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 1,092 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.
APPROXIMATE CENTRAL COORDINATES:
Overall: Development of a mixed-use community, including commercial, residential, and institutional uses (including a public school), along with a regional collector road, within the Urban Growth Boundary of Osceola County.
HISTORY: The Corps previously issued a public notice on June 28, 2017. Revisions to the extent of waters of the U.S. (WoUS) have occurred which resulted in expanded federal wetland jurisdiction on the subject property. The increase in wetlands and proposed fill in WoUS require reissuance of a public notice.
Previous Public Comment
In response to the previous public notice, several commenters responded with issues regarding drainage between their homes and the Kindred (Cross Prairie Parkway) entrance road. Most notably, commenters indicated they experienced property flooding during storm events. Flooding on July 17, 2017 was noted to be worse than the 2004 hurricanes, and submitted pictures appear to indicate a stormwater pond overtopped its berm and drained into Wetland 9 (northeast side of Kindred).
The drainage pond that serves the Cane Brake Subdivision (includes Emperor Drive, Acree Lane, Sugar Cane Drive and Slim Court) outfalls to the existing Neptune Road Drainage Ditch, which then flows west from the pond outfall and drains directly into the existing Partin Canal. This subdivision does not drain into wetland W-9 or other portions of the Kindred property. The Partin Canal flows directly into Lake Toho and does not pass through any other applicant-owned land, including lands drained by pump.
The South Florida Water Management District evaluated stormwater pond design and water quality/quantity issues and have issued their permit. The Kindred road crossing of Wetland 9 was designed with 4- 48” RCP pipes which were determined using the 100-yr/72-hr storm event. This area was inspected and there do not appear to be any obstructions. Land management practices have changed (i.e., no cattle or vegetation maintenance) and, while shrubby vegetation has grown in the Wetland 9 area, it would not appear to preclude drainage. However, the Corps has suggested that the applicant maintain the W-9 ditch/swale more consistent with pre-development conditions.
The attached NOAA National Climatic Data Center maps show rainfall normality compared to the 30-year normal range. Rainfall received (30-day running total) during the 2004 hurricanes was substantially above average. Comparable rainfall periods (30-day running totals), subsequent to initiating site construction, include July 2005, October 2014, June/July and September 2017 and June-August 2018. Given the extreme rainfall during these periods, flooding cannot necessarily be attributed to drainage from Kindred.
Woods at Kings Crest Subdivision includes two ponds that outfall to the existing wetland systems on the applicant-owned property. The northern pond discharges into an existing ditch on the south side of Henry Partin Road. This ditch then flows west into Wetland W-10. From this point the existing drainage flows south into wetland W-14. The second, southern most pond draining this subdivision discharges to the west directly into wetland W-14. Wetland W-14 discharges through the S-4 ditch eventually draining into the large wetland at the south end of the applicant’s property. Both of the Kings’ Crest ponds and the Kings Crest subdivision were designed and constructed above the 100-year flood elevation of Lake Tohopekaliga and would not be expected to have flooding issues as a result of the currently proposed project.
EXISTING CONDITIONS: The Kindred project site supports 10 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 Residential (120), Improved Pasture (211), Shrub and Brushland (320), Upland Hardwood Forests (420), and Disturbed Lands (740). The wetlands and surface waters, totaling 352.7 acres, include Streams and Waterways (ditches-510), Ponds (534), Mixed Wetland Hardwoods (617), Freshwater Marshes (641), and Wet Prairies (643).
Most of the wetland systems throughout the site have been drained by 22.3 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 off-site and north of Henry Partin Road. This system drains the northern areas and directs the collected waters under Kings Highway 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 southward from an herbaceous marsh wetland that exists adjacent to the north side of Henry Partin Road in the eastern region of the project. This ditch originates in the pasture areas north of the wetland and drains into the freshwater marsh.
The applicant has submitted a mitigation bank application to the Corps, which includes off-site portions of wetlands W-1 and W-9, and adjacent uplands. These areas total 486.8 acres and are not included in the1,092 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 in a total of 7.78 acres of wetlands (2.4 acres of wetlands for construction of the Kindred entrance road and 5.38 acres of wetlands filled during other earth moving activities). Environmental Protection Agency (EPA) Region 4 and D.R. Horton have reached settlement agreements in these matters and the settlement agreements will resolve the unauthorized discharge of dredge and/or fill material into waters of the U.S. The total 7.78 acres of unauthorized fill are included in the current request to fill a total of 289.4 acres of waters of the U.S. (262.8 wetland acres, 21.2 ditch acres, and 5.4 pond acres) and will be permitted after-the-fact.
PROPOSED WORK: The applicant seeks authorization to fill 289.4 acres of waters of the United States for development of the 1,092 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:
To offset the proposed 289.4 acres of impacts to WoUS, credits will be purchased at an authorized 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 289.4 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 Jeffrey.firstname.lastname@example.org, 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.