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: City of Fort Myers
C/o Public Works Director
Attn: Richard Moulton
2200 Second Street
Fort Myers, Florida 33901
WATERWAY AND LOCATION: The project would affect waters of the United States, associated with Legacy Island, owned by the City of Fort Myers, with an existing Corps spoil easement. The project site is located just east of the Edison Bridge in the Caloosahatchee River, Fort Myers, Florida.
Directions to the site are as follows: From the downtown waterfront of the City of Fort Myers travel by boat following the right side of the Edison Bridge and the Island would be located just past the mid-point of the river in Section 12, Township 44 South, Range 24 East, Lee County, Florida.
APPROXIMATE CENTRAL COORDINATES:
PROJECT PURPOSE: To create a public park for boaters within the City of Fort Myers.
Overall: To create a public park within the City of Fort Myers and within the Caloosahatchee River that can be accessed by boaters.
EXISTING CONDITIONS: The project site is an island created from spoil material when the river was dredged by the Corps many years ago. The Corps continues to retain an easement on Legacy Island, although the City owns the property. The onsite vegetation consists predominantly of Australian pine (Casuarina equisetifolia) and other exotic vegetation, with some white mangrove (Laguncularia racemose) located along the shoreline. The existing area surrounding the project site consists of mostly shallow unconsolidated sand/silt bottom that is located within a Smalltooth Sawfish Limited Exclusion Zone.
PROPOSED WORK: The applicant seeks authorization to create a public park with walking trails, dock with 4 slips and emergency vessel slip, observation platform, paddle craft landing/launch beach, riprap, and living shoreline to include 109 cubic yards of sand, 757 cubic yards of riprap, 84 cubic yards of reinforced concrete planters (RCP) for red mangrove (Rhizophora mangle) plantings, reef balls, and 79 wood pilings.
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 agrees to comply with the following: “The November 2017 “National Marine Fisheries Service’s (NMFS) recently issued Final Programmatic Biological Opinion (referred to as JAXBO) for In-Water Work”; the 2011 “Standard Manatee and Marine Turtle Construction Conditions for In-Water Construction”; and the March 2006 “Sea Turtle and Smalltooth Sawfish Construction Conditions".” There are no impacts to special aquatic sites and no compensation is proposed.
COMPENSATORY MITIGATION – The applicant has provided the following explanation why compensatory mitigation should not be required: There are no proposed impacts to any special aquatic sites; therefore, no compensatory mitigation is proposed.
CULTURAL RESOURCES: The Corps is not aware of any known historic properties within the permit area and the permit area has been extensively modified by previous work; therefore, there is little likelihood a historic property may be affected. 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 Corps has determined the proposed project may affect, but is not likely to adversely affect, the Florida bonneted bat (Eumops floridanus), West Indian manatee (Trichechus manatus), wood stork (Mycteria americana), green sea turtle (Chelonia mydas), Kemp’s ridley sea turtle (Lepidochelys kempii), loggerhead sea turtle (Caretta caretta), and smalltooth sawfish (Pristis pectinata) (STSF). Additionally, the Corps has determined the proposal may affect smalltooth sawfish designated critical habitat (STSF DCH). The Corps has initiated formal consultation with the National Marine Fisheries Service-Protected Resources Division (NMFS-PRD) for the STSF and swimming sea turtles, pursuant to Section 7 of the Endangered Species Act by separate letter.
May affect, not likely to adversely affect; programmatic consultation required:
For these species: Florida bonneted bat (Eumops floridanus), West Indian manatee (Trichechus manatus), and Wood stork (Mycteria americana)
Basis for determination(s): The Corps has made the determination of “may affect, not likely to adversely affect” (MANLAA) for the Florida bonneted bat. The Corps has programmatic concurrence with the use of the Bat Key in the Florida Bonneted Bat Consultation Guidelines, dated October 2019. Use of the Bat Key resulted in the following determination: 1a>2a>3a>Limited Roost Survey Conducted>4b>MANLAA-P. No further consultation with the service is required. This determination is based on the applicant following Appendix D of the Bat Key: Best Management Practices (BMP’s) for Development Projects.
The Corps has made the determination of 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) and the May 13, 2019 addendum. Use of the Manatee Key resulted in the following sequential determination: A>B>C>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.
The Corps has made the determination of MANLAA for the wood stork. The Corps has concurrence with this determination pursuant to The Corps of Engineers, Jacksonville District, U.S. Fish and Wildlife Service, South Florida Ecological Services Field Office and State of Florida Effect Determination Key for the Wood Stork in South Florida, January 2010 (Wood Stork Key). Use of the Wood Stork Key resulted in the following sequential determination: A>B>Project impacts to suitable foraging habitat (SFH) is less than ½ acre MANLAA. The project lies within the buffer for the 619041 colony site, but affects less than ½ acre of SFH. No further consultation with the Service is required.
May affect, not likely to adversely affect; informal consultation required:
For these species: Green sea turtle (Chelonia mydas), Kemp’s ridley sea turtle (Lepidochelys kempii), Loggerhead sea turtle (Caretta caretta), Smalltooth sawfish (Pristis pectinata) (STSF)
Basis for determination(s): The Corps has made the determination of MANLAA for the STSF and three species of swimming turtles. The sea turtle species and the STSF, if present in the project area may be injured if struck by construction equipment or materials. This risk is discountable due to the species mobility and the fact that the proposed work will be completed from land. Additionally, the applicant’s implementation of the Sea Turtle and Smalltooth Sawfish Construction Conditions will further reduce the risk of effects to listed species. On 4 August 2020, the Corps initiated formal consultation with NMFS-PRD for the project. The Corps will await a response from the agency.
May affect, likely to adversely affect; formal consultation required:
For these species: Smalltooth sawfish critical habitat (STSF DCH)
Basis for determination(s): The Corps made the determination of may affect, likely to adversely affect, for STSF DCH, which is characterized by two essential features, red mangroves and shallow, euryhaline waters. On August 4, 2020, the Corps initiated formal consultation with NMFS-PRD for the project and will await a response from the agency.
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 0.44 acres of unconsolidated bottom utilized by various life stages of marine aquatic species. Our initial determination is that the proposed action would not have a substantial adverse impact on EFH or Federally managed fisheries in the Caloosahatchee River Estuary or 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 approximately 1,685 feet away from the near bottom edge of the Intracoastal Waterway Federal channel.
SECTION 408: The applicant will require permission under Section 14 of the Rivers and Harbors Act (33 USC 408) because the activity, in whole or in part, would alter, occupy, or use a Corps Civil Works project. The applicant will be required to obtain a Consent to Easement from the Corps’ Real Estate Division.
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 Corps jurisdiction has been verified by regulatory 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 the attention of the District Engineer through the Fort Myers Permits Section, 1520 Royal Palm Square Boulevard, Fort Myers, Florida 33919 within 30 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 Boulevard, Fort Myers, Florida 3391; 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.