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:
Keith Gelder
Vanderbilt Naples Holdings, LLC
2639 Professional Circle, Suite 101
Naples, FL 34119
WATERWAY AND LOCATION: The project would affect waters of the United States associated with Vanderbilt Lagoon. The project site is located at 179 Southbay Drive and adjacent properties, Section 32, Township 48 South, Range 25 East, Naples, Collier County.
Directions to the site are as follows: From the Fort Myers Regulatory office, take I-75 South to Immokalee Road, take Immokalee west to US 41, take 41 south to Vanderbilt Beach Road, take Vanderbilt west to Southbay Drive, take Southbay to site.
APPROXIMATE CENTRAL COORDINATES:
Latitude 26.255224
Longitude -81.821245
PROJECT PURPOSE:
Basic: construct a residential and commercial development with a marina
Overall: construct a residential and commercial development with a marina in coastal Collier County or southern Lee County.
EXISTING CONDITIONS: The project site consists of 1.27 acres of property on the south side of Vanderbilt Lagoon and approximately 1.76 acres of the Lagoon itself. Existing land use includes 0.40 acre of commercial upland marina area (on the west end of the property), 0.70 acre of open land that was previously quadraplex rental properties and a restaurant, 0.11 acre of existing or recent quadraplex rental property, and 0.08 acres of area below mean-high water proposed for fill. The 0.08-acre area is predominantly open water, with some areas previously vegetated by mangroves, and some previously placed concrete shoreline stabilization material. The applicant states that there was approximately 0.04 acre of mangroves in total on the shoreline; the applicant cleared the mangroves under two state mangrove alteration permits. The lagoon area includes approximately 2500 square feet of docks and other wooden structures that will be removed. The applicant provided resource surveys of the lagoon area documenting the presence of live oysters, oyster debris, and some concrete rubble, however no submerged aquatic vegetation.
PROPOSED WORK: The applicant seeks authorization to:
a. Remove existing marina and single-family docks providing an estimated 21 wet slips and construct 21,664 square feet of new docks and other overwater structures providing 56 wet slips, including a fueling dock, and ship’s store, three transient slips for the fueling facility and ship’s store, five slips for commercial charter vessels, and 48 slips for residents, guests, and other parties.
b. Dredge 424 cubic yards of material from 9156 square feet of the proposed marina basin to a depth of -4’ below Mean Low Water, with spoil placed in an adjacent self-contained upland disposal site,
c. Place 315 cubic yards of clean fill to reclaim 3407 square feet of area below Mean High Water,
d. Install 274 linear feet of concrete seawall in front of the fill area and install 276 linear feet of concrete seawall approximately 1.5 feet waterward of two existing seawalls on either side of the fill area, and
e. Install 550 linear feet of riprap, extending no more than ten feet waterward of the face of the new seawall
AVOIDANCE AND MINIMIZATION INFORMATION: The applicant provided an alternatives analysis indicating that there are no other sites that are less environmentally damaging and practicable than the proposed site. The applicant also states that the proposed site plan is necessary to meet local requirements, address comments from local residents, and prevent the accumulation of trash and debris along the shoreline. The Corps has not completed its evaluation of the alternatives analysis at this time.
To address potential environmental impacts during construction and use of the project, the applicant states that they will use turbidity curtains and other best management practices, wrap wooden pilings to prevent seepage of chemicals, and have a Marine Operations and Management Plan.
COMPENSATORY MITIGATION: The applicant has provided the following explanation why compensatory mitigation should not be required: The applicant states that they purchased 0.04 saltwater forested mitigation credit from the Little Pine Island Mitigation Bank (LPIMB) as mitigation for the 0.04 acre of mangrove removal authorized by the two FDEP mangrove removal permits. The applicant proposes to request that the LPIMB remove 0.04 credit from the federal ledger as compensatory mitigation for this project as well. The Corps has not completed its evaluation of this mitigation proposal at this time.
