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SAJ-2019-02433 (SP-BJC)

Published Dec. 18, 2019
Expiration date: 1/7/2020

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:  Richard Wohlfarth
                       Wohlfarth Consulting Group, LLC
                       246 North Westmonte Drive
                       Altamonte, Florida 32714

WATERWAY AND LOCATION: The ±165-acre Osceola Village project would affect waters of the United States associated with the Lake Toho hydrologic basin. This site is located on the east side of John Young Parkway and US-17, approximately 2.0 miles south of the East Vine Street and US-192; within Sections 28, 32, and 33; Township 25 South; Range 29 East; in Osceola County, Florida.

Directions to the site are as follows: From the Cocoa Permits Section, proceed west on FL-528 for approximately 30 miles to FL-417 S. Take FL 417 S to John Young Parkway S for approximately 13 miles. Continue on US-17S for 1.5 miles and turn left at John Henry Jones Boulevard.

APPROXIMATE CENTRAL COORDINATES:  Latitude: 28.271868°
                                                                          Longitude: -81.418414°

PROJECT PURPOSE:

Basic: Residential/retail.

Overall: Development of a mixed-use community, including commercial and residential, within close proximity to Kissimmee.

EXISTING CONDITIONS: On-site land use types/vegetative communities were identified utilizing the Florida Land Use, Cover and Forms Classification System, Level III (FLUCCS, FDOT, 1999). The on-site upland land use types/vegetative communities include:

211 – Improved Pastures
The majority of the property’s upland component is located within the western portion of the property and is currently utilized for agricultural purposes associated with current cattle grazing over these lands. This land use/vegetative community is most consistent with the Improved Pastures (211) FLUCFCS classification. Fencing, gates, corrals, feeders, and agricultural equipment exist across the property. Vegetation observed within the community type includes a widely scattered canopy of live oak (Quercus virginiana); a sub-canopy of Brazilian pepper (Schinus terebinthifolius), wax myrtle (Myrica cerifera), Chinese tallow (Sapium sebiferum) and American beautyberry (Callicarpa americana) (chiefly in association with fencelines); and, an understory consisting predominantly of foraging grasses such as bahiagrass (Paspalum notatum) and Bermudagrass (Cynodon dactylon), with chalky blue-stem (Andropogon glaucus), tropical soda-apple (Solanum viarum), purple thistle (Crisium horridulum) and assorted weedy species.

411 – Pine Flatwoods
Within the southwest corner of the overall property exists a small forested stand most consistent with the Pine Flatwoods (411) FLUCFCS classification. Vegetation throughout this community consists of a canopy and sub-canopy of slash pine (Pinus elliottii), with scattered Chinese tallow (Sapium sebiferum), and Brazilian pepper (Schinus terebinthifolius). Understory species consist of caesarweed (Urena lobata), tropical soda-apple (Solanum viarum), lantana (Lantana camara) and blackberry (Rhubus spp).

422 – Brazilian Pepper
Within the northern corner of the property exists a small area most consistent with the Brazilian Pepper (422) FLUCFCS classification. This system is functionally isolated from the overall property as a result of the large ditch system that bisects the property’s northwest corner. Vegetation throughout this community consists of a canopy and sub-canopy dominated by Brazilian pepper (Schinus terebinthifolius), with a few scattered Chinese tallow (Sapium sebiferum) and cabbage palm (Sabal palmetto). The understory was observed to be very sparse, with only widely scattered tropical soda-apple (Solanum viarum) existing.

743 – Spoil Piles
A few areas exist across the subject property in which numerous loads of spoil have been deposited. These areas are most consistent with the Spoils Piles (743) FLUCFCS classification. The largest of these is centrally located, just north of the project’s southern boundary, and contains dozens of historically placed truckloads of spoil. A second and much smaller spoil area is located just north of the southern fill road’s eastern terminus. Vegetation associated with this community consists primarily of overgrowth species such as dogfennel (Eupatorium capillifolium), caesarweed (Urena lobata) and ragweed (Ambrosia artemisiifolia) along with assorted weedy species.

