PROPOSAL: To simplify and streamline permitting of Department of Army (DA) permits, the Jacksonville District, U.S. Army Corps of Engineers (Corps) is proposing to update and re-issue the above-listed RGP. A draft of the proposed general permit conditions is provided, below.
BACKGROUND: On March 21, 2013, the Corps reissued the above referenced general permit for bulkheads and backfill in residential canals in the State of Florida. This general permit was originally issued in the mid-1970s pursuant to Section 10 of the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act, and has been reviewed and reissued every five years since then. According to the Corps’ ORM 2 database, during the time period October 10, 2012 through October 10, 2017, the SAJ-46 has been utilized a total of 224 times. Please note, the category of work has been expanded; therefore, the title of the general permit has changed from Bulkheads and Backfill in Residential Canals in Florida to Shoreline Stabilization in Florida.
AUTHORITY: Upon recommendation of the Chief of Engineers, pursuant to Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403), and Section 404 of the Clean Water Act (33 U.S.C. 1344), the Corps proposes to re-issue RGP SAJ-46 for the construction and maintenance of bulkheads and seawalls with backfill in waters of the United States, within the State of Florida, in accordance with the following Special Conditions:
WORK AUTHORIZED: The work herein authorized includes new work and maintenance associated with shoreline stabilization activities including bulkheads and seawalls with backfill, seawall footers, and shoreline stabilization materials, as described below, throughout the State of Florida.
Bulkheads and Seawalls: The installation of new bulkheads, seawalls, and seawall footers shall not exceed 500 feet in length, and shall not extend any further waterward than 1.5 feet (18 inches) as measured from the wet face of the existing seawall, Mean High Water Line (MHWL) or Ordinary High Water Line (OHWL) to wet face of the proposed bulkhead or seawall, unless necessary to align a new seawall with one or more adjacent seawalls. Vertical seawall repairs and replacements, which are limited to no further waterward than 1.5 feet, do not have a length restriction.
Shoreline stabilization materials:
a. Shoreline stabilization materials may consist of riprap, articulating blocks or mats, and sand cement, geotextile/filter fabric and mattresses. Installation of new shoreline stabilization materials where none previously existed may not extend more than 10 feet waterward of MHWL (including the toe of the riprap). Riprap repair, and replacement may occur at its previous location, upland of, or within 1.5 feet (18 inches) waterward of its previous location.
b. Shoreline stabilization materials must be placed by hand around red mangrove prop roots.
c. Shoreline stabilization structures, other than vertical seawalls, shall be no steeper than a 2:1 Horizontal:Vertical slope for riprap, or the appropriate slope necessary to ensure shoreline stability while minimizing the total footprint when using materials other than riprap.
SPECIAL CONDITIONS:
1. Written Authorization Required: No work shall be performed until the applicant submits satisfactory plans for the proposed work and receives written authorization from the District Engineer.
2. Exclusion Areas: The following areas are specifically excluded from authorization under SAJ-46:
a. Motorboat prohibited zones, no entry zones, and Federal Manatee Sanctuaries.
b. Those areas subject to Shoreline Management Plans (i.e., Lake Seminole and Lake Okeechobee and the Okeechobee Waterway).
c. Biscayne Bay National Park Protection Zone (Dade County), St. Lucie Impoundment (Martin County), and areas identified in the Wild and Scenic Rivers Act (16 U.S.C. 1317, et seq.): the St. Mary’s River, from its headwaters to its confluence with the Bells River, the entire Wekiva River, including Wekiwa Springs Run, Rock Springs Run, the entire Seminole Creek, and Black Water Creek from its outfall at Lake Norris to its confluence with the Wekiva River, the Loxahatchee River from Riverbend Park downstream to Jonathan Dickinson State Park.
d. The following state parks: John Pennekamp Coral Reef State Park, Lignum Vitae Key State Botanical Site and Aquatic Preserve, Long Key State Park, Curry Hammock State Park, and Bahia Honda State Park.
e. Canals in the Kings Bay/Crystal River/Homosassa/Salt River system (Citrus County).
f. Lake Miccosukee (Leon and Jefferson Counties).
g. National Marine Fisheries Service designated smalltooth sawfish limited exclusion zones, and designated Critical Habitat for the Gulf sturgeon and North Atlantic right whale.
