SAJ-2024-02212 (SP-NDF)

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 Ten Mile Canal. The project site is located northwest of the intersection of Alico Road and US Highway 41 (Tamiami Trail) Fort Myers, in Section 6, Township 46S, Range 25E, Lee County, Florida.

Directions to the site are as follows: From the intersection of I-75 and CR 840 (Alico Road) proceed 3 miles west. Site is to the northeast of the intersection of Alico Road and US 41.

PROJECT PURPOSE:  Basic: The basic project purpose is to provide multi-use development and stormwater management.

Overall: The overall project purpose is to provide multi-use development and stormwater management in southern Lee County.

EXISTING CONDITIONS: The project area is a 46.93-acre undeveloped property that supports a mixture of previously cleared lands, borrow pond, disturbed forested wetlands, and disturbed uplands. The wetland system consists of a 26.71-acre freshwater system comprised of Wetland Hardwood, Inland Pond & Slough, Cypress, and mixed wetland forest. Non-native vegetation has invaded the site and dominates the forested communities. The existing area surrounding the project area consists of an interchange to the south, Tamiami Trail and commercial/residential areas to the west, existing businesses and Ten Mile Canal to the north, and industrial/commercial uses to the east.

PROPOSED WORK: The applicant seeks authorization to discharge fill material in approximately 8 acres of wetlands for the construction of a multi-use development and stormwater management system. An Approved Jurisidictional Determination has not been verified by this project. The depictions of jurisdiction are the applicant’s interpretation, and the Corps has not determined the jurisdictional status of the aquatic resources at this 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:  “The design of the site considered the previous land clearing activities and the location of jurisdictional wetlands. As stated previously, the entire site has been invaded by invasive vegetation. The lack of connection to other natural areas, and heavy urbanization of the surrounding lands further reduces the habitat potential and wetland functional value of the wetlands on site. Wetland impacts were confined to a small portion of the forested wetlands dominated by earleaf acacia, and within the man-made borrow area. The small cypress wetland, mixed hardwood area, and the balance of the disturbed forested wetlands were not included in the development plan.”

COMPENSATORY MITIGATION – The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:  “The Applicant intends to purchase wetland mitigation bank credits to off-set wetland functional loss on the site resulting from the proposed development. The ecological value of the functions provided by the existing wetlands is low, and purchase of mitigation bank credits will provide greater long-term ecological value than the functional value of the area of impact. The use of a mitigation bank provides a regional ecological value that is far greater than the value of the wetlands to be affected by the project.”

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:  The Corps has determined the proposed project may affect, but is not likely to adversely affect the Wood Stork (Mycteria americana), Eastern Indigo Snake (Drymarchon couperi), and Tricolored Bat (Perimyotis subflavus).

Wood Stork: The Corps has determined the proposed project may affect but is not likely to adversely affect the Wood Stork. The Corps evaluated potential impacts to the wood stork using the Wood Stork Key South Florida Consultation Key (August 2017). Use of this key resulted in the sequential determination A>B>C>D>E>Not Likely to Adversely Affect. The project lies within the 13-mile Core Foraging Area (CFA). Wood storks occur in a wide variety of wetland habitats. Typical foraging sites for the wood stork include freshwater marshes and stock ponds, shallow, seasonally flooded roadside and agricultural ditches, narrow tidal creeks and shallow tidal pools, managed impoundments, and depressions in cypress heads and swamp sloughs. According to the Ecological Assessment Report, shallow surface waters and emergent vegetative communities within and adjacent to the project corridor may provide suitable foraging habitat for the wood stork. The applicant is proposing to replace impacts to suitable foraging habitat by providing mitigation at an approved mitigation bank which is within the appropriate CFA. The mitigation habitat will match the hydroperiod of the proposed impacts, and the project is not contrary to the Habitat Management Guidelines for the Wood Stork in the Southeast Region. The Not Likely to Adversely Affect determination will be ensured by the permit verification being conditioned with the specified mitigation requirements. In consideration of the key sequence, additional coordination with the USFWS is not required. The USFWS previously indicated that they concur with determinations of not likely to adversely affect based on the key; and, that no additional consultation is required.

Eastern Indigo Snake: The Corps has determined the proposed project may affect but is not likely to adversely affect the Eastern Indigo Snake. The Corps evaluated potential impacts to the eastern indigo snake using the Eastern Indigo Snake Programmatic Determination South Florida Determination Key 2017.  Use of this key resulted in the sequential determination A>B>C>D>Not Likely to Adversely Affect due to the property having no gopher tortoises, the species not being observed during the field inspection, and due to the permit verification being conditioned for the use of USFWS’ Standard Protection Measures for the Eastern Indigo Snake during site preparation and project implementation.  In consideration of the key sequence, additional coordination with the USFWS is not required.  The USFWS previously indicated that they concur with determinations of not likely to adversely affect based on the key; and, that no additional consultation is required.

Tricolored Bat: The species is listed as an Information for Planning and Consultation (IPAC) species in the Duval County range, per USFWS, and there may be 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. If the tricolored bat were to be present within the project area, 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 initiate consultation. 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. 

The Corps has determined the proposal may affect the Florida Panther (Puma concolor coryi), Puma concolor (all subsp. except coryi), and the Florida bonneted bat (Eumops floridanus) or its designated critical habitat. The Corps will request initiation of formal consultation with the Fish and Wildlife Service pursuant to Section 7 of the Endangered Species Act by separate letter. 

The Corps has determined that the project would have no effect on the Everglade Snail Kite (Rostrhamus sociabilis plumbeus), West Indian Manatee (Trichechus manatus) and critical habitat, Crested caracara (Caracara plancus audubonii), Eastern Black Rail (Laterallus jamaicensis ssp. jamaicensis), American Crocodile (Crocodylus acutus), American Alligator (Alligator mississippiensis), Rufa Red Knot (Calidris canutus rufa), Miami Blue Butterfly (Cyclargus thomasi bethunebakeri), Monarch Butterfly (Candidate Danaus plexippus), Smalltooth Sawfish (Pristis pectinate) and sea turtles including the Green Sea Turtle, (Chelonia mydas), Kemp’s Ridley Sea Turtle (Lepidochelys kempii), and Loggerhead Sea Turtle (Caretta caretta). These species’ ranges do not include this area or habitat to support these species on site. Therefore, routes to effects for these species were not reviewed.

On July 15, 2024, the Corps utilized the Resources Screening Tool (RST) report.  The RST indicated that the Information for Planning and Consultation (IPAC) species mentioned above are found within the project area. 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): The project is located within a wetland mixed community located inland of waters considered to be EFH; therefore, the Corps has determined that the proposed project would not have a substantial adverse impact on EFH. 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 Utah Permits Section, 533 West 2600 South, Bountiful, Utah 84010 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, Nicole Fresard, in writing at the Utah Permits Section, 533 West 2600 South, Suite 150, Bountiful, Utah 84010, by electronic mail at Nicole.D.Fresard@usace.army.mil or, by telephone at (801) 295-8380 Extension 8321. 

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: Quality Certification may be required from the South Florida Water Management Service.

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.