510 – Streams and Waterways (Ditches)
Several east-west ditches exist throughout the project site which are most consistent with the Streams and Waterways (Ditches) (510) FLUCFCS classification. The largest of these is located within the northwestern corner of the property and is a continuation of an extensive drainage ditch system located west of John Young Parkway that flows under the road through a number of large culverts, cuts across the property and then continues east – running north of the subject property – eventually out falling into Lake Tohopekaliga. Species observed consist primarily of water hyacinth (Eichhornia crassipes). A second ditch system connects the central freshwater marsh to the large freshwater marsh system within the eastern portion of the property. This ditch, as with the above described, is an upland cut ditch excavated for drainage purposes. No surface water was observed within this ditch system at the time of inspection and it was vegetated with bahiagrass (Paspalum notatum). A number of other, large ditch systems appear as being historically excavated through the eastern wetland system in association with agricultural practices in an effort to drain the system
and allow for improved grazing utilization.

534 – Reservoirs, less than 10 acres
A number of small, excavated cattle ponds exist throughout the overall property area which are most consistent with the Reservoirs, less than 10 acres (534) FLUCFCS classification. These systems appear to have been excavated for the sole purpose of providing accessible drinking water for the cattle. The spoil materials were, in most cases, simply placed adjacent to the ponds.

621 – Cypress
A number of forested wetland communities are scattered across the property, with the majority existing within the property’s larger freshwater marsh system. These systems are most consistent with the Cypress (621) FLUCFCS classification. Dominant vegetation through these systems consist of a canopy and sub-canopy of cypress (Taxodium distichum), Chinese tallow (Sapium sebiferum), Brazilian pepper (Schinus terebinthifolius) and scattered blackgum (Nyssa sylvatica); with an understory of tropical soda-apple (Solanum viarum), purple thistle (Crisium horridulum), and smartweed (Polygonum punctatum). It appears that these systems are heavily disturbed via cattle utilization.

640 – Vegetated Non-Forested Wetlands
The majority of the subject property’s wetlands consist of herbaceous systems most consistent with the Vegetated Non-Forested Wetlands (640) FLUCFCS classifications. These systems are considered low-quality pasture wetlands due to their poor water quality from historic agricultural and cattle disturbances. Vegetation observed within these systems consist of soft rush (Juncus effusus), dotted smartweed (Polygonum punctatum), purple thistle (Crisium horridulum), spikerush (Eleocharis baldwinii), pickerelweed (Pontedaria cordata), water hyacinth (Eichhornia crassipes), southern watergerass (Luziola fluitans), and scattered primrose willow (Ludwigia peruviana). Currently, these systems are being utilized by cattle for grazing and appear to be routinely maintained via agricultural practices. As stated previously, numerous drainage ditches extend throughout these systems and have, over time, adversely affected the hydrologic regime of these wetlands.

PROPOSED WORK: The applicant seeks the authorization of fill in 26.67 acres of waters of the United States for residential and commercial development on the 165± acre Osceola Village 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:

“The applicant has explored alternative site plans and re-configurations to minimize impacts to wetlands. However, to achieve the desired project, the final design will incur 26.67 acres of unavoidable impacts. The wetland impacts cannot be reduced any further due to the required stormwater pond and the locations of the herbaceous wetlands within the improved pasture. The site plan could not be configured to avoid any of these isolated systems while still meeting the minimum criteria dimensions necessary for parking and roadway alignments. The low-quality systems provide little functional value to the surrounding uplands, and will eventually suffer a complete loss of function due to their isolation from hydrologic inputs, wildlife corridors, and viable seed sources. As such these systems can be eliminated and replaced off-site with higher quality herbaceous systems and the perpetual preservation of beneficial wetlands within the locality of the project. The impacts to W1 have been minimized wherever possible. The pond’s design was curved in order to focus more impact to areas of lower-quality towards the north and south edges of the marsh, while minimizing impacts to the central higher-quality area of the W1. This central area exhibits consistent hydrology and the vegetative composition is composed of higher-quality wetland species like pickerelweed (Pontederia cordata), fireflag (Thalia geniculata), duck potato (Sagittaria latifolia), and edge of sand cordgrass (Spartina bakeri). As such, the project cannot feasibly be constructed without adversely affecting a portion of this system. The unavoidable impacts have been assessed with WRAP methodology and will be offset with the purchase of Federal mitigation credits.”