3. Timucuan Ecological and Historical Preserve: No structures shall be authorized by this RGP within the boundaries of the Timucuan Ecological and Historical Preserve (Duval County) until the National Park Service has been contacted and offered the opportunity to submit comments to the Corps on the effects of the proposed project on the preserve.
4. Florida Keys National Marine Sanctuary (FKNMS): No placement of riprap below MHWL is authorized within the boundary of the FKNMS unless the FKNMS issues a National Oceanic and Atmospheric Administration (NOAA) permit or authorization that signifies the proposed activity is consistent with Title III of the Marine Protection, Research and Sanctuaries Act of 1972, as amended.
5. Smalltooth sawfish critical habitat: Installation of new shoreline stabilization materials in smalltooth sawfish critical habitat is limited to:
a. Placement of new shoreline stabilization materials (i.e. riprap, articulated concrete mats) in water depths deeper than -3 feet Mean Lower Low Water (MLLW). No stabilization materials can be placed in waters between the MHWL and -3 feet MLLW.
b. Installation of new or repair/replacement seawalls within 1.5 feet waterward of the existing seawall or MHW.
c. Repair and replacement of shoreline stabilization materials (i.e., riprap, articulated concrete mats) within the same footprint of existing materials in depths between the MHWL and -3 feet MLLW. This means that these materials cannot result in the waterward extension or lateral expansion of materials beyond the previous footprint. Shoreline stabilization materials can be expanded in water depths deeper than -3 feet MLLW.
6. Acropora critical habitat: New or repair/replacement of shoreline protection cannot occur in Acropora critical habitat if the essential feature is present. Repair and replacement of shoreline protection within Acropora critical habitat is covered if it is within the existing footprint.
7. Johnson’s seagrass critical habitat: Installation of shoreline stabilization material (e.g., riprap and scour control materials, not vertical seawalls and footers) cannot occur if essential features are present. Repair and replacement of these materials (riprap and scour) is covered within the existing footprint.
8. Manatee Key: Prior to verification of authorization, the dichotomous key titled “The Corps of Engineers, Jacksonville District, and the State of Florida Effect Determination Key for the Manatee in Florida, March 2013” (see http://www.saj.usace.army.mil/Portals/44/docs/regulatory/sourcebook/endangered_species/Manatee/2013_FINAL_ManateeKey.pdf) will be used to determine potential manatee impacts. Those determined to be a “may affect” to the manatee will not be authorized until consultation on the project has been concluded with the U.S. Fish and Wildlife Service in accordance with the Endangered Species Act. Additionally, depending on the location of the project, some projects determined to be “may affect, not likely to adversely affect” will not be authorized until consultation on the project has been concluded. Note: The manatee key may be subject to revision at any time. It is our intention that the most recent version of this technical tool will be utilized during the evaluation of the permit application.
9. Manatee Construction Conditions: For projects in waters accessible to manatees, the permittee will utilize the “Standard Manatee Conditions for In-Water Work, 2011” (see http://www.saj.usace.army.mil/Portals/44/docs/regulatory/sourcebook/endangered_species/Manatee/2011_StandardConditionsForIn-waterWork.pdf) and/or requirements, as appropriate for the proposed activity. Note: The manatee conditions may be subject to revision at any time. It is our intention that the most recent version of these conditions will be utilized during the evaluation of the permit application.
10. Sea turtles, Sawfish, and Sturgeon Conditions: For projects in waters accessible to sea turtles, smalltooth sawfish, Gulf sturgeon, or shortnose sturgeon, the permittee shall comply with the Project Design Criteria (PDC) for In-Water Activities (Attachment A) and PDC for In-Water Noise from Pile and Sheet Pile Installation (Attachment B). Note: These conditions may be subject to revision at any time. It is our intention that the most recent version of these conditions will be utilized during the evaluation of the permit application.
