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.

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SAJ-2005-07727 (SP-JSC)

Published June 28, 2017
Expiration date: 7/19/2017

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:  D.R. Horton, Inc.
                       c/o Mr. Chris Wrenn
                       6200 Lee Vista Boulevard, Suite 400
                       Orlando, Florida 32822

WATERWAY AND LOCATION: The 1,109.2 acre Kindred (aka Toho Preserve) project would affect waters of the United States associated with the Lake Tohopekaliga Hydrologic Unit (Hydrologic Unit Code 0309010104). The project site is located south of Neptune road and west of the C-31 Canal (St. Cloud Canal), in Sections 25 and 36, Township 25 South and Range 29 East; Sections 1 and 12, Township 26 South and Range 29 East; Section 31, Township 25 South and Range 30 East; and Sections 6
and 7, Township 26 South and Range 30 East, Osceola County, Florida.

Directions to the site are as follows: From US 192, proceed west on Neptune Road approximately 3.4 miles – the project site entrance drive is on the left.

Latitude: 28.26186○
Longitude: -81.36244○


Basic:  Residential / Retail

Overall: Development of a mixed-use community, including commercial and residential, within the Urban Growth Boundary of Osceola County.

EXISTING CONDITIONS: The Kindred project site supports 14 land use type/vegetative communities, as classified by the Florida Land Use, Cover and Forms Classification System, Level III (FLUCFCS, FDOT, January 1999). The attached Figure 5 depicts the vegetative cover and community types for all wetlands, surface waters and uplands within the project boundaries. The uplands on the subject property consist of Single Family Residential (111), Improved Pasture (211), Citrus Groves (221), Shrub and Brushland (320), Palmetto Prairie (321), Upland Forests (400), Pine Flatwoods (411), and Roads and Highways (814). The wetlands and surface waters, totaling 70.09 acres, include Streams and Waterways (ditches-510), Cypress (621), Vegetated Non-forested Wetlands (640), Freshwater Marshes (641), Wet Prairies (643), and Borrow Areas (ponds-742).

Most of the wetland systems throughout the site have been drained by 14.6 acres of ditches, the majority of which were historically cut in wetlands. These ditches are most consistent with the Stream and Waterways (510) classification. A large ditch (or canal) traverses the property from the southeast boundary to the southwest boundary at Lake Tohopekaliga. This ditch drains offsite and several onsite areas and ultimately discharges to Lake Tohopekaliga via a pump. A portion of this ditch abuts wetland areas in the southern region of the property and conveys drainage from these areas to the lake. Three other significant ditches exist within the central and southern regions of the project site and drain southward. These ditches drain the eastern and western regions of the project site, respectively. Additionally, there is a significant drainage ditch that extends to and parallels the southwest property line and ultimately drains to Lake Tohopekaliga.

In the northern region of the property there are two significant ditch systems. The largest ditch exists within the large wetland prairie system that exists north of Henry Partin Road. This system drains the northern areas and directs the collected waters under Kings Highway and to off-site areas to the west. The ditch continues through these properties and ultimately discharges to Lake Tohopekaliga via a different pump. The remaining ditch in the northern region of the property extends northward from an herbaceous marsh wetland that exists adjacent to the north side of Henry Partin Road in the western region of the project. This ditch originates in the pasture areas north of the wetland and drains into the herbaceous marsh.

The applicant has submitted a mitigation bank application to the Corps, which includes wetlands W-1 and W-9, and adjacent uplands. These areas total 486.8 acres and are not included in the1,109.2 acre project area. However, the applicant did not exclude or otherwise clarify future use of these areas on the attached project drawings.

The applicant previously violated the Clean Water Act by the unauthorized placement of fill in 2.4 acres of wetland W-1 for construction of the Kindred entrance road. Environmental Protection Agency (EPA) Region 4 and D.R. Horton have reached a settlement agreement in this matter and the settlement agreement will resolve the unauthorized discharge of dredge and/or fill material into waters of the U.S. The 2.4 acres of unauthorized fill are included in the current request to fill a total of 38.99 acres of waters of the U.S. (19.03 wetland acres, 14.60 ditch acres, and 5.36 pond acres) and will be permitted after-the-fact.

