SAJ-2024-00967 (SP-SJF)

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) as described below:

WATERWAY AND LOCATION: The project would affect waters of the United States associated with the Imperial River.  The 6,687.50± acre project site is located on the north and south sides of Corkscrew Road and south of State Road 82, in Section 35; Township 45 South; Range 27 East and Sections 2, 3, 10, 11, 14, 15, 23-26, and 34-36; Township 46 South; Range 27 East; Lee County, Florida.

Directions to the site are as follows: Take I-75 to Corkscrew Road (Exit 123).  Exit east onto Corkscrew Road.  Travel approximately 12.6 miles east, the project site is on the north and south side of Corkscrew Road, approximately 0.8 mile before Corkscrew Road bends to the north.

PROJECT PURPOSE:  Basic:  To construct a mixed-use development.

Overall:  To construct a mixed-use development in southeastern Lee County, Florida. 

PROJECT HISTORY: The Corps issued an approved wetland Jurisdictional Determination (No. SAJ-2008-01734 (JD-LBD)) for the OCP Mine portion of the Project on March 22, 2011, which expired on March 22, 2016. The approved wetland JD identified 1,098.13± acres of Corps jurisdictional wetlands, 13.95± acres of Corps isolated wetlands, and 7.76± acres of Waters of the U.S. on the OCP Mine site.

EXISTING CONDITIONS:  The majority of the project site currently supports citrus grove and other agricultural operations, while the remainder of the site contains native wetland and upland habitat types within varying amounts of disturbance and exotic vegetation including, but not limited to, melaleuca (Melaleuca quinquenervia), torpedograss (Panicum repens), West Indian marsh grass (Hymenachne amplexicaulis), and Brazilian pepper (Schinus terebinthifolia). An extensive network of ditches and berms have been constructed on the property to accommodate past and present agricultural uses.  The ditches and berms have significantly altered the hydrology of the on-site wetlands and the historic flow of water from north to south across the site.

A total of 94 vegetative and land cover types were identified within the Project site. The dominant land uses on the property are citrus grove, row crop/sod farm, and cypress, which together occupy 5,418.22± acres, or approximately 81 percent of the site. Ditches, reservoirs, berms, borrow areas, cow ponds, and spoil areas associated with the agricultural uses occupy 494.50± acres, or approximately 7.4 percent of the site. The site contains disturbed native wetland systems, including mixed wetland hardwoods, hydric cabbage palm, hardwood-conifer mixed, hydric pine, cypress, cypress/pine/cabbage palm, freshwater marsh, and wet prairie. The site also contains non-native wetland habitats, including low pasture, hydric melaleuca, hydric Brazilian pepper, and hydric disturbed land. The on-site wetland habitats have been disturbed by agricultural activities (i.e., citrus groves, row crops, and cattle grazing), and exotic vegetation infestation.

The project site contains 1,192.61± acres of Corps jurisdictional wetlands which constitutes approximately 17.8 percent of the property.  In addition, the site contains 310± acres of Corps jurisdictional “waters of the U.S.” (Waters) which constitutes approximately 4.6 percent of the property.  The Waters features include Drainage Canal/Ditch; Reservoirs; and Borrow Area. 

PROPOSED WORK:  The applicant seeks authorization to construct a mixed-use development with associated infrastructure, amenities, and surface water management system, and preserve, enhance, and restore 3,293.89± acres of indigenous vegetation communities. The mixed-use development will consist of residential pods with commercial uses abutting Corkscrew Road and State Road 82. The proposed project will involve the discharge of approx.18,117 cubic yards of fill material into 12.87± acres of Corps jurisdictional wetlands and approx.164,883 cubic yards of fill material into 128.32± acres of waters of the U.S.  The proposed project will also involve the excavation of 43,000± cubic yards of material from 1.65 acres of wetlands and 722,000± cubic yards of material from 26.29 acres or waters of the U.S.

The project’s conservation area totals 3,293.89± acres and includes 1,179.74± acres, or approximately 99 percent, of the project’s existing wetlands, 1,692.15± acres of existing uplands and waters, and 422± acres of wetland flow-way that will be restored from existing agricultural lands. 

