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) described below:
APPLICANT: Blaz Kovacic
JX Palm Coast Land LLC
201 E Las Olas Boulevard, Suite 1900
Fort Lauderdale, Florida 33301
WATERWAY AND LOCATION: The project would affect waters of the United States associated with Graham Swamp. The project is located on the east side of Old Kings Road and north of Moody Boulevard (State Road 100) between Bunnel and Flagler Beach in Sections 39 and 40, Township 12 South, Range 31 East, in Flagler County, Florida.
Directions to the site are as follows: The project site is located on the east side of Old Kings Road and north of Moody Boulevard (State Road 100), in Flagler County, Florida.
APPROXIMATE CENTRAL COORDINATES: Latitude 29.487990°
Longitude –81.179687°
PROJECT PURPOSE:
Basic: To construct a residential development.
Overall: To construct a residential development in Eastern Flagler County
EXISTING CONDITIONS: The project area has environmental resources and land uses that have been characterized pursuant to the Florida Department of Transportation publication Florida Land Use, Cover and Forms Classification System (FLUCFCS), as described below.
Hardwood - Conifer Mixed (FLUCFCS 434) (225.57 acres) – Vegetation within the canopy of this community includes slash pine (Pinus elliottii), live oak (Quercus virginiana), loblolly pine (P. taeda), water oak (Q. nigra), laurel oak (Q. laurifolia), loblolly bay (Gordonia lasianthus), sweetgum (Liquidambar styraciflua), red maple (Acer rubrum), wax myrtle (Morella cerifera), and dahoon holly (Ilex cassine). Vegetation within the subcanopy and groundcover stratums contain saw palmetto (Serenoa repens), gallberry (I. glabra), broomsedge (Andropogon virginicus), cinnamon fern (Osmundastrum cinnamomeum), and bracken fern (Pteridium aquilinum).
Borrow Pits (FLUCFCS 742) (35.60 acres)– The surface water feature in the southern portion of the site was excavated in approximately 1970 as a coquina rock and shell quarry pit. Mining activities have not been carried out for some time, therefore current classification for this feature is borrow pit, which is used for artificially excavated lakes. The edges of the lake are vegetated with a variety of emergent vegetation.
Wetland Forested Mixed (FLUCFCS 630) (211.45 acres) – On-site wetlands are vegetated with water oak, bald cypress (Taxodium distichum), and sweetgum. Groundcover in this community includes fetterbush (Lyonia lucida), dahoon holly, gallberry, wax myrtle, saw palmetto, Virginia chainfern (Woodwardia virginica), and cinnamon fern.
Project History
A previous Department of the Army (DA) Permit was issued on October 1, 2007, for the subject review area. The previous DA Permit authorized the discharge of fill material into 4.77 acres of wetlands for the construction of a commercial and multi-family and single-family residential development. In addition, DA Permit modification was issued on June 3, 2010, which authorized additional wetland impacts. The previously authorized wetland impacts and development did not occur. The subject project review area is currently undeveloped.
PROPOSED WORK: The applicant seeks authorization to discharge fill material into 10.44-acres of freshwater, forested wetlands and 13.39 acres of permanent surface water impacts and 1.13 acres of temporary surface water impacts to facilitate the construction of a residential development with associated facilities and surface water management system. An Approved Jurisdictional Determination has been requested from the Corps. The applicant proposes to construct the proposed project in three (3) phases as described below:
Phase 1 will include impacts to approximately 8.4 acres of wetlands.. In addition, this phase will include impacts to 35.60 acres of a coquina borrow-pit pond. .
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Phase 2 will include impacts to approximately 0.21 acre of wetlands.
Phase 3 will include impacts to approximately 1.83 acres of wetlands..
The applicant is requesting a 5-year permit.
