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 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. §403) as described below:
APPLICANT: Moss Marine
C/o George Freeland
450 Harbor Court
Fort Myers Beach, FL 33931
WATERWAY AND LOCATION: The project would affect waters of the United States associated with Matanzas Pass. The project site is located in Section 24, Township 46 South, Range 23 East, at 450 Harbor Court, Fort Myers Beach, Lee County, Florida.
Directions to the site are as follows: From Summerlin Road take San Carlos Boulevard south over the Matanzas Pass Bridge to Fort Myers Beach; turn right on Estero Boulevard then first right on Old San Carlos Boulevard north to Third Street; turn left on Third Street and head west to Harbor Court; turn right on Harbor Court and head north to the project site (Moss Marine).
APPROXIMATE CENTRAL COORDINATES: Latitude 26.45651°
Longitude -81.95561°
PROJECT PURPOSE:
Basic: Reconfiguration of existing marina
Overall: To reconfigure an existing marina to provide boat access to Gulf of Mexico and surrounding waters for a commercial marina.
EXISTING CONDITIONS: The existing marina has 210 dry slips and three docks with a total of 39 wet slips which received some damage due to Hurricane Irma and have deteriorated over time.
PROPOSED WORK: The applicant seeks authorization to install 45 steel pipe piles for 9,681 square feet of floating concrete docks, with an additional 1,915 square feet of marginal dock to remain, for a total over water structure of 11,596 square feet. In addition, 59 wood pilings will be installed for fender pilings. Dock A has 17 existing slips and will be modified for 16 total slips. Dock B has 11 slips and will be reconfigured for 15 slips as well as extending the main pier 47 feet so the fuel dock can accommodate larger vessels. Dock C has 11 slips and will keep the same amount of slips. Dock D is new and would accommodate 13 new slips. The facility also has a total of 210 existing dry slips associated with an upland storage building that will remain.
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 will utilize turbidity curtains during in-water activities and follow manatee, sea turtle, and smalltooth sawfish construction conditions.
COMPENSATORY MITIGATION – The applicant has provided the following explanation why compensatory mitigation should not be required:
There are no special aquatic sites proposed to be impacted by this activity.
CULTURAL RESOURCES: The Corps has determined the activity is of such limited scope (installing pilings) there is little likelihood of impact upon an historic property; therefore, the proposed project would have “No Potential to Cause Effect”.
ENDANGERED SPECIES: The Corps has determined the proposed project may affect, but is not likely to adversely affect, the following species.
May affect, not likely to adversely affect; programmatic consultation required:
For these species: West Indian manatee (Trichechus manatus), smalltooth sawfish (Pristis pectinata), green sea turtle (Chelonia mydas), loggerhead sea turtle (Caretta caretta), Kemp’s ridley sea turtle (Lepidochelys kempii)
Basis for determination(s): The Corps has made the determination of “may affect, not likely to adversely affect” (MANLAA), for the West Indian manatee and its designated critical habitat. The Corps has concurrence with this determination pursuant to The Corps of Engineers, Jacksonville District, and the State of Florida Effect Determination Key for the Manatee in Florida, April 2013 (Manatee Key). Use of the Manatee Key resulted in the following sequential determination: A>B>C>D>G>H>I>J>K>N>O>P>1 MANLAA, with no further consultation necessary. This determination is based on the applicant following the Standard Manatee Conditions for In-Water Work, 2011 for the proposed activity and providing a dedicated manatee observer during any in-water activities.
The Corps evaluated the proposed work utilizing NMFS’s Jacksonville District’s Programmatic Biological Opinion (JAXBO) dated 20 November 2017. The JAXBO analyzes the effects from 10 categories of minor in-water activities occurring in Florida and the U.S. Caribbean on sea turtles (loggerhead, leatherback, Kemp's ridley, hawksbill, and green); smalltooth sawfish; Nassau grouper; scalloped hammerhead shark, Johnson's seagrass; sturgeon (Gulf, shortnose, and Atlantic); corals (elkhorn, staghorn, boulder star, mountainous star, lobed star, rough cactus, and pillar); whales (North Atlantic right whale, sei, blue, fin, and sperm); and designated critical habitat for Johnson's seagrass; smalltooth sawfish; sturgeon (Gulf and Atlantic); sea turtles (green, hawksbill, leatherback, loggerhead); North Atlantic right whale; and elkhorn and staghorn corals in accordance with Section 7 of the Endangered Species Act. Based on past permitting practices of the Corps and review of consultations with similar in-water construction activities, Project Design Criteria (PDCs) were identified in the JAXBO that typically have been applied to permitted in-water construction activities. These PDCs ensure effects of in-water construction activities are minimal in nature and do not result in adverse effects to listed species or to essential features of designated CH. For this verification, the Corps conducted a project specific review to ensure that all of the PDCs were met. In accordance with the project-specific review process established in the JAXBO, a PDC summary checklist, activity checklist, supporting documentation for the proposed activity, and a supersede checklist were emailed to: nmfs.ser.statewideprogrammatic@noaa.gov, nmfs.ser.esa.consultations@noaa.gov, and jaxbo@usace.army.mil. The Corps will await concurrence from NMFS that the supersede request has been approved; should the supersede request not be approved, additional coordination with NMFS may be required.
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 104 square feet (pilings) of unconsolidated bottom utilized by various life stages of Marine organisms. Our initial determination is that the proposed action would not have a substantial adverse impact on EFH or Federally managed fisheries in the Gulf of Mexico. 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.
NAVIGATION: Based on the Florida State Plane coordinates provided by the applicant, the waterward edge of the proposed structure is 146 feet away from the near bottom edge of Matanzas Pass.
SECTION 408: The applicant will not require permission under Section 14 of the Rivers and Harbors Act (33 USC 408) because the activity, in whole or in part, would not alter, occupy, or use a Corps Civil Works project.
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.
AUTHORIZATION FROM OTHER AGENCIES: Submerged land lease may be required from the 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 Fort Myers Permits Section, 1520 Royal Palm Square Blvd, Suite 310, Fort Myers, FL 33919 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, Steven Rabney, in writing at the Fort Myers Permits Section, 1520 Royal Palm Square Blvd, Suite 310, Fort Myers, FL 33919; by electronic mail at Steven.J.Rabney@usace.army.mil; or, by telephone at (239) 334-1975 x0009.
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.