Public Notice Notifications

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SAJ-2022-02766 (SP-TMM)

Jacksonville District
Published April 20, 2023
Expiration date: 5/19/2023

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:  Hardy Rost

                       650 Maple Terrace

                       Cookeville, Tennessee 38501

WATERWAY AND LOCATION:  The project would affect waters of the United States associated with the Matanzas River.  The project site is located at 4392 and 4396 North Ocean Shore Boulevard, Section 38, Township 11 South, Range 31 East, Palm Coast, Flagler County, Florida.

Directions to the site are as follows:  From Interstate (I) 95, take the exit toward Palm Coast Parkway heading east. Continue east across Hammock Dune Bridge and turn right onto North Ocean Shore Boulevard (A1A). From here, the two lots are approximately 0.5 miles south on the right-hand side (west) of A1A.

APPROXIMATE CENTRAL COORDINATES:         Latitude       29.566166°

                                                                                 Longitude -81.184770°


Basic: The basic project purpose is a single-family residence with access to navigation.

Overall: The overall project purpose is a single-family residence and installation of a dock for access to navigation in eastern Palm Coast, Flagler County.

EXISTING CONDITIONS:  The wetland system consists of a brackish water and freshwater system.  The project site is two undeveloped, fully forested lots. The existing area surrounding the project area consists of low-density residential home sites, the Intracoastal Waterway Federal channel, and single family docks north and south of the site.

1. Soils: A review of the soil types present was conducted to characterize the existing conditions on the proposed property. The soil review used soil surveys conducted by the United States Department of Agriculture (USDA) and Natural Resources Conservation Services (NRCS). Data are presented in accordance with Official Soil Series Descriptions (Soils Map).

    i. 6 – Favoretta Clay: This very deep, nearly level, poorly drained soil is in narrow to broad flatwood areas near major streams and drainageways. It is subject to rare flooding. Typically, the surface layer is very dark gray clay about 12 inches thick with a subsoil layer of dark gray to gray clay to a depth of 66 inches. The seasonal high water table is within a depth of 12 inches for 4 to 6 months during most years. During extended dry periods, it recedes below a depth of 40 inches. Permeability is very slow with an available water capacity of moderate to high.

    ii. 10 – Winder Fine Sand: This very deep, nearly level, poorly drained soil is on low flatwoods. The surface layer is generally very dark gray fine sand about 7 inches thick with a subsurface layer of grayish brown fine sand about 5 inches thick. The upper part of the subsoil is grayish brown sandy loam to a depth of 25 inches. The seasonal high water table is within a depth of 6 inches for 2 to 6 months. Permeability is slow or very slow with available water capacity being slow to moderate.

    iii. 34 – Cocoa-Bulow Complex, 0 to 5 percent slopes: These moderately deep to deep, nearly level to gently sloping, well drained soils are on low, narrow ridges parallel to the Atlantic coastline. These soils are underlain by a coquina limestone formation. These soils generally contain 53% Cocoa soils and 37% Bulow soils. Typically, the Cocoa soil has a surface layer of grayish brown sand about 3 inches thick with a subsurface layer of pale brown sand 13 inches thick. Coquina limestone is at a depth of about 35 inches, but varies from 20 to 40 inches. The Bulow soils have a surface layer of dark grayish brown sand about 5 inches thick with a subsurface layer of very pale brown sand about 15 inches. Coquina is at a depth of about 40 to 60 inches. The seasonal high water table is at a depth of more than 72 inches in most years. In both soils the permeability is moderately rapid above the coquina limestone. Available water capacity is very low in both soils.

2. Vegetation: The subject property is 4.26 acres and consists of mixed wetland hardwoods, upland hardwood forests and streams and waterways. The land use for the subject property was classified in accordance with the Florida Department of Transportation (FDOT) (1999) Florida Land Use, Cover and Forms Classification System (FLUCCS). The vegetative communities and land use types observed on the subject property are described in detail below.

    i. 425 – Temperate Hardwood 0.88 acre – This habitat is relegated to a small area along N. Ocean Shore Blvd. on the east side of the property. This habitat has a canopy of live oak (Quercus virginiana), southern red cedar (Juniperus virginiana), and cabbage palm (Sabal palmetto). The subcanopy consists of cabbage palm, live oak, dahoon holly (Ilex cassine), yaupon holly (Ilex vomitoria), black cherry (Prunus serotina), southern red cedar, Brazilian pepper (Schinus terebinthifolia), and sweet gum (Liquidambar styraciflua) with a groundcover of catbriar (Smilax spp.), broomsedge (Andropogon virginicus), blackberry (Rubus spp.), common day flower (Commelina diffusa), sword fern (Nephrolepis exaltata), coontie (Zamia intergrifolia), wild coffee (Psychotria nervosa), American beautyberry (Callicarpa americana), bracken fern (Pteridium aquilinum), and Caesar weed (Urena lobata).

