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SAJ-2015-03786 (SP-JSC)

Published Aug. 8, 2017
Expiration date: 8/29/2017
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: St. Johns River Water Management District
4049 Reid Street
Palatka, Florida 32177

WATERWAY AND LOCATION: The approximately 7-mile Taylor Creek L-73 Levee Improvement Project would affect waters of the United States associated with the Upper St. Johns River Hydrologic Unit (Hydrologic Unit Code 03080101). The project site is located north and south of Taylor Creek Reservoir (TCR), just west of Nova Road, within Sections 30-32, Township 24 South, Range 34 East, Orange County; Sections 5, 8, 9, 16, 21, 28, and 29, Township 25 South, Range 34 East, Osceola County, Florida.

Directions to the site are as follows: From SR 520, proceed south on Nova Road approximately 4 miles – the project site is on the right.

Latitude: 28.34054○
Longitude: -80.93363○


Basic: levee maintenance

Overall: To maintain and improve the existing TCR L-73 levee under current design criteria for extreme storm/flood events, and to repair and prevent further damage resulting from seepage and animals, in Orange and Osceola Counties.

PROJECT HISTORY: The TCR existing L-73 levee was constructed as part of a federal flood control project in 1969 based on the 1962 plan of improvement. The levee top was generally designed and constructed at 53.75 ft. NAVD 88 (55 ft. NGVD) and includes a gated spillway (S-164) at Taylor Creek with a 3000 cfs design discharge capacity. There is an additional gated 48-inch culvert at Cox Creek (S-231), approximately 3.5 miles south of Taylor Creek along L-73. The TCR is currently operated in accordance with the United States Army Corps of Engineers (USACE) water control schedule, and is set to discharge at or above elevation 43 ft NGVD from November through mid-March and 41 ft NGVD from June through mid-August.

EXISTING CONDITIONS: The L-73 levee currently has ongoing erosion issues associated with seepage and animal activities (i.e., gopher tortoise burrows in levee, hog and cattle damage). The original L-73 was constructed solely from sand. There was no clay core or liner constructed within the levee, as is common in current design criteria. As such, it suffers from seepage through the levee, associated with the adjacent open water areas.

This project does not include any consideration for altering the regulation schedule within TCR and no hydrologic changes are anticipated during normal circumstances. Previous design standards accounted for conditions up to the Standard Project Flood (SPF). During extremely high stage and flow conditions associated with storm events greater than the SPF, the current configuration would allow for overtopping, erosion and possible failure of L-73 at any location. Current design standards include consideration of the storm events up to the Probable Maximum Precipitation (PMP). Creation of controlled, armored, emergency spillways would allow for dissipation of these extremely high flood conditions through controlled discharges prior to reaching water levels that would overtop the existing levee. Under extreme storm events these spillways protect the entire levee from uncontrolled failures that create catastrophic risks downstream.

In addition to the spillways, other modifications to the levee will be made in a few places to assure it will continue to function for storm events between the SPF and the PMP. The top elevation of the levee will be raised up to two feet at some locations along the levee to account for new design criteria associated with wind and wave evaluations. Maintenance and repairs along the levee will also be conducted to address erosion and degradation of the levee. The fill being removed from the spillways will be used for the maintenance, repairs and improvements, accomplishing multiple goals.

The proposed improvements consist of several features:
1. Modification to the project levee to allow for controlled passage of water during low frequency, extremely high flow conditions, including construction of emergency spillways at two locations;

2. Maintenance and stabilization of the levee, which has been eroded and degraded by seepage and animal encroachments, including cattle, hogs and gopher tortoises; and

3. Construction of improvements to prevent or minimize future degradation to the levee, including toe drains to prevent erosion of the downstream toe of the levee and fencing to exclude cattle and gopher tortoises.

