Public Notice Notifications

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SAJ-2021-02795 (SP-JPF)

Published July 25, 2022
Expiration date: 8/9/2022

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
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 26.731382º 
Longitude -81.748803º 

Basic: Residential development
Overall: To construct a residential multi-family community with a 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 impacts to 14.17 acres of waters of the United States, 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 from docking facilities at the proposed marina. More specifically the project would consist of:

1) residential development consisting of 124 multi-family twin villa units and 267 single-family detached units on separate lots, an amenity center, roads, and a surface water management system

2) a residential marina with a minimum of 96 slips, 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
- Two (2) floating docks 8’ wide by 70’ long (slips not specified)

3) two (2) fixed wooden access walkways over the tidal lagoons to the boat docks, 8’ wide by 340’ long and 8’ wide and 150’ long

4) dredging and removal of 16,240 cubic yards of material, to a depth of -5’ Mean Low Water, from an existing boat basin and a 50’ wide entrance channel

5) excavation and removal of 40,000 cubic yards of material from an approximately 550,000-square foot tidal lagoon to a depth of -1’ Mean Lower Low Water (MLLW), with 20’ wide littoral shelves as shown in the project drawings

6) excavation (48,199 square feet) and dredging (3144 square feet) for a -4’ MLW-deep flushing channel between Owl Creek and the tidal lagoon, with 20’ wide littoral shelves and a paddlecraft launching area as shown in the project drawings

7) placing 900 square feet of rip-rap at the Owl Creek end of the flushing channel to prevent erosion;
The applicant also proposes to construct a 24’ wide by 180’ long fixed vehicle bridge over Owl Creek, a navigable water of the United States. This part of the project appears to fall under the regulatory authority of the United States Coast Guard. The Corps will review any wetland or surface water impacts associated with the bridge that the Coast Guard review does not address.

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.”

The Corps has not finalized its review of offsite or onsite alternatives for this project.

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

The applicant proposes on-site mitigation that includes enhancement or restoration of 103.36 acres of wetlands and 60.15 acres of uplands, which will also be preserved under a conservation easement.

The Corps has not finalized its review of the applicant’s proposed mitigation. The Corps notes that the project may be within the service area of at least one Corps-approved mitigation bank.

CULTURAL RESOURCES: The Corps is aware of recorded historic resources within or adjacent to the permit area and 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.


The project is within designated critical habitat for the West Indian manatee and the smalltooth sawfish. The project is also within an Important Manatee Area. The project is within the consultation areas for the Florida bonneted bat (FBB), the red-cockaded woodpecker (RCW), the Florida grasshopper sparrow, the Florida scrub jay, the Audubon’s crested caracara, and the American crocodile, and within the core foraging area of at least one wood stork colony. The project site contains suitable habitat for the eastern indigo snake.

American crocodile: Protection measures for manatees and for species under the jurisdiction of the National Marine Fisheries Service (NMFS) should also protect any American crocodiles from construction-related impacts. Based on this, the Corps has determined that the project may affect, but is not likely to adversely affect (MANLAA) the American crocodile, and will request U.S. Fish and Wildlife Service (USFWS) concurrence with this determination pursuant to Section 7 of the Endangered Species Act.

Audubon’s crested caracara: Based on the presence of suitable roosting and foraging habitat for caracara onsite, as well as available information indicating that there is at least one caracara nest on an adjacent property, the Corps made a determination of ‘may affect’ for the caracara, and will request initiation of formal consultation with the USFWS pursuant to Section 7 of the Endangered Species Act by separate letter.

Florida bonneted bat: The applicant provided acoustic survey data that indicated the presence of an FBB over the project site, as well as a roosting site survey of the permit area that identified five possible roosting sites with no evidence of roosting. Use of the October 22, 2019 consultation key for the FBB yielded a result of ‘may affect’ (1a-2a-3b-6a-7b-10b-12a). The Corps will request initiation of formal consultation with the USFWS pursuant to Section 7 of the Endangered Species Act by separate letter.

West Indian manatee: As stated above, the project is within designated habitat for the manatee, and within an Important Manatee Area. As also stated above, the applicant proposes to construct a tidal lagoon and a flushing channel, both of which will connect to navigable waters of the United States. Use of the April 2013 manatee effect determination key yielded a result of ‘may affect’ (A-B-C). The Corps will request initiation of formal consultation with the USFWS pursuant to Section 7 of the Endangered Species Act by separate letter.

Smalltooth sawfish: For the smalltooth sawfish and smalltooth sawfish critical habitat, as described in NMFS’s Jacksonville District’s Programmatic Biological Opinion (JAXBO) dated 20 November 2017, the Corps evaluated the project with a focus on compliance with the Project Design Criteria (PDCs) for all projects, and on the PDCs for Activity 1 (Shoreline Stabilization), Activity 2 (Pile Supported Structures), and Activity 3 (Dredging). The Corps has determined that the project does not comply with JAXBO for the following reasons:

- Based on the project drawings, the proposed riprap extends further than 10’ from the Mean High Water (MHW) line (A1.1.2) and is proposed in waters between the MHW line and -3’ MLLW (A1.8.1)
- The applicant proposes more than 50 slips (A2.1.3)
- The proposed dredging exceeds the limits described in JAXBO (A3.1)

The Corps has made a MANLAA determination for the smalltooth sawfish and a determination of ‘may affect’ for sawfish critical habitat. The Corps will request additional information from the applicant to clarify potential routes of effect and the by separate letter request concurrence from the NMFS-Protected Resource Division with the MANLAA determination for the sawfish, and initiation of formal consultation for the ‘may affect’ determination for sawfish critical habitat.

Based on the location of the project and the onsite habitat, the Corps has determined that it is highly unlikely that species within the purview of the USFWS such as RCWs, Florida grasshopper sparrows, Florida scrub jays, and species within the purview of the NMFS such as swimming sea turtles, corals, manta rays and other species would be present onsite, and has made a determination that the proposed activity will have no effect on 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 proposal (the marina and the proposed dredged marina basin and access channel) would impact approximately six acres of shallow estuarine waters utilized by various life stages of various commercially and recreationally important species. 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.

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.

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, FL 33601 within 15 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, by electronic mail at; by telephone at (813) 769-7070, or in writing at the Tampa Permits Section, 10117 Princess Palm Avenue, Suite 120, Tampa, FL 33601.

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: Water Quality Certification may be required from the South Florida Water Management District (SFWMD Application No. 210818-71).

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.