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: CPP II, LLC
Attn: Ken Fulmer
2281 Lee Road, Suite 204
Winter Park, Florida 32789
WATERWAY AND LOCATION: The project would affect waters of the United States associated with the Banana River. The project site is located on the east side of State Road (SR) 3 approximately 1 mile north of the intersection of State Road 528, in Section 11, Township 24 South, Range 36 East, on Merritt Island, Brevard County, Florida.
Directions to the site are as follows: From the intersection of SR 528 and SR 3 proceed 1 mile north on SR 3. The site is located on the east side of the road just north of 3420 N. Courtney Parkway.
APPROXIMATE CENTRAL COORDINATES: Latitude 28.4183°
Longitude -80.7037°
PROJECT PURPOSE:
Basic: Residential Development
Overall: Construction of a residential subdivision on north Merritt Island (north of SR 528), Brevard County, Florida.
EXISTING CONDITIONS: The project area totals 41.94 acres; consisting of two individual parcels. The project area includes the main parcel that was developed as a citrus grove and the second is a narrow parcel that connects the former citrus grove to SR 3. The project site contains one 0.34 acre freshwater wetland which is located in the northwest corner of the site. The wetland is comprised of Brazilian pepper with a few red maple seedlings and cabbage palms in the canopy. The understory consists of swamp fern, wax myrtle, grapevine, peppervine, wedelia, and greenbriar. The wetland is hydrologically connected to the roadside drainage conveyance along the east side of SR 3.
The remainder of the subject area is an abandoned citrus grove with associated open space and drainage conveyances. As a result, of reduced maintenance efforts the grove has become overgrown in many areas. Brazilian pepper trees have taken over in upland areas while cattails and primrose willow occupy many of the ditches that were previously open water conveyances which were used to drain and irrigate the grove. The grove is surrounded by surface water ditches with undeveloped lands to the north, south and east.
The perimeter ditches are overgrown with Brazilian pepper, cattails and/or primrose willow and the interior ditches are vegetated with cattails, primrose willow, hydrilla, water hyacinth, duckweed, pennywort, cowlily and Brazilian pepper. The slopes are steep at a 1:1 grade in most places and water levels are typically around 4-5 feet. Some areas that are shallower are fully covered by Brazilian pepper. There are five areas that typically hold 2-3 feet of water and do not have a canopy overhead.
A pine-mesic oak upland community occurs east of the wetland before entering the citrus grove.
PROPOSED WORK: The applicant seeks authorization to impact 5.26 of waters of the United States to construct a residential subdivision and the associated infrastructure.
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:
There is little opportunity for avoidance on this proposed project based on existing locations of surface waters and Wetland 1. However, the project has been designed to avoid other waters and wetland impacts to the greatest extent possible. In order to access the main property from SR 3, wetland impacts are required. Due to positioning of the wetland, there is no way to gain access to the upland areas without constructing a road through the middle of the 0.34 acre wetland. Once a roadway is constructed, only small slivers of Brazilian pepper wetlands would remain and therefore, a total loss is assumed. Onsite grove ditches utilized for irrigating the citrus trees will be impacted for construction along with manmade surface water ponds. Large stormwater ponds will be constructed onsite and a littoral shelf will be constructed in the northeast corner of the parcel to offer wildlife foraging areas.
COMPENSATORY MITIGATION – The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:
In order to offset unavoidable impacts to wetlands and surface waters, onsite mitigation is proposed to satisfy ACOE, SJRWMD and County requirements. The proposed impacts are not within a service area for any approved mitigation banks and as such, a credit purchase to offset impacts is not an option. The only existing wetland onsite will be impacted by the development, so enhancement efforts are not possible. Large stormwater ponds will be constructed onsite which allows for the creation of littoral shelves, creating valuable, long-term, environmentally beneficial habitat. The proposed creation area more than adequately offsets the loss of low quality wetlands and surface waters.
Along the northern and eastern property line in the northeast corner of the site,
742 linear feet of littoral shelf is proposed within the stormwater pond. A 25 foot strip along the pond will be graded as shown on the plan sheets to create a natural lakeside community. Vegetative strips will be installed for the entire length, creating 0.43 acres of freshwater marsh and forested wetland habitat. The construction plans show the proposed shelf along with plant species and elevations. The 0.43 acre creation area will be maintained and monitored for a period of three years and will be subject to success criteria.
