SAJ-1993-00620 (SP-JDP)

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:  Brevard County

                       2725 Judge Fran Jamieson Way

                       Building A, Room 219

                        Viera, FL 32940

WATERWAY AND LOCATION:  The project would affect waters of the United States (WOTUS) associated with the Brevard County Artificial Reef (BCAR) Site 2 deployment location within the Atlantic Ocean. The project site is located approximately 15 nautical miles east of Port Canaveral, Brevard County, Florida. This is a previously permitted artificial reef site and is currently plotted on NOAA Chart 11476, Cape Canaveral to Bethel Shoal.

Directions to the site are as follows:  From Jacksonville, take I-95 South; exit onto SR 528 East towards Port Canaveral; proceed from Port Canaveral by vessel approximately 15 nautical miles east into the Atlantic Ocean, seaward of Brevard County, Florida.

APPROXIMATE CENTRAL COORDINATES:        

PROJECT PURPOSE:

Basic:  Continuation of Reef Habitat Enhancement

Overall:  To provide additional deepwater reef habitat to enhance existing and create new coral and fish habitat within the BCAR Site 2 deployment area, Brevard County Florida.

PROJECT HISTORY:  The Corps issued standard permit SAJ-1993-00620 (SP-TSD), dated 30 April 2012, authorizing the continued use of the BCAR Site 2 for the deployment of authorized material within the reef site for an additional ten (10) years, expiring on 30 April 2022. Prior to the permit expiration, the Corps issued Modification (MOD-1) dated 10 February 2021, extending the subject permit for an additional two (2) years until 30 April 2024 to facilitate the Permittee’s 2021 and 2022 applications to the Florida Fish and Wildlife Conservation Commission (FWC) for grant(s) to help fund the continued habitat creation work activities. The current application review is provided to support the Applicant’s request for an extension for an additional ten (10) years. The subject ten-year extension review may require re-initiation of Consultation with applicable federal agencies such as the National Marine Fisheries Service (NMFS). No changes to the previously authorized project design, extent, materials, methods, etc. are proposed.

EXISTING CONDITIONS:  The BCAR Site 2 deployment area is approximately 3,085 acres. This 3085-acre site was selected due to its lack of hard bottom features and its expanse of open unconsolidated sandy bottom. Site depth ranges from -76 feet to -88 feet relative to mean lower low water, depending on the location within the 3,085-acre deployment site. There have been five (5) deployments at the BCAR Site 2 in the past.  The materials deployed within BCAR Site 2 include reef balls, concrete rubble, concrete piles and steel ships.  The applicant will maintain the previously authorized minimum clearance of 50 feet from the top of the reef profile relative to MLLW.

PROPOSED WORK:  The applicant seeks an extension to the existing permit for an additional ten (10) years, authorizing continued deployment of authorized materials within the BCAR Site 2.  Material authorized for use by this permit are prefabricated artificial modules, concrete and steel culverts, steel hulled or ferro cement vessels (without engines), concrete blocks, slabs, natural limestone boulder size rocks, concrete bridge material and construction grade aluminum alloys and ferrous metals such as bridges. All materials shall be clean and free from asphalt, creosote, petroleum, other hydrocarbons, toxic residues, lose free floating material, and/or other deleterious substances. Divers will examine the ocean floor prior to each deployment to ensure that there is no live bottom. This reef site consists of 3,085 acres.

AVOIDANCE AND MINIMIZATION INFORMATION:  The applicant demonstrated in the initial review process that the location of the BCAR Site 2 avoids and minimizes impacts to marine resources. 

COMPENSATORY MITIGATION:  Consistent with the previous permit authorizations, no mitigation is proposed for the project.

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: 

U.S. Fish and Wildlife Service (USFWS):  Per coordination completed with the USFWS under standard permit SAJ-1993-00620 (SP-TSD), dated 30 April 2012, the USFWS determined that the project “may affect, not likely to adversely affect” (MANLAA) the West Indian manatee, loggerhead sea turtle, leatherback sea turtle, green sea turtle, hawksbill sea turtle, and Kemp’s ridley sea turtle. The MANLAA determination was partially based on the implementation of the Standard Manatee Conditions for In-Water Work, 2011, which the applicant agreed to implement. No further consultation was required. The Corps shall coordinate with USFWS for updated concurrence with the previous MANLAA determination.

National Marine Fisheries Service, Protected Resources Division (NMFS-PRD):  Per coordination completed with the NMFS-PRD under standard permit SAJ-1993-00620 (SP-TSD), dated 30 April 2012, the NMFS-PRD determined that the project “may affect, not likely to adversely affect” (MANLAA) the blue whale, finback whale, humpback whale, North Atlantic right whale, sei whale, and sperm whale, five (5) species of sea turtles (loggerhead, leatherback, green, hawksbill, and Kemp’s ridley), and smalltooth sawfish. The MANLAA determination was partially based on the implementation of the Sea Turtle and Smalltooth Sawfish Construction Conditions and that all work activities are performed between April 15 and November 14, which is outside of the right whale calving season. Subsequent to issuance of standard permit SAJ-1993-00620 (SP-TSD), the U.S. Army Corps of Engineers Jacksonville District’s Programmatic Biological Opinion (JAXBO) was issued on 20 November 2017. The Corps has 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 shall be emailed to nmfs.ser.statewideprogrammatic@noaa.gov and jaxbo@usace.army.mil. Therefore, the Jacksonville District shall satisfy the project-specific review requirements stipulated in the JAXBO and satisfy its obligation under the ESA for the above-listed species and critical habitats within the NMFS purview. No further consultation is required.

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 Corps’ preliminary determination is that the project would not have significant adverse effect on EFH. 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, Habitat Conservation Division (NMFS-HCD).

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 Cocoa Permits Section, 400 High Point Drive, Suite 600, 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, Jason D. Perryman, in writing at Cocoa Permits Section, 400 High Point Drive, Suite 600, Cocoa, Florida 32926; by electronic mail at jason.d.perryman@usace.army.mil; by facsimile transmission at (321) 504-3803; or, by telephone at (321) 504-3771 x10. 

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