PROPOSED WORK: The applicant seeks authorization to fill 38.99 acres of waters of the United States for development of the 1,109.2 acre Kindred (aka Toho Preserve) project.

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:

“While the site plan was developed with specific goals, the wetland impacts were reduced to the greatest extent practicable. However, certain wetland impacts were determined to be necessary and unavoidable due to specific construction requirements and site constraints. After the consideration of several designs, the design that was most practicable and had the fewest wetland impacts was chosen.”

COMPENSATORY MITIGATION: The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:

“The proposed activities were determined to require 13 different unavoidable wetland impacts, which total 19.03 acres. Due to the size and habitat quality of the smaller wetlands, mitigation to Wetland Nos. W-3 (0.43 ac), W-4 (0.42 ac), W-10 (0.35 ac), W-11 (0.12 ac), W-12 (0.21 ac), and W-15 (0.24 ac) are not proposed. With this consideration, mitigation shall be required for the remaining 17.26 acres of impacts. To offset the proposed 17.26 acres of wetland impacts, credits will be purchased at Florida Mitigation Bank.”

The Corps is not aware of any known historic properties within the permit area, which is defined by the project boundaries, and no information was provided by the Applicant. The Florida Master Site File database does not indicate a cultural resource assessment survey would be required 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 applicant provided no information regarding federally listed species occurrence on the project site. The Corps has completed preliminary federally listed species affect determinations which include the following:

The Corps has determined the proposed project “may affect, but is not likely to adversely affect” wood stork. The proposed activity is within the Core Foraging Area (CFA) of four rookeries; the project supports Suitable Foraging Habitat (SFH) for wood stork. Based on the Effect Determination Key for the Wood Stork in South Peninsular Florida (dated May 2010), the Corps determination sequence is as follows: A (Project impacts SFH at a location greater than 0.47 miles from a colony site) > B (Project impact to SFH is greater in scope than 0.5 acres) > C (Project impacts to SFH within the CFA of a colony site > E (Project provides SFH compensation) = Not Likely to Adversely Affect (NLAA). The project provides SFH compensation within the CFA consisting of enhancement, restoration or creation (and federal mitigation bank credits) that provides an amount of habitat and foraging function equivalent to that of the impacted SFH; in accordance with the Clean Water Act section 404(b)(1) guidelines, and is not contrary to the habitat management guidelines. The Corps has U.S. Fish and Wildlife Service (FWS) concurrence for the proposed activities through use of the aforementioned determination key.

The Corps has determined the proposed project “may affect” the Eastern Indigo Snake. Based on the Eastern Indigo Snake Effect Determination Key (dated January 25, 2010; August 13, 2013 Addendum), the Corps determination sequence is as follows: 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 construction) > C (There are gopher tortoise burrows or other refugia.) > D (The project will impact more than 25 acres of xeric habitat (scrubby flatwoods) or more than 25 active and inactive gopher tortoise burrows) = May Affect. The Corps will initiate formal consultation with FWS.

Based on existing habitat types, the Corps preliminarily determined the project will have no effect on Bluetail mole skink (Eumeces egregious lividus) and Sand skink (Neoseps reynoldsi), Florida bonneted bat (Eumops floridanus), red-cockaded woodpecker (Leuconotopicus borealis), Florida grasshopper sparrow (Ammodramus savannarum floridanus), Everglades Snail Kite (Rostrhamus sociabilis plumbeus), Audubon’s crested caracara (Polyborus plancus audubonii) and Florida scrub jay (Aphelocoma coerulescens).

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 38.99 acres of freshwater wetlands and surface waters which ultimately discharge to Lake Tohopekaliga. Our initial determination is that the proposed action would not have a substantial adverse impact on downstream EFH or Federally managed fisheries. 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 (NMFS).

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.

AUTHORIZATION FROM OTHER AGENCIES: Water Quality Certification will be required from the South Florida Water Management District.

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, Jeffrey S. Collins, in writing at the Cocoa Permits Section (address above), by electronic mail at, or by telephone at (321) 504-3771.

IMPACT ON NATURAL RESOURCES: Coordination with FWS, EPA, the NMFS, 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 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.

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.