Public Notice Notifications

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SAJ-2021-00319 (JMB)

USACE - Regulatory
Published May 17, 2021
Expiration date: 6/7/2021

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:  SS Parker Properties, LLC
                       Bobby Parker
                       125 Basin Street, Suite 105
                       Daytona Beach, Florida 32127

WATERWAY AND LOCATION: The project would impact waters of the United States within the Indian River North. The project is located 177 North Causeway, in Section 17, Township 17 South, Range 34 East, New Smyrna Beach, Volusia County, Florida.

Directions to the site are as follows: From I-95 proceed to exit 249 east, SR 44. Turn north to Canal Street. Turn north to US1. Turn east on Washington Street until reaching 177 North Causeway.

APPROXIMATE COORDINATES:  Latitude 29.033032°
                                                        Longitude -81.917334°

PROJECT PURPOSE:
Basic: Commercial Marina
Overall: To modify the existing 4 slip marina with the addition of 28 new slips near Ponce Inlet in Volusia County.

EXISTING CONDITIONS: The Freedom Boat Club site currently supports three (3) land use types/vegetative communities:

140 – Commercial and Services: This land use cover type represents the upland located in the southern portion of the site. The area is currently supports commercial building and parking.

184 – Marinas: The northern portion of the property includes an existing 4 slip marina facility marina facility within Brandon Canal.

612 – Mangrove: The north and east perimeter shoreline is dominated by a mangrove hedge.

PROPOSED WORK: The applicant seeks authorization to expand an existing marina facility, including the construction of an additional 15,648 square feet of fixed pile supported marina with 28 new slips, for a total of 32 total slips.

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:

“Upland improvements are proposed in order to increase the upland buffer for the walkway, parking and staging area. The gangway is noted to be replaced in the same location (as the previous access) as to avoid impacts to the existing shoreline vegetation which is predominately comprised of mangrove.

During construction of the marina, the project area will be encircled by a turbidity curtain which will remain in place throughout the construction period. The turbidity barrier will protect the surrounding area from sediments that could possibly get stirred during construction. The turbidity barriers will be constructed of material which will not allow manatee, sea turtles, small tooth sawfish and right whales to become entangled or entrapped. The turbidity barrier will be installed, monitored and maintained in accordance with the Standard Manatee Condition for In-Water Work and the Sea Turtle and Small Tooth Sawfish Construction Conditions.

All construction materials will be stored above the mean high water line on the upland or on work barges within the construction area. No materials will be stored in the water during construction.”

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

“Upland improvements are also proposed in order to increase the upland buffer for the walkway, parking and staging area. The gangway is noted to be replaced in the same location (as the previous access) as to avoid impacts to the existing shoreline vegetation which is predominately comprised of mangrove.

There are no impacts being proposed that would result in a requirement for mitigation.”

CULTURAL RESOURCES: The permit area has been modified by previous work; and 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: The Corps executed a Resources At Risk (RAR) evaluation for the area of the proposed project. The RAR indicated that the proposed project “may affect, not likely to adversely affect” the West Indian manatee (Trichechus manatus latirostris). Because these species are unlikely to be found in the vicinity of the Action Area, the Corps had determined that the proposed action will have “no effect” on the Atlantic salt marsh snake (Nerodia clarkii taeniata) and Florida scrub-jay (Aphelocoma coerulescens). The Corps herein requests U.S. Fish and Wildlife and National Marine Fisheries Service concurrence with this determination pursuant to Section 7 of the Endangered Species Act.

WEST INDIAN MANATEE: The Corps has determined the proposed project “may affect, not likely to adversely affect” the West Indian Manatee, pursuant to review of the “State of Florida Effect Determination Key for the Manatee in Florida” (April 2013). Review of the Manatee key resulted in the following sequential determination: A>B>C>G>H>I>J>K>N>O>P “may affect, not likely to adversely affect”. The applicant agrees to follow the ‘Standard Manatee Conditions for In-Water Work (2011)’. No further consultation is required as the project is compliant with the Volusia County Manatee Protection Plan.

ATLANTIC SALT MARSH SNAKE: The Corps has determined the proposed project have “no effect” on the Atlantic salt marsh snake (Nerodia Clarkii taeniata). The Atlantic salt marsh snake inhabits coastal salt marshes and mangrove swamps. Specifically, it occurs along shallow tidal creeks and pools, in a saline environment ranging from brackish to full strength. It is often associated with fiddler crab burrows. While these conditions present themselves along the shoreline, the applicant proposes to avoid this habitat during construction. In consideration of the location of the project site, the work proposed, and the information noted above, the Corps determined the project would have “no effect” on this species.

