SAJ-2021-01800 (SP-CCK)

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: 

WATERWAY AND LOCATION:  The project would affect waters of the United States associated with the North Spreader Waterway (aka North Spreader Canal). The project site is located at 1720 NW 41st Ave, Cape Coral, FL 33993, in Section 36, Township 43 South, Range 22 East, Lee County, Florida.  Directions to the site are as follows: Take US Hwy 41 North to Diplomat Parkway, turn right onto Diplomat Pkwy for 8.8 miles, turn right onto Burnt Store Road North for 0.3 miles, left onto Gulfstream Pkwy for 1.3 miles, turn right onto NW 42nd Place for 0.1 mile, turn right onto NW 16th Terrace/NW 4Ist Ave., and then arrive at project site.

PROJECT PURPOSE:  Basic: The basic project purpose is water access for residential development.   

Overall: The overall project purpose is to excavate a new inset lagoon and two smaller inset basins to provide boat/water access for a proposed single-family development. 

EXISTING CONDITIONS: “North Cape Estates” encompasses 13.3 acres located in Cape Coral, FL. The site is located on the north side of Gulfstream Parkway, with the southwestern entry approximately 0.16 miles north of the intersection of Gulfstream Parkway and NW 42nd Place.  The project site is bordered by the North Spreader Waterway to the north, and residential development on all other sides.  The property has recently been cleared under a vegetation permit issued by the City of Cape Coral.  According to the National Wetland Inventory map, the area is classified as E2FO3P  - Estuarine, Intertidal, Forested, Broad-Leaved Evergreen and Irregularly Flooded.  The FLUCCS code list the site as 4110: Pine Flatwoods/Upland Forest.  The FWC lists the waterway as having mangrove swamp. Charlotte Harbor Preserve State Park lands are located immediately adjacent to the project site, located across the canal waterway. 

PROPOSED WORK:  The applicant seeks authorization to excavate a new inset lagoon connecting to the North Spreader Waterway and two (2) smaller insets for future boat access along the project's perimeter along the North Spreader Waterway to serve a new single-family development. The new inset lagoon and smaller insets will connect to the existing North Spreader Waterway. Work will be conducted within the Spreader Waterway to remove fill along the shoreline and dredge a portion of the waterway bottom to complete the connections. The dredged and excavated material will be distributed on the proposed single-family upland areas to be used for fill. No material will be discharged into the waterway.The project involves impacts to 6,650 square feet on shallow, euryhaline habitat (MHWL to -5 ft MLLW), and the creation of 6,993 square feet of this habitat within the created lagoon, resulting in a net creation on 343 square feet of habitat.  Fifteen linear feet of red mangrove swamp would be impacted.  Under separate action(s) (SAJ-2020-03377: 495 linear feet seawall construction) (SAJ-2020-03377: 485 linear feet of seawall construction) has previously been permitted at this project site.

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: “Turbidity curtains will be installed during all in-water work. BMP's will be in place for the life of the contract.  Impacts to mangroves (0.01 acres) will be offset by the purchase of saltwater, forested mitigation credits from the Little Pine Island Mitigation Bank.”

COMPENSATORY MITIGATION – The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:  “The proposed Project results in 0.01 acres of direct impacts to mangroves. Impacts have occurred as a result of an exotic vegetation removal event. The 15 LF of mangroves impacted were sparse in nature. Direct impacts will be offset by the purchase of mitigation credits at the Little Pine Island Mitigation Bank (LPIMB). A purchase agreement has been provided.”

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 Corps has performed an initial review of the application, the U.S. Fish and Wildlife Service (USFWS) Information for Planning and Consultation (IPaC), National Marine Fisheries Service (NMFS) Southeast Regional Office Section 7 Mapper, and the NMFS Critical Habitat Mapper to determine if any threatened, endangered, proposed, or candidate species, or proposed or final designated critical habitat may occur within the boundary of the proposed project.  Pursuant to Section 7 ESA, any required consultation with the Service(s) will be conducted in accordance with 50 CFR part 402. The Corps is the lead Federal agency for ESA consultation for the proposed action.

