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:
City of Cape Coral
1015 Cultural Park Boulevard
Cape Coral, FL 33990
WATERWAY AND LOCATION: The project would affect waters of the United States associated with the Cape Coral Yacht Club marina basin, adjacent canals, and the Caloosahatchee River. The project site is located at 5819 Driftwood Parkway, Cape Coral, Lee County, Florida.
Directions to the site are as follows: From Interstate 75, take Colonial Boulevard west over the Midpoint Bridge to Del Prado Boulevard, take Del Prado south two miles to Coronado Parkway, take Coronado south 2.5 miles to Lucerno Parkway, take Lucerno east 0.4 mile to Driftwood Parkway, take Driftwood 0.4 mile south to project site.
APPROXIMATE CENTRAL COORDINATES:
Basic: renovate an existing public waterfront facility.
Overall: renovate an existing facility to provide improved and updated public access to recreational activities such as boating, swimming, and tennis courts, and other amenities such as an existing restaurant.
EXISTING CONDITIONS: The existing facility is a public park with amenities including a beach, a 117-slip marina, two-lane boat ramp, and a fishing pier, as well as upland facilities including a ballroom, community center, restaurant, tennis, shuffleboard and racquetball courts, and a playground area.
The applicant states that there are no mangroves, seagrasses, oyster reefs, or other aquatic resources within the project footprint, including the areas waterward of the existing boat ramp and seawalls.
PROPOSED WORK: The applicant seeks authorization for the following:
a. remove all of the existing docks along the facility’s shoreline in the basin and adjacent canals,
b. construct new docking facilities providing 162 slips, consisting of 25,858 square feet of overwater structure (15,347 square feet of fixed wooden structure, and 10,511 square feet of floating structure), including a fuel dock and wastewater pumpout slip, with 621 wooden pilings (wrapped with PVC from one foot above Mean High Water (MHW) to one foot below the substrate) and 70 concrete pilings, all installed by jetting,
c. construct 2725 linear feet of seawall within 18” of the existing seawall, with the existing wall remaining in place behind the new wall,
d. maintenance dredge 43,362 square feet (1212 cubic yards) of material to a depth of -4 feet Mean Low Water within the marina basin and adjacent canals, done mechanically from a barge, with the spoil temporarily staged in the upland parking lot on the north side of the project site and then either used as beach fill onsite if appropriate or hauled to an upland disposal site if not appropriate as fill,
e. remove the existing boat ramp, including the docks, and fill in the ramp and access channel, including filling approximately 6060 square feet (449 cubic yards) of material below MHW and approximately 2284 square feet (114 cubic yards) of material along MHW and above to expand the beach area, using dredged material as described above if appropriate,
f. refurbish the existing breakwater/groin structure on the west side of the current boat ramp area with a 16” wide, 26’ long steel panel with a concrete cap and 6’ of riprap along the northwest side,
g. construct a new 83’ by 79’, two-lane boat ramp in the marina basin,
h. install two 8’ diameter flushing culverts from the canal to the north to the marina basin, with grating at both ends to prevent access by manatees, sawfish, or other marine species,
i. install stormwater outfalls in the new/replaced seawall, with grating for those outfalls that are potentially accessible to manatees, sawfish, or other marine species
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:
Best management practices will be followed throughout construction activities. Turbidity curtains will be employed for in-water work and silt screens for upland based improvements.
COMPENSATORY MITIGATION: The applicant has provided the following explanation why compensatory mitigation should not be required:
The applicant states that there are no mangroves, marsh vegetation, seagrasses, oyster beds, hardbottom, or other wetland or aquatic habitats present in the project footprint. Therefore, there is no loss of aquatic resource function associated with this project.
CULTURAL RESOURCES: The Corps is evaluating the undertaking for effects to historic properties as required under Section 106 of the National Historic Preservation Act. This public notice serves to inform the public of the proposed undertaking and invites comments including those from local, State, and Federal government Agencies with respect to historic resources. Our final determination relative to historic resource impacts may be subject to additional coordination with the State Historic Preservation Officer, those federally recognized tribes with concerns in Florida and the Permit Area, and other interested parties.
ENDANGERED SPECIES: The project is within the consultation areas for the Florida scrub jay, Florida bonneted bat, American crocodile, and the West Indian manatee, within the core foraging area of at least one wood stork nesting colony, within designated critical habitat for the West Indian manatee and the smalltooth sawfish, and partly within a sawfish limited exclusion zone.
Bonneted bat, scrub jay: Based on the existing site conditions and the types of activities proposed, the Corps has determined that the project would have no effect on the Florida scrub jay or the Florida bonneted bat. No further consultation is necessary for these species.
Wood stork: The Corps considered the 6060 square-foot area waterward of the existing boat ramp to be suitable wood stork foraging habitat. 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.
American crocodile: The Corps expects that the inclusion of required standard protection measures for manatees and other federally listed aquatic species in a Department of the Army permit, if issued, would also protect any American crocodiles within the project boundaries. Therefore, the Corps has determined that the proposed project may affect, but is not likely to adversely affect the American crocodile, and will request U.S. Fish and Wildlife concurrence with this determination pursuant to Section 7 of the Endangered Species Act.
Manatee: The applicant proposes to add 45 new slips to the marina. The applicant states that none of those slips are for repeat-use vessels such as water taxis or tour boats. The applicant also proposes to construct culverts and stormwater outfalls in waters accessible or potentially accessible to manatees, with grating to prevent access. The applicant did not provide documentation that the project has been developed or modified to be consistent with Lee County’s State-approved MPP and has been verified by a FWC review or that the number of slips is below the MPP threshold. Use of the April 2013 effect determination key for the manatee resulted in an effect determination of ‘may affect’ (A-B-C-G-H-I-J-K). By separate letter, the Corps will request initiation of formal consultation with the U.S. Fish and Wildlife Service pursuant to Section 7 of the Endangered Species Act.
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 project did not quality for JAXBO because approximately 230 linear feet of the seawall replacement, the proposed fuel dock and three additional docks, a portion of the proposed dredging, and potentially a stormwater outfall, occur within the sawfish limited exclusion zone. Additionally, the dredged material may potentially be used as fill for the existing boat ramp and access channel, the breakwater does not meet the criteria described in Activity 7 of the JAXBO, and the proposed boat ramp is greater than 40’ wide. The Corps has determined the proposal may affect the smalltooth sawfish or its designated critical habitat, and may affect, but is not likely to adversely affect swimming sea turtles. The Corps will request initiation of formal consultation for the sawfish and concurrence for the turtles with the National Marine Fisheries Service pursuant to Section 7 of the Endangered Species Act by separate letter.
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 1.8 acres of unvegetated estuarine habitat 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 GIS mapping, the closest waterward edge of the proposed project is approximately 1900 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/has not] been verified by Corps personnel.
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 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 aquatic resources. 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 email@example.com; 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.
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.
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.
WATER QUALITY CERTIFICATION: This public notice serves as the notification to the EPA pursuant to section 401(a)(2) of the Clean Water Act. Water Quality Certification may be required from the Florida Department of Environmental Protection.
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.