    ii. 510 – Streams and Waterways 0.29 acres – This habitat is associate with the Matanzas River where the proposed dock will be constructed.

    iii. 617 – Mixed Wetland Hardwoods 3.09 acres – This habitat makes up a majority of the site and has a canopy of American elm (Ulmus americana), hackberry (Celtis occidentalis), dahoon holly, live oak, and cabbage palm. The subcanopy consisted of paper mulberry (Broussonetia papyrifera), cabbage palm, saltbush (Baccharis halimifolia), sweet gum, red cedar, and dahoon holly with a ground cover of blackberry, Brazilian pepper, Caesar weed, softrush (Juncus effusus), cinnamon fern (Osmundastrum cinnamomeum), sword fern, and false hop sedge (Carex lupuliformis).

PROPOSED WORK:  The applicant seeks authorization for the following:

    1. To place 2,500-cubic-yards of clean fill into 1.1 acres of waters of the United States (palustrine forested wetlands adjacent to tidal waters) for construction of a residence and associated infrastructure.

    2. To incur 0.73 acre of secondary impacts to waters of the United States (palustrine forested wetlands adjacent to tidal waters) in relation to the fill for the single-family residence.

    3.  To construct a 689-square-foot dock in waters of the United States (open, tidal water). The dock would include a 4-foot by 20-foot-long pier, a 30.6-foot wide by 43-foot-long terminal pier that has two boat lifts, and one 12-foot long by 11.9-foot-wide double jet ski lift. The southern boat lift would have a 43-foot-long by 13.11-foot-wide roof with a 1-foot overhang.

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:

“For the development of the house and due to the narrow nature of the parcels, and it being in the floodplain, drainage fields are required for the development of the property. These drainage fields must be placed further back on the property along with the house because of how narrow the parcels are toward the roadway.” Additionally, the impacts have been reduced from 2.19 acres to 1.11 acres.

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

“Because these impacts are considered Retained by the USACE, wetland mitigation

requires the purchase of offsite mitigation credits from a regionally significant mitigation bank unless there are no available credits. Mitigation credits will be purchased from an offsite mitigation bank after final site plan revisions and wetland impacts have been approved by both FDEP and USACE.”


The Corps has evaluated the undertaking for effects to historic properties as required under Section 106 of the National Historic Preservation Act and has followed the guidelines of 33 CFR Part 325, Appendix C. The Corps has reviewed the submitted Cultural Resources Assessment Survey (CRAS) report and finds the report complete and the field work appropriate and sufficient in accordance with Chapters 1a-46, Florida

Administrative Code and with Federal regulation 36 CFR 800: Protection of Historic

Properties. The survey documented conditions across the project area through

pedestrian survey and shovel testing. No cultural resources were identified in the project

area, and the investigator recommends no further work. The Corps concurs with the

investigator’s recommendations and finds that the proposed project would have no

effect to historic properties and no further work is required. Therefore, the Corps has determined that the project would have No Effect to Historic Properties. This determination has already been coordinated with the State Historic Preservation Office.


The Corps has determined the proposed project may affect, but is not likely to adversely affect the West Indian Manatee (Trichechus manatus). The work proposed would result in the installation of a structure with backfill of 3-feet – 7-feet of the Hopkins Creek Tributary. However, the impacts to saltmarsh vegetation would be discountable. Use of the United States Fish and Wildlife Service’s (USFWS) Manatee Key Florida, April 2013 resulted in the sequence A > B > C > G > H > I > N > O > P4 > may affect, not likely to adversely affect. The USFWS previously indicated that they concur with determinations of may affect, not likely to adversely affect based on that key; and, that no additional consultation is required.