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 considered several design alternatives for the project to minimize discharge of dredge and fill material into regulated waters. The site plan was designed to utilize existing agricultural fields, mined lands, and low-quality wetland habitats for the planned development and avoid direct and secondary impacts to on-site high quality natural wetland habitats and the continuum of natural upland communities that exist between them. The proposed project will result in 12.87± acres of wetland impacts, the majority of which have been historically disturbed by agricultural operations, ditching, and exotic vegetation infestation. The project’s site plan has been designed to avoid and minimize wetland impacts to the greatest extent practicable by concentrating the majority of the proposed development within the existing agricultural fields. Impacts to the man-made Waters are necessary to avoid and minimize wetland impacts throughout the project site.

COMPENSATORY MITIGATION: The applicant has provided the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:  In order to offset the loss of wetland functions, the applicant has purchased 4.57 freshwater forested wetland credits from Corkscrew Regional Mitigation Bank (CRMB) to offset the functional loss associated with the proposed wetland impacts. 

CULTURAL RESOURCES: The applicant provided previous cultural resource surveys conducted on the project with the Florida Department of State Division of Historical Resources (DHR), and DHR concurred that the project will have no effect on historic properties listed, or eligible for listing, in the National Register of Historic Places, or otherwise of historical, archaeological, or architectural value.  The Corps is not aware of any known historic properties within the permit area.  By copy of this public notice, the Corps is providing information for review.  Our final determination relative to historic resource impacts is subject to review by and coordination with the State Historic Preservation Officer and those federally recognized tribes with concerns in Florida and the Permit Area.  

ENDANGERED SPECIES: The Corps will request U.S. Fish and Wildlife concurrence with the following determinations pursuant to Section 7 of the Endangered Species Act:  Eastern Indigo Snake: The Corps has made the determination of may affect for the Eastern indigo snake (Drymarchon corais couperi). Based on the Eastern Indigo Snake Effect Determination Key (dated August 1, 2017), the Corps determination sequence resulted in A > B > C “may affect”. The Corps determined the proposed project “may affect” the eastern indigo snake and will request formal consultation on this species from the FWS via a separate letter.

Wood Stork: The Corps has made the determination of may affect, but is not likely to adversely affect (MANLAA) for the wood stork (Mycteria americana). The Corps has concurrence with this determination pursuant to U.S. Fish and Wildlife Service’s May 18, 2010, South Florida Programmatic Concurrence Letter (Wood Stork Key). Use of the Wood Stork Key resulted in the following sequential determination: A-B-C-E-NLAA. Although the project will directly impact potential wood stork foraging habitat, replacement compensation is proposed in accordance with Clean Water Act 404(b)(1) guidelines; the habitat compensation replaces foraging value consisting of wetland enhancement and restoration matching the hydroperiod of wetlands affected; and replacement compensation provides foraging value similar to, or higher than, that of impacted wetlands; therefore, Corps determined the project “may affect, but is not likely to adversely affect” (NLAA), the wood stork and will request concurrence from the FWS, via a separate letter.

Red-Cockaded Woodpecker: The project site is not located within the U.S. Fish and Wildlife Service’s red-cockaded woodpecker (RCW) (Picoides borealis) consultation area. According to the Florida Fish and Wildlife Conservation Commission database of documented occurrences of listed species, there are no documented red-cockaded woodpecker colonies within the project’s vicinity. No RCWs or cavities in live pine trees have been documented on-site during protected species surveys and other fieldwork conducted on the project site by the applicant. Additionally, high levels of exotic vegetation and dense native vegetation in the understory generally preclude much of the existing habitat from supporting RCWs. Suitable RCW habitat on the Project site such as pine and hydric pine with low exotic levels will be preserved and enhanced. The Corps’ preliminary determination is that the proposal will have “no effect” on the RCW and will request concurrence from the FWS via a separate letter.

