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:
APPLICANT: Charles and Virginia Heuther
Mood Development Corporation
10130 Bertram Lane
Fort Myers, FL 33919
WATERWAY AND LOCATION: The project is located adjacent to Hancock Creek at 884-940 Moody Road, Section 10, Township 44 South, Range 24 East, Lee County, Florida.
Directions to the site are as follows: Take I-75 North to exit 138 Turn left on FL-82. Turn right on to Evans Avenue heading north and continue onto Park Avenue. Continue onto Tamiami Trail. Turn left onto Pondella Road. Turn left onto Moody Road and the subject parcel is on the left.
APPROXIMATE CENTRAL COORDINATES: Latitude 26.6571°
Longitude -81.8981°
PROJECT PURPOSE:
Basic: Extend permit and modify permitted area.
Overall: The permittee is requesting to extend the permit expiration date by 5 years and remove a portion of land within the permit that is no longer owned by the perrmitee (Phase II in Attachment B).
a. PROJECT HISTORY: A Department of the Army permit was issued on October 1, 2008 and authorized the discharge of fill into 0.30 acres of mangrove wetlands, filling of 0.70 acres of freshwater forested wetlands, filling of 1.10 acres of the existing marina basin, excavation of 0.20 acres within the existing marina basin, and excavation of 0.1 acre within Hancock Creek. The project included the construction of 53 in water slips, a fishing/observation deck and walkway in Hancock Creek, 10 trailer parking spaces and a boat ramp connecting to Hancock Creek and a temporary mooring dock parallel to the shoreline. The work also included the in-water construction of 2,050 square feet of riprap and 0.20 acres of mangrove plantings as mitigation for impacts to EFH and listed species habitat.
A subsequent modification was issued on June 9, 2008 adding Meritage Home as a co-permittee, updating several special conditions, and extending the permit for 2 years, making the new expiration date June 9, 2016.
A permit transfer form was submitted on January 26, 2018, transferring the permit to Mood Development Corporation.
EXISTING CONDITIONS: Please reference Attachment B for Phase references.
• Meritage Phase work was completed and included a boat ramp, dock and trailer spaces.
• Mood Development Phase I was completed and included clearing and filling. The proposed wetland impacts in this phase included the removal of mangroves in the pilot canal that was subsequently filled. Required mitigation for this phase was fulfilled with the purchase of 0.2 credits from Little Pine Island Mitigation Bank (LPIMB).
• Mood Development Phase II: This area is no longer owned by the applicant (Mood Development Corporation) and is therefore being requested for removal from the authorized work as part of this modification. Wetland impacts have not occurred in this area and associated on-site mitigation has not been conducted. Since this Phase is not part of the modification, a new application would need to be submitted for this work.
• Mood Development Phase III: This area of the project included filling and excavating portions of the existing basin to form a new oxbow docking facility. The proposed wetland impacts were to the narrow mangrove fringe along the basin. The mangrove impacts in this area have not occurred and associated on-site-mitigation has therefore not occurred.
PROPOSED WORK: This permit modification is to extend the permit expiration date by 5 years and to remove a portion of the original project footprint that is no longer owned by the permittee, referred to as Mood Development Phase II (Attachment B). The current modification request date was received prior to the expiration date of June 9, 2016.
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:
The original authorized project was already determined to have met avoidance and minimization criteria. No new work is proposed.
COMPENSATORY MITIGATION –The applicant has provided the following explanation why compensatory mitigation should not be required: Mitigation in the form of LPIMB bank credits has been completed for authorized impacts from Mood Development Phase I and part of Phase III (pilot canal mangrove impacts). Remaining on-site mitigation requirements associated with Phase III (mangrove basin impacts) would still be in place should those impacts occur. No new wetland impacts are authorized per the initial permit and therefore no additional mitigation is required.
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: All permitted wetland impacts remaining in the applicant’s ownership have been previously consulted on with the U.S. Fish and Wildlife Service. Mitigation, via the purchase of LPIMB credits, has been purchased for mangrove impacts resulting from Mood Development Phase I and a portion of Phase III. Remaining on-site mitigation requirements associated with Phase III (mangrove basin impacts) would still be in place should those impacts occur. Mood Development Phase II, part of the initial permit, has not commenced and is being removed from the permit as part of the current modification request. Since this Phase is not part of the modification, a new application would need to be submitted for this work. Therefore, the Corps has determined the proposed modification would have no effect on any listed threatened or endangered species or designated critical habitat.
ESSENTIAL FISH HABITAT (EFH): All permitted wetland impacts remaining in the applicant’s ownership have been previously consulted on with the National Marine Fisheries Service Habitat Conservation Division (NMFS HCD). Mitigation, via the purchase of LPIMB credits, has been purchased for mangrove impacts resulting from Mood Development Phase I and a portion of Phase III. Remaining on-site mitigation requirements associated with Phase III (mangrove basin impacts) would still be in place should those impacts occur. Mood Development Phase II, part of the initial permit, has not commenced and is being removed from the permit as part of the current modification request. Since this Phase is not part of the modification, a new application would need to be submitted for this work. Therefore, the Corps has determined the proposed modification would have no effect on EFH.
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 1520 Royal Palm Square Boulevard Suite 310, Fort Myers, FL 33919 within 15 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, Russell Rouan, in writing at the Fort Myers Permits Section, 1520 Royal Palm Square Boulevard, Suite 310, Fort Myers, FL 33919; by electronic mail at Russell.W.Rouan@usace.army.mil; by facsimile transmission at (239) 334-0797; or, by telephone at (239) 334-1975.
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.