TO WHOM IT MAY CONCERN:
The Jacksonville District of the U.S. Army Corps of Engineers (Corps) proposes to issue this Programmatic General Permit (PGP) 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) which gives general authority to the Seminole Tribe of Florida (STOF) for its administration of the discharge of fill material and placement of structures within the Brighton STOF Indian Reservation (BSIR) for following minor activities: single family home sites, utility lines, recreational facilities, boating, agricultural use, commercial use, government facilities, water control activities, ditch maintenance, and road construction.
The current Programmatic General Permit (PGP) is set to expire on December 22, 2022. The proposed reissuance updates and reorganizes the terms and conditions. A draft of the special conditions is included in this notice.
On December 22, 2017, the Corps reissued the above referenced PGP for minor activities located within Brighton Reservation for a 5-year duration. During this time-period, the SAJ-84 has been utilized for 26 different projects.
The project area subject to this PGP includes the 36,700-acre BSIR, which is part of the historic Western Okeechobee-Kissimmee Basin wetland system and is located north of Big Cypress National Preserve and northwest of Lake Okeechobee in Glades County, Florida (Attachment 2).
*DRAFT* SPECIAL CONDITIONS:
1. Limits of Authorized Work: This PGP is limited to the discharge of dredge or fill material and minor structures within waters of the U.S. for the following minor activities: single family home sites, utility lines, recreational facilities, boating, agricultural use, commercial use, government facilities, water control activities, ditch maintenance, and road construction. Acreage thresholds and conditions for use are contained in Attachment 1.
2. Permit Area: Specific use is limited to the areas shown in Attachment 2 located within the BSIR.
3. Limits of Fill: This permit authorizes minor activities involving the placement of fill material in up to 50 acres of federally jurisdictional wetlands per year, not to exceed a total of 100 acres of jurisdictional wetlands within the BSIR over a five–year period, beginning on the effective date of this permit.
4. Reporting Address: The STOF shall submit all reports, notifications, documentation and correspondence required by the general and special conditions of this permit to either (not both) of the following addresses:
a. For electronic mail (preferred): SAJ-RD-Enforcement@usace.army.mil (not to exceed 15 MB).
b. For standard mail: U.S. Army Corps of Engineers, Regulatory Division, Enforcement Section, P.O. Box 4970, Jacksonville, FL 32232-0019.
The STOF shall reference this permit number, SAJ-2015-01075 (SAJ-84), on all submittals.
5. Compensatory Mitigation: Mitigation requirements will be satisfied by generating
functional capacity credits in accordance with the Advanced Mitigation Program (AMP) proposed at the FBI Mitigation Area Tract (Attachment 3). The AMP was previously authorized by Nationwide Permit 27 under file number SAJ-2013-01462 on December 16, 2016. No changes to PGP (SAJ-84) Ledger will occur without prior approval by the Corps. This ledger shall include, but not be limited to, the following information:
a. Permittee Name
b. Permittee Address and Contact Information
c. Date of DA permit verification
d. Date of credit purchase/release
e. Type of credit(s) purchased
f. Amount of credit(s) purchased
g. Total Credits purchased
h. Total Credits released/available
A copy of the ledger shall be provided to the Corps on an annual basis, or upon
request. Information recorded in the ledger shall be subject to amendment/revision at the Corps discretion.
6. Pre-construction Notification (PCN): Before any activities may be conducted pursuant to this authorization, the applicant must submit a pre-construction notification to the Seminole Tribe of Florida (STOF). The STOF will forward a copy of all PCN’s to the Corps, with the STOF’s determination of compliance with this authorization, as a part of the quarterly reporting requirements prescribed by the associated Coordination Agreement. All PCN submittals shall include the following information, at a minimum:
a. ENG FORM 4345 (signed by an authorized representative of the Tribe).
b. Maps will identify federally jurisdictional wetlands and waters consistent with the 1987 Corps of Engineers Wetland Delineation Manual, as modified by the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Atlantic and Gulf Coastal Plain Region (Version 2.0, November 2010, or most recent version). A minimum of two sets of data sheets per wetland shall be submitted. The total number of data sheets will vary with each site, depending on the number of wetlands.
c. Provide a clear description (including maps) of the proposed work and wetland impact areas; analysis of impacts to Federally listed wildlife species; Wetland Rapid Assessment Procedure analysis of direct and secondary wetland impacts; and an updated version of the Brighton Reservation PGP (SAJ-84) Ledger.
