SAJ-2024-01593 (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) for Bellmar.  An application for a Section 404 Permit for Bellmar was originally submitted to the Corps on December 16, 2020. The State of Florida assumed Section 404 permitting authority on December 22, 2020, and the application was transferred to the Florida Department of Environmental Protection (FDEP) for processing shortly thereafter. The FDEP issued a Public Notice for the Project on August 16, 2022. The U.S. Fish and Wildlife Service (USFWS) provided technical assistance review of Bellmar and issued a Technical Assistance Memorandum to the FDEP on September 18, 2023, describing its review and  determinations.  A second Public Notice was issued for Bellmar on November 6, 2023, incorporating additional information from the USFWS, and a public meeting was held on December 7, 2023. As a result of a February 15, 2024 federal court decision, the Corps is once again the sole Section 404 permitting authority for the State of Florida, and the application for Bellmar has returned to the Corps for processing. The following is a description of the application:

WATERWAY AND LOCATION:  The Bellmar site, including on-site preservation areas, totals 5,105.49± acres and is located in Sections 1, 2, 3, 10, 11, 12, 15, and 22; Township 49 South; Range 28 East; Collier County. The site contains approximately 2,288.99± acres of freshwater wetlands and 27.43± acres of other surface waters located within the Union Canal Watershed (10-HUC # 0309020404) of the Big Cypress Drainage Basin.

Directions to the site are as follows:  From 1-75, take exit 111 to Immokalee Road/County Road (CR) 846, head east on Immokalee Road for approximately 10.1 miles, and turn right (east) on Oil Well Road/CR 858 to the intersection with Oil Well Grade Road. The Bellmar site is located approximately 4.0 miles south of the intersection.

PROJECT PURPOSE:  Basic:  Mixed used development

Overall:  Construct a master planned mixed-use community within rural eastern Collier County.

EXISTING CONDITIONS:  Wetlands within the Bellmar site constitute a total of 2,288.99± acres, or approximately 45 percent of the site. The majority of these wetlands serve as water-retention reservoirs for permitted agricultural operations. The wetlands are generally forested and dominated by cypress with areas of cypress/pine, hydric pine, mixed wetland hardwood, and freshwater marsh habitats. The wetlands contain varying degrees of exotic infestation, including the exotic species Brazilian pepper, Peruvian primrose willow, torpedograss, paragrass, and West Indian marsh grass. Exotic vegetation is most dense where wetlands border agricultural fields. The hydrology of the landscape within and surrounding the site has historically been affected by roadways, ditches, and permitted agricultural activities.

The land use types Cropland and Pastureland (FLUCFCS Code 210); Row Crops (FLUCFCS Code 214); Rural Open Land (FLUCFCS Code 260); and Low Pasture, Hydric (FLUCFCS Code 262) compose 43.7 percent (2,231.21± acres) of the site. The native areas on-site are dominated by Cypress, Disturbed (FLUCFCS Code 6219), which composes 23.8 percent of the site (1,214.40± acres). Native upland habitats are dominated by Pine Flatwoods, Disturbed (FLUCFCS Code 4119), which composes 8.5 percent of the site (436.80± acres). The other 24.0 percent of the Project site consists of a variety of different land uses.

The existing area surrounding the Bellmar site consists of residential development to the west (Golden Gate Estates) and agricultural lands and Oil Well Road to the north of the Project; Camp Keais Strand, an undisturbed string of wetlands stretching north to south, is located on the eastern portion of the site. The Florida Panther National Wildlife Refuge and undeveloped lands are located to the south.

PROPOSED WORK:  The applicant seeks authorization to discharge fill material in 62.32± acres of wetlands and to excavate 69.91± acres of wetlands. In addition, 12.00± acres of wetlands would be secondarily impacted, as they would become isolated by surrounding development. Proposed wetland impacts are limited primarily to infrastructure improvements to allow for road crossings and construction of surface water management facilities.  Impacts would be limited primarily to lower quality wetlands which are part of existing agricultural operations.