11. U.S. Fish and Wildlife Service Critical Habitat: In accordance with Section 7 of the Endangered Species Act, projects proposed within the following areas cannot be authorized until consultation, either individually or programmatically, on the projects have been concluded with the U.S. Fish and Wildlife Service (USFWS): Within American crocodile designated critical habitat, Gulf sturgeon designated critical habitat under the jurisdictional responsibility of the USFWS; within the designated critical habitat for federally listed freshwater mussels, and freshwater mussels proposed for listing consisting of the following drainages: Within the main stem, creeks, and tributaries of the following rivers: Escambia (Escambia and Santa Rosa Counties), Yellow (Santa Rosa, Okaloosa, and Walton Counties), Choctawhatchee (Walton, Bay, Washington), Chipola (Jackson, Calhoun, and Gulf Counties), Apalachicola (Jackson, Calhoun, Gadsden, Liberty, Gulf, and Franklin Counties), Ochlockonee (Franklin, Wakulla, Liberty, Leon, and Gadsden Counties), Santa Fe and New (Columbia, Suwannee, Bradford, Baker, Union, Gilchrist, and Alachua Counties), and Econfina Creek and its tributaries (Bay and Washington Counties)..
12. Pile Restrictions: Projects proposing installation of any size of metal piling or metal sheet piling by impact hammer cannot be authorized under SAJ-46 until individual consultation has been initiated and concluded with the National Marine Fisheries Service (NMFS).
13. Diurnal: All in-water work must occur during daylight hours.
14. Endangered Species Consultation: This permit has undergone consultation with the USFWS and the NMFS, either individually or programmatically, on the listed species and any designated critical habitat noted on Table 1. If the proposed activity requires additional Section 7 consultation under the Endangered Species Act with the USFWS and/or NMFS on: 1) these or any other Federally listed threatened or endangered species or a species proposed for such designation; or 2) designated critical habitat for these or any other Federally listed threatened or endangered species or proposed critical habitat for any Federally listed threatened or endangered species, until consultation is concluded, the proposed activity cannot be authorized under SAJ-46.
15. Essential Fish Habitat and Endangered Species: Shoreline stabilization activities that require dredging of wetlands will not be authorized under this regional general permit. No work shall be authorized by SAJ-46 which may have direct or indirect adverse impacts to essential fish habitat such as but not limited to hard or soft corals, including listed corals, mangroves, estuarine emergent vegetation, marine emergent vegetation, and/or the following species of submerged aquatic vegetation: shoal grass (Halodule wrightii), paddle grass (Halophila decipiens), star grass (Halophila engelmanni), sago pondweed (Potamogeton pectinatus), clasping-leaved pondweed (Potamogeton perfoliatus), widgeon grass (Ruppia maritima), manatee grass (Syringodium filiforme), turtle grass (Thalassia testudinum), tapegrass (Vallisneria americana), horned pondweed (Zannichellia palustris), and eel grass (Zostera marina). Indirect effects include secondary and cumulative effects. In addition, the project cannot have adverse effects on any other essential fish habitat. The sole exception is that shoreline stabilization materials, as defined in Special Condition 3, may be hand-placed around mangroves.
16. Fill Material: The Permittee shall use only clean fill material for this project. The fill material shall be free from items such as trash, debris, automotive parts, asphalt, construction materials, concrete block with exposed reinforcement bars, and soils contaminated with any toxic substance, in toxic amounts in accordance with Section 307 of the Clean Water Act.
17. Fill Limitation: This permit does not authorize fill activities other than placement of: (1) shoreline stabilization materials as specified in Special Condition number 3 and (2) backfill behind the seawall or bulkhead. At no time should this permit be construed to allow filling of waters of the United States for additional development.