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 designed the project to maximize the use of on-site uplands while reducing wetland impacts to the greatest extent practicable. Several design iterations were created during the planning efforts for the residential neighborhood. Several areas of proposed wetland impact were removed from the currently proposed site plan in order to preserve the higher-quality wetland areas and to meet City of Palm Coast requirements. In general, the larger contiguous wetland on the western project boundary is “optimal” quality with old growth trees, relatively natural hydrologic conditions, and sufficient connectivity to serve as a wildlife corridor for regional wildlife, the applicant avoided most wetland impacts to the optimal area. Several areas along the periphery of this wetland system have been historically altered through timbering, ditching, grading, or general site maintenance activities in the past. While the majority of these areas continue to have suitable vegetation, in most cases, hydrologic conditions have been altered. These areas are classified as “moderate” quality and impacts to these wetlands were proposed where they could divert impacts from higher quality wetlands. In addition, the applicant has avoided approximately 200 acres of wetlands that are higher in quality and are adjacent to larger off-site wetland systems. These wetlands will be preserved under conservation easements and used as mitigation for all three phases of the development during the permitting process with SJRWMD.
COMPENSATORY MITIGATION – The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:
By limiting wetland impacts to lower quality, previously altered on-site wetland, the applicant proposes to purchase regionally significant mitigation bank credits from an in-basin mitigation bank to off-set the proposed wetland impacts. Utilization of regionally significant mitigation that provides regional ecological value and that provides greater long-term ecological value than the area of wetland to be adversely affected.
The applicant proposes to purchase 6.24 credits from a Corps approved wetland 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.
ENDANGERED SPECIES:
a. Wood Stork (Mycteria americana): The project site is approximately 17.5 miles from the Lake Disston Wood Stork Colony; and is not within the Core Foraging Area of this colony; however, the Corps evaluated potential effects to this species. The work proposed may affect, but is not likely to adversely affect suitable foraging habitat (SFH). In consideration of this information, the Corps utilized 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, to determine potential effects upon this species. Use of this key resulted in the sequence A-B-C-D may affect, but is not likely to adversely affect. The U.S. Fish and Wildlife Service (FWS) previously indicated that they concur with determinations of may affect, not likely to adversely affect based on the key for Wood Storks; and, that no additional consultation is necessary.
b. Eastern indigo snake (Drymarchon corais couperi): The proposed work iswould occur in uplands; therefore, potential impacts to the eastern indigo snake were evaluated using Eastern Indigo Snake Programmatic Determination Key 2013. Use of this key resulted in the sequence A-B-C-D-E may affect, but is not likely to adversely affect, as the applicant has agreed to implement the Standard Protection Measures for the Eastern Indigo Snake, August 12, 2013. The FWS has indicated that they concur with determinations of may affect, not likely to adversely affect based on the key for eastern indigo snakes; and, that no additional consultation is necessary.
c. Tricolored Bat (Perimyotis subflavus): The species is listed as an IPAC species in the Duval County range, per U.S. Fish and Wildlife Service (USFWS), and there is tricolored bat habitat within the project site. Therefore, the Corps evaluated potential effects to this species. The tricolored bat is one of the smallest bats native to North America. The once common species is wide ranging across the eastern and central United States and portions of southern Canada, Mexico and Central America. During the winter, tricolored bats are found in caves and mines, although in the southern United States, where caves are sparse, tricolored bats are often found roosting in road-associated culverts. During the spring, summer and fall, tricolored bats are found in forested habitats where they roost in trees, primarily among leaves. During the spring, summer and fall - collectively referred to as the non-hibernating seasons - tricolored bats primarily roost among live and dead leaf clusters of live or recently dead deciduous hardwood trees. In the southern and northern portions of the range, tricolored bats will also roost in Spanish moss (Tillandsia usneoides) and Usnea trichodea lichen, respectively. In addition, tricolored bats have been observed roosting during summer among pine needles, eastern red cedar (Juniperus virginiana), within artificial roosts like barns, beneath porch roofs, bridges, concrete bunkers, and rarely within caves. Female tricolored bats exhibit high site fidelity, returning year after year to the same summer roosting locations. Female tricolored