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:  Bellmar utilizes the rural planning strategy adopted through the Collier County in the Rural Lands Stewardship Program (RLSP). The purpose of the RLSP is to create an incentive-based land use overlay system to encourage smart growth patterns in rural areas of the county, known as the Rural Lands Stewardship Area (RLSA). Under the RLSP, new communities can only be established on privately owned lands that meet specific suitability criteria and cannot be constructed on lands designated as Flow-way Stewardship Areas (FSAs) or Habitat Stewardship Areas (HSAs). FSAs are primarily wetlands located within the Camp Keais Strand and Okalacoochee Slough, which establish the primary wetland flow-way systems in the RLSA. HSAs include lands whose natural characteristics make them suitable habitat for listed species, as well as lands that are contiguous to this suitable habitat that form a continuum of landscape that could improve habitat value for listed species. As such, the RLSP requires the applicant to avoid impacts to significant wetlands and listed species habitat by directing development away from FSAs and HSAs.

In addition, the applicant considered several design alternatives for the project to further minimize the discharge of dredge and fill material into waters. The site plan was designed to utilize the existing agriculture fields for the planned development and to avoid and minimize direct impacts to the natural wetland habitats on-site. As noted previously, the discharges to wetlands are limited primarily to infrastructure construction such as road crossings and surface water management facilities. Preserves were designed to connect to Camp Keais Strand, which abuts the eastern boundary of the site. Bellmar will enhance and preserve 92 percent (2,100.17± acres) of on-site wetlands.

COMPENSATORY MITIGATION – The applicant has offered the following compensatory mitigation plan to offset unavoidable functional loss to the aquatic environment:  The project will provide a total of 2,570.66± acres of on-site conservation areas, approximately 2,100.17± acres of which will be utilized as compensatory mitigation for impacts to jurisdictional wetlands. The on-site conservation areas also include 5.77± acres of isolated wetland preservation, 4.22± acres of wetlands assessed as secondarily impacted, 0.60± acre of wetland impact associated with a boardwalk within the conservation areas, 14.48± acres of surface water preservation, and 15.87± acres upland berms and trails to remain.  In addition, the on-site conservation areas include 429.55± acres of upland preservation and enhancement that is not being conducted as Section 404 mitigation for wetland impacts. This upland preservation and enhancement is nonetheless included in the overall conservation acreage.

The on-site compensatory wetland mitigation includes the enhancement and preservation of 2,100.17± acres of wetlands. Within this area, exotic vegetation will be hand removed from 1,872.38± acres of wetlands. Supplemental planting will be conducted in hand removal areas where exotic vegetation currently exceeds 50 percent coverage if, after two years, natural recruitment has not occurred or if sufficient coverage of native vegetation has not been achieved. Mechanical removal of exotics will be conducted within 227.79± acres of wetlands with greater than 75 percent cover by exotic species. After exotic removal, these areas will be graded to wetland elevations, and planted with native vegetation.

The mitigation plan also includes the preservation and enhancement of 5.77± acres of isolated wetlands and the preservation and enhancement of 429.55± acres of native upland habitat. The preservation and enhancement of isolated wetlands and native upland habitats are not being conducted as mitigation for wetland impacts and are separate from and in addition to compensatory mitigation provided by Bellmar.  By providing mitigation close to the impact site and within the same watershed where wetland impacts are proposed to occur, the potential loss of wetland function associated with Bellmar will be replaced by the proposed mitigation.

CULTURAL RESOURCES:  The Corps has evaluated the undertaking for effects to historic properties as required under Section 106 of the National Historic Preservation Act and has followed the guidelines of 33 CFR Part 325, Appendix C. An archaeological and historical survey of the Project site was conducted by Archaeological Consultants, Inc. (ACI) in July 2006. No archaeological or historic sites were documented during the survey. The Florida Department of State, Division of Historical Resources (DHR) issued a letter dated August 29, 2007, indicating concurrence with ACI’s determination. The DHR letter states that development of the Bellmar site will have no effect on any historic properties eligible for listing in the National Register of Historic Places, or otherwise of historical or archaeological value. Therefore, the Corps has determined that Bellmar would have No Potential to Cause Effects to Historic Properties.