CULTURAL RESOURCES: 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 project area is within the consultation areas for the piping plover, the Florida bonneted bat, the Florida scrub jay, the American crocodile, and the West Indian manatee. The site is within the core foraging area for at least one wood stork nesting colony. Construction and use of the docking facility have the potential to affect the Gulf sturgeon, smalltooth sawfish, and swimming sea turtles.
Wood Stork: The project site is within the core foraging area of at least one known wood stork colony. Wood storks could potentially forage in the 0.08 acre below Mean High Water proposed for impact. Use of the May 2010 effect determination key for the wood stork resulted in an effect determination of ‘may affect, not likely to adversely affect, no further consultation required’ (A-B) and gave programmatic concurrence for the wood stork.
Florida Bonneted Bat: The project is entirely within the Florida bonneted bat (FBB) Consultation Area. Although the residential properties may have been more than 15 feet in height, based on available information they did not provide potential FBB roosting habitat. The project impacts approximately 0.08 acre of FBB foraging habitat. Based on available information, the applicant will comply with at least two of the best management practices listed in Appendix D of the October 22, 2019 effect determination key for the FBB. Use of the key resulted in an effect determination of ‘may affect, not likely to adversely affect, no further consultation required’ (1a-2b-13a-14b) and gave programmatic concurrence for the FBB.
Sawfish, Sturgeon, Swimming Sea Turtles: 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 application, the Corps conducted a project specific review to determine if all of the PDCs were met.
The Corps has determined that the project does not meet the requirements of JAXBO because it exceeds the limits of the following PDCs: A1.1.2 (seawall or riprap distance from the Mean High Water line), A2.1.3 (number of slips for a marina), and A3.1.2.1 (square footage of dredge area). Based on the project being outside of designated critical habitat for any listed species and the applicant’s agreement to follow other PDCs and protection measures for listed species within the NMFS purview, including placement of education signs and monofilament collection boxes at the proposed marina and the use of jetting to install pilings and seawall slabs, the Corps has determined that the dock construction may affect but is not likely to adversely affect the Gulf sturgeon, swimming sea turtles, and smalltooth sawfish and will request National Marine Fisheries Service concurrence with this determination pursuant to Section 7 of the Endangered Species Act by separate letter.
West Indian Manatee: Using The Corps of Engineers, Jacksonville District, and the State of Florida Effect Determination Key for the Manatee in Florida, April 2013 with May 2019 Addendum, the Corps has determined the proposal may affect the West Indian manatee (A-B-C-G-H-I-J-L-M). The Corps will request initiation of formal consultation with the Fish and Wildlife Service/National Marine Fisheries Service pursuant to Section 7 of the Endangered Species Act by separate letter.
Other Species: The project will not impact suitable habitat for the piping plover or the Florida scrub jay, and the Corps does not expect either species to be found onsite. Therefore, the Corps has made a determination of ‘no effect’ for these two species, and no further consultation is necessary. Based on the low likelihood of a crocodile being in the permit area during construction and the expected protection measures for the manatee, sawfish, and swimming sea turtles, the Corps has also made a determination of ‘no effect’ for the American crocodile, and no further consultation is necessary. The Corps has determined the proposal would have no effect on any other listed, threatened, or endangered species or designated critical habitat.
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 0.08 acre of potential mangrove habitat and 0.22 acre of unvegetated lagoon bottom utilized by various life stages of recreationally and commercially important species in the Gulf of Mexico. 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 available information, the waterward edge of the proposed structure is not in the vicinity of any Federal channel.
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. The jurisdictional line [has/has not] been verified by Corps 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 Tampa Permits Section, 10117 Princess Palm Avenue, Suite 120, Tampa, Florida, 33610-8302 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 Fellows, in writing at the Tampa Permits Section, 10117 Princess Palm Avenue, Suite 120, Tampa, Florida, 33610-8302; by electronic mail at john.p.fellows@usace.army.mil; or, by telephone at (813) 769-7070.
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.
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.