This notice serves as a request to U.S. Fish and Wildlife Service and National Marine Fisheries Service for any additional information on whether any listed or proposed to be listed endangered or threatened species or critical habitat may be present in the area which would be affected by the proposed activity.  The Corps will request U.S. Fish and Wildlife concurrence with the following determinations pursuant to Section 7 of the Endangered Species Act:

Aboriginal Prickly-apple (Harrisia aboriginum): The Corps has made the determination of no effect for the species due to lack of suitable habitat in the project area (Shell mounds, coastal strands, upland fringes of mangrove swamps, coastal berms and maritime hammocks.) The applicant provided a protected species survey and this species was not observed. 

American crocodile (Crocodylus acutus); Due to the lack of suitable nesting habitat, and the unlikely occurrence of the species within the project area during construction, the Corps has determined that the proposed activity will have no effect on the American crocodile, and no further consultation is necessary.

Beautiful pawpaw (Deeringothamnus pulchellus): The Corps has made the determination of no effect for the species due to lack of suitable habitat in the project area (grassy flatwoods, road edges, xeric, mesic, and hydric flatwoods and pinelands in poorly drained soils).  The applicant provided a protected species survey and this species was not observed. 

Crested caracara (Caracara plancus audubonii): The project is located within the species consultation area. The project does not include the species nesting or foraging habitat which consists of large expanses of pastures, grasslands, or prairies dotted with numerous shallow ponds and sloughs and single or small clumps of live oaks, cabbage palms, and cypress, therefore the Corps has determined that the project will have no effect on the species. The applicant provided a protected species survey and this species was not observed. 

Eastern Black rail (Laterallus jamaicensis ssp. jamaicensis): The project is located within the species consultation area. Black rails require dense vegetative cover that allows movement underneath the canopy.  Along portions of the Gulf Coast, eastern black rails can be found in higher elevation wetland zones with some shrubby vegetation. Impounded and un-impounded intermediate marshes provide habitat for the subspecies. Inland coastal prairies and associated wetlands may also provide habitat for the bird. The project area may contain some of this type of habitat however, the applicant provided a protected species survey and this species was not observed; therefore, the Corps has determined that the project will have no effect on the species.

Eastern Indigo Snake (Drymarchon couperi): Based on the Eastern Indigo Snake Effect Determination Key (dated August 1, 2017), the Corps determination sequence resulted in A > B > C > “NLAA”. The Corps determined the proposed project is “Not Likely to Adversely Affect” and no further consultation is required.

Wood Stork (Mycteria americana): The May 18, 2010, effect determination key for the wood stork in south Florida states that suitable foraging habitat includes a variety of emergent wetlands and shallow open-water areas, including narrow tidal creeks and shallow tidal pools in estuarine areas. The project location is not located within 2,500 feet of an active wood stork nesting colony.  Based on the consultation key, the Corps determined that the project will not affect suitable foraging habitat for the wood stork, and using the key, determined that the proposed project will have no effect (A). No further consultation is necessary.

Everglades Snail Kite (Rostrhamus sociabilis plumbeus): The project is located within the species consultation area. The species regularly occur in lake shallows along the shores and islands of many major lakes, including Lakes Okeechobee, Kissimmee, Tohopekaliga (Toho) and East Toho. They also regularly occur in the expansive marshes of southern Florida such as Water Conservation Areas 1, 2, and 3, Everglades National Park, the upper St. John’s River marshes, and Grassy Waters Preserve. Kite foraging habitat consists of relatively shallow wetland vegetation, either within extensive marsh systems, or in lake littoral zones. The project is not located in any of these types of habitats; therefore, the Corps has determined that the project will have no effect on the species. The applicant provided a protected species survey and this species was not observed. 