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


“The compensatory mitigation for the proposed wetland impacts will be provided through the purchase of federal mitigation bank credits. The proposed wetland impacts were evaluated using WRAP, which is consistent with the wetland functional assessment method used by federal mitigation banks in this watershed. The project proposes direct wetland impacts to USACE jurisdictional Wetlands totaling 26.67 acres. The proposed direct wetland impacts will result in the loss of 8.58 units of mitigation. The functional loss of the wetlands and associated wildlife habitat will be mitigated by purchasing 8.58 units from a federally approved Mitigation Bank, which service area includes the Osceola Village project area.”

CULTURAL RESOURCES:
The Corps has not made an effect determination but has requested a cultural resources assessment survey (CRAS) provided by the applicant to identify and evaluate cultural resources within the proposed permit area. After review, the Corps will make an effect determination and initiate consultation with the State Historic Preservation Office and those federally recognized tribes with concerns in Florida and the Permit Area, and the Advisory Council on Historic Preservation as applicable pursuant to 33 CFR 325, Appendix C and Section 106 of the National Historic Preservation Act, by separate letter.

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” the Eastern Indigo Snake. Based on the South Florida Ecological Services Eastern Indigo Snake Effect Determination Key (dated August 1, 2017, revise July 2017), 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 (The project will impact 25 acres or more of eastern indigo snake habitat) = May Affect. The Corps will initiate formal consultation with FWS.

The Corps has determined the proposed project “may affect” the Everglades Snail Kite. The proposed project is within the Snail Kite Consultation Area as well the Lake Tohopekaliga Priority Management Zone. The Corps will initiate formal consultation with FWS.

The Corps has determined the proposed project “may affect” Audobon’s Crested Caracara. The proposed project is within the consultation area for Caracara. The Corps will initiate formal consultation with FWS.

The Corps has determined the proposed project may affect, but is not likely to adversely affect the Wood Stork and its designated critical habitat. The Corps completed an evaluation of the project based upon the US Fish and Wildlife Service (FWS) South Florida Ecological Services Field Offices Programmatic Concurrence for use with the Wood Stork (January 2010). Use of the Key for Wood Stork resulted in the following sequential determination: A (The project is more than 0.47 miles from a colony site.) > B (Project impacts SFH > 0.5 acres) >C (Project impacts to SFH within a Core Foraging Area of a colony site) >d (Project impacts to SFH have been avoided and minimized to the extent practicable, and compensation (Service approved mitigation bank or as provided in accordance with Mitigation Rule 33 CFR Part 332) for unavoidable impacts is proposed in accordance with the CWA section 404 (b)(I) guidelines and habitat compensation replaces the foraging value matching the hydroperiod of the wetlands affected and provides foraging value similar to, or higher than, that of impacted wetlands) = “not likely to adversely affect” for wood storks. The Corps has FWS concurrence for the proposed activities through the use of the aforementioned determination key.

The Corps has requested the applicant conduct a full acoustic survey for Florida Bonneted Bat before a determination is finalized. The Corps began an evaluation based upon the US Fish and Wildlife Florida Bonneted Bat Consultation Guidelines (October 2019). Use of the key for Bonneted Bad resulted in the following sequential determination: 1a (Proposed project or land use change is partially or wholly within the Consultation Area) >2b (No potential FBB roosting habitat exists with the project area) >13a (FBB foraging habitat exists within the project area and foraging habitat will be affected) >14a (Project size > 50 acres) >15 (Project is within 8 miles of high quality potential roosting areas) = Conduct Full Acoustic Survey then proceed to 16.

Based on existing habitat types, the Corps preliminarily determined the project will have no effect red-cockaded woodpecker (Leuconotopicus borealis), Florida grasshopper sparrow (Ammodramus savannarum floridanus), 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 26.67 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, Brandon J. Conroy, in writing at the Cocoa Permits Section (address above), by electronic mail at brandon.j.conroy@usace.army.mil or by telephone at (321) 504-3771 x11.

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.