7. Erosion Control: Prior to the initiation of any work authorized by this permit, the permittee shall install erosion control measures along the perimeter of all work areas to prevent the displacement of fill material. Immediately after completion of the final grading of the land surface, all slopes, land surfaces, and filled areas adjacent to wetlands shall be stabilized using sod, degradable mats, or a combination of similar stabilizing materials to prevent erosion. For dredging activities, all dredged or excavated materials will be deposited and retained in an area that is not a water of the United States unless specifically approved by the Corps under a separate authorization and proper siltation controls must be used. The erosion and siltation control measures shall remain in place and be maintained until all authorized work has been completed and the site has been stabilized.
8. Cultural Resources/Historic Properties: If cultural resources, as defined by the Seminole Tribe of Florida’s Cultural Resource Ordinance (Ordinance # C-02-14); which includes but is not limited to places and items of special cultural importance, historic properties, archaeological sites/materials, and burial resources) are encountered, then the Applicant shall immediately stop all work and ground-disturbing activities within a 100-meter diameter of the discovery and notify the Tribal Historic Properties Officer (THPO) within the same business day (8 hours). After such notification, work authorized by this PGP may not resume without written authorization from the THPO.
9. Biological Opinion: This Corps permit does not authorize the Tribe to take an endangered species, in particular the Florida panther (Puma concolor coryi). In order to legally take a listed species, you must have separate authorization under the Endangered Species Act (ESA) (e.g., an ESA Section 10 permit, or a BO under ESA Section 7, with “incidental take” provisions with which you must comply). The Tribe’s U.S. Fish and Wildlife Service (Service) Programmatic Biological Opinion, dated December 19, 2014 and subsequent modifications, for the Wildlife Conservation Plan (WCP), Fire Management Plan, and Forest Management Plan (Service CPA Code: 2013-CPA-0222) contains mandatory terms and conditions to implement the reasonable and prudent measures that are associated with “incidental take” that is also specified in the BO. Your authorization under this PGP is conditional upon your compliance with all of the mandatory terms and conditions associated with incidental take of the attached BO, which terms and conditions are incorporated by reference in this permit. Failure to comply with the terms and conditions associated with incidental take of the BO, where a take of the listed species occurs, would constitute an unauthorized take, and it would also constitute non-compliance with your Corps permit. The Service is the appropriate authority to determine compliance with the terms and conditions of its BO, and with the ESA.
a. The Tribe shall monitor the number of SAJ-84 permit verifications and provide quarterly reports to the Corps and Service regarding the number of permits issued under this PGP. The Tribe shall provide information on Corps project number, permit date, total project acreage, project wetland acreage, latitude and longitude in decimal degrees, and Panther Habitat Unit (PHU) values per project, per year, and the PGP impact and mitigation totals (wetland and PHUs) be sent to the Service annually. This information may be incorporated into the AMP credit/debit ledger and the annual compensatory mitigation report. Wetland impact PHUs shall not exceed the amount of PHUs available on the ledger.
b. Upon locating a dead, injured, or sick threatened or endangered species, initial notification must be made to the nearest Service Law Enforcement Office; Fish and Wildlife Service; 9549 Koger Boulevard, Suite 111; St. Petersburg, Florida 33702; 727-570-5398. Secondary notification should be made to the FWC; South Region; 3900 Drane Field Road; Lakeland, Florida; 33811-1299; 1-800-282-8002.
c. Care should be taken in handling sick or injured specimens to ensure effective treatment and care or in the handling of dead specimens to preserve biological material in the best possible state for later analysis as to the cause of death. In conjunction with the care of sick or injured panthers or preservation of biological materials from a dead animal, the finder has the responsibility to carry out instructions provided by Law Enforcement.
