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: Lee County Division of Natural Resources
1500 Monroe Street, Third Floor
Fort Myers, FL 33901
WATERWAY AND LOCATION: The project would affect waters of the United States associated with the Orange River. The project site is located at 3741 Ellis Road, Section 35, Township 43 South, Range 25 East, in Fort Myers, Lee County, Florida.
Directions to the site are as follows: From the Fort Myers Regulatory office, take Colonial Boulevard east to I-75; take I-75 north to State Road 80; take SR 80 east to Orange River Blvd.; take Orange River Blvd. to Ellis Road; take Ellis Rd. to project site
APPROXIMATE CENTRAL COORDINATES:
Latitude 26.691259
Longitude -81.776674
PROJECT PURPOSE: Basic: improve drainage
Overall: restore the cross-section of the Orange River and realign an existing drainage ditch, including a new outfall structure
EXISTING CONDITIONS: The proposed dredging area within the Orange River includes approximately 0.3 acre of wetland (WL-4 in the attached drawings) vegetated by willow and elderberry, and 0.42 acre of open water (with no submerged aquatic vegetation, mangroves, or other aquatic resources). The 0.14-acre existing ditch to be filled (WL-1) is predominantly vegetated by Brazilian pepper, with some ground cover; the applicant states that approximately 0.08 acre of the ditch is tidal, and 0.06 acre is non-tidal. The 0.16 acre of wetland proposed to be impacted by the new ditch alignment (WL-3) is also predominantly Brazilian pepper. The 280-square foot WL-2 is an existing ditch. There are mangroves along the shoreline, however the applicant states that the project will not impact any mangroves, including at the site of the proposed outfall structure. The remainder of the project area is uplands, according to the applicant, with residential and agricultural (equestrian) land uses.
PROPOSED WORK: The applicant seeks authorization to:
a. Dredge 3400 cubic yards of material from 31,500 square feet of the Orange River, to a depth of -5’ Mean Low Water. The dredged material will be offloaded and temporarily stored on site, and then hauled away to an upland disposal site.
b. Fill 0.14 acre of an existing ditch/wetland, including 0.08 acre of tidal and 0.06 acre of non-tidal area, as part of a drainage ditch realignment.
c. Fill 280 square feet of an existing ditch for a culvert crossing to provide access to a drainage easement.
d. Fill 0.16 acre of a predominantly Brazilian pepper freshwater wetland for temporary storage of dredged material, and then excavate that area as part of the drainage ditch realignment.
e. Construct a new outfall structure for the realigned drainage ditch on the shoreline of the Orange River.
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 states that the proposed impacts are the minimum necessary to achieve the project purpose and satisfy the need for the project. The applicant will use best management practices as needed. The applicant further states that the proposed activities will not impact any mangroves.
COMPENSATORY MITIGATION – The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:
The applicant states that the overall project will result in a loss of 0.1 unit of wetland function. As compensatory mitigation, the applicant states that the upland portion of the new drainage ditch will provide 0.045 unit of wetland function, and that they will use the Section 33 Regional Mitigation Site (SAJ-2007-05404) for the remaining 0.055 unit needed. The Corps has not yet evaluated this compensatory mitigation proposal.
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 critical habitat for the smalltooth sawfish, within critical habitat and a Warm Water Aggregation Area for the West Indian manatee, within the core foraging area of at least one wood stork nesting colony, and within the consultation areas for red-cockaded woodpecker, Florida bonneted bat, Florida scrub jay, Audubon’s crested caracara, and American crocodile.
Red-cockaded woodpecker, bonneted bat, scrub jay, caracara, and crocodile: Based on the existing site conditions, the areas of proposed impact, and the types of activities proposed, the Corps has determined that the project would have no effect on the red-cockaded woodpecker, bonneted bat, scrub jay, caracara, and crocodile. No further consultation is necessary for these species.
Wood stork: The Corps considered less than 0.5 acre of the impact areas 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.
Manatee: The applicant proposes work in a Warm Water Aggregation Area. Use of the April 2013 effect determination key for the manatee resulted in an effect determination of ‘may affect’ (A-B). 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; 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 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 due to the proposed placement of riprap between the Mean High Water Line and -3’ below the Mean Low Lower Water elevation (PDC A1.8.1) and the proposed dredging (PDC A3). The Corps has determined the proposal may affect the smalltooth sawfish or its designated critical habitat. The Corps will request initiation of formal consultation for the sawfish 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. [INCLUDE IF APPROPRIATE] The proposal would impact approximately 0.72 acre of estuarine habitat utilized by various life stages of commercially and recreationally 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. 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: The proposed project is not located in the vicinity of a federal navigation channel.
SECTION 408: The applicant will require permission under Section 14 of the Rivers and Harbors Act (33 USC 408) because the activity, in whole or in part, will 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 33610 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, John Fellows, by electronic mail at john.p.fellows@usace.army.mil; by telephone at (813) 769-7070, or in writing at the Tampa Permits Section, 10117 Princess Palm Avenue, Suite 120, Tampa, FL 33610.
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.
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 (FDEP). The project is being reviewed under FDEP application no. 0414240-001-EI.
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.