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SAJ-2024-03916(SP-JRP)

USACE Jacksonville District, Regulatory Division
Published Dec. 10, 2024
Expiration date: 1/9/2025

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:

If you are interested in receiving additional project drawings associated with this public

notice, please send an e-mail to the project manager by electronic mail at

Josh.R.Pelletier@usace.army.mil .

 

APPLICANT: Malcolm Butters

The Butters Group

6820 Lyon Technology Circle, Suite 100

Coconut Creek, Florida 33073

 

WATERWAY AND LOCATION: The project would affect aquatic resources associated

with Reedy Creek (HUC 03090101). The project site is located at 2001 South

Poinciana Boulevard, Kissimmee, Osceola County, Florida.

 

Directions to the site are as follows: From Kissimmee get on FL-529W and take Exit 16,

then merge onto FL-417S toll road, take Exit 3 onto Osceola Parkway. Get on the

Florida Turnpike and take the Poinciana Blvd Ramp onto FL-535/US-192. Turn Right

onto Poinciana Blvd and continue south to Industrial Lane. Go East on Industrial Lane

to Enterprise Drive and take it to its terminus.

 

APPROXIMATE CENTRAL COORDINATES:   Latitude 28.246953 N°

Longitude -81.483169 W°

PROJECT PURPOSE:

 

Basic: Industrial Development

 

Overall: The applicant’s stated purpose is to develop an industrial facility to warehouse

goods.

EXISTING CONDITIONS: The project site totals 42.10 acres and is currently

undeveloped, consisting of three (3) land use types/vegetative communities.

These land use types/vegetative communities were identified utilizing the Florida Land

Use, Cover and Forms Classification System, Level III (FLUCFCS, FDOT, January

1999). The upland land use type/vegetative community on the site is classified as

Woodland Pastures (2130) and Palmetto Prairies (3210). The wetland/surface water

land use types/vegetative communities on the site are classified as Cypress (621) and

Wet Prairie (6430). The property contains approximately 5.48 acres of wetlands.

 

PROPOSED WORK: The applicant seeks authorization to fill 3.89 acres wetlands

associated with the construction of industrial buildings, associated parking and water

management areas.

 

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 surrounding project area is zoned industrial, and there are active industrial sites

adjacent to the project site. Avoidance and minimization were achieved to the greatest

extent possible as site design was limited due to State requirements that each project

phase have a retention pond. As Enterprise Drive bisects the project site each

parcel/phase needs a retention pond. Thus, the east parcel/phase had limited room for

development as a retention pond sufficient in size to accommodate development was

required for this phase of the project site. This resulted in impacts to the eastern

wetland (W1) onsite. The Enterprise Drive roadway project (a separate Corps

Application) that bisects the project site also required drainage and onsite water

storage. Drainage for the Enterprise Drive Roadway project was directed to the western

parcel (western retention pond) to minimize further impacts to W1 in the eastern parcel.

The closest vacant lots zoned industrial in this fast growth area, and not already

permitted for development, are on the east side of Wetland 1 (W1). These parcels (25-

26-28-6184-000E-0010, 25-26-28-6184-000R-0010) have a significant acreage of

wetlands on site and would result in greater wetland impacts than the chosen site.

Other vacant industrial lots (31-25-29-0000-0033-0000, 31-25-29-0000-0038-0000, 31-

25-29-0000-0046-0000, and 31-25-29-0000-0037-0000) within a 1-mile radius have

significant onsite wetlands or already have other permitted industrial activities onsite

that make them unsuitable to develop for the proposed activity.

Parcel 25-26-28-6186-0001-0010, which has industrial zoning, has significant onsite

wetlands and would result in greater wetland impacts than the proposed 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 debit 1.99 federal credits from the Florida Mitigation bank to

offset the 3.89 acres of direct and secondary wetland impacts.

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. A Cultural Resource Assessment Survey was completed over the Area of Potential Effect (APE) and determined the proposed project will have no effect on cultural resources listed, or eligible for listing in the NRHP, or otherwise of archaeological, historical, or architectural significance. The Division of Historical Resources provided concurrence with the determination, DHR Project File No.: 2022-7269-C, on July 12, 2023. Based on this review and concurrence, the Corps has determined that the project would have No Effect to Historic Properties.