One proposed spillway will be located at the existing gated 48-inch culvert that is intended to control discharges from the reservoir downstream through Cox Creek to Taylor Creek and eventually the St. Johns River. This structure has failed, is currently inoperable and is stabilized with earthen fill. The spillway will be constructed by excavating material from the levee (as shown on the enclosed exhibits). The material excavated from this area will be used to fill the top of the existing levee in areas that have suffered erosion and damage from cattle and to modify the levee slopes. Any excess material will be used for construction of the maintenance road adjacent to the toe drain. Approximately 375 linear feet of the levee will be excavated from the existing elevation to an elevation of 48.7 ft NAVD. The excavated area will be armored as will the downstream channel extending under Nova Road to protect this area from erosion and scour. This work is specifically called out on the permit sketches and is identified as a unique impact.

The northern spillway, also 375 linear feet in length at elevation 48.7 NAVD, is being constructed in an area and in such a way that it will not impact any wetlands. The offsite area is cattle pasture and any discharge over this spillway would sheetflow across this pasture, eventually flowing into swales and wetlands that discharge to the east into Taylor Creek. This spillway will only discharge water during storm events that exceed the original design conditions for L-73.

The proposed toe drains will ameliorate erosion by managing seepage through the sand levee. Toe drains function by collecting seepage at the base of the levee and discharging it at specific points into swales. This helps prevent the seepage from eroding the outside of the levee along the base. Although not specifically depicted on the sketches, the areas where the toe drain is being installed have been eroded by seepage and need repair. This repair work is being incorporated into the installation of the toe drain and will actually minimize encroachments into the levee base by taking advantage of areas that have been eroded and moving the toe drain within the levee footprint, rather than at the actual toe. The project will require the import of fill material, including clean sand fill, as well as the specific materials designated by the design criteria for sand and gravel filters and riprap.

A final component of the project is the fence that will be constructed along the maintenance road. This area is adjacent to privately-owned cattle pasture and suitable gopher tortoise habitat. Consistent with permit requirements associated with the gopher tortoise removal activities that have been conducted along L-73, the District plans to construct and maintain a fence within the levee right-of-way to exclude gopher tortoises from adjacent lands. The fence is also anticipated to exclude cattle.

Waters of the United States in the project area are described as follows:

Wetland No. 1
Wetland No. 1 is a small isolated herbaceous marsh dominated by soft rush (Juncus sp.) within the existing pasture.

Wetland No. 2 – Cox Creek
Wetland No. 2 is a generally shrub and forested community that includes Cox Creek and associated floodplain swamp and marsh. Vegetation near the creek consists of cypress (Taxodium sp.), and tupelo (Nyssa sp.) in the canopy with minimal understory vegetation. Further from the creek to the south canopy vegetation transitions to bays (Magnolia sp., Persea sp.), red maple (Acer rubrum), and sweetgum (Liquidambar styraciflua). The areas north of the creek (Impact Areas 5-7) are more disturbed systems vegetated primarily with shrubs such as gallberry (Ilex glabra) and saltbush (Baccharis sp.) with minimal canopy.

Wetland No. 3
Wetland No. 3 is a small isolated system dominated by St. Johns wort (Hypericum sp.) and grasses.

Wetland No. 4
This wetland appears to be an isolated extension severed from the larger system to the east by the construction of Nova Road. There is no culvert under Nova Road at this location connecting this system offsite. Vegetation is predominantly small cypress and maple trees with an understory of gallberry and broomsedge (Andropogon sp.), with much of the woody vegetation overrun with grape vine (Muscadine sp.).

Wetland No. 5
Wetland No. 5 is a small isolated wetland vegetated by secondary woody growth including red maple, wax myrtle and saltbush with substantial encroachment by grape vine. There is no culvert under Nova Road at this location connecting this system offsite and there is no apparent historical connection to offsite wetland communities.

Wetland No. 6
This wetland is an isolated shrub system between L-73 and Nova Road. There is no culvert under Nova Road at this location connecting this system offsite. Vegetation is predominantly Brazilian pepper (Schinus sp.).

Wetland No. 7
Wetland No. 7 is contiguous with offsite pasture wetlands to the east through a culvert under Nova Road. The system is dominated by a thick dense stand of red maple, with minimal understory.

Wetland No. 8
Wetland No. 8 is an isolated system with a widely scattered overstory of red maple between L-73 and Nova Road. There is no culvert under Nova Road at this location connecting this system offsite. Understory vegetation includes ferns and grasses.