10. Manatee Key: Prior to issuance of authorization, the dichotomous key titled “The Corps of Engineers, Jacksonville District, and the State of Florida Effect Determination Key for the Manatee in Florida, April 2013”, (https://www.saj.usace.army.mil/Portals/44/docs/regulatory/sourcebook/endangered_species/Manatee/2013_FINAL_ManateeKey.pdf)) will be used to determine potential effects to the manatee. Those determined to be a “may affect” to the manatee will not be authorized until consultation on the project has been re-initiated and concluded with the Service in accordance with the Endangered Species Act. Additionally, depending on the location of the project, some projects determined to be “may affect, not likely to adversely affect” will not be authorized until consultation on the project has been re-initiated and concluded. Note: The manatee key may be subject to revision at any time. It is our intention that the most recent version of this technical tool will be utilized during the evaluation of the permit application.
11. Manatee Conditions: For projects in waters accessible to manatees, the permittee will utilize the “Standard Manatee Conditions for In-Water Work, 2011” (https://www.saj.usace.army.mil/Portals/44/docs/regulatory/sourcebook/endangered_species/Manatee/2013_FINAL_ManateeKey.pdf)) and/or requirements, as appropriate for the proposed activity. Note: The manatee conditions may be subject to revision at any time. It is our intention that the most recent version of these conditions will be utilized during the evaluation of the permit application.
12. Eastern Indigo Snake Protection Measures: The STOF shall comply with Service “Standard Protection Measures for the Eastern Indigo Snake” (dated August 12, 2013) during project site preparation and construction. These protection measures can be found at :https://www.saj.usace.army.mil/Portals/44/docs/regulatory/sourcebook/endangered_species/Indigo/20130812_EIS%20Standard%20Protection%20Measures_final.pdf. The following shall also apply:
a. All gopher tortoise burrows, active or inactive, will be evacuated prior to site manipulation in the burrow vicinity. The excavation method selected should also minimize the potential for injury of an indigo snake.
b. Holes, cavities, and snake refuge other than gopher tortoise burrows will be inspected each morning before planned site manipulation of a particular area, and if occupied by an indigo snake, no work will commence until the snake has vacated the vicinity of proposed work.
13. Water Quality Certification: The Corps will receive 401 Water Quality Certification from the STOF’s Environmental Resource Management Department prior to re-authorizing this PGP. A copy of the WQC and its conditions will be made part of this PGP.
14. Fill Material: Only clean fill material shall be used. The fill material shall be free from items such as trash, debris, automotive parts, asphalt, construction materials, concrete block with exposed reinforcement bars, and soils contaminated with any toxic substance, in toxic amounts in accordance with Section 307 of the Clean Water Act.
15. Self-Certification: Within 60 days of completion of the authorized work, and any mitigation required, a Self-Certification Statement of Compliance must be completed and submitted to the STOF. The form must reference the site-specific Department of the Army permit number associated with the work.
16. Modification of Federal Authorized Projects: Evaluation of applications for activities to occur within the vicinity of levees, dikes, dams, or other water retaining structures will require case specific review by the Jacksonville Engineering Division in accordance with 33 U.S.C. 408 and approval from the Jacksonville District Commander prior to authorization under this PGP. Activities that occur in the vicinity of all Central and Southern Florida canals, with the exception of C-43, C-44, and Taylor Creek, will require project specific approval for compliance with 33 USC 408 from the U.S. Army Corps of Engineers prior to receiving authorization. Once, the project specific approval under 33 USC 408 has been received, and all other conditions of the permit have been met, a permit verification letter may be issued.
17. Subaqueous Utility and Aerial Transmission Lines: The discharge of dredged or
fill material is authorized by this PGP for the installation, construction,
maintenance, replacement, and/or repair of:
a. Foundations for overhead transmission line towers, poles, and anchors in all waters of the United States, excluding those areas listed in Special Condition 17 above, provided the foundations are the minimum size necessary and separate footings for each tower leg (rather than a larger single pad) are used where feasible.
b. Electrical substations in non-tidal waters of the United States, excluding areas listed in Special Condition 3 above and all non-tidal wetlands adjacent to tidal waters, providing the discharge does not cause the loss of greater than one-half acre of non-tidal waters of the United States.
c. Access roads in non-tidal waters of the United States, and all non-tidal wetlands adjacent to tidal waters, for the construction and maintenance of overhead transmission lines and electrical substations, provided the discharge does not result in the loss of greater than 1.5 acres per project. NOTE: Access roads shall be the minimum width necessary. Access roads constructed under this permit shall be made of pervious materials such as sand, gravel, limestone, etc. Access roads must be constructed so that the length of the road minimizes the adverse effects on waters of the U.S. and as near as possible to preconstruction contours and elevations (e.g., at grade corduroy roads or geotextile/gravel roads). Access roads constructed above preconstruction contours and elevations in waters of the United States must be properly bridged or culverted to maintain surface flows. Access roads used solely for construction of the overhead power line must be removed upon completion of the work and the area restored to preconstruction contours, elevations, and wetland conditions.