Florida Bonneted Bat (Eumops floridanus): The mangroves in the impact area are not “large” (33’ tall, 8” diameter at breast height) trees with cavity elevations higher than 16’ and various features such as hollows or loose bark. There are no artificial structures in the impact area. The areas above the mangroves and the tidal basin could provide some foraging habitat, other than being a source of drinking water. The protected species survey provided by the applicant specifically focused on tree cavities and potential bat roosting areas, and did not locate any on site.  Using the October 22, 2019, consultation key for the bonneted bat, the Corps determined that the proposed project would have no effect (1a>2b>13b) on the bonneted bat. No further consultation is necessary.

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-B-No effect since the project would have no increase and/or change in vehicle traffic patterns or other identifiable effects to panthers or their habitat.  No further consultation is necessary.

Miami Blue Butterfly (Cyclargus thomasi bethunebakeri): The project is in the consultation area for the Miami Blue Butterfly.  The Miami blue butterfly inhabits tropical hardwood hammocks, tropical pine rocklands, and beachside scrub where it uses balloon vine and yellow nickerbean plants as its main larval hosts.  The project is not located in any of these types of habitats, therefore the Corps has determined that the project will have no effect on the species.  The applicant provided a protected species survey and this species was not observed. 

Rufa red knot (Calidris canutus rufa): The project is in the consultation area for the Rufa red knot. Red knots utilize coastal marine and estuarine habitats with large areas of exposed intertidal sediments. Migration and wintering habitats include both high-energy ocean- or bay-front areas, as well as tidal flats in more sheltered bays and lagoons. Preferred wintering and migration habitats are muddy or sandy coastal areas, specifically, bays and estuaries, tidal flats, and unimproved tidal inlets. The project is not located in any of these types of habitats, therefore the Corps has determined that the project will have no effect on the species. The applicant provided a protected species survey and this species was not observed. 

West Indian Manatee (Trichechus manatus):  Manatees could potentially access the project area in its current condition and the project site is located within manatee critical habitat.  The applicant has provided a Manatee Protection Plan. The April 2013 consultation key for the manatee was utilized and it advised formal consultation with USFWS due to: Creation or expansion of canals, basins, or other artificial shoreline, or the connection of such features to navigable waters of the U.S. (except for a single-family dock) may have adverse effects on the endangered West Indian manatee.  This key does not cover projects which may adversely affect the manatee.  Therefore, formal consultation for potential adverse impacts will be initiated with the USFWS.

Gulf sturgeon, Smalltooth sawfish, and 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, 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 CH. For this application, the Corps conducted a project specific review to ensure that all of the PDCs were met.

The Corps has determined that the lagoon and islets excavation may affect but is not likely to adversely affect swimming sea turtles, smalltooth sawfish, and gulf sturgeon. In accordance with the project-specific review process established in the JAXBO, the Corps will e-mail PDC checklists, certification that the activity meets the applicable PDCs, and supporting documentation for the proposed activity to nmfs.ser.statewideprogrammatic@noaa.gov and jaxbo@usace.army.mil. After sending that e-mail, the Jacksonville District will have satisfied the project-specific review requirements stipulated in the JAXBO and satisfied its obligation under the ESA for the above-listed species and critical habitats within the NMFS purview.

ESSENTIAL FISH HABITAT (EFH):  This notice initiates consultation on EFH as required by the Magnuson-Stevens Fishery Conservation and Management Act of 1996.  The proposal would impact 0.01 acre (15 LF) of mangroves. Our initial determination is that the proposed action would not have a substantial adverse impact on EFH or Federally managed fisheries within the North Spreader Waterway. 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, 332 Minnesota Street, Suite E1500, St. Paul, MN, 55101 within 30 days from the date of this notice and reference this public notice number and project manager. 

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, Caree Kovacevich at 651-290-5329 or Caree.C.Kovacevich@usace.army.mil.

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 was issued from the South Florida Water Management District (SFWMD) on September 30, 2022 (Permit No. 36-107597-P).

COASTAL ZONE MANAGEMENT CONSISTENCY: In Florida, the State approval constitutes compliance with the approved 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.