FLORIDA SCRUB-JAY: The Corps has determined the proposed project will have “no effect” the on Florida Scrub-jay (Aphelocoma coerulescens). The Florida scrub-jay inhabits sand pine and xeric oak scrub, and scrubby flatwoods, which occur in some of the highest and driest areas of Florida – ancient sandy ridges that run down the middle of the state, old sand dunes along the coasts, and sandy deposits along rivers in the interior of the state. These conditions do not present themselves onsite. In consideration of the location of the project site and the nature of the work proposed, the Corps determined the project would have “no effect” on this species.

The Corps has determined the proposal would have no effect on any other listed threatened or endangered species or designated critical habitat.

ENDANGERED SPECIES NATIONAL MARINE FISHERIES SERVICE (NMFS): 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 checklist, certification that the activity meets the applicable PDCs, and supporting documentation for the proposed activity were emailed to nmfs.ser.statewideprogrammatic@noaa.gov and jaxbo@usace.army.mil on 14 May 2021 to specifically address concerns related to swimming sea turtles (loggerhead, Kemp's ridley, and green), smalltooth sawfish, and the North Atlantic right whale. Therefore, the Jacksonville District satisfied the project-specific review requirements stipulated in the JAXBO and satisfied its obligation under the ESA for the above-listed species and critical habitats within the NMFS purview. No further consultation is required as the project is compliant with the NMFS’s Jacksonville District’s Programmatic Biological Opinion PDCs.

ESSENTIAL FISH HABITAT (EFH): This public notice initiates consultation with the National Marine Fisheries Service on EFH as required by the Magnuson-Stevens Fishery Conservation and Management Act 1996. There is no EFH found on the property. The Corps’ initial determination is that the proposed action would have no impact on EFH. Our final determination relative to project impacts is subject to review and coordination with the National Marine Fisheries Service.

SPINY LOBSTER: The RAR evaluation indicated the potential for spiny lobster (Panulirus argus) EFH. The Action Area does not support EFH for spiny lobster (Panulirus argus). Areas that meet the criteria for essential fish habitat-habitat areas of particular concern (EFH-HAPCs) for spiny lobster include hard bottom, Gulf of Mexico waters and substrates extending from Tarpon Springs, Florida to Naples, Florida between depths of 5 and 10 fathoms; waters and substrates extending from Cape Sable, Florida to the boundary between the areas covered by the Gulf of Mexico Fishery Management Council and the South Atlantic Fishery Management Council out to depths of 15 fathoms. In consideration of the location of the project site, the absence of suitable habitat, the work proposed, and the information noted above, the Corps determined the project would have “no effect” on this species.

SNAPPER/GROUPER: The RAR evaluation indicated the potential for snapper (Lutjanus spp.) and grouper (Mycteroperca spp. and/or Epinephelus spp.) EFH. The Action Area does not support EFH for snapper or grouper. Areas that meet the criteria for EFH-HAPCs for species in the snapper-grouper management unit include medium to high profile offshore hard bottoms where spawning normally occurs; localities of known or likely periodic spawning aggregations; nearshore hard bottom areas; mangrove habitat; seagrass habitat; oyster/shell habitat; all coastal inlets; all state-designated nursery habitats of particular importance to snapper grouper; and Council-designated Artificial Reef Special Management Zones. In consideration of the location of the project site, the absence of suitable habitat, the work proposed, and the information noted above, the Corps determined the project would have “no effect” on these species.

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 has verified the extent of Federal jurisdiction.

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 Cocoa Permits Section, 400 High Point Drive, 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, John Baehre, in writing at the Cocoa Permits Section, 400 High Point Drive, Cocoa, Florida 32926, by electronic mail at John.M.Baehre@usace.army.mil or by telephone at (321)504-3771 extension 13.

IMPACT ON NATURAL RESOURCES: Preliminary review of this application indicates that an Environmental Impact Statement will not be required. 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. By means of this notice, we are soliciting comments on the potential effects of the project on threatened or endangered species or their habitat.

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 of 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 decision, comments are used to assess impacts on endangered species, historic properties, water quality, general environmental effects, and the other public interest factors listed above. Comments are used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act 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.