18. Horizontal Directional Drilling: Directional boring vaults, junction boxes, and/or
pads will not be constructed within 50 feet of the top of the bank of waterways
(rivers/streams). Horizontal directional drilling pilot, entrance, and exit holes must be the minimum diameter necessary; and, must be set back from the waterway (river/stream) bank by a minimum of 50 feet. Excavated materials and drilling mud must be stockpiled on non-wetland areas, where available. Appropriate fabric must be placed beneath all materials stockpiled in wetlands.
19. Subaqueous Utility Line Depth Requirement: Except as otherwise noted by these
Special Conditions, all subaqueous utility and/or transmission lines authorized by this PGP must be installed a minimum of 6 feet below the bottom contour of any other water of the United States. The 6-foot criterion applies to the entire authorized width of the crossing, plus a minimum of 10 feet on each side of the crossing.
20. Sidecasting: Material resulting from trench excavation may be temporarily sidecast (up to three months) into waters of the United States, provided that the material is not placed in such a manner that it is dispersed by currents or other forces. The District Engineer may extend the period of temporary side casting not to exceed a total of 180 days, where appropriate. The top 6- 12 inches of the trench should normally be backfilled with topsoil from the trench. Furthermore, the trench cannot be constructed in such a manner as to drain waters of the United States (e.g., backfilling with extensive gravel layers, creating a French drain effect). For example, utility line trenches can be backfilled with clay blocks to ensure that the trench does not drain the waters of the United States through which the utility line is installed. Any exposed slopes and stream banks must be stabilized immediately upon completion of the utility line crossing of each waterbody.
21. Maintaining Pre-Construction Contours: Dredged or fill material placed as backfill
or bedding for subaqueous utility and transmission lines must not change the
preconstruction bottom contours. Excess material must be moved to an upland disposal area.
22. Warning Signs for Subaqueous Utility and Transmission Lines: The permittee
will install signs at the shoreline to notify navigational interests of the location of
subaqueous utility and transmission lines.
23. Severing Jurisdiction: No project will be authorized under this PGP if the proposed fill activity will result in upstream waters of the United States being removed from Federal jurisdiction.
24. Marked Utilities: No work shall be performed until after the permittee provides
notification to the owner(s) or operator(s) of any marked utilities in the work area, unless the permittee is the same entity as the owner(s) or operator(s).
25. Permit Expiration: This permit shall be valid for a period of five years from the date of issuance, unless suspended or revoked by issuance of a public notice by the District Engineer. A review will be conducted to determine if continuance of the permit is in the public interest after the 5-year expiration date. If this permit expires or is revoked prior to completion of the authorized work, authorization of activities that have commenced or are under contract to commence in reliance on this permit will remain in effect provided the activity is completed within 12 months of the date this permit expired or was revoked.
AVOIDANCE AND MINIMIZATION INFORMATION:
The SAJ-84 would authorize activities that are minor and commonplace. The proposed
terms and conditions of the SAJ-84 require activities proposed for authorization to be
minimal in nature and avoid aquatic resources to the maximum practicable extent.
Compensatory mitigation requirements, when applicable, will be satisfied by generating
functional capacity credits in accordance with the Advanced Mitigation Program (AMP) proposed at the FBI Mitigation Area Tract (Attachment 3). The Advanced Mitigation Program was previously authorized by Nationwide Permit 27 under file number SAJ-2013-01462 on December 16, 2016. The FBI Mitigation Area established an 886.2 acre mitigation area and would generate a total of 86.8 mitigation credits through exotic vegetation treatment, cabbage palm removal and long-term management prescribed burning in 296.23 acres of wetlands and 590.3 acres of uplands.