The mitigation proposal offers greater long term ecological benefit than the loss of habitat that is proposed.
CULTURAL RESOURCES: The Corps is not aware of any known historic properties within the permit area. By copy of this public notice, the Corps is providing information for review. Our final determination relative to historic resource impacts is subject to review by and coordination with the State Historic Preservation Officer and those federally recognized tribes with concerns in Florida and the Permit Area.
ENDANGERED SPECIES: The property is located within the United States Fish and Wildlife Service’s (FWS) Consultation Area for the Atlantic salt marsh snake, eastern indigo snake, wood stork, piping plover, and Florida scrub jay. The proposed work area does not contain habitat suitable for the Atlantic salt marsh snake, Florida scrub jay, or piping plover. None of the species listed above were observed by the applicant’s consultant during site assessments. The Corps has determined the proposed work would have no effect to the Atlantic salt marsh snake, piping plover, or Florida scrub jay.
The Corps completed an evaluation of the project based upon the August 13, 2013 updated addendum to the January 2010 North and South Florida Ecological Services Field Offices Programmatic Concurrence for use with the Eastern Indigo Snake. Use of the Key for the Eastern Indigo Snake resulted in the following sequential determination: A (The project is not located in open water or salt marsh.) >B (The permit will be conditioned for use of the Service’s Standard Protection Measures for the Eastern Indigo Snake during site preparation and protection construction.) >C (There are gopher tortoise burrows, holes, cavities, or other refugia where a snake could be buried or trapped and injured during project activities.) >D (The project will impact less than 25 acres of xeric habitat (scrub, sandhill, or scrubby flatwoods) or less than 25 active and inactive gopher tortoise burrows.) >E (Any permit will be conditioned such that all gopher tortoise burrows, active or inactive, will be evacuated prior to site manipulation in the vicinity of the burrow. If an indigo snake is encountered, the snake must be allowed to vacate the area prior to additional site manipulation in the vicinity. Any permit will also be conditioned such that holes, cavities, and snake refugia other than gopher tortoise burrows will be inspected each morning before planned site manipulation of a particular area, and, if occupied by an indigo snake, no work will commence until the snake has vacated the vicinity of proposed work.) = Not Likely to Adversely Affect (NLAA) with the applicant adherence to the standard protection measures for the Eastern Indigo Snake. Based upon the NLAA determination for the Eastern Indigo Snake no further coordination is required.
Based upon review of the Wood Stork Key for Central and North Peninsular Florida dated September 2008, the proposed project resulted in the following sequential determination: A > B > C > D > E = “NLAA” the wood stork. This determination is based on the project not being located within 2,500 feet of an active colony site; impacts to suitable foraging habitat (SFH), project impacts to SFH are greater than 0.5 acre, project impacts to SFH are within the CFA of a colony site, or wood storks have been documented foraging on a project site outside the CFA, project provides SFH compensation in accordance with the Clean Water Act section 404(b)(1) guidelines and is not contrary to the Habitat Management Guidelines; habitat compensation is within the appropriate CFA or within the service area of a Service-approved mitigation bank. Based upon the NLAA determination for the wood stork no further coordination is required.
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 proposal would impact approximately 0.34 acres of freshwater wetlands and 3.66 acres of other waters which may contribute detrital matter to federally managed species within the Banana River and the overall Indian River Lagoon. Our initial determination is that the proposed action would not have a substantial adverse impact on EFH or Federally managed fisheries in the Banana River or Indian River Lagoon based on the minimal functional value of the site. 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 Cocoa Permits Section, 400 High Point Drive, Suite 600, Cocoa, Florida 32926 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, Andrew Phillips, in writing at the Cocoa Permits Section, 400 High Point Drive, Suite 600, Cocoa, Florida 32926; by electronic mail at andrew.w.phillips@usace.army.mil; by facsimile transmission at (321)504-3803; or, by telephone at (321)504-3771 extension 14.
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.