ENDANGERED AND THREATENED SPECIES:  The Corps has determined the proposed action will have no effect on the red-cockaded woodpecker (Picoides borealis); may affect but is not likely to adversely affect the Everglade snail kite (Rostrhamus sociabilis plumbeus); is not likely to adversely affect the Eastern indigo snake (Drymarchon corais couperi) and wood stork (Mycteria americana); may affect the Florida panther (Puma concolor coryi), crested caracara (Caracara cheriway) , and tri-colored bat (Perimyotis subflavus) (a species that is not currently listed but has been proposed for federal listing); and may affect, and is likely to adversely affect the Florida bonneted bat (Eumops floridanus), subject to further consultation with the USFWS. No critical habitat has been designated for Eastern indigo snake, wood stork, crested caracara, red-cockaded woodpecker, Florida panther, or tri-colored bat. Critical habitat has been designated for the Everglade snail kite and Florida bonneted bat.  The Bellmar site is not located within the critical habitat for the Everglades snail kite; the southern conservation area within the Bellmar site contains critical habitat for the Florida bonneted bat.

The Corps will request the concurrence from USFWS on the determinations for the Everglade snail kite, red-cockaded woodpecker, Eastern indigo snake, and wood stork via a separate letter. The letter will also request the initiation of formal consultation on the crested caracara, Florida panther, Florida bonneted bat, and tri-colored bat. The following provides a summary and justification for each effects determination:

The project site is located in an area where the Everglade snail kite, a federally endangered species, may occur.  Everglade snail kites have been documented foraging on the Bellmar site in areas designated as Cropland and Pastureland (FLUCFCS Code 210) and as Wetland Mixed Hardwood Conifer (FLUCFCS Code 6309). No Everglade snail kite nesting activities have been observed within the Bellmar site. Critical habitat has been designated for the Everglade snail kite; however, the site is not located within or adjacent to this critical habitat. On-site wetland mitigation and the creation of Bellmar’s lake buffer and stormwater management ponds, with associated littoral zones and native plantings, will increase the potential foraging habitat for the Everglade snail kite within the landscape. As such, the Corps anticipates the proposed action may affect but is not likely to adversely affect the Everglade snail kite.

The Bellmar site includes cover types that could be used by red-cockaded woodpeckers, a federally endangered species, if situated in an appropriate landscape. Surveys for red-cockaded woodpeckers, conducted by the applicant’s agent, did not reveal the presence of red-cockaded woodpecker within the Bellmar site and no cavities in live trees (which could be excavated by red-cockaded woodpecker) were documented. According to the Florida Fish and Wildlife Conservation Commission (FWCC) database of documented occurrences of listed species, there are no documented red-cockaded woodpecker colonies within the Bellmar site. The nearest documented red-cockaded woodpecker colony is located approximately seven miles southwest of the site. Therefore, the Corps anticipates the proposed action will have no effect on the red-cockaded woodpecker.

The Bellmar site is located in an area where the eastern indigo snake, a federally threatened species, may occur. Surveys conducted within the Bellmar site by the applicant’s agent, did not reveal the presence of eastern indigo snake or its commensal species, the gopher tortoise; no gopher tortoise burrows were identified during the surveys. The applicant will implement an eastern indigo snake management plan at the Bellmar site which follows the USFWS guidelines outlined in the Standard Protection Measures for the Eastern Indigo Snake. Using the USFWS North and South Florida Programmatic Effect Determination Key results in the following sequential determination: A>B>C>D “not likely to adversely affect”.

