Public Notice Notifications

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SAJ-2021-02795 (SP-MLB)

Published Oct. 14, 2021
Expiration date: 11/13/2021
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 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:

DR Horton
c/o Justin Robbins
10541 Ben C Pratt Six Mile Cypress Parkway
Fort Myers, Florida 33966

WATERWAY AND LOCATION: The project would affect waters of the United States, including wetlands, associated with Owl Creek, Trout Creek, Caloosahatchee River and the Caloosahatchee Watershed (HUC 8: 03090205). The project site is located on three (3) adjoining undeveloped parcels located at: 12850 North River Road (18-43-26-00-00002.0020), 18420 North River Road (STRAP 18-43-26-00-00002.0000), and 17900 North River Road (19-43-26-00-00002.1020), in Sections 18 and 19, Township 43 South, Range 26 East, Alva, Lee County, Florida.

Directions to the site are as follows: From I-75 take exit 143 towards North Fort Myers/Cape Coral; make a left onto SR 78 and head east for 3 miles; make a left onto SR 31 and head north for 1 ¼ mile; make a right onto North River Road (SR 78) and head east for ¾ mile to Owl Creek Drive; the project area is on your right, south of North River Road and extends to the Caloosahatchee River.

Latitude: 26.731828°
Longitude: -81.749355°

Basic: Residential development
Overall: To construct a residential multi-family community with private marina, in Eastern Lee County, Florida.

EXISTING CONDITIONS: The proposed project area is 342.68 acres including approximately 114.84 acres of wetlands, 10.39 acres of open waters, and 217.45 acres of uplands. Based on a review of historic aerial photography, the property had been primarily used for row crop farming. By early 2014 farming operations had ceased. This area is currently being used as improved pasture by cattle. Many of the forested areas have been disturbed by cattle and primitive surface water management. Twenty-four (24) vegetation associations were identified using the Florida Land Use, Cover and Forms Classification System (FLUCCS), land uses mainly consists of FLUCCS Code 211 (Improved Pastures), FLUCCS Code 211H (Improved Pastures – hydric), FLUCCS Code 422 (Brazilian Pepper), FLUCCS Code 427D (Live Oak, Disturbed), FLUCCS Code 428D (Cabbage Palm), FLUCCS Code 429 (Wax Myrtle), FLUCCS Code 434D (Hardwood – Coniferous Mixed, Disturbed), FLUCCS Code 510 (Streams and Waterways), FLUCCS Code 510D (Ditches), FLUCCS Code 524 (Lakes less than 10 acres which are dominant features), FLUCCS Code 618D (Willow Disturbed), FLUCCS Code 619BP (Hydric Brazilian Pepper), FLUCCS Code 630D (Wetland Forested Mixed, Disturbed), FLUCCS Code 641D (Freshwater Marsh, Disturbed), FLUCCS Code 740 (Disturbed Land), FLUCCS Code 743 (Spoil Area), FLUCCS Code 814 (Roads and Highways). The surrounding area consist of North River Road to the north, undeveloped pastureland to the east and west, and the Caloosahatchee River to the south.

PROPOSED WORK: The proposed project would result in the discharge of 61,823 cubic yards of fill into 14.17 acres of waters of the United States (WoUS), including: 3.38 acres of wetland fill, 7.44 acres of wetland excavation, 1.08 acres of other surface water fill (ditches and lakes), 2.01 acres of other surface water excavation, 0.13-acre of surface water fill (streams and waterways), and 0.13-acre of surface water shading impacts for the construction of a 391 unit residential development with marina. More specifically the project would consist of:

1) constructing 124 multi-family twin villa units and 267 single-family detached units on separate lots, and an amenity center;
2) constructing a 96-slip residential marina with two floating docks for temporary mooring measuring 20,950 square feet over water and 3,430 square feet over land with the option for boat lifts as follows:
- Dock A & F support 20 slips at 15’ wide by 50’ long
- Dock B & C support 40 slips at 14’ wide by 40’ long
- Docks D & E support 36 slips at 12’ wide by 30’ long
- Floating Docks (2) are 8’ wide by 70’ long
3) installing two (2) fixed wooden access bridges over the tidal lagoons to the boat docks, 8’ wide by 340’ long and 8’ wide and 150’ long;
4) dredging and removing 16,240 cubic yards of material, to a depth of -5’ mean low water line (MLW), from an existing boat basin and a 50’ wide entrance channel;
5) dredging and removing 40,000 cubic yards of material from a 556,682 square foot tidal lagoon, to a depth of -1’ mean lower low water;
6) constructing 20’ littoral shelves around the flushing channel and tidal lagoons all located within a 134,060 square foot area;
7) placing 900 square feet of rip-rap at the tip of the flushing channel to prevent erosion;
8) constructing a 24’ wide by 180’ long fixed vehicle bridge.

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 implemented practical design modifications to reduce and virtually eliminate all adverse impacts to the wetland functions provided by the higher quality wetlands and focusing unavoidable impacts to lower quality wetlands.

In addition to minimizing impacts to the higher quality wetlands on-site, the plan also minimizes impacts to the higher quality uplands on the property. Specifically, the preserve areas were designed to protect as much of the higher quality native upland habitat as feasible. As part of the site plan, native upland preserves are located adjacent to the proposed wetland preserves to be used by wetland dependent species which utilize uplands for nesting and denning, as well as providing buffers to the wetlands. The site plan also minimizes impacts to listed species found on-site. The larger and higher quality wetlands on-site are being preserved and enhanced for utilization by listed wading birds. The preserve areas will be enhanced through the removal of exotics and planting with native vegetation to improve their functions for wildlife.”

COMPENSATORY MITIGATION – The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment: “The Project proposes on-site mitigation that includes 103.36± acres of wetland. In total, 163.51± acres which includes 103.36 acres of wetland mitigation and 60.15 acres of
uplands will be preserved and enhanced and placed under a conservation easement.

This Project will include the following mitigation measures in order to offset potential cumulative and secondary impacts from marina-related facilities:
1) standard manatee construction conditions;
2) manatee educational programs; and
3) funding in the amount of $546 per slip, earmarked for increased Lee County marine law enforcement.”

CULTURAL RESOURCES: The Corps is aware of historic property/properties within or in close proximity of the permit area. The Corps will 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 Corps has determined the proposed project may affect the West Indian Manatee (Trichechus manatus). 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.

The Corps has determined the proposed project may affect, but is not likely to adversely affect, the Eastern Indigo Snake (Drymarchon corais couperi), Red-cockaded Woodpecker (Picoides borealis), Florida Grasshopper Sparrow (Ammodramus savannarum floridanus), Wood Stork (Mycteria americana), Florida Scrub Jay (Aphelocoma coerulescens), Florida Bonneted Bat (Eumops floridanus), Audubon's Crested Caracara (Caracara cheriway), , Smalltooth Sawfish (Pristis pectinata), and/or their designated critical habitats. The Corps will request U.S. Fish and Wildlife Service and National Marine Fisheries Service concurrence with this determination, pursuant to Section 7 of the Endangered Species Act.

The Corps has determined that the proposal would have no effect on the American crocodile (Crocodylus acutus) or any other Federally listed species, and/or their designated critical habitat. No further consultation with the Service is required for these species.

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 project site does not contain EFH; therefore, the Corps has determined that the proposed project would have no effect to EFH.

NAVIGATION: Based on the Florida State Plane coordinates provided by the applicant, the waterward edge of the proposed structure is 220 feet away from the near bottom edge of the Intracoastal Waterway 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 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 Fort Myers Permits Section, 1520 Royal Palm Square Blvd. Suite 310, Fort Myers, FL 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, Michelle L. Bartley, in writing at the Fort Myers Permits Section, 1520 Royal Palm Square Blvd. Suite 310, Fort Myers, FL 33919; by electronic mail at; or, by telephone at (239) 334-1975 ext. 0006.

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, aesthetics, 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.