bats form maternity colonies and switch roost trees regularly. Males roost singly. During the winter, tricolored bats hibernate - which means that they reduce their metabolic rates, body temperatures and heart rate - in caves and mines; although, in the southern United States, where caves are sparse, tricolored bats often hibernate in road-associated culverts, as well as sometimes in tree cavities and abandoned water wells. Tricolored bats exhibit high site fidelity with many individuals returning year after year to the same hibernaculum. The project site hosts habitat conducive to host tricolored bats. The proposed project would impact 8.69 acres of wetlands proposed to be jurisdictional as well as additional wetland area proposed to be non-jurisdictional as well as forested upland areas. The proposed project would avoid impacts to approximately 200 acres of wetlands. Additionally, if the tricolored bat were to be present, the species is mobile and it could move to other forested habitat on site or near the project site. Therefore, the Corps has determined the proposed work may affect, but would not be likely to adversely affect the tricolored bat. Because there is no programmatic agreement or Standard Local Operating Procedures for Endangered Species (SLOPES), a may affect, not likely to adversely affect determination by the Corps could require a conference opinion coordination with the USFWS. However, the species is not listed at this time; therefore, the Corps is not required to open coordination. The applicant’s environmental consultant stated that work would begin immediately following any permit authorization from the Corps and the state. Therefore, the work could begin prior to the species being officially designated as listed and the Corps has determined that a conference opinion would not be conducted as the work would occur and be completed prior to the species being designated. In the event that work does not occur prior to the species being listed, the applicant would be required to conduct their own Section 10 consultation with USFWS for the tricolored bat. Any authorization would be conditioned to include language that requires Section 10 consultation in the event that the work is not completed prior to designation.
d. Florida Scrub Jay (Aphelocoma coerulescens): The project site is approximately 4.6 miles from the nearest identified nest or cluster location for Florida Scrub Jay (Aphelocoma coerulescens); and, within the consultation area identified by the Corps and the FWS for this species. Therefore, this species may utilize the project site.
There is no designated critical habitat for the Florida Scrub Jay listed in the federal register (52 FR 20715-20719). However, information from the FWS indicates that the Florida Scrub Jay has extremely specific habitat requirements. It is endemic to peninsular Florida’s ancient dune ecosystem or scrubs, which occur on well drained to excessively well drained sandy soils. Relict oak-dominated scrub, or xeric oak scrub, is essential habitat to the Florida Scrub Jay. Optimal habitat incorporates four species of stunted, low growing oaks [sand live oak (Quercus geminata), Chapman oak (Quercus chapmanii), myrtle oak (Quercus myrtifolia), and scrub oak (Quercus inopina)] that are 1-3 meters high, interspersed with 10 to 50 percent non-vegetated sandy openings, with a sand pine (Pinus clausa) canopy of less than 20 percent. Therefore, Florida Jay habitat is absent from the project site. It is likely that this species only opportunistically forages within forested areas in the vicinity of the project site, which the project would not preclude. The nearest identified Florida Scrub Jay colony is approximately 4.6 miles south of the project site. In consideration of the lack of appropriate habitat at the site, the local abundance of foraging habitat, and the distance to the nearest colony, the Corps determined that the project would have no effect upon this species.
e. On June 4, 2024, the Corps executed an RST report. The RST indicated that the Information for Planning and Consultation (IPAC) species that are found within Flagler County could include the Eastern Black rail (Laterallus jamaicensis ssp. jamaicensis). . This species’ ranges do not include this area or habitat to support this species is not found on site. Therefore, routes to effects for these species were not reviewed. The RST 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 8.96 acres of freshwater forested wetlands inland of EFH utilized by various life stages of shrimp 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 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.
Navigation: The proposed activity is not located in the vicinity of a federal navigation 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 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 32207 within 21 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, Tracy Sanders, in writing at the Jacksonville Permits Section, 701 San Marco Boulevard, Jacksonville, Florida 32207; by electronic mail at Tracy.d.sanders@usace.army.mil or by telephone at (904) 232-1171.
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 St. Johns River Water Management District.
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.