SAJ-2024-00908 (SP-MAO)

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 Estero River.  The 1,184± acre project site is located on the south side of Daniels Parkway between the Florida Power & Light (FPL) easement and State Road 82, in Sections 8, 9, 16, 17, and 21, Township 45 South, Range 26 East, Lee County, Florida.

Directions to the site are as follows:  From Interstate 75, take Exit 131 Daniels Parkway east approximately five miles and the project site is located on the south side of Daniels Parkway.

PROJECT PURPOSE:  Basic:  Construction of a residential development.

Overall:  Construction of an economically viable residential development in central Lee County.

EXISTING CONDITIONS:  The majority of the project site is currently used for cattle grazing 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), Brazilian pepper (Schinus terebinthifolia) torpedograss (Panicum repens), West Indian marsh grass (Hymenachne amplexicaulis), and Wright’s nutrush (Scleria lacustris). 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 50 vegetative and land cover types (i.e., Florida Land Use Cover and Forms Classification System (FLUCFCS) codes) were identified within the project site. The dominant land uses on the property are improved pasture and hydric melaleuca, which together occupy 566.34± acres or 47.8 percent of the site. Ditches, berms, a cow pond, and disturbed land associated with the agricultural uses occupy 86.59± acres or approximately 7.3 percent of the site. The site contains disturbed native wetland systems, including mixed wetland hardwoods, hydric pine, and freshwater marsh. The site also contains non-native wetland habitats, including low pasture, hydric melaleuca, and hydric disturbed land. The on-site wetland habitats have been disturbed by ditching, cattle grazing activities, and exotic vegetation infestation.

The project site contains 532.51± acres of wetlands which constitutes approximately 45 percent of the project.  The prominent wetland features are Low Pasture, Hydric (FLUCFCS Code 262); Melaleuca, Hydric (FLUCFCS Code 4241); Cabbage Palm, Hydric (FLUCFCS Code 4281); Mixed Wetland Hardwoods, Disturbed (FLUCFCS Code 6179); Cypress, Disturbed (FLUCFCS Code 6219); Pine, Hydric, Disturbed (FLUCFCS Code 6259); Wetland Shrub, Disturbed (FLUCFCS Code 6319); Freshwater Marsh, Disturbed (FLUCFCS Code 6419); Wet Prairies, Disturbed (FLUCFCS Code 6439); and Disturbed Land, Hydric (FLUCFCS Code 7401), with varying degrees of exotic infestation.  In addition, the site contains 27.26± acres of waters of the U.S., which constitutes approximately 2.3 percent of the project.  The Waters features include Ditch (FLUCFCS Code 514) and Cow Pond (FLUCFCS Code 525). 

The existing area surrounding the project area consists of Daniels Parkway to the north, Lee County’s Wild Turkey Strand Preserve to the south, single-family residential development and undeveloped land to the east, and an FPL easement to the west.

PROPOSED WORK:  The applicant seeks authorization to construct a residential development with associated infrastructure, amenities, and surface water management system, and preserve, enhance, and restore 682.92± acres of indigenous vegetation communities. The proposed project will require the discharge of dredged or fill material in 25.08 acres of wetlands and 20 acres of Waters.  The project’s conservation area totals 682.92± acres and includes 507.43± acres, or approximately 95 percent, of the project’s existing wetlands and 175.49± acres of existing uplands and Waters preserve.  Of the total conservation area, 155.20± acres of wetlands are proposed for Corps mitigation.

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 proposed project will result in 25.08 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 extent practicable by concentrating the majority of the proposed development within the existing cattle pastures. Additionally, wetland impacts have been reduced by approximately 46 percent from applicant’s initial concept plan which proposed 46.76± acres of wetland impacts.  

The proposed project will result in 20 acres of Waters impacts. The Waters proposed for impact consist of man-made features associated with past and present agricultural operations and include Ditch (FLUCFCS Code 514) and Cow Pond (FLUCFCS Code 525).  Impacts to the man-made Waters are necessary to avoid and minimize wetland impacts throughout the project site.

COMPENSATORY MITIGATION – The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:  The applicant proposes to preserve and enhance 155.20± acres of on-site wetlands to offset functional loss associated with the proposed wetland impacts.  The on-site wetland mitigation is part of the project’s overall 682.92± acre conservation area.

CULTURAL RESOURCES:  A Cultural Resource Assessment Survey of the Bennett Property was conducted by Janus Research in February 2005. The Bennett Property encompasses the project site. The report concludes that there are no archaeological or historic resources within the Bennett property. Additionally, the Department of State Division of Historical Resources issued a letter dated January 30, 2006, concurring that no significant historic properties are known to exist within the Fountains DRI (i.e., Bennett Property). 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 but is not likely to adversely affect (MANLAA) for the Eastern indigo snake (Drymarchon corais couperi). The Corps has made this determination based on the applicant’s commitment to implement the U.S. Fish and Wildlife Service’s Standard Protection Measures for the Eastern Indigo Snake during construction of the project and restoration of the conservation area. 

Wood Stork: The Corps has made the determination of may affect 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-MANLAA. The project does not lie within any colony sites and does not permanently affect suitable foraging habitat (SFH).

Red-Cockaded Woodpecker: The project site is 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. Therefore, the proposed federal action is not likely to adversely affect (NLAA) the RCW.

Everglades Snail Kite: No Everglade 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. Therefore, the proposed federal action will have No Effect on the Everglade snail kite.

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 2020-2021 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.

Florida Scrub Jay:  The project site does not contain Florida scrub jay habitat (e.g., scrub oaks). No Florida scrub jays were observed within the project site during the protected species survey. The project is located within the U.S. Fish and Wildlife Service’s consultation area for the Florida scrub jay; however, there are no documented occurrences of scrub jays on the project site.  Therefore, the project will have No Effect on the Florida scrub jay.

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 “LAA.”  However, due to the to the applicant’s proposed conservation measures and commitment to implement the U.S. Fish and Wildlife Service’s Best Management Practices for the species, the Corps has determined that the project is not likely to adversely affect (NLAA) the Florida bonneted bat.   

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.

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.  Our initial determination is that the proposed action would not have a substantial adverse impact on EFH or Federally managed fisheries.  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 Fort Myers Permits Section, 701 San Marco Boulevard, Jacksonville, FL 32207 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, Michael Ornella II, in writing at the Fort Myers Permits Section, 701 San Marco Boulevard, Jacksonville, FL 32207; by electronic mail at Michael.Ornella@usace.army.mil; or, by telephone at (904)232-1498. 

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 decision as to whether a permit will be issued will be based on an evaluation of the impact of the proposed work on navigation and national security.

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: WQC is required from the South Florida Water Management District (SFWMD). SFWMD issued Environmental Resource Permit No. 36-107442-P for the project on May 23, 2023, which provides the required WQC for the site.

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.