18. Federal Channel: No structures, including pilings shall be within the established setback, calculated from the near bottom edge of the channel, until coordination and concurrence with the Navigation business line is complete. The setback may vary between different Federal channels and between specific reaches of the same Federal channel. Exact locations of the proposed work may be verified by use of Florida State Plane Coordinate System (XY coordinates). Any activity within Federal project lands, including rights-of-way, may require the permittee to enter into a consent-to-easement or other real estate instrument with the Real Estate Division, U.S. Army Corps of Engineers, Jacksonville or Mobile District, as appropriate, prior to the commencement of any construction activity. (COE)
19. Federal Channel: For projects adjacent to a federal navigation channel, if the previously authorized, serviceable, structure was destroyed by an act of nature or other event, the project will be reviewed pursuant to the District’s Setback Guidance in effect at the time of the request. It is possible that any authorized reconstruction will not be authorized or rebuilt in the same dimensions or design as the original structure.
20. Assurance of Navigation and Maintenance: For projects authorized under the SAJ-46 in navigable waters of the United States, the Permittee understands and agrees that, if future operations by the United States require the removal, relocation, or other alteration, of the structures or work herein authorized, or if in the opinion of the Secretary of the Army or his authorized representative, said structure or work shall cause unreasonable obstruction to the free navigation of the navigable waters, the Permittee will be required, upon due notice from the Corps of Engineers, to remove, relocate, or alter the structural work or obstructions caused thereby, without expense to the United States. No claim shall be made against the United States on account of any such removal or alteration. A structure authorized under this regional general permit must not interfere with general navigation.
21. Cultural Resources/Historic Properties:
a. No structure or work shall adversely affect impact or disturb properties listed in the National Register of Historic Places (NRHP) or those eligible for inclusion in the NRHP.
b. If during the ground disturbing activities and construction work within the permit area, there are archaeological/cultural materials encountered which were not the subject of a previous cultural resources assessment survey (and which shall include, but not be limited to: pottery, modified shell, flora, fauna, human remains, ceramics, stone tools or metal implements, dugout canoes, evidence of structures or any other physical remains that could be associated with Native American cultures or early colonial or American settlement), the Permittee shall immediately stop all work and ground-disturbing activities within a 100-meter diameter of the discovery and notify the Corps within the same business day (8 hours). The Corps shall then notify the Florida State Historic Preservation Officer (SHPO) and the appropriate Tribal Historic Preservation Officer(s) (THPO(s)) to assess the significance of the discovery and devise appropriate actions.
c. Additional cultural resources assessments may be required of the permit area in the case of unanticipated discoveries as referenced in accordance with the above Special Condition ; and if deemed necessary by the SHPO, THPO(s), or Corps, in accordance with 36 CFR 800 or 33 CFR 325, Appendix C (5). Based, on the circumstances of the discovery, equity to all parties, and considerations of the public interest, the Corps may modify, suspend or revoke the permit in accordance with 33 CFR Part 325.7. Such activity shall not resume on non-federal lands without written authorization from the SHPO for finds under his or her jurisdiction, and from the Corps.
d. In the unlikely event that unmarked human remains are identified on non-federal lands, they will be treated in accordance with Section 872.05 Florida Statutes. All work and ground disturbing activities within a 100-meter diameter of the unmarked human remains shall immediately cease and the Permittee shall immediately notify the medical examiner, Corps, and State Archeologist within the same business day (8-hours). The Corps shall then notify the appropriate SHPO and THPO(s). Based, on the circumstances of the discovery, equity to all parties, and considerations of the public interest, the Corps may modify, suspend or revoke the permit in accordance with 33 CFR Part 325.7. Such activity shall not resume without written authorization from the State Archeologist and from the Corps.
22. Marked Utilities: No work shall be performed until after the permittee provides notification to the owner(s) or operator(s) of any marked utilities in the area of work.
23. Navigation and Flood Control: Activities authorized under this general permit shall not impede navigation or affect flood control.