Everglades Snail Kite: Everglades snail kite (Rostrhamus sociabilis plumbeus) have been documented on-site during a protected species survey conducted by the applicant. Critical habitat has been designated for the Everglade snail kite. The project is not located adjacent to or within the designated critical habitat and will have no impact on designated critical habitat for the Everglade snail kite, although it does lie within the western extent of the species’ consultation area. The project will provide a net gain of potential snail kite foraging and nesting habitat by enhancing and restoring existing wetlands through exotic vegetation removal and installation of supplemental plantings. In addition, a network of wetland flow-ways will be restored from existing agricultural lands, which will provide extensive foraging habitat for the Everglade snail kite. The Corps’ preliminary determination is that the proposal will have “no effect” on the Everglades snail kite and will request concurrence from the FWS via a separate letter.

Crested Caracara: Crested caracara (Polyborus plancus audubonii) have been documented on-site during a protected species survey conducted by the applicant.  Additionally, an active crested caracara nest was documented by the applicant in the northern portion of the project during the 2021-2022 nesting season. Given the documented crested caracara use and nesting activity on the project, the proposed federal action is Likely to Adversely Affect (LAA) the crested caracara. The Corps will request formal consultation on this species from the US Fish and Wildlife Service via a separate letter.

Florida Grasshopper Sparrow: The project site does not contain dry prairie habitats that could potentially be used by Florida grasshopper sparrows (Ammodramus savannarum floridanus). The project site is located on the edge of the U.S. Fish and Wildlife Service’s Florida grasshopper sparrow consultation area; however, no grasshopper sparrows were documented on the project during fieldwork. Therefore, the project will have No Effect on the Florida grasshopper sparrow. The Corps’ preliminary determination is that the proposal will have “no effect” on the Florida grasshopper sparrow and will request concurrence from the FWS via a separate letter.

Florida Scrub Jay:  The Project occurs within a FWS Consultation Area for the Florida scrub jay (Aphelocoma coerulescens). The Florida scrub jay lives only in scrub and scrubby flatwoods habitats found on nearly pure, excessively well-drained, sandy soils. The project site does not contain suitable Florida scrub jay habitat. Surveys conducted by the applicant found no use of the project site by Florida scrub jay. The Corps’ preliminary determination is that the proposal will have “no effect” on the scrub jay and will request concurrence from the FWS via a separate letter.

Florida Bonneted Bat: Florida bonneted bats (Eumops floridanus) have been documented on-site during an acoustic survey conducted by the applicant.  The U.S. Fish and Wildlife Service’s October 2019 Florida Bonneted Bat Effect Determination Key was used to conduct a sequential effect determination.  Use of the key resulted in the following determination for the Florida bonneted bat: 1a > 2a > 3b >6b>7b>10b>12a “Likely to Adversely Affect (LAA).”  The Corps will request formal consultation on this species from the US Fish and Wildlife Service via a separate letter.

Florida Panther: The Corps has completed an evaluation of the impacts the work may have on the Florida Panther (Puma concolor coryi). The Corps utilized The Corps of Engineers, Jacksonville District, U.S. Fish and Wildlife Service, South Florida Ecological Services Field Office and State of Florida Panther Effect Determination Key, February 19, 2007 (Panther Key). Use of the Panther Key resulted in the following sequential determination: A-C-May Affect since the project is located within the Florida panther focus area and is greater than one acre.  The Corps will request formal consultation on this species from the US Fish and Wildlife Service via a separate letter.

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 northern portion of the project’s jurisdictional line was previously verified by Corps personnel.

AUTHORIZATION FROM OTHER AGENCIES:  South Florida Water Management District issued Conceptual ERP No. 36-109267-P (Application No. 230607-38984) for the property on August 30, 2023, which provides water quality certification for the site.

Water Quality Certification may be required from the Florida Department of Environmental Protection and/or one of the state Water Management Districts.

COMMENTS regarding the potential authorization of the work proposed should be submitted in writing to the attention of District Engineer through the 1520 Royal Palm Square, Suite 310, Ft. Myers, Florida 33919 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, Stephen J. Fleming, in writing at the Fort Myers Permits Section, 1520 Royal Palm Square Blvd., Fort Myers, Florida, 33919; by electronic mail at Stephen.J.Fleming@usace.army.mil, or by telephone at (239)334-1975 ext. 0003. 

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.  A permit will be granted unless its issuance is found to be contrary to the public interest.

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.

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.