Each activity proposed for authorization under the SAJ-84 will be evaluated for compliance with Section 106 of the National Historic Preservation Act (NHPA) and the guidelines of 33 CFR Part 325, Appendix C. Additionally, the PGP would require that if cultural resources, as defined by the Seminole Tribe of Florida’s Cultural Resource Ordinance (Ordinance # C-02-14) are encountered, then the applicant would need to immediately stop all work and ground-disturbing activities within a 100-meter diameter of the discovery and notify the THPO within the same business day (8 hours). After such notification, work authorized by this PGP may not resume without written authorization from the THPO.
The Bureau of Indian Affairs, as lead federal agency for Endangered Species Act, received a Biological Opinion for activities covered in this PGP. This PGP would be required to comply with the terms and conditions of U.S. Fish and Wildlife Service’s Programmatic Biological Opinion (BO) for the Wildlife Conservation Plan (WCP), Fire Management Plan, and Forest Management Plan on the species listed below in accordance with section 7 of the Endangered Species Act of 1973 (Act) (16 U .S.C. 1531; 87 Stat. 884), as amended; the Bald and Golden Eagle Protection Act of 1940 (BGEP A) (I 6 U.S.C. 668-668c ), as amended; and the Migratory Bird Treaty Act of 1918 (MBTA), (16 U.S.C. 703-712; 40 Stat. 755) as amended. This Programmatic BO was issued to the Bureau of Indian Affairs (BIA) on 19 December 2014 and subsequent addendum in 2017 and covers activities on the Brighton, Big Cypress, Hollywood and Immokalee Reservations in South Florida.
This BO considers effects to the following species:
• Bald eagle (Haliaeetus leucocephalus)
• Audubon's crested caracara (Polyborus plancus audubonii)
• Eastern indigo snake (Drymarchon corais couperi)
• Florida bonneted bat (Eumops floridanus)
• Florida panther (Puma [=Felis] concolor coryi)
• Everglade snail kite (Rostrhamus sociabilis plumbeus)
• Red-cockaded woodpecker (Picoides borealis)
• Wood stork (Mycteria americana)
Effects were also considered to the West Indian Manatee (Trichechus manatus). The PGP would require that prior to issuance of authorization, the dichotomous key titled “The Corps of Engineers, Jacksonville District, and the State of Florida Effect Determination Key for the Manatee in Florida, April 2013”, (see ttps://www.saj.usace.army.mil/Portals/44/docs/regulatory/sourcebook/endangered_species/Manatee/2013_FINAL_ManateeKey.pdf) would be used to determine potential effects to the manatee.. Those determined to be a “may affect, likely to adversely affect” to the manatee will not be authorized until consultation on the project has been re-initiated and concluded with the U.S. Fish and Wildlife Service in accordance with the Endangered Species Act. Additionally, depending on the location of the project, some projects determined to be “may affect, not likely to adversely affect” will not be authorized until consultation on the project has been re-initiated and concluded. Additionally, for projects in waters accessible to manatees, the permittee will utilize the “Standard Manatee Conditions for In-Water Work, 2011.”
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. Our initial determination is that the reissuance of the SAJ-84 and subsequent activities
to be authorized under the SAJ-84 would not have a substantial adverse impact on EFH or Federally managed fisheries in the state of Florida. 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.
COMMENTS concerning this authorization should be submitted in writing to the District Engineer, Attention, Christian Karvounis, Palm Beach Gardens Permits Section, 4400 PGA Boulevard, Suite 500, Palm Beach Gardens, Florida, 33410 or by e-mail at Christian.G.Karvounis@usace.army.mil.
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 authorization should be directed to Christian Karvounis, in writing at the Palm Beach Gardens address, by e-mail, or by telephone at 561-785-3309
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.
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 U.S. 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:
The Corps will receive 401 Water Quality Certification from the STOF’s Environmental Resource Management Department prior to re-authorizing this PGP.
COASTAL ZONE MANAGEMENT CONSISTENCY:
The activities covered under the PGP would occur on federal Indian Reservation lands. As such, coastal zone consistency concurrence from the Florida Department of Environmental Protection is not required.
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.