24. Activities Affecting Structures or Works Built by the United States: If an activity also requires permission from the Corps pursuant to 33 U.S.C. 408 because it will alter or temporarily or permanently occupy or use a Corps federally authorized Civil Works project (a “Corps project”), the activity is not authorized until the appropriate Corps office issues the section 408 permission to alter, occupy, or use the Corps project, and the district engineer issues a written verification.
25. Turbidity Control: Turbidity controls measures may be required, and the work must be conducted so as to prevent violations of State Water Quality Standards as established in sections 62-4.242 and 62-4.244 of the Florida Administrative Code and Chapters 62-302, 62-520, 62-522, and 62-550 of the Florida Administrative Code.
26. Water Quality Certification (WQC) and Coastal Zone Consistency Concurrence (CZCC): Activities qualifying for this RGP must be authorized by the applicable permit or exemption under Part IV of Chapter 373, F.S., and by any authorization required to use or occupy state-owned submerged lands (SSL) under Chapter 253, F.S., and, as applicable Chapter 258 F.S. Such permit, issued by the Department of Environmental Protection, a water management district under s. 373.069, F.S., or a local government with delegated authority under s. 373.441, F.S., will provide the applicable WQC or waiver thereto, and CZCC. WQC is waived for activities authorized under this RGP that qualify for an exemption under s. 403.813(1)(i) or 373.406, F.S., or the rules of Florida Administrative Code (F.A.C.) adopted under Part IV of Chapter 373, F.S. The Corps under C.F.R. § 325.2(b)(2) may presume CZCC for the above exempt activities by operation of s. 380.23(7), F.S., provided the activity receives the applicable authorization to use and occupy SSL under Chapter 253, F.S., and, as applicable, Chapter 258, F.S., and the rules F.A.C. adopted thereunder. The Corps shall not be precluded from acting on a request to use this RGP before the applicable Sovereign Submerged Lands (SSL) authorization is granted.
27. State-listed fish and wildlife species: This RGP does not include conditions that would prevent the ‘take’ of a state-listed fish or wildlife species. These species are protected under sec. 379.411, Florida Statutes, and listed under Rule 68A-27, Florida Administrative Code. With regard to fish and wildlife species designated as species of special concern or threatened by the State of Florida, you are responsible for coordinating directly with the Florida Fish and Wildlife Conservation Commission (FWC). You can visit the FWC license and permitting webpage (http://www.myfwc.com/license/wildlife/) for more information, including a list of those fish and wildlife species designated as species of special concern or threatened. The Florida Natural Areas Inventory (http://www.fnai.org/ ) also maintains updated lists, by county, of documented occurrences of those species.
28. Activities authorized under this general permit are not ancillary to, adjunct to, or necessary for providing access to the water for upland dry boat storage, upland dry dock, or upland commercial boat repair or maintenance facilities.
29. Conformance with the descriptions and criteria contained herein does not necessarily guarantee authorization under this regional general permit. The District Engineer reserves the right to require that any request for authorization under this regional general permit be processed as a standard permit.
30. Expiration Date: This regional general permit will be valid for a period of five years from the date authorized unless suspended or revoked by the District Engineer prior to that date. If SAJ-46 expires or is revoked prior to completion of the authorized work, authorization of activities that have commenced or are under contract to commence in reliance on SAJ-46 will remain in effect provided the activity is completed within 12 months of the date SAJ-46 expired or was revoked.
31. The permittee shall perform all work in accordance with the general conditions for permits. The general conditions attached hereto are made a part of this permit.
Agency Coordination: This proposed RGP is being coordinated via separate letter with the U.S. Fish and Wildlife Service as required under Section 7 of the Endangered Species Act, and with the National Marine Fisheries Service – Habitat Conservation Division for Essential Fish Habitat as required under the Magnuson-Stevens Fishery Conservation and Management Act.
RESPONSE: Comments regarding this proposed reissuance of Regional General Permit SAJ-46 should be submitted in writing to Ms. Krista Sabin at the letterhead address or electronic mail at Krista.D.Sabin@usace.army.mil within 30 days from the date of this notice. If no adverse comments are received, evaluation may continue without further notice.