Wetland No. 9
Wetland No. 9 is contiguous to an offsite wetland strand to the east through a culvert under Nova Road. This mixed hardwood system includes sweetbay, red maple, cabbage palm (Sabal palmetto) and laurel oak (Quercus laurifolia) in the overstory and Brazilian pepper, and saw palmetto (Serenoa repens) in the understory. The edges of this system, including along L-73, also support significant grape vine.

Wetland No. 10 –Taylor Creek and associated floodplain.
Wetland No. 10 includes Taylor Creek and the associated floodplain swamp and marsh. Vegetation south of and near the creek consists of cypress, bay, red maple and sweetgum in the canopy. Much of this area includes an understory of Brazilian pepper, wax myrtle (Myrica cerifera) and saltbush. Areas north of the creek have minimal canopy vegetation and are dominated with shrubs such as wax myrtle, saltbush and St. Johns wort.

Wetland No. 11
Wetland No. 11 is a small isolated system including St. Johns wort and grasses.

Wetland No. 12
Wetland No. 12 is a small isolated wetland vegetated by opportunistic woody species including wax myrtle, saltbush and scattered red maple. This system appears to be isolated from navigable waters and there is no apparent historical connection to contiguous wetland communities.

Wetland No. 13
Wetland No. 5 is a small isolated wetland vegetated by secondary woody growth including red maple, wax myrtle and saltbush with substantial encroachment by grape vine. There is no culvert under Nova Road at this location connecting this system offsite and there is no apparent historical connection to offsite wetland communities.

Wetland No. 14
Wetland No. 14 is an herbaceous marsh system that extends to the northwest and connects with waters of the state. This area is within active pasture and is dominated by soft rush with scattered shrubby vegetation.

PROPOSED WORK: The applicant seeks authorization to impact 24 acres of waters of the United States (including 14.45 acres of fill, 8.55 acres of wetland conversion and 0.99 acres of temporary impact) for maintenance and improvements to the existing L-73 levee at TCR.

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 are no wetland impacts directly related to the levee top improvements and construction of the proposed northern emergency spillway.

The toe drain is being installed at the base of the existing levee, in accordance with standard engineering design principles. The original configuration placed the toe drain at the existing toe of slope, but this has been modified in wetland areas to reduce the width of wetland impacts. The maintenance road was initially designed as a standard 15-foot width, but has been reduced to 12 feet where possible within wetland areas or placed atop the toe drain where feasible. The original design included a swale outside the maintenance road with 4:1 slopes and small exterior berm to hold stormwater and runoff within the District easement. This swale has been deepened so that sufficient depth is maintained without the exterior berm. Within the forested wetlands associated with Cox Creek and Taylor Creek the swale has been eliminated altogether to further reduce wetland impacts and the maintenance road has been shifted over the toe drain. All these design changes have reduced wetland impacts from those in the original design.

The maintenance road is necessary adjacent to the toe drain to allow for access by vehicular traffic to clean and maintain the functionality of the toe drain, cross-pipes and swale, in perpetuity. The limitations for vehicular traffic on the levee slopes and over the toe drain and gravel filter make those areas unacceptable for regular maintenance access, under normal circumstances. In the forested wetlands associated with Cox Creek and Taylor Creek, the toe drain was further stabilized to support the maintenance road. In addition, maintenance areas adjacent to the fence-line were eliminated as this area will be accessible from the upland levee slope.

The swale on the outside of the maintenance road is necessary to receive drainage from the toe-drain system and meet state water quality criteria for stormwater that flows from the outside of the levee and the maintenance road. This swale was eliminated within the forested wetlands to minimize wetland impacts and because there is positive drainage to the creeks.

The initial design for the spillway at Cox Creek included substantially more riprap armoring, because the spillway was designed to be offset from Cox Creek by about 1000 feet to the north. This feature was redesigned to reduce costs and to reduce the amount of impacts associated with armoring in wetlands.

The proposed project is to bring the existing infrastructure up to current design standards. Since this represents a modification of an existing project, alternative locations were not considered.”