The Bellmar site is located within the Core Foraging Area (CFA) for three wood stork colonies. The wood stork is federally listed as threatened. In addition, surveys conducted within the Bellmar site by the applicant’s agent revealed documented occurrences of wood storks. Habitat compensation for impacts to wetlands and waters that may be used by wood storks will be provided through the on-site wetland compensatory mitigation.  Using the wood stork key provided in the USFWS’s May 18, 2010 South Florida Programmatic Concurrence Letter results in the following sequential determination: A > B > C > E “not likely to adversely affect”.

Crested caracara surveys have been conducted within the Bellmar site with documented caracara nest locations. USFWS Draft Species Conservation Guidelines, South Florida, Audubon’s Crested Caracara was referenced for the effect determination for Bellmar. Use of the guidelines results in the determination that the proposed action may affect the crested caracara. The applicant has proposed a management plan for the crested caracara to minimize the potential for disturbance to nesting individuals. If construction activities are to occur within the primary zone of an active nest identified during the most recent nesting season, restoration of caracara nesting and foraging habitat on a scale equal to the portion of the breeding territory that is impacted by construction activities will be conducted. The USFWS’s Florida Ecological Services Office and the FWCC will be contacted prior to start of the construction activities and will provide the location and extent of proposed restoration activities. Once restoration activities have been completed, the restored habitat will be maintained in perpetuity and managed in a state that supports use by crested caracara.

The Bellmar site contains cover types that could be used by the bonneted bat and tri colored bat for foraging and roosting if situated in an appropriate landscape. The Florida bonneted bat is federally listed as endangered and the tri colored bat is a species proposed for federal listing under the Endangered Species Act. Florida bonneted bat calls were recorded during an acoustic survey conducted at the Bellmar site by the applicant’s agent. According to data available through the USGS North American Bat Monitoring Program, the tri-colored bat has been documented via acoustic surveys within adjacent properties, including Golden Gate Estates. The October 22, 2019, the Florida Bonneted Bat Consultation Guidelines were used to conduct a sequential effect determination. Use of the key resulted in the following determination for the bonneted bat: 1a > 2a > 3b > 6a > 7a > 8b > “May affect and is likely to adversely affect” (LAA). The applicant has proposed to implement several best management practices set out in the Florida Bonneted Bat Consultation Key. Implementation of best management practices could change the LAA determination to “may affect, not likely to adversely affect”. Potential direct effects to the tri-colored bat include harassment by construction activities, and disruption of normal behaviors as a result of the conversion of available habitat for roosting, foraging, breeding, and dispersing. Potential indirect effects include reduced foraging and roosting opportunities due to habitat loss. As a result, the Corps anticipates the proposed action may affect the tri-colored bat.

The Bellmar site is within the USFWS designated Focus Areas for the Florida panther. Florida panthers and their sign have been documented within the Bellmar site during wildlife surveys conducted by the applicant’s agent. Application of the Florida Panther Effect Determination Key (February 19, 2007) results in keyed responses A., B., which is a “may affect” determination under the Key.  Bellmar is greater than one acre.  The discharges authorized by the Corps permit will authorize discharges associated with components of a project that, once developed, is projected to increase vehicle traffic in the area. Bellmar also includes regional conservation measures that will be implemented to preserve, restore, and connect potential panther habitat. These conservation measures include the preservation and restoration of lands within the Camp Keais Strand and other areas of ecological significance through the Collier County RLSP, including the preservation of two wildlife corridors that will provide connectivity from the Florida Panther National Wildlife Refuge through Camp Keais Strand and Shaggy Cypress Swamp.  In addition, the applicant will, at its sole cost and expense, construct or fund the construction of five wildlife crossings with associated wildlife fencing within the geographic region of Bellmar.

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 U.S.C. §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 previously 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, Florida 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, Stephen Flemming, 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 USFWS, 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 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 South Florida Water Management District (SFWMD). The Project was conceptually approved  by SFWMD (Permit No. 11-03949-P) the conceptual approval constitutes State water quality certification.

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.