 

ENDANGERED SPECIES: Eastern indigo snake (Drymarchon corais couperi): potential impacts to the Eastern Indigo snake were evaluated using the Eastern Indigo Snake Programmatic Effect Determination Key. Use of the 2010 USFWS Eastern Indigo Snake key resulted in the following sequential determination: A>B>C>D>E>”NLAA” ,not likely to adversely effect the snake. This determination is partially based on the project being conditioned for use of the Service’s Standard Protection Measures for The Eastern Indigo Snake during site preparation and project construction to include the inspection and excavation of all gopher tortoise burrows prior to construction, posting signage throughout the construction site, educating contractors on the identification of the species, and measures that must be taken to avoid disturbance if one is encountered during site work.

 

Wood Stork (Mycteria americana): The proposed activity is within the Core Foraging

Area (CFA) of several wood stork colonies. The nearest active wood stork colony (Lake

Russel) is approximately 9.25 miles southeast of the property. The wood stork is listed

as threatened by the USFWS. This species utilizes various wetland habitats for foraging

and nesting. Although wood storks were not observed during the various field reviews,

suitable habitat (forested wetlands) occur onsite. The CFA for active wood stork

colonies within south Florida is defined as a circular area with an 18.6-mile radius from

the colony. For projects that occur within the CFA of a known wood stork colony, any

impacts to suitable foraging habitat may require habitat compensation. Mitigation

involves the creation of suitable foraging habitat of similar type and hydroperiod as the

areas that are impacted and can often be satisfied through appropriate wetland

mitigation. All impacts to onsite wetland habitat will be offset using mitigation credits

purchased from a mitigation bank within the same watershed. Therefore, habitat compensation is within the service area of a Service-approved mitigation bank and

allows for an A<B<C<D<E “NLAA” determination using the wood stork programmatic

key.

 

Bald Eagle (Haliaeetus leucocephalus): The bald eagle was delisted by USFWS and

FWC in August 2007 as a result of positive recovery of the species. Although the bald

eagle was delisted, it continues to be protected under the Bald and Golden Eagle

Protection Act and the Migratory Bird Treaty Act. Site reviews did not identify any bald

eagle nests on the project site, but there are two active bald eagle nests (OS999 and

OS117) approximately within 1 mile of the project site. These bald eagle nests are

located more than 660-foot from the project boundary, so based on the National Bald

Eagle Management Guidelines they have no potential to affect development of the

project.

 

Gopher Tortoise (Gopherus polyphemus): All onsite uplands are considered potential

habitat for gopher tortoises, and preliminary surveys identified the presence of gopher

tortoises throughout the upland community. A 100% gopher tortoise survey of the site

will need to be conducted prior to development to determine exact gopher tortoise

densities and state permitting requirements. The gopher tortoise is a state-listed,

threatened species of reptile that occupies nearly all upland community types

throughout the state of Florida. Gopher tortoises, their eggs, and their burrows are

protected from harm or harassment. Any gopher tortoise burrows that have the potential

to be impacted as a result of land clearing, construction, or other disturbance must be

relocated out of harm’s way to an approved offsite recipient site. Any gopher tortoise

relocation activities will be permitted through the Florida Fish and Wildlife Conservation

Commission (FWC).

 

Florida Bonneted Bat (Eumpos floridanus): The subject property is located within the

USFWS Consultation Area for the Florida bonneted bat (FBB). The FBB is a state and

federally listed Endangered species, with new guidelines and extended Consultation

Area issued by the USFWS in October 2019. AEC performed a cursory

presence/absence roost survey throughout the property during the September 2021 site

inspection. No FBB or evidence of FBB utilization of the property was observed. A

general lack of suitable roosting habitat (mature, live pine trees), significantly reduces

the potential for FBB utilization of the property. However, foraging habitat is present

within the project area. An A<B<A<B “MANLAA” determination was made using the

consultation key for the FBB and will require the applicant to utilize best management

practices (BMPs) for development projects listed in Appendix D.

 

ESSENTIAL FISH HABITAT (EFH): The Corps has determined that the proposed

action would not have no effect on EFH or Federally managed fisheries within the Lake

Tohopekaliga basin and no further coordination is required.

 

NAVIGATION: The proposed development 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 Josh Pelletier, Washington Regulatory Field Office, 2407 West

Fifth Street, Washington, North Carolina 27889, or via email at

josh.r.pelletier@usace.army.mil within 21 days from the date of this notice.

The decision whether to issue or deny this modification 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,

Josh Pelletier, in writing at the Washington Regulatory Field Office, 2407 West Fifth

Street, Washington, North Carolina 27889; by electronic mail at

josh.r.pelletier@usace.army.mil or by telephone at (910)251-4595.

 

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: The impacts associated with the proposed project

were authorized by the South Florida Water Management District by Individual

Resource Permit No. 49-107858-P. The authorization constitutes certification of

compliance with state water quality standards under section 401 of the Clean Water Act.

 

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.

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