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

“The applicant proposes to purchase mitigation bank credits to offset the proposed wetland impacts for the federal Section 404 permit. Rather than expend significant efforts to evaluate the quality and functional values of the wetlands and surface waters proposed for impacts by the project the applicant proposes a simple ratio that would mitigate for these impacts.

Permanent fill impacts to jurisdictional wetland communities will be mitigated by purchasing bank credits at a ratio of 0.75 credit for each acre of permanent fill impact.
Temporary impacts to forested systems associated with clearing and excavation will be mitigated by the purchase of 0.4 bank credit for each acre of impact. Cleared shrub and forested areas will continue as wetlands. The adjacent forested wetland provides a desirable seed source, a seed bank will remain in the cleared areas and wetland soils and hydrology will remain as well. Excavation through wetlands will adversely affect those wetland communities, but the presence of the proposed swale will replace some of the functions and values affected by the construction and may even provide additional values, such as wood stork foraging habitat. These areas will remain jurisdictional surface waters.

Proposed permanent fill impacts to federally jurisdictional wetlands total 13.91 acres, to be offset by 10.5 freshwater forested bank credits. Temporary clearing impacts to forested wetlands total 5.34 acres. Excavation activities that will convert wetland communities to surface waters total 2.05 acres. The applicant proposes the purchase of 3 freshwater forested bank credits to offset the 7.39 acres of wetland conversion impacts in this application.

The total impacts on this project would be offset by the purchase of 13.5 mitigation bank credits at the Colbert-Cameron Mitigation Bank. The project is located within the service area of this 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 indicates a cultural resource assessment survey may be required within portions of 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 indicated no federally listed plant species occur on the project site. The Corps has completed preliminary federally listed species affect determinations which include the following:

Wood Stork
The proposed activity is within the Core Foraging Area (CFA) of six rookeries and the project supports marginally Suitable Foraging Habitat (SFH) for wood stork. The Corps completed an evaluation of the project based upon the U.S. Fish and Wildlife Service (FWS) North Florida Ecological Services Field Offices Programmatic Concurrence for use with the Wood Stork (September 2008). Use of the Key for Wood Stork resulted in the following sequential determination: A (The project is more than 2,500 feet from a colony site.) > B (Project impacts SFH.) > C (Project impacts to SFH greater than or equal to 0.5 acres.) > D (Project impacts to SFH are within the Core Foraging Area of a colony site) > E (The determination is supported by SFH compensation provided within the service area of a mitigation bank which covers the CFA and/or provides an amount of habitat and foraging function equivalent to that of impacted SFH; is not contrary to the Service’s Habitat Management Guidelines For The Wood Stork In The Southeast Region and in accordance with the CWA Section 404(b)(1) guidelines) = NLAA. The Corps has FWS concurrence for the proposed activities through the use of the aforementioned determination key.

Within the Osceola County portion of the work, the Corps has determined the proposed project “may affect, but is not likely to adversely affect” 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 concurrence for the proposed activities through use of the aforementioned determination key.

Eastern Indigo Snake
The Corps has determined the proposed project “may affect, but is not likely to adversely 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 (Project will impact less than 25 active and inactive burrows) > E (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. Permit is conditioned with the standard protection measure for the Indigo Snake) = NLAA. All gopher tortoise burrows, active or inactive, will be evacuated prior to site manipulation in the burrow vicinity. If excavating potentially occupied burrows, active or inactive, individuals must first obtain state authorization via a Florida Fish and Wildlife Conservation Commission (FFWCC) Authorized Gopher Tortoise Agent permit. SJRWMD has entered into a Memorandum of Understanding with FFWCC regarding how gopher tortoise and indigo snake would be treated on the project. The excavation method selected should also minimize the potential for injury of an indigo snake. 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; the permittee agrees to use the Standard Protection Measures for the Eastern Indigo Snake (dated August 12, 2013). The Corps has USFWS concurrence for the proposed activities through use of the aforementioned determination key.

Based on existing habitat types, the Corps preliminarily determined the project will have no effect on 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 24 acres of freshwater wetlands and surface waters which ultimately discharge to the upper St. Johns River. 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 one of the Water Management Districts or Florida Department of Environmental Protection.

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 USFWS, Environmental Protection Agency (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.