The Corps has determined the proposed project may affect, but is not likely to adversely affect the Wood Stork (Mycteria americana). The project site is within the 13-mile USFWS North Florida core foraging area for a Wood Stork nesting colony. The Corps evaluated potential effects to Wood Stork using The Corps of Engineers, Jacksonville District, U.S. Fish and Wildlife Service, Jacksonville Ecological Services Field Office and State of Florida Effect Determination Key for the Wood Stork in Central and North Peninsular Florida, September 2008.  Use of this key resulted in the sequential determination A > B > C > not likely to adversely affect, as the project would affect less than 0.5 acres of suitable foraging habitat.  The USFWS previously indicated that they concur with determinations of not likely to adversely affect based on that key; and, that no additional consultation is required.

The Corps has determined the proposed project would have no effect on the Florida Scrub Jay (Aphelocoma coerulescens). Information from USFWS indicates that the Florida Scrub Jay has extremely specific habitat requirements. It is endemic to peninsular Florida inhabiting fire dominated, low-growing, oak scrub habitat found on well-drained sandy soils. The species may persist in areas with sparser oaks or scrub areas that are overgrown, but at much lower densities and with reduced survivorship. According to USFWS, bare sand patches are essential for foraging and acorn-caching. Scrub habitat is a community composed of evergreen shrubs, with or without a canopy of pines, and is found on dry, infertile, sandy ridges. The signature scrub species, three species of shrubby oaks, Florida rosemary (Ceratiola ericoides), and sand pine (Pinus clausa), are common to scrubs throughout the state. The dominance of these species, however, is variable from site to site. The most common form is oak scrub, dominated by three species of shrubby oaks – myrtle oak (Quercus myrtifolia), sand live oak (Quercus geminata), and Chapman’s oak (Quercus chapmanii) -- plus rusty staggerbush (Lyonia ferruginea) and saw palmetto (Serenoa repens). The site is overgrown with no open, sandy areas making this site not conducive to Florida Scrub Jay habitat. Therefore, the Corps has determined the proposed project would have no effect on the avian species; and, that no additional consultation is required.

The Corps has determined the proposed project may affect, but is not likely to adversely affect the eastern indigo snake (Drymarchon corais couperi). The Corps utilized the Eastern Indigo Snake Programmatic Effect Determination Key January 25, 2010, addendum August 13, 2013, which resulted in the sequence A > B > C > not likely to adversely affect as there are no gopher tortoise burrows, holes, cavities or other refugia where a snake could be buried or trapped or injured during project activities. The USFWS previously indicated that they concur with determinations of not likely to adversely affect based on that key; and, that no additional consultation is required.

The Corps has determined the proposal may affect, but would be not likely to adversely affect the Shortnose sturgeon (Acipenser brevirostrum), Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus), smalltooth sawfish (Pristis pectinata), green sea turtle (Chelonia mydas), Kemp’s Ridley sea turtle (Lepidochelys kempii), leatherback sea turtle (Dermochelys coriacea), and loggerhead sea turtle (Caretta caretta): The Corps evaluated the proposed work utilizing National Marine Fisheries Service (NMFS) 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 critical habitat.  For this authorization, 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 will be emailed to NMFS. Therefore, the Jacksonville District will have satisfied the project specific review requirements stipulated in the JAXBO and will have satisfied its obligation under the ESA for the above listed species and critical habitats within the NMFS purview.  Any permit authorization would be conditioned with a JAXBO compliance clause.

On September 22, 2022, the Corps executed a RAR report from the National Regulatory Viewer. The RAR did not indicate that the site is utilized by, or contains habitat critical to, any federally listed threatened or endangered species, other than those mentioned above. The Corps also reviewed geospatial data and other available information. The Corps has not received or discovered any information that the project site is utilized by, or contains habitat critical to, any federally listed, threatened, or endangered species, other than those mentioned above.

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 0.5  acre of open water utilized by various life stages of sand tiger shark, spiny lobster, and snapper grouper.  Our initial determination is that the proposed action would not have a substantial adverse impact on EFH or Federally managed fisheries in the Atlantic Highly Migratory Species area and the South Atlantic Fisheries Management Council. 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 the Florida State Plane coordinates provided by the applicant, the waterward edge of the proposed structure is approximately 70 feet away from the near bottom edge of the Intracoastal Waterway Federal channel. The Corps Regulatory Division is coordinating with the Corps Navigation Section, whereby the Navigation Section will identify the accurate distance.

SECTION 408: The applicant would 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 Jacksonville Permits Section, 701 San Marco Boulevard, Jacksonville, Florida 32202 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, Terri M. Mashour, in writing at the Jacksonville Permits Section, 701 San Marco Boulevard, Jacksonville, Florida 32202; by electronic mail at; or, by telephone at (904) 251-9179. 

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 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.