by 20-foot boatlift and 15-foot by 30-foot boatlift).

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:  No practicable alternative exists to the proposed project which would satisfy the overall project purpose that has less adverse environmental impact and was available and capable of being acquired and developed, taking into consideration location, development status, cost, logistics, and size. The proposed fill area is the minimum area practicable for a residence in this location.

COMPENSATORY MITIGATION :The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:  Compensatory mitigation for the direct and indirect impacts is proposed via the purchase of 0.2 estuarine mitigation credits from Little Pine Island Mitigation Bank (SAJ-1994-00037).

CULTURAL RESOURCES:  The Corps is evaluating the undertaking for effects to historic properties as required under Section 106 of the National Historic Preservation Act. This public notice serves to inform the public of the proposed undertaking and invites comments including those from local, State, and Federal government Agencies with respect to historic resources. Our final determination relative to historic resource impacts may be subject to additional coordination with the State Historic Preservation Officer, those federally recognized tribes with concerns in Florida and the Permit Area, and other interested parties.

ENDANGERED SPECIES:  The project is located within critical habitat for the small-tooth sawfish and West Indian manatee, within the consultation area for the Florida bonneted bat, and within suitable habitat for the American crocodile, eastern indigo snake, and loggerhead, green, and Kemp’s-ridley sea turtles.

American crocodile: Due to the lack of suitable nesting habitat, and the unlikely occurrence of the species within the project area during construction, the Corps has determined that the proposed activity will have no effect on the American crocodile, and no further consultation is necessary.

Eastern indigo snake: The project impacts approximately 0.21 acre of potential eastern indigo snake habitat (mangrove swamp and tropical hardwoods). The Corps permit, if issued, will include standard protection measures. The Corps is not aware of any sightings of eastern indigo snakes within the project area. Use of August 1, 2017, effect determination key for the eastern indigo snake in south Florida resulted in an effect determination of ‘may affect, not likely to adversely affect, no further consultation required’ (A-B-C-D-E) and gave programmatic concurrence for the indigo snake.

West Indian manatee: West Indian manatee: The site of the proposed work is within an area designated as critical habitat for the West Indian manatee, as well as an Important Manatee Area. The project provides new access for watercraft, and will have insignificant or discountable impacts to submerged aquatic vegetation, emergent vegetation, or mangroves, based on the applicant’s proposed compliance with the Dock Construction Guidelines. The applicant will follow standard manatee conditions for in-water work and requirements as appropriate for the proposed activity, and those conditions will be part of the Corps authorization for the proposed work. Use of The Corps of Engineers, Jacksonville District, and the State of Florida Effect Determination Key for the Manatee in Florida, April 2013 with May 2019 Addendum resulted in an effect determination of ‘may affect, not likely to adversely affect, no further consultation required’ (A-B-C-D-G-H-I-N-O-P) and gave programmatic concurrence for the manatee.

Florida bonneted bat (FBB): The applicant’s agent stated that they conducted limited roost surveys on July 22, 2022, and did not identify any snags or structures that could potentially have FBB roost cavities. The applicant agrees to comply with Best Management Practices 1, 5, 7, 9, 11, and 12 from Appendix D of the October 19, 2022, consultation key for the FBB. Use of that key resulted in a determination of ‘may affect, not likely to adversely affect, no further consultation required’ (1a-2a-3a-4b) and gave programmatic concurrence for the FBB.

Small-tooth sawfish and sea turtles: The Corps evaluated the proposed work utilizing NMFS’s Jacksonville District’s Programmatic Biological Opinion (JAXBO) dated 20 November 2017. The JAXBO analyzes the effects from 10 categories of minor in-water activities occurring in Florida and the U.S. Caribbean on sea turtles (loggerhead, leatherback, Kemp's ridley, hawksbill, and green); small-tooth sawfish; Nassau grouper; scalloped hammerhead shark, Johnson's seagrass; sturgeon (Gulf, shortnose, and Atlantic); corals (elkhorn, staghorn, boulder star, mountainous star, lobed star, rough cactus, and pillar); whales (North Atlantic right whale, sei, blue, fin, and sperm); and designated critical habitat for Johnson's seagrass; smalltooth sawfish; sturgeon (Gulf and Atlantic); sea turtles (green, hawksbill, leatherback, loggerhead); North Atlantic right whale; and elkhorn and staghorn corals in accordance with Section 7 of the Endangered Species Act. Based on past permitting practices of the Corps and review of consultations with similar in-water construction activities, Project Design Criteria (PDCs) were identified in the JAXBO that typically have been applied to permitted in-water construction activities. These PDCs ensure effects of in-water construction activities are minimal in nature and do not result in adverse effects to listed species or to essential features of designated CH. For this application, the Corps conducted a project specific review to ensure that all of the PDCs were met.

The Corps has determined that the dock construction may affect but is not likely to adversely affect swimming sea turtles and small-tooth sawfish. In accordance with the project-specific review process established in the JAXBO, the Corps will e-mail PDC checklists, certification that the activity meets the applicable PDCs, and supporting documentation for the proposed activity to nmfs.ser.statewideprogrammatic@noaa.gov and jaxbo@usace.army.mil. After sending that e-mail, the Jacksonville District will have satisfied the project-specific review requirements stipulated in the JAXBO and satisfied its obligation under the ESA for the above-listed species and critical habitats within the NMFS purview.

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. The majority of the impacts associated with this project are above/landward of the Mean High Water Line (MHWL), based on the information submitted. The proposal would impact approximately 0.01 acre below the MHWL of seagrass and bay bottom habitat utilized by various life stages of reef fish, coastal migratory pelagics, shrimp, and other species in the Gulf Mexico. 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. 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.

Navigation: The proposed structure is not located in the vicinity of a federal navigation channel.

SECTION 408: The applicant will not require permission under Section 14 of the Rivers and Harbors Act (33 USC 408) because the activity, in whole or in part, would not alter, occupy, or use a Corps Civil Works project.

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 not been verified by Corps personnel.

COMMENTS regarding the potential authorization of the work proposed should be submitted in writing to the attention of the District Engineer either through the Tampa Permits Section, 10117 Princess Palm Avenue, Suite 120, Tampa, FL 33610-8300, or preferably to john.p.fellows@usace.army.mil, within 30 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, John Fellows, in writing at the Tampa Permits Section, 10117 Princess Palm Avenue, Suite 120, Tampa, FL 33610-8300; by electronic mail at john.p.fellows@usace.army.mil; or, by telephone at (813) 769-7070. 

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.

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.

WATER QUALITY CERTIFICATION: This project requires Water Quality Certification from the Florida Department of Environmental Protection (FDEP). FDEP issued Environmental Resource Permit number 422605-001 EI for the project on February 20, 2023.

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.